UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

JOSE REYES, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:15-cv-00086-SLC

)

OUTDOOR DETAIL, INC., )

)

Defendant. )

OPINION AND ORDER

Plaintiff Jose Reyes filed this case against his former employer, Defendant Outdoor

Detail, Inc. (“Outdoor Detail”), in Allen Superior Court on March 2, 2015, advancing a claim of

national origin discrimination under 42 U.S.C. § 1981 and a state-law retaliation claim for

asserting his rights under the Indiana Worker’s Compensation Act, that is, a Frampton claim.1

Outdoor Detail removed the case here under 28 U.S.C. § 1331 on the basis of Reyes’s § 1981

claim.2

Now before the Court is Outdoor Detail’s motion for summary judgment (DE 16),

together with a supporting memorandum (DE 17), filed on April 19, 2016, asserting that Outdoor

Detail is entitled to judgment as a matter of law on both of Reyes’s claims. Reyes filed a

response in opposition to the motion (DE 20) on June 3, 2016, together with his affidavit in

1 In Frampton v. Central Indiana Gas Co., the Indiana Supreme Court articulated a public policy exception

to the employment at-will doctrine by holding that an employee terminated for filing a claim under the Indiana

Worker’s Compensation Act could sue his employer for unlawful retaliation. 297 N.E.2d 425, 428 (1973). 

2 Subject matter jurisdiction under 28 U.S.C. § 1331 is proper in this Court. Jurisdiction of the undersigned

Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting. (DE 7).
support (DE 20-1). Outdoor Detail timely filed a reply brief (DE 25), together with

supplemental evidence (DE 26), and Reyes later submitted supplemental case law to the Court

(DE 28; DE 29).3 The motion for summary judgment is ripe for ruling. 

 For the following reasons, the Court will GRANT Outdoor Motion’s motion for summary

judgment as to Reyes’s § 1981 discrimination claim. The Court will decline to exercise

supplemental jurisdiction over Reyes’s Frampton claim and will remand the case to state court. 

I. FACTUAL AND PROCEDURAL BACKGROUND 4

Reyes, who is Hispanic and has brown skin, filed this case against Outdoor Detail in

Allen Superior Court on March 2, 2015, alleging that Outdoor Detail discriminated against him

on the basis of his national origin in violation of § 1981, and that Outdoor Detail retaliated

against him for asserting his rights to worker’s compensation benefits in violation of Indiana

law.5 (DE 2). On April 14, 2015, Outdoor Detail removed the case here on the grounds that

Reyes’s § 1981 discrimination claim created federal-question jurisdiction under 28 U.S.C. §

1331. (DE 1). 

3 Outdoor Detail also filed a motion to strike (DE 23) certain portions of Reyes’s affidavit, together with a

supporting memorandum (DE 24), and Reyes timely responded (DE 27). Because summary judgment should be

granted in Outdoor Detail’s favor on Reyes’s § 1981 discrimination claim even when Reyes’s affidavit is considered

in its entirety, and because the Court is declining to exercise supplemental jurisdiction over Reyes’s Frampton claim,

the motion to strike will be DENIED AS MOOT.

4 For summary judgment purposes, the facts are recited in the light most favorable to Reyes, the nonmoving

party. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). 

5 Although Reyes in one sentence of his complaint briefly references a retaliation claim under § 1981 (DE 2

at 4 ¶ 10), that reference appears to be a scrivener’s error, as the body of his complaint advances only a

discrimination claim under § 1981 and a Frampton claim under state law. Nor do the parties mention a § 1981

retaliation claim in their briefs. (See DE 17; DE 20; DE 25). In any event, there is no evidence that Reyes ever

complained about discrimination to Outdoor Detail, and thus, any § 1981 claim based on retaliation would fail at the

outset. See Carter v. Chi. State Univ., 778 F.3d 651, 657 (7th Cir. 2015) (explaining that one of the elements of a 

§ 1981 retaliation claim is showing that the plaintiff engaged in protected activity (citation omitted)). 

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A. Timeline of Relevant Events 

Reyes worked for Outdoor Detail on a seasonal basis for several months in each 2011,

2012, and 2013. (DE 16-1 at 1-2 ¶¶ 5, 8-12, 15; DE 20-1 at 1 ¶ 2; DE 26). His job duties

included installing sprinklers, fitting pipes, general labor, driving, and performing some

demolition. (DE 20-1 at 1 ¶ 3). 

 Reyes was first hired by Outdoor Detail on April 11, 2011. (DE 16-1 at 1 ¶ 5). Within a

few months, Reyes was reprimanded after being caught smoking on a hospital work site that had

a no-smoking policy on its grounds. (DE 16-1 at 1 ¶ 7). Once reprimanded, Reyes walked onehalf mile off the property to smoke on a public road. (DE 16-1 at 1 ¶ 7). Outdoor Detail

terminated Reyes’s employment when he returned to work on July 5, 2011, for walking off the

job site. (DE 16-1 at 1 ¶ 7). 

In September 2012, Reyes begged the owner of Outdoor Detail, Kevin Mullendore, to

give him another chance and rehire him. (DE 16-1 at 1 ¶ 8). Mullendore decided to do so and

rehired Reyes. (DE 16-1 at 1 ¶ 8). In December 2012, as work began to slow down for the

season, Reyes notified Outdoor Detail that he had other work to do, and he stopped showing up

for work. (DE 16-1 at 1 ¶ 9). 

On March 12, 2013, Reyes returned to work at Outdoor Detail for the season. (DE 16-1

at 1 ¶ 10). On April 10, 2013, Reyes fell on the job, injuring his back, shoulder, and other parts

of his body. (DE 20-1 at 2 ¶ 7). “Shortly after” being injured, Reyes reported the injury to

Outdoor Detail (he does not say to whom specifically) and asked to use his worker’s

compensation insurance. (DE 16-1 at 2 ¶ 8). 

On April 24, 2013, Mullendore walked into a warehouse and found Reyes not working

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and talking to another employee, hindering that employee from performing his tasks. (DE 16-1

at 2 ¶ 12). Reyes was told to find work to do but that sweeping the floor was not an option. (DE

16-1 at 2 ¶ 12). Reyes started sweeping the floor, and a foreman told him: “[Mullendore] did

not want you sweeping, find something productive to do.” (DE 16-1 at 2 ¶ 12). Reyes and the

foreman exchanged words, after which Reyes stormed into the office and began yelling at

Mullendore that he needed to go see a doctor and that Outdoor Detail needed to pay for it.6 (DE

16-1 at 2 ¶¶ 12-13). When Mullendore questioned him about that, Reyes continued to curse and

to claim that he was injured at work two weeks earlier. (DE 16-1 at 2 ¶ 13). Mullendore

responded that Reyes was not permitted to use his worker’s compensation insurance. (DE 20-1

at 1 ¶ 9). Mullendore then terminated Reyes’s employment and banned him from the property. 

(DE 20-1 at 2 ¶ 10). 

Mullendore considered Reyes’s employment terminated as of April 24, 2013, because he

had walked off the job. (DE 16-1 at 2 ¶ 15). After Reyes left on April 24, 2013, Mullendore

called the police to report the threatening nature of Reyes’s comments and actions toward him

and Outdoor Detail. (DE 16-1 at 2 ¶ 14). 

B. Reyes’s Affidavit

Reyes generally claims in his affidavit that throughout his employment with Outdoor

Detail he “was forced to do more difficult work than non-Hispanic white employees and denied

workplace benefits offered to non-Hispanic white employees including paid time off, holiday

pay, pay raises, and off-season unemployment insurance.” (DE 20-1 at 1 ¶¶ 4-5). He further

6 Mullendore claims that this altercation was the first time that Reyes notified him about any alleged work

injury. (DE 20-1 at 2 ¶ 16). 

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attests that “[t]here were non-Hispanic white employees who received these workplace benefits

and had not worked a full continuous year.”7

 (DE 20-1 ¶ 5). Reyes also attests that he and other

Hispanic employees were “called racially offensive names, including ‘tomato pickers’ and

‘wetbacks.’” (DE 20-1 at 2 ¶ 6).

 Reyes, however, does not describe how his work was more difficult than other nonHispanic employees or provide an instance in which he was required to do more difficult work. 

Nor does he describe the circumstances in which, or the frequency with which, he and other

Hispanic employees were subjected to derogatory language targeting their national origin or

otherwise expressing a bias against Hispanics. Likewise, Reyes does not identify with

specificity any similarly-situated non-Hispanic individuals who were assigned easier work tasks

or who were given paid vacation days, holiday pay, off-season unemployment insurance, or pay

raises despite having worked at Outdoor Detail for less than one full year. (See DE 20-1).

II. STANDARD OF REVIEW

Summary judgment may be granted only if there are no disputed genuine issues of

material fact. Payne, 337 F.3d at 770. When ruling on a motion for summary judgment, a court

“may not make credibility determinations, weigh the evidence, or decide which inferences to

draw from the facts; these are jobs for a factfinder.” Id. (citations omitted). The only task in

ruling on a motion for summary judgment is “to decide, based on the evidence of record,

whether there is any material dispute of fact that requires a trial.” Kodish v. Oakbrook Terrace

Fire Prot. Dist., 604 F.3d 490, 507 (7th Cir. 2010) (quoting Waldridge v. Am. Hoechst Corp., 24

7 According to Outdoor Detail’s handbook, employees are eligible to receive paid vacation days and

holiday pay “after one full year of service.” (DE 16-1 at 2 ¶¶ 18-19; DE 16-1 at 5-6). 

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F.3d 918, 920 (7th Cir. 1994)). If the evidence is such that a reasonable factfinder could return a

verdict in favor of the nonmoving party, summary judgment may not be granted. Payne, 337

F.3d at 770. 

A court must construe the record in the light most favorable to the nonmoving party and

avoid “the temptation to decide which party’s version of the facts is more likely true,” as

“summary judgment cannot be used to resolve swearing contests between litigants.” Id.

(citations omitted). However, “a party opposing summary judgment may not rest on the

pleadings, but must affirmatively demonstrate that there is a genuine issue of material fact for

trial.” Id. at 771 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

III. DISCUSSION

A. Summary Judgment Will Be Granted on Reyes’s § 1981 Discrimination Claim

Outdoor Detail seeks summary judgment in its favor on Reyes’s § 1981 discrimination

claim. As already explained, Reyes claims that Outdoor Detail discriminated against him on the

basis of his Hispanic national origin when it assigned him more difficult work tasks than nonHispanic employees; denied him paid vacation days, holiday pay, off-season unemployment

insurance, and pay raises; and subjected him to derogatory language targeting his Hispanic

national origin. 

“Section 1981 bars employers from discriminating and retaliating against employees

based on the employee’s race or national origin.”8 Tank v. T-Mobile USA, Inc., 758 F.3d 800,

805 (7th Cir. 2014) (citing Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 695 n.4 (7th Cir. 2006)). 

8

 The parties do not dispute that an at-will employment relationship is sufficiently contractual in nature to

maintain a § 1981 action for discrimination. (See DE 17 at 6; DE 28); see Walker v. Abbott Labs., 340 F.3d 471, 478

(7th Cir. 2003).

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“Race and national origin discrimination claims can be established in one of two ways: the

direct and indirect methods of proof.” Id. (citing Naficy v. Ill. Dep’t of Human Servs., 697 F.3d

504, 509 (7th Cir. 2012)). Thus, the same analysis applies to theories of liability whether under

Title VII or § 1981. See Sklyarsky v. Means-Knaus Partners, L.P., 777 F.3d 892, 896 (7th Cir.

2015) (citations omitted). 

The direct method requires the plaintiff to provide either direct or circumstantial evidence

of intentional discrimination on the basis of race or national origin by the decision-maker. Tank,

758 F.3d at 805. “Direct evidence requires an admission of discriminatory intent.” Id. (citing

Alexander v. Casino Queen, Inc., 739 F.3d 972, 979 (7th Cir. 2014)). Circumstantial evidence

typically includes: 

(1) suspicious timing, ambiguous oral or written statements, or behavior toward,

or comments directed at, other employees in the protected group; (2) evidence,

whether or not rigorously statistical, that similarly-situated employees outside the

protected class received systematically better treatment; or (3) evidence that the

employer offered a pretextual reason for an adverse employment action. 

Id. (citing Alexander, 739 F.3d at 979). 

The indirect method, that is, the burden-shifting formula in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), requires that a plaintiff establish a prima facie case of

discrimination by showing that: “(1) he is a member of a protected class; (2) he met the

employer’s legitimate business expectations; (3) he suffered an adverse employment action; and

(4) similarly situated employees outside of the protected class were treated more favorably.” Id.

at 809 (citing Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012)). “A similarly

situated employee is one whose performance, qualifications, and conduct are comparable in all

material respects.” Id. (citation and internal quotation marks omitted). If the plaintiff establishes

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a prima facie case of discrimination, the burden then shifts to the defendant to state “a legitimate,

nondiscriminatory reason for the employment action.” Id. at 809-10 (citation omitted). If the

defendant does so, the burden shifts back to the plaintiff, “who must present evidence that the

stated reason is a ‘pretext,’ which in turn permits an inference of unlawful discrimination.” Id.

(citation omitted). 

Regardless of the method employed, “when all is said and done, the fundamental

question at the summary judgment stage is simply whether a reasonable jury could find

prohibited discrimination.” Ripberger v. Corizon, Inc., 773 F.3d 871, 876 (7th Cir. 2014)

(quoting Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 840 (7th Cir. 2014)); see also

Castro v. DeVry Univ., Inc., 786 F.3d 559, 564 (7th Cir. 2015) (stating that the Seventh Circuit

Court of Appeals has, “over the past several years,” “questioned the utility of the distinctions

between” these two methods of proof, “recognizing that both methods of proof converge on the

same fundamental question: could a reasonable trier of fact infer retaliation or discrimination, as

the case may be?” (citations omitted)). 

Reyes asserts that his § 1981 discrimination claim survives summary judgment under

both the direct and indirect methods; however, he never actually analyzes his claim under the

direct method. (See DE 20 at 5). Presumably, Reyes believes that his statement in his affidavit

that he and other Hispanics were subjected to derogatory language targeting their national origin

is sufficient to demonstrate or infer intentional discrimination on the basis of national origin. As

explained earlier, Reyes states in his affidavit: “While I worked at Outdoor Detail, Hispanic

employees were also called racially offensive names including ‘tomato pickers’ and ‘wetbacks.’” 

(DE 20-1 at 2 ¶ 6). 

8
 Reyes, however, never specifies who made these derogatory comments targeting his

national origin or when this purported name-calling occurred. As such, even if someone at

Outdoor Detail harbored bias against Hispanics, Reyes does not show that such bias had any

effect on Outdoor Detail’s decisions concerning his job assignments and the denial of paid

vacation days, holiday pay, off-season unemployment insurance, and pay raises. Isolated

comments of racial bias or bias based on national origin are insufficient to establish that a

particular decision was motivated by discriminatory animus, except when the remarks are made

by the decision maker “(1) around the time of, and (2) in reference to, the adverse employment

action complained of.” Merillat v. Metal Spinners, Inc., 470 F.3d 685, 694 (7th Cir. 2006)

(quoting Hunt v. City of Markham, 219 F.3d 649, 652-53 (7th Cir. 2000)); see also Petts v.

Rockledge Furniture LLC, 534 F.3d 715, 721 (7th Cir. 2008) (stating that a remark can raise an

inference of discrimination when it “was (1) made by the decision maker, (2) around the time of

the decision, and (3) in reference to the adverse employment action” (citation omitted)). Here,

Reyes fails to make such a showing, and thus, his general statement in his affidavit, standing

alone, is insufficient to establish that any purported adverse actions by Outdoor Detail were

motivated by discriminatory animus.9

 

As to the indirect method, Reyes argues that he was treated less favorably than similarly9 With respect to the alleged derogatory statements against Hispanics, Reyes does not specifically advance

a § 1981 claim of hostile work environment based on national origin in his complaint. To succeed on a claim of

hostile work environment based on national origin, a plaintiff must show that “(1) he was subjected to unwelcome

harassment, (2) the harassment was based on his national origin, (3) the harassment was severe and pervasive

enough to alter the conditions of his environment and create a hostile and abusive working environment, and (4)

there is a basis for employer liability.” Velez v. City of Chicago, 442 F.3d 1043, 1047 (7th Cir. 2006) (alteration

brackets and citation omitted). Here, Reyes does not describe the frequency of the purported name-calling. As such,

on this record, a reasonable factfinder could not conclude that the working environment was objectively hostile. See

Hrobowski v. Worthington Steel Co., 358 F.3d 473, 477 (7th Cir. 2004) (“[A] plaintiff’s repeated subjection to

hearing [the word ‘n—–r’] could lead a reasonable factfinder to conclude that a working environment was

objectively hostile.” (emphasis added) (citations omitted)). 

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situated non-Hispanic employees, who were given easier job assignments and paid vacation

days, holiday pay, off-season unemployment insurance, and pay raises even though they had not

worked a full year for Outdoor Detail. (DE 20 at 6; DE 20-1 at 1 ¶ 5). A similarly-situated

employee is one who is “directly comparable to [the plaintiff] in all material respects.” 

Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002) (citations omitted). 

Although the relevant factors may vary depending on the case, a court should consider whether

the plaintiff and the purportedly similarly-situated employees had the same supervisor; were

subject to the same standards; and had comparable experience, education, and other

qualifications. Id. (citations omitted). A plaintiff need not demonstrate complete identity;

“[w]hat is required is ‘substantial similarity’ given all relevant factors in the case.” Luster v. Ill.

Dep’t of Corr., 652 F.3d 726, 730 (7th Cir. 2011) (citation omitted). 

Reyes, however, has not presented any admissible facts about any particular similarlysituated non-Hispanic worker that would tend to show that such a worker was treated more

favorably than him. See Tank, 758 F.3d at 810. That is, Reyes does not identify any nonHispanic employee by name or with specificity, much less show that such employee had the

same supervisor; was subject to the same standards; worked similar hours; and had comparable

experience, education, and other qualifications. Patterson, 281 F.3d at 680. “It [is] up to [the

plaintiff] to find others who were directly comparable [to him] in all material respects.” Sublett

v. John Wiley & Sons, Inc., 463 F.3d 731, 740 (7th Cir. 2006) (citations and internal quotation

marks omitted). Absent such a showing, Reyes’s generalized assertions cannot support a

discrimination claim. See Anderson v. Donahoe, 699 F.3d 989, 996 (7th Cir. 2012) (“[A]

conclusory allegation is insufficient to raise a genuine issue of material fact.”). 

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Reyes’s failure to establish any one of the four elements of the prima facie case renders

summary judgment appropriate for Outdoor Detail. See Fisher v. Wayne Dalton Corp., 139 F.3d

1137, 1142 (7th Cir. 1998) (“Fisher fails to raise a genuine issue of material fact that he could

satisfy the prima facie case requirement that a similarly-situated employee received more

favorable treatment . . . . This court need not proceed any further in the McDonnell Douglas

analysis once we determine that a claimant has failed to make a prima facie case.” (citations

omitted)); see also Bio v. Fed. Express Corp., 424 F.3d 593, 596-98 (7th Cir. 2005); Jones v.

Nat’l Council of Young Men’s Christian Assocs., 48 F. Supp. 3d 1054, 1105 (N.D. Ill. June 18,

2014) (“Where the plaintiff has not even attempted to identify a single employee with enough

common factors to allow for a meaningful comparison, . . . no reasonable factfinder could

conclude that the plaintiff has met his burden for that element of a prima facie case.”). 

“Summary judgment is not a dress rehearsal or practice run; it is the put up or shut up moment in

a lawsuit, when a party must show what evidence it has that would convince a trier of fact to

accept [his] version of events.” Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th

Cir. 2005) (citation and internal quotation marks omitted). 

Therefore, because Reyes fails to produce evidence sufficient to demonstrate or infer

intentional discrimination under the direct method, and because Reyes fails to identify with

specificity any similarly-situated individual outside of his protected class who was treated more

favorably than him under the indirect method, summary judgment will be GRANTED in

Outdoor Detail’s favor on Reyes’s § 1981 discrimination claim.

B. Reyes’s Frampton Claim Will Be Remanded to State Court

As to Reyes’s Frampton claim, “[n]ormally, when all federal claims are dismissed before

11
trial, the district court should relinquish jurisdiction over pendent state-law claims rather than

resolving them on the merits.” Sharp Elecs. Corp. v. Metro. Life Ins. Co., 578 F.3d 505, 514

(7th Cir. 2009) (citation and internal quotation marks omitted); see 28 U.S.C. § 1367(c). Courts

acknowledge three exceptions to this rule: “when (1) the statute of limitations has run on the

pendent claim, precluding the filing of a separate suit in state court; (2) substantial judicial

resources have already been committed, so that sending the case to another court will cause a

substantial duplication of effort; or (3) when it is absolutely clear how the pendent claims can be

decided.” Id. (citation and internal quotation marks omitted). 

As to the first exception, this case originated in state court and was removed here; thus,

the statute of limitations is not an issue. See, e.g., Lantz v. Office of Jackson Twp. Tr., 938 F.

Supp. 2d 810, 822 (N.D. Ind. 2013); MacDonald v. LIFE, Inc., No. 1:10-CV-68 JD, 2012 WL

1095211, at *6 (N.D. Ind. Mar. 30, 2012). Nor has the Court committed “substantial judicial

resources” to the this case or the Frampton claim specifically, as the Court has resolved Reyes’s

§ 1981 discrimination claim on summary judgment. See Davis v. Cook Cty., 534 F.3d 650, 654

(7th Cir. 2008) (finding that “substantial judicial resources” had not yet been committed to the

case where the district court had disposed of the federal claims on summary judgment); Lantz,

938 F. Supp. 2d at 822. Although the parties have engaged in discovery in this forum, those

discovery efforts need not be duplicated because the record survives on remand. See

MacDonald, 2012 WL 1095211, at *6. Finally, given the proximity in time between Reyes’s

assertion of a worker’s compensation claim and his termination, it is not absolutely clear how the

Frampton claim should be decided. See Mack v. Great Dane Trailors, 308 F.3d 776, 784 (7th

Cir. 2002) (“Depending on the circumstances, . . . causation may be inferred from the ‘rapidity

12
and proximity in time’ between the employee’s filing for benefits and the discharge . . . .”

(citations omitted)); Lantz, 938 F. Supp. 2d at 822; MacDonald, 2012 WL 1095211, at *6. 

Therefore, under 28 U.S.C. § 1367(c)(3), the Court declines to continue to exercise

jurisdiction over Reyes’s Frampton claim and will remand the case to Allen Superior Court

where this case originated. See Johnson v. Siemens Bldg. Techs., Inc., 273 F. App’x 543, 549

(7th Cir. 2009) (concluding that the district court reasonably exercised its discretion in declining

to exercise supplemental jurisdiction over plaintiff’s state-law retaliatory discharge claim);

Noriega v. BRC Rubber Grp. Inc., 1:04-CV-0057, 2005 WL 3132348, at *12 (N.D. Ind. Nov. 22,

2005) (granting summary judgment on plaintiff’s Title VII and ADA claims that created federal

jurisdiction and dismissing without prejudice plaintiff’s Frampton claim so that plaintiff could

pursue it in state court). 

IV. CONCLUSION

For the foregoing reasons, Outdoor Detail’s motion for summary judgment (DE 16) is

GRANTED with respect to Reyes’s § 1981 discrimination claim, and Outdoor Detail’s motion to

strike (DE 23) is DENIED AS MOOT. The Court declines to exercise supplemental jurisdiction

pursuant to 28 U.S.C. § 1367(c)(3) over Reyes’s state-law retaliation claim and REMANDS this

case to Allen Superior Court. The Clerk of Court is DIRECTED to treat this matter as closed. 

SO ORDERED.

Entered this 6th day of February 2017.

/s/ Susan Collins 

Susan Collins,

United States Magistrate Judge

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