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September 27, 1989

ROBERT L. CRADER, Plaintiff,

Milton I. Shadur, United States District Judge.

The opinion of the court was delivered by: SHADUR


 Robert L. Crader ("Crader") sues his former employer Concordia College ("Concordia"), charging:

1. Concordia denied him a promotion and disciplined, harassed and discharged him, all on the basis of his race, *fn1" in violation of 42 U.S.C. § 1981 ("Section 1981") (Count I) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e -2000e-17 ("Title VII") (Count II).
2. Concordia placed additional burdens on him, gave him negative evaluations, denied him a promotion and discharged him in retaliation (a) for his testimony on behalf of a co-worker in a race discrimination case before the Illinois Department of Human Rights ("IDHR") *fn2" and (b) for his own filing with IDHR of a discrimination complaint against Concordia *fn3" (Count III).

 Concordia has now moved under Fed. R. Civ. P. ("Rule") 56 for summary judgment on all of Crader's claims. For the reasons stated in this memorandum opinion and order, the motion is granted as to Count I and in part as to Count III, but is denied in all other respects.


 Concordia is an undergraduate and graduate college operated by the Lutheran Church-Missouri Synod and located in River Forest, Illinois. It hired Crader as an entry level laborer in its Housekeeping Department ("Department") on October 15, 1979. Department maintains, cleans, supplies and services the campus buildings and all the college facilities, for which purposes it employs both full-time non-student workers and part-time student workers (Spurgat Aff. para. 7). At all times relevant to this litigation until 1987, Department's personnel occupied a hierarchical structure comprising, in descending order of rank, a Director, an Assistant Director, supervisors, crew leaders and laborers.

 When he was hired Crader was assigned a step 3, grade 1 laborer position. In 1980 he was promoted from laborer to crew leader; in 1981, from crew leader to supervisor; and in 1982 or 1983, from supervisor to Assistant Director of Housekeeping, a step 8, grade 7 position (Shackel Aff. paras. 3, 4, 5, 6). Twice during those years Director of Housekeeping David Allor ("Allor") filled out written evaluations of Crader's work. In 1981 Crader received 5s ("Excels in every situation relevant to this factor") on a 5-point rating scale in each of the 14 categories evaluated. Then in 1982 Crader received an overall rating of "outstanding" and, in the specific categories, received nine 5s, four 4s ("Has demonstrated ability to a degree that is clearly above that expected for competence") and one "N/A" ("not applicable") in written communications. Concordia stopped using those evaluation forms in about 1984 (Hermann Dep. 40-45).

 Late in 1984 Elsie Rhodes ("Rhodes"), another black housekeeping employee, filed a race discrimination complaint with IDHR. After Crader testified on her behalf in the IDHR hearing, he had several "run-ins" with Allor (Crader Dep. 150). And shortly after the Rhodes hearing Dean of Administration Dr. Fred Spurgat ("Spurgat") told Crader he did not care for the way things went at the hearing (id. 162).

 During his employment up to 1987 Crader repeatedly heard Concordia's Operations Manager Neal Shackel ("Shackel") make racial and ethnic jokes (Crader Dep. 126-30). Crader also testified to two racist statements by his direct supervisor Allor:

1. Allor once told Crader he was expendable because "I can get another nigger" (id. 164).
2. In 1984 Allor told Personnel Director Elaine Hermann ("Hermann") that he needed to fill a position in housekeeping but she should not send another black because they didn't seem to work out.

 As to that second remark, Hermann thought it a joke and Allor received no reprimand or discipline of any kind (Hermann Dep. 43-44).

 In his job as Assistant Director of Housekeeping, Crader's many duties and responsibilities included, in part, *fn5" regularly supervising student workers and workers on the evening shift, overseeing floor maintenance and helping with the development of the budget (Shackel Aff. para. 8). Crader would also assume the duties of the Director, including payroll calculations, whenever Allor missed work (Crader Dep. 44-47). Concordia identifies one aspect of Crader's performance as problematic: After Crader once filed an unfavorable report as to housekeeping supervisor Jean Smith, she complained to Allor. Allor then instructed Crader he should no longer inspect her work area (id.).

 On November 13, 1987 Allor resigned as Director of Housekeeping and left Concordia's employ. At that point the trouble really began. Crader believed, in light of his seniority and good record, that he should have been named Director in Allor's place (Crader Dep. 274). But Operations Manager Shackel disagreed because he believed Crader did not have the basic mathematical skills required for the job. Moreover, Allor had told Shackel that Crader had not demonstrated a track record of follow-up supervision and of being on site when a crew is at work (Shackel Dep. 22).

 Though Shackel nevertheless considered Crader along with Jean Smith ("Smith") and Frank Airhart ("Airhart") (two of Crader's inferiors in Department's supervisory structure) as the best management people then available within Department, he says he believed none of them had the overall ability to be Director. Shackel had been specifically instructed not to look outside the College staff for Allor's replacement. He therefore decided to reorganize Department's supervisory structure by eliminating the Director and Assistant Director positions and replacing them with three Associate Directors, each of whom would have individual responsibility for certain areas while they would coordinate Department's overall supervision (Shackel Dep. 13-14; Hermann Dep. 28-29).

 Before implementing that change Shackel sought input and suggestions from Crader, Smith and Airhart. Crader told Shackel (1) he questioned the workability of the reorganization, (2) he believed he was getting "the shaft" and (3) he felt Shackel was trying to get rid of him (Crader Dep. 276-77). Nonetheless Crader told Shackel he had resigned himself to the facts that reorganization would take place and that if he was dissatisfied he could always quit (id. 275). Shackel asked Crader not to quit but to accept an Associate Directorship (id. 292).

 Crader then filed a grievance pursuant to Concordia's procedures, expressing his view that the Director's position should be reinstated and he should fill it (Crader Dep. 284 and Dep. Ex. 10). Concordia considered and denied Crader's request and again encouraged him to accept the Associate Directorship (id. 285, 290). After several weeks of unsuccessful negotiations for a greater pay raise than that originally offered, Crader finally accepted the Associate Director position about December 20, 1987 (Shackel Aff. para. 17).

 Early 1988 witnessed substantial intra-Departmental turmoil. Crader openly resented the restructuring, and relations between him and Smith became quite strained. Immediately after the restructuring Smith, with Shackel's knowledge and without notice to Crader, moved Crader's desk out of his former office and took that office for herself (Airhart Dep. 39-42; Smith Dep. 10). Then on January 15, 1988 Smith removed some floor runners from Crader's new office space, again without notifying him. When Crader discovered what had happened he told Smith he was "tired of this shit" (Crader Dep. 301-02). Further conflicts between Crader and Smith over scheduling and scope of authority persisted, resulting in reports to Shackel of Crader's refusal to cooperate (Shackel Aff. para. 20). Those reports, compounded by Crader's tardiness and absence at regularly scheduled Department meetings, led Shackel and Hermann to write Crader a March 31, 1988 letter placing him on probation (Shackel Aff. para. 22) and stating he would be terminated unless his performance improved within 60 days.

 About April 26, 1988 Crader filed his already-mentioned IDHR complaint (see n. 3) charging race discrimination and retaliation for his having testified on Rhodes' behalf. On June 3, 1988 Concordia discharged Crader, citing his asserted lack of improvement. Crader then amended his IDHR complaint to include a charge of discrimination and retaliation for having filed his own ...

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