ROBINSON v. MONDELEZ INTERNATIONAL, INC.

Filing 32

MEMORANDUM AND/OR OPINION SETTING FORTH THE REASONS WHY THE COURT IS GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOCET NO. 20). AN APPROPRIATE ORDER FOLLOWS. SIGNED BY HONORABLE GENE E.K. PRATTER ON 1/11/17. 1/11/17 ENTERED AND COPIES E-MAILED.(rab, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DAVID C. ROBINSON,
Plaintiff,
v.
MONDELEZ INT’L, INC.,
Defendant.

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CIVIL ACTION

No. 15-6057

MEMORANDUM
PRATTER, J.

JANUARY 11, 2017

David Robinson claims that his former employer, Mondelez International, terminated his
employment because of his age. Mondelez now seeks summary judgment in its favor, arguing
that it had a legitimate, non-discriminatory reason to terminate Mr. Robinson’s employment,
given his less-than-stellar track record. Mr. Robinson counters that his job performance was
good and that there were younger employees with worse performance issues whose employments
were not terminated. After hearing oral argument, the Court will grant the motion.
BACKGROUND
David Robinson claims that he was terminated from his job as a sales representative for
Mondelez International, one of the world’s largest snack companies, on September 26, 2014
because of his age. He was sixty-two (62) years old. As a sales representative, it was Mr.
Robinson’s responsibility to order products for stores within his territory, stock the shelves,
rotate products and remove “out of code” (or expired) products, and build relationships with
store managers. From June 2010 through April 2014, Mr. Robinson reported to Joe Shiller. In
2010, Mr. Robinson failed to meet his sales objectives and received a performance review that
stated he “partially meets expectations.” In 2011, he received a “meets expectations” rating.
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In January 2012, Mr. Robinson was disciplined for “theft of company time” in
connection with an audit of his GPS system, and he was placed on final warning. Another
employee who was younger than Mr. Robinson was fired for the same offense at around the
same time. Mr. Robinson contends that his misuse of the GPS system was due to not
understanding the technology and not receiving appropriate training for using it, not to any intent
to cheat the company. However, at his deposition, he also stated that the discipline relating to
the GPS incident had nothing to do with his age.
In 2012, Mr. Robinson again received a “partially meets expectations” rating, based in
part on a failure to meet sales goals. On May 8, 2013, he received a documented verbal warning
based on poor sales, out of stock items, unacceptable and light shelf conditions, and poor
communication with store management. One of the stores in Mr. Robinson’s territory at that
time had threatened to ask for Mr. Robinson to be removed from that store, and such a removal
in itself is a terminable offense. Mr. Robinson again admitted at his deposition that this
discipline had nothing to do with his age. At other times in 2013, Mr. Robinson performed well.
In early 2014, he received a Circle of Champions award for his 2013 sales, and he earned a trip
to California for improving sales over 2012, as well as a merit pay increase.
In March 2014, Mr. Robinson asked Gary Schmidt, a Human Resources representative,
about early retirement. There is no evidence in the record that Mr. Schmidt spoke with any of
Mr. Robinson’s supervisors about this request. Mr. Robinson, however, states that Mr. Shiller
was present when he asked Mr. Schmidt about early retirement.
Starting in April 2014, Mr. Robinson was assigned to a different territory and supervised
by District Manager Jacqueline Moroz. In late May and early June, Mr. Robinson had at least
two incidents where his stores had excessive out of code products and empty, mislabeled

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displays. On June 18, 2014, Ms. Moroz sent Mr. Robinson an email warning him that he was
well below his sales objective. Two days later, Ms. Moroz sent a note to Work Force Solutions,
Mondelez’s outside employer relations specialist who managed employment termination
decisions with input from Mondelez’s human resources department, in which she noted
excessive out of code products in Mr. Robinson’s stores. On June 23, 2014, Mr. Robinson
received a final written warning about excessive out of code products and unacceptable shelf
conditions. At least one store at which there were issues outlined in the final warning was a
Walmart store to which Mr. Robinson had only recently been assigned, and which had had ongoing issues that stretched back before Mr. Robinson took over responsibility for that store. Mr.
Robinson disagreed with the written warning and documented his disagreement.
In July 2014, Mr. Robinson began reporting to District Manager Claudia McCullough.
The Retail Merchandising Supervisor for the team was Colleen Thiel. Ms. Thiel had concerns
about store conditions in Mr. Robinson’s territory, which she attributed to Mr. Robinson’s poor
ordering and poor communication with store personnel. In Mr. Robinson’s 2014 mid-year
review, which was prepared by both Ms. Moroz and Ms. McCullough, he was rated as “off
track” to meet his goals. His review stated that he was ranked 199 out of 211 sales
representatives in the region, 41 out of 42 in the market, and 11 out of 11 on his team. His sales
numbers for the first six months of 2014 were, at best, inconsistent, sometimes at or above
expectations and other times below target.
On July 3, 2014, Ms. McCullough sent Mr. Robinson an email expressing concern with
out of stock products, not servicing stores early enough, and poor communication with store
managers. On July 29, she sent another email complaining of poor shelf conditions. Throughout

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2013 and 2014, Mondelez also received a number of complaints from store managers about Mr.
Robinson’s performance.
On September 11, 2014, Ms. Thiel sent Mr. Robinson an email complaining about a
number of the same issues complained of before, such as out of stock products, insufficient
signage, and poor shelf integrity. Mr. Robinson disagreed with Ms. Thiel’s characterization of
the situation at at least two of the stores, and he attributed her mischaracterization to a lack of
familiarity with the stores in question. On September 22, 2014, Mr. Robinson was suspended for
poor performance, and on September 26, 2014, Mr. Robinson’s employment was terminated for
his poor performance. Mr. Robinson counters that his sales numbers in July and August were
higher than his objectives, and that even after termination, he received a bonus for high
September sales.
Mr. Robinson testified at his deposition that Ms. McCullough asked him at some point
whether he planned to retire soon, and that she constantly checked up on his stores while not
doing the same for five other sales representatives she supervised who did not meet their sales
objectives in July and August 2014. He also testified that Ms. Thiel did the same. He
complained that Ms. Moroz checked Mr. Robinson’s newly assigned stores for out of code
product shortly after he was assigned to them.
Mr. Robinson’s position was later filled by someone under the age of 40. Mr. Robinson
offers, in a document he created, three potential comparators who he says are under the age of
40: James Thomson, a senior service representative who had more than 1000 out of code
products and did not receive discipline; Alyson Baehrle, a senior service representative who had
out of code products in two stores and who had a store manager ask Mondelez to remove her
from the manager’s store; and Veronica Baez, a sales representative who reported to Ms.

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McCullough and who was barred from servicing a particular store by a store manager until Ms.
McCullough intervened.
Mr. Robinson then filed this suit, alleging violations of the Age Discrimination in
Employment Act (ADEA) and the Delaware Discrimination in Employment Act. 1 After the
completion of discovery, Mondelez filed a motion for summary judgment, seeking the dismissal
of both counts.
LEGAL STANDARD
A court shall grant a motion for summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). An issue is “genuine” if there is a sufficient evidentiary basis on
which a reasonable jury could return a verdict for the non-moving party. Kaucher v. Cnty. of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). A factual dispute is “material” if it might affect the outcome of the case under
governing law. Id. (citing Anderson, 477 U.S. at 248). Under Rule 56, the Court must view the
evidence presented on the motion in the light most favorable to the non-moving party. See
Anderson, 477 U.S. at 255. However, “[u]nsupported assertions, conclusory allegations, or mere
suspicions are insufficient to overcome a motion for summary judgment.” Betts v. New Castle
Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010).
The movant bears the initial responsibility for informing the Court of the basis for the
motion for summary judgment and identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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In addition to its arguments on the merits of Mr. Robinson’s claims, Mondelez also raised arguments
that he failed to exhaust his administrative remedies. Mr. Robinson responded to those arguments, and
Mondelez conceded that its exhaustion arguments failed with respect to the ADEA claim. Later, at a
Chambers conference, Mr. Robinson voluntarily withdrew his Delaware state law claim. Thus, the Court
need not discuss the exhaustion arguments or the state law claim in this opinion.
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Where the non-moving party bears the burden of proof on a particular issue, the moving party’s
initial burden can be met simply by “pointing out to the district court that there is an absence of
evidence to support the nonmoving party’s case.” Id. at 325. After the moving party has met the
initial burden, the non-moving party must set forth specific facts showing that there is a
genuinely disputed factual issue for trial by “citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or declarations,
stipulations . . . , admissions, interrogatory answers, or other materials” or by “showing that the
materials cited do not establish the absence or presence of a genuine dispute.” Fed. R. Civ. P.
56(c). Summary judgment is appropriate if the non-moving party fails to rebut by making a
factual showing “sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
DISCUSSION
Under the ADEA, an employer may not “discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). The
burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
is the appropriate analysis for summary judgment motions in cases alleging age discrimination
where, as here, there is no direct evidence of discrimination. Torre v. Casio, Inc., 42 F.3d 825,
829 (3d Cir. 1994). To show an inference of age discrimination the plaintiff must show that he
“lost out because of his age.” O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312
(1996) (holding that the relevant issue is whether the evidence could support a reasonable
factfinder’s conclusion that a discriminatory animus served as the basis for the employer’s
decision); Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 355 (3d Cir. 1999). Proof of a

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prima facie case raises an inference of discrimination, and that inference has the force and effect
of a rebuttable presumption. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981).
Under the McDonnell Douglas test, in order to establish a prima facie case of age discrimination,
a plaintiff must demonstrate by a preponderance of the evidence that he or she: (1) is at least 40
years of age; (2) was qualified for the position; (c) suffered an adverse employment action; and
(d) younger employees were treated more favorably, creating an inference of age discrimination.
Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 136 (3d Cir. 1997).
If a plaintiff establishes a prima facie case, the defendant then must “articulate some
legitimate, nondiscriminatory reason for the adverse employment action.” Doe v. C.A.R.S. Prot.
Plus, Inc., 527 F.3d 358, 370 (3d Cir. 2008). If the defendant does so, the plaintiff then has the
burden of showing that the defendant's proffered reasons for the adverse action are pretextual.
At the summary judgment stage, the plaintiff must meet this burden by submitting “evidence
which (1) casts doubt upon the legitimate reason proferred by the employer such that a factfinder could reasonably conclude that the reason was a fabrication; or (2) would allow the factfinder to infer that discrimination was more likely than not a motivating or determinative cause
of the employee’s termination.” Id. (citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
The plaintiff must “present evidence contradicting the core facts put forward by the employer as
the legitimate reason for its decision.” Kautz v. Met–Pro Corp., 412 F.3d 463, 467 (3d Cir.
2005). Finally, in deciding a dispositive motion under the McDonnell Douglas framework, the
Court recognizes that “evidence supporting the prima facie case is often helpful in the pretext
stage, and nothing about the McDonnell Douglas formula requires [the Court] to ration the
evidence between one stage or the other.” Doe, 527 F.3d at 370.

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Mondelez does not contend that Mr. Robinson failed to meet his burden in setting forth a
prima facie case, but argues that Mr. Robinson’s overall performance was consistently poor,
citing a “tsunami of complaints about every aspect of his performance,” and concluding that Mr.
Robinson cannot rebut these legitimate, non-discriminatory reasons for termination. Mondelez
recited in detail Mr. Robinson’s performance issues, including, at various times, poor sales, out
of stock items, unacceptable and light shelf conditions, and poor communication with store
management.
Mr. Robinson first argues that there is sufficient evidence of pretext because he has
identified three younger comparators who he claims had similar or worse infractions than he did
but whose jobs were not terminated. Mr. Robinson has not, however, shown that that these
individuals were actually similarly situated. “While similarly situated does not mean identically
situated, the plaintiff must nevertheless be similar in all relevant respects.” Opsatnik v. Norfolk
Southern Corp., 335 Fed. App’x. 220, 223 (3d Cir. 2009) (internal quotation marks omitted).
Here, for instance, for each of the three supposed comparators Mr. Robinson identified, he only
cited at most a small number of infractions (albeit sometimes involving a large number of out of
code products), whereas Mondelez identified multiple issues concerning Mr. Robinson’s
performance over a period of several years. Also, two of the comparators identified by Mr.
Robinson did not have the same job Mr. Robinson had and may not have had the same
supervisor. Furthermore, Mr. Robinson offers no actual evidence of these employees’ age, other
than his own assumption that they were younger than he was. Based on this limited information,
the Court cannot conclude that these proffered comparators were similarly situated such that any
inferences can be drawn from the fact that their jobs were not terminated, while Mr. Robinson’s
was.

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Mr. Robinson also notes that he received a performance award and a merit increase in the
year immediately before the termination and that his sales numbers in the final few months of his
employment were on target. However, “[p]retext is not established by virtue of the fact that an
employee has received some favorable comments in some categories or has, in the past, received
some good evaluations.” Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 528 (3d
Cir. 1992). Moreover, Mr. Robinson does not provide any evidence that the litany of complaints
that Mondelez had with his performance were unfounded, and it is clear that sales numbers were
not the only concern that Mondelez had with Mr. Robinson’s performance.
Mr. Robinson also cites statements by two decisionmakers that he claims show age bias,
such as his supervisors asking him if he planned to retire. However, those stray comments,
which were made outside of the context of the decision-making process and which are innocuous
on their face, are not enough to overcome Mondelez’s legitimate, non-discriminatory reasons for
terminating Mr. Robinson’s employment. See, e.g., Salkovitz v. Pioneer Electronics (USA) Inc.,
188 Fed. App’x. 90, 94 (3d Cir. 2006) (a handful of remarks about retirement plans and age were
not strong enough to show pretext, especially when they were not directly connected to
plaintiff’s termination or to any discriminatory motive); Cellucci v. RBS Citizens, N.A., 987 F.
Supp. 2d 578, 592 (E.D. Pa. 2013) (granting summary judgment when performance issues were
well documented, even though plaintiff cited a “handful” of remarks made by her supervisor
concerning her “age and retirement plans”); Kelly v. Drexel Univ., 907 F. Supp. 864, 877 (E.D.
Pa. 1995) (granting summary judgment despite a comment from a supervisor about retirement).
Thus, Mr. Robinson has not met his burden to show that Mondelez’s legitimate, nondiscriminatory reason for terminating him were merely a pretext for age discrimination.

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CONCLUSION
For the foregoing reasons, the Court will grant Mondelez’s Motion for Summary
Judgment. An appropriate Order follows.
BY THE COURT:

S/Gene E.K. Pratter
GENE E.K. PRATTER
United States District Judge

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