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CAMPBELL v. DOMINICK'S FINER FOODS

March 8, 2000

MONROE CAMPBELL, PLAINTIFF,
V.
DOMINICK'S FINER FOODS, INC., DEFENDANT.



The opinion of the court was delivered by: Levin, United States Magistrate Judge.

  MEMORANDUM OPINION AND ORDER

Plaintiff Monroe Campbell ("Campbell") has brought this action against Defendant Dominick's Finer Foods, Inc. ("Dominick's") for racial discrimination, racial harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. and 42 U.S.C. § 1981. Before the court is Defendant's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56(d). For the reasons set forth below, the Motion is granted.

FACTUAL BACKGROUND*fn1

Dominick's operates a retail grocery chain in the greater Chicagoland area. Plaintiff, an African-American, was first employed by Dominick's on November 11, 1989 as a part-time Utility Clerk, an entry level position. On April 8, 1990, Plaintiff was promoted to Stock Clerk. Approximately two years thereafter, Plaintiff was promoted again to the position of Produce Clerk. Plaintiff held his position as a Produce Clerk until December 4, 1996, at which time he was terminated.

During his employment at Dominick's, Plaintiff was transferred to different stores six times per his request. He was disciplined in the form of verbal and written warnings and suspensions of varying lengths more than three dozen times during the course of his employment at Dominick's.

While working at Dominick's Store # 75*fn2, Plaintiff was disciplined at least 19 times for multiple violations of company rules including the following: (1) a written warning after a customer complained that he was cursing in front of the store; (2) a written warning for not being in his work area (when questioned by his supervisor, Plaintiff cursed under his breath); (3) a written warning after he refused to retrieve shopping carts from the parking lot; (4) a written warning after a manager told him to stop arguing with a white co-worker (Plaintiff told the manager to "quit fucking screaming at me"); (5) a one-week suspension for fighting with a black co-worker; and (6) a one-week suspension for threatening to damage the Produce Manager's car following an argument over the work schedule.

On October 10, 1996, the manager of Store # 433, Greg Kasperski, gave Plaintiff a written discipline form while Plaintiffs co-workers were present. Plaintiff objected and then, according to Plaintiff, "one thing led to another" and Plaintiff told Kasperski, "[y]ou're a fag. You must be gay. I'm not a gay man. I don't play that faggot shit." Kasperski told Plaintiff he was being insubordinate and sent him home. (See Pl.Dep. ¶¶ 197-203; Pl.Dep. Exs. 55-56; Kasperski Aff. ¶¶ 3-4). Following these events, Plaintiff was sent home and placed on suspension pending further investigation. Director of Human Resources Dewayne Howard investigated this matter and decided to transfer Plaintiff to Store # 68. Howard told Plaintiff to report to work at Store # 68 on Monday October 21, 1996, but later phoned Plaintiff, telling him to report to work at Store # 68 on Saturday October 19, 1996. Plaintiff did not report to work on October 19 because he was upset that Howard changed his start date. Subsequently, during the course of his employment at Store # 68, Plaintiff was given a verbal warning for reporting to work 25 minutes late and a one-day suspension for refusing to do a temperature check. On November 13, 1996, Plaintiff was told to go home after telling the manager of Store # 68, Joe Pardo, to get out of his face. Following the incident with Pardo, Plaintiff failed to report to work for the next five days he was scheduled.

In approximately mid-November 1996, Plaintiff, still working at Store # 68, used the telephone in a manager's office to place a personal call. Plaintiff had permission to make this call. While Plaintiff was on the telephone, Meat Department Manager Vince Gallagher came into the office to use the telephone. On November 27, 1996, Plaintiff used the same telephone to place another personal call, again allegedly with managerial permission. While Plaintiff was on the telephone, Vince Gallagher again came into the office to use the telephone to place an order for turkeys for Thanksgiving. When Gallagher saw that Plaintiff was on the telephone, he became angered. Gallagher told Plaintiff he was "tired of this shit" and forcefully tried to hang up the telephone. (See, Pl.Dep. ¶¶ 253-61).

Approximately two hours later, Plaintiff nodded "hello" to Fish Department Manager Tim Cashew who was speaking with Gallagher. Gallagher allegedly said to Plaintiff, "[w]hat the hell are You looking at?" Plaintiff responded, "I don't know who you think you're messing with. I'll beat your ass if you think you're messing with me. I don't care if you're a manager, I'll kick your fucking ass." Gallagher then called Plaintiff a "troublemaker" to which Plaintiff replied, "go fuck yourself." (See Pl.Dep. ¶¶ 263-64). Plaintiff was subsequently called into Pardo's office and, according to Plaintiff, Pardo and Co-Store Manager Bob Carlson told Plaintiff that he was being terminated. Human Resources Director Dewayne Howard subsequently reviewed the statements and other facts and recommended that Plaintiff be terminated. On December 4, 1996, Pardo advised Plaintiff that he was terminated for threatening Gallagher on November 27, 1996.

ANALYSIS

I. STANDARD OF REVIEW

Summary Judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has produced evidence to show that it is entitled to summary judgment, the party seeking to avoid such judgment must affirmatively demonstrate that a genuine issue of material fact remains for trial. LINC Fin. Corp. v. Onwuteaka, 129 F.3d 917, 920 (7th Cir. 1997).

In deciding a motion for summary judgment, a court must "review the record in the light most favorable to the nonmoving party and to draw all reasonable inferences in that party's favor." Vanasco v. National-Louis Univ., 137 F.3d 962, 964 (7th Cir. 1998). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nevertheless, the nonmovant may not rest upon mere allegations but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See also LINC, 129 F.3d at 920. A genuine issue of material fact is not shown by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, 106 S.Ct. 2505, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, ...


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