United States District Court, E.D. Washington
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
O. RICE Chief United States District Judge.
THE COURT is Defendant's Motion for Summary Judgment. ECF
No. 25. Also before the Court is Plaintiff's Motion to
Strike & Notice of Intent to Dismiss Disability
Discrimination Claim. ECF No. 35. The Court has reviewed the
record and files herein, and is fully informed. These matters
were heard without oral argument, the Court determined
pursuant to LR 7.1(h)(3)(B)(iv) that oral argument is not
warranted. The hearing scheduled for February 15, 2018 is
cancelled. For the reasons discussed below,
Defendant's Motion for Summary Judgment (ECF No. 25) is
Gary Higley commenced this action against Defendant Tulsa
Dental Products LLC (“TDP”) for age
discrimination in violation of the Washington Law against
Discrimination (“WLAD”) RCW § 49.44.090 and
§ 49.60.180, and disability discrimination in violation
of RCW § 49.60.180. ECF No. 3 at ¶¶ 4-5.
Defendant moves for summary judgment on all claims. ECF No.
25. Plaintiff filed a Notice of Intent to Dismiss Disability
Claim, and thus the Court will only consider Plaintiff's
age discrimination claim. ECF No. 35.
following are the undisputed facts unless otherwise noted. In
2002, Mr. Higley was hired by TDP as an Outside Sales Manager
at the age of 58. ECF Nos. 26 at ¶ 1; 29 at ¶¶
1, 3. Mr. Higley was interviewed by Steve Andregg and Joe
Wright, but the parties dispute who made the final hiring
decision. ECF Nos. 26 at ¶ 2; 29 at ¶ 2. In 2004,
Mr. Higley was promoted to Senior Outside Territory Manager
and his supervisor was Joe Wright. ECF No. 29 at ¶¶
5-6. In 2007, he was promoted to Executive Territory manager
at age 63. ECF Nos. 26 at ¶ 3; 29 at ¶ 7; 26-1 at
107 (Ex. E). Mr. Higley was supervised by Vanessa Bourgeois
and then by Stewart Walline in late 2010 or early 2011. ECF
Nos. 26 at ¶ 4; 29 at ¶¶ 8, 17. Mr. Andregg
was Ms. Bourgeois' supervisor and TDP's West Area
Sales Manager. ECF Nos. 26 at ¶¶ 4-5; 29 at ¶
13. Defendant asserts that Mr. Higley could not have been
promoted without Mr. Andregg's approval and Mr. Higley
agreed that he believed Mr. Andregg had to approve his second
promotion. ECF Nos. 26 at ¶ 6; 29 at ¶ 11.
Higley's responsibilities as an Executive Territory
Manager were “account management, business development
and achieving quota.” ECF Nos. 26 at ¶ 7; 26-1 at
109 (Ex. F). Key Performance Indicators (“KPIs”)
are the required number of sales calls each day. ECF No. 25
at 2. In 2011 and 2012, each salesperson had a target of
eight KPIs per day. ECF Nos. 26 at ¶ 26; 29 at ¶
21. The amount was increased to ten KPIs in 2013. ECF No. 26
at ¶ 27. In 2008, Mr. Higley failed to meet his yearly
quota. Id. at ¶ 31. Mr. Higley made his quota
in 2009 and improved his KPIs, but did not meet his quota in
2010. ECF Nos. 26 at ¶¶ 34-35, 39; 29 at ¶ 19.
November 2011, Mr. Walline issued Mr. Higley a written notice
stating that his job performance required immediate
improvement. ECF Nos. 26 at ¶ 41; 29 at ¶ 26; 26-1
at 157 (Ex. Q). Mr. Higley asserts that in December 2011, Mr.
Walline emailed Debbie Yoder, an employee at TDP's Human
Resources, regarding Mr. Higley's health issues and
whether these ailments “would prevent Gary from being
let go due to his performance issues?” ECF Nos. 29 at
¶ 28; 27 at 141-42 (Ex. G). Ms. Yoder does not recall if
she followed the normal course of action by looking into his
performance, requesting information regarding his
performance, or requesting information regarding past
disciplinary action. ECF Nos. 29 at ¶ 29; 25 at 104-05
(Ex. C); 31-3 at ¶ 3.
end of 2011, Mr. Higley did not meet his sales quota. ECF No.
26 at ¶ 43. In January 2012, Mr. Higley was put on a
Developmental Action Plan (“DAP”) focused on new
products sales and was issued a final written notice. ECF
Nos. 26 at ¶ 46; 29 at ¶ 34; 26-1 at 168-70 (Ex.
T). Mr. Higley asserts that he exceeded his quota in January,
February, March, and April 2012. ECF No. 29 at ¶ 51.
Defendant notes that in February 2012, TDP revised Mr.
Higley's DAP to reflect a reduced expectation of selling
eight specified products per month rather than ten. ECF No.
26 at ¶¶ 46, 50; 26-1 at 112-13 (Ex. G).
contends that in March 2012, Mr. Higley had multiple KPI
entries for the same customer, but this should only count as
one KPI. ECF Nos. 26 at ¶¶ 52-53.; 26-1 at 182 (Ex.
W). Mr. Andregg recommended termination at this time. ECF No.
26-1 at 182 (Ex. W). On April 4, 2012, Mr. Andregg and Ms.
Yoder had a call with Mr. Higley to discuss that he was not
meeting the company's expectations. ECF Nos. 26 at
¶¶ 59-60; 26-1 at 190-92 (Ex. Y).
2012, Matthew Burns became Mr. Higley's supervisor at the
age of 33. ECF Nos. 26 at ¶ 62; 29 at ¶¶ 44,
46. Mr. Burns kept Mr. Higley on the DAP. ECF Nos. 26 at
¶ 63; 29 at ¶ 66. While Defendant agrees that Mr.
Higley was exceeding quota, Defendant contends that he was
failing to meet new product sales expectations and was not
hitting his KPI target. ECF No. 26 at ¶ 63.
December 2011, Mr. Higley suffered back pain. ECF No. 29 at
¶ 67. From July 31, 2012 to September 4, 2012, Mr.
Higley was on FMLA leave for back surgery. ECF Nos. 26 at
¶ 69; 29 at ¶¶ 68-70; 26-1 at 213 (Ex. DD).
Upon his return, he had a lifting and carrying restriction of
25 pounds. ECF Nos. 26 at ¶ 70; 29 at ¶ 76; 26-1 at
216 (Ex. EE). Mr. Higley alleges that he requested a
reduction in KPIs because he had to break down his materials
for visits to his clients so that he would be able to carry
them, meaning he was making less calls per day. ECF No. 29 at
¶ 79. Mr. Higley asserts that Mr. Burns denied his
request. Id. at ¶¶ 80-81.
January 2013, Mr. Burns issued Mr. Higley a Second Final
Written Counseling, outlining Mr. Higley's deficient
performance. ECF Nos. 26 at ¶ 81; 29 at ¶ 99; 26-1
at 200-01 (Ex. Z). In March 2013, Mr. Andregg again
recommended that Mr. Higley be terminated. ECF No. 31-2 at 8
(Ex. A). In April 2013, Ms. Yoder sent an email to TDP's
HR Director requesting approval for Mr. Higley's
termination. ECF Nos. 29 at ¶¶ 105, 107; 26-1 at
255 (Ex. NN). The request was approved on April 5, 2013 and
Mr. Higley was terminated at age 68. ECF Nos. 26 at
¶¶ 85-86; 29 at ¶¶ 108-09; 25 at 16; 26-1
at 257 (Ex. OO). Mr. Higley was replaced by Jonathan Meyers,
who is under 40 years old. ECF No. 29 at ¶ 110.
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). For
purposes of summary judgment, a fact is
“material” if it might affect the outcome of the
suit under the governing law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A material fact is
“genuine” where the evidence is such that a
reasonable jury could find in favor of the non-moving party.
Id. The moving party bears the initial burden of
showing the absence of any genuine issues of material fact.
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