Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—2d Cir.: Fired Trader Joe’s regional VP fails to revive sex bias claims, (Jan 6, 2025)

By Marjorie Johnson, J.D.

Company officials concluded that her choice to proceed with her vacation to Mexico, despite a directive to limit travel during the early days of the pandemic, showed a failure of leadership.

A former Trader Joe’s regional VP, terminated ostensibly because she received a written warning for failing to timely detect embezzlement and subsequently took a planned vacation to Mexico despite her supervisor’s pandemic-related directive to limit travel, failed to revive her Title VII and state-law claims of sex discrimination. In addition to failing to demonstrate that a male colleague was similarly situated, she failed to present any evidence suggesting a company president’s decision to terminate her was based even in part on animus toward her sex, the Second Circuit court explained in a nonprecedential opinion affirming the district court’s grant of summary judgment in favor of the grocery retail chain (Flanagan v. Trader Joe’s East, Inc., No. 24-675 (2d Cir. Jan. 2, 2025, nonprecedential)).

VPs told to limit travel. Trader Joe’s fired the employee after she decided to leave the country for a scheduled vacation in Cancun, Mexico on March 16, 2020—just three days after an executive VP who had become her interim supervisor had directed all regional VPs during a conference call to “minimize travel” in light of the escalating COVID-19 pandemic. The employee, who was responsible for overseeing Trader Joe’s stores in Connecticut and New York, herself referred to this period in mid-March 2020 as “Coronavirus craziness.” During that time, the grocery store chain’s employees were considered “essential workers,” and their stores faced substantially increased customer demand and staff unrest as the situation was “escalating” and “even changing by the day.

Eleventh-hour email. On the night before her departure, the employee emailed the executive VP as a “courtesy” to “let [him] know that [she was] away [the] next week” for a vacation that had been approved “long before the virus outbreak.” While acknowledging that the timing was “not ideal,” she stated that she had decided “to move forward with the trip” after being “out voted” by her family. The executive VP voiced no objection to the trip in his response but shared her email with a company president, who, after also conferring with the general counsel and the VP of HR, decided to terminate the employee. The executive VP, the president, and the VP of HR all testified in their depositions that they believed her eleventh-hour email and choice to proceed with her vacation demonstrated a failure of leadership and judgment at a critical time for the company.

Previous written warning. Her decision to proceed with her vacation came on the heels of a written warning she received, just three months earlier, for failing to notice that an assistant manager in one of her stores had embezzled more than $75,000 over an 18-month period. In that warning, her then-supervisor wrote that “it is difficult to understand how [the employee] missed this situation for 18 months” and that she had “failed to use good situational leadership to help a newly promoted [manager] learn how to run her store effectively.” In her January 2020 annual performance review, the supervisor identified “a few large failures that gave [him] concern” and explained that her lack of “situational leadership was the root cause of her mistakes.”

Prior permission didn’t suggest pretext. In affirming summary judgment against her, the Second Circuit found that the employee failed to create a triable issue that the employer’s proffered reasons for her termination were pretext for sex discrimination or that sex discrimination was otherwise a motivating factor in her termination. Her focus on the fact that she had previously received permission to take the vacation overlooked the change in circumstances caused by the COVID-19 pandemic, which made workers at grocery stores like Trader Joe’s “essential workers” and prompted the executive VP to issue his March 13 directive to minimize travel. Moreover, even if his response to her March 15 email could be construed as an endorsement of her travel, she failed to present evidence to permit a jury to find that the president’s decision to terminate her “was based even in part on animus toward her sex,” concluded the Second Circuit.

Purported comparator not similar. The appeals court was also unpersuaded by her argument that pretext could be inferred since a male regional VP was not terminated despite also taking a vacation in March 2020. To show pretext, she needed to present evidence that the male colleague was “similarly situated in all material respects,” which included showing that he was subject to the same workplace standards and engaged in misconduct that was of comparable seriousness. In this analysis, a court must examine “the context and surrounding circumstances in which those acts are evaluated.”

Here, the employee failed to make the showing. Among other distinctions, the male colleague traveled domestically (not internationally) and did so before the World Health Organization had declared COVID-19 a pandemic on March 11, 2020, and before the executive VP’s conference call two days later directing regional VPs to minimize travel. Furthermore, there was no evidence suggesting that her male colleague had received a written warning or a negative performance review in the months immediately preceding his travel. Accordingly, on this record, the district court did not err in granting the employer’s motion for summary judgment on her sex discrimination claims.

The case is No. 24-675.

Attorneys: Meaghan C. Kirby (Garrison, Levin-Epstein, Fitzgerald & Pirrotti) for Tracy Flanagan. Anjali Sudhir Dalal (Wiggin and Dana) for Trader Joe's East, Inc.

Companies: Trader Joe's East, Inc.

Cases: SexDiscrimination Discrimination Discharge StateLawClaims ConnecticutNews NewYorkNews VermontNews