This cause of action arises out of a claim by plaintiff
based upon title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-3 (1978) ("title VII"). Plaintiff contends that
defendant retaliated against plaintiff in violation of section
2000e-3 by giving an unfavorable and untrue reference to
prospective employers, the Commonwealth of Puerto Rico
("Commonwealth") and Congoleum Corporation ("Congoleum"), and
by stating to Congoleum that plaintiff had filed a charge
against defendant with the Equal Employment Opportunity
Commission ("EEOC").*fn1 Defendant contends that any reference
or comments to prospective employers of plaintiff were accurate
responses based upon plaintiff's performance as an employee of
defendant and were not in retaliation for plaintiff's filing of
a discrimination charge with the EEOC. The court concludes that
plaintiff has failed to establish that defendant retaliated
against plaintiff in violation of title VII regarding
plaintiff's application for employment with Commonwealth. The
court also concludes that plaintiff has failed to establish
that defendant retaliated against plaintiff in violation of
title VII as to defendant's statement to Congoleum regarding
plaintiff's reason for leaving defendant's employ. The court
concludes that plaintiff has established that defendant
retaliated against plaintiff in violation of title VII
regarding defendant's statement to Congoleum that plaintiff
had filed an EEOC charge. Accordingly, the court enters the
following findings of fact and conclusions of law pursuant to
Federal Rule of Civil Procedure 52.
FINDINGS OF FACT
1. Plaintiff is a citizen of the United States who resides
in Chicago, Illinois.
2. Defendant is a corporation with an office located at
1700 Mt. Prospect Road, Des Plaines, Illinois, who employs
more than fifteen persons in the business of manufacturing and
distributing paint and other wall coverings in interstate
3. Plaintiff was employed by defendant from August 17, 1970
to August 15, 1973.
4. During the period relevant to this cause of action,
defendant was an employer engaged in an industry affecting
commerce within the meaning of title VII. See 42 U.S.C. § 2000e(b),
(g), and (h) (1978).
5. Defendant hired plaintiff as a salesman in defendant's
"wall covering division" on August 17, 1970.
6. On or about February 1, 1973, defendant transferred
plaintiff to defendant's "chemical coatings division" as a
field merchandise representative under the supervision of John
Nitz ("Nitz"), manager of the field merchandise group. The
field merchandise group trains the paint department personnel
of Sears, Roebuck, and Company.
7. On or about August 2, 1973, Nitz asked plaintiff to
leave, stating that plaintiff was too aggressive and that Nitz
had not seen any improvement in plaintiff's performance as a
field merchandise representative.
8. On August 10, 1973, Nitz wrote a letter to plaintiff as
a follow-up to their conversation on August 2, 1973. Nitz
stated in the letter that the letter was formal notice of
plaintiff's termination on or about September 2, 1973. The
letter also states that, if the plaintiff so wished, defendant
would provide plaintiff with a letter of recommendation and
would assist plaintiff in producing a resume.
9. On August 14, 1973, plaintiff met with defendant's
personnel supervisor, Diana Parks, for an exit interview.
Plaintiff signed an "exit interview form" which stated that
plaintiff's resignation was "due to lack of mutual
understanding of position objectives and functions."
10. On August 15, 1973, plaintiff met with defendant's
merchandise director, Stevenson Mountsier ("Mountsier").
Plaintiff requested the meeting to inform Mountsier of the
nature of plaintiff's leaving the employ of defendant and to
advise Mountsier of the status of the field merchandise group.
11. At the time that plaintiff left defendant's employ,
plaintiff was receiving an annual salary of $13,560 from
defendant, plus other benefits including pension and profit
sharing, hospitalization, and health insurance.
12. On or about August 16, 1973, plaintiff filed charges
with the EEOC and the Illinois Fair Employment Practices
Commission alleging that defendant unlawfully terminated
plaintiff's employment based upon plaintiff's religion and
13. On or about November 8, 1973, defendant acknowledged
receipt of the EEOC charge filed by plaintiff.
14. In November 1973, plaintiff had two interviews with Jack
Peninger of Commonwealth regarding the position of sales
representative. This position with Commonwealth paid a salary
of approximately $17,500 annually, plus health and retirement
benefits, and one percent of net sales as commission.
15. On November 12, 1973, Commonwealth wrote to defendant
requesting information regarding plaintiff's employment with
16. On November 21, 1973, James Morita of defendant's
personnel office wrote a letter to Commonwealth stating that
plaintiff resigned due to lack of understanding of position
objectives and functions.
17. Plaintiff did not receive an offer of employment from
18. On or about April 12, 1974, plaintiff filed an amended
charge with the EEOC alleging that defendant had unlawfully
retaliated against plaintiff for filing the original EEOC
19. In November 1974, plaintiff applied for a position as
sales representative for the Chicago area with Congoleum. On
November 6 and 13, 1974, plaintiff met with Congoleum
personnel in Chicago to discuss the position. As a result of
these meetings, plaintiff was invited to meet with other
Congoleum officials at Congoleum's home office in Kearney, New
Jersey on November 22, 1974. Plaintiff was one of two
finalists under consideration for the position of sales
20. On November 19, 1974, Congoleum's personnel director
Kenneth Baumler ("Baumler") contacted Dan Zacharski
("Zacharski") of defendant's personnel office for information
concerning plaintiff's employment with defendant. Defendant's
policy regarding such inquiries was to provide the former
employee's dates of employment, title, and salary. Zacharski
informed Baumler of plaintiff's dates of employment, salary,
and that plaintiff was given the opportunity to resign due to
plaintiff's misunderstanding as to his duties. Zacharski also
informed Baumler that plaintiff had filed a charge with the
21. At Congoleum's expense, plaintiff was flown to
Congoleum's home office in Kearney, New Jersey for an
interview on November 22, 1974. Plaintiff had a series of
meetings with defendant's personnel, Anthony Bolin ("Bolin"),
Richard Strong ("Strong"), and Baumler. The plaintiff's first
meeting was with Bolin and Strong wherein salary and the
requirements of the position of sales representative were
discussed. The plaintiff's second meeting was with Baumler
wherein general personnel policies and benefits were
discussed. The third meeting was attended by plaintiff, Bolin,
and Strong. At this third meeting, Bolin asked plaintiff if
plaintiff had filed an EEOC charge. Plaintiff stated that he
had filed such a charge. Bolin stated that he had no further
questions. Plaintiff then met with Strong where the
plaintiff's filing of the EEOC complaint against defendant was
discussed again. Plaintiff did not meet further with the
Congoleum officials and returned to Chicago.
22. On December 9, 1974, plaintiff received a letter from
Congoleum informing him that Congoleum had hired someone else
for the sales representative position. The position was filled
in January 1975. Congoleum paid a salary of approximately
$17,500 annually, plus health and retirement benefits.
23. Congoleum terminated its Chicago operation in January
24. Plaintiff was unemployed from August 15, 1973 through
November 17, 1975. From November 17, 1975 to August 31, 1976,
plaintiff was employed as a sales representative by Allied
Fiber Tube and Can Company in Chicago, Illinois at a salary of
$12,000.00 annually. Plaintiff was unemployed from September
1976 to June 1977. In June 1977, plaintiff was employed as a
merchandise representative by Wagner Spray Tech Corporation
("Wagner") in Chicago, Illinois at a salary of $13,200.00
annually. Plaintiff remains employed by Wagner as a sales
representative at a salary of $27,565.00 annually.
25. On June 30, 1976, the EEOC issued a determination that
there was reasonable cause to believe plaintiff's allegation
of retaliation regarding the reason given to Commonwealth by
defendant for plaintiff leaving the employ of defendant.
CONCLUSIONS OF LAW
1. The court has jurisdiction over this cause of action
pursuant to title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-5(f)(3) (1978).
2. Title VII provides, in pertinent part:
It shall be an unlawful employment practice for
an employer to discriminate against any of his
employees . . . because he has opposed any
practice made an unlawful employment practice by
subchapter or because he has made a charge,
testified, assisted, or participated in any
manner in an investigation, proceeding, or
hearing under this subchapter.
42 U.S.C. § 2000e-3(a) (1978).
3. Defendant is an employer for the purpose of title VII as
defined in 42 U.S.C. § 2000e(b) (1978).
4. Plaintiff, as a former employee of defendant, can
maintain a cause of action based upon retaliation as
prohibited by 42 U.S.C. § 2000e-3 (1978). Pantchenko v. C. B.
Dolge Co., 581 F.2d 1052, 1055 (2d Cir. 1978) (per curiam);
Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165
(10th Cir. 1977).
5. It is not necessary for a plaintiff to establish the
validity of the underlying EEOC charge in order to establish
a claim of employer retaliation in violation of 42 U.S.C. § 2000e-3
(1978). Berg v. LaCrosse Cooler Co., 612 F.2d 1041,
1043 (7th Cir. 1980); Rogers v. McCall, 488 F. Supp. 689, 697
(D.C.D.C. 1980); Slotkin v. Human Development Corp.,
454 F. Supp. 250, 257 (E.D. Mo. 1978).
6. The EEOC's findings pursuant to an investigation are
admissible evidence and may be considered by the court.
Smith v. Universal Service, Inc., 454 F.2d 154, 157 (5th Cir.
7. The shifting burden of proof standard applied in title
VII suits generally as set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d
668 (1973), also is applied in cases alleging retaliation for
participation in title VII grievance procedures.*fn2 See
Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980), cert.
denied, ___ U.S ___, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981);
Hochstadt v. Worchester Foundation, 425 F. Supp. 318, 324
(D.Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976); Aguirre v.
Chula Vista Sanitary Service & Sani-Tainer, Inc., 542 F.2d 779,
781 (9th Cir. 1976).
8. In order to establish a prima facie case of retaliation
in violation of 42 U.S.C. § 2000e-3 (1978), the plaintiff must
establish: (1) statutorily-protected participation by the
employee; (2) adverse employment action by the employer; and
(3) a causal connection between the two. Womack v. Munson,
619 F.2d 1292, 1296 (8th Cir. 1980), cert. denied, ___ U.S. ___,
101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). "Statutorily-protected
participation" by the employee includes the filing of
employment discrimination charges with the EEOC. Pettway v.
American Cast Iron Pipe Co., 411 F.2d 998, 1005-06 (5th Cir.
1969). "Adverse employment action" by the employer includes,
inter alia, discharging the employee, harassing or disciplining
the employee, and giving poor recommendations or references to
prospective employers of the employee. See Womack v. Munson,
619 F.2d 1292, 1296 (8th Cir. 1980), cert. denied, ___ .S. ___,
101 S.Ct. 1513, 67 L.Ed.2d 814 (1981) (discharge); Pantchenko
v. C. R. Dolge Co., 581 F.2d 1052, 1055 (2d Cir. 1978) (per
curiam) (recommendation); Rutherford v. American Bank of
Commerce, 565 F.2d 1162, 1165 (10th Cir. 1977) (reference);
Hayden v. Chrysler Corp., 486 F. Supp. 557, 563 (E.D. Mich.
1980) (harassment). "Causal connection" consists of evidence
showing that a retaliatory motive played a part in the adverse
employment action which includes establishing that the employer
had actual or imputed knowledge of the employee's
statutorily-protected participation. Womack v. Munson,
619 F.2d 1292, 1296 (8th Cir. 1980), cert. denied, ___ U.S. ___, 101
S.Ct. 1513, 67 L.Ed.2d 814 (1981); Rogers v. McCall,
488 F. Supp. 689, 697-98 (D.C.D.C. 1980).
9. If the plaintiff establishes a prima facie case of
retaliation, under McDonnell Douglas Corp. v. Green,
411 U.S. 722, 802-04,
93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), and its
progeny, the burden then shifts to the defendant to articulate
a legitimate, nondiscriminatory reason for the adverse
employment action. If the defendant so rebuts the plaintiff's
prima facie case, the plaintiff then must prove that the
defendant's reasons were a pretext for discrimination
prohibited by title VII. See Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67
L.Ed.2d 207 (1981).
10. Applying the law to the alleged retaliation by defendant
in giving an unfavorable and untrue recommendation of
plaintiff to Commonwealth, the court concludes that plaintiff
has failed to establish a prima facie case of retaliation in
violation of 42 U.S.C. § 2000e-3 (1978). Plaintiff has shown
that he engaged in statutorily-protected activity pursuant to
42 U.S.C. § 2000e-3 (1978) by filing the original EEOC charge
in August 1973. Plaintiff, however, has not shown any adverse
employment action by defendant regarding plaintiff's
application for employment with Commonwealth. Rather, as a
result of an inquiry by Commonwealth, defendant merely relayed
to Commonwealth a statement included on plaintiff's exit
interview form which had been acknowledged and signed by
plaintiff. The fact that defendant in communicating with
Commonwealth omitted the word "mutual" from the statement on
the exit interview form does not constitute adverse employment
action for the purpose of establishing the second element of a
prima facie case of retaliation under title VII. The EEOC
finding that there was reasonable cause to believe plaintiff's
allegation of retaliation regarding the reason given to
Commonwealth by defendant is entitled to some consideration by
the court, but is not conclusive. Alternatively, assuming
arguendo that plaintiff established a prima facie case of
retaliation regarding the reason given to Commonwealth by
defendant for plaintiff leaving the employ of defendant, the
court concludes that defendant has rebutted the prima facie
case with a legitimate, nondiscriminatory reason for the
statement to Commonwealth and that plaintiff has failed to
establish that defendant's reason is a pretext for
discrimination prohibited by title VII. Accordingly, plaintiff
has failed to establish a prima facie case of retaliation by
defendant in violation of title VII regarding plaintiff's
application for employment with Commonwealth.