reasonable and justifiable inferences in favor of that party. Debs v. Northeastern Ill.
Univ., 153 F.3d 390, 394 (7th Cir. 1998). A party opposing summary judgment,
however, may not rest upon pleadings and must set forth specific facts showing that
there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc. 477
U.S, 242, 248 (1986). Where the party opposing a motion for summary judgment bears
the burden of proof on an issue, he or she must affirmatively demonstrate, by specific
factual allegations, that there is a genuine issue of material fact requiring trial. Sarsha v.
Sears Roebuck & Co., 3 F.3d 1035, 1041 (7th Cir.1993).
I. DISCUSSION

L Discriminatory Discharge (Count IP

Title VII makes it unlawful for an employer to discriminate against an
employee because of the employee’s race or national origin. 42 U.S.C. § 2000e-2(a)(1).
“A plaintiff can avert summary judgment for the defendant in an employment
discrimination case either by putting in enough evidence, whether direct or
circumstantial, of discriminatory motivation to create a triable issue or by establishing
a prima facie case under the McDonnell Douglas formula." Sheehan v. Daily Racing
Form, Inc., 104 F.3d 940, 940 (7th Cir.1997) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); see also Pasqua v. Metropolitan Life Ins. Co., 101 F.3d 514, 516 (7th
Cir.1996), Under the McDonnell Douglas burden shifting approach, a plaintiff can
establish a prima facie case of race-based discrimination by showing that he: (1) was a

member of a protected class; (2) met his employer’s legitimate employment

? Although the Plaintiffs’ complaint contains but two claims, their unlawful
discharge claim is mistakenly labeled as “Count III.”


severe and pervasive, it is the complained-of acts in their cumulative force that must be
assessed, not any one act standing alone. See, e.g, Cerros v, Steel Tech., Inc., 288 F.3d
1040, 1046 (7th Cir.2002),

In their depositions, Plaintiffs testified at their depositions that the foreman
referred to Caucasian employees by their given-names, but referred to them only as
“you guys.” Webb also alleges that he was called “Satan.” Finally, the Plaintiffs
alleged that they were often publicly berated by the foreman if they were waiting for
materials. Even taken in the light most favorable to the Plaintiffs, the cumulative
impact of Plaintiffs’ allegations fails to rise to a level sufficient to sustain a hostile
environment claim. First, neither “you guys” nor “Satan” is an inherently race-based
term, and Plaintiffs must demonstrate that the harassment was based on a protected
characteristic. Hostetler v. Quality Dining, Inc. 218 F.3d 798, 806 (7th Cir.2000).
Putting that aside, "relatively isolated instances of non-severe misconduct,” like those
complained of by the Plaintiffs, will not support a claim of hostile work environment.
Silk v. City of Chicago, 176 F.3d 390, 398 (7th Cir.1999); see also Ngeunjuntr v.
Metropolitan Life Ins, Co., 146 F.3d 464, 467-68 (7th Cir.1998).

IV. CONCLUSION

The Court finds that the record lacks sufficient evidence to sustain Plaintiffs’
claims for unlawful discharge and for hostile environment discrimination.
Accordingly, Defendant’s Motion for Summary Judgment is GRANTED.

TT IS SO ORDERED.

Dated



materials. Because of the intermittent nature of the work, layoffs of bricklayers and.
laborers are common in the brick and masonry business. In fact, Grandberry and
Webb each were laid off six times by various employers between 1998 and 2000.

On April 24, 2001, the Plaintiffs filed this two-count suit against the Company
alleging that the Company harassed them and ultimately laid them off because they
were African-Americans. The Plaintiffs first allege that the Company subjected them
to a hostile work environment that made them feel degraded, humiliated and
demoralized. For example, the Plaintiffs testified that the Company’s foreman never
addressed the Plaintiffs by their given names, instead referring to them as “you guys,”
while addressing Caucasian co-workers by their given names. Webb further stated in
response to Defendant’s interrogatories that the foreman repeatedly called him “Satan.”
The Plaintiffs also allege that the foreman often publicly berated them when they
waited for materials, In addition to the hostile-work environment claim, Plaintiffs also
allege that they were discharged because of their race.

I. STANDARD OF REVIEW

Summary judgment is appropriate when the record shows that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P, 56(c); Celotex Corp. v. Catrett, 477 USS. 317, 322
(1986). A genuine issue of material fact exists only where the dispute over the facts
might affect the outcome of the lawsuit and there is sufficient evidence to support a
jury verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). In determining whether a genuine issue of material fact exists, courts must

construe all facts in the light most favorable to the non-moving party and draw all

3



expectations; (3) suffered a materially adverse employment action; and (4) others
outside of the protected class were treated more favorably. Johnson v. Nordstrom, Inc.,
260 F.3d 727, 732 (7th Cir. 2001); Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d
1025, 1032 (7th Cir.1998). Once a plaintiff establishes a prima facie case of
discrimination, the burden shifts to the defendant to articulate some legitimate,
nondiscriminatory reason for its action. Johnson 260 F.3d at 731; Gonzalez 133 F.3d at
1032. If the defendant comes forward with a non-discriminatory reason for its
employment action, the plaintiff must then produce sufficient evidence to demonstrate
that the proffered reason was pretextual. Johnson 260 F.3d at 732; Gonzalez 133 F.3d at
1032.

Plaintiffs allege that they were laid off because they were African-American.
But the Plaintiffs failed to submit a brief in opposition to the Defendant’s Motion for
Summary Judgment. By failing to controvert the Company’s statement of facts that
the Plaintiffs essentially admit the evidence in the record is insufficient support an
inference that the Company’s motivation releasing them was discriminatory.
Assuming for purposes of this motion that the Plaintiffs are able to satisfy the first
three elements of the McDonnell-Douglas burden-shifting test, they cannot satisfy the
fourth element. The record contains no evidence that others outside the protected class
were treated more favorably. To the contrary, the record instead reveals that on the
same day that the Plaintiffs were laid off, a Caucasian employee was also laid off.
Moreover, over the course of the next two months, seven other Caucasian or Hispanic
employees were laid off. Accordingly, Plaintiffs have failed to establish that other

similarly situated employees were treated more favorably.


«_ Minute Order Form (06/97)

>

~< United States District Court, Northern District of Illinois
slagenahie | Willan). ribber | Sree
CASE NUMBER 01 € 2901 DATE 07/09/2003
CASE Blanks et al v. DH Johnson Construction Co.
TITLE

[ln the following box (a) indicate the party filing the motion, eg. plaintiff, defendant, 3rd party plaintiff, and (b) stave briefly the

nature of the motion being presented.]

(a1)

MOTION:
Defendant’s Motion for Summary Judgment (doc. # 28)
DOCKET ENTRY:
() Oo Filed motion of { use listing in “Motion” box above.]
(2) oO Brief in support of motion due
Q) a Answer brief to motion due___. Reply to answer briefdue__—_.
4 Oo Ruling/Hearingon__set for at
(5) ia) Status hearing [held/continued to] [set for/re-set for]on__—sset for___——_—at
© a Pretrial conference [held/continued to] [set for/re-setfor]on___setfor___—sat__.
4) a Trial [set for/reset for]on____—at
(8) a [Bench/Jury trial] Hearing] held/continuedto_ at
(9) Qa This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to]
CUFRCP4(m) OGeneral Rule21 OFRCP41(a)(1) OFRCP4i(a)(2).
(10) = @ [Other docket entry] . Enter Memorandum Opinion and Order. For the attached reasons, Defendant's Motion for

Summary Judgment is GRANTED, All other pending motions are terminated as moot.

Qo [For further detail see order on the reverse side of the original minute order.]

No notices required, advised in open court.
No notices required.

number of notices
Notices mailed by judge's staff.

Notified counsel by leone WL 21 7068

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Y | Docketing to mail notices. _
LVI Mall AO 490 form ‘ ing deputy initials
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Even if the Plaintiffs’ had met their initial burden of establishing a prima facie
case of discrimination, the Company offered a legitimate, nondiscriminatory reason for
discharging the Plaintiffs: a shortage of a materials forced them to reduce their work
force. The Company produced unrebutted evidence that such lay offs are common
within the industry. There is no evidence in the record to suggest that this reason is
pretextual. To demonstrate pretext, a plaintiff must show more than the employer's
decision was incorrect, “the plaintiff must also show the employer lied about its
proffered explanation.” Johnson, 260 F.3d at 732. The Plaintiffs admit in their
depositions that they had no evidence to refute that the Company had experienced a
lack of materials. The fact that the Company laid off nine additional employees in the
two months following its release of the Plaintiffs further demonstrates that its
proffered reason was not pretextual.

Because Plaintiffs can demonstrate neither that similarly situated employees
were treated more favorably nor that the Company’s proffered reason for its action
was pretextual, their claim that they were discharged because of their race must fail.

2 Disparate Treatment (Count I)

Plaintiffs also allege that they were harassed and intimidated because of their
race. A hostile work environment claim is comprised of a series of separate acts that
collectively constitute one ‘unlawful employment practice. National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 115-16. In attempting to assess whether a hostile
environment claim satisfies the necessary elements that the complained-of
circumstances were both subjectively and objectively offensive, that the harassment

was based on plaintiff's membership in a protected class and that the conduct was


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKETED
CHRISTOPHER BLANKS, CALVIN) JuL 11 2003
GRANDBERRY, and STACY WEBB, )

Plantiffs, , No. 01 C 2901
v. The Honorable William J. Hibbler
DH JOHNSON CONSTRUCTION '
Defendant.

MEMORANDUM OPINION AND ORDER

Christopher Blanks, Calvin Grandberry and Stacy Webb sued DH Johnson
Construction Company (the Company), alleging that it discriminated against them
because of their race in violation of Title VIL of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000-2. The Company moves for summary judgment. For the following reasons,
the Company’s Motion for Summary Judgment is GRANTED.

I, FACTUAL BACKGROUND

In this case, the Defendant’s Motion for Summary Judgment was accompanied

by a Local Rule 56.1(a)(3) Statement. (Doc. # 29). Although the Plaintiffs had until

December 30, 2002, to respond to Defendant’s Motion, they chose not to do so.' Local

' On December 19, 2002, Plaintiffs’ attorney filed a motion to withdraw, although
Plaintiffs’ response to Defendant’s Motion for Summary Judgment was due in 11 days.
Counsel failed to notice the motion for hearing as required by Local Rule 5.3. Counsel’s
motion indicated that she would be out of town from December 21, 2002 until January
15, 2003. On January 28, 2003, Defendant’s presented a noticed motion for a hearing on
the motion to withdraw. Plaintiffs’ counsel failed to appear. Because Plaintiffs’ counsel
never pursued her motion to withdraw (or even noticed it for hearing for that matter) the
motion to withdraw is denied.



Rule 56.1's enforcement provision provides that when a responding party's statement
fails to controvert the facts as set forth in the moving party's statement in the manner
dictated by the rule, those facts shall be deemed admitted for purposes of the motion.
LR. 56.1(b)(3)(B); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003); Central States
Pension Fund v. Bomar Nat., Inc., 253 F.3d 1011, 1017 (7th Cir. 2001). As a result, all
facts in Defendant's Local Rule 56.1(a)(3) Statement are deemed admitted.

On September 12, 2000, the Company hired Stacy Webb and Calvin
Grandberry, both African-American males as apprentice bricklayers. Three days later,
it hired Christopher Blanks, also an African-American male, as a laborer. The
Company performs brick and masonry work and assigned the Plaintiffs a crew of
bricklayers and laborers who worked at its Storage U.S.A. job site for the Company.

According to Jeffrey Johnson, the Company’s vice president, in early October
2000 it experienced a shortage of materials at the Storage U.S.A. job site and there was
insufficient work to retain all of the bricklayers and laborers. The Company decided
to layoff the least efficient and least senior bricklayers and laborers. On October 6,
2000, the Company laid off Webb, Grandberry, and Blanks, just over three weeks after
it had hired them. Additionally the Company laid off Giovanni Zerillo, a Caucasian
apprentice bricklayer, on October 6. Over the course of the next two months, the
Company laid off an additional nine employees, all of whom were either bricklayers or
laborers: two (2) African American employees, four (4) Caucasian employees, and
three (3) Hispanic employees.

According to the Company, brick and masonry work is seasonal and also

dependent on the schedule set by the owner of the site, the customer, and the supply of