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HUBBARD v. CERTIFIED GROCERS MIDWEST

March 16, 2004.

LATROY HUBBARD, Plaintiff
v.
CERTIFIED GROCERS MIDWEST, INC, Defendant



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

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.

BACKGROUND

  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 Page 2 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 Page 3 retaliatory discharge because he filed an IWCA claim (Count II). Both Hubbard and Certified have moved for summary judgment.

  LEGAL STANDARD

  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. Page 4 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).

  DISCUSSION

  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 Page 5 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. Id.

  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 Page 6 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. ...


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