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William Gliva v. Piedmont Plastics

February 23, 2012


The opinion of the court was delivered by: Marvin E. Aspen, District Judge:


Plaintiff William Gliva is a former employee of Defendant Piedmont Plastics, Inc. ("PPI"). Gliva claims that PPI violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq, when it terminated Gliva from his position as a Films Specialist.*fn1 He filed a charge of discrimination with the EEOC on February 4, 2009, and filed the instant action on February 5, 2010.

Presently before us are two motions. The first motion, brought by PPI, is a motion for summary judgment. For the reasons set forth below, we grant PPI's motion. The second motion, brought by Gliva, is a motion for partial summary judgment on PPI's affirmative defenses. As the affirmative defenses are not considered in our decision to grant summary judgment, we have no reason to reach the issues presented in Gliva's motion and dismiss it as moot.*fn2


PPI sells plastic sheet rods, tubes, and films in North America. Gliva worked in the Film Group, which specializes in the conversion and sale of thin gauge plastic films utilized in various manufacturing and printing settings. (Def.'s Stat. ¶ 2.) Prior to January 2009, the Film Group had three facilities: Midwest Film (in Wheeling, Illinois), Northeast Film (in Charlton, Massachusetts), and Charlotte Film (in Charlotte, North Carolina). (Id. ¶ 6.)

Since January 2004, Pete Dixon has been the general manager of the Film Group and responsible for the Group's profitability. (Id. ¶ 7.) Dixon hired Gliva to work at Midwest Films in March 2004 as a Film Specialist-essentially an outside salesman. (Id. ¶ 12.) Gliva was 56 years old when he was hired. (Id. ¶ 12.) In this position, Gliva was expected to make sales calls and appointments, develop a list of target customers, close a certain number of targets per year, continue the relationship with existing customers, and meet annual sales numbers. (Id. ¶ 13.) Gliva ultimately reported to Dixon during his entire career with PPI. (Id. ¶ 12.)

From the date of his hire until late 2007, Gliva served as the outside salesman over a geographic territory including Michigan, Ohio, Indiana, Wisconsin, Minnesota, Iowa, and Missouri. (Id. ¶ 14.) The parties agree that this Midwest territory has the first or second largest potential for film business in the country. (Id.) As an outside sales person, Gliva was expected to close ten targets and $500,000 in targeted business per year. (Id. ¶ 16.) Gliva agreed that these numbers were given to him as guidelines, but felt that they were "aspirational," not minimum requirements. (Pl.'s Resp. to Def.'s Stat. ¶ 16.) The parties dispute the precise number of outgoing telephone calls and in-person appointments that an outside salesperson is expected to make each month; the numbers presented range for 40 to 55 of each, calls and appointments, per month. (Def.'s Stat. ¶ 17.) Salespersons were also expected to use Goldmine Contact Management ("Goldmine") to track accounts and to allow supervisors to monitor the activities. (Id. ¶ 18.) Gliva understood that he was required to use Goldmine and that supervisors might only learn of his performance based on Goldmine reports. (Id. ¶¶ 19--20.)

i. Formal Performance Reviews: 2005--2007 Roughly once a year, PPI formally reviews employee performance and provides each employee with grades and feedback; employees are given a copy of each review and an opportunity to respond. (Id. ¶ 21.) In Gliva's review covering the period from March 2004 to March 2005, Tyler Booth, Gliva's then direct supervisor, rated Gliva at 6.76: Good.*fn3 (Gliva Dep. Ex. 18 at 1, 9.) The review contained ratings in different categories ranging from 5.5 to 8. (Id.) With respect to Gliva's appointment activities, T. Booth wrote that he "would still like to see some more appointments, especially when you are in the Chicago area." (Def.'s Stat. ¶ 23.) The report also indicated that Gliva successfully closed five accounts, while the corporate average was eight and the goal was 10--15. T. Booth explained that he rated Gliva a 7 in this category "due to recent activity over the last 6 months," also noting that Gliva's targets were well thought out and realistic. (Id. ¶ 24; Gliva Dep. Ex. 18 at 2.) In a summary of the review, T. Booth wrote that Gliva's appointment activity needed to increase and that closing ten targets would put him "on pace." (Gliva Dep. Ex. 18 at 7.) Finally, the review included a list of job expectations. The documents indicates that Film Specialist should close a minimum of $500,000 in targeted business annually and make 55 calls per month, though Dixon clarified that the number should actually be 50 calls per month. (Id. at 8; Dixon Dep. at 52.)

T. Booth also reviewed Gliva's performance during the period from April 2005 to May 2006. (Def.'s Stat. ¶ 27.) Gliva received an overall rating of 6.47: Meets Expectations.*fn4 (Gliva Dep. Ex. 19 at 7.) During that period, Gliva averaged 36 appointments per month, below the 40 to 50 per month goal, but in line with the other Film Specialists who averaged between 25 to 49 appointments per month. Gliva also averaged 72 activities per month, while the Film Specialist average was 94 activities per month and individual salespersons numbers ranged from 61 to 187 activities per month. (Def.'s Stat. ¶ 28; Gliva Dep. Ex. 19 at 1.) Although he had been expected to close ten targets during this review period, Gliva did not close any targets and was rated 4.5 in the related category. (Def.'s Stat. ¶ 32; Gliva Dep. Ex. 19 at 2.) In three separate locations on the review, T. Booth indicated that Gliva needed to build his customer base. (Gliva Dep. Ex. 19 at 1--2, 5.) Booth wrote in the review summary that Gliva should close ten target accounts and complete 40 plus appointments per month during the following year. (Def.'s Stat. ¶ 33.)

In December 2007, Campo, who was then acting as Gliva's direct supervisor, reviewed Gliva's performance for the period November 2006 through October 2007. (Id. ¶ 34.) Gliva received a total score of 67.5: Meets Requirements.*fn5 (Gliva Dep. Ex. 20 at 4.) The review indicates that Gliva closed three targets during the period, below the corporate average of nine, and earned a rating of 2 in the related category. (Def.'s Stat. ¶ 35; Gliva Dep. Ex. 20 at 3.) He also earned a 2 in the categories of "Timeliness" and "Target Manager Information Quality," seemingly based on his inadequate use of Goldmine, as well as in the category of "Appointment Activity." (Gliva Dep. Ex. 20 at 1--3.) The review again pointed out deficience in Gliva's ability to grow the base. With respect to closing new business, Campo rated Gliva a 1, explaining that "Bill needs to close 10 targets this year. I made it clear to Bill." (Id. at 2.) Under the "quality of work" category, Campo rated Gliva a 2.5, indicating that "Bill needs to focus to grow territory and close targets this year." (Id. at 1.) Again, under the heading "Opportunity for Development," Campo wrote, "Bill needs to focus on new markets and opening up new accounts, and close 10 targets min[imum]." (Id. at 4.) The specific goals listed for the following year were to close 10 targets, increase the number of unique customers, and widen the territory to close new accounts. (Def.'s Stat. ¶ 42; Gliva Dep. Ex. 20 at 4.)

ii. Informal Performance Reviews: 2007--2008 Based on a print out of Gliva's outside calls, PPI asserts that between November 2007 and November 2008, Gliva never made more than 13 calls per month, despite admitting that he was asked to make over 40 calls per month. (Gliva Dep. Ex. 30.) Gliva argues, however, that the numbers on the report are not accurate due to computer troubles, and he asserts that his managers were aware of this problem.

In Summer or Fall of 2008, Dixon accompanied Gliva on a sales trip through parts of Wisconsin. Dixon stated that Gliva kept his car messy, appeared disorganized, and seemed to have done little to plan for the trip-leading him to feel that he needed to take immediate action to improve Gliva's performance. Gliva disputes the statements about the trip: he claims that his car was clean, that he was organized, and that he had planned every aspect of the trip. (Def.'s Stat. ¶ 45; Pl.'s Resp. to Def.'s Stat. ¶ 45.)

Gliva met with Campo on October 10, 2008; the meeting was memorialized on a memorandum sent by Campo to Gliva on October 13, 2008. The memorandum explained that the meeting was necessary "[a]s a result of your performance over the past 10 months." According to the memorandum, the discussion at the meeting addressed improvements Gliva needed to make to meet his job expectations and "to help insure the profitable future of Piedmont Film Group, Wheeling." (Dixon Dep. Ex. 32.) Campo outlined a number of areas that needed "immediate improvement," including: closing ten targets per year to equal a minimum of $500,00 in sales, generating five new accounts per month, updating Goldmine, and making 50 appointments per month. (Id.) Gliva described the meeting as a "let's pick up the pace" type meeting, emphasizing that Campo never mentioned termination during the discussion. (Pl.'s Resp. to Def.'s Stat. ¶ 47.)

Gliva also met with Dixon and Campo on October 20, 2008. Dixon documented the meeting in a follow-up email that Gliva asserts he never received. (Def.'s Stat. ¶ 48; Pl.'s Resp. to Def.'s Stat. ¶ 48.) In the meeting, Dixon stressed that Gliva needed to do a better job with Goldmine and call more customers; Gliva acknowledged during his deposition that after this meeting he knew that he needed to improve and get it straightened out quickly. (Def.'s Stat. ¶ 48.)

iii. The Film Group's Finances and Decision to Terminate Gliva The Film Group became a separate division, subject to separate profit and loss accounting, in 2006. (Def.'s Stat. ¶ 57.) PPI expected that it would take time for this new division to become profitable, but asserts that it performed worse than expected: by the close of fiscal year 2008, the Film Group had lost over two million dollars. (Id. ¶ 58.)

While there is evidence that Hank Booth, PPI's then president, discussed the need to cut expenses in the Film Group as early as September 2008, there is no evidence that he or anyone else informed Dixon until December 2008. H. Booth and Dixon both testified that they had a discussion about cutting expenses in early December 2008. (Dixon Dep. at 188 ("I'm going to say early December, when we were doing a budget review."); H. Booth Dec. ¶ 10 ("During a budget meeting around the beginning of December 2008, I told Pete Dixon . . . that the Film Group needed to cut expenses.").) Gliva, on the other hand, only cites H. Booth's deposition testimony indicating that H. Booth informed Dixon of the concerns in "September or after 2008." (H. Booth Dep. at 26.) Therefore, we are left with the undisputed statement that Dixon was first told to cut expenses in early-December 2008.*fn6

After the directive was given, H. Booth gave Dixon discretion to determine the manner in which expenses were to be reduced; however, as 60% of expenses came from employee costs, it was clear that some employees needed to be terminated. (Def.'s Stat. ¶ 61.) On December 16, 2008, Dixon sent a memorandum to Suzanne Awn, PPI's Human Resources Director, explaining that management had made the decision to close Northeast Films and to reduce the work force at Midwest Films. The memorandum indicated that PPI would terminate four employees from Northeast Films and two employees from Midwest Films: Gliva and Jamie Gelshecker, a Machine Operator. (Dixon Dep. Ex. 37 at 2.) Gliva was officially terminated on January 12, 2009. (Def.'s Stat. ¶ 1.)


The ADEA prohibits employers from engaging in discrimination on the basis of an employee's age. 29 U.S.C. § 623(a)(1). An employee may establish age discrimination under the ADEA using the direct or indirect method. "In either case, the bottom line question is whether the plaintiff has proved intentional discrimination." Martino v. MCI Commc'ns Serv., Inc., 574 F.3d ...

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