do it. (Id. 4 47.) As of Friday, November 22, 2002, it appeared to Haskins, plaintif!’s immediate
supervisor, that plaintiff had not tested any of the backlogged drums. (Id. 4 49.) Consequently, on
Monday November 25, 2002, plaintiff was given a written warning for failure to follow instructions,
substandard work and failure to comply with federal regulations for drum tests, (Id. | 50.) The
warning said that plainti ff would be subject to “disciplinary actions up to and including termination,”
if he failed to follow directions in the future. (Id., Tab V(C), 11/25/02 Disciplinary Report.)

The following day, November 26, 2002, Haskins discovered six QTRs that plaintiff had
signed and dated Wednesday, November 27, 2002. (Id, 52.) In the grinding room, Haskins found
four of the six drums that corresponded to the QTRs. (1d. ff 55-56.) Haskins believed that the
drums had not been tested because they showed no signs of damage. (Id, § 57.) Haskins,
tecognizing their importance, moved the drums to the front office of the plant for safekeeping. (Id.
4 135.)

Haskins discussed the situation with Shah, and the two concluded that plaintiff had not tested
the drums, had falsified records and should be suspended for three days without pay. (Id. J¥ 59-60.")
The suspension started Wednesday, November 27, 2002 and continued through Tuesday, December
3, 2002. (Id. 4 61.)

On Monday, December 2, 2002, McGrew met with Haskins and Shah, reviewed the post-
dated QTRs that Haskins had found and cxamined the four drums that corresponded to the

paperwork, (Id. §{] 66-67.) Like Haskins and Shah, McGrew concluded that the drums had not been

*Plaintiff argues that any information relating to Shah should be stricken because it is
hearsay. But because plaintiff reports the results of Haskins’ meeting with Shah, not the statements
Shah made at that meeting, the hearsay rule is not implicated.

-4-


discriminatory reasons that could account for the workforce change, plaintiff's “statistical evidence”
is useless.

Plaintiff gets no further with his next bit of evidence: RSC’s terminalion of two other
African-American employees for falsifying records. Without some evidence about the datcs,
decision makers and circumstances of those terminations, and plaintiff has provided none, the mere
fact that they occurred proves nothing at all.

Finally, plaintiff says that discriminatory intent can be inferred from his testimony that the
conduct that prompted his discharge, falsification of the QTRs, never happened. In other words,
plaintiff says his testimony that he mis-dated the reports suggests that RSC’s reason for terminating
him was a pretext for discrimination.

But the question is not whether plaintiff did, in fact, lie on the QTRs, but whether RSC
belicved that he had. Jackson v. E.J. Brach Corp., 176 F.3d 971, 984 (7" Cir. 1999) (“[1]f [the
employer] honestly believed in the nondiscriminatory reasons it offered, even if the reasons are
foolish or trivial or even baseless, [the employce] cannot prevail.”) (internal quotation marks and
citation omitted). Without more— cvidence that the disputed drums were obviously damaged from
testing or testimony from another employee who saw plaintiff test the drums on November 23, 2002,
for example — plaintiff’s testimony that he performed the tests, but misdated the reports, suggests
that RSC was mistaken, not that it lied.

In fact, there is no evidence in the record from which we can conclude that RSC lied. On the
contrary, the record is replete with facts that suggest RSC honestly believed plaintiff had falsified
drum testing records. It is undisputed that at the time of his termination: (1) plaintiff had a backlog

of untested drums (Def.’s LR 56.1(a) Stmt. 4 45); (2) he was given two weeks to get the testing done


reasonably related to the allegations of the charge and grow(s] out of such allegations.’” Jd. (quoung

Jenkins v. Blue Cross Mut, Hosp. Ins.. Inc., 538 F.2d 164, 167 (7th Cir. 1976)). Plaintiff's failure

to promote claims are not like or reasonably related to his termination claim. Cf. Conley v. Village
of Bedford Park, 215 F.3d 703, 710 (7" Cir, 2000) (stating that claim for discriminatory suspension
isnot like or reasonably related to failure to promote claim). Plaintiff cannot, thercfore, pursue (hose
claims here.

We turn now to the termination claim. To defeat RSC’s motion on that claim, plaintiff must
present some direct cvidence of RSC’s discriminatory intent or comply with the indirect,

burden-shifting method of proof articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Cheek vy. Peabody Coal Co., 97 F.3d 200, 203 (7th Cir.1996). Plaintiff relies only on the
former method, saying that RSC’s discriminatory intent can be inferred from a “mosaic” of
circumstantial evidence. That evidence includes his satisfactory work performance the year prior
to his termination, the union’s recommendation that he be rcinstated, the racist comments of his
supervisors, the decline in the percentage of African-American employecs in RSC’s blow mold
department over a five-year period, RSC’s termination of two other African-American cmployees
for falsifying records and plaintiffs testimony that he simply misdated the contested QTRs.
Unfortunately for plaintiff, the pieces of this mosaic do uot paint a picture of discrimination.

The first bit of evidence that plaintiff says suggests discrimination is the “good” evaluation
he received from Haskins in 2001. That evaluation, however, was dated April 6, 2001 and related
to his job performance from August 2000 to April 2001. (See Pl.*s LR 56.1(b) Stmt., Tab V(4).)
Plaintifi’s termination occurred in December 2002, nearly two years after he received that

evaluation. The fact that plaintiff performed satislactorily in late 2000 and early 2001 docs not


tested. (Id, 1 68-69.) ‘Togcther they decided that plaintiff's actions warranted termination. (Id. J
71.) Later that day, McGrew discharged plaintiff. (Id. 73.)

On December 5, 2002, plaintiff filed a grievance with his union contesting his termination.
(1d. 80.) During the union’s investigation into the grievance, plaintiff and his union representative,
Karl Sarpolis, Jr., examined the four allegedly untested drums. (Id. 82.) The union concluded that
plaintiff had “pre-dated drum tests,” but requested that he be reinstated because of his years of
service with the company. (Id., Tab V(I), McGrew Deel. Att. A, 1/13/03 Letter to McGrew from
Sarpolis.)

At some point after December 2002, the four drums that Haskins had placed in the front
office disappeared. (Id. { 136.) The company has not been able to find them since. (Id.)

Plaintiff says that he did test the drums, as he was instructed, and merely wrote the wrong
date on the QTRs. (Id. | 88.) He contends that his race, not his conduct on the job, motivated his

termination.

Discussion
In Count I ofhis second amended complaint, plaintifFalleges that RSC terminated and failed
to promote him because of his race in violation of Title VI. It is undisputed, however, that plaintiff
did not raise the failure to promote claims in his EEOC Charge. (PI.’s LR 56.1(b)(3)(A) Stmt. {ff
122-25,) Thus, RSC says, he may not pursue them now.
The Court agrees. “As a general rule, a Title VII plaintiff cannot bring claims in a lawsuit
that were not included in [his] EEOC charge.” Cheek v. Western & S. Life Ins. Co., 31 F.3d 497,

500 (7th Cir. 1994), A claim falls within the scope of an EROC charge only of it is “like or

-5-


Stmt., Tab IV, Johnson Dep, at 135-36.) Similarly, Haskins’ comment was made in the summer of
2002, six months before plaintiff was fired. (Id. at 130-31.) And plaintiff has offered no evidence
to establish when DeVrics’ comment, which was made in reference to plaintiff's performance of a
needless and time-consuming task, was made. (Id., Tab TV(D), DeVries Dep. at 42-44.) Thus, these
comments would not bolster plaintiff's case, even if they had racial overtones.

Equally unhelpful are the statistics on the racial makeup of the RSC blow mold department
that plaintiff offers. In 1999, plaintiffsays, 80% of the company’s blow mold department employces
were African-American, 10% were Hispanic and 10% were white. Today, 40% of the cmployees
of that department are African-American, 40% are Hispanic and 20% ate white. In plaintiff's view,
those numbers support the inference that RSC has an anti-black animus.

There are several problems with this argument. First, those numbers are not really statistics
at all. Rather, they are what McGrew characterized as “an absolute guess” of the racial composition
of the blow mold department. (1d., Tab TV(C), McGrew Dep. at 35-37.) Second, plaintiff compares
the 1999 workforce to the 2004 work force, but provides no description of the workforce in 2002, the
year he was discharged. Thus, we have no way of knowing whether the purported changes occurred
before or after plaintiff's termination. Finally, even if there was a dramatic decrease in the number
of African-American employees around the time of plaintiffs discharge, that fact would be
meaningless without evidence about the context of that change. Wore the black employees
terminated or did they leave voluntarily? What were the retirement rates of each racial group? What
was the racial composition of the relevant labor market during that period? What was the racial

composition of the applicant pool during that period? Absent evidence that negates the many non-


‘Minute Order Farin (06/97)

LQ United States District Court, Northern District of Mlinois
Name of Assigned Jud a Sitting Judge if Oth
avo Magistrate Judge Paul E. Plunkett than assigned Judge
CASE NUMBER 03 C 3400 DATE 6/21/2004
CASE Jerome Johnson vs. Russell Stanley Corporation
TITLE

{Tn the following box (a) indivate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintif®, and (b) state bricfly the nature
of the motion being presented]

MOTION:

DOCKET ENTRY:

(a0) o Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) Oo Answer brief to motion due____- Reply to answer brief'due__

(4) o Ruling/Hearing on___—sset for att.

(5) im) Status hearing{held/continued to] (set for/re-set for]on___ssetfor_ al

(6) o Pretrial conference|held/continued to] [set for/re-set for]on = set for at

(7) Oo Trial{set for/re-sct forlon_— at

(8) ao {Bench/Jury trial] |Hearing] held/continuedto sat,

(9) Oo This case is dismissed [with/without} prejudice and without costs[hy/agreement/pursuant to]
OFRCP4(m) CO Local Rule 41.1 CLFRCP41(a)(1) C1 FRCP41(a)(2).

ao) off [Other docket entry) Date for status and ruling on motion for summary judgment of 7/15/04 is

stricken, There is no genuine issue of material fact on any of the claims plaintiff asserts against defendant
Russell Stanley Corporation, which is entitled to judgment as a matter of law. Defendant's motion for
summary judgment (27-1) is granted, Court enters judgment in favor of defendant Russel! Stanley
Corporation and against plaintiff Jerome Johnson. This is a final and appealable order.

Enter Memorandum Opinion and Order.

(11) {For further detail see order attached to the original minute order.
No notices requited, advised in open court, Document
Num
No notices required ne wae umber
Notices mailed by judgo’s staff, o
MUN 2 2 2004
Notified counsel by telephone. dane doofersa
| Docketing to maif notices “
af | Mail AO 450 form : cree aeuin depay ints nin
Copy to judge/magistrate judge. wa ae io
ve smile pov
courtroom “yA
cw deputy’s peda Wge
initials
Date/time reegived in
_gennieal: Chores Olfige sua depay ints

a
wit os



1992). As discussed above, plaintiffhas offered no evidence to suggest that RSC’s proffered reason
for terminating him, his falsification of the QTRs, is pretextual. Accordingly, RSC is entitled to
judgment as a matter of law on plaintiff's state-law retaliatory discharge claim.

In the last count of his complaint, plaintiff alleges that RSC is liable for spoilation of
evidence for having lost or destroyed the four drums that corresponded to the disputed QTRs. To
prevail on this claim, plaintiffmust prove that RSC had a duty to preserve the drums, it breached that
duty and that plaintiff had a rcasonable probability of succeeding in this suit, but for RSC’s
destruction of the drums. Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 270-71 & n.2 (Ill. 1995).

Plaintiff says that if the drums had been preserved, they could have been subjected to expert
analysis to prove that they had been tested. But such evidence would not be probative of pretext.
To prove pretext, plaintiff would have to cast doubt on the veracity of RSC’s belief that the drums
had not been tested. The missing drums could accomplish that task only if they were damaged or
showed other obvious signs of having been tested. We can only conclude that they did not, as it is
undisputed that plaintiff, his union representative Sarpolis, Shah, Haskins, DeVries and McGrew all
examined the drums and none of them, not even plaintiff himself, testified that the drums plainly
appeared to have been tested. On the contrary, Haskins, DeVries and McGrew all testified that the
drums obviously appeared not to have been tested, a conclusion with which Shah and Sarpolis
agreed, (See Def.’s LR 56,1(a) Stmt., Tab TV(C), Haskins Dep. at 70, 79; id., Tab TV(A), McGrew
Dep. at 56, 67, 75; id., Tab 1V(D), DeVries Dep. at 64-65; id., Tab V(1), McGrew Decl., Att. A,
1/13/03 Letter to McGrew from Sarpolis.) Because plaintiff could have presented evidence about

the condition of the drums, even in their absence, he has not created a fact issue on the causation

element of his spoilation claim.



(id. { 47); (3) when he had not donc so by Monday, November 25, 2002, he was given a written
warning for failure to follow instructions, substandard work and failure to comply with federal
regulations for drum tests (id. § 50); (4) the following day, November 26, 2002, Haskins discovered
six QTRs that plaintiff had signed and dated Wednesday, November 27, 2002 (id. $52); (5) Haskins
found four of the six drums that corresponded to the QTRs in the grinding room (id, {| 55-56); and
(6) Haskins, Shah and McGrew all examined the drums and believed that they had not been tested
because they were not damaged (id. {{{ 57, 59-60, 66-69). Moreover, it is undisputed that plaintiff's
union agreed that he had “pre-dated drum tests,” which it admiited “could causc senous
consequences to [plaintiff] and the Company.” (Def.’s LR 56.1(a) Stmt., Tab V(1D, McGrew Decl.,
Att. A, 1/13/03 Letter to McGrew from Sarpolis.)

Because the evidence, at most, suggests that RSC was mistaken about plaintiffs conduct, not
that it lied, plaintiff has not raised a genuine issuc on pretext. His failure to do so dooms his Title
VI termination claim, under either the direct cvidence approach or the McDonnell Douglas
burden-shifting mcthod of proof. Consequently, RSC’s motion for summaryjudgment on that claim
is granted.

In Count II of his complaint, plaintiff alleges that RSC discharged him in retaliation for his
refusal to allow defective drums to be shipped to RSC’s customers. To defeat RSC’s motion on this
claim, plaintiff must provide evidence that he was “(1) discharged; (2) in retaliation for his activities;

and (3) that the discharge violates a clear mandate of public policy.” Sherman v. Krafl Gen. Foods

Inc., 651 N.E.2d 708, 710 (Ill. App. Ct. 1995) (alteration, internal quotation marks and citation
omitted). “The element of causation is not met if the employer has a valid basis, which is not

pretextual, for discharging the employce.” Hartlein v. Minois Power Co., 601 N.E.2d 720, 728 (il.



suggest that his termination at the end of 2002 was motivated by his race. See, e.g., Karazanos v.
Navistar Int’! Transp. Corp., 948 F.2d 332, 336 (7" Cir. 1991) (stating that court “must focus...
upon (plaintiff’s] performance at the time of his termination”).

Similarly unavailing is the union’s recommendation that plaintiff be reinstated, Though the
union did make that request, it did not do so because it believed Johnson had been wrongly accused
of misconduct. On the contrary, afler “conductling] a through [sic] investigation” into the
allegations, the union admitted that plaintiff had “pre-dated drum tests,” which, the union said,
demonstrated “very poor judgement on his part.” (Def.’s LR 56.1(a) Stnt., Tab V(I), McGrew Decl.,
Att. A, 1/13/03 Letter to McGrew from Sarpolis.) Though the union recognized that plaintiff’
conduct “could cause serious consequences to him and the Company,” it asked RSC to reinstate him
because of his “past record, his length of service... and. . . to build upon the good relationship the
Company and the Union have established.” (Id,) Rather than supporting plaintiff's discrimination
claim, the union’s reinstatement request actually refutes it.

Plaintiff also says that certain comments his supervisors made reveal their racial animus.
Specifically, he says that Haskins called him an “SOB,” DeVries called him a “stupid ass” and
McGrew, during a union negotiation, said he wanted to get rid of all of “you people” or “SOBs” who
worked for Smurfit. Though not flattering, the comments made by Haskins, DeVries and McGrew
have no apparent racial connotations.

Even if they did, the comments would raise an inference of discrimination only if they were
made “around the time of” and “in reference to” plaintiff's termination. Gorence v. Eagle Food

Ctrs., Inc., 242 F.3d 759, 762 (7 Cir. 2001). They were not. McGrew’s comment was madc during

a union negotiation that occurred seven months before plaintiff was terminated. (PI.’s LR 56.1(b)


As a quality control technician, plaintiff was required to perform thrce kinds of tests on
drums pulled from different machines each shift: an open head drop test, a tight (or closed) head
drop tcst and a hydrostatic test. (Id. 4] 25, 28.) Plaintiff was expected to perform all thrce tests
within a few days of a drum’s production. (Jd. 429.) The SOPs required plaintiff to sign, date and
record the results of each test he performed on a quality test report (“QTR”). (Id. 4 31-33.)

The open head drop test was the most time-consuming of the tests plaintiff was required to
tun. (Id. 30.) Before he could run such a test, plaintiff had to take a drum from the frcezer, whore
drums were left to cure, fill it with frozen regrind (ground up plastic drums) and stones, put the lid
and ring on the drum and seal the drum shut. (Id. {{{j 34-35.) Then, using the drop tester machine,
plaintiff would lift the drum four feet, three inches off the ground, turn the drum to a forty-five
degree angle and drop it. (Id. § 36.) The drum passed the test if the lid did not come off, the side
seam did not crack and the regrind and stones did not spill out. (Id. 1 37-38.) Regardless of the
outcome, all drums are sent to the grinding room alter being tested. (1d. j 40-41.)

After an open head drum is drop tested, it shows signs of impact on the sides, the lid and the
ring. (Jd. § 42.) Over time, the drum may return to its original shape, but the ring and lid will
remain damaged. (Id.; Pl.’s LR. 56.1(b)(3)(A) Stmt. { 42.)

In November 2002, McGrew noticed seventy-one untested open head drums near plaintiff's
work area. (Def.’s LR 56.1(a) Sumt. § 45.) Some of them had production dates of July, August and
September 2002, which meant they were probably already in the hands of RSC customers. (Id. 46.)

McGrew told plaintiff that he had two weeks to test the drums, and authorized overtime for him to

*Plaintiff contends that damage was possible, but not inevitable, (See Pl.’s LR 56.1(b)(3)(A)
Stmt. § 42.) But the deposition testimony he cites for that proposition does not support his
contention.

«3-


of Ill. Inc., 209 F.3d 687, 692 (7th Cir. 2000), Summary judgment is appropriate only when the

record as a whole establishes that no reasonable jury could find for the non-moving party, Id,

Background!

Plaintiff, an African-American, was hired by Smurfit, RSC’s predecessor, in the fall of 1990.
(Def.’s LR 56,1(a) Stmt. 4 6.) In 1997, Smurfit sold to RSC the Addison, Illinois plant where
plaintiff worked. (Id. 2.) After the sale, plaintiff became an RSC employce. (Id. ] 6.)

RSC makes plastic drums that are used in, among others, the chemical and pharmaceutical
industries, (Id. J 1.) The drums made at the Addison plant often carry hazardous materials, which
the Secretary of Transportation defines as materials capable of posing an unreasonable risk to health
and safety when transported in commerce. (Id, | 3.) The testing and quality of these drums is
regulated by federal law. (Id. ] 14.)

RSC has a set of standard operating procedures (“SOPs”) for testing its drums to ensure that
all legal requirements are met, (Id. 9 16.) The SOPs require that certain quality tests be performed
on all drums and that others be performed on a sample of drums from each production line. (Id. 4
17.) The SOPs also require that the tests be described and the results be recorded on forms kept at
the facility. (id. 7 18.)

During the relevant time, plaintiff worked as a quality control technician. (Id. 8.) Plaintiff
reported to the quality supervisor, Jim Haskins, who reported to the quality manager, initially, Greg
DeVrics, and later, Anant Shah, who reported to the plant manager, Mark McGrew. (Id. §¥] 5, 10-

13.)

2Unless otherwise indicated, the following facts are undisputed,

-2+


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

EASTERN DIVISION
JEROME JOHNSON, )
)
Plaintiff, )
)
v. ) Na, 03 C 3400

) Paul E. Plunkett, Senior Judge
RUSSELL-STANLEY CORPORATION, y
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Jerome Johnson has sued Russell-Stanley Corporation (“RSC”) for its alleged violations of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000¢ et seq, and state law. RSC has filed a
Federal Rule of Civil Procedure (“Rule”) 56(c) motion for summary judgment. For the reasons set

forth below, the motion is granted.

The Legal Standard

To prevail on a summary judgment motion, “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, [must) show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ, P. 56(¢). At this stage, we do not weigh evidence or determine the truth
of the matters asserted. Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We view all

evidence and draw all inferences in favor of the non-moving patty. Michas v, Health Cost Controls



Conclusion
For the reasons set forth above, there is no genuine issue of material fact on any of the claims
plaintiffasserts against Russell Stanley Corporation, which is entitled to judgment as a matter of law.

Defendant’s motion for summary judgment is, therefore, granted. This is a final and appealable

order,

ENTER:

UNITED STATES DISTRICT JUDGE

patep: _JUN2 1 2004

-12-