United States District Court, N.D. Alabama, Southern Division
THOMAS H. PHILLIPS, Plaintiff,
MINDRAY DS USA, INC., Defendant.
K. KALLON UNITED STATES DISTRICT JUDGE.
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
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.
STANDARD OF REVIEW
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).
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).
Phillips' Relevant Work History at
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. 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.
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.
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
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.
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.
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. 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 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.
The Alleged Harassment, Phillips' Complaints, and
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.
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.
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.
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.
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
Age Discrimination Claims
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. 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)).
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