Hermeling v. Montgomery Ward & Co., Inc.

• Decision Date: 06 April 1994
• Docket Number: No. 3-93 Civ. 442.,3-93 Civ. 442.
• Citation: 851 F. Supp. 1369
• Parties: William HERMELING, Plaintiff, v. MONTGOMERY WARD & CO., INCORPORATED, Defendant.
• Court: U.S. District Court — District of Minnesota

851 F. Supp. 1369

William HERMELING, Plaintiff, v. MONTGOMERY WARD & CO., INCORPORATED, Defendant.

No. 3-93 Civ. 442.

United States District Court, D. Minnesota, Third Division.

April 6, 1994.

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The Cooper Law Firm by Stephen W. Cooper, Minneapolis, MN, for plaintiff.

Doherty, Rumble & Butler Professional Ass'n by Elizabeth Hoene Martin, and Peter E. Hintz, Saint Paul, MN, for defendant.

ORDER

ALSOP, Senior District Judge.

This matter came before the Court on January 28, 1994, on the defendant's motion for summary judgment. In this employment discrimination action, William Hermeling alleges that Montgomery Ward & Co., Incorporated ("Montgomery Ward") discriminated against him on the basis of his age and disability. Montgomery Ward argues that it is entitled to summary judgment because each of Hermeling's claims fail as a matter of law.

I. BACKGROUND

The defendant, Montgomery Ward, operates department stores across the country. In each store, groups of departments are managed by group merchandisers, who, in turn, are supervised by the store manager. Stores in geographic proximity are grouped into management units called areas and assigned an area manager. Areas are then grouped into territories. Each territory has a territory operations manager and a territory vice president. Montgomery Ward's corporate headquarters are located in Chicago.

The plaintiff, Hermeling, began working for Montgomery Ward in 1968. At all times relevant to this lawsuit, Hermeling was working as the "four seasons group merchandiser" at the Montgomery Ward store in the Rosedale Shopping Center in Roseville, Minnesota (the "Roseville store"). The Roseville store is part of the St. Paul area, which previously was one of nine areas in the east territory.

In late December of 1990 or early January of 1991, Montgomery Ward's senior management in Chicago decided that store expenses needed to be reduced. The store operations expense control department and its manager, William Bass, were responsible for suggesting how these expenses could be cut. In January of 1991, Bass recommended eliminating each of following positions on a nationwide basis: all "four seasons group merchandisers," all "third apparel group merchandisers," all "department 24 specialty managers," all "customer accommodations center managers," and all "operations managers." These recommendations were approved by the president of store operations, Dick Bergal.

Bass's department then proceeded to implement these recommendations by informing the territory operations managers of the necessary reductions, which were to be accomplished by early February of 1991. Territory operations managers were able to seek exceptions to the reductions on an individual basis based upon the needs of their operations. At all times relevant to this lawsuit, Doug Rau was the territory operations manager for the east territory. By January 21, 1991, eighty-five of the one-hundred-and-two national four seasons group merchandiser positions had been eliminated. Seventeen four seasons group merchandiser positions remained, due to exceptions requested by territory operations managers. Hermeling's position at the Roseville store was one of these seventeen remaining positions.

During the summer of 1991, Montgomery Ward's senior management determined that additional reductions were needed. Bass's department made further recommendations, including the elimination of the remaining four seasons group merchandisers. These recommendations were also accepted, and a deadline of August 9, 1991 was established for their implementation. Once again, territory operations managers were able to seek exceptions based upon the needs of a specific store. Of the seventeen remaining four seasons group merchandiser positions, fourteen were eliminated in the second round of cuts. Hermeling's position at the Roseville store was among those eliminated.

On July 30, 1991, the Roseville store manager, William Marcinkus, met with Hermeling to inform him that his position had been eliminated. At that time, Hermeling was fifty-eight years old¹ and was earning approximately $28,700 per year. At this meeting, Marcinkus gave Hermeling the option of accepting either a new position as a commissioned sales associate or a severance package. On August 9, 1991, Hermeling accepted the severance package and left the company.

While he was employed at Montgomery Ward, Hermeling experienced a variety of health problems. In May of 1991, Hermeling began treatment for a blood condition that was eventually identified as anemia. Hermeling's doctor considered this condition "resolved" as of August 8, 1991, the day before Hermeling accepted his severance package and left Montgomery Ward.

Hermeling also has a history of migraine headaches referred to as "cluster headaches." At times, the severity of these headaches forced Hermeling to leave the sales floor and lie down. Hermeling last experienced these headaches in July of 1989.

On July 11, 1991, Montgomery Ward hired Melissa Skiba as a customer service training associate. Skiba, who was twenty-one years old at that time, was scheduled to begin work on July 24. Before that date, however, she was told that the customer service training program was being discontinued. Instead, Skiba was offered a position as the home store sales manager, a non-exempt position, in which she was supervised by the home store group merchandiser.

Two and a half weeks after Skiba began working at the Roseville store as the home store sales manager, the home store departments were rearranged. Skiba's position was eliminated, and she was offered the position of soft home manager, a salaried, management position with a salary of $19,000 per year. In this position, Skiba was responsible for several departments that previously had been part of Hermeling's four seasons group.

Hermeling brought this action on June 21, 1992. In his complaint, Hermeling asserts claims for age discrimination in violation of the Minnesota Human Rights Act (Count 1), disability discrimination in violation of the Minnesota Human Rights Act (Count 2), negligent supervision (Count 3), negligent training (Count 4), and breach of contract (Count 5).

On September 25, 1992, the magistrate judge issued a pre-trial schedule that established deadlines for filing various motions and for disclosing expert witnesses and their opinions. The pre-trial schedule required Hermeling to disclose his expert witnesses, "the subject matter on which the expert is expected to testify," and "the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion" by June 1, 1993. Montgomery Ward was required to disclose this same information by July 1, 1993. The pre-trial order also established a September 1, 1993 deadline for discovery motions and a November 1, 1993 deadline for dispositive motions. On June 8, 1993, the parties agreed to extend the deadlines for expert witness disclosures to October 1, 1993 for Hermeling and November 1, 1993 for Montgomery Ward. This agreement was not reduced to a written stipulation and proposed order, as good practice would normally dictate.

On August 31, 1993, one day before the deadline for discovery motions, Hermeling's counsel brought a motion to compel additional discovery. This motion related to written interrogatories and document requests to which Montgomery Ward had originally responded on January 27, 1993. Montgomery Ward had also updated its responses in February, May, and July of 1993. At no time prior to bringing the motion to compel did Hermeling's counsel complain about Montgomery Ward's previous responses. Following a hearing on October 12, 1993, the magistrate judge granted Hermeling's motion to compel by order dated November 15, 1993.

Oral argument on this motion was originally scheduled for November 5, 1993.² Under this district's local rules, Montgomery Ward's motion papers and supporting memorandum were due on October 8, 1993, one week after the stipulated deadline for disclosing expert witnesses.³ On October 12, 1993, Hermeling's counsel informed Montgomery Ward that Ross Azevedo, an expert witness, was "expected to testify on behalf of Hermeling by performing a statistical analysis of Montgomery Wards sic employment practices." (Martin Aff. Ex. E.) This disclosure did not set forth the nature of Azevedo's opinions. Instead, the disclosure simply stated that Azevedo would base his testimony on information that had been provided and on outstanding discovery that had yet to be provided.

II. ANALYSIS

A. The Summary Judgment Standard

The Supreme Court has held that summary judgment is to be used as a tool to isolate and dispose of claims or defenses that are either factually unsupported or based on undisputed facts. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986); Hegg v. United States, 817 F.2d 1328, 1331 (8th Cir.1987). Summary judgment is proper, however, only if examination of the evidence in a light most favorable to the non-moving party reveals no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986).

The test for whether there is a genuine issue over a material fact is two-fold. First, the materiality of a fact is determined from the substantive law governing the claim. Only disputes over facts that might affect the outcome of the suit are relevant on summary judgment. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512. Second, any dispute over material fact must be "genuine." A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. Id. It is the non-moving party's burden to demonstrate that there is evidence to support each essential element of his...