HINTON v. SYSCO INDIANAPOLIS, LLC

Filing 75

ENTRY ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT: Accordingly, for the reasons set forth above, Sysco's motion for partial summary judgment (Dkt. No. 57) is GRANTED with regard to Hinton's race discrimination claims u nder both Title VII and § 1981. Hinton's claims of retaliation in violation of both Title VII and § 1981 remain at issue in this case. This cause is set for trial beginning on June 6, 2016. The final pretrial conference is schedu led for May 6, 2016. The parties are reminded of the required pretrial obligations as set forth in paragraph VIII of the case management plan (Dkt. No. 25) ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 4/11/2016. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PHILLIP HINTON,

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Plaintiff,
vs.
SYSCO INDIANAPOLIS, LLC,
Defendant.

CAUSE NO. 1:14-cv-1266-WTL-MJD

ENTRY ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
This cause is before the Court on Sysco Indianapolis, LLC’s (“Sysco”) motion for partial
summary judgment (Dkt. No. 57). Sysco moves for summary judgment on Plaintiff Phillip
Hinton’s race discrimination claims brought pursuant to Title VII and § 1981. This motion is
fully briefed, and the Court, being duly advised, GRANTS the motion for the reasons, and to the
extent, set forth below.
I.

STANDARD

Federal Rule of Civil Procedure 56(a) provides that 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.” In ruling on a motion for summary judgment, the
admissible evidence presented by the nonmoving party must be believed and all reasonable
inferences must be drawn in the nonmovant’s favor. Hemsworth v. Quotesmith.com, Inc., 476
F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (“We view
the record in the light most favorable to the nonmoving party and draw all reasonable inferences
in that party’s favor.”). However, “[a] party who bears the burden of proof on a particular issue
may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations,

that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490.
Finally, the nonmoving party bears the burden of specifically identifying the relevant evidence of
record, and “the court is not required to scour the record in search of evidence to defeat a motion
for summary judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).
II.

BACKGROUND

The following facts are recited in Sysco’s Statement of Material Facts Not in Dispute,
supported by citation to evidence in the record, and undisputed by Hinton. 1 Material facts
disputed by Hinton are construed in the manner most favorable to him as the nonmoving party. 2
From 2008 until July 1, 2013, Hinton worked in Sysco’s warehouse as an order selector
on the night shift. Andre Robinson became Sysco’s director of human resources in 2008 as well,
overseeing all aspects of its personnel functions. Both Hinton and Robinson are African
American. Danny Mertes became director of warehousing in February 2013 and was responsible
for all functions related to Sysco’s warehouse. In that position, Mertes reported to Darrell
Pierce, Sysco’s vice president of operations.
Throughout Hinton’s employment with Sysco, he and other order selectors were
members of and were represented by Teamsters Local No. 135 (the “Union”), and their terms
and conditions of employment were governed by a collective bargaining agreement (“CBA”).
From approximately 2011 until his termination in 2013, Hinton served as a Union steward.
There were two CBAs in effect during Hinton’s employment, one from January 19, 2008,

1

Sysco raises several evidentiary issues, asking that the Court not consider certain
exhibits presented by Hinton but provided to him by Sysco through its responses to discovery.
Because the inclusion of these exhibits does not alter the Court’s decision in this matter, the
Court need not address Sysco’s concerns.
2 The parties include in their statements of fact several facts that relate to Hinton’s
retaliation claims. Those facts are not included here as Hinton’s retaliation claims are not at
issue in Sysco’s summary judgment motion.
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through March 2, 2013, and another from March 3, 2013, through March 3, 2018. See Dkt. Nos.
58-6, 58-7. 3 Both CBAs included Uniform Rules and Regulations, setting out prohibited
conduct and corresponding penalties, which applied to all employees represented by the Union.
The Uniform Rules and Regulations in the CBAs made certain conduct “subject to discharge,”
meaning that Sysco had the discretion to terminate an employee for such conduct without first
going through any progressive discipline. Section 3(c) of the Union Rules and Regulations
provided that an employee would be “subject to discharge” for “theft, dishonesty of any kind, or
unauthorized possession of [Sysco] property.” Each CBA also incorporated disciplinary
procedures with respect to order selectors’ productivity and accuracy. If an employee covered
by the CBA received progressive discipline for violating one of the Uniform Rules &
Regulations or the CBA’s productivity and accuracy standards, that discipline would count
against the employee for only nine months.
On June 25, 2013, upon reporting to work, Hinton learned that Justin Thurman, another
order selector, was absent from work for the third consecutive day without contacting
management to report his absence. Hinton also learned that Thurman was absent because he was
incarcerated. When Hinton learned those things, he knew that under the Uniform Rules and
Regulations, because Hinton did not show up for work or call in to explain his absence for three
consecutive work days, he would be considered to have voluntarily quit, and his employment
would be terminated.
On June 25, 2013, at approximately 6:01 p.m., Hinton used his cell phone to call Sysco’s
attendance hotline and left a message in which he said he was Thurman and that he would be

3

The Court brings to Sysco’s attention that pages 35 through 52 of Docket 58-7 are not part of
the CBA and do not appear to pertain to this case, should it like to correct the record.
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absent from work that night because he was sick. In leaving that message, Hinton knew that he
was making two false statements: that he was Thurman; and that Thurman was absent because he
was sick. Later that evening, Hinton went to the warehouse office to speak with management
about a production issue. Hinton overheard Josh Cosby and Brian Dixon, both supervisors,
laughing. Dkt. No. 58-5 at 33. Cosby and Dixon were listening to the attendance hotline
recording of Hinton’s call. Id. Dixon guessed about the caller’s identity. Id. Dixon said it
sounded like Hinton. Id. at 34. Hinton informed them that he was the caller. Id. Later that
evening, Hinton asked his manager, Jason Walls, to erase the message he had left, because
Hinton was afraid it would cause problems for him. Walls would not do so. That night, Hinton
also asked Cosby to erase the message, but Cosby also refused.
Walls called Robinson that night to tell him about the incident. During his investigation
of Hinton’s conduct, Robinson spoke separately with Walls, Dixon, and Cosby, and learned
about the message Hinton had left and his effort to get it erased. After talking with Walls,
Dixon, and Cosby about what had happened and listening to the message that Hinton admitted to
leaving, Robinson concluded that Hinton had committed an act of dishonesty in his dealings with
Sysco. Robinson consulted with Pierce, Mertes, and Walls about his investigation and findings.
Pierce, Mertes, and Robinson decided that Sysco should terminate Hinton’s employment for
violating Section 3(c) of the Union Rules and Regulations. Sysco’s President, Steve Neely, had
the ability to veto that decision but did not do so. On July 1, 2013, Sysco terminated Hinton’s
employment for dishonesty in violation of Section 3(c) of the Union Rules and Regulations.
In the nine months prior to June 27, 2013, the date on which Robinson prepared the
termination notice for Hinton, Sysco had issued Hinton nine performance and productivity
warnings, including one for miszoning pallets; another for attempting to cause a work stoppage

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by telling other night shift order selectors to come to work late to vote in the election, even
though polls closed at the same time the night shift started; one for contributing to unsanitary or
poor housekeeping conditions in violation of the CBA; and warnings for lack of productivity.
On the date of his termination, Hinton and the Union asked Sysco to reinstate Hinton and
reduce his discharge to a five-day suspension. On July 9, 2013, Hinton and the Union filed a
grievance claiming that Sysco discharged Hinton without just cause in violation of the CBA and
asking that Sysco reinstate him. Pierce, Mertes, and Robinson rejected Hinton’s request for
reinstatement and denied his grievance. The Union took Hinton’s grievance to arbitration,
resulting in an evidentiary hearing before an arbitrator. On June 14, 2014, the arbitrator issued a
decision finding that Sysco had terminated Hinton for dishonesty and that his discharge was for
just cause.
Hinton filed three charges of discrimination with the Equal Employment Opportunity
Commission. See Compl. ¶ 2. He received right-to-sue letters on all charges on May 3, 2014.
Id. Hinton timely filed this lawsuit on July 29, 2014.
III.

DISCUSSION

To survive a motion for summary judgment on race discrimination claims under Title VII
and § 1981, a plaintiff must point to evidence that satisfies either the direct or indirect method of
proof. 4 See Egonmwan v. Cook Cty. Sheriff’s Dep’t, 602 F.3d 845, 850 n.7 (7th Cir. 2010) (“The
same requirements for proving [race] discrimination apply to claims under Title VII, § 1981, and
§ 1983.”).5 Hinton acknowledges that both methods are available to him, but he presents facts

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In reviewing grants of summary judgment, the Seventh Circuit still uses this approach
despite its recent questions regarding “the continued utility of analyzing discrimination claims
through the ‘direct’ and ‘indirect’ methods of proof.” Simpson v. Beaver Dam Cmty. Hosps.,
Inc., 780 F.3d 784, 789-90 (7th Cir. 2015).
5 Because the methods of proving discrimination are the same under Title VII and §
1981, the Court analyzes both claims together.
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and arguments only in the context of supporting a prima facie case of race discrimination. He
thus pursues his claim under the indirect method only. See Puffer v. Allstate Ins. Co., 675 F.3d
709, 718 (7th Cir. 2012) (undeveloped, conclusory, or unsupported arguments not considered);
Weber v. Univ. Research. Assoc., Inc., 621 F.3d 589, 592-93 (7th Cir. 2010) (plaintiff who did
not attempt to present any direct evidence of discrimination or retaliation failed to sufficiently
raise the direct method of proof at district court to preserve the issue for appeal). Accordingly,
the Court examines Hinton’s claim under the indirect method of proof.
To avoid summary judgment under the indirect method, Hinton must establish “that he
(1) belongs to a protected class, (2) met his employer’s legitimate performance expectations, (3)
suffered an adverse employment action, and (4) was treated worse than similarly situated
employees outside the protected class.” Bates v. City of Chicago, 726 F.3d 951, 955 (7th Cir.
2013) (quoting Rodgers v. White, 657 F.3d 511, 517 (7th Cir. 2011)). If a plaintiff establishes
his prima facie case, the burden shifts to the employer to present a legitimate, non-discriminatory
reason for the adverse employment action. Bates, 726 F.3d at 955. On such a showing, the
burden then shifts back to the plaintiff to show that the employer’s proffered reason is a pretext
for discrimination. Id. “The ultimate question . . . , and that which is relevant here, is ‘whether a
reasonable jury could find prohibited discrimination.’” Hooper v. Proctor Health Care Inc., 804
F.3d 846, 853 (7th Cir. 2015) (quoting Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 840
(7th Cir. 2014)).
It is undisputed that Hinton is a member of a protected class and that his termination is an
adverse employment action. 6 He has thus satisfied the first and third elements of his prima facie

6

While Sysco addresses in its briefs other incidents that it believes Hinton claims were
adverse actions, the Court reads Hinton’s brief in response as asserting no adverse action other
than his termination. See, e.g., Dkt. No. 60 at 20 (Hinton argues that he “has presented sufficient
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case. Sysco argues, however, that Hinton cannot satisfy the other elements. Sysco denies that
Hinton met its legitimate performance expectations and also argues that Hinton has not identified
a similarly situated employee outside the protected class who was treated more favorably.
A.

Legitimate Expectations and Similarly Situated Employees

Sysco argues that it “terminated Hinton’s employment for dishonesty, pursuant to Section
3(c) of the [CBA] rules.” Dkt. No. 58 ¶ 45. Hinton does not dispute that he engaged in the
conduct Sysco considered dishonest. See Dkt. No. 60 ¶ 36. Rather, he argues that other
employees outside his protected class engaged in similar misconduct and were treated more
favorably. See id. at 21. Specifically, in response to Sysco’s motion, Hinton asserts that Jorge
Parra, Justin Thurman, and he engaged in similar misconduct, were subjected to the same
performance standards, and their discipline decisions involved at least one of the same
decisionmakers, but Parra and Thurman were not terminated. Id. at 21-24.
The legitimate expectation and similarly situated elements of the prima facie case “merge
in cases of discriminatory discipline; the inquiry is whether a[n] [employee not in the protected
class] engaged in similar misconduct yet received lighter punishment.” Baker v. Macon
Resources, Inc., 750 F.3d 674, 676 (7th Cir. 2014) (applied in age discrimination context) (citing
Rodgers, 657 F.3d at 517 (applying merged test in race discrimination context); Luster v. Ill.
Dep’t of Corr., 652 F.3d 726, 730 (7th Cir. 2011) (same)). “[W]hen uneven discipline is the
basis for a claim of discrimination, the most-relevant similarities are those between the

facts to prove a prima facie case of race discrimination regarding his termination”).
Accordingly, for purposes of this Entry, the Court considers Hinton’s termination as the only
adverse employment action alleged by Hinton.
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employees’ alleged misconduct, performance standards, and disciplining supervisor.” 7 Rodgers,
657 F.3d at 518.
“[I]n deciding whether two employees have engaged in similar misconduct, the critical
question is whether they have engaged in conduct of comparable seriousness. Comparable
seriousness may be shown by pointing to a violation of the same company rule or to conduct of
similar nature.” Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681,
689 (7th Cir. 2007) (internal citations omitted). Employees are not considered similarly situated
where, even if they engaged in similar misconduct, “‘differentiating or mitigating circumstances
[] would distinguish their conduct or the employer’s treatment of them.’” Antonetti v. Abbott
Labs., 563 F.3d 587, 592 (7th Cir. 2009) (quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612,
617-18 (7th Cir. 2000)). Thus, the Court must determine whether Parra or Thurman is similarly
situated to Hinton.
1.

Jorge Parra

Parra is not similarly situated to Hinton because differentiating circumstances distinguish
Sysco’s treatment of Parra. Parra, an order selector who is Hispanic, began working for Sysco in
2000. In November 2009, Parra told Robinson that he had been working for Sysco under a false
name because, until recently, he had not been authorized to work in the United States. Until
Parra came forward, neither Sysco nor the Union knew that he had been working under a false
name. Parra gave his citizenship documentation to Robinson, apologized, and asked for another

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Viewing the facts in the light most favorable to Hinton, the Court considers Robinson,
Pierce, and Mertes decisionmakers with respect to Hinton’s termination. For purposes of this
Entry, the Court simplifies its analysis, assuming that the same decisionmaker disciplined Parra,
Thurman, and Hinton. With respect to Parra and Hinton, however, the only common
decisionmaker was Robinson, and only two of Hinton’s decisionmakers, Robinson and Mertes,
were involved in Thurman’s discipline.
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chance. Parra did not ask Sysco to cover up what he had done or to erase the false information in
his employment application. At the time he told Robinson, Parra was Sysco’s top order selector,
selecting more cases error-free than any of his co-workers, such that management considered
him an exemplary employee. Dkt. No. 58 ¶ 62. Parra had been honored for having an excellent
record of selecting items without error. Id. At the time Parra came forward to Robinson, he had
not been disciplined during the previous nine months. Because Parra had come forward on his
own to admit his conduct and provide accurate documentation, and because he was a highly
productive and accurate worker who had not been disciplined in the previous nine months,
Robinson and Charles Guinn, then-vice president of operations, suspended Parra for five days
instead of terminating him.
Parra’s misconduct – engaging in dishonesty – was the same conduct for which Hinton
was terminated. Parra, however, received a five-day suspension rather than termination. By
applying lesser discipline, Sysco acknowledged that Parra, at the time, was its top order selector,
an exemplary employee, and had been honored across the company for having such an excellent
record of selecting items without error. Sysco also attributes the difference in severity in
discipline to the fact that Parra had not been disciplined in the nine months prior to his
suspension. Dkt. No. 58 at ¶ 16. Furthermore, it is undisputed that “[i]f an employee covered by
the CBA received [] discipline for violating one of the Rules . . . that discipline would count
against the employee for only nine months.” Dkt. No. 58 ¶ 16 (citing Dkt. Nos. 58-6 at 32; 58-7
at 31 (“Each offense against an employee’s record that is 9 months old shall be canceled.”); see
also Dkt. No. 60 ¶ 8.
Although Hinton disputes that Parra’s “disciplinary record was clean,” he does not
dispute that Parra had not been disciplined in the nine months preceding his suspension; nor does

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he point to any evidence in the record that would show otherwise. 8 Dkt. No. 60 ¶ 114 (citing
Dkt. No. 58 ¶ 63). Because Parra did not receive discipline in the nine months preceding his
suspension, prior discipline could not be considered in determining the disciplinary measures to
be taken against him for his dishonesty. Hinton, on the other hand, received nine performance
and productivity warnings in the nine months prior to his termination, distinguishing him from
Parra. Dkt. No. 58 ¶ 48. Hinton, therefore, was not similarly situated to Parra.
Hinton includes additional facts not in dispute related to Parra receiving a termination
notice on February 13, 2013, for leaving work without permission during work hours and
abusing the attendance policy. See Dkt. No. 60 ¶ 72. Parra was either never terminated or was
terminated and reinstated. Id. at ¶ 76. Although Hinton described Parra’s act as one of
dishonesty (see Dkt. No. 60 at 23), Sysco did not characterize it as such. Rather, in the
performance warning notice, Sysco found Parra to have violated Section 3(j) of the Uniform
Rules and Regulations: “Failure to obtain proper authorization to leave premises during work
hours.” Dkt. No. 61-10 at 3 (quoting Dkt. No. 58-6 at 30). On this occasion, Parra did not
violate the same rule as Hinton, and the act, therefore, is not of comparable seriousness to an act
of dishonesty. Cf. Peirick, 510 F.3d at 691 (finding coaches similarly situated who “did not
engage in the exact same misconduct as alleged of Peirick,[but] [] violated the very same rules”).
As the Seventh Circuit has repeatedly stated, “[a] federal court does not sit as a ‘superpersonnel department,’ second-guessing an employer’s legitimate concerns about an employee’s

8

Hinton relies on Exhibits 130-144 to Robinson’s deposition (Dkt. No. 61-10 at 2-16) to
support his contention that Parra did not have a clean disciplinary record. See Dkt. No. 60 ¶¶
114-15. These disciplinary records do not show that Parra received discipline in the nine months
preceding his suspension. See Dkt. No. 61-10 at 2-16. As noted, according to the terms of the
CBA, “[e]ach offense against an employee’s record that is 9 months old shall be canceled,”
which means such discipline no longer exists at the end of nine months. Dkt. Nos. 58-6 at 32;
58-7 at 31.
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performance.” Mintz v. Caterpillar Inc., 788 F.3d 673, 680 (7th Cir. 2015) (citations omitted);
Kohls v. Beverly Enterprises Wisconsin, Inc., 259 F.3d 799, 806 (7th Cir. 2001) (quoting Dale v.
Chicago Tribune. Co., 797 F.3d 458, 464 (7th Cir. 1986)). The Court does not second-guess
Sysco’s classification of Parra’s conduct as an attendance issue rather than an act of dishonesty.
Even if Parra’s act were considered an act of dishonesty, differentiating or mitigating
circumstances distinguish Sysco’s reason for either not terminating or reinstating Parra: Unlike
Hinton, Parra again did not have any disciplinary warnings in the nine months prior to receiving
the February 13, 2013, discipline. See Dkt. No. 61-10 at 2-16. For a second time, Parra is not
similarly situated to Hinton.
2.

Justin Thurman

Thurman is also not similarly situated to Hinton. Unlike Parra and Hinton, Thurman
never engaged in an act of dishonesty or similar misconduct that violated Section 3(c) of the
Uniform Rules and Regulations. Instead, he had three active disciplinary warnings for
attendance issues, which peaked in late June 2013 when he received a fourth disciplinary action
for missing three consecutive days of work without notification to Sysco. Sysco deemed
Thurman’s late June 2013 absences a voluntary termination. Although, like Hinton, Thurman
had active disciplinary warnings, they were for attendance issues only, and unlike Hinton, he had
four rather than nine active warnings. Sysco decided to reinstate Thurman because of his “recent
work history and the fact that [Sysco] knew Thurman was in jail” during his absences. Dkt. No.
60 at ¶ 104.
Hinton argues that his misconduct and Thurman’s were of comparable seriousness
because they were both terminable offenses. See Dkt. No. 60 at 23. The Uniform Rules and
Regulations in effect at the time describe the consequence for being absent for three successive

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work days without notification as a “voluntary quit.” See Dkt. No. 58-7 at 30. This is not the
same as the consequence for an act of dishonesty, “subject to discharge,” see id. at 27, which
meant that Sysco had the discretion to terminate an employee for such conduct without first
applying progressive discipline, Dkt. No. 58 ¶ 14. This difference distinguishes Thurman’s
inaction, not a terminable offense, from Hinton’s act. Furthermore, Thurman’s being unable to
call in to work to report absences because of incarceration is not of comparable seriousness to
Hinton’s, albeit possibly well-intentioned, misrepresentation of his identity in a call to the
attendance hotline and subsequent attempt to have the recording of the call erased. Thus,
Thurman did not engage in misconduct similar to Hinton. Accordingly, Thurman is not similarly
situated to Hinton.
IV.

CONCLUSION

Because Hinton has not identified a similarly situated employee who was treated more
favorably, he has failed to establish a prima facie case of race discrimination under either Title
VII or § 1981, and Sysco is entitled to summary judgment on those claims. Accordingly, for the
reasons set forth above, Sysco’s motion for partial summary judgment (Dkt. No. 57) is
GRANTED with regard to Hinton’s race discrimination claims under both Title VII and § 1981.
Hinton’s claims of retaliation in violation of both Title VII and § 1981 remain at issue in this
case. This cause is set for trial beginning on June 6, 2016. The final pretrial conference is
scheduled for May 6, 2016. The parties are reminded of the required pretrial obligations as set
forth in paragraph VIII of the case management plan (Dkt. No. 25).

SO ORDERED: 4/11/16

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

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