778 F.2d 512 (8th Cir. 1985), 85-1114, Bell v. Gas Service Co.

Docket Nº:85-1114.
Citation:778 F.2d 512
Party Name:Eleanor M. BELL, Appellant, v. GAS SERVICE COMPANY, Appellee.
Case Date:December 05, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 512

778 F.2d 512 (8th Cir. 1985)

Eleanor M. BELL, Appellant,

v.

GAS SERVICE COMPANY, Appellee.

No. 85-1114.

United States Court of Appeals, Eighth Circuit

December 5, 1985

Submitted Sept. 10, 1985.

Page 513

Richard E. Armitage, Kansas City, Mo., for appellant.

Steven Carr, Kansas City, Mo., for appellee.

Before ROSS, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and ARNOLD, Circuit Judge.

ROSS, Circuit Judge.

Appellant Eleanor M. Bell appeals from an adverse judgment in her age discrimination suit brought against her employer, Gas Service Company (appellee). Because we agree with the district court's 1 ultimate disposition of the case, we affirm the judgment of the district court.

I. FACTS

Appellant began working as a clerk for appellee on July 24, 1978, when she was 51 years of age. On May 16, 1980, appellant bid and was accepted for promotion to the position of Customer Service Representative (CSR). After she completed a trial period appellant was permanently assigned to the CSR position. As a CSR her duties consisted mainly of answering the phone, responding to service requests from customers and filling out call slips regarding customer calls. During her employment as a CSR, appellant received 28 documented warnings and reprimands concerning deficiencies in her job performance.

Two supervisors reviewed the work of the sixteen CSRs in appellant's work area. Each supervisor could monitor the calls and conversation between the CSRs and customers. The supervisors monitored the CSRs periodically during the day and the CSR was unaware that he or she was being monitored. Appellee had a policy which stated that any CSR who deliberately disconnected a customer's call would immediately be discharged. All CSRs, including appellant, initialed the office memorandum outlining this policy. Appellee also had a policy which provided that an employee

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who is not adequately performing in a position to which he or she was promoted, could be "disqualified" back to the lower position.

On September 8, 1982, one of appellant's supervisors, Jenna Jo Kinchelow, monitored the appellant and heard a customer's call be disconnected without appellant speaking. Kinchelow inspected appellant's call slips and ascertained that appellant had filled out call slip # 45 for the call that had been disconnected. Kinchelow continued to monitor the appellant for five or six additional calls which appellant handled properly.

At a meeting held the next day, attended by appellant, her union steward, and her supervisors, appellant denied deliberately disconnecting any customer and stated that her equipment hadn't been working correctly. Appellant volunteered that if she had disconnected a customer that she had not done it intentionally. Appellant also denied falsifying call slip # 45. Appellant was discharged on or about September 24, 1982, for violation of the company policy against disconnecting customers and for falsification of the call slip.

Following her discharge appellant filed a grievance under her union contract, and proceeded to arbitration which resulted in a finding that appellee had just cause to terminate her. Appellant's union grievance did not allege age discrimination. Appellant also filed a complaint with the EEOC alleging age discrimination which resulted in a finding that further action by the EEOC on her age claim was unwarranted. Upon receipt of the EEOC letter appellant filed this action alleging age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634 (1985). Appellant later amended her complaint to add a claim that appellee had fraudulently induced her to accept the CSR position with knowledge that she was unqualified.

Before trial the district court dismissed the misrepresentation claim for lack of subject matter jurisdiction after finding that appellee's conduct was arguably protected by section 157 of the National Labor Relations Act (NLRA), 29 U.S.C. Secs. 151-168 (1985) or arguably prohibited by section 158 of the NLRA. Appellant's age discrimination claim proceeded to trial before a jury which found in favor of appellant and awarded $29,770 in actual damages. The jury separately found that appellee's conduct was willful.

Subsequent to the jury verdict the district court granted appellee's motion for judgment notwithstanding the verdict (judgment n.o.v.) and conditionally ordered a new trial if the judgment for appellee is reversed. Appellant filed this appeal contesting the district court's entry of the judgment n.o.v. and conditional grant of a new trial on the age discrimination claim and the dismissal of the misrepresentation claim.

II. DISCUSSION

A. Judgment N.O.V. on Age Claim

The standard for granting a judgment...

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