903 F.2d 1515 (11th Cir. 1990), 89-3892, Baker v. Sears, Roebuck & Co.

Docket Nº:89-3892
Citation:903 F.2d 1515
Party Name:Margaret M. BAKER, Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee.
Case Date:June 26, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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903 F.2d 1515 (11th Cir. 1990)

Margaret M. BAKER, Plaintiff-Appellant,


SEARS, ROEBUCK & CO., Defendant-Appellee.

No. 89-3892

United States Court of Appeals, Eleventh Circuit

June 26, 1990

Page 1516

Edward S. Stafman, Tallahassee, Fla., for plaintiff-appellant.

Richard Smoak, Sale, Brown & Smoak, Panama City, Fla., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before TJOFLAT, Chief Judge, KRAVITCH, and ANDERSON, Circuit Judges.


The district court granted summary judgment in this age discrimination case because the plaintiff, the appellant here, failed to establish a prima facie case. Specifically, the plaintiff failed to prove that she was qualified for the employment position at issue. We AFFIRM the district court's judgment for the reasons stated in its dispositive order, which appears in the appendix.


VINSON, District Judge:


The plaintiff filed this action under Section 7(b) of the Age Discrimination in Employment Act (ADEA) [29 U.S.C. Sec. 626(b) ]. The only claim set out in the complaint is that the defendant, the plaintiff's current employer, discriminated against her due to her age. Pending is the defendant's motion for summary judgment. (Doc. 48)

I. Factual Background

The plaintiff began working with the defendant in 1947 at its store in Dothan, Alabama. After a brief hiatus in 1964-1965, she returned to work with the defendant at its store in Panama City, Florida. In 1973, she was transferred into the appliance department where she worked on commission. She was employed in the appliance department as a salesperson from 1973 to August 1986. During the plaintiff's last full year in the appliance department (1985), she earned over $45,000.

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In August 1986, at the age of 59, the plaintiff was transferred from her position in the appliance department to the furniture department, where she alleges she sustained a $15,000 annual loss of income. The reduction in salary is significant because of the defendant's pension plan. An employee of the defendant may retire at age 55 with 20 years of service. The plaintiff met these requirements approximately one year before her last transfer. According to the plaintiff, an employee's pension is based on the level of her last three years of salary. Thus, by continuing employment with the defendant, the plaintiff reduces her eventual retirement income.

The defendant is engaged in the business of, inter alia, manufacturing, selling, and distributing household goods. Such goods are manufactured, sold, transported, and otherwise produced for sale in interstate commerce. See 29 U.S.C. Sec. 630(h). At all times material to the claim, the defendant has had in its employ 20 or more employees for each working day in each of 20 or more calendar weeks in the preceding year. See 29 U.S.C. Sec. 630(b).

As a commission salesperson in the appliance department, the plaintiff was required to meet the defendant's sales quotas, not only for merchandise volume, but also for maintenance agreements (MAs). The latter are extensions on warranties for appliances sold at the time of purchase. The record indicates that MAs are more difficult to sell than the appliances themselves, and most salespersons with the defendant have difficulty meeting their MA quotas. Although the plaintiff registered the greatest dollar volume in merchandise and MA sales of all appliance department sales staff, she repeatedly failed to meet her MA quota. Beginning in approximately 1981, the plaintiff had been frequently counseled by her supervisors regarding her failure to sell her quota of maintenance agreements.

The defendant emphasizes the sale of maintenance agreements because it provides a much higher profit margin than does the sale of merchandise. The defendant imposes an MA quota on every salesperson, a fixed percentage of the total dollar volume of merchandise sold. Thus, the number required to be sold by each salesperson varies according to the total value of the merchandise that he or she sells. In 1985, the defendant applied a 6% quota to all salespersons in the Panama City store.

The defendant annually evaluates the performance of each employee, including an assessment of whether the 6% MA quota has been attained if applicable. Evaluations are recorded on the Sears Selling Employee Review Form (SSERF). The SSERF registers 10 areas of performance, including personal sales, sales expertise, and knowledge of merchandise. Each of these is measured on a 7-point scale, ranging from poor (1) to outstanding (7). It is accompanied by a page accommodating additional supervisor comments, employee comments on ratings, and an interview summary. This form is dated and then signed by the employee, the interviewer, and a second member of the rating committee. When necessary, a Memorandum of Deficiency Interview (MDI) outlining areas which require improvement is given to the employee and signed by both the employee and the interviewer. In addition, a date is assigned for the employee to be interviewed again. The planned follow-up is not mandatory, but can be set within a month.

On January 31, 1979, the plaintiff's SSERF was excellent overall. Her average rating was a six ("exceeds requirements of the job"), and she was rated "the top professional in the store in terms of merchandise sales." In addition, she was informed that she "must concentrate her efforts on selling MA's." (Defendant's Exhibit A) The record shows this to be the first time that improvement in selling maintenance agreements was suggested to the plaintiff.

On the plaintiff's April 3, 1981 SSERF, it was pointed out to her that she "needs to improve on trading up and selling M.A." (Def.Ex. B) Again in 1982, comments on the SSERF indicated that although there had been improvement, the plaintiff still had a problem selling maintenance agreements. The interview summary stated "[w]e have counseled at length with [the

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plaintiff] concerning the sell [sic] of maintenance agreements and meeting standards. She has shown marked improvement in this area but has yet to consistently maintain standard." (Def. Ex. C)

In March, April, and June of 1983, MDIs recorded the defendant's concern over the plaintiff's repeated failure to reach the quota for the sale of maintenance agreements. (Def. Exs. D-F) The June MDI stated that "[i]f she fails to accomplish this, action will be taken which will involve removing her from these divisions." In 1984, the format of the SSERF was modified to include space specifically requesting evaluation of maintenance agreements. Again, the plaintiff was warned that she needed to continue to improve her selling of maintenance agreements. Also, not inconsistent with previous reports, she was rated the best in sales.


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