1992 to June 15, 1996 ("Agreement"), Local 25 of the Service Employees International Union ("Union") represented the bargaining unit that included Siwik's job. Siwik was a Union member and he had served as a Union steward at the Center from 1981 to 1988 (S. 12(N) PP5-11).
In October 1994 Marion Mocarski ("Mocarski") worked with Siwik as a shipping and receiving clerk at the Center. Between 7:30 and 9 a.m. on October 5 Mocarski approached Siwik while he was at work unloading trailers for several warehouse dock lanes and "started fucking around," interfering with Siwik's work (Siwik Dep. Ex. 5
). Although no previous instances of hostility had occurred between the two, Siwik asserts that Mocarski was the unprovoked aggressor (Complaint P14; Siwik Dep. Ex. 5). For his part Mocarski reported in his loss prevention statement that Siwik attempted to hit him with a pipe during that initial encounter (Clash Aff. P13). Siwik claims that Mocarski's teasing and harassment continued throughout the morning, but no further physical confrontation occurred in the warehouse dock lanes (Complaint P15).
Later that same morning, between approximately 10 and 10:15 a.m., Siwik and Mocarski took a scheduled break in the Center employees' cafeteria. During the break Mocarski approached Siwik and requested an apology for the morning's incident (Siwik Dep. Ex. 5; Clash Aff. P13). Siwik repeatedly refused (Clash Aff. P13), and a 10 to 15 minute fight ensued (S. 12(N) P16). After the fight both Siwik and Mocarski were escorted by a security officer to the Center's Loss Prevention Office (S. 12(N) P18). Neither employee denied that he had been fighting, though each blamed the other for starting the fight (S. 12(N) P19). Siwik alleges that the fight began when Mocarski spit water in his face (Complaint P19). Mocarski reported that the fight began when Siwik hit him in the jaw (Clash Aff. P13). Because it was undisputed that they had been involved in a fight, Marshall Field suspended both of them pending further investigation (S. 12(N) P20).
Center's Manager of Employee and Labor Relations Edwin Clash ("Clash") conducted an investigation of the October 5 incident and learned that no supervisor had been present to witness the fight (S. 12(N) P26). Two hourly co-workers of Siwik and Mocarski who had been in the cafeteria at the time--Guy Altobelli ("Altobelli") and Gilbert Moreno ("Moreno"), both Union members--refused to provide Clash with any information (S. 12(N) PP27, 38). Unable to determine whether either employee had acted in self-defense, Clash conferred with Marshall Field's Director of Associate and Employee Labor Relations Paul Strickland ("Strickland") and its Manager of Labor Relations Henry Bechard ("Bechard") as to the investigation and the discipline to be imposed on Siwik and Mocarski. Clash, Bechard and Strickland decided to discharge both employees (S. 12(N) PP28-29).
Everyone agrees that on October 6 Clash telephoned Mocarski and Siwik separately and informed them that Marshall Field "did not tolerate violence in the workplace and had, therefore, discharged them both" (S. 12(N) P30). But Siwik swears that in a separate (presumably earlier) telephone call that Clash initiated on that same day, he provided Siwik with a different explanation for the impending termination. First Clash reported that Bechard and not Clash would soon be firing Siwik (Siwik Dep. 142). Next Clash said that Siwik's age, and not the fight, was the true reason for his termination (id.):
[Clash] told me that I wasn't being--I was not being fired for fighting, that I was being fired because I am over 40 years old and that they are hiring employees with lesser, with lower age and that at lesser pay because they can get two people to do the same amount of work that I do at the minimum wage, four twenty-five an hour, and that I am not being fired for fighting, and that they go to work and they get a tax break for hiring minorities. They get a tax break of some kind, see. But I wasn't being fired for fighting. I was being fired because I was over 40 years old.
For any Marshall Field employee within the bargaining unit who was subjected to any disciplinary measure (including firing, of course), the Agreement made a three-step grievance procedure available to review the employer's decision. If any such grievance was not resolved to Union's satisfaction in those proceedings, Union had a further option of requesting binding arbitration (Siwik Dep. Ex. 1).
On this occasion Union Staff Representative Willie Harris ("Harris") filed separate grievances on behalf of both Siwik and Mocarski after their discharges. On October 27, 1994 Marshall Field and Union conducted the third step of the Agreement's grievance procedure for both employees. On November 10 Marshall Field sent a letter notifying Union of its decision to deny both grievances and to uphold the Siwik and Mocarski firings (S. 12(N) PP31-32, 34, 36). Siwik submits nothing to suggest that he ever told anyone about Clash's explanation for his termination during any stage of the grievance process, and Marshall Field's statement that he did not do so (not itself evidence, but a representation made at its Mem. 4 n.2) has gone unchallenged by Siwik.
Union had conducted its own investigation of the incident before it pursued the grievance procedure. During that investigation Harris separately interviewed Altobelli and Moreno, the shipping and receiving clerks (and Union members) who had witnessed parts of the fight but who had refused to discuss it with Clash (S. 12(N) P38; Harris Dep. 43). Both Altobelli and Moreno told Harris that Siwik had started the fight and that Mocarski had simply attempted to defend himself (S. 12(N) P38). After discussing the matter with Union's attorney David Mathews ("Mathews"), Harris telephoned Clash in January 1995 to tell him (for the first time) of Union's independent investigation. Harris offered to withdraw Union's request to arbitrate Siwik's discharge if the company would reinstate Mocarski (S. 12(N) P39-40).
Clash then spoke with Bechard and Strickland about the new information supplied by Union, and the three decided that Mocarski should be reinstated in accordance with Marshall Field's policy of not discharging employees who fought "solely in self-defense" (S. 12(N) P41; Clash Aff. P11). Union sent a January 13, 1995 letter withdrawing its request to arbitrate Siwik's grievance, and on February 6 Marshall Field reinstated Mocarski following a four-month suspension without pay. Siwik remained terminated (S. 12(N) PP42-43).
Also on January 13, 1995, Siwik received a copy of a letter from Mathews to Harris explaining Mathews' recommendation not to arbitrate Siwik's grievance due to Siwik's role as aggressor in the altercation (S. 12(N) PP44-45). On that same day Siwik telephoned Harris to ask whether Union would overrule Mathews and take the case to arbitration. Harris told Siwik unequivocally that Union would not do so (S. 12(N) PP46). Siwik did not communicate with anyone else at the Union and took no further action to pursue his grievance (S. 12(N) P47).
On May 10, 1995 Siwik filed a charge of age discrimination with the Equal Employment Opportunity Commission ("EEOC"). On July 25 EEOC issued Siwik a right-to-sue letter. On October 20 Siwik filed the timely Complaint here (S. 12(N) PP48-49).
Count I: ADEA Claim
To succeed in his ADEA claim, Siwik must prove
"that he would not have been discharged 'but for' his employer's motive to discriminate against him because of his age" ( Mills v. First Fed. Sav. & Loan Ass'n, 83 F.3d 833, 840 (7th Cir. 1996), quoting Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th Cir. 1991)). There are now two essentially different frameworks though which an employee may prove his claim. One is the mixed-motives analysis announced in Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989), appropriate when both legitimate and illegitimate considerations play material roles in an adverse employment decision. By contrast, the familiar ping-pong approach dictated by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), as rearticulated in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), is appropriate when "either a legitimate or an illegitimate set of considerations led to the challenged decision" ( Price Waterhouse, 490 U.S. at 247 (emphasis in original)).
It should be noted at the outset that although Price Waterhouse, McDonnell Douglas and Burdine are all Title VII cases, their principles have been held applicable to ADEA cases as well ( Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 658 (7th Cir. 1991)(en banc)). Since then some uncertainty has been injected into the analysis by enactment of the Civil Rights Act of 1991 ("Act"), which partially overruled the application of Price Waterhouse to Title VII cases, so that in such cases an employer can now limit only the employee's remedy--rather than defeating liability outright--by showing that it would have made the same termination decision regardless of any demonstrated discriminatory motive (42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B)).
By its very terms, however, the Act applies only to cases where "race, color, religion, sex, or national origin" is the motivating factor for an employment decision, not to a case under ADEA (42 U.S.C. § 2000e-2(m)). Both because ADEA has not been similarly amended and because both parties to this litigation call upon the Price Waterhouse approach, it will be assumed for present purposes that the Act does not affect the analysis. To the same effect Doll v. Brown, 75 F.3d 1200, 1203 (7th Cir. 1996)(citations omitted) has said:
Congress has amended Title VII to convert mixed-motive cases to no-injury cases, but we may assume, without having to decide, that the Price Waterhouse approach survives in other types of discrimination cases.