Yang v. FedEx Freight, Inc. et al

Filing 58

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 6/23/2016: Defendants' motion for summary judgment, 44 , is granted. Enter judgment in favor of defendants, and terminate civil case. [For further detail see attached order.] Notices mailed by Judicial Staff. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID YANG,
Plaintiff,

No. 15 CV 1037

v.
FEDEX FREIGHT, INC., ROBERT VANDE
HEI, ROGER MACO, and KEVIN LEE,

Judge Manish S. Shah

Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff David Yang worked for defendant FedEx Freight, Inc., first as a
dock worker and then as a driver. Yang believes he experienced a number of
injustices while working for FedEx, and he attributes this poor treatment to his
managers’ and co-workers’ racist attitudes against Asian Americans. Over four
years into his employment, Yang got into a heated exchange with a co-worker. Both
employees complained to management, and Yang reported that the co-worker used
a racial slur against him. Management spoke with each employee individually, and
relieved both of them of duty until a formal investigation could be completed and a
disciplinary determination could be made. In his conversation with management,
Yang came to believe that he had no choice but to resign and seek employment
elsewhere, so he tendered his resignation the next day. He later learned that his coworker returned to work after just three days. Yang filed suit against FedEx and
some of his supervisors under 42 U.S.C. § 1981 for racial discrimination, hostile

work environment, and retaliation. Defendants move for summary judgment. For
the following reasons, defendants’ motion is granted.
I.

Legal Standards
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. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.
2014); Fed. R. Civ. P. 56(a). A genuine dispute as to any material fact exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking
summary judgment has the burden of establishing that there is no genuine dispute
as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A
court must “construe all facts and reasonable inferences in the light most favorable
to the non-moving party.” Apex Digital, Inc. v. Sears, Roebuck, & Co., 735 F.3d 962,
965 (7th Cir. 2013).
When a proposed statement of fact is supported by the record and not
properly controverted by the opposing party, that statement will be accepted as
true. See N.D. Ill. Local Rule 56.1(b)(3)(c); id. 56.1(a); see also Smith v. Lamz, 321
F.3d 680, 683 (7th Cir. 2003). To adequately dispute a factual statement, the
opposing party must cite specific support in the record. See N.D. Ill. Local Rule
56.1(b)(3). Uncorroborated, self-serving testimony may be used to dispute a material
fact, but only if based on personal knowledge or firsthand experience. See
Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010). But a denial

2

based on argument or conjecture does not create a genuinely disputed issue of
material fact. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006).
II.

Facts1
Plaintiff David Yang, an Asian American man, began working for defendant

FedEx Freight, Inc. on October 12, 2009. [48] ¶¶ 3, 9. FedEx transports large freight
for businesses that do not have their own fleets of trucks, employing drivers to move
the shipments between its service centers and between service centers and
customers, and employing dock workers to load and unload freight at the service
centers. [48] ¶ 8. Yang started out as a part-time dock worker at FedEx’s Aurora
service center and continued in that capacity until January 31, 2011. [48] ¶ 10.
In the spring of 2010, Yang asked his manager at the Aurora service center,
defendant Robert Vande Hei, about applying to the company’s “dock-to-driver”
program. [54] ¶ 2. Admission to that program would allow Yang to become a
driver—a position with higher pay than his dock worker job. [54] ¶ 1. Yang believed
he needed Vande Hei’s approval to apply for the program, although he did not have
a clear idea as to how the application process worked. [48] ¶ 65; [54] ¶ 2. Vande Hei
told Yang that he would get back to him later. [54] ¶ 3. Yang claims that he followed
up with Vande Hei numerous times, but cannot recall the details of those
conversations. [48] ¶ 69; [54] ¶ 3. Yang never applied to the program at Aurora, and
The facts are largely taken from Yang’s response to defendants’ LR 56.1 statement, [48],
and defendants’ response to Yang’s LR 56.1 statement, [54]. Any arguments raised in the
LR 56.1 statements will be disregarded. Only those facts which are properly controverted
will be considered disputed. Where a party disputes a fact but fails to follow LR 56.1’s
direction to cite to supporting material in the record, that fact will be considered
undisputed.
1

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four non-Asian-American co-workers applied for and gained admission to the
program. [48] ¶ 65; [54] ¶¶ 4–5. Also while at the Aurora service center, on more
than ten occasions, Yang reported to work at his scheduled start time, but had to
wait two hours before he could start his work. [54] ¶ 6.
On February 1, 2011, FedEx Freight officially merged with a separate entity,
FedEx National. [48] ¶ 11. FedEx National operated a service center in
Schaumburg, Illinois. [48] ¶ 12. In advance of that merger, on December 16, 2010,
Yang put in a request with Vande Hei to transfer from the Aurora service center to
the Schaumburg location, because it was substantially closer to Yang’s residence.
[48] ¶ 12; [54] ¶ 7. Vande Hei approved Yang’s transfer request on December 16,
2010, and defendant Roger Maco, a FedEx human resources employee, approved the
request the next day. [48] ¶ 14. But when Yang asked another human resources
representative for an update on January 17, 2011, he was told that the request had
never been sent in, and that there was only one dock worker position available at
the Schaumburg facility. [54] ¶ 9. The manager of the Schaumburg facility approved
the transfer request on that day, and Vande Hei sent Yang an offer letter on
January 19, 2011. [48] ¶ 15. On February 1, 2011, the scheduled date of the merger
and the first day his transfer could go into effect, Yang started work as a part-time
dock worker at the Schaumburg facility. [48] ¶¶ 13, 16.
In September 2011, Yang applied for the dock-to-driver program at
Schaumburg and was admitted almost immediately. [48] ¶¶ 18, 71. He began the
program on September 19, 2011, and was promoted to a driver position on

4

November 21, 2011, after which he transported freight between the Schaumburg
service center and customers. [48] ¶ 18. Although Yang received his requested
promotion, he believes he was not treated fairly as a driver. For example, Yang
claims that he received a disproportionate number of route assignments that
required lift-gate trailers, which are used to service residential customers and
businesses that do not have loading docks. [48] ¶ 49; [54] ¶ 13. Drivers using those
trailers employ hydraulic lifts to move skids of freight between the truck and the
ground, and use pallet jacks to maneuver the freight skids. [48] ¶ 49. Yang did not
like the lift-gate assignments because he had to move the freight. [48] ¶ 52. But he
claims that he received lift-gate assignments almost every day. [54] ¶ 13.
According to FedEx, drivers bid on shift start times based on their seniority,
and all route assignments, including lift-gate assignments, are assigned to a driver
whose start time closely follows the loading of the truck.2 [48] ¶ 47. Defendant
Kevin Lee, who had become manager of the Schaumburg facility on September 16,
2013, testified that he had reviewed records related to lift-gate assignments, and
found that during the six months he and Yang worked together, a Hispanic driver
received the most lift-gate assignments, a Caucasian driver received the secondhighest number of assignments, and Yang and another Caucasian driver tied for

In his affidavit, Yang claims that some lift-gate routes were assigned to him, even when
those trucks were fully loaded and ready to go before his scheduled start time, and nonAsian-American employees were available. But this contradicts his deposition testimony
that he did not know how lift-gate routes were assigned or when they were supposed to
start, and “a deponent may not use an affidavit sworn to after a deposition to contradict
deposition testimony without giving a credible explanation for the discrepancies.” Abraham
v. Washington Group Int’l, Inc., 766 F.3d 735, 741 (7th Cir. 2014). Yang’s statement in his
affidavit is not considered part of the summary judgment record.
2

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third with 75 assignments each.3 [48] ¶ 55. Lee also identified four other Caucasian
drivers and one Hispanic driver who performed lift-gate deliveries consistently. [48]
¶ 54. Yang concedes that two Caucasian employees used the facility’s lift-gate
trailers on a semi-regular basis, but claims that if one of those employees did not
use a lift-gate trailer, a minority employee would replace him. [54] ¶ 14. Yang also
claims that he injured himself while operating a lift-gate trailer, and after he
recovered and returned to work, he was given lift-gate assignments even after
informing nonparty Operations Manager John Carey that he did not want those
assignments.4 [45-1] at 46; [54] ¶ 21.
Yang also claims that he was often forced to use equipment that was in poor
condition. [54] ¶ 22. He states in his affidavit that he complained about his faulty
equipment to managers John Carey, Paula Litch, and Tom Kress, and that they
ignored him and signaled that his complaints could lead to termination.5 [54] ¶ 23.
Yang’s complaints apparently never reached Lee, who testified that he was unaware

3

Yang accuses Lee of lying about these statistics, but presents no evidence to dispute them.

It is unclear if Yang ever notified management or human resources about the lift-gate
assignments. His response to defendants’ LR 56.1 statement of facts suggests that he did
not for fear of retaliation, see [48] ¶ 58, and he explicitly testified at his deposition that he
did not, see [45-1] at 68, but he also testified that he told Operations Manager Carey that he
did not want any lift-gate assignments after injuring his back, see [45-1] at 46. Because
credibility determinations are reserved for a jury, Yang’s conflicting testimony will be
resolved in his favor, and it will be assumed that he did complain to management about his
lift-gate assignments.
4

Yang does not provide any details regarding these conversations, and defendants claim
that Yang did not mention them in his deposition. But the deposition transcript reveals
that Yang did testify that he complained to management about faulty equipment. See [45-1]
at 68.
5

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of any outstanding mechanical issues, but that employee complaints about
equipment in need of repair were addressed as a matter of policy. [54] ¶ 33.
In July 2012, Yang engaged in a verbal altercation with a co-worker named
Michael Peplow. [48] ¶ 23. Yang parked his vehicle in front of the loading dock door
where Peplow was working, and when Peplow asked him to move, Yang engaged in
a verbal exchange with him. [48] ¶ 23. Peplow later complained to management,
accusing Yang of attempting to provoke him with aggressive behavior, and of using
a racial slur, which Yang denied. [48] ¶¶ 24–25. Maco investigated the complaint,
but could not corroborate Peplow’s allegation that Yang had used the racial slur, so
FedEx did not discipline Yang. [48] ¶ 25.
On March 7, 2014, Yang engaged in an altercation with dock worker Brian
Panek, which they both reported to management. [48] ¶¶ 26, 35. Panek accused
Yang of throwing at Panek’s chest and lap a McDonald’s bag containing a nearly
empty cup while Panek was operating a forklift, and that some ice spilled onto him.
[48] ¶ 26. Yang denies throwing the bag, but admits that he placed or shoved the
bag onto Panek’s lap, and also admits that he was wrong to do so. [48] ¶¶ 31–32.
Panek got off his forklift and confronted Yang. [48] ¶ 27. Yang reported that, during
their exchange, Panek called him a “fucking chink.” [48] ¶ 27. Panek denied this in
his discussions with management, claiming instead that he called Yang “an
asshole.” [48] ¶ 28. He also said that Yang had been verbally taunting him, using
other offensive terminology. [48] ¶ 29. Panek reported that Yang had always been

7

loud and rude to him, while Yang characterizes their relationship as one where they
frequently kid around with each other. [48] ¶ 30.
On March 10, 2014, Maco and defendant Kevin Lee, who had become
manager of the Schaumburg facility on September 16, 2013, reviewed surveillance
video of the incident and Panek’s and Yang’s written statements, and then met
separately with the two. [48] ¶¶ 19, 36. After the meetings, Lee sought from Panek
a more detailed written statement. [54] ¶ 31. He also spoke to two witnesses, who
implicated Yang as the instigator and aggressor and reported that they had not
heard Panek calling Yang a “fucking chink.” [48] ¶ 38. Lee and Maco then relieved
both Panek and Yang of duty pending the outcome of the investigation. [48] ¶ 37.
Yang claims that, although FedEx had not yet decided if and how Yang would be
disciplined, and nobody explicitly fired him or told him to leave, he understood from
Lee that he should seek employment elsewhere. [48] ¶¶ 61–63; [54] ¶ 28. The next
day, Yang called Lee and resigned. [48] ¶ 39. The offensive comment was never
confirmed, but once the investigation was complete, Lee and Maco officially
disciplined Panek by issuing him a “Critical Corrective Action” and a three-day
suspension. [48] ¶ 40.
Yang knew that fighting and “horseplay” among co-workers could result in
discharge. [48] ¶¶ 20–21. But he claims that he has seen non-Asian-American
employees of FedEx engage in horseplay without being disciplined by management.
[54] ¶ 35. Yang was also aware that FedEx has a non-discrimination policy and
procedures through which he could complain about discrimination, but testified that

8

he thought complaining might result in retaliation. [48] ¶ 22. Yang admits that no
manager at either facility made racist comments to him, and the only racist
comment Yang complained about was Panek’s March 7, 2014 comment. [48] ¶ 75.
III.

Analysis
Yang conflates two distinct claims in his response brief: one of disparate

treatment and one of hostile work environment. Both derive from the same set of
facts—Yang believes his employer discriminated against him based on his race—but
the legal analysis involved in each of these claims is different. Yang presents his
argument under the heading, “Hostile Work Environment,” and correctly identifies
the standard applicable to such a claim, but his supporting argument and case law
relate to a claim of disparate treatment.
A.

Hostile Work Environment

Summary judgment on the hostile work environment claim under § 1981 is
proper unless there is a “material issue of fact as to four elements: (1) the work
environment must have been both subjectively and objectively offensive; (2) race
must have been the cause of the harassment; (3) the conduct must have been severe
or pervasive; and (4) there must be a basis for employer liability.”6 Yancick v.
Hanna Steel Corp., 653 F.3d 532, 544 (7th Cir. 2011). Yang must show that the
conduct had “a racial character or purpose” and was “both subjectively and
objectively so severe or pervasive that it altered the conditions of his employment.”

The standards for claims of hostile work environment, racial discrimination, and
retaliation under Title VII and § 1981 are the same. Williams v. Waste Mgmt. of Illinois,
361 F.3d 1021, 1028 (7th Cir. 2004).
6

9

Id. Courts must “not focus on discrete acts of individual employees . . . , but must
consider the entire context of the workplace.” Id.
A court may consider several factors to determine whether a work
environment is objectively hostile, 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.” Ford v. Minteq Shapes & Services, Inc., 587 F.3d 845, 847 (7th
Cir. 2009) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
Yang believes he faced harassment and discriminatory conduct based on his
race, and that it amounted to a hostile or abusive work environment. In support of
his claim, he notes that at the Aurora branch, his managers did not admit him into
the dock-to-driver program, called him in to work up to two hours before he had any
work to do on at least ten occasions, and intentionally delayed the input of his
transfer to the Schaumburg branch. And Yang alleges that at the Schaumburg
branch, his managers gave him a disproportionately high number of lift-gate
assignments, provided him with faulty equipment, and forced him to resign after
his altercation with Panek.
Defendants argue that some of the acts Yang identifies as contributing to a
hostile work environment were separate and discrete acts for which he must bring
independent claims of racial discrimination. Specifically, defendants contend that
FedEx’s failure to promote Yang to a driver position and the delay in transferring
him to the Schaumburg branch can be considered only as the bases for separate

10

claims of disparate treatment. The nature of a hostile work environment claim
demands that a court consider a series of separate acts that collectively constitute
one “unlawful employment practice.” Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 117, (2002). But discrete acts such as failure to promote, denial of
transfer, and termination, if discriminatory, constitute separate and independently
actionable unlawful employment practices. See Morgan, 536 U.S. at 114. Those
discrete acts are different in nature from the repeated conduct underlying a hostile
work environment claim. See id. at 115. To the extent that any of the complained-of
conduct constitutes one employment practice that could sustain a hostile work
environment claim, it would not include the failure to promote Yang, the denial or
delay of transfer, or Yang’s separation from the company.
For the remaining conduct that Yang identifies in support of his hostile work
environment claim, he provides no evidence to suggest racial character or purpose.
Yang admits that none of his managers made any racist comments towards him,
and the only racist comment on the record is the one that may have been uttered by
his co-worker after Yang put a bag of trash on his lap. Even if that co-worker were a
racist, he did not have the decision-making authority to terminate Yang, and he had
nothing to do with the rest of Yang’s grievances, which do not have any independent
racial component. Yang complains that he sometimes had to wait for two hours
after his scheduled start time at the Aurora location before he could perform his job
duties, but cannot show that other employees did not experience the same
scheduling difficulties, or that race played a factor in this. He complains about

11

having to use faulty equipment at the Schaumburg facility, but cannot show that
his experience differed from that of non-Asian-American employees. Yang also
argues that the lift-gate assignments were administered in a discriminatory
fashion,7 although he does not provide any evidence to show that they were
assigned based on race rather than seniority and timing. Further, he admits that
Caucasian employees also worked those assignments on a regular or semi-regular
basis, and the record shows that other Caucasian and non-Asian-American
employees received lift-gate assignments frequently (and sometimes even more
frequently than Yang). Without any evidence that the complained-of conduct was
related to Yang’s race in either character or purpose, he cannot use it to sustain a
claim for hostile work environment.8
Defendants also argue that the conduct Yang complains about was neither
subjectively nor objectively so severe and pervasive that it altered the conditions of
his employment. Aside from his reporting of his co-worker Panek’s racist comment,
Yang never complained to management about discrimination, even though he was

Yang alternates between claiming discrimination against non-Caucasian employees or
against Asian-American employees in particular. With respect to lift-gate assignments, he
argues that his managers discriminated against both, but with more severity against
Asian-American employees. See [49] at 8.
7

Yang cannot even tie race to the discrete acts—failing to promote Yang, delaying the
processing of his transfer request, and relieving him of duty following his altercation with a
co-worker. The most damning evidence he points to is the unequal discipline issued to
himself and Panek. Yang says that he was relieved of duty indefinitely and might have
been told to move on, while Panek was given a three-day suspension. But that suspension
was given to Panek once the investigation had concluded. He was originally relieved of duty
pending the outcome of the investigation, just like Yang, and Yang resigned before any
formal discipline was issued. Yang claims that Lee had already decided to fire him, but that
does not suggest a racial motivation, given that the video evidence and witness statements
identified Yang as the aggressor.
8

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aware of the company’s non-discrimination policy. Defendants use this to suggest
that Yang did not subjectively perceive his work environment as hostile or offensive.
It is odd that he neglected to complain about discrimination even when he thought
his termination imminent, choosing instead to resign, but it may be that his lack of
complaining simply reflects a fear that filing a complaint could lead to his
termination.
Even if Yang subjectively believed his work environment to be hostile, he
cannot show that the complained-of conduct rises to the level of objective hostility.
He found lift-gate assignments objectionable, but unless there were evidence in the
record showing that those assignments were distributed in a discriminatory manner
(and there is not), “being assigned duties that were part of one’s job description”
does not amount to a hostile work environment. Hobbs v. City of Chicago, 573 F.3d
454, 464 (7th Cir. 2009). Likewise, the other conduct Yang identifies fails to satisfy
the requirements of a hostile work environment claim. He does describe
objectionable conduct—being forced to wait for two hours before the beginning of his
shift on roughly ten separate occasions over the course of fifteen months of parttime employment at the Aurora facility, assigned equipment in need of repair, and
subjected to a racial slur on one occasion—but “‘offhand comments, and isolated
incidents (unless extremely serious)’ are not sufficient to sustain a hostile work
environment claim.” Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 271 (7th Cir.
2004) (quoting Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir.1998)).
Even if the conduct supporting his claim included evasion and delay tactics by

13

Aurora branch manager Vande Hei regarding Yang’s requests for a promotion and
transfer, or a suggestion by Schaumburg branch manager Lee that Yang should
move on to other employment, the conduct would not amount to the “objectively
hellish environment” that would sustain his claim. Hendricks v. Illinois Dept. of
Human Services, 80 Fed.Appx. 489, 492 (7th Cir. 2003).
Therefore, summary judgment on Yang’s claim of hostile work environment is
granted in favor of defendants.
B.

Disparate Treatment

To avoid summary judgment on a disparate treatment claim under the direct
method of proof, as Yang seeks to do, a plaintiff must present “sufficient evidence,
either direct or circumstantial, that the employer’s discriminatory animus
motivated an adverse employment action.” Coleman v. Donahoe, 667 F.3d 835, 845
(7th Cir. 2012). The three categories of acceptable circumstantial evidence are: 1)
“suspicious timing, ambiguous statements oral or written, behavior toward or
comments directed at other employees in the protected group, and other bits and
pieces from which an inference of discriminatory intent might be drawn;” 2)
evidence of the employer systematically treating similarly situated employees of a
different race better; and 3) “evidence that the plaintiff suffered an adverse
employment action and that the employer’s justification is pretextual.” Silverman v.
Bd. of Educ. of City of Chicago, 637 F.3d 729, 733–34 (7th Cir. 2011). “Each type of
evidence is sufficient by itself (depending of course on its strength in relation to
whatever other evidence is in the case) to support a judgment for the plaintiff; or

14

they can be used together.” Troupe v. May Department Stores Co., 20 F.3d 734, 736
(7th Cir. 1994).
Again, it is unclear if Yang is pursuing a claim of disparate treatment,
because he identifies his claim as one for a hostile work environment and cites the
appropriate standard for that type of claim, but attempts to prove that claim by
invoking the direct method of proof for disparate treatment claims. As discussed
above, he also identifies as evidence in support of his hostile environment claim
three discrete acts which could conceivably constitute adverse employment actions
that are actionable in their own right as the bases of disparate treatment claims.
And he does argue that those actions—failing to promote him at the Aurora branch,
delaying his request to transfer to the Schaumburg location, and forcing him to
resign—were motivated by his employer’s discriminatory intent.
However, Yang does not respond to defendants’ argument that any § 1981
claims based on the lack of promotion or delay in Yang’s transfer request are timebarred, as they accrued more than four years before his complaint was filed, and
§ 1981 claims have a four-year statute of limitations. 28 U.S.C. § 1658(a). Because a
failure to respond to an argument constitutes waiver, summary judgment is granted
in defendants’ favor on those claims.
Even if those claims were not time-barred, they would fail as a matter of law
because Yang provides no evidence to suggest that his employer’s actions were
motivated by racially discriminatory intent or that they constituted adverse
employment actions. His failure to promote claim is based on Vande Hei’s failure to

15

encourage and affirmatively approve of Yang’s application to the dock-to-driver
program because of his race, but Yang does not provide any direct or circumstantial
evidence that race played a role. Further, he admits that he was unfamiliar with
the application process and never actually applied. There is also no indication that
race factored into the delay in processing his request to transfer to the Schaumburg
location. And he began work in Schaumburg as soon as that facility became
affiliated with his employer, so his request was ultimately honored. His only
evidence of discriminatory intent consists of his own subjective beliefs, but “[i]f the
subjective beliefs of plaintiffs in employment discrimination cases could, by
themselves, create genuine issues of material fact, then virtually all defense
motions for summary judgment in such cases would be doomed.” Yancick, 653 F.3d
at 544 (quoting Mlynczak v. Bodman, 442 F.3d 1050, 1058 (7th Cir.2006)).
A claim of disparate treatment based on Yang’s separation from the company
also fails. Yang argues he was forced to resign, because he had been relieved of duty
with no specific return date, and Lee suggested to him, in either form or substance,
that he move on. While Lee denies making such a suggestion, it would not amount
to forced resignation, or constructive discharge. “To state a claim for constructive
discharge, a plaintiff needs to show that his working conditions were so intolerable
that a reasonable person would have been compelled to resign.” Rabinovitz v. Pena,
89 F.3d 482, 489 (7th Cir. 1996). A “failure to object to egregious conditions or to
seek some form of redress is compelling evidence that the employee, or any
reasonable worker, would not find the conditions intolerable.” Mosher v. Dollar Tree

16

Stores, Inc., 240 F.3d 662, 667 (7th Cir. 2001). “Absent extraordinary conditions, ‘a
complaining employee is expected to remain on the job while seeking redress.’” Id.
(quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir.1997)). Yang
never complained to anyone at FedEx about any racially discriminatory behavior
(aside from Panek’s one comment) before resigning. And none of the working
conditions he describes are extraordinary or intolerable. Lee’s vague suggestion that
Yang consider moving on was not sufficient to compel a reasonable person to quit.
Yang was not constructively discharged; he called Lee the day after their
conversation and he resigned. Therefore, he did not suffer an adverse employment
action.
Yang has not presented facts upon which a reasonable jury could find that
anyone at FedEx took an adverse employment action against him because of his
race. Therefore, his claim fails as a matter of law.
C.

Retaliation9

To establish retaliation under the direct method, as Yang seeks to do, he
must show (1) that he engaged in protected activity; (2) that defendants took an
adverse employment action against him; and (3) a causal connection between his
protected activity and the adverse employment action. Coleman, 667 F.3d at 859. As
Defendants believe Yang abandoned his retaliation claim because, in his deposition, he
was asked whether he had a claim for retaliation and he answered “No.” [45-1] at 60.
Yang’s attorney objected to this question because it called for a legal conclusion. He was
also asked if he had ever complained about discrimination in the workplace, and after some
prompting by defendants’ counsel, Yang answered “No.” Id. Defendants rely on this
exchange to support their argument that Yang abandoned his claim, but they ignore Yang’s
earlier responses where he clearly discusses the complaint he filed against fellow co-worker
Panek after their argument. [45-1] at 21–22. Yang did not abandon his retaliation claim in
his deposition.
9

17

with a disparate treatment claim, Yang can make use of three categories of
circumstantial evidence to prove his claim.
Yang argues that the retaliation here took the form of management
influencing him to quit his job because he had complained about racial harassment
by Panek. Yang also contends that other non-Asian-American employees at the
Schaumburg location were not disciplined as harshly as he when engaging in the
same conduct (i.e., the “horseplay” that led to his suspension), suggesting that
defendant’s reasoning for its actions was pretextual.
Defendants argue that Yang voluntarily resigned, and deny that their actions
surrounding Yang’s suspension amounted to a constructive discharge. As stated
above, Yang cannot show that he was constructively discharged. If Yang is correct
in that Lee wanted to terminate him, and would have carried out that termination
if given the chance, Yang did not give him that chance. Thus, he fails to satisfy the
second prong of the test requiring an adverse employment action.
Even if Yang could prove that he was constructively discharged, or if he
identified the suspension as an adverse employment action, he does not identify any
evidence of a causal connection between his separation and his complaint of racial
harassment by Panek. As defendants note, the only evidence on the record that
could be used to support a causal connection is the timing of the two events. But
“evidence regarding suspicious timing, without more, is generally insufficient to
support a reasonable inference of retaliation.” Harper v. C.R. England, Inc., 687
F.3d 297, 309 (7th Cir. 2012). Yang does not provide sufficient evidence to suggest

18

that defendants’ reasoning for the suspension—that Yang was involved in an
argument with a co-worker—was pretextual.10 Aside from temporal proximity, Yang
does not provide any evidence, either direct or circumstantial, showing that any
adverse employment action resulting in his separation was caused by his complaint
of racial harassment.
No reasonable jury could conclude that Yang’s employment at FedEx was
terminated in retaliation for complaining about racial harassment. Therefore,
summary judgment on his retaliation claim is granted in favor of defendants.
IV.

Conclusion
Defendants’ motion for summary judgment, [44], is granted. Enter judgment

in favor of defendants, and terminate civil case.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: 6/23/16

Defendants correctly note that Yang’s vague and conclusory statement that non-AsianAmerican (but otherwise unidentified) employees engaged in similar conduct without being
disciplined is insufficient to defeat summary judgment. Yang provides no details as to what
type of conduct he observed or who he saw engaging in such conduct. Nor does he provide
any basis for his claim that these employees suffered no consequences. Without adequate
foundation, Yang’s statement is inadmissible.
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