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Anderson v. Follett Higher Education Group

May 24, 2007

MILTON R. ANDERSON, PLAINTIFF,
v.
FOLLETT HIGHER EDUCATION GROUP, DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Milton Anderson worked for Defendant Follett Higher Education Group ("Follett"), a nationwide operator of campus bookstores, for nineteen years. On September 17, 2002, Follett terminated Anderson from his position as Store Manager at Follett's Chicago State University bookstore. In this lawsuit, Anderson contends that Follett terminated him on the basis of his race and in retaliation for complaints about race discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., and 42 U.S.C. § 1981. Follett now moves for summary judgment and, for the reasons presented here, the motion is granted in part and denied in part.

FACTUAL BACKGROUND*fn1

I. Anderson's Employment with Follett

A. The Parties

Defendant Follett operates college and university bookstores nationwide. (Def.'s 56.1 ¶ 1.)

Each bookstore has a Store Manager who is responsible for the overall operation of the store. (Id. ¶ 2.) The Store Manager's duties include, inter alia, "driving" store sales, ensuring that customer service standards are met, maintaining store appearance, and ensuring proper accounting of assets, cash and inventory. (Id.) Store Managers are also responsible for hiring, firing, and disciplining employees. (Id.) The Store Manager reports to a Regional Manager, who in turn reports to a Group Vice President. (Id.) Follett transfers Store Managers and other management-level employees locally or throughout the country as they advance within Follett, either as a result of an employee's application for a new position or as business needs dictate. (Id. ¶ 3.)

Follett's bookstores are classified by sales volume as A, B, C, and D stores, with A stores having the highest volume. (Id. ¶ 4.) Each store's annual budget is based on the store's performance the previous year, marketing assumptions, and factors unique to the store's campus. (Id. ¶ 5.) Follett asserts that the Store Manager, Regional Manager, and Vice President collectively determine the store's budget each year.*fn2 (Id.)

Follett conducts yearly performance appraisals for its Store Managers. Prior to 2000, managers were rated in four categories: "People First" (evaluating interpersonal skills); "Managerial/Professional" (evaluating the manager's ability to manage the store in a professional manner); "Objectives" (evaluating whether the manager met objectives from the last review); and "Financial Soundness/Accountabilities" (evaluating the store's profitability, performance to budget, and level of "shrink"*fn3 ). (Id. ¶¶ 12-16.) At some point in 2000, the "Objectives" category was eliminated, (id. ¶ 12), although it appears to have been reinstated in 2002. (2002 Performance Appraisal, Ex. S to Appendix in Support of Defendant's Motion for Summary Judgment ("Appx.").) Within each category, managers are given a score of 1 through 5 for specific criteria, with 1 being the lowest rating, and an overall score for the category itself. (Def.'s 56.1 ¶ 17.) The overall performance rating is obtained by averaging the categories. (Id.) A rating of 4.6--5.0 is "Exceptional", 3.6--4.5 is "Above Standard", 2.6--3.5 is "Standard", 1.6--2.5 is "Below Standard", and 0--1.5 is "Unsatisfactory".*fn4 (Id. ¶ 18.) According to Follett, the overall rating is used to determine a manager's eligibility for a salary increase; managers may also be eligible for a bonus based on profitability factors.*fn5 (Id. ¶ 19.) Anderson, a black male, began working for Follett in August 1983 as a temporary clerk in the shipping and receiving department at the University of Illinois, Champaign-Urbana bookstore. (Id. ¶ 6.) He held a variety of staff and management positions within Follett, (id.), including the position of Store Manager at three campus bookstores: the Roosevelt University ("Roosevelt") store from December 1994 to October 1996, (id. ¶¶ 20, 23); the Virginia State University ("Virginia State") store from October 1996 to May 2000, (id. ¶¶ 23, 38); and the Chicago State University ("Chicago State") store from May 2000 until his termination on September 17, 2002. (Id. ¶¶ 38, 62.)

Anderson received annual wage increases throughout his employment,*fn6 and each time he was transferred from one location to another, it was either a lateral move with the same or better pay, or a promotion with a salary increase. (Id. ¶¶ 7, 8.) Anderson never was denied a position within Follett for which he applied. (Id. ¶ 9.)

Follett asserts that it has "long-standing anti-discrimination and anti-harassment policies that encourage employees to report claims of discrimination and harassment to management or to the Human Resources Department," and that Anderson was aware of such policies. (Id. ¶ 10.) Anderson disputes this, claiming that he was unaware of "any discrimination or harassment policy," and had never received any documentation or handbook regarding such policies. (Pl.'s 56.1 Resp. ¶ 10.) In his deposition, Anderson testified that he never received a handbook while working for Follett, but that he had received a "Code of Conduct" containing (unidentified) human resources policies. (Pl.'s Dep., at 19-20.) He further acknowledged that he became aware that Follett had an anti-harassment or anti-discrimination policy "at some point during [his] employment." (Id. at 21.) Although Follett attaches a copy of policies relating to discrimination and harassment to the affidavit of Director of Employee Relations Zawojski,*fn7 (Ex. 1 to Zawojski Aff., Ex. F to Appx.), and Zawojski indeed states that the policies are "long-standing," (Zawojski Aff. ¶ 6), Follett does not indicate when such policies went into effect, or how they are distributed to employees.

Follett also maintains a confidential reporting and investigation program called "MR. HEAT," which provides a toll-free number to an internal auditing agency. (Def.'s 56.1 ¶ 11.) Follett asserts that the program "encourages employees to make confidential complaints of discrimination (or any other improper management conduct)," (id.), but the program description (on a Follett web page titled "Policies-Workplace-Complaint Procedures") makes no explicit reference to discrimination. According to this description, "HEAT" stands for "Honest Employees Against Theft" and the program "is intended to be an effective deterrent against employee dishonesty, to safeguard the financial well-being of the company and it's [sic] employees, and to provide a more peaceful and pleasant atmosphere where our honest employees can work effectively." (Ex. 2 to Zawojski Aff., Ex. E to Appx.) The explanation also states: "[t]he program is also intended to bring to the Company's attention any harassment problems or improper management practices." (Id.) Thus, although "harassment" is mentioned, the MR. HEAT program appears primarily to encourage employees to report other employees for theft, rather than to lodge complaints of discrimination against supervisors.

Follett asserts that the MR. HEAT program is posted in each bookstore. (Def.'s 56.1 ¶ 11.) Anderson disputes this by asserting that an internal audit of the Chicago State store when he was Store Manager revealed that the MR. HEAT sign was absent.*fn8 (Pl.'s 56.1 Resp. ¶ 11.) It is undisputed, however, that Anderson was aware of the MR. HEAT program. (Pl.'s Dep., at 21.)

B. Roosevelt University Bookstore

Anderson began working as the Store Manager at the Roosevelt bookstore in December 1994, (Def.'s 56.1 ¶ 20), reporting to Follett Regional Manager Paul McKita. (Pl.'s Dep., at 66.) During his tenure, Anderson had a poor relationship with a white Roosevelt employee, Michael Durnil, who was Follett's campus contact there. (Def.'s 56.1 ¶ 23.) Durnil complained to Anderson, McKita, and Follett management about several issues involving Anderson, including that Anderson was improperly dressed and that Easter decorations at the bookstore were inappropriate.*fn9 (Pl.'s Dep., at 68-70.) When McKita confronted Anderson about Durnil's complaints, Anderson denied Durnil's allegations, (id. at 70, 132), and told both McKita and Follett Vice President of Operations and Sales Steve Pribyl that Durnil was "being racist." (Id. at 132.) McKita, Anderson acknowledges, "didn't act racist" and eventually took Anderson's side in the dispute. (Id. at 70, 131-32.) Nonetheless, according to Anderson, Pribyl told him that Follett needed to "save the [Roosevelt] contract." (Id. at 71-72, 134-35.) In October 1996, apparently because of Anderson's problems with Durnil, he was transferred to the bookstore at Virginia State.*fn10 (Def.'s 56.1 ¶23.)

C. Virginia State University Bookstore

Anderson began his tenure as Store Manager of the Virginia State bookstore in October 1996. (Id.) Anderson asserts, and Follett admits, that "the [Virginia State] community thought well" of him, and that no bookstore employees brought complaints against him while he was there. (Pl.'s 56.1 Addnl. ¶ 3.) In contrast to his rocky relationship with Durnil, Anderson asserts that he received a positive recommendation letter from Virginia State's Follett liaison. (Id.) In both 1997 and 1998, the Virginia State bookstore had the second highest profit increase in Follett's "Gold East Region", which compromised more than 100 Follett bookstores. (Id.)

During his time at the Virginia State Bookstore, Anderson occasionally had contact with Follett Group Vice President Bob Scholl. (Def.'s 56.1 ¶¶ 25, 27.) Anderson claims that Scholl made various statements that Anderson found offensive. (Id.) At one point, Anderson recalls, Scholl told him: "I don't care how long you have been with the company; if you're not performing you will be fired."*fn11 (Id. ¶ 25.) On another occasion, Scholl told Anderson to "get his ass into the meeting," and on yet another occasion told Anderson not to be late. (Id. ¶ 27.) Anderson believes these comments reflected racial animus; he conceded, however, that he never heard Scholl make any comments about his race or the race of anyone else. (Id.; Pl.'s Dep., at 125, 186.)

While at the Virginia State bookstore, Anderson reported to Follett Regional Manager Lynne Vaughan, who is white. (Def.'s 56.1 ¶ 24.) After an internal audit revealed accounting deficiencies at the store, Vaughan inspected the store on September 29 and 30, 1999. She then issued a written warning to Anderson listing six areas in which he needed to improve his performance and the performance of the store and its employees.*fn12 (Id. ¶ 28; Memo from Vaughan to Anderson of Sept. 30, 1999, Ex. N to Appx.) As areas requiring improvement, Vaughan specifically identified store appearance, merchandise assortment, textbook inventory, accounting operations, excess payroll hours, and the internal audit findings. (Def.'s 56.1 ¶ 28.) Anderson admitted in his deposition that he had problems satisfactorily completing required paperwork while at the Virginia State store, that he incurred late fees from vendors, that invoices were not getting to accounts payable on time, and that his store was occasionally messy.*fn13 (Id. ¶ 29; Pl.'s Dep., at 87-89.)

In December 1999, Vaughan completed an annual performance appraisal of Anderson. (Def.'s 56.1 ¶¶ 31-33.) Anderson rated a 3.4 in the "People First" category, a 2.75 in the "Managerial/Professional" category, a 2.3 in the "Objectives" category, and a 2 in the "Financial Soundness/Accountabilities" category, for an overall performance rating of 2.6 out of 5; this was at the bottom of the "standard" range of 2.6 to 3.5. (1999 Performance Appraisal, Ex. O to Appx., at 4.) Vaughan noted that Anderson "is a vital part of [Virginia State University]" and "is well liked on campus," (id. at 1), but she emphasized "poor store appearance," (id. at 2), and a failure to meet objectives in accounting practices and employee management. (Id. at 3.) Specifically, Anderson was rated a "1" ("Unsatisfactory") for failing to conduct daily performance meetings with employees and to reduce accounting fees, both of which had been listed as "objectives" on Anderson's previous review. (Id.) Vaughan also noted that Anderson "needs to be consistent in treating the employees-do not react to employee problems when you are angry with an employee." (Id. at 1.)

In an April 2000*fn14 performance appraisal, Vaughan gave Anderson a performance rating of 2.69 out of 5. (Def.'s 56.1 ¶ 34.) Vaughan again observed that Anderson's staff development and direction needed improvement, noting that he needed to meet with and set "clear goals" for his staff, that he "need[ed] to learn to trust people," and that he had failed to "develop employees into key positions in the store," including positions of text coordinator, accounting manager, and merchandise coordinator. (2000 Performance Appraisal, Ex. P to Appx., at 2.) She also commented that although Anderson had achieved an increase in sales, he had missed the budgeted sales goal. (Id.) In his deposition, Anderson admitted that during that review period he had indeed missed his sales goal and had had problems developing employees in the positions listed by Vaughan.*fn15 (Def.'s 56.1 ¶ 35; Pl.'s Dep., at 146-48.)

Anderson believes that the low appraisal ratings he received while at Virginia State were due to retaliation. (Pl.'s Dep., at 142-45.) Specifically, he believes that Vaughan gave him low ratings in retaliation for his complaints to McKita and Pribyl, during his tenure at the Roosevelt bookstore, about Durnil's alleged racism. (Id. at 144; Def.'s 56.1 ¶ 36.) As a result of those complaints, according to Anderson, "Bob Scholl was very critical to Lynne Vaughan about me." (Pl.'s Dep., at 144.) In his deposition, Anderson testified that "[Vaughan] said Bob Scholl was always on her case and she would also lose her job over this store if it did not get up to par." (Id. at 144.) Anderson admitted in his deposition that this is the only evidence he has that he received low appraisal ratings from Vaughan in retaliation for complaining about Durnil's alleged racism.*fn16

(Id. at 144-45.)

D. Chicago State University Bookstore

In May 2000, Follett transferred Anderson from the Virginia State bookstore to the store at Chicago State. (Def.'s 56.1 ¶ 38.) Follett's reasons for doing so are unclear; Follett asserts that it needed a new manager at Chicago State and "wanted to give Anderson a fresh start to improve his performance," (id.), but the court concludes that this assertion is unsupported.*fn17 (Id.) Nor does the record reveal who made the decision to transfer Anderson.*fn18 For his part, Anderson considered the transfer a "promotion" and a "positive move," (Pl.'s Dep., at 92), and the parties agree that he was amenable to returning to Chicago. (Id. at 83; Def.'s 56.1 ¶ 38.) He received a 10% pay increase as a result of the transfer, (id. at 93), and was "happy" with his salary at the Chicago State store. (Id. at 86.) He does not believe the transfer had anything to do with his race.*fn19 (Id. at 198; Def.'s 56.1 ¶ 38.) While at Chicago State, Anderson reported to Follett Regional Manager Theresa Humanicki, who in turn reported to Scholl. (Def.'s 56.1 ¶ 39.)

Sometime in the summer of 2000, Jennie Ward Robinson began working for Follett in its human resources department. (Def.'s 56.1 ¶ 40.) As a new hire, Robinson participated in an orientation and training program which included a tour of the Chicago State bookstore. (Id.) After this tour, Robinson contacted Follett Senior Vice President of Human Resources Audrey Southard. (Id.) Robinson told Southard that the store was in poor condition, and related several comments that Anderson had made in the course of their conversation during the tour. (Id.) Specifically, Anderson told Robinson that he wanted to "get promoted higher" but that "there were not African-Americans in like certain positions." (Id. ¶ 41; Pl.'s Dep., at 163.) He also told Robinson about the comments Scholl allegedly made to him when he was at the Virginia State store; that Humanicki had refused to grant his recent request for a two-week vacation; that his bookkeeper at the Roosevelt store had been terminated; that other managers had complained that they had not received their "just due"; and that he had served on Follett's Diversity Council.*fn20 (Def.'s 56.1 ¶ 41.)

The day after his conversation with Robinson, Southard called Anderson and invited him to lunch. (Pl.'s Dep., at 164.) At lunch, Anderson told Southard the same things he had told Robinson, and added that he believed Durnil had discriminated against him during his tenure at the Roosevelt store, but that Steve Pribyl "didn't care." (Id. at 165; Def.'s 56.1 ¶ 43.) Although the substance of Anderson's comments to Southard and Robinson is undisputed, the parties characterize them differently. Follett asserts that Anderson did not believe he was making a "complaint to Follett about discrimination" in either of the conversations. (Def.'s 56.1 ¶¶ 42, 43; Pl.'s Dep., at 164, 166.) Anderson responds that although he may not have been making a "formal" complaint, he was making an "informal" one because Follett "didn't have any mechanisms for receiving formal complaints."*fn21 (Pl.'s 56.1 Resp. ¶¶ 42, 43.) It is undisputed that following his lunch with Southard, Anderson had no further contact with Southard, did not use the MR. HEAT hotline, and did not complain to anyone else at Follett about racial discrimination.*fn22 (Def.'s 56.1 ¶ 44.)

On April 13, 2001, Humanicki issued a memo entitled "Written Warning for unacceptable performance" to Anderson that addressed "the mismanagement of accounts receivable and Bookstore Vouchers, unacceptable accounting procedures, and unsatisfactory financial performance" at the Chicago State bookstore. (Def.'s 56.1 ¶ 45; Memo from Humanicki to Anderson of April 13, 2001 ("April 2001 Warning"), Ex. Q to Appx., at 1.) Humanicki noted "ongoing performance concerns about day to day responsibilities as the Store Manager that are not currently at an acceptable level." (April 2001 Warning, at 1.) Specifically, Humanicki referred to (1) Anderson's "lack of urgency" in responding to and implementing Humanicki's initiatives and directives for the store; (2) an investigation, pursuant to an anonymous call placed to the MR. HEAT hotline, that "uncovered" Anderson's "[l]ack of professionalism" in areas including "[v]erbal communication, attitude and dress code", a "[l]ack of compliance to dress code policy attendance policy and store security", the "[a]dmittance of non-Follett employees in secure areas", and Anderson's "[l]ack of . . . presence on [the] sales floor and in the store"; and (3) "performance expectations . . . that require immediate improvement" in seven particular areas, including the timely completion of paperwork, billing and collection of accounts receivable, increasing presence on the sales floor and communicating goals to staff, transmitting "mark up and mark down figures" to Humanicki on a weekly basis, "[c]ommunicat[ing] clearly with department managers [and] colleagues," completing directives "by deadline dates", and complying with Follett policies with regard to "dress code, attendance and store security." (Id. at 1-2.) The memo concluded with a warning that "further violations of company policy or procedure will result in additional corrective action, up to and including the termination of your employment with Follet." (Id. at 2.)

In his deposition, Anderson admitted that prior to the April 2001 Warning, he had not always completed paperwork in a timely manner and had not always been present on the sales floor. (Def.'s 56.1 ¶ 46; Pl.'s Dep., at 150-51.) Follett asserts that Anderson "admits he may have worn ripped clothing to work." (Def.'s 56.1 ¶ 47.) In fact, when asked "Did you ever wear khaki pants to work with a hole in the seat?" in his deposition, Anderson answered, "I know I have torn my slacks working around [store] fixtures." (Pl.'s Dep., at 201.) Anderson admitted to dozing off while working, (Def.'s 56.1 ¶ 48), and although Anderson now disputes this, he indeed stated, "if I dozed off, maybe I did," when asked if he had ever slept in his office. (Pl.'s Dep., at 201.) Anderson also admitted that even after receiving the April 2001 Warning, he did not complete all paperwork in a timely manner and was not always present when needed on the sales floor.*fn23 (Def.'s 56.1 ¶ 49.)

Anderson claims, however, that when he discussed the April 2001 Warning with Humanicki, he informed her that the conditions at the Chicago State store were, in certain respects, due to circumstances beyond his control. (Pl.'s 56.1 Addnl. ¶ 11.) He asserts that for a one-month period at the beginning of his tenure at Chicago State in 2000 he did not have a bookkeeper on staff. (Id.) He also asserts, citing only to his own deposition testimony, that Follett Auditor Ted Dec made a $400,000 mistake during fiscal year end inventory, at some point before Anderson received the April 2001 Warning, (id.; Pl.'s Dep., at 153); the record does not appear to contain any further information about this alleged mistake. Anderson further asserts that book vouchers left over from the previous Store Manager were unpaid when Anderson started at the Chicago State store. (Pl.'s 56.1 Addnl. ¶ 11.) For its part, Follett does not deny these assertions; rather, it "admits that Plaintiff believed that [these] factors . . . existed" but maintains that they had no impact on Anderson's performance problems and are immaterial. (Def.'s 56.1 Addnl. Resp. ¶ 11.)

In May 2001, Humanicki rated Anderson as "Below Standard", with a score of 1.98 out of 5, on his annual performance appraisal for 2001. (Id. ¶ 50.) In the three-category format Follett had adopted since Anderson's last review, he received a 2.00 in "People First", a 1.93 in "Managerial/Professional", and a 2.00 in "Financial Soundness/Accountabilities". (2001 Performance Appraisal, Ex. R to Appx., at 4.) In her comments, Humanicki noted that the Chicago State store "had the must customer service complaints in the region for the last year," (Id. at 2-3), and observed, without elaboration, that the financial results for the 2001 fiscal year at the store were "unacceptable." (Id. at 4.) She stated that "[t]his review will be used as a written counseling due to the substandard performance and lack of follow up to the counseling delivered to [Anderson] on April 13, 2001."*fn24 (Id.) Anderson believes that his low rating on this performance review was the result of the comments he had made to Robinson and Southard. (Pl.'s Dep., at 168-69.)

Anderson's performance was not reviewed again until June 2002. (Def.'s 56.1 ¶ 52.) Follett does not explain why, in light of the performance deficiencies Humanicki identified in both the April 2001 Warning and the May 2001 performance appraisal, Follett did not review Anderson's performance again for more than a year. In the June 2002 appraisal, Humanicki again rated Anderson as "Below Standard", with an overall score of 1.89 out of 5. (Id.) His "People First" score slipped to 1.75, and his "Managerial/Professional" to 1.79. (2002 Performance Appraisal, Ex. S to Appx., at 5.) In her comments, Humanicki stated that Anderson "has been disrespectable [sic] on several occassions [sic] during conversations and meetings to his colleagues," and noted a specific incident, from April 25, 2002, where Anderson "had a confrontational encounter with the Regional Loss Prevention Manager regrading the Checkpoint system relocation." (Id. at 2.) Although Humanicki characterized Anderson as disrespectful, she also observed that he "has a tendency to avoid confrontation" with his employees and "makes excuses for why someone is performing poorly." (Id. at 2-3.) She further noted that the "environment . . . dress code, sense of urgency and overall operations" at the Chicago State store were "below standards," that "[Anderson] and the store team usually do not acheived [sic] goals and objectives" and often miss deadlines, that Anderson had missed conference calls, and that several accounts receivable were past due. (Id. at 2-4.) Although Humanicki acknowledged that Anderson had "showed improvement shortly after the [April and May 2001] counseling and review," she concluded by stating that "[t]his review will be considered a final writtening [sic] warning with a 90 Day Probation Period." (Id. at 5.)

On June 7, 2002, Humanicki sent Anderson a notice, informing him that "[a]s a result of your below standards performance rating you are being placed on performance probation for the period June 7, 2002 through September 5, 2002." (Def.'s 56.1 ¶ 54; Performance Probation Notice, Ex. T to Appx.) Six performance objectives were outlined for Anderson to meet during the probationary period, including improving communication with staff and the campus; providing leadership on the sales floor; reporting to work on time; showing respect to colleagues, other managers, and customers; appropriately addressing subordinates' performance issues; and complying with company audit and accounting policies. (Def.'s 56.1 ¶ 55.) Humanicki asked Anderson specifically to conduct weekly staff meetings and submit both an agenda and an e-mail recap of those meetings to Humanicki and to Scholl; to follow correct call-in procedures if he would be absent from work; to rewrite performance reviews for seven employees; and to "review" the results of a March 2002 audit and "send recap out [sic] Audit Action Plan that will be implemented." (Performance Probation Notice, Ex. T to Appx.) The notice warned Anderson that if he did not satisfactorily meet the outlined performance objectives during the probationary period, his employment would be terminated. (Id.)

When asked about Humanicki's appraisals in his deposition, Anderson admitted that he had missed deadlines and conference calls, (Pl.'s Dep., at 171, 174); that he indeed had had a confrontation over the phone with loss prevention manager Candy Stoll in April 2002, in which he disagreed with her decision to relocate security gates to a new store location while the current location was still operating, (id. at 171-72); that he had not disciplined an employee when he should have, (id. at 173); and that he had past-due accounts receivable.*fn25 (Id. at 174.) He also admitted that prior to the probationary notice, he had occasionally failed to follow call-in procedures, (id. at 179), and that during the probationary period, he occasionally failed to submit the required agenda and e-mail recap for staff meetings. (Id. at 178; Def.'s 56.1 ¶ 57.)

Anderson asserts that Follett's written employee policies do not have any "guidelines or wording for placing an employee on probation." (Pl.'s 56.1 Addnl. ¶ 18.) According to Follett, its policies do provide for "progressive discipline," which includes probation. (Def.'s 56.1 Addnl. Resp. ¶ 18.) Both parties cite to a Follett document titled "General Guidelines for Progressive Discipline, Suspension, and/or Involuntary Termination" (the "Guidelines"), which, in a section labeled "Progressive Discipline," states that as part of a procedure designed "to ensure an employee is not terminated without a complete and objective assessment of all the facts", discussions and "counseling sessions" between supervisors and employees "are to be documented" with an identification of "the problem area", "[s]pecific ways to improve performance," and a "[d]eadline for improvement." (Guidelines, Ex. 4 to Humanicki Dep., Pl.'s Vol. 1 Ex. J.) The document does not contain the term "probation," and when Humanicki was asked in her deposition whether Follett has "any guidelines or procedures regarding placing an employee on probation," she answered, "Not on this particular document." (Humanicki Dep., at 33.) She also testified, however, that "[t]he probationary period is generally used as part of progressive discipline." (Humanicki Dep., at 32.)

E. Anderson's Termination

Anderson's probation ended on September 5, 2002. (Termination Notice, Ex. U to Appx.) On September 17, 2002, Follett terminated Anderson for failure to meet the outlined performance objectives during the probationary period. (Id.; Def.'s 56.1 ¶ 62.) Specifically, in a termination notice addressed to Anderson, Humanicki stated that his floor presence had not improved; that there had been many (unidentified) customer service complaints; that "the disrespectful behavior toward colleagues, managers and customers continued to surface"; that Humanicki had witnessed "shouting matches with raised voices and negative attitude"; that Anderson had continued to tolerate unacceptable employee behavior; and that Anderson had failed to "follow up" in response to a March 2002 internal audit. (Termination Notice, Ex. U to Appx.) The notice informed Anderson that he was being terminated because, based on a "review of [his] past performance, along with the unacceptable results during the Performance Probation period," he had "not shown improvement to a satisfactory level of performance." (Id.)

Anderson disputes Follett's assertion that he did not meet the outlined objectives during the probationary period. (Pl.'s 56.1 Resp. ¶ 62.) To support his denial, he asserts that he had increased both sales and profits, and decreased inventory "shrink" during 2002. (Id.) Anderson does not expressly assert that he met any of the specific performance objectives that were outlined for him to meet during the probationary period, none of which related to the financial performance of the Chicago State bookstore. The court notes, however, that in the Termination Notice, Humanicki noted that Anderson had in fact sent the requested meeting agendas and e-mail recaps each week, and had indeed rewritten performance appraisals as requested. (Termination Notice, Ex. U to Appx.) The notice made no mention of Anderson's attendance issues.

Follett does not explain who made the decision to terminate Anderson. Humanicki testified in her deposition that she decided to terminate him, (Humanicki Dep., at 113-14), and Scholl referred in passing to the termination as "[Humanicki's] decision," (Scholl Dep., Ex. B to Appx., at 124), but it appears that she made the decision in consultation with Zawojski and Scholl. Citing to Zawojski's affidavit, Follett asserts that in or around May 2002, Humanicki had begun consulting with Zawojski and Scholl regarding Anderson's "continued performance problems." (Def.'s 56.1 ¶ 61; Zawojski Aff. ¶ 14.) E-mails attached to Anderson's LR 56.1 materials reveal more specifically the nature of these consultations. In an e-mail dated May 2, 2002, Humanicki recounted several incidents involving Anderson from March and April 2002, explained that this is "just the tip of the iceberg," and asked Zawojski and Scholl for "help in guiding me in order for me to terminate him." (E-mail from Humanicki to Zawojski and Scholl of May 2, 2002, Pl.'s Vol. 2, at D0837-40.) The incidents that Humanicki described involved Anderson's disagreements with Follett personnel over security procedures, including the phone "confrontation" with Stoll in April 2002; instances where Humanicki and/or Stoll had tried to contact Anderson at the store, but he was absent; and Anderson's "blatant" disregard of Humanicki's request that he send his employees' performance appraisals to her, rather than to Follett central management. (Id.)

In response to Humanicki's request for guidance, Zawojski and Scholl had advised Humanicki to "place [Anderson] on corrective action for unacceptable performance," and they together continued to review Anderson's performance during the probationary period. (Def.'s 56.1 ¶ 61.) In an e-mail dated August 9, 2002, Humanicki again sought "advice from both [Zawojski] and [Scholl]"; noting that Anderson's "performance has not improved" 60 days into his probation, she asked "Do we wait or cut him loose now?" (E-mail from Humanicki to Zawojski and Scholl of August 9, 2002, Pl.'s Vol. 2, at D0831.) After the end of Anderson's probationary period on September 5, 2002, Humanicki met with Zawojski to discuss Anderson's termination and e-mailed her a draft of a termination notice. (E-mail from Humanicki to Zawojski and Scholl of September 12, 2002, Pl.'s Vol. 2, at D0833.)

At Humanicki's request, police were present at the scene of Anderson's termination on September 17, 2002. (Pl.'s 56.1 Addnl. ¶ 20.) Zawojski testified in her deposition that this is appropriate procedure in circumstances where an employee may become belligerent or disruptive. (Zawojski Dep., at 116.) Scholl accompanied Humanicki to the Chicago State store for Anderson's termination; in his deposition, he explains that he did so in order to "support [Humanicki] and her decision," and that he supervised Anderson's removal of his personal belongings to prevent him from taking Follett property. (Scholl Dep., Ex. B to Appx., at 123-25.) Although Anderson asserts that Scholl blocked a video monitor at Anderson's desk so he could not see police waiting at the front door, (Pl.'s 56.1 Addnl. ¶ 20), this assertion is unsupported; Anderson cites only to a portion of Scholl's deposition in which Scholl expressly denied having done so. (Scholl Dep., at 128.)

Brenda Robinson, a black female, replaced Anderson as Store Manager of the Chicago State store. (Def.'s 56.1 Reply ¶ 62; Pl.'s 56.1 Resp. ¶ 68.) Humanicki testified in her deposition that Greg Hartoonian, who is white and had previously worked at another company with Humanicki, interviewed for the ...


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