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Smart v. DHL Express USA Inc.

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

February 2, 2017

KIRBY SMART, Plaintiff,


          Robert M. Dow, Jr. United States District Judge.

         Before the Court is Defendant DHL Express (USA), Inc.'s motion for summary judgment [24]. For the reasons set forth below, Defendant's motion [24] is granted.

         I. Background

         In 1986, Airborne Express hired Plaintiff Kirby Smart as a driver and dock worker.[1]Drivers are responsible for picking up and delivering packages, and typically spend the majority of their shifts driving a company-provided truck. In 2003, DHL Express (USA), Inc. acquired Airborne. Plaintiff continued to work with DHL until August 2010.

         Throughout his employment with DHL and Airborne (collectively, “Defendant”), Plaintiff was a member of Teamsters Local Union No. 705 (the “Union”). The Union entered into a collective bargaining agreement (“CBA”) with Defendant, which governs the employment terms and conditions of all of Union members, including Plaintiff. [26-3.] The CBA also provides a grievance procedure through which employees may challenge any disputes with their employer or adverse employment decisions. Article 21 of the CBA provides that employees can be terminated for “just cause.” Id. at 47. One of the enumerated examples of “just cause” is “Dishonesty (includes theft).” Id.

         Plaintiff was disciplined three times for dishonesty-related infractions while employed by Airborne. In December 1987, Plaintiff was accused of “stealing company time” and “falsifying company documents.” [26-8.] This incident involved accusations that Plaintiff ran personal errands and made unauthorized stops while still “on the clock, ” which meant he was still paid by Airborne for this time. [26, ¶ 20.] He was accused of similar violations in February 1993 and May 1994. [26-6; 26-7.] All three incidents followed a similar pattern: Airborne terminated Plaintiff, he filed a grievance, and he was reinstated after union-negotiated settlements. [26, ¶ 21.] Plaintiff was also explicitly warned that he could be terminated for repeat offenses. Id.

         Fast-forward more than sixteen years. In July 2010, Plaintiff's co-workers complained to Plaintiff's supervisor, Joseph Yates, that Plaintiff was watching videos in his DHL truck while still “on the clock.” [26, ¶ 22.] In response, Yates hired a third-party private investigator to conduct surveillance of Plaintiff in July and August. The investigator observed Plaintiff take multiple personal trips to Blockbuster Video during his shifts on July 12 and 14, 2010, amounting to several hours where Plaintiff was not performing work but still on the clock. The investigator's observations, photographs, and video surveillance were memorialized in a written report. [See 26-12.] Yates and his supervisor, Phillip Rinaldi, also examined Plaintiff's pick-up and delivery reports from July 12 and 14, and found “large, unexplained periods of time where it appeared that [Plaintiff] was not working.” [26-10, ¶¶ 19-20.] Based on the investigator's report and Defendant's own investigation, Yates met with two other DHL management personnel and they all concluded there were sufficient grounds for just cause to terminate Plaintiff's employment. [27, ¶¶ 31-32.]

         On August 10, 2010, Yates, Rinaldi, and other DHL personnel met with Plaintiff and his union steward. Plaintiff was told that his co-workers had complained that he was watching videos in his truck and an investigator had provided them with video and photographs to show that he had been “stealing time.” [27, ¶ 34.] He was then given a termination letter, which references the two dates that Plaintiff “dishonestly stole company time” “while on duty, ” the provision of the CBA this violated, and that Plaintiff would be immediately discharged. [26-4.]

         The next day, Plaintiff filed a union grievance, alleging that Defendant violated two provisions of the CBA when terminating him for dishonesty. [26-5.] The grievance makes no reference to racial discrimination. This omission is likely because, as Plaintiff concedes, he did not believe at the time that he was being terminated because of his race. [27, ¶ 36.] On August 13, Yates and Rinaldi met with Plaintiff and other union officials for a grievance review. Yates and Rinaldi presented the details of the investigation and the attendees viewed and discussed the investigator's surveillance footage and the photographs. Id. ¶¶ 37-39. Plaintiff admitted that he went to Blockbuster during his route for personal reasons, but maintained this occurred during his lunch break. He also contested other factual conclusions from the investigation. [28, ¶¶ 7, 9.] On August 23, the group met again. This time, Yates and Rinaldi made the investigator available to Plaintiff for additional questions and to explain the results of his investigation. Throughout these proceedings, no one referenced Plaintiff's prior terminations for stealing time by Airborne in 1994, 1993, and 1987. Id. ¶ 10.

         Ultimately, Defendant decided to uphold Plaintiff's termination. Plaintiff requested that his union proceed to arbitration on his grievance, but they declined to so. [27, ¶¶ 43-45.] It appears this dispute would not have advanced much further but for events that occurred six months later. On February 23, 2011, Defendant accused another of its drivers, Vince Abbott, of deceitful conduct. Specifically, Abbott was accused of “falsifying attempts”-claiming to try to deliver packages, but never actually making any attempt to do so-by recording that he made twelve delivery attempts in a five-minute period. [26, ¶¶ 47-48.] Abbott was terminated, and the union filed a grievance. Through settlement negotiations with Yates and evidence presented by the Union, Abbott's termination was reduced to suspension without pay and he was not otherwise disciplined. Id. ¶¶ 49-51. For purposes of this case, one more fact is relevant: Plaintiff is African American and Abbott is Caucasian.

         Based on these events (and a few others discussed below), Plaintiff filed this suit alleging discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., and 42 U.S.C. § 1981. Defendant moved for summary judgment [24].

         II. Legal Standard

         Summary judgment is proper where “the movant shows that 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). To establish that a material fact is undisputed, the movant “must support the assertion by * * * citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations * * *, admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). In determining whether summary judgment is appropriate, the Court should construe all facts and reasonable inferences in the light most favorable to the non-moving party. See Carter v. City of Milwaukee, 743 F.3d 540, 543 (7th Cir. 2014). Rule 56(a) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against any party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party would bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Put another way, the moving party may meet its burden by pointing out to the court that “there is an absence of evidence to support the nonmoving party's case.” Id. at 325.

         To avoid summary judgment, the opposing party then must go beyond the pleadings and “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted). For this reason, the Seventh Circuit has called summary judgment the “put up or shut up” moment in a lawsuit-“when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” See Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (citation omitted). The “mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252.

         III. Analysis

         Plaintiff alleges that Defendant refused to reinstate him to his job because of his race in violation of Title VII and Section 1981.[2] “The same requirements for proving discrimination apply to claims under Title VII” and Section 1981. Egonmwan v. Cook Cty. Sheriff's Dep't, 602 F.3d 845, 850 n.7 (7th Cir. 2010).

         In Ortiz v. Werner Enterprises Inc., the Seventh Circuit eliminated the “direct” versus “indirect” evidence distinction from analysis of employment discrimination claims. 834 F.3d 760, 765 (7th Cir. 2016); Cole v. Bd. of Trustees of N. Illinois Univ., 838 F.3d 888, 899 (7th Cir. 2016) (Courts must “look past the ‘ossified direct/indirect paradigm.'”). Instead, “[e]vidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself.” Ortiz, 834 F.3d at 765. The “legal standard * * * is simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiff's race * * * caused the discharge or other adverse employment action.” Id. The ‚Äúsole ...

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