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Hegwood v. Canadian Pacific Railway

April 3, 2009

STEVEON HEGWOOD, PLAINTIFF,
v.
CANADIAN PACIFIC RAILWAY, DEFENDANT.



The opinion of the court was delivered by: Nan R. Nolan United States Magistrate Judge

Judge Nan R. Nolan

MEMORANDUM OPINION AND ORDER

Plaintiff Steveon Hegwood has filed suit charging his former employer, Canadian Pacific Railway ("CPR"), with race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and CPR now seeks summary judgment on all of Mr. Hegwood's claims. For the reasons explained here, the motion is denied.

BACKGROUND

CPR is a railroad company operating in the United States and Canada. Mr. Hegwood (African-American) worked at CPR's Bensenville, Illinois rail yard from 1978 until he was discharged on March 24, 2006. (Def. Facts ¶¶ 3-5.)*fn1 At the time of his discharge, Mr. Hegwood held the position of Freight Carman/Welder/Truck Driver, and he also had been working as a member of the derailment crew since 1998. (Id. ¶ 6.)

A. The Collective Bargaining Agreement

CPR is a unionized employer with collective bargaining agreements governing the terms and conditions of employment for non-management employees. At all relevant times, Mr. Hegwood was a member of the Brotherhood of Railway Carmen Division of the Transportation Communications International Union ("TCIU"), and was subject to the collective bargaining agreement between TCIU and CPR (the "TCIU Agreement"). (Id. ¶¶ 7, 8.) The TCIU Agreement governs, among other things, assignments, seniority and discipline, and it contains an exclusive grievance and arbitration procedure guaranteeing employees a full investigative hearing for any formal disciplinary action taken by CPR. (Id. ¶¶ 9, 10.) The grievance investigations allow employees to (1) testify on their own behalf; (2) have union representation; (3) call and cross-examine witnesses; (4) provide documentary evidence; and (5) appeal any disciplinary decision rendered to final resolution before a three-person arbitration panel with a Neutral Chair selected through the National Mediation Board. (Id. ¶ 10.)

B. CPR's Workplace Policies

In addition to the TCIU Agreement, CPR has written policies governing issues such as Equal Employment Opportunity/Anti-Discrimination/Affirmative Action; Workplace Harassment; and Violence in the Workplace. CPR distributes these policies, which outline procedures for reporting discrimination and harassment, to all new employees, and mails them additional copies every year thereafter. (Id. ¶¶ 11-13.) The Violence in the Workplace policy defines a "violent act" as "one which causes or is likely to cause physical harm to persons." A "threat" may include, but is not limited to "any act, gesture or statement that may reasonably be interpreted as potentially violent." (Ex. 8 to Def. Mem., at 2.) The policy provides that "[a]cts of violence are unacceptable, and where identified will lead to discipline up to and including termination and/or criminal charges." (Def. Facts ¶ 14.)

On January 2, 1996, CPR implemented a Positive Behavior & Performance Development ("PB&PD") Policy creating a two-phase procedure for addressing employee performance and behavior issues. The first phase consists of informal and formal coaching and counseling between the supervisor and the employee. In the second phase, formal discipline, CPR conducts a hearing (called a "formal investigation") to determine the facts and circumstances surrounding an employee's alleged violation of Company rules or procedures. The hearing is conducted in accordance with the terms of the employee's collective bargaining agreement and requires that a "conducting officer" listen to witness testimony; observe witness demeanor; make credibility determinations regarding witnesses; and consider any documentary evidence. At the conclusion of the formal investigation, the conducting officer prepares a written recommendation based on the hearing testimony and the employee's past discipline and performance history. The conducting officer is not, however, the final decisionmaker as to what discipline is imposed, if any. (Id. ¶¶ 15-18.)

C. Mr. Hegwood's Performance

CPR claims that Mr. Hegwood's performance problems date back to March 1982 when he was terminated for fighting with another employee on company property. (Id. ¶ 20; Service Record, Ex. 10 to Def. Facts.) Mr. Hegwood first objects that Exhibit 10 constitutes inadmissible hearsay and should be stricken. The court disagrees. CPR has submitted an affidavit from Terri Revell, CPR's Employee Relations Advisor, who has confirmed that disciplinary records such as Mr. Hegwood's Service Record are (1) maintained in employee personnel files; (2) created at or near the time of the occurrence "by or from information transmitted by a person with knowledge of the events in question"; and (3) kept in the ordinary course of regularly conducted business activity. (Revell Aff., Ex. C to Response to Motion to Strike.) CPR's Exhibit 10, consisting of Mr. Hegwood's Service Record, thus qualifies as a business record and is admissible under FED. R. EVID. 803(6) and 902(11). See Thanongsinh v. Board of Educ., 462 F.3d 762, 777 (7th Cir. 2006); Arrington v. La Rabida Children's Hosp., No. 06 C 5129, 2008 WL 5388717, at *1 (N.D. Ill. Dec. 22, 2008). That said, the court does agree with Mr. Hegwood that the Service Record contains no indication as to the reason for his termination in 1982. This portion of the motion to strike is therefore granted.*fn2

In any event, a Public Law Board reinstated Mr. Hegwood on November 11, 1983 "with seniority rights unimpaired." (Def. Facts ¶ 20; Ex. 10 to Def. Facts, at SOO 00004.) Between 1993 and 2003, Mr. Hegwood received at least six warnings for issues such as excessive absences and substandard work performance. (Id. ¶ 21; Ex. 10 to Def. Facts.) Then on September 17, 2003, Mr. Hegwood became angry when his supervisor, James Selover (Caucasian), directed him to perform an assignment despite the existence of an allegedly "hazardous condition," which resulted in Mr. Hegwood sustaining a fall. (Id. ¶ 22; Pl. Fact Resp. ¶ 22; Pl. Facts ¶¶ 7, 8.)*fn3 Mr. Hegwood went to Mr. Selover's office to confront him about the incident, and stood in the doorway using an "elevated" voice. Mr. Hegwood admits that he "came on pretty strong" and that Mr. Selover felt threatened by his behavior. (Id. ¶ 22; Pl. Fact Resp. ¶ 22; Hegwood Dep., at 81-82.)

Mr. Selover reported the incident to his manager, Mike Urfer, stating that he thought Mr. Hegwood was going to hit him. Mr. Selover also reported that Dan Rossi, another CPR employee, had witnessed Mr. Hegwood's threatening behavior. (Pl. Facts ¶¶ 10, 11.) Mr. Urfer did not believe that Mr. Hegwood would actually hit Mr. Selover, but as a result of this incident, CPR initiated the formal discipline process under the PB&PD policy. Mr. Hegwood and Mr. Selover both testified at a hearing on October 29, 2003; Mr. Rossi was not called as a witness. (Id. ¶ 11; Ex. C to Pl. Facts.) On November 12, 2003, Mr. Hegwood received a 10-day suspension for "inapprop[riate] comments/threatening behavior" towards his supervisor. (Def. Facts ¶ 23; Ex. 10 to Def. Facts, at SOO 00008.) Mr. Hegwood appealed his suspension to a Public Law Board, which found that he was "abrupt, loud, swearing and aggressive" during the encounter, and that "there was . . . no excuse for [his] behavior." The Board reduced Mr. Hegwood's suspension to five days, but warned that "there are correct ways to handle such situations [and Mr. Hegwood] had better find these ways in the future if he values his employment." (Id. ¶ 24; Ex. 11 to Def. Facts, at 2-3.)

On November 1, 2004, Mr. Hegwood was disciplined for excessive absenteeism and failure to complete his assigned tour of duty on five separate occasions. (Id. ¶ 26.) Mr. Hegwood waived the formal investigation and received a five-day suspension. According to the PB&PD policy, an employee who waives his right to a hearing "must accept responsibility for the violation." (Id.; Ex. 9 to Def. Facts, at 9.)

In July 2005, Mr. Hegwood was disciplined again for unexcused tardies, absences and failure to protect his assignment in accordance with job requirements. Specifically, Mr. Selover informed Service Area Manager James P. Johnson that Mr. Hegwood had been absent and tardy on several dates in April and May 2005 without giving prior notice (Pl. Facts ¶ 12.) At a July 14, 2005 investigative hearing into the matter, however, Mr. Selover testified that, in fact, Mr. Hegwood did give him advance notice of all of the absences and tardies at issue with the exception of two, which occurred when Mr. Selover was not at work. (Id. ¶ 13; Def. Fact Resp. ¶ 13; Ex. E to Pl. Facts, at SOO 0385.)*fn4 Mr. Hegwood tendered a closing statement claiming that the investigation "could be [perceived] as harassment, biased discrimination in an effort to unfairly, adversely affect my employment." He further stated that if he could not achieve a satisfactory resolution, "I am putting all of you on notice that I plan to notify my attorney and EEOC to initial [sic] action to resolve this problem for me immediately." (Ex. E to Pl. Facts, at SOO 000400-01; Pl. Fact Resp. ¶ 40.) Mr. Johnson reviewed the hearing transcript when he received it in 2005, but took no action relating to Mr. Hegwood's complaint of discrimination. (Pl. Facts ¶¶ 37, 38; Def. Fact Resp. ¶¶ 37, 38; Johnson Dep., at 34.)

On August 1, 2005, Mr. Hegwood was suspended for 10 days in connection with the allegedly unexcused absences and tardies, though it appears this was subsequently changed to "no discipline." (Def. Facts ¶ 27; Pl. Fact Resp. ¶ 27; Johnson Dep., at 55.) Mr. Hegwood blamed Mr. Selover for the suspension, noting that Mr. Selover complained of absences he knew were justified, including a bereavement day following the funeral of Mr. Hegwood's mother, and a weekend when Mr. Hegwood was out of town visiting his wife. (Pl. Facts ¶¶ 16, 17.) In Mr. Hegwood's view, Mr. Selover was always "keep[ing] a close eye" on him. (Def. Facts ¶ 27.)

D. Mr. Hegwood's Discharge

One of Mr. Hegwood's responsibilities at CPR was to complete and submit certain paperwork in a timely fashion to ensure proper train car movement in the rail yard. (Id. ¶ 28.) On January 12, 2006, Mr. Selover approached Mr. Hegwood in the break room following a routine safety meeting and asked him to submit some overdue paperwork. (Id.) Instead of responding to Mr. Selover, Mr. Hegwood said nothing and intentionally ignored him. Mr. Selover became angry, at which point Mr. Hegwood started walking out of the break room and into the locker room. (Id. ¶ 29; Hegwood Dep., at 59-61.) Mr. Hegwood claims that he only walked away after Mr. Selover spoke to him in a "very degrading manner" and tried to provoke an incident. (Pl. Fact Resp. ¶ 29.) Mr. Hegwood also ...


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