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Michaels v. BJ's Wholesale Club, Inc.

United States District Court, D. New Jersey

June 19, 2014



KEVIN McNULTY, District Judge.

This matter comes before the Court upon the motion of the Defendant, BJ's Wholesale Club, Inc. ("BJ's"), for summary judgment. Docket No. 37. The Plaintiff, Christine A. Michaels, commenced this action on September 29, 2011. Docket No. 1 ("Compl"). Of the Complaint's seven original claims, there remain three: Retaliation in violation of the LAD (Count IV); Breach of contract (Count VI); and Breach of implied duty of good faith and fair dealing (Count VII). Comps. ¶¶ 224-260.[1] As to those three claims, I find that there is no genuine, material issue of fact for trial, and I award summary judgment in favor of the Defendant.


I consider the facts as stated in the Defendant's Statement of Undisputed Material Facts ("Def. SUMF") and Plaintiff's Responsive Statement of Material Facts ("Pl. RSMF") pursuant to L. Civ. R. 56.1. I consider as well the deposition transcripts and documentary exhibits submitted with the parties' summary judgment papers. Where the facts are not disputed, I assume them to be true; pertinent disputes are noted.

A. Plaintiff's Employment with BJ's

Michaels completed an application for employment with BJ's on July 23, 1991. Def. SUMF ¶ 1; Docket No. 37-4, Exhibit A ("Michaels Dep. Tr.") at 83. It included an "Applicant Statement, " which stated that "I understand that my employment is for no definite or fixed period of time and that neither hours of work, which may be assigned to me at any time, nor any other act or circumstances shall constitute a guaranty of employment or as to daily or weekly straight time or overtime working hours, if any." Def. SUMF ¶ 2; Michaels Dep. Tr. at 84. Michaels signed the application below this statement. Docket No. 37-4, Exhibit B ("Employment Application"). At her deposition Michaels testified that she did not recall signing any contract of employment with BJ's. Def. SUMF ¶ 3; Michaels Dep. Tr. at 85:19-21.

BJ's Wholesale Club hired Michaels as an Assistant Manager in August 1991. Def. SUMF ¶ 4; Michaels Dep. Tr. 83, 86-88. She received several promotions, including one to General Manager and then to Regional Manager. As Regional Manager she supervised the operations of several BJ's Clubs in north and central New Jersey. Def. SUMF ¶¶ 5-6; Michaels Dep. Tr. at 87-89.

As Regional Manager, Michaels directly reported to supervisor Frank Buonvicino. Def. SUMF ¶ 7. When Plaintiff first became Regional Manager, Thomas Gallagher was Buonvicino's supervisor; when Gallagher was later promoted, Cornel Catuna became Buonvicino's supervisor. Id. ¶¶ 8-9.

B. BJ's Member Guide

BJ's maintains an employee handbook, the Club Team Member Guide, which is distributed to new employees. Def. SUMF ¶ 1; Docket No. 37-4, Exhibit E ("Member Guide"). The parties dispute whether Plaintiff first saw a copy of the Member Guide in the 1990s, or "around 2000." see Def. SUMF ¶ 12; Pl. RSMF ¶ 12. It is undisputed, however, that as General and Regional Manager, Michaels was familiar with the Member Guide and was responsible for enforcing its policies and procedures. The Guide includes a disclaimer stating that it does not constitute an employment contract or otherwise modify the at-will nature of a Team Member's relationship with BJ's. Def. SUMF ¶ 14.

The Member Guide sets forth BJ's[2] "Progressive Disciplinary Policy, " which establishes three tiers of violations-Levels I, II, and III. Def. SUMF ¶¶ 18, 19; Member Guide at D-0878, D-0879, D-0881. Level III infractions may result in immediate termination for the first offense. One of the explicitly enumerated violations under Level III is "possession, distribution, use, or being under the influence of illegal drugs or alcohol... on Company property at any time." Member Guide at D-0881.

C. Michaels' Termination

On September 22, 2009, BJ's received an anonymous complaint to its ethics hotline that Michaels and other employees had consumed alcoholic beverages at BJ's East Rutherford, New Jersey club. That drinking incident allegedly occurred in the early morning hours of September 21, 2009, around the time of a merchandise inventory. Def. SUMF ¶ 29; Docket No 37-5, Exhibit H ("Ethics Hotline Complaint").

In accordance with standard procedure upon receiving an ethics hotline complaint, BJ's commenced an investigation. The investigation was conducted by Robin Bombardier and Robert Kirby. Def. SUMF ¶ 30-32. Michaels was interviewed and she admitted, orally and in writing, that she had consumed alcohol in the parking lot of the East Rutherford club. Id. ¶ 35. After completing their investigation, Bombardier and Kirby presented their findings to Gallagher, Catuna, and Susan Hoffman, BJ's Senior Vice President of Human Resources. Id. ¶¶ 38, 39. Those three decided to terminate Michaels' employment. Id. ¶ 40.

On September 30, 2009, Buonvicino and Bombardier met with Michaels to notify her that her employment with BJ's was terminated, based on the alcohol incident. Def. SUMF ¶ 49.

Another participant in the drinking incident, Charmine Sealey, was also fired. Michaels, a Regional Manager, and Sealey, the only member of the Asset Protection team present, were supervisory personnel responsible for enforcing company policies. Def. SUMF ¶¶ 47, 48; Docket No. 37-3, Exhibit F ("Hoffman Dep. Tr.") at 63-64. Other, lower-ranking personnel were punished, but less severely.[3]

Michaels maintains that her dismissal was pretextual. She says that the "inventory toast"- drinking on premises to celebrate the completion of a store's inventory-was a common practice. She claims that she was not the only person to be involved in such conduct and did not think it was inappropriate.[4]

It is undisputed that in August 2008, BJ's received a complaint that beer had been consumed at a company barbecue in the parking lot of a BJ's club in Paramus, New Jersey. Def. SUMF ¶ 24. (Unlike the inventory toast, this apparently occurred during regular hours.) That complaint was investigated by Hicks and Mauro Amato, the Regional Manager for the Paramus club. Id. ¶ 25. Their investigation confirmed that two supervisory employees had purchased and supplied the beer, and that on-premises drinking by employees had occurred. Id. ¶ 26. Pursuant to BJ's Team Member Guide, both supervisors were immediately discharged at the conclusion of the investigation. Id. ¶ 27. (The discipline, if any, applied to lower ranking employees does not appear in the record.) Michaels does not dispute that she learned of this incident around the time it occurred, Pl. RSMF ¶¶ 24-28, and therefore knew about it when she participated in the "inventory toast."

D. Allegations of Discriminatory Conduct/Protected Activity

Michaels alleges that her supervisor, Cornel Catuna, discriminated against her. Her allegations center around a conference call in 2008 regarding the transfer of a BJ's General Manager, Debbie Vito; certain corporate meetings at which Catuna was present; and store visits Catuna made to Michaels' region. At all relevant times, Catuna was based at BJ's corporate headquarters in Natick, Massachusetts. Def. SUMF ¶ 10; Michaels Dep. Tr. at 129:12.

Michaels saw Catuna at two of the four visits he made to New Jersey stores in her region. Michaels Dep. Tr. at 131:18-20. She testified that, during a November 2007 visit, [5] Catuna addressed her in a demeaning manner as if he were "schooling" her. Catuna also allegedly asked a female produce specialist questions that Michaels regarded as inappropriate because they were impossible for the produce specialist to answer. Id. at 159-61.

As Regional Manager, Michaels attended both annual and quarterly meetings. At the annual meetings, Michaels' interactions with Catuna were uneventful. Def. SUMF ¶ 57; Michaels Dep. Tr. at 131:21-132:25. As for quarterly meetings, Michaels recalled that Catuna attended seven or eight, but she remembered nothing of her interactions with him at the first four. Michaels Dep. Tr. at 130:19-22, 134-35. At a September 2008 quarterly meeting, Catuna "seemed very distant." Michaels noticed that he was "very formal" with her, but friendlier towards the "male regionals." Id. at 135. Catuna addressed male Regional Managers as "Mr., " while referring to female Regional Managers by their first names. Id. at 135-36. Michaels states that Catuna was dismissive towards her on various occasions. He did not commend her on the performance of the stores in her region, but did commend another Regional Manager. Id. at 142-43, 151-53, 155-56.

Michaels asserts that she also complained about Catuna's behavior toward a female general manager, Beverly Bongiorno. For instance, in September 2008, after Catuna visited several stores, including the store managed by Bongiorno, Catuna allegedly told Buonvicino that Bongiorno was "not too bright." Michaels Cert. ¶ 25. Buonvicino allegedly relayed this information to Michaels, who took offense. Id. ¶ 26. Following an August 2009 store visit, Bongiorno allegedly called Michaels and stated: "what it is about this guy [Catuna], does he just hate women?" Id. ¶¶ 31, 32. Michaels asserts that she complained about Catuna's conduct to both Buonvicino and Hicks. See Michaels Cert. ¶¶ 19, 21, 23, 26, 27, 33. Defendants deny that Michaels made any such complaint. Michaels acknowledges that she never complained about Catuna directly to any of the decision-makers, Hoffman, Gallagher or Catuna, and that she was never present when anyone else did so. Pl. Br. at 7.


BJ's moves for summary judgment on the three un-dismissed counts of the Complaint: retaliation (Count IV), breach of contract (Count VI), and breach of implied duty of good faith and fair dealing (Count VII). Docket No. 37 ("Def. Br."). Michaels responds that she was terminated in retaliation for her complaints of discrimination against BJ's Senior Vice President Cornel Catuna. Michaels further contends that her termination for drinking alcohol on company premises was a pretext and a breach of BJ's contractual obligations to its employees.

For the reasons stated below, the motion for summary judgment will be granted.

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "if the movant shows 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248; Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment, a court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing Peters v. Delaware River Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir. 1994)). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof... the burden on the moving party may be discharged by showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.

Once the moving party has met that threshold burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see also Fed.R.Civ.P. 56(c) (setting forth types of evidence on which nonmoving party must rely to support its assertion that genuine issues of material fact exist). "[U]nsupported allegations... and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001) ("A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial."). If the nonmoving party has failed "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.... there can be no genuine issue of material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Katz v. Aetna Gas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23).

B. LAD Retaliation Claim (Count IV)

Count IV of the Complaint alleges that the Defendants retaliated against Michaels for lodging complaints about Catuna's allegedly discriminatory conduct. Pursuant to N.J.S.A. 10:5-12d, it is unlawful to "take reprisals against any person because that person has opposed any practices or acts forbidden under" the New Jersey LAD.

Such an unlawful retaliation claim is properly analyzed under the burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp v. Green, 441 U.S. 792. See Mancuso v. City of Att. City, 193 F.Supp.2d 789, 811 (D.N.J. 2002) ("Analysis of LAD retaliation claims follows the now-familiar burden-shifting framework established for disparate treatment claims under Title VII and the LAD."). Under the McDonnell Douglas framework, the Plaintiff has the initial burden of establishing a prima facie case. Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012). To state a prima facie case of retaliation under the LAD, plaintiffs must prove that: "(1) they engaged in a protected activity known by the employer; (2) thereafter their employer unlawfully retaliated against them; and (3) their participation in the protected activity caused the retaliation." Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629-30, 660 A.2d 505, 508 (1995) (citing Jamison v. Rockaway Township Bd. of Educ., 242 N.J.Super. 436, 445, 577 A.2d 177 (Sup.Ct. A.D. 1990); Wrighten v. Metropolitan Hasps., Inc., 726 F.2d 1346, 1354 (9th Cir. 1984)).[6] At the summary judgment stage, the plaintiff must point to evidence in the record sufficient to create a genuine factual dispute as to each of those three elements. Lichtenstein, 691 F.3d at 302 (citing Erdman v. Nationwide Ins. Co., 582 F.3d 500, 508-09 (3d Cir. 2009); Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004)). If she is able to make this showing, the burden of production shifts to the employer to "articulate some legitimate, non-discriminatory reason" for its decision. Id. (quoting McDonnell Douglas, 411 U.S. at 802). Once the employer meets that fairly minimal burden, the plaintiff must point to some direct or circumstantial evidence from which a factfinder could "reasonably... disbelieve [the employer's] articulated legitimate reasons." Id. (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994)).

Michaels claims that BJ's stated reason for her terminating her-that she violated company policy by drinking on company property-was a pretext. She contends that the "inventory toast, " drinking on company property after the completion of inventories, is a long-standing practice known and condoned by managers, including her direct supervisor, Frank Buonvicino. She submits that she was actually terminated in retaliation for complaints she made about Catuna's conduct toward her and other female employees.

1. Prima facie case of retaliation.[7]

Defendant BJ's argues, inter alia, that Michaels has failed to meet her prima facie burden because she (a) failed to establish that she engaged in protected activity; (b) failed to establish that the protected activity was known to the decision makers who fired her; and (c) failed to establish a causal link between the alleged protected activity and her termination. As to (b) and (c), I ...

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