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November 12, 1996


The opinion of the court was delivered by: LINDBERG

 Plaintiff Fernando "Frank" Credo (Credo) alleges that his former employer, Zema Systems Corp. d/b/a Chicago Beverage Systems, Inc. (CBS), violated Title VII, the Age Discrimination in Employment Act and 42 U.S.C. § 1981 when it terminated him in November 1994. Credo, a Pacific Islander, was born in the Philippines and was 56 years old at the time of his termination.


 CBS is a wholesale distributor of beer and other malt beverages in the Chicago area. Kurt Menick, the controller of CBS' accounting department during Credo's tenure, hired Credo as a cashier in October 1984, when Credo was 46 years old. Menick promoted Credo to head cashier in 1986. There are four cashiers, including the head cashier, who are considered part of the accounting department. During the relevant period, the accounting department consisted of: the controller, the head cashier and three additional cashiers, inventory/accounts receivable clerk, accounts payable clerk, accounting supervisor and accounting clerk. The cashiers are required to work overtime on a regular basis because one of their job requirements is to wait for the beer delivery drivers to return from their routes. They often do not get off work until 1 or 2 a.m. The parties do not dispute that all cashiers, including plaintiff, received time and a half for overtime work. At least four cashiers other than plaintiff were Filipino.

 Plaintiff received two more promotions while at CBS; to inventory clerk in 1987 and to accounts payable clerk in 1989. Other than cashiers, employees in the accounting department generally work between 8 a.m. and 5 p.m. When plaintiff was promoted to inventory clerk, Menick told him that he should be able to complete his job duties without overtime being necessary. The non-cashier members of the accounting department did occasionally work late when Menick asked them to complete special assignments with time constraints. Menick and Andy Balonek, the accounting supervisor, testified that they did not get paid overtime when they worked late. Nelson Teruel, the inventory clerk, and Leo Rokicki, the accounts receivable clerk who replaced Credo as the accounts payable clerk, testified that they did receive overtime pay when they worked late. Menick, Balonek and Rokicki are white; Teruel is Filipino.

 Because he wanted to earn extra money, plaintiff asked Menick if he could work extra hours on a regular basis. Menick testified that he and plaintiff agreed that plaintiff would work after hours on special non-urgent projects for regular pay. The projects included increasing deposits and reviewing procedures in the cashiering department. Plaintiff agreed that he requested permission to work additional hours and that he told Menick the arrangement was fine with him. He denied that his agreeing to work at a straight time rate was voluntary because he felt that he was required to complete these special projects. Other than the cashiers, plaintiff was the only person in the accounting department who worked more than 200 hours of overtime a year. Rokicki testified that although the accounts payable position now includes more duties than it did when plaintiff held it, he works only an average of five to eight hours of overtime a month.

 The parties dispute to what extent plaintiff had supervisory control or responsibility over the cashiers. Plaintiff denies that he supervised the cashiers. Menick stated that officially, the cashiers reported to him or Andy Balonek, the accounting supervisor. Manuel Erese, the head cashier, oversaw the other cashiers' day-to-day duties. Menick admitted that the accounts payable clerk had no official role as to the cashiers but that unofficially the cashiers knew they could go to Credo with any problems. He stated that he sent Credo into the cashier box on a daily basis to resolve problems. Menick assigned Credo these responsibilities because he could speak the same dialect as the rest of the cashiers and Menick felt it was easier to communicate with the cashiers through Credo. Credo did not hire new cashiers, discipline or fire cashiers or set their schedules and he did not work in the same room as they did. Balonek described Credo's job as a mediator between the cashiers and Menick and that it was "probably due to nationality. Maybe a language barrier." He also stated that Credo's supervision of the cashiers was informal and that he supervised Credo and was present when Menick terminated him. Balonek and Menick were both unaware that Maloney had been cashing large checks.

 Three out of the four cashiers who were employed when Credo was terminated testified that he had not been their supervisor. *fn1" August Calimbas, a cashier who was promoted to head cashier after Erese was terminated, stated that Balonek had been his supervisor both before and after Credo was fired. He said that if Menick had instructions for the cashiers, Balonek would relay the information to them and Credo performed this duty only if Balonek was not available. Cashier Renato Zubieta stated that he never went to Credo if he was having a problem in the cashiering department, he went to Menick. The last cashier, Nore Borillo, stated that only Erese and Menick had authority over the cashiers.

 Several employees, including plaintiff and Menick, testified that they had heard the term "coconuts" used to refer to Filipino employees. Plaintiff stated that Menick called him the "head coconut" and that he himself referred to the cashiers as the "coconuts" in conversations with Menick. Menick stated he had not used the term "coconuts" and that plaintiff was the only person he remembered who commonly used it.

 On November 4, 1994, Menick asked Credo to look into a $ 50 debit memo that Menick had received from the bank. It indicated that one of the bills CBS had deposited was counterfeit. Credo left Menick's office and went to the cashiers' cage to look into the matter. He stated that when he asked Erese about the debit memo, Erese told him that the counterfeit bill had come from Terry Maloney, the inventory clerk. When plaintiff questioned why Maloney had given the cashiers a counterfeit bill, Erese told him that it was part of the cash that he had given Maloney when Maloney cashed a personal check at the cashier window. When Maloney discovered it, he returned it to the cashiers. At this point, Erese informed plaintiff that Maloney's personal check had been for $ 37,000 and that Maloney had been cashing checks at the window almost every day for several months. The amount of the checks had started out small and had grown progressively larger. Erese told plaintiff that the cashiers kept cashing Maloney's checks because they had never bounced. Plaintiff stated that before this conversation, he had not known about the large number of checks Maloney had been cashing. All the cashiers had been cashing checks for Maloney for about nine months. They had large amounts of cash available because on a busy night, the cashiers might collect as much as $ 70,000 in cash from the drivers.

 Approximately five minutes after he left it, Credo returned to Menick's office. Menick stated that plaintiff informed him that the preceding evening, Maloney had come into the office and cashed a personal check for $ 37,000. Credo did not tell Menick that he was present during this transaction. When Menick asked plaintiff why the cashiers had allowed Maloney to cash such a large check, plaintiff said that they had been doing it for months and that no check had ever bounced. Plaintiff stated that when Menick asked him why no one had told him of this, plaintiff told him that he had just found out about the checks himself.

 Menick told Credo to leave his office and he called Maloney in to discuss the situation. Ray Guerin, president of the company, was also present during this meeting. Maloney explained that because of personal financial problems, he had been floating checks for several months and had in that week alone cashed three checks for more than $ 30,000 each. Guerin and Menick suspended Maloney pending further investigation and had him escorted from the building.

 After the meeting with Maloney, Menick held a meeting with the cashiers and Credo and told them that they could not cash employees' personal checks that exceeded $ 200 without Menick's approval. He testified that an "understood" policy had always existed that employees were not allowed to cash checks for more than $ 200 at the cashier window. Calimbas stated that he was not aware of such a policy before the incident with the $ 37,000 check. Rokicki and Zubieta also testified that the policy was implemented after the incident. Although there is disagreement over whether an official policy existed that ...

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