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Mitchell Wojtanek v. Consolidated Container Co

September 12, 2011


The opinion of the court was delivered by: Magistrate Judge Michael T. Mason


Michael T. Mason, United States Magistrate Judge:

On January 13, 2009,pro se plaintiff Mitchell Wojtanek filed a complaint [1] against defendant Consolidated Container Company ("Consolidated") alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Before the Court is Consolidated's motion for summary judgment [89]. For the reasons set forth below, Consolidated's motion is granted.*fn1

I. Relevant Facts*fn2

Consolidated manufactures rigid plastic containers for consumer, agricultural and industrial chemical industries. (Def.'s LR 56.1 Statement of Facts ("SOF") [91] ¶ 1.) On February 11, 2002, Consolidated hired Wojtanek to work at its Elk Grove Village facility in the classification of General Plant Maintenance ("GPM"). (Id. ¶ 2; Wojtanek Aff. [114] ¶ 3.) At the time he was hired, plaintiff was 61 years old. (Def.'s SOF ¶ 4; Wojtanek Aff. ¶ 2.) Plaintiff's job duties included repairing and overhauling machines, and making parts for machines. (Def.'s SOF ¶ 7.)

The terms and conditions of plaintiff's employment were subject to the collective bargaining agreement ("CBA") between Consolidated and the International Association of Machinists and Aerospace Workers, District No. 8 ("Union").*fn3 (Def.'s SOF ¶ 8; Ross Decl. [102] Ex. A.) The CBA provides a progressive disciplinary policy. (Ross. Decl. Ex. A at 30.) Under that policy, a first offense results in a verbal warning or counseling; the second offense results in a written warning; the third offense results in a suspension; and the fourth offense results in a termination. (Id.) Despite this policy, Consolidated retains the managerial rights to impose the level of discipline it deems appropriate for a particular infraction. (Ross Decl. ¶ 12.) This includes the right to suspend an employee pending possible termination while the investigation of the incident is completed. (Id.)

On January 14, 2003, plaintiff received his first disciplinary warning for failing to perform the requirements of his job. (Ross Decl. ¶ 13.) The Corrective Disciplinary Action Form ("Disciplinary Form") memorializing the incident indicates that Wojtanek "could not fix the box maker." (Id. at Ex. B.) It further reveals that Wojtanek was given a verbal warning and that he "refused to sign" the Disciplinary Form. (Id.) The Disciplinary Form was signed by a Union representative, Wojtanek's supervisor, the production manager and a human resources representative. Id. Plaintiff denies having received the Disciplinary Form and "presume[s]" that it was created in retaliation for his complaints to management about unsafe conditions at a recent holiday party. (Pl.'s Resp. to SOF [115] ¶ 10; Wojtanek Dep. Tr. [91-2] 23-24.)

On November 1, 2005, plaintiff was given a verbal warning for "unsatisfactory work." (Ross Decl. [95], Ex. C.) He again refused to sign the Disciplinary Form. (Id.) At his deposition, plaintiff denied knowing about this disciplinary action at the time it occurred, but further testified that he had no reason to believe that the Disciplinary Form was an inaccurate depiction of his performance. (Wojtanek Dep. Tr. 25.)

Plaintiff's next disciplinary action involved fluorine, a toxic and corrosive chemical. (Ward Decl. ¶ 5; Ross Decl., Ex. D.) The fluorine system, which is located in the blend room, regulates the fluorine mixture levels. (Ward Decl. ¶ 5.) On July 28, 2006, plaintiff entered the blend room alone, contrary to Consolidated's rules, and made improper adjustments to the fluorine system. (Id. ¶ 9.) The adjustments resulted in dangerously high fluorine levels and the need to replace two valves at a cost of approximately $2,000. (Id. ¶ 10.) Plaintiff's conduct, which put himself and the plant at risk, resulted in a suspension and was documented in another Disciplinary Form. (Ross Decl., Ex. D.) That form was signed by Wojtanek, his supervisor, the production manager and a human resources representative. (Id.) Wojtanek was allowed to continue working during his suspension. (Id.)

In a letter dated July 31, 2006 to operations manager Robert Ward, Wojtanek explained his understanding of the fluorine incident. (Def.'s SOF, Ex. C). Wojtanek explained that he entered the blend room to make adjustments, after which the fluorine levels continued to rise. (Id.) He also stated that despite executing "normal procedure[s]" he did not have "any success" in lowering the fluorine levels. (Id.)

In his current submissions, Wojtanek now denies entering the blend room alone, and instead alleges that his third shift supervisor, Digol Jacob, was seen by his co-workers entering the blend room in order to purposely sabotage the fluorine levels. (Wojtanek Aff. ¶ 30.) Wojtanek also contends that during a meeting on July 28 regarding the fluorine incident, maintenance supervisor Bob Beebe and Union Chairman Francisco Zuniga told him it was "time to retire." (Id. ¶ 29.)

On August 1, 2006, plaintiff was suspended pending possible termination because, after working for three and a half hours, he was unable to repair the trimmer machine. (Ross Decl. ¶ 16 & Ex. E.) Another employee was able to repair the trimmer in less than fifteen minutes. (Ross Decl. ¶ 16.) At his deposition, plaintiff admitted that he worked for three and a half hours to repair the trimmer, and disputes only the date on which he did so. (Pl.'s Dep Tr. 93.) Despite the August 1 disciplinary action, time records purportedly reveal that Wojtanek returned to work the third shift on August 1-3, 2006. (See Pl.'s St. of Add'l Facts ("SOAF") [116], Ex. MW-1 at 1.)

Neither party disputes that Wojtanek first learned of his suspension from Jacob when he reported to work on the evening of August 4, 2006. (Def.'s SOF ¶ 23 & Ex. C.) According to Wojtanek, when he reported to work that evening, "all traces of [his] employment were removed." (Wojtanek Aff. ¶ 34.)

On August 7, 2006, plaintiff wrote a letter to Consolidated's Ethics Compliance Office complaining of his suspension and unfair treatment by his supervisor Jacob. (Def.'s SOF, Ex. C.) According to Wojtanek, Jacob had been trying to fire him despite his continued hard work. (Id.) In another letter dated August 7, 2006, and addressed to the Union, Wojtanek reiterated his complaints of an improper suspension and harassment. (Pl.'s SOAF, Ex. 6-B at 1.) An August 9, 2006 letter to the Union includes similar complaints. (Id. at 6.)

Union Chairman Zuniga prepared a grievance on Wojtanek's behalf on August 9, 2006 alleging "unfair and unjust practice by management." (Pl.'s SOAF, Ex. 13-B at 3.) Zuniga requested a step four grievance meeting and further requested that Wojtanek be allowed to return to work. (Id.)

Around the same time, Wojtanek began searching for another job. (Pl.'s Dep. Tr. 347.) On August 10, 2006, plaintiff prepared an application for employment at Pactiv Corporation. (Def.'s SOF, Ex. C.) Plaintiff prepared a second application for Pactiv on August 15, 2006. (Pl.'s SOAF, Ex. 19-B at 8-9.) Both applications listed his period of employment with Consolidated as February 11, 2002 through the "present." (Def.'s SOF, Ex. C; Pl.'s SOAF, Ex. 19-B at 9.) At his deposition, plaintiff testified that he believed he was still employed with Consolidated as of August 10, 2006. (Pl.'s Dep. Tr. 104.)

On August 15, 2006, plaintiff spoke with Consolidated's personnel clerk Pat Whelan regarding his employment status and medical benefits. (Whelan Decl. [92], ¶ 5; Pl.'s Dep. Tr. 378.) According to plaintiff, he called to ask why he no longer had medical insurance, to which Whelan responded that he could apply for Cobra benefits. (Pl.'s Dep. Tr. 378.) Wojtanek also testified that he told Whelan he wanted a grievance meeting as soon as possible. (Id.) Whelan's handwritten notes documenting the August 15 conversation tell a different story. (Whelan Decl., Ex. A.) Those notes indicate that plaintiff told Whelan he had another job and that he would like to stop the fourth step grievance meeting. (Id.) Whelan claims that she explained to Wojtanek that in order to prepare Cobra documents, she would have to process separation paperwork. (Whelan Decl. ¶ 7 & Ex. A.) Wojtanek purportedly agreed. (Whelan Decl. ¶ 7.) At his deposition, plaintiff denied telling Whelan that he had another job. (Pl.'s Dep. Tr. 379.)

After the conversation with plaintiff, Whelan told human resources manager Mike Ross that plaintiff had resigned and that she would be processing his termination. (Whelan Decl. ¶ 9; Ross Decl. ¶20.) Union Business Agent Rufus Eskew had separately informed Ross that plaintiff had resigned. (Ross Decl. ¶ 20.) Ross, who has decision-making authority over terminations, denies ever making any decision to terminate plaintiff's employment or to otherwise authorize the termination of his employment. Id. According to Ross, plaintiff's resignation came before Consolidated had an opportunity to do ...

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