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Nicholson v. Petco Animal Supplies Stores, Inc.

United States District Court, M.D. Pennsylvania

September 6, 2019




         Plaintiff 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).

         I. Factual Background and Procedural History[1]

         Petco 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 as follows.

         In 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).

         Nicholson 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. 76:17-86:19[2]).

         Nicholson 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. 34:7-21, 89:4-13).

         Nicholson 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).[3] 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. 212:15-213:6).

         Nicholson 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.)

         In 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).

         McVey 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).

         Before 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).

         On 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).

         McVey 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).

         Nicholson 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).

         On 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).

         Several 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.

         II. L ...

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