246 F.3d 856 (6th Cir. 2001), 99-3929, Wexler v White's Fine Furniture

Docket Nº:99-3929
Citation:246 F.3d 856
Party Name:Donald G. Wexler, Plaintiff-Appellant, v. White's Fine Furniture, Inc., Defendant-Appellee.
Case Date:April 19, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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246 F.3d 856 (6th Cir. 2001)

Donald G. Wexler, Plaintiff-Appellant,


White's Fine Furniture, Inc., Defendant-Appellee.

No. 99-3929

United States Court of Appeals, Sixth Circuit

April 19, 2001

Argued: October 31, 2000

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 98-00379, James L. Graham, District Judge.

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John S. Marshall, Columbus, Ohio, for Appellant.

James E. Davidson, SCHOTTENSTEIN, ZOX & DUNN, Columbus, Ohio, for Appellee.

Before: KRUPANSKY, BATCHELDER, and GILMAN, Circuit Judges.


KRUPANSKY, Circuit Judge.

In this action commenced pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq, the plaintiff-appellant, Donald G. Wexler ("Wexler"), has assailed the district court's

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summary judgment for the defendant-appellee White's Fine Furniture, Inc. ("White's), by which it resolved that the plaintiff had failed to proffer legally sufficient direct or circumstantial evidence to support his prima facie case. Alternatively, the trial court directed that, even assuming arguendo the existence of adequate circumstantial proof buttressing the plaintiff's age discrimination charge, the defendant had proffered a valid nondiscriminatory reason for its faulted actions, whereas the plaintiff had not countered that reason with evidence of pretext legally sufficient to muster a triable jury question. On review, Wexler has argued that the record evidence created a triable inference of discriminatory intent, as well as of pretextual motive, by White's.

At all times material to the subject action, White's owned and operated several retail furniture outlets in the Columbus, Ohio vicinity. On September 9, 1993, Gordon Schiffman ("Schiffman"), who was White's president, chief executive officer, and (together with his two sons) the controlling shareholder, hired Wexler to work as a sales representative at the predominantly family-owned company's Morse Road store. On that date, Wexler was 55 years old, and Schiffman was approximately 64 years of age1. As a floor salesman, Wexler received White's standard compensation package, namely six percent commission on all delivered sales, with a guaranteed minimum annual salary of $20,000 (increased in 1996 to $25,000). Any periodic salary payment which exceeded accrued commissions was distributed as a draw or advance against unearned future commissions.

Wexler's satisfactory performance on the sales floor, as well as his prior experience in the retail furniture industry, prompted Schiffman, on February 13, 1995, to promote the then-57-year-old Wexler to manager of the Morse Road store. Shortly thereafter, the plaintiff attended four extensive formal managerial training sessions, and subsequently benefitted from ongoing informal instruction by corporate supervisors. Based on his training and experience, Wexler understood that his duties as a store manager included, among other things, the counseling and supervision of subordinate personnel, the identification and correction of employee performance problems, and the replacement of malperforming or uncooperative sales representatives; as well as the creation of attractive furniture displays, the maintenance of the facility's overall appearance, the accurate recording of sales transactions, and the promotion of positive customer relations including the mailing of a "thank-you" note to each buyer. Most importantly, the plaintiff conceded at deposition that he knew that, as a store manager, Schiffman would hold him personally accountable for his location's aggregate sales figures.

Commencing in August 1996, the overall sales volume of the Morse Road store, as well as Wexler's personal sales productivity, began a gradual decline. That cash flow problem alarmingly worsened between November 1996 and May 1997, when average monthly sales at Morse Road decreased 30.25%, and Wexler's personal sales declined 48% (or about $200,000), compared to the corresponding seven-month interval during the prior twelve-month period. In response to that

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continuing downward spiral, the defendant adjusted Wexler's remuneration formula, starting on March1, 1997, to partially reflect the overall performance of the Morse Road store - White's reduced Wexler's commission on his personal sales from six to three percent, but concurrently entitled him, for the first time, to a commission of one and one-half percent on all delivered sales transacted by his subordinate staff members.

On June 9, 1997, Wexler, Schiffman, and David Lively ("Lively"), who was White's Executive Vice-President and owner of five percent of the concern's shares, met to discuss the Morse Road location's chronically low traffic. During that meeting, Schiffman expressed extreme dissatisfaction with the store's 24% decline in sales during the five-month period January through May 1997, and further chastised Wexler for specific deficiencies in his managerial performance, including consistently sloppy paperwork,2 failure to counsel underperforming sales representatives, and inadequate store maintenance3.

On June 15, 1997, Schiffman and Lively advised Wexler that the company planned to demote him to his former position as a floor sales representative. The two corporate officers emphasized to Wexler that, although they were dissatisfied with his performance as a store manager, 4 they hoped that he would remain on White's sales staff. They expressed mutual confidence that he could contribute to the company in the future as a sales professional. As a partial inducement for him to accept the proposed re-assignment, the defendant offered Wexler the most generous compensation package ever bestowed upon one of its salesmen: Wexler's managerial compensation would continue through the balance of June 1997, and thereafter, he would accrue an eight percent commission on each of his personal consummated sales, rather than the standard six percent allotted to each of White's other salespersons. Moreover, the company agreed to forgive $4,500 in past salary advanced to Wexler as a draw against his as-yet-unearned commissions, despite its long-standing policy and practice of debiting such excess payments against the employee's unaccrued future commissions.

As purported support for his allegation that Schiffman demoted him by reason of age-driven animus, Wexler testified that, near the start of the June 15, 1997 assembly:

Gordon [Schiffman] had a smile on his face, said he had read the paper that I had given him, and that most of what I had written was correct. However, they have decided to make a change.

He then said, you're 60 years old, aren't you, Don? I said, no, Gordon. I'm 59. I'll be 60 in January. He then said,

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well, we both have been in the business 117 years [sic -- 127?]. You don't need the aggravation, stress of management problems, customer problems, taking care of all these salespeople's problems that keep calling you on the phone all day every day.

Mr. Lively then interjected that they were going to really be grinding their managers in the future, and if they had to sweep floors or stay there until 11:00 p.m., they would do so. And he said it was stuff that I don't think you'd want to be doing.

Wexler also testified that, immediately prior to the June 15 meeting, he had observed Schiffman and Lively speaking with a "young man." That person was John Neilson ("Neilson"), an individual in his early thirties.

On the following day, June 16, 1997, Wexler verbally accepted Schiffman's reassignment proposal and graduated commission offer. Schiffman responded that he was pleased by Wexler's decision to remain on White's employment roster. Later that evening, Schiffman telephoned Wexler to clear with him the highlights of his planned announcement to the company staff regarding Wexler's departure from management. Without objection from Wexler, Schiffman suggested, manifestly to spare Wexler potential embarrassment, that he would "just mention that you're getting older, although not as old as I am."

Three days later, on June 19, 1997, Schiffman convened his employees to announce Wexler's downgrade to his former non-supervisory sales position. Wexler tape recorded that meeting. He has relied upon the following excerpt from Schiffman's oral address:

I'm going to share with you a conversation that Don Wexler, David Lively and I started in January. Don came back to my office one day and said Gordon, I've been in my management [sic] for a bunch of years, and I'm not sure what I want to do. Maybe I should just be worrying about my own customer and not everyone else's customers. This is getting to be tiring.

At that time we were interviewing for managers, because we needed somebody for this store. But we did interview another guy that we thought was top drawer. We thought that he was just absolutely a terrific kid. He's about David's age, been in the furniture business about as long as David. He's about as intense as David is. He's a fine guy. His name is John Nielson [sic]. I think you will like him very much. He is a fine, proper young man. Don't be misled by his youth anymore than being misled by David Lively's youth.

Appellant's opening brief, pages 18-19. (Ellipse and note omitted).

Wexler conceded at deposition that Schiffman's June 19, 1997 presentation, during which he did not directly reference Wexler's age, was "gracious."

As additional evidence of the defendant's purported age-animated bias, Wexler attested that David Lively once, on an unspecified date, had offered, "out of respect for [Wexler's] age," to retrieve a pen from the floor which Wexler had dropped; had on another undated occasion described the plaintiff to an outside manufacturer's representative as "a bearded, grumpy old man;" and had occasionally addressed him as "pops" or "old man." However, Wexler conceded that he, in turn, had...

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