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“You know what they do to old horses, don’t you? They shoot them. You know what we do to old [regional vice presidents], don’t you? We take them out and shoot them.” The evidence in an age and disability discrimination case against Foot Locker Inc. included that perhaps inflammatory statement by a colleague of Robert Derr, a 48-year-old regional vice president for sales. The comment, which Foot Locker conceded, wasn’t all that looked bad for the company. Derr was fired just 19 days after the company gave him a glowing review and a bonus. He’d been given no oral or written warning after 18 1/2 years with the company. And knowing that Derr suffered from anxiety disorder and fear of flying, Foot Locker had him fly from California to Florida for a 10-minute termination meeting � on Mother’s Day. Derr was demanding $4.1 million in actual and $25 million in punitive damages. Mock trials that Shook, Hardy & Bacon of Kansas City, Mo., staged to test the case suggested strongly that Derr would win. The company “vigorously” but unsuccessfully tried settling before deciding to try its luck with a jury, according to Bill Martucci, chairman of Shook Hardy’s employment litigation and policy practice group, who was lead counsel. That gamble paid off when, following a two-week trial that began in November 2006, the jury returned a defense verdict after three hours’ deliberation. Derr v. Foot Locker Inc., No. 2:04-cv-09523- AG-E (C.D. Calif. 2006). The outcome surprised even the defense lawyers. Just 15 minutes before the jury came back, Martucci had been ready to brace his client for a major loss. “We heard that a juror had asked the court for the definition of the word ‘malicious,’ ” Martucci said. “ We knew that the way the interrogatories were set up, the jury would only get to the question with the word ‘malicious’ if they were finding for the plaintiffs. “I really did think we were very much in trouble,” he said. “So we were most thankful when the jury came back with what it did.” Later, jurors told Martucci that though the job loss was harsh for Derr, they felt that Foot Locker based it on business factors � just as Martucci had argued. “Our focus was to show that Foot Locker’s decision was a business judgment,” Martucci said. “We showed that Foot Locker was compassionate. We made reference to others who had disability within the company, and we were respectful to the plaintiff.” To get a handle on the case, Martucci, along with Shook Hardy associate Kristen Page and others at the firm, spent time with company executives, said Dennis Sheehan, vice president and deputy general counsel for Foot Locker. “They learned retail and how merchant executives think, so they could teach the jury,” Sheehan said. Shrinkage rates A key teaching point involved the importance of so-called “shrinkage” � goods that leave the shop through, say, theft or breakage, and aren’t counted as sales. The defense conceded that sales figures were good on Derr’s turf, which included Alaska, California, Hawaii, Oregon and Washington. “We didn’t attack the plaintiff at all,” Martucci said, but rather acknowledged Derr’s high sales and didn’t try to diminish his successes. Still, the shrinkage rate of merchandise in Derr’s territory had been an ongoing problem, and in his last year on the job had exceeded 2%, considered within the “danger zone” among retailers. The shrinkage report that led to his ouster was prepared only after Derr received his last, stellar evaluation, Martucci said. “He didn’t receive a warning, but when you are at that high a level with high responsibility, your own numbers tell you how you are doing. He could have read the signals, ” Martucci said. Beyond proving to the jury that the decision was strictly business, the defense team tried to show that Foot Locker had a compassionate side. “We showed that there are employees who are more senior who have meaningful jobs with the company,” Martucci said. Another company regional vice president, Joe Berry, who is four years younger than Derr, testified that following a heart attack Foot Locker treated him generously. As for the they-shoot-horses comment, Martucci convinced the jury that it was a joke of the kind common at Foot Locker. “It was the atmosphere,” he said. The comment was “meant to be playful, not meant to be harsh” � like the way star athletes sometimes are teased about “losing their edge.” “It was meant to be used as a challenge,” he said. The plaintiff’s attorneys, Denise Placencio and John Dacorsi of Dacorsi & Placencio in Woodland Hills, Calif., did not respond to requests for comment. As for the mock trial, Martucci played the role of the plaintiff’s lawyer, highlighting the defense’s weaknesses, Sheehan said. “It brought focus to the points we had to make,” he said. In the actual trial, Martucci was able to connect with the jury, he said. “They saw that he had credibility. They could trust him and therefore trust our witnesses.”

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