WADE NELSON V. FAMILY GENERAL STORES

Wade Nelson is a 53-year old white male who has been employed with Family General Stores for a period of 18 years. He started as an hourly associate, moved up to assistant store manager, and for the last 6 years has worked as a store manager at three different stores in his district. While Nelson had always been a stable or average performer, his performance had never been "stellar". At his last two stores, he had been placed on performance improvement plans for the store in efforts to increase revenue, profitability, and complaint ratios. In both cases, he met the minimum standards after a 120-day review period. In both situations, he was shortly thereafter transferred to a different store.

In February 2018, Nelson was transferred to a store in his district which was located in a college town and which had been struggling of late. The store did not show improvement and Nelson was placed on a performance improvement plan for the store in June 2018. As part of the PIP, he was required to meet with district manager, John Phillips, every 30 days to monitor progress. He was never told he would be terminated if he failed to meet standards.

The PIP included certain new metrics, including sales per employee, shrinkage, conversion rate, average transaction value, stock turn, complaint ratio, and overall revenue and profitability. Each store in the company utilizes these standards, but what is acceptable varies from store-to-store, based on the size and demographics of each store. While Nelson met some of the standards, for the majority of them he did not. During his meetings with the district manager, he complained that the metrics were unfairly applied to him as the store was located in a college town and the majority of his employees were college students working part-time, with little initiative to improve the store's performance.

On December 1, 2018, Phillips offered Nelson the opportunity to resign and receive a severance package, consisting of 1 week's pay for every year of service. Offended by the offer, Nelson declined. He asked to be transferred one of his previous stores - or any other store - which request was denied. Accordingly, Nelson was terminated for inadequate performance - failure to satisfy PIP.

Nelson immediately filed a timely charge of age discrimination with the EEOC, where the case is now pending. In addition to the allegation that the PIP was unfairly applied to him, Nelson also asserts that during the pendency of his PIP, another district manager he had known for years told him that PIP's are a "death sentence" and a method the company uses to get rid of older male employees. Additionally, the store manager who replaced him at his previous store had stated that older managers have a hard time relating to the millennials working in the store these days. Nelson alleges his replacement is younger (44) and she has only been with the Company for 10 years. Nelson also alleges in his charge that he has been unable to provide for his family (wife and two sons living in the home) since the termination, has cashed out his 401k (with penalty of $10,000.00) and suffers from depression, anxiety, and sleeplessness. In fact, he has sought treatment for the sleeplessness from his family physician, who has prescribed Ambien as a sleep aid.

Prior to his termination, Nelson averaged $80,000.00 annually with bonuses. He has searched for management positions in retail since his termination, but was unable to locate a job. (He has an Associates Degree in Management from a community college). On June 1, 2019, Nelson did obtain a position as a floor sales associate for Lowes Home Improvement, making $18.00 per hour for 40 hours per week. He hopes to get into Lowes Management Training program in the future. If the case does not settle at mediation, it will be at least 18 months before it gets to trial.

what are the legal strengths and weaknesses?