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Gross v. RadioShack Corp.

March 26, 2007

RONALD GROSS, PLAINTIFF,
v.
RADIOSHACK CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER

Plaintiff Ronald Gross ("Gross") brought this action alleging that defendant RadioShack Corporation ("RadioShack") terminated his employment based on his sex (male) and race (white) in violation of Title VII, 42 U.S.C. § 2000e, and based on his age (over 40) in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626. (Compl. ¶¶ 17, 18, 20, 21, 23, 24.) [Dkt 1.] This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. RadioShack has moved for summary judgment on all counts of the Complaint. [Dkt 30.] The parties have consented to the jurisdiction of a Magistrate Judge. [Dkt 53, 57, 58.] For the reasons set out below, RadioShack's motion for summary judgment is granted.

FACTUAL BACKGROUND*fn1

A. Gross's Employment with RadioShack

Gross is a white male who was hired by RadioShack in 1976 as a Manager Trainee in the Naperville, Illinois store. (Pl.'s LR Resp. ¶¶ 3, 5; Def.'s LR Resp. ¶ 1.) Gross was promoted to store manager the following year, and eventually to senior store manager. (Def.'s LR Resp. ¶ 1.)*fn2 During his employment at RadioShack, Gross also worked at a RadioShack store in the Charlestowne Mall, and subsequently, at a RadioShack store in Batavia. (Pl.'s LR Resp. ¶¶ 9, 56; Def.'s LR Resp. ¶ 21.) As a store manager, Gross was responsible for sales, controlling expenses, recruiting and training staff, and displaying merchandise. (Pl.'s LR Resp. ¶ 7.) Gross was 49 years old when his employment was terminated in January 2004. (Pl.'s LR Resp. ¶¶ 3, 5.)

Until 2003, Gross had an overall positive work record. He was promoted on numerous occasions and received numerous RadioShack awards, including "Manager of the month," "Top sales gain," "Best store appearance," and "Leader's Club." (Def.'s LR Resp. ¶ 2; Pl.'s LR Ex. A, Gross Aff. ¶ 3.) Gross also served as a team leader for approximately 10 years, a position which required him to provide advice and direction to other store managers, as well as relay various facts and figures to the district office. (Def.'s LR Resp. ¶ 3; Pl.'s LR Resp. ¶ 57; Def.'s LR Ex. 2, Gross Dep. at 153-54; Gross Aff. ¶ 15.) Although he was placed on RadioShack's "Watch, Concern, Notice" counseling procedure in March 2002, Gross's performance improved and he did not advance to the second step of the procedure at that time. (Pl.'s LR Resp. ¶ 26; Def.'s LR Ex. 3, Bates No. 000045.)*fn3 In fact, despite being placed on "Watch" in the beginning of 2002, Gross was subsequently awarded the maximum number of stock options for his overall performance that year, which ranked in the upper third of the nation. (Def.'s LR Resp. ¶ 5.)

In around September 2002, Gross was granted a request to transfer from the Batavia store to the Aurora store. (Pl.'s LR Resp. ¶ 9; Def.'s LR Resp. ¶ 21.) Gross requested the transfer for the primary reason that his mother was ill and the Aurora store was closer to her. (Pl.'s LR Resp. ¶ 10.) Gross also requested the transfer because he was concerned about competition from a Best Buy store and a Circuit City store that were located down the street from the Batavia store. (Pl.'s LR Resp. ¶ 10; Def.'s LR Resp. ¶ 21.)

At the time of the transfer, Richard de la Hunt, who was Gross's district manager at the time, presented Gross with a memorandum setting forth a list of expectations Gross would have to meet as manager of the Aurora store. (Def.'s LR Reply ¶ 11; Def.'s LR Ex. 3, Bates No. 000060; Gross Dep. at 30.)*fn4 The memorandum advised Gross that his personal sales must not fall below $17,000 per month; that leaving work early and not placing certain advertisement inserts would not be tolerated; that he must take the store to a $30 ticket average; that he must achieve a certain satellite hit rate; that he must maintain a "wireless hit rate" range of 25-32 and a "401 status" for his store;*fn5 and that he must hold Saturday morning meetings consistently with his staff. (Pl.'s LR Resp. ¶ 12; Def.'s LR Ex. 3, Bates Nos. 000060, 000061.) The memorandum warned Gross that if he "fail[ed] to achieve these expectations, [he would] be put immediately on the [W]atch step." (Pl.'s LR Resp. ¶ 13; Def.'s LR Ex. 3, Bates No. 000061.) Gross read and signed the memorandum, agreeing to the above expectations. (Pl.'s LR Resp. ¶ 14; Def.'s LR Ex. 3, Bates No. 000061; Gross Dep. at 31.) During his first four months at the Aurora store, Gross realized sales gains of 19%. (Def.'s LR Resp. ¶ 4; Gross Aff. ¶ 6.)

B. Gross's Performance in 2003

In January 2003, approximately four or five months after Gross transferred to the Aurora store, Stephanie Potter replaced de la Hunt as Gross's district manager. (Pl.'s LR Resp. ¶ 15.) In a store visit report dated January 30, 2003, Potter noted that Gross's performance for January 2003 was below expectations, as his store did not demonstrate a sales gain that month. (Pl.'s LR Resp. ¶ 17.) (Monthly sales records are calculated by comparing a store's current monthly sales with the store's monthly sales of the prior year to determine if there has been a gain or loss.) (Def.'s LR Resp. ¶ 7.) Gross acknowledged that fact. (Pl.'s LR Resp. ¶ 17.)

In February 2003, Gross became aware that the anchor store in the strip mall in which his store was located was going to close down. (Def.'s LR Resp. ¶ 6.) The anchor store, True Value Hardware, had been at the Aurora strip mall for more than 30 years. (Def.'s LR Resp. ¶ 6.) Gross felt that the closing of the anchor store would have an impact on customer and walk-in traffic at his store, although there was also a Wal-Mart at the far end of the strip mall. (Def.'s LR Resp. ¶ 6; Def.'s Reply Ex. A, Gross Dep. at 165-66.)*fn6 On February 23, 2003, Gross wrote an e-mail to Potter expressing his concern regarding the closing of the True Value Hardware store and requesting a transfer back to the Batavia store. (Pl.'s LR Resp. ¶ 50; Def.'s LR Resp. ¶ 9.) Potter never acknowledged Gross's request and promoted David Bawuah, a black male, to the Batavia store position instead. (Def.'s LR Resp. ¶ 9.) Potter later could not recall Bawuah's work history or the criteria used to hire Bawuah, or his performance at the Batavia store. (Def.'s LR Resp. ¶ 25.)*fn7 She also could not recall whether she even considered Gross for the position at the Batavia store. (Def.'s LR Resp. ¶ 25; Pl.'s LR Ex. G, Potter Dep. at 58.)*fn8

Upon learning that the position had been filled by Bawuah, Gross wrote to Bob Martinjak, RadioShack's Mid-West Division Vice-President, expressing his concern about the situation. (Def.'s LR Resp. ¶ 10.) The memorandum did not mention age, race or sex discrimination as a reason for the denial of the transfer, but referred to a conflict between Gross and his former regional manager, Jim Bradley, which Gross claims began 17 years earlier. (Def.'s LR Resp. ¶ 10; Def.'s Reply Ex. G.) After reviewing Gross's e-mail, Martinjak sent an e-mail to Francesca Spinelli in Human Resources stating: "One suggestion I might offer is letting [Gross] know up front that he is not a top performer with [RadioShack], he is just someone who has hung around for a long time." (Def.'s LR Resp. ¶ 11.) Gross never received a substantive response regarding his e-mail. (Def.'s LR Resp. ¶ 11.)

In a store visit report dated February 26, 2003, Potter noted that sales from Gross's store were down $1,200, a decrease of 3.85%. (Pl.'s LR Resp. ¶ 18; Def.'s LR Ex. 3, Bates No. 000063.) Gross acknowledged that that was true. (Pl.'s LR Resp. ¶ 18; Gross Dep. at 51.) The report further noted that his store's wireless and satellite hit rates were below expectation or unacceptable, and that several of Gross's employees needed to complete their certifications, among other things. (Pl.'s LR Resp. ¶¶ 18, 19; Def.'s LR Ex. 3, Bates No. 000063; Gross Dep. at 51-53.)

In a store visit report dated April 23, 2003, Potter noted several problems, including that many of the phones in Gross's store needed batteries or chargers, that the repair log needed to be updated, that the parts per ticket was $2 below average, that no one in Gross's store was above the district average for wireless index and battery add-on, that Gross needed to have one-on-one and other meetings with his sales associates, and that his store was losing units in satellite. (Pl.'s LR Resp. ¶ 20; Def.'s LR Ex. 3, Bates No. 000062.)

A report dated June 17, 2003 reflected a meeting between Gross and Potter at the district office. (Pl.'s LR Resp. ¶ 21; Def.'s LR Ex. 3, Bates No. 000055.) On the report, Potter set various targets, including training and certifying associates, properly pricing items, and achieving sales goals with respect to wireless and other products. (Pl.'s LR Resp. ¶ 21.) The report allotted Gross 80 payroll hours during selling time, which Gross testified was "standard." (Pl.'s LR Resp. ¶ 21; Gross Dep. at 61.) In a store visit report three days later, Potter documented the fact that one of Gross's sales associates sold a phone without all of the correct paperwork and that employee certifications still needed to be completed. (Pl.'s LR Resp. ¶ 22; Def.'s LR Ex. 3, Bates No. 000054.)

In July 2003, Gross's numbers at his store rebounded significantly, including achieving a ticket average $2.17 above the district average and a gross profit turn of $943, or about 10% of the district total. (Def.'s LR Resp. ¶ 13; Gross Aff. ¶ 14.) Despite that fact, Gross's store again did not record a sales gain that month compared to the previous year. (Def.'s LR Resp. ¶ 13; Gross Aff. ¶ 14.)

In a store visit report dated August 15, 2003, Potter notified Gross that he was being placed on "Watch" (the first step in RadioShack's formal counseling process) for unsatisfactory job performance. (Pl.'s LR Resp. ¶ 23; Def.'s LR Ex. 3, Bates No. 000036.) Potter's report noted that Gross "ranked at the bottom of [his] district and 220/221 in the region on the performance rankings year to date." (Pl.'s LR Resp. ¶ 23; Def.'s LR Ex. 3, Bates No. 000036.) Potter further noted that his store's sales were down 21%, and profits were down 10%. (Pl.'s LR Resp. ¶ 23; Def.'s LR Ex. 3, Bates No. 000036.) Potter stated that she expected Gross's store to meet the district average in sales gains and profit turns within the next month. (Pl.'s LR Resp. ¶¶ 23, 24; Def.'s LR Ex. 3, Bates No. 000036.) She set out a list of tasks for Gross to complete to meet those goals, including holding weekly meetings, completing one-on-one employee evaluations and faxing signed copies to the district office on a weekly basis, ensuring that all employees were on track for certifications, using the recommended scheduler to improve customer service, arriving at the store one hour before opening time to perform daily tasks, obtaining 3.5 tickets per employee each hour, submitting inventory count sheets on a weekly basis, performing an "over/short inquiry" at the start and end of each day to help manage shortages, and completing daily paperwork. (Pl.'s LR Resp. ¶ 24; Def.'s LR Ex. 3, Bates No. 000036.) At the end of the report, Potter stated that she knew Gross was "capable of achieving great success" and hoped he would "make the changes necessary to put [his] performance back on track." (Pl.'s LR Resp. ¶ 24; Def.'s LR Ex. 3, Bates No. 000036.) Gross agreed that many of the requirements listed were reasonable but signed the report stating "acknowledgment of receipt only." (Pl.'s LR Resp. ¶¶ 24, 25; Def.'s LR Ex. 3, Bates No. 000036.) That month, Gross wrote to Chris Frank, a Regional Director with RadioShack, and made a formal complaint about Potter and about the adverse effect the closing of the True Value store was having on his store's sales gains. (Def.'s LR Resp. ¶ 14.) Gross did not inform Frank that he believed any of Potter's actions were based on his age, race, or sex. (Def.'s LR Resp. ¶ 14; Gross Aff., Ex. 3.)

In a store visit report dated November 5, 2003, Potter noted that Gross's store had a year-to-date sales loss of 20.2% and a year-to-date profit loss of $21,788. (Pl.'s LR Resp. ¶ 27.) Potter notified Gross that day via memorandum that he was being moved from "Watch" to "Concern" on the formal counseling procedure. (Pl.'s LR Resp. ¶ 28; Def.'s LR Ex. 3, Bates No. 000037.) In the memorandum, Potter set forth a list of tasks for Gross to perform over the next four weeks. (Pl.'s LR Resp. ¶ 29.) Those tasks included helping 20 customers per day, requiring associates to complete certain training programs, conducting weekly meetings with associates, requiring employees to attend every district training meeting, maintaining a store ticket average of $29, completing weekly count sheets and goal/activity cards for associates and faxing them to the district office on a weekly basis, and performing drawer counts three times per day and faxing them to the district office daily. (Pl.'s LR Resp. ¶ 29; Def.'s LR Ex. 3, Bates No. 000037.) Potter warned Gross that if he failed to execute the listed requirements in 30 days, he would be put on "Notice," the last step of the counseling procedure. (Pl.'s LR Resp. ¶ 30.)

Gross received another memorandum from Potter dated December 10, 2003. (Pl.'s LR Resp. ¶ 31.) That memo recapped the items discussed during their last meeting, and noted that several of the tasks had not been met. (Pl.'s LR Resp. ¶ 31; Def.'s LR Ex. 3, Bates No. 000027.) Potter stated that several associates had not completed the requisite training programs, that she had never received associate goal/activity cards or weekly count sheets which were to have been faxed to the district office on a weekly basis, that the store ticket average failed to meet the $29 ticket average required, and that she did not always receive his daily drawer counts. (Pl.'s LR Resp. ¶ 31; Def.'s LR Ex. 3, Bates No. 000027.) Gross asserts that he did prepare the associate goal/activity cards and weekly count sheets, but delivered rather than faxed them to the district office. (Pl.'s LR Resp. ¶ 32; Gross Dep. at 121.) He also asserts that he submitted daily drawer counts. (Pl.'s LR Resp. ¶ 32.) Gross does not dispute that his associates failed to complete their certifications, but states that he did not have complete control over that requirement because it required the cooperation of the associates. (Pl.'s LR Resp. ¶ 32.) Gross admitted, however, that it was his responsibility as manager to ensure that the associates' certifications were completed. (Gross Dep. at 81.) Gross also does not dispute that the store's ticket average was less than the $29 required. (Pl.'s LR Resp. ¶ 32.) Because Gross failed to complete all of the required tasks and produce profitable sales, Potter moved him from "Concern" to "Notice" on the formal counseling procedure. (Pl.'s LR Resp. ¶ 31; Def.'s LR Ex. 3, Bates No. 000027.) She stated that a failure to create profitable sales growth for the month of December would result in his "removement from management" at RadioShack. (Pl.'s LR Resp. ¶ 31; Def.'s LR Ex. 3, Bates No. 000027.)

C. Gross's Discharge

In December 2003, Gross's store achieved a significant profit turnaround and ranked 8 out of 24 in the district. (Pl.'s LR Resp. ¶ 33; Def.'s LR Reply ¶ 33; Def.'s LR Resp. ¶ 23.) However, the store again failed to reflect a sales gain that month. (Pl.'s LR Resp. ¶ 33.) In fact, the store suffered a sales loss of 16.4%, compared to the district's average loss of 9.4% for the month. (Def.'s LR Resp. ¶ 23; Def.'s LR Reply ¶ 33; Pl.'s LR Ex. G, Bates No. 000364.) Thus, for the year 2003, Gross's store lacked profitable sales growth every month, and fell below the district average in 11 of the 12 months. (Pl.'s LR Resp. ¶ 33; Def.'s LR Resp. ¶ 23; Pl.'s LR Ex. G, Bates Nos. 000353-364.)

On January 4, 2004, Gross was discharged from his employment. (Pl.'s LR Resp. ¶ 34; Def.'s LR Resp. ¶ 2.) Potter recommended the discharge, and Frank and Martinjak approved it. (Pl.'s LR Resp. ¶ 34; Def.'s LR Resp. ¶ 11; Potter Dep. at 20.) Gross was 49 years old at the time of the discharge. (Pl.'s LR Resp. ¶¶ 3, 5, 34; Def.'s LR Resp. ¶ 1.) Gross asserts that Potter specifically told him that demotion was not an option. (Pl.'s LR Resp. ¶ 45.) He was replaced by Matt Savage, a white male in his mid-20s. (Pl.'s LR Resp. ¶ 44.) At her deposition, Potter testified that she could not recall any conversation with Frank or Martinjak regarding Gross's discharge, and had to review certain documents before she could explain why Gross was discharged. (Def.'s LR Resp. ¶¶ 26, 27; Potter Dep. at 18-19, 20, 22, 25, 86-88.) She ultimately explained that her requirement that Gross post a sales gain in December and recommendation that Gross be discharged had "a lot [] to do with the day-to-day activities ...


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