Calder v. Tci Cablevision of Missouri, Inc.

• Citation: 298 F.3d 723
• Decision Date: 06 August 2002
• Docket Number: No. 01-3237.,01-3237.
• Parties: Jan CALDER, Plaintiff/Appellant, v. TCI CABLEVISION OF MISSOURI, INC., doing business as TCI Media Services, Defendant/Appellee, TCI Central, Inc., Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

298 F.3d 723

Jan CALDER, Plaintiff/Appellant, v. TCI CABLEVISION OF MISSOURI, INC., doing business as TCI Media Services, Defendant/Appellee TCI Central, Inc., Defendant.

No. 01-3237.

United States Court of Appeals, Eighth Circuit.

Submitted: June 14, 2002.

Filed: August 6, 2002.

COPYRIGHT MATERIAL OMITTED

D. Eric Sowers, argued, St. Louis, MO (Ferne P. Wolf, on the brief), for appellant.

Jerry M. Hunter, argued, St. Louis, MO (Timothy C. Mooney, Jr., on the brief), for appellee.

Before WOLLMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.

WOLLMAN, Circuit Judge.

Jan Calder filed suit against TCI Cablevision of Missouri, Inc. (TCI) alleging that she was terminated because of her age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the Missouri Human Rights Act, Mo.Rev.Stat. §§ 213.010-213.137. The district court¹ granted summary judgment to TCI, and Calder appeals. We affirm.

I.

Calder, who was born on June 12, 1934, was hired by TCI in March 1985. Her duties as an account executive at TCI were to sell advertising on TCI's cable television system to St. Louis area businesses and manage individual advertisers' accounts.

On December 4, 1994, several of the accounts Calder was managing were transferred to other account executives. Jill Gainer, who was then the general manager of the St. Louis office, and Kim Wright, the local sales manager, jointly decided to transfer the accounts. When told of the switch, Calder became agitated and stated that she believed the change was being made to force her out because of her age.

In December 1995, Sonja Farrand became regional vice president of TCI. She believed that the professionalism and revenue performance of the St. Louis office were well below that of other TCI offices. To increase the office's performance, she purchased new equipment and furniture, provided training for account executives on research and sales presentations and techniques, hired John Gutbrod to replace Gainer as general manager and Pat Quesnel as the new local sales manager, and established minimum performance standards for all account executives. Under the new standards, account executives were required to make fifteen face-to-face sales calls per week, identify five new business prospects per week, make two face-to-face new business calls per week, submit a minimum of three written proposals per week to management, prepare for and attend weekly individual business meetings with management, be proficient in using all sales resources, and be in the office from 8:30 a.m. until 5:30 p.m. or notify management of the reason for being out of the office. Account executives also had a budget of expected sales that they were supposed to reach monthly. These budgets were set one year in advance by management in consultation with the account executives and varied monthly based on changes in expected revenue.

Shortly after Farrand took over, Gainer and Wright informed her that Calder was upset about the account switches in 1994 and they expressed some concern about Calder's performance. Despite these concerns, Calder had received good performance reviews under their management. She did not fare as well under the new management. Both Gutbrod and Quesnel noticed shortly after they started working that Calder was not meeting her budgets. Calder told Gutbrod that she believed the previous management was trying to force her out because of her age. He replied by stating that age did not matter to him, only performance.

Calder's relationship with the new management deteriorated over the remainder of her time at TCI. In November 1996, Gutbrod sent Calder a memorandum criticizing her for making mistakes regarding a political candidate's commercials. He also expressed concern about her not being in the office, not meeting her budget, and not generating new business. Quesnel rated her performance as below average on her January 1997 quarterly review. On January 17, 1997, Gutbrod wrote a letter to Farrand stating that "the prudent business decision is to terminate [Calder] or at least significantly reduce her account list," but that he feared she would take legal action in response. On January 28, Gutbrod sent Calder a memo criticizing her for allowing her voice-mail box to fill up so that he could not leave her a message. Gutbrod sent Calder a memo on February 10, 1997, informing her that she had failed to meet her budget in twelve of the previous thirteen months. Gutbrod and Quesnel reassigned several of Calder's accounts as well as the accounts of other account executives effective February 24, 1997. Quesnel testified that the reassignments were spurred by a merger that increased TCI's market share and that Calder's budget was adjusted to reflect the change in her accounts.

On March 7, 1997, Calder's attorney sent TCI a letter stating that Calder "has been subjected to discriminatory treatment by her employer" and asking that the treatment be stopped. TCI's division counsel replied by stating that TCI was unaware of any discriminatory treatment and by offering to work with appropriate management personnel to remedy any alleged discriminatory treatment upon receiving further details from Calder's counsel regarding such treatment. Calder's counsel's only response to this offer was to file the present action against TCI following Calder's termination.

Calder received her first "corrective discipline memorandum" on March 24, 1997, which stated that she was not making her budgets because she was not setting enough appointments with new clients. Quesnel later corrected this memorandum because Calder had not been credited with all her sales, and had actually achieved 99.5% of her budget. In April 1997, Farrand reminded Calder of the requirement that she submit a minimum of three proposals a week. Calder acknowledged that she had not complied with this requirement and promised to send Farrand some of her proposals, but failed to do so. On April 27, 1997, Gutbrod sent Farrand a memo in which he recounted the problems they had had with Calder and observed that the two had agreed to "document heavily" Calder's lack of performance. On Calder's July 16, 1997, performance evaluation, Quesnel and Gutbrod rated her as needing improvement in almost every category. Quesnel wrote that Calder was deficient in submitting written proposals, soliciting new clients, acquiring proficiency on new technology, and improving her dependability. In August 1997, Quesnel sent Calder a memorandum stating that she had made a mistake in setting up a commercial in the tape library and that she should either learn how to use the library properly or ask for assistance. Also in August, Quesnel criticized Calder for quoting an unapproved rate for advertising to a client, a mistake that caused the client to decide not to advertise on TCI's cable system. In yet another August memo, Quesnel told Calder that she had to submit two proposals a week to Gutbrod and him and that she should take a manager on at least one appointment per week. In September, Quesnel wrote in a memorandum for Calder's file that one of her clients had requested that its account be transferred to another account executive. In October, Gutbrod sent Calder a memo stating that her tardiness at the weekly sales meetings was unacceptable. Only seven percent of Calder's billing through October was from new business, a much smaller proportion than any other account executive. In November, Quesnel gave Calder a memo stating that she was not filling out paperwork properly, along with two corrective discipline memorandums noting Calder's failure to meet her budgets, as well as other problems. Calder's November 1997 performance appraisal rated her as "unacceptable" or "needs improvement" in most categories and noted that she did not understand paperwork or the computer programs, did not follow procedures, did not call enough potential clients or prepare proper proposals, did not work with management, did not show initiative, did not ask for help, did not make her budget, and did not bring in enough new business. In December, Calder received a discipline memorandum stating that she was not going to meet her budget for December, that she had not secured enough new business, and that management had received only one proposal from her since her last review. On December 18, Gutbrod sent Calder a memo stating that she had violated the company's policy for new client credit applications. Calder achieved seventy percent of her budget in 1997.

On January 5, 1998, Gutbrod e-mailed Farrand and Mark Duke, TCI's vice president, suggesting that unless they saw significant improvement from Calder in the next three weeks, they should terminate her. Calder took medical leave from January 5 to early May 1998. When she returned, Quesnel sent her a memo describing the steps she needed to follow to maintain her position, including a new requirement that she take a manager on at least two sales calls per week. On June 25, Quesnel sent another memo, which stated that Calder had not improved in the areas of completing three proposals per week, taking management on two calls per week, calling in if she did not return to the office at the end of the day, and scheduling clients thirty days in advance. Calder was terminated by Farrand, with input from Gutbrod and Quesnel, in August 1998. She was then sixty-four years old. Farrand testified that Calder was terminated because she demonstrated a lack of progress in meeting her budget, in making professional proposals, in developing skill with the quantitative and qualitative research tools provided by the company, and in not responding well in working with management.

Calder alleges that management at TCI made several discriminatory comments. During one of Calder's individual meetings with Quesnel, he told her that she should walk faster, comparing her to a younger account executive. Calder testified that Farrand...