United States District Court, Northern District of Illinois, E.D
October 28, 1985
FRANK OGLESBY, PLAINTIFF,
COCA-COLA BOTTLING COMPANY OF CHICAGO/WISCONSIN, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Frank Oglesby ("Oglesby") sues his former employer, Coca-Cola
Bottling Company of Chicago/Wisconsin ("Coca-Cola"), under
42 U.S.C. § 1981 ("Section 1981"), Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e to 2000e-17 ("Title VII") and the Age
Discrimination in Employment Act, 29 U.S.C. § 629-634
("ADEA").*fn1 Oglesby asserts Coca-Cola discriminated against
him on the basis of his race (black) and his age (45) by
harassing him on the job and ultimately forcing him to resign.
Coca-Cola has now moved for summary judgment under Fed.R.Civ.P.
("Rule") 56. For the reasons stated in this memorandum opinion
and order, its motion is granted.
In November 1975 Coca-Cola hired Oglesby (then 38) as an
account manager at its Alsip, Illinois division ("Alsip").
Oglesby held an associate's degree in business administration
from Kennedy-King College (1970) and had done further course work
in business, marketing and accounting at Governor's State
University without taking a degree (Oglesby Dep. [hereafter
simply "Dep."] 3-4).*fn3 In early 1979 Oglesby was promoted to
the position of route manager.
Alsip served as a sales and distribution center for Coca-Cola
soft drinks (Coca-Cola, Tab, Sprite, Fresca and Mello Yello, Dep.
42) in the southern part of Chicago and the south suburbs. Actual
sales of the products were effected by the drivers who left Alsip
in the morning with loaded trucks to serve their regular assigned
routes. Each route manager (such as Oglesby) supervised four or
five routes and reported in turn to a region manager, each of
whom supervised up to five route managers. At the top of the
pyramid was the vice president of sales.
During most of Oglesby's tenure as a route manager, Duane
Hallstrom ("Hallstrom") was vice president of sales and Ed
Jancauskas ("Jancauskas"), a white male four years Oglesby's
junior, was Oglesby's region manager (P.Int. 8(c) supp.
response). In mid-October 1982 Jancauskas was transferred to
another Coca-Cola division and Octavus Morgan ("Morgan"), a black
male 15 years Oglesby's junior, was brought in to replace him
(Morgan Dep. 81; Hallstrom Dep. 174; P.Int. 8(c) supp. response).
Morgan had been a region manager at Coca-Cola's Niles, Illinois
division immediately before the transfer (Morgan Dep. 5).
Hallstrom chose him over a white candidate because (Hallstrom
He was the better choice. He was familiar with the
territory. He was black and I served [sic — should be
"surveyed"?] the territory and I thought Morgan would
be better for the area I had served [sic].
Morgan had direct supervision over four people: Oglesby; Ramsey
a male one year Oglesby's junior; Vic
Pernice ("Pernice"), a white male four
years Oglesby's senior; and Rod Roberson ("Roberson"), a black
male 21 years Oglesby's junior with a four-year college business
degree (Dep. 157). Oglesby, Fouda and Pernice were route
managers, while Roberson was a marketing development manager
(Morgan Dep. 10-11).
Oglesby had a substantial history of unsatisfactory performance
before Morgan arrived on the scene at Alsip. Less than four
months after that arrival and after "numerous conversations" with
Oglesby (Morgan Dep. 81),*fn5 Morgan determined Oglesby was not
a satisfactory employee and decided to terminate him. Morgan
spoke to Hallstrom at about 8 a.m. January 25, 1983 to "bring
him on board as far as my feeling about Frank's performance"
(Morgan Dep. 83). Hallstrom backed up Morgan's decision "as far
as the termination" (Morgan Dep. 84).*fn6
Hallstrom had his secretary type up a letter of resignation for
Oglesby to sign (Hallstrom Dep. 180). He also prepared a
"statement from Frank Oglesby and his acceptance of the severance
program, his acceptance of the several packages in turn for his
resignation" (Hallstrom Dep. 181). That statement, dictated to
Hallstrom by Coca-Cola's personnel director (Hallstrom Dep.
181-82), called for:
1. Salary continuous [sic] through February 15, 1983.
2. Payment of three weeks' vacation pay which
represents my 1983 vacation.
3. Employees benefit coverage through March 31,
In addition the statement recited (the "Release"):
In exchange for the above, I hereby release Coca-Cola
Bottling Company of Chicago and all owners, officers
and employees of the Company, referred to herein from
any claim now and in the future with respect to
employee benefits, insurance, salary or any other
claim related to employment.
Events came to a head late that afternoon. Morgan called
Oglesby into Hallstrom's office at about 4 p.m. and told him his
deficiencies as an employee had led Morgan "to the conclusion at
that point that he cease his employment with the company as a
route manager" (Morgan Dep. 89). According to Morgan and
Hallstrom — who joined the meeting — Oglesby was offered the
option to "sign [the resignation and Release] or resist" (Morgan
Dep. 108). He was told if he did not sign "he would be terminated
and he had the option to determine which route he wanted to take"
(Morgan Dep. 108).
It is undisputed that there was virtually no discussion.
According to Hallstrom, Oglesby simply said, "Okay, I will
resign" (Hallstrom Dep. 179). Oglesby claims he was so enraged by
the proceedings that he was "at a complete blank" (Dep. 139). He
did not read the papers (Dep. 141):
I was in such a rage that they asked me to resign, I
just signed a bunch of papers. I just wanted to get
out of there since they asked me. I was so mad so I
don't realize what I did.
Roberson ultimately took over Oglesby's position.*fn7
Oglesby charges he was a victim of race and age discrimination
manifesting itself through harassment (beginning in mid-1982) and
ultimately his termination.
Oglesby's testimony identified 10 separate forms of alleged
1. He was required to return to the office from the
field earlier in the day than other route managers
2. He received complaints from his supervisor
(Jancauskas) that his reports were overdue (Dep. 64).
3. He was assigned a "raggedy van" to drive, while
other route managers got new vans (Dep. 65).
4. He was required at least once to drive a
delivery truck when one of his route drivers was
absent, a job "the other people didn't have to do"
5. He was told not to drink alcohol while on the
job, though his bosses occasionally drank alcohol
during working hours (Dep. 71). He stopped drinking
during work hours when asked to do so, but he felt
harassed by "the way it was put to me" (Dep. 72).
6. He was "written up" for failing to have his key
account book*fn8 up to date, though stores on his
routes were being boycotted and thus would not stock
Coca-Cola products (Dep. 75-76).*fn9
7. He was "picked on" for failing to collect a
past-due account, even though the account had not
originally been on one of his routes and had only
recently been shifted into his district (Dep. 84-85).
8. He was occasionally required by Jancauskas to
wear a driver's uniform while in the field, though
other route managers were not similarly required to
do so (Dep. 85-86).
9. He received a written complaint from Jancauskas
for allowing three drivers on the due bill*fn10 to
take their trucks out for deliveries, though he
thought he had an oral agreement with Jancauskas that
the drivers would be permitted to drive (Dep. 88).
10. He received complaints that he had "no control
over [his] men" and that his men were not doing their
jobs properly out on the street (Dep. 97), although
the boycott had made it difficult to get the stores
to stock any Coca-Cola products — much less the full
In each instance Oglesby claims he was the only route manager
who was so treated.
Early in October 1982 — before he came under Morgan's
supervision — Oglesby took his grievance of harassment to the
Equal Employment Opportunity Commission ("EEOC") Chicago office.
He had an interview with a Ms. Jackson, who filled out a charge
form containing Oglesby's allegations of harassment (Dep. 58).
Under the heading "CAUSE OF DISCRIMINATION BASED ON MY (check
appropriate box(es))" the box for "RACE" was checked, and in the
body of the complaint Oglesby stated (Dep.Ex. 10):
I believe I have been discriminated against because
of my race, Black in that. . . .
Oglesby's charge was not filed in October 1982. Instead it was
signed by Oglesby and dated March 29, 1983, and it is
date-stamped as received by EEOC April 5.*fn11 Along with the
charge, Oglesby sent a handwritten two-page letter (the "Letter")
to "update" Ms. Jackson as to events since the charge was written
up, including his termination.*fn12 Oglesby received an EEOC
Notice of Right To Sue September 30, 1983 and filed this suit 82
At the outset Coca-Cola raises two questions potentially
dispositive of this action in whole or in part:
1. It urges the Release executed by Oglesby at the
time of his resignation bars this action in its
entirety as a matter of law.
2. It asserts the jurisdictional requirements for
an ADEA action have not been met, requiring dismissal
of the age discrimination claim.
It is wrong on both counts.
There appears to be no general public-policy bar to negotiated
releases of employment-discrimination claims. "[P]resumably an
employee may waive his cause of action under Title VII as part of
a voluntary settlement. . . ." Alexander v. Gardner-Denver Co.,
415 U.S. 36, 52, 94 S.Ct. 1011, 1021, 39 L.Ed.2d 147 (1974); see
United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826,
860-62 (5th Cir. 1975). Oglesby therefore does not argue the
Release is per se invalid. Rather he says the waiver is
ineffective because neither knowing nor voluntary. Alexander, 415
U.S. at 52 n. 15, 94 S.Ct. at 1021 n. 15.
Oglesby's first line of attack is that the Release is
ambiguous, so he cannot be said to have known precisely what
rights he was surrendering when he signed. Coca-Cola in turn
seeks to sever the last clause ("any other claim related to
employment") from the Release and construe it as an unambiguous
"general release" (R.Mem. 2-3). But when placed in the context of
the preceding clause, the claimed generality of the Release is
not so clear: "any claim . . . with respect to employee benefits,
insurance, salary or any other claim related to employment" may
well be read as a release of claims limited to the types of
emoluments of employment to which an employee is normally
entitled — "employee benefits, insurance, salary" being examples
of such emoluments — but not of claims related to allegedly
illegal activity by the employer. That would be a classic
illustration of the ejusdem generis principle. United States v.
LaBrecque, 419 F. Supp. 430, 434 (D.N.J. 1976) ("The maxim,
ejusdem generis, limits general terms . . . which follow specific
terms . . . to matters similar to those so specified").
Contrary to Coca-Cola's assertion, nowhere on its face is the
Release characterized as a "general release," nor is it phrased
as such releases normally read. Its language may fairly be
contrasted with the typical general-release terminology in one of
the cases relied upon by Coca-Cola: "any and all manner of
actions, cause or causes of actions . . . [or] claims . . .
whatsoever at law or in equity. . . ." Green v. Valve Corp. of
America, 428 F.2d 342, 345
(7th Cir. 1970) (emphasis, and a substantial amount of other
sweeping verbiage, omitted); see also Pilon v. University of
Minnesota, 710 F.2d 466, 467 (8th Cir. 1983) (upholding against
a Title VII claim a release of "any and all manner of actions,
suits, claims, damages, judgments, levies, and executions,
whether known or unknown, . . . which Elaine Pilon ever had . . .
against these parties from any act or thing occurring prior to
the date of the execution of this document . . ."). Clearly the
language of Coca-Cola's release does not begin to approach the
breadth of those in Green and Pelon (each of which involved a
classic example of the true "general" release).
Yet any holding that Oglesby had no adequate knowledge of what
he was releasing must not rest on the words of the Release alone.
As this Court put it in Oberweis Dairy, Inc. v. Associated Milk
Producers, Inc., 568 F. Supp. 1096, 1101 (N.D.Ill. 1983):
It is well established a general release is valid as
to all claims of which a signing party has actual
knowledge or that he could have discovered upon
Whether or not the "general release" label is the right one to
attach to the Release, the real question is what the document was
intended to embrace. On that score it would be disingenuous for
Oglesby to assert he had no knowledge of his potential employment
discrimination claims when he was asked to sign the Release.
Indeed the fact he had gone to EEOC in October 1982 reflects his
concern for his statutory rights well before the date of his
termination (see Dep. 60-61), though his not having actually
filed a complaint by then might indicate he was not sure of the
validity or strength of his claim.
Knowledge of a potential claim, however, is not the issue. What
does control is what the Release was intended to cover (intent
being determined in the manner familiar to all contract disputes)
in the light of such knowledge, and what it could validly cover
(validity too being determined in contract terms). After all it
must not be forgotten the Release is a contract, even though
executed in the context of a statutory employment discrimination
claim, and its interpretation must be according to principles of
contract law. See Oberweis, 568 F. Supp. at 1098 n. 5 (release of
antitrust liability claim, in the context of a federal antitrust
action, is nevertheless a contract governed by state law).
In that context Oglesby's first line of attack (the lack of any
intent to release the claims now in issue, confirmed by the
failure of the Release language unequivocally to cover such
claims) meshes with his second line of attack (the lack of any
such intent because vitiated by duress). In the latter respect
Oglesby urges the Release must be voided under contractual
principles of duress because it was presented to him on a
take-it-or-leave-it basis, with no prior negotiation or
opportunity to discuss the terms with an attorney. According to
both Morgan and Hallstrom, the Release was prepared in advance
for Oglesby's signature and the papers were presented to him in
terms of "sign or resist." He was given the choice to sign or be
fired, and although Morgan and Hallstrom said they explained the
Release entitled him to certain benefits (Morgan Dep. 108;
Hallstrom Dep. 179), there was apparently no discussion of what
Oglesby would be giving up or any opportunity offered to adjust
the terms of the deal.
That factual matrix is a far cry from the situation in LaBeach
v. Beatrice Foods Co., 461 F. Supp. 152, 158 (S.D.N.Y. 1978),
relied upon by Coca-Cola, where the court observed the employee
"did not execute the release until after he had deliberately and
carefully prepared for the . . . settlement meeting" resulting in
his release of claims for a substantial payment in cash. Nor is
Oglesby's situation comparable to that in Pilon, 710 F.2d at 468,
where the employee who released her Title VII claims negotiated
the precise terms of the release while represented by her
attorney (in LaBeach the employee had similarly consulted with
his lawyer in preparing for the settlement
meeting, though the lawyer was not at the meeting itself).
Of course negotiation of terms through counsel is not the sine
qua non of a valid contract. But in this case that factor might
have mitigated the evident potential for duress. Illinois
recognizes the rule that "threatened acts of a party may
constitute duress where their undoubted effort was to undermine
the ability of another to refuse to execute an agreement."
Laemmar v. J. Walter Thompson Co., 435 F.2d 680, 682 (7th Cir.
1970). Oglesby's "option" to "sign or resist," while not itself
an illegal threat, might have been sufficient to "put the
victim in such fear as to act against his will." Kaplan v.
Kaplan, 25 Ill.2d 181, 185, 182 N.E.2d 706, 709 (1962). In
particular "the threat of discharge from one's employment may
constitute duress which would make voidable a contract executed
while a party was under such a threat." Laemmar, 435 F.2d at 682.
Certainly a factfinder might rationally find the threat of being
fired traumatic, especially for a managerial employee of middle
age. And as Laemmar teaches, a threat may amount to duress even
though the employer is legally entitled to fire the employee. Id.
Most critically for current purposes, the existence vel non of
duress under such circumstances must be a matter for the trier of
fact. Id. That conclusion is buttressed by Oglesby's assertion
he was in a state of "rage" during the entire interview, causing
him to be "at a complete blank" (Dep. 139). And even apart from
that factual issue, to return to Oglesby's first point, the
ambiguities inherent in the language and factual context of the
Release preclude any ruling as a matter of law as to the
Release's intended coverage. Under the circumstances the question
of contractual intent must likewise be for the trier of fact.
Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir. 1976) (per
curiam). For either or both of Oglesby's asserted reasons, then,
the Release does not necessarily bar his claims.
2. Prerequisites to ADEA Action
Section 626(d) provides:
No civil action may be commenced by an individual
under this section until 60 days after a charge
alleging unlawful discrimination has been filed with
the Equal Employment Opportunity Commission. . . .
Stearns v. Consolidated Management, Inc., 747 F.2d 1105, 1111
(7th Cir. 1984) holds the Section 626(d) filing requirement is
not jurisdictional (so as to permit sua sponte dismissal of an
ADEA suit for lack of compliance), but it is a condition
precedent to an ADEA suit that may be waived or equitably tolled.
There has been no waiver by Coca-Cola, nor does Oglesby claim
equitable tolling. Thus the question is simply whether Oglesby
has "filed" an age discrimination claim.
It is conceded Oglesby did not check a box labeled "age
discrimination" on his EEOC charge sheet, for no such specific
box exists.*fn13 Nor did Oglesby's statement of particulars in
the EEOC charge (Dep.Ex. 10) mention age discrimination or any
facts that would imply it (even Oglesby's own age was not
specified), so as to satisfy Jenkins v. Blue Cross Mutual
Hospital Insurance, Inc., 538 F.2d 164, 168 (7th Cir. 1976) (en
banc).*fn14 Instead Oglesby points to the handwritten Letter,
which he apparently included with his charge when he finally
signed and sent it in.*fn15 Oglesby wrote in the Letter
here, except that the original was printed entirely in capitals):
They have brought in new mgrs black Hispanic and
white, this is still a cover up. It took most acct
mgr five years to become district mgr. Yet they're
bringing in young men and giving them these position
in two week, cuting cost by dismissing mgr with more
time due to coming salary increase.
Oglesby contends that is sufficient notice to EEOC of a claim
based in part on age discrimination. So long as EEOC has actual
notice of a complainant's age discrimination claim (even though
the charge as written up makes no specific charge of such
discrimination), he or she may bring suit under ADEA, Holly v.
City of Naperville, 571 F. Supp. 668, 671-72 (N.D.Ill. 1983). EEOC
filings are mandated not to satisfy any technical pleading
requirement reminiscent of the old forms of action, but simply to
give EEOC the opportunity to investigate the basis for the claim
and to "encourag[e] informal conciliation and foster voluntary
compliance" by the employer. Brown v. Puget Sound Electrical
Apprenticeship & Training Trust, 732 F.2d 726, 730 (9th Cir.
1984). Obviously EEOC cannot investigate or attempt to conciliate
a charge of which it is not aware. But if it has actual notice,
technical compliance with the format of its charge sheet — not a
litigation complaint to be served on the employer, but just a
source of information for EEOC to use in its investigation — may
be convenient but is scarcely necessary. That is not a fair
reading of "a charge . . . filed with" EEOC for Section 626(d)
Coca-Cola's further argument — that the ADEA charge must be
stricken because EEOC never in fact investigated the claim — is
equally without merit. Coca-Cola is simply wrong in claiming
Clark v. Chrysler Corp., 673 F.2d 921, 931 (7th Cir. 1982)
requires actual EEOC investigation as a condition precedent to an
ADEA suit. Clark treated lack of such investigation as an
evidentiary indication that no claim of sex discrimination had in
fact been brought to EEOC based on information supplied by the
claimant. Here Oglesby relies on the Letter, not on EEOC's
investigation, to show he made an age-discrimination claim. What
controls is not what EEOC did but what it was given the
opportunity to do. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99
S.Ct. 2066, 60 L.Ed.2d 609 (1979) teaches an age-discrimination
complainant need do no more than file an EEOC charge and wait 60
days before bringing suit. See Martinez v. United Automobile,
Aerospace & Agricultural Implement Workers of America, Local
1373, 772 F.2d 348, 351 (7th Cir. 1985); see also Babrocky v.
Jewel Food Cos., 773 F.2d 857, 862, 866 (7th Cir. 1985)
(discussing the "utmost liberality" with which EEOC charges are
to be construed).
Coca-Cola makes two further threshold contentions to bar the
ADEA claim. Neither succeeds.
First Coca-Cola takes the unpersuasive tack that Oglesby's
statements in the Letter cannot be construed to refer to age
discrimination, addressing instead only relative seniority among
employees. But the Letter refers to the "young men" being brought
in to replace managers "with more time due. . . ." While Oglesby
does not explicitly say the young men are replacing older men, he
clearly complains an influx of young men has caused him trouble.
No exercise of EEOC imagination would be required to read that
and recognize a potential age discrimination problem.
Second, Coca-Cola asserts (1) the Letter is unauthenticated and
therefore inadmissible under Fed.R.Evid. 901, so (2) it fails the
Rule 56 test permitting consideration of "any material that would
be admissible or usable at trial." 10A Wright, Miller & Kane,
Federal Practice and Procedure: Civil § 2721, at 40 (1983). At
the outset it should be noted Oglesby does not offer the Letter
as hearsay to prove the truth of what it asserts: Coca-Cola's
having engaged in age discrimination. Rather he seeks only to
show EEOC received notice of his age discrimination claim.
Where documentary exhibits are presented by a Rule 56 movant to
establish the absence of any disputed issue of fact, our
Court of Appeals has required they bear the earmarks of
"reliability and trustworthiness." Bracey v. Herringa,
466 F.2d 702, 704-05 (7th Cir. 1972). If this Court were faced with a
hearsay problem and the Letter contained matter outside any
recognized hearsay exception, that matter could not be considered
on a Rule 56 motion even on behalf of the nonmovant. Pfeil v.
Rogers, 757 F.2d 850, 860-61 (7th Cir. 1985).
Here the Letter bears EEOC's date stamp, identical in form,
date and time to the date stamp on the charge sheet itself (see
n. 15). That gives "at least . . . a prima facie aura of
reliability" justifying this Court's reliance, absent "specific
objections" from Coca-Cola. Olympic Insurance Co. v. H.D.
Harrison, Inc., 418 F.2d 669, 670 (5th Cir. 1969) (IBM printouts
made in regular course of business may be considered on Rule 56
motion absent specific objections to their reliability).
Coca-Cola argues not that the Letter cannot be authenticated
for the purpose of showing EEOC receipt, but only that it has not
yet been authenticated. Nothing about the stamp or the Letter
gives pause in that respect.
Moreover Coca-Cola itself relies on the authenticity of the
date stamp on the charge sheet in support of its argument as to
what was filed with EEOC.*fn16 It cannot have it both ways. This
Court would commit an injustice by granting Coca-Cola summary
judgment in Oglesby's ADEA claim due to such an easily-remedied
flaw, and it declines to do so.
Oglesby's Claims of Discrimination
This opinion turns at last to the substantive merits. Both
sides have engaged in extensive — and at times contentious —
discovery. Neither side has been wholly candid in his or its
exposition of the facts in the briefs, and Oglesby has failed to
comply with this District Court's General Rule 12(f) (requiring
him to controvert Coca-Cola's Statement of Uncontested Material
Facts). All that has made this Court's (and before that its law
clerk's) task more difficult but (as the following discussion
reflects) still manageable.
Section 623(a)(1) provides:
It shall be unlawful for an employer —
(1) to . . . discharge any individual or otherwise
to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges
of employment, because of such individual's
age. . . .
That "because of . . . age" requirement is a proximate cause
concept — what Golomb v. Prudential Insurance Co. of America,
688 F.2d 547
, 552 n. 2 (7th Cir. 1982) (emphasis in original) defines
as age being "a determining factor" in the employee's discharge
or other adverse employment action. As Parker v. Federal National
Mortgage Association, 741 F.2d 975
, 978 (7th Cir. 1984) said:
[A]n employer does not violate the ADEA merely by
discharging an employee whose age falls within the
Like most other courts, our Court of Appeals has adopted for
ADEA purposes (see Golomb, 688 F.2d at 551) the Title VII
three-step approach articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792
, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668
(1973) and Texas Department of Community Affairs v. Burdine,
450 U.S. 248
, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981):
1. Plaintiff must prove a prima facie case of
discrimination by a preponderance of the evidence.
2. Defendant must then articulate a legitimate,
nondiscriminatory reason for the adverse action.
3. If defendant carries that burden, plaintiff must
then show by a preponderance of the evidence that the
proffered reason or reasons amounted to a pretext for
Those shifting burdens relate to production only, with the burden
of persuasion always remaining on the employee (Burdine, 450 U.S.
at 253, 101 S.Ct. at 1093). Of course the Rule 56 context
requires the employee only to demonstrate the existence of a
material fact issue, not to carry the day entirely.
There is no hard-and-fast rule as to how a prima facie ADEA
case must be made. Direct evidence, such as an employer's
statement about wanting to get rid of older employees and to
replace them with younger ones, will of course suffice. Stumph v.
Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir. 1985). Absent
such direct evidence, a prima facie case may be established when
a plaintiff shows (id. at 96):
(1) he was a member of the protected class (persons
aged 40 to 70); (2) he was qualified for his
position; (3) he was terminated; and (4) he was
replaced in his position by a younger person.
Title VII's Section 2000e-2 prohibits discrimination "because
of . . . race, color, religion, sex, or national origin" on the
same terms as ADEA. Finally Section 1981 provides:
All persons within the jurisdiction of the United
States shall have the same right . . . to make and
enforce contracts . . . and to the full and equal
benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white
citizens. . . .
It requires purposeful discrimination on the basis of race.
General Building Contractors Association v. Pennsylvania,
458 U.S. 375
, 389, 102 S.Ct. 3141, 3149, 73 L.Ed.2d 835 (1982). As
with Title VII and ADEA, under Section 1981 "the basic inquiry is
the same: Was [plaintiff] suspended for an impermissible reason
of racial animus?" Gill v. Westinghouse Electric Corp.,
594 F. Supp. 48, 51 (N.D.Ill. 1984).
Given the identity of the burden of proof involved, there is no
need to go into Oglesby's claims of race and age discrimination
separately. Oglesby has not made out a prima facie case as to
Because Oglesby was a 45-year-old Black man, he was within the
protected classes of race and age, and he admittedly suffered an
adverse employment action.*fn17 See Stumph, 770 F.2d at 96. But
Coca-Cola says Oglesby was not qualified for his position because
the undisputed facts show he was not performing up to Coca-Cola's
expectations: His communications with his salesmen were poor
(Morgan Dep. 22); he did not call on all of his "key accounts"
even once a month, though twice a month was the requirement
(Morgan Dep. 33, 41); he did not ride his routes at least twice a
week as required (Morgan Dep. 53-54); he did not see that
"corporate standards" were maintained in the stores on his routes
(Morgan Dep. 56); he did not keep his supervisor fully informed
of competitors' activities in the marketplace as required (Morgan
Dep. 105); and he allowed deliveries to be made on a charge basis
to a store not approved for credit purchases (Morgan Dep. 102).
In addition he produced the lowest gross profit of any route
manager at Alsip in 1982 (P.Int. 4(a)).
Oglesby first urges those complaints about his performance are
not relevant to his prima facie case. As he points out, Coca-Cola
responded to P.Int. 3(c) ("State why the Plaintiff in January of
1983 did not have the necessary qualifications, and state what
qualifications he lacked") by stating, "Plaintiff did not lack
the necessary qualifications." Oglesby thus would have it he also
met the second Stumph factor: "He was qualified for his
That is no more than a semantic quibble. Coca-Cola does concede
was "qualified" for his job in the limited sense he had the
prerequisite qualifications to be hired into that job. In view of
his having been a route manager for about four years at the time
of his termination, it could hardly be said he was not
"qualified" in that sense. But to be "qualified" for purposes of
establishing a prima facie case, an employee such as Oglesby must
show he "was performing his job at a level that met his
employer's legitimate expectations." Huhn v. Koehring Co.,
718 F.2d 239, 243 (7th Cir. 1983) (quoting Loeb v. Textron, Inc.,
600 F.2d 1003, 1014 (1st Cir. 1979)). See also Mason v. Pierce,
774 F.2d 825, 827-29 (7th Cir. 1985) (upholding summary judgment
against Title VII claimant whose affidavit did not show she met
her employer's legitimate job performance expectations; she did
not show she was "qualified" for her job and thus did not make
out a prima facie case of race discrimination).*fn18
Thus Oglesby's prima facie case must in part show he was "doing
what his employer wanted him to do." Kephart v. Institute of Gas
Technology, 630 F.2d 1217, 1223 (7th Cir. 1980) (per curiam). Of
course the employer may not make unreasonable demands upon an
employee in order to allege dissatisfaction. Id. But Oglesby's
strenuous efforts to make out a case for the unreasonableness of
Coca-Cola's requirements have not "set forth specific facts
showing that there is a genuine issue for trial." Egger v.
Phillips, 710 F.2d 292, 296 (7th Cir. 1983).
For the most part Oglesby has attempted to show sales volume
was the most important component of a route manager's job, and at
least during certain months his sales volume was quite good
(Morgan Dep. 59-64). Morgan said sales ranked highest in
importance among route managers' responsibilities (Morgan Dep.
17), and Hallstrom rated sales as 85-90% of a route manager's
goals (Hallstrom Dep. 45). But even if it were conceded that
Oglesby was a top salesman (notwithstanding his bottom rank for
the whole of 1982),*fn19 he cannot claim he met his employer's
legitimate expectations by simply keeping up his sales. Coca-Cola
unquestionably required other things as well, such as monitoring
of delinquent accounts, reports on market activity, riding routes
with drivers and filing timely written reports. As Kephart, 630
F.2d at 1223 teaches:
The question before the court is not whether the
company's methods were sound, or whether its
dismissal of [plaintiff] was an error of business
judgment. The question is whether he was
discriminated against because of his age.
Oglesby cannot then (and in fairness, he does not) claim he met
the business expectations of Coca-Cola. See Mason, at 829
(plaintiff's affidavit admitted errors and warnings but blamed
others; that did not detract from entry of summary judgment
against her). Instead he advances the position that other route
managers were not called on to do what was required of him. If
true, that would have double relevance:
1. If no other route managers were required to ride
routes, monitor delinquent accounts and so on, that
would tend to show the requirements applied to
Oglesby were not "legitimate" or a genuine aspect of
a route manager's job.
2. If no white or younger route managers were
required to perform these tasks, that would tend to
show Coca-Cola's rationale for dismissing him was
Those arguments might well carry the day for Oglesby if only he
could back them up. But after hundreds of pages of deposition
testimony and extensive documentary discovery, Oglesby has really
produced no evidence other route managers were treated any
differently than he. Though he claimed he was made to return to
the office earlier in the afternoon than the other route
managers, he could not "name names" of anyone given more latitude
than he: "I don't know who's in, who's out" (Dep. 64). Though he
complained he was being harassed by Jancauskas about late
reports, he did not know if anyone else was allowed more time; in
fact Jancauskas would tell everyone about due dates "at a mass
meeting" (Dep. 65). Though he said he was made to drive a route
truck when a driver was unavailable, he admitted other route
managers also drove trucks if need be (Dep. 67-68). Though he
claimed other employees drank on the job, he could not point to
anyone else at route manager level or below who drank on the job
unless at a sales meeting with a supervisor (Dep. 71-74).
In sum, Oglesby's "bare conclusory allegations" of disparate
treatment are just the sort that fail to establish a genuine
issue of material fact as to discrimination. Parker v. Federal
National Mortgage Association, 567 F. Supp. 265, 270 (N.D.Ill.
1983), aff'd, 741 F.2d 975 (7th Cir. 1984). Nothing in his
evidence suggests the duties thrust on him were illegitimate or
there was selective enforcement of standards.
On the contrary, Morgan testified Oglesby was the only one of
his route managers who failed to visit key accounts as required
and to ride routes regularly (Morgan Dep. 33, 41). Oglesby
attempts to undercut that evidence by pointing to the statement
of Donald Nash ("Nash"), who supervised Oglesby briefly at Alsip
in 1981. Nash expressed the views that route riding was not
terribly important and failure to ride routes was not a basis for
disciplining route managers (Nash Dep. 40). From the evidence,
however, region managers such as Nash and Morgan have a great
deal of latitude as to what they require of route managers under
their supervision. Morgan could rationally have perceived route
riding as a significant part of his management program, while
Nash did not. And once again failure regularly to ride the routes
was only one of Oglesby's flaws in Morgan's eyes.
In short, Oglesby's evidence, viewed most favorably to him,
might at worst establish he was a victim of bad business judgment
on his supervisor's part — or even of individualized persecution
(though the latter would represent a real stretching of the
facts). What is dispositive here is that none of the evidence
reasonably creates the inference that the business judgment (or
the less tenable "persecution") was based on Oglesby's race or
Oglesby raises another series of challenges to Coca-Cola's
evaluation of his performance. He claims the PUSH boycott of
Coca-Cola products during five months of 1982 affected his
statistics disproportionally, because most of his accounts were
in Black neighborhoods. Some doubt exists whether Oglesby's sales
quota was adjusted to reflect the boycott: Hallstrom said it was
(Hallstrom Dep. 206) while Nash said it wasn't (Nash Dep.
That entire issue is a red herring. Oglesby was fired by Morgan
— who became his supervisor three months after the boycott ended
— not so much because of Oglesby's sales performance, but for his
failure to take care of other administrative duties required of
him by Morgan. And even as to Oglesby's sales performance, he has
offered no evidence of the extent to which any problems he had
were a result of the
boycott or (as Coca-Cola would have it) of his poor
Aside from his bare observation as to the existence of the
boycott and the suggestion his poor performance should be laid at
its door, Oglesby has tendered no facts in any way implying
Morgan's decision to terminate him was related to impermissible
considerations of race or age. As already said, the boycott was
past history when Morgan came aboard. Oglesby has directed this
Court to no overt statements of a discriminatory nature (cf.
Stumph, 770 F.2d at 94), nor does he show facts from which this
Court might infer a general atmosphere of disparate treatment of
whites and blacks or of younger and older employees.
All of Oglesby's assertions that bear examination (and some
that do not) have now been reviewed. It is plain he has not
established a prima facie case in McDonnell Douglas-Burdine
terms, for he has not shown he was "qualified" under the
Huhn-Kephart standard.*fn23 And as pointed out earlier, even
were this Court to allow Oglesby's foot into the door, the same
arguments Coca-Cola advances to show he was not "qualified" would
serve as an articulation of legitimate nondiscriminatory reasons
for his termination. In those terms, Oglesby has wholly failed to
show facts that would enable this Court even to infer a pretext.
Gill, 594 F. Supp. at 53.
Whether under Title VII, ADEA or Section 1981, the analysis of
Oglesby's complaint is the same: He has failed to show any facts
indicating either race or age was a factor in Coca-Cola's
actions. That entitles Coca-Cola to prevail on its Rule 56
There is no genuine issue of material fact and Coca-Cola is
entitled to a judgment as a matter of law. This action is
dismissed with prejudice.
Coca-Cola's request for attorneys' fees, however, is denied.
Although Oglesby failed to make out a case, his claim was not
objectively frivolous, and his positions were correct on
Coca-Cola's strenuously urged issues as to the Release and the
ADEA filing. Under the principles announced in Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54
L.Ed.2d 648 (1978), Coca-Cola thus is not entitled to attorneys'