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RAGLAND v. ROCK-TENN CO.

March 14, 1997

WANDA RAGLAND, Plaintiff,
v.
ROCK-TENN COMPANY and CAROL D'ANDREA, Defendants.



The opinion of the court was delivered by: CASTILLO

 Plaintiff Wanda Ragland filed suit in this Court alleging that her former employer, Rock-Tenn Company, and former supervisor, Carol D'Andrea, discriminated against her on the basis of age. Ragland contends that she was meeting Rock-Tenn's legitimate expectations in her capacity as a customer service representative; but nevertheless, the company terminated her after just eight months in that position and replaced Ragland with someone many years her junior. Having allegedly received no complaints until she was fired, and upon discovering Rock-Tenn's alleged attempt to prompt the resignation of a fifty-year-old co-worker, Ragland concluded that age was behind her discharge. After receiving a Notice of Right to Sue from the EEOC, she proceeded to file a three-count complaint: Count I claims that Ragland's termination violated the Age Discrimination in Employment Act, 20 U.S.C. §§ 621 et seq. ; Count II alleges that her dismissal breached a contract for continued employment; and Count III claims Ragland was defamed by statements that Rock-Tenn management made following her termination. Defendants Rock-Tenn and Carol D'Andrea vigorously deny these charges, and have moved for summary judgment on all counts.

 RELEVANT FACTS

 According to Ragland, one of her superiors at the Hillside office suggested that she contact Carol D'Andrea, the Customer Service Manager at the Chicago Plastics Division, because "Rock-Tenn did not want to lose someone with her performance level." Pl.'s Facts P 6. Ragland called D'Andrea, who agreed to interview Ragland for a position in customer service. Pl.'s Add'l Facts P 11; Defs.' Facts P 7. The substance of that interview is hotly disputed. Ragland claims that D'Andrea never disclosed the specific attributes of the position, revealing only that she would begin by billing and invoicing on customers' accounts receivable, then move on to "perform the duties of a customer service representative." Pl.'s Facts P 7; Pl.'s Add'l Facts PP 9-10. In particular, D'Andrea never told Ragland that she would be expected to answer phones as part of the job. Pl.'s Facts P 7. Defendants, however, maintain that D'Andrea detailed Rock-Tenn's expectations, explaining that Ragland would first be trained in invoicing, then taught more advanced accounts receivable functions, and finally receive customer service training. Defs.' Facts P 7. The defendants also claim that D'Andrea made clear that, as a customer service representative, Ragland would need to answer phones. Id.

 D'Andrea hired Ragland, at age fifty, for the customer service position in Franklin Park. Defs.' Facts P 7. She began work in January 1993, but retained, for seniority purposes, her original 1988 date of hire. Id. PP. 7, 10. Once in Franklin Park, Ragland worked under the supervision of D'Andrea, who in turn reported to Dick Korff, the office's General Manager. Defs.' Facts P 10. From the beginning of her tenure at Franklin Park, Ragland claims she performed both the invoicing and customer service functions. Pl.'s Add'l Facts P 12. Indeed, she was trained in both. Ragland Dep. pp. 24-25. Although Ragland's responsibilities had diminished from her days at the Hillside office to the point where she was primarily "doing billing and invoicing," Ragland also answered phones along with the rest of the customer service employees. Pl's Add'l Facts PP 11, 15.

 The point where the parties diverge most sharply is on the quality of Ragland's performance at Franklin Park. By Ragland's account, it was smooth, practically without incident. Defendants, on the other hand, claim that Ragland's employment was marked by numerous failings. The problems, defendants say, began with Ragland's work hours. It is undisputed that, in May 1993, Ragland requested to work on a flex schedule, from 10:00 a.m. to 7:00 p.m., in order to facilitate her commute to and from work. Defs.' Facts P 11. D'Andrea permitted the change in hours because, she says, Ragland had made a habit of coming in late. Defs.' Resp. Add'l Facts P 19. Nevertheless, all the other customer service representatives were required to be in the office from 8:00 a.m. to 5:00 p.m. because that was the time frame during which customers would call to place or confirm orders. Defs.' Facts P 11. Ragland's absence during the peak hours of 8:00 a.m. to 10:00 a.m. was problematic because it imposed Ragland's share of the work on the other employees. Id. P 12. Ragland's peers felt, as a result, that she was being singled out for favorable treatment, and they registered their dissatisfaction with D'Andrea. Id. ; Nancy Dahl Aff. P 4; Lilly Gandar Aff. P 2.

 Defendants also maintain that Ragland's tardiness continued on the revised schedule. Defs.' Resp. Add'l Facts PP 22-23. D'Andrea says she constantly reprimanded Ragland for arriving late and leaving early. Id. P 19. To support their allegations of tardiness, defendants present no documentary evidence, but rely on affidavits executed by several Rock-Tenn employees. See Defs.' Facts Exs. A-G.

 Ragland's response to these claims is threefold: the flex schedule was not a function of tardiness; it did not result in complaints or extra work for others; and the eight to five schedule was not set in stone. First, while Ragland admits that she worked from ten to seven by request, she attributes the altered schedule to the fact that she had been arriving at eight and staying until six or seven to avoid rush-hour traffic. Pl.'s Add'l Facts P 20. She denies that she was tardy on either schedule, or that she ever left early. Id. PP 45, 60; Ragland Aff. PP 20h.-j. Second, Ragland claims that her schedule never inconvenienced other employees or provoked their complaints. Pl.'s Add'l Facts PP 19, 22, 23, 33. She insists that her co-workers did not have to pick up the slack caused by her absence from eight to ten and that the customer service department would have functioned just as well if no representatives began work until 10 a.m. Id. PP 27, 34. In addition, Ragland claims that no one could have registered complaints with D'Andrea about her flex schedule because Ragland was not informed of them. Pl's. Facts P 12. In fact, other employees benefitted from her later hours: Lilly Gandar called in one evening after five to check on a lost item, and told Ragland she was glad Ragland was there; Richard Korff regularly phoned between five and seven to discuss business matters. Id. PP 31-32.

 Ragland's third response to defendants' tardiness allegations is that an eight to five schedule was not crucial to Rock-Tenn's operation. She maintains that the phones continued ringing past five and were not, as defendants claim, routed to an answering machine. Id. P 11. Moreover, Maria Maniak, a younger employee who Ragland says worked full time as a customer service representative, was permitted to arrive after eight and leave before five -- a schedule even more liberal than Ragland's. Id. P 12. Defendants, however, state that Maniak worked in inventory control, not customer service, and, as such, did not have to be around during business hours to answer phones. Defs.' Facts P 12 n.1 ; Defs.' Resp. Add'l Facts P 24. Ragland supports each of these conclusions with her own deposition and affidavit, but offers no corroborating documentary evidence or testimony from other employees.

 Besides Ragland's alleged tardiness and troublesome schedule, defendants specify two performance problems that led to her discharge. Defendants claim that Ragland practiced poor phone etiquette and could not fulfill many of the functions she was hired to perform. They cite examples of each deficiency. In February 1993, D'Andrea asked Ragland to increase her work pace because she was able to perform only the invoicing part of her job, leaving D'Andrea to assume several of Ragland's accounts receivable and customer service duties. Defs.' Facts P 13. Ragland denies that her capabilities were so limited or that D'Andrea complained about them. Pl.'s Add'l Facts P 13. In May 1993, D'Andrea counseled Ragland for failing to log customer invoices on a timely basis. Defs.' Resp. Add'l Facts P 18. Specifically, she told Ragland that credits should be recorded immediately and that customers complained when they were not credited promptly. Id. P 66. Ragland admits that D'Andrea counseled her about logging and credits, but states that D'Andrea's comments were meant to educate Ragland about a new procedure, not criticize her performance. Pl.'s Add'l Facts P 18. Ragland also denies that D'Andrea raised timeliness concerns. Id. PP 66-67.

 With respect to Ragland's telephone conduct, defendants claim that Ragland initially refused to answer the phones, and when she did begin taking calls, she behaved poorly. Dick Korff testified that Ragland consistently relayed names incorrectly when transferring calls and taking messages. Defs.' Resp. Add'l Facts P 79. Korff discussed this with D'Andrea, but mentioned nothing to Ragland. Id. Terrence Dane, one of Rock-Tenn's national account managers, testified that he received numerous complaints from customers objecting to Ragland's rude telephone manners. Id. P 77. He, like Korff, went straight to D'Andrea instead of telling Ragland he was dissatisfied. Id. D'Andrea, however, claims that she brought these complaints to Ragland's attention as early as March 1993, when she counseled Ragland about her phone manners and efficiency. Id. P 16. In response, Ragland admits that, on one occasion, she mispronounced the name of a doctor who was treating Korff's wife in the hospital, but asserts that Korff himself would have fared no better with the name. Pl.'s Add'l Facts P 79. She disputes Dane's allegations of discourteousness with the fact that Dane joined the company just one month before Ragland's termination, and therefore lacked a stable of customers who could have complained about her. Id. P 77. Finally, Ragland denies that D'Andrea ever told her that answering the phones was a job requirement for customer service, or talked to Ragland about deficient phone skills before she was fired. Id. PP 14, 16-17.

 In light of these alleged shortcomings, D'Andrea and Korff did not believe that Ragland was performing up to Rock-Tenn's standards. Defs.' Resp. Add'l Facts P 54. Although neither one documented Ragland's poor performance, D'Andrea says she counseled Ragland about tardiness and performance problems on "numerous occasions," and that she discussed Ragland's failings with Korff regularly. Id. P 42; Defs.' Facts P 16. Ragland responds that, on the contrary, her work was professional and satisfied Rock-Tenn's legitimate expectations. Ragland Aff. P 6. She denies that she was ever tardy or had performance problems. Id. P 21.d. Moreover, no one ever told her that she needed to improve in these areas. Pl.'s Add'l Facts P 42.

 To prove her competence, Ragland relies on examples of co-workers' and a customer's general satisfaction. In June 1993, Ragland claims that James Jackson, a senior Rock-Tenn salesman, orally rated her performance "great." Ragland Aff. P 2. Between February and August, representatives of Baxter Co., the client with whom she had the most contact, told Ragland she was doing a "good job" on their account. Id. P 3. And in March 1993, one of Ragland's fellow customer service representatives, Lilly Gandar, told a vacationing D'Andrea that Ragland "was in control of the office and doing a good job." Id. P 16. The sole source of this information is Ragland's affidavit; she did not submit testimony or affidavits from Jackson or from Baxter Co. representatives. Gandar's affidavit, provided by defendants, mentions only that Ragland's performance was sub-par. See Gandar Aff. PP 2-3.

 On August 24, 1993, just eight months after Ragland began working at the Franklin Park Office, Korff, D'Andrea, and Rock-Tenn's Human Resources Manager collectively decided to terminate Ragland. Defs.' Facts P 17. D'Andrea told Ragland that she was being discharged for the following reasons: 1) despite her flexible hours, Ragland continued to arrive late for work; 2) D'Andrea had received several complaints about Ragland's phone skills and manners; and 3) D'Andrea needed someone who could do "more" in the position. Id. Defendants claim that D'Andrea also gave as a reason for termination co-worker resentment over Ragland's flex schedule, but Ragland denies hearing this. Pl.'s Facts P 17(1). As for the remaining justifications, they were news to Ragland. She testified that none of these concerns had previously been brought to her attention. Id. PP 14, 17. Furthermore, they were simply false. Id. P 17. According to Ragland, D'Andrea offered two additional grounds for termination: Ragland's lack of seniority and her inability to "fit in." Pl.'s Add'l Facts P 37. D'Andrea denies resting Ragland's discharge on either seniority (she points out that retaining her original date of hire rendered Ragland the most senior employee in the department) or failing to fit in.

 What the parties do not dispute is that no one at Rock-Tenn, including D'Andrea, indicated that age was a factor in Ragland's dismissal or ever commented overtly on Ragland's age. Pl.'s Facts P 18. Ragland therefore offers some alternative theories to support her claim of age discrimination. She first points to the fact that she was replaced by someone much younger -- a woman named Donna Ball, who had served as an attendant in D'Andrea's wedding. Pl.'s Add'l Facts PP 46, 73. Id. P 73. But Ball also had worked with D'Andrea for three years before D'Andrea departed for Rock-Tenn, so D'Andrea was familiar with Ball's abilities, which included experience in customer service. Defs.' Facts P 19. The second alleged indication of discrimination is that Maria Maniak, a younger employee, was permitted to arrive after 8:00 a.m. and leave before 5:00 p.m. without repercussion. Pl.'s Facts P 72. Third, following Ragland's termination, Nancy Dahl, the only other customer service representative over forty, told Ragland that she had been asked to resign. Id. P 47. But Dahl never resigned; rather, she was promoted to Personnel Coordinator in early 1995. Defs.' Resp. Add'l Facts P 47. Finally, Ragland interprets D'Andrea's statement about "fitting in" to mean that she was fired for being older than her co-workers. Pl.'s Add'l Facts P 64. When considered with the facts that Ragland had never been reprimanded for poor performance or tardiness, verbally or in writing, the only plausible explanation for her discharge, she claims, is age.

 SUMMARY JUDGMENT STANDARDS

 Summary judgment is proper when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue for trial exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). When ruling on a motion for summary judgment, the court must view all evidence in a light most favorable to the nonmoving party, and draw all inferences in the nonmovant's favor. Wolf v. Buss America, Inc., 77 F.3d 914, 918 (7th Cir. 1996); Taylor v. Canteen Corp., 69 F.3d 773, 779 (7th Cir. 1995). However, if the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50; Unterreiner v. Volkswagen, Inc., 8 F.3d 1206, 1212 (7th Cir. 1993).

 In ascertaining whether a genuine issue exists, the court must "view the evidence presented through the prism of the substantive evidentiary burden." Liberty Lobby, 477 U.S. at 254. If the record taken as a whole could not lead a trier of fact to find for the non-moving party, there is no 'genuine' issue for trial." Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). In making its determination, the court's sole function is to decide whether sufficient evidence exists to support a verdict in the nonmovant's favor. Credibility determinations, weighing evidence, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255. In an employment discrimination suit, where credibility and intent are pivotal issues, these standards apply with added rigor. Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994).

 ANALYSIS

 A. Legal Standards Applicable to Age Discrimination Claims

 The ADEA prohibits employers from discriminating against employees between forty and seventy years old on the basis of age. 29 U.S.C. §§ 621(b), 631(a). To prevail on a discriminatory termination claim under the ADEA, the plaintiff ultimately bears the burden of proving, by a preponderance of the evidence, that she would not have been discharged "but for the employer's motive to discriminate against [her] because of [her] age." Denisi v. Dominick's Finer Foods, Inc., 99 F.3d 860, 864 (7th Cir. 1996) (citing Weisbrot v. Medical College of Wisconsin, 79 F.3d 677, 680 (7th Cir. 1996)). She can meet this burden by presenting either direct or circumstantial evidence of discriminatory intent. Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). The most common method of proving employment discrimination ...


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