United States District Court, M.D. Pennsylvania
CHRISTOPHER C. CONNER, CHIEF JUDGE
Robert Nicholson, Jr. (“Nicholson”) filed this
age discrimination lawsuit against his employer, defendant
Petco Animal Supplies Stores, Inc. (“Petco”).
Nicholson alleges discrimination and retaliation in violation
of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq.
Petco moves for summary judgment on both claims. (Doc. 22).
Factual Background and Procedural
is a “leading specialty retailer of premium pet food,
supplies, and services, ” operating over 1, 500 stores
in the United States and Puerto Rico. (Doc. 24 ¶ 1).
Nicholson has been employed by Petco since April 2006.
(Id. ¶¶ 8, 11). He currently is a
“Store Leader, ” supervising one of Petco's
stores in Harrisburg, Pennsylvania, a position he has held
since October 17, 2016. (Id. ¶¶ 11-12).
Before that time, Nicholson was a “District Leader,
” overseeing and managing 12 to 25 Petco stores in
Maryland and Pennsylvania. (Id. ¶¶ 8-9,
11-14). The parties agree that Store Leader is a
“lower” position than District Leader.
(Id. ¶ 11; Doc. 28 ¶ 11). The facts
surrounding Nicholson's change in position at Petco are
January 2016, Alan McVey (“McVey”), who is
approximately 12 years Nicholson's junior, was promoted
to Vice President of Regional Operations
(“VPRO”). (Doc. 24 ¶¶ 26-27). This
promotion was part of Petco's “company-wide
organizational and operational” restructuring, which
included, inter alia, new executive leadership and
elevated standards and expectations for store management.
(Id. ¶¶ 24-26). As VPRO, McVey oversaw 18
District Leaders and approximately 400 Petco locations on the
East Coast. (Id. ¶¶ 28-29). McVey was
expected to spend at least 50 percent of his time making
announced and unannounced visits at stores in his region.
(Id. ¶ 31). Before becoming VPRO (and
concomitantly Nicholson's immediate supervisor), McVey
had spoken with Nicholson about the heightened performance
expectations for Petco stores and employees, including
District Leaders. (Id. ¶¶ 34-35).
alleges that, in 2016, McVey made a series of discriminatory
comments regarding Nicholson's age. According to
Nicholson, McVey (1) repeatedly referred to him as the
“senior” or “elder” District Leader
during regional conference calls with other District Leaders
and Petco management; (2) referred to him as an “elder
statesman” during one regional conference call; (3)
asked Nicholson if he had taken “a nap” or
“fall[en] asleep” due to Nicholson inadvertently
muting his phone during a conference call; and (4) questioned
if Nicholson was really “up for that kind of
thing” after Nicholson expressed interest in a regional
position. (Id. ¶ 37; Doc. 36-1, Nicholson Dep.
highlights one specific incident that he claims occurred on
July 12, 2016. On that date, McVey visited a store in
Nicholson's district where he met with Nicholson and six
or seven of the district's Store Leaders. (Doc. 24
¶¶ 44-45; Doc. 28 ¶ 46). Nicholson alleges
that, in front of him and the Store Leaders, McVey made the
following “joke”: McVey called out to the
store's dog trainer and said, “I have . . . a dog
training question.” The dog trainer responded,
“Okay. What's up, ” and McVey replied,
“I have this really old dog, and I can't teach him
any new tricks.” The dog trainer said, “Okay,
” and McVey continued, “Yeah. His name is
Bob.” (Doc. 24 ¶ 46; Doc. 28 ¶ 46; Nicholson
Dep. 196:14-23; Doc. 36-3, Barnett Dep. 14:9-16, 89:4-9).
Nicholson avers that the Store Leaders remained silent after
this exchange and then “walked away” in
discomfort. (Nicholson Dep. 196:23-197:4). McVey testified
that he does not “recall” making the alleged joke
or any other age-related comments. (Doc. 36-2, McVey Dep.
contacted his Human Resources Business Partner, Wayne Barnett
(“Barnett”), about the alleged “old
dog” comment shortly after the incident. (Doc. 24
¶ 50). Nicholson told Barnett that McVey's comment
made him uncomfortable, but asked Barnett not to tell McVey
about this complaint. (Id. ¶ 52). On July 18,
2016, Barnett-who felt compelled by his job responsibilities
to communicate the complaint-spoke with McVey via telephone
about Nicholson's concerns. (Id. ¶ 54;
Barnett Dep. 18:16-22, 19:8-23; Nicholson Dep. 211:22-212:9).
According to Barnett, McVey responded that “it was
possible that he [McVey] had made commentary that he felt was
lighthearted, that may have been . . . similar to the
verbiage that [Nicholson] had stated to [Barnett], but
[McVey] didn't recall the exact verbiage, and he
didn't recall the context.” (Barnett Dep.
20:4-9). Barnett counseled McVey that if the
comment had been made, “it was certainly
ill-advised” or “inappropriate” and that
McVey “should refrain going forward from any kind of
commentary like that again.” (Doc. 24 ¶ 56).
Barnett then called Nicholson and informed him that he had
spoken to McVey about the incident. (Id. ¶ 57).
Nicholson attests that, during this phone call, Barnett told
Nicholson that McVey had admitted making the “old
dog” comment and felt badly about it. (Nicholson Dep.
claims that after Barnett spoke with McVey regarding the
“old dog” comment, McVey began to treat Nicholson
differently. (Doc. 24 ¶ 61). Nicholson avers that McVey
would “dodge” his phone calls and ignore his
emails, that McVey became “dismissive, ” and that
their relationship generally turned “icy.”
(Id.) Nicholson also contends that McVey performed
retaliatory, unannounced store visits in Nicholson's
district, targeting stores that Nicholson had previously
identified as “problem” locations. (Id.)
early September 2016, Regional Pet Services Director Ronee
Wyatt (“Wyatt”) made several unannounced visits
to stores in Nicholson's district to evaluate each
location's pet services. (Id. ¶¶
63-64). Wyatt and Nicholson had previously agreed that such
visits should be unannounced so that Wyatt could properly
assess the stores. (Id. ¶ 64). Wyatt reported
to McVey that some of the stores were in “rough”
or “very, very rough” condition, that one of the
new stores might not be prepared for its opening day, and
that Nicholson had demonstrated a lack of concern about the
new store potentially being unprepared for opening.
(Id. ¶ 66).
performed unannounced visits on approximately eight stores in
Nicholson's district later that month. (Id.
¶¶ 69, 71). Of those eight stores, four or five
needed significant improvement in areas such as
“cleanliness, brand standards, inventory,
merchandising, animal care, and guest engagement.”
(Id. ¶ 71). During a follow-up conference call
between McVey, Nicholson, and Barnett on October 4, 2016,
McVey identified four stores that needed immediate attention.
(Id. ¶ 75). Nicholson agreed that some of the
stores had opportunities for improvement but disagreed as to
the extent of the deficiencies. (Id. ¶ 76;
Nicholson Dep. 291:3-24, 294:10-25, 295:15-296:5). At the end
of the call, McVey asked Nicholson to create an “action
plan” detailing how Nicholson would bring the four
underperforming stores “up to standard.” (Doc. 24
¶ 79; Nicholson Dep. 261:16-23).
this October 4 conference call, Nicholson had contacted
Petco's Senior Employee Relations Specialist, Kristine
Kaswell (“Kaswell”), after he learned of
McVey's unannounced store visits. (Doc. 24 ¶ 112).
Nicholson discussed a host of issues with Kaswell, including
the July 12 “old dog” comment, Nicholson's
complaint to Barnett about this incident, Barnett's
communication of the complaint to McVey, and McVey's
unannounced store visits. (Id. ¶ 113; Nicholson
Dep. 225:1-9). He also informed Kaswell that his relationship
with McVey had turned “icy” after the complaint;
that McVey was failing to respond promptly to his calls and
emails; that McVey did not like him and was “coming
after” him, causing Nicholson to “fear for [his]
job”; and that Nicholson did not feel he was
“part of [Petco's] new regime.” (Doc. 24
¶ 113; Nicholson Dep. 225:9-11). Kaswell told Nicholson
that this “was not typically how these things would
have been handled, ” but because no disciplinary or
other adverse action had yet been taken, there was
“nothing for her to do.” (Doc. 24 ¶ 114;
Nicholson Dep. 225:13-22). She told Nicholson that he should
contact her if he did receive formal discipline and she would
begin an investigation. (Doc. 24 ¶ 114).
October 7, 2016, Nicholson emailed McVey the requested
“action plan, ” which provided a specific course
of conduct for the first 30 days of a longer, 90-day plan.
(Doc. 24 ¶¶ 82-83; Doc. 25-2 at 193-96). Nicholson
also included his notes from his prior visits to the problem
stores, as requested by McVey. (Doc. 24 ¶¶ 79, 82).
On another conference call three days later, McVey accepted
Nicholson's action plan but issued him a formal warning.
(Id. ¶¶ 86-88). McVey testified that he
felt a written warning was necessary due to Nicholson's
lack of “urgency” to correct the identified
problems and his failure to appropriately take ownership of
the underperforming stores in his district. (Id.
¶ 85; McVey Dep. 73:7-75:11). McVey initially delivered
the written warning by reading it over the phone to
Nicholson. (Doc. 24 ¶ 89). The warning recited the
issues that McVey felt needed to be resolved in the
identified stores, and Nicholson largely agreed with
McVey's assessment. (Id. ¶¶ 90-93, 95;
Doc. 25-2 at 198-99).
also suggested on this October 10 call that Nicholson could
step down to a role as Store Leader at one of Petco's
locations as an alternative to moving forward with the action
plan and meeting its requirements. (Doc. 24 ¶¶ 97,
100). The change in position would result in, among other
things, an eight percent salary reduction. (Id.
¶ 100). The parties dispute the nature of this offer and
Nicholson's eventual acceptance. Petco contends that
Nicholson freely and voluntarily chose to move into the Store
Leader position, (see Doc. 24 ¶¶ 103,
105); Nicholson asserts that, through subsequent
“thinly veiled” threats from McVey, the
“offer” became an ultimatum: step down to Store
Leader or be fired from the position of District Leader,
(Doc. 28 ¶¶ 103, 105, 108).
attempted to contact Kaswell on two separate occasions
immediately following the October 10 conference call and
warning issuance. (Doc. 24 ¶ 122). Nicholson called
Kaswell that day, and again on either October 11 or 12.
(Nicholson Dep. 309:3-15, 311:15-21). He left voicemails both
times, indicating that he had received a written warning from
McVey and that he wanted to talk to Kaswell about it, and
also referencing the issue of him “stepping down”
to the Store Leader position. (Doc. 24 ¶¶ 123-24).
Kaswell did not return Nicholson's phone calls.
(Nicholson Dep. 312:17-18).
October 11, McVey provided Nicholson more details about the
step-down offer, explaining that the position would be Store
Leader of Harrisburg store number 1887 and would offer a
salary of approximately $110, 000, which was $8, 000 less
than Nicholson's District Leader salary. (Doc. 24
¶¶ 100, 102; Nicholson Dep. 305:7-14). Nicholson
asked McVey for some time to consider the decision and was
given until Tuesday, October 17. (Doc. 24 ¶ 104;
Nicholson Dep. 301:13-19, 305:16-25). McVey then called
Nicholson back and informed him that Petco needed an answer
by Monday, October 16. (Nicholson Dep. 301:20-23, 306:1-8).
Nicholson verbally accepted the Store Leader position, which
he subsequently confirmed in writing on October 17, 2016.
(Doc. 24 ¶ 106; Doc. 25-2 at 200).
months later, Nicholson filed a charge of age discrimination
with the Equal Employment Opportunity Commission
(“EEOC”), and the EEOC issued a right to sue
letter in December 2017. (Doc. 24 ¶¶ 125, 134; Doc.
25-6). Nicholson timely filed the instant lawsuit, asserting
discrimination (Count 1) and retaliation (Count 2) under the
ADEA. Petco moves for summary judgment on both claims. The
motion is fully briefed and ripe for disposition.