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James Culbert v. Hilti

November 23, 2011


The opinion of the court was delivered by: Charles P. Kocoras, District Judge:


This case comes before the Court on Defendant Hilti, Inc.'s ("Hilti") motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below, the motion is granted.


The Parties

Hilti manufactures, markets, and sells tools and related products primarily to the commercial construction industry. Hilti showcases its products and answers consumers' questions through the use of "pro shops" located in Home Depot stores.

Each pro shop employs one or two pro shop consultants, who interact with Home Depot customers and encourage them to purchase Hilti's products.

In October 2000, Hilti hired Plaintiff James Culbert ("Culbert"), a forty-four year old African American, as a pro shop consultant and assigned him to the North Avenue Home Deport store in Chicago, Illinois. As a Hilti employee, Culbert understood that he should treat fellow employees with dignity and respect, abide by his supervisor's instructions, be courteous, act in a business-like manner, and not harass or intimidate co-workers.

Culbert's Supervisor, Jennifer Perchenko

Sometime before March, 1, 2006, Jennifer Perchenko ("Perchenko") was a Lead Pro Shop Consultant, an intermediary between Hilti's Regional Manager and the pro shop consultants. When Perchenko was the Lead Pro Shop Consultant, she and Culbert had a good working relationship. For instance, Perchenko occasionally brought muffins and coffee into work for Culbert. Additionally, Perchenko and Culbert exchanged going-away gifts around April 2004 when Hilti promoted Perchenko to a training position in Oklahoma. On March 1, 2006, Hilti promoted Perchenko to Regional Manager of the Midwest region and Perchenko became Culbert's supervisor. Perchenko was the Regional Manager of the Midwest region until November 30, 2008.

Culbert's Performance and the 2006 Annual Evaluation

From 2003 to 2005, Hilti's North Avenue Pro Shop exceeded forecasted sales and Perchenko attributed part of the success to Culbert. According to Perchenko, Culbert was knowledgeable about Hilti's products, understood contractors and their work, understood how Home Depot functioned, and was willing to work when needed. Culbert did not receive any written warnings during his first six years of employment with Hilti.

According to Perchenko, she visited Culbert at least once per month to provide feedback. Perchenko stated that, unlike the other pro shop consultants, Culbert refused to engage in mock role play so that she could provide feedback on his interaction with customers. Perchenko also allegedly encouraged Culbert to be more outgoing with customers and friendly with Hilti employees. In an affidavit, Culbert denies that he refused to participate in the mock role play in 2006 or that Perchenko approached him regarding his interaction with customers or co-workers.

On January 16, 2007, Perchenko and Culbert met at a coffee shop where Perchenko provided Culbert with his annual performance review (the "2006 Review"). According to Culbert, at the beginning of the meeting, Perchenko said to Culbert, "I don't want any of your bullshit. I'm not in the mood for it today."

In the 2006 Review, Perchenko positively commented on Culbert's inventory management, but criticized other aspects of his performance. Specifically, Perchenko stated that Culbert did not communicate with his team members and failed to create two personal development targets. Perchenko also stated that Culbert's poor attitude towards change and working with others was the primary reason that the North Avenue store achieved only 80% of the forecasted sales in 2006. When given the opportunity to document his own assessment of his performance in 2006, Culbert rated himself as "below expectations" in the categories of "business targets," "development/core values targets," and "final assessment." Although Perchenko did not include her assessment of Culbert in those categories, she testified that she agreed with Culbert's assessment and considered his performance as "below expectations." The rating of "below expectations" was the lowest rating among the three ratings of "exceeds expectations," "meets expectations," and "below expectations."

For the "team member comments" section of the 2006 Review, Culbert wrote "no comments." Culbert admitted that he told Perchenko something along the lines of "just tell me what you want me to write on here and I will." Culbert acknowledged that Perchenko could have been insulted by his statement. Perchenko testified that she found Culbert's comment unprofessional and disrespectful.

The January 16, 2007 Corrective Action Plan

On January 16, 2007, the same day Perchenko gave Culbert his 2006 Review, Perchenko also provided Culbert with a Corrective Action Plan ("CAP"), outlining perceived attitude and performance issues and the actions that Culbert was expected to take to correct such issues. In the January 2007 CAP, Perchenko criticized Culbert's sales performance for 2006 because he achieved only 80% of the planned sales. Four of the thirteen pro shops in the Midwest region finished 2006 below 80% of planned sales, but Perchenko did not issue written warnings to the pro shop consultants located in those pro shops.

In the January 2007 CAP, Perchenko also stated that other Hilti employees complained about their interactions with Culbert. Perchenko testified that she had a difficult time convincing employees to work at the North Avenue Pro Shop with Culbert. According to Perchenko, Culbert was unfriendly to her, his teammates, Hilti's corporate employees, and Home Depot's corporate employees at the North Avenue Pro Shop. According to the January 2007 CAP, Perchenko discussed Culbert's attitude with him on several occasions, but he continued to challenge directives from management. For example, Perchenko stated that Culbert was not receptive to her coaching on how to more effectively engage Home Depot customers. According to Perchenko, Culbert continually asked customers the yes or no question, "Can I help you?" Perchenko disfavored that question and had instructed her team to ask open-ended questions, such as, "What brings you into Home Depot?" and "What are you working on today?" Perchenko stated that Culbert's behavior impeded Hilti's ability to achieve sales targets, provide customer service, and maintain a credible relationship with Home Depot's management.

As stated in the January 2007 CAP, Perchenko transferred Culbert to the Armitage Pro Shop, a location with fewer customers and no other pro shop consultants. Culbert had no problem with the transfer, since he received the same pay and health benefits and maintained the same responsibilities. The January 2007 CAP directed Culbert to immediately improve his overall behavior and maintain at least 90% of forecasted sales at the Armitage Pro Shop.

The June 13, 2007 Corrective Action Plan

According to Perchenko, Culbert's poor attitude and performance did not improve after he received the January 2007 CAP. On June 11, 2007, Perchenko e-mailed Chris Gilreath ("Gilreath"), Hilti's Human Resources Manager at the time, stating that Culbert's attitude and sales had briefly improved, but then became much worse. Perchenko stated that Culbert's behavior was unacceptable and that she planned to issue another CAP focusing on Culbert's attitude and communication. Perchenko stated that she would like to terminate Culbert even though she had no replacement. Perchenko also asked Gilreath what she could do to expedite the termination process because she felt certain that Culbert would not improve. Gilreath had sole authority to make termination decisions on behalf of Hilti and declined to terminate Culbert's employment. Instead, Gilreath chose to give Culbert an opportunity to remedy his conduct and performance.

On June 13, 2007, after consulting with Gilreath, Perchenko issued Culbert a second CAP relating to his attitude and sales performance. In the June 2007 CAP, Perchenko noted that she had previously discussed these problems with Culbert but, in her opinion, Culbert had not made the necessary improvement. Regarding Culbert's sales performance, Perchenko stated that Culbert's sales performance was 67% of the forecasted sales, which was 23% less than his target, as set forth in the January 2007 CAP. Relating to Culbert's attitude, Perchenko described several alleged incidents occurring on February 6, 2007, May 9, 2007, and May 30, 2007. According to Perchenko, at a February 6, 2007 meeting, Culbert displayed a negative attitude in front of his teammates and appeared disinterested in presentations. Further, according to Perchenko, on May 9, 2007, she asked Culbert to stop unloading shelves on five separate occasions and Culbert refused. Finally, Ashley Joseph ("Joseph") allegedly told Perchenko that, on May 30, 2007, Culbert had agreed to meet her at an event at 6:00 a.m., but that ...

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