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BREWER v. QUAKER STATE OIL REF. CORP.

February 1, 1995

JUDSON C. BREWER, Plaintiff,
v.
QUAKER STATE OIL REFINING CORPORATION and QUAKER STATE CORPORATION, Defendants.



The opinion of the court was delivered by: SEAN J. MCLAUGHLIN

 McLAUGHLIN, J.

 Plaintiff Judson C. Brewer ("Brewer") was employed as a sales representative for Quaker State Corporation until his termination from the company in 1992 at the age of 53. As a result of his termination, Brewer has filed this action against Defendants Quaker State Corporation and Quaker State Oil Refining Corporation (collectively "Quaker State"), alleging that Defendants' actions violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., and Michigan's anti-discrimination statute, the Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS §§ 37.2101 et seq. *fn1" This Court has jurisdiction over Plaintiff's claims pursuant to 29 U.S.C. 626(c)(1), 28 U.S.C. §§ 1331 and 1343(a)(4), and pendent and supplemental jurisdiction.

 Presently before the Court is Defendants' Motion for Summary Judgment on both counts. For the reasons set forth below, Defendants' motion will be granted.

 I. BACKGROUND

 Not surprisingly, the parties differ in their opinions of Brewer's performance while employed at Quaker State. Brewer argues that his job performance was generally satisfactory and that his termination for alleged poor performance was a mere pretext for discrimination based on his age. Brewer further submits that many complaints about his performance were exaggerated and that his discharge was orchestrated in accordance with a company policy favoring a younger work force. Defendants maintain that Brewer was fired only after extended probation for recurring work problems. They also claim that Brewer was given repeated warnings that he would be terminated if his performance did not improve. Notwithstanding this significant difference in perspective, it appears that the following facts are undisputed.

 While in the Pittsburgh Division, Brewer was supervised by two different division managers. From roughly 1973 to 1987, Brewer reported to Bruce Drummond. (Id. at 23, 25; Drummond Deposition at 5.) From approximately 1987 to 1989, Brewer reported to Michael O'Donnell. (Brewer Depo. at 25; O'Donnell Depo. at 11-13, 21.) During their respective tenures, both Drummond and O'Donnell encountered certain problems with Brewer's performance and even placed Brewer on probation. (Brewer Depo. at 32-36; Drummond Depo. at 20-22; O'Donnell Depo. at 22-23.) For example, Drummond testified at his deposition to having received several calls from Brewer's clients stating that they had run out of oil or had not seen their sales representative in some time. (Drummond Depo. at 17-20.) In addition, Drummond placed Brewer on verbal probation on one occasion after Brewer misinformed Drummond as to his whereabouts and was found out of his sales territory during work hours. (Drummond Depo. at 20-22.) Brewer was advised that, if he was ever again found in a location different from what his itinerary indicated, he would be terminated. (Id. at 21.)

 Further problems with Brewer's work performance were documented while he was under O'Donnell's management. In January of 1989, O'Donnell confronted Plaintiff and placed him on a ninety-day probationary period for various problems, including customer complaints about continually running out of oil and never seeing their sales representative, poor follow up with projects, inaccurate and incomplete paperwork, short work days, and lack of organization. O'Donnell warned Brewer that Brewer would be fired if he did not permanently improve in these areas. (Brewer Depo. at 34-36 and Ex. 1.) Shortly after Brewer completed this probationary period, the Pittsburgh Division was closed and Brewer transferred to the Detroit Division where he replaced a salesman in his mid-twenties. (Brewer Depo. at 51-54, 61, and Ex. 12.)

 Upon being transferred to Detroit, Brewer came under the supervision of District Manager Paul Pfauser, who ultimately recommended Brewer's termination. (Brewer Depo. at 54.) In his first yearly evaluation under Pfauser, Plaintiff was rated as generally competent, with lower marks for responsibility and planning. Brewer was advised by Pfauser that he needed to work more closely with his accounts and set higher standards for himself. (Brewer Depo. Ex. 12.)

 In May of 1991, shortly before his second annual review, Pfauser notified Brewer about various areas in which he needed to improve, such as spending more time in the field and less in the office, making more efficient use of his daily schedule to include more client prospecting, following up with requests from accounts and management, improving the timeliness and completeness of his sales reports, and eliminating problems with orders and missed messages. (Brewer Depo. Ex. 2.) One month later, Brewer received his formal evaluation in which he received marginal or unacceptable ratings in all categories. (Brewer Depo. Ex. 13.) In terms of an overall evaluation, Pfauser commented that Brewer "needs to get back on track. Work effort has fallen off since last appraisal and Judd has not made a strong effort to aid in that slide. Closer supervision and training is required." (Id.)

 By August, 1991, Pfauser was again addressing certain alleged problems with Brewer's work performance, such as poor follow up on customer requests, not returning calls from accounts, too little time spent in his territory, and late and unclear reports. (Brewer Depo. Ex. 4.) Pfauser sent Brewer a memo on or around August 11, 1991 which outlined these concerns and stated, in relevant part:

 
These represent serious problems which must be addressed for you to remain employed by Quaker State. As you know, this is not the first time these problems have been brought to your attention. In the past, when performance problems have been discussed, you have made an effort to bring your work level up, but it does not continue for very long. This up and down performance will no longer be tolerated and improvement must be permanent. (Id.) (Emphasis added.)

 Plaintiff was placed on a 90-day probationary period and prepared a "self development plan" to help him improve his performance. (Brewer Depo. Ex. 5.) Pfauser also established a plan to help Brewer perform better.

 Pfauser and Brewer met periodically thereafter to discuss Brewer's progress. (Brewer Depo. Ex. 6, 7 and 9.) On September 9, 1991, Pfauser documented continued problems, including lack of proper customer contact, late and unsigned documentation, and unclear or improper order forms. Pfauser noted that Plaintiff was "not moving in a positive direction..." and warned that he had "60 days left to increase his effort or he will be let go." Brewer acknowledged these comments by signing the report, but offered no additional comments of his own. (Brewer Depo. Ex. 6.)

 Similar problems were discussed with Brewer again on September 23, 1991, including Brewer's apparently short work days and too few customer contacts. Plaintiff was again warned that he had 50 days to improve his performance or he would be terminated. Again, Brewer acknowledged these comments by signing the report, but provided no remarks of his own. (Brewer Depo. Ex. 7.)

 At the end of the ninety-day probation, Brewer met with Pfauser, who once again raised certain concerns about Brewer's performance, including short working days and failure to adequately communicate with customers. (Brewer Depo. Ex. 9.) Notwithstanding these problems, Pfauser decided to extend Plaintiff's probationary period an additional 60 days. (Brewer Depo. at 142-43.) However, on February 18, 1992, Pfauser again documented alleged work deficiencies in a memorandum sent to Brewer. Among other things, the memorandum noted that, in the past nine months, Quaker State had received over 13 customer complaints regarding Brewer. These included complaints of customers running out of oil, misprocessing of orders or promotional arrangements, failure to advise accounts of credit problems, and the like. (Brewer Depo. Ex. 10.) Although Brewer commented on the report to the effect that his performance had improved, he did not dispute any of the alleged problems. (Brewer Depo. Ex. 11.) Following this episode, Pfauser requested approval to terminate Brewer. Approval was granted and Brewer was discharged in March of 1992. (Pfauser Depo. Ex. 31; Brewer Depo. Ex. 14.)

 Defendants move for summary judgment on two grounds. First, they argue that Plaintiff cannot establish a prima facie case of age discrimination because there is insufficient evidence to support a reasonable finding that Brewer was qualified for the position of sales representative. (Defendants' Mem. in Support of Mot. for Summary Judgment at 25-27.) Second, Defendants argue that, even if a prima facie showing of age discrimination is made out, Defendants have articulated a legitimate non-discriminatory reason for Brewer's termination. Thus, under the analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), and St. Mary's Honor Ctr. v. Hicks, 125 L. Ed. 2d 407, U.S. , 113 S. Ct. 2742 (1993) and their progeny, *fn2" Plaintiff bears the burden of demonstrating that Quaker State's articulated reasons for his termination are merely pretextual and that the real reason was discriminatory. Defendants maintain that the record lacks sufficient evidence to support a reasonable finding that Brewer's discharge was based on age. (Mem. in Support of Defendants' Mot. for Summary Judgment at 28-39.)

 In his brief in opposition to summary judgment, Plaintiff has outlined a number of factors which he believes constitute circumstantial evidence of an age discrimination policy at Quaker State. Brewer submits that this evidence is sufficient to create a genuine issue of fact as to whether his termination was age-related. (Plaintiff's Br. in Opp. at 10-16.)

 First, Brewer points to a company newsletter published in April of 1990 in which Quaker State's chairman and CEO, Jack Corn, commented that his "seconds-in-command" are "two of our star young men in their mid-40's. That age group is our future." (Plaintiff's Append. at Tab J.) Plaintiff alleges that, following this publication, a company policy favoring a younger work force was put into effect which eventually influenced the decision to terminate Plaintiff. (Complaint P 12.)

 It is also alleged that one of Quaker State's regional managers, Deno Debacco, made a comment to Bruce Drummond following the closing of the Pittsburgh Division to the effect that Debacco had "cleaned up" the "dead wood" in Pittsburgh. (Drummond Depo. at 42-43.) Plaintiff posits that "dead wood" denotes an older work force employed in the Pittsburgh Division. (Plaintiff's Br. in Opp. at 15-16.)

 Brewer also claims that Pfauser was "coached" on how to terminate him effectively by Wanda Weaver, manager of employment and compensation at Quaker State's home office. Specifically, Plaintiff claims that Pfauser was instructed to "document as much as possible" and "identify specific deficiencies" in Brewer's performance. (Plaintiff's Append. at Tab H.) As evidence of this discriminatory intent, Plaintiff refers the Court to a memorandum sent by Weaver to Pfauser in August of 1991 which advised Pfauser on how to proceed with Brewer ...


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