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 ...