type Carroll relies on. (P1’s Resp. Br. at 8.) Specifically, Carroll relies on suspicious
timing as the circumstantial evidence of Yellow Freight’s discriminatory intent in
discharging him. (P1’s. Br. at 12.) Carroll points to the incident involving the injury
report, the years of harassment, and the timing between when he complained about it for
the last time and when he was fired. (/d.) First, the record provides no indication that
Bochenek’s remarks were racially motivated. While certainly inappropriate, there is
nothing to indicate that his statements were motivated by Carroll’s race. See Harrison v.
Swedish Covenant Hosp., No. 95 C 547, 1997 WL 321688, at *10-11 (ND. Ill. June
6, 1997) (finding that insensitive comments did not create a triable issue of fact as to
racial harassment because comments were not racial in nature).

Furthermore, even if the statements could be construed as racially discriminatory,
they would only be relevant if they were “made by a decisionmaker and related to the
employment decision at issue.” Miller v. Am. Family Mut. Life. Ins. Co., 203 F.3d 997,
1005 (7th Cir. 2000); see Gorence v. Eagle Food Ctrs, Inc., 242 F.3d 759, 762 (7th Cir.
2001) (stating that “if someone not involved in the decisionmaking in a plaintiff's case
expressed discriminatory feelings, that is not evidence that the decision was
discriminatory.”). As to the other allegations of harassment, it is undisputed that it was
Bogdanovic, not Bochenek or any other employee, who made the decision to terminate
Carroll. (Def.’s LR 56.1(a)(3) J 69.) There is no evidence that Bogdanovic ever
expressed any discriminatory feelings. Furthermore, because Bogdanovic was not
involved in the incident, any claim that he considered it is speculation which is not
enough to establish a causal relation to the termination decision. See Sauzek v. Exxon
Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000) (stating that “[s]peculation based on

13



Br. at 12-13.) Instead, Carroll believes that the harassment he endured and the timing
between his grievance regarding the injury report incident and his firing show that he was
terminated because of his race. (Id.).
Carroll filed a charge of discrimination with the Illinois Department of Human
Rights (“IDHR”), that was cross filed with the Equal Opportunity Employment
Commission (“EEOC”), on August 22, 1995. (Pl.’s LR 56.1(b)(3)(B) ¢ 45.) Carroll
discussed the harassment with the intake officer and provided copies of the letters he sent
to Bogdanovic and Jansen. (Jd. | 47). As for the actual charge, it stated:
On August 4, 1995 I was discharged from my
position as mechanic. I was hired May 27, 1989.
William Bogdanovic (white) Area Maintenance
Manager told me I was discharged for falsification
of my application. I believe I have been
discriminated against because of my race, black in
that:
Thad a good work performance record.
I did not falsify my application.
Rocky (last name unknown, white)
Mechanic was accused of falsifying his
application but he was not discharged.
(Carroll Dep. Ex. 10, Charge of Discrimination.) The investigation resulted in a finding
of “lack of substantial evidence.” (IDHR Investigation Report.) In the investigation
report, the IDHR listed the August 4, 1995 termination as the only alleged violation.
(HR Investigation Report). Carroll received his right to sue letter on May 29, 2001.
(Compl., Ex. 2.) Thereafter, Carroll sued Yellow Freight for discrimination and

harassment based on race.


of that material fact and a misrepresentation as to his criminal record. Thus, Carroll

failed to meet Yellow Freight’s clearly articulated expectation of honesty on employment
Tec rtidbe abel te

applications establishing grounds’ fo
not satisfied the second element of his
However, even assuming that

satisfy the fourth. The fourth el

at any time. Therefore, Carroll has

:

ase of discrimination.

satisfy the second element he cannot
a showing that the employer treated

class more favorably. Gordon, 246

Coater, Inc., 13 F.3d 1130, 1132 (7th

for falsifying their employment applications. (Def.’s LR 56.1(a)(3) { 71.) Carroll does
not dispute this fact. (PI.’s LR 56.1(6)(3)(B) q 71.) He claims that Yellow Freight did
not fire two other non-black employees for falsifying their applications. (PI.’s Resp.
Mem. at 16.) However, he has presented no evidence that either of these employees
actually falsified their applications. To the contrary, he admits he has no personal
knowledge as to whether one of the employees, Rocco Leuzzi, lied on his application
about being fired from a previous job. (Carroll Dep. at 143.) He also admits that he only
“heard around the shop,” but did not know, that the other employee, Scottie Austin, lied
on his application. (Carroll Dep. at 145-46.) Carroll’s reliance on information allegedly
given to him by other Yellow Freight employees amounts to nothing more than sheer
speculation and inadmissible hearsay that other similarly situated employees were treated
differently than him. Speculation is insufficient to defeat summary judgment. Borcky v.
Maytag Corp., 248 F.3d 691, 695 (7th Cir. 2001). Furthermore, a nonmovant cannot rely
on hearsay in summary judgment proceedings. Minor v. Ivy Tech State Coll., 174 F.3d
17



is filed. Carroll did not allege any acts of harassment in his EEOC charge and, therefore,
failed to preserve his harassment claim for trial,

Carroll’s charge describes only those events surrounding his termination. It states
in general terms that Carroll believed he had been discriminated against because of his
race. Rush prohibits the Court from construing that statement so as to include any
possible claims involving race. Rush, 966 F.2d at 1111-12. Rather, the Court must
consider his general statement along with the specific factual allegations contained in the
charge. See id. (affirming dismissal of plaintiff's racial harassment claim because, “to
the extent that [plaintiff] was specific regarding . . . racial discrimination in the charge
she filed, it was by referring only to her termination.”). Therefore, the Court holds that
Carroll’s racial harassment claim is barred as beyond the scope of the EEOC charge.

The Court recognizes that some courts have looked beyond the “four corners” of
the charge to preserve a claim. See Rush, 966 F.2d at 1110-11 (holding that plaintiff's
three page handwritten affidavit, filed the same day as the EEOC charge, preserved a
claim of discriminatory promotion); Box v. A & P Tea Co., 772 F.2d 1372, 1375 (7th Cir.
1985) (holding that a hand written affidavit, taken together with an EEOC questionnaire,
were sufficient to preserve a sex discrimination claim despite the lack of any such
allegation in the actual EEOC charge); Jackson v. Local 707, Int'l Bhd. of Teamsters,
AFL-CIO, No. 95 C 7510, 2002 WL 460841, at *3.(N.D. Ill. Mar, 26, 2002) (allowing a
claim of racial harassment based on remarks in an EEOC questionnaire and
misrepresentations by EEOC representative that the claim would be investigated); Finley
v. il. Dep't of Public Aid, No 97 C 3381, 1998 WL 26156, at *6 (N.D. Ill. Jan. 12, 1998)
(allowing a claim of racial discrimination based on information contained in an intake

9


investigate the veracity of those allegations. Steffen v. Meridian Life Ins. Co., 859 F.2d
534, 542 (7th Cir. 1988). It also “affords the EEOC ‘an opportunity to settle disputes
through conference, conciliation, and persuasion before the aggrieved party [is] permitted
to file a lawsuit.” Babrocky, 773 F.2d at 863. (quoting Alexander v. Gardner-Denver
Co., 415 U.S. 36, 44 (1974)). “Thus the filing requirement is central to Title VII's
statutory scheme.” Jd. Only after the EEOC has completed its investigation and issued a
right to sue letter may a plaintiff seek judicial relief. Alexander, 415 U.S. at 47.

The “failure to file a charge that encompasses all of the allegations in the
complaint filed on the basis of the charge is very similar to the timeliness requirement.”
Babrocky, 773 F.2d at 863. Thus, as a general rule “a Title VII plaintiff cannot bring
claims in a lawsuit that were not included in [the] EEOC charge,” for to allow such a
claim “would frustrate the EEOC’s investigatory and conciliatory role, as well as deprive
the charged party of notice of the charge.” Cheek v. W. & S. Life Ins. Co., 31 F.3d 497,
500 (7th Cir. 1994). This means that “the scope of the subsequent judicial proceedings is
limited by the nature of the charges filed with the EEOC,” Rush v. McDonald's Corp.,
966 F.2d 1104, 1110 (1992). Put another way, an employee may not allege certain acts
to the EEOC and seek judicial relief for others. Jd. This rule is a “condition precedent
with which Title VII plaintiffs must comply.” Cheek, 31 F.3d at 500; see Babrocky, 773
F.2d at 863.

However, Title VII is remedial legislation, see Philbin v. General Electric Capital
Auto Lease, Inc., 929 F.2d 321, 323 (7th Cir. 1991), and this condition precedent is “to be

construed and applied broadly,” Jenkins v. Blue Cross Mutual Hospital Insurance, Inc.,


DISCUSSION

Summary judgment should be entered when “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 the moving party is entitled to a
judgment as a matter of law.” FED R. Clv. P. 56(c); see Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). In considering a motion for summary judgment, all facts and
reasonable inferences drawn therefrom must be viewed in a light most favorable to the
nonmoving party. Baron v. City of Highland Park, 195 F.3d 333, 337 (7th Cir. 1999).
“However, the mere existence of an alleged factual dispute between the parties is not
sufficient to defeat a motion for summary judgment.” Spath v. Hayes Wheels Int'l-Ind.
Corp., 211 F.3d 392, 396 (7th Cir. 2000). The nonmoving party is required to reveal the
existence of a “genuine issue of triable fact and that there is evidence on which a jury

could reasonably find for him.” Jd.

L Scope of the EEOC Charge

Title VII makes it “an unlawful employment practice 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 [or} color." 42 U.S.C. § 2000e-2(a)(1).
Prior to filing a suit in federal court “{a] plaintiff must file a timely charge with the
EEOC encompassing the acts complained of... .” Babrocky v. Jewel Food Co., 773
F.2d 857, 863 (7th Cir. 1985). The charge serves the duel purpose of notifying the
employer of the alleged discriminatory acts and providing the EEOC an opportunity to

5


855, 856 (7th Cir. 1999). Therefore, because Carroll cannot establish a prima facie case
of discrimination, the Court grants summary judgment in favor of Yellow Freight.
Because Carroll cannot satisfy elements (2) or (4), the Court need not address whether
Yellow Freight’s proffered reason for Carroll’s termination was a pretext for race

discrimination.

ON! SION
For the reasons set forth in this Memorandum Opinion and Order, the Court

grants defendant's motion for summary judgment (doc. no. 31-1]. This case is hereby

terminated,
SO ORDERED ENTER: 9/2 3/03
han
HON. RONALD A. GU:
United States Judge

18



November 11, 1985, I became a Full-time word processor

on January 1, 1988. On May 6, 1988 I was told by Sharon

Funston, Supervisor that I was being terminated. I believe

I have been discriminated against because of my race,

black.
Rush, 966 F.2d at 1108 n.9. The judicial complaint alleged several violations of Title VII
including harassment based on racial comments and disparate treatment. Jd. The Rush
court held that to allow the broad and opened-ended statement, “I believe I have been
discriminated against because of my race, black,” to preserve any claim that might relate
to race would frustrate the purpose of the EEOC. /d. at 1110. The court explained that
requiring some degree of specificity in a charge is not a “mere technicality,” Jd. at 1111,
and that the only conduct specified related to the plaintiff's termination. Jd. at 1112.
Therefore, only those claims reasonably related to the discharge were preserved for trial.
See id, at 1111 (affirming district court’s preservation of claims of racially discriminatory
discharge and denial of promotion as well as those claims derived therefrom). Thus, the
court determined that racial harassment is not like or reasonably related to racially
discriminatory termination.

The court in Rush recognized that the plaintiff had an attorney when she filed the
charge, Jd. at 1112, and that it was not unreasonable to require some additional
specificity. Jd. at 1112. However, two years later the Court of Appeals held that a
plaintiff must describe, “with some degree of specificity, the conduct she considered
discriminatory,” despite the fact that was not a professionally trained lawyer. Cheek, 31
F.3d at 502. Therefore, Rush and Cheek require a charge to contain some degree of
specificity regarding the alleged discriminatory or harassing acts in order to preserve
those claim for trial even if the plaintiff is not represented by an attorney when the charge

8


Minute Onder Form (0697)

_ \ United States District Court, Northern District of Illinois
ramegrciensoie | Ronald A. Guzman | Stn Je fone
CASE NUMBER 01 C 6755 DATE 9/23/2003
CASE Freddie J. Carroll vs. Yellow Freight Systems, Inc.
TITLE

[ln the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)

DOCKET ENTRY:

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

(2) gq Brief in support of motion due

@) im Answer brief to motion due__. Reply to answer briefdue__.

(4) im Ruling/Hearing on setfor at

(5) oO Status hearing[held/continued to] [set for/re-set for]on__—_—setfor__—_at

(6) Oo Pretrial conference[held/continued to} {set for/re-set for]on__setfor__—s—sat_
(a) QO Trial[set for/re-set for]on__at

(8) a [Bench/Jury trial] [Hearing] held/continuedto__—_at

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

OOFRCP4(m) (Local Rule 41.1 OFRCP41(a)(1) OC) FRCP41(a)(2).

ao [Other docket entry] | ENTER MEMORANDUM OPINION AND ORDER: the Court grants
defendant’s motion for summary judgment [31-1]. This case is hereby terminated.

(it) lf (For further detail see order attached to the original minute order.]

'No notices required, advised in open court.
No notices required. vontero
Notices mailed by judge's staff
03
Notified counsel by telephone, an a ‘
a | Docketing to mail notices.
Y_| Mail AO 450 form. 4unod our sia sn iM
wid
Copy to judge/magistrate judge. ‘EP 24 2
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courtroom
TBK deputy’s ,u3 a
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support that the race discrimination alleged in his charge is related to the race harassment
claim in his complaint, the Court notes that, while these memoranda contained the word
harassment, none alleged racial harassment. In one, Carroll states “I’m writing in
regards to the harassment I’ve endured for approximately three years,” and, “I’ve wanted
to write to you before, in hopes that you could help resolve the harassment problem, but
did not for fear of losing my job.” (Jansen Dep., Ex. 1, Mem. from Bogdanovic to Jansen
of 4/13/92.) The letter describes the incident regarding the threat on his life, that some
employees said there was a conspiracy against him, and that some employees “passed
gas” and belched while he was having lunch. (/d.) None of these statements suggest
racial harassment. The other statements concerning harassment are likewise devoid of
any mention of race. (/d.). While the memorandum suggest that Carroll had a problem
with fellow co-workers, it does not mention racial harassment.

In the other letter, Carroll describes the altercation with Bochenek and the injury
report. (Bogdanovic Dep., Ex. 20, Letter from Carroll to Bogdanovic of 7/3/95.)
Bochenek’s statements “You do this and I’m going to fire your ass for any little thing,”
and “sit your f***ing ass down right here,” suggest that he threatened retaliation for
filing an injury report, not that he was discriminating against Carroll because of his race.
(id.) Like the first letter, there is no mention of race as a factor in the harassment alleged.
Therefore, on these facts the Court cannot conclude that the memoranda were sufficient
to preserve a claim of racial harassment that was not contained in the charge.

Finally, even assuming that the letters sufficiently informed the EEOC of
allegations of racial harassment, the Court would still be required to follow Cheek. In
Cheek, the court stated that a letter written to the EEOC could “be considered an

il


question and statements made to an EEOC intake worker). However, not every piece of
information filed with an EEOC charge is sufficient to preserve a claim not found in the
charge. See Cheek, 31 F.3d at 502-03 (stating that letter sent to EEOC could only be
considered to the extent that it clarified or amplified allegations contained in charge but
not to extent that it expanded scope of those allegations).

Unlike the cases relied on by Carroll, he has no intake questionnaire for the Court
to examine. Nonetheless, Carroll argues that his affidavit, stating that he discussed
harassment with the intake officer and provided the letters he sent to Bogdanovic and
Jansen, should suffice, @lis. Response Br, at 5; Carroll Aff. {{] 3-5.)

In Vela v. Village of Sauk Village, 218 F.3d 661, 664 (7th Cir. 2000), the court
made clear that oral communications with an intake officer are insufficient to preserve a
claim not contained in the charge absent some misleading information on the part of the
intake officer. Jd. Specifically, the court stated that “an oral charge, . . . not reflected in
nor reasonably related to the charge actually filed, is not a sufficient predicate for a claim
of... harassment in [a] civil action.” Jd.

Neither the affidavit nor Carroll’s deposition state that he ever completed an
intake questionnaire. (Carroll Dep. at 137-38.) Furthermore, there is no evidence that the
intake officer had misleaded Carroll into believing that a claim of harassment would be
investigated. Accordingly, because Carroll’s oral charge of racial harassment was not
reasonably related to his written charge of racial discrimination, the Court will not rely
on it.

Looking to the inter-office correspondence upon which Carroll seeks to rely to

10


538 F.2d 164, 167 (7th Cir. 1976), because EEOC charges are filed by laypersons.
Cheek, 31 F.3d at 500. Thus, the charge need not allege every fact that forms the basis of

the claim in the complaint. Jd. Rather, “all Title VIE claims set forth in a complaint are

cognizable that are ‘like or reasonably related | to the allegations of the charge and
growing out of such allegations.” Jd. (quoting Jen bs 538 F.2d at 167).

The Jenkins test establishes two requirements, dd, First there must be a
reasonable relationship between the allegations in the charge and the complaint. /d. This
means that “the EEOC charge and the complaint must, at minimum, describe the same
conduct and implicate the same individuals, Cheek, 31 F.3d at 501 (emphasis added).
For example, in Cheek, the court held that the allegation of sex discrimination in an
EEOC charge and sex harassment in a subsequent complaint were not reasonably related
because an employer can discriminate on the basis of sex in numerous ways. Jd. at 501.
The court stated that “claims are not alike or reasonably related unless there is a factual
relationship between them.” Jd. Second, the claim in the complaint must “reasonably be
expected to grow out of an EEOC investigation of the allegations in the charge.” Jd.
This requires the court to speculate “as to what the BEOC might or might not discover in
the course of an investigation.” Jd. at 500.

On its face, Carroll’s EEOC charge alleges race discrimination with regard to his
termination. The word harassment is nowhere in the charge and, more importantly, no
facts of harassment are alleged. The charge and complaint in this case are similar to
those in Rush.

In Rush, the plaintiff's EEOC charge stated:

I began my employment as a Part-time word processor on

7


LR 56.1(b)(3)(B) ff 22-27, 35.) In April 1992, Carroll wrote a letter to Bogdanovic and
his superior, Steve Jansen, regarding “the harassment [he] endured for approximately
three years.” (Jd. | 27.) On June 29, 1995, after injuring his back on the job, Carroll
asked his supervisor, Paul Bochenek, for an injury report form. (/d. J 34.) Bochenek
responded by saying “if you do this I’m going to fire your ass for any little thing” and
“sit you f***ing ass down right here.” (/d.) Carroll described the incident in a letter
written to Bogdanovic on July 3, 1995. (/d. 4 35.) He also filed a grievance with his
union on July 5, 1995. (Id. | 36.) One month later, on August 4, 1995, Carroll was fired.
(Id. 7 38.)

Yellow Freight claims that on July 26, 1995, an anonymous caller phoned
Bogdanovic informing him that Carroll was a convicted felon. (Def’s. LR 56.1(a)(3) |
49.) In response, Bogdanovic retrieved Carroll’s file to review his application. (Jd. |
54.) Yellow Freight claims that the “No” box next to the felony conviction question was
checked. (Jd. | 9.) However, for the purposes of the motion for summary judgment, the
Court accepts Carroll’s contention that both the “Yes” and “No” boxes were left blank.
There is no dispute that the “Yes” box was not checked.

Bogdanovic then asked a member of Yellow Freight’s Security Department to
perform a criminal background check on Carroll. (/d. | 57.) After discovering Carroll’s
convictions for aggravated battery, he was terminated. (id. | 58.) Yellow Freight claims
that Carroll was fired for lying about the convictions in accordance with its honest policy,
not because of the convictions. (Jd. { 70.) Carroll maintains that, because he did not

check the “No” box, Yellow Freight’s version of events is “suspicious.” (PI.’s Response


suspicious timing alone . . . does not support a reasonable inference” of a Title VII
violation).

However, there is also a requirement that isolated comments be made
contemporaneously with the adverse action. Miller, 203 F.3d at 1005. Carroll primarily
relies on Bochenek’s allegedly racially discriminatory comment following Carroll’s
attempt to file an injury report. Even if those statements were racially motivated they
were not contemporaneous with the adverse employment decision. The incident with
Bochenek occurred on June 29, 1995. (Pl.’s LR 56.1(b)(3)(B) { 34.) He was not
discharged until August 4, 1995, more than a month later. (/d. | 38.) The adverse
employment decision may have taken place only a week after he filed a grievance with
his union, but retaliation for filing a union grievance is not a proper basis for a Title VII
cause of action. For these reasons, the Court holds that Carroll has not created a genuine
issue as to a material fact that would require a trial with regard to the direct method of

establishing race discrimination.

B. McDonnell Douglas Burden Shifting Method

When there is no direct evidence of racial discrimination, a plaintiff may proceed
under the burden shifting method outlined in McDonnell Douglas Corp. v. Green, 411
US. 792, 802 (1973). EEOC v. Our Lady of the Resurrection Med. Ctr., 77 F.3d 145,
148 (7th Cir. 1996); Taylor v. Canteen Corp., 69 F.3d 773, 779 (7th Cir. 1995). Under
this approach, a plaintiff must first establish a prima facie case of racial discrimination.

Our Lady, 77 F.3d at 148; Taylor, 69 F.3d at 779. This creates a presumption that the

14


recognize that coming to work, not falsifying documents, and not being insubordinate, are
usually implicit expectations that an employer has for his or her employees, by putting
these requirements in [the employer's] Work Rules, there can be no claim that these were
not legitimate expectations of the company.” 237 F.3d 756, 760 (7th Cir. 2001), cert.
denied, 534 U.S. 824 (2001) (emphasis added). The inquiry into the legitimacy of an
employer’s expectations is whether they are bona fide expectations. Robin v. Espo Eng’g
Corp., 200 F.3d 1081, 1090 (7th Cir. 2000). “It is no business of a court in a
discrimination case to decide whether an employer demands ‘too much’ of his workers.”
Id. at'1090. Thus, so long as employee honesty was a bona fide expectation of the
Yellow Freight, the question becomes whether Carroll met that expectation. Jd.; see
‘Worlds v. Nat'l RR. Passenger Corp., No 84 C 10027, 1988 WL 139252, at *3 (N.D. Ill.
Dec. 22, 1998) (stating that the employee’s “alleged dishonesty undermined his
qualifications to rejoin [the employer].”)

There is no question that Yellow Freight had a bona fide expectation that its
employees would be honest. Like the employer in Contreras, Yellow Freight’s policy
could be found in the Human Resources Policy Manual (Def.’s LR 56.1(a)(3) J 68;
Carroll Dep., Ex. 18, and the employment application itself (Carroll Dep., Ex. 2). In fact,
the employment application makes clear that any omission or misrepresentation of any
material fact is grounds for discharge at any time. (Def.’s LR 56.1(a)(3) ¥ 66; Carroll
Dep., Ex. 2.) Carroll signed the application just below that section.. (Carroll Dep., Ex.
2). There is also no dispute that Carroll had been convicted of two felonies prior to

completing the application. His failure to check the “Yes” box amounted to an omission

16



noticed gaps in his employment history (id. J 37), he asked Carroll to submit a third
application (id. | 41). Carroll did so and was made a full-time mechanic on September 1,
1990, (P1.’s LR 56.1(b)(3)(B) J 4.)

Yellow Freight has a policy that prohibits dishonesty on employment
applications. (Def.’s LR 56.1(a)(3) { 64.) Dishonesty on an employment application is
grounds for discharge at any time during employment. (Jd. | 64.) The policy can be
found in the Human Resources Policy and Procedure Manual (id. | 68) and on the
employment application itself. (Jd. | 64, 66; Carroll Dep. Ex. 2.) Specifically, the
employment application states:

IMPORTANT-PLEASE READ CAREFULLY
I certify that the information supplied by me in the
application is true, and I understand that any
misrepresentation or the omission of any material facts
shall be sufficient grounds for my discharge at any time
during my employment...
(Carroll Dep. Ex. 2, D66 (emphasis added).) Carroll’s signature appears directly below
this section on the third employment application. (/d.) The application also contains the
question “Have you ever been convicted of a felony?” and provides a “yes” and “no” box
that the applicant is to check. (/d.; Pl.’s LR 56.1(6)(3)(B) 7 9.) Carroll left that question
* blank. (PL’s LR 56.1(b)(3)(B) J 9.) However, Carroll had been convicted of felony
charges (id. ] 8), for armed robbery (Def’s. LR 56.1(a)(3) {¥ 15-18), and aggravated
battery (id. {J 19-23).
During his employment at Yellow Freight, Carroll alleges that he was subjected

to harassment by fellow co-workers, some of which appeared to him as racially

motivated and that he reported these incidents verbally and eventually in writing. (PI.’s


IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
FREDDIE J. CARROLL, )
Plaintiff, )
ve } Judge Ronald A. Guzman
YELLOW FREIGHT SYSTEMS, INC., } 01C 6755
Defendant. }

MEMORANDUM OPINION AND ORDER

Plaintiff Freddie J. Carroll (“Carroll”) has brought this action against his former
employer, Yellow Freight Systems, Inc. (“Yellow Freight”), under Title VII of the Civil
Rights of 1964, 42 U.S.C. § 2000e ef seg. (“Title VII’) for racial harassment while
employed and racial discrimination regarding his discharge. Yellow Freight moved for

summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons set forth in this

DOCKETED

SEP 24 2003

Memorandum Order and Opinion, the Court grants the motion.

FACTS
On May 19, 1989, Yellow Freight hired Carroll, a black male, for the position of
casual mechanic. (PI.’s LR 56.1(6)(3)(B) Stmt. (“PI.’s LR 56.1(b)(3XB)”) q 1.) He
submitted an employment application prior to being hired. (/d. { 2.) He completed a
second application, with the help of his wife, and submitted it five or six months later.
(Id. | 3.) On May 20, 1990 the Manager of Yellow Freight’s Chicago Terminal, Bill
Bogdanovic, considered Carroll for a full-time mechanic position. (Def.’s LR 56.1(a)(3)

Stmt. (“Def.’s LR 56.1(a)(3)”) { 36.) He reviewed Carroll’s application and because he


amendment to the original charge with the meaning of 29 C.F.R. § 1601.12(b). Cheek,
31 F.3d at 502. Therefore, a letter can be considered to the extent that it “clariffies] or
amplifies] the allegations contained within the charge, id., but not.to the extent that they
amount[] to additional allegations that expand[] the scope of the allegations in the
original charge. Jd. at 503. Thus, because the letter related to allegations unrelated to
any allegations contained in the charge they were insufficient to preserve the additional
claim. Jd. So it is here. The internal corporate memos discuss harassment, albeit not
racial harassment. His charge mentions only his termination as a discriminatory act.
(Compl. Ex 1). Because harassment is not like or reasonably related to discrimination,
particularly when the acts of harassment are completely different than the acts alleged in
the complaint, the memos do not “clarify or amplify” his charge. Rather, they contain
additional allegations that would expand the scope of the charge. Under Cheek, the Court
cannot permit them to do so. Accordingly, the Court grants Yellow Freight’s motion for

summary judgment as to Carroll’s Title VII race harassment claim.

Hi. Race Discrimination

A. Direct Method

There are three types of circumstantial evidence from which intentional
discrimination can be established under the direct method. Troupe v. May Dep't Stores
Co., 20 F.3d 734, 736 (7th Cir. 1994), “The first consists of suspicious timing,
ambiguous statement 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. Jd. This is the most common type, id., and the

12


employer unlawfully discriminated against the employee. Our Lady, 77 F.3d at 148;
Taylor, 69 F.3d at 779. A prima facie case of racial discrimination is established if
Carroll can show that: (1) he belongs to a protected class; (2) he met his employer’s
reasonable expectations; (3) he suffered an adverse employment action; and (4) his
employer treated similarly situated employees outside of his protected class more
favorably. Gordon v. United Airlines, Inc., 246 F.3d 878, 884 (7th Cir. 2001); Our Lady,
77 F.3d 148; Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1132 (7th Cir. 1994). If a prima
facie case is successfully established the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its decision. See Our Lady, 77 F.3d
at 149; Taylor 69 F.3d 780. If the defendant meets this burden, the presumption of
discrimination is rebutted and the plaintiff is required to produce evidence showing that
the employer’s proffered reason was pretextual and that the real reason was
discriminatory. Our Lady, 77 F.3d at 149; Taylor 69 F.3d 780.

There is no dispute that Carroll is in a protected class because he is black or that
he suffered an adverse employment action because he was terminated. However, there is
a dispute as to whether he met Yellow Freight’s reasonable, or legitimate, exceptions.
See Coco v. v. Elmwood Care, Inc., 128 F.3d 1177, 1178 (7th Cir. 1997) (stating that the
employee “is out of luck if he can’t show that he was meeting his employer’s legitimate
expectations.”). Yellow Freight does not dispute that job performance was not a factor in
Carroll’s termination. (Pl.’s LR 56.1(b)(3)(B) J 39.) However, Yellow Freight contends
that Carroll did not meet its legitimate expectation of employee honesty. (Def.’s Br. at 8-
10; Def.’s Reply Br. at 8-10.)

In Contreras v. Sunscast Corp., the Court of Appeals stated “[t]hough we

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