Case: 1:01-cv-01731 Document #: 1 Filed: 03/12/01 Page 1 of 36 PageID #:1
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANDERSON HAWKINS,

) DOCKETED
)

LAWRENCE WOODFORK, on behalf

)

MAR 1 3 2001

of themselves and all others similarly

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situated,

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Plaintiffs,

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JURY DEMANDED

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v.
GROOT INDUSTRIES, INC. and GROOT RECYGLING AND WASTE

1731 )
) ' CASEOlC

) )

Judge:

.JUDGE MORAN

SERVICES, INC.,

)

Magistrate:

Defendants.

)

MA.GlSTRAtE JUDGE ASHMAN

CLASS ACTION COMPLAINT Plaintiffs, on behalf of themselves and all others similarly situated, by their undersigned attorney, for their complaint of discrimination against Defendants, state as follows:

PARTIES 1. Plaintiff, ANDERSON HAWKINS ("HAWKINS"}, is African American and a resident of the state of Illinois.

2. driver.

Plaintiff, HAWKINS, became employed by Defendants on July 5, 1994 as a

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'
3. Plaintiff, LAWRENCE WOODFORK ("WOODFORK"), is African American and a resident of the state of Illinois.

4. 1998.

Plaintiff, WOODFORK, became employed by Defendants on September 2,

5. Defendant, GROOT INDUSTRIES, INC. ("GROOT"), is qualified to do business in the state of Illinois and conducts business in Illinois.

6. Defendant, GROOT RECYCLING AND WASTE SERVICES, INC. ("GROOT RECYCLING"), is qualified to do business in the state of Illinois and conducts business in Illinois.

NATURE OF CASE 7. The cause of action for Plaintiffs and all other persons similarly situated arises under Title VII of the Civil Rights Act, 42 U.S. C. Section 2000e, as amended and 42 U.S.C. Section 1981, as amended.

8. Plaintiffs allege a pattern and practice of racial harassment and national origin harassment against African Americans and persons of Hispanic origin.

9. Plaintiffs allege a pattern and practice of race discrimination against African -2-

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'
Americans and persons of Hispanic origin in connection with work assignments, compensation, transfers, promotions and discipline.
10. Plaintiffs bring this case on behalf of themselves and all others similarly situated, pursuant to Rules 23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure. The class consists of all African American persons who have been employed by Defendants in their Chicago area facilities on or after July 5, 1994 and who are subject to Defendants' employment and human resources policies and practices, including but not limited to current or former employees, and who have been, continue to be, or may in the future be, adversely affected by Defendants' racially discriminatory policies and practices ("the class"). This case meets all the requirements of Rule 23: (a) the class is so numerous that joinder is impracticable; (b) the issues of law and fact applicable to the plaintiffs present questions of law and fact common to the class; (c) the claims of the plaintiffs are typical of the claims of the class; and (d) the plaintiffs will adequately and vigorously represent the interests of the class. The Defendants have acted and refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief with respect to the class as a whole. This class also meets the requirements of (b)(2) and (b)(3). Plaintiffs reserve the right to amend the definition of the class following discovery.
11. Defendants employ a system of decision-making in connection promotions, work assignments, compensation, and transfers which has a disparate impact on African-
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Americans and is not job-related.
12. Each Plaintiff further alleges that he was terminated as a result of his race and in retaliation for opposing discrimination or for associating with those who opposed discrimination.
JURISDICTION AND VENUE 13. This Court has jurisdiction over this matter based upon 42 U.S.C. 2000e, as amended, and 42 U.S. C. Section 1981, 28 U.S.C. 1343(4), 28 U.S. C. 1331.
14. Venue in the Northern District of Illinois is proper. The claim for relief arose in this state. 28 U.S. C. 1391 (b) and (c).
15. At all times relevant herein, Plaintiffs were in a contractual relationship with Defendants within the meaning of 42 U.S.C. Section 1981.
16. At all times pertinent hereto, Defendants were engaged in an industry affecting commerce and has had fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.
17. On or about May 7, 1999 Plaintiff, HAWKINS, filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"), alleging race
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discrimination, racial harassment and retaliation. Said charge is incorporated herein. (Attached as Exhibit 1).
18. On or about November 5, 1999, Plaintiff, WOODFORK, filed a charge of discrimination with the EEOC, alleging race discrimination by Defendants in the various terms and conditions of employment. Said charge is incorporated herein. (Attached as Exhibit 2).
19. After investigating the EEOC charge of Plaintiff, HAWKINS, the EEOC concluded and issued a finding, as follows:
Charging Party alleged that Respondent discriminated against him on the basis of his race, Black, in violation of Title VII, in that he was subjected to harassment and discipline, was paid different wages, and was discharged. Charging Party further alleged that the Respondent retaliated against him in that it discharged him. I have determined that the evidence obtained in the investigation establishes reasonable cause to believe that Respondent discriminated against Charging Party, and a class of individuals, in that it harassed them and subjected them to a hostile work environment based on their race and national origin, in violation of Title VII. (Emphasis supplied} (Attached As Exhibit 3).
12. After investigating the EEOC charge of Plaintiff, WOODFORK, the EEOC concluded and issued a report, as follows:
Charging Party alleged that Respondent discriminated against him on the basis of his race, Black, in violation of Title VII, in that he was paid different wages, harassed, and subjected to different terms and conditions of employment and disciplined. I have determined that the evidence obtained in the investigation establishes reasonable cause to believe that Respondent discriminated against Charging
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Party, and a class of individuals, in that it harassed them and subjected them to a hostile work environment based on their race and national origin, in violation of Title VII. (Emphasis supplied) (Attached As Exhibit 4).
20. In spite of EEOC's finding of class-wide discrimination and harassment and invitation to voluntary compliance and resolution by Defendants, Defendants have failed to enter into an acceptable and reasonable voluntary compliance and resolution. That as such, the named Plaintiffs have each obtained the right to sue in this district court.
21. All conditionsprecedenthavebeenfulfilled by each named Plaintiff, including the filing of a charge of discrimination with the EEOC of the United States Government, and a request and receipt of a Right-to-sue letter from the Equal Employment Opportunity Commission. (Said Charges And Right to Sue Letters Are Attached Hereto as Exhibit 5).
COUNT I PATTERN AND PRACTICE ALLEGATIONS OF HARASSMENT DUE TO RACE. NATIONAL ORIGIN AND INFERIOR TERMS AND CONDITIONS OF EMPLOYMENT 22. That the preceding paragraphs are incorporated by reference here. Plaintiffs bring this count on their own behalf and on behalf of the class.
23. That Defendants engage in a pattern and practice of harassment due to race and national origin and subjected African Americans and Hispanics to inferior terms and
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conditions of employment due to their race and national origin. For example:
24. That during his employment with Defendants, Plaintiff, HAWKINS, was referred to as "monkey" on a daily basis, sometimes up to five times per day by coworkers. These co-workers would refer to HAWKINS and other African Americans in this manner on a daily basis with impunity in the presence of Defendants' officers, supervisors and managers alike. Said co-workers would not be reprimanded or asked to stop by Defendants' agents and supervisors.
25. That during his employment with Defendants, Plaintiff, HAWKINS, and other African American employees were called "porch monkeys"," fucking monkeys", "fucking black monkeys", and "chango" (Spanish for monkey). This name-calling, directed against African Americans, occurred on a daily basis with impunity in the presence of Defendants' officers, supervisors and managers alike.
26. That on a daily basis, Defendants' employees and agents would further harass, taunt and ridicule HAWKINS and other African American employees by making derogatory statements to them such as: "hey monkey! Do you want a banana?", or "let's go to the zoo to see your family."
27. That on a daily basis, HAWKINS was also referred to by such other derogatory names as "Buckwheat" and "Kobe Bryant."
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28. That on a daily basis, employees of Hispanic origin were similarly referred to as "spiks" and "wetbacks."
29. That Defendants' supervisors and agents also participate in the ridicule of African Americans and other minorities. For example, Jim Dowling, supervisor, once told Plaintiff, HAWKINS, to watch his tan because he [Plaintiff] was getting darker.
30. That during his employment with Defendants, Plaintiff, HAWKINS, observed that Defendants' employees refer to African Americans as "niggers."
31. That Plaintiff, WOODFORK, was subjected to similar derogatory and harassing treatment as HAWKINS on a daily basis as described above.
32. That furthermore, and in addition to the racial slurs described above, on a daily basis, Plaintiff, WOODFORK, was referred to as "big black bear" by coworkers.
33. That on one occasion, Plaintiff, WOODFORK was insulted by Defendants' supervisor who referred to his hands as "filthy paws."
34. That Plaintiff, WOODFORK, was once told along with other African Americans to "swing back to your home- monkeys".
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35. That Defendants' supervisors, C.J. Stunwold referred to Plaintiff, WOODFORK, as a "lazy nigger'' in the presence of coworkers.
36. That Defendants, their agents would routinely make racially offensive comments such as "them were the good old days," referring to the period of black slavery.
37. That said race discrimination and racial hostility is openly displayed and ongoing in nature to the present, and Defendants and their agents condone such conduct and refuse to take necessary action to prevent or correct the discrimination and racial harassment directed at African Americans and other minorities and those who associate with them.
38. That all of these and similar incidents have created a hostile and offensive work environment for African American employees and other minorities, including Plaintiffs.
39. That both Plaintiffs and others have complained to Defendants' management about discrimination, harassment and inferior terms and conditions of employment. Plaintiff, WOODFORK, also filed grievances with his Union and management regarding these issues. Nonetheless, Defendants failed to take effective remedial action.
40. That Defendants' illegal conduct was motivated by evil motive and intent and -9-

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was in reckless and callous indifference to the federally protected rights of Plaintiffs and other minority workers.
41. That Defendants' treatment of Plaintiffs and other minorities was motivated by racial animus and Defendants and its agents acted with racial animus directed toward African Americans and other minorities in violation of the law.
42. That the race discrimination and harassment that Plaintiffs and other minorities were subjected to in the hands of Defendants, their agents, representatives and employees is persistent in nature, unwelcome, extremely offensive, humiliating, and had the effect of creating a hostile and intimidating work environment for Plaintiffs and other minorities.
43. That said continuous and persistent race discrimination and harassment adversely affected the terms and conditions of Plaintiffs' employment with Defendants.
44. That as a direct and proximate result of said unlawful employment practices and disregard for Plaintiffs' rights and sensibilities, Plaintiffs have lost and will continue to lose substantial income, including but not limited to, wages, fringes, pension, seniority benefits, and other employment benefits that are due them.
45. That as a further direct and proximate result of said unlawful employment -10-

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practices Plaintiffs have suffered the indignity of discrimination, invasion of their right to be free from discrimination and great humiliation which is manifest in physical illnesses and emotional stress on the relationships between Plaintiffs and their friends and family.
46. That as a further direct and proximate result of said unlawful employment practices, Plaintiffs have suffered extreme mental anguish, outrage, severe anxiety about their future and ability to support themselves, harm to their employability and earning capacity, painful embarrassment among friends and co-workers, damage to their reputation, disruption of their personal lives, and loss of enjoyment of the ordinary pleasures of life.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that the Court provide the following equitable and legal relief:
a. Advance this case on the docket, order a speedy hearing at the earliest practicable date and cause this case to be expedited in every possible way.
b. Certify this case as a class action; c. Enter judgment that Defendants' acts and practices as set forth herein
are in violation of the laws of United States; d. Enter preliminary and permanent relief enjoining the discriminatory
conduct necessary to end Defendants' discriminatory practices and prevent current and future harm; e. Award Plaintiffs and the class lost wages, including back pay, front
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pay and lost fringe benefits, and including, without limitation, any lost benefits that would otherwise have been included in the 401 (k) pension plans of Plaintiffs and the class which resulted from the discrimination with applicable statutory interest;

f.

Order Defendants to offer Plaintiffs and the class positions that they

would have had absent discrimination with retroactive raises and

seniority and benefits.

g. Award Plaintiffs and the class costs of litigation, including reasonable attorneys' fees and expert fees, expenses and costs;

h. Award Plaintiffs and the class compensatory and punitive damages.

1.

Grant such other and further relief as this court deems just and

proper.

COUNT II PATTERN AND PRACTICE COMPLAINT OF RACE DISCRIMINATION IN PROMOTIONS, WORK ASSIGNMENTS, COMPENSATION, TRANSFERS, DISCIPLINE AND THE TERMS
AND CONDITIONS OF EMPLOYMENT
47. That the preceding paragraphs are incorporated by reference here. Plaintiffs
bring this count on their own behalf and on behalf of the class.

48. That Defendants engaged in a pattern and practice of race discrimination in connection with promotions, work assignments, compensation, transfers, discipline and terms and conditions of employment. For example:

49. That Defendants' supervisors would routinely subject African-Americans to unequal discipline. In other words, Defendants would discipline African Americans more
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harshly for the same infractions for which white employees would not be disciplined or given less severe discipline. For example, an African American employee would arrive to work late at the same time as white co-worker. Defendants' supervisors would observe both employees arrive late but would only discipline the African American employee. On one occasion, Plaintiff arrived late work along with a white employee, DAVID MEYERS. Plaintiff was issued a written warning while MEYERS was not. Defendants engage in this practice to discriminatorily populate the personnel files of African Americans with write-ups in a bid to subject them to inferior terms and conditions of employment and to terminate them in retaliation for complaining.
50. That in connection with the several write-ups that he was being issued by Defendants through his supervisor, Plaintiff, HAWKINS, was once told by his disciplining supervisor, TOM MAYER, "it is not me [MAYER], they [Defendants] are harassing me to write you up "
51. That Defendants' supervisor, Craig Phillips, once told Plaintiff, WOODFORK, that he [Phillips] could terminate WOODFORK's employment for any reason, including not liking the color of his eyes. Phillips made this statement while his gaze was fixed on WOODFORK's arm with his skin exposed, thus suggesting that he could terminate WOODFORK for the color of his skin.
52. That on one occasion, Plaintiff, WOODFORK was forced to go home for the -13-

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day because he was late by one minute in contrast to the treatment given by Defendants to similarly-situated white employees who are typically not disciplined for such infractions.
53. That Defendants discriminate against African Americans in work assignments in that whites drivers are assigned newer trucks while African American drivers with more seniority are assigned to use older, less efficient trucks; white drivers are assigned better and more lucrative truck routes than African American drivers with more seniority.
54. That Defendants discriminate against African Americans with respect to compensation in that African Americans are paid less that their white counterparts in the same position. Defendants systematically discriminate against African Americans in compensation by delaying the effective dates of their pay increases and benefits.
55. That Defendants have four different job classifications namely, Recycling, Residential, Commercial, Roll-off, with each classification commanding different compensation. African Americans are disproportionately assigned to the lower paying classifications, sometimes in complete disregard of their seniority rights. That conversely, white employees are hired directly into or transferred to the higher paying classifications with less seniority. Roll-off is the most sought-after classification and neither Plaintiff was offered a position in Roll-off while similarly-situated whites, some with less seniority, were hired directly or transferred into Roll-off by Defendants.
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56. That Defendants discriminatorily promote white employees to the position of supervisor while not permitting African Americans into supervisory positions.
57. That Defendants discriminate against African Americans who have temporary medical work restrictions. Defendants would routinely refuse to assign restricted African American employees light duty work thus causing them to lose pay. This is in contrast to the treatment of medically restricted white employees who are routinely assigned light-duty work by Defendants.
58. That Plaintiffs were subjected to different wages and inferior benefits at various times during their employment with Defendants along with other African American employees.
59. That both Plaintiffs and others complained to Defendants' management about discrimination, harassment and inferior terms and conditions of employment. Plaintiff, WOODFORK, also filed grievances with his Union and management regarding these issues. Nonetheless, Defendants failed to take effective remedial action.
60. That instead of taking effective corrective action directed at eliminating race discrimination, Defendants' practice is to retaliate against Plaintiffs and others for complaining about discrimination by disciplining, suspending and ultimately terminating them.
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61. That Defendants terminated HAWKINS' employment on April 5, 1999 and WOODFORK's employment on December 21, 1999.
62. That Defendants' treatment of Plaintiffs was motivated by evil motive and intent and was in reckless and callous indifference to Plaintiffs' federally protected rights.
63. That Defendants' conduct was motivated by racial animus and Defendants and their agents acted with racial animus directed toward African Americans and other minorities in violation of the law.
64. That said continuous and persistent race discrimination and harassment adversely affected the terms and conditions of Plaintiffs' employment with Defendants.
65. That as a direct and proximate result of said unlawful employment practices and disregard for Plaintiffs' rights and sensibilities, Plaintiffs have lost and will continue to lose substantial income, including but not limited to, wages, fringes, pension, seniority benefits, and other employment benefits that are due them.
66. That as a further direct and proximate result of said unlawful employment practices Plaintiffs have suffered the indignity of discrimination, invasion of their right to be free from discrimination and great humiliation which is manifest in physical illnesses
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and emotional stress on the relationships between Plaintiffs and their friends and family.

67. That as a further direct and proximate result of said unlawful employment practices, Plaintiffs have suffered extreme mental anguish, outrage, severe anxiety about their future and ability to support themselves, harm to their employability and earning capacity, painful embarrassment among friends and co-worker, damage to their reputation, disruption of their personal lives, and loss of enjoyment of the ordinary pleasures of life.

PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that the Court provide the following equitable and legal relief:

a. Advance this case on the docket, order a speedy hearing at the earliest practicable date and cause this case to be expedited in every possible way.

b. Certify this case as a class action;

c. Enter judgment that Defendants' acts and practices as set forth herein are in violation of the laws of United States;

d. Enter preliminary and permanent relief enjoining the discriminatory conduct necessary to end Defendants' discriminatory practices and prevent current and future harm;

e. Award Plaintiffs and the class lost wages, including back pay, front pay and lost fringe benefits, and including, without limitation, any lost benefits that would otherwise have been included in the 401 (k) pension plans of Plaintiffs and the class which resulted from the discrimination with applicable statutory interest;

f.

Order Defendants to offer Plaintiffs and the class positions that they

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would have had absent discrimination with retroactive raises and seniority, pay raises and benefits.
g. Award Plaintiffs and the class costs of litigation, including reasonable attorneys' fees and expert fees, expenses and costs;
h. Award Plaintiffs and the class compensatory and punitive damages.

i.

Grant such other and further relief as this court deems just and

proper.

COUNT Ill COMPLAINT OF ANDERSON HAWKINS OF HARASSMENT
DUE TO RACE AND INFERIOR TERMS AND CONDITIONS OF EMPLOYMENT
68. That Plaintiff, HAWKINS, incorporates the preceding paragraphs. Plaintiff
brings this count individually.

69. That Defendants' conduct subjected Plaintiff, HAWKINS, to harassment due to his race.

70. That Defendants further subjected Plaintiff, HAWKINS, to illegal, inferior and miserable terms and conditions of employment due to his race in violation of Title VII and 42 USC. 1981.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiff, HAWKINS, respectfully prays that the Court provide the following equitable and legal relief:

a

Advance this case on the docket, order a speedy hearing at the

earliest practicable date and cause this case to be expedited in every

possible way.

b. Award Plaintiff, HAWKINS, appropriate back-pay, future earnings and reimbursement for income and fringe benefits lost to the present with applicable statutory interest.

c. Award Plaintiff, HAWKINS, costs of litigation, including reasonable attorneys' fees and expert fees and expenses.

d. Award Plaintiff, HAWKINS, a judgment against Defendants for compensatory damages.

e. Grant judgment against Defendants for punitive damages for willful and wanton conduct.

f.

Enter an order requiring Defendants to implement effective steps to

eliminate race discrimination from Defendants' organizations.

g. Grant such other and further relief as this court deems just and proper.

COUNT IV COMPLAINT OF LAWRENCE WOODFORK FOR HARASSMENT DUE TO RACE AND INFERIOR TERMS AND CONDITIONS OF EMPLOYMENT
71. That Plaintiff, WOODFORK, incorporates the preceding paragraphs. Plaintiff
brings this count individually.

72. That Defendants' conduct subjected Plaintiff, WOODFORK, to harassment -19-

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due to his race.

73. That Defendants' conduct subjected Plaintiff, WOODFORK, to illegal, inferior and miserable terms and conditions of employment in violation of Title VII and 42 U.S. C. 1981.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, WOODFORK, respectfully prays that the Court provide the following equitable and legal relief:

a. Advance this case on the docket, order a speedy hearing at the
earliest practicable date and cause this case to be expedited in every possible way.

b. Award Plaintiff, WOODFORK, appropriate back-pay, future ea1i gs
and reimbursement for income and fringe benefits lost to the present with applicable statutory interest.

c. Award Plaintiff, WOODFORK, costs of litigation, including reasonable attorneys' fees and expert fees and expenses.

d. Award Plaintiff, WOODFORK, a judgment against Defendants for compensatory damages.

e. Grant judgment against Defendants for punitive damages for willful and wanton conduct.

f.

Enter an order requiring Defendants to implement effective steps to

eliminate race discrimination from Defendants' organizations.

g. Grant such other and further relief as this court deems just and proper.

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COUNTV COMPLAINT OF ANDERSON HAWKINS
FOR RETALIATION
74. That Plaintiff, HAWKINS, incorporates the preceding paragraphs. Plaintiff
brings this count individually.

75. That Defendants' conduct in disciplining Plaintiff, harassing him, subjecting

him to illegal and inferior terms and conditions of employment and ultimately terminating

him amounts to retaliation in violation of Title VII and Section 1981.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, HAWKINS, respectfully prays that the Court provide the following equitable and legal relief:

a. Advance this case on the docket, order a speedy hearing at the
earliest practicable date and cause this case to be expedited in every possible way.

b. Award Plaintiff, HAWKINS, appropriate back-pay, future earnings and reimbursement for income and fringe benefits lost to the present with applicable statutory interest.

c. Award Plaintiff, HAWKINS, costs of litigation, including reasonable attorneys' fees and expert fees and expenses.

d. Award Plaintiff, HAWKINS, a judgment against Defendants for compensatory damages.

e. Grant judgment against Defendants for punitive damages for willful and wanton conduct.

f.

Enter an order requiring Defendants to implement effective steps to

eliminate race discrimination from Defendants' organizations.

g. Grant such other and further relief as this court deems just and proper.

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COUNT VI COMPLAINT OF LAWRENCE WOODFORK
FOR RETALIATION
76. That Plaintiff, WOODFORK, incorporates the preceding paragraphs. Plaintiff
brings this count individually.

77. That Defendants' conduct in disciplining Plaintiff, harassing him, subjecting

him to illegal and inferior terms and conditions of employment and ultimately terminating

him amounts to retaliation in violation of Title VII and Section 1981.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, WOODFORK, respectfully prays that the Court provide the following equitable and legal relief:

a. Advance this case on the docket, order a speedy hearing at the earliest practicable date and cause this case to be expedited in every possible way.

b. Award Plaintiff, WOODFORK, appropriate back-pay, future earnings and reimbursement for income and fringe benefits lost to the present with applicable statutory interest.

c. Award Plaintiff, WOODFORK, costs of litigation, including reasonable attorneys' fees and expert fees and expenses.

d. Award Plaintiff, WOODFORK, a judgment against Defendants for compensatory damages.

e. Grant judgment against Defendants for punitive damages for willful and wanton conduct.

f.

Enter an order requiring Defendants to implement effective steps to

eliminate race discrimination from Defendants' organizations.

g. Grant such other and further relief as this court deems just and proper.

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RESPECTFULLY SUBMITTED,

ANDERSON HAWKINS,

LAWRENCE WOODFORK,

BY ~~~Dr\11

Uche 0. Asonye

r

Their attorney

06209522 ASONYE & ASSOCIATES 11 South LaSalle Street, Suite 2140 Chicago, Illinois 60603 (312) 795-911 0

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JURY DEMAND NOW COME Plaintiffs, by counsel, and hereby demand a trial by jury in the above entitled cause of action.
RESPECTFULLY SUBMITTED, ANDERSON HAWKINS, LAWRENCE WOODFORK
06209522 ASONYE & ASSOCIATES 11 South LaSalle Street, Suite 2140 Chicago, Illinois 60603 (312) 795-9110
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CHAJ;''

DISCRIMINATION

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is

affected

by

the
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Pr1vac. ,t _~.__./__

o-t

1974;-

See -··

Privacy

Act

Stateaent

bt

0 FEPA
!lQ EEOC

CHARGE HUMBER
210992754

Human Rights
StaJe or localAgency, ifany

and EEOC

!KJ RACE

0 COLOR

0 SEX

0 RELIGION

0 NATIONAL ORIGIN

\

IXJ RETALIATION 0 AGE

0 0 DISABILITY

OTHER (Spocf/'y)

I

THE PARTICULARS ARE (Ir .tJdditional spac~ is ne-ettt!d, attllch ~:rtra sht!t:t(s)):

I. I had been employed by Respondent as a Driver from July 5, 1994 until my discharge on May 5, 1999. During my employment, I had been subjected to harassment, including disciplinaries, and different wages.

I was verbally discharged, when I called Management to report that I was two minutes away from the workplace experiencing car trouble.

Regarding harassment, since sometime in 1997, and continuing, White Drivers repeatedly made derogatory/offensive remarks toward Black
Drivers in the presence of Management, without consequence. Also, I
repeatedly received written Warning Notices (January 1998 thru April 1999) and a two-day suspension without pay (January 1999) allegedly for work rule violations related to attendance.

Regarding different wages, I was denied pay commensurate with my promotion/classification to Residential Driver (November 3, 1997) and seniority; my grievance request was denied in May 1999.

II. I believe that I was discharged, harassed, disciplined/suspended,
and paid different wages because of my race, Black, in violation of Title VII of the Civil Rights Act of 1964, as amended.

I also believe that my discharge was retailatory in violation of
Title VII, in that I was associated with a coworker who filed an EEOC of rae discrimination a

thet~~~J~~;~~~~~~5;~~B~~th~ait;J address or telephone number and cooperate fully with the• in

belief.

I declare under penalty of perJury that the and correct.

COMPLAINANT L~ ·. ·.-,~- L· 7• vt~· ...~,:.'

BEFORE ME THIS DATE CHICAGO DlSTR1CT OFFIC~

r'"' . . Case: 1:01-cv-01731 Document #: 1 Filed: 03/12/01 Page 26 of 36 PageID #:26

CHA~C )F DISCRIMINATION

ENCY

CHARGE NUMBER

~t of 1874; 811 Privacy Act State•ent ~

FEPA
EEOC 210A00513

of Human Rights SIIJit or locoJAgency, ifany

and EEOC

0 SEX

0 0 RELIGION

NATIONAL ORIGIN

0 AGE

0 0 DISABILITY

OTHER(Sp6aJ1)')

DATE
EARLIEST

11/05/1999

PARTICULARS ARE (Ir additional space 11 neett~d, •tt.cb ~tztr• Ml~tttt(s}}:
• I have been employed by the Respondent since September 2, 1998. Since the beginning of my employment have been subjected to different terms and conditions of employment. On July 6, 1999 I was disciplined and suspended for one day for not having the proper shoes. On July 7, 1999 I was disciplined and suspended for one day for failure to notify Respondent of my return to work. On July 19, 1999 I was disciplined for failing to notify a supervisor of an absence. On July 20, 1999 I was disciplined for failing to notify Respondent of an absence before 2:00 P.M .• On August 11, 1999 I was disciplined and suspended for one day for being late two minutes to work. On or about September 1999 I was disciplined and suspended for one day for cutting bushes and being late to a safety meeting.
II. I believe I have been discriminated against on the basis of my race, black, in violation of Title VII of the Civil Rights Act of 1964, as amended, in that:
a) I have been disciplined and suspended for activities that non-black individuals participate in but have not been disciplined for;
b) Non-black individuals recieve better trucks and truck routes than black employees;
c) Non-blacks with less seniority receive better wages than blacks; and

charge and that 1n1onaat1on and belief.
AND SWORN TO BEFORE UE THIS DATE

Case: li/~2/2~BB 1:B018:-5clv-017737319D25o3c5u56ment #: 1 Filed: 03W/1E2DD/0IN1GTPOaNge 27 of 36 PageID #:27
(

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Chicago District Office

w.,, soo Madisoo S<.. Sui" 2800

Chicago. JL 60661

I'll' (312) 3))·271)

•

Too, ;lrl> lll·l<Zr

ENFORCeMENT FAX: (3l2) 886-1168

LEOAL FAX' (3!2) l$J.&$SS

EEOC Charge Number 210992754
Anderson Hawkins 2907 W. 79"' Street Chk:ago, IL 60652

Charging Party

Groot Recycling and Waste Services, Inc. 1759 Elmhurst Road Elk Grove Village, IL f:I.XYJ7

Respondent

DETERMINATION
Underthe allthority vested in me by the Commission's Procedural Regulations, 1issue the following determination on the merits of the subject charge fileq under Title VII of the Civil Rights Act of 1964, as amended (Title VII).
The Respondent is an employer within the meaning of Title VII and all requirements for coverage have been met.
The Charging Party alleged that Respondent discriminated against him on the basis of his race, Black, in violation of Title VII, in that he was subjected to harassment and discipline, was paid different wages, and was discharged. CP further alleged that Respondent retaliated against him in
thcu ii: Jischargc:d }Jinl.
I have determined that the e1•idence obtained in the investigation establishes reasonable 'ause to believe that Respondent discriminated agamst Charging Party, and a class of individuals, in that it harassed them and subjected them to a hostile work environment based on their ra'e and national origin, in violation of Title VII.
This determination is final. When the Commission finds that violations have occurred, it attempts to eliminate unlawful practices by informal methods of conciliation. Therefore, I invite the parties to JOin with the Commission in reaching a just resolution of this matter. Disclosure of information obtained during the conciliation process wrll be made only in accordance with the Commission's Procedural Regulations (29 CFR Part 1601.26).

EXH"(BIT
I Q~

..

Case: 1t:::n0:::11: :-uc. v-01731 Document #: 1 Filed: .0-3w/E1D2ll/I0NG1 IPONage 28 of 36 PageID #:28 AGE -0'-4---
(\

•

EEOC Charge Number 210992754 Page 2 of2

If the Respondent wishes to accept this invitation to participate in conciliation efforts, it may do

so at this time, by proposing terms for a conciliation agreement; that proposal should be provided

to the Commission representative within I4 days of the date of this determination. The remedies for

violations of the statutes we enforce are designed to make the identified victims whole and to

provide corrective and preventive relief. These remedies may include, as appropriate, an agreement-

by the Respondent not to engage in unlawful employment practices, placement of victims in

positions they would have held but for the discriminatory actions, back pay. restoration of lost

benefits, injunctive relief, compensatory and/or punitive damages, and notice to employees of the

violation and the resolution of the claim.

-- .. ..... ..

-· ~-~·-

---·~--snotiJdt!!'e Re5ponaent have further questions regarding the conciliation process, or the conciliation

terms it would like to propose, we encourage it to contact the assigned Commission representative.

Should there be no response from the Respondent in 14 days, we may conclude that further

conciliation efforts would be futile or nonproductive.

On Behalf of the Commission

. Case: 1:01-cv-01731 Document #: 1 Filed: 03/12/01 Page 2't9iEoff3E6 IPVaEgeDID-F#E:2B9"'r"f'tw'l G -<·}< (

U.S. EQI.ui.L EMPLOYMENT OPPO:RTUNITY (;uMMISSION

Chicago District Office

soo w..,Ma<Lsoo st.. S•i« zsoo n. Ch~<ogo. 00061
PH: 012) 35l·27B
mo: (112) :t'5.l·2421

ENfURCF.MENT t•AXo (.112) HRG-1168 l.W.~I- ~AX' (Ill) :t>:l-X»>

EEOC Charge Number 210A00513
Lawrence J. Woodfork 2014 Dodge Street Evanston, IL 60201
vs.
Groot Recycling and Waste Services, Inc. 1759 Elmhurst Road Elk Grove Village, IL 60007

Charging Party Respondent

UETERMINA'fiON
Under the authority ve~ted in mo by the Commission's Proccduml Regulations, I issue the following determination on the merits of the subject charge filed under Title VJJ of the Civil Rights Act of 19()4, as amended (Title VII).
The Respondent is an employer within the meaning of Title Vll and all requirements for covcroge have been met.
The Charging Party alleged that Respondent discriminated again~l him on the basis of' his race,
Alack, in violation of Title vrr, in that he was paid different wages, haras.~cd, and subjected to
different terms and conditions of employment and disciplined.
I have detennincd that the evidence obtained in the investigation establishes re.,sonablc cnuse tn believe thut Respondent discriminated against Charging Pmty, and a clas~ of individuals, in that it harassed them and subjected them to a hostile work environment based on their race and national nrigin, in violation <>!Title Vff.
This determination is final. When the Commission fird~ that violations have occurred, it attempts to eliminate unlawful practices by infonnal methods of conciliation. Therefore, I invite the parties to join with the C'..ommission in reaching a ju.~t n:soluuon of thi~ matter. Disdosure of infcrmatton obtained during the conciliation precess will be made only m accordance with the Commission's Procedural Regulations (29 C!-'J{ Partl601.26).

t:XHIBIT
I q

Case: 1:01-cv-01731 Document #: 1 Filed: 03/12/01 Page 30 of 36 PageID #:30

.'i.·..:,·..

-
EEOC Charge Number 210AOOS13 Page 2 of2

If lhe Respondent wishes to accept this invitation to pllrticipHte in conciliation effons, it may do
so at this time, by proposing tcnns for a conciliation agreement; that propo.-;al should \Je provided
to the Commission representative within 14 days of the date of this determination. The remedies for violutions of the ijtalutes we enforce are designed to make the identified victims whole and to provide corrective and preventive relief. These remedies may include, as appropriate, an agreement by the Respondent not to engage in unlawful employment pn~ctices, placement of victims itr positions they would have held but for the discriminatory actions, back pay, restoration of lost benefits, injunctive relief, compensatory and/or punitive damages, and notice to employees of the violation and the resolution of the claim.
Should the Respondent have further questions regarding the conciliation process, or the conciliation tcrtns it would like to propose, we encourage it to contact the assigned Commission representative. Should there be no response from the Respondent in 14 days, we may conclude d1at further conciliation efforts would be futile or nonproductive.

On Behalf of the C01mnission

Case: 1:01-cv-01731 Document #: 1 Filed: 03/12/01 Page 31 of 36 PagEeNIDT#E:3R1 ED DEC! 9 20

r " --~

I .
'·

('' ltlU'!H'lD DEC 1 9 2000

U.S. EG1.. .L EMPLOYMENT OPPORTUNITY _JMMISSION

Chicago District Office

500 West Madison St., Suite 2800

Chicago. IL 60661

PH: (3121 353-2713

TDD: (3121 353-2421

ENFORCEMENT FAX: (3121 886-1168

LEGAL FAX: (3121 353-8555

Anderson Hawkins c/o Uche 0. Asonye, Esq. Asonye & Associates
11 S. LaSalle Street, Suite 2140 Chicago, IL 60603
RE: Charging Party: Respondent: EEOC Number:

Anderson Hawkins Groot Recycling & Waste Services, Inc.
210992754

Dear Mr. Hawkins:
Attached please find a Notice of Right to Sue issued on your behalf in the above referenced matter. The Commission's efforts to conciliate this matter with the respondent has been unsuccessful. The Commission has determined that it will not bring a lawsuit against the respondent. By issuing the attached Notice of Right to Sue, the Commission is terminating its processing of your charge.
The attached Notice of Right to Sue entitles you to pursue private litigation
concerning your allegations against respondent(s) within 90 days of your receipt of
this letter. If you do file suit based on this Notice of Right to Sue, it is requested that you provide us with a copy of the complaint you file in court.

~f11/'&t /j~

Date

/

Enclosures

0 behalf of the Commission:

?kMt/u?_

8 hn P. Rowe

ijS

istrict Director ·

I oEXHIBIT . :.·;~~;,~

Case: 1:01-cv-01731 Document #: 1 Filed: 03/12/01 Page 32 of 36 PageID #:32

. . - - - - - - - - - - ' ·;~------------1~"'~._;,__ _ _ _ _ _ _ __

'

\UAL EMPLOYMENT OPPORTUNITY COM!

:ION

NOTICE OF RIGHT TO SUE -- TITLE VII I ADA; ADEA
(Conciliation Failure)

To: Anderson Hawkins 2907 W. 79'" Street Chicago, IL 60652
Certified No.: 7000 0600 0022 1004 8875

From:
Equal Employment Opportunity Commission 500 West Madison, Suite 2800 Chicago, Illinois 60661

I

I On behalf ofa person aggrieved whose identity is CONFIDENI7AL

(29 C.F.R. /601. 7(a))

Charge Number
210992754

EEOC Representative
Jose Romo, Investigator

( See the additional information attached to this form )

Telephone Number
(312) 353-8175

The Commission has found reasonable cause to believe that your charge of employment discrimination is true but has not entered into a conciliation agreement to which you are a party because attempts to achieve such a voluntary settlement with respondent(s) have been unsuccessful.

The Commission has determined that it will not bring a civil action against the respondent(s) and accordingly is issuing this Notice of Right to Sue. With the issuance of this Notice the Commission terminates its process with respect to your charge, except that the Commission may seek status as intervenor if you decide to sue on your own behalf as described below.

If you want to pursue your charge further, you have the right to sue the respondent(s) named in your charge in United States District Court. IF YOU DECIDE TO SUE, YOU MUST DO SO WITHIN NINETY (90) DAYS FROM YOUR RECEIPT OF THIS NOTICE OF RIGHT TO SUE: OTHERWISE YOUR RIGHT TO SUE IS LOST.

Your suit may include any allegation contained in your charge of employment discrimination or any matter which was or should have been discovered by the Commission during its investigation of your charge.

Enclosures Information sheet Copy of Charge
cc: Respondent(s) Groot Recycling & Waste Services, Inc.
EEOC Form 161-A (Test 10/94)

Case: 1:01-cv-01731 Document #: 1 Filed: 03/12/01 Page 33 of 36 PageID #:33

(

U.S. EQL

. EMPLOYMENT OPPORTUNITY , .JMMISSION

Chicago District Office

500 West Madison St., Suite 2800

Chicago, IL 60661

PH: (312) 353-2713

TDD: 13121 353-2421

ENFORCEMENT FAX: 13121886-1168

LEGAL FAX: (312) 353-8555

Lawrence J. Woodfork 2014 Dodge Street Evanston, IL 60201
RE: Charging Party: Respondent: EEOC Number:

Lawrence J. Woodfork Groot Recycling & Waste Services, Inc. 210A00513

Dear Mr. Woodfork:
Attached please find a Notice of Right to Sue issued on your behalf in the above referenced matter. The Commission's efforts to conciliate this matter with .the respondent has been unsuccessful. The Commission has determined that it will not bring a lawsuit against the respondent. By issuing the attached Notice of Right to Sue, the Commission is terminating its processing of your charge.
The attached Notice of Right to Sue entitles you to pursue private litigation concerning your allegations against respondent(s) within 90 days of your receipt of this letter. You may wish to retain a private attorney at this time. The Commission maintains a list of attorneys who have indicated an interest in pursuing cases involving employment discrimination. The list is attached for your convenience.
If you do file suit based on this Notice of Right to Sue, it is requested that you provide us with a copy of the complaint you file in court.

Enclosures

behalf of the Commission:

/<:)~~

John P. Rowe

'7

District Director

Case: 1:01-cv-01731 Document #: 1 Filed: 03/12/01 Page 34 of 36 PageID #:34
t
UAL EMPLOYMENT OPPORTUNITY COMIV ON
NOTICE OF RIGHT TO SUE -- TITLE VII I ADA 1ADEA
(Conciliation Failure)

To: Lawrence J. Woodfork 20 14 Dodge Street Evanston, IL 60201
Certified No.: 7000 0600 0022 1004 8882

From: Equal Employment Opportunity Commission 500 West Madison, Suite 2800 Chicago, Illinois 60661

'----' On behalfofa person aggrieved whose identity is CONFIDEN11AL
(29 C.F.R. 1601.7(a))

Charge Number

EEOC Representative

210A00513

Jose Romo, lnvesti ator

( See the additional information attached to this form I

Telephone Number (312) 353-8175

The Commission has found reasonable cause to believe that your charge of employment discrimination is true but has not entered into a conciliation agreement to which you are a party because attempts to achieve such a voluntary settlement with
respondent(s) have been unsuccessful.

The Commission has determined that it will not bring a civil action against the respondent(s) and accordingly is issuing this Notice of Right to Sue. With the issuance of this Notice the Commission terminates its process with respect to your charge, except that the Commission may seek status as intervenor if you decide to sue on your own behalf as described below.

If you want to pursue your charge further, you have the right to sue the respondent{s) named in your charge in United States District Court. IF YOU DECIDE TO SUE, YOU MUST DO SO WITHIN NINETY (90) DAYS FROM YOUR RECEIPT OF THIS NOTICE OF RIGHT TO SUE: OTHERWISE YOUR RIGHT TO SUE IS LOST.

Your suit may include any allegation contained in your charge of employment discrimination or any matter which was or shoul have been discovered by the Commission during its investigation of your charge.

Enclosures Information sheet Copy of Charge
cc: Respondentlsl Groot Recycling & Waste Services, Inc.
EEOC Form 161-A (Test 10/94)

Case: 1:01-cv-01731 Document #: 1 Filed: 03/12/01 Page 35 of 36 PageID #:35

JS 44
(Rev. 07189)

CIVIL COVER SHEET

The JS-44 civil co~er ~heet and the informatio~ ~ontained herein neither :eplace nor. supplement the filin_g and ~ervice of pleading~ or other papers a~ required by law, except as provided by lcx:al rules of court. Th1s form. approved by the Jud1c1al Conference of the Un1ted State~ m September 1974. IS requ1red for the use of the Clerk of Court tor the purpose of initiating the civil docket
sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I (a) PLAINTIFFS

DEFENDANTS

Anderson Hawkins

Groot Industries, Inc. and

Lawrence Woodfork, on behalf of

Groot Recycling and Waste Services,

themselves and all others similarly

Inc.

situated
(b) COUNTY OF RESIDENCE OF FIRST LISTED PlAINTIFF
(EXCEPT IN U.S. PlAINTIFF CASES)

Cook

I )F~ r;. :~-~~F COUNTY OF RESIDENC

T

0 DEFElNZ--3-.-1--

CASES ONLY)

urr••irftNOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED

(C) ATTORNEYS (FIRM NAME. ADDRESS, AND TELEPHONE NUMB A)

ATTORNEYS (IF KNOWN)

Uche 0. Asonye

MAR 1 3 91rid E. Metz MAO!STRATEJUOOEA.SFM.A.N-

ASONYE & ASSOCIATES

SEYFARTH & SHAW

·• •

11 South LaSalle, Suite 2140

55 East Monroe, Suite 4200

Chicago, IL 60603

(312) 795-9110 Chicago, IL 60603

(312) 346-8000

II. BASIS OF JURISDICTION

(PLACE AN • IN ON£ BOX ONLY)

(J 1 U.S. Government Plaintiff

illi3 Federal Question (U.S. Government Not a Party)

r·l 2 U.S. Government Defendant

[_] 4 Diversity {Indicate Citrzenshrp of Partres rn Item Ill)

Ill. CITIZENSHIP OF PRINCIPAL PARTIES

(PLACE AN • IN ONE BOX

{For Diversity Cases Only)

FOR PLAINTIFF AND ONE BOX FQH DEFENDANT)

Citizen of This State Citizen of Another State

PTF DEF fJ1 lJ1
2 c c [__; 2

Citizen or Subject of a Foreign Country

LJ3 03

Incorporated or Principal Place of Business In This State
Incorporated and Principal Place of Business In Another State
Foreign Nation

0 TF DEF 'J 4 U4 :J 5 :-·: 5
LJ 6 ~ "] 6

IV. CAUSE OF ACTION (CITE THEUS. CNIL STATUTE UNDER WHICf1 YOU ARE FIUNGANOWRITE A BRIEF STATEMENT OF CAUSE ooNOTCITEJuArsorcnoNALSTArurEsuNLEssorveRsrrYJ Cause of action for Plaintiffs and all other
similarly situated arises under Title VII of the Civil Rights Act,
Section 2000e, as amended and 42 u.s.c. Section 1981, as amended.

persons
42 u.s.c.

v. NATURE OF SUIT (PLACE AN X IN ONE BOX ONLY)

CONTRACT
D 110 Insurance
nD 120 Manne 130 Molter Act
0 140 Negotoable Instrument 0 150 Recovery ol Overpayment
& Enlorcemont ol Jud<;jmont [J 151 Medrcare Act [] 152 Recovery ol Defaulted Student Loans (Excl Veterans)
U 153 Recovery of Overpayment
ol Veteran's Benef,ts [] 160 Stockholders" Surts
0 190 Other Contract
D 195 Contract Product Llabiloly
REAL PROPERTY
0 210 Land Condemnation 0 220 Foreclosure 0 230 Aenl Lease & Etectment 0 240 Torts to Land
D 245 Tort Product Lrabilrty [] 290 All Other Aaal Property

VI. ORIGIN

J(J 1 Original

0

Proceeding

TORTS

PERSONAL INJURY
[] 310 Arrplane
[_] 315 A1rplano Product
Uabc~ty
0 320 Assau~. UOOI &
Slander
L"_l 330 Federal Employers· LJaMty
lJ 340 Manne
f] 345 Manne Product
Uab<~ty
rJ 350 Motor Vehrcle U 355 Motor Vehicle
Product Uability
D 360 Other Personal
lnJli'Y

PERSONAL INJURY
lJ 362 Personal InJuryMOO Malprachce
~-] 365 Personal lnruryProduct Uability
r-J 368 Asbestos Personal
lnrury Product Uat><lrly
PERSONAL PROPERTY lJ 370 Other Fraud
LJ 371 Trvlh 10 Lendmg
[l 380 Other Personal Property Damage
[__] 385 Property Damage Product Uabohty

CIVIL RIGHTS
lJ 441 Votong XJ 442 Employment
(] 443 Hous'ng/ Accommodatrons
0 444 Welfar.., 0 440 Oth-er Civil Rights

PRISONER PETITIONS
lJ 5t0 Motrons to Vacate Sentence Habeas Corpus
[-J 530 General
rJ 535 Death Penally
[J 540 Mandamus & Olh(or L") 550 CMt Right•

FORFEITURE /P£NALTY

~ ~10 Agriculture
C 620 Other Food & Drug 0 625 Drug Aerated Serwre ol
Property 21 USC 881

0 630 Liquor Laws

0 640 R.A & Truck

0 650 Airline Regs

lJ 600 Occu~atrO,al

rl,

Sa e~y!Health

690 Other

LABOR

0 710 Fa1r Labor Standards
"" 0 720 Labor/Mgmt RelaMns
D 730 Labor/Mgmt Aeportong & Disclosllre Act
0 740 Railway Labor
"" 0 790 Other Labor litigation
0 791 Empl Rat Inc
Secunty Act

BANKRUPTCY
[J 422 Appo:>al 2ll usc 156
fJ 423 Withdrawal
28USCt57·
PROPERTY RIGHTS
(] 820 Copyrtghts i.l 830 Patent
U 840 Trademark
SOCIAL SECURITY [] 861 HIA (t395N) [] 862 Blac~ Lung (923) [] 863 OIWC/OIWW ;(405(g))
0 864 SSID Toile XVI
[J 865 ASI (405(g))
FEDERAL TAX SUITS
0 870 Taxes (U S Plarntorf
or Defendant) D871 lAS- Third Parly
26 usc 7&09

OTHER STATUTES
[] 400 State Aeappor1ronmonl
U 410 Anrrrrust U 430 Banks and Bankong LJ 450 Commerce/ICC Rates/el U 460 Deportatoon U 470 Racketeer lntluenced and
Corrupt Orgamzauons [ l 810 Selocti~e Servoce lJ 850 Sacuritres/Com--nodrtros/
Exchange lJ 875 Customer Challenge
12 usc 3410 [] 891 Agncu~ural Acts
LJ 892 Economic StabrlrzaMn
Ad CJ 893 Enwonmental Matters
[] 894 Energy Allocatron Act
U 895 Froodom ot
ln!ormatron Act [] 900 AppealofFooDetermonatro
Uroder Eqval Access to
JuSIIC<l [l 950 Constilut1onalrty o!
Stale Statures
I] 890 Other Sta1ulory Aclrons

2 Removed from State Court

(PLACE AN x IN ONE BOX ONLY)

Transferred from

0 3 Remanded from

D 4 Reinstated or

0 5 another district

Appellate Court

Reopened

(specify)

0 6 MultidistrictM
litrgation J"l

Appeal to Drstnct 0 7 ,Judge from
Magistrate Judgment

VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION

COMPLAINT:

E UNDER F.R.C.P: 23

DEMAND$

Check YES only if demanded in complaint:

JURY DEMAND:

Xl YES 0 NO

VIII. REMARKS In response to General Rule 2.21 D(2) this case

is not a refiling of a previously dismissed action

is a refiling of case number

of Judge

DATE
•,'"\

UNITED STATES DISTRICT COURT

··.1

Case: 1:01-cv-01731 Document #: 1 Filed: 03/12/01 Page 36 of 36 PageID #:36

UW~ED STATES DISTRICT COUr"'"' NOkfHERN DISTRICT OF ILLINtnS
In the Matter of: Anderson Hawkins, Lawrence Woodfork on behalf of
themselves and all others similarly situated

V.

Groot Industries, Inc., et al.

JUDGE MORAN

APPEARANCES ARE HEREBY FILED BY THE UNDERSIGNED AS ATTORNEY(S) FOR:

Anderson Hawkins, Lawrence Woodfork and all others similarly situated

-cTI n. lkli. SIGNATURE

(A)

a o ('?-, •

.J ,

"" NAME Uche 0. Asonye

v I l"-

u FIRM ASONYE & ASSOCIATES

sTREET ADDREss II South LaSalle Street, Suite 2140

CITYtsTATEtzlr Chicago, Illinois 60603

TELEPHO'OCNUMBER (312) 795-9110

062009522 IDENTIFICATION NUMBER(SEE ITEM 4 ON REVERSE)

MEMBER OF TRIAL BAR~ TRIAL ATTORNEY?

YES

D

NO

D

YES

D

NO

D

SIGNATURE

(C)

1\:AME

FIRM

STREET ADDRESS

CITY/STATE/ZIP

TELEPHONE NUMBER

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)

MEMBER OF TRIAL BAR7 TRIAL ATTORNEY~ DESIGNATED AS LOCAL COUNSEL?

YES

D

NO

D

YES

D

NO

D

YES

D

NO

D

!lfU'Hs;t!:fl SIGNATURE

. -•'·· ' ' I

(B)

NAME

. " ''"" ' " '>nn1

FIRM

STREET ADDRESS

CITY/STATE/ZIP

TELEPHONE NUMBER

!DENT!FICATION NUMBER (SEE ITEM 4 ON REVERSE)

J

. .. -·~

·-·~

-;;.";-•

,;___

.. ._
-,

(_,-_;

::::;,

MEMBER OF TRIAL BAR?

YES

TRIAL ATTORNEY?

YES

DESIGNATED AS LOCAL COUNSEL?

YES

SIGNATURE

(D)

NAME

FIRM

STREET ADDRESS

CITY/STATFJZIP

TELEPHONE NUMBER

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)

D NO D D NO D D NO D

MEMBER Ol' TRIAL BAR7 TRIALATTORN!0Y7 DESIGNATED AS LOCAL COUNSEL7

YES

D NO D

YES

D NO D

YES

D NO D

 
 Case: 1:01-cv-01731 Document #: 35 Filed: 08/05/02 Page 1 of 13 PageID #:288
Minute Order Form (06/97)
United States District Court, Northern District of Illinois

Name of Assigned Judge ~or Magistrate JUdge
CASE NUMBER

Joan B. Gottschall
01 c 1731

Sitting Judge if Other than Assigned Judge
DATE

8/5/2002

CASE TITLE
MOTION:

Hawkins vs. Groot Industries, et a!.
[In the followmg box (a) mdtcate the party fihng the motiOn, e.g., plamttff, defendant, 3rd partyplamttff, and (b) state bnefly the nature of the motion being presented.]

DOCKET ENTRY:

(I) D

Filed motion of [use listing in "Motion" box above.]

(2)

D

Brief in support ofmotion due ___.

(3)

D

Answer brief to motion due___. Reply to answer brief due___.

(4)

D

Ruling/Hearing on ___ set for ___ at _ _.

(5)

•

Status hearing set for 8/29/2002 at 9:30A.M..

(6)

D

Pretrial conference[heldlcontinued to] [set for/re-set for] on _ _ _ set for _ _ _ at _ _ _.

(7) D

Trial[set for/re-set for] on _ _ _ at _ _ _.

(8)

D

[Bench/Jury trial] [Hearing] held/continued to _ _ _ at _ _ _.

(9)

D

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to] D FRCP4(m) D General Rule 21 D FRCP4l(a)(l) D FRCP4l(a)(2).

(I 0) • [Other docket entry] Enter Order. Plaintiffs' motion for leave to file their first amended class action complaint [9-1] is granted in part and denied in part. A status hearing is set for August 29, 2002 at 9:30a.m.

• (11)

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

mailed by judge's staff. counsel by telephone.

AUG 0 '1 1.00!

courtroom deputy's initials

O·oi •.•:~:;

35

Case: 1:01-cv-01731 Document #: 35 Filed: 08/05/02 Page 2 of 13 PageID #:289

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANDERSON HAWKINS and LAWRENCE

)

WOODFORK, on behalf ofthemselves and all )

others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

GROOT INDUSTRIES, INC. and GROOT

)

RECYCLING AND WASTE SERVICES, INC., )

)

Defendants.

)

Case No. 01 C 1731

ORDER

Plaintiffs Anderson Hawkins and Lawrence Woodfork, both African Americans, filed a

class action complaint against their former employers, Groot Industries, Inc. ("Groot"), and

Groot Recycling and Waste Services, Inc. ("Groot Recycling"), alleging racial and national origin

harassment and discrimination in violation ofTitle VII of the Civil Rights of 1964, 42 U.S.C. §

2000e et seq., and 42 U.S.C. § 1981. Now before the court is plaintiffs' motion to amend the

complaint, adding Hispanic plaintiffs. For the following reasons, the motion is granted in part

and denied in part.

Background

Both Hawkins and Woodfork filed charges with the EEOC against Groot Recycling.

(Compl. Exs. 1-2.) On the pre-printed form, when prompted to indicate the type of

discrimination to which they were allegedly subjected, Hawkins checked the "race" and

"retaliation" box, while Woodfork checked only the "race" box. (!d.) Neither plaintiff checked

the "national origin" box. Hawkins's charge claims that "White Drivers repeatedly made

derogatory/offensive remarks toward Black Drivers in the presence of Management, without

Case: 1:01-cv-01731 Document #: 35 Filed: 08/05/02 Page 3 of 13 PageID #:290
consequence." (Compl. Ex. 1.) He describes further discriminatory treatment, including the fact that he was "discharged, harassed, disciplined/suspended, and paid different wages because of my race, Black ...." (!d.) He makes no mention of Hispanic employees in his EEOC charge. Woodfork's charge similarly contains no mention of Hispanic employees. In fact, Woodfork claims, among other things, that "[n]on-blacks with less seniority receive better wages than blacks" and "receive better work assignments." (Compl. Ex. 2.)
After an investigation of Hawkins's and Woodfork's charges, the EEOC issued determinations in which it concluded that there was "reasonable cause to believe that [Groot Recycling] discriminated against [plaintiffs], and a class of individuals, in that it harassed them and subjected them to a hostile work environment based on their race and national origin, in violation of Title VII." (Compl. Exs. 3-4 at 1.) This was the first mention of"national origin" harassment in the case, although the EEOC did not define the "class of individuals" that was subjected to such discrimination. The EEOC determinations included no mention of harassment against employees of Hispanic origin. The EEOC issued Notices of Right to Sue to both Hawkins and Woodfork.
In the original complaint, Hawkins and Woodfork claim to bring the case on behalf of a class consisting of"African American persons who have been employed by Defendants in their Chicago area facilities on or after July 5, 1994 and who are subject to Defendants' employment and human resources policies and practices, including but not limited to current former employees, and who have been, continue to be, or may in the future be, adversely affected by Defendants' racially discriminatory policies and practices ...." (Compl. ~ 10.) They allege two counts on behalf of the class: (I) "a pattern and practice of harassment due to race and national
2

Case: 1:01-cv-01731 Document #: 35 Filed: 08/05/02 Page 4 of 13 PageID #:291
origin and subject[ion of] African Americans and Hispanics to inferior terms and conditions of employment due to their race and national origin" (id. ~ 23); and (II) "a pattern and practice of race discrimination in connection with promotions, work assignments, compensation, transfers, discipline and terms and conditions of employment" (id. ~ 10). Hawkins and Woodfork also include separate claims of racial harassment and discrimination (Counts III and IV) and retaliation (Counts V and VI), respectively, on behalf of themselves individually.
The 77-paragraph complaint includes one specific factual allegation that mentions Hispanic employees, found in the harassment claim in Count I. In paragraph 28, plaintiffs allege "[t]hat on a daily basis, employees of Hispanic origin were similarly referred to as 'spiks' and 'wetbacks."' Specific reference to Hispanic employees is absent from the remaining counts.
Plaintiffs now seek to amend the complaint, adding two Hispanic plaintiffs, Enrique Hernandez and Javier Guerrero, as class members and class representatives. The class has changed accordingly, to consist of"all African-American and Hispanic persons who have been employed by Defendants ...." (Am. Compl. ~ 14.) Neither Hernandez nor Guerrero filed a charge with the EEOC. In Counts I and II of the amended complaint, plaintiffs make the same harassment and discrimination allegations as found in the original complaint, with additions to include Hispanic employees. The only additional specific allegation in Count I is "[t)hat on a daily basis, employees whose national origin is Mexico, were called 'dumb Mexicans' and 'stupid Mexican."' (Id. ~ 35.)
In Count II, plaintiffs allege generally, among other things, that "African-Americans and Hispanics are paid less that [sic] their white counterparts in the same positions." (!d.~ 64.) Specifically, plaintiffs allege that Guerrero "was terminated for mixing garbage while similarly-
3

Case: 1:01-cv-01731 Document #: 35 Filed: 08/05/02 Page 5 of 13 PageID #:292
situated white employees routinely engaged in similar conduct and were neither disciplined or [sic] terminated by Defendants." (Id. ~59.) Hawkins's and Woodfork's individual harassment and discrimination claims in Counts ill and IV remain the same, respectively. Identical harassment and discrimination claims have been added by Hernandez (Count V) and Guerrero (Count VI) individually. Finally, Hawkins's and Woodfork's individual claims of retaliation (Counts VII and VIII) remain. In both versions of the complaint, plaintiffs allege each count as a violation of both Title VII and§ 1981. Discussion
Rule 15(a) of the Federal Rules of Civil Procedure provides that "a party may amend the party's pleadings only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires."1 The court may deny a motion for leave to amend "when there is undue delay, bad faith, dilatory motive, undue prejudice to the opposing party, or when the amendment would be futile." Bethany Pharmacal, Inc. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001 ).
Defendants claim that allowing plaintiffs to amend would be futile and would create undue prejudice. Essentially, defendants present three arguments. First, they contend that adding the proposed Hispanic plaintiffs at this point would not comply with the requirements for permissive joinder pursuant to Rule 20(a) of the Federal Rules of Civil Procedure. Second, with respect to the Title VII claims only, they argue that the proposed Hispanic plaintiffs' claims would not survive a motion for summary judgment because neither filed a charge with the
1Defendants have filed an answer in this case; therefore, plaintiffs may not amend "as a matter of course." Fed. R. Civ. P. 15(a).
4

Case: 1:01-cv-01731 Document #: 35 Filed: 08/05/02 Page 6 of 13 PageID #:293
EEOC. Finally, with respect to the § 1981 claims, defendants contend that it would be unfair to allow the proposed Hispanic plaintiffs' claims to relate back to the date the African-American plaintiffs filed the original complaint. I. Rule 20(a)
Rule 20(a) allows permissive joinder of plaintiffs if they assert claims "arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all those persons will arise in the action." Rule 21 authorizes the court to dismiss any misjoined party or claim at any stage of a lawsuit. It appears that defendants argue that allowing plaintiffs to amend their complaint would be futile because the new complaint would be subject to a holding of misjoinder. Misjoinder occurs when parties fail to satisfy either of the two requirements set forth in Rule 20(a). See Bailey v. N Trust Co., 196 F.R.D. 513, 515 (N.D. Ill. 2000). First, there must be a right to relief arising out ofthe same transaction or occurrence, or series oftransactions or occurrences. Second, there must be a question oflaw or fact common to all the plaintiffs. See id. Federal policy favors joinder, id., and the district court has wide discretion when deciding whether joinder of parties is proper. Gorence v. Eagle Food Ctrs., Inc., No. 93 C 4862, 1996 WL 734955, at *3 (N.D. Ill. Dec. 19, 1996).
The amended complaint satisfies both prongs of the test. The complaint alleges a pattern and practice ofboth harassment and direct discrimination against African Americans and Hispanics. Such allegations of a "system of decision-making" (/d. ~ 15), or widely-held policy of discrimination, constitute a single transaction for Rule 20(a) purposes. See, e.g., Best v. Orner & Wasserman, Nos. 92 C 6477, 93 C 2875, 1993 WL 284145 (N.D. Ill. July 27, 1993). Moreover, the allegations refer to discrimination during the same general time period, allege the same type
5

Case: 1:01-cv-01731 Document #: 35 Filed: 08/05/02 Page 7 of 13 PageID #:294
of adverse employment actions, allege the same type of discrimination (race),' and appear generally to accuse the same set of supervisors at the same work location, all factors favoring joinder. Berry v. Ill. Dep't ofHuman Servs., No. 00 C 5538,2001 WL 111035, at *17 (N.D. Ill. Feb. 2, 2001) (listing factors); cf id. (holding joinder inappropriate where 33 plaintiffs were employed at six different facilities, complained of different types of mistreatment by different supervisors, and alleged different bases for discrimination against them). Finally, the allegations of the African-American and Hispanic plaintiffs involve the same issues oflaw and fact, such as whether defendants' conduct amounts to a hostile work environment in violation of Title VII or§ 1981.
The court disagrees with defendants' argument that allowing the amendment would be unduly prejudicial because "some of the evidence relevant to and admissible in [the case of one set of plaintiffs] ... will not be relevant to or admissible in [the case of the other set of plaintiffs]." Henderson v. AT&T Corp., 918 F. Supp. 1059, 1063 (S.D. Tex. 1996). In fact, even if the trial ofthe African-American plaintiffs' claims were separate from the Hispanic plaintiffs' trial, evidence of defendants' misconduct toward every plaintiff (or any other employee, for that matter) would likely be deemed admissible under Federal Rule of Evidence 404(b), so long as that evidence is not used to prove defendants' action in conformity with the wrongdoing, but is used for some other purpose such as proof of intent. For example, evidence of defendants' racial
2Courts hold that discrimination against Hispanics constitutes racial discrimination, as well as national origin discrimination. See, e.g., Ulane v. Eastern Airlines, Inc., 581 F. Supp. 821, 823 (N.D. Ill. 1984) ("The trend among the Judges of this district has been to consider discrimination against Hispanics as racial discrimination."), rev'd on other grounds, 742 F.2d 1081 (7th Cir. 1984). Thus,§ 1981, which generally only applies to racial discrimination, Jenkins v. Blue Cross Mut. Hasp. Ins., Inc., 522 F.2d 1235, 1240 n.8 (7th Cir. 1975), applies here.
6

Case: 1:01-cv-01731 Document #: 35 Filed: 08/05/02 Page 8 of 13 PageID #:295
discrimination against Hawkins may be admissible in Guerrero's separate trial to show that defendants intended to discriminate against him. Whether there is one trial or two, all of the evidence of intentional discrimination could well be admissible, and subject perhaps to a limiting instruction. Under these circumstances, there would be no added prejudice by trying the claims together.3 The court holds that joinder of the two sets of plaintiffs would be proper. II. Title VII Claims
Plaintiffs bringing a Title VII action in federal court must first file a timely charge of discrimination with the EEOC. Gorence v. Eagle Foods Ctrs., Inc., 242 F.3d 759,763 (7th Cir. 2001 ). Plaintiffs admit that neither Hernandez nor Guerrero filed charges with the EEOC, but they invoke the "single-filing rule" and argue that the Hispanic plaintiffs may rely on the charges filed by Hawkins and Woodfork. They may do so if "the individual claims of the filing and nonfiling plaintiffs ... have arisen out of sufficiently similar discriminatory treatment as those claims brought before the EEOC ...." Toney v. Rosewood Care Ctr., Inc., No. 98 C 693, 2001 WL 1105127, at *3 (N.D. Ill. Sept. 20, 2001). "The theory behind the rule is that the policies served by the EEOC charge and right-to-sue letter requirements-to give the employer notice of the grievance and to give both the employer and the EEOC an opportunity to settle disputes short oflitigation-may be accomplished without requiring each person with the same grievance to file a charge." !d.
In this case, the Hispanic plaintiffs' claims do not arise out of sufficiently similar discriminatory treatment as those allegations found in Hawkins's and Woodfork's EEOC
3Severing the cases for trial would be appropriate under Rule 42(b) of the Federal Rules of Civil Procedure if the evidence in one group of claims were not admissible in the other. See, e.g., Henderson, 918 F. Supp. at 1063.
7

Case: 1:01-cv-01731 Document #: 35 Filed: 08/05/02 Page 9 of 13 PageID #:296
charges. The African-American plaintiffs' EEOC charges alleged only racial harassment and discrimination because they are black. Plaintiff Hawkins also alleged retaliation. Neither plaintiff claimed national origin discrimination, and neither plaintiffmentioned any discrimination against Hispanic employees. In fact, Woodfork's charge complains that "non black" employees received better treatment than he did; this group necessarily includes individuals of Hispanic origin.
This is not the situation addressed by Jenkins v. Blue Cross Mut. Hosp. Ins., Inc. ("Jenkins IF'), 538 F.2d 164 (7th Cir. 1976), in which the plaintiff alleged both sex and race discrimination in her complaint, but failed to check the "sex" discrimination box in her EEOC charge. The Seventh Circuit held that, despite the omission, the plaintiffs claims in the EEOC charge that her superior "accused me of being a leader of the girls on the floor" and that a ''white employee who associated with me might have been denied her promotion because of her association with me" actually charged sex discrimination. !d. at 169. In this case, even liberally construing Hawkins's and Woodfork's charges, the court carmot interpret them to charge racial or national origin discrimination against Hispanic employees. Furthermore, the EEOC's determinations that defendants harassed and discriminated against a class of individuals based on race and national origin made no mention of Hispanic employees as potential victims. Judging from the parties' pleadings, it appears that the first mention of discrimination against Hispanic employees appeared in plaintiffs' original complaint. Defendants could not have been put on notice by the EEOC charges that they might be subject to Title VII claims by Hispanic employees.
8

Case: 1:01-cv-01731 Document #: 35 Filed: 08/05/02 Page 10 of 13 PageID #:297
Plaintiffs rely on Orlowski v. Dominick's Finer Foods, Inc., 937 F. Supp. 723, 734 (N.D. Ill. 1996), for the proposition that "the proposed Plaintiffs may properly rely on the charges of the original Plaintiffs." (Pis.' Reply at 3.) Orlowski is distinguishable. In that case, female plaintiffs brought a class action against Dominick's Finer Foods, Inc. "on behalf of all female employees of Dominick's, and made this class allegation in each of their EEOC charges." Orlowski, 937 F. Supp. at 734. The "proposed" plaintiffs were female employees, just like the "original" plaintiffs. The court had little trouble holding that the proposed additional plaintiffs' claim arose from sufficiently similar discriminatory treatment as the original plaintiffs, and thus their failure to timely file EEOC charges did not undermine their case. In this case, the "proposed" plaintiffs are not members of the "original" class-African-American employees-but are of Hispanic origin. Plaintiffs motion to amend is denied with respect to all of Guerrero's and Hernandez's Title VII claims, including both the class action (Counts I and II) and individual (Counts VII and VIII) counts. III. Section 1981 Claims
The Seventh Circuit has held that§ 1981 is available to a plaintiff"regardless of whether one has pursued his Title VII administrative remedies." Jenkins II, 538 F.2d at 166. Defendants argue, however, that "it would be unfair to Groot to allow the proposed Hispanic plaintiffs' § 1981 claims to relate back to the date the African-American plaintiffs filed this action-March 12, 2001." (Defs.' Resp. at 6.) Section 1981 plaintiffs in Illinois are subject to a two-year limitations period. Vakharia v. Swedish Covenant Hasp., 190 F.3d 799, 807 (7th Cir. 1999). Defendants argue that until plaintiffs filed their motion to amend on December 5, 2001, neither Hernandez nor Guerrero had brought any discrimination claim against defendants and no other
9

Case: 1:01-cv-01731 Document #: 35 Filed: 08/05/02 Page 11 of 13 PageID #:298
Hispanic person had been proposed as a plaintiff. Defendants ask the court to deny plaintiffs' motion to amend and allow Guerrero and Hernandez to file a separate § 1981 complaint, "using the date of that complaint as the date for calculating the statute oflimitations." (Id. at 7.) The court declines defendants' request.
"Under the relation-back doctrine, an amended complaint is deemed filed on the date the original complaint was filed for the purpose of tolling the statute oflimitations." Moore v. Allstate Ins. Co., 928 F. Supp. 744,752 (N.D. Ill. 1996). Rule 15(c)(2) provides that an "amendment of a pleading relates back to the date of the original pleading when ... the claim or defense asserted in the amended pleading arose out ofthe conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading ...." "The main consideration is whether the general fact situation provided the defendant with adequate notice of the new matters alleged in the amendment." Commonwealth Fin. Corp. v. USAmeribancs, Inc., No. 86 C 6181, 1987 WL 19142, at *3 (N.D. Ill. Oct. 20, 1987).
Courts in this district have applied a four-factor inquiry when determining whether the addition of claims by new plaintiffs relate back. Olech v. Village of Willowbrook, 138 F. Supp. 2d 1036, 1044 (N.D. Ill. 2000). The factors favor relation back where (1) the new plaintiffs claim arose out of the 'same conduct, transaction or occurrence' set forth in the original complaint; (2) the new plaintiff shares an 'identity of interest' with the original plaintiff; (3) the defendants have 'fair notice' of the new plaintiffs claim; and (4) the addition of the new plaintiff will not cause the defendants prejudice. /d. There appears to be much overlap between these factors. See id. The most important question is whether the original complaint places the defendant "on notice that it might be required to defend its employment practices from charges of
10

Case: 1:01-cv-01731 Document #: 35 Filed: 08/05/02 Page 12 of 13 PageID #:299
class-based discrimination." Paskuly v. Marshall Field & Co., 646 F.2d 1210, 1211 (7th Cir. 1981).
In this case, Hernandez's and Guerrero's class action claims of race discrimination and harassment (Counts I and II) relate back to the original complaint. In the original complaint, there is only one specific reference to discrimination against Hispanics. However, elsewhere the complaint alleges that "Defendants engage in a pattern and practice of harassment due to race and national origin and subjected African Americans and Hispanics to inferior terms and conditions of employment due to their race and national origin." (Compl. ~ 23.) In addition, the original complaint alleges "a pattern and practice of race discrimination against African Americans and persons of Hispanic origin in connection with work assigmnents, compensation, transfers, promotions and discipline." (!d. ~ 9.) Furthermore, there are numerous allegations of harassment and discrimination against African Americans and "other minorities." (Id. ~~ 29, 37, 38, 40-42, 63.)
It is clear that the Hispanic plaintiffs' claims arose out of the same alleged conduct as found in the African-American plaintiffs' original complaint-a pattern and practice of harassment and discrimination against both black and Hispanic employees. Each set ofplaintiffs share an "identity of interests" because they are the alleged victims of the same type of conduct. See Olech, 138 F. Supp. 2d at 1045 n.5. Moreover, the allegations in the original complaint are sufficient to put defendants on "fair notice" of race and national origin claims by Hispanic plaintiffs. Finally, besides defendants' objection to having a jury hear evidence of discrimination against both Hispanic and black employees (which the court rejects, see supra), they make no argument of unfair prejudice. The court holds that the addition of Hispanic plaintiffs to the class
11

Case: 1:01-cv-01731 Document #: 35 Filed: 08/05/02 Page 13 of 13 PageID #:300 relates back to the original complaint. Hernandez's and Guerrero's individual claims of harassment and discrimination also relate back, for the same reasons cited above. Therefore, plaintiffs' motion to amend is granted with respect to all claims pursuant to § 1981. Conclusion
For the foregoing reasons, plaintiffs' motion to amend their complaint is granted in part and denied in part. Plaintiffs may add Guerrero and Hernandez as plaintiffs and redefine the class to include Hispanic employees with respect to the § 1981 claims. However, plaintiffs may not add any Hispanic plaintiffs with respect to the Title VII claims.
ENTER:
DATE: August 5, 2002
12

 
 Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 1 of 30 PageID #:1848
Minute On:b" Form (06197)
United States District Court, Northern District oflllinois

NBme or Assigned Judge
or Magistrate Juda;e
CASE NUMBER

Joan B. Gottschall
01 c 1731

Sitting Judge If Other than Assigned Judge
DATE

3/31/2003

CASE TITLE
MOTION:

Hawkins, et a!. vs. Groot Industries, Inc., et al.
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature of the motion being presented.]

DOCKET ENTRY:

(1) 0

Filed motion of( use listing in "Motion" box above.]

(2) 0

(3)

0

Brief in support ofmotion due ___. Answer briefto motion due_ _. Reply to answer brief due___.

(4)

0

Ruling/Hearing on _ _ _ set for _ _ _ at~·

(5) 0

Status hearing[held/continued to] [set for/re-set for] on ___ set for _ _ _ at _ _ _.

(6) 0

Pretrial conference[heldlcontinued to] [set for/re-set for] on ___ set for _ _ _ at _ _ _.

(7) 0

Trial[set for/re-set for] on ___ at ___.

(8) 0

[Bench/Jury trial] [Hearing] held/continued to _ _ at ___.

(9) 0

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
0 FRCP4(m) 0 Local Rule 41.1 0 FRCP4l(a)(l) 0 FRCP4l(a)(2).

(10) •

[Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: Defendants' motion for swnmary

judgment against plaintiffAnderson Hawkins [26-1] is granted in part and denied in part, as is defendants' motion for swnmary

judgment against plaintiff Larry Woodfork [24-1].

• (11)

[For further detail see order attached to the original minute order.]

No notices required, advised in open courl

No notices required.

Notices mailed by judge's staff. ~----:!/'""""" counsel by telephone.

courtroom deputy's initials

lHOO:Il:IIHlS/0 ·s·n
).JUJlJ
SS :2 Wd I!: IIVH t:u

' - Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 2 of 30 PageID #:1849

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANDERSON HAWKINS, LAWRENCE

)

WOODFORK, ENRIQUE HERNANDEZ,

)

and JAVIER GUERRERO,

)

on behalf of themselves and all

)

others similarly situated,

)

)

No. 01C1731

Plaintiffs,

) Judge Joan B. Gottschall

)

Magistrate Martin C. Ashman

v.

)

)

GROOT INDUSTRIFS, INC. and GROOT

)

RECYCLING AND WASTE SERVICES,

)

INC.,

)

)

Defendants.

)

MEMORANDUM OPINION & ORDER

Plaintiffs Anderson Hawkins and Larry Woodfork have sued their former

employer(s), Groot Industries, Inc. and Groot Recycling and Waste Services, Inc.

(collectively "Groot"), for various violations of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. § 1981.1 In the first amended

complaint, Hawkins and Woodfork, who are black men, specifically raise individual

claims that (1) they were subjected to racial harassment and inferior terms and

conditions at Groot; (2) they were subjected to racial discrimination with respect to

discipline (and ultimately discharge) as well as promotions, work assignments,

1Enrique Hernandez and Javier Guerrero are also plaintiffs in the action, with claims against Groot for violations of Section 1981; their claims are the subject of Groot's other two pending motions for summary judgment. Plaintiffs' motion for class certification, filed several months after Groot moved for summary judgment against Hawkins and Woodfork, is also pending.

Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 3 of 30 PageID #:1850
.... -
compensation, transfers, and other terms and conditions of employment; and (3) they were disciplined, harassed, and ultimately terminated in retaliation for opposing discrimination. In separate motions, Groot moved for summary judgment against Hawkins and Woodfork.2 For the reasons explained below, Groot's motion for summary judgment against Hawkins is granted in part and denied in part, as is its motion for summary judgment against Woodfork. Analysis
The standard for summary judgment is well-known. Summary judgment is proper if "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether the movant is entitled to summary judgment, the court examines the admissible evidence in the light most favorable to the nonmoving party, drawing any reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To avoid summary judgment, the party bearing the burden of proof on an issue must affirmatively show the existence
of a genuine issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S.
~root's motions break down Hawkins and Woodfork's claims very discretely: (1) racial discrimination, (2) termination, (3) discrimination in pay, (4) discrimination in promotion or transfer, (5) discrimination in truck and route assignments; (6) refusal to assign to light duty; (7) retaliatory discharge; and (8) hostile work environment. Hawkins and Woodfork each responded by defending their claims for: (a) hostile work environment; (b) termination; (c) retaliation; and (d) unequal compensation (Hawkins only). The court will address the claims under the plaintiffs' broader characterization.
2

Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 4 of 30 PageID #:1851
317, 322-23 (1986). But the nonmovant's own deposition or affidavit may provide
sufficient affirmative evidence to survive summary judgment. Courtney v. Biosound,
Inc., 42 F.3d 414,418 (7th Cir. 1994). "[U]nless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party," there is no issue for trial.
Anderson, 477 U.S. at 248. Significantly, however, courts apply the summary judgment
standard "with added rigor in employment discrimination cases, where intent and
credibility are crucial issues." Courtney, 42 F.3d at 418 (internal quotation marks and citations omitted). Indeed, the Seventh Circuit has stated "that a grant of summary
judgment which turns on the issue of discriminatory intent should be approached with
'special caution."' Id. at 423 (citations omitted).
With this standard in mind, the court examines Groot's motions for summary judgment against Hawkins and Woodfork.3
3J'he parties' briefing of these motions made the court's job particularly onerous. For example, the response briefs submitted on behalf of Hawkins and Woodfork (which are nearly identical) were virtually devoid of citations to the record, and devoted less than three pages out of nineteen to legal argument. Similarly, contrary to the local rules and this court's standing order governing motions for summary judgment, plaintiffs' statement of additional material facts precluding summary judgment were not set forth in"short numbered paragraphs, generally limited to one fact per paragraph." See
Standing Order Regarding Mot. Summ. J., Oct. 14, 1999 (Gottschall, J.). Further, rather
than simply responding to the opponent's statement of facts with a straightforward "undisputed" or "disputed" with supporting citation(s), both the plaintiffs and defendants frequently found it necessary to insert improper legal argument into their responses or to respond "undisputed," yet add a litany of other facts to consider, which amounts to legal argument. Legal argument belongs in the briefs, not the statements of facts.
3

Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 5 of 30 PageID #:1852
I. Hostile Work Environment Claim Hawkins and Woodfork both contend they were subjected to a racially hostile
work environment at Groot created by their co-workers and supervisors.• To succeed on a hostile work environment claim, a plaintiff "must show that (1) he was subjected to unwelcome harassment; (2) the harassment was based on his race, (3) the harassment was severe [or] pervasive so as to alter the conditions of the employee's environment and create a hostile or abusive working environment; and (4) there is a basis for employer liability." Mason v. S. Ill. Univ., 233 F.3d 1036, 1043 (7th Cir. 2000). Groot argues for summary judgment on the grounds that neither Hawkins nor Woodfork were exposed to actionable harassment at Groot and even if they were, Groot is not legally responsible for such harassment. The court addresses each of these arguments in turn.
A. Actionable Harassment 1. Hawkins
Regarding Hawkins, Groot's chief argument is that Hawkins was able to testify only regarding a few specific harassing comments, and those few comments are insufficient to sustain a hostile work environment claim. The court disagrees.
'Although the plaintiffs contend that black and Hispanic drivers were subjected to a racially hostile work environment at Groot created by their co-workers and supervisors, only Hawkins' and Woodfork's respective individual hostile work environment claims are currently at issue.
4

-Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 6 of 30 PageID #:1853
Hawkins testified that his co-workers Bob Lewkowicz and Chris Lewkowicz, who are white, made racially derogatory comments every day in the drivers' room at Groot where the drivers were gathered before leaving on their routes. They repeatedly called Hawkins and other blacks "nigger," "monkey," "porch monkey," "f-g monkey," "chango" (a Spanish word for monkey), "Kobe Bryant," and "Buckwheat." Hawkins further testified these derogatory comments were made in the presence of Groot supervisors. Additionally, Hawkins testified that white supervisors contributed to the racially hostile work environment. According to Hawkins, supervisor Jim Dowling told him to watch his tan because he was getting darker, supervisor Tom Mayer called him "boy," and supervisor Craig Phillips said "Oh, I like that" when Bob Lewkowicz pretended to slap Hawkins.
Groot asserts that "Hawkins was unable to testify ... that either of the Lewkowiczes ever made any specific comment on any specific day in the presence of any other particular persons, including supervisors." (Defs.' Mem. Supp. Summ. J. re Hawkins at 10.) This argument falters. Hawkins testified that he was subjected to racial epithets on a daily basis. Where a hostile work environment claim involves ongoing conduct, a plaintiff "need not date stamp every incident." Ferguson v. Chicago Housing
Auth., 155 F. Supp. 2d 913, 916-17 (N.D. Ill. 2001) (citing Dey v. Colt Constr. & Dev. Co., 28
F.3d 1446,1457 (7th Cir. 1994)). While Hawkins' case undoubtedly would be stronger if he could provide more detail, his recollection as it stands raises a disputed issue of
5

Cas...e: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 7 of 30 PageID #:1854
material fact regarding the level of racial hostility in the work environment at Groot. Weighing evidence and evaluating the credibility of witnesses are issues for the trier of fact. Anderson, 477 U.S. at 255.
Groot also argues that the alleged comments made by the supervisors are not objectively racially offensive. Calling an adult black man "boy" strikes the court as an objectively, inherently offensive comment. A reasonable jury certainly could agree. Indeed, it is disconcerting that Groot suggests otherwise. Further, Hawkins' hostile work environment claim (regarding the conduct of both supervisors and co-workers) is buttressed by evidence from other drivers regarding the racial hostility of the work environment at Groot.5 For example, plaintiffs offer the affidavits of Anthony Alexandria and Joseph Esposito, two white drivers formerly employed by Groot.6 Alexandria attested that he heard Groot's white management employees, including Dowling, Phillips and C.J. Sturwold, call black employees "nigger" and "monkey." He further averred that Sturwold once said to him, "Anthony, we need to stick together because these black people can't do what we do." Likewise, Esposito attested that he
5For purposes of ruling on the motions for summary judgment, only admissible evidence is considered. Not all of the evidence offered by Hawkins and Woodfork is admissible. For example, the documents purporting to be the EEOC's notes from interviews of various Groot employees are unauthenticated, and thus have not been considered.
6Groot argues that such affidavits cannot be considered because the affiants failed to appear for their depositions. While Groot's frustration is understandable, its objection cannot be sustained. Groot will have the opportunity to cross-examine these witnesses at trial (assuming they appear).
6

Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 8 of 30 PageID #:1855
heard other Groot employees routinely call black employees "monkeys" while members
of Groot's management were present.
Although Groot argues to the contrary, such evidence is likely admissible as long
as Hawkins was aware of those drivers' experiences while he was employed at Groot?
True, Hawkins must produce admissible evidence that he personally was subjected to
discrimination. But in evaluating his hostile work environment claim, "the trier of fact
must examine the totality of the circumstances, including evidence of harassment directed at employees other than the plaintiff."" Lewis v. Triborough Bridge & Tunnel Auth., No. 97 Civ. 0607, 2000 WL 423517, at *5 (S.D.N.Y. Apr. 19, 2000) (citing Schwapp v.
Town ofAvon, 118 F.3d 106, 111-12 (2d Cir. 1997)); Smith v. Northeastern Ill. Univ., No. 98
C 3555, 2002 WL 377725, at *5 (N.D. Ill. Feb. 28, 2002). And although Groot fervently
disputes the truth of those affidavits and other evidence, (see, e.g., Defs.' Resp. Pls.' Rule
56.1(b)(3)(B) Statement ("Defs.' Resp. Pls.' SDF") at 'n 18-19), and argues that the
7There is no evidence before the court that Hawkins learned of others' experiences of harassment after Groot terminated him. Accordingly, construing the evidence in the light most favorable to Hawkins, the court assumes that he had knowledge of their experiences while he was at Groot.
8Groot's reliance on Cooper v. Federal Reserve Bank, 467 U.S. 867, 875 (1984) and Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355-56 (5th Cir. 2001) is misplaced. The excerpts from those opinions quoted by Groot were not addressing hostile work environment claims. To be absolutely clear, however, this order does not address whether plaintiffs will be able to establish that Groot engaged in a pattern or practice of discrimination. A determination regarding pattern and practice is distinct from a determination that the experiences of other employees, which plaintiffs knew about, are likely to be relevant and admissible with respect to plaintiffs' individual hostile work environment claims.
7

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testimony of various witnesses is contradictory, Groot's position simply reinforces the court's conclusion that a jury must evaluate the strength and weight of the evidence
•
regarding this claim. 2. Woodfork
Groot raises the same arguments for summary judgment against Woodfork as it did against Hawkins: that his testimony was not specific or detailed enough to support a hostile work environment claim. For the reasons explained above, Woodfork also raises a genuine issue of material fact regarding the level of racial hostility he experienced at Groot.
Woodfork, like Hawkins, testified that the Lewkowiczes called him racially derogatory names on a daily basis, including "nigger," "f----g nigger," "monkey," "f-----g monkey," "dumb nigger," "dumb monkey," and "chango." And like Hawkins, Woodfork testified that these racial slurs were made in the drivers' room where the drivers were assembled prior to leaving on their routes in the presence of Groot supervisors. Moreover, Woodfork's claim, like Hawkins, is bolstered by the experiences of other drivers.9
Further, Woodfork's testimony expressly implicated both supervisors and coworkers. For example, Woodfork testified that in or around the spring of 1999, in response to comments he made about slavery, white supervisor Sturwold said, "Hey
9As with Hawkins, there is no evidence before the court that Woodfork was unaware of the other drivers' experiences, so the court draws the reasonable inference that Woodfork had knowledge. ·
8

Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 10 of 30 PageID #:1857
that was the good old days, huh?" (Woodfork Dep. at 117:17-22; Woodfork's Resp. Defs.' Statement Undisputed Facts ("SUF") at, 149.) A few minutes later, Sturwold said "something to the effect that 'Well, it's good it's not like that now and ... there's no bias or no racism now and you don't have to worry about that now.' And he just sort of smiled and walked out, got in his truck, and left." (Woodfork Dep. at 119:6-14.) Earlier, in December 1998, white supervisor Phillips told Woodfork "that he could fire [Woodfork] for any reason. He could fire [Woodfork] if he didn't like the color of [Woodfork's] eyes." According to Woodfork, "Phillips raised his gaze from Woodfork's hands, to his chest, and then to his eyes while he made the comment." (Woodfork's Resp. Defs.' SUF at , 147A.) Groot, offering a racially-neutral explanation for Phillips' comment, claims that Phillips' gazing at Woodfork's skin does not give the comment an objectively racially offensive meaning. That is an argument Groot must save for the jury, together with its argument al?out the impact and meaning of Sturwold's comments.10
B. Employer Liability Groot also argues for summary judgment contending that even if Hawkins or Woodfork were subjected to a hostile work environment, Groot is not legally responsible for such harassment. That may turn out to be the case, but Groot has not yet met its burden. "[An] employer is liable for a hostile work environment created by
10Characterizing Sturwold's "good old days" comment as ambiguous, Groot argues that any possible racist meaning "was erased by the clear meaning of his alleged
comment that 'it's good it's not like that now."' (Defs.' Mem. Supp. Mot. Summ. J. re
Woodfork at 11) (emphasis added). But what Groot deems ambiguous might be quite clear to a jury, and vice versa.
9

Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 11 of 30 PageID #:1858
the employee's coworkers ... when the employee shows that his employer has 'been negligent either in discovering or remedying the harassment."' Mason, 233 F.3d at 1043 (citations omitted). But an "employer is essentially strictly liable if the employee's supervisor created the hostile work environment." Id. An employer may avoid liability for a supervisor's conduct, however, if it can establish what is known as the FaragherEllerth affirmative defense. In other words, provided that no tangible employment action resulted from the supervisor(s)' harassment, Groot can avoid liability for racial harassment by its supervisors by proving: "(a) that the employer exercised reasonable care to prevent and correct promptly [the] harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Mason, 233 F.3d at 1043 n.4 (internal quotation marks and citations omitted).
Regarding liability for the harassment by plaintiffs' co-workers, Groot is liable if it knew or should have known of the harassment, but failed to make efforts to stop it. Hostetler v. Quality Dining, Inc., 218 F. 3d 798, 811 (7th Cir. 2000). Although Groot argues that there is no admissible evidence that Groot supervisors ever heard the racial slurs made by the Lewkowiczes or other drivers, a jury could find otherwise. Both Hawkins and Woodfork testified that the racially derogatory comments were made in the drivers' room when supervisors were present. Although their testimony lacked details about specific occasions, that is an issue for a jury to handle. Besides, Woodfork testified that even when the supervisors were in the office adjacent to the drivers' room,
10

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they were only separated by a Plexiglas window. According to Woodfork, supervisors
must have been able to hear the daily barrage of racial slurs even in the office:
You got to take into consideration the way Chris [Lewkowicz] says it, okay? Chris is not saying 'you monkey' or you 'f----g monkey.' Chris is yelling it out on the top of his lungs, 'f-g monkey, f-g Chango.' Chris doesn't say anything quietly, he yells it at the top of his lungs. Everyone can hear what Chris says. You can hear it in the office, you can hear it in the break room. If you're coming up the stairs and the door is open, you can hear it coming out the door. He yelled it. Him and his brother. They never said it, they yelled it.
(Woodfork Dep. 54:20-55:8.) Other drivers also testified that supervisors were present when the harassment took place.11 And if the jury believes that supervisors not only
knew about, but were contributing to, the hostile work environment, Groot's argument
that it did not know, and could not have known, about the racial harassment of
plaintiffs by their co-workers may be further weakened. The jury will have to weigh
the evidence and make credibility determinations.
As for liability for alleged racial harassment by its supervisors, Groot argues that
the undisputed facts show it has established the Faragher-Ellerth affirmative defense.12
As stated above, to satisfy the first element of this affirmative defense, Groot must show
11Arguing that no reasonable jury could believe that racial comments were made in front of supervisors, Groot states that plaintiff Javier Guerrero testified that he never heard racial slurs while supervisors were present. Again, Groot's point highlights the need for a jury to hear the evidence. This court cannot weigh Guerrero's testimony against Hawkins' and Woodfork's and decide who is credible and who is not.
12Neither Woodfork nor Hawkins argued that the Faragher-Ellerth defense is inapplicable, so the court assumes for present purposes that the harassment did not result in a tangible job action against either Hawkins or Woodfork.
11

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that it exercised reasonable care to prevent and correct racial harassment. Employers who are able to establish this element frequently do so by proving that they had an express anti-harassment policy setting forth clear reporting procedures, and that they disseminated the policy to their employees. See, e.g., Shaw v. Autozone, Inc., 180 F.3d 806, 811-12 (7th Cir. 1999) ("[E]xistence of an appropriate anti-harassment policy will often satisfy this first prong.").
Attempting to do just that, Groot points out that its collective bargaining agreement with the drivers' union has an explicit non-discrimination policy. This is true, but all the provision says is that Groot and the Union agree not to unlawfully discriminate. Such a broad, general provision does not constitute a racial harassment policy. It neither explains racial harassment, nor offers employees any guidance regarding what they should do if they believe they have been subjected to racial harassment. Compare Molnar v. Booth, 229 F.3d 593, 601 (7th Cir. 2000) (general policy barring discrimination is not a sexual harassment policy, and is insufficient to establish first prong of defense) with Shaw, 180 F.3d at 811-12 (defendant satisfied first prong by adopting explicit antiharassment policy with specific, detailed reporting procedures, distributing it to each employee, and conducting training sessions on harassment).
Groot also notes that on June 29, 1998, it adopted a policy against sexual harassment, and shortly thereafter adopted a policy against discrimination. Despite Groot's argument to the contrary, however, it is disputed whether Groot made employees aware of these policies. Groot's assistant controller Georgine Wendell
12

Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 14 of 30 PageID #:1861
testified that both policies were posted in the drivers' room. But Hawkins testified that
he was never given a copy of a policy regarding racial discrimination, and that no such policy was posted in the drivers' room (although he had seen the policy against sexual
harassment posted there). Likewise, Woodfork testified that he had never seen the policy regarding racial discrimination, management never informed him that there was such a policy, and management never discussed reporting procedures for racial (or sexual) harassment with employees. This issue is both disputed and material, and therefore must be decided by the jury.13
Whether Groot will be able to satisfy the second prong of the Faragher-Ellerth affirmative defense, i.e., that the plaintiffs unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm , will depend in part on whether Groot is able to satisfy the first prong. Given that Groot has not yet successfully established the first prong, the court need not
address Groot's arguments regarding the second. Groot's motion for summary judgment against Hawkins regarding his hostile
13Groot also points to the grievance procedure in the collective bargaining agreement. But the grievance procedure was not explicitly created for handling discrimination complaints. It says nothing about racial harassment. Moreover, it sets forth a different reporting procedure than Groot's written policies against sexual harassment or discrimination. Indeed, if employees turned to the grievance procedure for instruction, they would believe that failure to raise complaints of racial harassment in writing with Groot within five days of experiencing such harassment would constitute a waiver of any claims. Groot certainly can raise the grievance procedure at trial, and plaintiffs' awareness of it, but the court will not grant summary judgment based on its existence.
13

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work environment claim is denied, as is Groot's motion for summary judgment against Woodfork regarding his hostile work environment claim. II. Discriminatory Discharge
Groot also seeks summary judgment against both Hawkins and Woodfork on their claims for discriminatory discharge. Normally to survive summary judgment on a discriminatory discharge claim, a plaintiff must show14 that (1) he belongs to a protected class; (2) he performed his job in accordance with his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) similarly situated employees outside the protected class received more favorable treatment. Curry v. Menard, Inc., 270 F.3d 473, 477 (7th Cir. 2001). "Establishing a prima facie case creates a presumption of discrimination and shifts the burden to the employer to produce evidence of a legitimate, race-neutral reason for the adverse action." Id. If that burden of production is met, "the plaintiff then has the burden to show that the stated nondiscriminatory reason is pretextual." Id.
Neither the first nor the third elements are in dispute for either plaintiff. As for the second element, both Hawkins and Woodfork contend that they were singled out for discipline, and ultimately termination, because of their race. Under such circumstances, "it makes little sense ... to discuss whether [they] were meeting [their]
14lmportantly, at this stage of the proceedings plaintiffs need not actually prove (or "show") anything. They face only "the substantially less demanding Rule 56 task of demonstrating the existence of a genuine issue of material fact to stave off summary judgment." Farrow v. Humana Health Plan, Inc., 69 F. Supp. 2d 1050, 1058 n.10 (N.D. Ill. 1999).
14

Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 16 of 30 PageID #:1863
employer's reasonable expectations." Id. (internal quotation marks and citation
omitted). Accordingly, despite Groot's argument to the contrary, neither Hawkins nor
Woodfork must show that he was meeting Groot's legitimate employment expectations
to establish a prima facie case. Id. The initial inquiry, therefore, is whether each
plaintiff has shown that he was treated less favorably than a similarly situated Groot
employee who is not a member of plaintiff's protected class.
Before making that inquiry, however, an explanation of Groot's progressive-
discipline policy is necessary. At all relevant times, Groot had written work rules
applicable to its drivers that addressed areas such as attendance and safety issues. The
relevant work rules regarding attendance stated:
(1) "Failure to notify the company not less than one hour before your regular show-up time when not reporting for work will result in a
warning notice." (Work Rule 1, Woodfork's Resp. Defs.' SUF at ,61.15) (2) "If you are off for any reason and you will be unable to report for work the following day you must notify the company by 2PM so that arrangements can be made to cover your absence." (Work Rule 1, id. at , 62.)
(3) "Late-no call before starting time will result in a warning notice." (Work Rule 2, id. at, 64.) (4) "More than one late, with call, in a one month period will result in a warning notice." (Work Rule 3, id. at , 65.) (5) "Are habitually absent from work irregardless1161.•• of the reasons." (Work Rule 4, id. at, 66.)
15Hawkins also admitted the language of these work rules in his response to defendants' statement of undisputed facts.
16Although not generally accepted, "irregardless" is a word. Merriam-Webster's Collegiate Dictionary 619 (lOth ed. 1999).
15

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(6) "[A] 4th warning letter within a 12 month period will result in a~ day
suspension." (Id. at 1f 68.)
(7) "[A] 5th warning letter in a 12 month period will result in the
termination of [the driver's] employment." (Id. at 1f 69.)
The attendance-and-absence reporting rules applied to mandatory safety meetings in addition to drivers' usual start times. Additionally, under the safety rules, drivers had to wear hard-soled, high-top work shoes. Athletic shoes or other soft-soled shoes were expressly prohibited. The safety rules explicitly stated that any employee who failed to
wear proper shoes "shall be sent home without compensation ...." (Id. at 1f 74.) A
plain reading of the work rules reveals that the rule about the fifth warning letter resulting in termination referred only to warning letters based on failure to comply with the attendance-and-absence reporting rules.
Those are the relevant written rules. How Groot implemented them in practice is one of the central issues in this case. It is undisputed that Groot did not strictly follow the written rules. For example, when confronted with the record of an employee who was not terminated after receiving five warning letters, Dowling answered: "Well, it's obvious we don't enforce the fifth warning letter ...." (Dowling Dep. at 103:9-11.) He further testified that the "real" number of warnings that would result in termination was probably more like seven or eight. Both Hawkins and Woodfork contend that in practice, Groot enforced the work rules more harshly against its black employees than against its white employees.
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That contention brings the court back to the issue of whether Hawkins or Woodfork can show that a similarly situated white employee was treated more favorably under Groot's progressive-discipline policy than they were. Regarding Hawkins' claim, Groot fired Hawkins on May 5, 1999 for cumulative violations of the attendance-and-absence reporting rules. Hawkins was supposed to report for work by 6:00 a.m. that day, but he called supervisor Dowling at 6:28 a.m. to report that his car had broken down. In response, Dowling informed him that he was terminated, effective immediately. That same day, supervisor Mayer wrote a termination letter to Hawkins, which, according to the May 5th letter, was Hawkins' sixth warning letter in a twelve month period. In actuality, it was at least Hawkins' eighth warning letter in the past year.17 The explanations for those warning letters included being late with no call, being late for a mandatory safety meeting (presumably with no call), missing another mandatory safety meeting, being a no-call/ no-show for work on two occasions, and being absent then failing to call by 2:00p.m. to report his status for the next work day.18
17Warning letters to Hawkins were dated: 5.23.98, 6.2.98, 11.12.98, 1.19.99, 4.8.99, 4.9.99, 4.16.99 and 5.5.99. There was another letter dated 5.19.98. That letter seems to overlap to some extent with the 5.23.98letter, and neither party argues there were nine letters in a twelve month period.
1%e warning letters to Hawkins dated June 2,1998 and January 19,1999 each state that Hawkins was being suspended for certain rule infractions. Hawkins submitted an affidavit and testified that he was never suspended while employed by Groot. That sworn testimony bars the argument raised in his response brief that he was suspended for rule infractions for which white employees received no suspension.
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Hawkins gives examples of at least eight white employees whom he believes were similarly situated and received more favorable treatment than he did: David Prowicz, Tom Sturm, Todd Lazansky, Carmen Murillo, John Humphreys, Tom Finnegan, Robert Whited and Randy Slagle. "[A]n employee need not show complete identity in comparing himself to the better treated employee, but he must show substantial similarity." Radue v. Kimberly-Clark Corp., 219 F.3d 612,618 (7th Cir. 2000). In disciplinary cases like this one, "a plaintiff must show that he is similarly situated with respect to performance, qualifications, and conduct. This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or their employer's treatment of them." Id. at 617 (internal citations omitted).
Under this standard, of those eight employees, only Finnegan, Prowicz and Sturm qualify as potentially similarly-situated. Humphreys had special licensing qualifications that Hawkins lacked. Lazanksy was a mechanic, not a driver, and thus was a member of a different union, was subject to a different collective bargaining agreement and had different supervisors. As for Whited, Sturm and Murillo, their absences were predominantly for medically-related reasons and they (evidently) followed the attendance-and-reporting procedures. Under the work rules, employees who are absent but follow the reporting procedures are not subject to a written warning unless their absences are deemed excessive. In contrast, employees who are late and
18

Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 20 of 30 PageID #:1867
fail to call before their start time are supposed to receive a written warning each time, as are employees who simply fail to report to work without calling. Sturm's, Murillo's and Whited's situations are not similar enough to Hawkins' to allow comparison, despite plaintiffs' suggestion to the contrary.
After reviewing the evidence presented regarding Prowicz, Finnegan and Slagle, although it is evident that Hawkins' claim is far from strong, he survives summary judgment. Comparing himself to Slagle does nothing to further his claim because Slagle never exceeded five written warnings in a twelve month period. Prowicz, however, received six written warnings in one twelve month period and was not terminated. Similarly, Finnegan received six attendance-related written warnings in Jess than twelve months and was not terminated (but he was terminated two weeks later upon receiving a non-attendance related warning letter for driving on the wrong side of the road). Hawkins also correctly points out that Finnegan received just one warning letter when, under a literal application of the work rules, he should have received three. But Hawkins omits the fact that he, too, escaped written warnings that he technically should have received; e.g., he was late without calling on at least two, if not three, occasions,19 and was not disciplined for any of those infractions.20
1~awkins admits he was not disciplined even though he was late without calling on 8.17.98 and 10.19.98. Hawkins also admits he was late on 1.12.99 and was not
n disciplined, but the record fails to indicate whether or not he called. (Hawkins' Resp. to
Defs.' SUF at 120, 123, 128.) 20Hawkins points to another incident, in which he arrived at work a few minutes
late, without calling ahead, and was disciplined whereas his white co-worker, Meyers, 19

Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 21 of 30 PageID #:1868
Groot argues that Hawkins clearly received more favorable treatment than Prowicz or Finnegan because he was not terminated until he accumulated eight written warnings. Although it is now known that the termination letter was at least Hawkins' eighth warning letter in a twelve month period, Groot's understanding on May 5th was that Hawkins' termination letter constituted his sixth written warning-and that strikes the court as the critical time of inquiry.
Did Prowicz and/or Finnegan, who were not terminated when they received their sixth warning letters, receive more favorable treatment from Groot than Hawkins, who was terminated? Or was Groot's implementation of its progressive-discipline policy riddled with inconsistencies that had nothing to do with race? Those are close questions which the court catmot resolve through summary judgment. Hawkins presents a triable issue of material fact regarding whether he received less favorable treatment than similarly situated white employees. Groot undoubtedly will argue that it had a legitimate, non-discriminatory reason for discharging Hawkins, i.e., his performance, and may well prevail.21 But not yet. The legitimacy of any reasons Groot
walked in late with Hawkins but was not disciplined. The court cannot consider this incident of alleged discriminatory treatment, however, because Hawkins failed to offer any admissible evidence that Meyers was not disciplined: he submitted only his own hearsay testimony about what Meyers told him. See Winskunas v. Birnbaum, 23 F. 3d 1264, 1267-68 (7th Cir. 1994) (substance of evidence submitted in opposition to summary judgment must be admissible).
21Groot points out that when Hawkins grieved his termination, arguing that he was discriminated against and harassed, the Labor Management Committee ("Committee") denied his grievance. Relying on Collins v. New York City Transit Authority, 305 F.3d 113, 118-19 (2d Cir. 2002), Groot argues that the Committee's
20

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proffered is intertwined with whether Groot enforced its discipline policy more harshly
against black employees than white employees, and thus cannot be decided on
summary judgment.
Woodfork's claim, however, cannot survive summary judgment. Woodfork was
terminated on December 21, 1999; his termination letter stated it was his eleventh
warning letter in a twelve month period. He offers the same pool of similarly situated
white employees that Hawkins did. As explained above, the only potential similarly
situated white employees in that pool are Slagle, Prowicz and Finnegan. None of those
three received as many written warnings as Woodfork, which suggests that Woodfork
cannot establish a prima facie case of discrimination.
But the answer is not that simple. By the court's count, Woodfork received only
ten warning letters in a twelve month period, not eleven.22 And the letter dated July 6,
decision alone is sufficient to grant summary judgment against Hawkins because Hawkins does not allege that the Committee acted with bias or discrimination. But Groot waited until its reply brief to raise the issue-Hawkins never addressed the issue at all. Further, unlike the Collins court, this court has been given no information about what took place before the Committee. Without more information, the court declines to decide the case on this basis.
22(1) 3.18.99-late for posted safety meeting; (2) 4.9.99-same; (3) 7.6.99-warning after being sent home for not having work boots; (4) 7.7.99-warning for failure to call in by 2:00p.m. on 7.6.99 (aiter being sent home for not having work boots) to report his status for 7.7.99; (5) 7.19.99-warning for leaving voice mail rather than speaking with a supervisor when calling to report absence; (6) 7.20.99-warning for calling to report status for next day at 3:15p.m. rather than by 2:00p.m.; (7) 9.3.99-late for posted safety meeting; 3 day suspension; (8) 9.7.99-warning for leaving a voice mail on 9.2.99 rather than speaking to supervisor to report absence on 9.3.99; (9) 11.22.99-warning for calling in sick less than an hour before start time; (10) 12.21.99-termination letter for failure to call by 2:00p.m. on 12.20.99 to report status for following day.
21

Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 23 of 30 PageID #:1870
1999 was not attendance-based, but rather was for reporting to work without work boots. That reduces the count to nine.23 Additionally, the warning letter dated July 7, 1999 appears to have had no basis. 24 Woodfork reported for work on July 6th, but was sent home because he did not have his work boots. He received a warning for that infraction, which he accepts was proper. But then he received another warning letter on July 7th for failing to call in by 2:00p.m. on the 6th to report that he would be at work the next day. The work rules, on their face, do not require such a call. Rather, work rule 1 states: "U you are off for any reason and you will be unable to report for work the following day you must notify the company by 2PM so that arrangements can be made to cover your absence." (Woodfork's Resp. Defs.' SUF at~ 62 (emphasis added).) It is undisputed that Woodfork reported to work on July 7th, so he had no obligation to call.25 Woodfork not only received an unwarranted warning letter, he was sent home again on July 7th for failing to call in his status, so he also lost a day's pay.
Woodfork thus has an argument that he really had only eight attendance-related warning letters. The problem is that even at that level, he offers no one who is similarly
23Groot repeatedly argues that the court should not consider warnings issued for reasons other than infractions of the attendance-and-absence reporting rules on the grounds that the five-letters-equals-termination rule applies only to attendance-related reporting rules.
24Woodfork, however, did not file a grievance to get this warning letter off his record.
25For the July 6-7 incidents, the court is relying on the dates on the actual letters,
n which are the same as the dates in Woodfork's deposition; the dates listed in
defendants' SUF, 122, 124-26, are off by a day. 22

Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 24 of 30 PageID #:1871
situated. The closest is Finnegan. Woodfork argues that if Finnegan had received a warning letter for each time he was late with no call, rather than one warning letter for three infractions, Finnegan would also have had eight attendance-related infractions.
The problem with this argument is that Woodfork also received a couple of breaks during his time at Groot.26 If the court were to consider the infractions that did not result in warnings for Finnegan, it would have to do so for Woodfork as well.
Woodfork's failure to give an example of a similarly situated white employee who received more favorable treatment under Groot's progressive-discipline policy is
fatal to his claim. Without setting forth a prima facie case of discriminatory discharge,
he cannot survive summary judgment.
III. Unequal Compensation (Hawkins only) Groot also moves for summary judgment against Hawkins regarding his claim
that he was discriminated against in pay. Drivers are entitled to full-scale pay once they
have been employed by Groot for 42 months. Hawkins was entitled to full-scale pay beginning on January 5, 1998, but Groot failed to raise his salary to full-scale until
26For example, when Woodfork called in sick for March 1,1999 and left a message on the voice mail rather than speaking with a supervisor, he did not receive a warning letter. Woodfork claims he could not speak with a supervisor because he called on a Sunday when no supervisors were available, and thus committed no infraction. The conclusion that he committed no infraction does not follow. Whether he agrees with the rationale for the rule or not, Woodfork could have complied with the rule by calling early Monday morning and speaking with a supervisor. And the fact that Woodfork committed the exact same violation two more times (and received written warnings) suggests that Woodfork could have avoided some of the written warnings by reading the work rules.
23

Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 25 of 30 PageID #:1872
October 5, 1998. Upon discovering that he had not been properly paid for ten months, Hawkins did not file a grievance (though he could, and should, have), but he raised the issue with Dowling and Phillips on several occasions beginning in October 1998. It is disputed whether he complained, or simply made inquiries. It is also disputed whether he voiced any concern that the discrepancy in his wages was the result of race discrimination. After his termination on May 5, 1999, Hawkins filed an EEOC complaint, which included an allegation that he was discriminated in pay. After Hawkins filed his EEOC complaint, but before this litigation commenced, Groot paid him the full amount he was due for the ten months he was paid at the wrong rate.
There is no question that Hawkins can make a prima facie case of pay discrimination: it is undisputed that other similarly situated white drivers were paid full-scale as soon as they became entitled to it. But Groot argues that it has a legitimate, non-discriminatory reason: clerical error. Hawkins transferred to Groot from its subsidiary Crown Recycling & Waste Services, Inc. ("Crown"). According to Groot, it miscalculated the combined amount of time Hawkins worked for both Groot and Crown, and thus mistakenly failed to raise Hawkins to full-scale when he first became entitled to that rate. Groot claims it reexamined its files after Hawkins filed his EEOC complaint, discovered the error, and promptly paid him what he was owed. In support of its non-discriminatory reason, Groot points out to the undisputed fact that in 1997, 1998 and 1999, Groot paid other black drivers full-scale as soon as they became entitled to that rate.
24

Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 26 of 30 PageID #:1873
Given Groot's proffered non-discriminatory reason for the pay discrepancy, the
burden is on Hawkins to show that Groot's reason is pretextual. Hawkins fails to raise
a disputed issue of material fact on the matter of pretext. Apart from his own personal
belief, Hawkins offers no basis to support a finding that Groot's failure to pay him fullscale as soon as he became entitled was the result of racial discrimination. "Such
subjective beliefs of the plaintiff, however, are insufficient to create a genuine issue of
material fact." McMillian v. Svetanoff, 878 F.2d 186,190 (7th Cir. 1989). Groot's motion
for summary judgment regarding Hawkins' claim for pay discrimination is granted because no reasonable jury could find in Hawkins' favor on this claim.
IV. Retaliatory Discharge
Groot seeks summary judgment against Hawkins and Woodfork on their
retaliatory discharge claims as well. In Haywood v. Lucent Technologies, Inc., _ F.3d---'
2003 WL 1400496 (7th Cir. Mar. 20, 2003), the Seventh Circuit reviewed the ways in
which a prima facie case of retaliation can be established:
The plaintiff may establish a prima facie case of retaliation in one of two
ways. First, [he] may present direct evidence of a statutorily protected activity, an adverse action and a causal connection between the two.
The second is the indirect method, our "adaptation of McDonnell Douglas to the retaliation context." At the first stage, the plaintiff must show that (1) [he] engaged in statutorily protected activity; (2) [he] performed [his] job according to [his] employer's legitimate expectations; (3) despite [his] satisfactory job performance, [he] suffered an adverse employment action; and (4) [he] was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Under this method, the "plaintiff so proceeding need not show even an attenuated causal link."
25

Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 27 of 30 PageID #:1874
Id. at *5 (internal citations omitted). Regarding Hawkins, Groot contends that his claim fails because he did not
engage in protected activity, he cannot establish that he was performing satisfactorily, and there is no evidence that Groot's reason for terminating Hawkins-his disciplinary record-was pretextual. Hawkins' one-paragraph argument in opposition to summary judgment on this claim is woefully deficient. It is clear, however, that Hawkins claims he engaged in protected activity in two ways: through his association with Frederick Giles, a black co-worker who filed an EEOC complaint, and through his own internal complaints about the discrepancy in his pay.27 His affiliation with Giles is insufficient as a matter of law: being friends with a person who files an EEOC complaint does not constitute protected activity. See Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998) (providing spiritual guidance and friendship does not constitute engaging in protected activity). There is a genuine issue of material fact regarding whether his complaints about the discrepancy in his wages constitute protected activity, however. Hawkins claims that he addressed the pay discrepancy with Dowling and Mayer on more than one occasion beginning in October 1998. If he merely raised a problem with his salary, he did not engage in protected activity. The disputed issue is whether he ever indicated to them that he believed the discrepancy was the result of
27This is a new theory for Hawkins; his original complaint was based merely on his association with Giles.
26

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racial discrimination. Given this disputed issue, the court must assume for purposes of this motion that Hawkins did engage in protected activity.
But even assuming that Hawkins engaged in protected activity, his claim cannot survive. He cannot proceed under the McDonnell-Douglas test because he cannot show he was performing up to Groot's reasonable expectations. Granted, as explained above, Hawkins did not have to make a showing on that element for his discriminatory discharge claim because that claim was based on discriminatory enforcement of discipline policies. But the court finds no legal basis to eliminate that element from the McDonnell-Douglas test with respect to the retaliatory discharge claim, an entirely independent basis for recovery. If that element were eliminated, Hawkins' retaliatory discharge claim would be identical to his discriminatory discharge claim, with no required showing of causation between engaging in protected activity and discharge. Such a result is illogical.
At a minimum, therefore, Hawkins must raise a material issue of fact regarding a causal connection between engaging in protected activity and discharge-and he has failed to do so. Hawkins argues (without any citation to the record or the statement of facts) that as a result of his complaints about the disparity in pay, he "was made to work more and later than others ... [and] was then subjected to inferior terms and conditions of employment and ultimately terminated." (Hawkins' Opp. Br. at 18.) As to the assertion that he had to work more and later than others, Hawkins identified a single instance in which Dowling allegedly allowed other drivers to go home rather
27

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Case: 1:01-cv-01731 Document #: 119 Filed: 03/31/03 Page 29 of 30 PageID #:1876

than sending them to help Hawkins (who usually worked alone) finish his route when he had an injured leg. (Hawkins Dep. 296:4-17.) That incident took place sometime after March 29,1999. Hawkins offers no connection between that incident and his complaints about the pay disparity. Indeed, Hawkins' testimony suggested that the incident occurred in retaliation for his association with Giles, not for any complaints about pay. And his assertion that he was subjected to inferior terms and conditions of employment after complaining about his pay is unsupported. Without some evidence that Hawkins' allegedly awful situation at work became even worse after he engaged in protected activity- which Hawkins has not offered- a reasonable jury could not render a verdict for him for retaliatory discharge.
Nor does Woodfork's retaliatory discharge claim survive summary judgment.
Like Hawkins, he cannot rely on the McDonnell-Douglas test because he cannot show
that he was meeting Groot's reasonable performance expectations; he must instead show some causal connection between engaging in protected activity and getting fired. It is uncontested that Woodfork engaged in protected activity. On August 11, 1999, after punching in two minutes late and getting sent home from work, Woodfork filed a grievance claiming that the disciplinary policy was enforced more harshly against black employees than white employees. On August 31st, Woodfork submitted another written grievance, complaining that Bob Lewkowicz had been racially harassing him.28

28Groot's investigation of this complaint resulted in Lewkowicz admitting to the allegations and "voluntarily resigning."
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On November 5th, Woodfork filed an EEOC charge. And on November 30, 1999, Woodfork filed a grievance contesting an attendance-related warning letter. A few weeks later, on December 21,1999, Woodfork was terminated.
The problem for Woodfork is that Groot offers Woodfork's accumulation of excessive attendance-related warning letters as "unrebutted evidence that it would have taken the adverse employment action against [Woodfork] anyway, 'in which event [Groot's] retaliatory motive, even if unchallenged, was not a but-for cause of the plaintiff's harm."'29 Haywood, 2003 WL 1400496, at *5 (quoting Stone v. City of Indianapolis Public Util. Div., 281 F.3d 640, 642 (7th Cir. 2002)). Groot's motion for summary judgment on this claim is therefore granted. Conclusion
For the reasons given above, Groot's motion for summary judgment against Hawkins is granted in part and denied in part, as is its motion for summary judgment against Woodfork.
ENTERED:

Dated:

March 31, 2003

2Woodfork could attempt to rebut Groot's explanation for his discharge if his discriminatory discharge claim were still viable, but it is not.
29

 
 Case: 1:01-cv-01731 Document #: 130 Filed: 08/12/03 Page 1 of 28 PageID #:1923

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

/$fL. 11!;,
AUG J 1.;; ~~fit

)

CtEIIM:.c~:~llz," s~·;2':.2~0~0tJiiiN,~~

ANDERSON HAWKINS,

)

LAWRENCE WOODFORK, ENRIQUE

)

HERNANDEZ, and JAVIER GUERRERO

)

on behalf of themselves and all others

)

similarly situated,

)

Plaintiffs,

)

JURY DEMANDED

)

v.

)

)

CASE#: 01 C 1731

GROOT INDUSTRIES, INC. and

)

GROOT RECYCLING AND WASTE

)

Judge: Joan Gottschall

SERVICES, INC.,

)

Magistrate: Martin C. Ashman

Defendants.

)

SECOND AMENDED CLASS ACTION COMPLAINT Plaintiffs, on behalf of themselves and all others similarly situated, by their undersigned attorney, for their second amended complaint of discrimination against Defendants, state as follows:

PARTIES 1. Plaintiff, ANDERSON HAWKINS ("HAWKINS"), is African-American and a resident of the state of Illinois.

2. driver.

Plaintiff, HAWKINS, became employed by Defendants on July 5, 1994 as a

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1. .. •

3. Plaintiff, LAWRENCE WOODFORK ("WOODFORK"), is African-American and a resident of the state of Illinois.

4. 1998.

Plaintiff, WOODFORK, became employed by Defendants on September 2,

5. Plaintiff, ENRIQUE HERNANDEZ ("HERNANDEZ"), is Hispanic and a resident of the state of Illinois.
6. Plaintiff, HERNANDEZ, became employed by Defendants in May of 1998.

7. Plaintiff, JAVIER GUERRERO ("GUERRERO"), is Hispanic and a resident of the state of Illinois.

8. Plaintiff, GUERRERO, became employed by Defendants in July of 1998.

9. Defendant, GROOT INDUSTRIES, INC. ("GROOT"), is qualified to do business in the state of Illinois and conducts business in Illinois.

10. Defendant, GROOT RECYCLING AND WASTE SERVICES, INC. ("GROOT RECYCLING"), is qualified to do business in the state of Illinois and conducts business in Illinois.
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.. 0'

•

NATURE OF CASE 11. The cause of action for Plaintiffs, HAWKINS and WOODFORK, and all other black persons similarly situated arises under Title VII of the Civil Rights Act, 42 U.S.C. Section 2000e, as amended and 42 U.S.C. Section 1981, as amended.

12. The cause of action for Plaintiffs, GUERRERO and HERNANDEZ, and all other Hispanic persons similarly situated arises under 42 U.S.C. Section 1981.

13. Plaintiffs allege a pattern and practice of racial harassment and national origin harassment against African-Americans and persons of Hispanic origin.

14. Plaintiffs allege a pattern and practice of race discrimination against AfricanAmericans and persons of Hispanic origin in connection with work assignments, compensation, transfers, promotions and discipline.

15. Plaintiffs bring this case on behalf of themselves and all others similarly situated, pursuant to Rules 23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure. The class consists of all African-American and Hispanic persons who have been employed by Defendants in their Chicago area facilities on or after July 5, 1994 and who are subject to Defendants' employment and human resources policies and practices, including but not limited to current or former employees, and who have been, continue to be, or may in the future be, adversely affected by Defendants' racially discriminatory policies and practices ("the class"). This case meets all the requirements of Rule 23: (a) the class is so numerous
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Case: 1:01-cv-01731 Document #: 130 Filed: 08/12/03 Page 4 of 28 PageID #:1926

-'·

• Jo

that joinder is impracticable; (b) the issues of law and fact applicable to the plaintiffs present questions of law and fact common to the class; (c) the claims of the plaintiffs are typical of the claims of the class; and (d) the plaintiffs will adequately and vigorously represent the interests of the class. The Defendants have acted and refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief with respect to the class as a whole. This class also meets the requirements of (b)(2) and (b)(3). Plaintiffs reserve the right to amend the definition of the class following discovery.

16. Defendants employ a system of decision-making in connection promotions, work assignments, compensation, and transfers which has a disparate impact on AfricanAmericans and Hispanics and is not job-related.

17. Plaintiffs, HAWKINS and WOODFORK further allege that they were terminated as a result of their race and in retaliation for opposing discrimination or for associating with those who opposed discrimination.

18. Plaintiff, GUERRERO and HERNANDEZ, further allege that they were terminated as a result of their race and national origin.

JURISDICTION AND VENUE 19. This Court has jurisdiction over this matter based upon 42 U.S.C. 2000e, as amended, and 42 U.S.C. Section 1981,28 U.S.C. 1343(4), 28 U.S.C. 1331.

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I

•

20. Venue in the Northern District of Illinois is proper. The claim for relief arose in this state as required by 28 U.S.C. 1391(b) and (c).

21. At all times relevant herein, Plaintiffs were in a contractual relationship with Defendants within the meaning of 42 U.S.C. Section 1981.

22. At all times pertinent hereto, Defendants were engaged in an industry affecting commerce and has had fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.

23. On or about May 7, 1999, Plaintiff, HAWKINS, filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"), alleging race discrimination, racial harassment and retaliation. Said charge is incorporated herein. (Attached as Exhibit 1).

24. On or about November 5, 1999, Plaintiff, WOODFORK, filed a charge of discrimination with the EEOC, alleging race discrimination by Defendants in the various terms and conditions of employment. Said charge is incorporated herein. (Attached as Exhibit 2).

25. After investigating the EEOC charge of Plaintiff, HAWKINS, the EEOC concluded and issued a finding, as follows:
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. Case: 1:01-cv-01731 Document #: 130 Filed: 08/12/03 Page 6 of 28 PageID #:1928 '
Charging Party alleged that Respondent discriminated against him on the basis of his race, Black, in violation of Title VII, in that he was subjected to harassment and discipline, was paid different wages, and was discharged. Charging Party further alleged that the Respondent retaliated against him in that it discharged him.
I have determined that the evidence obtained in the investigation establishes reasonable cause to believe that Respondent discriminated against Charging Party, and a class of Individuals, In that It harassed them and subjected them to a hostile work environment based on their race and national origin, in violation of Title VII. (Emphasis supplied) (Attached As Exhibit 3).
25. After investigating the EEOC charge of Plaintiff, WOODFORK, the EEOC concluded and issued a report, as follows:
Charging Party alleged that Respondent discriminated against him on the basis of his race, Black, in violation of Title VII, in that he was paid different wages, harassed, and subjected to different terms and conditions of employment and disciplined. I have determined that the evidence obtained in the investigation establishes
reasonable causa to believe that Respondent discriminated against Charging
Party, and a class of individuals, In that It harassed them and subjected them to a hostile work environment based on their race and national origin, in violation of Title VU. (Emphasis supplied) (Attached As Exhibit 4).
26. In spite of EEOC's finding of class-wide discrimination and harassment and invitation to voluntary compliance and resolution by Defendants, Defendants have failed to enter into an acceptable and reasonable voluntary compliance and resolution. That as such, Plaintiffs, HAWKINS and WOODFORK, have each obtained the right to sue in this district court.
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27. All conditions precedent have been fulfilled by Plaintiffs, HAWKINS and WOODFORK, including the filing of a charge of discrimination with the EEOC of the United States Government, and a request and receipt of a Right-to-sue letter from the Equal
Employment Opportunity Commission. (Said Right to Sue Letters Are Attached Hereto
as Exhibit 5).
COUNT I PATTERN AND PRACTICE ALLEGATIONS OF HARASSMENT DUE TO RACE. NATIONAL ORIGIN ANP INFERIOR TERMS AND CONDITIONS OF EMPLOYMENT 28. That the preceding paragraphs are incorporated by reference here. Plaintiffs bring this count on their own behalf and on behalf of the class.
29. That Defendants engage in a pattern and practice of harassment due to race and national origin and subjected African-Americans and Hispanics to inferior terms and conditions of employment due to their race and national origin. For example:
30. That during his employment with Defendants, Plaintiff, HAWKINS, was referred to as "monkey" on a daily basis, sometimes up to five times per day by co-workers. These co-workers would refer to HAWKINS and other African-Americans in this manner on a daily basis with impunity in the presence of Defendants' officers, supervisors and managers alike. Said co-workers would not be reprimanded or asked to stop by Defendants' agents and supervisors.
-7-

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31. That during his employment with Defendants, Plaintiff, HAWKINS, and other African-American employees were called "porch monkeys•,• fucking monkeys", "fucking black monkeys", and "chango" (Spanish for monkey). This name-calling, directed against African-Americans, occurred on a daily basis with impunity in the presence of Defendants' officers, supeNisors and managers alike.

32. That on a daily basis, Defendants' employees and agents would further harass, taunt and ridicule HAWKINS and other African-American employees by making derogatory statements to them such as: "hey monkey! Do you want a banana?", or "let's go to the zoo to see your family."

33. That on a daily basis, HAWKINS was also referred to by such other derogatory names as "Buckwheat" and "Kobe Bryant."

34. That on a daily basis, employees of Hispanic origin were similarly referred to as "spies" and "wetbacks."

35. That on a daily basis, employees whose national origin is Mexico, were called "dumb Mexicans" and "stupid Mexican."

36. That Defendants' supeNisors and agents also participate in the ridicule of African-Americans and other minorities. For example, Jim Dowling, supeNisor, once told Plaintiff, HAWKINS, to watch his tan because he [Plaintiff] was getting darker.
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,

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37. That during his employment with Defendants, Plaintiff, HAWKINS, observed that Defendants' employees refer to African-Americans as "niggers. •
38. That Plaintiff, WOODFORK, was subjected to similar derogatory and harassing treatment as HAWKINS on a daily basis as described above.
39. That furthermore, and in addition to the racial slurs described above, on a daily basis, Plaintiff, WOODFORK, was referred to as "big black bear" by coworkers.
40. That on one occasion, Plaintiff, WOODFORK was insulted by Defendants' supervisor who referred to his hands as "filthy paws."
41. That Plaintiff, WOODFORK, was once told along with other AfricanAmericans to "swing back to your home- monkeys".
42. That Defendants' supervisors, C.J. Sturwold referred to Plaintiff, WOODFORK, as a "lazy nigger" in the presence of coworkers.
43. That Defendants, their agents would routinely make racially offensive comments such as "them were the good old days," referring to the period of black slavery.
44. That Plaintiff, HERNANDEZ, was subjected to similar derogatory and harassing treatment as HAWKINS on a daily basis as described above.
-9-

•

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45. That Plaintiff, GUERRERO, was subjected to similar derogatory and harassing treatment as HAWKINS on a daily basis as described above.

46. That said race discrimination and racial hostility is openly displayed and ongoing in nature to the present, and Defendants and their agents condone such conduct and refuse to take necessary action to prevent or correct the discrimination and harassment directed at African-Americans and Hispanics and those who associate with them.

47. That all of these and similar incidents have created a hostile and offensive work environment for African-American and Hispanic employees, including Plaintiffs.

48. That WOODFORK, HAWKINS, and HERNANDEZ and others have complained to Defendants' management about discrimination, harassment and inferior terms and conditions of employment. Plaintiff, WOODFORK, also filed grievances with his Union and management regarding these issues. Nonetheless, Defendants failed to take effective remedial action.

49. That Defendants' illegal conduct was motivated by evil motive and intent and was in reckless and callous indifference to the federally protected rights of Plaintiffs and other minority workers.

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Case: 1:01-cv-01731 Document #: 130 Filed: 08/12/03 Page 11 of 28 PageID #:1933
•
50. That Defendants' treatment of Plaintiffs and other minorities was motivated by racial animus and Defendants and its agents acted with racial animus directed toward African-Americans and Hispanics in violation of the law.
51. That the race and national origin discrimination and harassment that Plaintiffs and other minorities were subjected to in the hands of Defendants, their agents, representatives and employees is persistent in nature, unwelcome, extremely offensive, humiliating, and had the effect of creating a hostile and intimidating work environment for Plaintiffs and other minorities.
52. That said continuous and persistent race national origin discrimination and harassment adversely affected the terms and conditions of Plaintiffs' employment with Defendants.
53. That as a direct and proximate result of said unlawful employment practices and disregard for Plaintiffs' rights and sensibilities, Plaintiffs have lost and will continue to lose substantial income, including but not limited to, wages, fringes, pension, seniority benefits, and other employment benefits that are due them.
54. That as a further direct and proximate result of said unlawful employment practices Plaintiffs have suffered the indignity of discrimination, invasion of their right to be free from discrimination and great humiliation which is manifest in physical illnesses and emotional stress on the relationships between Plaintiffs and their friends and family.
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Case: 1:01-cv-01731 Document #: 130 Filed: 08/12/03 Page 12 of 28 PageID #:1934 •

55. That as a further direct and proximate result of said unlawful employment practices, Plaintiffs have suffered extreme mental anguish, outrage, severe anxiety about their future and ability to support themselves, harm to their employability and earning capacity, painful embarrassment among friends and co-workers, damage to their reputation, disruption of their personal lives, and loss of enjoyment of the ordinary pleasures of life.

PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that the Court provide the following equitable and legal relief:

a. Advance this case on the docket, order a speedy hearing at the earliest practicable date and cause this case to be expedited in every possible way.

b. Certify this case as a class action;

c. Enterjudgment that Defendants' acts and practices as set forth herein are in violation of the laws of United States;

d. Enter preliminary and permanent relief enjoining the discriminatory conduct necessary to end Defendants' discriminatory practices and prevent current and future harm;

e. Award Plaintiffs and the class lost wages, including back pay, front pay and lost fringe benefits, and including, without limitation, any lost benefits that would otherwise have been included in the 401 (k) pension plans of Plaintiffs and the class which resulted from the discrimination with applicable prejudgment and statutory interest;

f.

Order Defendants to offer Plaintiffs and the class positions that they

would have had absent discrimination with retroactive raises and

seniority and benefits.

g. Award Plaintiffs and the class costs of litigation, including reasonable

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•
attorney's fees and expert fees, expenses and costs; h. Award Plaintiffs and the class compensatory and punitive damages. i. Grant such other and further relief as this court deems just and
proper.
COUNT II PATTERN AND PRACTICE COMPLAINT OF RACE DISCRIMINATION IN PROMOTIONS. WORK ASSIGNMENTS. COMPENSATION. TRANSFERS. DISCIPLINE AND THE TERMS
AND CONDITIONS OF EMPLOYMENT 56. Thatthe preceding paragraphs are incorporated by reference here. Plaintiffs bring this count on their own behalf and on behalf of the class.
57. That Defendants engaged in a pattern and practice of race discrimination in connection with promotions, work assignments, compensation, transfers, discipline and terms and conditions of employment. For example:
58. That Defendants' supervisors would routinely subject African-Americans and Hispanics to unequal discipline. In other words, Defendants would discipline AfricanAmericans and Hispanics more harshly for the same infractions for which white employees would not be disciplined or given less severe discipline. For example, an African American employee would arrive to work late at the same time as white co-worker. Defendants' supervisors would observe both employees arrive late but would only discipline the AfricanAmerican employee. On one occasion, Plaintiff arrived late work along with a white employee, DAVID MEYERS. Plaintiff was issued a written warning while MEYERS was not.
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Defendants engage in this practice to discriminatorily populate the personnel files of African Americans with write-ups in a bid to subject them to inferior terms and conditions of employment and to terminate them in retaliation for complaining.
59. That similarly, Plaintiff, GUERRERO, was terminated for mixing garbage while similarly-situated white employees routinely engaged in similar conduct and were neither disciplined or terminated by Defendants.
60. That in connection with the several write-ups that he was being issued by Defendants through his supervisor, Plaintiff, HAWKINS, was once told by his disciplining supervisor, TOM MAYER, "it is not me [MAYER], they [Defendants] are harassing me to write you up."
61. That Defendants' supervisor, Craig Phillips, once told Plaintiff, WOODFORK, that he [Phillips] could terminate WOODFORK's employment for any reason, including not liking the color of his eyes. Phillips made this statement while his gaze was fixed on WOODFORK's arm with his skin exposed, thus suggesting that he could terminate WOODFORK for the color of his skin.
62. That on one occasion, Plaintiff, WOODFORK was forced to go home for the day because he was late by one minute in contrast to the treatment given by Defendants to similarly-situated white employees who are typically not disciplined for such infractions.
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63. That Defendants discriminate against African-Americans and Hispanics in work assignments in that whites drivers are assigned newer trucks while African-American and Hispanics drivers with more seniority are assigned to use older, less efficient trucks; white drivers are assigned better and more lucrative truck routes than African-American and Hispanic drivers with more seniority.

64. That Defendants discriminate against African-Americans and Hispanics with respect to compensation in that African-Americans and Hispanics are paid less that their white counterparts in the same position. Defendants systematically discriminate against African-Americans and Hispanics in compensation by delaying the effective dates of their pay increases and benefits.

65. That Defendants have four different job classifications namely, Recycling, Residential, Commercial, Roll-off, with each classification commanding different compensation. African-Americans and Hispanics are disproportionately assigned to the lower paying classifications, sometimes in complete disregard oftheir seniority rights. That conversely, white employees are hired directly into or transferred to the higher paying classifications with less seniority. Roll-off is the most sought-after classification and none of the Plaintiffs were offered a position in Roll-off while similarly-situated whites, some with less seniority, were hired directly or transferred into Roll-off by Defendants.

66. That Defendants discriminatorily promote white employees to the position of supervisor while not permitting African-Americans and Hispanics into supervisory positions.
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Case: 1:01-cv-01731 Document #: 130 Filed: 08/12/03 Page 16 of 28 PageID #:1938 •
67. That Defendants discriminate against African-Americans and Hispanics who have temporary medical work restrictions. Defendants would routinely refuse to assign restricted African-American employees light duty work thus causing them to lose pay. This is in contrast to the treatment of medically restricted white employees who are routinely assigned light-duty work by Defendants.
68. That Plaintiffs were subjected to different wages and inferior benefits at various times during their employment with Defendants along with other African-American and Hispanic employees.
69. That Plaintiffs, WOODFORK and HAWKINS, and others complained to Defendants' management about discrimination, harassment and inferior terms and conditions of employment. Plaintiff, WOODFORK, also filed grievances with his Union and management regarding these issues. Nonetheless, Defendants failed to take effective remedial action.
70. That instead of taking effective corrective action directed at eliminating race discrimination, Defendants' practice is to retaliate against Plaintiffs and others for complaining about discrimination by disciplining, suspending and ultimately terminating them.
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71. That Defendants terminated HAWKINS' employment on April 5, 1999, WOODFORK's employment on December 21, 1999, HERNANDEZ's employment on January 06, 2000, and GUERRERO's employment on May 26, 2000.

72. That Defendants' treatment of Plaintiffs was motivated by evil motive and intent and was in reckless and callous indifference to Plaintiffs' federally protected rights.

73. That Defendants' conduct was motivated by racial animus and Defendants and their agents acted with racial animus directed toward African-Americans and Hispanics in violation of the law.

74. That said continuous and persistent race discrimination and harassment adversely affected the terms and conditions of Plaintiffs' employment with Defendants.

75. That as a direct and proximate result of said unlawful employment practices and disregard for Plaintiffs' rights and sensibilities, Plaintiffs have lost and will continue to lose substantial Income, including but not limited to, wages, fringes, pension, seniority benefits, and other employment benefits that are due them.

76. That as a further direct and proximate result of said unlawful employment practices Plaintiffs have suffered the indignity of discrimination, invasion of their right to be free from discrimination and great humiliation which is manifest in physical illnesses and emotional stress on the relationships between Plaintiffs and their friends and family.
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77. That as a further direct and proximate result of said unlawful employment practices, Plaintiffs have suffered extreme mental anguish, outrage, severe anxiety about their future and ability to support themselves, harm to their employability and earning capacity, painful embarrassment among friends and co-worker, damage to their reputation, disruption of their personal lives, and loss of enjoyment of the ordinary pleasures of life.

PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that the Court provide the following equitable and legal relief:

a. Advance this case on the docket, order a speedy hearing at the earliest practicable date and cause this case to be expedited in every possible way.

b. Certify this case as a class action;

c. Enterjudgment that Defendants' acts and practices as set forth herein are in violation of the laws of United States;

d. Enter preliminary and permanent relief enjoining the discriminatory conduct necessary to end Defendants' discriminatory practices and prevent current and future harm;

e. Award Plaintiffs and the class lost wages, including back pay, front pay and lost fringe benefits, and including, without limitation, any lost benefits that would otherwise have been included in the 401(k) pension plans of Plaintiffs and the class which resulted from the discrimination with applicable prejudgment and statutory interest;

f.

Order Defendants to offer Plaintiffs and the class positions that they

would have had absent discrimination with retroactive raises and

seniority, pay raises and benefits.

g. Award Plaintiffs and the class costs of litigation, Including reasonable attorney's fees and expert fees, expenses and costs;

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f
h. Award Plaintiffs and the class compensatory and punitive damages. i. Grant such other and further relief as this court deems just and
proper.
COUNT Ill COMPLAINT OF ANDERSON HAWKINS OF HARASSMENT
DUE TO RACE AND INFERIOR TERMS AND CONDITIONS OF EMPLQYMENT 78. That Plaintiff, HAWKINS, incorporates the preceding paragraphs. Plaintiff brings this count individually.
79. That Defendants' conduct subjected Plaintiff, HAWKINS, to harassment due to his race.
80. That Defendants further subjected Plaintiff, HAWKINS, to illegal, inferior and miserable terms and conditions of employment due to his race in violation of Title VII and
42 u.s.c. 1981.
PRAYER FOR RELIEF WHEREFORE, Plaintiff, HAWKINS, respectfully prays that the Court provide the following equitable and legal relief:
a. Advance this case on the docket, order a speedy hearing at the earliest practicable date and cause this case to be expedited in every possible way.
b. Award Plaintiff, HAWKINS, appropriate back-pay, future earnings and reimbursement for income and fringe benefits lost to the present with
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Case: 1:01-cv-01731 Document #: 130 Filed: 08/12/03 Page 20 of 28 PageID #:1942

applicable prejudgment and statutory interest.

c. Award Plaintiff, HAWKINS, costs of litigation, including reasonable attorney's fees and expert fees and expenses.

d. Award Plaintiff, HAWKINS, a judgment against Defendants for compensatory damages.

e. Grant judgment against Defendants for punitive damages for willful and wanton conduct.

f.

Enter an order requiring Defendants to implement effective steps to

eliminate race discrimination from Defendants' organizations.

g. Grant such other and further relief as this court deems just and proper.

COUNT IV COMPLAINT OF LAWRENCE WOODFORK FOR HARASSMENT QUE TO RACE AND INFERIOR TERMS AND CONDITIONS OF EMPLOYMENT
81. That Plaintiff, WOODFORK, incorporates the preceding paragraphs. Plaintiff
brings this count individually.

82. That Defendants' conduct subjected Plaintiff, WOODFORK, to harassment due to his race.

83. That Defendants' conduct subjected Plaintiff, WOODFORK, to illegal, inferior and miserable terms and conditions of employment in violation of Title VII and 42 U.S.C. 1981.

-20-

, ' ~ Case: 1:01-cv-01731 Document #: 130 Filed: 08/12/03 Page 21 of 28 PageID #:1943

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, WOODFORK, respectfully prays that the Court provide the following equitable and legal relief:

a. Advance this case on the docket, order a speedy hearing at the earliest practicable date and cause this case to be expedited in every
possible way.

b. Award Plaintiff, WOODFORK, appropriate back-pay, future earnings and reimbursement for income and fringe benefits lost to the present with applicable prejudgment and statutory interest.

c. Award Plaintiff, WOODFORK, costs of litigation, including reasonable attorney's fees and expert fees and expenses.

d. Award Plaintiff, WOODFORK, a judgment against Defendants for compensatory damages.

e. Grant judgment against Defendants for punitive damages for willful and wanton conduct.

f.

Enter an order requiring Defendants to implement effective steps to

eliminate race discrimination from Defendants' organizations.

g. Grant such other and further relief as this court deems just and proper.

COUNTY COMPLAINT OF ENRIQUE HERNANDEZ FOR HARASSMENT DUE TO RACE. NATIONAL ORIGIN AND INFERIOR TERMS AND CONDITIONS OF EMPLOYMENT
84. That Plaintiff, HERNANDEZ, incorporates the preceding paragraphs.
Plaintiff brings this count individually.

85. That Defendants' conduct subjected Plaintiff, HERNANDEZ, to harassment due to his race and national origin.
-21-

, ~ ' .. Case: 1:01-cv-01731 Document #: 130 Filed: 08/12/03 Page 22 of 28 PageID #:1944

86. That Defendants' conduct subjected Plaintiff, HERNANDEZ, to illegal, inferior and miserable terms and conditions of employment in violation of 42 U.S.C. 1981.

PBAYER FOR RELIEF

WHEREFORE, Plaintiff, HERNANDEZ, respectfully prays thatthe Court provide the following equitable and legal relief:

a. Advance this case on the docket, order a speedy hearing at the earliest practicable date and cause this case to be expedited in every possible way.

b. Award Plaintiff, HERNANDEZ, appropriate back-pay, future earnings and reimbursement for income and fringe benefits lost to the present
with applicable prejudgment and statutory interest.

c. Award Plaintiff, HERNANDEZ, costs of litigation, including reasonable attorney's fees and expert fees and expenses.

d. Award Plaintiff, HERNANDEZ, a judgment against Defendants for compensatory damages.

e. Grant judgment against Defendants for punitive damages for willful and wanton conduct.

f.

Enter an order requiring Defendants to implement effective steps to

eliminate race discrimination from Defendants' organizations.

g. Grant such other and further relief as this court deems just and proper.

-22-

.' -~

~

Case: 1:01-cv-01731 Document #: 130 Filed: 08/12/03 Page 23 of 28 PageID #:1945

COUNT VI COMPLAINT OF JAVIER GUERRERO FOR HARASSMENT DUE TO RACE. NATIONAL ORIGIN AND INFERIOR TERMS AND CONDITIONS OF EMPLOYMENT
87. That Plaintiff, GUERRERO, incorporates the preceding paragraphs. Plaintiff
brings this count individually.

88. That Defendants' conduct subjected Plaintiff, GUERRERO, to harassment due to his race and national origin.

89. That Defendants' conduct subjected Plaintiff, GUERRERO, to illegal, inferior and miserable terms and conditions of employment in violation of 42 U.S.C. 1981.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff, GUERRERO, respectfully prays that the Court provide the following equitable and legal relief:
a. Advance this case on the docket, order a speedy hearing at the earliest practicable date and cause this case to be expedited in every possible way.
b. Award Plaintiff, GUERRERO, appropriate back-pay, future earnings and reimbursement for income and fringe benefits lost to the present with applicable prejudgment and statutory interest.
c. Award Plaintiff, GUERRERO, costs of litigation, including reasonable attorney's fees and expert fees and expenses.
d. Award Plaintiff, GUERRERO, a judgment against Defendants for compensatory damages.
e. Grant judgment against Defendants for punitive damages for willful and wanton conduct.
-23-

Case: 1:01-cv-01731 Document #: 130 Filed: 08/12/03 Page 24 of 28 PageID #:1946
f. Enter an order requiring Defendants to implement effective steps to eliminate race discrimination from Defendants' organizations.
g. Grant such other and further relief as this court deems just and proper.
COUNT VII COMPLAINT OF ANDERSON HAWKINS
FOR RETALIATION 90. That Plaintiff, HAWKINS, incorporates the preceding paragraphs. Plaintiff brings this count individually.
91. That Defendants' conduct in disciplining Plaintiff, harassing him, subjecting him to illegal and inferior terms and conditions of employment and ultimately terminating him amounts to retaliation in violation of Title VII and Section 1981.
PRAYER FOR RELIEF WHEREFORE, Plaintiff, HAWKINS, respectfully prays that the Court provide the following equitable and legal relief:
a. Advance this case on the docket, order a speedy hearing at the earliest practicable date and cause this case to be expedited in every possible way.
b. Award Plaintiff, HAWKINS, appropriate back-pay, future earnings and reimbursement for income and fringe benefits lost to the present with applicable prejudgment and statutory interest.
c. Award Plaintiff, HAWKINS, costs of litigation, including reasonable attorney's fees and expert fees and expenses.
d. Award Plaintiff, HAWKINS, a judgment against Defendants for compensatory damages.
-24-

Case: 1:01-cv-01731 Document #: 130 Filed: 08/12/03 Page 25 of 28 PageID #:1947
t ' _1 '

e. Grant judgment against Defendants for punitive damages for willful and wanton conduct.

f.

Enter an order requiring Defendants to implement effective steps to

eliminate race discrimination from Defendants' organizations.

g. Grant such other and further relief as this court deems just and proper.

COUNT VIII COMPLAINT OF LAWRENCE WOODFORK
FOR RETALIATION
92. That Plaintiff, WOODFORK, incorporates the preceding paragraphs. Plaintiff
brings this count individually.

93. That Defendants' conduct in disciplining Plaintiff, harassing him, subjecting him to illegal and inferior terms and conditions of employment and ultimately terminating him amounts to retaliation in violation of Title VII and Section 1981.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff, WOODFORK, respectfully prays that the Court provide the following equitable and legal relief:
a. Advance this case on the docket, order a speedy hearing at the earliest practicable date and cause this case to be expedited in every possible way.
b. Award Plaintiff, WOODFORK, appropriate back-pay, future earnings and reimbursement for income and fringe benefits lost to the present with applicable prejudgment and statutory interest.
c. Award Plaintiff, WOODFORK, costs of litigation, including reasonable attorney's fees and expert fees and expenses.
-25-

Case: 1:01-cv-01731 Document #: 130 Filed: 08/12/03 Page 26 of 28 PageID #:1948

J

I ,,

~

d. Award Plaintiff, WOODFORK, a judgment against Defendants for compensatory damages.

e. Grant judgment against Defendants for punitive damages for willful and wanton conduct.

f.

Enter an order requiring Defendants to implement effective steps to

eliminate race discrimination from Defendants' organizations.

g. Grant such other and further relief as this court deems just and proper.

RESPECTFULLY SUBMITTED, ANDERSON HAWKINS, LAWRENCE WOODFORK,
ENRIQUE HERNANDEZ, and JAVIER GUERRERO,

Uche 0. Asonye-06209522
Nydia Molina-6278059 ASONYE & ASSOCIATES 11 South LaSalle Street, Suite 2140 Chicago, Illinois 60603 (312) 795-9110

One of their Attorneys

-26-

Case: 1:01-cv-01731 Document #: 130 Filed: 08/12/03 Page 27 of 28 PageID #:1949
JURY DEMAND NOW COME Plaintiffs, by counsel, and hereby demand a trial by jury in the above entitled cause of action.
RESPECTFULLY SUBMITTED, ANDERSON HAWKINS, LAWRENCE WOODFORK, ENRIQUE HERNANDEZ, and JAVIER GUERRERO,
Uche 0. Asonye-06209522 Nydia Molina-6278059 ASONYE & ASSOCIATES 11 South LaSalle Street, Suite 2140 Chicago, Illinois 60603 (312) 795-9110
-27-

Case: 1:01-cv-01731 Document #: 130 Filed: 08/12/03 Page 28 of 28 PageID #:1950
SEE CASE FILE FOR EXHIBITS

 
 Case: 1:01-cv-01731 Document #: 133 Filed: 09/02/03 Page 1 of 6 PageID #:1984

• ., Onla fonn (06197)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magiatrate Judae
CASE NUMBER

Joan B. Gottschall
01 c 1731

Slttlna Judge If Otber tbaa Aallgaed Judge
DATE

9/2/2003

CASE TITLE
MOTION:

Hawkins, et al. vs. Groot Industries, Inc., et al.
. . [In the foUowmg box (a) md•cate the party filmg the monon, e.g., plomntf, defendant, 3rd party pla.mn.tf, and (b) state brlefty the natute
of the motion being presented.]

DOCKET ENTRY:

(I) D

Filed motion of[ use listing in "Motion" box above.]

(2) D

Briefin support of motion due _ _.

(3) D

Answer brief 10 motion due_ _. Reply to answer brief due_ _.

(4) D

Ruling/Hearing on _ _ set for _ _ at----'

(5) D

Status hearing[beldlcontinued 10] [set for/re-set for] on _ _ set for _ _ at _ _.

(6) D

Pretrial conference[beldlcontinued 10] [set for/re-set for] on _ _ set for _ _ at ___.

(7) D

Trial{set for/re-set for] o~-- at _ _.

(8) 0

[Bench/Jury trial] [Hearing] held/continued 10 _ _ at _ _

(9) D
• (10)

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to] 0 FRCP4(m) D Local Rule 41.1 D FRCP41(a)(J) 0 FRCP41(a)(2).
[Other docket entry] ENTER ORDER. Plaintiffs' motion for class certification [44-1] is denied.

• (ll)

[For further detail see order attached 10 the original minute order.]

--

No noticc:a required. advised in open court. No notices required. Notice& mailed by judge•s staff.

-tiKl =·~~:.;::~:::bon~

Moil AO 450 form.
:-Copy to judge/magistrate judgo.

HlnO:J l::Jil:llSIO ·s·n
}lti3l:J

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deputy's

1mttala

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.SEP 04 2003 due docketed dale mailed notice

Case: 1:01-cv-01731 Document #: 133 Filed: 09/02/03 Page 2 of 6 PageID #:1985 ,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DOCKETED
S£P 0 4 2003

ANDERSON HAWKINS, LAWRENCE

)

WOODFORK, ENRIQUE HERNANDEZ,

)

and JAVIER GUERRERO, on behalfof

)

themselves and all others similarly situated,

)

)

Plaintiffs, )

)

v.

)

)

GROOT INDUSTRIES, INC. and GROOT

)

RECYCLING AND WASTE SERVICES,

)

INC.,

)

)

Defendants. )

Case No. 01 C 1731
Judge Joan B. Gottschall Magistrate Martin C. Ashman

ORDER

Plaintiffs Anderson Hawkins, Lawrence Woodfork, Enrique Hernandez, and Javier

Guerrero have moved for class certification pursuant to Fed. R. Civ. P. 23(b)(2). Specifically,

they seek class certification as to Counts I and II ofthe First Amended Complaint ("complaint''

or "FAC"),1 in which they allege that their former employer(s), defendants Groot Industries, Inc.

and Groot Recycling and Waste Services, Inc. (collectively "Groot''), violated Title Vll of the

Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. § 1981 by

engaging in "a pattern and practice of harassment due to race and national origin" and "a pattern

and practice ofrace discrimination in connection with promotions, work assignments,

compensation, transfers, discipline and other terms and conditions of employment" (FAC 1'1 29,

1Since the motion was filed, plaintiffs have filed the Second Amended Complaint. Because Counts I and II remain substantially the same, and because the briefing for the motion for class certification focuses on the First Amended Complaint, for simplicity, the court shall refer to the First Amended Complaint, but the court's ruling applies with equal force to the Second Amended Complaint.

Case: 1:01-cv-01731 Document #: 133 Filed: 09/02/03 Page 3 of 6 PageID #:1986
57.) Plaintiffs seek certification oftwo classes: (1) all African-Americans that were or are employees of Groot in its Chicago area facilities from July 5, 1994 to the present; and (2) all Hispanics that were or are employees of Groot in their Chicago area facilities from July 5, 1994 to the present.2 Groot opposes class certification.
Before addressing whether class certification is appropriate, it is necessary to clarify which plaintiffs and counts remain after the court's rulings on Groot's motions for summary judgment. Neither Guerrero nor Hernandez's claims survived summary judgment, so there are no pending claims on behalf of any named Hispanic plaintiff. (Order of September 2, 2003.) Hawkins and Woodfork's hostile work environment claims both survived summary judgment, as did Hawkins' discriminatory discharge claim, which was based on alleged discriminatory enforcement of discipline policies. Neither Hawkins nor Woodfork has a pending claim based on unequal conditions ofemployment, i.e., that they were denied promotions, denied light duty, assigned inferior routes and trucks and received unequal pay. To the extent the court did not explicitly make this ruling when it originally ruled on Groot's motions for summary judgment against Hawkins and Woodfork, Hawkins v. Groot Indus. Inc., No. 01 C 1731,2003 WL 1720069 (N.D. lll. Mar. 31, 2003), it does so now. (The court did not explicitly address these claims earlier was because neither Hawkins nor Woodfork addressed them in any substance in their opposition briefs.) Their claims that they were denied promotions fail because neither Hawkins nor Woodfork ever applied for a promotion, which is an essential element of a failure-
2In plaintiffs' reply brief, they argue for two subclasses as well: (la) all present and former African American drivers employed by Groot at its Chicago facilities from July 5, 1994 to the present; and (2a) all present and former Hispanic drivers employed by Groot at its Chicago facilities from July 5, 1994.
2

Case: 1:01-cv-01731 Document #: 133 Filed: 09/02/03 Page 4 of 6 PageID #:1987
to-promote claim. Bragg v. Navistar Int'l Transp. Corp., 164 F.3d 373, 377 (7th Cir. 1998). Similarly, Hawkins and Woodfork's claims that they were denied light duty lack merit because it is undisputed that neither of them ever requested light duty. As for the claims that they received unequal pay, the court already granted summary judgment in Groot's favor with respect to Hawkins' claim. For Woodfork, there is no evidence in the record that he was paid less than he was supposed to be paid under the Private Scavengers Agreement, let alone evidence that any similarly situated white drivers were paid more than he was. Likewise, Hawkins and Woodfork's claims that Groot assigned them to inferior routes and trucks also fail because neither of them offers any evidence ofany similarly situated white driver who received better routes or trucks.
Because there are no pending claims on behalf of any named Hispanic plaintiff, plaintiffs' motion for class certification is denied with respect to certification of any class ofHispanic employees or former employees. Griffin v. Dugger, 823 F.2d 1476, 1483 (11th Cir. 1987) ("[A] claim cannot be asserted on behalf of a class unless at least one named plaintiffhas suffered the injury that gives rise to the claim."). As for the black employees, the only possible class claims are that Groot engaged in a pattern and practice of subjecting black employees to a racially hostile work environment and engaged in a pattern and practice ofdiscriminatory discipline in violation ofTitle Vll and§ 1981. Accordingly, these are the only claims the court shall consider in determining whether to certify a class.
Plaintiffs seek certification under Fed. R. Civ. P. 23(b)(2). Under Rule 23(b)(2), class certification is appropriate when "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive or corresponding declaratory relief with respect to the class as a whole." Fed. R. Civ. P. 23(b)(2).
3

Case: 1:01-cv-01731 Document #: 133 Filed: 09/02/03 Page 5 of 6 PageID #:1988
'
As explained by the Seventh Circuit, class claims may be certified under Rule 23(b)(2) "only if the predominant relief sought is injunctive or declaratory." Lemon v. lnt 'I Union ofOperating Eng'rs, 216 F.3d 577, 580-81 (7th Cir. 2000). Because Rule 23(b)(2) does not require giving class members notice or the opportunity to opt out of the class, certification under Rule 23(b)(2) "is impermissible unless the requested monetary damages are 'incidental' to requested injunctive or declaratory relief." Id. at 581. "Incidental" damages '"flow directly from liability to the class as a whole"' and "do not 'require additional hearings to resolve the disparate merits ofeach individual's case."' ld. (citation omitted). Plaintiffs here seek compensatory and punitive damages as well as injunctive relief, and despite their argument to the contrary, the monetary damages they seek are not merely incidental.
But there is a more fundamental reason why the court cannot certify a class of present and former black employees under Rule 23(b)(2): neither Hawkins nor Woodfork, the only named black plaintiffs, have standing to seek injunctive relief. "A plaintiff seeking injunctive relief must show that he is currently suffering some injury or there is some immediate danger of a direct injury. Past exposure to illegal conduct is insufficient to establish a present case or controversy regarding injunctive relief unless accompanied [by) continuing adverse effect." Koski v. Gainer, No. 92 C 3293, 1993 WL 153828, at •4 (N.D.lll. May6, 1993) (internal citation omitted); Gable v. City ofChicago, No. 97 C 4872, 1998 WL 128712, at *3 (N.D. lll. Mar. 13, 1998). Both Woodfork and Hawkins are former employees, not current employees, which means there is insufficient likelihood that either ofthem will be affected by Groot's alleged discrimination in the future. Wooden v. Bd. ofRegents ofthe Univ. Sys. ofGa., 247 F.3d 1262, 1283 (11th Cir. 2001); Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655, 665
4

Case: 1:01-cv-01731 Document #: 133 Filed: 09/02/03 Page 6 of 6 PageID #:1989 ' '
(N.D. Ga. 2001 ). While they can certainly seek monetary damages, they have no standing to seek injunctive relief. Thus, there is no basis to certifY a class under Rule 23(b){2)-the only subsection under which plaintiffs sought class certification.
Plaintiffs' motion for class certification is therefore denied. ENTERED:
Dated: September 2, 2003
s

 
 • Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 1 of 17 PageID #:1990
Minute OrdcrFonn(Oti/91)
United States District Court, Northern District oflllinois

Name of Auigned Judge or Magistrate Judge

Joan B. Gottschall

Slttlna Judge If Other than Assigned Judge

CASE NUMBER

01C1731

DATE

9/2/2003

CASE TITLE
MOTION:

Hawkins, et al. vs. Groot Industries, Inc., et al.
. . [In the folloWing box (a) md1cate the party fibng the mouon, e.g., plam. h.ff, defendan~ 3rd party plamtiff, and (b) slatebriefly the nature
of the motion being preaented.]

DOCKET ENTRY:

(I) 0

(2)

0

(3) 0

(4) 0

Filed motion of [ use listing in "Motion" box above.] Brief in support of motion due _ _. Answer brief to motion due_ _. Reply to answer brief due_ _. Ruling/Hearing on _ _ set for _ _ at _ _.

(5) 0

Status bearing[beld!continued to] [set for/re-set for] on _ _ set for _ _ at _ _.

(6}

0

(7} 0

Pretrial conference[beld!continued to] [set for/re-set for] on _ _ set for _ _ at _ _. Trial[set for/re-set for] on _ _ at _ _.

(8}

0

(9} 0

[Bench/Jury trial] [Hearing] held/continued to _ _ at _ _.
This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to] 0 FRCP4(m} 0 Local Rule 41.1 0 FRCP4l(a}(l} 0 FRCP41(a}(2}.

(10} g

[Other docket entry] ENTER MEMORANDUM OPINION & ORDER. Defendants' motion for

summary judgment against plaintiff Enrique Hernandez [58-1] is granted, as is defendants' motion for

summary judgment against plaintiff Javier Guerrero [55-1 ].

(11} II

[For further detail see order attached to the original minute order.]

No notices required. advised in open court.

No notices required.

Notices mailed by judge's staff.
1---i/
Notified counsel by telephone.

Docketing to mail notices. Mail AO 450 form. Copy to judge/magistrate judge.
courtroom
deputy' a initials

l~nOJ l:JilHSIO ·s·n
)i/J]lJ

"v co d3S ,. .. •0 IJ
,., ·Q

~-

flN/13:./Joo :-Jo
ived in central Clerk's Office

Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 2 of 17 PageID #:1991

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANDERSON HAWKINS, LAWRENCE

)

WOODFORK, ENRIQUE HERNANDEZ,

)

DOCKETED
S£.p ~ 5 2003

and JAVIER GUERRERO, on behalf of

)

themselves and all others similarly situated,

)

)

Case No. 01 C 1731

Plaintiffs, )

)

v.

)

)

GROOT INDUSTRIES, INC. and GROOT

)

Judge Joan B. Gottschall

RECYCLING AND WASTE SERViCES,

)

Magistrate Martin C. Ashman

INC.,

)

)

Defendants. )

MEMORANDUM ORDER & OPINION

Plaintiffs Enrique Hernandez and Javier Guerrero have sued their former employer(s),

Groot Industries, Inc. and Groot Recycling and Waste Services, Inc. (collectively "Groot''), for

various violations of 42 U.S.C. § 1981. Hernandez and Guerrero bring individual claims alleging that they were subjected to a hostile work environment, discriminatory discharge,1 and unequal

terms and conditions of employment relating to promotions, work assignments, and

compensation at Groot because they are Hispanic. In separate motions, Groot moved for

summary judgment against both Guerrero and Hernandez. For the reasons explained below,

Groot's motions for summary judgment against Hernandez and Guerrero are granted.

Analysis

Summary judgment is proper only if "the pleadings, depositions, answers to

1lt is disputed whether Hernandez or Guerrero actually brought a claim for discriminatory discharge in either the first or second amended complaints. For present purposes, the court assumes they did raise discriminatory discharge claims.

Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 3 of 17 PageID #:1992
•
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 judgment as a matter oflaw." Fed. R. Civ. P. 56(c). In determining whether the movant is entitled to summary judgment, the court examines the admissible evidence in the light most favorable to the nomnoving party, drawing any reasonable inferences in favor of the nomnoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,255 (1986). To avoid summary judgment, the party bearing the burden of proof on an issue must affirmatively show the existence of a genuine issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). But ''unless there is sufficient evidence favoring the nomnoving party for a jury to return a verdict for that party," there is no issue for trial. Anderson, 477 U.S. at 248. Courts apply the summary judgment standard ''with added rigor in employment discrimination cases, where intent and credibility are crucial issues." Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994) (internal quotation marks and citations omitted).
With this standard in mind, the court examines Groot's motions for summary judgment against Hernandez and Guerrero. I. Discriminatory Discharge Claims
Groot seeks summary judgment against both Guerrero and Hernandez on their claims for discriminatory discharge. A plaintiff can establish a prima facie case of discriminatory discharge in one of two ways: by offering direct evidence of discrimination or by utilizing the burdenshifting method set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Cowan v. Glenbrook Sec. Servs., 123 F.3d 438,442 (7th Cir. 1997). Both Hernandez and Guerrero are proceeding under the McDonnell Douglas method. Ordinarily, to
2

Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 4 of 17 PageID #:1993
•
survive summary judgment on a discriminatory discharge claim using the McDonnell Douglas method, a plaintiff must show that (1) he belongs to a protected class; (2) he performed his job in accordance with his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) similarly situated employees outside the protected class received more favorable treatment. Curry v. Menard, Inc., 270 F.3d 473, 477 (7th Cir. 2001). "Establishing a prima facie case creates a presumption ofdiscrimination and shifts the burden to the employer to produce evidence of a legitimate, race-neutral reason for the adverse action." /d. Ifthat burden of production is met, ''the plaintiff then has the burden to show that the stated nondiscriminatory reason is pretextual." /d.
Neither the first nor the third elements are in dispute for Hernandez or Guerrero. As for the second element, both plaintiffs argue that they were singled out for discipline, and ultimately terminated, because of their ethnicity. Accordingly, "it makes little sense ... to discuss whether [plaintiffs were] meeting [their] employer's reasonable expectations." /d. (internal quotation marks and citation omitted). The threshold inquiry, therefore, is whether either Guerrero or Hernandez has shown that similarly situated Groot employees who are not members of his protected class received more favorable treatment than he did under Groot's discipline policy. Both Hernandez and Guerrero allege that Groot enforced the work rules more harshly against Hispanics than against its white employees.
The following work rules are relevant to plaintiffs' discriminatory discharge claims. Groot's safety work rules state that drivers will receive a warning notice if they are involved in an avoidable accident causing under $500 worth of damage, a three-day suspension without pay ifthey are involved in an avoidable accident involving more than $500 worth of damage, and a
3

Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 5 of 17 PageID #:1994
five-day suspension without pay if the damage exceeds $1000. Additionally, for all rear-end accidents, regardless of the amount of damages, drivers are supposed to receive a five-day suspension under the safety work rules. If an avoidable accident involves injuries, drivers may receive a five-day suspension, or may be terminated.
The collective bargaining agreement between Groot and the drivers' union, known as the Private Scavengers Agreement, provides that a driver can be terminated only for just cause and that Groot will use progressive discipline where possible. Nevertheless, the Private Scavengers Agreement specifically provides that "no notice need to be given to [a driver] before he is discharged for just cause for ... failure to report an accident to [Groot] ...." (Defs.' L.R. 56.l(a) statement re: Hernandez and Pl.'s. resp. at '1]83.) Likewise, under the Private Scavengers Agreement, Groot has authority to terminate drivers for dishonesty rather than subjecting them to progressive discipline. (Defs.' L.R. 56.l(a) statement re: Guerrero and Pl.'s. resp. at '1]68.) Thus, "Rule 17 of Groot's work rules states that Groot will terminate drivers for dishonesty including '[p]roviding unauthorized services ... [or] serving unauthorized accounts."' (/d. at '1]69.) Under Rule 17, it makes no difference whether or not the driver accepts payment to provide unauthorized services.
A. Hernandez's Discriminatory Discharge Claim
Regarding Hernandez's discriminatory discharge claim, he has not made the requisite showing that similarly situated non-Hispanics received more favorable treatment than he did. "[A]n employee need not show complete identity in comparing himselfto the better treated employee, but he must show substantial similarity." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000). In disciplinary cases like this one, "a plaintiff must show that he is
4

Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 6 of 17 PageID #:1995
similarly situated with respect to performance, qualifications, and conduct. This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without differentiating or mitigating
circumstances as would distinguish their conduct or their employer's treatment of them." Id. at
617 (internal citations omitted). Hernandez was terminated on January 5, 2000, after Groot concluded that Hernandez had failed to report an accident. Of the numerous white employees Hernandez claims were similarly situated, only two were disciplined for failure to report an accident: Dan Blanks and Terry Marchand. The other white drivers he offers as examples were disciplined, but not terminated, after being involved in an avoidable accident. Unlike failing to report an accident, involvement in an avoidable accident is not grounds for immediate termination (unless there were injuries). Blanks and Marchand are therefore the only two potentially similarly-situated drivers.
According to Groot's records, Blanks received a warning notice issued by supervisor Jim Dowling dated January 3, 1996 for an incident that occurred on December 28, 1995. The warning states that Blanks damaged a truck "by hitting a low bridge and did not report the damage. It is Company policy to report any damage no matter how minor." Blanks was not terminated for that incident. He received several other warning notices for infractions of the work rules during the following six years, but none for failing to report an accident. At Dowling's deposition when he was asked why Blanks was not terminated, he testified that a small hydraulic hose was tom when Blanks drove under a low bridge, and the damage was too minor for Blanks to have noticed.
As for Marchand, he received a warning notice from Dowling dated September 1, 1999
5

Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 7 of 17 PageID #:1996
for failing to report damage to the bumper of the truck he drove on August 30, 1999. According to the write-up, the driver assigned to drive the truck on September 1st found some damage to the bumper during his pre-trip inspection. Marchand was the last driver to drive that particular truck, and had not reported any damage in his post-trip paperwork. The warning notice stated "Please report any damages to any truck and note on your pre trip and post trip paper work which you are required to do so [sic] by DOT Regulation and Company Policy." Marchand was not terminated for the incident. Although Marchand's file contains several other warning notices, there are no others for failure to report damage.
Hernandez, as indicated above, was terminated on January 5, 2000 after Groot determined that he had failed to report an accident. On January 4, 2000, supervisor Randy Radatz had received a report from the Village of Morton Grove that a Groot driver had damaged landscaping at a customer's home in Morton Grove. The homeowners had provided a description of the truck and the driver, which was conveyed to Radatz. Radatz reported that he went to the property shortly after receiving the complaint where "he saw distinctive tire tracks that he recognized as belonging to a Groot vehicle and that showed a Groot vehicle had damaged bushes." (Defs.' L.R. 56.1(a) statement re: Hernandez and Pl.'s. resp. at, 131.) According to Radatz, the description matched Hernandez's description and truck number. Moreover, the home where the damage occurred was on Hernandez's recycling route on the day the homeowners reported the damage. Further, Groot collected only recycling in Morton Grove, not garbage, and thus had not sent a garbage truck to the address where the accident occurred? When Radatz asked Hernandez
2This fact is undisputed, even though Hernandez testified at his deposition that a Groot garbage truck also worked the route.
6

Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 8 of 17 PageID #:1997
'
about the damage, he denied (and continues to deny) that he was involved in the incident.
Despite his denial, Radatz concluded, based on the information he had, that Hernandez caused
the damage. Radatz communicated his conclusion to Craig Phillips and Jim Dowling, who
determined that termination was warranted because they believed Hernandez had failed to report
property damage for which he was responsible. Phillips and Dowling found it embarrassing that
the company had to learn of the damage from the Village rather than the driver. Additionally, Phillips ''believed that Hernandez had a pattern of disclaiming responsibility for accidents ... .''3
(Id. at 144.)
Prior to his termination, Hernandez had received several warning notices for various
infractions of the rules, including one warning notice for failure to report an accident. On July
22, 1999, Hernandez backed into a metal sign while reversing to dump a load from his truck. A
supervisor at the dumping site, Bob Cordell, saw the accident. After Cordell and Hernandez discussed the accident,4 Cordell reported the accident to the Groot office. Thus, by the time
Hernandez returned to the Groot facility, Dowling had already learned of the accident from
Cordell. Hernandez received a warning notice and a one-day suspension for the accident, in part
3This belief was evidently based on Hernandez's accident record. In May 1998, Hernandez had a rear-end accident, which he claimed was caused by brake failure. Groot investigated, believed him, and withdrew the discipline. In December 1998, Hernandez had a second rear-end accident. Although he again claimed that the brakes failed, he received a warning notice, a five-day suspension, and driver education after Groot concluded there was no problem with the brakes. In July 1999, Hernandez backed into a sign; he explained that the rearview video camera was not working (a problem he had reported several times), but he admitted the truck also had rearview mirrors. The final incident in Morton Grove was the accident that resulted in his termination.
4According to Hernandez, Cordell saw the accident, they discussed it, and Cordell said he was going to report it to his supervisor. According to Groot, Cordell reported that Hernandez was driving away from the accident without acknowledging it when Cordell stopped him.
7

Case: 1:01-cv-01731 Docum' e' nt #: 134 Filed: 09/02/03 Page 9 of 17 PageID #:1998
because Groot detennined that he had failed to use his rearview mirrors properly and in part because he had not reported the accident. Hernandez did not file a written grievance with his union challenging this warning notice.
OfBlanks, Marchand and Hernandez, only Hernandez had two instances where Groot determined that he had failed to report an accident.5 For that reason alone, Hernandez has failed to show that either Blanks or Marchand received more favorable treatment. Whether or not Hernandez deserved a written warning for failure to report regarding the July 1999 incident is not for the court to determine. See Jackson v. E.J. Brach Corp., 176 F.3d 971, 984 (7th Cir. 1999) (not court's role to "sit as a superpersonnel department that reexamines an entity's business decisions"). IfHernandez wanted to challenge that warning notice, he could have filed a grievance with his union. The fact is, Groot determined that he failed to report an accident, but
opted to issue a warning notice rather than terminate him, just as it did with Blanks and
Marchand. It was only after Groot concluded that Hernandez had failed to report a second accident that Groot terminated his employment. Hernandez has failed to set forth a prima facie case of discriminatory discharge, thus warranting summary judgment on that claim.
B. Guerrero's Discriminatory Discharge Claim Nor can Guerrero's discriminatory discharge claim withstand summary judgment. Groot fired Guerrero for making an unauthorized pick up, specifically, for picking up construction debris from a customer when he was supposed to pick up only yard waste in that municipality. "Rule 17 of Groot's work rules states that Groot will tenninate drivers for dishonesty including
5Regarding Marchand, although the court assumes for present purposes, that he caused the damage, the warning notice states only that he failed to report it, not that he necessarily caused it.
8

Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 10 of 17 PageID #:1999
'[p]roviding unauthorized services ... [or] serving unauthorized accounts."' (Defs.' L.R. S6.l(a)
statement re: Guerrero and Pl.'s resp. at 'lf 69.) Guerrero admits that he picked up construction
debris, and further admits that he violated Groot's work rules, but he believes that he deserved a second chance. In other words, he believes his termination was unfair. Although he points to Joe Esposito as a potentially similarly situated white driver who received such a second chance, the record shows at least three other white drivers, Chris Lewkowitz, Dan Hoffman, and James Dayhoff, who were terminated without progressive discipline the first time Groot discovered them making an unauthorized pick up. Under these circumstances, Guerrero is not entitled to a rebuttable presumption of discrimination under McDonnell Douglas. Moreover, Guerrero expressly testified at his deposition that he does not believe his termination was the result of racial discrimination.6 Given these facts, no reasonable jury could find that Groot terminated Guerrero because of his race. The court thus grants summary judgment in favor of Groot on Guerrero's discriminatory discharge claim. III. Unequal Terms and Conditions of Employment
Hernandez and Guerrero also claim that they were discriminated against in the terms and conditions of their employment. Specifically, they claim that Hispanics, themselves included, were denied promotions, denied light duty, received unequal pay, and were given inferior routes and trucks. Perhaps other Hispanic employees at Groot have viable claims for such unequal
6In a last ditch effort to avoid summary judgment on this claim, Guerrero argues that when he testified that he believes his termination was unfair, he meant that he was discriminated against-despite his unequivocal deposition testimony that his termination was not the result of his race. This argument is disingenuous, particularly because Guerrero presented no evidence whatsoever that he was confused during his deposition, or otherwise misunderstood what he was being asked.
9

Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 11 of 17 PageID #:2000
terms and conditions of employment, but neither Hernandez nor Guerrero do. Their claims that they were denied promotions fail because neither Guerrero nor
Hernandez ever applied for a promotion-which is an essential element of a failure-to-promote claim. Bragg v. Navistar Int'l Transp. Corp., 164 F.3d 373, 377 (7th Cir. 1998). Plaintiffs argue that promotion opportunities were not posted, published or communicated to Hispanics, and thus their failure to apply for a promotion should not be fatal to their claim. The court disagrees. It is undisputed that under the terms of the Private Scavengers Agreement, Groot must post a bid sheet for five working days when a permanent opening becomes available in a bargaining unit job classification, and that bargaining unit employees with at least 12 months seniority can bid on the job. Plaintiffs set forth no evidence that Groot failed to adhere to those requirements, or otherwise concealed promotion opportunities from them, thus leaving their argument wholly unsupported. 7
Similarly, plaintiffs' claims that they were denied light duty lack merit. Neither Hernandez nor Guerrero ever requested light duty. As for the claims that they received unequal pay, there is no evidence in the record that either Hernandez or Guerrero was paid less that they were supposed to be paid under the Private Scavengers Agreement,8 let alone evidence that any similarly situated white drivers were paid more than plaintiffs.
7It is worth noting that with few exceptions, plaintiffs' briefs in opposition to summary
judgment contain no citations to the record in support oftheir arguments. Although the court
reviewed the materials submitted, the court has no duty to "scour the record" in search of facts
that might support a party's claim-it is the party's duty to bring such facts to the court's attention. See L.S. Heath & Son, Inc. v. AT&TInfo. Sys.• Inc., 9 F.3d 561, 567 (7th Cir. 1993).
8In fact, contradicting their own claims, plaintiffs admit that Guerrero was paid $12.50 per hour when Groot could have paid him just $10.00 per hour under the Private Scavengers Agreement.
10

Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 12 of 17 PageID #:2001
Hernandez and Guerrero's claims that Groot assigned them to inferior routes and trucks also fail. Guerrero offers no evidence of any similarly situated white driver who received a better route or truck. What is more, Guerrero's own deposition testimony contradicts his claim. Regarding route assignments, he testified that all drivers, whether white or Hispanic, were assigned some difficult routes and some easy routes. Likewise, when asked whether he felt that all recycling drivers were treated the same, he answered "I feel that [Groot] treated us all equally." (Defs.' L.R. 56.l(a) statement re: Guerrero and Pl.'s resp. at '1[105.) When explicitly asked "Do you feel during your entire employment with Groot, ... that you were treated equally with other drivers for the trucks that you drove?" he responded "Yes. They would treat us equally." (Jd. at '1[107.) In opposing summary judgment, Guerrero does not deny that he gave such testimony at his deposition. Instead, he argues that "in his affidavit he explicitly states that Hispanics were not assigned to the better trucks." (Pl.'s Br. Opp. Mot Summ. J. at 18.) But there is no affidavit on file that says any such thing. No affidavit was included in the materials Guerrero submitted in opposition to summary judgment. Although the court located one affidavit, prepared at the start of his case (dated June 21, 2001, submitted in support ofp1aintiffs' motion to file the first amended complaint), that affidavit says nothing whatsoever about route and truck assignments. Moreover, even ifthat affidavit had addressed route and truck assignments, it is highly unlikely that it could defeat summary judgment. As the Seventh Circuit has held, "Affidavits, though signed under oath by the affiant, are typically ... written by the affiant's lawyer, and when offered to contradict the affiant's deposition are so lacking in credibility as to be entitled to zero weight in summary judgment proceedings unless the affiant gives a plausible explanation for the discrepancy." Beckel v. Wal-Mart Assoc., Inc., 301 F.3d
11

Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 13 of 17 PageID #:2002
621, 623 (7th Cir. 2002). "The explanation, moreover, must come in the affidavit itself ...." Id. Guerrero has failed to establish a prima facie case that he was given inferior route and truck assignments because of his race.
Hernandez's claim fares no better. According to Hernandez's deposition testimony, a good route had few ifany alleys, while a bad route had a lot of alleys; alleys complicate the job because they are narrow, requiring drivers to manuever the truck more. Hernandez was assigned to routes with alleys three days a week, and street routes two days a week. But like Guerrero, he offers no evidence of any similarly situated white driver who received better route or truck assignments. The only evidence offered is that Groot replaced one ofhis ''more or less good routes" in order to assign him to an alley route that had previously been assigned to a white driver. This alone does not establish a prima facie case ofdiscrimination, but even ifit did, Hernandez himself offers a legitimate, non-discriminatory reason for the reassignment. Hernandez testified that he substituted for the white driver, and when Groot saw that he could complete the route more quickly than the other driver, Groot assigned Hernandez to the route permanently. Hernandez thus concedes that Groot had a legitimate business reason for its decision. There is no issue ofpretext here. Hernandez's claim therefore cannot survive summary judgment. III. Hostile Work Environment Claims
Groot also moves for summary judgment on Guerrero and Hernandez's claims that they were subjected to a racially hostile work environment. To succeed on a hostile work environment claim, a plaintiff''must show that (l) he was subjected to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was severe and pervasive so as to
12

Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 14 of 17 PageID #:2003
alter the conditions ofthe employee's environment and create a hostile or abusive working
environment; and (4) there is a basis for employer liability." Mason v. S. fll. Univ., 233 F.3d
1036, 1043 (7th Cir. 2000). Groot argues that neither Hernandez nor Guerrero were exposed to actionable harassment and that even if they were, Groot is not legally responsible for such harassment. Because the court agrees that neither plaintiffhas an actionable harassment claim, it need not address whether there is a basis for employer liability.
Both plaintiffs testified during their depositions regarding racial slurs they heard at Groot. Hernandez testified regarding two incidents in which he heard racial slurs, both of which occurred during arguments among Groot drivers while working away from Groot's main facility. In one incident, on a Friday in Niles, white, Hispanic and black drivers got into an argument, allegedly while supervisor Randy Radatz was present. Hernandez heard the words "nugger" [sic] and ''monkey'' used against blacks. He also heard the word "spic," which he did not understand at the time. (Hernandez's primary language is Spanish; his English is limited.) He testified that he learned later only that it is a bad word, not that it is a racially derogatory word relating to Hispanic people. In the second incident, on a Thursday in Niles, he heard the slur ''wetback." The following day, he asked a coworker what the word meant, and learned it was a derogatory term regarding Hispanics. Although Hernandez heard the slurs, none ofthem were directed at him. In further support ofhis claim, Hernandez offers testimony from other Hispanic and black Groot drivers regarding slurs they heard at Groot, though nothing in the record suggests that Hernandez knew about those incidents while he worked at Groot.
Groot argues that because Hernandez did not understand the words "spic" or ''wetback" when he heard them, those words caunot support his hostile work environment claim. The court
13

Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 15 of 17 PageID #:2004
disagrees, at least regarding the term ''wetback." It is true that a comment cannot be harassing unless the plaintiffperceives the comment to be discriminatory. See, e.g., Huffv. Sheahan, No. 97 C 4568, 2001 U.S. Dist. LEXIS 14656, at *24 (N.D. lll. Sept. 19, 2001) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17,21 (1993)). But Hernandez learned the very next day that ''wetback" was a racially derogatory term for Hispanics, thus affecting his perception of the prior day's incident, and his work environment. The fact that he did not know the slur's meaning at the precise moment he heard it makes no difference (although it would likely make a difference if he learned the meaning only after his employment ended, because his perception of the work environment at the time ofhis employment is what matters). In contrast, the fact that Hernandez heard the word "spic" used cannot support his hostile work environment claim because, to this day, he does not perceive the word to be a racial slur.
Nevertheless, the evidence before the court is insufficient to support a claim that Hernandez was subjected to a hostile work environment. A plaintiff"must produce admissible evidence that he personally was subjected to discrimination." Hawkins v. Groot Indus. Inc., No. 01 C 1731,2003 WL 1720069, at *3 (N.D. lll. Mar. 31, 2003) (emphasis added). Here, Hernandez offers evidence only ofcomments directed at other employees. As recognized by the Seventh Circuit, ''the impact of 'second-hand harassment' is obviously not as great as the impact of harassment directed at the plaintiff." Gleason v. Mesirow Fin. Inc., 118 F.3d 1134, 1144 (7th Cir. 1997) (internal citation omitted). Further, he heard racial slurs used on only two occasions: one incident in which he heard a word that he perceived to be a slur against Hispanics,9 and a
~emandez argues that, in addition to the specific incidents he described, he testified that ''wetback" was a word used frequently at Groot, and that his inability to give more specifics about each instance is not fatal. Under other circumstances, the court might agree. See Hawkins,
14

Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 16 of 17 PageID #:2005
second incident in which he heard slurs directed at blacks. These isolated incidents ofracial
slurs directed at others are simply not enough for a reasonable jury to conclude that Hernandez
experienced racial harassment severe and pervasive enough to constitute a hostile work
envirorunent. Had Hernandez himself been the target of any ofthe racial slurs, the result might
be different because in evaluating his hostile work envirorunent claim, the court considers '"the
totality ofcircumstances, including evidence ofharassment directed at employees other than
plaintiff.'" Hawkins, 2003 WL 1720069 at *3. But that is not the case here. While others'
experiences can buttress a plaintiffs claim, they cannot form the entire basis ofthe plaintiffs claim, at least under the circumstances presented here. 10
Guerrero's hostile work envirorunent claim fails for the same reasons: none ofthe
derogatory comments about Hispanics were directed at him, and he heard them on only three
isolated occasions. In July 1998, he overheard a group ofwhite drivers, including Chris Lewkowicz, making comments about "stupid" Mexicans taking away their jobs. On another occasion in July 1998, Guerrero overheard Lewkowicz and three other white drivers again
making comments about "Dumb Latinos" and "Dummy Latinos" taking away their work. Then
2003 WL 1720069 at *2 (where hostile work envirorunent claim involves ongoing conduct, plaintiff"'need not date stamp every incident"'). But Hernandez's testimony about the other times he heard the word suggests it was used in a joking context, not a hostile one-or at least that that was how Hernandez perceived its usage. When Hernandez testified that "wetback" was used frequently at Groot, (Hernandez Dep. 65:20-66: 1), he further explained that employees at Groot "always joke with each other excessively; and ifone starts joking around, sometimes one has to take what one gets." (Id. 66:3-7.) As an example of the excessive joking, he explained, ''they would call me skinny guy. I know I'm thin, but I'm healthy." (/d. 66:7-8.)
1'Nor does Hernandez's affidavit, prepared at the start of his case, save his claim. As explained earlier, affidavits that contradict deposition testimony are entitled to no weight on summary judgment "unless the affiant gives a plausible explanation for the discrepancy," which Hernandez has not done. Beckel, 301 F.3d at 623.
15

Case: 1:01-cv-01731 Document #: 134 Filed: 09/02/03 Page 17 of 17 PageID #:2006
•
in September 1998, he heard Lewkowicz say "Hello Taco Bell" to Hispanic driver Fausto Arceo. 11 Like Hernandez, there is simply insufficient evidence to support a hostile work envirorunent claim by Guerrero. Conclusion
For the reasons explained above, the court grants Groot's motion for summary judgment against Hernandez and Guerrero on all claims.
ENTERED:
Dated: September 2, 2003
11Guerrero also heard Lewkowicz call another Hispanic driver ''monster," apparently repeatedly. This does not help his claim because it has not been shown that there is anything racial about calling someone "monster."
16

 
 Case: 1:01-cv-01731 Document #: 160 Filed: 09/29/04 Page 1 of 1 PageID #:2169
Minute Order Form (06/97)
United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

Joan B. Gottschall

Sitting Judge if Other than Assigned Judge

CASE NUMBER

OIC1731

DATE

9/29/2004

CASE TITLE

Hawkins vs. Groot Industries
[In the followingbox(a) indicate the party filmgthe motion, e.g., plamt1ff, defendant, 3rd partyplamtlff, and (b) state bneflythe nature of the motion being presented.]

DOCKEJ:. Ji:!'Tfl.Y· ------ -_

(I) D

Filed motion of [use listing in "Motion" box above.]

(2)

D

Brief in support of motion due ___.

(3)

D

Answer brief to motion due_ _ _. Reply to answer brief due_ _ _.

(4)

D

Ruling/Hearing on ___ set for ___ at _ __

(5)

D

Status hearing[held/continued to] [set for/re-set for] on ___ set for _ _ _ at _ _ _.

(6)

D

Pretrial conference[heldlcontinued to] [set for/re-set for] on _ _ _ set for _ _ _ at ___.

(7) D

Trial[set for/re-set for] on ___ at ___.

(8)

D

[Bench/Jury trial] [Hearing] held/continued to _ _ _ at ___.

(9)

D

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to] D FRCP4(m) 0 Local Rule 41.1 0 FRCP4J(a)(l) 0 FRCP4l(a)(2).

(10) •

[Other docket entry] Enter order. Pursuant to plaintiffs' motion, and the recommendation of

Magistrate Judge,.!},eyes, this case is dismissed with leave to reinstate within 60 days (ll/28/04) in the

event .a settlement agreement is not effectuated. All pending motions, including plaintiffs' motion for

class certification (i35-l], are denied without prejudice tore-file in the event this case is reinstated.

(11) D

[For furth.er detailsee order (on reverse side of/attached to) the original minute order.]

No notices required, advised in open court.
1--No notices required.
1-
Notices mailed by judge's staff.
I-
Notified counsel by telephone.
I-
0-- Docketing to mail notices. Mail AO 450 form. 1---
Copy to judge/magistrate judge.

number of notices
SEP 3 0 20114
date docketed

courtroom deputy's initials

D~te!liiTie rec~iVed in central Clerk's Office

date mailed notice mailing deputy initials

Document

. .

Number
.

 
 Case: 1:01-cv-1731 As of: 10/17/2010 11:47 PM CDT 1 of 14
ASHMAN, STAYED, TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 4.1.1 (Chicago)
CIVIL DOCKET FOR CASE #: 1:01−cv−01731

Hawkins, et al v. Groot Ind Inc, et al Assigned to: Honorable Joan B. Gottschall Demand: $0 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 03/12/2001 Date Terminated: 09/29/2004 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Anderson Hawkins

represented by Uche O. Asonye Asonye and Associates 39 S. LaSalle St. Suite 815 Chicago, IL 60603 (312) 795−9110 Email: courtfilings@aa−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Giles Randolph Asonye and Associates 11 S. LaSalle St. Suite 2140 Chicago, IL 60603 (312) 795−9110 Email: justin@jrandolphlaw.com ATTORNEY TO BE NOTICED

Nydia Molina Asonye and Associates 11 S. LaSalle St. Suite 2140 Chicago, IL 60603 (312) 795−9110

Plaintiff
Lawrence Woodfork on behalf of themselves and all others similarly situated

represented by Uche O. Asonye (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Giles Randolph (See above for address) ATTORNEY TO BE NOTICED

Nydia Molina (See above for address)

Plaintiff Javier Guerrero

represented by Nydia Molina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Giles Randolph (See above for address) ATTORNEY TO BE NOTICED

Uche O. Asonye

Case: 1:01-cv-1731 As of: 10/17/2010 11:47 PM CDT 2 of 14

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff Enrique Hernandez

represented by Justin Giles Randolph (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Groot Industries, Inc.
Defendant Groot Recycling and Waste Services, Inc.

represented by David Elliot Metz Seyfarth Shaw LLP 55 Easet Monroe Street Suite 4200 Chicago, IL 60603 (312) 460−5000 TERMINATED: 04/11/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Kenneth Ross Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603−5577 (312) 460−5000 Fax: (312) 460−7000 Email: jross@seyfarth.com ATTORNEY TO BE NOTICED
John M. Vande Walle Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603−5577 (312) 460−5000 Fax: (312) 460−7000 Email: jvandewalle@seyfarth.com ATTORNEY TO BE NOTICED
William Francis Dugan Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603−5577 (312) 460−5000 Fax: (312) 460−7000 Email: wdugan@seyfarth.com ATTORNEY TO BE NOTICED
represented by David Elliot Metz (See above for address) TERMINATED: 04/11/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Kenneth Ross (See above for address) ATTORNEY TO BE NOTICED

Case: 1:01-cv-1731 As of: 10/17/2010 11:47 PM CDT 3 of 14
John M. Vande Walle (See above for address) ATTORNEY TO BE NOTICED
William Francis Dugan (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/12/2001 03/12/2001 05/21/2001 05/25/2001 05/25/2001 06/06/2001 06/08/2001 07/20/2001 07/25/2001
08/02/2001 11/02/2001 11/14/2001
12/05/2001
12/19/2001
01/10/2002

# Docket Text
1 COMPLAINT (Attachments); Jury demand − Civil cover sheet − Appearance(s) of Uche O. Asonye as attorney(s) for plaintiffs ( No summons(es) issued.) ( Documents: 1−1 through 1−3) (maf) (Entered: 03/13/2001)
RECEIPT regarding payment of filing fee paid; on 3/12/01 in the amount of $ 150.00, receipt # 1023515. (maf) (Entered: 03/13/2001)
SCHEDULE set on 5/21/01 by Hon. James B. Moran : Status hearing set to 9:45 6/6/01 pursuant to rule l6 of the F.R.C.P. Mailed notice (wah) (Entered: 05/21/2001)
2 ATTORNEY APPEARANCE for defendants Groot Industries, Inc., Groot Recycling and Waste Mgt Svc, Inc. by David Elliot Metz, Jeffrey Kenneth Ross. (maf) (Entered: 05/25/2001)
3 ANSWER by defendants to complaint [1−1]; Notice. (maf) (Entered: 05/25/2001)
SCHEDULE set on 6/6/01 by Hon. James B. Moran : Status hearing held. No notice (wah) (Entered: 06/06/2001)
4 REASSIGNMENT ORDER of 6/8/01 Case reassigned to Hon. Joan B. Gottschall from the Hon. James B. Moran . (For further detail see order.) Mailed notice (maf) (Entered: 06/11/2001)
5 MOTION by plaintiffs to set a briefing schedule for motion for class certification ; Notice (yap) (Entered: 07/26/2001)
6 MINUTE ORDER of 7/25/01 by Hon. Joan B. Gottschall : Status hearing set to 8/2/01 at 9:30 a.m. Plaintiff's motion to set a briefing schedule for motion for class certification [5−1] is granted. Motion for class certification is due by 11/23/01. Response by 12/21/01. Reply to 1/4/02. Mailed notice (yap) (Entered: 07/26/2001)
SCHEDULE set on 8/2/01 by Hon. Joan B. Gottschall : Status hearing held. Status hearing date will be set with ruling on class certification motion by mail. In court notice (rj) (Entered: 08/02/2001)
7 AGREED MOTION by parties to extend the briefing schedule for motion for class certification by ninety(90)days, or until 2/21/02 ; Notice (las) (Entered: 11/15/2001)
8 MINUTE ORDER of 11/14/01 by Hon. Joan B. Gottschall : Agreed motion by the parties to extend the briefing schedule for motion for class certification by ninety(90)days,or until 2/21/02 is granted [7−1]. Motion for class certification is due 2/21/02. Response is due by 3/22/02. Reply is due by 4/5/02. Mailed notice. (las) (Entered: 11/15/2001)
9 MOTION by plaintiffs for leave to file their first amended class action complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure to add parties and to include additional allegations of discrimination ; Brief in support (Attachments); Notice. (lc) (Entered: 12/20/2001)
10 MINUTE ORDER of 12/19/01 by Hon. Joan B. Gottschall: Answer breif to motion due 01/09/02. Reply to answer breif due 01/23/02. Ruling on plaintiffs' motion for leave to file their first amended complaint [9−1] will be by mail. Mailed notice. (fce) (Entered: 12/20/2001)
11 ATTORNEY APPEARANCE for defendants Groot Industries, Inc. and Groot Recycling and Waste Services, Inc. by John M. Vande Walle. (cem) (Entered:

Case: 1:01-cv-1731 As of: 10/17/2010 11:47 PM CDT 4 of 14

01/10/2002 01/23/2002 02/27/2002 03/13/2002
03/29/2002 04/08/2002
06/21/2002 07/01/2002 07/15/2002 07/15/2002 07/15/2002 07/15/2002 07/15/2002 07/15/2002
07/15/2002 07/15/2002
07/16/2002
07/16/2002
07/16/2002 07/17/2002

01/11/2002)
12 RESPONSE by defendants to plaintiffs' motion to amend [9−1]; Notice. (cem) (Entered: 01/11/2002)
13 REPLY by plaintiffs to defendants' response to plaintiffs' motion to amend [12−1] (Attachments). (mw) (Entered: 01/25/2002)
14 EXPEDITED REFERRAL ORDER: Case referred to Hon. Martin C. Ashman for settlement conference Mailed notice. (rj) (Entered: 02/27/2002)
SCHEDULE set on 3/13/02 by Hon. Martin C. Ashman : Settlement conference set for 2:00 4/10/02 in chambers 1366. All clients and parties with full authority to settle are to be physically present. Failure to have parties with full authority to settle present may result in the imposition of severe sanctions. (For further details see attached standing order.) Mailed notice (is) (Entered: 03/13/2002)
15 AGREED MOTION by parties to reset the date of the settlement conference ; Notice. (yp) (Entered: 04/09/2002)
16 MINUTE ORDER of 4/8/02 by Hon. Martin C. Ashman : Agreed motion to reset the date of the settlement conference is granted [15−1]. Settlement conference is reset to 6/19/02 at 2:00 p.m. Mailed notice (yp) (Entered: 04/09/2002)
SCHEDULE set on 6/21/02 by Hon. Martin C. Ashman : Settlement conference reset to 11:00 7/18/02. Mailed notice (is) (Entered: 06/21/2002)
CITATION to Discover Assets Issued as to Patrick Botica and Michael Tarelco (2 original &2 copies). (hmb) (Entered: 07/02/2002)
17 MEMORANDUM by defendants in support of their motion for summary judgment re plaintiff Hawkins. (gcy) (Entered: 07/16/2002)
18 EXHIBITS list by defendants [17−1] (Attachments). (gcy) (Entered: 07/16/2002)
19 MEMORANDUM by defendants in support of their motion for summary judgment re plaintiff Woodfork. (gcy) (Entered: 07/16/2002)
20 EXHIBITS list by defendant [19−1] (Attachments). (gcy) (Entered: 07/16/2002)
24 MOTION by defendants' for summary judgment re plaintiff Woodfork ; Notice. (hmb) (Entered: 08/05/2002)
25 STATEMENT by defendants' of undisputed material facts in support of their motion for summary judgment as to plaintiff Woodfork [24−1]. (hmb) (Entered: 08/05/2002)
26 MOTION by defendants' for summary judgment re plaintiff Hawkins ; Notice. (hmb) (Entered: 08/05/2002)
27 STATEMENT by defendants' of undisputed material facts in support of their motion for summary judgment as to plaintiff Hawkins [26−1]. (hmb) (Entered: 08/05/2002)
28 MOTION by plaintiffs' to continue defendants' summary judgment motion in order to complete discovery and briefing on plaintiffs' motion for class certification ; Notice. (hmb) (Entered: 08/05/2002)
29 MEMORANDUM by plaintiffs' in support of their motion to continue defendants' summary judgment motion in order to complete discovery and briefing on plaintiffs' motion for class certification [28−1] (Attachments). (hmb) (Entered: 08/05/2002)
30 AFFIDAVIT of Uche O. Asonye, attorney for plaintiffs'. (hmb) (Entered: 08/05/2002)
31 AMENDED NOTICE by defendants' of motion for summary judgment re plaintiff Woodfork [24−1] (hmb) (Entered: 08/05/2002)

Case: 1:01-cv-1731 As of: 10/17/2010 11:47 PM CDT 5 of 14

07/17/2002 07/18/2002 07/25/2002 07/26/2002 07/30/2002 07/31/2002
08/05/2002 08/16/2002 08/16/2002 08/16/2002 08/16/2002 08/21/2002 08/27/2002 08/30/2002
09/04/2002

32 AMENDED NOTICE by defendants' of motion for summary judgment re plaintiff Hawkins [26−1] (hmb) (Entered: 08/05/2002)
21 MINUTE ORDER of 7/18/02 by Hon. Martin C. Ashman : Settlement conference held − unsuccessful. All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Terminating the case referral to Hon. Martin C. Ashman regarding [9−1] . No notice (hmb) (Entered: 07/19/2002)
33 MOTION by plaintiffs' pursuant to rule 30(d) to direct counsel for defendants' to permit a fair deposition examination of defendants' division manager, Craig Phillips , and for sanctions (Attachments); Notice. (hmb) (Entered: 08/05/2002)
22 RESPONSE by defendants' to plaintiffs' motion to continue Groot's motions for summary judgment. (hmb) (Entered: 07/29/2002)
23 REPLY by plaintiffs' to Groot's response to plaintiffs' motion to continue Groot's motion for summary judgment. (hmb) (Entered: 07/31/2002)
34 MINUTE ORDER of 7/31/02 by Hon. Joan B. Gottschall : Plaintiff's motion to continue defendants' summary judgment motion in order to complete discovery and briefing on plaintiffs' motion for class certification is denied for reasons stated on the record [28−1]. Plaintiffs' motion pursuant to rule 30(d) to direct counsel for defendants' to permit a fair deposition examination of defendants' division manager, Craig Phillips [33−1] and for sanctions [33−2] is entered and continued to 8/30/02 at 9:30 a.m. Response is due by 8/21/02. Answer brief to defendants' motions for summary judgment re: plaintiffs' Woodfork and Hawkins [26−1], [24−1] due 10/9/02. Reply to answer brief due 10/30/02. Mailed notice (hmb) (Entered: 08/05/2002)
35 MINUTE ORDER of 8/5/02 by Hon. Joan B. Gottschall: Status hearing set for 8/29/02 at 9:30 a.m. Plaintiffs' motion for leave to file their first amended class action complaint is granted in part and denied in part [9−1]. (Entered Order) Mailed notice (vmj) (Entered: 08/07/2002)
36 DECLARATION of Georgine Wendell regarding motions for summary judgment re plaintiff Hawkins [26−1] re plaintiff Woodfork [24−1]; Notice. (hmb) (Entered: 08/19/2002)
37 DECLARATION of Jim Dowling regarding motions for summary judgment re plaintiff Hawkins [26−1], re plaintiff Woodfork [24−1]; Notice. (hmb) (Entered: 08/19/2002)
38 DECLARATION of Craig Phillips regarding motions for summary judgment re plaintiff Hawkins [26−1], re plaintiff Woodfork [24−1]; Notice. (hmb) (Entered: 08/19/2002)
39 DECLARATION of C.J. Sturwold regarding motions for summary judgment re plaintiff Hawkins [26−1], re plaintiff Woodfork [24−1]; Notice. (hmb) (Entered: 08/19/2002)
40 RESPONSE by Groot Ind Inc and Groot Recycling to plaintiffs' motion re Phillips deposition [33−1] (Attachments). (hmb) (Entered: 08/22/2002)
41 MOTION by plaintiffs' for leave to file their second amended class action complaint (Attachments); Notice. (hmb) (Entered: 09/03/2002)
42 MINUTE ORDER of 8/30/02 by Hon. Joan B. Gottschall : Answer brief to plaintiffs' motion for leave to file their second amended class action complaint due 9/13/02 [41−1]. Reply to answer brief due 9/27/02. Ruling on motion [41−1] will be by mail. Plaintiffs' motion pursuant to Rule 30(d) to direct counsel for defendants' to permit a fair deposition examination of defendants' division manager, Craig Phillips is granted [33−1], and for sanctions is granted in part and denied in part [33−2]. Oral motion by plaintiffs' counsel for an extra hour beyond 7 hour limit to take deposition is granted. Mailed notice (hmb) (Entered: 09/03/2002)
44 MOTION by plaintiffs' for class certification ; Memorandum in support; Notice. (hmb) (Entered: 09/17/2002)

Case: 1:01-cv-1731 As of: 10/17/2010 11:47 PM CDT 6 of 14

09/04/2002 09/04/2002 09/13/2002 09/13/2002
09/13/2002 09/26/2002 10/03/2002 10/04/2002 10/04/2002 10/04/2002 10/04/2002 10/07/2002 10/08/2002
10/15/2002 10/15/2002 10/15/2002 10/16/2002

45 CLASS CERTIFICATION EXHIBITS by plaintiff [44−1] (hmb) (Entered: 09/17/2002)
46 MOTION by plaintiffs' to file memorandum in support of motion for class certification in excess of 15 pages . (hmb) (Entered: 09/17/2002)
43 RESPONSE by defendants' to plaintiffs' motion for leave to file their second amended class action complaint [41−1] (Attachments). (hmb) (Entered: 09/16/2002)
47 MINUTE ORDER of 9/13/02 by Hon. Joan B. Gottschall : Answer brief to plaintiffs' motion for class certification [44−1] due 10/15/02. Reply to answer brief due 10/29/02. Ruling on plaintiff's motion for class certification will be by mail. Plaintiff's motion for leave to file memorandum in support of motion for class certification in excess of 15 pages is granted [46−1]. Mailed notice (hmb) (Entered: 09/17/2002)
48 ATTORNEY APPEARANCE for defendants' by William Francis Dugan (hmb) (Entered: 09/18/2002)
49 REPLY by plaintiffs' to defendants' response to plaintiff's motion for leave to file their second amended class action complaint [41−1] (Attachments). (hmb) (Entered: 09/27/2002)
52 MOTION by plaintiffs' to modify the briefing schedule for defendants' summary judgment motions by 12 days (Attachments); Notice. (hmb) (Entered: 10/09/2002)
50 STATEMENT by defendant of undisputed material facts in support of their motion for summary judgment re plaintiff Guerrero (hmb) (Entered: 10/07/2002)
51 COMPENDIUM OF DOCUMENTS by defendants' in support of their motion for summary judgment re plaintiff Guerrero (Attachments). (hmb) (Entered: 10/07/2002)
55 MOTION by defendant for summary judgment re: plaintiff Guerrero ; (hmb) (Entered: 10/10/2002)
56 MEMORANDUM of law by defendants' in support of their motion for summary judgment re: plaintiff Guerrero [55−1] (hmb) (Entered: 10/10/2002)
54 ENTERED ORDER regarding the briefing schedule for defendants' motions for summary judgment and plaintiffs' motion for class certification. (hmb) (Entered: 10/09/2002)
53 MINUTE ORDER of 10/8/02 by Hon. Joan B. Gottschall : Enter agreed order. Plaintiff's motion to modify the briefing schedule for defendants' summary judgment motions by 12 days is granted [52−1]. Regarding defendants' motion for summary judgment in connection with plaintiffs', Hawkins [26−1] and Woodfork [24−1]: plaintiffs' responses to defendants' motions for summary judgment are due 10/23/02. Defendants' reply by 11/13/02. Regarding defendants' motion for summary judgment in connection with plaintiff, Guerrero: Plaintiff's response to defendants' motion for summary judgment are due 11/14/02. Defendants' reply by 11/25/02. Defendants' response to plaintiffs' motion for class certification is due by 11/4/02 [44−1]. Plaintiffs' reply is due by 11/18/02. Mailed notice (hmb) (Entered: 10/09/2002)
58 MOTION by defendants' for summary judgment re: plaintiff Hernandez ; Memorandum of law in support; Notice. (hmb) (Entered: 10/21/2002)
59 STATEMENT by defendants' of undisputed material facts in support of their motion for summary judgment re: plaintiff Hernandez [58−1] (hmb) (Entered: 10/21/2002)
60 COMPENDIUM of documents by defendants' in support ot their motion for summary judgment re: plaintff Hernandez (Attachments). (hmb) (Entered: 10/21/2002)
61 MOTION by defendants' to correct 8/30/02 order (Attachments); Notice. (hmb) (Entered: 10/21/2002)

Case: 1:01-cv-1731 As of: 10/17/2010 11:47 PM CDT 7 of 14

10/18/2002 10/18/2002
10/18/2002
10/18/2002
10/23/2002 10/23/2002 10/23/2002 10/24/2002 10/24/2002 10/30/2002 10/30/2002 10/30/2002 10/30/2002 10/30/2002 10/30/2002 10/30/2002

57 EXPEDITED REFERRAL ORDER: Case referred to Hon. Martin C. Ashman for discovery supervision Mailed notice. (rj) (Entered: 10/19/2002)
62 MINUTE ORDER of 10/18/02 by Hon. Joan B. Gottschall : Answer brief to defendants' motion for summary judgment re: plaintiff Hernandez [58−1] due on 11/18/02. Reply to answer brief due 12/2/02. Ruling on motion [58−1] will be by mail. Mailed notice (hmb) (Entered: 10/21/2002)
63 MINUTE ORDER of 10/18/02 by Hon. Joan B. Gottschall : Defendants' motion to correct 8/30/02 order is granted as follows: [61−1] The court did not intend to sanction anyone in its 8/30/02 order. The court sees no reason to correct the order beyond this clarification. No appearance is required 10/23/02 at 9:30 a.m. Mailed notice (hmb) (Entered: 10/21/2002)
64 MINUTE ORDER of 10/18/02 by Hon. Joan B. Gottschall : Briefing schedule as to defendants' motion for summary judgment in connection with plaintiff, Hernandez [58−1] is extended as follows: response is due by 12/9/02. Reply is due 1/10/03. (Entered Order.) Mailed notice (hmb) (Entered: 10/24/2002)
SCHEDULE set on 10/23/02 by Hon. Martin C. Ashman : Status hearing set to 10:00 11/1/02 in courtroom 1386. Mailed notice (is) (Entered: 10/23/2002)
67 MOTION by plaintiffs' for leave to file briefs in response to defendants' motion for summary judgment in excess of 15 pages ; Notice. (hmb) (Entered: 10/31/2002)
69 SUMMARY JUDGMENT EXHIBITS by plaintiffs' [58−1], [55−1], [26−1], [24−1] (hmb) (Entered: 10/31/2002)
65 TRANSCRIPT of proceedings for the following date(s): 7/31/02 Before the Honorable Joan B. Gottschall (hmb) (Entered: 10/25/2002)
66 TRANSCRIPT of proceedings for the following date(s): 8/30/02 Before the Honorable Joan B. Gottschall (hmb) (Entered: 10/25/2002)
68 MINUTE ORDER of 10/30/02 by Hon. Joan B. Gottschall : Plaintiffs' motion for leave to file briefs in response to defendants' motion for summary judgment in excess of 15 pages is granted [67−1]. Mailed notice (hmb) (Entered: 10/31/2002)
70 RESPONSE by plaintiff Woodfork to defendants' statement of undisputed material facts in support of their motion for summary judgment as to plaintiff Woodfork [24−1] (hmb) (Entered: 10/31/2002)
71 RESPONSE by plaintiff Hawkins to defendants' statement of undisputed material facts in support of their motion for summary judgment as to plaintiff Hawkins [26−1] (hmb) (Entered: 10/31/2002)
72 STATEMENT by plaintiffs' of additional facts which require the denial of defendants' summary judgment motion pursuant to Rule 56.1(b)(3)(B) (hmb) (Entered: 10/31/2002)
73 BRIEF by plaintiff Hawkins in response to defendants' motion for summary judgment (Attachments). (hmb) (Entered: 10/31/2002)
74 BRIEF by plaintiff Woodfork in response to defendants' motion for summary judgment (Attachments). (hmb) (Entered: 10/31/2002)
75 MINUTE ORDER of 10/30/02 by Hon. Joan B. Gottschall : Enter agreed order. Defendants' response to plaintiffs' motion for class certification is due by 12/5/02 [44−1]. Plaintiffs' reply is due by 1/10/03. Defendants' replies to plaintiffs' responses to defendants' summary judgment motions related to Hawkins and Woodfork are due by 11/25/02. Plaintiffs responses to defendants' summary judgment motion related to Javier Guerrero are due by 11/14/02. Defendants' reply is due by 12/15/02. Plaintiffs' response to defendants' summary judgment motion related to Enrique Hernandez is due by 12/9/02. defendants' reply is due 1/10/03. (Entered Agreed Order Regarding the Briefing Schedules for Plaintiffs' Class Certification Motion and Defendants' Summary Judgment Motions.) Mailed notice (hmb) (Entered: 10/31/2002)

Case: 1:01-cv-1731 As of: 10/17/2010 11:47 PM CDT 8 of 14

10/31/2002 10/31/2002 11/14/2002 11/19/2002 11/22/2002
11/22/2002 11/22/2002
11/22/2002 11/22/2002 11/27/2002 12/04/2002
12/05/2002 12/05/2002 12/05/2002 12/05/2002 12/09/2002 12/09/2002 12/09/2002

SCHEDULE set on 10/31/02 by Hon. Martin C. Ashman : Status hearing reset to 10:00 11/19/02 . Mailed notice (is) (Entered: 10/31/2002)
76 LETTER from John Vande Walle, attorney for defendants' to the clerk of court dated 10/30/02. (hmb) (Entered: 11/05/2002)
77 MOTION by Javier Guerrero for leave to file his brief in response to defendants' motion for summary judgment in excess of 15 pages ; Notice. (air) (Entered: 11/25/2002)
SCHEDULE set on 11/19/02 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 2/13/03 . Mailed notice (is) (Entered: 11/19/2002)
78 MINUTE ORDER of 11/22/02 by Hon. Joan B. Gottschall: Plaintiff Guerrero's motion for leave to file his brief in response to defendants' motion for summary judgment in excess of 15 pages is granted [77−1]. Mailed notice (air) (Entered: 11/25/2002)
79 STATEMENT by Javier Guerrero of additional facts which require the denial of defendants' summary judgment motion pursuant to Rule 56.1(b)(3)(B). (air) (Entered: 11/25/2002)
80 BRIEF IN RESPONSE by Javier Guerrero to defendants' motion for summary judgment re: plaintiff Hernandez [58−1] re: plaintiff Guerrero [55−1] re plaintiff Hawkins [26−1], re plaintiff Woodfork [24−1] (Attachments). (air) (Entered: 11/25/2002)
81 RESPONSE by Javier Guerrero to defendants' statement of undisputed material facts in support of their motion for summary judgment re: plaintiff Guerrero [55−1]. (air) (Entered: 11/25/2002)
82 SUMMARY JUDGEMENT EXHIBITS by Javier Guerrero. (air) (Entered: 11/25/2002)
87 CONSOLIDATED AGREED MOTION by defendants' to exceed 15 page limitation , and for extension of time to file response ; Notice. (hmb) (Entered: 12/06/2002)
88 MINUTE ORDER of 12/4/02 by Hon. Joan B. Gottschall : Consolidated agreed motion by defendants to exceed 15 page limitation for their summary judgment reply briefs concerning Anderson Hawkins and Larry Woodfork [87−1], and for extension of time to file response is granted [87−2]. Defendants' responses to plaintiff's motion for class certification is due by 12/12/02 [44−1]. Plaintiff's reply is due by 1/20/03. Mailed notice (hmb) (Entered: 12/06/2002)
83 RESPONSE by defendants' to Hawkins and Woodfork's Rule 56.1 (3)(B) statement [72−1] (hmb) (Entered: 12/06/2002)
84 APPENDIX by defendants' to their responses to plaintiffs' statement of additional facts [72−1]. (hmb) (Entered: 12/06/2002)
85 REPLY brief by defendants' in support of its motion for summary judgment regarding Woodfork [24−1]. (hmb) (Entered: 12/06/2002)
86 REPLY brief by defendants' in support of its motion for summary judgment regarding Hawkins [26−1]. (hmb) (Entered: 12/06/2002)
89 MOTION by plaintiff Enrique Hernandez for leave to to file his brief in response to defendants' motion for summary judgment in excess of 15 pages ; Notice. (hmb) (Entered: 12/16/2002)
90 RESPONSE by plaintiff Hernandez to defendants' statement of undisputed material facts in support of their motion for summary judgment as to plaintiff Hernandez [58−1] (hmb) (Entered: 12/16/2002)
91 STATEMENT by plaintiff Hernandez of additional facts which require the denial of defendants' summary judgment motion pursuant to Rule 56.1(b)(3)(B). (hmb) (Entered: 12/16/2002)

Case: 1:01-cv-1731 As of: 10/17/2010 11:47 PM CDT 9 of 14

12/09/2002 12/13/2002
12/13/2002 12/17/2002 12/19/2002 12/20/2002 12/20/2002 12/20/2002 12/20/2002
01/03/2003 01/06/2003 01/08/2003 01/10/2003 01/10/2003 01/16/2003 01/17/2003 01/22/2003
01/23/2003 01/23/2003

92 SUMMARY JUDGMENT EXHIBITS by enrique Hernandez. (hmb) (Entered: 12/16/2002)
93 MINUTE ORDER of 12/13/02 by Hon. Joan B. Gottschall : Plaintiff, Hernandez's motion for leave to to file his brief in response to defendants' motion for summary judgment in excess of 15 pages is granted [89−1]. Mailed notice (hmb) (Entered: 12/16/2002)
94 BRIEF by plaintiff Hernandez in response to defendants' motion for summary judgment (Attachments). (hmb) (Entered: 12/16/2002)
97 MOTION instanter by defendant for extension of time to file response brief , and motion insanter for leave to file briefs in excess of 15 pages ; Notice. (hmb) (Entered: 12/24/2002)
103 MOTION by plaintiff for leave to file an additional appearance ; Notice. (hmb) (Entered: 01/10/2003)
95 RESPONSE by defendants' to Guerrero's Rule 56.1(b)(3)(B) statement [79−1] (hmb) (Entered: 12/23/2002)
96 REPLY brief by defendant in support of its motion for summary judgment regarding plaintiff Guerrero [55−1]; Notice. (hmb) (Entered: 12/23/2002)
98 MEMORANDUM by defendants' in opposition to plaintiffs' motion for class certification [44−1] (Attachments). (hmb) (Entered: 12/24/2002)
99 MINUTE ORDER of 12/20/02 by Hon. Joan B. Gottschall : Defendants' motion for extension of time to 12/17/02 to file response to plaintiffs' motion for class certification and for extension of time to 12/20/02 to file their reply brief on their motion for summary judgment on the claims of plaintiff Guerrero is granted. Defendants' motion to file response brief in excess of 15 pages on the motion for class certification [97−1] and reply brief in excess of 15 pages on their motion for summary judgment is granted [97−2]. Mailed notice (hmb) (Entered: 12/24/2002)
101 MOTION by plaintiffs' for leave to file an additional appearance ; Notice. (hmb) (Entered: 01/10/2003)
100 ATTORNEY APPEARANCE for plaintiffs' Anderson Hawkins, Lawrence Woodfork and Javier Guerrero by Nydia Molina (hmb) (Entered: 01/07/2003)
104 MINUTE ORDER of 1/8/03 by Hon. Joan B. Gottschall : Plaintiff's motion for leave to file an additional appearance of Nydia Milona is granted [103−1]. Mailed notice (hmb) (Entered: 01/10/2003)
102 MINUTE ORDER of 1/10/03 by Hon. Joan B. Gottschall : Plaintiffs' motion for leave to file the additional appearance of Nydia Molina is granted [101−1]. Mailed notice (hmb) (Entered: 01/10/2003)
105 ATTORNEY APPEARANCE for plaintiffs' by Nydia Molina. (hmb) (Entered: 01/10/2003)
106 ENTERED AGREED ORDER modifying the briefing schedule and granting leave to file briefs in excess of 15 pages. (hmb) (Entered: 01/23/2003)
111 AGREED MOTION by defendants' for extension of time to file reply brief , and for leave to file brief in excess of 15 pages ; Notice. (hmb) (Entered: 01/28/2003)
107 MINUTE ORDER of 1/22/03 by Hon. Joan B. Gottschall : Enter agreed order modifying the briefing schedule and granting leave to file briefs in excess of 15 pages. This order is filed in conjunction with the defendants' motion to modify the briefing schedule and for leave to file briefs in excess of 15 pages [97−1]. Mailed notice (hmb) (Entered: 01/23/2003)
108 RESPONSE by defendants' to Hernandez's Rule 56.1(b)(3)(B) statement [91−1] (hmb) (Entered: 01/24/2003)
109 REPLY brief by defendants' in support of its motion for summary judgment regarding Hernandez [58−1] (hmb) (Entered: 01/24/2003)

Case: 1:01-cv-1731 As of: 10/17/2010 11:47 PM CDT 10 of 14

01/23/2003 01/24/2003
02/13/2003 02/18/2003 02/18/2003 02/18/2003
02/26/2003
02/26/2003 03/31/2003 03/31/2003 03/31/2003
04/08/2003 04/11/2003
04/22/2003 04/24/2003 04/30/2003
05/09/2003

110 APPENDIX by defendants' to their responses to plaintiff Hernandez's statement of additional facts [109−1] (Attachments). (hmb) (Entered: 01/24/2003)
112 MINUTE ORDER of 1/24/03 by Hon. Joan B. Gottschall : Defendants' agreed motion for extension of time to file reply brief [111−1], and for leave to file brief in excess of 15 pages is granted [111−2]. Defendants' are to file their reply brief on their motion for summary judgment by 1/24/03. Mailed notice (hmb) (Entered: 01/28/2003)
SCHEDULE set on 2/13/03 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 6/12/03 . Mailed notice (is) (Entered: 02/13/2003)
113 MOTION by plaintiffs for leave to file their reply to defendants' response to plaintiffs' motion for class certification instanter (Attachments). (vmj) (Entered: 02/27/2003)
114 MOTION by plaintiff for leave to file a brief in excess of 15 pages for their reply to the motion for class certification . (vmj) (Entered: 02/27/2003)
115 NOTICE of motion by plaintiffts regarding motion for leave to file their reply to defendants' response to plaintiffs' motion for class certification instanter [113−1], motion for leave to file a brief in excess of 15 pages for their reply to the motion for class certification [114−1]. (vmj) (Entered: 02/27/2003)
116 MINUTE ORDER of 2/26/03 by Hon. Joan B. Gottschall: Plaintiffs motion for leave to file their reply to defendants' response to plaintiffs' motion for class certification instanter is granted [113−1]. Plaintiffs' motion for leave to file a brief in excess of 15 pages for their reply to the motion for class certification is granted [114−1]. Mailed notice (vmj) (Entered: 02/27/2003)
117 REPLY by plaintiffs' to defendants' response to plaintiffs' motion for class certification (Attachment). (vmj) (Entered: 02/27/2003)
SCHEDULE set on 3/31/03 by Hon. Joan B. Gottschall : Status hearing set to 9:30 4/24/03 . Mailed notice (rj) (Entered: 03/31/2003)
118 MINUTE ORDER of 3/31/03 by Hon. Joan B. Gottschall : Plaintiffs' motion for leave to file their second amended class action complaint is granted in part and denied in part [41−1]. (Entered Order). Mailed notice (ar) (Entered: 03/31/2003)
119 MINUTE ORDER of 3/31/03 by Hon. Joan B. Gottschall : Defendants' motion for summary judgment against plaintiff Anderson Hawkins is granted in part and denied in part [26−1], as is defendants' motion for summary judgment against plaintiff Larry Woodfork [24−1]. Entered Memorandum Opinion and Order. Mailed notice (ar) (Entered: 03/31/2003)
120 MOTION by defendants to withdraw appearance of David E. Metz ; Notice of motion (eav) (Entered: 04/14/2003)
121 MINUTE ORDER of 4/11/03 by Hon. Joan B. Gottschall : Motion by defendants to withdraw appearance of David E. Metz is granted. [120−1] The clerk is directed to send mail for the defendants to John M. Vande Walle another associate of Seyfarth Shaw who has filed an appearance in this action. Mailed notice (eav) (Entered: 04/14/2003)
122 MOTION by plaintiffs' for reassignment of case number 03c2669 as related (Attachments); Notice. (hmb) (Entered: 05/01/2003)
SCHEDULE set on 4/24/03 by Hon. Joan B. Gottschall : Status hearing set for 4/24/03 at 9:30AM is vacated. Motions for summary judgment pending. Telephone notice (rj) (Entered: 04/25/2003)
123 MINUTE ORDER of 4/30/03 by Hon. Joan B. Gottschall : Answer brief to motion for reassignment of case number 03c2669 as related due 5/9/03 [122−1]. Reply to answer brief due 5/23/03. Ruling on motion [122−1] will be by mail. Mailed notice (hmb) (Entered: 05/01/2003)
124 RESPONSE by defendant to plaintiffs' motion for reassignment of Rios case [122−1] (Attachments). (hmb) (Entered: 05/12/2003)

Case: 1:01-cv-1731 As of: 10/17/2010 11:47 PM CDT 11 of 14

05/23/2003 06/06/2003 06/12/2003 07/17/2003 07/23/2003 08/05/2003
08/12/2003 08/28/2003 09/02/2003 09/02/2003 09/02/2003 09/02/2003
09/12/2003 09/12/2003 09/17/2003
10/06/2003

125 REPLY by plaintiffs' to defendants' response to the motion for reassignment of case number 03c2669 as related [122−1] (Attachments). (hmb) (Entered: 05/27/2003)
126 DECLARATION of William Gray; Notice. (hmb) (Entered: 06/09/2003)
SCHEDULE set on 6/12/03 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 8/28/03 . Mailed notice (is) (Entered: 06/12/2003)
127 MOTION by plaintiff to advise the court of fully briefed and pending motions in this case ; Notice. (hmb) (Entered: 07/24/2003)
128 MINUTE ORDER of 7/23/03 by Hon. Joan B. Gottschall : Plaintiffs' motion to advise the court of fully briefed and pending motions in this case is granted [127−1]. Mailed notice (hmb) (Entered: 07/24/2003)
129 MINUTE ORDER of 8/5/03 by Hon. Joan B. Gottschall : It has come to the court's attention that although plaintiffs were granted leave to file their first amended complaint on 8/5/02, and subsequently were granted leave to file their second amended complaint on 3/31/03, plaintiffs never actually filed either the first or second amended complaints. As a result, defendants have never answered either the first or second amended complaints. Filing a proposed complaint attached as an exhibit to a motion for leave to file an amended complaint is not the same as filing the complaint once leave to amend is granted. Indeed, one of the reasons it is necessary to file the complaint after leave is granted is because the court may allow only part of the proposed amendments, as happened with both proposed amended complaints here. Plaintiffs have seven days to file their second amended complaint in accordance with the court's order of 3/31/03. Defendants then have twenty−one days to respond. Mailed notice (eav) (Entered: 08/07/2003)
130 SECOND AMENDED COMPLAINT [1−1] by plaintiff; jury demand; adding plaintiff Enrique Hernandez (Attachments) (rmm) (Entered: 08/13/2003)
SCHEDULE set on 8/28/03 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 10/23/03 . Mailed notice (is) (Entered: 08/28/2003)
131 ANSWER by defendants and affirmative defenses to plaintiffs' second amended class action complaint [130−1]. (yp) (Entered: 09/03/2003)
132 MINUTE ORDER of 9/2/03 by Hon. Joan B. Gottschall : Plaintiff's motion for reassignment of case number 03cv2669 as related is denied [122−1]. (Entered Order). Mailed notice (aga) (Entered: 09/04/2003)
133 MINUTE ORDER of 9/2/03 by Hon. Joan B. Gottschall : Plaintiffs' motion for class certification is denied [44−1]. (Entered Order). Mailed notice (aga) (Entered: 09/04/2003)
134 MINUTE ORDER of 9/2/03 by Hon. Joan B. Gottschall : Defendants' motion for summary judgment against plaintiff Enrique Hernandez [58−1] is granted, as is defendants' motion for summary judgment against plaintiff Javier Guerrero [55−1]. Entered Memorandum Opinion and Order. Mailed notice (yp) (Entered: 09/05/2003)
135 RENEWED MOTION by plaintiffs Anderson Hawkins, Lawrence Woodfork for class certification pursuant to Rule 23(A) and (B)(3) ; Memorandum in support; Notice. (aga) Modified on 09/18/2003 (Entered: 09/18/2003)
136 EXHIBITS by plaintiffs Anderson Hawkins, Lawrence Woodfork in support of their renewed motion for class certification pursuant to Rule 23(A) and (B)(3) [135−1]. (aga) (Entered: 09/18/2003)
137 MINUTE ORDER of 9/17/03 by Hon. Joan B. Gottschall : Answer brief to plaintiff's motion for class certification pursuant to Rule 23(A) and (B)(3) [135−1] due 10/8/03. Reply to answer brief due 10/22/03. Ruling on plaintiff's renewed motion for class certification pursuant to Rule 23 (A) and (B)(3) will be by mail. Mailed notice (aga) (Entered: 09/18/2003)
138 AGREED MOTION by defendants to extend briefing schedule on renewed motion for class certification ; Notice of motion (eav) (Entered: 10/16/2003)

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10/10/2003
10/22/2003 10/22/2003 10/29/2003
10/29/2003 10/29/2003 10/30/2003 11/05/2003 11/05/2003 11/05/2003 11/12/2003
11/14/2003 11/18/2003
12/15/2003 12/23/2003 01/30/2004 03/18/2004 04/05/2004

139 MINUTE ORDER of 10/10/03 by Hon. Joan B. Gottschall : Agreed motion by defendants to extend briefing schedule on renewed motion for class certification is granted. [138−1] Defendants to file response to plaintiffs' renewed motion for class certification by 10/22/03. [135−1] Plaintiffs to file reply by 11/5/03. Ruling by mail. Mailed notice (eav) (Entered: 10/16/2003)
140 AGREED MOTION by defendants to exceed fifteen page limitation ; Notice. (aga) (Entered: 10/29/2003)
143 APPENDIX OF EXHIBITS by defendants in support of defendants' brief in opposition to plaintiffs' renewed motion for class certification. (aga) (Entered: 10/29/2003)
141 MINUTE ORDER of 10/29/03 by Hon. Joan B. Gottschall : Agreed motion by defendants to exceed fifteen page limit for their response to plaintiff's renewed motion for class certification is granted [140−1]. Mailed notice (aga) (Entered: 10/29/2003)
142 RESPONSE by defendant to plaintifs' motion for class certification pursuant to Rule 23(A) and (B)(3) [135−1]. (aga) (Entered: 10/29/2003)
149 MOTION by plaintiffs for leave to take the deposition of Jose Romo, EEOC Investigator (Attachment); Notice. (aga) (Entered: 11/19/2003)
SCHEDULE set on 10/30/03 by Hon. Martin C. Ashman : Status hearing reset to 10:00 12/15/03 . Mailed notice (is) (Entered: 10/30/2003)
144 UNOPPOSED MOTION by plaintiff for leave to file a brief in excess of 15 pages for their reply to defendants' response plaintiffs' renewed motion for class certification ; Notice. (aga) (Entered: 11/14/2003)
145 REPLY by plaintiffs to defendants response [142−1] to plaintiffs' renewed motion for class certification. (aga) (Entered: 11/14/2003)
146 EXHIBITS by plaintiff in support of their reply [145−1] to defendants' response to plaintiffs' renewed motion for class certification. (aga) (Entered: 11/14/2003)
147 MINUTE ORDER of 11/12/03 by Hon. Joan B. Gottschall : Plaintiff's unopposed motion for leave to file a brief in excess of 15 pages for their reply to defendants' response plaintiffs' renewed motion for class certification is granted [144−1]. Telephoned notice (aga) (Entered: 11/14/2003)
148 OPPOSITION by defendants Groot Ind Inc, Groot Recycling to plaintiffs' motion for leave to take deposition of EEOC investigator (Attachments). (aga) (Entered: 11/17/2003)
150 MINUTE ORDER of 11/18/03 by Hon. Martin C. Ashman : Oral argument held on plaintiffs' motion for leave to take the deposition of Jose Romo, EEOC Investigator. The motion is withdrawn [149−1] given that they have waived the right to challenge the foundation and authenticity of those documents as stated in open court. Mailed notice (aga) (Entered: 11/19/2003)
SCHEDULE set on 12/15/03 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 1/30/04 . Mailed notice (is) (Entered: 12/15/2003)
151 SUPPLEMENTAL authority by defendant in opposition to plaintiffs' renewed motion for class certification (Attachments). (aga) (Entered: 12/23/2003)
SCHEDULE set on 1/30/04 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 3/18/04 . Mailed notice (is) (Entered: 01/30/2004)
SCHEDULE set on 3/18/04 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 4/23/04 . Mailed notice (is) (Entered: 03/18/2004)
SCHEDULE set on 4/5/04 by Hon. Martin C. Ashman : Status hearing of 4/23/04 is stricken. Settlement conference set for 2:00 4/23/04 in chambers 1366. All clients and parties with full authority to settle are to be physically present. Failure to have parties with full authority to settle present may result in the imposition of severe sanctions. (For further details see attached standing order). Mailed notice (is) (Entered: 04/05/2004)

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04/08/2004 04/15/2004 04/15/2004 04/23/2004 04/29/2004 05/07/2004 05/19/2004
06/04/2004
06/08/2004 06/22/2004 07/07/2004 08/20/2004 08/23/2004
08/23/2004 09/29/2004
09/29/2004

152 MOTION by plaintiff for leave to file an additional appearance of Justin G. Randolph ; Notice. (jmp) (Entered: 04/19/2004)
153 ATTORNEY APPEARANCE for plaintiffs by Justin Giles Randolph. (jmp) (Entered: 04/19/2004)
154 MINUTE ORDER of 4/15/04 by Hon. Joan B. Gottschall : Plaintiffs' motion for leave to [152−1] file an additional appearance of Justin G. Randolph is granted [152−2]. Mailed notice (jmp) (Entered: 04/19/2004)
SCHEDULE set on 4/23/04 by Hon. Martin C. Ashman : Settlement conference held. Status hearing set to 10:00 4/29/04 . Mailed notice (is) (Entered: 04/26/2004)
SCHEDULE set on 4/29/04 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 5/7/04 . Mailed notice (is) (Entered: 04/29/2004)
SCHEDULE set on 5/7/04 by Hon. Martin C. Ashman : Status hearing held and continued to 10:15 5/19/04 . Mailed notice (is) (Entered: 05/07/2004)
SCHEDULE set on 5/19/04 by Hon. Martin C. Ashman : Status hearing held. Settlement conference set for 2:00 6/4/04 in chambers 1366. All clients and parties with full authority to settle are to be physically present. Failure to have parties with full authority to settle present may result in the imposition of severe sanctions. (For further details see attached standing order). Mailed notice (is) (Entered: 05/19/2004)
155 MINUTE ORDER of 6/4/04 by Hon. Martin C. Ashman: Settlement conference held − unsuccessful. All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Terminating the case referral to Hon. Martin C. Ashman regarding [135−1]. No notice (jmm) (Entered: 06/07/2004)
SCHEDULE set on 6/8/04 by Hon. Joan B. Gottschall : Status hearing set to 9:30 7/7/04 . Mailed notice (rj) (Entered: 06/08/2004)
156 SUPPLEMENTAL RESPONSE by defendant Groot in opposition to class certification [139−1]. (jmm) (Entered: 06/28/2004)
SCHEDULE set on 7/7/04 by Hon. Joan B. Gottschall : Status hearing held. Mailed notice (yp) (Entered: 07/07/2004)
157 AGREED MOTION by plaintiffs and defendant to stay the case for forty−five (45) days ; Notice. (jmm) (Entered: 08/24/2004)
158 MINUTE ORDER of 8/23/04 by Hon. Joan B. Gottschall : Status hearing is set to 10/20/04 at 9:30 a.m. Parties' agreed motion to stay the case for forty−five (45) days to completed settlement negotiations is granted [157−1]. No appearance is required on 9/9/04. Enter order. Mailed notice(jmm) Modified on 08/24/2004 (Entered: 08/24/2004)
163 MINUTE entry before Judge Joan B. Gottschall : Motion 157 , Motion to dismiss 162 are administratively terminated: No notice (rj, ) (Entered: 03/19/2005)
159 MINUTE ORDER of 9/29/04 by Hon. Arlander Keys: Settlement conference held. The parties agreed to a tentative settlement on an individual basis, including several plaintiffs. Additional time is needed for the parties to complete the settlement documents. Pursuant to the settlement agreement, plaintiff's counsel made an oral motion to dismiss the case with leave to reinstate within 60 days (11/28/04) in the event the settlement agreement is not effectuated. This court recommends that the district judge approve the oral motion to dismiss with leave to reinstate within 60 days. Mailed notice (jmm) (Entered: 09/30/2004)
160 MINUTE ORDER of 9/29/04 by Hon. Joan B. Gottschall: Enter order. Pursuant to plaintiffs' motion, and the recommendation of Magistrate Judge Keyes, this case is dismissed with leave to reinstate within 60 days (11/28/04) in the event a settlement agreement is not effectuated. All pending motions, including plaintiffs' motion for class certification [135−1], are denied without prejudice to re−file in the event this case is reinstated. Terminating case. Mailed notice (jmm) (Entered: 09/30/2004)

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10/12/2004 12/06/2004

161 MINUTE ORDER of 10/12/04 by Hon. Joan B. Gottschall: Pursuant to Magistrate Judge Key's recommendation in order of 9/29/04, this matter is dismissed with leave to reinstate on or before 11/29/04. Upon failure to file a timely motion to reisntate, the dismissal with prejudice will become final in all events on 11/30/04. Case terminated. Mailed notice (jmm) (Entered: 10/14/2004)
162 MOTION by plaintiffs for voluntary dismissal ; Notice. (jmm) (Entered: 12/07/2004)