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Spore v. Dreyer's Grand Ice Cream, Inc.

United States District Court, D. Minnesota

March 2, 2015

Leif Spore and Brian Stark, Plaintiffs,
v.
Dreyer's Grand Ice Cream, Inc., d/b/a Nestle DSD Company, Defendant.

Celeste E. Culberth and Leslie L. Lienemann, Culberth & Lienemann, LLP, 444 Cedar Street, Suite 1050, St. Paul, Minnesota 55101, for Plaintiffs.

Jacqueline A. Mrachek and Sean R. Somermeyer, Faegre Baker Daniels, LLP, 90 South 7th Street, Suite 2200, Minneapolis, Minnesota 55402, for Defendant.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

This matter is before the Court on Defendant's Motion for Summary Judgment [Doc. No. 36]. Plaintiffs Leif Spore and Brian Stark asserted claims against Defendant Dreyer's Grand Ice Cream, Inc., d/b/a Nestle DSD Company ("Nestle") alleging violations of the Minnesota Human Rights Act ("MHRA"), Minn. Stat. §§ 363A.01, et seq., based on age discrimination (Count I) and reprisal (Count II).[1] Several weeks after the hearing on the instant motion, Spore resolved his dispute with Nestle. (Minute Entry of 1/9/15 [Doc. No. 59].) Because the reprisal claim in Count II related only to Spore and is now resolved, this Order addresses only Stark's claim of age discrimination against Nestle.[2] For the reasons set forth herein, Defendant's Motion is denied.

I. BACKGROUND

A. Employment and Corporate History

Stark began working for Tombstone Pizza in the 1980s and, after Kraft Foods' ("Kraft's") 1989 acquisition of Tombstone Pizza, worked for Kraft's Frozen Pizza Division as a District Manager. (Stark Dep. 25, 27, 40-41, Ex. A to Somermeyer Aff. [Doc. No. 39].) As of January 1, 2012, Stark was 56 years old. (Catlett-King Decl. ¶ 7 [Doc. No. 40].) As a District Manager, Stark managed sales representatives and oversaw a sales territory in Minnesota. (Stark Dep. 25, 27, 40-41, Ex. A to Somermeyer Aff. [Doc. No. 39]; Stark Decl. ¶ 2 [Doc. No. 46].) In 2010, Nestle acquired Kraft's Frozen Pizza Division. (Catlett-King Decl. ¶ 4 [Doc. No. 40].) Nestle provides store delivery of pizza, ice cream, and other frozen foods on behalf of Nestle Dreyer's Ice Cream Company. (Id. at ¶ 3.) Nestle's employees perform sales activities at customers' retail locations, oversee delivery, monitor inventory, and manage the placement and rotation of Defendant's products. (Id.) At the time of Nestle's acquisition of Kraft's Frozen Pizza Division, Stark became a Nestle employee and his position title changed to District Sales Leader ("DSL"). (Spore Dep. 48-49, 59-60, Ex. B to Somermeyer Aff. [Doc. No. 39].) Also at that time, seven of Nestle's eight DSLs came from Kraft. (Id. at 76-77.) Initially, the DSLs' roles did not greatly change following the acquisition - they were primarily responsible for supervising sales representatives who made direct sales to customers from their trucks, stocking shelves, and placing products in stores. (Catlett-King Decl. ¶ 5 [Doc. No. 40].)

In 2011, Nestle began a complicated and difficult process of integrating its ice cream and frozen pizza direct store delivery operations. (Spore Dep. 93, Ex. B to Somermeyer Aff. [Doc. No. 39].) Through the frozen foods integration process, frozen pizza and ice cream would be sold from the same trucks as part of the same distribution chain. (Id.) Nestle undertook the integration of its pizza and ice cream operations in order to streamline the supply chain so that both products would be delivered at the same time, to the same store, on the same delivery route. (Catlett-King Decl. ¶ 4 [Doc. No. 40].) Nestle's General Manager of the North Central Region, Scott Agan, testified that the process of integration involved the implementation of new strategies, processes, and tools across Nestle's direct store delivery business. (Agan Dep. 164-65, Ex. C to Somermeyer Aff. [Doc. No. 39].)

Agan testified that the integration process caused the DSLs' role to undergo a "monumental, dynamic change." (Id. at 164-65; Spore Dep. 95, Ex. B to Somermeyer Aff. [Doc. No. 39].) DSLs were expected to perform a strategic role in leading and coaching sales representatives on matters such as selling opportunities, monitoring competitors, presenting products effectively, and strategically selling products. (Jaynes Dep. 34, Ex. E to Somermeyer Aff. [Doc. No. 39]; Agan Dep. 62-62, Ex. C to Somermeyer Aff. [Doc. No. 39].) In addition, the DSLs were to oversee delivery agents, merchandisers, sales representatives, and other front-line personnel within their assigned territories and were responsible for training front-line employees to ensure the consistent implementation of Nestle's sales strategies and promotional activities. (Agan Dep. 62-63, Ex. C to Somermeyer Aff. [Doc. No. 39].) Specifically, all DSLs were responsible for hiring and scheduling the front-line personnel, monitoring time cards, safety compliance, and other supervisory tasks. (Stark Dep. 79-89, Ex. A to Somermeyer Aff. [Doc. No. 39]; Spore Dep. 62-69, 73, Ex. B to Somermeyer Aff. [Doc. No. 39].) Nestle's Human Resources ("HR") Director Laurel Catlett-King testified that these duties required strong communication with front-line employees and Nestle leadership, along with an understanding of, and ability to prioritize, Nestle's business needs. (Catlett-King Dep. 36, Ex. F to Somermeyer Aff. [Doc. No. 39].)

Stark's view of the change, however, was more prosaic. He attests that his essential job remained the same, but "[w]hat changed in my job were the managers... and the new processes'" that he was told he "could not learn because of my age...." (Stark Decl. ¶ 2 [Doc. No. 46].) The post-integration roles of DSLs required more meetings, paperwork, conference calls, and email communications than Nestle had previously required of its DSLs. (Stark Dep. 79-89, Ex. A to Somermeyer Aff. [Doc. No. 39]; Spore Dep. 62-68, 73, Ex. B to Somermeyer Aff. [Doc. No. 39].) Among the new requirements, Nestle's DSLs were to implement a process called "Drivers for Growth, " or "D4G, " which required a number of regularly-scheduled meetings, or "work withs, " between DSLs and their sales representatives. (Agan Dep. 64-65, Ex. C to Somermeyer Aff. [Doc. No. 39].) Nestle required the DSLs to document their "work withs" in "flow books." (Id. at 64-65, 71-72.)

An Area Sales Leader ("ASL") supervised the DSLs. (Stark Dep. 95, Ex. A to Somermeyer Aff. [Doc. No. 39].) When Nestle acquired Kraft, Tom Kennedy, who had supervised Stark when he was employed by Kraft, continued to supervise all DSLs in Minnesota. (Id.) After Kennedy left the company in May 2011, Jeff Rauch served as the Interim ASL for Minnesota during most of the integration process. (Rauch Dep. 9, 14, 16, Ex. I to Somermeyer Aff. [Doc. No. 39].) Above the ASLs, Regional General Managers supervised all ASLs, DSLs, and front-line personnel in a given area. (See Agan Dep. 25-27, Ex. C to Somermeyer Aff. [Doc. No. 39].) In March 2011, Agan began working as General Manager of the North Central Region, which included Minnesota. (Id.)

A former Nestle ASL for Wisconsin, Kevin Moore, described the entire integration process as stressful, particularly for DSLs. (Moore Dep. 46, Ex. D to Somermeyer Aff. [Doc. No. 39].) Nestle's HR Director Catlett-King testified that because of the changes to the DSL position caused by Nestle's integration process, DSLs generally complained about the workload, new responsibilities, expectations for time spent with front-line employees, and the ability to accomplish these tasks in their regular work time. (Catlett-King Dep. 145, Ex. F to Somermeyer Aff. [Doc. No. 39].) Moore explained that while Kraft had been a demanding organization and that DSLs were used to working in a "high-expectations environment, " Nestle's new requirements for reporting and documenting activities were different. (Moore Dep. 47, Ex. D to Somermeyer Aff. [Doc. No. 39].) Specifically, Moore testified that DSLs were concerned about maintaining high-quality customer service in light of some of the changes caused by integration. (Moore Dep. 49-51, Ex. D to Somermeyer Aff. [Doc. No. 39].)

B. Age-Related Comments

As of January 1, 2012, Stark was 56 years old; the ages of all of the DSLs working for Nestle in Minnesota at that time were as follows:

Jackson, Stacey L. 43 Grimm, Patrick A. 46 Schmisek, David R. 49 Enockson, Blake A. 50 Compton, John W. 50 Spore, Leif O. 51 Dahl, David A. 56 Stark, Brian 56 Burg, Roger A. 62

(Catlett-King Decl. ¶ 7 [Doc. No. 40].)

Shortly after Agan became Regional General Manager in March 2011, he held a meeting attended by DSLs from Minnesota, including Stark, Spore, and Stacey Jackson, as well as Nestle's HR staff, including Amanda Sorrento and Jillian Jaynes. (Spore Dep. 176, 211-12, Ex. 10 to Lienemann Decl. [Doc. No. 47]; Stark Dep. 206, Ex. 11 to Lienemann Decl. [Doc. No. 47]; Jackson Dep. 12-16, Ex. 5 to Somermeyer Aff. [Doc. No. 39].) After exchanging introductions with the DSLs, which included reference to length of service, Agan commented that he was "alarmed" by the "age and tenure" in the room. (Spore Dep. 176, 184, 226, 265, Ex. 10 to Lienemann Decl. [Doc. No. 47], Stark Dep. 202, Ex. 11 to Lienemann Decl. [Doc. No. 47].) Although HR representatives attended the meeting, they said nothing in response to Agan's comments regarding age and tenure. (Spore Dep. 177, 265, Ex. 10 to Lienemann Decl. [Doc. No. 47]; Stark Dep. 202-06, Ex. 11 to Lienemann Decl. [Doc. No. 47].) Agan, who revealed that he had only remained in any given job for five to seven years, stated that managers should follow his example and "move up or move out." (Spore Dep. 184-86, 265, Ex. 10 to Lienemann Decl. [Doc. No. 47]; Stark Dep. 298, Ex. 11 to Lienemann Decl. [Doc. No. 47].) Agan's remarks about age and tenure concerned Spore and Stark, both of whom had been in their positions for more than twenty years. (Spore Dep. 15, 17-18, 20, 27-28, 186-87, 211-12, Ex. 10 to Lienemann Decl. [Doc. No. 47]; Stark Dep. 23-25, 27, 35, 298, Ex. 11 to Lienemann Decl. [Doc. No. 47].) In his deposition, Agan denied having made such comments about age and tenure. (Agan Dep. 42, Ex. 1 to Lienemann Decl. [Doc. No. 47].)

At the time of Agan's hire, Kennedy, who was in his 50s, was the ASL for Minnesota, a position that he had held for a number of years. (Stark Dep. 95, Ex. 11 to Lienemann Decl. [Doc. No. 47]; Spore Dep. 31, 42-46, 108, Ex. 10 to Lienemann Decl. [Doc. No. 47].) Shortly after Agan became Regional General Manager, Kennedy took a medical leave of absence. (Agan Dep. 32, Ex. 1 to Lienemann Decl. [Doc. No. 47].) Agan contacted Kennedy during his leave and offered a severance package, which Kennedy accepted. (Agan Dep. 32, Ex. 1 to Lienemann Decl. [Doc. No. 47].) Some time later, during a market tour with DSL Spore, Agan divulged that Kennedy had not left Nestle of his own accord. (Spore Dep. 148, Ex. 3 to Lienemann Decl. [Doc. No. 47].) Rather, Agan told Spore that Kennedy had left Nestle because he "did not have what it takes" and that he lacked the skill set to manage his team. Spore asked, "So [Kennedy] did not retire?" (Id. at 149.) Spore testified that Agan responded, sarcastically, "Well, you can call it what you want." (Id.)

In October 2011, Nestle hired Kenny Gilbert as the ASL for Minnesota. (Gilbert Dep. 18, Ex. 4 to Lienemann Aff. [Doc. No. 47].) Gilbert regularly expressed interest in the age and tenure of the DSLs. (See Stark Dep. 165-67, 299-300, Ex. 11 to Lienemann Decl. [Doc. No. 47].) He asked both Stark and Spore their respective ages and length of tenure with the company. (See Attachments to MDHR Charges, Exs. 28 & 29 to Lienemann Aff. [Doc. No. 47].) Stark testified that Gilbert badgered and verbally harassed him on a daily basis, frequently bringing up the issue of age, either directly or indirectly. (Stark Dep. 165-67, 299-300, Ex. 11 to Lienemann Decl. [Doc. No. 47].) Gilbert repeatedly told Stark that Stark lacked the right skill set to perform his job and was not capable of change. (Id.) In addition, Gilbert told Stark that while older, experienced managers could be trained, they would not be able to "maintain" because of ingrained bad habits. (Id. at 299-300.)

Former DSL Stacey Jackson testified that both Agan and Gilbert told the DSLs that Nestle preferred to hire young people straight out of college. (Jackson Dep. 16, Ex. 5 to Lienemann Decl. [Doc. No. 47].) Consistent with Jackson's testimony, former ASL for Wisconsin Moore believed that Nestle's corporate culture emphasized hiring new college graduates for entry-level management positions. (Moore Dep. 11, Ex. 7 to Lienemann Decl. [Doc. No. 47].) Moore testified that Agan was generally dissatisfied with the longevity of former Kraft Frozen Pizza Division employees. (Id. at 9-10.)

Lisa Sampson, an administrative employee in Minnesota who worked at the front desk as the Area Business Coordinator, testified that she occasionally heard Gilbert negatively comment about older employees getting injured, taking too long to perform tasks, and being stuck in their ways. (Sampson Dep. 7, 9, Ex. 9 to Lienemann Decl. [Doc. No. 47].) Because of the proximity of her work space to Gilbert's office, Sampson could overhear some of his conversations. (See id. at 16.) Following a roundtable meeting held by Gilbert with sales representatives who reported to Stark, Sampson overheard Gilbert state, "I kept asking them questions, but they wouldn't throw him under the bus." (Id. at 17-18.) Sampson also overheard Gilbert and Stark speaking to each other in loud voices, with Stark complaining that his district was receiving a disproportionate and unrealistic amount of work. (Id. at 16-17, 29.) Sampson further testified that Gilbert used a demeaning tone of voice when speaking to Stark. (Id.)

In addition to the age-related comments of Agan and Gilbert, Nestle's Safety, Health and Environmental Manager Ed Wozniak commented at meetings with DSLs about "performance managing out" habitually injured workers, because they cost the company too much money. (Spore Dep. 210, 215-16, Ex. 10 to Lienemann Decl. [Doc. No. 47].) Wozniak also stated that Nestle had inherited an aging workforce from Kraft (id.), and that older workers were more likely to be injured. (Jackson Dep. 14, Ex. 5 to Lienemann Decl. [Doc. No. 47].) Nestle's HR staff also commented about the "aging workforce." (Spore Dep. 217-19, Ex. B to Somermeyer Aff. [Doc. No. 39].)

Stark testified that ASL Agan demeaned him in other ways, by calling him "teacher's pet" and accusing him of "sucking up to the boss" in group meetings when he merely turned in requested paperwork. (Stark ...


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