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October 6, 2005.

CBOCS WEST, INC., Defendant.

The opinion of the court was delivered by: CHARLES KOCORAS, District Judge


This matter comes before the court on the motion of Defendant CBOCS West, Inc. ("Cracker Barrel"), for summary judgment and the motion of Plaintiff Hedrick Humphries to strike the declaration of Kimberly Tramel. For the reasons set forth below, the motion for summary judgment is granted and the motion to strike is denied as moot.


  Humphries is a former employee of Cracker Barrel at its restaurant and retail store in Bradley, Illinois. He is African-American. During the three years that Humphries worked for Cracker Barrel, he was never demoted, nor was his pay ever reduced. He was promoted at least once. Over the last eight months of his employment, Humphries received nine written or verbal warnings with respect to his work performance that were memorialized in written Employee Counseling Reports, or "ECRs." Twice these ECRs informed Humphries that potential disciplinary action included termination. The three penultimate ECRs, issued in early September 2001, stated that they were a "final" warning.

  In late November 2001, Humphries informed William Christensen, the district manager for the Bradley restaurant and store, that he felt he and another African-American employee named Venis Green were being treated in a discriminatory manner because of their race.

  On the morning of December 3, Joe Stinnett, another associate manager, reported finding the store safe unlocked and slightly open. Cracker Barrel policy requires that an associate manager who closes a store in the evening is responsible for making sure that the store safe is closed and locked before leaving for the night. Humphries was the associate manager on duty the night of December 2. His employment was terminated on December 5. According to Cracker Barrel, this termination occurred because Humphries was on duty the night before the safe was found open; according to Humphries, the termination was the result of Cracker Barrel's desire to retaliate against him for his November comments to Christensen. Our prior opinions detailed the procedural morass that ensued after Humphries' termination. It is sufficient to note that, as the case now stands, the only cause of action asserted is founded in 42 U.S.C. § 1981. According to Humphries, Cracker Barrel interfered with his rights to make and enforce contracts to the same extent enjoyed by white citizens. Cracker Barrel moves for summary judgment in its favor on his claims.


  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 that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548 (1986). The burden then shifts to the nonmoving party to show through specific evidence that a triable issue of fact remains on issues on which the nonmovant bears the burden of proof at trial. Id. The nonmovant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings and support its contentions with proper documentary evidence. Id. The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986).


  Though Humphries originally sued under both Title VII and 42 U.S.C. § 1981, we dismissed the Title VII claims on November 1, 2004. Thus, the motion and this opinion focus solely on Humphries' § 1981 claim.*fn1

  To avoid summary judgment of a § 1981 claim arising from an employment relationship, an employee must show that he or she undertook the statutorily protected action of making or enforcing a contract, an action by the employer that worked to the detriment of the employee, and a causal connection flowing from the former to the latter. See Herron v. DaimlerChrysler Corp., 388 F.3d 293, 301 (7th Cir. 2004). The third element can be established either directly or indirectly. See Davis v. Con-Way Transportation Central Express, Inc., 368 F.3d 776, 783 (7th Cir. 2004). The direct method allows a trier of fact to find discriminatory conduct without inference or presumption. See id. The evidence necessary to allow a plaintiff to employ the direct method can consist of either an employer's admission that the challenged action was the product of unlawful discrimination or a combination of events that directly indicates that discrimination was afoot. See id. Humphries contends that he can proceed under this method under the second route. He asserts that the combination of the short period of time that elapsed between the time that he complained about Cracker Barrel's treatment of Green and him and Cracker Barrel's inaction with respect to his complaints thereafter directly establish a discriminatory motive. Despite Humphries' arguments, this is far from the "convincing mosaic" necessary to point directly to unlawful motivations behind Cracker Barrel's action. Troupe v. May Dep't. Stores., 20 F.3d 734, 737 (7th Cir. 1994). At best, this evidence describes a few actions concentrated at the time of termination, not the abrupt about-face or pervasive pattern held sufficient in other cases. See Lang v. Ill. Dep't of Child and Family Servs., 361 F.3d 416, 419-21 (7th Cir. 2003); Sitar v. Indiana Dep't of Transportation, 344 F.3d 720, 728-29 (7th Cir. 2003).

  The second manner by which discrimination can be shown, the indirect method, consists of a three-step process. See Gonzalez v. Ingersoll Mill. Mach. Co., 133 F.3d 1025, 1032 (7th Cir. 1998). First, the plaintiff must demonstrate a prima facie case for discrimination. Id. To make out his prima facie case, Humphries must show that he is a member of a racial minority, that he was meeting Cracker Barrel's legitimate expectations with respect to his job duties, that he suffered an adverse action, and that similarly situated white employees were treated more favorably than he. See id. at 1032, 1035. If Humphries can demonstrate each of these elements, a presumption of unlawful discrimination arises, which Cracker Barrel must counter with a lawful reason for Humphries' termination. Id. at 1032. If Cracker Barrel does so, Humphries must then show that the proffered reason is actually a pretext for discrimination. Id.

  Cracker Barrel challenges Humphries' showing on the second and fourth elements of his prima facie case. With respect to the second, whether Humphries was performing satisfactorily, the parties' arguments clearly indicate that material issues of fact exist. The fourth, however, clearly falls in Cracker Barrel's favor.

  Humphries contends that Ken Dowd and Joseph Stinnett, who are both white and who held supervisory positions, provide the necessary points of comparison. According to Humphries, both of these employees were cited for not meeting Cracker Barrel's standards with respect to safeguarding money and other assets of the company. To be similarly situated, two employees must have the same supervisor, engage in the same conduct, have the same qualifications, and have no legitimately differentiating characteristics that would account for an employer's differing treatment. See Ineichen v. Ameritech, 410 F.3d 956, 960-61 (7th Cir. 2005). Humphries contends that Dowd and Stinnett engaged in conduct similar to that for which he was terminated, but they kept their jobs. However, he provides no other information about them that would be germane to the inquiry. In other words, he provides evidence that Dowd and Stinnett are comparable to him in one material respect, but by no means in all material respects. See Sartor v. Spherion Corp., 388 F.3d 275, 279 (7th Cir. 2004). The latter is required to stave off summary judgment. Because Humphries ...

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