Wojtanek v. Consolidated Container Company

Filing 129

MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 9/12/11.(rbf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MITCHELL WOJTANEK,
Plaintiff,
v.
CONSOLIDATED CONTAINER
CO.,
Defendant.

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09 CV 202
Magistrate Judge Michael T. Mason

MEMORANDUM OPINION AND ORDER
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.1
I.

Relevant Facts2
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

1

This Court has jurisdiction pursuant to 28 U.S.C. § 1331. Venue is proper under 28 U.S.C. §
1391(b) because a substantial part of the events giving rise to plaintiff’s claim’s occurred in this district.
On August 11, 2010, the parties consented to the jurisdiction of the undersigned Magistrate Judge for all
future proceedings pursuant to 28 U.S.C. § 636(c) [57].
2

These facts are taken from the parties’ Local Rule 56.1 statements of fact and supporting
documents, but, as explained in more detail below, only to the extent that those submissions are in
compliance with the Local Rule.

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”).3 (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
3

Plaintiff denies that his employment with Consolidated was subject to the CBA, but only as a
result of his claims that the Union abandoned him when he turned 64 and failed to provide him proper
representation. (Pl.’s Resp. to SOF ¶¶ 8, 9; see also, Wojtanek v. IAM Union Dist. 8, 08 C 3080
(Pallmeyer, J.)) However, plaintiff has provided no evidence that his employment was not in fact governed
by the CBA and admits in his deposition that he became a member of the Union. (Wojtanek Aff. ¶ 2.)

2

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
3

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 coworkers 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.
4

(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
5

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 so. (Id.) The separation paperwork, which Whelan prepared,
is dated August 15, 2008 and lists Wojtanek’s last day as August 3, 2006. (Pl.’s SOAF,
Ex. A.)
On August 17, 2006, plaintiff received a written offer of employment as a
maintenance mechanic from Pactiv, which he accepted on the same day.4 (Def.’s SOF,
Ex. C.) Despite this offer, and Consolidated’s belief that Wojtanek resigned, the fourth
step grievance meeting took place on August 23, 2006. (Ross Decl. ¶ 22.) According

4

Plaintiff was terminated from Pactiv on November 17, 2006 for being “too slow.” (Wojtanek Dep.
Tr. 389.) As a result of that termination, plaintiff sued the Union and Pactiv, again alleging age
discrimination. See Wojtanek v. District Lodge No. 8, 08 C 7074 (Lefkow, J.) and Wojtanek v. Pactiv
Corp., No. 09 C 6551 (Norgle, J.)

6

to Ross, the discussion during that meeting was limited to the issue of whether the
company would contest plaintiff’s unemployment compensation claim, possible
severance compensation and Cobra documentation. (Id.) Handwritten notes from the
meeting corroborate this representation. (See Pl.’s SOAF, Ex. 13-B at 4-6.) At some
point during the meeting, a “Severance Agreement” was prepared to memorialize the
parties’ purported agreement regarding, among other things, unemployment
compensation and Cobra benefits. (Pl.’s SOAF. ¶ 19 & Ex. 13-B at 1-2.)
Plaintiff denies Consolidated’s description of the grievance meeting and claims
that it was humiliating and unfair. (Pl.’s SOAF ¶ 18 & Ex. 14-B at 5.) According to
Wojtanek, Consolidated representatives continuously tried to force him to admit that he
resigned on August 1, 2006. (Id. ¶¶ 14-15 & Ex. 14-B at 5.) In any event, it is
undisputed that Wojtanek never signed the Severance Agreement. (Id. ¶ 20.)
On August 8, 2006, Consolidated posted a job listing for plaintiff’s former GPM
position. (Ross Decl. ¶ 25 & Ex. F.) When no qualified existing employees from within
Consolidated were hired, Consolidated sought applications from outside the company.
(Id. ¶ 26.) Eventually, on October 6, 2006, former Consolidated employee Giuseppe
Giovenco was hired to fill Wojtanek’s position.5 (Id. ¶ 27, Ex. G.) Personnel documents
reveal that Giovenco was born in 1939.6

5

Consolidated’s “Change of Status” form indicates a hire date of October 9, 2006. (Ross Decl.

Ex. G.)
6

We note that this date differs from ¶ 37 of Ross’s Declaration, which indicates that Giovenco was
born in 1940. Having retained the unredacted version of Giovenco’s personnel file submitted in
connection with defendant’s motion for leave to file sealed documents [103], we can confirm that those
documents indicate that he was in fact born in 1939. This discrepancy is of no moment, as Giovenco is
undoubtedly older than Wojtanek, who was born in 1941.

7

On January 25, 2007, Wojtanek filed a charge of age discrimination with the
Illinois Department of Human Rights (“IDHR”) (See “Charge of Discrimination,” attached
to Pl.’s Compl.) On September 8, 2008, after two rounds of investigations, IDHR
dismissed plaintiff’s charge for lack of substantial evidence. (McInnis Decl. [94], Ex. A.)
The U.S. Equal Employment Opportunity Commission (“EEOC”) adopted the findings of
IDHR on November 19, 2008. (See “Dismissal and Notice of Rights,” attached to Pl.’s
Compl.) This action followed and, after a tumultuous discovery process, defendant filed
the pending motion.
II.

Summary Judgment Standard
Summary judgment is appropriate where the evidence of record shows that there

is “no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). There is no genuine dispute of material fact
when “no reasonable jury could find in favor of the nonmoving party.” Van Antwerp v.
City of Peoria, 627 F.3d 295, 297 (7th Cir. 2010) (quoting Brewer v. Bd. of Trs. of the
Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007). The movant bears the initial burden of
demonstrating the absence of a genuine issue of material fact by specific citation to the
record; if the party succeeds in doing so, the burden shifts to the nonmovant to set forth
specific facts showing that there is a genuine issue of fact for trial. Fed. R. Civ. P.
56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The court must construe all
facts and draw all inferences from the record in favor of the nonmoving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In addition, “[c]onclusory allegations and self-serving affidavits, without support in
the record, do not create a triable issue of fact.” Hall v. Bodine Elec. Co., 276 F.3d 345,
8

354 (7th Cir. 2002). In the same vein, affidavits or depositions based on speculation,
rumor, or conjecture are not sufficient to defeat a properly supported motion for
summary judgment. Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 337 (7th
Cir. 1991).
III.

Analysis
A.

Compliance with Local Rule 56.1

Before addressing the merits of defendant’s motion for summary judgment, we
must first address plaintiff’s failure to comply with Local Rule 56.1. Under that rule, a
party moving for summary judgment must file, among other things, “a statement of
material facts as to which the moving party contends there is no genuine issue and that
entitle the moving party to a judgment as a matter of law....” LR 56.1(a)(3); Cracco v.
Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). The statement must consist of
short numbered paragraphs, including within each paragraph references to the
affidavits, parts of the record and other supporting materials relied upon. LR 56.1(a).
Each party opposing a motion for summary judgment must then file a response to the
movant’s statement that contains (1) numbered paragraphs, each corresponding to and
stating a concise summary of the paragraph to which it is directed; (2) a response to
each numbered paragraph in the moving party’s statement, including, in the case of any
disagreement, specific references to the affidavits, record, and other supporting
materials; and (3) a statement, consisting of short numbered paragraphs, of any
additional facts that require the denial of summary judgment, including references to the
affidavit, parts of the record and other supporting materials relied upon. LR 56.1(b).

9

The purpose of Local Rule 56.1 is to assist the court by “organizing the evidence,
identifying undisputed facts, and demonstrating precisely how each side propose[s] to
prove a disputed fact with admissible evidence.” Bordelon v. Chicago Sch. Reform Bd.
of Trs., 233 F.3d 524, 527 (7th Cir. 2000). It is well settled that the District Court is
entitled to expect strict compliance with LR 56.1 and does not abuse its discretion when,
in imposing a penalty for a litigant’s non-compliance with that rule, chooses to deem the
opposing party’s facts admitted. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).7

A court may also disregard any additional facts proposed by a party if those facts
are not properly presented in compliance with Local Rule 56.1(b). Cichon v. Exelon
Generation Co., 401 F.3d 803, 809-10 (7th Cir. 2005). Indeed, a court may disregard
any additional facts provided in a party's response to the opposing party’s statement of
facts, in a responsive memorandum, or in an accompanying affidavit, if those facts are
not set forth in a LR 56.1(b) statement of additional facts. See, e.g., Ciomber v. Coop.
Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008); Malec v. Sanford, 191 F.R.D. 581, 584
(N.D. Ill. 2000) (reiterating that Local Rule 56.1(b) “provides the only acceptable means
of ... presenting additional facts.”) (citations omitted).
Here, in response to Consolidated’s motion for summary judgment, plaintiff has
submitted a response brief [113], a response to Consolidated’s LR 56.1 statement of
facts [115], his own LR 56.1 statement of additional facts and accompanying exhibits

7

We point out that the court’s discretion under LR 56.1 remains broad even in the case of a pro
se litigant. See Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008) (noting that “although
courts are required to give liberal construction to pro se pleadings,” it is “well established that pro se
litigants are not excused from compliance with procedural rules.”).

10

[116], and an affidavit [114].8 Despite having been served with the “Notice to Pro Se
Litigant Opposing Motion for Summary Judgment” [96], which sets forth the
requirements of LR 56.1, plaintiff’s attempt to comply with those requirements falls
short.
First, with respect to plaintiff’s response to defendant’s statement of material
facts, Wojtanek disputes the majority of those facts, but almost always omits citations to
materials in the record illustrating that dispute. Where he has provided citations to
documents, those citations rarely support his response. Although plaintiff’s own
statement of additional facts includes citations to documents in the record, many of the
documents cited do not support the facts he is asserting. He often cites to multi-page
exhibits, without a specific page number, apparently expecting the Court to wade
through those exhibits. See U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (“Judges
are not like pigs, hunting for truffles buried in [the record].”). The documents include
undated letters, unauthenticated and incomplete versions of documents from the IDHR
proceedings, and unauthenticated and incomplete portions of depositions from other
litigation. Further, both of plaintiff’s Rule 56.1 statements are improperly filled with
speculation, hearsay and legal conclusions. See Thomas v. Sheahan, 499 F. Supp. 2d
1062, 1072 (N.D. Ill. 2007).
For all of these reasons, we have deemed defendant’s statement of facts
admitted and have considered only those additional relevant and material facts that
plaintiff has properly presented and supported with admissible evidence. See U.S. v.

8

Plaintiff also filed an unsolicited sur-reply [126], which we have not considered.

11

5443 Suffield Terrace, 607 F.3d 504, 510-11 (7th Cir. 2010) (noting that it is “not the
district court’s job to sift through the record and make [a party’s case] for him.”).
B.

Plaintiff’s Termination Claim

Plaintiff has alleged that Consolidated unlawfully terminated his employment in
violation of the ADEA, which “prohibits employers from firing workers who are 40 or
older on the basis of their age.” Martino v. MCI Communications Servs., Inc., 574 F.3d
447, 452 (7th Cir. 2009); 29 U.S.C. § 623(a)(1). As the Supreme Court has recently
explained, an ADEA plaintiff “must prove by a preponderance of the evidence (which
may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged
employer decision.” Gross v. FBL Financial Services, Inc., --- U.S. ----, 129 S.Ct. 2343,
2351 (2009). “In other words, proof that the plaintiff's age was a motivating factor, but
not a determinative factor, in the employer's decision, will not suffice to establish the
employer's liability.” Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961 (7th Cir.
2010) (citing Gross, 129 S.Ct. at 2352).
A plaintiff may establish age discrimination under the direct method or the
indirect method. Van Antwerp, 627 F.3d at 297. Wojtanek has not specified under
which method he brings his claims, so we address both methods below. However,
before doing so, and because either method requires a finding that the plaintiff was in
fact terminated, we address Consolidated’s contention that Wojtanek was not
terminated, but resigned on his own accord. As discussed above, plaintiff denies
having ever resigned. Although plaintiff’s own statements have been inconsistent, and
are inconsistent with documents in the record, as we must, we will view the facts in his
favor and accept his assertion that he was terminated when he went to work on August
12

4, 2006 and that his termination was processed on August 15, 2006. (Compl. ¶ 6; Pl.’s
SOAF ¶ 1 & Ex A; Wojtanek Aff. ¶ 34;) However, even accepting Wojtanek’s contention
that he was terminated, his claims of age discrimination fall short under both methods.
1.

Direct Method

Under the direct method, Wojtanek must produce direct or circumstantial
evidence that he was terminated because of his age. Mach v. Will County Sheriff, 580
F.3d 495, 499 (7th Cir. 2009). “Direct evidence typically requires an admission of
discriminatory animus, but a plaintiff may also produce circumstantial evidence that
establishes the employer's discriminatory motive through a longer chain of inferences.”
Id. Circumstantial evidence comes in many forms, including suspicious timing,
ambiguous oral or written statements, behavior toward or comments directed at other
employees in the protected group, or evidence showing that similarly situated
employees outside the protected class received systematically better treatment. Van
Antwerp, 627 F.3d at 299 (quoting Sun v. Bd. of Trs., 473 F.3d 799, 812 (7th Cir.
2007)).
Here, there is certainly no direct admission by Consolidated or “a smoking gun,”
of discriminatory animus. Isbell v. Allstate Ins. Co., 418 F.3d 788, 794 (7th Cir. 2005).
As for circumstantial evidence, Wojtanek has provided little. Dispersed throughout
Wojtanek’s various submissions are allegations that certain Consolidated employees
made comments to him regarding his age. At a July 28, 2006 meeting regarding the
fluorine incident, Wojtanek alleges that Bob Beebe and Union Chairman Zuniga told him

13

it is “time to retire.” (Wojtanek Aff. ¶ 29).9 Wojtanek has also alleged that his
supervisor, Jacob, called him an “old prick” in April of 2006, (Pl.’s SOAF ¶ 30; Wojtanek
Dep. Tr. 188), and that plant manager Sean Guinan told him the company was
“weeding out old crap.” (Pl.’s Resp to Def.’s SOF ¶ 35-36). As to the latter comments
by Jacob and Guinan, Wojtanek has failed to explain when Guinan’s comment was
made in relation to his termination, and what role, if any, Jacob and Guinan played in
any termination decision. See Merillat v. Metal Spinners, Inc., 470 F.3d 685, 674 (7th
Cir. 2006) (noting that “isolated comments that are no more than ‘stray remarks’ in the
workplace are insufficient to establish that a particular decision was motivated by
discriminatory animus.”); see also Rozskowiak v. Vill. of Arlington Heights, 415 F.3d
608, 612 (7th Cir. 2005) (holding that remarks made by someone uninvolved in making
employment decisions do not constitute direct evidence of discrimination).
We recognize that the comments by Beebe and Zuniga raise a red flag as they
were purportedly made a few days prior to the alleged termination. Such comments can
prove actionable if they were also (1) made by the decision maker or one having input
on the employment decision in question, and (2) were made in reference to the adverse
employment action complained of. Merillat, 470 F.3d at 674. But, again, Wojtanek has
failed to establish whether Beebe and Zuniga were involved in the employment
decision. In fact, Wojtanek alleges that it was Robert Ward who made the decision to

9

At his deposition, Wojtanek also testified vaguely that Jacob told him “it’s time to retire” at some
point in July or August of 2006. (Wojtanek Dep. Tr. 188.)

14

terminate him after he sent the July 31, 2006 letter complaining of poor treatment.10
(Pl.’s SOAF ¶ 4; Wojtanek Aff. ¶ 33.) Even if Wojtanek had established their
involvement in his termination, these comments alone would be insufficient to establish
direct evidence of age discrimination, especially when viewed in the context of
Wojtanek’s well-documented disciplinary record. See Kaniff v. Allstate Ins. Co., 121
F.3d 258, 263 (7th Cir.1997) (finding that suggestion of retirement did not alone give
rise to an inference of discrimination, where it was made after plaintiff was found to
have engaged in improper conduct); but see, id. at 263 (noting that “hounding” an
employee about retirement may permit a jury to infer discrimination).
As for unfair treatment to other employees in the protected class, Wojtanek has
alleged that Consolidated mistreated and fired a number of older employees, and
replaced them with younger employees. (Def.’s SOF ¶ 38-60; Wojtanek Dep. Ex. 14 at
12-14.) However, as Consolidated points out, Wojtanek has provided no support for
these allegations other than inadmissable hearsay and speculation. (See, e.g., Pl.’s
Resp. to Def.’s SOF ¶¶ 38-60, citing no supporting documents.) Wojtanek also
admitted at his deposition that he had no personal knowledge regarding each of the
older employee’s alleged termination. (See Def.’s SOF ¶¶ 38-60, citing Pl.’s Dep. Tr. )
In the face of the declaration of Mike Ross, who explains the actual circumstances
surrounding any terminations, resignations, or transfers of those employees, Wojtanek’s

10

To the extent that Wojtanek would argue that Ward, served merely as a “cat’s paw,” (an
unbiased decision maker who is being used as a tool by a biased employee; here, Jacob) that argument
would also fail. See Lindsey v. Walgreen Co., 615 F.3d 873, 876 (7th Cir. 2010) (merely showing that the
biased employee uttered offensive slurs, does not establish that she manipulated the decision maker).

15

unsupported allegations fall short.11 See Karazanos, 948 F.2d at 337 (7th Cir. 1991)
(noting that affidavits or depositions based on speculation, rumor, or conjecture are not
sufficient to defeat a properly supported motion for summary judgment). As we explain
below, Wojtanek’s allegations of younger employees receiving more favorable treatment
are similarly flawed.
For all of these reasons, we conclude that Wojtanek has failed to present a
“convincing mosaic” of circumstantial evidence that would allow a jury to infer intentional
discrimination. Isbell, 418 F.3d at 794. We turn to the indirect method.
2.

Indirect method

To survive summary judgment under the indirect method, Wojtanek must first
establish a prima facie case of age discrimination by showing that (1) he is a member of
a protected class; (2) he was meeting his employer's legitimate expectations; (3) he
suffered an adverse employment action; and (4) similarly situated individuals outside
the protected class were treated more favorably than he. Farr v. St. Francis Hosp. &
Health Ctrs., 570 F.3d 829, 833 (7th Cir. 2009). If Wojtanek establishes a prima facie
case, the burden shifts to Consolidated to “produce a legitimate, noninvidious reason for
its actions.” Atanus v. Perry, 520 F.3d 662, 672 (7th Cir. 2008). If Consolidated
establishes its burden, Wojtanek must demonstrate that the reasons offered were a
pretext for discrimination. Naik v. Boehringer Ingelheim Pharmaceuticals, Inc., 627 F.3d

11

According to Ross, Spialek was terminated when his position was eliminated; Stoops was
transferred to another facility with no change in his compensation or benefits; Reyna voluntarily retired;
Jacob left by mutual agreement; Giovenco resigned due to family obligations, and Kaczor was terminated
after reaching the fourth step of the progressive disciplinary policy for a safety violation. Ross Decl. ¶¶ 28,
30-31, 33-35.) Consolidated had no record of a “Brad” or “Kovitz.” (Id. ¶¶ 29, 32.)

16

596, 600 (7th Cir. 2010). Summary judgment is appropriate if the employee fails to
establish any of the elements of the prima facie case. Atanus, 520 F.3d at 673.
As we have already resolved the third prong in plaintiff’s favor, (and plaintiff
undoubtedly satisfies the first), left at issue here are the second and fourth prongs of the
indirect method test. We easily conclude that plaintiff cannot satisfy the second prong
given his spotted disciplinary record. Although Wojtanek attempts to dispute some of
the disciplinary actions taken against him, he has failed to provide the Court with a
“detailed refutation” of any of them and offers little more than his own opinion that he
was a stellar employee. See Gillespie v. Potter, No. 10 C 2247, 2011 WL 3510925
(N.D. Ill. Aug. 10, 2011) (citing Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1460–61
(7th Cir.1994) (detailed refutation of events which underlie the employer's negative
performance assessment creates a factual issue of whether employer's explanation is
credible or merely a pretext for discrimination)); see also, Williams v. Seniff, 342 F.3d
774, 789 (7th Cir. 2003) (noting that absent personal knowledge or sufficient evidence,
“an employee's self-serving statements about his ability are insufficient to contradict an
employer's negative assessment of that ability.”).
Further, Wojtanek testified that he had no reason to doubt that his second
disciplinary action was an inaccurate depiction of his performance. (Wojtanek Dep. Tr.
25.) He also admitted that he did in fact spend three hours trying to repair the trimmer.
(Id. at 93.) To the extent that Wojtanek alleges that the July 28, 2006 fluorine incident
was a result of sabotage, he has provided nothing but inadmissable hearsay to support
that allegation. (See Wotanek Aff. ¶ 30; Wojtanek Dep. Tr. 314-315.)
We also note that Wojtanek fails to satisfy the “similarly situated” prong. To do
17

so, the younger employees who received more favorable treatment must be “directly
comparable in all material respects.” Sartor v. Spherion Corp., 388 F.3d 275, 279 (7th
Cir. 2004). “This requires the plaintiff to show not only that the employees reported to
the same supervisor, engaged in the same conduct, and had the same qualifications,
but also show that there were no differentiating or mitigating circumstances as would
distinguish the employer's treatment of them.” Ineichen v. Ameritech, 410 F.3d 956,
960 (7th Cir. 2005). Again, Wojtanek has provided nothing more than conclusory
statements regarding preferential treatment towards younger employees.12 In fact,
when pressed for more information at his deposition, he could not name specific
younger individuals who received benefits that he supposedly did not. (Wojtanek Dep
Tr. 234, 237, 240, 283.) Such vague allegations are insufficient to satisfy the “similarly
situated” prong.
Even if Wojtanek could satisfy a prima facie case of discrimination, Consolidated
has offered sufficient evidence to support a legitimate reason for termination, namely his
poor performance and violation of company rules. We note that we need not ask
whether Consolidated made the correct decision. See Ineichen, 410 F.3d at 961 (“[I]t is
not the court's concern that an employer may be wrong about its employee's
performance, or be too hard on its employee.”). Instead, we need only ask whether the
proffered reason was pretextual. Id. Here, where Wojtanek has offered no evidence to
support a finding of pretext, we answer that question in the negative.

12

For example, in his SOAF, Wojtanek states generally, “The GPMs ages 30 and 40 violated the
Consolidated Rules, committed gross misconduct, and were not suspended, they receives promotion
[sic].” (Pl.’s SOAF, ¶ 32.) See also, Pl.’s Mem. at 8, “Juan Perez Jr., age 32, GPM, was treated with
respect and dignity.”

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Lastly, we note that two additional facts suggest a lack of discrimination. First,
Wojtanek was initially hired when he was 61. Given that Consolidated hired Wojtanek
when he was 21 years into the protected class, and allegedly fired him only four years
later, “the court can infer that his later firing was not due to his age.” Ritter v. Hill 'N
Dale Farm, Inc., 231 F.3d 1039, 1044 (7th Cir. 2000). Second, despite Wojtanek’s prior
allegations that he was replaced by Juan Perez Jr., who is outside the protected class,
the undisputed evidence shows that he was in fact replaced by Giovenco, who is one
year older than plaintiff. While such facts do not foreclose a finding of discrimination,
“they do create an inference of nondiscrimination,” particularly on the record before us.
Id.
For all of these reasons, Wojtanek has failed to meet his burden under the
indirect method. As such, defendant’s motion is granted with respect to plaintiff’s
termination claim.
C.

Plaintiff’s Harassment Claim

Plaintiff has also alleged age-based harassment primarily at the hands of his
supervisor, Jacob. According to Wojtanek, he was subjected to slavery-like treatment
and a hazardous work environment. (Wojtanek Aff. ¶ 15.) Specifically, Wojtanek has
alleged, among other things, that (1) Ward and Jacob ordered him to pick up spider
webs, dead insects and cigarette butts; (2) he was left alone to shut down the plant; (3)
he was denied time off; (4) that Jacob allegedly pulled his shirt and yelled at him when
he could not fix a machine; (5) that Jacob pointed a knife at his stomach and a steel bar
in his crotch; (6) that Jacob drew a vulgar picture and placed Wojtanek’s name on it;
and (7) that Jacob often degraded him and called him names. (See Def.’s SOF ¶ 72;
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Wojtanek Aff. ¶ 30; Pl’s SOAF ¶ 18; see also Pl.’s SOAF Ex. 8-B - 8/22/11 letter to
President Jeffrey Green describing harassment.)
Defendant first argues that plaintiff’s harassment claim must be dismissed
because he failed to include that claim in his IDHR charge. It is well settled that a
plaintiff must file a charge at the administrative level before filing a complaint alleging a
violation of the ADEA in federal court. Ajayi v. Aramark Bus. Serv., Inc., 336 F.3d 520,
527 (7th Cir. 2003). “To determine whether [the plaintiff] failed to exhaust his
administrative remedy, courts typically apply the ‘expected scope of investigation test,’
which determines whether a plaintiff alleged sufficient facts in her EEOC complaint to
put the EEOC on notice of the other claim.” Jones v. Illinois, No. 10 C 7200, 2011 WL
2110278, at *5 (N.D. Ill. May 25, 2011). In doing so, the pertinent question is "whether
the charge that was timely filed was sufficiently broad to include the claims the plaintiff
later raises in court." Ajayi, 336 F.3d at 527.
Here, Wojtanek’s IDHR charge certainly did not allege the breadth of harassment
now before this Court. However, Wojtanek did specifically name Jacob and alleged that
he “got in the way,” disturbed his work, and sabotaged his equipment. (See “Charge of
Discrimination”, attached to Pl.’s Compl.) Because we must liberally construe the
administrative charge, “so that courts may also consider claims that are reasonably
related to or grow out of [that charge],” see Jones, 2011 WL 2110278, at *5, we
conclude that plaintiff exhausted his administrative remedies and will consider his
harassment claim on the merits.13

13

We do not reach the same conclusion with respect to plaintiff’s claim of “fraud and conspiracy
with Union.” (Pl.’s Compl. ¶ 12(h).) Plaintiff’s IDHR charge makes no mention of such a claim and, as

20

To survive summary judgment on his harassment claim, Wojtanek must prove
that (1) the work environment was both subjectively and objectively offensive; (2) his
age was the cause of that harassment; (3) the conduct was severe or pervasive; and (4)
there was a basis for employer liability. See Montgomery v. Am. Airlines, 626 F.3d 382,
390 (7th Cir. 2010).
On the record before us, we disagree with Consolidated that the alleged
harassment does not rise to the level of actionable conduct. Accepting Wojtanek’s
allegations as true, he has described an environment in which he was not only
degraded and humiliated, but threatened physically. See Hilt-Dyson v. City Of Chicago,
282 F.3d 456, 466 (7th Cir. 2002) (noting that to be actionable, harassment must be
“severe and pervasive”). Where Wojtanek’s harassment claim falls short, however, is
that he has failed to show that Jacob’s offensive treatment was a result of his age.
Instead, it appears that Wojtanek and Jacob simply did not get along. This is illustrated
by Wojtanek’s testimony that no other GPM’s, young or old, suffered the same
malicious treatment. (See Def.’s SOF ¶¶ 73-79; see also Wojtanek Aff. ¶ 30.) Absent
evidence of a connection between the alleged harassment and plaintiff’s age, such a
personality conflict is not actionable. See Uguroglu v. Gutierrez, No. 2007 WL 2738647,
at *5 (N.D. Ill., Sept. 11, 2007); see also; Benuzzi v. Board of Educ. of City of Chicago,
647 F.3d 652 (7th Cir. 2011), Uhl v. Zalk Josephs Fabricators, Inc., 121 F.3d 1133,
1137 (7th Cir. 1997) (“A personality conflict doesn't ripen into an ADA claim simply

such, that claim is not properly before this Court and is dismissed. See Teal v. Potter, 559 F.3d 687, 691
(7th Cir. 2009).

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because one of the parties has a disability.”). Therefore, defendant’s motion is granted
with respect to Wojtanek’s harassment claim.
IV.

Conclusion
For the foregoing reasons, defendant’s motion for summary judgment [89] is

granted. Judgment is entered in favor of defendant and against plaintiff. It is so
ordered.

ENTERED:

__________________________
MICHAEL T. MASON
United States Magistrate Judge

Dated: September 12, 2011

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