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ZAKARAS v. UNITED AIRLINES

November 9, 2000

RAY ZAKARAS, PLAINTIFF,
V.
UNITED AIRLINES, INC., DEFENDANT.



The opinion of the court was delivered by: Keys, United States Magistrate Judge.

  MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. Ray Zakaras has sued Defendant United Airlines, Inc. ("United") for quid pro quo sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, as amended, ("Title VII"), 42 U.S.C. § 2000e et seq. (West 2000), age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (West 2000), and perceived disability discrimination under the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (West 2000). Additionally, Mr. Zakaras has sued for breach of contract under Illinois common law. For the reasons set forth below, the Court grants Defendant's Motion for Summary Judgment on the quid pro quo sexual harassment, retaliation, age discrimination and breach of contract claims, but denies Defendant's Motion for Summary Judgment for perceived disability discrimination.

FACTS

I. Background on Mr. Zakaras

Mr. Zakaras began working for United in 1964 as a Ramp Serviceman in the O'Hare Ramp Services Department. In 1966, he took a miliary leave of absence for the Vietnam War, and in 1969, after receiving an Honorable Discharge, returned to his position at United. In 1971, United upgraded him to a Cargo Operations Planner Position, and in 1973, United promoted him to a management position, Ramp Services Supervisor, in the Ramp Services Department at O'Hare. (Plaintiff's Statement of Material Facts ["Pl.'s SMF"] ¶ 1.) Mr. Zakaras remained in this management position until his demotion, which is the subject of the present controversy.

It is undisputed that, in Mr. Zakaras' thirty-six years of employment with United, he has never consumed any alcohol at work, has never been under the influence of alcohol at work, and has never been intoxicated off the job while in uniform or while on company property. (Pl.'s SMF ¶ 3.) Furthermore, prior to his demotion, he had never been disciplined in all the years that he worked for United. (Pl.'s SMF ¶ 4.) Additionally, Mr. Zakaras never received any criticism from anyone regarding how he supervised employees who reported to him. (Pl.'s SMF ¶ 11.)

II. The CLT Conference

From August 19 to August 22, 1996, Mr. Zakaras and a group of over seventy United employees attended United's CLT program at the Hickory Ridge Conference Center. CLT was designed to teach supervisory-level employees how to effectively implement changes in United's corporate culture. (Defendant's Statement of Uncontested Facts ["Def.'s SUF"] ¶ 9.)

As an attendee at the conference, Mr. Zakaras found parts of CLT objectionable, and in violation of United's policies against sexual harassment and discrimination. (Pl.'s SMF ¶ 44.) First, Mr. Zakaras contends that the "web" and "patio block" exercises at CLT were sexually offensive and violated United's sexual harassment/zero touching policy. (Plaintiff's Response to Defendant's Statement of Uncontested Facts ["Response to Def.'s SUF"] ¶¶ 9-10.) In the "web" exercise, each group lifted and passed an employee through a web of ropes without touching the ropes, and in the "patio block" exercise, each group stood together on a series of blocks for a short period of time. (Def.'s SUF ¶ 10; Pl.'s SMF ¶ 41.) Mr. Zakaras maintains that it was necessary to touch the buttocks of individuals during the "web" exercise, and that the "patio block" exercise involved bodily contact against employees' genitals and breasts. (Pl.'s SMF ¶ 41.) United contends, however, that it was not necessary to touch the buttocks, breasts, genitals, or any private parts of employees during any CLT exercise. (Defendant's Response to Plaintiff's Statement of Material Facts ["Response to Pl.'s SMF"] ¶ 41.)

In addition to these exercises, Mr. Zakaras found certain remarks by Gerald Greenwald, United's Chief Executive Officer in 1996, disturbing. At CLT, Mr. Greenwald spoke to the CLT attendees at dinner about changes in United's corporate culture, and according to Mr. Zakaras, made anti-ageist comments during his speech. (Pl.'s SMF ¶ 48.) Specifically, Mr. Zakaras contends that Mr. Greenwald singled out older management employees by stating, "you older guys will be gone from this company by next March . . . especially you older guys . . . you're not going to be here." (Pl.'s SMF ¶ 48.) United denies that Mr. Greenwald made any negative remarks about older employees at CLT. (Response to Pl.'s SMF ¶ 48.)

As a result of the two exercises and Mr. Greenwald's comments, Mr. Zakaras informed Dick Allen, his CLT supervisor and CLT Team Facilitator, and Lynda Martin, the United employee in charge of CLT, that the "web" and "patio block" exercises, in his opinion, violated United's sexual harassment policy. (Pl.'s SMF ¶ 58.) Mr. Zakaras also told Mr. Allen that Mr. Greenwald's comments were offensive, and likely in violation of United's anti-discrimination policy. (Pl.'s SMF ¶ 58.) According to Mr. Zakaras, Mr. Allen and Ms. Martin informed him that his objections were valid, and that the CLT facilitators would review them at their next meeting. (Pl.'s SMF ¶ 58.) Mr. Zakaras maintains, however, that no investigation was ever done, and worse, United, eventually, retaliated against him for expressing his concerns.

It is undisputed that United served and paid for alcoholic beverages during the CLT conference. (Pl.'s SMF ¶ 46.) Mr. Zakaras admits that on the night in question,*fn2 he consumed three or four beers at dinner, and then six or seven more in the Arbor Bar at Hickory Ridge following dinner. (Def.'s SUF ¶¶ 13-15.) Mr. Zakaras explains, however, that the last six or seven beers consumed by him occurred after the CLT conference concluded for the day, where employees were free to do what they wanted in their private time.*fn3 Mr. Zakaras further maintains that many United employees were intoxicated at the bar that evening, and moreover, that United knew that many of its employees tended to become inebriated at these conferences, but still continued to sponsor and pay for alcohol.*fn4 (Pl.'s SMF ¶¶ 47, 50-51.)

At the Arbor Bar that evening, Mr. Zakaras, admittedly, made some inappropriate comments to various female United employees. For instance, Mr. Zakaras told Pat Boquist, a female Customer Service Supervisor at United, that he had left the dinner at CLT early, and went to the bar, because he "didn't want to hear anything Greenwald had to say," and that he had "worked at the company for 30 years" and "wasn't about to change now." (Def.'s SUF ¶¶ 17-18.) Mr. Zakaras, then, repeatedly asked Ms. Boquist if she was "happily married", and at one point, put his hand on her leg. (Def.'s SUF ¶¶ 19-20.) Mr. Zakaras also asked Sharon Burbank, another supervisor at United who was present at the Arbor Bar that evening, whether she was "happily married," and at one point, commented about how nice the ass was of one of the female CLT participants. (Def.'s SUF ¶¶ 22-23.)

III. The Investigation

When David Schneider,*fn5 Mr. Zakaras' immediate supervisor and Manager of United's Ramp Services Department, learned of Mr. Zakaras' conduct at CLT, he began an investigation and received written statements from Ms. Boquist, Ms. Burbank, and Ms. McNeill (another United employee who was at the Arbor Bar that evening).*fn6 (Def.'s SUF ¶ 25.) In Ms. McNeil's statement, she said that she had not felt threatened by Mr. Zakaras' behavior. (Pl.'s Evid. Mat. at Ex. 9.) Moreover, Ms. Boquist wrote that, while Mr. Zakaras at one point had touched her leg, she attributed the touching to a "drunken movement" and not a sexual advance. (Pl.'s Evid. Mat. at Ex. 10.) Ms. Burbank wrote that it was difficult to even hear what Mr. Zakaras was saying because of the noise and music in the bar. (Pl.'s Evid. Mat. at Ex. 12.) Mr. Schneider testified that he had no reason to disbelieve the women's statements. (Schneider's Dep. at 129-131, 133.)

On September 20, 1996, Mr. Schneider met with Mr. Zakaras and asked him to address four issues in writing: (1) whether he touched someone's leg at the bar; (2) whether he asked females harassing questions; (3) whether he walked out on Mr. Greenwald's speech; and (4) whether he engaged in inappropriate behavior by drinking in excess at CLT. (Def.'s SUF ¶ 26.) Mr. Schneider informed Mr. Zakaras that he was to bring his written statement, answering these questions, to another meeting on September 25, 1996.*fn7 (Def.'s SUF ¶ 27; Pl.'s SMF ¶ 59.)

On September 25th, Mr. Zakaras met with Mr. Schneider and Marlon Crawford, a People Services Representative at United, and turned in his written statement, which denied any improper behavior at CLT. (Def.'s SUF ¶ 29-30.) Mr. Zakaras wrote, "I should not be forced to accept the views of any other person, including Mr. Greenwald, if I do not agree with what is presented," and, "I believe that I can retain the right to free expression as to what impact the curriculum shall have on my professional career." (Def.'s SUF ¶ 28.) Mr. Zakaras also told Mr. Schneider and Mr. Crawford that he saw some merit to the CLT program, but objected to the manner in which it was being taught (Pl.'s SMF ¶ 88), and that he felt that certain "exercises" at CLT were inconsistent with United's sexual harassment policy, because they required the touching of females. (Def.'s SUF ¶ 32.) Mr. Zakaras further explained that he had momentarily left Mr. Greenwald's speech at CLT, because he had received a 911 page from his son who lived with him, complaining that his prearranged ride had not shown up. (Pl.'s SMF ¶¶ 49, 69.) Mr. Zakaras continued, however, that, under the circumstances, he did not have to leave CLT to pick up his son, and consequently, returned to the CLT speech without stopping at the hotel bar. (Id.) Mr. Zakaras also claims that, at this meeting, he was informed for the first time that United was investigating him for sexual harassment. (Pl.'s SMF ¶ 63.)

Mr. Zakaras characterizes the September 25th meeting as an "unannounced fact-finding investigation" where he was forced to answer personal questions not relating to his work performance.*fn8 (Pl.'s SMF ¶ 39.) According to Mr. Zakaras, at the September 25th meeting, Mr. Crawford and Mr. Schneider asked him inappropriate questions, such as whether he had a drinking problem, how much alcohol he drank at night at home, and how often he drank.*fn9 (Pl.'s SMF ¶¶ 38, 76.) Mr. Zakaras maintains that he did not voluntarily offer information about his personal drinking habits or any alleged "drinking problem." Instead, he disclosed information about his personal drinking habits during non-work time only in response to Mr. Crawford and Mr. Schneider's extremely personal questions about his private life. (Pl.'s SMF ¶¶ 39, 76.) Indeed, according to Mr. Zakaras, he felt compelled to answer their questions, admitting that in the evenings, during his private time, he was drinking more than at other times in his life, because of the stress of his ongoing divorce. (Pl.'s SMF ¶ 77.) Mr. Zakaras also testified that he turned in a second written statement, acknowledging that he had a drinking problem, because Mr. Schneider and Mr. Crawford's words and demeanor indicated that his first written statement was unacceptable. (Pl.'s SMF ¶ 79.) Furthermore, Mr. Zakaras contends that Mr. Schneider ordered him to go to United's EAP, and personally walked him to an EAP Representative to ensure compliance.*fn10 (Pl.'s SMF ¶ 38.)

United, in contrast, insists that Mr. Zakaras voluntarily brought up his drinking problem at the September 25th meeting, and that Mr. Schneider did not ask him personal questions about his drinking habits. (Response to Pl.'s SMF ¶ 77.) Furthermore, United contends that Mr. Zakaras voluntarily asked, and received permission, to withdraw his initial statement and submit a new one. (Def.'s SUF ¶ 31.) Accordingly, later that day, Mr. Zakaras gave Mr. Schneider a revised statement, in which he wrote that he could not recall some of his conduct at CLT because he was "drinking alcohol to extreme," that his excessive drinking was no excuse for his behavior, and that he felt that drinking was a problem with which he had to deal. (Def.'s SUF ¶¶ 35-36; Pl.'s Evid. Mat. at Ex. 16.) Mr. Schneider also insists that he only believed that Mr. Zakaras had a drinking problem, because that was what Mr. Zakaras had told him in his second written statement. (Schneider's Dep. at 229.) Finally, United denies that Mr. Schneider or Mr. Crawford ordered Mr. Zakaras to go to EAP, or walked him down to an EAP Representative. (Response to Pl.'s SMF ¶¶ 78, 80.)

During the ensuing investigation of Mr. Zakaras' behavior, Diane Zombo, United Air Lines Director for People Services (also called Director of Human Resources), met with Mr. Crawford*fn11 and recommended that Mr. Zakaras not be removed from his Ramp Services management position, because the alleged infraction could be considered a one-time event, Mr. Zakaras had good evaluations, there had not been any "alignment" discussion with Mr. Zakaras,*fn12 United had a problem with other O'Hare management personnel being intoxicated at conferences, and the alleged incident did not occur at work. (Pl.'s SMF ¶ 16; Crawford's Dep. at 183-90.) Ms. Zombo, instead, recommended that Mr. Zakaras either be given a stern warning and/or possible random drug testing.*fn13 (Crawford's Dep. at 190.)

On September 30, 1996, Mr. Crawford and Mr. Schneider met to discuss how to handle the situation concerning Mr. Zakaras' inappropriate behavior at CLT. At this meeting, Mr. Crawford relayed his conversation with Ms. Zombo to Mr. Schneider, specifically informing Mr. Schneider that Ms. Zombo felt that Mr. Zakaras should not be removed from his supervisory position. (Schneider's Dep. at 209-10.) In fact, Mr. Schneider's own notes from his September 30th meeting with Mr. Crawford state, "Could be considered one-time event. He admitted being drunk every night. Good evals. Have not had alignment discussion. There has been a drinking problem. Other Chicago O'Hare people drunk. None of these occurred at work." (Schneider's Dep. at 210.) While Mr. Schneider did not have to follow Ms. Zombo's recommendation, Mr. Crawford admitted in his deposition that Mr. Zakaras' case is the only instance he can recall where a manager did not follow Ms. Zombo's recommendation. (Crawford's Dep. at 17-18.) Furthermore, Mr. Schneider admitted that he had been instructed to seek guidance from Human Resources before removing a Ramp Services supervisor from his or her position. (Schneider's Dep at 42-43.) Finally, at this meeting, Mr. Crawford informed Mr. Schneider about Ms. Remer's concerns regarding other O'Hare management personnel being intoxicated at various CLTs. (Pl.'s SMF ¶ 53.)

Mr. Crawford, at Ms. Zombo's request, also instructed Mr. Schneider to obtain a written statement from Mr. Allen, Mr. Zakaras' CLT Facilitator, about Mr. Zakaras' behavior at the CLT conference. (Schneider's Dep. at 204.) Accordingly, Mr. Schneider spoke to Mr. Allen on the telephone, where Mr. Allen informed Mr. Schneider that Mr. Zakaras had been "cooperative, honest, and supportive" at CLT, and that Mr. Zakaras had retracted some of his disparaging comments about CLT, such as it was a waste of money and a bunch of bull. (Pl.'s SMF ¶ 87; Schneider's Dep. at 206-07.) After receiving this information from Mr. Allen, however, Mr. Schneider did not document it in a written statement, as requested by Ms. Zombo, testifying that after he spoke to Mr. Allen, he "didn't feel Dick Allen and his comments would have a huge bearing on the results of my investigation."*fn14 (Schneider's Dep. at 208.)

IV. United's Employee Assistance Program

As a benefit to its employees, United offers an Employee Assistance Program, where employees may meet with a representative to obtain advice about personal problems such as alcoholism. United's EAP is in its Medical Department, and the EAP Representative has a duty to assess and evaluate employees who come in for personal problems, and to help them decide on a plan for dealing with their problems. (Pl.'s SMF ¶ 28.) According to the EAP's Management Guide, United's EAP is voluntary and an "employee's refusal to use the EAP is not in itself a cause for disciplinary action." (Pl.'s Evid. Mat. at Ex. 2, p. 2.) The Management Guide also states that discipline is not to be used as "retribution for refusal to use the EAP." (Id.) Additionally, according to Kenneth Fox, an EAP Representative who saw Mr. Zakaras, an employee has the right for third persons (such as Mr. Schneider) not to know whether the EAP representative has made a formal recommendation for help. (Fox's Dep. at 66-67.) Indeed, communications between an employee and his or her EAP Representative are privileged and confidential, and the EAP representative is not permitted to make recommendations concerning discipline, nor influence the employee's supervisor concerning discipline. (Pl.'s SMF ¶ 31.) As stated in the Management Guide, the EAP and the disciplinary process are separate. (Pl.'s Evid. Mat. at Ex. 2, p. 2.)

According to Mr. Fox, United's managers should refrain from asking an employee if he has a drinking problem, how much he drinks at home, if he is getting "help" for an alcohol problem, or if he is going to Alcohol Anonymous ("AA") meetings. (Fox's Dep. at 16-17, 101-103.) Furthermore, Mr. Fox testified that it was United's policy in 1996 that an employee could not be terminated for being an alcoholic, or for ...


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