Age and Gender Discrimination Case Rejected Due to Plaintiff's Poor Work Performance and Misconduct

The U.S. District Court for the Southern District of Illinois recently held in Lesicko v. Conoco Phillips Pipe Line Co. that the plaintiff was precluded from pursuing her claims of gender and age discrimination against her former employer due to her own misconduct at work and failure to meet the employer’s job performance expectations.

The plaintiff in the case, Julie Lesicko, was one of 18 employees working at Conoco Phillip’s (“CP’s”) East St. Louis terminal. Her employment began in June of 1995 and ended in March of 2007. Although Lesicko’s performance was initially good, she began experiencing problems in early 2001 when her position’s shift structure changed and a new supervisor was hired.

Lesicko received verbal and written warnings for misusing sick time, and in 2002, Lesicko made derogatory remarks about her supervisor in front of other employees and became aggressive and confrontational with co-workers. This behavior apparently continued into 2003 and 2004 and negatively impacted the relationships between employees and customers at CP. In September of 2006, CP received a call to its “AlertLine” by an employee complaining that Lesicko’s conduct was creating a hostile workplace. Specifically, it was reported that Lesicko “threatened her co-workers with lawsuits, screamed and cursed at them, cussed and used the ‘f word’ at co-workers and drivers, was abusive to them, was volatile, created turmoil in the building, threatened to get them fired and created a stressful working environment.”

Following an investigation, Lesicko was issued a one day suspension and given a “Final Warning” letter. However, six months later, trouble arose again when Lesicko threatened to beat up a co-worker. Lesicko’s schedule had her off work for eight days following the incident during which time CP conduced an investigation of the incident. Lesicko refused to participate in the investigation, and ultimately delivered a written resignation when she returned to work.

After receiving her Notice of Right to Sue from the EEOC, Lesicko filed a lawsuit against CP claiming that she had been discriminated against based on her gender and age in violation of Title VII and the ADEA. Specifically, Lesicko claimed CP unfairly denied her vacation requests, denied her training and unfairly disciplined her all of which created a hostile working environment and ultimately resulted in her constructive discharge. Lesicko also claimed that she had been harassed with sexually suggestive comments which were made toward or in front of her and by sexually oriented materials she claimed were left in her locker and on desks.

Rejecting all of Lesicko’s claims, the court noted that the sexually oriented comments were made nearly seven years prior to Lesicko’s alleged constructive discharge and were therefore time barred. The court further noted that, even if the comments were not time barred, there was no evidence connecting the comments to Lesicko’s constructive discharge. Consequently, the court determined that Lesicko was unable to prevail under the “direct proof” model.

The court further found that Lesicko’s age and gender discrimination claims failed under the “indirect proof” model because Lesicko could not establish that she was meeting CP’s legitimate performance expectations at the time of her alleged discharge and because Lesicko failed to identify any similarly situated male employees or younger employees who were engaged in similar misconduct but received less severe consequences. The court also rejected Lesicko’s claim that she had been constructively discharged noting that “. . . the record before this Court is replete with uncontroverted evidence that it was Lesicko who made the working conditions difficult to bear for her co-workers—creating stress, stirring up turmoil, verbally intimidating them and damaging morale.”

Read the Madison County Record's article about the lawsuit here.

Lesicko v. Conoco Phillips Pipe Line Co., No. 07-cv-0826 (S.D.Ill. Feb. 5, 2009)