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Whitesell v. Dobson Communications

February 20, 2008


The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing



Defendant, Dobson Communications trading as Cellular One ("Cellular One"), has filed a motion for summary judgment. After careful consideration of the motion, the memoranda of law in support and in opposition and the supporting materials supplied by the parties, this Court will grant the motion with respect to the claims brought by Mary Whitesell and deny it with respect to the claims brought by Cynthia Kildoo and Leann Richter.


Plaintiffs, Mary Whitesell, Cynthia Kildoo and Leann Richter, were all employed by Cellular One at its Butler, Pennsylvania store, Whitesell as an Assistant Sales Manager and Kildoo and Richter as Retail Sales Associates under Whitesell's supervision. All three bring suit, alleging that their respective discharges from employment constituted age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (ADEA). In addition, Whitesell alleges a claim of hostile work environment and harassment.


Dobson Communications provides cellular telephone service and calling plans to its customers in Pennsylvania under the licensed trade name of Cellular One. It employs significant numbers of individuals in multiple retail stores to market and sell cellular telephones, accessories and calling plans.

Cellular One asserts that every sales employee in the retail centers is expected to meet a monthly quota of cellular account activations. The actual quota applied to each individual varied with the individual's position. Plaintiffs contend that this policy was not uniformly enforced and that employees under the age of 40 who violated the monthly sales quota policy were not terminated.

Whitesell was employed by Cellular One as an Assistant Retail Sales Manager from January 17, 2003 to November 10, 2004 at its Butler, Pennsylvania store. Kildoo and Richter were employed by Cellular One as Retail Sales Associates ("RSAs") and also worked in the Butler, Pennsylvania store under Whitesell's supervision. Plaintiffs worked in Cellular One's "North Region" which included a geographic footprint spanning Youngstown, Ohio to Clearfield, Pennsylvania. The North Region was further divided between two markets -- Youngstown and the Lower North Pennsylvania regions. The Butler store is located in the Lower North Pennsylvania region.

Cellular One states that it follows a progressive disciplinary process for its enforcement of sales quotas by utilizing objective standards and multiple levels of review and approval before any disciplinary action is taken to ensure that sales quotas are enforced in a fair and nondiscriminatory manner. Sales employees who fail to meet quota face receiving a Written Warning or dismissal, regardless of their age or other classification, depending on what stage the employee is at in the progressive disciplinary process. (Def.'s App. Ex. A.)*fn1 Plaintiffs contend that this alleged policy is not uniformly enforced.

Upon hiring, sales representatives are provided a three-month training "ramp-up" period in which they are not accountable for meeting sales quota. (Menster Dep. at 52-53.)*fn2 Cellular One's sales disciplinary process for its North Region consists of a five-stage progressive disciplinary process as follows:

Stage 1: Verbal/informal Plan for Improvement

Stage 2: First Written Warning with Plan for Improvement

Stage 3: Second Written Warning with Plan for Improvement

Stage 4: Final Written Warning

Stage 5: Termination (Def.'s App. Ex. A.)

Cellular One's progressive disciplinary process included a six-month safe harbor provision in which the sales quota disciplinary process would restart if the RSA went six or more months without missing quota. (Menster Dep. at 54-55.) In extenuating circumstances, such as a prolonged absence due to illness or a death in the family, sales managers could seek the approval of the Regional Vice President to permit case-by-case variances from the sales disciplinary policy. (Id.) Plaintiffs contend that the relevant manager in this case, Bryan Clark, used his discretion to enforce the sales quota requirement in a discriminatory fashion.

During the relevant time period, it was the procedure of Cellular One's regional human resources department to send a monthly e-mail attaching a Detailed Summary Report for Activations ("Monthly Activations Report") to the Regional Vice President, General Manager, Area Manager and Sales Directors (both direct and retail). (Menster Dep. at 35-36, 56; see Def.'s App. Ex. C.)

Cellular One states that management was requested to review the Monthly Activations Report and identify sales representatives who had failed to meet quota. In addition, managers at all levels were to report to the human resources department if they were seeking approval to waive disciplinary action for any sales representatives who failed to meet quota. (Menster Dep. at 42-43, 50.) Plaintiffs respond that the Monthly Activations Reports Cellular One has submitted (Def.'s App. Ex. C) show repeated instances where no disciplinary action followed a failure to achieve sales quota.

Cellular One states that the regional human resources department also reviewed the Monthly Activations Reports and determined which stage of the disciplinary process was applicable to each employee who failed to meet quota and invited comment from managers if they disagreed with the suggested disciplinary response. (Menster Dep. at 60-62.) Plaintiffs contend that the regional human resources department only reviewed the decision of the sales manager to impose discipline, not when the sales manager chose not to impose discipline.

(Menster Dep. at 33-38.)*fn3

All requests for terminations were reviewed and approved by the Regional Vice President, General Manager, Area Manager and Sales Directors and the company's corporate human resources department. (Menster Dep. at 60-62.)

Cellular One states that it also follows progressive disciplinary process with respect to the enforcement of its policies, procedures and work rules. However, it reserves the right to take an appropriate form of discipline depending on the infraction, including termination for gross misconduct. See Def.'s App. Ex. D. Plaintiffs respond that there were instances where the progressive disciplinary process was not enforced against others when it was enforced against them for the same behavior.


Mary Whitesell started her employment with Cellular One on May 8, 2000 as a retail sales representative in the Butler, Pennsylvania store. She was promoted to Assistant Retail Sales Manager for the Butler store on or about January 17, 2003. She understood that as an Assistant Retail Store Manager she was responsible for adhering to company policies and procedures, supervising the RSAs working in her store and meeting a sales quota which was tied to the store's overall performance. (Whitesell Dep. at 57, 61-64.)*fn4 Whitesell received training on Cellular One's policies and procedures and had received copies of its Employee Policy Manual. (Id.) She also received a copy of Cellular One's Supervisory Manual.

There were multiple layers of upper-management for the retail sales channel directing store operations. At the time that Whitesell was promoted to Assistant Retail Sales Manager, her direct supervisor was Kenneth Henke, who served as a Retail Sales Manager over several store locations in Pennsylvania through August, 2004. Kenneth Henke was replaced by William Citeroni shortly thereafter.*fn5 Kenneth Henke reported to Andrew Bryan Clark ("Bryan Clark"), the Director of Retail Sales for the Lower North Pennsylvania region from May 10, 2002 through February 22, 2005.*fn6 In turn, Bryan Clark reported to Ron Smrek, the Area Manager for the Lower North Region. The Area Manager reported to Cellular One's Regional Vice President, Slayton Stewart, and General Manager, Lisa Jenrette.

Between May 2003 and October 2004, Whitesell received four Written Warnings for various violations of company policies and procedures. On May 19, 2003, she received the first Written Warning from her direct supervisor, Kenneth Henke, after she closed the Butler store during posted store hours without receiving management approval. (Def.'s App. Ex. F.) In response, Whitesell admitted that she closed the store, but explained that the store was closed for only three minutes due to an office equipment breakdown and supply shortage, that the store was unmanned and that no customers came in. She argues that the warning was a pretext covering for age animus.

On January 23, 2004, Whitesell received a second Written Warning from her direct supervisor, Kenneth Henke, for a continued pattern of violating Cellular One's dress code. Henke noted that:

In the past we have had discussions with you regarding the nose piercing you have and the fact that nose piercing is a violation of the dress code we have for our retail stores. On 1/21/04, we had a discussion with you on this again and pointed out the importance of having your nose piercing covered or removed while you were working in our retail store. However, despite our previous discussions, on 1/22/04, your nose piercing was not covered or removed while you were in the retail store. (Def.'s App. Ex. G.) Whitesell admits that she was aware at the time she received the Written Warning that her nose piercing violated the company's dress code. (Whitesell Dep. at 64, 87-89.) She testified that the General Manager for the North Region, Lisa Jenrette, brought the nose piercing to Kenneth Henke's attention and requested that he address the dress code violation. (Whitesell Dep. at 87-89.)

Whitesell argues that she had already agreed to remove the nose ring and would do so on her vacation. (Whitesell Dep. at 93.)*fn7 However, the Written Warning states that she was supposed to keep it covered until she had it removed, but that she failed to do so.

Whitesell also contends that the dress code policy was not enforced against employees under the age of 40. (Whitesell Dep. at 113.)*fn8 Specifically, she states that an RSA at the Butler store, Andrew Verostik, was not reprimanded for a having his eyebrow pierced. Cellular One responds that Verostik reported to Whitesell and it was her responsibility to seek the assistance of upper management to redress the violation. She responds that management above her was aware of Verostik's eyebrow piercing and chose not to enforce the dress code against him. (Whitesell Dep. at 113-14.) She argues that the warning was a pretext to build a record against her.

On September 10, 2004, Whitesell received a third Written Warning for her failure to protect company assets and for allowing phones to be sold at a sale price prior to the commencement of a promotion. (Def.'s App. Ex. H.) She does not dispute that she pre-sold phones prior to the start of the promotion, which was a violation of company policy. She explains that she made the decision, which was within her discretion, to sell phones at the sales price 10 hours before the sale was to begin as part of her managerial responsibilities and for the purpose of not losing customers, who had driven a considerable distance to her store in response to a promotional flyer. (Whitesell Dep. at 94-95.)*fn9 She contends that the warning she received for this act was a pretext for building a record against her.

On October 15, 2004, Whitesell received a Final Written Warning for using, or permitting another employee to use, her point of sale login for the purposes of accepting payments for her spouse's business account. (Def.'s App. Ex. J.) Cellular One notes that, on or about February 1, 2002, she had received an interoffice memorandum regarding Cellular One's Fraud Policy. Among the infractions considered gross misconduct subject to disciplinary action up to and including termination, Cellular One prohibited conducting business transactions under another person's login; failure to safeguard one's login to protect company assets; and entering information on one's own account, a friend's account, or a family member's account without approval. (Def.'s App. Ex. K.)

At the request of the regional human resources department, Jane Suber performed an audit of the Butler store's point of sale system after Bryan Clark had expressed concerns about misuse of point of sale logins in the Butler store. (Def.'s App. Ex. J; Suber Dep. at 31-33.*fn10

Suber's investigation revealed that Whitesell had contacted Cellular One's customer service center to request a credit for her spouse's business account. The customer service representative advised Whitesell that she would need to get the approval of her manager to issue the credit. Further, upon review of Whitesell's spouse's account, Suber found that on several occasions there were payments taken under Whitesell's login, as well as an activation on the spouse's account. (Id.)

Cellular One states that, although Whitesell stated that she did not do the transactions, but had her employees enter them under her login, her behavior was in clear violation of company policy and procedures. (Def.'s App. Ex. K.) Whitesell does not dispute that she permitted her point of sale login to be used to accept payment on her husband's account. Rather, she responds that the use of company login by Cellular One employees to perform personal business was a common and accepted practice and she named numerous individuals who engaged in the practice but were not disciplined. (Pls.' Resp. Def.'s Interrog. No. 5; Whitesell Dep. at 102-03, 130-32, 140-41.)*fn11

William Citeroni, who was Whitesell's direct supervisor, states that, while he worked for Cellular One:

Mary Whitesell was written up for sharing her log in, yet Heather Craig had her log in posted on the computer terminal and I witnessed Bryan Clark simply remove it without any disciplinary action toward Heather. I investigated and reported Heather engaging in fraudulent activations to Bryan Clark. This behavior should have resulted in termination, yet no action was taken. Mary Whitesell called me and questioned why Bryan treated her and her employees ...

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