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Fox v. Eagle Distributing Co.

October 11, 2006

JAMES FOX, PLAINTIFF,
v.
EAGLE DISTRIBUTING CO., INC., DEFENDANT.



The opinion of the court was delivered by: Leon Jordan United States District Judge

MEMORANDUM OPINION

This civil action is before the court on the defendant's motion to dismiss or for summary judgment [doc. 25]. The plaintiff has responded [doc. 42], and the defendant has filed a reply brief [doc. 44]. The plaintiff has also filed a motion for summary judgment on his retaliation claim [doc. 22], to which the defendant has responded [doc. 31]. The court finds that oral argument will not be necessary, and the motions are ripe for the court's consideration. For the reasons discussed below, the defendant's motion for summary judgment will be granted in part, the plaintiff's motion will be denied, and the case will be dismissed.

In his Second Amended Complaint, the plaintiff alleges that his employer violated his rights under the Age Discrimination in Employment Act (29 U.S.C. §§ 621 et seq.) ("ADEA"), the Tennessee Human Rights Act (Tenn. Code Ann. § 4-21-407), and the Tennessee whistleblower act (Tenn. Code Ann. § 4-21-407), and he raises a state law claim of "common law retaliatory discharge." He seeks both compensatory and punitive damages, attorney's fees, costs, and interest.

I. Factual Background

The following facts are taken from the exhibits to the parties' motions for summary judgment. For the reasons discussed below, the court will set out only those facts relevant to the plaintiff's federal and state claims for age discrimination. In 1991, the plaintiff began working for the defendant Eagle Distributing Company, Inc. a local beer distributor. He started at an entry-level position and regularly received promotions until he achieved the position of team leader, a position he held until shortly after his fortieth birthday.

The plaintiff celebrated his fortieth birthday in January 2002. His girlfriend sent him black balloons, and there were some teasing comments made at the time. The only other age-related comment was made later that year when one of the plaintiff's accounts was assigned to another driver. The plaintiff's supervisor at the time, Todd Lawson, allegedly said, "Look at you. You've already hurt your shoulder. You're too old to be doing this job." Todd Lawson denied making this statement.

On February 5, 2002, about thirty days after the plaintiff's fortieth birthday, the plaintiff was demoted to a sales route and relieved of his supervisory responsibilities. The plaintiff believes that the only reason for the demotion was his age. Mike Craig, the plaintiff's supervisor at the time, stated in his deposition that the decision to demote the plaintiff was made, after discussions with Bob Winkel, a manager with Eagle, because there were "numerous complaints from customers and employees and I felt like it was time to make a change." Winkel testified in his deposition that the decision to demote the plaintiff was made over a period of several months or even years. Winkel stated that he had been receiving some information from route drivers and others about the condition of the stores for which the plaintiff was responsible. Further, the men the plaintiff supervised told Craig that they had no confidence in the plaintiff as a supervisor. The memo written by Craig and found in the plaintiff's employment file, dated January 11, 2002, states the reason as:

"Four of the five salesmen that work under Jim were not please [sic] with his efforts as their supervisor, mostly citing lack of communication and follow up with customers as their main concern. . . . I thought Jim could be a valuable employee in another capacity. We decided at this time to leave Jim in his current position . . . [but] the first available route position would be offered to Jim."

The plaintiff's employment would have been terminated had he not accepted the sales route position.

Thereafter, the plaintiff applied for other positions. One in particular was a bulk sales position under Tom Buck for which he applied shortly after his demotion. He did not get the job; a younger man with less time with the company received the position. Again, the plaintiff believed that he did not get the bulk sales job because of his age. Buck testified that the reason he did not hire the plaintiff was because of his attitude. When Buck met with the plaintiff to discuss the position, he recalled that the plaintiff "had one of the worst attitudes at that time of anyone that I could have talked to." Buck said he would have terminated him on the spot if it had been his place to do so. The plaintiff told Buck that he did not want to be working for Eagle and that he was planning on leaving. Given these statements, Buck offered the position to someone else. Over the years there were other positions that the plaintiff applied for but younger men were given the positions.

In June 2002, the plaintiff filed an EEOC charge with the Tennessee Human Rights Commission alleging age discrimination. He filed a lawsuit in Knox County, Tennessee, in February 2003 alleging age discrimination in violation of the Tennessee Human Rights Act. This lawsuit was finally dismissed without prejudice in February 2005. Thereafter, the plaintiff continued to be vocal about policies and practices that he thought were illegal, such as shortages in paychecks and docking pay for bad checks or old beer, and he made management aware of Department of Labor and Department of Transportation regulations.

In June 2004, Eagle received a complaint about the plaintiff from the assistant manager of one of its customers, a Weigel's store. The assistant manager said that the plaintiff had delivered cases of beer to her store, but left the beer in the aisle while he took a thirty to forty minute break. The beer was in the way of customers and blocked her view of the cameras. When the plaintiff's supervisor tried to talk to the plaintiff about the incident, the plaintiff justified the incident by stating that he had a right to take a lunch break. The supervisor explained that the plaintiff could and should take a lunch break, but he could not leave beer in the aisles of the store while doing so. The plaintiff then presented his supervisor with Department of Labor information retrieved from the Internet to prove that he was entitled to a lunch break. The plaintiff was warned that if Eagle received another customer complaint his employment would be terminated.

In January 2005, Daniel Traczek, the plaintiff's supervisor, was checking a Pilot store that the plaintiff serviced. The manager of the store told Traczek that the plaintiff had been complaining to her about Eagle, Bob Winkel and Mike Thomas. The plaintiff had told her that upper management was "out to get him" and that he had a "ten million dollar lawsuit" against the company that "ought to get their attention." Eagle considered this information to be a customer complaint, and the plaintiff's employment was terminated on February 5, 2005. The plaintiff contends that this was not a customer complaint.

On July 13, 2005, the plaintiff filed an EEOC charge with the Tennessee Human Rights Commission alleging retaliation, failure to promote, and termination of his employment. These complaints arose out of the plaintiff's belief that he was discriminated against because of his age and the subsequent actions he took to ...


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