employment because they believed he was incapable of performing his job to their satisfaction. The
University terminated his employment effective January 4, 2003.
DISCUSSION

1 Standard of Review

Summary judgment is appropriate when the moving papers and affidavits show there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); King v. National Human Resource
Committee, Inc., 218 F.3d 719, 723 (7" Cir. 2000). Once a moving party has met its burden, the non-
moving party must go beyond the pleadings and set forth specific facts showing there is a genuine
issue for trial. Fed. R. Civ. P. 56(e); Silk v. City of Chicago, 194 F.3d 788, 798 (7" Cir. 1999). A
genuine issue of material fact exists when the evidence is such that a reasonable jury could return
a verdict for the nonmoving party. Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7" Cir. 2000).
“[A] pro se litigant does not escape the essential burdens necessary to avoid summary judgment.”
Cavalieri-Conway v. L. Butterman & Assoc., 992 F. Supp. 995, 1001 (N.D. III. 1998).
II. Analysis
A. Robinson’s Race and Color Discrimination Claims.

Robinson alleges defendants discriminated against him on account of his race and color by:
(1) terminating his employment; (2) violating an implied agreement to allow him to work a certain
schedule; and (3) harassing him concerning his job performance and attendance. The court applies
the same standards in assessing liability under Title VII and §1981. Bennet v, Roberts, 295 F.3d 687,
697 (7" Cir. 2002). To prove race discrimination, a plaintiff must proffer either direct or indirect

evidence of the employer’s discriminatory intent. Jd. at 694. Direct evidence may include an


16186, at *14 (7" Cir. Aug. 3, 2004) (even if employer’s decision is “‘mistaken, ill-considered or
foolish,’ pretext has not been shown ‘so long as [the employer] honestly believed those reasons.”).
Nor is there any evidence suggesting these reasons were not the actual motivation for the actions
taken or that they were insufficient grounds for discipline, suspension and termination. Because
Robinson has no evidence of pretext, summary judgment must be granted on his race and color
discrimination claims for this reason as well.
B. Racial Harassment

Robinson claims he was racially harassed concerning his job performance, attendance and
work schedule. Title VII prohibits an employer from engaging in harassment that creates a hostile
or offensive working environment for employees based on their race. Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993). For a hostile work environment claim “to be actionable, it must be
sufficiently severe or pervasive so as to alter the conditions of the victim's employment and to create
an abusive working atmosphere.” Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 885 (7th
Cir.1998), quoting McKenzie v. Illinois Dep't of Transp., 92 F.3d 473, 479 (7th Cir.1996). Whether
harassment is sufficiently severe or pervasive depends on the totality of the circumstances, including
“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, 510 U.S. at23, These standards “are sufficiently demanding to ensure
that Title VII does not become a ‘general civility code.’”” Faragher v. City of Boca Raton, 524 U.S.
775, 787 (1998), citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998).

Robinson cannotestablish the alleged harassment was sufficiently severe or pervasive to alter

the conditions of his employment and create an abusive working environment. He admits he was

10


African-American employee was treated more favorably; and (3) defendants’ stated reasons were
pretextual.

1. Defendants’ Legitimate Expectations.

Robinson has failed to meet his prima facie burden of showing that he met defendants’
legitimate performance expectations. As set forth above, there is no dispute Robinson made
numerous mistakes and did not complete his work on time. There is also no dispute Robinson
“yelled at” Wolfe and engaged in other conduct Wolfe and Kim considered insubordinate. Absent
evidence that Robinson met defendants’ legitimate expectations, he cannot establish a prima facie
case of race discrimination. See Harvey v. Maytag Corp., 2004 U.S. App. LEXIS 15408, at * 17 (7*
Cir, July 23, 2004); Gulley v. Rockford Memorial Hospital, 1995 U.S. App. LEXIS 12079, at *14
(7" Cir. May 19, 1995).

2. Adverse Employment Action.

Robinson claims defendants discriminated against him by changing his work schedule so that
he could no longer work after class on Mondays and Fridays. An adverse employment action must
be materially adverse, not merely an inconvenience. Griffin v. Potter, 356 F.3d 824, 829 (7" Cir.
2004), A change in work hours is not an actionable adverse employment action. Jd. As a matter
of Jaw, Robinson cannot establish that he suffered an adverse employment action as a result of
having to make up his hours on the weekends instead of at night.

3. Similarly Situated Employees.

Robinson claims he was similarly situated to Geary Smith (“Smith”), Robyn Deneau

(“Deneau”) and Sally Hall (“Hall”). He claims they were treated more favorably than he because


employer's open acknowledgment of racial hostility or racial epithets sufficiently connected to the
challenged employment decision. Troupe v. May Dept. Stores Co., 20 F.3d 734, 737 (7" Cir. 1994);
Perdomo y. Browner, 67 F.3d 140, 144, n. 1 (7" Cir. 1995). Robinson admits no one made any
racial comments to him. He argues the documentary evidence attached to his response provides
direct evidence of race discrimination. Specifically, he claims statements made by Wolfe and Kim
about his co-workers resenting his work schedule provide direct evidence of race discrimination.
These statements do not show any racial hostility on the part of Wolfe or Kim (or anyone else), nor
are they connected to the challenged employment decisions. The documents attached to Robinson’s
response do not contain direct evidence of race discrimination.

Under the indirect method, Robinson must present evidence sufficient to establish a prima
facie case of defendants’ discriminatory motive. Robinson must show: (1) he belongs to a protected
class; (2) he met defendants’ legitimate performance expectations; (3) he suffered an adverse
employment action; and (4) defendants treated similarly situated employees outside the protected
class more favorably. Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1035 (7th Cir. 1999). If
Robinson is able to satisfy all four elements of his prima facie case, the burden of production shifts
to defendants to identify a nondiscriminatory reason for the actions taken. Myrick v. Aramark
Services, Inc., 2005 U.S. App. LEXIS 575, at *8 (7 Cir. Jan. 12, 2005). If defendants articulate
such a reason, Robinson will avoid summary judgment only if he can produce evidence that the
reason given is pretextual. /d.

Defendants argue summary judgment should be granted because there is no genuine issue of

material fact that: (1) Robinson met their legitimate expectations; (2) a similarly situated non-


performing the job. They had received good to excellent performance reviews prior to August 2002.
Robinson, on the other hand, had performance problems throughout his employment. Absent
evidence that a similarly situated non-African-American employee was treated more favorably,
Robinson cannot establish a prima facie case of race discrimination. See Radue, 219 F.3d at 619.

Because Robinson has not met his prima facie burden, summary judgment must be granted

in defendants’ favor on his race and color discrimination claims.
4. Pretext.

Even if Robinson met his prima facie burden, summary judgment must still be granted
because he has not produced evidence of pretext. Defendants articulated non-discriminatory reasons
for Robinson’s discipline, suspension and termination: poor work performance, attendance problems
and insubordination. Robinson has not advanced any evidence that these stated reasons are a pretext
for race discrimination. To demonstrate pretext, Robinson must produce significantly probative
admissible evidence from which the trier of fact could infer that defendants’ reasons are false and
that the actual reason for termination was discriminatory. Stone v. Mid Indiana Service Co., Inc.,
2004 U.S. App. LEXIS 23322, at *7 (7" Cir. Nov. 4, 2004). To show pretext, Robinson must show
defendants’ reasons are unworthy of belief. Gusewelle v. City of Wood River, 374 F.3d 569, 575 (7"
Cir. 2004). To meet this standard, Robinson may show that the proffered reasons are factually
baseless, were not the actual motivation for the actions taken or were insufficient to motivate the
actions taken. /d.

Robinson has produced no evidence from which a trier of fact could find pretext. There is
no evidence Wolfe and Kim did not honestly believe Robinson performed poorly, had attendance

problems and was insubordinate. See Reed v. Lawrence Chevrolet, Inc., 2004 U.S. App. LEXIS


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

EASTERN DIVISION
CINQUE ROBINSON, )
Plaintiff, } No. 04 C 3678
Vv. } Suzanne B. Conlon, Judge
DR. HELEN KIM, DR. ANDREW WOLFE, }
and THE UNIVERSITY OF CHICAGO, )
Defendants. }

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Cinque Robinson sues his former employer, The University of Chicago (“the
university”), and his former supervisors, Dr. Helen Kim (“Kim”), and Dr. Andrew Wolfe (“Wolfe”),
for race and color discrimination. His claims arise under 42 U.S.C. § 1981 (“§ 1981”) against all
defendants, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq. (“Title VII”)
against the university.' Defendants move for summary judgment on all remaining counts pursuant

to Federal Rule of Civil Procedure 56.

'Robinson’s response seeks to reopen his ADA claim for trial. The court dismissed his
ADA claim against the individual defendants on August 27, 2004, and against the university on
November 19, 2004. Although Robinson has not formally moved for reconsideration of the
dismissal orders, the court liberally construes his pro se pleading. Even liberally construing his
response, Robinson provides no basis for reconsideration of the dismissal orders. See Bank of
Waunakee vy. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990).

1


not subjected to any racial comments. He complains that he was harassed about his work schedule,
attendance and performance. But he offers no evidence that the alleged harassment was because of
his race. Rather, his complaints involve normal workplace friction, which are neither severe nor
pervasive enough to constitute racial harassment. See Herron v. Daimlerchysler Corp., 388 F 3d
293, 303 (7" Cir. 2004). Based on the totality of circumstances, a reasonable jury could not conclude
the alleged conduct was so severe or pervasive as to constitute an actionable hostile work
environment.
CONCLUSION
The material facts are undisputed. For the foregoing reasons, defendants are entitled to

judgment as a matter of law.

February 8, 2005 ENTER:

Suzanne &. Conlon
United States District Judge

11


Wolfe and Kim did not issue them a notice of corrective action or terminate their employment.’ To
be similarly situated, employees must be directly comparable in all material respects. Myrick v.
Aramark Services, Inc., 2005 U.S. App. LEXIS 575, at *10 (7" Cir. Jan. 12, 2005). In cases where
a plaintiff claims he was disciplined more harshly than a similarly situated employee, he must show
he is similarly situated with respect to performance, qualifications and conduct. Radue v. Kimberly-
Clark Corp., 219 F.3d 612, 617 (7" Cir. 2000).

Robinson claims Smith, Deneau and Hall were “accused by Wolfe and Kim of the exact same
violations-poor work performance and poor attendance.” Response, p. 5. Robinson does not
provide a record citation for the statement. However, a document attached to his response contains
evidence Smith and Deneau began working reduced hours and became increasingly unproductive
after Robinson was hired. Exhibit B, Section E, p. 17-18. Wolfe and Kim sent them a disciplinary
email as aresult. There is no evidence they received a notice of corrective action or were suspended
or terminated for their performance.

This evidence does not create a genuine issue of material fact whether Robinson was
similarly situated to Smith, Deneau or Hall. First, all three co-workers had more seniority than
Robinson. Second, there is no evidence any of them “yelled at” a supervisor, threatened a supervisor
with a citizen’s arrest or responded to a reprimand by stating “don’t you ever accuse me again,” or
comparable insubordinate conduct. Third, there is no evidence they were counseled more than nine

times in a five month period. Fourth, Smith, Deneau and Hall had proven themselves capable of

Robinson also claims they were treated more favorably because Wolfe and Kim allowed
them to work the schedule they requested. As set forth above, this claim is not actionable. Even
if it were, there is no evidence Smith, Deneau or Hall were treated more favorably regarding
work schedules. There is no evidence they were allowed to work a more flexible schedule than
Robinson worked.


counseling, Robinson continued to have performance problems. For example, he mistakenly killed
two mice. His mistake caused a setback in the laboratory’s research. He also failed to timely
euthanize the mice. There was a backlog of work in the laboratory as a result of Robinson’s
inefficiencies.

In November 2002, Wolfe and Kim counseled Robinson several times both verbally and in
writing about his performance problems. Nevertheless, his performance did not improve, and he
became insubordinate. Around November 12, Robinson sent Wolfe and Kim an email stating, “I
think you [Wolfe] deserve to be yelled at-by me in particular. And so I do.” Robinson “yelled at”
Wolfe for not doing Robinson’s work. Response, Exhibit B, Section B, p. 8. On November 13, he
sent Kim an email stating “don’t you ever accuse me again, the way that you did [yesterday], of not
doing something that is not my job to begin with.” Response, Exhibit B, Section B, p. 9. On the
same day, Wolfe and Kim issued Robinson a written “Notice of Corrective Action” as a result of his
unsatisfactory performance and insubordination.

Despite the corrective notice, Robinson’s performance still did not improve. He did not
update the database on a daily basis. He arrived late for work on December 9 and 10, and continued
to fall behind in his work. On December 6 and 9, Wolfe had to do Robinson’s work because
Robinson did not complete it on time. On December 10, Robinson threatened to make a citizen’s
arrest against Wolfe.

On December 13, Wolfe and Kim issued Robinson a second “Notice of Corrective Action”
because of his insubordination, tardiness and unsatisfactory performance. As a result of the second

notice, he was suspended pending an investigation. Wolfe and Kim decided to terminate his


forth in defendants’ statement that Robinson denied, but failed to support with proper record
citations. Fisher, 2002 U.S. Dist. LEXIS, at *12.
IL. Facts

The following facts are undisputed unless otherwise noted. On August 9, 2002, Robinson,
an African-American, began working for the university as a full-time junior research technician at
one of its laboratories. Wolfe, who is Caucasian, and Kim, an Asian-American, interviewed him
before he was hired and supervised him throughout his tenure at the laboratory. They allowed him
to work a flexible full-time schedule to accommodate his class schedule. He was allowed to work
8:30 a.m. until 12:30 p.m. on Mondays and Fridays, and to make up the remaining hours after class
or on weekends.’

Robinson’s job duties included keeping mice cages in order, setting up mice for mating,
euthanizing mice, conducting mouse genotyping and updating the database. Robinson admittedly
made numerous mistakes during his five months on the job. He incorrectly performed a step in the
mouse genotyping process, causing subsequent errors in the process. Wolfe discovered this mistake
in late August 2002.

Robinson did not complete his work on time. Wolfe and Kim verbally counseled him in
early October about working too slowly. During the conversation, Robinson agreed that a backlog
of work had accumulated in the laboratory because he had not completed his work.

In early November, Kim and Wolfe again counseled Robinson about his job performance.

Kim sent him an email memorializing the conversation and outlining his job expectations. Despite

Robinson claims he was initially allowed to make up hours after class, but was later told
he had to make them up on the weekends.


BACKGROUND
I. Local Rule 56.1

Local Rule 56.1 requires litigants to follow a detailed procedure in filing and responding to
summary judgment motions. Local Rule 56.1 requires the non-moving party to submit a response
“to each numbered paragraph in the moving party’s statement [of material facts}, including, in the
case of any disagreement, specific references to the affidavits, parts of the record, and other
supporting materials relied upon.” Local Rule 56.1(b)(3)(A). All relevant facts denied without
supporting documentation must be accepted as true provided the facts are “properly supported by
references to the record or other evidentiary material.” Jupiter Aluminum Corp. v. Home Ins. Co.,
225 F.3d 868, 871 (7th Cir. 2000); see also Stewart v. McGinnis, 5 F.3d 1031, 1034 (7th Cir. 1993);
Wiskunas y. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994) (only admissible evidence may be
considered on summary judgment).

Defendants filed and served a “Notice to Pro Se Litigant Opposing Motion for Summary
Judgment” as required under Local Rule 56.2. Robinson is therefore required to comply with Local
Rule 56.1 despite his pro se status. See Morris v. IBM Global Services, 2005 U.S. Dist. LEXIS 897,
at *3 (ND. Ill. Jan. 13, 2005); Fisher v. Ameritech, 2002 U.S. Dist. LEXIS 15643, at *11 (N.D. Ill.
Aug. 22, 2002). Robinson submitted a response to each numbered paragraph in defendants’
statement, but his response fails to contain record citations for each denial. See {J 18, 40, 41, 45,
46, 48, 49, 52, 54, 74, 77, 78. In other instances, Robinson cites inadmissible evidence to support
a denial, such as statements made in his legal briefs. See Buck v. Lake County Sheriff, 2004 U.S.
Dist. LEXIS 25880, at * 4 (N.D. Ill. Dec. 20, 2004) (statements made in legal briefs are not

admissible evidence). The court must accept as true any relevant and properly supported facts set