United States District Court, E.D. Pennsylvania
Decided March 8, 2013
[Copyrighted Material Omitted]
For FRANK CRIDLAND, Plaintiff: WILLIAM T. WILSON, LEAD ATTORNEY, MACELREE HARVEY LTD, WEST CHESTER, PA.
For K-MART CORPORATION, Defendant: TODD ALAN EWAN, LEAD ATTORNEY, CHRISTIN CHOI, FISHER & PHILLIPS, RADNOR, PA.
Michael M. Baylson, United States District Judge.
MEMORANDUM RE: MOTION FOR SUMMARY JUDGMENT
Plaintiff Frank Cridland (" Plaintiff" ) commenced this action for employment discrimination, in violation of the Age Discrimination in Employment Act of 1967 (" ADEA" ), 29 U.S.C.A. § 621 et seq., and the Pennsylvania Human Relations Act (" PHRA" ), 43 Pa. Stat. Ann. § 951 et seq., against his employer, Kmart Corporation (" Kmart" or " Defendant" ). Presently before the Court is Defendant's Motion for Summary Judgment (ECF 25). After a review of the record and oral argument on March 7, 2013, and for the reasons that follow, the Court will grant summary judgment to the Defendant.
I. Factual History
The following facts are undisputed or reflect Plaintiff's version of facts in the record, pursuant to this Court's duty to view all facts and inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Frank Cridland is an adult male who was born in 1950. (Complaint ¶ 7). He began working for Kmart as a Store Manager in September of 1996 and was employed in that position until he was terminated, on April 15, 2010. (Pl. Facts ¶ ¶ 1-2). In 2006, Plaintiff was transferred from Kmart's West Chester Store, where he had been working as a Store Manager, to its Reading Store, where he was also installed as a Store Manager. (Id. ¶ 12). Around this time, Kmart began executing a number of remodels of its stores across the country, including the West Chester store. (Id. ¶ ¶ 9-12). Defendant contends Plaintiff was transferred because Regional Manager Kwasi Opoku " had concerns about Plaintiff's ability to improve store standards and maintain the consistency required to implement the remodeling of the store." (Def. Facts ¶ 11). Plaintiff denies this was the reason for his transfer, but admits the remodeling of the West Chester store occurred after he left. (Pl. Facts ¶ 9).
During Plaintiff's tenure at the Reading store, he first reported to District Manager Michael Jemo and subsequently to District Manager David Fisher. In April 2007, he received a 2006 Year-End Review from Jemo which noted that Plaintiff " was given a fresh start in [the Reading Store] and must make sure that he does not let some poor habits come back to haunt him." (Pl. Facts ¶ ¶ 14-15). The Review also stated Plaintiff " must increase the intensity level he has within the store" and " stop settling for Mediocrity." (Def. Ex. B, Cridland 5, p. 3). Also in April 2007, Jemo put Plaintiff on a Performance Improvement Plan (" PIP" ). PIPs are a measure taken at Kmart when an employee faces potential termination (Def. Ex. B, Cridland 6, p. 1) (" [T]he Company reserves the
right to take action up to and including termination if sufficient improvement is not demonstrated." ). The April 2007 PIP provided that Plaintiff needed to improve his performance in several areas: focus on the customer, building and aligning teams, accountability, and teamwork. (Def. Ex. B, Cridland 6, p.1). Jemo wrote, " Frank is inconsistent with his management of the store; he needs to develop a sense of urgency and lead his team to accomplish tasks," and " Frank fails to hold his management or associates accountable to their tasks" and " spends little time on the sales floor following up to their projects." (Id.).
In December 2008, David Fisher replaced Michael Jemo as District Manager for the region encompassing the Reading Store. In April 2009, Fisher completed a 2008 Year-End Review for Plaintiff. The Review noted Plaintiff " makes good business decisions although sometimes falls short of the expectation." (Pl. Facts ¶ 27). It also found he " meets expectations" in several performance areas, such as customer-focus and effective decision making, but " needs development" in the area of " process thinking" and " must maintain the processing center on a more consistent basis." (Def. Ex. B, Cridland 9, pp. 1-2, 4).
In July 2009, Fisher placed Plaintiff on a PIP. (Pl. Facts ¶ 30). The PIP, like that assembled by Jemo in April 2007, found Plaintiff needed to improve his performance across multiple areas: build and align teams, accountability, coaching for execution, and results. The summary of findings, written by Fisher, provides:
Frank is unable to meet daily company standards. Frank was unable to be Clean & Bright Certified on two separate certification dates, 7-15-09 & 7-22-09. Frank has demonstrated poor leadership, communication, accountability and standards. Frank has not met basic store standards and been able to execute  the basic fundamentals of general store operations. Frank is able to utilize SHC components to devise action plans although the lack of proper communication, proper execution [and] the lack of accountability has rendered him ineffective in meeting SHC standards.
(Def. Ex. B, Cridland 10, p. 1).
In August 2009, Fisher assembled a 2009 Mid-Year Review for Plaintiff. While it lacked the evaluative fields and the rankings in the company's year-end reviews, it contained comments by Plaintiff, stating: " My midyear results in going from one of the better managers to struggling was a real eye opener. I have taken to heart all criticisms, and concerns. I am working with dm to improve, and am working on everything I was given. . . . In 15 years, I have never had a review that wasn't at standard." (Def. Ex. B, Cridland 11, p. 2; Pl. Facts ¶ 36).
On September 16, 2009, Plaintiff received a Notice of Corrective Action for " overdue PLCs [price list corrections]." (Def. Ex. B, Cridland 12; Pl. Facts ¶ 39). On November 14, 2009, Plaintiff received two more Notices of Corrective Action, one related to his maintenance of " store conditions" and one related to the store's failure " to be certified on scheduled due." (Def. Ex. B, Cridland 13-14; Pl. Facts ¶ ¶ 40-41). Plaintiff denies there were problems his store's conditions and contends " David Fisher was building a paper trail of alleged deficiencies." (Pl. Facts ¶ 40). He claims the November 14 Notice relating to a failure to be certified was issued after a rigorous examination of the store that involved a " 450-point checklist," and that Plaintiff had been on funeral leave for his wife's aunt at the time. (Pl. Ex. B, p. 81-83).
In November 2009, Regional Manager Kwasi Opoku visited the Reading Store, made observations of its conditions, and recommended that Plaintiff be placed on a
PIP. (Pl. Facts ¶ 63). In his deposition, he stated that he found the store to be " in bad shape," primarily because Plaintiff had failed to implement a system to " organize the layaway" (merchandise customers are able to purchase on payment installment plans). He found " merchandise was just strewn all about in the lofts or the storage areas in receiving." (Def. Ex. C, pp. 23-24). Plaintiff contends that while he has no knowledge of these statements, Opolu had told him upon visiting the store that " the floor looked very good, and [he] commented about minimizing 'outs,' which are voids on the shelf of a particular product that is supposed to be there." (Pl. Facts ¶ ¶ 61-62).
From December 2009 through March 2010, Plaintiff received eight more Notices of Correction. These pertained to failure to meet regional scheduling requirements; failure of the Reading store to be certified; unacceptable store conditions; not scheduling overnight personnel on an evening when a cleaning crew was present; not having cash deposits ready for pickup; and failure to have a backroom locator process. (Def. Ex. B, Cridland 15-22; Pl. Facts ¶ ¶ 42-47). Plaintiff admits he received these Notices and that the December Notice pertaining to a lack of certification had been correct. (See Pl. Facts ¶ 43). But he claims there were no deficiencies as to store conditions, scheduling, or the backroom locator process; rather, " Fisher was building a paper trail of alleged deficiencies which could have been found at many stores." (Pl. Facts ¶ ¶ 42, 43, 46 48, 49).
For three of the Notices, Plaintiff had attempted to provide explanations to Fisher. After receiving the December 22, 2009 Notice, which concerned scheduling, Plaintiff responded in writing that he had " needed to work for 36 hours due to call offs from work by other employees during a snow storm" (Def. Ex. B, Cridland 18; Pl. Facts ¶ 44). After receiving the January 1, 2010 Notice, concerning cash deposits, Plaintiff responded in writing that he had tried to have the deposits ready, but any delay " was because of snow." (Def. Ex. B, Cridland 19; Pl. Facts ¶ 45). For the January 1, 2010 Notice, concerning overnight personnel, Plaintiff responded in writing by explaining that he had instructed the night ...