Menzel v. Western Auto Supply Co.

• Decision Date: 08 June 1987
• Docket Number: Civ. No. 86-0112(PG).
• Citation: 662 F. Supp. 731
• Court: U.S. District Court — District of Puerto Rico
• Parties: Herbert MENZEL, and the Conjugal Partnership consisting of Herbert Menzel and Dorothy Menzel, Plaintiffs, v. WESTERN AUTO SUPPLY COMPANY, Defendant.

662 F. Supp. 731

Herbert MENZEL, and the Conjugal Partnership consisting of Herbert Menzel and Dorothy Menzel, Plaintiffs, v. WESTERN AUTO SUPPLY COMPANY, Defendant.

Civ. No. 86-0112(PG).

United States District Court, D. Puerto Rico.

June 8, 1987.

COPYRIGHT MATERIAL OMITTED

Harvey B. Nachman, Santurce, P.R., for plaintiffs.

Jorge L. CapÛ Matos, Hato Rey, P.R., for defendant.

OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

The matter is before this Court on defendant's, Western Auto Supply Company (hereinafter Western Auto), motion for summary judgment requesting that plaintiffs', Herbert Menzel and the conjugal partnership consisting of Herbert Menzel and Dorothy Menzel (hereinafter plaintiffs), claims under the Age Discrimination in Employment Act (hereinafter ADEA), 29 U.S.C. ß 621, et seq.; the Commonwealth of Puerto Rico Law No. 100 of June 30, 1959, 29 L.P.R.A. ß 146 et seq.; and the Commonwealth Law No. 80 of May 30, 1976, 29 L.P.R.A. ß 185a et seq., be dismissed.

Plaintiffs assert jurisdiction over the claims arising under the laws of the Commonwealth of Puerto Rico pursuant to the diversity jurisdiction statute, 28 U.S.C. ß 1332.

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions in file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1982).

Findings of Fact

After a thorough review of the entire record, including all the responsive pleadings, affidavits and documents filed this Court finds that there is no genuine issue as to the following material facts:

1. Defendant, Western Auto, is an employer as defined by ADEA and does business in this judicial district.

2. Plaintiff Herbert Menzel worked for Western Auto from approximately January 24, 1978, until August 26, 1985, when he was dismissed. Menzel was 49 years old when employed by Western Auto and 57 years old at the time of dismissal.

3. Throughout his employment, Menzel was evaluated by his immediate supervisors as an employee who placed more emphasis in volume production than in quality business. Based on volume production exclusively, Mr. Menzel earned prizes on several occasions. In the supervisors' opinion, Menzel demonstrated a neglect for details and accuracy, both in reporting functions and expenses and in the performance of his duties. On many occasions Menzel did not follow Company policies and procedures and did not follow up on assignments.¹ (A.H. Velghe's Sworn Statement, par. 5; T. Reese Stansel's Sworn Statement, pars. 3-5; Jeff L. Turner's Sworn Statement, pars. 3 and 5; Terry S. McCoy's Sworn Statement). The record is full of specific examples of Menzel's flawed performance, however, for brevity purposes, most, but not all of them, will be stated in this Opinion.

4. On or about October 19, 1979, Menzel faced a serious disciplinary action, during which his discharge was considered because of his lack of detail in his reporting of expenses and in the performance of his duties. Menzel was subject to an internal audit at Western Auto concerning excessive mileage expense reimbursement requests, as well as excessive undocumented requests for reimbursements of telephone calls while on the field. His superiors, however, recommended that Menzel's employment not be terminated because of Menzel's past dedication to the Company and the fact that no dishonesty was involved. (A.H. Velghe's Sworn Statement, par. 6).²

5. Jeff L. Turner was Menzel's supervisor from December 1980 until June 1983. On April 28, 1981, and May 14, 1981, Turner admonished Menzel for several deficiencies in Menzel's work performance concerning credit collections or credit applications and the quality of the receivables Menzel was approving for conversion. (Jess L. Turner's Sworn Statement, par. 3(a) and (b) and Exhibits A and B thereto).

6. During the year 1981, Terry S. McCoy, as Assistant General Credit Manager for Western Auto, met with Menzel to instruct him about company procedures and the use of good judgment in approving conversions from installment accounts to the revolving account system. For some time Menzel was demonstrating poor judgment in the evaluation of the quality of the accounts versus more quantity. After the meeting, Terry S. McCoy submitted a report on Menzel's performance to his superior, A.H. Velghe. The report, dated July 8, 1981, and which was sent to Menzel's file, cited the following specific examples of incorrect credit judgment on Menzel's part:

1. Conversions received with application clearly noted that the account had been previously declined by Kansas City.

2. Approval of new account by telephone when we spend small fortune for Watts line and personnel to handle telephone approval via Kansas City.

3. Recent meeting included confirmation that FSs were to check Total Charge media during visits to insure daily mailing to Kansas City. Yet dealer in Clewiston, Florida which had a history of holding Total Charge payments and has had a number of visits for conversion purposes, recently submitted Total Charge payments that covered a period of two full calendar months. With the history of holding payments, what did Herb do in recent visits other than convert?

4. If I were to attempt to second guess Herb as to the reason for his approving conversions with poor stability, low income, no and/or weak credit, it would be his desire for sheer numbers and a very heavy dependence on the customer's past pay record or installment and the Dealer's personal opinion of the account.

5. While dating back to original conversion days, Bernard Johnson is an example of what can happen. The account was converted in January 1980 with an initial conversion balance in excess of $4,000. Customer's application and credit bureau report indicated an obvious overobligation. Herb thought very strongly that the decision should stand and said that he would collect it if it were delinquent. The account was in the Collection Department four months after being opened. It has not been current since the first billing. Present status is a balance of $4,551. The amount delinquent on the account is $1,713. The account will be a mandatory charge off this month. By July 1980 Herb was called upon to attempt collection on the account. Since July, Mr. Menzel with the assistance of a retail store manager and a dealer and through his own outside chase efforts, has collected two payments of $150 each. As stated, the first contact with Herb for collection assistance was July 1980, the last being April 28, 1981. During this period of time, there have been numerous requests for assistance, and I am sure numerous attempts at chasing this customer. However, as stated, we are in the process of charging off in excess of $4,000 of this account. I would think that the personal time spent by Herb in trying to collect this account would leave a lasting impression as to the need for quality in our receivables but it appears that the direction being taken is quantity, quantity, quantity.

I know Herb can. I honestly do not know why he is not.

(Terry S. McCoy Sworn Statement, par. 3 and Exhibit A attached thereto).

7. On November 4, 1981, Turner met with Menzel in Macon, Georgia, to terminate Menzel's employment. Turner's reasons for firing him were his poor judgment in the use of his time and travel expenses and other job performance deficiencies as perceived by Turner. At the personal request of A.H. Velghe, who intervened on Menzel's behalf when informed of his dismissal, Turner agreed to reinstate Menzel on the job. (Jeff L. Turner's Sworn Statement, par. 3(f); A.H. Velghe's Sworn Statement, par. 7; H. Menzel Deposition, August 18, 1986, p. 25).

8. On November 13, 1981, Turner sent a memorandum to Menzel in which he seriously questioned his judgment in dividing his time between the small tasks and the important tasks of his job. Menzel was told to spend more time in doing what he had to do, instead of unwarrantly criticizing or censuring other members of Western Auto.

9. On January 26, 1982, Turner prepared a Management Performance Appraisal on Menzel covering the period of January 1, 1981, to December 31, 1981. Turner's stated comments therein were that although Menzel had very good intentions, he was often overly sympathetic with dealers, had trouble recognizing good quality credit, kept very poor expense control and often talked when he should be listening. His overall performance evaluation was "satisfactory". Copy of the appraisal was received by Menzel. His specific performance review compared to established objectives consisted of ratings of good, excellent and unsatisfactory. (Jeff L. Turner's Sworn Statement, par. 3(b); Exhibit C thereto; H. Menzel's Deposition, August 18, 1986, pp. 29 & 31).

10. On January 27, 1982, Turner sent a confidential memorandum to his superior, Mr. C.C. Vess. Therein, he recommended the lowest percentage pay increase for Menzel, compared to the other field supervisors under his supervision because in Turner's opinion, Menzel's performance did not justify more. (Jeff L. Turner's Sworn Statement, par. 3(i); Exhibit I thereto).

11. On March 12, 1982, Turner sent Menzel a memorandum reminding him of specific instructions with respect to collection proceedings which Menzel had not followed. Turner had instructed Menzel that if he could not collect the SIB, he was not to leave the store until he had called Turner on the phone. Menzel did not collect the SIB in a particular store on March 9, 1982, nor did he call Turner. Menzel did not respond to this memorandum. (Jeff L. Turner's Sworn Statement, pars. 3(j) and 4; Exhibit D. thereto; H. Menzel's Deposition, August 18, 1986, p. 31; H. Menzel's Deposition...