Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Higley v. Tulsa Dental Products, LLC

United States District Court, E.D. Washington

February 4, 2018

GARY HIGLEY, an individual, Plaintiff,
TULSA DENTAL PRODUCTS, LLC, a Delaware limited liability corporation, Defendant.


          THOMAS O. RICE Chief United States District Judge.

         BEFORE 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 DENIED.


         Plaintiff 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.


         The 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.

         Mr. 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.

         In 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.

         At the 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).

         Defendant 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).

         In May 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.

         Since 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.

         In 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.


         Summary 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. Celotex Corp. v. Catrett, 477 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.