Cain v. Continental Tire

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

GREGORY CAIN,

Plaintiff,

v. Case No. 19-cv-643-SPM

CONTINENTAL TIRE THE

AMERICAS, LLC,

Defendant.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

Pending before the Court is a Motion for Summary Judgment and supporting

Memorandum of Law filed by Defendant, Continental Tire The Americas, LLC (“CTA”)

(Docs. 49, 50). For the reason’s set forth below, the Court GRANTS the Motion for

Summary Judgment.

This action arises from the employment of Plaintiff Gregory Cain (“Cain”) at CTA

(Doc. 1). In his second amended complaint, Cain brought claims of hostile work

environment and race and national origin discrimination under Title VII of the Civil

Rights Act of 1967 (“Title VII”), as well as discrimination under the Americans with

Disabilities Act (“ADA”) (Doc. 13). Cain claims that CTA discriminated against him,

caused him great emotional distress and pain and suffering, stopped workers’

compensation, committed medical negligence and retaliated against him by putting a

hold on further treatment to heal him because of his “darker race” (Id.).

FACTUAL BACKGROUND

Within its Motion for Summary Judgment, CTA set forth its factual allegations

in numbered paragraphs (Doc. 49). In accordance with Rule 56(c)(1)(A) of the Federal

Rules of Civil Procedure, CTA cited to particular portions of the record to support its

contention that each and every fact alleged was material and undisputed (Id.).

Cain filed three separate responses to the motion for summary, on September 2,

2021, September 15, 2021, and September 23, 2021, respectively; however, none of the

responses complied with Rule 56 (Docs. 54, 59). As such, and in accordance with Rule

56(e)(2), this Court may consider the facts set forth by CTA as undisputed for purposes

of this motion. Nevertheless, the Court is still obligated to ensure that the evidence

submitted by CTA properly substantiates its assertions of entitlement to summary

judgment. Fed. R. Civ. P. 56(e)(3). Indeed, the [movant] must still demonstrate that it

is entitled to judgment as a matter of law.” Keeton v. Morningstar, Inc., 667 F.3d 877,

884 (7th Cir. 2012).

The following is a summary of the facts alleged by CTA, limited to those facts

which would be admissible at trial and which are adequately supported and material to

the issues in this case.

CTA operates a tire manufacturing plant in Mt. Vernon, Illinois. On March 14,

2016, CTA hired Cain as a passenger extruder operator, a full-time hourly position.

Cain’s Offer of Employment letter set forth the terms and conditions of his employment,

including group health insurance with Blue Cross/Blue Shield (“BCBS”) provided by

CTA. Cain received training on CTA policies and procedures at orientation. CTA has an

Equal Employment Opportunity policy and a policy that includes mandatory drug and

alcohol testing procedures for when employees are injured at work or when initiating a

workers’ compensation claim. Cain understood that an employee had to submit to a drug

test when involved in a work-related injury.

CTA’s Mt. Vernon plant has an onsite first-aid station called “Health Services”1

that provides triage and/or immediate medical aid to ill and injured CTA workers.

Health Services was staffed by SSM medical personnel, not CTA employees, who were

hired by SSM. Every CTA employee who was injured at CTA had to submit to a drug

test. Although the drug test normally occurred at Health Services immediately following

the incident, in a medical emergency, immediate medical care may prevent the drug

screen until a later time. If a CTA employee is ill or injured, Health Services2 can direct

them to urgent care and/or the emergency room.

On June 1, 2018, CTA supervisor, Donny Smith, took Cain to Health Services

with reported pain and swelling in his right hand. At Health Services, Cain was drug

tested and signed the consent form in accordance with CTA policies and procedures for

work related injuries. At Health Services, the SSM staff offered to take Cain to Urgent

Care, but he decided to go home and ice his hand.

On June 30, 2018 Cain went to Health Services and reported swelling in his right

arm. Cain had a drug screen at Health Services and signed the consent pursuant to CTA

policy regarding on-the-job injuries. At that time, there was a Caucasian woman called

“Summer” also in Health Services who was bleeding “all over the place” and needed

stitches in her finger. Summer did not get a drug test at Health Services, but she got

1 Some CTA employees referred to Health Services as the Nurses’ Station.

2 This decision is made by SSM medical personnel in the exercise of their professional judgment.

one about a week later when she returned to CTA. Cain did not have any issues with

taking a drug test so long as everyone had to take one. Summer is the only person he

knows of who was not required to take a drug test immediately after an incident.

There were two SSM employees at Health Services, Tom Stoudt (“Stoudt”) and

Dawn (“Dawn”), attending to both Summer and him. Stoudt was not an employee of

CTA. SSM personnel called the rover to take Summer to the hospital, but Cain was

given a note for Urgent Care and was told that Health Services did not have another

rover. SSM has access to one CTA rover to transport injured employees offsite and SSM

makes the determination who medically needs the rover. Cain only had 17 minutes to

get to Urgent Care, but he made it on time. Stoudt had no oversight of workers’

compensation claims at CTA and any statements he may have made were just his

opinions. At Urgent Care, a blood clot was ruled out and the treater believed Cain had

carpal tunnel. Cain was released to light duty and told to follow up with the nurse

practitioner at CTA.

Cain complained about the treatment he received from Stoudt in Health Services

and submitted a “Fair Treatment Form” to CTA. Cain’s complaint centered on Stoudt

and not any CTA employees. Stoudt never mentioned Cain’s race, but Cain felt

discriminated against because Stoudt treated Caucasian people like Summer and

another man differently. On August 9, 2018, after he filed the Fair Treatment Form,

Cain met with Mike Wagoner (“Wagoner”), the head of HR at CTA, and Paige Owens

(“Owens”), an HR representative for CTA, to discuss his concerns. Cain knew Owens

from his orientation and thought the meeting went very well.

On September 21, 2018, Cain returned to full duty work, but was injured when

he resumed his regular duties. Cain visited Health Services and the SSM personnel

authorized the rover take him to Urgent Care. Per Cain, everything was “handled

perfectly”.

CTA’s workers’ compensation program is administered by Sedgwick. Sedgwick

adjudicates workers’ compensation claims and conducts the investigations and medical

reviews. On September 14, 2018, Cain filed a workers’ compensation claim for his June

1, 2018 injury.

On September 21, 2018, Cain saw his physician, Dr. John Ahn, at the Orthopaedic

Center of Southern Illinois for evaluation of his right hand. Sedgwick arranged for him

to get a second opinion. On October 15, 2018, Cain saw Dr. Paletta at the Orthopedic

Center of St. Louis for evaluation of his left shoulder and also saw Dr. David Brown for

evaluation of his wrists.

Melody Cravens, CTA’s workers’ compensation administrator, received Dr.

Paletta’s report and questioned the accuracy of the passenger extruder operator

description utilized, as well as the description of repetitive nature of the job duties.

Cravens spoke with Cain’s supervisor, James Johnson, regarding Cain’s job duties and

a work study report was performed of the passenger extruder operator position to

evaluate the actual job duties.

On November 21, 2018, Andrew Keefe (“Keefe”), CTA’s workers’ compensation

attorney, reached out to Ryan Baker (“Baker”), Cain’s attorney, disputing causal

connection of the injury to Cain’s job duties and advising that Cain had group health

insurance available. Baker advised Cain to consider using his group health insurance.

On January 23, 2019, Keefe sent Baker a job video, work study of passenger

extruder operator position and a memorandum requesting to forward same to Dr.

Paletta and Dr. Brown for review to address causation. On April 23, 2019, Keefe sent a

follow-up to Baker regarding the extruder operator position, the job video, and job

description.

On May 9, 2019, Baker advised Keefe that he had Cain’s permission to submit

the video and job description to Dr. Paletta and Dr. Brown for opinions regarding

causation. On May 31, 2019, the information was forwarded with a request as to

whether opinions and treatment recommendations/restrictions were causally related to

Cain’s work at CTA.

On June 6, 2019, Dr. Paletta opined that his diagnosis and treatment did not

change, but his causation was altered to say that Cain was not doing any activities on-

the-job that would cause or contribute to impingement syndrome. The report was

forwarded from Keefe to Baker on June 20, 2019, along with correspondence that CTA

would not agree to authorize ongoing shoulder treatment.

On July 8, 2019, Dr. Brown opined that if Cain had been on restricted duties since

June of 2018, any increased and/or new symptoms in his left hand would not be causally

related to his work duties at CTA. The report was forwarded from Keefe to Baker on

August 21, 2019, along with correspondence that CTA denied the request for ongoing

treatment of Cain’s upper extremities.

Work-Fit Center is a physical therapy provider at the Mt. Vernon CTA plant and

is an employee benefit paid by CTA. Cain received physical therapy at Work-Fit Center

from July 2018 through August 2019, even while on medical leave. During this time

frame, Cain fired Baker as his workers’ compensation attorney.

Cain could have received medical treatment between November 2018 and August

2019 under his BCBS health insurance through CTA. After his workers’ compensation

was denied, Cain received the shoulder and hand surgeries under his BCBS insurance.

On November 8, 2018, Cain filed a Charge of Discrimination with the EEOC. On

March 14, 2019, Brandi Kraft, EEOC investigator, advised that she had been unable to

establish a clear violation. On March 18, 2019, the EEOC issued a dismissal and notice

of rights.

Cain has not filed any other EEOC charges. Cain was not discouraged by any

CTA employee from filing an EEOC charge or from filing a workers’ compensation claim

nor did any CTA employee ever say anything negative about his charge. On December

2, 2018, Cain had his annual review at CTA. Cain received pay increases during his

time at CTA and never had a change in position or benefits. The only Fair Treatment

Form Cain submitted while at CTA was regarding Stoudt’s treatment.

Cain is currently receiving long-term disability benefits through CTA. He was on

light-duty work from July 2018 until August 2019. The passenger extruder operator job

description calls for medium to heavy work, occasional exposure to heat and dust,

constant exposure to noise and moving equipment, ability to stoop, bend, walk long

distances, climb stairs and lift 50 or more pounds on occasional to frequent basis, and

medium to heavy pushing and pulling. Cain is currently unable to do his job due to his

disability. Cain was unable to perform the essential functions of his job from September

5, 2019 until September 18, 2020 and is currently unable to perform the essential

functions with or without accommodations.

PROCEDURAL HISTORY

On June 13, 2019, Cain filed his complaint against CTA (Doc. 1). On August 14,

2019, the complaint was dismissed for failure to state a claim; however, Cain was

granted leave to file an amended complaint (Doc. 4).

On September 12, 2019, Cain filed his amended complaint (Doc. 5). Because the

amended complaint appeared to be missing pages and was lacking the EEOC charge,

the IDHR charge, and the right to sue letter, Cain was granted until October 28, 2019

to file a second amended complaint (Doc. 10).

On October 24, 2019, Cain filed his second amended complaint (Doc. 13). On

January 15, 2020, Cain was granted leave to proceed in forma pauperis (Doc. 16). In

that Order, the Court noted that it had conducted a preliminary review of the second

amended complaint and determined that Cain had sufficiently alleged discrimination

claims under Title VII and Section 1981, discrimination under the ADA, and retaliation

under Title VII (Id.). The Court reiterated that Cain had not stated claims for a hostile

work environment and negligence, so those allegations were dismissed without

prejudice (Id.).

On July 20, 2020, CTA filed a motion for definite statement (Docs. 24, 28). On

September 22, 2020, the Court denied the motion and divided Cain’s claims into the

following three counts: (I) Race and/or national origin discrimination under Title VII of

the Civil Rights Act of 1967 and 42 U.S.C. §1981; (II) Discrimination under the

Americans with Disabilities Act of 1990; and, (III) Retaliation under Title VII of the

Civil Rights Act of 1967 (Doc. 28). On October 6, 2020, CTA answered the amended

complaint (Doc. 30).

On November 2, 2020, this case was assigned CJRA Track B with the final

pretrial conference being set on October 14, 2021 and a presumptive jury month of

November 2021 (Doc. 31). On December 15, 2020, a scheduling order was entered

regarding the handling of discovery and providing a deadline of July 23, 2021 for the

filing of dispositive motions (Doc. 34).

On July 23, 2021, CTA filed its motion for summary judgment and supporting

memorandum of law (Docs. 49, 50). On that same date, CTA also filed a notice of filing

pursuant to Rule 56 of the Federal Rules of Civil Procedure, regarding the motion for

summary judgment that advised Cain, as a pro se litigant, of the procedures and

potential pitfalls of Rule 56 (Doc. 51). The notice included a copy of Rule 56 in its entirety

(Doc. 51-1). Cain’s response was due on August 26, 2021; however, since no response

was filed, on August 30, 2021, the Court issued an Order to show cause, granting Cain

until September 13, 2021 to respond (Doc. 52).

On September 2, 2021, Cain filed two handwritten documents – one was

designated as response to order to show cause and the other as response to motion for

summary judgment (Docs. 53, 54). Cain claimed he could not respond to motion because

he did not have it and claimed to be a whistle-blower who had faced racial

discrimination, retaliation, and no medical care (Id.).

On September 15, 2021, Cain filed his second response to motion for summary

judgment, this time a three-page document asking the Court to keep the case open;

however, he again failed to comport to any of the requirements set forth in Rule 56 (Doc.

59).

On September 16, 2021, CTA filed a reply, after having obtained leave to do so.

(Doc. 61). Within its reply, CTA first rebutted Cain’s contention that he had not received

the motion, and then argued that Cain provided no evidence to establish a prima facie

case for relief for any of his claims or to permit a reasonable factfinder to conclude that

he suffered any adverse employment action or retaliation (Id.).

On September 23, 2021, Cain filed his third response to motion for summary

judgment, this time a one-page document where he again “humbly asked the court not

to dismiss the case” (Doc. 62). Not only was this the third response and filed out of time,

it again failed to comport to any of the requirements set forth in Rule 56 (Id.).

LEGAL STANDARD

Summary Judgment – Rule 56 of the Federal Rules of Civil Procedure

The court shall grant summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055 (7th Cir. 2014) (quoting

Fed. R. Civ. P. 56(a)). Once the moving party has set forth the basis for summary

judgment, the burden then shifts to the nonmoving party who must go beyond mere

allegations and offer specific facts showing that there is a genuine issue of fact for trial.

Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Stated another

way, the nonmoving party must offer more than “[c]onclusory allegations, unsupported

by specific facts,” to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d

767 (7th Cir. 2003) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990)).

Summary judgment is “the put up or shut up moment in a lawsuit” where a party

lays its proverbial cards on the table, showing what evidence it possesses to convince a

trier of fact to agree with its version of the events. Steen v. Myers, 486 F.3d 1017, 1022

(7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th

Cir. 2005). Summary judgment is proper against “a party who fails to make a showing

sufficient to establish the existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial.” Id. at 322. The non-moving party

“must do more than simply show that there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986). “The mere existence of a scintilla of evidence in support of the [non-movant's]

position will be insufficient; there must be evidence on which the jury could reasonably

find for the [non-movant].” Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986).

Local Rules

According to Local Rule 7.1(c)(1) of the U.S. District Court for the Southern

District of Illinois, which includes motions for summary judgment, “[A]n adverse party

in a civil case shall have 30 days after service of a motion listed above to file a response.”

(SDIL-LR 7.1(c)(1)) (emphasis added). Local Rule 7.1(c) goes on to state, in pertinent

part that:

“Failure to timely file a response to the motion may, in the Court’s

discretion, be considered an admission of the merits of the motion.

Reply briefs, if any, shall be filed within 14 days of the service of a

response. Reply briefs are not favored and should be filed only in

exceptional circumstances. … under no circumstances will sur-

reply briefs be accepted.” (SDIL-LR 7.1(c)).

Cain’s response to the Motion for Summary Judgment was due within 30 days of

filing, or by August 26, 2021 (Doc. 49). Because no response had been received by August

30, 2021, this Court entered an Order to Show Cause, advising Cain to respond to show

cause OR respond to motion for summary judgment by September 13, 2021 (Doc. 52).

On September 2, 2021, Cain filed his first response to summary judgment (Doc. 54).

Then without leave of Court and outside of the already extended time to respond, Cain

filed two additional responses, on September 15, 2021 and on September 23, 2021 (Docs.

59, 62).

While it is true that pro se pleadings are liberally construed; leniency toward

a pro se litigant is circumscribed. See Greer v. Bd. Of Educ., 267 F.3d 723, 727 (7th Cir.

2001) (courts are not “obliged ... to scour the record looking for factual disputes” to rescue

a pro se litigant from losing summary judgment). Pro se status does not serve as a

license to ignore the Federal Rules of Civil Procedure or the Local Rules. See Members

v. Paige, 140 F.3d 699, 702 (7th Cir. 1998) (“[procedural] rules apply to uncounseled

litigants”); Downs v. Weslphal, 78 F.3d 1252, 1257 (7th Cir. 1996) (“pro se litigants are

not entitled to a general dispensation from the rules of procedure”). Furthermore,

although severe, the Seventh Circuit has consistently upheld district judges’ discretion

to require strict compliance with local rules. Coleman v. Goodwill Indus. of Se. Wis.,

Inc., 423 Fed.Appx. 642, 643 (7th Cir. 2011) (“Though courts are solicitous of pro se

litigants, they may nonetheless require strict compliance with local rules); Wilson v.

Kautex, Inc., 371 Fed.Appx. 663, 664 (7th Cir. 2010) (“[S]trictly

enforcing Local Rule 56.1 was well within the district court’s discretion, even though

Wilson is a pro se litigant.”) (citation omitted); Cady v. Sheahan, 467 F.3d 1057, 1061

(7th Cir. 2006) (“[E]ven pro se litigants must follow rules of civil procedure.”).

ANALYSIS

I. Race and/or National Origin Discrimination

Cain first claims that CTA discriminated against him on the basis of his race

and/or national origin in violation of Title VII of the Civil Rights Act of 1967 and 42

U.S.C. §1981 (Doc. 28). Title VII prohibits employers from discriminating against

employees because of their race, color, religion, sex, or national origin. 42 U.S.C. §

2000e–2(a)(1).

The test for proving discrimination “is simply whether the evidence would permit

a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or

other proscribed factor caused the discharge or other adverse employment action”.

David v. Board of Trustees of Community College District No. 508, 846 F.3d 216, 224

(7th Cir. 2017) citing Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016).

Generally speaking, the plaintiff has the initial burden of establishing that: (1) he is a

member of a protected class, (2) he performed reasonably on the job in accord with his

employer[’s] legitimate expectations, (3) despite his reasonable performance, he was

subjected to an adverse employment action, and (4) similarly situated employees outside

of his protected class were treated more favorably by the employer.” Andrews v. CBOCS

West, Inc., 743 F.3d 230, 234 (7th Cir. 2014), overruled on other grounds by Ortiz, 834

F.3d at 765. “If the plaintiff satisfies that burden, then the employer must articulate a

legitimate, nondiscriminatory reason for the adverse employment action, at which point

the burden shifts back to the plaintiff to submit evidence that the employer's

explanation is pretextual.” Id.

There is no question that Cain, an African American, is a member of a protected

class and that he received pay increases and never had a change in position or benefits

prior to his injury (Doc. 49, ¶ 76). However, Cain has not shown that any adverse

employment action was taken by CTA as the crux of his allegations focus on the conduct

of Health Services and the SSM personnel. Although the definition of

an adverse employment action is generous, it is still subject to certain limitations that

Cain cannot meet. See Herrnreiter v. Chicago Housing Auth., 315 F.3d 742, 744 (7th

Cir.2002). At the very least, Cain must show some quantitative or qualitative change in

the terms or conditions of his employment. Id.

Notwithstanding the forgoing, Cain has not shown that any similarly situated

employee outside of his protected class was treated more favorably. When asked about

similarly situated non-black employees, Cain mentioned a Caucasian female known as

“Summer” (Id., ¶ 29). First, Cain indicated that Summer did not have to take a drug

test upon arriving at Health Services; however, Summer was bleeding and needed

emergency services, and she had to take a drug test when she returned to CTA in

accordance with the CTA policy. (Id., ¶¶ 17, 26-28). Second, Summer was given a ride

to the hospital, but Cain had to drive himself to Urgent Care; however, Summer needed

emergency care and CTA only provides access to one rover to transport injured

employees off-site (Id., ¶¶ 20-21). While the rover can be used in non-life threatening

instances, it is up the professional judgment of the SSM staff to determine who

medically needs access to the rover (Id.).

Assuming arguendo that Cain can meet the burden, Count I would still fail. CTA

has articulated legitimate, nondiscriminatory reasons for what transpired. With respect

to not being drug tested at Health Services, Summer clearly needed emergency care and

the SSM personnel were more concerned with stopping the bleeding. Summer was also

required to be drug tested upon her return to CTA, per policy. As for the use of the rover,

there is only one and SSM personnel, not CTA, determined medical need.

In the employment discrimination context, summary judgment is warranted

where “the evidence, interpreted favorably to the plaintiff, could not persuade a

reasonable jury that the employer had discriminated against the plaintiff.” Palucki v.

Sears, Roebuck & Co., 879 F.2d 1568, 1570 (7th Cir. 1989). Because Cain is unable to

prove a prima facie case of discrimination; summary judgment is clearly appropriate.

II. Discrimination under the Americans with Disabilities Act

In Count II of his amended complaint, Cain alleges that CTA discriminated

against him under Americans with Disabilities Act of 1990 (Doc. 28). “The ADA

prohibits an employer from discriminating against a qualified person on the basis of

disability.” McCurry, 942 F.3d at 789 (citing 42 U.S.C. § 12112(a)). To prove a violation

of this provision, a plaintiff must show “(1) he is disabled; (2) he is otherwise qualified

to perform the essential functions of the job with or without reasonable accommodation;

and (3) the adverse job action was caused by his disability.” Shell v. Burlington N. Santa

Fe Ry. Co., 941 F.3d 331, 335 (7th Cir. 2019), reh’g denied (Dec. 20, 2019).

In this case, Cain can satisfy the first element; he is disabled and is currently

receiving long-term disability benefits from CTA (Doc. 49, ¶79-80). He cannot; however,

satisfy the second element as he is not a qualified individual with a disability. Cain is

unable to do his job at CTA, with or without accommodation (Id., ¶82, 84).

With respect to the ADA, summary judgment for a defendant is appropriate when

the plaintiff “fails to make a showing sufficient to establish the existence of an element

essential to [his] case, and on which [he] will bear the burden of proof at trial.” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). Because Cain is not qualified to perform the

essential functions of his job as passenger extruder operator, with or without

accommodation, there is no reason to analyze the third element and summary judgment

is appropriate on count II of the amended complaint.

Notwithstanding the forgoing, Cain’s claim under the ADA is also precluded as

he did not exhaust his administrative remedies. Under the ADA, “a plaintiff filing suit

in federal court may bring only those claims that were included in her EEOC charge, or

that are like or reasonably related to the allegations of the charge and growing out of

such allegations.” See Chaidez v. Ford Motor Co., 937 F.3d 998, 1004 (7th Cir. 2019) .

“Claims are ‘like or reasonably related’ when (1) there is a reasonable relationship

between the allegations in the charge and the claims in the complaint and (2) the claim

in the complaint can reasonably be expected to grow out of an EEOC investigation of

the allegations in the charge.” Id. ). “The charge and complaint must, at minimum,

describe the same conduct and implicate the same individuals.” Id. (emphases in

original).

In his Charge of Discrimination, Cain stated,

“I began my employment with Respondent in or around 2015. My

current position is Extruder Operator. Beginning around June

2018 and continuing throughout the remainder of my employment,

I have been subject to different terms and conditions of

employment, including, but not limited to, not being given medical

assistance when injured on duty and being required to take a drug

test. Similarly situated non-Black employees were provided

medical assistance when they were injured on duty and were not

required to take a drug test. I have complained to Respondent

about discrimination. I believe I have been discriminated against

because of my race, Black, in violation of Title VII of the Civil

Rights Act of 1964, as amended.” (Doc. 49-27).

While the charge named CTA as respondent, so clearly implicated the same party,

the same conduct is not implicated. The EEOC charge only mentions Title VII and

instances where Cain claims racial discrimination. At no point does the EEOC charge

refer to the ADA, Cain’s carpal tunnel syndrome, and/or a disability, which were

addressed in the second amended complaint.

III. Retaliation under Title VII of the Civil Rights Act of 1967

In Count III of his amended complaint, Cain asserts that he was retaliated

against in violation of Title VII, which forbids employers from retaliating against

employees for complaining about prohibited discrimination. Boss v. Castro, 816 F.3d

910, 917 (7th Cir. 2016). In general, Title VII forbids employer retaliation where an

employee “has opposed any practice made an unlawful employment practice” by Title

VII or “has made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under” Title VII. 42 U.S.C. § 2000e–3(a).

Although the Court noted that Cain’s second amended complaint was “not a

model of clarity”, Chief Judge Rosenstengal advised CTA that the Title VII retaliation

claim asserted by Cain involved the September 26, 2018 ‘complaint’ against CTA and

its medical claims insurance company, Sedgwick, and the October 25, 2018 interview

with the EEOC (Doc. 28). Specifically, Cain claimed that CTA and Sedgwick were not

happy with his EEOC complaint, so they retaliated by putting a halt to his medical

treatment, which could be considered a reduction in Cain’s employment benefits (Id.).

First and foremost, any claim of retaliation has not been exhausted.

In Title VII cases, as with the ADA claim, the scope of the complaint brought before the

administrative agency limits the scope of subsequent civil proceedings in federal court;

in other words, plaintiffs may pursue only those claims that could reasonably be

expected to grow out of the administrative charges. See Dear v. Shinseki, 578 F.3d 605,

609 (7th Cir.2009); Ajayi v. Aramark Business Services, Inc., 336 F.3d 520, 527 (7th Cir.

2003); Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir.1992).

The scope of an administrative charge brought against a private-sector employer

is determined by examining the claims that were “brought to [the EEOC's] attention,”

not by whether the EEOC actually considered or disposed of a given claim. Rush, 966

F.2d at 1112. As set forth infra, Cain’s Charge of Discrimination, which was filed on

November 8, 2018, references Title VII and instances where Cain claims racial

discrimination, but does not mention retaliation even though filed after the September

26, 2018 ‘complaint’ against CTA and its medical claims insurance company, Sedgwick,

and after the October 25, 2018 interview with the EEOC.

Notwithstanding the foregoing, summary judgment is also appropriate on the

merits on the retaliation claim. There are two different ways to make a prima

facie showing of retaliation, the direct method and the indirect method. Boss v. Castro,

816 F.3d 910 (7th Cir. 2016). Under both methods, Cain fails.

A Title VII plaintiff proceeding under the direct method must show that (1) he

engaged in protected activity; (2) he suffered a materially adverse employment action;

and (3) there was a causal link between the protected activity and the adverse

action. Harden v. Marion County Sheriff’s Dept., 799 F.3d 857, 861-862 (7t Cir.

2015)(citing Colman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012). To

prove retaliation under the indirect method, a plaintiff must show that (1) he engaged

in protected activity; (2) he suffered a materially adverse employment action; (3) he was

meeting his employer's legitimate expectations; and (4) he was treated less favorably

than similarly-situated employees who did not engage in protected

activity. Harden, 799 F.3d at 862 (citing Argyropoulos v. City of Alton, 539 F.3d 724, 733

(7th Cir.2008)).

The first two elements of proof are the same under either the direct or indirect

method. While it is clear that Cain engaged in protected conduct in filing both the

workers’ compensation claim and EEOC complaint, and it could be argued that refusal

to pay for further medical could be an adverse employment action, Cain still cannot

prevail under either scenario as he cannot prove the remaining elements. Cain cannot

show a causal connection between the filing of the claim/complaint with the termination

of his benefits as it was based upon the medical opinions of Dr. Brown and Dr. Paletta.

Furthermore, because he was unable to perform his job, with or without

accommodations, he could not meet his job expectations. Finally, Cain has not shown

that he was treated less favorably than similarly situated employees.

While not conceding all the elements have been established under one of the

methods, even if they were, he would still fail. Under both methods, once a prima

facie case is established, a presumption of retaliation is triggered, and the burden shifts

to the employer to articulate some legitimate, nonretaliatory reason for its

action. Id. (citing Coleman, 667 F.3d at 845). CTA can articulate that the loss of

benefits is attributable to the reports of Dr. Brown and Dr. Paletta, a non-pretextual

reason because they both opine that his injuries were not causally connected to his job

duties.

CONCLUSION

For the reasons set forth above, the Court GRANTS the Motion for Summary

Judgment filed by Defendant, Continental Tire The Americas, LLC. This action is

DISMISSED with prejudice and the Clerk of Court is DIRECTED to close this case

and enter judgment accordingly. As such, all pending court dates are cancelled and

terminated.

IT IS SO ORDERED.

DATED: September 24, 2021

/s/ Stephen P. McGlynn_

STEPHEN P. McGLYNN

U.S. District Judge