Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

PEPE v. RIVAL CO.

December 15, 1999

PATRICK PEPE, PLAINTIFF,
v.
RIVAL COMPANY, A CORPORATION DEFENDANT.



The opinion of the court was delivered by: Lechner, District Judge.

    OPINION

Plaintiff, Patrick Pepe ("Pepe") filed a complaint in the Superior Court of New Jersey, Law Division, Union County (the "Complaint"), against the defendant, the Rival Company ("Rival"), alleging age discrimination under the New Jersey Law Against Discrimination (the "NJLAD"), N.J.S.A., 10:5-1, et seq., breach of an express and/or an implied employment contract and breach of the covenants of good faith and fair dealing. Rival filed a notice of removal (the "Notice of Removal") pursuant to 28 U.S.C. § 1446 (a); diversity jurisdiction was asserted pursuant to 28 U.S.C. § 1332

Currently before the Court is a motion for summary judgment (the "Motion for Summary Judgment"), filed by Rival.*fn1 For the reasons set out below, the Motion for Summary Judgment is granted.

Facts

A. Parties

Pepe resides in New Jersey. See Complaint; Notice of Removal ¶ 3. Pepe was employed by Rival from 1989 to 1998. See Complaint, First Count ¶ 1; Plaintiff's Rule 56.1 Statement ¶¶ 1, 62. Pepe was initially employed as a district sales manager ("District Sales Manager") and was later promoted to senior district sales manager ("Senior District Sales Manager") in the Rival Kitchen Sales Organization (the "Kitchen Sales Organization").*fn2 See Complaint, First Count ¶ 1; Plaintiff's Rule 56.1 Statement ¶¶ 1, 62.

Rival is a Delaware corporation with its principal place of business in Missouri. See Notice of Removal ¶ 4. Rival sells various product lines, including a line of kitchen appliance. See Moving Brief at 1. Rival sells its product lines to retail customers which include department stores, distributors and certain national stores such as Wall-Mart K-Mart and Target. See Deposition of Mark Bittner ("Bittner Dep.") at 175.

B. Background

1. Allegations

Pepe contends Rival is liable under the NJLAD, because his termination was allegedly motivated by age. See Complaint, First Count ¶¶ 11, 13. Pepe also alleges Rival is liable for breach of either an express and/or implied employment contract based upon his membership in a so-called Secular Trust (the "Secular Trust"), a pension plan offered to select Rival employees, and/or an employment handbook Rival sent to him the beginning of his employment. See id. at Second Count, ¶¶ 3, 4. Finally, Pepe alleges Rival breached covenants of good faith and fair dealing in connection with his alleged employment contract See id. at Third Count, ¶ 2.

2. Initial Employment with Rival

In 1989, Pepe joined Rival as a District Sales Manager responsible for a territory which included New York, New Jersey and parts of New England (the "New York Territory"). See Pepe Cert. ¶ 1. Upon commencing employment at Rival, Pepe did not sign an employment contract. See Deposition of Patrick Pepe ("Pepe Dep.") at 191; Defendant's Rule 56.1 Statement ¶ 2.

Once Pepe began his employment, Rival sent a copy of The Rival Company Sales, Administrative & Clerical Associates Handbook (the "Rival Associate Handbook") to his home in New Jersey. See Pepe Cert. ¶ 45. Pepe stated he relied on the Rival Associate Handbook "as outlining company policy." Id. at ¶ 48. However, after receiving the Rival Associate Handbook, Pepe stated he reviewed the portions "which seemed important." Id. at ¶ 46. Pepe stated he reviewed "portions relating to performance and benefits." Id.

The Rival Associate Handbook included a section titled the Associate Handbook Statement ("Associate Handbook Statement"). See Rival Associate Handbook at 2. Appearing on page two of the Rival Associate Handbook following a message from the President of Rival, the Table of Contents and the Company Mission Statement, the Associate Handbook Statement provides:

  This Rival Associate Handbook is by no means intended
  to cover every facet of the Associate-Employer
  relationship. Regardless of the manner or duration of
  the Associate's compensation, nothing contained herein
  shall create employment for a definite term and the
  statements made herein are simply general statements
  of THE RIVAL COMPANY ("THE COMPANY") policy. Without
  prior notice and at any time for any reason, the
  Company specifically reserves the right to:

1. MODIFY THESE POLICIES,

  2. APPLY THEM IN A MANNER THAT RETAINS DISCRETION IN
  THE COMPANY, OR

3. REFRAIN FROM APPLYING THESE POLICIES

  Associates may terminate their employment without
  prior notice at any time for any reason, The Company
  may do the same. All oral statements made at any time
  regarding employment and any written employment
  rules, statements, policies or Rival Associate
  Handbooks of any form or nature issued prior to this
  manual are hereby revoked. The Company's policies may
  not be changed except in writing by the President of
  The Company.

Id. (emphasis added). Pepe admitted he did not read the Rival Associate Handbook Statement; he stated that nothing about the page "made it seem any more important than the first few pages that went before it." Pepe Cert. at ¶ 47.

Pepe asserts he interpreted the Rival Associate Handbook as "containing promises of the company with respect to many things including promotion, transfer, corrective action, and termination." Id. The Promotions and Transfers section of the Rival Associate Handbook reads:

  It is the policy of The Rival Company to fill
  vacancies wherever possible by transfer or
  promotions. The best qualified individual will be
  selected. Primary consideration will be given to
  qualified associates when trying to fill vacancies.
    • Those who apply will be considered on the
      basis of ability, experience, overall job
      performance and attendance. Screening interviews
      will be done by the Personnel Manager with the
      interviewing supervisor making the final
      selection.
    • If there are no qualified applicants for the
      job within Rival, it will be filled by other
      means. The Personnel Department will notify all
      applicants when a position has been filled.

Rival Associate Handbook at 17.

The Corrective Action Procedure section of the Rival Associate Handbook provides:

  From time to time, problems arise that relate to
  attendance, work performance or disruptive behavior.
  Every associate will be given the opportunity to
  correct such problems. Corrective actions will follow
  a 3-step plan:

Step # 1 — Counseling

  Your supervisor will counsel you about the problem.
  They [sic] will work with you to correct the problem.
  This will be considered your "Verbal Warning." If the
  problem is corrected nothing further will be said. It
  will not be held against you in any way.

Step # 2 — Written Warning

  Should the problem continue, your supervisor will
  counsel you again. They [sic] will put a statement of
  the problem in written form, a copy of which will go
  to your personnel file. Receipt of a written warning
  automatically places you on thirty (30) days
  probation. Your signature is required on this form as
  acknowledgment that you have read and understand the
  form. If the problem continues, the supervisor is
  required to move you to Step #3.

Step # 3 — Termination

  To insure fair play, no terminations under this policy
  are permitted without the approval of the department
  head. No one will be terminated without every possible
  assistance and fair warning.

Id. at 20. Pepe argues, based upon the Corrective Action Procedures listed in the Rival Associate Handbook, he had an implied employment contract that he would not be terminated without cause. See Opposition Brief at 35. Further, Pepe states no one at Rival ever told him he was an at-will employee. See Pepe Cert. ¶ 48. Nevertheless, at page two of the Rival Associate Handbook it is clearly, plainly stated that:

 . . . [N]othing contained herein shall create
  employment for a definite term Associates may
  terminate their employment without prior notice at any
  time for any reason, The Company may do the same.

Rival Associate Handbook at 2.

3. Employment 1989-1997

In 1992, Pepe was promoted to Senior District Salts Manager. See id. at ¶ 4. The Senior District Sales Manager position involved "supervising a [D]istrict [S]ales [M]anager, selling Rival's products, increasing the number of customers and sales volume in the territory, implementing pricing and advertising programs that were approved by senior management, controlling find administering the advertising budget," communicating with the home office and maintaining good customer relations for Rival in the New York Territory. Id. at ¶ 5.

4. Performance at Rival

During the first eight years of his tenure at Rival, Pepe was supervised and reviewed by Karl Zehner ("Zehner"). See Plaintiff's Rule 56.1 Statement at ¶ 14. Zenner testified that he received "a lot of feedback" from Pepe and probably spoke to him every day. Zehner Dep. at 36. Zehner also testified that Pepe expanded both the volume of sales and the customer base of the New York Territory. See Zehner Dep. 32; see also Pepe Cert. ¶ 8.

Under the heading "Teamwork" the 1996 Bonus Review stated:

  Pat did a fair job on teamwork goal with Federated.
  Communication better at end of the year, but needs
  much improvement with other associates calling on
  Federated. Pat must focus on reestablishing Rival as
  [sic] major vendor for Federated.

1996 Bonus Review.

Zehner described advertising administration as an area from which District Sales Managers "could make contributions to profitability of the company." Zehner Dep. at 30. Zehner complimented Pepe on advertising administration and commented, that during his last few years at Rival, Pepe "was under budget" for New York Territory advertising. Id. Pepe contends Cindy Francis ("Francis"), Director of Advertising, consistently complimented him on his advertising administration. See Pepe Cert. ¶¶ 25, 27.

According to Manning, Pepe turned in the worst performance of all Rival District Sales Managers in advertising administration. See Manning Dep. at 108-109. When asked about administration skills in general, Manning described Pepe as "not somebody that you'd count on." Id. In addition, various other members of Rival senior management criticized Pepe concerning his administrative and communication skills. See Deposition of Stanley Biggs ("Biggs Dep.") at 75-86 (discussing Pepe's deficient computer skills and Pepe's failure to respond to administrative inquiries from Francis and himself); Francis Dep. at 9-12, 47-54 (noting that Pepe did not timely cancel his "ad reqs" and had a greater problem with administrative issues than other Rival salespeople).

5. The Secular Trust

In 1996 Pepe was invited to participate in the Secular Trust, a pension plan established for highly compensated Rival personnel. See Pepe Cert. 9155; Manning Dep. at 78-79; Biggs Dep. at 87. Rival made a contribution to the Secular Trust for each plan participant equal to twelve percent of his or her yearly salary. See Pepe Cert. ¶ 55.

Pepe argues his inclusion in the Secular Trust ensured his employment with Rival until his retirement. See Opposition Brief at 37; see also Pepe Cert. ¶ 57; Pepe Dep. at 307. Pepe asserts Manning told him inclusion in the Secular Trust guaranteed "a comfortable retirement from Rival." Pepe Cert, ¶ 56. Pepe also asserts William Endres ("Endres"), then the Vice President of Sales, described the Secular Tust as a "great experience" and told Pepe "[y]ou have a long and enhanced opportunity until retirement to be here." Pepe Dep; at 307.

The Secular Trust Agreement (the "Secular Trust Agreement"), which Pepe asserts provided an express or implied employment contract, does not contain any assurances concerning employment at Rival. See Secular Trust Agreement; see also Manning Dep. at 80; Biggs Dep. at 87. On the first page, the Secular Trust Agreement identifies its purpose — to act as a retirement plan. See Secular Trust Agreement at 1. In the definition section, the Secular Trust Agreement defines a "Terminated Participant" as "a person who has been a Participant, but whose employment has been terminated other than by death." See id. at 8.

Further the Secular Trust Agreement provides for a determination of benefits when a participant terminated his or her participation for reasons other than death. See id. The Secular Trust Agreement indicates the time for distribution of benefits. The provision provides:

  Except as limited by Sections 5.4 and 5.5,  whenever
  the Trustee is directed, pursuant to this Agreement,
  to make a distribution, the distribution may be made
  as soon thereafter as practicable, but in no event
  later than the 60th day after the close of the Plan
  Year in which the latest of the following events
  occurs: (a) the date on which the Participant attains
  the earlier age of 65 or the Normal Retirement Age
  specified herein; (b) the 10th anniversary of the year
  the Participant commenced participation in the Plan;
  or (c) the date the Participant terminates his or her
  service with the Company.

Id. at 13.

The Secular Trust Agreement also has a choice of law provision titled "Governing Law." Id. at 22. The choice of law provision states: "To the extent not preempted by the Employee Retirement Income Security Act, this Trust Agreement and the Trusts created herein shall be construed, regulated and administered under the laws of the State of Missouri. . . ." Id.

Pepe admitted no member of Rival management told him participation in the Secular Trust would guarantee his employment until retirement. See Pepe Dep. at 306. Pepe further admitted he did not read the terms of the Secular Trust Agreement until after he was terminated. See id. at 185-186, 189-190. Pepe also admitted he knew at least one member of the Secular Trust, Endres (Vice President of Sales), who was fired by Rival. See id. at 190. When asked during his deposition if he believed his inclusion in the Secular Trust meant he could not be fired "[u]nder all circumstances," Pepe answered:

    Well, I don't think anybody, anyone would think
  under all circumstances. I would think if I continued
  to perform my duties as I've been in the past and
  planned on continuing to do in the future and
  continued to get good job reviews and perform as I was
  performing, then I would be there [at Rival] until
  65.

Id. at 307.

6. Changes in Rival Management

Zehner voluntarily resigned from Rival on 25 October 1997; at that time Witter and Scott Royal-Ferris ("Royal-Ferris"), took over the responsibility of supervising both Pepe and Philip Pruner, the District Sales Manager for the Ohio territory. See Plaintiff's Rule 56.1 Statement ¶¶ 20-21. About two weeks later, in early November 1997, Royal-Ferris informed Pepe of his intention to terminate Thomas Frain ("Frain"), The District Sales Manager whom Pepe supervised. See id. at ¶ 22.

Pepe complained about the change because the New York Territory always had been covered by at least two District Sales Managers. See id. at ¶¶ 23-24; see also Pepe Cert. ¶ 34. In addition, Frain had been responsible for calling on most of the smaller retailers, which allowed Pepe to focus his efforts on the larger accounts in the territory, including I. Lehrhoff & Company ("Lehrhoff"). See Plaintiff's Rule 56.1 Statement ¶ 22; see also Pepe Cert. ¶ 34. On 5 December 1997, Frain was terminated and Pepe became responsible for the New York Territory. See Plaintiff's Rule 56.1 Statement ¶¶ 25-26.

Pepe argues the termination of Frain was part of a scheme "to expose him" and "lead to his termination." Id. at ¶ 27 (citing Witter Dep. at 99); see also Opposition Brief at 5. Accurately stated, Witter testified the decision to fire Frain was motivated by three factors — (1) the declining sales volume in the New York Territory no longer supported both positions, (2) Rival management did not believe "they were getting the most out of [Frain]" and (3) Royal-Ferris wanted to show Pepe was working only for Lehrhoff and to "uncover a lot that [Pepe] was not doing." Witter Dep. at 99. Witter further testified the change was not designed to make Pepe fail, but rather "to see how [Pepe would) respond to the bigger challenge" of calling on other customers in the New York Territory. Id.

Pepe states that after the firing of Frain, Stan Biggs ("Biggs"), Vice-President and Treasurer of Rival, and Witter began "harassing him with questions and criticizing him" regarding various aspects of his advertising administration. Pepe Cert. ¶ 18; Plaintiff's Rule 56.1 Statement ¶ 28.

Following Zehner's departure, members of Rival management began to question Pepe about the New York Territory advertising. See, e.g., Biggs Dep. at 82-86; Witter Dep. at 39. Biggs requested Pepe start following company policy by submitting dealer debits, documentation which proves that an advertisement has been run. See Biggs Dep. at 82-84. In addition, Witter and Biggs both questioned the practice Pepe employed of allocating advertising money from smaller accounts to Lehrhoff. See id. at 85-86; see also Witter Dep. at 39 ("[t]here were some questions about the advertising of the New York market.").

Biggs and other members of Rival senior management thought Pepe was focusing on one particular account, the Lehrhoff account, to the exclusion of other accounts in the New York Territory. See Biggs Dep. at 89; Deposition of William Yager ("Yager Dep.") at 23-24. William Yager ("Yager"), President and Chief Operating Officer of Rival, testified he believed Pepe was "working" for Lehrhoff. See Yager Dep. at 23. Biggs stated he believed Pepe was loyal to Lehrhoff and not Rival. See Biggs Dep. at 89.

Biggs testified Pepe had shown Arthur Lehrhoff, the Chief Executive Officer of Lehrhoff, a confidential internal pricing memorandum, addressing "special deals" on pricing. See id. Pepe argues he did not give the confidential memorandum to anyone at Lehrhoff. See Plaintiff's Rule 56.1 Statement ¶ 47. Pepe offered the testimony of Arthur Lehrhoff, who stated he took the memorandum from Pepe's desk. See Lehrhoff Cert. ¶ 9.

Pepe contends the criticism concerning his advertising administration represented a departure from previously accepted practices at Rival. See Pepe Cert. ¶¶ 21, 24. Specifically, Pepe argues his continued receipt of the maximum advertising bonus and comments by his previous supervisor, Zehner, demonstrate his skill in advertising administration. See Opposition Brief at 2; Pepe Cert ¶ 25; see also Zehner Dep. at 30. Further, Pepe argues that he was consistently under budget and received compliments concerning his advertising administration. See Opposition Brief at 2-3; Pepe Cert ¶ 25.

7. Reorganization

On 1 April 1998, Mark Bittner ("Bittner") was hired by Rival as the Vice President of Sales. See Bittner Dep. at 37. Before joining Rival, Bittner had reorganized the sales organization of thirteen other companies. See id. at 158. At the outset, it is important to recognize that Pepe has failed to offer any evidence, or even argue, Bittner had any motivation to harm Pepe or otherwise terminate him for Rival other than for legitimate, non-discriminatory business reasons.

During his first few weeks of employment, Bittner reviewed the existing sales structure and determined a reorganization would benefit Rival. See id. at 46, 119-120. Bittner believed Rival should focus more on national accounts. See id. at 48. Specifically, Bittner believed Rival would achieve greater sales by replacing the District Sales Manager positions with outside sales representative agencies which would be paid only for the sales they generated. See id. at 176-719. Bittner planned "to eliminate all of the direct selling positions that did not entail national accounts." See id. at 49. Bittner presented his ideas to Yager and Manning, both of whom agreed with his proposed reorganization (the "Reorganization"). See id. at 46-48; Yager Dep. at 15-16, 20. Significantly, Pepe does not contest the fact that the Reorganization occurred.

During the decision-making stage of the Reorganization, Bittner questioned the strength of three markets, those covered by Pepe (then age 47), Paul Curlett ("Curlett") (then age 57) and Phil Lapenta ("Lapenta") (then age 35). See Bittner Dep. at 136; Butler Cert. ¶ 2. He recommended terminating all three employees based on the decline in revenue in all three territories. See Bittner Dep. at 136.

Yager and Manning agreed with Bittner's assessment of Pepe and Lapenta, but disagreed concerning Curlett. See Yager Dep. 16-17, 23-24, 33; Manning Dep. at 33. Yager believed Curlett should not be terminated because Curlett "deserved a chance to be accountable in the future." Id. at 16-17. Manning felt that Curlett should be retained because companies in his territory had "disappeared" and many "key accounts . . . were no longer in business." Manning Dep. at 34. Manning did not know enough to judge Bittner's evaluation of Lapenta.*fn3 See id. at 37-38. As a result of the Reorganization, all seven District Sales Manager positions were replaced with outside sales representative agencies. See Bittner Dep. at 49. These outside sales representative agencies handle the customers previously serviced by the District Sales Managers. See id. This replacement decreased Rival's costs because, unlike the District Sales Managers, the outside sales representative agencies were not on Rival's payroll. See id. at 178-179.

8. Regional Sales Manager Position

The Reorganization eliminated all of the District Sales Manager, Field Sales Manager and the National Account Manager positions at Rival and created the new Regional Sales Manager positions. See Bittner Dep. at 47-49. Bittner explained that there was a "world of difference" between the District sales Manager position and the Regional Sales Manager position. Id. at 167.

The Regional Sales Manager job was not a selling position. See id. The Regional Sales Manager position was supervisory in nature, involving the hiring and overseeing of outside sales representative agencies. See id. at 164; see also Pruner Dep. at 118. Customer contact, which represented a significant portion of the District Sales Managers' time would be primarily handled by outside sales representative agencies. See Defendant's Rule 56.1 Statement ¶ 48; Bittner Dep. at 174; Manning Dep. at 107. The Militti Group and Synergy Sales were retained to call on customers in areas covered by the New York Territory. See Defendant's Rule 56.1 Statement ¶ 48; Bittner Dep. at 174; Manning Dep. at 107.

Regional Sales Managers covered a more extensive area than District Sales Managers. See Bittner Dep. at 164; see also Pruner Dep. at 118. For example, the Regional Sales Manager position, which Pepe claims he should have been appointed to, supervised accounts in Michigan, Ohio, Pennsylvania, New York, New Jersey, Vermont, New Hampshire, Massachusetts, Connecticut, Rhode Island and the PHD national account (the "East Territory") (the "East Regional Sales Manager"). See Bittner Dep. at 164; see also Pruner Dep. at 118.

Due to the supervisory nature of the Regional Sales Manager position, extensive administrative skills were required. See Bittner Dep. at 179-180. The administrative aspects of the Regional Sales Manager position resulted in a greater amount of paperwork than the District Sales Managers were responsible for under the system. See id. at 183, 186; Manning Dep at 113-114. The Regional Sales Manager position also required more frequent communication with, and prompt responses to, the home office than the District Sales Manager position. See Bittner Dep. at 183-184.

9. Selection of a Regional Sales Manager

Bittner testified he considered every District Sales Manager, including Pepe, for the new positions created by the Reorganization. See Bittner Dep. at 120. According to Bittner, he placed "the best people in the best jobs." See id. Bittner did not, however, seek applications for the new Regional Sales Manager positions. See id. In fact, neither Pepe nor any of the other District Sales Managers applied for, or were aware of, the new positions prior to implementation of the Reorganization. See, e.g., Pruner Dep. at 117-118.

To select the most qualified people, Bittner asked Witter, based upon his experience as their supervisor, to rank the District Sales Managers. See Bittner Dep. at 96. Bittner testified:

    I asked Tom Witter to rank his direct reports. And I
  wanted to see the best and I wanted to see the worst
  and I wanted him to rank them in terms of all
  qualifications of the job and contributions and
  strategic thinking and planning and promotional
  activity and general management characteristics. And
  he ranked his direct reports.

Id. Witter testified he considered the candidates and ranked the District Sales Managers based upon his "perception of the sales job" done by each of them. See Witter Dep. at 37. As part of his rankings, Witter considered both the District Sales Managers responsiveness to, and communications with, the home office. See id.

Witter ranked Pruner as the best candidate of the seven District Sales Managers. See id. Specifically, Witter testified the principal reason he ranked Pruner first was because of "his aggressiveness' and his thoroughness in communication." Witter Dep. at 38. Pepe was ranked "dead last as the weakest member of the sales team." Bittner Dep. at 98. Based in part on these rankings, Bittner placed Pruner in the Regional Sales Manager position overseeing the East Territory. See id. In addition, Bittner testified he also considered the fact that no one he spoke with had anything negative to say about Pruner's work performance; as well, no one with whom he spoke had anything positive to say about Pepe's work. See id. 112-113.

Witter explained several of the reasons for his negative evaluation of Pepe. See Witter Dep. at 38-39. The primary reasons for ranking Pepe last were: (1) Pepe was very difficult to reach by phone and (2) "he didn't have much computer training" and despite several offers to take classes in Kansas City, Pepe never scheduled an appointment. See id. at 38. The secondary reasons for ranking Pepe last included: (1) Pepe did not respond punctually to e-mails, (2) Pepe was unprepared for a sales presentation Witter attended, (3) Pepe did not adequately focus on, and even ignored, various accounts in his territory, (4) Pepe did not know how to get to an account on Long Island and (5) Pepe did not cancel "ad reqs" on time, but only canceled them at the end of the fiscal year to come in under budget. See id. at 38-39.

Pepe disputes all the reasons Witter gave for his negative ranking of Pepe. See Pepe Cert. ¶¶ 26-37; see also Moving Brief at 8-10. Pepe stated he was never unprepared for a sales meeting and offered the testimony of Mark Opfell, Vice President of Lehrhoff, to confirm that he never found Pepe unprepared for a sales meeting.*fn4 See Pepe Cert. ¶ 33; see also Opfell Cert. ¶ 9. Pepe also asserts that while he may not have been reachable at his home office, he could always be reached by cell phone even if he was out on the road. See Pepe Cert. ¶ 28. Pepe also disputes that his computer skills were deficient. See id. at ¶ 31. It appears, giving Pepe the benefit of all favorable inferences, all of his disputation goes to whether Rival was right in its business judgment of Pepe's worth to the company. This, however, is not the issue in the case.

10. Pepe's Allegations of Age Discrimination

Pepe testified he was denied the Regional Sales Manager position for the East Territory based upon his age. See Pepe Dep. at 166. At the time of the Reorganization, Pruner was 31 years old and Pepe was 47 years old. See Butler Cert. ¶ 2. The difference in his and Pruner's age is the only evidence Pepe provides of the alleged discrimination.

Pepe testified Rival discriminated against him by failing to appoint him to the Regional Sales Manager position held by Pruner. See Pepe Dep. at 392. Comparing himself and Pruner, Pepe testified he should have been appointed to the East Regional Sales Manager position

  based on my experience with the, my experience within
  The Rival Company, within New York, New Jersey, New
  England territory that [Pruner] covers, my experience
  versus, which was a lot more, versus his less
  experience, my ability to, my seniority versus a lot
  less seniority in knowing the company. My rapport and
  my knowledge of the New York customers. My being a
  team leader at Federated. My getting a great job
  review for great performance in the New York ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.