IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JEFFREY CAVALIER, )

)

Plaintiff, )

) No. 20-cv-03883

v. )

) Judge Andrea R. Wood

SPEEDWAY, LLC, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

On June 2, 2019, Plaintiff Jeffrey Cavalier entered a Speedway gas station operated by 

Defendant Speedway, LLC and ordered a sandwich from the store’s café. Cavalier claims that 

while he was standing in line to pay, he saw the employee preparing his sandwich, Defendant Erik 

Bohler, spit in his order. According to Cavalier, Bohler did so because Cavalier is an African 

American. Therefore, Cavalier has brought the present action alleging that Speedway and Bohler

discriminatorily prevented him from forming a contractual relationship in violation of 42 U.S.C. 

§ 1981 and discriminated against him in a place of public accommodation in violation of 42 

U.S.C. § 2000a. (Third Am. Compl., Dkt. No. 24.) Cavalier also asserts Illinois state-law claims, 

including for breach of implied and express warranties. Now before the Court is Defendants’

motion for partial summary judgment on the § 1981 and warranty claims. (Dkt. No. 33.) For the 

reasons that follow, Defendants’ motion is granted. 

BACKGROUND

I. Local Rule 56.1

Before summarizing the material facts, the Court first addresses Defendants’ contention 

that Cavalier did not comply with the Northern District of Illinois’s Local Rule 56.1. Local Rule 

Case: 1:20-cv-03883 Document #: 51 Filed: 03/28/22 Page 1 of 10 PageID #:345
2

56.1 requires the party moving for summary judgment to submit a statement of material facts that 

it contends entitle it to summary judgment. L.R. 56.1(a)(2). The statement of material facts must 

consist of “concise numbered paragraphs” and “[e]ach asserted fact must be supported by citation 

to the specific evidentiary material, including the specific page number that supports it.” L.R. 

56.1(d)(1), (d)(2). “The court may disregard any asserted fact that is not supported with such a 

citation.” L.R. 56.1(d)(2).

The party opposing summary judgment must then file a response to the statement of 

material facts. L.R. 56.1(b)(2). The response must consist of numbered paragraphs that 

correspond to the numbered paragraphs in the statement of material facts and set forth the asserted 

fact and the opposing party’s response to that fact. L.R. 56.1(e)(1). “Each response must admit the 

asserted fact, dispute the asserted fact, or admit in part and dispute in part the asserted fact.” L.R. 

56.1(e)(2). Any dispute of an asserted fact must be supported by a citation to “specific evidentiary 

material that controverts the fact” and a concise explanation of how the cited material controverts 

the asserted fact. L.R. 56.1(e)(3). “Asserted facts may be deemed admitted if not controverted

with specific citations to evidentiary material.” Id. 

To the extent the opposing party wishes to present any additional facts, it may do so by 

submitting a separate statement of additional facts that complies with Local Rule 56.1(d), which

governs the moving party’s statement of material facts. L.R. 56.1(b)(3). Then, the moving party 

must submit a response to those additional facts subject to the requirements for the opposing

party’s response to the statement of material facts set forth by Local Rule 56.1(e). L.R. 56.1(c)(2).

Finally, a party’s summary judgment brief must cite to specific paragraphs in the Local Rule 56.1 

statements or responses. L.R. 56.1(g). Thus, Local Rule 56.1 is violated where a party’s brief cites 

Case: 1:20-cv-03883 Document #: 51 Filed: 03/28/22 Page 2 of 10 PageID #:346
3

directly to the record. Mervyn v. Nelson Westerberg, Inc., 76 F. Supp. 3d 715, 719 (N.D. Ill. 

2014). 

The Seventh Circuit has “repeatedly held that the district court is within its discretion to 

strictly enforce compliance with its local rules regarding summary-judgment motions.” Patterson 

v. Ind. Newspapers, Inc., 589 F.3d 357, 360 (7th Cir. 2009). “This is because ‘compliance with 

local rules like Rule 56.1 ensures the facts material to the issues in the case and the evidence 

supporting such facts are clearly organized and presented for the court’s summary judgment 

determination.’” Rivera v. Guevara, 319 F. Supp. 3d 1004, 1017 (N.D. Ill. 2018) (quoting Curtis 

v. Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015)). A district court is therefore

entitled to “limit its analysis of the facts on summary judgment to evidence that is properly 

identified and supported in the parties’ statements.” Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 

F.3d 524, 529 (7th Cir. 2000).

Here, Defendants correctly assert that Cavalier does not fully comply with the 

requirements of Local Rule 56.1. Specifically, Cavalier’s response to Defendants’ statement of 

material facts fails to cite controverting evidence for those factual assertions he disputes. In 

addition, Cavalier’s brief in opposition to Defendants’ motion for summary judgment sometimes 

cites directly to the record. The primary material factual dispute in this matter involves whether 

Cavalier ever paid for the sandwich before he saw Defendant Bohler spit in it. In their statement 

of material facts, Defendants assert that Cavalier was still in line to pay for the sandwich when he 

saw Bohler spit in it and then left the line to confront Bohler before paying. (Pl.’s Resp. to Defs.’

Statement of Facts (“PRDSF”) ¶¶ 15, 17–18, Dkt. No. 42-1.) In his response to Defendants’

statement of material facts, Cavalier denies that he never paid for the sandwich and instead claims 

that he “had either simultaneously or already made payment to the cashier.” (Id. ¶ 15; see also id.

Case: 1:20-cv-03883 Document #: 51 Filed: 03/28/22 Page 3 of 10 PageID #:347
4

¶¶ 17–18.) Although Cavalier provides no evidentiary support in his response to Defendants’

statement of material facts, Cavalier’s brief attempts to demonstrate a dispute as to this fact by 

citing directly to his own declaration that he prepared in connection with his opposition to 

summary judgment. In his declaration, Cavalier claims that he “tendered payment for [his] items

and turned around while standing in that line and saw Defendant Bohler lean over and spit in [his] 

sandwich.” (Pl.’s Resp. to Defs.’ Mot. for Partial Summ. J., Ex. C ¶ 9, Dkt. No. 42-3.) 

The Court could excuse Cavalier’s Local Rule 56.1 violations and treat that declaration as

supplying the requisite evidentiary support as to the matter’s central material factual dispute. 

However, the Court declines to do so here because Cavalier’s declaration is inconsistent with his 

own prior sworn testimony—the primary evidence relied upon by Defendants.

1 In particular,

Cavalier was asked during his prior sworn testimony whether he “went and paid for everything,”

and Cavalier responded that he “was still in line to pay for the sandwich” when he turned around 

and saw what he believed to be Bohler spitting in his sandwich. (Defs.’ Mem. in Supp. of Mot. for 

Partial Summ. J., Ex. B at 5:3–10, 6:19–7:21.) On cross-examination, Cavalier was presented with 

surveillance camera footage from the Speedway store and asked specific questions about the

relevant sequence of events, ultimately confirming that at the time he went to confront Bohler, the 

cashier was still dealing with the customer ahead of Cavalier in line. (Id. at 17:18–21:13.)

While the Seventh Circuit generally allows “unsubstantiated, self-serving affidavits [to] be 

used to defeat a motion for summary judgment,” it does “not allow litigants to manufacture 

material fact questions by affidavit testimony that contradicts prior sworn testimony.” United 

States v. Funds in the Amount of $100,120, 730 F.3d 711, 718 (7th Cir. 2013). To dispel any 

1 The events underlying this action resulted in Bohler being issued a disorderly conduct citation and 

Cavalier testified under oath at a subsequent hearing on the citation. (Pl.’s Resp. to Defs.’ Statement of 

Facts ¶¶ 31–32, 35–36, Dkt. No. 42-1.) Cavalier’s testimony is the primary evidence Defendants rely upon 

in moving for partial summary judgment. 

Case: 1:20-cv-03883 Document #: 51 Filed: 03/28/22 Page 4 of 10 PageID #:348
5

doubt as to whether Cavalier had paid before confronting Bohler, the Court asked Defendants to 

submit the surveillance footage for its in camera review, without objection from either side. (Dkt. 

No. 47.) Based on its review, the Court concludes that no reasonable jury could find that Cavalier

had paid before leaving the cashier’s line. See Scott v. Harris, 550 U.S. 372, 380–81 (2007) 

(holding that where videotape evidence blatantly contradicts an opposing party’s version of the 

facts, a court should view the facts in the light depicted by the video for purposes of ruling on a 

motion for summary judgment). Consequently, the Court disregards Cavalier’s statements in his 

declaration claiming that he had paid for the sandwich before seeing Bohler spit in it.. 

II. Factual Background

Subject to the above Local Rule 56.1 rulings, the following facts are undisputed. 

Jeffrey Cavalier is an African-American man who works as a truck driver. (PRDSF ¶ 1;

Third Am. Compl. ¶ 6.

2

) On June 1, 2019, Cavalier was carrying out a delivery assignment when 

he visited the café of a West Chicago Speedway gas station located at 1501 West Roosevelt Road

and purchased a sandwich and coffee. (Id. ¶¶ 3–5.) Cavalier spent the night of June 1 in that 

Speedway’s parking lot. (Id. ¶ 6.) 

On the morning of June 2, 2019, Cavalier returned to the Speedway café to again get 

coffee and a sandwich. (Id.) Upon entering the Speedway, Cavalier placed his sandwich order at a 

touchscreen kiosk, prepared a cup of coffee at the self-service coffee counter, and then got in line 

to pay. (Id. ¶¶ 8, 12–13.) Meanwhile, Defendant Erik Bohler, the café’s manager, began preparing 

Cavalier’s sandwich at the food preparation counter. (Id. ¶¶ 9, 15.) While Cavalier was in line, he 

turned his head in the direction of the food preparation counter and observed Bohler spit in his 

sandwich. (Id. ¶¶ 15–16.) 

2 While there is no evidence in the record regarding Cavalier’s race, he alleges in the operative complaint 

that he is African American and Defendants do not contend otherwise.

Case: 1:20-cv-03883 Document #: 51 Filed: 03/28/22 Page 5 of 10 PageID #:349
6

Although he had not yet paid, Cavalier left the line for the cashier, approached Bohler, and

asked Bohler if he had just spit in Cavalier’s sandwich. (Id. ¶¶ 17–19.) Cavalier then pointed to 

Bohler and said “you spit in my sandwich. I know it, I saw it. I just saw you spit in my sandwich.”

(Id. ¶ 20.) Bohler denied the accusation but offered to make Cavalier a new sandwich free of 

charge. (Id. ¶¶ 21–23.) Cavalier rejected Bohler’s offer of a free sandwich. (Id. ¶ 24.) Instead, he 

turned toward the cashier and demanded that she call the police. (Id. ¶ 25.) When the cashier 

asked Cavalier what was wrong, Cavalier told her that “your cook just spit in my sandwich that he 

was fixing for me.” (Id. ¶¶ 27–28.) 

After the cashier called the police, West Chicago police officers came to the Speedway 

and interviewed Cavalier and Bohler. (Id. ¶ 29.) Ultimately, the police issued a disorderly conduct 

citation to Bohler. (Id. ¶ 31.) A hearing on the disorderly conduct citation was held on July 17, 

2019. (Id. ¶ 32.) After hearing testimony from both Cavalier and Bohler and reviewing security 

video from the Speedway café, a judge found Bohler not liable for disorderly conduct. (Id. ¶¶ 41, 

43.)

DISCUSSION

Summary judgment is appropriate if the admissible evidence considered as a whole shows 

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law, even after all reasonable inferences are drawn in the non-movant’s favor. Dynegy 

Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 517 (7th Cir. 2011). Defendants’ motion for partial 

summary judgment is directed toward three of the five Counts set forth in the operative Third 

Amended Complaint. In particular, Defendants contend that they are entitled to judgment as a 

matter of law on Cavalier’s 42 U.S.C. § 1981 claim (Count I) and his Illinois-law breach of 

implied and express warranty claims (Counts IV and V). 

Case: 1:20-cv-03883 Document #: 51 Filed: 03/28/22 Page 6 of 10 PageID #:350
7

I. Section 1981

Cavalier claims that Defendants violated § 1981 because Bohler’s conduct denied Cavalier

the right to contract because of his race, African American. Under § 1981, “[a]ll persons within 

the jurisdiction of the United States shall have the same right in every State and Territory to make 

and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). Normally, 

litigation under § 1981 “involves the right to make and enforce contracts of employment.” Morris 

v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996). Nonetheless, the Seventh Circuit has

recognized that a claim can arise in the retail context, such as where a customer is refused service. 

Id. To prevail on a § 1981 claim, a plaintiff must establish that “(1) they are members of a racial 

minority; (2) the defendant had an intent to discriminate on the basis of race; and (3) the 

discrimination concerned one or more of the activities enumerated in the statute (i.e., the making 

and enforcing of a contract).” Id.

Here, Defendants’ motion for summary judgment focuses on the third element, as they 

contend that Cavalier was not denied service but instead chose not to enter a contract with 

Defendants when he rejected Bohler’s offer to make him a new sandwich. The Seventh Circuit 

has recognized that a plaintiff cannot maintain a § 1981 claim when the plaintiff is the one 

responsible for terminating the transaction. Bagley v. Ameritech Corp., 220 F.3d 518, 521–22 (7th 

Cir. 2000); see also Mendez v. Pizza Hut of Am., Inc., No. 02 C 1819, 2002 WL 31236088, at *3 

(N.D. Ill. Oct. 3, 2002) (“It is well settled that a plaintiff cannot maintain a section 1981 claim

when the plaintiff was the party responsible for terminating the transaction.”). “This is true even if 

the plaintiff left the establishment because of what they perceived to be racial animus.” Mendez, 

2002 WL 31236088, at *3. Instead, it is necessary for a plaintiff to show that he “was actually 

prevented, and not merely deterred, from making a purchase or receiving service after attempting 

Case: 1:20-cv-03883 Document #: 51 Filed: 03/28/22 Page 7 of 10 PageID #:351
8

to do so.” Henderson v. Jewel Food Stores, Inc., No. 96 C 3666, 1996 WL 617165, at *3 (N.D. 

Ill. Oct. 23, 1996); see also Morris, 89 F.3d at 414 (finding that the plaintiffs failed to point to 

evidence showing that the defendant deprived them of the right to make and enforce a contract 

where “[t]hey were denied neither admittance nor service, nor were they asked to leave the 

store”). 

As a customer of the Speedway café, Cavalier was entitled under § 1981 to the full 

benefits of his contract with the cafe, which presumably includes a sandwich without an

employee’s spit in it. See 42 U.S.C. § 1981(b) (defining “make and enforce contracts” to include 

“the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship”); 

see also McCaleb v. Pizza Hut of Am., Inc., 28 F. Supp. 2d 1043, 1048 (N.D. Ill. 1998)

(“[D]efendant failed to provide plaintiffs the full benefits of the contract in that they failed to 

provide them with proper utensils with which to eat their pizza and created a disturbing 

atmosphere in which to eat.”). Had Bohler refused to make Cavalier a new sandwich, he likely 

would have deprived Cavalier of an enumerated § 1981 right. However, after Cavalier confronted 

him, Bohler offered to make a new sandwich, thereby providing Cavalier with the full value of his

purchase. Indeed, since the sandwich was offered for free, Cavalier would have received a greater 

value than the average customer. Cavalier understandably did not want a sandwich prepared by 

someone who had just spit in his original order. But the fact that Bohler would be preparing the 

new sandwich did not amount to a denial of service; it simply deterred Cavalier from agreeing to 

the transaction. For that reason, Defendants did not deny Cavalier the right to make and enforce a 

contract and they are entitled to summary judgment on the § 1981 claim. 

Case: 1:20-cv-03883 Document #: 51 Filed: 03/28/22 Page 8 of 10 PageID #:352
9

II. Breach of Implied Warranty

According to Cavalier, by attempting to serve Cavalier a sandwich with Bohler’s spit in it, 

Defendants breached the implied warranty of merchantability. In Illinois, “a warranty that the 

goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with 

respect to goods of that kind.” 810 ILCS 5/2-314. To prevail on a claim for breach of implied 

warranty of merchantability, a plaintiff must prove: “(1) a sale of goods (2) by a merchant of 

those goods, and (3) the goods were not of merchantable quality.” Brandt v. Boston Sci. Corp., 

792 N.E.2d 296, 299 (Ill. 2003). 

Defendants assert that Cavalier’s implied warranty claim fails because Cavalier never paid 

for the sandwich and thus there was no sale of goods. A contract for sale giving rise to the implied 

warranty of merchantability includes “a present sale of goods” with “sale” meaning “the passing 

of title from the seller to the buyer for a price.” 810 ILCS 5/2-106(1). Here, since Cavalier never 

paid for the sandwich and “title” never passed to him, there was no sale. Accordingly, his implied 

warranty claim fails and summary judgment is granted in favor of Defendants. 

III. Breach of Express Warranty

Finally, Cavalier argues that because Speedway advertised its sandwiches as “fresh,”

(PRDSF ¶ 10), it created an express warranty that Defendants breached by attempting to serve 

him a sandwich contaminated with another person’s saliva. “In Illinois, an express warranty is 

created where (1) the seller makes an affirmation of fact or promise; (2) that relates to the goods; 

and (3) becomes part of the basis of the bargain between the parties.” CHS Acquisition Corp. v. 

Watson Coatings, Inc., No. 17-cv-4993, 2018 WL 3970137, at *3 (N.D. Ill. Aug. 20, 2018); see 

also 810 ILCS 5/2-313. However, “an express warranty is a creature of contract.” Collins Co. v. 

Carboline Co., 532 N.E.2d 834, 838 (Ill. 1988). Because there was no sale here, and thus no 

Case: 1:20-cv-03883 Document #: 51 Filed: 03/28/22 Page 9 of 10 PageID #:353
10

contract was formed between Cavalier and Defendants, the express warranty claim must fail. See 

Kmak v. Sorin Grp. Deutschland GmbH, No. 17 CV 4759, 2017 WL 8199974, at *5 (N.D. Ill. 

Dec. 12, 2017) (dismissing breach of express warranty claim where the plaintiff did not allege that 

she bought anything from the defendant). Accordingly, Defendants are granted summary 

judgment on the breach of express warranty claim. 

CONCLUSION

For the foregoing reasons, Defendants’ motion for partial summary judgment (Dkt. No. 

33) is granted. Summary judgment is granted in Defendants’ favor with respect to on Counts I, 

IV, and V of the Third Amended Complaint. 

ENTERED:

Dated: March 28, 2022 __________________________

Andrea R. Wood

United States District Judge

Case: 1:20-cv-03883 Document #: 51 Filed: 03/28/22 Page 10 of 10 PageID #:354