Gipson v. KAS Snacktime Co.

Citations: 874 F. Supp. 1556; 1994 U.S. Dist. LEXIS 19439; 71 Fair Empl. Prac. Cas. (BNA) 1677; 1994 WL 746268Docket: No. 4:91CV1827SNL

Court: District Court, E.D. Missouri; December 20, 1994; Federal District Court

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Plaintiff George L. Gipson filed a lawsuit against Borden, Inc. under Title VII of the Civil Rights Act of 1964, claiming racial harassment and demotion. He alleges that his immediate supervisor subjected him to harassment, verbal abuse, unfair job evaluations, and disciplinary actions, ultimately leading to his demotion based on race. Gipson contends that management was aware of the racial harassment and failed to address it adequately. The case was tried without a jury on October 7-8 and 12-13, 1993. The court has overruled all objections to trial exhibits and accepted them into evidence, following a review of pleadings, witness testimonies, depositions, and documents. 

Key findings include Gipson’s status as a U.S. citizen and employee under Title VII, and Borden, Inc.'s status as an employer under the same law. Gipson began his career at Fairmont Foods in 1972, advancing through various managerial roles over 14 years. After Fairmont Foods was acquired by Culbro Corporation and subsequently by Borden in 1987, significant changes in management structure and style occurred. During this time, Gipson was the only Black Regional Sales Manager in the St. Louis region, highlighting the racial dynamics in the workplace.

Region 2 and Region 3 are distinct marketing territories. Region 2 encompasses urban areas in West Central Illinois and parts of Missouri, including Metropolitan St. Louis, where major accounts are closely located, facilitating quick account calls. Conversely, Region 3 is a rural area spanning Northern Arkansas, Southern Missouri, Northwestern Kentucky, Northwestern Tennessee, Southern Illinois, and parts of Eastern Oklahoma and Kansas, with major accounts dispersed across five states and account calls typically requiring more travel distance.

Inventory management varies significantly between the regions. In Region 2, inventory is centralized at a St. Louis warehouse managed by the Route Sales Manager (RSM), while in Region 3, Route Salesmen independently maintain their inventory through personalized storage solutions. Although both the plaintiff and Tony Kern held identical RSM job descriptions, the plaintiff had additional responsibilities for the St. Louis warehouse.

Management styles under Fairmont Foods and Culbro were characterized as relaxed prior to increased competition in the snack food industry beginning in 1987, particularly with Anheuser-Busch and Frito-Lay entering the market. In response, Borden adopted an aggressive marketing strategy, emphasizing a three-step approach: initiating accounts, servicing them actively, and providing follow-up contact. Borden prioritized proactive management and hands-on supervision to enhance sales performance, encouraging District Sales Managers (DSMs) to frequently accompany sales staff on calls.

The plaintiff's working relationship with Rick Brank began in July 1987 and was problematic from the start. An incident occurred when the plaintiff presented Brank with a company-branded jacket, which Brank refused to wear. Tensions escalated over the status of a DSM, Lionel Harris, the only black DSM, whom Brank disparaged and sought to dismiss. The plaintiff resisted such actions, perceiving Harris as a valuable employee. Their relationship deteriorated further when Brank physically threatened the plaintiff during a market tour after the plaintiff entered a store before him.

In August 1987, the plaintiff missed an 8:00 a.m. meeting with Brank, arriving at the St. Louis office at 9:30 a.m. after contacting Brank to explain his absence from Granite City, Illinois. Brank allegedly threatened the plaintiff for this absence. In September 1987, the plaintiff received a job performance evaluation from Brank covering January to August 1987, being rated in seven accountability areas. The plaintiff received a range of ratings from Competent minus (C-) to Fair (F), with an overall rating of Fair (F), which resulted in a denial of a wage increase. In contrast, Tony Kern's evaluation resulted in a high enough rating to earn a 6% wage increase.

Brank provided a written narrative outlining the plaintiff's weaknesses, attributing mediocre performance to poor communication skills, incomplete assignments, and lack of responsibility. He noted the plaintiff's indirect responses and frequent interruptions. To enhance the plaintiff's performance, Brank implemented a six-month action plan with seven specific objectives, including attending all meetings punctually and improving communication skills through training. A formal evaluation was scheduled for 90 days later.

Shortly after his evaluation, the plaintiff assessed Lionel Harris, a top DSM, recommending a wage increase, which Brank denied, instead placing Harris on a 90-day performance plan. Harris later protested, claiming racial discrimination for the denial of his wage increase.

Charles Kester, the Director of Human Resources for the defendant, visited St. Louis in response to a written protest from the plaintiff. During this visit, the plaintiff expressed feelings of unfair treatment but did not specifically claim racial discrimination. Kester requested a written account of the plaintiff's grievances. On October 26, 1987, Brank sent the plaintiff a memorandum about his failure to attend a scheduled meeting, which was part of a prior agreement made during the plaintiff's performance review.

In November 1987, discussions arose between the plaintiff and Brank concerning two employees: Leon Hayes, a black route salesman, and James Stores, a candidate for a route salesman position. Brank sought to terminate Hayes' route, but the plaintiff resisted, preparing a profitability study, though Brank ultimately closed the route. Brank later criticized the plaintiff for not firing Hayes, to which the plaintiff responded that union rules protected Hayes due to his seniority. The route was eventually reinstated. The plaintiff argued for the hiring of Stores, emphasizing the need for a black individual on the reinstated route. After initially opposing the hiring, Brank permitted the plaintiff to bring Stores on board.

Additionally, the plaintiff informed Brank of proposals to new customers, which Brank required prior approval for, and questioned the plaintiff about a sale below cost to a local soccer team. The plaintiff clarified it was initially a donation but acknowledged an undercharge. On November 10, Brank praised the plaintiff for a letter he wrote, suggesting improvements for future correspondence. On November 13, Brank criticized the plaintiff's practice of donating out-of-code products, which the plaintiff defended as standard practice.

Brank sent a memorandum on November 19 requesting a progress report regarding objectives set earlier. The plaintiff's response on November 25 detailed attendance at meetings, issues with scheduling calls to major accounts, and his fieldwork, asserting he completed all assigned tasks and maintained regular meetings with his team.

On December 10, 1987, Brank reprimanded the plaintiff for failing to implement a displayable accounts program, secure a route riding program, and appropriately display retail stores, noting that the reprimand would be part of the plaintiff's permanent file. Brank urged the plaintiff to improve in these areas. Subsequent memoranda from Brank on December 11 and 21 highlighted deficiencies in DSM route riding. On December 14, Brank reprimanded the plaintiff for insubordination related to the priority of selling Kruncher displays, noting that the plaintiff had not ensured DSMs worked on this task. On December 15, another reprimand addressed the plaintiff's handling of account calls for National stores, citing missed advertising campaigns, failure to provide requested information, and a lackadaisical presentation style. On December 18, Brank informed the plaintiff that salary recommendations for Carmack and Daniels were disapproved by Pat Miller due to sales performance issues. On December 22, Brank assigned the plaintiff responsibility for the Shop N’ Save account and inquired about the loss of the Deli Chip account, which had been unreported to him. The plaintiff later presented a business review for National stores in January 1988, after which Brank praised the presentation. On February 28, 1988, the plaintiff sent a lengthy letter to Kester expressing dissatisfaction with his performance evaluation and reprimands from Brank, alleging harassment but not claiming discrimination based on race. Kester took the accusations seriously and consulted with Miller and the Equal Employment Opportunity Officer, Essex Mitchell.

Miller and Kester initiated a personal investigation into the plaintiff's allegations of potential race discrimination. On March 10, 1988, Brank sent a memorandum to the plaintiff, expressing satisfaction with a recent market check and reiterating key discussion points, including the need for the plaintiff to enhance route riding, clarify merchandising preferences, and prioritize selling corn displays. The memorandum concluded with positive feedback on the plaintiff's progress.

Subsequently, on March 19, 1988, the plaintiff responded with a memorandum to his DSMs, emphasizing the importance of route riding but lacking depth on specific concerns. On March 23, 1988, Kester and Miller met with Brank and Gipson in St. Louis, first briefing Brank on a previously unknown letter from Gipson. They reviewed the plaintiff's September 1987 job performance evaluation, revealing errors in sales and expense planning due to incorrect data usage.

Miller found the plaintiff's complaints regarding ratings on sales development and advertisement/promotions largely subjective, though Neilson figures validated Brank's rating for advertisement/promotion. The consensus was that the plaintiff's training program rating was justified, as he did not meet training requirements. Miller noted criticism from Schnuck’s buyer regarding the plaintiff's work and confirmed that the plaintiff failed to complete a required strike plan.

The discussion also addressed the plaintiff's claims of verbal abuse and harassment. Brank maintained that he had previously communicated concerns regarding the plaintiff's performance, including missed opportunities for advertisements and reprimands related to new business proposals. Brank acknowledged issuing a reprimand based on external information and admitted to having threatened the plaintiff on one occasion, which Miller condemned as inappropriate. Lastly, Brank claimed ignorance about the loss of the Queen store accounts until informed by Tony Kern.

The plaintiff and three other men, including Brank, engaged in discussions regarding pay increases and job performance. The plaintiff claimed he and Lionel Harris, the only two black members of management, were the only ones to not receive pay increases. However, it was clarified that Harris had indeed received a retroactive pay increase effective January 1, 1988, which the plaintiff had approved. This oversight was attributed to a prior wage freeze. The discussion also addressed discrepancies in the plaintiff's Fall 1987 job performance review, where both Brank's and the plaintiff's figures were found to be inaccurate. The plaintiff attempted to explain his performance deficit by blaming the loss of a major account, which Miller countered by stating such losses are inherent to business operations.

Miller and Kester acknowledged computation errors in expense reporting but confirmed the plaintiff had overspent relative to plan. Despite the plaintiff's explanations regarding training and customer rapport issues, he admitted to potential problems in his customer relationships that he wished had been addressed earlier. Kester noted a disconnect between the plaintiff’s and Brank’s views on account management and promotions. Miller emphasized that the situation stemmed from poor communication rather than racial discrimination and reprimanded both men for their lack of direct dialogue.

To improve their relationship, specific communication strategies were agreed upon, including weekly meetings between Brank and the plaintiff to address issues, prior discussions of performance evaluations, informal business discussions outside of regular meetings, and informing other employees about their collaborative efforts to enhance communication and business performance. Miller reinforced the company's commitment to fair and equal treatment for all employees.

Miller informed Gipson that the defendant would revise his Fall 1987 job performance evaluation, adjust the overall rating based on corrected information, and grant a retroactive salary increase effective January 1, 1988, to rectify pay discrepancies dating back to September 1, 1987. Gipson was also promised a 90-day review as previously agreed in September 1987, with any resultant salary increase also effective January 1, 1988. Kester confirmed that the meeting concluded positively, and after reviewing it with Essex Mitchell, Kester reported that Mitchell deemed the actions appropriate. Subsequently, Brank issued a revised performance evaluation that improved Gipson's grades from failing to a C level, along with a recommended 3% wage increase, resulting in an effective 6% increase due to retroactivity.

Despite this, Gipson attempted to challenge his original 1987 evaluation, but Brank refused to engage in further discussion. On April 4, 1988, Brank sent a memorandum praising Gipson's performance during a national call and later provided an evaluation for the period January 1 to March 19, 1988, where Gipson received mixed grades, with an overall rating of C. Although Brank acknowledged improvements in Gipson's performance, he noted that Gipson needed to focus more on training and directing his District Sales Managers (DSMs) rather than merely fixing problems.

On April 25, 1988, Brank recognized Gipson's successful business review, and on May 6, 1988, Gipson reported sales exceeding targets. During a visit on May 10, 1988, Gipson expressed concerns to Cutting about communication issues with Brank and felt he was treated unfairly, but did not mention any racial slurs being used by Brank.

Cutting communicated directly with Gipson, emphasizing the company's focus on job performance rather than personal issues among employees. He stressed the need for improved direct supervision of District Sales Managers (DSMs) and their route salespeople, advocating for effective route riding rather than "open route riding." Cutting noted that insufficient route riding could lead to poor marketing practices and that misreporting open routes as route riding was unacceptable.

Following a visit to several store accounts managed by Gipson, Cutting sent a memorandum expressing his enjoyment of the visit and acknowledging Gipson's extensive experience in route sales. However, he highlighted a critical distinction: the role of a Region Manager requires utilizing route experience to enhance business operations rather than merely overseeing routes.

Cutting urged Gipson to concentrate on performance improvement, emphasizing training and development of his team to enhance his reputation as a Region Manager. He pointed out the necessity of shifting from a traditional management approach to one that includes active involvement in routes and districts. In reviewing store performance, he noted that Gipson's better stores received low ratings, with the highest being a 7 out of 10, and encouraged Gipson to view this as an opportunity for improvement.

Cutting highlighted that Gipson's DSMs averaged only 0.8 days per week on route riding, in contrast to the 2.1 days logged by another region's DSMs. He wrapped up the memorandum by addressing Gipson's relationship with Brank, expressing a shared desire to help Gipson enhance his performance. Cutting advised against defensiveness in response to constructive criticism, emphasizing that their goal is to support Gipson's performance, not to dwell on obstacles.

On June 22, 1988, Cutting expressed gratitude to Gipson for his efforts and successful results in preparing for the Krunchers! market tour, which led to new business. On July 5, Brank issued a reminder to Gipson about prioritizing certain activities requiring immediate attention. By July 28, Brank praised Gipson for a follow-up note concerning the Shop N’ Save account, sharing this commendation with Cutting. In early August, Cutting raised concerns about inconsistencies in Gipson’s store accounts and recommended that Brank create a specialized performance development program for Gipson, citing past effectiveness with similar programs at Proctor and Gamble.

Cutting acknowledged a previous unsuccessful attempt by Brank to implement a development program for Gipson in 1987. Subsequently, Brank and Gipson discussed the newly developed program, which Gipson understood but did not consider mandatory. The program aimed to enhance Gipson's skills in district sales management, key account management, personal selling, and route analysis, with objectives linked to his job description. A development review meeting was scheduled for October 3, 1988. Brank concluded the program document with a personal note, encouraging Gipson's full engagement for both personal and company benefit, and offered assistance as needed. On August 10, Cutting communicated with Brank regarding an inquiry from his supervisor, Pat Miller, attaching Miller's memorandum for reference.

Miller expressed concerns regarding an activity report from A1 Elliot related to the management of the St. Louis warehouse, questioning practices such as product returns and the handling of unusable products. He also sought clarification on a failed promotion and criticized George for overreacting, urging a review of ordering and communication issues. In response, Cutting instructed Brank to review Miller’s memorandum and incorporate details from Gipson’s August 1988 performance development program, which he believed addressed the underlying problems. 

On August 22, 1988, Brank communicated to RSMs the need to review Gipson's effective follow-up with DSM Don Carmack, highlighting areas for immediate improvement to maximize sales efficiency. On October 5, 1988, Brank assessed Gipson's performance against the program’s objectives. Gipson achieved only 17% of Objective 1, 8% of Objective 3, and 33% of Objective 4, totaling a mere 14% accomplishment overall. Brank deemed this level of performance unacceptable and extended the program by two months while reiterating the objectives.

During a meeting to discuss his performance, Gipson regarded his participation in the development program as optional, prompting Brank’s anger and subsequent destruction of the review documents, which Gipson later retrieved. Brank indicated that a new mandatory performance development program would be initiated for Gipson.

On October 17, 1988, Brank communicated with Gipson about the inadequate performance of two District Sales Managers (DSMs), Rick Daniels and Lionel Harris, regarding their route rides and training days. Brank requested that Gipson stop having two DSMs work open routes after noting that both had not completed required route rides or training days, and he highlighted their performance deficiencies against company standards. He asked Gipson to address this with the DSMs and to provide him with a copy of the communication.

Gipson responded on October 24, 1988, by sending a memorandum to his DSMs, encouraging them to increase their route rides and training days, and referenced Brank’s earlier memo. On October 27, during a market check in Harris's area, they found significant service and merchandising issues, leading Gipson to put Harris on 90 days of probation, a memorandum for which Gipson claimed Brank had drafted.

Also on October 27, during a visit to Dierberg’s, Gipson failed to utilize the required selling system and misinformed Cutting about the introduction of a new product. Subsequently, on November 1, Brank issued another memorandum citing Gipson’s job performance deficiencies, placing him on a 90-Day Probation Program and outlining specific performance expectations, including training of DSMs and improving communication with supervisors. Brank offered his support for Gipson's improvement efforts.

On the same day, Brank conducted a performance review with DSM Mike Zavorka, found similar issues, and placed him on a probation program as well. A copy of this memorandum was shared with other supervisors, including Gipson. On November 5, Gipson sent two memos to his DSMs: one regarding a sales audit, referencing Brank’s earlier directive, and another requesting a status report, again citing Brank’s memo.

Brank instructed RSMs to enhance their weekly status reports by including detailed information about their accomplishments and those of their teams, without requiring additional reports. He provided a specific format for these reports and suggested that RSMs obtain similar information from their DSMs. On November 7, 1988, Gipson requested assistance from Brank to align small bag trade margins, indicating uncertainty about how to proceed. Brank responded with a clear analysis and marketing strategy recommendation, refraining from any derogatory comments.

On November 10, 1988, Brank sent Gipson three memoranda addressing warehouse inventory issues. He highlighted shortages in inventory levels, specifically for Schnuck items, and expressed disappointment in Gipson's failure to review inventories and orders daily, as previously instructed during his 90-day probation. Brank emphasized that managing warehouse inventory was Gipson's responsibility and warned that ongoing negligence could result in termination.

In a second memorandum, Brank noted complaints from colleagues about warehouse out-of-stock situations, citing 25 specific instances that he deemed unacceptable. He reiterated the requirement for Gipson to meet daily with warehouse lead foreman Greg Vaughn to review orders for accuracy, indicating that Gipson's lack of awareness regarding these shortages demonstrated a failure to follow instructions.

In the third memorandum, Brank addressed a violation of the company's 8-day lead time policy due to Vaughn not submitting orders, which reflected poorly on Gipson’s performance. He concluded by offering further assistance or training if Gipson felt he needed help with warehouse ordering or inventory management. Copies of these memoranda were sent to Cutting.

On November 16, 1988, Brank issued a memorandum recalling a meeting with Gipson about warehouse inventories, emphasizing the need for Gipson to ensure Greg Vaughn utilized the inventory system correctly for at least two hours daily. Brank instructed Gipson that Vaughn was to follow the established system and criticized Gipson for not adequately overseeing Vaughn and the warehouse operations. He noted a complaint from Paul Oliver regarding stock shortages at two Schnuck stores, prompting him to direct Gipson to address the issue. 

Subsequent to this, on November 23, Brank reprimanded Gipson for missing an important advertising opportunity at Dierbergs and Shop N’ Save and for not meeting account call frequency requirements. On December 1, Brank addressed Gipson’s inadequate management of Mr. Cretin's performance, stressing the need for Gipson to work with and train his staff. He offered assistance if Gipson was unclear about expectations, while emphasizing the necessity for improvement in his performance.

Brank's memorandum was shared with Cutting, who noted that Gipson was on a 90-day performance improvement plan and expressed concern about maintaining a constructive approach in documenting Gipson’s progress. The following day, Brank provided a mostly positive weekly report to Bruce Cutting, highlighting the company's recognition as a Private Label supplier and praising Vaughn's handling of warehouse operations, which improved inventory control and reduced stock shortages. On December 16, Brank informed Gipson that he needed to meet the performance metrics outlined in the probation plan to retain his position as St. Louis RSM after the upcoming year.

Gipson expressed to Brank his belief that Brank was biased against him despite his performance metrics, to which Brank denied such intentions. Gipson subsequently requested a departure offer, to which Brank had no substantial response. On January 3, 1989, Brank issued two memoranda to Gipson. The first summarized an October 3, 1988 meeting concerning Gipson’s failure to execute the August 1988 personal development program, during which Gipson accused Brank of unfairness and of seeking to deny him a salary increase. Brank refuted this claim and offered to discard a negative review if Gipson complied with the program's directives, which Gipson agreed to, leading Brank to rescind the unfavorable review.

The second memorandum recounted a November 16, 1988 meeting involving Brank, Gipson, and others, emphasizing the necessity for Gipson to fulfill his obligations under the August program. Brank noted that Gipson had explicitly agreed to these objectives. Gipson later met with Cutting and Brank to discuss his probation performance review, challenging the findings and claiming compliance with the program's requirements. Cutting requested documentation from Gipson to support his assertions. On January 4, 1989, Brank reiterated this request in another memorandum, urging Gipson to compile the relevant data. Cutting also expressed concerns about Gipson’s understanding of his duties as a Regional Manager versus those of a District Manager and indicated that although they wished for Gipson’s success, his performance was inadequate. He outlined specific issues leading to the probation program, including previous performance failures and operational discrepancies.

On January 3, a discussion highlighted the distinction between the performance requirements for a Region Manager versus a District Manager, emphasizing that the plaintiff, George Gipson, must meet region-level objectives. Despite acknowledging Gipson's effort, the emphasis was placed on the necessity of adhering to specific methods to fulfill his role as a manager of managers. Gipson was warned that failing to meet the probation program's requirements by February 6, 1989, would indicate an inability to perform his duties as a Region Manager. 

On January 6, Pat Miller updated Gaylen Legan on Gipson's performance track and noted that Gipson expressed feelings of racial discrimination against Rick Brank, without providing specific examples. Miller believed that Brank was not racially discriminatory. A meeting was planned for the following week with Charlie Kester to further discuss Gipson's claims, with the option to involve a human resources manager.

On January 10, Kester met with Gipson, who reiterated feelings of being targeted by Brank but could not provide specific instances of racial discrimination. Gipson mentioned performance-related grievances but did not identify any direct racial comments or slurs made against him. Kester offered to facilitate communication with the EEO representative, Essex Mitchell, but Gipson declined.

Discussions about Region 3 and Tony Kern revealed ongoing issues between Kern and Brank, suggesting that even if the plaintiff had held a different position, Kern would still face difficulties. On January 10, 1989, Brank issued a memorandum to the plaintiff outlining the completion of performance requirements, noting that the plaintiff had only fulfilled three personal account business reviews by that date. Brank reiterated their previous conversation where the plaintiff expressed disinterest in returning to a District Sales Manager position. He urged the plaintiff to meet performance requirements and to reach out for assistance if needed. This memorandum was also distributed to Miller, Cutting, and Kester.

On January 16, 1989, Brank criticized the plaintiff in a memorandum for failing to prepare a required fact sheet for an account call on Shop N’ Save, despite being reminded twice. He accused the plaintiff of providing false information and noted the plaintiff's inappropriate lengthy discourse on topics outside his remit, which led to the buyer’s frustration. A separate memorandum from Brank regarding a Dierberg account call detailed several deficiencies in the plaintiff's performance, including poor delivery, interruptions, vague responses, and failure to provide up-to-date information or a follow-up.

On February 1, 1989, Brank updated the plaintiff on his probationary program performance while also placing another employee, Mike Zavorka, on a performance track for poor management. The plaintiff had previously declined to address Zavorka’s performance. On February 10, 1989, Cutting summarized their February 7th discussion, acknowledging documents received from the plaintiff and outlining the final assessment of the plaintiff's performance during probation. Although the plaintiff did not meet all performance requirements fully, Cutting viewed the effort positively and deemed the probation satisfactorily completed. He encouraged the plaintiff to embrace change as part of growth and acknowledged the necessity of adapting to evolving management practices after 17 years in the field.

Rick Brank established new management performance standards upon taking office, which took time for Gipson to recognize as necessary for his role. The 90-Day Probation program was intended for the Regional Sales Manager position in St. Louis, aligning with expectations for all Regional Sales Managers (RSMs) within the company. Cutting emphasized that Gipson's completion of the probationary period indicated his understanding of job requirements. He warned Gipson that further performance failures would lead to his termination from the RSM role, asserting that any future shortcomings would signify Gipson's decision to end his responsibilities.

During a February 7 meeting, Cutting reviewed Gipson's probation completion and directed him to collaborate with Brank for Merchandiser coverage, which Gipson later delegated to DSM Rich Daniels instead. A subsequent market tour revealed issues with stale merchandise, prompting a reprimand to DSM Lionel Harris from Gipson. On March 1, Cutting assessed lower-level managers, recommending Brank remain in his position while advising him to improve his management style to foster better communication. For Gipson, despite meeting probation requirements, Cutting recommended demotion due to observed deficiencies in attitude and management skills, noting Gipson's tendency to seek excuses rather than performance improvements and his failure to maintain confidentiality and decisiveness.

The excerpt outlines a series of performance-related issues regarding an employee, identified as the plaintiff, leading to a recommendation for demotion. Key points include the plaintiff's avoidance of direct questions and issues, resistance to changes in inventory targets, and a lack of accountability regarding performance metrics. The plaintiff was criticized for delegating responsibilities to a subordinate, becoming overly involved in personnel decisions, and failing to manage inventory effectively, resulting in stale merchandise. A market tour was scheduled to assess these issues, after which management recommended the plaintiff be demoted to a District Manager position in St. Louis due to ongoing poor performance and management deficiencies.

Management's decision, which included discussions with various executives, was communicated to the plaintiff on March 3, 1989, highlighting that the demotion was due to consistent underperformance, not solely based on sales figures, which were argued to be influenced by regional differences in advertising spending. The plaintiff contested the demotion, attributing it to unfair practices and blaming management for changes that affected performance metrics. He did not raise any claims of racial discrimination during the meeting. Following the demotion, the plaintiff retained a company car temporarily but later switched to using his personal vehicle with reimbursement. Subsequently, on July 31, 1989, the plaintiff filed an EEOC charge alleging that the demotion was racially motivated.

Beginning around October 1, 1987, the plaintiff, Gipson, alleges ongoing harassment by his supervisor, including unfair reprimands, probation, and demotion, while being subjected to different employment terms than a White Regional Manager. The plaintiff's affidavit, however, does not mention any racial slurs or epithets directed at him by his supervisor or other employees. During a pre-determination interview, no racial slurs were reported. After receiving a "Right-to-Sue" letter from the EEOC, Gipson filed suit on August 5, 1991, in the Circuit Court of St. Louis County, which was later removed to federal court. He seeks reinstatement, back pay, lost benefits, expenses from his demotion, and legal fees.

The court has jurisdiction under the Civil Rights Act of 1964. In Title VII race discrimination cases, plaintiffs can proceed with either direct evidence showing race as a motivating factor or significant circumstantial evidence linking discrimination to the employment decision. The burden-shifting framework from Price Waterhouse v. Hopkins applies if such evidence is presented; otherwise, the McDonnell-Douglas standard is used. The defendant denies that race influenced the demotion, while the plaintiff asserts that his evidence supports his claim, arguing for the applicability of the Price Waterhouse framework, which shifts the burden to the employer to demonstrate that the same decision would have been made without consideration of race.

In the context of employment discrimination law, the Price Waterhouse burden-shifting framework applies only when mixed motives exist—specifically, when a valid company interest coexists with evidence of discrimination influencing the decision. The Eighth Circuit, in Beshears, clarified that direct evidence sufficient to meet a plaintiff's burden under this framework excludes "stray remarks" and statements from non-decisionmakers or those unrelated to the decision-making process. Direct evidence may include actions or remarks indicating a discriminatory attitude, particularly from those involved in employment decisions.

In the case discussed, the plaintiff alleges that racial animus influenced his demotion, citing threats of physical harm and a racial slur directed at him by a decision-maker named Brank. The plaintiff argues that these incidents reflect Brank's discriminatory attitude, contrasting his treatment with that of white employees. The defendant counters that Brank’s comments are irrelevant since he was not the final decision-maker. However, the court will consider the plaintiff's allegations, given Brank's significant role in the employment decisions affecting the plaintiff, including performance appraisals and discussions with higher management regarding the plaintiff's performance. The plaintiff asserts that Brank's threats were frequent and uniquely targeted, not witnessed by others, suggesting a pattern of discriminatory behavior.

Plaintiff identifies two primary incidents of physical threats by Brank: a staff meeting after September 1987 and a coffee-related confrontation in July 1988. In a letter to Kester in February 1988, the plaintiff mentioned three incidents, including the staff meeting (now dated August 1987), the coffee incident (now stated to have occurred in October 1987), and a third involving the Queen stores. At trial, the plaintiff recounted multiple threats, including two from August 1987 related to entering a store and arriving late for a meeting, a refusal to get coffee in October 1987, and a staff meeting in November 1988, along with threats regarding job security. Kester testified that during a March 23, 1988 meeting, Brank admitted to threatening to "tear the plaintiff's head off." The coffee incident is noted as the sole claim wherein Brank allegedly used a racial slur; Gipson recounted an encounter on October 5, 1987, where Brank confronted him about the coffee and used a derogatory term. Although initially stating the incident occurred in July 1988, Gipson later revised the date. Witness Richard Daniels corroborated the confrontation, describing Brank's angry demeanor and the racial slur used, although he could not confirm the date. Daniels also mentioned that he had not been approached to provide testimony or a statement to the EEOC regarding the incident.

Charles Kester testified that he was never informed by Pat Miller or Daniels about any allegations of Brank using a racial slur related to the plaintiff. Kester and Cutting both stated that the plaintiff did not mention any racial slurs during their numerous meetings. The plaintiff himself acknowledged not disclosing Brank's racial slur due to its offensiveness. Robert Patterson, a witness, did not recall any hostile incidents between Brank and the plaintiff. The Court found credible evidence of only one verbal threat made by Brank prior to February 1988, while the allegation of a racial slur was deemed unsubstantiated due to lack of external evidence. Rich Daniels, the plaintiff's sole witness for a specific incident, had a differing account and only informed the plaintiff after being contacted by his attorneys. The plaintiff's detailed complaint to Kester in February 1988 and his documents filed with the EEOC contained no references to racial slurs. The Court noted that not all discriminatory comments imply that discrimination influenced employment decisions. Testimonies revealed that Brank was difficult to interact with, but the isolated verbal threat did not prove a link between racial discrimination and the plaintiff's demotion. The plaintiff's remaining evidence consisted of unsupported allegations regarding ambiguous comments about his job security.

Plaintiff's evidence of reprimands from Brank lacks hostility, as they often contained polite requests for discussion and corrective action. While the plaintiff received reprimands, he also received numerous commendations, indicating only a difference in attitudes rather than a causal link to his demotion. Consequently, the court finds the Price Waterhouse burden-shifting framework inapplicable, opting instead for the McDonnell-Douglas burden-shifting analysis for Title VII disparate treatment cases. Under this framework, the plaintiff must first establish a prima facie case of intentional discrimination by a preponderance of the evidence. If successful, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for the demotion. If the employer meets this burden, the plaintiff must demonstrate that the employer's reasons are pretextual, maintaining the ultimate burden of proving intentional discrimination. In establishing a prima facie case, the plaintiff must show he is a member of a protected class, had the necessary qualifications, was demoted, and that similarly situated employees outside his class were not demoted under the same conditions. The court will evaluate whether the employees are similarly situated based on the conditions they faced and the nature of the disciplinary actions taken.

The plaintiff, an African-American former Regional Sales Manager, was demoted to District Sales Manager, raising claims of racial discrimination. He argues that race was the primary factor for his demotion, as he outperformed his counterpart, Kern, in both regional sales and expense forecasts. Evidence shows that Gipson and Kern had identical job descriptions, but the demands placed on them differed significantly. Brank, the Division Sales Manager, imposed stricter requirements on the plaintiff, such as increased "route riding" and "work-with" expectations, while Kern faced more lenient demands, including greater autonomy in hiring and fewer account call requirements.

The marketing environments of their respective regions were starkly different: the plaintiff's Region 2 was a dense metropolitan area, allowing for frequent, direct supervision and quicker travel between accounts. In contrast, Kern's Region 3 was largely rural, with accounts spaced much farther apart, limiting personal contact and requiring more flexibility in meeting performance standards. This geographical difference influenced the application of existing expectations and the ability to supervise subordinates effectively. Overall, while both individuals were subject to the same standards, the logistics of their regions and the demands from Brank contributed to the differing responsibilities and expectations placed on them.

Region 2 operated a central warehouse for product inventory and distribution, which the plaintiff managed daily, while Region 3 lacked such a facility, leaving Kern without warehouse responsibilities. The different application of standards for "route riding" and "work-withs" was attributed to geographical factors rather than the races of Gibson and Kern. Although the plaintiff had higher sales figures on paper, Region 2 received more financial investment from Brank, positively affecting the plaintiff's sales. The Court concluded that the plaintiff and Kern were not "similarly situated," and thus the evidence was inadequate to infer race discrimination.

Even assuming they were similarly situated, the plaintiff failed to prove purposeful race discrimination in his demotion to DSM. Upon establishing a prima facie case, the burden shifted to the defendant to provide a legitimate, non-discriminatory reason for the demotion, which is a production burden rather than a proof burden. The Court noted that the defendant offered a "clear and reasonably specific" explanation: the plaintiff's refusal to adhere to managerial duties outlined by company policies. In a competitive snack food market, Borden required "hands-on" management, yet the plaintiff did not meet the standards for "work-withs" and "route rides," failed to service major accounts as per the company's selling approach, and resisted directives regarding personnel and warehouse operations.

The defendant's legitimate reason for the demotion stemmed from the plaintiff's ongoing resistance to implementing mandated sales and management techniques. The plaintiff now has the opportunity to demonstrate that this proffered reason is a pretext for discrimination. He argues two points in his attempt to establish pretext.

The plaintiff asserts that his performance was superior to that of Kern, who was never reprimanded or demoted despite his region's lower sales and higher stales. The plaintiff argues that Kern's region consistently failed to meet company standards for “work-withs” and route riding, yet Kern faced no disciplinary action. Testimony indicates that while Kern did not always meet these standards, he made consistent efforts, unlike the plaintiff, whose performance was consistently below standard. The sales strategies were tailored for each region due to significant logistical differences, with Region 2 receiving more financial resources, contributing to better sales performance compared to Region 3.

Kern testified that he never received any written reprimands or threats regarding his job security from his supervisor, Brank, and had less direct contact with him compared to when he became the RSM in St. Louis. The plaintiff claims Brank imposed stricter demands on him than on Kern, particularly regarding “work-withs” and route riding, and that Kern had no warehouse responsibilities during his tenure as RSM for Region 2. After the plaintiff's demotion, Region 2 lacked an RSM for two to three months until Bruner was appointed, but evidence regarding Bruner's term is deemed irrelevant as the plaintiff primarily compares himself to Kern.

Witness Rich Daniels' testimony contradicts Kern's, claiming he did not engage in “work-withs” with Kern, but Kern asserts this is false, noting Daniels' poor performance and issues with attendance under the plaintiff's management. The court finds Kern's account more credible, while another witness, Robert Patterson, recalled only one “work-with” with Kern during his time as RSM for Region 2.

Kern testified that Patterson exhibited an “attitude” problem, which was documented in his job performance evaluation. Kern, who served as the Region 2 RSM, found it challenging to meet the standards in that region while also managing Region 3. His stress and depression led to a hospital visit in 1991, indicating the difficulty of his dual responsibilities. The court found Kern's testimony credible. The plaintiff failed to demonstrate that his demotion was racially motivated by comparing himself to Kern. He alleged that Brank's alleged lies and biased reprimands motivated the demotion, claiming Brank aimed to portray him as unsuitable for the RSM position. The court dismissed the claim that Brank used racial slurs, finding it unsupported by evidence. The court noted that Brank, a demanding supervisor, was implementing aggressive management strategies consistent with Borden's approach to competing in the snack food market, which differed significantly from the plaintiff's previous experience. The evidence suggested that the conflicts between the plaintiff and Brank were largely due to differing management styles, as evidenced by their extensive correspondence urging adaptations to new marketing strategies. While the court acknowledged the plaintiff's hard work, it emphasized that the determination of acceptable job performance is not for the employee to decide.

The defendant’s employee is required to adhere to company policies as instructed by his supervisor. Evidence indicates that the supervisor frequently had to remind the manager about these standards and expressed frustration at the manager's resistance to change. The decision-makers who demoted the plaintiff did not merely accept the supervisor's recommendation but conducted their own assessments, including personal meetings with the plaintiff and evaluations of market conditions in his area. While the decision-makers considered the supervisor's input, they independently investigated the situation.

The court finds the plaintiff's claims of unfair treatment by the supervisor unconvincing due to their subjective nature and lack of external corroboration. The plaintiff's actions, such as selling stale products and failing to follow company standards, contributed to the decision to demote him. He often made excuses for his performance deficiencies rather than accepting responsibility. For instance, when presented with a development plan aimed at addressing his performance issues, he dismissed it as biased and only made a half-hearted attempt to comply. Furthermore, when given another specific improvement plan, the plaintiff ignored it, believing it was optional.

The court concludes that the plaintiff's issues stemmed from his refusal to acknowledge the supervisor's authority and adapt to company expectations. Attempts by the plaintiff to label the supervisor as a bigot based on alleged comments about employees of different races do not substantiate his claims, as the evidence shows that the supervisor was critical of all employees, regardless of race.

Brank, a newly joined supervisor, was likely unfamiliar with all employees' names. While a statement referred to Harris as black, any derogatory implication seemed related to his weight rather than his race. Although Brank occasionally criticized Harris's performance, he had previously recommended him for a Regional Sales Manager (RSM) position in 1989-90. Greg Vaughn, a black warehouse worker, expressed a dislike for Brank, accusing him of undermining the plaintiff. Nonetheless, Brank had also recommended Vaughn for a lead foreman position, which was approved after negotiations with the Union. In December 1988, Brank praised Vaughn’s management of warehouse operations.

Brank was particularly critical of two white District Sales Managers, Carmack and Zavorka, even placing Zavorka on a performance improvement plan due to ongoing poor performance. The Court stated its role was not to evaluate the accuracy of Brank's performance critiques but to determine if his actions were racially motivated regarding the plaintiff's demotion. Although the plaintiff asserted that Brank’s memos demonstrated racial bias, the Court found no evidence of such bias. Brank’s performance evaluation of Gipson was not deemed grossly inaccurate, despite Gipson's disputes. Testimony indicated that six years later, buyers from Schnuck and National could not recall requesting Gipson's removal from their accounts but acknowledged he did not consistently provide quality service.

The plaintiff received both critical and complimentary feedback from Brank, with critiques framed constructively rather than derogatorily. Many memos included offers of assistance to help the plaintiff meet expectations. The plaintiff’s interpretations of these documents often reflected his own hostility. For instance, Gipson reacted negatively to Brank's directives regarding a sales audit and additional reporting requirements, considering them unnecessary instead of fulfilling the requests.

The Court determined that the plaintiff failed to demonstrate pretext or racial motivation behind his demotion. Differences in treatment between the plaintiff and Kerns were justified by the logistical needs of the two regions and Kerns' unique role following the plaintiff's demotion. The Court clarified that different treatment alone does not establish disparate treatment, referencing *Mann v. Frank*. The contentious relationship between Brank and Gipson stemmed from a personality conflict rather than racial bias, which was attributed to the plaintiff's combative attitude. The defendant's decision to demote the plaintiff was based on informed business judgments rather than discrimination, as supported by *Charles v. Allstate Ins. Co.* and *Crittendon v. Columbia Orthopaedic Group*. The Court found no credible evidence of racial motivation for the decision. Consequently, the Court ruled in favor of the defendant on the merits of the plaintiff's complaint.

Additionally, the Court noted that the plaintiff's Title VII action was to be tried without a jury because it arose before the Civil Rights Act of 1991. While KAS Snacktime was named as the defendant, it was agreed that Borden, Inc. was the real party in interest, as KAS Snacktime was a division of Borden. The lawsuit centered on alleged discriminatory treatment regarding supervision compared to Kerns, despite the plaintiff having better sales performance and lower expenses. The Court faced challenges in assessing the credibility of testimonies regarding statements made by Brank since neither party included him as a witness. The Court acknowledged the limitations in evaluating the evidence, including the unclear context of certain documents submitted by both parties.

The Court's findings regarding the March 23, 1988 meeting are based on the testimonies of the plaintiff and Kester, along with Kester's personal notes (Exhibit FFFF) and a formal memorandum (Exhibit IIII). Bruce Cutting became Vice-President of Sales in May 1988, succeeding Pat Miller. The term "pulling a route" refers to supervisors handling routes not assigned to regular sales personnel, while "route-riding" involves supervisors accompanying salespeople to ensure proper performance. Both Cutting and Kester indicated that the plaintiff's race was a factor only in the decision to offer demotion rather than termination. The trial presented substantial evidence from the plaintiff and defendant's witnesses regarding events after the plaintiff's demotion and his EEOC charge, including management changes and a reprimand for the plaintiff's behavior. Although the Court had previously limited the claim to the time of the EEOC filing, it permitted the introduction of post-EEOC evidence, acknowledging its relevance but assigning it little weight in relation to the claim.