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Costa v. Sears Home Improvement Products, Inc.

United States District Court, W.D. New York

December 15, 2014

CHRISTINA COSTA, Plaintiff,
v.
SEARS HOME IMPROVEMENT PRODUCTS, INC. and SEARS HOLDINGS CORPORATION, Defendants

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For Christina Costa, Plaintiff: Anthony J. LaDuca, LEAD ATTORNEY, LaDuca Law Firm LLP, Rochester, NY; Michael R. Law, LEAD ATTORNEY, Phillips Lytle LLP, Rochester, NY.

For Sears Home Improvement Products, Inc., Sears Holdings Corporation, Defendants: Jacqueline Phipps Polito, Pamela S.C. Reynolds, LEAD ATTORNEYS, Littler Mendelson, P.C., Rochester, NY.

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DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge.

INTRODUCTION

Plaintiff Christina Costa (" Plaintiff') brings this retaliation action against Defendants

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Sears Home Improvement Products, Inc. (" SHIP" ), and Sears Holdings Corporation (collectively, " Defendants" ) pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq. (" Title VII" ). (Dkt. 1). Plaintiff alleges Defendants terminated her employment in unlawful retaliation for her participation in various protected activities. ( Id.). Presently before the Court is Defendants' Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56 (Dkt. 18), Plaintiff's Motion for Sanctions and Motion to Compel pursuant to Fed.R.Civ.P. 37 (Dkt. 23), and Defendants' request for sanctions pursuant to Fed.R.Civ.P. 11 (Dkt. 32 at ¶ 60). For the reasons set forth below, these motions and requests are denied.

FACTUAL AND PROCEDURAL BACKGROUND

SHIP is a wholly-owned subsidiary of Sears, Roebuck, and Co. which is a wholly owned subsidiary of Defendant Sears Holdings Corporation. (Dkt. 18-1 at ¶ 1; Dkt. 22-1 at ¶ 1).

SHIP provides home improvement services to customers, and employs salespeople who work out of an office but meet with customers in their homes to discuss SHIP'S home improvement services. (Dkt. 18-1 at ¶ 2; Dkt. 22-1 at ¶ 2). Local SHIP offices maintain a staff of employees who support the salespeople and sales contracts with customers. (Dkt. 18-1 at ¶ 2; Dkt. 22-1 at ¶ 2).

In 2002, Plaintiff began working for SHIP as a sales representative at its Rochester office. (Dkt. 18-1 at ¶ 3; Dkt. 22-1 at ¶ 3). Approximately two years after she was hired, Plaintiff applied for and was offered the position of office coordinator for the Rochester office, an hourly position. (Dkt. 18-1 at ¶ 5; Dkt. 22-1 at ¶ 5).

Plaintiff's position entailed tracking paperwork for sales contracts, entering production part orders, processing payments for subcontractors, training new sales representatives, and answering phones. (Dkt. 18-1 at ¶ 6; Dkt. 22-1 at ¶ 6; Dkt. 18-3 at 11-12, 21-22). Plaintiff supervised one person, Maria Paris, a " branch assistant," whose position involved assisting Plaintiff in her office coordinator duties. (Dkt. 18-1 at ¶ 7; Dkt. 18-3 at 12; Dkt. 18-4 at 6:10-14; Dkt. 22-1 at ¶ 7).

While employed as office coordinator, Plaintiff received performance evaluations of " consistently meeting expectations" and " far exceeding" expectations. (Dkt. 18-1 at ¶ 8; Dkt. 22-1 at ¶ 8). Plaintiff also received awards for her performance, such as being " top in the company" for her position three years in a row and winning an all-expense paid cruise. (Dkt. 18-1 at ¶ 8; Dkt. 22-1 at ¶ 8; Dkt. 18-3 at 64, 70-71; Dkt. 18-7 at ¶ 5; Dkt. 22-11 at ¶ 6).

In late 2008, SHIP restructured internally, and Plaintiff and Ms. Paris' job titles changed so that both held the position of " District Administrator." (Dkt. 18-1 at ¶ 9; Dkt. 22-1 at ¶ 9; Dkt. 18-4 at 6:10-14; Dkt. 18-7 at ¶ 6; Dkt. 22-11 at ¶ 7). Ms. Paris became Plaintiff's equivalent in the office. (Dkt. 18-1 at ¶ 10; Dkt. 22-1 at ¶ 10; Dkt. 18-4 at 6:10-14).

Prior to February 2008, Michelle Kielbasinski, a Field Sales Representative out of SHIP's Rochester office, filed a complaint against Defendants and Sears, Roebuck & Co. with the New York State Division of Human Rights (" NYSDHR" ), claiming that she had been discriminated against in her employment. (Dkt. 18-1 at ¶ 11; Dkt. 22-1 at ¶ 11; Dkt. 18-4 at 111).

In February 2008, the NYSDHR held a hearing concerning Ms. Kielbasinski's NYSDHR complaint. (Dkt. 18-1 at ¶ 12; Dkt. 22-1 at ¶ 12; Dkt. 18-4 at 102:2). Ms. Kielbasinski asked that Plaintiff testify

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at the February 2008 hearing on her behalf, and Plaintiff agreed. (Dkt. 18-1 at ¶ 13; Dkt. 22-1 at ¶ 13; Dkt. 18-3 at 27, 30; Dkt. 18-4 at 100:23-25; 101:2-3). Plaintiff alleges that Regional Human Resources Manager Charles Klinzing, District General Manager Joseph Altieri, and Regional Sales Manager Joseph Pinchbeck were present at the February 2008 hearing. (Dkt. 22-11 at ¶ 8).

In September 2008, Plaintiff received another performance review, where she again was rated as " consistently meeting" or " exceeding" expectations. (Dkt. 18-1 at ¶ 14; Dkt. 22-1 at ¶ 14). However, Plaintiff alleges that after testifying, one of Defendants' regional managers, Joseph Pinchbeck, " warned Plaintiff that she should be a good employee and made veiled threats including telling Plaintiff 'the company did not like loose lips.'" (Dkt. 18-3 at 27; Dkt. 22-1 at ¶ 14; Dkt. 22-11 at ¶ 9). Plaintiff claims that from January 2009 through Spring 2009, Plaintiff witnessed a number of " very disturbing events" occurring at work to Ms. Kielbasinski, and Plaintiff claims that she asked Mr. Salvaggio, District General Manager, to take action in response to each of these events. (Dkt. 22-1 at ¶ 14; Dkt. 22-11 at ¶ ¶ 10-11). Plaintiff claims that Mr. Salvaggio told her that these events were none of her business. (Dkt. 22-1 at ¶ 14; Dkt. 22-11 at ¶ 11). After Ms. Kielbasinski quit her position in March 2009, Plaintiff alleges that Mr. Salvaggio told Plaintiff, " [t]he problem is gone; enough of this drama. You need to be a team player." (Dkt. 22-1 at ¶ 14; Dkt. 22-11 at ¶ 11). Plaintiff claims that Mr. Salvaggio then told her he did not care how long someone had worked for Sears and that he would terminate them if they caused problems. (Dkt. 22-1 at ¶ 14; Dkt. 22-11 at ¶ 12). According to Plaintiff, Mr. Salvaggio made similar threats throughout 2009. (Dkt. 22-1 at ¶ 14; Dkt. 22-11 at ¶ 13).

Plaintiff alleges that, prior to December 2009, Ms. Kielbasinski's attorney requested that Plaintiff submit an affidavit to the NYSDHR on Ms. Kielbasinski's behalf. (Dkt. 18-1 at ¶ 15; Dkt. 22-1 at ¶ 16; Dkt. 1 at ¶ 16). Plaintiff claims that she prepared and delivered the affidavit directly to the NYSDHR in December 2009. (Dkt. 18-1 at ¶ 16; Dkt. 22-1 at ¶ 16; Dkt. 1 at ¶ 17).[1] According to Plaintiff, she told Ms. Paris about filing this affidavit and expressed her concerns that she would be fired in retaliation. (Dkt. 18-1 at ¶ 18; Dkt. 22-1 at ¶ ¶ 16, 18; Dkt. 22-11 at ¶ 23; Dkt. 18-3 at 37-38). However, Ms. Paris does not recall Plaintiff telling her that she submitted an affidavit on Ms. Kielbasinski's behalf. (Dkt. 18-1 at ¶ 19; Dkt. 22-1 at ¶ 19; Dkt. 18-4 at 14:20-24; 15:7-23).

On December 1, 2009, the NYSDHR held a hearing concerning Ms. Kielbasinski's allegations. (Dkt. 22-1 at ¶ 16). Some of SHIP'S representatives, including Mr. Salvaggio, Mr. Klinzing, and Mr. Pinchbeck were at the December 2009 hearing. (Dkt. 22-1 at ¶ 16; Dkt. 22-11 at ¶ 8). Plaintiff's name was raised at the hearing, and Ms. Kielbasinski's attorney named Plaintiff as an individual available and willing to discuss Ms. Kielbasinski's allegations that she was not afforded annual reviews. (Dkt. 22-1 at ¶ 17; Dkt. 22-7 at 18-19).

Plaintiff alleges that, shortly after the December 2009 NYSDHR hearing, Plaintiff

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was no longer included in weekly management team meetings, and was told by Mr. Salvaggio to " speak only when spoken to." (Dkt. 22-11 at ¶ ¶ 18-19). Plaintiff claims that Mr. Salvaggio then stopped any communication " except necessary instructional talk" with Plaintiff until her termination five months later. ( Id. at ¶ 22).

Mr. Kirnan and Mr. Salvaggio testified that Plaintiff started having job performance issues in 2009 that were a frustration to other employees in the Rochester office, and that by March 2010, these issues were " prevalent" and " inhibiting." (Dkt. 18-1 at ¶ 21; Dkt. 18-4 at 57:11-12; Dkt. 18-7 at ¶ ¶ 8-12). Reportedly, Plaintiff questioned instructions from managers, refused to follow instructions, researched projects outside of her job description, and was often tardy for work. (Dkt. 18-1 at ¶ 22; Dkt. 18-4 at 48:17-19; 49:11-12; Dkt. 18-4 at 11:10-19; Dkt. 18-7 at ¶ ¶ 8-9). According to Mr. Salvaggio, although Plaintiff was scheduled to work from 8:00 a.m. to 5:00 p.m. Monday through Friday, she would " frequently" arrive 20-30 minutes late " most days." (Dkt. 18-7 at ¶ 8). In addition, Mr. Salvaggio stated that after Plaintiff's husband became one of the SHIP subcontractors in 2010, Plaintiff would " scrutinize" the paperwork for her husband's sales contracts, to ensure that he was receiving all of the pay to which she believed he was entitled. ( Id. at ¶ 15). Mr. Salvaggio testified that Plaintiff would sometimes take the paperwork home with her, and that this was a confidentiality issue and was outside of Plaintiff's job description. ( Id.).

Plaintiff claims that in this time period, a co-worker, Mr. Regnet, told Plaintiff to approve paperwork that Plaintiff believed to be inappropriate, and she investigated potential circumstances of double billing and overpayment. (Dkt. 22-1 at ¶ 22; Dkt. 22-11 at ¶ 28). Plaintiff claims that she took her concerns to Mr. Salvaggio and was told to do what Mr. Regnet said, despite the fact that Plaintiff believed the actions would be in violation of company policy. (Dkt. 22-1 at ¶ 22; Dkt. 22-11 at ¶ 29).

Mr. Salvaggio testified that he began to document Plaintiff's performance issues in June 2009. (Dkt. 18-1 at ¶ 23; Dkt. 18-7 at ¶ ¶ 10-11, Dkt. 18-8 at 5-6). However, Plaintiff claims that these personal notes were shredded by Defendants in December 2012. (Dkt. 22-1 at ¶ 23). Plaintiff reportedly did not receive a formal performance review in 2009 due to a wage freeze. (Dkt. 18-7 at ¶ 11). From January to March of 2010, Mr. Salvaggio stated that Plaintiff arrived late for work on seven occasions, and this lateness was recorded in his " personal notes." (Dkt. 18-7 at ¶ 12). Plaintiff claims that she was never informed of any performance issues in 2009. (Dkt. 22-1 at ¶ 21; Dkt. 22-11 at ¶ 24). Plaintiff also alleges that she was the only employee in the Rochester office who did not receive a mandatory review in March 2010. (Dkt. 22-11 at ¶ 32).

Mr. Salvaggio contacted SHIP'S Human Resources department in March 2010 for guidance on how to address Plaintiff's conduct. (Dkt. 18-1 at ¶ 24; Dkt. 18-7 at ¶ 13). Mr. Salvaggio then prepared a performance plan for improvement (" PPI" ) entitled " Documentation of Performance Issues," that addressed, among other things: (1) Plaintiff " investigates and audits projects which do not fall under her job description; " (2) Plaintiff " regularly questions instructions from management; " (3) Plaintiff " takes it upon herself to make decisions on matters that have nothing to do with her; " and (4) if Plaintiff " is asked to do something she feels she is owed an explanation before doing it." (Dkt. 18-1 at ¶ 25; Dkt. 22-1 at ¶ 25; Dkt. 18-7 at

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¶ ¶ 13-16; Dkt. 18-3 at 76-77). The PPI also stated that Plaintiff had been tardy on at least seven occasions, and that she did not reflect her tardiness on her timecard. (Dkt. 18-1 at ¶ 26; Dkt. 22-1 at ¶ 26; Dkt. 18-3 at 76-77). The PPI warned that submission of " intentionally falsified timesheets constitutes a terminable policy violation." (Dkt. 18-1 at ¶ 28; Dkt. 22-1 at ¶ 25; Dkt. 18-3 at 76-77; Dkt. 18-8 at 8-10).

Prior to April 2010, there was no time clock in SHIP'S Rochester office, and each employee was required to keep track of his or her time manually. (Dkt. 18-1 at ¶ 27; Dkt. 22-1 at ¶ 27; Dkt. 18-7 at ¶ 17). According to Mr. Salvaggio, the District Administrators would deliver their timecards to Mr. Salvaggio at the end of the week, Mr. Salvaggio would sign each timecard, and they would be faxed to the SHIP corporate office in Pittsburgh by a District Administrator. (Dkt. 18-7 at ¶ 17).

SHIP's Code of Conduct states that falsification of time records is an infraction that can lead to termination of employment. (Dkt. 18-1 at ¶ 29; Dkt. 22-1 at ¶ 29; Dkt. 18-5 at ¶ 6). This Code of Conduct is contained in the Associate Handbook that is provided to all employees. (Dkt. 18-1 at ¶ 30; Dkt. 22-1 at ¶ 30; Dkt. 18-5 at ¶ 6).

On April 5, 2010, Mr. Salvaggio met with Plaintiff to deliver the PPI. (Dkt. 18-1 at ¶ 31; Dkt. 22-1 at ¶ 29; Dkt. 1 at ¶ 19; Dkt. 18-7 at ¶ 20). Defendants claim that Plaintiff and Mr. Salvaggio discussed the tardiness and timesheets issue. (Dkt. 18-1 at ¶ 32; Dkt. 18-7 at ¶ 20). Plaintiff claims that there was no discussion of the PPI. (Dkt. 22-1 at ¶ 31). Plaintiff notes that the PPI stated that Mr. Salvaggio would assist Plaintiff with improvements if she submitted an incorrect timesheet, and that Mr. Salvaggio testified that the purpose of the PPI was not to terminate Plaintiff, but to help improve the situation. (Dkt. 22-1 at ¶ 28; Dkt. 23-6 at 18-19).

On April 5, 2010, the same day that Plaintiff received her PPI, four individual employees at the Rochester office reportedly observed Plaintiff arrive approximately 20 minutes late for work. (Dkt. 18-1 at ¶ 33; Dkt. 18-7 at ¶ 21; Dkt. 18-8 at 14, 18-20).

The timesheet that Plaintiff submitted to Mr. Salvaggio on April 9, 2010, stated that Plaintiff arrived for work at 8:00 a.m. on April 5, 2010. (Dkt. 18-1 at ¶ 34).

Mr. Salvaggio contacted Human Resources, submitted Plaintiff's timesheet, and later submitted statements from each of the co-worker witnesses concerning Plaintiff's late arrival to work on April 5, 2010. (Dkt. 18-1 at ¶ 36; Dkt. 18-7 at ¶ ¶ 21-23; Dkt. 18-8 at 14, 16, 18-20). Plaintiff alleges that Mr. Salvaggio submitted a redacted timesheet to Human Resources that removed his approval signature. (Dkt. 22-1 at ¶ 39; Dkt. 22-11 at ¶ 55).

Plaintiff claims that there was an unwritten policy where hourly employees would always fill out timekeeping forms to state 8:00 a.m. as the clock-in time and 5:00 p.m. as the clock-out time to avoid accounting for irregular hours and minutes on each day, and that she had been using that procedure for the almost eight years that she worked for SHIP. (Dkt. 22-1 at ¶ 33; Dkt. 22-11 at ¶ ¶ 47-48, 51). Plaintiff claims that Mr. Salvaggio was aware of this practice and did not inform her that she should change her practices until April 2010. (Dkt. 22-1 at ¶ 33; Dkt. 18-7 at ¶ ¶ 8, 12). Plaintiff also claims that Ms. Paris used this same method of entering time, except that she wrote 3:00 p.m. as her clock-out time because she had a different schedule. (Dkt. 22-1 at ¶ 34; Dkt. 22-11 at ¶ 50). Plaintiff has requested

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copies of Ms. Paris' timesheets to demonstrate that Ms. Paris followed this same method of timekeeping. (Dkt. 23). Plaintiff recalls a time in mid-April 2010 when Ms. Paris had a medical appointment causing her to be approximately two hours late for work, and Mr. Salvaggio told Ms. Paris to put down her usual arrival time of 8:00 a.m. (Dkt. 22-11 at ¶ 56). Plaintiff claims that this supports her allegations of disparate treatment and retaliation. (Dkt. 22-1 at ¶ 44; Dkt. 22-11 at ¶ 56).

According to Sears policy, when there is an allegation that an hourly employee who has been with the company for more than five years has engaged in a terminable offense, the 88Sears Associate Services Organization (" ASO" ) opens a case and assigns an investigator to examine the allegation. (Dkt. 18-1 at ¶ 37; Dkt. 22-1 at ¶ 37; Dkt. 18-5 at ¶ 7). The ASO investigator works with the Regional Human Resources Manager and the unit manager to investigate the allegations. (Dkt. 18-1 at ¶ 37; Dkt. 22-1 at ¶ 37). The ASO must approve any form of discipline, including termination, of the employee. (Dkt. 18-1 at ¶ 37; Dkt. 22-1 at ¶ 37; Dkt. 18-5 at ¶ 7). Mr. Salvaggio and Human Resources worked with the ASO concerning Plaintiff's alleged post-PPI tardiness. (Dkt. 18-1 at ¶ 38; Dkt. 22-1 at ¶ 38; Dkt. 18-7 at ¶ ¶ 23-24). Plaintiff argues the ASO was not provided with all relevant documentation. (Dkt. 22-1 at ¶ 38).

Plaintiff submitted a 25 page response to the PPI. (Dkt. 23-3 at 2-3). In her response, Plaintiff stated that she believed the PPI was " in retaliation." ( Id.).

After completing its investigation, the ASO approved Plaintiff's termination for falsification of a time record. (Dkt. 18-1 at ¶ 42; Dkt. 18-7 at ¶ 27). Mr. Salvaggio testified that the determination to terminate Plaintiff was made by Human Resources, the ASO, and Mr. Salvaggio. (Dkt. 18-7 at ¶ 27).

Plaintiff alleges that she was terminated " as a result of unlawful retaliation for engaging in a protected activity, the last protected act having occurred on April 7, 2010 when she stated the PPI was an act of retaliation." (Dkt. 22-1 at ¶ 44). Plaintiff denies being late to work on April 5, 2010. (Dkt. 23-11 at ¶ 43). Plaintiff notes that she received a bonus check in April 2010 from Tish Edmiston, Regional Director, for Plaintiff's performance of her job duties. (Dkt. 22-11 at ¶ 40).

Plaintiff commenced this lawsuit on April 30, 2012. (Dkt. 1). Plaintiff alleges a single count of retaliation in her complaint. ( Id.). After the deadline for fact discovery on September 16, 2013 (Dkt. 16), Defendants filed a motion for summary judgment on December 31, 2013 (Dkt. 18). On February 17, 2014, Plaintiff filed a motion for sanctions and a motion to compel. (Dkt. 23). The case was transferred to the undersigned on February 21, 2014. (Dkt. 25). Oral argument on these motions was held on May 14, 2014, with the Court reserving decision. (Dkt. 38).

DISCUSSION

I. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes " that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the Court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d

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686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Once the moving party has met its burden, the opposing party " 'must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec., 475 U.S. at 586-87) (emphasis in original). " [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original).

" Summary judgment applies no less to Title VII cases than to commercial cases or other areas of litigation, and plaintiff must still offer 'concrete evidence from which a reasonable juror could return a verdict in [her] favor.'" Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (2d Cir. 1998) (quoting Anderson, 477 U.S. at 242) (internal citations omitted) (alteration in original).

Title VII provides that " [i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice ...


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