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Dean E. Paulcheck v. Union Pacific Railroad ) Company

November 22, 2011


The opinion of the court was delivered by: Judge Edmond E. Chang


Plaintiff Dean Paulcheck alleges that his employer, Defendant Union Pacific Railroad Company, discriminated against him in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq.*fn1 Specifically, Paulcheck claims that Union Pacific did not promote him because he was over forty years old. Union Pacific moves for summary judgment. R. 68. For the following reasons, Union Pacific's motion is granted.


In deciding the summary judgment motion, the Court views the evidence in the light most favorable to Paulcheck. Paulcheck began his career at Union Pacific in 1978.

R. 70, Def.'s Stmt. of Facts (DSOF) ¶ 3. After working as a locomotive engineer for almost thirty years, Paulcheck applied to Union Pacific's Operations Management Training Program. Id. ¶¶ 3, 9. The Training Program is a mixture of classroom and field training that prepares Union Pacific employees for managerial positions in the company's operating department. Id. ¶¶ 4, 8, 14. The Training Program accepts applications from all three of Union Pacific's regions. Id. ¶ 5. Paulcheck applied for the Training Program through Union Pacific's Northern Region. Id. ¶ 9. If a Northern Region employee is accepted into the Training Program and successfully completes the Program, he is placed in a vacant Manager of Yard Operations ("Yard Manager") position. Id. ¶ 25. However, there is not always a vacant Yard Manager position immediately available for every trainee who completes the Training Program. Id. ¶¶ 28, 29. In those cases, the employee continues to work as a trainee until a Yard Manager position opens up, or if the situation dictates (like the 2009 recession), may be placed in a completely different department (e.g., finance, marketing, or administration) because there are no Yard Manager positions available. Id. ¶ 28.

Pat Kocour, the Human Resources Director for the Northern Region, is responsible for interviewing and hiring Training Program applicants from the Northern Region. Id. ¶ 5. In late 2006, Kocour interviewed Paulcheck for the Training Program. Id. ¶ 9. At the interview, Paulcheck told Kocour that his wife has severe degenerative spinal disease and requires special medical care. Id. ¶ 10. Thus, if accepted to the Program, Paulcheck would need to be assigned to a location where his wife could receive the necessary medical treatment. Id. Jeff Rafferty, Cameron Scott, and Dan Witthaus also interviewed Paulcheck for a position in the Training Program, but the parties dispute whether these interviews occurred on the same date as the Kocour interview, or after. Pl.'s Resp. DSOF ¶ 9. In any event, Kocour extended Paulcheck an offer to join the Training Program. DSOF ¶¶ 12, 13. Paulcheck accepted the offer, and his title changed from engineer to Transportation Associate. Id. ¶ 14. Union Pacific sometimes refers to Transportation Associates as "operations management trainees" or "OMTs." R. 81-11, Pl.'s Exh. JJ (Burchfield Dep. 9:18-20). The Court will use the term Transportation Associate to refer to Paulcheck's position during and after his participation in the Training Program.

In January 2007, Paulcheck reported to Omaha, Nebraska for the Training Program's one-week orientation. DSOF ¶ 15. After orientation, Paulcheck began his field training in North Platte, Nebraska. Id. Paulcheck and Kocour discussed the North Platte location at Paulcheck's Training Program interview, and Paulcheck was agreeable to being assigned to North Platte. Id. ¶ 11. However, once Paulcheck arrived in North Platte, he discovered that there was not an acceptable physician for his wife within 200 miles of the Union Pacific training site. Id. ¶ 17. Paulcheck requested a transfer, and Kocour worked with Human Resources for the Training Program to relocate Paulcheck from North Platte to Council Bluffs, Iowa. Id. ¶ 19. Kocour explained to Paulcheck that the move to Council Bluffs would only be temporary because there was no permanent managerial position available in Council Bluffs. Id.

¶ 22. In April 2007, Paulcheck moved to Council Bluffs. Id. ¶ 21.

Paulcheck completed the Training Program shortly after moving to Council Bluffs, but Union Pacific was not able to immediately place him into a Yard Manager position. Id. ¶¶ 29, 30. Thus, Paulcheck continued to work as a Transportation Associate in Council Bluffs, and performed the duties of a Yard Manager. Id. ¶ 29. In September or October 2007, Paulcheck called Kocour and expressed his desire to find a permanent managerial position. Id. ¶ 30. Paulcheck told Kocour that if a position did not become available soon, he would consider "going back in the ranks" and return to his position as a locomotive engineer. Id. At the time, Paulcheck was renting a house in Council Bluffs and commuting over six hours to see his wife, who still lived at their home in Wonder Lake, Illinois (a town around 60 miles northwest of Chicago). DSOF

¶ 30; R. 70-1, Def.'s App. at 10 (Paulcheck Dep. 38:13-19). Paulcheck's wife stayed in Illinois because Paulcheck's position in Council Bluffs was only temporary, and it was too difficult for her to switch doctors for a short and indeterminate period of time. Paulcheck Dep. 45:10-23. Kocour told Paulcheck that Kocour would work on finding him a new position. DSOF ¶ 30.

In November 2007, Kocour arranged for Paulcheck to transfer to Union Pacific's Commuter Operations department located in Chicago, Illinois. DSOF ¶ 32. Again, this was a temporary position, and Paulcheck continued to work as a Transportation Associate. Paulcheck Dep. 59:4-18. Around this time, Paulcheck submitted a few applications for Manager of Terminal/Train Operations ("Terminal Manager") positions. DSOF ¶¶ 42, 67, 70. These applications will be discussed in greater detail below. For now, it is sufficient to note that Terminal Managers are senior to Yard Managers. Id. ¶ 26. According to the Terminal Manager job description, one to two years of experience as a Yard Manager is desired before an employee will be placed in a Terminal Manager position. See R. 70-1 (Pl.'s App. at 37). Witnesses for Union Pacific, including Kocour, testified that someone who completes the Training Program must work as a Yard Manager before being promoted to Terminal Manager. DSOF ¶¶ 24-25. Paulcheck admits that he was told that Transportation Associates who complete the Training Program progress from being Associates, to Yard Managers, to Terminal Managers, and that an Associate must work as a Yard Manager before being considered for a promotion to Terminal Manager. Id. ¶¶ 25-26.

In January 2008, a Yard Manager position became available at Union Pacific's Proviso Yard location in Northlake, Illinois. PSOF ¶¶ 13-14. The superintendent of Proviso Yard, Rod Richardson, interviewed Paulcheck for the position. DSOF ¶ 33. Paulcheck was offered the Yard Manager position. Id. ¶ 34. After receiving the job offer, Paulcheck called Kocour and told her that he was concerned that the commute was too long. Id. Paulcheck, who had moved back into his home in Wonder Lake, would have to travel one hour and forty-five minutes each way to get to and from Proviso Yard. Id. Kocour looked into whether Paulcheck qualified for a relocation package, but Paulcheck did not. Id. ¶¶ 35-36. In February 2008, Arnold Robinson, the Superintendent of Commuter Operations, called Paulcheck and told him that he must either accept the Yard Manager position at Proviso Yard, or exercise his seniority and return to his position as a locomotive engineer. Id. ¶ 37. Robinson explained that this was a directive from the Vice President of the Northern Region, Randy Blackburn. Id.; Def.'s App. at 75. After conferring with his wife, Paulcheck decided not to accept the Yard Manager position because the commute was too long. DSOF ¶ 38. Paulcheck returned to his position as a locomotive engineer. Id. ¶ 39.

In August 2008, Paulcheck filed a charge of age discrimination with the United States Equal Employment Opportunity Commission through the Illinois Department of Human Rights. R. 62 (Compl.) ¶ 9. The charge alleged that Union Pacific discriminated against Paulcheck when it failed to promote him to any of the managerial positions he applied for during and after his participation in the Training Program. R. 62-2, Pl.'s Exh. A attached to Compl. (EEOC Charge). In April 2009, the EEOC issued a right-to-sue letter to Paulcheck, and this action was filed within 90 days of receiving the notice. Compl. ¶ 11.


Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All facts, and any inferences to be drawn from them, must be viewed in the light most favorable to the non-moving party. Wis. Cent. Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008). The evidence presented at this stage must comport with the Federal Rules of Evidence and be admissible at trial, United States v. 5443 Suffield Terrance, Skokie, Ill., 607 F.3d 504, 510 (7th Cir. 2010), or it must consist of affidavits or declarations "made on personal knowledge, set[ting] out facts that would be admissible in evidence, and show[ing] that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). The court does not assess ...

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