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Jason Hawk, Joseph Jones, and Tilton Walker, Jr v. Allied Waste Transportation

August 28, 2012

JASON HAWK, JOSEPH JONES, AND TILTON WALKER, JR., PLAINTIFFS,
v.
ALLIED WASTE TRANSPORTATION, INC., DEFENDANT.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiffs Jason Hawk ("Hawk"), Joseph Jones ("Jones") and Tilton Walker, Jr. ("Walker") filed against Allied Waste Transportation, Inc. ("Allied") a complaint alleging that Allied discriminated against them on the basis of their race in violation of 42 U.S.C. § 1981. The parties filed a stipulation to dismiss the claims of plaintiffs Hawk and Tilton. Defendant has filed a motion for summary judgment with respect to Jones's claims. For the reasons set forth below, the Court grants defendant's motion for summary judgment.

I. Background

Local Rule 56.1 outlines the requirements for the introduction of facts parties would like considered in connection with a motion for summary judgment. The Court enforces Local Rule 56.1 strictly. Facts that are argued but do not conform with the rule are not considered by the Court. For example, facts included in a party's brief but not in its statement of facts are not considered by the Court because to do so would rob the other party of the opportunity to show that such facts are disputed. Where one party supports a fact with admissible evidence and the other party fails to controvert the fact with citation to admissible evidence, the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). This does not, however, absolve the party putting forth the fact of its duty to support the fact with admissible evidence. See Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir. 2012). Asserted "facts" not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court.

In this case, plaintiff failed to file a response to defendant's motion for summary judgment by the Court's deadline (which the Court had already extended once on plaintiff's motion).*fn1 Because plaintiff did not file a response and, therefore, did not controvert defendant's statement of facts with record citations, the Court deems defendant's facts admitted to the extent they are supported by the record. The Court has carefully reviewed defendant's statement of facts and has deemed admitted only those facts supported by evidence in the record. The following facts are undisputed.

Plaintiff Jones worked as a commercial driver for Allied from June 1999 until Allied terminated his employment on December 15, 2006. Allied provides waste collection, recycling and disposal services to commercial customers in Chicago. The terms and condition of the commercial drivers' employment with Allied are subject to a collective bargaining agreement. The collective bargaining agreement provides, among other things, that Allied may discharge employees only for just cause.

During the relevant time period, Allied maintained work and safety policies and procedures. As part of its work rules, Allied informed its employees that "[d]ishonesty regarding any aspect of your employment or Company business" and "[v]violation of any Company policy, work rule or procedure" could result in the termination of employment. Allied's Safety Handbook informed employees that Allied would "initiate disciplinary action up to and including immediate discharge for "[d]efrauding the Company in any manner," for "[d]ishonesty or falsification of any Company record or document," and/or for "falsify[ing] time records or time sheets." Allied also has rules governing cell phone use. Allied prohibits the use of personal cell phones in company trucks. Allied allows the use of company phones "for business related purposes when safe to do so and on a limited basis while driving." Allied prohibits, however, drivers from using cell phones "while backing, performing difficult maneuvers or container pickups."

A number of incidents that occurred over the course of Jones's employment with Allied are at issue in this case. For example, Allied issued Jones a written warning in August 1999 for causing a preventable accident. In August 2000, Allied issued Jones a written warning for failing to turn off a battery-disconnect switch. In September 2001, Allied issued Jones a written warning for striking an air conditioning unit (presumably with a truck, but that is not clear from the record). In April 2002, Allied issued a written warning, because Jones failed to attend a mandatory training session. Jones missed the mandatory training session again in April 2004. In October 2004, Allied issued Jones a written warning for another preventable accident.

At some point during 2004, Jones went on vacation. During his absence, a substitute driver drove his route. The substitute was able to finish Jones's route in less time than it normally took Jones.

In late 2004, Jones's truck route changed. At Allied, drivers are generally assigned to a particular route. To be assigned to a different route, a driver must bid on open routes, which are assigned by seniority. In late 2004, Supervisor David Meyer informed Jones that route 415, which Jones had driven during the entirety of his employment with Allied, was going to be broken up and distributed to other drivers with routes in the area. This left Jones free to bid on another route. Jones bid on route 201, which he was given.

One thing about route 201 came as a surprise to Jones. Before he had bid on route 201, an Allied supervisor had told Jones that the truck assigned to route 201 was going to be replaced with a new truck, but that did not happen. Jones was disappointed, because he believed the truck assigned to route 201was unsafe to drive. In order for Jones to operate the clutch in the truck assigned to route 201, Jones needed to stand up. This action caused pain in Jones's knee. By about August 2005, Jones took a leave of absence due to knee pain. When he returned, he was given a different truck for route 201.

During Jones's time at Allied, his supervisors never made any derogatory comments or statements about race to him. Once, though, in 2005, Rodney Huguely ("Huguely") asked Jones whether he hurt himself playing basketball. Jones asked why Huguely thought he played basketball. Huguely responded, "Don't all you guys?"

In January 2006, Jones filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Jones alleged that Allied discriminated against him on the basis of his race. Before he filed a charge of discrimination, Jones had not complained about discrimination to anyone at Allied, because he wanted the charge to be a surprise. In March or April of 2006, Jim Woods ("Woods") (who was, at the time, Allied's Commercial Department Manager), called Jones into his office. Woods told Jones, "Let's move forward past this discrimination." Woods asked Jones what he wanted and suggested a new route or a new truck. Jones replied that they needed to go backwards before they could go forward. Jones testified that Woods threatened to terminate his employment if Jones continued to pursue his EEOC charge.

Jones had attendance problems over the years. Allied issued Jones written warnings on multiple occasions (including August 2003, July 2004, October 2004, May 2005, and March 2006) for being late and/or absent. Jones suspected the last one--in March 2006--might have been in retaliation for his having filed a charge of discrimination. Jones filed a grievance with respect to the March 2006 violation. The grievance was sustained, because Allied had erred in its calculation of Jones's absences.

Jones was given a written warning again on August 4, 2006. This time, Allied issued a written warning to Jones for unsafe lifting.

During his time at Allied, Jones reported to various supervisors. During his last year with Allied, Jones reported to supervisors William Baker and Dave Heyboer ("Heyboer"). Heyboer is white. Jones believes he was harassed in that Heyboer "always tried to run [him] real hard." Jones does not know how Heyboer treated employees who were not black. Another way in which Jones believes he was harassed is that he was once sent to pick up trash in the parking lot while two white drivers were allowed to stay inside with "something nice and cushy to do."

Allied terminated Jones's employment on December 15, 2006, based on events that happened on December 14, 2006. On December 14, 2006, Jones was a witness for a former co-worker at the former co-worker's unemployment compensation hearing. That day, Jones began his shift at 4:00 a.m., and he left the Allied yard to begin his route at 4:30 a.m. At 8:00 a.m., Jones received a telephone call from the unemployment compensation ...


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