Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 3417--David H. Coar, Judge.
Before Flaum, Chief Judge, Bauer and Rovner, Circuit
The opinion of the court was delivered by: Bauer, Circuit Judge
Plaintiff Glenn E. Jones sued Union Pacific Railroad Company for violations of 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981, after he was dismissed from his position for gross insubordination follow ing an incident at the rail yard where he worked. Jones moved for summary judgment and Union Pacific responded. The district court granted summary judgment in favor of Union Pacific. Jones appeals, arguing the district court erred procedurally in granting summary judgment sua sponte without giving him notice and an opportunity to respond; and that summary judgment should not have been granted in favor of Union Pacific because disputed issues of material fact remain. We affirm, finding Jones has waived review of two of his three claims and that the district court properly granted summary judgment on the remaining claim.
Glenn E. Jones, a black male, was employed by the Union Pacific Railroad. (Originally, Jones was employed by the Chicago North Western Transportation Company. The two companies merged in 1995.) From 1980 until 1998, Jones was a "coach cleaner", and after completing an apprenticeship in 1989, he was promoted to "carman". *fn1
On April 28, 1998, Jones was involved in the incident which precipitated this suit. Jones worked a shift from Thursday through Saturday, 8:00 a.m. to 4:30 p.m. On the day in question, he left the shop where he worked at 5:00 p.m. and walked across the rail yard tracks toward an exit. At some point during the more than ten minutes it took for Jones to cross nearly all the tracks in the rail yard, Union Pacific Special Agent Brody observed Jones walking across the tracks. *fn2 (Under Illinois law, railroad police have all the powers, while on railroad property, of a full police officer.)
As Jones was making his way across the yard, Agent Brody, in uniform, approached and stopped him to speak as he crossed the main rail line. Agent Brody asked Jones his reason for being in the yard and asked if he had identification. *fn3 Jones's and Agent Brody's accounts of what transpired after Agent Brody requested to see Jones's identification differ sharply.
According to Jones, when asked for identification he showed his employee identification. Jones responded indignantly, and although Agent Brody did not like his tone of voice, he initially made nothing of it. Jones then proceeded on his way until stopped again, on the sidewalk, by Agent Brody. While on the sidewalk, Jones stated that Agent Brody threatened his job, and asked to see his employee identification once again. Jones yelled for a neighborhood person to call the Chicago Police. (The sidewalk was not railroad property, and Agent Brody possessed no authority or police powers on public property.) The Chicago Police and Agent Brody's supervising officer, Special Agent Finger, arrived a few minutes later. Neither Jones nor Agent Brody were arrested.
Agent Brody tells a very different story. According to Agent Brody, when he approached Jones on the tracks and requested to see his identification, Jones replied in an indignant tone with an expletive ("What is the problem, motherfucker? I am an employee of the railroad."). Jones flashed Agent Brody an I.D., but would not let him examine it, again using derogatory language in the process ("Look you white motherfucker, I have my ID right here."). Because of the potential danger associated with moving trains, Agent Brody suggested they move off the tracks to the sidewalk. Once off the tracks, Jones began yelling at Agent Brody, using more expletives and racial epithets (calling Brody a "white racist hillbilly motherfucker with a gun" and telling Brody he was going to get his "white ass fired").
A crowd of people from the neighborhood began to gather around Jones and Agent Brody. Jones then yelled for someone to call the Chicago Police, stating: "this white hillbilly motherfucker is harassing me". Agent Brody, fearing a physical confrontation between himself and Jones or the crowd, wisely decided to leave the scene. The Chicago Police and Special Agent Finger arrived moments after Agent Brody departed. While talking to Chi cago Police, Jones again referred to Agent Brody in rather strong negative terms ("the motherfucker knows I'm an employee. He's just harassing me"). Special Agent Finger suggested that they return to the rail yard to clear up the issue. Jones asked the Chicago Police if he had "to get in this motherfucker's [Special Agent Finger's] car". The record does not disclose whether Jones returned to the rail yard with Special Agent Finger.
Jones was charged with insubordination and quarreling. An investigation of the incident was conducted by "upper management". None of the individuals involved in the altercation (Agent Brody and Special Agent Finger) were members of the investigation panel, nor did they participate in the decision-making process. Superintendent of Commuter Operations Greg Larson and Director-Mechanical for Commuter Operations Rick Laue made the decision to terminate Jones.
Jones was represented by the Union, given the opportunity to make a statement, and call witnesses to testify on his behalf. Jones called no witnesses, giving only a statement. In that statement, Jones mentioned nothing about the encounter, charge, or investigation being racially motivated. Instead, Jones stated that the officers were patsies used to trump up charges against him because he was involved in "labor activities". Jones said, "I believe this is what this [incident] is about, about my labor activities at Cal Avenue, in the Coach Yard." (emphasis added).
Union Pacific maintains a graduated disciplinary policy, ranging from Level 1 to Level 5. Discipline begins with written reprimands and progresses to suspension and dismissal. Rule 1.6 of the Operating Rules applicable to employees prohibits, among other things, employees from being insubordinate to a supervisor and quarrelsome or discourteous to a fellow employee. A violation of Rule 1.6 is considered a Level 5 infraction, resulting in dismissal. According to Union Pacific, the policy does not ...