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SAKELLARION v. JUDGE & DOLPH

July 18, 1995

ELAINE V. SAKELLARION, Plaintiff,
v.
JUDGE & DOLPH, LTD., and WIRTZ, CORP. a Delaware corporation, Defendants.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the motion for summary judgment of Defendants Judge & Dolph, Limited ("Judge & Dolph") and Wirtz Corporation ("Wirtz"). In the alternative, Wirtz moves to dismiss the complaint against it for failure to state a claim upon which relief can be granted. For the following reasons, the motion for summary judgment is granted. Wirtz's motion to dismiss is denied as moot.

 FACTS1

 Plaintiff Elaine Sakellarion ("Sakellarion") was an employee of Judge & Dolph from 1955 until she was discharged on January 10, 1994. She was sixty-two years old on the date of her discharge. Judge & Dolph is a wholesale distributor of wine and spirits located in Elk Grove Village, Illinois. Wirtz is the parent company of Judge & Dolph. Sakellarion alleges that she was terminated in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.

 Brenda Quigley ("Quigley") was Sakellarion's supervisor at Judge & Dolph from 1990 until she was discharged. According to Defendants, Sakellarion was terminated because of repeated absence from work, poor job performance, insubordination, and conduct which was disruptive to the efficient operation of the customer service department in which she worked. Sakellarion, on the other hand, asserts that she was an ideal employee who was singled out for termination merely because of her age.

 Defendants submit that, despite Sakellarion's long employment with Judge & Dolph, her job performance began to deteriorate over the last few years. In each of her last two years of employment, Sakellarion failed to report to work on a Monday six times. She did this notwithstanding that Mondays are especially busy days in the customer service department where she worked, and her absence made it extremely difficult to handle the work load. In addition, Defendants contend that she spent too much time talking on the telephone with family members, often arguing loudly with them and disrupting the other employees. She became increasingly contemptuous of directions from her supervisor. Defendants assert that after an incident in which she was insubordinate to her immediate supervisor and was given a written reprimand, she crumpled up the report in front of her supervisor and pretended to use it as toilet paper. She then threw the report in the waste basket.

 Because Sakellarion was frequently surly with customers who called into the customer service department, Judge & Dolph found it necessary to remove her from direct phone contact with customers. Additionally, her work in making record entries became so increasingly careless that a supervisor was required to review and approve all of her work before she was allowed to make any final record changes.

 Sakellarion was eligible for three weeks of paid vacation, two paid personal holidays, and seven paid sick days per year. Typically, Sakellarion would use her allotted sick days within the first two or three months of the year. Therefore, on many occasions when she would not come to work on a Monday, she would ask for the day to be marked as a vacation day or personal holiday. In 1992, in addition to the above listed paid vacation, personal holidays and sick days, Sakellarion took four unscheduled days off without pay and seven weeks off after she severed a fingertip in an accident. In 1993, in addition to the total paid days off, she took nine days of leave for a claimed broken foot.

 From January 1993 to January 1994, Sakellarion was absent from work for extended periods three times without having scheduled the absences in advance. On Monday February 22, 1993, she called in saying she would not be in that day or the following day, but would be at work on Wednesday February 24. She refused to discuss the reason for her absence. On Wednesday, she failed to return as promised, did not call, nor did she return or call on Thursday. The following Monday, when Sakellarion finally returned to work, she claimed she had taken the time off because she was depressed about the death of her daughter, which had occurred four or five years before.

 On Monday October 18, 1993, Sakellarion called in and said that she had injured her foot and would not be coming to work. On Monday October 25, 1993, Quigley called Sakellarion and Sakellarion informed Quigley that she was going to see her doctor about her foot and that she would call after her doctor's appointment to advise Quigley when she would return to work. Sakellarion did not call as promised; so Quigley was forced to call her. Sakellarion informed her that the doctor had rescheduled the appointment and promised again to call Quigley and inform her when Sakellarion would return to work. Again, Sakellarion failed to call in.

 When Sakellarion failed to report to work on Monday November 1, the third Monday in succession, Quigley learned from the payroll department that Sakellarion was on short-term disability status and, therefore, receiving full pay. However, Sakellarion, as a part-time employee, was not eligible for short-term disability. After learning that Sakellarion was receiving disability pay, Quigley telephoned Sakellarion on Tuesday November 2 and advised her that she was ineligible. Sakellarion returned to work the next day.

 On Monday January 3, 1994, Sakellarion called Quigley claiming that her thirty-six year-old daughter had been hospitalized with an asthma attack over the weekend. The daughter had been discharged from the hospital but required Sakellarion's assistance. Sakellarion requested that she be allowed to take Monday as her New Year's Day floating holiday. Despite that this was against company policy, Quigley granted the request. Sakellarion stated that she would also take Tuesday as a sick day to continue caring for her daughter, but that she would return to work on Wednesday January 5.

 Sakellarion did not return to work on January 5, and she did not return until Monday January 10. Quigley states that the standard procedure followed by her assistant supervisors, Karen Linderman ("Linderman") being one them, is that they must communicate to Quigley any requests from employees requesting time off from work. To her knowledge, Linderman always followed the procedure. During the days between January 5 and January 10, Linderman did not report any communications with Sakellarion regarding additional time off.

 Quigley contends that when Sakellarion returned on January 10, she stated that her daughter had not stayed with her during this period, but had stayed at her own apartment and that Sakellarion had only visited her daughter one day. After learning of this, Quigley terminated her because of this incident and repeated other incidents. Sakellarion has not been replaced.

 Naturally, Sakellarion's view of the world is quite different. She asserts that whenever she took time off, she arranged to do so weeks in advance. When she was ill, she always called in early in the morning and spoke with Quigley or Linderman. She contends that she did not take more personal calls than any of her co-workers, nor did she argue loudly on the phone with family members. Rather, Sakellarion contends that it was Quigley who argued constantly with family members on the telephone. Sakellarion insists that she was never insubordinate and denies that she crumpled up a written reprimand and pretended to use it as toilet paper. Sakellarion also notes that, ...


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