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William E. Dever v. Ecolab

June 5, 2012

WILLIAM E. DEVER, PLAINTIFF,
v.
ECOLAB, INC., DEFENDANT.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Plaintiff William E. Dever sued his former employer, Defendant Ecolab, Inc., alleging age, race, and disability discrimination in violation of the civil rights laws. By order dated September 30, 2009, I dismissed the disability discrimination claim, finding that Plaintiff had not timely filed a charge of discrimination asserting that theory of discrimination. The case proceeded to discovery on the allegations for which the administrative prerequisites had been satisfied. Now pending is Defendant's motion for summary judgment. For the following reasons, the motion is granted.

I. BACKGROUND

Defendant Ecolab, Inc. is a Delaware company that operates a plant in Elk Grove Village, Illinois. At that facility, Ecolab refurbishes industrial dishwashers, assembles dish racks, and conducts distribution operations.

Plaintiff William E. Dever, appearing pro se, was employed by Ecolab at the Elk Grove Village facility from July 17, 2002 until his resignation on August 26, 2004. When he began working at Ecolab, Dever was classified as "Assembly II" and reported to Chris Gano. Dever's job duties were to work in the refurbishing area sandblasting parts and refurbishing dishwashers.

On September 27, 2002, Gano gave Dever his 60-day review. Dever was rated as "meeting requirements." Near the end of 2002, Dever was transferred to a new position in the refurbishing area. There, he rewired machines, installed new switches and plumbing, and replaced brackets. Gano continued to be Dever's supervisor in the new area.

On November 22, 2002, Gano gave Dever a four-month review. Dever's overall rating was "needing improvement." As to specific areas, Plaintiff rated as "needs improvement" in the categories of "team player," "communicator," "customer service," "problem solver," "job performance," and "community." Gano made specific comments that Dever was "not a very good team player" and that "he had butted heads with several of his co-workers." Additionally, Dever was told that he needed to work on his interpersonal communication, that his "lack of communication with his co-workers resulted in his inability to work through problems." It was noted that the change in work areas he had undergone "seemed to have helped" but "should not have been necessary."

In February 2003, Plaintiff requested and received a transfer back to the original area from which he had come. The reason for Plaintiff's request was that he and a co-worker, in Dever's words, "were butting heads on who was going to be in charge of that area." As related in his deposition, both Dever and the co-worker "wanted to tell each other what to do and that didn't work out." Plaintiff's compensation was unchanged as a result of the move.

What happened in the first half of 2003 is not entirely clear. Defendant mischaracterizes the record as saying that the February 2003 move was to the "control heads" or "control system" department. Dever's transcript (upon which Defendant relies), however, quite clearly shows that the request and transfer were to his original position. The move to control heads, according to Dever (again via his deposition transcript) was not until July 2003. But there is a June 20, 2003 formal written warning, authored by Chris Gano, indicating that Dever was in control heads. So far as the actual admissible facts indicate, then, Dever was moved to control heads after February but before June in 2003.

The move to control heads included a promotion to "Assembly III" and a corresponding increase in pay.

The June 20th letter reflected that Dever had low productivity in control heads: 66% for him as compared to a departmental average of 88%. Plaintiff admits that he had the low productivity ratings, but he explains that his low productivity was due to an injured right hand. He also states his premature elevation to the control heads department led to his poor productivity numbers.

On July 25, 2003, Chris Gano gave Plaintiff his annual review. Gano gave Plaintiff an overall rating of "needing improvement." He rated as "needs improvement" in the specific categories of "team player," "communicator," "continuous improvement," "flexible," "job performance," "community," and "productivity." Gano told Plaintiff that he does not interact well with most of his co-workers, that he consistently argues with his group leader, and that he frequently works outside the chain of command. The report also reiterated that "communication is one of his weak points" and that his poor communication skills hold him back. The report acknowledged that the control heads department may not be the best fit for him.

Plaintiff developed a record of tardiness and absenteeism, a record Plaintiff does not dispute. On July 31, 2003, Gano gave Dever a verbal warning for arriving twenty minutes late to a 7 a.m. shift. On December 10, 2003, Dever got another warning after missing a whole day of work on December 5th, in excess of his allotted vacation days. On February 11, 2004, Gano formally documented an incident in which Plaintiff was found asleep in his car at 1:00 p.m. when he should have been back at his shift at 12:30 p.m. On June 23, 2004, Plaintiff was again cited for tardiness, having arrived at 7:03 a.m. for a 7:00 a.m. shift.

On March 25, 2004, Gano issued Plaintiff a formal written warning for low productivity. Plaintiff countered that his productivity was low only because he was working on the ET6600, which he claims is the most difficult machine to refurbish. He points to Eric Bayani, under 40 and Asian, who works on smaller machines. Plaintiff states that he could have avoided his negative reviews if ...


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