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MORA v. CHICAGO TRIBUNE

August 3, 1999

RICCARDO MORA, PLAINTIFF,
v.
CHICAGO TRIBUNE, DEFENDANT.



The opinion of the court was delivered by: Castillo, District Judge.

  MEMORANDUM OPINION AND ORDER

Riccardo Mora sued the Chicago Tribune (the "Tribune") for racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Mora alleges that the Tribune terminated him because he is Mexican-American, and because he filed a charge of discrimination with both the Illinois Department of Human Rights ("IDHR") and the Equal Employment Opportunity Commission ("EEOC"). Currently before the Court is the Tribune's motion for summary judgment.*fn1 For the reasons stated below, the Court grants the Tribune's motion.

RELEVANT FACTS

The Tribune hired Mora as a route driver on August 6, 1986 to deliver newspapers to vendor boxes throughout Chicago and to retail customer accounts such as Walgreens and Osco stores. Route drivers are responsible for delivering new papers, gathering old papers, and collecting money from the Tribune's retail customer accounts. Drivers are assigned a labor service helper to assist with newspaper deliveries.

The Tribune expects its route drivers to complete their initial deliveries by approximately 7:00 a.m. (Pl.'s Dep. 207; King Dep. 219-21.) Because sold-out vendor boxes represent potential lost sales to the Tribune, route drivers return to low or sold-out vendor boxes once they complete their initial delivery schedule. (Pl.'s Dep. 186.) The Tribune encourages each route driver to complete this cycle within his or her eight-hour shift. (Pl.'s Dep. 186.)

A. Mora's Initial Termination

On March 5, 1993, Kevin King, the Tribune's Distribution Manager, discharged Mora for an uncorrected route balance shortage, claiming that Mora wrongfully withheld cash receipts. (King Dep. 28).*fn2 According to King, if a driver has a route balance shortage on his collections, the Tribune generally gives the driver a short period of time in which to correct the balance and, if he or she fails to do so, terminates the driver until the route balance shortage is paid, at which time the driver is typically reinstated. (King Dep. 169, 186-87.) Prior to his discharge, the Tribune warned Mora that "[f]ailure to abide by [certain] procedures [involving the collection and use of the Tribune's monies] could result in disciplinary action including termination." (Pl.'s Dep. Ex. 11.) Following his discharge, Mora began to pay back the route balance shortage. (King Dep. 58-60.)

On July 9, 1993, Mora filed a charge of discrimination with the IDHR and the EEOC alleging that the Tribune discharged him on March 5, 1993 because of his Mexican-American ancestry. (Pl.'s Dep. Vol. III at 284; King Dep. Ex. 4.) The Tribune received notice of this charge in 1993. (Pl.'s Resp. to Def.'s 12(M) Statement 11.)

Mora then grieved his termination pursuant to the collective bargaining agreement between the Tribune and the Teamsters Union Local 706 ("Union"). In a decision dated May 6, 1994, Labor Arbitrator Edward P. Archer determined that the Tribune had neither just cause nor clear and convincing evidence to believe that Mora was withholding cash receipts with the intent of stealing from the Tribune. (King Dep. Ex. 6.) Archer reinstated Mora, who returned to work at the Tribune on May 22, 1994 as a vacation relief driver.

B. Mora's Performance Deficiencies

Approximately one year later, on or about May 15, 1995, Mora successfully bid to be the driver on Route 1511. (Pl.'s Dep. 175-77.) From the onset, Mora's new division boss, Jennifer Maher, was critical of Mora's performance. On June 26, 1995, Maher sent Mora a memo in which she claimed that 21% of the vendor boxes along Route 1511 were sold-out that day. (Pl.'s Dep. Ex. 20.) In addition, Maher claimed that Mora did not leave his route book in the "pigeonhole" at the end of his shift,*fn3 (Pl.'s Dep. Ex. 20); a charge that Mora denied.

Two weeks later, Maher sent Mora a second memo in which she claimed that 37% of the vendor boxes along Route 1511 had been sold-out on July 10, 1995. (Pl.'s Dep. Ex. 21.) Maher also reprimanded Mora for again failing to leave his route book in the pigeonhole, noting that this was his second notice of this policy violation. (Pl.'s Dep. Ex. 21.) Mora again insisted that he left his route book in the pigeonhole and alleges that Tribune management never informed him of what it considers to be an "acceptable" level of sold-out vendor boxes. (Pl.'s Dep. 187.)

On December 4, 1995, King received notice that he was to appear at an IDHR fact-finding conference on February 1, 1996, regarding Mora's 1993 discrimination charge. (King Dep. 41.) King testified that he knew of Mora's charge of discrimination against the Tribune prior to receiving this notice. (King Dep. 41.)

At about the same time, Maher was growing increasingly dissatisfied with Mora and decided to contact her supervisors regarding Mora's performance. On December 13, 1995, Maher sent two memoranda to King. In the first memo, Maher notified King that Mora had requested two hours of overtime on Monday, December 11, 1995, despite her belief that he "[h]ad more than adequate time to return . . . before the end of his shift." (Pl.'s Dep. Ex. 24.) According to King, it is "somewhat unheard of" to receive two hours of overtime on a Monday route. (King Dep. 76-77.) In the second memo, Maher informed King that Mora had failed to balance his route book that day. (Pl.'s Dep. Ex. 22.) In addition, Maher noted that Mora had neglected to leave his route book in the pigeonhole, and explained that this was Mora's third violation. (Pl.'s Dep. Ex. 22.) In sending this correspondence, Maher included copies of the earlier memos that she had written to Mora. (Pl.'s Dep. Ex. 22.)

On December 18, 1995, the Tribune transferred Mora and assigned Keith Fitzsimmons to be the Route 1511 route driver in accordance with the collective bargaining agreement between the Tribune and the Union.*fn4 The Tribune assigned Mora to a day-off position that included Fitzsimmons's days off on Route 1511. On January 5, 1996, the Tribune received two different customer service complaints regarding Mora, claiming that Mora had not delivered their newspapers. (Pl.'s Dep. Ex. 25.) One establishment had not received its papers by 7:50 a.m.; another business had not received its papers by 8:49 a.m. (Pl.'s Dep. Ex. 25.) Mora insists that delivery took longer than usual on that date because he had to learn a new route. (Pl.'s Resp. to Def.'s 12(M) Statement 19.) Mora explained that the Tribune had significantly altered Route 1511 since he was permanently assigned there, and that he ran the new Route 1511 for the first time on January 5, 1996. (Pl.'s Resp. to Def.'s 12(M) Statement 19.) In addition, Mora alleges that the weather was bad, and that the previous driver had not taken money out of the vendor boxes. (Pl.'s Resp. to Def.'s 12(M) Statement 19.) Nevertheless, on January 4, 1996, driver Gerald Walker completed the deliveries along the new Route 1511 by 7:30 a.m., even though this was his first day delivering that route. (Pl.'s Dep. 215-16.)

In response to customer complaints, King removed Mora from Route 1511 on January 5, 1996. Mora ran Route 1302 for two weeks as a vacation relief driver. The Tribune then offered to place him on Route 1205, a less demanding route by its estimation. According to the Tribune, Mora refused this offer and requested that the Tribune place him on Route 1310 in accordance with his seniority. On January 19, 1996, the Tribune met with Mora and his union representatives to discuss Mora's route assignment. The Union defended Mora's right to work Route 1310 pursuant to his level of seniority. Reluctantly, the Tribune agreed to place Mora on Route 1310, but made it clear that if Mora's performance problems continued, he would be subject to disciplinary action. (King Dep. Ex. 13.)

Despite this warning, Mora's performance problems persisted. Between January 22, 1996 and February 11, 1996, Mora requested overtime on Route 1310 ten out of the fifteen times that he drove the route. (Pl.'s Dep. Ex. 28.) The day-off driver, who drove the route nine times during the same period, never requested overtime. Id. To the Tribune's knowledge, no route driver had requested overtime on Route 1310 for ten years prior to Mora driving the route. (King Dep. 98.)

Mora admits that he requested the overtime, but states that the Tribune added twenty-nine stops in two additional suburbs around the time that he was assigned to Route 1310. (Pl.'s Dep. Vol. III at 308-09.) King removed Mora from Route 1310 on February 14, 1996. On February 16, 1996, King met with Mora and his union representatives and explained that Mora had taken "excessive time to run the route." (King Dep. Ex. 15.) Mora counters that after he was taken off Route 1310, Danny Keenan was paid overtime as the Route 1310 driver. (Pl.'s Dep. Vol. III at 309-10.) Nevertheless, the Tribune offered to assign Mora to a relay-driver position,*fn5 which is less demanding than the route-driver position. (King Dep. 89.) According to the Tribune, Mora refused to accept a position as a relay driver, and began work on Route 1405 as a vacation relief driver. (Pl.'s Dep. 27,233.) Mora does not recall the Tribune offering him the relay driver position. (Pl.'s Resp. to Def.'s 12(M) Statement 22-23.)

On February 24 and 25, 1996, the Tribune received two complaints from Carol Tarpey of Tarpey's Pharmacy concerning Mora's slow delivery and bad attitude. (Def.'s Docs. Tab D Ex. 1.) Tarpey lodged an additional complaint about Mora's delivery service on Wednesday, February 28, 1996, complaining that she had not received her newspapers by 10:20 a.m. (Def.'s Docs. Tab D Ex. 2.) Mora argues that he delivered newspapers to Tarpey's ...


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