organizational skills and salesmanship in making promotion decisions. According to Boomsma,
managers must set a proper example for sales staff by following company policies and procedures.

BMW sales representatives are required to arrive at work, including mandatory Saturday
morning sales meetings, on time. Ifa sales representative is going to be late, he or she must call
amanager so that BMW can make arrangements to ensure the sales floor is properly staffed. When
amanager determines that a sales representative is developing a pattern of arriving to work late, the
manager verbally counsels the sales representative about tardiness. Managers issue written
warnings for chronic tardiness.

Haywood was late for work and mandatory meetings at BMW. Haywood did not call a
manager every time he was late. Haywood was counseled numerous times regarding his tardincss.
On August 4, 2001, Haywood received a written warning for excessive tardiness after he arrived
late for a mandatory Saturday morning sales meeting. Haywood often asks to leave the sales floor
carly when sales are slow.

In September 2001, Boomsma promoted Acccttura to sales manager. According to
Boomsma, he promoted Accettura becausc he possessed many of the qualities BMW looks for in
a sales manager. Accettura has a bachelor’s degrce from the University of Ilawaii, has
approximately 23 years of management experience and has supervised up to 300 employees. As
asalcs representative, Accettura demonstrated leadership skills and dedication to the dealership by
working extended hours. Accettura is a good-finisher, detail-oriented, even tempered and adheres
to company policies and procedures. Accettura does not have any problems with punctuality.

According to Haywood, he was subjected to racially offensive comments on five or six
occasions from July 20, 1999 to the present. Specifically, coworker Korey Bollnow said, “you
know how Black folks do it,” “you know how brothers do it” and “nappy head.” On another
occasion, Boomsma told Haywood to “get [his] black ass out of [his] office.”

On May 9, 2002, Haywood and a customer saw a photograph of an African-American child

in an aluminum container with the words “Ghetto Pool” on the computer screen of coworker



to this court to scour the record in search of factual or legal support for [his] claims.” Colburn v.
Trustees. of Indiana Univ., 973 F.2d 581, 593 (7th Cir.1992). Under these circumstances, BMW's
summary judgment motion must be granted on Haywood’s bonus, benefits and training claims.

Alternatively, Haywood’s denial of training claim is barred because it is not “like or
reasonably related” to the allegations contained in his three discrimination charges. Cheek v.
Western and Southern Life Ins. Co., 31 F.3d 497, 503 (7th Cir. 1996). Haywood’s allegations of
harassment and discrimination regarding promotional opportunities and bonuses are insufficient to
encompass his claim of discriminatory training. See Johnson y, Indopco, Inc,, 834 F.Supp. 1039,
1042 (N.D. Ill. 1993)(claim for discriminatory denial of additional training outside the scope of
charge alleging discriminatory failure to promote), Indeed, Haywood does not contend additional
training was needed to qualify him for a promotion. Accordingly, Haywood’s denial of training
claim fails as a matter of law.
I. Harassment Claim

"Title VII of the Civil Rights Act of 1964 prohibits an employcr from engaging in racial
harassment that creates a hostile or offensive working environment.” Rodgers v. Western-Southern
Life Ins. Co., 12 F.3d 668, 674 (7th Cir.1993). For a racially hostile work environment claim “to
be actionable, it must be sufficiently severe or pervasive so as (o alter the conditions of the victim's
employment and to create an abusive working atmosphere.” Drake v. Minnesota Mining & Mfg.
Co., 134 F.3d 878, 885 (7th Cir. 1998), quoting McKenzie v. Illinois Dep't of Transp., 92 F.3d473,
479 (7th Cir .1996). Whether harassment is sufficiently severe or pervasive depends on the totality
of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humilialing, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance." Harris v. Forklift Systems, Inc.,
510 U.S. 17, 23 (1993). The work environment cannot be described as hostile for purposes of Title
Vil unless a reasonable person would find it offensive and Haywood actually perceived itas hostile.
Hostetler v. Quality Dining, Ine., 218 F.3d 798, 807 (7th Cir.2000). These standards “are

sufficiently demanding to ensure that Title VII docs not become a ‘general civility code.’” Faragher

9


(7th Cir. 1993), In order to prove a case of discrimination under Title VII or § 1981, Haywood may
ulilize either the direct or indirect method of proof. Pafford v. Herman, 148 F.3d 658, 665 (7th Cir.
1998).

A. Direct Method

Under the direct method, Haywood may offer either direct or circumstantial evidence.
Direct evidence is evidence that, if believed by the trier of fact, would prove the fact in question
“without reliance on inference or presumption.” Walker v. Glickman, 241 F.3d 884, 888 (7th Cir.
2001), quoting Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999). In other words, direct
evidence “essentially requires an admission by the decision-maker that his actions were based upon
the prohibited animus.” Xadue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2002).
Haywood fails to offer any evidence thata BMW manager admitted taking an adverse action against
him because of his race.

Absent direct evidence, a plaintiff may still proceed under the direct method by presenting
circumstantial evidence of illegal discrimination. Rogers v. City of Chicago, 320 V'.3d 748, 754 (7th
Cir. 2003). ‘fhere are three types of circumstantial evidence under the direct approach: (1)
“suspicious timing, ambiguous statements oral or written, behavior toward or comments directed
at other employees in the protected group, and other bits and pieces from which an inference of
discriminatory intent might be drawn”; (2) a showing that similarly situated employees outside the
protected class received systematically better treatment; and (3) evidence that the plaintiff was
qualified, but was passed over in favor ofa person outside of the protected class, and the employer’s
stated reason for the decision is “unworthy of belief, a mere pretext for discrimination.” Troupe
y. May Dept. Stores Co,, 20 F.3d 734, 736 (7th Cir. 1994), The third type of circumstantial
evidence is “substantially the same” as the evidence required under the indirect burden-shifting
method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Huffv. VARCO,
Ine., 122 F.3d 374, 380 (7th Cir. 1997). Haywood relies exclusively on the third type of

circumstantial evidence to establish his claims of race discrimination,



Michelle Dural. The next day, Haywood reported the photograph to Acccttura. The parties dispute
whether Accettura took any action in response to Haywood’s complaint.
DISCUSSION
L Standard of Review

On cross-motions for summary judgment, each movant must individually satisfy the
requirements of Rule 56. Equal Employment Opportunity Commission v. Admiral Maintenance
Service, L.P., No. 97 C 2034, 1998 WL 102748, at * 6 (N.D. Ill. Feb. 26, 1998). Summary
judgment is appropriate when the moving papers and affidavits show there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once a moving party has met its burden, the
non-moving party must go beyond the pleadings and set forth specific facts showing there is a
genuine issue for trial. Fed. R. Civ. P. 56 (c); Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir.
1999), The court considers the record as a whole and draws all reasonable inferences in the light
most favorable to the party opposing the motion. Bay v. Cassens Transport Co. , 212 F.3d 969, 972
(7th Cir. 2000). A genuine issue of material fact exists when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986), ‘The summary judgment standard is applied with special scrutiny (o employment
discrimination cases because the outcome may depend on determinations of credibility and intent.
Michas y. Health Cost Controls of HMinois, 209 ¥.3d 687, 692 (7" Cir. 2000).
IL Discrimination Claims

Title VII prohibits an employer from discharging or otherwise discriminating against an
employee in the terms, conditions or privileges of employment based on the employce’s race. 42
U.S.C. § 2000e-2(a). Section 1981 similarly prohibits employment discrimination based on race.
Hardin v. 8.C. Johnson & Son, Inc., 167 F.3d 340, 346 (7th Cir. 1999), citing Gonzalez v. Ingersoll
Milling Machine Co., 133 F.3d 1025, 1034 (7th Cir, 1998). “While Section 1981 and Title VII
differ in the types of discrimination they proscribe, the methods of proof and elements of the case

are essentially identical.” Von Zukerstein v. Argonne National Laboratory, 984 F.2d 1467, 1472

5



company policies and procedures, including punctuality. Absent evidence that Haywood was as
qualified as Dokmo or Accettura in experience, leadership, adherence to dealership policics and
procedures, organizational skills and salesmanship, Haywood cannot establish a prima facie case
of race discrimination based on BMW’s promotion decisions.
2. Disciplinary Action

Nor can [aywood establish a prima facie case of race discrimination based on BMW’s
written warnings for tardiness. In order to establish BMW singled him out for discipline because
of his race, Haywood must show other similarly situated employees outside his protected class were
treated more favorably. Flores v. Preferred Technical Group, 182 F.3d 512, 515 (7th Cir. 1999).
Although Haywood claims other tardy employees were not counseled, he fails to demonstrate he
is similarly situated to these unnamed cmployces.

In order to establish he is similarly situated, Haywood must prove that the other 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, 219 F.3d at 617-18. Haywood fails to present
evidence that the supervisors who issued him written warmings had an opportunity to write up other
employees with the same record for tardiness and failed to do so. Absent evidence that he was
similarly situated to the unnamed employees, Haywood cannot establish a prima facie case of race
discrimination in connection with the written warnings for tardiness.
3. Bonuses, Benefits and Training

Inhis response, Haywood claims “BMW discriminated and continues to discriminate against
Plaintiff in the award of ‘spiffs’ or bonuses.” Response at 3. Haywood further claims he “saw
individuals with lower customer satisfaction scores and less satisfactory employment records or
seniority receive benefits that were denied him,” Jd. at 7. Vinally, Haywood claims a white
salesman was sent to the adjoining Mercedes dealership for training by the owner of both
dealerships. /d. at 8. However, Haywood fails to offer any evidentiary or Icgal support for his

allegations in either his response or Local Rule 56.1 statement of facts. Haywood “cannot leave it

8


Minaty Order For (06197)

iw United States District Court, Northern District of Illinois

Name of Assigned Judge Suzanne B. Conlon Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 6408 DATE 6/17/2003
CASE RENALDO HAYWOOD vs. EVERGREEN MOTOR CARS, INC.
TITLE

[In the following box (a) indicate the purty Gling the motion, e.g, plainti(Y, defendant, 3rd purly plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

qd) im Filed motion of [ use listing in “Motion” hox above.]

(2) ao Brief in support of motion duc

(3) oO Answer brief to motion due___. Reply to answer brief due___

@ oO Ruling/Ilearingon set for__— at.

(5) oO Status hearing[held/continued to] [set for/re-set for]on__—ssetfor_——at__ ="

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__——setfor___— at

(7) O Trial[sct for/re-set for] on____at

(8) im {Bench/Jury trial] [Hearing] held/continyed to at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OOVRCP4(m) CLocal Rule 41,1. COFRCP41(a)(1) 0 FRCP41(a)(2).

qo) x [Other docket entry] | Defendant’s motion for summary judgment [33-1] is granted. Plaintiff's

motions to strike defendant’s affidavits [52-1] and for summary judgment [51-1] are denied. ENTER

MEMORANDUM OPINION AND ORDER.
Seepnee 73, Onde

No notices required, advised in open court. Document ;
Namber

umber of notin up ee

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

No notices required.

a | Notices mailed by judge’s statf.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form, LUNI LOW

Copy to judge/magistrate judge.

courtroom

Lace Ha LEAP EO
cB deputy’s

initials Laas} —_
‘time received in

central Clerk's Office ailing Weputy initials



inappropriate, cannot reasonably be considered extreme and outrageous. See Piech v. Arthur
Andersen & Co., 8.C., 841 F.Supp. 825, 831 (N.D.IIL1994)("The work setting contemplates a
degree of teasing and taunting that in other circumstances might be considered cruel and
outrageous"). As a result, Haywood cannot establish his intentional infliction of emotional distress
claim.

Even if Haywood could establish BMW’s conduct was extreme and outrageous, summary
judgment must be granted. ‘The Illinois Human Rights Act preempts tort claims that inextricably
linked (o allegations of harassment. Maksimovic v. Tsogalis, 177 Til.2d 511, 516, 687 N.F.2d 21,
22-23 (1997). Haywood’s intentional infliction of emotional distress claim is based on the same
factual allegations supporting his discrimination and harassment claims. Therefore, Haywood’s
intentional infliction of emotional distress claim fails as a matter of law.

CONCLUSION

BMW is entitled to judgment as a matter of law on all claims advanced by Haywood.

June 17, 2003 ENTER:

B. Conlon
United States District Judge

11



v. City of Boca Raton, 524 U.S. 775, 787 (1998), citing Oncale vy, Sundowner Offshore Services,
Inc., 523 U.S. 75, 80 (1998). A workplace must be "hellish" before it is actionable as a hostile
environment. Logan v, Kautex fextron North America, 259 F.3d 635, 641 (7th Cir.2001).

Haywood cannot establish that harassment was sufficiently severe or pervasive to alter the
conditions of his employment and create an abusive working environment. According to Haywood,
he was subjected to five or six comments by a co-worker, one comment by Boomsma and one
offensive e-mail opened in his presence over the last four years. See Baskerville y. Culligan Int'l
Co., 50 F.3d 428, 430-31 (7th Cir. 1995)(“handful of comments spread over months” are not
sufficiently severe or pervasive to constitute harassment). Based on the totality of circumstances,
arcasonable jury could not conclude the alleged conduct was so severe or pervasive as to constitute
an actionable hostile work environment.
Il, Intentional Infliction of Emotional Distress Claim

To establish a prima facie case of intentional infliction of emotional distress, Haywood must
prove: (1) BMW engaged in extreme and outrageous conduct; (2) BMW knew or should have know
its conduct would cause scvere emotional distress; and (3) the conduct caused Haywood severe
emotional distress. McGrath v. Fahey, 126 111.2d 78, 86, 533 N.E.2d 806, 809 (1998). BMW argues
that Haywood camnot prove its conduct was extreme and outragcous. Haywood fails to address his
intentional infliction of emotional distress claim in his response.

In order to establish extreme and outrageous conduct, Haywood must prove more than

” Public Finance

“mere insult, indignities, threats, annoyances, petty oppression or trivialities.
Corp. v. Davis, 66 I1L.2d 85, 89, 360 N.E.2d 765, 767 (1997). “Rather, the nature of the defendant's
conduct must be so extreme as to go beyond all possible bounds of decency, and to be regarded as
intolerable ina civilized community.” Kolegas v. Heftel Broad. Corp., 154 11.24 1,21, 607 N.F.2d
201, 211 (1992). The determination of whether a defendant’s conduct is extreme and outrageous
must be made on the facts of cach particular case. McGrath, 126 Lll.2d at 90, 533 N.E.2d at 811.

Construing all inferences in his favor, Haywood has not established that BMW’s conduct was

extreme and outrageous. The conduct complained about by Haywood, although rude and

10



B. Indirect Method
L Failure to Promote

In order to establish prima facie case of race discrimination based on a failure to promote,
Haywood must show: (1) he belongs to a protected class; (2) he applied for and was qualified for
the position sought; (3) he was rejected for that position; and (4) BMW promoted someone outside
of his protected class who was not better qualified. Grayson v. City of Chicago, 317 F.3d 745, 748
(7th Cir. 2003). BMW argues that Haywood cannot establish a prima facie casc based on the
promotions of Dokmo and Accettura.

BMW first contends Haywood cannot establish he was qualified for amanagement position.
BMW considers experience, leadership, adherence to dealership policies and procedures,
organizational skills and salesmanship in making promotion decisions. Although Haywood has
enough experience for a management position, he lacks leadership, adherence to dealership policics
and procedures, organizational skills and salesmanship. According to BMW, Haywood is not
qualified for a management position because he fails to stay Jate, arrive carly and come in during
scheduled days off when necessary to accomplish goals and promote sales, fails to effectively
prospect and follow-up on sales leads by telephone, mail, email and networking, Icaves “loose
ends” in sales transactions and has a history of tardiness. Haywood fails to properly dispute
BMW’s assessment of his qualifications. As a result, Haywood cannot establish he was qualified
for a management position.

Even if Haywood could establish he was qualified, he fails to establish he was as qualified
as Dokmo or Accettura. Indeed, Haywood does not even attempt to compare his qualifications with
those of Dokmo and Accettura. In contrast, BMW points out that Dokmo and Accettura have
college degrees whereas Haywood does not. Prior to working at BMW, Dokmo served as used car
manager and general sales manager at Downers Grove Dodge. Accettura has approximately 23
years of management experience and has supervised up to 300 employees. As a sales
representative, Acccttura demonstrated leadership skills and dedication to the dealership by working

extended hours. Accettura is a good-finisher, detail-oriented, even tempered and adheres to

7


B. Local Rule 56.1

Local Rule 56.1 requires the non-moving party to submit a response “to each numbered
paragraph in the moving party’s statement |of material facts], including, in the case of any
disagreement, specific references to the affidavits, parts of the record, and other supporting
materials relied upon.” Local Rule 56.1(b)(3)(A). All relevant facts denied without supporting
documentation must be accepted as true provided the facts are “properly supported by references
to the record or other evidentiary material.” Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d
868, 871 (7th Cir. 2000).

Haywood’s response to BMW’s statement of facts fails to comply with Local Rule 56.1.
Specifically, Haywood’s responses to paragraphs 18, 19, 24, 44, 45, 59, 61-63, 70 and 95 of
BMW’s statement of facts fail to cite record evidence supporting his denial. Therefore, BMW’s
factual statements, if properly supported, are deemed admitted.

I. Facts

All facts are undisputed unless otherwise noted. BMW hired Haywood, who is African-
American, as a sales representative on July 30, 1999. Haywood has approximately 12 years
experience as a sales representative. He does not have a college degree. At the time Haywood was
hired, Boomsma was the general manager.

On March 27, 2001, BM W hired Dokmo as a sales manager with the understanding that he
would become the general sales manager once the used car department was properly organized.
Dokmo, who has a bachelor’s degree from Valparaiso University, previously worked al Downers
Grove Dodge as a used car sales manager and general sales manager. In June 2001, Dokmo was
promoted to the general sales manager position at BMW.

During a sales meeting attended by the entire sales staff, Boomsma announced the sales
manager job opening created by Dokmo’s promotion. During or shortly after the meeting, four
sales representatives cxpressed interest in the management position: Haywood, Lou Russo, Berto

Soria and Accettura. Boomsma later discussed the four sales representatives with Dokmo.

Boomsma considers expericnce, leadership, adherence io dealership policics and procedures,

3



testimony.” Buckner v. Sam's Club, Inc., 75 F.3d 290 292 (7th Cir. 1996). However, Haywood
fails to demonstrate that the affiants contradicted their prior deposition testimony.

As an initial matter, Haywood points to only one paragraph in Boomsma’s 68 paragraph
affidavit and three paragraphs in Acccttura’s 18 paragraph affidavit to support his broad objection.
“[JJust as the court is not required to ‘scour the record looking for factual disputes,’ it is not
required to scour the party’s various submissions to piece together appropriate arguments.” Liffle
v. Cox's Supermarkets, Inc., 71 F.3d 637, 641 (7th Cir. 1995), quoting Waldridge v. American
Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994)(internal citation omitted). ‘Therefore, only
Haywood’s specific objections to Boomsma and Acccttura’s affidavits will be considered.

Boomsmaattests that he “is familiar with BMW’s policies regarding employee absences and
tardiness.” Boomsma Aff. at § 13. According to Haywood, Boomsma contradicts his earlier
deposition testimony that “[t]here is no exact policy” regarding employee absences and tardiness.
Motion at 2, citing Boomsma Dep. at 106. Contrary to Haywood’s contention, Boomsma testified
during his deposition that “[t]here is no cxact policy” regarding information to be included in
employee counseling reports or “conversation contfirmers.” Boomsma Dep. at 101-106, Therefore,
paragraph 13 of Boomsma’s affidavit does not contradict his prior deposition testimony.

Nor does Accettura contradict his prior deposition testimony in paragraphs 16 through 18
of his affidavit. Accettura attests he immediately spoke to employee Michelle Dural about an
offensive e-mail after Haywood informed him that Dural opened the e-mail in a customer’s
presence. Accettura Aff. at JJ 16-18. According to Haywood, Accettura’s affidavit must be
stricken because it contradicts Dural’s deposition testimony. Motion at 3. Haywood [ails io cite
any legal authority supporting his position. To the contrary, BMW may offer Accettura’s affidavit
to contradict Dural’s deposition testimony. Escatel v. Cushman, No. 96 C 0399, 1997 WL 159468,
at *3 (N.D. IL. March 27, 1997). Therefore, Haywood’s motion to strike the three affidavits offered

by BMW must be denied.



TN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
RENALDO HAYWOOD, )
)
Plaintiff, ) No. 02 € 6408
) Boge
Vv. ) Suzanne B. Conlon, J dee, “
} UN apes
EVERGREEN MOTOR CARS, INC. 5 TR 20
d/b/a BMW OF ORLAND PARK, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
Renaldo Haywood (“Haywood”) sues Evergreen Motor Cars, Inc. d/b/a BMW of Orland
Park (“BMW”) for race discrimination and harassment under Title VIL of the Civil Rights Act of
1964, 42 U.S.C. § 2000e er seg. and 42 U.S.C. § 1981 and common law intentional infliction of
emotional distress. Haywood’s retaliation claims were previously dismissed. The partics move for
summary judgment pursuant to Fed. R. Civ. P. 56. In addition, Haywood moves to strike three
affidavits offered by BMW in support of its summary judgment motion.
BACKGROUND
I. Evidence
Evidence submitted at the summary judgment stage must be admissible at trial. Woods v.
City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000). Therefore, the court must first determine the
admissibility of the evidence presented by the parties before reaching the merits of the summary
judgment motions.
A. Haywood’s Motion to Strike BMW’s Affidavits
In support of its summary judgment motion, BMW offers affidavits from general manager
Scott Boomsma, general sales manager Jon Dokmo and sales manager Guy Accettura. Haywood
moves to strike the three affidavits in their entirety, claiming they contradict the affiants’ earlier

deposition testimony. “As a general rule, the law of this circuit does not permit a party to create an

issue of fact by submitting an affidavit whose conclusions contradict prior deposition or other sworn

| 9)