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Witzke v. Pepsi Bottling Ventures, LLC

United States District Court, D. Maryland

September 19, 2018

SCOTT R. WITZKE, Plaintiff,
v.
PEPSI BOTTLING VENTURES, LLC, Defendant.

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge.

         Plaintiff Scott Witzke (“Plaintiff” or “Mr. Witzke”) alleges that his former employer, Defendant Pepsi Bottling Ventures, LLC (“Defendant” or “PBV”), terminated his employment because of his age. Plaintiff's Complaint (ECF No. 1) asserts one count of age discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.

         Pending now are Defendant's Motion for Summary Judgment (ECF No. 23) and Plaintiff's Motion for Leave to File a Reply (ECF No. 33). The parties submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, Plaintiff's Motion for Leave to File a Reply (ECF No. 33) is GRANTED, [1] and Defendant's Motion for Summary Judgment (ECF No. 23) is GRANTED. Accordingly, Judgment shall be ENTERED in favor of the Defendant.

         BACKGROUND

         I. Plaintiff's Work History

         Mr. Witzke began working for Pepsi Bottling Company of Salisbury in June 1984. (Pl. Dep. at 15-16, ECF No. 23-7.) In August 2004, Pepsi Bottling Ventures, LLC (“PBV”) purchased Pepsi Bottling Company of Salisbury, and Mr. Witzke began working for PBV at that time. (Id. at 18.) PBV manufactures, sells, and distributes Pepsi-Cola beverages and other products at multiple East Coast locations. (Niver Decl. ¶ 7, ECF No. 23-6.) Mr. Witzke worked out of Salisbury, Maryland, which is the headquarters of PBV's Northern Division. (Tull Decl. ¶¶ 7-8, ECF No. 23-2.) At all times, Mr. Witzke was employed at-will. (Pl. Dep. at 20-22, ECF No. 23-7; Def. Ex. H at 6, ECF No. 23-8; Tull Decl. ¶ 8, ECF No. 23-2.)

         Mr. Witzke worked primarily in sales positions throughout his PBV employment, working as a Food Service Representative (“FSR”) from 2009 through the end of his PBV employment. (Pl. Dep. at 18-19, ECF No. 23-7; Tull Decl. ¶ 8, ECF No. 23-2.) As an FSR, Mr. Witzke was responsible for sales and service to Food Service accounts, including restaurants, casinos, and establishments. (Pl. Dep. at 19-20, ECF No. 23-7; Def. Ex. H at 2, ECF No. 23-8; Tull Decl. ¶ 9, ECF No. 23-2.) Mr. Witzke received positive performance reviews for years. (See Witzke Performance Reviews, Pl. Ex. 1, ECF Nos. 26-1 to 26-3.)

         Throughout the course of his employment, Mr. Witzke was supervised by David Goslee, the Food Service Director for the Northern Division. (Pl. Dep. at 18-19, ECF No. 23-7; Goslee Decl. ¶ 5, ECF No. 23-5.) Mr. Goslee reported to both Mike Wood, Division Sales Director for PBV's Northern Division, and to Randy Quirk, Vice President of Food Service based out of PBV's corporate headquarters in Raleigh, North Carolina. (Quirk Decl. ¶¶ 5-7, ECF No. 23-4; Wood Decl. ¶ 4, ECF No. 23-3.) During the relevant time period, Mike Tull was the HR Manager for the Northern Division. (Tull Decl. ¶ 5, ECF No. 23-2.) Mr. Tull reported both to Mr. Wood and Claire Niver, PBV's Vice President of Human Resources and Corporate Affairs based out of the Raleigh corporate headquarters. (Id. at ¶ 6; Niver Decl. ¶¶ 4-6, ECF No. 23-6.)

         In 2015, PBV implemented a Customer Relationship Management Software (“CRM”) to provide an electronic method for collecting, preserving, and sharing customer-related information, referred to as “tribal knowledge.” (Quirk Decl. ¶ 27, ECF No. 23-4.)

         II. Plaintiff Turns 50 Years of Age

         On or about June 18, 2015, Mr. Goslee commented that he “had a lot of gray hair in the department” and “feels they are becoming complacent.” (Pl. Dep. at 91-93, ECF No. 23-7.) In August of 2015, Mr. Witzke informed PBV that he needed surgery for abdominal lumps. (Pl. Dep. at 87-90, 235-236, ECF No. 23-7.) On or about September 24, 2015, shortly after Mr. Witzke turned 50, Goslee commented that Mr. Witzke “was beginning to look weathered.” (Id. at 94-96.)

         III. Sales Incentive Program by Dr. Pepper Snapple Group

         While PBV sells and distributes Pepsi-Cola products, it also sells and distributes products by the Dr Pepper Snapple Group (“DPSG”). (Pl. Dep. at 40, 44, ECF No. 23-7.) From November 2, 2015 to February 19, 2016, PBV participated in a sales incentive program sponsored by DPSG (Id. at 39-40; Tull Decl. ¶ 14, ECF No. 23-2.) Under this incentive program, the PBV FSR who added the most new fountain valves for DPSG products would win a trip to Las Vegas to see the Academy of Country Music Award (“ACMA”) ceremony. (Pl. Dep. at 40, ECF No. 23-7; Tull Decl. ¶ 16, ECF No. 23-2.) For example, if an FSR persuaded a customer to install a new fountain using DPSG products at an account that did not previously have a fountain, the FSR would be credited with new fountain valve placement. (Tull Decl. ¶ 18, ECF No. 23-2.)

         Fountain beverages are made with a combination of water and product syrup (referred to as “BIB” or “Bag in Box”). (Pl. Dep. at 44, ECF No. 23-7; Tull Decl. ¶ 20, ECF No. 23-2.) PBV tracked new fountain valve placement for DPSG products by maintaining data showing when BIB for DPSG products had been ordered at an account that had not previously ordered BIB for DPSG products. (Tull Decl. ¶ 20, ECF No. 23-2.) Such an order suggested that a new valve placement had been made. (Id.)

         IV. The Harrington Order and Plaintiff's Termination

         Mr. Witzke was responsible for sales to the Harrington Raceway & Casino (“Harrington”), one of PBV's largest customers in the Northern Division. (Pl. Dep. at 40, ECF No. 23-7; Tull Decl. ¶¶ 10, 21, ECF No. 23-2.) Harrington's operations include a harness racing track, casino, and multiple locations with beverage service. (Pl. Dep. at 41, ECF No. 23-7; Tull Decl. ¶ 22, ECF No. 23-2.) Harrington therefore had several separate accounts with PBV, including a restaurant called BONZ, a Gift Shop, a convenience store called Grab-n-Go, an Employee Breakroom, a VIP lounge called the Black Diamond Lounge, and three separate Casino accounts. (Pl. Dep. at 41-42, ECF No. 23-7; Tull Decl. ¶ 23, ECF No. 23-2.) Some of these accounts did not have fountains or use BIB, including Grab-n-Go and the Gift Shop. (Pl. Dep. at 45, 47, 49, ECF No. 23-7; Tull Decl. ¶ 23, ECF No. 23-2.)

         D.J. Silicato was the Executive Director of Food and Beverage for Harrington, and he was one of Mr. Witzke's primary contacts at Harrington. (Pl. Dep. at 42, ECF No. 23-7; Tull Decl. ¶ 24, ECF No. 23-2.) Mr. Witzke informed Silicato of the DPSG incentive program and discussed the possibility of adding on new valves of product. (Pl. Dep. at 67-68, ECF No. 23-7.) On February 4, 2016, Silicato placed an email order (the “Order”) for DPSG BIB with Sandy Morris, PBV's Distribution Manager. (Def. Ex. H at 14, ECF No. 23-8; Tull Decl. ¶ 25, ECF No. 23-2.) The Order requested BIB for multiple Harrington accounts to be delivered on February 9. (Id.)

         On February 8, 2016, Ms. Morris forwarded the Order to Mr. Witzke and Mr. Goslee. (Def. Ex. H at 14, ECF No. 23-8.) She explained that she thought the Order was “strange” because: (i) it included an order for BIB for accounts that do not have fountains or use BIB, and (ii) it requested that the BIB for those accounts be delivered to the “pump-room” rather than to the account locations. (Id.) A few minutes after receiving Morris's email, Mr. Witzke responded, stating, “It [sic] all good. Let's send them.” (Id. at 17.)

         On February 11, 2016, Jenny Mead, a Promotions Supervisor with Harrington, sent an email to Ms. Morris, asking PBV to pick up the DPSG BIB that had been delivered to the Black Diamond Lounge because she believed it had been sent by mistake. (Id. at 21.) In response, Morris explained to Mead, copying Mr. Witzke and others on the email, that PBV would not pick up the BIB because it had been special ordered by Silicato. (Id. at 20.) Silicato then responded, confirming that he placed the order and stating that the BIB at issue was supposed to have been delivered to the pump-room. (Id.) Ms. Morris forwarded the foregoing emails to Mr. Wood, who forwarded them to Mr. Tull. (Tull Decl. ¶¶ 27, 32, 33, ECF No. 23-2; id. at 20-27; Wood Decl. ¶¶ 8, 12, 15, ECF No. 23-3.) In forwarding the emails, Morris told Wood, “FYI - what a cluster when you order BIBs so you can win an incentive.” (Def. B. at 26; Wood Decl. ¶ 13, ECF No. 23-3.)

         On February 19, Ms. Mead sent another email to Ms. Morris, noting that, in addition to the DPSG BIB that had been ordered for the Black Diamond Lounge, DPSG BIB had been ordered for the Gift Shop and was sitting in the warehouse. (Def. Ex. H at 23, ECF No. 23-8; Wood Decl. ¶ 16, ECF No. 23-3.) Morris responded, copying Witzke, Wood, Goslee, and others, and explained again that Silicato had special ordered this BIB for the Gift Shop. (Def. Ex. B at 30, ECF No. 23-2.) Mead then expressed her ongoing confusion about the Order given that Silicato had ordered BIB for the Black Diamond Lounge and the Gift Shop, accounts for which she was responsible. (Id. at 29.)

         In response, Ms. Morris forwarded to Ms. Mead the Order placed by Silicato. (Id. at 34-35.) Mead thanked Morris for the clarification and said that she would address the situation with her “bosses, ” asserting that “[t]his was just a confusion of cluster.” (Id. at 34.) Morris forwarded the email to Witzke, Goslee, Wood, and others, stating “What a fiasco.” (Id. at 33.) Plaintiff did not respond to any of these emails. (Pl. Dep. at 62-63, 72-73, ECF No. 23-7.)

         Mr. Wood forwarded the emails to Mr. Tull, and they discussed the situation. (Tull Decl. ¶¶ 41-42, ECF No. 23-2; id. at 29-35; Wood Decl. ¶¶ 17-19, ECF No. 23-3.) Specifically, Wood stated, “It appears the situation is blowing up! All over an incentive. BTW, I am waiting to see if David or Scott reply to the emails.” (Def. Ex. H at 40, ECF No. 23-8; Wood Decl. ¶¶ 17-18, ECF No. 23-3.) At Tull's suggestion, the emails were sent to Mr. Quirk, who shared their concerns. (Tull Decl. ¶ 43, ECF No. 23-2; id. at 45; Quirk Decl. ¶¶ 8-9, ECF No. 23-4; Wood Decl. ¶ 19, ECF No. 23-3.) Ms. Niver, PBV's highest ranking HR representative, was also informed of the situation. (Quirk Decl. ¶ 10, ECF No. 23-4; Niver Decl. ¶¶ 5, 9-10, ECF No. 23-6.)

         On or about February 26, 2016, Mr. Goslee reviewed with Plaintiff the sales data related to the Harrington accounts “to confirm the addition of fountain in those locations.” (Tull Decl. ¶ 46, ECF No. 23-2; id. at 51; Quirk Decl. ¶ 12, ECF No. 23-4; Wood Decl. ¶ 22, ECF No. 23-3.) Plaintiff did not tell Goslee to disregard the new Harrington valve placement data in connection with the incentive award. (Pl. Dep. at 66-67, 73-75, ECF No. 23-7; Goslee Decl. ¶¶ 11-12, ECF No. 23-5.) On February 26, 2016, Goslee reported to Wood and Tull that Plaintiff had reviewed the chart and had made no correction to the Harrington data, thereby seeking to take credit for new valve placements. (Tull Decl. ¶ 47, ECF No. 23-2; Wood Decl. ¶ 23, ECF No. 23-3; Goslee Decl. ¶¶ 11-13, ECF No. 23-5.)

         Mr. Wood, Mr. Quirk, Mr. Tull, and Ms. Niver discussed the situation and agreed to question Mr. Witzke and suspend his employment with pay as PBV completed its investigation. (Tull Decl. ¶ 48, ECF No. 23-2; Niver Decl. ¶ 11, ECF No. 23-6; Quirk Decl. ¶ 14, ECF No. 23-4; Wood Decl. ¶ 24, ECF No. 23-3.) Goslee, Wood, and Tull then met with Mr. Witzke, and Mr. Witzke admitted that he was trying to win the incentive award and explained that he did not believe that he had done anything wrong because the Order had been placed by Silicato, not him. (Pl. Dep. at 76-80, ECF No. 23-7; Tull Decl. ¶ 49, ECF No. 23-2; Wood Decl. ¶ 25, ECF No. 23-3; Goslee Decl. ¶ 13, ECF No. 23-5.)

         After the meeting with Plaintiff, Wood, Tull, and Goslee called Quirk and Niver to discuss the situation. (Tull Decl. ¶ 50, ECF No. 23-2; Niver Decl. ¶ 12, Def. F; Quirk Decl. ¶ 15, ECF No. 23-4; Wood Decl. ¶ 26, ECF No. 23-3; Goslee Decl. ¶ 14, ECF No. 23-5.) Each of them attests that, after considering the emails and other information related to Mr. Witzke's conduct, as well as the response provided by Mr. Witzke, they believed, inter alia, that Mr. Witzke had “attempted to personally benefit from the fraudulent Order to the detriment of his co-workers.” (Tull Decl. ¶ 51, ECF No. 23-2; Niver Decl. ¶ 13, ECF No. 23-6; Quirk Decl. ¶ 16, ECF No. 23-4; Wood Decl. ¶ 27, ECF No. 23-3; see Goslee Decl. ¶ 14, ECF No. 23-5.) Based on their investigation, they all agreed that Mr. Witzke's PBV employment should be terminated. (Tull Decl. ¶ 52, ECF No. 23-2; Niver Decl. ¶ 14, ECF No. 23-6; Quirk Decl. ¶ 17, ECF No. 23-4; Wood Decl. ¶ 28, ECF No. 23-3; Goslee Decl. ¶ 14, ECF No. 23-5.) On February 29, 2016, Mr. Witzke was informed of the termination decision. (Pl. Dep. at 80-85, ECF No. 23-7; Tull Decl. ¶ 56, ECF No. 23-2.) Mr. Witzke was 50 years of age at the time of his termination. (Pl. Dep. at 84, ECF No. 23-7.) PBV does not dispute that it billed for, accepted, and kept payment for the Order. (See Def. Ex. H at 27, ECF No. 23-8; Def.'s Reply at 13, ECF No. 29.)

         V. PBV Fills Plaintiff's Position

         On March 1, 2016, PBV internally posted the vacant FSR position previously held by Mr. Witzke. (Tull Decl. ¶ 59, ECF No. 23-2.) Three current PBV employees applied for this vacant FSR position: (i) Chris Smith (born 1976), (ii) Colin Brittingham (born 1990), and (iii) Alexander Rohoman (born 1989). (Tull Decl. ¶ 59, ECF No. 23-2.) PBV interviewed Mr. Smith and Mr. Brittingham, and Mr. Goslee selected Smith, the oldest of the three applicants, for the FSR position. (Goslee Decl. ¶ 19, ECF No. 23-5; Tull Decl. ¶ 60, ECF No. 23-2.) Before Smith assumed that FSR position, however, Goslee resigned, leaving the Food Service Director position vacant. (Tull Decl. ¶ 61, ECF No. 23-2; Pl. Dep. at 148-49, ECF No. 23-7.) PBV then selected current PBV employee Edward Morris (born 1963) to fill Mr. Goslee's position, leaving Mr. Morris's Account Development Representative (“ADR”) position vacant. (Tull Decl. ¶ 62; Pl. Dep. At 150.) Smith then was selected to fill the ADR position[2] vacated by Mr. Morris. (Tull Decl. ¶ 63, ECF No. 23-2.) PBV then selected Brittingham to fill the FSR position Smith initially had been selected to fill, and Brittingham assumed the FSR position, effective May 22, 2016. (Tull Decl. ¶¶ 64-65, ECF No. 23-2.)[3]

         STANDARD ...


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