The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff Andre Abron has filed a five count amended complaint against his former employer, Soo Line Railroad Co., d/b/a Canadian Pacific Railroad, alleging racial and disability discrimination in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e, and Title I of the Americans with Disabilities Act, 42 U.S.C. § 12117. Defendant has moved for summary judgment on all counts. Because the undisputed evidence demonstrates that defendant's employment was terminated because he refused to come to work, defendant's motion is granted.
Defendant hired plaintiff as a conductor in November 2004. As a conductor he was responsible for supervising an ensuring the safe movement of the trains. In March 2006, plaintiff was removed from service after testing positive for cocaine. Plaintiff elected to take a minimum 60 days suspension to participate in defendant's Employee Assistance Program ("EAP"). Plaintiff successfully completed the EAP and was approved to return to work on May 15, 2006. Plaintiff returned to work as a conductor and his job duties did not change.
In May 2006 plaintiff complained to Blane Marien, then Manager of Operations at defendant's Bensenville Yard, that after plaintiff spoke on the radio used by employees, other unidentified employees made drug-related comments such as "crack" and "rocks for sale." It is undisputed that at least up to 50 persons had access to and could be using the radio at any time. Marien notified Terri Rovell, defendant's Employee Relations Advisor, and instructed a yard manager to listen to and transcribe the tape that recorded the transmission. The transcription indicated that someone did say "rocks for sale" after plaintiff spoke. The voice was disguised and Marien could not identify the speaker. He then interviewed six individuals who were working in the yard and known to have been on the same radio channel on the day in question. Only one of the six persons heard the comment, but that employee did not know who made the remark. All six employees were cautioned that such comments violated the company's harassment policy and any such comments should be reported immediately.
On May 26, 2006, plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that on May 12 and 23 he "became aware that [defendant] shared medical information relevant to my disability with co-workers." The EEOC issued a right to sue letter on June 7, 2006. Plaintiff never filed suit on this charge.
In June 2006 plaintiff began to take intermittent Family and Medical Leave Act ("FMLA") leave to care for a sick uncle. He exhausted his FMLA leave on November 15, 2006, although he claims to have requested additional leave as a result of his medical condition resulting from the harassment at work. Despite the lack of FMLA leave, plaintiff was absent eight days in the following three week period. Finally, on December 9, 2006, plaintiff informed defendant that he would be off work until further notice and that he would provide a doctor's note to substantiate the need for leave.
Earlier, on November 20, 2006, in the middle of his intermittent FMLA leave, plaintiff had complained that while making a radio transmission he heard the word "drugs." Marien again directed someone to transcribe the radio transmission for the day in question. This time, however, the transcriber did not hear anyone mention the word "drugs" or make any other remark that might be directed toward plaintiff. Nonetheless, defendant put out a company wide "Notice from the Service Area Manager" or "SAM Notice" stating that management had become aware of incidents involving "disparaging remarks and mocking, taunting, directed at or about co-workers . . ., and that this type of behavior is not accepted and will not be tolerated . . .."
After plaintiff stopped coming to work on December 9, defendant sent him three notifications over a one month period indicating that plaintiff was required to submit documentation substantiating his absence from work. Plaintiff failed to submit anything from his doctor, and in fact failed to respond in any way to the notices. In response to the instant motion for summary judgment, plaintiff admits that he never provided the necessary documentation, but claims that due to scheduling problems his doctor was unable to do so for over a month. He has provided nothing from his doctor, however, to support this statement.
On January 24, 2007, defendant, in accordance with its Collective Bargaining Agreement ("CBA") with the United Transportation Union, gave plaintiff notice of a fact finding investigation and hearing set for January 31, 2007, in connection with plaintiff's failure to supply the required medical information. Under the CBA defendant was required to hold such a hearing prior to issuance of any discipline. Employees can be represented at the hearing by their union representative and have the opportunity to present testimony, exhibits and witnesses, and to cross examine the company's witnesses. If a violation is found, the hearing officer recommends discipline in accordance with the Positive Behavior and Performance Development Policy. The employee has the opportunity to appeal any discipline.
Plaintiff did not appear at the hearing and failed to contact anyone to indicate that he would not be there. Plaintiff's union representative testified at the hearing that plaintiff did not inform him that plaintiff would not be at the hearing. At a break in the hearing, plaintiff's union representative called plaintiff, who informed the representative that he could not attend because his wife was sick. In his deposition in the instant case plaintiff claims that his union representative lied and that plaintiff had called the representative to request a continuance prior to the start of the investigation.
As a result of the hearing, plaintiff's employment was terminated. There is nothing in the record to indicate that he appealed that decision.
Plaintiff claims that on July 6, 2007, he interviewed with Diana Payton for a job with METRA (the Chicago Area Commuter Rail Line), and Payton told him that as long as defendant is even listed on his resume he will have a problem getting a railroad job or any other job. Plaintiff also claims that Payton told him that she knew he had a legal problem while employed by defendant, and that she could find out about his employment at defendant because one of METRA's human resources ...