Opinion
CIVIL ACTION No. 01-2513-CM
August 1, 2003
MEMORANDUM AND ORDER
Pending before the court is defendant's Motion for Summary Judgment (Doc. 39). Plaintiff brings claims against defendant for breach of contract, age discrimination, and retaliatory discharge under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623. Based on the court's review of the entire record presented regarding this motion, and for the reasons set forth below, defendant's motion is granted.
The facts set forth by both parties are comprehensive. The court has reviewed the extensive allegations set forth by the parties, but includes herein only a summary of the relevant facts.
I. Facts A. Plaintiff's Compensation
The court construes the facts in the light most favorable to plaintiff as the non-moving party pursuant to Fed.R.Civ.P. 56. Additionally, plaintiff does not disclose the means of his personal knowledge of certain facts. Cf. Fed.R.Civ.P. 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein . . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits . . . must set forth specific facts showing that there is a genuine issue for trial."). The court will therefore exclude from consideration those factual contentions which contain no support in the record. See H.B. Zachry Co. v. O'Brien, 378 F.2d 423, 425 (10th Cir. 1967) (conclusory statements, general denials, and factual allegations not based on personal knowledge are insufficient to avoid summary judgment).
Plaintiff was hired by UARCO in 1973 and was employed by defendant as an account representative after defendant purchased UARCO in 1998. Throughout his employment, plaintiff serviced the Burlington Northern Santa Fe ("BNSF") account. In 1994, while plaintiff still worked for UARCO, plaintiff voluntarily changed positions from District Manager of Kansas City to account representative of BNSF. When plaintiff made this change, Jan Fairless — who was then a general sales manager for UARCO — wrote a letter to plaintiff explaining his salary reduction schedule. The relevant portion of that letter states as follows:
Your annual salary of $60,100 will remain at that level until April 1, 1995. At that time your salary will be reduced to $55,100 annually. On April 1, 1996, your salary will be reduced to $50,100. This will be the floor for your base salary unless a "poor" performance is recorded as evidence your work is not to acceptable UARCO standards.
(Ex. A.4 (the "Fairless Letter").) The Fairless Letter also states that plaintiff would receive the same expense reimbursement and sales commissions as all other account representatives receive. The letter was signed by Mr. Fairless and dated May 31, 1994. Plaintiff did not sign the Fairless Letter. Apparently, this version of the letter was the last of several drafts Mr. Fairless and plaintiff negotiated.
Coincident to his change to account representative, and just before this final version of the Fairless Letter was drafted, plaintiff signed a non-compete agreement (the "Salesman Agreement"). Neither the Fairless Letter nor the Salesman Agreement bear any reference to each other. However, plaintiff claims that he refused to sign the Salesman Agreement until the Fairless Letter was negotiated because he believed that the two documents — taken together — created his compensation package for the future.
The Salesman Agreement states that plaintiff's "sole compensation for his services performed hereunder shall be the remuneration paid to Salesman by Company in accordance with compensation schedules and rates from time to time determined by Company." (Salesman Agreement, ¶ 2.) The Salesman Agreement also provides that it is "the complete agreement between Company and Salesman and supersedes all prior agreements or understandings, written or oral . . . No modification, termination or attempted waiver of any of the provisions hereof shall be binding on the parties unless in writing and signed by both Salesman and Company." (Id. at ¶ 12.) When plaintiff transferred to the account representative position, he became Team Leader of the BNSF account, which was his only account.
In October 1997, Kent Kirchoff became the Kansas City Regional Manager and plaintiff's direct supervisor. In December 1997, defendant purchased UARCO. At the time of the purchase, Mr. Kirchoff informed plaintiff that plaintiff's compensation was likely to change after the merger of the two companies.
At the time of the merger, all UARCO employees who were to work for defendant were given a choice between two compensation packages for their first year of employment with defendant. The first option was called the "income bridge." Under this option, an employee would receive compensation equal to the salary and commissions earned the previous year. After the first year, all employees on the income bridge would receive compensation under defendant's standard compensation plan. Under a second option, employees could immediately begin receiving salary and commissions under defendant's standard plan.
Plaintiff refused to choose either plan, believing that his salary and/or commissions would be lower under either plan than what he deserved under his UARCO contract. When he refused to choose a plan, defendant automatically placed plaintiff on the standard compensation package. Plaintiff immediately told defendant that he believed defendant was violating the terms of his compensation agreement as set forth in the Fairless Letter; plaintiff claimed that the Fairless Letter guaranteed him a minimum salary for as long as he worked for UARCO or any company that purchased UARCO.
B. Plaintiff's Complaints Regarding Compensation
Plaintiff complained to defendant throughout 1998 that his compensation package was not adequate. He also complained that his commissions were not being paid in a timely manner. Sometime during 1998, plaintiff suggested that defendant agree to a severance agreement and put plaintiff on retainer as a consultant on the BNSF account. Defendant apparently refused, because plaintiff continued to work as the BNSF Team Leader until 2000.
During this time, plaintiff also asked for resources he deemed necessary to adequately service the BNSF account. These requests were either denied or not timely addressed. Plaintiff claims that younger account representatives received better, faster service on requests for resources, but he cites no support for this allegation.
During 1998 and 1999, plaintiff's performance evaluations dropped decidedly. Plaintiff, who had been rated very well in 1997, received a "2.5" (between "good" and "very good") overall rating in 1998. On plaintiff's 1998 evaluation, he received a "5" in one area. A "5" means "unsatisfactory" and indicates that plaintiff "failed to achieve objective(s) and, as a result of either aptitude or attitude, did not satisfy job responsibilities. The employee is unresponsive to supervision and direction. The employee must be informed (in the case of an overall rating) that his/her job is in jeopardy." (Ex. B.13-14.) The 1998 evaluation also contains a note that "[plaintiff] did not sell in 1998, his focus was on compensation and [defendant's] policy/procedures." The evaluation also stated that plaintiff needed to work better with the Fort Worth, Texas office to achieve certain goals. (Id.)
In plaintiff's 1999 evaluation, Mr. Kirchoff commented that "Jim has allowed this frustration [with defendant's sales and service model] combined with the challenges of working for a large corporation to evolve into a negative attitude. This style, and belief that he is being singled out has significantly challenged his relationship with his co-workers." (Id.) Plaintiff received a "3.5" rating (between "good" and "needs improvement") in 1999.
Through the formal evaluation process, plaintiff disagreed with most of the negative comments on his evaluations in both 1998 and 1999. In addition, on April 6, 2000, plaintiff wrote
Anyone who files a discrimination complaint against their employer, as I have done, will be viewed as an employee with a "bad attitude." If, and when the discrimination is corrected and ends, I am sure my "abrasiveness" and "bad attitude" will change, my production will increase, and I will be the top rated employee, as I have been for the first 25 years on this job.
(Id.)
Plaintiff believed Mr. Kirchoff wanted to fire him because plaintiff made too much money. In fact, Mr. Kirchoff did testify that various employees did not want to listen to plaintiff's complaints about compensation because plaintiff made significantly more money than those employees. Mr. Kirchoff also believed that plaintiff needed to travel more frequently to the Fort Worth area. Plaintiff claims that no one told him to travel to Fort Worth more often, but he admits that he rarely made the Fort Worth trip.
Additionally, throughout this time, plaintiff and other employees of defendant were aware of serious potential problems with the BNSF account. BNSF had complained regarding billing problems and concerns regarding the honesty of defendant's employees with whom they dealt. In 2000, Mr. Kirchoff became aware that plaintiff's continued presence on the BNSF account would be detrimental to any efforts to retain BNSF's business.
C. Plaintiff's Discrimination Charge
On various occasions, and at least as early as March 22, 2000, plaintiff told Mr. Kirchoff and other defendant employees that he believed he was being discriminated against because of his age and that he was filing a charge with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff repeated this claim several times from March to August. On June 26, 2000, plaintiff sent an e-mail to Traci Kellner, a human resources employee, stating that:
I was hoping we could resolve these problems before I feel I had to start the legal process because I would be open to a more limited settlement if this were possible. I have had several court cases over the years and have learned that settlement is harder as cases drag on, but the process works. I guess [defendant] will have to add me to the list of employees who have become plaintiffs, but I will be glad to continue to pursue resolution through you at the same time, until the lawyers say I shouldn't.
(Fact ¶ 48.)
Sometime later in 2000, but prior to August 7, 2000, plaintiff had a discussion with Mr. Kirchoff in which plaintiff stated that he wanted to set forth a severance proposal and that it would be in defendant's best interest to accept it. Plaintiff stated that one of the reasons it would be in defendant's best interest was that, "if separation terms were agreed to, [plaintiff] would be more than willing to do whatever Mr. Kirchoff wanted [plaintiff] to do to try and renew the BNSF contract." (Aff. of James Haggard at ¶ 8.) Mr. Kirchoff testified that he believed this statement was a threat, as plaintiff's job was to work as hard as possible to secure the BNSF contract, regardless of whether separation terms were reached. Mr. Kirchoff explained this belief to plaintiff. Plaintiff explained that, if he knew he were leaving the company, he would not be concerned with maintaining his commission levels and would focus on selling the overall value of defendant's services. (Id. at ¶¶ 8-9.) Plaintiff also explained to Mr. Kirchoff that major customers, like BNSF, might take their business elsewhere if they were to be pulled into a discrimination lawsuit. Therefore, prompt resolution would benefit defendant. (Id. at ¶ 11.)
Mr. Kirchoff told plaintiff to send his severance proposal to human resources for review. Within a day of this meeting, Mr. Kirchoff had a telephone conversation with his immediate supervisor and recommended plaintiff's termination for what Mr. Kirchoff perceived as an agenda that would render plaintiff less loyal to defendant's goals in securing the BNSF contract.
Plaintiff e-mailed his severance proposal to Karen Hoffman, a human resources director, on August 7, 2000. The e-mail contained two sections. The first section was a list of reasons why defendant should accept plaintiff's proposal, and the second section contained the terms of his proposal. The first section stated, in relevant part:
If accepted by [defendant], this proposal would . . . [a]llow customer relationships at Hallmark Cards and BNSF Railway, as well as smaller customers in the Kansas City region to be unaffected by a battle between me and [defendant]. There is no question the business relationships with the Region's major customers will end if early agreement doesn't happen.
(Ex. A.8.)
Plaintiff sent his e-mail at 1:26 p.m. At 4:09 p.m., human resources sent an appointment confirmation to plaintiff, Mr. Kirchoff, Ms. Hoffman, and regional vice president Rich Campbell that set an appointment for August 16, 2000 at 9:30 a.m. regarding "Follow-up to Concerns." (Ex. A.18.) Ms. Hoffman testified that she and other employees of defendant believed the portion of plaintiff's e-mail set forth above was a threat to defendant's business relationships. The purpose of the meeting was to satisfy Ms. Hoffman that plaintiff did not intend to threaten defendant's business.
Plaintiff, Ms. Hoffman and Mr. Kirchoff attended the August 16, 2000 meeting. During the meeting, the parties did not discuss plaintiff's severance proposal. The only topic of conversation was the intent behind plaintiff's e-mail. Ms. Hoffman stated that, if she were satisfied at the end of the meeting that plaintiff's e-mail was benign, she would not terminate his employment. However, Ms. Hoffman stated that she was not satisfied at the conclusion of the meeting. She told plaintiff that defendant took his e-mail as a threat and that he was, therefore, fired, effective immediately.
Plaintiff filed a Charge of Discrimination with the EEOC on October 25, 2000. Plaintiff claims that the EEOC never requested any additional information from him and that he fully cooperated with the EEOC's investigation. However, on July 25, 2001, the EEOC issued a Dismissal and Notice of Rights stating, "having been given 30 days in which to respond, you have failed to provide information, failed to appear, or be available for interview/conferences or otherwise failed to cooperate to the extent that it was not possible to resolve your charge." (Fact ¶ 63.) Plaintiff asserts that he did not receive the Dismissal and Notice of Rights until November 2001. Plaintiff filed the instant lawsuit on October 25, 2001.
Additionally, following his termination, plaintiff made efforts to secure commission checks for orders entered during his employment but shipped subsequent to his termination. Defendant claims that plaintiff has received all commissions due under defendant's policies. Plaintiff also claims that defendant owes him a deferred portion of his 1998 President's Bonus. Defendant argues that plaintiff is not entitled to the deferred portion because plaintiff was fired for cause.
II. Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut," rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
III. Exhaustion of Remedies
Defendant argues that plaintiff is barred from recovery on his two ADEA claims because he has not exhausted his administrative remedies. Plaintiff argues that the ADEA only requires plaintiff to file a charge with the EEOC, wait 60 days from that filing to file a lawsuit in federal court, and "put forth a good faith effort to cooperate with the EEOC and to provide all relevant, available information upon the agency's request." (Pl. Br. at 25, (citing Khader v. Aspin, 1 F.3d 968, 971 (10th Cir. 1993))). Defendant argues that plaintiff did not act in good faith and failed to cooperate with the EEOC's investigation.
To support these allegations, defendant directs the court to the Dismissal and Notice of Right letter. The court will examine whether plaintiff cooperated and, if not, whether his failure to cooperate with the EEOC supports a finding that plaintiff failed to exhaust administrative remedies. See McBride v. Citgo Petroleum Corp., 281 F.3d 1099, 1105 (10th Cir. 2002). The authority to dismiss for failure to cooperate is granted to the EEOC pursuant to 29 C.F.R. § 1601.18(b):
Where the person claiming to be aggrieved fails to provide requested necessary information, fails or refuses to appear or to be available for interviews or conferences as necessary, fails or refuses to provide information requested by the Commission pursuant to § 1601.15(b), or otherwise refuses to cooperate to the extent that the Commission is unable to resolve the charge, and after due notice, the charging party has had 30 days in which to respond, the Commission may dismiss the charge.
Id. The EEOC can "on its own initiative reconsider its decision" to dismiss. 29 C.F.R. § 1601.21(b) (made applicable to dismissals for failure to cooperate by 29 C.F.R. § 1601.18(f)). Although the parties cannot force the EEOC to reconsider its decision, the record does not reflect that plaintiff requested reconsideration.
A dismissal by the EEOC does not preclude the plaintiff from instituting court action because the plaintiff receives a right to sue letter despite the finding. McBride, 281 F.3d at 1105. The court must determine whether the plaintiff has complied with the regulatory requirements when a defendant raises the issue of failure to exhaust administrative remedies. Because failure to exhaust administrative remedies is a bar to subject matter jurisdiction, the burden is on the plaintiff as the party seeking federal jurisdiction to show, by competent evidence, that he did exhaust. United States v. Hillcrest Health Ctr., Inc., 264 F.3d 1271, 1278 (10th Cir. 2001), cert. denied, 535 U.S. 905 (2002).
Plaintiff claims that he did not receive the Dismissal and Notice of Rights letter until November 2001, after he had already filed the instant case. He also claims that he repeatedly contacted the EEOC to make sure the agency had everything it needed from him. The plaintiff claims he fully cooperated with the EEOC. The court finds plaintiff's statements to be self-serving and conclusory. To survive summary judgment, a "nonmovant's affidavits must be based upon personal knowledge and set forth facts that would be admissible in evidence; conclusory and self-serving affidavits are not sufficient." Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (quoting Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991)). Plaintiff's statements are merely conclusory and do not provide any factual basis to controvert the EEOC's letter stating that plaintiff was asked to provide additional information and failed to respond within 30 days. The court finds, therefore, that plaintiff did not cooperate with the EEOC and, therefore, did not exhaust his administrative remedies. Therefore, the court grants summary judgment on plaintiff's ADEA claims.
In the alternative, plaintiff argues that, unlike Title VII, the ADEA grants him an automatic right to sue 60 days after filing his EEOC charge, regardless of his level of cooperation with the EEOC. The court agrees that the exhaustion requirements under ADEA are less stringent than those under Title VII, in that an ADEA plaintiff is not required to wait for a right to sue letter before filing suit in federal court. However, the ADEA requires that charges be filed with the EEOC. The EEOC filing requirement has two functions, regardless of the particular discrimination alleged: to alert the employer of the charge and to facilitate conciliation through the administrative process. See Stevens v. Deluxe Fin. Servs., Inc., 199 F. Supp.2d 1128, 1150 (D.Kan. 2002). The court finds that allowing a plaintiff to proceed with an ADEA claim after failing to cooperate with the EEOC would thwart the administrative process and turn the EEOC filing requirement into a mere formality. The court does not believe this was Congress's intent in drafting the ADEA.
IV. Age Discrimination Claim
Even if plaintiff had exhausted his administrative remedies, plaintiff has raised no questions of material fact regarding his age discrimination claims. The ADEA states that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). To prevail on his ADEA claim, plaintiff must establish that age was a determining factor in defendant's decisions. See Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996) (citing Lucas v. Dover Corp., 857 F.2d 1397, 1400 (10th Cir. 1988)). Plaintiff need not show that age was the sole reason for any adverse employment action, but he must show that age "made the difference" in defendant's decisions. Id.
Plaintiff concedes that he has no direct evidence of discrimination, so the court must proceed under the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973).
A. McDonnell Douglas Burden-Shifting Analysis
In employment discrimination cases where, as here, a plaintiff cannot prove direct discrimination, the court applies the burden-shifting framework set forth in McDonnell Douglas to determine whether summary judgment is appropriate. 411 U.S. at 793.
Under the McDonnell Douglas test, the plaintiff bears the initial burden of establishing a prima facie case of age discrimination. Id. at 802. The burden then shifts to defendant to articulate some legitimate, nondiscriminatory reason for terminating plaintiff's employment. Id. The burden then reverts to the plaintiff "to show that there is a genuine dispute of material fact as to whether [defendant's] proffered reason for the challenged action is pretextual — i.e., unworthy of belief." Marx v. Schnuck Mkts., Inc., 76 F.3d 324, 327 (10th Cir. 1996). "Pretext can be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non — discriminatory reasons." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (internal citations omitted). However, "[m]ere conjecture that [defendants'] explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment." Id. (citing Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988)).
1. Plaintiff's Prima Facie Discrimination Case
Plaintiff brings his case under the ADEA. In order to prove age discrimination, plaintiff must establish that 1) he is a member of the protected age group, 2) he was doing satisfactory work, 3) he was discharged despite the adequacy of his work, and 4) his job was not eliminated after his discharge or he was treated less favorably than younger, similarly-situated employees. Smith v. Bd. of Comm'rs of Johnson County, Kan., 96 F. Supp.2d 1177, 1188 (D.Kan. 2000). It is undisputed that plaintiff is a member of a protected class under the ADEA. It is also undisputed that plaintiff was discharged. Therefore, plaintiff must set forth sufficient evidence to establish that he was doing satisfactory work and that his job was not eliminated after his discharge or that he was treated less favorably than younger employees.
a. Whether Plaintiff's Work Was Satisfactory
The court concludes that there exist questions of material fact as to whether plaintiff's work was satisfactory. Plaintiff's employment evaluations deteriorated in 1999 and 2000, and his reviews reflected that he did not work well with his team and that he did not travel to Fort Worth, Texas, as much as his superiors expected. However, the uncontested evidence shows that plaintiff was one of the top salespeople for defendant throughout his employment.
It is questionable whether plaintiff maintained the objective professional qualifications he held when he was hired. It is at least reasonable to assume that defendant felt plaintiff was not doing a satisfactory job; defendant understood that plaintiff's sole account had concerns with plaintiff's work and was considering taking its business elsewhere. However, plaintiff had worked for defendant and defendant's predecessor company for 27 years without serious discipline or performance problems. Therefore, the court concludes that plaintiff has met his burden at the prima facie level of showing that factual issues exist regarding his job performance. See MacDonald v. Eastern Wyoming Mental Health Ctr., 941 F.2d 1115, 1121 (10th Cir. 1991).
b. Whether Plaintiff's Position Was Eliminated
Even if plaintiff could prove satisfactory job performance, plaintiff must still show that he was terminated and replaced by a younger person. Creason v. Seabord Corp., No. Civ. A. 263 F. Supp.2d 1297, 2003 WL 21419266 at *2 (D.Kan. 2003). Plaintiff claims that he was replaced by his direct supervisor, Mr. Kirchoff, and by a young sales representative in the Fort Worth, Texas office, Mr. Yates.
If this were a case where the defendant claimed that plaintiff was fired during a reduction in force (RIF), the court would also look to whether plaintiff was treated less favorably than similarly-situated younger employees during the RIF. See Stone v. Autolive ASP, Inc., 210 F.3d 1132, 1137 (10th Cir. 2000). Since defendant contends plaintiff was fired for cause, this factor does not apply.
Plaintiff was the oldest sales representative working for defendant at the time his employment ended. Therefore, if any of defendant's employees moved into plaintiff's position, this element is satisfied. However, plaintiff has presented no evidence that anyone replaced him as the BNSF Team Leader.
Plaintiff alleges, and defendant admits, that Mr. Kirchoff took over the BNSF contract negotiations when defendant fired plaintiff. However, Mr. Kirchoff was plaintiff's direct supervisor. Mr. Kirchoff was not promoted into plaintiff's position; Mr. Kirchoff took on plaintiff's duties in negotiating the BNSF deal in addition to his other duties. Moreover, BNSF did not renew its contract, so the position of "BNSF Team Leader" was eliminated.
Plaintiff also alleges that a younger sales representative, Mr. Yates, replaced him on the BNSF account. However, plaintiff supports this claim only with his own affidavit. Plaintiff does not set forth any basis for his personal knowledge of this fact, nor does he give any indication of Mr. Yates's age, qualifications, or specific duties of plaintiff that Mr. Yates allegedly took over.
In short, there is no evidence that defendant replaced plaintiff after his termination. The undisputed evidence in the record indicates that the only job responsibility assumed by Mr. Kirchoff was the contract negotiation, and that plaintiff's other responsibilities may have been carried to completion by Mr. Yates. Thus, the undisputed evidence demonstrates that plaintiff's duties were eliminated or redistributed and that plaintiff was replaced by no one. Spreading the former duties of a terminated employee among the remaining employees does not constitute replacement. See McMahen v. Gaffey, Inc., 52 Fed. Appx. 90, *2 (10th Cir. 2002) (citations omitted).
The court concludes, therefore, that plaintiff has failed to present evidence of a prima facie case of age discrimination.
Plaintiff also states that, while a Team Leader, he did not receive necessary resources when he requested them. However, plaintiff does not claim to have knowledge of — nor does he introduce testimony of any other witnesses with knowledge of — any younger Team Leader who received necessary resources when requested. Plaintiff also asserts that he always had to argue with defendant in order to receive earned commissions. Again, plaintiff presents no evidence that any younger employees received their commissions without engaging in the same activity. Without factual support, these assertions are not sufficient to create a question of fact.
2. Defendant's Legitimate, Non-discriminatory Reason for Discharge
Even if plaintiff could prove his prima facie case, defendant has set forth a legitimate, non-discriminatory reason for discharging him. Plaintiff claims that defendant fired him because he made a settlement offer to defendant for his ADEA claims and threatened to file an ADEA lawsuit if defendant did not accept the settlement terms. Defendant states that plaintiff was fired for performance problems and because of a threat plaintiff made when he communicated his settlement offer.a. The Perceived Threat to Defendant's Business
The uncontroverted evidence shows that plaintiff told Mr. Kirchoff that he would "be more than willing to do whatever [Kirchoff wanted him to do] to try and renew the BNSF contract," but only if "separation terms were agreed to." However, as plaintiff's position was Team Leader of the BNSF account, it was his job to try and renew the BNSF contract regardless of whether he and defendant reached a buyout agreement.
Defendant never specifically uses the word "insubordination" to describe plaintiff's representations to Mr. Kirchoff, but the court concludes that defendant's allegations on this point would support a claim of insubordination, which is also a legitimate basis for termination. See Garcia-Harding v. Bank Midwest, N.A., 964 F. Supp. 1492, 1509 (D.Kan. 1997), see also Nulf v. Int'l Paper Co., 656 F.2d 553, 559 (10th Cir. 1981).
During this conversation, Mr. Kirchoff told plaintiff to put together a settlement proposal and submit it to the human resources department. Plaintiff submitted his proposal via e-mail, accompanied by a message stating that "the business relationship with the Region's major customers will end if early agreement" regarding plaintiff's separation proposal did not occur.
Defendant submits that plaintiff's conversation with Mr. Kirchoff and the subsequent e-mail caused concern that plaintiff was disloyal and that defendant could no longer trust plaintiff to represent defendant's best interests. Because the human resources department perceived plaintiff's e-mail as a threat, Ms. Hoffman met with Mr. Kirchoff and plaintiff to discuss plaintiff's e-mail. Ms. Hoffman's goal in meeting with plaintiff was to determine whether his e-mail was intended to threaten defendant's business. If, at the conclusion of the meeting, Ms. Hoffman believed plaintiff was threatening defendant's business, Ms. Hoffman was authorized to fire plaintiff.
There are questions of fact as to how plaintiff responded when asked if his e-mail was a threat. However, the uncontroverted evidence shows that Ms. Hoffman and Mr. Kirchoff believed plaintiff was threatening defendant's business relationships. Ms. Hoffman told plaintiff her beliefs and terminated his employment at the conclusion of the meeting. The court determines that the perceived threat to defendant's business relationships was a legitimate, non-discriminatory basis for termination.
b. Performance-Related Concerns
Mr. Kirchoff also stated in his deposition that plaintiff was terminated for performance problems. This is somewhat inconsistent with the testimony of defendant's other representatives, who claim plaintiff was terminated for the perceived threat against defendant. It is clear from the record that Ms. Hoffman only considered the threat and that she ultimately decided termination was appropriate on that basis. However, Mr. Kirchoff was involved in the discussion of whether to fire plaintiff and — as his immediate supervisor — relied on performance-related issues in recommending that plaintiff be fired.
It is clear from the record that plaintiff was made aware that defendant had issues with plaintiff's performance. In 1999, plaintiff's overall performance rating was a 3.5, which placed his performance somewhere between "good" and "needs improvement." Plaintiff was also made aware in his performance evaluations that he needed to work better with his team. Plaintiff admitted that he knew BNSF — his sole account — had lodged complaints during the time that he serviced the account. Mr. Kirchoff also testified that it was his understanding that BNSF was dissatisfied with plaintiff's work, and that plaintiff's continued presence on the BNSF account would hinder successful renegotiation of the BNSF contract. Finally, Mr. Kirchoff testified that he did not believe plaintiff traveled to the Fort Worth region as often as he needed in order to be effective in his job. Plaintiff argues that he was never told to travel more frequently, but does not dispute that he rarely made trips to Fort Worth. The court concludes that defendant has asserted an additional reasonable basis for terminating plaintiff's employment.
c. Evidence of Pretext
Pretext may be shown by "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non — discriminatory reasons." Morgan, 108 F.3d at 1324. However, "[m]ere conjecture that [defendants'] explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment." Id. (citing Branson, 853 F.2d at 772). Plaintiff argues that each of defendant's proffered reasons — the threat and plaintiff's performance — are pretextual and unworthy of credence. The court disagrees.
1. The Perceived Threat
Plaintiff claims that defendant could not reasonably have perceived his e-mail or his conversation with Mr. Kirchoff as a threat to defendant's business. Plaintiff claims that he explained that he only meant that BNSF and other major customers would not want to be drawn into a lawsuit and might take their business elsewhere. Plaintiff argues that it was unreasonable for Mr. Kirchoff or Ms. Hoffman to perceive a threat from the conversations and e-mail. The court finds that plaintiff's assertions are mere conjecture and are, therefore, insufficient to show defendant's reasons were pretextual.
2. Plaintiff's Performance
Plaintiff argues that Mr. Kirchoff, the only person involved in the decision to terminate plaintiff who claims his reasons included performance problems, lobbied to have plaintiff fired from 1998 forward. Plaintiff claims Mr. Kirchoff wanted to fire plaintiff because plaintiff made too much money. This contention is not supported by the record. Rather, Mr. Kirchoff claimed that plaintiff's fellow employees — who were making far less money than plaintiff — did not appreciate plaintiff's repeated complaints that his salary was too low.
Plaintiff argues that Mr. Kirchoff would look more profitable if he fired plaintiff because it would decrease Mr. Kirchoff's bottom line. Plaintiff claims he was singled out because his salary was significantly higher than other sales representatives, so that eliminating his salary would make the most difference to the bottom line. Plaintiff has submitted no evidence to support his conclusory allegation that salary was a motivating factor in his termination. Even if this were true, however, termination for being the highest paid employee — standing alone — does not evidence age discrimination. See E.E.O.C. v. Sperry Corp., 852 F.2d 503, 511-12 (10th Cir. 1988). Moreover, this allegation does not render implausible defendant's claim that plaintiff was terminated for performance problems. Even if Mr. Kirchoff wanted to fire plaintiff as early as 1998, he did not do so. None of plaintiff's assertions create a question of fact regarding whether defendant's decision was pretextual.
3. Other Evidence of Pretext
Plaintiff argues that other factors show that defendant's decision was pretextual. For example, plaintiff argues that Ms. Hoffman would have performed an investigation to determine whether plaintiff had violated his non-compete agreement if defendant truly believed plaintiff was a threat to its business. Plaintiff argues that the Ms. Hoffman would have pursued her suspicions if they actually existed. However, as defendant points out, there are other ways to damage client relationships than by soliciting those clients in violation of a non-compete agreement.
Defendant has not claimed it fired plaintiff because of a violation of his non-compete agreement. Defendant claims that plaintiff threatened to not fulfill his duty to renegotiate the BNSF contract and that business relationships would end if an agreement was not reached. Neither of these allegations necessitated an inquiry into plaintiff's actions under the non-compete agreement. Defendant's suspicions were addressed by holding the meeting at which plaintiff was fired. The court concludes that these actions do not show pretext.
Finally, plaintiff argues that defendant has a history of discriminating against its older employees. However, plaintiff does not offer any admissible support for his contentions. Plaintiff alleges that defendant fired many former UARCO employees during its takeover of that company. Plaintiff also alleges that many of those fired were over 40 years old. However, plaintiff presents no evidence that older employees were terminated more frequently than younger employees. Plaintiff presents no evidence regarding ages, qualifications, or even which employees were fired and which left voluntarily.
Plaintiff supports his argument that defendant has a policy of discriminating by directing the court to two age discrimination lawsuits filed in other jurisdictions by defendant's employees. However, "anecdotal evidence of discrimination should only be admitted if 'the prior incidences of alleged discrimination can somehow be tied to the employment actions disputed in the case at hand.'" Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 856 (10th Cir. 2000) (quoting Simms v. State of Okla., 165 F.3d 1321, 1330 (10th Cir. 1999)). "Plaintiff can meet this requirement by showing that the same supervisors were involved in prior discriminatory employment actions." Id.
Plaintiff states that Mr. Campbell, a Vice President at the time plaintiff was fired, was involved in both his termination and the termination of the plaintiff in one of the other lawsuits. Plaintiff alleges that Mr. Campbell made comments to the plaintiff in the other suit that defendant needed to "make room for young blood."
Plaintiff cites to the First Circuit's decision in Cummings v. Standard Register Co., 265 F.3d 56, 61 (1st Cir. 2001) in support of this allegation. However, plaintiff has not produced affidavits or other admissible evidence regarding this point, nor has plaintiff asked the court to take judicial notice of any facts adjudicated in the Cummings case. Therefore, any evidence regarding Mr. Campbell's involvement in previous allegedly discriminatory activity is not properly before this court. Fed.R.Civ.P. 56. Moreover, even if the court could consider this allegation, the Tenth Circuit has held that this type of stray remark is insufficient to create a jury issue in an ADEA case. "Age-related comments referring directly to the worker may support an inference of age discrimination . . . However, . . . isolated [or] ambiguous comments are too abstract . . . to support a finding of age discrimination." Cone v. Longmount United Hosp. Ass'n, 14 F.3d 526, 531 (10th Cir. 1994) (internal citations omitted).
While defendant admits that Mr. Campbell was involved in the decision to terminate plaintiff, there is no evidence in the record regarding his involvement with any previous discriminatory activity. Therefore, the court concludes that there is no evidence to rebut defendant's proffered reason for terminating plaintiff's employment. Therefore, the court grants summary judgment as to plaintiff's ADEA claim.
4. Additional Claim of Disparate Treatment
Plaintiff makes various claims that, prior to his termination, he was treated differently than younger sales associates. A disparate treatment claim under the ADEA exists when an employer treats an individual less favorably than others because of his or her age. Because disparate treatment is a form of intentional discrimination, liability depends on whether age actually motivated the employer's decision. Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1424 (10th Cir. 1993) (citations omitted).
Plaintiff claims that he did not receive resources he requested for the BNSF account. However, plaintiff presents no evidence that other, younger sales representatives received the resources they requested. Plaintiff also claims it took him months of negotiations to secure commission checks he had earned. Again, plaintiff presents no evidence that younger sales representatives had less trouble securing their own commissions.
Plaintiff claims his mileage reimbursement was reduced from $250 to $200 because Mr. Kirchoff had to give $50 to a younger and/or newer sales representative. Plaintiff claims that he was by far the oldest sales representative in his region, so the recipient was definitely younger. However, plaintiff does not set forth any facts regarding whether other sales representatives' mileage reimbursements were reduced. There is no evidence before the court as to whether only plaintiff suffered this reduction, or whether it affected all employees. Also, to prove disparate treatment, plaintiff must show that defendant was motivated by discriminatory intent. Williams v. Colo. Springs, Colo., Sch. Dist. No. 11, 641 F.2d 835, 839 (10th Cir. 1981). There is no evidence in the record to support a finding that defendant intentionally discriminated against older sales representatives. Summary judgment is granted as to this claim.
5. Additional Claim of Disparate Impact
A disparate impact claim is appropriate when "employment practices that are facially neutral in their treatment of different groups . . . in fact fall more harshly on one group than another and cannot be justified by business necessity." Id. (citations omitted). Plaintiff claims that defendant's policies had a discriminatory effect on older sales representatives. Plaintiff claims that older sales representatives were solicited to give pieces of business to younger sales representatives to help them qualify for the "100 Plus Club." However, the record reflects that older sales representatives were not required to give away business; in fact, plaintiff refused when he was solicited. The record also shows that the younger sales representatives paid the older representatives back for the business. Finally, the evidence shows that newer representatives, as opposed to younger representatives, approached more senior sales representatives, as opposed to older representatives. There is no evidence in the record that any older sales representatives were adversely affected by this practice, nor is there any evidence in the record that all of the newer representatives were outside the protected class. The court concludes that there is no evidence to support a disparate impact claim.V. Retaliation Claim
As explained above, plaintiff's retaliation claim is barred because he failed to exhaust his administrative remedies with the EEOC. Plaintiff has also failed to establish a prima facie case of retaliation. In analyzing retaliation claims, the court applies the McDonnell Douglas shifting burden of proof discussed above. See Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1394 (10th Cir. 1997). The ADEA prohibits an employer from discriminating against an employee because the employee "has opposed any practice made an unlawful employment practice" by the ADEA. 29 U.S.C. § 623(d). To establish a prima facie case of retaliation, plaintiff must show (1) that he engaged in protected opposition to ADEA discrimination; (2) that he was disadvantaged by an action of his employer subsequent to or contemporaneously with such opposition; and (3) that a causal connection exists between the protected activity and the adverse employment action. Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993).
A. Prima Facie Case 1. Protected Activity
The parties agree that plaintiff's comments regarding his EEOC charge were protected activity. However, the parties disagree as to whether the August 7, 2000 e-mail constitutes protected speech. Defendant claims the e-mail is not protected speech because it does not reference discrimination. However, the e-mail contains a settlement proposal which Mr. Kirchoff asked plaintiff to provide regarding plaintiff's age discrimination claim. The absence of reference to discrimination within the body of the e-mail does not negate the fact that plaintiff had discussed his discrimination claims with Mr. Kirchoff and that defendant was aware of the underlying basis of plaintiff's settlement proposal. If that proposal were the only thing contained in the communication, the e-mail would undoubtedly be protected speech. The body of the e-mail, however, presents a different issue, as that portion contained the language defendant perceived as a threat. The court concludes, therefore, that the section of plaintiff's e-mail setting forth his settlement proposal does deal with discrimination, and is therefore protected. However, the language in the body of the e-mail regarding defendant's business relationships is not protected, because it does not reference age discrimination. See Johnsen v. Indep. Sch. Dist. No. 3 of Tulsa County, Okla., 891 F.2d 1485, 1492-93 (10th Cir. 1989) (considering whether separate occasions of speech should be analyzed in their entirety or individually).
2. Causal Connection
The parties agree that plaintiff suffered an adverse employment action, in that his employment was terminated. Thus, the court next addresses whether there was a causal connection between plaintiff's protected speech and his termination.
The Tenth Circuit has held that "[t]he causal connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." Conner, 121 F.3d at 1395 (citing Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982)). Under that standard, a four-month time lag between participation in protected activity and termination by itself is not sufficient to justify an inference of causation. Id. Nor is a three-month period sufficient. See Richmond v. ONEOK, Inc., 120 F.3d 205, 208 (10th Cir. 1997); see also Butler v. City of Prairie Vill., 974 F. Supp. 1386, 1398 (D.Kan. 1997) (temporal proximity of between one and four months insufficient to raise inference of retaliation). Therefore, plaintiff's continued statements to defendant that he was filing an EEOC charge — which began as early as March 2000 — are not close enough in time to support a causal relationship to plaintiff's termination. However, the August 7, 2000 e-mail occurred only nine days prior to plaintiff's termination. The court will assume, without deciding, that this brief period of time supports an inference of causation.
The court concludes that the time between plaintiff's final threat of litigation and his termination — only one week — would normally be sufficient to support an inference of causation. However, the record shows that plaintiff told defendant he was pursuing litigation at least as early as June 26, 2000. (See Fact ¶ 48 ("I guess [defendant] will have to add me to the list of employees who have become plaintiffs.")) In light of the court's ruling in section V.B., it is not necessary to determine whether this almost two-month period of time supports an inference of causation or whether repetition of previous threats in the August 7, 2000 e — mail supports such an inference.
B. Defendant's Legitimate Non-Discriminatory Reason and Pretext
For the reasons set forth in Sections IV.A.2-3, above, the court concludes that defendant has set forth a legitimate, non-discriminatory basis for plaintiff's termination and that plaintiff has produced no evidence of pretext. Further, an additional fact not relevant to the analysis above is worth noting: when Ms. Hoffman set up the meeting with plaintiff to discuss his August 7, 2000 e-mail, plaintiff believed the meeting would concern his settlement proposal. However, the uncontroverted evidence shows that plaintiff's discrimination claims and his settlement proposal were never discussed during that meeting. By all accounts, the meeting involved Ms. Hoffman and Mr. Kirchoff inquiring into whether plaintiff intended to threaten defendant's business relationships if defendant did not agree to his settlement terms. The terms of the settlement were never discussed, nor was any other resolution of plaintiff's age discrimination complaint.In order for the court to conclude that defendant's proffered reason was pretextual, the court would also have to conclude that the meeting at which plaintiff was fired was also arranged as a pretext. Plaintiff has provided no evidence that this was the case. The court grants summary judgment as to plaintiff's retaliation claim.
VI. Breach of Contract Claims
In order to establish a breach of contract claim, plaintiff must show 1) the existence of a contract, 2) sufficient consideration, 3) plaintiff's performance, 4) defendant's breach of the contract, and 5) damages caused by the breach. ORI, Inc., v. Lanewala, 147 F. Supp.2d 1069, 1078 (D.Kan. 2001). In this case, plaintiff claims that defendant violated his minimum salary requirement as set forth in the Fairless Letter and incorporated into the Salesman Agreement. Plaintiff also claims that defendant breached its contract with plaintiff regarding the 1998 President's Bonus and certain commissions plaintiff alleges he is owed. Defendant denies that it has breached any contract. The court will address each contract issue separately.
A. Plaintiff's Minimum Salary
Plaintiff claims that the Fairless Letter entitled him to a minimum salary for as long as he remained with the company, and that defendant breached the express terms of the Letter. Plaintiff also argues that, if the Fairless Letter is not an enforceable contract, it was incorporated into the Salesman Agreement, which is an enforceable contract. Defendant argues first that the Fairless Letter is not an enforceable contract. Defendant next argues that the Fairless Letter is superseded by the Salesman Agreement. Finally, defendant argues that, even if the Fairless Letter is enforceable, defendant is not bound by any UARCO employee contracts.
The parties agree that defendant was not a party to any of the original documents at issue, so that defendant is only bound by defendant's employment contracts if defendant assumed those contracts. The court begins by addressing whether defendant's purchase agreements with UARCO required defendant to comply with UARCO employee contracts. If defendant is not bound by UARCO employee contracts, then it is irrelevant whether the Fairless Letter or the Salesman Agreement guaranteed plaintiff a minimum salary from UARCO.
Defendant sets forth three facts on this issue:
• The purchase agreement between [defendant] and UARCO provides that [defendant] intends to provide continuing employees of the acquired Companies (UARCO), for a period of not less than one year following the Closing, with the same or comparable benefits to those [defendant] provides to similarly situated employees of [defendant].
• The Purchase Agreement further states:
Nothing contained in this Agreement shall require [defendant] to retain any employees of any of the Acquired Companies for any period of time or otherwise bestow any rights to any such employees or similar obligations of [defendant]. Nothing contained in this Section 6.5 or elsewhere in this Agreement shall confer or vest any rights in any employee of the Acquired Companies.
* [Defendant] did not assume any contracts UARCO had with its employees.
(Def. Mot. for Summ. J. at ¶¶ 94-96.)
Plaintiff does not dispute the first two facts. Defendant's only basis for disputing the third fact is its belief that defendant admits in a footnote to defendant's Motion for Summary Judgment that defendant assumed employee contracts. However, defendant's footnote actually references deposition testimony that the UARCO non-compete agreements remained in force after defendant's purchase, not that defendant assumed compensation contracts. The footnote seems to indicate that defendant is arguing in the alternative; that is, if the court found defendant assumed the UARCO contracts, then here is an additional reason plaintiff's claim would fail. Moreover, the footnote reads, "If the Salesman's Agreements were not in fact assumed by [defendant], the import is that plaintiff had no contract of any kind with [defendant]."
The court concludes that this footnote is not an admission that defendant assumed employee contracts. Plaintiff does not advance any additional arguments or evidence regarding whether defendant assumed employment contracts. Therefore, based on the uncontroverted facts before the court, it is clear that the Purchase Agreement did not vest any rights to compensation in any of defendant's employees. It is equally clear that, even if plaintiff had a contract in place with UARCO that guaranteed him a minimum salary, that contract was not assumed by defendant. The court grants summary judgment on plaintiff's claim for breach of contract, as it concerns his allegations of a guaranteed minimum salary.
B. The 1998 President's Bonus
It is unclear to the court whether plaintiff continues to claim he is owed funds under his 1998 President's Bonus, and plaintiff has not fully responded to this portion of defendant's Motion for Summary Judgment. The uncontroverted evidence shows that plaintiff was not entitled to any unpaid sums of the bonus if he was fired for cause. Defendant argues that he was not fired for cause, but in retaliation for voicing opposition to discriminatory practices. The court has already found that defendant fired plaintiff for a legitimate, non — discriminatory reason, and plaintiff has set forth no basis, under these findings, for awarding unpaid portions of the President's Bonus. Therefore, the court grants summary judgment on this issue.
C. Outstanding Commissions
Plaintiff claims that defendant owes him from $200,000 to $300,000 in unpaid commissions. In its Motion for Summary Judgment, defendant states that it has paid defendant all commissions due. In response, plaintiff does not provide the court with any factual basis for the amounts he alleges he is owed. Instead, plaintiff states that defendant's policy differs from its practice of paying commissions to terminated employees. Plaintiff also names two younger former employees who left defendant's employ and were allegedly paid commissions on a different schedule than was plaintiff.
Plaintiff alleges the amount is $200,000 in his EEOC charge, but he alleges that the amount is $300,000 in this case. Plaintiff has provided the court with no evidence whatsoever to support either of these amounts.
One of the former employees, Kathryn Brunk, voluntarily left her employment. Since she was not terminated, the court finds that she is not similarly-situated to plaintiff. The other former employee, David Atherton, was terminated. Plaintiff states that Mr. Atherton was paid on orders that shipped from storage after his termination. Plaintiff sets forth no basis for his knowledge of this fact. Because the court finds that there is no factual support for plaintiff's contention, the court will not consider Mr. Atherton's alleged commissions. The court looks, instead, to defendant's policy on this issue to determine if defendant breached any contract with plaintiff.
The parties agree that the following paragraph from defendant's policy manual addresses commissions due to terminated employees:
Sales Reps who terminate or transfer to another region after order entry, but before shipment, will be paid commission on the order unless there are extenuating circumstances that would preclude payment. Such circumstances would include, but not limited to, fraudulent orders and orders with scheduled ship dates more than six moths beyond order entry. This does not apply to releases from storage made after a Sales Rep leaves the region. Such releases will be credited to the Sales Rep taking over the account.
(Fact ¶ 132.) Plaintiff argues that the language of this policy is ambiguous, and that it is unclear whether the policy applies at all to releases from storage. The court disagrees. The court finds that the unambiguous language of the policy states that shipments released from storage after a sales representative leaves or is terminated will be credited to the sales representative taking over the account. The court's understanding is that plaintiff seeks commissions on shipments released from storage after his termination. Based on the court's plain reading of the policy, the court grants summary judgment as to plaintiff's claim for unpaid commissions.
IT IS THEREFORE ORDERED that defendant's Motion for Summary Judgment (Doc. 39) is hereby granted.