Wilbourn, Eugene v. Kraft Foods Global, Inc.
ORDER granting 20 Motion for Summary Judgment by defendant Kraft Foods Group, Inc. Signed by District Judge James D. Peterson on 11/26/14. (rep)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
OPINION & ORDER
KRAFT FOODS GROUP, INC.,
Plaintiff Eugene Wilborn worked for defendant Kraft Foods Group, Inc. After Wilborn
was involved in a workplace accident, Kraft asked him to submit to a drug test, pursuant to its
substance abuse policy. Wilborn agreed, and, also pursuant to Kraft policy, he was suspended
pending the results. But the first test did not work—through no fault of Wilborn—and Kraft
asked him to submit to a second test. Wilborn objected to being retested, with the support of
his union, but ultimately Kraft fired him for failure to comply with Kraft’s substance abuse
Wilborn brought suit in this court under 42 U.S.C. § 1981, alleging that Kraft
discriminated against him on the basis of his race and retaliated against him for opposing the
second drug test. Kraft has moved for summary judgment on both claims. Dkt. 20. Wilborn has
failed to state a prima facie case of discrimination or to show that Kraft’s reasons for testing and
terminating him were pretextual. Wilborn has also failed to present evidence that his opposition
to Kraft’s testing caused his termination. Kraft is therefore entitled to summary judgment on
both of Wilborn’s claims.
The court finds that the following facts are material and, except where noted,
undisputed. Unless otherwise indicated, the events in question occurred in 2011.
Kraft operates a facility in Madison, Wisconsin, where it produces Oscar Mayer food
products. Wilborn began working at Kraft’s Madison facility in 2000. He started as a laborer
and went on to hold several different positions during his time with the company. In 2011, he
worked in the sanitation department, during the overnight shift, and his duties included
cleaning three machines and the areas around them.
While employed with Kraft, Wilborn was a member of the United Food & Commercial
Workers, Local 538 (the union), which has a collective bargaining agreement with Kraft. The
agreement contains a Substance Abuse Policy that provides for drug testing of union members
under certain circumstances. Testing for drugs, controlled substances, and alcohol is required
after any accident involving vehicles or powered equipment and any accident causing more than
$500 of damage to Kraft’s property or injury to another employee. Kraft has discretion to select
the appropriate method of testing (i.e., urine, blood, saliva, hair follicle, etc.). The policy also
states that refusal to submit to a required test will result in disciplinary action, up to and
including termination, even for a first offense. Although the policy does not explicitly identify
the circumstances under which Kraft can suspend an employee pending the results of a test, it
does state that “[i]n the event an employee is suspended pending results of a drug/alcohol test,
and the results are negative, the employee will receive pay for time off provided the incident
which triggered the test does not warrant disciplinary time off.” Dkt. 36, at 5.
On January 12, 2011, Wilborn was involved in a workplace accident. He had finished
cleaning his assigned machine and decided to help a co-worker who was scrubbing a nearby
floor. Wilborn used a battery-powered pallet jack to move a container of unused scrap meat and
clear a section of the floor for cleaning. But the pallet jack slid on the already soapy floor and
collided with one of the nearby machines. The co-worker had left a door on the machine open,
and when the pallet jack hit the machine, it knocked the door off one of its hinges. Wilborn
finished cleaning up and then went to let his supervisor know about the accident. After two
supervisors inspected the damage, they informed Wilborn that he would need to go to the
personnel department to discuss the incident.
The same day, Wilborn met with Tim Emond, an Associate Human Resources Manager.
Several others were present at the meeting, including Trent Schwenn, the Chief Union Steward.
After Wilborn explained what had happened, Emond told him that it would cost approximately
$5,000 to replace the door and that Wilborn would have to submit to a drug test. During the
meeting, Schwenn disputed that a $5,000 replacement was necessary, but by that time, Emond
had input from a maintenance supervisor and a mechanic, both of whom opined that the
damage could not be repaired. Despite Schwenn’s disagreement with Emond, Wilborn was
willing to take a drug test and agreed to do so after the meeting. Schwenn and two of Wilborn’s
supervisors accompanied him to a nurse’s station after finishing the meeting. Wilborn signed an
authorization for the drug test, acknowledging that he was involved in a collision that caused
approximately $5,905.96 in damage. Wilborn gave both a hair and a urine sample. Because he
shaves his head, Wilborn had to give hair samples from his armpits and his beard.
After the test, Wilborn cleaned out his locker and was escorted off Kraft’s property. The
company did not permit Wilborn to return to work pending the results of the test, citing
Wilborn’s disciplinary history and Kraft’s concern that he might act aggressively toward or
attempt to intimidate the supervisors and co-workers who inspected the damaged machine. 1
Since 2000, Wilborn had had seven different disciplinary actions, many for aggressive conduct,
and some resulting in termination followed by reinstatement. These incidents include entering
Wilborn attempts to dispute this fact by arguing that “it is a legal question whether Kraft
suspended Wilborn because of his prior disciplinary history or his race.” Dkt. 28, at 12. But the
question of what reasons Kraft gave for suspending him is a factual one, and Wilborn has not
identified evidence in the record to contradict that these are the reasons Kraft offered.
other departments within Kraft’s facility to get into confrontations with other employees,
leaving before the end of his shift without a supervisor’s permission, workplace harassment,
insubordination, and verbal altercations with supervisors.
On January 17, before Kraft had received the results of the first drug test, Wilborn filed a
grievance with the Human Resources Department. He claimed that Kraft lacked cause to test
him for drugs because the door to the machine he damaged was still being worked on and Kraft
therefore lacked proof of how much damage Wilborn actually caused. Wilborn further claimed
that Kraft was acting inconsistently with its substance abuse policy in suspending him pending
the results of the drug test. Wilborn’s grievance did not, however, allege that Kraft’s actions
were motivated by his race or were otherwise discriminatory. Two months later, Kraft denied
the grievance on the grounds that Wilborn had been involved in a vehicle accident and had
caused more than $500 in damage to company property. Kraft also explained that Wilborn had
been suspended pending the results “because of prior work history.” Dkt. 23-3, at 2.
Wilborn’s test results came back from Kraft’s third-party testing company, Verifications,
Inc., on January 18. Verifications cancelled the urine test because the specimen did not contain
the name and signature of the person who collected it, and the testing company rejected the hair
follicle test because Wilborn had submitted an insufficient quantity of hair on which to perform
testing. Verifications recommended that Kraft acquire a new hair sample, and Kraft’s human
resources department decided to ask Wilborn for a second hair follicle test.
The next 24 hours saw a flurry of discussion about the retest, most of it between
Wilborn, Emond, Schwenn, and Joe Jerzewski, the union’s president. Susan Frueh, the human
resources manager in Kraft’s Madison office, was also involved in most of the correspondence.
First, Schwenn and Jerzewski met with Emond. The union representatives renewed their
argument that they did not believe the damaged door had needed to be replaced. When Emond
explained that Wilborn would need to be retested because of the rejected hair follicle test, the
union representatives immediately said that they would challenge the retest. They left the office
before Emond could inform them that if Wilborn refused, he would be fired. Next, Jerzewski
went to Frueh’s office and had a similar conversation. Frueh informed him that Wilborn would
be fired if he refused, and she explained that the human resources department was not willing to
alter its position. Finally, Jerzewski and Emond both called Wilborn, separately, and informed
him that he would need to retake the drug test.
Wilborn was in Indiana when he and Emond spoke over the phone on January 19.
Emond agreed to locate a testing location in Indiana, and told Wilborn that he had two weeks
to complete the retest. Wilborn was willing to retest, but doubted that he could grow sufficient
hair in two weeks. 2 Emond informed Wilborn that he would be terminated if he failed to
complete the retest within two weeks.
Wilborn returned home to Wisconsin a few days after talking to Emond. Wilborn met
with his union representative to discuss alternative testing methods because he could not grow
hair on his head fast enough to complete the retest. It is unclear how earnestly Wilborn tried to
grow hair though; apparently he shaved his head a few times between January 19 and March 15.
Dkt. 22 (Wilborn Dep. 95:11-96:6). Shortly after Wilborn’s meeting with his union
representative, legal counsel for the union got involved—the same attorneys who now represent
Wilborn in this case. In a January 21 letter to Kraft, counsel opined that “any further attempts
to request additional drug testing constitutes harassment and unequal treatment under both the
The parties dispute whether, during the call, Emond told Wilborn that he had to grow hair on
his head to submit for the retest; Wilborn states that he did, Dkt. 22 (Wilborn Dep. 79:1182:16), Emond states that he did not, Dkt. 24, ¶ 46. This dispute is immaterial because even
accepting Wilborn’s version of the events, in which he was required to submit head hair for the
retest, the outcome of Kraft’s motion is the same.
Collective Bargaining Agreement . . . and federal law (42 U.S.C. § 2000).” Dkt. 23-7, at 2.
Wilborn reviewed this letter with his union representative before the attorneys sent it to Kraft.
Wilborn’s two weeks came and went, and he did not retest. Frueh extended the deadline,
giving Wilborn until February 7 to complete his second test. She again warned that if Wilborn
failed to comply, Kraft would terminate his employment. A union representative forwarded
Frueh’s correspondence to Wilborn. But Wilborn did not submit to a retest, and so Kraft fired
him on March 14. In its termination letter, Kraft explained that Wilborn was being terminated
for refusing to submit to a drug test when requested to do so.
By April, the grievance Wilborn filed to protest his initial test and suspension had
advanced through the collective bargaining agreement’s dispute resolution process. Wilborn and
his union representative met with Frueh and other Kraft management personnel to discuss
whether to reinstate Wilborn. To prepare for the meeting, Frueh sought out information about
alternative drug testing methods from Verifications. Specifically, Frueh asked about what types
of tests, if any, could provide similar results and how far back these tests could detect the
presence of drugs and alcohol. Verifications responded that Kraft’s contract only provided for
breath, urine, and hair testing, and that adding other methods would require time and
administrative approval. Verifications further explained that hair testing was the best method
because saliva and blood would become diluted after time and because urine would only capture
drugs used in the three days prior to testing. Kraft decided against adding any new types of tests
to its testing procedures. Despite Wilborn’s willingness to submit to different testing methods,
Kraft continued to insist on a hair follicle test.
After the grievance meeting, Kraft prepared a response memo. The memo confirmed that
was involved in a powered industrial vehicle accident which resulted in
property damage. In accordance with Kraft’s Substance Abuse Policy,
[Wilborn] provided a hair sample for a drug screen, but the sample was
not sufficient. [Wilborn] was requested to provide a 2nd sample, and
was given almost 2 months to grow enough hair for this test. [Wilborn]
refused to provide this sample.
Dkt. 23-11, at 2. Kraft concluded by stating that if Wilborn agreed to provide a hair sample, he
could return to work under a “Condition of Employment.” 3 A week after receiving Kraft’s
response and the offer of reinstatement, Wilborn’s union representative rejected the offer. More
discussion followed, and the company eventually renewed its offer of reinstatement and gave
Wilborn another month in which to retake his drug test. Neither Wilborn nor the union ever
responded to the extended deadline.
Communication broke down and the next documented correspondence was not until
August, when the union’s Secretary-Treasurer asked Frueh about the status of Wilborn’s
grievance. Frueh answered that Kraft had never heard back on its most recent offer. After some
discussion, Kraft once again extended Wilborn’s deadline, offering to reinstate him under a
Condition of Employment if he completed a drug test and the results were negative. Wilborn
rejected the renewed offer. At his deposition, Wilborn testified that he had no objection to
submitting to another drug test. Dkt. 22 (Wilborn Dep. 130:20-132:16). Instead, he rejected
the offer because he did not want to return to work under a Condition of Employment. Under
such a condition, he could be fired for any violation of Kraft’s rules and regulations, including
coming in late to work.
Jerzewski contacted Kraft about its most recent offer of reinstatement, and asked
whether the union could arbitrate for Wilborn to receive back pay if he accepted the offer.
Kraft uses such Condition of Employment agreements as “last chance” agreements between
Kraft, the union, and the terminated employee. The written agreements identify the terms by
which an employee will be reinstated and explain that any violation will result in discharge.
Jerzewski also explained that Wilborn would not agree to a Condition of Employment that
permitted Kraft to terminate him for any violation of company rules. Frueh answered that Kraft
would not agree to arbitrate for back pay but would consider offering some limited back pay.
Frueh refused to change the language of the Condition of Employment. The conversation led
Kraft to send Wilborn one last offer of reinstatement under a Condition of Employment.
Wilborn discussed the offer with his union representatives, and he rejected it.
A few months later, Wilborn had a change of heart. Toward the end of 2011 or the
beginning of 2012, he contacted the union and expressed a willingness to return to Kraft, even if
it meant accepting a Condition of Employment. When the union contacted Kraft, however, the
company explained that it was no longer interested in reinstating Wilborn.
Unable to resolve his dispute informally or administratively, Wilborn filed a complaint in
this court under 42 U.S.C. § 1981. His second amended complaint, Dkt. 15, alleges that Kraft
discriminated against him by not permitting him to work pending the results of the initial drug
test and by terminating him for refusing to retake the drug test. The complaint further alleges
that Kraft retaliated against Wilborn for the letter his attorneys sent to Kraft regarding the
second test. The court has subject matter jurisdiction under 28 U.S.C. § 1331 because his claim
arises under federal law.
Kraft has moved for summary judgment on both Wilborn’s discrimination claim and his
retaliation claim. As to the discrimination claim, Kraft contends that Wilborn cannot prove his
claim under the indirect method because he cannot make out a prima facie case or show pretext.
And he cannot prove his discrimination claim under the direct method because he lacks
circumstantial evidence of discriminatory intent. As to the retaliation claim, Kraft contends that
it fails as a matter of law because Wilborn lacks evidence of a causal connection between his
protected conduct and a retaliatory employment action. Wilborn counters that there are
genuine disputes of fact sufficient to survive summary judgment. Wilborn fails to adduce
admissible evidence sufficient to raise a genuine dispute of material fact, and Kraft is entitled to
summary judgment on both of Wilborn’s claims.
Summary judgment is appropriate if the moving party, here Kraft, “shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court construes all facts and makes all
reasonable inferences in Wilborn’s favor, but as the non-moving party who will ultimately bear
the burden of persuasion, he must “go beyond the pleadings and affirmatively demonstrate a
genuine issue of material fact for trial.” Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 931 (7th
Cir. 1996). Wilborn cannot avoid summary judgment on his claims if he “fails to demonstrate
that the record, taken as a whole, could permit a rational finder of fact to rule in [his] favor.” Id.
A. The Schwenn declaration
The court begins with a fundamental evidentiary issue. Wilborn’s opposition to Kraft’s
motion for summary judgment relies heavily on the declaration of Trent Schwenn, Wilborn’s
union steward. Wilborn cites Schwenn’s declaration to support more than half of his proposed
findings of fact, Dkt. 29, and Wilborn relies nearly exclusively on the declaration to dispute
Kraft’s proposed facts. Dkt. 28. Unfortunately for Wilborn, in critical respects—mostly
concerning the preferential treatment accorded to white employees—Schwenn’s declaration
lacks foundation and is merely conclusory. Wilborn cannot successfully oppose summary
judgment without adducing admissible evidence that sets forth specific facts showing that there
is a genuine issue for trial. Schwenn’s declaration does not provide the evidentiary support
The first problem is foundation. Under Rule 602 of the Federal Rules of Evidence and
Rule 56(c)(4) of the Federal Rules of Civil Procedure, Schwenn may provide evidence only
about matters of which he has first-hand, personal knowledge. Schwenn states that he has
served as the union’s chief steward for the Madison plant since 2009, and that, in this capacity,
he has been involved in all grievances and disputes arising under the labor agreement since
2009. Dkt. 31, ¶ 2. But Schwenn does not explain the nature of his involvement with these
grievances. He may have been involved in a way that did not give him direct, personal
knowledge of the facts. He also attests to facts going back to 2005, but he provides no basis for
his knowledge prior to 2009, when he became chief steward. Schwenn’s declaration establishes a
foundation for his testimony about Wilborn’s grievances because Schwenn was directly involved
and he describes how he was involved. But Schwenn’s declaration does not establish a
foundation for his testimony about Kraft’s policies or actions before 2005. Thus, for example, he
lacks foundation to testify that “Kraft has never before asked a white employee covered by the
labor agreement to be retested for hair.” Id. ¶ 15. More important, the declaration does not
establish Schwenn’s personal knowledge of the treatment of unnamed white employees of which
Schwenn claims to be somehow aware.
This leads to the second problem with Schwenn’s declaration: he makes conclusory
assertions about the preferential treatment of white employees without providing specific facts.
These are the two critical statements concerning the preferential treatment of white employees:
I am aware of white employees who were drug tested and
permitted to continue to work while awaiting the test results
who had histories of discipline for similar types of incidents.
I am aware of white employees covered by the labor
agreement who have had accidents causing more than $500 in
property damage who were not drug tested.
Id. To prove his discrimination case under the indirect method, Wilborn must adduce evidence
of comparators—other employees who are not members of a protected class, but are otherwise
comparable—who did not receive the adverse treatment Wilborn did. These paragraphs from
Schwenn’s declaration are, in essence, a bare recital of the element that Wilborn must prove,
without factual elaboration.
Schwenn does not identify the white employees, nor does he provide the facts underlying
any of the incidents to which he alludes. In the absence of factual elaboration, Wilborn has not
shown that there is a genuine dispute of fact requiring trial. For example, Schwenn does not
assert that any white employee had as many disciplinary infractions as Wilborn, only that some
had histories of discipline for similar types of incidents. The court cannot, on the basis of this
presentation, conclude that the unnamed white employees are appropriate comparators.
The lack of factual elaboration is also grossly unfair to Kraft, who cannot effectively
respond to such vague allegations concerning unnamed white employees. Wilborn proposes a
fact in which he names five employees, citing to paragraph 16 of Schwenn’s declaration. Dkt.
29, ¶ 10. But the identification of these employees is utterly without evidentiary support
because Schwenn’s declaration does not mention them. The court will not accept proposed facts
without evidentiary support. But even if the court accepted Wilborn’s unsupported
identification of the five employees, Kraft has responded with evidence showing that these five
employees did in fact submit to drug testing. Dkt. 33, ¶ 10 and Dkt. 35. Wilborn cannot evade
Kraft’s documented refutation of his evidence with a vague declaration that does not provide
any specific details or cite any documentary evidence.
A declaration in opposition to a motion for summary judgment must set forth specific
facts, not mere conclusions. Thomas v. Christ Hosp. & Med. Ctr., 328 F.3d 890, 894 (7th Cir.
2003). The point of the evidentiary requirements in Rule 56 is to require the non-moving party
to go beyond the conclusory allegations of the complaint, not simply recast those conclusory
allegations in the form of a declaration. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990).
The court recognizes that there is a spectrum of factual specificity, from complete factual detail
on one end, to the bare quotation of the legal elements of the claim on the other. Schwenn’s
declaration provides less factual elaboration than those held to be conclusory in Thomas.
Schwenn’s declaration clearly falls on the conclusory end of the spectrum because it simply
takes the adverse actions that befell Wilborn and asserts that unnamed white employees in the
same circumstances did not suffer the same fate. Without factual elaboration, Schwenn’s
statements about the white comparators are nothing more than mere conclusions, inadequate to
create a genuine dispute of fact. As shown below, the lack of evidentiary support will be fatal to
B. Wilborn’s race discrimination claim
Wilborn brings his race discrimination claim under § 1981, and “although section 1981
and Title VII differ in the types of discrimination they proscribe, the methods of proof and
elements of the case are essentially identical.” McGowan v. Deere & Co., 581 F.3d 575, 579 (7th
Cir. 2009). “An employee alleging racial discrimination under Title VII or § 1981 may proceed
via the direct or the indirect method of proof.” Harris v. Warrick Cnty. Sheriff’s Dep’t, 666 F.3d
444, 447 (7th Cir. 2012). Under the “direct method,” Wilborn can “avoid summary judgment
by presenting sufficient evidence, either direct or circumstantial, that [Kraft’s] discriminatory
animus motivated an adverse employment action.” Coleman v. Donahoe, 667 F.3d 835, 845 (7th
Cir. 2012). Under the “indirect method,” Wilborn must follow the Supreme Court’s familiar
burden-shifting framework: (1) Wilborn must state a prima facie case of discrimination; if he
does, then (2) Kraft must proffer a legitimate, non-discriminatory reason for its decision; if it
does, then (3) Wilborn must identify evidence showing that Kraft’s stated reason is a pretext for
discrimination. Id. Wilborn contends that he can pursue his race discrimination claim under
both the indirect and direct methods.
1. The indirect method
Wilborn cannot proceed under the indirect method because he fails to make out a prima
facie case of race discrimination. To establish a prima facie case, Wilborn must “provide
evidence that (1) he is a member of a protected class; (2) he was meeting his employer’s
legitimate performance expectations; (3) he suffered an adverse employment action; and
(4) other similarly-situated . . . employees were treated more favorably.” Huang v. Cont’l Cas. Co.,
754 F.3d 447, 450 (7th Cir. 2014). Wilborn’s failure to establish any single element, even if he
can prove the rest, is enough to support summary judgment in Kraft’s favor. Traylor v. Brown,
295 F.3d 783, 790 (7th Cir. 2002). Kraft concedes that Wilborn satisfies the first element
because he is an African-American. Dkt. 25, at 3 n.2. But the company contends that Wilborn
has failed to identify evidence of the remaining elements.
In this case, Kraft made four distinct decisions that make up what Wilborn now claims
to be discriminatory treatment: (1) requiring Wilborn to undergo a drug test after the January
12 accident; (2) suspending Wilborn pending the results of the initial drug test; (3) requiring
Wilborn to undergo a second drug test after the first test’s results were cancelled; and
(4) terminating Wilborn for refusing to take the second drug test. See generally Dkt. 15, ¶¶ 24-29
and Dkt. 27, at 7-10. Kraft contends that with the exception of Wilborn’s suspension and his
termination, none of the events constituted adverse employment actions. Kraft further asserts
that Wilborn cannot use these events to make out a prima facie case because he was not
meeting Kraft’s legitimate expectations when any of them occurred. Finally, Kraft observes that
Wilborn has not identified similarly situated employees who received more favorable treatment.
a. Adverse employment actions
Of the four events upon which Wilborn bases his discrimination claim, only three qualify
as adverse employment actions: suspension, retest, and termination. In the Seventh Circuit, “an
adverse action must materially alter the terms or conditions of employment to be actionable
under the antidiscrimination provision of Title VII. . . . This means that the action must be
more disruptive than a mere inconvenience or an alteration of job responsibilities.” Porter v. City
of Chi., 700 F.3d 944, 954 (7th Cir. 2012) (internal citations and quotation marks omitted). As
relevant in this case, a drug test does not rise to the level of an adverse employment action
unless the “test is not performed in a routine fashion following the regular and legitimate
practices of the employer, but is conducted in a manner that harasses or humiliates employees.”
Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1001-02 (7th Cir. 2000). Because Wilborn has
failed to demonstrate that the initial drug test fits within this definition, he cannot use the event
to build his prima facie case.
Wilborn does not dispute that the collective bargaining agreement that was in effect
while he was employed contained a substance abuse policy, or that the policy permitted Kraft to
test any employee who was involved in an accident with a powered piece of equipment or who
caused more than $500 of damage to Kraft’s property. Wilborn’s accident qualified under both
provisions, and Kraft’s decision to require a drug test was a straightforward application of its
policy. See id. at 1002 (“[A] reasonable and legitimate request made pursuant to [a] published
Drug Policy does not constitute the type of adverse employment action that Title VII is
designed to prevent.”). Wilborn has not indicated that he felt harassed or humiliated by the first
test. Indeed, during his deposition, Wilborn testified that he “was okay with taking [the initial
test],” and that it was his union representative who objected on the basis that Kraft had not
suffered more than $500 in damage. Dkt. 22 (Wilborn Dep. 55:3-10). 4 Wilborn cannot sustain
his burden of demonstrating that the initial drug test was an adverse employment action.
Of the three remaining employment actions, Kraft concedes that Wilborn’s termination
qualifies as an adverse employment action and admits that the unpaid suspension pending the
results of the first test “could [also] be considered an adverse employment action.” Dkt. 25, at 6
n.2. Kraft contends, however, that requiring Wilborn to retest did not amount to an adverse
employment action. The argument has traction and Wilborn does not counter it. See Johnson v.
Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (“The definition of an adverse
employment action is generous, but it is still subject to certain limitations. . . . At the very least,
[a plaintiff] must show some quantitative or qualitative change in the terms or conditions of his
employment that is more than a mere subjective preference.”). But demanding additional tests
and extending an employee’s suspension could conceivably rise to the level of an adverse action.
Thus, because the burden to present a prima facie case is not onerous and because Wilborn
Wilborn’s only additional argument on this point is that the initial drug test qualifies as an
adverse employment action because at least five white employees had accidents involving more
than $500 in damage, but were not tested. Dkt. 27, at 7. To support his contention, however,
Wilborn relies exclusively on Schwenn’s affidavit, which is too conclusory to support the
assertion. See Keys v. Foamex, L.P., 264 F. App’x 507, 511 (7th Cir. 2008) (rejecting “the
conclusory assertion that because the test was (allegedly) governed by a discriminatory motive it
was necessarily harassing and humiliating”).
receives the benefit of the doubt at this stage of the case, the court will permit him to proceed
with three adverse employment actions upon which to base his prima facie: (1) his suspension
pending the results of the first test; (2) the requirement that he retest; and (3) his termination.
b. Legitimate expectations
According to Kraft, Wilborn could not possibly have been meeting its legitimate
expectations when he lost control of the pallet and caused damage to Kraft’s property, nor could
Wilborn have been meeting its legitimate expectations when he refused to retest despite Kraft’s
insistence that he do so. The company therefore contends that Wilborn cannot satisfy the
second element of his prima facie case. Kraft cites decisions from other district courts in this
circuit for the proposition that employees who cause preventable workplace accidents are, by
definition, not meeting their employers’ legitimate expectations. Dkt. 25, at 4 (citing Tolbert v.
Con-Way Transp. Servs., Inc., No. 04-cv-0082, 2005 WL 1476298, at *5 (S.D. Ind. June 15,
2005); Sims v. Fort Wayne Cmty. Sch. (FWCS), No. 03-cv-430, 2005 WL 3801461, at *18 (N.D.
Ind. Feb. 2, 2005)). The argument would have merit, except for the fact that Kraft did not
suspend or fire Wilborn for getting into an accident; the company suspended him because of his
disciplinary history and fired him for refusing to take a second drug test after his initial test was
cancelled. Dkt. 23-9, at 2.
Wilborn correctly observes that he did exactly what Kraft asked him to with regard to
the first drug test (and the associated suspension). He reported the accident, met with the
human resources department, and submitted to a drug test. With regard to his refusal to retest,
Wilborn argues that Kraft’s reasons for requiring the second drug screen were a pretext for
discrimination and, therefore, that his refusal to retest does not prevent him from establishing a
prima facie case of discrimination. See Brummett v. Lee Enters., Inc., 284 F.3d 742, 745 (7th Cir.
2002) (“[A]n individual who meets the other criteria for a prima facie case and also
demonstrates that the employer’s legitimate expectations were themselves pretextual can survive
the first prong of McDonnell Douglas.”). For the purposes of evaluating Wilborn’s prima facie
case, the court will assume that Wilborn can make this showing. But this is a dubious
assumption because, as discussed below, Wilborn fails to identify evidence of pretext in any of
c. Similarly situated employees
Benefitting from an appropriately generous view of the evidence, Wilborn has
demonstrated that he is a member of a protected class who suffered three adverse employment
actions while meeting his employer’s legitimate expectations. For the fourth and final element of
Wilborn’s prima facie case, he must show that Kraft treated similarly situated employees outside
of his protected class more favorably. Wilborn cannot make such a showing and therefore fails
to state a prima facie case of race discrimination.
The court uses “a flexible, commonsense inquiry” when evaluating potential comparators
under the fourth element of the McDonnell Douglass framework. Barricks v. Eli Lilly & Co., 481
F.3d 556, 560 (7th Cir. 2007). The goal of the inquiry “is to determine whether there are
enough common factors between a plaintiff and a comparator—and few enough confounding
ones—to allow for a meaningful comparison in order to divine whether discrimination was at
play.” Id. It is Wilborn’s burden to identify similarly situated employees. Grayson v. O’Neill, 308
F.3d 808, 819 (7th Cir. 2002) (“To meet his burden of demonstrating that another employee is
‘similarly situated,’ a plaintiff must demonstrate that there is someone who is directly
comparable to him in all material respects.”) (emphasis added). But he has not identified any
comparators, let alone individuals who would allow for a meaningful comparison. Instead, he
has merely alluded to viable comparators.
Wilborn relies on Schwenn’s declaration to support his assertion that white employees
with similar disciplinary histories were not suspended pending the results of their first drug
tests. The declaration does not identify a single comparator, see Dkt. 31, and the court has
already declined to accept the declaration on this point because “uncorroborated generalities are
insufficient to support a Title VII claim.” Oest v. Ill. Dep’t of Corr., 240 F.3d 605, 615 (7th Cir.
2001). Schwenn’s conclusory assertion that there are similarly situated employees, and
Wilborn’s equally conclusory regurgitation of the assertion is insufficient evidence at this point
in the case. See Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010) (“[M]ere
conclusory allegations do not constitute evidence.”); Bragg v. Navistar Int’l Transp. Corp., 164
F.3d 373, 377 (7th Cir. 1998) (a plaintiff’s conclusory allegations about similarly situated
individuals were insufficient to avoid summary judgment). Wilborn has failed to identify
evidence of similarly situated employees who received better treatment than he did, and so
cannot make a prima facie showing of discrimination.
Wilborn’s inability to make out a prima facie case of discrimination entitles Kraft to
summary judgment. Yet, even if Wilborn had cleared that hurdle, he still would not be able to
proceed under the indirect method. Kraft has articulated legitimate, non-discriminatory reasons
for each action it took leading up to, and including, Wilborn’s termination. Specifically, Kraft
explains that it followed its substance abuse policy in requiring Wilborn to submit to a drug test
and insisting that he successfully complete a retest when the initial test was cancelled. Kraft also
explains that it suspended him because of concerns that he might act aggressively toward the
supervisors and co-workers who were involved in investigating the January 12 accident. Finally,
Kraft asserts that, consistent with its substance abuse policy, it terminated Wilborn for refusing
to take a drug test. In response, Wilborn has failed to identify evidence from which a reasonable
jury could conclude that Kraft’s reasons are merely a pretext for discrimination.
In the context of employment discrimination claims, “[p]retext means a dishonest
explanation, a lie rather than an oddity or an error.” Hague v. Thompson Distrib. Co., 436 F.3d
816, 823 (7th Cir. 2006). It is not enough for Wilborn to show that Kraft’s reasons for the
disciplinary actions it took against him were “mistaken, ill considered or foolish, and so long as
the employer honestly believes those reasons, pretext has not been shown.” Ballance v. City of
Springfield, 424 F.3d 614, 617 (7th Cir. 2005) (internal citations omitted). Instead, Wilborn
must identify evidence that Kraft’s reasons: “(1) had no basis in fact; (2) did not actually
motivate the adverse employment action; or (3) [were] insufficient to motivate the adverse
employment action.” Davis v. Wis. Dep’t of Corr., 445 F.3d 971, 977 (7th Cir. 2006) (internal
citations omitted). Wilborn has failed to identify any evidence of pretext in Kraft’s decision
making in this case.
There is no record evidence of pretext in Kraft’s decision to suspend Wilborn pending
the results of the initial test. In responding to Wilborn’s grievance, Kraft stated that he was
suspended “because of prior work history.” Dkt. 23-3, at 2. During her deposition, Frueh
explained her concern that Wilborn would have intimidated other Kraft employees investigating
the accident or that he would have acted aggressively toward supervisors and maintenance
technicians already involved. Dkt. 32 (Frueh Dep. 29:13-33:21). Wilborn cannot establish
pretext in this rationale because he cannot point to any evidence that Frueh did not honestly
believe her reasons for suspending him. He asserts that since 2005, Kraft has allowed all
employees to continue working while they await their test results, and that similarly situated
white employees who were drug tested after accidents were allowed to continue working. Dkt.
27, at 9-10. As before, Wilborn relies exclusively on Schwenn’s affidavit to support these
statements. The declaration lacks foundation insofar as it purports to cover any time before
2009, and it is simply conclusory with regard to the unnamed white employees. Wilborn does
not dispute that Kraft has accurately recited his disciplinary history, which includes incidents of
aggression and confrontation with supervisors and co-workers. Wilborn entirely lacks admissible
evidence to dispute the documentation and deposition testimony Kraft has adduced. Wilborn
has not raised a genuine dispute of fact as to whether Kraft honestly believed the reasons it gave
for suspending him.
Wilborn next contends that Kraft’s reasons for requiring a second test, and for ultimately
firing him when he refused to comply, are pretextual because they have no basis in fact. Wilborn
offers two observations to support his position. First, he correctly asserts that the substance
abuse policy does not discuss retesting. See Dkt. 23-1. But the absence of any express
authorization for retesting certainly does not automatically mean that Frueh had no basis from
which to conclude that she could order a second test. Whether Frueh reached the correct
interpretation of an ambiguous policy is not an appropriate inquiry at this stage because this
court does “not sit as a super-personnel department with authority to review an employer’s
business decision.” Ballance, 424 F.3d at 621. Beyond Wilborn’s claim that he was the first
employee to be retested—another unsupported assertion from Schwenn’s declaration—he does
not identify evidence disputing that Frueh honestly believed in her authority to ask for a retest.
Wilborn’s real challenge to Frueh’s decision is that it amounted to “an order to do what
she knew or should have known was humanly impossible.” Dkt. 27, at 8. Wilborn asserts that
Emond gave him two weeks in which to grow sufficient hair for a retest. According to Wilborn,
however, it would have taken him at least three months to grow sufficient hair for a retest.
Because Kraft only gave him two weeks, Wilborn contends that the retest was a pretext for
discrimination. There are several problems with this argument. The only evidentiary support for
it faces authenticity issues and problems with foundation. It is a “Frequently Asked Questions”
(FAQ) document that Wilborn’s attorney pulled from the internet. Dkt. 30-1. The FAQ was
created by Quest Diagnostics, a drug testing company. But Kraft never used the company for its
drug testing, let alone for Wilborn’s test, and so the document provides no admissible evidence
of what Kraft “knew or should have known.”
Setting aside these evidentiary concerns, the document is not evidence of pretext. During
her deposition, Frueh summarized the training she received on hair follicle testing and explained
how she applied what she knew to Wilborn’s case. Specifically, she explained that: she is not an
expert in the field; Kraft typically collects hair samples the length of the tip of a person’s pinkie
finger; she believes every person’s hair grows at different rates; and based on her experience, two
weeks was adequate time for a bald person to grow enough hair for a drug test. Dkt. 32 (Frueh
Dep. 10:10-12:7; 60:21-62:3). At most, the FAQ challenges whether Frueh’s understanding of
hair follicle testing is scientifically accurate. But the document is not evidence that Frueh lacked
a basis in fact for giving Wilborn two weeks to grow sufficient hair. Quite the opposite; when
confronted with the FAQ, Frueh maintained that she acted according to her training and
experience in directing Wilborn to submit to a second test.
Wilborn also relies on the FAQ document’s statement that hair testing can detect drug
use from the last 90 days as evidence that Kraft’s continued insistence on a hair follicle test,
even beyond 90 days after the January 12 accident, was a pretext for discrimination. The
argument might be persuasive except that Frueh testified that, in her experience and according
to her training, hair follicle tests could go back as far as six months. Id. (Frueh Dep. 10:22-
11:21). 5 Again, the FAQ document is evidence that Frueh might have been wrong; not evidence
that she did not honestly believe her position.
Absent evidence of pretext in any of Kraft’s decisions, Wilborn cannot proceed under the
indirect method, regardless of whether he could make out a prima facie case of discrimination.
Kraft is entitled to summary judgment.
2. The direct method
Wilborn’s brief in opposition to summary judgment lays out the legal test for proving
discrimination under both the direct and indirect methods, and asserts that he can proceed
under either. Dkt. 27, at 5-7. Plaintiffs pursuing the direct theory of discrimination must
identify “direct or circumstantial evidence that creates a ‘convincing mosaic of discrimination’
on the basis of race.” Winsley v. Cook Cnty., 563 F.3d 598, 604 (7th Cir. 2009) (quoting Troupe
v. May Dep’t Stores Co., 20 F.3d 734, 737 (7th Cir. 1994)). Wilborn concedes that he has no
direct evidence of discrimination, Dkt. 27, at 5, so the court must analyze whether there is
circumstantial evidence of intentional discrimination. There is not.
Evidence that proves a claim under the direct method typically includes:
(1) suspicious timing, ambiguous oral or written statements, or
behavior toward, or comments directed at, other employees in the
protected group; (2) evidence, whether or not rigorously statistical,
that similarly situated employees outside the protected class
received systematically better treatment; or (3) evidence that the
employer offered a pretextual reason for an adverse employment
Wilborn asserts that Kraft’s insistence on a drug test in each of its post-termination offers of
reinstatement is also evidence of pretext. Wilborn’s second amended complaint alleges that
Kraft discriminated against him by: (1) not allowing him to work pending the initial test results;
and (2) terminating him for refusing to retake the hair follicle test. Dkt. 15, ¶ 28. To proceed
under the indirect method, he must therefore identify evidence of pretext in those decisions, not in
decisions subsequent to the termination.
Tank v. T-Mobile USA, Inc., 758 F.3d 800, 805 (7th Cir. 2014). Wilborn need not offer proof
from all three categories as “[e]ach type of evidence is sufficient by itself (depending of course
on its strength in relation to whatever other evidence is in the case).” Coleman, 667 F.3d at 860.
But in this case, the evidence does not amount to a mosaic of discrimination for largely the same
reasons that the same evidence does not enable Wilborn to make out a prima facie case of
discrimination or to show pretext in Kraft’s decisions.
Wilborn does not suggest that there is anything suspicious about the timing of this case.
He does not direct the court to any statements, comments, or behavior by Kraft employees that
would suggest racial animus. His evidence of comparators was too conclusory to establish a
prima facie case, and it is just as inadequate in the context of the direct method. Wilborn
adduces no evidence, statistical or otherwise, of systematically better treatment for employees
outside his own protected class. Thus, any argument Wilborn has to support a convincing
mosaic would essentially be one recycled from his failed efforts to show pretext under the
The court has already considered and rejected Wilborn’s arguments concerning pretext
because he simply cannot show that Kraft did not honestly believe the reasons it gave for its
actions. But Wilborn identifies one additional piece of evidence. At the January 12 meeting,
shortly after Wilborn’s accident, Kraft focused on the $500-in-damage provision of the
substance abuse policy. Two months later, in answering Wilborn’s grievance, Kraft cited both the
$500 provision and the powered vehicle provision as grounds for requiring the first test.
Wilborn asserts that Kraft departed from its practices in “dramatic fashion” by subsequently
justifying its request for the first test under the powered vehicle provision of the substance abuse
policy. Dkt. 27, at 10. Once again, he relies on conclusory statements in Schwenn’s declaration
that this was the first time Kraft had ever defended a test under this section of the substance
The lack of specific evidence is fatal to Wilborn’s case under the direct method, just as it
was under the indirect method. See Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir.
2003) (“The main problem with [the plaintiff’s] ‘mosaic’ is that there is no solid evidence in the
record to support her allegations, as required by Fed. R. Civ. P. 56(e).”). Moreover, even if
Wilborn is correct that Kraft supplemented its rationale for requiring the initial test, this is not
evidence of pretext. Wilborn cannot genuinely dispute that, given the information Emond had
available on January 12, Kraft had legitimate grounds for the initial test under the $500
provision. Wilborn does not explain how Kraft’s later addition of another legitimate ground—
there is no dispute that the accident involved powered equipment—suggests racial animus in
The sum total of Wilborn’s evidence under the direct method is a set of conclusory
assertions and Kraft’s belated, additional justification for requiring his first drug test. Wilborn
falls well short of “constructing a ‘convincing mosaic’ of circumstantial evidence that allows a
jury to infer intentional discrimination by the decisionmaker.” Cerutti v. BASF Corp., 349 F.3d
1055, 1061 (7th Cir. 2003) (internal citations and quotation marks omitted); see also Hobgood v.
Ill. Gaming Bd., 731 F.3d 635, 644 (7th Cir. 2013) (collecting authority). No single piece of
evidence suggests racial animus on Kraft’s part, nor could the cumulative weight of Wilborn’s
evidence, scant as it is, enable a jury to find in his favor. He therefore cannot proceed under the
direct method of proof and Kraft is entitled to summary judgment on Wilborn’s claim of race
C. Wilborn’s retaliation claim
In addition to his discrimination claim, Wilborn alleges that Kraft retaliated against him
for filing a grievance opposing the drug testing procedures and alleging unequal treatment under
the collective bargaining agreement. A retaliation plaintiff can prove his claim using the direct or
the indirect method, Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012), but Wilborn is
proceeding only under the former. Dkt. 27, at 10. To prove his retaliation claim with the direct
method, Wilborn “must present evidence of (1) a statutorily protected activity; (2) a materially
adverse action taken by the employer; and (3) a causal connection between the two.” Turner v.
The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010) (internal citations and quotation marks
omitted). Kraft acknowledges that Wilborn satisfies the first two elements; the January 21,
2011, letter from the union’s attorneys constituted a protected activity, and Kraft’s termination
was an adverse employment action. 6 Dkt. 25, at 15. But the company contends that it is
nevertheless entitled to summary judgment because Wilborn has no evidence of a causal
connection between the two.
As evidence of causation, Wilborn primarily relies on the suspicious timing of his
termination, which occurred seven weeks after his union’s attorneys wrote a letter to Kraft
opposing what they perceived to be discriminatory practices. Dkt. 27, at 11-12. “A claim of
retaliation based on suspicious timing depends on what the relevant decision-makers knew and
when,” Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 676 (7th Cir. 2011), and
In his second amended complaint, Wilborn also alleged that “Kraft’s continued rejection of the
Union’s proposals to administer alternative forms of drug testing constitute[s] retaliation for
Wilborn’s oppositional activities.” Dkt. 15, ¶ 32. In moving for summary judgment, Kraft
argued that its insistence on a hair follicle test could not constitute an adverse employment
action. Dkt. 25, at 15. Wilborn failed to respond to this point in opposing Kraft’s motion. See
Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond to an
argument . . . results in waiver.”). Even had he replied, Wilborn could not proceed with his
retaliation claim because he has not presented evidence of a causal connection.
obviously “the order of events is even more important than the time between them; the theory
doesn’t work if the retaliatory act precedes the protected activity.” Leonard v. E. Ill. Univ., 606
F.3d 428, 432 (7th Cir. 2010) (original emphasis). In other words, Wilborn cannot succeed on
his retaliation claim if the decision to terminate him occurred before he opposed Kraft’s
unlawful practices. And that is exactly what Kraft asserts occurred in this case: on January 19,
the company decided and informed Wilborn that he would be terminated if he did not complete
a retest within two weeks; two days later, on January 21, the union’s attorneys sent a letter to
Kraft asserting that pursing a second test would violate federal law.
Confronted with this chronology, Wilborn responds that Kraft (through Frueh) did not
actually decide to terminate him until shortly before March 14, when Kraft sent Wilborn a
termination letter. To support his position, Wilborn relies on the fact that Kraft repeatedly
extended the deadline by which Wilborn needed to complete the second test and portions of
Frueh’s deposition that suggest the final decision to terminate him was not made until closer to
March 14. On January 19, Kraft gave Wilborn two weeks to complete his retest and indicated
that he would be fired if he did not do so. When the two-week period expired, Kraft wrote a
memo to Wilborn’s union, extending the deadline for another three days and again warning that
he would be fired for refusing to comply. Even after the second deadline expired, Kraft did not
formally terminate Wilborn’s employment until over a month later. At her deposition, Frueh
testified that Kraft did not decide to terminate Wilborn for failing to retest until on or near
March 14. Dkt. 32 (Frueh Dep. 55:10-15).
Kraft contends that Wilborn has selectively quoted from Frueh’s deposition. The
company directs the court to other portions where Frueh clarified that, since January 19, the
company had decided that Wilborn would be fired if he failed to retest, and March 14 was
simply the date on which it concluded that Wilborn had not completed a retest. Id. (Frueh Dep.
56:19-57:3). Kraft thus distinguishes the decision to terminate Wilborn if he did not retest from
the conclusion that Wilborn had not retested and would therefore be terminated. The company
argues that only the former qualifies as a materially adverse employment action for purposes of
Wilborn’s retaliation claim. Assuming that March 14 was the date of the critical “decision” in
this case, Wilborn does not dispute that Kraft articulated its reasons for terminating him before
he ever opposed any unlawful practices, or that the company has consistently reasserted those
reasons, and only those reasons. Wilborn also does not dispute that the substance abuse policy
permitted Kraft to terminate employees who failed to comply with requests for drug testing.
Thus, the evidence of suspicious timing in this case ultimately amounts to Kraft announcing its
intent to terminate Wilborn—an action it was entitled to take—and then following through on
that threat despite Wilborn complaining about race discrimination a few months earlier.
Even drawing reasonable inferences in his favor, Wilborn has not identified evidence of
suspicious timing. Kraft’s stated reason for terminating Wilborn was that he chose not to submit
to a retest, and Kraft began asserting that reason before Wilborn ever engaged in protected
conduct. Moreover, the Seventh Circuit has held that “suspicious timing alone is almost always
insufficient to survive summary judgment.” Leitgen, 630 F.3d at 675. Wilborn nevertheless
asserts that the interval between opposition and termination establishes a causal link because his
discharge took place “on the heels” of his protected activity. Dkt. 27, at 12. He directs the court
to two cases, Tomanovich v. City of Indianapolis, 457 F.3d 656, 665 (7th Cir. 2006), and Lang v.
Illinois Department of Children & Family Services, 361 F.3d 416, 419 (7th Cir. 2004), which
respectively conclude that four months is too long a delay to infer causation, but that a onemonth delay is “extremely suspicious.” Wilborn urges the court to place his seven-week window
closer to Lang’s side of this spectrum and conclude that Kraft’s timing in this case is likewise
As an initial matter, the Seventh Circuit has already concluded that “[t]he approximate
seven-week interval between [a plaintiff’s] complaint and her subsequent arrest/termination does
not represent that rare case where suspicious timing, without more, will carry the day.”
Argyropoulos v. City of Alton, 539 F.3d 724, 734 (7th Cir. 2008). More importantly, Wilborn
overlooks language in Lang explaining that “[c]lose temporal proximity provides evidence of
causation . . . and may permit a plaintiff to survive summary judgment provided that there is also
other evidence that supports the inference of a causal link.” 361 F.3d at 419 (emphasis added) (internal
citations omitted). Wilborn’s emphasis on timing notwithstanding, it is his lack of “other
evidence” that ultimately dooms his retaliation claim.
Wilborn again recycles many of the pretext and convincing mosaic arguments he made in
the context of his discrimination claim, and asserts that the same evidence of similarly situated
employees, patent falsity in Frueh’s determination that he could grow adequate hair within two
weeks, and added justification for the first drug test, all support his retaliation claim. Yet, for the
same reasons that the evidence was insufficient to save Wilborn’s discrimination claim from
summary judgment, it is not enough to enable a reasonable jury to conclude that Kraft
terminated him because of the January 21 letter in which Wilborn opposed the initial drug test.
Without evidence of causation, Wilborn’s retaliation claim must fail as a matter of law. Kraft is
entitled to summary judgment.
IT IS ORDERED that:
1. Defendant Kraft Foods Group, Inc.’s motion for summary judgment, Dkt. 20, is
2. The clerk of court is directed to enter judgment in favor of defendant and close this
Entered this 26th day of November, 2014.
BY THE COURT:
JAMES D. PETERSON
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