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Treadway v. California Products Corporation

United States District Court, E.D. Tennessee, Greeneville Division

January 5, 2015

JOHN L. TREADWAY, Plaintiff,


LEON JORDAN, District Judge.

The complaint in this case alleges age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), along with breach of contract. Through a joint stipulation filed in July 2014 [doc. 30], the parties agreed that the breach of contract claim should be dismissed with prejudice.

Plaintiff's age discrimination claim is now before the court on defendant California Products Corporation's ("CPC") motion for summary judgment [doc. 31]. Plaintiff has responded to the motion, and defendant has submitted a reply. For the reasons that follow, defendant's motion will be granted and this civil action will be dismissed.



Plaintiff was born in 1942. He worked for defendant and defendant's predecessor entities [including Progress Paint Manufacturing Company ("Progress")] as a salesman for from 1978 through 2011.

Noel Booker was Progress's president. He later became defendant CPC's Vice President of Progress Brands Division, and he remained in that position at all times relevant to this case. Plaintiff testified that he told Booker on March 9, 2009, that he "would like to slow down some because I was 66 years old and I felt it was time I could slow down." Plaintiff insists that he did not mention "retiring."

The record contains two versions of a March 17, 2009 memorandum from Booker to plaintiff. Each version was submitted by the defense as an exhibit in support of its summary judgment motion. [Doc. 32, ex. 3, p.25; ex. 6, p.2; ex. 8, p.3]. The versions differ primarily in that the heading of the "2010" section of the memo reads "2010 (assumes you want to semi-retire)" in one version and "2010 (assumes you retire)" in the other. Also, one version references the "Carolinas territory" which the other version calls the "Harrison territory." By affidavit, Booker states that he prepared both versions but does not recall why.

The March 17, 2009 memorandum states that it "is a draft outline of what we discussed on the phone Monday 3/9/09. The premise of this plan is that Bill Huff and David Harrison territories are to be eliminated due to cost constraints." Under the proposal, for the remainder of 2009: plaintiff would take over Harrison's Carolina accounts; plaintiff would take over Huff's two Bahamas accounts; and plaintiff's "existing accounts that are geographically closer to Knoxville than Johnson City will be re-assigned to David Lloyd." For 2010, the proposal contemplated that Progress would hire a new salesperson for the Carolinas territory, and plaintiff would then become an independent sales agent rather than an employee. Plaintiff would retain his three Bahamas accounts and his "current accounts within approximately 40 miles of Johnson City."

Plaintiff challenges the accuracy of the memorandum's use of the words "retire" and "semi-retire." However, in his deposition, plaintiff acknowledged that, according to the terms of the draft agreement, he "had to retire as a[n] employee and become an independent agent." He further acknowledged that had the proposed plan gone into effect, he would have been "semi-retired."

In August 2009, CPC acquired Progress's assets. CPC retained plaintiff, along with all of Progress's other sales employees. Half of those salespersons were over the age of sixty, and all of them were at least 49 years old. According to the affidavits of Booker and Steven McMenamin, the Chief Operating and Financial Officer of CPC, defendant began restructuring the territory and account assignments of almost all CPC salespersons between August 2009 and 2013.

In September 2009, defendant held a transitional meeting to discuss "issues associated with the integration of the Progress business and sales force." Attendees included Booker, McMenamin, CPC's Executive Vice President Daniel Cohen, and CPC's Chief Executive Officer Peter Longo. Booker took notes, which he subsequently emailed to McMenamin, Cohen, Longo, and others on September 14, 2009. Regarding the plaintiff, Booker's meeting notes mention that "[t]he Progress salesman living in Johnson City, TN is slated to retire November 30, 2009. Thereafter, he would like to work as an independent agent continuing to handle the 3 Fixall accounts in the Bahamas and Gray Seal/Fixall accounts within an approximate 40 mile radius of Johnson City."

On June 9, 2010, Cohen emailed a document to McMenamin and Longo entitled "Proposed Territory Changes and Alignments." That document contained Cohen's "current recommendation[s] following the examination of the territories and markets." In regards to CPC's South Atlantic market, Cohen's proposed changes were that: plaintiff "retires"; Jim Turmelle would take over the Bahamas and Caribbean accounts; and a new hire would "manage and grow" Virginia, North Carolina, and South Carolina.

On October 27, 2010, Booker provided a "Sales Territories Consolidation/Expansion Plan" to Longo, McMenamin, and Cohen. In pertinent part, that document provided,

John Treadway will retire at the end of 2010. For the past two years this territory [Virginia, North Carolina, and South Carolina] has been in a maintenance mode as opposed to a development mode, and has thus been declining....
John Treadway wants to represent [CPC] as an independent agent, maintaining current dealers and developing new business in the Bahamas. John is willing to do this indefinitely. It would be to our advantage, and least disruptive to our customers, to pursue this through 2011 and likely into 2012, or until we are ready [to] assign this business elsewhere.

In an email dated December 27, 2010, plaintiff informed Booker, "I have no problem to continue working until you hire the person for my territory."

In October 2011, Booker hired David Boepple, age 57, to cover the Carolina accounts. David Lloyd, age 56, assumed most of plaintiff's Virginia business. At Booker's request, plaintiff introduced Boepple and Lloyd to the Carolina and Virginia clients that plaintiff had been servicing. As of November 2, 2011, plaintiff's remaining ...

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