United States District Court, S.D. Mississippi, Southern Division
RICHARD K. ROGERS PLAINTIFF
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  FOR SUMMARY JUDGMENT AND DISMISSING
PLAINTIFF'S CLAIM FOR DISPARATE-IMPACT
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is Defendant Medline Industries, Inc.'s Motion
 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  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.
Richard K. Rogers (“Rogers” or
“Plaintiff”) began his employment with Medline
Industries, Inc. (“Medline” or
“Defendant”) in 2002 as a salesperson. Compl. 
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.  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.  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
all facts in Rogers' favor, at the time of his
termination Rogers held the position of Acute Care Manager, a
specialty sales position. Compl.  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.  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.
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.  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.
 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.  at 7; Def.'s Mem.  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.  at 7; Def.'s Mem. 
at 4-5; Rogers Dep. [55-2] at 119.
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.
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.
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].
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. 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.” 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.
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.  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. 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. Briggs replied that he was “working
on that.” Id.
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.  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.
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.  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.
this conversation, Briggs e-mailed Halberg regarding the
meeting. 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]
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.  at 10-11.
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.
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.  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.
has now filed the instant Motion  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.  for Summ. J. at 1. Medline argues that
Rogers has failed to present direct evidence of age
discrimination, Def.'s Mem.  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.  at 23-25.
Response  asserts that he has presented both direct and
circumstantial evidence that Medline terminated him because
of his age. Pl's Resp. Mem.  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 , Medline reiterates that Rogers
has not rebutted its legitimate, nondiscriminatory reasons
for his termination. Def.'s Reply  at 5-12. Medline
also asserts that Rogers has abandoned his disparate-impact
claim. Id. at 12-13.
has submitted three Declarations as exhibits in support of
its Motion  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   ,
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.  Strike at 1; Pl.'s
Mot.  Strike at 1; Pl.'s Mot.  Strike at 1. The
Court previously issued an Order  Denying Plaintiff's
Motions   ; 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  for Summary Judgment.
Summary judgment standard
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