Morgan v. SVT, LLC

• Decision Date: 01 August 2013
• Docket Number: No. 12–3589.,12–3589.
• Citation: 724 F.3d 990
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: Marcus MORGAN, Plaintiff–Appellant, v. SVT, LLC and Strack & Van Til Super Market, Inc., Defendants–Appellees.

724 F.3d 990

Marcus MORGAN, Plaintiff–Appellant,

v.SVT, LLC and Strack & Van Til Super Market, Inc., Defendants–Appellees.

No. 12–3589.

United States Court of Appeals,Seventh Circuit.

Argued April 10, 2013.

Decided Aug. 1, 2013.

David L. Lee, Attorney, Chicago, IL, for Plaintiff–Appellant.

Adam John Sedia, Attorney, Rubino, Ruman, Crosmer, Smith, Sersic & Polen, Dyer, IN, for Defendants–Appellees.

Before POSNER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge.

Marcus Morgan, who is African–American, claims that he was fired from his security job at a grocery store operated by defendants SVT, LLC and Strack & Van Til Super Market, Inc. (collectively, SVT) because he dared to report the misconduct of one of the store's white managers. He sued, alleging that he lost his job on account of his race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. § 1981. The district court granted summary judgment to SVT on both claims. We affirm.

I

A

SVT hired Morgan to work as a “loss prevention officer” (that is, a security guard) at the Elston Avenue location of its chain of “Ultra Foods” grocery stores. Morgan had previously worked security for Cub Foods, a grocery store that occupied the Elston location before Ultra Foods, but he left that job to take a higher-paying security position at a nearby Home Depot. Morgan was still working a full-time shift at Home Depot when he took the job at Ultra Foods in June 2007. He was a hard worker: he testified that he typically worked eight hours a day at Home Depot, and then worked up to six more hours at Ultra Foods. At the time the events in this case took place, Morgan was working roughly 40 hours a week at Home Depot and between 20 and 30 hours a week at Ultra Foods.

Morgan's direct supervisor at Ultra Foods was Raymond Gutierrez, whom Morgan knew from previous security jobs. As a “loss prevention manager,” Gutierrez was responsible for overseeing security at four SVT-owned grocery stores in the Chicago area. Because Morgan was the only security officer assigned exclusively to the Elston store, Gutierrez sometimes personally worked security at the store as well. Gutierrez's supervisor was John Mowery, SVT's Director of Loss Prevention.

Morgan's primary duty as a loss prevention officer was to detain shoplifters. When a customer takes an item, conceals it, and walks past the last point of purchase without paying for the item, the loss prevention officer should apprehend the customer, bring the customer to an enclosed area, and identify and document the item that was taken. The customer is then generally allowed to leave, depending on the value of the item. This procedure is known as a “theft stop.” Although SVT does not have a formal policy requiring a specific number of theft stops, Morgan was aware—based on his prior experience as a security guard and guidance from SVT—that his performance would be measured in part by the number of theft stops he made. Upon hiring Morgan, Gutierrez emphasized that SVT enforced its theft-stop policy more stringently than Cub Foods had, and that maintaining a reasonable number of theft stops was important to the company. Gutierrez also informed Morgan that other loss prevention officers had been fired for insufficient theft stops.

For the first two months Morgan worked at Ultra Foods, his theft-stop numbers were good. He made six stops in July and five in August. In September, however, Morgan made only one stop, and he made no stops in the first week of October. Gutierrez—who preferred to have informal discussions with his loss prevention managers when there was a problem with their performance, rather than issuing written warnings—had three or four conversations with Morgan in which he warned him that he needed to get his numbers up. Morgan did not perceive these conversations as disciplinary warnings, but he acknowledges that they took place. Gutierrez also testified that he proposed that Morgan transfer to a store in Forest Park, where it might be easier for him to make stops, but that Morgan rejected this option because the store was too far away. Morgan disputes this. In his telling, he suggested the move to Gutierrez, but Gutierrez did not respond. For purposes of summary judgment, we accept Morgan's version; the important point is that it is undisputed that the two discussed Morgan's poor record of theft stops before he lost his job.

On October 7, 2007, Morgan found himself chatting with the Elston store's dairy manager, Frank Kajdawowski. Kajdawowski, who is white, told Morgan that his wife was taking him to see the musical “Jersey Boys.” As they were speaking, Kajdawowski picked up a copy of the Chicago Tribune, removed the “Showcase” section (which featured an article about Jersey Boys) from the paper, and placed it in his pocket. Morgan knew that store policy prohibited shoplifting by employees as well as customers, but he was hesitant to stop Kajdawowski because he was a manager. SVT's security policy provided for stopping a rank-and-file employee who attempted to leave the store with unpurchased merchandise, but there was no corresponding policy concerning managers. Therefore, instead of apprehending Kajdawowski, Morgan used the store's surveillance system to videotape Kajdawowski walking around the store with the newspaper in his pocket and eventually leaving the store without paying for the paper. Morgan then reported the incident to Gutierrez and the Elston store manager, Mike Gugliano. Gutierrez and Morgan reviewed the video of the incident the next day, and Morgan wrote a statement describing what had occurred.

After reviewing the incident, Gutierrez concluded that Morgan acted too leniently and instead ought to have apprehended Kajdawowski. His supervisor, Mowery, by contrast, thought Morgan handled the incident appropriately. Morgan was not disciplined or reprimanded in relation to his handling of the “Kajdawowski incident.” Kajdawowski received a one-day suspension without pay.

Immediately after the Kajdawowski incident, Morgan began receiving formal written disciplinary warnings, known as “Employee Corrective Action Notices.” On October 9, Gutierrez issued two Corrective Action Notices. One stated that Morgan's quality of work was low, citing his lack of theft stops in the previous five to six weeks. It further stated that SVT expected Morgan to make between two and three theft stops a week and warned that if Morgan's performance did not improve by the end of the month, he risked being fired. The second notice reported that Morgan had been 90 minutes late on October 8, 2007, and that he had failed to follow the proper protocol for notifying SVT that he was running late. Morgan believes that these disciplinary notices were punishment for reporting Kajdawowski. He asserts that SVT had overlooked issues with his tardiness and low number of theft stops in the past and argues that SVT's sudden interest in disciplining him arose only after it realized that he was “the type of African–American who would turn in a white supervisor.” (Morgan had, in fact, received two Corrective Action Notices for tardiness prior to the Kajdawowski incident; the notices indicated that they were for the fourth and sixth occasions on which he was late. Both were ultimately waived.)

Sometime after issuing the October 9 Corrective Action Notices, Gutierrez decided to dismiss Morgan. According to Gutierrez, this decision was reached after comparing Morgan's theft-stop numbers to those of other loss prevention officers and after noting that Morgan had not made any theft stops since receiving the warning on October 9. Mowery approved Gutierrez's decision. In Mowery's opinion, Morgan was exhausted from working 70–80 hours a week, and this prevented him from adequately performing his job.

Morgan was fired on October 24, 2007. The Corrective Action Notice accompanying this action stated that Morgan was being fired for “lack of Production/Theft Stops.” Morgan was replaced with a man who was fired after only a month for lack of theft stops. The next person hired remains in the job.

B

On August 12, 2008, Morgan filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging race discrimination and retaliation for reporting Kajdawowski's shoplifting. The EEOC issued a right-to-sue letter on October 23, 2009. Morgan then filed this lawsuit in the district court, alleging race discrimination theories under both Title VII, 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. § 1981. He did not renew his claim for retaliation. The parties consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c) and Northern District of Illinois Local Rule 73.1.

SVT moved for summary judgment. The court granted the motion after concluding that Morgan had put nothing in the record that could support a finding of racial discrimination. It emphasized that Morgan had not identified any other SVT employee outside his protected class who was treated more favorably under similar circumstances, nor had he presented evidence that SVT had a pattern of treating workers within his protected class unfavorably. Indeed, Morgan acknowledged that up until his termination, he never felt that Gutierrez treated him or any other employee differently on account of his race. Neither did the circumstances surrounding Morgan's firing, in themselves, raise a plausible inference of race discrimination. Although Morgan argued that the timing of his firing (so soon after the Kajdawowskiincident) was “suspicious,” given Morgan's documented failure to perform theft stops, Gutierrez's prior warnings about the lack of theft stops, and SVT's stringent enforcement of its anti-shoplifting policies, the court concluded that suspicious timing alone was insufficient to create a genuine dispute over whether Morgan was fired for failing to meet SVT's legitimate job expectations or for insidious racial...