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Landig v. Coopersurgical, Inc.

United States District Court, C.D. California

November 20, 2017


          Present: The Honorable CHRISTINA A. SNYDER, JUDGE.


         Proceedings: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (dkt. 43, filed October 5, 2017)


         On 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.

         On 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.

         On 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”).

         Having carefully considered the parties arguments, the Court finds and concludes as follows.


         The 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 overruled.[1]

         A. Plaintiff's Hiring and Promotion at CooperSurgical

         CooperSurgical, 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.

         Plaintiff's 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. at 21:6-9.

         Sales 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.

         Plaintiff 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.

         In or 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.[2]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.

         In 2011 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.[3]PSF at no. 13; Landig Depo. at 82:7-25. Once these territories were realigned, plaintiff's numbers dropped.[4]PSF at no. 14; Landig Depo. ¶ 80:14-82:6; Landig Decl. ¶ 7.

         In 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. ¶ 4(f).

         B. Plaintiff's Annual and Disciplinary Reviews 2012-2014

         On or 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.

         On or 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 occurring thereafter.

         The 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.

         One of the goals set forth in the September 2012 Performance Letter was that plaintiff make at least 95 percent of his quota.[5] 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.

         Around 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.

         Plaintiff 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.[6] 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. at 135:17-136:11.

         Plaintiff 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.

         Augustine 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. ¶ 20.

         Several 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.

         On or 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.

         On or 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”).[7] 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.[8] 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. 6.

         Plaintiff 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.[9] 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.

         On or 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.[10] 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.

         On or 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.

         C. Azarian's 2015 Promotion to Vice President and Subsequent Interactions with Plaintiff

         In 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.

         Azarian 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 140:25-141:10.

         Azarian, 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.

         On 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.

         Azarian 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.[11]DSUF at nos. 123-124; Azarian Decl. ¶ 11.

         Plaintiff 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.

         D. Plaintiff's April 2015 Plan and Review Meeting with Hickman and Azarian

         In 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.

         On or 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.

         On or 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.[12] PSF at no. 38; Landig Decl. ¶ 17.

         The 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. ¶ 15.

         Plaintiff 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.[13] 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.

         Based 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.

         The day 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.

         On or 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.

         E. Hickman's May 2015 Ride-Along with Plaintiff

         On or 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.

         On the 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.”[14] Landig Depo. 206:13-18; Landig Decl. ¶ 20.

         On the 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.

         Hickman 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 ...

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