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Mousaw v. Teton Outfitters, LLC

United States District Court, D. Idaho

September 30, 2016

ROBERT D. MOUSAW, Plaintiff,
TETON OUTFITTERS, LLC, an Idaho limited liability company; and TETON OUTFITTERS, LLC, d/b/a/ KLIM; and KLIM AGGRESSIVE SLED WEAR, an assumed business name of Teton Outfitters, LLC, and POLARIS INDUSTRIES, INC., a Minnesota corporation, Defendants.


          Honorable Edward J. Lodge U.S. District Judge.

         Pending before the Court in the above entitled matter is Defendants' Motion for Summary Judgment (Dkt. 17). Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record.[1] Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.


         Plaintiff Robert D. Mousaw starting working for Defendant Klim[2] as a Regional Sales Representative in 2009. Klim is owned by Defendant Teton Outfitters, LLC and is in the business of developing, manufacturing and selling motor sports gear and equipment. In December of 2012, Polaris Industries, Inc. purchased Teton Outfitters. All of Mousaw's payroll checks were from Klim. Plaintiff has never received a paycheck from Polaris nor been identified as a Polaris employee.

         Mousaw was hired by Klim's President, Justin Summers, and was 61 years old at the time of his hiring. Mousaw signed an acknowledgment of his receipt of Klim's employee handbook. (Dkt. 17-2, p. 26). The Employee Handbook sets forth unambiguously that employment at Klim is employment at will. (Dkt. 17-4, p. 31).

         In June of 2010, Summers asked Mousaw if he would be interested in switching his focus to selling Klim's motorcycle brand. Mousaw agreed and served as Southeast Regional Manager until December 2010.

         On December 1, 2010, Summers hired Mousaw as Klim's first full-time Outside Sales Representative. It is undisputed that Summers and the Director of Sales, Randy George, were a bit apprehensive about how long Mousaw intended to work before retiring, but Summers hired Mousaw for the position at an age of nearly 63 after Mousaw indicated to George he intended to work for approximately five more years. Mousaw's territory included Southeast Idaho, Utah and Western Wyoming and he was responsible for approximately 30 customer accounts.

         Summers maintains that Klim wanted a sales representative supporting this territory to live in Utah as it was the location of most of the important customers in the defined territory. Management was aware Mousaw lived in Ammon, Idaho, but commuted to Utah where he rented an apartment in order to better serve Utah customers. Plaintiff admits he sought reimbursement for his Utah accommodations, but Klim did not reimburse him for this expense, but did agree to reimburse him for the cost of his internet service in Utah.

         In February 2013, Klim hired Brett Nicholas as its Vice President of Sales and Marketing to create a more global and streamlined sales force as well as to add more outside salespeople as the business grew. The use of technology was important in order for Klim to track its sales activities. Salespeople were expected to use the company technologies such as the Business to Business (B2B) program and NetSuite.

         In April of 2013, Plaintiff received a performance review from his sales manager, Will Bozung. Bozung noted Plaintiff's strength in customer relations but also noted an issue regarding a lack of courtesy by Mousaw with his co-workers and asked Plaintiff to be more tactful (less aggressive) in his conversations with Klim employees. Bozung also wanted Mousaw to be more positive towards Klim. Finally, the review noted the need for Mousaw to utilize the NetSuite software required of the position.

         In August or September 2013, there was a sales meeting to discuss the global strategy and systems. At this meeting Mousaw indicated he was not going to use the company's technology or use his computer when meeting with clients. Mousaw complained that the B2B system was not used by his clients for ordering as it was not an efficient way to order, pay for and track goods. Nicholas found Mousaw's statements and attitude at the meeting to be negative and bordering on insubordination. Nicholas discussed the events at the meeting with Summers who was also concerned with Mousaw's behavior. Mousaw claims he was just responding to questions for feedback on the systems and he gave honest answers about why clients did not use B2B. Plaintiff does not deny he didn't encourage customers to use B2B and he that he did not use the software provided to track orders and allow Klim to track orders. (Mousaw Depo., 73:2-19, Dkt. 17-4, p.11.)

         In November 2013, Mousaw had a performance review from his sales manager Dustin Pancheri. Pancheri noted Mousaw's positive drive and relationships with clients. The review also noted that Mousaw can be abrasive while interacting with Klim personnel and that Mousaw had said some things that were not reflective of the Klim message. Mousaw was instructed that accurate communications were important and misleading or inaccurate information cannot happen. This review also indicated Mousaw was behind on some goals. Mousaw responded that this was due to a lack of product. The review also notes Mousaw was resisting change and not willing to adapt to certain technology requirements. Pancheri felt Mousaw's reaction to the areas he wanted Mousaw to work on was not positive.

         It is undisputed that Mousaw grew the territory sales, was familiar with the industry and was very well liked by his customers. It is also undisputed that his territory's gross sales increased from approximately $500, 000 when first employed to over $1.6 million at time of his termination.

         In 2013, Nicholas was realigning its sales structure to support its global strategy and gain market share. The realignment led to certain layoffs, the hiring of new salespeople, and moving other employees into newly restructured territories. This included two new salespersons (both age 64) being hired to manage a newly created territory for Tennessee, Georgia, North Carolina and Kentucky and another new territory for Colorado and New Mexico.

         Plaintiff's former territory was dissolved. Instead, the company had a Utah territory and planned to have the Sales Manager Pancheri service the Idaho and Wyoming clients that Mousaw had been servicing. It was determined by Nicholas and Summers that Mousaw did not fit the company's plans to reorganize and use more technology to build a North America sales structure. Summers states in his affidavit that he had lost confidence in Plaintiff's ability to represent Klim within the new structure and decided to terminate his employment. Justin Summers Aff., Dkt. 17-7, ¶ 14. Mousaw's territory was dissolved with Pancheri agreeing to service Mousaw's customers.

         On December 19, 2013, Klim's Human Resource Director Sandi Landon along with Pancheri and Klim's National Sales Manager Paul Hepworth met with Mousaw and advised him that he was being terminated due to the restructuring. It is disputed by the parties who decided the separation should be described as a “retirement” to other employees and customers. There is no evidence Plaintiff objected to Klim describing Mousaw's leaving as a retirement. Plaintiff claims (and it is not disputed by Klim) that he did not want to retire and intended to continue working. Plaintiff was 66 when he was terminated.

         Plaintiff acknowledges that no discriminatory or inappropriate comments were ever made towards him or about him by managers or other workers at Klim. Plaintiff also acknowledges he was not advised at the meeting on December 19, 2013, that his termination was due to or because of his age.

         In January of 2014, it was determined Pancheri did not have sufficient time to serve all customers in Mousaw's former territory. Klim decided to create a new Utah territory and hired a new sales representative who lived in Utah for the Utah territory, Brandon Archibald. Archibald was 24 years old when he was hired. Archibald has a degree in Business Management but did not possess prior marketing in outdoor clothing unlike Mousaw who had many years of marketing in the motorcycle and snowmobile industry.

         Plaintiff has presented evidence that Archibald did handle some sales in Idaho and Wyoming in early 2014. Klim does not dispute that Archibald had some accounts in Idaho based upon their physical proximity to his Utah clients and that he may have processed some Wyoming sales orders as well. It is also undisputed that Archibald took over a majority of Mousaw's Utah clients, but he also generated new Utah customers who were not previously customers of Klim.

         On November 25, 2014, Plaintiff filed his Complaint alleging he was wrongfully terminated due to his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et. seq. Plaintiff also states Defendants deprived Plaintiff of both substantive and procedural due process in violation of the Fifth and Fourteenth Amendment to the U.S. Constitution as enforced by 42 U.S.C. § 1983. Defendants deny Plaintiff was terminated due to his age. Defendants filed a motion for summary judgment on October 29, 2015.

         STANDARD ...

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