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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

SONDRA KRAUSE,

Plaintiff,

v.

GEORGIA-PACIFIC CORPORATION, a for

profit Georgia corporation, and ERIC KING,

JANE DOE KING, and the marital

community comprised thereof,

Defendants.

Case No. C05-5809JKA

ORDER

THIS MATTER comes before the court on the Defendants’ Motion for Summary Judgment (Doc.

20) with regard to all claims filed by plaintiff. This case has been reassigned to the undersigned magistrate

judge for the conduct of all proceedings and the entry of judgment in accordance with 28 U.S.C. § 636(c)

on the consent of the parties. 

PROCEDURAL BACKGROUND

Plaintiff’s complaint was filed with the Washington State Superior Court for Thurston County on

or about September 15, 2005, alleging six causes of action:

(i) Age Discrimination;

(ii) Wrongful Retaliation/Disriminatory Harassment/Wrongful Termination;

(iii) Negligent Infliction of Emotional Distress

(iv) Breach of Contract (Promissory Estoppel), Negligent Supervision and Negligent Retention

(v) Voice Misappropriation and Fraudulent Misrepresentation/False Advertising; and 

(vi) Wage Claim (RCW 49.52).

On December 19, 2005, Defendants filed a Notice of Removal of Civil Action with this court,

stating this court was the court of proper jurisdiction due to the fact that the Complaint raised a question of

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federal law (Age Discrimination claim pursuant to 29 USC § 621, et seq.) pursuant to 28 USC § 1331, as

well as 28 USC § 1441. 

On March 6, 2007, Defendants filed the instant motion for summary judgment, properly noted it for

consideration on March 30, 2007. Defendants ask for dismissal of Plaintiff’s Complaint in its entirety. 

Defendants argue:

Plaintiff, a former Accounting Assistant at Georgia-Pacific's Olympia

Containerboard Plant, was terminated on October 7, 2004, after more than three years of

consistently poor performance evaluations, written corrective actions, strategic time

management plans, coaching sessions and a final 60-Day Performance Improvement Plan

("PIP"). While Plaintiff admits that she made many mistakes and often failed to complete

assigned tasks or meet deadlines, she is nevertheless suing Georgia-Pacific for age

discrimination, wrongful discharge under every theory thinkable, and other miscellaneous

claims.

Plaintiff's claims are based on her subjective belief that her performance was fine

until Eric King, an experienced CPA, was hired as the plant's Controller in 2001. There is

no dispute that Mr. King demanded a well-trained, competent accounting staff. There is

also no dispute that Plaintiff's inability to meet Mr. King's expectations incited conflicts

between the two, as both employees made repeated complaints to Human Resources about

the other. Plaintiff complained that Mr. King's "belittling and demeaning" conduct toward

her created a "hostile environment," but she never reported that he discriminated against her

based on age, gender or any other unlawful basis. Indeed, Human Resources refereed this

tumultuous working relationship for over a year, attempting to simultaneously correct

Plaintiff’s poor performance and Mr. King’s abrasive communication style. Both Plaintiff

and Mr. King were counseled and disciplined for their respective deficiencies, the Company

moved Mr. King's office away from Plaintiff's, and Human Resources was involved in all

meetings related to Plaintiff's performance improvement plans and disciplinary actions.

When Plaintiff was placed on a final 60-Day PIP, she requested that she not be supervised

or evaluated by Mr. King, and in response to her request, the Human Resources Manager

became her direct supervisor and ultimately made the decision to terminate Plaintiff because

she had not met the expressly defined objectives of her PIP.

While Plaintiff was given every opportunity to be successful, she was unable to meet

the expectations for her position as Accounting Assistant. Plaintiff has no evidence that her

age, gender, or FMLA leave, played any role in her termination, and the fact that Plaintiff's

sole comparator was the same age and gender as Plaintiff and also took FMLA leave is fatal

to Plaintiff's claims. In short, Plaintiff cannot sustain her claims for discrimination under any

theory, and Plaintiff’s other claims—like her voice misappropriation claim for leaving a

recording of her voice on the plant’s internal telephone message system—are frivolous and

without legal and factual support.

Defendant’s Motion For Summary Judgment at 1-3. In response to Defendant’s motion, on March 27,

2007, the court received eight declarations (Declarations from (Declarations of Jerrold Everett, Ben

Potter, Zenna Dunning, Ron Jennings, Mac Cook, Loras Gassman, Joanie Unglaub, and Diane Childress

(Docs. 26-33). The next day (March 27, 2007) the court received two more declarations (Declaration of

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Ron Goodpasture and Alex Rainey) (Docs. 34, 35). On the noting date, March 30, 2007, the court

received two further pleadings from Plaintiff. Plaintiff filed, “Plaintiff’s Response Opposing Motion for

Summary Judgment” (Doc. 37) and a declaration from Plaintiff (Doc. 38). 

After receiving a surreply from Defendants and after considering the pleadings filed, the court

moved the motion’s noting date to allow Defendants a fair opportunity to reply to Plaintiff’s materials filed

in opposition to the motion, and the court awarded costs to Defendants. On April 5, 2007, the court heard

oral argument, and now rules as follows.

LEGAL STANDARD

Summary judgment shall be rendered if the pleadings, exhibits, and affidavits show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 

Fed.R.Civ.P. 56(c). In deciding whether to grant summary judgment, the court must view the record in the

light most favorable to the nonmoving party and must indulge all inferences favorable to that party. 

Fed.R.Civ.P. 56(c) and (e). When a motion for summary judgment is made and supported as provided in

Fed.R.Civ.P. 56, an adverse party may not rest upon the mere allegations or denials of his pleading, but his

response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts showing that there

is a genuine issue for trial. Fed.R.Civ.P. 56(e). If the nonmoving party does not so respond, summary

judgment, if appropriate, shall be rendered against that party. Id.

DISCUSSION

A. Plaintiff Was Dismissed For Legitimate Nondiscriminatory Reasons

The Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., makes it

“unlawful for an employer ... to fail or refuse to hire or to discharge any individual [who is at least 40 years

of age] ... because of such individual's age.” 29 U.S.C. at §§ 623(a), 631(a). To establish a violation of

ADEA under the disparate treatment theory of liability, Plaintiff “must first establish a prima facie case of

discrimination. If [she does so], the burden then shifts to [Defendants] to articulate a legitimate

nondiscriminatory reason for its employment decision. Then, in order to prevail, [Plaintiff] must

demonstrate that [Defendants’] alleged reason for the adverse employment decision is a pretext for another

motive which is discriminatory.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994). Despite the

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burden shifting, the ultimate burden of proof remains always on the former employee to show that the

employer intentionally discriminated because of his or her age. Rose v. Wells Fargo & Co., 902 F.2d

1417, 1420-21 (9th Cir.1990).

Here, there appears to be an issue of material fact with respect to whether or not Plaintiff can

establish a prima facie case. During oral argument Defendants argued that Plaintiff cannot establish that

she was qualified for the accounting job she was terminated from and that she cannot show that she was

replaced by a younger person after she was terminated. In contrast, Plaintiff has presented some evidence

that she improved the collections portion of the job and was able to effectively deal with clients in her

position. However, a question remains whether or not the growth or changes in the company required

skills she simply did not have to perform her job. The evidence presented also shows that while Plaintiff

was on FMLA leave a temporary employee was brought in to help in the accounting department, who was

not significantly younger than Plaintiff. When Plaintiff was eventually terminated, it also appears that the

accounting department was restructured, and a younger person was hired. The court notes that the person

hired was a certified public accountant and that her responsibilities appear to be greater than those assigned

to Plaintiff when she worked in the department. In sum, there are material issues of fact that would need to

be resolved at trial to determine if Plaintiff has presented a prima facie case.

However, assuming Plaintiff has established a prima facie case, the court finds Defendants have

argued and presented sufficient facts to prove Plaintiff was terminated from her job at Georgia Pacific for

legitimate nondiscriminatory reasons. The following facts, taken from Defendants’ brief supporting the

motion for summary judgment and edited, are undisputable.

Plaintiff was hired on May 17, 1982, as a receptionist at Georgia-Pacific's Olympia

plant. While in the receptionist position, Plaintiff began performing Accounts Payable

("A/P") in the Accounting Department. By 2000, Plaintiff had fully transitioned into the

Accounting Department as an Accounting Assistant. From February 2000 until her

termination (on October 7, 2004) , Plaintiff's primary duties were A/R collections, calling

and resolving late payment issues with customers, recording and tracking A/R actions,

invoicing, daily filing and maintaining and balancing daily reports called "Pepsi Reports" and

"Purchased Finished Goods" ("PFGs") Spreadsheets. Plaintiff also performed various other

responsibilities such as managing the telephone system (including recording the messages for

the plant's internal and external extensions), preparing employee birthday cards on a monthly

basis, and helping organize employee events. 

In March 2001, Eric King was hired to manage the Olympia Accounting

Department. At some point, Mr. King became concerned with Plaintiff's performance in the

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general areas of time management, ability to multi-task, attention to detail and willingness to

adapt to new tasks and procedures. Mr. King sought the advice of Ms. Boe, (Plaintiff’s

previous supervisor) and pursuant to advice for the human resource depart, in May 2001,

Mr. King issued a memorandum identifying some of Plaintiff's errors to illustrate the areas in

which she needed to improve. In response to the memorandum, Plaintiff agreed to be more

proactive in her job, including seeking clarification of unfamiliar tasks and receiving

additional training from Mr. King in A/R, invoicing and the computer accounting program.

In January 2003, Plaintiff received a written "verbal" Employee Performance

Improvement Form related to numerous invoicing errors she made during a one-month

period from December 16, 2002 to January 16, 2003. Plaintiff accepted responsibility for

her mistakes and agreed to pay closer attention to detail. However, three months later, on

May 28, 2003, Ms. Boe and Mr. King provided Plaintiff with a "written" Employee

Performance Improvement Form when she failed to follow the invoicing procedures for one

of the plant's major customers and incorrectly billed 7 out of 37 shipments. 

On August 19, 2003, Mr. King and Ms. Boe again met with Plaintiff for her

Mid-Year Performance Review to address her performance in failing to stay current with

A/R collections and her frequent inability to timely complete her assignments. Ms. Boe and

Mr. King created a schedule and action plan that set out specific expectations for Plaintiff to

complete her A/R collections, to document her work properly in the accounting computer

program and to timely perform miscellaneous job requests. Mr. King and Ms. Boe both

noted that some of Plaintiff’s errors on invoices and spreadsheets stemmed from poor math

skills. Consequently, Plaintiff was directed to take classes specifically addressing the types of

math skills she needed to perform her job, such as the conversion of decimals, fractions and

percentages. 

On July 23, 2004, Mr. King and Ms. Boe placed Plaintiff on a final Performance

Improvement Plan (PIP). The PIP identified four clear objectives that Plaintiff was required

to meet: (1) keeping up-to-date on A/R; (2) problem solving collections issues with

customers; (3) keeping up-to-date on daily duties; and (4) paying attention to detail. 

Plaintiff acknowledged these objectives and understood that if she failed to improve her

performance to an acceptable level, her employment would be terminated. At the time,

Plaintiff informed Ms. Boe that she would not be successful if she continued to report to

Mr. King. At that point Ms. Boe became Plaintiff's direct supervisor, evaluated Plaintiff's

performance and progress, and made all final decisions related to Plaintiff's employment.

On August 24, 2004, Plaintiff met with Ms. Boe and Mr. King for a 30-day review,

and Ms. Boe acknowledged that while Plaintiff had shown slight improvement, she had only

met one of her four objectives. Ms. Boe observed that Plaintiff was overwhelmed in her

position because of a lack of skills in time management, attention to detail and basic math. 

Ms. Boe decided Plaintiff would have to be removed from the accounting department, and

consulted her boss, Mr. White, and the Regional Human Resources Manager about the

possibility of treating Plaintiff's imminent termination as a layoff, which under

Georgia-Pacific's policies would entitle her to severance benefits. Ms. Boe succeeded in her

request, and on September 16, 2004, Ms. Boe provided a copy of the Severance Agreement

to Plaintiff and discussed its terms. Plaintiff did not accept the agreement. On October 7,

2004, after the expiration of the 21-day period Plaintiff had to consider the severance

package, Georgia-Pacific terminated Plaintiff's employment.

These facts are undisputed, and no genuine issue of material fact has been raised to prevent the court from

concluded that Defendants have presented legitimate non-discriminatory reasons for terminating plaintiff. 

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At this point in the analysis, any presumption of unlawful discrimination created by a prima facie case

“simply drops out of the picture. ” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125

L.Ed.2d 407 (1993)). To survive summary judgment, Plaintiff must now introduce “specific, substantial

evidence of pretext” sufficient to raise a genuine issue of material fact as to whether the reasons Defendants

articulated are pretexts for age discrimination. Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th

Cir.1983)).

After carefully reviewing the evidence presented by Plaintiff, the undersigned finds Plaintiff cannot

show Defendants actions (Plaintiff’s termination) were a pretext for age discrimination. To show that

Defendants were discriminating against her because of her age, Plaintiff relies heavily on a statement made

by Mr. King when he handed Plaintiff a set of math questions one afternoon and said, “Why don’t you take

it home. Your granddaughter could figure it out.” This statement is demeaning because it berates and

belittle’s Plaintiff’s mathematical skills, suggesting that a person still in grade school or junior high school

would be able to correctly answer the questions. There is no question that the statement was extremely

rude and disrespectful, but it does not establish or support Plaintiff’s claim of age discrimination. 

Plaintiff’s reliance on general statements she heard being made by the General Manager Scott White

also do not provide sufficient evidence of age discrimination to raise a material issue of fact. Plaintiff states

she heard Mr. Scott make statements such as, “I wasn’t even born when you started working here.” 

Plaintiff does not state these statements were directed toward her, but she felt they were inappropriate. 

Plaintiff also argues the company had a policy of purging older workers and this purge began sometime

following a March 2001 meeting Mr.White conducted to address “the older employees.” The court

reviewed the letter written by Mr. White inviting the most senior employees of the company and it clearly

states the company highly values the experience of such individuals. The letter and meeting does not

support any sort of claim of age discrimination as a motivation for plaintiff’s eventual termination. 

Similarly, Plaintiff’s reliance on several declarations filed by co-workers, friends and her current

employer do not provide any evidence of age discrimination. For instance, Plaintiff argues the declaration

of Diane Childress, a former manager who Plaintiff alleges was a victim of age discrimination, shows the

company maintained a “hit list” of employees that the company intended to terminate. After reviewing the

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declaration, the court finds no support or relation to age discrimination. 

To survive summary judgment, the burden is on Plaintiff to “produce enough evidence to allow a

reasonable factfinder to conclude either: (a) that the alleged reason for her discharge was false, or (b) that

the true reason for his discharge was a discriminatory one. Looking at the evidence in the light most

favorable to Plaintiff, the undersigned finds no reasonable juror could that Defendants intentionally

discriminated against her because of her age. Thus, Defendants motion for summary judgment on Plaintiff’s

disparate treatment claim under the ADEA is GRANTED.

B. Plaintiff’s Remaining State Law Claims

The court has deliberately not discussed any of Plaintiff’s remaining claims which are based solely

on state law. It is "within a district court's discretion either to retain jurisdiction to adjudicate the pendent

state claims or to remand them to state court." Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th

Cir.1991). Further, it is generally preferable for a district court to remand remaining pendent claims to

state court. Id. at 205. 

Rather than decide one way or the other on the issue of whether or not this court should retain

jurisdiction over Plaintiff’s retaliation and wage claims and proceed toward trial on those matters, at this

juncture the court directs the parties to each submit a brief discussing whether or not the remaining claims

should be remanded to state court. Accordingly, each party should file and serve their respective brief on

or before Monday, April 23, 2007. 

CONCLUSION

Based on the foregoing, the Clerk is directed enter summary judgment in favor of Defendant on

Plaintiff’s claim of age discrimination made pursuant to 29 USC § 621, et seq. The Clerk is further

directed note the issue of pendent or supplemental jurisdiction over Plaintiff’s remaining state law claims on

the court’s April 24, 2007, docket, at which time the court will issue a further decision on the matter.

DATED this 11th day of April, 2007.

/s/ J. Kelley Arnold J. Kelley Arnold

U.S. Magistrate Judge 

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