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January 16, 2003


The opinion of the court was delivered by: Joan Humphrey Lefkow, United States District Judge.


Plaintiff Jacob Apelbaum ("Apelbaum") alleges that defendant Northeast Illinois Railroad Corporation a/k/a Metra ("Metra") is liable for national origin discrimination (Count I), religious discrimination (Count II) and retaliation (Count III) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Further, although not alleged under separate counts, Apelbaum claims national origin and religious discrimination based on a hostile work environment in violation of Title VII (Counts I and II); a claim under 42 U.S.C. § 1983 (Count TV) for deprivation of his constitutional right to equal protection of the laws guaranteed by the Fourteenth Amendment; claims under Illinois law relating to his termination from employment (Counts V and VI); and a claim for conversion of personal property under Illinois law (Count VII). Before the court is Metra's motion for summary judgment on the seven-count Second Amended Complaint. Jurisdiction is proper pursuant to 42 U.S.C. § 2000e-5 (f)(5), 28 U.S.C. § 1343 (a)(4) and 1367. For the reasons set forth below, the motion is granted.


Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed.R.Civ.P. 56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the nonmoving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the nonmoving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).


Apelbaum was born in Poland but moved to Israel when he was young and became a naturalized citizen there. He is of the Jewish faith. In the late 1980s, Apelbaum moved to the United States. Prior to March 27, 1996, Apelbaum was employed by Engineer's International, a company that worked at the Ogilvie Transportation Center ("OTC Project") in downtown Chicago. Initially, he monitored the construction work done by the various contractors on that project. (Apelbaum Dep. at 481.)

Metra is a public corporation created under the Regional Transportation Authority Act, 70 ILCS 36.15/1.01 et seq., to operate passenger trains in northeast Illinois. During the 1990s, it partially funded and managed the OTC Project. At some unspecified point, Apelbaum met Tim Rhoades ("Rhoades"), who was Metra's Assistant Department Head of Operation Project Performance in the General Development Department (the "Grant Department"). One of the Grant Department's main responsibilities was to assure that the various funding agencies' policies and procedures are followed in the receipt and management of grant funds.

Rhoades noticed that Apelbaum used a software program that Apelbaum called "Construction Manager." Rhoades wanted to hire Apelbaum to develop a derivative product of this software for Metra's use. (Apelbaum Dep. at 483-84, 521; Rhoades Dep. at 32.) On March 27, 1996, Metra posted a Program Manager III position and Apelbaum applied for it. (Def. L.R. 56.1 ¶ 21.) Apelbaum was hired and began working in June 1996. (Def. L.R. 56.1 ¶ 26)*fn1 In April 1997, Rhoades discovered that Apelbaum was not progressing on the software development project. (Def. L.R. 56.1 ¶ 40.) Rhoades had Apelbaum stop such programming work and assigned him to concentrate on financial status reports. (Def. L.R. 56.1 ¶ 41.) Rhoades then had the computer equipment that Apelbaum used for the programming work confiscated and moved to what Metra believed was a secure storage area. (Def. L.R. 56.1 ¶ 43; Wojtkiewicz Dep. at 37, 71.) Eventually, Metra returned some of the computer equipment to Apelbaum. Apelbaum, however, noticed that the computer equipment, which included memory chips and a hard drive, had been vandalized.

A. Apelbaum's complaints at Metra

On October 18, 1999, Apelbaum filed an internal EEO complaint with Metra. (Def. L.R. 56.1 ¶ 71.) In his internal EEO complaint, Apelbaum alleged that his work had been attacked and destroyed and his computer equipment vandalized. He also alleged that he received a voice mail in which the caller stated, "Hey you fuckin' Jew, do you want to die?"

1. the destroyed computer work and vandalized computer equipment

Upon receiving Apelbaum's complaint, Metra police conducted an investigation in which it was determined that the computer equipment had been vandalized while it was in storage, but it is unclear whether Metra identified who was responsible. (Def. L.R. 56.1 ¶ 49.) Apelbaum now asserts that some of the confiscated software and computer equipment were his property. Metra personnel, however, who removed the computer equipment believed that it was Metra's property although some of the computer equipment did not have Metra's identification labels on it. (Wojtkiewicz Dep. at 15, 18-21.) According to Metra, Apelbaum never told the Metra employees that any of the software or equipment belonged to him. (Id. at 18-19; Rhoades Dep. at 135.) Apelbaum disputes this fact but attests only that his supervisors were aware that he assembled the equipment and made repairs at his own expense, thus not refuting that he did not tell Metra that the property belonged to him or otherwise stating their source of knowledge. (Apelbaum Aff. ¶¶ 34-35.)

2. the voice mail

Although Apelbaum testified that he did not know when he received the voice mail, he had earlier responded to Metra's interrogatories that he received it on or about November 25, 1998. (Apelbaum Dep. at 346-47.) Apelbaum played the voice mail to a fellow Metra employee, Jack Groner ("Groner"). (Def. L.R. 56.1 ¶ 86.) Groner told Apelbaum he should report the voice mail to the Metra police, but Apelbaum did not do so until he filed the EEO complaint in October 1999. (Def. L.R. 56.1 ¶ 87.)

Apelbaum contended that the caller was a particular Information Systems ("IS") department employee. (Def. L.R. 56.1 ¶ 90.) After receiving the report, Metra employed a private firm to conduct a voice analysis of that employee and compared it to the voice in the voice mail. (Def. L.R. 56.1 ¶ 92.) The voice analyst reported to Metra that the voice mail did not match the voice of the accused IS department employee. (Def. L.R. 56.1 ¶ 93.) Further, Metra believed the voice mail had actually been left on Apelbaum's phone on September 30, 1996. (Def. L.R. 56.1 ¶ 94; Def. Reply Ex. A, Proper Dep.) Apelbaum could not explain the delay between the voice mail being left on his phone and his not "finding" it two years later until November 25, 1998 other than that he possibly did not check his voice mail. (Def. L.R. 56.1 ¶ 95.)

3. other harassment

Apelbaum also claims that Metra employees subjected him to other conduct he considered to be harassment including:

• Apelbaum received a birthday card referring to him as "Yassir, Fidel, Moamar and Sadam." (Pl. L.R. 56.1 ¶ 7, Ex. 2.) Apelbaum attaches a copy of a birthday card with cartoonish cats holding up a large cake with the words "Happy Birthday." One of the written comments in the card is "Yassir Happy Birthday Fidel Moamar Sadam[.]" Apelbaum, however, does not proffer when he received it, whom he believes wrote the comment, and whether he complained about this card to his supervisors or to the Metra EEO department.
• On eleven occasions starting in January, 1998 through January, 2000, Apelbaum's computer equipment was sabotaged, vandalized or destroyed. (Def. Ex. G at 6-7.)*fn2 Apelbaum claims his supervisors "knew" about these incidents although he does not indicate that he complained to them or anyone else at Metra. (Id.)
• Apelbaum believed that a co-worker screamed "white nigger" at him in a parking lot. (Def. L.R. 56.1 ¶ 99.) Apelbaum does not recall when this happened but responds to interrogatories that it occurred in 1998. (Apelbaum Dep. at 362-63; 372-73; Def. Ex. G at 5.) Apelbaum believes he spoke with his Metra supervisor Gerald Hoff ("Hoff") about the incident and that it was very clear that Hoff would handle any problems inside the department. (Apelbaum Dep. at 362-63; 372-73.) Apelbaum, however, claims in his response to interrogatories that his supervisors and Countess Cary ("Cary"), the Director of Metra's EEO department, knew about this incident although he does not indicate when they learned about it. (Def. Ex. G at 5.)
• A co-worker called Apelbaum "unibomber" but Apelbaum does not remember when this occurred although he responds to his interrogatories that it occurred in 1998. (Def. L.R. 56.1 ¶ 100; Def. Ex. G at 5.) Apelbaum is unsure whether the co-worker called him that name or that she was saying the IS Department employees referred to him by that name. (Apelbaum Dep. at 350-53.) Apelbaum claims that his supervisors and Cary knew about this incident although he does not indicate when they learned about it. (Def. Ex. G at 5.)
• Metra Police Chief Leonard used the term "fucking Jew" when referring to the voice mail. (Leonard Dep. at 176, 204.) Leonard apparently used this term to explain what people are called by their ethnicity. (Def. L.R. 56.1 ¶ 101; Apelbaum Dep. at 390-92.) According to Apelbaum, Leonard also used the term "dumb Poles." (Apelbaum Aff. ¶ 88.) Further, in the same conversation, Leonard used the example that he was of German descent and, therefore, he had previously been referred to as "kraut." (Leonard Dep. at 176.) This incident occurred on November 8, 1999. (Def. Ex. G at 5.) Apelbaum claims that Cary knew about this incident but does not indicate when she learned about it. (Id.)
• Rhoades and Hoff called Apelbaum a doofus and idiot. (Def. L.R. 56.1 ¶ 102; Apelbaum Dep. at 253, 346, 391.) In his response to interrogatories, Apelbaum provides only one instance where he was called an idiot, which was on August 20, 1999. (Def. Ex. G at 5.) He testified at his deposition that Hoff called him an idiot several times and Rhoades called him a doofus, although he cannot remember when. (Apelbaum Dep. at 253-54.) Apelbaum claims that Groner knew about the "idiot" incident although he does not indicate when he learned about it. (Id.)
• Some unknown person urinated on Apelbaum's books, which Apelbaum testifies occurred near the end of his employment. (Apelbaum Dep. at 526-29.) Apelbaum now attests the incident occurred in December 1999, although his response to interrogatories states it occurred during the week of January 10, 2000. (Compare Apelbaum Aff. 90 with Def. Ex. G at 5.) Apelbaum may have informed Rhoades and Groner of this incident. (Apelbaum Dep. at 528.)
• On January 13, 2000, Apelbaum was outside of the office of the associate deputy director, Richard Tidwell ("Tidwell") and believed Hoff, Rhoades' supervisor, was in there. Apelbaum overheard the term "kike" being used and attributed it to either Tidwell or Hoff. (Apelbaum Dep. at 228-32, 642.)
At all relevant ...

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