IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

BEUGRE S. NEHAN, ) 

 ) 

Plaintiff, ) 

 ) No. 12-cv-05274 

v. ) 

 ) Judge Andrea R. Wood 

LOCAL UNION NO. 1- BAKERY, ) 

CONFECTIONERY, TOBACCO ) 

WORKERS AND GRAIN MILLERS ) 

INTERNATIONAL UNION, ) 

AFL-CIO-CLC and ROGER JONES, ) 

 ) 

Defendants. ) 

MEMORANDUM OPINION AND ORDER

 Plaintiff Beugre Nehan worked in the shipping and receiving department of Tootsie Roll 

Industries (“Tootsie Roll”). When a supervisor ordered him to relinquish to another employee a 

forklift he had been using, thereby relegating him to use of equipment that he thought put more 

strain on his previously injured back, Nehan asked his union steward, Roger Jones, to file a 

grievance under the collective bargaining agreement. Jones did not file a grievance, however, 

and Nehan alleges that this inaction was due to discriminatory animus against Nehan based on 

his race, national origin, and disability. Now before the Court are cross-motions for summary 

judgment on Nehan’s discrimination claims against Jones and Local Union No. 1 - Bakery, 

Confectionary, Tobacco Workers and Grain Millers International Union, AFL-CIO-CLC 

(“Union,” and together with Jones, “Defendants”). For the reasons detailed below, Defendants’ 

summary judgment motion (Dkt. No. 129) is denied as to Nehan’s claim for national origin 

discrimination but otherwise granted, and Nehan’s summary judgment motion (Dkt. No. 128) is 

denied. 
2 

BACKGROUND 

 At the time of the incidents at issue, Nehan was employed by Tootsie Roll as a “Hi-Lo 

Operator” in the company’s shipping and receiving department. (Defs.’ Resp. to Pl.’s Stmt. of 

Undisputed Facts (“D. Resp.”) ¶ 8, Dkt. No. 181.) Nehan is black and a native of the Republic of 

Côte d’Ivoire in West Africa. (Id. ¶ 6.) He was a member of the Union and Jones was his union 

steward. (Id. ¶¶ 7-10.) The collective bargaining agreement between the Union and Tootsie Roll 

(“CBA”) prohibited discrimination on the basis of race or national origin and required 

compliance with the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112, with respect 

to accommodations for disabled employees. (Ex. 6 to Pl.’s Stmt. of Undisputed Facts, Dkt. No. 

145.) 

 Nehan had back surgery in 2003 and then suffered a work-related injury in 2009 that 

required him to take a leave of absence. (D. Resp. ¶ 19, Dkt. No. 181.) He returned to work in 

October 2009 after a doctor granted him a release for full duty. (Id. ¶ 21.) When a Tootsie Roll 

employee’s medical condition required restriction of his physical activity, company policy did 

not permit him to work in the shipping and receiving department and instead required that he be 

transferred to a restricted duty department. (Pl.’s Resp. to Defs.’ Stmt. of Undisputed Facts (“P. 

Resp.”) ¶ 22, Dkt. No. 207.) 

 On June 4, 2010, Nehan was working an overtime shift and using a forklift when the shift 

supervisor, John Grosse, told Nehan that he wanted him to give up the forklift for another 

employee who was coming in to work 45 minutes later. (D. Resp. ¶¶ 17, 39, Dkt. No. 181.) 

Shortly thereafter, Grosse returned to Nehan along with Ed Weber, who was the shipping and 

receiving department manager and Grosse’s superior. (Id. ¶¶ 11, 12, 40.) Weber told Nehan, 

“we’re going to need your forklift.” (Id. ¶ 40.) Weber also told Nehan that when Grosse assigned 
3 

him to work in an area known as the “picking area,” he was not to use a forklift. (Id.) Nehan told 

Weber that he needed the forklift for his medical restrictions. (Id.) Nehan’s inability to use a 

forklift left him to use another piece of equipment known as a “walkie,” which required him to 

stand rather than sit. (Id. ¶ 36.) Nehan believed that the “walkie” stressed his back more than the 

forklift because operating it required more bending. (Id.) Nehan saw Jones in the area, told him 

that Grosse and Weber were taking his forklift away from him to give to another employee, and 

asked him to file a grievance on his behalf. (Id. ¶ 41.) Another employee later approached Nehan 

and told him that Grosse wanted him to take Nehan’s forklift; Nehan relinquished it. (Id. ¶ 42.) 

Jones did not file a grievance for the incident. (Id. ¶ 43.) 

 In the present action, Nehan asserts claims against Jones and the Union for failing to 

pursue a grievance for the forklift incident for discriminatory reasons. Count I of his complaint 

seeks relief from the Union under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e2(c)(1), for discrimination on the basis of his national origin. Counts II and III allege that the 

Union and Jones violated 42 U.S.C. § 1981 by refusing to file a grievance against Tootsie Roll 

because of his race or, alternatively, because of their disinclination to file grievances for racial 

discrimination or to antagonize the company. And finally, Count IV asserts a claim against the 

Union under the ADA for refusing to file a grievance due to its discriminatory animus toward the 

need to accommodate his disability and reluctance to advocate for such accommodations. Jones 

and the Union seek summary judgment in their favor; Nehan has also filed a motion for summary 

judgment on all of his claims.1

 

1

 Nehan concedes “that there may be problems with plaintiff meeting his burden of proof to establish a prima facie 

case of disability” and therefore he apparently has abandoned that aspect of his claim. (Pl.’s Reply in Supp. of 

Summ. J. at 5, Dkt. No. 197.) 
4 

DISCUSSION 

 Summary judgment is appropriate when there are no genuine issues of material fact and 

the moving party is entitled to judgment as a matter of law. Gross v. PPG Indus., Inc., 636 F.3d 

884, 888 (7th Cir. 2011). In deciding a summary judgment motion, the Court construes all 

inferences in favor of the nonmoving party. Sellers v. Zurich Am. Ins. Co., 627 F.3d 627, 631 

(7th Cir. 2010). 

 Defendants contend that as a prerequisite to his Title VII claim against the Union, Nehan 

must show that Tootsie Roll violated the CBA and that the Union breached its duty of fair 

representation by letting the breach go unrepaired. Their basis for this contention is the Seventh 

Circuit’s recitation of these elements in Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853, 

866 (7th Cir. 1997). But the Seventh Circuit has since abandoned the view that to prevail on a 

Title VII claim against a labor organization a plaintiff must prove a breach of the collective 

bargaining agreement or the union’s duty of fair representation. In Green v. American 

Federation of Teachers/Illinois Federation of Teachers Local 604, 740 F.3d 1104, (7th Cir. 

2014), the court held that a Title VII claim against a labor organization does not depend on a 

showing that either the employer or the union violated any state statute or contract and that no 

such element should be considered part of a plaintiff’s prima facie case. Id. at 1107. Instead, a 

union violates Title VII when it refuses to process a plaintiff’s grievance because of his race or 

earlier complaints about race. Id. The Green court characterized contrary language in Greenslade

as dicta. Id.

 Defendants argue that Greenslade’s validity is unaffected by Green because the latter 

opinion did not incorporate language indicating the panel’s compliance with Seventh Circuit 

Rule 40(e). That rule requires any panel opinion that that would overrule a prior decision of that 
5 

court to be circulated to the full court prior to issuance. Defendants contend that the panel in 

Green did not follow the procedure established by Rule 40(e) and thus its decision cannot limit 

Greenslade. Such arguments are properly addressed to the Court of Appeals, however, and are 

unpersuasive here. See Levin v. Madigan, 41 F. Supp. 3d 701, 704 (N.D. Ill. 2014). As Green

directs, Nehan’s Title VII claims against the Union will be examined in accordance with the 

standards applicable to non-union defendants. 

 In the summary judgment context, these standards are well-established. A Title VII 

plaintiff may survive summary judgment by presenting proof of discrimination using either the 

direct or indirect method. Hutt v. AbbVie Products LLC, 757 F.3d 687, 691 (7th Cir. 2014). 

Discrimination claims under 42 U.S.C. § 1981 are analyzed under the same framework. 

Humphries v. CBOCS W., Inc., 474 F.3d 387, 403-04 (7th Cir. 2007). 

 The direct method of proof includes both evidence explicitly linking an adverse 

employment decision to a discriminatory motive and circumstantial evidence strong enough to 

raise an inference of such a motive. Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013). 

Nehan points to statements by Jones that he claims constitutes direct evidence of discrimination 

on the basis of his national origin. He alleges that sometime in February 2010, following a 

discussion of other grievances, Jones told him, “You African, you guys think you are better more 

than us.” (Ex. 1 to Pl.’s Stmt. of Undisputed Facts at 213, Dkt. No. 141.)2

 According to Nehan, 

in the course of the same conversation, Jones also said to him, “Nehan, I don’t want you to count 

on me filing a grieving [sic] for you.” (Id. at 214.) 

 

2 At his deposition, Nehan testified that this conversation occurred in May 2010, but he later executed an 

errata sheet that corrected his testimony and identified February 2010 as the date. This correction has 

been confirmed by his subsequent pleadings. (Pl.’s Resp. to Defs.’ Stmt. of Additional Material Facts 

¶ 32, Dkt. No. 199.) 
6 

 Remarks suggesting a decision maker’s propensity to take negative action against a 

plaintiff for a prohibited reason may suffice as direct evidence of discrimination “even if the 

evidence stops short of a virtual admission of illegality.” Venters v. City of Delphi, 123 F.3d 956, 

973 (7th Cir.1997). Although evidence of discriminatory motive must have some relationship 

with the decision at issue, the connection need not be as explicit as, for example, a statements by 

the decision maker that, “I won’t hire you because you’re a woman.” Id. at 972-73. The remarks 

attributed to Jones suffice. Although his alleged comments did not explicitly link an antagonism 

towards Africans to his refusal to file a grievance on Nehan’s behalf, the proximity of the 

comments directly supports an inference that the two were related. Defendants argue that the 

February 2010 date of Jones’s alleged comments make them too remote in time from Jones’s 

failure to file a grievance to permit an inference that the two events were related. But timing 

alone cannot be considered a decisive factor in determining whether comments constitute direct 

evidence of discrimination. Hasan v. Foley & Lardner LLP, 552 F.3d 520, 528 (7th Cir. 2008). 

 Citing Crider v. Spectrulite Consortium, Inc., 130 F.3d 1238 (7th Cir. 1997) and Souter v. 

International Union, UAW, 993 F.2d 595 (7th Cir.1993), Defendants also contend that the 

Union’s pursuit of other grievances on Nehan’s behalf demonstrates his lack of discriminatory 

animus against him. That may be the case. However, the resolution of the competing inferences 

raised by Jones’ comments and the Union’s actions on other grievances is a matter for the jury to 

decide, not for the Court to determine on summary judgment. Venters, 123 F.3d at 973. 

 Defendants’ motion is accordingly denied as to Count I of Nehan’s complaint, which 

asserts a Title VII claim against the Union for discrimination on the basis of his national origin. 

Nehan argues that not only should summary judgment be denied to the Union on this count but 

that it should be granted in his favor. For purposes of his own summary judgment motion, 
7 

however, Nehan is not entitled to have inferences drawn in his favor; rather, any inferences must 

be drawn in the Union’s favor. There are competing inferences present here that cannot be 

resolved in favor of any party at this stage. 

 While the alleged statements by Jones support an inference of discrimination against 

Nehan due to his national origin, Nehan cites no comparable direct evidence in support of his 

claims of racial discrimination. Although Nehan does not explicitly label them as such, his 

arguments in support of his race discrimination claims are, in part, fairly construed as relying on 

circumstantial evidence. Nehan correctly asserts that Title VII and § 1981 are violated if a union 

fails to pursue a member’s claims of race discrimination because of an aversion to supporting 

such claims, even if the union and its representatives have no discriminatory animus themselves. 

See Milam v. Dominick's, No. 03 C 9343, 2007 WL 6969746, at *3 (N.D. Ill. Apr. 16, 2007) 

(citing Goodman v. Lukens Steel Co.,482 U.S. 656, 669 (1987); Allensworth v. General Motors 

Corp., 945 F.2d 174, 179 (7th Cir. 1991)). 

 Before the incident at issue here, the Union filed several grievances on Nehan’s behalf. 

Nehan argues that the Union “had a pattern of not asserting race (or even discrimination)” when 

it filed grievances for him, “even when [the Union] was well aware of Nehan’s complaints of 

racial discrimination.” (Pl.’s Mem. in Supp. of Summ. J. at 20-21, Dkt. No. 138.) In support of 

this argument, Nehan cites several grievance forms: No. 8493, dated December 3, 2009 (Dkt. 

No. 146); No. 8553, dated February 25, 2010 (Dkt. No. 147); No. 8554, dated February 28, 2010 

(Dkt. No. 148); No. 8565, dated March 26, 2010 (Dkt. No. 149); and No. 8605, dated May 21, 

2010 (Dkt. No. 149-1). Nehan contends that the grievance forms themselves indicate the Union’s 

reluctance to pursue racial discrimination claims in that they avoid references to race. 
8 

 One of the grievance forms, No. 8553, explicitly contradicts Nehan’s contention, 

however. That document alleges that Tootsie Roll violated the CBA by allowing Nehan’s 

supervisor to discriminate by continually forcing “African American” workers to perform a 

specific unloading task while “Latino American” and “Polish American” workers did not have to 

perform that duty. Two other grievance forms filed on Nehan’s behalf, Nos. 8554 and 8565, 

charged the company with violations of the CBA, including violations of “Article 25.” As noted 

above, Article 25 of the CBA provides that neither the company nor the Union would 

discriminate against any individual because of his or her race, color, age, religion, sex, national 

origin, creed, ancestry, disability, or any other legally protected status. 

 Of the five grievance forms identified by Nehan as evidence of the Union’s purported 

reluctance to pursue race discrimination claims, one explicitly identifies a complaint that Nehan 

was an African-American worker disadvantaged in comparison to Latino and Polish workers, 

while two others charged that the company was violating the CBA’s antidiscrimination 

provision, which included a prohibition of racial discrimination. This evidence is insufficient to 

raise an inference of the Union’s reluctance to pursue discrimination claims. In addition, Nehan 

has presented no evidence that the description of an employee’s complaint on the Union’s 

grievance form limited its pursuit of specific claims, or that he and the Union were precluded 

from detailing his claims of race discrimination as the investigation of the grievance progressed. 

 Nehan also argues that the Union’s reluctance to pursue race discrimination claims is 

demonstrated by evidence that the department manager, Ed Weber, disapproved of Union action 

in his favor. He cites a “Grievance Investigation Form” dated May 27, 2010, on which Weber 

reacted to grievance No. 8605 arising from Nehan’s suspension for refusing to lift a propane tank 

that he considered to be too heavy. (Dkt. Nos. 149-1, 149-2.) In a handwritten notation of events 
9 

related to the grievance, Weber indicated that he had spoken to Jones about the incident. (Dkt. 

No. 149-2.) He wrote: “Told Roger that he has no restrictions and all drivers would have taken 

the tank out without an issue. I asked Roger to talk to [Union president] Donald Woods about 

Beugre. I feel that the union is creating a monster by backing this man. Roger said he will talk to 

Don Woods.” (Id.) 

 Weber’s comment does not suggest that he disapproved of Nehan or his grievance 

because of his race; it instead indicates that Weber rejected Nehan’s claim that a problem with 

his back was a legitimate reason for his refusal to perform an assigned task. Weber’s notes do not 

indicate that he expressed to Jones any disapproval for Union support for race discrimination 

claims. Nor do the notes or any other evidence presented by Nehan suggest that the Union 

interpreted Weber’s comments in that way or that Weber’s remarks chilled the Union’s support 

for Nehan’s grievances. Indeed, the Union subsequently filed a later grievance on Nehan’s 

behalf. (No. 8656, August 5, 2010, Dkt. No. 130-6 at 22 of 73.) 

 The record thus fails to show any reluctance by Defendants to pursue race-based 

grievances. Nehan’s Title VII and § 1981 race discrimination claims for refusal to bring racial 

grievances are not supported by sufficient circumstantial evidence under the direct method to 

survive Defendants’ summary judgment motion. 

 Nehan may nonetheless save these claims by presenting evidence under the indirect 

method of proof detailed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). In 

the employment context, the indirect method’s framework requires the employee to establish a 

prima facie case of discrimination by demonstrating that (1) he is a member of a protected class; 

(2) he met his employer’s legitimate job expectations; (3) he suffered an adverse employment 

action; and (4) similarly situated employees outside of the protected class received more 
10 

favorable treatment. Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012). If the 

plaintiff establishes a prima facie case, the employer then bears the burden of offering a nondiscriminatory reason for the adverse action, and if the employer makes that showing, the burden 

shifts back to the employee to present evidence demonstrating that the employer’s stated reason 

is a pretext. Id. 

 Courts in this Circuit routinely cite the McDonnell Douglas framework in analyzing 

summary judgment motions in actions against labor organizations. See Cox v. Bhd. of 

Locomotive Eng’rs & Trainmen, 579 F. App’x 505, 508 (7th Cir. 2014). But in such actions, that 

framework has been applied without reference to the McDonnell Douglas “meeting employer’s 

expectations” element of a prima facie case, and in cases where the plaintiff’s protected class and 

the defendant’s adverse action were not disputed, courts have proceeded directly to the “similarly 

situated” analysis. See Humphrey v. United Ass'n of Plumbers & Pipefitters Union, Local 101, 

No. 11-CV-716-JPG-SCW, 2012 WL 6209308, at *4 (S.D. Ill. Dec. 13, 2012). 

 To be similarly situated for purposes of a plaintiff’s attempt to establish a prima facie 

case of discrimination, comparators must be directly comparable in all material respects. 

Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 365–66 (7th Cir.2009). That inquiry is usually 

a question for the factfinder, but summary judgment may be appropriate when no reasonable 

factfinder could find that the plaintiff has met his burden on the issue. Srail v. Vill. of Lisle, 588 

F.3d 940, 945 (7th Cir. 2009). In the usual case, the plaintiff and his comparators must have been 

subject to the same decision maker and engaged in similar conduct without differentiating 

circumstances that would distinguish their conduct or the decision maker’s treatment of them. 

Coleman v. Donahoe, 667 F.3d 835, 847 (7th Cir. 2012). 
11 

 Nehan offers as comparators two individuals, George Williams and Theresa Sanchez. He 

alleges that Williams and Sanchez were employees of Tootsie Roll and members of his same 

bargaining unit. (P. Resp. ¶ 76, Dkt. No. 207.) He argues that Williams is non-African and 

therefore outside of his national origin class, and that Sanchez is non-African and non-black, and 

therefore outside his national origin and race classes. (Id.) Nehan asserts that Williams and 

Sanchez are similarly situated to him because they were subject to the same terms and conditions 

of employment, and yet he was treated differently from each of them in that they each asserted 

complaints about their work conditions that the Union decided to pursue through the grievance 

process. (Id.) 

 But Nehan does not claim that the decisions to pursue grievances on behalf of Williams 

and Sanchez were made by Jones, the union steward who he identifies as responsible for the 

inaction with regard to his own case. Indeed, Williams’s and Sanchez’s grievance forms both 

suggest that different union stewards initiated their grievances—the Williams grievance form 

indicates that it was submitted by Donald Woods “for Theresa Sanchez, Shop Steward.” (Dkt. 

No. 151-1 at 2.) The Sanchez grievance form indicates that it was submitted by Donald Woods 

for “James Sterling, Steward.” (Dkt. No. 151-2 at 2.) Nehan’s failure to offer any evidence that 

his comparators were subjected to action (or inaction) by Jones, the decision maker allegedly 

responsible for the inaction of which he complains, defeats the claim that they are similarly 

situated to him and accordingly defeats his attempt to establish a prima facie case of 

discrimination through the indirect proof method. 

 Even if Nehan had established the necessary prima facie case, Defendants have presented 

evidence that would meet their burden of explaining their inaction. Jones testified at his 

deposition that he did not file a grievance on Nehan’s behalf because he did not believe the CBA 
12 

had been violated. (Ex. 3 to D. Resp. at 133, Dkt. No. 185.) He believed that Nehan’s supervisors 

had the right to assign tasks and equipment as they saw fit, and he did not believe that Nehan was 

entitled to override his supervisors’ directives for medical reasons because his presence in the 

shipping and receiving department indicated that he was working without medical restrictions. 

(Id. at 134-36.) 

 Citing the Seventh Circuit’s aforementioned opinion in Green v. American Federation of 

Teachers, Nehan argues that just as a CBA violation is not a prerequisite for a discrimination 

claim against a union, Jones’s belief that there was no violation cannot shield Defendants from 

liability. But if Defendants offer a non-discriminatory reason for declining to pursue a grievance 

on Nehan’s behalf and their showing stands unrebutted, they are entitled to summary judgment 

on claims for which Nehan relies upon the indirect method of proof. Stone v. City of Indianapolis 

Pub. Utilities Div., 281 F.3d 640, 644 (7th Cir. 2002). The plaintiff’s rebuttal must show that the 

defendant’s stated reasons were insincere, not merely that they were baseless. Harper v. Fulton 

Cnty., Ill., 748 F.3d 761, 768 (7th Cir. 2014). Here, Defendants assert that Jones did not file a 

grievance for violation of the CBA because he did not believe that the actions of which Nehan 

complained constituted a violation. Nehan offers no evidence to rebut this assertion. This failure 

would defeat his race discrimination claims even if he had established a prima facie case under 

the McDonnell Douglas burden shifting approach. 
13 

CONCLUSION 

 As discussed above, Nehan has presented sufficient direct evidence of discrimination 

based on his national origin to survive a summary judgment motion on that claim but not to 

prevail on one of his own. Thus, both Defendants’ and Nehan’s motions for summary judgment 

on Count I of the Second Amended Complaint are denied. However, as Nehan has failed to 

establish a prima facie case of discrimination on the basis of either his race or his disability, 

Defendants’ motion for summary judgment is granted as to Counts II, III, and IV, and Nehan’s 

cross-motion on those counts must be denied. 

ENTERED: 

Dated: September 29, 2015 __________________________ 

 Andrea R. Wood 

 United States District Judge