Civil Action No. 09-64-dlb Don Schmidt v. Am. Retail Corp. D/b/a Watson's

Decision Date08 December 2010
Docket NumberNo. 2:09-cv-00064-DLB-JGW,2:09-cv-00064-DLB-JGW
PartiesCIVIL ACTION NO. 09-64-DLB DON SCHMIDT PLAINTIFF v. AMERICAN RETAIL CORPORATION d/b/a WATSON'S DEFENDANT
CourtU.S. District Court — Eastern District of Kentucky
MEMORANDUM OPINION & ORDER

This action arose after Plaintiff Don Schmidt was discharged from his position as general manager of Defendant American Retail Corporation's (ARC) St. Louis store. Plaintiff claims he was discharged because of his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1), the Missouri Human Rights Act, Mo. Rev. Stat. § 213.055, and Missouri public policy.1 Defendant responds that it discharged Plaintiff because his tenure as general manager was "just not working out," as evidenced by multiple complaints from multiple managers of the St. Louis store. (Doc. # 26-2 at 113). The Court has jurisdiction over the ADEA claim pursuant to that Act, 29 U.S.C. § 626(c)(1), as well as 28 U.S.C. §§ 1331, 1332. The Court has supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367.

This matter is before the Court on Defendant ARC's Motion for Summary Judgment. (Doc. # 24). Oral argument on the motion was conducted on December 2, 2010. Plaintiff Don Schmidt was represented by Tod J. Thompson and Randolph H. Freking and Defendant ARC was represented by Wijdan Jreisat. The matter has been fully briefed (Docs. # 24, 29, 43) and is ripe for review. For the reasons that follow, Defendant ARC's Motion for Summary Judgment will be granted.

I. BACKGROUND

Plaintiff was hired by Watson's of Cincinnati in 1985 as a salesperson and was promoted to sales manager two years later. In 2000, Plaintiff was named the general manager of the Louisville franchise, but was unhappy in that position, and four months later returned to the Cincinnati store. Plaintiff worked as a salesperson in Cincinnati for a little over three years before becoming the service department manager in February 2004. Defendant ARC purchased Watson's of Cincinnati on December 31, 2006 and hired Plaintiff to remain in his capacity as the service manager. At the time, Plaintiff was 54 years old.

In a late 2007 meeting, Watson's franchise owners decided to terminate the franchise agreement with the St. Louis store, which had suffered declining sales because of management troubles. At the time of that meeting, ARC planned to purchase the St. Louis store. At the same meeting, the franchise owners agreed that Erik Mueller, ARC's President and owner, would discuss with Plaintiff the possibility of managing the St. Louis store.

Mueller later explained that Plaintiff was a candidate, and ultimately the choice, for general manager because he "possessed [the] skills and qualifications" and had "years of experience" at Watson's. (Doc. # 35 at 37). Mueller also stated that he was somewhat concerned about Plaintiff's management style and temperament, which made him a less-than-ideal candidate. Ultimately, Mueller offered Plaintiff the job and after a few weeks, Plaintiff accepted. In January 2008, Plaintiff took over as general manager of the St. Louis store, reporting directly to Mueller.

One month later, Mueller and franchise owners from Louisville and Dayton visited the St. Louis store. Mueller later stated that he was "unsettled" by some observations during the visit. (Doc. # 24-1 ¶ 11). While Mueller and the other franchise owners cleaned and organized the store, Plaintiff "spent most of his time in [his] office." (Doc. # 35 at 18). Another "big irritant" was that Mueller had to instruct Plaintiff to answer the phones, which Plaintiff only did for about five minutes, before ceasing. (Doc. # 35 at 69). Mueller subsequently explained to Plaintiff, "in a mentoring kind of" way, how the store's appearance and operations should be improved. (Doc # 35 at 20).

Also during the February visit, Mueller reported to Plaintiff that a manager in the St. Louis store had complained that Plaintiff's management style was "my way or no way" and advised Plaintiff to be more low key. (Doc. # 26-1 at 88). Plaintiff disagreed with that assessment, saying, "I never had managed like that." (Doc. # 26-1 at 90).

Plaintiff and Mueller communicated several times after the February visit. During an April 2008 conversation, Plaintiff expressed his reservations about buying a house in St. Louis because sales at the store remained weak. According to Plaintiff, Mueller encouraged him to "[g]o for it" because although sales were down "your expenses are way down too, so everything is going fine." (Doc. # 26-1 at 97-98). Mueller testified that he only told Plaintiff that "as long as you don't do something to get yourself in trouble with your employment... you should be fine." (Doc. # 35 at 128).

Mueller visited St. Louis again in April 2008 and told Plaintiff that the inside of the store looked better than it ever had, but that the outside was still dirty. During this second visit, Mueller told Plaintiff that he was still receiving complaints from St. Louis managers that Plaintiff had adopted a "my way or the highway" management style. (Doc. # 26-1 at 49). Plaintiff later recalled that he did not "know where that was coming from" because "I wasn't managing in that way." (Doc. # 26-2 at 101-02).

During the April 2008 trip, Mueller observed a management meeting during which he perceived Plaintiff to interrupt and talk down to the other managers, saying things like, "that's not the way we do it around here." (Doc. # 35 at 84). Mueller was disappointed by this meeting because he had previously instructed Plaintiff that he would have to "rally the troops" in St. Louis by being a "very positive influence on them." (Doc. # 24-1 ¶ 15).

Mueller was also upset that Plaintiff did not lead all the sales training meetings. Mueller testified that he "told Don specifically, 100 percent, I want you doing all the training meetings, because you have more expertise than these guys do." (Doc. # 35 at 117). Plaintiff initially allowed others to run the meetings in an attempt to be inclusive and counteract the resentment he sensed as an outsider who was hired at the expense of someone being promoted from within. Near the end of his employment, however, Plaintiff said that he "ran everything" and did not allow others to run sales meetings. (Doc. # 26-1 at 75). Mueller was nonetheless upset that Plaintiff "wasn't doing them all the time" because "that was surely the expectation; he knew it, I knew it." (Doc. # 35 at 30).

About the same time as the April 2008 trip, Mueller received reports from managers that Plaintiff "spent an inordinate amount of time sometimes as much as half of the work day shut in his office, often locking the door behind him when he exited the office." (Doc. # 24-1 ¶ 17). Mueller communicated these complaints to Plaintiff, who disagreed, because "I was on the floor when I was supposed to be on the floor [ ] [and] I was in my office when I needed to be in my office." (Doc. # 26-2 at 105).

St. Louis staff also complained that Plaintiff refused to assist with certain responsibilities, despite Mueller's instruction to Plaintiff to "get down, you know, in the basic work with [the employees]." (Doc. # 24-1 ¶ 15). Mueller recalled that when he asked complaining staff members for specific examples, Rick Wilson, the warehouse manager, explained that while the managers and staff worked together to prepare for the biggest sales event of the year, Plaintiff remained in his office most of the day. (Docs. # 24-1 ¶ 18; 38 at 3). When Plaintiff emerged from his office, he was unwilling to get sodas for the other employees, explaining that a store manager in Cincinnati would not do that. Wilson's testimony contradicts Mueller's account. Wilson testified that he "did not speak on anybody's behalf about anything" to Mueller, but did inform Mueller that morale was low and that he should visit and talk to the managers individually about their specific complaints. (Doc. # 38 at 26).

Mueller also identified complaints from Rob Caudillo, a sales manager, and Sheila Leonard, the service manager, as leading to Plaintiff's discharge. Mueller recounted an array of complaints from Cuadillo, including Plaintiff's failure to lead by example, to be a team player, and accusations that he created a negative sales staff culture. Mueller also fielded complaints from Leonard that Plaintiff was demeaning and condescending to her and other employees and had held up a toddler's-size company tee-shirt and said that he wanted to see her in it. Though Plaintiff denied making such a comment, he testified that Mueller told him that Leonard had complained about the incident.

Leonard eventually told Mueller that she could not work for Plaintiff. She was not the only manager to express reservations about remaining at the St. Louis store if Plaintiff remained its general manager. Gene Darter, a sales manager, was so dissatisfied with Plaintiff's management that he "began to explore other employment opportunities." (Doc. # 24-3 ¶ 7). Mueller stated in his affidavit that by the late summer and early fall of 2008 he believed that keeping Plaintiff could lead to him "los[ing] key managers (and possibly the store itself)." (Doc. # 24-1 ¶ 29).

By July 2008, the complaints had built up to the point that Mueller believed that there was a "major issue, and firing [Plaintiff] was one of the options." (Doc. # 35 at 126). Mueller conceded that he did not communicate to Plaintiff the possibility that he would be terminated, instead believing that his previous admonitions were sufficient warning. By late July or early August 2008, Mueller had decided to terminate Plaintiff, but did not tell him because he wanted to be sure that the store was in a "healthy position" and the "right person" was in place to make such a significant transition. (Doc. # 35 at 139). Mueller also held out hope that Plaintiff would change his management style and that the St. Louis managers...

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