Filipovic v. K & R Exp. Systems, Inc.

• Decision Date: 28 April 1999
• Docket Number: No. 98-1114,98-1114
• Citation: 176 F.3d 390
• Parties: Momcilo FILIPOVIC, Plaintiff-Appellant, v. K & R EXPRESS SYSTEMS, INCORPORATED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 390

176 F.3d 390

Momcilo FILIPOVIC, Plaintiff-Appellant, v. K & R EXPRESS SYSTEMS, INCORPORATED, Defendant-Appellee.

No. 98-1114.

United States Court of Appeals Seventh Circuit.

Argued Sept. 16, 1998.

Decided April 28, 1999.

Michael I. Leonard (argued), Mari H. Leigh, Bates, Meckler, Bulger & Tilson, Chicago, IL, for Plaintiff-Appellant.

Kenneth P. Ross (argued), Chicago, IL, for Defendant-Appellee.

Before COFFEY, ROVNER and EVANS, Circuit Judges.

COFFEY, Circuit Judge.

On July 19, 1993, the plaintiff-appellant, Momcilo Filipovic ("Filipovic"), filed charges with the Equal Employment Opportunity Commission ("EEOC"), alleging that his employer, the defendant-appellee K & R Express Systems, Inc., ("K & R") discriminated against him because of his Yugoslavian origin and in retaliation for prior complaints of discrimination. Specifically, Filipovic contended that he was denied a promotion, was "harassed and subject[ed] to derogatory language," and was given written warnings for various rule infractions. On December 20, 1993, Filipovic filed additional charges with the EEOC, this time complaining of retaliation based on K & R's denial of overtime and vacation requests. Some seven months later, on July 19, 1994, Filipovic filed other charges with the EEOC, alleging that, on the basis of his age, he was "rejected for a promotion." The EEOC issued findings of no cause on all three filings, and Filipovic filed suit in the United States District Court for the Northern District of Illinois, alleging discrimination based on national origin under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Filipovic did not pursue the age discrimination charge. K & R filed a motion for summary judgment which the trial court granted, ruling that certain allegedly discriminatory actions suffered by the plaintiff were time-barred under Illinois law and that the remaining actions did not create a hostile work environment. The plaintiff appeals, contending that he properly stated a claim of discrimination based on national origin under Title VII. We affirm.

I. BACKGROUND

Filipovic was born in Yugoslavia on July 10, 1939. In 1973, he emigrated to the United States, obtained citizenship, and took up residence in Illinois. On January 26, 1982, Filipovic was hired by K & R as a full-time dockman and joined the International Brotherhood of Teamsters, Local Union No. 710 ("union").

Beginning in 1984 and throughout his employment with K & R, Filipovic contends that he was subjected to a "continuing violation" of discrimination based upon his national origin. The centerpiece of his charge of discrimination is Filipovic's allegation that he was repeatedly called names and subjected to vulgar language by his coworkers for the eleven years of his employment prior to his filing suit. For example, coworkers referred to him as "scumbag," "pyromaniac," "piece of ass," "piece of shit," "stupid asshole," "sheep fucker," and "Russian dick head." According to Filipovic, K & R supervisory personnel also engaged in coarse language directed toward him at work. Sometime prior to 1990, Filipovic was called a "dirty Commie" by a former supervisor, and in 1993, another K & R supervisor called him a "fucking foreigner," and commented, with respect to the civil war in Yugoslavia, that "it seems to me all Serbians are barbarians." The undisputed facts at trial establish that Filipovic engaged in similar behavior, often calling his coworkers names in response.

Filipovic also contends that he was singled out for unfair treatment by K & R's management as a result of his national origin. On April 17, 1984, Filipovic went to lunch with dockman Bill Bartuch ("Bartuch"). Bartuch was well known around the company as having a "big" drinking problem. Intoxication during working hours is a terminable offense at K & R. If management has probable cause to suspect an employee is intoxicated, that employee is sent to a clinic for a blood alcohol test. Furthermore, a blood alcohol test is required under union work rules. Filipovic's supervisor, Jeffery Epstein ("Epstein") was told that Bartuch and Filipovic were seen entering a bar during their lunch break. In accordance with K & R's policies and union rules, Epstein sent Bartuch and Filipovic to submit to a blood alcohol test upon their return from lunch. Filipovic refused because of religious reasons and was discharged. Bartuch, who was not Yugoslavian, took the blood test. The afternoon of his discharge, Filipovic went to a hospital and submitted to a urine alcohol test, which yielded a negative result for alcohol. After receiving the results, K & R reinstated Filipovic with no disciplinary action.

Filipovic next contends he was discriminated against as a result of his national origin when he was issued a written warning for haphazardly loading freight on a truck trailer that resulted in a trailer fire on Interstate 94 outside of Albion, Michigan. When the freight that Filipovic improperly loaded in the trailer shifted, it fell on top of a heater stack and caused a fire on the truck which damaged the freight while en route. K & R issued Filipovic a warning letter, but did not suspend him, nor did the plaintiff suffer any loss of benefits or pay on account of the freight damage, which amounted to $30,000. As a result of the fire, K & R instead terminated Dave Davidson, the non-Yugoslavian supervisor who managed Filipovic's loading of the freight.

In 1985, Filipovic contends that he was discriminated against when he was investigated for possibly stealing company property. After freight is reported missing, K & R policy requires all persons who came in contact with the freight, as well as any persons who management believes might have information about the missing freight, to be interviewed by a private investigator. In this case, the investigator asked Filipovic whether he had stolen fifteen calculators from the company, and Filipovic responded that he had not. The investigator went on to interview all other dockworkers as well as Filipovic's supervisor, Epstein.

Filipovic also alleges he was discriminated against and wrongfully terminated as a result of his national origin on December 3, 1993, due to his failure "to follow repeated direct verbal instruction by supervisor, John Sperling." The matter was submitted to binding arbitration, where Filipovic's union steward stressed to Filipovic the importance of following directions. On June 9, 1994, he was reinstated at K & R. The discharge was converted to a six-month disciplinary suspension without pay or other benefits, but with no loss of seniority.

Filipovic also claims that K & R discriminated against him when he was falsely accused of misusing company time. In 1994, K & R issued Filipovic a written warning letter after he engaged in a five-minute conversation with a fellow dockworker. The employee to whom the plaintiff was speaking, Kevin Nykiel ("Nykiel"), was issued an identical warning letter by Epstein for misuse of company time. Nykiel is not Yugoslavian.

Filipovic next contends that he was discriminated against when he was accused of mishandling freight in June of 1994, September of 1994, and April of 1995. In each case, Filipovic's supervisor, Epstein, issued written warnings for damaged freight. Filipovic received no disciplinary action for any of the three incidents of freight mishandling other than the warning letters, and Filipovic provided no evidence that the warnings were without merit.

Filipovic also claims that he was discriminated against for being Yugoslavian when he was denied a promotion to the position of "spotter." ¹ Filipovic acknowledges that K & R is bound to follow union-imposed seniority rules in allocating spotter positions to workers. Filipovic admits that he is eleven places lower on the seniority list than the last worker in Filipovic's position who became a spotter. Furthermore, spotter positions are not available frequently; the last time a full-time dockman, such as Filipovic, was trained as a spotter occurred in 1993.

Finally, Filipovic contends that he was discriminated against for being Yugoslavian by being wrongly denied employee benefits, such as the opportunity to work overtime and freely change the dates of his vacation. K & R policy provides that when senior dockmen feel they are erroneously denied overtime work, they have the opportunity to grieve their pay claims. Filipovic had done so on previous occasions successfully and was awarded back pay. Furthermore, K & R's time sheets establish that Filipovic received overtime work at a rate equal to or greater than the other senior workers on his shift. Filipovic was not denied the opportunity to change his vacation schedule, but was sent home from work one Monday morning because he had simply forgotten that he had previously scheduled his vacation to begin that week. Under K & R policy, Filipovic would have been allowed to work that week if he had returned a vacation paycheck he had previously received and cashed. In this particular circumstance, Filipovic had already cashed the check, and by allowing Filipovic to remain at work and in addition receive his vacation pay, K & R would in effect have been giving him double-pay.

Filipovic also was involved in three altercations with a co-worker, Edmund Desparrios ("Desparrios"), which he contends were based on his national origin. The first incident occurred in February of 1992 and the second in March of 1992. In May of 1992, a police officer contacted Filipovic's supervisor, Epstein, after Filipovic claimed that Desparrios had followed him as he drove home after work and threatened him. Epstein summoned both men, along with their union steward, and warned them to keep their personal problems out of the workplace.

In response to all of these incidents of perceived discrimination against him, Filipovic filed three charges with the EEOC in 1993 and 1994. In each case, the EEOC concluded that...