United States District Court, D. Idaho
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.
MEMORANDUM DECISION AND ORDER
Honorable Edward J. Lodge U.S. District Judge.
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. 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.
Robert D. Mousaw starting working for Defendant
Klim 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.
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).
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 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
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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,