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Gildenstern v. Abbott Laboratories

November 2, 2009

MICHAEL GILDENSTERN, PLAINTIFF,
v.
ABBOTT LABORATORIES, DEFENDANT.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Michael Gildenstern ("Gildenstern") has brought a four-count Complaint against his former employer Abbott Laboratories ("Abbott"), charging that Abbott discriminated against him by imposing disparate discipline*fn1 because of his race (Caucasian) and national origin (United States of America) in violation of Title VII of the Civil Rights Act of 1991 ("Title VII," 42 U.S.C. §§2000e to 2000e-17) and 42 U.S.C. §1981 ("Section 1981"). Abbott has moved for summary judgment on all of Gildenstern's claims under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, Abbott's motion is granted.

Summary Judgment Standard

Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But a non-movant must produce more than "a mere scintilla of evidence" to support the position that a genuine issue of material fact exists (Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)). Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Factual Background

What follows is a summary of the facts, viewed of course in the light most favorable to non-movant Gildenstern.*fn2 Abbott is a health care company that maintains a campus in North Chicago, Illinois (A. St. ¶¶1-2). Between August 1990 and November 2008 Gildenstern worked at the carpenter shop on Abbott's North Chicago campus as a "senior trades person," doing building maintenance and construction work (A. St. ¶¶5-6; G. St. ¶6). From 2001 through his termination, Gildenstern also performed "scheduler/planner" duties (which involved scheduling work orders), but he never received the position title "scheduler/planner" and Abbott never increased his base pay grade (A. St. ¶10; G. St. ¶¶10, 73). From 2005 until his termination Gildenstern's immediate supervisor was section manager Larry Heg ("Heg"), who in turn reported to Terry Ketterling ("Ketterling"), manager of Lake County maintenance (A. St. ¶¶15-16). Throughout Gildenstern's employment Abbott's relevant disciplinary policies were (1) a policy providing that dishonesty and theft are grounds for termination and (2) Principle 10 of its Code of Business Conduct, which states that Abbott employees "must safeguard Abbott's assets against loss, damage, carelessness, waste, misuse and theft" (A. St. ¶¶21-22, 25).

On August 25, 2008*fn3 Global Security (Abbott's investigative division) received a telephone call from Gildenstern's ex-wife Mary Nighbor ("Nighbor") about locks and keys possibly belonging to Abbott (A. St. ¶26, G. Resp. ¶26). On August 27 investigator William Munts ("Munts") spoke to Nighbor, who told him that several years earlier Gildenstern had installed a lockset at her house, had given her a padlock and had provided her with keys marked "Abbott Do Not Duplicate" (A. St. ¶29; G. Resp. ¶29).*fn4

Munts asked Nighbor to send him photographs of the lockset, padlock and keys (A. St. ¶30). Nighbor's photographs showed two keys stamped "Abbott Do Not Duplicate" (A. St. ¶¶31, 32), while the lockset and padlock were not labeled with Abbott's name (G. St. ¶85).

In October, as part of the investigation, senior investigator William Meadie ("Meadie"), manager of employee relations Lori Rakosnik and Munts met with Gildenstern (A. St. ¶33). Gildenstern recalls that he was told that he was accused of "being irresponsible" with an Abbott lock and that Meadie showed him Nighbor's photographs of the keys, lockset and padlock (A. St. ¶33; G. St. ¶76; A. Resp. ¶76). Gildenstern told Meadie that he could not tell if the keys were his, that he had not installed the locks at Nighbor's house, that the pictured locks were widely available and that other Abbott employees had Abbott locks at home (A. St. ¶35; G. St. ¶76; G. Resp. ¶¶34, 45). Gildenstern suggested instead that Nighbor had come forward with a story about the locks due to a grudge against him and that perhaps another locksmith of Nighbor's acquaintance had removed the locks from Abbott and installed the lockset at her home, emphasizing that Nighbor is acquainted with several locksmiths (G. St. ¶79).

Later, at Abbott's request, Waukegan Safe and Lock (the vendor that supplies locks to Abbott's North Chicago Campus) removed the lockset from Nighbor's house and provided Munts with the lockset and padlock (A. St. ¶¶28, 41, 42). Waukegan Safe and Lock informed Munts and Meadie that the cylinder in the lockset was keyed to the master key that opens buildings R5 and R6 at Abbott's North Chicago Campus (A. St. ¶43).*fn5

As a result of its investigation, Global Security concluded that Gildenstern had violated Principle 10 (A. St. ¶45; G. Resp. ¶45). After Rakosnik told Ketterling of Global Security's conclusion and said that she recommended Gildenstern's termination, Ketterling decided to do just that (A. St. ¶¶47-49, G. Resp. ¶48). Ketterling and Heg met with Gildenstern for that purpose on November 7 (A. St. ¶50). Before that meeting Ketterling had never met Gildenstern and was not aware of Gildenstern's race or national origin (A. St. ¶51).

Summary Judgment in the Title VII Context

To defeat a summary judgment motion, a Title VII plaintiff*fn6 must establish*fn7 a genuine issue of material fact as to whether intentional discrimination motivated the employer's treatment. Two approaches are available to that end: (1) the direct approach, where plaintiff adduces direct evidence of the employer's discriminatory intent (not proffered in this case) or creates a "convincing mosaic of discrimination" out of pieces of circumstantial evidence (Troupe v. May Dep't Stores Co., 20 F.3d 734, 737 (7th Cir. 2004))*fn8 and !2) the indirect approach, which employs the sequential burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Here the parties take the indirect approach, but this opinion will also assess whether the circumstantial evidence as a whole creates a "convincing mosaic of discrimination."

Under the McDonnell Douglas indirect-approach framework, Gildenstern must first set out a prima facia case of discrimination based on race or national origin (411 U.S. at 802). If he succeeds Abbott must proffer a legitimate nondiscriminatory reason for its conduct (id.). And if it does so, Gildenstern must adduce enough evidence for a reasonable jury to conclude that Abbott's asserted justification was merely a pretext for discrimination, with the adverse ...


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