United States District Court, N.D. Illinois, Eastern Division
December 1, 2004.
MARK L. DANIELS, Plaintiff,
UNITED PARCEL SERVICE, INC., Defendant.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Mark Daniels filed a one-count complaint against United Parcel
Service, Inc. ("UPS"), alleging that it discharged him because of
his race in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq. UPS has moved pursuant to
Federal Rule of Civil Procedure 56(c) motion for summary
judgment. For the reasons set forth below, the motion is granted.
In May 2001, Mark Daniels, an African-American, worked for UPS
as a plant engineering mechanic ("PE"). (Def.'s LR 56.1(a) Stmt.
¶¶ 1, 5.) Daniels worked primarily at UPS' Metro Chicago District
in Chicago, Illinois (Id. ¶ 5.)
UPS also has a facility in Hodgkins, Illinois known as the
Chicago Area Consolidated Hub or CACH. (Id. ¶ 9.) If CACH needs
PEs for weekend work, it asks other UPS districts to post
overtime sign-up sheets in their facilities. (Id. ¶ 10.) PEs
who want overtime sign up and CACH is told whom to expect.
A sign-up sheet was posted at the Metro facility seeking PEs to
work at CACH on Sunday, May 27, 2001. (Id. ¶ 11.) Daniels did not sign up. (Id.)
Nonetheless, he says he worked an eight-hour, double-time shift
at CACH on that date. (Id. ¶ 13.)
In June 2001, Daniels asked a UPS supervisor why he had not
been paid for his May 27, 2001 overtime work. (Id. ¶ 14.)
Daniels' time card for that date had two time punches that read
"May 27, 8:15" and "May 27, 17:17." (Id. ¶¶ 17, 20.) Those time
punches were in the format used by the time clocks in the Metro
facility. (Id. ¶ 23.) The CACH time clocks use a
"year-month-date-time" format. (Id.)
On June 21, 2001, PE Manager Bill Beach and Security Supervisor
Dave Nolimal questioned Daniels about his claim that he worked on
May 27, 2001. (Id. ¶ 28.) Daniels submitted a written statement
in which he said, among other things, that he: arrived at the
CACH guard shack between 6:45 and 8:15 a.m., was admitted to the
building by the guard, went to the PE office and received his
work assignment, returned to the PE office at the end of the day
and put his time card in the time card rack, and left CACH
through the guard shack between 5:10 and 5:40 p.m. (Id. ¶ 29;
id., Ex. K, Nolimal Dep., Ex. 1, Daniels Stmt.)
In May 2001, there was only one guard shack, number two,
through which employees without CACH IDs could enter the facility
on weekends. (Id. ¶ 31;*fn2 id., Ex. K, Nolimal Dep.,
Ex. 1, Harris Stmt.) Daniels did not have a CACH ID. (Id. ¶
32.) PE Manager Neal reviewed the security videotapes taken at
guard shack number two during the times that Daniels said he
entered and exited, but he did not see Daniels. (Id. ¶¶ 44-45.)
Neal also reviewed the videotapes taken of the door to the CACH
PE office during the times Daniels said he was there, but Daniels was not on the tapes.
(Id. ¶¶ 46-47.) Moreover, UPS interviewed the PEs who worked at
CACH on Sunday, May 27, 2001, all of whom said they had not seen
Daniels. (Id. ¶ 37.)
In his statement, Daniels said the person in the PE office, who
he assumed was a supervisor and gave him his work assignment, was
a white male in his mid-40s. (Id. ¶ 38.) Donovan Williams, who
is a Black male in his 30s, was the only PE supervisor on duty at
CACH on May 27, 2001. (Id. ¶ 40.) Williams said he did not see
Daniels that day. (Id. ¶ 41.)
On June 22, 2001, Neal terminated Daniels for submitting a
fraudulent time card. (Id. ¶ 49.) The same day, Daniels filed a
grievance challenging his termination. (Id. ¶ 52.)
The first step in the grievance procedure was a June 28, 2000
meeting among Daniels, Labor Manager Gary Landem and Local 701
Business Agent Jon Baker. (Id. ¶ 56.) During the meeting,
Landem told Daniels that if he resigned from UPS, UPS would not
challenge any request he made for unemployment. (Id. ¶ 60.)
Daniels exercised that option and resigned from UPS that day.
(Id. ¶ 61.)
By resigning, Daniels forfeited his right to continue the
grievance process. (Id. ¶ 62.) Had Daniels continued with the
grievance process, he might have won reinstatement to his job.
(Id. ¶ 64.)
Daniels now contends that he was discharged because of his
race, not his conduct.
To prevail on a summary judgment motion, "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, [must] show that there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." FED. R. CIV.
P. 56(c). At this stage, we do not weigh evidence or determine
the truth of the matters asserted. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). We view all evidence and draw all inferences in
favor of the non-moving party. Michas v. Health Cost Controls of
Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Summary judgment
is appropriate only when the record as a whole establishes that
no reasonable jury could find for the non-moving party. Id.
Having no direct evidence of discrimination, Daniels must
comply with the indirect, burden-shifting method of proof
articulated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973), if he is to defeat UPS' motion. Cheek v. Peabody
Coal Co., 97 F.3d 200, 203 (7th Cir. 1996). To do so, Daniels
must first establish a prima facie case of discrimination by
showing that: (1) he is a member of a protected class; (2) he was
meeting UPS' legitimate expectations; (3) he suffered an adverse
employment action; and (4) UPS treated similarly situated
employees outside the protected class more favorably. Id. at
204; Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1035 (7th
If Daniels makes a prima facie case, the burden of production
shifts to UPS to articulate a legitimate, nondiscriminatory
reason for his discharge. Von Zuckerstein v. Argonne Nat'l
Lab., 984 F.2d 1467, 1472 (7th Cir. 1993). If UPS carries its
burden, Daniels must show that the proffered reason is merely a
As an initial matter, UPS argues, there is no evidence to
suggest that Daniels suffered an adverse employment action. An
adverse employment action is one that causes "a materially
adverse change in the terms or conditions of . . . employment."
Spring v. Sheboygan Sch. Dist., 865 F.2d 883, 885 (7th Cir.
1989) (emphasis omitted). "A materially adverse change might be
indicated by a termination of employment, a demotion evidenced by
a decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished material
responsibilities, or other indices that might be unique to a particular situation." Crady v. Liberty
Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993).
Daniels admits that he resigned. (See Pl.'s LR 56.1(b)(3)(A)
Stmt. ¶ 61.) Thus, UPS argues that he cannot satisfy the second
element of the prima facie case.
Daniels contends, however, that he resigned under duress. (See
id.) Because UPS gave him only two choices, resignation or
termination, Daniels says he had no choice but to resign.
Even if we construe Daniels' resignation as a constructive
discharge, as he urges us to do, he would still have to satisfy
the last element of the prima facie case to survive UPS'
motion. That he has not done. Daniels has offered no facts to
suggest that UPS retained any non-Black employee who it believed
had falsified his hours. In fact, it is undisputed that UPS
terminated a non-Black employee, Charles Szachowicz, in October
2001 for that very conduct. (See id. ¶ 68.)
Though both were fired for dishonesty, Daniels argues that
Szachowicz received better treatment because he was "allowed" to
file a grievance, which ultimately resulted in his reinstatement.
It is undisputed, however, that Daniels was also allowed to, and
did, file a grievance contesting his termination. (See id. at
52.) The grievance process ended when Daniels resigned; a result
he should have foreseen, given his asserted familiarity with the
grievance procedure. (See id. ¶¶ 55, 62.) There is no evidence
that UPS discouraged Szachowicz from resigning or otherwise
encouraged him to fight for reinstatement. Absent such evidence,
Daniels has not demonstrated that a similarly situated employee
outside of the protected class received more favorable treatment,
a required element of the prima facie case.
Moreover, even if Daniels had made a prima facie case, his
claim would still be doomed by the dearth of pretext evidence.
UPS' reason for firing Daniels is pretextual if it is "factually
baseless, [was] not the actual motivation for the discharge
. . ., or [is] insufficient to motivate [it]." Testerman v. EDS Technical Prods., Corp., 98 F.3d 297, 303 (7th Cir.
1996). There is nothing in the record to support the inference
that UPS' proffered reason for firing Daniels was pretextual. On
the contrary, the record is filled with undisputed facts that
suggest UPS honestly believed Daniels falsified his hours:
Daniels did not sign up to work at CACH on May 27, 2001 (Pl.'s LR
56.1(b)(3)(A) Stmt. ¶ 11), the time punches on his time card for
that day were in a format that did not match the CACH time clock
(id. ¶¶ 17, 20, 23), the security videotapes from the CACH
facility contradicted Daniels' statement about the times he
entered and exited the facility and the times he visited the PE
office (id. ¶¶ 31-32, 44-47; id., Ex. K, Nolimal Dep., Ex. 1,
Harris Stmt.), the PEs who worked at CACH on Sunday, May 27, 2001
said they did not see Daniels that day (id. ¶ 37) and Donovan
Williams, the only PE supervisor on duty at CACH on May 27, 2001,
said he did not see Daniels that day (id. ¶¶ 40-41). Because
Daniels has no evidence of pretext, his race discrimination claim
would still be dismissed, even if he had made a prima facie
For all of the reasons stated above, there is no genuine issue
of material fact as to Daniels' Title VII claim against UPS, and
UPS is entitled to judgment as a matter of law. UPS' motion for
summary judgment [doc. no. 26] is, therefore, granted. This is a
final and appealable order.