Request 4 to the extent they are limited to employees in the district in which Banks was

employed since January 1, 2001.

Banks’ Receipt of a Final Written Warning: Interrogatory 4 and Request 18

Banks seeks to compel responses to his Interrogatory 4 and Request 18, which
purportedly relate to his final written warning for violating Cracker Barrel’s Asset Protection
Policy. Interrogatory 4 aks for the identity of “each and every employee of Defendant who has
been found to have violated the Asset Protection Policy and/or Defendant’s securities policies,
including but not limited to, Asset Protection Policy Topic #11 and Operations Manual Section
IV page 14" throughout Swartling’s entire region since January 1, 1997. Similarly, Request 18
seeks “[a]ny and all documents relating to all employees disciplined and/or terminated for a
violation of the Asset Protection Policy or Defendant’s securities policies.” Once again,
Swartling was not the decisionmaker regarding Banks’ final written warning, and nothing makes
information on disciplines and terminations of all employees throughout Swartling’s entire
region at all relevant to this action. Similarly, there is ‘no justification for information going back
to January 1, 1997. The cutoff date of January 1, 2001 is more reasonable. Finally, the request
for information as to “each and every employee” found to have violated Cracker Barrel’s Asset
Protection or security policies is overbroad because Banks and non-management employees are
decidedly not similarly situated. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1042 (7th Cir.
1993) (supervisors are not similarly situated to subordinates). Accordingly, the motion to compel
discovery is granted as to Interrogatory 4 and Request 18 to the extent that they are limited to
employees holding the position of and with the duties of an associate or general manager and

working in the district in which Banks was employed since January 1, 2001.


employees who had different supervisors than Banks did and who engaged in different
misconduct than Banks did are not relevant to this action because they expressly concern
individuals not similarly situated to Banks. In addition, there is no justification information
going back to January 1, 1997. The cutoff date of January 1, 2001 is once again more
reasonable. Accordingly, the motion to compel discovery is granted as to employee counseling
reports issued by Frank or Oskam as requested in Requests 12 and 13 to the extent that they are
limited to counseling reports issued to managers for violations of Cracker Barrel’s Asset
Protection and security policies and acts of insubordination in Banks’s district since J anuary 1,
2001.
Documents Relating to the Performance and Conduct of Frank and Swartling: Request 5

In Request 5, Banks seeks “[a]ny and all documents relating to the performance or
conduct of Bryan Frank and/or David Swartling” on the rationale that both were decisionmakers
as to his adverse employment actions. As stated before, however, Swartling was not the
decisionmaker. Accordingly, the motion to compel discovery is granted as to Request 5 to the
extent that it is limited to Frank.

Request for Deposition Dates and Cracker Barrel’s Purported “Delay”

Regardless of which party is responsible for.the delay in taking these depositions, Cracker
Barrel has expressed its willingness to work with Banks in scheduling these depositions as soon
as schedules and travel plans can be coordinated. As such, I do not order Cracker Barrel to
provide dates for these depositions. I trust that the parties can work out a mutually convenient

schedule within a reasonable time period.


Carte Entertainment, Inc., No. 02 C 0492, 2002 U.S. Dist. LEXIS 18981, at *14-15 (N.D. Ill.
Oct. 7, 2002).

Banks’ Request for Promotion to the SAM Program: Interrogatory 2 and Request 4

Banks seeks to compel responses to his Interrogatory 2 and Request 4, which purportedly
relate to his denial of admission into Cracker Barrel’s Senior Associate Manager (“SAM”)
Program. Interrogatory 2 requests the identity of and chronological timeline of each individual’s
request to the SAM program and Cracker Barrel’s corresponding acceptance or denial going back
to January 1, 1997. Because he alleged that David Swartling was a decisionmaker, Banks
requested the aforementioned information for all relevant employees in the geographic area under
Swartling. Request 4 seeks “[a]ny and all documents relating to performance and conduct,
including but not limited to, performance reviews and counseling reports, for those employees
named in Interrogatory No. 2 who were accepted gr.denied into” the SAM program. The motion
seeks the three performance reviews preceding the sary into the SAM program of the employees
names in Interrogatory 2, as well as any counseling reports or other documentation relating to
their conduct during the time period of the three reviews.

There are several problems with these requests. First, district manager Bryan Frank, not
Swartling, was the decisionmaker with respect to Bank’s request for admission into the SAM
program. The request for all information on the SAM program from all employees in Swartling’s
region is thereby overbroad. Moreover, there is no justification for information on the SAM
program going back to January 1, 1997. Cracker Barrel’s cutoff date of January 1, 2001 is more

reasonable. Accordingly, the motion to compel discovery is granted as to Interrogatory 2 and


Banks’ Termination: Interrogatory 5 and Request 19

Banks seeks to compel responses to his Interrogatory 5 and Request 19, which
purportedly relate to his termination. Interrogatory 5 asks for the identity of “each and every
employee . . . who has been terminated for a violation, of Defendant’s Rules of Conduct and/or
insubordination, including but not limited to, conduct rules #1, #4, and #14” throughout
Swartling’s entire region since January 1, 1997. Similarly, Request 19 seeks “[a]ny and all
documents relating to the performance or conduct of any employees disciplined or terminated for
violation of Defendant’s Rules of Conduct or insubordination.” Once again, Swartling was not
the decisionmaker regarding Banks’ termination, and nothing makes the requests for information
throughout Swartling’s entire region for terminations of all employees for any violation of
Cracker Barrel’s Rules of Conduct and/or insubordination at all relevant to this action. Similarly,
there is no justification for information going back to January 1, 1997. The cutoff date of
January 1, 2001 is more reasonable. Furthermore, the request for information as to “each and
every employee” terminated for violating the Rules of Conduct or for insubordination is
overbroad because he and non-management employees are decidedly not similarly situated.
Sarsha, 3 F.3d at 1042. Finally, the request for information on several different types of
violations is overbroad. Only violations of the rules prohibiting insubordination — the same
misconduct in which Banks allegedly engaged — relate to his claim. Plair, 105 F.3d at 349 n. 3
(employees not similarly situated to plaintiff because they “did not engage in all of the same
misconduct [he] did”); Connolly, at *14-15 (two bartenders not similarly situated because
“complaints about their conduct” differed — “Hill’s work quality and bossiness are not

comparable to Connolly’s rudeness to customers and employees.”) Accordingly, the motion to

5,


For the aforementioned reasons, Banks’ Corrected Motion to Compel Discovery [7-1] is
GRANTED as to Interrogatories 2, 4, and 5 and Requests 4,5, 18, and 19 subject to the
limitations discussed above, DENIED as to his request for deposition dates, and GRANTED in
part and DENIED in part as to Requests 12 and 13 subject to the limitations discussed above.

ENTER:

Nor BS Sel

ames B. Zagel
United $tates District Kose)

DATE: ( ed y KX 5


"Minute Order Form (06/97)

United States District Court, Northern District of Hlinois

Name of Assigned Judge James B. Zagel Sieting Judge if Other

or Magistrate Judge than Assigned Judge

CASE NUMBER 01 C795 : DATE 4/8/2003
CASE BANKS vs. CBOCS, WEST, INC.
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendam, 3rd party plaintitf, and (b) state brieNly the nature

of the motion being presented.]

(1)

granted/denied in part.

| [For further detail see order attached to the original minute order.]

MOTION:

DOCKET ENTRY:

(ly Q Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) o Answer brief to motion due___. Reply to answer briefdue___

(4) oO Ruling/Hearingon___set for__at

(5) oO 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_____ssetfor_ at

(7) a 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]
OFRcP4(m) OC Local Rule 41.1 OFRCP41(a)(1} CO FRCP41(a)(2).

qo) [Other docket entry] Motion (18-1) to compel is denied as moot. Motion (21-1) to compel is

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

Notices maited by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mall AO 450 form. 1unoo Lajyisia sin

Copy to judge/magistrate judge.

date mailed notice
courtroom

pw deputy’s
initials

ug Si

oy

Date/time'received in :
central Clerk's Office svatng depaty nits

Document
Number



compel discovery is granted as to Interrogatory 5 and Request 19 to the extent that they are
limited to terminations of managers in Banks’ district for insubordinate conduct since January 1,
2001.
Personnel Files of Oskam and Cherepski: Requests 12 and 13

Banks seeks “[a]ny and all documents relating the personnel file[s]” of Hans Oskam and
Bob Cherepski on the ground that Oskam was “one of the decision-makers,” that Cherepski “was
involved in the events leading up to” his termination, and that both were “similarly situated” to
him. Banks is mistaken. Neither Oskam nor Cherepski was a decisionmaker with respect to any
purportedly adverse action relating to his retaliation claim. Further, neither Oskam nor
Cherepski is similarly situated to Banks in that, among other reasons, neither engaged in the
same misconduct as he did. Finally, the fact that Cherepski may have witnessed an “event”
preceding Banks’ misconduct is entirely irrelevant for purposes of compelling the production of
his personnel documents. Accordingly, the motion to compel discovery is denied as to his
request in Requests 12 and 13 for the personnel files. of Hans Oskam and Bob Cherepski to the
extent that those requests seek information not compelled by any other granted interrogatory or
request.

Employee Counseling Reports Issued by Frank or Oskam: Requests 12 and 13

Banks seeks “[a]ny and all documents relati ng to all Employee Counseling Reports issued
by” Bryan Frank and Hans Oskam in Requests 12.and 13 on the ground that the “counseling
reports were an integral part of the adverse action taken against [him and thus] may shed light on

[his] claims that the bases for issuing counseling reports were a pretext for unlawful

discrimination.” This request is overbroad. Counseling reports issued to non-management


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TIMOTHY BANKS,
Plaintiff,
v. £ No. 01 C 0795

Judge James B. Zagel
CBOCS, WEST, INC., d/b/a Cracker Barrel

Old Country Store, Dor 4 FE TEB

Defendant. APR 16 2003

MEMORANDUM OPINION AND ORDER

Timothy Banks filed his Complaint on February 5, 2001, alleging that CBOCS, West, Inc.
(“Cracker Barrel”) had treated him unlawfully during his employment by violating the Family
and Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”). The parties
conducted extensive written discovery and scheduled six depositions for May and June 2002.
The parties did not conduct oral discovery at that time, however, in light of discipline Cracker
Barrel issued to Banks in the middle of 2002 that the parties believed could broaden the scope of
written and oral discovery of this matter. Several months later, Cracker Barrel terminated Banks’
employment for insubordinate conduct. He filed his Amended Complaint on September 19,
2002, alleging that, in addition to violating the FMLA and ADA, Cracker Barrel denied him a
promotion, issued him a final written warning, and terminated in retaliation for filing his
Complaint, thereby violating Title VII of the Civil Rights Act of 1964 (“Title VI”). Having
previously concluded written discovery based on Banks’ FMLA and ADA claims, the parties
have throughout the past several months conducted written discovery based only on his

retaliation claims — centered on events occurring in April, June, and August 2002. Banks has


now moved to compel Cracker Barrel to comply with his written discovery requests regarding
comparative information and information relating to the conduct of the decisionmakers in the
events constituting his Title VII cause of action as well as to timely produce Cracker Barrel’s

witnesses for depositions.

To establish a prima facie case under Title VII, Banks must show, inter alia, that he was
treated less favorably than similarly situated employees who did not engage in statutorily
protected activity. See, e.g., Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002).
Whether he was treated less favorably than so-called “non-complaining employees” has nothing
to do with his retaliation case unless those employees were similarly situated to him. The
Seventh Circuit has recognized that “[t]he similarly situated requirement is very important, for
without it a plaintiff would only have to point to one. . . employee treated better than he... .
Such a minimal showing would be meaningless, especially with respect to large corporations”
like Cracker Barrel. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 619 (7th Cir. 2000). To
demonstrate that another employee is “similarly situated,” Banks must show that the employee
“is directly comparable to [him] in all material respects.” Patterson v. Avery Dennison Corp.,
281 F.3d 676, 680 (7th Cir. 2002). The employee must generally: (1) “hold the same or
equivalent” position or title and perform the same or similar duties, Hoffman-Dombrowski v.
Arlington Intern. Racecourse, Inc., 254 F.3d 644, 651 (7th Cir. 2001); Young v. Ameritech, Inc.,
No. 01 C 2987, 2002 U.S. Dist. LEXIS 14313, at *8 (N.D. Ill. Aug. 5, 2002), (2) have the same
superior, Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 349 n. 3 (7th Cir. 1997); Randue, 219

F.3d at 618; and (3) commit the same misconduct, Plair, 105 F.3d at 349 n. 3; Connolly v. Ala