Opinion
No. 05-46-C.
January 31, 2007.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This action arises from the defendant The TJX Companies, Inc.'s (T.J. Maxx) termination of the plaintiff Jeannie Petani's (Petani) employment. Petani's amended complaint provides the following claims: handicap discrimination in violation of G.L. c.151B (Count One); age discrimination in violation of G.L. c.151B (Count Two); negligent infliction of emotional distress (Count Three); intentional infliction of emotional distress (Count Four); false imprisonment (Count Five); and, negligent supervision and retention (Count Six); age and handicap discrimination in violation of G.L. c.151B (Counts One and Two); false imprisonment (Count Five); and, negligent supervision and retention (Count Six).
T.J. Maxx now moves, pursuant to Mass. R. Civ. P. 56, for summary judgment as to Counts One, Two, Five, and Six of the amended complaint. Petani opposes the motion. On this summary judgment record, and where Petani has admitted to stealing from T.J. Maxx, the court allows T.J. Maxx's motion for summary judgment.
BACKGROUND
The undisputed material facts and the disputed facts viewed in the light most favorable to Petani are as follows.
In July 2001, Elizabeth Wozniak (Wozniak), the manager of the T.J. Maxx store in Westborough interviewed Petani for an associate position. Born on September 19, 1947, Petani was then fifty-three years old. She has testified that: she believed that Wozniak knew that she was more than forty years old; and, Wozniak was aware that she had hearing loss and wore a hearing aid. On July 23, 2001, T.J. Maxx, through Wozniak, hired Petani to work as a merchandise lead in that store.
Petani states by affidavit that other T.J. Maxx employees, including the store manager, spoke to her in a sarcastic and hurtful manner regarding her age and hearing loss and, when she spoke with a member of management about the hurtful comments, she was directed to the store manager. Petani Aff. pars. 12 and 13 at 1.
Petani's ninety day review contained ratings of "clear development needs" and "meets expectations" for various prongs of performance; a rating of "exceeds expectations" for her ability to adapt to changes in work schedules, routines, and policies; and, an overall rating of "meets expectations." Ex. J(A). Wozniak states by affidavit that: as a result of Petani's performance difficulties, other employees had to perform her assigned tasks; efforts to coach and counsel Petani were unsuccessful; and, in February 2002, the managers of the Westborough store decided that Petani's good customer service skills made her better suited to work in the fitting room. Ex. J at 3.
Petani has stated by affidavit that T.J. Maxx demoted her to dressing room clerk and filled her former job with a man in his twenties. Petani Aff. pars. 10-11 at 1. Petani's annual evaluation, for the period July 30, 2001 to July 21, 2002, contained ratings of "clear development needs" and "meets expectations" for various prongs of performance, with an overall rating of "meets expectations." Ex. H (2).
Wozniak has testified at deposition that Petani's extraordinary number of returns of purchases concerned her. Ex. G at 59-60. Wozniak noticed that Petani frequently put items on layaway and failed to pay the balance on those items and failed to claim the items. Id. at 52, 54-55. Wozniak reported her concerns to a district loss prevention manager. Id. at 52-53. Petani testified at deposition that Wozniak told her that she was abusing the store's layaway system and, thus, burdening the store. Ex. A at 651-653.
David D'Amico (D'Amico) stated by affidavit that he was a loss prevention training supervisor for T.J. Maxx. Ex. I at 1. In February 2003, he received a report that an associate at the Westborough store had received a sufficient number of gift cards to trigger an alert in T.J. Maxx's loss prevention systems. Ex. I at 2. D'Amico testified at deposition that Petani had departed from typical T.J. Maxx employee purchasing patterns by making numerous layaways and canceling almost all of them. Ex. C. at 44-47.
The parties agree that, on March 20, 2003: D'Amico traveled to the Westborough store to interview Petani, Wozniak informed Petani that there were some people who wanted to speak with her, and, Wozniak accompanied Petani to the manager's office and left her there with D'Amico and Elizabeth Ocasio (Ocasio), a female loss prevention associate. Petani has testified at deposition that Ocasio sat in a corner of the room, D'Amico sat with his back to the rear wall of the office, and Petani sat facing D'Amico, with her back to the door. Ex. A at 537. Petani has also testified at deposition that, while in the office: she experienced pain in her arm; "she wasn't going to have a heart attack because of him [D'Amico] in that store"; and, fear of termination was the only reason she remained in the office. Ex. A at 552-554.
The parties agree on the following key evidence, Petani admitted that she caused losses to T.J. Maxx twelve times. Petani signed a statement providing that she had engaged in dishonest conduct causing a loss to T.J. Maxx when she: put items on layaway at full price; cancelled the layaway and purchased the item at a clearance price; and, then returned the item, using the cancelled layaway slip to obtain a full price refund. Ex. A(22). Petani has testified that: in response to her requests to go home, D'Amico said that she had to answer more questions, and that, before going home, she had to sign a statement that she owed T.J. Maxx two hundred dollars; she was told that if she did not stay in the room and participate in the investigation, then she would be subject to termination; she never attempted to leave; and, D'Amico never touched her. Ex. A at 552-555.
Wozniak told Petani that her employment was terminated because she engaged in dishonest conduct. Wozniak stated by affidavit that after terminating Petani's employment, she assigned Barbara Redding, who was 57 years old, to Petani's position in the fitting room. Ex. J at 6.
The parties agree that Petani does not claim that either Wozniak or D'Amico had any history of employment-related discipline. Petani has testified at deposition that she is not aware of any harmful actions by Wozniak or D'Amico outside of Petani's employment with T.J. Maxx. Ex. A at 772-774.
DISCUSSION
Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Mass. R. Civ. P. 56(c)); Cassesso v. Comm'r of Corr., 390 Mass. 419, 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party must affirmatively demonstrate that there is no genuine issue of material fact on each relevant issue. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). A "material" fact is one that might affect the outcome of the suit under the applicable law. Mulvihill v. The Top-Flight Golf Co., 335 F.3d 15, 19 (1st Cir. 2003). "Genuine" means that the evidence would permit a reasonable fact finder to resolve the point in favor of the nonmovant. Id.
If the moving party does not bear the burden of proof at trial, it must either: 1) submit affirmative evidence negating an essential element of the nonmoving party's claim; or 2) demonstrate that the nonmoving party's evidence is insufficient to establish its claim. Kourovacilis v. General Motors Corp., 410 Mass. 706, 711 (1991). The nonmoving party may not defeat the motion for summary judgment by resting merely on the allegations and denials in its pleadings, but must set forth specific facts with affidavits, deposition testimony, answers to interrogatories, or admissions showing that there is a genuine issue for trial. Mass. R. Civ. P. 56(e). The court will interpret all inferences in the light most favorable to the nonmoving party. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 438 (1995).
I. HANDICAP DISCRIMINATION
A. PRIMA FACIE CASE
Wozniak was aware of Petani's hearing loss when Wozniak hired her. Petani has failed to set forth facts showing a genuine issue for trial as to the existence of discriminatory animus. Without citation to the record, Petani asserts that Wozniak was losing patience with Petani's hearing loss. Even if the summary judgment record included such evidence, it would not permit a reasonable fact finder to find discriminatory animus. See Kuczun v. McCue Corp., Civil Action No. ESCV2002-00127, 2003 WL 21888927, *3-4 (Mass.Super.Ct. August 4, 2003) (Agnes, J.) (summary judgment where plaintiff had no reasonable expectation of proving that her injury had any bearing upon defendant's decision to terminate her employment). T.J. Maxx has demonstrated that Petani's evidence is insufficient to establish her claim that T.J. Maxx terminated her employment because of her hearing loss.
B. PRETEXT
Petani argues that flaws in the investigation, verbal mistreatment, and management's failure to resolve Wozniak's mistreatment of Petani establish that T.J. Maxx's articulated reason for termination is a pretext. Such facts would not permit a reasonable fact finder to find that T.J. Maxx's articulated reason is a pretext. See Tate v. Dep't of Mental Health, 419 Mass. 356, 363 (1995) ("The employer's reasons for its decision to terminate may be unsound or even absurd, but if they are not discriminatory and if the plaintiff does not prove they are pretexts, the plaintiff cannot prevail."); Tuttle v. Brandeis Univ., Civil Action No. 98-4557-F, 2002 WL 202470, *8 (Mass.Super.Ct. Feb. 4, 2002) (Gants, J.), aff'd as amended by 60 Mass. App. Ct. 1119, rev. denied 441 Mass. 1106 (March 31, 2004) ("Stray remarks in the workplace, statements by people without the power to make employment decisions, and statements made by decision makers unrelated to the decisional process itself do not suffice to satisfy the plaintiff's threshold burden in these cases."), quoting Wynn Wynn, P.C. v. Massachusetts Commission Against Discrimination, 431 Mass. 655, 667 (2000).
T.J. Maxx has demonstrated that Petani's evidence is insufficient to establish that T.J. Maxx's articulated reason for termination, theft, is a pretext. Petani has failed to set forth facts showing that there is a genuine issue for trial as to pretext. Petani admitted to stealing the difference between the clearance purchase price and the full price refund. The evidence in the summary judgment record does not overcome this sound basis for termination.
II. AGE DISCRIMINATION
A. TERMINATION
Wozniak has testified that she replaced Petani, in the fitting room, with a fifty-seven-year-old person. Petani has failed to set forth any facts showing a genuine issue for trial. See Knight v. Avon Products, Inc., 438 Mass 413, 426-427 (2003) (summary judgment where replacement was more than forty years old and there was only a twenty-eight-month age difference, and no evidence of discriminatory animus as to age). T.J. Maxx has submitted affirmative evidence negating Petani's claim that T.J. Maxx replaced her with a person who was at least five years younger:
B. ASSIGNMENT TO FITTING ROOM
1) LIMITATIONS PERIOD
Section 5 of chapter 151B of the General Laws provides that a complainant must file a claim of a violation of G.L. c.151B within three hundred days after the alleged act of discrimination. T.J. Maxx reassigned Petani in February 2002, and Petani did not file the claim related to the reassignment until June 23, 2003. She argues that the limitations period should not begin until T.J. Maxx replaced her, as a merchandise lead, with a person at least five years younger. She has not submitted any evidence, though, that would permit a reasonable fact finder to find that T.J. Maxx replaced her less than three hundred days before June 23, 2003. T.J. Maxx has submitted evidence negating Petani's claim that she timely filed her claim that her assignment to the fitting room was unlawfully discriminatory. See Adamczyk v. Augat, Inc., 52 Mass. App. Ct. 717, 724 (2001) (summary judgment where plaintiff failed to establish genuine issue of fact as to whether he filed his claim within the limitations period). Petani fails to set forth facts showing a genuine issue for trial.
2) UNACCEPTABLE PERFORMANCE
To show that the stated reason for assignment, unacceptable performance, was a pretext, Petani relies on her overall rating of "meets expectations." That alone would not permit a reasonable fact finder to find that Petani's level of performance was a pretext. T.J. Maxx has demonstrated that Petani's evidence is insufficient to establish that T.J. Maxx's articulated reason for the reassignment, unacceptable performance, is a pretext. Petani has failed to set forth facts showing a genuine issue for trial. See Tate, 419 Mass. at 363 ("The employer's reasons for its decision to terminate may be unsound or even absurd, but if they are not discriminatory and if the plaintiff does not prove they are pretexts, the plaintiff cannot prevail.").
III. FALSE IMPRISONMENT
A. CONFINEMENT
In Foley v. Polaroid Corp., 400 Mass. 82 (1987), the Supreme Judicial Court held that an at-will employee who relinquishes her right to movement in exchange for continued employment is not imprisoned. Foley, 400 Mass. at 91. Petani has failed to set forth facts showing a genuine issue for trial as to whether T.J. Maxx confined her. She directs the court to evidence that while in the office she feared for her physical health. That evidence alone would not permit a reasonable fact finder to find that T.J. Maxx confined Petani. T.J. Maxx has submitted evidence negating Petani's claim that T.J. Maxx confined her. Vaughn v. XRE/ADC Corp., Civil Action No. CA 956187E, 1996 WL 118094, *3 (Mass.Super.Ct. June 5, 1996) (Graham, J.) (summary judgment where plaintiff contended that defendant confined him by threat of discharge). B. PRIVILEGED CONFINEMENT
In Proulx v. Pinkerton's Nat'l Detective Agency, Inc., 343 Mass. 390 (1961), the Supreme Judicial Court held that if investigation is warranted, a person may be detained for a reasonable time and in a reasonable way. Proulx, 343 Mass. at 392. There, the Supreme Judicial Court concluded that investigation was warranted where the defendant, an agent of the plaintiff's employer, had reason to suspect that another employee was stealing from the employer. Id. at 393. T.J. Maxx has submitted affirmative evidence negating Petani's claim that T.J. Maxx unlawfully confined her: evidence that D'Amico suspected that Petani was stealing from T.J. Maxx. Petani has failed to set forth facts showing a genuine issue for trial.
IV. NEGLIGENT SUPERVISION AND RETENTION
Petani does not claim that either Wozniak or D'Amico had any history of employment-related discipline. T.J. Maxx has demonstrated that Petani's evidence is insufficient to establish her claim that T.J. Maxx knew, or should have known, that Wozniak or D'Amico, or any T.J. Maxx employee, had a proclivity to commit misconduct. Petani has failed to set forth facts showing a genuine issue for trial. See Copithorne v. Framingham Union Hospital, 401 Mass. 860, 865 (1988) (no summary judgment where defendant had received actual notice of alleged wrongdoer's proclivity to commit misconduct).
ORDER
Defendant TJX Companies, Inc.'s motion for summary judgment as to Counts One, Two, Five, and Six of the amended complaint is ALLOWED .