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CROSS v. ROADWAY EXPRESS

August 18, 1994

RICHARD CROSS, Plaintiff,
v.
ROADWAY EXPRESS, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 Richard Cross ("Cross") has sued his employer Roadway Express, Inc. ("Roadway"), asserting that a series of disciplinary letters issued to Cross reflect racial discrimination in violation of both Title VII of the 1964 Civil Rights Act ("Title VII") and 42 U.S.C. ยง 1981 ("Section 1981"). Roadway has moved for summary judgment under Fed. R. Civ. P. ("Rule") 56, and all of the parties' memoranda and supporting materials are now in hand. *fn1" Based on this Court's review of the parties' submissions and for the reasons stated in this memorandum opinion and order, Roadway's motion is granted and this action is dismissed.

 Summary Judgment Principles

 Familiar Rule 56 principles impose on the movant the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable"--in the light most favorable to nonmovant Cross ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991) and cases cited there). While "this general standard is applied with added rigor in employment discrimination cases, where intent is inevitably the central issue" ( McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370-71 (7th Cir.1992)), that does not foreclose the potential for summary judgment in such cases ( Washington v. Lake County, 969 F.2d 250, 254 (7th Cir.1992)). Moreover, "a plaintiff facing the prospect of summary adjudication cannot 'sit back and simply poke holes in the moving party's summary judgment motion'" ( Young In Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1261 (7th Cir.1993)). This opinion turns first to the evidentiary facts, then will proceed to the application of the just-stated principles.

 Facts

 Roadway is a transportation company with facilities nationwide, including one in Chicago Heights, Illinois (the "Facility") that comprises a terminal to which freight is delivered and a relay through which it is dispatched. Approximately 700 people are employed in the relay portion of the Facility, about half of whom ("drivers") are responsible for hauling freight between various Roadway depots via semi-tractor-trailer units. Drivers are overseen by driver supervisors and by line haul dispatchers ("dispatchers"), with the dispatchers also having responsibility for parceling out the drivers' work assignments.

 Cross (who is black) worked off and on as a driver assigned to the Facility from July 28, 1984 until May 17, 1992, since which time he has been on personal sick leave. Like other Chicago-Heights-based drivers, Cross was a member of the bargaining unit represented by Local 710 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Union").

 Roadway has promulgated a well-defined and documented attendance policy governing its drivers' availability--or unavailability--to receive work assignments. Its Road Driver's Manual (the current version of which was first issued in 1986) provides:

 
Reporting for Duty
 
Under the hours of service regulations, you must be given a rest period of at least eight hours before you are recalled to duty. After eight hours, you are responsible for being available to receive a duty call. Unavailability is cause for disciplinary action.
 
When the dispatcher makes the duty call, he or she will instruct you when to report for work. Two hours' advance notice is usually given. Failure to report for work after a duty call will result in a loss of earnings, and may result in disciplinary action.

 Drivers who are disabled for an extended period are eligible for two kinds of leaves of absence: a workers' compensation leave of absence if the disability is work-related and a personal medical leave of absence if it is not. Drivers are also permitted five additional sick days per year pursuant to the collective bargaining agreement ("CBA") negotiated between Roadway and Union.

 Roadway's Labor Guide sets out guidelines for handling all personnel matters, including discipline. One of the primary areas of offense is absenteeism--"unexcused absences"--defined as (1) unavailability for dispatch and (2) failure to report for a run that a driver has accepted. Two unexcused absences within any 60 calendar days *fn2" constitute a first "offense." Both the first offense and the second offense trigger warning letters. Any third offense calls for a suspension. Still a fourth offense reverts to the issuance of one last warning letter. And the fifth offense calls for discharge of the offending employee. *fn3"

 From November 1987 through December 1992 Mike Lamphere ("Lamphere") served as the Chicago Heights relay manager, in which capacity his responsibilities included reviewing prospective disciplinary actions before they were issued. *fn4" That chore included an investigation of the documentation supporting the proposed discipline as well as a review of the accused driver's overall record. Roughly 10 to 25 proposed disciplinary letters typically made their way across Lamphere's desk each week, a total reflective of the fact that supervisors and dispatchers were apparently not very shy about writing people up. Indeed it was not uncommon for a driver with several years' experience to have received more than a dozen written warnings--and as the later discussion reflects, ...


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