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SNIK v. VERIZON WIRELESS

May 21, 2004.

WAETER T. SNIK
v.
VERIZON WIRELESS



The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge

MEMORANDUM & ORDER

Presently before the Court is the Motion for Summary Judgment filed by Defendant Verizon Wireless. (Doc. No. 18.) Plaintiff sued Defendant under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"), and the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. § 955, 962 ("PHRA"), after Defendant failed to hire/promote Plaintiff to the position of Sales Manager — Business Accounts. For purposes of this motion, Defendant concedes that Plaintiff has set forth sufficient evidence to show a prima facie case of age discrimination. The question presented is whether Defendant has met its burden of production that it had a legitimate, non-discriminatory reason for deciding not to hire Plaintiff as Sales Manager, and, if so, whether Plaintiff has met his burden of persuasion showing that Defendant's explanation is a pretext for discrimination. For the following reasons, we conclude that Defendant has met its burden of articulating a legitimate, non-discriminatory reason for deciding not to hire Plaintiff as Sales Manager, but that Plaintiff has not met his burden of showing that Defendant's explanation is a pretext. Accordingly, we will grant Defendant's motion for summary judgment.

I. BACKGROUND AND UNDISPUTED FACTS A. Plaintiff's Employment History

  Plaintiff Walter Snik is fifty-two years old. He began working for Defendant Verizon Wireless in November, 1998, as a retail sales representative in Defendant's Lehigh Valley Mall store. (Doc. No. 20, Ex. A ("Snik Dep.") at 25, 27.) Prior to joining Defendant, Plaintiff had worked extensively in the telephone industry. From 1972 to 1996, Plaintiff held various positions with NYNEX Corporation. (Doc. No. 18, Ex. D-2 at 2-3.) In 1981 or 1982, NYNEX promoted Plaintiff to the position of sales manager. (Snik Dep. at 9.) As sales manager, Plaintiff was responsible for managing NYNEX's accounts with the Borough of Manhattan in New York City. (Id. at 10.) In this position, Plaintiff supervised between four and nine people. (Id.) He also provided sales training to new NYNEX employees. (Id. at 12.) In 1996, Plaintiff retired from NYNEX. (Id. at 15.)

  In 1996, Plaintiff was hired by Omnipoint Communications, which was a startup wireless telephone company. (Id.) At Omnipoint, Plaintiff worked as a corporate account manager. (Id. at 16.) As corporate account manager Plaintiff focused on selling wireless telephone services to New York City. (Id.) He did not supervise anyone at Omnipoint. (Id. at 17.) Plaintiff encountered difficulties with his job at Omnipoint. He testified that he was "spinning his wheels as a corporate account manager." (Id. at 19.) On July 1, 1998, Omnipoint terminated Plaintiff for "unsatisfactory performance."*fn1 (Doc. No. 18, VW/Snik at 0196-0197.)

  After leaving Omnipoint, Plaintiff saw an advertisement in the newspaper for a job as a retail sales representative with Defendant. (Snik Dep. at 20.) Plaintiff submitted his resume to Defendant and was called in for an interview. (Id.) Plaintiff was called back for a second interview, during which he learned Defendant's procedures regarding promotions. (Id. at 22.) Plaintiff was told that with his background and credentials, he would be able to advance to higher positions with Defendant. This meant that if Plaintiff were hired as a retail sales representative, he would be able to apply for other positions with Defendant when those positions were posted on the company internet web-site. (Id. at 22-23.) Defendant does not have a policy or practice of promoting internal applicants prior to making positions available to candidates from outside the company. Rather, it posts positions internally and recruits external candidates simultaneously. (Doc. No. 18, Scherzer Dep. at 12.) At the end of Plaintiff's second interview, he was told that he would be hired as a retail sales representative, subject to his successfully completing alcohol and drug tests, and a third interview. (Snik Dep. at 23.) After successfully completing these requirements, Plaintiff was hired as a retail sales representative in one of Defendant's new stores, located in the Lehigh Valley Mall. (Id. at 24.) Plaintiffs direct supervisor at the Lehigh Valley Mall store was Gus DeKrell, the assistant manager of the store.*fn2 (Id.)

  As a retail sales representative at the store in the Lehigh Valley Mall, Plaintiff would greet customers as they entered the store, find out their cellular telephone needs, and attempt to sell them cellular telephone services and products. (Id. at 27.) Plaintiff was one of three retail sales representatives who worked in the Lehigh Valley store. (Id. at 28.) Plaintiff's employer evaluations show that his performance as a retail sales representative was generally "satisfactory" or "on target." (Snik Dep. at 37-38; Doc. No. 18, Exs. D-4, D-5, D-7, D-8, D-34.) At times, Plaintiff performed better than satisfactory. (See, e.g., Doc. No. 18, Ex. D-5 (noting that for the second half of 1999, Plaintiffs "previous sales skills, and attention to detail in the sales process enabled him to achieve above average scores").) Other times, Plaintiffs performance was less than satisfactory. (See, e.g., Ex. D-4 (noting that for the first half of 1999, Plaintiff "consistently falls below target on accessories and enhanced services"), Ex. D-8 (noting in January, 2001, that Plaintiff "should pursue more roles in leading the team").) Sometimes Plaintiff would fail to meet his sales quota. For example, in September, 2000, DeKrell issued Plaintiff a letter of concern because Plaintiff had only achieved eighty-nine percent of his quota for that month. (Snik Dep. at 71; Doc. No. 18, Ex. D-14.) At other times, Plaintiff would exceed his sales quota. Notably, in 1999 and again in March, 2001, Plaintiff was invited to Defendant's Winner's Circle Dinner which recognizes employees who exceeded their sales objectives for that year. (Snik Dep. at 60.)

  B. Plaintiff Applies for the Sales Manager Position

  At some point, Plaintiff applied for the position of senior retail sales representative, but was turned down for that position. (Id. at 34.) Plaintiff does not claim that Defendant discriminated against him when it declined to promote him to senior sales representative. (Id.) Sometime later, Plaintiff saw a listing for the Sales Manager position on Defendant's website. (Id. at 76.) In accordance with Defendant's policies, on or about March 8, 2001, Plaintiff e-mailed his application for the Sales Manager position, resume and an employee profile form to DeKrell for his approval. (Id. at 76-80; Doc. No. 18, D-16.) DeKrell approved Plaintiff's application. DeKrell's approval did not mean that Plaintiff was qualified for that position. It simply meant that Plaintiff met certain minimum criteria needed to apply for the Sales Manager position. (Snik Dep. at 143.) In fact, DeKrell did not believe that Plaintiff had demonstrated the leadership qualities required of a good Sales Manager. (Doc. No. 18, DeKrell Dep. at 10.)

  Jeffrey Suskind was responsible for hiring for the position of Sales Manager. (Doc. No. 18, Suskind Cert. ¶¶ 1.) Suskind screened three candidates for the position: Plaintiff; Patrick Fahs, a thirty-three year old retail store manager who had worked for Defendant since 1997; and Robert Kozloski, a thirty-three year old external candidate. (Doc. No. 18, Kozloski Dep. at 4; Campbell Dep. at 3; Scherzer Dep. at 21; Suskind Cert. ¶ 8.)

  Suskind contacted Plaintiff on March 13, 2001, to conduct a telephone interview, a procedure he also followed with respect to Fahs, the other internal candidate. (Suskind Cert. ¶ 2; Snik Dep. at 100, 113.) During the call, Suskind reviewed Plaintiff's resume and they discussed Plaintiff's work experience. (Snik Dep. at 102-105.) The call lasted less than ten minutes. (Id. at 100.) Plaintiff felt that Suskind had not reviewed his resume prior to the call. (Id. at 103-104.) At the end of the call, Suskind complimented Plaintiff on his work experience. (Id. at 103.) He also alluded to the fact that once he was finished reviewing all of the resumes that he had before him, he would call Plaintiff to set up an in-person interview. (Id.) Suskind remembers that during the call, Plaintiff did not provide examples of how Plaintiff had successfully motivated a team in the past, or of his leadership abilities. (Suskind Cert. ¶ 4.) He also did not feel that Plaintiff expressed a strong desire for the Sales Manager position. (Id.) Plaintiff did not ask Suskind about what the position entailed. (Snik Dep. at 118.)

  Shortly after the phone interview, Suskind solicited input about Plaintiff's qualifications for the Sales Manager position. He did not speak with Plaintiff's immediate supervisor, DeKrell. (DeKrell Dep. at 11.) Instead, he spoke with Bruce Campbell, who at the time was the Director of Communications Store Channel for Defendant. (Doc. No. 18, Campbell Dep. at 4.) Campbell and the associate directors reviewed the retail sales representatives on a weekly basis to determine who had the ability to manage. (Campbell Dep. at 17; Scherzer Dep. 18-19.) One of the associate directors was Michael Ross, who reported to Campbell. (Snik Dep. at 61; Campbell Dep. at 20.) Plaintiff's immediate supervisor, DeKrell, reported to Ross. (Campbell Dep. at 20.) Thus, Campbell received input about Plaintiff from Ross. (Id. at 21.)

  Campbell thought that Plaintiff was an "average performer." (Id. at 18.) He also thought Plaintiff had "never presented himself as a potential leader or assistant manager or manager" while working for Defendant. (Id. at 17.) Campbell was "curious [about Plaintiffs] abilities to lead in the direct sales channel." (Id. at 13.) He told Suskind that Plaintiff was not even next in line to be an assistant store manager "because he had not taken a lead role." (Suskind Cert. ¶ 6.) Campbell was not sure if he had ever met Plaintiff, but Campbell may have met him when Campbell visited Plaintiff's store. (Campbell Dep. at 9.) At the time, Campbell did not know how old Plaintiff was. (Id. at 24.)

  After careful consideration of both the phone interview and the management feedback, Suskind decided not to offer Plaintiff an in-person interview for the Sales Manager position. (Suskind Cert. ¶ 7.) Suskind also did not offer Fahs, the other internal candidate, an in-person interview. (Id. ¶ 8.) Fahs, who had been a manager in Defendant's retail sales channel since 1997, lacked direct sales experience. (Id.)

  C. Kozloski Hired as Sales Manager

  Suskind ultimately chose Kozloski for the position. (Id. ¶ 9.) Kozloski had a four-year degree in marketing and finance*fn3 and had been employed with Cingular Wireless, one of Defendant's competitors, for over eight years. (Suskind Cert. ¶ 9; Kozloski Dep. at 6-8.) From 1992 to 1996, Kozloski held various titles with Cingular's predecessors, including communications consultant, account executive, and senior account executive. (Kozloski Dep. at 14-15.) In 1996, Kozloski was promoted to create a sales team from scratch. (Id. at 10.) From 1996 to 2001, he managed a direct sales team of between two and thirteen sales representatives that sold wireless telephone services to businesses. (Suskind Cert. ¶ 9; Kozloski Dep. at 6-9, 12-13.) Kozloski was regarded as the top sales manager at Cingular, and regularly exceeded his targeted yearly sales quota. (Suskind Cert. ¶ 9; Kozloski Dep. at 8.) In addition, Cingular chose Kozloski to acquire other sales teams when other managers left the company. (Kozloski Dep. at 12.) At the time that he was being considered for the Sales Manager position, Kozloski had a fairly good knowledge of Defendant's products and services, as well as wireless products and accessories in general. (Id. at 29-30.)

  Kozloski was interviewed for the Sales Manager position. (Id. at 28.) During the interview, he discussed his territory management skills, such as the times he was asked by Cingular to carve out sales territories for his sales representatives and manage those territories. (Id. at 28-29.) He also discussed his proficiency in certain software. Kozloski stated that while he was working for Cingular, he was chosen as to pilot a specific outbound sales program. (Id. at 41-42.) Kozloski was also interviewed by Christine Gallagher, who was in Defendant's human resources department. (Scherzer Dep. at 25.) Defendant had a policy whereby only external ...


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