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Finger v. Orkin

January 15, 2009

LINDA L. FINGER, PLAINTIFF/COUNTER-DEFENDANT,
v.
ORKIN, INC. D/B/A ORKIN PEST CONTROL, DEFENDANT/COUNTER-PLAINTIFF.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Plaintiff Linda L. Finger (hereinafter, "Finger") brings this action against Defendant Orkin, Inc. (hereinafter, "Orkin") under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621(e) et seq. (the "ADEA"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. ("Title VII"). In her Complaint, Finger seeks to hold Orkin, her former employer, liable for age discrimination, sex discrimination, and two counts of retaliation. Orkin now moves for summary judgment on all counts, and also moves to strike certain portions of Finger's responses. For the following reasons, the Motion to Strike is granted in part and denied in part, and the Motion for Summary Judgment is granted.

I. BACKGROUND

Orkin provides pest control services for residential and commercial customers. Finger was employed by Orkin from 1995 until 2000 and again from 2002 through early 2006 as a Branch Manager in Colorado, Oregon, Utah, and Pennsylvania. Def.'s Statement of Facts ("Def.'s SOF") ¶¶ 1-9. In February 2006, Finger transferred to the Illinois Region and became the Branch Manager of Orkin's Oak Park, Illinois branch (the "Oak Park Branch"). Finger's date of birth is July 22, 1943. At all times relevant to her Complaint, Finger was the Branch Manager of the Oak Park Branch, and Tiziano Del Guanto ("Del Guanto"), Region Manager for the Illinois Region, was her direct supervisor. Finger was employed as Branch Manager of the Oak Park Branch from February 2006 until September 2007. Between February 2006 and May 2007, four Oak Park Branch employees resigned, and one employee voluntarily transferred. Id. at ¶¶ 10-19, 48. During the same time period, a combined total of four employees quit or were terminated in the rest of the Illinois region (13 other branches). Id. at ¶ 48. Between May 2007 and August 21, 2007, the Oak Park Branch lost two additional employees. Peura Decl. ¶¶ 14-15. Del Guanto and his assistant, Robbie Peura ("Peura"), addressed the turnover at the Oak Park Branch, along with other managerial issues, with Finger on multiple occasions both in person and in written reports. See, e.g., May 2007 Coaching & Counseling Mem. (Del Guanto Decl. Ex. 1); August 2007 Follow-Up Mem. (Pl.'s July 25, 2008 Dep. Ex. 29).

In addition to addressing personnel issues, Del Guanto prepares annual written performance evaluations and meets with branch managers to review the evaluations. Def.'s SOF ¶ 32. In April 2007, Del Guanto prepared Finger's evaluation for the Year 2006, and Finger received a pay raise of 3.49 percent. Id. at ¶¶ 33-35; Pl.'s July 8, 2008 Dep. 208-209. However, Del Guanto forgot to review the Year 2006 evaluation with Finger, and Finger did not remind him. Id. During this review period, Del Guanto also did not meet with at least one other branch manager. Del Guanto Suppl. Decl. ¶ 3.

In a May 2007 written Coaching and Counseling Memorandum, Del Guanto addressed the turnover at the Oak Park Branch and nine other managerial problems which he requested that Finger correct. See Del Guanto Decl. ¶¶ 19-22; Del Guanto Decl. Ex. 1. Among other issues, Finger was reprimanded for permitting subordinates to direct the work of other employees and for allowing them to work on tasks specifically assigned to her by Del Guanto. The Memorandum stated that Finger failed to account for absent employees and to complete new hire paperwork. Del Guanto also noted that Finger had not provided factual responses when questioned about the above issues. Del Guanto and Finger discussed the Coaching and Counseling Memorandum at a meeting on May 20, 2007 and finished their discussions on June 4, 2007.

On May 31, 2007, the day after she received the Coaching and Counseling Memorandum, Finger contacted Orkin's Human Resources Department and told Mark Kraus ("Kraus") that Del Guanto had not reviewed her Year 2006 performance evaluation with her, which she believed showed that Del Guanto was treating her differently from other branch managers. Def.'s SOF ¶ 53; Pl.'s July 8, 2008 Dep. 164-174. Kraus said that he was busy with an urgent situation and that he would call Finger later that week. Before she heard back from Kraus, on June 5, 2007, Finger e-mailed Vye Ladd ("Ladd"), Vice President of Human Resources, regarding her May 31 complaint to Kraus. The same day, Kraus called Finger and suggested that she could transfer to another branch, an option she subsequently declined. Ladd also responded to Finger's e-mail to confirm her communications with Kraus. Def.'s SOF ¶¶ 55-58.

On June 7, 2007, Kraus, Finger, and Del Guanto met to review the Coaching and Counseling Memorandum and to discuss Finger's complaint that Del Guanto had not met with her to review her Year 2006 evaluation. Id. at ¶¶ 59-60. At the end of the meeting, Finger and Del Guanto told Kraus that they were willing to work on their communication. Later in June 2007, Human Resources Representatives Ladd and Kraus again met with Finger at the Oak Park Branch. At this time, Finger did not discuss any complaints regarding Del Guanto. Pl.'s July 8, 2008 Dep. 213-218.

On June 8, 2007, Finger filed a Charge of Discrimination with the Equal Employment Opportunity Commission (the "EEOC"), alleging that she suffered discrimination on the basis of her sex and age and that she was retaliated against by being subjected to different terms and conditions of employment and by being disciplined on June 4, 2007. Def.'s SOF ¶ 61. The Court presumes that Finger's retaliation claim is based on her allegation that Del Guanto made wrongful accusations about her managerial performance during the second meeting to discuss the Coaching and Counseling Memorandum on June 4, 2007. See id. at ¶¶ 54, 61; Pl.'s Statement of Facts ¶ 17. This meeting was held after Finger's initial complaint about Del Guanto to Human Resources on May 31.

On August 21, 2007, Del Guanto and Finger met to discuss Finger's progress correcting the issues outlined in the May 2007 Coaching and Counseling Memorandum. See Def.'s SOF at ¶¶ 64-67; Pl.'s July 25, 2008 Dep. Ex. 29. During this meeting and in a written follow-up memorandum, Del Guanto informed Finger that she had improved in five of the nine problem areas and that she had until the end of September 2007 to correct the remaining performance issues. During this meeting, Del Guanto also reviewed Finger's Year 2006 performance evaluation.

On August 23, 2007, Finger called in sick and did not return to work at Orkin. Def.'s SOF ¶ 68. Finger resigned on September 4, 2007. Id. at ¶ 69. Two days later, Orkin sent Finger a letter requesting that she rescind her resignation and accept an unconditional offer to return to work as Branch Manager of the Oak Park Branch, an offer which Finger declined. Id. at ¶ 70.

On September 13, 2008, Finger filed a second Charge with the EEOC, alleging that she was constructively discharged in retaliation for engaging in protected activity. Id. at ¶ 71.

II. ANALYSIS

A. Motion to Strike

Orkin moves to strike numerous paragraphs in Finger's response to its statement of facts on the grounds that they are unresponsive, conclusory, unsupported by admissible evidence, or contradicted by deposition testimony. Responses that avoid the actual statement presented, or provide a kind of "yes, but" explanation, are impermissible under Local Rule 56.1(b). See Flores v. Chicago Transit Authority, No. 5 C 6503, 2006 WL 2868904, *1 (N.D.Ill., Oct. 4, 2006). Likewise, unresponsive ...


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