Phillips v. Mindray DS USA, Inc.

          MEMORANDUM OPINION

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE.

         Thomas H. Phillips asserts claims against his former employer, Mindray DS USA, Inc., for purported violations of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., and Alabama state law.^[1] Doc. 1. Allegedly, Mindray discriminated against Phillips by subjecting him to a hostile work environment and placing him on an unreasonable performance improvement plan, and discriminated and retaliated against him when he complained about the alleged discrimination by discharging him. Mindray moves for summary judgment on all claims, arguing that Phillips cannot establish his claims or show that its proffered reasons for the discharge are pretextual. Docs. 23; 25. For the reasons discussed below, Mindray's motion is due to be granted as to the hostile work environment and state law claims. But, because a question of fact exists regarding whether Mindray's reason for discharging Phillips is pretextual, the motion is due to be denied as to the discriminatory discharge and retaliation claims.

         I. STANDARD OF REVIEW

         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of informing the court of the basis of the motion and proving the absence of a genuine dispute of material fact. Id. at 323. If the moving party meets that burden, the burden then shifts to the non-moving party, who is required to go “beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (internal citations and quotation marks omitted). A dispute about a material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-movant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that a jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

         II. FACTUAL BACKGROUND

         A. Phillips' Relevant Work History at Mindray

         Mindray sells patient monitoring and anesthesia machines to hospitals and medical clinics. Doc. 24-1 at 4. Phillips worked as a sales manager for Mindray's anesthesia, or perioperative, division from 2009 until his discharge in July 2017 at the age of 62. Doc. 24-3 at 9, 15. As a sales manager, Phillips' responsibilities included working with “sales teams to meet and exceed sales quotas” for the number of anesthesia machines sold in his region. Doc. 24-4 at 2. To accomplish that goal, Phillips found potential leads for new customers “when [he] could, ” but he primarily relied on sales representatives in his region to find potential leads and sales opportunities. Doc. 24-3 at 21-22.^[2] Phillips then helped the representatives with their initial contact with prospective customers, and he also conducted training for customers and clinical trials in which a hospital or surgical center could try out Mindray's anesthesia system. Docs. 24-3 at 9, 18, 23; 24-4 at 2. But, as a sales manager, Phillips did not supervise or manage the sales representatives, who like Phillips, reported to a regional manager. Docs. 24-2 at 42; 24-3 at 9; 24-4 at 3.

         Phillips transferred to Mindray's South Central Region in 2015, where he reported to Mike Hackert, the regional manager. Doc. 24-3 at 21, 24. According to Phillips, Hackert, who was in his sixties, marginalized Phillips by focusing on the sales of patient monitoring devices, and by not inviting Phillips to participate in conference calls and meetings with sales representatives in the region. Doc. 24-3 at 8. The marginalization continued even after Hackert retired in January 2016. Id. at 6-8. Phillips contends that “the culture didn't change” with Mike Lessick, Hackert's replacement, and that Lessick also focused on the sales of patient monitoring machines. Id. at 8, 11. In addition, Lessick did not invite Phillips to regional sales meetings until August 2016. Id.

         For 2016, Mindray set Phillips' sales goal at approximately twenty anesthesia machines per quarter, or eighty-five machines for the year. Docs. 24-3 at 25; 24-6 at 2; 24-12 at 2; 32-1 at 2. Sales were down for the South Central Region in 2016, and the Region sold only forty anesthesia machines that year-less than half of Phillips' goal. Docs. 24-3 at 27-28; 24-6 at 2; 24-12 at 2; 32-1 at 2. The South Central Region sold the fewest number of anesthesia machines company-wide in 2016, amounting to about $444, 000 less in sales than the next closest region. Docs. 34-3 at 34. Consequently, Lessick told Phillips that they needed to work to develop the sales representatives to do a better job. Doc. 24-3 at 27-28. According to Phillips, it was unfair for Lessick to hold him responsible for the poor sales numbers because no one in Mindray's upper management who had authority over the sales representatives, including Lessick, encouraged them to promote the anesthesia machine sales, and the sales representatives emphasized selling patient monitoring devices over the anesthesia machines. Doc. 24-3 at 9, 14.

         For 2017, Mindray set Phillips a goal to sell eighty-six anesthesia machines, or about twenty machines per quarter. Doc. 24-7 at 2. But, in the first quarter of 2017, the South Central Region sold only six machines. Docs. 24-6 at 2; 24-8 at 2; 24-12 at 2. Based on the poor results, Lessick placed Phillips on a performance improvement plan (PIP) on April 24, 2017. Docs. 24-3 at 28; 24-12 at 2. The PIP noted that Phillips had not met his sales goals for any quarter of 2016 or the first quarter of 2017. Doc. 24-12 at 2. Under the PIP, one of Phillips' immediate objectives was to “Book and Ship, ” i.e., sell, twenty anesthesia machines for the second quarter of 2017. Id. at 3. The PIP informed Phillips that “it is imperative that [he] work in the field uncovering new business, both with and more specifically without the sales representatives” and that he “must build significant business on [his] own . . . .” Id. at 2 (emphasis in original). In addition, the PIP warned Phillips that if his performance did not improve, “additional corrective action will be taken, which may include termination.” Id. at 3. Phillips understood that Mindray could discharge him if he did not meet his goals. Docs. 24-3 at 28; 31-1 at 3.

         Phillips contends the PIP set him up for failure because selling twenty anesthesia machines in the days remaining in the second quarter “was impossible for any sales manager to accomplish.” Doc. 31-1 at 4. See also doc. 34-3 at 30. Phillips complained to Lessick about the purported unfairness of the PIP, contending that Lessick was holding Phillips accountable for sales representatives whom Phillips had no control over. Doc. 31-1 at 3-4. In response, Lessick told Phillips that he cannot rely on the sales representatives to generate sales, and that he needed to do more independently to find new business. Doc. 24-3 at 31.

         Although Phillips' sales performance improved, he still did not meet his sales goal for the second quarter of 2017. See doc. 24-8 at 2. Instead, he sold and shipped only twelve machines. Id.^[3] After the close of the second quarter, Lessick, Scott Dalebout, the Western U.S. Sales Director, and Michelle Thompson, the Human Resources Director, decided to discharge Phillips. Doc. 24-2 at 18. According to Mindray, it made the decision after considering Phillips' sales in 2015, 2016, and the first two quarters of 2017, and Lessick asserts that the “South Central performance related to anesthesia [machine sales] was the worst in the company” for that time period. Id. at 20. At discharge, Phillips was the oldest of the eight sales managers in Mindray's perioperative division^[4] and the oldest member of the sales team in his region. Docs. 24-3 at 32, 38; 32-1 at 19; 33-1 at 19. Mindray replaced Phillips with an individual twelve to fifteen years younger than Phillips. Doc. 31-1 at 6.

         B. The Alleged Harassment, Phillips' Complaints, and Retaliation

         Shortly after Lessick became his supervisor, Phillips attended a dinner with Lessick and other sales employees and regional managers who were allegedly all younger than Phillips. Docs. 23-3 at 7; 33-1 at 19. At the dinner, a regional manager offered a toast to a Mindray employee who was soon to retire. Doc. 24-3 at 11.

         After the toast, Lessick turned to Phillips and asked in front of the group, “so when are you going to retire?” Docs. 24-3 at 11; 33-1 at 19. The question shocked Phillips, who responded that he had no intentions of retiring. Doc. 24-3 at 11. Phillips claims the dinner became awkward, and that after the dinner, other Mindray employees asked Phillips about his retirement plans. Docs. 24-3 at 11; 33-1 at 19. Lessick made another age-related comment to Phillips when he placed Phillips on the PIP, stating, “you're planning on retiring anyway, aren't you, sometime soon?” Doc. 24-3 at 12. And, while Phillips was on the PIP, several sales representatives commented to Phillips, “you're planning on retiring anyway, weren't you?” Doc. 24-3 at 12-13.

         In June 2017, Phillips complained to Wayne Quinn, the President of Mindray, about the age-related comments and the unreasonableness of the PIP. Doc. 31-1 at 5, 14. Phillips complained of being “singled out for the lack of effort on behalf of the entire [South Central] Team, ” and wrote that he felt he was “singled out because of [his] age, especially where Lessick and others have repeatedly asked [him] ‘when [he] plan[s] to retire.'” Id. at 14. Quinn forwarded Phillips' letter to Lessick, Thompson, and Dalebout, but did not respond to Phillips. Id. at 5, 13. Instead, Thompson called Phillips and said she was concerned about the alleged age discrimination, but he did not hear anything further from her about his complaint. Doc. 24-3 at 37. For its part, Mindray claims that Thompson's investigation found the complaint unsubstantiated. See docs. 24-2 at 57; 24-19 at 4.

         After Quinn failed to respond, Phillips sent another message to Quinn expressing concern about Lessick's failure to support sales of the anesthesia machines and stating that a successful region requires the Regional Manager “to engage and that is not happening.” Id. at 17. When Quinn failed again to respond, id. at 5, Phillips filed a charge with the Equal Employment Opportunity Commission (“EEOC”), alleging discrimination on account of age and disability. Doc. 33-1 at 17. Less than three weeks later, Lessick called Phillips and, “in an angry voice and with significant venom, ” discharged Phillips by telling him, “you're done.” Id. at 6. Phillips contends that Lessick offered no reason for the discharge and demanded Phillips return of all of his company property immediately. Id. Thereafter, Phillips filed a second charge with the EEOC, alleging Mindray discharged him in retaliation for filing his first charge. Id. at 21-23. This action followed.

         III. ANALYSIS

         Phillips asserts claims for age discrimination, hostile work environment, retaliation, negligent and wanton supervision and training, and invasion of privacy. The court addresses the parties' contentions related to these claims in turn.^[5]

         A. Age Discrimination Claims

         Phillips asserts that Mindray discriminated against him in violation of the ADEA and the Alabama Age Discrimination in Employment Act (“AADEA”) when it placed Phillips on a PIP and subsequently discharged him.^[6] Phillips may prove his claims with either direct or circumstantial evidence. Kragor v. Takeda Pharma. America, Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (citation omitted). “‘Only the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of age, constitute direct evidence of discrimination.'” Earley v. Champion Intern. Corp., 907 F.2d 1077, 1081 (11th Cir. 1990) (alterations in original omitted) (quoting Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989)). “An example of direct evidence would be a management memorandum saying, ‘Fire Earley-he is too old.'” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1360 (11th Cir. 1999) (quoting Earley, 907 F.2d at 1082). In other words, evidence that only suggests discriminatory intent is not direct evidence. Earley, 907 F.2d at 1081-82 (citing Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987)). And, “[d]iscriminatory remarks do not constitute direct evidence if they were not related to the challenged employment action or were not made by the decision maker.” Ritchie v. Indus. Steel, 426 Fed.Appx. 867, 871 (11th Cir. 2011) (citing Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998)).

         Phillips contends that Lessick's comments, i.e., “When are you going to retire?” and that Phillips was “planning on retiring anyway, ” doc. 30 at 19, are direct evidence of discrimination. But, Phillips has failed to show Lessick's question about Phillips' retirement plans at a dinner in 2016 was related to the decision to place Phillips on a PIP or discharge him in 2017. See doc. 24-3 at 11. Thus, although the question may have been insensitive and rude, it is not direct evidence of discrimination. See Ritchie, 426 Fed.Appx. at 871. And while Lessick's comment that Phillips was planning on retiring anyway may present a closer question because Lessick made the comment when placing Phillips on a PIP, see doc. 24-3 at 12, it is still not such a blatant remark that it can prove discrimination without the need for an inference or presumption. The statement was not related to Phillips' sales performance, which was the subject of the PIP, and Phillips does not dispute the actual sales numbers (only that he was not responsible for the downturn) that prompted his placement on the PIP. Consequently, Phillips has ...