United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
SARA L. ELLIS, District Judge.
Plaintiff Ronald Sweatt, a fifty-seven year old African American, filed suit against Defendant Union Pacific Railroad Company ("Union Pacific"). Sweatt alleges violation of the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq. ; age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ; race discrimination in violation of the Civil Rights Act of 1991, as amended, 42 U.S.C. § 1981; and perceived and actual disability discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Before the Court is Union Pacific's motion for summary judgment . Because the FELA claims are time-barred, Sweatt has not called into question Union Pacific's reason for not hiring him, and Sweatt has abandoned his ADA claims, Union Pacific's motion for summary judgment is granted.
I. Sweatt's History with Union Pacific
Sweatt began working at Union Pacific in 2006 as a laborer in the Maintenance of Way Department. As a laborer, Sweatt operated a spike maul and performed other duties to maintain and repair railroad track. During his time at Union Pacific, Sweatt also worked as an assistant foreman, a trackwalker, a trackman, and a tie inserter. As an assistant foreman, he drove the section truck in addition to performing the job duties of a laborer. As a trackwalker and trackman, his job duties included tamping, assisting with welding, and pulling spikes with a claw bar to perform minor repairs on the railroad track. As a tie inserter, Sweatt pulled out and inserted railroad ties. All these jobs were heavy duty positions.
Sweatt developed pain in his shoulder and hands while working for Union Pacific. Although the pain developed over time, he recalled noticing the pain in his shoulder and hands around June 2009 when he was working at Union Pacific's Lake Street site. Around that time, the pain was so unbearable when he was using a claw bar that he had to ask other workers to help him with his tasks. Sweatt did not seek medical attention at the time, however, because he did not want to take time off work. According to Sweatt, both pneumatic and hydraulic tools caused him hand pain, and the gloves that Union Pacific issued him as part of his personal protective equipment did not dampen the vibration caused by these tools. He did not ask for any other heavy duty gloves. Sweatt admits that the tasks that caused his injuries were essential to the work he did as a trackworker and trackwalker.
On November 19, 2009, Sweatt saw Nurse Practitioner Ruth Valentin with complaints of bilateral hand pain that he had been experiencing for "quite a while now." Joint Stmt. of Facts ¶ 16. Valentin's notes reflect that Sweatt's job involved repetitive motion and that Sweatt may have carpal tunnel syndrome. Sweatt then saw Dr. Robert Coats on November 30, 2009. Dr. Coats' notes indicate that Sweatt reported that he first noticed the pain in his hands and shoulder around May 2009 and that the pain was worse when he was at work. Dr. Coats prohibited Sweatt from using vibratory tools, lifting over five pounds, and pulling over five pounds.
After seeing Dr. Coats, Sweatt filled out an injury report on December 11, 2009. His last day of active employment with Union Pacific was in December 2009. In March 2010, Dr. Coats performed right shoulder rotator repair cuff surgery on Sweatt. Dr. Coats saw Sweatt for a follow up appointment in February 2011, reiterating that Sweatt should pursue less demanding work. In the summer of 2012, Dr. Coats requested that Union Pacific approve bilateral carpal tunnel release surgery for Sweatt, but Union Pacific refused.
In January 2011, Union Pacific offered Sweatt the opportunity to participate in one of its two disability management programs, the Vocational Rehabilitation Program. The Vocational Rehabilitation Program is designed for those employees unable to return to their regularly assigned positions due to injury or illness. Outside vocational rehabilitation counselors work with these employees to develop vocational plans as well as assist with interviewing skills, resume preparation, and training. The counselors work to place the employees in their pre-injury positions if possible, in another open position at Union Pacific, or even in a position outside Union Pacific.
Initially, Sweatt declined the services offered by the Vocational Rehabilitation Program but ultimately accepted them after speaking with Candace Girard, Union Pacific's Director of Disability Management, and Dr. Coats. He began working with vocational counselor Elizabeth Watson in February 2011. Sweatt tested well below average on the vocational tests he was administered. Sweatt provided Watson with his medical records, informing her that he had bilateral carpal tunnel syndrome, a right shoulder impingement that was surgically repaired, and a history of degenerative disc disease and cervical spine surgery. Watson determined that Sweatt needed to find a job that was less demanding than that of a trackworker. Watson and Sweatt discussed various job options based on Sweatt's medical limitations and his test results.
While working with Sweatt, Watson learned of an opening for a security officer with Union Pacific in the Chicago area, a position in which Sweatt expressed interest. Sweatt was scheduled for an interview for this position in Omaha, Nebraska on March 16, 2011. To prepare, Watson provided Sweatt with a document that set forth information Sweatt would have to provide on a personal history form before his interview. This included a section on arrests, specifically requesting the "[n]ature of offense, name & location of court, disposition of case, " as well as information about convictions, probation, and parole. Joint Ex. 14. When Sweatt arrived in Omaha on March 16, he filled out a Personal History Statement. Under the arrests heading, the form asked whether Sweatt had ever been convicted of a misdemeanor or felony, had ever been on probation or parole, and had ever been under indictment or charges for a criminal offense. He answered no to all three questions. Sweatt then interviewed with Bruce Finger, the Director of Training and Internal Placement, and Ken Eultgen, the Director of Homeland Security. Based on an interviewer's question form used for all security officer interviews, Finger asked Sweatt whether he had ever been arrested or convicted of a misdemeanor or felony. Sweatt responded that he had not. After the interview, Finger recommended Sweatt for the open position.
Finger's recommendation triggered a background investigation by Union Pacific's Northern Region. Each division conducts background investigations slightly differently, although all receive the same information from the main offices in Omaha, specifically the candidate's Personal History Statement, eVerifile criminal background report, PeopleSoft records, and the completed interview questioner's form. The Northern Region does not rely solely on the eVerifile criminal background report for applicants for its Police Department and instead also runs a LEADS/NCIC check. The LEADS/NCIC database is restricted to law enforcement and contains criminal arrest record information. Interviews are also conducted as part of the background investigation. Once the background investigation is completed, the agent in charge of the investigation completes a background investigation narrative. This narrative has no set form. Although a narrative may not state that a NCIC/LEADS check was run, that does not mean it was not run. After reviewing the background investigation narrative, Finger and the Regional Director make the ultimate decision of whether to offer a position to the candidate.
Sweatt's eVerifile report showed that he did not have any record convictions for misdemeanors or felonies over the previous seven years. The LEADS/NCIC check that Special Agent James Weller ran, however, indicated that Sweatt had been arrested in Flossmoor, Illinois on two counts of battery in 1997. Agent Weller then interviewed Sweatt, asking Sweatt if he had ever been arrested. Sweatt responded in the negative. Agent Weller repeated the question up to three or four times, with Sweatt's response consistently the same. Ultimately, Agent Weller asked Sweatt if he was ever arrested in Flossmoor, Illinois. Sweatt then responded "that was just a misunderstanding and the judge threw that out of court." Joint Stmt. of Facts ¶ 62. He further related that the arrest involved a domestic dispute and that he remained friends with the other party.
Agent Weller also interviewed Sweatt's former supervisor at Union Pacific, Richard Johnson. Johnson reported that Sweatt was a good employee, was on time to work, had good character, and did not abuse sick time. Johnson recommended Sweatt for the security officer position. One of Sweatt's former employers also told Agent Weller that she did not have any problems with Sweatt over the fifteen years he worked for her and that the company never received any negative reports about Sweatt from any clients. She further stated that the company would rehire him if he applied for another position with them. This information, along with that surrounding Sweatt's arrest record and ...