Giannopoulos v. Brach & Brock Confections, Inc.

• Decision Date: 26 March 1997
• Docket Number: No. 96-2230,96-2230
• Citation: 109 F.3d 406
• Parties: 73 Fair Empl.Prac.Cas. (BNA) 1032, 70 Empl. Prac. Dec. P 44,617 John GIANNOPOULOS, Plaintiff-Appellant, v. BRACH & BROCK CONFECTIONS, INC., an Illinois corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 406

109 F.3d 406

73 Fair Empl.Prac.Cas. (BNA) 1032,

70 Empl. Prac. Dec. P 44,617

John GIANNOPOULOS, Plaintiff-Appellant, v. BRACH & BROCK CONFECTIONS, INC., an Illinois corporation Defendant-Appellee.

No. 96-2230.

United States Court of Appeals Seventh Circuit.

Argued Jan. 10, 1997.

Decided March 26, 1997.

Glenn Seiden, Lawrence Edmund Sommers (argued), Seiden & Associates, Chicago, IL, for plaintiff-appellant.

Gregory J. Malovance, Joseph James Torres (argued), Winston & Strawn, Chicago, IL, for defendant-appellee.

Before POSNER, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

John Giannopoulos lost his job with E.J. Brach Corporation ¹ after Brach determined that he had punched another employee. Giannopoulos denies having thrown a punch, and he brought suit contending that Brach actually discharged him because of his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. The district court granted summary judgment in favor of Brach, finding that Giannopoulos had failed to identify evidence raising a question of fact as to the honesty of Brach's belief that Giannopoulos had punched his co-worker. We affirm.

I.

Giannopoulos worked for E.J. Brach at its candy-making facility in Chicago for more than 25 years. From approximately 1978 through his termination, he held the post of union steward. At the time of his discharge, Giannopoulos was approximately fifty-three years old, and thus within the class of individuals forty years and older protected by the ADEA. Fellow Brach employee Michaelangelo Abbinanti, whom Giannopoulos was accused of punching, was thirty-five. Abbinanti knew Giannopoulos slightly, having worked with him once for several hours about a year and a half before the encounter that resulted in Giannopoulos' discharge. Abbinanti recalled that Giannopoulos had been difficult with him on that occasion, and he had reported this to his group leader.

On the afternoon of June 22, 1993, Giannopoulos completed his shift in the gum department, changed out of his work clothes, and walked outside the plant to his car in the employee parking lot. There he discovered another car, driven by Abbinanti, blocking his own car. At that time, the plant was operating at full employment (with some 2,200 hourly employees), so parking in the lot was at a premium. Second-shift workers like Abbinanti often had to wait for first-shift workers like Giannopoulos to leave before they could find an open space, and this is exactly what Abbinanti was doing.

Giannopoulos recalls that he sat in his car for a moment, allowing the summer heat to vent from the vehicle and waiting for Abbinanti to move. Ultimately he honked his horn and with a gesture indicated that Abbinanti should get out of the way. Abbinanti, according to Giannopoulos, inquired with a gesture which way Giannopoulos wanted to go. Then, when Giannopoulos indicated north, Abbinanti gave him the finger. He did, however, move his automobile. An angry Giannopoulos got out of his car and confronted Abbinanti. The two engaged in a heated argument that culminated in Abbinanti's threat to call the police and with Giannopoulos' observation that Abbinanti obviously knew where Giannopoulos worked and could report him if he wished. Giannopoulos insists, however, that he never hit Abbinanti. Rather, he simply got into his car and drove home.

Abbinanti tells a different version. When he saw that Giannopoulos was preparing to leave the lot, Abbinanti inquired with a gesture in which direction Giannopoulos intended to steer his car. He received no answer, so Abbinanti simply moved his car out of the way and waited to take Giannopoulos' spot. Without explanation, however, Giannopoulos exited his car, walked up to Abbinanti's vehicle, and, through the open window, punched Abbinanti in the jaw. Professedly stunned, Abbinanti asked Giannopoulos what he had done that for. Giannopoulos purportedly answered that question with an obscene gesture and returned to his own car. Abbinanti got out of his car and shouted that he would report Giannopoulos. Giannopoulos told him to "go ahead" and drove away. Abbinanti copied down the license plate number of his car.

Abbinanti immediately reported the incident to Brach security personnel, and then visited the plant infirmary, where he was given a Tylenol and told to report for duty. Abbinanti had been unable to give security personnel Giannopoulos' full name, but while he was in the infirmary he was shown a photograph of Giannopoulos and confirmed that it was he who had struck him. Abbinanti also named Brach employee Louis Tirado as a witness to the incident.

John Klepper, then Brach's Labor Relations Manager, ² was informed of the incident by a security employee and commenced an investigation. Within a day or two after the episode, he convened a meeting with Giannopoulos, Abbinanti, and Walter Rhodes, the business agent for the employees' union. After Giannopoulos and Abbinanti recounted their respective versions, Luis Tirado was summoned and, outside the presence of Giannopoulos and Abbinanti, told Klepper what he had seen.

Tirado was not acquainted with either man. On the day of the altercation, he had parked his car and was on his way into the plant for the second shift when his attention was drawn to the two men by the commotion. He saw Abbinanti sitting in his car and Giannopoulos standing at the driver's window. He witnessed Giannopoulos strike the other man with his fist and walk away. After hearing Tirado's account, Klepper terminated the meeting but kept looking into the matter. ³

Giannopoulos subsequently referred Klepper to Vasilios Sarantopoulos, who had also witnessed the incident. Like Tirado, Sarantopoulos was on his way into the plant to work the second shift when the altercation took place. Sarantopoulos had seen both Giannopoulos and Abbinanti standing outside of their cars, shouting and gesturing at one another before Giannopoulos got into his car and drove out of the lot. He did not see any punch thrown.

Before concluding his investigation, Klepper also reviewed tapes from the security cameras in the parking lots and the written reports prepared by security and infirmary personnel who had spoken with Abbinanti immediately after the incident. Klepper could find no visual record of the encounter on the security tapes. ⁴

Abbinanti had spoken to Security Sergeant M. Davis immediately after his encounter with Giannopoulos, and Davis had prepared a written report based on what Abbinanti told him had occurred. That report was consistent with the version Abbinanti had told Klepper himself. Davis had also spoken with Luis Tirado, who had, consistent with his subsequent statement to Klepper, indicated that Giannopoulos struck Abbinanti in the face. The nurse who had seen Abbinanti in the infirmary recorded a similar version of events.

Based on the evidence before him, Klepper concluded that Giannopoulos did punch Abbinanti in the face. In reaching that conclusion, he relied primarily on the eyewitness account given by Tirado, whom Klepper perceived to be an unbiased witness with no reason to lie. Although Sarantopoulos, the other bystander, had not seen Giannopoulos strike Abbinanti, Klepper concluded that his observations of the two combatants standing outside their cars yelling at one another were consistent with him having only seen the tail end of the encounter, after the punch was thrown.

Klepper concluded that both men should be disciplined. Although he was unable to determine who had initiated the argument, Klepper believed that Abbinanti had made an obscene gesture toward Giannopoulos and otherwise behaved improperly. But his behavior did not rise to the level of a dischargeable offense, in Klepper's view, and Klepper decided that a suspension and a "final warning" (meaning that any further disciplinary trouble would result in termination) constituted sufficient punishment. Klepper found Giannopoulos' behavior, on the other hand, to represent a dischargeable offense that could not be excused even if, as Klepper believed, Abbinanti had made an obscene gesture. In Klepper's view, striking a fellow employee on company premises was one of the most serious offenses that can occur in an industrial environment. Klepper decided to terminate Giannopoulos. ⁵

Both men were notified of the discipline Klepper had decided to impose, and Giannopoulos filed a grievance protesting his discharge. Klepper subsequently met with Giannopoulos and two union representatives to discuss the grievance. At that time, in view of Giannopoulous' years of service to the company, Klepper offered to allow Giannopoulos to retain his job if he would acknowledge having struck Abbinanti. Giannopoulos declined the offer, and with that the matter came to a close. The union did not seek to arbitrate the grievance, and Giannopoulos' employment with Brach ended.

Giannopoulos subsequently filed charges of age discrimination with the Illinois Department of Human Rights and the EEOC, and after the requisite period of time passed, he filed the instant suit in the district court. At the conclusion of discovery, Brach moved for summary judgment, contending that the undisputed facts before the court revealed that Giannopoulos was fired not because of his age but because he had struck a fellow employee. In compliance with the Northern District of Illinois' Local General Rule 12(M), Brach filed a detailed statement of the facts that it believed were undisputed. That statement outlined the course of Klepper's investigation, articulated the reasons why Klepper concluded that Giannopoulos had in fact struck Abbinanti and why discharge was the appropriate sanction for that act, and posited that age played no role in Klepper's decision to discharge Giannopoulos. R. 19 para. 54. In responding to the motion for summary judgment, Giannopoulos filed no statement in compliance with Loc...