Drumm v. Cvs Pharmacy Inc

701 F.Supp.2d 200

Wendy DRUMM, Plaintiff,v.CVS PHARMACY, INC., Defendant.

CA. No. 08-232 S.

United States District Court D. Rhode Island.

April 2, 2010.

COPYRIGHT MATERIAL OMITTED

R. Daniel Prentiss, Esq., R. Daniel Prentiss, PC, Providence, RI, for Plaintiff.

Todd M. Reed, Esq., Edwards Angell Palmer & Dodge LLP, Providence, RI, for Defendant.

OPINION AND ORDER

WILLIAM E. SMITH, 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 benefits, and tortiously causing her emotional distress. 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. While not overwhelming evidence, the remark is potentially sufficiently suggestive of discrimination to narrowly prevent summary judgment. Plaintiff's remaining claims, however, do not fare as well and cannot 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 exploring employment opportunities with Defendant in 2003. In the course of her discussions with CVS, she asked about severance benefits. A recruiter named Ellen Sheil responded by leaving the 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 of Undisputed Facts, Nov. 20, 2009 (“Pl.'s Facts”) ¶ 9.) 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 Drumm, she would receive severance payments until she found new employment. ( See Affidavit of Wendy Drumm, Nov. 19, 2009 (“Drumm Aff.”) ¶ 8.) Defendant disputes that Sheil made any such representation. ( 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. ( See id. ¶¶ 1, 2.)

Foulkes claims there were problems with Drumm's job performance from 2003 through 2006. Specifically, Foulkes asserts that, between September 2003 and March 2004, she received complaints from CVS employees and business partners about Drumm's professionalism and demeanor. ( See id. ¶¶ 7-10.) ¹ In March 2004, Foulkes presented Drumm with an Individual Development Plan, and counseled her to improve her listening, conflict resolution, and interpersonal skills. ( See Def.'s Mem. Ex. B, Ex. 14 thereto.) 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. ( See Def.'s Mem. Ex. C, Ex. 15 thereto.)

In the spring of 2005, Foulkes allegedly received new complaints about Drumm from members of the Creative Department at CVS. ( See Def.'s Facts ¶¶ 17-18.) Later that year, Foulkes received another alleged complaint 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.” (Def.'s Mem. Ex. B, Ex. 28 thereto.) In connection with the latter, Drumm wrote, “I need to really think things through before I act.” ( Id.) Foulkes replied by thanking Drumm for her “openness,” and writing that she needed Drumm to “make significant improvement on these issues.” ( Id.)

For Drumm's 2005 year-end review, Foulkes rated her as “needs improvement.” ( Id. Ex. B, Ex. 31 thereto.) The review listed team management and communication as areas for improvement. ( Id.) On the form, Foulkes wrote that she was “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.” ( See Pl.'s Facts ¶ 13.) 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 increase, a second bonus, and additional stock options. ( 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 of Drumm's performance back to “Meets Expectations.” ( See Def.'s Facts ¶ 30.) 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. In this role, he took over as Drumm's direct supervisor. ( See Def.'s Facts ¶ 26.) Foulkes discussed Drumm's past performance issues with Price and Defendant's Director of Human Resources, Kathy-Jo 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. He states that he requested the opportunity to help “manag[e Drumm's] development” and help her “become a success” in her role. (Def.'s Mem. Ex. I. at 26:2-15, 27:10-20.) Drumm, however, disputes this testimony as self-serving and contradicted by the documentary record, including her performance evaluations.

Price alleges that he received several performance-related complaints about Drumm from her colleagues in early 2007. ( See Def.'s Facts ¶¶ 33, 35, 38-39.) The complaints allegedly related to improper business travel, an attempt to recruit a member of another department to work on Drumm's team, and 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 to Drumm several months after he became her supervisor. 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.” (Def.'s Mem. Ex. I 11:13-18.) The other two names are “Caroline,” who represents the youngest segment, and “Vanessa,” who represents the middle. ( Id.)

In late March, 2007, Price met with Drumm to discuss marketing strategy. She alleges Price 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.) In substance, the majority of this comment is not in dispute. The major exception is that Defendant denies 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 that Drumm's grammatical reconstruction of 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. (Def.'s Mem. Ex. I 6:4, 7:18-24.) Price “finalized [the] decision in May.” ( Id. 7:24.) Defendant officially terminated Drumm's employment in July 2007, and granted her thirteen...