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March 10, 2004.


The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge


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, 1998.

  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 of vacationing Page 2 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 Page 3 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, Page 4 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 Page 5 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. Page 6

  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 17, 1998.

  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 accusations.

  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 noted.

  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 Page 7 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 ...

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