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Burtman v. Lance

March 17, 2008

PAUL BURTMAN, JR., PLAINTIFF
v.
LANCE, INC., DEFENDANT



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

This matter arises out of an employment dispute. Plaintiff Paul Burtman, Jr., sues his former employer, Defendant Lance, Inc. ("Lance"), for violations of the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Pennsylvania law of wrongful discharge. Defendants moved for summary judgment on all counts. For the reasons that follow, the motion will be granted in part and denied in part.

I. Background

A. Facts

Because of the nature of the suit, a cast of characters is offered for context. Lance is in the business of manufacturing and selling snack food. Plaintiff was a Route Sales Representative for Lance from 1988 to 2005. He was supervised by Jack Wilson, Sales Manager for the Philadelphia Zone, and Scott Wagner, a District Manager within that zone. Tony Baker was the Operations Manager for the zone. Wilson's superior was Dave Gabbard, the Regional Sales Manager, who in turn was supervised by Frank Lewis, Senior Vice President of Sales Operations. For the duration of the pertinent time period, Lance employed two "sales jumpers" or sales trainees in the Philadelphia Zone, Jim Hullet and Paul Plausky. Jumpers are not assigned a permanent route, but fill in where needed when a sales representative is away from his normal route. They may also ride along with a sales representative if the representative needs assistance.

1. Plaintiff's Employment

In April 1988, Plaintiff was hired to be a sales representative for Defendant. Among the qualifications for a sales representative is the ability to "[g]et in and out of a truck, lift up to 50 pounds on a fairly regular basis, [and] be able to operate a motor vehicle safely." (Theriault Dep. 67:19-68:3, June 5, 2007.) Plaintiff's weekly wage was $150 plus ten percent sales commission.

From 1988 to 1993, Plaintiff reported five workplace injuries to Defendant. All injuries involved back pain. On some occasions, he took a few days off from work to recover. From late 2004 through April 2005, Plaintiff incurred a number of back injuries. When he was able to work, he did with doctors' instructions that he be set to light duty, under lifting restrictions of lifting, pushing, or pulling no more than ten or fifteen pounds. Defendant was aware of these restrictions and, at all times during which Plaintiff was on light duty, assigned a sales trainee to accompany Plaintiff on his route and do any lifting for him.*fn1 It is not clear from the record which, if any, employees of Lance were aware of the reasons that Plaintiff was assigned light duty during that time.

Plaintiff made a claim for worker's compensation based on his hernia injury incurred April 26, 2005. (Pl.'s Ex. O.) Plaintiff was placed on light duty from the date of the injury until his surgery on May 18, 2005. On that date, he was placed on worker's compensation leave through July 19, 2005.*fn2 Plaintiff's claim and payments were handled to his satisfaction. Toward the end of his worker's compensation time off, he faxed to Tony Baker prescriptions from his doctor regarding his readiness to return to work and the restrictions under which he could perform. He returned to work in mid-July with restrictions on the amount of weight he could lift.

Jack Wilson was hired as the Lance Philadelphia Zone Manager in July 2005. He was aware that Plaintiff was returning from a leave of absence and was on light duty in mid-July. He sent assistants to help Plaintiff work his route. Neither Wilson, nor Baker, nor Wagner, nor anyone else at Lance said anything to Plaintiff about having taken worker's compensation. Wagner did, on occasion, call Plaintiff to ask how his back was feeling. Wagner asked several times in the past whether Plaintiff was considering going on disability. Wilson testified that he did not know the details of Plaintiff's health condition.

In August 2005, Wilson assigned Ron Anthony, a district sales manager, to serve as Plaintiff's lifting helper. Anthony testified that Wilson told him that "I believe that [Plaintiff is] trouble, and I want this guy watched, I want you to report back to me everything that goes on in that route. Dot every I, cross every T." (Anthony Dep. 37:11-15, June 29, 2007.) In particular, Wilson wanted to know "what kind of condition the route was in, what the customer feedback was." (Id. 38:3-7.) Wilson did not tell Anthony why he wanted this surveillance. Anthony said he would keep Wilson informed about their work together, including Plaintiff's attitude and the condition of his route from the trainee who had covered it while Plaintiff was on vacation during a prior week. Wilson does not recall having had such conversations with Anthony.

Anthony reported back that many of the accounts were in terrible shape; not because of Plaintiff's service but because of the service provided in his absence by Jim Hullet. According to Anthony, "[e]veryone . . . from the biggest account to the smallest one was glad to see [Plaintiff] back because they knew that they would, once again, receive quality service." (Id. 42:5-11.) Anthony reported to Wilson that Plaintiff was an excellent salesman and had superior interaction with the customers.

On September 1, 2005, Tony Baker sent an email, with a carbon copy to Wilson, asking about Plaintiff's status and how long he would be on light duty. Plaintiff returned to full duty with no restrictions in mid-September 2005. Because there was no longer a need for him to have a lifting assistant, Plaintiff worked his sales route by himself from mid-September through mid-December 2005.

On December 6, 2005, Wilson received an email containing a chart entitled "Zone Safety Review." (Pl.'s Ex. R.) It contained an entry for Plaintiff's worker's compensation claim, indicating that he "[p]ulled back on handtruck with vendor & felt pain in abdominal area. Hernia." (Id.) The chart noted that the cost of the injury, to date, was $36,900. Plaintiff's injury is the most expensive claim on the chart. The next most expensive claims totaled $29,250 and $19,050, respectively. At that time, Lance had a bonus structure in place that rewarded Zone managers for increasing the safety performance of their sales representatives. Wilson's bonus was based on his performance in a number of categories, one of which was meeting his budget or coming in under-budget in a particular quarter. The cost of all worker's compensation claims in his zone was added to the expense side of his budget. If the amount paid out for worker's compensation exceeded projected targets, Wilson's bonus was decreased accordingly.

On or around December 7, 2005, Wilson attended a dinner with Gabbard and Lewis, during which Lewis told Wilson that the Philadelphia Zone was the worst-performing zone in the country.

At or about this same time, Plaintiff won an award for increasing his sales.

2. Plaintiff's Termination

It is undisputed that, while vacationing in Florida on Friday, December 9, 2005, Plaintiff placed a phone call to Wilson. The reason for the phone call was Plaintiff's concern about who would be servicing the accounts on his route in his absence. Wilson told Plaintiff that sales trainee Jim Hullet was covering his accounts. Here, Wilson's and Plaintiff's recollection of the phone conversation diverge.

Wilson maintains that Plaintiff was angry that Hullet was the appointed representative for his accounts. In the past, Hullet had not provided the same standard of service that Plaintiff was accustomed to providing, and his customers were accustomed to receiving. Upon returning to his route, Plaintiff had lost sales from some customers as a result. Wilson testified that Plaintiff became angry upon hearing that Hullet was, again, visiting his customers. He wanted Paul Plausky to attend to his route instead. Wilson questioned whether Plausky was able to service Plaintiff's route. Plaintiff responded loudly, "fuck you, fuck Lance, fuck this place," then hung up.

Plaintiff testified that he was not concerned about Hullet running his route and did not curse during the conversation. He speaks loudly sometimes because he is hard of hearing, but he was not yelling in anger. The call ended abruptly because his cell phone dropped the call.

Immediately after the first call ended, Wilson called Plaintiff back. His call went to voice mail, and he left a message saying that because Plaintiff had cursed at him and hung up on him, Plaintiff was to report to Wilson's office upon returning from vacation on Monday morning. Plaintiff returned Wilson's call using a different phone. According to Plaintiff, he denied cursing and hanging up on Wilson, explaining that his cell phone had dropped the call. Moreover, Plaintiff claims that Wilson told him that he would not be fired because Plaintiff was the only salesman increasing sales. Wilson testified that Plaintiff was very apologetic for having cursed. He denied having told Plaintiff that he would not be fired or that he was the only salesperson increasing sales. Wilson instructed Plaintiff not to go out on his sales route upon his return from vacation, but to report to Wilson's office in Philadelphia. At that time, Plaintiff understood that he was suspended from work.

Later that day, Wilson contacted Deb Smith,*fn3 a human resources manager for Lance, to discuss his options. Smith instructed Wilson that he should meet with Plaintiff in the presence of another person, to have a third party witness. If Plaintiff admitted to making the insubordinate statement, Wilson could terminate Plaintiff if he so chose. Wilson's understanding was that if Plaintiff admitted to the insubordination, Smith said that he should be terminated.*fn4

On the morning of December 13, Plaintiff arrived at Wilson's office for the meeting. Wilson brought Baker into his office as a witness. Plaintiff's and Wilson's recollection of the meeting diverge. Wilson testified that, when asked whether he said "fuck you, fuck Lance, fuck this place," Plaintiff was apologetic and admitted the statements. Baker confirmed that Plaintiff apologized for cursing, and tried to explain that Wilson had taken the statement out of context. Plaintiff testified that he did not apologize.

Plaintiff testified that he told Wilson that he was only concerned about his territory when he had called the Friday before. Wilson said "you older guys cause all the trouble" or a statement to similar effect. Wilson denies having made such a statement and Baker does not recall he did. Wilson also said that Plaintiff had "two charges" against him, but did not specify what the "two charges" were when Plaintiff asked. Wilson disputes that any conversation about "two charges" occurred.

It is undisputed that Wilson terminated Plaintiff at the meeting on December 13. The reason given on the internal Lance documentation was "insubordination." There was no record of prior insubordination or use of profanity by Plaintiff in his employment history. Although Wilson did not take issue with Plaintiff's sales performance, Wilson testified to his belief that terminating Plaintiff was the appropriate course because he did not want another outburst towards a fellow employee or a customer. He felt that the outburst signaled that Plaintiff was unstable. Upon his termination, Plaintiff was fifty-five years old. Wilson was forty-two years old.

Immediately after Plaintiff's termination, Wilson appointed Paul Plausky to cover his route on a temporary basis. Plausky was forty years old and did not require lifting assistance.

3. Plaintiff's Administrative Charge

In or around the mid-March 2006, Plaintiff filed a Charge Information Questionnaire on a form provided by the Equal Employment Opportunities Commission ("EEOC"). He alleged "discharge" as the type of harm he suffered, on the basis of "age" and "disability." (Pl.'s Ex. U.) In support thereof, he stated "I was at [the] time 55 years old, and I have a chronic back problem." (Id.) In the Discipline Questionnaire that appears to have been attached, question twenty-one asks for the reason that Plaintiff believed that he was discriminated against. He wrote, "I was 55 years old and have been off on work[er's] compensation. April - June 2005 for [an] on job injury. Also [December 2004] off for chronic back pain. And light duty several times in 2005." (Id.)

On April 17, 2006, Plaintiff filed a Charge of Discrimination at the Maryland Commission on Human Relations. (Id.) He checked the box next to "age" in response to the query of the type of discrimination he claimed. (Id.) The "disability" box was not checked. (Id.) Plaintiff wrote "see attached" in the space provided for additional information about the discrimination. (Id.) In pertinent part, he wrote When I was terminated [I] was never told why just that I had 2 charges against me but was never told what they were. I was also told that you older guys seem to give us all the problems.

I believe I was discharged because of my age. I was 55 years old at the time. Lance has replaced me with a younger employee. Lance always has open ...


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