Drumm v. CVS Pharmacy, Inc., No. 1:2008cv00232 - Document 37 (D.R.I. 2010)
Court Description: OPINION AND ORDER granting in part and denying in part CVS Pharmacy, Inc.'s 21 Motion for Summary Judgment. So Ordered by Judge William E. Smith on 4/2/10. (Jackson, Ryan)
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UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND ___________________________________ ) ) ) Plaintiff, ) ) v. ) ) CVS PHARMACY, INC., ) ) Defendant. ) ___________________________________) WENDY DRUMM, CA. No. 08-232 S OPINION AND ORDER WILLIAM E. SMITH, United States District Judge. Plaintiff Wendy Drumm ( Drumm ) worked as a creative director for Defendant CVS Pharmacy, Inc. ( CVS ) between 2003 and 2007, when her employment was terminated. In this action, she accuses Defendant of discriminating against her because of her age, failing to pay severance causing her emotional distress. benefits, and tortiously Presently before the Court is Defendant s Motion for Summary Judgment seeking dismissal of all claims. On the central claim of age discrimination, the only evidence of age-based bias is a single comment from Plaintiff s supervisor. potentially narrowly claims, While not overwhelming sufficiently prevent however, summary do not evidence, suggestive of judgment. fare as the discrimination Plaintiff s well remark and cannot is to remaining survive. Accordingly, for the reasons fully explained below, Defendant s Motion is granted in part and denied in part. I. Background Unless otherwise noted with respect to several critical factual disputes, the following facts are undisputed. A. Severance Negotiations Plaintiff began Defendant in 2003. exploring employment responded by with In the course of her discussions with CVS, she asked about severance benefits. Sheil opportunities leaving the A recruiter named Ellen following message on Drumm s voice mail: Without sounding like we re not flexible, we would never put anything having to do with severance in an offer letter. We never have that I m aware of, and what we do have, though, in case it s needed, in the event that someone were to be let go, typically at CVS without cause or even with cause because we re too nice to let them just fade away we would give them severance based on a program that we would typically role out. And in the case of someone at your level, we would try to make it based on the amount of time we thought it would take the person to get re-employed. But there wouldn t be any way that we would be able to extend or write into an offer letter that you would be eligible for a certain amount of severance. What you need to be comforted by I think is that CVS is an honorable company that tries to do the right thing, and that s how we would handle that. (Pl. s Statement Facts ) ¶ 9.) of Undisputed Facts, Nov. 20, 2009 ( Pl. s Plaintiff claims she later telephoned Sheil, who confirmed orally what Drumm understood to be the promise stated in the recorded message: if Defendant ever terminated 2 Drumm, she would receive severance payments until she found new employment. (See Affidavit ( Drumm Aff. ) ¶ 8.) such representation. of Wendy Drumm, Nov. 19, 2009 Defendant disputes that Sheil made any (See Def. s Mem. Supp. Summ. J., Sept. 25, 2009 ( Def. s Mem. ) Ex. B 63:1-10.) Neither the written employment offer Defendant subsequently extended to Drumm, nor Defendant s employee handbook, guarantees severance benefits. Both the offer and the handbook state that Drumm s employment was at-will. (Def. s Statement of Undisputed Facts, Sept. 25, 2009 ( Def. s Facts ) ¶ 3.) B. Plaintiff s Job Performance Drumm began working for CVS as Chief Creative Director in September 2003. She was fifty-two years old at the time. When she started, her immediate supervisor was Helena Foulkes, Senior Vice President of Marketing. Foulkes performance asserts received claims from that, there 2003 between complaints (See id. ¶¶ 1, 2.) were through problems 2006. September from CVS with Drumm s Specifically, 2003 and March employees and business job Foulkes 2004, she partners about Drumm s professionalism and demeanor. (See id. ¶¶ 7-10.)1 1 Plaintiff disputes the characterization of her work in all the alleged complaints listed in Defendant s statement of facts, and attacks them as hearsay. The Court recognizes them as relevant to Defendant s motivation in firing her. See Kelley v. Airborne Freight Corp., 140 F.3d 335, 346 (1st Cir. 1998) (accepting evidence of complaints by absent declarants to show 3 In March 2004, Foulkes presented Drumm with an Individual Development Plan, and counseled her to improve her listening, conflict resolution, and interpersonal skills. Ex. B, Ex. 14 thereto.) (See Def. s Mem. In October 2004, Foulkes issued a Coaching and Counseling Form to Drumm that raised concerns about her professionalism in interacting with a member of the human resources staff. In the spring (See Def. s Mem. Ex. C, Ex. 15 thereto.) of 2005, Foulkes allegedly received new complaints about Drumm from members of the Creative Department at CVS. (See Def. s Facts ¶¶ 17-18.) received another alleged complaint Later that year, Foulkes about Drumm from one of Defendant s business partners. (See id. ¶ 19-20.) In early 2006, Foulkes and Drumm exchanged emails about a meeting at which they had discussed Drumm s performance. Drumm identified two of the topics they had addressed as the need to foster[] a good working relationship with a member of the Human Resources department, and Judgment. Ex. 28 thereto.) need to Foulkes really replied (Def. s Mem. Ex. B, In connection with the latter, Drumm wrote, I think by things thanking through Drumm before for her I act. openness, (Id.) and writing that she needed Drumm to make significant improvement on these issues. (Id.) . . . that a decisionmaker had notice of the complaint, rather than to prove the specific misconduct alleged in the complaint ). 4 For Drumm s 2005 needs improvement. listed team year-end Foulkes rated (Id. Ex. B, Ex. 31 thereto.) management improvement. review, and communication as her as The review areas for On the form, Foulkes wrote that she was (Id.) very concerned about [Drumm] s ability to lead a team at CVS. (Id.) Foulkes thereafter created a 60 Day Plan for Drumm that outlined performance goals. (Id. Ex. B, Ex. 32 thereto.) However, Drumm also received positive feedback between 2003 and 2006. For her first performance review in April, 2004, Foulkes gave her a rating of Meets Expectations. Facts ¶ 13.) (See Pl. s Drumm received a salary increase, a bonus, and some stock options in the company. (See id.) Similarly, for Drumm s year-end 2004 review, Foulkes judged Drumm to Meet[] Expectations, and Drumm received another salary second bonus, and additional stock options. increase, a (See id. ¶ 14.) Then, even while designating Drumm as Need[ing] Improvement on her 2005 review, Foulkes praised Drumm s impressive creative skills. (Def. s Mem. Ex. B, Ex. 31 thereto.) As with Drumm s prior two reviews, Defendant once more granted Drumm a salary increase, bonus, and stock options. (See Pl. s Facts ¶ 15.) Finally, for Drumm s year-end review for 2006, Foulkes raised her evaluation Expectations. of Drumm s performance (See Def. s Facts ¶ 30.) 5 back to Meets And yet again, Drumm received an increase in salary, a bonus, and stock options.2 (See Pl. s Facts ¶ 18.) At the end of 2006, CVS hired Robert Price as a new Vice President of Retail Marketing. Drumm s direct supervisor. discussed Drumm s Defendant s past Director In this role, he took over as (See Def. s Facts ¶ 26.) performance of Human issues Resources, with Foulkes Price Kathy-Jo and Payette. Foulkes states that she raised the possibility that it might be time for Drumm to move on. (Def. s Mem. Ex. C at 104:1-11.) Price claims that he asked Foulkes not to dismiss Drumm yet. states that he requested the opportunity to help He manag[e Drumm s] development and help her become a success in her role. (Def. s however, Mem. disputes contradicted by Ex. this the I. at 26:2-15, testimony documentary 27:10-20.) as Drumm, self-serving record, including and her performance evaluations. Price alleges that he received several performance-related complaints about Drumm from her colleagues in early 2007. Def. s Facts ¶¶ 33, 35, 38-39.) The complaints (See allegedly related to improper business travel, an attempt to recruit a member of another department to 2 work on Drumm s team, and Defendant points to substantive feedback contained in the 2006 review as an indication that Foulkes still believed Plaintiff had performance problems. (See Def. s Facts ¶31.) Defendant also asserts that Plaintiff received a bonus that was lower than the targeted amount. (Id.) 6 communication and leadership deficiencies. (See id. ¶¶ 33, 35, 38-40.) C. The March 2007 Comment by Price The key evidence in this dispute is a comment allegedly made by Price supervisor. to Drumm several months after he became her To place the remark in context, it is necessary to understand some of Defendant s marketing terminology. CVS uses a shorthand system of three names corresponding to the letters C, V, and S to describe its targeted customer base. The name Sophie refers to a customer paradigm of a woman over the age of 65. (Id. ¶ 45.) According to Price, Sophie is the heart and so[ul] of our marketing focus. 18.) (Def. s Mem. Ex. I 11:13- The other two names are Caroline, who represents the youngest segment, and Vanessa, who represents met with the middle. to discuss (Id.) In late marketing March, 2007, strategy. She Price alleges Price Drumm made the following comment: Wendy, we know all about your Sophie contemporaries. There is no need to contemplate your paradigm. There is no empirical mystery here. We need a younger, fresher missionary for Creative. And Wendy, let s face it, that is not within your scope, and that is a problem for you. (Pl. s Facts ¶ 20.) is not in dispute. In substance, the majority of this comment The major exception is that Defendant denies 7 that Price uttered the term Creative. Drumm s notes, taken immediately after the meeting, do not spell out the full word, but just write C. (See Def. s Facts ¶ 46.) Defendant also argues grammatical of that Drumm s reconstruction the spoken statement is not entirely faithful to her notes, which render the comment as follows: We know everything your Sop contemporaries[,] don t need to contemplate your paradigm[.] No empirical mystery[.] We need a fresher younger missionary C[.] . . . [L]et s face it not within my scope is a problem for me (you). (Def. s Mem. Ex. B, Ex. 39 thereto.) Some time between the end of April and the beginning of May, Price resolved to fire Drumm. 7:18-24.) (Def. s Mem. Ex. I 6:4, Price finalized [the] decision in May. (Id. 7:24.) Defendant officially terminated Drumm s employment in July 2007, and granted her thirteen weeks of severance pay. fifty-six years old. She was then To replace Drumm, Defendant appointed a woman who was thirty-seven years old to the position of Chief Creative Director. D. (See Pl. s Facts ¶ 24.) Procedural History Plaintiff commenced this action in Providence Superior Court in June 2008, and Defendant removed it to this Court. Plaintiff seeks damages against Defendant on the following grounds: (i) Defendant terminated her employment because of her age, in violation of the Age Discrimination in Employment Act 8 ( ADEA ), 29 U.S.C. § 621 et seq., the Rhode Island Fair Employment Practices Act ( FEPA ), R.I. Gen. Laws § 5-28-1 et seq., and the Rhode Island Civil Rights Act ( RICRA ), R.I. Gen. Laws § 42-112-1 et seq.; (ii) Defendant allowed age to be a motivating factor in terminating Drumm s employment, in violation of FEPA and RICRA; (iii) Defendant breached a contract with Drumm to provide severance pay; (iv) Defendant is liable to Drumm for severance pay under a theory of promissory estoppel; and (v) Defendant intentionally and negligently inflicted emotional distress on Drumm. Defendant now moves for summary judgment and asks that each of Plaintiff s claims be dismissed. II. Standard of Review Summary judgment is appropriate where there is no genuine issue of material fact and judgment as a matter of law. the moving party is entitled See Fed. R. Civ. P. 56(c). to A genuine issue of fact exists where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Taylor v. Am. Chemistry Council, 576 F.3d 16, 24 (1st Cir. 2009) (internal quotations and citation omitted). The Court must view the facts in the light most flattering to Plaintiff, and draw all reasonable inferences in her favor. See Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006); Dávila v. Corporación de Puerto Rico Para La Difusión Pública, 498 F.3d 9, 12 (1st 9 Cir. 2007). Once the moving party avers the absence of genuine issues of material fact, the nonmovant must show that a factual dispute does exist. Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 10 (1st Cir. 2007) (internal quotation marks and citation omitted). however, by Summary relying on judgment improbable allegations or rank speculation. cannot be inferences, defeated, conclusory Id. III. Analysis A. Age Discrimination Claims To prevail on an ADEA claim, the plaintiff must prove that age was the but-for cause of the employer's adverse action. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009). After Gross, ADEA plaintiffs can no longer rely on the mixed motive theory of discrimination set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). under a pretext theory using Rather, they must proceed the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To survive summary judgment under the McDonnell-Douglas standard, a plaintiff must first establish a prima facie case by adducing facts showing each of the following: (i) that he was at least forty years old at the time of the adverse employment action complained of; (ii) that his job performance met or exceeded the employer's legitimate expectations; (iii) that his 10 employer actually or constructively discharged him; and (iv) that his employer had a continuing need for the services he had been performing. Torrech-Hernandez v. Gen. Elec. Co., 519 F.3d 41, 48 (1st Cir. 2008). The prima facie showing creates a rebuttable presumption that the defendant-employer violated the ADEA. After the creation of such a presumption, the burden of production shifts to the defendant-employer to articulate a legitimate, nondiscriminatory basis for its adverse employment Hoffman v. Applicators Sales & Serv., Inc., 439 F.3d action. 9, 17 (1st Cir. 2006) (internal citations and quotation marks omitted). If the employer is able to articulate a legitimate, non-discriminatory reason, the presumption afforded to the plaintiff's prima facie case disappears, and the plaintiff must then show[] that the employer's articulated challenged employment action was pretextual. Circumstantial evidence, reason for the Id. at 17. including evidence of discriminatory comments, may be probative of pretext. See Webber v. Int l Paper Co., 417 F.3d 229, 234 (1st Cir. 2005). However, not every biased remark raises a triable issue of fact. [S]tray workplace remarks normally are insufficient, standing alone, to establish discriminatory animus. either pretext or Torrech-Hernandez, the 519 requisite F.3d at 55 (quoting Velazquez-Fernandez, 476 F.3d at 11-12) (alterations omitted). To escape classification 11 as a stray remark, a comment must be actually discriminatory, Ramirez Rodriguez v. Boehringer Ingelheim Pharms., Inc., 425 F.3d 67, 79-80 (1st Cir. 2005); be made by the key decisionmaker or [someone] in a position to influence the decisionmaker, id. at 79; and must relate to the decisional process, Rios-Jimenez v. Principi, 520 F.3d 31, 40 (1st Cir. 2008) (quotation marks and citation omitted). In particular, statements directly related to the challenged employment pretext inquiry. action may be highly probative in the Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 36 (1st Cir. 2001). In addition to content, timing and context help sift stray comments from those connected to the decision in question. See Gonzalez v. El Dia, Inc., 304 F.3d 63, 69-70 (1st Cir. 2002). In general, the RICRA and FEPA standards track those of See Neri v. Ross-Simons, Inc., 897 A.2d 42, 48 federal law. (R.I. 2006) ( This Court has adopted the federal legal framework to provide structure statutes. ) claims, the discrimination to our state employment discrimination The difference is that, in addition to pretext mixed under motive FEPA.3 theory This still approach works does not for age require direct evidence of bias; as in pretext cases, a plaintiff may rely on circumstantial evidence. 3 See Casey v. Town Where discrimination was not a but-for cause, but only a motivating factor for discharge, FEPA simply limits damages. See R.I. Gen. Laws 28-5-24(a)(2). 12 of Portsmouth, 861 A.2d 1032, 1038 n.3 (R.I. 2004) ( [P]laintiff is correct that requiring direct evidence [of discrimination under FEPA] would constitute error. ); Resare v. Raytheon Co., 981 F.2d 32, 39 & n.13 (1st Cir. 1992) (discussing the mixed motive theory embodied in R.I. Gen. Laws § 28-5-7.3). B. CVS s Challenge to Plaintiff s Prima Facie Case Defendant first takes a swipe at the Plaintiff s proffered prima facie showing. second leg of It argues that the Needs Improvement rating for Drumm s 2005 performance review, negative feedback about her management abilities in each of her reviews, and supervisors other performance demonstrate that legitimate expectations. 48. Drumm problems did not raised meet by her Defendant s See Torrech-Hernandez, 519 F.3d at Drumm counters that her reviews showed that she Meets Expectations in three (Def. s Facts ¶ 30.) out of four years, including 2006. There was thus no pattern of declining performance of a type that courts have found to knock out a prima facie case of discrimination. 170 F.3d 734, 743 (7th Cir. 1999). that Drumm received salary Johnson v. Zema Sys. Corp., There is also no dispute increases and bonuses at the conclusion of every review period. A plaintiff s requires only a burden minimal Hernandez, 519 F.3d at 49. to make out evidentiary a prima showing. facie case Torrech- Here, the evidence that Drumm s 13 performance went from Needs Improvement in 2005 to Meets Expectations in 2006, and that she consistently earned bonuses and salary increases, easily carries that burden. See Cotton v. City of Chicago, No. 01 C 3142, 2002 WL 1284386, at *5 (N.D. Ill June 6, 2002) (rejecting a challenge to the legitimate expectations element despite evidence that a plaintiff had been disciplined three times, in part because the plaintiff had received all scheduled Podiatric Med. Ass n., salary 700 increases ); F. Supp. 592, Buttell 596 v. (D.D.C. Am. 1988) (noting that the plaintiff received annual bonus and salary increases despite as evidence evidence problems). establishes that While a of meeting legitimate expectations supervisors identified performance evidence of non-discriminatory her basis shortcomings for her clearly discharge for purposes of the second step of McDonnell-Douglas analysis, it does not shut down this action at the prima facie stage; rather, it shifts the burden back to Drumm to show that Defendant s proffered non-discriminatory reason is but a pretext for in the record that discrimination on the basis of her age. C. Evidence of Age Discrimination Defendant cites substantial evidence Plaintiff had difficulty managing her creative team. Drumm does not dispute that this carries Defendant s burden to articulate a neutral basis for her discharge. 14 Instead, for purposes of her ADEA claim, she discrimination. contends that reason was a pretext for age The decisive question is thus whether she can point to sufficient circumstantial evidence of bias to allow a jury to conclude that she was actually fired because of her age. In the alternative, Drumm asserts the right to relief under a mixed motive framework for discrimination pursuant to state law. For this theory, the question is whether Drumm can identify sufficient evidence to allow a jury to conclude that age-based bias played a role in Defendant s decision, notwithstanding the existence of other reasons. To both of these ends, Drumm relies exclusively on Price s March 2007 comment. As fully explained below, the remark may reasonably be interpreted as expressing the belief that Drumm was too old to do her job and should be replaced with someone younger. Therefore, summary judgment is inappropriate, and a jury must decide why Drumm was let go. 1. The same-actor inference As an initial matter, Defendant argues the Court can reject Plaintiff s pretext theory on the basis of Price s discussions with Foulkes and Payette in late 2006. There is no dispute that Price made the decision to fire Drumm, along with Payette. Def. s Facts ¶ 41.) (See What his 2006 dialogue with Foulkes and Payette shows, according to Defendant, is that Price was also responsible for saving Drumm s job five months earlier. 15 The way Defendant tells it, Foulkes floated the idea of discharging Drumm, but Price intervened because he thought he could help Drumm succeed. Having thus stood up for Drumm, who was already over fifty years old when Price joined the company, why would he suddenly develop age-based prejudice against her? That, Defendant asserts, would be implausible; instead, the Court should draw the inference that age was not the reason for his decision. Defendant relies on the principle that, [i]n cases where the hirer and firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 847 (1st Cir. 1993) (internal citation and quotation marks omitted). Under same the actor circumstances, inference Defendant s rests on an invocation of insufficiently foundation to allow for summary judgment. the solid Defendant s argument is premised on the idea that saving someone from being fired is the same as hiring that person. This would allow Price, in effect, to step into the shoes of Drumm s hirer. Even assuming this extended variation on the same-actor inference would be legally appropriate, Drumm disputes the substance conversation Price held with Foulkes and Payette. 16 of the (See Pl. s Statement of Disputed Facts, Nov. 20, 2009 ( Pl. s Dispute ) at 2.) She argues their after-the-fact testimony is self-serving and contradicted by contemporaneous documents. (Id. at 3.) The Court is obliged to grant all reasonable inferences in Drumm s favor. this rubric Straughn, 250 F.3d at 34. on its characterization of Payette, cannot and have reject occurred head; the it asks exchange Drumm s as the Defendant would turn Court among argument Defendant to Price, that the describes accept its Foulkes and conversation it. Yet, a reasonable jury could take Drumm s performance evaluation for 2006 the time period during which her poor work allegedly justified termination as a basis for doubting that she was on the threshold of dismissal and pulled back from the brink by Price. While Defendant s it is true that assertion that the Drumm review received does substantiate negative feedback, (see Def. s Mem. Ex. B., Ex. 38 thereto, at 8), it also gives Drumm an overall rating of Meets Expectations, and praises her (See Def. s Mem. Ex. B., Ex. 38 thereto, at 7 creative work. ( All [Drumm s] key stakeholders excellent Creative work. see [her] as providing She has earned the Merchants respect based on her talent. [Drumm] has taken the work to a new level and much has also been better listening. ).) 17 with the Merchants around In other words, there is a genuine dispute of fact as to whether Drumm was hanging by a thread before Price stepped in, or instead on solid footing. This factual dispute erodes the keystone of the modified same-actor inference Defendant seeks: the proposition that Price might as well have hired Drumm. Defendant, of course, is entitled to argue at trial that Price harbored no bias, based on testimony that he stuck his neck out for Drumm. Indeed, a jury instruction on the inference may well be appropriate at trial.4 But factual uncertainty about the elements of the same-actor inference precludes summary judgment at this stage of proceedings. See Quinby v. WestLB AG, No. 04 Civ. 7406 (WHP), 2007 WL 1153994, at *8 (S.D.N.Y. Apr. 19, 2007) (repudiating same-actor inference because, in part, there were disputed issues of fact regarding whether it was [the firer or another person] who hired [p]laintiff ); Stuart v. Metro. Gov t of Nashville & Davidson County, No. 3:06-cv-1000, --- F. Supp. 2d ----, 2009 WL 5196066, at *8-9 (M.D. Tenn. Dec. 21, 2009) (rejecting same actor inference in part because it [was] not clear that the plaintiff was hired and then subjected to the adverse employment action by precisely the same person ). 2. Substance of Price s comment This dispute boils down to whether Price s alleged comment can reasonably be viewed as evidence of age-based animus, or 4 The Court will reserve this issue for a later time. 18 whether, as Defendant contends, it is a mere stray remark that cannot defeat summary judgment. Drumm recalls the remark as follows: Wendy, we know all about your Sophie contemporaries. There is no need to contemplate your paradigm. There is no empirical mystery here. We need a younger, fresher missionary for Creative. And Wendy, let s face it, that is not within your scope, and that is a problem for you. (Pl. s Facts ¶ 20.) [C]onstru[ing] the record in the light most favorable to Drumm, Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009), the Court must accept her version of the statement for purposes of considering what a reasonable jury might take as evidence of discrimination.5 In addition, Defendant does not dispute that the most damning parts of what Price said, including the reference to a fresher, younger missionary, and the phrase, Let s face it, not within [your] scope, is a problem contemporaneous notes. Moreover, dismissed dispute as that Price [you], appear in Drumm s (Def. s Facts ¶ 46.) Price s simply for a alleged stray was Rodriguez, 425 F.3d at 79. a warning remark. key to Drumm First, cannot there decisionmaker. is be no Ramirez Second, the terms fresher, younger 5 Defendant attempts to preclude Plaintiff from alleging that Price said he needed a missionary for Creative as inconsistent with prior sworn testimony, but Plaintiff did use exactly that phrase at her deposition. (See Def. s Mem. Ex. B 230:24-231:10.) 19 missionary explicitly refer to age. And the declaration that this was not within [Drumm s] scope and was a problem for her, indicates that Price thought Drumm could not serve as the missionary Price wanted because of her age. Thus, a straightforward reading of Price s statements is that they are discriminatory because they express age-based bias. See id. at 79. Third, the last two sentences of the comment reflect a relationship F.3d at 40. to the decisional process. Rios-Jimenez, 520 Taken together, they clearly convey the message that it was a problem that Drumm could not be the younger, fresher missionary department. Defendant needed for the Creative A reasonable jury could find that the problem was Drumm s age, and this motivated Price to let her go. In terms of timing, Price s comment falls within the zone of relevance recognized in case law for evidence of pretext. He decided to fire Drumm in April or early May, 2007, at most a little more than a month after the March 27 comment. Compare Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000) (recognizing comments made two weeks prior to employment decision as evidence of pretext) and Kelley v. Airborne Freight Corp., 140 F.3d 335, 347-48 (1st Cir. 1998) (finding a decisionmaker s statement nine months prior to termination to be relevant evidence) with Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 20 670, 676 (1st Cir. 1996) (finding comments made eight months before discharge were too remote). In sum, Price s cautionary words to Drumm display classic characteristics of remarks that preclude summary judgment: they explicitly refer to age and presage Drumm s replacement with a younger employee. See, e.g., Duval v. Callaway Golf Ball Operations, Inc., 501 F. Supp. 2d 254, 265-66 (D. Mass. 2007) (taking a decisionmaker s comment during a speech that guests would notice a lot of young faces, and that s not by accident, that s by design as evidence of pretext); Warren v. Nevada Coaches, LLC, No. 2:06-CV-0035-RCJ-LRL, 2007 WL 2084881, at *4 (D. Nev. July 18, 2007) (taking a stated preference for younger blood and fresh blood as evidence of pretext); see also Ezell v. Potter, 400 F.3d 1041, 1051 (7th Cir. 2005) (taking a comment about get[ting] rid of older carriers and replac[ing] them with younger, faster carriers as evidence of discrimination).6 6 Price s remarks provide stronger evidence of discrimination than in the cases cited by Defendant. To cite one example, in Straughn, an employee who played a subordinate role in the dismissal decision had on occasion used an offensive southern black accent during meetings with the plaintiff, but not during or in relation to the challenged employment action. Straughn, 250 F.3d at 36-37. Here, Price played the central role in firing Plaintiff, and as explained above, it is reasonable to view his potentially ageist remark as relat[ing] to that action. Similarly, in Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 97 (1st Cir. 1996), the individuals who made racial comments had no hiring or firing 21 Defendant attempts to drain Price s remarks of portent by emphasizing the context of the conversation he was having with Drumm at the time. Observing that, as a woman over fifty, she herself was closer than other executives to the sixty-five-andover Sophie paradigm Defendant uses for marketing, Drumm allegedly shared some ideas for targeting the Sophie audience. The gist of Price s response, Defendant pleads, was only to tell Drumm she was barking up the wrong tree. to fixate preference on to missionary. the Sophie focus on (Def. s paradigm, Caroline Mem. at He did not want Drumm and as 7.) instead a Given stated younger this a fresher alternative reading, Defendant argues Price s comment is at best ambiguous, and at worst completely incomprehensible. Either way, Defendant asserts it is insufficient as a matter of law to overcome the evidence of Drumm s poor management skills and allow her to reach a jury on her discrimination claims. Even if Price s terminology can be viewed as ambiguous (or gobbledygook),7 this does not secure summary judgment for authority over the plaintiff, unlike Price in this case. In Gonzales, the plaintiff identified neither the time nor the context of ageist remarks, and could not state whether they had been made at a time proximate to the decision at issue. Again, that is not the case for Gonzales, 304 F.3d at 69-70. Plaintiff here. 7 Of course, it is not up to the Court to weigh the evidence at this stage, but Defendant s interpretation is less than convincing. Why would Price refer to Caroline, the abstract representation of a customer segment, as a missionary? In the 22 Defendant. evidence True, federal courts previously required direct to proceed discrimination, suffice. and with found a that mixed motive ambiguous theory comments did of not See, e.g., Vesprini v. Shaw Contract Flooring Servs., Inc., 315 F.3d 37, 42 (1st Cir. 2002) (finding that a comment that the plaintiff should step back and let the young stallions run the [day to day] business could have merely been a nonactionable reflection on generational passage ). However, in the Title VII context, the Supreme Court abolished the direct evidence requirement in Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003). In any event, after Gross, Drumm cannot rely on the mixed motive model for her ADEA claim, because she must show that age was a but-for cause of her termination. Gross, 129 S. Ct. at 2351. thus would have no See The direct versus indirect analysis relevance to her federal claim even if direct evidence were still necessary to bring a mixed-motive case. In fact, even when applying the now-defunct direct evidence requirement, the First Circuit acknowledged that the very same ambiguous comments that previously could not carry a mixed-motive claim may evidence of pretext. nevertheless See serve as circumstantial Fernandes v. Costa Bros. Masonry, end, it will be for a jury to decide between these various interpretations. 23 Inc., 199 F.3d 572, 583 (1st Cir. 1999) (finding that an ambiguous comment which in terms bears upon [the defendant s] repeated refusals to rehire the appellants, sufficiently implicates the decisional process to avoid classification as a stray remark ), abrogated on other grounds by Desert Palace, 539 U.S. at 101-02.8 For the reasons of stated age above, Plaintiff discrimination to has adduced defeat summary sufficient evidence judgment. Defendant s motion with respect to her ADEA, RICRA, and FEPA claims must therefore be denied. B. Breach of Contract and Promissory Estoppel In addition to her central claim of age discrimination, Plaintiff has asserted a claim for severance benefits for the duration of her unemployment following dismissal. liability arises from breach estoppel, according to Drumm. written employment documents of contract and Defendant s promissory There is no dispute that her do not provide for severance. Rather, Drumm contends that the voicemail left by Sheil, and Drumm s subsequent conversation with Sheil, establish either a contract or legally-binding pledge to pay Drumm s salary until 8 As for state law, Rhode Island does not require direct evidence to prove claims of discrimination, whether styled as mixed-motive or pretext actions. See Casey, 861 A.2d at 1038. Accordingly, even if arguably ambiguous, Price s comment is cognizable as circumstantial evidence of bias for purposes of all Plaintiff s discrimination claims. 24 she found contract.9 The a new job, separate and apart from her written Neither of these theories is sustainable. parties agree that Rhode Island contract and promissory estoppel claims. law governs the In this state, [f]or parties to form an enforceable contract, there must be an offer and an acceptance. Opella v. Opella, 896 A.2d 714, 719-20 (R.I. 2006); see Smith v. Boyd, 553 A.2d 131, 133 (R.I. 1989) ( Under traditional contract theory, an offer and acceptance are indispensable to contract formation, and without such assent a contract applicable is not here,10 formed. ). With identifying an limited offer exceptions and acceptance not is necessary to demonstrate that [e]ach party . . . ha[s] and manifest[s] an objective intent to be bound by the agreement. Opella, 896 A.2d at 720; see Smith, 553 A.2d at 133 (explaining that courts in Rhode Island must look to an external interpretation of the party s or parties intent as manifested by action ); see also Mills v. R.I. Hosp., 828 A.2d 526, 528 (R.I. 2003) ( [A] litigant must prove mutual assent or a meeting 9 Presumably because Plaintiff claims that the alleged contract or promise is collateral to her written agreement, and not something that sheds light on the document itself, Defendant does not raise a statute of frauds objection. 10 Plaintiff does not, for instance, assert that the conduct of the parties was such as to substantiate the existence of an implied contract notwithstanding the absence of a formal offer or acceptance. See Restatement (Second) of Contracts § 22 cmt. b (1981). 25 of the minds between the parties. ) (citation and internal quotation marks omitted). It is true that whether a contract materialized ordinarily a question of fact for the factfinder. is Marshall Contractors, Inc. v. Brown Univ., 692 A.2d 665, 670 (R.I. 1997); accord Bina v. Providence Coll., 39 F.3d 21, 27 (1st Cir. 1994) (applying Rhode Island law). But in this case, even considering the voicemail and the alleged conversation with Sheil in the light most favorable to Drumm, no reasonable jury could find that Defendant objectively intended to be bound to the commitment Drumm describes. Construing Drumm s allegations broadly, she contends that the facts fit one of two patterns of contract formation, neither of which works. First, Drumm portrays the voicemail from Sheil as an acceptance of Drumm s prior request for a full severance package. (Drumm. Aff. ¶ 7.) Drumm affirms that she took [the voice mail] to be an acceptance of my request for guaranteed continuation of my salary until I found suitable alternative employment. (Id.) Second, her allegations might also be read to allege that the voicemail constituted an offer that Drumm later accepted during the follow-up call. The problem with both of these theories is that there is no congruity between the deal Drumm claims she made and what Sheil said in the message: 26 [W]e would never put anything having to do with severance in an offer letter. . . . [T]ypically . . . we would give . . . severance based on a program that we would typically [roll] out. And in the case of someone at your level, we would try to make it based on the amount of time we thought it would take the person to get re-employed. But there wouldn t be any way that we would be able to extend or write into an offer letter that you would be eligible for a certain amount of severance. (Pl. s Facts ¶ 9.) No reasonable jury could interpret the voicemail as an acceptance of Drumm s purported request to be paid her full effective, an salary until acceptance she must found be a new definite job. and Ardente v. Horan, 117 R.I. 254, 259 (R.I. 1976). definitely provide a and unequivocally severance state package that covering unemployment Drumm would face if discharged. not unequivocally agree to anything. be unequivocal. Sheil did not Defendant the To full agreed to period of In fact, she did She only described what would [t]ypically occur in the case of someone at [Drumm s] level. (Pl. s Facts ¶ 9.) Moreover, even hypothetically, such assuming that her Sheil message were could not be speaking viewed as a counteroffer to Drumm s request, Sheil did not propose to pay Drumm s salary for the duration of her unemployment. See Ardente, 117 R.I. at 259-60 ( An acceptance which is equivocal or upon condition or with a limitation is a counteroffer. ). She ventured that Defendant would 27 try to provide payments based on the amount of time that Defendant thought it would take the hypothetical employee to get a new job. If anything, Sheil s hesitance communicated the intent not to be bound by contract. the voice salary At a minimum, there is no reasonable way to interpret mail pending as a guaranteed re-employment. continuation (Drumm. Aff. of ¶ [Drumm s] 7.) Thus, assuming Drumm accepted the terms stated in Sheil s voicemail during the follow-up call, and that the parties thus formed an oral contract, it does not provide for the benefits Drumm seeks.11 In short, the only reasonable conclusion is that Defendant did not agree to the deal Drumm wanted. 11 The fact that Drumm Paragraph eight of Plaintiff s affidavit might be misconstrued as proposing a third scenario: the parties exchanged an offer and acceptance during the subsequent telephone conversation between Plaintiff and Sheil. Plaintiff states, [Sheil] confirmed to me that CVS s promise was that if my CVS employment were to be terminated for any reason, CVS would pay me my salary until I found new employment. (Drumm Aff. ¶ 8.) Viewed in isolation, Sheil s alleged reference to CVS s promise could be mistaken for an offer that went beyond whatever she promised on the voicemail (which, as discussed, was little to nothing). (Drumm Aff. ¶ 8.) In context, however, CVS s promise refers to the one Sheil allegedly made in the recorded message, not a new offer with better terms. Plaintiff states that, during the call, she confirm[ed] what [she] understood to be [Sheil s] intention in the recorded message she left (id.), and insists that [t]he audio recording was the communication by which CVS accepted [Plaintiff s] condition of severance agreement. (Pl. s Disputed Facts ¶¶ 4-5.) Thus, Plaintiff s allegations leave no room for the improbable inference that she extracted a more favorable commitment than the one contained in the voicemail during the follow-up call. Velázquez-Fernández, 476 F.3d at 10. 28 understood differently cannot raise a triable issue of fact on her contract claim. See Weaver v. Am. Power Conversion Corp., 863 (R.I. A.2d 193, 200 2004) (affirming summary judgment despite evidence of the plaintiff s subjective intent to enter a contract). It is even clearer that summary judgment is appropriate on Drumm s promissory estoppel claim. To succeed, Drumm must establish that Defendant made a clear and unambiguous promise to abide by the severance terms she seeks. 818 A.2d 608, 626 (R.I. 2003). Filippi v. Filippi, As noted, the record does not support any reasonable conclusion that Defendant agreed to them. At best, severance it shows that Defendant Defendant offered itself to would pay an amount determine appropriate in the event of Drumm s termination. to of be This falls far short of a clear, unambiguous promise to maintain Drumm s full salary until she found a new job. speak much more plainly do not In fact, inducements that qualify as clear enough for For instance, Filippi involved promissory estoppel purposes. the declaration, I want you to come back and run [the family business] for me, and if you do this for me, [the business] will be yours and you will take care of the family. 626. Id. at These statements flunked the promissory estoppel test, because they were subject to several possible interpretations about the scope of the pledge. 29 See id. (explaining that the statement failed to indicate whether [the speaker] meant . . . the business including the good will or simply the stock of [a holding company], business] ). unambiguous which Given owned the requirement, high no the bar physical to assets of [the the clear and meeting reasonable fact finder could conclude that Sheil s representations measure up. For each of these reasons, Defendant is entitled to summary judgment on Plaintiff s contract and promissory estoppel claims. C. Emotional Distress Defendant intentional attacks infliction Plaintiff s of emotional claims for distress negligent on two and fronts. First, it argues that they fall within the broad exclusivity provision of the Rhode Island Workers Compensation Act ( WCA ), which would mean that they cannot be brought in this Court.12 Second, Defendant contends that the emotional distress claims fail on the merits. While question,13 Defendant s first the need Court argument not 12 might address it. present Even a if close the The WCA commands that its remedy for workplace injuries shall be in lieu of all rights and remedies as to that injury now existing, either at common law or otherwise against an employer. R.I. Gen. Laws 1956 § 28-29-20 (2010). 13 Compare Iacampo v. Hasbro, Inc., 929 F. Supp. 562, 582 (D.R.I. 1996) (finding that the WCA provides the exclusive remedy for claims . . . [for] intentional infliction of emotional distress in the workplace ) with Cady v. IMC Mortgage Co., 862 A.2d 202, 212 (R.I. 2004) (finding that the majority of plaintiff s numerous claims related to the termination of 30 exclusivity measures in the WCA do not apply, Drumm fails to respond to Defendant s challenge to the merits of her claims. She points to no evidence demonstrating that Defendant s conduct strayed beyond all possible bounds of decency, such that it was utterly intolerable in a civilized community, as would be Swerdlick v. Koch, 721 required to prove the intentional tort. A.2d 849, 863 (R.I. 1998). Nor does she identify evidence that she experienced physical symptoms of [the] alleged emotional distress, and that expert medical testimony supports the existence of a causal relationship between the putative wrongful conduct and [the] injuries, as she would need in order to prove the negligence claim. Hawkins v. Scituate Oil Co., 723 A.2d 771, 773 (R.I. 1999). In the absence of any guidance from Plaintiff, the Court lacks a basis for finding a factual dispute about these core elements of her tort claims. Defendant is therefore entitled to judgment on both. VI. Conclusion For the reasons explained above, DENIED in part and GRANTED in part. in favor estoppel, of and Defendant emotional on motion is The Court grants judgment Plaintiff s distress Defendant s contract, claims, which promissory are hereby employment, as opposed to injury arising from workplace activity, are beyond the purview of the WCA, but not addressing the emotional distress claims specifically). 31 dismissed. The Court denies summary judgment with respect to Plaintiff s ADEA, RICRA, and FEPA claims. IT IS SO ORDERED. William E. Smith William E. Smith United States District Judge Date: April 2, 2010 32
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