Delaware County Court of Appeals Reverses Employer’s Summary Judgment on Age Discrimination Claim of Fired Salesman With History of Declining Sales.

Last month, a divided Delaware County Court of Appeals reversed summary judgment on an age discrimination claim which had been entered in favor of an employer and against a salesman who had been terminated for poor performance. Peters v. Rock-Tenn Co., 2008-Ohio-6444. According to the court, the plaintiff alleged that he had been set up to fail by his employer when it doubled his sales quota and required him to sell new products. The employer showed that his sales had declined in each of the prior four years. Problematic for the employer, however, was evidence that the sales goal of the plaintiff’s significantly younger replacement was no greater than the plaintiff’s actual sales.

According to the court’s opinion, the plaintiff alleged that he had been terminated from his sales job in January 2007 after 25 years of employment based on his age. In particular, he alleged “that he had been assigned additional duties without adequate support and training, as a pretext for terminating his employment.” In the year before his termination, his new supervisor both doubled his sales goals and required him to begin selling new products in territories already covered by existing sales agents. However, the sales goal of his significantly younger replacement was less than the plaintiff’s goal; the replacement was apparently only required to match what the plaintiff had sold in his last year of employment.

The employer contended that the plaintiff had been discharged for unsatisfactory performance. According to the employer, the plaintiff’s sales had actually decreased in each of the prior four years and he had only successfully solicited one new client in the last three year (which brought in less than $1,000 in sales commission). His supervisor testified that he was among the poorest performing salespeople. In essence, he was “coasting” on his existing client base and was no longer effective at generating new sales – or even maintaining his existing sales level.

However, the plaintiff produced evidence that he had received a large bonus for 2006, and that he had been commended by his supervisor for receiving a perfect satisfaction score from his largest customer. He also argued that by doubling his sales quota and assigning him new products to sell, the employer was setting him up to fail and shared the blame for his declining sales performance. Surprisingly, the court of appeals found this argument to be sufficient to create a material issue of disputed fact which could only be resolved by a jury trial and not by a judge on summary judgment.

The court indicated that it was rejecting supposed evidence of discriminatory intent -- based on a comment by a non-decisionmaker (a plant general manager) that he and the plaintiff were the “old” company – because it was isolated and ambiguous.

In his dissent, one judge noted that the plaintiff had admitted that the employer wanted all of its salespeople to meet his new goal and “the median age of the company’s salesmen was 55; all were over the age of forty, and half were older than” the plaintiff. Moreover, merely because the plaintiff was good at certain aspects of his job should not have obviated the employer’s concern with his inability to generate new sales in the last three years. Nonetheless, the case was remanded to a jury trial.

Insomniacs can read the court’s decision in full at http://www.sconet.state.oh.us/rod/docs/pdf/5/2008/2008-ohio-6444.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.