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PLAIR v. E. J. BRACH & SONS

April 20, 1995

JOHN PLAIR, Plaintiff,
v.
E. J. BRACH & SONS, INC. and E. J. BRACH CORPORATION, Defendants.



The opinion of the court was delivered by: CONLON

 John Plair sues E.J. Brach & Sons, Inc. and E.J. Brach Corporation (collectively "Brach") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq. ("Title VII"). Plair contends that Brach fired him because he is African American. Brach moves for summary judgment pursuant to Fed. R. Civ. P. 56.

 BACKGROUND

 Brach is a candy manufacturer. Def. Rule 12(M) stmt., P 1; Pl. Rule 12(N) resp., P 1. Brach's main plant is located at 4656 W. Kinzie Street in Chicago, Illinois. Id. John Plair is an African-American male. Id., P 2. In August 1973, Plair began working for Brach as a porter. Deposition of John Plair ("Plair Dep.") at 10-11. At all relevant times, Plair worked as a mogul truck operator in the area of Brach's Chicago plant where chocolate-covered cherries are processed. Plair Dep. at 49-50. Plair's supervisor in the cherry processing area was Joseph Jackson. Id. at 54.

 While working at Brach, Plair joined Local 738 of the international Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Plair Dep. at 14. As a union member, Plair was subject to work rules promulgated by Brach. Affidavit of Bernard R. Schroeder ("Schroeder Aff."), P 6; Schroeder Aff., Ex. 2 at 5. The work rules identified eighteen rule violations that might be cause for disciplinary action, including discharge. Schroeder Aff., Ex. 3 at 21. The rules forbade, in part:

 
1) Punching another employee's time card, permitting another employee to punch out one's time card, altering or writing on time cards, or failing to punch one's time card in and out. Id. at 23.
 
2) Falsification of employment, production, or time records. Id.
 
3) Walking off the job and/or leaving the work area or the plant during one's scheduled working time without authorization from management. Id.

 Plair was aware that he was required to punch out his time card at the end of his shift, that he was not allowed to have another employee punch out his time card, and that he was not allowed to leave his work area or the plant during his shift without management authorization. Plair Dep. at 25-26, 28-29.

 On October 26, 1992, Plair punched in his time card at approximately 2:00 p.m. Rule 12(M) stmt., P 29; Rule 12(N) Resp., P 29. Plair's work shift was scheduled to end at 12:30 a.m. on October 27, 1992. Plair Dep. at 76. Plair states that at some time during the evening of October 26-27, he and Arco Jefferson, a co-worker, saw a bright light shining into the cherry processing area and went over to the seventh floor windows to look at the light. Id. at 225-228. The light appeared to be coming from two trains on railroad tracks near the plant. Id. at 227. Plair claims Jefferson later told him that a gold chain Jefferson was wearing had broken and fallen off while the two were looking out the window. Id. at 433-35.

 After Plair and Jefferson left the Brach plant, they drove in Jefferson's truck to a location behind the plant's east side. Plair Dep. at 276. As Plair and Jefferson drove alongside railroad tracks on the south end of the Brach plant, they were stopped by two Chicago police officers. Id. at 271-72. Plair told the police that he was going to pick up some rocks for his gutter; Plair did not mention Jefferson's gold chain. Id. at 278-79. The police officers told Plair and Jefferson that they were on private railroad property and that they could not drive on the property. Id. at 278. After the police departed, Jefferson and Plair drove to a 7-Up bottling plant and parked the truck. Id. at 302. Plair and Jefferson then returned to the area behind the Brach plant on foot. Id. After looking for the chain for approximately ten minutes, Plair and Jefferson walked back towards the 7-Up plant where the truck was parked. Id. at 303-304. On the way back, they were stopped by a 7-Up security guard. Id. at 307.

 At about 1:00 p.m. on October 27, 1992, Plair and Jefferson reported to work at Brach. Plair Dep. at 313. Plair and Jefferson were told by Frank Viero, a Brach security officer, that they would not be allowed to work that day. Id. at 313-314. After a meeting between Plair, Jefferson, Viero, and Autry Morrison, the first shift line manager in cherry processing, Morrison told Plair and Jefferson that they were suspended. Id. at 315-316.

 On October 27, 1992, John Klepper, Brach's Industrial Relations Manager, was notified that two employees had left the Brach plant early, without the permission of their supervisor, and later were found in back of the plant. Deposition of John Klepper ("Klepper Dep.") at 859. Klepper subsequently conducted an investigation into the circumstances surrounding Plair's alleged misconduct. Rule 12(M) stmt., P 59; Rule 12(N) resp., P 59. Klepper reviewed a time card bearing Plair's name; the card was punched out at 1:48 a.m. on October 27, 1994. Klepper Dep. at 798, 1154-58; Schroeder Aff., Ex. G. Klepper also reviewed a checker sheet from the night of October 26-27, 1992; the checker sheet reported that Plair had worked until the end of his shift at 12:30 a.m. Klepper Dep. at 1164, 1166. Frank Viero confirmed that the 7-Up security guards had stopped Plair and Jefferson behind the Brach plant. Klepper Dep. at 1216-17. Klepper asked Jefferson to provide proof of purchase of the gold chain; Jefferson did not provide the requested proof. Klepper Dep. at 1043-44.

 On October 30, 1992, Klepper met with Plair and a union representative. Rule 12(M) stmt., P 63.15; Rule 12(N) resp., P 63.15. During the meeting, Plair told Klepper that he had left his shift early to help Jefferson look for a gold chain, that he had not punched out, and that he and Jefferson had been stopped behind the Brach plant. Def. Ex. H. Plair also confirmed he told the police he was going to look for rocks to put in his gutter. Id.

 Klepper decided to terminate Plair. Klepper Dep. at 827. Klepper states that in reaching this decision, he considered that: (1) Plair left the work area before the end of his shift without permission; (2) Plair did not punch out when he left his work area and the plant; (3) Plair's time card showed a later punch out time; (4) someone recorded on the checker sheet that Plair had worked a complete shift; (5) Plair was stopped in an area behind the plant late at night; and (6) Plair and Jefferson gave inconsistent reasons for being behind the plant. Klepper Dep. at 872-873, 875, 877-78, 1043-44, 1341-42.


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