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Poor Sales, Expired Product, Led to Discharge

A 46-year-old African-American district salesman for a medical device company cannot show a material factual dispute arising from his claims of race and age discrimination, as defendant employer demonstrated a sharp decline in sales in plaintiff’s territory and his failure to identify an expired product that was implanted in a patient provided reasons to terminate plaintiff; the Alexandria U.S. District Court grants summary judgment to plaintiff.

Plaintiff’s job duties included collaborating with surgeons and physicians in cases where Cook’s products and services were used, participating in the deployment of those products and services during procedures in the operating room, developing new and expanding existing business via an annual business plan for his assigned territory, meeting and exceeding sales goals and educating customers about Cook’s products and services.

The difference between sales in 2009 and sales in 2010, when plaintiff took over as district manager, represented a 33 percent decline, the largest sales decline in plaintiff’s region and more than three times the loss of the next closest district manager. Plaintiff’s sales performance continued to be comparatively poor in the first and second quarters of 2011, when he was again ranked last among district managers in his region in total sales and monthly averages.

In the course of a surgical procedure in March 2011, plaintiff provided a physician with an expired endovascular graft that was then implanted in a patient. Cook investigated the incident and issued defendant a formal written warning that he refused to sign. Following that incident and given “complaints from physicians, operating room staff, purchasing staff and co-workers,” as well as plaintiff’s poor sales performance over the course of 2010 and the first quarter of 2011, in April Cook placed plaintiff on a Performance Improvement Plan (PIP). He signed the PIP under protest and filed an EEOC charge two weeks later.

Plaintiff’s sales in April, May and June 2011 did not meet the PIP sales goals, and he failed to provide timely business plans and reports to his regional manager as required. The company terminated him and he filed a second discrimination charge alleging retaliation.

Plaintiff’s “growing pains” argument may be fairly used to explain the low sales figures for 2009; however, it does not adequately explain the poor sales numbers for 2010 and the first two quarters of 2011 – the time period Cook focused on when making its decision to place plaintiff on the PIP and to eventually terminate him.

As to Cook’s concerns about plaintiff maintaining and expired graft in his Zak kit and allowing the graft to be implanted into a patient, plaintiff’s admission under oath that he was responsible for checking expiration dates on Cook products and failed to do so establishes that, from Cook’s point of view, plaintiff should have known the device was expired.

As plaintiff has offered no direct evidence of unlawful race discrimination and failed both to establish a prima facie case of discrimination and to prove Cook’s articulated reasons for its adverse employment actions were pretextual, his race discrimination claim fails as a matter of law and summary judgment in plaintiff’s favor is appropriate.

The court grants summary judgment for employer on plaintiff’s claims of race and age discrimination and retaliation.

Braxton v. Cook Medical Inc. (Brinkema) No. 1:12cv1186, July 31, 2013; USDC at Alexandria, Va. VLW 013-3-384, 20 pp.

VLW 013-3-384

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