October 1995, Plaintiff was disciplined at least eight times,
including suspensions for excessive and/or unauthorized absences.
From October 1995 until October 10, 1996, Plaintiff worked at
Store # 33, and he was disciplined at least ten times for such
actions as acting rudely to customers, excessive absences,
obtaining unauthorized overtime by punching in early and refusing
to punch out for his break.
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.
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
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
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, 89 L.Ed.2d 538
(1986). Rather, a genuine issue of material fact exists only if
"a fair-minded jury could return a verdict for the [nonmoving
party] on the evidence presented." Anderson, 477 U.S. at 252,
106 S.Ct. 2505.
"`Summary judgment is improper in a discrimination case where a
material issue involves any weighing of conflicting indications
of motive and intent.'" Cowan v. Glenbrook Security Services,
Inc., 1996 WL 596509, *1 (N.D.Ill. 1996) (quoting Stumph v.
Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir. 1985)) citing
Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1218 (7th
Cir. 1980). On the other hand, the Seventh Circuit court in
Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1573 (7th Cir.
1989) explained that summary judgment can be appropriate in
employment discrimination cases:
. . realization that Title VII is occasionally or
perhaps more than occasionally used by plaintiffs as
a substitute for principles of job protection that do
not exist in American law, [has] led the courts to
take a critical look at efforts to withstand . . .
summary judgment. A district court judge faced with
such a motion must decide . . . whether the state of
the evidence is such that, if the case were tried
tomorrow, the plaintiff would have a fair chance of
obtaining a verdict. If not, the motion should be
granted and the case dismissed.
II. RACE DISCRIMINATION CLAIM STANDARD