Case 3:22-cv-02557-L Document 136 Filed 04/21/25 Page 1 of 32 PageID 6369
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
`
`PAUL HERMANN,
`
`Plaintiff,
`
`v.
`
`HEWLETT PACKARD ENTERPRISE
`COMPANY d/b/a HEWLETT-PACKARD
`FINANCIAL SERVICES COMPANY
`
`Defendant.
`
`§
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`§
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`CIVIL ACTION NO. 3:22-cv-02557-L
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`DEFENDANT HEWLETT PACKARD ENTERPRISE COMPANY’S REPLY IN
`SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
`
`
`
`
`Bradley E. Schwan
`Texas Bar No. 24126681
`bschwan@littler.com
`Michaela D. Noble
`Texas Bar No. 24104613
`mnoble@littler.com
`
`LITTLER MENDELSON, P.C.
`2001 Ross Avenue, Suite 1500
`Dallas, Texas 75201-2931
`Telephone: 214.880.8100
`Facsimile: 214.880.0181
`
`ATTORNEYS FOR DEFENDANT
`HEWLETT PACKARD ENTERPRISE
`COMPANY D/B/A HEWLETT-PACKARD
`FINANCIAL SERVICES COMPANY
`
`

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`Case 3:22-cv-02557-L Document 136 Filed 04/21/25 Page 2 of 32 PageID 6370
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`TABLE OF CONTENTS
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`Page(s)
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`TABLE OF CONTENTS ............................................................................................................. i
`
`TABLE OF AUTHORITIES ..................................................................................................... iii
`
`I. 
`
`II. 
`
`III. 
`
`1. 
`
`2. 
`
`SUMMARY ................................................................................................................. 1 
`
`PLAINTIFF CANNOT SHOW DISPARATE TREATMENT BECAUSE
`RYAN MAGERS INDISPUTABLY WAS A BETTER PERFORMER
`THAN PLAINTIFF ..................................................................................................... 3 
`
`PLAINTIFF CANNOT SHOW THAT HPE’S LEGITIMATE
`REASONS FOR HIS TERMINATION ARE FALSE OR UNWORTHY
`OF CREDENCE .......................................................................................................... 8 
`
`A. 
`
`Plaintiff’s Termination Was Based on Walker’s Objective and
`Subjective Assessment of Plaintiff’s Performance. ......................................... 8 
`
`B.  Walker Did Not Make False Statements to HR When Preparing
`Plaintiff’s PIP and Performance Warning. ...................................................... 9 
`
`IT IS UNDISPUTED THAT HANDY TOLD WALKER THAT
`PLAINTIFF HAD PERFORMANCE PROBLEMS ................................................... 9 
`
`HR REPRESENTATIVE PAULINA GOMEZ ASSISTED WALKER IN
`PROCESSING PLAINTIFF’S PIP, PERFORMANCE WARNING,
`AND TERMINATION, BUT HAD NO SALES EXPERIENCE AND
`WAS NOT QUALIFIED TO ASSESS PLAINTIFF’S
`PERFORMANCE, NOR WAS THAT HER JOB ..................................................... 10 
`
`C. 
`
`The Goals Walker Set for Plaintiff were Achievable. ................................... 13 
`
`D.  Walker’s Performance Assessments Were Objective .................................... 15 
`
`E. 
`
`F. 
`
`G. 
`
`H. 
`
`Walker’s Remarks About Plaintiff, Kristi Cooper, and Ryan
`Magers Were Not Circumstantial Evidence of Ageism, As
`Plaintiff Now Argues. .................................................................................... 17 
`
`Plaintiff’s Claims That HPE Has a “History of Discriminating
`Against Older Employees” is False, Hearsay, and Irrelevant to
`Plaintiff’s Claims ........................................................................................... 18 
`
`Plaintiff Has Failed to Establish a Genuine Issue Of Material Fact
`Regarding His Mitigation Efforts .................................................................. 21 
`
`Plaintiff Has Not Created a Triable Issue Regarding
`
`i
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`

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`Case 3:22-cv-02557-L Document 136 Filed 04/21/25 Page 3 of 32 PageID 6371
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`Compensatory Damages ................................................................................ 25
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`CERTIFICATE OF SERVICE ................................................................................................. 26
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`
`ii
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`

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`Case 3:22-cv-02557-L Document 136 Filed 04/21/25 Page 4 of 32 PageID 6372
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Almond v. ABB Indus. Sys., Inc.,
`No. C2-95-707, 2001 WL 242548 (S.D. Ohio Mar. 6, 2001) ..................................................19
`
`Am. Civil Liberties Union of Nev. v. City of Las Vegas,
`13 F. Supp. 2d 1064 (D. Nev. 1998) ........................................................................................19
`
`Bryant v. Compass Group USA Inc.,
`413 F.3d 471 (5th Cir. 2005) .....................................................................................................3
`
`Cary v. Cordish Co.,
`No. 3:14-CV-458-DJH-CHL, 2016 WL 1178799 (W.D.Ky. Mar. 23, 2016),
`aff’d, 731 F. App’x 401 (6th Cir. 2018) ...................................................................................19
`
`In re Columbia Sec. Litig.,
`155 F.R.D. 466 (S.D.N.Y. 1994) .............................................................................................19
`
`Crawford v. Western Elec. Co.,
`614 F.2d 1300 (5th Cir.1980) ..................................................................................................15
`
`Fulbright v. Union Pacific Railroad Co.,
`No. 3:20-CV-2392-BK, 2022 WL 975603 (N.D. Tex. March 31, 2022) ................................22
`
`Gary v. Combined Group Ins. Services, Inc.,
`2009 WL 2868485, No. 3:08-CV-228-L (N.D. Tex., Sept. 4, 2009) .........................................7
`
`Gonzalez v. Hewlett Packard Enter. Co.,
`No. CV 4:18-2527, 2020 WL 7482017 (S.D. Tex. Dec. 18, 2020) .........................................20
`
`Hansard v. Pepsi-Cola Metro. Bottling Co.,
`865 F.2d 1461 (5th Cir. 1989) .................................................................................................21
`
`U.S. v. Hatchett,
`918 F.2d 631 (6th Cir. 1990) ...................................................................................................19
`
`Heggemeier v. Caldwell County Com’rs Court,
`2015 WL 1737861, No. 1:13-CV-746-LY (W.D. Tex., Apr. 15, 2015)
`subsequently aff’d sub nom. Heggemeier v. Caldwell County, Texas, 826 F.3d
`861(5th Cir. 2016) .....................................................................................................................16
`
`Hervey v. Miss. Dep’t of Edu.,
`404 F. App’x 865 (5th Cir.2010) ...............................................................................................16
`
`iii
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`

`

`Case 3:22-cv-02557-L Document 136 Filed 04/21/25 Page 5 of 32 PageID 6373
`
`Jackson v. Host Intern., Inc.,
`426 Fed.Appx. 215 (5th Cir. 2011) ..........................................................................................22
`
`Kepple v. GPU Inc.
`2 F.Supp.2d 730 (W.D. Pa. 1998) ......................................................................................17, 18
`
`Kirby v. SBC Services, Inc.,
`391 F. Supp. 2d 445 (N.D. Tex. 2005) ......................................................................................3
`
`Kirkwood v. Inca Metal Products Corp.,
`No. 3:04-CV-0226-D, 2008 WL 245941 (N.D. Tex. Jan. 30, 2008) .......................................22
`
`Mackey v. Children's Med. Ctr. of Dallas,
`No. CIV.A. 3:05-CV-043-L, 2006 WL 2713788 (N.D. Tex. Sept. 22, 2006) .........................22
`
`Medina v. Ramsey Steel Co., Inc.,
`238 F.3d 674 (5th Cir. 2001) .............................................................................................15, 16
`
`Mejia v. Ayala,
`2022 WL 3702027, No. 3:21-CV-0587-D (N.D. Tex., Aug. 26, 2022) ............................21, 22
`
`Migis v. Pearle Vision, Inc.,
`135 F.3d 1041 (5th Cir.1998) ..................................................................................................21
`
`Morgan v. Neiman-Marcus Group, Inc./Neiman-Marcus Direct,
`No. CIV.A. 305CV0079G, 2005 WL 3500314 (N.D. Tex. Dec. 20, 2005) ............................22
`
`Nicholson v. Securitas Security Services, US, Inc.,
`No. 4:14-CV-172-O,2016 WL 7669518 (N.D. Tex. Dec. 29, 2016) .......................................22
`
`Nooner v. Norris,
`594 F.3d 592 (8th Cir. 2010) ...................................................................................................19
`
`Powers v. Northside Indep. Sch. Dist.,
`951 F.3d 298 (5th Cir. 2020) ...................................................................................................22
`
`Roberts v. City of Shreveport,
`397 F.3d 287 ............................................................................................................................19
`
`Sellers v. Delgado Coll.,
`902 F.2d 1189 (5th Cir.1990) ..................................................................................................22
`
`Sparks v. Griffin
`460 F.2d 433 (5th Cir. 1972) ...................................................................................................22
`
`Stephenson v. Nokia Inc.,
`No. CIV A 3:06-CV-2204-B2008............................................................................................22
`
`iv
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`

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`Case 3:22-cv-02557-L Document 136 Filed 04/21/25 Page 6 of 32 PageID 6374
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`Voskuil v. Env’t Health Ctr.-Dall,
`1997 WL 527309 (N.D. Tex. Aug. 18, 1997) (Fitzwater, J.) ............................................21, 22
`
`West v. Nabors Drilling USA, Inc.,
`330 F.3d 379 (5th Cir. 2003) (Fitzwater, J., sitting by designation) ..................................21, 22
`
`Yoda v. State,
`630 S.W.3d 470 (Tex. App.—Eastland 2021, pet. ref'd) ...........................................................9
`
`Zimmerman v. Gruma Corp.,
`No. 3:11-cv-01990-L, 2013 WL 3154118 (N.D. Tex. Jun. 21, 2013) .......................................2
`
`Statutes
`
`ADEA ............................................................................................................................................21
`
`Age Discrimination in Employment Act (ADEA).........................................................................21
`
`Title VII .........................................................................................................................................21
`
`Other Authorities
`
`FRCP 30(b)(6) ...............................................................................................................................20
`
`FRE 801(c) .....................................................................................................................................19
`
`https://www.cnbc.com/2017/11/21/meg-whitman-to-leave-role-as-ceo-of-hewlett-
`packard-enterprise-hpe.html ....................................................................................................18
`
`
`
`v
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`

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`Case 3:22-cv-02557-L Document 136 Filed 04/21/25 Page 7 of 32 PageID 6375
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`
`I.
`
`SUMMARY
`
`Plaintiff’s Opposition does nothing to contradict the undisputed record evidence
`
`confirming that HPE is entitled to summary judgment in this case, including that:
`
` HPEFS deliberately shifted focus in its sales plans from volume to margin in FY21;
` Plaintiff’s new manager, Shannon Walker, was selected for his position because he was a
`highly successful sales representative and manager who had a reputation for developing
`more profitable Asset Management Lifecycle Solution (“ALCS”) sales;
` Walker made it known to Plaintiff and his team that ALCS sales were a focus for him;
` Plaintiff’s ALCS sales were virtually non-existent when Walker started managing him in
`November 2020, when he implemented Plaintiff’s PIP in January 2021, when he provided
`Plaintiff with the Performance Warning in April 2021, and when he made the decision to
`terminate Plaintiff’s employment in May 2021;
` Plaintiff presented a subpar Territory Plan to Walker’s boss and that Plaintiff refused to fix
`it, despite multiple requests from Walker (including in the Performance Warning) that he
`do so; and
` At the time of his termination, Plaintiff was woefully short of the Volume Margin goal
`HPEFS set for him because he failed to sufficiently broaden his client base to try to develop
`business throughout the fiscal year, and instead waited on one big deal from Houston ISD
`to close toward the end, so he could make his numbers, and his overall numbers were
`objectively the worst amongst all SLED FAMs.
`What Plaintiff failed to understand, or refused to accept, was that Walker wanted Hermann to
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`improve his profitability and performance and not just “meet his quotas.” It is undisputed that
`
`Plaintiff’s quotas in almost every category were not just lower, but significantly lower, than his
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`peers’ quotas. Thus, while Plaintiff argues, speculatively, that had he remained employed, he
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`would have met his Volume Margin target and should not have been terminated, doing so still
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`would have placed him at the bottom of the pack amongst his peers in Volume Margin. And he
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`ignores or tries to minimize that he still would not have met his ALCS target (or even come close),
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`and that he refused to update his Territory Plan—a performance expectation geared toward
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`assisting him in increasing his client base, and therefore, his profitability and performance.
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`Ultimately, HPE implemented a Performance Improvement Plan and a Performance
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`Warning directing Plaintiff to take specific actions to improve his performance. Plaintiff improved
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`1
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`

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`Case 3:22-cv-02557-L Document 136 Filed 04/21/25 Page 8 of 32 PageID 6376
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`in some areas, fell short in others, and completely failed to attend to others (i.e., updating the
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`Territory Plan), leading Walker and HPE to terminate his employment. Plaintiff’s Opposition falls
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`well short of identifying any material issue of fact capable of establishing that HPE’s reasons for
`
`his termination are pretextual, either “through evidence of disparate treatment or by showing that
`
`the employer's proffered explanation is false or unworthy of credence.” Zimmerman v. Gruma
`
`Corp., No. 3:11-cv-01990-L, 2013 WL 3154118, at *6 (N.D. Tex. Jun. 21, 2013) (internal citations
`
`omitted). Plaintiff attempts to do so, through smears and misrepresentations in his Opposition, but
`
`his efforts fail for the reasons described herein. It cannot be disputed that Plaintiff was a
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`demonstrably worse performer than Ryan Magers, when assessing the actual numbers, and thus,
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`Plaintiff cannot show disparate treatment when it came to those two employees. Plaintiff’s
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`attempts to categorize HPE’s conduct such that its reason for terminating Plaintiff was “false or
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`unworthy of credence” are also unsupported by the evidence and smack of desperation. This is
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`especially true when the undisputed evidence shows that Walker retained Plaintiff’s federal
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`counterpart, Douglas Trump, who was 65 when Plaintiff was terminated (App. 090)1—a fact
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`Plaintiff completely ignores in his Opposition and which, frankly, calls into question Plaintiff’s
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`entire case. If Walker intentionally discriminated against Plaintiff because of his age, why did he
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`not terminate Trump as well? The answer is simple (and again, undisputed)—because Walker
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`considered Trump, unlike Plaintiff, to be a strong performer.
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`Finally, Plaintiff has failed to present any genuine issue of material fact to overcome the
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`fact that HPE has established that Plaintiff is not entitled to compensatory damages as a matter of
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`law, and has established its affirmative defense of failure to mitigate.
`
`
`1 HPE primarily refers to its original Appendix (Dkt. 122, 122-1 through 122-5) throughout this Motion as “App.” For limited
`references to new material, HPE will refer to its Appendix filed in support of this Reply as “Reply App.”
`
`
`
`2
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`

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`Case 3:22-cv-02557-L Document 136 Filed 04/21/25 Page 9 of 32 PageID 6377
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`II.
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`PLAINTIFF CANNOT SHOW DISPARATE TREATMENT BECAUSE RYAN
`MAGERS INDISPUTABLY WAS A BETTER PERFORMER THAN PLAINTIFF
`
`Plaintiff cannot demonstrate disparate treatment because there is no genuine dispute of fact
`
`that Ryan Magers was objectively a better performer than Plaintiff. Plaintiff does not even attempt
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`to dispute the numbers HPE laid out in its Motion which show that, through the time of Plaintiff’s
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`termination, Plaintiff was the worst performer among the SLED FAMs. [Dkt. 120 at 25-29] While
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`Walker has acknowledged Magers also struggled with ALCS sales like Plaintiff, the law does not
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`require Walker to have performance managed Magers the exact same way he did Plaintiff,
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`especially where Magers outperformed Plaintiff in every single applicable metric, including ALCS
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`(albeit by a smaller margin than most of the other metrics). Employment discrimination laws are
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`“not intended to be a vehicle for judicial secondguessing of business decisions, nor to transform
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`the courts into personnel managers.” Kirby v. SBC Services, Inc., 391 F. Supp. 2d 445, 454 (N.D.
`
`Tex. 2005) (citing Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir. 1988));
`
`Bryant v. Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir. 2005). This is especially true
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`where Walker only had five SLED FAMs. As Walker testified, it would not be wise for him to
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`work on a performance improvement plan for two individuals simultaneously given the strain it
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`would put on the business and SLED group overall. (Reply App. 008:10-24) Concluding after the
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`fact that Walker instead should have simultaneously issued PIPs and Performance Warnings to,
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`and then terminated, 40% of his SLED FAMs is precisely the type of judicial second-guessing the
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`law prohibits, especially where the comparator employee, like Magers here, was demonstrably a
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`stronger performer by the undisputed numbers.
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`Because Plaintiff cannot dispute the numbers as they existed on the date of his termination,
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`Plaintiff instead engages in speculation, arguing that, had he only been retained, he would have
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`met his Volume Margin and Total Margin quotas, so his termination was unlawful. This ignores
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`
`
`3
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`

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`Case 3:22-cv-02557-L Document 136 Filed 04/21/25 Page 10 of 32 PageID 6378
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`the other reasons for Plaintiff’s termination, importantly including (1) his failure to meet his ALCS
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`Margin Quota (which Plaintiff concedes was of the utmost importance to Walker), and Plaintiff
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`further concedes that he would not have met the quota even if his speculation regarding his
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`performance for the remainder of FY21, if had he remained employed, turned out to be true, [see
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`Dkt. 125 at 26-27; 47 n.10], and (2) his failure to revise his Territory Plan as directed by
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`management and in his April Performance Warning. Because it is undisputed that Plaintiff did not
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`satisfy either of those performance expectations, the Opposition tries to argue that Plaintiff did not
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`understand their importance [Dkt. 125 at 27, 31]. Those arguments are belied by Plaintiff’s own
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`deposition testimony, (App. 826-827; 827:20-23; 907:22-25; 853:21-854 (testifying that, when
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`receiving the PIP, Walker heavily covered the ALCS piece and that he understood ALCS would
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`be Walker’s focus)), and the Performance Warning itself.2
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`Moreover, even assuming Plaintiff’s speculation regarding his performance, had he
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`remained employed through the entirety of FY21, turned out to be true, he still would have been
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`the worst performing FAM on the team. Plaintiff argues that, had he remained employed through
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`the end of FY21, and if all the sales in the Southwest territory that were closed by other FAMs
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`instead were closed by him, he would have attained $811,446.40 in Volume Margin and
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`$1,392,097.80 in Total Margin, and that each of those numbers exceeded his quotas for FY21.
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`[Dkt. 125 at 19 n. 2] But that performance still would have been underwhelming compared to that
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`of his peers, including Magers, because Plaintiff’s quotas were unambiguously lower than his
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`peers. The following charts compare Plaintiff’s speculative best-case performance scenario for
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`
`2 Plaintiff submits a self-serving declaration stating that he “did not rebuff Mr. Walker’s request for an updated Territory Plan,”
`because he was “focusing on trying to meet the financial goals in the Performance Warning.” (Dkt. 126 - Pltf. App. 866). He goes
`on to say that, “[h]ad Mr. Walker reminded me at any time he was waiting for it, I would have happily prepared [it.]” (Pltf. App.
`867) This utterly ignores the April 1 Performance Warning (the same one that warns Plaintiff he could be terminated if he fails to
`meet its requirements) where Walker in fact requests an updated Territory Plan by April 9. (App. 616).
`
`
`
`4
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`

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`Case 3:22-cv-02557-L Document 136 Filed 04/21/25 Page 11 of 32 PageID 6379
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`FY21 to the actual performance of the other SLED FAMs through the end of FY21:3
`
`FY21 Volume Margin Attainment
`FY21 Volume
`FY21 Volume Margin
`
`FY21 Volume
`Margin Attainment
`Attainment %
`Margin Quota
`
`$747,000
`Hermann
`$811,446.40 4
`$2,045,005.50
`169.71%
`$1,205,000.00
`Magers
`$1,851,986.40
`155.76%
`$1,189,000.00
`Cavanaugh
`$4,971,824.00
`110.24
`$4,510,000.00
`Capria
`$4,109,236.26
`87.03%
`$4,721,631.92
`Ackerman
`In actual dollars, Plaintiff’s FY21 Volume Margin attainment (even under his best-case scenario)
`
`is less than half of that of the next lowest performer, Thomas Cavanaugh—notably, not Magers.
`
`Plaintiff’s estimated Volume Margin attainment was less than 40% of Magers’s attainment (and
`
`barely 16% of the highest performing SLED FAM by this metric, Sean Capria). Walker and HPE
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`have explained, and Plaintiff has not disputed, that Volume Margin was correlative of a territory’s
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`profitability. (Dkt. 120 at 11) Regardless of whether Plaintiff could have hypothetically met his
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`FY21 Volume Margin Quota, he cannot dispute that, objectively, his performance on that metric
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`still would have been the worst among the SLED FAMs.
`
`FY21 Total Margin Attainment
`
`FY21 Total Margin
`Quota
`$1,162,824.00
`$2,065,831.00
`$2,046,095.00
`$5,890,616.00
`$6,203,431.52
`
`Hermann
`Magers
`Cavanaugh
`Capria
`Ackerman
`
`FY21 Total Margin
`Attainment %
`
`153.84%
`191.27%
`119.18%
`96.47%
`
`FY21 Total Margin
`Attainment
`$1,392,097.805
`$3,178,074.41
`$3,913,565.91
`$7,020,436.15
`$5,984,450.39
`
`
`3 Data reflected in these charts is taken from the FAMs’ FY21 incentive data: Plaintiff (App. 323), Magers (App 351), Cavanaugh
`(App. 389), Capria (App. 354), and Ackerman (App. 357). FY21 Volume Margin Attainment is calculated by multiplying the
`percentage attainment through the end of FY21 (October 2021) by the Volume Margin Quota for each FAM (with the exception
`of Plaintiff, whose FY21 Volume Margin Attainment reflects his speculative assertion of the number he would have achieved had
`he not been terminated, see [Dkt. 125 at 26 n. 2]. The same method is used to calculate FY21 Total Margin Attainment in the
`second chart, below.
`4 Plaintiff’s estimate, see Dkt. 125 at 26 n.2.
`5 Id.
`
`
`
`5
`
`

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`Case 3:22-cv-02557-L Document 136 Filed 04/21/25 Page 12 of 32 PageID 6380
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`Likewise, even if Plaintiff had achieved the Total Margin attainment he speculates he would have
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`if he had remained employed through FY21, he still would have been, objectively, the worst
`
`performer by that metric, and by a long shot—notably, he would have achieved only 43.8% of
`
`Magers’ Total Margin attainment.6
`
`In every category of quota, even those for which Plaintiff speculatively asserts he would
`
`have met his quota, Plaintiff was the worst performer among all SLED FAMs. Plaintiff wants to
`
`focus on percentages rather than actual dollars because he had the lowest quotas, and thus focusing
`
`on attainment percentage may partially obscure his low overall performance. But as Walker
`
`explained at his deposition when asked why he put Plaintiff on a plan, and not Magers:
`
`So one of the things that you're not showing here is actuals. So you're showing
`us percentage, which is yes, towards his quota. But I think it’s good to reflect
`the actual dollar amounts because that shows their targets for the year. That
`shows where -- at the end of the year or at the end of that quarter what their
`numbers were.
`And based on that, they're significantly higher than what Paul is, and Paul was
`not (sic) into his territory -- in the territory much longer than Ryan, he was in
`the territory longer than Tom Cavanaugh, and I think longer than Tom
`Ackerman. And from all in -- margin number, you -- just the target showed a
`very small number.
`That shows a couple things. It shows that he was not putting on profitable
`business because of finance leases. And number two, his portfolio number was
`very small at that point.
`
`(Reply App. 007:2-21) In other words, a FAM’s attainment percentage shows the FAM’s
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`performance relative to his own quota, which is largely informed by the FAM’s past performance
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`and anticipated sales (HPE’s Motion, Dkt. 120 at 17 n. 6)—which Plaintiff does not dispute. In
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`contrast, comparing attainment in actual dollars gives a true apples-to-apples comparison, to show
`
`
`6 Data reflected in these charts is taken from the FAMs’ FY21 incentive data: Plaintiff (App. 323), Magers (App 351), Cavanaugh
`(App. 389), Capria (App. 354), and Ackerman (App. 357). The Year-End Total Margin in this chart is calculated by multiplying
`the % attainment through the end of the fiscal year (October 2021) by the Volume Margin quota for each rep (with the exception
`of Plaintiff – whose Year-End Volume Margin is inserted based on his speculative assertion of the number he would have achieved
`had he not been terminated).
`
`
`
`6
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`

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`Case 3:22-cv-02557-L Document 136 Filed 04/21/25 Page 13 of 32 PageID 6381
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`how FAMs perform relative to one another. When measuring in actual dollars, it cannot be
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`disputed that Plaintiff was the worst performing SLED FAM in all categories of quota attainment.
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`This is true even for Portfolio Margin and Asset Management. While the Oklahoma State
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`Government deal that unexpectedly closed in first month of FY21 pushed Plaintiff’s attainment
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`percentages way above his FY21 quotas for Portfolio Margin and Asset Management, if one looks
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`at the actual dollars behind those attainment percentages, Plaintiff’s performance measured the
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`worst on the team. That was true shortly after the first month of FY21, and certainly true by the
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`time of Plaintiff’s termination in May 2021. [See Dkt. 120 at 25-29.]
`
`Plaintiff’s performance, when measured in actual dollars, was the worst among the SLED
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`FAMs even if we accept, for the sake of argument, Plaintiff’s speculative assumptions about what
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`his FY21 performance would have been if he had stayed employed through the end of the fiscal
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`year (relying on the closing of the unforecasted Houston deal that led to his already low quota).
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`This includes in the Volume Margin category which was noted on his performance documents.
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`And while it is true that Magers’s ALCS Margin attainment was not significantly better than
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`Plaintiff’s, it was indisputably better, and Magers’s attainment of all other quota categories was
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`better than Plaintiff’s by orders of magnitude. Regardless, Plaintiff’s speculative exercise
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`completely ignores that, even if he could have attained his Volume Margin quota by the end of
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`FY21, he still would have failed to meet two out of the three key performance objectives in his
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`PIP and Performance Warning—attaining ALCS Margin and providing a revised Territory Plan.
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`Because “it is not for the Court to decide who was best qualified and whose employment should
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`have been terminated,” a court may only find pretext in the employer’s decision where the
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`employee establishes that he was “clearly better qualified” than the retained employee. Gary v.
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`Combined Group Ins. Services, Inc., 2009 WL 2868485 at *16, No. 3:08-CV-228-L (N.D. Tex.,
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`
`
`7
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`

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`Case 3:22-cv-02557-L Document 136 Filed 04/21/25 Page 14 of 32 PageID 6382
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`Sept. 4, 2009) (J. Lindsay adopting Magistrate’s Recommendation). The numbers show that
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`Magers was a better performer overall than Plaintiff, and Plaintiff has not approached the threshold
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`of demonstrating that he was “clearly a better performer” than Magers.
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`III.
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`PLAINTIFF CANNOT SHOW THAT HPE’S LEGITIMATE REASONS FOR HIS
`TERMINATION ARE FALSE OR UNWORTHY OF CREDENCE
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`Through a combination of misstatements, smears, and misinterpretation of the data, the
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`Opposition argues that HPE’s reasons for terminating Plaintiff are “false or unworthy of credence.”
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`But these arguments are, at best, red herrings, if not outright misrepresentations of the record.7
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`A.
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`Plaintiff’s Termination Was Based on Walker’s Objective and Subjective
`Assessment of Plaintiff’s Performance.
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`Plaintiff argues that HPE “admits” that Walker would have terminated Plaintiff even if his
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`deals closed and he met his sales goals, and that Walker now contends it was not the hard metrics,
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`but rather his “perceptions” about Hermann’s behaviors, that drove the termination. [Dkt. 125 at
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`44] The reality is that both are true. Yes – Walker established measurable performance metrics in
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`the PIP and Performance Warning, several of which Plaintiff indisputably did not meet (some of
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`which Plaintiff speculates he would have met had he remained employed). (App. 609-616) But it
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`is also undeniably true that Walker had subjective opinions regarding whether Plaintiff was making
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`sufficient effort to shift to the new business model. Walker did not observe any behaviors to
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`suggest that Plaintiff intended to pursue ALCS sales, and Plaintiff’s numbers reflected it. (App.
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`262-264; 323) That Walker had subjective opinions regarding Plaintiff’s performance does not
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`invalidate or negate the performance measures he put in Plaintiff’s PIP and Performance Warning.
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`7 Plaintiff argues [Dkt 125 at 31] that Plaintiff’s ALCS efforts would be documented had HPE saved Plaintiff’s emails. HPE
`testified that Plaintiff’s emails were not retained based on a 30-day retention policy. (Reply App. 15:11-16:13]) Had Plaintiff
`uncovered any evidence regarding willfulness or wrongdoing, he certainly would have pursued evidentiary sanctions or other relief
`based on this alleged “spoliation.” He did not because HPE also testified that all other relevant employees’ emails were retained,
`any email Plaintiff exchanged with them would have been retained with their emails, and Walker expected that any email related
`to Plaintiff’s performance would have been exchanged with him. (Reply App. 017-19) Thus, this argument fails and Plaintiff has
`failed to introduce any evidence top create a material fact issue and it is just included in another not-so-veiled attempt to smear
`HPE without substance.
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`
`
`8
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`

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`Case 3:22-cv-02557-L Document 136 Filed 04/21/25 Page 15 of 32 PageID 6383
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`B. Walker Did Not Make False Statements to HR When Preparing Plaintiff’s PIP and
`Performance Warning.
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`Plaintiff claims that Walker made false statements to HR or withheld key information (Dkt.
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`125 at 45-48), but this is demonstrably false.
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`1.
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`It Is Undisputed that Handy Told Walker that Plaintiff Had Performance
`Problems
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`Contrary to Plaintiff’s assertion, it is undisputed that Hermann’s prior manager expressed
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`concerns regarding his performance to Walker. The “trying to have” [a performance plan]
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`language only exists in Paulina Gomez’s notes (Pltf. App. 708) and is hearsay as to whether Walker
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`conveyed to exact message to her that, in fact, Handy was “trying to have” a performance plan of
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`some sort, but the record evidence confirms that Walker asserts that this conversation regarding
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`Handy’s concerns about Plaintiff’s performance happened, (App. 959:9-13, 962:2-963:4), and
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`Steve Handy testified that he did not recall—he did not deny it. (App. 644:20-23) Indeed, when
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`specifically asked, “if Shannon Walker were to testify that he did in fact have a conversation with
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`you about quota setting and -- and people’s performance in the territory around October 26th,
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`2020, would you have any reason to believe that that did not happen,” Handy’s response was, “I
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`can only say I don’t recall the meeting.” (App. 648:11-17) Handy was then asked, “But if Shannon
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`asked you for your opinion, would you have provided it, or would you have refused to give it to
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`him?” Handy replied by saying, “No, if he asked me, I would have provided it.” (App. 649:18-
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`21) Plaintiff’s assertion that Handy “denied” telling Walker that Plaintiff had performance issues
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`and was considering putting him on a plan is false. Walker asserts that the discussion occurred,
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`and Handy testified that he does not recall. Thus, it is an undisputed fact.8 Gomez’s summary of
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`what Walker conveyed to her is hearsay and does not create a genuine issue of fact regarding
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`8 Where one witness testifi