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GREANIAS v. SEARS

August 28, 1991

GEORGE GREANIAS, Plaintiff,
v.
SEARS, ROEBUCK and CO., Defendant



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Pro se litigant George Greanias ("Greanias") sues his former employer Sears, Roebuck and Co. ("Sears"), charging that Sears terminated his employment in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634. Sears now moves for dismissal under Fed.R.Civ.P. ("Rule") 12(b)(6) *fn1" or alternatively for summary judgment under Rule 56. According to Rule 12(b):

 
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . .

 Because both parties have attached various exhibits and depositions to their briefs (and more importantly, because Greanias' Complaint -- though it was self-prepared -- is certainly legally sufficient on its face *fn2" ), Sears' motion will be treated as a motion for summary judgment. For the reasons stated in this memorandum opinion and order, that motion is granted and this action is dismissed.

 Facts3

 Greanias was born on May 5, 1929. He received a Bachelor of Arts degree from James Milliken University and then the postgraduate degree of Masters in Business Administration from the University of Pennsylvania's Wharton School of Business. Greanias also took several computer courses at the New York University Graduate School of Business.

 From 1955 to 1961 Greanias worked for Shell Oil Company administering credit card accounts; from 1962 to 1966 he was a market analyst for Campbell-Mithun Advertising Agency; from 1966 to 1968 he worked as a researcher for IBM; from 1968 to 1970 he served as a research director for Allen, Anderson, Niefeld & Paley Advertising Agency; from 1970 to 1972 he worked at Clinton E. Frank, Inc., supervising all advertising for Motorola; then he returned to Campbell-Mithun from 1972 to 1975; and thereafter he held two different jobs in marketing research for about six months each and worked at Marketing Information Services from 1976 to 1977. Sears hired Greanias on August 8, 1977 as a research analyst in its advertising department, an entry-level position. At that time he was 48 years old. *fn4"

 As part of Sears' initial screening process for hiring, Greanias took a battery of tests on which he performed extremely well. This was the conclusion reached under the category "OVERALL MENTAL ABILITY AND DECISION MAKING" (P. Ex. 25(a) *fn5" ):

 
Mr. Greanias's overall mental ability is highly superior compared to other Sears executives. He can be expected to handle the intellectual aspects of any executive-level assignment with great facility, and possesses the exceptional mental flexibility necessary to deal effectively with extremely complex and abstract material.

 His quantitative skills were rated "above the average for the Sears executive population" (id.) and his level of verbal skill was described as "exceptionally high" (id.). Other comments were equally glowing and complimentary, such as: "profit oriented" (id.) and (as part of the same evaluation, but labeled by Greanias as P. Ex. 25(b)) "usually serious and careful but is capable of flexibility," "friendly and outgoing," "readily accepting a leadership role," "extremely fair-minded and tolerant toward others and will cooperate wholeheartedly in team efforts," "extremely objective and dispassionate and does not become emotionally involved in situations," "extremely optimistic" and "very confident under almost any circumstances." On the potentially negative side was only this (id.):

 
A very agreeable person, he will go out of his way to avoid friction or animosity. He will try to get along with everyone and may at times back down on his own opinions and ideas in order to avoid confrontation. He is likely to have difficulty disciplining subordinates.

 Although Greanias' title changed from research analyst to marketing analyst to merchandising analyst during his 8 1/2 years at Sears, the nature of the work remained the same and all of the positions were entry-level positions. Hierarchy in Sears' management began at one of the entry-level positions and progressed to project director and then to area or section manager and finally to department manager, and the normal course of promotions would occur in that same order. Greanias was never promoted at all.

 Greanias began his employment at Sears as a research analyst in the advertising department known as Department 732A. He described his work this way (Greanias Dep. 63):

 
Well, we studied the effects of 15- and 30-second commercials and the length of copy and print advertisements and whether the eye movement of people as they read magazine or newspaper ads -- in some instances people used cyclojobinometers to measure fingertip response to stimuli and such, that kind of thing. That's mostly gadgetry, what people recalled from advertisments [sic], either print or television, what they remembered, what they liked, what they didn't like, things like that.

 During his years in Department 732A Greanias received annual performance evaluations from his superiors (P. Exs. 6A, 7A, 9A) and was given these overall ratings: "Competent" in 1978, "Very Good" in 1979 and "Very Good" in 1980. *fn6"

 About 1980 Department 732A was absorbed by the merchandising research department known as Department 720MR. *fn7" Donald Hughes ("Hughes") was the departmental manager. Greanias described the main difference between the two departments as "a difference in philosophy" (Greanias Dep. 62-63):

 
When we were in 732, Mr. Scidner [sic -- should be "Seidner," then Greanias' departmental supervisor] was a person who wanted to keep expanding the frontiers of advertising research, because it was his paramount interest. And 720MR, it was only part of a bigger whole, so it wasn't as all encompassing. And when we got to 720MR, it -- well, for economic reasons, too, the pushing the frontiers kind of thing came to a screeching halt, because they had to use the money for other things. But in terms of internal operating, I think there were more rules and procedures in the bigger department, understandably, then [sic] there would be in a smaller department.

 Department 720MR provided in-house marketing services to various merchandising departments of clients under the Sears corporate umbrella, such as Coldwell Banker and Sears Optical.

 In his April 1981 performance evaluation (P. Ex. 9E) Greanias' section manager John Wiese ("Wiese") rated Greanias "Very Good" overall. Wiese also said:

 Below that statement Hughes wrote "Staff school is currently on 'hold.'" *fn8" In addition, below Greanias' own statement in that same evaluation that he would like to attend Staff School to broaden his knowledge of the company and to identify possible career goals, Hughes wrote, "Suggest George see Ron Keller about possibilities outside of D/720R."

 In 1982 Hughes began to review Greanias' performance regularly (Hughes Aff. para. 4). In January 1982 Hughes wrote Greanias a corrective memorandum--a document issued according to the procedures of a Sears policy on correction of employee deficiencies (see D. Ex. M). Hughes expressed several concerns (this is a paraphrase of part of D. Ex. I):

 
-- a "disturbing" pattern of absences due to illness over the past three years that appeared tied to weekends and rarely occurred on a Wednesday;
 
-- frequent and prolonged personal telephone conversations;
 
-- time spent in the department library reading irrelevant publications;
 
-- excessive absences and irregular hours of attendance;
 
-- low productivity because of lack of initiative in getting assignments in a division with "falling budgets and surplus personnel."

 Hughes concluded (id., quoted verbatim):

 
Your first priority is to correct the situation described above. In addition I think you should give some thought to your future. I question whether your choice of research as a career was a wise one based upon your record with Sears and the industry prior to joining Department 732A. You may wish to redirect your efforts.

 In February 1982 Wiese rated Greanias "Good" overall in his performance evaluation (D. Ex. E at e)--a dropdown of one level from the "Very Good" ratings that Greanias had received from 1979 through 1981.

 From April 1982 to 1985 Greanias was assigned to the Sears T.V. Commercial Test Panel Research Program ("Test Panel"). Greanias was responsible for analyzing the performance of a particular commercial and for preparing a report that provided conclusions and recommendations in order to determine the commercial's level of performance for the target audiences. Greanias' findings were drawn from computer-generated data that analyzed viewers' perceptions.

 In May 1982 section manager Jim Rys ("Rys") repeated Greanias' February overall rating of "Good." Among Rys' comments were these (D. Ex. E at b):

 
George's first draft of accountabilities was nebulous. He didn't understand what was expected of him. Now he does. His work is clearly defined, more structured, and easily monitored and assessed. He claims that it is more absorbing and rewarding too.
 
George has listed everything he did during 1981. I judge the Black Consumer Campaign Study as his most significant accomplishment. It uncovered a talent for writing which is being nurtured on the TV Commercial Test Panel. He has been disciplined in the past year, and is a more critical and careful worker as a result.
 
George's work habits over the past year have been severely criticized, and rightly so. Most aggravating to everyone has been his irregular attendance and his inability to conclude or start anything without considerable cajolery. The work of others is disrupted because they must be involved to head off disaster. Since starting work on the TV Panel at the beginning of April his attitude and productivity have improved dramatically. Obviously the disciplined environment helped.

 On that evaluation Hughes merely wrote, in response to Greanias' stated goal of promotion to Project Director (id.):

 
George has a long way to go in achieving departmental standards in current assignments. Project Director is not in sight.

 In 1983 Rys rated Greanias as "Fair" overall -- a continuation of Greanias' deteriorating evaluations *fn9" -- and commented (D. Ex. F at b):

 
He needs to sharpen his analytical abilities on the panel, and to assist Project Directors whenever he can in order to achieve greater responsibility. His discretion is now quite limited.
 
Although George is more fully occupied and more sensitive to deadlines than he once was, what he has turned in has been persistently substandard. He needs to spend more of his workday doing his job better and less of it on other things.
 
George's work on the TV Panel exposed technical shortcomings and carelessness not evident before. New procedures should mitigate these failings. In addition, George has promised to curtail actions or family and personal interests during working hours. In the past these preoccupations have disrupted others and hurt the division's morale. Last year George's "some improvement necessary" performance deteriorated further. He is resolved to begin turning it around now.

 For his part, Hughes wrote a memorandum to Greanias simultaneously with the 1983 review, placing Greanias on 90-day probation. After he commented (1) that pursuant to the 1982 corrective letter Greanias had discontinued the habit of taking sick leave in conjunction with weekends and (2) that Rys said Greanias' work habits had improved, Hughes ...


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