Donald G. Wexler v. White's Fine Furniture, Inc.

246 F.3d 856, 2001 U.S. App. LEXIS 7109, 80 Empl. Prac. Dec. (CCH) 40,495, 85 Fair Empl. Prac. Cas. (BNA) 906, 2001 WL 391819
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 19, 2001
Docket99-3929
StatusPublished
Cited by15 cases

This text of 246 F.3d 856 (Donald G. Wexler v. White's Fine Furniture, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donald G. Wexler v. White's Fine Furniture, Inc., 246 F.3d 856, 2001 U.S. App. LEXIS 7109, 80 Empl. Prac. Dec. (CCH) 40,495, 85 Fair Empl. Prac. Cas. (BNA) 906, 2001 WL 391819 (6th Cir. 2001).

Opinions

OPINION

KRUPANSKY, Circuit Judge.

In this action commenced pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., the plaintiff-appellant, Donald G. Wexler (“Wexler”), has assailed the district court’s [858]*858summary judgment for the defendant-ap-pellee White’s Fine Furniture, Inc. (“White’s”), by which it resolved that the plaintiff had failed to proffer legally sufficient direct or circumstantial evidence to support his prima facie case. Alternatively, the trial court directed that, even assuming arguendo the existence of adequate circumstantial proof buttressing the plaintiffs age discrimination charge, the defendant had proffered a valid nondiscriminatory reason for its faulted actions, whereas the plaintiff had not countered that reason with evidence of pretext legally sufficient to muster a triable jury question. On review, Wexler has argued that the record evidence created a triable inference of discriminatory intent, as well as of pretextual motive, by White’s.

At all times material to the subject action, White’s owned and operated several retail furniture outlets in the Columbus, Ohio vicinity. On September 9, 1993, Gordon Schiffman (“Schiffman”), who was White’s president, chief executive officer, and (together with his two sons) the controlling shareholder, hired Wexler to work as a sales representative at the predominantly family-owned company’s Morse Road store. On that date, Wexler was 55 years old, and Schiffman was approximately 64 years of age.1 As a floor salesman, Wexler received White’s standard compensation package, namely six percent commission on all delivered sales, with a guaranteed minimum annual salary of $20,000 (increased in 1996 to $25,000). Any periodic salary payment which exceeded accrued commissions was distributed as a draw or advance against unearned future commissions.

Wexler’s satisfactory performance on the sales floor, as well as his prior experience in the retail furniture industry, prompted Schiffman, on February 13, 1995, to promote the then-57-year-old Wexler to manager of the Morse Road store. Shortly thereafter, the plaintiff attended four extensive formal managerial training sessions, and subsequently bene-fitted from ongoing informal instruction by corporate supervisors. Based on his training and experience, Wexler understood that his duties as a store manager included, among other things, the counseling and supervision of subordinate personnel, the identification and correction of employee performance problems, and the replacement of malperforming or uncooperative sales representatives; as well as the creation of attractive furniture displays, the maintenance of the facility’s overall appearance, the accurate recording of sales transactions, and the promotion of positive customer relations including the mailing of a “thank-you” note to each buyer. Most importantly, the plaintiff conceded at deposition that he knew that, as a store manager, Schiffman would hold him personally accountable for his location’s aggregate sales figures.

Commencing in August 1996, the overall sales volume of the Morse Road store, as well as Wexler’s personal sales productivity, began a gradual decline. That cash flow problem alarmingly worsened between November 1996 and May 1997, when average monthly sales at Morse Road decreased 30.25%, and Wexler’s personal sales declined 48% (or about $200,000), compared to the corresponding seven-month interval during the prior twelve-month period. In response to that [859]*859continuing downward spiral, the defendant adjusted Wexler’s remuneration formula, starting on March 1, 1997, to partially reflect the overall performance of the Morse Road store-White’s reduced Wex-ler’s commission on his personal sales from six to three percent, but concurrently entitled him, for the first time, to a commission of one and one-half percent on all delivered sales transacted by his subordinate staff members.

On June 9, 1997, Wexler, Schiffman, and David Lively (“Lively”), who was White’s Executive Vice-President and owner of five percent of the concern’s shares, met to discuss the Morse Road location’s chronically low traffic. During that meeting, Schiffman expressed extreme dissatisfaction with the store’s 24% decline in sales during the five-month period January through May 1997, and further chastised Wexler for specific deficiencies in his managerial performance, including consistently sloppy paperwork,2 failure to counsel un-derperforming sales representatives, and inadequate store maintenance.3

On June 15, 1997, Schiffman and Lively advised Wexler that the company planned to demote him to his former position as a floor sales representative. The two corporate officers emphasized to Wexler that, although they were dissatisfied with his performance as a store manager,4 they hoped that he would remain on White’s sales staff. They expressed mutual confidence that he could contribute to the company in the future as a sales professional. As a partial inducement for him to accept the proposed re-assignment, the defendant offered Wexler the most generous compensation package ever bestowed upon one of its salesmen: Wexler’s managerial compensation would continue through the balance of June 1997, and thereafter, he would accrue an eight percent commission on each of his personal consummated sales, rather than the standard six percent allotted to each of White’s otlier salespersons. Moreover, the company agreed to forgive $4,500 in past salary advanced to Wexler as a draw against his as-yet-unearned commissions, despite its longstanding policy and practice of debiting such excess payments against the employee’s unaccrued future commissions.

As purported support for his allegation that Schiffman demoted him by reason of age-driven animus, Wexler testified that, near the start of the June 15, 1997 assembly:

Gordon [Schiffman] had a smile on his face, said he had read the paper that I had given him, and that most of what I had written was correct. However, they have decided to make a change.
He then said, you’re 60 years old, aren’t you, Don? I said, no, Gordon. I’m 59. I’ll be 60 in January. He then said, [860]*860well, we both have been in the business 117 years [sic — 127?]. You don’t need the aggravation, stress of management problems, customer problems, taking care of all these salespeople’s problems that keep calling you on the phone all day every day.
Mr. Lively then interjected that they were going to really be grinding their managers in the future, and if they had to sweep floors or stay there until 11:00 p.m., they would do so. And he said it was stuff that I don’t think you’d want to be doing.

Wexler also testified that, immediately prior to the June 15 meeting, he had observed Sehiffman and Lively speaking with a “young man.” That person was John Neilson (“Neilson”), an individual in his early thirties.

On the following day, June 16, 1997, Wexler verbally accepted Schiffman’s reassignment proposal and graduated commission offer. Sehiffman responded that he was pleased by Wexier’s decision to remain on White’s employment roster.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Disedare v. Brumfield
E.D. Louisiana, 2024
Yue v. Miao
D. South Carolina, 2019
Carmen Garrett v. Southwestern Medical Clinic
631 F. App'x 351 (Sixth Circuit, 2015)
Seay v. Tennessee Valley Authority
340 F. Supp. 2d 832 (E.D. Tennessee, 2004)
Pollitt v. Roadway Express, Inc.
228 F. Supp. 2d 854 (S.D. Ohio, 2002)
Sims-Eiland v. Detroit Board of Education
173 F. Supp. 2d 682 (E.D. Michigan, 2001)
Taylor v. Bell County Board of Education
21 F. App'x 364 (Sixth Circuit, 2001)
Phelps v. Jones Plastic & Engineering Corp.
20 F. App'x 352 (Sixth Circuit, 2001)
Richard M. Kadas v. MCI Systemhouse Corporation
255 F.3d 359 (Seventh Circuit, 2001)
Donald G. Wexler v. White's Fine Furniture, Inc.
246 F.3d 856 (Sixth Circuit, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
246 F.3d 856, 2001 U.S. App. LEXIS 7109, 80 Empl. Prac. Dec. (CCH) 40,495, 85 Fair Empl. Prac. Cas. (BNA) 906, 2001 WL 391819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donald-g-wexler-v-whites-fine-furniture-inc-ca6-2001.