and ten white employees caught sleeping between 1979-90 were also dismissed while seven African-American and ten white employees were disciplined less harshly than Lisek.
Lisek's evidence of discrimination at the hearing before the Illinois Department of Human Rights centered on the disciplinary records of four of the African-American employees who were not dismissed after they were caught sleeping on the job. The Commission concluded the comparison of Lisek's disciplinary record to the records of the four African-American employees did not suggest NW's disciplinary actions were racially motivated. I concur. Lisek's disciplinary record was worse than three of the four: Lisek's official record reflected at least six violations in three years while Rogers had only seven in sixteen, McGee had six in fourteen, and Allen had nine in twelve. Reeves, the fourth employee, had thirteen violations in eight years, but had never committed an offense serious enough to warrant an actual suspension until the sleeping incident.
Perusal of the records of all of the seven nonwhite employees who ware disciplined less harshly than Lisek indicate these employees had fewer and less serious previous offenses, their violations were spread over a longer period of time, their circumstances were different (e.g., duties, authority), they had no record of making false statements or concealing facts in previous incidents, they did not initially deny responsibility for their conduct, and/or the situations involved less risk.
Lisek also contends the 60-day actual suspension he received in June 1986 is illustrative of NW's racially discriminatory disciplinary practices. I disagree. Although the three other employees (two nonwhites and one white) involved in the incident received only 15-day actual suspensions, a review of the record reveals that NW found Lisek primarily responsible for the derailment because he allowed a coupler to mismatch. NW also found that Lisek made false statements and concealed facts concerning the incident. The three other employees were less responsible for the derailment and recanted their initial false stories.
The law does not require that historical comparisons be on all fours: "Utter consistency is difficult" when different decision-makers are involved. Timms v. Frank, 953 F.2d at 286. As this Court has noted before, "A pattern, in which blacks sometimes do better than whites and sometimes do worse, being random with respect to race, is not evidence of racial discrimination." Bush v. Commonwealth Edison Co., 990 F.2d 928, 931 (7th Cir. 1993), cert. denied, 128 L. Ed. 2d 367, 114 S. Ct. 1648 (1994). I find analysis of the comparables does not indicate a significant inconsistency in NW's treatment of employees who were caught sleeping on the job; thus, Lisek has not sufficiently shown that NW treated similarly-situated, nonwhite employees more leniently than Lisek because they happened to be nonwhite.
2. NW's Consideration of Personnel Records.
Lisek contends NW either fabricated its purported reliance on incidents outside of Lisek's official record or NW wrongfully relied upon same during the process of determining discipline for the sleeping incident.
If NW considered the incidents listed on Lisek's record card, Lisek contends NW was engaging in discriminatory disciplinary practices because NW did not consider other employees' "whole" records. I find the testimony of NW's employees credible and accept their assertions that NW considered Lisek's entire personnel record when it decided dismissal was appropriate. Lisek did not produce persuasive evidence that NW considered his whole record merely because he is white or that NW failed to consider the whole records of nonwhites. In addition, I find the legitimacy of NW's articulated reasons for arriving at its decision to dismiss Lisek withstands scrutiny on the basis of Lisek's official record standing alone.
Lisek also points out that NW was prohibited from considering any incidents outside of his official record under the terms of the UTU collective-bargaining agreement; however, the interpretation of and compliance with the union contract is beyond the scope of the matters before me.
Lisek also asserts NW should have taken into consideration the fact that four of the six incidents on Lisek's official record (including the most serious offenses) were being appealed at the time of the sleeping incident.
I find no relevance in this fact since Lisek offers no examples where pending appeals of nonwhite employees were influential factors in NW's disciplinary considerations.
3. NW's Refusal to Accept Waiver.
Lisek also contends NW's refusal to allow him to waive his rights to an investigation and hearing by accepting responsibility for his misconduct illustrates NW's racially discriminatory disciplinary practices. I disagree.
Lisek did not offer convincing evidence that NW allowed a disproportionate number of nonwhite employees to execute waivers for serious offenses. NW's records show that during the period January 1987 through March 1989, an almost equal percentage of white and nonwhite employees were allowed to execute waivers. NW's records also reflect that five white employees were permitted to waive hearings when caught sleeping on the job.
Lisek also offered no evidence to indicate NW routinely denied him the opportunity to execute a waiver; in fact, he was permitted to do so relating to the March 1987 train derailment only two months before the sleeping incident.
4. NW's Absence of Standards for Imposing Discipline.
Lisek also argues "a case of disparate treatment may be proven where employment decisions are made by supervisors subjectively without definite standards for review, and the decisions result in a pattern clearly" disfavoring employees on the basis of race. Satz v. ITT Financial Corp., 619 F.2d 738, 746 (8th Cir. 1980). Lisek contends NW's System fails to set forth standards or rules to ensure discipline is meted out in a uniform and racially neutral fashion; in effect, Lisek argues that supervisors have unfettered discretion to impose discipline under the System, and the result is racial discrimination.
As this Court has noted before, "most employment decisions involve an element of discretion." Riordan v. Kempiners, 831 F.2d 690, 697 (7th Cir. 1987). NW acknowledges its supervisors have much discretion when determining the validity of rule violations and imposing appropriate discipline. I find, however, the multi-tiered appeals process available to NW employees provides more than a nominal check on supervisors' discretionary powers. In the end, I find nothing in the record that indicates Lisek suffered from the absence of rigid disciplinary guidelines since he had the opportunity to make his case before several fora.
5. Miscellaneous Arguments.
Lisek contends NW dismissed him in retaliation for his filing of a complaint with the Illinois Department of Human Rights in which he charged NW with racially discriminatory employment practices. Until he filed his complaint, Lisek asserts his union representative was well on the way to getting him reinstated within 60 or 90 days. Lisek has not fully pleaded a cause or action based on retaliatory conduct nor do I find any basis in the record to support such an allegation.
b. Lost Wages.
Lisek contends NW's failure to pay his lost wages reflects NW's wrongful employment practices. Lisek appears to be challenging both the PLB decision directing NW to reinstate him without back pay and NW's compliance with the PLB directive.
The PLB found Lisek's dismissal was an excessively harsh disciplinary measure and, as a result, ordered Lisek's reinstatement without back pay. PLB awards are "final and binding" upon both parties to a dispute. A party may turn to the United States district courts to review a PLB's order, 45 U.S.C. § 153 First (p) and Second, but all actions must be initiated "within two years from the time the cause of action accrues under the award." 45 U.S.C. § 153 First (r). The statutory time to appeal the PLB's decision elapsed before Lisek brought this action, therefore, the PLB's decision can no longer be challenged.
Rule 49 § 1(f) of the Rules and Rates of Pay for employees represented by the UTU requires NW to reinstate and to pay an employee for back pay if dismissal is found to be unjust. Lisek asserts NW's compliance with the PLB's decision was in direct violation of the UTU collective-bargaining agreement; however, as noted previously, interpretation of and compliance with the union contract is beyond the scope of the matters before this Court.
It is unclear whether Lisek is also implying that NW's refusal to pay his back wages is in some way racially motivated. I find no evidence, however, that NW paid lost wages to any nonwhite employee after the PLB directed NW to reinstate that employee without back pay.
c. Cobbs's Memo.
Lisek asserts a confidential memo directed to Superintendent Patterson by Trainmaster R. D. Cobbs, an African-American, unfairly prejudiced NW against Lisek and illustrates NW's discriminatory employment practices.
Both Cobbs and Patterson testified Cobbs wrote the letter at the request of either Patterson or Salmons. The memo was written in late August or early September 1987 after Lisek's dismissal in preparation for NW's response to Lisek's complaint filed with the Illinois Department of Human Rights. Although the contents were certainly not favorable to Lisek, I find little in the letter that could not be deduced from a cursory reading of Lisek's personnel record. I also find nothing in the letter to indicate it was written with racially discriminatory motives.
d. Motive for NW's Racial Discrimination.
Lisek contends NW disciplined nonwhites less severely than whites in an effort to avoid Title VII charges of discrimination by nonwhite employees.
Lisek notes that litigation is costly and time-consuming for any company. NW has the additional burden of showing the absence of discrimination in order to receive federal funding. As a result, Lisek asserts NW supervisors distributed harsher discipline to whites in order to preserve their jobs and to be considered for promotions. I find no evidence, either direct or indirect, to support these highly speculative allegations.
ATTORNEYS' FEES AND COSTS
Under 42 U.S.C. § 2000e-5(k), a court may, in its discretion, "allow the prevailing party . . . a reasonable attorney's fee (including expert fees) as part of the costs." NW has requested attorneys' fees and costs and, as a prevailing defendant, NW is permitted to petition for same subject to the requirements of Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978).
NW will have fourteen days from the entry of judgment to file its petition in accordance with Fed. R. Civ. P. 54(d)(2) and Local General Rule 46.
In summary, I do not find that NW's disciplinary action was most likely motivated by a discriminatory reason or that NW's proffered explanations are unworthy of credence. I, therefore, hold Lisek has not satisfied his burden by persuading me that the legitimate, nondiscriminatory reasons for dismissing him as articulated by NW were a pretext for racial discrimination.
IT IS SO ORDERED.
DATED this 28th day of February, 1996.
James M. Burns
United States Senior District Judge