Clark Oil & Refining Corp. v. Golden

• Court: Appellate Court of Illinois
• Writing for the Court: SULLIVAN
• Citation: Clark Oil & Refining Corp. v. Golden, 448 N.E.2d 958, 114 Ill.App.3d 300, 70 Ill.Dec. 80 (Ill. App. 1983)
• Decision Date: 22 April 1983
• Docket Number: No. 82-2963,82-2963
• Parties: , 70 Ill.Dec. 80, 51 Fair Empl.Prac.Cas. (BNA) 2 CLARK OIL & REFINING CORPORATION, Plaintiff-Appellant, v. Dwight A. GOLDEN, Illinois Human Rights Commission, and Department of Human Rights of the State of Illinois, Defendants-Appellees.

Page 958

448 N.E.2d 958

114 Ill.App.3d 300, 70 Ill.Dec. 80,

51 Fair Empl.Prac.Cas. (BNA) 2

CLARK OIL & REFINING CORPORATION, Plaintiff-Appellant, v. Dwight A. GOLDEN, Illinois Human Rights Commission, and Department of Human Rights of the State of Illinois, Defendants-Appellees.

No. 82-2963.

Appellate Court of Illinois First District, Fifth Division.

April 22, 1983.

Susan Margaret Vance, Henry C. Krasnow, Mandel, Lipton & Stevenson Limited, Chicago, for plaintiff-appellant.

Neil F. Hartigan, Chicago, for defendants-appellees; Fredric D. Tannenbaum, Chicago, of counsel.

SULLIVAN, Justice:

This is an appeal from an order of the trial court affirming a decision of the Illinois Human Rights Commission that plaintiff violated section 3(a) of the Fair Employment Practices Act (Ill.Rev.Stat.1979, ch. 48, par. 853(a)) ¹ in that it discriminated against Dwight A. Golden (defendant) on account of his race with respect to his discharge and the terms and conditions of his employment. Plaintiff contends that defendant failed to (a) establish a prima facie case of discrimination by showing that at the time he was fired he was a competent employee, and (b) prove that its reason for firing him--poor job performance--was merely a pretext to cover up race discrimination.

Defendant began his employment with plaintiff in November 1973 as a product loader, but was promoted to a number three chemical operator (3 operator) in January 1974 and later to a number two cumene operator (2 operator) in December 1977. As an operator, defendant was responsible for monitoring tanks and pumps used in the refining of oil products to prevent overflow and spillage. He was fired on June 2, 1978, for "reasons including, but not limited to excessive absenteeism, sleeping on the job, and having caused three tank spills in May, 1978." In his charge filed before the Illinois Fair Employment Practices Commission (FEPC), defendant alleged that he was fired because of his race and not because of his work performance.

The FEPC issued a complaint against plaintiff, and at a hearing thereon before an administrative law judge, defendant testified that he was the first and only black employee in the chemical unit of plaintiff's plant in Blue Island, Illinois (the plant). Each shift in the unit was staffed by a number one operator, who monitored the level of chemicals in each tank within the unit from a central location, and three number 2 or 3 operators who supervised 25 to 30 tanks moving chemicals from one to another and monitoring the level of product therein, usually by checking gauges on the outside of each tank. The four operators worked independently, but would help each other. During the 4 1/2 years that he worked as an operator, he caused six spills, for all but 1 or 2 of which he was either formally reprimanded or suspended without pay. When he was first promoted to 3 operator, the training was to come mostly from co-workers, but they refused to teach him. He complained about this to his supervisor, Delbert Gibson, who took no action other than to tell him to "keep trying." After 2 or 3 weeks of training, Gibson reviewed his work and demoted him to product loader on the basis that he was not qualified for the position of 3 operator. He (defendant) immediately went to Bert Foster, the assistant plant manager, and complained of his inadequate training, which resulted in his demotion. Foster ordered Gibson to personally train him, and Gibson, although angry, spent 3 days doing so. After his reinstatement as a 3 operator, his co-workers were still hostile and uncooperative, and anonymous letters containing racial slurs and veiled threats appeared on his locker every 3 or 4 days. When he complained, Gibson responded that "we can't make a lot of people like you," but promised to try to put a stop to the letters. Gibson placed a note in the daily instruction book ordering a stop to the letters, but did not threaten any disciplinary action. The letters finally stopped 4 or 5 months later, but his co-workers still refused to help him, although they assisted each other. He was cited for sleeping on the job, and did have difficulty during the first 2 years because he was not used to shift work. However, sleeping on the job was common practice among all of the operators, and the foremen would try to avoid catching the others by knocking or making noise before they entered the area, while making an effort to catch him (defendant). He complained about this disparate treatment to Fred Davidson, one of the foremen. His promotion to 2 operator necessitated a change in shift, and he immediately began having problems with Norman Duckworth, the number one operator on the new shift. He complained to Gibson about Duckworth's racial slurs, but his requests for a shift change, made 2 or 3 times, were denied. After a confrontation with Duckworth in March 1978, Duckworth began carrying a gun to work, and although he (defendant) reported this to Gibson, no disciplinary action was taken. Spills occurred at the plant every month or two and were generally caused by the negligence of an operator, although co-workers could sabotage one another by opening a valve after it had been set. This happened to him once, but when told of the incident, Gibson took no action. He admitted that he discussed his absenteeism with Gibson and Foster after receiving a letter about it in September or October of 1977; that he spilled acetone, a flammable liquid, in January 1975; that he had three spills in May 1978; that spills can be prevented; that he did not report to the assistant plant manager that Duckworth was carrying a gun; and that he never heard Gibson make any racially derogatory remarks.

Edward Scheutzow testified that he worked for plaintiff from June 1970 until January 1976. He was first assigned to the chemical unit, where he worked as a truck loader for 3 months before his promotion to 3 operator. In October 1973, he was transferred to the resin unit. While employed in the chemical unit, he caused the following spills: phenol and crude oil in the fall and winter of 1970; phenol in the summer of 1971; two phenol spills during an 8-hour shift in 1972; acetone in the summer of 1972; and acetone again in the summer of 1973. He had a number of smaller spills which he did not report. He became notorious for spilling, and both his foreman and Gibson knew of the seven spills described; however, his only discipline was being "yelled at," and he never received a written reprimand or a suspension. On one occasion, Gibson personally informed him that a tank in his area was overflowing, but merely commented that given his history of spills, he (Scheutzow) would have to be more careful. On the average, a spill occurred every two months at the plant, but there might be 2 or 3 in one week, then none for several months. Sleeping on the job was a common occurrence at the plant, because there was a lot of "dead time"; but, in general, workers were not disciplined for sleeping. He (Scheutzow) was caught and reprimanded for sleeping, but he believed no formal record was made of the incident because he never received a copy of it. The only way an operator can be trained for the job is learning from existing operators. Defendant was commonly called "dumb nigger" by his co-workers. He (Scheutzow) admitted that he did not enjoy working at the plant and was glad to leave, but he left amicably and of his own volition.

Earl Rousseau, director of employee relations at the plant, testified for plaintiff that his position entailed maintaining employee records, but he would have no knowledge of any infractions unless the supervisor chose to report them to him. There was an "affirmative action policy" in effect at the plant which was communicated to supervisory personnel, posted on bulletin boards, and explained to prospective employees. When an infraction occurred, an employee usually received an oral warning the first time, and thereafter a written record was made. He recommended that defendant be fired after reviewing his record. He talked to defendant approximately five times concerning work-related problems, but the derogatory notes and problems with Duckworth were not brought to his attention. He admitted that a supervisor had discretion in notifying him of any infraction; that there were no written policies on termination because of sleeping, spilling, or absenteeism, although a policy that three unexcused absences would result in termination was adopted on April 1, 1978; and that when defendant complained to him in 1974 or 1975 about discrimination, he (Rousseau) discussed the problem with Gibson, the assistant plant manager, and the plant manager.

Defendant, called as an adverse witness, further testified that he was not disciplined for a spill which occurred on May 9, 1978, but received a 3-day suspension for a spill on May 17, 1978. At that time, he was having personal problems and was engaged in a personal telephone conversation when one spill occurred. He left work because of illness on May 4 and May 15, 1978. In December 1977, he spilled caustic solution, and while Gibson recommended a 3-day suspension, he was not suspended after he filed a grievance. None of the spills involved finished products, and spills of finished product are more serious because the materials and time involved in manufacture cannot be recovered. His last three spills did not involve flammable material.

Delbert Gibson, chemical unit supervisor at the plant, testified that he was responsible for training and supervising foremen, chemical operators, and other workers within the unit. At a 1974 meeting, the plant manager ordered that everyone be treated equally, regardless of race or sex, and he (Gibson) followed that directive in evaluating employees. Defendant complained to him about receiving racially derogatory notes, and the letters stopped after he (Gibson) wrote a note in the daily instruction book...