The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
E-FILED Monday, 12 December, 2011 03:22:56 PM
Clerk, U.S. District Court, ILCD
This case is before the court for ruling on the Motion for Summary Judgment (#29) filed by the Defendant, Cognis Corporation ("Cognis"). This court has carefully reviewed the arguments of the parties and the documents filed by the parties. Following this careful and thorough review, Defendant's Motion for Summary Judgment (#29) is DENIED.
I. STEVEN WHITLOW-CHARGING PARTY
Steven Whitlow ("Whitlow"), Intervenor Plaintiff, was employed by Cognis and its predecessors at a facility in Kankakee, Illinois, for approximately 19 years. During the period of time between May 2006 and May 10, 2007, Whitlow undisputedly was disciplined for numerous performance related issues.*fn2 As a result, Cognis issued verbal warnings, issued a disciplinary suspension, and even held a formal counseling session to try to resolve these performance issues.*fn3 On May 10, 2007, in lieu of termination, Whitlow was presented with a Last Chance Agreement ("LCA") by Cognis representatives, who explained that he was receiving the LCA due to his failure to meet performance expectations. The relevant language of the LCA provided:
Cognis has decided to offer Whitlow one last chance to continue his employment in lieu of termination and Whitlow has decided to accept the terms of this Agreement as his last chance to retain his employment. . . . [I]n consideration of the mutual covenants herein contained, the parties agree as follows:
1. The Company agrees to offer Whitlow the opportunity to retain his position. Whitlow agrees to fully comply with all requirements of the job. . . .
3. The Company and Whitlow agree that this [LCA] shall remain in full force and effect during the next two years.
4. Whitlow agrees that in the event that he does not meet performance expectations, or violates any of the Company's rules or regulations, receives any discipline, receives any operating errors, or is absent or misses any more work his employment will be immediately terminated without recourse to the grievance or arbitration provision of the collective bargaining agreement, or to any agency, federal, state, or municipal court. . . .
7. For and in consideration of the mutual promises set forth herein, Whitlow does hereby release and waive any claim of liability against Cognis, its affiliates, partners, agents and employees, for, on account of, or in relation to Whitlow's rights' [to] employment with Cognis or its affiliates, or his status under this [LCA], and agrees not to commence any action or proceeding, including but not limited to any common law claim or statutory claim under Title VII of the Civil Rights Act of 1964, and similar state or local fair employment practices law, regulations, or ordinance, the Age Discrimination in Employment Act (ADEA), the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990 (ADA), the National Labor Relations Act (NLRA), the Family and Medical Leave Act (FLMA), or before any state, federal or court or administrative agency, civil rights commission or agency, or any other forum.
Whitlow understood, accurately, that if he did not agree to each of the terms contained in the LCA he would be immediately terminated by Cognis. On May 11, 2007, Whitlow submitted the signed LCA to Beverly Lemenager ("Lemenager"), a Cognis Human Resource Manager.*fn4
Thereafter, Whitlow continued working for Cognis in the exact same role as he had prior to entering into the LCA. Between May 10, 2007, and May 21, 2007, Cognis had no problems with Whitlow's job performance.
Despite initially signing the LCA, Whitlow questioned whether he had made the correct decision to waive the rights outlined in the LCA. Specifically, he contacted the National Association for the Advancement of Colored People ("NAACP") to discuss the LCA. Following this conversation, the NAACP sent a letter dated May 18, 2007, to Cognis indicating that it had concerns of discrimination taking place at the Cognis facility in Kankakee. This letter was received by several members of the Cognis management team, including individuals who were involved in the decision to terminate Whitlow, prior to May 21, 2007. Although the NAACP letter did not specify that Whitlow made the complaint to the NAACP, Cognis management assumed that the letter related directly to Whitlow's situation. At some point (although the date is not clear), NAACP representatives met with Denny Ohlmansiek, the Cognis plant manager, and Raul Rosado, Cognis' General Counsel, to discuss the NAACP's concerns about the LCA. Specifically, the discussion focused on the requirement that Whitlow (or presumably other individuals who had received a LCA) waive his rights to file charges of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Despite this meeting, from the facts offered to this court, there appeared to be no resolution.
On May 21, 2007, Whitlow reached out to Lemenager and requested that the LCA be modified so that he could retain his civil rights. It appears that Whitlow desired to be bound by the requirement that he comply with all requirements of his job, but desired to remove all restrictions from the LCA that restricted his civil rights. Lemenager responded that she would have to confer with management about his request, and then would get back to him about his request to modify the LCA. Thereafter, Whitlow returned to work for the day, and Lemenager conferred with management, indicating that Whitlow had raised a concern about protecting his civil rights. Later that same afternoon, Whitlow was called to a meeting with Lemenager. Lemenager told Whitlow that under no circumstances would the LCA be altered. Although it is clear that Whitlow raised the concern of the impact of the LCA on his civil rights, Cognis did not inform Whitlow that he did not have to give up his civil rights under the LCA. Furthermore, Cognis did not explain to Whitlow that the LCA did not actually prevent him from filing a charge of discrimination with the EEOC, even though the wording in the LCA indicated that Whitlow would have been prevented from filing such a charge.*fn5 Also, although Cognis's stated purpose of the LCA was simply to prevent Whitlow from engaging in the arbitration and grievance process, Whitlow was not told of this fact. Finally, Cognis did not inform Whitlow that paragraphs 5-7 of the agreements were limited in scope to past conduct by Cognis. At this point, after learning ...