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February 28, 1996

WALTER F. LISEK, Plaintiff,

The opinion of the court was delivered by: BURNS


 Plaintiff Walter Lisek brings this action to recover wages lost when Defendant Norfolk and Western Railway Company (NW) allegedly dismissed him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and specifically 42 U.S.C. § 2000e-2(m), which prohibits the use of race as a motivating factor for employment practices. Both Lisek and NW seek attorneys' fees and costs pursuant to 42 U.S.C. §§ 2000e-5(g) and (k). This Court has jurisdiction under 42 U.S.C. § 2000e-5(f)(3).


 In 1974 Lisek began working for NW as a switchman. Two years later, Lisek quit his job because of an injury sustained in an off-duty accident. On March 5, 1984, Lisek returned to work for NW.

 On June 18, 1987, NW dismissed Lisek for sleeping while on duty as a brakeman. Lisek appealed his dismissal to the next highest officer, Donald Patterson, Superintendent of the Chicago Terminal.

 On August 19, 1987, Superintendent Patterson denied Lisek's appeal. Lisek then appealed to the Public Law Board (PLB) pursuant to the Railway Labor Act (RLA), 45 U.S.C. § 151, et seq. On May 20, 1988, PLB No. 4469 found NW's dismissal of Lisek constituted excessive discipline. The PLB directed NW to immediately reinstate Lisek, but denied Lisek's claim for lost wages. On June 14, 1988, NW reinstated Lisek without back pay. Lisek did not appeal the PLB decision.

 In August 1987, while Lisek was working his way through the appeal channels provided by NW company policy and the collective-bargaining agreement between NW and the United Transportation Union (UTU), he also filed complaints with the Illinois Department of Human Rights and the United States Equal Employment Opportunity Commission (EEOC). Lisek contended his dismissal was the result of NW's racially discriminatory employment practices as evidenced by the fact that, inter alia, NW did not dismiss four African-American employees who were also caught sleeping while on duty. On July 11, 1990, Illinois Administrative Law Judge Maren J. Dougherty found that Lisek established a prima facie case of discrimination. The ALJ concluded, however, that Lisek failed to show NW's nondiscriminatory reasons for dismissing Lisek were pretextual. ALJ Dougherty, therefore, recommended dismissal of Lisek's complaint. Lisek appealed the ALJ'S decision to the Illinois Human Rights Commission (Commission).

 On November 2, 1990, the Commission concluded Lisek's "work record was worse than that of his comparatives, and thus provides a legitimate, nondiscriminatory reason for the difference in treatment." Accordingly, the Commission affirmed and adopted ALJ Dougherty's Recommended Order and Decision and dismissed Lisek's complaint with prejudice.

 On August 16, 1992, after examining the record and giving substantial weight to the findings and decision of the Illinois Department of Human Rights, the EEOC issued a Determination in which it also concluded that Lisek failed to establish that NW violated Title VII when it dismissed Lisek. On November 11, 1992, Lisek filed a Complaint in this Court.

 Although this case should have been settled early on, instead it was tried in spurts, fits, and starts on April 24 and April 25, 1995. At the end of testimony, the parties and counsel met with The Honorable Wayne R. Andersen, United States District Judge, who devoted most of a day trying to persuade the parties to resolve this case. The genie, however, could not escape from Judge Andersen's lamp despite the insight, experience, and patient perseverance he brought to the sessions. After the parties submitted lengthy and thorough post-trial briefs, oral argument was unnecessary. Alas, it is now left to me to decide.


 NW's Progressive System of Discipline

 NW has an established set of safety, operating, and general conduct rules for employees. Supervisors are guided by NW's "Supervisor's Manual of Procedures for Holding Investigations (May 1983)" (Manual) when employees violate company rules. The Manual states the purpose for imposing discipline on wayward employees is "to correct wrongdoings and misconceptions, to improve attitude and performance and to increase understanding of the necessity of rule observance for a safe and efficient organization." The Manual also contains a corporate equal employment opportunity policy that requires all terms and conditions of employment to be administered in a nondiscriminatory fashion.

 NW has no written guidelines that identify certain infractions as warranting specific disciplinary action; i.e., discipline is determined on a case-by-case basis. When an employee violates NW's rules, the employee is subject to NW's Progressive System of Discipline (System). Under the System, supervisors consider the following factors:

1. Whether any extenuating circumstances exist;
2. The severity (i.e., the seriousness) of the offense; and
3. The employee's record (including length of service, number and type of previous infractions, circumstances surrounding the prior discipline, degree of discipline previously imposed, amount of time elapsed since the last violation, and credits or commendations).

 In addition to the official record of formal disciplinary actions, supervisors may look at an employee's record card, *fn2" which includes oral warnings about safety rule violations. Supervisors also consider whether an employee willingly accepts responsibility for his misconduct.

 A hearing is required before disciplinary action is entered on an employee's official record. An employee may acknowledge responsibility for his actions by waiving his right to an investigation and hearing and accepting the discipline NW decides to impose; however, NW is not required to provide an employee with the opportunity to execute a waiver nor to accept an employee's offer to execute a waiver.

 If a hearing is held and the charges against the employee are upheld, NW can impose the following punishments. Letters of reprimand, deferred suspension for a certain number of days (which is converted to actual suspension days if the employee is disciplined again within the period of suspension), actual suspension for a certain number of days, or dismissal. Under the System, the severity of the punishment increases when an employee repeats the same misconduct or the employee's offenses are increasingly serious; at the same time, the degree of punishment begins at a lower level when the employee commits a violation different from or lesser than previous infractions.

 To ensure uniformity and fairness, a multi-tiered appeals process is available. All disciplinary decisions may be appealed to the next highest officer, which generally means the Superintendent of the Chicago Terminal. If an employee is still dissatisfied with the outcome, he may ask his union representative to file a grievance with the labor relations officer. After on-site appeals are exhausted, the employee may take his case bet ore a PLB pursuant to the RLA. Within the statutory limits and the narrow review permitted by the RLA, the employee may finally appeal the PLB's decision to a United States district court.

 Lisek's official disciplinary record includes the following violations:

1. 8/84 Safety Rule 1013, 5 days deferred suspension.

 Lisek was found in violation of Rule 1013 for failure to observe passing train. Before this incident, Lisek had received two oral warnings with follow-up letters regarding other rule violations.

2. 10/84 Safety Rule 1111(m), 15 days deferred suspension.

 Lisek was found in violation of Rule 1111(m) for being in an improper position next to a switch or, in other words, for unsafe switch operation.

3. 1/85 Failure to Leave Bills for Train, Letter of Reprimand.

 Lisek admitted the violation and received a letter of reprimand for failing to comply with instructions and negligently handling company business.

4. 5/85 Safety Rule 1111(m), 30 days actual suspension.

 Lisek was found to be standing too near the switch. He received harsher discipline than would otherwise have been imposed because of his boisterous insubordination and use of ...

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