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CORNELIUS v. HONDO INC.

January 27, 1994

KENNETH CORNELIUS, Plaintiff,
v.
HONDO INC., d/b/a/ COCA-COLA BOTTLING CORP., Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Kenneth Cornelius brings this single count complaint alleging that defendant Hondo Inc. fired him on the basis of his race, in violation of Section 706(f)(6) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ยง 2000e-5(f)(1) et seq., and the Civil Rights Act of 1991. Presently before the court are Hondo's motion for summary judgment and motions to strike. For the reasons set forth below, Hondo's motions are granted.

 I. Background

 Plaintiff Kenneth Cornelius, a black male, was employed by defendant Hondo Inc., d/b/a/ Coca-Cola Bottling Company of Chicago, from July 18, 1986 until his termination on January 9, 1991. During Cornelius' tenure at Hondo, the company maintained an Attendance Control Program ("the Program"). Under the Program, an employee receives points, or fractions thereof, for tardiness or unexcused absences; accumulation of thirteen or more points in a twelve month period may result in termination. As of January 7, 1991, Cornelius had accumulated twelve and one half points under Program guidelines. On January 8, 1991, Cornelius slipped and fell while on his way to work, aggravating an existing back condition and injuring his ankle. He did not report to work, and failed to phone in his absence, thereby accumulating two more points under the Program.

 The following morning, Cornelius phoned the warehouse manager, Mark Scott, to notify the company of his injuries, and to request that his vacation time be applied retroactively to cover his absence on January 8. Scott, who administered the Program, denied the request and instead terminated Cornelius for accumulating thirteen or more points under the Program guidelines. Cornelius asserts that white employees had been allowed to apply retroactive leave or vacation time to avoid application of the Program, and thus concludes that the actual reason for his termination was his race.

 II. Summary Judgment Standard

 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991).

 III. Discussion

 Cornelius claims that he was discharged from Hondo because of his race, in violation of Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), the Supreme Court set forth the appropriate analytical framework for private, non-class Title VII cases. Under McDonnell Douglas, the plaintiff must first establish a prima facie case of racial discrimination. Although McDonnell Douglas was a discriminatory hiring case, the prima facie case stated therein has been extrapolated to discriminatory discharge situations. In Hong v. Children's Memorial Hosp., 993 F.2d 1257 (7th Cir. 1993), the Seventh Circuit articulated the plaintiff's prima facie case as follows: "the plaintiff is required to show that (1) she is a member of a protected class, (2) she was doing her work well enough to meet her employer's legitimate expectations, (3) despite her performance, she was discharged, and (4) her employer sought a replacement for her." Id. at 1261 (citation omitted). *fn1" The burden then shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's [discharge]." McDonnell Douglas, 411 U.S. at 802. *fn2" Even if the defendant is successful in this endeavor, the inquiry continues. The plaintiff is entitled to rebut the defendant's proffered explanation by proving that that "legitimate" reason for discharge was merely a pretext for discrimination. Id. at 804. At this stage, the plaintiff must persuade the court that the defendant's explanation is "unworthy of credence" or that "a discriminatory reason more likely motivated" the defendant. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).

 Hondo asserts that Cornelius can not make out a prima facie case because he did not meet Hondo's legitimate expectations regarding his attendance, and because he was not treated differently than members of the unprotected class. It is undisputed that Cornelius exceeded the permissible number of points under the Program. However, Cornelius claims that non-black employees in the same situation were allowed to apply retroactive leave or vacation time to excuse their excess absences, and that he has therefore made out a prima facie case under Title VII. In support, he offers two affidavits, which Hondo has moved to strike. Because the admissibility of the affidavits is obviously crucial to Cornelius' case, we shall first consider these motions to strike.

 Hondo first challenges Cornelius' own affidavit. In it, Cornelius relates a telephone call he claims to have had with John Rotundo, a white Hondo employee, in which Rotundo supposedly stated that he believed that there was favoritism toward whites in the application of the Program at Hondo. However, it is readily apparent that the affidavit is replete with hearsay, since Rotundo's statements are offered to prove the truth of the matters asserted therein. Thus, under Fed. R. Evid. 801(c) and 802, the affidavit is inadmissible.

 In response to Hondo's motion, Cornelius throws out a barrage of evidentiary rules which he claims will save his affidavit. He first counters that Rotundo's statements are non-hearsay under Fed. R. Evid. 801(d)(2)(D). This provision excludes from the definition of hearsay admissions by the agent or servant of a party opponent concerning matters within the scope of that agency or employment. Although Rotundo is an employee of Hondo, it is clear that he was in no way involved with the hiring or firing at Hondo, or with enforcement of the Program; rather, he is a forklift driver. We therefore find this situation indistinguishable from that presented in Cebula v. General Elec. Co., 614 F. Supp. 260 (N.D. Ill. 1985), where we concluded:

 
The "party opponent" here is GE. The statements [recounted in the plaintiff's affidavit] were made by lower-level GE employees. No evidence suggests that any of these co-workers was involved in the decision to fire Cebula or was speaking as an "agent or servant [of GE] concerning a matter with the scope of his agency or employment . . . ." Fed. R. Evid. 801(d)(2)(D). Thus, ...

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