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Cannon v. General Supply & Services, Inc.

United States District Court, N.D. Illinois, Eastern Division

December 19, 2016



          AMY J. ST. EVE, United States District Judge

         Before the Court is Defendant General Supply & Services, Inc. (“Gexpro”)'s motion for summary judgment in this employment discrimination case. (R.30). For the reasons set forth below, the Court grants Defendant's motion and dismisses this case with prejudice.


         I. Northern District of Illinois Local Rule 56.1

         Local Rule 56.1 “is designed, in part, to aid the district court, ‘which does not have the advantage of the parties' familiarity with the record and often cannot afford to spend the time combing the record to locate the relevant information, ' in determining whether a trial is necessary.” Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation omitted). Local Rule 56.1(a)(3) requires the moving party to provide “a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law.” Petty v. City of Chicago, 754 F.3d 416, 420 (7th Cir. 2014). “The non-moving party must file a response to the moving party's statement, and, in the case of any disagreement, cite ‘specific references to the affidavits, parts of the record, and other supporting materials relied upon.'” Id. (citation omitted); see also L.R. 56.1(b)(3)(B). Local Rule 56.1(b)(3)(C) “requires specifically that a litigant seeking to oppose a motion for summary judgment file a response that contains a separate ‘statement . . . of any additional facts that require the denial of summary judgment.'” Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir. 2012) (citation omitted). “The obligations set forth by a court's local rules are not mere formalities.” Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644, 648 (7th Cir. 2014). District courts have discretion, therefore, “to strictly enforce local rules regarding summary judgment by accepting the movant's version of facts as undisputed if the non-movant has failed to respond in the form required.” Id.; see also Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015) (“This Court has consistently upheld district judges' discretion to require strict compliance with Local Rule 56.1”).

         Here, Plaintiff Antron Cannon (“Cannon”) filed both a Local Rule 56.1(b)(3)(B) response and Local Rule 56.1(b)(3)(C) statement of additional facts. (R.36, R.37). Several of Cannon's Local Rule 56.1(b)(3)(B) responses, however, do not comply with Local Rule 56.1.[1] In particular, Cannon's responses to ¶¶ 5-12, 14, 16-17, 19-24, 26-27, 29, 32, 34-37, 39-42, and 44-57 either: (i) do not “admit or deny facts as presented in the moving party's statement[, ]” Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015) (emphasis added); (ii) do not “provide the admissible evidence that supports his denial in a clear, concise, and obvious fashion, for quick reference of the court[, ]” see id.; and/or (iii) make reference to legal argument. See Id. These responses, in other words, fail to meet the standard set forth in Local Rule 56.1. See Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 528 (7th Cir. 2000) (“The statement is so full of argument, evasion, and improper denials that it defeats the whole point of Local Rule [56.1]-to identify just what facts are actually in dispute”); Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009) (“Employment discrimination cases are extremely fact-intensive, and neither appellate courts nor district courts are obliged in our adversary system to scour the record looking for factual disputes”) (citation omitted). Accordingly, the Court deems the underlying statements of fact uncontested. The Court, nonetheless, has reviewed Cannon's specific record citations where he offered them. The relevant facts are as follows.

         II. Cannon's Employment at Gexpro

         Cannon, who is black, began working at a Naperville-based Gexpro warehouse through a temporary staffing agency in May 2010. (R.32, Rule 56.1(a)(3) Stmt. Facts ¶¶ 8, 10-12). In that capacity, he “picked [products], loaded trucks, whatever they asked [him] to do.” (Id. (citing R.31-2, Cannon Dep. Tr. at 70-74, 83-84)). During the course of that employment, Cannon spoke with Gexpro's warehouse supervisor, Joe Anderson (“Anderson”), about becoming a regular employee. (Id.). With Anderson's support, Gexpro hired Cannon as a permanent employee beginning July 18, 2011. (Id.; see also R.31-3, Anderson Dep. Tr. at 177-79 (“I was really pushing hard for it”)). Cannon continued to work in the warehouse. (Id.; R.31-2, Cannon Dep. Tr. at 74 (“[Q]. I think you said it was doing the same job as what you were doing as a temp? [A]. Yes”)).

         While at Gexpro, Cannon “worked in almost every zone, ” although Anderson “usually” assigned him to Zone 2, which involved moving “large” and “heavy” products. (R.31-2, Cannon Dep. Tr. at 83-84; see also R.31-11, 2011 Performance Evaluation (observing, “because I have learned all different jobs of the warehouse I can be placed where needed if we are short”)). In addition to Cannon, two other black male pickers primarily worked in Zone 2. (R.37, Cannon Rule 56.1(b)(3)(C) Stmt. Additional Facts ¶ 1; R.39-1, Cannon Dep. Tr. at 90-94). Those two men eventually left Gexpro's employment, at which point Cannon contends that he, alone, worked a primary assignment in Zone 2. (Id.). A white male picker named Scott Lanig (“Lanig”), who had diabetes and was “sickly, ” would “sometimes” work in Zone 2, as would a Pakistani male temporary worker. (See id.; R.31-2, Cannon Dep. Tr. at 106-07). In addition, another white male employee, Ray Hughes (“Hughes”), spent approximately 70% of his time in Zone 2 as a picker. (R.31-35, Hughes Decl. ¶¶ 6-7, 13-14). Two female pickers, meanwhile, primarily worked in Zone 1. (R.31-3, Anderson Dep. Tr. at 33-35). One of them, Laurie Bulger, was white. (Id.). Zone 1 contained the smaller items that fit in bins, while Zone 2 usually contained the larger items and pallets with items packaged in bulk. (R.32, Rule 56.1(a)(3) Stmt. Facts ¶ 6). As Cannon acknowledged, some warehouse assignments required “more lifting or more strength than others[.]” (R.31-2, Cannon Dep. Tr. at 120). At the time, Cannon had the physical strength to work within Zone 2, although he experienced on-the-job pain. (Id. at 110-12, 96-97). He did not file a workers' compensation claim while at Gexpro. (Id.).

         In Cannon's 2011 performance evaluation, Anderson noted, “Antron has performed well in many areas of his job. His picking productivity in zone 2 . . . stands out as a leader . . . In addition to his productivity, Antron has also been very helpful to the team by developing best practices for picking product effectively.” (R.31-11, 2011 Performance Evaluation). Cannon discussed this written evaluation with Anderson during an in-person meeting around April 2012. (R.32, Rule 56.1(a)(3) Stmt. Facts ¶ 16; R.32-2, Cannon Dep. Tr. at 95-99 (“I had this performance review maybe a couple weeks before I stopped working”)). This document-which incorporates feedback from both Cannon and Anderson-does not memorialize any written complaint or concern from Cannon. (Id.).

         Between 2009 and 2011, Gexpro downsized its warehouse staff from 30 to 18 employees, including Cannon. (R.32, Rule 56.1(a)(3) Stmt. Facts ¶ 7). The remaining warehouse staff, as a whole, included five white males (including Anderson), five black males, five white females, one mixed race female, one Asian male, and one Asian female. (Id. ¶ 5). Two black staff members and one Asian staff member received a promotion either during or shortly after Cannon's tenure at Gexpro. (Id. ¶ 17).

         III. Cannon's Verbal Complaints

         According to Cannon, sometime before the April 2012 meeting with Anderson, he began verbally complaining about being treated like a “horse” and a “slave” in Zone 2. (R.31-2 and R.39-1, Cannon Dep. Tr. at 96-97, 102-03, 108-10, 120-23 (“It's like you're slaving me and you let… everybody else do all the easy work”)). When asked what, specifically, he said to Anderson, Cannon recalled, “I said I feel like it's because I'm black and you won't move - let me move around but you move [Scott Lanig and Ray Hughes] around.” (Id. at 103, 107-10, 122-23 (“And I constantly told him . . . When I injured myself, when I injured my feet, when I had pulled the groin muscle I had told him”)). The timing of this race-based complaint, however, is not clear. (Id.). Moreover, as Cannon acknowledged, the terms “horse” and “slave” were his own expressions. No member of Gexpro management, including Anderson, used those terms when referring to Cannon. (Id. at 123, 132).

         According to Anderson, Cannon's verbal complaints did not concern his race. (R.31-3, Anderson Dep. Tr. at 29, 172-73, 180-81 (testifying that the complaint was, “I don't want to work in Zone 2”)). Anderson disputes Cannon ever telling him that “he felt he was being discriminated against because of his race” or that “he was being treated like a slave.” (Id.). Anderson testified that Cannon and other employees complained “all the time” about their workload and work assignments, but that reassignment opportunities were “rare.” (R.32, Rule 56.1(a)(3) Stmt. Facts ¶ 19).[2] As Anderson testified, “I assigned people to where the work was… You had you put them where they performed best.” (R.31-3, Anderson Dep. Tr. at 88-89; id. at 38 (“I needed the work to get done. Without [Cannon] in Zone 2, I really didn't have, you know, very many other people to assign to that role”)). Anderson, accordingly, placed Cannon in Zone 2. (Id. at 178 (“He's a big guy . . . A pretty strong looking guy”); id. at 208-10 (“I divided the workload up . . . based on the physical capabilities of the people performing the jobs”); R.31-32, Witness Interview Notes (“[Cannon] was assigned to Zone 2 because he was a larger gentleman who was able to lift the heavy equipment. He was performing that job before he was brought in full time, [and] then he gets full-time [employment] and it's an issue”)). Anderson believed all of Cannon's complaints concerned workload and work assignments, not racial discrimination. (R.32, Rule 56.1(a)(3) Stmt. Facts ¶ 23). Four of Cannon's co-workers, including three black co-workers, attested that Cannon did not mention or complain about racial discrimination to them, nor did they witness or experience any racial discrimination by Anderson. (Id. ¶ 22).

         IV. May 2, 2012 - May 4, 2012

         On May 2, 2012, Anderson issued a written “Notice of Unacceptable Behavior” to Cannon related to an April 30, 2012 incident during which Cannon mislabeled six reels of wire. (R.31-13 (the “May 2 Notice”); R.31-3, Anderson Dep. Tr. at 181-84). The May 2 Notice recited, in part:

On several occasions prior to this incident, the associate was instructed by the warehouse manager to pick this type of material in a manner that accounted for each package, or 1 load label for each reel in this case . . . By not following instruction, we are now unable to dispute the customer's claim, and the material will need to be replaced. Total cost to the company for this error is in excess of $3, 000.00 . . . This document serves as notice to the associate that this type of behavior is unacceptable. The associate was trained on more than 1 occasion to perform this task in the correct manner. Any further instances of this type of incident will be considered insubordination and the penalty for such will be termination of employment.

(Id.). Indeed, Anderson had previously instructed Cannon not to engage in such labeling practices. (R.39-2, Anderson Dep. Tr. at 84-86). According to Cannon, though, another warehouse supervisor-albeit junior to Anderson-had approved this practice. (R.31-2, Cannon Dep. Tr. at 133-36).

         On May 3, 2012, Anderson conducted a warehouse department meeting. According to Cannon, during that meeting, “I went off and told them that, you know, how [Anderson] was working me, it was crazy. You know, I told him you could run a horse into the ground, you can't even run a horse like you run me. Sooner or later a horse is going to go lame and that's what you're doing to me.” (R.31-2, Cannon Dep. Tr. at 140-43). Although Cannon now attests that he “complained of racial discrimination and retaliation” during this meeting, (R.39-5, Cannon Aff. ¶ 11), his deposition testimony does not support such a broad statement. (R.31-2, Cannon Dep. Tr. at 142 (“[Q]. Did you use the ‘working like a slave' or ‘slaving' comment during that meeting? [A]. No, I don't think so, no”)). Anderson then asked Cannon to leave and wait in his office. (Id. at 143). As Anderson testified, “basically [Cannon] became very argumentative and belligerent towards his co-workers in the meeting, and I actually had to remove him from the meeting because he was disrespectful in many ways.” (R.31-3, Anderson Dep. Tr. at 143-44). Cannon did not “talk about being treated like a slave” or “bring up race at all.” (Id. at 186-88). Three of Cannon's co-workers present at that meeting, including two black co-workers, Curtis Coleman and Claude Turner, attested that Cannon swore, talked over Anderson, and acted aggressively. (R.32, Rule 56.1(a)(3) Stmt. Facts ¶ 27). Coleman and Turner further attested that Cannon “never complained about or mentioned race discrimination[, ]” including during the May 3, 2012 department meeting. (R.31-34, Coleman Aff. ¶ 12; R.31-37, Turner Aff. ¶ 5).

         On May 4, 2012, Cannon met with Anderson and Gexpro's District Operations Manager, Julie Massey (“Massey”). (R.32, Rule 56.1(a)(3) Stmt. Facts ¶ 28). The goal of that meeting “was to counsel Cannon and gauge his interest in working at Gexpro - not to terminate him.” (R.37, Cannon Rule 56.1(b)(3)(C) Stmt. Additional Facts ¶ 5). Prior to the meeting, Gexpro's human resources representative, Laura Whalen (“Whalen”), had spoken with Anderson and Massey about Cannon, telling them to engage in a “conversation” with Cannon “to set out the expectations and hopefully come to an agreement in terms of, you know, going forward with . . . his behavior.” (R.31-4, Whalen Dep. Tr. at 87-88). The meeting, however, “didn't go well.” (Id.). According to Cannon, Anderson had a “little sheet of paper with four or five” discussion points on it, including Cannon's unhealthy relationships with peers, attendance issues, unacceptable work practices, and disruptive behavior. (R.31-2, Cannon Dep. Tr. at 149-160; see also R.31-15, Meeting Outline). Anderson was “very combative” and accused Cannon of falsifying records. (Id.). Cannon, in turn, admitted that he, too, was “argumentative” because he was “standing up” for himself. (Id.). He told Anderson and Massey, “This right here is how you treat me. You treat me like a slave[.]” (Id. at 151; R.31-3, Anderson Dep. Tr. at 228 (“It was very antagonistic”)). Massey, in turn, was “very nice, very understanding” and told Cannon he could leave for the day, with pay, and then they could talk again Monday morning about his work behavior or whether he wanted to quit. (R.32, Rule 56.1(a)(3) Stmt. Facts ¶ 30; R.31-6, Massey Dep. Tr. at 100-01 (“[Q]. So you left the meeting on May 4 telling Antron to think about it and come back on Monday. [A]. Correct . . . The understanding was, on Monday, if Antron came to work, that the three of us would sit down”)).

         V. May 7, 2012 - May 10, 2012

         Cannon did return to work the following Monday, May 7, 2012. (R.32, Rule 56.1(a)(3) Stmt. Facts ¶ 31). After he punched in, however, Anderson “gave [him] a little sheet that said [he] was terminated.” (R.31-2, Cannon Dep. Tr. at 178; R.12, Compl. at ¶ 10 (“Cannon reported to work and after a lengthy discussion with Joe Anderson was told that he was discharged”)). Cannon then turned around and walked out of the warehouse, without speaking to Massey. (R.31-2, Cannon Dep. Tr. at 185-87). According to Massey, “[t]he next thing I knew, Joe [Anderson] came into my office and said Antron no longer works here.” (R.31-5, Massey Dep. Tr. at 33-36 (“[Q]. And what did Joe tell you? [A]. They didn't agree on the talking points”)). After speaking with Anderson, Massey thought Cannon's departure was “a mutually agreed-upon decision” wherein Cannon formally “quit” because he “didn't want to do the [Zone 2] work that we had available for him.” (Id. at 99, 102-06). Whalen-Gexpro's human resources representative-believed the same. (Id. at 105; R.31-4, Whalen Dep. Tr. at 90-91, 132-34 (“And whether . . . I was under the impression that he quit, or whether Joe terminated him, either way, [Cannon] didn't agree with the terms of his employment”)). Anderson, for his part, could not recall the specifics of his May 7, 2012 conversation with Cannon. (R.31-3 and R.39-2, Anderson Dep. Tr. at 112-13, 123 (“I remember terminating him”)).

         According to Whalen, this “was a unique situation” insofar as Anderson did not have a formal “stamp of approval” to terminate Cannon on May 7, 2012. (R.31-4 and R.39-4, Whalen Dep. Tr. at 59-61, 64-68, 93, 100-01, 103-04, 109, 111 (“It was not the direction that we gave”)).[3] Ultimately, however, both Whalen and her supervisor reviewed and approved the termination. (Id.). Gexpro issued a termination letter to Cannon on May 10, 2012. (R.31-16 (the “May 10 Termination Letter”); see also R.31-31, May 14, 2012 E-mail from Whalen to Anderson (“Joe - Since [Cannon] was not authorized to be terminated until 5/10 he will be paid through 5/10”)). The May 10 Termination Letter stated, in part: “Following the disciplinary action on May 2, 2012, you continued to be disrespectful to peers and insubordinate to the Warehouse Supervisors . . . We went through a detailed account of your improvement needs [on] Friday, May 4, 2012 and you did not agree to make the necessary improvements.” (R.31-16; see also R.31-4, Whalen Dep. Tr. at 59-61 (explaining the “individual circumstances” of this termination decision); R.31-3, Anderson Tr. at 128 (“I pushed very hard to have [Cannon] hired on as a full-time employee . . . towards the end of his employment with us, it was shocking to me that he was exhibiting such poor behavior”)). Whalen confirmed that Gexpro did not have a “progressive discipline” policy-that is, escalating “levels” of review and disciplinary action prior to termination-although it did develop “performance improvement plans” (“PIP”) for some employees. (R.31-4 and R.39-4, Whalen Dep. Tr. at 31, 51-52, 68-70 (“A PIP was used more for actual performance issues”); R.39-2 Anderson Dep. Tr. at 157 (testifying that he received a PIP)).[4] Cannon does not recall receiving any termination letter from Gexpro. (R.39-5, Cannon Aff. ¶ 15).

         VI. ADR and EEOC Proceedings

         After his termination, Cannon initiated Alternate Dispute Resolution (“ADR”) proceedings. (R.32, Rule 56.1(a)(3) Stmt. Facts ¶ 37). In his Level I ADR submission dated June 5, 2012, Cannon stated that he was “wrongfully terminated” for “complaining about unfair work practices, ” including the work being “unfairly distributed” among the warehouse staff, with him “left alone to do a two person job” and “not being moved around” while “[Laurie] and Scott [were] allowed to put away the easy things.” (R.31-17).

         During a subsequent ADR meeting with Whalen and Massey, Cannon was “not quite sure” whether he used the word “race” or “discrimination” in describing his claim. (R.32, Rule 56.1(a)(3) Stmt. Facts ¶ 39). When asked at his deposition, “You didn't say race discrimination, did you?” Cannon responded, “I think I said unfair work practices” stemming from being “in Zone 2” and not “moved around.” (R.31-2, Cannon Dep. Tr. at 201-02, 205-06). Cannon now contends that his ADR claim “revolved around being the only African American assigned to work primarily in Zone 2 and that that necessarily raised the issue of race discrimination and retaliation based on his work circumstances.” (R.39-5, Cannon Aff. ¶ 21). Whalen, however, did not interpret his claim as a racial discrimination charge. (R.31-4, Whalen Dep. Tr. at 138-41). As she explained, “Never did [Cannon] tell me in our discussions that he felt like it was a race issue. He told me he felt like he was being overworked. Scott Lanig, who, yes, does happen to be a white employee, [had] recently returned from medical leave, so I understand why Scott Lanig would not be assigned to the bulk area for his full work assignment . . . So no, I did not assume it was a race issue simply because one employee was black and one employee was white.” (Id.). Massey testified similarly, acknowledging, “I know Scott Lanig is white, yes. But, again, that had nothing to do with what we had talked about previously. We were only talking about the work in Zone 2. Race had not entered any of the conversations.” (R.31-6, Massey Dep. Tr. at 141-43).

         On July 2, 2012, Whalen issued a Level II ADR letter to Cannon, advising that Gexpro had reviewed his claim and had “concluded that the termination of [his] employment was appropriate[.]” (R.31-18). Cannon then filed his Level III ADR submission, which included the same letter that he had submitted at Level I, plus five extra pages. (R.32, Rule 56.1(a)(3) Stmt. Facts ¶ 40; R.31-19). Those extra pages did not reference “race discrimination, ” but they did reference the “Equal Opportunity Act of 2010” and the “American Civil Law Act of 1964.” (Id.). After reviewing these supplemental materials, Gexpro affirmed its ...

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