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Michael Emmett v. Kwik Lok Corporation

September 11, 2012


The opinion of the court was delivered by: Eduardo C. Robreno, J.


Michael Emmett ("Plaintiff") brings this age discrimination action against his former employer, Kwik Lok Corporation ("Defendant"). Defendant moved for summary judgment. For the reasons that follow, the Court will grant Defendant's Motion for Summary Judgment.


Defendant manufactures plastic closures for bakery goods and other grocery products. Defendant divides its sales territory in the United States into two regions: the eastern division and western division. Robertson Decl. ¶ 2. Within each division, regional sales managers report to either the eastern or western divisional sales managers. Id. The eastern and western divisional sales managers report to the vice president of sales. Id. ¶ 3. And the vice president of sales reports to Kwik Lok President Jerre Paxton. Id. ¶ 4.

On May 24, 1993, Defendant hired Plaintiff as a regional sales manager for the eastern division. Emmett Dep. 11:9-22, Dec. 16, 2011. Plaintiff was responsible for Pennsylvania, West Virginia, Virginia, Maryland, Delaware, the District of Columbia, and parts of New Jersey and Ohio. Id. at 21:13-17. From the time Plaintiff began his employment with Defendant until 2008, Kevin Ryan directly supervised Plaintiff as the eastern divisional sales manager. Id. at 11:3-6. On April 1, 2008, Richard Zaremba became eastern divisional sales manager. Id. at 12:2-4. From January 1, 2005, to the present, Hal Miller served as the vice president of sales. Robertson Decl. ¶ 3. When Zaremba became the eastern divisional sales manager, Miller identified some low-performing regional sales managers, including Plaintiff, who needed assistance improving their performance.*fn2 Miller Dep. 101:2-18, Dec. 21, 2011.

Plaintiff largely bases his claims of unlawful age discrimination on the following three events. First, on April 30, 2008, Zaremba commented during a one-on-one meeting with Plaintiff: "Mike, at fifty-two, I wouldn't want you to get bored in your job. It's hard to find a new job and there's a lot of young guys looking for work." Emmett Dep. 60:20-23. Zaremba's comment shocked Plaintiff because no one had ever made such a comment to him before. Id. at 60:25-61:6. After a period of silence, Zaremba went on to consider other business issues during their meeting. Id. at 61:7-15.

Second, on June 27, 2008, after reviewing complaint procedures with a human resources representative, Plaintiff prepared a written complaint to Miller about Zaremba ("June 27 Complaint Letter") that Plaintiff read to Miller over the telephone. Id. at 86:7-17, 93:19-94, 121:25-122:15; Robertson Dep. 9:15-10:23, Mar. 9, 2012. The June 27 Complaint Letter provided, in part: Hal, I'am [sic] contacting you in reference to, what I consider, inappropriate comments's [sic] by Rich Zaremba. These comments include references to employee age, employment security, outright threats and implied threats. A listing of these comments is being supplied with this memo. These comments have served to create an atmosphere of distrust with Rich.

I'am [sic] coming to you for a resolution to this problem after much soul searching. I have also reviewed my approach to this very important issue with Marsha Robertson to be sure I'am [sic] following company policy. Marsha has assured me that. I'am [sic] proceeding correctly as outlined in the Kwik Lok Corporation Employee Handbook Section 718, Problem Resolution.

Thank you for your consideration of this matter.

Rich Zaremba comments to Mike Emmett:

1.) Divisional Sales Meeting 4/30/08 1 on 1 Meeting w/Rich Zaremba "Mike, I wouldn't want you to get bored in your job!

At 52 its [sic] hard to find a new job there is a lot of young guys looking for work." . . . .

Additionally, Hal, Rich makes it sound like you are supporting all this and he's just the messenger. The impression he leaves is that you have contempt for each of us. I've known you for fifteen years now and I just do not believe that that is the case!


Mike Emmett

Regional Sales Manager

June 27 Complaint Letter 1-2, Mot. Summ. J. Ex. G. Plaintiff testified that after he read the Complaint Letter to Miller over the telephone, Miller asked Plaintiff, "[J]ust what are you going to do about it?" Emmett Dep. 83:2-4. Plaintiff returned, "[W]ell, Hal, there's really nothing I can do about it. That's why I'm coming to you." Id. at 83:5-6. Miller told Plaintiff to "be a man and handle it with [Zaremba] directly" and that it sounded like Plaintiff was trying "to build a case." Id. at 83:7-9. Plaintiff also testified that Miller admitted he was "trying to send a message" and did not deny Zaremba's April 2008 comment. Id. at 83:14-25. After the telephone conversation with Plaintiff, Miller called Zaremba to inform him that Plaintiff felt intimidated and that Zaremba should address the problem with Plaintiff. Miller Dep. 114:15-115:14.

In July 2008, during an annual sales conference, Plaintiff believed Miller initially avoided Plaintiff. Emmett Dep. 98:5-7. Later that week, however, Plaintiff and Miller met over Plaintiff's complaint. Id. at 98:8-18. Plaintiff told Miller that, "if nothing like this happens again the issue is settled." Id. at 101:11-13. Plaintiff testified that Miller said he felt "terrible about this whole thing," that Miller informed Paxton of Plaintiff's complaint, and that Miller accepted responsibility for the incidents in the complaint. Id. at 101:14-20.

Third, in June 2009, while traveling with Zaremba on a business trip, Zaremba asked Plaintiff, "[H]ow's your health and is your mortgage paid[?]" Plaintiff responded "good and no," there was a long silence, and then the two later talked about business. Id. at 73:24-74:8. Plaintiff interpreted Zaremba's questions as a threat because they "would be asked of a person of older age because . . . as we get older sometimes your health issues start to arise, and you have to be a little bit older for your mortgage to be paid." Id. at 71:1-72:5. On prior occasions, Plaintiff had generally discussed mortgages with his co-workers and Plaintiff discussed with his former supervisor Kevin Ryan a panic attack he experienced after a near collision on the highway, which resulted in Plaintiff's hospitalization for one day. Id. at 76:13-78:14.

Defendant offers evidence of instances of unprofessional behavior that ultimately led to Plaintiff's termination. In June or July of 2009, one of Plaintiff's key customers, Procacci Brothers, experienced problems with a new closure and label system Plaintiff sold, which caused the customer to lose a large order. Id. at 140:9-143:25. The customer requested to speak with the president of the company, but because he was not available that day, Plaintiff attempted to reach Miller. Id. at 181:2-9. Before putting the customer on the phone with Miller, Plaintiff gave Miller a short explanation of the background of the problem the customer experienced. Id. at 182:4-183:11. Once on the phone with Miller, the customer told him she lost a big order, described the problems she had with Defendant's product, and asked what Miller would do about the problem. Id. at 183:14-17. ...

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