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

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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.

Prepare your memo (400-500 words in length), addressing the following:

1. Review the facts of the case and discuss the legal strengths and weaknesses.

2. Determine what facts are missing which might bear upon the legal strengths or
weaknesses, or your negotiation/mediation strategy. (If there are questions you have relating
to the facts of the case, you are not to “make them up”).

3. Calculate the best and worst-case scenarios under the ADEA, and provide justification.
Formulate a realistic bargaining range with target and resistance points.