Ascare v. Mastercard Int'l Inc.
| Decision Date | 16 August 2012 |
| Docket Number | Case No. 4:10CV1979 JCH |
| Parties | DON ASCARE, Plaintiff(s), v. MASTERCARD INTERNATIONAL INCORPORATED d/b/a MasterCard Worldwide, Defendant(s). |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Defendant's First Motion for Summary Judgment (Merits) ("First Motion for Summary Judgment," ECF No. 58) and Defendant's Second (Alternative) Motion for Summary Judgment (Partial/Remedies) ("Second Motion for Summary Judgment," ECF No. 63), both filed on May 25, 2012. Both motions are fully briefed and ready for disposition.
Plaintiff Don Ascare ("Plaintiff" or "Ascare") was hired by Defendant MasterCard International Incorporated ("Defendant" or "MasterCard") to serve in the position of Senior Vice President of Human Resources in O'Fallon, Missouri, on June 5, 2005. (Complaint, ECF No. 6, ¶ 5). Plaintiff was terminated by Defendant on May 27, 2010. (Defendant's Statement of Uncontroverted Material Facts - First Motion for Summary Judgment ("Defendant's First SUMF"), ECF No. 59, ¶ 95).
Plaintiff and Defendant dispute the reason for Plaintiff's termination. According to Defendant, Plaintiff was repeatedly told by his supervisors during his mid-year and year-end performance reviews that his "candid and direct style was contrary to the MasterCard culture," that Plaintiff should "be a little more sensitive to the current culture in place," and that Plaintiff should "try to be a little bit more sensitive to folks." (Defendant's First SUMF, ¶¶ 24, 30). Plaintiff's performance reviews also noted that he is "outspoken" and "needs to reach out earlier and more frequently to others," that Plaintiff "may be viewed as 'running over' others and not listening," and that "he should sharpen his listening skills and demonstrate openness to the viewpoints of others." (Id., ¶¶ 39, 40, 44). Plaintiff's performance reviews consistently noted he "delivered results" but that "the 'how' is 'not working.'" (Id., ¶ 41).
In February 2010, Jeff Villmer, a Business Leader in MasterCard's Office of Workforce management, made a phone call to MasterCard's ethics hotline to file a complaint against Plaintiff. (Id., ¶¶ 7, 9, 45, 52, 53). Another MasterCard employee had told Villmer several days earlier that Plaintiff recently called Villmer a "fucking weasel" and was unsupportive of a training event Villmer was setting up. (Id., ¶¶ 10, 45, 46). Villmer's complaint was investigated by Marianne Fogarty, an employee of the third party responsible for operating the ethics hotline, and Fogarty interviewed Villmer and several other MasterCard employees as part of the investigation. (Id., ¶¶ 14, 55, 58, 63, 68, 73). One employee told Fogarty about inappropriate comments she heard Plaintiff make while his office door was open, including one comment of a sexual nature, another comment regarding Plaintiff being drunk and throwing up everywhere, and comments regarding layoffs and employee bonuses. (Id., ¶¶ 65, 66). Another employee told Fogarty that she had also heard Plaintiff call Villmer a "fucking weasel" on a different occasion, and that Plaintiff told other employees during Plaintiff's first month at MasterCard that he was a bully who was going to implement a "bigshakeup." (Id., ¶¶ 69, 70). Yet another employee told Fogarty that she thought many people were intimidated by Plaintiff's management style and offended by the way he spoke about people. (Id., ¶ 76).
Fogarty and her supervisor informed Plaintiff in person about the complaint in mid-May 2010. (Id., ¶ 81). Fogarty and her supervisor prepared a final report containing a summary of the interviews they conducted, including the results of their interview with Plaintiff, and discussed their findings with Plaintiff's supervisors. (Id., ¶¶ 87, 88). Plaintiff's supervisors met with Plaintiff on May 27, 2010, and informed him that his employment with MasterCard was terminated. (Id., ¶ 95). Plaintiff was told he was being terminated because he had lost confidence in management and management had lost confidence in him. (Id., ¶ 97). In Plaintiff's last full year as a Human Resources executive, his W-2 wages equaled $436,758. (Statement of Uncontroverted Facts, Filed in Conjunction with Defendant's Second (Alternative) Motion to Summary Judgment (Partial/Remedies) ("Defendant's Second SUMF"), ECF No. 65, ¶ 3).
(Id., ¶ 11). In 2010, after his termination, Plaintiff played poker at least 50 to 60 hours per week and sometimes played significantly more hours. (Id., ¶ 14). In 2010, after his termination, Plaintiff averaged 10 to 15 hours per week at sporting clays shooting. (Id., ¶ 15). For 2010, Plaintiff reported to the Internal Revenue Service ("IRS") that he lost $53,910.00 in his poker-playing/shooting ventures. (Id., ¶ 16).
During 2011, Plaintiff devoted 50 to 60 hours per week, and sometimes significantly more, to playing poker. (Id., ¶ 18). During 2011, since Plaintiff was focusing more on playing poker, he devoted fewer hours (3 to 5 hours per week) to sporting clays shooting. (Id., ¶ 19). For 2011, Plaintiff reported to the IRS that he lost $23,162.00 in his poker-playing/shooting ventures. (Id., ¶ 20).
During 2012, Plaintiff diminished his poker-playing in order to work on this litigation. (Id., ¶ 22). Plaintiff was spending 20 to 25 hours per week playing poker in 2012. (Id.). Plaintiff continued to spend 3 to 5 hours per week at sporting clays shooting. (Id., ¶ 23). Plaintiff continued to lose money playing poker and shooting sporting clays in 2012. (Id., ¶ 24).
According to Plaintiff, he was rated "successful," "high successful," or "exceptional" in all of his annual performance reviews. (Plaintiff's Statement of Additional Uncontroverted Material Facts that Preclude Summary Judgment ("Plaintiff's First SUMF"), ECF No. 82, ¶¶ 2-6). Plaintiff was rated "high successful" in his 2009 performance review. (Id., ¶ 2). Plaintiff asserts he was terminated by MasterCard for advising his superiors and other MasterCard management employees that the company had been misclassifying leased employees, failing to withhold and pay Missouri income taxes for an employee that was improperly reported as an employee of MasterCard's office in Miami, and failing to withhold and pay New York state income taxes for employees that worked more than twelve days per year in New York. (Complaint, ¶¶ 8, 14, 15, 19). Plaintiff also asserts he was terminated by MasterCard for ignoring his supervisor's instructions to delete an email containing a risk analysis that he had prepared and sent to her concerning the misclassification of leased employees. (Id., ¶¶ 9, 10, 11, 24).
During Plaintiff's employment with MasterCard, when an employee worked in more than one state, MasterCard typically withheld state income taxes from the state that was the employee's primary work location. (Defendant's First SUMF, ¶ 140). George Spies was a MasterCard employee first responsible for running the Global Debit Platform and later responsible for running Integrated Process Solutions. (Id., ¶ 141). When Plaintiff began his employment at MasterCard, Spies had an office in O'Fallon, Missouri, and owned a home in St. Louis. (Id., ¶ 142). Spies sold his house in Missouri in December 2006 and moved to Fort Meyers, Florida, in January 2007. (Id., ¶¶ 142, 143). In early December 2006, Spies asked Plaintiff and Plaintiff's supervisor if they would change his income-tax withholdings from Missouri to Florida. (Id., ¶ 148).
Plaintiff told his supervisor that he believed Spies's request was not legal, as Spies should be on the Missouri payroll as long as his primary location was in Missouri and he was primarily working in Missouri. (Id., ¶ 149). Plaintiff's supervisor ultimately instructed Plaintiff to make the change that Spies requested, and although Plaintiff believed it was an incorrect decision, Plaintiff agreed to make the change. (Id., ¶¶ 151, 152). When Plaintiff's supervisor was replaced in early 2008, Plaintiff had conversations with his new supervisors regarding Spies's payroll change, and Plaintiff stated that he thought the change was improper. (Id., ¶¶ 159, 161).
In 2006, after receiving his W-2 Form from MasterCard, Plaintiff raised the subject of New York taxes with one of his supervisors. (Id., ¶ 166). Plaintiff asked his supervisor why MasterCard was not withholding New York state taxes when he was working more than "12, 15" days in New York. (Id., ¶ 167). Plaintiff's supervisor said she did not know why New York taxes were not being withheld and told Plaintiff she would get back to him. (Id., ¶ 168).
Plaintiff raised the subject of withholding of New York state income taxes in December 2009 during a discussion with John Pagano, the Business Financial Officer of Global Human Resources. (Id., ¶¶ 6, 169). Pagano had mentioned to Plaintiff in casual conversation that the State of New York was performing an audit on travel and expense reports. (Id., ¶ 170). Plaintiff asked Pagano if he had any concerns about Missouri employees' travel and expense reports when there were several Missouri employees spending a considerable amount of time in New York and New York state taxes were not being withheld from them. (Id., ¶ 171). At this time, Plaintiff did not raise the New York state tax subject with his current supervisors or with anyone else at MasterCard. (Id., ¶¶ 173, 174, 175). Plaintiff asserts,...
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