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Berko v. Sears

September 26, 2007

MICHAEL BERKO, PLAINTIFF,
v.
SEARS, ROEBUCK AND CO., DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court is defendant's motion for summary judgment (Doc. 16). Having been fully briefed and argued, the matter is ripe for disposition. Background

Plaintiff began working for defendant as a Product Repair Service Technician on July 27, 1981. (Defendant's Statement of Material Facts (Doc. 18) (hereinafter "Defendant's Statement") at ¶ 2).*fn1 His work consisted primarily of servicing refrigerators and air conditioners. (Id.). Each morning when plaintiff arrived at work he would receive a daily service route. (Id.). He visited customers to make repairs according to that route, either repairing malfunctioning products or ordering replacement parts. (Id.). The company would ship replacement parts directly to the customer, who would then make an appointment with a technician to install the new part. (Id.).

In August 2004, plaintiff purchased a lawn tractor from a Sears store. (Id. at ¶ 3). He purchased the tractor as a "'used return.'" (Id.). The tractor had been used by the previous owner for approximately three and one-half hours and returned to the store for repairs. (Id.). Evidence in the case indicates that even brand-new equipment sometimes required service. (Plaintiff's Counterstatement of Material Facts (Doc. 24) (hereinafter "plaintiff's counterstatement") at ¶ 3; Affidavit of Ronald Pasternak (Ex. C to plaintiff's appendix of exhibits in opposition to plaintiff's motion for summary judgment (Doc. 23) (hereinafter "plaintiff's appendix") at ¶ 8; Deposition of Michael Berko (plaintiff's appendix ex. A) at 194). Less than a month after he purchased the tractor, plaintiff placed a service call to the company, complaining that the tractor was noisy, wobbled and vibrated. (defendant's statement at ¶ 4). Ronald Pasternak, a Sears Lawn and Garden Technician, arrived at plaintiff's property a week later to repair the tractor. (Id. at ¶ 5). Pasternak concluded that the tractor's deck needed to be replaced, and called a supervisor to order the new part. (Id.). Pasternak concluded that the welds on the deck were split and could not be repaired. (Id. at ¶ 6). Plaintiff's tractor was under warranty. (Id.). He therefore received the new deck at no cost. (Id.). At the same time, Pasternak sold plaintiff a "protection agreement" for the tractor, which cost $269.99. (Id. at ¶ 7). Pasternak received a commission for this sale. (Id.).

Pasternak failed to schedule a service appointment to install the new deck. (Id. at ¶ 8). Berko testified that he planned to install the new deck himself, seeking help only if the project became too difficult. (Id.). Five days after the service call, plaintiff injured his shoulder at work. (Berko Dep. at 51). He did not attempt to put the new deck on the mower when it arrived one month later. (Id. at 123). Plaintiff's shoulder injury and the coming winter made doing so seem impossible and unnecessary. (Id. at ). Instead, plaintiff had a neighbor put the new deck behind his garage. (Id. at ).

The service performed by Pasternak to plaintiff's tractor eventually led to two investigations by Sears. The parties disagree about the events that prompted the first of these investigations. Defendant claims that Sears officials began investigating the service to plaintiff's tractor after hearing from other service technicians that plaintiff and Pasternak had made a deal to trade a new tractor deck for the commission on the service agreement plaintiff purchased. Plaintiff denies that he and Pasternak ever spoke before Pasternak arrived to perform service on his tractor. Lacking sufficient information after this initial investigation, defendant decided not to question plaintiff about service to his tractor. (Defendant's statement at ¶ 11).

After testimony in another investigation of improper handling of funds from service calls implicated plaintiff and Pasternak, however, the company began again to investigate plaintiff for dishonesty in the matter of the lawnmower deck. (Id. at ¶¶ 14-16). Raymond Sosa, the company's Territorial Loss Prevention Manager, interviewed Pasternak about allegations of wrongdoing in handling the company's funds and his service to plaintiff's tractor. (Id. at ¶ 18). After this conversation, Sosa telephoned plaintiff, speaking to him for the first time. (Id. at ¶ 20). Sosa asked plaintiff about Pasternak's service to his tractor, and plaintiff admitted that he had received a new deck but still had the old one. (Id. at ¶ 21). Sosa then instructed Terry Vincent, the local Technical Service Manager, to go to plaintiff's home to retrieve the old deck. (Id. at ¶ 22). Vincent discovered that plaintiff had never installed the new deck, which was leaning against the wall of plaintiff's garage. (Id. at ¶ 23). Plaintiff removed the old deck from his tractor, and Vincent returned to Sears with it. (Id.). When Vincent returned to the store, he and a Sears Service Technician examined the deck, finding nothing wrong with it. (Id. at ¶ 24). Another inspection at the District Service Office in Rochester, New York also revealed no damage to the deck. (Id. at ¶ 25).

After this investigation, Sosa telephoned plaintiff to question him about the service to his tractor. (Id. at ¶ 26). Vincent was also on the line, serving as a witness. (Id.). After this call, the company suspended plaintiff with pay in order to complete its investigation and complete termination procedures. (Id. at ¶ 27). The company also suspended Pasternak. (Id.). Sosa forwarded this information to management personnel, and the company's conclusion that the deck was neither damaged or broken and that plaintiff had made inconsistent statements during the investigation led District Manager Kenneth R. Haskell to seek to terminate the plaintiff's employment. (Id. at ¶ 29). The Regional and National Human Resource Managers reviewed Haskell's determination to terminate plaintiff. (Id. at ¶ 30). Kathy Kleban, the company's National Director of Human Resources, concurred in Sears's decision to fire the plaintiff. (Id. at ¶ 30). The company fired the plaintiff on June 20, 2005. (Id. at ¶ 31). Plaintiff was 49 years old when he lost his job. (Id. at ¶ 32).

The company did not replace plaintiff after his firing. (Id. at ¶ 33). Instead, the company "redistributed" his duties among three other technicians. (Id.). One of those technicians was fifty-one years old, one thirty-four and the third thirty-eight. (Id.). At the time that plaintiff lost his job, Sears employed twenty-five technicians who reported to Vincent. (Id. at ¶ 34). Of those twenty-five, fourteen were age forty or older, and seven were older than the plaintiff. (Id.) Of the 172 service technicians employed in the district and working under Haskell, 113 were age forty or older. (Id.). The company's service technicians in the district had an average age of 43.3, and 52 of those technicians were older than the plaintiff. (Id.).

During his deposition, plaintiff cited statements from his technical service manager, Terry Vincent, as evidence of age discrimination. (Id. at ¶ 36). Vincent had called him an "'old timer'" and a "'seasoned veteran'" "'a few times'" during service meetings. (Id.). On other occasions, Vincent had warned him that aging meant that he would "'have to be more careful not to get injured'" while working to avoid workers' compensation claims. (Id.). Vincent had also informed plaintiff in April 2005 that the company had four excess service technicians in the area. (Id.).

Plaintiff had earlier informed Vincent that he would be able to return to work the next month after suffering an injury to his shoulder. (Id.). Plaintiff also testified in his deposition that he had not identified age discrimination as a factor in his employment at the time Vincent made these comments. (Id. at ¶ 37). Plaintiff only found age discrimination in these comments after the company began investigating his receipt of the tractor deck in June 2005. (Id. ¶ at 37). That investigation came well after Vincent made his comments about age. (Id.). Plaintiff also testified that he did not find the comments about his age offensive at the time they were made. (Id. at ¶¶ 39-40). Plaintiff apparently did not report any of these statements to Sears authorities. (Id. at ¶ ¶ 42-43). He also did not allege that Vincent or Sosa made these statements during their investigation of his alleged misconduct in relation to the mower deck. (Id. at ¶ 44).

On January 18, 2006 plaintiff filed his complaint. (See Complaint (hereinafter "Complt." (Doc. 1)). The complaint alleged that Sears violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. by terminating him because of his age. The complaint sought front pay, back pay, costs, attorney's fees and compensatory and liquidated damages. After a discovery period, the defendant filed a motion for summary judgment. The parties briefed the matter and this court held argument on the issue, bringing the case to its present posture. Jurisdiction

As this case is brought pursuant the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq.,we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising ...


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