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USDC: EMPLOYMENT | AMERICANS with DISABILITIES ACT | MINNESOTA HUMAN RIGHTS ACT - age discrimination claims dismissed

1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
_______________________________________________________________________
JEFFREY LOEB,
Plaintiff,
v. ORDER
Civil File No. 05-720 (MJD/AJB)
BEST BUY COMPANY, INC. and BEST
BUY ENTERPRISE SERVICES, INC.,
Defendants.
________________________________________________________________________
David L. Shulman, Law Office of David L. Shulman PLLC, Counsel for Plaintiff
Jeffrey Loeb.
Charles O. Lentz, Janet C. Evans, Kari Thoe Crone, Kelly K. Pierce, Lisa L. Heller,
Sara Anspach Poulos, Stacey P. Slaughter, and Joel A. Mintzer, Robins Kaplan
Miller & Ciresi LLP, Counsel for Defendants.
________________________________________________________________________
I. INTRODUCTION
Before the Court is Best Buys Motion for Summary Judgment on Claims
Raised by Plaintiff Loeb [Doc. No. 29]. Oral argument was heard on December
15, 2006.
II. BACKGROUND
This case arises out of Plaintiff Jeffrey Loebs termination of employment.
In February 2000, Loeb was hired as an information services (IS) program
manager, and was assigned to manage various projects within the company. Loeb
2
was forty-four years old at the time he was hired. On or about July 2001, Loeb
was promoted to the position of IT leader, a position he held until January 2003
when he returned to an IS program manager position. Loeb received exceeds
expectations on his performance reviews in 2002, 2003, and 2004.
During this time, Best Buy had a retail operations model called customer
centricity. Best Buys customer centricity plan was an effort to focus the sale of
merchandise to customer groups with certain profiles. One of these groups
focused on selling to a fictitious customer named Barry who had an interest in
high-end merchandise. Beginning in mid 2003, Julie Gilbert was the lead on the
Barry team. Other Barry team leaders were Dean Kimberly and Shawn Score,
both of whom eventually left the team to take other positions within Best Buy.
Members of the Barry team were selected from other Best Buy departments
because they had specific knowledge or talent that would promote the goals of
the team. Most of the members of the Barry team were not paid from the Barry
budget code because they were considered shared resources who were
effectively loaned to the Barry project from other Best Buy departments.
During the second half of 2003, the Barry team decided to focus its efforts
on building a store within a store to sell high-end home theater products and
services. The concept was eventually dubbed the Magnolia Home Theater Store
(MHT). The teams goal became to open two prototype lab stores-within3
stores by May 2004 that, if successful, could be replicated on a very large scale in
Best Buy stores around the country. These first stores were intended to serve as
labs, allowing the team to refine the best methods for incorporating the MHTs
into existing Best Buy stores. The job of designing, building, and opening the
MHTs in such a short time involved coordination of many existing Best Buy
groups such as real estate, design, construction, merchandising, inventory, and
sales.
Loeb, who was working on customer centricity programs at the time, asked
Gilbert if the team could use his help on the project. There was no posting for any
job on the Barry team. Gilbert and Kimberly agreed to bring Loeb onto the team
to serve as a coordinator of the various groups working on the MHT lab stores.
Loeb was forty-eight years old at the time, but neither Kimberly nor Gilbert knew
Loebs age. At first, Loeb was a shared resource and reported to an IS
supervisor, but in April 2004, he was officially moved to the Barry team cost
center and began reporting directly to Kimberly and Gilbert. Shortly before he
officially joined the team, Loeb expressed an interest in having his role on the
team formalized with a written job description and title. Loeb drafted a
document that described his role on the team. Gilbert agreed that the document
generally . . . described his role as the person conducting the work of the various
groups that we needed to put together the MHT store-within-a-store concept.
4
(Gilbert Aff. 8.) This document was the only written description of Loebs MHT
position. Loeb identified the following roles and responsibilities for himself:
Business Planning and Execution
Manage all IOM planning and execution. Insure integration across
Barry IOM team, Barry CC stores, corporate business functions, and
core store initiatives.
Provide day-to-day work direction for the Barry IOM team
Publish integrated Barry business calendar on a weekly basis
Develop and manage a business planning process
Lead a monthly Barry business review
Provide a weekly status report/snapshot of Barry activity
Monitor and archive Barry H/T/V activity and results
Store Execution
Launch Represent the Barry team in Launch activities.
Communicate segment information to the Launch Team
Provide prioritization and direction to the Launch Team
Communicate Launch progress to the Barry Leadership Team
Transition from Test Manage the process to transition successful
value propositions out of the test stores into Barry stores
develop a process to measure VP H/T/V success and readiness
for export to other Barry stores
Schedule and prioritize VP transition timeline
Monitor and report on transition progress
New technology Head a multi-function working group to integrate
new technologies into seamless Value Propositions for Barry
Lead regularly scheduled meetings to develop new, [sic]
technology related VP for Barry
Develop a process for making these deployable, supportable,
and profitable
Partner with Lab store to deploy for testing
Strategy
Key participant in formulating strategy for the Barry segment.
5
Ad Hoc
Carry out other assigned ad hoc duties as assigned. Represent
leadership where requested.
Manage and direct the activities of a Project Manager
(Schulman Aff. Ex. I) (emphasis in original).
Loeb worked full-time on the MHT project, and was successful in that
position. Loeb was the oldest person on the Barry team. Gilbert testified that at
the time Loeb was transferred to the Barry team cost center, his position was not
intended to be temporary. (Gilbert Dep. 115.)
The Barry team had a strong team concept in which all members were
required to participate in Barry huddles which were much like sports team
huddles that ended with a cheer of the day. The management concept also
included such things as partnering with people, lack of hierarchy, very, very
feelings-based [management] . . . . more new age. (Loeb Dep. 156.) All Barry
team members were required to participate in these management techniques
regardless of their age.
The two original MHT stores were opened by May 2004, and the project
was expanded so that two more MHT stores were opened by August 2004. By the
time the second set of stores opened, this phase of the MHT project had come to
an end. (Loeb Dep. 76; Gilbert Aff. 12-13; Kimberly Aff. 8.)
6
Once the four prototype stores were successfully opened, Best Buy
concluded that the MHT store-within-a-store concept was a success, that the
strategy and design work regarding the prototypes was at an end, and that the
team had created a successful recipe that could be replicated in other Best Buy
stores. Thus, the Barry team now focused on actually replicating the successful
prototype into other stores around the country, a shift to what was called scaleup
mode.
In August 2004, Barry team leaders told Loeb that with the completion of
the MHT lab store project, the nature of the MHT work was going to change, and
since there would be a shift in the type of work being done by the Barry team,
there would not be a place for Loeb on the team. Gilbert felt that Loeb was not
interested in routine, nuts and bolts type work of processing the building of large
numbers of MHT stores, according the recipe we had prepared. He . . . was
interested in more high level strategic types of projects. (Gilbert Aff. 13.)
Kimberly and Gilbert believed that, based on conversations with Loeb that Loeb
would not be happy working on the scale-up project going forward. (Id.;
Kimberly Aff. 9, 10; Loeb Dep. 109-10.) At this time, Kimberly told Loeb that
since his work on the MHT project was coming to an end, he should begin looking
for work elsewhere within Best Buy or outside the company. Kimberly and Gilbert
7
agreed to talk to Best Buys HR department so that Loeb was given a reasonable
opportunity to find work elsewhere within Best Buy.
Loeb was surprised by the professed lack of work because at this time
customer centricity was at the center of everything [Best Buy did]. (Pl. Mem.
Opp. Mot. Summ. J. at 11 (citing Shulman Aff. Ex. AA at 1) (brackets in
original).) Best Buy planned to maintain eighteen lab stores, open eighty Barry
stores in the following year, and open 120 more Barry stores in the next two
years. In addition, there existed a three-year strategy for the Barry team that
included the continued development of value propositions involving everything
from dedicated check-out areas and telephone lines to private experience areas.
(Shulman Aff. Ex. AA, BB.)
On September 23, 2004, Loeb was given an official 60-day notice of
termination if he was unable to secure other employment within Best Buy. The
termination notice was signed by H.R. Vice President Randy Ross, and stated that
the termination was the result of the need to reduce the labor costs at its
corporate campus. (Id. Ex. R.) A memo from HR Director Karen Dekker stated
that Loebs position was eliminated as part of a reorganization designed to
streamline processes and eliminate redundant tasks. (Id. Ex. S.) Best Buys
Senior Corporate Council, Jane K. Kirshbaum, informed the EEOC that Loeb was
terminated as a result of staff reduction. (Id. Ex. U at 1.) In a staffing analysis
8
worksheet completed in September 2004, Gilbert stated that Loeb worked with
the Barry team to coordinate that launch of the first four Magnolia Home Theater
stores in California. This work started in January, and was effectively completed
by mid-September. At this point, the leadership of the Barry team has determined
that Jeffs current role is no longer needed on the team, since MHT is now in
scale-up mode (as opposed to launch mode). (Id. Ex. Q.)
Although he made several contacts within Best Buy seeking another
position, and Gilbert talked to a number of people within Best Buy on his behalf,
Loeb did not find another job at the company and was terminated on November
24, 2004. On the day after he was terminated, Mike Keskey, President of Best
Buys U.S. Retail Stores, wrote Loeb a letter thanking him for his contributions
and complimenting him on a job well done. According to Best Buys answers to
requests for admissions, at the time Loeb was terminated, it was likely that there
were job postings within Best Buy for which he met the minimum requirements.
(Id. Ex. X at 17.) Gilbert testified that even if Loeb had expressed a desire to do
the type of work Barry was now doing, he likely could not have kept working with
the team because the detail-oriented work and launch coordination was actually
now housed outside of the Barry team. (Gilbert Dep. 52-53.)
At one point during Loebs employment on the Barry team, Gilbert asked
Loeb how old he was and registered surprise because he looked and acted
9
younger than his age. (Loeb Dep. 118.) This was the only comment that Gilbert
ever made regarding Loebs age. (Id.) Kimberly never said anything that made
Loeb think he was prejudiced against older people. (Id.)
In approximately October 2004, Gilbert sought to add a position called
Segment Team Member; Ideation/Innovation which would take over some of
the responsibilities that Kimberly was handling in connection with store and field
retail staff such as brainstorming and innovation of new ideas for the Barry
customer. The position was posted both internally and externally in early 2005.
Loeb did not apply for this job. (Kimberly Aff. 16.)
The Segment Team Member was to have the following duties:
1. Assists in the Development and Execution of Segment Strategy
Supports the Segment Leader in the implementation and
on-going refinement of the segment strategy including a
primary focus upon segment value propositions elements
(VPEs)
Highly conceptual, ability to anticipate customer needs
based on data/analysis, predictions etc[.]
Integrating and teaching the Hypothesis, Test, Verify
(HTV) component of the data collection and
interpretation. Data drives decision-making:
understanding, interpreting and assist in making
decision against data inputs
Assists in assessing results against value proposition and
initiating needed course corrections
Ability to think and integrate inputs systemically
(financials, consumer, market and cultural data)
Assists in connecting with key departments as
appropriate to build and refine value propositions.
10
2. Demonstrate Excellent General Management Skills
Supports/Assists/Drives the activities of the IOM teams
to ensure accurate execution of the VPEs and support for
the segment requirements
Facilitates partnerships with platform teams to enable
execution of value propositions
Demonstrates ability to quickly surface learnings, make
adjustments, and teach others the what, why and do
Successfully manages in a matrix organization;
demonstrates effective partnerships with Business
Teams, COEs, Merchants, Hub, Inventory, etc. . . to
validate and iterate value propositions
Assists with building and developing human capital
required to drive results
3. Customer Identification, Satisfaction, and Experience
Supports/Responsible for the identification of the
segment customer as well as improving customer
satisfaction
Assists with the validation of assumptions about
customer experience including integrating HTV for
customer identification, satisfaction and experience and
the ability to iterate processes to enhance results.
4. Integration of Corporate and Field Segment Employees
Teach CC philosophy to all levels of employee including
store to peer.
Systematically learn from stores and evolve customer
strategies.
5. Demonstrate Excellent Financial Acumen
Development, understanding and budgeting of financial
metrics not historically part of BBYs financial portfolio
ROIC, NOPAT
Responsible for segment P&L influence on platform
P&L
Budgeting responsibility for segment specific and platform
specific outcomes
Financial accountability for defined segment across all stores
11
Teaching financial acumen to a wide range of team members
Store to Peer accountability
(Schulman Aff. Ex. E) (ellipses and emphasis in original).
D.M., a seventeen-year Best Buy employee, was promoted to the Segment
Team Member position in March 2005. At the time, D.M. was forty-one years old,
seven years younger than Loeb. The Segment Team Member position required
D.M. to take over Kimberlys duties when Kimberly moved to another position.
D.M. runs the Barry lab stores and her work is strategic . . . with a heavy
operations bent. (Gilbert Dep. 122; Kimberly Dep. 108, 145.) The Barry labs
continued to operate after the launch of Magnolia so that Best Buy could continue
to come up with new ideas for their Barry customers. (Gilbert Dep. 123.)
In July 2005, Best Buy created the position of Director, Innovation Barry
Segment. The position was never posted, either internally or externally, and Best
Buy employee P.M. was assigned to the position. In this position, P.M. was in
charge of launch[ing] new concepts/relevant themes in a lab environment.
(Shulman Aff. Ex. HH.) P.M.s role was potentially long-term, even though his
program would go from launch to scale-up if successful. (Gilbert Dep. 126-27.)
P.M. was forty-one at the time he was hired for this position, and had one
disciplinary item and one poor performance notice in his personnel file at the
time. (Shulman Aff. Ex. LL, MM.) Gilbert testified that even had Loeb still been
12
with Best Buy at this time, he would not have been considered for the position
because Loeb lacked the field level retail experience necessary for the job.
(Gilbert Dep. 127; Gilbert Aff. 18, 19.) The key responsibilities of the position
follow:
1. This role has major responsibility to influence future direction
of the company. I.e, new businesses, formats/concepts
2. CCC management Coordinates and determines
interdependencies of all innovation projects from the IOM and
Field Teams. Work in an ambiguous direction and
demonstrate leadership capabilities. Prioritized tracking and
progress to support innovation Leadership direction on
Portfolio management decisions. Ensure Success metrics are
identified as it relates to game changing ideas for innovation.
Ideas are managed and conclusions are made from the data.
Maintain and share key learnings documentation with ALPS,
vendors, retail, IOM, CC program, and senior leadership.
3. Strong Customer Orientation Leverages customers field
partners, vendors and other strategic partners for customer
knowledge. Concept development focused on strong customer
orientation and how to apply relevant technology offerings to
innovation/solutions.
4. Innovation Development Utilize customer insight to develop
new concepts and solutions to serve our customer base. Lead
field innovation sessions with strategic partners.
5. Demonstrate Excellent General Management Skills
Successfully influence in a matrix environment with clear
communication, follow-up, and focus on the evaluation of
innovation experiments. Maintain communication link
between Segment Leadership and IOM team members.
Demonstrates ability to quickly surface learnings, make
adjustments, and teach others the what, why and do.
13
Facilitates partnerships with platform teams to enable
execution of innovation propositions.
6. Financial Acumen Customer P&L responsibility, Adept in
customer metrics and CC financial metrics including ROIC.
Ability to develop partnership approach and evaluate new
innovation ideas to drive end result.
7. Integration of Corporate and Field Segment Employees Teach
CC philosophy to all levels of employees including store to
peer. Systematically learn from stores and evolve innovation
strategies.
. . .
Interfaces with Company executives SVP and VP levels and their
teams.
. . .
Manages a function without direct supervision of people (may have a
budget responsibility)
(Schulman Aff. Ex. HH at 1-2.) The job requirements included eight to ten years
experience in [r]etail/ecosystems to explore and how to mange this space.
Customer research, Project Management/Program Management/Retail
Operations/Test and Measurement in Innovation space, Process Management.
(Id. at 2.)
The innovation and invention work eventually led to the creation of
another new retail concept: the Magnolia Stand-Alone Home Store. The concept
of this store was sketched out by May 2005 and at that same time the work of
designing, building, staffing, and stocking the new lab store began. The Magnolia
stand-alone lab was completed in January 2006. P.M. has a very retail-focused
14
operations role that requires him to create an incentive plan designed to
forward Barry customers from regular Best Buy stores to the stand-alone home
stores. (Gilbert Dep. 126.)
Loeb filed this lawsuit in April 2005, claiming that his termination was
based on age discrimination and therefore violated the Age Discrimination in
Employment Act (ADEA) and the Minnesota Human Rights Act (MHRA).
Specifically, Loeb alleges that Kimberly and Gilbert used his age as an improper
basis for termination. Loeb feels that he was not only qualified for the positions
eventually filled by P.M. and D.M. and that he was lied to when he was told he
was not qualified for the scale-up positions within Barry, but also that P.M.s and
D.M.s positions are very similar to the position he held on the Barry team.
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate if, viewing all facts in the light most
favorable to the non-moving party, there is no genuine issue as to any material
fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The party
seeking summary judgment bears the burden of showing that there is no disputed
issue of material fact. Id. at 323. Summary judgment must be granted when the
opposing party fails to make a showing that supports the existence of an element
15
essential to the case and on which the opposing party bears the burden of proof at
trial. Id. at 332-33. Summary judgment should seldom be used in employment
discrimination cases. Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994)
(citation omitted).
B. MHRA and ADEA Claims
Under the ADEA, it is unlawful for an employer . . . to discharge any
individual . . . because of such individuals age. 29 U.S.C. 623(a)(1). The
protections of the ADEA apply to individuals age forty and over. Under the
MHRA, it is an unfair employment practice for an employer to discharge an
employee because of the employees age. Minn. Stat. 363A.08 Subd. 2(b). Both
MHRA discrimination claims and ADEA claims are analyzed under the familiar
burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,
141 (2000) (ADEA claims); Keathley v. Ameritech Corp., 187 F.3d 915, 919 (8th
Cir. 1999) (same); Hoover v. Norwest Priv. Mortgage Banking, 632 N.W.2d 534,
542 (Minn. 2001) (MHRA claims).
Under McDonnell Douglas, in the absence of direct evidence of
discrimination, the plaintiff bears the initial burden of proving a prima facie case
of discrimination. 411 U.S. at 802. The defendant then has the burden to
articulate a legitimate, nondiscriminatory reason for the adverse employment
16
action. Id. Finally, to prevail, the plaintiff must show that the defendants
proffered reason was a pretext for discrimination. Id. at 804. Although the
burdens shift between the parties during this analysis, the ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff. Reeves, 530 U.S. at 143
(citation omitted). Federal precedent may be used to construe the MHRA. Reiff
v. Interim Personnel, Inc., 906 F. Supp. 1280, 1292 (D. Minn. 1995) (citations
omitted).
1. Prima Facie Case
To prove a prima facie case of age discrimination, a plaintiff must satisfy
the following four elements: (1) he is a member of the protected class by being
age forty or over; (2) he was meeting his employers job expectations; (3) he was
discharged; and (4) he was replaced by a younger person after the discharge. See
Keathley, 187 F.3d at 920.
a. First Three Elements
Best Buy admits that Loeb satisfies the first three elements of his prima
facie case. The only element at issue is whether Loeb was replaced by a younger
person after discharge.
17
b. Replacement by a Younger Person
An age discrimination action may be maintained based on discrimination
between older and younger members of the protected class. Rinehart v. City of
Independence, 35 F.3d 1263, 1265-66 (8th Cir. 1994). To satisfy the fourth
element of the prima facie test, a plaintiff must create a fact issue as to whether
he was replaced by a person sufficiently younger to permit an inference of
discrimination. Id. at 1269 (citation omitted) (emphasis omitted). At this stage
of the analysis, a plaintiff must demonstrate that a fact issue exists as to whether
age was a factor in the decision to terminate him. Bashara v. Black Hills Corp., 26
F.3d 820, 825 (8th Cir. 1994). The standard is flexible, depending upon the facts
giving rise to a particular dispute. Keathley, 187 F.3d at 920.
The overwhelming body of cases in most circuits has held that age
differences of less than ten years are not significant enough to make out the
fourth part of the age discrimination prima facie case. Grosjean v. First Energy
Corp., 349 F.3d 332, 338 (6th Cir. 2003) (collecting cases). The Eighth Circuit
has not drawn a bright line, but has opined that a nine-year age difference
between a plaintiff and his replacement may not be sufficient to infer age
discrimination. See Girten v. McRentals, Inc., 337 F.3d 979, 982 (8th Cir. 2003)
(reasoning that in the Eighth Circuit, a five-year age difference is insufficient to
18
infer age discrimination, but a fourteen-year age difference is sufficient to infer
age discrimination) (citations omitted).
Loeb argues that the jobs filled by D.M. and P.M. are consistent with the
role [he] was playing at Best Buy and that the positions all appear to be
similar. (Loeb Dep. 145-47.) Loeb argues that both D.M. and P.M., seven and
eight years younger than Loeb respectively, were hired to replace him and that
the age differences between he and D.M. and P.M. are sufficient to permit an
inference of age discrimination. Loeb further argues that D.M. and P.M. took over
his Barry team duties, that funding for D.M.s position was approved while he was
still employed at Best Buy, and that his position on the Barry team was never
limited to the launch of the first four stores.
Loeb takes particular issue with the similarities between his job description
and D.M.s job description, noting that the main focus of both jobs was
developing and implementing the segment strategy through value propositions.
(Pl. Mem. Opp. Mot. Summ. J. at 23.) Loeb argues that since both positions are
strategic in nature, he has established that D.M. took over his job duties.
Loeb also argues the P.M. took over his old job duties since both positions
involve formulating strategy for the Barry segment. According to Loeb, managing
the lab store process and working with other parts of Best Buy make this position
19
significantly similar to his position such that there is an inference of age
discrimination.
Lastly, Loeb argues that his position involved more than just the launch of
the first lab stores since his job description contained no such time limit. Loeb
directs the Courts attention to the clauses in the job description stating that Loeb
would participate in segment strategy development and the ongoing
development of value propositions, and that he had responsibility for developing
and managing a business planning process. In addition, Loeb notes that Gilbert
testified that Loebs job was not considered temporary. Loeb also asserts that the
Barry huddles and other management choices, such as the peer evaluations and
lack of an established hierarchy, created a culture favoring younger employees.
The Court finds that Loeb was not replaced by D.M. and P.M. As the Barry
project moved onto its next phase, new positions were created and D.M. and P.M.
filled those jobs. Loebs job was eliminated. More importantly, there is no
evidence that age was a factor in the decision to terminate Loeb.
Loeb seems to argue that he had the talents to fill D.M.s and/or P.M.s
positions, positions that were not filled until months after Loeb was terminated.
The Court does not find the fact that Gilbert received funding for D.M.s job while
Loeb still worked at Best Buy particularly troubling. It makes sense that new
positions must be sufficiently funded before they can be filled. While it may have
20
been prudent or wise for Best Buy to keep Loeb on the payroll, the Court cannot
sit as a super-personal department, and must not review the wisdom or fairness
of business decisions, except to the extent those decisions are intentionally
discriminatory. See Girten, 337 F.3d at 983 (citation omitted).
In addition, the Court does not agree that Gilbert and Kimberly lied to Loeb
regarding the type of work the Barry project would entail in the future. The
evidence supports the finding that Gilbert and Kimberly did not think Loeb would
be interested in the future work of the Barry team. Even if Loeb would indeed be
satisfied doing this work, that does not support a finding of purposeful age
discrimination. If anything, it is a misunderstanding about Loebs aspirations.
This is especially true regarding D.M.s job since the job was posted externally,
and Loeb did not apply for the position.
The only evidence even remotely indicating age discrimination is Gilberts
comment that Loeb did not look his age. There is no other evidence of any agerelated
comments made by Gilbert or any other member of the Barry team, and
thus this single comment is not strong evidence of discrimination. See Hindman
v. Transkrit Corp., 145 F.3d 986, 993 (8th Cir. 1998) (reversing trial courts grant
of summary judgment to employer because, inter alia, plaintiffs superiors made
derogatory age-related comments to plaintiff over the course of many years).
21
In context, the one comment was nothing more than a stray remark that
has no legal significance because the remark was isolated and not repeated, was
not indicative of any kind of motive to rid the Barry team of people over forty,
and was not made in connection with any decision-making process. See Girten,
337 F.3d at 983. Moreover, it is undisputed that Gilbert made contacts on Loebs
behalf trying to find him other jobs at Best Buy once he was given his termination
notice. (Gilbert Aff. 14; Kimberly Aff. 11.) This type of help does not support
a finding of age bias.1
Thus, without stronger evidence, the seven- and eight-year age differences
between Loeb and P.M. and D.M. are insufficient to establish a prima facie case of
age discrimination. As discussed above, the evidence in this case is not strong
enough to meet this standard.
1 At oral argument, Loebs Counsel proffered the affidavit of Gerald Nanninga in
which Nanninga states that in 2003 a friend of his interviewed with Gilbert for a
job at Best Buy. (Nanninga Aff. 6, 7.) According to Nanninga, Gilbert told
Nanningas friend that she wanted to hire someone young who did not have the
old way of doing things. (Id. 8.) Nanningas friend did not get the job,
although Nanninga considered his friend qualified for the position. (Id. 9, 10.)
This evidence is inadmissible. The statements contained in Nanningas affidavit
are hearsay, and Loeb has not attempted to explain how it is admissible. See
United States v. 3234 Washington Ave. N., No. 03-CV-5765 (JNE/FLN), 2006 WL
487863, at *6 n.3 (D. Minn. Jan. 27, 2006) (unpublished) (citing Erickson v.
Farmland Indus., Inc., 271 F.3d 718, 728 (8th Cir. 2001)). In addition, Nanninga
has no personal knowledge about Gilberts comments and the affidavit is deficient
for that reason also. See Fed. R. Civ. Pro. 56(e).
22
Lastly, the Barry huddles, team-building exercises, partnering work, and
lack of hierarchy within the Barry team are not evidence of a youthful culture or a
culture that is hostile to older workers. Rather, these were merely management
techniques that applied to all Barry team members equally, regardless of age. The
fact that Loeb was embarrassed by this cheerleader attitude does not mean that
the techniques were adopted for the purpose of making older workers
uncomfortable, and Loeb has proffered no evidence to support such a finding.
Therefore, Loeb has not stated a prima facie case because he has not
demonstrated that he was replaced by younger workers and there is no evidence
that the termination decision was based on age. Thus, Best Buys motion will be
granted on this basis. Moreover, even if Loeb had stated a prima facie case, the
motion would still be granted.
2. Legitimate Nondiscriminatory Reason for Termination
Best Buy argues that it terminated Loeb after giving him ninety days to find
a new job within Best Buy because the kind of work the Barry team would do
going forward was not the type of work Loeb did on the Barry team. Gilbert and
Kimberly did not think that Loeb would be interested in doing the new work of
team.
23
This is an appropriate legitimate nondiscriminatory reason for terminating
Loeb. The burden now shifts to Loeb to prove that this reason was actually a
pretext for age discrimination.
3. Pretext
Once an employer states a nondiscriminatory reason for its actions, a
plaintiff can survive summary judgment only if the evidence considered in its
entirety (1) create[s] a fact issue as to whether [the employers] proffered reasons
are pretextual and (2) create[s] a reasonable inference that age was a
determinative factor in the adverse employment decision. Lewis v. St. Cloud
State Univ., 467 F.3d 1133, 1137 (8th Cir. 2006) (emphasis in original). This
requires more than just discrediting the employers stated reason for the
termination. Kohrt v. Midamerican Energy Co., 364 F.3d 894, 898 (8th Cir.
2004). Rather, the plaintiff must also prove that the proffered reason was a
pretext for age discrimination. Id. The real issue is whether the plaintiff was
the victim of intentional discrimination. Reeves, 530 U.S. at 153. [I]f the
proffered reason [for termination] is shown by conflicting evidence to be untrue,
then the nonmoving party is entitled to all favorable inferences that the false
reason given masks the real reason of intentional discrimination. Bassett v. City
of Minneapolis, 211 F.3d 1097, 1107 (8th Cir. 2000) (citation omitted). To that
end, shifting reasons for termination can provide a basis for finding pretext.
24
Galambos v. Fairbanks Scales, 144 F. Supp. 2d 1112, 1122 (E.D. Mo. 2000). See
also Kobrin v. University of Minnesota, 34 F.3d 698, 703 (8th Cir. 1994)
(Substantial changes over time in the employers proffered reason for its
employment decision support a finding of pretext.).
Loeb proffers several reasons why Best Buys stated reasons for terminating
him were actually pretext for age discrimination. First, Loeb asserts that Best Buy
has proffered shifting reasons for terminating him. Second, Loeb argues that he
was replaced by younger workers who are doing the same work he did on the
Barry team. Third, Loeb avers that P.M. was less qualified than he for this job.
a. Shifting Reasons
Loeb argues that Best Buy has proffered shifting reasons for terminating
him. Specifically, Loeb cites the following six statements Best Buy used to explain
his termination, and argues that based on the record, each reason is merely
pretextual.
(1) It terminated Mr. Loebs employment to reduce the labor
costs and to reduce [its] headcount.
(2) It terminated Mr. Loeb as part of a reorganization intended to
streamline processes and eliminate redundant tasks.
(3) It terminated Mr. Loeb as part of a staff reduction.
(4) It terminated Mr. Loeb because his role ended as the result of
the Magnolia stores switching to scale-up mode.
(5) It terminated Mr. Loeb because he agreed to be terminated
based on his lack of interest in scale-up work.
(6) Mr. Loeb was not qualified to perform the strategic work going
forward.
25
(Pl. Mem. Opp. Mot. Summ. J. at 27) (citations to record omitted) (brackets in
original).
i. Reasons 1 through 3
In Loebs termination letter, V.P. of Human Resources Randy R. Ross stated
that Loeb was terminated as a result of Best Buys need to reduce labor costs
and to reduce our headcount. (Shulman Aff. Ex. R.) Loeb refers to this as
shifting reason 1.
An internal memo from Karen Dekker, Director of Human Resources, stated
that Loebs position was eliminated as part of Best Buys reorganization efforts
which included efforts to streamline processes and eliminate redundant tasks.
(Id. Ex. S.) This is reason 2.
On March 8, 2005, in response to an EEOC request for information
regarding Loebs termination, Jane K. Kirshbaum, Best Buys Senior Corporate
Counsel, stated that Loeb was terminated as part of a staff reduction based on
business needs. (Id. Ex. U.) This is reason 3.
Loeb proffers the deposition testimony of Best Buy Human Resources
Generalist Jeffrey Jergerian, who testified that Loebs termination actually had
nothing to do with lowering labor costs; was not intended to reduce headcount,
and indeed did not reduce headcount; and did not eliminate redundancies.
26
(Jergerian Dep. 58-61, 65.) Jergerian testified that Loeb was terminated because
Loebs type of work was ending on the Barry team. (Jergerian Dep. 54.) Loeb
also notes that Kimberly agreed that Loeb was not terminated as part of a
reduction in headcount. (Kimberly Dep. 128-30.) Loeb argues that at the time he
was terminated, Best Buy was actually increasing spending and headcount on the
Barry team. (Shulman Aff. Ex. P, X, QQ, RR, TT.) Thus, according to Loeb,
reasons 1, 2, and 3 for his termination are false and Loeb is entitled to an
inference that Best Buy discriminated against him.
The Court need not consider reasons 1 and 2. The relevant reasons in this
case are the reasons of the decision-makers. See Smith v. Ashland Inc., 179 F.
Supp. 2d 1065, 1070 (D. Minn. 2000), affd 250 F.3d 1167 (8th Cir. 2001). Loeb
admits that the decision to terminate him was made by Gilbert and Kimberly, not
by Ross and Dekker. (Loeb Dep. 112.) The Court must examine Gilbert and
Kimberlys motives, and there has never been any indication that they terminated
Loeb for any reasons other than that the Barry team was moving into the scale-up
mode, the type of work the team was going to do going forward was different
from the type of work Loeb had done for the team, and that the work would be of
a type that would not interest Loeb. This is supported by Jergerians testimony.
(Jergerian Dep. 43.)
27
Best Buy also takes issue with Loebs reason 3 the EEOC letter. While it is
true that the March 8, 2005 correspondence states that Loeb was terminated as a
result of staff reduction, that the decision to eliminate his position was made by
Julie Gilbert and Dean Kimberly, and [h]is employment was terminated due to
the elimination of his position, the letter also states that [r]esponsive
information will follow under separate cover. (Shulman Aff. Ex. U at 1-2.) The
responsive information is included in a separate letter dated the same day and
signed by the same Best Buy corporate counsel. (Id. Ex. V.) That letter makes it
very clear that Loeb was terminated because the type of work he had done on the
Barry team was no longer needed. For example, the letter states that Loeb was
terminated based on the completion of a project and the subsequent elimination
of his position; and that the project Loeb worked on, namely coordinating the
launch of the first four Magnolia Home Theater stores in California . . . . was
completed in September 2004 as the initiative had moved from launch mode to
scale-up mode. (Id. at 1-2.) The letter goes on to state that once the project was
in scale-up mode, the work that had been done by Mr. Loeb was no longer
needed. (Id. at 2.) The letter explains that during the months Loeb worked on
the Barry team, his former IS position was eliminated as the result of Best Buys
transfer of IS jobs to a company called Accenture. (Id.)
28
There is no inconsistency in these two documents. The staff reduction
that Loeb seems to be arguing is purely fictional, was actually the elimination of
his job because that type of work was no longer available on the Barry team.
Loebs selective quoting from the two letters, which were written on the same day
and authored by the same person, is disingenuous. The two letters must be read
together to get the whole picture, especially since one letter specifically refers to
the other one.
The Staffing Analysis Worksheet completed by Gilbert on September 9,
2004 supports Best Buys stated reason for terminating Loeb. The worksheet
states that Loebs current role is no longer needed on the team, since [Magnolia]
is now in scale-up model (as opposed to launch mode). (Shulman Aff. Ex. Q.)
Thus, reasons 1 through 3 are not evidence of pretext.
ii. Reasons 4 and 5
Loeb takes issue with reason 4, that he was terminated as a result of the
switch to the scale-up of the Magnolia stores, and reason 5, that he agreed to be
terminated based on his lack of interest in scale-up work. Loeb seems to be
arguing that taken in context with all the other stated reasons for his termination,
the Court cannot possibly believe that the end of launch work and his apparent
lack of interest in scale-up work were actual reasons for terminating Loeb.
29
Loeb relies heavily on a portion of Gilberts deposition in which she stated
that the overall coordination of the scale-up was done outside the Barry team.
Gilbert made this statement at a point in her deposition where she was being
asked if she could have kept Loeb on the team going forward. (Gilbert Dep. 52-
53.) Gilbert testified that it would have made no sense to keep someone on the
team who would have been pursuing [the] kind of detailed work Loeb had done
when there was another team in the company doing that work. (Id. at 53.)
Loeb also argues that since his job description was not limited to the startup
stores, Best Buys stated reason for terminating him, that the Magnolia work
had shifted into scale-up mode, was merely pretextual. In addition, Loeb avers
that since Gilbert testified that she would have terminated Loeb even if he had
expressed an interest in staying on the team and that the Barry team was not
handling a lot of the scale-up, her statement that Loeb was not interested in scaleup
work was pretextual.
Best Buy responds that there was no reason to keep Loeb on the team
because once the Magnolia stores went into to scale-up mode, several Best Buy
groups were involved, and that the majority of the actual work of replicating the
stores was done outside the Barry team in spite of the fact that the Barry team
leaders still had substantial responsibility for guiding the scale-up work. (Second
Gilbert Aff. 2-4.)
30
In addition, Best Buy argues that reason 5, that Loeb agreed to be
terminated is simply not true since Gilbert testified only that Loeb understood
there was no position for him on the Barry team. Furthermore, Gilbert testified
that Loeb was terminated because he was not interested in scale-up work. Gilbert
and Kimberly both testified that Loeb was terminated because the work of the
Barry team was changing. Thus, according to Best Buy, the reasons were merely
elaborations of Best Buys stated reasons for terminating Loeb, not different
reasons.
Although Loeb argues that one of the reasons given for his termination was
lack of work (Pl. Mem. Opp. Mot. Summ. J. at 2), Loeb admitted in his
deposition that he was informed that rather than there being a lack of work, there
was actually going to be a shift in the type of work on the Barry team, and that
team leaders did not see a place for him on the team where he would be happy
going forward. (Loeb Dep. 109.)
Best Buy has been consistent in its stated reason for terminating Loeb.
First, reason 4 is consistent with Best Buys arguments, and therefore, is not
shifting. Second, reason 5 is unsupported. No one ever stated that Loeb agreed
to be terminated, only that he understood the nature of the work was changing
and that he understood there would no longer be a place for him on the team
because the new work would not be of interest to him.
31
iii. Reason 6
Loeb argues that reason 6, that Loeb was not qualified for the strategic
work of the Barry team going forward, is only an after-the-fact attempt to justify
the termination because there are no contemporaneous records to support this
claim. Specifically Loeb argues that the strategic work of the Barry team after the
launch of the original four stores included lab store tests, analyses and value
proposition development. Loeb points to Best Buys desire to design private
experience areas, to create dedicated check outs, and to bundle high-end
products. According to Loeb, these strategies contradict Gilberts testimony that
once the four stores were launched, the Barry team was not changing the stores
anymore because it had the recipe already nailed down. Loeb argues that his
success with the launch of the Barry stores is evidence that he was qualified to do
the type of work the team was doing after his termination.
Reason 6 is consistent with the reasons Best Buy gave for the termination,
and thus does not represent any sort of suspicious shift. Gilbert testified that the
high-level strategic coordination work that [Loeb] enjoyed was no longer
available. (Gilbert Dep. 48.) See Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 855
(8th Cir. 2005) (finding that while substantial changes over time in proffered
reasons for termination can support a finding of pretext, this does not mean that
32
the employer cannot elaborate on its proffered reason). There are no
inconsistencies in the reasons given by the decision-makers in this case.
iv. Conclusion
Loebs six shifting reasons do not establish pretext. Reasons 1 and 2 are
irrelevant to this discussion. Reason 3 is taken out of context, and is not suspect
when evaluated in its entirety. Reason 5 is a misstatement of the facts. Reasons 4
and 6 are consistent with Best Buys arguments and do not represent any kind of
shifting. Therefore, these arguments do not create a fact issue about pretext.
b. Replacement by Younger Employees Doing the Same
Work
Loeb avers that Gilberts assertion that Loebs lack of retail experience was
an impediment to his working on the Barry team going forward is not credible
because Gilbert concealed the position eventually filled by D.M. from Loeb,
having obtained authorization for the position in October 2004 and never offering
Loeb the opportunity to apply for the job. Moreover, Loeb argues that nothing in
any job description states that retail experience was necessary for the job.
Likewise, Loeb argues that the Director, Innovation Barry Segment job did not
have retail experience as a requirement, and thus, the requirement of retail
experience masks the real reason of intentional discrimination. (Pl. Mem. Opp.
Mot. Summ. J. at 34.) Loeb also argues that P.M., the person who eventually got
33
this job, did not have retail experience. Furthermore, Loeb argues that he did
have retail experience and that Best Buy recognized that when it said that Loeb
leveraged his prior retail experience out of the gate. (Id. (quoting Shulman Aff.
Ex. A).)
Loeb further avers that from the beginning of his employment on the Barry
team, Gilbert and Kimberly intended to replace him with a younger person
because just one month after he joined the team, his work was cut off even
thought the rest of the team was busy. This, coupled with the youth-based
culture of the Barry team as evidenced by the Barry huddles, insistence on
relationship-based work, and having team members grade each other on such
criteria as being a team player, along with the fact that Gilbert asked Loeb his
age, indicates that it was the plan all along to terminate Loeb and replace him
with younger people. Loeb avers that his short-term employment on the Barry
team was merely a ploy so that the headcount budget allocated to him could be
transferred to the Barry team, and that a younger person could be hired to fill that
headcount. To further bolster his argument, Loeb notes that at the time of his
termination, Best Buy recommended that the Barry team actually add a program
manager position. Loeb also avers that Kimberly refused to transfer Loebs
headcount to another department after he terminated Loeb, and therefore
impeded Loebs search for other work within Best Buy.
34
Best Buy responds that Loeb has provided no evidence that he had any job
duties not related to the Magnolia project. In addition, Best Buy notes that Loeb
has provided no evidence that the added program manager position was
somehow a replacement for Loebs job. Moreover, that position was just part of a
wish list and was actually never created. (Second Gilbert Aff. 5.)
The Court finds that the Loeb, P.M., and D.M. job descriptions are so broad
that they could apply to almost any high level employee on the Barry team, and
that during Loebs employment on the Barry team, the entire teams focus was
getting the Magnolia stores up and running. Thus, it is disingenuous for Loeb to
assert that he was the only person with those responsibilities and that when P.M.
and D.M. were hired they thus took over his duties. Moreover, D.M.s and P.M.s
duties are different from Loebs former duties. (Gilbert Aff. 6, 7, 11, 17-19;
Kimberly Aff. 4-7, 13-19.) D.M. actually took over some of the responsibilities
that Kimberly was previously handling. (Gilbert Aff. 17.)
D.M.s job involves working closely with . . . store and field retail people in
the brainstorming and innovation of new ideas for . . . . products, services and
packages for [the] Barry customer. . . . [T]his is the type of work that [Best Buy]
had put into the MHT concept in the months leading up to January, 2004, when
[Loeb] joined the team to begin to build the prototype stores. (Id.) D.M. worked
with field retail employees on brainstorming, innovation process by which our
35
new concepts, value propositions, were developed. (Kimberly Aff. 17.) Once
the planning was complete, D.M. took over the task of coordinating the designing,
building, staffing, and stocking of the new stores. (Id.)
P.M.s job entails working on innovations in the sales and sales
development aspects of the stand-alone Magnolia project. (Gilbert Aff. 19.)
P.M.s job was created to work on certain sales strategies and operational issues.
(Kimberly Aff. 18.)
Loeb makes much of his retail experience, and argues that since he had
retail experience, he should have been offered D.M.s job. D.M. had experience
working in Best Buy stores, as well as at the corporate level. (Kimberly Aff. 16.)
Loebs retail experience consisted of designing Barry stores; working in Digital
Life, a program designed to change the way Best Buy sold home theater
equipment; and working in Customer Centricity. However, D.M.s and P.M.s jobs
benefited from field retail experience, something that Gilbert did not feel Loeb
possessed. (Gilbert Aff. 17, 19.) Both D.M. and P.M. had field retail
experience. (Id.; Kimberly Aff. 16-18.)
There is no evidence that Loeb was replaced with younger workers. Loeb
has provided no evidence to contradict Best Buys argument that P.M.s and D.M.s
work is different work from the work Loeb did on the team. In fact, Loeb does
not argue that P.M.s and D.M.s duties are the same as his, only that the positions
36
seem similar. (Loeb Dep. 146.) However, to the extent the job descriptions
overlap, they are fairly generic and broad job descriptions, and Loeb has not
specified any particular job duties that D.M. and P.M. actually perform that are
the same duties he performed. This fact distinguishes this case from the cases
cited by Loeb. See Keathey, 187 F.3d at 921 (plaintiffs best accounts given to
younger employees); Hindman, 145 F.3d at 991-92 (younger individuals
performing same work on same machinery upon which plaintiff worked); Hase v.
Missouri Div. Employ. Sec., 972 F.2d 893, 894-95, 897(8th Cir. 1992) (younger
individual who was promoted over plaintiff had lower performance ratings, lower
rank on candidate list, and sixteen years less experience).
Even if it is true that retail experience was not required for the positions or
that Loeb actually had the right kind of retail experience, this fact is not material
because it does not support a finding that Loebs termination was based on age
discrimination. There is simply a dearth of evidence to support this contention.
In addition, the Court cannot ignore the fact that although D.M.s position was
posted both internally and externally, Loeb did not apply for the job. Employers
are not required to invite former employees to apply when jobs become available
that might be good fits for the former employees.
Lastly, there is no evidence that Kimberly and Gilbert were required to give
up headcount when they terminated Loeb. Loebs duties were complete and the
37
MHT project was in scale-up mode, but that does not mean that headcount was
not required for the team to perform its other duties. There is no evidence to
support the conclusion that Loeb was brought in merely to shore-up the Barry
teams headcount, especially since Loeb was the one who initially approached the
team. Thus, refusing to transfer headcount is not evidence of discrimination.
c. Replacement by Less Qualified Employees
A finding of pretext may be appropriate when an older employee is
replaced by a younger employee with weaker performance and qualifications. Id.
at 897. Loeb argues that P.M. had engaged in inappropriate behavior at a
corporate outing, had a poor performance notice in his file, and therefore was less
qualified for his job than Loeb would have been. Thus, according to Loeb, Best
Buys termination of him was just pretext to replace him with the younger P.M.
The Court finds Loebs argument unavailing. First, a comparison between
P.M. and Loeb would only be relevant had the Court determined that P.M.
actually replaced Loeb, something the Court found did not occur. Second, Loeb
has provided so little evidence regarding P.M.s work record that the Court cannot
reasonably conclude that P.M. was less qualified. The Court has reviewed
Plaintiffs arguments and exhibits, all filed under seal, and concludes that the
documents are not relevant regarding whether P.M. was qualified for his current
job duties. The exhibits do not document any on-going issues. There is no
38
evidence that the issues addressed in the documents were not resolved to Best
Buys satisfaction.
Best Buys stated reasons for terminating Loeb were not pretext for age
discrimination. Loebs position came to an end. Months later, other people were
hired to perform different tasks. This is not age discrimination. Whether Loeb
should have been considered for these positions because of his prior experience is
not a proper question for the Court. Lewis, 467 F.3d at 1137 (holding that courts
should not consider whether employers decisions are wise).
4. Conclusion
[N]ot every plaintiff who sufficiently calls into question the truthfulness of
the defendants proffered explanation survives summary judgment. Keathly, 187
F.3d at 922 (quotation omitted). In this case, Loeb has not raised any question of
material fact that allows him to survive summary judgment. Loeb has not
proffered any colorable age-based reason for his termination. Moreover, as
discussed above, Loeb failed to even state a prima facie case since he has not
provided compelling evidence that he was replaced by younger workers, and the
Eighth Circuit has expressed skepticism that even a nine-year age difference
39
between an employee and his replacement can support a finding of pretext. See
Girten, 337 F.3d at 982.
Accordingly, based upon the files, records, and proceedings herein, IT IS
HEREBY ORDERED Defendants Motion for Summary Judgment [Doc.
No. 29] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: August 6, 2007
s / Michael J. Davis
Michael J. Davis
United States District Court
 

 
 
 

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