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Vinson Johnson v. Jewel Food Stores

October 18, 2012


The opinion of the court was delivered by: Judge James B. Zagel


Plaintiff Vinson Johnson filed this action against Defendant Jewel Food Stores, Inc., an Ohio corporation and Mr. Johnson's former employer. Mr. Johnson, an African-American, alleges that his employment was terminated because of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Defendant now moves for summary judgment. For the following reasons, Defendant's motion is granted.


Mr. Johnson began working for Jewel Food Stores, Inc. ("Jewel") in 1996. He was employed in the company's Melrose Park Distribution Center. In the two years between June 2005 and June 2007, Mr. Johnson was absent from work for periods in excess of four days without prior approval on at least five occasions. Each of these absences appears to have been for medical reasons.

Jewel exercises a somewhat confounding policy regarding employees' health-related absences from work, various components of which are set forth in at least three different documents: (1) the Collective Bargaining Agreement ("CBA") between Jewel and its hourly employees at the Distribution Center, who are represented by the International Brotherhood of Teamsters, Local 710; (2) the Melrose Park Distribution Center Policy and Procedure Manual ("Manual"); and (3) a policy notice posted on bulletin boards in the Distribution Center and set forth in letters mailed to absent employees that requires those employees who are absent for medical reasons without prior approval for more than three days to submit absence reports in each of the first two weeks of their absence, and a "report of attending physician" every three weeks until the employee returns to work ("Report Policy").

According to section 8.4(e) of the CBA, "[a]n employee shall be considered as quitting who is absent from work without approval for four (4) consecutive calendar days in a scheduled workweek." Nevertheless, as described above, the Report Policy permits an employee to save him or herself from this constructive resignation by filing periodic absence reports and physician reports until the employee returns to work, even if the absence began without prior approval. The procedure for addressing health-related absences as set forth in the Manual, however, is somewhat inconsistent with this policy. The Manual contemplates employees submitting physician reports only upon returning from a health-related absence. Appendix B of the CBA, which addresses employee attendance, also refers to the submission of physician reports only upon returning to work.

Consistent with the policy as expressed in the Manual, following each of his first four extended absences, Mr. Johnson presented a physician's report explaining his absence only upon returning to work. During each absence, however, Mr. Johnson received a letter from Jewel reiterating the Report Policy and setting forth a deadline by which his absence reports and physician reports were due. Should Mr. Johnson fail to meet this deadline, the letters warned, his employment with Jewel would be terminated. In each case, Mr. Johnson failed to comply with the Report Policy in advance of the deadline, returned to work shortly after the deadline, presented his physician's report, and resumed his employment without issue. Mr. Johnson avoided termination on each occasion, Jewel explains, because he returned to work within a several-day window that apparently exists between the expiration of the deadline set forth in the warning letter and his supervisors' arrival at a formal decision to terminate his employment.

It appears as though Mr. Johnson concluded that the warning letters referencing the Report Policy were not to be taken seriously. The Manual does suggest that absences may be resolved by presenting a physician's report upon one's return to work, and on four occasions Mr. Johnson appears to have ignored letters warning to the contrary without consequence. Nevertheless, it is clear that Mr. Johnson ultimately miscalculated. Mr. Johnson began his most recent extended absence on June 10, 2007. On July 20, Jewel sent Mr. Johnson a letter similar to those it had sent in connection with his previous absences asking Mr. Johnson to comply with the Report Policy and warning that if he did not file the report forms by July 26, his employment would be terminated.*fn1 As of July 31, Mr. Johnson still had not responded, and Jewel decided to terminate his employment. On August 4, Mr. Johnson attempted to return to work and, upon his arrival, was informed that he no longer was employed by Jewel.

On December 28, 2010, Mr. Johnson filed this suit alleging racial discrimination under Title VII of the Civil Rights Act. Mr. Johnson claims that he was not in violation of Jewel's employee attendance policy, that white employees were not terminated under similar circumstances, and that he was terminated because he is African-American.


I. Legal Standards

A. Standard of Review

Summary judgment should be granted 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 triable fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City of Attica, Ind., 259 F.3d 619, 625 (7th Cir. 2001).

Once the moving party has set forth the basis for summary judgment, the burden then shifts to the nonmoving party who must go beyond mere allegations and offer specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986). The nonmoving party must offer more than "[c]onclusory allegations, unsupported by specific facts" in order to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)). A party will be successful in opposing summary judgment only if it presents "definite, competent evidence to rebut the motion." EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000). I consider the record in the light most favorable to the non-moving party, and draw all reasonable inferences in the non-movant's favor. Lesch v. Crown Cork & Seal ...

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