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Jeff T. Pagel v. Tin Inc

June 2, 2011


The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge


Thursday, 02 June, 2011 10:14:55 AM

Clerk, U.S. District Court, ILCD


This case arises under the Family and Medical Leave Act of 1993 (FMLA),29 U.S.C. §§ 2601-54. The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Pending before the Court is the Defendant's Motion for Summary Judgment (Doc.50). For the following reasons, Defendant's Motion for Summary Judgment is GRANTED.


The Defendant, TIN Inc., is a Delaware corporation engaged in the business of manufacturing and distributing corrugated paperboard and packaging products and doing business in Illinois. (Doc. 51 at 3). The Plaintiff, Jeff Pagel, is a former employee of TIN who was fired from TIN on October 4, 2006. (Doc. 51 at 2, 22).

Prior to his termination, Pagel had worked for TIN since May of 2000 as a sales account manager, which is the functional equivalent of a salesman. (Doc. 51 at 3; Doc. 52-3 at 5). Beginning January 1, 2006,*fn2 Pagel began reporting to Scott Kremer, sales manager of TIN's Crawfordsville, Indiana and St. Louis, Missouri facilities. (Doc. 51 at 4). At this time, Pagel's sales territory was Central Illinois and Western Indiana and his base salary plus commissions netted him an annual income of approximately $180,000.00. (Doc. 51 at 4; Doc. 54-16). Additional benefits which Pagel received included the exclusive use of a company car, a Blackberry mobile device and a laptop computer. (Doc. 54-1, Doc. 54-4, Doc. 52-3 at 14). At the time that Kremer assumed supervisory responsibility over Pagel, there is no evidence that Pagel had ever been disciplined by TIN or received any warnings regarding his performance. (Doc. 54 at24).

The essential functions of an account manager at TIN include calling on customers and prospective customers, planning, performing and reporting sales activities and objectives, solving customer problems and creating packaging solutions, and initiating packaging design projects. (Doc. 51 at 3-4). Prior to 2006, account managers did not receive formal performance reviews and Pagel's success was measured primarily by his sales volume. (Doc. 55-1 at 24-25). In 2006, TIN instituted a policy that required supervisors such as Kremer to write formal performance reviews on all account managers. (Doc. 55-1 at 24-25). The evaluative criteria in the account managers' reviews included the following: the quantity and quality of their sales activities, the volume of product they sell, and the new customers they acquire on a year-to-year basis. (Doc. 51 at 3). To aid him in this task, Kremer required Pagel and the other account managers to e-mail him daily reports of their activities as well as a more detailed report every two weeks. (Doc. 51 at 4-5).

TIN's account managers are able to set their own schedules and Pagel was not required to submit any formal or documented request for time off. (Doc. 54 at 5). Notwithstanding this, TIN's employment policies recognize and provide for FMLA leave. (Doc. 51 at 4).

In July of 2006, Pagel began experiencing chest pains. (Doc. 54 at 15). In response, Pagel visited a cardiologist in Peoria, Illinois on July 10. (Doc. 54 at 15, Doc. 54-6 at 1). Feeling that this cardiologist didn't take his symptoms seriously enough, Pagel sought a second opinion from a cardiologist in Davenport, Iowa on July 21. (Doc. 54-6 at 1). This new cardiologist recommended that Pagel undergo a stress test and Pagel returned to Davenport on an outpatient basis on August 4 and August 7 for this test. (Doc. 54 at 15). A week later, Pagel received a call from the cardiologist informing him that the test results revealed a partial blockage in his heart and an angioplasty and stenting would be required on August 29-30. (Doc. 54-18 at 3). Sometime subsequent to this telephone conversation, but prior to August 29, Pagel mentioned to Kremer that he would not be working on August 29-30 due to a medical procedure. (Doc. 54-6 at 2; Doc. 54-30). However, the parties dispute what was said regarding the August 29-30 procedure and also when in August it was said. (Doc. 54 at 16).

On August 24, 2006, while Pagel was visiting the Crawfordsville plant, Kremer called Pagel into a meeting with himself and the plant manager, Rick Eaks. (Doc. 54 at 5). At this time, Kremer handed Pagel a memo that was drafted by Kremer and addressed to Pagel, with a subject line entitled "Written Notice -- Poor Performance." (Doc. 52-3 at 29-30; Doc. 52-3 at 78-79). Among other things, the memo explained that Pagel's sales volume had dropped in 2004, 2005, and 2006, that he had failed to identify and acquire any new customers in 2005 and 2006, and that he was failing to meet SEP (Sales Excellence Process) requirements, a component of which includes the aforementioned daily and bi-weekly reports. (Doc. 52-3 at 78-79). The memo also set forth new account goals for 2006, requiring that Pagel increase his tonnage and sales volume. (Doc. 52-3 at 78-79).

Pagel claims that he immediately noticed a number of mistakes in the performance data contained in this memo and he directed Kremer's attention to them. (Doc. 54-7). Kremer does not recall Pagel contesting the accuracy of the date contained in the memo. (Doc. 52-4 at 11). Kremer also testifies that he believed, and continues to believe, that the information in the performance memo was accurate. (Doc. 52-4 at 19).

The following week, on August 29, Pagel was admitted into inpatient care for an angioplasty and stenting. (Doc. 54 at 16). In the hours leading up to his surgery on the afternoon of August 29, Pagel placed telephone calls to a number of his existing clients, as well as to Kremer. (Doc. 54-13 at 1; Doc. 54-18 at 5-7). Furthermore, while recovering in the hospital post-surgery, Pagel continued to phone existing clients. (Doc. 52-3 at 44). Pagel was discharged on August 30, 2006 and returned home to continue his recovery. (Doc. 52-3 at 44-45, Doc. 52-3 at 81). Shortly thereafter, Pagel returned to work and became ill. (Doc. 52-3 at 44-46). Consequently, he was readmitted to the hospital on September 6 and discharged on September 8. (Doc. 54 at 16). The following week, Pagel returned to work. (Doc. 52-3 at 47).

On September 18, Pagel made an outpatient visit to the hospital to get a radiological scan of a suspected mass in his lung, which turned out benign. (Doc. 51 at 9). That same day, Kremer phoned Pagel to inform him that he would be in Pagel's sales territory the next day and told him that he would like to accompany Pagel on his sales calls at that time. (Doc. 52-3 at 49). The following day, Pagel took Kremer on three sales calls. (Doc. 54 at 10). The first sales call was to a factory that had closed. (Doc. 54 at 10). At the second call, they met with a receptionist who requested a quote on a very small number of boxes. (Doc. 54 at 10). At the third and final call, Pagel spent more than two hours promoting TIN's products to a business that Kremer considered a bad fit because the business required products that TIN did not offer. (Doc. 54 at 10). Pagel admits that his ride-along with Kremer was not his best salesmanship, and that the experience could have left Kremer with a bad impression of Pagel's sales abilities. (Doc. 52-3 at54).

On October 4, Kremer presented Pagel with a memorandum dated October 2, 2006 (the "Termination Letter") terminating Pagel's employment for poor job performance. (Doc. 52-3 at 80). In addition to detailing deficiencies with Pagel's sales calls, the memo also stated that Pagel had failed to improve his performance in any of the critical areas outlined in his August performance warning, and instead, that Pagel's performance had declined even further. (Doc. 52-3 at 80).

On October 10, 2008, Pagel filed suit against TIN in the Circuit Court of Peoria County, Illinois alleging that he was terminated in violation of the FMLA, asserting both an interference and a retaliation claim. TIN timely removed the case to this Court on April 10, 2009, pursuant to 28 U.S.C. § 1441. (Doc. 1).


Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying the evidence it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986). If the moving party meets this burden, the nonmoving party cannot rest on conclusory pleadings but "must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Serfecz v. Jewel Food Stores, 67 F.3d 591, 596 (7th Cir. 1995) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585--86 (1986)). A mere scintilla of evidence is not sufficient to oppose a motion for summary judgment; nor is a metaphysical doubt as to the material facts. Robin v. Espo Eng. Corp., 200 F.3d 1081, 1088 (7th Cir. 2000) ...

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