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United States District Court, Northern District of Illinois, Eastern Division

March 31, 2003


The opinion of the court was delivered by: Joan B. Gottschall, United States District Judge


Plaintiffs Anderson Hawkins and Larry Woodfork have sued their former employer(s), Groot Industries, Inc. and Groot Recycling and Waste Services, Inc. (collectively "Groot"), for various violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981.*fn1 In the first amended complaint, Hawkins and Woodfork, who are black men, specifically raise individual claims that (1) they were subjected to racial harassment and inferior terms and conditions at Groot; (2) they were subjected to racial discrimination with respect to discipline (and ultimately discharge) as well as promotions, work assignments, compensation, transfers, and other terms and conditions of employment; and (3) they were disciplined, harassed, and ultimately terminated in retaliation for opposing discrimination. In separate motions, Groot moved for summary judgment against Hawkins and Woodfork.*fn2 For the reasons explained below, Groot's motion for summary judgment against Hawkins is granted in part and denied in part, as is its motion for summary judgment against Woodfork.


The standard for summary judgment is well-known. Summary judgment is proper if "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). In determining whether the movant is entitled to summary judgment, the court examines the admissible evidence in the light most favorable to the nonmoving party, drawing any reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To avoid summary judgment, the party bearing the burden of proof on an issue must affirmatively show the existence of a genuine issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). But the nonmovant's own deposition or affidavit may provide sufficient affirmative evidence to survive summary judgment. Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994). "[U]nless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," there is no issue for trial. Anderson, 477 U.S. at 248. Significantly, however, courts apply the summary judgment standard "with added rigor in employment discrimination cases, where intent and credibility are crucial issues." Courtney, 42 F.3d at 418 (internal quotation marks and citations omitted). Indeed, the Seventh Circuit has stated "that a grant of summary judgment which turns on the issue of discriminatory intent should be approached with special caution."' Id. at 423 (citations omitted).

With this standard in mind, the court examines Groot's motions for summary judgment against Hawkins and Woodfork.*fn3

I. Hostile Work Environment Claim

Hawkins and Woodfork both contend they were subjected to a racially hostile work environment at Groot created by their co-workers and supervisors.*fn4 To succeed on a hostile work environment claim, a plaintiff "must show that (1) he was subjected to unwelcome harassment; (2) the harassment was based on his race, (3) the harassment was severe [or] pervasive so as to alter the conditions of the employee's environment and create a hostile or abusive working environment; and (4) there is a basis for employer liability." Mason v. S. Ill. Univ., 233 F.3d 1036, 1043 (7th Cir. 2000). Groot argues for summary judgment on the grounds that neither Hawkins nor Woodfork were exposed to actionable harassment at Groot and even if they were, Groot is not legally responsible for such harassment. The court addresses each of these arguments in turn.

A. Actionable Harassment

1. Hawkins

Regarding Hawkins, Groot's chief argument is that Hawkins was able to testify only regarding a few specific harassing comments, and those few comments are insufficient to sustain a hostile work environment claim. The court disagrees.

Hawkins testified that his co-workers Bob Lewkowicz and Chris Lewkowicz, who are white, made racially derogatory comments every day in the drivers' room at Groot where the drivers were gathered before leaving on their routes. They repeatedly called Hawkins and other blacks "nigger," "monkey," "porch monkey," "f----g monkey," "chango" (a Spanish word for monkey), "Kobe Bryant," and "Buckwheat." Hawkins further testified these derogatory comments were made in the presence of Groot supervisors. Additionally, Hawkins testified that white supervisors contributed to the racially hostile work environment. According to Hawkins, supervisor Jim Dowling told him to watch his tan because he was getting darker, supervisor Tom Mayer called him "boy," and supervisor Craig Phillips said "Oh, I like that" when Bob Lewkowicz pretended to slap Hawkins.

Groot asserts that "Hawkins was unable to testify . . . that either of the Lewkowiczes ever made any specific comment on any specific day in the presence of any other particular persons, including supervisors." (Defs.' Mem. Supp. Summ. J. re Hawkins at 10.) This argument falters. Hawkins testified that he was subjected to racial epithets on a daily basis. Where a hostile work environment claim involves ongoing conduct, a plaintiff "need not date stamp every incident." Ferguson v. Chicago Housing Auth., 155 F. Supp.2d 913, 916-17 (N.D. Ill. 2001) (citing Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1457 (7th Cir. 1994)). While Hawkins' case undoubtedly would be stronger if he could provide more detail, his recollection as it stands raises a disputed issue of material fact regarding the level of racial hostility in the work environment at Groot. Weighing evidence and evaluating the credibility of witnesses are issues for the trier of fact. Anderson, 477 U.S. at 255.

Groot also argues that the alleged comments made by the supervisors are not objectively racially offensive. Calling an adult black man "boy" strikes the court as an objectively, inherently offensive comment. A reasonable jury certainly could agree. Indeed, it is disconcerting that Groot suggests otherwise. Further, Hawkins' hostile work environment claim (regarding the conduct of both supervisors and co-workers) is buttressed by evidence from other drivers regarding the racial hostility of the work environment at Groot.*fn5 For example, plaintiffs offer the affidavits of Anthony Alexandria and Joseph Esposito, two white drivers formerly employed by Groot.*fn6 Alexandria attested that he heard Groot's white management employees, including Dowling, Phillips and C.J. Sturwold, call black employees "nigger" and "monkey." He further averred that Sturwold once said to him, "Anthony, we need to stick together because these black people can't do what we do." Likewise, Esposito attested that he heard other Groot employees routinely call black employees "monkeys" while members of Groot's management were present.

Although Groot argues to the contrary, such evidence is likely admissible as long as Hawkins was aware of those drivers' experiences while he was employed at Groot.*fn7 True, Hawkins must produce admissible evidence that he personally was subjected to discrimination. But in evaluating his hostile work environment claim, "the trier of fact must examine the totality of the circumstances, including evidence of harassment directed at employees other than the plaintiff."*fn8 Lewis v. Triborough Bridge & Tunnel Auth., No. 97 Civ. 0607, 2000 WL 423517, at *5 (S.D.N.Y. Apr. 19, 2000) (citing Schwapp v. Town of Avon, 118 F.3d 106, 111-12 (2d Cir. 1997)); Smith v. Northeastern Ill. Univ., No. 98 C 3555, 2002 WL 377725, at *5 (N.D. Ill. Feb. 28, 2002). And although Groot fervently disputes the truth of those affidavits and other evidence, (see, e.g., Defs.' Resp. Pls.' Rule 56.1(b)(3)(B) Statement ("Defs.' Resp. Pls.' SDF") at ¶¶ 18-19), and argues that the testimony of various witnesses is contradictory, Groot's position simply reinforces the court's conclusion that a jury must evaluate the strength and weight of the evidence regarding this claim.

2. Woodfork

Groot raises the same arguments for summary judgment against Woodfork as it did against Hawkins: that his testimony was not specific or detailed enough to support a hostile work environment claim. For the reasons explained above, Woodfork also raises a genuine issue of material fact regarding the level of racial hostility he experienced at Groot.

Woodfork, like Hawkins, testified that the Lewkowiczes called him racially derogatory names on a daily basis, including "nigger," "f----g nigger," "monkey," "f----g monkey," "dumb nigger," "dumb monkey," and "chango." And like Hawkins, Woodfork testified that these racial slurs were made in the drivers' room where the drivers were assembled prior to leaving on their routes in the presence of Groot supervisors. Moreover, Woodfork's claim, like Hawkins, is bolstered by the experiences of other drivers.*fn9

Further, Woodfork's testimony expressly implicated both supervisors and coworkers. For example, Woodfork testified that in or around the spring of 1999, in response to comments he made about slavery, white supervisor Sturwold said, "Hey that was the good old days, huh?" (Woodfork Dep. at 117:17-22; Woodfork's Resp. Defs.' Statement Undisputed Facts ("SUF") at ¶ 149.) A few minutes later, Sturwold said "something to the effect that `Well, it's good it's not like that now and . . . there's no bias or no racism now and you don't have to worry about that now.' And he just sort of smiled and walked out, got in his truck, and left." (Woodfork Dep. at 119:6-14.) Earlier, in December 1998, white supervisor Phillips told Woodfork" that he could fire [Woodfork] for any reason. He could fire [Woodfork] if he didn't like the color of [Woodfork's] eyes." According to Woodfork, "Phillips raised his gaze from Woodfork's hands, to his chest, and then to his eyes while he made the comment." (Woodfork's Resp. Defs.' SUF at ¶ 147A.) Groot, offering a racially-neutral explanation for Phillips' comment, claims that Phillips' gazing at Woodfork's skin does not give the comment an objectively racially offensive meaning. That is an argument Groot must save for the jury, together with its argument about the impact and meaning of Sturwold's comments.*fn10

B. Employer Liability

Groot also argues for summary judgment contending that even if Hawkins or Woodfork were subjected to a hostile work environment, Groot is not legally responsible for such harassment. That may turn out to be the case, but Groot has not yet met its burden. "[An] employer is liable for a hostile work environment created by the employee's coworkers . . . when the employee shows that his employer has "been negligent either in discovering or remedying the harassment."' Mason, 233 F.3d at 1043 (citations omitted). But an "employer is essentially strictly liable if the employee's supervisor created the hostile work environment." Id. An employer may avoid liability for a supervisor's conduct, however, if it can establish what is known as the Faragher- Ellerth affirmative defense. In other words, provided that no tangible employment action resulted from the supervisor(s)' harassment, Groot can avoid liability for racial harassment by its supervisors by proving: "(a) that the employer exercised reasonable care to prevent and correct promptly [the] harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Mason, 233 F.3d at 1043 n. 4 (internal quotation marks and citations omitted).

Regarding liability for the harassment by plaintiffs' co-workers, Groot is liable if it knew or should have known of the harassment, but failed to make efforts to stop it. Hostetler v. Quality Dining, Inc., 218 F.3d 798, 811 (7th Cir. 2000). Although Groot argues that there is no admissible evidence that Groot supervisors ever heard the racial slurs made by the Lewkowiczes or other drivers, a jury could find otherwise. Both Hawkins and Woodfork testified that the racially derogatory comments were made in the drivers' room when supervisors were present. Although their testimony lacked details about specific occasions, that is an issue for a jury to handle. Besides, Woodfork testified that even when the supervisors were in the office adjacent to the drivers' room, they were only separated by a Plexiglas window. According to Woodfork, supervisors must have been able to hear the daily barrage of racial slurs even in the office:

You got to take into consideration the way Chris [Lewkowicz] says it, okay? Chris is not saying `you monkey' or you `f----g monkey.' Chris is yelling it out on the top of his lungs, `f----g monkey, f----g Chango.' Chris doesn't say anything quietly, he yells it at the top of his lungs. Everyone can hear what Chris says. You can hear it in the office, you can hear it in the break room. If you're coming up the stairs and the door is open, you can hear it coming out the door. He yelled it. Him and his brother. They never said it, they yelled it.
(Woodfork Dep. 54:20-55:8.) Other drivers also testified that supervisors were present when the harassment took place.*fn11 And if the jury believes that supervisors not only knew about, but were contributing to, the hostile work environment, Groot's argument that it did not know, and could not have known, about the racial harassment of plaintiffs by their co-workers may be further weakened. The jury will have to weigh the evidence and make credibility determinations.

As for liability for alleged racial harassment by its supervisors, Groot argues that the undisputed facts show it has established the Faragher-Ellerth affirmative defense.*fn12 As stated above, to satisfy the first element of this affirmative defense, Groot must show that it exercised reasonable care to prevent and correct racial harassment. Employers who are able to establish this element frequently do so by proving that they had an express anti-harassment policy setting forth clear reporting procedures, and that they disseminated the policy to their employees. See, e.g., Shaw v. Autozone, Inc., 180 F.3d 806, 811-12 (7th Cir. 1999) ("[E]xistence of an appropriate anti-harassment policy will often satisfy this first prong.").

Attempting to do just that, Groot points out that its collective bargaining agreement with the drivers' union has an explicit non-discrimination policy. This is true, but all the provision says is that Groot and the Union agree not to unlawfully discriminate. Such a broad, general provision does not constitute a racial harassment policy. It neither explains racial harassment, nor offers employees any guidance regarding what they should do if they believe they have been subjected to racial harassment. Compare Molnar v. Booth, 229 F.3d 593, 601 (7th Cir. 2000) (general policy barring discrimination is not a sexual harassment policy, and is insufficient to establish first prong of defense) with Shaw, 180 F.3d at 811-12 (defendant satisfied first prong by adopting explicit antiharassment policy with specific, detailed reporting procedures, distributing it to each employee, and conducting training sessions on harassment).

Groot also notes that on June 29, 1998, it adopted a policy against sexual harassment, and shortly thereafter adopted a policy against discrimination. Despite Groot's argument to the contrary, however, it is disputed whether Groot made employees aware of these policies. Groot's assistant controller Georgine Wendell testified that both policies were posted in the drivers' room. But Hawkins testified that he was never given a copy of a policy regarding racial discrimination, and that no such policy was posted in the drivers' room (although he had seen the policy against sexual harassment posted there). Likewise, Woodfork testified that he had never seen the policy regarding racial discrimination, management never informed him that there was such a policy, and management never discussed reporting procedures for racial (or sexual) harassment with employees. This issue is both disputed and material, and therefore must be decided by the jury.*fn13

Whether Groot will be able to satisfy the second prong of the Faragher-Ellerth affirmative defense, i.e., that the plaintiffs unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm, will depend in part on whether Groot is able to satisfy the first prong. Given that Groot has not yet successfully established the first prong, the court need not address Groot's arguments regarding the second.

Groot's motion for summary judgment against Hawkins regarding his hostile work environment claim is denied, as is Groot's motion for summary judgment against Woodfork regarding his hostile work environment claim.

II. Discriminatory Discharge

Groot also seeks summary judgment against both Hawkins and Woodfork on their claims for discriminatory discharge. Normally to survive summary judgment on a discriminatory discharge claim, a plaintiff must show*fn14 that (1) he belongs to a protected class; (2) he performed his job in accordance with his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) similarly situated employees outside the protected class received more favorable treatment. Curry v. Menard, Inc., 270 F.3d 473, 477 (7th Cir. 2001). "Establishing a prima facie case creates a presumption of discrimination and shifts the burden to the employer to produce evidence of a legitimate, race-neutral reason for the adverse action." Id. If that burden of production is met, "the plaintiff then has the burden to show that the stated nondiscriminatory reason is pretextual." Id.

Neither the first nor the third elements are in dispute for either plaintiff. As for the second element, both Hawkins and Woodfork contend that they were singled out for discipline, and ultimately termination, because of their race. Under such circumstances," it makes little sense . . . to discuss whether [they] were meeting [their] employer's reasonable expectations." Id. (internal quotation marks and citation omitted). Accordingly, despite Groot's argument to the contrary, neither Hawkins nor Woodfork must show that he was meeting Groot's legitimate employment expectations to establish a prima facie case. Id. The initial inquiry, therefore, is whether each plaintiff has shown that he was treated less favorably than a similarly situated Groot employee who is not a member of plaintiff's protected class.

Before making that inquiry, however, an explanation of Groot's progressivediscipline policy is necessary. At all relevant times, Groot had written work rules applicable to its drivers that addressed areas such as attendance and safety issues. The relevant work rules regarding attendance stated:

(1) "Failure to notify the company not less than one hour before your regular show-up time when not reporting for work will result in a warning notice." (Work Rule 1, Woodfork's Resp. Defs.' SUF at ¶¶ 61.*fn15)
(2) "If you are off for any reason and you will be unable to report for work the following day you must notify the company by 2PM so that arrangements can be made to cover your absence." (Work Rule 1, id. at ¶ 62.)
(3) "Late — no call before starting time will result in a warning notice." (Work Rule 2, id. at ¶ 64.)
(4) "More than one late, with call, in a one month period will result in a warning notice." (Work Rule 3, id. at ¶ 65.)
(5) "Are habitually absent from work irregardless*fn16 . . . of the reasons." (Work Rule 4, id. at ¶ 66.)
(6) "[A] 4th warning letter within a 12 month period will result in a 3 day suspension." (Id. at ¶ 68.)
(7) "[A] 5th warning letter in a 12 month period will result in the termination of [the driver's] employment." (Id. at ¶ 69.)
The attendance-and-absence reporting rules applied to mandatory safety meetings in addition to drivers' usual start times. Additionally, under the safety rules, drivers had to wear hard-soled, high-top work shoes. Athletic shoes or other soft-soled shoes were expressly prohibited. The safety rules explicitly stated that any employee who failed to wear proper shoes "shall be sent home without compensation . . . ." (Id. at ¶ 74.) A plain reading of the work rules reveals that the rule about the fifth warning letter resulting in termination referred only to warning letters based on failure to comply with the attendance-and-absence reporting rules.

Those are the relevant written rules. How Groot implemented them in practice is one of the central issues in this case. It is undisputed that Groot did not strictly follow the written rules. For example, when confronted with the record of an employee who was not terminated after receiving five warning letters, Dowling answered: "Well, it's obvious we don't enforce the fifth warning letter . . . ." (Dowling Dep. at 103:9-11.) He further testified that the "real" number of warnings that would result in termination was probably more like seven or eight. Both Hawkins and Woodfork contend that in practice, Groot enforced the work rules more harshly against its black employees than against its white employees.

That contention brings the court back to the issue of whether Hawkins or Woodfork can show that a similarly situated white employee was treated more favorably under Groot's progressive-discipline policy than they were. Regarding Hawkins' claim, Groot fired Hawkins on May 5, 1999 for cumulative violations of the attendance-and-absence reporting rules. Hawkins was supposed to report for work by 6:00 a.m. that day, but he called supervisor Dowling at 6:28 a.m. to report that his car had broken down. In response, Dowling informed him that he was terminated, effective immediately. That same day, supervisor Mayer wrote a termination letter to Hawkins, which, according to the May 5th letter, was Hawkins' sixth warning letter in a twelve month period. In actuality, it was at least Hawkins' eighth warning letter in the past year.*fn17 The explanations for those warning letters included being late with no call, being late for a mandatory safety meeting (presumably with no call), missing another mandatory safety meeting, being a no-call/no-show for work on two occasions, and being absent then failing to call by 2:00 p.m. to report his status for the next work day.*fn18

Hawkins gives examples of at least eight white employees whom he believes were similarly situated and received more favorable treatment than he did: David Prowicz, Tom Sturm, Todd Lazansky, Carmen Murillo, John Humphreys, Tom Finnegan, Robert Whited and Randy Slagle. "[A]n employee need not show complete identity in comparing himself to the better treated employee, but he must show substantial similarity." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000). In disciplinary cases like this one, "a plaintiff must show that he is similarly situated with respect to performance, qualifications, and conduct. This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or their employer's treatment of them." Id. at 617 (internal citations omitted).

Under this standard, of those eight employees, only Finnegan, Prowicz and Sturm qualify as potentially similarly-situated. Humphreys had special licensing qualifications that Hawkins lacked. Lazanksy was a mechanic, not a driver, and thus was a member of a different union, was subject to a different collective bargaining agreement and had different supervisors. As for Whited, Sturm and Murillo, their absences were predominantly for medically-related reasons and they (evidently) followed the attendance-and-reporting procedures. Under the work rules, employees who are absent but follow the reporting procedures are not subject to a written warning unless their absences are deemed excessive. In contrast, employees who are late and fail to call before their start time are supposed to receive a written warning each time, as are employees who simply fail to report to work without calling. Sturm's, Murillo's and Whited's situations are not similar enough to Hawkins' to allow comparison, despite plaintiffs' suggestion to the contrary.

After reviewing the evidence presented regarding Prowicz, Finnegan and Slagle, although it is evident that Hawkins' claim is far from strong, he survives summary judgment. Comparing himself to Slagle does nothing to further his claim because Slagle never exceeded five written warnings in a twelve month period. Prowicz, however, received six written warnings in one twelve month period and was not terminated. Similarly, Finnegan received six attendance-related written warnings in less than twelve months and was not terminated (but he was terminated two weeks later upon receiving a non-attendance related warning letter for driving on the wrong side of the road). Hawkins also correctly points out that Finnegan received just one warning letter when, under a literal application of the work rules, he should have received three. But Hawkins omits the fact that he, too, escaped written warnings that he technically should have received; e.g., he was late without calling on at least two, if not three, occasions,*fn19 and was not disciplined for any of those infractions.*fn20

Groot argues that Hawkins clearly received more favorable treatment than Prowicz or Finnegan because he was not terminated until he accumulated eight written warnings. Although it is now known that the termination letter was at least Hawkins' eighth warning letter in a twelve month period, Groot's understanding on May 5th was that Hawkins' termination letter constituted his sixth written warning — and that strikes the court as the critical time of inquiry.

Did Prowicz and/or Finnegan, who were not terminated when they received their sixth warning letters, receive more favorable treatment from Groot than Hawkins, who was terminated? or was Groot's implementation of its progressive-discipline policy riddled with inconsistencies that had nothing to do with race? Those are close questions which the court cannot resolve through summary judgment. Hawkins presents a triable issue of material fact regarding whether he received less favorable treatment than similarly situated white employees. Groot undoubtedly will argue that it had a legitimate, non-discriminatory reason for discharging Hawkins, i.e., his performance, and may well prevail.*fn21 But not yet. The legitimacy of any reasons Groot proffered is intertwined with whether Groot enforced its discipline policy more harshly against black employees than white employees, and thus cannot be decided on summary judgment.

Woodfork's claim, however, cannot survive summary judgment. Woodfork was terminated on December 21, 1999; his termination letter stated it was his eleventh warning letter in a twelve month period. He offers the same pool of similarly situated white employees that Hawkins did. As explained above, the only potential similarly situated white employees in that pool are Slagle, Prowicz and Finnegan. None of those three received as many written warnings as Woodfork, which suggests that Woodfork cannot establish a prima facie case of discrimination.

But the answer is not that simple. By the court's count, Woodfork received only ten warning letters in a twelve month period, not eleven.*fn22 And the letter dated July 6, 1999 was not attendance-based, but rather was for reporting to work without work boots. That reduces the count to nine.*fn23 Additionally, the warning letter dated July 7, 1999 appears to have had no basis.*fn24 Woodfork reported for work on July 6th, but was sent home because he did not have his work boots. He received a warning for that infraction, which he accepts was proper. But then he received another warning letter on July 7th for failing to call in by 2:00 p.m. on the 6th to report that he would be at work the next day. The work rules, on their face, do not require such a call. Rather, work rule 1 states: "If you are off for any reason and you will be unable to report for work the following day you must notify the company by 2PM so that arrangements can be made to cover your absence." (Woodfork's Resp. Defs.' SUF at ¶ 62 (emphasis added).) It is undisputed that Woodfork reported to work on July 7th, SO he had no obligation to call.*fn25 Woodfork not only received an unwarranted warning letter, he was sent home again on July 7th for failing to call in his status, so he also lost a day's pay.

Woodfork thus has an argument that he really had only eight attendance-related warning letters. The problem is that even at that level, he offers no one who is similarly situated. The closest is Finnegan. Woodfork argues that if Finnegan had received a warning letter for each time he was late with no call, rather than one warning letter for three infractions, Finnegan would also have had eight attendance-related infractions. The problem with this argument is that Woodfork also received a couple of breaks during his time at Groot.*fn26 If the court were to consider the infractions that did not result in warnings for Finnegan, it would have to do so for Woodfork as well.

Woodfork's failure to give an example of a similarly situated white employee who received more favorable treatment under Groot's progressive-discipline policy is fatal to his claim. Without setting forth a prima facie case of discriminatory discharge, he cannot survive summary judgment.

III. Unequal Compensation (Hawkins only)

Groot also moves for summary judgment against Hawkins regarding his claim that he was discriminated against in pay. Drivers are entitled to full-scale pay once they have been employed by Groot for 42 months. Hawkins was entitled to full-scale pay beginning on January 5, 1998, but Groot failed to raise his salary to full-scale until October 5, 1998. Upon discovering that he had not been properly paid for ten months, Hawkins did not file a grievance (though he could, and should, have), but he raised the issue with Dowling and Phillips on several occasions beginning in October 1998. It is disputed whether he complained, or simply made inquiries. It is also disputed whether he voiced any concern that the discrepancy in his wages was the result of race discrimination. After his termination on May 5, 1999, Hawkins filed an EEOC complaint, which included an allegation that he was discriminated in pay. After Hawkins filed his EEOC complaint, but before this litigation commenced, Groot paid him the full amount he was due for the ten months he was paid at the wrong rate.

There is no question that Hawkins can make a prima facie case of pay discrimination: it is undisputed that other similarly situated white drivers were paid full-scale as soon as they became entitled to it. But Groot argues that it has a legitimate, non-discriminatory reason: clerical error. Hawkins transferred to Groot from its subsidiary Crown Recycling & Waste Services, Inc. ("Crown"). According to Groot, it miscalculated the combined amount of time Hawkins worked for both Groot and Crown, and thus mistakenly failed to raise Hawkins to full-scale when he first became entitled to that rate. Groot claims it reexamined its files after Hawkins filed his EEOC complaint, discovered the error, and promptly paid him what he was owed. In support of its non-discriminatory reason, Groot points out to the undisputed fact that in 1997, 1998 and 1999, Groot paid other black drivers full-scale as soon as they became entitled to that rate.

Given Groot's proffered non-discriminatory reason for the pay discrepancy, the burden is on Hawkins to show that Groot's reason is pretextual. Hawkins fails to raise a disputed issue of material fact on the matter of pretext. Apart from his own personal belief, Hawkins offers no basis to support a finding that Groot's failure to pay him fullscale as soon as he became entitled was the result of racial discrimination. "Such subjective beliefs of the plaintiff, however, are insufficient to create a genuine issue of material fact." McMillian v. Svetanoff, 878 F.2d 186, 190 (7th Cir. 1989). Groot's motion for summary judgment regarding Hawkins' claim for pay discrimination is granted because no reasonable jury could find in Hawkins' favor on this claim.

IV. retalitory Discharge

Groot seeks summary judgment against Hawkins and Woodfork on their retalitory discharge claims as well. In Haywood v. Lucent Technologies Inc., __ F.3d__, 2003 WL 1400496 (7th Cir. Mar. 20, 2003), the Seventh Circuit reviewed the ways in which a prima facie case of retaliation can be established:

The plaintiff may establish a prima facie case of retaliation in one of two ways. First, [he] may present direct evidence of a statutorily protected activity, an adverse action and a causal connection between the two. . . .
The second is the indirect method, our "adaptation of McDonnell Douglas to the retaliation context." At the first stage, the plaintiff must show that (1) [he] engaged in statutorily protected activity; (2) [he] performed [his] job according to [his] employer's legitimate expectations; (3) despite [his] satisfactory job performance, [he] suffered an adverse employment action; and (4) [he] was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Under this method, the "plaintiff so proceeding need not show even an attenuated causal link."
Id. at *5 (internal citations omitted).

Regarding Hawkins, Groot contends that his claim fails because he did not engage in protected activity, he cannot establish that he was performing satisfactorily, and there is no evidence that Groot's reason for terminating Hawkins — his disciplinary record — was pretextual. Hawkins' one-paragraph argument in opposition to summary judgment on this claim is woefully deficient. It is clear, however, that Hawkins claims he engaged in protected activity in two ways: through his association with Frederick Giles, a black co-worker who filed an EEOC complaint, and through his own internal complaints about the discrepancy in his pay.*fn27 His affiliation with Giles is insufficient as a matter of law: being friends with a person who files an EEOC complaint does not constitute protected activity. See Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998) (providing spiritual guidance and friendship does not constitute engaging in protected activity). There is a genuine issue of material fact regarding whether his complaints about the discrepancy in his wages constitute protected activity, however. Hawkins claims that he addressed the pay discrepancy with Dowling and Mayer on more than one occasion beginning in October 1998. If he merely raised a problem with his salary, he did not engage in protected activity. The disputed issue is whether he ever indicated to them that he believed the discrepancy was the result of racial discrimination. Given this disputed issue, the court must assume for purposes of this motion that Hawkins did engage in protected activity.

But even assuming that Hawkins engaged in protected activity, his claim cannot survive. He cannot proceed under the McDonnell-Douglas test because he cannot show he was performing up to Groot's reasonable expectations. Granted, as explained above, Hawkins did not have to make a showing on that element for his discriminatory discharge claim because that claim was based on discriminatory enforcement of discipline policies. But the court finds no legal basis to eliminate that element from the McDonnell-Douglas test with respect to the retalitory discharge claim, an entirely independent basis for recovery. If that element were eliminated, Hawkins' retalitory discharge claim would be identical to his discriminatory discharge claim, with no required showing of causation between engaging in protected activity and discharge. Such a result is illogical.

At a minimum, therefore, Hawkins must raise a material issue of fact regarding a causal connection between engaging in protected activity and discharge — and he has failed to do so. Hawkins argues (without any citation to the record or the statement of facts) that as a result of his complaints about the disparity in pay, he "was made to work more and later than others . . . [and] was then subjected to inferior terms and conditions of employment and ultimately terminated." (Hawkins' Opp. Br. at 18.) As to the assertion that he had to work more and later than others, Hawkins identified a single instance in which Dowling allegedly allowed other drivers to go home rather than sending them to help Hawkins (who usually worked alone) finish his route when he had an injured leg. (Hawkins Dep. 296:4-17.) That incident took place sometime after March 29, 1999. Hawkins offers no connection between that incident and his complaints about the pay disparity. Indeed, Hawkins' testimony suggested that the incident occurred in retaliation for his association with Giles, not for any complaints about pay. And his assertion that he was subjected to inferior terms and conditions of employment after complaining about his pay is unsupported. Without some evidence that Hawkins' allegedly awful situation at work became even worse after he engaged in protected activity — which Hawkins has not offered — a reasonable jury could not render a verdict for him for retalitory discharge.

Nor does Woodfork's retalitory discharge claim survive summary judgment. Like Hawkins, he cannot rely on the McDonnell-Douglas test because he cannot show that he was meeting Groot's reasonable performance expectations; he must instead show some causal connection between engaging in protected activity and getting fired. It is uncontested that Woodfork engaged in protected activity. On August 11, 1999, after punching in two minutes late and getting sent home from work, Woodfork filed a grievance claiming that the disciplinary policy was enforced more harshly against black employees than white employees. On August 31st, Woodfork submitted another written grievance, complaining that Bob Lewkowicz had been racially harassing him.*fn28 On November 5th, Woodfork filed an EEOC charge. And on November 30, 1999, Woodfork filed a grievance contesting an attendance-related warning letter. A few weeks later, on December 21, 1999, Woodfork was terminated.

The problem for Woodfork is that Groot offers Woodfork's accumulation of excessive attendance-related warning letters as "unrebutted evidence that it would have taken the adverse employment action against [Woodfork] anyway, "in which event [Groot's] retalitory motive, even if unchallenged, was not a but-for cause of the plaintiff's harm."'*fn29 Haywood, 2003 WL 1400496, at *5 (quoting Stone v. City of Indianapolis Public Util. Div., 281 F.3d 640, 642 (7th Cir. 2002)). Groot's motion for summary judgment on this claim is therefore granted.


______For the reasons given above, Groot's motion for summary judgment against

Hawkins is granted in part and denied in part, as is its motion for summary judgment against Woodfork.


Before the court is plaintiffs' motion for leave to file their second amended complaint to: (1) delete the Title VII claim brought on behalf of plaintiffs Enrique Henandez, Javier Guerrero and the proposed class of Hispanic employees;[fn1a] and (2) add a retaliation claim under 42 U.S.C. § 1981 on behalf of Henandez. Defendants Groot Industries, Inc. and Groot Recycling and Waste Services, Inc. (collectively "Groot") opposed the motion only to the extent plaintiffs seek to add a retaliation claim on behalf of Henandez. As explained below, Henandez's proposed retaliation claim is time-barred and does not relate back to his other claims, so granting leave to amend to add that count would be futile. Plaintiffs may file a second amended complaint to delete the Title VII claim brought on behalf of Hispanic employees, but may not add a retaliation claim for Hernandez.

Although leave to amend generally should be given freely, Foman v. Davis, 371 U.S. 178, 182 (1962), that is not the case if amendment would prove futile, i.e., when the amended complaint would not survive a motion to dismiss. Sports Center, Inc. v. Brunswick Marine, 63 F.3d 649, 652 (7th Cir. 1995). "To hold otherwise would impose upon the defendants and the courts the arduous task of responding to an obviously futile gesture on the part of the plaintiffs. Rule 15(a) does not require the courts to undertake such an exercise." Perkins v. Silverstein, 939 F.2d 463, 472 (7th Cir. 1991) (citations omitted). The court therefore must evaluate whether Henandez's proposed retaliation claim would survive a motion to dismiss.

At this point, an explanation of the procedural background of this case is helpful. On March 12, 2001, plaintiffs Anderson Hawkins and Larry Woodfork filed the original complaint in this action, raising various claims against Groot for purported violations of Title VII and § 1981; the original complaint specifically included individual claims by Hawkins and Woodfork alleging retalitory discharge. On December 5, 2001, plaintiffs sought leave to file a first amended complaint to add Hernandez, Guerrero, and a proposed class of Hispanic employees as plaintiffs. The proposed first amended complaint included an individual retaliation claim on behalf of Guerrero, but not Hernandez. The court granted the motion in part. Plaintiffs now seek leave to amend the complaint again.

Groot terminated Hernandez on January 6, 2000. The statute of limitations for § 1981 claims is two years, Jones v. R.R. Donnelley & Sons Co., 305 F.3d 717, 728 (7th Cir. 2002), so the limitations period for his claim expired on January 6, 2002. When plaintiffs filed their motion for leave to amend on December 5, 2001 — before the statute of limitations ran — they failed to include a retaliation claim for Hernandez. Plaintiffs contend they should be given leave to add that claim now because they uncovered a document in discovery (after filing the first motion for leave to amend) that they believe supports a retalitory discharge claim, and because they "were not certain [of] all of the circumstances related to [Hernandez's] termination." (Pls.' Mot. at 2, ¶ 9.) Even if the so-called "termination document" supports a retaliation claim (which is questionable), this argument, apparently seeking to toll the statute of limitations, gets Hernandez nowhere. As Henandez admits in the proposed second amended complaint, he verbally complained that he was being discriminated against and harassed, then was terminated the very next day. (Proposed Sec. Am. Cmp. ¶ 95-96.) He had every reason to believe he was retaliated against on the date of his termination. That he later acquired evidence that might bolster his retaliation claim does not change the fact that he knew, or reasonably should have known, of his claim on January 6, 2000. See Jones. v. Merchs. Nat'l Bank & Trust Co., 42 F.3d 1054, 1058 (7th Cir. 1994) (statute of limitations for § 1981 claim begins to run when plaintiff knows or reasonably should know of violation); Jackson v. Int'l Bhd. of Teamsters, No. 02 C 2745, 2002 WL 31572544, at *8 (ND. Ill. Nov. 18, 2002) (retaliatory discharge claim arose on date of termination). By waiting until August 27, 2002 (when the second motion for leave to amend was filed) to raise any complaint about his termination, Hernandez blew the statute of limitations by nearly eight months.

Nor can the relation-back doctrine save his claim. Under the applicable section of Fed.R.Civ.P. 15(c), an amended pleading relates back to the date of the original pleading when "the claim . . . arose out of the conduct, transaction, or occurrence set forth . . . in the original pleading." "The main consideration is whether the general fact situation provided the defendant with adequate notice of the new matters alleged in the amendment." Hawkins v. Groot Indus., Inc., 210 F.R.D. 226, 232 (N.D. Ill. 2002) (quoting Commonwealth Fin. Corp. v. USAmeribancs, Inc., No. 86 C 6181, 1987 WL 19142, at *3 (N.D. Ill. Oct. 20., 1987)). Regarding Hernandez, the first amended complaint alleges that he was subjected to ethnic discrimination, a hostile work environment, and inferior terms and conditions of employment. Although the first amended complaint explicitly raises retaliation claims on behalf of each of the other named plaintiffs, it is utterly silent regarding Hernandez's termination, let alone his now-alleged active opposition to ethnic discrimination in the workplace. The retaliation claim therefore is not just a new legal theory based on the original facts. Had plaintiffs previously alleged any facts suggesting that Hernandez made complaints opposing discrimination while employed at Groot, the court's ruling might have been different. See Davis v. Univ. of Chicago Hosps., 158 F.R.D. 129, 131 (N.D. Ill. 1994) (where plaintiff originally alleged both that she was discriminated against and that she filed an EEOC complaint, retaliation claim related back because it arose out of EEOC charge). But under the circumstances here, the court cannot conclude that the first amended complaint sufficiently put Groot on notice that it might have to defend a retaliation claim from Hernandez.

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