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Hardeep Komal v. Arthur J. Gallagher & Co

June 13, 2011

HARDEEP KOMAL, PLAINTIFF,
v.
ARTHUR J. GALLAGHER & CO., DEFENDANT.



The opinion of the court was delivered by: Judge Feinerman

MEMORANDUM OPINION AND ORDER

Plaintiff Hardeep Komal brought this action against his former employer, Defendant Arthur J. Gallagher & Company, alleging discrimination and retaliation 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. Gallagher has moved for summary judgment. The motion is granted with respect to Komal's discrimination claim and denied with respect to his retaliation claim.

Background

The facts are set forth as favorably to Komal as the record and Local Rule 56.1 permit. Gallagher hired Komal in December 2005 to work in its Information Technology ("IT") department as a Senior Network Security Analyst at its facility in Itasca, Illinois. Komal is of Indian descent, practices the Sikh religion, maintains a full beard, and wears a turban. On December 13, 2006, Komal walked past two co-workers and heard one of them say "terrorist." The co-workers maintained that they were discussing their own appearances with and without facial hair, but Komal believed that the word was directed at him.

Komal immediately complained to Chad Fickle, his direct supervisor at the time. David Melchers-Gallagher's Chief Information Officer, Fickle's direct supervisor, and Komal's indirect supervisor-was informed of the incident about a week later. Gallagher conducted an investigation. The co-workers admitted to saying the word "terrorist" in Komal's presence, denied using it in reference to Komal, and were counseled regarding appropriate workplace conversation. They also offered to make a verbal apology. Komal rejected the offer and demanded a written apology. The demand was not satisfied, and in December 2007 Komal brought the issue directly to Melchers.

The parties contest what happened next. According to Komal, after he complained to Melchers, Melchers encouraged him to drop the issue and began generating fabricated evidence of poor performance reaching back several months before December 2007. Komal maintains that this fabricated evidence led directly to his termination in October 2008. According to Gallagher, no evidence was fabricated; rather, Komal's performance consistently deteriorated despite efforts to counsel and encourage him.

It is undisputed that in March 2007, three months after the "terrorist" incident but nine months before Komal complained directly to Melchers, Komal received an annual performance review. The evaluation concluded that Komal generally was meeting expectations, and noted that "Hardeep has done a strong job for us this year, in light of heavy demands in the network area. His ability to handle the day to day issues and support our company has been important. He has been under a heavy workload and dealt with it well." Doc. 46 at ¶ 94. The review, however, also noted that Komal failed to "follow-through" on projects on several occasions, that he had difficulty completing tasks on time, and that he needed to develop his leadership and project management skills. Doc. 52-1 at 18-19.

After the March 2007 review but before Komal's complaint to Melchers in December 2007, Komal's supervisors noted deficiencies in his performance. On multiple occasions in November 2007, Komal received "coaching" for what Bob Green, his then-supervisor, claimed to be poor communication. On December 3, 2007, Komal met with Green to address what Green claimed to be Komal's failure to correct certain technical problems and failure to respond to requests for further assistance. In January and February 2008, after Komal's complaint to Melchers, Komal repeatedly was warned and counseled about what his supervisors claimed to be attendance problems and unacceptable work product. In the meantime, in December 2007 or January 2008, Calvin Wright, who was Komal's supervisor at certain points, asked him whether he was a Muslim. A co-worker asked him the same question the following summer.

Komal had his next annual performance review in April 2008. Melchers took direct responsibility for the review. Although Melchers indirectly supervised about 270 employees, Komal was the only such employee for whom Melchers could recall exercising such responsibility. The review stated that Komal needed improvement in three of six designated areas and had additional "development needs," and gave Komal an overall rating of "less effective." Doc. ___ at 12-13. Like the 2007 review, the 2008 review stated that Komal had to improve his leadership, productivity, and follow-through; unlike the 2007 review, the 2008 review also stated that Komal had trouble accepting technical changes, struggled to solve technical problems, had poor attendance, and had difficulty communicating technical issues.

Following the April 2008 review, Komal was placed on a six-week Performance Improvement Plan ("PIP"), a program intended to provide low-performing employees with personal counseling and targeted feedback in order to improve their work. Komal's PIP stated that its goal was to improve his attendance and punctuality, increase his productivity, and improve his troubleshooting skills and ability to communicate regarding technical issues. During the PIP, Komal met every one to two weeks with Wright and Melchers to discuss Gallagher's expectations and to review the prior week's performance. According to Komal, Melchers repeatedly encouraged him to quit. Gallagher's take is that Melchers merely offered Komal a "graceful exit" in light of his performance problems.

During Komal's PIP, Gallagher continued to receive complaints about Komal from his colleagues regarding his communication skills, failure to follow-through on projects, inability to problem-solve, and failure to provide thorough solutions to computing problems. On May 27, 2008, Komal received a written warning that extended his PIP until the end of June 2008 and that warned that he could be terminated if he failed to meet the PIP's objectives. According to Gallagher, Komal continued to have performance problems, was suffering from "eroding credibility," and was deemed by Melchers to no longer be "fit for the role." Komal attributes any performance issues to the fact that Gallagher practiced discrimination by giving him only partial access to Gallagher's Cisco operating system, to which co-worker Carl Schneider had greater access, and by giving co-worker Christine Bannia "access to infrastructure and devices" denied to him.

The PIP concluded on June 30, 2008. Komal contends that his performance thereafter was "exemplary." On October 8, 2008, Komal was fired. Gallagher submits that before the termination, Komal rejected the company's offer of a modified position in the IT department that would have focused his responsibilities on tasks he performed well and eliminated duties he performed poorly. Komal denies that any such offer was made.

On July 24, 2008, over two months before his termination, Komal filed a charge with the Equal Employment Opportunity Commission ("EEOC"), which stated in relevant part:

In December 2006 I engaged in a protected activity. Subsequently I have been discriminated against in that I have been harassed, subjected to unequal terms and conditions of employment, and disciplined. I believe that I have been discriminated against because of my race, Asian, national origin, India, religion, Sikh, and retaliated against for engaging in ...


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