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POLLARD v. AZCON CORP.

October 3, 1995

DELESTER POLLARD, JOSHUA DAVIS, Plaintiff,
v.
AZCON CORPORATION, a division of Blue Tee Corp., Defendant.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the motion of Defendant Azcon Corporation ("Azcon") for summary judgment. For the following reasons, the motion is granted.

 I. BACKGROUND1

 Plaintiffs Delester Pollard ("Pollard"), Joshua Davis ("Davis") and James Turner ("Turner") filed suit in federal court alleging that Azcon wrongfully terminated them due to their race and ages in violation of Title VII and the Age Discrimination in Employment Act ("ADEA") respectively. Azcon operates a steel scrap yard in Hegewisch, Illinois ("Hegewisch Yard") . As part of its operation, Azcon dismantles rail cars, processes the scrap steel into small segments, and ships the scrap to steel foundries and mills for re-melting and recycling purposes.

 All three Plaintiffs are African-American males previously-assigned to the Hegewisch Yard under the direction and supervision of Joseph Wydajewski ("Wydajewski"), the yard superintendent. Prior to September 1992, Davis and Pollard worked as rail breaker operators, *fn2" and Turner worked as a burner. *fn3" On September 16, 1992, Wydajewski observed Davis and Pollard asleep in and near the rail breaker to which they were assigned. Wydajewski stated in a deposition that he had witnessed both Plaintiffs sleeping for five to ten minutes. Although both Davis and Pollard now deny that they were sleeping, they both admit that they were sitting down and not working. This was the first time Wydajewski had ever found a subordinate sleeping at the Hegewisch Yard. Wydajewski sent Davis and Pollard home and instructed them to attend a meeting in his office the next morning. Both Davis and Pollard left the job site without ever denying that they were sleeping.

 The next morning, Wydajewski met with Davis and Pollard. Both were given a written warning and a four-day suspension pending a final determination as to whether the two would be discharged from employment. Wydajewski then met with Richard Shure ("Shure"), a Vice President of Azcon, and both decided to terminate Davis and Pollard. On September 18, 1992, Azcon notified the two Plaintiffs that the suspension would be changed to a discharge effective September 23, 1992. The method of discharge utilized by Azcon was at all times in accordance with the Collective Bargaining Agreement between Azcon and the United Steelworkers of America AFL-CIO Local 5544-37 ("CBA"). At the time of their discharges, Davis was 55 years old and Pollard was 51 years old.

 When Azcon terminated Davis, it assigned Davis' former position to Turner. Prior to changing positions, on December 17, 1991, Turner, without giving prior notice, failed to report to work. As a result, Wydajewski gave Turner a written warning. On March 11, 1992, Turner reported to work late. Again, Turner failed to give prior notice and, therefore, received a second written warning. On March 17, 1992, Turner failed again to report to work, and did not give notice of his absence. He received a third written warning. In addition to the warning, Wydajewski gave Turner a one-day suspension without pay, and warned Turner that a similar subsequent violation could result in discharge. On October 9, 1992, less than a month after becoming a rail breaker operator, Turner again failed to report to work and properly notify his superior. As a result, Turner received a fourth written warning and a four-day suspension pending a discharge determination. Wydajewski then met with Shure, and both decided to terminate Turner effective October 19, 1992. Turner, who was 62 years old at the time of termination, contends that he did give notice on October 9, 1992, although he cannot remember to whom he gave the notice. In place of Turner, Azcon assigned Felipe DeHaro ("DeHaro"), a 45-year-old Hispanic male, as an interim rail breaker operator.

 On October 5, 1992, Pollard and Davis both filed grievance reports in accordance with the terms of the CBA. Both claimed they were suspended and discharged without just cause.

 In accordance with the CBA, both parties agreed to go before an impartial arbitrator. After a one-day hearing, the arbitrator found that Davis was terminated for just cause, but that Pollard was terminated unjustly. The arbitrator instructed Azcon to reinstate Pollard retroactively, with back-pay, after a thirty-day suspension without pay. Pursuant to the ruling of the arbitrator, Azcon reinstated Pollard in June 1993 with back-pay, retroactive to October 23, 1992, and with full seniority and benefits. In reliance on the arbitrator's decision, Azcon did not reinstate Davis.

 On September 25, 1992, Davis and Pollard filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC"). On October 22, 1992, Turner filed a Grievance Report pursuant to the CBA, contending that his discharge was too severe a penalty. On December 17, 1992, Turner filed a Charge of Discrimination with the EEOC. After receiving the requisite "Right to Sue" letter from the EEOC, the three Plaintiffs jointly filed the Complaint on June 11, 1993.

 In their Complaint filed with this court, Plaintiffs state that they were repeatedly subjected to the following race and age-based slurs by Wydajewski: (1) "boy"; (2) "if you had the energy of whites, you'd be doing your jobs"; (3) "I will be a thorn in your side for the next 20 years. Someone is waiting for your job"; (4) "I don't want blacks running machines"; (5) "If you people want to be treated like kids, I'll treat you like kids"; (6) "Once I get rid of you old guys, I can get on with running this business the way I want." However, Plaintiffs' three deposition witnesses testified that they never heard Wydajewski make any age or race related comments. All three witnesses were of Hispanic descent. In addition, Azcon deposed two African-Americans, both over the age of 40, and both of whom Wydajewski hired. Both deponents stated that they never heard Wydajewski make any age or race based derogatory comments.

 As of September 16, 1992, just prior to the discharge of all three Plaintiffs, Azcon employed 29 people at its Hegewisch Yard. Of the 29 employees, and 22 (76%) were over the age of 40, 10 (34%) were over the age of 50. In 1994, Azcon employed 27 people, 20 (74%) of whom were over the age of 40, and 8 (30%) of whom were over the age of 50. Wydajewski hired only four employees while acting as yard superintendent: Dan Young, a 51-year-old African-American; Mack Cooper, a 45-year-old ...


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