United States District Court, N.D. Illinois
March 16, 2004.
LATROY HUBBARD, Plaintiff
CERTIFIED GROCERS MIDWEST, INC, Defendant
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. 2003);
Malec v. Sanford, 191 F.R.D. 581, 584-85 (N.D. Ill. 2000).
Pursuant to Rule 56.1 any facts included in a party's statement of facts
that are not properly denied by the opposing party are deemed to be
admitted. Local Rule 56.1; Dent, 2003 WL 22025008, at * 1 n.1.
Hubbard's response to Certified's statement of fact number 30 was that
his performance was good and the only support he provides for his denial
was his own affidavit. However, Hubbard's own self-assessment of his work
performance is irrelevant, because the issue is whether he was meeting
the expectations of Certified and whether or not the expectations were
reasonable. See Rabinovitz v. Pena, 89 F.3d 482, 487 (7th Cir.
1996)(indicating that a plaintiff's "own opinions about his performance
or qualifications [does not] give rise to a material factual dispute.");
Abioye v. Sundstrand Corp., 1997 WL 795850, at *5 (N.D. Ill.
1997)(stating that a "plaintiff's own opinion of his job abilities
carries no weight in showing he performed up to legitimate
expectations."). Also, Hubbard simply cites the entirety of his affidavit
and fails to specify which portion supports his denial.
Furthermore, Hubbard's denial of fact number 30 is inconsistent with
this deposition testimony where he stated: "I can remember being
threatened with termination plenty of times, but I remember being
suspended numerous times for not making case counts. But I was always
threatened with termination during standards time. . . ." (P Dep.
22). See Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.
1995)(stating that to the extent that an affidavit is inconsistent with
the affiant's deposition testimony the affidavit should not be credited
unless a reasonable explanation is offered for the inconsistency);
See Piscione v. Ernst & Young L.L.P.,
171 F.3d 527, 532 (7th Cir. 1999) (stating that "[i]t is a
well-settled rule of this Court that a plaintiff cannot create an issue
of material fact merely by manufacturing a conflict in his own testimony
by submitting an affidavit that contradicts an earlier deposition, and,
in turn, defeat a defendant's motion for summary judgment." (citations
omitted)). Pursuant to Local Rule 56.1 Hubbard admits that " [o]ver the
course of his employment, Hubbard was disciplined for failing to meet
production standards 204 times," (CSF 32). Hubbard does not directly deny
the allegation, but instead offers an additional allegation in his favor
that he is as good a worker as other employees which does not directly
contradict the assertion, but allows Hubbard to give the appearance that
he is denying the fact without actually doing so. See Jankovich v.
Exelon Corp., 2003 WL 260714, at *5 (N.D. Ill. 2003)(indicating that
an evasive denial is an improper denial and thus the contested fact is
deemed to be admitted pursuant to Local Rule 56.1).
In regards to Hubbard's termination, Hubbard admits pursuant to Local
Rule 56.1 that on July 1, 2002 he was assessed his sixth step of
progressive discipline and that unless he met the standard for eight
consecutive days, the next time he missed the standard, Certified could
terminate his employment, (CSF 44), Hubbard does not deny and therefore
admits that "on August 11, 2002, Hubbard began work at 5;30 p.m. . . .
and that around 11:00 p.m., after four and one-half hours of work,
Hubbard told Saban that his back locked up in the freezer." (CSF
47). Certified asserts in its 56,1 statement of material facts that Saban
calculated Hubbard's production for the four hours that Hubbard worked
before he was injured and determined that Hubbard's percentage was 73%.
(CSF 52). Hubbard improperly attempts to deny this fact. Again he offers
new facts regarding contradictory printouts to give the appearance that
his denial is legitimate, but Hubbard fails to contradict Certified's
assertion in fact number 52. Since Hubbard does not deny the statement
made by Certified he admits that his percentage on August 11, 2002 was
73%. Also, in regards to the allegedly inconsistent printouts, both of
the printouts indicated percentages well below the 85% minimum and
Certified offers a reasonable explanation for the two printouts. (Reply
CSF 52). Certified asserts in its material statement of facts that
Hubbard's failure to meet the 85% minimum on August 11, 2002 was the
seventh time and he had reached the termination step. (CSF 53), Hubbard
apparently felt obligated to deny this fact. However, the above mentioned
admissions establish that this fact is true.
Certified asserts that when an employee works at least two hours during
a shift and fails to meet the productivity standard he is given a step of
progressive discipline. (CSF 18). Hubbard admits this fact. Hubbard
contends that mitigating facts can prevent a step discipline if an
employee fails to meet the productivity
standard, however, he bases his belief on the manner in which
Luttrell was treated which is a unique situation. (R CSF 21). Hubbard
fails to provide any legitimate basis for his denial of Certified's claim
that if Certified employees fail to finish a shift because of an injury,
they may still received a step discipline for the portion of the shift
that they worked. (CSF 27). Hubbard merely cites broadly to several
exhibits. Certified acknowledges that a worker would not be evaluated for
the productivity standard for any portion of his work done while he was
injured, (CSF 28). As indicated above Hubbard admits that he worked
approximately four and a half hours before his back locked up and he went
to the doctor. (CSF 47).
Hubbard also attempts to introduce as a red herring allegations that he
failed to meet the productivity standard on August 11, 2002 because he
was not properly trained. Hubbard claims that his problems meeting the
productivity standards were because the freezer isles were renumbered in
1999 and Hubbard was not retrained. However, Hubbard admits that he is
not certain whether any employees received additional training once the
freezer was renumbered and admits that the basis for his belief is a
statement which is hearsay which was told to him by a former supervisory
trainee. (CSF 39, 40). In regards to fact number 39 Hubbard makes general
reference to an affidavit but fails to specify which portion is
applicable. Therefore, it is clear that Certified was justified in
terminating Hubbard's employment after he
reached the seventh step on August 11, 2002 because Hubbard was not
meeting Certified's legitimate expectations and that no reasonable jury
could find otherwise.
B. Similarly Situated Employees
Employees are similarly situated if their "performance, qualifications
and conduct" are substantially similar. Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 617-18 (7th Cir. 2000). Employees are generally
similarly situated if "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 the employer's treatment of them." Peele
v, Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir. 2002) (quoting
Radue, 219 F.3d 617-18),
Hubbard claims in his answer to Certified's motion for summary judgment
that Dave Luttrell ("Luttrell") and Richard Jesup ("Jesup") are similarly
situated employees that were treated more favorably than him. It is
somewhat appalling that Hubbard would compare himself to Luttrell and
complain about favorable treatment. Luttrell has cerebral palsy and in
2001 he was having trouble meeting production standards. Hubbard admits
that Luttrell requested an American with Disabilities accommodation and
while Certified considered the request it agreed to temporarily
lessen Luttrell's percentage requirement. (CSF 75-77), Hubbards
denials of facts 75 to 77 again contain evasive responses that do not
support his denials. In response to Certified's assertion in fact 75 that
it gave leeway to Luttrell while determining whether he was disabled,
Hubbard asserts that Certified never found that Luttrell was disabled and
thus entitled to a permanent accommodation. In response to Certified's
assertion in fact number 77 that after Luttrell had his surgery he was
subject to the same standards as other employees, Hubbard asserts that
Certified does not recognize Luttrell as disabled. Hubbard admits that
after Luttrell returned from medical leave in the spring of 2002 he was
put back on the same standards as other selector/loaders, (CSF 77).
Hubbard complains that Luttrell was not disciplined in certain instances
when he failed to meet requirements. However, given. Luttrell's
condition, it would not be unreasonable for Certified to give him some
extra lee-way. Such an allowance would not necessarily be because of
Luttrell's race, Luttrell's case is clearly a special situation and is
not directly comparable to Hubbard's situation.
In regards to Jesup, Hubbard contends that Jesup, was terminated for
failing to meet production standards, but he was reinstated after he
found out that he was not properly trained. Certified correctly points
out that the record is clear that Jesup was not terminated for failing to
meet production standards. (R HSF 31). Hubbard
admits that Jesup worked in the grocery warehouse and was
terminated for failing to follow procedures rather than for failing to
meet the productivity standards. (CSF 81). Hubbards denial is improper as
he cites broadly to en entire exhibit and does not specify the pertinent
portion that would support his denial. Jesup worked in a different
warehouse than Hubbard and under a different supervisor and manager than
In his answer to Certified's motion for summary judgment Hubbard also
claims that Tom Cronin, Chris Walsh, Jason Pepersiki, Darryl Kaczmarek,
and Noel Waitkus were similarly situated white employees that suffered
work related injuries that were excused from work for the remainder of
the day and were not discharged. Certified acknowledges that a worker
will not receive a disciplinary step if his productivity is limited
because he worked with an injury. However, Hubbard admits that after 2000
there was not one instance when one of the employees other than Luttrell
worked more than two hours, did not make the productivity standard, was
injured, and did not receive a disciplinary step. (CSF 70), Also, the
record is clear that when an employee was injured and could not finish
his shift, Certified routinely evaluated the portion of his shift that he
worked before the injury and gave a disciplinary step if the mandatory
minimum productivity standard was not met. In this case Hubbard admits
that he worked for four and a half hours before his back
locked up. Therefore, Hubbard has failed to point to a similarly
situated employee outside the protected class that was treated more
Certified presents a legitimate non-discriminatory reason for Hubbard's
termination. Certified contends that Hubbard failed to meet the
productivity standard on August 11, 2002 and moved to the seventh step.
As stated above, once an employer presents a legitimate
non-discriminatory reason for the adverse employment action, the employee
must show that the reason is actually a pretext. Hildebrandt,
347 F.3d at 1030. Hubbard must not only show that the given reason is
untrue but also that the reason is a pretext specifically intended to
allow Certified to discriminate against Hubbard because of his race.
See Venturelli v. ARC Comty, Servs, Inc., 350 F.3d 592, 601
(7th Cir. 2003)(stating that a plaintiff must show that the reason is a
"mere pretext for discrimination,").
Hubbard has not presented any evidence that would lead a reasonable
jury to conclude that Certified terminated his employment because of his
race. Hubbard admits pursuant to Local Rule 56.1 the truthfulness of
Certified's statement of fact number 93 that he "never heard Stejskal, or
any other manager, make any derogatory comments about black employees,"
(CSF 93). In yet another attempt to offer new
allegations to make it appear as though Hubbard has a basis to deny
the fact number 93 Hubbard points to a statement allegedly made by Fred
Simon. Hubbard contends that Simon told him to clean up the urine in the
bathroom, but a reasonable jury could not conclude that the alleged
statements made by Simon were connected to Hubbard's race. Certified
contends in statement of fact number 95 that no other African-American
employees were discriminated against since Hubbard was employed at
Certified. (CSF 95). Hubbard offers nothing more than his baseless
speculation in support of his denial and thus fact number 95 is deemed to
be admitted. In addition Hubbard merely indicated that he is aware of
some other employees that complained about what they perceived as
discrimination, not that they actually suffered discrimination.
Therefore, even if Hubbard could prove a prima facie case he
cannot show that the reason given by Certified for his termination was a
pretext. Therefore, we grant Certified's summary judgment motion on the
Title VII claim.
II. Workers' Compensation Retaliation Claim
The Supreme Court of Illinois has recognized an independent cause of
action based upon a retaliatory discharge for the filing of an IWCA
claim, Borcky v. Maytag Corp., 248 F.3d 691, 695-96 (7th Cir.
2001); Kelsay v. Motorola,
384 N.E.2d 353, 357 (Ill. 1978). To establish a retaliatory discharge
claim under Illinois law, a plaintiff must prove that: " (1) that [he]
was an employee before the injury; (2) that [he] exercised a right
granted by [the Illinois] Workers' Compensation Act; and (3) that [he]
was discharged and that the discharge was causally related to [his]
filing a claim under the Workers' Compensation Act." Borcky, 248
F.3d at 696 (quoting demons v. Mechanical Devices Co.,
704 N.E.2d 403, 406 (Ill. 1998)). Under Illinois law the burden of proof
remains with the plaintiff, but it is not entirely clear whether or not
the McDonnell Douglas burden shifting method applies in
retaliation cases that are litigated in the federal courts. Id.
at 696 n. 5.
Hubbard does not provide sufficient evidence upon which a reasonable
jury could rely in finding that his termination was causally related to
the filing of the TWCA charge. As indicated above, Certified has provided
a reasonable explanation for Hubbard's termination. Also, it was nothing
new for Hubbard to file an IWCA claim and thus there is no particular
reason why the last IWCA claim should provoke a termination. Hubbard does
not properly deny and thereby admits that he has filed twenty-five 1WCA
claims during his employment with Certified. Certified did not terminate
Hubbard after any of the other TWCA claims were filed. Although Hubbard
contends that his termination was in retaliation for his final IWCA
claim, Hubbard admits that he was never otherwise disciplined for being
injured or for
filing IWCA claims. (CSF 100). The fact that there was no causal
connection between Hubbard's final IWCA claim and his termination is
indicated by the lack of evidence showing that Saban or anyone else at
Certified was aware that Hubbard intended to file an IWCA claim when the
decision was made to terminate his employment. In fact Hubbard, by
failing to provide any supporting citation for his denial of Certified's
statement of fact number 101, admits that neither Saban nor Mike Swift
were aware at the time that Hubbard was terminated that Hubbard intended
to file an IWCA claim. Therefore, Hubbard has failed to supply sufficient
evidence upon which a reasonable jury could find in his favor and
conclude that there was a causal connection between his filing of an IWCA
claim and his termination. Thus, we grant Certified's motion for summary
judgment on the IWCA retaliatory discharge claim.
III. Requests for Admissions
We note that Hubbard tries to make much of his request for admissions
and contends that Certified's failure to respond is an admission that
Certified discriminated against Hubbard because he filed IWCA claim and
because he filed his EEOC charge. First of all we are not convinced that
the facts included in Hubbard's requests for admissions are properly
deemed to be admitted by Certified.
Secondly, Hubbard has not brought a Title VII retaliation claim in
the instant action and thus it is immaterial whether or not Certified
retaliated against him because he filed an EEOC charge. Hubbard's
confusion on this matter is further evident by the fact that he argues in
support of a Title VII retaliation claim instead of a discrimination
claim in his motion for summary judgment, while simultaneously arguing in
support of a discrimination claim instead of a retaliation claim in his
answer to Certified's motion. Hubbard has not asserted a Title VII
retaliation claim in his complaint and a summary judgment motion, brought
after the close of discovery, is not the proper juncture to introduce new
claims. Also, even if Hubbard were allowed to bring a Title VII
retaliation claim we would grant Certified's motion for summary judgment
on the claim, Hubbard has not shown that he was meeting the legitimate
expectations of Certified or that similarly situated employees were
treated more favorably, and he has not offered sufficient evidence for a
reasonable jury to conclude that the reason for his termination was a
pretext for retaliation. See Hilt-Dyson v. City of Chicago,
282 F.3d 456, 465 (7th Cir. 2002)(stating analysis for a Title VII
Based on the foregoing analysis, we grant Certified's motion for
summary judgment and deny plaintiff Hubbard's motion for summary
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