Id. At that point, Pisciola became uneasy with the situation
and left the store. Id.
As part of his investigation into the Osco incident, King asked
Berger to provide a written description of the verbal altercation
between Mora and Carter on February 21, 1996. Berger described
the disagreement on the truck, and told King that he did not
believe Carter's remarks were threatening, but that Mora had
"overreacted" to the situation. (King Dep. Ex. 16.) On February
28, 1996, King told Mora that his investigation had revealed that
Carter had not previously threatened Mora. Mora asked that Berger
be brought into the meeting to confirm that Carter had indeed
threatened him. When Berger entered the room, King read Berger's
statement denying that Carter's comments constituted threats, and
Berger confirmed the statement. (King Dep.Ex. 16.)
Later that day, Berger returned to King's office and claimed
that Mora, Berger's subordinate, had called him a "m____r
f____ing liar." (Def.Docs. Tab D Ex. 7.) When King questioned
Mora about the slur, Mora claimed that he was referring to
Carter, his route helper, not Berger, his superior. (King Dep.
117-118; King Dep.Ex. 20.) King suspended Mora for two days for
insubordination. (King Dep .Ex. 20.) Paula Milroe, a Tribune
employee, later told King that she overheard Mora telling other
drivers in the driver room that he had called Berger a "m____r
f____ing liar." (King Dep. 131-132; Def.'s Docs. Tab D Ex. 8.)
Mora claims that Milroe is lying. (Pl.'s Dep. 292.)
E. Mora's Final Termination
On March 5, 1996, King terminated Mora for poor job
performance, poor customer service, mishandling company property,
insubordination, and assaulting a co-worker. (Pl.'s Dep.Ex. 31.)
On June 24, 1996, Mora was acquitted of the criminal charges
filed by Carter. (Pl.'s Resp. to Def.'s 12(M) Statement 41.)
Shortly thereafter, the IDHR dismissed Mora's 1993 discrimination
charge for lack of substantial evidence. (Def.'s Pl.Dep.Ex. 17.)
Undeterred, Mora filed a second charge of discrimination with the
IDHR and the EEOC on August 28, 1996. This charge alleged that
King terminated Mora on March 5, 1996 because of his national
origin, and in retaliation for filing his 1993 discrimination
charge against the Tribune.
Mora also filed a grievance with the Union regarding his
termination. Mora's grievance went to arbitration before
Arbitrator Lamont Stallworth ("Stallworth") on January 15, 1997.
(Pl.'s Dep.Ex. 32.) On April 11, 1997, the IDHR dismissed Mora's
second charge of discrimination for lack of substantial evidence.
(Def.'s Docs. Tab D Ex. 19.) Finally, in a decision dated April
22, 1997, Stallworth upheld Mora's termination. (Pl.'s Dep.Ex.
32.) Mora subsequently filed this suit.
A. Summary Judgment Standards
Summary judgment is proper only when the record shows that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
FED.R.CIV.P. 56(c). When ruling on a motion for summary judgment,
the court must view all evidence in a light most favorable to the
non-moving party, and draw all inferences in the non-movant's
favor. See Wolf v. Buss America, Inc., 77 F.3d 914, 918 (7th
Cir. 1996). A genuine issue for trial exists when "the evidence
is such that a reasonable jury could return a verdict for the
non-moving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, if the
evidence is merely colorable, or is not sufficiently probative,
the court may grant summary judgment. Id. at 249-50, 106 S.Ct.
2505. Weighing evidence, determining credibility, and drawing
reasonable inferences are jury functions, not those of the judge
deciding a motion for summary judgment. Id. at 255, 106 S.Ct.
These standards apply with added rigor in employment
discrimination cases, where issues of intent and credibility
often dominate. Courtney v. Biosound, Inc., 42 F.3d 414, 418
(7th Cir. 1994).
B. Plaintiff's Title VII Claim
Title VII of the Civil Rights Act of 1964 prohibits
discrimination or retaliation against any employee because of the
individual's race or national origin. 42 U.S.C.A. §§
2000e(2)(a)(1), 2000e(3)(a). There are two ways for a plaintiff
to establish a violation of Title VII:(1) by presenting direct
evidence of an illegal motive, see Essex v. United Parcel
Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997); or (2) by
utilizing the McDonnell Douglas burden-shifting analysis "to
raise an inference of an illegal motive." McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d
668 (1973). Because Mora has not produced any direct evidence
that the Tribune violated Title VII, his discrimination and
retaliation claims must satisfy McDonnell Douglas in order to
survive summary judgment. See Essex, 111 F.3d at 1309.
Under McDonnell Douglas, Mora must first establish a prima
facie case of discriminatory discharge. McDonnell Douglas, 411
U.S. at 802, 93 S.Ct. 1817. To establish a prima facie case of
racial discrimination, Mora must demonstrate: (1) that he is
within a protected racial class; (2) that he met the Tribune's
legitimate expectations; (3) that he suffered an adverse
employment action; and (4) that he has evidence from which the
Court can infer that the adverse action sprang from a "legally
forbidden ground," such as more favorable treatment of
similarly-situated, non-minority employees. See Carson v.
Bethlehem Steel Corp., 82 F.3d 157, 158-59 (7th Cir. 1996); see
also Taylor v. Canteen Corp., 69 F.3d 773, 779 (7th Cir. 1995).
If Mora succeeds in making his prima facie case, a rebuttable
presumption of discrimination is created and the burden of
production (though not proof) shifts to the Tribune to articulate
a legitimate, nondiscriminatory explanation for the adverse
employment action. See Hughes v. Brown, 20 F.3d 745, 746 (7th
Cir. 1994). If the Tribune succeeds, the presumption dissolves
and the burden of production shifts back to Mora to demonstrate
that the proffered reason for the discharge is a pretext for
racial discrimination. Essex, 111 F.3d at 1309. Pretext means a
lie, specifically "a phony reason for some action." Cecilio v.
Allstate Ins. Co., 908 F. Supp. 519, 529 (N.D.Ill. 1995), citing
Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). Mora
can establish pretext by showing either: (1) that discriminatory
intent more likely than not motivated the Tribune; or (2) that
the Tribune's proffered explanation is "unworthy of credence"
because the explanation has no basis in fact, is not the real
reason for the adverse action, or is insufficient to justify any
adverse action. Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir.
The Seventh Circuit has held that it is unnecessary to decide
whether the employee has met his burden of establishing a prima
facie case if he cannot show pretext. Holmberg v. Baxter
Healthcare Corp., 901 F.2d 1387, 1391 (7th Cir. 1990). Thus, if
Mora cannot demonstrate that the Tribune's articulated reasons
for his discharge were pretextual, the Court need not consider
Mora's prima facie showing. See Sample v. Aldi, Inc.,
61 F.3d 544, 548 (7th Cir. 1995), quoting United States Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75
L.Ed.2d 403 (1983) ("Where the defendant has done everything that
would be required of him if the plaintiff had properly made out a
prima facie case, whether the plaintiff really did so is no
In examining pretext, the question is whether the employer
honestly believes its proffered reasons for discharge. Sample,
61 F.3d at 549. Title VII does
not vest federal courts with the authority to act as "super
personnel departments," or to second-guess employers' good faith
business judgments. See Mills v. Health Care Serv. Corp.,
171 F.3d 450, 459 (7th Cir. 1999). Instead, it is the "perception of
the decision-maker" that controls the pretext analysis. See
Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 337-38
(7th Cir. 1991), quoting Weihaupt v. American Med. Ass'n,
874 F.2d 419, 428 (7th Cir. 1989). Thus, to prevent summary judgment,
Mora must present evidence that the Tribune is insincere when it
claims to have discharged him for poor job performance, poor
customer service, mishandling company property, assaulting a
co-worker, and insubordination. See Kralman v. Illinois Dept. of
Veterans' Affairs, 23 F.3d 150, 156 (7th Cir. 1994).
Mora is unable to establish that discriminatory intent more
likely than not motivated the Tribune. See Collier, 66 F.3d at
892. Although Mora argues that the Tribune's proffered reasons
for firing him are unreasonable and therefore a mere pretext for
racially discriminatory intent, an employer need only supply "an
honest reason, not necessarily a reasonable one." Flores v.
Preferred Tech. Group, 182 F.3d 512, ___ (7th Cir. 1999).
Arguing about the accuracy of the Tribune's assessment is a
distraction, since the question is not whether the Tribune's
reasons for its decision are correct, but whether the Tribune's
description of its reasons is honest. See Kariotis v. Navistar
Int'l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997), quoting
Gustovich v. AT & T Communications, Inc., 972 F.2d 845, 848 (7th
Cir. 1992). In any event, the Court does not find the Tribune's
decision to discharge Mora — an employee with a long history of
performance deficiencies and property damage, and accused of
instigating a fight while servicing the Tribune's largest
customer — to be unreasonable.
Mora is also unable to prove that the Tribune's proffered
explanation is "unworthy of credence." See Collier, 66 F.3d at
892. In an attempt to establish pretext, Mora claims that the
Tribune treated similarly situated, nonminority employees more
favorably. In a Title VII case, evidence that an employer treated
the plaintiff less favorably than a similarly situated employee
outside the plaintiff's protected class may suggest that the
proffered reason for discharge is a pretext. Golden v. Services
Exch., Inc., No. 97 C 7517, 1999 WL 350665, at *2 (N.D.Ill. May
19, 1999), citing Essex, 111 F.3d at 1311. However, in this
case, Mora is unable to demonstrate that the thirteen employees
whom he identifies as "comparables" are either similarly situated
to him or experienced more favorable treatment by the Tribune.
To be "similarly situated," Mora must show that these
employees: (1) held the same or similar employment positions; (2)
had similar employment histories; and (3) engaged in similar
misconduct giving rise to the employment action. Weiss v.
Coca-Cola Bottling Co., 990 F.2d 333, 338 (7th Cir. 1993). In
addition, Mora must establish that these employees are outside of
his protected class, and that each one experienced more favorable
treatment by the Tribune. See Essex, 111 F.3d at 1311.
Mora's "comparables" fall into two categories: (1) employees
who committed non-violent offenses against the Tribune; and (2)
employees who engaged in physical altercations on company time.
Despite Mora's well-documented history of performance
deficiencies, King admits that the alleged assault on Carter on
February 26, 1996 triggered Mora's termination. (King Dep.
128-29.) The Seventh Circuit recognizes that a physical attack
upon a co-worker is an extremely serious offense that justifies a
higher degree of accountability than non-physical transgressions.
See Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 394-95
(7th Cir. 1999); see also Staples v. City of Milwaukee,
142 F.3d 383, 384 (7th Cir. 1998). Therefore, we do not consider
those comparables who fall into the "non-violent offenses"
to be similarly situated. See Hiatt v. Rockwell Int'l Corp.,
26 F.3d 761, 770 (7th Cir. 1994) (under McDonnell Douglas, in
order to demonstrate pretext through disparate treatment,
employees must engage in acts of "comparable seriousness" to be
similarly situated to plaintiff); see also Weiss, 990 F.2d at
338 (to be similarly situated to plaintiff, the comparable
employee must engage in misconduct similar to that which gave
rise to the adverse employment action). The Court therefore
limits its analysis to those employees who committed physical
Mora alleges that Kevin Killis, Anthony DeLaurentis, and James
Hicks were all involved in physical altercations with co-workers
or other individuals while they worked at the Tribune.*fn6
Nevertheless, the Tribune did not terminate these non-minority
employees. Although Mora admits that his familiarity with the
facts surrounding these incidents was based solely on "general
knowledge" or "the grapevine" prior to discovery, (Pl.'s Dep.
79-80, 82, 84, 89, 91, 93, 97, 98), he argues that the Tribune
did not discharge Killis, DeLaurentis, and Hicks because they
were not Mexican-American, and because none of the three men had
filed a discrimination charge against the Tribune. (Pl.'s Resp.
to Def.'s 12(M) Statement 48, 50.)
Mora's argument fails to account for King's testimony that if
an employee is involved in a physical fight, the Tribune will
investigate the incident and terminate the instigator if there
are other independent witnesses to the incident. (King Dep. 25.)
King discharged Mora only after interviewing the two eyewitnesses
to the alleged assault who identified Mora as the aggressor. Mora
has not produced any evidence to show that King did not believe
the witness accounts that he relied upon when making this
decision. Mora does not dispute the lack of third-party witnesses
to the physical altercations involving Killis, DeLaurentis, and
Hicks. In addition, Mora's attack on Carter occurred on the
premises of one of the Tribune's largest retail customers: none
of Mora's comparables engaged in such a highly visible display of
gross misconduct. See Roberts v. Unidynamics Corp.,
126 F.3d 1088, 1094 (8th Cir. 1997) (employer may conclude
that plaintiff's misconduct was more serious than that of
supposedly similarly situated employees based on fact that
plaintiff's behavior is "highly visible"). Mora has therefore
failed to present any evidence that attacks the Tribune's
veracity or that similarly situated employees were treated more
favorably. See Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343,
349 (7th Cir. 1997).
In sum, Mora has not demonstrated that the Tribune's
legitimate, non-discriminatory reasons for discharging him are a
pretext for racial discrimination. Essex, 111 F.3d at 1309. He
has no direct evidence to support his allegation that
discriminatory intent more likely than not motivated the Tribune.
See Collier, 66 F.3d at 892. In addition, Mora is unable to
prove that the Tribune's proffered reasons for firing him are
"unworthy of credence" because of more favorable treatment of
similarly situated employees outside of Mora's protected class.
See Golden, No. 97 C 7517, 1999 WL 350665, at *2, citing
Essex, 111 F.3d at 1311. For these reasons, the Court finds that
the Tribune's proffered explanations for discharging Mora are not
a pretext for racial discrimination. The Tribune is therefore
entitled to summary judgment with regard to this aspect of Mora's
Because the same pretext analysis applies here as above, Mora's
retaliation claim fails as well. Mora is no more able to prove
that the Tribune's stated reason were a pretext for retaliation
than for discrimination.
Furthermore, Mora is unable to make out a prima facie case of
retaliation under Title VII, under which Mora must show: (1) that
he engaged in statutorily protected activity; (2) that he
suffered an adverse action; and (3) that there is a causal link
between the protected activity and the adverse action. Drake v.
Minnesota Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998);
Essex, 111 F.3d at 1304.
Generally, a plaintiff alleging retaliation under Title VII may
establish a causal link at the prima facie case stage of her
claim by introducing evidence that his discharge took place "on
the heels of protected activity." McClendon v. Indiana Sugars,
Inc., 108 F.3d 789, 796 (7th Cir. 1997). A close temporal
connection between the two events "is generally enough to satisfy
the third [prong] of the prima facie test." Id. at 797.
However, as the temporal distance between the claimant's
protected expression and the employer's adverse action increases,
the likelihood that a causal link exists between the two events
diminishes. McKenzie v. Illinois Dept. of Transp., 92 F.3d 473,
485 (7th Cir. 1996); accord Johnson v. University of
Wisconsin-Eau Claire, 70 F.3d 469, 480 (7th Cir. 1995) ("[T]he
substantial time lapse between the two events is counter-evidence
of any causal connection.").
Mora filed his first discrimination claim with the IDHR and the
EEOC two and half years before the Tribune fired him. Seventh
Circuit case law clearly holds that such a lengthy delay before
the adverse action takes place cannot establish a causal link
between the two events. See Davidson, 133 F.3d at 511 (five
months is too long); Hughes v. Derwinski, 967 F.2d 1168,
1174-75 (7th Cir. 1992) (four months); Juarez v. Ameritech
Mobile Communications, Inc., 957 F.2d 317, 321 (7th Cir. 1992)
(nearly six months).*fn7
However, simply because the time between the employer's adverse
action and the plaintiff's statutorily protected expression is
too lengthy to suggest a causal link between them does not
preclude the employee from making out a prima facie case of
retaliation under Title VII. Davidson, 133 F.3d at 500. Rather,
the employee must then introduce some additional proof that a
causal nexus exists between the protected expression and the
adverse employment action. See Veprinsky v. Fluor Daniel, Inc.,
87 F.3d 881, 891 n. 6 (7th Cir. 1996); see also Davidson v.
Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998).
Mora alleges that once King received notice of the IDHR's
fact-finding hearing in December of 1995, he instructed his
subordinates to start creating a paper trail in order to justify
Mora's discharge. (Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ.J.
2.) Mora introduces no documents, witness statements (other than
his own), affidavits, memoranda, or logical facts in support of
this theory. Wagner v. NutraSweet Co., 95 F.3d 527, 532 (7th
Cir. 1996) (to avoid summary judgment, plaintiff must rely on
concrete evidence to demonstrate genuine issue of material fact).
Against this, the Tribune produces evidence that Maher, Mora's
Division Boss, was consistently critical of Mora's performance
more than six months before King received the IDHR notice. See
infra pp. 629-30. This is insufficient to establish the
necessary causal link between his protected expression and the
Tribune's adverse employment action. As the Seventh Circuit has
recognized, every employee with performance problems "would file
a [discrimination] charge just to get a little unemployment
insurance" if such a charge could insulate them from the
consequences of their deficient performance. Bermudez v. TRC
Holdings Inc., 138 F.3d 1176, 1179 (7th Cir. 1998); Clay v.
Interstate Nat. Corp., 900 F. Supp. 981, 993 (N.D.Ill. 1995)
(finding that probationary employee with notice of impending
evaluation could not "straightjacket" employer by filing a
discrimination charge.) Because Mora cannot establish a prima
facie case or demonstrate pretext, the Tribune is entitled to
summary judgment with regard to Mora's retaliation claim.
After an altercation with a coworker, Riccardo Mora was
terminated by the Tribune. Mora argues that the Tribune's
heavy-handed response was motivated by his race and his protected
activity. We disagree. The Tribune proffered legitimate,
non-discriminatory reasons for discharging Mora, and Mora failed
to introduce any evidence demonstrating that the Tribune's
explanation was a pretext for racial discrimination or
retaliation. In addition, Mora is unable to establish a prima
facie case of retaliation by the Tribune. Perhaps if the Tribune
valued Mora as an employee, it would have attempted to diffuse
the volatile Carter situation when it first arose — but the law
did not require the Tribune to do so. For these reasons, the
Court grants the Tribune's motion for summary judgment (9-1) with
respect to Mora's claims of racial discrimination and retaliation
under Title VII. The Clerk of the Court is directed to enter
judgment, pursuant to FED.R.CIV.P. 58, in favor of the Tribune
and against Mora.