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Gilmore v. Macy's Retail Holdings

January 20, 2009

JANICE GILMORE, PLAINTIFF,
v.
MACY'S RETAIL HOLDINGS, DEFENDANT.



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

OPINION

I. INTRODUCTION

This matter is before the Court upon the parties' in limine motions [Docket Items 73 and 83] in this case of alleged employment discrimination, for which the trial on the merits was scheduled to commence on January 21, 2009. In her motion, Plaintiff seeks to amend the Joint Final Pretrial Order to assert claims that were not included in her Complaint and which were not addressed during the parties' summary judgment motion practice. In its motions, Defendant seeks to preclude Plaintiff from introducing various categories of evidence, which it argues are irrelevant, prejudicial, and inadmissible. For the reasons explained below, the Court will deny Plaintiff's motion and grant in part and deny in part Defendant's motions.

II. BACKGROUND

A. Facts

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. at 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. at 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. at 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.*fn1 (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. at 17.)

Plaintiff was transferred from the Shoe Department to the Jewelry Department in 2001, where she worked as an associate in the Gold Bay. (Gilmore Dep. at 89.) Plaintiff repeatedly expressed to her supervisors her interest in being promoted to the Diamond Bay, but in August 2004, when an elderly associate in the Diamond Bay passed away, Macy's gave the position to Jeanette Rutter, Plaintiff's white colleague, rather than Plaintiff. (Id. at 16, 37, 45.) As the Court made clear in its March 11, 2008 Opinion, the evidence in this matter showed unmistakably that Mr. Rutter was better qualified for the Diamond Bay position than Plaintiff was at the time of the promotion:

While Plaintiff had been selling jewelry for less than four years when the Diamond Bay position became available, (Gilmore Dep. at 16), Ms. Rutter had worked at Zales for at least two years, in the Diamond Bay at Macy's for thirteen years (1987 to 2000), and in the Jewelry Department for one or two years (2002 or 2003 to 2004) before being transferred back to the Diamond Bay. (Rutter Dep. at 9-10; McCord Aff. ¶ 10.) Ms. Rutter also had completed a two-year training curriculum on diamonds when she worked at Zales. (Rutter Dep. at 9.) Indeed, Plaintiff concedes that Ms. Rutter had "significantly more experience for the position" than Plaintiff did. (Pl.'s Statement of Undisputed Material Facts ("SUMF") ¶ 29.) . . . .

In her final effort to establish that she was [better] qualified for the Diamond Bay position than Ms. Rutter, Plaintiff refers repeatedly to the fact that Ms. Rutter was working in the Diamond Bay on October 21, 2000, when eleven rings were stolen. Although Ms. Rutter was found not to be at fault for the stolen inventory, (Rutter Dep. at 11; McCord Aff. ¶ 9), Plaintiff argues that Defendant should have taken the stolen rings into account when weighing the two women's qualifications in 2004. Plaintiff proffers no evidence that Ms. Rutter was at fault for the crime of the four perpetrators.

Gilmore v. Federated Dept. Stores, Inc., No. 06-3020, 2008 WL 687260, at *5, *7 (D.N.J. Mar. 11, 2008) (footnote omitted).

In her Complaint, Plaintiff alleged that she and her African American colleagues in the Jewelry Department were treated differently from their white counterparts. Specifically, Plaintiff alleged (1) 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, (Gilmore Dep. at 69); (2) that black associates were called upon to perform maintenance tasks, such as repairing watches, more frequently than white associates, (id. at 89); (3) that black associates were not given the combination to the alarm and vault, (id. at 90); (4) that Plaintiff was not able to become a "counter specialist" because she was black, (id. at 107); (5) that white associates were given preferential treatment with regard to scheduling, (id. at 112-13); and (6) that Macy's processed black associates' sales and returns differently from those of white associates.*fn2 (Id. at 95-102.)

B. Procedural History

Plaintiff filed a complaint with the United States Equal Employment Opportunities Commission ("EEOC") on July 7, 2005. (Gilmore Dep. at 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 Court [Docket Item 1]. In her Complaint, Plaintiff alleged that Defendant failed to promote her on account of her race in violation of the New Jersey Law Against Discrimination ("NJLAD") (Count I) and Title VII (Count II); that Defendant treated Plaintiff differently on account of her race in violation of the NJLAD and Title VII (Counts III and V); and that Defendant should be liable for punitive damages (Count IV).*fn3

After a period of discovery, Defendant filed a motion for summary judgment, which this Court addressed in its March 11, 2008 Opinion and Order.*fn4 As to Plaintiff's failure to promote claims, the Court found that Plaintiff could not establish a prima facie case of racial discrimination "on account of the simple fact that Ms. Rutter was not 'someone with equivalent or lesser qualifications' than Plaintiff, [Johnson v. Penske Truck Leasing Co., 949 F. Supp. 1153, 1170 (D.N.J. 1996)], but was, rather, significantly more qualified for the position in the Diamond Bay." Gilmore, 2008 WL 687260, at *5.*fn5

As to Plaintiff's disparate treatment claims, the Court found that Plaintiff's own evidence failed to support the vast majority of her allegations of disparate treatment. Id. at *8. Specifically, the Court determined that no reasonable jury could find from Plaintiff's evidence that she had been discriminated against as a result of maintenance task and counter specialist assignments, not being given the vault combination, employee scheduling, or the processing of sales and returns. Id. at *8-*9. As the Court explained, Plaintiff's own evidence on these matters demonstrated that she was treated no worse than her white colleagues. Id. However, with respect to a single aspect of Plaintiff's disparate treatment claim, the Court denied Defendant's motion for summary judgment:

[T]he Court finds that Defendant is not entitled to summary judgment on Plaintiff's claim that she was denied the opportunity to fill in for Diamond Bay associates on a discriminatory basis. At her deposition, Plaintiff testified 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. (Gilmore Dep. 69.) Plaintiff estimated that she had observed Diamond Bay associates calling upon white employees to fill in for them approximately three times as often as they called upon black employees like Plaintiff. (Id.) In light of the uncontradicted evidence that the most valuable merchandise in the Fine Jewelry Department was located in the Diamond Bay, (Def.'s SUMF ¶ 5), and the fact that associates in the Department received quarterly bonuses for achieving certain sales-per-hour rates, (id. ¶¶ 54-56), Plaintiff's testimony that she was restricted from selling the most expensive products in the Department on a discriminatory basis is sufficient to [permit this aspect of her disparate treatment claim to proceed to trial].

Id. at *10.

On June 5, 2008, Magistrate Judge Donio convened a Final Pretrial Conference [Docket Item 49], but, owing to Plaintiff's apparent failure to prepare for the Conference, (see Docket Item 55), Judge Donio adjourned the Conference until August 12, 2008. The Final Pretrial Order, signed by counsel for both parties and by Judge Donio, makes clear that Plaintiff's claim relating to the alleged failure of Defendant to schedule associates to fill in at the Diamond Wall on a race-neutral basis is "the only portion of the only remaining claim for trial." (Docket Item 60 at 3) (emphasis added). In an Order entered October 2, 2008 [Docket Item 63], the Court informed counsel that the jury trial on the merits of this aspect of Plaintiff's remaining claim would commence on January 20, 2009.*fn6

Defendant filed its in limine motions on December 22, 2008, and on December 29, 2008 -- more than four months after the entry of the Joint Final Pretrial Order and twenty-three days before the trial on the merits is scheduled to commence -- Plaintiff filed her motion to amend the Complaint.*fn7 The Court heard oral argument on ...


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