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Griddine v. GP1 KS-SB, Inc.

United States District Court, D. Kansas

February 28, 2019

THOMAS E. GRIDDINE, Plaintiff,
v.
GP1 KS-SB, INC., d/b/a Baron BMW and GROUP 1 AUTOMOTIVE, Defendants.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiff Thomas Griddine brings this employment action against Defendants GP1 KS-SB, Inc., d/b/a Baron BMW (“Baron”) and Group 1 Automotive. Griddine, a former employee of Baron, claims that Defendants discriminated against him on the basis of age, resulting in his constructive discharge from Baron. Now before the Court are Defendants' Motion for Summary Judgment (Doc. 77) and Griddine's Motion for Summary Judgment on Affirmative Defense of After-Acquired Evidence (Doc. 79). The motions are fully briefed and the Court is prepared to rule.

         In his Amended Complaint, Griddine asserted claims for constructive discharge on the basis of age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (“ADEA”) (Count I), retaliation under the ADEA (Count II), race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Count III), retaliation under Title VII (Count IV), race discrimination under 42 U.S.C. § 1981 (Count V), and retaliation under § 1981 (Count VI).[1] In his response to Defendants' motion for summary judgment, however, Griddine states that he is “elect[ing] not to oppose the Defendants' motion with respect to Counts II through VI.”[2] Thus, Griddine's only remaining claim is for constructive discharge on the basis of age (Count 1) and his other claims are dismissed with prejudice. For the reasons set forth in detail below, Defendants are also entitled to summary judgment on Count I and this case is dismissed with prejudice in its entirety. The Court therefore denies as moot Griddine's Motion for Summary Judgment on Affirmative Defense of After-Acquired Evidence.

         I. Summary Judgment Standard

         Summary judgment is appropriate if the moving party demonstrates “that there is no genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.”[3]In applying this standard, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[4] “There is no genuine [dispute] of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.”[5] A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”[6] A dispute of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.”[7]

         The moving party initially must show the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law.[8] In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial need not negate the nonmovant's claim; rather, the movant need simply point out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.[9]

         Once the movant has met the initial burden of showing the absence of a genuine dispute of material fact, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”[10] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[11] Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”[12] In setting forth these specific facts, the nonmovant must identify the facts “by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”[13] To successfully oppose summary judgment, the nonmovant must bring forward “more than a mere scintilla of evidence” in support of his position.[14] A nonmovant “cannot create a genuine issue of material fact with unsupported, conclusory allegations”[15] or evidence based on mere “speculation, conjecture, or surmise.”[16] Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”[17]

         II. Evidentiary Objections to Statements of Fact

          Before turning the parties' statements of fact, the Court must resolve both sides' objections to certain evidence offered by the opposing party.

         A. Griddine's Objections to Stockwood Declaration Under Federal Rules of Civil Procedure 56(c) and 37(c)(1)

         In support of their motion for summary judgment, Defendants offer the Declaration of Julie Stockwood, Baron's Human Resources Manager. Griddine objects to certain statements in Stockwood's Declaration on the basis that they are not supported by admissible evidence as required by Fed.R.Civ.P. 56(c)(2), are not based on personal knowledge as required by Fed.R.Civ.P. 56(c)(4), and/or are inadmissible under Fed.R.Civ.P. 37(c)(1) because they rely on evidence that Defendants failed to produce in compliance with Fed.R.Civ.P. 26.

         Summary judgment evidence need not be “submitted ‘in a form that would be admissible at trial.'”[18] However, “the content or substance of the evidence must be admissible, ”[19] and Rule 56(c)(2) permits a party to “object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”[20] “Indeed, as the advisory committee notes to the 2010 Federal Rule amendments explain: ‘The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.'”[21] “The requirement is that the party submitting the evidence show that it will be possible to put the information, the substance or content of the evidence, into an admissible form.”[22]

         Further, Rule 56(c)(4) provides that “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”[23]Similarly, D. Kan. Rule 56.1(d) provides that “[a]ffidavits or declarations must be made on personal knowledge and by a person competent to testify to the facts stated that are admissible in evidence.”[24] Finally, Rule 602 of the Federal Rules of Evidence provides that “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”[25]

         “Although affidavits are entirely proper on summary judgment, the content or substance of the evidence contained therein must be admissible.”[26] And “[u]nder the personal knowledge standard, an affidavit is inadmissible if ‘the witness could not have actually perceived or observed that which he testifies to.'”[27] Thus, an affidavit “asserting personal knowledge must include enough factual support to show that the affiant possesses that knowledge, ”[28] meaning that the affiant must “affirmatively set forth the bases upon which [he or she] relies . . . in making the statements asserted.”[29] However, Rule 56(c)(4)'s “requirements of personal knowledge and competence to testify may be inferred if it is clear from the context of the affidavit that the affiant is testifying from personal knowledge.”[30]

         In the first paragraph of her Declaration, Stockwood states that she has been Baron's Human Resources Manager since “early 2016, ” which means that she began working at Baron only a few months before Griddine resigned his employment there in April of 2016.[31] In the second paragraph of her Declaration, Stockwood states: “I am over eighteen years of age, am of sound mind, and am competent to make this declaration. I have personal knowledge of the facts stated herein.”[32] This statement is Stockwood's only attempt at establishing that she has personal knowledge of the facts to which she attests. And this statement, standing alone without factual support, is insufficient to establish personal knowledge.[33] Accordingly, many of Stockwood's statements are inadmissible as set forth below.

         In paragraphs 11-13, Stockwood provides “the average closing ratio” for different kinds of customer leads (i.e., internet, showroom, and phone leads), and purports to base this information on unspecified documents or data from Baron's Customer Relations Management (“CRM”) system. In paragraphs 14-16, she states various facts about the typical content of internet leads, and Baron's receipt of and practices for distributing such leads among Client Advisors. In paragraph 17, Stockwood describes Baron's “Customer Protective Policy, ” which she states generally protects a prospective client who has made contact with a Client Advisor from being assigned to or taken by another Client Advisor for a specified period of time, subject to certain exceptions. In paragraph 19, Stockwood discusses a situation in which a customer with whom Griddine had previously met was reassigned to a different Client Advisor, again purportedly basing her statements on unspecified data from the CRM system. Nowhere, however, does Stockwood describe how she-in her role in human resources, not sales-has acquired personal knowledge of the CRM system or data extracted therefrom, the handling of customer leads, or the implementation of any “Customer Protective Policy.” Nor can the Court infer from her position as Human Resources Manager that she would necessarily have personal knowledge of these matters, which relate to Baron's sales efforts.

         In response to Griddine's objection to the foregoing paragraphs of Stockwood's Declaration, Defendants state that Griddine's assertion that Stockwood lacks personal knowledge is “speculative, ”[34] and that “[i]t seems obvious that the HR Manager for the dealership would have knowledge of the general operating procedures within the dealership, including in the Pre-Owned Sales Department, and that Stockwood would have acquired further and more specific information about all of these matters in relation to her dealings with Griddine.”[35] Whether it seems obvious to Defendants that Stockwood would have personal knowledge is not the test. Rather, as the proponents of Stockwood's Declaration, Defendants bear the burden of showing that she has based her statements on personal experience or observations. Defendants have not met this burden as to paragraphs 11-17 and 19. The Court therefore will not consider these statements in accordance with Rule 56(c).

         Griddine's objections to paragraphs 11-13 and 19 of Stockwood's Declaration pursuant to Rule 37(c)(1) are also well taken. Griddine argues that these statements are inadmissible because they rely on evidence that Defendants failed to produce prior to the discovery cut-off, specifically “pages or files” from Baron's CRM system.[36] Fed.R.Civ.P. 37(c)(1) provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”[37]

         A district court has discretion in deciding whether a Rule 26 violation is harmless or substantially justified.[38] In so deciding, the Court examines several factors: “(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness.”[39] The burden to demonstrate that the failure to disclose is harmless or substantially justified is on the party who failed to properly disclose.[40] Defendants make no attempt to demonstrate that their failure to disclose CRM system data was harmless or substantially justified, choosing instead to rely on alternative evidence to support certain of the statements of fact in question.[41] The Court therefore declines to consider paragraphs 11-13 and 19 based on Rule 37(c)(1) in addition to Rule 56(c).

         B. Defendants' Hearsay and Rule 56(c) Objections to Griddine's Evidence

         1. Deposition Testimony of Pennie Murray, Ph.D.

         Griddine cites to the deposition testimony of Pennie Murray, Ph.D.-his “peer coach” or “co-coach”-to support his contention that he was discriminated against and that his working conditions at Baron deteriorated to the point that he was forced to resign. Specifically, Griddine relies upon Dr. Murray's testimony about how he described his work situation to her, what he told her were the sources of his problems at work, and what he told her about the mental and physical effects these issues had upon him.[42] Dr. Murray testified that she had no personal, firsthand knowledge of events that transpired at Baron, and that her only knowledge was based on what Griddine told her.[43] Defendants object to Dr. Murray's deposition testimony about what Griddine said to her on the basis that it consists of inadmissible hearsay.

         Hearsay is a statement that the declarant does not make while testifying at the current trial or hearing and that a party offers to prove the truth of the matter asserted.[44] Under Fed.R.Evid. 802, hearsay is inadmissible except as provided by law.[45] Again, summary judgment evidence need not be “submitted ‘in a form that would be admissible at trial, '”[46] but “the content or substance of the evidence must be admissible.”[47] “Fed. R. Civ. P. 56(c)(1)(A) specifically permits a party to support its factual assertions by means of a deposition transcript or affidavit, even though these are forms of evidence that are usually inadmissible as hearsay at trial.”[48]“Courts, however, should disregard any inadmissible statements (e.g., hearsay) contained within affidavits or deposition transcripts that could not be presented at trial in any form.”[49] “Thus, although evidence presented in the form of an affidavit or deposition at the summary judgment stage can be ‘converted' in form into live testimony at trial, the content or substance must be otherwise admissible, and any hearsay contained in an affidavit or deposition remains hearsay beyond a court's consideration.”[50]

         Dr. Murray's deposition testimony about statements Griddine made to her consists of inadmissible hearsay unless an exception to the rule against hearsay applies. Without expressly saying so, Defendants appear to argue that the exception provided for in Fed.R.Evid. 803(4)- pertaining to statements made for medical diagnosis or treatment-does not apply here.[51] While Rule 803(4) may extend to statements made to mental health professionals, [52] Dr. Murray testified that she provides neither medical treatment nor psychological counseling. Dr. Murray testified that she is “absolutely not” a physician, holds no license relating to psychological counseling or clinical social work, and does not claim to provide any kind of psychological counseling.[53] Rather, Dr. Murray testified that she is a “self-healing activist, ” that her area of expertise is “emotional awareness, ” and that her approach to working with Griddine involved “[m]ore of a holistic approach to work/life balance.”[54] The Court agrees with Defendants that this exception does not apply here in the context of the “peer coaching” Dr. Murray provided to Griddine, as contrasted with medical diagnosis or treatment.[55]

         The Court also finds, however, that under the Fed.R.Evid. 803(3) exception for statements of the declarant's then-existing mental, emotional, or physical condition, certain of Griddine's statements to Dr. Murray are admissible to show his state of mind at the time of the statement, though not to establish the reason for his state of mind. Rule 803(3) excepts from the rule against hearsay

[a] statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.[56]

         “Rule 803(3) clearly sanctions the admission of a declarant's out-of-court statement concerning [his] then-existing state of mind.”[57] However, “[t]he state-of-mind exception does not permit the witness to relate any of the declarant's statements as to why he held the particular state of mind, or what he might have believed that would have induced the state of mind.”[58]

         Finding no other potentially applicable exception to or exclusion from the rule against hearsay, the Court does not consider Dr. Murray's statements about what Griddine said to her during their coaching sessions where those statements are offered for the truth of the matter asserted, with the exception of statements regarding Griddine's then-existing state of mind or emotional, sensory, or physical condition.[59]

         2. Declaration of Thomas E. Griddine and Summary Charts

         Griddine submits a declaration in support of his own statements of fact, attached to which are two charts that he apparently prepared himself concerning the hours he and three other Client Advisors worked during twenty-six pay periods from April 2015 to April 2016.[60] The two charts are not labeled, do not explain how they are different, and contain various calculations comparing Griddine's hours worked to those worked by his peers. For example, in addition to tracking overall hours worked, Griddine attempts to calculate how many times Client Advisors worked less than forty hours in a week or clocked in early or late.

         Griddine's Declaration states that his “personal knowledge of the facts declared in this declaration and in the two charts attached to this declaration is derived from documents produced by Defendants in this lawsuit during the discovery phase of the case.”[61] Although Griddine provides the bates range for the documents in question and states that they “appear to be true and accurate records maintained during the ordinary and regular course of business at Baron BMW, ” he does not state what these documents consist of or attach them for the Court's review.[62] He concludes his Declaration by stating that the “declaration and [his] review of the referenced documents are intended to satisfy the requirements of Fed.R.Evid. 1006.”[63]

         Defendants object to Griddine's Declaration on the ground that he lacks personal knowledge of the matters to which he attests in violation of Rule 56(c)(4), and because the two charts prepared by Griddine are unclear, unverifiable, and based on documents produced by Defendants that Griddine has failed to authenticate.

         Fed. R. Evid. 1006 provides that “[t]he proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.”[64] However, “[i]n order for a summary to be admissible, it must be drawn from records that are otherwise admissible.”[65] As the proponent of the charts, the burden is on Griddine to “lay a proper foundation for the admission of the original materials upon which the exhibit is based.”[66] Rule 1006 “[s]ummaries must be accurate and non-prejudicial, ”[67] and must be “limited to what is actually within the content of the underlying documents. The summaries shall not include any testimonial, interpretive, or inferential statements drawn from the content of the underlying documents.”[68] “The admission of summaries under Fed.R.Evid. 1006 is within the sound discretion of the trial court, ”[69] and here, the Court finds that Griddine has failed to (1) lay a proper foundation for the admission of the documents underlying his charts, and (2) establish the proper application of Rule 1006.

         The documents Griddine used to create his charts-which he states “appear to be true and accurate records maintained during the ordinary and regular course of business at Baron BMW”[70]-may be business records that fall within the Fed.R.Evid. 803(6) exception to the hearsay rule or statements of a party opponent that fall within the Fed.R.Evid. 801(d)(2)(A) exception.[71] Further, “[d]ocuments produced during discovery that are on the letterhead of the opposing, producing party are authentic per se under Rule 901 of the Federal Rules of Evidence.”[72] Thus, while the documents Griddine relied upon in creating his charts might be admissible-and his review of those documents might be sufficient to establish personal knowledge of their contents under Fed.R.Civ.P. 56 and Fed.R.Evid. 602-Griddine's Declaration does not provide enough information for the Court to make this assessment and, therefore, he has failed to lay a proper foundation for the admission of those documents.[73] Although Griddine provides a bates range for the documents in question, he neither states precisely what they are nor attaches them, and the Court is left without a clear picture of the source, nature, or content of the underlying material.[74]

         Further, Griddine has not established the applicability of Fed.R.Evid. 1006. First, it is not clear to the Court, without seeing any of the 223 pages of documents in question, that those documents are so voluminous as to require a summary, [75] nor can the Court assess whether Griddine has accurately summarized those documents in his charts, which are difficult to decipher. Second, Griddine's charts appear to include some “‘analysis' of the underlying evidence, rather than simply a summary of that evidence.”[76] Accordingly, the Court will not consider Griddine's Declaration or the charts attached thereto.[77]

         III. Uncontroverted Facts

         Having resolved the foregoing evidentiary issues, the Court turns to the parties' statements of fact, keeping in mind that factual disputes about immaterial matters are not relevant to a summary judgment determination; rather, immaterial facts and factual averments not supported by the record are omitted.[78] If controverted, the facts are construed in the light most favorable to the plaintiff.[79] However, as noted above and as particularly relevant here, a plaintiff's opinions and subjective interpretations of the evidence are insufficient to oppose summary judgment.[80] “Unsubstantiated allegations carry no probative weight in summary judgment proceedings.”[81] Rather, “[t]o defeat a motion for summary judgment, evidence, including testimony, must be more than mere speculation, conjecture, or surmise.”[82] Although Griddine's contentions in the Pretrial Order are not uncontested facts, the Court includes them at the start of each subsection below to provide context.

         A. The Parties

         Defendant GP1 KS-SB, Inc., d/b/a Baron BMW (“Baron”), is an automotive dealership located in Merriam, Kansas that specializes in the sale and service of new and pre-owned BMW vehicles. Defendant Group 1 Automotive, Inc., headquartered in Houston, Texas, owns and operates collision centers, franchises, and automotive dealerships throughout the United States, including Baron. Group 1 Automotive and Baron are separately incorporated, and Baron was Griddine's employer during the entirety of the time period in question.

         Plaintiff Thomas Griddine is an African American male. On January 5, 2015, Steve Zeigler, Baron's Pre-Owned Sales Manager, hired Griddine as a Client Advisor in the Pre-Owned Car Sales Department. Griddine was fifty-five years old when he began his employment with Baron. Griddine was supervised by Zeigler, until Zeigler left Baron on March 31, 2016, and by Assistant Pre-Owned Sales Manager, Steve Genova, until Genova left Baron on March 1, 2016. Following the departure of Zeigler and Genova, Griddine reported to Baron's General Sales Manager, Brad Pointer.

         B. Griddine's Desk Placement

         In or about June 2015, Zeigler moved Griddine's desk to the back of the Pre-Owned Car Sales Department area, and Griddine contends that this “unfavorable placement in his desk assignment”[83] obscured his view of arriving customers. Griddine concedes that when his desk was moved to the Pre-Owned Car Sales Department, other Client Advisors also had their desks located in that department. He also testified that other Client Advisors moved desk locations while he worked at Baron, but he does not know why those Client Advisors' desk assignments changed.

         C. Lead Distribution and “House” Deals

         Griddine contends that he was subjected to “[u]nfavorable distribution of customer leads that came to the dealership through the internet and through ‘house' deals under the round-robin format used by management, ” and “unfavorable distribution of customer leads that came to the dealership through the internet on the basis of leads that were more likely to result in sales.”[84]

         Sales leads from prospective Baron customers are obtained, among other methods, by walk-in traffic at the dealership (showroom leads), by telephone, or via the internet. A showroom lead occurs when a prospective customer walks onto the Baron lot or into the showroom. A Client Advisor who is present in the dealership and not otherwise busy with another customer obtains a showroom lead by greeting a customer who walks onto the lot or into the showroom. A telephone lead occurs when a prospective customer calls the dealership. The receptionist answers the phone, determines whether the potential customer is interested in new or used cars, and then transfers the call to the appropriate department. When a customer call is transferred to the Pre-Owned Car Sales Department, all of the Pre-Owned Client Advisors' phones ring at the same time, and the first Client Advisor to pick up the phone receives the lead.

         Griddine testified that the term “house deal” refers to “where maybe you're the manager and one of your friends wants to buy a car and so he calls you up and says, hey, I want to come over and buy a car. Well, then that manager gives that customer to someone, one of the client advisors.”[85] Again, Griddine contends that “house deals” were to be assigned to Client Advisors using a “round robin” format.[86]

         Genova testified regarding a distinction between a “house deal” and a “referral from service.” He described a “house deal” as when he, a manager,

personally would have a friend, relative, or somebody that I know that is looking for a car, they want to buy a vehicle, and I've pretty much have the deal done. In other words, I have negotiated the deal, I have worked out all the numbers, have appraised their trade, if there is a trade, and if you're on a pre-owned vehicle, have told them what the vehicle is, given them a price on the vehicle, and really the only thing that's really left to do is to maybe take them on a demo drive and then finish doing all the paperwork. That's my determination of what a house deal is.[87]

         Regarding whether “house deals” would be assigned to Client Advisors, Genova testified:

If I did the entire process, and did everything and did all the paperwork from beginning to end, which me, it's not uncommon for me to do that, but I wouldn't do it all the time, I would make that a house deal under “Other, ” and no assignment to a client advisor would be given. In other words, they're not going to get paid on the deal, they're not getting any commission, because no client advisor did anything on the deal, other than me, as a manager. I personally wanted to take care of them.[88]

         Genova testified that referrals from non-manager employees of Baron are not “house deals, ” but “referrals from service, ” and that these referrals are assigned to Client Advisors who are available at the time:

Q: Even though that's not a house deal, would you then assign out that referral to one of the client advisors?
A: Whoever was standing there and was available, absolutely, yes.
Q: It doesn't sound like that would be a part of the round-robin format, then-
A: No.
Q: -if it's just somebody who's-
A: No, sir.
Q: -within your eyesight?
A: No. Who's ever right there, not busy, if they need to-and needed help, we needed somebody to help them, if they're there, and they're not busy, and we can see where they're at, if we can't find somebody, we'll go try to find another pre-own client advisor if they're on a pre-owned car-
Q: Right.
A: -and then make sure that they're getting help, but that's not a house deal. That's a referral from service, and then it's up to the client advisor to figure out a way to sell them a car.[89]

         Zeigler testified-in apparent contradiction to Genova's testimony-that referrals from non-manager employees are included within his definition of the term “house deal”:

Q: . . . House sale was a sale made to an employee or nonclient adviser's/employee's family member, friend, friend of a manager, or to a previous customer whose client advisor was no longer with the dealership? Do you see that?
A: Yes.
Q: Is that an accurate definition of what a house sale was?
A: Kind of, except the last when you talked about friend-previous customer, no. That's not-it wouldn't be a house sale. You assign them to a client, or one of the client advisers or sales people.[90]

         Zeigler testified that Baron had “[m]aybe one [house deal] a month, maybe, ” though it is unclear exactly which type of deal he is referring to.[91] It is also unclear from the record how “house deals, ” as defined by Genova, are distributed to Client Advisors in the event that the manager decides not to handle the entire deal himself, nor does either party establish the monthly number of “referrals from service.”

         Internet sales leads are distributed in round-robin format by sales managers to the Client Advisors who are present and available in the dealership at the time the sales manager receives the lead. Both Genova and Zeigler were responsible for distributing internet leads to the Pre-Owned Car Sales Client Advisors. Genova testified that while “BMW's parameters were an hour, ” Baron's goal was to have a Client Advisor respond to an internet lead within thirty minutes of the dealership receiving it.[92]

         Zeigler testified that “[a]s a general, broad statement, ”[93] more internet leads tend to come in on Sundays, when Baron is closed, than on any other day of the week. More specifically, Zeigler testified:

Q: . . . Do we agree that more of the internet leads came in on Sunday than any other day of the week?
A: Probably. I mean, Sundays, as I recall, were going to be, you know, 10, 20, whenever [sic] it was on a Sunday versus the typical overnight during the week which is a shorter time period obviously you might have got eight, 10, 12, whatever it was.
Q: And, so, if you were either scheduled to come in at 8:30 Monday morning or took it upon yourself to have the initiative or just chose to come in at 8:30 Monday morning you would get a [sic] disproportionate leads that came in through the internet?
A: Depending on who's there, how many leads you have, who's there, and when's the next person coming in, yeah.[94]

         As to whether Baron receives more internet leads on Sundays than on other days, Griddine testified as follows:

Q: So but do you know what the-what historically the dealership has seen in terms of the number of leads that are available when they come in Monday morning versus, let's say, the leads that are available that have come in overnight on-on Tuesday night, Wednesday morning, do-do you know what the difference between those is?
A: If I was a manager and I looked at all that, I could tell you that. But-
Q: But you don't know that for sure?
A: But I don't look at those numbers because I'm not a manager.[95]

         Zeigler testified that Client Advisors were scheduled to start the work day at staggered times. He also testified that Griddine was “not one of the first people” to arrive at work in the morning, and that “there were a lot of times where he would have to leave during the day to go take care of his mom.”[96]

         During their depositions, both Zeigler and Genova testified that the rate of conversion from a lead to a sale is higher for showroom and phone leads than it is for internet leads. Specifically, Genova testified that:

You're going to have-your stronger closing percentage is anybody that's walking in front of you. Your closing percentage, national average in the industry on Internet traffic is about ten percent. And that's a good-that's a good client advisor. Some would argue with [sic] seven to eight percent would be the national average closing rate on an Internet lead. So the-the Internet-the people that walk in and set an appointment or call on the phone and set an appointment, you get them at your store, they're in front of you, you're going to close 27 to 30 percent of those. So you have a higher closing rate on somebody who's invested their time to take time out of their day to come sit in front of you and give you that opportunity to try to sell them something.[97]

         Griddine testified that he does not know what percentage of internet leads turn into sales, stating: “I couldn't tell you the exact number because, again, I'm not-I'm not in upper management, so I don't crunch numbers and look at the stats.”[98]

         Griddine testified to his belief that Baron distributed internet leads according to the zip code of the prospective customer:

Q: What's the basis for-well, first let me ask you this: Do you believe that leads were in any way being assigned based on ZIP codes?
A: . . . A lead comes in, manager reads the lead. He can-those guys, again, like I said, I had a lot of respect for Genova and Zeigler because they're very good at what they do in terms of-in terms of the automobile business and their managerial skills, and they've got a good grasp of what's going on and that kind of thing. And that's why they read the leads. They read them, a guy can read a lead and tell whether or not in a sense, hey, this person's really a buyer. You know, I think this is a hot lead. Okay, this ZIP code attached to that is from an area where the household income could be 80, 000, where this ZIP code over here, this lead comes in and they're not asking the right questions, and it could be from a ZIP code of 64105 where the household income may be 15, 000. They're smart enough to know that. And so the answer to your question are they assigning leads based on what they read in ZIP codes? Absolutely.
Q: That's your belief?
A: That's my belief.[99]

         Griddine contends that potential customers who became buyers were more likely to reside in certain zip codes, and during his deposition referred to “charts” he prepared purporting to show some “correlation” between customer zip codes and lead assignment among Client Advisors.[100] However, these charts are not part of the record before the Court, [101] and Griddine does not point to any evidence that leads were distributed based on zip codes beyond his own speculative testimony. Regarding the buying power of customers generally-including customers from different zip codes-Griddine testified that “[y]ou can't judge a book by its cover. I learned that a long time ago just because-you just can't-you can't do that.”[102]

         Information related to leads, customers, and sales are tracked and maintained in Baron's Customer Relations Management (CRM) system. Every Client Advisor has access to the CRM system and can access and record activity related to customers and leads that have been assigned to that particular Client Advisor. The CRM system generates a report called an “Activity Report, ” which reflects the number of showroom, telephone, and internet leads assigned to each Client Advisor. House deals are not tracked separately in the CRM system as an independent category of leads, but are instead captured in the showroom lead category.

         From May 1, 2015 through April 30, 2016, the CRM Activity Report reflects that Griddine received 848 leads-the highest number of total leads among all Client Advisors in the Pre-Owned Car Sales Department-comprised of 276 showroom leads, 281 phone leads, and 291 internet leads. Rayan Awad (Egyptian male, age 34 as of April 2016), Ryan Ediger (Caucasian male, age 34 as of April 2016), and Brandon Shannon (Caucasian male, age 29 as of April 2016), also worked as Client Advisors in Baron's Pre-Owned Sales Department during Griddine's time there. From May 1, 2015 through April 30, 2016, Awad had 669 total leads (179 less than Griddine), comprised of 124 showroom leads, (152 less than Griddine), 106 telephone leads (175 less than Griddine), and 439 internet leads (148 more than Griddine). During the same period, Ediger had 788 total leads (60 less than Griddine), consisting of 216 showroom leads (60 less than Griddine), 106 phone leads (175 less than Griddine), and 466 internet leads (175 more than Griddine). Finally, Shannon had 833 total leads (15 less than Griddine), including 170 showroom leads (106 less than Griddine), 193 phone leads (88 less than Griddine), and 470 internet leads (179 more than Griddine). Neither party points to evidence of how many of the foregoing individuals' showroom leads were “house deals.”

         Griddine does not dispute the accuracy of the leads attributed to himself, Awad, Ediger, and Shannon, but does dispute that these individuals are “comparators.”[103] Although Defendants claim that Griddine identified these individuals as his comparators during his deposition, they do not point the Court to any such testimony. However, when explaining why Awad, Ediger, and Shannon had substantially more internet leads than other Client Advisors, Zeigler testified that these three individuals were his “go-to guys” because they were “the most aggressive” and were all “workaholic guys.”[104] Zeigler stated that in comparison to Griddine, Awad, Ediger, and Shannon “put in more hours, ”[105] and that “if you want to make more money you need to put in more hours, plain and simple.”[106]

         Posted in the Pre-Owned Sales Manager's office at Baron was a board on which the Client Advisors' names were listed in order from most sales to fewest. Griddine testified that when he saw his name at the bottom of the list shortly after he started at Baron, he told Genova that it would not be long before he was at the top of the list. Griddine testified that in response, Genova said, “I don't think you'll ever get there.”[107]

         D. Turnover Assistance

         Griddine contends that he received “unfavorable assistance from Zeigler and Genova through a ‘T-O' to attempt to close a sale.”[108] A “T-O, ” which is short for “turnover, ” refers to a Client Advisor receiving assistance from another Client Advisor or a manager in attempting to close a sale. Griddine did receive T-O assistance while at Baron, and testified that “when I've gone and asked for T-Os, I wasn't always told no or I'm too busy or something like that. I've had help with T-Os before. Just depends on how busy maybe a manager might have been at that time.”[109] When asked whether he could identify any instance in which he needed manager assistance with a sale and did not get it, Griddine did not specifically identify any such instance. When asked whether there was anything to which he could refer to “identify specifically what customer[s] that would be involved in this situation that you're talking about with manager assistance, ” Griddine testified, “That's something that I would have to think about, ” but again, did not identify any particular instance of being denied assistance with a customer.[110]

         E. Customer Protective Policy

         Griddine contends that he was subjected to “[n]on-enforcement of the Customer Protective Policy under which a Client Advisor's customer prospect would not be shared or redistributed for a set period of time after the Client Advisor's first contact with the customer prospect.”[111] Regarding this purported policy, Genova testified as follows:

Q: All right. As we describe it in [sic] the bottom of Page 4 there in the paragraph: Once a client advisor made contact with a prospective customer, the client advisor had a period of 30 days of exclusive contact with that customer. Are you familiar with that, let's say, procedure, if we're not calling it a “policy, ” at Baron?
A: Yes.
Q: And so that-is that an accurate statement of that customer procedure?
A: That's an accurate statement, with the exception I would say “exclusive, ” I wouldn't say “exclusive.” That's really a gray area, in my opinion. But that's my opinion.
Q: Was this rule or policy ever put down in writing at Baron?
A: Not to my knowledge. . . .
Q: I take it the policy or the procedure having to do with 30 days is intended to allow the advisor to try to develop a relationship with the prospective customer; is that fair to say?
A: 30-day window?
Q: Yes.
A: The whole idea of the 30 days would be, yeah, one, to build the relationship, two, and to make sure that you're having continuous contact. If you haven't had contact with a customer in six weeks and they come back, shame on the ...

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