The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
Defendant Restaurant Depot ("Depot") is in the wholesale
restaurant equipment and food service business. In April 2001,
Depot hired Plaintiff Joseph Jackson ("Jackson") as a "hi-lo"
forklift driver. On October 17, 2001, Jackson took off work in
order to respond to a summons to jury duty in Cook County. That
evening, his managers held a mandatory staff meeting for all
employees, which Jackson did not attend. Upon his return, Jackson
was suspended for three days for failing to attend the meeting.
In January 2002, Jackson was sent home for one day without pay
after his manager reported that Jackson was unorganized and
insubordinate. Two months later, Jackson was fired after another
manager reported that Jackson had again failed to keep his area
clean and organized.
Jackson filed suit in federal court alleging that he was the
victim of impermissible discrimination when he was denied
overtime because of his race and that Depot fired him in
retaliation for his complaints of discrimination. Jackson also
complains that Depot violated federal and Illinois jury duty
statutes when it suspended him for failing to attend a staff
meeting that occurred on the same day Jackson was called to jury
service. Depot argues that Jackson cannot claim discriminatory denial of overtime work when he
failed to request overtime but nevertheless worked overtime
during the relevant period; that Jackson cannot establish a
prima facie case of retaliation; and that Jackson cannot avail
himself of the protection of the Illinois statute because he
failed to deliver a copy of his jury summons to Depot before
reporting to jury service. For these reasons, Depot has moved for
summary judgment of Jackson's claims.
Summary judgment is proper if the "pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, 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). See also
Celotex Corp. v. Catrett, 477 U.S. 317, 322-33 (1986). A genuine
issue of material fact exists when there is evidence on the basis
of which a reasonable jury could find in the plaintiff's favor,
allowing for all reasonable inferences drawn in a light most
favorable to the plaintiff. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). Summary judgment is not the time for
credibility determinations or to "choose between competing
inferences." Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1041
(7th Cir. 1993) (citation omitted). However, Jackson must offer
more than "[c]onclusory allegations, unsupported by specific
facts" to establish a genuine issue of material fact. Payne v.
Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citation omitted).
For each element of his case, Jackson must "designate specific
facts showing that there is a genuine issue for trial."
Celotex, 477 U.S. at 324 (internal quotations omitted).
It is difficult to construct a more thorough review of the
facts of this case on the basis of the record before me.
Plaintiff's pro se status entitles him to considerable leeway
in framing his arguments; nonetheless he is required to follow
Local Rule 56.1 in presenting facts in defense of Depot's motion.
For the large part, he has failed to do so, and for the large
part I credit the un-rebutted statements of fact offered by Depot. However, Depot also failed
to support some of the facts offered in its motion and supporting
Local Rule 56.1 statement; for example, Depot consistently cites
to transcripts of Jackson's deposition as evidence, yet the
transcript excerpts attached to its motion are incomplete,
arguably take statements out of context, and on occasion conflict
with the purported statements of fact they supposedly support. I
carefully reviewed the facts offered by both sides and have
ignored those facts lacking adequate support and construed the
facts in Jackson's favor to the extent possible.
Jackson's Claim of Discrimination for Failure to Award
Jackson complains that Depot denied him opportunities to work
overtime from September 2001 to late October 2001, but granted
overtime opportunities to similarly situated employees who were
not African American. Depot argues that Jackson's own testimony
forecloses this complaint, claiming that Jackson admits that he
never asked for overtime and actually refused overtime that was
offered to him. If true, Jackson's claim of discrimination would
be weak indeed. See, e.g., Thomas v. Honeywell Corp., No. 00 C
50022, 2003 U.S. Dist. LEXIS 4948, at *4 (N.D. Ill. Mar. 31,
2003) (suggesting that overtime claim would fail where plaintiff
was offered and worked some overtime); and West v. Maxon Corp.,
No. IP 98-0339-C 2001 U.S. Dist. LEXIS 22228, at *11 (S.D. Ind.
Dec. 10, 2001) (finding that denial of overtime is not an adverse
action when employee admits to turning down overtime
Once again Depot relies on Jackson's deposition as evidence
that Jackson never asked for overtime (Def. Exh. 1 at 140, 144);
never asked for overtime that was denied by his managers (Def.
Exh. 1 at 142); accepted and worked overtime offered by his
managers (Def. Exh. 1 at 135); and rejected other overtime offers (Def. Exh. 1 at 140,
142, 144).*fn1 These pages of Jackson's deposition testimony
establish only that Jackson would not ask for overtime if he
worked beyond his shift, because he did not think his managers
would approve his request and that he asked his managers why
Hispanic employees were awarded overtime when he was not.
Jackson's testimony is simply not the evidence Depot suggests it
There is a better ground on which to dismiss Jackson's claim:
his failure to establish a prima facie case of discrimination.
In the absence of direct evidence of discrimination, a plaintiff
alleging discrimination in violation of Title VII,
42 U.S.C. § 2000(e) et seq., must establish discrimination through the
"indirect method" established in McDonnell Douglas. See Cerutti
v. BASF Corp., 349 F.3d 1055, 1061(7th Cir. 2003). That test
requires Jackson to show that Depot treated other similarly
situated employees outside of his protected class more favorably.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Fatal to Jackson's claim of discrimination is his failure to
offer admissible, comparative evidence of the number and types of
overtime opportunities denied him but offered to similarly
situated employees outside of his protected class. See Conley v.
Village of Bedford Park, 215 F.3d 703, 711-12 (summary judgment
appropriate when plaintiff cannot substantiate allegations that
overtime was denied for discriminatory reasons; plaintiff's
failure to "set forth any specific times that [Defendant] gave
others overtime opportunities, but denied the same to him" in combination with self-serving assertions could not defeat summary
judgment). Jackson's response contains only self-serving,
unsupported allegations of discrimination, such as his claim that
Hispanic workers "would get the overtime over African-Americans."
(Pl. Resp. at 4.) Neither these statements nor the handwritten
documents attached to Jackson's response are sufficient under
Local Rule 56.1 or the Federal Rules of Civil Procedure to avoid
Jackson's Claim of Retaliation
Jackson also claims that Depot first suspended him and then
fired him in retaliation for his complaints about race
discrimination. Jackson alleges that sometime in 2001, Depot
manager Eric Reaves informally approached a group of African
American employees including Jackson and asked if they had
suffered discrimination on account of their race at Depot.
Jackson avers that he and others responded affirmatively, but
gave Reaves no additional feedback. Jackson and other African
American employees later met with Reaves and Jackson's manager,
Andres Trejos, to discuss the allegations of discrimination. At
that meeting Jackson complained of discrimination against African
Americans and favoritism toward Hispanic employees.*fn3
Jackson believes his termination was in retaliation for his complaints
both at the initial, informal gathering and at the meeting where
manager Trejos was present.
Jackson offers no direct evidence that he was disciplined and
fired as a result of his complaints of discrimination. Jackson's
unwavering conviction that his complaints led to his termination
is not direct evidence of retaliation. See Stone v. City of
Indianapolis, 281 F.3d 640, 644 (7th Cir. 2002) (noting that
direct evidence is "evidence that establishes without resort to
inferences from circumstantial evidence"). Nor is the timing of
his discharge, whether five months (as Jackson suggests) or
eleven months (as Depot suggests) after the meeting in which
Jackson allegedly complained of discrimination, direct evidence
of retaliation.*fn4 See id. ("mere temporal proximity
between the filing of the charge of discrimination and the action
alleged to have been taken in retaliation for that filing will
rarely be sufficient in and of itself to create a triable issue"). Most importantly, the decision-makers who
disciplined and fired Jackson in 2002 Chuck Spirk and Dan
Nicholas were not present at the meeting where Jackson
complained of discrimination, and he has presented no evidence
that they knew of this protected activity.
Therefore, to withstand summary judgment of this claim Jackson
must establish that: a) he engaged in a statutorily protected
activity, b) he performed his job according to Depot's legitimate
expectations, c) despite his satisfactory performance he suffered
an adverse employment action, and d) he was treated less
favorably than similarly situated employees who did not engage in
statutorily protected activity. Id. (noting that plaintiffs
seeking to prevent summary judgment of retaliation claims may
resort to an adaptation of the McDonnell Douglas test when they
lack direct evidence of discrimination). See also Williams v.
Waste Mgmt. of Ill. Inc., 361 F.3d 1021, 1031 (7th Cir. 2004)
(identifying the criteria ...