The opinion of the court was delivered by: District Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on a Motion for Summary Judgment , filed by Defendant, American Airlines, Inc., on November 14, 2007. For the following reasons, the Court grants Defendant's Motion for Summary Judgment.
Plaintiff Henry Jackson was an employee of American Airlines, Inc. ("American") from July 22, 1993, to December 23, 2004. Plaintiff, a Black-American male who turned fifty-one years of age on January 23, 2004, began working for American as a building cleaner at O'Hare International Airport. In October 1995, Jackson was promoted to fleet service clerk. In March 2003, due to a reduction in force, he was transferred to American's Ground Services division to work as a fueler, where he remained until his discharge on December 23, 2004.
American discharged Plaintiff on the basis that he had intentionally falsified payroll authorization forms in order to get paid for time he did not work in violation of Rules 16 and 34 of American's Rules of Conduct. Jackson Dep. at 146, 179; Jackson Dep., Ex. 21. American's Rule 16 provides: "Misrepresentation of facts or falsification of records is prohibited." Rule 34 provides in relevant part:
Dishonesty of any kind in relations with the Company, such as theft or pilferage of Company property, the property of other employees or the property of others entrusted to the Company, or misrepresentation in obtaining employee benefits of privileges will be grounds for dismissal and where the facts warrant, prosecution to the fullest extent of the law.
The events leading up to Plaintiff's discharge occurred in 2004. Throughout his service as a fueler, Plaintiff was scheduled to work from 2:00 p.m. to 10:30 p.m., five days a week. Jackson Dep. at 40. In the fall of 2004, Plaintiff's immediate supervisor, Dianna Shirley ("Shirley"),*fn1 received a complaint from one of Plaintiff's crew chiefs that he sometimes did not answer calls for work assignments at the beginning of his scheduled shifts. Jackson Dep. at 65; Shirley Aff. at 3. In response to the complaint, Shirley reviewed Plaintiff's City of Chicago and American Airlines ID badge activity to see if Plaintiff was arriving on time.*fn2 She discovered that on multiple occasions Plaintiff's City of Chicago ID badge was being swiped by a guard at the entrance to the employee parking lot ("Post 1") only minutes before his American ID badge was being swiped at one of American's time clocks, which was located at least three miles away. Shirley Aff. at 3-4. Shirley then obtained a report from American's security department detailing Plaintiff's past City of Chicago badge activity. She also requested a report of Plaintiff's past American ID badge activity from her supervisor, George Thorne. After reviewing the reports, Shirley determined that on multiple days, "Plaintiff's City of Chicago and American ID badge activity indicated that he was at two distant places at virtually the same time and/or that he was swiping his American ID badge on American time clocks before he had his City of Chicago ID badge swiped by the guard at Post 1."*fn3 Shirley Aff. at 4.
Shirley then consulted with American's Human Resources department, who advised her to begin an investigation of Plaintiff pursuant to Article 29(f) of the collective bargaining agreement between American and the Transport Workers Union, to which Plaintiff belonged during his employment with American. Shirley Aff. at 13. Article 29(f) provides:
The Union does not question the right of the Company supervisors to manage and supervise the work force and make reasonable inquiries of employees, individually or collectively, in the normal course of work. In meetings for the purpose of investigation of any matter which may eventuate in the application of discipline or dismissal, or when written statements may be required, or of sufficient importance for the Company to have witnesses present, or to necessitate the presence of more than one Company supervisor, or during reasonable cause or post accident drug/alcohol testing as provided in Article 29(h), the Company will inform the employee of his right to have Union representation present. If the employee refuses representation, the supervisor's record will reflect his refusal. Shirley Aff., Ex. 4.
However, prior to the 29(f) investigation, another incident involving Plaintiff occurred. On November 24, 2004, Plaintiff did not swipe his American ID badge ("badge in") at the start of his shift. If an American employee fails to badge in on a particular day that he works, he is required to submit a payroll authorization form ("Auto TA slip") to his supervisor indicating his name, employee ID number, and starting and ending time, in order to receive payment for the time he worked. Plaintiff submitted an Auto TA slip for November 24, 2004, which Shirley authorized, indicating that he had arrived at work at 2:00 p.m. He did not indicate on the form and did not submit any other documentation showing that he arrived to work late that day. Jackson Dep. at 132. Plaintiff also did not tell Ms. Shirley that he had arrived late. Jackson Dep. at 156-57. Shirley stated that she did not know at the time she authorized his Auto TA slip that Plaintiff had arrived late for work on November 24, and "took him at his word" that he had arrived on time when she signed the slip. Shirley Aff. at 4. She later discovered, after reviewing the City of Chicago badge records, that Plaintiff had not had his badge swiped at guard Post 1 until 2:14 p.m. on November 24. Shirley Aff., Ex. 5. She also received a written statement from another American employee, Warren Mara, who stated that he saw Plaintiff arrive at the fueling center that day at 2:35 p.m. Shirley Aff., Ex. 7. Upon further investigation into Plaintiff's past badge activity, Shirley found that from February 10, 2004, to November 24, 2004, Plaintiff had neglected to badge in at least fourteen times. Shirley Aff. at 5.
On December 15, 2004, Shirley convened a 29(f) hearing to investigate the incident of November 24, 2004, and the other badge discrepancies. Plaintiff, Shirley, and Plaintiff's representative, Tom Mandziara, were present at the hearing. Shirley informed Plaintiff that he would be suspended from work with pay pending the results of the investigation. Following the investigation, Shirley concluded that Plaintiff had violated Rules 16 and 34 by falsifying company documents when he submitted payroll authorization forms requesting pay for time he did not work. Shirley Aff. at 6. After again consulting with Human Resources, Shirley decided to discharge Plaintiff. Plaintiff subsequently grieved his discharge, and the grievance was denied. Plaintiff appealed the denial of his grievance to American's Vice President of O'Hare Operations, Bernie DeSena. DeSena denied the grievance after a hearing in which Plaintiff's union president and vice president represented him. Plaintiff then met with his union board to discuss taking his case to arbitration. After an investigation, the union determined that Plaintiff's grievance lacked the merit to proceed to arbitration.
In his deposition, Plaintiff testified that Tom Mandziara, a non-black and younger employee, committed the same infraction as Plaintiff but was not discharged. Jackson Dep. at 209. Plaintiff did not submit any evidence -- for example, deposition testimony by Shirley or a human resources representative or documentation similar to that submitted by American in its defense -- in support of his contention that Mandziara committed the same infraction or violated the same rules as Plaintiff. Plaintiff also claimed that an employee named "Sosa" committed the same infraction and was discharged but was later "brought back." Jackson Dep. at 215-16. Plaintiff has not provided any evidence of Sosa's first name, his race, his age, or the nature of his alleged infraction. Jackson Dep. at 215-16.
On October 11, 2005, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging that American discriminated against him on the basis of age and race. On October 24, 2005, Plaintiff received a Dismissal and Notice of Rights from the EEOC, informing him that based upon its investigation the EEOC was unable to conclude that the information obtained established a violation of the statutes. Plaintiff then filed a complaint against American in federal district court alleging (1) that Defendant discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621-634, and under the provisions of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 211(b), 216, 217; and (2) that Defendant discriminated against him on the basis of race in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000(e) et seq. Plaintiff specifically argues that he was subjected to different standards of discipline and discharged because of his age, and that he was treated differently than other non- Black ...