United States District Court, N.D. Illinois
March 10, 2004.
WILLIE MORRIS, Plaintiff,
CHICAGO TRANSIT AUTHORITY, Defendant
The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM. OPINION AND ORDER
This case is before the Court on the motion of the Defendant Chicago
Transit Authority ("CTA") for summary judgment pursuant to Fed.R.Civ.P.
56. For the following reasons, the motion is granted.
Plaintiff Willie Morris is African-American and was hired by the CTA on
March 3, 1983 as a bus mechanic. While he was employed at the CTA,
Plaintiff was a member of the bus mechanics union, Local 701.
hi late 1997, at Plaintiff's request, he was trained to repair
transmissions. Experienced mechanic Mike Calkin trained Plaintiff and, in
Plaintiffs words, "he trained me very well, you know, he did train me
well." Plaintiff repaired transmissions until his discharge on June 8,
Pursuant to the Collective Bargaining Agreement between Local 701 and
the CTA, Local 701 mechanics received vacation time in an amount based
upon their seniority. Annually, in the spring, Local 701 employees pick
full weeks of vacation in seniority order for the fiscal year June 1 to
May 31. Such selection system allowed the company to control the number
employees during any one week.
In addition to vacations in full week increments, employees had ten
additional vacation days that they could use randomly depending upon
manpower availability. LOCAL 701 mechanics also had four "floating"
holidays per year that they could use depending upon manpower
availability. Thus, on any given day, before the work day begins, an
employee could request to use a "random vacation day" or a floating
holiday. If there were not too many employees off on that particular
day, they would be granted the day off. The Foreman makes the decision to
grant requests for random vacation days and floating holidays.
On July 1, 2, 3, 5 and 15, 1996 Plaintiff was absent from work. On July
1, 2, 5 and 15, 1996, plaintiff called his work location each day after
the work day began and requested a random vacation day for the reasons of
out-of-town company, spouse's illness and vehicle emissions problems.
Each request was denied because of manpower availability. Thus, Plaintiff
was charged with unexcused absences on July 1, 2, 5 and 15, 1996.
Furthermore, on July 3, 1996, Plaintiff was AWOL because he was scheduled
to work, he did not come to work, and he did not call the work location
to advise them that he would not be coming to work.
The CTA has various written rules that employees must follow, including
rules in its General Rule Book. The CTA uses a progressive discipline
system whereby successive similar violations over a fixed time period
result in progressively more severe discipline. Under the CTA's
Corrective Action Guidelines in effect in 1996, an employee who is AWOL
could be issued a Final Written Warning and a Corrective Case Interview
or Discharge for the first incident within a twelve-month period. For the
second incident within a twelve-month period, an employee who was not
discharged would be referred to the General Manager with a
Recommendation for Discharge. Under the Corrective Action Guidelines,
employees who miss work are subject to the following progressive
discipline over any twelve-month period: (1) first incident; written
warning; (2) second incident; written warning; (3) third incident; final
written warning and corrective case interview; (4) forth incident;
corrective case interview or discharge; and (5) fifth incident; referral to
the General Manager with a Recommendation for Discharge.
On July 16, 1996, when Plaintiff returned to work after his unexcused
absence on July 15, 1996, he was removed from service and referred to his
Manager, Michael O'Connor. On July 18, 1996 Manager O'Connor interviewed
Plaintiff and found that said absences violated certain CTA rules. Mr.
O'Connor prepared a Record of Interview, a Recommendation for Discharge
to General Manager Dennis Milicevic and a memorandum to file.
The recommendation along with supporting documentation was sent to a
section of CTA's personnel department called Human Resources, Program
Compliance, which reviewed the recommendation for conformance with CTA
rules and union rules and for uniformity with prior recommendations for
discharge. Human Resources, Program Compliance approved of the
recommendation for discharge as to conformity with rules and uniformity.
Human Resources, Program Compliance, issued a written, unsigned Notice of
Discharge for Plaintiff and sent it back to the General Manager, Dennis
Milicevic. Mr. Milicevic was required to interview Plaintiff before
deciding on whether to implement the discharge, issue some other
discipline, or not issue any discipline at all.
On August 2, 1996, Dennis Milicevic interviewed Plaintiff with regard
to the recommendation that he be discharged because of his attendance
problems. Mr. Milicevic reviewed Plaintiff's prior twelve-month work
record which showed that from September 19-25,
1995, he was AWOL and on March 19, 1996, he was charged with a failure to
report for duly. At the interview, Plaintiff was represented by Local
701, business agent Boysen Andersen. Mr. Milicevic felt that Plaintiffs
thirteen years of service to the CTA mitigated against discharging
Plaintiff. Thus, the parties agreed to a one-year probation during which
any incident of A WOL or unexcused absence by Plaintiff would result in
his immediate discharge. Also, Plaintiff agreed to enroll in the Employee
Assistance Program (for counseling to handle personal problems which gave
rise to the absences), and he was advised of his Family Medical Leave Act
(FMLA) rights as to his sick spouse.
On July 15, 16 and 18, 1997, Plaintiff called the shop and was granted
permission to have a random vacation day on each day. On July 21, 22 and
23 1997, Plaintiff was scheduled to work, did not call to request time
off and thus was AWOL. On July 24, 1997, Plaintiff called at 9:30 a.m.,
spoke to his foreman Joe Garner, did not come to work or request the time
off and thus incurred an unexcused absence.
On July 25, 1997, Plaintiff returned to work and was interviewed by his
Manager, Stephanie Martin in the presence of Union Steward, Harvey
Syzmanski. Ms. Martin is African-American, and during the relevant time
period, she had supervisory responsibility over foreman Joe Gamer and his
subordinates, including Plaintiff.
On or before the July 25, 1997, interview with Plaintiff, Ms. Martin
reviewed Plaintiff's work record and saw that Plaintiff was in violation
of his August 2, 1996 probation. At the interview, Plaintiff was given an
opportunity to explain his absences and asked to explain why he should
not be charged with AWOL for July 21, 22 and 23, 1997 and an unexcused
absence on July 24, 1997. Plaintiff failed to provide a valid excuse for
his absences. Ms. Martin found
Plaintiff to be in violation of his probation and prepared a
Recommendation for Discharge to the General Manager.
The Recommendation for Discharge was sent to the CTA's Human Resources
Program Compliance which approved of the recommendation. Human Resources
Program Compliance prepared an unsigned Notice of Discharge and sent it
to General Manager Milicevic.
A discharge interview was scheduled for August 11, 1997. At that time,
an interview took place with Plaintiff, General Manager Dennis Milicevic,
Union Steward Major Warren and Manager Martin. Plaintiff asked to
continue the interview to obtain representation from Local 701 Business
Agent, Boysen Andersen.
On August 25, 1997, General Manager Dennis Milicevic met with Plaintiff
and his Local 701 Business Agent, Boysen Andersen. Plaintiff and Mr.
Andersen asked for leniency and one last chance. Mr. Milicevic decided to
give Plaintiff one last chance and, in lieu of discharge, placed
Plaintiff on his second and final twelve-month probation which was to run
from August 27, 1997, to August 25, 1998, during which Plaintiff could
not incur any AWOL, unexcused absence or attendance violation or else be
subject to immediate discharge.
General Manager Milicevic has held a position at the CTA with authority
to discharge since 1982. In that time he has received over 100
recommendations for discharge. Approximately half of the employees
referred for discharge were placed on a six-month or a one-year
probation, and the other half were discharged. Of those placed on
probation, approximately three-quarters successfully completed the
probation and the other quarter were discharged for violating their
probation. A second probation instead of a discharge was afforded to only
two employees, Plaintiff and another employee whose race was white.
In late 1997, Plaintiff was finishing his training on transmissions. At
the CTA, mechanics are given a certain amount of hours to complete the
repairs on a transmission. On January 23, 1998, Plaintiff was taking too
long to finish his transmissions and he was cited for violating the CTA's
General Rule against poor work performance. Manager Martin interviewed
Plaintiff, found him to be in violation of said CTA rule, and imposed a
discipline of "noted," the lowest level of discipline.
On February 13, 1998, Plaintiff's work production had not improved as
he took ninety-four hours to do a fifty-hour job. Plaintiff was again
interviewed by Manager Martin for his poor work performance and given the
discipline of a second noted. Plaintiff requested to meet with General
Manager Dennis Milicevic and an appointment was scheduled for February
On February 13, 1998, Plaintiff wrote a four-page letter in which he
made general accusations of unfair treatment and delivered it to Manager
Martin. Ms. Martin passed the written response on to General Manager
Milicevic. On February 16, 1998, Mr. Milicevic sent a memo to Ms. Martin
asking her to investigate the accusations in Plaintiff's letter. On
February 18, 1998, Ms. Martin responded to Plaintiffs accusations in a
memo to Mr. Milicevic, noting that there was no basis for the
On February 20, 1998, Plaintiff was cited for leaving his assigned work
location without permission. Plaintiff was interviewed by Ms. Martin and
given the discipline of a noted. On April 2, 1998, Plaintiff was cited
for exchanging his work assignment without authorization. Plaintiff was
interviewed by Ms. Martin and, again, was given the discipline of a
On Thursday, May 7, 1998, at approximately 8:10 a.m., Plaintiff called
his Foreman Joe Gamer to request the day off because of basement
flooding. Mr. Gamer reviewed Plaintiffs work
record, saw that Plaintiff had used all of his ten random vacation
days and all of his four floating holidays and, thus, all he could have
was an unauthorized day off. Mr. Garner was also aware that Plaintiff was
on probation for his attendance and that the probation had been granted
by the General Manager. Mr. Gamer felt that his authority only extended
to allowing excused vacations based upon an employee's available vacation
and holiday time. If an employee is on probation from the General
Manager, Mr. Garner felt he could not grant any exceptions to the excused
vacation rules, but could inform the employee that they can ask for such
exception from the Manager or General Manager. Foreman Garner then
refused Plaintiff's request.
Plaintiff then spoke to Manager Martin and asked for an "R.D.O."
(requested day off) because he had water in his basement. Manager Martin
told Plaintiff that the foreman makes that call. Plaintiff admitted that
the foreman had refused the R.D.O., and Manager Martin said that she
would support the Foreman.
On May 8, 1998, at approximately 9:15 a.m., Plaintiff called Foreman
Garner, asked how his time was being carried. Mr. Gamer told him he was
being carried as "unauthorized time off." Plaintiff said he was taking
off for flood damage and needed to be carried as an R.D.O. Mr. Garner
told Plaintiff he would not grant an R.D.O., and Plaintiff asked to speak
to Manager Martin.
At approximately 9:20 a.m. on Friday, May 8, 1998, Plaintiff spoke with
Manager Martin. Plaintiff stated he wanted an R.D.O. because he still had
water in his basement. Ms. Martin told Plaintiff again that the Foreman
makes the call.
On Monday, May 11, 1998, at approximately 7:25 a.m., Plaintiff called
Foreman Garner to report that he would not be at work because of
continued problems in his basement. Plaintiff
asked how his time was being carried, and Mr. Garner told him he
was being carried as "unauthorized time off." Plaintiff said he would be
at work on Tuesday.
On Tuesday, May 12, 1998, at approximately 7:20 a.m., Plaintiff called
Mr. Gamer and stated that he would not be coming to work, that he had a
disaster on hand and that he was unsure of his status for the next day.
Thereafter, Mr. Gamer called Ms. Martin and reported Plaintiff's phone
call to her.
On Wednesday, May 13, 1998, at approximately 8:20 a.m., Ms. Martin
called Mr. Garner and asked if Plaintiff had reported to work. Mr. Garner
replied he had not reported to work, and he had not called in. Ms. Martin
told Mr. Garner that if Plaintiff does not call, to carry him as AWOL.
At approximately 10:30 a.m., Plaintiff called to ask if his paycheck
was ready. Plaintiff came to the General Manager's office just before
lunch and picked up his paycheck. Plaintiff did not meet with Ms. Martin
while he was on CTA premises.
On Thursday, May 14, 1998 and Friday, May 15, 1998 at approximately
8:30 a.m., on each day, Ms. Martin had a telephone conversation with Mr.
Garner. On each day, Mr. Gamer told Ms. Martin that Plaintiff had not
come to work. Ms. Martin told Mr. Garner to carry Plaintiff as AWOL.
On Friday May 15, 1998, at approximately 1:50 p.m., Plaintiff called
Mr. Garner and asked to speak to union steward Major Warren. Mr. Garner
told Plaintiff that Mr. Warren was on vacation for three weeks. Plaintiff
again stated that he had told Manager Martin that he had a disaster in
his basement, that he would be to work on Monday and that he would have
On Monday May 18, 1998 at approximately 7:30 a.m., Plaintiff entered
the office area. Ms. Martin told Plaintiff that he was in violation of
his probation and that he needed union representation. Ms. Martin called
Union Steward Harvey Szymanski, When Mr. Szymanski arrived, Ms. Martin
stated that Plaintiff was being removed from service because he was in
violation of his probation and that he was being referred to the General
Manager with a Recommendation for Discharge. The matter was referred to
the General Manager, Dennis Milicevic and an interview was scheduled for
May 26, 1998.
On May 18, 1998, Ms. Martin prepared a written Recommendation for
Discharge, The Recommendation was sent with attachments to CTA's Human
Resources, Program Compliance which approved of the recommendation as to
conformity with CTA rules and uniformity with other CTA disciplinary
matters. Human Resources, Program Compliance prepared a Notice of
Discharge and sent it to Mr. Milicevic.
On May 26, 1998, the interview with General Manager Dennis Milicevic
was continued to June 8, 1998. On June 8, 1998, an interview was
conducted by General Manager Dennis Milicevic concerning the
Recommendation to Discharge Plaintiff. In attendance were Mr. Milicevic,
Manager Stephanie Martin, Manager John Kurtovich, Plaintiff, Local 701
Business Agent Boysen Andersen and Union Steward Harvey Szymanski.
At the interview, Mr. Milicevic explained why Plaintiff was being
recommended for discharge and gave Plaintiff an opportunity to make a
statement. Mr. Milicevic reviewed Plaintiff's work record and considered
his years at the CTA. Mr. Milicevic decided to discharge Plaintiff
because he had given Plaintiff two probations in lieu of discharge, both
of which Plaintiff had violated. Plaintiff acknowledged that he was aware
in May, 1998, that he was on
probation and that any unexcused absence was a ground for dismissal.
Plaintiff admitted that all of the absences from May 7 to May 15 were
unexcused. Plaintiff then was discharged from employment with the CTA.
Plaintiff filed an EEOC Charge of Discrimination on June 17, 1998,
making claims that he was discharged because of his race, age, disability
and in retaliation. Plaintiff then filed suit in this Court alleging that
he was discharged because of his race, age, disability, and retaliation.
Summary judgment will be granted when "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). The court will not render summary
judgment if a reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The mere
possibility of a factual dispute is not enough to defeat a summary
judgment motion. Id. at 250; Waidridge v. American Hoechst Corp.,
24 F.3d 918, 920 (7th Cir. 1994).
I. Legal Standards
Plaintiff may attempt to prove his claim of discrimination in two
ways. He can rely on direct evidence or, in the absence of such
evidence, he can rely on the indirect method outlined in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Cheek v. Peabody
Coal Co., 97 F.3d 200, 203 (7th Cir. 1996).
Under the first method, Plaintiff must initially prove through direct
evidence that the CTA's employment actions were based on impermissible
factors. McCarthy v. Kemper Life Ins.
Cos., 924 F.2d 683, 686 (7" Cir. 1991). To qualify as direct evidence,
the "evidence must not only speak directly to the issue of discriminatory
intent, it must also relate to the specific employment decision in
question." Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569
(7th Cir. 1989). In this case, there is no such direct evidence.
Therefore, Plaintiff cannot prove through direct evidence that the CTA
intentionally discriminated against him.
In the absence of direct evidence of discrimination, Plaintiff may
attempt to meet his burden of proving intentional discrimination by first
establishing a prima facie case that: (1) he was a within a protected
class; (2) his performance met the CTA's legitimate expectations; (3) he
suffered an adverse employment action; and (4) the CTA treated similarly
situated employees not in the protected class more favorably. E.E.O.C.
v. Our Lady of Resurrection Medical Center, 77 F.3d 145, 148-49 (7th
Cir. 1996); Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994).
Establishment of a prima facie case merely raises an inference of
discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 528 (1993);
Hughes, 20 F.3d at 746.
If a plaintiff establishes a prima facie case, the burden shifts to the
employer to articulate a legitimate, non-discriminatory reason for the
challenged personnel action. Hughes, 20 F.3d at 746; McDonnell Douglas
Corp., 411 U.S. at 802. Once the employer states such a reason, the
burden returns to plaintiff to establish that defendant's legitimate
non-discriminatory reasons are a mere pretext for discrimination.
Plaintiff must establish by a preponderance of the evidence that: (1) the
non-discriminatory reasons proffered by the employer are false; and (2)
discrimination was the real reason for the employment action. St. Mary's
Honor Ctr., 509 U.S. at 528.
II. Race Discrimination
A. Plaintiff's Prima Facie Case
In this case, the uncontested evidence shows that Plaintiff cannot
establish the second and fourth prima facie elements-that he was meeting
the CTA's legitimate expectations and that the CTA treated similarly
situated employees who are not African-American more favorably.
1. Plaintiff Was Not Meeting The CTA's Legitimate Performance
Plaintiff was not meeting the CTA's legitimate performance
expectations. His attendance and work quality were poor. Plaintiff was
considered for discharge in August, 1996, because his attendance record
was so poor. In August 2, 1996, in lieu of discharge, General Manager
Dennis Milicevic agreed to place Plaintiff on a twelve-month probation
during which Plaintiff could not incur any incident of AWOL or unexcused
absence without being subject to immediate discharge. On July 21, 22, 23
and 24, 1997, Plaintiff breached the probation agreement, which could
have subjected him to immediate discharge.
A discharge interview was continued to August 25, 1997, at Plaintiffs
request so the union representative of Plaintiffs choice could attend. At
the interview with General Manager Dennis Milicevic, Plaintiff and his
representative asked for leniency and a second chance. General Manager
Milicevic gave Plaintiff a second twelve-month probation that was to run
from August 27, 1997 to August 25, 1998, during which Plaintiff could not
incur any AWOL or unexcused absence.
At that time under the Collective Bargaining Agreement between the CTA
and Plaintiff's union, Plaintiff was entitled to two to five full weeks
of vacation in an amount which increased depending upon seniority at the
CTA. Additionally, Plaintiff had ten random days and four
floating holidays or a total of 14 days to be used randomly as needed
during the year.
Notwithstanding the availability of all of this vacation time for the
year, Plaintiff breached the second probation agreement when he missed
seven consecutive work days from May 7, 1998 to May 15, 1998. Plaintiff
had used up all of his annual 14 days by May 7, 1998. Plaintiff knew in
May, 1998, that he was on probation and that an unexcused absence was a
ground for dismissal. Plaintiff acknowledged that his absences from May
7 to May 15, 1998, were unexcused. As a result, on June 8, 1998,
Plaintiff was discharged for violating his second probation agreement.
Furthermore, the undisputed evidence shows that Plaintiff's work
performance was not meeting the CTA's legitimate expectations when he was
at work. Plaintiff was trained by an experienced mechanic and Plaintiff
admits that he was trained well. Notwithstanding, on January 23, 1998,
plaintiff was cited for poor work performance when he took too long to do
transmission repairs. On February 13, 1998, Plaintiff was again cited for
poor work performance when he needed ninety-four hours to do a fifty hour
transmission repair. On February 20, 1998, plaintiff was cited for
leaving his assigned work location without permission. On April 2, 1998,
plaintiff was cited for exchanging his work assignment without
In summary, Plaintiff's work record was inadequate both as to his
attendance and his work performance. Plaintiff was not meeting the CTA's
legitimate expectations and, as such, Plaintiff cannot establish a prima
facie case of discrimination.
2. Similarly Situated Employees Were Not Treated More Favorably
Another element of Plaintiff's prima facie case which Plaintiff cannot
prove is that the CTA treated similarly situated employees who are not
African-American more favorably. In this
case, there is no evidence of any employee violating two probations
and not being discharged. There is no evidence that any employee was
treated differently than Plaintiff.
Plaintiff claims that his absences from May 7 to May 15, 1998, were of
an emergency nature because he had basement flooding, In his Complaint,
Plaintiff alleges that white employees received emergency time off in
May, 1998, for basement flooding. In his Answers to Interrogatories,
Plaintiff identified ten white employees by name. However, nine of the
ten state in their affidavits submitted in support of this motion for
summary judgment that they have never missed time from work for basement
flooding. The tenth person states that he left work early once in 1986 or
1987. Thus, there is no credible evidence that the CTA treated similarly
situated employees who are not African-American more favorably than
B. The CTA Had A Legitimate Non-Discriminatory Reason For Its Actions
As explained above, Plaintiff was discharged for violating his second
probationary agreement. The record is littered with numerous legitimate
reasons for discharging Plaintiff over a two year period of time.
Plaintiff cannot refute the CTA's legitimate, non-discriminatory
business reasons for its decision to discharge Plaintiff from
employment. See Lacy v. Ameritech Mobile Commun., 965 F. Supp. 1056, 1067
(N.D.Ill. 1997), aff'd, 142 F.3d 440 (7" Cir. 1998), cert. denied,
526 U.S. 1025 (1999). Certainly, the rationale behind the CTA's decision
to discharge an employee who fails to come to work is legitimate. It is a
fundamental rule in the workplace that if an employee is scheduled to
work, the employee should come to work. At some point, an employer must
be permitted to discharge an employee who does not come to work when they
are so scheduled. In this case, Plaintiff failed to come to work so often
that he was placed on
probation in lieu of discharge twice and finally, after the third
year of excessive days of failing to come to work, Plaintiff was
discharged. Plaintiff was given numerous "last' chances.
The CTA has established a legitimate non-discriminatory reason for its
decision to discharge Plaintiff. Plaintiff must show that the CTA's
proffered reason is pre-textual, i.e., that the proffered reason is an
outright lie. Id. at 1067-68. In this case, Plaintiff has made no such
General Manager, Dennis Milicevic was the ultimate decision maker in
Plaintiff's discharge. Mr. Milicevic had the opportunity to discharge
Plaintiff on August 2, 1996. Instead of discharging Plaintiff at that
time, Mr. Milicevic placed Plaintiff on a one-year probation. On August
25, 1997, Mr. Milicevic had a second opportunity to discharge Plaintiff.
Again, instead of discharging Plaintiff, Mr. Milicevic gave Plaintiff a
second chance. Not until the third referral for discharge did Mr.
Milicevic implement the discharge. Thus, the undisputed evidence shows
that the CTA had a legitimate non-discriminatory reason for its discharge
III. Age Discrimination
The McDonnell Douglas burden shifting method for analyzing a claim of
discrimination based on indirect evidence is the same for age as it is
for race. Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1011-12 (7th Cir.
2000). As such, Plaintiff cannot establish two elements of his prima
facie case for age discrimination: (1) that his performance on the job
met the CTA's legitimate expectations; and (2) that the CTA treated
similarly situated employees not in the protected class more favorably.
As mentioned above, the CTA clearly had a legitimate non-discriminatory
basis for discharging Plaintiff. Moreover, Plaintiff has absolutely no
evidence to show that younger employees were treated more favorably.
For these reasons, in addition to the reasons addressed in the race
discrimination analysis, Plaintiff's claim for age discrimination fails,
and summary judgment is granted in favor of the CTA.
IV. Retaliation Charges
A retaliation claim under Title VII based upon indirect evidence
utilizes the McDonnell-Douglas burden shifting analysis. Paluck, 221
F.3d. at 1009. Plaintiff must establish a prima facie case by showing
three elements: (1) Plaintiff engaged in statutorily protected expression
by complaining of discriminatory activity protected under Title VII; (2)
Plaintiff suffered an adverse employment action; and (3) a causal link
between the protected expression and the adverse employment action. Id,
The burden then shifts to the employer to show that it had a legitimate
non-discriminatory reason for its actions. Plaintiff can succeed only by
showing that the proffered legitimate non-discriminatory reason was a
mere pretext for discrimination. Id.
In this case, although it is unclear from the Complaint, it appears
that Plaintiffs alleged protected expression was his February 13, 1998
four-page grievance letter to Manager Stephanie Martin. However, there is
no evidence that his discharge was related to the letter. See McLaughlin
v. CTA, 01 C 4606, J. Bucklo, (N.D. Ill, April 24, 2003).
Similarly herein, the 1996 and 1997 probations and the January 23,
1998, and February 13, 1998, write-ups for poor work performance all
occurred before Plaintiff's protected expression. As in McLaughlin, there
is no nexus between the protected expression and the discharge. Thus,
Plaintiff cannot prove a causal link between the alleged protected
expression and the adverse employment action.
In any event, as argued above, the CTA had a legitimate
non-discriminatory reason for
discharging Plaintiff. Moreover, there exists no evidence of pretext for
the reasons stated above. Therefore, summary judgment is granted in favor
of the CTA on Plaintiff's retaliation claim.
V. Disability Discrimination
There are two types of disability discrimination claims under the
Americans with Disability Act ("ADA"): (I) failure to accommodate; and (2)
disparate treatment Basith v. Cook Co., 241 F.3d 919, 927 (7th Cir.
2001). The Complaint does not clearly articulate Plaintiff's disability
Paragraph 9(c) of the Complaint states, "The defendant discriminated
against the plaintiff because of plaintiff's . . . (c) Disability
(Americans with Disabilities Act) Suffered from extreme emotional stress
and depression." Paragraphs 12(e) and (f) state: "The defendant . . . (e)
failed to reasonably accommodate the plaintiffs disabilities (stress)
[and] (f) other (specify) extreme emotional stress and depression due to
fiancee's cancer ailment since 1993 and loss of fiancee in fatal car
accident on 8-8-96 after a long severe battle with breast cancer."
The Court presumes Plaintiff is trying to assert a claim for a failure
to accommodate because the mention of a failure to accommodate in
paragraph 12(e). The elements of a claim for a failure to make a
reasonable accommodation are: (1) Plaintiff was disabled; (2) the CTA was
aware of Plaintiffs disability; and (3) Plaintiff was a qualified
individual who, with or without accommodation, could perform the
essential functions of the job. Basith, 241 F.3d at 927.
In this case, there is no evidence that Plaintiff ever was disabled.
Moreover, Plaintiff has failed to prove that the CTA was aware that
Plaintiff suffered from a disability. Additionally, there is absolutely
no evidence that Plaintiff ever requested an accommodation. Finally,
there is no showing of how stress caused Plaintiff to have unexcused
absences when Plaintiff alleges that
he missed work to tend to basement flooding in his house.
In Clay v. City of Chicago, 143 F.3d 1092, 1094 (7th Cir 1998),
plaintiff was discharged for poor work performance rather than taking
medical leave and, thus, his discharge did not violate the ADA.
Likewise, in the case at bar, there is no evidence that Plaintiff was
discharged because of anything related to the alleged disability of
stress. Plaintiff was discharged for violating a probationary agreement.
As such, judgment is granted in the CTA's favor on Plaintiffs claim that
the CTA discharged Plaintiff because of his disability.
The undisputed evidence shows that Plaintiff was a long-term CTA
employee who was given every chance to keep his job. Twice he was placed
on last-chance probation agreements. Both times he violated the
agreements. Plaintiff asked to change jobs to transmission repairs. His
request was granted, and he was properly trained. Unfortunately, he could
not do the job in the allotted time. There is simply no evidence to
support Plaintiff's claims that the discharge was based on race, age,
disability or retaliation.
For the foregoing reasons, we grant the motion of Defendant Chicago
Transit Authority for summary judgment (# 26-1). Judgment is entered in
favor of the Chicago Transit Authority on all counts of Plaintiff's
complaint. This case is hereby terminated. This is a final and appealable
© 1992-2004 VersusLaw Inc.