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September 27, 2004.


The opinion of the court was delivered by: SUZANNE CONLON, District Judge


Sherman Riley sues National Railroad Passenger Corp., d/b/a Amtrak ("Amtrak") pursuant to 42 U.S.C. § 1981. Riley asserts Amtrak terminated him in 2002 on account of his race. Amtrak contends its 2002 termination of Riley for sleeping while on duty was non-discriminatory and moves for summary judgment under Fed.R. Civ. P. 56.


  All facts are undisputed unless otherwise noted.*fn1 On February 4, 1980, Riley began working for Amtrak as a carman. Amtrak Facts at ¶ 4. Carmen are responsible for inspection, maintenance and repair of Amtrak's trains. Id. at ¶ 13. For at least the past ten years, Riley has worked at Amtrak's Chicago facility. Id. at ¶ 14. Riley is African-American and is currently employed by Amtrak. Id. at ¶ 3. On July 17, 2002, Amtrak's management performed an inspection of the Chicago facility and identified inefficiencies. Id. at ¶ 21. As a result of the inspection, the following employees were charged with sleeping on the job: Jerome Baker (black), Carl Cook (black), Peter Demetrius (black), Charles Hayes (black), Josea Middleton (black), Pedro Avalos (Hispanic), John Fassl (white), David Nadolny (white) and Joseph Rybak (white). Id. at ¶ 22. Investigative hearings were conducted; each employee had union representation and was given an opportunity to defend himself against the charges. Id. at ¶¶ 24, 30, 35, 41, 46, 50, 56, 64, 72. All nine employees were terminated. Id. at ¶¶ 26, 32, 37, 43, 48, 52, 58, 66, 74. Five were reinstated after appeals by their unions. Id. at ¶ 28, 39, 44, 54, 78. Two other employees, Carmen Cabello (Hispanic) and Peter Dutrow (white) were charged with falling asleep at their workstations. Id. at ¶ 79. At their union's request, Cabello and Dutrow were given waivers. Id. at 80-82. A waiver is an agreement between Amtrak and an employee whereby the employee admits guilt and waives his right to a formal investigative hearing in exchange for lesser discipline. Id. at ¶ 9. After the July 17, 2002 inspection, Amtrak "put the word out" that it was "cracking down" on sleeping. Id. at ¶ 83.

  On August 16, 2002, Riley's shift began at 11:00 p.m. and ended at 7:00 a.m. the next morning. Id. at ¶ 84. William Spisak was the foreman on duty, assisted by foreman Norville Simpson. Id. Riley was teamed to work with Marlon Cooper and Marcus Ethridge. Id. at ¶ 85. On the morning of August 17, 2002, while still on duty, Riley went to the second floor bedroom of a sleeper car while Ethridge and Cooper performed repair work that had been assigned to all three employees. Id. at ¶ 86. At approximately 6:25 a.m., Spisak found Riley in the sleeper car and reported to Tom Chase, his supervisor, that he had found Riley sleeping. Id. at ¶¶ 87-88. Chase pulled Riley out of service (i.e., suspended him pending investigation) for sleeping on the job. Id. at ¶ 89. Prior to August 17, 2002, Riley had been disciplined on twenty occasions including a 1989 dismissal and reinstatement. Id. at ¶ 90.

  By letter dated August 20, 2002, Amtrak notified Riley he was charged with failing to remain alert and with sleeping in a passenger car, in violation of the "Attending to Duties" standard of Amtrak's "Standards of Excellence" and a July 12, 2002 letter of instruction from Chase. Id. at ¶ 92. Riley was informed he could produce witnesses and have union representation at his scheduled investigative hearing. Id. at ¶¶ 92-93. Riley's hearing took place on September 6, 2002, was continued to allow the union to call an additional witness, and concluded on September 16, 2002. Id. at ¶ 94. Carl Demotses served as hearing officer, Chase served as Amtrak's charging officer, and the union's local chairman William Smith appeared on Riley's behalf. Id. at ¶¶ 95-97. Riley attended the hearing, testified on his own behalf, and questioned witnesses. Id. at ¶ 98. Riley testified: (1) on the morning of August 17, 2002, he, Ethridge and Cooper were assigned to inspect a train; (2) Ethridge and Cooper volunteered to inspect the train and let Riley "sit and wait;" (3) at 6:25 am., he was sitting upright in a bedroom of the sleeper car and saw Spisak enter the room; and (4) he told Spisak he was waiting to get off work. Id. at ¶ 106. During the hearing, Smith and Riley did not assert Spisak discriminated against Riley on the basis of his race. Riley Facts at ¶ 162.

  Spisak and Simpson also testified at Riley's hearing. Amtrak Facts at ¶¶ 99, 101. Spisak testified: (1) at approximately 5:15 a.m. on August 17, 2002, he looked for Riley to assign him a task; (2) he found Riley at 6:20 a.m. reclining with his eyes closed and his head on two pillows on the couch of a sleeper car; (3) the room door curtain was closed, both window curtains were closed, the room light was off; (4) he awakened Riley in a raised voice; (5) Riley stated he was waiting to go home; and (6) he assigned Riley the task. Id. at ¶ 100. Simpson testified: (1) at approximately 6:00 a.m. on August 17, 2002 he assigned Riley, Ethridge, and Cooper to inspect a train; and (2) he did not tell Riley to take a break anytime around 6:00 a.m. Id. at ¶ 102.

  On September 18, 2002, Demotses issued his written decision. Id. at ¶ 107. Demotses found Amtrak had proven the charges against Riley and that Riley's testimony was less credible than that of all other witnesses. Id. at ¶¶ 107-108. In addition, Demotses found that, in violation of both Amtrak's standards and the July 11, 2002 letter of instruction, Riley elected not to follow instructions to inspect the train and went to the sleeper car where he was found by Spisak asleep or assuming an attitude of sleep. Id. at ¶ 109-110. In light of the foregoing, Steve McClarty, superintendent of terminal services, issued a termination recommendation. Id. at ¶ 111. McClarty's supervisor approved the termination recommendation; Riley was notified of the termination decision on September 20, 2002. Id. at ¶¶ 113, 115.

  The union's two appeals of the discharge decision and request for issuance of a leniency reinstatement were denied. Id. at ¶¶ 116-120. The union subsequently appealed Riley's termination to the Public Law Board ("PLB"), a three-member arbitration panel empowered to hear appeals from Amtrak's disciplinary decisions. Id. at ¶¶ 11, 121. The PLB consisted of a neutral chairperson, an Amtrak representative and a union representative. Id. at ¶ 11. The PLB sustained the disciplinary decision's finding that Riley was asleep while on duty and that Riley's explanation for his presence in the sleeper car was unreasonable. Id. at ¶¶ 122-124. After finding Riley's twenty-two year tenure with Amtrak was virtually without discipline for the previous thirteen years, the PLB reduced Riley's discipline from termination to suspension without pay, and he was placed on final warning status. Id. at ¶ 125; Riley Facts at ¶ 167. DISCUSSION

  I. Standard of Review

  Summary judgment is appropriate when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); King v. Nat'l Human Res. Comm., Inc., 218 F.3d 719, 723 (7th Cir. 2000). Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R. Civ. P. 56(e); Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000).

  II. Race Discrimination

  Section 1981 prohibits employment discrimination based on race. Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 346 (7th Cir. 1999), citing Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1034 (7th Cir. 1998). "While Section 1981 and Title VII differ in the types of discrimination they proscribe, the methods of proof and elements of the case are essentially identical." Von Zukerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1472 (7th Cir. 1993). To prevail on his claim, Riley must demonstrate "that the basis for [his] termination was the impermissible consideration of race, i.e. that a person of another race would not have been discharged under similar circumstances." Cowan v. Glenbrook Sec. Servs., 123 F.3d 438, 442 (7th Cir. 1997), quoting Rush v. McDonald's Corp., 966 F.2d 1104, 1112 (7th Cir. 1992). To do so, Riley must offer either direct or indirect evidence of discrimination. See Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998). Riley does not offer any direct evidence that Amtrak terminated his employment because of his race. Instead, he relies on the indirect burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

  In order to establish a prima facie case of race discrimination using the indirect method, Riley must show: (1) he belongs to a protected class; (2) he met Amtrak's legitimate performance expectations; (3) he suffered an adverse employment action; and (4) Amtrak treated similarly situated employees outside the protected class more favorably. Johnson v. Cambridge Indust., Inc., 325 F.3d 982 (7th Cir. 2003). If Riley establishes a prima facie case, a rebuttable presumption of discrimination arises and the burden shifts to Amtrak to articulate a non-discriminatory reason for its adverse action. Dyrek v. Garvey, 334 F.3d 590, 598 (7th Cir. 2003). If Amtrak meets this burden, ...

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