United States District Court, N.D. Illinois, Eastern Division
FRANK BURKS and CORNELIUS L. JONES, JR., Plaintiffs,
UNION PACIFIC RAILROAD CO., Defendant.
MEMORANDUM OPINION AND ORDER
MARIA VALDEZ, Magistrate Judge.
Plaintiffs' complaint alleges racial harassment and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. ("Title VII"). This matter is now before the Court on Defendant's Motion for Summary Judgment [Doc. No. 61]. For the reasons that follow, Defendant's motion is granted.
At all relevant times, Plaintiffs Frank Burks and Cornelius L. Jones, Jr. were employees of defendant UP, which is an employer within the meaning of Title VII. (Def.'s LR 56.1(a)(3) ¶¶ 1-2.) Both plaintiffs were hired by UP as Signal Helpers, reporting to orientation in Boone, Iowa on January 3, 2011. ( Id. ¶¶ 5, 19; Pls.' LR 56.1(b)(3)(C) ¶ 1.) They were the only two Black employees in the orientation group. (Pls.' LR 56.1(b)(3)(C) ¶ 1.) During orientation, they were told by Morgan Riley, Manager of Signal Construction, that they would be employed as Signal Helpers through December 31, 2015 or until the company moved in a different direction. ( Id. ¶ 3.)
Both plaintiffs were aware that they were required to be familiar with and comply with UP's policies and procedures, and they were provided with a copy of UP's equal employment opportunity ("EEO") and affirmative action policy at the time they were hired. (Def.'s LR 56.1(a)(3) ¶¶ 6, 20.) Both were subject to a Collective Bargaining Agreement that covered the terms and conditions of employment. ( Id. ¶¶ 7, 21.) The job of Signal Helper was subject to a ninety-day probation period. ( Id. )
A. Burks's Employment History
After his orientation, Burks was assigned to Zone 5, under foreman Craig Krogmeier, who in turn reported to Riley. ( Id. ¶ 8.) The job duties for Signal Helper included installing, constructing, wire, digging trenches, climbing poles, and assisting, but Burks primarily dug trenches. ( Id.; Pls.' LR 56.1(b)(3)(B) ¶ 8.) Burks was first terminated on February 9, 2011, after only twenty days on the job. (Def.'s LR 56.1(a)(3) ¶ 9.) He was discharged by Chad Smith at Riley's direction because "it wasn't working out." (Pls.' LR 56.1(b)(3)(C) ¶ 4.) Burks complained to Melissa Schop, in UP's EEO department, alleging racial discrimination in connection with his termination. ( Id. ¶ 8; Def.'s LR 56.1(a)(3) ¶ 10.) Schop investigated the complaint and found no evidence that Burks's termination was based on race. Instead, she concluded that he had not been properly coached or given an opportunity to improve his performance before being terminated. (Def.'s LR 56.1(a)(3) ¶ 10; Pls.' LR 56.1(b)(3)(C) ¶ 8.) Burks was then offered reinstatement in exchange for signing a general release containing a new ninety-day probationary period. Burks claims that he was "forced" to sign the release because he needed employment, but he does not allege any facts demonstrating that he did not voluntarily sign the agreement on May 5, 2011. (Def.'s LR 56.1(a)(3) ¶ 11.)
Burks returned to work on May 24, 2011 on Zone 5 in Boone, Iowa, reporting to a new foreman, George Hoy, who also worked under Riley. ( Id. ¶ 12; Pls.' LR 56.1(b)(3)(C) ¶ 9.) Burks was the only Signal Helper on the gang. (Def.'s LR 56.1(a)(3) ¶ 12.) Burks believed Hoy to be a racist based on Hoy's alleged harsh treatment of him. (Pls.' LR 56.1(b)(3)(C) ¶ 9.) Burks claims that during the morning of May 28, 2011, he was required to dig trenches for four hours in the rain, which was accompanied by lightning and thunder. ( Id. ¶ 9A; Def.'s LR 56.1(a)(3) ¶ 13.) The U.S. Government Weather Station in Boone, Iowa reported zero precipitation on May 28, 2011, and the National Lightning Detection Network reported zero lightning strikes for a fifteen-mile radius surrounding Boone, Iowa for the same time period. (Def.'s LR 56.1(a)(3) ¶ 13.)
After only seven days of working under Hoy, Burks sought a transfer. ( Id. ¶ 15.) Burks admitted that Riley reviewed his performance fairly and accurately for the seven days he was on Hoy's gang, and he further admitted that Riley allowed Burks to be paid for Memorial Day even though he was not entitled to be paid for the holiday. ( Id. )
Following his complaint, Burks was transferred to Zone 4 reporting to foreman Rod Storbeck, who in turn reported to Riley. ( Id. ¶ 16.) Burks claims he did not suffer any racial harassment or discrimination once he worked for Storbeck, and he liked the job so much he thought he "went to heaven." ( Id. ¶ 17; Pls.' LR 56.1(b)(3)(C) ¶ 9A.) Thereafter, Riley signed off on an evaluation of Burks's performance that Burks considered to be fair and accurate. (Def.'s LR 56.1(a)(3) ¶ 17.) Burks successfully completed his probationary period on August 23, 2011 and was later notified that the Signal Helper position was being abolished as of October 10, 2011. ( Id. ¶ 18.)
B. Jones's Employment History
After his orientation, Jones was assigned to Zone 5, reporting to foreman Clay Smith. He was later assigned to Zone 4, reporting to Jeremy Bates for a few months before returning to Smith's gang on Zone 5. ( Id. ¶ 22.) Although the job description for Signal Helper included the duties of laying wires and cables into the ground and changing signal lights, Jones primarily dug trenches. ( Id.; Pls.' LR 56.1(b)(3)(B) ¶ 22.) Jones satisfactorily completed his probationary period around April 3, 2011. (Pls.' LR 56.1(b)(3)(C) ¶ 10.)
Jones claims that Smith once made him sit in a truck that was still cold and another time, Smith made him loosen up bolts out in the cold, although he admits it was a one-person job. (Def.'s LR 56.1(a)(3) ¶ 23.) After he returned to Smith's gang from Bates's gang, Jones claims that Smith did not call him for a job and thus he did not get paid. ( Id. ¶ 24.) Jones also claims that Smith threatened to write him up for not picking up a shovel on May 20, 2011, but he does not know whether Smith fulfilled the threat, as Jones only saw one write-up from Smith, and it was not for this alleged infraction. ( Id.; Pls.' LR 56.1(b)(3)(B) ¶ 24.)
On May 30, 2011, Jones alleges that Smith told him to stop shoveling, but he did not tell anyone else to stop shoveling at that time. (Def.'s LR 56.1(a)(3) ¶ 25; Pls.' LR 56.1(b)(3)(C) ¶ 29.) At some point in 2011, Smith also told a Caucasian employee who had not filed an EEO complaint to stop shoveling. (Def.'s LR 56.1(a)(3) ¶ 25.) Jones claims, however, that Smith screamed at him but did not scream at any other person on the crew to stop shoveling. (Pls.' LR 56.1(b)(3)(B) ¶ 25.)
On June 8, 2011, Smith commented that something (either a gate or a truck) was now "working like a striped monkey" or "running like a striped-ass monkey." (Def.'s LR 56.1(a)(3) ¶ 26; Pls.' LR 56.1(b)(3)(B) ¶ 26.) Jones admits that Smith did not make the remark to him or to any other person, but he was present when it was made and thought that it was in reference to his biracial children. ((Def.'s LR 56.1(a)(3) ¶ 26; Pls.' LR 56.1(b)(3)(B) ¶ 26; Pls.' LR 56.1(b)(3)(C) ¶ 27.) Jones thereafter lodged an internal EEO complaint with Schop about the "striped monkey" comment. (Def.'s LR 56.1(a)(3) ¶ 27; Pls.' LR 56.1(b)(3)(C) ¶ 28.) After investigating the complaint by looking online in the Urban Dictionary, researching in a book called "The Color of Words, " and speaking to two African-American colleagues, Schop concluded that the comment was not racist. (Def.'s LR 56.1(a)(3) ¶ 27.) Jones contends that after he made the complaint, Smith would only communicate with him through others. ( Id. ¶ 28.) Jones made no complaints to anyone at UP about any racially discriminatory conduct other than the "striped monkey" comment. ( Id. ¶ 29.)
Jones was notified on October 10, 2011 that the Signal Helper position was being abolished in Zones 4 and 5. ( Id. ¶ 30.) Paul Skinner, a Caucasian employee who did not file any EEO complaints, had his position as a Signal Helper abolished at the same time. ( Id. )
C. Plaintiffs' Applications for Promotion
Before they were allowed to take the Skill Battery test required for promotion from Signal Helper to the position of Assistant Signal Person, employees were first required to apply online for an open position. ( Id. ¶ 31.) Burks in Jones were not eligible to apply for the Assistant Signal Person position until ...