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Robinson v. Mondelez Int'l, Inc.

United States District Court, E.D. Pennsylvania

January 11, 2017

MONDELEZ INT'L, INC., Defendant.


          GENE E.K. PRATTER United States District Judge

         David Robinson claims that his former employer, Mondelez International, terminated his employment because of his age. Mondelez now seeks summary judgment in its favor, arguing that it had a legitimate, non-discriminatory reason to terminate Mr. Robinson's employment, given his less-than-stellar track record. Mr. Robinson counters that his job performance was good and that there were younger employees with worse performance issues whose employments were not terminated. After hearing oral argument, the Court will grant the motion.


         David Robinson claims that he was terminated from his job as a sales representative for Mondelez International, one of the world's largest snack companies, on September 26, 2014 because of his age. He was sixty-two (62) years old. As a sales representative, it was Mr. Robinson's responsibility to order products for stores within his territory, stock the shelves, rotate products and remove “out of code” (or expired) products, and build relationships with store managers. From June 2010 through April 2014, Mr. Robinson reported to Joe Shiller. In 2010, Mr. Robinson failed to meet his sales objectives and received a performance review that stated he “partially meets expectations.” In 2011, he received a “meets expectations” rating.

         In January 2012, Mr. Robinson was disciplined for “theft of company time” in connection with an audit of his GPS system, and he was placed on final warning. Another employee who was younger than Mr. Robinson was fired for the same offense at around the same time. Mr. Robinson contends that his misuse of the GPS system was due to not understanding the technology and not receiving appropriate training for using it, not to any intent to cheat the company. However, at his deposition, he also stated that the discipline relating to the GPS incident had nothing to do with his age.

         In 2012, Mr. Robinson again received a “partially meets expectations” rating, based in part on a failure to meet sales goals. On May 8, 2013, he received a documented verbal warning based on poor sales, out of stock items, unacceptable and light shelf conditions, and poor communication with store management. One of the stores in Mr. Robinson's territory at that time had threatened to ask for Mr. Robinson to be removed from that store, and such a removal in itself is a terminable offense. Mr. Robinson again admitted at his deposition that this discipline had nothing to do with his age. At other times in 2013, Mr. Robinson performed well. In early 2014, he received a Circle of Champions award for his 2013 sales, and he earned a trip to California for improving sales over 2012, as well as a merit pay increase.

         In March 2014, Mr. Robinson asked Gary Schmidt, a Human Resources representative, about early retirement. There is no evidence in the record that Mr. Schmidt spoke with any of Mr. Robinson's supervisors about this request. Mr. Robinson, however, states that Mr. Shiller was present when he asked Mr. Schmidt about early retirement.

         Starting in April 2014, Mr. Robinson was assigned to a different territory and supervised by District Manager Jacqueline Moroz. In late May and early June, Mr. Robinson had at least two incidents where his stores had excessive out of code products and empty, mislabeled displays. On June 18, 2014, Ms. Moroz sent Mr. Robinson an email warning him that he was well below his sales objective. Two days later, Ms. Moroz sent a note to Work Force Solutions, Mondelez's outside employer relations specialist who managed employment termination decisions with input from Mondelez's human resources department, in which she noted excessive out of code products in Mr. Robinson's stores. On June 23, 2014, Mr. Robinson received a final written warning about excessive out of code products and unacceptable shelf conditions. At least one store at which there were issues outlined in the final warning was a Walmart store to which Mr. Robinson had only recently been assigned, and which had had ongoing issues that stretched back before Mr. Robinson took over responsibility for that store. Mr. Robinson disagreed with the written warning and documented his disagreement.

         In July 2014, Mr. Robinson began reporting to District Manager Claudia McCullough. The Retail Merchandising Supervisor for the team was Colleen Thiel. Ms. Thiel had concerns about store conditions in Mr. Robinson's territory, which she attributed to Mr. Robinson's poor ordering and poor communication with store personnel. In Mr. Robinson's 2014 mid-year review, which was prepared by both Ms. Moroz and Ms. McCullough, he was rated as “off track” to meet his goals. His review stated that he was ranked 199 out of 211 sales representatives in the region, 41 out of 42 in the market, and 11 out of 11 on his team. His sales numbers for the first six months of 2014 were, at best, inconsistent, sometimes at or above expectations and other times below target.

         On July 3, 2014, Ms. McCullough sent Mr. Robinson an email expressing concern with out of stock products, not servicing stores early enough, and poor communication with store managers. On July 29, she sent another email complaining of poor shelf conditions. Throughout 2013 and 2014, Mondelez also received a number of complaints from store managers about Mr. Robinson's performance.

         On September 11, 2014, Ms. Thiel sent Mr. Robinson an email complaining about a number of the same issues complained of before, such as out of stock products, insufficient signage, and poor shelf integrity. Mr. Robinson disagreed with Ms. Thiel's characterization of the situation at at least two of the stores, and he attributed her mischaracterization to a lack of familiarity with the stores in question. On September 22, 2014, Mr. Robinson was suspended for poor performance, and on September 26, 2014, Mr. Robinson's employment was terminated for his poor performance. Mr. Robinson counters that his sales numbers in July and August were higher than his objectives, and that even after termination, he received a bonus for high September sales.

         Mr. Robinson testified at his deposition that Ms. McCullough asked him at some point whether he planned to retire soon, and that she constantly checked up on his stores while not doing the same for five other sales representatives she supervised who did not meet their sales objectives in July and August 2014. He also testified that Ms. Thiel did the same. He complained that Ms. Moroz checked Mr. Robinson's newly assigned stores for out of code product shortly after he was assigned to them.

         Mr. Robinson's position was later filled by someone under the age of 40. Mr. Robinson offers, in a document he created, three potential comparators who he says are under the age of 40: James Thomson, a senior service representative who had more than 1000 out of code products and did not receive discipline; Alyson Baehrle, a senior service representative who had out of code products in two stores and who had a store manager ask Mondelez to remove her from the manager's store; and Veronica Baez, a sales representative who reported to Ms. McCullough and who was barred from servicing a particular store by a store manager until Ms. McCullough intervened.

         Mr. Robinson then filed this suit, alleging violations of the Age Discrimination in Employment Act (ADEA) and the Delaware Discrimination in Employment Act.[1] After the completion of discovery, Mondelez filed a ...

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