Gray v. Monicals Pizza Corporation

Filing 67

OPINION entered by Judge Colin Stirling Bruce on 7/24/2014. Defendant's Motion for Summary Judgment 64 is GRANTED. Judgment is entered in favor of Defendant and against Plaintiff. This case is terminated. See written order. (KMR, ilcd)

E-FILED

Thursday, 24 July, 2014 10:52:15 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
______________________________________________________________________________
NATHAN D. GRAY,
)
)
Plaintiff,
)
v.
)
Case No. 13-CV-2113
)
MONICAL PIZZA CORPORATION,
)
)
Defendant.
)
OPINION

This case is before the court for ruling on the Motion for Summary Judgment
(#64) filed by Defendant Monical Pizza Corporation. Plaintiff, who is pro se, has not
responded to the Motion.

This court has carefully considered Defendant’s

arguments and the documents filed.

Following this careful and thorough

consideration, Defendant’s Motion for Summary Judgment (#64) is GRANTED.
BACKGROUND
On May 22, 2013, Plaintiff, Nathan D. Gray, filed a pro se Complaint (#1)
against Defendant, alleging racial harassment, racial discrimination and retaliation.
On June 10, 2013, Defendant filed its Answer and Affirmative Defenses (#7). A Rule
16 conference was held on July 18, 2013, before Magistrate Judge David G. Bernthal.
Judge Bernthal approved the plan proposed by the parties. Judge Bernthal entered
a text order which stated, in pertinent part, that the discovery deadline was March
28, 2014, and that case dispositive motions were due by May 23, 2014.
On January 27, 2014, Defendant filed a Motion for Summary Judgment (#31)

and a Memorandum in Support (#32) with attached exhibits. Defendant argued that
it was entitled to summary judgment on Plaintiff’s claims because Plaintiff could not
establish a prima facie case of racial harassment, racial discrimination or retaliation.
On February 21, 2014, Plaintiff filed a pro se Response to Motion for Summary
Judgment (#34) and a Memorandum in Support (#35) with attached exhibits,
including affidavits. In his Response, Plaintiff conceded that he could not establish
a prima facie case of retaliation. He argued, however, that he was routinely
subjected to unwelcome harassment by Defendant and that he needed additional
discovery regarding his discrimination claim. Plaintiff argued that the case was still
in the discovery phase and he was requesting additional discovery pursuant to Rule
56(d) of the Federal Rules of Civil Procedure.
On March 17, 2014, Plaintiff filed a pro se Request for Extension of Time for
Discovery (#40). Plaintiff asked that discovery be extended an additional 60 days
from the March 28, 2014, deadline. Plaintiff stated that the March 28, 2014, deadline
did not give him enough time. On March 17, 2014, Defendant filed its Objection to
Plaintiff’s Request for Extension of Time for Discovery (#41).
On April 1, 2014, this court entered an Opinion (#46). This court granted
Plaintiff’s request for an extension of time to complete discovery and extended the
discovery deadline to May 30, 2014. This court also granted Defendant’s Motion for
Summary Judgment, in part, and denied it, in part. This court granted summary

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judgment on Plaintiff’s claim of retaliation because Plaintiff conceded that he could
not establish a prima facie case of retaliation. This court denied summary judgment
as to Plaintiff’s racial harassment and racial discrimination claims because Plaintiff
was allowed additional time to conduct discovery.

This court extended the

dispositive motion deadline to June 30, 2014 and stated that Defendant could file a
new Motion for Summary Judgment on or before that date.
Plaintiff then proceeded to conduct discovery and filed various Motions to
Compel (#55, #58, #59, #60), which were denied.
MOTION FOR SUMMARY JUDGMENT
On June 18, 2014, Defendant filed a Motion for Summary Judgment (#64) and
a Memorandum in Support (#65), with attached exhibits. The exhibits included a
transcript of Plaintiff’s deposition and affidavits of various management employees
of Defendant.
A Notice (#66) was sent to Plaintiff regarding the Motion for Summary
Judgment. The Notice stated:
NOTICE IS HEREBY GIVEN that a case-dispositive
motion (such as a motion for summary judgment or
motion for judgment on the pleadings) has been filed.
See, Fed.R.Civ.P. 56. Please be advised that you have
twenty-one (21) days from the date of service to respond

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to the motion. If you do not respond, the motion, if
appropriate, will be granted and the case will be
terminated without a trial.

See, generally, Lewis v.

Faulkner, 689 F.2d 100 (7th Cir. 1982); Timms v. Frank, 953
F.2d 281 (7th Cir. 1992). Under the court’s local rules, a
motion is deemed to be uncontested if no opposing brief
is filed. See L.R. CDIL 7.1(D)(2).
When a motion for summary judgment is made and
properly supported, you must not simply rely upon the
allegations made in your complaint. Rather, you must
respond by affidavit(s) or as otherwise provided in Rule
56 of the Federal Rules of Civil Procedure, a copy of which
is attached. Your response must set forth specific facts
showing that there is a genuine issue of material fact for
trial. If you do not submit affidavits or other documentary
evidence contradicting the defendants’ assertions, the
defendants’ statement of facts will be accepted as true for
purposes of summary judgment. See Fed.R.Civ.P 56(e)
and L.R. 7.1 (attached).
The clerk’s office attached and sent a copy of Rule 56 and a copy of Local Rule 7.1
with the Notice. Plaintiff has not responded to the Motion for Summary Judgment
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and the time allowed for doing so has passed.
ANALYSIS
I. SUMMARY JUDGMENT STANDARD
Rule 7.1(D)(2) of the Local Rules of the Central District of Illinois provides:
Within 21 days after service of a motion for summary
judgment, any party opposing the motion must file a
response.

A failure to respond will be deemed an

admission of the motion.
Further, when the non-movant does not respond to the movant’s statement of facts,
the non-movant concedes the movant’s version of the facts. Waldridge v. American
Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994); Columbia Pictures Indus., Inc. v. Landa,
974 F. Supp. 1, 3 (C.D. Ill. 1997). The Seventh Circuit has repeatedly held that such
a rule is “entirely proper.” Doe v. Cunningham, 30 F.3d 879, 882 (7th Cir. 1994).
However, a party’s failure to submit a timely response to a motion for
summary judgment does not automatically result in summary judgment for the
moving party. LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 392 (7th Cir. 1995); see
also Archer Daniels Midland Co. v. Whitacre, 60 F. Supp. 2d 819, 823 (C.D. Ill. 1999). It
remains “the movant’s burden to demonstrate that no genuine issue of material fact
exists and that he is entitled to summary judgment as a matter of law.” Doe, 30 F.3d
at 883. Accordingly, the district court must make the further finding that summary

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judgment is proper as a matter of law. LaSalle Bank, 54 F.3d at 392, quoting Wienco
Inc. v. Katahn Assocs., Inc., 965 F.2d 565, 568 (7th Cir. 1992).
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986). In ruling on a motion for summary judgment, a district court “has one
task and one task only: to decide, based on the evidence of record, whether there is
any material dispute of fact that requires a trial.” Waldridge, 24 F.3d at 920.
II. PLAINTIFF’S CLAIMS
The undisputed facts set out by Defendant show that Plaintiff, who is black,
was hired by Defendant in 2007. He was promoted to Assistant Manager of the
Monical’s restaurant in Tilton, Illinois later in 2007. Plaintiff complained on two
separate occasions of harassment, but did not state that the alleged harassment was
related to his race. Plaintiff had multiple meetings with his superiors to discuss his
complaints of harassment, as well as management issues at the Monical’s restaurant
in Tilton. During his employment, Plaintiff never complained to his superiors that
he was treated differently because of his race. In 2012, Plaintiff accepted cash from
an hourly Monical’s employee, Cody Sollars, so that Sollars could leave work early.
On September 18, 2012, Plaintiff was terminated from his position at
Monical’s. He was terminated because he accepted cash from an hourly employee

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in exchange for giving that employee time off. Another Assistant Manager at that
Monical’s restaurant, Kevin Royalty, who is white, was engaged in similar conduct
of taking cash from hourly employees so the employees could receive time off work.
Royalty was terminated for accepting cash from hourly employees in exchange for
time off.
To survive summary judgment on a racial harassment theory, a plaintiff must
show that: “(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 work environment by creating a hostile or abusive
situation; and (4) there is a basis for employer harassment.” Porter v. Erie Foods Int’l,
Inc., 576 F.3d 629, 634 (7th Cir. 2009). This court agrees with Defendant that, based
upon the undisputed facts, Plaintiff cannot show that he was subjected to
harassment based on his race that was severe or pervasive.
As far as Plaintiff’s claim of discrimination, this court agrees with Defendant
that Plaintiff cannot survive summary judgment because he has no direct evidence
of discrimination and cannot show that he was terminated because of his race under
the McDonnell Douglas burden shifting approach. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973). Under McDonnell Douglas, a plaintiff must first
establish a prima facie case of racial discrimination. See E.E.O.C. v. Our Lady of
Resurrection Med. Ctr., 77 F.3d 145, 148 (7th Cir. 1996). To do so, he must show that

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“(1) [he] was within a protected class; (2) [his] performance met [his] employer’s
legitimate expectations; (3) [he] was terminated; and (4) others not in [his] protected
class received more favorable treatment. “ Id. at 148-49. The burden then shifts to
the defendant to provide a legitimate, non-discriminatory reason for the
termination. Id. at 149. “If the defendant meets this burden, the presumption of
discrimination created by the prima facie case drops out, and the plaintiff must
produce evidence proving that those reasons are merely pretextual-that the real
reasons were discriminatory.” Id. at 149, citing St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 515-17 (1993).
This court agrees with Defendant that Plaintiff cannot establish a prima facie
case of discrimination because he cannot show that similarly situated employees
were treated more favorably. In fact, Royalty, a white employee who held the same
position and engaged in similar conduct of accepting cash from other employees so
that those employees would not have to work their scheduled shift, was also
terminated by Defendant. Moreover, Defendant is also correct that it met its burden
to show that it had a legitimate, non-discriminatory reason for Plaintiff’s termination
and Plaintiff has provided no evidence to show that the reason given was a pretext
for discrimination.
In sum, this court has carefully considered Defendant’s arguments, the case
law cited and the exhibits filed, including the transcript of Plaintiff’s deposition and

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the affidavits of management personnel. Following this careful review, this court
agrees with Defendant that it is entitled to judgment on Plaintiff’s claims as a matter
of law.
IT IS THEREFORE ORDERED THAT:
(1) Defendant’s Motion for Summary Judgment (#64) is GRANTED.
Judgment is entered in favor of Defendant and against Plaintiff.
(2) This case is terminated.
ENTERED this 24th day of July, 2014.

s/COLIN S. BRUCE
U.S. DISTRICT JUDGE

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