The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Darryl Lawrence ("Lawrence" or "Plaintiff") is an African American male who was employed by Jewel Food Stores, Inc. ("Jewel" or "Defendant") as a truck driver for ten years. On January 27, 2003, Jewel discharged Lawrence after he allegedly failed to account to his supervisor's satisfaction for more than four hours of his time during his January 11, 2003 shift. Lawrence brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., contending that Jewel's real reason for discharging him was race.
Jewel now moves for summary judgment on Plaintiff's Title VII claim. Jewel argues (1) that this court lacks jurisdiction to hear Plaintiff's Title VII claim because the collective bargaining agreement between Defendant and Plaintiff's union ("CBA") contains a waiver of Plaintiff's statutory right to a judicial forum for this claim; (2) that Plaintiff cannot establish a prima facie case for race discrimination because he has not identified any similarly-situated non-African American truck driver who was treated more favorably by Jewel; and (3) that Plaintiff cannot establish that the reason Defendant articulates for his termination -- misappropriation of company time -- is a pretext for discrimination.
This Court holds that Plaintiff's union's collective bargaining agreement did not waive his right to pursue a Title VII claim in federal court. As to the merits of Plaintiff's Title VII claim, this Court finds that Plaintiff has not met his burden of showing that a genuine issue of material fact exists that Jewel treated any similarly-situated non-African American truck driver more favorably than Plaintiff or that Jewel's articulated reason for discharging Plaintiff was a pretext for discrimination. Accordingly, Jewel's Motion for Summary Judgment is granted.
Lawrence, an African American male, had roughly a decade of experience*fn1 as a Jewel delivery truck driver before being terminated on January 27, 2003. (Def.'s 56.1 ¶¶ 1, 4.)*fn2 For the duration of his employment, Lawrence operated out of Jewel's distribution warehouse complex in Melrose Park, Illinois, which served as a distribution point for all Jewel grocery stores within a 180-mile radius. (Id. at ¶ 5, 6.)
Throughout his employment with Jewel, Lawrence was a member of the International Brotherhood of Teamsters, Local 710, formerly known as the Chicago Truck Drivers, Helpers and Warehouse Workers Union ("the Union" or "Plaintiff's union"). (Def.'s 56.1 ¶ 7.) On September 16, 1998, the Union and Jewel executed a CBA that governed the terms of Lawrence's and the other unionized truck drivers' employment from April 1, 1998 through Lawrence's termination. (Id. at ¶ 8.) Three provisions of that CBA are important in this case.
Section 3.8 of the CBA sets out a nondiscrimination policy, reading in relevant part: Neither the employer nor the Union shall discriminate against any employee or prospective employee because of race, creed, color, sex, age, national origin, handicap, or union membership. Any alleged violation of this Article shall be processed in accordance with the Grievance and Arbitration procedures contained in this Agreement. (Id. at ¶ 9; CBA § 3.8 at DEF00413-00414.)
The CBA also contains two arbitration clauses. The first is the clause referenced by § 3.8 of the CBA; § 12.1 reads in relevant part, "The Employer shall not discipline nor discharge any employee without just cause. . . . Any employee . . . may request an investigation of his discipline or discharge through the grievance procedure as follows." (Def.'s 56.1 ¶ 9; CBA § 12.1 at DEF00432-00433.) The "procedure as follows" is a standard three-step grievance process: (1) an employee files a grievance to be informally negotiated between a union representative and a Jewel representative, (2) should these parties fail to arrive at an agreeable solution, the grievance is referred to a more formal Joint Grievance Committee made up of several union and Jewel representatives, and (3) if this body is deadlocked, "either the Employer or Union may invoke the arbitration procedure." (Pltf.'s 56.1(b)(3)(B) ¶ 241; CBA §§ 12.1, 12.2(1)(c) at DEF00432-00434.)
The second arbitration clause, which sets out fundamentally the same three-step grievance process, is more general; § 12.2 covers, "[a]ll grievances relating to the interpretation or application of any provision of this [CBA], other than the discipline and discharge of an employee." (Def.'s 56.1 ¶ 9; CBA § 12.2 at DEF00433-00434.) Lawrence acknowledged receiving a union booklet in 1998 or 1999, (Pltf.'s 56.1(b)(3)(B) ¶¶ 28, 31-33; Lawrence Dep., pp. 36-37), and testified that he understood that the Union represented him in dealing with Jewel and that he had the right to file a grievance with the Union for matters affecting his employment. (Pltf.'s 56.1(b)(3)(B) ¶¶ 34, 35; Lawrence Dep., p. 38).
Jewel's Management Structure and Discipline Policy
From late 2000 or early 2001 until January 2005, Steven Coren held the position of Transportation Manager for Jewel's Transportation Department. (Pltf.'s 56.1(b)(3)(B) ¶¶ 6, 9.) Coren had responsibility for the entire Transportation Department, which at the time he assumed the post was comprised of some 360 drivers (including Lawrence), roughly fifty mechanics, forty third-party drivers, a management staff of twenty, and a clerical staff of twelve. (Id. at ¶¶ 7, 8, 10.) Coren testified that while he accepts responsibility for "everything that happens in [the] Transportation [Department]," including disciplinary decisions, (Id. at ¶ 227; Coren Dep., p. 79), he did not make all of them personally. Rather, lower-level, immediate supervisors would handle discipline for minor infractions and might make initial decisions on suspension pending review by himself or one of his superintendents. (Def.'s Response ¶ 227; Coren Dep., pp. 51-52.) Coren testified that although he received copies of every disciplinary memoranda from his superintendents as the Transportation Manager, he is not able to review each disciplinary decision personally. (Def.'s Response ¶ 227; Coren Dep., pp. 77-78.) Coren testified that even when he does personally make a personnel decision -- as he did in Plaintiff's case -- he attempts to get input from other managers. (Coren Dep., p. 79.)
Jewel truck drivers themselves did not directly report to Coren. Instead they reported to dispatch managers, called senior supervisors. (Pltf.'s 56.1(b)(3)(B) ¶ 11, 14.) At the time of Lawrence's termination, Jewel had four senior supervisors, covering three eight-hour shifts. (Id. at ¶¶ 4, 12, 16.) Because the truck drivers started and ended their shifts at all different hours, the shifts of any particular senior supervisor and any particular truck driver were not necessarily congruent. (Id. at ¶ 17.) That is to say, a driver could start his shift reporting to one senior supervisor and end it reporting to another. Because the truck drivers worked different shifts on different days, they also did not always report to the same senior supervisor from day to day. (Id. at ¶¶ 15, 24.) The drivers would report to whichever senior supervisor was on-duty during their shift. (Id. at ¶ 22.)
Lawrence contends that Jewel has a progressive discipline policy in which the first disciplinary response to an infraction by an employee is a verbal warning, followed by a written warning, a one-day suspension, a two-day suspension, a three-day suspension, and indefinite suspension pending review to termination. (Id. at ¶ 201; Lawrence Dep., pp. 40-41.) Jewel, however, contends that while there is a progressive discipline policy, it relates to attendance, vehicle accidents, and other less serious infractions. (Def.'s Response ¶ 201.) Consistent with this testimony, the Jewel Osco manual on Driver Rules of the Road states that the extension or stealing of time while on the job is a terminable offense. (Def.'s Response ¶ 201; Lawrence Dep., Ex. 2.) Although Jewel maintains that it may terminate an employee for misappropriation of company time, it admits that its managers retain the discretion to offer less severe disciplinary action based on case-by-case determinations. (Pltf.'s 56.1(b)(3)(B) ¶¶ 220, 222-26; Ziehlke-Reece Dep., p. 64; Coren Dep., pp.83-85.)
Routing and Tracking Procedures
Jewel uses a load-planning software package called "Trucks" at its warehouse complex. (Def.'s 56.1 ¶ 10.) "Trucks" automatically sorts the incoming inventory orders for the area Jewel store locations and creates delivery routes to be completed by Jewel's warehouse truck drivers during their shifts. (Id.) At the beginning of each shift, drivers select their routes for the day based upon seniority. (Id. at ¶ 11.) Though he does not contest Defendant's assertion that routes are awarded pursuant to seniority, Lawrence asserts that one of the Jewel supervisors, Mike Terlisky, gave him the same route every Saturday. (Pltf.'s 56.1(b)(3)(B) ¶¶ 138, 139;Coren Dep., pp. 100-01.)
After choosing their runs, drivers then receive a computer-generated log or "trip sheet" for each route selected. (Pltf.'s 56.1(b)(3)(B) ¶ 13.) The trip sheet identifies the stores along the driver's route, provides directions, and estimates the mileage to be traveled and the amount of time necessary for the driver to complete each route. (Id.) The computer-generated estimates on the trip sheets automatically build in time for delays of less than six minutes. (Def.'s 56.1 ¶ 16.) Drivers are required to report any delays of more than one half hour to management, and extensive delays must be "called in every half hour after the initial half-hour delay." (Pltf's Response ¶ 14; Lawrence Dep., pp. 72-73.)
Each Jewel truck is equipped with a computer that tracks and records the truck's movements. (Pltf.'s 56.1(b)(3)(B) ¶ 65.) The driver is required to enter into this computer, referred to as the "Cadec system," information concerning his activities during the run, including the time he left the warehouse, arrived at the store location, began unloading, left the store, or crossed a state line. (Id. at ¶ 67.) All information from this Cadec system is stored on a disc which is downloaded by one of the transportation clerks at the end of each shift. (Id. at ¶¶ 75-77; Lawrence Dep., pp. 61-62.) Events of January 11, 2003
On Saturday, January 11, 2003, Lawrence began his shift at 2:00 p.m., and selected three routes for the workday, which according to his trip logs had an estimated total time of completion of approximately eight hours. (Def.'s 56.1 ¶¶ 23, 24; Lawrence Dep., pp. 85-87, Exs. 11, 12.)
Lawrence received his work assignments and his first trip sheet at 2:12 p.m., but he did not leave the warehouse until 3:30 p.m. -- ninety minutes after starting his shift, and seventy-eight minutes after receiving his assignments and trip sheet. (Def.'s 56.1 ¶¶ 25, 26; Lawrence Dep., pp.87-88; Ex. 12.) Lawrence explained that an entry he made for refueling at the end of his trip log should, in fact, have been marked as having occurred in the period between receiving his first assignment and actually leaving the warehouse complex. (Lawrence Dep., pp. 106-07.) The trip sheet for Lawrence's first run estimated a three hour and twenty-five minute completion time from the time he received his route until his return to the warehouse. (Def.'s 56.1 ¶ 28; Lawrence Dep. Ex. 12.) Lawrence returned to the warehouse at 7:20 p.m., recording a thirty minute delay for restacking pallets. (Def.'s 56.1 ¶¶ 28, 29; Lawrence Dep. Ex. 12.) Thus, including the ninety minute delay prior to his departure, it took the Lawrence five hours and eight minutes to complete a run that was estimated to take just three hours and twenty-five minutes.
Lawrence received the trip sheet for his second run at 7:29 p.m. Again, there was a long delay before he finally left at 9:19 p.m., one hour and fifty minutes after receiving his trip sheet. (Def.'s 56.1 ¶ 31; Lawrence Dep., pp. 91-92.) Plaintiff returned to the warehouse at 10:24 p.m. (Def.'s 56.1 ¶ 34; Lawrence Dep., p. 92.) Though no delays were recorded on his trip sheet, Lawrence took two hours and fifty-five minutes to complete this second run, which was estimated to require just one hour and fifty-five minutes. (Def.'s 56.1 ¶¶ 33-34; Lawrence Dep., p. 92, Ex. 12.)
Lawrence received his third trip sheet at 10:37 p.m., but left the warehouse seventy-seven minutes later at 11:54 p.m. (Def.'s 56.1 ¶¶ 36, 37; Lawrence Dep., pp. 98-99.) The estimated time for completion of Lawrence's third run was two hours and thirty-eight minutes, but Lawrence did not return to the warehouse until 3:48 a.m., five hours and eleven minutes after he received the run sheet, and almost four hours after he left. (Def.'s 56.1 ¶¶ 39, 40; Lawrence Dep., p 104, Ex. 12.) This delay, however, included his scheduled one-hour dinner break and possibly another hour of break time due to his extended shift. (Def.'s 56.1 ¶ 40; Lawrence Dep., pp. 103-04.) After returning to the warehouse this third time, Lawrence clocked out of his shift at 5:25 a.m. January 12, 2003 -- fifteen hours and twenty-five minutes after he had started. (Def.'s 56.1 ¶ 41; Lawrence Dep., p. 105.) During the shift, putting aside any recorded or unrecorded delays he may have faced while out on his routes, Lawrence spent almost four and a half hours in the warehouse complex without recording any cause for these in-complex delays. (Def.'s 56.1 ¶ 42; Lawrence Dep., pp. 88-89, 92, 98-99.)
Lawrence made deliveries to the same stores every Saturday, and both he and Supervisor Terlisky were aware of the particular problems and delays attributed to delivering to these stores. (Pltf.'s 56.1(b)(3)(B) ¶ 110, Lawrence Dep., pp. 93-94.) Lawrence cites the downtown location of one store and its proximity to bars, clubs and other nightlife, which made it difficult to get into the small garage during the congestion of the Saturday night. (Pltf.'s 56.1(b)(3)(B) ¶¶ 128-131; Lawrence Dep., pp. 99-100.) For this reason, he claims, he could not try to deliver to the store until after midnight. (Id.) Additionally, Lawrence notes that he was delivering produce, which goes immediately from the truck to the store floor. (Id.) Because produce cannot be moved to the floor while the store is open and customers are there, Lawrence was required to wait until midnight, when the store closed. (Id.) Lawrence states that he did not record these delays on his run sheet because Terlisky was aware that these difficulties would cause delays as they had caused delays for Plaintiff each Saturday he made deliveries to these same stores. (Pltf.'s 56.1(b)(3)(B) ¶ 132; Lawrence Dep., p. 100.) Jewel contends that Lawrence was never excused from the obligation to record the reasons for a delay incurred during his shift. Lawrence admits that neither Mike Terlisky nor any other Jewel supervisor ever told him not to record his reasons for delay because the supervisor was already aware of the cause of the delay. (Def.'s 56.1 ¶ 43; Lawrence Dep., pp. 100-01.)
Lawrence's Disciplinary Record
Lawrence alleges that he has an unblemished work history and was never disciplined before January 16, 2003. (Pltf.'s 56.1(b)(3)(B) ¶ 95.) The record shows two disciplinary memos on Lawrence's record. The first, a written warning, relates to an incident in December 2000 when Lawrence neglected to use his Cadec card while driving a non-delivery truck. (Def.'s Response ¶ 95; Lawrence Dep., Ex. 9.) Although Lawrence acknowledges the incident, he states that he was unaware at the time that he needed ...