department employee who did not complain received overtime in
February wnen they worked less than forty hours or were available
only a fraction of the month. There is also no allegation that
other employees who received overtime were comparable in terms of
skill, training, and availability, or that he was equally qualified
for the particular overtime tasks on the weeks he was eligible.
The evidence in the record actually demonstrates that Plaintiff was
treated better than the other employees who did not complain of
discrimination -- Plaintiff was the maintenance department employee
with the highest overtime pay in December 2003 and January 2004,
and had the second highest amount of overtime overall in 2003

Taking the facts and inferences in the light most favorable to
Plaintiff, he cannot make a prima facie case of retaliation based
upon overtime opportunities or the two suspensions.

Finally, the Court notes that Plaintiff attempts to raise the
several new retaliatory actions in his opposition memorandum and
materials -- his December 2004 performance review, his placement on
a wellness plan, and allegedly disparate work assignments. The
Court disregards these allegations because they were not pled in
the complaint. “A plaintiff may not amend his complaint through
arguments in his brief in opposition to a motion for summary
judgment.” Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.
1996). Further, these allegations do not constitute materially

adverse employment actions even if properly pled. Plaintiff did

- 20 -


employees were not on a break, a supervisor (let alone the same
supervisor) personally saw them reading the paper, and the
supervisor knew that they were not on break when observed reading.
Plaintiff points to several instances of obviously dissimilar
conduct, such as co-workers reading the paper before a supervisor
arrived at work. Further, Plaintiff admits that he did not report
to anyone the alleged instances of co-workers misconduct on
October 27, October 30, November 12, December 5, December 11,
December 16, January 14, and January 21. Plaintiff also never
provided to any supervisor the log he maintained of such alleged
incidents.

Additionally, contrary to Plaintiff’s contentions, a Caucasian
maintenance department employee, Greg Kozicki, who also has
Sobkowiak as supervisor, was disciplined (even more harshly) when
a supervisor observed him engaging in the same conduct on company
time. In 1990, Kozicki was disciplined on multiple occasions (a

verbal warning, written warning, and three day suspension) by the

then-supervisor who personally observed him reading the newspaper.
In 1996, Kozicki was again suspended for five days. Plaintiff
tries to distinguish himself from Kozicki by arguing that he did
not get a verbal warning before suspension. The record reflects
otherwise. Seven days earlier, supervisor Palmer approached
Plaintiff and asked him to fix a leak in a steam pipe. Plaintiff

who was trained to fix the pipe and was on company time, complained

- 14 -


instructed to check the salt dispenser in the boiler room. Palmer
told Plaintiff to punch out and go home. Plaintiff left before
7:00 a.m. and was suspended for one day. Plaintiff acknowledges
that under company policy, employees are not allowed to read the
newspaper or eat unless they are on a break. Plaintiff contends
that the rule is inequitably enforced.

On October 14, 2003, Plaintiff was paid for the entire day and
worked an extra hour of overtime. He spent roughly four hours that
day (from 9:00 a.m. until approximately 1:00 p.m.) on a personal
project -- he built a barbeque grill. That morning, Sobkowiak
observed Plaintiff cutting a drum. Plaintiff asked Sobkowiak if he
could take the drum home, and Sobkowiak agreed. Due to this
interaction, Plaintiff contends that Sobkowiak knew about the
grill. Sobkowiak testified that he did not know until later in the
day that Plaintiff was using the drum to build a grill on company
time. Regardless, Plaintiff testified in his deposition that he
did not seek or receive permission to build the grill on company
time. Sobkowiak and Brian Bell confronted Plaintiff at the end of
the day about the grill, and suspended him for five days.

D. EEOC Charge and Response

Plaintiff filed an EEOC charge on January 15, 2004 alleging
race discrimination and retaliation, alleging he had been

subjected to a hostile-work environment based on my race,

including . . . racially derogatory remarks and

disparate terms and conditions of my employment compared
to my similarly situated non-African American co-




action; and (4) [he] was treated less favorably than similarly
situated employees who did not engage in statutorily protected
activity.” Luckie v. Ameritech Corp., 389 F.3d 708, 714 (7th Cir.
2004).

Statutorily protected expression can include informal
grievances to supervisors. See Laird v. Cragin Federal Bank,
Nos. 94-1321 & 1556, 1994 WL 609920 at *6 (7th Cir. Nov. 3, 1994).
It is undisputed that Plaintiff complained to various supervisors
on multiple occasions from 2002 on. The content of his complaints
is disputed, as is the date on which Defendant received notice of
Plaintiff’s race-based allegations. However, Plaintiff has
satisfied element one because a reasonable jury could conclude that
Plaintiff engaged in statutorily protected activity. Element two
is undisputed by Defendant.

Plaintiff must also show that he suffered an adverse
employment action and was treated less favorably than similarly
situated employees who did not complain to management. Plaintiff's
complaint alleges three retaliatory instances: the two suspensions
(discussed above) and the refusal to provide overtime opportunities
in February 2004. Under Seventh Circuit law, actionable adverse

employment actions must be materially adverse, such as a
termination of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss of

benefits, significantly diminished material responsibilities, or

- 18 -


As discussed supra, the vast majority of Plaintiff’s factual
allegations are disputed. One undisputed allegation, however, is
that a co-worker wore a “Clan” T-shirt with a hooded figure in
Plaintiff’s presence. The Court must carefully consider “the
social context in which particular behavior occurs and is
experienced by its target .. . [T]he real social impact of
workplace behavior often depends on a constellation of surrounding
circumstances, expectations, and relationships.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998). Taking
the allegations in the light most favorable to Plaintiff, a
reasonable jury could find that the shirt, when combined with the
other allegations, was a harassing comment based on race.
Accordingly, Plaintiff meets element two for summary judgment
purposes.

The Court next addresses element three, whether the alleged
harassment created a hostile environment. Plaintiff must establish
that his workplace was both subjectively and objectively hostile,
in that it was “sufficiently severe or pervasive as to alter the
conditions of the victim’s employment and to create an abusive
working atmosphere.” Doe. V. R.R. Donnelley & Sons, Co., 42 F.3d
439, 443 (7th Cir. 1994). The Court examines the totality of the
circumstances, and considers the following relevant factors: the
“frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive

-10-


must view all the evidence and any reasonable inferences that may
be drawn from that evidence in the light most favorable to the
nonmovant. Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003
(7th Cir. 2000).
III. DISCUSSION
A. Motions to Strike

Plaintiff and Defendant have filed dueling motions to strike
portions of each other’s Local Rule 56.1 submissions. Rule 56.1
“serves the important function of structuring the summary judgment
process so as to ‘assist the court by organizing the evidence,
identifying undisputed facts, and demonstrating precisely whose
each side propose[s] to prove a disputed fact with material
evidence.” Menasha Corp. v. News Am. Mktg. In-Store, 238 F. Supp.
2d 1024, 1029 (N.D. Ill. 2003) (quoting Markham v. White, 172 F.3d
486, 490 (7th Cir. 1999)). The statements and responses should
“contain only the material facts. They are not a proper place to

present legal arguments or conclusions. Gizaw v. Ill. Dept
of Public Aid, No. 02 C 5862, 2004 WL 421958, at *4 (N.D. Tli.
Feb. 13, 2004) (emphasis added).

Defendant submitted 413 numbered = statements in its
Rule 56.1(a) (3) Statement of Material Facts. Plaintiff responded,
and also included 246 numbered statements in its Rule 56.1(b) (3) (B)

Statement of Additional Facts. Defendant responded, and then added

314 reply statements to Plaintiff's responses to Defendant’s


workers... I have been called a ‘nigger’ and a ‘coon’

on several occasions and many times when I have

complained to my supervisors about the remarks they are

dismissed as jokes. However, soon after making

complaints about the harassing remarks, 1 have been

falsely disciplined for reading the paper while other

non-African American co-workers are not discipline [sic]

for reading the paper.
After receiving the EEOC charge in late February 2004, Defendant
commenced an investigation and enacted several changes. It hired
an independent investigator to interview Plaintiff's coworkers
regarding his allegations; disciplined and suspended several
employees; implemented additional discrimination and harassment
training; and held mandatory individual harassment training
sessions for specific employees.

II. LEGAL STANDARD

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 a judgment as a matter of law.” Feb. R. Civ. BP. 56(c). A fact
is “material” if it could affect the outcome of the suit under the
governing law; a dispute is “genuine” where 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 burden is initially upon the movant to demonstrate the absence

of a genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). In assessing the movant’s claim, the court

-6-


other indices that might be unique to a particular situation.”
Oest v. Ill. Dep’t of Corrections, 240 F.3d 605, 612-13 (7th Cir.
2001) (citation omitted).

Plaintiff's two suspensions would constitute adverse
employment actions. However, as discussed at length supra,
Plaintiff has not established that there exist any similarly
situated employees who were treated differently (or more favorably
than Plaintiff as to either suspension. Accordingly, Plaintiff
cannot establish a prima facie case of retaliation based upon such
actions. Further, Defendant has asserted legitimate, non
discriminatory rationale for the suspensions, which Plaintiff has
not rebutted.

Plaintiff also contends that supervisors withheld overtime
from Plaintiff in February 2004. From the Court’s research, it
appears that the Seventh Circuit has not definitively addressed the
issue of whether this would constitute an adverse action, and the
parties have not addressed it. Because Plaintiff cannot prove that
he was treated less favorably than similarly situated employees who
did not engage in statutorily protected activity, the Court need
not resolve this issue. To be eligible for overtime, an employee
must first work a full forty hour week. It is undisputed that
Plaintiff worked less than forty hours during two weeks of February
2004. Plaintiff does not demonstrate that others were similarly

situated. There is no allegation that another maintenance

- 19 -


we evaluate § 1981 claims under the same rubric as Title VII
claims, we need not address them separately.”). Plaintiff alleges
his co-workers created a hostile work environment through their
race-based words and actions. To survive summary judgment, “an
employee alleging racial harassment must show: (1) he was subject
to unwelcome harassment; (2) the harassment was based on his race;
(3) the harassment was severe or pervasive so as to alter the
conditions of the employee's work environment by creating a hostile
or abusive situation; and (4) there is a basis for employer
liability.” Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1029
(7th Cir. 2004). Defendant contends that Plaintiff has failed to
establish elements two through four.

As to element two, Defendant denies that any employees called
Plaintiff express racial epithets, such as “nigger” or “coon.”
Defendant further contends that Plaintiff’s remaining allegations
are uncorroborated or not based upon race. For example, Sobkowiak
testified that ne also asked Caucasian maintenance department
employees if they were “on crack.” Similarly, Caucasian employees
testified that they had been asked “who put a quarter in you.”
Defendant argues other alleged statements were not racial if
considered in context - the use of the word “coon” in a discussion
about racoons in a garage, and the “pull the mask off” comment said

once around Halloween.


IN THE UNITED STATES DISTRICT COURS | L E D
FOR THE NORTHERN DISTRICT OF ILLINOfS “

EASTERN
iT. DIVISION JUN 2 2005

DGE HARRY OD. LEINENWEBER
“U8. DISTRICT COURT JUDGE

Plaintiff, Case No. 04 C 2042

CHARLES GRIFFIN,

v. Hon. Harry D. Leinenweber
DAUBERT CHEMICAL CO., INC.,

Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Charles Griffin, an African-American male, filed a
six-count complaint against Defendant Daubert Chemical Company for
race harassment (Counts I and II), race discrimination (Counts IIL
and IV), and retaliation (Counts V and VI) under Title VII and
42 U.S.C. § 1981. Before the Court are the Defendant’s Motion for
Summary Judgment and the parties’ Cross-Motions to Strike. The
Court does not specifically cite to the record in evaluating the
motions because a large part of the record was filed under seal.
I. BACKGROUND
A. Employment Description
Defendant hired Plaintiff as a maintenance welder and
repairman beginning on or around March 9, 2000, and he remains an
employee to date. Since his date of hire, four of his five
performance reviews have indicated that Plaintiff met Defendant’s

overall standards. Only Plaintiff’s most recent review {January


A plaintiff must prove race discrimination using either direct
or indirect evidence. Plaintiff has not alleged direct evidence of
race discrimination, and therefore, he must prove his claim under
the indirect method. See Daniels v. Federal Reserve Bank of
Chicago, No. 98 C. 1186, 2004 WL 419796, *8 (N.D. Ill. 2004). This
method requires Plaintiff to present evidence establishing that:
“(1) [he] was a member of a protected class; (2) [he] was qualified
for the job in question or was meeting her employer’s legitimate
performance expectations; (3) [he] suffered an adverse employment
action; and (4) the employer treated similarly situated employees
outside the class more favorably.” Foster v. Arthur Andersen, 168
F.3d 1029, 1035 (7th Cir. 1999). If Plaintiff establishes each of
these four elements, then the burden of production shifts to
Defendant to identify a nondiscriminatory reason for the action
taken. See Little v. Ill. Dep't of Revenue, 369 F.3d 1007, 1011
(7th Cir. 2004). After Defendant establishes a valid reason,
Plaintiff can avoid summary judgment only by producing evidence
that Defendant’s stated reason is merely pretextual. See id.

Elements one through three are undisputed. Defendant argues
that Plaintiff’s claims fail because he cannot meet element four -~
“similarly situated.” A similarly situated employee is “someone
who is directly comparable to him in all material respects,”
Grayson v. O'Neill, 308 F.3d 808, 819 (7th Cir. 2002), including

being “similarly situated with respect to performance,

-12-


utterance; and whether it unreasonably interferes with an
employee's work performance.” Harris v. Forklift Systems, 510 U.S.
17 (1993).

What was said, how frequently, and by whom, are genuine
material facts that are at issue in this case. Interpreting
Plaintiff's allegations in a light most favorable to him, as is
required, the Court finds that material factual disputes exist on
element three. The Court further notes material factual disputes
exist on element four. Weighing evidence and evaluating the
credibility of witnesses are issues for the trier of fact and a
jury must evaluate the strength and weight of the evidence. See
Hawkins v. Groot Indus., Inc., No 01 C 1731, 2003 WL 1720069, at *3
{N.D. Ill. March 31, 2003). Accordingly, summary judgment is
inappropriate on the race harassment claims and Defendant’s Motion
for Summary Judgment is DENIED on Counts I and Il.

2. Race Discrimination Claims

Counts III and IV of Plaintiff’s complaint present race
discrimination claims pursuant to Title VII and 42 U.S.C. § 1981,
which the Court addresses simultaneously. See Herron, 388 F.3d at
299. Two actions form the basis of his race discrimination claim:
his September 2003 suspension for reading on company time; and his
October 2003 suspension for building a barbeque grill on company

time.

-11-


56.1(a) Statement of Material Facts. Defendant now moves to strike
paragraphs 494-505, 542-565, and 652-659 of Plaintiff’s Statement
of Additional Facts as immaterial and irrelevant. Plaintiff moves
to strike Defendant’s 314 reply statements in their entirety as
impermissible under Rule 56.1.

Here, both parties submitted voluminous materials in addition
to hundreds of asserted “material” facts -- a large portion of
which were repetitive, contradictory, hearsay, or not material. In
ruling on Defendant’s Motion for Summary Judgment, the Court
disregards all argumentative, conclusory, unsupported,
inadmissible, or otherwise non-conforming portions of the
respective Rule 56.1 statements. For example, the Court did not
consider Plaintiff’s asserted facts regarding his FMLA leave
request because they are immaterial to the complaint’s claims for
race harassment, discrimination, and retaliation, and are not
referenced in, or substantially related to, the allegations in
Plaintiff's EBOC charge. Accordingly, the parties’ motions to
strike are unnecessary, and such motions are DENIED AS MOOT.

B. ummary Ju: ent Motion
1. Race Harassment Claims

Counts I and II of Plaintiff’s complaint present race
harassment claims pursuant to Title VII and 42 U.S.C. § 1981. The
Court addresses these two counts simultaneously. See Herron v.

Daimler Chrysler Corp., 388 F.3d 293, 299 (7th Cir. 2004) (“Because


not suffer any negative economic consequences due to these alleged
actions. To the contrary, Plaintiff got a raise despite the review
and placement on the wellness program. He also did not lose any
benefits, have diminished material responsibilities, and he was not
terminated. “Unfair reprimands or negative performance
evaluations, unaccompanied by some tangible job consequence, do not
constitute adverse employment actions.” Grube v. Lau Indus. Inc.,
257 F.3d 723, 729 (7th Cir. 2001). Defendant’s Motion for Summary
Judgment is GRANTED on Counts V and VI.
Iv. CONCLUSION

For the reasons stated herein, Plaintiff’s and Defendant’s
Motions to Strike are DENIED AS MOOT. Defendant's Motion for
Summary Judgement is DENIED on Counts I and II, and GRANTED on
Counts III, IV, V, and VI of Plaintiff’s Second Amended Complaint.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
v United States District Court

—
Dated: ld.

- 21 -


Beginning on April 8, 2002, Plaintiff contends that he
complained to various supervisors about his co-workers’ actions,
including Sobkowiak (his direct supervisor), Mark Palmer (a
supervisor), Brian Bell (Plant Manager), Mark Pawelski (Vice
President), and Ginny Winkle (Corporate Human Resources}.
Defendant acknowledges that Plaintiff met with these individuals
and complained about his employment, but denies the substance of
the complaints. The supervisors testified that Plaintiff never
complained to them or mentioned the alleged race-based comments and
actions of his co-workers. To the contrary, Defendant contends
that in these meetings, Plaintiff only complained about his
workload, job assignments, the lack of opportunity to express
repair ideas, and that he and Patrick Adams (a Caucasian employee)
received more “dirty jobs” than other workers. Defendant insists
that it did not learn of any of Plaintiff’s racial harassment,
discrimination, or retaliation complaints until after it received
Plaintiff’s EEOC charge in February 2004.

Cc. Suspensions

On September 17, 2003, Plaintiff punched in at 6:00 a.m. He
went to the boiler room with coffee, a McMuffin, and a newspaper.
At approximately 6:35 a.m., supervisor Palmer made rounds at the
plant and could not locate Plaintiff. He looked in the boiler room
and found Plaintiff reading the newspaper, eating, and drinking

coffee. At that time, Plaintiff was not on break and had not been


and told Palmer to find another employee to fix it. Paimer
testified that Plaintiff was eating and reading the newspaper at
the time, which Plaintiff denies. Palmer verbally told Plaintiff
that he did not want this to happen again (a warning), and informed
Sobkowiak of the incident.

Plaintiff has not demonstrated that there exist any similarly
situated employees outside the class whom Defendant treated more
favorably. Therefore, Plaintiff has not made a prima facie case of
race discrimination based upon the September suspension. Even if
Plaintiff had made a prima facie case, Defendant has provided a
legitimate, nmondiscriminatory reason for the suspension --
Plaintiff's admitted violation of company policy by reading the
paper and eating while not on break. Plaintiff does not produce
evidence that such rationale is pretextual. Taking the facts and
inferences in a light most favorable to Plaintiff, a reasonable
jury could not find race discrimination based upon the September
suspension.

b. October Suspension

On October 14, 2003, Supervisor Sobkowiak suspended Plaintiff
for five days for building a barbeque grill during work hours
without permission. According to company policy, employees may do
personal work on company time only with permission, and usually for
short time periods. Plaintiff admitted that he did not obtain

approval to build the barbeque during work hours, testifying “No,

- 15 -


For these reasons, Plaintiff has not presented evidence that
Defendant treated similarly situated employees outside of
Plaintiff's class more favorably, and has not made a prima facie
case of discrimination based upon his suspension. Even if
Plaintiff had made a prima facie case, Defendant has identified a
legitimate, nondiscriminatory reason for the suspension --
Plaintiff's violation of company policy by spending significant
company time on a personal project without permission. Even when
the facts and inferences therefrom are interpreted in a light most
favorable to Plaintiff, the evidence does not support a finding of
race discrimination. Defendant’s Motion for Summary Judgment is
GRANTED on Counts III and IV.

3. Retaliation Claims

Counts V and VI of Plaintiff’s amended complaint present
retaliation claims pursuant to Title VII and 42 U.S.C. § 1981. A
plaintiff can pursue a retaliation claim using either the direct or
indirect method to establish discriminatory intent. See Stone v.
City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.
2002). Plaintiff presented no direct evidence of retaliation.

Under the indirect method, Plaintiff can establish a prima facie

case of retaliation by showing that “(1) [he] engaged in
statutorily protected activity; (2) [he] was performing her job
according to . . . legitimate expectations; (3) despite [his]

satisfactory performance, [he] suffered an adverse employment

-i17-


“trying to turn himself white” when he was covered by PVC dust; and
taped a pornographic picture to his locker. Plaintiff also alleges
that Supervisor Rob Sobkowiak said once, “I wouldn’t go to Indiana
that is where the Klan’s headquarters are” and asked him on
multiple occasions if he was “on crack” cocaine.

Defendant disputes nearly all of these allegations. Based on
the parties’ submissions, only the following allegations are
undisputed. Supervisor Rob Sobkowiak testified that asked
Plaintiff and the other maintenance employees (including
Caucasians) if they were “on crack.” Co-worker Greg Kozicki
admitted that on a few occasions before and after his shift, he
wore a T-shirt with a hooded figure on it, which said “Clan.”
Kozicki testified that the shirt was for his baseball team and
referred to an Irish clan. After learning of the shirt, Defendant
suspended Kozicki for three days, gave him six months probation,
and documented the incident in his personnel file. Defendant also
suspended other employees for failing to report the shirt.
Finally, co-worker Patrick Sherrick admitted that he said once that
he “want[ed] to be a police officer so _ [he] c[ould] beat
gangbangers” and that he may have added “black people.” As a
result, Defendant suspended Sherrick for five days without pay and
provided him additional harassment training. Defendant disputes
the complaint’s remaining allegations, as well as similar

allegations from the Statement of Additional Facts.


2004) indicated that he had “some improvement needed,” and
Defendant placed him on a wellness plan. Defendant also has placed
three Caucasian employees with similar reviews on wellness plans.

Plaintiff has consistently been the third highest paid
employee in the maintenance department. Since he was hired,
Plaintiff has received four pay raises: December 2000, January
2002, January 2003, and January 2004. Plaintiff was also the
maintenance department employee with the highest overtime pay in
December 2003 and January 2004, and had the second highest amount
of overtime overall in 2003. Plaintiff did not receive any
overtime in February 2004, but was only eligible for overtime
during two weeks of the month.

B. Allegations

In his second amended complaint (the “complaint”), Plaintiff
alleges that Caucasian co-workers and supervisors continuously made
racially derogatory comments to him. Specifically, Piaintiff
alleges that Caucasian co-workers called him a “nigger” and “coon”
on a daily basis; humiliated him on a daily basis; said “I can’t
see you. You're too dark”; said “who put a quarter in you” when he
tried to speak; said “some Blacks are just niggers and coons”; wore
a shirt with the word “Klan” displayed; told him to make a
“barbeque grill, nigger”; said “you can pull that mask off,
Halloween is over”; said “I don’t wanna be a brother, I want to be

a police officer so I can beat down black people”; asked if he was


qualifications, and conduct.” Radue v. Kimberly-Clark Corp., 219
F.3d 612, 617 (7th Cir. 2000).
a. September Suspension

On September 17, 2003, Plaintiff admits that Mark Palmer
personally observed him eating and reading the paper in the boiler
room when he was not on a break. Plaintiff acknowledges that under
company policy, employees are not allowed to read the newspaper or
eat on company time, unless they are on break or at lunch. Palmer
told Plaintiff for clock out for the day and go home. Plaintiff
left by 7:00 a.m. (a one-day suspension).

Plaintiff alleges that Caucasian maintenance employees
regularly engaged in the same activity without discipline.
Plaintiff relies on co-workers Greg Kozicki and Pat Sherrick’s
admissions that they have read the newspaper during work hours.
Plaintiff has not demonstrated that these employees are similarly
situated in that they “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 618. Plaintiff testified that he observed several co-
workers reading the newspaper on multiple occasions without
punishment. He makes conclusory, unsupported statements that some
employees were not on break on certain occasions that he observed
them. Plaintiff fails to allege or provide factual support to

establish that the conduct was similar to Plaintiff’s -- the

-13-


didn’t no one tell me to make it or I didn’t ask no one to make
it.” Pl. Dep., at 482:24-483:15.

Plaintiff argues that the five-day suspension was
discriminatory because other employees worked on personal projects
during work hours without punishment. Plaintiff contends that co-
worker Keith Simmons sold meat and rationed out doughnuts to other
employees during work time, and co-worker Kerry Kozicki tested and
replaced Christmas light bulbs during work time. As with the
September suspension, Plaintiff has not demonstrated that these
individuals are similarly situated. Plaintiff did not allege that
any other maintenance employee specifically built a grill, another
comparable large personal project, or that these other projects
required multiple hours during one shift. Additionally, Plaintiff
did not present evidence that these individuals worked on the
personal projects without permission, or that supervisors were even
aware of such activities.

Plaintiff also alleges that supervisors asked him to do
personal work for them on company time. Mark Pawelski assigned
Plaintiff the task of welding chairs, and that Dave Pope assigned
Plaintiff the task of repairing metal. However, Pawelski and Pope
are supervisors and are not similarly situated to Plaintiff.
Further, this work was obviously authorized as it was specifically

requested by supervisors.