Pittman v. General Nutrition Corp.
| Citation | 515 F.Supp.2d 721 |
| Decision Date | 28 March 2007 |
| Docket Number | Civil Action No. H-04-3174. |
| Parties | Tony PITTMAN and Al Demeke, Plaintiffs, v. GENERAL NUTRITION CORP., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Anthony C. Ofodile, Ofodile & Assoc PC, Okechukwu Valentine Nnebe, Nnebe & Nnebe, Brooklyn, NY, Ike N.A. Waobikeze, Esq., Waobikeze & Associates, P.C., Houston, TX, for Plaintiffs.
Merritt B. Chastain, III, Gardere Wynne Sewell, Houston, TX, for Defendant.
This is an employment discrimination and retaliation case, filed by Tony Pittman ("Pittman") and Al Demeke ("Demeke") against General Nutrition Corp. ("GNC") under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Pending before the Court is Defendant GNC's Motion for Summary Judgment ("Defendant's Motion") [Doc. # 103].1 Plaintiffs have filed their own Motion for Summary Judgment on the Claim of Disparate Impact ("Plaintiffs' Motion") [Doc, # 105].2 The Motions are ripe for adjudication. The Court has considered the parties' submissions, all matters of record, as well as applicable legal authorities. The Court concludes that Defendant's Motion for Summary Judgment should be granted in part and denied in part and Plaintiffs' Motion for Summary Judgment should be denied.
Many of the facts in this case are hotly disputed. Plaintiffs and Defendant accuse each other not only of misconstruing key events, but of lying under oath and fabricating evidence to deceive the Court. The following facts are drawn from the parties' submissions and are, unless otherwise described, uncontested.
GNC is a retailer of nutritional supplements such as sports nutrition products diet products, vitamins, minerals, and specialty supplements. Its retail stores are organized into three divisions, each of which relies on a hierarchy of managers and executives. There are several layers of supervisors at individual stores.3 Above each store's local management, in order of rank, are Regional Sales Directors ("RSDs"), Divisional Sales Directors ("DSDs"), and Divisional Vice Presidents ("DVPs"). RSDs manage territories consisting of approximately two to four dozen stores. RSDs also are responsible for the daily operations of corporate retail locations and for working with and developing their store managers for advancement. DSDs, the next higher rung on the management ladder, are responsible for the supervision and direction of between ten and fifteen RSDs as well as corporate development on a broader scale than that of the RSDs. GNC refers to DSDs as highlevel managers entrusted with a great deal of responsibility and deems their performance "critical" to the proper execution of GNC's business plan. Every DSD is assigned to one of three geographic divisions, each of which is headed by a DVP. DVPs are responsible directly to GNC's corporate headquarters.
Plaintiffs' respective claims are intertwined, but an understanding of Demeke's claims is dependent upon knowledge of Pittman's claims and the events giving rise to them. Thus, the Court describes the facts pertaining to Pittman's claims first and then turns to matters particular to Demeke.
Pittman worked for many years, and Demeke still works, in GNC's Division II. GNC hired Pittman as a "management trainee" in 1984.4 He was hired as, and was, an at-will employee throughout his time with the company. In late 2001, GNC terminated all of its Division II officers except Pittman.5 Pittman at that time had been promoted to "Division Franchise Officer," and was the most senior manager remaining in Division II. GNC tapped him to serve as Division II DVP until the position could be filled permanently.6 Pittman's term as DVP lasted roughly six months, after which he resumed his franchising duties. In November 2002, Pittman was appointed a Division II DSD.7
At some point in 2003, GNC's Division II DVP stepped down and the company began searching for a replacement. A letter was sent to all the DSDs informing them that the position was open and inviting them to submit an application. Pittman did not respond. He testified at his deposition that he had just moved and was still settling into his new location and new position as DSD. The parties present vastly different narratives about the events following this letter inviting applications.
According to Pittman, he attended a meeting in Pittsburgh with other DSDs and DVPs. Present at that meeting were several high-level GNC executives, including Tom Dowd, the Senior Vice President of Stores. Dowd allegedly confirmed to Pittman that he was GNC's choice for the DVP position. Pittman asserts that GNC flew him back to Pittsburgh on September 25, 2003, "to finalize his promotion to DVP."8 He recounts a conversation he had with Eileen Scott, GNC's Senior Vice President of Human Resources, while in Pittsburgh. She congratulated him, he contends, and asked whom he would promote to fill the vacancy left by his promotion. Pittman indicated his intent to select Demeke for the DSD slot. According to Pittman, Scott agreed that Demeke was overdue for advancement. After briefly speaking to and being congratulated by Joseph Fortunato, another GNC executive, Pittman returned to Dowd's office. Dowd had learned from Scott that Pittman intended to promote Demeke, and expressed disapproval.9 Pittman left Pittsburgh without any offer in writing, but believed he had been promoted. He submitted affidavits from a fellow Division II DSD and a member of his own support staff attesting that he had called them from the Pittsburgh airport to inform them of his promotion.10
Ultimately, Pittman did not receive the promotion. GNC offered the DVP position to Darryl Green, a past Division II DVP who had been terminated in 2001 for "Poor Work Performance."11 On October 28, 2003, Green accepted the offer and returned to GNC.
According to GNC, Dowd was uninterested in Pittman as a candidate for DVP, and only interviewed him at the behest of a senior GNC executive who believed that Pittman deserved consideration "out of respect for [Pittman's] tenure with the company."12 According to Dowd's deposition, he and another executive interviewed Pittman in Pittsburgh but were unimpressed by his demeanor and accomplishments; Dowd denied that Pittman was offered the promotion.13
Scott also interviewed Pittman, and confirmed in her deposition that he "hadn't interviewed very well" with her, and that he "didn't seem prepared, he didn't seem serious."14 Scott did discuss Pittman's plans to promote Demeke to fill Pittman's position if he were promoted, but she characterized this as a possibility that arose during a job interview rather than a concrete plan set down following a job offer.15 A month or so afterward, Scott interviewed Green. Scott explained that Green had originally been fired due to "a personality conflict with the senior vice president of marketing and retail sales," and that he "interviewed very well" for the position in 2003.16
GNC denies that anyone in Pittsburgh told Pittman that he would be promoted. GNC also denies that Pittman's intention to promote Demeke was a factor in its decision not to promote Pittman; Scott could not recall even communicating Pittman's comment regarding Demeke to Dowd or Fortunato,17 and Dowd denied discussing the matter with Pittman.18 GNC points to Pittman's sworn statement to the EEOC, which discusses his version of the events in Pittsburgh but omits any mention of a conversation with Dowd about Pittman's proposal to promote Demeke.19 Pittman's EEOC statement characterized Dowd as "nervous and upset" after Pittman explained that he planned to promote Demeke, but Pittman did not describe in that statement the details of the conversation he later included in his deposition testimony.20 GNC also highlights the deposition of Pittman's wife, Ann, in which she recounted her husband's description of his conversation with Dowd. GNC points out that her account omits any mention of the explicit warnings Dowd supposedly gave Pittman about promoting Demeke. Instead according to Mrs. Pittman, her husband merely characterized Dowd as "cold and distant like he suddenly had things to do."21
On March 18, 2004, Pittman filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that GNC "discriminated against [me] because of my race, White, and in retaliation for my recommendation to promote an African-American."22 Pittman asserted that he had been promoted to Division II DVP on or around September 25, 2003, and that the promotion was unlawfully rescinded on October 1. The EEOC charge makes no mention of any harassment or discrimination other than the alleged rescission of his promotion. The EEOC issued Pittman a Right to Sue Notice23 and he timely filed this lawsuit jointly with Demeke on August 8, 2004.
Pittman describes a period of harassment that followed GNC's decision to hire Green as its Division II DVP. According to Pittman, for more than a month after DVP Green's arrival, Green called Pittman daily at 6:00 a.m. to see if he was awake and ask unimportant questions about the previous day's business.24 Pittman asserts that his performance evaluations suffered once Green was hired and Green became aware of Pittman's grievances.25 Pittman claims that Dowd also harassed him by pointedly ignoring him at meetings and ordering Green to closely scrutinize Pittman's excuse for missing a particular business meeting.26 The alleged harassment culminated in Pittman's termination in February 2005, which he claims was in retaliation for his protected activities. The parties again present substantially incompatible versions of the events surrounding GNC's decision to fire Pittman.
There is no dispute that GNC, as a purveyor of health foods and dietary...
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