Summary
denying employer's motion for summary judgment even though employer presented documented evidence of plaintiff's alleged poor performance, because "there are genuine issues of material fact as to whether [plaintiff] was satisfying the expectations of his employer at the time [of the adverse employment action]"
Summary of this case from OBIKE v. APPLIED EPI, INC.Opinion
Civ. No. 02-1688 (RHK/AJB)
May 27, 2003
Dennis P. Pelowski, Pelowski Law Offices, Minneapolis, Minnesota, and Steven G. Heikens, Heikens Law Offices, Minneapolis, Minnesota, for Plaintiff.
Marko J. Mrkonich, Jacques T. Cowan, and Stephanie D. Sarantopoulos, Littler Mendelson, P.C., Minneapolis, Minnesota, for Defendant.
MEMORANDUM OPINION AND ORDER
Introduction
Plaintiff Roger D. Evenson worked for Maytag continuously for over thirty-two years, beginning in 1970. In April 1999, the Appliances Sales Company division (hereinafter "Appliances Sales") in which Evenson worked as a "regional manager" underwent a reorganization. Evenson, then fifty-one years old, became a "zone operations manager" in Minneapolis, reporting to a thirty-three year old "regional manager" in Chicago for whose position Evenson had applied. In this age discrimination lawsuit, Evenson contends that his regional manager, motivated by age-based animus, placed Evenson on a probationary "performance improvement plan" ("PIP") less than three months into his new position and kept him on that probationary status for approximately fifteen months. Evenson further alleges that he was not considered for several management vacancies within Appliance Sales for which he was qualified in retaliation for having made an age discrimination complaint against his regional manager. Before the Court is Defendant's Motion for Summary Judgment. For the reasons set forth below, the Court will deny the motion.
Background
Evenson began working at Maytag in 1970 as a trainee in the service department. Over the next three decades, Evenson moved from service to sales and, by March 1998, had become the regional manager for Appliances Sales in the Minneapolis market. In December 1998, Maytag rated his performance as "clearly exceeding" expectations.
In early 1999, Maytag restructured its Appliances Sales division, reducing the number of regional managers from twenty-two to nine and creating a new managerial layer called the "zone operations manager." Evenson applied but was not selected to be a regional manager under the new structure. Rather, he remained in Minneapolis as a "zone operations manager." His salary and benefits remained the same as they had been under the old corporate structure. Reporting to Evenson were a number of "district managers" who constituted his "team." As the "zone operations manager" in Minneapolis, Evenson reported to Greg Hewitt, the regional manager based in Chicago. Hewitt was in his early thirties in April 1999; Evenson was fifty-two years old.
Approximately eleven weeks after Evenson began working as a zone operations manager, Hewitt placed him on a PIP, citing the following issues in his performance:
* * Not meeting [zone operations manager] expectations
* * Little coaching, motivating, and leading of team
* * Lack of strategic business insight (planning)
* * Low customer involvement
* * Lack of passion for growth
* * Lack of focus on new customer development
* * Problem vs. solution oriented
* * Not exceeding Zone and personal [annual operating plan]
* * Does not demonstrate energy and work ethic
(Pelowski Aff. Ex. 1.) The PIP stated that Evenson had to "improve immediately" in these areas and that, at the end of sixty days, Maytag would evaluate Evenson's performance. (Id.) The PIP identified the following "Criteria for Success":
* * Travel 3 days+/week with [District Managers] minimum
* * Zone and Personal [annual operating plan] attainment
* * [Zone operations manager] travel planning guide and [District Manager] travel summary
* * Employee/customer understanding of strategies
* * Demonstrate Audacious Leadership (personal and team)
* * Complete [strategic business plans] for own customers and top 5 per district by 7/31
It appears that "Audacious Leadership" was a leadership model introduced to the Chicago regional team in early April 1999. (Pelowski Aff. Ex. 3 at Bates No. 0412; see also Sarantopoulos Aff. Ex. 50 at Bates Nos. 0081-84.)
(Id.) The PIP reflected an expectation that, in the future, Evenson would exceed the goals of his zone and individual annual operating plans month after month, openly demonstrate "Audacious Leadership," execute strategic business plans with his accounts and district managers, successfully find five potential customers, and increase "reciprocal proactive communication with [District Managers] via travel, e-mail, and voice mail." (Id.) Evenson avers that, in the sixty days following the receipt of his June 1999 PIP, Hewitt never met with him to discuss either his "deficiencies" or progress. (Am. Evenson Aff. ¶ 3.) Evenson also avers that Hewitt said that Maytag was using the PIP because "the new zone concept was off to a less successful start than Maytag had expected." (Id.)
Hewitt extended Evenson's PIP status for an additional sixty days, to the end of October 1999. (See Pelowski Aff. Ex. 3 at Bates No. 0411.) Hewitt subsequently prepared a six-page memorandum to Evenson regarding his performance. (Id. at Bates Nos. 0411-16.) The memo stated that Evenson's performance had not improved to a satisfactory level and discussed, for each "future state" goal listed on the June PIP, how Evenson had failed to meet that goal. (Id.) Hewitt concluded:
It is unclear when Hewitt wrote this document. The first page is dated October 8, 1999, but subsequent pages are dated November 12, 1999. It is also unclear when Hewitt gave this memorandum to Evenson. In its response to the EEOC charge, Maytag asserted that Evenson received the memo on "December 3, 1999, due to Mr. Evenson's absence, other business and vacations." (Pelowski Aff. Ex. 21 at Bates No. FOIA 0102.)
We are now at the end of 120 days since the start of the Performance Improvement Plan. Your performance is not satisfactory in a number of areas. As we identified in April, our business has changed and our expectation for leadership in this new business climate has changed. As you have been told, operating the business as we did in the past is not available to us.
Going forward you need to satisfactorily and immediately meet the following expectations:
1. You need to work with financial issues with your customers and teach the [district managers] how to develop strategic business plans with customers. (Execute [strategic business plans] with customers). Each of your customers and your [district managers'] customers should have a [strategic business plan] in place by 1/1/2000.
2. Meet (and hopefully) exceed individual [annual operating plan] and Zone Annual Operating Plan goal.
3. Communicate effectively and often via voice mail, e-mail with our office to let us know current status of sales initiatives, [district manager] issues, etc. Responding to questions is not sufficient communication. Likewise, communicate often with your team.
4. Sign up one new customer per month.
5. Conduct effective meetings with [district managers] and customers.
6. Practice the elements of Audacious Leadership in your day to day interaction with my team, your customers, and your team.
7. Demonstrate leadership competencies (attached).
Roger, I will continue to work with you on these areas and will arrange for extra training on areas that you request. However, it is up to you to decide to make the significant efforts that are required in order to improve your performance to a satisfactory level. If you do not show immediate and substantial improvement with the above areas, your employment will be terminated.
(Id. at Bates Nos. 0415-16 (emphasis in original).)
In December 1999, Evenson received an Employee Contribution Review ("ECR") for the year. Hewitt wrote a memorandum documenting his meeting in Minneapolis with Evenson and Greg Heyer, a human resources consultant for Maytag, to discuss Evenson's ECR. (Pelowski Aff. Ex. 3 at Bates No. FOIA 0127-28.) Evenson received an overall rating of "PM," indicating that Evenson was "partially [meeting] requirements/expectations." (Pelowski Aff. Ex. 3 at Bates No. 0410.) Evenson refused to sign the ECR. (Id.) Hewitt's memo reflected that Evenson was upset to learn that he would not receive a merit salary increase, bonus, or stock options that year. (Id. at FOIA 0127; see also Pelowski Aff. Ex. 20 at 5 (narrative statement for EEOC charge).) The memo also indicated that Evenson had negotiated some modifications to the seven expectations set out in the October/November memo. (Pelowski Aff. Ex. 3 at FOIA 0128.) Hewitt's memo did not set a date by which Evenson had to fulfill these expectations, nor did it specify when Evenson's performance would be reviewed again.
There were five possible performance ratings on the ECR: Exceptional (EX); Exceeds Requirements/Expectations (ER); Fully Meets Requirements/Expectations (FM); Partially Meets Requirements/Expectations (PM); and Does Not Meet Minimum Requirements/Expectations (DN). (Pelowski Aff. Ex. 3 at Bates No. 0410.)
The record contains two versions of the ECR. One was signed by Hewitt on December 3, 1999, and references the memo dated October 8, 1999. This ECR also bears a note that the employee refused to sign it. The second, signed by Hewitt on January 31, 2000, references "attachments" generally, and bears the following note: "Employee agreed with content but would not sign. Employee did not agree with `PM' rating." (Pelowski Aff. Ex. 18 at Bates No. 0330 (emphasis in original).)
Thereafter, Evenson consulted an attorney. On December 30, 1999, Evenson's lawyers sent a letter to Hewitt regarding "the constant age discrimination and hostile environment that you and others have created, in particular your unwarranted attacks on Mr. Evenson's performance directed against him because of his age." (Pelowski Aff. Ex. 19 at 1 of 5.)
On May 31, 2000, Evenson filed a charge of age discrimination with the Minnesota Department of Human Rights ("MDHR"), asking that the charge be cross-filed with the EEOC. (Pelowski Aff. Ex. 20.) The charge asserted both age discrimination (arising from negative performance reviews and a hostile work environment) and retaliation. (Id.) With respect to retaliation, Evenson asserted that Hewitt had berated and humiliated him at sales meetings in front of peers and that Maytag had threatened to withdraw the severance package it had offered him if he filed an administrative charge. (Id. at 5 (narrative statement for charge).)
Effective July 31, 2000, the Appliances Sales division went through another restructuring. Appliances Sales moved from having nine regional offices to having four "customer support centers." (Sarantopolous Aff. Ex. 68 at Bates No. FOIA 0421.) Each "customer support center" was to have two managers, one for national accounts and one for retail sales. (Id. at Bates No. FOIA 0422.) Maytag eliminated the "zone operations manager" position, creating a "flatter" organizational structure. (Id. at Bates Nos. FOIA 0422-23.) Virtually all field sales personnel under the previous structure received an assignment in the new structure. (Id. at Bates No. FOIA 0423.) As a result of the July 2000 restructuring, Evenson became a "district manager" for national accounts, assigned to Minneapolis. His salary was adjusted downward. (See Evenson Dep. at 283.) Hewitt also was reassigned and no longer supervised Evenson. (Id.)
Evenson avers that, by this job change, Maytag reduced his income by more than $35,000. (Am. Evenson Aff. ¶ 2.) He further characterizes the National Accounts District Manager position as an "entry level sales position." (Id.)
Sometime after the end of July 2000, however, Hewitt prepared a memo summarizing Evenson's "progress on the ongoing Performance Improvement Plan as Zone Operations Manager at the end of July." (Pelowski Aff. Ex. 32.) The memo noted that Evenson had made progress in several areas discussed on his PIP, but still was not meeting expectations in (1) consistently practicing the elements of Audacious Leadership in his day-to-day interactions, (2) consistently meeting "Leadership Competencies" such as communicating at least three times per week with Hewitt, (3) initiating meetings with National Account leaders and providing leadership to national account district managers on strategy development, and (4) coordinating training with district managers. (Id.)
Heyer wrote a memorandum to Evenson dated August 23, 2000, that responded to a letter Evenson had written regarding a May 15 developmental plan meeting in Minnesota. (Sarantopolous Aff. Ex. 69.) One purpose of Heyer's August 23 memo was "to outline expectations moving forward as you transition into your new role as National Accounts District Manager." (Id. at Bates No. 0421.) Heyer stated that, because the district manager position was "a new role with different accountabilities," Evenson was being removed from his PIP effective immediately. (Id.)
In October 2000, Evenson filed an amended charge with the MDHR, alleging age discrimination and retaliation arising from the fact that he had been demoted to a "district manager" position (which Evenson characterizes as essentially an entry level position) and experienced a 25% reduction in pay. (Pelowski Aff. Ex. 23; see also Evenson Dep. at 294.) Evenson spoke to James Hogan in Maytag's Human Resources Department to ask why he had been reassigned in the 2000 reorganization. Hogan responded, after a short discussion, that Evenson was "lucky to have a job." (Evenson Dep. at 297.)
For the period May 1 to December 31, 2001, Evenson received an ECR rating his performance as "fully meets requirements/expectations." (Sarantopolous Aff. Ex. 74 at Bates No. 0312.) His supervisor made several positive comments regarding Evenson's contributions to Region meetings and noted his progress in achieving sales goals. (Id.)
Despite further restructuring in Appliances Sales in June 2001 and January 2002, Evenson stayed in essentially the same job. In June 2001, Maytag returned to a structure of 20 or 21 regional managers, similar to the structure in place at the start of 1999. (Evenson Dep. at 316.) Although Minneapolis once again was given a regional manager, and although Evenson expressed interest in the position, Evenson was not selected. (Evenson Dep. at 316-17.) Evenson commenced this action against Maytag on July 24, 2002. In January 2003, after reaching age 55, Evenson retired. At that time, he was earning an annual salary of $73,000. (Evenson Dep. at 350.)
Analysis
I. Standard of Decision
Summary judgment is proper if, drawing all reasonable inferences favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. See Celotex, 477 U.S. at 322; Mems v. City of St. Paul, Dep't of Fire Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. See Graves v. Arkansas Dep't of Fin. Admin., 229 F.3d 721, 723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir. 1997). The nonmoving party may not rest on mere allegations or denials, but must show the existence of specific facts that create a genuine issue for trial. See Anderson, 477 U.S. at 256; Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
Evenson has asserted claims of age discrimination and retaliation. The retaliation claim arises no earlier than January 2, 2000, when Maytag received a demand letter from Evenson's attorneys. As for Evenson's claim of age discrimination, it appears that such claim arises from certain adverse employment actions that Maytag took against Evenson in 1999.
In his brief opposing summary judgment, Evenson asserted that his decision to retire in January 2003 was a constructive discharge brought about by Maytag's "intolerable" treatment of him. A "constructive discharge" claim is not pleaded in Evenson's complaint and has not been presented to the MHRA or the EEOC. Evenson's counsel acknowledged that he would need to "amend" the Complaint, and stated that he would seek leave of the Court to do so. To date, however, no such motion has been filed. Given the pretrial scheduling order that, inter alia, sets a trial ready date of July 1, 2003, and in light of the record before the Court, the Court is unlikely to grant a motion to supplement the Complaint.
Evenson acknowledges that he cannot seek a remedy under the MHRA for acts occurring prior to May 31, 1999, and cannot seek a remedy under the ADEA for acts occurring prior to August 4, 1999.
II. Age Discrimination
The federal Age Discrimination in Employment Act ("ADEA") and the Minnesota Human Rights Act ("MHRA") both forbid an employer from taking adverse employment actions against an employee because of his or her age. 29 U.S.C. § 623(a)(1) (ADEA) (barring an employer from discriminating against an individual "with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age"); Minn. Stat. § 363.03, subd. 1(2)(c) (MHRA) (providing that an employer shall not "discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment" because of age). To establish a claim of intentional age discrimination, a plaintiff may present direct evidence of such discrimination or may prove his claim through circumstantial evidence. See Mayer v. Nextel West Corp., 318 F.3d 803, 806 (8th Cir. 2003). Where a plaintiff presents direct evidence that age played a motivating part in the defendant's employment decision, the defendant must then convince the trier of fact that, more likely than not, it would have made the same decision absent consideration of the plaintiff's age. See EEOC v. Liberal R-II Sch. Dist., 314 F.3d 920, 922 (8th Cir. 2002) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989)). Where the plaintiff presents only circumstantial evidence of discrimination, the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-04 (1973), applies. Evenson contends that he has direct evidence of age discrimination, consisting of statements made by both Hewitt and Heyer.
A. Direct Evidence
"The Supreme Court has defined direct evidence in the negative by stating that it excludes `stray remarks in the workplace,' `statements by nondecisionmakers,' and `statements by decisionmakers unrelated to the decisional process itself.'" Liberal R-II Sch. Dist., 314 F.3d at 923 (quoting Price Waterhouse, 490 U.S. at 277.).
This circuit has stated that "direct evidence may include evidence of actions or remarks of the employer that reflect a discriminatory attitude." . . . In addition, "[c]omments which demonstrate a `discriminatory animus in the decisional process' . . . or those uttered by individuals closely involved in employment decisions may constitute direct evidence within the meaning of Price Waterhouse." . . . As we recently stated, "[t]he direct evidence required to shift the burden of proof is evidence of conduct or statements by persons involved in making the employment decision directly manifesting a discriminatory attitude, of a sufficient quantum and gravity that would allow the factfinder to conclude that attitude more likely than not was a motivating factor in the employment decision." . . . Finally the [plaintiff] "must present evidence showing a specific link between the discriminatory animus and the challenged decision."
Id. (internal citations omitted).
Hewitt and Heyer, the speakers Evenson has identified, are the "decisionmakers" vis-a-vis the challenged employment actions. (See Hewitt Dep. at 121.) Hewitt prepared and/or signed both the June 1999 PIP and the December 1999 ECR that described Evenson's performance as "partially" meeting expectations and requirements. Furthermore, both Hewitt and Heyer were involved in Evenson's performance review, specifically the December 1999 meeting at which they gave Evenson his ECR and told him that his probationary status would continue indefinitely into 2000. With respect to statements made by these individuals, Evenson has identified the following exchanges as evidence of a discriminatory animus based on age:
In April 1999, Hewitt, Heyer, and Evenson were returning from a meeting in Duluth with the Maytag representative there who was in his mid-twenties. Hewitt, Heyer, and Evenson were proceeding to Sioux City, Iowa, where another Maytag representative named David Vovos worked. On the trip, Hewitt asked Evenson several times how old Vovos was and when he was going to retire. Evenson told Hewitt that Vovos was in his late fifties and said that he had no idea when Vovos intended to retire. (Evenson Dep. at 159-60.)
Hewitt, Heyer, and Evenson arrived in Sioux City and met Vovos for a two- or three-hour drive to Nebraska. The conversation in the car turned to laptop computers. Vovos indicated that he needed further training on the computer, and Heyer said he would look into it. In the course of that conversation, Heyer referred to another Maytag district manager — Jerry Klister — as a "dinosaur with a computer" (Id. at 165-67.) Klister was in his late fifties or early sixties. (Id. at 170.)
Later during the same car trip to Nebraska, Hewitt was discussing playing handball. With respect to playing a fellow Maytag employee named Jerry Pribanic, Hewitt made a statement to the effect that he could beat Pribanic because Pribanic was "an old guy." At the time, Pribanic was fifty-three. (Id. at 166-67.)
At a retirement party in April 1999 for two employees in the Minneapolis region, Heyer commented from the podium about stories that others had shared concerning an honoree who had forty years of service at Maytag, stating that "all of these stories happened before I was born." (Id. at 174.)
At a region meeting in Minneapolis in April 1999, Heyer identified the need for district managers to complete strategic business plans for the top five customers in each district. (Id. at 174.) Evenson raised concerns with Heyer about the amount of time required to complete the plans and questioned whether it was not more important to devote energy to meeting quota. (Id. at 176-77.) Two days later, Hewitt called Evenson and told him, "You old guys have got to change your ways." (Id. at 177.)
In June 1999, Hewitt, Evenson, and a district manager were traveling together in a car after visiting customers in Eau Claire. The conversation turned to an imminent change at one of the stores visited; the present buyer was retiring and would be replaced by a younger buyer. Hewitt made a statement to the effect of, "Good, I like working with younger buyers." (Id. at 206.)
Maytag argues that these statements are simply "stray comments" that do not rise to the level of direct evidence. The Court concludes, however, that a reasonable jury could find that the above statements evidence a discriminatory attitude toward older individuals. Contrary to Maytag's assertion that none of the alleged comments concerned Evenson directly, Evenson has presented evidence that Hewitt telephoned him regarding his opposition to completing strategic business plans and said, "You old guys have got to change your ways." The employee performance documents that followed the June PIP, including the December 1999 ECR, referenced strategic business plans as a problem area in Evenson's performance.
Viewing the record in the light most favorable to Evenson, it appears that a jury could consider Evenson's ADEA claim under a "mixed motive" framework. This determination does not end the Court's analysis, however. The Minnesota Supreme Court has held that an MHRA claim is not subject to analysis under the Price Waterhouse model; rather, courts must apply the McDonnell Douglas burden-shifting framework to the Minnesota claims. Anderson v. Hunter, Keith, Marshall Co., 417 N.W.2d 619, 624-27 (Minn. 1988). Thus, the Court must also evaluate Evenson's allegations of age discrimination under McDonnell Douglas.
B. Analysis under McDonnell Douglas
McDonnell Douglas sets out a three-part burden-shifting framework for analyzing employment discrimination claims. First, the plaintiff must establish a prima facie case. Although the requirements of the prima facie case vary depending on individual circumstances, a plaintiff is generally required to show that (1) he was a member of the protected class — i.e., over the age of forty; (2) the employer took some type of adverse employment action against him; (3) he was performing his job well enough to rule out the possibility that he suffered adverse employment consequences as a result of inadequate job performance; and (4) the employer did not take such action against nonmembers of the protected class. Zelewski v. American Federal Sav. Bank, 811 F. Supp. 456, 461-62 (D.Minn. 1993) (Doty, J.); Mayer, 318 F.3d at 807; see also Hannoon v. Fawn Eng'g Corp., 324 F.3d 1041, 1046 (8th Cir. 2003) (Title VII prima facie case).
Once the plaintiff establishes a prima facie case, the defendant "must meet a burden of production in the second step to articulate a legitimate non-discriminatory reason for the adverse employment action." Hannoon, 324 F.3d at 1046. Finally, if the defendant fulfills this second step, the burden returns to the plaintiff to establish that the defendant's reason is a mere pretext for discrimination. Id. "[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
An "adverse employment action is that which materially alters the terms or conditions of the plaintiff's employment." Erenberg v. Methodist Hosp., 240 F. Supp.2d 1022, 1032 (D.Minn. 2003) (internal quotation marks omitted). Evenson identifies the adverse employment actions Maytag took against him as the following: (1) being placed on a probationary PIP in June 1999 that imposed short term performance goals for him to meet; (2) two extensions of that probationary PIP in 1999; (3) denial of a merit pay increase, bonus and stock options in December 1999; and (4) having the probationary PIP extended indefinitely into 2000 with additional performance goals. (Pl.'s Mem. Opp'n to Mot. for Summ. J. at 2, n. 1.)
Maytag contends that it is entitled to summary judgment because Evenson cannot establish an essential element of his prima facie case — namely, that he was meeting Maytag's legitimate performance expectations. Maytag focuses on Hewitt's testimony describing his concerns about Evenson's performance and argues that, "[g]iven Hewitt's direct testimony, Evenson cannot demonstrate that his job performance met his employer's legitimate expectations." (Def.'s Reply Mem. at 6.) The Court disagrees, finding the case on which Maytag relies, Ziegler v. Beverly Enterprises-Minnesota, Inc., 133 F.3d 671 (8th Cir. 1998), distinguishable.
In Ziegler, two separate supervisors had noted difficulties in the plaintiff's leadership and interpersonal skills as early as nine years before she was terminated. 133 F.3d at 676. Those difficulties resulted in negative performance evaluations beginning approximately three years before her termination. Id. The plaintiff's first supervisor had been documenting these deficiencies as a growing concern for years, a view reinforced by "employee-attitude" surveys from those reporting to the plaintiff. Id. Thus, in Ziegler, the performance concerns pre-dated any change in supervisors and were substantiated by documentation received from the plaintiff's subordinates over the course of several years.
In the present case, the sharply negative criticism of Evenson's performance comes from the one Maytag employee whose testimony has been presented to the Court in support of summary judgment. According to Maytag, Hewitt was concerned about a number of aspects of Evenson's performance. After some store visits in Evenson's zone, Hewitt was unhappy about "products . . . not being displayed properly, products that we were trying to emphasize were not being executed." (Hewitt Dep. at 149.) Yet, Hewitt could not recall having any discussions with Evenson in which he directed criticism at Evenson for such marketing display presentations. (Id.) Hewitt certainly did not reference such concerns in either the June PIP or the October/November 1999 memorandum that Evenson was given during his December 1999 performance evaluation.
Maytag further notes that Hewitt criticized both the quantity and quality of Evenson's sales calls. With respect to quality, Hewitt testified, "[M]y estimation was the quality of the interactions was not value-added enough, impactful enough for either the customer and/or the employee." (Id. at 93.) Hewitt's deposition establishes, however, that his qualitative assessments were based solely on his presence at some unknown fraction of the sales calls Evenson took part in. (Id.) Maytag has not substantiated the number of calls Hewitt attended with Evenson, and has not shown that such a fraction was sufficient to permit a meaningful evaluation. As for the volume of sales calls that Evenson participated in, Maytag has presented no evidence of quantitative guidelines or goals that substantiate Evenson's failure to meet Hewitt's alleged expectations. (See Hogan Dep. at 17 (information Human Resources received about quantitative goals that Evenson allegedly was not meeting came orally from Hewitt or Heyer and was not confirmed).) Neither the "Criteria for Success" in the June PIP nor the October/November 1999 memo identifies a number of sales calls per week or month that would constitute adequate performance.
Finally, the heart of Maytag's argument is that the "qualitative components of [Evenson's] leadership were not to what [Hewitt] expected." (Hewitt Dep. at 128.) Hewitt testified that it was important for him to determine how much customer satisfaction there was in a zone in order to measure the qualitative contributions of a zone manager. (Id. at 126.) He further testified that it was important to assess the development of district managers — i.e., how well the district managers were doing in terms of running their business — in evaluating the zone operations manager's qualitative contribution. (Id. at 125-26.)
Hewitt also testified about what Heyer had said were his [i.e., Heyer's] concerns about Evenson's performance. (Hewitt Dep. at 135-36.) Such testimony is inadmissible hearsay that this Court cannot consider in ruling on summary judgment.
With respect to customer satisfaction, there is no admissible evidence establishing that Hewitt received more than a solitary customer complaint from Evenson's zone. (See id. at 154.) As for district manager performance, Evenson has presented evidence regarding his district managers' sales performance that gives rise to a genuine issue of material fact as to their success in "running their business." Evenson has also presented evidence from subordinates who testified that they liked working under him. To the extent Hewitt complained that Evenson did not "invest enough time with his team" by not traveling enough with district managers in their territories (id. at 83), this criticism is not adequately substantiated in the record. Hewitt testified that he personally expected a zone manager to travel three to four days a week (id. at 81), but there is no evidence that Maytag had any objective policy or standard pertaining to the zone managers' travels with their district managers. (Id.)
In short, there are genuine issues of material fact as to whether Evenson was satisfying the expectations of his employer at the time the PIP was either instituted in June 1999, extended during the late summer and early fall, or culminated in a negative ECR in December 1999. Summary judgment on the age discrimination claim is not warranted.
III. Retaliation
The ADEA provides that it is "unlawful for an employer to discriminate against any of his employees . . . because such individual . . . has opposed any practice made unlawful by this section, or . . . participated in any manner in an investigation, proceeding, or litigation under this chapter." 29 U.S.C. § 623(d). To state a claim for retaliation in violation of the ADEA, Evenson must prove that he engaged in ADEA-protected activity, Maytag took adverse employment action against him, and there was a causal connection between the two. Kempcke v. Monsanto Co., 132 F.3d 442, 445 (8th Cir. 1998).
In the present case, Evenson has established that he complained to Maytag about the following things: his placement on successive probationary PIPs for six months, his negative 1999 ECR performance review, and the denial of a pay raise and other compensation benefits. Evenson complained to Maytag that all of these actions had been improperly motivated by an age-based animus. Evenson made these complaints between January 2000 and May 2000. Evenson alleges that, following these complaints, Maytag took the following adverse employment actions against him: (1) a demotion to a district manager position in August 2000 (with a commensurate pay cut), and (2) a failure to consider him in June 2001 for at least one managerial vacancy in which he had expressed interest.
Maytag argues that one cannot establish a causal link between protected activity and adverse employment actions by showing merely that the adverse action followed the protected activity. Evenson argues that there is more evidence than simply post hoc ergo propter hoc. He contends that, when he called Human Resources Director James Hogan to complain about the pay consequences of his demotion to district manager, Hogan told him "You're lucky to have a job." (Evenson Dep. at 297.) Furthermore, Evenson asserts that he was the only zone manager whose transfer to another job in the July 2000 restructuring resulted in a loss of salary, a fact that Maytag has not rebutted. Finally, it is indisputed that Hewitt decided that Evenson was best suited for the district manager national accounts position, and that Evenson's continued status as an employee on a PIP was a factor contributing to his being assigned to the district manager national account assignment. (Hogan Dep. at 31-32.)
The Court determines that there is sufficient evidence supporting a causal link between the complaints of discrimination and the demotion to district manager in 2000 to permit a reasonable factfinder to consider Evenson's claim of retaliation. Accordingly, the Court will deny Maytag's motion for summary judgment on that claim. The Court finds insufficient evidence to establish that Evenson's failure to get a promotion back to regional manager in June 2001 was retaliatory. Accordingly, Evenson shall not be entitled to submit that question to the jury.
Conclusion
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS ORDERED that Defendant Maytag Appliance Sales Company's Motion for Summary Judgment (Doc. No. 33) is DENIED.