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Elice Lippincott v. Target Corporation

July 10, 2012


The opinion of the court was delivered by: Siragusa, J.



This Age Discrimination in Employment ("ADEA") case is before the Court on Defendant Target Corporation's ("Target") motion for summary judgment, filed on January 31, 2012, ECF No. 27. After considering the papers filed on both sides, and having heard oral argument, the Court grants Target's motion.


Pursuant to W.D.N.Y. Loc. R. Civ. P. 56, Target filed a statement of undisputed facts, and Plaintiff Elice Lippincott ("Lippincott") filed statements in response. Based on those statements, and unless otherwise stated, the following facts are undisputed.

Target operates retail stores around the United States selling clothing, toys, household goods, food, beauty supplies, and electronics. Lippincott worked for Target from January 31, 2005, until she resigned on July 7, 2009. She began employment with Target as an Executive Team Leader of Guest Services, and later assumed the position of Executive Team Leader of Hardlines ("ETL-Hardlines"). Lippincott was age 44 when hired, and age 48 at the time of her resignation.

Target's anti-discrimination, anti-harassment and anti-retaliation policies are contained in its Executive Team Member handbook. Target has an open door policy and invites its team members (i.e., employees) to voice concerns about discrimination in the workplace, and enforces its anti-discrimination policy by investigating any complaints of unlawful discrimination. Target prohibits retaliation against applicants or team members who report or oppose unlawful employment practices. When she started her employment with Target, Lippincott received the handbook and reviewed the policies contained in it.

Target also provides training on its policies and practices, including discrimination and harassment in the workplace, and on more than one occasion, Jeffrey Schultz ("Schultz"), Lippincott's supervisor and Target's Store Team Leader ("STL") of its Irondequoit, New York, store, received this training. Target also offers various training classes to managers throughout their employment, which focus on addressing managerial responsibilities in the workplace and other aspects of a managerial position. Plaintiff occasionally attended such training courses during her employment.

Each Target store has a STL who is responsible for the day-to-day operations and supervision of the Executive Team Leaders ("ETL") at that location. Additionally, STLs are responsible for providing feedback to their ETLs. One feedback method employed by STLs is called a Leadership Status meeting-a one-on-one meeting between the STL and ETL to provide feedback on performance, specifically, what areas are going well, what areas need work, and what areas on which the ETL should focus for improvement.

Target also maintains a Counseling and Corrective Action ("CCA") policy, which contains guidelines for corrective action of employees struggling with performance or engaging in misconduct. For performance problems, Target employs a progressive discipline policy. Target's CCA policy has three possible forms of corrective action for performance-based problems: (1) counseling; (2) final warning; and (3) termination. An employee who receives counseling is subject to a 30-day "critical" period, followed by a 6-month "extended period." If the employee exhibits significant and substantial improvement during the extended period, he or she will be removed from the counseling period. If the employee exhibits the same performance-based problem within the critical or extended time period, he or she will be subject to the next level of discipline-a final warning. After receiving a final warning, the employee is subject to a 30-day "critical period," followed by a 12-month "extended period," during which he or she is expected to improve. If the employee does not improve, he or she may be subject to additional discipline, including termination, at the discretion of the management team.

Lippincott began her employment at the Target store in Elk Grove, California, as an ETL for Guest Services. At the Elk Grove store, less than a year into her employment with Target, Lippincott received her first performance counseling. The counseling arose after one of her employees reported observing inappropriate advances made by a male worker towards a female co-worker. Under Target's sexual harassment policy, Lippincott was required to report the conduct to human resources for investigation. However, she failed do so and, as a result, received a performance conduct notice.

Subsequently, upon her request, Lippincott was transferred by Target to its Penfield, New York, store where she became one of two ETLs for Hardlines. In that position, Lippincott was responsible for the direct supervision, assignments, evaluations and discipline of team leaders in a variety of departments, including health & beauty aides, electronics, domestics, toys, and non-clothing items. Then, in February 2008, Target transferred Lippincott to its Irondequoit, New York, store where she became the sole ETL for Hardlines. Target asserts it made the transfer to better position Lippincott to become a STL. Lippincott counters that the transfer was to a struggling store in order to provide a pretext for her eventual dismissal. At the time of the transfer, the Irondequoit STL was Valerie Barbarito ("Barbarito"), and Target concedes that the Irondequoit store was its lower performing store.

Shortly after Lippincott's arrival, Barbarito expressed concerns to the District Team Leader ("DTL"), Randy Joseph, regarding Plaintiff's performance-specifically, her ability to hold her team accountable and to manage execution (such as ensuring transitions, department changes, and the overall presentation or "zone" of the store). In August 2008, Barbarito, who was under 40 at the time, resigned from Target after receiving a final warning for her own significant performance problems.

In about September 2008, Schultz became STL for the Irondequoit Target store. Lippincott and Schultz had worked together previously at the Penfield store where Schultz held an ETL position. At the Penfield store, their working relationship was "fine," and Lippincott "respected [Schultz] and his position." Pl. Dep. at 32:4-6. Schultz and Plaintiff also got along well at the Irondequoit store. Id. at 34:3--10. In contrast to his predecessor, Barbarito, Schultz had high expectations for the store, and, under his supervision, the Irondequoit store improved significantly and was no longer considered underperforming.

As the STL of the Irondequoit store, Schultz issued corrective actions to employees, including Ken Tillman, who was less than 30 years old when he received counseling for his performance that included a final warning. In approximately July 2009, Schultz, along with Lippincott, placed another employee, Christian Lyke ("Lyke"), who was 23 years old at the time, on formal corrective action. Schultz critiqued Lyke for being one of Lippincott's employees who did not follow her instructions. Lyke was subsequently terminated. Schultz also terminated ETL Joshua Norcross, who was 35 years old, for unsatisfactory performance.

In accordance with Target policy, Schultz held monthly Leadership Status meetings with Lippincott to provide feedback on her performance. Generally, during the status meetings, Lippincott and Schultz would discuss some of the business objectives, which she would write down in the "Business Goals" and "My Team" portions of a Leadership Status form. Schultz would subsequently check off the "yes" or "no" boxes under the column "goals achieved," and write comments in the Feedback portion of the Leadership Status form to evaluate Lippincott's performance, then return the form to Lippincott.

In his first feedback to Lippincott in September 2008 on a Leadership Status Form, Schultz informed her that she should improve her talent management skills and provide feedback to her team leaders about performance expectations. Schultz also remarked that Lippincott should improve her execution of the sales plan. Schultz made similar comments in an October 2008 Leadership Status Form, noting that Lippincott had neglected to provide counseling in a timely manner to two team leaders under her supervision and did not meet any of the three business goals for the month.

Schultz reiterated the same problems in Lippincott's January 2009 Leadership Status form. While other areas of the Irondequoit store had improved, Lippincott's hardlines area had not, and under her supervision, her team leaders were becoming problem performers. Schultz encouraged Lippincott to hold her team leaders accountable and "demonstrat[e] some courage and hav[e] some tough conversations with them." Leadership Status form at 2, Def.'s Ex. 16, ECF No. 28-2.

Target has a practice of having its STLs in a district meet monthly with a human resources representative to discuss the performance of their personnel, including any coaching plans for employees and any need to engage in succession planning. In January or February 2009, Schultz began to discuss Lippincott's performance issues and the coachings that he had provided her with Andrea Vaughan ("Vaughan"), the then-Human Resources Business Partner for the District that included the Irondequoit store. Vaughan would visit stores in the district monthly or every other month to monitor performance. Schultz also made his superior, Randy Joseph ("Joseph"), aware of Lippincott's problems, specifically her issues in managing execution and holding accountable her team members who were not performing their core roles.

In or around January or February 2009, Vaughan visited the Irondequoit store and, specifically, Lippincott's work center, identified as a "red" work center, which meant that she was not meeting expectations. Vaughan found that parts of Lippincott's work center were behind, and her zone's appearance was not up to Target standards.

In March 2009, Schultz met with Lippincott and gave her another Leadership Status form. In this feedback, Schultz indicated that Lippincott's "team leader brandwalks were inconsistent and lacked details that were required to bring hardlines results to where they need to be." Pl.'s Dep. at 85:1--86:7; Def.'s Ex.s 17 & 18. In addition, Schultz determined that "safety results and the safety culture for fiscal year 2008 were unacceptable." Pl.'s Dep. at 85:8--86:1; Def.'s Ex.s 17 & 18. Schultz cited an example of Lippincott's lack of oversight of her team members. Specifically, he noted that he had toured Lippincott's work center and created a list of items needing improvement and then distributed the list to Lippincott's employees. This, he stated, was a responsibility Lippincott should have undertaken herself. Schultz indicated to Lippincott that she should be more proactive in developing solutions to the problems that plagued her areas by, for instance, executing a plan for improvement and following up more regularly with her team. Ultimately, Schultz asked her to be more critical of her team in her performance evaluations of them, because she needed a stronger team to attain the results needed.

During early 2009, Schultz and Vaughan discussed Lippincott's performance on at least three occasions, and Vaughan reviewed the coaching notices Schultz had given to Lippincott. On or about April 1, 2009, after reviewing Plaintiff's work performance, Vaughan suggested to Schultz that he place Lippincott on formal counseling. Schultz and Vaughan jointly began to draft Lippincott's counseling notice. Schultz created the first draft of the counseling notice on April 1, 2009.

Lippincott met with Schultz on April 3, 2009, to receive her 2008 annual performance review. At Target, each ETL receives two performance scores out of a total of 100 points. One score represents the ETL's self-evaluation, and the other score represents the evaluation awarded by his or her supervisor. A score of 90 and above is considered outstanding, 80 to 90 is excellent, 80 is average, and a score less than 80 is less than average. Plaintiff's self-evaluation reflected a score of 75, and Schultz provided her a score of 74, or less than average. Schultz's supervisor approved his score, which reflected Lippincott's difficulty in managing talent (including holding her team members accountable for their performance), managing execution (including driving efficiencies with the processes and team members), and maximizing relationships with her team members-all concerns which Schultz had raised in the Leadership Status forms he gave to Lippencort. Schultz also noted that Lippincott was "accepting mediocrities" from her team, and allowing some team members to neglect the tasks assigned to them. Annual Review (Fiscal Year 2008) at 3, Def. Ex. 20, ECF No. 28-2. In her own comments on her performance review, Lippincott agreed that several of her team members were not meeting expectations, and set goals for herself to be more consistent and timely with feedback for her team leaders, and to hold them accountable for their performance.

On April 14, 2009, Schultz again met with Lippincott and provided her with a Leadership Status form, stating that she had not met her goals to improve the efficiency of the presentation team, or to improve guest services scores for the electronics department. Schultz told Lippincott that if she did not hold her team accountable, he would hold her accountable.

As part of its succession planning, Target typically posts open positions or positions which it might, but not necessarily, need to fill on its web site, Target uses the responses to such postings to gauge the amount of talent in the market should it need to fill such positions. Where a position is currently filled but posted due to an employee's performance problems, Target typically omits the exact store location for the position, and only posts the District in which the position is located. Posting of the position does not necessarily mean that the employee holding that position will be replaced, and Target has provided an example of an employee whose position was posted, but he was not replaced.

In April 2009, after Vaughan suggested formal corrective action for Lippincott, Target posted her position at Vaughan's request and with Joseph's approval. Target has two recruitment teams: one team focuses on finding experienced candidates, while the other focuses on recruitment at college campuses. When Vaughan made the requisition for the ETL-Hardlines position, she sought a candidate with experience, which is why the position was posted on the web site. Vaughan did not intend for the Irondequoit store to be identified in the web site posting with the position, and she was unaware that it would be posted in that manner. Through an inadvertent error at the recruiter level, the specific store was identified, rather than identifying the Rochester District as a whole.

On April 29, 2009, Lippincott saw the posting and printed a copy. She met with Kristal Schaffer ("Schaffer"), the ETL of Human Resources for the Irondequoit store to discuss the posting. Lippincott showed Schaffer the posting, said she felt she was being targeted for work performance, and assumed the posting meant she would be discharged. Schaffer referred Lippincott to Target's Integrity Hotline, which Lippincott called the following morning. Lippincott explained in the Hotline call that her job had been posted, that she had not received ...

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