Products’ legitimate expectations. First, he attacks the policies and enforcement of them,
Related to attendance, Spencer claims thal his absences should be disregarded because Corn
Products’ policy was to count sick days as unexcused absences. This argument has no merit,
however, because there is no evidence that Corn Products’ attendance policy is arbitrarily
enforced or discriminatory, See Flores y. Preferred Technical Group, 182 F.3d 512, 515 (7" Cir.
1999).

Next, Spencer claims that the violations were “unwarranted.” The undisputed facts,
however, do not support this statement. Spencer did not contest Corn Products’ statements
surrounding the disciplinary notices. He did not submit facts in the record to show that he was
mecting Corn Products’ bonafide expectations. Spencer, therefore, has not shown that a genuine
issue of material fact cxists as to whether he met his employer’s legitimate expectations.

2. Spencer has not produced evidence that Corn Products treated him
differently than similarly situated employees outside his racial class

To satisfy the fourth prong of the McDonnell Douglas test, Spencer must show that Corn
Products treated him less favorably than similarly situated employees that are not African
American. The Seventh Circuit has explained the analysis of whether a plaintiff has met this
burden:

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 the

employer’s treatment of them.

Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7" Cir. 2000).

Spencer only points to Richard Omiencinski, a Caucasian employee, as someone who was



undisclosed period of time, (/d.) On each of these occasions, Com Products either suspended
Spencer or issued a written warning. (/d. ¥ 14.) Each of these disciplinary notices stated that
future incidents would result in increased discipline, up to and including suspension preliminary
to discharge. (/d.) Afier being disciplined on April 19, 1999, Spencer filed a union grievance
related to the company’s attendance policy. (R. 10-3, Def.’s Statement of Material Facts 15.)
That grievance was denied. (/d.)

D. Unsatisfactory Work Performance

Corn Products disciplined Spencer for unsatisfactory work performance on several
occasions. (R. 10-3, Def.’s Statement of Material Facts 17.) Corn Products issued disciplinary
notices to Spencer for these violations on: (1) April 3, 1992 for shipment of an order that did not
comply with the specifications and for failing to send a certificate of analysis to the customer; (2)
October 5, 1992 for fuiling to follow written instructions; (3) April 3, 1994 for failure to adjust
process to correct manufacture of product that was outside of the specification; (4) September 16,
1999 for failure to check for open water valves that caused certain belts being bumed off: and (5)
October 8, 1999 for poor quality of analysis and duplication of product. (/d.) Spencer himself
reported his mistake with respect to the September 16, 1999 incident. (Jd. 4 18.) Each of Com
Products’ disciplinary notices explained to Spencer that his actions demonstrated poor
performance and that further infractions would lead to further disciplinary action. (Jd.)

E. Violation of Work Rules

Corn Products also disciplined Spencer for violating its work rules. (R. 10-3, Def.’s
Statement of Material Facts 19.) Corn Products issued disciplinary notices to Spencer for these

violations on: (1) May 22, 1997 for leaving his work post to exchange cassette tapes in the



Products argues that it is entitled to judgment as a matter of law with respect to Spencer’s
retaliation claim because there is no evidence that he engaged in protected activity under Title
VIL. Third, Com Products argues that Spencer’s retaliation claim is preempted under the
National Labor Relations Act.

I, Corn Products Is Entitled To Judgment As A Matter Of Law With Respect To
Spencer’s Racial Discrimination Claims

A. Spencer’s Complaint is not Beyond the Scope of His E.E.0.C. Charge

As a general rule, a plaintiff suing under Title VI cannot bring claims in a lawsuit that
were not included in his E.E.O.C. charge. Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7TM
Cir. 1992). “An aggrieved employee may not complain to the EEOC of only certain instances of
discrimination, and then scck judicial relief for different instances of discrimination.” Jd. Here,
Spencer complained to the E.E.O.C. that “non-African American employees were not disciplined
or terminated even though they also incorrectly filled out their time sheets.” (R. 1-1, Compl, Ex.
B.) Defendant contends that Spencer’s action is beyond the scope of his E.E.O.C. charge to the
extent that it seeks redress for Corn Products’ discipline of Spencer for improperly leaving a
watcr valve open.

Since most E.E.O.C, charges are filled out by laypersons, rather than by attomeys, a

Title VII plaintiff need not allege in the E,E.O.C. filing “cach and every fact that combines to
form the basis of each claim in her complaint.” Cheek v. Western & S. Life Ins. Co., 31 F.3d 497,
500 (7" Cir. 1994). The test for determining whether a plaintiff's claims are within the scope of

his EEOC charge is (1) whether “there is a reasonable relationship between the allegations in the

charge and the claims in the complaint” and (2) whether “the claim in the complaint can



J, Infractions Meeting

Spencer met with his supervisor on June 23, 2000 to discuss recent infractions. (R. 10-3,
Def.’s Statement of Material Facts 27.) At that meeting, the supervisor gave Spencer two
disciplinary notices — one for the falsification of his time records and the other for his failure to
fill out the pre-crystallization daily log shect.

Spencer’s supervisor informed him that a random audit had been conducted of Spencer’s
time records, (R. 10-3, Def.’s Statement of Material Facis { 29.) His supervisor told him that the
audit had revealed a pattern of fraud by Spencer. (/d.) Spencer asked if his pay could be docked
for the portion of time that he had recorded but had not worked. (/d. 931.) Com Products
instead decided to issue Spencer a five-day suspension pending the advisability of discharge. (/d.
132.)

Spencer spoke to a union representative to request a predischarge decision meeting. (/d. {|
33.) The union and Corn Products granted that request. (/d.) The predischarge mecting
oceurred on June 29, 2000, with Corn Products presenting Spencer’s infractions and Spencer
asking for leniency and admitting fault. (/d. 434.) After the mecting, Corn Products decided to
terminate Spencer because of his poor work performance and for his falsification of time sheets.
(id. | 35.) Com Products sent Spencer a notice of termination on July 10, 2000. (R. 24-1, Pl.’s
Statement of Undisputed Facts 4 27.) The notice cited Spencer’s infractions on June 16 and June
20, 2000 as the reason for his termination. (Jd.)

IV, Other Corn Products Employees

A. Richard Omiencinski

Richard Omiencinski, a non-union refinery worker, once recorded eight hours on his time



parking lot; (2) June 23, 2000 for failing to Fill out, despite repeated wamings and discipline, a
necessary daily log shect and for continuing a pattern of failing to properly complete required
documentation that jeopardized certification; and (3) June 23, 2000 for recording time that he did
not actually work on his time records. (Zd. { 20.)

F, Oral Reprimands

In addition to this formal discipline, Spencer also received oral reprimands on multiple
occasions, (/d. 21.) Specifically, Com Products counseled Spencer on: (1) November 16, 1999
for failing to put his name on certain sheets relating to performance of his operator duties; (2)
March 8, 2000 for making numerous crrors in filling out forms on particular lot numbers; and (3)
April 13, 2000 for carelessness in improperly logging certain lot numbers. (/d. 721.)

G. Unrecorded Daily Log Sheet

Spencer failed to fill out an cssential portion of the pre-crystallization daily log sheet on
June 16, 2000, (R. 10-3, Def.’s Statement of Material Facts {| 23.)

I. Falsification of Time

On June 19, 2000, Spencer was scheduled to begin working at 7:00 a.m, (R. 10-3, Def.’s
Statement of Material Facts 24.) He arrived at 8:31 a.m., which caused a worker on the
previous shift to stay on the job for an extra hour-and-a-half. (/d.) Corn Products had to pay that
worker at the overtime rate for the time he filled in for Spencer. (/d.) Spencer reported that he
began work on time. (/d.)

On June 20, 2000, Spencer’s supervisor spoke to him about misreporting time. (R. 10-3,
Def.’s Statement of Material Facts { 25.) Despite this warming, on the very same day Spencer

credited himself for 45 minutes of time that he did not work. (Id.)


A party will be successful in opposing summary judgment only if it presents “definite,
competent evidence to rebut the motion.” £.E.0.C. v. Sears, Roebuck & Co., 233 F.3d 432, 437
(7" Cir, 2000). The Court must view all evidence and draw all reasonable inferences in the light
most favorable to Plaintiff, as (he non-moving party. Miller vy. American Family Mut. Ins. Co.,
203 F.3d 997, 1003 (7" Cir, 2000).

ANALYSIS

Spencer filed a three count Complaint against Corn Products on November 1, 2001. In
Counts I and IT, Spencer claims that Corn Products terminated him on the basis of race in
violation of 42 U.S.C. § 1981 and Title VII. In Count UI, Spencer claims that Corn Products
retaliated against him on the basis of his action as a union steward,

Com Products has moved for summary judgment on all counts. First, Corn Products
claims that it is entitled lo judgment as a matter of law with respect to both of the racial
discrimination claims because: (a) Spencer camnot establish a prima facie case of discrimination

and (b) some of Spencer’s claims are beyond the scope of his E.E.0.C. charge.” Second, Com

* Com Products also claims that Spencer cannot maintain a claim under § 1981 because that
statute requires there to be a contractual relationship between the parties. Defendant claims that
no contractual relationship existed because Spencer was an at-will employee. Spencer does not
contest whether an at-will employment relationship is a contract for purposes of § 1981. Every
appellate court that has confronted the issue, however, has found that an at-will employee can
bring suit under § 1981. See Skinner v. Maritz, Inc., 253 F.3d 337, 340-41 (8" Cir, 2001);
Lauture v, International Bus. Machs. Corp., 216 F.3d 258, 261-62 (2d Cir. 2000); Perry v.
Woodward, 199 F.3d 1126, 1133-34 (10" Cir. 1999); Spriggs v. Diamond Auto Glass, 165 F.3d
1015, 1018 (4" Cir. 1999); Fadeyi v. Planned Parenthood Ass'n of Lubbock, Inc., 160 F.3d 1048,
1051-52 (5" Cir. 1998). The Seventh Circuit has not yet found the need to address the issue. See
Staples v. Pepsi-Cola Gen. Bottlers, Inc., 312 F.3d 294, 298 n. 3 (7" Cir, 2002). Spencer instead
counters that an employment contract existed through a collective bargaining agreement between
his union and Com Products. The Court declines to address this issue because Spencer’s racial
discrimination claim cannot otherwise withstand summary judgment, See Gonzalez v, Ingersoll
Mill. Mach. Co., 133 F.3d 1025, 1034 (7" Cir. 1998).

8



+
Minute Order Form (06/97)

/y ae United States District Court, Northern District of Minois

Sitting Judge if Other
Amy J. St. Eve than Assigned Judge

or Magistrate Judge

CASE NUMBER 01 C 8379 DATE 4/4/2003
CASE Spencer vs. Com Products
TITLE

[Im the following box (u) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (h) state bricfly the nuture
of the motion being presented. ]

MOTION;

DOCKET ENTRY:

(1) Oo Filed motion of | use listing in “Motion” box above.)

(2) Oo Brief in support of motion due

(3) a Answer briefto motion duc. Reply to answer briefduc

(4) Cl Ruling/Hearingon__ ___setfor__ at

(5) a Status hcaring[held/continued to] [set for/re-set for]on set for__ at .

(6) oO Pretrial conterence[held/continued to] [set for/re-set for]on_____—setfor_— at
(7) Oo Trial{set for/re-set for}on___ at

(8) oO [Bench/Jury trial] [Hearing] held/continued to __at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) CO Local Rule 41.1 OFRCP41(a)(1) CO FRCP41(a\(2),

(0) [Other docket entry] Enter Memorandum Opinion and Order. Defendant’s motion for summary

judgment is granted.

(11) @f [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. ;
umber of notices

APR OO?

ate docks

o | Notices maited by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

| Mail AQ 450 form, Lened LaMisia ‘sa
‘ I

Copy to judge/magistrate judge

43472003

date wviled notice

Bath dd NH Udit cu

courtroom
THY deputy’s
initials

Cohohtd end ict

central Clerk's Office mailing epury initials



B. Spencer Cannot Establish a Prima Facie Case of Discrimination

Spencer concedes that there is no direct evidence that Comm Products racially
discriminated against him. Therefore, Plaintiff can only prove discrimination indirectly via the
McDonnell Douglas method. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973). Under that prima facie test, Spencer must show that he: (1)
belongs to a protected class, (2) performed his job according to his employer’s legitimate
expectations, (3) suffered an adverse employment action, and (4) was treated less favorably than
other similarly situated employees outside the protected class. See Brummett v. Lee Enters., Inc.,
284 F.3d 742, 744 (7" Cir. 2002). If Plaintiff establishes a prima facie case of discrimination,
the burden of production then shifts to his employer to articulate some legitimate,
nondiscriminatory reason for its employment decision. 7d. Once the employer submits this
proffered reason, the burden then shifts back to Plaintiff to show that his employer’s stated
reason is merely a pretext for discrimination. Hong v, Children’s Mem'l Hosp., 993 F.2d 1257,
1261 (7" Cir. 1993), This analysis applies for both Title VI and Section 1981 claims. Logan v.
Kautex Textron N. Am., 259 F.3d 635, 637 n.1 (7 Cir, 2001),

The parties agree that Spencer belongs to a protected class and was terminated.
Therefore, the only issue for this Court is whether there are genuine disputes of material fact as to
whether Spencer sufficiently performed his job and was treated less favorably than non-African
American similarly situated employees.

1. The undisputed facts show that Spencer did not perform his job
according to Corn Products’ legitimate expectations

Unless a plaintiff can establish that he was meeting his cmployer’s bona fide



reasonably be expected to grow out of an EEOC investigation of the allegations in the charge.”
Cheek, 31 F.3d at 500. Spencer argues that “{aJn EEOC investigator would have likely
interviewed Spencer, which would have revealed other examples of how Spencer felt he was
being discriminated against.” (R. 22-1, Pl.’s Mem. in Opp. to Def.’s Mot. for Summ. J. at 6.)
This argument misconstrucs the purposes of the E.E.O.C. filing requirement. The rule is
intended to afford the E.E.O.C. and the employer an opportunity to settle the dispute through
conference, conciliation and persuasion. Alexander y. Gardner-Denver Co., 415 U.S. 36, 44, 94
§.Ct. 1011, 1017, 39 L-Ed.2d 147 (1974), Additionally, it provides the employer with some
waming of the conduct about which the employee is aggrieved. Rush, 966 F.2d at 1110. It also
frames the issues for the E.E.O.C. so an investigator can conduct an efficient inquiry. A finding
that a plaintiff has exhausted his administrative remedies where he simply claims that he would
have provided more examples of discrimination during an interview would eviscerate the rule.

Looking instead at the E.E.O.C. charge from the perspective of Cor Products and the
E.E.0.C., there is a reasonable relationship between the charge and the Complaint’s allegations
conceming the open water valve, Defendant admits that Spencer was fired not just for the one
incident related to his time shect, but because the incident was the culmination of a long line of
workplace violations. Therefore, a reasonable inquiry into Spencer’s termination would have
tured up past violations, including the citation for leaving the water valve open.

That being said, the allegations related to the open water valve have extremely limited
relevance here, Spencer alleges in his Complaint that he was terminated based on discrimination

and retaliation. He does not state a cause of action based on Corn Products’ discipline of him for

leaving the water valve open.

10



sheet when he truly only worked six hours. (R. 10-3, Def.’s Statement of Material Facts {] 37; R.
24-1, Pl.’s Statement of Undisputed Facts 4] 24.) Com Products only issued Omiencinski a
disciplinary suspension.

B. Stephen Wright

Stephen Wright, an African-American, was a Com Products employee. (R, 10-3, Def.’s
Statement of Matcrial Facts 7 39.) At some point, Wright left a water valve open for six to seven
hours. (/d.) Although management met with Wright about the incident, he reccived no written
wamning or discipline for this incident. (/d.) Based on other performance issues, Com Products
suspended Wright and ultimately terminated his employment. (Jd.)

STANDARD

Summary judgment should be granted where there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine
issuc of material fact cxists only if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Pugh v. City of Attica Indiana, 259 F.3d 619, 625 (7" Cir.
2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct, 2505, 2510, 91
L.Ed.2d 202 (1986)). The party seeking summary judgment has the burden of establishing the
lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106
$.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The party that bears the burden of proof ona
particular issue, however, may not rest on its pleadings but must affirmatively demonstrate that
there is a genuine issue of material fact. /d. at 324, 106 §.Ct. at 2553. A mere scintilla of

evidence in support of the non-movant’s position is insufficient. See Anderson, 477 U.S. at 252,

106 S.Ct. at 2512.



specifications for sweetness. (R. 10-3, Def.’s Statement of Material Facts { 4, 9.) If he found

that the products were reading outside of the specifications, Spencer was expected to make
adjustments to the manufacturing process to bring the product in line with the specifications. (Jd.
19)

Tn October 1996, Spencer iransferred to a position as a customer service agent. (R. 10-3,
Def.’s Statement of Material Facts {j 10.) In this role, Spencer was to answer telephones, take
orders, and prepare those orders for processing. (/d.) A year or two later, Spencer moved back
into a unionized position in Cor Products’ plant. (R. 10-3, Def.’s Statement of Material Facts J
11.) Instead of working in the refinery as he did before, Spencer moved to the dextrose unit.
da.)

During his employment with Com Products, Spencer served as a union steward. (R. 24-
1, Pl.’s Statement of Uncontested Facts 77.) As a union steward, Spencer brought employment
issues to the attention of management and attempted to work with management to resolve these
issues. (/d.)

Cc. Attendance Problems

During his employment with Corn Products, Spencer violated its attendance policy on
several occasions and suffered disciplinary action. (R. 10-3, Def.’s Statement of Material Facts 4
13.) Corn Products issued disciplinary notices to Spencer for these violations on: (1) May 2,
1991 for three absences in four months; (2) May 9, 1991 for four absences in five months; (3)
September 11, 1992 for five absences in twelve months; (4) October 5, 1992 for cight absences
in twelve months; (5) April 19, 1999 for six absences in eighteen months; (6) October 29, 1999

for eight absences within eighteen months; and (7) June 16, 2000 for three absences over an



similarly situated and received more favorable treatment. Spencer does not explain how
Omiencinski is similarly situated other than the fact that he was not terminated for falsifying
time. Indeed, the undisputed facts show that Omiencinski was not a similarly situated employee.
Most telling on this point is that Omiencinski was a non-union employee while Spencer was
unionized. As such, Omiencinski and Spencer were subject to different work rules. Spencer’s
work rules were defined through a collective bargaining agrecment. Omicncinski’s employment
was not governed by that agreement. Also, Omiencinski worked in Com Products’ refinery,
while Spencer was assigned to Com Products’ dextrose department. Spencer has not shown a
genuine issue of material facts exists as to whether he and Omiencinski were similarly situated.

Further, Spencer has not shown that Corn Products treated Omicncinski more favorably.
Spencer has not introduced any evidence showing how many other times Omiencinski had
broken workplace rules or whether Corn Products was aware of those violations. Spencer,
meanwhile, had a history of documented performance and attendance problems. Summary
judgment is the “put up or shut up” moment in a lawsuit, when Spencer has to show what
evidence he has that would convince a trier of fact to accept his version of events. Schacht v.
Wisconsin Dept. of Corr., 175 F.3d 497, 504 (7" Cir. 1999). Having failed to meet his burden in
two prongs of the prima facie test, Spencer cannot survive summary judgment.

Il. Corn Products Is Entitled To Judgment As A Matter Of Law With Respect To
Spencer’s Retaliation Claim

Spencer claims that Com Products terminated him in retaliation for his activity as a union
steward. As with discrimination, retaliation can be shown either directly or indirectly. Having

no evidence of direct retaliation, Spencer attempts to make his case through the indirect method.

14



Spencer’s retaliation claim is preempted under the National Labor Relations Act.
CONCLUSION
Spencer has failed to introduce evidence of a prima facie case of racial discrimination or
retaliation. There is no genuine issue of material fact and Corn Products is entitled to judgment

as a matter of law. Accordingly, Corn Products’ motion for summary judgment is granted.

Dated: April 4, 2003 ENTERED

Crates

AMY J. ST.
United States District Court Judge

16



IL Specifications and Certifications

While Spencer worked for Corn Products, some of its processing units were certified for
quality and safcty standards by the International Standards Organization (“ISO”). (R. 10-3,
Def.’s Statement of Material Facts { 7.) Becausc certain customers mandated that its units were
1SO certified, a loss of certification would directly result in a loss of business. (/d.) Inspectors
periodically performed audits of these units to ensure that Com Products was meeting ISO
standards. (/d.) Included in some of these audits was a revicw of the unit’s adherence to record-
keeping requirements, (/d.)

Along with mandating certification, Corn Products’ customers also had very strict
specifications for its manufacture of fructose. (/d. 6.) In order to meet those spccifications,
each employee has to fulfill his or her responsibilities without crror. (/d.)

Ill. Spencer’s Employment

A. Orientation

Corn Products hired Spencer as a mechanical operator for its refinery in June of 1990.
(R. 10-3, Def.’s Statement of Material Facts J 4, 9.) When Spencer began work at Corn
Products, the company’s human resources personnel and a supervisor gave him an orientation.
Ud. 48.) During this orientation, Com Products told Spencer its expectations in terms of his
behavior and attendance. (/d.) Its attendance policy in particular had been ratified by Spencer’s
union. (Jd.)

B. Duties

As amechanical operator, Spencer was responsible for monitoring the sugar-making

proccss by taking readings and keeping the products that had readings within certain



TN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
SAXON SPENCER, )
) . a |
Plaintiff, ) :
) Civil Action No. 01 C8379 aca
v, ) \
) apr 7 2003 \
CORN PRODUCTS INTERNATIONAL, )
INC, ) .
) ce eeu i
Defendant. ) \magarsansaioonsdind

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, Judge:

Saxon Spencer claims that Corn Products fired him on the basis of his race and retaliated
against him because of his activity as a union steward. Corn Products International, Inc. (“Corn
Products”) moves for summary judgment. As detailed below, the undisputed facts show that
Corn Products is entitled to judgment as a matter of law. Accordingly, its motion for summary
judgment is granted.

UNDISPUTED FACTS!
I, Parties

Plaintiff Saxon Spencer is an African-American male. (R. 10-3, Def.’s Statement of

Material Facts { 3.) Com Products is a corporation doing business in Illinois that mainly

manufactures various forms of fructose for human consumption. (/d. ff] 5-6.)

' In conjunction with this opinion, the Court has issued a separate order that, where appropriate
under the Local Rules, deems certain statements of undisputed fact admitted and strikes others,

30



expectations, he is not entitled to present his case to the jury. Contreras v. Suncast Corp., 237
F.3d 756, 761 (7" Cir. 2001), As long as the employer’s expectations are in good faith, the
Court’s role is only to determine if the employee met them. See Robin v. Espo Eng'g Corp., 200
F.3d 1081, 1090 (7° Cir. 2000). In other words, it is not the Court’s job to establish the
employer’s reasonable expectations.

The undisputed facts show that Spencer did not meet Com Products’ legitimate
expectations. Spencer received citations for numerous shortcomings. For example, Com
Products issued seven disciplinary notices to Spencer for violations of its attendance code. Three
of these notices came in Spencer’s last fourteen months of employment. Corn Products also
disciplined Spencer five times for work that was unsatisfactory, Two of these incidents occurred
in Spencer’s last nine months of employment. Additionally, Corn Products sent Spencer two
notices for violations of its work rules. The last one, dated June 23, 2000, cited two distinct
violations and was issued on Spencer’s last day working for Corn Products. Further, Spencer
received three oral reprimands in his last seven months of employment for errors in filling out
documentation. Finally, in his last week of work, Spencer failed to fill out an cssential portion of
a daily log sheet and twice misreported the time he worked. Corn Products cited his
misrepresentation of time as the last straw in terminating Spencer’s cmployment. These facts
together show that Spencer did not meet Corn Products’ legitimate expectations. See Peele v.
Country Mut. Ins. Co., 288 F.3d 319, 328 (7° Cir. 2002) (nine critical written evaluations plus
several written warnings showed that plaintiff did not meet her employer’s legitimate
expectations),

Although Spencer admits these facts, he somehow claims that he was meeting Corn

12



The Seventh Circuit has adapted the McDonnell Dougtas prongs to the retaliation context. Stone
v. City of Indianapolis Public Utils. Div., 281 F.3d 640, 644 (7" Cir), cert. denied, U.S. _,
123 S.Ct. 79, 154 L,Ed.2d 134 (2002). At the first stage, Spencer must show that: (1) he engaged
in statutorily protected activity; (2) he performed his job according to Corn Products’ 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. Jd. at 644; Hilt-Dyson v. City of Chicago, 282 F.3d 456,
466 (7 Cir.), cert. denied, U.S. __, 123 $.Ct. 97, 154 L.Ed.2d 27 (2002).

Once again, Plaintiff cannot make a prima facie showing of discrimination. First,
Spencer cannot meet the first prong. Serving as a union steward is not protected activity under
Title VIL See Washington v. American Stores Co., Inc., No. 98 C. 1439, 1999 WL 966092, at *6
(N.D. TI, Oct. 14, 1999), aff'd, 234 F.3d 1275 (7" Cir. 2000). Second, as the Court addressed
above, Spencer cannot show that he performed his job according to Corn Products’ legitimate
expectations. Third, allhough Spencer points to Steven Wright, he has not created a genuine
issue of material fact as to whether Corn Products treated him less favorably than similarly
situated employees who did nol engage in statutorily protected activity. Spencer complains that
Wright left the water valve open but did not receive a citation. Spencer, however, was not
terminated for leaving a water valve open, Instead, Corn Products fired Spencer after he falsified
his time record in the context of his other failures. Further, Com Products ultimately terminated
Wright for other violations.

Because Spencer cannot establish a prima facie case of retaliation, Corn Products is

entitled to judgment as a matter of law. The Court therefore declines to address whether

15