interrogatories, admissions, and affidavits leave no genuine issue of material fact, and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Mosher v, Dollar

Tree Stores, Inc., 240 F.3d 662, 666 (7th Cir. 2001). When evaluating summary judgment
motions, the Court views the facts in the light most favorable to the non-moving party and draws
all reasonable inferences in its favor. See Contreras v. Suncast Corp., 237 F.3d 756, 759 (7th
Cir. 2001).

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

Plaintiff also secks relief for this alleged discrimination under 42 U.S.C. § 1981. Section
1981 provides a separate method to challenge an employer’s alleged intentional discrimination.
See Walker y. Abbot Labs, 340 F.3d 471 (7th Cir. 2003). Although there are some procedural
differences between Title VII claims and Section 1981 claims (no statute of limitations in Section
1981, not necessary to file EEOC charge in Section 1981), “the same standards governing
liability under Title VII apply to § 1981 claims.” Bennett v. Roberts, 295 F.3d 687, 697 (7th Cir.

2002) (quoting Gonzalez v, Ingersoll Milling Machine Co., 133 F.3d 1025, 1035 (7th Cir.

1998).

1. Hostile Work Environment Claim

Plaintiff alleges that the conditions at Mueller created a hostile work environment that
would violate Title VII. Under Title VH an employer is prohibited from maintaining a workplace

that is permeated with “discriminatory intimidation, ridicule, and insult that is sufficiently severe


Plaintiff's own employment records indicate that he lost the additional five cents per hour not
because of being displaced from the lead person position, but from a “new union contract.” (Pl.
App., Tab A-1)

In Traylor vy, Brown, the Seventh Circuit addressed whether the failure to assign a
plaintiff certain duties constituted an adverse employment action. There, the Seventh Circuit
held that this was not an adverse employment action because the plaintiff “was not terminated,
demoted, or disciplined[;] her pay was unaffected and her job responsibilities were not
materially diminished.” Traylor, 295 F.3d at 789. Similarly, the Plaintiff in this case suffered no
tangible, material harm from not being granted the lead person position. Therefore, the failure to
so assign cannot be an adverse employment action within the meaning of the statute.

Plaintiff's final alleged adverse employment actions were discipline for poor work
performance, poor attendance, and bringing a notebook into the warehouse. “Unfavorable
performance evaluations alone d[o] not constitute adverse employment actions.” Oest v. Illinois
Dep’t of Corrections, 240 F.3d 605, 613 (7th Cir. 2001). Although Plaintiff received repeated
warnings, none of these negative evaluations rise to the level of an adverse employment action
that would be actionable under Title VII for they were not materially adverse.’

As Plaintiff did not suffer any materially adverse employment actions, he cannot sustain

his claim of retaliation. Plaintiff still works for Defendant in the same position at the same pay.

>The only adverse employment action Plaintiff suffered that would be actionable under
the statute is the three-day suspension for misappropriating corporate funds. Defendant
suspended Plaintiff because he submitted a reimbursement request for safety shoes based on a
receipt that was for tennis shoes. Defendant ordered Plaintiff to supply him with documentation
that he had purchased new salcty shoes, and when he failed to comply, he was suspended for
three days. Unsurprisingly, Plaintiff does not press this action to support his claim for retaliation.

9



I. Race Discrimination Claim

Although the Plaintiff clearly alleged in his EEOC charge and his complaint in this Court
that he had been discriminated against on the basis of his race, Plaintiff abandoned his complaint
of race discrimination during discovery. At Plaintiff's deposition, the following colloquy took
place:
Do you have any claim in this case of race discrimination?
No.
Are you claiming in this case at all that you are being discriminated

against on the basis of your race?
No.

> OFA

(PI. Dep. at 127-28) The undisputed evidence submitted in support of Defendants’ Motion for
Summary Judgment demonstrates that Defendants are entitled to summary judgment on
Plaintiff's race discrimination claim.

IW. RETALIATION CLAIM

Plaintiff's final claim is that Defendants retaliated against him for complaining of racial
discrimination at Mueller’s Addison facility. The Seventh Circuit announced the legal standard

for retaliation claims in Stone v. Cily of Indianapolis Pub. Util. Div., 281 F.3d 640 (7th

Cir.2002). According to Stone, the plaintiff may establish a prima facie case of retaliation and

overcome defendant's motion for summary judgment using either the direct method or the
indirect method. Under the direct method, the plaintiff must present direct evidence of (1) a
statutorily protected activity; (2) an adverse action taken by the employer; and (3) a causal
connection between the two. Id. at 644

Under the indirect method, no causal connection is required between the protected

activity and the adverse actions. To procced this way, the plaintiff must show that (1) he engaged



or pervasive to alter the conditions of the victim’s employment and create an abusive work

environment....” Harris v. Forklifi Systems, Inc., 510 U.S. 17, 21 (1993) (citations omitted)

(quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986)). There are several

factors to consider in determining whether a given work environment is sufficiently hostile to

violate the statute. See Hilt-Dyson v. City of Chicago, 282 F.3d 456, 463 (7th Cir.2002)
(describing factors); Cerros v. Stcel Techs., 288 F.3d 1040, 1045-46 (7th Cir.2002){same). As an
initial matter, though, the plaintiff must show that the harassment was based on a characteristic

that placed the plaintiff within a protected class. Cerros, 288 F.3d at 1045.

In this case, the plaintiff cannot make that initial showing. The Seventh Circuit has held
that plaintiffs who seek to bring a hostile work environment claim must be able to demonstrate
that the hostility was based on one of plaintiffs own characteristics. See Bermudez v. TR¢
Holdings, Inc., 138 F.3d 1176 (7th Cir. 1998). In Bermudez, the Seventh Circuit rejected a claim
that persons opposed to discrimination could bring a hostile work environment claim without
belonging to the protected class that was subjected to the harassment: “We have never
recognized this as a valid theory of discrimination under Title VII.” Id. at 1180. Plaintiff's
hostile work environment claim could proceed to trial if Plaintiff were African-American, see

Mendenhall v. Mueller Streamline Co., No. 01-C-9740, 2003 WL 187405, at *4—*5 (N.D. IIl.,

Jan. 28, 2003) (denying summary judgment on the hostile work environment claim of an African-
American plaintiff who works at the same warehouse as Plaintiff), but because Plaintiff is white,
his hostile work environment claim fails in this Circuit. Plaintiff's contentions as to his right to
assert a hostile work environment claim is foreclosed by the holding in Bermudez: Defendants

are entitled to summary judgment on Plaintiff's hostile work environment claim.



how disadvantageous a change, took place.” Sitar v. Indiana Dep’t of Transportation, 344 F.3d

720, 727 (7th Cir. 2003). For Plaintiff, though, his job responsibilities have not changed. Order
picking was always part of the job description for workers in Plaintiff's position. His day-to-day
duties may have changed when he was moved from the auditor task to the order picking task, but
his job responsibilities remained the same. When a given job encompasses a range of duties,
being ordered to perform any of those duties will rarely, if ever, be a sufficient change in job

responsibilities to constitute an adverse employment action.” See Place v. Abbot Lab, Inc., 215

F.3d 803, 810 (7th Cir. 2000) (“[Bjcing shifted to an essentially equivalent job that [the plaintiff]
did not happen to like as much does not a Title VII claim create.”)

With respect to the lead person position, Plaintiff cannot establish that the failure to place
him into this position constitutes an adverse employment action. In order to be an adverse
employment action, “an employee must show that ‘material harm has resulted from . . .the
challenged actions.’” Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002) (quoting Haugerud v.
Amery Sch. Dist. 259 F.3d 678, 692 (7th Cir. 2001). In this case, the Plaintiff has failed to
demonstrate that the lead person receives any tangible benefits from occupying the role. The
record demonstrates that when Plaintiff was the lead person in 1995, he did receive five cents
more per hour as compensation. If this pay differential had continued to the present, Plaintiffs
allegations relating to the lead person position would have some traction. Unfortunately for

Plaintiff, the Defendant has submitted clear evidence that the pay differential no longer exists.

*Even if it were an adverse employment action, Plaintiff could not proceed on this basis
under the direct method of proof because there is no causal connection between the assignment to
order picker and any protected activity. Plaintiff became order picker in October 2000, prior to
his complaint of racial discrimination. (Pl. Dep. at 155)

8


Q.

Minute Order Form (0647)

‘

() United States District Court, Northern District of Illinois

Natke of rues David H, Coar Sitting Judge if Other
+ Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 6615 DATE 10/21/2003

[7

JAR(Ic)

CASE Walker vs. Mueller Industries, Inc.
TITLE
[Un the following box (a) indicate the party liling the motion, v.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presenied.|
Defendants’ Motion for Summary Judgment

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above.]

(2) i) Brief in support of motion due __

Q) Oo Answer brief to motion duc___._ Reply to answer brief due.

(4) o Ruling/Hearing on __ set for _at_

(5) i) Status hearing[held/continued to] [set for/re-set for] on set for at _

(6) im Pretrial conference[held/continued to] [set for/re-set for] on ___ set for at _

(7) oa ‘Trial[set for/re-set for] on at _

(8) o [BenctyJury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OrrePa(m) OLocal Rule 41.1 OOFRCP41(a)\(1) OO FRCP41(a)(2).

(io) [Other docket entry] For the reasons given in the attached memorandum opinion, Defendants’
Motion for Summary Judgment [Doc. 17] is granted in its entirety, All other pending motions are moot
and terminated. This case is closed.

ws ‘
G1) wf {For further detail see order attached to the original minute order.]
No nolices required. advised in open court. Document
Number
No notices required number of novices
Notices mailed by judge's stafl
OCT 22 2003
Notified counsei by welephone. dgie docksted

v | Docketing to mail notices.

‘ 2

J | Mail AO 450 form . eashontibutly innids /

Copy to judge/magistrate judge _ oO

ats,mailed nojice
courtroom

deputy’s
initials

ural Clerk's Olfice, ‘nailing Ceputy initials



The Defendants are entitled to summary judgment on Plaintiff's retaliation claim.
CONCLUSION
For the reasons given in this opinion, Defendants’ Motion for Summary Judgment is
granted in its entirety.

Enter:

David H, Coar
United States District Judge

Dated: October 21, 2003



in a statutorily protected activity; (2) he performed his job according to his employer’s legitimate
expectations; (3) despite his satisfactory job performance, he suffered an adverse action from the
employer; and (4) he was treated less favorably than similarly situated employees who did not

engage in statutorily protected activity. Id.; Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465

(7th Cir. 2002), Haywood y. Lucent Techs., 323 F.3d 524, 531 (7th Cir. 2003). If the plaintiff
establishes these elements, the burden shifts to the defendant to come forward with a legitimate,
non-invidious reason for its adverse action. Id, Although the burden of production shifts to the
defendant under this method, “the burden of persuasion rests at all times on the plaintiff.”

Haywood, 323 F.3d at 531 (citing Kicin v. Trustees of Indiana Uniy., 766 F.2d 275, 280 (7th

Cir.1985)). Once the defendant presents a legitimate, non-invidious reason for the adverse action,
the burden shifts back to the plaintiff to show that the defendant's reason is pretextual. Id.

Plaintiff believes that he can satisfy the burden of proof under both the direct and indirect
method of proof. He can satisfy neither. His claims of retaliation fail for the same reason under
both the direct and indirect methods of proof: he cannot show that Defendants took a materially
adverse employment action against him.

Defendant denies that Plaintiff has suffered any adverse employment actions. Plaintiff
points to three things which he characterizes as adverse employment actions: (1) his assignment
to the order picking task in the warehouse; (2) the denial of his application to become lead
person; and (3) discipline he received for poor work performance, attendance, and bringing a
notebook into the warehouse .

“{A] change in job responsibilities can .. . constitute the type of adverse action by an

employer that would support a retaliation claim[,} . . . depend[ing] on how much of a change, and



contained complaints and/or reports about the goings-on at the Addison facility. Mueller would
often (though not always) investigate the complaints.

Plaintiff did not complain of workplace discrimination until April 2001. Prior to his
complaints, Plaintiff was aware of conduct in the Mueller facility in Addison that he believed
constituted racial harassment. The conduct included racially motivated songs, references to
African-Americans as “monkeys”, and the word “n-i-g-a” scrawled on the walls of the
warehouse.

On May 21, 2001, Plaintiff Dennis Walker filed a Charge of Discrimination with the
Equal Employment Opportunity Commission (EEOC) alleging that Defendant Mueller Industries
discriminated against him on the basis of his race, white, and retaliated against him for making
complaints of racial discrimination. (Pl. Comp., Ex. A) On April 26, 2002, the EEOC issued its
determination that there was “reasonable cause to believe that Respondent [Mueller Industries]
maintains a hostile work environment on the basis of race, Black, in violation of Title VII.” (PI.
Comp., Ex. B) On June 20, 2002, the EEOC issued Plaintiff a notice of his right to sue. (Pl.
Comp., Ex. C) On September 17, 2002, Plaintiff timely filed his lawsuit in this court. (Pi, Comp.)

Plaintiffs Complaint alleges that Defendants subjected him to a racially hostile work
environment; discriminated against him on the basis of his race; and retaliated against him for
complaining of racial discrimination. (P1. Comp., §{] 6-8) Plaintiff seeks relief under Title VII of
the Civil Rights Act and 42 U.S.C. § 1981. Defendants now move for summary judgment on
Plaintiff's Complaint.

Summary Judgment Standard

Summary judgment should be granted if the pleadings, depositions, answers to



inc. Unless it is necessary to distinguish between these two entities for any reasons, references to
"Mueller" will refer to both of these Defendants. The third Defendant in this action is Deborah
Jones ("Jones"). (Def. Facts, 3) Defendant Jones has been the manager of the Mueller facility in
Addison since October 1999, Since that time, Jones has also been Plaintiff's supervisor.

In the distribution center in Addison, warehouse workers, such as Plaintiff, perform a
variety of tasks. The types of duties include tube bay, UPS, inventory or cycle count, auditing,
and picking orders. (Pl. Dep. at 61-64) On any given day, warehouse workers at Mueller can be
assigned to perform any of the duties listed above. According to Plaintiff, picking orders is the
most physically exhausting duty among those in the Addison distribution center. Picking orders
is what Plaintiff does “95 percent of the time.” (PI Dep. at 63)

All of the warchouise workers at Mueller’s Addison facility report to Defendant Jones.
Jones has the authority to designate an employee as a “lead person” who has some supervisory
authority. The parties dispute whether the lead person is truly a supervisor, but they do not
dispute that the lead person lacks the authority to discipline, discharge, or hire employees. (Def.
Facts, 18) In 1995, Plaintiff occupied the lead person position. At that time, he received five
cents per hour additional compensation for performing the lead person role. In August 1995,
Plaintiff ceased being the lead person and his pay was reduced downward by five cents. Since
that time, the collective bargaining agreement has been amended in some respects. Since Jones
became manager of the Addison facility, none of the warehouse workers are paid any differently
than what is set forth in the union contract. (Pl. App. at Tab B (“Jones Dep.”) at 13:24, 14:1--5)

Throughout his tenure at Mueller, Plaintiff would occasionally send letters to Mueller’s

corporate office; some letters he would sign, others he would submit anonymously. These letters


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

EASTERN DIVISION
DENNIS J. WALKER )
) No. 02 C 6615
Plaintiff, )
) HONORABLE DAVID H. COAR
v. )
)
MUELLER INDUSTRIES, Inc., et al., )
)
) OCT 22
Defendants. ) # 2003

MEMORANDUM OPINION AND ORDER

Plaintiff Dennis Walker filed this lawsuit alleging racial discrimination and retaliation for
complaining of raciat discrimination in violation of Title VII and 42 U.S.C. § 1981. Defendants
have now filed for summary judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure. Their motion has now been fully briefed. For the reasons set forth below,
Defendants’ Motion for Summary Judgment is granted.

Factual and Procedural Background

Plaintiff Dennis Walker ("Plaintiff" or "Walker") is a sixty-one year old Caucasian male
who works as a warehouse worker for Defendant Mueller Streamline Company at its distribution
center in Addison, Illinois. (Def. St. Undisputed Facts ["Def. Facts"], (1-2; Pl. St. Undisputed
Facts ["Pl. Facts"], {{{] 1-2)! Walker has worked for Mueller Streamline Company since 1993.

Defendant Mueller Streamline Company is a subsidiary of Defendant Mueller Industries,

'Unless otherwise noted, the Court only draws those facts from the parties’ statements of
undisputed material facts that are not in dispute. Where there is any significant disagreement, the
Court will cite to the source of the facts in the evidence filed in connection with the summary
judgment motion.

2,