                                         2016 IL App (1st) 151762
                                              No. 1-15-1762
                                         Opinion filed May 3, 2016

                                                                                       Second Division


                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             FIRST DISTRICT


                                                           )
                                                                  Appeal from the Circuit Court
     ANDREW KRECZKO,                                       )
                                                                  of Cook County.
                                                           )
            Platiniff-Appellant,                           )
                                                           )
                                                                  No. 13 L 50566
     v.                                                    )
                                                           )
     TRIANGLE PACKAGE MACHINERY CO.,                       )
                                                                  The Honorable
                                                           )
                                                                  James M. McGing,
                                                           )
                                                                  Judge, presiding.
            Defendant-Appellee.                            )



            JUSTICE HYMAN delivered the judgment of the court, with opinion.
            Justices Neville and Simon concurred in the judgment and opinion.

                                                   OPINION

¶1          After receiving several customer complaints about his job performance and

     unprofessional behavior, Triangle Package Machinery Company fired Andrew Kreczko. Four

     months later, Triangle hired a younger, Hispanic employee to fill Kreczko's position. Kreczko,

     51, sued Triangle alleging age, disability, and racial discrimination. The trial court dismissed the

     racial discrimination claim, and later granted Triangle's motion for summary judgment on the

     remaining claims, finding (i) Kreczko failed to establish a prima facie case of unlawful

     discrimination because it was shown that Kreczko fell short in meeting his legitimate
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     performance expectations, and (ii) Triangle's reason for firing Kreczko was not a pretext for

     unlawful discrimination.

¶2          On appeal, Kreczko argues that genuine issues of material fact exist as to whether

     Triangle fired him due to his age and disability in violation of the Illinois Human Rights Act

     (Act) (775 ILCS 5/2-101 et seq. (West 2014)). Kreczko also contends the trial court should have

     stricken an affidavit of Triangle's president because it was based on his "knowledge, information,

     and belief" rather than knowledge alone.

¶3          We affirm. The record shows Triangle terminated Kreczko for unsatisfactory job

     performance and this reason was not pretextual. Further, the trial court correctly let the entire

     affidavit stand as being made on personal knowledge except for a single paragraph, which was

     stricken.

¶4                                          BACKGROUND

¶5          Triangle designs, manufactures, and services food packaging equipment. Triangle hired

     Kreczko as a service technician in 2002. In June 2008, Kreczko went to Advance Foods, a

     Triangle customer, for the purpose of upgrading one of its machines. An email exchange

     between members of Triangle management explains that Kreczko left the service call without

     completing several essential tasks, including checking the machine's controls and running the

     machine to ensure the upgrade worked. Another Triangle employee was sent to Advance Foods

     and discovered the machine was not working properly. The email states, "This looks horrible to

     the customer and Andy should have finished the upgrade ***. This is inexcusable and should

     NEVER happen again in the future. I know this was Andy's first Pentium upgrade and I don't

     mean to dog Andy, but this is common sense. The machine has to be functional to the best of his

     knowledge before he leaves."



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¶6             Six months later, another Triangle customer, ConAgra, complained to Triangle that

       Kreczko lacked adequate knowledge to perform a service call at its facility and the machine he

       was to repair failed after he left.

¶7             The following month, January 2009, Kreczko met with Triangle management to discuss

       his performance. A representative from the International Association of Machinists and

       Aerospace Workers Union and the chair of Triangle's union committee also were present. A

       memo summarizing the meeting noted that Triangle would be eliminating Kreczko's service

       activity on one of its machines and retraining him on two other machines. Kreczko did not return

       to making service calls until 2010. This meeting was memorialized in a memo on which Kreczko

       was copied.

¶8             Despite the retraining, Kreczko continued to exhibit poor working knowledge of

       Triangle's machines. In March 2011, after seeing Kreczko unsatisfactorily work on a machine,

       Triangle's director of operations told him he needed to improve.

¶9             In December 2010, Triangle's president sent a memo to all company employees advising

       them that they would be subject to discipline, including termination, should they disparage

       Triangle to customers. Six months later, Advance Pierre, a Triangle customer, complained that

       Kreczko had inadequate knowledge about its equipment and had described Triangle as "screwed

       up." Advance Pierre also asserted that Kreczko spent too much time in a break room, which he

       blamed on cold air near the machines.

¶ 10           On June 16, 2011, Triangle fired Kreczko. His termination memo listed the customer

       complaints regarding his performance and stated:

                       "It is clear that your behavior in front of Triangle customers continues to be

                   inappropriate and unprofessional. Your working knowledge of the equipment, despite



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                   efforts to retrain you and select jobs within your skill set, is not sufficient to qualify

                   you as a Triangle Service Technician.

                      Due to the continuing lack of improvement in your knowledge of our machinery,

                   the number of negative reports you have received from customers and your inability

                   to represent the company in an appropriate manner, I have decide[d] to terminate you

                   immediately."

¶ 11          The day he was fired, Kreczko filed a grievance with his union, claiming due process was

       not observed. The union reviewed the claim, and concluded it lacked merit. Kreczko then filed a

       charge with the Illinois Department of Human Rights (IDHR) alleging age and disability

       discrimination under the Act. 775 ILCS 5/2-101 et seq. (West 2014). The IDHR dismissed the

       charge for lack of substantial evidence to support the allegations of discrimination.

¶ 12          Kreczko then sued Triangle in circuit court, alleging age discrimination (count I),

       handicap/disability discrimination (count II), and racial discrimination (count III). In count I,

       Kreczko alleged that as a 51-year-old he was in a protected class, that he was performing his

       work as a service technician in an exemplary fashion, which met Triangle's legitimate

       expectations, and that he was replaced by a younger employee. In count II, Kreczko asserted he

       had a heart attack in 2001 after a boating accident. He had a stent implanted and takes daily

       medication for his heart. Kreczko alleged Triangle knew of his preexisting heart condition when

       hiring him and knew that he had difficulty working in certain conditions, such as extreme heat,

       but criticized his work performance in those conditions. Kreczko further alleged he had been

       assigned an out-of-state service call on the Friday before a Saturday doctor's appointment and

       that a Triangle vice-president directed him to cancel the appointment. Instead, Kreczko went on

       the service call the following Monday and contends that shortly after this incident, he was fired.


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       Count III alleged discrimination based on race because an Hispanic employee replaced him. In

       all three counts, Kreczko asserted that a contention by Triangle that he was fired for a reason

       other than age, disability, or race constituted a mere pretext for unlawful discrimination.

¶ 13          Triangle moved to dismiss count III, alleging racial discrimination, and after a hearing,

       the trial court granted the motion with prejudice. Triangle then moved for summary judgment on

       the two remaining counts, arguing that Kreczko failed to show he was fired based on his age or

       purported disability. The motion attached an affidavit from the Triangle president, Bryan

       Muskat, stating, in part, that (i) Kreczko was fired for poor performance, (ii) before being fired,

       Kreczko hadn't complained about discrimination of any kind, and (iii) Kreczko had several

       performance issues and complaints from customers. Muskat further stated that of the 18

       employees in Kreczko's department when he was fired, 16 were over 40 years old, that only 23

       out of Triangle's 156 employees were under the age of 40, and that everyone involved in the

       termination decision was as old or older than Kreczko. He also stated that although Kreczko told

       Triangle about his accident, he never provided information from a physician or asked for an

       accommodation for a heart condition and was never disciplined for rescheduling an appointment

       with a customer due to a doctor's appointment.

¶ 14          Kreczko moved to strike or dismiss Triangle's motion for summary judgment, contending

       Muskat's affidavit did not comply with Illinois Supreme Court Rule 191(a), (b) (eff. Jan, 4, 2013)

       or section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2014)), in that its

       statements were based on "personal knowledge, information and belief" (emphasis added) rather

       than simply on personal knowledge.

¶ 15          After a hearing, the trial court denied Kreczko's motion to strike or dismiss. The trial

       court found Muskat's affidavit satisfactory, and let the entire affidavit stand as made on personal



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       knowledge, except for one paragraph which was stricken. The court also granted Triangle's

       motion for summary judgment as to counts I and II and dismissed the case. The court found

       Kreczko had not established a prima facie case of age or handicap discrimination because he

       failed to meet his employer's legitimate performance expectations. The court pointed to four

       instances in which Kreczko's performance fell below expectations. Namely, the trial court noted

       that while upgrading a machine at Advanced Foods, Kreczko failed to perform essential tasks,

       such as checking the machine's performance to determine if the upgrade worked. Kreczko also

       received a negative review from Con Agra for not having sufficient knowledge of the machinery.

       Kreczko was taken off of service calls and given additional training, but Triangle's director of

       operations observed him continuing to exhibit inadequate knowledge about Triangle's equipment

       and machines. Lastly, while on a service call at Advanced Pierre, Kreczko again displayed

       inadequate knowledge about the machinery and disparaged Triangle in violation of a company

       directive. The court held that even if Kreczko could establish a prima facie case of age or

       disability discrimination, he failed to establish the reasons Triangle gave for terminating him

       were merely pretextual.

¶ 16                                             ANALYSIS

¶ 17                                  Sufficiency of Muskat's Affidavit

¶ 18          Before granting Triangle summary judgment, the trial court denied Kreczko's motion to

       strike or dismiss the summary judgment motion based on purported defects in Muskat's affidavit.

       Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013) covers the sufficiency of an affidavit. Rule

       191(a) provides that an affidavit must be (i) made on the affiant's personal knowledge, (ii) not

       consist of conclusions but facts admissible in evidence, and (iii) affirmatively show that the

       affiant could testify competently about those facts. Id. Rule 191 is satisfied where, viewed as a



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       whole, the affidavit relies on personal knowledge and there is a reasonable inference the affiant

       could competently testify to its contents at trial. Burks Drywall, Inc. v. Washington Bank & Trust

       Co., 110 Ill. App. 3d 569, 576 (1982). Courts accept an affidavit as true if it is not contradicted

       by counteraffidavit or other evidentiary materials. Lindahl v. City of Des Plaines, 210 Ill. App.

       3d 281, 299 (1991). The decision to strike a Rule 191 affidavit falls within the trial court's sound

       discretion. American Service Insurance Co. v. China Ocean Shipping Co. (Americas), Inc., 402

       Ill. App. 3d 513, 524 (2010). Generally, the trial court should strike just the improper portions of

       an affidavit. Roe v. Jewish Children's Bureau of Chicago, 339 Ill. App. 3d 119, 128 (2003).

¶ 19          Kreczko contends the trial court erred in denying his motion to strike Triangle's summary

       judgment motion because Muskat's affidavit did not state that it was based on his personal

       knowledge but instead relies on "his personal knowledge, information and belief." (Muskat also

       gave a supplemental affidavit, which did not contain the "information and belief" language.)

       Kreczko contends Supreme Court Rule 191 is strictly construed and inclusion of the words

       "information and belief" renders the entire affidavit defective. We disagree.

¶ 20          Aside from the reference to "information and belief," Muskat's affidavit complies with

       Supreme Court Rule 191. As the trial court noted, the statements in the affidavit are facts

       reasonably within Muskat's personal knowledge as Triangle's president, with the exception of the

       paragraph which avers that Kreczko never complained about discrimination before his firing or

       during his post-termination grievance with the union. The affidavit does not consist of

       conclusions, but sets out facts admissible in evidence, including the dates of Kreczko's

       employment, the customer complaints about his performance, the ages of Triangle's employees,

       and Triangle's knowledge about Kreczko's heart condition. Further, the affidavit recited that if

       sworn as a witness, the affiant could testify competently about the statements.



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¶ 21           An affidavit based solely on information and belief, which does not indicate that the

       affiant could competently testify to the facts, would bypass the requirements of Rule 191.

       Hedrick v. Goodwin Brothers, Inc., 26 Ill. App. 3d 327, 329 (1975). But, an affidavit expressly

       declaring that the affiant has personal knowledge of its facts and that if called as a witness could

       competently testify to those facts satisfies Rule 191, even with the inclusion of the extra phrase

       "information and belief." See Downers Grove Associates v. Red Robin International, Inc., 151

       Ill. App. 3d 310, 316-17 (1986) (affidavit not deficient simply because includes words "on

       information and belief"). The affidavit fulfills the requirements of Rule 191 and the trial court

       did not err in rejecting Kreczko's argument that the Muskat's affidavit was defective.

¶ 22                                 Order Granting Summary Judgment

¶ 23           Kreczko next contends the trial court erred in granting Triangle's motion for summary

       judgment as genuine issues of material fact exist as to whether Triangle fired him over age and

       disability.

¶ 24           Summary judgment is appropriate where the pleadings, admissions, depositions, and

       affidavits demonstrate no genuine issues of material fact and, as a matter of law, the moving

       party is entitled to judgment. 735 ILCS 5/2-1005(c) (West 2014); Richardson v. Bond Drug Co.

       of Illinois, 387 Ill. App. 3d 881, 884 (2009). During the summary judgment phase, a plaintiff

       does not need to prove his or her entire case but must present some evidentiary facts to support

       the elements of the cause of action. Wallace v. Alexian Brothers Medical Center, 389 Ill. App. 3d

       1081, 1085 (2009). The court construes the evidence in favor of the nonmoving party.

       Richardson, 387 Ill. App. 3d at 884. We review the grant of summary judgment de novo. Id.

¶ 25                                      Age Discrimination Claim




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¶ 26          In reviewing employment discrimination actions brought under the Act, Illinois courts

       apply a three-part analysis adopted in Zaderaka v. Illinois Human Rights Comm'n, 131 Ill. 2d

       172 (1989): (i) the plaintiff must establish a prima facie case of unlawful discrimination by a

       preponderance of the evidence (Van Campen v. International Business Machines, Corp., 326 Ill.

       App. 3d 963, 971 (2001)); (ii) to rebut the presumption of unlawful discrimination, the employer

       must articulate a legitimate, nondiscriminatory reason for its employment decision (id.); and (iii)

       if the employer establishes a legitimate reason, the plaintiff must prove that the reason was

       merely a pretext for unlawful discrimination. Id.

¶ 27          To establish a prima facie case of age discrimination by a preponderance of evidence a

       plaintiff must show: (1) he or she is a member of a protected class; (2) he or she was performing

       satisfactorily; (3) he or she was discharged despite the adequacy of her work; and (4) a similarly

       situated employee who was not a member of the protected group was not discharged. Marinelli

       v. Human Rights Comm'n, 262 Ill. App. 3d 247, 253 (1994); Folbert v. Department of Human

       Rights, 303 Ill. App. 3d 13, 25 (1999).

¶ 28          Kreczko was 51 years old when Triangle fired him and Triangle does not dispute that he

       was a member of a protected class based on his age. But, Triangle asserts that Kreczko cannot

       satisfy either the second or fourth prong to establish a prima facie case of age discrimination,

       because the record shows he was not satisfactorily performing his job or that a similarly situated

       younger employee was not subject to the same adverse action. We agree.

¶ 29          As to Kreczko's job performance, Triangle documented at least three instances when

       Kreczko failed to meet Triangle's standards of performance and was the subject of a customer

       complaint. As noted, while upgrading a machine at Advanced Foods, Kreczko left without

       performing several essential tasks, including checking whether the upgrade worked. As a result,



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       another Triangle employee had to go to Advanced Foods to finish the service call. Con Agra,

       another Triangle customer, complained that Kreczko did not have sufficient knowledge of the

       machinery. Lastly, while on a service call at Advanced Pierre, Kreczko again displayed

       inadequate knowledge about the machinery and acted unprofessionally by spending too much

       time in the break room and disparaging Triangle in violation of a company directive.

¶ 30          Triangle memorialized these incidents in writing through email messages and a memo

       and met with Kreczko on at least two occasions to advise him that he needed to improve his

       performance. Kreczko contends, however, that he did not receive documentation about the

       customer complaints until the date of his deposition and thus, was not given the opportunity to

       dispute them. Kreczko asserts that his affidavit, in which he states he received no complaints

       from customers and performed his job satisfactorily, creates a question of material fact and thus,

       the trial court should have denied the motion for summary judgment.

¶ 31          Affidavits submitted in opposition to motions for summary judgment must consist of

       facts admissible in evidence rather than conclusions, and conclusory matters may not be

       considered in opposition to motions for summary judgment. O'Rourke v. Oehler, 187 Ill. App. 3d

       572, 585 (1989). Summary judgment determines whether a triable issue of fact exists. Haberer v.

       Village of Sauget, 158 Ill. App. 3d 313, 316 (1987). A plaintiff cannot create a triable issue of

       fact by the conclusory affidavit. Northrop v. Lopatka, 242 Ill. App. 3d 1, 9 (1993). Kreczko's

       affidavit in support of his response to Triangle's motion for summary judgment, stating that he

       did a good job and did not know the customer had complained about him, does not create issues

       of material fact regarding Kreczko's performance.

¶ 32          Moreover, while Kreczko may not have physically received copies of the emails, he was

       at the January 21, 2009 meeting with management to discuss ConAgra's complaint about his



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       performance on a service call. He also was copied on a memo memorializing the meeting and

       referencing prior customer complaints. Further, the memo advising employees that disparaging

       the company could result in termination was sent to all Triangle employees. Thus, no basis exists

       for finding Kreczko unaware of customer complaints or of Triangle's unhappiness with his

       performance.

¶ 33           Kreczko also has failed to show that a similarly situated younger employee was not

       discharged. Kreczko does not identify a younger employee who was similarly situated but

       permitted to retain his or her job. But, Kreczko asserts that he can establish this element

       indirectly based on Triangle's decision to replace him with a younger employee. While it is true

       that Triangle eventually hired a younger man to replace Kreczko, that occurred four months after

       his firing. Under the circumstances, this is not sufficiently close in time to draw an inference of

       age discrimination.

¶ 34           Thus, because Kreczko did not show that he was performing satisfactorily or that a

       similarly situated younger employee was not discharged, he failed to establish a prima facie case

       of age discrimination, and the trial court did not err in granting Triangle summary judgment on

       this allegation.

¶ 35                                   Disability Discrimination Claim

¶ 36           As with age discrimination claims, a plaintiff alleging disability discrimination must first

       establish a prima facie case of unlawful discrimination by a preponderance of the evidence. Van

       Campen, 326 Ill. App. 3d 970-71. If the plaintiff satisfies this step, the employer must articulate

       a legitimate, nondiscriminatory reason for its employment decision to rebut the presumption of

       unlawful discrimination. Id. at 971. If the employer establishes a legitimate reason, the plaintiff

       must prove that the reason was merely a pretext for unlawful discrimination. Id. Assuming



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       Kreczko had a disability, as noted, Triangle established a legitimate nondiscriminatory reason for

       terminating him that was not merely pretextual.

¶ 37          To establish a prima facie case of disability discrimination under the IHRA, a plaintiff is

       required to prove: (i) she was disabled within the definition of the IHRA; (ii) her disability is

       unrelated to her ability to perform the functions of the job she was hired to perform; and (iii) an

       adverse job action was taken against her related to her disability. Id.

¶ 38          Under the Act, “disability” is a "determinable physical or mental characteristic of a

       person *** or the perception of such characteristic by the person complained against, which may

       result from disease, injury, congenital condition of birth or functional disorder.” 775 ILCS 5/1-

       103(I) (West 2014). This statutory definition has been interpreted by the Joint Rules of the

       Department and the Human Rights Commission as “not confined to only those physical and

       mental conditions that are grave or extreme in nature” but as excluding: (i) conditions that are

       transitory and insubstantial; and (ii) conditions that are not significantly debilitating or

       disfiguring. 56 Ill. Adm. Code 2500.20(b) (2009); see Anderson v. Modern Metal Products, 305

       Ill. App. 3d 91, 98 (1999).

¶ 39          Kreczko contends he was involved in a boating accident in 2001 that caused a heart

       attack. He was hospitalized and had a stent inserted and ever since has been taking medication

       for his heart. Despite his heart condition, he maintains that he was asked to work in extremely

       hot conditions that caused him to sweat profusely and was fired shortly after postponing a

       service call that interfered with a doctor's appointment.

¶ 40          Triangle responds that Kreczko never provided verifiable medical documents regarding a

       heart condition. Triangle acknowledges Kreczko mentioned during his initial interview in 2002

       that he had been injured in an accident, but asserts that Kreczko never: (i) claimed his condition



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       was a handicap or disability, (ii) stated that he was restricted from doing his job due to a heart

       condition; or (iii) asked for accommodations.

¶ 41          Assuming Kreczko can make out a prima facie case of disability discrimination and

       satisfy the first prong of the test, Triangle has set forth a legitimate, nondiscriminatory reason for

       Kreczko's firing, and thus, he is unable to show that the proffered reason was only a pretext for

       unlawful discrimination.

¶ 42          Triangle's reasons for firing Kreczko were legitimately based on his poor work

       performance. As noted, several customers complained about him and his inadequate knowledge

       of Triangle's machines, even after additional training. Triangle informed Kreczko of the issues

       and gave him several opportunities to address them before he was fired. Triangle also advised

       Kreczko not to disparage the company and doing so could result in discipline, including

       termination. Kreczko violated this directive when he told Advance Pierre that Triangle was

       "screwed up."

¶ 43          Thus, we affirm the trial court's order granting summary judgment on both his age and

       disability discrimination claims.

¶ 44          Affirmed.




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