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Marcus Morgan v. Svt

September 13, 2012


The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown


Plaintiff Marcus Morgan ("Morgan") brought this action against defendant SVT, LLC, d/b/a Strack & Van Til Super Market, Inc., (collectively, "Strack") under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Compl.) [Dkt 1.] Morgan, who was formerly employed by Strack, alleges that he was terminated based on race (African-American), and seeks reinstatement to his former position, or in the alternative, an award of back pay and employment benefits. (Compl. at 6-7.) Federal question jurisdiction exists in this case under 29 U.S.C. § 1131. The parties consented to the jurisdiction of a magistrate judge [dkt 12], and the case was assigned to this court pursuant to 28 U.S.C. § 636(c) and Local Rule 73.1 [dkt 14]. Before the court is Strack's Motion for Summary Judgment. [Dkt 32.] For the reasons stated below, Strack's motion is granted.


SVT, LLC is an Indiana limited liability company that operates a chain of grocery stores in Indiana and Illinois under the name of Strack. (Answer ¶ 3.) [Dkt 9.] On June 6, 2007, Strack hired Morgan to work as a part-time security officer at its Elston Avenue store in Chicago, Illinois. (Pl.'s LR Resp. ¶¶ 1, 4, 7-9.) Morgan had previously worked for ten years as a security officer at the same store when it was operated by Cub Foods, but had left his job there to work at a Home Depot home improvement center. (Id. ¶ 3; Def.'s App., Ex. C, Dep. of Marcus Morgan at 61.) When Morgan returned to the store to work for Strack, he did not leave his job at Home Depot. Instead, he worked a 40 hours per week at Home Depot and 20-30 hours per week at Strack. (Id. ¶ 4.) Those hours included days when Morgan did not work at Home Depot at all, as well as two-to six-hour shifts at Strack after he had already worked an eight-hour day at his other job. (Id.)

As a loss prevention officer, Morgan's job duties required him to minimize theft losses at the Elston Avenue store by preventing customers from shoplifting merchandise. He was hired by and managed by Ray Gutierrez, who is Hispanic. (Id. ¶¶ 6, 7.) Gutierrez acted as Strack's Loss Prevention Manager at four different locations. (Id. ¶ 20.) Gutierrez reported to John Mowrey, Strack's Director of Loss Prevention. (Def.'s LR Reply ¶ 3.)

Strack routinely monitors the incidences of shoplifting in its stores, in part, by keeping theft statistics on a store-by-store basis. Gutierrez sends emails to his manager or otherwise tracks the weekly stops in the four stores he supervises. (Def.'s App., Ex. D, Dep of Raymond Gutierrez at 9.) The company maintains apprehension records that account for the number of "theft stops" its loss prevention officers make each month of suspected shoplifters. (Pl.'s LR Resp. ¶ 21; Def.'s App. at Ex. D, Apprehension Records.) A "theft stop" occurs after a customer takes an item, conceals it, and walks past the last point of purchase. Strack's officers are required to stop and detain the customer, bring the customer in an enclosed area and identify what item was concealed and recovered. (Gutierrez Dep. at 10.) According to Gutierrez, Strack sends the customer on his or her way in most cases, depending on the cost of the item. (Id. at 9-11.) In addition to theft stops, officers are also required to make a "blisters empty package report" each Monday concerning merchandise that has been removed from its packaging. (See Pl.'s LR Resp. ¶ 21.)

The loss figures for Strack's Elston Avenue store were relatively high, both before and after Morgan worked there. (Pl.'s LR Resp. ¶ 23.) The store lost between $100 and $300 each month to shoplifting, placing it somewhere in the middle range of losses for the four stores Gutierrez managed. (Id.; Gutierrez Dep. at 16.)

Strack does not have a policy or quota requiring officers to make a specific number of theft stops, but it maintains some expectations that its officers would keep their "numbers up." (Pl.'s LR Resp. ¶¶ 24, 27.) According to Strack, the blister reports and apprehension records play a role in Strack's decision whether to terminate the employment of a loss prevention officer, although Morgan disputes that was the true motivation behind his termination. (Pl.'s LR Resp. ¶ 22.) Morgan knew from his prior experience as a loss prevention officer that the number of stops he made would be an important factor in his job evaluation, and Gutierrez stressed that point when Morgan was hired at Strack. (Pl.'s LR Resp. ¶ 9; Morgan Dep. at 96.) In addition, Gutierrez advised Morgan that other Strack officers had been terminated due to insufficient stop numbers. (Pl.'s LR Resp. ¶ 15.) Instead of written warnings for poor job performance, Gutierrez testified he would ordinarily give officers "a verbalization . . . to get their numbers up" whenever the stop numbers were too low. (Gutierrez Dep. at 9-10.)

At first, Morgan's stop numbers met Strack's expectations. (Pl.'s LR Resp. ¶ 24.) However, those numbers declined with each month of Morgan's employment at the Elston Avenue store. He made six stops in July 2007, five stops in August, and only one in September. (See Apprehension Records.) As a result, Gutierrez had between three and four conversations with Morgan in the months before his termination concerning what Gutierrez perceived to be Morgan's sub-par performance. (Pl.'s LR Resp. ¶ 25; Gutierrez Dep. at 19-21.) Morgan does not deny that those conversations took place, but characterizes them as "casual conversation" and disputes that they amounted to disciplinary warnings. (Pl.'s LR Resp. ¶ 25.) Although the Elston Avenue location was close to Morgan's home, Gutierrez and Morgan discussed the possibility of a transfer to a store Gutierrez managed in Forest Park, Illinois that had a higher crime rate. (Pl.'s LR Resp. ¶ 25.) Gutierrez testified that he suggested the change and Morgan decided it was too far for him to go, while Morgan testified that he suggested the move and Gutierrez did not respond. (Id.)

The dairy manager of the Elston Avenue store was a Caucasian man named Frank Kajdawowski. (Pl.'s LR Resp. ¶ 28.) On October 7, 2007, Morgan was speaking with Kajdawowski when the dairy manager removed a portion of a newspaper that was offered for sale, placed that portion (an article about the play "Jersey Boys") inside his rear pocket, and returned the remaining part of the paper back on the newsstand. (Id. ¶¶ 10, 11; Def.'s. App., Ex. C, Written Statement of Morgan.) Morgan was hesitant to apprehend Kajdawowski due his management position. (Pl.'s LR Resp. ¶ 16.) Instead of stopping him, Morgan went to the store's surveillance room and videotaped Kajdawowski walking through the store and eventually leaving it without paying for the paper. (Id. ¶¶ 12, 14; Morgan Dep. at 113-14.) Morgan reported the incident to the Elston Avenue store manager, Mike Gugliano, that night or the next day and he met with Gutierrez to review the videotape of Kajdawowski's behavior. (Pl.'s LR Resp. ¶¶ 13, 14.)*fn2 Morgan admits that during that meeting with Gutierrez to review the videotape, race was not part of the discussion. (Pl.'s LR Resp. ¶ 14.) They discussed the incident, and Morgan wrote a narrative description of what Kajdawowski had done. (See Written Statement of Morgan.) Kajdawowski was suspended for one day and placed on 60 days probation, with a notation that, following the probation, his position would be reevaluated. (Id.; Def.'s LR Reply ¶ 11; Def.'s App., Ex. G, Employee Corrective Action Notice for Kajdawowski.)

Prior to reporting Kajdawowski, Morgan never received a writtendisciplinary notice for low or poor quality work, lack of production, or lack of theft stops, although he had the previously-described conversations with Gutierrez. (Def.'s LR Reply ¶ 4.) He had, however, received two Employee Corrective Action Notices on September 24, 2007 for being tardy on September 18 and 23, 2007, as his fourth and sixth "tardy," respectively. (Def.'s App., Ex. F.) Both were ultimately waived. (Id., Def.'s LR Reply ¶ 8.) On October 9, 2007, two days after the incident involving Kajdawowski, Gutierrez issued two Employee Corrective Action Notices concerning Morgan. One said that Morgan had shown "low quality of work" by having only one theft stop in September 2007, and none for the first week of October. (Pl.'s LR Resp., Ex. D.) In the notation section, Gutierrez stated that Strack expected Morgan to have two to three theft stops each week, and absent any improvement in his numbers, Morgan could be terminated. (Pl.'s LR Resp., Ex. D.) The second report noted that Morgan had arrived for work ninety minutes late on October 8, 2007, but had only notified Assistant Security Director Darrell Roberts of his lateness by email instead of alerting his immediate supervisor directly. (Id., Ex. E.) Morgan testified that Strack had excused his occasional tardiness prior to that time, which Strack disputes. (Def.'s LR Reply ¶ 8.)

According to Gutierrez, after comparing Morgan's apprehension record with that of other loss prevention officers, Gutierrez decided to terminate Morgan's employment with Strack. (Gutierrez Dep. at 35-37.)*fn3 Gutierrez had the authority to terminate loss prevention officers after consulting with his own supervisor, John Mowery. (Pl.'s LR Resp. ¶¶ 30-33.) Morgan acknowledges that Mowery thought that Morgan's production "fell off totally in September." (Pl.'s LR Resp. ¶ 34.) Mowery agreed with Gutierrez, and Morgan was fired on October 24, 2007. (Id. ¶ 15.) Gutierrez issued an Employee Corrective Action Notice on that date stating that Morgan had been terminated for "poor quality of work," namely, "lack of production/theft stops." (Pl.'s LR Resp., Ex. G.) Morgan was replaced by someone who lasted one month due to lack of production. (Pl.'s LR Resp. ¶ 26.) The record does not disclose anything about that person. The second replacement, Jesus Gonzalez, remains employed at Strack. (Id.)

Although Gutierrez thought that Morgan should have stopped Kajdawowski at the exit doors, Mowery thought Morgan handled the incident correctly in bringing to management's attention. (Def.'s LR Reply ¶¶ 13, 14.) If Morgan had stopped Kajdawowski, it would have given him one more theft stop in October, but he would have needed more than that to prevent termination. (Def.'s LR Reply ¶ 17; Pl.'s LR Ex I, Dep. Jessica Hon at 13-14.)

Morgan admits that, other than his termination, he never felt that Gutierrez acted in a discriminatory manner toward him. (Pl.'s LR Resp. ¶ 17.) Up to that point, Morgan did not feel that Gutierrez or Gugliano, the store manager, had discriminated against him, and he had not observed racial discrimination by them. (Id. ¶17.)

On August 12, 2008, Morgan filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging race discrimination and retaliation for reporting a white supervisor. (Compl., Ex. B.) The EEOC issued a right to sue letter on October 23, 2009 (id., Ex. C), and Morgan brought this lawsuit on January 22, 2010. [Dkt 1.]


A. Summary Judgment

Summary judgment is warranted if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining whether a genuine issue of material fact exists, the evidence is viewed, and all inferences are drawn, in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Smith v. Ball State Univ., 295 F.3d 763, 767 (7th Cir. 2002). The mere existence of some factual dispute does not defeat a summary judgment motion; there must be a genuine issue of material fact for a motion to be denied. Anderson, 477 U.S. at 247-48. A fact is "material" if it "might affect the outcome of the suit under the governing law." Id. at 248. A factual dispute is "genuine" if the evidence is such that a reasonably jury could return a verdict for the nonmoving party. Id. In determining whether summary judgment is warranted, courts do not make credibility determinations, weigh evidence, or decide what inferences to draw from the facts. Washington v. Haupert, 481 F.3d 543, 550 (7th Cir. 2007) (citation omitted).

B. Title VII

Title VII makes it unlawful "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . ." 42 U.S.C. §2000e-2(a)(1). A plaintiff can prove a Title VII claim when he proffers direct evidence that "is essentially an outright admission that a challenged action was undertaken for one of the forbidden reasons covered in Title VII." Cordoso v. Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir. 2005) (internal quotation and citation omitted). When, as here, no direct evidence of discrimination has been presented, a claim of disparate treatment under Title VII may be shown indirectly under the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this method, a plaintiff has the burden of establishing a prima facie case of discrimination by showing that he: (1) is a member of a protected class; (2) met the employer's legitimate business expectations; (3) suffered an adverse employment action; and that (4) similarly-situated employees outside of the protected class were treated more favorably. Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012). The failure to demonstrate any one of these requirements is fatal to a Title VII claim. Atanus v. Perry, 520 F.3d 662, 673 (7th Cir. 2008) ("Summary judgment is appropriate if the employee fails to establish any of the foregoing elements of the prima face case.").

If a plaintiff satisfies this standard, the burden shifts to the employer to proffer a legitimate, non-discriminatory reason for the adverse employment action. Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 477 (7th Cir. 2010). Once shown, the burden reverts to the plaintiff to demonstrate that the employer's proffered reason is pretextual and that a discriminatory animus was the true reason for the employer's action. Id. Under Title VII, "the ultimate burden of demonstrating that the defendant ...

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