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Rusnak v. Dollar General Corp.

September 20, 2006

FRANK L. RUSNAK, PLAINTIFF
v.
DOLLAR GENERAL CORP., INC., DEFENDANT.



The opinion of the court was delivered by: District Judge Susan J. Dlott

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on Defendant's Motion for Summary Judgment. (Doc. 41.) Plaintiff Frank Rusnak filed a complaint asserting that his former employer, defendant Dollar General Corp., Inc. ("Dollar General"), is liable to him for discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the "ADEA") and Ohio Revised Code § 4112.2(N); wrongful discharge in violation of Ohio public policy; negligent misrepresentation; breach of covenant of good faith and fair dealing; equitable estoppel; and promissory estoppel. (Doc. 14.) Dollar General moved for summary judgment as to all of Rusnak's claims. (Doc. 41.) Subsequently, Rusnak voluntarily dismissed his claims of negligent misrepresentation, breach of covenant of good faith and fair dealing, and equitable estoppel. (Doc. 53 at 6, n.1.) Accordingly, the Court considers Defendant's motion as to the remaining claims. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Defendant's motion. The Court grants the motion as it relates to Rusnak's violation of Ohio public policy claim but denies the motion as it relates to Rusnak's remaining claims.

I. BACKGROUND

Dollar General is a retail organization that operates Dollar General stores in twenty-four states. (Rusnak dep. at 49.) Dollar General has a real estate department, the purpose of which is to identify and acquire new store locations and expand the business. (Smith dep. at 42.) At all relevant times, Dollar General's real estate department was overseen by a senior director, with two regional directors reporting to that position, and approximately twenty-five real estate representatives assigned to various territories throughout the United States reporting to the regional directors.*fn1 (Smith dep. at 31, 36, 45.) Plaintiff, Frank Rusnak, worked for Dollar General as a real estate representative from 1994 until his termination in November 2003.

Dollar General's real estate representatives either lease existing buildings or work with builders or developers to build new stores. (Smith dep. at 42, 44.) Dollar General evaluates its real estate representatives on an annual basis using a numerical scale that takes into account certain standards such as the number of new stores opened by October 31 of the given year*fn2 (Rusnak dep. at 111-12), average sales volume, rent, and expenses. (Rusnak dep. Ex. 12-15.) A real estate representative could only receive a bonus if he "met standards" with an overall numeric rating of at least 1.75. (Fox dep. at 235.)

With the exception of newly hired employees or representatives with unusual circumstances, Dollar General generally assigns real estate representatives a goal of opening 40 new stores per fiscal year. (Rusnak dep at 113-14; Rasmussen dep. at 81.) Dollar General gives a representative credit only for stores actually opened--it does not give credit for merely executing a lease. (Black dep. at 50; Fox dep. at 29; Smith dep. at 54.)

Frank Rusnak, born on November 2, 1945, had a nearly thirty-year career working in retail before he joined Dollar General. (Rusnak dep. at 16-20.) Rusnak began working for Dollar General on or about October 31, 1993, as a district manager covering a region from Dayton, Ohio to Lima, Ohio. (Am. Compl. ¶9, Rusnak Dep. at 8.) He was later promoted and, on or about September 26, 1994, Rusnak began working as a real estate representative covering Ohio. (Rusnak dep. at 25, 27-29, 32-33.) As a real estate representative, Rusnak was responsible for finding store locations and negotiating stores for Dollar General. (Rusnak dep. at 29-30.) In 1996, Dollar General promoted Rusnak to real estate director in training, and he received an increase in salary. (Rusnak dep. at 28, 37; Smith dep. at 29.) As a real estate director in training, Rusnak supervised three employees and performed the same duties as the regional directors. (Rusnak dep. at 30, 45.) However, in 2000, Dollar General ended the real estate director in training program. (Rusnak dep. at 29, 43, 45; Smith dep. at 30.) Regional Director Black offered to retain Rusnak as a real estate representative, and Rusnak accepted. (Rusnak dep. at 43-33.) Rusnak returned to the position of real estate representative for Ohio, a state in which Black acknowledged work could be tough. (Black dep. at 158.) Black gave Rusnak a reduced goal*fn3 for store openings that year because Rusnak did not start the position until February and the evaluation period ended in October. (Rusnak dep. at 110-11.)

According to Dollar General, after Rusnak resumed working as a real estate representative in 2000, he did not perform to a level commensurate with his experience. (Fox dep. at 58.) Dollar General claims that Rusnak failed to meet his store-opening goal in 2000.*fn4

(Black dep. at 48-49.) However, Black gave Rusnak a performance score of 1.8, indicating that Rusnak met his standards that year. (Rusnak dep. Ex. 12.)

The following year, 2001, Rusnak failed to meet his goal of opening forty stores and received a "below standard" performance score of 1.6. (Black dep. at 241; Rusnak Ex. 13.) The performance review noted that Rusnak "should be a top producer with his years of experience and training." (Rusnak dep. Ex. 13.) According to Dollar General, Black then told Rusnak that because he had failed to make his goals two years in a row, Rusnak had to make his monthly and quarterly goals moving forward. (Black dep. at 133.) Rusnak felt that the rating was unfair because, at Dollar General's request, he opened five stores in January--outside the February to October evaluation period. (Rusnak dep. at 134.)

In 2002, Rusnak again failed to meet his goal of opening forty stores and received a "below standard" performance score of 1.53. (Rusnak dep. 112-13; Rusnak dep. Ex. 14.) Black indicated on Rusnak's performance evaluation that Rusnak "must show he has the ability to meet his monthly goals within reason and meet his quarterly goals without exception.... He must improve his productivity." (Rusnak dep. Ex. 14.) On July 10, 2002, Black presented Rusnak with a progressive counseling record addressing his performance. (Rusnak dep. at 155; Black dep. at 211; Rusnak Ex. 17.) Black disciplined Rusnak for failing to meet his goals for the first two quarters of 2002 and identified four corrective actions for Rusnak to complete by certain dates. (Rusnak dep. at 155-58; Black dep. at 213-15; Rusnak Ex. 17.) Rusnak failed to fulfill two of the four corrective actions: he did not attain the store count for that year, and he did not make his quarterly goals. (Id.; Rusnak dep. Ex. 18.)

Four months later, on November 14, 2002, Black presented Rusnak with a final progressive counseling. (Rusnak dep. at 159-60; Black dep. at 218-19; Rusnak Ex. 18.) Black disciplined Rusnak for not making his monthly goals and for again missing his annual goal of opening forty stores by October 31, 2002. (Rusnak Ex. 18.) Rusnak admitted that he did not make all monthly goals and did not meet his annual goal but said that he believed the stores that he opened after October 31 should have counted toward his goal. (Rusnak dep. at 160; Rusnak Ex. 18.) Black identified two corrective actions for Rusnak: make all quarterly goals in 2003 and not miss any monthly goals by more than one store opening. (Rusnak Ex. 18.) The progressive counseling record noted that if Rusnak did not satisfactorily accomplish the action plan, Dollar General would terminate him. (Id.)

Dollar General then undertook to assist Rusnak in meeting his store opening goals, including bringing in two other real estate representatives to help Rusnak identify new locations to develop and giving Rusnak additional territory in Michigan. (Black dep. at 143-44; Rusnak dep. at 246-47.) However, Rusnak did not meet his 2003 first and second quarter goals.

(Rusnak dep. at 149-51; Ex. 15.) Then, according to Rusnak, in early October, his supervisor Rasmussen asked him to move several store openings from fiscal year 2003 to fiscal year 2004. (Rusnak dep. at 181, 84.) Rasmussen allegedly told Rusnak that delaying the store openings would not cost Rusnak his raise and that Rusnak would keep his job, despite not meeting his 2003 store-opening goal. (Rusnak dep. at 184-85.) Rasmussen denies ever telling Rusnak to delay the store openings. (Rasmussen dep. at 166-69.) Rusnak delayed the store openings and did not meet his goal of opening forty stores by October 31, 2003. (Rusnak dep. at 113.)

On November 12, 2003, Dollar General presented Rusnak with a ten-year service award. (Rusnak dep. at 170.) The following day, Rasmussen terminated Rusnak for failing to meet his goal. (Rusnak dep. at 170-72.) Rusnak was 58 years old. Following his termination, Rusnak's territory was covered by the following individuals: Daniel Rasmussen (age 54), Larry Lynn (age 56), Terry Bailey (age 62), Gregory Dennis (age 37), and Vince Boldin (age 58). (Kelly aff. ¶ 3.)

Rusnak (born in 1945) claims that Dollar General treated younger real estate representatives more favorably than it treated him. He points to the fact that when Rasmussen surpassed his personal store opening goal, he would occasionally give credit for the excess stores to "new reps." (Rasmussen dep. at 305.)*fn5 He also discusses Dollar General's so-called "favorable" treatment of real estate representatives Turner (born in 1957), Cardwell (born in 1955), Kopp (born in 1960), and Grooms (born in 1965). (Doc. 53 at 12-14.)

In 2002, when Turner made his store-opening goal only one out of three quarters, Black gave Turner a score of 1.5 in the evaluation category "Opened by Quarter Goals." (Doc. 53, Ex. A at 01408.) That same year, when Rusnak similarly made his goal only one out of three quarters, Black gave ...


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