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STEWARD v. SEARS ROEBUCK & COMPANY

April 6, 2004.

GUNNAR STEWARD Plaintiff,
v.
SEARS ROEBUCK & COMPANY Defendant



The opinion of the court was delivered by: JAN DUBOIS, District Judge

ORDER AND MEMORANDUM

ORDER

AND NOW, this 6th day of April, 2004, upon consideration of the Defendant's Motion for Summary Judgment (Document No. 12, filed October 24, 2003), Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment (Document No. 15, filed November 14, 2003), Defendant's Reply Brief in Support of Summary Judgment (Document No. 16, filed December 1, 2003), Plaintiffs Surreply in Opposition to Defendant's Motion for Summary Judgment (Document No. 17, December 10, 2003), IT IS ORDERED that Defendant's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART as follows:
(1) Defendant's Motion for Summary Judgment is GRANTED with respect to plaintiff's claims under the Age Discrimination in Employment Act for punitive damages and damages for pain and suffering, humiliation and embarrassment;
(2) Defendant's Motion for Summary Judgment is GRANTED with respect to plaintiffs claim under the Delaware Human Relations Act;
(3) Defendant's Motion for Summary Judgment is DENIED in all other respects.
  It is FURTHER ORDERED that a conference to schedule further proceedings will be conducted in due course. MEMORANDUM

 I. INTRODUCTION

  Plaintiff Gunnar Steward ("Steward") filed this action against his former employer, Sears, Robuck and Co. ("Sears"), alleging that Sears terminated his employment in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 261, et seq. ("ADEA"), and the Delaware Human Relations Act, 19 Del. Laws § 711, et seq. ("DHRA"). Steward later agreed to withdraw his DHRA claim.

  Sears moved for summary judgment on the ADEA claim based on the following three arguments: (1) Steward cannot establish aprima facie case of age discrimination; (2) Sears has presented a legitimate non-discriminatory reason for discharging Steward; and (3) Steward cannot establish that the reasons proffered by Sears for the discharge were a pretext for illegal discrimination.

 II. FACTS

  Steward began working for Sears on March 19, 1979 as a Lawn and Garden Technician. He worked in that position for approximately eight years until his promotion to Senior Technician in 1987. After eleven years as a Senior Technician, Steward was promoted to the position of Technical Manager in December 1998. Steward held this position until he was terminated on July 2, 2001.

  Throughout Steward's tenure as a Technician and Senior Technician, he received positive performance evaluations, regular pay increases and merit bonuses. Steward also received positive evaluations for his performance as a Technical Manager from two former District Service Managers ("DSM"), Alan Rushing and Roy Vasseur. Specifically, Mr. Rushing testified that his view of Mr. Steward's leadership skills "was very favorable." Rushing Depo. at 23, 25, 42, 43. Mr. Vasseuer also rated Steward as "above meets expectations" in both business results and in leadership.

  Steward alleges that his troubles at Sears began when Phillip Schweizer ("Schweizer") was hired as the DSM of the Wilmington Service Center in December 2000. From the time Schweizer started at Sears's Wilmington facility, Steward alleges that Schweizer treated him differently than the younger Technical Managers. These younger Technical Managers were: Brian Merkel ("Merkel"), age 35, Tony Carter ("Carter"), age 45,*fn1 and Mark DeWit ("DeWit"), age 34. Joyce Sipple, age 59, was the only Technical Manager under Schweizer's supervision who was older than Steward.

  On February 21, 2000, Steward received his first negative performance evaluation during his employment at Sears. The evaluation was completed by Schweizer who, on a scale of "1" to "5"*fn2 rated Steward as follows: "consistently meets expectations; solid, value-added performance" (3) in business results or production; "some expectations met" (2) in leadership; and "consistently meets expectations; solid, value-added performance" (3) in customer satisfaction. Despite the negative evaluation, Steward was awarded a 2% merit increase on March 1, 2001 and an annual bonus of $9,960 on March 15, 2001.

  As a consequence of the negative evaluation, Steward was placed on a Performance Plan for Improvement ("PPI"). The PPI raised four deficiencies in Steward's work performance: (1) failure to manage technicians, as multiple repair attempts were being made without Steward's involvement; (2) failure to follow-up with customer complaints; (3) inadequate preparation for weekly GAP*fn3 meetings; and (4) failure to meet a deadline for providing technicians' vacation information to Schweizer.

  Steward disputes the accuracy and/or significance of each of the criticisms raised in the PPI. First, Steward asserts he always consulted the "Repeat Multiple Attempt" report that monitored the attempts to complete a service call, and that Schweizer never provided him with documentation showing that he did not provide input to technicians when multiple attempts were required to complete a repair. Next, Steward contends that the only customer complaint raised in the PPI resulted from a technician having unexpected emergency gall bladder surgery during the scheduled repair. Steward claims that the repair was ultimately completed by another technician. Third, Steward argues that he always completed a GAP report in collaboration with two other Technical Managers — Carter and Sipple. Steward also alleges that a younger Technical Manager, Merkel, never participated in producing the GAP report and yet was never reprimanded for that failure. Finally, Steward claims that he completed the technician vacation schedules, although he was delayed a short time because the vacation slips were lost during an office move that Schweizer ordered without giving notice to Steward and while Steward was out of the office.

  Steward contends that despite his disagreement with criticisms raised in the PPI, he addressed all of the problems identified, and that he should have been taken off the PPI. Schweizer, however, extended the PPI. The 60-day PPI follow-up, given to Steward on April 26, 2001, raised four additional performance issues: (1) poor management of technicians Pandora, Lindsay and McNeese; (2) failure to follow-up with four customer complaints; (3) failure to proactively communicate with the DSM; and (4) massive backlog of repairs caused by inadequate involvement in the Parts Distribution Center ("PDC") process*fn4 and failure to staff properly.

  Steward disputes each of the criticisms raised in the 60-day follow-up PPI. Steward contends: (1) he had approximately 3,000 customers per month and that Schweizer's criticisms regarding customer service was "conjuring" issues to criticize; (2) there is no evidence in the customer reports for three of the customers alleged to have registered complaints; (3) the customer report for one of the alleged complainants states "customer satisfied with this service;" (4) there was a legitimate reason for the single customer complaint that Steward can recall — the customer wanted repairs done outside the service contract; (5) all of the Technical Managers had customer complaints and, to his knowledge, only Steward was singled out for reprimand on this issue; (6) a backlog in the service unit was not unusual and occurred every year; (7) all of the Technical Managers shared responsibility for the backlog, yet to his knowledge, no other Technical Manager was criticized; (8) Steward properly supervised his technicians, attempting to be flexible with Pandora because she had a runaway child at home, and placing each of the other two technicians on a PPI to improve their performances; (9) Steward cleaned the tractor yard as requested by Schweizer, although doing so was not his job responsibility; and (10) Steward asked to discuss the PPI extension with Schweizer, but Schweizer refused to meet with him and avoided communication and interaction.

  As further circumstantial evidence of age bias, Steward alleges that Schweizer singled out Steward for additional duties that were not his responsibility, including cleaning up the tractor yard and putting Steward in charge of the PDC process. According to Steward, the added duties created an insurmountable workload, as his responsibilities were already greater than those of the younger Technical Managers because he supervised more technicians. When Steward questioned Schweizer about the added responsibility, Schweizer responded, "Hell, you are old enough, you have been around long enough, you should handle this." Steward contends that this comment, along with the fact that Steward was singled out for additional assignments, substantiates his claim of age discrimination.

  On June 26, 2001,*fn5 Schweizer performed another written follow-up evaluation addressing issues raised by the initial February 26, 2001 PPI. The June 26, 2001 follow-up PPI alleged the following performance related deficiencies: (1) Steward inappropriately handled two more customer complaints; (2) Steward failed to recruit technicians necessary to reduce the backlog; (3) two weeks after shipping a number of mowers to New York to alleviate the backlog in Wilmington, the Wilmington facility had a 70 order backlog; (4) to alleviate the backlog, Schweizer had to ask Steward's technicians to work overtime on a Sunday. Steward did not participate in the Sunday overtime.

  Steward disputes the complaints raised in the June 26, 2001 follow-up PPL Steward contends: (1) he did not inappropriately handle the customers listed in the PPI and specifically recalls addressing the problem of one of the identified customers; (2) Schweizer could not recall the nature of that customer's problem and provided no documentation of the customer's complaint; (3) Steward hired one individual, Morice Anderson, and was prepared to hire another individual, Ray Fleckinger, but was refused authorization to hire him because Sears "did not have the man hours;" (4) Steward disputes having a 70 order backlog; (5) Steward claims that a backlog occurred every year and that the backlogs were the responsibility of all the Technical Managers; (6) Schweizer never asked Steward to work the Sunday overtime to take care of the backlog, which Steward claims was consistent with Schweizer's pattern of ignoring him.

  On July 2, 2001, Sears terminated Steward. According to Steward, Schweizer called him into his office. DeWit and Donna Desilets, Sears' Human Resources Manager, were also present. Schweizer informed Steward of his decision to terminate him and told Steward that there was to be no discussion. Schweizer then escorted Steward out of the building through the customer service routing area, causing Steward significant humiliation after 23 years of service at Sears. Steward was fifty years old at the time of his discharge.

  On December 14, 2001, Steward filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging that his termination was due to age discrimination. Steward received a right to sue letter from the EEOC dated September ...


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