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March 23, 2004.

ARROW CHEVROLET, INC., an Illinois Corporation Defendant

The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge


Plaintiffs, Ronnie Scott, Tommie J, Williams, Jacky Burks, and Derrick Johnson (who later accepted an offer of judgment), have filed a four-count Second Amended Complaint against defendant, Arrow Chevrolet, Inc. ("Arrow"). All of the plaintiffs allege that Arrow discriminated against them because of their race (black) in terms and conditions of employment, by failing la promote them, and by terminating their employment, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count I), and of section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (Count II), Scott also alleges that Arrow retaliated against him for agreeing to support Burks in filing a charge of discrimination against Arrow (Count III). Williams alleges that Arrow retaliated against him after he complained to Arrow's managers and supervisors about racial and religious discrimination (Williams is Muslim) in the terms and conditions of his employment (Count IV). The plaintiffs filed charges with the Equal Employment Opportunity Commission ("EEOC") on August 9, 2000 (Williams), October 12, 2000 (Burks), and October 27, 2000 (Scott) On June 29, 2001, the EEOC issued to all of the Page 2 plaintiffs "Notice of Right to Sue" letters. Before the court is Arrow's Motion for Summary Judgment on all claims. For the reasons stated below, Arrow's motion is granted.


  Summary judgment obviates the need for a trial where 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). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v, Philip Morris inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-599. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the non-moving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court must apply the summary judgment standard with "added rigor" in employment discrimination cases, where intent is the central issue. Kralman v. Illinois Dept. of Veterans' Affairs, 23 F.3d 150, 152 (7th Cir. 1994). Page 3


  Plaintiffs are all African-American males. Arrow is an automobile dealership doing business in Midlothian, Illinois. (Def. L, R. 56.1 ¶ 1, 2.) Phil Pagan ("Fagan") was general manager of Arrow in June and July, 2000. (Pl. Stat. of Add'l Facts ¶ 76,) Employees in the finance department at Arrow are considered managers. (Id. ¶ 13.)

  Arrow allows its salespeople to drive demonstrator vehicles ("demos") from Arrow's inventory. (Def. L.R. 56.1 ¶ 99, 102.) In or around 1999 and 2000, Cavaliers and Trackers were considered low quality demos; Malibus and Luminas were considered "middle-of-the-road" demos; and Monte Carlos and Impalas were considered high-end demos. (Id. ¶ 105.) When determining what model of automobile it would issue to salespeople as demos, Arrow claims that it considers such factors as the availability of the model and the longevity and performance of the salesperson. (Id. ¶ 103, 104,) A salesperson's demo could sometimes be downgraded based on Page 4 inventory and availability. (Id, ¶ 106,) During their employment at Arrow, plaintiffs were issued the following demos:
Burks: Cavalier, Malibu, Lumina, Monte Carlo. Scott: Cavalier, Malibu, Prism, Monte Carlo, Impala. Williams: Cavalier, Malibu, Monte Carlo.
(Id. ¶ 109.)

  The use of demos is subject to the demo rules signed by each salesperson. Each of the plaintiffs drove demos while working for Arrow and signed "Demo Rules" or "Demonstrator Agreements" agreeing to be bound by the demo rules. (Id. ¶ 101.) According to Arrow's company policy, an employee turning in a demo must have it checked in by a manager. The manager and employee then inspect the demo for damage. A demo damage sheet is filled out and signed by the manager and employee. The employee is then charged for any damage, (Id. ¶ 44,) Salespeople are not allowed to have demos while on medical leave. (Id. 1100.)

  A. Jacky Burks

  Burks was first employed at Arrow in September, 1987. (Pl. Stat, of Add'l Facts ¶ 2.) Burks was terminated and later rehired by Arrow several times throughout the years. (Id. ¶ 7.) Burks was most recently re-hired in December, 1997, as a used car salesperson. (Def. L.R, 56.1 ¶ 27.)

  Arrow does not use a time clock to keep track of employees' arrival and departure times. Rather, `If management says an employee is late, [that employee is] considered late." (Pl. Stat. of Add'l Facts ¶ 9.) Burks claims that he has been fined for being late even though he was not late. (Id.) Page 5

  In October, 1999, Burks claims that "all of the white managers at Arrow" decided to fire him. The minority managers, however, refused to vote to fire Burks. Burks called Cary Frank ("Frank"), an owner of Arrow, and informed him that "they were trying to terminate" him. Frank and Burks then participated in a conference call to find out why the management was trying to fire Burks, Jimmy Samhan ("Samhan"), a white manager, claimed Burks was "bad mouthing" the company, Frank asked for a specific example of what Burks had said about the company, but no manager provided an example.*fn2 (Id. ¶ 25.)

  Burks claims that he was denied Saturday morning "spiffs" because the management claims that he had set up his "rat" friends to come in, *fn3 (Pl. Slat, of Add'l Facts ¶ 35,) However, on at least one occasion, Burks won a "King of the Hill" contest and received an $8500 bonus. (Def. L.R, 56.1 ¶ 36.) Burks also claims that he has been passed over for a promotion on multiple occasions by non-black employees including Andy Bellavia, Alien Mahea, "Mogce," Andy Mahares, Kelly Zimmerman, and Mickey Ellison. (PL Stat, of Add'l Facts ¶ 36.) Burks alleges that when he asked Gary Dunn, Burks' supervisor at the time, "what do we have to do to get promoted around here," Dunn replied "be lighter than a paper bag, "*fn4 (Burks Dep. at 122.) Page 6

  In 2000, Burks had surgery on his foot. Burks' doctor gave him a note explaining that Barks should limit his walking and standing and should refrain from exerting long-term pressure on his fool. Burks gave a copy of the note to Jerry Wickman at Arrow. (Id. ¶ 27.) Burks was forced to cut his working time from 50-60 hours per week to 20-30 hours per week. As a result of cutting back on his working hours, Burks' car sales were lower. (Id. ¶ 26.) Burks states in his deposition that he was fired on May 1, 2000. (Burks Dep., at 87.) However, Arrow describes Burks' absence from May to July, 2000, as "medical leave." (Def. L.R, 56.1 ¶ 28.) The record docs not clarify what Burks' official employment status was from May 1 to mid-July, 2000.

  Burks had a second foot surgery in the middle of May, 2000, and was instructed by his doctor that he should not work for six to eight weeks. (Id. ¶ 28.) Before he took this absence, Burks was required to return his demo and have it inspected by Arrow's service department to assess whether any damage had been done to the vehicle. (Pl. Stat. of Add'l Facts ¶ 29.) Burks claims that he followed all the proper procedures when he checked in the demo and that the demo had no damage when he returned it to Arrow. (Id. ¶ 29, 30.) However, Burks' signature does not appear on the demo cheek-in inspection report. (Def. L.R. 56.1 ¶ 42; Def. Ex. F.) Arrow claims that Burks left the demo on the lot without reporting it to anyone. (Id. ¶ 29.) Arrow claims that when it found the car, it had $467.30 in damages from cigarette bums on the driver's side floor, (Id. ¶ 30.)

  When Burks returned from medical leave around July 19, 2000, Fagan presented Burks with a bill for the damage Burks had allegedly done to his previous demo and told Burks that he would be required lo pay for the damage to the old demo before Arrow would issue Burks a new demo, (Id. ¶ 31.) Burks denies that Fagan presented him with a bill for the alleged damage to the Page 7 demo. (Pl. Reap, to Def, L.R, 56.1 ¶ 31.) Arrow claims that Burks refused to pay for the damage and walked out of work. He then called in the next day and stated that he would be in to work as soon as he could get a ride, (Id.) However, Burks did not show up for work that day, (Def. L.R. 56.1132.) Burks called Frank on July 21, 2000, Frank attempted to broker a compromise where Burks would pay $250 for the alleged damage to the demo, but Burks refused. (Id. ¶ 33.) According to Burks, Franks then told him that he did "not like getting between" Burks and Franks' managers and that Burks should "find someplace else to work." (Pl, Stat. of Add'l Facts ¶ 31.) As Burks understood it, this meant that he was fired. (Burks Dep., at 97.) Arrow claims that Frank told Burks that if he could not show up for work he would be fired. When Burks did not show up for work again, Arrow considered his employment terminated, (Def, L.R, 56.1 ¶ 34.)

  Burks filed an EEOC Charge of Discrimination against Arrow on October 12, 2000. In his charge, he stated

I was hired by Respondent in September of 1987. I have been rehired and terminated by Respondent approximately eight times since my date of hire. I was terminated on May 1, 2000, but then allowed to remain employed as I was on medical leave. I was most recently terminated on or about July 22, 2000. During my course of employment at Respondent, I was continuously subjected to racial harassment and different terms and conditions of employment such as paying more for demo damage than the non-Black employees.
I believe that I have been discriminated against because of my race, Black, in violation of Title VII of the Civil Rights Act of 1964, as amended.
In his charge of discrimination, Burks identified December 8, 1999, as the earliest date discrimination took place. Burks admits that he did not ask Scott or Johnson to be a witness in his EEOC charge before he filed the charge. (Burks Dep. II, at 25.) Page 8

  B. Tommie Williams

  Williams was first employed by Arrow in 1988 but quit around 1992. (Def, L.R. 56.1 ¶ 49, 50.) He was rehired in 1997. (Id. ¶ 50.) Williams claims that he was subjected to racial slurs on a daily basis while he worked at Arrow. (Id, ¶ 57.)

  Williams is a Muslim and a member of the Nation of Islam. (Pl. Stat. of Add'l Fads ¶ 48.) While employed at Arrow, Jimmy Samhan, who is also a Muslim, asked Williams to go to Salaam Restaurant, a Muslim restaurant operated by African Americans, and get pork chops. (Id. ¶ 49.) On a different occasion, after seeing Williams with a female Muslim customer wearing traditional Muslim dress, Arrow business manager Bob Williams asked Williams what would happen if he "pulled his dick out and shook it in her face." Williams reported the statement to Fagan. (Id. ¶ 51.)

  Williams claims that he has been passed over for promotion by several white employees. (Id. ¶ 5 2.) In a letter dated February 5, 1999, Williams wrote Fagan asking why five white employees had been promoted to managerial positions ahead of him. (Id. ¶ 46.) In August, 1999, Williams was promoted to sales manager. (Def. L.R. 56.1 ¶ 52,)

  Williams claims that Gus Kay, whose position is not identified, asked him what part of Chicago he lived in prior to assigning him a demo. Kay told Williams that he was only eligible for a certain type of car because of where he lives. (Pl. Stat. of Add'l Facts ¶(54.) From 1999 to 2000, Williams was assigned a Monte Carlo as his demo. (Def. L.R. 56.1 ¶ 58.)

  On Friday, October 28, 1999, Arrow General Manager Bob Hammann ("Hammann") received a complaint from a customer regarding a car deal in which Williams had worked. On October 29, 1999, Hammann questioned Williams about the way the deal worked. The Page 9 conversation escalated into an argument, and Hammann suspended Williams for the day. (Def. L.R, 56.1 ¶ 53.) Williams never worked at Arrow again. Arrow claims Williams quit soon after his argument with Hammann, (Id. ¶ 54.) Williams claims that he was terminated by Frank the following Monday or Tuesday. (Pl. Resp. to Def. L, R. 56.1 ¶ 54.)

  Williams filed an EEOC Charge of Discrimination against Arrow on August 9, 2000. In his charge, he stated

I was employed by the Respondent since January 1988. During my employment I was subjected to racial and religious harassment, I was also subjected to different terms and conditions of employment. I was disciplined on several occasions for allegedly coming in late. On numerous occasions I was denied promotions. On or about July 1999 I made a protected complaint. On or about August 1999 I was promoted. On or about November 1999 I made another protected complaint. On or about December 1999 I was discharged.
I believe that I have been discriminated against because of my race, Black, and religion, Muslim, and retaliated against in ...

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