United States District Court, C.D. California
Present: The Honorable CHRISTINA A. SNYDER, JUDGE.
CIVIL MINUTES - GENERAL
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (dkt. 43, filed
October 5, 2017)
August 24, 2015, plaintiff Christopher Landig filed the
instant action against CooperSurgical, Inc., Tim Mukand,
Bryan Hickman, Joanne Augustine, and Does 1 to 100 in Los
Angeles County Superior Court. Dkt. 1 & Ex. 1
(“Compl.”). Plaintiff asserts the following
claims against defendants: (1) age discrimination in
violation of the Fair Employment and Housing Act
(“FEHA”), Cal. Gov't Code § 12940 et
seq.; (2) harassment on the basis of age in violation of
FEHA; (3) retaliation in violation of FEHA; (4) failure to
promote in violation of FEHA; (5) breach of express oral
contract not to terminate employment without good cause; (6)
breach of implied-in-fact contract not to terminate
employment without good cause; (7) negligent hiring,
supervision, and retention; (8) wrongful termination of
employment in violation of California public policy; (9)
violation of California Labor Code § 1102.5; and (10)
intentional infliction of emotional distress. Id. On
September 22, 2016, CooperSurgical filed an answer, dkt. 1,
and also filed a notice of removal asserting diversity
jurisdiction pursuant to 28 U.S.C. §§ 1332(a) and
1441, dkt. 1.
November 14, 2016, the Court issued an order dismissing
Mukand and Augustine from this action without prejudice,
finding that the claims against Mukand were untimely and that
plaintiff failed to adequately allege claims against
Augustine. Dkt. 19.
October 5, 2017, CooperSurgical and Hickman (collectively,
“defendants”) filed the instant motion for
summary judgment. Dkt. 43 (“MSJ”). Plaintiff
filed his opposition on October 23, 2017, dkt. 47
(“Opp'n), and defendants filed their reply on
October 30, 2017, dkt. 48 (“Reply”).
carefully considered the parties arguments, the Court finds
and concludes as follows.
following facts are not meaningfully disputed and are set
forth for purposes of background. Unless otherwise noted, the
court references only facts that are uncontroverted and as to
which evidentiary objections have been
Plaintiff's Hiring and Promotion at
based in Connecticut, manufactures and provides medical
devices and procedure-based solutions for women's
healthcare throughout the United States and Europe.
Defendants' Statement of Uncontroverted Facts
(“DSUF”), dkt. 49, at no. 1; Declaration of
Joanne Augustine, dkt. 43-7 (“Augustine Decl.”)
¶ 2. Its clients include hospitals, doctors, and
fertility specialists, among others. Id. Plaintiff
was hired as a certified sales representative for
CooperSurgical in November 2006 in the company's Surgical
Business Unit. Plaintiff's Statement of Facts
(“PSF”), dkt. 47-1, at no. 1; DSUF at no. 2;
Deposition of Christopher Landig (“Landig Depo.”)
at 19:-6-20:6 & Ex. 2; Compl. ¶ 10.
offer letter reflected that his employment at CooperSurgical
was at will. DSUF at no. 132; Landig Depo. at 19:6-20:8 &
Ex. 2. On or about December 12, 2012, plaintiff signed an
authorization form acknowledging that “my employment
relationship with CooperSurgical is an employment-at-will
relationship, that I have the right to terminate my
employment at any time, and that CooperSurgical may terminate
our employment relationship at any time, with or without
cause and with or without notice.” DSUF at no. 133;
Landig Depo. at 65:14-66:9 & Ex. 6. Plaintiff understood
that he was employed pursuant to an at-will agreement, DSUF
at no. 134; Landig Depo. at 20:16-21:2, 21:10-13 & Ex. 2,
and he was never told otherwise by anyone at CooperSurgical,
DSUF at no. 135; Landig Depo. at 21:3-5. Moreover, plaintiff
has not seen any writing to indicate that his employment at
CooperSurgical was not at will. DSUF at no. 137; Landig Depo.
in the United States for CooperSurgical's Surgical
Business Unit are divided into geographical regions run by
Regional Managers. DSUF at no. 3; Declaration of Greg
Azarian, dkt. 43-5 (“Azarian Decl.”) ¶ 4.
Territories within each region are assigned to a single
salesperson. DSUF at no. 4; Azarian Decl. ¶ 4. The
territories that salespeople are assigned to are subject to
realignment or alteration. PSF at no. 10; Deposition of
Hickman (“Hickman Depo.”) at 129:5-130:19; Landig
Decl. ¶ 6.
was the sole representative assigned to the LA Basin
territory, which is part of the Western Region. DSUF at no.
5; Declaration of Bryan Hickman, dkt. 43-9 (“Hickman
Decl.”) ¶ 3. Plaintiff worked out of his home in
Yorba Linda and also worked “out in the field.”
PSF at no. 2; DSUF at no. 6; Landig Depo. at 15:18-22;
16:7-9; Landig Decl. ¶ 4. Plaintiff achieved favorable
sales numbers in 2010 and 2011. PSF at no. 3; Landig Decl.
¶ 8 & Ex. 1; Landig Depo. at 80:14-82:6.
about 2011, Bryan Hickman became the Regional Manager of the
Western Region, and thereby became plaintiff's
supervisor. DSUF at no. 7; Hickman Decl. ¶ 3. Hickman
replaced plaintiff's former supervisor, Tim
Mukand.PSF at no. 5; Landig Depo. at 28:10-12.
Hickman had initial reservations about what he perceived as
plaintiff's lack of a sense of urgency and planning, but
felt that their working relationship was generally good. DSUF
at no. 8; Id. ¶ 5.
Hickman assigned parts of plaintiff's territories to a
younger sales employee, Matthew Kama, who was in his 30s. PSF
at no. 9; Hickman Depo. at 140:9- 11, 141:12-16. The
realignment of plaintiff's territories, which went into
effect on November 1, 2011, included reassigning UCLA and
Kaiser, two of plaintiff's most valuable accounts, to
Kama. PSF at no. 10; Hickman Depo. at 129:5-130:19, 140:9-11;
Landig Decl. ¶ 6. Hickman told plaintiff that he took
UCLA out of plaintiff's territories as part of an effort
to create a territory for Kama to be successful. PSF at no.
12; Landig Depo. at 85:1-13. Kama had missed quota for a year
and a half before being assigned this portion of
plaintiff's territories.PSF at no. 13; Landig Depo. at
82:7-25. Once these territories were realigned,
plaintiff's numbers dropped.PSF at no. 14; Landig Depo.
¶ 80:14-82:6; Landig Decl. ¶ 7.
February or March 2012, Hickman promoted plaintiff to Senior
Certified Sales Representative position because Hickman's
superior had an expectation that he would do so, and because
of Hickman's five direct employees, plaintiff was the
only one eligible for promotion. PSF at no. 15; DSUF at no.
9; Hickman Depo. at 119:4-19, 151:3-23; Hickman Decl. ¶
6; Landig Dep. at 66:11-17; 68:3-9; Landig Decl. ¶ 4. In
connection with the promotion, plaintiff received higher
commissions. DSUF at no. 10; Landig Depo. at 67:21-23;
Hickman Decl. ¶ 6. At the time of this promotion,
plaintiff was 56 years old. DSUF at no. 11; Augustine Decl.
Plaintiff's Annual and Disciplinary Reviews
about June 6, 2012, Hickman delivered a mid-year performance
review to plaintiff. DSUF at no. 12; Landig Depo.
71:21-73:10; 111:17-112:12 & Ex. 8. Plaintiff believed
that the review was accurate. DSUF at no. 13; Landig Depo. at
71:21-73:10; 111:17-112:12 & Ex. 8.
about September 14, 2012, Hickman issued a disciplinary
letter (the “September 2012 Performance Letter”)
to plaintiff notifying him that he was not on track to meet
his quota for the fiscal year ending in October 2012 and
setting forth specific goals and expectations. DSUF at no. 14
& Ex. 9; Landig Depo. 77:8-21, 79:21-80:10; Hickman Decl.
¶ 7. The parties dispute Hickman's motivation in
issuing the letter, whether the letter was used as an act of
discrimination against plaintiff, and the alleged events
parties do not dispute the following contents of the
September 2012 Performance Letter: (1) plaintiff was at 88.69
percent of his year-to-date quota, DSUF at no. 15; Landig
Depo., 78:1-7 & Ex. 9; Hickman Decl., ¶ 7 & Ex.
9; and (2) the average territory in the Surgical Business
Unit was at 22 percent growth for the year, while
plaintiff's territory was at 7.8 percent growth, DSUF at
no. 16; Landig Depo., 78:8-16 & Ex. 9. While plaintiff
does not dispute the letter's contents, he implies,
without evidence, that the letter was pretextual and prepared
to create a record suggesting inadequate performance.
the goals set forth in the September 2012 Performance Letter
was that plaintiff make at least 95 percent of his
quota. DSUF at no. 18; Landig Depo. at 78:8-16
& Ex. 9; Hickman Decl., ¶ 7, & Ex. 9. The
September 2012 Performance Letter advised plaintiff that if
he did not meet the goals set forth in the letter, his
employment could be terminated. DSUF at no. 20; Landig Depo.
at 78:8-16 & Ex. 9; Hickman Decl., ¶ 7 & Ex. 9.
Though Augustine-the manager of human resources at
CooperSurgical-could not recall her roll in drafting the
language “up to and including termination” in
plaintiff's letter, Hickman testified that he was the one
who wrote the employment termination language in
plaintiff's performance letter. PSF at no. 18 & Ex.
5; Augustine Depo. 147:8-148:21; Hickman Depo. 162:8-22;
Landig Decl. ¶ 10.
the same time Hickman issued plaintiff the September 2012
Performance Letter, he issued one to a younger unidentified
employee, approximately in his 30's, (hereinafter
“Employee E”) who was also not on track to make
quota. PSF at no. 17 & Exs. 3, 4; DSUF at no. 22; Hickman
Decl., ¶ 8 & Ex. 47; Landig Decl. ¶ 9; Landig
Depo. 46:16-48:4. Hickman perceived Employee E as an
inexperienced sales representative and did not feel that he
needed as serious a message as plaintiff to motivate him-
accordingly, Employee E's letter mentioned probation, and
not termination, as a possible consequence if his outlined
goals were not met. DSUF at no. 23; Hickman Decl., ¶ 8
& Exh. 47; Landig Depo., 46:1-48:13.
believed that he was discriminated against on the basis of
his age because he was threatened with employment termination
and Employee E, who was younger, was not threatened with
employment termination. PSF at no. 19; Landig Decl. ¶ 9.
On or about September 18, 2012, plaintiff emailed Augustine
to complain about the September 2012 Performance Letter and
stated that Hickman's attitude, as reflected in the
letter, had more to do with plaintiff's age than with his
performance. PSF at no. 22; DSUF at no. 100; Landig Depo. at
45:21-46:9 & Ex. 3; Augustine Decl. ¶ 7 & Ex. 3.
Plaintiff also objected to his recent territory realignment,
stating that it was unfair and made it harder for him to meet
his quota. DSUF at no. 101; Landig Depo. at
45:21-46:8 & Ex. 3; Augustine Decl. ¶ 7 & Ex. 3.
Augustine testified that defendants' policy and procedure
is to conduct an investigation of any complaint of
discrimination or harassment. PSF at no. 23; Augustine Depo.
does not dispute that Augustine concluded there was no
evidence of age bias, and communicated this conclusion to
plaintiff. DSUF at no. 102; Augustine Decl. ¶ 7 &
Ex. 3. Plaintiff argues that Augustine's investigation
was inadequate or flawed because it lacked the requisite
thoroughness. However, plaintiff offers no admissible
evidence to support this conclusion.
did not tell Hickman or Azarian about plaintiff's
complaint, and did not tell them that plaintiff was concerned
that his age was a possible factor in his performance letter.
DSUF at no. 103; Landig Depo. at 103:14-24; Augustine Decl.
¶ 9; Azarian Decl. ¶ 20; Hickman Decl. ¶ 7.
Hickman and Azarian were not aware until after
plaintiff's employment was terminated that plaintiff had
made an internal age discrimination complaint about Hickman.
DSUF at nos. 104-105; Hickman Decl. ¶ 7; Azarian Decl.
weeks after plaintiff received the September 2012 Performance
Letter, he protested to Hickman that he believed the
performance improvement plan was unfair because his territory
had been cut the prior year and given to Kama, a younger
sales representative, and plaintiff was still carrying the
quota for those territories. PSF at no. 25; Hickman Depo. at
140:9-11; Landig Depo. at 80:14-82:6; Landig Decl. ¶ 12.
about January 15, 2013, Hickman presented plaintiff with a
year-end performance review which reflected that
plaintiff's performance was satisfactory, noting
“[a]lthough Chris did not hit his Performance
Improvement Plan objective of 95% to quota, he did have a
strong 4th quarter to finish at 92%.” DSUF at no. 25;
Landig Depo. at 106:12-14, 107:1-13, 108:6-14, 113:15-19,
113:25-114:6 & Ex. 10; Hickman Decl. ¶ 8 6 Ex. 10.
Plaintiff did not see any reason to refute anything in the
year-end performance review. DSUF at no. 26; Landig Depo.,
107:14-108:5 & Ex. 10.
about January 25, 2013, Hickman felt that he needed to
motivate plaintiff again and issued plaintiff another
performance improvement letter (the “January 2013
Performance Letter”). PSF at no. 28; DSUF at no. 27;
Landig Depo., 113:3-14 & Ex. 11; Hickman Decl. ¶ 10
& Ex. 11. The January 2013 Performance Letter reflected
that plaintiff was not meeting his goals and objectives and
that his “territory ranks the lowest in sales in the
region and is the only territory with year to date sales
below base, ” and further reflected that plaintiff was
required to meet 100% of quota for the year. DSUF at no. 28;
Landig Depo. at 113:3-14 & Ex. 11; Hickman Decl. ¶
10 & Ex. 11. The contents of the letter are undisputed:
(1) plaintiff had grown his sales 3 percent between the
September 2012 Performance Letter and the end of the fiscal
year; (2) he was trending below base at 94.9 percent of his
base; (3) he was trending to finish January at 84.6 percent
of his quota; and (4) he had negative year-to-date growth in
all product categories, with the exception of two
products. DSUF at nos. 29-32; Landig Depo.,
113:20-114:19 & Ex. 11; Hickman Decl. ¶ 10 & Ex.
11. The letter notified plaintiff that he faced employment
termination if he did not meet the letter's stated
objectives. PSF at no. 29; Landig Decl. ¶ 13 & Ex.
told Hickman that the January 25, 2013 letter was for the
purposes of harassment, and that he had “given it his
all” to get to 92 percent after a year where his
territory was cut. PSF at no. 30 & Ex. 6; Landig Depo. at
115:25-116:17; Landig Decl. ¶ 13. Plaintiff did not have
an issue with Hickman communicating the content of this
letter to him orally, but he took issue with Hickman putting
it in writing and adding it to his file. DSUF at no. 33;
Landig Depo. at 117:7-21, 118:18-22 & Ex. 11. Plaintiff
also took issue with the letter insofar as it threatened him
with employment termination. Landig Decl. ¶ 13.
about May 24, 2013, Hickman issued plaintiff a mid-year
performance review that plaintiff agreed was favorable. DSUF
at no. 34; Landig Depo. at 119:16-21, 121:15-122:2,
122:18-123:2 & Ex. 12. Plaintiff finished the fiscal year
at 96 percent of quota, though this fell short of the 100
percent quota set forth in the January 2013 Performance
Letter. DSUF at no. 35; Landig Depo. at
128:24-129:23 & Ex. 13; Hickman Decl. ¶ 11 & Ex.
13. Hickman felt that plaintiff had made a good effort at
that time that he issued plaintiff an end-of-year performance
review on November 15, 2013, which plaintiff agreed was fair
and positive. DSUF at no. 36; Landig Depo. at 128:22-129:13
& Ex. 13; Hickman Decl. ¶ 11 & Ex. 13.
about May 13, 2014, Hickman issued plaintiff a mid-year
performance review, which plaintiff agreed was fair and
favorable. DSUF at no. 37; Landig Depo. at 129:24-131:2 &
Ex. 14. For fiscal year 2014, plaintiff was at 104 percent of
quota. PSF at no. 32; DSUF at no. 38; Landig Depo. at
131:18-24; Hickman Decl. ¶ 12. On or about November 11,
2014, Hickman issued plaintiff an end-of-year performance
review, which Landig agreed was fair and favorable. DSUF at
no. 39; Landig Depo. at 131:25-132:24 & Ex. 15.
Azarian's 2015 Promotion to Vice President and Subsequent
Interactions with Plaintiff
January 2015, Gregory Azarian was promoted to Vice President
of the Surgical Business Unit at CooperSurgical, which
oversees sales in all U.S. regions. He became Hickman's
supervisor. DSUF at no. 40; Azarian Decl. ¶ 3; Hickman
Decl. ¶ 13.
began looking for someone to fill the Regional Manager,
Mountain States position. DSUF at no. 110; Azarian Decl.
¶ 5. On or about February 5, 2015, plaintiff informed
Azarian that he was interested in the Regional Manager,
Mountain States position, and Azarian asked him to forward a
list of accomplishments. DSUF at no. 111; Landig Depo. at
133:21-134:25 & Ex. 16; Azarian Decl. ¶6. On or
about February 11, 2015, plaintiff forwarded this information
to Azarian. PSF at no. 35; DSUF at no. 112; Landig Depo. at
133:21-134:25 & Exh. 16; Azarian Decl. ¶ 7 & Ex.
16. The Mountain States Region included Northern California,
Washington, Oregon, Montana, Idaho, Wyoming, Northern Nevada,
Utah, and Colorado. DSUF at no. 114; Azarian Decl. ¶ 8.
Azarian preferred that Regional Managers live within their
regions in order to cut down on travel time and expenses.
DSUF at no. 113; Azarian Decl. ¶ 8; Landig Depo. at
who was based in Connecticut, conducted a telephonic
interview with plaintiff for the position. DSUF at no. 115;
Landig Depo. at 138:9-25; Azarian Decl. ¶¶ 3, 8.
After the interview, Azarian formed the impression that
plaintiff was not willing to move in order to live in the
territory, DSUF at no. 116; Azarian Decl. ¶ 8, although
plaintiff contends that he specifically told Azarian he was
willing to relocate, PSF at no. 35; Landig Decl. ¶ 5;
Landig Depo. at 140:20-24, 141:25-142:6.
February 24, 2015, Azarian emailed plaintiff and inquired
whether he was still interested in the Regional Manager
position and noted that he had not heard from plaintiff. DSUF
at no. 117. Plaintiff responded that he was still interested,
and forwarded his new resume that day, as Azarian advised.
DSUF at no. 117; Landig Depo. at 146:21-148:19 & Exs.
17-18; Azarian Decl. ¶ 9 & Ex. 17. The fact that
Azarian had to prompt plaintiff to forward his current
resume-after plaintiff had sent Azarian an outdated resume on
February 11, 2015-left Azarian with the impression that
plaintiff was not pushing that hard for consideration for the
promotion. DSUF at no. 118; Azarian Decl. ¶ 9.
ultimately decided to transfer Mukand, then Regional Manager,
Southwest Region, laterally into the Mountain States Regional
Manager position. DSUF at no. 121; Azarian Decl. ¶ 11;
Augustine Decl. ¶ 4(h). Mukand was in his 50's at
the time he transferred positions. DSUF at no. 122; Augustine
Decl. ¶ 4(h). Azarian made this lateral transfer
decision because (1) Mukand was already an experienced
Regional Manager; (2) Azarian was familiar with his
performance as a manager, having worked with him for several
years; and (3) Mukand had recently relocated from Chicago to
Pasadena, which was outside of both regions, but closer to
the Mountain States Region.DSUF at nos. 123-124; Azarian
Decl. ¶ 11.
was informed of Azarian's decision regarding the Regional
Manager positions on or about March 5, 2015. DSUF at no. 130;
Landig Depo. at 148:20-149:17 & Ex. 19. Though plaintiff
disagreed with this decision because of Mukand's alleged
history of discriminatory age-based comments to another
employee over the age of 40, Landig Decl. ¶ 27,
plaintiff did not express his disagreement with this decision
in his response to Azarian. DSUF at no. 131; Landig Depo. at
148:20-149:17 & Ex. 19.
Plaintiff's April 2015 Plan and Review Meeting with
Hickman and Azarian
early 2015, after plaintiff's performance of 104 percent
of quota for fiscal year 2014, Hickman shared concerns about
plaintiff's performance with Azarian, who at that point
had no knowledge of plaintiff's performance. PSF at no.
34; Azarian Depo. 150:3-22, 151:4-8, 165:12-24.
about March 30, 2015, Hickman sent an email to plaintiff to
advise him that he and Azarian wanted to meet with him for a
“Plan and Review” meeting on April 14, 2015. DSUF
at no. 41; Landig Depo. at 165:12-166:6 & Ex. 21; Hickman
Decl. ¶ 14. On or about April 8, 2015, Hickman emailed
plaintiff to inform him that he should come prepared to
discuss his territory growth strategy and target accounts
through the end of the fiscal year 2015, territory
opportunities and challenges, status of his top five revenue
accounts, current contracts, target accounts where a new
contract might be helpful, and his business at risk. DSUF at
no. 42; Landig Depo. at 151:1-19 & Ex. 20; Hickman Decl.
¶ 15 & Ex. 20.
about April 14, 2015, Hickman and Azarian flew out to meet
with plaintiff at the LAX Marriott for the scheduled meeting.
DSUF at no. 43; Landig Depo. at 151:16-152:6, 165:12-166:6,
& Ex. 21; Azarian Decl., ¶ 14; Hickman Decl., ¶
16. During the meeting, Azarian and Hickman posed various
questions to plaintiff about why certain aspects of his
business were down and how plaintiff planned to meet his
quota for the coming year. DSUF at no. 44; Landig Depo. at
156:13-15, 159:24-160:5; Azarian Decl., ¶ 15; Hickman
Decl., ¶ 16. In response to questions regarding his low
sales numbers, plaintiff expressed his concern that he had
new products quota with no new products because their
launches were delayed; CooperSurgical no longer had a patent
on a particular device and accordingly, competition was
setting in; and one of plaintiff's big accounts blamed
Obamacare for a decrease in business. PSF at no. 36; Landig
Depo. at 154:20-156:24, 160:16-25, 162:3-164:7; Landig Decl.
¶ 17. Azarian and Hickman did not inquire into the
details of these reasons plaintiff gave to explain his low
sales numbers. PSF at no. 38; Landig Decl. ¶ 17.
parties dispute the level of detail that plaintiff provided
in response to questions from Hickman and Azarian, and
whether plaintiff brought a written action plan with him to
this meeting that detailed how he would meet his quota.
Azarian was bothered that plaintiff did not provide answers
with sufficient detail as to why sales were down in his
territory, and Azarian excused himself from the room to
collect his thoughts. DSUF at nos. 46, 48; Azarian Decl.
felt that it was a tough and uncomfortable meeting, in part
because he did not have an answer to how he was going to make
up the “gap.” DSUF at no. 49; Landig Depo. at
153:25-154:7, 155:4-20; 158:12-17, 159:4-8. Plaintiff
understood that Azarian was disappointed in his answers to
questions posed to him during the meeting because he could
not tell them how he was going to make up the gap in his
quota. DSUF at no. 50; Landig Depo. at 159:24-160:5.
Plaintiff agreed that the questions that Azarian and Hickman
asked him during the plan and review meeting were not unfair.
DSUF at no. 51; Landig Depo. at 182:5-13.
on what Azarian perceived as (1) plaintiff's basic
ignorance of the state of affairs in his own territory; (2)
his lack of plan to stop the slide in sales; and (3) his
apparent lack of caring that he had no plan, Azarian decided
that plaintiff's employment should be terminated. DSUF at
no. 52; Azarian Decl. ¶ 16. Azarian communicated this
decision to Hickman after the plan and review meeting. DSUF
at no. 53; Azarian Decl. ¶ 16; Hickman Decl. ¶ 17.
However, this was not a final decision, as Azarian asked
Hickman to work with plaintiff to help turn plaintiff's
performance around before moving forward with plaintiff's
employment termination. DSUF at no. 54; Azarian Decl. ¶
16; Hickman Decl. ¶ 17. Accordingly, Azarian decided
that, unless Landig engaged in specific and detailed planning
necessary to provide his managers with basic information
about his territory and necessary to meet his sales quotas,
Azarian would move forward with the termination. DSUF at no.
55; Azarian Decl., ¶ 16.
following the plan and review meeting Hickman emailed
plaintiff that he was embarrassed by his lack of detailed
preparation, and attached a form spreadsheet that he
requested plaintiff use to set monthly sales goals for each
client target, including a detailed plan on how to achieve
these goals. DSUF at no. 57; Landig Depo. at 172:8-173:10
& Ex. 22; Hickman Decl. ¶ 22. Plaintiff understood
how Hickman could have been embarrassed by plaintiff's
lack of detailed preparation for the meeting. DSUF at no. 58;
Landig Depo. at 173:11-13. On or about April 22, 2015,
Hickman provided plaintiff with an example of the kind of
detailed information that he wanted plaintiff to use in his
plans. DSUF at no. 59; Hickman Decl. ¶ 19 & Ex. 23.
about May 7, 2015, Hickman delivered plaintiff's mid-year
review, the contents of which are undisputed-Hickman rated
plaintiff as having “opportunity for improvement”
in seven areas: creativity, self-confidence, having a sense
of urgency, sales presentations, identifying high return
opportunities, and displaying an understanding of the
marketplace, customers and competition. Plaintiff was rated
as “off plan” on all of his objectives and only
at 82% of quota. The comments reflected he was ranked 70th in
his business unit out of 82 sales representatives. DSUF at
no. 60; Landig Depo. 186:14-190:14, 191:2-192:6 & Ex. 24;
Hickman Decl., ¶ 20 & Ex. 24.
Hickman's May 2015 Ride-Along with Plaintiff
about May 19-21, 2015, Hickman conducted a ride-along with
plaintiff. DSUF at no. 63; Landig Depo. at 193:12-20; Hickman
Decl. ¶ 22. During a ride-along a supervisor accompanies
a sales representative for the day, visits accounts, talks to
customers, and attends surgeries. DSUF at no. 64; Landig
Depo. at 27:6-12. The general purpose of a ride-along
includes showcasing a sales representative's skills,
facilitating communications with the Regional Manager, and
helping the sales representative with tough accounts. DSUF at
no. 65; Landig Depo. 194:6-10.
first day of the ride-along, plaintiff picked up Hickman from
the airport shortly after 1:00 pm. DSUF at no. 66; Landig
Depo. at 55:4-5. During lunch Hickman told plaintiff that he
knew plaintiff had his “big birthday, ” to which
plaintiff responded, “What birthday?” PSF at no.
42; Landig Depo. 206:7-13; Landig Decl. ¶ 20. Hickman
responded to plaintiff, “I know you are 60, Chris, you
are the oldest and highest paid employee we
have.” Landig Depo. 206:13-18; Landig Decl.
third and final day of the ride-along, plaintiff dropped
Hickman off at his hotel so that Hickman could join a
conference call scheduled for 12:30 p.m. and make other
telephone calls thereafter. PSF at no. 45; DSUF at no. 71;
Landig Decl. ¶ 22. Plaintiff asked Hickman's
permission to see his son sworn into the military at a nearby
ceremony, and Hickman agreed. PSF at no. 45; Landig Depo. at
61:23-62:6; Hickman Decl. ¶ 23. Plaintiff told Hickman
that he would be gone for about an hour, yet plaintiff was
gone for over four hours. DSUF at nos. 72-73; Landig Depo. at
62:14-63:8; Hickman Decl. ¶ 23. Plaintiff tried calling
Hickman to warn him, but Hickman did not take his calls. PSF
at no. 46; Landig Depo. at 61:20-63:1; Landig Decl.
¶¶ 22-23. Hickman was angry about what he perceived
as a wasted afternoon and poor planning on plaintiff's
part. DSUF at no. 74; Hickman Decl. ¶ 23. Plaintiff
anticipated that Hickman would be angry. PSF at no. 46; DSUF
at no. 75; Landig Depo. at 61:16-19. After plaintiff arrived
back at Hickman's hotel, the two sat down to discuss the
ride-along and disagreed on how the ride-along went; Hickman
lost his temper and screamed “Fuck you! Fuck you!
I'm so mad I could kill you!” and raised his fists
at plaintiff. PSF at no. 47; Landig Depo. at 210:18-211:8,
329:10-330:1; Landig Decl. ¶ 23.
prepared a field coaching report for the trip to let
plaintiff know that his level of planning and activity was
not where it needed to be, noting that “[t]he level of
activity is too low and unacceptable…[t]alking with
two surgeons, attending one proctor RUMI II case, and
stopping by two hospitals over the course of a two half day
and one full day field visit is not enough activity.”
DSUF at no. 76; Hickman Decl. ¶ 24 & Ex. 27; Landig
Depo. at 215:8-16, 234:7-14 & Ex. 27. Plaintiff prepared
comments in response to the field coaching report that
included: “As far as what we accomplished, I am my own
worst enemy and always wish I had done more throughout the