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ROBIN v. ESPO ENG'G CORP.

October 16, 1998

MARTIN I. ROBIN, Plaintiff,
v.
ESPO ENGINEERING CORPORATION, Defendant.



The opinion of the court was delivered by: CASTILLO

MEMORANDUM OPINION AND ORDER

 Martin Robin filed this lawsuit against Espo Engineering claiming that but for his age, religion, and disability Espo would not have fired him, and therefore that Espo violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq. The case is now before the Court on Espo's motion for summary judgment which, as explained below, we reluctantly grant.

 FACTS

 In accordance with the summary judgment standards, we recite the evidence in the light most favorable to Robin, and draw all reasonable inferences in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Espo is a family-run company with approximately 250 employees engaged in the business of leasing temporary technical personnel. Eugene Esposito Sr. ("Esposito") is the CEO and majority owner of Espo; Eugene Esposito Jr. ("Eugene") holds the minority interest. In 1985, Esposito hired Robin, who is Jewish, as an account executive. Robin was 50 years old when hired, and had at least 18 years' experience in the temporary placement business.

 Initially, Robin's performance was more than satisfactory. In fact, he had the highest sales of any account executive at Espo in 1989 ($ 1,446,503.00), 1990 ($ 1,432,656.00) and 1992 ($ 1,389,197.00). But in 1992, Esposito refused to approve a bid lower than the regular 1.6 profit margin for one of Robin's clients, the Water Reclamation District, and Espo lost the contract. *fn1" As a result, Robin's 1993 sales fell precipitously to $ 763,727.00, putting him in last place among Espo's "experienced" account executives -- defined as salespeople who had been with Espo for three years or more. *fn2" In his 1993 performance review, Esposito commented on Robin's disappointing sales figures and instructed him to increase in-person calls, visit new leads, and limit his "lunches to once a week" (R. 17, Espo's 12M Statement App. 1, Robin Dep. Ex. 5.)

 In 1994 and 1995 Robin increased his sales to $ 1,039,468.00 and $ 1,076,920.00 respectively; however, these numbers were insufficient to lift him out of last place in sales among the experienced account executives. Figure 1, which follows on the next page, represents the sales information of Espo's experienced account executives from 1993 to 1995 for purposes of comparison. 1993 1994 1995 Hugh Dunbar $ 1,364,144 $ 1,978,056 $ 2,724,950 Tom Reicher $ 1,025,807 $ 1,411,621 $ 2,071,699 Kurt Mills *fn3" $ 1,468,418 Robin $ 763,727 $ 1,039,468 $ 1,076,920 Figure 1: Espo Senior Account Executives' Sales for 1993 to 1995

 In July 1995, Robin was diagnosed as having cancer. On July 28 he had surgery, and was off work for four weeks to recover. Robin began chemotherapy in September 1995. Once a week Robin would leave work early to receive treatment; this pattern continued for one year. Robin initially had bad reactions to the medicines he was receiving and felt horrible until the medications were adjusted.

 On December 29, 1995, Esposito met with Robin and said, "Marty, you're not the same man you were six months ago." Esposito suggested that Robin take a paid leave of absence until September 1, 1996, the anticipated completion of Robin's chemotherapy. Esposito drafted a proposed leave agreement which stated that Robin would receive full wages and benefits while on leave and that he would be "entitled to return to Espo Engineering as an account executive . . . provided you are 100% capable of performing your duties." (R. 21, Espo 12N Statement, Esposito Sr. Dep Ex. 9.) However, Robin would receive full commission only on his "old accounts" and either 50% commission or no commission on new business from his client list. At the end of the proposed leave, Esposito would decide whether Robin was 100% capable.

 Robin declined the leave offer, which he viewed as a thinly veiled attempt to terminate his employment. In a January 17, 1996 memorandum to Esposito, he declared, "I am presently fully qualified to continue my duties with Espo Engineering as a capable and productive Account Executive.'" (R. 17, Espo 12M Statement App. 2, Esposito Sr. Dep. Ex. 10.) The memo also reminded Esposito that Robin had generated sales of over $ 11 million during his eleven years with Espo.

 On January 29, 1996, Robin received his 1995 Annual Review. This performance evaluation revealed that Robin placed last out of all Espo's account executives, both junior and experienced, in five of six categories: number of in-person calls (143), number of customers visited (118), percentage of 100 list covered (39%), *fn4" number of new customers (3), and number of sales closed (44). (R. 17, Espo 12M Statement App. 2, Esposito Dep. Ex. 8.) The only category in which Robin did not rank last was sales volume; there he ranked fifth out of seven with sales worth $ 1,076,920.00. As Esposito noted, "the only sales persons [sic] you are out performing are two very Junior Account Executives with one year experience." (Id.) The evaluation included the following comments:

 
This is a very poor performance from a Senior Account Executive. You barely met the minimum requirement in a great market.
 
Account Executives at the Senior Account level increased their sales from 38% to 49% while your increase in sales was 3% in 1995, in addition Senior Account Executives out sold you by 200% to 350% in 1995. A Junior Account Executive [i.e. Kurt Mills] increased sales by 66% and out sold you by 50%.

 (Id.) The evaluation concluded with a "Solutions" section:

 
1. Make more in person [sic] sales calls to generate new business.
 
2. Cut lunches back to one per week.
 
3. Eliminate tardiness and be ready to start work at 8 A.M.
 
4. Stop having long conversations with fellow staff members that have nothing ...

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