Samuelson v. Durkee/French/Airwick

• Decision Date: 08 February 1991
• Docket Number: No. S89-245 (RLM).,S89-245 (RLM).
• Citation: 760 F. Supp. 729
• Parties: Barbara A. SAMUELSON, Plaintiff, v. DURKEE/FRENCH/AIRWICK, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

760 F. Supp. 729

Barbara A. SAMUELSON, Plaintiff, v. DURKEE/FRENCH/AIRWICK, et al., Defendants.

No. S89-245 (RLM).

United States District Court, N.D. Indiana, South Bend Division.

February 8, 1991.

Martin W. Kus, LaPorte, Ind., for plaintiff.

Eric Zalud, Howard Levy, Maynard Buck, Cleveland, Ohio, Roger Benko, South Bend, Ind., for defendants.

MEMORANDUM AND ORDER

MILLER, District Judge.

Plaintiff Barbara Samuelson alleges that her former employer and supervisor discharged her because of her sex and age and in retaliation for her earlier claim of sex discrimination. She relies on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 623(a). Defendants Durkee/French/Airwick ("Durkee") and Thomas Havrilesko seek summary judgment on all claims. For the reasons that follow, the court concludes that the defendants are entitled to summary judgment on the claims of sex discrimination and retaliatory discharge, but that Ms. Samuelson is entitled to a trial on her ADEA claim.

I. Factual Background

Ms. Samuelson began her employment with Durkee on August 20, 1979 as a sales representative. She was the first woman Durkee had hired in her region. Before that, she worked for a year as a sales and servicing representative for another company, servicing as many as fifty-five stores. By 1979, she had worked in the grocery business for thirteen years.

As a Durkee sales representative, Ms. Samuelson sold and ordered spices and sauces, arranged displays for these products, and put such products on the shelves at various grocery stores on her route, which covered portions of northwest Indiana and included both large grocery store chains and small grocer businesses. Durkee sales representatives completed weekly reports, met with the entire sales group on a quarterly basis and for specially-convened meetings, and were formally evaluated on an annual basis. Supervisors occasionally would visit stores while their representatives serviced the grocers.

Mr. Havrilesko became Ms. Samuelson's supervisor in February, 1984, replacing Henry Krafft. Before that, Mr. Havrilesko had been part of Ms. Samuelson's sales group, which then also included Bob Averill, Lawrence Kuskye, Jack Imer, and Jeffrey Wesley. Mr. Havrilesko now works as a sales specialist for Durkee/French, a lesser paid job than that of his former position of sales supervisor.

Durkee first terminated Ms. Samuelson in May, 1984, purportedly as part of a sales force reduction. She filed sex discrimination charges against Durkee with the Equal Employment Opportunity Commission following her dismissal. Durkee and Ms. Samuelson entered into a settlement agreement in relation to those charges, as part of which she returned to her position as a sales representative with Durkee in December, 1984, and information concerning the facts giving rise to her discharge or the EEOC filing were to be removed from her employment records. Upon her return, Ms. Samuelson was assigned some of the same grocers and additional ones in other locations.

Reckitt & Coleman, Inc. ("R & C") purchased Durkee in early 1987. R & C had owned R.T. French ("French"), a competitor of Durkee, since 1926. Following the corporate purchase of Durkee, R & C combined the business of Durkee and French ("Durkee/French"). Former French employee Greg Sacco headed a task force to streamline sales groups in the newly formed Durkee/French division of R & C. After evaluating the employees working for Durkee and French in the Chicago and northwest Indiana areas, Mr. Sacco determined that the areas were over-staffed by seven service and direct sales representatives.

In May, 1987, Sacco formed a group of managers to determine which sales representatives should be eliminated from the Chicago and northwest Indiana areas. The group included Evan Fotopulos and Thomas Havrilesko from Durkee and Barry Riffle and Arnie Koontz from French. Mr. Sacco did not instruct the group as to the number of positions to be eliminated, but simply requested information from them concerning each sales representative in their area of supervision. Mr. Sacco then examined the information the group provided him, discussed that information with Charles Butler, French's regional sales manager, and determined which employees would be terminated.

Mr. Sacco terminated employees he found to have "less to contribute" to Durkee/French, basing his decision with respect to Ms. Samuelson at least in part on Mr. Havrilesko's recommendation. Mr. Sacco received the following observations from Mr. Havrilesko on the sales representatives in Ms. Samuelson's sales group.

— Jack Imer (1)

30-35% volume in territory. 17 years with Durkee — selling skills — good rapport — feels he has been passed by — Strack and Ultra Accounts — 14 accounts plus Central twice a week. Call average: 10 per week.

— Lawrence Kuskye (4)

Health problems — triple bypass. Current chest pains. Candidate for long term disability. Won't make the cut. 61 years old. Should be retired by his own admission. 30 stores — 20 weekly calls.

— Norman McKitterick (2)

Ex-store manager (Buy Low). 3 years. 37-year-old. 15 accounts, 15 calls per week. Doesn't need constant supervision. Former manager of a certified store. Fits retail merchandisers mold.

— Barbara Samuelson (5)

Early difficulties — fired once-sued to get her job back — EEOC — 1985 off 1 year. Ruled in her favor-reinstated. Lawsuit indicated no sufficient grounds for dismissal. 5 years with the company. 47-year-old. Wasn't cutting the mustard. Lacks cooperation. Shows up late. Performance has turned around since then. Still sporadic in performance. No consistency. 20 accounts, 14 weekly average. No position within new structure.

— Jeffrey Wesley (3)

Part-time at first Merchandiser. Good salesperson. Aggressive attitude. Keeper — solicit new business. Tendency to resist authority. Not very tactful. 12 accounts-15 weekly calls. Needs training retail service merchandiser probability.

— Walter Wolfe (6)

Disability candidate. Former supervisor now reporting to Tom. Emphysema, nerves, asthma. 62-year-old candidate for disability. Health a major concern.

Ms. Samuelson was the only sales representative from this group whom Mr. Sacco decided to discharge. Mr. Sacco points out that she had the fifth best rating of the six sales representatives in her group; the only lower-rated representative, Walter Wolfe, voluntarily retired during the merger between Durkee and French. Those six sales representatives had the following ratings as of May 8, 1987:

Jack Imer — Low Excellent: "excellent" in 8 categories and "good" in 2 categories;

Norman McKitterick — Low Excellent: "excellent" in 7 categories and "good" in 3 categories;

Larry Kuskye — High Good: "excellent" in 1 category and "good" in 9 categories;

Jeff Wesley — Medium Good: "good" in 9 categories and "fair" in 1 category;

Barbara Samuelson — Good: "good" in 8 categories and "fair" in 2 categories; and

Walter Wolfe — High Fair: "good" in 2 categories and "fair" in 8 categories.

A sales personnel performance report for the first half of 1987 shows the following statistics with respect to the above sales group:

                Present Actual vs. Targeted Workload Achievement
                1. Larry Kuskye                             1.17
                2. Norman McKitterick                       1.05
                3. Jack Imer                                 .90
                4. Jeffrey Wesley                            .88
                5. Barbara Samuelson                         .87
                6. Walter Wolfe                              .54
                

Before making his decision with respect to Ms. Samuelson, Mr. Sacco discussed her performance with Mr. Havrilesko and spoke with her for ten minutes, due to his concern with proceeding "cautiously" in light of her previous EEOC charge. In a May 31, 1987 letter to Mr. Sacco, Ms. Samuelson wrote expressing her desire to be retained as a Durkee/French sales representative. On June 3, 1987, Ms. Samuelson met again with Mr. Sacco and was told of her termination. She was 48 years old.

Ms. Samuelson received the following employment performance evaluations while at Durkee:

In May, 1982, Mr. Krafft evaluated Ms. Samuelson as "excellent" in every category. He noted that Ms. Samuelson was a "take charge" person.

In May, 1983, Mr. Krafft evaluated her as "good" in every category.

In March, 1985, Mr. Havrilesko evaluated Ms. Samuelson as "excellent" in job knowledge, "good" in work output, judgment, cooperation, initiative, flexibility, and interpersonal relations, and "fair" in dependability and communication. Mr. Havrilesko noted:

She has the ability to sell pre set surveys in large quantities. She also has good rapport at headquarters level.

She needs to utilize and budget working hours to gain the most productivity for the time spent. To follow her assigned route more closely.

She will be worked with in an effort to strengthen her work habits and time management. She will also be assigned work projects with her peers. She will be assigned more prospects to call on.

Ms. Samuelson notes her disappointment with Mr. Havrilesko's assessment of her abilities on the 1985 evaluation.

In March, 1986, Mr. Havrilesko rated Ms. Samuelson as "excellent" in work output, judgment, and initiative, "good" in dependability, cooperation, flexibility, interpersonal relations, and work habits, and "fair" in communication. He noted further:

Barbara has become very proficient at carrying full line distribution, as much as possible, in all accounts. She has also developed a great rapport with all of her accounts over the last calendar year.

If Barbara would learn to answer written communication and correspondence more quickly it would benefit her and the company greatly.

I would like to assign Barbara to a Wholesale Headquarters call. She needs the experience.

In March, 1987, Mr. Havrilesko rated Ms. Samuelson "excellent" in cooperation, "good" in job knowledge, work output, judgment, dependability, initiative,

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