United States District Court, Central District of Illinois, DanvilleUrbana Division
June 24, 2002
VERNON D. WIMBERLY, PLAINTIFF,
ILLINOIS CENTRAL RAILROAD, DEFENDANT.
The opinion of the court was delivered by: Michael P. McCUSKEY, U.S. District Judge.
On August 21, 2001, Plaintiff, Vernon D. Wimberly, filed his Complaint
(#3) against Defendant, Illinois Central Railroad. Plaintiff alleged
that Defendant violated Title VII of the Civil Rights Act of 1964
(42 U.S.C. § 2000e et seq.) by discriminating against him on the basis
of his race. On January 24, 2002, Defendant filed a Motion for Summary
Judgment (#9) with supporting documentation and a Memorandum of Law in
Support (#10). On April 2, 2002, Plaintiff filed his own Motion for
Summary Judgment (#13) with a statement of facts entitled "Introduction."
On April 26, 2002, Defendant filed a Motion to Strike and Response to
Plaintiff's Motion for Summary Judgment (#14). Following this court's
careful review of the documents submitted by Defendant and the arguments
of the parties, Defendant's Motion to Strike (#14) is DENIED, Defendant's
Motion for Summary Judgment (#9) is GRANTED, and Plaintiff's Motion for
Summary Judgment (#13) is DENIED.
The following facts are taken from Defendant's Statement of Undisputed
Material Facts. In the fall of 1998, Plaintiff applied for a position
with Defendant as Locomotive Engineer and was accepted into the training
program effective January 11, 1999. There were eight locomotive engineer
trainees in Plaintiff's class. Seven of the trainees were white, and
Plaintiff was the only black locomotive engineer trainee in the class.
Defendant is a railroad subject to the provisions of the Federal
Railroad Administration (FRA). Part 240.209(a) of the FRA Regulations
provides: "Prior to initially certifying . . . any person as an engineer
. . . [a railroad] shall determine that the person has . . . demonstrated
sufficient knowledge of the railroad's rules and practices for the safe
operation of trains." Part 240.209(i) of the FRA Regulations further
states that an applicant for an engineering position must exhibit "his or
her knowledge by achieving a passing grade in testing that complies with
On the first day of training, the locomotive engineer trainees,
including Plaintiff, were informed that they would be given two chances
to pass the required knowledge examination. Following four days of
classroom instruction, a written exam was administered to all eight
locomotive engineer trainees. Six of the eight trainees scored 90% or
better on the exam and passed the exam. Plaintiff and Charles Poling did
not score 90% or better. Plaintiff received a score of 70.5% and Poling
received a score of 89.4%. Both Plaintiff and Poling were advised that
they would be given one month to study before taking a second and final
test. On February 23, 1999, the exam was administered again. Poling
passed the test with a score of 97.1%. Plaintiff failed the test with a
score of 85.9%, which was not a passing score. Plaintiff was the only
individual who failed to pass the knowledge exam on either try.
Plaintiff was removed from the training program after he failed to pass
the required knowledge exam on February 23, 1999. He was given a Notice
of Pending Denial of Certification, which he and his supervisor signed.
Plaintiff was given ten days to explain or rebut, in writing, the adverse
information prior to denial of certification. He did not do so, and his
was terminated because he failed to pass the required knowledge
Plaintiff does not dispute any of these facts. However, in his
"Introduction" attached to his Motion for Summary Judgment, Plaintiff
stated that, at the time he applied for the locomotive engineer
position, he was employed with Florida Central Railroad as an
Engineer/Conductor. He stated that he was "fully aware of all FRA, AAR,
and DOT rules and regulations." He stated that he was not told prior to
the first day of training that "if anyone failed the second test they
would be discharge[d]." He stated that if he had been "given that
pertinent information," it would have allowed him "to make a logical
decision, base[d] on Company policies and procedures." Plaintiff stated
that "[p]rior to employment every Loco-Engineer new hire should
be aware of all the rules in [regards] to the job, especially when you
are resigning one job" and moving to another job more than 1500 miles
I. MOTION TO STRIKE
Defendant argues that Plaintiff's Motion for Summary Judgment should be
stricken as it is unsupported by any affidavits, deposition testimony or
other admissible evidence. However, this court notes that the Local
Rules of the Central District of Illinois specifically provide that Local
Rule 7.1(D), which sets out the requirements for a motion for summary
judgment, "does not apply to pro se litigants." Accordingly, Defendant's
Motion to Strike (#14) is DENIED, and this court will consider the
arguments and factual statements included in Plaintiff's Motion for
Summary Judgment (#13).
II. MOTIONS FOR SUMMARY JUDGMENT
A. SUMMARY JUDGMENT STANDARD
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); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). In ruling on a motion for summary
judgment, a district court has one task and one task only: to decide,
based upon the evidence of record, whether there is any material dispute
of fact that requires a trial. Waldridge v. American Hoechst Corp.,
24 F.3d 918, 920 (7th Cir. 1994). In making this determination, the
court must consider the evidence in the light most favorable to the party
opposing summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59 (1970). However, neither the mere existence of some alleged
factual dispute between the parties nor the existence of some
metaphysical doubt as to the material facts is sufficient to defeat a
motion for summary judgment. Debs v. Northeastern Ill. Univ.,
153 F.3d 390, 394 (7th Cir. 1998). To survive summary judgment, the
plaintiff must make a showing sufficient to establish any essential
element for which he will bear the burden of proof at trial. Celotex
Corp., 477 U.S. at 322-23; see also Shank v. William R. Hague, Inc.,
192 F.3d 675, 681 (7th Cir. 1999).
This court further notes that the Seventh Circuit has instructed that
pro se litigants are entitled to notice of the consequences of failing to
respond to a summary judgment motion, and that they should also be
advised that any factual assertion
in the movant's papers would be taken
as true unless contradicted through counter-affidavits or other
documentary evidence. See Timms v. Frank, 953 F.2d 281
, 285 (7th Cir.
1992). In this case, Plaintiff received a notice regarding the
consequences of failing to respond to Defendant's Motion for Summary
Judgment (#11). However, this notice did not include a specific
statement that any factual assertions in the Motion for Summary Judgment
would be taken as true unless contradicted through counter-affidavits or
other documentary evidence. In any case, Plaintiff did file his own
Motion for Summary Judgment, presumably in response to Defendant's Motion
for Summary Judgment, and this court notes that its decision on the
motions for summary judgment is not the result of any failing on
Plaintiff's part to present documentary evidence. See Wheeler v. Illinois
Inst. of Tech., 1999 WL 965240, at *2 n. 2 (N.D.Ill. 1999).
B. PLAINTIFF'S TITLE VII CLAIM
Under Title VII, it is "an unlawful employment practice for an employer
. . . to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of
such individual's . . . race." 42 U.S.C. § 2000e-2(a)(1). However,
contrary to the belief of many disgruntled plaintiffs, "[n]ot every
adverse employment decision gives rise to a federal discrimination
claim." See Schmidt v. Runyon, 20 F. Supp.2d 1246, 1247 (C.D.Ill.
Disparate treatment, in violation of Title VII, "occurs when a
plaintiff is intentionally treated less favorably than others simply
because of his race, color, religion, sex or national origin." Vitug v.
Multistate Tax Comm'n, 88 F.3d 506, 513 (7th Cir. 1996). Accordingly,
proof of intentional discrimination is required to prevail under a
disparate treatment analysis. Gonzalez v. Ingersoll Milling Mach. Co.,
133 F.3d 1025, 1031 (7th Cir. 1998). The plaintiff bears the ultimate
burden of demonstrating an impermissible motive or intent. Vakharia v.
Swedish Covenant Hosp., 190 F.3d 799, 807 (7th Cir. 1999), cert denied,
530 U.S. 1204 (2000).
A claim of employment discrimination can be proved by showing direct or
indirect evidence of discrimination. Vakharia, 190 F.3d at 806. A
plaintiff relying on indirect evidence proceeds under the burden-shifting
method set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Vakharia, 190 F.3d at 806. Plaintiff has not stated that he has any
direct evidence of discrimination on the basis of race and, therefore,
must proceed using the McDonnell Douglas burden-shifting method to prove
his claim of discrimination. Under this method, the plaintiff must first
establish a prima facie case of discrimination. Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 617 (7th Cir. 2000). To establish a prima facie
case of racial discrimination, Plaintiff must show that: (1) he was a
member of a protected class; (2) he applied for and was qualified for an
open position; (3) he was rejected for the position; and (4) the position
was filled with a person not in the protected class or remained open.
Gorence v. Eagle Food Centers, Inc., 242 F.3d 759, 764-65 (7th Cir.
Defendant argues that Plaintiff cannot make out a prima facie case of
discrimination because he cannot show that he was qualified for the
position of locomotive engineer. This court agrees with Defendant that it
is undisputed that Plaintiff failed to pass the required knowledge exam.
It is also undisputed that the other seven trainees in Plaintiff's class
did pass the knowledge exam. Plaintiff argues,
however, that he should
have been advised, prior to the time he came to Illinois for training,
that anyone who did not pass the second test would be discharged. This
court concludes that this argument simply does not help Plaintiff meet
his burden to establish a prima facie case of discrimination on the basis
of race.*fn1 Defendant notes that Plaintiff has acknowledged that he was
"fully aware of all FRA, AAR, and DOT rules, and regulations." Defendant
argues that Plaintiff cannot then maintain that he was not aware that an
applicant for an engineer position must achieve a passing grade on the
knowledge examination. Further, Defendant notes that Plaintiff admitted
that he learned on the first day of training that he would be discharged
if he failed both the first and second test.
In this case, Plaintiff did not pass the required knowledge exam and
cannot show that he was qualified for the locomotive engineer position.
Accordingly, this court agrees with Defendant that Plaintiff cannot meet
his burden to establish a prima facie case of race discrimination.
Therefore, this court concludes that Defendant's Motion for Summary
Judgment must be granted and that Plaintiff's Motion for Summary Judgment
must be denied.
IT IS THEREFORE ORDERED THAT:
(1) Defendant's Motion to Strike (#14) is DENIED.
(2) Defendant's Motion for Summary Judgment (#9) is GRANTED.
(3) Plaintiff's Motion for Summary Judgment (#13) is DENIED.
(4) Judgment is entered in favor of Defendant and against Plaintiff.
This case is terminated.