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SCHULZ v. VARIAN MEDICAL SYSTEMS

April 16, 2004.

JOHN JOSEPH SCHULZ, Plaintiff,
v.
VARIAN MEDICAL SYSTEMS, INC., Defendant



The opinion of the court was delivered by: RUBEN CASTILLO, District Judge

MEMORANDUM OPINION AND ORDER

John Joseph Schulz ("Schulz.") sued Varian Medical Systems, Inc. ("Varian") claiming discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-34. Schulz brings both a wrongful termination claim under 29 U.S.C. § 623(a) and a retaliation claim under 29 U.S.C. § 62 3(d). Varian now moves for summary judgment on both claims. For the reasons set forth below, the Court grants Varian's Motion for Summary Judgment. (R. 15-1.)

RELEVANT FACTS*fn1

  Varian manufactures linear accelerators and ancillary equipment used with linear accelerators. (R. 16, Def.'s Facts, ¶ 5.) Varian also has a customer support organization that provides services and repairs to this equipment, (Id. ¶ 7.) Schulz began working for Varian in December 1985 as an entry level Customer Service Representative and he was promoted to the second level of Customer Service Representative in March 1990, (Id. ¶ 13.) In approximately 1989, the Order of the Sisters of St. Francis ("OSF"), a large hospital located in Peoria, Illinois, bought equipment from Varian and entered into a service contract with Varian, (Id. ¶ 14.) As a result of the large amount of revenue that would be generated by this service contract, Varian created a full-time position for a single service representative in the central Illinois (Peoria) area. (Id. ¶ 15.) Schulz applied for this position, received it, and began work in July 1990. (Id. ¶¶ 16, 17.)

  From July 1990 through December 2001, Schulz worked in the central Illinois area, under the supervision of Tom Mirocha ("Mirocha"). (Id. ¶ 18.) Schulz was the primary Varian representative for servicing OSF machines at this time and thus was required to reside in central Illinois, even though he reported to Variants Des Flames office, (Id. ¶ 18.) In 1994 Schulz was promoted to Senior Service Representative. (Id. ¶ 19.)

  Beginning in early 2000 and up to his termination on October 15, 2002, Schulz received several documented disciplinary actions. On February 28, 2000, Schulz received a documented verbal warning from Mirocha for failing to perform mandatory scheduled service on customer machines in a timely manner and for failing to complete field service reports. (R. 20, Pl's Facts, ¶ 21.) Additionally, in July 2001, Schulz received a second documented verbal warning from Mirocha for the same reasons. (Id. ¶ 22.)

  In late 2001, Varian's contract with OSF expired.*fn2 (R. 16, Def.'s Facts, ¶ 26.) Around this time Varian underwent a district realignment, and Ferd Weinhammer ("Weinhammer") became Schulz's new supervisor. (Id. ¶¶ 27, 28.) Because there no longer was a position in central Illinois, Weinhammer and his supervisor, Regional Manager Wayne Walker ("Walker"), decided to offer Schulz an open position in the Chicago area. (Id. ¶¶ 30, 34, 35.) Sometime before February 16, 2002, Weinhammer told Schulz that he would have to relocate his residence to Joliet if he wished to have this position and retain his employment with Varian. (Id. ¶ 37.)

  On February 16, 2002, Weinhammer gave Schulz a memo entitled "Relocation to the Chicago Area," which informed Schulz that he had to relocate to the Joliet area by June 1, 2002, (Id. ¶ 38.) On March 27, 2002, Weinhammer sent Schulz an e-mail asking him to send the signed relocation agreement by overnight delivery. (Id. ¶ 40.) Around April 2, 2002, Schulz informed Weinhammer that lie would undergo sonic medical tests on April 4, 2002, (Id. ¶ 41.) On April 4, 2002, Weinhammer requested that Schulz sign the relocation agreement and send it to him immediately. (Id. ¶ 41.) On April 5, 2002, after still not receiving the relocation agreement, Weinhammer issued a verbal warning to Schulz for insubordination as a result of Schulz's failure to submit the relocation agreement. (Id. ¶ 43.) Schulz never submitted a signed copy of the relocation agreement. (Id. ¶ 46.)

  On April 8, 2002, Weinhammer sent Schulz a memo entitled "Relocation Confirmation" reiterating that Schulz needed to move by June 1, 2002. (Id. ¶ 47.) Schulz did not relocate by June 1, 2002; in fact, he spent June 1, 2002, and the following two weeks on vacation in Colorado. (Id. ¶¶ 48, 49.) Subsequently, Weinhammer sent Schulz a memo entitled "Relocation Final Notice," informing him that he had to move by August 10, 2002 and that his failure to relocate by then "[would] result in action by Varian which may or may not be agreeable to you-" (R. 20, Pl.'s Facts, ¶ 50.) On August 9, 2002, Schulz informed Varian that he had a "proposed address" at an apartment in Joliet; as of this date he had paid his August rent hut had not yet moved. (Id. ¶¶ 51, 52.)

  Additionally, on July 9, 2002 Schulz, received a written warning for his failure to communicate with Variants dispatch, (Id. ¶ 55.) Dispatch is a centralized system designed to distribute calls from customers to service representatives. (R. 16, Def.'s Facts, ¶ 56.) In order to do this efficiently, dispatch needs to know the location of Varian's customer service representatives. (Id.) Thus, all service representatives are required to update dispatch when they move locations or experience a change in status. (Id.)

  On September 18, 2002 Schulz was placed on thirty days probation for failing to call Team Leader Barry Lemcke ("Lemcke") prior to 8:30 a.m. each day and for exercising poor judgment in informing a customer that he could not service its machine because his car was being serviced, (Id. ¶ 57.) Varian informed Schulz that while on probation he had to successfully perform all aspects of his job or he could be terminated, (Id. ¶ 64.) Thereafter, Weinhammer informed Walker and Varian's human resources managers of Schulz's continued performance deficiencies while on probation, (Id. ¶¶ 65, 66.) On October 15, 2002 Schulz was terminated for violating his probation. (Id. ¶¶ 66, 68.)

  Varian has a fair treatment policy that states that an employee "has the right to request that the issue be reviewed through the Fair Treatment Process." (R, 20, Pl's Facts, ¶ 72.) This policy was made available to all Varian employees in 2002. (R. 16, Def.'s Facts, ¶ 73.) The policy provides that an employee should first seek to resolve a work-related problem through discussion with his immediate supervisor and a human resources representative, (Id. ¶ 74.) If this does not lead to a solution, then the employee should bring the problem to the next higher level of management.*fn3 (Id.)

  On October 1, 2002, Schulz spoke with Keith Krugman ("Krugman"), Varian's Vice President of Oncology Systems. (R, 20, Pl.'s Facts, ¶ 76.) Schulz never told Krugman that he thought he was being treated differently because of his age, although Schulz did tell Krugman that Schulz was being subjected to different standards than his colleagues. (Id.) Subsequently, on October 3, 2002, Schulz spoke with Doug Cook ("Cook"), Varian's National Service Manager. (Id. ¶ 80.) Schulz never told Krugman he thought he was being treated differently because of his age. (Id.) "In fact, from September 16, 2002, until October 15, 2002 (his termination date), he never told anyone that he thought he was being treated differently because of his age. (Id. ¶ 81.)

  For each of the disciplinary actions taken against Schulz, he either offers reasons as to why the discipline was unfairly imposed or attempts to explain away the reason. With respect to the February 28, 2000 documented verbal warning, Schulz. points out that in 2000 he had an average score on customer satisfaction surveys of 92%, and that based on his 2000 performance he received a 4.18% merit increase from Mirocha. (Id. ¶¶ 20, 21.) He also contends that he consistently left the required documentation, and that by February 2002 Mirocha acknowledged that any issues with Schulz failing to perform mandatory scheduled service in a timely manner had been resolved. (Id. ¶ 21.) Schulz. disputes the July 2001 documented verbal warning by asserting that he left all necessary documentation on-site and that he performed mandatory scheduled service in a timely manner, unless he was required to assist other service representatives outside of his primary region, (Id. ¶ 22.) He also notes that he received a 3.5% merit-based pay increase based on his performance in 2001 and that he had a 93% customer satisfaction rating at that time. (Id. ¶ 22.)

  Concerning the verbal warning for insubordination, Schulz maintains that when he received the relocation agreement, Weinhammer told him they would meet to sign it after he had reviewed it and considered its terms. (Id. ¶ 39.) Schulz claims that he did not immediately send the relocation agreement back to Weinhammer because: (1) he believed they needed to more fully discuss its terms; (2) he was working at least eleven hours per day servicing an Iowa customer; and (3) he experienced chest pains that required him to take time off beginning April 3, 2002. (Id. ¶ 40.) Furthermore, according to Schulz, after he explained his medical situation on April 2, 2002, Weinhammer told him that he should "not worry about the relocation letter" and mat he should focus on his health first. (Id. ¶ 41.) Schulz also claims that his medical condition prevented him from returning the relocation agreement on April 4, 2002. (Id. ¶ 42.) Finally, Schulz asserts that Weinhammer, by issuing him this warning, discriminated against him because of his age. (Id. ¶ 43.)

  Schulz explains his failure to move to the Joliet. area by June 1, 2002 by noting that from April 8, 2002 until May 31, 2002 he was servicing customers in excess of forty hours per week. (Id. ¶ 48.) He also argues that while he may not have moved by August 9, 2002, Walker allowed him to have more than one residence as long as he was present in the newer territory during times required for servicing customers. (Id. ¶ 52.) Schulz disputes the underlying reason for his July 9, 2002 written warning for failure to communicate with dispatch on July 2, 2002. lie claims that when he received the call from dispatch, he went straight to the customer's site. (Id. ¶ 55.)

  Schulz also disputes the reasons he was placed on probation. He claims that there was confusion as to what time he was supposed to contact Lemcke. Prior to April 16, 2002 he was told to contact Lemcke by 9:30 a.m. and was also told there was no firm deadline. (Id. ¶ 59.) He further claims that on April 16, 2002 Lemcke sent Schulz an e-mail telling him to contact Lemcke no later than 8:45 a.m. every day and that on September 12, 2002, Lemcke sent him an e-mail stating, "I am reminding you again that 1 need an update of you're [sic] status no later than 08:30 am." (Id. ¶ 59.) Schulz maintains that from September 16, 2002 until his termination he called Lemcke each workday by 8:30 a.m. (Id. ¶ 61.)

  Schulz was also placed on probation for exercising poor judgment in informing a customer he could not service its machine because his car was being serviced, (R. 16, Def.'s Facts, ¶ 62.) Weinhammer's district guidelines require that when a service representative is on duty and his company vehicle is unavailable, the service representative needs to maintain other arrangements, such as renting a car or using his own personal vehicle. (Id. ¶ 62.) Schulz claims that these guidelines did not apply in this instance, (R. 20, Pl.'s Facts, ¶ 62.) He notes that Varian does not have a written policy stating when vehicles may be serviced and that it is possible for a service representative to repair his vehicle on company time. (Id.) Finally, Schulz states that he brought his vehicle into service beginning at 7 a.m. and informed the customer he could not respond immediately. (Id. ¶ 63.) After the customer spoke with him and Lemcke, the problem was resolved by 8:30 a.m. (Id.) His vehicle was repaired by 9:45 a.m., and he visited the customer later that day to prevent further problems. (Id.)

  Varian stresses three distinct actions by Schulz that violated his probation, (R. 16, Def.'s Facts, ¶ 65.) First, Varian claims that Schulz refused to cross-train another service representative. (Id.) Schulz. claims that this representative, John Kraciun ("Kraciun"), was in California and that Schulz was never informed when Kraciun returned. (R. 20, Pl.'s Facts, ¶ 65.) Second, Varian claims that Schulz, refused to follow basic trouble-shooting steps in servicing a customer's machine leading to the customer's dissatisfaction. (R. 16, Def.'s Facts, ¶ 65.) Schulz claims that he requested a technical specialist's help which was necessary to address the problem, but that Weinhammer initially cancelled this assistance. (R. 20, Pl.'s Facts, ¶ 65.) Third, Varian claims that Schulz failed to set up voice mail on his home and cellular telephones in a timely manner so that he could be reached. (R. 16, Def.'s Facts, ¶ 65.) Schulz claims that he has was told this at 9:00 a.m. on September 30, 2002, and that his voice mail was operational by 6:45 p.m. the same day. (R. 20, Pl.'s Facts, ¶ 65.) Schulz claims that at this time he was working in a facility that did not allow cellular telephone transmissions and did not provide him with a land line. (Id.)

  Finally, Schulz maintains that on September 20, 2002, Lemcke informed him that after Varian lost the OSF account Weinhammer and Walker wanted him replaced with somebody younger who they could mold to their desires. (R-20, Pl.'s Facts, ¶ 70.) Schulz also maintains that Weinhammer knew that he had spoken with Krugman on October 1, 2002, before the decision to terminate him was made. (Id. ¶ 78.) LEGAL STANDARDS

  Summary judgment is appropriate only when the record, viewed in the light most favorable to the non-moving party shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a. matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Self-serving assertions, without factual support in the record, cannot he used to defeat a motion for summary judgment. Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 941-42 (7th Cir. 1997). Instead, the party opposing summary judgment must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Andersen v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The role of the Court is to determine "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. ...


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