The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Plaintiff Latroy Hubbard's
("Hubbard") and Defendant Certified Grocers Midwest, Inc.'s ("Certified")
cross-motions for summary judgment. For the reasons stated below we grant
Certified's motion and deny Hubbard's motion.
Hubbard is an African-American male. He began his employment with
Certified in September of 1994 as an Order Selector ("OS"). In 1994,
pursuant to a collective bargaining agreement, there was a minimum level
of production for
selector/loaders. Selector/loaders were required to perform at a
production rate to meet 85% of a set production standard called an
"Engineered standard," Each shift that a selector/loader failed to meet
the minimum production standard, he received a disciplinary step. After
he got to the seventh step, his employment could be terminated under the
collective bargaining agreement. A selector/loader could move back one
step if he met the productivity standard for eight consecutive days.
Hubbard admits that on August 11, 2002 he began work at 5:30 p.m. and
around 11:00 p.m., after four and one-half hours of work, he told John
Saban ("Saban"), his supervisor, that his "back locked up in the
freezer." (CSF 47). Hubbard went to the emergency room and returned from
his doctor with a note. He was excused from the remainder of the shift.
Saban evaluated Hubbard's work productivity for the four and a half hours
he worked and found that Hubbard did not meet the minimum productivity
standard. Since, the productivity deficiency moved Hubbard to the seventh
step, his employment was terminated. After his termination Hubbard filed
an Illinois Workers' Compensation Act ("IWCA") claim and a discrimination
claim with the Equal Employment Opportunity Commission ("EEOC"). In the
instant action Hubbard has filed complaint alleging that Certified
discriminated against him because of his race in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
(Count 1), and that he suffered a
retaliatory discharge because he filed an IWCA claim (Count II).
Both Hubbard and Certified have moved for summary judgment.
Summary Judgment is appropriate when the record, viewed in the light
most favorable to the nonmoving party, reveals that there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed, R. Civ. P, 56(c). In seeking a grant of
summary judgment, the moving party must identify "those portions of the
`pleadings, depositions, answers to interrogatories, and admissions on
file, if any,' which it believes demonstrate the absence of a genuine
issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986) (quoting Fed. R, Civ. P. 56(c)). This initial burden may be
satisfied by presenting specific evidence on a particular issue or by
pointing out "an absence of evidence to support the non-moving party's
case." Celotex, 477 U.S. at 325. Once the movant has met this
burden, the non-moving party cannot simply rest on the allegations in the
pleadings, but, "by affidavits or as otherwise provided for in [Rule 56],
must set forth specific facts showing there is a genuine issue for
trial." Fed.R.Civ.P. 56(e). A "genuine issue" in the context of a
motion for summary judgment is not simply a "metaphysical doubt as to the
material facts," Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a
genuine issue of material fact exists when "the evidence is such that
reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th
Cir. 2000). The court must consider the record as a whole in a light most
favorable to the nonmoving party and draw all reasonable inferences that
favor the nonmoving party. Anderson, 477 U.S. at 255; Bay v.
Cassens Transp, Co., 212 F.3d 969, 972 (7th Cir. 2000).
I. Race Discrimination Claim
Hubbard argues he is entitled to summary judgment because Certified
terminated him in violation of Title VII. A plaintiff can defeat a
summary judgment clam brought by an employer in a Title VII
discrimination case by proceeding under the direct or indirect method of
proof in order to defeat the motion. Pafford v. Herman, 148 F.3d 658,
665 (7th Cir. 1998). Under the direct method, the plaintiff can show
through direct or circumstantial evidence that the alleged harmful action
of the employer was "motivated by an impermissible purpose, such as [his]
race or national origin." Id, Under the indirect method the
plaintiff must establish a prima
facie case which will allow an inference of discrimination.
Id. Hubbard does not present sufficient evidence to proceed
under the direct evidence method and will therefore, need to proceed
under the indirect method.
Under the McDonnell Douglas indirect approach, in order to
defeat a motion for summary judgment the plaintiff must make out a
prima facie case of race discrimination by showing that: (1) he was
a member of a protected class; (2) he was performing his job
satisfactorily; (3) he experienced an adverse employment action; and (4)
similarly situated individuals "not in the protected class were treated
more favorably." Haywood v. Lucent Techs, Inc., 323 F.3d 524,
531 (701 Cir. 2003). If a plaintiff establishes & prima.
facie case of discrimination, the employer must then provide a
legitimate, non-discriminatory reason for the adverse employment action.
Hildebrandt v. Ill Dept. of Nat. Res., 347 F.3d 1014, 1030 (7th
Cir. 2003) (citing Traylor v. Brown, 295 F.3d 783, 788 (7th Cir.
2002)). If the employer does so, the plaintiff must then present
sufficient evidence to prove that the explanation is pretextual.
Certified admits that Hubbard is a member of a protected class and that
his termination constitutes an adverse employment action. However,
Certified argues that Hubbard failed to meet Certified's legitimate
expectations, and that Hubbard has failed to show that similarly situated
employees outside the protected class were
treated more favorably or that Certified's reason for his
termination is a pretext.
A. Whether Hubbard Met Certified's Legitimate Expectations
Certified argues that Hubbard failed to meet Certified's legitimate
job-related expectations. There is ample evidence to support Certified's
contention. Certified asserts in its 56,1 statement of material fact
number 30 that "[d]espite being one of the more senior selectors, Hubbard
had problems meeting the production standards and was suspended numerous
times for productivity, and came close to termination several times."
Pursuant to Local Rule 56.1 this fact is deemed to be admitted because
Hubbard failed to provide a proper citation to support his denial.
Pursuant to Local Rule 56. 1, when a party files a motion for summary
judgment each party must prepare a statement of material facts and each
party is required to respond to the opposing party's statement of
material facts and either admit or deny each fact. A denial is improper
if the denial is not accompanied by specific references to admissible
evidence or at least evidence that represents admissible evidence.
Dent v. Bestfoods, 2003 WL 22025008, at *1 n.1 (N.D. Ill. ...