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Davis v. Southern Wine & Spirits of Illinois

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

May 30, 2018

LOAR DAVIS, Plaintiff,



         After defendant Southern Wine & Spirits of Illinois (“Southern Wine”)[1] terminated his employment, plaintiff Loar Davis (“Davis”) filed a pro se complaint alleging that defendant violated Title VII of the Civil Rights Act of 1964 by discriminating against him on the basis of his race and color and by retaliating against him. Defendant has moved for summary judgment. For the reasons set forth below, the Court grants defendant's motion [39] for summary judgment. Defendant's motion [54] to dismiss for want of prosecution is denied as moot.

         I. BACKGROUND

         When defendant filed its motion for summary judgment, it served plaintiff with the required Notice to Pro Se Litigant Opposing Motion for Summary Judgment. Plaintiff has not responded to defendant's motion for summary judgment, despite having plenty of time to do so. The Court originally gave plaintiff more than six weeks to respond to defendant's motion, and, on plaintiff's request, twice extended plaintiff's time to respond, such that plaintiff had a total of seventeen weeks of time to respond. The Court denied plaintiff's third motion for extension of time, because he filed the motion after the deadline had passed and because the Court had previously stated that the deadline would not be further extended.

         The upshot of plaintiff's failure to respond is that the Court deems admitted all of the facts in defendant's statement of undisputed facts that defendant has properly supported with citations to evidence admissible for summary judgment purposes. 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. 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 Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218-19 (7th Cir. 2015); Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004). This does not, however, absolve the party putting forth the fact of the duty to support the fact with admissible evidence. See Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir. 2012). Thus, the Court has deemed admitted the facts defendant put in its statement of facts to the extent those facts were supported by citations to evidence. Nearly all were. Thus, the following facts are undisputed.

         Defendant Southern Wine is a liquor distributor. It operates a warehouse in Bolingbrook, Illinois, which is where it employed plaintiff Loar Davis. The warehouse operated overnight to sort the alcoholic beverages that would be distributed to customers the following day. The night shift at the warehouse typically ran four nights per week from 7:00 p.m. until 5:30 a.m., with a thirty-minute, unpaid break. Defendant maintained a work rule prohibiting sleeping during work hours.

         The events that gave rise to this lawsuit began on September 29, 2015, when plaintiff told supervisor JL Snyder (“Snyder”) that another supervisor, Mike Ryan (“Ryan”) had threatened him. Specifically, plaintiff told Snyder that Ryan had said to plaintiff, “I'll take you outside and kick your fucking ass right now.”

         Two days later, in the early morning hours of October 1, 2015, James Brown (“Brown”), a supervisor on the night shift, observed plaintiff sleeping and then took a picture of plaintiff sleeping. According to Brown, plaintiff's “eyes were closed and his head was slouched over toward his left shoulder.” Brown saw plaintiff's feet propped on a box. Three other individuals, Benny Romanini (“Romanini”) (a manager on the day shift), Ricky Schrader (“Schrader”) (a night shift supervisor) and Ryan (a leadman on the night shift) also observed plaintiff sleeping. As Romanini described it:

I called his name but he did not stir. I called his name again-this time louder- but got no response. . . . The sorter machinery had been turned off earlier that night so he would have heard me and responded if he had been awake. I said, “Loar Davis, it's time to go home” even louder and this time he awoke with a start. He had not moved at all until I said his name the third time.

(Def. Statement of Facts ¶ 7). It is undisputed that Brown, Romanini, Schrader and Ryan believed that plaintiff was sleeping. Plaintiff testified that he was not sleeping and that he does not know what Brown, Romanini, Schrader and Ryan believed.

         By 6:00 a.m., Brown had emailed the photograph he had taken of plaintiff to William Arends, Jr. (“Arends”), who was, at the time, defendant's Director of Warehousing and Distribution. In the same email, Brown informed Arends that plaintiff had been sleeping. Arends spoke with Romanini, as well as the Vice President of Human Resources, Valarie Parker (“Parker”) and the Vice President of Operations, Dale Huhnke (“Huhnke”). That afternoon, Arends telephoned plaintiff to inform him that he was suspended pending an investigation.

         Plaintiff was a member of Distillery Workers Local No. 3, whose collective bargaining agreement with defendant required that a Union Steward or Union Representative be present when an employee was disciplined. Accordingly, defendant set up a meeting between Parker, Joe Garcia (“Garcia”) (the Director of Security), a Union Representative and plaintiff. That meeting happened on October 5, 2015. During that meeting, plaintiff gave Parker a grievance, in which he alleged race discrimination. Specifically, plaintiff alleged that he was subjected to race discrimination days earlier when Ryan had threatened him (by saying he would take plaintiff outside and “kick his fucking ass”). After the meeting, Garcia completed his investigation, including a review of video, and reported his conclusion to Parker, Huhnke and Arends. Garcia's conclusion was that plaintiff had been sleeping.

         It was up to Arends and Huhnke to decide the appropriate discipline for plaintiff. In considering the appropriate discipline, they considered the circumstances of another employee, Anthony Chiarelli (“Chiarelli”), who had been accused of sleeping during work hours. In Chiarelli's case, one person had seen Chiarelli laying down, but several other employees said Chiarelli had not been sleeping. Defendant gave Chiarelli a verbal warning. In plaintiff's case, Arends was convinced plaintiff was sleeping, because four supervisors had witnessed plaintiff sleeping and because they had to say plaintiff's name three times before he woke up. Arends and Huhnke decided to terminate plaintiff's employment. Thus, on October 8, 2015, Parker sent a letter to plaintiff to inform him that his employment had been terminated for sleeping during work hours in violation of a company work rule.

         During his deposition, plaintiff stated that he thought another employee, Ray Luska (“Luska”) had also been found sleeping during work hours. The undisputed facts are that Luska was never accused of sleeping during ...

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