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Rogers v. Medline Industries, Inc.

United States District Court, S.D. Mississippi, Southern Division

January 18, 2019

RICHARD K. ROGERS PLAINTIFF
v.
MEDLINE INDUSTRIES, INC., AND JOHN DOES 1-5 DEFENDANTS

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT MEDLINE INDUSTRIES, INC.'S MOTION [55] FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFF'S CLAIM FOR DISPARATE-IMPACT DISCRIMINATION

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is Defendant Medline Industries, Inc.'s Motion [55] for Summary Judgment. Plaintiff Richard K. Rogers alleges Defendant discriminated against him based on his age when it terminated his employment. After due consideration of the record, Defendant's Motion, and relevant legal authority, the Court is of the opinion that Defendant's Motion [55] for Summary Judgment should be granted in part and denied in part. Defendant Medline Industries, Inc., is entitled to judgment as a matter of law as to the disparate-impact age discrimination claim asserted against it by Plaintiff Richard K. Rogers. Plaintiff's disparate-treatment claim should proceed.

         I. BACKGROUND

         A. Factual background

         Plaintiff Richard K. Rogers (“Rogers” or “Plaintiff”) began his employment with Medline Industries, Inc. (“Medline” or “Defendant”) in 2002 as a salesperson. Compl. [1] at 2. After Medline terminated Rogers in July of 2016, Plaintiff timely filed a Charge of Discrimination [1-1] with the Equal Employment Opportunity Commission (“EEOC”), alleging that Medline discriminated against him on the basis of his age. Compl. [1] at 2. The EEOC provided Rogers with a Notice of Right to Sue [1-2], and Rogers timely filed suit against Medline Industries, Inc. and John Does 1-10. Compl. [1] at 1. Rogers alleges that Medline unlawfully terminated him from employment because of his age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623. Id. at 4.

         Construing all facts in Rogers' favor, at the time of his termination Rogers held the position of Acute Care Manager, a specialty sales position. Compl. [1] at 2; Briggs Decl. [55-3] ¶ 6. Rogers worked in direct sales and managed client accounts. Id. Each year during Rogers' employment Medline set sales quotas for salespersons, which it calculated using the base revenue of the accounts assigned to the salesperson from the prior year plus a percentage growth expectation. Def.'s Mem. [56] at 4; see Rogers Dep. [55-2]. Medline also incentivized its salespersons with what it called a “STAR incentive plan” under which salespersons could be rewarded each year with a trip based upon their level of sales of certain Medline products. Id.

         Mark Taylor, who served as a Senior Vice President for Medline, hired Rogers in 2002. Taylor Decl. [55-9] ¶ 2. Until approximately 2013, Claude “Trey” Smith directly managed him. Pl.'s Resp. Mem. [70] at 5; Smith Dep. [69-2]. According to Taylor and Smith, while he was under their management Rogers met their expectations and was not the subject of any customer complaints, with the exception of one complaint that Smith attributed to a customer's last-minute ordering of a product. Id. at 6; Taylor Aff. [69-3] ¶¶ 6-7; Smith Depo. [69-2] at 14-16. Medline subsequently demoted both Taylor and Smith, Halberg Decl. [55-1] ¶¶ 4-5, and in 2013, assigned Andrew Briggs as Rogers' Division Manager, Pl.'s Resp. Mem. [70] at 7; Rogers Dep. [55-2] at 119. About this time, Medline also assigned Mark Gallarelli as Senior Vice President of Sales for the Southeast, replacing Taylor. Pl.'s Resp. Mem. [70] at 7; Def.'s Mem. [56] at 4-5. Until the end of Rogers' employment, Briggs served as his direct manager, and Gallarelli served as Briggs' immediate supervisor managing the entire Southeast region for Medline. Pl.'s Resp. Mem. [70] at 7; Def.'s Mem. [56] at 4-5; Rogers Dep. [55-2] at 119.

         At the time Briggs was appointed Division Manager in 2013, he reviewed the sales records of all salespersons under his management. Briggs Decl. [55-3] ¶¶ 17-18. He noted and discussed with Rogers his failure to meet his sales quota in 2012, id. ¶¶ 19-20, and then worked with Rogers to meet quota, id. ¶ 20. It is undisputed that Rogers never met Medline's established sales quotas from 2012 until the date of his termination in 2016. In 2012, Rogers achieved 88.8% of his sales quota. Ex. “A” [55-1] at 43-44. In 2013, he achieved 91.7% of his sales quota, and in 2014, he achieved 80.3% of his sales quota. Id. In 2015, the year prior to his termination, Rogers achieved 99.2% of his sales quota. Id.

         In 2013, soon after Gallarelli was assigned as the Senior Vice President for Sales, Rogers attended a promotional meeting at which Gallarelli was present. Rogers Dep. [55-2] at 198-200. As Rogers was walking into the meeting, Gallarelli remarked, “I didn't know you were 50 something years old, ” and added, “[y]ou don't really look that old; you're older than me.” Id. Medline had in place a procedure for reporting complaints of discrimination and a policy of instructing employees that they should report any incident of discrimination or harassment. Halberg Decl. [55-1]. Rogers had received a copy of Medline's policies and procedures for reporting discrimination during his employment with the company. Rogers Dep. [55-2] at 111-13. He did not complain about Gallarelli's comment, or of any other comment or conduct while employed by Medline. Id. at 114.

         In January 2016, Gallarelli sent an email to Jim Boyle, Medline's Senior Vice President for Acute Sales, Katie Halberg, Medline's Human Resources Director, and Briggs, noting that Rogers was not currently on a corrective action plan and that they were waiting for the 2015 numbers to be released to place him on one. Ex. “E” [69-5]; Halberg Decl. [55-2] ¶ 3. After Rogers did not meet his 2015 quota, on March 11, 2016, Medline presented Rogers with a Corrective Action Form, setting out a ninety-day plan “to assist [Rogers] in improving [his] performance . . . .” Ex. “S” [69-19].

         The corrective action plan, drafted by Briggs, indicated that Rogers failed to respond when in late 2015, Briggs asked him what his plan was to make quota for that year. Id. at 1. Briggs noted that Rogers had failed to achieve quota for the past five years, had only achieved STAR for two of those years, and had not met his month-to-date quotas for January or February 2016.[1] Id. Briggs also added that he had received a number of customer complaints that Rogers “lack[ed] product knowledge and [demonstrated an] unwillingness to ask the right questions, ” and did not have a “sense of urgency to handling problems when they ar[o]se.”[2] Id. According to Briggs, Rogers did not follow up, complete projects in a timely manner, attain goals, or actively engage in presented opportunities. Id. The plan set quota and STAR targets for Rogers to achieve and required him to complete, “without exception, ” weekly summaries and gain/loss updates, to receive zero customer complaints, and to reply to emails within twenty-four hours. Id. Rogers acknowledged that he received a copy of the plan and that it was clearly communicated to him. Id.

         Before he was placed on corrective action, Rogers had secured a prime vendor contract with Memorial Hospital of Gulfport, Mississippi, which would make Medline the Hospital's supplier for medical supplies. Def.'s Mem. [56] at 8. On March 17, 2016, Briggs sent an email to David Mimms, the Director of Materials Management for Memorial Hospital, which included an email chain to Rogers outlining the procedure Rogers should use throughout Memorial's prime vendor conversion process.[3] Ex. “D” [69-4]; Ex. “AA” [69-27]. Briggs indicated that he was committed to keeping Mimms “in the know” and added: “Please let me know anytime you feel that something can be improved upon and I will get right on it.” Ex. “AA” [69-27]. Mimms responded:

I have told [Rogers] not to give me the standard answer, I need him to work toward being my voice with Medline. I never got ‘no' from Hunter [Russum] he [sic] always said ‘I'll see what I can do'. And for the most part he came back with some sort of answer or compromise. I need that from [Rogers].

Id.[4] Briggs replied that he was “working on that.” Id.

         Although Rogers secured the prime vendor contract with Memorial Hospital at the beginning of 2016, he was unable to implement it by the expiration of the corrective action plan. Pl.'s Resp. Mem. [70] at 9. Briggs discussed with Katie Halberg, Medline's Human Resources Director, Rogers' failure to meet the corrective action plan's expectations. Ex. “I” [69-9] at 1. In an email to Gallarelli, Briggs explained that, given Rogers' performance under the plan and Rogers' father's health issues, Halberg recommended that they extend the plan. Id. Briggs noted that he had failed to document the meetings he had with Rogers regarding his performance. Id.

         On June 14, 2016, Medline extended the corrective action plan an additional sixty days under similar terms, requiring updates and zero customer complaints. Rogers' Dep. [55-2] at 177-78; Ex. “A” [55-1] at 53-54; Pl.'s Resp. Mem. [70] at 10. Subsequently, on June 29, approximately three months after Mimms first expressed concerns regarding Rogers' service, Briggs approached Mimms regarding his working relationship with Rogers. Mimms Decl. [55-10] ¶¶ 11-13; Mimms Decl. [69-4] ¶ 9. Mimms indicated that he felt that there was “room for improvement for [Rogers].” Mimms Decl. [69-4] ¶ 9. Specifically, Mimms “expressed concerns about Mr. Rogers' [sic] following up and following through with issues concerning implementation of the prime vendor agreement.” Mimms Decl. [55-10] ¶ 12; Mimms Decl. [69-4] ¶ 9 (indicating Mimms believed there was “room for improvement” regarding “follow-up and follow through”). Mimms, however, did not specifically request that Rogers be terminated as Memorial's sales representative on the prime vendor account. Mimms. Decl. [55-8] ¶ 12.

         Following this conversation, Briggs e-mailed Halberg regarding the meeting.[5] Ex. “A” [55-1] at 55. Briggs related that Rogers took a week to respond to requests for quotes, failed to provide quotes in the requested format, and lacked visibility. Id. Briggs indicated that the account with Memorial required a “responsive rep with good communication skills” to handle the breakdowns that Mimms had expressed to Briggs. Id. Briggs ended the e-mail indicating that he was “not sure where [to] go from here in terms of the length of time to keep [Rogers] employed.” Id.

         On June 28, 2016, Briggs set up one-on-one phone calls with his sales associates. Ex. “A” [55-1] at 57. On June 30, Briggs sent out a final schedule and reminder. Id. at 56. Briggs scheduled Rogers' call for 11:30 am on July 8, 2016. Id. On the scheduled date, Briggs e-mailed his sales representatives reminding them of the calls. Id. at 59. Eleven minutes after Rogers' scheduled date and call time, Briggs e-mailed Halberg indicating that Rogers was the only representative who did not respond to the invitation. Id. at 56. He stated: “I'm done and wanting to know what to do next for proceeding with termination.” Id.; Pl.'s Resp. Mem. [70] at 10-11.

         Medline terminated Rogers' employment effective July 31, 2016. Rogers Dep. [55-2] at 107; Ex. “U” [69-21]. The Termination Summary, drafted by Briggs, indicates that Rogers was terminated for substandard performance. Ex. “U” [69-21]. It states that multiple staff at Memorial Hospital voiced concerns and dissatisfaction with Rogers' performance and that Rogers failed to attend the one- on-one call with Briggs. Id. It concluded: “As a result of failure to meet the corrective action goals along with continued customer complaints and failure to meet deadlines, [Rogers'] employment with Medline Industries, Inc. will be terminated.” Id.

         B. Procedural background

         Plaintiff timely filed a Charge of Discrimination [1-1] with the Equal Employment Opportunity Commission (“EEOC”) alleging that Medline discriminated against him on the basis of his age when it terminated him. Compl. [1] at 2. After the EEOC provided Rogers with a Notice of Right to Sue [1-2], he filed suit against Medline Industries, Inc. and John Does 1-10 raising disparate-treatment and disparate-impact claims of age discrimination in violation of the ADEA. Id. at 1.

         Medline has now filed the instant Motion [55] for Summary Judgment asserting that there are no disputed issues of material fact and that it is entitled to summary judgment on Rogers' claims. Mot. [55] for Summ. J. at 1. Medline argues that Rogers has failed to present direct evidence of age discrimination, Def.'s Mem. [56] at 13-14, and that Rogers cannot demonstrate that he was terminated but for his age, id. at 1-2. According to Medline, Rogers also cannot show that its reasons for termination were pretextual, and he failed to exhaust the requisite administrative remedies regarding any claims of disparate impact. Id. In the alternative, Rogers cannot meet his burden to prove a policy or practice of Medline had a disproportionate impact on members of his protected class. Id.; Def.'s Mem. [56] at 23-25.

         Rogers' Response [69] asserts that he has presented both direct and circumstantial evidence that Medline terminated him because of his age. Pl's Resp. Mem. [70] at 35. Plaintiff asserts that the comment by Gallarelli serves as direct evidence of discrimination, and that Medline's proffered nondiscriminatory reasons for his termination are mere pretext which lack support. Id. at 15-18. Rogers points to evidence that Medline requested feedback regarding Rogers' performance, that Rogers had no complaints or history of unsatisfactory performance before 2014, and that the sole cited customer complaint was solicited. Id. at 18-28. In its Reply [74], Medline reiterates that Rogers has not rebutted its legitimate, nondiscriminatory reasons for his termination. Def.'s Reply [74] at 5-12. Medline also asserts that Rogers has abandoned his disparate-impact claim. Id. at 12-13.

         Defendant has submitted three Declarations as exhibits in support of its Motion [55] for Summary Judgment: (1) Exhibit “A” [55-1], Decl. of Katie Halberg; (2) Exhibit “C” [55-3], Decl. of Andrew Briggs; and (3) Exhibit “E” [55-5], Decl. of Mark Gallarelli. Rogers filed three separate, two-page Motions [66] [67] [68], seeking to strike portions of each Declaration [55-1] [55-3] [55-5], and arguing that they amounted to inadmissible hearsay or legal conclusions which are not competent summary judgment evidence. Pl.'s Mot. [66] Strike at 1; Pl.'s Mot. [67] Strike at 1; Pl.'s Mot. [68] Strike at 1. The Court previously issued an Order [47] Denying Plaintiff's Motions [66] [67] [68]; however, it will not consider any portions of the Declarations that cannot be presented in a form admissible in evidence, nor will it consider any other evidence that is plainly inadmissible, in resolving Defendant's Motion [55] for Summary Judgment.

         II. DISCUSSION

         A. Summary judgment standard

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). If the movant carries this burden, “the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine ...


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