Bush v. Moran Industries, Inc. et al

Filing 138

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 1/14/2014:Mailed notice(rth, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DWAYNE A. BUSH,
Plaintiff,

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v.
J&J TRANSMISSION, INC. and
JOHN GIBLIN,
Defendants.

11-cv-289
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Dwayne Bush (“Bush”), an African-American male, brings forth this action against
defendants J & J Transmissions, Inc., an Illinois corporation doing business as Mr. Transmission,
and John Giblin ( “Giblin”), alleging violations of his right to contract under 42 U.S.C. § 1981.
Giblin also alleges several state law claims for violations of the Illinois Consumer Fraud and
Deceptive Practices Act, common law fraud, and declaratory and injunctive relief. The
defendants move for summary judgment pursuant to Fed. R. Civ. P. 56(c). For the following
reasons, the defendants’ motion is granted in its entirety.
Background
Bush is a resident of Stone Mountain, Georgia. Giblin is an Illinois resident who
operates a Mr. Transmission repair facility in Bourbonais, Illinois. On September 21, 2010,
Bush drove his 1994 Cadillac Concourse from his home in Georgia to his brother’s home in
Monee, Illinois to attend his daughter’s wedding. While traveling, the “Service Engine Soon”
light appeared on the vehicle’s instrument panel and Bush contacted his mechanic in Georgia
who suggested that he take his car to a local repair shop to determine if there was a problem with
the vehicle’s transmission. It is at this point that the facts at the crux of this case come to light.
The Court notes that a contentious relationship between a car repair mechanic and customer is
not unusual.
On September 28, 2010, Bush brought his car to Giblin’s Mr. Transmission franchise
located in Bourbonais. Giblin and his employees ran some diagnostic tests on the vehicle
without charge. The parties dispute the precise nature of the diagnostic tests performed, whether
Giblin test drove the car, and whether there were issues with the fourth gear of the car on that

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date. However, both parties acknowledge that at some point Giblin discovered error codes from
the vehicle’s onboard computer which indicated possible problems with the car’s transmission.
Giblin told Bush that further tests would be necessary to properly diagnose what was wrong with
the car. On October 1, 2010 Bush left his car at the Mr. Transmission facility for further
examination.
After examining the car further, Giblin called Bush and informed him that the
transmission needed to be rebuilt or replaced. On October 2, 2010, Bush and his brother went to
Mr. Transmission to view exactly what was wrong with the vehicle and what parts Giblin stated
needed to be replaced. Giblin showed Bush damaged transmission parts; however, Bush asserts
that the parts shown to him were not from his transmission or vehicle. The parties dispute the
precise details of the argument that ensued and who was “hollering” at whom; however, it is
undisputed that some contentious argument occurred between the parties. Notwithstanding the
argument, Bush ordered a Coleman-Taylor transmission from a third party and agreed to have
Giblin install that transmission in his vehicle for $750.00 plus the costs of fluid. The ColemanTaylor transmission was delivered on October 8, 2010 and installed in Bush’s vehicle on October
11, 2010. Giblin informed Bush that the transmission had been installed and that he could come
and pick up his vehicle. When Bush arrived and attempted to pay Giblin with his debit card,
Bush asserts that Giblin told him that while he typically accepted debit card payments from
customers, he would not accept such payment “from you guys.” 1 Giblin asserts that he called
Bush beforehand and informed him that he would need to pay his bill via a certified check or
cash; however, Bush denies that Giblin ever told him this. Bush also alleges that Giblin’s wife
walked pass him and referred to him and his brother as “you people.” Giblin informed Bush that
if he did not come and pick up his vehicle, he would begin charging Bush a storage fee of $20.00
a day. There is no indication that Bush ever retrieved the vehicle. On January 14, 2011, Bush
filed this instant action alleging that Giblin discriminated against him in violation of 42 U.S.C. §
1981 as well as several state law claims. The defendants move for summary judgment arguing
that Bush fails to demonstrate discriminatory intent.

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There is some confusion as to whether Giblin said “you guys” or “you two guys.”

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Legal Standard
A party seeking summary judgment has the burden of showing, through “pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any,” that there are no genuine issues of material fact that would prevent judgment as a matter of
law. Fed. R. Civ. P. 56(c). On a motion for summary judgment, courts “must construe all facts
in the light most favorable to the non-moving party and draw all reasonable and justifiable
inferences in favor of that party.” Allen v. Cedar Real Estate Group, LLP, 236 F.3d 374, 380
(7th Cir. 2001). The nonmoving party may not rest upon mere allegations in the pleadings or
upon conclusory statements in affidavits; rather, he must go beyond the pleadings and support
his contentions with proper documentary evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 32223, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
Discussion
42 U.S.C. § 1981 “prohibits discrimination in the making and enforcement of private
contracts.” Black Agents & Brokers Agency, Inc. v. Near N. Ins. Brokerage, 409 F.3d 833, 837
(7th Cir. 2005). Specifically, § 1981 provides that “[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). “The term ‘make and
enforce contracts’ includes the making, performance, modification, and termination of contracts,
and the enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.” 42 U.S.C. § 1981(b). To establish a claim under § 1981, Bush must prove that: 1)
he is a member of a racial minority; 2) Giblin intended to discriminate against him on the basis
of race; and 3) the discrimination concerned any of the activities enumerated in § 1981. See
Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 756 (7th Cir. 2006). Giblin concedes that Bush
satisfies the first and third prongs, but argues that Bush fails to establish discriminatory intent.
Title VII and §1981 claims require an equivalent analysis. See Williams v. Waste
Management of Illinois, Inc., 361 F.3d 1021, 1028 (7th Cir. 2004). Therefore, in order to prove a
case under § 1981, a plaintiff can present evidence of discriminatory intent using either the direct
or indirect methods of proof. Kundacina v. Concession Servs., No. 96 C 4422, 1997 U.S. Dist.
LEXIS 6021, at *5-6 (N.D. Ill. Apr. 30, 1997). Under the direct method, Bush must show that
his race was a motivating factor in Giblin’s refusal to allow him to pay with his debit card.
Direct evidence is “evidence which if believed by the trier of fact, will prove the particular fact
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in question without reliance upon inference or presumption.” Id. at *6-7 (internal quotations
omitted). Where no direct evidence exists, discriminatory intent may be demonstrated using the
indirect-burden shifting method established in McDonnell Douglas Corporation v. Green, 411
U.S. 792, 802-805, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). Under the indirect method,
“the plaintiff [first] has the burden of proving by the preponderance of the evidence a prima facie
case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the
burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the
[defendant’s] rejection.’ Third, should the defendant carry this burden, the plaintiff must then
have an opportunity to prove by a preponderance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were a pretext for discrimination.”
Kundacina, 1997 U.S. Dist. LEXIS 6021, at *11-12 (citing Collins v. State of Illinois, 830 F.2d
692, 698 (7th Cir. 1987)).
Here, there is no direct evidence of discriminatory intent. Accordingly, Bush argues that
Giblin’s reference to him and his brother as “you guys” or “you two guys” and Giblin’s wife
reference to them as “you people” can reasonably be inferred to indicate racial animus. As stated
earlier, a contentious relationship between a car repair mechanic and car owner is not unusual.
In this light, the Court notes that Giblin presents a legitimate, nondiscriminatory reason for his
refusal to accept debit card payments from Bush. Specifically, Giblin claims that he was
concerned about debit card payments from the plaintiff after hearing Bush state that he would
charge his transmission payment back if he had a problem with it. Bush denies ever making such
a statement. At summary judgment all inferences must be made in favor of the non-movant,
Scaife v. Cook County, 446 F.3d 735, 738-39 (7th Cir. 2006); accordingly, for present purposes
this disputed fact resolves in Bush’s favor and this Court will assume that Bush never made such
a statement concerning charging back payments. Nonetheless, Giblin also argues that his
concern over receiving payment via debit card from Bush was due to their contentious
interactions throughout the diagnostic testing and installation of the new transmission.
In order to establish pretext a plaintiff must show that the defendant is lying or that the
defendant’s reasoning has no basis in fact. Alexander v. Biomerieux, Inc., 485 F. Supp. 2d 924,
933 (N.D. Ill. 2007); see also Lesch v. Crown Cork & Seal Company, 282 F.3d 467, 473 (7th Cir.
2002). It is not sufficient for the plaintiff to merely prove that the defendant’s reason was
doubtful or mistaken. Alexander, 485 F. Supp. 2d at 933; see also Crim v. Board of Educ., 147
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F.3d 535, 541 (7th Cir. 1998). While “it is undeniable that the phrase ‘you people’ [and similar
phrases] can be used in a derogatory manner,” here, there is no evidence that this was Giblin’s
intent and Bush fails to proffer any arguments or evidence that Giblin’s stated nondiscriminatory
reason is pretextual. Whittaker-Ardson v. Denneys Rest., No. No. 05 C 6116, 2007 U.S. Dist.
LEXIS 72036, at *11-14 (N.D. Ill. Sept. 26, 2007). Both parties acknowledge that some level of
contentious arguments ensued when Bush returned to the Mr. Transmission facility on October
1, 2010. Regardless of who started the argument or the precise language exchanged between the
parties, there was clearly some aggressive words exchanged between the parties so much so that
a physical altercation almost resulted. While Giblin claims that Bush taunted him to come
outside to engage in a fight to “settle this man to man,” Bush claims that he only aggressively
responded to Giblin after he came outside. The details of this near fight however are immaterial.
Clearly the interactions between the parties were contentious. Giblin cites this as one of his
reasons for refusing Bush’s debit card payment and Bush proffers no arguments or evidence that
such stated reason is pretextual. The defendants’ motion for summary judgment is granted as to
plaintiff’s §1981 claims. In accordance with 28 U.S.C. § 1367(c)(3), this Court declines to
exercise supplemental jurisdiction over plaintiff’s remaining state law claims and Bush’s
complaint is dismissed in its entirety.
Conclusion
For the foregoing reasons, defendants’ motion for summary judgment is granted and
plaintiff’s complaint is dismissed in its entirety.

IT IS SO ORDERED.
Date: January 14, 2014
____________________________
Sharon Johnson Coleman
United States District Judge

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