dismal performance record. But it is undisputed that Karier
terminated Qualiter because of one of his three accidents.* And
that fact undercuts Morris' argument that Qualiter was granted
preferential treatment (in that respect, Logan, 259 F.3d at 639
held that an African-American plaintiff failed to satisfy the
fourth McDonnell-Douglas criterion because white employees were
also terminated in similar manner) .

Nor can Morris salvage his argument by claiming that
Qualiter was treated more favorably because he may have been
given more chances before he was terminated. In that regard
Morris has pointed to no evidence from which a jury could
reasonably infer that Qualiter denied having his accidents or
that Karier believed that he was lying about his conduct. By
contrast, those aspects of Morris' violations directly led to his
termination and thus legitimately distinguish Qualiter's conduct.
So even if Morris had shown that Qualiter was treated more
favorably (as he has not), Morris has failed to raise a
reasonable inference that the two were similarly situated.

Morris! references to other white drivers who had accidents
er who otherwise violated Jewel's policies are similarly
unavailing. Although a number of them had accidents and were not

terminated, as was Qualiter, Morris has put forth no evidence

3 In fact, Karier testified that he sought to terminate
Qualiter for another of the accidents but did not because the
Union protested (J. Ex. 4, Karier Dep. 90-91).

13



937) .?

Ksepka orally reported the May 2 incident to Terminal
Manager Frank Karier (“Karier”), who was responsible for driver
discipline and had the authority to hire and fire (J. St. 441-2,
25), On May 4 Karier sent an e-mail to other Jewel managers
describing Morris' misconduct and finding that Morris had
violated multiple policies and procedures, including leaving a
truck unattended and unlocked, illegally parking while on a
break, stealing time by taking a break at the start of his shift,
taking care of personal business on company time, going home for
a break and failing to maintain a current log (id. 25). Karier
recommended that Morris be placed on indefinite suspension that
would be reduced to a three day suspension without pay if Morris
showed remorse (id.).

Before any such action was taken, Morris' next work day

> Contesting Morris' account, Jewel has supplied an
affidavit from Human Resource Manager Cheryl Nolan stating that
she called the Jewel terminal after seeing the truck parked in

the residential area (J. St. 9§J17-21). Ksepka reports that he
went out to investigate, found the log inside the truck and
learned that Morris was the driver (id.). After waiting 15

minutes, Ksepka called the Jewel terminal and then rang the
doorbell of a nearby house that he had been told was Morris‘ home
address (id.). When Morris answered the door, Ksepka questioned
him about his conduct, told Morris that he was in violation of a
number of Jewel policies and informed him that his workday would
be placed in question (id. §921-22). Because of the operative
principles governing summary judgment motions, this opinion will
accept Morris! version arguendo even though an evaluation of the
credibility of the two stories (impermissible for Rule 56
purposes) might well point the other way.

4



Karier’s May 4 e-mail, that Morris had violated Jewel policies
and should be disciplined.

Lastly, Morris’ other efforts to demonstrate pretext are
likewise unsuccessful. As described above he has failed to
identify similarly situated employees who were treated more
favorably by Karier*®. That Jewel’s managers have discretion to
discipline driver misconduct depending upon the circumstances
does not help Morris’ case, because he has not shown that Jewel
discriminated against him in exercising that disciplinary
diseretion. Nor can Morris establish pretext by recounting his
earlier claims of harassment, because those allegations are
totally unconnected to Karier and to his decision to terminate
Morris for the May incidents. ‘In sum, Morris has failed to
demonstrate that Jewel's proffered reason is unworthy of
credence,

Conclusion

Morris has failed to present evidence from which any
reasonable inference of racial discrimination may fairly be
drawn. In Rule 56 terms, he has not shown a genuine issue of
material fact, so that Jewel is entitled to a judgment as a

matter of law. Its summary judgment motion is granted, and this

+9 That Jewel employee Alan DalPonte may have provided
Morris with the names of those white employees (M. St. 9953-54)
does not change the above analysis, which has concluded that they
were not in fact situated similarly to Morris.

17



favorably than similarly situated employees outside the protected
class (Logan v. Kautex Textron N. Am., 259 F.3d 635, 639 (7th
Cir. 2001)). I£ Morris meets those requirements, a rebuttable
presumption of discrimination arises and the burden shifts to
Jewel to articulate some non-discriminatory reason for its
actions (Loyd, 25 F.3d at 522). If Jewel does so the presumption
dissolves, and Morris (who always retains the burden of
persuasion) must establish that Jewel's asserted reason was
pretextual (id.).

Morris clearly meets the first and third requirements of his
prima facie case: He is African-American, and his termination
was of course an adverse employment decision. But Morris fails
the fourth requirement, because he has not shown that an employee
outside the protected class was treated more favorably. Even
more importantly in ultimate terms, Morris has not created an
issue of material fact that could undermine Jewel's stated
reasons for his termination, so that no reasonable jury could
find those reasons were a pretext’.

Morris’ prima facie case is flawed because he has failed to

® As the ensuing discussion reflects, the same analysis
that defeats Morris on the issue of pretext vel non is also fatal
to the second element of a prima facie case--that relating to the
employer's legitimate expectations. But as both this Court (see,
e.g., Peyton v. Otis Elevator Co., 72 F. Supp. 2d 915, 919 (N.D.
Ill. 1999)) and our Court of Appeals (see, e€.g., Olsen v.
Marshall & Ilsley Corp., 267 F.3d 597, 600-01 (7th Cir. 2001))
have frequently done, on that score this opinion has moved
directly to the dispositive failure to show pretext.

9



the discussion was stopped so that Morris could seek medical
attention (id. 434). Ksepka documented an account of the Route
53 accident in a memorandum to Karier dated May 13 (id.).

Over the next few days Ksepka investigated the cause of the
damage to the trailer. By reenacting one of Morris' May 5
deliveries, he found that the dent on the vehicle exactly matched
damage to a post at a Glenview Jewel store (J. St. 435). Ksepka
concluded that Morris had hit the post and damaged the fifth
wheel by attempting a tight left-hand turn into an alley, rather
than backing into the alley (id. 4935-38). Ksepka submitted his
findings in a May 27 report to Karier (id. 438). Karier also was
told by a garage mechanic that the damage to the fifth wheel
resulted from a serious wrenching at a stopped position (id.
39).

As a result of his injury Morris was out of work until
October (J. St. 942). While out Morris made repeated efforts to
speak with Karier about the incidents, but Karier refused to
speak with him until he returned to work (M. Resp. 941). Karier
says that he did not want to make a decision about Morris'
discipline until Morris returned to work and had an opportunity
to explain his actions (J. St. 941). As a result Morris claims
to have been unaware that he was subject to possible disciplinary

action until September 1998, when he tried to return to work (M.

st. 950).



(May 5) arrived (J. St. 426). At the terminal that morning,
Morris performed a pre-inspection of his vehicle, checking the
lights, breaks, blinkers and tires (M. St. 438). Morris had not
been trained to inspect the trailer for body damage, and he says
that because many of the trailers were dinged up, drivers were
required to report only major damage (id. 4938-39). Because the
fifth wheel (the mechanism by which the trailer hooks onto the
tractor) was not locking properly, Morris drove to the safety
lane, where a mechanie took care of the problem (id. 441).

After completing his morning deliveries, Morris was driving
10 miles off of his delivery route when the trailer came apart
from the fifth wheel and separated from the tractor (M. St. 446).
Morris and another Jewel driver attempted to reattach the trailer
and reported the accident (id. 947). Upon arriving at the scene,
Ksepka noticed a large dent in the trailer (J. St. 428-29).
Morris said that he had not inspected the body of the trailer
before his run and had not noticed the damage (id. 429; M. St.
429).

Back at the terminal, Ksepka and Karier met with Morris and
his Union representative and began to question Morris about his
day and why the accident occurred off route (J. St. 4931-34).
Morris explained that he was off route because he had hit traffic
and was on his way to lunch (id. 933). Morris then informed

Karier and Ksepka that he had been injured in the accident, and



action is dismissed.

Milton I. Shadur
Senior United States District Judge

Date: May 29, 2003

18



Morris filed a timely BEOC charge of race discrimination,
and on July 23, 2001 the EEOC issued a right-to-sue notice.
Morris then instituted this action, asserting that Jewel had
unlawfully terminated him because of his race.

Race Discrimination

Where as here a plaintiff presents no evidence--either
direct or circumstantial--of race discrimination that of itself
supports a reasonable inference of unlawful discrimination
(Troupe v. May Dep't Stores Co., 20 F.3d 734, 736-37 (7th Cir.
1994)), he or she must attempt to create a presumption of such

discrimination (Loyd _v. Phillips Bros., Inc., 25 F.3d 518, 522

(7th Cir. 1994)). Hence Morris' claim must be evaluated under
the familiar McDonnell Douglas v. Green, 411 U.S. 792, 802-07
(1973) burden-of-production-shifting line of analysis.

Under that approach Morris must establish* a prima facie
case of race discrimination by demonstrating that (1) he was a
member of the protected class, (2) he was performing his job to
his employer's legitimate expectations, (3) he was subjected to

an adverse employment decision and (4) he was treated less

‘4 At this summary judgment stage, of course, Morris need

not “establish” or “prove” or “show” anything. Instead he must
merely demonstrate the existence of a genuine issue of material
fact to defeat Jewel’s summary judgment motion. Although this
opinion will nonetheless most frequently employ one of those
quoted terms because that is the terminology used by the cited
cases, this Court has consistently imposed that lesser burden on
Morris in testing his claims.



Minute Oruek Fon gna

“S< sue States District Court, Northern District of Illinois
i

Name of Assigned Judge Milton 1. Shadur Sitting Judge if Other
or Magistrate Judge tun Assigned Judge
CASE NUMBER 01 € 2099 DATE $/29/2003
CASE Gerald Morris vs. Jewel Food Stores, Inc.
TITLE

Lin the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nnture
of the motion being presented. ]

MOTION:

DOCKET ENTRY:

«ly a) Filed motion of [ use listing in “Motion” box above.]

(2) Q Bricf in support of motion due

(3) oO Answer briefto motion duc _._ Reply to answer brief due

@ a Ruling/Hearing onset for__—_at

(3) oO Status hearing[held/continued to] [set for/re-set for] on = ____set for at

(6) a Pretrial conference[held/continucd to] [set for/re-set for]on__ set for at

(o) Oo Trial[set for/re-set for] on att

(8) Oo [Bench/Jury trial] [Hearing] held/continuedto sat

(9) im This case is dismissed [with/without] prejudice and without costs{by/agreement/pursuant to}
OrRcp4(m) Olocal Rule 41.1 OFRCP41(a)\(1) 0 FRCP41(a)(2).

do) of (Other docket entry] Enter Memorandum Opinion and Order. For the reasons contained in this

memorandum opinion and order, Jowel’s Rule 56 motion for summary judgment is granted and this action
is dismissed,(42-1)

aly oa [For further detail see order (on reverse side offattached to) the original minute order.)

No notices required, advised in open cour, Docuthent
: Number
No notices required. unite fins
Notices mailed by judge's stuff. MAY 30 2003
Notified counsel by telephone. dye doiated
VY | Docketing to mail notices. ’ q
Y_| Mail AO 450:torm. Sevatidegay nt
Copy to judge/magistrute judge. -_

fate yoda ation
courtroom,

SN deputy's
initials

Date/time received
central Clerk's Office ‘mailings deputy initials



commonalities, however, a review of the conduct of the identified
drivers reveals that they either were not similarly situated to
Morris or were not treated less favorably.

First, Morris looks to Robert Bertolini (“Bertolini”), a
white driver for Jewel who on two consecutive days in January
1998 took his loaded truck home to conduct personal business,
left his truck illegally parked, was off-route and violated break
and lunch policies (M. St. 9470). Bertolini had been previously
warned about such misconduct and received a three-day suspension.

Jewel does not contest that Bertolini's violations were
similar to Morris' May 2 infractions, but it rather asserts that
Bertolini was not similarly situated to Morris because of Morris!
ensuing May 5 conduct’ and his lack of remorse for his actions.
In response, Morris claims that Bertolini was similarly without
remorse, relying on Bertolini's disciplinary write-up that
reflects that he did not fully agree with Jewel's policies. But
that same report goes on to say that “Mr. Bertolini admitted to
being in violation of the company's policies and vowed not to be

in violation again” (J. Ex. 4, Karier Dep. Ex. 6). No evidence

Morris (Ziehlke-Reece Dep. 47).

’ Jewel's disciplinary records for Bertolini do reflect
that he was in at least two avoidable accidents in the early
1990s. But those infractions occurred before 1995, when Karier
became Terminal Manager and hence the disciplinary decisionmaker.
Thus for those incidents Bertolini was net similarly situated to
Morris.

11



demonstrate that he was treated less favorably than similarly
situated employees. In general, plaintiffs must normally show
that such 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 (7th Cir.
2000)). Even if not every one of those factors is a sine qua non
to success on that element, in all events “a plaintiff must show
that he is similarly situated with respect to performance,
qualifications, and conduct” (id. at 617). Morris flunks that
test.

Morris has identified a number of Jewel drivers who had
violated company policies and were not terminated. Like Morris,
from 1995 to 1999 all were under at least the indirect
supervision of Terminal Manager Karier, and it is uncontested
that Karier had the authority to hire and fire (J. St. 41).
Although Morris was an on-call driver and therefore was not
entitled to the 40 hours a week guaranteed to the permanent
employees, there is nothing in the record to suggest that he
would be subject to different disciplinary standards for driver

misconduct as a result of that status®. Despite those

© Although Ziehlke-Reece testified that brand new drivers
could be disciplined more harshly than veteran drivers, that
claim was not made about on-call or part-time employees such as

10



Morris returned to work and met with Karier and Union
representatives on October 26 to discuss the May incidents (J.

St, 942). Morris denied any wrongdoing (id.). He said that it

did not oceur to him to inform management that he was taking a
break on May 2 because he was at his mother's house for only 10
to 15 minutes to drop off medicine for her (M. Reap. 444). As to
May 5, Morris denied that he hit anything at the Glenview store,
explaining that as an experienced driver he knew to back into the
alley rather than attempt the left-hand turn (id, 935-40). He
claimed that the damage had already been done when he left to
make the deliveries (id. 946-47).

In addition to the May 2 infractions, Karier found that on
May 5 Morris had violated Jewel's policies by failing to pre-
inspect his vehicle properly and by failing to report an accident
at the time it occurred (J. St. 948). Based on Morris' rule
violations as well as Karier's belief that Morris was lying in
the face of conclusive evidence against him, Karier placed Morris
on indefinite suspension (id. 949). On November 5 Karier met
with Morris, Terminal Supervisor Rick Simmons and Union
representatives and terminated Morris (id. 9950-51). Documenting
that meeting in a November 17 memorandum, Karier explained that
he had upgraded the indefinite suspension to termination because

Morris' rule violations and his denials of responsibility had

caused Jewel to lose trust in him as a driver (id.).



Before May 1998? Morris' employment record was free from any
serious infractions or discipline (J. St. 93). During that time,
however, Morris felt that he was being harassed by his
supervisors at Jewel (M. St. 421-26). He claims that he was
subjected to supposedly random drug testing with disproportionate
frequency and that other Jewel employees were routinely told to
follow and check up on him (id). Morris filed a grievance
alleging such harassment against one of his supervisors, Dispatch
Manager Lyn Ziehlke-Reece ("“Ziehlke-Reece”), and it was resolved
through Union proceedings (id. 26).

On the afternoon of May 2 Morris was driving for Jewel when
he parked outside his mother's residence in Maywood, Illinois to
drop off her medication (M. st. 427). Morris padlocked the
trailer, but he left the tractor door unlocked because its lock
was broken (id. 936). Although disputed by Jewel, Morris claims
that Supervisor Larry Ksepka (“Ksepka”) had followed him to the
house because he arrived soon after Morris got there (id. 930).
Seeing Ksepka approach, Morris left the house and told Ksepka
that he had stopped for 10 or 15 minutes to drop off medicine for
his mother (id. 932). Ksepka responded that he should finish off

his day and later told him not to worry about the incident (id.

2 Because all operative events bearing on Morris' claim
occurred in 1998, each date referred to later in this opinion
omits the year designation.



that any of them refused to acknowledge their culpability in
violating Jewel's policies. Again that constitutes a failure to
demonstrate that they were similarly situated to him.

But suppose that all of this had not been so--suppose that
Morris had not fallen at the hurdle posed by the requirements of
a prima facie case, as he has. Morris' case would still fail,
for he has not raised the necessary inference that Jewel's reason
for firing Morris was pretextual. As detailed above and in
Karier's November 17 memorandum, Jewel's stated reason for
terminating Morris -- that he violated numerous Jewel policies
and refused to admit his misconduct -- is surely a legitimate
business reason for terminating an employee. To establish that
Jewel's reason is a pretext, Morris must show either that Jewel
was more likely motivated by a discriminatory reason rather than
by its proffered reason or that its proffered reason is unworthy

of credence (McCoy v. WGN Cont']l Broad. Co., 957 F.2d 368, 372

(7th Cir. 1992)).

First, Morris disputes that he committed some of the alleged
infractions and offers explanations for the remaining charges.
But even when, with all properly supported facts being viewed in
the light most favorable to Morris as Rule 56 commands, Morris’
account of the May incidents is credited, he has still failed in
his effort to discredit Jewel’s proffered reason. As Wade v.

Lerner New York, Inc., 243 F.3d 319, 323 (7 Cir. 2001) has

14


of the May incidents, Morris attempts to raise an inference of
Jewel's general untruthfulness with respect to his termination.
Morris notes that Ksepka’s affidavit states that on May 2 he
called and asked Karier to find an address for Morris in Maywood,
but that in his deposition Ksepka testified that he had spoken to
a different Jewel employee. In addition, Morris points out that,
although he had given out his mother’s phone number to Jewel as
his own and he sometimes did live at her home, the Maywood house
was not the address listed in his Jewel personnel file.’

Those minor discrepancies, if buttressed by reasonable pro-
Morris inferences, may perhaps provide sufficient record support
to credit Morris' version of the May 2 incident over Ksepka's for
Rule 56 purposes. But that is not enough to show pretext here.
Even if it were accepted as true that Ksepka followed Morris to
Maywood from the Jewel terminal, it remains undisputed that
Morris violated Jewel policies by leaving his truck unattended
and by taking care of personal business on company time. More
importantly, Morris’ account of the May 2 incident does nothing

to call into question Karier’s honest belief, as expressed in

° Morris also argues that Ksepka’s May 27 memorandum

stating that his investigation of Morris’ infractions was
complete conflicts with Karier’s testimony that he wanted to wait
to speak with Morris until he was back to work before making his
@isciplinary determination. But that charge of inconsistency is
unpersuasive--it is rather that Karier first sought to speak with
Morris directly, instead of automatically accepting Ksepka’s
rendition of Morris’ explanation for the incidents.

16



judgment the burden of establishing the lack of a genuine issue
of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986)). For that purpose this Court must “consider the
evidentiary record in the light most favorable to the non-moving
party...and draw all reasonable inferences in his favor” (Lesch
v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)).
And Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001) has
echoed the teaching of Anderson v. Liberty Lobby Inc., 477 U.S.
242, 248 (1986):

A genuine issue of triable fact exists only if “the

evidence is such that a reasonable jury could return a

verdict for the nonmoving party.”

As with any summary judgment motion, this Court accepts
nonmovant Morris' version of any disputed facts, but only so long
as it is supported by record evidence. What follows in the
Background section is culled from the parties' submissions in
those terms.

Background

Morris began working as an on-call part-time driver of a
semi-tractor trailer truck for Jewel's Transportation Department
in December 1994 (J. St. 411). Throughout his time at Jewel
Morris was a member of the Chicago Truck Drivers, Helpers and
Warehouse Workers Union (“Union”) and was covered by Union's

collective bargaining agreement with Jewel (id.)



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

GERALD MORRIS,

Plaintiff,

bo~

No. 01 ¢ 2099 -
May

Vv.

a
a 0
JEWEL FOOD STORES, INC., } 209%

Defendant.

MEMORANDUM OPINION AND ORDER

Gerald Morris (“Morris”) has charged his former employer
Jewel Food Stores, Inc. (“Jewel”) with employment discrimination
actionable under Title VII of the Civil Rights Act of 1964 (42
U.S.C. §§ 2000e€ to 2000e-17). Jewel has filed a Fed. R. Civ. P.
(*Rule”) 56 motion for summary judgment, and both sides have
complied with this District Court’s LR 56.1.’ For the reasons
contained in this memorandum opinion and order, Jewel’s motion is
granted and this action is dismissed.

Summary Judgment Standards

Familiar Rule 56 principles impose on parties moving for summary

1} LR 56.1 is designed to facilitate the resolution of Rule
56 motions by calling for evidentiary statements and responses to
such statements (in each instance with record citations), thus
highlighting the existence or nonexistence of factual disputes.
This opinion cites to Jewel’s LR 56.1(a) (3) statement as “J. St.

f --” and to Morris' LR 56.1(b) (3) (B) statement of additional
facts as “M. St. § --.” Morris' Response to Jewel's LR 56.1 (a) (3)
statement is cited as “M. Resp. 4 --,” although where a d. St.

assertion is not contradicted a citation to the latter ordinarily
suffices. This opinion employs the same “J.” and ‘M.”
abbreviations in referring to the parties’ exhibits and

Memoranda . aa
1



shows or even implies that Morris ever admitted to any wrongdoing
or acknowledged culpability for his actions (as did Bertolini) .
According to Karier's May 4 e-mail, Karier was prepared to treat
Morris in exactly the same way as Bertolini--resolving his
indefinite suspension to a three-day suspension if he had a
remorseful attitude--and that was so until Karier learned of
Morris' additional infractions on May 5.

Thus Morris has not raised a genuine issue of fact to refute
why such distinguishing circumstances between Morris and
Bertolini did not legitimately occasion Karier's imposition of
different discipline for the two drivers. As such, Morris has
failed to show that he and Bertolini were similarly situated.

Next Morris identifies Frank Qualiter (*OQualiter”) as a
white employee who, according to Morris, was treated more
favorably in light of Qualiter's poor driving record. Over his
ten year employment with Jewel, Qualiter had approximately 27
accidents, several of which were avoidable and unreported, as
well as numerous attendance, inspection and procedural violations
(M. St. 956-63).

While most of Qualiter's accidents and other disciplinary
problems occurred before Karier became Terminal Manager in 1995,
at least three of his accidents occurred during the period of
Karier's supervision (J. Ex. 4, Karier Dep. 13). Morris' R. Mem.

9 claims that Qualiter was given “a slap in the hand” despite his

12



taught, quoting McCoy, 957 F.2d at 373:

In deseribing a plaintiff's burden in this context we

have explained that “the issue of pretext does not

address the correctness or desirability of reasons

offered for employment decisions. Rather, it addresses

the issue of whether the employer honestly believes in

the reasons it offers.”
It therefore does Morris no good to argue that he did not do the
things that he was accused of doing or that his violations were
exaggerated, Rather he must demonstrate that Karier did not
honestly believe in the reasons given for Morris' termination.

And on that score Morris' showing falls woefully short.

As in Wade, ultimate decisionmaker Karier relied in large

part on the reports of Morris' immediate supervisor Ksepka.
Those reports provided Karier with Ksepka’s account of Morris’
May 2 infractions, his description of Morris' fifth wheel
accident on May 5 and the basis for his conclusion that Morris
had been in an earlier unreported accident in Glenview on May 5
that had caused the damage to the fifth wheel. In addition,
Karier obtained corroborating information directly from a Jewel
mechanic regarding the cause of the broken fifth wheel. In
response, Morris has offered no evidence other than his own word
and his experience as a driver. And that showing is plainly
insufficient to raise a reasonable inference that Karier did not
honestly believe in Ksepka‘s presentation of the facts as
bolstered by the mechanic’s opinion.

Next, pointing to slight inconsistencies in Jewel’s account

15