inconclusive. However, Salter terminated Plump for exercising “poor judgment” on May 10th and
11th by, among other things, permitting a large quantity of alcohol to be consumed at a company-
sponsored dinner; failing to make arrangements to ensure the safety of his subordinates following
their consumption of excessive alcohol; being the senior Kraft employee at an “after celebration” at
a bar where the group was asked to leave; encouraging, through his presence, the continued
consumption of alcohol at a second bar; becoming “over-served” during the evening while out with
Kraft employees; being so “over-served” that the valet attendant refused to give him his car; giving
his keys to a subordinate, Klitzman, who was also intoxicated, and using his position of authority
to have her drive his car even though she did not want to drive the car (which Salter believed was
coercive); asking Klitzman to pull over so that he could drive despite being “over-served”; and
leaving Klitzman a message to come and speak with him on Monday, May 13, 2002 (given that he
had never done so before).
ANALYSIS

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to ajudgment as a matter of law.” FED.R. CIV.
P. 56(c). The party opposing summary judgment may not rest upon the pleadings, but “must set forth
specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). There is no genuine issue for trial unless there is “sufficient evidence favoring
the non-moving party for a jury to return a verdict for that party.” Jd The party moving for
summary judgment bears the initial burden of demonstrating the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).


protections of Title VII “are not limited to members of historically discriminated-against groups.”
Mills v. Health Care Serv. Corp., 171 F.3d 450, 454 (7th Cir. 1999). The Seventh Circuit has held
that, instead of showing the first element of McDonnell Douglas, a reverse discrimination plaintiff
must demonstrate, as part of his prima facie case, that there are “background circumstances that
demonstrate that a particular employer has reason or inclination to discriminate invidiously against
whites [or men] or evidence that there is something ‘fishy’ about the facts at hand.” Phelan vy, City
of Chicago, 347 F.3d 679, 684 (7th Cir. 2003) (internal citations omitted). As outlined above, Plump
has failed to put forward any evidence ofa similarly-situated woman who was treated more favorably
than he was. Further, Plump does not even address the additional evidence required of a male
plaintiff bringing a gender discrimination claim. In light of both these deficiencies, Plump’s gender

discrimination claim is dismissed.
Section 1981 Claim

Section 1981 gives all persons within the jurisdiction of the United States the same right to
make and enforce contracts as is enjoyed by white citizens. 42 U.S.C. §1981; Partee v. Metropolitan
Sch. Dist. of Washington Township, 954 F.2d 454, 456 (7th Cir. 1992). Because the analysis under
Section 1981 mirrors that of Title VII, Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 806 (7th
Cir. 1999), Plump’s Section 1981 racial discrimination claim also fails for the reasons explained

above.


and if the defendant succeeds, the burden shifts back to the plaintiff to show that the defendant’s
reasons were pretextual. Rhodes v, Ill. Dep’t of Transp., 359 F.3d 498, 508 (7th Cir. 2004).

Because the court finds that Plump’s failure to satisfy the fourth McDonnell Douglas
factor — that other similarly-situated individuals were treated more favorably — is fatal to Plump’s
claim, the court need not address the other factors. In order to survive summary judgment, Plump
must show that he has been treated more harshly than another employee who is not in the protected
class and is similarly situated “with respect to performance, qualifications, and conduct.” Radue,
219 F.3d at 618. “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.” Jd. at 617-18.

Here, Plump does not put forward any coherent argument with respect to any other similarly-
situated employees who were treated more favorably than he. Perhaps in an attempt to meet the
fourth McDonnell Douglas factor, Plump argues that Klitzman and the “Recipient” somehow
received better treatment than he did. Specifically, Plump alleges that Kraft investigated his alleged
misconduct yet failed to investigate an alleged “illicit love affair” between Klitzman and the
Recipient. Putting aside the fact that these allegations of an “illicit love affair” are unsupported by
any evidence, this argument does nothing to show that someone similarly situated to Plump (but
female and/or non-African-American) was treated more favorably. Engaging in an “Gllicit love
affair” is not conduct similar to that of Plump’s during and after the Gibson’s dinner. Further, even
if the court were to assume that Plump intended to point to Klitzman as a potential comparator, there

is nothing in the record that supports the notion that Klitzman was comparable to Plump. It is



Racial Discrimination Under Title VII

Under Title VII, a plaintiff may prove his employment discrimination case either by direct
or indirect evidence. Direct evidence “essentially requires an admission by the decision-maker that
his actions were based on the prohibited animus,” Venturelli v. ARC Community Servs., Inc., 350
F.3d 592, 599 (7th Cir. 2003), and is “rarely found.” Radue v. Kimberly-Clark Corp., 219 F.3d 612,
616 (7th Cir. 2000). Despite his assertion otherwise, Plump does not offer any direct evidence.
Plump argues that the fact that Salter told him that his “poor judgment” was “getting in a cab with
Mindy Klitzman” and “wanting to drive home with Ms. Klitzman in the same car” is direct evidence
of his racial and gender discrimination claim. As a preliminary matter, the court may not even
consider these facts as Plump failed to provide them in his Local Rule 56.1(b)(3)(B) Statement of
Additional Facts. However, even if the court could properly consider them, they are not “smoking
gun remarks” indicating that Kraft fired Plump because of his race (or gender). Robin v, Espo Eng’g
Corp., 200 F.3d 1081, 1088 (7th Cir. 2000) (noting that direct evidence of discrimination takes the
form of “I fired you because of your age or disability”).

When a plaintiff lacks direct evidence, he may utilize the burden-shifting method of proof
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell Douglas
framework requires the plaintiff to establish a prima facie case of discrimination by demonstrating
that he: (1) belongs to a protected class, (2) performed his job to his employer’s legitimate
expectations, (3) suffered an adverse employment action despite performing satisfactorily, and (4)
received less favorable treatment than similarly-situated employees outside the protected class.
Hildebrandt v. Ill. Dep't of Nat'l Res., 347 F.3d 1014, 1030 (7th Cir. 2003). Ifthe plaintiff succeeds,

the burden shifts to the defendant to provide legitimate, non-discriminatory reasons for its conduct;


decision to terminate was correct or desirable. Wade v. Lerner New York, Inc., 243 F.3d 319, 323
(7th Cir. 2001). Plump offers no reason that Kraft should have concluded that the two individuals
were lying or mistaken. Finally, Plump’s assertion that the mode of communication between himself
and Klitzman was different from that asserted by Kraft (while not denying that the request was made)
is immaterial.

Here, Kraft has presented undisputed evidence that it thoroughly investigated the incidents
surrounding the Gibson’s dinner by interviewing numerous employees, including Plump, Klitzman
and Norris, and reviewing emails and telephone transcripts. Based on the information gained
through this investigation, Kraft determined that Plump exercised “poor judgment” and terminated
him because of it. Plump has not pointed to any specific facts that cast Kraft’s explanation “in
doubt,” id., or that Kraft did not “honestly believe the reasons it gave for terminating him.” Pitasi
v. Gartner Group, Inc., 184 F.3d 709, 718 (7th Cir. 1999). Therefore, Plump cannot avoid summary
judgment on his Title VII racial discrimination claim for the additional reason that he failed to put
forward any evidence that Kraft’s reason for firing him was pretextual.

Gender Discrimination Under Title VIL

Under McDonnell Douglas,’ a plaintiff may establish a prima facie case of gender
discrimination by showing that he: (1) belongs to a protected class; (2) performed his job
satisfactorily; (3) suffered an adverse employment action; and (4) was treated differently than
similarly situated employees outside of his class. Hughes v. Brown, 20 F.3d 745, 746 (7th Cir.

1994). The fact that Plump is a man does not doom his gender discrimination claim because the

“ As explained above with respect to Plump’s racial discrimination claim, Plump does not
put forward any direct evidence of gender discrimination.

8


Minute Order Forms (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

\)
Oe

Joan B. Gottschall

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 02 C7754 DATE 12/17/2004
CASE Daniel Plump vs. Kraft Foods North America, Inc.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qi) a Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
@G) a Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearing on set for at
(5) im Status hearing[held/continued to] {set for/re-set for] on set for at
(6) ao Pretrial conference[held/continued to] [set for/re-set for] on _ set for at.
(ea) Qa Trial{set for/re-set for] on at
(8) Oo (Bench/Jury trial} [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs{by/agreement/pursuant to]
COFRCP4(m) CiLocal Rule 41.1 COFRCP4i(a)(1) CO FRCP41(a)(2).
ao) «=@f {Other docket entry} | Enter Memorandum Opinion and Order. Defendant Kraft’s motion for
summary judgment [45-1] is granted. Case terminated.
ql) a (For further detail see order (on reverse side off/attached to) the original minute order.]

No notices required, advised in open court.

No notices required. ber of |
umber of notices

DEC 21 2004

date docketed

JKM

docketing deputy initials

Notices mailed by judge’s staff.

Notified counsel by telephone,

X_ | Docketing to mail notices.

X | Mail AO 450 form.

Copy to judge/magistrate judge.

AM (TY

courtroom 65353
deputy’s ~
initials

,, Date/time received in
central Clerk's Office

malting deputy initials



CONCLUSION

Kraft’s motion for summary judgment is granted.

DATED: December 17, 2004

ENTER: WA
LL

J AN COTTSCHALL
United States District Judge

10


undisputed that Plump was Klitzman’s supervisor and was the highest ranking Kraft employee at the
Gibson’s dinner and “after celebration.” Plump, who was a Salary Grade 14 employee and made
approximately $121,560 a year (plus stock options), is not similarly situated to Klitzman, who is not
a supervisor, is a Salary Grade 5 employee and made approximately $41,685 a year. Because there
is no evidence in the record of any other employee who engaged in a series of behaviors that,
cumulatively, amounted to poor judgment on the part of a Kraft supervisor and was treated more
favorably than Plump, Plump has failed to satisfy McDonnell Dougias’s fourth factor.

Finally, even if Plump could meet the four factors of McDonnell Douglas, he cannot show
that Kraft’s reason for firing him — his “poor judgment”— was pretext for a discriminatory motive.
To demonstrate pretext, Plump must provide sufficient evidence that Kraft was “motivated by a
discriminatory reason” or that Kraft’s proffered explanation “is unworthy of credence.” Zaccagnini
y. Chas. Levy Circulating Co., 338 F.3d 672, 676 (7th Cir. 2003). Kraft maintains that it terminated
Plump for his “poor judgment” as evidenced by a series of events occuring throughout the evening
of May 11 and morning of May 12, 2002. Plump attempts to argue that the “poor judgment” reason
was pretextual because he disputes Kraft’s assertion that: (1) the Gibson’s bill exceeded the allotted
amount; (2) he was not asked to leave the bar by a bouncer; (3) the valet (and not Plump) gave the
car keys to Klitzman; and (4) Plump’s May 13, 2002 message to Klitzman was sent by email, not
handwritten note. As an initial matter, whether or not the Gibson’s bill was or was not over the
allotted amount is immaterial as that fact was not relied upon by Kraft in its decision to terminate
Plump. With respect to whether or not Plump was asked to leave the second bar, Kraft was informed
by two other individuals at the bar that Plump and/or the group had been asked to leave. The issue

here is whether or not Kraft “honestly believe[d] the reasons it offer[ed],” not whether or not the


release the car. At this time, a police officer intervened and agreed only to allow Klitzman to drive
the car. After Klitzman had driven the car approximately one block, Plump asked her to pull over
because he was not comfortable with her driving the car. While he asserted that he intended that
Norris (who had also been drinking) would drive the rest of the way back to Northlake, Plump
admitted that he may have told Norris and Klitzman that he was going to drive the rest of the way
to Northlake. At that point, however, the same police officer came up and told the group that they
needed to find other means to get home. Plump, Norris and Klitzman then took a taxi back to
Northlake. Klitzman maintained that during that taxi ride Plump inappropriately touched her on her
buttocks and breasts.

On the Monday following the Gibson’s dinner, Klitzman’s sister brought Klitzman’s sexual
harassment claim to the attention of Kwame Salter, Kraft’s Vice-President of Human Resources for
Sales and Customer Service. Salter directed Chad Simmons, Associate Director of Human
Resources, to investigate the sexual harassment allegation. After meeting and interviewing Plump,
Klitzman and various other individuals, and reviewing documentary evidence (including emails
between Klitzman and her sister and transcripts of voicemails between Klitzman and an unnamed
“Recipient”), Simmons informed Salter that, based on his investigation, he believed that Plump had
sexually harassed Klitzman and had used inappropriate judgment throughout the evening of May 10
and early morning of May 11, 2002.

Ultimately, Salter found Klitzman’s sexual harassment complaint to be uncorroborated and

> Following the Gibson’s dinner, Klitzman communicated with an unidentified male Kraft
employee (with whom she was romantically involved) regarding the events of May 10-11, 2002.
Magistrate Judge Brown ordered that the identity of this man be protected and that he be referred
to as the “Recipient.”



ranking Kraft employee at the event, Plump was responsible for overseeing and paying for the
dinner, which was considered a company event. On Friday, May 10, 2002, Plump drove his car to
the dinner at Gibson’s and parked it with a valet attendant down the street from the restaurant.
Plump and the other Kraft employees consumed alcoho] while at Gibson’s, where 40% of
the total bill was spent on 20 bottles of wine and 65 individual alcoholic drinks. Of the twenty-four
attendees, at least one employee was not drinking alcohol as she was pregnant at the time. After the
dinner concluded at Gibson’s, Plump and some other Kraft employees left Gibson’s and went out
to bars for an “after celebration.” The first bar the group went to was the Hunt Club, which is within
walking distance of Gibson’s. While at the Hunt Club, Plump and other Kraft employees continued
to drink alcohol and also danced on the second-floor dance floor. Plump did not pay attention to
what the other group members were drinking or whether any of them were intoxicated. At some
point, Plump and the group left the Hunt Club? and went to a second bar (which Plump could not
identify). At the second bar, Plump remembered that he had a coffee, but could not remember if it
contained alcohol or not. Plump admitted that he was “not sober” when he left the second bar.
After leaving the second bar, Plump and two members of his team — Michele Norris and
Mindy Klitzman — walked back to Gibson’s to retrieve his car so that Plump could drive Norris and
Klitzman back to their cars in Northlake. At Gibson’s, however, the valet attendant refused to bring
Plump his car, saying that in his judgment, Plump had had too much to drink. Plump informed the
attendant that he did not intend on leaving his car in Chicago and that Norris could drive his car

instead. The attendant disagreed and Plump, “being less than happy,” continued to press him to

*According to Kraft, a bouncer from the Hunt Club asked the group to leave. Plump,
however, asserts that he has no knowledge that any Hunt Club employee asked any member of
the Kraft group to leave the bar.


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DANIEL PLUMP,

Plaintiff, Case No. 02 C 7754

)

v. DOCKETED
KRAFT FOODS NORTH AMERICA, INC., )
)
)

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Daniel Plump filed this lawsuit against his former employer, Kraft Foods Global,
Inc.' (“Kraft”), alleging that his employment was terminated because of his race and gender in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seg., and
42 U.S.C. § 1981 (‘Section 1981”). For the reasons that follow, Kraft’s motion for summary
judgment is granted.

BACKGROUND

In 2002, Plump, an African-American man who had a twenty-two year career at Kraft, held
the managerial position of Regional Customer Service Manager II in Northlake, Illinois. Plump
managed customer service for one of Kraft’s major customers, the Kroger account, within Kraft’s
Central Area Customer Service region. During the Spring of 2002, Plump’s Kroger team won a
performance incentive, the prize for which was $100 per employee to be spent in whatever way the
team selected. Plump’s twenty-four person team elected to spend the money at Gibson’s, a Chicago

restaurant located approximately 18 miles from Northlake. As manager of the team and the highest

' During the pendency of this case, Kraft Foods North America, Inc, changed its name to
“Kraft Foods Global, Inc.”

Judge Joan B. Gottschall DEC 2 9 2004