race by paying him less than similarly situated Caucasian employees, and by failing to increase
Cox’s wage when he transferred to the night shift. In his charge of discrimination, Cox indicated
that his address was 1923 E. 93rd, 1st Fl., Chicago, Illinois 60617 (the “East 93rd Street
Address”). Subsequent to filing his charge of discrimination, Cox moved two additional times;
1) In 1997, to 1814 W. 79th Street, Chicago, Illinois 60636 (the “West 79th Street Address”);
and 2) In August 2000, to 11752 S. Watkins, Chicago, Illinois 60643 (the “South Watkins
Address”),

On October 1, 2001, the EEOC issued Cox a Dismissal and Notice of Rights Letter
(‘Right to Sue Letter” or “Letter”). The EEOC sent Cox’s Right to Sue Letter by certified mail
to his East 93rd Street Address. (Pltf’s. Response to Def.’s Rule 56.1 Facts, Exhibit 5).> The
post office attempted to deliver the Letter to Cox at the East 93rd Street address on October 20,
2001 and October 31, 2001. Id. On November 5, 2001, the post office returned the Letter to the
EEOC as undeliverable, Id.

On December 28, 2001, Cox went to the EEOC’s 500 West Madison Street, Suite 2800,
Chicago, Illinois 60661 office to inquire about his Right to Sue Letter. (Cox Dep. Tr., pp.12-13).
Cox discovered that the Letter was returned to the EEOC as undeliverable. Id. Cox picked up his
Letter that same day. On March 21, 2002, Cox filed a complaint alleging race discrimination
(“Complaint”) against Home Depot in this Court. Cox’s Complaint alleged that Home Depot
discriminated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

1981.

*Pitf’s Response to Def.’s Rule 56.1 Facts” refers to Plaintiff's Response to Defendant’s
Rule 56.1 Statement of Material Facts, dated May 12, 2003.

4.


show that another person, similarly situated but not of the protected class, was treated more
favorably. See McDonnell- Douglas, 411 U.S. at 802. “To meet her burden of demonstrating
that another employee is ‘similarly situated’, a plaintiff must show that there is someone who is
directly comparable to her in all material respects.” Patterson vy, Avery Dennison Corporation,
281 F.3d 676, 680 (7th Cir. 2002) (citing Greer v. Board of Educ., 267 F.3d 723, 728 (7th Cir.
2001); Radue v. Kimberly-Clark Corp., 219 F. 3d 612, 618 (7th Cir. 2000); Spath v. Hayes
Wheel Int’1-Ind., Inc., 211 F.3d 392, 396 (7th Cir 2000)). A court can consider whether

we

employees had similar, ““* experiences, education, and qualifications, and whether the employer
took those factors into account when making the personnel decision in question’.” Patterson,
281 F.3d at 680 (citing Radue, 219 F.3d at 618). In order to determine whether Cox was
similarly situated with Tabel, Ritter, and Kopfman, the Court will compare Cox’s prior
employment history with the prior employment histories of these three individuals.

a. Cox’s Employment History Prior to Home Depot?

Prior to his initial employment with Home Depot in 1996, Cox worked for five months as

a fundraiser with Illinois Public Action. (See Def. Supp. App, Exhibit C).6 Prior to that

5In an Affidavit filed with this Court on September 5, 2003, Cox, for the first time,
alleges that he has five years of home improvement experience, working under the direction of an
individual named Jesse Davis. (Cox Aff. ff 6,7). Other than his affidavit, Cox offers no proof
of this employment experience, and this experience was not mentioned in Cox’s deposition,
despite numerous questions concerning his prior employment history. “ A plaintiff cannot create
an issue of material fact merely by manufacturing a conflict in his own testimony by submitting
an affidavit that contradicts an earlier deposition.” Piscione v. Emst & Young L.L.P., 171 F.3d
527, 532-33 (7th Cir. 1999) (citing Darnell v. Target Stores, 16 F.3d 174, 176 (7th Cir. 1994)).
Therefore, due to insufficient evidence, the Court will not consider Cox’s alleged five years of
experience of home improvement for Jesse Davis.

“Def. Supp. App.” refers to the Defendant’s Supplemental Appendix of Exhibits in
Support of its Motion for Summary Judgment.

-9-


“The burden of providing the EEOC with changes of address is minimal. It is unreasonable to
expect the EEOC to pore over its files and those of state administrative agencies, in an effort to
ascertain which of the addresses contained therein is correct.” St. Louis v. Alverno College, 744
F.2d 1314, 1316-17 (7th Cir. 1984).

Finally, the Plaintiff argues that dismissal for failure to file in a timely matter would be
harsh, due to the fact he was a pro se litigant at that time, and that principles of equitable tolling
should apply. However, the plaintiff in Alvemo was a pro se litigant as well, and the court held

that the plaintiff in Alverno, even as a pro se litigant, had the obligation to fulfill the minimal

burden of notifying the EEOC of any address changes. Id. Although Cox may have sincerely
believed that the IDHR would notify the EEOC of subsequent address changes, the burden to
notify the EEOC of address changes rested with him. Cox was obligated to directly notify the
EEOC, and not to rely upon the IDHR. Therefore, this Court finds that the Plaintiff's Complaint

in this Court is untimely and barred under 42 U.S.C. § 2000¢-5(f)(1).

Il. Home Depot’s Motion for Summary Judgment For Failure to Prove Prima Facie Case‘
A. Summary Judgment Standard
Summary judgment is appropriate only “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

‘Although the Court’s ruling that the Plaintiff's lawsuit is untimely and barred terminates
Home Depot’s second Summary Judgment Motion, the Court will still analyze and address the
parties’ briefs and arguments on whether the Plaintiff established a prima facie case of
employment discrimination.

6-


B. Standard for Timeliness
Home Depot argues that Cox’s filing of his Complaint in this court is untimely, and

therefore barred, because he failed to file his lawsuit 90 days after the last attempted delivery of
his Right to Sue Letter. Under Title VI, a Plaintiff must file a complaint within 90 days of
receiving notice from the EEOC of the right to sue. 42 U.S.C. § 2000¢-5(f(1). This 90 day
period commences when the claimant receives actual notice of the right to sue. Jones v. Madison
Serv. Corp., 744 F.2d 1309, 1312 (7th Cir. 1984). However, “the actual notice rule does not
apply to plaintiffs who fail to receive actual notice through their own fault.” Houston v, Sidley &
Austin, 185 F.3d 837, 839 (citing St. Louis v. Alverno College, 744 F.2d 1314, 1316-17 (7th Cir.
1984).

Cox filed his Complaint in this Court on March 21, 2002, 141 days from the last
attempted delivery of his Right to Sue Letter at the East 93rd Street address, the last address the
EEOC had on file for Cox. The Plaintiff argues that because he did not receive actual notice of
his Right to Sue Letter until December 28, 2001, that should be the date from which he had 90
days to file his complaint. Therefore, Cox argues, his suit is timely filed. However, Cox’s
failure to receive his dismissal notice until December 28, 2001 was due to his failure to inform
the EEOC of subsequent address changes. The Plaintiff's suit was untimely and therefore barred
under 42 U.S.C. § 2000e-5(f)(1).

Cox argues that he believed that the IDHR would notify the EEOC of Cox’s subsequent
address changes. However, Cox signed an agreement which clearly stated that he was to notify
both agencies, the IDHR and EEOC, of any address changes. Moreover, it is not the

responsibility of the IDHR to notify the EEOC of subsequent changes in a claimant’s address.

5.


of racial discrimination by a preponderance of the evidence. Sample v. Aldi, Inc., 61 F.3d 544,
547 (7th Cir. 1995). Without a prima facie case, Cox cannot withstand summary judgment.

See Gilty v. Village of Oak Park, 919 F.2d 1247, 1250 (7th Cir. 1990). To do so, Cox must show
(1) he is a member of a protected class (2) his job performance met Home Depot’s legitimate
expectations, (3) he suffered an adverse employment action, and (4) that another person,
similarly situated but not of the protected class, was treated more favorably. Stockett v. Muncie

Indiana Transit System, 221 F.3d 997, 1000-02 (7th Cir. 2000); Geier v. Medtronic, Inc., 99 F.

3d 238, 241 (th Cir. 1996). Once a plaintiff has made this showing, there is a presumption that
he was discriminated against, and the employer must come forward with a legitimate, non-
discriminatory reason for the employment action. See McDonnell Douglas, 411 U.S. at 802.

Cox alleges, as an African-American man (a member of a protected class), that his job
performance met Home Depot’s legitimate expectations, and that his hourly wage was less than
that of his non-A frican-American co-workers, who were similarly situated. Cox alleges that
Terrence Tabel (“Tabel”), John Ritter (“Ritter”), and Kenneth Kopfman (“Kopfman”), who all
worked the night shift with Cox, were similarly situated to him, and that these individuals, who
are Caucasian, were paid more than Cox because of their race. Cox has shown that he is a
member of a protected class, his job performance met Home Depot's legitimate expectations, and
that he was paid less than three Caucasian employees. In order to determine whether Cox has
established a prima facie case of employment discrimination, this Court will analyze whether
Cox was similarly situated to Tabel, Ritter, and Kopfman.

1. Standard For “Similarly Situated”

Under the fourth prong of the McDonnell-Douglas burden shifting test, a plaintiff must

~8-



Kk

»

Minute Order Form (0697)

an

2

United States District Court, Northern District of Mlinois

Name of Assigned Jud; i Sitting Judge If Other |
ene Magistrate Indge David H. Coar thaw Assigned Judge
CASE NUMBER 02 C 2051 DATE 10/7/2003
CASE Michael L. Cox vs. Home Depot U.S.A., Inc.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
Defendant’s Motions for Summary Judgment [27-1] and [51-1]

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

(2) Oo Brief in support of motion due
@) ao Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at
() oO Trial[set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) (Local Rule 41.1 OFRCP41(a){1) [ FRCP41(a)(2).
ao =f [Other docket entry] For the reasons stated in the attached memorandum opinion and order, the
Defendant’s Motions for Summary Judgment [27-1] and [51-1] are GRANTED in their entirety. Allother
pending motions are moot and terminated. This case is closed.
(il @ [For further detail see order attached to the original minute order.)
No notices required, advised in open court. Document
;/ .Namber
No notices required. umber oto Boy
Notices mailed by judge's staff.
tes iled by judge's s OCT - B on
Notified counsel by telephone. * a
X_ | Docketing to mail notices.
X_ | Mail AO 450 form. docteting
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Copy to judge/magistrate judge. yunod aris!
courtroom _ 190 60 date mailed notice
sif (Ie) deputy’s oo 8 Ud L-k
initials srt
Datetime received in
central Clérk’s Offiges ‘mailing deputy iitialy



As such, he was employed with Home Depot for over one year when Cox became a Night Crew
Associate, Based on Home Depot’s Associate Pay Policies, it was customary for individuals who
were employed with Home Depot for at least one year to receive a pay raise. (Def. Supp. App.,
Exhibit C), Since Cox was only with Home Depot for a few months when he became a Night
Crew Associate, Cox cannot be considered similarly situated to Kopfman. Furthermore, prior to
his employment at Home Depot, Kopfman worked for a direct competitor of Home Depot for
three years. (Def. Supp. App., Exhibit J). Therefore, Cox’s argument that he was similarly
situated to Kopfiman fails.

C. Pretext

Once an employer provides a legitimate, nondiscriminatory reason for the adverse
employment action, the plaintiff must establish by a preponderance of the evidence that the stated
reason was a pretext for discrimination. The Court’s inquiry into pretext focuses not on the
actual occurrence of the alleged acts but “whether the employer honestly believes in the reason it
offers.” Kralman v. Illinois Department of Veteran’s Affairs, 23 F.3d 150, 156 (7th Cir. 1994)
(citing McCoy v. WGN Cont’! Broad, Co., 957 F.2d 368, 373 (7th Cir.1992)): see also Timm v.
Mead Corp., 32 F.3d 273, 275 (7th Cir. 1994).

The Court finds that no reasonable jury could determine that the reason Home Depot
offered for failing to pay Cox more than $6.00 an hour was merely pretext. Home Depot
honestly believed, based on their knowledge of Cox’s employment history at the time, that he
lacked sufficient experience to pay him more than $6.00 per hour when he was rehired in
October of 1996. Furthermore, Home Depot has a general policy of not increasing the salary of a

new associate until they are with Home Depot for a year. (Def. Supp. App., Exhibit C).

-ll-


experience, from July 1990 until October 1993, Cox spent three years as a forklift operator for
Temple Inland in West Memphis, Arkansas. Id. From approximately October of 1987 until July
of 1990, Cox was a Dairy Manager with Big Star Grocery, also located in West Memphis,
Arkansas. Id. Finally, in the time between his termination and rehire by Home Depot
(approximately five months), Cox was self-employed, and engaged in light paint work. Id. The
Court will now address whether Cox’s prior employment experiences deemed him similarly
situated to Tabel, Ritter, and Kopfman.

b. Cox’s Employment History Compared With Relevant Work

Experiences of Tabel, Kopfman, and Ritter

This Court finds that Cox was not similarly situated to Terrence Tabel. Prior to
commencing his employment with Home Depot in 1995, Tabel was employed for five years with
a direct competitor of Home Depot . (See Def. Supp. App., Exhibit J). Furthermore, Tabel was a
night shift supervisor when Cox was employed as an associate during the night shift. Asa
supervisor, Tabel was not similarly situated to Cox, who was an associate. Therefore, Cox
cannot be considered similarly situated to Tabel.

Secondly, this Court finds that Cox and John Ritter were not similarly situated. Prior to
his employment with Home Depot, Ritter was employed for six years with a decorating company
as a painter. (Def. Supp. App., Exhibit J). Cox had only infrequent house painting experience,
and his experience as a forklift operator was not in the home improvement industry. Therefore,
Home Depot could reasonably determine that Cox and Ritter were not similarly situated.

Finally, this Court finds that Kenneth Kopfman and Cox were not similarly situated.

Kopfman was employed with Home Depot since October of 1995. (Def. Supp. App., Exhibit J).

-10-



of law.” Fed. R. Civ. Pro. 56(c); see also Schmidt v. Ottawa Medical Center, P.C., 322 F.3d 461,

463 (7th Cir. 2003). When evaluating a motion for summary judgment, the Court views the
evidence in the light most favorable to the non-moving party and makes all reasonable inferences
in her favor. See Haywood v. Lucent Technologies, 323 F.3d 524 (7th Cir. 2003). The Court

accepts the non-moving party’s version of any disputed facts but only if it is supported by

relevant, admissible evidence. Bombard v. Fort Wane Newspapers, Inc., 92 F.3d 560, 562 (7th
Cir. 1996).

It is the moving party’s burden to demonstrate the absence of genuine issues of material

fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hedberg v. Indiana Bell Tel.

Co., 47 F.3d 928, 931 (7th Cir. 1995). If the moving party meets this burden, the non-moving
party must set forth specific facts that demonstrate the existence of a genuine issue for trial. Rule

56(e); Celotex, 477 U.S. at 324. To successfully oppose the motion for summary judgment, the

non-moving party cannot rest on the pleadings alone, but must designate specific facts in
affidavits, depositions, answers to interrogatories or admissions that establish that there is a
genuine triable issue. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

B._Analysis

A claim of discrimination may be established in one of two ways—under the direct method
or the indirect burden-shifting method set forth in McDonnell Douglas v. Green, 411 U.S. 792,

93 S. Ct. 1817, 36 L.Ed.2d, 668 (1973). See Haywood v. Lucent Technologies, 323 F.3d 524

(7th Cir. 2003).
Because Cox has not provided any evidence of direct discrimination, this Court will

employ the McDonnell-Douglas burden shifting test. Cox must first establish a prima facie case

-7-


Associate, after a request from Tracey Benson (“Benson”), the Assistant Store Manager
responsible for night crew workers. (Cox. Dep. Tr., pp. 40-42). Cox’s primary responsibilities
on the night shift included operating a forklift, reach truck, and order pickers, in order to move
merchandise. (Pl. Addtl. Facts, 4/7).? Cox believed that this move to the night shift would result
in a subsequent pay raise. (Cox Dep. Tr., pp. 42-44). However, Cox’s pay rate Temained at
$6.00 per hour. On numerous occasions, the Plaintiff asked Benson about a pay increase, which
Cox believed was part of the compensation for night shift associates. (Cox. Dep. Tr. pp. 44-51).
These conversations did not result in a pay raise for Cox.

Subsequently, Cox approached Mark Glasco (“Glasco”), the Store Manager, to inquire
about a pay increase. Cox’s conversations with Glasco did not result in a pay raise. (Cox Dep.
Tr., pp. 52-53). Cox had one final meeting with Charles Walker, the distribution manager of
Home Depot. (Cox Dep. Tr., pp. 55-56). As with the other meetings that Cox had with Home
Depot managers, this meeting did not result in a pay raise for Cox. Id. On June 10, 1997, Cox

voluntarily terminated his employment with Home Depot.

IL. Home Depot’s Motion for Summary Judgment For Failure to File A Timely Claim

A. Procedural Background

On July 29, 1997, Cox filed a charge of discrimination with the Illinois Department of
Human Rights (“IDHR”). Cox’s charge of discrimination was cross-filed with the EEOC. Cox’s

charge of discrimination alleged that Home Depot discriminated against him on the basis of his

2«p]_ Facts”refers to Plaintiff Cox’s Local Rule 56.1(b)(3)(B) Statement of Additional
Facts that Require Denial of Defendant Home Depot U.S.A.’s Motion for Summary Judgment.

3-



I. Factual Background

Unless otherwise noted, the following facts are undisputed and are taken from the parties’
Local -Rule 56.1 materials. Cox is an African-American man who worked for Home Depot for
two different periods; (1) April 5, 1996 until May 23, 1996; and (2) October 7, 1996 until June
10, 1997. Defendant Home Depot is an out-of-state corporation that operates home improvement
stores throughout the Chicago land area.

A. Cox’s Initial Employment With Home Depot (April and May of 1996)

On April 5, 1996, Cox began his employment with Home Depot as a part-time Lot
Associate, earning $6.00 per hour. Cox’s primary responsibilities included assisting customers
with merchandise, and loading and retrieving carts from Home Depot’s parking lot. (Cox Dep.
Tr. p. 35).! Home Depot terminated Cox’s employment on May 23, 1996, due to Cox’s
unauthorized use of a forklift, which resulted in damage to Home Depot property.

B. Cox’s Second Employment Period With Home Depot (October 1996-June 1997)

Cox re-applied for employment with Home Depot on or around October 7, 1996, as he
was eligible for rehire. On October 7, 1996, Home Depot rehired Cox as a full-time associate in
the Floor & Wall Department, at a pay rate of $6.00 per hour. On November 4, 1996, Cox
transferred to Home Depot’s Electrical Department, Cox’s primary responsibility in the
Electrical Department was to assist customers in locating the appropriate electrical outlets for
holiday lighting. (Cox. Dep. Tr, pp.38-39). Cox’s pay rate remained at $6.00 per hour.

On February 10, 1997, Cox transferred from the Electrical Department to Night Crew

“Cox Dep. Tr.” refers to the Deposition Transcript of Michael L. Cox.
-2-


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

EASTERN DIVISION Lbielat ad
DOtEeT73
MICHAEL L. COX, ) OCT ~ 8 2093
) No. 02 C 2051
)
Plaintiff )
) HONORABLE DAVID H. COAR
)
)
v. )
)
)
HOME DEPOT U.S.A., Inc., )
)
)
Defendant y

Memorandum Opinion and Order

Plaintiff Michael Cox (“Plaintiff” or “Cox”) is suing his former employer, Home Depot U.S.A.,
Inc. (“Home Depot”), alleging race discrimination in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 1981. Before this Court are Home Depot’s Motions for Summary
Judgment alleging that; (1) Cox’s Complaint is untimely and therefore barred under the Equal
Employment Opportunity Commission (“EEOC”) 90-day filing requirement; and (2) Cox fails to
establish a prima facie case of employment discrimination. For the following reasons, the Court

GRANTS Home Depot’s motions for summary judgment in their entirety.

-  Q


Finally, Cox argues that he was told that Home Depot provided a higher base salary to
workers on the night shift. However, Cox provides no evidence of this policy other than
describing conversations with Assistant Store Manager Benson. This is not sufficient evidence
to conclude that Home Depot did have a higher base salary for night workers which it denied
Cox, who is African-American, yet Home Depot paid that night incentive to Caucasian night
associates. Through affidavits, declarations and presentation of its salary policies, Home Depot
has provided sufficient evidence to show that there was no general policy of providing a higher
base pay to night associates. Home Depot has also provided sufficient evidence to show that,
because of Cox’s lack of home improvement experience, the company had a legitimate reason for

keeping Cox’s pay at $6.00 per hour.

IV. Conclusion
Cox’s claim is untimely and barred under 42 U.S.C. § 2000e-5()(1). Furthermore, Cox
fails to establish a prima facie case of employment discrimination. Therefore, the Court

GRANTS Home Depot’s Motions for Summary Judgment. This case is closed.

“Deceit (be.

David H. Coar

United States District Judge

Dated: October 7, 2003

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