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Mays v. BNSF Ry. Co.

United States District Court, N.D. Illinois, Eastern Division

September 9, 2013

ALTION MAYS, Plaintiff,

For Altion Mays, Plaintiff: Steven McMahon Zeller, LEAD ATTORNEY, Kyle Alexander Davis, Dykema Gossett PLLC, Chicago, IL.

For BNSF Railway Company, Defendant: Steven Michael Hartmann, LEAD ATTORNEY, Rachel Elisabeth Anne Atterberry, Freeborn & Peters, Chicago, IL.


Page 1167

Memorandum Opinion and Order

Feinerman, United States District Judge.

Altion Mays brought this suit against BNSF Railway Company under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Doc. 1. Mays, an African-American, alleges that BNSF required Rail Terminal Services (" RTS" ), his employer and BNSF's subcontractor, to implement a background check policy that had a disparate impact against African-Americans. Doc. 30. BNSF has moved for summary judgment, and Mays has cross-moved for partial summary judgment on two of BNSF's affirmative defenses. Docs. 90, 98. After the motions were filed, the case was reassigned to the undersigned judge's calendar. Doc. 116. For the following reasons, BNSF's motion is granted and Mays's motion is denied as moot.


BNSF's motion will be considered first and, because it will be granted, last. The following sets forth the material facts as favorably to Mays as the record and Local Rule 56.1 permit. See In re United Air Lines, Inc., 453 F.3d 463, 468 (7th Cir. 2006) (" With cross summary judgment motions, we construe all facts and inferences therefrom in favor of the party against whom the motion under consideration is made." ) (internal quotation marks omitted).

BNSF, a large freight rail transportation network, maintains an intermodal hub in Corwith, Illinois. Doc. 103 at ¶ ¶ 4-5. BNSF contracts with several third-party service providers to perform certain functions at Corwith and its other facilities. Id. at ¶ 6. One of the third-party service

Page 1168

providers, RTS, performed loading and unloading services at Corwith. Id. at ¶ 7. RTS supplied the workforce for those services. Id. at ¶ 8. The relationship between RTS and BNSF was governed bye the Intermodal Services Agreement (" ISA" ). Id. at ¶ 10.

The ISA provided that RTS was an independent contractor, that RTS's employees were not subject to BNSF's direction, control, or supervision, and that RTS was responsible for the employment, direction, and supervision of its own employees. Id. at ¶ ¶ 12-13. The ISA required RTS to perform a background investigation of employees who would be working at Corwith, including a review of their criminal records for the previous seven years. Id. at ¶ 14. RTS employees who were convicted of larceny, theft, unlawful taking of another's property, or any felony within that seven-year time period were not allowed to perform services at Corwith; the ISA did not, however, require RTS to terminate such employees. Id. at ¶ ¶ 15-16. BNSF applies the same criminal background policy to its own employees. Doc. 104 at ¶ 74. RTS had no discretion when applying the background check policy. Id. at ¶ 75.

RTS's hourly employees generally did not interact with BNSF employees at Corwith. RTS would begin each shift with a briefing to discuss safety issues and to distribute work assignments. Doc. 103 at ¶ 19. RTS had its own safety manual, though BNSF also required RTS employees to follow numerous safety rules. Ibid. Besides BNSF's background check policy, which as just noted prohibited RTS employees with certain criminal backgrounds from working at Corwith but did not require RTS to hire or fire any employee, BNSF did not have input as to RTS's hiring or firing decisions and did not perform human resources functions for RTS or its employees. Id. at ¶ 21.

RTS hired Mays as a spotter in or around July 2000 and assigned him to Corwith. Id. at ¶ 22. Mays never was employed by BNSF. Id. at ¶ 23. All of Mays's supervisors were RTS employees, and he received his work instructions and assignments from those supervisors. Id. at ¶ ¶ 25-26. If Mays had an issue with or a complaint concerning his employment, or a question regarding a work assignment, he would ask his RTS supervisors. Id. at ¶ ¶ 27-28. Mays received his scheduling information from RTS supervisors. Id. at ¶ 34. RTS kept track of Mays's attendance. Id. at ¶ 35. During his employment with RTS, Mays never received directions or instructions from a BNSF employee. Id. at ¶ 31. Any disciplinary notices were issued directly from RTS to Mays; Mays was never issued discipline by BNSF. Id. at ¶ 30. The trucks used by RTS employees had an RTS logo. Id. at ¶ 29. Mays's salary checks came from RTS, not BNSF. Id. at ¶ 32. RTS provided Mays's employment benefits. Id. at ¶ 33.

In 2003, Mays was convicted of a felony, the illegal sale of a handgun. Id. at ¶ 37. As a result, and pursuant to the ISA, Mays was not allowed to enter onto BNSF property at the Corwith yard and was advised as such by his RTS supervisors. Id. at ¶ 32. RTS did not offer Mays a position at an alternative site, and he never again worked for RTS. Id. at ¶ 39.

After RTS informed him that he could no longer work at Corwith, Mays filed a charge of discrimination against BNSF with the Equal Employment Opportunity Commission (" EEOC" ). Doc. 30-1. The EEOC issued Mays a right to sue letter. Doc. 30-2. Mays also filed an EEOC charge against RTS, and he and three colleagues eventually brought suit against RTS. Doc. 103 at ¶ 40; Doc. 92-10 at 2-10; see Salter v. Rail Terminal Servs., No. 05 C 301 (N.D. Ill.). Mays settled that suit

Page 1169

and received settlement payments from RTS. Doc. 103 at ¶ 40; Doc. 92-10 at 13.


BNSF's motion seeks summary judgment on several grounds. To resolve the motion, it is necessary to address only BNSF's argument that because it was not Mays's employer, Title VII does not permit Mays to bring his claim against it.

Title VII makes it unlawful:

for an employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a). Subsection (a)(1) prohibits disparate treatment, while subsection (a)(2) prohibits employment practices that result in a disparate impact against a protected group. See Lewis v. City of Chicago, 560 U.S. 205, 130 S.Ct. 2191, 2197, 176 L.Ed.2d 967 (2010); Connecticut v. Teal, 457 U.S. 440, 448, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982); Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Only an " employer" can be held liable under Title VII, and BNSF, which has more than fifteen employees, indisputably is an employer. See 42 U.S.C. § 2000e(b) (defining " employer" as any person " engaged in an industry affecting commerce who has fifteen or more employees" ). BNSF argues, however, that it was not Mays's employer--in other words, that Mays was not its employee. Title VII circularly defines " employee" as " an individual employed by an employer." 42 U.S.C. § 2000e(f).

Mays concedes that RTS, not BNSF, was his employer. Doc. 103 at ¶ ¶ 22-23. He seeks refuge, however, in the " interference" theory of Title VII, which provides that an employee (Mays) of Employer X (RTS) may sue Employer Y (BNSF) under Title VII on the ground that Employer Y's alleged discriminatory conduct (the background check policy that BNSF required ...

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