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Coogan v. FMR, LLC

United States District Court, D. Massachusetts

September 1, 2017

STEVE COOGAN, Plaintiff,


          DONALD L. CABELL, U.S.M.J.

         Steve Coogan (“Coogan” or “the plaintiff”) worked for Fidelity Management & Research, LLC (“Fidelity”) for over 20 years before being terminated in 2013, at the age of 55. He alleges age discrimination and has brought suit against Fidelity and his former supervisors, Sean Burke (“Burke”) and Michael Luzzo (“Luzzo”) (collectively “the defendants”) pursuant to both M.G.L. c. 151B (Counts I, III and IV) and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 (Count II). The defendants move for summary judgment. (Dkt. No. 61). The plaintiff opposes the motion. (Dkt. No. 78). After careful consideration of the record, the parties' briefs and the information adduced at a hearing on the motion, it is respectfully recommended that the motion for summary judgment be ALLOWED.


         The plaintiff worked for Fidelity in various positions from 1989 until his termination in February 2013. Broadly speaking, things went well for him from 1989 through 2010, but proceeded precipitously downhill from 2010 to 2013.

         1. 1989 to 2010

         Fidelity hired the plaintiff in 1989 to work in its Internal Document Printing Services (“DPS”) section. (Statement of Undisputed Facts In Support of Defendants' Motion for Summary Judgment (“Defendants' SUF”), at ¶ 5). The plaintiff left Fidelity in 1994 but subsequently returned to DPS in 1995 and worked there until his termination on February 12, 2013. (Defendants' SUF, at ¶¶ 1, 5; Coogan's Statement of Undisputed Facts (“Plaintiff's SUF”), at ¶ 1).

         The plaintiff's responsibilities with DPS included “most of the enterprise printing that supports Fidelity's business units, an all-digital configuration that produces (among other things) presentations, bound booklets, brochures, flyers, name tags, training manuals and posters.” (Defendants' SUF, at ¶ 4).

         In 2008, when the plaintiff was 50, Fidelity promoted him to the position of “senior manager.” (Defendants' SUF, at ¶ 10; Plaintiff's SUF, at ¶ 2, 33). In that role, the plaintiff managed 10-20 direct reports, ensured that all print jobs were produced timely and according to customer specifications, and oversaw the mail room, quality control, and accounting for metrics and costs. (Defendants' SUF, at ¶¶ 10, 11; Plaintiff's SUF, at ¶ 34). Luzzo was the plaintiff's direct supervisor; he held bi-weekly meetings with the plaintiff, provided him with ongoing coaching, and counseled him on opportunities for performance improvement within his role as senior manager. (Defendants' SUF, at ¶¶ 12, 13).

         From 2008 through 2010, the plaintiff received numerous positive performance reviews, awards, and merit-based raises. (Plaintiff's SUF, at ¶¶ 1-44). In or around 2011, though, the plaintiff began to experience difficulties.

         2. 2011

         In 2011, the plaintiff was awarded for the first time a “project manager role.” (Defendants' SUF, at ¶ 17; Plaintiff's SUF, at ¶ 45). Among other things, the plaintiff was responsible for overseeing the successful implementation of a new software system Fidelity had purchased. (Defendants' SUF, at ¶ 17; Plaintiff's SUF, at ¶ 50). The software system was scheduled to be implemented and launched in full within two years; during that time the plaintiff and his team were responsible for meeting various implementation-related deadlines. (Defendants' SUF, at ¶ 20; Plaintiff's SUF, at ¶ 52).

         Unfortunately, the plaintiff and his team failed to meet several of these interim deadlines, which in turn set back the launch date of the software system. (Defendants' SUF, at ¶ 22; Plaintiff's SUF, at ¶ 56). Luzzo addressed these concerns with the plaintiff, and also counseled the plaintiff on training modules, proper training documentation, and timely completion of tasks. (Defendants' SUF, at ¶¶ 27, 30).

         At his 2011 mid-year performance review, Luzzo indicated among other things that the plaintiff was continuing to “lea[d]” the implementation of the software system, and that the team was “optimistic” about meeting an upcoming deadline despite being “behind target dates.” Luzzo also indicated that the plaintiff did not fully meet expectations on another particular project. The plaintiff disputes that this is an accurate portrayal of his performance in 2011, but admits that Luzzo was not discriminating against him based on his age, then 53. (Defendants' SUF, ¶¶ 33-34).

         At his 2011 year-end review, the plaintiff received an overall performance rating of “inconsistent, ” and Luzzo identified several areas where the plaintiff had failed to fully meet performance benchmarks. (Defendants' SUF, at ¶¶ 35-37, 39-42). These performance benchmarks included, among others, the “implementation of the DPS operational software, ” the ability to communicate effectively, and “DPS lean document processing implementation.” (Defendants' SUF, at Ex. 12B).

         3. 2012

         In 2012, the plaintiff received a poor mid-year performance review. More particularly, the plaintiff received a performance rating of “did not fully meet expectations” in several areas, including in the areas of “improving customer experience” and “delivering process excellence.” (Defendants' SUF, at ¶ 44). Luzzo also reduced the plaintiff's DPS-related tasks because the plaintiff was continuing to struggle with timely implementation of the new software system. Luzzo subsequently reassigned those tasks to another DPS employee. (Defendants' SUF, at ¶¶ 45-47).

         On or about May 24, 2012, Fidelity hired Burke as a “senior director.” (Defendants' SUF, at ¶ 55; Plaintiff's SUF, at ¶ 69). Burke was born in 1957 and is approximately 11 months older than the plaintiff. (Defendants' SUF, at ¶ 59; Plaintiff's SUF, at ¶ 74). Burke reported directly to Luzzo and supervised approximately 30 employees, including the plaintiff. (Defendants' SUF, at ¶ 55). As the plaintiff's supervisor, Burke was primarily responsible for evaluating the plaintiff's performance, and for providing performance related guidance and support. (Defendants' SUF, at ¶ 84).

         On October 31, 2012, Burke met with the plaintiff to discuss concerns he had with the plaintiff's performance. (Defendants' SUF, at ¶ 85). Burke identified a need for “drastic improvement” in several areas, including in the areas of “leadership project execution, ” “working well with others, ” and “communication.” (Defendants' SUF, at ¶ 87).

         According to the plaintiff, Burke, at various times during the year, made age-related remarks directly to the plaintiff or in the plaintiff's presence. First, at some point between May and October of 2012, Burke began to come into the office where Coogan and a colleague named Zarrella worked and, referring to the smell of the garbage room located in close proximity to the plaintiff's office, would say, “It smells like two old men in here.” (Defendants' SUF, at ¶¶ 192-93; Plaintiff's SUF, at ¶ 87). Second, Burke at some point during the summer of 2012 told the plaintiff that he thought the plaintiff's team was “old” and asked the plaintiff about the ages of the employees who directly reported to him, and how long each had worked at Fidelity. (Defendants' SUF, at ¶ 194; Plaintiff's SUF, at ¶ 78). Upon learning the ages of the plaintiff's staff, Burke allegedly responded that “we need to be younger.” (Defendants' SUF, at ¶ 194; Plaintiff's SUF, at ¶ 81). On another occasion, when Burke learned that a particular employee was thinking about leaving Fidelity, he said “we can't lose him, he's our youngest employee, ” and he subsequently gave the employee a “substantial off-cycle raise.” (Defendants' SUF, at ¶ 195; Plaintiff's SUF, at ¶ 88). Burke denies having made any of these comments. (Defendants' SUF, at Ex. 4).

         4. The December 2012 Final Written Warning

         In or around December 2012, Burke met with the plaintiff to discuss a recent customer complaint regarding an improperly sized document.[1] (Defendants' SUF, at ¶ 92). Although the plaintiff denied any knowledge of the matter, Burke and Luzzo issued the plaintiff a final written warning on December 12, 2012. (Defendants' SUF, at ¶¶ 92, 105; Plaintiff's SUF, at ¶ 110). The final written warning stated in part that “[Burke and the plaintiff] have discussed [the plaintiff's] overall performance on multiple occasions over the past three months, ” and the discussions “focused on [the plaintiff's] lack of follow-through, [the plaintiff's] inability to understand and solve complex business problems and an unwillingness to communicate problems and issues to [the plaintiff's] superiors.” (Defendants' SUF, at ¶ 108). The written warning also identified several incidents of misconduct where the plaintiff “instructed associates to ship inferior product to show (the business partner) it was wrong.” (Defendants' SUF, at ¶ 111).

         Burke placed the plaintiff on probation for 90 days. (Plaintiff's SUF, at ¶ 111). The plaintiff was subject to dismissal during the probationary period unless his job performance and any identified areas of concern improved. (Defendants' SUF, at ¶¶ 107, 116; Plaintiff's SUF, at ¶ 111). Burke continued to meet with the plaintiff during this time to discuss work performance issues and opportunities for improvement. (Defendants' SUF, at ¶ 127).

         On December 24, 2012, the plaintiff contacted a human resources employee to express his surprise at having received a final written warning. (Defendants' SUF, at ¶ 133). During this conversation, the plaintiff did not express any belief or concerns that he was being discriminated against on the basis of his age. (Id.).

         5. The December ...

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