properly reserved in its disciplinary policy) it deems any
employee’s breach to be sufficiently egregious. For example, two
other employees terminated for such breaches have been Bob
Fluegge and Eric Sarbaugh (both non-Hispanic) (MC. St. 9126-31).

In sum, Lopez has failed to create a genuine issue of
material fact that can keep him in court as to one prong of his
prima facie case--that similarly situated non-Hispanics or non-~
Mexicans were treated more favorably than he was treated. And
that failure as to a vital component of his claim calls for the
entry of summary judgment in Micro Center’s favor (Peele, 288
F.3d at 331).

With that said, one final (and related) point should be
made. This Court expresses no view, nor would it be appropriate
to do so, as to whether the sanction imposed for Lopez'
infraction might perhaps be perceived by some observers as more
severe than the infraction justified--that judgment is for

employers and not courts to make (Stewart v. Henderson, 207 F.3d

374, 378 (7 Cir. 2000)). What controls instead is that, even
with the benefit of favorable inferences, Lopez has not generated
a genuine factual issue as to whether his discharge was motivated
by discrimination--either by showing that Micro Center’s
justification is a pretext for discrimination or otherwise

(Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147

(2000); Millbrook v. IBP, Inc., 280 F.3d 1169, 1174 (7 Cir.

19


After Rome admitted responsibility, all three employees received
counseling for their actions, but none was terminated (id. §498-
100).

Under the Radue criteria, the situation involving those

three employees did not sufficiently parallel Lopez! violation
for them to be considered as comparable. Importantly, the policy
violation involved was essentially de minimis in nature: the
markdown taken was initiated just two days earlier than the
policy specified (on a Friday, while the price reduction was due
to take effect on Sunday) and the amount of the markdown actually
taken was entirely correct in terms of the already-scheduled
Sunday reduction, so that Micro Center really suffered no
financial loss (MC. St. 9992-93). So the trio was not doing
violence to the new markdown policy, as contrasted with Lopez'
having followed the old policy (with its much larger permitted
markdowns). Moreover, the decisionmakers in the two instances
were Gifferent: It was managers Mandel and Centeno who decided
to give the three employees warnings (rather than to terminate
them), without input from anyone at Micro Center's home office
(Myers, Miller or anyone else) (id. §§201-02).

Ava Vilchez ("Vilchez”)

Lopez also mentions Vilchez (Hispanic) as an employee who
violated the markdown policy but was treated more favorably (L.

St. 919). Cashier Vilchez rang up a purchase for another

13


computer memory card that Lopez’ co-worker Gerald Minzey was
attempting to buy (id. 9945, 48-49, 52-54, 57-60).

Micro Center's Employee Handbook prescribes a discretionary
progressive discipline system (MC. Ex. 6 at 36). But the
Standards of Conduct section of the Handbook (which Lopez
acknowledges receiving) warns employees that they may be subject
to immediate discharge without moving through the progressive
discipline system if they commit one of any number of “very
serious” violations, including “willful violation of any company
rule or policy” and “unauthorized discounting of merchandise or
service” (MC. St. §{9-10, 13).

Micro Center’s actual markdown policy, as it relates to
employees rather than customers (who benefit from a progressive
weekly discounting of returned or clearance merchandise), is at
issue in this case. If an employee wants to purchase any such
merchandise from the store, the purchasing employee must request
that an employee who works in the department that sells that
particular item mark down the item physically and specify the
discount on a yellow tag placed on the item (MC. St. §924,33).
Each discount amount is determined by a complicated process and
must be approved by a supervisor or manager (id. 946). Managers
(but not sales associates) have discretion to approve additional
markdowns in order to reduce the amount of unsold merchandise

(id. §§26-28).


2002)).
Conclusion

What this opinion's painstaking review has clearly disclosed
is that the circumstances that Lopez has proffered in an effort
to prove his claim do not begin to raise a genuine issue of
material fact as to whether Micro Center’s actions were linked to
discrimination on account of Lopez' race or national origin or
both. Lopez’ claim ultimately fails, not because Micro Center
was indisputably correct in its decision but because he has not
offered sufficient evidence to suggest that it was impermissibly
discriminatory in its decision.

Micro Center is therefore entitled to a judgment as a matter
of law. Its Rule 56 motion is granted, and this action is

dismissed.

7, OE
Milton I. Shadur
Senior United States District Judge

Date: November 14, 2003

20


50% (both before and after the new markdown policy was instituted
to replace the previously permitted 50% discount for markdowns),
but they were not terminated for their actions (id.).

But that information--classic hearsay--is barred from

consideration under Rule 56(e) (Russell v. Acme-Evans Co., 51 F.3d

64, 68 (7th Cir. 1995)). And even were that not the case, the
sporadic data in Minzey's poll would require more than reasonable
inferences to generate a genuine factual issue as to whether any
of those employees bore the required similarity to Lopez'
situation.
Summary

This Court of course recognizes the possible danger of
applying the similarly situated requirement as though it meant
identically situated, so that a defendant could preclude every
potential plaintiff from establishing that element by organizing
its workplace so that no single employee is the similarly-
situated twin of any other (see Ercegovich v. Goodyear Tire &
Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998); Cook v. CSX
Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993)). But the other
side of that coin is that the employer must be given room to make
honest business judgments that different kinds of infractions of
its rules and policies are to be treated with different degrees
of severity.

At the core of his argument, Lopez appears to be asserting

17


It is however plain that the conventional McDonnell Douglas
formulation does not fit the situation here, where the “meeting
employer expectations” component of the required prima facie case
is lacking because of Lopez! violation of Micro Center's markdown
policy.’ Instead, as is true in every case in which an employee
in a protected class has sustained an adverse employment action
because of some misstep, the issue comes down to whether other
similarly situated employees not in that class were treated more

favorably (Flores v. Preferred Tech. Group, 182 F.3d 512, 515 (7%

Cir. 1999); Volovsek, 344 F.3d at 692).

Micro Center tries to duck that issue by asserting (1) that

indirect or circumstantial evidence alone (Desert Palace, 124 S.
Ct. at 2155; Dare v. Wal-Mart Stores, Inc., 267 F.Supp.2d 987,
991-93(D. Minn. 2003)). But even post-Desert Palace, Volovsek,
344 F.3d at 692 has continued both to draw a distinction between
the indirect and direct methods of proof and to endorse burden-
shifting as a reliable method of arranging the presentation of
evidence in an employment discrimination case. Because both
parties here have proceeded under McDonnell Douglas, and because
Lopez’ circumstantial evidence is inadequate to raise a genuine
issue of material fact under any line of analysis, this opinion
will follow the litigants' lead in employing the McDonnell
Douglas method.

7 Micro Center contends that Lopez admitted he violated the
markdown policy both in his written statement at App. A (MC. St.
59) and when he assertedly told Myers and White that he “knows
he made a mistake by not following store policy” (id. 458).
Although Lopez of course admits writing the statement, he denies
making the comment to Myers and White and generally denies having
admitted that he violated the policy (L. Resp. 4958-59). But the
real issue is not whether Lopez admitted a policy violation (an
issue as to which, with the benefit of reasonable inferences, he
might perhaps be said to have created a factual issue), but
rather whether he actually violated the markdown policy. And on
that score there is really no question that he did.

9


47). Mandel noted that the yellow tag had been initialed by “AL”
(id. 949). After questioning Minzey about the yellow tag, Mandel
allowed him to purchase the item for the correct amount--20%
rather than nearly 50% off of the retail price (id. 451). Mandel
then began to explore how Lopez and the markdown were connected.
Between January 23, 2002 and Lopez’ dismissal about 10 days
later, Lopez participated in at least two meetings--one with
Mandel and another Manager Joe Centeno ("“Centeno”), and another
with Micro Center’s Director of Loss Prevention Skip Myers
(“Myers”) and Chicago Operations Manager Jim White (“White”) (Mc.
St. 4952, 56). Over the course of those meetings Lopez told the
investigators that he understood that the old policy of allowing
employees to discount clearance and returned items for other
employees at 50% had been discontinued, that he was familiar with
the parameters of the new policy and that he had made a mistake
by not following store policy (id. 4§57-58). Lopez memorialized
some of those acknowledgments in a written statement declaring
that he had made a “mistake” by marking down the item (id. 9959) .4
Based on those conversations, on Lopez’ written statement

and on further investigation, Micro Center terminated Lopez’

‘ Lopez’ handwritten statement is difficult to read--and to

understand. Each party seems to believe that the statement
supports its or his position (MC. St. 959, 61; L. Resp. 954, 57-
58). In the interest of clarity, this Court has transcribed the
statement verbatim (an undertaking that could have easily been
handled by either party) and has attached the transcription as
Appendix A to this opinion.


In August 2001 Micro Center’s home office directed the
Chicago store to cease allowing employees to mark down by 50% any
returned and clearance merchandise that was then being purchased
by other employees (MC. St. §31). Under the revised markdown
policy, employees can mark down such returned or clearance
merchandise only to the same price at which the merchandise would
be available to customers (id. 432). Alternatively, employees
can purchase such returned or clearance merchandise at the
employee discount rate that applies to non-clearance
merchandise--5% over cost (id. 439). Micro Center informed its
employees of the changed markdown policy by discussing it at
several store meetings and by attaching new “Employee Purchase
Guidelines” to each employee’s paycheck (id. 4935, 37).

It is against that set of policies that the sequence of
events giving rise to Lopez’ discharge must be examined. It
appears that Gerald Minzey (“Minzey”) brought Lopez an item that
Minzey wished to purchase, with a yellow tag fully completed
except for the price (L. St. 437). Lopez then marked down the
item to a price of $25.96, about 48% off of the original price
(id. 439; MC. St. 9948-49). When Minzey filled out his employee
purchase form and brought it to Retail Sales Manager Adam Mandel
(“Mandel”) for approval, Mandel noticed that the purchase price
was “extremely abnormal” (MC. St. 946-47). Mandel asked Minzey

to bring the actual item (with the yellow tag on it) to him (id.


that because Micro Center decided not to terminate some employees
who violated its policy in other ways, yet terminated Lopez for
what it perceived to be his more serious violation of the
markdown policy, it has treated him “less favorably” than those
other employees whom he characterizes as similarly situated. But
that contention is self-defeating, for Micro Center has
permissibly reserved to itself the power to discipline its
employees along a spectrum as warranted by the circumstances of

each situation (MC. St. §§99-100; Anderson v. Stauffer Chem. Co.,

965 F.2d 397, 403 (7th Cir. 1992)). Lopez’ own subjective belief
that the conduct of some other employees was more serious than
his own (and thus merited equally severe treatment) cannot

prevail over the system of discretionary discipline that Micro

Center has legitimately established (Mitchell v. Toledo Hosp.,
964 F.2d 577, 583 (6th Cir. 1992); Cook , 988 F.2d at 509, 512).
Obviously Micro Center cannot implement that system to serve
as a thin veil for impermissible discrimination. And so Lopez'
subjective beliefs might parallel a reasonable inference of
discrimination if only Hispanic or Mexican employees were being
terminated (or if they were being disproportionately terminated)
for like violations (Flores, 182 F.3d at 516-17; Sattar v.
Motorola, Inc., 138 F.3d 1164, 1170 (7th Cir. 1998)). But the
evidence is to the contrary: Micro Center terminates employees

for violating the markdown policy when (using the discretion

18



Application of the Rule 56 Standards

Lopez relies solely on the indirect method of proof
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). That approach typically requires an employee first to
create a prima facie case of discrimination by demonstrating that
(1) he is a member of a protected class® (2) who was meeting his
employer's legitimate expectations yet still (3) suffered an
adverse employment action (4) while other similarly situated

employees were treated more favorably (Volovsek v. Wis. Dep't of

Agric., Trade & Consumer Prot., 344 F.3d 680, 692 (7 Cir.

2003)). If employee Lopez succeeds in doing so, the burden of
production shifts to Micro Center to articulate a
nondiscriminatory legitimate business justification for its
conduct (id.). If Micro Center does so in turn, the burden of
production shifts back to Lopez (who always has the burden of
persuasion, though) to show that discrimination was the real
motivation for his termination, most commonly by showing that
Micro Center’s stated reason is a pretext for discrimination

(id.) .§

5 “Protected class” may not be the right term, given the

existence of other litigation that recognizes concepts of
“reverse discrimination.” But because the term “protected class”
continues to be widely used throughout the jurisprudence, this
opinion adheres to that conventional usage.

* It would seem that the McDonnell Douglas formulation may

have limited future utility, given the Supreme Court’s recent
decision that a Title VII mixed motive case may be proved through

8



Minotd Order Form (06/91)

ited States District Court, Northern District of Illinois

Milton I. Shadur Silting Judge if Other
° than Assigned Judge
CASE NUMBER 02 C 5004 DATE 11/14/2003
CASE Armando Lopez vs. Micro Center Sales Corp.
TITLE
[In the following box (a) indicate the party filing the motion, c.g., plaintifY, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. |
DOCKET ENTRY:
(1) a Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
G) a Answer brief to motion due Reply to answer brief due
(4) im} Ruling/Hearing on set for at .
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at.
(6) Q Pretrial conference[held/continued to] (set for/re-set for] on setfor at
(7) o Trial[set for/re-set for] on at.
(8) im [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) (Local Rule 4t.1 OO FRCP41(a)(1) OO FRCP41(a)(2)

(lo) «oi [Other docket entry] Enter Memorandum Opinion and Order. Micro Center’s motion for summary
judgment is granted and this action is dismissed. (28-1)

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

No notices required, advised in open court. Document

Number

7

No notices required ect
winder ef nutiees

NOV 1 7 2903

Notices mailed by judge’s staff.

Notified counsel by telephone

oY | Docketing to mail notices

oY | Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
SN deputy’s
initials

Date/time received in
central Clerk's Office

niin depaty initads



Co., 307 F.3d 535, 546 (7th Cir. 2002)). In the disparate
discipline context, another employee will typically be considered
comparable to a plaintiff if both employees have the same
disciplinary supervisor (in other words, if the decision to
discipline or not to discipline was made by the same person), if
the other employee was subject to the same standards and if the
other employee engaged in the same conduct (or at least engaged
in similar conduct without significant differentiating or

mitigating factors) (Radue v. Kimberly-Clark Corp., 219 F.3d 612,

617-18 (7th Cir. 2000)).

Examination of each of Lopez’ potential comparables in those
terms reveals that none of them is sufficiently similarly
situated to Lopez to be helpful to him in creating the required
genuine issue of fact. Those other employees will be looked at
seriatim. Because none of them is Mexican in origin (so that all
are outside of that protected class), each will simply be
identified as Hispanic or non-Hispanic (to indicate whether a
second class difference also exists).

Gerald Minzey

Most obvious among the possibilities raised by Lopez is
Minzey (non-Hispanic), the other participant in the incident that
led to Lopez‘ dismissal. Lopez claims that because Minzey was
not discharged (or even issued a warning, although one was

drafted regarding the situation (MC. St. 467), Minzey is a

121


it does not inquire about the race or national origin of any of
its employees and (2) that although it was aware Lopez was
Hispanic from his own self-identification, the individuals who
made the decision to terminate him were not aware he was Mexican.
From those assertions Micro Center seeks an inference that it
could not have discriminated against Lopez on account of his
national origin (MC. St. 9132-33, 143; Monley v. Q Int'l
Courier, Inc., 128 F.Supp.2a 1155, 1160 (N.D. Ill. 2001)). Lopez
counters that over the course of his employment the actions of
various Micro Center employees indicated an awareness that he was
of Mexican descent, information that could readily have been
conveyed to the decisionmakers in this case (L. St. 4973-74).
Moreover, Lopez suggests that his resume clearly indicated his
national origin (id. 475). In light of the need to draw all
reasonable inferences in Lopez' favor, this opinion proceeds from
the premise that he could potentially maintain a case of either
race or national origin discrimination.

Other Micro Center employees--non-Hispanic or not of Mexican
origin--are similarly situated to Lopez if they are “directly

comparable...in all material respects” (Peele v. Country Mut.

Ins. Co., 288 F.3d 319, 330 (7th Cir. 2002)). Lopez bears the
burden of showing that the other employees whom he identifies as

his “comparables” are in fact sufficiently similarly situated to

warrant such a comparison (Peters v. Renaissance Hotel Qperating

10



employment (MC. St. §§60-61). Minzey was not terminated for his
participation in the event that led to Lopez’ discharge, and
although Micro Center drafted a warning for Minzey regarding his
involvement in the incident, the warning was never issued (id.
467).

Myers and Micro Center’s Director of Human Resources Angela
Miller, both from Micro Center’s home office, made the ultimate
decision to terminate Lopez (MC. St. 960; MC. Resp. 948). Before
arriving at that decision, Miller and Myers gathered information
both about the Lopez situation and about previous actions taken
in the Chicago store (including at least one firing) for
violations of the markdown policy, obtaining that information
from several managers and supervisors (Mandel, Centeno, White and
General Manager Craig Stiles) (“Stiles”), as well as from Chicago
store Human Resources Director Layda Cordoso-Duris (“Cordoso-
Duris”) (MC. St. 4952, 56, 60, 62; L. Resp. 460; MC. Resp. 446).

After his termination Lopez filed a timely charge of
discrimination with EEOC, based on race or national origin or
both, claiming that he was terminated for violating the markdown
policy while non-Hispanics and non-Mexicans who violated the
policy were not terminated (MC. St. 4). After EEOC issued a
right to sue letter, Lopez brought this Title VII action (id.

q5).



Appendix A

Statement of: Armando Lopez
One day at the begining of the month of January an asociat Gerald
ask me to mark a yellow tag product #965343 priced original at
49.99, By mastake and cause I was Bussy with other customers at
the time I marked at 25.95 buy mastake. I then lefted at the
coonter an look away don’t know if the same associat or other
moow it to the bin or other but this hapen not on the lst it
hapen on in arrount the midle of the Month. Not the date of it

was mark by 1/1/01 but arround the midle of month

I agree I made a mastake but the situation in wish I was woorking
i was hacktic, bussy. I allways do many thing at the same time

and that could be the situation

I’m sorry but it have many things to do about to the day to

remember evry detail.


claims were to be viewed as straightforward in the legal sense (a
somewhat doubtful premise, given the changes in the employment

discrimination landscape foreshadowed by Desert Palace, Inc. v.

Costa, 124 §.Ct. 2148 (2003)), it is still necessary to clear

those waters in terms of the facts to which the legal principles
apply. Those facts are of course viewed in the light most
favorable to nonmovant Lopez-- but within the limitations created
by the extent of his compliance (or noncompliance) with the
strictures of LR 56.2
Facts

Beginning in 1997 Lopez was a sales associate in Micro
Center’s Chicago retail computer store (MC. St. §§2-3). In
February 2002 Micro Center terminated him for assertedly

violating its markdown policy by improperly discounting a

required) to fend for itself in sifting through a dense record to
piece together a litigant's argument for the litigant. As is
often repeated, judges are not compelled to root through a record
like a pig hunting for truffles (United States v. Dunkel, 927
F.2d 955, 956 (7th Cir. 1991) (per curiam)).

> Because LR 56.1 is intended to transform the record

presented to this Court into a manageable series of clearly
admitted or disputed facts, it is imperative that each party's
response indicate whether it admits or disputes each numbered
paragraph of the adversary's statement, supporting any disputes
with citations to the record (LR 56.1(b) (3) (A)). Any responses
that mistakenly echo the second sentence of Rule 8(b)--which
applies only to responsive pleadings--by indicating that a party
does not have sufficient information to admit or deny a fact, or
any responses that fail to cite to any record evidence to support
a dispute, are simply ineffective. All facts that are thus
improperly controverted are deemed admitted (McGuire v. United
Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998)).

3


employee that gave the purchaser a greater discount than had
previously been authorized by management (MC. St. 9106-07, 110).
But during the investigation Vilchez told Micro Center that the
purchasing employee had handed her a box that she believed was
for a printer, not a projector (the item actually being
purchased), so that her calculation was based on that
misunderstanding (id. §§108-09) .°

Vilchez is not a comparable employee for two significant
reasons (even apart from the fact that she was a cashier and not
a sales associate). For one thing, the decision not to terminate
her was made by Stiles and Cardoso-Duris without consulting Myers
or Miller (MC. St. §114). But most importantly, Vilchez’ conduct
is simply not similar enough to Lopez’ to warrant comparison.
Vilchez understandably believed she was marking down a product
different from the one actually being purchased. Had the product
been what Vilchez thought it was, her markdown percentage would
have been correct. In contrast, Lopez knew full well the
identity of the product he was marking down, but he did so at a
no longer permissible percentage. Any of those differences would

alone disqualify Vilchez as an appropriate comparable--together

® While Vilchez was not discharged, the employee who had
attempted to purchase the item was (MC. St. 4104). Hector Zavala
(of Mexican origin) admitted that he knew he had been authorized
to get a much smaller discount (just half as much) on the item
but that he did not correct Vilchez as to her mistake at the
register, nor did he correct the error later when another
employee pointed it out to him (id. 4106-07, 112-13).

14



Isaac Johnson (“Johnson”

Lopez lastly mentions Johnson (African-American) as another
employee who was not terminated for his violation of the markdown
policy (L. St. §16). Johnson sold an item to a customer (who
happened to be a former employee) for a penny without first
getting manager approval (MC. Resp. 416). Although Johnson
should have sought such approval before selling the item, the
markdown itself was actually authorized by Micro Center policy
because it was in furtherance of customer service (id.).

Thus the contrast between Johnson's operation within the
parameters of store policy and Lopez! attempted markdown, which
was both unauthorized and inconsistent with the new policy,
deprives the two situations of sufficient similarity for
appropriate comparison. And as with other employees, the
decision not to discharge Johnson was made by White and Stiles
without input from Miller, Myers or anyone else at the Micro
Center home office--a factor that “alone probably precludes a
showing of similarity” (Radue, 219 F.3d at 618).

Other Employees

After Lopez’ termination, Minzey conducted his own personal
investigation into Micro Center's treatment of other employees
who violated the markdown policy (L. St. §50). His informal
questionnaire revealed that numerous employees of various races

and national origins claimed to have marked down merchandise at

16


judgment is granted and this action is dismissed.

Summary Judgment Standard

To succeed on a summary judgment motion, the movant bears
the burden of establishing there is no genuine issue of material
fact (Celotex Corp. v. Catrett, (477 U.S. 317, 322-23 (1986)).

In making that determination, a court considers the evidentiary
record in the light most favorable to the nonmovant and draws all

reasonable inferences in its favor (Lesch v. Crown Cork & Seal

Co., 282 F.3d 467, 471 (7th Cir. 2002)). But the nonmovant “must
produce more than a scintilla of evidence to support his
position” that a genuine issue of material fact exists (Pugh v.
City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and “must set
forth specific facts that demonstrate a genuine issue of triable
fact” (id.). Summary judgment is warranted only if a reasonable
jury could not return a verdict for the nonmovant (Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Both parties suggest in their supporting memoranda that
Lopez’ case is quite straightforward. That might fairly be said
of Micro Center's presentation, but Lopez' response has

unfortunately muddied the waters a good deal.*? Even if Lopez'

2 In that respect, a material part of the difficulty in

distilling the facts comes from Lopez’ consistent failure to
provide an accurate guide through the evidence. Thus Lopez'
counsel repeatedly refers to incorrect or non-existent paragraphs
of his LR 56.1 statement (see, e.g., L. Mem. 5) and often directs
this Court to supposed evidence that has not in fact been
provided (id.). No court has the resources (nor should it be

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS eunymecv
EASTERN DIVISION DOCKED
ARMANDO A. LOPEZ, Nov 17 2003
Plaintiff,
v. No. 02 C 5004

MICRO CENTER SALES CORPORATION,
etc.,

Defendant.

MEMORANDUM OPINION AND ORDER

Armando Lopez (“Lopez”) has sued his former employer Micro
Center Sales Corporation (“Micro Center”), asserting that Micro
Center discriminated against him in violation of Title VII of the
Civil Rights Act of 1964 ("Title VII,” 42 U.S.C. §§2000e) when it
terminated his employment because of his race or national origin
or both. Micro Center has moved for summary judgment pursuant to
Fed. R. Civ. P. (“Rule”) 56, and both sides have (at least
nominally) complied with this District Court's LR 56.1.* Because
Lopez has not raised a genuine issue of material fact suggesting
that his termination was a function of his status either as

Hispanic or as Mexican, Micro Center’s motion for summary

+ LR 56.1 requires parties to submit evidentiary statements

and responses to such statements to highlight which facts are
disputed and which facts are agreed upon. This opinion cites to
Micro Center’s LR 56.1 statement as “MC. St. 4--,” to Lopez’ LR
56.1 statement as “L. St. §--” and to each party’s response as
“MC. Resp. Q--" or “L. Resp. §--.” Where an assertion in either
party's LR 56.1 statement is undisputed by the opponent, the
opinion includes only a citation to the original statement. “L.”
and “MC.” designa-tions are also used in referring to all other
documents submitted by the parties.


similarly situated employee who was treated more favorably.

Even though Minzey too was a sales associate, and even
though the decision not to discipline him was also made by Miller
and Myers (L. St. §10), he is still not similarly situated to
Lopez, because at the time of the investigation preceding Lopez’
termination Micro Center had no evidence that he had engaged in
conduct similar to Lopez'. Unlike Lopez, who admitted committing
the acts that gave rise to his dismissal (however innocently or
misguidedly he may have admitted or committed them), Minzey
strenuously denied that he had done anything wrong in the
situation and repeated several times that he had followed correct
procedure (MC. Resp. §10)--an assertion uncontradicted in the
record. With no evidence that Minzey himself engaged in conduct
at odds with the markdown policy, he cannot be considered as
similarly situated to Lopez for disciplinary purposes.

Raul Hernandez (“Hernandez”), Jeremy Rome (“Rome”)
and Bryan Walston (“Walston”)

Lopez said in his deposition testimony that he believes
three other employees violated the markdown policy but were
treated more favorably than he was (MC, St. 487). In October
2001 three Micro Center employees--Hernandez (Hispanic), Rome
(non-Hispanic) and Walston (non-Hispanic) --were involved in a
markdown violation incident (id. §§g8-90; L. St. 413).
Hernandez generated a quote for a product that Walston intended

to purchase, and Rome executed the markdown (MC. St. 4§94-97).

12



they are of course fatal to Lopez' argument in that respect.
Stiles and Mandel

Lopez next points to Stiles and Mandel (both non-Hispanic) .
But Stiles and Mandel are not comparable to Lopez, both because
they were not in “materially parallel positions” (Radue, 219 F.3d
at 618) and because their conduct was substantially different
from his.

First, Lopez was a sales associate while Stiles and Mandel
were managers (MC. St. 416-17). Those positions are materially
different in terms of the discretion afforded each position.
Significantly, sales associates are not authorized to deviate
from the markdown guidelines, while managers are given discretion
to determine when additional markdowns are appropriate (MC. St.
4927-28) --a discretion that is obviously needed to deal with
special situations that might arise from time to time.

Furthermore, while the violations by Stiles, Mandel and
Lopez all involved the improper marking down of merchandise, both
Stiles and Mandel were cited for abusing their discretion by
authorizing inappropriate markdowns to customers as part of a
promotional sales contest to enhance the sales of service plans.
That violation is entirely different in several ways from the
conduct that led to Lopez’ termination (MC. St. 4118), and Micro

Center was not required to respond with like discipline.

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