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Thakkar v. Station Operators Inc.

March 8, 2010

VASANT THAKKAR AND PRAFULLA THAKKAR, PLAINTIFFS,
v.
STATION OPERATORS INC., D/B/A EXXONMOBILE CORS, EXXONMOBILE OIL CORP., AND KELLY BISSIAS, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Until February, Plaintiffs Vasant and Prafulla Thakkar, husband and wife, were employed by Defendant Station Operators, Inc. ("SOI"), a subsidiary of Defendant ExxonMobil Oil Corp. ("Exxon") that staffs and operates Exxon's gas stations. The Thakkars are of Indian descent, are Hindu, identify their race as East Asian, and were born in 1951. Plaintiffs were terminated from their jobs after an incident in which they admitted to transferring five cases of windshield wiper fluid between the two stations where they worked, in violation of SOI's internal policies. Defendant Kelly Bissias was Vasant's direct supervisor at the time of his termination. Plaintiffs claim Bissias authorized the transfer and then lied about it to her superiors, resulting in both Plaintiffs being discharged. In an amended complaint filed in October 2008, Plaintiffs allege that Defendants discriminated against them on the basis of age, race, national origin, and religion in violation of Title VII of the Civil Rights Act of 1964 (29 U.S.C. § 623 et seq.),42 U.S.C. § 1981 ("Section 1981"), and the Age Discrimination in Employment Act, 42 U.S.C. § 2000e et seq. ("ADEA"). Plaintiffs also advance state law claims of common-law retaliatory discharge against Defendants and tortious interference against Bissias.

Defendants have filed a motion for summary judgment on all claims. For the reasons set forth below, Defendants' motion is granted in part and denied in part. The court also addresses Plaintiffs' motion to supplement the record based on newly discovered evidence; that motion is granted in part and denied in part.

BACKGROUND

Vasant Thakkar began his employment with SOI as a sales associate in November 2000, and was promoted to assistant store manager in August 2001. (Pl.'s 56.1 Resp. ¶ ¶ 19, 21.) Prafulla Thakkar, Vasant's wife, joined SOI in May 2002, and she too was promoted to assistant store manager in April 2004. (Id. at ¶ ¶19, 21.) During the relevant period, Vasant worked at the Exxon station in Aurora, Illinois, and Prafulla worked at the station in the neighboring town of Naperville, Illinois. (Id. at 22.)*fn1 Though Vasant worked under a number of managers during his tenure at SOI, Defendant Kelly Bissias--who is Caucasian, 31 years old, and of Irish descent--was his store manager and direct supervisor during the period between September 2005 and February 2007. (Id. at ¶ 24.) At all relevant times, William Szenda was Prafulla's store manager and direct supervisor. (Id. at ¶ 23.) Plaintiffs' claims arise chiefly out of the series of events that culminated in their terminations. Unless otherwise indicated, the facts set forth here are undisputed. Where the parties disagree, the court views the facts and draws all reasonable inferences that flow from them in the light most favorable to Plaintiffs, as the nonmoving party. Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003).

I. Plaintiffs' Discharge

A. Vasant's Complaints Against Bissias

In October 2006, Vasant filed a complaint with SOI Territory Manager Brad Marcinkiewicz against Bissias, alleging that Bissias was violating company security procedures at the Aurora station. (Id. at ¶ 25.; V. Thakkar Dep. Ex. No 3.) Marcinkiewicz was responsible for overseeing the area that included the Aurora and Naperville stations and, in that capacity, he was Bissias's superior in the SOI hierarchy. Marcinkiewicz met Vasant at a Burger King restaurant near the Aurora station to discuss the complaint, and Vasant subsequently memorialized their discussion in a letter to Marcinkiewicz, a copy of which is in the record. (V Thakkar Dep at 67-68; V. Thakkar Dep. Ex. No 3.) At that meeting, Vasant reported that Bissias had repeatedly left the key to the Aurora store's safe in insecure places and had counted money from the cash register in the open, contrary to company policy. (Id.) He also accused Bissias of sharing her computer log-in password with other store employees, allowing employees to sign her name to company reports, and purchasing lottery tickets while wearing her store uniform--all in violation of company policy. (Id:; Pl.'s 56.1 Resp. ¶ 25.) "All the breaches of policy as well as security," Vasant wrote, "threaten the safety as well as proper running of the store . . ." (V. Thakkar Dep. Ex. No 3.)

At their October 2006 meeting, Vasant showed Marcinkiewicz security-camera photographs that corroborated his accusations. Marcinkiewicz thanked Vasant for reporting his concerns and undertook an investigation that confirmed that Bissias had, in fact, left the safe keys unsecured, allowed other employees to use her computer password, and purchased lottery tickets while wearing her uniform. (V Thakkar Dep. at 68; Pl.'s 56.1 Resp. ¶ 26.) In a letter dated November 6, 2006, Marcinkiewicz wrote to Vasant:

I have taken into account the security concerns that you had stated to me on October 28, 2006. Upon completion of a full investigation, I believe that any and all concerns have been addressed and the proper corrective actions have been taken . . . . I am confident that the steps taken . . . will eliminate any concerns or violations . . . . I wanted to personally thank you for bringing your concerns to me, and strongly encourage you to do so in the future should you ever have further questions or concerns in your work environment . . .

(V. Thakkar Dep. Ex 4.) Despite his professed gratitude, however, Marcinkiewicz still placed a "counseling letter" into Vasant's employment file. Unauthorized removal of company documents from a store site is against SOI's company policies, and Marcinkiewicz reprimanded Visant for removing the security-camera photographs from the store site for the purpose of the meeting. (Marcinkiewicz Dep. at 157.) Vasant had never received a reprimand of any kind before.

Marcinkiewicz also "counseled" Bissias about the security issues Vasant raised and placed a letter of reprimand in her employment file. (Pl.'s 56.1 Resp. ¶ 27; Bissias Dep. at 60-62.)*fn2 When Bissias learned of Vasant's complaint some time between November 2006 and January 2007, she was upset. "He never came to me with any of this so I felt it [was] disrespectful," Bissias testified. (Bissias Dep. at 65.)

There is no evidence that Vasant was aware that Bissias had been reprimanded as a result of his initial complaint. On January 17, 2007, he lodged a second complaint against her, this time in a letter directed to Marcinkiewicz's superior, SOI Operations Manager Kim Kemper. (Pl's 56.1 Resp. at ¶ 28.) Vasant explained that he felt compelled to send the complaint directly to Kemper because he believed Bissias and Marcinkiewicz to be "good friends." (V. Thakkar Dep. Ex 6.) Defendants deny that Bissias and Marcinkiewicz "have any sort of current social relationship," but they concede that on at least five occasions Bissias and Marcinkiewicz did participate in social outings outside of work. (Def. 56.1 Resp. at ¶ 5.)*fn3 As a result of this perceived relationship and the earlier reprimand that he had received, Vasant suggested to Kemper that he doubted that Marcinkiewicz would handle the second complaint fairly. (V. Thakkar Dep. Ex 6.) Vasant wrote Kemper that, in the time since his earlier complaint, "[n]ot only have many of the security breaches continued, but alarmingly, there is substantial evidence demonstrating Ms. Bissias' hostility towards me as a result of my alerting higher authorities . . ." (Id.) Vasant's letter detailed the following behavior: Bissias began referring to Vasant as "you" at employee meetings; she frequently gave other employees permission to leave work early during Vasant's shift without advising him; she directed Vasant to empty money from the car wash after dark and to make nighttime bank deposits on New Year's Eve; she reduced Vasant's average weekly hours from 38 hours to 36 hours per week; on one occasion, she required Vasant to work 10 consecutive days including Christmas and overnight on New Year's Eve;*fn4 and she falsely accused Vasant of misplacing company records. (Id.; Pl's 56.1 Resp. at ¶ 29.) Though Vasant did not indicate at that time that he believed these actions were the result of discriminatory animus--in fact, he speculated that Bissias was retaliating "as a result of [Vasant's] alerting higher authorities"--he did state that he believed Bissias's behavior violated provisions of the company's Workplace Harassment and Equal Employment Opportunity policies. (Pl's 56.1 Resp. at ¶ 29.)*fn5 Plaintiffs now contend that requiring Vasant to work more than seven consecutive days was an act of unlawful discrimination.

Kemper opened a formal inquiry into Vasant's complaint on January 25, 2007, and assigned the investigation to Mary Ann Kause, a paralegal in Exxon's legal department. (Def.'s 56.1 Resp. at ¶13, Pl's 56.1 Resp. at ¶ 31.) After conducting her investigation, Kause concluded that Vasant's claims could not be credited and closed the investigation on February 20, 2007. (Id. at ¶ 32.)*fn6

Roughly one month later, on March 26, 2007, SOI Human Resources Advisor Erik VanDuivendyk sent Vasant a letter stating, "we have completed the investigation into the claim you submitted to [SOI] Human Resources. Based on the findings of the investigation, the proper response has been taken and the case is now closed." (VanDuivendyk Dep. at 67-68.) By the time this letter was issued, the Thakkars had been terminated from SOI. No disciplinary action was ever taken against Bissias or Marcinkiewicz in connection with the complaint.

B. SOI/Exxon's Driving and Transfer Rules

SOI maintains a list of "posted offenses," the commission of which "may result in [an employee's] suspension or discharge without prior notice." (V. Thakkar Dep., Ex. 7; P. Thakkar Dep. Ex. 14.) These posted offenses include: "[r]efusing or neglecting to obey a Company order," and "[v]iolating a safety rule (See Safety and Health section of the [SOI] Employee Handbook)." (Id.) Prafulla and Vasant signed documents when they began employment with SOI and periodically as policies were updated, ackowledging that they had read and understood the list of posted offenses and the employee handbook. (Id.) In addition to those materials, SOI also maintains a set of standard operating procedures ("SOPs") that articulate company rules regarding driving and transfers of inventory. (Marcinkiewicz Dec. at ¶ 6-8.)*fn7 Ostensibly in an effort to increase worker safety, reduce the company's potential legal liability for accidents, and prevent the loss of store inventory, the SOPs prohibit employees from driving on company business or transferring inventory between store locations without proper authorization. (Id. at ¶ ¶ 7, 8, 10, 11.) Under the SOPs, assistant store managers may neither perform business-related driving nor transfer inventory between stores without preapproval from their territory manager. (Id. at ¶ 7-8.)

The driving guidelines, which had been in effect since at least 2004, were reviewed at a company meeting of store and territory managers in Chicago in August 2006. (Id. at ¶10; Szenda Dep. 21-22; Kemper Dep. at 37.) It is undisputed that, prior to August 2006, the driving rules had been loosely enforced, and it had been a common practice for SOI employees to transfer inventory between stores without authorization and for managers and assistant managers to drive their own vehicles to conduct such transfers. (Pl.'s 56.1Resp. at ¶ 7.) Defendants contend, however, that the August 2006 meeting marked a new policy shift toward aggressively enforcing the driving rules. According to Kimberly Kemper, rigorous implementation of the driving policy was "a big deal" and a "significant change for the organization . . . because management said that we needed to curb motor vehicle accidents." (Kemper Dep. at 51.) There is no evidence in the record to indicate whether there had been a history of motor vehicle accidents among SOI workers.

Marcinkiewicz claims that, following the August 2006 meeting, he instructed store managers in his territory that "going forward, all product transfers between stores had to be approved and performed by me and that violations would not be tolerated, with the consequences to include termination." (Marcinkiewicz Dec. ¶ 12.) Plaintiffs were not present at the August 2006 meeting, and they assert that they were never informed of any new policy for aggressively enforcing the long-neglected driving and transfer regulations. There is no evidence that Marcinkiewicz ever spoke directly with either Vasant or Prafulla about the policy change. William Szenda testified that he told Prafulla that "we couldn't move product anymore ourselves, that we needed to have Brad [Marcinkiewicz] do it." (Szenda Dep. at 34.) But Prafulla testified that while she understood that "[territory managers] only can move [inventory]," she continued to believe that "everybody" still ignored the SOPs. (P. Thakkar Dep at 59.)*fn8 Prafulla testified that she was personally aware that Robert Stewart, an assistant manager at another store, violated the policy after August 2006 because she had seen Stewart pick up items from the Naperville store. (Id. at 58-59.) On one occasion after Szenda informed Prafulla of the stricter rules, Prafulla broached the issue with Marcinkiewicz because she wanted to purchase some item for her store.*fn9 According to Prafulla, Marcinkiewicz was nonchalant, telling her, "Oh, you know, if you want to go and buy it, buy it." (P. Thakkar Dep. at 60.)

Vasant testified that he was never told anything about the new driving or transfer policies by anyone, and that he was aware of several employees who regularly drove in pursuit of company business and transferred products without authorization after August 2006. (V. Thakkat Dep. 141-44.) Vasant testified that he was personally aware that Bissias, Stewart, Assistant Manager Jim Cruz, and Manager Florin Coman had all violated the driving policy, "but [Marcinkiewicz] never took action against anyone." (Id. at 144.) The various company documents signed by Plaintiffs over the course of their employment make no specific mention of the driving rules. Nor are the driving rules set forth in the employee handbook. It is undisputed that, before August 2006, both Plaintiffs had transferred inventory and had driven in pursuit of company business at the request and instruction of their supervisors. (Pl.'s 56.1 Resp. at ¶ 17.)

C. Plaintiff's Violation of the Driving Rules

On February 16, 2007, four days before Vasant's second complaint against Bissias was closed without action, both Vasant and Prafulla were terminated by SOI for insubordination and violation of company policies and safety procedures. The incident cited as the reason for their terminations began just three days after Vasant lodged his second complaint, on the morning of January 20, 2007, when Vasant realized that the Aurora station had run out of windshield wiper fluid. (Pl.'s 56.1 Resp. at ¶ 33.) The shortage was the result of an ordering error made by Bissias earlier in the week. (Id. at ¶ 34.) Upon discovering the shortage, Vasant telephoned Prafulla at the Naperville station and asked if her store had extra fluid. (V. Thakkar Dep. 123-124.) Prafulla reported that the Naperville store had five surplus cases that she was willing to transfer to Aurora, and she and Vasant agreed that they would need permission from their respective store managers to transfer the surplus cases. (Id. at 124.)

Vasant telephoned Bissias at home to explain the situation and obtain permission for the transfer. Vasant and Bissias give sharply conflicting accounts of the ensuing conversation. According to Vasant, Bissias immediately approved the transfer of the five cases but added: "But [Prafulla] cannot drive." (V. Thakkar Dep. at 124.) Vasant then asked, "Yes, but by going home [after the end of her shift], can she drop by here?" (Id. at 124-25.)*fn10 According to Vasant, Bissias then told him "Okay. That's fine." (Id. at 125.) Bissias denies giving Vasant approval to drive or transfer the cases. Rather, Bissias testified that she unequivocally ordered Vasant not to transfer the boxes: "[Vasant] asked if they could transfer windshield washer fluid, him and his wife, and I stated no, it is against company policy." (Bissias Dep. at 67-68.) According to Bissias's account, she told Vasant that Marcinkiewicz was the only person who could authorize the transfer and, since Marcinkiewicz was out of town that day, there was no way to move the cases. (Id. at 116.) Vasant argued, "well, [Prafulla] can bring it here on her way home from work," but Bissias again refused and stated that it would still violate company policy. (Id.) Vasant replied, "but she'll be off the clock." Bissias claims she ended the conversation by saying, "It is still transferring product from store to store, you cannot do that." (Id.)

Prafulla simultaneously telephoned her store manager, William Szenda, at his home to ask permission to transfer the cases of fluid. According to Szenda, Prafulla "told me that five cases were going, but she did not tell me that she was taking it." (Szenda Dep. at 43.) Szenda testified that he assumed that Bissias would arrange for some authorized means of transferring the cases that did not involve Prafulla's driving. (Id. at 44.) "I knew that there was no way that Prafulla could lift up and put five cases of washer fluid in her trunk so I wasn't worried about it," Szenda said. (Id.) Purportedly unaware that Prafulla intended to deliver the cases herself, Szenda told Prafulla that "if it was okay with Kelly [Bissias], then it was okay with [him]." (Id. at 44.) After finishing her shift, Prafulla did, in fact, drive the five cases from the Naperville station to the Aurora station. (Pl.'s 56.1 Resp. at ΒΆ 41.) Bissias testified that she determined that Vasant and Prafulla had made the transfer when ...


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