The opinion of the court was delivered by: Michael M. Mihm United States District Judge
This matter is now before the Court on the Motion for Summary Judgment by Defendants Waste Management, Tony Curren ("Curren"), and Kevin Norville ("Norville"). For the reasons set forth below, the Motion for Summary Judgment [#36] is GRANTED IN PART and DENIED IN PART .
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, as the allegations present federal questions under Title VII, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the Age Discrimination in Employment Act, 29 U.S.C. § 626 et seq.
Plaintiff, Andrew Smith ("Smith"), is a white male and was born on July 31, 1955. He was hired by Waste Management (or its predecessor) as a waste truck driver and has been in the same division since 1977. Smith started as a rolloff driver before becoming a commercial front end loader driver in 1992.
Smith was a member of the Teamsters Union, Local 627 throughout his employment with Waste Management. As union members, all of the drivers at Waste Management were subject to the provisions of a Collective Bargaining Agreement ("CBA"). The CBA in effect from May 20, 2000, to May 20, 2004, provided for disciplinary procedures relating to driver accidents, including the rule that accidents would "fall off" a driver's record after nine months and that a driver was subject to discharge after two chargeable accidents within a nine month period. On May 20, 2004, a new CBA went into effect through May 20, 2007. This CBA distinguished chargeable accidents involving vehicle operation from all other violations for purposes of imposing discipline. Discipline for an accident is determined on a case by case basis depending on the facts uncovered by the route manager's investigation and the conclusion as to the root cause of the accident. Smith contends that the CBA was not enforced as written and that discipline was not objectively determined.
Defendant Curren, an African American, became Smith's direct supervisor in February 2004. Curren was a route manager at Waste Management's East Peoria facility from early 2002 until 2006. Mike Kennerley ("Kennerley") was another route manager for the Peoria Division from July 10, 1998, until February 25, 2004. Larry Stuart ("Stuart") was employed by Waste Management for 35 years, including serving as a route manager at the East Peoria facility from 1998 to 2007. These route managers reported to Norville, the District Manager, who then reported to the Area Manager, Steve Fredash ("Fredash"). Non-termination disciplinary decisions were ultimately made by Norville, with input from the driver's route manager, while termination decisions also involved Fredash.
Between February 20 and July 17, 2001, Smith had four accidents within five months but there are no records indicating that he was disciplined for any of them. On March 4, 2003, he received a written warning from Kennerley for an incident in which Smith was backing out of a driveway and hit another vehicle; Smith admits his responsibility for this accident but believes that he was unfairly disciplined. On March 21, 2003, Smith had another accident when he attempted to move a waste container and caused damage by hitting a gas meter. Kennerley suspended him for one day as a result of this accident. Smith grieved his suspension, but the grievance was denied. On April 7, 2003, Smith had another accident when the turnbuck of his truck caught the hood of another vehicle while he was backing away from a container. Kennerley suspended him for three days as a result of this accident, and he did not grieve this suspension. On July 7, 2003, Smith had his fourth accident in a little over four months when he caught an overhead wire while lifting a waste container over the cab of his truck. Following this accident, Fredash and Norville made the decision to terminate Smith's employment, and Smith was advised of this decision by Kennerley.
On July 16, 2003, Smith grieved his termination. After meeting with the union, Norville informed Fredash that Smith had some personal issues and that given the time Smith had with Waste Management, he should be given another chance. Fredash directed Norville to discuss the situation with Tom Danko ("Danko"), the Safety Director. Fredash, Norville, and Danko discussed the situation and agreed to give Smith an additional chance. On August 8, 2003, Smith and Waste Management entered into a last chance agreement (the "Agreement"). The Agreement indicated that although Waste Management had a right to terminate him based on his accidents, he would be placed on an unpaid suspension from July 16, 2003, through August 10, 2003. The Agreement further provided that if Smith received any further discipline during the 12-months that the Agreement was in effect, he had the right to contest the event which precipitated the imposition of the discipline but could not contest the severity of the penalty imposed therefore.
On May 3, 2004, Smith had another accident when he sideswiped the end of a sign with the top rear left hand corner of his vehicle. Curren was his supervisor at the time of this accident, so Curren investigated and filled out the paperwork regarding the accident. As a result of this accident, Smith was terminated under the Agreement. The decision to terminate his employment was made by Norville and Fredash with input from Curren. Smith grieved his termination, but was told by the union's president that he probably would not be getting his job back and that he should look for another job. Although he contends that other employees should have been placed on last chance agreements, Smith admits that there was no other employee who was on a last change agreement, violated it, and was not terminated.
On August 30, 2004, Smith filed his Charge of Discrimination with the EEOC claiming only age discrimination. On September 17, 2004, he amended his charge to claim race discrimination in addition to age discrimination. Smith was subsequently issued a Right to Sue letter.
On September 26, 2005, Smith filed this action alleging that he was the victim of racial and age discrimination in violation of Title VII and the ADEA. Defendants have now moved for summary judgment. The matter is fully briefed and this Order follows.
Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the responsibility of informing the Court of portions of the record or affidavits that demonstrate the absence of a triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party may meet its burden of showing an absence of disputed material facts by demonstrating "that there is an absence of evidence to support the non-moving party's case." Id. at 325. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).
If the moving party meets its burden, the non-moving party then has the burden of presenting specific facts to show that there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the pleadings and produce evidence of a genuine issue for trial. Celotex, 477 U.S. at 324. Nevertheless, this Court must "view the record and all inferences drawn from it in the light most favorable to the [non-moving party]." Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). Summary judgment will be denied where a reasonable jury ...