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Hendrix v. Blager Concrete Co.

May 27, 2010

JOHN H. HENDRIX, PLAINTIFF,
v.
BLAGER CONCRETE CO., AND MCLEAN COUNTY READY MIX CO., DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

This case is before the court for ruling on a Motion for Summary Judgment (#41) filed by Defendant, Blager Concrete Co., and a pro se Motion for Summary Judgment (#43) filed by Plaintiff, John Hendrix. This court has carefully reviewed the arguments of the parties and the documents provided. Following this careful and thorough review, this court concludes that Plaintiff did not file a timely charge of discrimination. Accordingly, Defendant's Motion for Summary Judgment (#41) is GRANTED and Plaintiff's Motion for Summary Judgment (#43) is DENIED.

FACTS

In the spring of 2004, Defendant entered into an employment agreement with Plaintiff, whereby Plaintiff would operate a concrete truck. All concrete trucks owned and operated by Defendant have air brakes. In order to operate the concrete trucks, the truck driver must have a Commercial Driver's License with an air brake qualification.

In March 2005, Defendant loaned two trucks and drivers to the McLean County Asphalt Company (McLean Asphalt). Plaintiff, who is African American, was one of the drivers loaned to McLean Asphalt. The other driver was not a member of a racial minority. Both Plaintiff and the other loaned driver received a citation for operating an overweight vehicle. Upon returning in the evening to Defendant's office, Plaintiff and the other driver presented the overweight citations to David Blager (Blager), Defendant's Vice President. According to Defendant, it refused to pay both overweight vehicle citations on the basis that the citations were received due to driver error. Blager stated in his affidavit that Defendant has not paid an overweight vehicle citation for any concrete truck driver when the concrete truck and driver have been loaned to another concrete company. Plaintiff did not pay for the overweight vehicle citation he received.

In his affidavit, Plaintiff stated that he thought Defendant and McLean Asphalt were going to take care of the citation. He stated that, at some unspecified time, he was arrested for the overweight citation which had not been paid. Plaintiff stated that he informed his union representative of this matter and was then told that Defendant was not going to pay the ticket because it was driver fault.

At some point prior to October 27, 2007, Plaintiff's license was suspended because of his failure to pay the overweight citation. On October 27, 2007, Plaintiff took the Commercial Driver's License examination and failed a portion of the examination, specifically the air brake qualification. On November 2, 2007, Blager informed Plaintiff that he was required to have a valid Commercial Driver's License with an air brake qualification in order to drive trucks. Blager told Plaintiff that, if he was unable to produce a valid Commercial Driver's License with an air brake qualification by December 5, 2007, his employment with Defendant would be terminated. Plaintiff took the examination on December 4, 2007, and did not pass. His employment was terminated on December 5, 2007. According to Plaintiff, he did pass the examination on December 11, 2007, but Defendant did not allow him to return to work.

PROCEDURAL HISTORY

On April 8, 2008, Plaintiff filed a charge of discrimination against Defendant with the Illinois Department of Human Rights (IDHR) and the Equal Employment Opportunity Commission (EEOC). Plaintiff stated that he was discharged by Defendant on December 5, 2007, because of his race and age, 52 years old. On June 18, 2008, the EEOC sent Plaintiff a Dismissal and Notice of Rights, which stated that the EEOC was "unable to conclude that the information obtained establishes violations of the statutes." The Notice stated that a lawsuit must be filed within 90 days of Plaintiff's receipt of the Notice. Plaintiff did not file a lawsuit within 90 days of receiving the Notice.

On October 7, 2008, Plaintiff filed another charge of discrimination with the IDHR and the EEOC. He alleged that, during his employment with Defendant, he "was subjected to racial harassment and different terms and conditions of employment." He also alleged retaliation and age discrimination. On January 8, 2009, the EEOC sent Plaintiff a Dismissal and Notice of Rights. The EEOC again stated that it was unable to conclude that the information obtained established a violation of the statutes. The Notice also stated that a lawsuit must be filed within 90 days of Plaintiff's receipt of the Notice.

On February 2, 2009, Plaintiff filed his pro se Complaint (#4) in this court against Defendant, McLean Asphalt and Teamsters Local 26 pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. Plaintiff alleged that he was fired by Defendant because of an overweight violation. Plaintiff alleged that Defendant did not pay for his overweight ticket and he lost his Commercial Driver's License. Plaintiff alleged Defendant paid tickets for white drivers. Plaintiff also alleged that his union did not pursue the matter on his behalf.

Magistrate Judge David G. Bernthal issued three Reports and Recommendations (#29, #30, #32) in this case. On May 20, 2009, this court entered an Order (#33) which accepted two of Judge Bernthal's Reports and Recommendations. This court dismissed Teamsters Local 26 as a defendant because Plaintiff did not include the union as a Respondent in the charges of discrimination he filed. This court also agreed with Judge Bernthal that Plaintiff's claim that he was terminated because of race discrimination had to be dismissed. Plaintiff's charge of discrimination alleging that his termination was based upon race discrimination was dismissed on June 18, 2008, and Plaintiff did not file a complaint related to this conduct within 90 days of receiving the Dismissal and Notice of Rights. This court further agreed that any claims related to racial harassment, retaliation and age discrimination had to be dismissed. These claims were included in Plaintiff's second charge of discrimination and Plaintiff's pro se Complaint was filed within 90 days of the dismissal of his second charge of discrimination. However, Plaintiff's pro se complaint did not include any allegations of racial harassment, retaliation and age discrimination. Therefore, this court ruled that the only claim in Plaintiff's pro se Complaint (#4) against Defendant that remained pending was the claim that Plaintiff was subject to different terms and conditions of employment based on race. This court agreed with Judge Bernthal that this claim was included in Plaintiff's second charge of discrimination and pro se Complaint.

On June 3, 2009, this court entered an Order (#35) and accepted Judge Bernthal's third Report and Recommendation. This court dismissed McLean Asphalt as a defendant because it was not named as a Respondent in Plaintiff's charges of discrimination.

On March 10, 2010, Defendant filed a Motion for Summary Judgment (#41). Defendant argued that it was entitled to summary judgment because Plaintiff did not file a timely charge of discrimination regarding Plaintiff's claim that Defendant discriminated against him because it did not pay his ticket but paid for tickets for white drivers. Defendant also argued that Plaintiff could not establish a prima facie case of discrimination ...


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