Thornton v. Macy's Retail Holdings, Inc.

ASHKHEN THORNTON, Plaintiff, v. MACY'S RETAIL HOLDINGS, INC., BETTY DEPIERRE, OMAR REYES,and CATHY TIKELLIS, Defendants.

Civil No. 20-40045-DHH

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

March 5, 2021

Report and Recommendation

Hennessy, M.J.

This matter comes before the Court on the motions of Defendants Macy's Retail Holdings, Inc. ("Macy's"), Betty DePierre ("DePierre"), and Cathy Tikellis ("Tikellis" and collectively "Defendants") to dismiss the complaint.¹ [Dkt. Nos. 24, 48]. Plaintiff Ashken Thornton, appearing pro se, has filed a letter in opposition to the first of these motions, but failed to file anything in opposition to the second motion. [Dkt. No. 28]. This matter is now ripe for adjudication.² For the following reasons, I recommend the motion to dismiss filed by DePierre and Tikellis [Dkt. Nos. 24] be ALLOWED and the motion to dismiss filed by Macy's [Dkt. No. 48] be ALLOWED in part and DENIED in part. I recommend Reyes be DISMISSED sua sponte.

I. BACKGROUND

A. Thornton's Employment

Thornton is a former Macy's employee assigned to the Lancôme cosmetics counter. [Dkt. No. 1 ("Compl.") at p. 6]. Thornton is of Armenian descent and at the time of her termination in August 2014, she was 45 years old. [Dkt. Nos. 25-1, 49-1 ("MCAD Charge") ¶ 1].³ She alleges that her co-workers were in their 20's. [Id. ¶ 3]. In July 2013, Manager Sara Morand promoted Thornton to be the Lancôme counter manager. [Id.]. Thornton alleges a series of adverse interactions with co-workers following her promotion, eventually leading to her termination on August 8, 2014.⁴

Thornton alleges that in October 2013, co-worker DePierre disparaged her appearance, saying Thornton needed to use skincare products because she was older than other employees. [Compl. at p. 9; Dkt. Nos. 25-3, 49-3 ("MCAD Decision") at p. 4]. In November 2013, another co-worker commented that Thornton did not know how to communicate because of her "national language," saying that her accent made her sound "rude." [MCAD Decision at p. 4].

Thornton also alleges incidents at work that she considers harassment. These include: her co-workers deliberately messing up her workspace and throwing away her business cards in October 2013 [Compl. at p. 11; MCAD Charge ¶ 4]; a manager falsely accusing Thornton on May 21, 2014 of stealing a customer from another employee [Compl. at pp. 13-14]; a co-worker threatening "punch out" Thornton on December 24, 2013 [Id. at p. 15]; several co-workers (including DePierre) refusing to accompany Thornton to a seminar on July 23, 2014 [Id. at p. 19];and the consistent failure of Thornton's superiors to respond to Thornton's complaints about these incidents. [Id. at pp. 10, 12, 15].

Additionally, Thornton alleges the following undated incidents: a subordinate falsely saying Thornton made an inappropriate remark about that subordinate's dying grandmother [Id. at p. 13]; DePierre failing to give Thornton a new uniform or cosmetics brushes [Id. at p. 10]; Thornton's subordinates hiding the keys to the cosmetics display box and lying to her about it [Id. at p. 11]; a subordinate deliberately giving her a bad makeover [Id. at p. 12]; co-workers calling Thornton incompetent and unfit [Id. at p. 14]; and repeated incidents of lying by subordinates. [Id. at pp. 11, 13, 14, 18].

B. Macy's Disciplinary Action

On February 8, 2014, Thornton was placed on "Decision Making Leave" or "DML" for underperformance. [Id. at p. 15]. She was told to return to work with an "Action Plan" for improvement. [Id. at p. 16]. According to Thornton, the alleged reason for the DML was Thornton essentially taking credit for sales made by a co-worker by reporting the sale under Thornton's employee ID number. [Id. at p. 16]. Thornton alleges that the transaction was proper, but nevertheless complied with the order to create an "Action Plan." [Id. at pp. 15-16]. Thornton attended a meeting in May with Tikellis, a human resources representative, regarding Thornton's performance evaluation. [Id. at p. 17]. At the meeting, Thornton learned she would not receive a raise due to the DML. [Id.] Thornton alleges her DML was pretextual and that her complaints regarding her co-workers triggered the adverse action. [MCAD Charge ¶ 6]

Thornton further alleges that Macy's retaliated against her for her complaints against co-workers when she was reprimanded for allegedly stealing on July 29, 2014. [Compl. at p. 7]. On that day, Omar Reyes, the Regional Security Manager, accused Thornton of stealing merchandise.[Id.]. Thornton acknowledges that she took some cosmetics samples but insists that the practice of taking samples was common, and that only she was reprimanded. [Id. at p. 8] Thornton alleges Reyes kept her in his office for two hours of "brutal harassment" and "savage interrogation." [Id.] Thornton was suspended, and she was told to call Human Resources within 24 hours or face termination. [Id.] Thornton alleges she attempted to do so, but no one answered. [Id.] On August 8, 2014, Tikellis terminated Thornton for violating company policy. [Id.] Thornton alleges the reason for her termination was pretextual, and that her termination was discriminatory and retaliatory. [Id. at pp. 6-8]. To help support this contention, Thornton alleges that she was a highly successful employee, that since she began working at Macy's in 2007, she has never missed a day of work, coordinated several successful events for the Lancôme Counter, was recognized for excellence in participating in Macy's charity work, and won "Best Employee of the Year" in 2010, 2011, and 2012. [Id. at p. 20-21].

C. MCAD and EEOC Exhaustion

On December 30, 2014, Thornton filed a charge of discrimination with the Massachusetts Commission Against Discrimination ("MCAD"), alleging she "was discriminated against by Macy's on the basis of Age (45), National Origin (Armenian), and Retaliation" and that she was subjected "to a hostile working environment" on the same basis.⁵ [MCAD Charge at p. 2; ¶ 10]. She also alleged that her DML resulted from "retaliation because I complained about the comments about my national language and other events that I had brought up to management." [MCAD Charge ¶ 6]. She further alleged she was fired because Macy's wished to replace her with someone younger who was not of Armenian descent. [Id. ¶ 9]. The MCAD charge also expressly alleged the following incidents: two subordinates throwing away her business cards and journal in October2013; DePierre making a disparaging comment about Thornton's appearance in October 2013; an assistant manager making a discriminatory comment about plaintiff's accent in November 2013; the February 2014 DML; the July 29, 2014 interaction with Reyes; and Thornton's termination in August 2014. [MCAD Charge ¶¶ 3-9].⁶

On December 30, 2016, the MCAD made a finding that Thornton's claim lacked probable cause. [MCAD Decision at p. 9]. The Investigator also found Thornton's claim to be time-barred as to incidents which occurred before March 5, 2014. [Id. at pp. 2-3]. Thornton's lawyer failed to prosecute an appeal, as Thornton had requested. [Dkt. No. 28].

D. Procedural History

On April 27, 2020, proceeding pro se, Thornton filed the instant action against Macy's and certain co-workers alleging discrimination, retaliation, and harassment. [Compl. pp. 4, 6]. On May 7, 2020, the undersigned issued an order granting Thornton's request to proceed in forma pauperis, and ordered her to file a document or amended complaint which identified her particular claims, and to show cause as to why her case should not be dismissed on grounds of the statute of limitations and the failure to exhaust her administrative remedies. [Dkt. No. 4]. Thornton responded that she had exhausted her administrative remedies with MCAD and that she was "asserting . . . claims of discrimination and retaliation," based on "race, age, national origin, sex, [and] religion." [Dkt. No. 7 at p. 2]. She also alleged "intimidation, coercion, bullying, harassment and discrimination ... aimed to deprive" her of her right to work. [Id.]. The undersigned declined to rule on whether Thornton's claims were timely or administratively exhausted, [Id. at p. 3], andinferred from Thornton's response that she asserted claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2(a)(1), and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1). [Dkt. No. 8 at p. 2].

E. Thornton's Legal Claims

Thornton does not explicitly identify the laws upon which she bases her suit. [Compl.]. Because she is pro se, this is not fatal to her case. See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008). Her complaint expressly alleges discrimination, retaliation, and harassment. [Compl. pp. 4, 6]. Further, Thornton attributes this conduct to Macy's management and co-workers and alleges it was because of her "[her] look, [her] age, [her] language, [her] personality, and [her] identity in every possible way." [Id. at p. 6]. Her twenty-one page complaint contains a narrative of events and commentary that recounts specific incidents and her complaints to Macy's management. A fair reading of her complaint thus reflects allegations of (1) discriminatory termination; (2) retaliation; and (3) hostile work environment.⁷ I address the motions to dismiss as to these three claims.

II. LEGAL STANDARD

Rule 8 of the Federal Rules of Civil Procedure provides, in relevant part, that "[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a)(2). At a minimum, "the complaint should at least set forth minimal facts as to who did what to whom, when, where, and why - although why, when why means the actor's state of mind, can be averred generally." Educadores Puertorriquenos En Accion v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004).

On a motion to dismiss, "the district court may properly consider...