Perry v. Hagemeyer North America Inc

Filing 34

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/31/17. (SAC )

FILED
2017 Mar-31 PM 03:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DOUGLAS R. PERRY,
Plaintiff,
v.
HAGEMEYER NORTH AMERICA,
INC.,
Defendant.

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2:15-cv-00173-KOB

MEMORANDUM OPINION
Plaintiff Douglas R. Perry claims that his employer discriminated against him on the basis
of his age in violation of the federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et
seq., and its Alabama counterpart, ALA. CODE § 25-1-20 et seq. This matter is before the court on
Defendant’s Motion for Summary Judgment (doc. 25) and accompanying Memorandum of Law.
(Doc. 26). Plaintiff filed a response (doc. 31), and Defendant filed a reply. (Doc. 33).
For the reasons stated in this Memorandum Opinion, the court will GRANT Defendant’s
Motion for Summary Judgment.
I.

Standard of Review
Summary judgment allows a trial court to decide cases when no genuine issues of

material fact are present and the moving party is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56. When a district court reviews a motion for summary judgment, it must determine
two things: (1) whether any genuine issues of material fact exist; and if not, (2) whether the

1

moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).
The moving party “always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56).
Once the moving party meets its burden of showing the district court that no genuine
issues of material fact exist, the burden shifts to the non-moving party to produce sufficient
favorable evidence “to demonstrate that there is indeed a material issue of fact that precludes
summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “If the
evidence [on which the nonmoving party relies] is merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249–50 (1986) (internal citations omitted).
When ruling on a motion for summary judgment, the court should view all evidence and
inferences drawn from the underlying facts in the light most favorable to the non-moving party.
See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). The evidence of
the non-moving party “is to be believed, and all justifiable inferences are to be drawn in [its]
favor.” Anderson, 477 U.S. at 255. “If reasonable minds could differ on the inferences arising
from undisputed facts, then a court should deny summary judgment.” Allen v. Tyson Foods, Inc.,
121 F.3d 642, 646 (11th Cir. 1997) (internal quotation marks and citations omitted). This
standard exists because “the drawing of legitimate inferences from the facts are jury functions,
not those of a judge.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000)
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(quoting Anderson, 477 U.S. at 255).
After both parties have addressed the motion for summary judgment, the court must grant
the motion only if no genuine issues of material fact exist and if the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56.
II.

Statement of Facts
Plaintiff Douglas R. “Randy” Perry was born in 1956. Mr. Perry worked for Defendant

Hagemeyer’s corporate predecessor, Vallen Safety Supply, from 1983 until Hagemeyer
purchased Vallen between 1999 and 2001. Mr. Perry then worked for Hagemeyer until his
termination on April 1, 2013, when he was 56 years old. While working for Vallen, Mr. Perry
held the position of sales office supervisor for approximately three years and then became branch
operations supervisor for approximately ten years. Mr. Perry was made an outside sales/account
representative after Hagemeyer purchased Vallen and held that role until his termination.
Throughout his entire employment, Mr. Perry was based in Birmingham, at his employer’s
Pelham, Alabama branch.
Hagemeyer is a business-to-business distributor of industrial, safety, and electrical
services and products to customers in the utilities, heavy equipment manufacturing,
transportation services, and metal industries. Hagemeyer provides to its customers a range of
procurement and inventory management services, including automated vendor-managed
inventory (VMI) systems, customized on-site storeroom management, and integrated supply
specialists. As an account representative, Mr. Perry’s primary responsibilities included selling
and servicing VMI services; maintenance, repair and operations (MRO) products; and electrical
products to industrial customers in the Birmingham territory. From 2001 until his termination,
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Mr. Perry’s direct supervisor was Jay Hooten, the District Manager of the Memphis/Alabama
District.
A.

U.S. Steel Account

Soon after he became an account representative, Mr. Perry was assigned to Hagemeyer’s
U.S. Steel account. In 2005, Hagemeyer obtained an on-site service contract with U.S. Steel at its
Fairfield, Alabama mill, under which Hagemeyer conducted drug testing and other safety
activities for U.S. Steel contractors. Mr. Perry was the primary account representative for the
Fairfield mill and so benefitted from the contract in the form of increased commissions, although
other employees actually managed Hagemeyer’s daily operations at the mill. Originally,
Hagemeyer contracted with U.S. Steel to provide various kinds of safety equipment at its
Fairfield mill; as account representative, Mr. Perry added other products and services to the
contract and played a large role in building up the U.S. Steel account.
The U.S. Steel account comprised a significant portion of Mr. Perry’s sales. For example,
in 2003, U.S. steel sales accounted for approximately half of Mr. Perry’s annual sales of $2.5
million. In 2005, sales to U.S. Steel made up almost $2.5 million of Mr. Perry’s $3.2 million in
total territory sales and boosted his gross margin percentage from 26.74% in 2004 to 30.36% in
2005. These numbers remained similarly high through 2008, when U.S. Steel sales accounted for
roughly 89% of Mr. Perry’s total annual sales.
In late 2008, Hagemeyer learned of the risk of losing the Fairfield mill contract. Effective
June 1, 2009, Hagemeyer designated the U.S. Steel account a “house account,” which meant that
neither Mr. Perry nor any other account representative received commission credit for U.S. Steel
sales from that point forward. Mr. Hooten stated in his declaration that the account was taken
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from Mr. Perry to encourage him to focus on generating new business and new customers. Mr.
Perry contends that Mr. Hooten did not communicate this purpose to him until the next year and
that, at various times, he was told this change was made to save jobs and because Mr. Perry “was
the only one making any money” while Mr. Hooten and another employee were not going to
receive bonuses that year. (Doc. 27-2 at 77:8). Mr. Hooten denies that he ever told Mr. Perry the
change was made to save jobs or to increase bonuses.
Hagemeyer reduced Mr. Perry’s salary upon designation of the U.S. Steel account as a
house account. In June 2009, Mr. Perry was 52 years old and was the second-oldest account
representative Mr. Hooten supervised. By late 2009, Hagemeyer had lost the Fairfield service
contract, resulting in a sharp decline in U.S. Steel sales numbers.
B.

Job Performance Prior to Loss of the U.S. Steel Account

Mr. Perry received praise and recognition for his job performance before and after he
became an account representative. In 2008, he received an award from Hagemeyer “for [his]
outstanding sales performance in 2008”; he had received the same or a similar sales award prior
to 2008. (Doc. 32-1 at 54). Mr. Hooten commented in Mr. Perry’s 2008 performance evaluation
that Mr. Perry had “a tremendous year” and that “[h]is sales number alone is impressive, but
coupled with the GM% it is awesome! Randy also capitalized on an opportunity with Alabama
Power . . . . Their sales were unplanned and help [sic] push Randy over the top of his budget. . . .
GREAT YEAR !!” (Doc. 32-1 at 57).
Mr. Perry became Hagemeyer’s leading Alabama account executive several years prior to
2008 and held that spot until Hagemeyer made the U.S. Steel account a house account in 2009.
Prior to the designation of the U.S. Steel account as a house account, Mr. Perry gave a number of
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his accounts to other account executives upon the request of Mr. Hooten; he did so because “[he]
still had U.S. Steel.” (Doc. 27-2 at 37:15). Mr. Perry affirmed in his 2010 performance review
that he “gave up over 40 accounts over the past 3 years to help jr. sales reps have some
established accounts,” and noted in his 2011 performance evaluation that “[a]ccounts were taken
from me over the past several years.” (Doc. 27-1 at 16, 20). Mr. Perry was not disciplined during
his 30 years of employment.
C.

Job Performance After Loss of the U.S. Steel Account

None of Mr. Perry’s other accounts were made house accounts or given to other account
representatives at the time the U.S. Steel account was taken from him. Mr. Perry’s account base
did not decrease from 2010 through 2012. Mr. Perry’s sales, as measured by his yearly gross
margin, declined from 2009 through 2012. During this time, he failed to replace the U.S. Steel
business and other decreasing revenue accounts with new customers. None of his quarterly gross
margin numbers from 2010 through 2013 were as low as his gross margin numbers for the last
two quarters of 2009.
In his 2009 performance review, after Hagemeyer took away the U.S. Steel account, Mr.
Perry was rated as “Needs Improvement” (2.00–2.99 out of 5.00) in the “Customer Focus” and
“GM Dollars ($) to Plan” categories and as “Unsatisfactory” (0.00–1.99 out of 5.00) in the
“Value Plus Performance” category; he was rated as “Strong Performer” in “New Account
Development.” He received an overall performance rating of “Needs Improvement.”
In his 2010 performance evaluation, Mr. Perry was rated as “Needs Improvement” in
“GM Dollars ($) to Plan,” “New Account Development,”and “Value Plus Performance,” with an
overall performance rating of “Needs Improvement.” Mr. Hooten commented, “Although Randy
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grew his business with APCO, he fell short of his total GM$ plan by $245k. Randy has been in
the Birmingham market his entire career and has got to develop new relationships to compliment
[sic] his key account. Randy must grow his territory by adding new customers.” (Doc. 27-1 at
15).
In his 2011 performance review, Mr. Perry was rated as “Needs Improvement” in “Value
Plus Performance” and as “Unsatisfactory” in “GM Dollars ($) to Plan” and “New Account
Development,” with an overall “Needs Improvement” rating. Mr. Hooten commented that Mr.
Perry “needs to work harder to get more customers” and that he
fell woefully short of his sales and GM dollar goals by $750K and
$191K . . . . Plant Miller was down . . . but Randy didn’t bring on any
new business to replace it other than the VMI vending machines at
Gaston. Randy single handily [sic] got us an opportunity to quote on
Sabic’s PPE contract.1 I want Randy to create a list of target
customers and start calling on them -- he is fully capable of bringing
new business to the table.
(Doc. 27-1 at 19).
In 2012, Mr. Perry’s sales numbers fell below his GM dollars goal for the fourth
consecutive year; his 2012 goal was $450,000 and his actual total was $289,882.19. His 2012
performance evaluation included an “Unacceptable”2 rating in “GM Dollars ($) to Plan,” “MROValue Plus Performance; C&I- Marketing Initiatives,” and “New Account Development,” with
an overall “Unsatisfactory” ranking. Mr. Hooten commented in this review: “Another year has
passed with Randy underachieving and not growing his territory to an expected level. . . . I have

1

Mr. Perry testified that Hagemeyer ultimately never submitted a bid. (Doc. 27-2 at
98:4–100:20).
2

Presumably equivalent to “Unsatisfactory.”
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had numerous conversations with Randy expressing my concerns and stressing the need for him
to pick up his pace, but to no avail.” (Doc. 27-1 at 23).
After the U.S. Steel account was designated a house account, the most substantial account
assigned to Mr. Perry was the Alabama Power account. Mr. Perry made up to three trips a week
to the Alabama Power plant in Wilsonville, Alabama to complete a weekly inventory and restock
vending machines. Mr. Perry told Mr. Hooten in January 2013 that he was spending so much
time traveling to restock the Alabama Power vending machines that he had difficulty building up
other business. Mr. Perry asked Mr. Hooten if a warehouse employee could restock the vending
machines instead, but Mr. Hooten declined to designate a warehouse employee to complete that
task. However, after Mr. Perry was let go, a warehouse employee took over restocking vending
machines for Alabama Power. Mr. Hooten testified that he and other sales representatives
regularly restocked inventory for customers.
D.

Performance Improvement Plan

As a result of his failure to generate new business and improve his sales performance, on
January 11, 2013, Hagemeyer placed Mr. Perry on a Performance Improvement Plan (PIP),
which set out the following four requirements for Mr. Perry to complete:
1.

2.

Create a specific business plan targeting 20 customers
explaining how you will penetrate the account (specific
products, HTS presentation, VMI, etc.) This can be for
existing customers on big pieces of their business you don’t
have today. Your plan should include contacts and phone
numbers, very specific dates you plan to meet the customer,
expected revenue, and a timeline for revenue. This should be
a very aggressive plan pointed towards $500,000 in GM$ per
year. I expect this plan within 2 weeks.
Starting immediately, you will be required to submit a call
report for the upcoming week by COB each Friday. Your
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3.

4.

report will show the day, customer, contact, purpose of call,
etc. for minimum of 5 calls per day. I’ll provide you a 2013
Success Planner call report for you to use.
Contact our key supplier reps and include them in your
business plan. At a minimum, you will work with 4 different
suppliers each month making joint end user calls. Also, two
full days per month shall include sales calls with Ken Coats.
(to start within 2 weeks)
Enter customer cost savings proposal equal to 5% of monthly
sales in the VPP database. Proposals do not have to be
approved to count, but they must be entered each month.

(Doc. 27-1 at 27).
The PIP required “improved and sustained performance, in addition to meeting specific
sales goals and HNA Account Representative Requirements.” (Id.). Mr. Hooten, when he
presented the PIP to Mr. Perry, emphasized that Mr. Perry must meet each of the requirements:
“We want you to work. I don’t want to let you go. But I’m telling you, if you want to work here
you’re going to follow the guidelines of this PIP, and if you miss any one of them, we’re not
going to have another conversation.” (Doc. 27-2 at 43).
Hagemeyer claims that in response to the PIP, Mr. Perry submitted a business plan with
19 customers. See (Doc. 27-1 at 30). Mr. Perry maintains that the business plan listed 20
customers. He testified, “I know I would have put 20”; that he recalled specifically trying to
follow Mr. Hooten’s instructions “to the letter”; that he was not informed he had listed only 19
contacts; and that he “believe[d] he would have counted it before [he] sent it to [Mr. Hooten].”
(Doc. 27-2 at 46:18, 88:11–15, 89:8–10). He also stated that if he had only listed 19, “I might as
well have retired. I mean, I would not put 19 on there from him asking me to do 20. Why would I
waste my time to do it?” (Doc. 27-2 at 88:16–19). At Mr. Hooten’s deposition, before being
shown the plan with 19 customers, he testified that he guessed the plan listed 20 people
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“[p]robably to the T . . . .” (Doc. 32-2 at 275:10).
Beginning with Friday before the week of January 21, 2013 and continuing through the
Friday before the week of April 1, 2013, Mr. Perry submitted a weekly call report on Fridays
indicating which customers he planned on calling the following week. During that time, he called
on five of the nineteen potential customers he had identified in his business plan. The call report
did not reflect a plan to call at least five customers every day. Mr. Hooten did not document any
inadequacy concerning Mr. Perry’s business plan or call log.
Although Mr. Perry did take a supplier representative on a sales call with him on three
different occasions, he did not take four different suppliers on calls with him each month. He did
not inform Mr. Hooten that he had difficulty scheduling calls with supplier representatives. Mr.
Perry contacted Ken Coats to set up sales calls with him, but the two were unable to agree on
times and dates to make the calls. Mr. Perry did not make any sales calls with Ken Coats and did
not inform Mr. Hooten that he had any difficulty scheduling calls with Mr. Coats.
Mr. Perry drafted handwritten customer cost savings proposals to enter into the VPP
database, but did not enter any proposals into the database. Mr. Perry did not enter them because
Mr. Hooten told him that the program was not running, and he did not provide the proposals to
Mr. Hooten in any other format.
Based on his March 2013 year-to-date gross margin numbers, Mr. Perry was on track to
meet the sales performance measure of the PIP, considered by Mr. Hooten to be the “most
important” element of the PIP, during the period between January 11 and April 1, 2013. (Doc.
32-2 at 303:18). Mr. Hooten indicated that “one of the reasons” Hagemeyer fired Mr. Perry was
because of “[t]he manner in which he was generating those sales . . . he was telling his customers
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to buy from him or he was going to be fired.” (Doc. 32-2 at 231:3–6). Mr. Perry testified that he
never told his customers, or told Mr. Hooten that he told his customers, that he needed them to
make an order or he would lose his job. Additionally, on the day Mr. Perry was fired,
Hagemeyer’s reply to his contention that he had been making his sales numbers was that he
“couldn’t continue to count on [his] friends to give [him] business.” (Doc. 27-2 at 96:15–16).
Mr. Perry alleges that he did not receive any feedback regarding his compliance with any
of the PIP requirements. Mr. Hooten testified that when he received Mr. Perry’s business plan, he
told him that he was “disappointed in what he had come back with.” (Doc. 32-2 at 8–9). Mr.
Hooten also testified that he “would have” verbally indicated to Mr. Perry that his call report was
timely but did not satisfy the requisite number of calls per day. (Doc. 32-2 at 289:24).
According to Hagemeyer, by April 1, 2013, Mr. Hooten determined that Mr. Perry was
making insufficient progress toward the PIP requirements to improve his sales performance and
had not complied with the third and fourth PIP requirements; accordingly, he recommended that
Mr. Perry be terminated. Hagemeyer terminated Mr. Perry’s employment on April 1, 2013. Mr.
Perry disputes these reasons for his discharge and argues that his termination was motivated by
discriminatory animus based on his age.
E.

Other Hagemeyer Account Representatives

Hagemeyer assigned each of its account representatives to their own geographic
territories with “loose boundary line[s]” and assigned accounts to geographic territories and
corresponding sales representatives. (Doc. 32-2 at 49:6–7).
In 2010, Hagemeyer terminated Tom White, who in 2009 was the sole Hagemeyer
account representative based in Decatur, Alabama; at the time of his termination, he was the
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oldest account representative Mr. Hooten supervised, although the record does not reflect Mr.
White’s age. In January 2010, Hagemeyer hired Tab Bowling, who was born in 1959 and was
younger than Mr. White, to be an account representative based in Decatur. Hagemeyer
transferred some of Mr. White’s business to Mr. Bowling before terminating Mr. White. Mr.
Hooten testified that Mr. White was let go because Hagemeyer eliminated one of its outside sales
positions. Mr. White’s account base was larger than Mr. Bowling’s at the time he was fired, and
one criterion in his termination decision was “account base and the dollars that [he was]
generating.” (Doc. 32-2 at 85:19–20). However, in deciding which representative to terminate,
officers were “looking more at attitude, work ethic, energy, aggressiveness, somebody with a
positive morale and positive energy around them.” (Id. at 85:22–25).
Mr. Hooten noted of Mr. White: “His territory was just not growing; it had been stagnant
for some time. . . . [His sales] were stagnant or declining.” (Doc. 32-2 at 78–79). Prior to Mr.
White’s discharge, Mr. Hooten had placed Mr. White on a performance improvement plan. Mr.
White’s termination letter informed him that “[his] position with Hagemeyer NA is being
eliminated” and offered him severance in exchange for a release of claims against it, including
those under the ADEA. (Doc. 32-2 at 22–24). Most of Mr. White’s accounts were assigned to
Mr. Bowling after Mr. White was terminated. According to Hagemeyer’s March 2013 year-todate figures, most of Mr. Bowling’s year-to-date sales at that time came either from accounts he
inherited or from national accounts Mr. Hooten assigned to him.
In Mr. Perry’s 2012 performance evaluation, Mr. Hooten criticized Mr. Perry for “asking
me to give him a piece of business that is already developed by someone else or is a large
national account customer. . . . I don’t think he has the drive or desire to put in the necessary
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work.” (Doc. 27-1 at 23). Mr. Hooten did not similarly criticize Mr. Bowling for not “getting out
there and developing his own business.” (Doc. 32-2 at 173:7–8).
At the time Hagemeyer terminated Mr. Perry, Mr. Hooten supervised four other account
representatives who were ages 39, 49, 52, and 54. Five months after Mr. Perry’s termination,
Hagemeyer hired a 29-year-old individual to replace him.
F.

Allegedly Age-Related Comments

Mr. Perry avers that, prior to January 11, 2013, Mr. Hooten had commented several times
in conversations with Mr. Perry that it was his “dream” or “hope” that Mr. Perry would “walk in
the door one day” and tell Mr. Hooten that he intended to retire, and that Mr. Hooten had “three
to six months” to find someone to take over Mr. Perry’s business. (Doc. 32-1 at 15 ¶ 63).
Mr. Hooten affirmed that during several different conversations, he had expressed his
“hope” and “dream” that Mr. Perry would retire in a certain way:
I considered myself a friend of Randy’s, not only his manager. I
wanted him to determine when he was done working. And my ideal
scenario was that once he thought he no longer wanted to work or
needed to work, he would come to me and say, Jay, I think this will
be my last year. I am going to give you “X” number of months to go
find a good replacement for me and give me time to go and introduce
that person to my customers, get my customer feeling comfortable
with them, and then I’m done.
(Doc. 32-2 at 91:5–16). Mr. Hooten testified that he recognized a company can more easily retain
business “when you have some continuity, if the older sales rep introduces the younger sales rep
to the accounts so they know who the new guy is[.]” (Doc. 32-2 at 310:19–23). Mr. Perry never
expressed any intent or desire to retire to Mr. Hooten.
Mr. Hooten and another Hagemeyer officer made comments to Mr. Perry referencing the

13

“long, many years that [he] had in with the company” and told him “that it should not be any
problem to gain more business” because of his years of experience. (Doc. 27-2 at 57:22–58:8).
Mr. Hooten felt that the company could hold Mr. Perry to a higher standard because he had
worked for the company for 30 years.
Around the time that Hagemeyer terminated Mr. White, Mr. Hooten told Mr. Perry that
Mr. White “was old and set in his ways and . . . he wasn’t going to change.” (Doc. 27-2 at
59:2–3).
G.

Filing of EEOC Charges

The signature date on Mr. Perry’s “Charge of Discrimination” and EEOC Intake
Questionnaire is September 27, 2013. The “received” date stamp on the “Charge of
Discrimination” form, however, is September 29, 2013; 180 days after April 1, 2013 is
September 28, 2013.
III.

Analysis
The federal ADEA and the Alabama ADEA make it unlawful for an employer to

discharge or otherwise discriminate against an individual who is 40 or older because of age. 29
U.S.C. §§ 623(a)(1), 631(a); ALA. CODE § 25-1-21. To recover under either ADEA, an employee
must take appropriate action within 180 days of the allegedly unlawful event. 29 U.S.C. §§
623(d)(1)(A) (mandating that an employee desiring to bring suit under the federal ADEA file a
charge with the EEOC within 180 days after the alleged unlawful event occurred); Byrd v.
Dillards, Inc., 892 So.2d 342, 346 (Ala. 2004) (holding that the Alabama ADEA requires an
employee to either file suit in state court or file a charge with the EEOC within 180 days from the
occurrence of the alleged unlawful practice).
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The same standards govern claims under the federal ADEA and the Alabama ADEA. See
Dooley v. AutoNation USA Corp., 218 F. Supp. 2d 1270, 1277 (N.D. Ala. 2002) (internal citation
omitted); Robinson v. Alabama Central Credit Union, 964 So. 2d 1225, 1228 (2007). The
employee may establish a claim of illegal age discrimination through either direct or
circumstantial evidence. Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013). In the federal
(and therefore also the Alabama) ADEA context, the employee must show “that age was the
but-for cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
177 (2009) (internal quotation marks omitted).
Mr. Perry alleges in his Complaint that Hagemeyer discriminated against him on the basis
of his age by reassigning his accounts to a younger, less qualified employee and then terminating
him. (Doc. 1 at 3–5). Mr. Perry argues in his Opposition to the Motion for Summary Judgment
that he suffered the additional age-based adverse employment actions of (1) the decision to take
the U.S. Steel account away from him and (2) being evaluated under a “higher” and less
favorable standard than younger employees; these claims are not pled in his Complaint and so the
court does not address them as actionable claims. See Gilmour v. Gates, McDonald & Co., 382
F.3d 1312, 1315 (11th Cir. 2004) (citing Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.
1996)) (“A plaintiff may not amend [his] complaint through argument in a brief opposing
summary judgment.”). However, the facts surrounding these actions may be considered as
evidence of discriminatory animus based on age.
Moreover, the “younger, less qualified employee” to whom his accounts allegedly were
reassigned who is referenced in the Complaint, “Chad Smith,” makes no appearance in Plaintiff’s
response to the summary judgment motion. And in any case, because the parties do not dispute
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that Mr. Perry’s account base did not decrease from 2010 through 2012, any claim of account
reassignment would date to 2009 at the latest and would be time-barred because Mr. Perry did
not file his EEOC charge until September 2013. See 29 U.S.C. §§ 623(d)(1)(A); Byrd, 892 So. 2d
at 346. However, “a plaintiff can use evidence of time-barred discriminatory conduct to meet his
burden of persuasion in a case involving circumstantial evidence of discrimination.” Turlington
v. Atlanta Gas Light Co., 135 F.3d 1428, 1436 (11th Cir. 1998) (reviewing cases). The sole claim
before the court, then, is Mr. Perry’s assertion that he was fired because of his age.
A.

Timeliness of EEOC Charge

Mr. Perry contends that the signature date on his EEOC documents, September 27, 2013,
rather than the “received” date, reflects the actual filing date of his EEOC charge. Hagemeyer
disagrees and contends that the filing date is the “received” date, September 29, 2013, which
would make the charge untimely. The record does not reveal the EEOC’s intake procedures or
whether Mr. Perry submitted his documents in person or via some other method. Taking the facts
in the light most favorable to the Plaintiff, the court finds that a reasonable jury could find that
Mr. Perry timely submitted his EEOC charge on September 27, 2013.
B.

Direct Evidence of Discrimination

“‘[O]nly the most blatant remarks, whose intent could mean nothing other than to
discriminate on the basis of’ some impermissible factor constitute direct evidence of
discrimination.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1092 (11th Cir. 2004) (quoting
Rojas v. Florida, 285 F.3d 1339, 1342 n.2 (11th Cir. 2002)). Mr. Perry contends that Mr.
Hooten’s comments to him about his “dream” or “hope” that Mr. Perry would tell him he
intended to retire constitute direct evidence that Mr. Perry’s termination was based on his age.
16

Mr. Perry’s version of these comments, on its face, does not show that they are related to his age
at all.
Even taken in the light most favorable to Plaintiff, these comments at best show that Mr.
Hooten wanted to know when Mr. Perry would retire. See, e.g., Colosi v. Electri-Flex Co., 965
F.2d 500, 502 (7th Cir. 1992) (stating that “a company has a legitimate interest in learning its
employees’ plans for the future, and it would be absurd to deter such inquiries by treating them as
evidence of unlawful conduct”). And Mr. Hooten’s explanation of these comments establishes
that they were not discriminatory, but rather reflected a reasonable desire that Mr. Perry retire in
a manner that would permit Hagemeyer to maintain seamless business relationships with its
customers.
Mr. Hooten and another Hagemeyer officer made comments to Mr. Perry referencing the
“long, many years that [he] had in with the company” and told him “that it should not be any
problem to gain more business” because of his years of experience. (Doc. 27-2 at 57:22–58:8).
And Mr. Hooten felt that the company could hold Mr. Perry to a higher standard because he had
worked for the company for 30 years. Like the “dream” or “hope” remarks, these comments do
not refer to Mr. Perry’s age but to his level of experience.
Accordingly, Mr. Perry has presented no direct evidence of discrimination.
C.

McDonnell Douglas Analysis

A plaintiff relying on circumstantial evidence normally proves discrimination under the
ADEA using the McDonnell Douglas burden-shifting framework. See Sims, 704 F.3d at 1332-33
(discussing the application of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) after the
decision in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)).
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Under the McDonnell Douglas framework, the plaintiff must first show a prima facie case
of discrimination and the burden then shifts to the defendant to show a legitimate,
nondiscriminatory reason for its action. Chapman v. Al Trans., 229 F.3d 1012, 1024 (11th Cir.
2000). The plaintiff must then show that the defendant’s proffered reason is pretext. See id.
1.

Prima Facie Case

To establish his prima facie case, Mr. Perry must show that he (1) was a member of the
protected class; (2) was qualified for his position; (3) was subjected to adverse employment
action; and (4) was replaced by a substantially younger person. See Kragor v. Takeda
Pharmaceuticals America, Inc., 702 F.3d 1304, 1308 (11th Cir. 2012).
Hagemeyer does not contest Mr. Perry’s ability to establish a prima facie case of
discrimination, and the court finds that he has established one. Mr. Perry is a member of the
ADEAs’ protected class because he was 56 at the time he was terminated. He qualified for the
position of account representative, as demonstrated by the praise and recognition he received for
his job performance, exemplified in his 2008 performance evaluation; his sales awards; his
several years of being the leading Hagemeyer account representative in Alabama; his sterling
disciplinary record; and his tenure in the position. See Lieberman v. Metropolitan Life Ins. Co.,
808 F.3d 1294, 1299 (11th Cir. 2015) (holding that—in a case where the plaintiff was discharged
after negative performance evaluations and being placed on a performance plan, and had a
history of leadership awards and leadership of a high-performing branch—“[n]ine years in the
same position, and nearly three decades at the company, is long enough to support the inference
that he was qualified for his job”).
Mr. Perry was subject to an adverse employment action when he was fired, and he was
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replaced by someone substantially younger (a 29-year-old). Because Mr. Perry has established a
prima facie case of age discrimination, the burden shifts to Hagemeyer to show a legitimate, nondiscriminatory reason for its decision to terminate Mr. Perry.
2.

Non-Discriminatory Reasons for Termination

Hagemeyer has proffered two legitimate, non-discriminatory reasons for its decision to
discharge Mr. Perry: his declining sales performance over three years and his failure to fulfill the
requirements of the PIP. Because Hagemeyer has articulated non-discriminatory reasons for its
termination decision, the burden shifts back to Mr. Perry to show that Hagemeyer’s given reasons
were a pretext for discrimination.
3.

Pretext

“A plaintiff is not allowed to recast an employer’s proffered nondiscriminatory reasons or
substitute his business judgment for that of the employer.” Chapman, 229 F.3d at 1030. Rather,
“[p]rovided that the proffered reason is one that might motivate a reasonable employer, an
employee must meet that reason head on and rebut it, and the employee cannot succeed by
simply quarreling with the wisdom of that reason.” Id. (internal citations omitted) (emphasis
added). Three years of declining sales performance and a failure to comply with the components
of the PIP, which Mr. Perry was required to meet as a result of his failure to generate new
business and improve his sales performance, could motivate a reasonable employer to terminate a
sales representative.
“If the plaintiff does not proffer sufficient evidence to create a genuine issue of material
fact regarding whether each of the defendant employer’s articulated reasons is pretextual, the
employer is entitled to summary judgment on the plaintiff's claim.” Chapman, 229 F.3d at 1025
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(internal citation omitted) (emphasis added).
a.

Sales Performance

Mr. Perry does not contest that his sales, as measured by his yearly gross margin, declined
from 2009 through 2012; that no accounts other than the U.S. Steel account were taken from him
during that period; or that during that time, he failed to replace the U.S. Steel business and other
decreasing revenue accounts with new customers. Rather, he presents his sales data in the form
of quarterly numbers, arguing that none of his quarterly gross margin numbers from 2010
through 2013 were as low as his gross margin numbers for the last two quarters of 2009.
Mr. Perry’s quarterly sales numbers show a distinction without a difference. His sales still
declined from 2009 through 2012. Even if Mr. Perry’s quarterly numbers are a more accurate
assessment of his abilities, “[a] plaintiff must show not merely that the defendant’s employment
decisions were mistaken but that they were in fact motivated by” his age. Wilson, 376 F.3d at
1092 (quoting Lee v. GTE Florida, Inc., 226 F.3d 1249, 1253 (11th Cir. 2000)). Mr. Perry has
not done so.
b.

Compliance with the Performance Improvement Plan

Mr. Perry does not dispute that he did not comply with all four specific requirements of
the PIP, despite Mr. Hooten’s warning him on January 11, 2013 that “if you want to work here
you’re going to follow the guidelines of this PIP, and if you miss any one of them, we’re not
going to have another conversation.” (Doc. 27-2 at 43) (emphasis added).
A genuine dispute of fact exists as to whether Mr. Perry submitted a business plan that
complied with the first PIP requirement by including 20 customers rather than 19. However, Mr.
Perry does not dispute that his weekly call reports did not reflect a plan to call at least five
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customers every day, nor that he did not take four different supplier representatives on calls with
him each month. He claims that he attempted to set up sales calls with Ken Coats, but does not
argue that he did make any sales calls with Mr. Coats, or that he informed Mr. Hooten that he
had difficulty scheduling calls with supplier representatives and/or Mr. Coats. Finally, Mr. Perry
failed to enter cost savings proposals into the VPP database or provide the proposals to Mr.
Hooten in any other format.
Mr. Perry presented evidence that he took steps toward or tried to comply with the PIP
requirements. He also shows that Mr. Hooten did not document any inadequacy concerning Mr.
Perry’s business plan or call log. Mr. Perry alleged that he did not receive any feedback regarding
his compliance with any of the PIP requirements; Mr. Hooten testified to the contrary.
Both Mr. Perry’s steps toward compliance and the dispute over feedback are immaterial,
however, because Hagemeyer’s standard inquired not whether Mr. Perry made some efforts
toward complying with the performance improvement plan or whether he complied with it upon
receiving appropriate feedback, but whether he did in fact comply with all of its requirements.
“Federal courts ‘do not sit as a super-personnel department that reexamines an entity’s business
decisions. No matter how medieval a firm’s practices, no matter how high-handed its decisional
process, no matter how mistaken the firm’s managers, the ADEA does not interfere. Rather our
inquiry is limited to whether the employer gave an honest explanation of its behavior.’” Elrod v.
Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (quoting Mechnig v. Sears,
Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988)).
Mr. Perry also proffers his March 2013 year-to-date gross margin numbers to show that
he was on track to meet the sales performance measure of the PIP, considered by Mr. Hooten to
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be its “most important” element, during the period between January 11 and April 1, 2013. (Doc.
32-2 at 303:18). But Mr. Perry’s sales during the first quarter of 2013 do not establish that his
total 2013 sales would have met the PIP goal of a yearly $500,000 gross margin, and the PIP
required “improved and sustained performance, in addition to meeting specific sales goals . . . .”
(Doc. 27-1 at 27).
Further, Mr. Perry and Mr. Hooten dispute whether Mr. Perry told Mr. Hooten that he
was obtaining his 2013 sales by communicating to customers that he would be fired if they did
not place orders. Accepting Mr. Perry’s testimony that he did not so inform Mr. Hooten, along
with Mr. Hooten’s statement that “[t]he manner in which [Mr. Perry] was generating those sales”
was “one of the reasons” Hagemeyer fired him, does not show that Mr. Perry’s failure to comply
with all of the specific PIP requirements was a pretextual reason for his firing or that Hagemeyer
would not have terminated him but for his age.
Mr. Perry has failed to meet his burden to show that Hagemeyer’s second stated reason
for terminating him, that he failed to meet each of the requirements of the PIP, was pretextual.
D.

Mosaic of Circumstantial Evidence

Alternately, rather than relying upon the McDonnell Douglas framework, a plaintiff may
present a “convincing mosaic” of circumstantial evidence permitting an inference of intentional
discrimination. Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (quoting
Silverman v. Bd. of Educ., 637 F.3d 729, 733 (7th Cir. 2011)).
Mr. Perry’s additional charges that Hagemeyer discriminated against him based on his
age—by (1) evaluating him under a higher and less favorable standard than younger employees;
(2) reassigning his accounts to a younger, less qualified employee; and (3) taking the U.S. Steel
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account away from him—are time-barred or not pled in his Complaint. However, because Mr.
Perry presented evidence in support of each of these allegations, the court will consider whether
they present a mosaic of evidence that would support an inference that age was the but-for cause
of Mr. Perry’s termination.
First, Mr. Perry argues that Hagemeyer held a younger account representative, Tab
Bowling, to a different, lower standard regarding account development. Mr. Bowling was three
years younger than Mr. Perry; the court assumes without deciding that here, the three-year age
difference made Mr. Bowling “substantially younger.” See Carter v. DecisionOne Corp., 122
F.3d 997, 1003 (11th Cir. 1997) (finding a three-year age difference sufficient to establish a
prima facie case of age discrimination); Suarez v. Sch. Bd. of Hillsborough Cnty., 638 F. App’x
897, 901 n.1 (11th Cir. 2016) (citing Carter and stating that the Eleventh Circuit has found small
age differences sufficient for purposes of establishing a prima facie case “where plaintiffs
presented substantial evidence of discriminatory animus beyond mere age difference”).
The record does not support a finding that Mr. Perry was held to a different or lower
standard than Mr. Perry. The evidence shows that as of March 2013, many of Mr. Bowling’s
most profitable accounts were those he had inherited from a discharged employee, Tom White, or
national accounts assigned to him. While Mr. Hooten criticized Mr. Perry for “asking me to give
him a piece of business that is already developed by someone else or is a large national account
customer” and stated, “I don’t think [Mr. Perry] has the drive or desire to put in the necessary
work,” Mr. Hooten did not similarly criticize Mr. Bowling, despite Mr. Bowling having not
personally developed his most profitable accounts. (Doc. 27-1 at 23). And Mr. Hooten
maintained that the company could hold Mr. Perry to a higher standard because of his 30 years of
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work experience with the company.
Mr. Bowling and Mr. Perry were not sufficiently similarly situated to show that
Hagemeyer treated Mr. Bowling from Mr. Perry regarding account development. See Connor v.
Bell Microproducts-Future Tech, Inc., 492 F. App’x 963, 965 (11th Cir. 2012) (citing Holifield v.
Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (“In order to make a valid comparison, the plaintiff
must show that he and the comparators are similarly situated in all relevant respects.”) For one
thing, the two representatives were based at different branches and covered different territories;
variations in account assignment would necessarily exist between territories.
More importantly, the two representatives differed vastly in their levels of tenure and
experience at the company. An employer may hold more experienced employees to a higher
standard of performance. See, e.g., Fallis v. Kerr-McGee Corp., 944 F.2d 743, 745 (10th Cir.
1991) (holding that evaluation of plaintiff, who held a high-level position, under a higher
standard than “younger, less experienced” employees did not, without more, show age
discrimination); Collins v. Okefenoke Rural Elec. Membership Corp., 2014 WL 7440887 at *11
(S.D. Ga. Dec. 29, 2014) (stating that the Eleventh Circuit has made clear that courts may
consider experience in determining whether comparators are similarly situated and declining to
“second guess” employer’s decision to hold employees with “vastly more experience” to a higher
standard in evaluating misconduct).
Second, the record simply does not show that Mr. Perry’s accounts were reassigned to
younger, less qualified employees. The evidence on this point shows that prior to the designation
of the U.S. Steel account as a house account, Mr. Perry gave a number of his accounts to other
account executives upon the request of Mr. Hooten. Mr. Perry affirmed in 2010 that he gave
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accounts to junior sales representatives, but the record does not reveal whether “junior” means
younger or merely less senior. Mr. Perry’s vague assertion in 2011 that accounts were taken from
him does not provide sufficient detail to show that age played any role in such action.
Third, though a genuine dispute exists as to the reasons motivating Hagemeyer’s 2009
designation of the U.S. Steel account as a house account, none of those reasons was Mr. Perry’s
age. Nor are the reasons necessarily inconsistent with each other. Regarding his loss of the U.S.
Steel account, Mr. Perry may have raised an inference that he was treated unfairly, but unfairness
is a far cry from intentional discrimination based on his age. The reduction of Mr. Perry’s salary
after the designation of the U.S. Steel account as a house account similarly does not show that the
account was taken from Mr. Perry because of his age, or that he was terminated because of his
age.
Mr. Perry additionally seems to argue that Hagemeyer’s treatment and termination of Mr.
White raise an inference that Hagemeyer’s proffered reasons for discharging Mr. White were
pretextual to show that Hagemeyer’s proffered reasons for terminating Mr. Perry were
pretextual. The record regarding Mr. White’s discharge is insufficiently developed for the court
to conclude that Mr. White’s firing was discriminatory based on his age. In other words, this
inferential chain lacks any hook providing an initial inference of age discrimination.
Mr. Hooten’s comment to Mr. Perry that Mr. White “was old and set in his ways and . . .
wasn’t going to change,” without any kind of context, certainly does not establish that
Hagemeyer terminated Mr. White because of his age and not because of his “stagnant or
declining” sales. (Doc. 32-2 at 78–79). Nor do Hagemeyer’s stated criteria for assessing which
account representative to discharge—“attitude, work ethic, energy, aggressiveness, somebody
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with a positive morale and positive energy around them”—establish pretext. See Stone v. First
Union Corp., 203 F.R.D. 532, 549 (S.D. Fla. 2001) (holding that a company’s statements that it
sought “young bankers” with “fresh new ideas and outlook” to be the company’s “energetic”
future” did not show that “age discrimination was the standing operating procedure”; neither did
the company’s use of the terms “aggressive” and “extremely high energy level” to describe
exceptional employees, as “these terms are not uniquely used to describe young people”). An
employer’s choice to make a termination decision based in part on subjective criteria does not,
without more, indicate pretext. (Doc. 32-2 at 85:23–25); see Chapman, 229 F.3d at 1034 (“A
subjective reason is a legally sufficient, legitimate, nondiscriminatory reason if the defendant
articulates a clear and reasonably specific factual basis upon which it based its subjective
opinion.”).
Mr. Perry also seems to argue that Mr. Hooten’s disregard of the time Mr. Perry spent
restocking the vending machines for Alabama Power, which prevented him from developing
other business, raises an inference of age discrimination. However, as with every other piece of
evidence Mr. Perry has presented, insensitivity or unfair treatment combined with Mr. Perry’s
status as the oldest or one of the older account representatives under Mr. Hooten’s supervision
does not show discrimination based on age.
Finally, the statements the court previously examined as possible direct evidence of
discrimination, Mr. Hooten’s statements about Mr. Perry’s retirement and the officers’ comments
about Mr. Hooten’s experience, do not constitute circumstantial evidence of age discrimination
for the same reasons they do not show direct discrimination.

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IV.

Conclusion
Mr. Perry has not raised a genuine issue of material fact that age was the “but-for” cause

of Hagemeyer’s decision to fire him and hire a younger employee to replace him, nor that age
was even a factor in Hagemeyer’s decision. Accordingly, the court GRANTS Defendant’s
Motion for Summary Judgment. The court will enter a separate order consistent with this
opinion.
DONE this 31st day of March, 2017.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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