Czarnowski v. Desoto, Inc., 77 C 695.

• Decision Date: 29 July 1981
• Docket Number: No. 77 C 695.,77 C 695.
• Citation: 518 F. Supp. 1252
• Court: U.S. District Court — Northern District of Illinois
• Parties: Gregory I. CZARNOWSKI, Plaintiff, v. DESOTO, INC., Defendant.

518 F. Supp. 1252

Gregory I. CZARNOWSKI, Plaintiff, v. DESOTO, INC., Defendant.

No. 77 C 695.

United States District Court, N. D. Illinois, E. D.

July 29, 1981.

COPYRIGHT MATERIAL OMITTED

Stephen G. Seliger, Chicago, Ill., for plaintiff.

Herbert M. Berman, Chicago, Ill., for defendant.

MEMORANDUM OPINION

FLAUM, District Judge:

This cause of action arises out of a claim by plaintiff based upon title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3 (1978) ("title VII"). Plaintiff contends that defendant retaliated against plaintiff in violation of section 2000e-3 by giving an unfavorable and untrue reference to prospective employers, the Commonwealth of Puerto Rico ("Commonwealth") and Congoleum Corporation ("Congoleum"), and by stating to Congoleum that plaintiff had filed a charge against defendant with the Equal Employment Opportunity Commission ("EEOC").¹ Defendant contends that any reference or comments to prospective employers of plaintiff were accurate responses based upon plaintiff's performance as an employee of defendant and were not in retaliation for plaintiff's filing of a discrimination charge with the EEOC. The court concludes that plaintiff has failed to establish that defendant retaliated against plaintiff in violation of title VII regarding plaintiff's application for employment with Commonwealth. The court also concludes that plaintiff has failed to establish that defendant retaliated against plaintiff in violation of title VII as to defendant's statement to Congoleum regarding plaintiff's reason for leaving defendant's employ. The court further concludes that plaintiff has established that defendant retaliated against plaintiff in violation of title VII regarding defendant's statement to Congoleum that plaintiff had filed an EEOC charge. Accordingly, the court enters the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.

FINDINGS OF FACT

1. Plaintiff is a citizen of the United States who resides in Chicago, Illinois.

2. Defendant is a corporation with an office located at 1700 Mt. Prospect Road, Des Plaines, Illinois, who employs more than fifteen persons in the business of manufacturing and distributing paint and other wall coverings in interstate commerce.

3. Plaintiff was employed by defendant from August 17, 1970 to August 15, 1973.

4. During the period relevant to this cause of action, defendant was an employer engaged in an industry affecting commerce within the meaning of title VII. See 42 U.S.C. § 2000e(b), (g), and (h) (1978).

5. Defendant hired plaintiff as a salesman in defendant's "wall covering division" on August 17, 1970.

6. On or about February 1, 1973, defendant transferred plaintiff to defendant's "chemical coatings division" as a field merchandise representative under the supervision of John Nitz ("Nitz"), manager of the field merchandise group. The field merchandise group trains the paint department personnel of Sears, Roebuck, and Company.

7. On or about August 2, 1973, Nitz asked plaintiff to leave, stating that plaintiff was too aggressive and that Nitz had not seen any improvement in plaintiff's performance as a field merchandise representative.

8. On August 10, 1973, Nitz wrote a letter to plaintiff as a follow-up to their conversation on August 2, 1973. Nitz stated in the letter that the letter was formal notice of plaintiff's termination on or about September 2, 1973. The letter also states that, if the plaintiff so wished, defendant would provide plaintiff with a letter of recommendation and would assist plaintiff in producing a resume.

9. On August 14, 1973, plaintiff met with defendant's personnel supervisor, Diana Parks, for an exit interview. Plaintiff signed an "exit interview form" which stated that plaintiff's resignation was "due to lack of mutual understanding of position objectives and functions."

10. On August 15, 1973, plaintiff met with defendant's merchandise director, Stevenson Mountsier ("Mountsier"). Plaintiff requested the meeting to inform Mountsier of the nature of plaintiff's leaving the employ of defendant and to advise Mountsier of the status of the field merchandise group.

11. At the time that plaintiff left defendant's employ, plaintiff was receiving an annual salary of $13,560 from defendant, plus other benefits including pension and profit sharing, hospitalization, and health insurance.

12. On or about August 16, 1973, plaintiff filed charges with the EEOC and the Illinois Fair Employment Practices Commission alleging that defendant unlawfully terminated plaintiff's employment based upon plaintiff's religion and national origin.

13. On or about November 8, 1973, defendant acknowledged receipt of the EEOC charge filed by plaintiff.

14. In November 1973, plaintiff had two interviews with Jack Peninger of Commonwealth regarding the position of sales representative. This position with Commonwealth paid a salary of approximately $17,500 annually, plus health and retirement benefits, and one percent of net sales as commission.

15. On November 12, 1973, Commonwealth wrote to defendant requesting information regarding plaintiff's employment with defendant.

16. On November 21, 1973, James Morita of defendant's personnel office wrote a letter to Commonwealth stating that plaintiff resigned due to lack of understanding of position objectives and functions.

17. Plaintiff did not receive an offer of employment from Commonwealth.

18. On or about April 12, 1974, plaintiff filed an amended charge with the EEOC alleging that defendant had unlawfully retaliated against plaintiff for filing the original EEOC charge.

19. In November 1974, plaintiff applied for a position as sales representative for the Chicago area with Congoleum. On November 6 and 13, 1974, plaintiff met with Congoleum personnel in Chicago to discuss the position. As a result of these meetings, plaintiff was invited to meet with other Congoleum officials at Congoleum's home office in Kearney, New Jersey on November 22, 1974. Plaintiff was one of two finalists under consideration for the position of sales representative.

20. On November 19, 1974, Congoleum's personnel director Kenneth Baumler ("Baumler") contacted Dan Zacharski ("Zacharski") of defendant's personnel office for information concerning plaintiff's employment with defendant. Defendant's policy regarding such inquiries was to provide the former employee's dates of employment, title, and salary. Zacharski informed Baumler of plaintiff's dates of employment, salary, and that plaintiff was given the opportunity to resign due to plaintiff's misunderstanding as to his duties. Zacharski also informed Baumler that plaintiff had filed a charge with the EEOC.

21. At Congoleum's expense, plaintiff was flown to Congoleum's home office in Kearney, New Jersey for an interview on November 22, 1974. Plaintiff had a series of meetings with defendant's personnel, Anthony Bolin ("Bolin"), Richard Strong ("Strong"), and Baumler. The plaintiff's first meeting was with Bolin and Strong wherein salary and the requirements of the position of sales representative were discussed. The plaintiff's second meeting was with Baumler wherein general personnel policies and benefits were discussed. The third meeting was attended by plaintiff, Bolin, and Strong. At this third meeting, Bolin asked plaintiff if plaintiff had filed an EEOC charge. Plaintiff stated that he had filed such a charge. Bolin stated that he had no further questions. Plaintiff then met with Strong where the plaintiff's filing of the EEOC complaint against defendant was discussed again. Plaintiff did not meet further with the Congoleum officials and returned to Chicago.

22. On December 9, 1974, plaintiff received a letter from Congoleum informing him that Congoleum had hired someone else for the sales representative position. The position was filled in January 1975. Congoleum paid a salary of approximately $17,500 annually, plus health and retirement benefits.

23. Congoleum terminated its Chicago operation in January 1976.

24. Plaintiff was unemployed from August 15, 1973 through November 17, 1975. From November 17, 1975 to August 31, 1976, plaintiff was employed as a sales representative by Allied Fiber Tube and Can Company in Chicago, Illinois at a salary of $12,000.00 annually. Plaintiff was unemployed from September 1976 to June 1977. In June 1977, plaintiff was employed as a merchandise representative by Wagner Spray Tech Corporation ("Wagner") in Chicago, Illinois at a salary of $13,200.00 annually. Plaintiff remains employed by Wagner as a sales representative at a salary of $27,565.00 annually.

25. On June 30, 1976, the EEOC issued a determination that there was reasonable cause to believe plaintiff's allegation of retaliation regarding the reason given to Commonwealth by defendant for plaintiff leaving the employ of defendant.

CONCLUSIONS OF LAW

1. The court has jurisdiction over this cause of action pursuant to title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(3) (1978).

2. Title VII provides, in pertinent part:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a) (1978).

3. Defendant is an employer for the purpose of title VII as defined in 42 U.S.C. § 2000e(b) (1978).

4. Plaintiff, as a former employee of defendant, can maintain a cause of action based upon retaliation as prohibited by 42 U.S.C. § 2000e-3 (1978). Pantchenko v. C. B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir. 1978) (per curiam); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165 (10th Cir. 1977).

5. It is not necessary for a plaintiff to establish the validity of the underlying...