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Davis v. Koffee Kup Bakery, Inc.

United States District Court, D. Vermont

August 18, 2016



          Christina Reiss, Chief Judge

         Plaintiff Michael Davis alleges that in terminating his employment. Defendant Koffee Kup Bakery, Inc. discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1), and the Vermont Fair Employment Practices Act ("VFEPA"), 21 V.S.A. § 495(a)(1). Pending before the court is Defendant's motion for summary judgment (Doc. 19), which Plaintiff opposes.[1] On April 12, 2016, the court held oral argument, deferred judgment on the pending motion, and permitted the parties to conduct limited additional discovery and file supplemental briefing. On July 20, 2016, after denying Defendant's motion to strike Plaintiffs supplemental briefing, the court took the pending motion under advisement.

         Plaintiff is represented by James G. Levins, III, Esq. Defendant is represented by Kerin E. Stackpole, Esq., and Emily C. Adams, Esq.

         I. The Undisputed Facts.

         Plaintiff was employed by Defendant as a Route Sales Representative ("RSR") at its Rutland, Vermont location (the "Rutland Depot") from June 8, 1987 until June 28, 2014. As a RSR, Plaintiff delivered baked goods to Stores on a designated delivery route. When Plaintiff began working for Defendant, he was forty-one years old. When his employment ended on June 28, 2014, he was sixty-eight years old.

         In 2010 and 2011, Shaw's Supermarkets issued several notices regarding "discrepancies" in Plaintiffs deliveries. See Doc. 22-11 at 1-8. Nonetheless, in 2010 and 2011, Plaintiffs supervisor rated his overall job performance as 4.5 on a five-point scale, reflecting that he performed between "meet[ing] or often exceed[ing] standards in all areas[, ]" and "exceptional, consistently exceeding standards." (Doc. 22-3 at 6, 12.)

         On January 22, 2013, Plaintiff received a written disciplinary notice that summarized complaints regarding his stocking of products and contact with store representatives at three Shaw's Supermarkets. Plaintiffs February 2013 performance review rated his performance as 2.5 on a five-point scale, indicating that his performance fell between "[t]his RSR has one or more problem areas[, and] [i]n other respects, meets expectations[, ]" and "[t]his RSR meets expectations." (Doc. 22-5 at 3.) On April 8, 2013, Plaintiff received a second written notice and a one-day suspension due to his unimproved performance at the three Shaw's Supermarkets. In November 2013, he again received a 2.5 overall rating. In December 2013, Plaintiffs supervisor, Mark Whitehead, emailed his superior, Brian Carpentier, regarding Plaintiffs performance issues, writing, "How do you control stupid?" (Doc. 50-18 at 1.)

         During the fall of 2013, Mr. Whitehead visited the Rutland Depot on a monthly basis. Each time, he approached Plaintiff and asked, "when are you going to retire[?]" and "are you in good health?" (Doc. 22-4 at 5, 11.) [2]On those five occasions. Plaintiff responded that he was not ready to retire and that he was in good health. By October 2013, Plaintiff believed Mr. Whitehead "was really pushing" him to retire. (Doc. 50-15 at 6.) During Mr. Whitehead's visit to the Rutland Depot in November 2013, although the contents and nature of their conversation are otherwise disputed, Plaintiff indicated that his last day of work would be in February 2014.

         In November 2013, Kevin Bedard, another RSR, suffered a workplace injury that required an extended leave of absence. Chris Allen was hired as a RSR to "ride with [Mr. Bedard] then run his route while [Mr. Bedard] is out." (Doc. 55-9 at 4.)

         On or about December 13, 2013, Mr. Whitehead visited the Rutland Depot and asked Plaintiff to sign a "Voluntary Termination" form (the "December 2013 form"). (Doc. 22-9 at 1.) Plaintiff signed the December 2013 form, which stated, "I Mike Davis give notice that I will be leaving Koffee Kup Bakery as of 2/6/14. My last day of work is 2/6/14." Id.

         On December 17, 2013, a "concerned motorist" reported that Plaintiff had "passed him on a double yellow line and road conditions were snowy [, ]" and noted that "this is not the first time this [particular] truck has passed him in the same area." (Doc. 22-10 at 3) (emphasis omitted). On December 30, 2013, Plaintiff backed into the Rutland Depot, which "damaged the grab handle on the back of the truck and broke the upper marker light [] assembly." Id. at 4. Mr. Whitehead noted in an email to Mr. Carpentier that February 6, 2014 "cannot come quick enough." (Doc. 50-17 at 1.) The Notice of Reprimand issued with regard to the December 30, 2013 incident explained that Plaintiff had submitted his Voluntary Termination form, effective February 6, 2014, so "[n]o additional action [would] be taken." (Doc. 22-10 at 4.)

         On January 5, 2014, Plaintiffs mother-in-law passed away and, as a result, Plaintiff informed Mr. Whitehead that he would not "be able to retire at this time" because he needed to pay her funeral expenses. (Doc. 55-16 at 2.) On January 20, 2014, Mr. Whitehead sent an email to Mr. Carpentier, reporting that Plaintiff "signed to retire 2/6" but would like to extend his employment, that Mr. Bedard may return to "light duty" status in February and "full time" status in May or June, and that Mr. Allen was "running [Mr. Bedard's] route and hired full time with the understanding he gets [Plaintiffs] route when he retires or when [Mr. Bedard] [is] back unrestricted." (Doc. 22-20 at 9.)

         On January 21, 2014, Mr. Carpentier sent an email to Judy Schraven, Defendant's Human Resources Manager and Business Administrator, with the following comments regarding whether to grant Plaintiffs request to postpone his retirement:

He is set to retire in February.
Resignation is in.
I would like to allow it as long as his performance is good.
He recently had an accident and a complaint which he should have got terminated for.

         If we do not change paperwork I would think we can just cut him anytime. Id. at 12. Defendant subsequently agreed to continue Plaintiffs employment for an unspecified period of time.

         On June 16, 2014, Mr. Bedard returned to full-time employment. On June 26, 2014, Mr. Whitehead visited the Rutland Depot and informed Plaintiff that delaying his retirement was no longer necessary. Plaintiff signed another "Voluntary Termination" form, effective June 28, 2014 (the "June 2014 form"). (Doc. 22-18 at 1.) Mr. Allen thereafter assumed Plaintiffs route. At the time, Mr. Allen was thirty-three years old.

         Plaintiff testified in deposition that Mr. Whitehead's inquiries about his retirement and health were the only negative remarks that he recalls Defendant's employees making about his age. However, Mr. Bedard testified that he would "jokingly" make comments about Plaintiffs age, and that he and other employees occasionally said, "Mike, when are you retiring?" because he "was up there in age." (Doc. 46-4 at 3-4, 12.) Glenn Diezel, Defendant's Area Sales Manager of the Rutland Depot, testified that "a few" employees sometimes said, "Mike, why don't you retire already[, ]" (Doc. 46-5 at 15.)

         At the time of Plaintiff s termination, there were six RSRs at the Rutland Depot. Plaintiff was the only RSR older than sixty years of age, and was twelve years older than the next-oldest RSR, Mr. Bedard. After Plaintiff ceased working for Defendant, Defendant offered him part-time merchandising work that would have required him to stock shelves one day per week.

         II. The Disputed Facts.

         Plaintiff disputes whether his signature on the two "Voluntary Termination" forms was, in fact, voluntary. He asserts that prior ...

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