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Thorne v. Jewel Food Stores

June 8, 2010


The opinion of the court was delivered by: Wayne R. Andersen District Judge


This case is before the Court on cross-motions for summary judgment by plaintiff Kennedy Thorne ("Thorne" or "Plaintiff") and defendant Jewel Foods, Inc. ("Jewel" or "Defendant"). For the following reasons, Plaintiff's motion is denied, and Defendant's motion is granted.


On February 8, 1988, Jewel hired Thorne to work as a forklift driver in its Dry Grocery Building located in Melrose Park, Illinois. (Def.'s Am. Stmt of Facts ["Def.'s SOF"] ¶¶ 1, 3; Pl.'s Resp. to Def.'s SOF ¶¶ 1, 3). Defendant contends that "[b]etween February 1988 . . . and June 30, 2003 (when Plaintiff filed his first EEOC Charge), Jewel issued fifty-two (52) disciplinary notices to Plaintiff relating to productivity, unsafe work, and failure to follow Company policies and procedures," and that "[f]ifteen (15) of the disciplinary notices . . . related to Plaintiff's failure to properly swipe the time clock." (Def.'s SOF ¶¶ 5, 6). In Thorne's response to these statements of fact, he states that he "[d]isagrees and objects with these write ups," that "they have no merit to the tier (sic) of Facts," and that his "personnel file has been compromised." (Pl.'s Resp. to Def.'s SOF ¶¶ 5, 6).

Plaintiff filed two EEOC Charges in 2003. He filed EEOC Charge No. 210-2003-33683 on June 30, 2003, alleging that Jewel discriminated against him on the basis of his race because a less senior Caucasian associate was given an "approved volume" day off. (Def.'s SOF ¶ 7). Plaintiff filed EEOC Charge No. 210-2004-00011 on October 1, 2003, alleging that Jewel retaliated against him for his June 30 Charge by failing to give him a preferred job assignment. (Def.'s SOF ¶ 8). Both of the aforementioned charges were dismissed by the EEOC, and Thorne received a right to sue letter for each charge. (Def.'s SOF ¶¶ 7, 8; Pl.'s Resp. to Def.'s SOF ¶¶ 7, 8). The parties dispute whether Thorne's supervisors and managers were aware that Thorne had filed the 2003 Charges. (Def.'s SOF ¶ 9; Pl.'s Resp. to Def.'s SOF ¶ 9). Plaintiff indicates that he also filed a third EEOC Charge, No. 440-2006-90226, which Defendant does not dispute. (Pl.'s Second Summ. J. Request at 2; Def.'s Resp. to Pl.'s Second Summ. J. Request at 3).

In October 2003, Jewel unilaterally issued the Melrose Park Distribution Center Policy and Procedure Manual (the "Manual"), containing Jewel's harassment and discrimination policies, setting forth internal complaint procedures, explaining certain rules regarding "swiping" in and out at the beginning and end of work days and meal periods, and establishing new progressive discipline policies. (Def.'s SOF ¶¶ 11-13; Pl.'s Resp. to Def.'s SOF ¶11-13). The relevant discipline policies were as follows:

A. The 5 STEP Discipline Process for Productivity, which applies only when an associate's daily productivity is "less than 95% but more than 70% of [the] engineered standard.

B. The 5 STEP Disciplinary Process [for] Unsatisfactory Employment, which applies, among other circumstances, upon: (1) "failure to follow established work process;" and (2) "failure to swipe in and out from work at start of day, start of authorized meal period, end of authorized meal period, or end of workday;"

C. The 2 STEP Disciplinary Process for More Serious Employment Issues, which applies, among other things, to gross negligence; and

D. The 1 STEP Disciplinary Process for Most Serious Employment Issues, which applies, among other things, to falsification of company documents and "profane, abusive, physically threatening, or harassing misconduct."

(Def.'s SOF ¶ 13; Pl.'s Resp. to Def.'s Am. Stmt of Facts ¶13).

Defendant states that between June 30, 2003 (the date of Plaintiff's first EEOC Charge) and July 2005, Jewel issued only four (4) other disciplinary notices to Plaintiff relating to issues other than attendance. (Def.'s SOF ¶ 16). Plaintiff objects to that assertion, claiming that his Personnel file "has been compromised" with "many documents added and some deleted," though it is unclear whether Plaintiff believes the number of disciplinary notices should be higher or lower than that stated by Defendant. (Pl.'s Resp. to Def.'s SOF ¶ 16).

According to Defendant, there were two incidents in 2004 which subjected Plaintiff to immediate termination under the last of the four disciplinary processes set forth above -- one incident in which Plaintiff falsified a company document, and one incident in which Plaintiff made inappropriate and threatening statements to supervisors and a manager. (Def.'s SOF ¶¶14, 15). Defendant states that, in both instances, Jewel decided to apply less severe consequences, first giving Plaintiff a one-day suspension, and then allowing Plaintiff to work under the terms of a "Conditional Employment" letter. Id. Both decisions were approved by John Yasak, Director of Distribution, and Kevin Durkin, Manager. Id. Plaintiff denies that he falsified company documents or threatened anyone. (Pl.'s Resp. to Def.'s SOF ¶¶ 14, 15).

In 2005, Plaintiff joined the Dry Grocery Building safety committee, and various members of this committee, including Plaintiff, raised concerns about certain safety issues. (Def.'s SOF ¶¶ 17, 18).

On August 9, 2005, Plaintiff received a verbal warning from Jewel Supervisor Dermot Ryan ("Ryan") because he took a 36 minute lunch, and this constituted Step 1 in the 5 STEP Disciplinary Process [for] Unsatisfactory Employment (the "5-Step Process"). (Def.'s SOF ¶ 19, Ex. 15 ¶3; Pl.'s Resp. to Def.'s SOF ¶ 19). Plaintiff contends that the August 9 verbal warning was "thrown out," though the only evidence he offers in support of this assertion is to repeat the statement that his "Personnel File has been compromised." (Def.'s SOF ¶20; Pl.'s Resp. to Def.'s SOF ¶ 20).

On September 16, 2005, Plaintiff used an improper code in his forklift computer, which resulted in a first written warning by Jewel Supervisor Joe Borawski ("Borawski"), constituting Step 2 in the 5-Step Process. (Def.'s SOF ¶ 21). In Plaintiff's deposition, he testified that he believed the supervisor who issued this written warning did so not because of Plaintiff's race or 2003 EEOC Charges, but because the improper code made Jewel look less productive. (Def.'s SOF ¶ 21, Ex. 3 pp. 327:2-22). Plaintiff does not dispute this point. (Pl.'s Resp. to Def.'s SOF ¶ 21).

On November 10, 2005, Plaintiff received a second written warning from Ryan for taking a 40 minute lunch on November 9, 2005, constituting Step 3 in the aforementioned 5-Step Process. (Def.'s SOF ¶ 23). Plaintiff maintains that he punched in and out for lunch properly. (Pl.'s Resp. to Def.'s SOF ¶ 23).

On February 9, 2006, Plaintiff received a one-day suspension warning because he filed to swipe in after lunch on February 8, 2006, which constituted Step 4 of the 5-Step Process. (Def.'s SOF ¶ 24). Plaintiff filed a grievance in relation to this incident on February 13 or 17, 2006, pursuant to the collective bargaining agreement. (Def.'s SOF ¶ 26; Pl.'s Resp. to Def.'s SOF ¶ 24, 26). On May 10, 2006, Plaintiff, Local 710, and Jewel held a hearing relating to this grievance, but were unable to resolve it. (Def.'s SOF ¶ 26; Pl.'s Resp. to Def.'s SOF ¶ 26). Plaintiff contends that his one-day suspension never occurred, meaning that the fourth step in the 5-Step Process was never actually fulfilled. (Pl.'s Resp. to Def.'s SOF ¶ 24).

On May 9, 2006, Plaintiff failed to swipe out for lunch, a violation constituting Step 5 of the 5-Step Process, subjecting Plaintiff to discharge. (Def.'s SOF ¶ 27). Plaintiff does not dispute that he failed to swipe out for lunch on May 9, 2006. (Pl.'s Resp. to Def.'s SOF ¶ 27).

On May 19, 2006, Jewel, Local 710 and Plaintiff met to discuss Plaintiff's Step 5 violation. (Def.'s SOF ¶ 30; Pl.'s Resp. to Def.'s SOF 30). During that meeting, Plaintiff was advised that if he withdrew his Step 4 grievance, he would not be discharged based on the Step 5 violation, but instead would drop back down to Step 4. (Def.'s SOF ¶¶ 30). Plaintiff contends that he was simply told "drop your grievance or your (sic) fired (terminated)," but he was not informed that dropping the grievance would allow him to drop back to Step 4. (Pl.'s Resp. to Def.'s SOF ¶ 30, 33). No resolution was reached, so Plaintiff's employment was terminated effective May 19, 2006, pursuant to the 5-Step Process. (Def.'s SOF ¶ 32, 33; Pl.'s Resp. to Def.'s SOF ¶ 33).

Thorne initiated this lawsuit on April 24, 2007. He filed a Third Amended Complaint on January 13, 2009. In the Third Amended Complaint, Plaintiff not only alludes to the disciplinary process and eventual discharge outlined above, but also mentioned a variety of other actions allegedly taken against him by Jewel, including, among other things, denial of a right to choose certain assignments, issuance of verbal warnings, harassment, threats, and false accusations. (Pl.'s Third Am. Compl. ¶¶ 7-9). The Third Amended Complaint contains four counts: (1) retaliation under Title VII and § 1981, (2) discrimination under Title VII and § 1981, (3) violation of the Illinois Human Rights Act, and (4) retaliatory discharge under Illinois common law. (Third Am. Compl., Dkt. No. 53). On December 18, 2010, Plaintiff and Defendant filed cross-motions for summary judgment, with Plaintiff's motion titled "Plaintiffs Second Summary Judgment Request." (Dkt. Nos. 151, 154).

We note, as an initial matter, that there are several problems with the documents submitted by Plaintiff in connection with his Second Summary Judgment Request and in response to Defendant's Motion for Summary Judgment. Not only did Plaintiff fail to comply with the requirements set forth in Local Rule 56.1, but much of what he wrote is unintelligible, with incomplete sentences, disjointed allegations and unclear citations. Moreover, numerous documents on which Plaintiff seems to rely were not included with his filings. Defendant notes that these circumstances have made it quite difficult for Jewel to respond. (Def.'s Resp. to Pl.'s Second Summ. J. Request at 1). The court has also had difficulty trying to identify and understand Plaintiff's arguments and assertions. It would not have been improper for the court to strike Plaintiff's motion and grant Defendant's motion on these grounds alone. See, e.g., Greer v. Board of Educ. of City of Chicago, Ill., 267 F.3d 723, 727 (7th Cir. 2001). Nevertheless, based on the premise that courts are to liberally construe the pleadings of individuals who proceed pro se, the court studied and considered all filings submitted by the parties to come to the conclusions reached in this opinion.


Summary judgment is proper when "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). A genuine issue of material fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 277, 248 (1986). Summary judgment is appropriate when the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex v. Catrett, 477 U.S. 317, 322 (1986). The existence of a factual dispute is not sufficient to defeat a summary judgment motion; instead, the nonmoving party must present definite, competent evidence to rebut the motion for summary judgment. See Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004). In reaching its holding, the court will consider the evidence in a light most favorable to the nonmoving party and draw all reasonable inferences in its favor. See Anderson, 477 U.S. at 255.


We address each of the four counts set forth in Plaintiff's Third ...

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