Cornwell v. Dairy Farmers of America, Inc.

369 F.Supp.2d 87

Ronald J. CORNWELL, Plaintiff, v. DAIRY FARMERS OF AMERICA, INC., et al., Defendants.

No. CIV.A. 03-11208-NMG.

United States District Court, D. Massachusetts.

March 30, 2005.

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Patrick J. Bannon, Berin S. Romagnolo, Gadsby & Hannah LLP, Boston, MA, John E. Murray, Cook & Franke S.C., Milwaukee, WI, for American Dairy Brands, Dairy Farmers of America, Inc., James E. Degiorgio, Michael R. Willis, Defendants.

Mark B. Dubnoff, Timothy P. Van Dyck, Edwards & Angell, LLP, Boston, MA, Kevin E. Hyde, Jonathan W. Oliff, Foley & Lardner LLP, Jacksonville, FL, for Acosta Sales and Marketing, Charmaine Derosa, Defendants.

Michael A Zeytoonian, Hutchings, Barsamian, Cross and Mandelcorn, LLP, Wellesley Hills, MA, for Ronald J. Cornwell Plaintiff.

ORDER ADOPTING REPORT AND RECOMMENDATIONS

GORTON, District Judge.

Order Adopting Report and Recommendations. After consideration of plaintiff's objections thereto (Docket No. 62), Report and Recommendation is accepted and adopted. Action on motion allowed.

REPORT AND RECOMMENDATION ON MOTIONS FOR SUMMARY JUDGMENT

DEIN, United States Magistrate Judge.

I. INTRODUCTION

The plaintiff Ronald J. Cornwell ("Cornwell") was employed as a salesman by the defendant Dairy Farmers of America, Inc. ("DFA"),¹ a company which produces and markets a variety of cheese products, including some under the Borden label. The defendant Acosta Sales and Marketing ("Acosta") is a broker for DFA products, and the defendant Charmaine DeRosa ("DeRosa") is employed by Acosta.² Allegedly following complaints by DeRosa about Cornwell's behavior, Acosta complained to DFA and DFA eventually terminated Cornwell's employment. Cornwell has brought suit against DFA claiming age discrimination in violation of Mass. Gen. Laws ch. 151B, § 4(1B) and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-23 and 631; disability discrimination in violation of Mass. Gen. Laws ch. 151B, § 1(17) and the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-2 and 12111; and retaliation in violation of state and federal law. He has also brought suit against Acosta and DeRosa alleging claims for defamation and tortious interference with a contractual relationship.

This matter is presently before the court on DFA's motion for summary judgment (Docket # 36) and on Acosta and DeRosa's motion for summary judgment (Docket # 41). For the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that both motions for summary judgment be ALLOWED.

II. STATEMENT OF FACTS³

Cornwell's Employment with DFA

Cornwell was born on February 15, 1948. (DFA ¶ 6). He began working for DFA's predecessor, Borden Foods, in April, 1972. (Amended Complaint ("Compl.") ¶ 15; DFA ¶¶ 3, 5). He continued to work for DFA after DFA acquired Borden Foods in 1997. (DFA ¶ 2). Cornwell worked in sales throughout his employment with Borden and DFA. (DFA ¶ 7). He remained with DFA until November 30, 2001, when his employment was involuntarily terminated. (Compl. ¶ 15; Murray Aff. Ex. 27).

DFA is in the business of producing and marketing a variety of cheese products. (DFA ¶ 3). DFA sells products under the Borden label (known as branded dairy products) and under the brand name of the retailer who resells them to consumers (known as private label products). (DFA ¶¶ 3-4). Acosta is a sales and marketing company that serves as a broker, or the sales force, for manufacturers in the food and consumer packaged goods industry, such as DFA. (Acosta ¶ 1). Acosta works with its customers, such as DFA, to place DFA's products in retail stores. (Id.).

For much of his career, Cornwell sold DFA's private label products. (DFA ¶ 8). He reported to Ed Dowd ("Dowd"), DFA's Director of Private Label Sales, who, in turn, reported to Jim DeGiorgio ("DeGiorgio"), Vice President of Sales. (DFA ¶¶ 21, 22). Cornwell consistently received positive reviews and evaluations from Dowd. (See DFA ¶ 9). As DFA itself explains, "[p]rivate label sales fit well with Mr. Cornwell's personality and people skills. Private label sales frequently depend upon strong personal relationships with the customer. Mr. Cornwell was able to develop and maintain positive relationships with these clients." (DFA ¶ 9, internal citations omitted).

The Reorganization of DFA's Sales Force

In 2000, DFA reorganized its sales force so as to have one salesperson per retail customer, instead of one salesperson discussing private label sales and a different salesperson speaking to the same customer about branded sales. (DFA ¶ 10). This required Cornwell to sell branded products, which involved different presentation skills and a more in-depth understanding of market trends and sales. (See, e.g., DFA ¶¶ 11-20). As Cornwell explained, "[t]his shift in Plaintiff's duties and responsibilities also called upon Plaintiff to interface more with the brokers who worked with DFA on the branded side of the business and to utilize the software and programming technology, which was used more so for the branded side of the business." ("Plaintiff's Memorandum of Law in Support of Plaintiff's Opposition to Summary Judgment Motion of Defendants Dairy Farmers of America, Inc. and American Dairy Brands" (Docket # 45) ("Plaintiff's Mem.") at 16). With this change, Cornwell started reporting to Mike Willis ("Willis") instead of Dowd. (DFA ¶ 24). Willis, like Dowd, reported to DeGiorgio. (DFA ¶ 25). DFA traces Cornwell's difficulties with the company to this change in management and resulting change in expectations. (See DFA ¶ 142). For his part, Cornwell contends that Willis and DeGiorgio "harassed the plaintiff on the basis of his age and/or his disability," "created a hostile work environment" and treated him differently than other similarly situated employees. (Compl.¶¶ 28-29). As detailed below, however, Cornwell has failed to put forth sufficient facts to support these claims.

In May and June 2001, DFA hired Acosta to take over DFA's brokerage business, which had formerly been handled by Marketing Specialists, a broker that had gone bankrupt. (PF ¶ 15). The decision to hire Acosta was made by DeGiorgio, Willis and Jeff Jones of DFA. (PF ¶ 16). As part of the transition, Willis also arranged for two former Marketing Specialists employees, Ernest Vespole and the defendant DeRosa, to join Acosta. (PF ¶ 17). Moreover, during this transition, DFA loaned Acosta $200,000 to assist Acosta with cash flow and past salaries for some of the Marketing Specialists employees who were joining Acosta. (PF ¶ 19). Cornwell points to this close relationship between DFA and Acosta as support for his contention that DFA's stated reasons for terminating his employment, i.e., complaints from Acosta, were pretextual. (See Plaintiff's Mem. at 4).

Cornwell's Automobile Accident

In 1999 Cornwell was in a car accident. (DFA ¶ 91). According to Cornwell, as a result of the accident he "suffered a disability, consisting of the conditions of depression, anxiety and Post Traumatic Stress Disorder (`PTSD')," in addition to some shoulder injuries. (Id.; Compl. ¶ 26). Following the accident, Cornwell had concerns about traveling at night or in inclement weather. (DFA ¶ 93). DFA, through Dowd, was able to accommodate him by reducing his travels in these conditions. (DFA ¶ 93). In 2000, when Cornwell began reporting to Willis, Cornwell explained that he had difficulty traveling at night or in inclement weather. (DFA ¶ 94). According to DFA, Willis and DeGiorgio expressed a willingness to accommodate Cornwell's concerns, but Cornwell did not request any accommodations. (DFA ¶¶ 94-98). According to Cornwell, DeGiorgio told Willis that "we would need to make a change" to accommodate Cornwell's need, meaning that they would need to make a change so that Cornwell would not have to travel. (See Plaintiff's Mem. at 8; Murray Aff. Ex. 6 ("DeGiorgio Dep.") at 33-34). Willis allegedly conveyed this information to Cornwell. (Plaintiff's Mem. at 8). Cornwell contends that he understood this to mean that he would be terminated, so he did not ask for any accommodation. (Plaintiff's Mem. at 8-9). The plaintiff has not addressed whether or not he actually was obligated to travel at night or in inclement weather after Willis became his supervisor. In any event, even absent any accommodation Cornwell believed that he continued to do his job very well. (DFA ¶ 100).

The Initial Decision to Terminate Plaintiff's Employment

It is undisputed that by May or June 2001, DFA had contemplated terminating Cornwell's employment. (PF ¶ 1; DeGiorgio Dep. at 15-16; Murray Aff. Ex. 33). DFA had advised American Dairy Brands that it had to reduce its expenses by reducing its personnel costs. (DFA ¶ 73). DFA believed that American Dairy Brands was overstaffed and it was pressuring American Dairy Brands to reduce its "head count." (DeGiorgio Dep. at 13-15).⁴ DeGiorgio identified two employees — Dave Lavely (in his 30's) and Cornwell (age 53) — as candidates for termination. (DFA ¶¶ 77-78). DeGiorgio recommended that Cornwell be terminated by July 16, 2001 due to performance issues. (DFA ¶ 79-83; Murray Aff. Ex. 33). For example, according to DeGiorgio, Cornwell was one of the worst regional business managers in reconciling deductions given to customers, an important component in determining DFA's profitability. (DFA ¶¶ 80-82; Murray Aff. Ex. 37). Nevertheless, when DeGiorgio recommended that Cornwell be terminated, Sherri Flaker ("Flaker"), the Director of the Human Resources Department ("HR") at DFA, refused to approve the termination. (PF ¶ 2). As Flaker explained, Cornwell had indicated that he was going to sue the company if he was fired, he was in a protected age category and he had an open worker's compensation claim arising from the 1999 car accident. (Id.; DFA ¶¶ 85-90).⁵ Also Cornwell was a long time employee and there were no...