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November 15, 1994



The opinion of the court was delivered by: JAMES B. ZAGEL

When the Union Pacific Railroad acquired the Missouri-Kansas-Texas Railroad, a/k/a KATY, in 1988, Richard Ringer chose employment with Union Pacific over a buy-out deal offered to all KATY employees. Ringer had been a sales representative for KATY in Milwaukee. His employment with Union Pacific called for him to perform similar duties in the same location under the title of "account manager." Robert Merrifield, Regional Sales Manager in Chicago, supervised Ringer and all other account managers in the region and reported to William Rody, Assistant Vice President of Sales, who managed all Union Pacific sales personnel--80 sales reps in nine regions.

 Union Pacific presented Ringer with a Job Agreement and Performance Appraisal form that outlined job requirements and objectives and identified categories of criteria for semi-annual evaluations of account managers. Performance ratings range from 1 to 5--best to worst. Each account manager receives a rating in each category and an overall performance rating. An account manager who receives an overall rating of 4 ("does not meet some performance requirements") or 5 ("does not meet performance requirements") is automatically enrolled in a Development Action Plan, designed to remedy performance shortcomings. Merrifield evaluated the account managers in his region, and Rody reviewed the evaluations from all nine regions.

 Further evaluation comes in the form of observation during actual customer calls. Merrifield accompanied each of his account managers on a number of such calls and evaluated their performance according to the criteria set forth in the Quality of Call form. Here too, the rating scale is 1 to 5, but the direction is reversed; one is worst, five is perfect.

 Ringer received ratings of 3 ("consistently meets performance requirements" in almost all categories and for overall performance on Merrifield's first two formal evaluations, May 1989 and October 1989. Nevertheless, on both occasions Merrifield ranked Ringer at the bottom of account mangers in his region, and, late in 1989, recommended Ringer's relocation to Chicago so that Merrifield could supply more direct supervision *fn1" and Ringer could work on steel accounts with which he had become familiar at KATY. Moreover, in December 1989, Merrifield gave Ringer a quality-of-call rating of 2.95, against a regional average of 3.49. Ringer's reassignment to Chicago took effect on 1 January 1990.

 Three months later, and two months before Ringer's next formal evaluation, Merrifield sent him a memorandum outlining several performance problems, including failure to submit timely expense reports, failure to check-in when out of the office, a substantially insufficient frequency of face-to-face client calls, and failure to produce timely Major Account Action Plans. Whether Ringer's performance had declined or Merrifield's patience had grown thin since the last evaluation, *fn2" the memorandum clearly communicates Merrifield's dissatisfaction: "the overall execution of your position accountabilities does not meet performance requirements. I cannot and will not accept a continuance at present levels."

 Two months later, the May 1990 evaluation reflected Merrifield's continuing displeasure. Ringer's overall performance rating fell to 4 ("does not meet some performance requirements"), requiring his enrollment in a Development Action Plan. Ringer received ratings of 4 in half of the eight performance categories, with comments citing numerous shortcomings. His quality-of-call rating had risen only slightly, to 3.07, and he was $ 7.4 million short of his 1990 revenue goal. *fn3"

 Although some problems persisted, Ringer generally bounced back in his next formal evaluation, October 1990. His overall rating returned to 3 and he received a lesser rating in only one of the eight performance categories. *fn4" Nevertheless, Merrifield still ranked Ringer near the bottom of account managers in the region--eleventh out of twelve, the twelfth being a new employee.

 Three months after this evaluation, in January 1991, William Rody accompanied Ringer on a call to one of Union Pacific's largest accounts, U.S. Gypsum. Rody frequently reviewed performance in the field; from 1988 to 1991, he attended approximately 3000 client calls with Union Pacific sales personnel.

 According to Ringer, during their ride to U.S. Gypsum, Rody asked his age, Ringer replied that he was 54, and Rody responded by saying "You scare me saying that." Rody does not recall the conversation.

 He does remember that Ringer's call at U.S. Gypsum was the worst he had ever attended. Specifically, he says that Ringer had inadequately prepared, failed to speak clearly, and addressed the customer in an adversarial and interrogating manner. *fn5" Ringer says that he reported Rody's comments to Merrifield, who told him "That is no big issue." Of course, Merrifield's comment on Ringer's report says little about Rody's assessment of what he saw and heard at U.S. Gypsum, especially since Ringer says he related to Merrifield three concerns Rody had raised, but does not include among these Rody's criticisms for failing to speak clearly and addressing the customers in an adversarial manner, issues which Ringer admits Rody raised with him after the call.

 At Rody's suggestion, Merrifield subsequently decided to place Ringer on a second Development Action Plan. No other account manager in the region was on such a plan at the time. Merrifield informed Ringer that Union Pacific would remove him from his position unless his performance improved.

 In April, Merrifield told Ringer his response to the Development Action Plan had been "perfect" up to that time, but Merrifield's next formal evaluation, two months later, reflected extreme dissatisfaction. In the May 1991 review, Ringer's overall rating returned to 4. His quality-of-call rating had dropped to 2.5. He had made no calls on prospective new customers between January and June of 1991. As on every prior formal evaluation, Merrifield cited Ringer for insufficient participation in the Major Account Action Plan program and communication problems. On this evaluation, reported on an apparently new form that provided for ratings in nine performance categories, Ringer received six ratings of 4 ("does meet some performance requirements") and one of 5 ("does not meet performance requirements"). The rating of 5 reflected a shortfall against Ringer's 1991 revenue goal of $ 2.8 million as of April. *fn6" Merrifield commented that Ringer was still on the Development Action Plan, "but based on present performance, I would recommend removal from current position."

 Merrifield told Ringer that he could no longer remain an account manager and suggested that Ringer seek a position elsewhere in the company. Ringer interviewed for, but did not obtain, a position in Union Pacific's customer service department in St. Louis. *fn7" He also interviewed for a prospective position in what was to be a new department--trans loading--but Union Pacific decided not to create that department. ...

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