Warner v. USF Holland, Inc.

Filing 53

WRITTEN Opinion entered by the Honorable John A. Nordberg. Defendants motion for summary judgment 31 is granted. Case Terminated Mailed notice(tlp, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

John A. Nordberg

CASE NUMBER

08 C 6823

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

1/25/2012

Craig Warner vs. USF Holland Inc.

DOCKET ENTRY TEXT

Defendant’s motion for summary judgment [31] is granted.

O[ For further details see text below.]

Docketing to mail notices.
*Mail AO 450 form.

STATEMENT
Introduction. This is a Title VII same-sex harassment case. Plaintiff Craig Warner was a truck driver
for USF Holland Inc. He alleges that Steve Chymka, his immediate supervisor, made sexual comments to
him for over 18 months. Plaintiff believes Chymka was bisexual and that these comments were implied
sexual overtures. Then, in May 2007, plaintiff complained to a supervisor that he did not appreciate the
comments. In June 2007, according to plaintiff, Chymka made an explicit sexual proposition in the men’s
bathroom. Plaintiff was fired three months later. He believes the firing was in retaliation for his complaint in
May 2007.
Defendant Holland asserts that plaintiff’s firing was a valid business decision not motivated
by a discriminatory animus toward men. Holland alleges that plaintiff had a long history of violating
company rules over his 10-year career and that he was fired in August 2007 after a surveillance team showed
that he submitted a false driver’s manifest covering up, among other things, a two-hour lunch. The firing was
upheld by an independent grievance committee. As explained below, Holland’s motion for summary
judgment is granted.
Factual Background. Craig Warner was hired by Holland in 1996. He worked as a pick-up and
delivery driver in the Chicago area. During the ensuing ten years, he was cited numerous times for violating
company rules. He claims the violations were unfounded.
On August 13, 2007, plaintiff came to work and was told that the company had conducted a surveillance
of his driving on August 9th and had concluded his driver’s manifest was false. The manifest is a daily log
Holland drivers must fill out while driving. Although plaintiff’s manifest contained several false entries,
according to Holland, the most prominent was a failure to disclose he had taken a two-hour lunch. Plaintiff
was asked to explain the discrepancies and said he couldn’t remember what happened and also that he didn’t
want to respond to the accusations until he spoke with his Union agent, Ed Urbaniak, who was on vacation.
The company then fired plaintiff for “proven dishonesty,” an offense which the Collective Bargaining
Agreement (“CBA”) entered into between the Union and the company defines as first-time fireable offense.
Plaintiff then appealed the decision through a comprehensive grievance procedure mandated by the
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CBA. The first step was an informal meeting with the company (referred to as the “Local”), which took place
on August 28th. At the Local, plaintiff and Urbaniak explained that he had a family crisis on August 9th.
Plaintiff’s 11-year old daughter, who had problems with violence, was apparently hitting plaintiff’s motherin-law who was babysitting her. Plaintiff called his wife and a policeman friend who plaintiff asked to go
over and talk to his daughter. After listening to the presentation, Neal London (the company’s labor relations
manager) was unconvinced: “If it was anybody but Craig Warner, I’d believe it.” (Pl. Dep. 169; Dep. Ex. 40).
The next step was a hearing before the Grievance Committee. As required by the CBA, the
Committee consisted of three Union representatives and three industry representatives none whom could be
Holland employees. This hearing took place on August 31st at a Holiday Inn in Willowbrook. Urbaniak
explained again how plaintiff was dealing with a family crisis that afternoon. At one point a Committee
member asked about a different entry on the manifest indicating plaintiff spent only three minutes making a
delivery to Unisource, an assertion the member thought was impossible. (Ex. 40 at 5.) According to
plaintiff’s later deposition testimony, he and Urbaniak had a disagreement about how to respond. Here is
plaintiff’s description of what happened:
So they made a big issue [about the Unisource error] and I tried to explain that to Ed
Urbaniak, that, you know, they’re discharging me for dishonesty and I want to set the record
straight and be honest with them about my defense. And he told me to keep my mouth shut,
that he would handle it all and don’t say nothing about anything in the manifest.
(Pl. Dep. 170.) After deliberating for a short period, the Committee upheld the company’s decision.
Thereafter, plaintiff pursued a claim with his Union alleging that Urbaniak failed to properly represent
him. On October 26, 2007, plaintiff wrote a long letter to the Union president, James Hoffa, complaining that
Urbaniak wouldn’t let plaintiff speak at the hearing. (Ex. 39.) Plaintiff also explained that he didn’t mention
the family crisis excuse when first confronted on August 13th because his supervisor, Steve Chymka, was in
the meeting and plaintiff was afraid Chymka “would have told everyone my situation.” (Id.) Plaintiff added:
“I had disagreements with [Chymka] in the past with another company when we drove together.” (Id.) But
plaintiff did not mention his current allegations that Chymka was sexually harassing him. The NLRB claim
was denied. (Pl. Dep. 215.)
This lawsuit followed. Plaintiff makes four factual allegations, and they all revolve around Chymka who
became plaintiff’s supervisor in September 2005 and remained his supervisor until plaintiff was fired in
August 2007.
First, plaintiff alleges Chymka made sexual comments to him. Plaintiff has identified four specific
comments: “high maintenance,” “hi handsome,” “how are we doing today, lover?,” and “cutie pie.” The term
used most often was “high maintenance,” which was made almost every other day, and typically spoken in
front of co-workers. The other terms were used less frequently and then only in private. Chymka allegedly
said “cutie pie” and “hi handsome” a dozen times each and “how are we doing today, lover?” three or four
times, all over the 18-plus-month period.
Second, plaintiff claims Chymka would “give me a look like a man was looking at a woman.” (Pl. Dep.
126.) When asked what about the look was sexual, plaintiff said: “Just his eyes. Just the way he looked at me,
you know, up and down. I don’t think he realized what he was doing.” (Id. at 130.) Plaintiff claims Chymka
gave him this “look” continuously, estimated to be three times a week.
Third, on June 6, 2007, Chymka allegedly sexually propositioned plaintiff in the men’s bathroom at
work by exposing his genitalia to plaintiff and telling plaintiff that he was “good looking” and by saying -“If I was gay, I would like to be with somebody like you.” (Resp. at 3.) Plaintiff complained to Chymka that
the remarks made him uncomfortable. Plaintiff claims another employee, Joe Estrada, witnessed the
encounter.
Fourth, Chymka allegedly wrote plaintiff up for numerous disciplinary violations which plaintiff
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STATEMENT
believes were unwarranted and which he says were later resolved in his favor after he filed grievances. As
plaintiff states in his affidavit, “I received a substantial upsurge of documentation of purported issues
affecting my work following Chymka’s placement as my supervisor in September, 2005.” (Aff. ¶ 16.)
Plaintiff complained three times about Chymka’s behavior. First, as described above, he complained in
the bathroom on June 6th. Second, a few weeks before the bathroom incident, plaintiff said to Chymka:
“You know, Steve, I don’t appreciate you talking about little boys and I don’t appreciate you telling me
about, you know, you go out with your -- you know, you used to go out with your daughter’s girlfriend when
he was 40 at the time and she was 17. I don’t want to hear that stuff.” (Pl. Dep. 133-34.) Third, around the
same time (i.e. late May 2007 and also before the bathroom incident), plaintiff saw Tom Madigan, the plant
manager, in the parking lot and said to him: “Well, I’m having problems with Steve Chymka. [] He is
harassing me. He’s following me everywhere I go. He is constantly on me . . . and he’s making sexual
innuendos to me.” (Pl. Dep. 136.) When Madigan asked for more detail about the alleged sexual innuendos,
plaintiff responded: “Well, you know, he’s saying certain things that make me uncomfortable, . . . he’s
calling me, you know, handsome and whatever and I just don’t -- I didn’t really want to get into the whole
thing with him but I just kind of, you know, let him know that I wasn’t appreciating it.” (Id.)
Analysis. Plaintiff’s Title VII claim has two parts: (1) he was subjected to a hostile environment; and (2)
in retaliation for complaining about it, he was fired. The latter part is his main focus, as he has admitted that
the hostile environment had no affect on his ability or desire to work for the company and that he spent the
majority of his day on the road and only interacted with Chymka briefly upon his arrival to work. See Def.
Facts 44, 47. Although Holland offers a number of arguments for why plaintiff’s Title VII claim fails, we
focus on three arguments, finding them dispositive. First, plaintiff has not shown that Chymka’s harassment
was motived by a desire to discriminate against men in favor of women. Second, plaintiff failed to complain
about the most serious allegation of harassment. Third, Holland had a legitimate non-discriminatory reason
for firing plaintiff.
I. The “Because of” Requirement.
This is a same-sex harassment claim. In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75
(1998) the Supreme Court recognized that such a claim is viable under Title VII because the statute does not
prohibit a sex discrimination claim merely because “the harasser and the harassed employee are of the same
sex.” Id. at 76. The key inquiry is whether one sex is treated better than the other. In the nomenclature of
Title VII, the plaintiff must show that the behavior was perpetrated “because of” the victim’s sex. Id. at 79.
Harassing behavior is not “automatically discrimination because of sex merely because the words used have
sexual content or connotations.” Id. at 80. The mere fact that a harasser engaged in sexual behavior -whether it be teasing, juvenile pranks, “male-on-male horseplay,” boorish behavior, “intersexual flirtation,”
or even sexual propositions -- does not necessarily mean Title VII was violated either. Id. at 81. For example,
Title VII is not violated if a supervisor sexually propositions both male and female employees because,
although such behavior would likely be viewed as sexual harassment in a colloquial understanding, it is not
motivated by the victim’s sex. See Holman v. State of Indiana, 211 F.3d 399, 403 (7th Cir. 2000) (“because
Title VII is premised on eliminating discrimination, inappropriate conduct that is inflicted on both sexes, or
is inflicted regardless of sex, is outside the statute’s ambit”) (emphasis in original). At the other end of the
spectrum are cases where the harasser focuses on one individual, not out of a desire to discriminate based on
gender, but due to countless other reasons ranging from personality conflicts to job rivalries. See, e.g.,
Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000) (“It is clear that [the two male harassers]
lodged sexually explicit insults at [plaintiff] to express their acrimony over work-related disputes, and not to
harass him because he is a man.”).
Relying on these principles, the Supreme Court in Oncale set forth three ways a Title VII plaintiff could
meet the “because of” requirement in a same-sex case. First, a plaintiff can show that he received “explicit or
implicit proposals of sexual activity, provided that he also comes forward with “credible evidence” that the
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STATEMENT
harasser was homosexual. 523 U.S. at 80. Second, a plaintiff can show that he was harassed “in such sexspecific and derogatory terms” so as to make it clear that the harasser is motivated by a “general hostility to
the presence” of one sex being in the workplace. Id. Third, a plaintiff may offer direct comparative evidence
showing that the harasser in a mixed-sex workplace treated one sex better than the other. Plaintiff argues he
can prevail under all three Oncale methods. We disagree.
We begin with the second and third methods because, although they are plaintiff’s weaker arguments,
they highlight an important larger point. Did Holland -- which is the only defendant as Chymka cannot be
liable under Title VII -- treat women better than men? Plaintiff’s case rests on this broader assertion. When
viewed from this macroscopic perspective, however, plaintiff’s claim seems doomed from the outset. This is
because all truck drivers and all dockworkers at the company were men. Plaintiff cannot remember a woman
ever working as a truck driver. It appears that all the supervisors were men -- at least every employee
mentioned in the current record is a man. The only women at the company, according to plaintiff, were six to
eight women doing billing “at night” (Pl. Dep. 55.) There is no evidence that the men driving trucks around
Chicago during the day interacted with the women doing billing at night. Accordingly this was not a mixedsex workplace in any practical sense. We thus find plaintiff cannot proceed under the third method. For
similar reasons, he also cannot succeed under the second method. Again, given the all-male workplace for
drivers, it is hard to see how any general hostility to men exists. Focusing specifically on Chymka, there is
likewise no evidence that his comments to plaintiff were based on a broader hostility to men. Importantly,
plaintiff states that Chymka was never seen picking on any other man aside from him. (Pl. Dep. 223.)
We turn then to the first Oncale method, which is the closest fit and which requires an in-depth review of
the facts. This method has two parts. A plaintiff must show that he received a sexual proposition and provide
“credible evidence” the person making it was a homosexual. We address the latter requirement, finding it
dispositive. Is there credible evidence Chymka was gay? The short answer is no. To begin with, plaintiff has
offered a speculative and convoluted explanation about Chymka’s sexual orientation. When asked in his
deposition whether Chymka was gay, plaintiff surprisingly said no but instead speculated that he was
bisexual. (Pl. Dep. 186.) Plaintiff did not explain the basis for this distinction. Perhaps it is because plaintiff
has also complained that Chymka once bragged about dating a 17-year old girl (more on his below). See
Johnson v. Hondo, Inc., 125 F.3d 408, 412-13 (7th Cir. 1997) (plaintiff’s speculation that harasser was gay
was “strained” because harasser made sexual comments about liking women). But even if we accept
plaintiff’s bisexual theory, this raises a separate problem. As noted above, the Seventh Circuit has held that a
bisexual harasser does not violate Title VII. Holman, 211 F.3d at 401. Recognizing this problem, plaintiff
asks us to accept another speculative proposition -- yes Chymka was bisexual in general, but he was not a
“practicing” one, at least not while working at Holland. (Resp. at 8.)
Plaintiff has no independent evidence (from, say, co-workers or Chymka’s friends) that he was gay or
bisexual. Plaintiff’s only evidence comes from his own interactions with Chymka -- namely, the looks and
comments and the bathroom incident. The comments and looks are, in this Court’s view, clearly insufficient.
As for “high maintenance,” the comment used by far the most, plaintiff doesn’t explain how it shows
Chymka was gay. According to www.urbandictionary com, the phrase is defined as “[r]equiring a lot of
attention.” A brief search in Westlaw’s ALLFEDS database likewise does not reveal any obvious or
consistent sexual meaning given to this phrase. See, e.g., Hinds v. Spring/United Mgmt. Co., 523 F.3d 1187,
1203 (10th Cir. 2008) (company referred to plaintiff as “high maintenance” because he “requir[ed] high-level
management and human resources time”). These descriptions actually fit better with defendant’s theory that
plaintiff had a history of workplace problems requiring extra managerial time. Significantly, when plaintiff
was asked how he interpreted the phrase, he essentially shrugged his shoulders: “I don’t know. I just never
paid much attention to it. I really didn’t care what he said.” (Pl. Dep. 127) Not only is plaintiff unable to
attribute any sexual content to the phrase, he also makes clear he didn’t find it bothersome. The other three
phrases -- “cutie pie,” “How we doing today, lover,” and “hi handsome” -- at least on their face could be
consistent with a romantic overture, but they are so vague and bland as to be equally if not more consistent
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STATEMENT
with the theory that Chymka was joking. Plaintiff has not provided any witness to corroborate his
interpretation. He also fails to give any description of how or when the comments were made.
As for the sexual looks, the same problems exist. How a person looks at another (absent contextual
evidence) is hard if not impossible for a jury to objectively evaluate. The Seventh Circuit in general has been
skeptical of such vague claims. See, e.g., Vance v. Ball State Univ., 646 F.3d 461, 470 (7th Cir. 2011)
(“[m]aking an ugly face at someone and staring, while not the most mature things to do, falls short of the
kind of conduct that might support a hostile work environment claim”).
Although the bathroom incident is a much closer call, we still find it is not credible evidence as required
by Oncale. To begin with, plaintiff portrays the incident in his brief as more dramatic than it really was. He
states (at p. 2-3): Chymka “accost[ed] Warner in the men’s restroom, exposing his genitalia to Warner,
putting his hand on Warner’s shoulder (while exposing his genitalia to Warner).” This description makes it
sound as if Chymka walked up to plaintiff and, out of the blue, exposed his genitalia in a bold and uncouth
way. But as plaintiff’s deposition makes clear, the alleged exposure occurred when the two men were
standing side-by-side at urinals. Specifically, the exposure occurred while Chymka was urinating. This puts
the incident in a different light and makes it much more ambiguous. It is true that Chymka, according to
plaintiff, said that “If I was gay, I would like to be with somebody like you.” But read literally, the
subjunctive “if I was gay” would mean that Chymka was not gay. Plaintiff has not explained why this literal
meaning should counterintuitively be interpreted as a sexual invitation. To be clear, a jury could certainly
believe that Chymka was acting unprofessional or was trying in some way to irritate or tease plaintiff. But
the larger inquiry under Oncale is whether he was gay. There is no credible evidence he was.
One further point about the bathroom incident. Plaintiff has repeatedly touted the fact that he has a
witness to corroborate his story. In his affidavit, he states that Joe Estrada was “present when Chymka
accosted [him].” (Pl. Aff. ¶ 27; emphasis added.) Here again, plaintiff’s rhetoric is not supported by the
evidence. Plaintiff’s affidavit makes it sound as if Estrada witnessed the exposure. But plaintiff in his
deposition conceded that Estrada was in the bathroom stall at the time. (Pl. Dep. 134) He thus could not have
seen the exposure. More significant, however, is the fact that plaintiff never got an affidavit from Estrada,
despite being given extra time to procure affidavits. This suggests Estrada would not corroborate plaintiff.
II. Failure to Complain About the Bathroom Incident.
Even if the bathroom incident were enough to tip the balance and overcome the Oncale problem,
plaintiff’s claim would fail for a separate reason. He never reported the bathroom incident to anyone at the
company, and there is no evidence anyone knew about it. He did complain to Madigan, two weeks before the
incident, telling him Chymka had made sexual comments. If plaintiff was willing to complain about tepid
comments such as “hi handsome,” then why did he not complain about the more flagrant and serious
bathroom incident? Not only did plaintiff not complain at the time to anyone in management, he never
mentioned it at the Local meeting, nor told it to the Grievance Committee, nor did he mention it in his
October 2007 letter to his union (even though he was willing to reveal that he and Chymka had a
disagreement at an earlier company). The first time he mentioned the incident appears to be in his deposition
in 2010, three years after the event. (Plaintiff claims he told the EEOC in 2008, but we could find nothing in
the record to confirm this claim.) By failing to notify the company, plaintiff did not give it a chance to
address the problem. All the company knew was that Chymka had made sexual comments and, even then,
plaintiff admits he only told Madigan about some of them.
Viewing the record as a whole, we cannot help but notice a pattern in the way plaintiff has complained
and communicated with the company. He has shown a tendency, for whatever reason, to keep silent initially
about an event or issue and then raise it later (in some cases much later and often after earlier explanations
were unsuccessful). As noted above, he waited for three years to reveal the bathroom incident and did so only
after other arguments were found unpersuasive. Similarly, as discussed below, he initially did not mention
the family crisis explanation. Yet another puzzling instance is when he finally decided to confront Chymka in
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May 2007. This was the first time plaintiff had complained to Chymka despite having heard the four
comments for over 18 months. This delay in complaining to Chymka itself could be viewed with suspicion,
but what it more difficult to understand is that when plaintiff finally confronted Chymka, he did not mention
any of the four comments forming the basis of his current claim. Instead he complained about two other
comments not a part of this lawsuit. One is a comment Chymka made, at some unspecified time and place,
about “little boys.” Beyond this two-word description, plaintiff offers no explanation about what the phrase
means, where it was said, or why it was objectionable. The second comment is when Chymka told plaintiff
that he once dated his “daughter’s girlfriend when he was 40 at the time and she was 17.” (Pl. Dep. 133-34.)
But it turns out this comment was made when Chymka and plaintiff worked together for a different company,
called Hyman, well before they worked together for Holland. The time was between 1993 and 1996. (Pl.
Dep. 35.). In other words, plaintiff waited over eleven years before complaining about the 17-year-oldgirlfriend comment. It was this comment, made only once while the two men were at a truck stop over a
decade earlier, that was foremost in plaintiff’s mind when he finally confronted Chymka in May 2007.
This latter comment also suggests the two men had a simmering dispute going back many years. It casts
doubt on plaintiff’s theory that Chymka was trying in 2005 and 2006 to woo him into a romantic relationship
or sexual tryst. Rather, it supports the alternative interpretation that Chymka made the comments such as “hi
handsome” to irritate plaintiff because the two men did not like each other. It does not help matters that when
first asked in his deposition about whether he got along with Chymka when they worked at Hyman, plaintiff
did not mention this comment and gave the impression the two men were friendly. See Pl. Dep. 40 (testifying
that he and Chymka got along at Hyman and Chymka “seemed like he was okay”). But later in his
deposition, when confronted with his October 2007 letter to his Union, plaintiff conceded the two men had
disagreements at Hyman, thus suggesting they were not friendly. (Pl. Dep. 212.)
III. Pretext.
Even if plaintiff could get past the above two hurdles, we would still grant summary judgment on the
issue of pretext. For plaintiff to ultimately prevail, he must prove that the company’s explanation for firing
him (proven dishonesty) was a cover up -- in other words, a lie. O’Leary v. Accretive Health, Inc., 657 F.3d
625, 635 (7th Cir. 2011). It is not enough to show that it was unfair or even inaccurate. Id. Plaintiff tries to
poke holes in the company’s explanation by raising a number of different arguments. As explained below,
these arguments are insufficient to avoid summary judgment.
Logically, the first point to address is plaintiff’s assertion that the surveillance report is hearsay and that
Holland should have submitted an affidavit from its author. (Pl. Resp. at 7.) Plaintiff seems to be suggesting
(without explicitly making the argument) that his manifest was accurate. As a matter of litigation strategy, it
is surprising plaintiff ventures down this path. He has made a number of statements essentially admitting the
manifest was inaccurate. In his deposition, he testified that “the first couple stops [on his manifest] are all
accurate” and then he went on to explain how the family crisis emerged, the clear implication being that the
manifest was inaccurate after the first stops. (Pl. Dep. 170-71.) He also testified that he “wasn’t paying
attention [to his manifest] because I had other things on my mind.” (Id. at 169-70.) Plaintiff also admitted
there were “other discrepancies” aside from the two-hour lunch. (Id.) In his affidavit, plaintiff stated that his
manifest “showed discrepancies.” Perhaps the strongest evidence is plaintiff’s deposition testimony about his
conflict with Urbaniak during the grievance process. Plaintiff testified he wanted to be “honest” with the
Committee about the Unisource error, but Urbaniak told him to keep quiet. While plaintiff blames Urbaniak,
the larger inescapable conclusion is that plaintiff was not honest. It is really a double admission of
dishonesty, originally on the manifest and then again later at the hearing. And it is disingenuous for plaintiff
to ask Holland to produce the authors of the surveillance report because one of them was present at the Local
meeting on August 28, 2007. (Pl. Dep. 167.) But plaintiff didn’t raise questions then about the authenticity of
the report. Now, long after it has been assumed the report was accurate, plaintiff tries to cast doubt on it.
Plaintiff next offers various explanations as to why the manifest was false, his main excuse being the
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family crisis. This argument, while more reasonable, fails to cast doubt on the company’s explanation. By
arguing he was justified in taking a two-hour lunch to deal with the family crisis, plaintiff overlooks the
nature of the violation. It is not whether he was justified in taking a two-hour lunch but whether he honestly
reported what he did. This is not a trivial issue. As the company has explained, the margins in the trucking
industry are small, and the company requires drivers to fill out a manifest recording the time (accurate to the
minute) of each arrival and departure. (Blubaugh Aff. ¶¶ 5-7.) Drivers are also required to “maintain constant
communication with the terminal’s dispatch office, acknowledging their whereabouts,” and to inform
dispatch of delays over 15 minutes. (Id.) Accurate real-time reporting is important to the company.
As for the merits of the family crisis excuse, did the company have a rational basis for disbelieving it?
Yes. For one thing, the company could find it suspicious that plaintiff did not disclose it until almost a month
later. On the day of the crisis, he talked to the dispatcher but did not disclose that he was dealing with a
family crisis, saying later it was none of the dispatcher’s business. Four days later, when asked to explain
why he took a two-hour lunch, he again didn’t mention it, stating that he couldn’t remember what he did. The
company reasonably could have found this claim of faulty memory to be suspicious given that the event
happened only four days earlier and involved an unusual and important matter.
Another key fact underlying the company’s decision not to believe plaintiff is that he had a history of
violating company rules, including cases where he took a long lunch. Specifically, the company has listed 15
incidents where plaintiff was disciplined. (Def. St. of Fact # 27.) The first is on December 8, 1997, and seven
of the 15 incidents occurred before Chymka became plaintiff’s supervisor. (Id.) For example, on January 9,
2004, plaintiff was given a warning letter for misuse of company time when he took “excessive time while
delivering freight” and then was “unable to offer a reasonable explanation.” (Ex. 20; Pl. Dep. 123). Similarly,
on November 10, 2005, plaintiff was given a warning letter for taking a long lunch. (Ex. 21 at D00415; Dep.
at 143 (plaintiff admits to conduct).) A number of these incidents are similar to the allegations here. Although
plaintiff complains in general that the violations were unfounded, he admitted in his deposition that, for a
number of them, he either did the conduct alleged or he couldn’t remember whether he did. Thus, even if we
give plaintiff the benefit of the doubt and assume that some of the incidents were not well founded it is still
true and undisputed that he had a significant number of violations.
But the biggest problem for plaintiff’s pretext argument is that the Grievance Committee upheld the
company’s decision. This Committee was independent of the company, and it came to the same conclusion as
the company after listening to plaintiff’s arguments. This is strong evidence that the company’s decision had
a rationale basis. Plaintiff tries to cast doubt on the Committee’s decision by speculating that a Union
member on the Committee “had in the past been friends of Holland terminal manager Tom Madigan. (Pl. Aff.
¶ 14.) But this evidence is hearsay and vague, and insufficient to allow a jury to conclude that the company
somehow through this friendship (assuming it existed) manipulated the grievance committee.
We turn finally to plaintiff’s third major argument, which is that the punishment did not fit the crime.
Although this argument is his most reasonable, we still find it insufficient. Plaintiff argues that other drivers
who were fired for proven dishonesty were later reinstated after being given a two-week suspension. The
difficulty with this argument is that it does not cast doubt on the company’s explanation. The company has
consistently maintained that plaintiff’s long history of workplace problems distinguished his case. As Neal
London stated, “[i]f it was anybody but Craig Warner, I’d believe it.” To get around this fact, plaintiff would
have to point to other workers who were fired and who had a similar long history of violations. See Amrhein
v. Health Care Service Corp., 546 F.3d 854, 860 (7th Cir. 2008) (other employees did not have same
disciplinary history). This he has not done. Moreover, by plaintiff’s own admission, he was not truthful in the
grievance process. For all we know, these other men, unlike plaintiff, were honest after being confronted. It
is plaintiff’s burden to marshal the evidence on this point. For these reasons, the motion for summary
judgment is granted.

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