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
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).
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, ...