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Former Pepsi Employee’s ADEA Claim Fizzles Out

To prevail on a claim of discriminatory termination under the Age Discrimination in Employment Act (ADEA), an employee must show that he was meeting job expectations.  Moreover, even if an employee can establish a prima facie case, an employer can prevail by showing that the personnel decision was made for a legitimate, non-discriminatory reason.  In an age discrimination discharge case, the plaintiff must prove that, but-for his age, he would not have been discharged.  So long as an employer honestly believes the legitimate reason for terminating an employee, courts will not second guess the employer’s rationale, unless the explanation is pretextual.  Witzke v. Pepsi Bottling Ventures, LLC, No. 17-0651 (D. Md. Sept. 19, 2018), demonstrates this foundational principal.

Scott Witzke worked in sales for a Pepsi bottling company, PBV, from June 1984 until he was terminated on February 29, 2016.  Witzke was a Food Service Representative (FSR) responsible for sales and service to food service accounts such as restaurants, casinos, and other establishments.  Witzke’s supervisor was the Food Service Director for PBV’s Northern Division.

From November 2, 2015 to February 19, 2016, PBV participated in a sales incentive program which awarded the top eligible employee with a trip to Las Vegas to attend the Academy of Country Music Awards.  Witzke told his contact at one his customers, Harrington Raceway & Casino, about the incentive program and discussed adding new products at the venue.  On February 4, 2016, Witzke’s contact placed an email order with PBV’s distribution manager.  A PBV representative found the order odd, however, because the Harrington accounts did not use the equipment that was ordered and the order included a notation that the product be delivered to the “pumproom” instead of where it logically would had been delivered if the facility actually used the product.  Witzke responded to the situation by stating, “It [sic] all good.  Let’s send them.”  A few days after the products were delivered, a Harrington employee emailed PBV to request that the product be picked up, because she thought the product had been erroneously delivered.  PBV explained the product had been special ordered by the customer.  The email messages were forwarded up the PBV hierarchy and the messages eventually included the comment, “FYI – what a cluster when you order BIBs so you can win an incentive.”  PBV also learned that another order was sitting in a warehouse at Harrington.  Although Witzke was copied on emails regarding the confusion, he did not respond to any of the messages.

PBV’s hierarchy discussed the sale with Witzke.  Upper management became concerned that the sale was used to pad Witzke’s numbers for purposes of the incentive program.  PBV suspended Witzke with pay pending an investigation, during which Witzke admitted that he was trying to win the incentive award and explained that he did not believe that he had done anything wrong.  PBV management concluded that Witzke had “attempted to personally benefit from the fraudulent Order to the detriment of his co-workers.”  They decided to terminate him.

Witzke filed suit, claiming that he was discriminated because of his age.  He cited the following as evidence of discrimination.  In 2015, PBV started using a Customer Relationship Management Software (CRM) to provide an electronic method for collecting, preserving, and sharing customer-related information.  After Witzke turned 50 (also in 2015), his supervisor remarked that he “had a lot of gray hair in the department” and “feels they are becoming complacent.”  The supervisor also commented that Witzke “was beginning to look weathered.”  Around the same time, Witzke told the Company that he needed surgery.

In granting PBV’s summary judgment motion, the court highlighted that the decision-makers were not aware of Witzke’s health issues.  Plaintiff, moreover, conceded that all on premises PBV employees, regardless of age, were expected to use CRM.  Witzke could not make out a prima facie case, because, based on his conduct, he was not meeting PBV’s legitimate expectations — he was involved in what PBV legitimately considered to be a fraudulent order.  Witzke admitted to the conduct that PBV perceived to be fraudulent.  Witzke induced his contact at Harrington to submit a fraudulent product order to boost his chances of winning the trip to Vegas, Witzke “took no steps to address the issue” when it was brought to his attention, Witzke did not fix a report that contained the fraudulent order, and he attempted to personally benefit from the fraudulent order.

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