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Malozienc v. Pacific Rail Services

March 20, 2009


The opinion of the court was delivered by: Morton Denlow United States Magistrate Judge

Magistrate Judge Morton Denlow


Plaintiff John S. Malozienc ("Plaintiff"), a current employee of Defendant Pacific Rail Services ("Defendant"), brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. Plaintiff alleges in a two-count First Amended Complaint that Defendant discriminated against him on the basis of his race (white) and in retaliation for filing a Charge of Discrimination with the Illinois Department of Human Rights ("IDHR"). The case is now before the Court on Defendant's motion for summary judgment on the merits as well as on Defendant's supplemental motion for summary judgment on the issue of whether Plaintiff's complaint was timely filed. The Court held oral argument on January 21, 2009 regarding Defendant's motion for summary judgment on the merits. At that time, Defendant informed the Court of a document Defendant received as part of additional discovery following this Court's August 19, 2008 denial of Defendant's motion for summary judgment on the issue of timeliness. Dkt. 73, 100. This new document was not available when the parties briefed and the Court ruled upon the timeliness issue. The Court will address the timeliness issue in light of this document below. For the following reasons, Defendant's motion for summary judgment on the merits is granted in part and denied in part; and Defendant's supplemental motion for summary judgment on the timeliness issue is denied.


The following facts regarding the merits of Plaintiff's suit are undisputed or presented in the light most favorable to the Plaintiff when contested. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). This Court examines the parties' submissions in accordance with the applicable Federal Rules of Civil Procedure, Federal Rules of Evidence and Local Rules.

A. Defendant's Business and the Union Positions Available to Plaintiff

Defendant is an intermodal contractor retained by railroads to load and unload large containers on and off rail cars. DS ¶ 1.*fn1 Plaintiff is currently employed as an operator at Defendant's facility in Willow Springs, Illinois ("the facility"). Id. at ¶ 2. Plaintiff is a member of Local 705 of the International Brotherhood of Teamsters ("Local 705"), which began representing the non-supervisory yard employees on January 1, 2002. Id. at ¶¶ 2-3. As an operator, Plaintiff's primary job function is to operate one of two heavy machines-the taylor (or "sideloader") and the overhead crane (or "lift"). Id. at ¶ 4; Pl. Ex. 3. Although Plaintiff typically operates either machine, Defendant assigns Plaintiff and its other union employees to various other jobs, depending on its needs on a given day. DS ¶ 5.

The collective bargaining agreement ("CBA") that governs Plaintiff's employment divides the union positions into three positions: (1) groundman; (2) hostler (truck) driver or spotter; and (3) operator. Id. at ¶ 6. The operator position is divided into three subcategories-taylor operators, crane operators and operators who are certified to operate both machines. Id. at ¶ 7. At the facility, the Terminal Manager ("TM") is the highest ranking on-site employee, followed by Assistant Terminal Managers ("ATM"). Id. at ¶ 11. Individuals in those two positions, as well as the Vice President of Human Resources, the Vice President of Operations and the Assistant Vice President of Operations are responsible for interpretation and administration of the CBAs. Id. at ¶ 12.

An employee who is certified to operate one or both of the machines receives a corresponding wage increase irrespective of whether the employee actually operated either machine on a given day. Id. at ¶ 10. From the time Plaintiff was hired in March 2001 until February 2005, employees certified to operate either the taylor or the crane-or both -received an extra $1.00 per hour in addition to their regular hourly wage rate. Id. at ¶ 8. In February 2005, this incentive was increased to $1.50 per hour if the employee could operate one of the two machines and to $3.00 per hour if the employee could operate both machines. Id. at ¶ 9.

B. Defendant's Knowledge of Legal Obligations

Defendant has a complaint procedure and a harassment policy. DR ¶¶ 1-2. It is disputed whether they were ever used with respect to Plaintiff's IDHR-related complaints. DR ¶¶ 1-2. The CBA contains a grievance procedure as well as non-discrimination and equal employment policies. PSAF ¶¶ 1-2; Pl. Ex. G at Nos. 6-9; Pl. Ex. K at p. 29-32, Articles 17 and 27, § 6. The CBAs do not address the prohibition of retaliation based on an employee's complaints of racial discrimination or harassment. PSAF ¶ 3; Pl. Ex. G at No. 15.

C. Defendant's Training and Certification Process for Operators

The evidence regarding Defendant's training and certification process is in dispute. Plaintiff presents evidence that from 2001 until 2004, Defendant had a formal training and certification practice for the taylor and crane because Defendant posted training sign-up sheets and conducted training based on seniority. PR ¶¶ 13, 20. To be certified, employees were required to train for at least eighty hours per machine. Id. Defendant denies such a formal process existed, asserting that from 2001 until it began posting sign-up lists in 2004, employees were expected to initiate the training and certification process by asking to observe an operator's work and operating the machine under an operator's supervision. DS ¶¶ 13-15, 20.

Defendant presents evidence that since 2004, it has relied upon all of the following factors when deciding whom to train: whether an employee signed up for training, seniority, attendance, work performance, training history, desire and teamwork. DS ¶¶ 21-22. Plaintiff, on the other hand, presents evidence that employees who sign up for training are required to receive it in seniority order. PR ¶ 21; Def Att. 13 (regarding 2006); Pl. Ex. B at ¶¶ 5-8 (regarding 2001 through 2003); Pl. Ex. D at 31-32 (no date); Pl. Ex. I (September 2003); Pl. Ex. J (May 2005); Pl. Ex. K, Art. 6 and 15; Pl. Ex. L (July 2004); Pl. Ex. M (February 2005); MOPR, Ex. B. To this end, Article 15 of the CBA provides: "Employee seniority, and not the equipment, shall prevail for all purposes and in all instances except promotions." Pl. Ex. K. Defendant contends training and certification occur only when a business need exists, whilePlaintiff alleges certain employees were trained at any time, upon request. DR ¶ 16; PR ¶ 16. Plaintiff alleges he was required to undergo a lengthier training schedule of 440 hours. PR ¶ 15. Defendant contends training requires a minimum of several months, but it can take years because staffing needs, workload, operator availability, and work schedules can cause significant breaks in training. Id.*fn2

Whether seniority is the determinative factor with respect to training under the CBAs is disputed. DR ¶¶ 30-31. Three CBAs have been in effect since Plaintiff was hired.*fn3 DS ¶ 29. Defendant contends the relevant CBAs did not require it to administer training on any equipment, including the taylor and the crane, in seniority order. DS ¶ 30. It further asserts employees responsible for interpreting and administering these CBAs have never required Defendant to train employees in seniority order. Id. Defendant contends seniority has never been the sole determinant governing training and certification during Plaintiff's employment, urging it has retained sole discretion over whom to train. Id. at ¶ 31. As discussed above, Plaintiff presents evidence that the CBA effective from January 1, 2002 through December 31, 2005 indicates seniority is the determinative factor. PR ¶¶ 21, 30; Pl. Ex. K, Art. 6 & 15; Def Att. 13; Pl. Ex. D at 31-32; Pl. Ex. I; Pl. Ex. M; MOPR, Ex. B.

Defendant states that, from 2001 to 2004, when a supervisor deemed an employee capable of operating the crane or taylor, the supervisor certified the employee as a crane or taylor operator, and the employee received a corresponding permanent wage increase. DR ¶ 17. While Plaintiff denies this, it is reasonable to infer an evaluation of the employee's skills was a prerequisite to certification. See Pl. Ex. I. Three to four supervisors worked on Plaintiff's shift throughout his employment. PR ¶ 18. It is undisputed that both African-American and Caucasian supervisors shared Plaintiff's shift and were able to certify employees. DR ¶ 18. Defendant contends that since 2005, employees training on either machine have signed a sheet with the date, number of hours trained, and signatures of the trainer, ATM and TM. DR ¶ 23.

D. Plaintiff's Training and Certification on the Taylor and the Crane

Plaintiff was hired in March 2001 as a groundman and spotter, at which time he received the contract wage rate for those positions. DS ¶ 25. Plaintiff has worked the third shift. PSAF ¶ 35. In or about October 2002, Plaintiff complained through his union that Defendant violated the seniority provisions of the CBA when it certified Coy Hardiman ("Hardiman') in the taylor. DR ¶ 26, 32. Hardiman was hired on September 30, 1998; resigned on February 2, 2000; and was rehired on August 22, 2001. DS at ¶¶ 27-28. He was certified on the crane on September 13, 1999, during his first period of employment, nearly a year and a half before Plaintiff was hired. DRPSAF ¶ 9; DS ¶ 8.

Although Plaintiff was not actually certified or qualified to operate either the taylor or the crane, Defendant gave Plaintiff and his African-American co-worker, Nate Pates ("Pates"), the contractual $1.00 per hour wage increase in October 2002 as if they were in fact so certified. Id. at ¶¶ 32, 77. This wage increase represents the increase Plaintiff would have received had he actually been certified to operate either or both of the machines. Id. at ¶ 33. Plaintiff and Pates are the only employees at the facility who have ever received this wage increase without first being certified to operate the taylor or crane. Id. at ¶ 34. As a result of this increase, in October 2002, Plaintiff received the maximum wage allowed under the CBAs. Id.

1. Taylor

Plaintiff was certified to operate the taylor on or about February 7, 2005. Id. at ¶ 34. In March 2005, Defendant increased the wage incentive from $1.00 to $1.50 per hour per machine and gave Plaintiff an additional $.50 per hour increase to bring his total incentive to $1.50 per hour. Id. at ¶ 36. Plaintiff was certified on the taylor before four of his non-Caucasian co-workers: Ricky Brown (an African-American certified on April 22, 2005); John Lopez (an Hispanic certified on March 28, 2005); Reidus Hands (an African-American certified on October 10, 2005); and Pates (an African-American certified on August 8, 2005). DS ¶ 78. Plaintiff contends Defendant's records show Pates was never certified on the taylor. PR ¶ 78. He also claims Pates is certified, but such documents are not in his personnel file. PR ¶ 23.

Plaintiff further asserts Victor Trout ("Trout") "was never forced to be certified on the taylor." PR ¶ 78. Whether the taylor is a less desirable machine to operate or on which to train is disputed. PSAF ¶ 5. Defendant contends this represents Plaintiff's subjective belief. DRPSAF ¶ 5. Plaintiff claims the taylor is less desirable because only one of the machines has air conditioning and the large lights on all of the machines attract bugs. PSAF ¶ 5. Whether Plaintiff was forced to train on the taylor, but Pates, Trout and Anthony Hodge ("Hodge") were not is disputed. DRPSAF ¶ 7. Defendant admits Plaintiff is certified to operate the taylor, but Trout and Hodge are not. Id. However, Defendant contends no employee, including Plaintiff, was ever forced to train on the taylor, citing evidence Plaintiff complained to his union because he thought it was unfair Defendant had not trained him on the taylor. See DRPSAF ¶ 7; Pl. Ex. A at 24-25; PR ¶ 26. Defendant also presents evidence it has never trained and certified Trout on the taylor despite Trout's requests. See DS ¶ 52. In addition, Defendant contends Plaintiff voluntarily chose to train and become certified on the taylor. DRPSAF ¶ 7; Pl. Ex. A at 34-36. While Plaintiff contends no non-Caucasian third shift employees operated the taylor, he presents only inadmissible evidence to support this assertion. PSAF ¶ 8.

2. Crane

Plaintiff claims he signed up to receive training on the crane in 2001, 2002, and in March 2004. PR ¶ 13; PSAF ¶ 24. It is reasonable to infer Defendant was aware Plaintiff signed up for such training in March 2004. See Pl. Ex. G at No. 3. From approximately June until October 2005, Plaintiff began crane training. DR ¶ 37. The parties dispute the reason why his training stopped in October 2005. Id. While Defendant contends it was entering its very busy holiday season, Plaintiff presents evidence that his training did not resume until November 2006. Id. at ¶¶ 37-38. Plaintiff was certified on the crane on November 27, 2006, and he immediately received the corresponding $1.50 per hour wage increase. Id. at ¶¶ 37-39. Plaintiff alleges had he been timely certified, he would have received the raise sooner. PR ¶ 39. Plaintiff also believes if he had been properly trained, certified and allowed to operate the machinery-as opposed to merely being paid for doing so-he would have earned his co-workers' respect. PSAF ¶ 32. Specifically, Plaintiff believes his co-workers would not have ridiculed or humiliated him because he observed they were upset he was paid for work he could not and did not perform. Id.

Plaintiff is the only employee on his or any shift who was certified on the crane since late 2003. DR ¶ 45.*fn4 Plaintiff was also the only employee who was trained and certified on the crane in 2006. Id. at ¶ 42.*fn5 Fourteen employees signed up for crane training in January 2006, six of whom were more senior than Plaintiff; eleven of whom are non-white; and none of whom had filed a charge of discrimination against Defendant with the IDHR or the Equal Employment Opportunity Commission ("EEOC"). Id. at ¶¶ 40, 41, 44. Plaintiff did not sign his name to the January 2006 sign-up sheet. Id. at ¶ 43. Although Pates was trained on the crane before Plaintiff, Pates is senior to him. See DRPSAF ¶ 6; Pl. Ex. G at Doc. JHP0063. Plaintiff presents evidence the crane is a more desirable machine than the taylor, but Defendant contends this is Plaintiff's subjective belief. PSAF ¶ 6; DRPSAF ¶ 6.

E. Victor Trout's Training and Certification on the Crane

The evidence shows Trout and Richard Hamm are the only African-American employees who are comparables for purposes of analyzing the training, certification and work assignment components of Plaintiff's race discrimination claim. Trout and Hamm are junior to Plaintiff while all other employees referenced by name are senior to Plaintiff. See Pl. Ex. G, at DHR 0012-13. Plaintiff does not point to Hamm as receiving favorable treatment; thus, the Court will focus solely on Trout when analyzing similarly situated employees' experiences with training, certification and work assignments. It is disputed whether Trout is the only African-American employee whom Plaintiff can identify by name as a comparable. DR ¶ 46. Initially, Plaintiff testified he did not remember the names of the other African-American employees over whom he has seniority, but he later named five African-American employees on his shift: Victor Trout (over whom Plaintiff has seniority), Al Steward, Pates, Titus Simons, and Hodge. PR ¶ 46; Pl. Ex. A, at pp. 164, 167-68.

Steward, Pates, Simons and Hodge are senior to Plaintiff.*fn6 See Pl. Ex. G, at DHR 0012-13. Plaintiff presents evidence that he and those five individuals, along with Hardiman, Robert Master, and Hamm, worked the same shift, reported to the same supervisors, and held the same position with the same responsibilities. PR ¶ 46.

Despite having less seniority than Plaintiff, Trout was trained on the crane before Plaintiff was so trained. DRPSAF ¶ 9. Defendant presents evidence that Plaintiff received the wage increase associated with crane certification on October 7, 2002, before Trout received his increase. DS ¶¶ 50-51; Pl. Ex. A at 24-29, 45-46. Defendant contends Trout was hired in October 2001 as a groundman and, shortly thereafter, he asked operator Hodge to train him on the crane. DS ¶ 47. Defendant alleges Hodge agreed to train Trout at Trout's request; over the next one to two years, Trout observed Hodge operate the crane and practiced operating it himself. Id. at ¶ 48.

Plaintiff alleges Trout was allowed to work in the crane when he should have been working on the ground. PR ¶ 48; Pl. Ex. A., at pp. 71-72. The significance of Trout's training is disputed. DR ¶ 48. Plaintiff contends Trout's training shows Defendant acted in a discriminatory manner by bypassing its practice and later stated procedure of performing crane and taylor training on a seniority basis by allowing African-Americans to be trained with a simple request. PR ¶ 48. Defendant underscores Plaintiff's admission that he did not sign the sign-up list in 2006 and was trained ahead of six employees who had greater seniority. DR ¶ 48. The Court notes Plaintiff signed up in 2004 and also claims he signed up in 2001 and 2002.

Defendant alleges Trout felt comfortable operating the crane by himself in November 2003 and asked a supervisor to consider him for certification. DS ¶ 49. That supervisor agreed and, after he observed Trout operate the crane, certified Trout on November 24, 2003. Id. at ¶ 50. Plaintiff does not know the identity of the supervisor who certified Trout. Id. at ¶ 80. Trout did not receive the $1.00 per hour wage increase until he was certified to operate the crane. Id. at ¶ 51. Defendant has never trained and certified Trout on the taylor despite his requests; thus, he only receives an extra $1.50 per hour instead of the extra $3.00 per hour Plaintiff receives. Id. at ¶ 52. Plaintiff's wage rate has always been equal to or greater than Trout's.Id. at ¶ 53.

F. Plaintiff's Disciplinary History

Plaintiff was disciplined both before and after he filed his IDHR charge. DR ¶ 81. Defendant contends Plaintiff was disciplined at least as much, and as often, before he filed his charge as he was afterward. DS ¶ 81. Although Plaintiff alleges neither his work performance nor attendance were issues with respect to Defendant's treatment of him, the cited evidence fails to support this assertion. PR ¶ 81; Pl. Ex. G at No. 29, No. Z.6 and Z.7. For example, while Defendant indicated "Complainant was NOT deficient in meeting the job requirements," it also listed deficiencies with respect to Plaintiff's attendance between 2001 and 2004. Pl. Ex. G at No. 29, No. Z.6 and Z.7 (emphasis in original). A number of disciplinary notices were issued with respect to Plaintiff before he filed his charge. DR ¶ 81; Pl. Ex. G at No. 5. Plaintiff does show three disciplinary actions were resolved in his favor through the grievance process-his November 2001 voluntary resignation and his suspensions in July 2005 and in 2006. Pl. Ex. G at No. 5, citing DHR055 and No. 33, citing JHP0004-0006; Pl. Ex. E at 74. In any event, only one disciplinary action issued before Plaintiff filed his charge was resolved in his favor through the grievance process. Pl. Ex. G at No. 5, citing DHR055; Pl. Ex. E at 74. In the three-year period prior to Plaintiff's filing of his charge, he was disciplined on at least eight occasions-including a termination subsequently rescinded only with the intervention of Plaintiff's union-for infractions involving unsatisfactory work performance, attendance, safety violations, and causing an accident. DS ¶ 82; Def. Att. 25.

G. Plaintiff's IDHR Charge

Plaintiff filed his IDHR charge on April 15, 2004.Def. Att. 19. In his charge and subsequent two amendments, Plaintiff alleges that (1) on April 15, 2004, he was not promoted to the position of crane operator on the basis of his race and that Defendant unlawfully promoted Trout instead of Plaintiff; (2) Defendant retaliated against Plaintiff when it issued him the two written warnings of July 30, 2004 and August 11, 2004; and (3) Defendant further retaliated against Plaintiff when ATM Richard Jones referenced Plaintiff's IDHR charge over the two-way radio system used by Defendant personnel and when JonMartin Wendt twice assigned hitch-pulling duties to Plaintiff. DS ¶¶ 67, 68, 69, 71; Def. Att. 19, 20, 21, 22.

Plaintiff filed an amended charge on September 1, 2004, alleging Defendant retaliated against Plaintiff when it issued him the two written warnings on July 30 and August 11, 2004. Def. Att. 20. Plaintiff filed a second amendment on September 8, 2004, alleging Defendant further retaliated against him when ATM Richard Jones ("Jones") referenced his charge over the two-way radio system and when ATM Jon Martin Wendt ("Wendt") twice assigned Plaintiff hitch-pulling duties. Def. Att. 21. At his deposition, Plaintiff testified that ATM Jones made the following statement over the company's two-way radio system in September 2004: "We don't want to discriminate against John Malozienc's chances of training on the taylor." DS ¶ 70. Plaintiff asserts Jones was never reprimanded or disciplined. PR ¶ 70. Plaintiff did not check the "continuing action" box on any of the three forms. Id. at ¶ 71. Plaintiff claims only African-American employees, and not any Caucasian employees, discriminated against him on the basis of his race. Id. at ¶ 75.

Whether Plaintiff complained to Defendant about race discrimination in advance of filing his charge is disputed. DR ¶ 66.Defendant contends Plaintiff never so complained, pointing to Plaintiff's testimony: "I never, myself, complained to the Company about racial discrimination." DS ¶¶ 66, 98-99; Def. Att. 5. Plaintiff presents evidence that he complained to Defendant about race discrimination through his union on at least one occasion, including an incident in or about May 2003, at which time Paul Garza advised Chris Smith that Smith was discriminating against Plaintiff on the basis of his race in favor of African-American third shift employees. PR ¶ 66; Pl. Ex. A, at 129-132; Dkt. 1, at ¶ 8. Plaintiff also presents evidence that he complained to Paul Garza ("Garza"), a union representative, about an African-American supervisor who treated a group of African-American employees better than Plaintiff. Id.; Pl. Ex. A, at pp.129-32.

H. Plaintiff's July 30 and August 11, 2004 Written Warnings

On July 30, 2004, Plaintiff received a written warning from ATM Wendt for failing to verify he moved the correct container to the correct rail track. DS ¶ 54. Plaintiff was issued a written warning on August 11, 2004 for failing to call in his August 4, 2004 absence. Id. Whether Plaintiff called on August 4, 2004 to report he was not coming to work is disputed. DRPSAF ¶ 25. Plaintiff alleges he called, but he presents only inadmissible evidence that the tower refused to accept his call. PR¶ 54.*fn7 At his deposition, Plaintiff had no recollection of the incidents that prompted the written warnings on July 30, 2004 and August 11, 2004; he now alleges he was not given the opportunity to review the warnings, but subsequently did so and now recalls the incidents. PR ¶ 55. Defendant presents evidence that Wendt and Walker issued the July 30 and August 11, 2004 written warnings, respectively. DR ¶¶ 54, 56.

TM Barry Tolchin 's name appears on the August 4, 2004 warning. DS ¶ 56. Defendant contends Tolchin did not actually issue or participate in administering the warning, but Plaintiff alleges he observed Tolchin's administrative assistant, James Walker, verbally provide Tolchin with information regarding warnings. Pl. Ex. B, ¶ 21. Pursuant to Defendant's procedure for issuing written warnings for attendance issues in 2004, Walker typed the warning based on information one of Plaintiff's supervisors provided to him. DS ¶ 57. Walker typed Tolchin's name on many written warnings regarding attendance issues, even though Tolchin was not involved in issuing these warnings and did not work on Plaintiff's shift. Id. at ¶ 58. Plaintiff presents evidence that Walker did not, and does not, work on his shift. PR ¶ 58. Tolchin's name appears on the written warnings regarding attendance problems that have been issued to many employees, none of whom have filed an IDHR or EEOC charge. DS ¶ 59. Wendt has issued multiple written warnings for infractions similar to those for which Plaintiff was written up on July 30, 2004, and none of those employees have filed an IDHR or EEOC charge. Id. at ¶ 60.

Defendant asserts Wendt and Walker did not learn of Plaintiff's IDHR charge until at or around December 2005, at which time Plaintiff filed his Complaint. DS ¶¶ 61, 91; Dkt. 1. This statement is undisputed as to Wendt. PR ¶¶ 61, 91. With respect to Walker, Plaintiff presents evidence that in September 2004, Tolchin told Walker in Plaintiff's presence to provide Plaintiff with a copy of his personnel file, "or else the Illinois Department of Human Rights and its attorneys would enforce the request." PR ¶ 91; Pl. Ex. B at ¶ 31. Thus, Plaintiff presents evidence that Walker became aware of Plaintiff's charge as of September 2004. Ultimately, however, Plaintiff does not present evidence that either Wendt or Walker were aware of his charge at the time of these two written warnings, and Plaintiff suffered no loss of pay as a result of these actions. PR at ¶ 62.

I. Plaintiff's Work Assignments on August 26 and August 27, 2004

Assignments for all union employees, including Plaintiff, are made on a day-to-day basis. DS ¶ 89. On August 26 and August 27, 2004, Defendant assigned him to perform hitch-pulling duties, which require an employee to assist in the hoisting of a large container using a hitch. DS ¶ 63; DR ¶ 90. All employees of all job classifications were assigned all of the jobs about which Plaintiff complains, including hitch-pulling and grounding. Id. at ¶¶ 88, 90. Plaintiff can be asked to act as a groundman on any given day, and he has done so both before and after he filed his charge. Id. at ¶ 102. While Defendant contends job assignments at the facility, including to the taylor and crane, are not made on the basis of seniority (DS ¶ 79), Plaintiff presents Article 15 of the CBA to show seniority governs. Pl. Ex. K.

The parties dispute the basis upon which hitch-pulling duties are assigned, as well as the reasons why Plaintiff was assigned to perform those duties on August 26 and August 27, 2004. DR ¶¶ 64, 90. Defendant contends that at all relevant times, including in 2004, it has assigned hitch-pulling and all other duties based on its business needs during a shift-not on the basis of seniority. Id. Which employees are assigned hitch-pulling duties is also disputed. Defendant contends operators, groundmen, spotters and hostler drivers all engage in such duties when necessary. Id. at ¶ 65. Defendant asserts numerous African-American employees and non-charge-filing employees have been, and are regularly, assigned hitch-pulling duties by each of the supervisors on Plaintiff's shift, including in 2004. Id. However, Plaintiff presents evidence to demonstrate seniority governs these assignments. PR ¶ 90. Specifically, Plaintiff points to Articles 6 and 15 of the CBA. See Pl. Ex. K at Articles 6, 15.

Plaintiff claims Defendant's practice was to assign junior employees to perform hitch-pulling duties, but he was assigned those duties even when junior employees were available. PR ¶ 64; Pl. Ex. A at 123. Plaintiff also contends if he were certified as an operator, he would have worked as a groundman less frequently. PR ¶ 64; Pl. Ex. A at 32-33, 178. In essence, Plaintiff's contention is he was assigned to hitch-pulling duties more often than junior employees because his operator certification was withheld. Id. Walker's testimony supports Plaintiff's contention: "If you're operating that particular day, I'm not going to pull you out of a crane and ask you to pull hitches." Pl. Ex. E at 95.

J. Plaintiff's Allegations Regarding Misuse of the Company Radio

Plaintiff alleges African-American employees ridiculed him in person after he soiled himself. DRPSAF ¶ 28; see also Dkt. 1. The comments Plaintiff references in his First Amended Complaint were made by anonymous co-workers over Defendant's two-way radio system. DS ¶ 83; Dkt. 21. The comments were crude, sophomoric grunts, groans and jokes mimicking Plaintiff with respect to two circumstances when he defecated on himself in 2001 and 2003. DS ¶ 83. Plaintiff alleges Defendant's policies prohibit the misuse of radios, including the manner in which the radios were used to harass Plaintiff. PR ¶ 83.

While it is undisputed that no employee was ever reprimanded or disciplined with respect to the misuse of the radios, whether supervisors engaged in these radio communications and whether it was possible to reprimand the individuals are disputed issues. DS ¶ 83-84; PR ¶ 83-84. Defendant contends no supervisors engaged in the behavior and further argues because the noises were made by unidentified, anonymous co-workers, it was impossible to discipline anyone. DS ¶ 84. While Plaintiff does not know whether supervisors engaged in this behavior, he contends it is also impossible for Defendant to know given its claim unidentified individuals made the noises. PR ¶ 84. Plaintiff also asserts Defendant could have addressed the issue at one of the daily safety meetings with the small number of employees who worked on the third shift. Id. The parties also dispute when the comments and noises were made over the radio.DS ¶ 86; PR ¶ 86. Plaintiff avers they occurred before and after he filed his charge. Id. Plaintiff complained to Craig Zarnecki ("Zarnecki") about the issue; he was satisfied with Zarnecki's response only to the extent the comments and noises were no longer made to his face; he was dissatisfied the conduct continued--and still continues--over the radio. PR ¶ 86-87.

Other employees were teased over the radio by their co-workers, and this type of radio horseplay was and is common, even though it is not permitted. DS ¶ 85. Plaintiff presents evidence that radio safety was an important concern for Defendant. PR ¶ 85. Plaintiff also argues Jones called meetings of third shift employees to threaten group punishment if employees did not stop whistling at other employees over the radio. PR ¶ 85. According to Plaintiff, the whistling stopped following Jones' threats, but Jones never addressed the noises directed at Plaintiff. Id.

K. Plaintiff's Additional Allegations Regarding Race Discrimination

Plaintiff alleges African-American employees received better treatment.In Summer 2001 and February 2003, Plaintiff observed African-American supervisors Maceo Cotton ("Cotton"), Everett*fn8 and Chris Smith pick up African-American employees in the van during extremely cold weather and give them breaks, to the exclusion of Caucasian groundmen. PSAF ¶ 11. Whether African-American supervisors allowed African-American employees to take longer breaks than Plaintiff was allowed to take is disputed. DRPSAF ¶ 13. Plaintiff claims in October 2003, he observed an African-American supervisor allow African-American employees to remain on break after Plaintiff was ordered to return to work. PSAF ¶ 13; Pl. Ex. A at 126-28.*fn9 Plaintiff alleges he was threatened with a write-up for taking a coffee break at that time. PSAF ¶ 13. African-American employees were not allowed longer breaks as of approximately late 2004 or early 2005. Pl. Ex. A at 128-29. Plaintiff believes non-Caucasian employees used their vacation days easily, while he complains he was given a difficult time by at least one non-white supervisor and Walker. PSAF ¶ 15. However, this is unsupported by the evidence and amounts to mere speculation, as Plaintiff lacks personal knowledge about his co-workers here.

Whether African-American supervisors permitted African-American employees to refer to Caucasian employees as "hillbillies" or "rednecks" is disputed. DRPSAF ¶ 12. Plaintiff alleges such supervisors failed to admonish the employees in Plaintiff's presence. Id. Cotton used the term "hillbilly" when speaking to Caucasian employees. PSAF ¶ 14. Defendant contends such a term is not offensive to Plaintiff, however, because Plaintiff testified he did not believe the title of the television show "The Beverly Hillbillies" is offensive. DRPSAF ¶ 14; Pl. Ex. A at 78.

Plaintiff alleges he complained to Walker that Pates was being treated more favorably than he was, but Walker told Plaintiff not to worry about Pates, but to "worry about your own kind." DRPSAF ¶ 10. Walker and Pates are African-American. PSAF ¶ 10. Plaintiff asserts "Paul Garza was pretty sure that Plaintiff was not the only white employee against whom Defendant discriminated, including an incident involving white employee Perry Bersaw."*fn10 PSAF ¶ 17.*fn11 Plaintiff claims Walker told him he should quit. PSAF ¶ 16. Plaintiff reports it seemed as if Walker harassed white employees. DRPSAF ¶ 16; Pl. Ex. A at 141. Plaintiff claims Cotton, an African-American supervisor, followed him when he used the washroom, which commenced in 2002 and increased in frequency after he filed his charge. PSAF ¶ 29.

Whether Defendant maintains its records poorly is disputed. DRPSAF ¶ 33. Plaintiff claims Defendant misidentifies employees' races and fails to specify the machines on which employees are certified. PSAF ¶ 33. Plaintiff contends "Defendant has also double-certified black operators, resulting in double raises," indicating "Charles Waller is one example." PSAF ¶ 36. Defendant admits Waller is certified on the taylor and crane and is entitled to the corresponding wage increases. DRPSAF ¶ 36. See Pl. Ex. B at ¶ 32 and attachments 2394, 2475, and 2852. Plaintiff presents evidence that on June 19, 1997, Defendant determined Waller was a qualified ...

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