omitted).

In determining whether the harassment in the workplace is severe or pervasive,
courts look to the surrounding circumstances which “may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably interferes with an employee's
work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). However, as
the Seventh Circuit has recently noted, “[nJot every unpleasant workplace is a hostile
environment.” Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 977 (7th Cir. 2004).
Specifically, “[t]he workplace that is actionable is the one that is hellish.” Id.

Following these principles, the Seventh Circuit did not reverse the district court’s
finding that a racially hostile work environment existed toward black union pipefitters
when the harassment consisted of graffiti and other acts. See EEOC v. Pipefitters Ass'n
Local Union No. 597, 334 F.3d 656, 658 (7th Cir. 2003). In Pipefiters, the graffiti
included racially derogatory statements such as “death to all niggers,” and “Fergie
[plaintiff James Ferguson], if you don't want to be treated like a nigger, don't act like
one.” Jd. Additional acts further contributing to the court finding a hostile work
environment included “the placing of a swastika in a black pipefitter's toolbox, the
hanging of a Ku Klux Klan poster in a trailer used by black pipefitters during breaks, and
the display of a hangman's noose.” Jd.

The five instances Jackson alleges for his hostile work environment are in stark
contrast to those presented in Pipefitters. The work environment that Jackson alleges is
not “permeated” with discrimination because the five instances alleged by Jackson

collectively lack the severity or pervasiveness needed to create an actionable hostile work

19



evidence, that his employer’s decision to take an adverse job action against him was
motivated by an impermissible purpose, such as race....” Id. at 1061. Although not
found in the present case, “[d]irect evidence is evidence that, if believed by the trier of
fact, would prove discriminatory conduct on the part of the employer without reliance on
inference or presumption.” Jd. Essentially, direct evidence “requires an admission by
the decision-maker that his actions were based on the prohibited animus.” Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000). Jackson may also prevail
under the direct method by showing a “convincing mosaic of circumstantial evidence,”
provided that evidence points “directly to a discriminatory reason for the employer's
action.” Davis v, Con-Way Transp. Central Express, Inc., 368 F.3d 776, 783 (7th Cir.
2004) (internal quotation and citation omitted).

Just as Jackson lacks direct evidence of discrimination, he similarly lacks
circumstantial evidence sufficient to construct a “convincing mosaic” of discrimination.
See id. Assuming arguendo that an adverse job action indeed occurred, the five instances
of mistreatment Jackson alleges do not point directly to a discriminatory reason for Local
705’s actions. In fact, not including Zero’s mimicking, none of the remaining instances
have racial implications. Moreover, the instance that does have a racial implication,
Zero’s single instance of mimicking Jackson’s speech and behavior, does not point
“directly to a discriminatory reason for the employer’s action.” Jd. Because Jackson is
unable to proceed on his race discrimination claim under the direct method, the Court

will examine whether he can proceed under the indirect method.

2. The Indirect Method

13


knowledge of a statutorily protected activity is irrelevant under the indirect method, as it
“only goes to the causal nexus requirement of the direct method.” Gonzalez v. Neustar,
Inc., No. 02 C 7404, 2003 WL 22872108, at *6 (N.D. Il. Dec. 4, 2003) (citing Maarouf
v. Walker Mfg. Co., 210 F.3d 750, 755 (7th Cir. 2000)).

Jackson’s retaliatory discharge claim suffers from the same infirmity that his
claim for race discrimination does, specifically, whether he was treated less favorably
than similarly situated, non-African-American employees who did not engage in
statutorily protected activity. Jackson is unable to meet this fourth element because when
Jackson was terminated from his elected position on April 17, 2000, McCormick,
Benesch and Pocztowski were also terminated from their elected positions. (Def.’s LR
56.1(a)(3) § 31.) McCormick, Benesch and Pocztowski are all Caucasian, are politically
opposed to Zero, and did not file a race discrimination charge. Accordingly, because
similarly situated Caucasian employees who did not complain of discrimination were
terminated at the same time as Jackson, he is unable to present a prima facie case of
retaliation. Because Jackson cannot state a prima facie case, he is unable to shift the
burden of production to Local 705 to state a legitimate non-discriminatory.reason for his
termination and as such the Court need not analyze whether that reason was a pretext for

discrimination.

23



1. Jackson’s weekly activity report distribution

Local 705 requires its representatives, organizers and officers to complete
weekly activity reports in an effort to supervise their activities. (Def.’s LR 56.1(a)(3)
16.) On February 10, 2000, Zero distributed a memorandum to Local 705’s
representatives, organizers and officers, discussing the need to complete such reports and
attaching two reports as examples of what and what not to do. (/d.[17.) Jackson’s
report was included in the memorandum as the “don’t” report, thereby illustrating a bad
example, whereas a white employee’s report was included as the “do.” (/d.) Shortly
thereafter, at Local 705’s executive board meeting, Jackson complained about the use of
his report and Zero subsequently apologized, indicating “its use was for example

purposes only.” (/d. J 20.)

2. Jackson’s eviction

At the beginning of his employment by Local 705, Jackson worked from an office
cubicle, (/d. ]21.) Sometime in 1995, separate offices were constructed and Zero
assigned Jackson one of the newly constructed offices. (/d.) However, on March 16,
2000, when Jackson was absent from Local 705’s offices, Jackson was evicted from his
office and assigned to an office cubicle. (Jd. 422.) Asa result of the eviction, Jackson’s

belongings and possessions were moved from his office. Ud. | 28.)

3. Theft of items due to eviction
On March 17, 2000, at Local 705’s executive board meeting, Jackson informed

those present that some of his belongings were missing following his eviction. (/d.)

4


environment. First, Jackson was neither repeatedly subjected to racially derogatory terms
nor physically threatened. Second, Jackson has not alleged that his eviction and
subsequent reassignment to an office cubicle unreasonably interfered with his work
performance. Further, he has not alleged facts attributing the theft of his personal items
to Local 705. Finally, only one instance, Zero’s mimicking of Jackson’s speech and
behavior, was on its face racially harassing, but because of its infrequency was neither
severe nor pervasive. See Russell v. Bd. of Trs. of Univ. of Ill. at Chicago, 243 F.3d 336,
344 (7th Cir. 2001) (citing Ngeunjuntr v. Metro. Life Ins. Co., 146 F.3d 464, 467-68 (7th
Cir. 1998)) (noting that “relatively isolated comments suggesting bias against ethnic
minorities [was] insufficient to survive summary judgment”). While Jackson may have
subjectively felt that Local 705’s workplace environment was unpleasant, his allegations
of harassment neither create a “hellish” workplace nor one that is “permeated with
discriminatory intimidation, ridicule and insult.” Shanoff, 258 F.3d at 704. Asa result,
no genuine issue of material fact exists with respect to Jackson’s hostile work

environment claim.

Cc. Retaliatory Discharge

Under Title VII, an employer is prohibited from retaliating against an employee
who has “opposed any practice made an unlawful employment practice...or...has made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing.” 42 U.S.C. § 2000e-3(a). “[U]nlawful retaliation occurs when an employer
takes an adverse employment action against an employee for opposing impermissible
discrimination.” Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir. 2003). Jackson

20



causation under the direct method. He cannot.

As noted above, Jackson filed his charge with the IDHR on March 31, 2000,
which he later amended to include his April 17, 2000 termination. (Def.’s LR 56.1(a)(1)
{| 11-12.) However, as deemed admitted, Local 705 was unaware of Jackson’s charge
with the IDHR until May 3, 2000, when it received its first notification of Jackson’s
charge. (See Def.’s LR 56.1(a)(1) 4 13.) An earlier notice, postmarked April 12, 2000,
was returned to the IDHR, stamped: “Return to Sender, Insufficient Address.”* (Id.)
Furthermore, Jackson has made no allegation that Local 705 knew of his charge another
way. Accordingly, because Local 705 was unaware of the protected activity at the time
of Jackson’s termination, Jackson is unable to establish the requisite causal link under the
direct method. As a result, the Court will examine whether Jackson can proceed under

the indirect method.

b. Indirect Method

Under the indirect method, Jackson “must show: (1) he engaged 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.” Davis, 368 F.3d at 788.

Additionally, while relevant under the direct method, the decisionmaker’s lack of

8Jackson’s response is as follows: “DISPUTED: Jackson lacks sufficient information to address this point
and therefore denies any and every position herein.” (Pl.’s LR 56.1(b)(3)(A) J 13.) Again, Jackson points to no
evidence which would call this into dispute.

22



Local Rule 56.1) attributing the theft of his personal items following his eviction to Local
705.6 Thus, Jackson’s eviction and reassignment and theft of personal items do not
constitute adverse employment actions. However, because the Court holds that Jackson’s
termination from employment constitutes an adverse employment action, the Court will
consider whether there were similarly situated employees who were given more

favorable treatment by Local 705.

b. Similarly Situated Employees

As mentioned above, Jackson has the burden to show that “other similarly
situated employees who were not members of his protected class were treated more
favorably.” Davis, 368 F.3d at 784. “To meet his burden of demonstrating that another
employee is ‘similarly situated,’ a plaintiff must demonstrate that there is someone who
is directly comparable to him in all material respects.” Grayson v. O'Neill, 308 F.3d 808,
819 (7th Cir. 2002).

Jackson has not shown that other similarly situated employees, who were not

African-American, were treated more favorably. Specifically, when Jackson was

Even if Jackson were able to establish that his eviction constituted an adverse employment action, he is
unable to show that Local 705’s stated reason for his reassignment was pretextual. According to Local 705, the
reason why Zero “reassigned” Jackson was because Zero “determined that the Union’s organizers needed to have a
separate office and decided to reassign Bennie Jackson to an office cubicle in order to use that office for the
organizers.” (Def.’s LR 56.1(a)(3) 1 22). In response to this statement, Jackson responded: “DENIED.. .The lone
organizer, Gregory Foster, a Black, Male, never occupied the old Jackson office, which was occupied by Paul
DiGrazia, a white, male, Union Representative (not then an organizer). The lone organizer, a Black Male, remained
in the open area.” (P1.’s LR 56.1(b)(3)(A) $22.) However, because Jackson failed to conform his response to the
requirements of Local Rule 56.1 by citing the portion of the record that supports his denial, Local 705’s reason for
Jackson’s eviction is deemed admitted and the Court need not determine whether that reason was pretextual as the
Court is not obliged “to scour the record looking for factual disputes.” Waldridge, 24 F.3d at 922.

17



A. Res Judicata

Local 705 contends that by bringing both McCormick and the present case,
Jackson is “splitting his cause of action into two lawsuits” when he should have litigated
all his claims in McCormick. (Def.’s Mem, Supp. Mot. Summ. J. at 12, 14.) In opposing
Local 705’s arguments, Jackson contends that Illinois res judicata law applies. (Pl.’s
Resp. Def.’s Mot. Summ. J, at 8-11.) However, “[bJecause both the prior and the current
litigation were brought in federal court, the federal principles of res judicata. ..will
determine whether [Jackson’s] prior suit bars him from maintaining this action.” See
Little v. Tapscott, No. 01 C 9738, 2002 WL 1632519, at *2 (N.D. Ill. July 23, 2002)
(citing In re Energy Coop. Inc., 814 F.2d 1226, 1230 (7th Cir. 1987)).

In the Seventh Circuit, “[r]es judicata bars not only those issues which were
actually decided in a prior suit, but also all issues which could have been raised in that
action.” Brzostowski y. Laidlaw Waste Sys., Inc., 49 F.3d 337, 338 (7th Cir. 1995).
Accordingly, res judicata “requires two proceedings: an original proceeding wherein a
final judgment on the merits is rendered, and a subsequent proceeding wherein a party
seeks to litigate again a claim decided in the original proceeding.” Estate of Kanter v.
Comm’r of Internal Revenue, 337 F.3d 833, 871 (7th Cir. 2003).

With respect to the original proceeding in McCormick, the district court issued a
preliminary injunction on August 23, 2000, See 110 F. Supp. 2d at 716. As mentioned
above, Zero and Local 705 appealed the issuance of this injunction, but while the appeal
was pending, Jackson et al. lost the fall 2000 election, thereby rendering the case moot.
(Def.’s LR 56.1(a)(3) J 10.) As a result, the Seventh Circuit vacated the judgment of the
district court and remanded the case for the district court to dismiss the case as moot. See

9


there is no genuine issue as to any material fact and that the moving party is entitled toa
judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477
US. 317, 322 (1986). In analyzing Local 705’s motion, this Court must view the facts in
a light most favorable to Jackson, “drawing all reasonable inferences in [his] favor.”
Haywood v. Lucent Techs. Inc., 323 F.3d 524, 529 (7th Cir. 2003). However, Jackson is
not burden free as he “must set forth specific facts showing that there is a genuine issue
for trial.” See Fed. R. Civ. P. 56(e). Furthermore, “Rule 56(c) mandates the entry of
summary judgment” if Jackson “fails to make a showing sufficient to establish the
existence of an element essential to fhis] case, and on which [he] will bear the burden of
proof at trial.” Celotex, 477 U.S. at 322.

Before analyzing the parties’ arguments, the Court notes the role and effect of
Local Rule 56.1 in summary judgment proceedings. While Federal Rule of Civil
Procedure 56 governs the parties’ summary judgment obligations, Local Rule 56.1
reflects “an attempt to make the parties’ respective summary judgment obligations
explicit.” See Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994). With
respect to parties opposing summary judgment, such as Jackson, their obligations are set
forth in Local Rule 56.1(b).

Local Rule 56.1(b) requires each party opposing a summary judgment motion to
serve and file a memorandum of law, any materials or affidavits referred to in Fed. R.
Civ. P. 56(e) as well as a concise response to the movant’s statement of facts. This
response should contain “a response to each numbered paragraph in the moving party’s
statement, including, in the case of any disagreement, specific references to the

affidavits, parts of the record, and other supporting materials relied upon” and “a

6



Jackson further reported that he filed criminal theft charges against Zero for the loss of a
planner, grievance schedule, a computer disk as well as the $180 he had in his desk

drawer. (/d.)

4, Mimicking of speech and behavior patterns

During the executive board meeting on March 17, in response to Jackson’s theft
allegations, Zero stated “to leave your money in your office drawer, you’re a stupid
goofball for doing something like that” in a way that mimicked Jackson’s speech and

behavior as an African-American. (Ud. 29.)

5. Termination of employment

As mentioned above, on April 17, 2000, Zero terminated Jackson, McCormick,
Benesch and Pocztowski from their elected positions. (/d. ]31.) While in the
McCormick legal action Jackson and the other plaintiffs had argued they were terminated
for the exercise of their union political rights, see McCormick, 110 F. Supp. 2d at 718,
Jackson presently argues that his termination was in response to his filing of a charge
with the IDHR and that the contemporaneous terminations of McCormick, Benesch and
Pocztowski were merely a pretext used by Zero. (Pl.’s Resp. Def.’s Mot. Summ. J. at 6-

7)

DISCUSSION
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that

5


terminated on April 17, 2000, he was not the only employee terminated as Zero also
terminated McCormick, Benesch and Pocztowski from their elected positions. (Def.’s LR
56.1(a)(3) $31.) McCormick, Benesch and Poeztowski are all Caucasian and were
elected officers of Local 705 like Jackson. (Jd.) As such, they are directly comparable to
Jackson. Accordingly, since McCormick, Benesch and Pocztowski are directly
comparable to Jackson and as Caucasians, are not members of Jackson’s protected class,
Jackson is unable to satisfy this element of his prima facie case.

Because Jackson is unable to establish a prima facie case for race discrimination,
he is unable to shift the burden of production to Local 705 “to show a legitimate, non-
discriminatory reason for its employment action.” Wells, 289 F.3d at 1006. Asa result,
there is no genuine issue of material fact with respect to Jackson’s claim for race

discrimination and the Court turns to Jackson’s hostile work environment claim.

B. Hostile Work Environment

Title VII also prohibits employers from maintaining a hostile work environment.
Cooper-Schut v. Visteon Auto, Sys., 361 F.3d 421, 426 (7th Cir. 2004). “A hostile
environment is one that is ‘permeated with discriminatory intimidation, ridicule and
insult.’” Jd. (quoting Shanoff y. Ill. Dep’t of Human Servs., 258 F.3d 696, 704 (7th Cir.
2001)). In order for Jackson to state a hostile work environment claim under Title VII,
he must demonstrate: “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 environment and create a hostile or abusive working
environment; and 4) there is basis for employer liability.” Jd. (internal quotations

18


other supporting materials relied upon.” LR 56.1(b)(3)(A) (emphasis added). That
Jackson has not met his obligations under Rule 56.1 for a vast majority of his responses
is not lost on Local 705 which argues that the “Union’s statement of facts should be
deemed admitted.” (Def.’s Reply Mem. Supp. Def.’s Mot. Summ. J, at 2-3.)

For example, Jackson’s response to fact number 13 is as follows: “DISPUTED:
Jackson lacks sufficient information to address this point and therefore denies any and
every position herein.” (P1.’s LR 56.1(b)(3)(A) § 13; see also id. J] 34, 38.) Jackson’s
failure to provide any citation to the record in support of his denial of the fact statements
in paragraphs 13-15, 17-18, 22, 25-26, 30, 31, 34, 36, 38 violates the letter of the local
tule, and accordingly, those fact statements are deemed admitted. However, Jackson’s
failure to comply with the requirements of Local Rule 56.1 does not mean that summary
judgment will automatically be granted in favor of Local 705, as the Court must still
“evaluate all facts in the light most favorable [to Jackson], the non-moving party.” See
Austin-Edwards v. Loyola Univ. Med. Ctr., No. 03 C 1915, 2004 WL 1243940, at *2

(N.D. Ill. June 3, 2004).

1 Local 705’s Preclusion Arguments
In support of its motion for summary judgment, Local 705 contends that
McCormick v. Zero, 110 F. Supp. 2d at 719, has a preclusive effect on the present case
under two separate preclusion doctrines: res judicata and judicial estoppel. (Def.’s

Mem. Supp. Mot. Summ. J. at 11-16.) The Court addresses each doctrine in turn.


CONCLUSION
For the reasons set forth above, the Court grants Local 705’s motion for summary

judgment [doc. no, 30-1]. This case is hereby terminated.

SO ORDERED enTeRED; “Vt 2 9 2004

pal bara

HON. RONALD A. GUZMAp/
United States Judge

24


Minute Order Fort

0

United States District Court, Northern District of Illinois

Name of Assigned Judge Ronald A. Guzman Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 2745 DATE 7/29/2004
CASE Bennie Jackson vs. International Brotherhood, etc.
TITLE

[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state bricfly the nature

of the motion being presented.)

(1)

MOTION:

DOCKET ENTRY:

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

(2) a Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due.

(4) im} Ruling/Hearingon___setfor___at

(5) oO Status hearing{held/continued to] [set for/re-set for]on___——s set for at_— .

(6) i) Pretrial conference[held/continued to] [set for/re-set for]on___———ssetfor_ saat

(7) Oo Trialfset for/re-set for] on__at

(8) Oo [Bench/Jury trial) [Hearing] held/continued toa

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OC Local Rule 41.1 COFRCP41(a)(1) OO FRCP41(a)(2)

ao [Other docket entry) | Enter memorandum opinion and order granting Local 705's motion for

summary judgment [doc. # 30-1]. This case is hereby terminated.

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

No notices required, advised in open court.

nti uired.
No notices required. nusber of notices

Notices mailed by judge’s staff.
JUL 30 2004
Notified counsel by telephone. Nin docketed
Docketing to mail notices.

Mail AO 450 form,

dockebagAtepuly initials

Copy to judge/magistrate judge.

UL 3.9 2004

courtroom PO :9 d 62 date maid noice
DL deputy’s Nd 627

initials iOP bag
Datejtime received in
central Cletk’s Office railing deputy initials



Jackson from bringing the present lawsuit.

B. Judicial Estoppel

Local 705 also argues for the application of another preclusion doctrine, judicial
estoppel. Specifically Local 705 argues that “[it] is inconsistent for Bennie Jackson now
to argue that the very same actions which he previously successfully contended were
motivated by union politics were really motivated by race discrimination.” (Def.’s Mem.
Supp. Mot. Summ. J. at 15.)

Under judicial estoppel, “a party that has won a suit on one ground may not turn
around and in another case obtain another judgment on an inconsistent ground.”
Bethesda Lutheran Homes & Servs. v. Born, 238 F.3d 853, 857-58 (7th Cir. 2001).
Judicial estoppel is “intended to prevent improper use of judicial machinery” and as such
“ig an equitable doctrine invoked by a court at its discretion.” New Hampshire v.
Maine, 532 U.S. 742, 750 (2001) (internal quotation and citation omitted). However,
“[i]t is not as if. . . judicial estoppel were something special, something unrelated to
‘ordinary’ estoppel, and perhaps therefore something available in cases to which the
general principles of estoppel would not apply. The only thing special about judicial
estoppel is that the misrepresentation is made to a court.” DeVito v. Chicago Park Dist.,
270 F.3d 532, 535 (7th Cir. 2001). Because judicial estoppel is not unrelated to
“ordinary” estoppel, the Court finds the language in Gjertsen controlling. Thus, because
the Seventh Circuit vacated the district court’s preliminary injunction judgment,
McCormick and judicial estoppel likewise do not bar J ackson from bringing the present
lawsuit.

11



McCormick, 2001 WL 219404, at *3. On remand, the district court’s December 29, 2000
Order dismissed the case as moot without prejudice.

Local 705 contends that “[p]reliminary injunction decisions have the same
preclusive effect, particularly when the circumstances make it likely that the findings are
reasoned and reliable, such as when a court makes detailed findings after a full hearing,
and the findings are appealable.” (Def.’s Mem. Supp. Mot. Summ. J. at 13.) Local 705
further argues that preliminary injunctions have a preclusive effect even when mootness
prevents a full trial on the merits. Jd. However, this argument is not applicable in the
present case as it applies to moot cases issuing preliminary injunctions where the district
court decision has not been vacated by the appellate court.

In the Seventh Circuit, “[a]s a general rule, when a case becomes moot on appeal,
the district court’s decision is vacated in order to make sure that a decision that the loser
was unable to get appellate review of does not have res judicata or collateral estoppel
effect in subsequent litigation between the parties.” Gjertsen v. Bd. of Election Comm'rs
of Chicago, 751 F.2d 199, 202 (7th Cir. 1984), Because the Seventh Circuit vacated the
district court’s preliminary injunction judgment, McCormick does not have res judicata
effect on the present lawsuit. Moreover, when a case is dismissed without prejudice as it
was in McCormick, “‘without prejudice’ is a signal that a dismissal does not have a
preclusive effect in future litigation.” Hill v. Potter, 352 F.3d 1142, 1146 (7th Cir.

2003). Consequently, lacking preclusive effect, McCormick and res judicata do not bar

“This statement is subject to an exception: dismissals for lack of subject matter jurisdiction “are preclusive
with respect to the jurisdictional ruling.” Hill, 352 F.3d at 1147.

10


statement, consisting of short numbered paragraphs, of any additional facts that require
the denial of summary judgment, including references to the affidavits, parts of the
record, and other supporting materials relied upon.” LR 56.1(b)(3)(A)-(B). Failure to
properly meet the requirements to deny a moving party’s statement of facts results in the
moving party’s version of the facts being deemed admitted. LR 56.1(b)(3)(B); see also
McGuire v, United Postal Serv., 152 F.3d 673, 675 (7th Cir. 1998) (noting that “[aJn
answer that does not deny the allegations in the numbered paragraph with citations to
supporting evidence in the record constitutes an admission”).

Strict enforcement of Local Rule 56.1’s requirements has been repeatedly upheld
by the Seventh Circuit as “district courts are not obliged in our adversary system to scour
the record looking for factual disputes.” Waldridge, 24 F.3d at 922. This is so even in
situations where the non-moving party may be able to create genuine issues of material
fact. See Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1102-03 (7th Cir. 1990) (discussing
Local Rule 56.1’s predecessor, Rule 12(m)).

With these principles in mind, the Court notes that Jackson has failed to comply
with his obligations under Local Rule 56.1(b).) Of the forty-nine statements of fact
submitted by Local 705 pursuant to their obligations under Local Rule 56.1(a)(3),
twenty-two are undisputed. The vast majority of Jackson’s responses to the remaining
twenty-seven statements do not meet the requirements of Local Rule 56.1(b)(3)(A) by

providing the Court with “specific references to the affidavits, parts of the record [or]

While the Court mentions Jackson, it recognizes that the failures to follow Local Rule 56.1 do not result
from any shortcomings of Jackson, but those of his counsel.


alleges that the termination from his elected post was in retaliation for the filing of his
charge with the IDHR.’” As with his race discrimination claim, Jackson has two methods
with which to establish a prima facie case of retaliation: the direct method and the

indirect method.

a. Direct Method

Pursuant to the direct method, Jackson must present either direct or circumstantial
evidence showing “a statutorily protected activity, an adverse employment action, and a
causal connection between the two.” Haywood, 323 F.3d at 531. As mentioned above,
direct evidence “requires an admission by the decision-maker that his actions were based
on the prohibited animus,” Radue, 219 F.3d at 616, whereas circumstantial evidence
“allows a jury to infer intentional discrimination by the decisionmaker.” Rogers, 320
F.3d at 753.

As a general rule, there “can be no causal link between protected activity and an
adverse employment action if the employer remained unaware of the protected activity.”
Dey v. Colt Constr, & Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994). It is not disputed
that Jackson engaged in a statutorily protected activity when he filed his charge with the
IDHR. It is further undisputed that the alleged retaliatory action, Jackson’s termination,

constitutes an adverse employment action. At issue is whether Jackson can prove

TJackson’s eviction and reassignment is not properly considered retaliatory as it was made prior to
Jackson’s filing of the charge with the IDHR and was one of the events listed on the charge as discriminatory. See
Def.’s LR 56.1(a)(3) { 11. Even if it were in retaliation, Jackson would be unable to make a prima facie case for
retaliation because, as discussed earlier, the eviction and reassignment cannot be properly considered an adverse
employment action.

21


Illinois Department of Human Rights (“IDHR”). (Def.’s LR 56.1(a)(3) J 11.) In the
charge, Jackson alleged racial harassment and retaliation, mentioning Zero’s distribution
of Jackson’s weekly activity report as an example of a bad report, the eviction’ from his
office and a racial slur. (/d.) The IDHR cross-filed with the Equal Employment
Opportunity Commission (“EEOC”) and on April 28, 2000, Jackson amended his charge,
alleging that his April 17, 2000 termination, which occurred prior to his election loss in
fall 2000, was racially motivated. (/d. 12.) On April 16, 2002, after the EEOC issued
Jackson his right to sue letter on January 17, 2002, Jackson filed the present suit against
Zero and Local 705, alleging various violations of Title VII, race discrimination in
violation of 42 U.S.C, § 1981, retaliation under 42 U.S.C. § 1981, deprivation of his First
Amendment rights in violation of 42 U.S.C. § 1983, as well as defamation. Pursuant to
this Court’s earlier Memorandum Opinion and Order, all counts save Jackson’s Title VII
claims against Local 705 were dismissed. See Jackson v. Int’l Bhd. of Teamsters, Local
Union No. 705, No. 02 C 2745, 2002 WL 31572544, at *9 (N.D. III. Noy. 18, 2002).

In support of his Title VII claims against Local 705, Jackson alleges five specific
factual incidents. (Pl.’s Resp. Def.’s Mot. Summ. J. at 2.) They include allegations
mentioned in Jackson’s IDHR charge, which include the weekly activity report
distribution, eviction and termination, as well as the theft of items due to the eviction and
Zero’s mimicking of Jackson’s speech and behavior patterns. The Court will examine

each below.

2The Court notes that the parties differ in their characterization of the event. Jackson characterizes the
event as an “eviction” while Local 705 contends that it was a “reassignment.”


As plaintiff, Jackson has the burden of establishing a prima facie case for race
discrimination by showing: “(1) he was a member of a protected class; (2) he was
meeting his employer's legitimate expectations; (3) he suffered an adverse employment
action; and (4) other similarly situated employees who were not members of his protected
class were treated more favorably,” Davis, 368 F.3d at 784. An employee who is able to
set forth a prima facie case for race discrimination shifts the burden of production to the
employer “to show a legitimate, non-discriminatory reason for its employment action.”
Wells v. Unisource Worldwide Inc., 289 F.3d 1001, 1006 (7th Cir. 2002). Once the
employer provides such a reason, then burden of production returns to the employee to
show that the employer’s reason is pretextual. Jd. While the burden of production may
shift to the defendant, at all times the burden of persuasion rests with the employee.
Haywood, 323 F.3d at 531.

As an African-American, it is undisputed that Jackson is a member of a protected
class. As is typically the case, the main elements at issue are numbers three and four:
whether Jackson suffered an adverse employment action and whether similarly situated

employees were treated differently.

a. Adverse Employment Action
“Title VII prohibits employers from discriminating against employees with
respect to the ‘terms, conditions or privileges of employment.”” Traylor v. Brown, 295
F.3d 783, 788 (7th Cir. 2002) (citing 42 U.S.C. § 2000e-2(a)(1)). Specifically, Jackson
“must show that [he] suffered a materially adverse employment action,” a factually
dependant determination. Jd. (citing Haugerud v. Amery Sch, Dist., 259 F.3d 678, 691
14


(quoting Grube v. Lau Indus., 257 F.3d 723, 729 (7th Cir. 2001)) (noting that “unfair
reprimands or negative performance evaluations, unaccompanied by some tangible job
consequence, do not constitute adverse employment actions”).

Next, Jackson’s eviction/reassignment, and the resulting theft thereafter do not
constitute adverse employment actions. In Kersting v. Wal-Mart Stores, Inc., 250 F.3d
1109, 1119 (7th Cir. 2001), the Seventh Circuit held the plaintiff, who was a mechanic
working at Wal-Mart, had not established that his employer’s treatment of him
constituted adverse employment actions. The court noted that the plaintiff's assignment
to work in an area known as “the cage,” his subsequent assignment to an area with no
workbench, lighting or outlets, the deprivation of his tool box as well as a prohibition on
using a computer to document parts he used did not constitute adverse employment
actions. See id at 1119 n.2. The court noted that the plaintiff provided “no evidence that
work in the cage involved lower pay [or] different hours,” or that his assignment to an
area with no workplace, lighting or outlets was inadequate. Jd. Further, “(rJegarding his
claim that he was deprived of his tool box, [the court noted that the plaintiff presented]
no evidence to indicate who deprived him of his tool box and why and whether that
action also deprived him of the ability to complete his work...” Id.

Similar to the plaintiff in Kersting, Jackson has provided no evidence that his
work in the cubicle involved lower pay or different hours or constituted a “materially
adverse change in the terms and conditions of employment [that is] more disruptive than
a mere inconvenience or an alteration of job responsibilities.” Cerros, 288 F.3d at 1044
(citation omitted). He has not alleged that the cubicle was inadequate. Also, similar to

the plaintiff in Kersting, Jackson provided no evidence (in the manner required of him by

16



Secretary-Treasurer.' (/d.)

In approximately November 1999, Jackson became politically aligned with John
McCormick (“McCormick”), Ed Benesch (“Benesch”) and Steve Pocztowski
(“Pocztowski”). (Ud. | 10.) Each was an elected officer of Local 705 who in previous
elections ran alongside Zero but opposed Zero’s re-election in Local 705’s fall 2000
elections. (/d.) On April 17, 2000, Zero terminated Jackson, McCormick, Benesch and
Pocztowski from their elected positions, (/d. 431.) Shortly thereafter, on May 12,
Jackson, McCormick, Benesch and Pocztowski filed suit in the U.S. District Court for the
Northern District of Illinois, alleging that their terminations constituted an illegal
retaliation against them for their union political activities in violation of the Labor
Management Reporting and Disclosure Act, 29 U.S.C. § 412. (id. 44.) On May 18,
District Judge Milton Shadur issued a temporary restraining order, restoring Jackson ef
al. to their elected posts. McCormick v. Zero, 110 F. Supp. 2d 716, 719 (N.D. Ill. Aug.
23, 2000). A preliminary injunction was issued on August 23, 2000, see id. at 716, but
following Zero and Local 705’s appeal, the Seventh Circuit vacated the judgment of the
district court and remanded the case for the district court to dismiss the case as moot
because during the pendency of the appeal, Jackson et al. were defeated by Zero and his
slate of candidates in the fall 2000 election. See McCormick v. Zero, No. 00-3263, 2001
WL 219404, at *3 (7th Cir. 2001); Def.’s LR 56.1(a)(3) 10.

On March 31, 2000, Jackson filed a charge against Zero and Local 705 with the

‘An elected position, Local 705’s Secretary-Treasurer is the principal executive officer for the union. See
McCormick v. Zero, 110 F. Supp. 2d 716, 722 (N.D. Ill. Aug. 23, 2000).


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

BENNIE JACKSON,

Plaintiff,
Judge Ronald A. Guzman
v.
02 C 2745
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, LOCAL UNION
NO. 705, AFL-CIO,

weerveveyerwverve ere we YS

Defendant.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant International Brotherhood of

Teamsters, Local Union No. 705’s (“Local 705”) motion for summary-judgment. , For. th

reasons set forth below, Local 705’s motion is granted. eevrrce
. OG & ays PUB.

JUL 86 20040
BACKGROUND

The following facts are undisputed or have been deemediadmni {

ed pursuant to ~. »
SE ae Fs i a sad

Local Rule 56,1. Local 705 is a Chicago area labor union comprising approximately
20,000 members employed in various aspects of the trucking industry. (Def.’s LR
56.1(a)(3) { 1.) Plaintiff Bennie Jackson (“Jackson”), an African-American male, was
employed by Local 705 from 1994 until 2000, as a business agent/union representative.
(dd. {§ 8-9.) In addition to his role as a business agent/union representative, Jackson also
was elected in 1995 and 1997 as Local 705’s Recording Secretary. (/d. 49.) In these

elections, Jackson ran on a candidacy slate headed by Gerald Zero (“Zero”), Local 705’s


The preclusion doctrines of res judicata and judicial estoppel are inapplicable in
the present case. Accordingly, the Court turns to the merits of Jackson’s Title VII

claims.

Il. Jackson’s

itle VI Claims
Pursuant to Counts I and III of his Complaint, Jackson seeks to hold Local 705
liable under Title VII of the Civil Rights Act for race discrimination, hostile work

environment and retaliation. The Court analyzes each claim in turn.

A. Race Discrimination/Disparate Treatment
Title VII prohibits employers from discharging or discriminating against any
individual with respect to his or her “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). As plaintiff, Jackson has two methods available to him to
prove employment discrimination under Title VII: the direct and indirect methods. See

Cerutti v. BASF Corp., 349 F.3d 1055, 1060 (7th Cir, 2003).

1, The Direct Method

Under the direct method, Jackson “may show, by way of direct or circumstantial

>The Seventh Circuit employs “essentially the same analytical framework to employment discrimination
cases whether they are brought under the ADEA, Title VII, or § 1981.” Cerutti, 349 F.3d at 1060 n.4; see also
Williams v. Waste Mgmt. of Ill., Inc., 361 F.3d 1021 (7th Cir. 2001) (noting that “Section 1981 claims are evaluated
under the same rubric as Title VII claims”), Thus, even if Jackson’s section 1981 claims had survived the motion to
dismiss earlier in this litigation, these claims would have been treated the same as his Title VII claims.

12


(7th Cir. 2001)). While Title VII does not overtly define “adverse employment action,”
see Wei v. Chicago State Univ., No. 01 C 7509, 2003 WL 22048081, at *5 (N.D. Ill. Aug.
29, 2003), the Seventh Circuit “has defined an adverse employment action as a
‘materially adverse change in the terms and conditions of employment [that is] more
disruptive than a mere inconvenience or an alteration of job responsibilities.’” Cerros v.
Steel Techs., Inc. 288 F.3d 1040, 1044 (7th Cir. 2002) (quoting Stockett v. Muncie Ind.
Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000)).

As discussed above, Jackson alleges five specific factual instances in support of
his race discrimination claim. They include the weekly activity report distribution,
Jackson’s eviction and reassignment from his office, the theft of personal items following
the eviction, Zero’s mimicking of Jackson’s speech and behavior patterns as well as
Jackson’s termination from employment.

Applying the Seventh Circuit’s definition of adverse employment action, it is
clear that Zero’s distribution of Jackson’s weekly activity report as a poor example of
such a report, Jackson’s eviction from his office and reassignment to a cubicle, the theft
resulting from Jackson’s eviction and Zero’s mimicking of Jackson’s speech and
behavior do not fit within this definition as these instances neither changed the terms and
conditions of Jackson’s employment nor presented anything more than a mere
inconvenience.

First, the distribution of Jackson’s report, which was used to illustrate an incorrect
example and was unaccompanied by a tangible job consequence, see Def.’s LR
56.1(a)(1) § 17, does not constitute an adverse employment action. See, e.g., Volovsek v.
Wis. Dep't of Agric., Trade, & Consumer Prot., 344 F.3d 680, 688 (7th Cir. 2003)

15