United States District Court, D. Vermont
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT (Doc. 19)
Christina Reiss, Chief Judge
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. 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
is represented by James G. Levins, III, Esq. Defendant is
represented by Kerin E. Stackpole, Esq., and Emily C. Adams,
The Undisputed Facts.
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.
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.)
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.)
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.)
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.
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.)
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.
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.)
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.)
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
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.
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
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.
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.)
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
The Disputed Facts.
disputes whether his signature on the two "Voluntary
Termination" forms was, in fact, voluntary. He asserts
that prior ...