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JOHNSON v. AMTRAK

October 21, 1998

THEODORE A. JOHNSON, Plaintiff
v.
NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK), Defendant.



The opinion of the court was delivered by: BUCKLO

MEMORANDUM OPINION AND ORDER

 The plaintiff, Theodore A. Johnson, acting pro se, filed suit against the defendant, National Railroad Passenger Corporation ("Amtrak"), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Mr. Johnson claims he was fired because of his race, African-American, and because of his gender. Amtrak moves for summary judgment pursuant to Fed. R. Civ. P. 56. For the following reasons, the motion is granted.

 Background

 Mr. Johnson was hired by Amtrak as a laborer in 1989, and in 1992 he became a supervisor on the third shift (11 p.m. to 7 a.m.). His job was to supervise employees who cleaned train cars after the trains had completed their runs. (Johnson Dep. at 38-43.) In August 1993, one of the employees he supervised, Kim Nguyen, complained that Mr. Johnson was harassing her. She said he repeatedly asked her out on dates despite her requests to the contrary. In addition, she said he touched her inappropriately and retaliated against her for refusing his advances. Ms. Nguyen also said Mr. Johnson threatened to hit her with a flashlight and used racially derogatory language toward her and a coworker. (Johnson Dep. at 43-44; Wood Aff. P 2.)

 Several of Ms. Nguyen's allegations stem from an incident she alleges occurred early in the morning of August 23, 1993. (DeMotses Aff. Ex. 1 at 2-5.) Ms. Nguyen claims Mr. Johnson became angry at her and a coworker, Mike Martin, after they tried to contact Mr. Johnson by radio to clarify Ms. Nguyen's work assignment. Id. at 2. According to Ms. Nguyen and other witnesses who testified at an Amtrak hearing, *fn1" Mr. Johnson entered the coach car where Ms. Nguyen and Mr. Martin were working, and began speaking abusively to them. Id. at 2-4. Mr. Johnson allegedly swung a flashlight repeatedly and at one point struck the end of Ms. Nguyen's nose with it. Id. at 2. He also allegedly shoved Ms. Nguyen, called her a "big mouth" and a "troublemaker," and threatened to make her life miserable. Id. at 2-3.

 Mr. Johnson denies Ms. Nguyen's allegations. (12(N) P 6; DeMotses Aff. Ex. 1 at 5.) In his testimony at the Amtrak hearing, he gave a different account of the August 23 incident, alleging that it was Ms. Nguyen who spoke abusively to him. Mr. Johnson said Ms. Nguyen at one point put her hands on him and turned him around, shouting that he had no right to talk to Mr. Martin. (DeMotses Aff. Ex. 1 at 5.) Daniel Collins, who testified on Mr. Johnson's behalf at the Amtrak hearing, gave essentially the same account of the August 23 incident. Id. at 4. Mr. Collins also testified that he had worked for Mr. Johnson at a cleaning business Mr. Johnson had run outside his Amtrak employment. (DeMotses Aff. Ex. 1 at 4; 12(M) P 22.)

 On August 27, 1993, John Wood, an Amtrak facility manager, met with Mr. Johnson, Ms. Nguyen, a union representative and other employees to discuss the allegations against Mr. Johnson. (Johnson Dep. at 47; Wood Aff. P 4.) At that meeting, Mr. Johnson had an opportunity to hear the witnesses against him and to explain his side of the story. (Johnson Dep. at 50; 12(N) P 9.) At the conclusion of the meeting, Mr. Johnson was transferred to the first shift. (Johnson Dep. at 49-51.)

 The two sides dispute the outcome of the meeting. According to Mr. Johnson, Mr. Wood concluded there was insufficient evidence to warrant further investigation, *fn2" and said no discipline would be imposed on Mr. Johnson. *fn3" (12(N) P 8.) Amtrak maintains, however, that Mr. Wood believed the allegations did warrant further investigation. (Wood Aff. P 5.)

 Mr. Wood referred the allegations to Charles Hull, *fn4" an Amtrak charging officer, for further investigation. *fn5" (Wood Aff. P 5.) In September 1993, Mr. Johnson received a notice from Amtrak informing him he was being investigated for violation of three of Amtrak's Rules of Conduct: Rules E, F(1) and F(2). *fn6" (Johnson Dep. at 54-55.) On October 25, 1993, a hearing was held where evidence was presented by both sides and where Mr. Johnson had a full opportunity to present his version of events. (Johnson Dep. at 56, 63; Hull Aff. P 7; DeMotses Aff. P 2.) Carl DeMotses, *fn7" who presided over the hearing, found that Mr. Johnson had violated Rules F(1) and F(2), but not Rule E. (DeMotses Aff. P 5, Ex. 1.) Mr. DeMotses said he made his decision based on all the evidence presented at the hearing, including his assessment of witnesses' credibility. Id. P 4.

 Mr. DeMotses forwarded his decision to John Pearson, an Amtrak superintendent, who decided Mr. Johnson should be dismissed. (DeMotses Aff. P 6, Ex. 1 at 6; Pearson Aff. P 4.) Mr. Johnson was terminated on November 9, 1993. (Johnson Dep. at 58; DeMotses Aff. Ex. 1 at 6.) However, he was later rehired after his union filed a grievance that went to arbitration. (12(M) P 33; Johnson Dep. at 62.) The arbitrator found that it was procedurally inappropriate for Amtrak to have disciplined Mr. Johnson subsequent to the August 27 meeting (with Mr. Wood), and ordered Mr. Johnson reinstated. (Johnson Dep. at 62-64.) The arbitrator made no determination on the merits of whether Mr. Johnson violated the Amtrak Rules of Conduct. Further, there was no discussion at the arbitration of the misconduct charges underlying Mr. DeMotses' decision. (12(M) P 33; Johnson Dep. at 62-64.)

 Motion for Summary Judgment

 Under Federal Rule of Civil Procedure 56, summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In other words, summary judgment must be granted "if no rational jury could, on the evidence presented in the summary judgment proceeding, find for the party opposing summary judgment." Mills v. First Fed. Sav. & Loan Ass'n, 83 F.3d 833, 846 (7th Cir. 1996). The evidence relied upon by either party must be "of a type otherwise admissible at trial." Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). In addition, the evidence is to be construed in the light most favorable to the nonmoving party, and "all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Further, the party who bears the burden of proof on an issue may not rest on "the mere allegations or denials of the adverse party's pleading," but must set forth specific facts showing there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 Race Discrimination

 Mr. Johnson argues that Amtrak, in firing him, discriminated against him because of his race. Mr. Johnson does not present any direct evidence of discrimination; therefore, he must use the indirect, burden-shifting method outlined in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). Under that method, Mr. Johnson must first establish, by a preponderance of the evidence, a prima facie case of racial discrimination. Id. at 506. He must show that (1) he is African-American, (2) he performed his job satisfactorily, (3) he was fired, and (4) Amtrak treated other, similarly situated non-African-American employees more favorably. Id.; Oates v. Discovery Zone, 116 F.3d 1161, 1171 (7th Cir. 1997); Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997). If Mr. Johnson makes out a prima facie case, a presumption of discrimination arises, and the burden of production shifts to Amtrak, which must show a "legitimate, ...


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