were treated more favorably.” Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002).
If a prima facie case is established, then there is a rebuttable presumption of
discrimination and the employer is required to offer a “legitimate, non-discriminatory
reason for the adverse employment action.” Cianci v. Pettibone Corp., 152 F.3d 723,
726 (7th Cir. 1998). If the employer provides such a reason, the plaintiff must then
show that the reason alleged by the employer is merely a pretext for discrimination.
Id.

Mendenhall has not provided sufficient evidence to proceed under the direct
approach and thus he will need to turn to the indirect approach. Mendenhall’s race
discrimination arguments are deficient because they do not sufficiently focus on any
of the alleged adverse employment actions taken against him. Instead Mendenhall’s
brief jumps back and forth between a variety of alleged adverse employment actions
taken against him. This results in a patchwork of arguments touching momentarily on
each of the above mentioned four elements. For example, Mendenhall asserts that he
was terminated by Jones and he argues that Jones’ reason for firing him was a pretext.
However, he does not provide evidence to show that similarly situated employees
outside the protected class that were working too slow or whose work performance was
poor were not disciplined. Mendenhall complains about Reyes not being disciplined

for his poor work performance when Reyes was caught reading in the bathroom, but

-13-


LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most
favorable to the nonmoving party, reveals that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c). In seeking a grant of summary judgment, the moving party must identify
“those portions of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any’ which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied
by presenting specific evidence on a particular issue or by pointing out “an absence of
evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325. Once the
movant has met this burden, the non-moving party cannot simply rest on the allegations
in the pleadings, but, “by affidavits or as otherwise provided for in [Rule 56], must set
forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P.
56(e). A “genuine issue” in the context of a motion for summary judgment is not
simply a “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of
material fact exists when "the evidence is such that a reasonable jury could retum a

verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

-4-



Also, the Seventh Circuit has recently addressed the pretext analysis in
Millbrook v. IBP, Inc., 280 F.3d 1169, 1180-81 (7" Cir. 2002). In Millbrook the court
held that, where an employer presents as its legitimate non-discriminatory reason for
not promoting a plaintiff that the employer promoted the best qualified applicant, the
qualifications of the chosen individual and the plaintiff are not evidence of pretext
except where the “differences are so favorable to the plaintiff that there can be no
dispute among reasonable persons of impartial judgment that the plaintiff was clearly
better qualified.” Id. (quoting Deines v. Texas Dept. of Protective and Regulatory
Services, 164 F.3d 277 (5" Cir. 1999)). Stated another way, the qualifications are not
evidence of pretext unless the plaintiffs credentials “are so superior . . . that no
reasonable person” could have chosen the other person over the plaintiff. Id.

Jones stated she reviewed the résumés of the applicants for the lead position and
that Reyes was the best qualified. According to Jones, Reyes had years of work
experience in a leader role. Mendenhall claims that he was better qualified because he
spoke English more fluently than Reyes. Mendenhall has not shown that his
qualifications were so superior that a reasonable person could not have chosen Reyes
instead of him. Neither has he offered any other evidence that would be sufficient to
establish that Jones’ reason was a pretext. Therefore, Mendenhall has failed to show

that the reason Jones gave for assigning Reyes to the lead position was a pretext.

-17-


Mueller argues that Mendenhall does not have sufficient evidence to show a
hostile work environment. Undez Title VII an employer is prohibited from maintaining
a workplace that is permeated with “discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive work environment ....” Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993) (citations omitted)(quoting Meritor Savings Bank, FSB v.
Vinson, 477 U.S. 57, 65-67 (1986)). Factors considered in determining whether there
is a hostile work environment include: 1) the “frequency of discriminatory conduct,”
2) “its severity,” 3) whether conduct is “physically threatening or humiliating” or
merely offensive, 4) whether conduct “unreasonably interferes with [the plaintiff's]
work performance,” and 5) the “social context in which events occurred.” Hilt-Dyson
v. City of Chicago, 282 F.3d 456, 463 (7th Cir. 2002); Cerros v. Steel Techs., 288 F.3d
1040, 1045-46 (7th Cir. 2002). The plaintiff must show that he subjectively found the
work environment hostile or abusive and that a reasonable person would have found
it to be hostile or abusive. Hilt-Dyson, 282 F.3d at 463. The plaintiff must also show
that the harassment was based on a characteristic that placed the plaintiff within a
protected class and that there is some basis to hold the employer liable for the
harassment. Cerros, 288 F.3d at 1045. An employer is generally strictly liable for

harassment initiated by a supervisor, Mason v. Southern Illinois Univ. at Carbondale,


responses to show that the issue of whether Mendenhall called Covarubbias and Reyes
names is undisputed, but Mendenhall’s 56.1(b) responses do not prove that point.
Mueller apparently misunderstands the purpose of a motion for summary
judgment. At times Mueller gives recognition only to the evidence that supports his
position and fails to recognize legitimate factual disputes. A summary judgment
motion is not a trial on the merits and Mueller is only entitled to summary judgment
if there is no genuine dispute as to material facts and if no reasonable jury could find
for Mendenhall. Insolia v Philip Morris, Inc., 216 F.3d at 599. One example of
Mueller’s selective recognition is where Mueller claims on the first page of its reply
that it is “undisputed” that the graffiti in the warehouse was removed each time within
a day or two after it appeared. However, Mendenhall and Peart indicated that the
graffiti remained untouched for months after it appeared. Again a close look at
Mueller’s statement of facts and Mendenhall’s response, which Mueller cites, shows
that Mendenhall admitted that several employees at the Addison location, from whom
Mueller has obtained affidavits, have “confirmed” that the graffiti was removed within
a day or so after it appeared. Mueller did not assert and Mendenhall did not admit that
the graffiti was in fact removed that quickly. It is plain that the amount of time it took
Jones to remove graffiti after it appeared in the warehouse is a legitimately contested

issue.


(1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court
must consider the record as a whole in a light most favorable to the nonmoving party
and draw all reasonable inferences that favor the nonmoving party. Anderson, 477
U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).
DISCUSSION

Mueller states on the first page of its reply that it is “undisputed” that, although
Covarubbias and Reyes allegedly called Mendenhall names, Mendenhall called
Covarubbias and Reyes names as well. Mueller attempts to use this assertion to argue
that, since Mendenhall participated in the name calling, he was partially responsible
for the hostile work environment. It is not clear if Mueller purposely tried to deceive
the court, but a close look at the 56.1 statements and responses shows that Mueller has
not offered evidence to support its assertion or show that it is undisputed. In Mueller’s
56.1 statement of facts, Mueller asserts that Mendenhall’s coworkers Carlos Chavez
and Reyes “stated” that they heard Mendenhall call Covarubbias names, and Mueller
supports the statement of fact with citations to the Chavez and Reyes affidavits.
Mueller also asserts in its statement of facts that Covarubbias “testified” that
Mendenhall called him names. Mendenhall, in his responses to Mueller’s statement
of facts, admits that the facts alleged by Mueller were consistent with the affidavits and

depositions of the above mentioned persons. Mueller cites Mendenhall’s 56.1(b)

-5-



CONCLUSION
Based on the foregoing analysis we grant the motion for summary judgment on
the race discrimination claim. We deny the motion for summary judgment on the

retaliation claim and the hostile work environment claim. All pending motions are

tendered moot.

Charles P. Kocoras

Chief Judge

United States District Court
Dated: SAN 27 2003

-18-



derogatory actions”, the charge alleges that he was wrongfully suspended and
eventually terminated. Although, Mendenhall did not check the box entitled
“retaliation” on the EEOC charge form, the retaliation claim is encompassed within the
language of the charge written by Mendenhall, or at the very least, the retaliation claim
is like and reasonably related to the factual allegations included within the EEOC
charge. The retaliation claim involves parties and conduct that are mentioned in the
EEOC charge and thus the retaliation claim is within the scope of the allegations in the
EEOC charge. Therefore, we deny the motion for summary judgment on the retaliation
claim.
Il. Time Barred Allegations

In Illinois an employee must file an EEOC charge within 300 days of the alleged
discriminatory conduct or else any claims based on that conduct will be time barred.
Bilow v. Much Shelist Freed Denenberg Ament & Rubenstein, P.C.,277 F.3d 882, 893
(7th Cir. 2001). Mendenhall filed his EEOC charge on August 31, 2001. Mueller
argues that Mendenhall cannot base his discrimination or harassment claims on
conduct such as the disciplinary action taken against Mendenhall in June 2000 for
working too slowly and the disciplinary action taken against Mendenhall on October
24, 2000 for spending too much time in the bathroom. We agree.

II. Hostile Work Environment


*
Minute Order Form (06/97)
.

United States District Court, Northern District of Ilinois

Name of Assigned Jud; Sitting Judge if Other
or Magistrate Fudge Charles P. Kocoras than Astigued Judge
CASE NUMBER 01 C9740 DATE 1/27/2003
CASE Mendenhall vs. Mueller Streamline Co.
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.]
DOCKET ENTRY: ‘
(1) oO Filed motion of [ use listing in “Motion” box above.]
(2) i) Brief in support of motion due
@) Oo Answer brief to motion due. . Reply to answer brief due .
(4) a Ruling/Hearing on _ set for at
(5) | Status hearing set for 3/5/2003 at 9:30 A.M..
(6) oO Pretrial conference[held/continued to) [set for/re-set for] on set for at ‘
(7) Oo Trial[set for/re-set for] on at
(8) i] [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CUFRCP4{m) ClLocal Rule 41.1 CFRCP41(a(1) CFRCP41(a)(2).

(10) MW [Other docket entry) ENTER MEMORANDUM OPINION: Defendant’s motion (Doc 15-1) for
summary judgment is granted in part and denied in part. We grant the motion for summary judgment on
the race discrimination claim. We deny the motion for summary judgment on the retaliation claim and
the hostile work environment claim. All other pending motions are rendered moot. Pretrial order to be
filed on or before March 5, 2003.

(il) gf [For further detail see order attached to the original minute order.}
No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

a | Docketing to mail notices.

Mail AO 450 foy tynod be isig’s'n
Copy to jug sense hes
, re
m Leia su
SCT deputy’s .
initials 3 . f
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central Clerk's Office



Also, according to Mendenhall, when he complained to Jones about the graffiti,
she accused him of writing the graffiti to bolster his discrimination claims. The alleged
statements made by Jones added to Mendenhall’s humiliation and feeling of hostility
against him because he was black. It may be inferred that Jones let Mendenhall know
that she did think his complaints of harassment were worthy of respect and that she was
not going to do much stop the harassment. The harassment alleged by Mendenhall
initiated by coworkers and by Jones was directed at Mendenhall personally in his
presence, usually in the presence of other coworkers, and was frequent and humiliating.
Viewing the evidence in a light most favorable to Mendenhall, we think that, for the
purpose of this summary judgment motion, Mendenhall has shown that there are
disputed issues of material facts.

Mueller would be liable for Jones’ alleged hostile statements, but the question
remains whether Jones was negligent in preventing further harassment after
Mendenhall complained about harassment by his coworkers. After Mendenhall
complained about the name calling incidents, Jones had a talk with each of the parties
involved and told them that she would not tolerate such behavior. However, according
to Mendenhall, the name calling continued and every day up until he was terminated
they were “constantly bothering” him. Mendenhall also claims that one time when he

complained that the name calling had not stopped despite Jones warnings, Jones was

-1l-



233 F.3d 1036, 1043 (7th Cir. 2000), but an employer is only liable for harassment
made by the plaintiff's coworkers if the employer was negligent in failing to discover
the harassment or in its efforts to prevent further harassment. Id.

Mendenhall complains about an incident where feces was smeared on his locker
in the mens’ restroom. However, all the lockers in the restroom were smeared and
Mendenhall has not shown that the incident had anything to do with his race.
According to Mendenhall, he was also subjected to name calling by Covarubbias and
Reyes on a daily basis. The name calling appeared to be directed at Mendenhall’s race.
Mendenhall claimed in his deposition that he was called a “black monkey” and that he
was told “all you people lazy.” Mendenhall also claims that after April of 2001 and up
until his termination, he noticed the letters “n-i-g-a” written in graffiti throughout the
warehouse in approximately seventeen different locations. According to Mendenhall,
Peart, and Walker, Jones did not remove the graffiti when she was told about it and the
graffiti would remain undisturbed for months. Mendenhall also claims that when he
complained to Jones about racial discrimination, Jones told him that “I own you when
you are here; this is not a democracy, I control you, this is my warehouse.”
Mendenhall also claims that Jones said to him, “I am sick and tired of this
discrimination bullshit of yours” and “you can sue all you like, go to the EEOC, this

company’s got deep pockets.”

-10-


We also note that Mueller has filed a “Reply in Support of Its Rule 56.1
Statement of Undisputed Material Facts” in which Mueller responds to Mendenhall’s
56.1(b) responses. Rule 56.1 does not provide for such a reply and, as it is
inappropriate, we shall order it stricken. Mueller has also filed a motion to strike which
we will take under advisement.

I. Retaliation Claim

Mueller claims that Mendenhall cannot include a retaliation claim in his
complaint because retaliation was not specifically mentioned in his EEOC charge. A
plaintiff cannot assert allegations in a complaint that were not included in the plaintiff's
EEOC charge. Peters v. Renaissance Hotel Operating Co. 307 F.3d 535, 550 (7th Cir.
2002). However, a plaintiff can assert allegations in the complaint that were not
expressly stated in the EEOC charge if the allegations are “like or reasonably related
to the EEOC charges” and the allegations in the complaint could be expected to come
to light after an EEOC investigation of the charge. Id. (quoting Harper v. Godfrey Co.,
45 F.3d 143, 147-48 (7th Cir. 1995)). The separate allegations in the complaint must,
at the very least, involve “the same conduct and implicate the same individuals” that
are expressly included within the EEOC charge. Jd. Mendenhall complained in the
EEOC charge that he was subjected to “racially derogatory actions.” After the EEOC

charge states that Mendenhall complained to his supervisor about the “racially

-7-



derogatory remarks about Hispanics, although Mendenhall denies making such
statements. According to Mendenhall, he repeatedly complained to Jones, but Jones
did nothing to stop the name calling. In June 2000 Jones gave Mendenhall a
disciplinary reprimand because he was working too slowly. On October 24, 2000
Jones issued a disciplinary warning to Mendenhall because he took a magazine in the
restroom at work while on the clock and remained in there for fifteen minutes. On
April 19, 2001 Jones suspended Mendenhall for making a gun gesture with his hand
towards Covarubbias and Reyes. On August 28, 2001 Mendenhall had not finished
picking an order by 11:15 A.M. and Jones thought he was working too slowly. She
proceeded to try and duplicate all the picking movements that Mendenhall would have
had to make in picking the order and claims that she completed in forty minutes what
it took Mendenhall three hours to pick. She fired Mendenhall that day for working too
slowly. On August 31, 2001 Mendenhall filed a charge with the EEOC claiming racial
discrimination. He claimed in the charge that he had been repeatedly subjected to
“racially derogatory actions” and that he complained to his supervisor who did nothing
to stop the problems. He claimed in the charge that he was terminated and he was
suspended in April 2001 because of his race. Mendenhall’s complaint is brought
pursuant to 42 U.S.C. § 20006 et seq. and consists of a hostile work environment claim,

a race discrimination claim, and a retaliation claim.


as stated before, that claim would be time-barred. Also, Mendenhall has not provided
any reliable evidence to show that Reyes, like Mendenhall, was on the clock while he
was in the bathroom. Mendenhall and Walker’s belief that Reyes was on the clock is
nothing more than speculation, and Mendenhall has provided no other evidence to back
up his assertion.

Mendenhall also claims that his suspension for making threatening gestures at
Covarubbias was a material adverse employment action. However, Mendenhall admits
in his 56.1(b) response that Jones terminated Covarubbias in September of 2002
because he admitted that he either threatened or struck Walker. Also, Mendenhall has
not provided any evidence to show that Jones treated more favorably other employees
outside the protected class that threatened coworkers or otherwise violated employment
policies.

The only adverse employment action for which Mendenhall has provided any
reliable evidence to show that a similarly situated employee was treated differently is
the failure to assign Mendenhall the lead position. Reyes initially held the same
position as Mendenhall at the warehouse. Reyes was not black and he had participated,
as did Mendenhall, in what Jones deemed the childish name calling feud at the
warehouse. Mendenhall applied for the lead position, but Reyes was chosen for the

lead position instead of Mendenhall.

-14-



2) she was qualified for the position sought; 3) she was rejected for the position; and
4) the employee promoted was not a member of the protected group and was not better
qualified than the plaintiff.” Johnson v. Nordstrom, Inc., 260 F.3d 727, 732 (7th Cir.
2001). Mendenhall applied for the lead position and Reyes, who is not black, was
chosen. Jones and Mendenhall dispute whether Mendenhall was qualified for the
position and whether Reyes was better qualified. We need not determine this issue
here because it is addressed within the following pretext analysis.

Jones offered a non-discriminatory reason for her decision to choose Reyes for
the lead position. She claims that she chose Reyes because he was the best qualified.
Mendenhall claims that the reason is a pretext. To show a pretext the plaintiff must
establish that the given reason is a lie made by the employer to conceal its unlawful
discriminatory intentions. Hasham v. California State Bd. of Equalization, 200 F.3d
1035, 1045 (7th Cir. 2000). In determining whether there is a pretext, the focus is on
the issue of whether the employer intended to lie rather than whether the given reason
is ultimately found to be sound. Essex v. United Parcel Service, Inc., 111 F.3d 1304,
1310 (7th Cir. 1997). A plaintiffcan show a pretext by presenting “direct evidence that
a discriminatory reason motivated the employer’s decision or by presenting evidence
that the employer’s proffered reason is unworthy of credence, thus raising the inference

that the real reason is discriminatory.” Jd.

-16-



stock. Mendenhall also claims that from April 26, 2001 until he was terminated, he
saw the letters “n-i-g-a” written in graffiti in approximately seventeen different
locations at work. He complained to Jones about the graffiti and, according to
Mendenhall, Jones accused him of writing the graffiti to bolster his claims of racial
harassment. Mendenhall also claims that the graffiti sometimes remained on the wall
for months after he notified Jones. There was an isolated incident at the warehouse in
January 2001 when feces was smeared on Mendenhall’s locker in the men’s bathroom.
Mendenhall also claims that he was discriminated against when he was not chosen by
Jones for the “lead” position in the warehouse which involved additional interaction
with will call and with will call customers.

Apparently, during Mendenhall’s employment at Mueller there was an ongoing
feud between two groups of workers at the warehouse. Mendenhall was friends at
work with Mr. Kegan Peart (“Peart”) and Mr. Dennis Walker (“Walker”). According
to Mendenhall, two of his co-workers that are Hispanic, Eliseo Covarubbias
(“Covarubbias”) and Ernesto Reyes (“Reyes”), regularly called Mendenhall names in
Spanish such as monkey and dog, and made insulting references to his mother and to
black people. At first Mendenhall did not understand what names they were calling
him, but another coworker eventually explained to Mendenhall what they were saying.

Covarubbias and Reyes claim that Mendenhall called them names also and made


UNITED STATES DISTRICT COURT

OREASTERN DIVISION DOCKETED
JAN 28 2003
ANDRE MENDENHALL SR., )
Plaintiff,
vs. 01 C9740
MUELLER STREAMLINE CO., }
Defendant. }
MEMORANDUM OPINION

CHARLES P. KOCORAS, Chief District Judge:

This matter is before the court on Defendant Mueller Streamline Co.’s
(“Mueller”) motion for summary judgment. For the reasons set forth below we deny
the motion in part and grant the motion in part.

BACKGROUND

Plaintiff Andre Mendenhall, Sr. (“Mendenhall”), a black male, began working
for Mueller as a warehouse worker at Mueller’s Addison location in 1988. His duties
included picking orders, loading trucks, putting away stock, and cleaning. In October
1999, Deborah Jones (“Jones”) became Mendenhall’s supervisor. Mendenhall claims
that at first Jones assigned him to straighten out the stock which was easier work than

picking orders, but that in June 2000 Jones stopped assigning him to straighten out the

BA


surprised and said that she thought that Reyes and Covarubbias would have tired of the
name calling by then. Viewing the evidence in the light most favorable to Mendenhall,
Jones apparently did not take the name calling incidents seriously and viewed them as
nothing more than a childish feud that would eventually play itself out. For the
purposes of this summary judgment motion, Mendenhall has shown that Jones was
negligent in not preventing the name calling from continuing after Mendenhall
complained to Jones. For the reason that material evidence is in dispute, we deny the
motion for summary judgment on the hostile work environment claim.
IV. Race Discrimination

Where an employer in a Title VII case brings a motion for summary judgment,
the plaintiff has two approaches that can be used to defeat the motion. Pafford v.
Herman, 148 F.3d 658, 665 (7th Cir. 1998). Under the “direct” approach, the plaintiff
can show through direct or circumstantial evidence that the alleged harmful action of
the employer was “motivated by an impermissible purpose, such as her race or national
origin.” Jd. Under the “indirect” approach the plaintiff must establish a prima facie
case which will allow an inference of discrimination. Id. To establish a prima facie
case of race discrimination a plaintiff must show: “(1) that she was a member of a
protected class; (2) that she was performing her job satisfactorily; (3) that she

experienced an adverse employment action; and (4) that similarly situated individuals

-12-



It is not clear that an assignment to the lead position would have been considered
a promotion or that a failure to be assigned to the lead position would constitute a
material adverse employment action. The lead person did not have the right to hire,
fire, or discipline other warehouse employees and it had the same pay as the other
warehouse positions. See Traylor, 295 F.3d at 788 (stating that to be actionable under
Title VII the adverse employment action must be material and that not every
employment action that makes the employee unhappy is actionable). Also, in regards
to the satisfactory performance prong of the prima facie case, Mendenhall does not
offer any credible evidence to dispute the fact that he made a threatening gun gesture
at a coworker. Diane McClendon, who worked in the warehouse office and was not
involved in the warehouse feud, witnessed the gesture. Also, Mendenhall was
disciplined prior to his termination for working too slowly. Mendenhall’s response in
his deposition to the accusations that he worked too slowly was that he was not the
slowest worker, admitting that he worked slowly. Thus, Mendenhall has not shown
that he performed his work satisfactorily.

Even if we viewed an assignment to the lead position as a promotion and
considered the prima facie elements for such a case, Mendenhall cannot prevail on the
race discrimination claim. For a failure to promote claim, to establish a prima facie

case a Title VII plaintiff must show: “‘1) that she is a member of a protected group;

-15-