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TIBBETTS v. RADIOSHACK CORPORATION

September 30, 2004.

DAVID D. TIBBETTS, Plaintiff,
v.
RADIOSHACK CORPORATION, Defendant.



The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge

MEMORANDUM OPINION AND ORDER

Until 2002, Plaintiff David Tibbetts worked for RadioShack Corporation as a Senior Store Manager in Evanston, Illinois. Tibbetts had a poor performance record in that job, and in July 2002, he was demoted to the title of store manager. Later that year, RadioShack determined to move the store to a new location in Evanston, and Tibbetts's supervisor decided to replace him as manager. Tibbetts lost his job in November 2002.

In this lawsuit, Tibbetts claims the real reason for his discharge was his participation in a nationwide class action, filed just two weeks earlier, challenging RadioShack's pay practices under the Fair Labor Standards Act ("FLSA"). See Perez v. RadioShack Corp., No. 02 C 7884, 2003 WL 21372467 (N.D. Ill. June 13, 2003). He also argues that his employment relationship with RadioShack was contractual, and that his November 2002 termination constituted a contract breach. RadioShack has moved for summary judgment, arguing there are no disputes of fact concerning his performance, that Tibbetts's role in the Perez case had nothing to do with his discharge, and that Tibbetts was an "at will" employee of the company, with no contractual protections. For the reasons explained here, RadioShack's motion for summary judgment is granted. FACTS*fn1

  The Parties

  Defendant RadioShack is a Delaware corporation with its headquarters in Fort Worth, Texas which employs more than 30,000 persons and does business in thousands of retail stores throughout the country. (Def.'s 56.1 ¶ 2; Pl.'s 56.1 ¶ 3.) From 1989 until 2002, Plaintiff David D. Tibbetts was employed by RadioShack as a store manager. (Def.'s 56.1 ¶ 1.) In 1997, Tibbetts was assigned to store number 016498 in Evanston, Illinois, as senior store manager. (Id.) In early 2002, RadioShack initiated the process of moving store 016498 to a new location in Evanston. (Id. ¶ 7.)*fn2 On November 14, 2002, Tibbetts was terminated effective the following day. (Id. ¶ 8.)

  Tibbetts's Performance History

  David Tibbetts received numerous performance awards and accomplishments during his 13-year tenure, including five "Manager of the Month" awards; 10 "Manager Personal Sales Dominator" awards, and several other awards for his personal sales performance. (Pl.'s 56.1 ¶ 63; Def.'s Response ¶ 63.) On January 12, 2002, Tibbetts's then-District Sales Manager sent Tibbetts a thank-you e-mail congratulating him on his personal sales performance. (Pl.'s 56.1 ¶ 64.) As of August of that year, Tibbetts was ranked 2 out of 224 sales managers in the Chicago Region for his personal sales. (Id. ¶ 68.) Tibbetts's personal sales total for the year prior to October 30, 2002 was the highest of all 27 store managers in his district. (Id. ¶ 70.)

  Also throughout his career with RadioShack, however, Tibbetts had recurring problems with store appearance and with employee retention and development. (Id. ¶ 73.) Tibbetts was warned repeatedly that he "would be disciplined for a variety of things including poor store appearance and/or poor people readiness." (Def.'s 56.1 ¶ 9.)*fn3 In the two years before his termination, Plaintiff was supervised by one Regional Sales Manager (James Bradley) and three Divisional Vice Presidents (Michael Crist, Charles Morrow, and Michael Lohse). (Pl.'s 56.1 ¶ 54.) Prior to Mr. Lohse's assuming the position of District Manager for District 0568, other managers and loss prevention specialists had prepared reports documenting their review of Tibbetts's performance as manager. (Def.'s 56.1 ¶ 11.) For example, on February 8, 2001, Loss Prevention Specialist Keith Abraham visited the store Tibbetts managed and prepared a report in which he noted, "STORE APPEARANCE DISASTER," and provided direction on matters that Tibbetts was expected to correct. (Id. ¶ 12.)

  RadioShack District Sales Managers were expected to conduct store visits and to assess the store manager's performance with respect to "people readiness" and "store readiness." (Pl.'s 56.1 ¶ 79.) In a store visit report for a September 8, 2001 visit, District Manager Charles Morrow noted that since he (Morrow) had arrived in the district, Tibbetts's store "has always been a disaster area with little improvement after several visits from [Morrow] and [Regional Manager] Mr. Bradley." (9/08/01 Store Visit Report, Ex. 9 to Tibbetts's Dep. [Ex. 38 to Def.'s 56.1].) The report called the store's backroom the "worst [Morrow] has ever seen," and noted that employees hired by Morrow to work for Tibbetts had all quit. (Id.)*fn4 On a scale of 1-5, with 5 being the best, Morrow gave Tibbetts's store a grade of 0 on sales readiness. On people readiness, Morrow graded the store a D on a standard A through F grading scale. (Def.'s 56.1 ¶ 14.) In a March 29 e-mail message reviewing the March 14, 2002 store visits, James Bradley detailed numerous problems:
Dave [Tibbetts] continues to run off associates and for 2 years has had staffing problems. He is waiting for the store to relo[cate] hoping it will solve his problems and has given up on this store. The office management is horrible. We [Bradley and Morrow] have discussed what you [Morrow] need to do here but you are not going to be able to unless your bullpen is stronger.
(3/29/02 E-mail from Bradley to Morrow concerning store visits, Ex. 20 to Def.'s 56.1.) Plaintiff admits that in his March 14, 2002 report, Morrow noted that he warned Tibbetts to "fix the problem or be replaced." (Def.'s 56.1 ¶ 16.)

  After a June 27, 2002 follow-up store visit, Morrow prepared a report again noting Tibbetts's performance deficiencies, including Tibbetts's failure to train a sales associate hired six months earlier, customer complaints, and Tibbetts's attitude toward customers. Morrow's report, which Tibbetts signed, warned that if the store were not "sales ready" and his staff not trained, Tibbetts "will no longer be a manager for RadioShack." The report noted that Tibbetts had been given one and a half years to address these issues, concluded, "You are NOT doing job," and announced, "Dave, this is your last warning! I expect compliance immediately with your job requirements." (Id. ¶ 17.) In this report, Morrow gave Tibbetts's store a grade of 1 for sales readiness and a grade of D for people readiness. (Id. ¶ 18.) Plaintiff admits receiving this report, though he notes that Morrow never did terminate him. (Pl.'s Response ¶ 60.) He also acknowledges that the average scores for stores in his district in the twelve months prior to September 2002 was 2.4 for sales readiness and C for people readiness, compared with his own average scores of 1.8 and D. (Pl.'s 56.1 ¶¶ 81, 82.) Plaintiff contends that five of the other 19 sales managers in his district received similarly low scores, but Defendant notes that three of those managers had been in their stores for less than 12 months at the time of the report at issue. (Pl.'s 56.1 ¶¶ 83-85; Def.'s Response ¶¶ 83-85.)

  On July 9, 2002, Tibbetts was demoted from Senior Manager to regular store manager status. (Def.'s 56.1 ¶ 19.) Such a demotion decision required approval of RadioShack's Divisional Vice President. (Pl.'s 56.1 ¶¶ 43, 55.) Citing only his own affidavit, Plaintiff asserts that this happened "only because of decreased store sales resulting from reduced traffic flow in the strip mall," including the loss of such stores as Builder's Square and Trak Auto. (Pl.'s Response ¶ 63; Pl.'s 56.1 ¶ 32.) He notes, further, that 14 of the 26 stores in his district suffered losses as of September 30, 2002. (Pl.'s 56.1 ¶ 123.)

  Michael Lohse's Supervision of Tibbetts

  On July 13, 2002, Michael Lohse was promoted to district manager for District 0568. (Def.'s 56.1. ¶ 21.) He visited Tibbetts's store on July 31, 2002, and prepared a report of that visit, signed by Tibbetts, in which he noted that the store "does not look sales ready," and that he (Lohse) would assist Tibbetts with recruiting. (Id. ¶¶ 22-23.) Plaintiff notes that recruiting was Lohse's own responsibility, not Tibbetts's, and that as of July 31, 2002, there were two full-time sales associates working in the store, the number that had been allocated by Charles Morrow. (Pl.'s Response ¶ 67.) Lohse gave Tibbetts's store a sales readiness grade of 2 and a people readiness grade of C. (Def.'s 56.1 ¶ 24.) Lohse visited the store again on August 10, 2002. In the report he prepared, which Tibbetts signed, Lohse detailed deficiencies in recruiting, in sales readiness, and in Tibbetts's negative attitude. He warned:
I will review this report on my next visit on 08/20. This all needs to be complete 100% for me to consider you running the NEW store. Running the new store is no guarantee for you to run it. It takes a manager that has a perfect looking store, NO negativity, teaches, coaches, and train their employees to open and run a NEW store. Completion of these tasks again will be used to consider WHO runs the Evanston Store.
(Id. ¶ 25.) Tibbetts admits the report includes these criticisms, explaining simply that his negative attitude was a function of Tibbetts's mother's declining health. (Pl.'s Response ¶ 69.) A "secret shopper" who visited Tibbetts's store on August 23, 2002, rated the store at 5 out of a possible 10. (Def.'s 56.1 ¶ 26.) On August 30, 2002, Tibbetts failed to attend a "Rewards Day Conference Call," resulting in Lohse's issuing a disciplinary report. (Id. ¶ 27.)

  Lohse visited Tibbetts's store again on October 1, 2002. A report of that date identifies staffing issues and other deficiencies, including items that had been identified on August 10 but were not yet accomplished. The report referred specifically to a customer complaint received the day Tibbetts returned from vacation and warned that further complaints concerning indifference or poor attitude would result in discipline, possibly including termination. (Id. ¶ 28.) Though he testified that the report "looks vaguely familiar" and that he did "remember some of the text of this," (Tibbetts Dep., Ex. 38 to Def.'s 56.1, at 138), Tibbetts now denies receiving this report and notes that it lacks notations that ordinarily appear at the bottom of a RadioShack store ...


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