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Cole v. Abbott Laboratories

November 29, 2006


The opinion of the court was delivered by: Judge Holschuh

Magistrate Judge Abel


After being terminated, Plaintiff Robert W. Cole filed suit against his former employer, Abbott Laboratories, alleging a violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. This matter is currently before the Court on Defendant's motion for summary judgment. (Record at 46). For the reasons set forth below, Defendant's motion is granted.

I. Background and Procedural History

Cole, a certified medical technologist, was employed by the Ross Products Division of Abbott Laboratories from 1970 until his termination in May of 2001. Most recently, he was employed in Texas as a District Manager for Medical Nutritional Sales, supervising approximately ten sales representatives. (Cole Dep. at 8-16, 179-80). In 2000, Cole earned the President's Council Award as the top district manager in his region based on his outstanding sales figures. (Id. at 21, 44). Cole generally received positive annual performance evaluations from his regional manager, Thomas Winterburn. (Id. at 30, 34, 37; Winterburn Dep. at 83-84, 95, 102, 109-110).

In April of 2000, Greg Lindberg, Vice President for Sales of Ross Products, learned that Winterburn had received a complaint from one of Cole's district sales representatives, Annette Cline. Cline said that Cole told her that because she had interviewed for another position at Abbott, she was not getting a pay raise. She maintained that Cole had treated her poorly ever since he learned that she was involved in an interracial relationship. She also complained that Cole had sent a copy of a written reprimand against her to a customer. (Winterburn Dep. at 147; Cole Dep. at 346-47). Lindberg found this to be totally inappropriate.

Moreover, Lindberg was not pleased with the leadership Cole had displayed at the last district meeting. Lindberg specifically directed Winterburn to provide additional guidance and feedback to Cole.*fn1 (Lindberg Dep. at 79). As a result, Winterburn's initial annual performance evaluation of Cole in May of 2000 ranked Cole lower than usual in several areas. Cole consulted an attorney and refused to sign the evaluation. This prompted Winterburn to make some revisions, but Winterburn warned Cole at that time that Cole's job could be in jeopardy "not because of your age, because of judgment issues." (Cole Dep. at 115, 351-52). He advised Cole not to send copies of reprimands to customers and told him to stop making off-color comments at work. (Id. at 346-50).

On July 28, 2000, a woman named Allison Heinrich wrote to Abbott complaining that Cole had treated her very rudely at a recent job fair. (Id. at 158 and Ex. 18 to Cole Dep.). Lindberg reviewed her letter and asked Cole to apologize to her. (Lindberg Dep. at 51-53). Lindberg sent another memo to Winterburn expressing continuing concern over Cole's poor judgment. (Id. at 76, 79).

Lindberg also learned of inappropriate comments Cole had made to Joanne Parker, another district manager. At a dinner party attended by Abbott employees, Parker noted that her widowed father had begun dating again. Cole responded that "the only way to cure that is to cut off his pecker or get laid." (Id. at 92-93; Ex. 6 to Manning Dep.). On another occasion, when Parker was pregnant, Cole told her that he noticed that her breasts were getting bigger. (Cole Dep. at 190-91).

On May 2, 2001, Michelle Berger, a sales representative in Cole's district, sent a letter voicing several complaints about Cole to Winterburn with a copy to Lindberg. (Id. at 125-126; Winterburn Dep. at 148-150). Berger alleged that Cole had told a customer that Berger was a "spoiled brat," had made repeated, inappropriate references to the fact that she was a working mother, had told a customer he would talk to him "when I'm not with these women," referring to Berger and another employee, and had criticized Abbott's diversity program, stating that Abbott should re-evaluate the type of people it was hiring. (Cole Dep. at 130-132, 153, 203-204).

Trenton Manning, Plant Manager of Human Resources, was sent a copy of Berger's letter. (Manning Dep. at 30; Ex. 1 to Manning Dep.). He contacted Lindberg and recommended an investigation into the allegations. (Manning Dep. at 30). Based on Berger's letter and the previous complaints by Cline, Heinrich and Parker, Manning and Lindberg discussed the possibility of demoting Cole. They decided to travel to Texas on May 17, 2001 to meet with Cole to get his side of the story. The meeting did not last long because Cole threw his attorney's business card on the table and said that he intended to stay at Abbott as a district manager for another five years. (Lindberg Dep. at 119). He denied most of Berger's allegations.

Cole was placed on administrative leave while an investigation was conducted. Manning and his staff interviewed ten district sales representatives who reported to Cole, four district managers who were Cole's peers, and a national account manager.(Ex. 8 to Manning Dep.). Some gave Cole positive evaluations. Keith Anderson said that he had never heard Cole say anything inappropriate. (Ex. B to Reply, Anderson Report). Martha Blevins reported that Cole was fair and a good boss, and that she had never witnessed Cole behaving inappropriately. (Ex. B to Reply, Blevins Report). Tom Palmer said that Cole was helpful and hands-off as a manager. (Ex. B to Reply, Palmer Report). Palmer expressed some concern with the manner in which the investigation was being conducted and felt as though it was slanted negatively against Cole. (Id.) Manny San Miguel opined that Cole was a good boss and indicated that he respected Cole's discipline with his employees. (Ex. B to Reply, San Miguel Report).

However, eleven of the fifteen interviewees reported concerns about Cole's inappropriate behavior and leadership skills. Several of them characterized him as a "good old boy." Michelle Berger reiterated her complaints from her earlier letter, namely that Cole had made numerous degrading remarks about her to customers, called her a "spoiled brat," questioned whether working mothers could be sales representatives, and advised her not to cry in front of customers. (Ex. 17 to Cole Dep.; Ex. 8 to Manning Dep.; Lindberg Dep. at 125-126, 128, 133-134; Manning Dep. at 298-300). Annette Cline said that Cole was a racist, and noted that he had called Joanne Parker a "bitch,"and made inappropriate jokes about women in front of customers. (Ex. 8 to Manning Dep.; Lindberg Dep. at 190; Manning Dep. at 199, 214). Cline stated that she found working with Cole to be "demeaning." (Manning Dep. at 217, Ex. 8 to Manning Dep.)Joanne Parker stated that Cole "bashes women" and sees them as "a necessary evil." (Ex. 8 to Manning Dep.).

Hadley Hoff stated that Cole criticizes his sales representatives in front of other people and sometimes engages in questionable behavior with customers and co-workers, crossing the line into possible sexual harassment. (Manning Dep. at 350 and Ex. 8; Cole Dep. at 219). Anne Faust reported that she believes Cole is a chauvinist, and that Cole has repeatedly offended her. Once, when she was pregnant, he told her that she could not "have a family and this job." (Ex. 8 to Manning Dep.; Cole Dep. at 221-223). Patti Chapman-Boyce said that Cole does not like working women and believes that Abbott should stop hiring minorities. (Manning Dep. at 230-34, 239 and Exhibit 8). She said that Cole "picked on" his employees and managed them by intimidation. She didn't feel that he evaluated her the same as he did a man. (Ex. 8 to Manning Dep.). Jan Kirk reported that Cole's employees were afraid of him and that he had a "demeaning management style." (Id.).*fn2 Steve Schlies, Daryl Mayfield, and D'Lana Matta each confirmed that Cole had a reputation for making inappropriate comments. (Id.).Manny San Miguel agreed that some of Cole's comments could be offensive to minorities and women. (Ex. 6 to Manning Dep.; Cole Dep. at 202).

Manning's May 23, 2001 report to Lindberg stated that "Bob has a history of making derogatory, lewd, racist, and chauvinistic comments," and has a "demeaning and intimidating style of management." (Ex. 2 to Lindberg Dep.). Based on the seriousness and pervasiveness of Cole's inappropriate behavior uncovered during the investigation, Manning concluded that it would be best to terminate him despite his long tenure with the company. (Id.). Winterburn was not consulted in the decision. (Winterburn Dep. at 217; Manning Dep. at 109). Manning's recommendation for termination was reviewed and approved by the Vice President for Human Relations and by Lindberg. (Manning Dep. at 159). Cole was discharged with retirement on May 30, 2001. (Lindberg Dep. at 174; Manning Dep. at 109, 390). He was 60 years old at the time. (Cole Dep. at 243). He was replaced by Kirk Arnold, who was 36 years old. (Fisher Dep. at 103-04).

Cole filed suit against Abbott alleging age discrimination. He contends that he was terminated because he was the oldest district manager in his region and one of the oldest in the nation. He further argues that the reasons given for his termination were pretextual. Cole seeks damages for loss of employment, emotional distress, loss of past and future ...

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