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January 22, 1992



The opinion of the court was delivered by: MILTON I. SHADUR

Ernest Childress ("Childress") claims that Arcata Graphics Company ("Arcata") fired him because of his age (47 at the time of his dismissal), in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. Arcata now moves for a summary judgment in its favor under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, its motion is granted. *fn1"

 Arcata is a wholly owned subsidiary of Arcata Corporation. It sells printing services on behalf of separate but affiliated printing companies. Arcata's Book Group divides its sales force into eight regions, each run by a regional manager reporting to the corporate vice-president of book sales. Book Group headquarters are in Tennessee (D. 12(m) para. 4).

 Childress was born in 1943 (id. para. 1). He worked for Arcata's Book Group from 1973 to 1977 as a sales representative, then rejoined it from 1983 to 1990--first as a senior sales representative and then as an account executive, a different title that carried the same duties (id. paras. 2-3). *fn2" Childress worked in Arcata's Midwest Region in its Arlington Heights, Illinois sales office (id. para. 5). His duties included business development, the handling of existing customers' needs, setting and meeting sales targets, and coordinating the work of the customer service, pricing and credit departments (id. para. 6).

 Sales in Arcata's Midwest Region declined in the mid-to-late 1980s from about $ 50 million to about $ 37 million. In November 1987 Arcata named Paul Barrett ("Barrett") vice president and regional sales manager for the Midwest Region, instructing him "to motivate and build the [region's] sales force" with a special emphasis on new account development (id. para. 9). Childress reported to Barrett (id. para. 8).

 Friction between Barrett and Childress developed almost immediately. Childress told Barrett that he was assigned unpromising accounts and that his sales typically peaked late in the year (P. 12(n) para. 10, Childress Aff. para. 7). Nonetheless, between January 18 and March 31, 1988 Barrett sent Childress a series of five written warnings about his asserted failure to meet past sales goals, the urgent need to develop new accounts and the requirement (apparently imposed on Childress but not on other salesmen) that Childress report frequently and in writing on his progress in generating new business (id. para. 10; Barrett Aff. Ex. B). *fn3"

 In the fourth memo Barrett explicitly threatened Childress with termination if his performance did not improve (Barrett Aff. Ex. B at 6). *fn4" In the last memo Barrett emphasized that he expected Childress and other veteran sales representatives to meet high sales standards "considering the investment Arcata has made in you in terms of your salary, car, expense budget, insurance, etc." (id. at 7).

 Childress complied with Barrett's requests as to making new sales calls and filing reports (P. 12(n) para. 11; Childress Aff. para. 8; Barrett Aff. Ex. L at 3 para. 2). Even so, at the end of the first quarter of 1988 Barrett recommended to his superiors that they fire Childress, largely because he had failed to meet his sales plan for the three prior fiscal years (D. 12(m) para. 11). Childress had fallen short of his plan every year between 1984 and 1987, despite the fact in each of these years his plan was the lowest of any salesman in Arcata's Midwest Region (D. 12(m) para. 15). *fn5" At the same time that Barrett recommended Childress' dismissal, he also recommended that upper management fire another poor-performing salesman, 41-year-old Larry Fansler ("Fansler"). At that time management agreed to fire Fansler but not Childress (D. 12(m) para. 12).

 For 1988 Childress again had a relatively low sales plan: $ 2.056 million, second lowest in the region (id. para. 15). During that year Childress did develop a substantial amount of new business through Publications International, an existing Arcata account assigned to him when another salesperson left the firm (D. 12(m) para. 13). His performance against plan improved accordingly, to 153% in 1988 (Childress Aff. Ex. 7) and 102% in 1989 (Childress Aff. Ex. 2 at 34). In 1989 his plan again was modest: $ 2.97 million, third lowest among those who worked the entire year (id.).

 Barrett remained dissatisfied with Childress, however, particularly in the area of business development. From 1986 through 1989 Childress developed 11 new accounts--and excluding Publications International, those accounts brought in $ 626,141 in "gross less paper" sales, the standard yardstick for an account's value. Another of Childress' responsibilities was to generate sales quotes: bids to customers or potential customers for printing work. Childress made fewer sales quotes than his fellow salespeople, and his quotes had a lower dollar value. In 1987 only Fansler made fewer quotes than Childress, and it will be recalled that Fansler was fired for poor performance soon thereafter (D. 12(m) para. 19).

 Barrett transferred two accounts from Childress to other salespeople, who generated significantly more business from these accounts than Childress had done. In the case of the Meredith account, sales went from a little over $ 300,000 to over $ 2 million within three years (D. 12(m) para. 18; Barrett Aff. para. 17), though Childress says that rapid increase may be credited to the groundwork that he laid in the account's early years with Arcata (P. 12(n) para. 18); Childress Aff. para. 9). In the case of the Baldwin-Cooke account, within two years sales went from zero under Childress to $ 1.3 million under salesman Bill Bold (D. 12(m) para. 18; Barrett Aff. para. 17). Childress does not claim to have laid the groundwork for that increase.

 In November 1989 John K. Doyel ("Doyel"), then Arcata's vice president for book sales, sent Barrett and others a memorandum summarizing the results of an informal customer survey on sales responsiveness. Each salesperson was rated on a scale of 1 to 10. Childress ranked last among salesmen in his region, with a score of 2 compared to the average of 6. Next to Childress' name appeared the notation (evidently a summary of customers' comments) "always late; all rushes; no response" (P. 12(n) para. 21; Barrett Aff. Ex. B).

 Arcata cites various other deficiencies in Childress' performance, including a messy office and poorly kept files that made it difficult for others to service Childress' accounts in his absence (D. 12(m) para. 22; Barrett Aff. Ex. E). Childress denies the particulars of that charge, but he admits receiving Barrett's written reprimand on the subject in February 1988 (Childress Dep. 288). As for the other matters to which Arcata refers, they include complaints from at least four "potentially significant" customers about Childress' inattention to their needs (D. 12(m) para. 20); inappropriate behavior with female staff members, such as calling them "honeypie" and "sweetie" (id. para. 21); and failure to resolve invoicing discrepancies promptly (id.). Childress denies each of those charges too (Childress Aff. paras. 10-12). Because neither side has documented its position beyond the bare-bones statements of the Barrett affidavit ("these things happened") and the Childress affidavit ("no, they didn't"), this Court must grant Childress the benefit of the doubt and treat the charges as groundless (though that does not lead to the inference that they were a coverup for age-based bias against Childress).

 On June 27, 1989 Barrett and Childress met to discuss Childress' performance. In a memo to Childress the next day Barrett summarized his concerns, concluding, "Ernie, all of the danger signs are popping up again" (D. 12(m) para. 23; Barrett Aff. Ex. F). Three months later Barrett wrote to all salespersons in Childress' region, saying that "heavy emphasis will be placed on New Account Development" in performance evaluations (Barrett Aff. Ex. G).

 During 1989 Arcata recruited new sales representatives intensively (D. 12(m) para. 25), as part of a larger effort to shore up declining profits through increased sales activity (D. 12(m) paras. 27-28; Christopher Mumford Aff. para. 3). Through that recruiting effort, in October 1989 Barrett hired David Robb ("Robb," age 46) and transferred Paul Cibulka ("Cibulka," age 34) to serve as sales representatives in the Midwest, performing roughly the same duties as Childress (P. 12(m) para. 26; Barrett Aff. para. 26 and Exs. H & I). *fn6" Cibulka had been working for two years as Manager of Human Resources and Sales Training in Arcata's Kingsport, Tennessee headquarters. In early November 1989 Arcata (through its advertising agency) placed a recruiting advertisement for sales representatives to appear in the December 1989 and January and February 1990 issues of a trade magazine called Printing Impressions (D. 12(m) para. 40; Barbara Johnson Aff. para. 3 and Exs. A & B).

 Those expansion and recruitment activities evidently did little to stem Arcata's financial decline. Robert Swam, who had instigated the activities as Arcata's president, was fired in September 1989 (Mumford Aff. para. 4). Budget planning sessions conducted in November 1989 revealed that profits were still headed south (year-end data later showed a 75% loss in profits, id. paras. 5-6; P. 12(m) para. 27).

 After Swan's departure Edward Scarff, chairman and CEO of Arcata's parent company, assumed direct responsibility for Arcata. Under Scarff's leadership Arcata attempted to solve its problems through retrenchment rather than increased sales activity (Mumford Aff. paras. 4-6). All recruitment activity came to a halt in November 1989 (P. 12(m) para. 28; Doyel Aff. para. 5). About December 1 Arcata cancelled the Printing Impressions advertisement (D. 12(m) para. 40; Johnson Aff. Ex. A), but the cancellation deadline for the December issue had already passed. Hence the ad ran in December but not in January or February (D. 12(m) para. 40; Johnson Aff. para. 3(c)).

 Scarff also ordered a $ 5 million cut in the company's 1990 budget (D. 12(m) para. 28; Mumford Aff. para. 7). Arcata's Executive Vice President Bill Hepler ("Hepler") therefore ordered a reduction in force ("RIF") and told Doyel that book sales personnel would be subject to the RIF (D. 12(m) para. 28; Doyel Aff. para. 5). Before telling his regional sales managers about that order from Hepler, Doyel asked each of them to submit performance evaluations of all their sales personnel (D. 12(m) para. 29; Doyel Aff. para. 6). Barrett did not know of the impending RIF when he prepared his November 15, 1989 evaluations (Barrett Aff. para. 27), in which Childress ranked twelfth out of thirteen--above only David Robb, whom Barrett deemed "too new to evaluate" (Doyel Aff. Ex. A).

 Sometime thereafter Doyel orally informed Barrett of the impending RIF (Doyel Aff. Ex. B, para. 1). On December 4, 1989 Doyel sent Barrett a memo confirming that the RIF would occur and ordering him to recommend one sales representative to be fired. Doyel's memo laid out a schedule, targeting January 5, 1990 as the date of termination, and emphasized that "relative job performance is the sole criteria [sic] to be used" in deciding whom to fire (D. 12(m) para. 30; Doyel Aff. Ex. B). Employees were to be evaluated primarily on 1989 performance; five-year performance was to be considered where recent performance was unrepresentative; and for new hires Barrett was to make a subjective evaluation of potential performance based partly on prior work experience (Doyel Aff. Ex. B at 1). Doyel attached a computer printout of 5-year data for the six most experienced salespeople under Barrett's direction. That printout reflected that Childress was the ...

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