105 F.3d 343 (7th Cir. 1997), 95-2214, Plair v. E.J. Brach & Sons, Inc.

Docket Nº:95-2214.
Citation:105 F.3d 343
Party Name:John PLAIR, Plaintiff-Appellant, v. E.J. BRACH & SONS, INCORPORATED and E.J. Brach Corporation, Defendants-Appellees.
Case Date:January 23, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 343

105 F.3d 343 (7th Cir. 1997)

John PLAIR, Plaintiff-Appellant,


E.J. BRACH & SONS, INCORPORATED and E.J. Brach Corporation,


No. 95-2214.

United States Court of Appeals, Seventh Circuit.

January 23, 1997

Argued Oct. 21, 1996.

Page 344

Sharon Finegan Patterson (argued), Chicago, IL, for Plaintiff-Appellant.

Joel J. Africk, Kenneth R. Dolin, Catherine P. Wassberg, Stephen L. Wood, Jenner & Block, Chicago, IL, Gregory J. Malovance (argued), Adam S. Kosh, Winston & Strawn, Chicago, IL, for Defendants-Appellees.

Before MANION, DIANE P. WOOD, and EVANS, Circuit Judges.

MANION, Circuit Judge.

After working nineteen years for candy manufacturer E.J. Brach & Sons (Brach), John Plair was terminated for violating several company rules, including falsification of records and leaving his work area without authorization. Plair filed a grievance but the union declined to arbitrate. He then filed a charge with the EEOC alleging that he was terminated because of his race. After receiving a right to sue letter from the EEOC, Plair filed suit in the Northern District of Illinois again claiming race discrimination in violation of Title VII. The district court granted summary judgment for Brach. We affirm.

Plair, employed by Brach at its Kinzie Street plant in Chicago, worked the second shift, 2:30 p.m. to 12:30 a.m., moving candy and putting cherries on a conveyor belt. During the evening of October 26, 1992, Plair and his co-worker, Arco Jefferson, said they saw a bright light shining into the cherry processing area where they worked on the seventh floor. They went to the windows to look at the light. They said they saw two trains crossing on the railroad tracks below and heard the roar of train engines. Jefferson said that when he stuck his head out the window to get a closer look at the trains, a thin gold chain he was wearing fell off his neck to the ground below. Jefferson and Plair looked for the chain from the window but did not see it.

Around 11:45 p.m. that night, before the end of his shift, Plair left his work area. He knew that before leaving early he had to consult his supervisor, Joe Jackson. According to Jackson, when Plair finished his assigned work early, Brach's procedures were for Plair to sit and wait until the shift ended. Plair had seen Jackson five times that evening, the last time at 11:30 p.m. After completing his work, Plair said he twice looked for Jackson to tell him that for personal reasons he was upset and that he wanted to leave early. Plair did not find Jackson, but left work early anyway. According to Plair, he left work early because he was distraught

Page 345

over his impending divorce. Plair did not notify any other member of Brach's management or medical personnel of his decision.

Plair claims that after he left his work area he met Jefferson in the plant locker room. Jefferson asked Plair to help him search for the gold chain. Plair agreed. Neither had permission to leave the plant and neither punched out his time card. They left through the plant's front entrance using their computerized employee access card in the turnstile near a security guard. They did not inform Brach's security that they were leaving the plant.

Plair and Jefferson drove Jefferson's truck into the dark woods behind the plant. They said that they looked for the lost chain with the aid of cigarette lighters. After a few minutes they gave up and walked back towards the truck, where two Chicago police officers stopped them. Plair told the authorities he was looking for rocks for his gutter. He did not mention Jefferson's lost chain. The officers told them they were on private railroad property, that they could not drive there, and that they should leave. Plair and Jefferson drove a few blocks away, but only temporarily.

After the police left, Plair and Jefferson drove back and stopped at a 7-Up bottling plant located south of the Brach plant. They parked the truck and walked back to the wooded lot. After spending ten minutes in the woods, Plair and Jefferson began walking back to the truck but were stopped by security guards for 7-Up. Plair told them they were looking for a gold chain Jefferson had lost. One of the security guards, an off-duty police officer, searched Plair and Jefferson, searched Jefferson's truck, and then searched the area where he first saw Plair and Jefferson. Out in the field, he found several boxes of Brach candy weighing approximately 100 lbs. taped together with packaging wrap and a wooden board taped to the top. The guards called police and the same officers who had stopped Plair and Jefferson earlier responded. The guard turned the candy over to the officers. The police again questioned Plair and Jefferson and then arrested them. A criminal complaint was filed against them, but the charges were later dropped. The police detained Plair and Jefferson until approximately 11 a.m. on October 27th.

When Plair arrived for work the next day, he learned the company had suspended him pending investigation of the events of the previous evening. John Klepper, the plant's industrial relations manager, met with Plair and Jefferson on October 30th to discuss the night of October 26th. Plair told Klepper he left his work area at 11:45 p.m. without permission, without telling his supervisor, and without punching out. He told Klepper of the lost gold chain and their attempts to retrieve it, as well as the encounters with the police and the security guards. Plair's statement to Klepper was written down, and Plair signed it. At the meeting Plair did not mention the divorce or feeling ill, two reasons he later offered to explain his early departure.

Klepper investigated the events of that evening for Brach. He instructed Brach's security manager to meet with the bottling plant security guards to get their version of the events. Klepper determined that the "checker sheet," a production record, falsely showed that Plair and Jefferson had worked until 12:30 a.m., 45 minutes after Plair had left the plant. Plair's time card showed that he had punched out at 1:48 a.m., two hours after he left the plant. The other second-shift employees' time cards did not show anyone else punching out around that time. The train schedules did not show two trains running simultaneously on the tracks behind the Brach plant between 10 p.m. on October 26th and 1 a.m. on October 27th. Klepper confirmed with Jackson that Plair did not have permission to leave early. Klepper also visually examined the area behind the plant where Plair and Jefferson were found.

There is no dispute that Plair was aware of the specific work rules requiring him to punch out his time card at the end of his shift; that he was not allowed to have another employee punch out his time card; and that he was not allowed to leave his work area or the plant during his shift without management authorization. Klepper reviewed a "final warning" issued to Plair eight years earlier for leaving his work area and leaving the plant without proper management

Page 346

approval. Plair testified later that he did not recall the incident and that he did not sign the acknowledgment of the warning. Also, six weeks before the evening of October 26th, Plair was involved in another disciplinary incident. Plair's "beard net" hung around his neck while he was talking to an employee in another department, and Plair ignored a department supervisor's repeated requests that he replace the beard net. (Apparently, Plair did not realize the individual to whom he was speaking was a supervisor.) When the supervisor--who was black--attempted to explain to Plair the reason behind the beard net rule, Plair walked away and said he "did not want to hear any of [the supervisor's] long stories." Plair also refused to provide the supervisor with his name, identification card, department he worked in, or name of his supervisor. For these actions, Plair received a final warning before termination and a one-day suspension for insubordination and violation of sanitation rules.

With all of this information before him, Klepper concluded the following: Plair had left the plant before the end of his shift without his supervisor's approval; he had failed to punch out his time card as required; that someone else had punched Plair's time card two hours after Plair left the plant; that the checker sheet incorrectly recorded that Plair had worked a full shift; that Plair and Jefferson were found behind the Brach plant under suspicious circumstances with no rational basis for their presence; and that they gave conflicting reasons for being behind the plant where boxes of Brach candy were discovered. Given these conclusions, on November 3, 1992, Klepper discharged Plair and Jefferson. The termination letter alluded to "the circumstances surrounding the events of October 27, in which you were involved," and gave two reasons for termination:

Falsification of employment, production or time records, intentionally altering required medical documentation, or submitting false claims for insurance benefits.

Walking off the job and/or leaving the work area or the plant during one's scheduled working time without authorization from management.

Jackson, Plair's supervisor, replaced Plair with another employee, who was white. Plair filed a grievance challenging his termination, which Brach denied. His union, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 738, chose not to take the grievance to arbitration.

Now Plair claims Brach fired him because he is black. He sued Brach under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. Plair admits he left work without permission from his supervisor and that he failed to punch out. But he contends that Brach should be denied summary judgment because he had direct, circumstantial, and statistical evidence supporting...

To continue reading