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Fuka v. Thomson Consumer Electronics

May 6, 1996

DOLORES J. FUKA, PLAINTIFF-APPELLANT,

v.

THOMSON CONSUMER ELECTRONICS, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 C 7754--Charles P. Kocoras, Judge.

Before POSNER, Chief Judge, and MANION and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

ARGUED SEPTEMBER 12, 1995

DECIDED MAY 6, 1996

In January 1992, Thomson Consumer Electronics ("Thomson") terminated Dolores J. Fuka's employment as a customer service representative ("CSR"). She responded with this lawsuit under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. secs. 621 et seq., alleging that her termination resulted from unlawful age discrimination. The district court entered summary judgment for Thomson, finding that Fuka had not presented any direct evidence of age discrimination, had not established that she was meeting Thomson's legitimate expectations at the time of her termination, and had not shown that the stated reason for her discharge was pretextual. In this appeal, Fuka challenges each of those conclusions, but we agree with the district court and therefore affirm its judgment.

I.

Fuka was hired as a CSR by a division of General Electric in November 1987. The following month, that division was purchased by Thomson, a consumer electronics manufacturer, which retained Fuka in her former position. At that time, Fuka was forty-six years old.

Fuka worked at Thomson's office in Oak Brook, Illinois, which housed the company's telemarketing and customer service functions. Thomson assigned to her a small work station equipped with a telephone and a computer. Fuka initially serviced international accounts, and she was primarily responsible for answering the telephone, accepting orders, and providing price, product availability, and order and account information to existing and prospective customers. As an international CSR, Fuka spent most of her work day on the telephone taking or following through on international orders. Between 1987 and 1991, Fuka was periodically reviewed by her supervisor George Silva, who generally rated her performance as "effective." In his written reviews for two of those years, however, Silva noted that Fuka's "attitude toward work" needed improvement.

In April 1991, Thomson transferred all of the international and some of the national accounts handled in Oak Brook to its Indianapolis office. Fuka and three other international CSRs were therefore reassigned to non-key domestic accounts. With Fuka's new assignment came a new supervisor, Kevin George, who like Silva reported to Mike Sparkman, manager of the Oak Brook office. Fuka's responsibilities remained essentially the same in her new assignment but with different accounts. Along with five other CSRs, Fuka now had responsibility for non-key accounts in New York, Boston, and Atlanta.

From the very beginning, Thomson had used its computer system to monitor incoming calls to its Oak Brook office and the availability of CSRs to answer those calls. Thomson's system also enabled management to determine how many incoming calls "abandoned" or went unanswered in a particular CSR group over a thirty-minute period. In 1991, Thomson obtained the capability to also monitor outgoing calls. In April or May of that year, George notified the CSRs in his group that he would begin distributing a monthly report of outgoing calls and that each CSR should identify personal calls included on the report. He indicated that as a guideline, personal calls should not exceed ten minutes in length except under extenuating circumstances. Fuka understood that the company's purpose in limiting the length of personal calls was to ensure that CSRs were available to answer incoming business calls. Fuka considered the ten-minute guideline to be a reasonable expectation.

For the first two months that Thomson monitored out-going calls, the monthly reports revealed that Fuka had made five personal calls exceeding ten minutes in April and nine such calls in May. Sometime in May or June, George expressed concern to Fuka about the length of some of her personal calls. George asked Fuka to keep those calls under ten minutes unless there were extenuating circumstances. Fuka explained to George that most of her personal calls were to her elderly mother, and George suggested that she call her mother more frequently but for only two to three minutes at a time. George and Fuka had a similar conversation near the end of June about the May telephone report, which showed that Fuka had made nine extended personal calls. These conversations had an impact, as the June report showed that Fuka had made only one extended personal call.

The monthly reports for July, August, and September, however, revealed that Fuka had made five, four, and then eleven extended calls in those months. In mid-November, George spoke to Fuka about the number of calls reflected on those reports. He indicated that Fuka was abusing her privilege to make personal calls from her work station, and Fuka responded that she would begin to make her personal calls from the pay phone down the hall. George purports to have told Fuka that this would only exacerbate the problem, but Fuka denies that George ever objected to her use of the pay phone. She acknowledges, however, that long personal calls, regardless of where they were made, would make her unavailable to answer business calls.

On December 23, 1991, George and Fuka met to discuss Fuka's year-end performance review. *fn1 George prepared that review, and Sparkman had already approved it. George rated Fuka's overall performance as "marginal," and he assigned to her the lowest possible rating in two categories--"budgets time effectively" and "displays a positive attitude toward work." In the "manager's comments and conclusions" section, George wrote the following:

Dee possesses superior skills necessary for the customer service position. However, Dee has chosen not to utilize these skills since moving over from International Customer Service. . . . Dee has a bad attitude much of the time. Pouts when she chooses not to participate. Is a chronic complainer and is a disruptive element in the work area. Since May I have discussed her ABUSE regarding the length of personal phone calls. No improvement noted. She apparently has no regard for her supervisor's wishes. . . . She auxes out [deactivates her telephone] for long periods ...


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