United States District Court, N.D. Illinois, Eastern Division
September 27, 2004.
SHERMAN RILEY, Plaintiff,
NATIONAL RAILROAD PASSENGER CORP., d/b/a AMTRAK, Defendant.
The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
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,
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, the presumption of discrimination disappears
and Riley must prove, by a preponderance of the evidence,
Amtrak's asserted reason is a pretext for intentional
Amtrak does not contest Riley's ability to satisfy the first
and third prongs of a prima facie case. Rather, Amtrak contends
Riley was not meeting its legitimate performance expectations at
the time of termination and that he has not identified similarly
situated employees outside the protected class who were treated
more favorably. Finally, Amtrak asserts Riley cannot establish
its legitimate non-discriminatory reason for his termination was
A. Job Expectations
To establish the second element of a prima facie case, Riley
must demonstrate "he was performing his job satisfactorily enough
to avoid discharge absent racial bias." Cowan, 123 F.3d at 445.
Amtrak argues Riley cannot establish he met legitimate
performance expectations by sleeping on the job while his
co-workers inspected the train. Riley does not argue that
sleeping while on duty would have satisfied Amtrak's expectations. Rather, he contends:
(1) the assigned train inspection did not require three
employees, and Ethridge and Cooper assured him his help was
unnecessary; (2) carmen are allowed to sit on the train to await
their next assignments or the end of their shifts; and (3) he was
not sleeping during his shift. Riley Mem. at 4-6. He asserts he
met Amtrak's expectations by waiting in the train car until his
next assignment or completion of his shift. Id.
Viewing all facts and inferences in his favor, the undisputed
evidence demonstrates Riley did not meet Amtrak's legitimate
performance expectations. Riley does not deny he was found in the
second level bedroom of a darkened sleeper car. He does not deny
that he did not perform the inspection as assigned. Regardless of
whether he was in fact asleep or whether his co-workers did not
feel they needed help, he was not performing the task assigned to
him by his supervising foreman. An employee who does not follow
his supervisor's direct orders cannot establish he met the
employer's legitimate performance expectations. Onwunmelu v.
Amtrak, 318 F. Supp. 2d 669, 671 (N.D. Ill. 2004).
Nevertheless, Riley contends the court need not address whether
he satisfied Amtrak's expectations because Amtrak acted with a
racially discriminatory bias in terminating him based on the
August 17, 2002 incident. When the issue is whether "plaintiff
was singled out for discipline based on a prohibited factor, it
makes little sense . . . to discuss whether [he] was meeting
[his] employer's reasonable expectations." Curry v. Menard,
Inc., 270 F.3d 473, 477 (7th Cir. 2001). However, this approach
requires Riley to first establish he was singled out, i.e.,
treated differently than similarly situated employees outside his
protected class. Id., Oest v. Ill. Dep't of Corr., 240 F.3d 605
(7th Cir. 2001); Flores v. Preferred Tech. Group, 182 F.3d 512
(7th Cir. 1999); Tate v. Washington Mutual, No. 02 C 5853, 2004
U.S. Dist. LEXIS 15516, at *22-25 (N.D. Ill. Aug. 10, 2004); Walls v. Turano Baking Co., 221 F. Supp. 2d 924, 932
(N.D. Ill. 2002). Because Riley is unable to show differential
treatment, the court must reject this argument.
B. Similarly Situated
Normally, to establish two employees are similarly situated,
the evidence must show both employees "dealt with the same
supervisor, were subject to the same workplace rules, and engaged
in similar conduct without such differentiating or mitigating
circumstances as would distinguish their conduct or the
employer's treatment of them." Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 617-18 (7th Cir. 2000). Riley, citing Lopez v.
Chicago Faucet Co., No. 02 C 6930, 2003 U.S. Dist. LEXIS 18738,
at *17-18 (N.D. Ill. Oct. 20, 2003), asserts this normal showing
is unnecessary if a collective bargaining agreement dictates that
identical standards apply to two employees. Riley Mem. at 6-7.
Relying on Lopez, he contends Dutrow and Cabello were similarly
situated to him because, as members of Riley's union, they were
governed by the same collective bargaining agreement. Riley
argues Dutrow and Cabello were treated more favorably because
they received waivers after falling asleep while on duty, two
witnesses established they had fallen asleep, and they were given
blood and urine tests to check for drugs. In contrast, he was
terminated, Spisak was the only witness to Riley's alleged
sleeping and he was not given a drug test.
Dutrow and Cabello are not similarly situated based simply on a
shared collective bargaining agreement. In Lopez, the plaintiff
challenged a job reassignment as violating provisions of a
collective bargaining agreement; the court viewed employees with
equal or greater seniority rights as similarly situated for
purposes of that analysis. Here, the provisions or requirements
of the collective bargaining agreement are not at issue. Rather,
Riley contends his discipline was discriminatory because Spisak's
August 17, 2002 accusation against him was grounded in racial
bias. Therefore, the appropriate standard requires Riley to identify
another employee who committed a similar infraction but was
treated more favorably by Spisak. Radue, 219 F.3d at 617-18.
Riley fails to establish Dutrow and Cabello are similarly
situated. Preliminarily, Riley does not allege that Spisak found
Dutrow or Cabello asleep, that he was their supervisor, or that
he had anything to do with their discipline. Nor does he
establish they were treated differently by the same
decisionmaker; Dutrow and Cabellow were not disciplined by
McClarty. Amtrak Facts at ¶¶ 80-82. This failure alone precludes
a showing of similarity. Radue, 219 F.3d at 618. Further, Riley
undermines his own arguments regarding different procedures and
discipline by contending their conduct differed from his in
severity.*fn2 Riley Mem. at 8. Finally, regardless of
whether their conduct was more or less egregious than Riley's, it
is undisputed that Dutrow and Cabello admitted guilt to obtain
waivers. In contrast, "throughout the discipline process and this
litigation, [Riley] has consistently maintained that he was not
sleeping during his shift on the morning of August 17, 2002."
Riley Mem. at 5. The employees' contrasting approaches to
admitting guilt reasonably distinguished their conduct and
Amtrak's treatment of them. Radue, 219 F.3d at 617-18.
Moreover, the evidence shows that nine employees were
terminated for sleeping on the job in July 2002. Of the nine,
four were terminated by McClarty, the same individual who made
Riley's termination decision. Of those four, two were
African-American and two were Caucasian. Riley has failed to satisfy his prima facie burden of identifying a
similarly situated employee who was treated more favorably.
Even if Riley established a prima facie case of race
discrimination, no reasonable jury could find Amtrak's reason for
his termination was pretextual. By asserting Riley was terminated
for sleeping or assuming an attitude of sleep instead of
following instructions, Amtrak has met its burden of asserting a
legitimate non-discriminatory reason for its adverse action. To
establish pretext, Riley must point to evidence that would tend
to prove Amtrak's reason is factually baseless, not the actual
motivation for the discharge, or insufficient to motivate the
discharge. Dyrek, 334 F.3d at 598. It is not enough to show the
decision was mistaken or unfair, for the court's only concern
regarding pretext is whether Amtrak's explanation was honestly
believed. Id.; Giannopoulous v. Brach & Brock Confections,
Inc., 109 F.3d 406, 410 (7th Cir. 1997).
Riley asserts he can show pretext because similarly situated
employees were treated more favorably and Amtrak utilized
different procedures in disciplining those employees. As
previously discussed, those arguments are rejected. Riley further
argues Amtrak's reliance on the allegation he was sleeping on the
job is pretextual because Spisak was motivated by discriminatory
intent. In support of this allegation, he points out Spisak
shouted at him to complete an unsafe task three days prior to the
charge of sleeping while on duty. Riley found Spisak's demeanor
troubling because "Spisak did not display such anger with
Caucasian employees who caused problems." Riley Mem. at 12. Riley
asserts his view Spisak had racial bias is corroborated by
Ethridge and Cooper, who think Spisak places higher demands on
African-American employees than on Caucasian employees. Finally, Riley contends Spisak falsely testified at the
termination hearing that he found Riley asleep, approached
Ethridge to locate Riley, and that Simpson knew Spisak was
searching for Riley.
Viewing the facts in Riley's favor, these allegations do not
support a reasonable inference of discrimination in the
termination decision. It is undisputed that Spisak did not make
the decision to terminate Riley. Riley tries to skirt this fact
by asserting his disciplinary proceeding was tainted by Spisak's
discriminatory animus, which was imputed to Amtrak. In support of
this allegation, Riley argues the hearing officer substantially
relied on Spisak's testimony and "never examined the possibility
of Spisak's racial motivation." Riley Mem. at 14. The court finds
this argument curious at best. It is undisputed Riley presented
and questioned witnesses and had union representation at the
hearing, yet he never asserted Spisak discriminated against him
on the basis of race. Instead, Riley asserted Spisak was setting
him up because Riley testified in an employee's personal injury
lawsuit against Amtrak and because Riley objected to an
assignment Spisak had given him. Spisak Dep. at 161-62, 176-77.
If anything, these arguments support Amtrak's assertion that the
adverse action was taken for reasons other than race. They
certainly do not support Riley's argument that Spisak's alleged
discriminatory animus should be imputed to the hearing officer,
McClarty or Amtrak, or that Amtrak did not honestly believe it
was terminating Riley for sleeping on the job.
Riley had an opportunity to dispute the alleged discriminatory
charges through an investigatory process; his story was not
credited. The hearing officer determined Amtrak had proven the
charges against him. Even the PLB, which reduced Riley's
discipline from termination to suspension, 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. No reasonable jury could conclude Amtrak
terminated Riley on the basis of his race. CONCLUSION
The material facts are undisputed. For the foregoing reasons,
Amtrak is entitled to judgment as a matter of law.