Senske v. Sybase, Inc.

• Decision Date: 03 December 2009
• Docket Number: No. 09-1610.,09-1610.
• Parties: Robert W. SENSKE, Plaintiff-Appellant, v. SYBASE, INCORPORATED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

588 F.3d 501

Robert W. SENSKE, Plaintiff-Appellant, v. SYBASE, INCORPORATED, Defendant-Appellee.

No. 09-1610.

United States Court of Appeals, Seventh Circuit.

Argued September 24, 2009.

Decided December 3, 2009.

David J. Becht (argued), Adams Nye Trapani Becht, San Francisco, CA, for Plaintiff-Appellant.

Felicia R. Reid (argued), Curiale Hirschfeld Kraemer LLP, San Francisco, CA, for Defendant-Appellee.

Before BAUER, KANNE, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

In 2005 Robert Senske was fired from his position as a high-ranking sales manager with Sybase, Incorporated, a software and systems-management company with an office in Chicago. Sybase says it fired Senske because a client complained about his performance and because he was dilatory in completing required paperwork, was persistently tardy for meetings, and was not a team player. Senske says he was fired because his manager considered him too old. Senske sued Sybase under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., alleging that Sybase concocted fictional reasons to fire him in an attempt to disguise age discrimination. The district court concluded that no reasonable jury could find that discrimination, rather than Senske's performance deficiencies, was the root cause for Senske's termination and granted summary judgment to Sybase. Senske appeals.

We view the following undisputed facts in the light most favorable to Senske.¹ See Faas v. Sears, Roebuck &amp Co., 532 F.3d 633, 640 (7th Cir.2008). In the summer of 2002, when Senske was 55 years old, Sybase hired him to fill the role of Strategic Account Manager, or "SAM 2." As a SAM 2, Senske was required to establish new, and enhance existing, client relationships. He was also charged with meeting certain assigned revenue quotas. Senske's employment did not get off to a stellar start. In his first annual performance review his then-supervisor, Terry Stempel, rated his overall performance for 2003 as "marginal." Stempel characterized Senske's sales performance as "unacceptable," his pipeline of potential revenue as "insufficient," and his follow-through on paperwork as lacking in "discipline." Although his review noted that "the employee needs to be placed immediately on a Performance Improvement Plan," Stempel opted not to discipline Senske.

In October 2004 Allan Roeder replaced Stempel as Senske's supervisor. Their first meeting didn't go well. Depending on whose story is believed, Senske was late by at least 30 minutes, and perhaps by up to 90 minutes, in picking Roeder up at the airport. Senske's tardiness on that day was not an isolated event. According to Roeder's supervisor, Barb Stinnett, Senske persistently was late to or absent from weekly conference calls with the management team.

Although in 2003 Senske met only 54 percent of his annual revenue goal, in the fourth quarter of 2004 he participated in two deals that led him to achieve 186 percent of his $2.5 million sales quota. The first involved HSBC, which had acquired Household Finance, one of the accounts Senske inherited when he joined Sybase in 2002. Senske was authorized to offer HSBC up to a 5 percent discount off of the list price for Sybase's products. When HSBC asked for more, Senske followed company policy and brought Roeder and Presales Manager Mehul Rajparia onto the deal. Problems arose during the closing process, but despite Roeder's request that he participate in the contract negotiations, Senske left it up to Roeder and Rajparia to hammer out the details. When the $940,000 deal closed in December 2004, Senske received 90 percent of the commission credit.

By far the larger of the two deals involved JPMorgan Chase, which in 2004 merged with one of Senske's clients, Bank One. Prior to the merger, Senske had proposed a $912,500 deal to Bank One. When the JPMorgan acquisition was announced in the early summer of 2004, Senske's deal with Bank One was put on hold. Following the merger, Senske got a call from Eric Johnson, the head of FSI, which is Sybase's New York-based financial services group. Johnson told Senske that FSI would handle the deal going forward but would split the resulting commission with him 50-50. FSI took a new strategy on the deal and did not ask Senske to participate in the deal's negotiation or closing. Senske continued to be involved to the extent that he communicated with his Bank One contacts and discussed with colleagues how Sybase could generate new revenue from the merger. The deal structured by FSI closed in December 2004 at $5.2 million, more than five times the size of the deal Senske originally pitched to Bank One. Nonetheless, pursuant to his agreement with Johnson, Senske was credited with $2.6 million in revenue from the deal. Without that credit, Senske would not have met his 2004 revenue quota; with it, he exceeded his quota by 86 percent and became Sybase's top North American earner for the year. Because he exceeded his 2004 sales quota, Senske was invited to join the President's Club, a reward program for high-achieving Sybase employees.

In January 2005 Roeder completed Senske's performance review for 2004. Roeder gave Senske the highest possible rating for revenue accomplishment but noted that he would not have met his quota without the JPMorgan deal. Roeder gave Senske lower scores in the categories of paperwork completion and pipeline readiness. Roeder noted that Senske "is consistently late in updating or accurately completing weekly reports," and commented that his pipeline "does not meet current or future corporate guidelines for pipeline performance." Despite these criticisms, Roeder scored Senske's overall performance in the "good" category, meaning he was "meeting all, and possibly exceeding some, performance requirements."

That same month Sybase introduced the managers to a new planning tool called "blue sheets," but Stinnett and Roeder perceived Senske as resisting the new method. In the ensuing months Senske maintained his resistance, never turning in a blue sheet (or, at most, submitting one). He also continued to be late to or absent from weekly calls.

In late 2004 and the first several months of 2005, Roeder counseled Senske about problems that arose on two of Senske's accounts: Citadel and HSBC. Roeder perceived Senske as having difficulty communicating with or meeting the needs of the decisionmaker at Citadel, Matt Swan. Roeder thought that Citadel's technical problems remained unresolved for too long, but despite Roeder's prompting, Senske had not come up with an action list to address that concern. As for the HSBC account, Roeder fielded complaints from Eric Johnson, who said that Senske was not sharing his HSBC contacts or leveraging his networks with FSI, which was handling the post-merger JPMorgan account. Roeder discussed these complaints with Senske and told him it was "mandatory" that he be "a participant in a team."

In March 2005 Roeder prepared a Performance Improvement Plan (PIP) for Senske which Stinnett and Stinnett's boss, Steve Capelli, approved. The PIP informed Senske that he needed to improve his account and closing strategy and demonstrate his ability to "close competitive opportunities." Roeder noted that Senske had relied on him to close deals with HSBC and Citadel instead of taking ownership of the deals himself. He also relayed some of Swann's complaints, noting that Senske did not understand Swann's negotiating preferences and other management needs. Roeder further noted that Senske was unresponsive to his requests for timely and complete account updates and reports. Roeder informed Senske that he must improve his closing skills, respond to management requests in a timely manner, provide weekly blue sheets, and tighten up his "account plans and strategy to the point where your accuracy approaches 100%." The PIP emphasized that Senske would be fired unless he made the required improvements within 60 days.

Three key events unfolded during Senske's 60-day PIP period. First, in late May Senske arrived 45 minutes late for a meeting with Citadel and then failed to take notes during the meeting. Roeder chastised him by e-mail, saying, "It's a lack of professionalism to always be late. It sends the wrong signal." Next, in early June Swann met with Roeder and expressed his frustration with what he considered Senske's poor commitment to the Citadel account. Swann later e-mailed Roeder saying, "I have very limited confidence that Bob Senske and [another employee] are capable of providing the level of support required by Citadel." He noted Citadel's need for Sybase to "deliver consistent follow up from an account management perspective," and emphasized his desire for "quality, proactive support management." Roeder forwarded the e-mail to Stinnett, saying, "Citadel is defcon 4. I believe this is our last chance [t]o salvage this." Finally, the day after Swann e-mailed Roeder, Johnson e-mailed Stinnett to complain that Senske had "run loose" on the HSBC account and was refusing to work with other members of the team. Johnson told Stinnett, "This cannot continue. Besides being counterproductive, it is just wrong."

Five days later Roeder wrote a memo to human resources recommending Senske's termination. He referenced the complaints from Swann and Johnson, and said that Senske's "lack of strategic planning forces his management team to get his deals across the finish line." He further noted Senske's ongoing tardiness to meetings, stating that he "has been late for every meeting I have participated in with him." Roeder also emphasized Senske's persistent failure to complete blue sheets and his lack of initiative. Stinnett and Capelli both agreed with Roeder's recommendation.

After receiving Roeder's memo, a human resources executive, Nita White-Ivy, e-mailed Capelli saying that it was "weird" that a member of the President's Club would be recommended for termination. Capelli responded saying that Senske "made...