United States District Court, N.D. Alabama, Southern Division
DOUGLAS R. PERRY, Plaintiff,
HAGEMEYER NORTH AMERICA, INC., Defendant.
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
Douglas R. Perry claims that his employer discriminated
against him on the basis of his age in violation of the
federal Age Discrimination in Employment Act, 29 U.S.C.
§ 621 et seq., and its Alabama counterpart, Ala. Code
§ 25-1-20 et seq. This matter is before the court on
Defendant's Motion for Summary Judgment (doc. 25) and
accompanying Memorandum of Law. (Doc. 26). Plaintiff filed a
response (doc. 31), and Defendant filed a reply. (Doc. 33).
reasons stated in this Memorandum Opinion, the court will
GRANT Defendant's Motion for Summary
Standard of Review
judgment allows a trial court to decide cases when no genuine
issues of material fact are present and the moving party is
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56. When a district court reviews a motion for
summary judgment, it must determine two things: (1) whether
any genuine issues of material fact exist; and if not, (2)
whether the moving party is entitled to judgment as a matter
of law. See Fed. R. Civ. P. 56(c).
moving party “always bears the initial responsibility
of informing the district court of the basis for its motion,
and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, ' which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56).
the moving party meets its burden of showing the district
court that no genuine issues of material fact exist, the
burden shifts to the non-moving party to produce sufficient
favorable evidence “to demonstrate that there is indeed
a material issue of fact that precludes summary
judgment.” Clark v. Coats & Clark, Inc.,
929 F.2d 604, 608 (11th Cir. 1991). “If the evidence
[on which the nonmoving party relies] is merely colorable, or
is not significantly probative, summary judgment may be
granted.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-50 (1986) (internal citations omitted).
ruling on a motion for summary judgment, the court should
view all evidence and inferences drawn from the underlying
facts in the light most favorable to the non-moving party.
See Graham v. State Farm Mut. Ins. Co., 193 F.3d
1274, 1282 (11th Cir. 1999). The evidence of the non-moving
party “is to be believed, and all justifiable
inferences are to be drawn in [its] favor.”
Anderson, 477 U.S. at 255. “If reasonable
minds could differ on the inferences arising from undisputed
facts, then a court should deny summary judgment.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th
Cir. 1997) (internal quotation marks and citations omitted).
This standard exists because “the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge.” Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 150 (2000) (quoting
Anderson, 477 U.S. at 255).
both parties have addressed the motion for summary judgment,
the court must grant the motion only if no genuine issues of
material fact exist and if the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56.
Statement of Facts
Douglas R. “Randy” Perry was born in 1956. Mr.
Perry worked for Defendant Hagemeyer's corporate
predecessor, Vallen Safety Supply, from 1983 until Hagemeyer
purchased Vallen between 1999 and 2001. Mr. Perry then worked
for Hagemeyer until his termination on April 1, 2013, when he
was 56 years old. While working for Vallen, Mr. Perry held
the position of sales office supervisor for approximately
three years and then became branch operations supervisor for
approximately ten years. Mr. Perry was made an outside
sales/account representative after Hagemeyer purchased Vallen
and held that role until his termination. Throughout his
entire employment, Mr. Perry was based in Birmingham, at his
employer's Pelham, Alabama branch.
is a business-to-business distributor of industrial, safety,
and electrical services and products to customers in the
utilities, heavy equipment manufacturing, transportation
services, and metal industries. Hagemeyer provides to its
customers a range of procurement and inventory management
services, including automated vendor-managed inventory (VMI)
systems, customized on-site storeroom management, and
integrated supply specialists. As an account representative,
Mr. Perry's primary responsibilities included selling and
servicing VMI services; maintenance, repair and operations
(MRO) products; and electrical products to industrial
customers in the Birmingham territory. From 2001 until his
termination, Mr. Perry's direct supervisor was Jay
Hooten, the District Manager of the Memphis/Alabama District.
U.S. Steel Account
after he became an account representative, Mr. Perry was
assigned to Hagemeyer's U.S. Steel account. In 2005,
Hagemeyer obtained an on-site service contract with U.S.
Steel at its Fairfield, Alabama mill, under which Hagemeyer
conducted drug testing and other safety activities for U.S.
Steel contractors. Mr. Perry was the primary account
representative for the Fairfield mill and so benefitted from
the contract in the form of increased commissions, although
other employees actually managed Hagemeyer's daily
operations at the mill. Originally, Hagemeyer contracted with
U.S. Steel to provide various kinds of safety equipment at
its Fairfield mill; as account representative, Mr. Perry
added other products and services to the contract and played
a large role in building up the U.S. Steel account.
U.S. Steel account comprised a significant portion of Mr.
Perry's sales. For example, in 2003, U.S. steel sales
accounted for approximately half of Mr. Perry's annual
sales of $2.5 million. In 2005, sales to U.S. Steel made up
almost $2.5 million of Mr. Perry's $3.2 million in total
territory sales and boosted his gross margin percentage from
26.74% in 2004 to 30.36% in 2005. These numbers remained
similarly high through 2008, when U.S. Steel sales accounted
for roughly 89% of Mr. Perry's total annual sales.
2008, Hagemeyer learned of the risk of losing the Fairfield
mill contract. Effective June 1, 2009, Hagemeyer designated
the U.S. Steel account a “house account, ” which
meant that neither Mr. Perry nor any other account
representative received commission credit for U.S. Steel
sales from that point forward. Mr. Hooten stated in his
declaration that the account was taken from Mr. Perry to
encourage him to focus on generating new business and new
customers. Mr. Perry contends that Mr. Hooten did not
communicate this purpose to him until the next year and that,
at various times, he was told this change was made to save
jobs and because Mr. Perry “was the only one making any
money” while Mr. Hooten and another employee were not
going to receive bonuses that year. (Doc. 27-2 at 77:8). Mr.
Hooten denies that he ever told Mr. Perry the change was made
to save jobs or to increase bonuses.
reduced Mr. Perry's salary upon designation of the U.S.
Steel account as a house account. In June 2009, Mr. Perry was
52 years old and was the second-oldest account representative
Mr. Hooten supervised. By late 2009, Hagemeyer had lost the
Fairfield service contract, resulting in a sharp decline in
U.S. Steel sales numbers.
Job Performance Prior to Loss of the U.S. Steel
Perry received praise and recognition for his job performance
before and after he became an account representative. In
2008, he received an award from Hagemeyer “for [his]
outstanding sales performance in 2008”; he had received
the same or a similar sales award prior to 2008. (Doc. 32-1
at 54). Mr. Hooten commented in Mr. Perry's 2008
performance evaluation that Mr. Perry had “a tremendous
year” and that “[h]is sales number alone is
impressive, but coupled with the GM% it is awesome! Randy
also capitalized on an opportunity with Alabama Power . . . .
Their sales were unplanned and help [sic] push Randy over the
top of his budget. . . . GREAT YEAR !!” (Doc. 32-1 at
Perry became Hagemeyer's leading Alabama account
executive several years prior to 2008 and held that spot
until Hagemeyer made the U.S. Steel account a house account
in 2009. Prior to the designation of the U.S. Steel account
as a house account, Mr. Perry gave a number of his accounts
to other account executives upon the request of Mr. Hooten;
he did so because “[he] still had U.S. Steel.”
(Doc. 27-2 at 37:15). Mr. Perry affirmed in his 2010
performance review that he “gave up over 40 accounts
over the past 3 years to help jr. sales reps have some
established accounts, ” and noted in his 2011
performance evaluation that “[a]ccounts were taken from
me over the past several years.” (Doc. 27-1 at 16, 20).
Mr. Perry was not disciplined during his 30 years of
Job Performance After Loss of the U.S. Steel Account
Mr. Perry's other accounts were made house accounts or
given to other account representatives at the time the U.S.
Steel account was taken from him. Mr. Perry's account
base did not decrease from 2010 through 2012. Mr. Perry's
sales, as measured by his yearly gross margin, declined from
2009 through 2012. During this time, he failed to replace the
U.S. Steel business and other decreasing revenue accounts
with new customers. None of his quarterly gross margin
numbers from 2010 through 2013 were as low as his gross
margin numbers for the last two quarters of 2009.
2009 performance review, after Hagemeyer took away the U.S.
Steel account, Mr. Perry was rated as “Needs
Improvement” (2.00-2.99 out of 5.00) in the
“Customer Focus” and “GM Dollars ($) to
Plan” categories and as “Unsatisfactory”
(0.00-1.99 out of 5.00) in the “Value Plus
Performance” category; he was rated as “Strong
Performer” in “New Account Development.” He
received an overall performance rating of “Needs
Improvement.” In his 2010 performance evaluation, Mr.
Perry was rated as “Needs Improvement” in
“GM Dollars ($) to Plan, ” “New Account
Development, ”and “Value Plus Performance,
” with an overall performance rating of “Needs
Improvement.” Mr. Hooten commented, “Although
Randy grew his business with APCO, he fell short of his total
GM$ plan by $245k. Randy has been in the Birmingham market
his entire career and has got to develop new relationships to
compliment [sic] his key account. Randy must grow his
territory by adding new customers.” (Doc. 27-1 at 15).
2011 performance review, Mr. Perry was rated as “Needs
Improvement” in “Value Plus Performance”
and as “Unsatisfactory” in “GM Dollars ($)
to Plan” and “New Account Development, ”
with an overall “Needs Improvement” rating. Mr.
Hooten commented that Mr. Perry “needs to work harder
to get more customers” and that he
fell woefully short of his sales and GM dollar goals by $750K
and $191K . . . . Plant Miller was down . . . but Randy
didn't bring on any new business to replace it other than
the VMI vending machines at Gaston. Randy single handily
[sic] got us an opportunity to quote on Sabic's PPE
contract. I want Randy to create a list of target
customers and start calling on them -- he is fully capable of
bringing new business to the table.
(Doc. 27-1 at 19).
2012, Mr. Perry's sales numbers fell below his GM dollars
goal for the fourth consecutive year; his 2012 goal was $450,
000 and his actual total was $289, 882.19. His 2012
performance evaluation included an
“Unacceptable” rating in “GM Dollars ($) to
Plan, ” “MRO-Value Plus Performance; C&I-
Marketing Initiatives, ” and “New Account
Development, ” with an overall
“Unsatisfactory” ranking. Mr. Hooten commented in
this review: “Another year has passed with Randy
underachieving and not growing his territory to an expected
level. . . . I have had numerous conversations with Randy
expressing my concerns and stressing the need for him to pick
up his pace, but to no avail.” (Doc. 27-1 at 23).
the U.S. Steel account was designated a house account, the
most substantial account assigned to Mr. Perry was the
Alabama Power account. Mr. Perry made up to three trips a
week to the Alabama Power plant in Wilsonville, Alabama to
complete a weekly inventory and restock vending machines. Mr.
Perry told Mr. Hooten in January 2013 that he was spending so
much time traveling to restock the Alabama Power vending
machines that he had difficulty building up other business.
Mr. Perry asked Mr. Hooten if a warehouse employee could
restock the vending machines instead, but Mr. Hooten declined
to designate a warehouse employee to complete that task.
However, after Mr. Perry was let go, a warehouse employee
took over restocking vending machines for Alabama Power. Mr.
Hooten testified that he and other sales representatives
regularly restocked inventory for customers.
Performance Improvement Plan
result of his failure to generate new business and improve
his sales performance, on January 11, 2013, Hagemeyer placed
Mr. Perry on a Performance Improvement Plan (PIP), which set
out the following four requirements for Mr. Perry to
1. Create a specific business plan targeting 20 customers
explaining how you will penetrate the account (specific
products, HTS presentation, VMI, etc.) This can be for
existing customers on big pieces of their business you
don't have today. Your plan should include contacts and
phone numbers, very specific dates you plan to meet the
customer, expected revenue, and a timeline for revenue. This
should be a very aggressive plan pointed towards $500, 000 in
GM$ per year. I expect this plan within 2 weeks.
2. Starting immediately, you will be required to submit a
call report for the upcoming week by COB each Friday. Your
report will show the day, customer, contact, purpose of call,
etc. for minimum of 5 calls per day. I'll provide you a
2013 Success Planner call report for you to use.
3. Contact our key supplier reps and include them in your
business plan. At a minimum, you will work with 4 different
suppliers each month making joint end user calls. Also, two
full days per month shall include ...