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King v. Burlington Northern

August 8, 2006

GERALDINE KING, PLAINTIFF,
v.
BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Defendant Burlington Northern and Santa Fe Railway Company ("BNSF") employed Plaintiff Geraldine King until an investigation of the loss of a number of passenger tickets resulted in her discharge in 2004. BNSF filed criminal charges against Plaintiff, resulting in this lawsuit for malicious prosecution. While the criminal charges were pending, Defendant conducted two investigative hearings regarding the theft of these tickets and subsequently terminated Plaintiff's employment based upon the evidence presented at the hearings through her union. Plaintiff appealed her termination to a System Board of Adjustment ("SBA"), but the SBA concluded that BNSF had made a "convincing case" of Plaintiff's involvement in the theft and affirmed her discharge. Defendant now moves for summary judgment, arguing that the SBA's decision bars Plaintiff's malicious prosecution claim under the doctrine of collateral estoppel. For the reasons set forth below, the motion is granted.

FACTUAL BACKGROUND

The facts relevant to this motion are largely undisputed. Defendant BNSF hired Plaintiff Geraldine King, an African-American female, as a clerk on May 16, 1977.*fn1 (Plaintiff's Statement of Additional Facts Pursuant to Local Rule 56.1(b)(3)(B) (hereinafter, "Pl. 56.1 Stmt.") ¶¶ 2-3.) Plaintiff worked as a ticket agent at the Aurora BNSF station from June 2002 until April 2003, when she was suspended pending investigation of her involvement with the loss of 100 "10-ride" passenger tickets. (Transcript of investigation held on April 10, 2003 (hereinafter "April 10 Transcript"), Ex. 1 to Defendant's Local Rule 56.1 Statement of Undisputed Material Facts (hereinafter, "Def. 56.1 Stmt."), at 62; Pl. 56.1 Stmt. ¶ 5.) During the relevant time, Plaintiff worked the third shift, 10:30 P.M. until 6:30 A.M., and she was the only ticket seller on duty from the time she opened the ticket office at 4:15 A.M. until approximately 6:00 A.M. (Id.)

In early March 2003, Sue Walker, Chief Clerk for BNSF, noticed a discrepancy in ticket inventory reported from Aurora Station. (Id. at 7-8, 14.) Specifically, 100 "10-ride" tickets were absent from the inventory, and after an unsuccessful search of the station on March 13, 2003, the tickets were deemed stolen. (Id. at 8.) On March 17, BNSF Special Agent G.D. Lange began an investigation into the missing tickets and on March 26, located a passenger with a ticket numbered within the missing series of tickets and date-stamped March 24, 2003. (Id. at 8, 17.) The first punch on the recovered ticket was identified as unique to a 5:25 A.M. train out of Aurora on March 24. (Id. at 8, 18) According to Lange, the passenger identified Plaintiff in a photo line-up as the person who sold him that ticket. (Id.at 8, 51-52.)

BNSF Special Agent Lange subsequently filed a criminal complaint in Kane County against Plaintiff for the theft of the missing tickets.*fn2 (Pl. 56.1 Stmt. ¶ 21; Def. Response to Pl. 56.1 Stmt. ¶ 21.) Plaintiff asserts, without citing any supporting evidence, that she alone was the focus of Defendant's investigation into the missing tickets, despite being one of ten to twelve employees who worked at the Aurora Transportation Center ticket office and had access to the missing tickets. (Id. at ¶¶ 29-30.) Citing testimony from the investigatory hearings, Defendant contends that Special Agent Lange interviewed numerous BNSF employees regarding the ticket theft and focused his investigation on Plaintiff only after evidence came to light, including the statements of BNSF passengers regarding the time and location of their purchase of the missing tickets, that Plaintiff alone could have sold them. (Def. Response to Pl. 56.1 Stmt. ¶ 30 (citing Apr. 10 Transcript, Ex. 1 to Def. 56.1 Stmt., at 52-56; Transcript of investigation held on May 2, 2003 (hereinafter "May 2 Transcript"), Ex. 2 to Def. 56.1 Stmt., at 25-26, 30).)

Pursuant to provisions of the collective bargaining agreement between Defendant and Plaintiff's union, the Transportation Communications Union ("TCU") No. 781, Defendant held an initial hearing on April 10, 2003 to determine Plaintiff's role in the alleged theft of the ticket recovered on March 26. (Def. 56.1 Stmt. at ¶¶ 8-9 (citing April 10 Transcript, Ex. 1 to Def. 56.1 Stmt., at 8-9).) This hearing was originally scheduled for April 7, 2003, but was postponed for three days due to weather conditions and prior commitments of the hearing officer. (April 10 Transcript, Ex. 1 to Def. 56.1 Stmt., at 3.) Plaintiff attended the hearing and was represented by Marvie Parker, District Chairman of TCU No. 781. (Pl. 56.1 Stmt. ¶ 9.) Ms. Parker objected to the delay in proceedings as contrary to the working agreement between BNSF and TCU, which provides that an investigation must be held within seven calendar days of the date when the employee is charged with the offense or held out of service unless delay is necessary to secure presence of witnesses or representatives. (April 10 Transcript, Ex. 1 to Def. 56.1 Stmt., at 4.) Hearing Officer A.J. Schuurman noted Ms. Parker's objection but continued with the hearing. (Id.)

Defendant convened a second hearing on May 2, 2003, when two additional tickets in the missing series were recovered and linked to Plaintiff. (Def. 56.1 Stmt. ¶ 10 (citing May 2 Transcript, Ex. 2 to Def. 56.1 Stmt., at 3).) One of these two additional recovered tickets was stamped as sold on January 29, 2003, and the deposit slip for the check payment for the ticket was written in Plaintiff's handwriting. (May 2 Transcript, Ex. 2 to Def. 56.1 Stmt., at 18-19.) The other recovered ticket was stamped as sold March 7, 2003, and the first punch on the ticket was for a train departing at 4:47 A.M. (Id. at 20-21.) Plaintiff worked on the mornings of January 29 and March 7 but reported no overage in her cash drawer that would have compensated for the sale of the missing, out-of-series tickets. (Id. at 22.)

Plaintiff and her union representative had the opportunity to cross-examine witnesses and present testimony at both hearings. (Id. at ¶ 11 (citing April 10 Transcript, Ex. 1 to Def. 56.1 Stmt., and May 2 Transcript, Ex. 2 to Def. 56.1 Stmt.).) Although neither she nor her union had the authority to compel the presence of any non-employee witness, (Pl. 56.1 Stmt. ¶ 17.), Plaintiff was free to request the presence of witnesses at the hearings. (Def. Response to Pl. 56.1 Stmt. ¶ 17.) Plaintiff did not in fact request the appearance of witnesses other than those already present at the hearings. (May 2 Transcript, Ex. 2 to Def. 56.1 Stmt., at 48.) At both hearings, Plaintiff objected to the lack of procedural safeguards she had been provided, including her inability to cross-examine the BNSF passengers who possessed the missing tickets. (Apr. 10 Transcript, Ex. 1 to Def. 56.1 Stmt., at 79; May 2 Transcript, Ex. 2 to Def. 56.1 Stmt., at 47.) Instead of presenting these customers as witnesses, BNSF Special Agent Lange testified to the statements they provided regarding how the tickets came into their possession. (Pl. 56.1 Stmt. ¶ 47.) As a result of the evidence presented at both investigative hearings, Defendant terminated Plaintiff's employment. (Def. 56.1 Stmt. ¶ 12 (citing letter from Schuurman to King of 4/28/2003, Ex. 3 to Def. 56.1 Stmt.; letter from Schuurman to King of 5/29/03, Ex. 4 to Def. 56.1 Stmt.).)

Through her Union representative Marvie Parker, Plaintiff sent two appeals of her termination, one for each hearing, to Michelle McBride, Defendant's Senior Analyst/Manpower Planning. (Id. at ¶ 13 (citing letter from Parker to McBride of 6/24/03, Ex. 5 to Def. 56.1 Stmt. and letter from Parker to McBride of 7/27/03, Ex. 6 to Def. 56.1 Stmt.).)*fn3 Ms. McBride denied Plaintiff's initial appeals. (Id. at ¶ 14 (citing letter from McBride to Parker of 8/19/03, Ex. 7 to Def. 56.1 Stmt., and letter from McBride to Parker of 9/22/03, Ex. 8 to Def. 56.1 Stmt.).) Through R.A. Arndt, General Chairman of TCU, Plaintiff made two further appeals of her termination to Defendant's General Director/Labor Relations, documenting her claim with exhibits including the full hearing transcripts, Plaintiff's previous appeals and Defendant's responses, and Railroad Adjustment Board awards from prior cases finding in favor of claimants on procedural grounds (e.g., a hearing held more than ten days after charging claimant with an offense or holding claimant out of service). (Id. at ¶ 15 (citing letter from Arndt to Broxterman of 10/17/03, Ex. 9 to Def. 56.1 Stmt., and letter from Arndt to Broxterman of 11/18/03, Ex. 10 to Def. 56.1 Stmt.).) Defendant denied both of these appeals, as well, noting specifically that Plaintiff's procedural objections were without merit. (Id. at ¶ 16 (citing letter from Broxterman to Arndt of 2/24/04, Ex. 11 to Def. 56.1 Stmt., and letter from Broxterman to Arndt of 2/25/04, Ex. 12 to Def. 56.1 Stmt.).) Two more appeals were similarly unsuccessful. (Id. at ¶¶ 17-19 (citing letter from Arndt to Broxterman of 3/15/04, Ex. 13 to Def. 56.1 Stmt., letter from Arndt to Broxterman of 3/15/04, Ex. 14 to Def. 56.1 Stmt., letter from Broxterman to Arndt of 3/29/04, Ex. 15 to Def. 56.1 Stmt., letter from Broxterman to Arndt of 3/29/04, Ex. 16 to Def. 56.1 Stmt., letter from Swanson to Broxterman of 4/2/04, Ex. 17 to Def. 56.1 Stmt., letter from Swanson to Broxterman of 4/2/04, Ex. 18 to Def. 56.1 Stmt., letter from Broxterman to Arndt of 4/7/04, Ex. 19 to Def. 56.1 Stmt., and letter from Broxterman to Arndt of 4/7/04, Ex. 20 to Def. 56.1 Stmt.).)

During the pendency of these appeals, Special Agent Lange recovered a fourth missing ticket that was also linked to Plaintiff. (Defendant's Response to Plaintiff's Additional Statement of Uncontested Facts (hereinafter "Def. Response") to Pl. 56.1 Stmt. ¶ 33 (citing letter from Broxterman to Arndt of 3/29/04, Ex. 15 to Def. 56.1 Stmt., at 4 attachment 3; and letter from Broxterman to Arndt of 3/29/04, Ex. 16 to Def. 56.1 Stmt., at 5 attachment 4).) This ticket was stamped as sold on February 12, 2003, for use on the 5:47 A.M. train. (Id.) The receipt for check payment had been filled out in Plaintiff's handwriting. (Id.)

TCU, representing Plaintiff, continued to appeal the results of both hearings through the highest level of recourse: a System Board of Adjustment ("SBA") arbitration panel convened pursuant to the Railway Labor Act. (Id. at ¶ 20 (citing SBA No. 1128, Award in Case Nos. 49 and 50 (hereinafter "SBA Award 49" and "SBA Award 50"), Ex. 21-22 to Def. 56.1 Stmt.).) The SBA was comprised of Carrier Member O.D. Wick, an officer of BNSF; R.A. Arndt, the general chairman of TCU; and C.H. Gold, the neutral SBA chairman. (Id. at ¶ 27 (citing SBA Award 49 and SBA Award 50, Ex. 21-22 to Def. 56.1 Stmt.).)*fn4 Defendant and TCU submitted all testimony and arguments from the prior investigation and hearings to the SBA. (Def. 56.1 Stmt. ¶ 21.) Plaintiff observes that the SBA was not allowed to hear additional testimony or view supplemental exhibits, nor was it allowed to review Defendant's investigatory proceedings de novo. (Pl. 56.1 Stmt. ¶¶ 62-63.) She has not, however, identified any testimony or exhibits she would have offered had she the opportunity to do so. (Id.) Defendant counters that Plaintiff did not support these claims with evidence as required by Fed. R. Civ. P. 56(e), but concedes that in accordance with railroad and union guidelines, the record from Plaintiff's hearings was closed on a specified date and the SBA was not allowed to entertain additional testimony or exhibits past that date. (Def. Response to Pl. 56.1 Stmt. ¶ 62.) Defendant notes, however, that the SBA was permitted to review any and all investigation records, including transcripts from both investigations and all correspondence between BNSF and TCU. (Id. at ¶ 63.)

In Award 49, regarding the April 10 hearing, the SBA ruled that Defendant was "able to establish a convincing case that [Plaintiff] was the individual who sold and benefited from the sale of the missing tickets." (Def. 56.1 Stmt. ¶ 23 (quoting SBA Award 49, Ex. 21 to Def. 56.1 Stmt.).) The SBA acknowledged that Defendant's case relied heavily on "the fact that all of the [stolen] tickets were sold between 0500 and 0530 hours and that [Plaintiff] was the only ticket salesperson on duty between 5 and 5:30 A.M." (Id.) The SBA rejected TCU's defense that someone had slipped the missing tickets into Plaintiff's stack without her knowledge. (Id.) Had such an event occurred, the SBA reasoned, Plaintiff would have had extra funds in her cash drawer at the end of her shift, but she did not report any overage on the dates when the tickets were sold. (Id.) The SBA also determined that objections Plaintiff had raised during the hearings were insufficient. (Id. at ¶ 24 (quoting SBA Award 49, Ex. 28 to Def. 56.1 Stmt.).) Specifically, the SBA ruled that a three-day delay (from April 7 to April 10) in conducting the initial hearing was "reasonable," that Defendant's failure to provide first-hand testimony of ticket purchasers was "understandable, given Carrier's lack of subpoena power," that testimony from additional witnesses, such as ticket collectors, "would have added nothing to the proceedings," and that TCU had been provided a complete transcript of the hearings. (Id.) In Award 50, regarding the May 2 hearing, the SBA reiterated that the merits of Plaintiff's case had been previously considered in SBA Award 49 and stood by its finding that the evidence presented was sufficient to establish the conclusion that Plaintiff was guilty of the ticket theft. (Id. at ¶ 25 (quoting SBA Award 50, Ex. 22 to Def. 56.1 Stmt).)

On November 16, 2004, the criminal complaint against plaintiff was dismissed because no complaining witness appeared for trial. (Pl. 56.1 Stmt. ¶¶ 22-23.) It is undisputed that complaining witness BNSF Special Agent Lange was present in court that day and that he spoke with the Kane County Assistant State's Attorney prior to Plaintiff's criminal case being called. (Id. at ¶ 23.)*fn5 The criminal complaint could not be reinstated because more than a year had passed since it had been filed. (Id. at ¶ 24.)

DISCUSSION

To establish her claim of malicious prosecution under Illinois law, Plaintiff must prove ...


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