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Gilmore v. Federated Dep't Stores

March 11, 2008


The opinion of the court was delivered by: Simandle, District Judge


Plaintiff, a longtime employee of a Macy's department store operated by Defendant Federated Department Stores, Inc. ("Federated"), filed this action, alleging that she had been discriminated against by her employer on account of her race. Defendant*fn1 has moved for summary judgment [Docket Item 24]. For the reasons explained below, the Court will grant Defendant's motion for summary judgment as to Plaintiff's claims for failure to promote, grant in part and deny in part Defendant's motion as to Plaintiff's claims for disparate treatment, and grant Defendant's motion as to Plaintiff's claims for punitive damages.


A. Facts

1. Plaintiff's Employment in the Macy's Fine Jewelry Department

Plaintiff, an African American woman, was hired by the Macy's department store in Hamilton, New Jersey on November 6, 1989. (Compl. First Count ¶ 1; Gilmore Dep. 7-8.) Between 1989 and 2001, Plaintiff worked in multiple departments at Macy's, ranging from the Men's Basics Department to the Women's Shoes Department. (Gilmore Dep. 15-16.) Plaintiff was transferred to the Fine Jewelry Department in February 2001. (Id. at 16.)

The Fine Jewelry Department at Macy's is divided into three areas, or "bays," each of which contains a separate category of products: the Diamond Bay, the Gold Bay, and the Watch Bay. (Id.) Each associate in the Fine Jewelry Department is assigned to one of the three bays. (Van Aken Dep. 17.) Of the three bays, the Diamond Bay is considered to be the most desirable assignment by associates in the Fine Jewelry Department on account of the higher prices of the items sold in that bay.*fn2 (Compl. First Count ¶¶ 10-11.) While the employees in the Jewelry Department have some opportunities to sell items outside of the bays to which they are assigned -- such as when no personnel from a particular bay are available to assist a customer -- the associates' primary sales responsibilities are for the items in their respective assigned bays. (Van Aken Dep. 17.)

Since she was transferred to the Jewelry Department in 2001, Plaintiff has worked as an associate in the Gold Bay. (Gilmore Dep. 89.) Over the course of her employment, Plaintiff repeatedly expressed to Sherry McCord, the Sales Manager in the Fine Jewelry Department, that she was interested in being assigned to the Diamond Bay. (Id. at 16, 37.) In 2002, Plaintiff asked Ms. McCord what she needed to do in order to be able to be transferred to a position in the Diamond Bay, and Ms. McCord told Plaintiff to "show that [she] really wanted it" by attending to customers at the Diamond Bay whenever there were no Diamond Bay associates available. (Id. at 37.) When Plaintiff informed Ms. McCord that other associates in the Jewelry Department "automatically went to the Diamond Wall" when there were no Diamond Bay associates to assist customers, Ms. McCord effectively advised Plaintiff to demonstrate her interest in working at the Diamond Bay by asserting herself as the most determined salesperson; Plaintiff was told to "elbow [her] way" into the Diamond Bay. (Id. at 37-38.) In 2003, Plaintiff again informed Ms. McCord that she wanted to become a Diamond Bay associate and stated that Ms. McCord's recommendation of "elbow[ing her] way" into the position was not working. (Id. at 44.) Ms. McCord told Plaintiff that if Bonnie DeFrancesco, an elderly Diamond Bay associate, ever retired, Plaintiff would be able to work in the Diamond Bay. (Id.)

2. The October 2004 Transfer and Jeannette Rutter's Qualifications

In August 2004, Ms. DeFrancesco passed away. (McCord Aff. ¶ 12.) In October 2004, Ms. McCord and Jacquie Ashbook, the store manager, made the decision to transfer Jeanette Rutter, a Caucasian employee in the Jewelry Department, to the Diamond Bay to fill Ms. DeFrancesco's position. (Id. at ¶ 13; Gilmore Dep. 45.)

Macy's originally hired Ms. Rutter in 1987 to work in the Diamond Bay. (Rutter Dep. 9.) Prior to working at Macy's, Ms. Rutter worked at a jewelry store called Zales, where she took part in a "two-year training curriculum" in order to be certified to purchase and sell diamonds. (Id.) Ms. Rutter worked in the Diamond Bay at Macy's from the time she was hired until 2000. (Id. at 10.) On October 21, 2000, Ms. Rutter was working at the Diamond Bay when four men stole eleven rings from one of the jewelry cases. (Pl.'s Opp'n Br. Ex. F.) Ms. Rutter was found not to be at fault for the lost inventory, (Rutter Dep. 11; McCord Aff. ¶ 9), but as an "administrative move," she was transferred to the Women's Department for a two-year period. (Rutter Dep. 11.) In 2002 or 2003, Ms. Rutter was transferred back to the Jewelry Department, but because there were no positions at the Diamond Bay available, she was not assigned to the Diamond Bay. (McCord Aff. ¶ 10.)

Plaintiff concedes that Ms. Rutter's "evaluations were better than [Plaintiff's]," (Gilmore Dep. 48), and does not dispute Defendant's evidence indicating Ms. Rutter's superior work performance in the Jewelry Department in the year preceding the Diamond Bay transfer. Plaintiff's "review rating" in her 2004 Compensation Merit Detail Sheet was "ME" (or "meets expectations"), whereas Ms. Rutter's rating was "EE" (or "exceeds expectations"). (Van Aken Dec. Exs. 1-2.) In the first three quarters of 2004, Ms. Rutter's sales figures were substantially higher than Plaintiff's. (Van Aken Dec. Exs. 3-8.) In her deposition testimony, Plaintiff appears to attribute this disparity in sales figures to the fact that white employees like Ms. Rutter were called upon to fill in for absent Diamond Bay associates more frequently than were black employees, which inflated Ms. Rutter's sales due to the higher prices of the Diamond Bay merchandise. (Gilmore Dep. 69.)

3. Evidence of Alleged Differential Treatment

In addition to the evidence the parties submitted relating to the transfer of Ms. Rutter to the Diamond Bay position, Plaintiff testified during her deposition about additional examples of allegedly inequitable treatment she experienced during her employment in the Fine Jewelry Department.*fn3 One such instance of differential treatment, as the Court noted supra, is Plaintiff's testimony that her capacity to earn bonus pay was limited by the fact that "the Diamond associates [would] ask for the Caucasian associates that [were] not scheduled at the Diamond Wall to replace them in their absence," rather than calling upon replacement associates on a race-neutral basis. (Id.)

Plaintiff also testified that she was called upon to do "maintenance tasks," such as counting and sizing watches, with greater frequency than her white co-workers. (Id. at 89.) According to Plaintiff, performing such tasks reduced her sales performance because it took away from the time that she could have been selling jewelry to customers. (Id.) Of the Fine Jewelry Department associates, Plaintiff testified that she and Barbara Feldman "were probably equal" in their performance of maintenance tasks. (Id.) Ms. Feldman is white. (Id.)

At her deposition, Plaintiff stated that unlike white employees, black employees in the Fine Jewelry Department were not given the combination to the alarm and the vault in the Diamond Bay. (Id. at 90.) While Plaintiff testified that she knew the combination to the vault and alarm, she stated that she did not receive the combination from her manager, but instead had to ask a co-worker for the combination. (Id. at 91.) Plaintiff testified that she never asked her manager for the combination. (Id. at 93.) Plaintiff also testified that Leslie El, an African American associate in the Fine Jewelry Department, had the combination to the alarm and vault. (Id. at 94-95.)

Plaintiff also testified at her deposition that she was discriminated against because she was not able to become a Counter Specialist within the Fine Jewelry Department. (Id. at 107.) According to Elaine Van Aken, the Vice President of Human Resources at Macy's, a Counter Specialist is "a lead associate, someone who has good selling skills and . . . who can help create a team environment and . . . be a leader in the department." (Van Aken Dep. 26.) Plaintiff testified that there are two Counter Specialists in the Fine Jewelry Department -- Jana TinelBobb, who is white, and Leslie El, who is black. (Gilmore Dep. 95, 107.)

B. Procedural History

Plaintiff filed a complaint with the United States Equal Employment Opportunities Commission ("EEOC") on July 7, 2005. (Gilmore Dep. 174-75.) On February 23, 2006, the EEOC issued a Dismissal and Notice of Rights informing Plaintiff that the Commission was "unable to conclude" that Defendant had violated Title VII, and notifying her that she had a ninety-day period to file a lawsuit. (Def.'s Br. Ex. F.) On May 10, 2006, Plaintiff filed her Complaint in this action in New Jersey Superior Court, and Defendant removed the matter to this ...

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