United States District Court, N.D. Illinois, Eastern Division
DEWAN J. STEVENSON, Plaintiff,
UNITED AIRLINES, INC., IAM-AW LODGE 141, JAY GEGENHEIMER, and ALEX GERULIS, Defendants.
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Dewan Stevenson brought this suit against his former employer, United Airlines, Inc.; United employee Jay Gegenheimer; his union, the International Association of Machinists and Aerospace Workers Lodge 141 ("the Union"); and Union representative Alex Gerulis. Doc. 1. The complaint alleges race discrimination in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Docs. 1, 81. The court recruited counsel to represent Stevenson, Doc. 8, and after the case was reassigned to the undersigned judge, Doc. 68, recruited counsel sought and was granted leave to withdraw from representing Stevenson on his claims against the Union and Gerulis, Docs. 79, 82. Now before the court are summary judgment motions filed by United and Gegenheimer, Doc. 98, and by the Union and Gerulis, Doc. 91. The motions are granted.
The following facts are set forth as favorably to Stevenson as the record and Local Rule 56.1 permit.[*] See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). On summary judgment, the court must assume the truth of those facts, but does not vouch for them. See Smith v. Bray, 681 F.3d 888, 892 (7th Cir. 2012).
Stevenson, an African-American male, worked as a ramp serviceman for United at O'Hare International Airport's international terminal. Doc. 127 at ¶ 5. The Union was Stevenson's exclusive bargaining agent. Id. at ¶ 6. Like other United employees, Stevenson had two security cards: a "city badge" issued by the City of Chicago, which permitted access past airport security, and an "EPS card" issued by United, which tracked his hours for payroll purposes. Id. at ¶¶ 25-26.
In 2009, United received anonymous letters claiming that employees in the international terminal were engaged in drug use and other improprieties. Id. at ¶ 38; Doc. 138 at ¶ 1. The letters also stated that several employees were part of a so-called "timecard swipe club, " whose members took turns swiping absent members' cards, which caused United's records to reflect the absent members as working when in fact they were not. Doc. 127 at ¶ 38; Doc. 138 at ¶ 1.
United told the Federal Bureau of Investigation about the allegations and the Bureau in early August 2009 conducted a surprise search of employee lockers in the international terminal. Doc. 127 at ¶¶ 40-41. Stevenson was told that the search indicated that his locker contained drugs. Doc. 138 at ¶ 2. Gegenheimer, a United safety supervisor, ordered Stevenson to submit to a drug test, which the applicable collective bargaining agreement ("CBA") authorized upon reasonable suspicion. Doc. 127 at ¶ 43; Doc 138 at ¶ 4. Gegenheimer drove Stevenson to a medical facility to be tested and confiscated his employee badge. Doc. 127 at ¶ 45; Doc. 138 at ¶ 7. The test report concluded that Stevenson was "unfit' for duty pending laboratory confirmation." Doc. 127 at ¶ 46. After completing a rehabilitation program in October 2009, Stevenson was cleared to return to work. Id. at ¶¶ 47, 52.
Meanwhile, United expanded its timecard investigation to cover the employees whose lockers had been searched. Id. at ¶ 53. United compared those employees' city badge records with their EPS card records. Id. at ¶ 54. United also analyzed those individuals' "ring correction forms, " which employees can use to correct their timesheets if they forget to swipe in with their EPS card. Id. at ¶¶ 11, 55; Doc. 138 at ¶ 12. The investigation led United to suspect that Stevenson had submitted false ring correction forms on two occasions. Doc. 127 at ¶¶ 55-60. The first form, pertaining to July 3, 2009, indicated that Stevenson had arrived at his worksite at 11:00 a.m. Id. at ¶ 56. Yet the City's records for that day showed that Stevenson did not swipe through airport security until 10:56 a.m.; United suspected, and Stevenson later admitted, that he could not have traveled from security to his worksite in the four minutes that elapsed from 10:56 and 11:00. Id. at ¶ 57. The second form, pertaining to July 21, 2009, indicated that Stevenson had been at work, although the City's records did not show him swiping through airport security at all. Id. at ¶ 59.
A United rule, "Rule 3, " prohibits falsifying timecards or payroll records, and a violation of that rule can result in discharge "unless mitigating factors are considered applicable." Doc. 93 at ¶¶ 12-13; Doc. 119 at pp. 10-11; Doc. 127 at ¶ 10. Pursuant to the CBA, United afforded Stevenson an "Investigative Review Hearing" on October 19, 2009. Doc. 127 at ¶¶ 18-19, 61. At the hearing, a Union representative argued that both of Stevenson's ring correction forms were accurate. Stevenson claimed to have arrived at O'Hare early on July 3, but without his city badge, passing through security with the help of a friendly guard; he further claimed that he left the worksite to meet his wife, swiping his city badge at 10:56 a.m. on the way back to his post. Id. at ¶ 62. On July 21, Stevenson said, he again forgot his city badge and was waved through security by a guard. Id. at ¶ 58. A coworker of Stevenson's testified that he remembered seeing Stevenson at work on July 21. Id. at ¶ 63. The hearing officer rejected these explanations, reasoning that "the preponderance of the evidence supports the conclusion that Mr. Stevenson did not work at all" on July 21 and that he was not at work at 11:00 am on July 3. Doc. 93 at ¶ 28; Doc. 119 at pp. 32-33. On December 1, 2009, the hearing officer issued his decision discharging Stevenson. Doc. 127 at ¶ 64.
The CBA gives Union members the right to grieve discharge decisions to a member of United's human resources department and an Assistant General Chairman of the Union; if the parties do not agree on how to resolve the grievance, United holds a so-called "Step Three Hearing." Doc. 93 at ¶¶ 21-22; Doc. 119 at pp. 29-30. Gerulis was assigned to investigate Stevenson's case in preparation for the Step Three Hearing. Doc. 93 at ¶ 29; Doc. 119 at p. 34. Gerulis directed another Union member to interview an employee alongside whom Stevenson was supposed to be working on July 22. Gerulis also spoke to the security guard that Stevenson claimed had admitted him without his city badge; the guard told Gerulis that he would testify in Stevenson's favor. Doc. 93 at ¶¶ 30-32; Doc. 119 at pp. 34-35. In addition, Gerulis interviewed the supervisor who signed Stevenson's ring correction form, but the supervisor could not remember anything specific about the days in question. Doc. 93 at ¶ 33; Doc. 119 at p. 35.
At the Step Three Hearing, the Union called Stevenson's coworker to testify that he saw Stevenson at work on July 21. Doc. 93 at ¶ 38; Doc. 119 at p. 37. The security guard did not attend the hearing, and Gerulis argued that the guard had been intimidated into not testifying and would have confirmed that he admitted Stevenson on July 21. Doc. 93 at ¶ 39; Doc. 119 at pp. 37-38. In a decision issued on May 20, 2011, a United hearing officer upheld Stevenson's termination. Doc. 93 at ¶ 40; Doc. 119 at p. 38; Doc. 127 at ¶ 66.
Following an unfavorable Step Three decision, the Union has the option under the CBA to proceed to arbitration. Doc. 93 at ¶ 24; Doc. 119 at p. 31. In Stevenson's case, the Union decided not to do so. Doc. 93 at ¶ 46; Doc. 119 at p. 39; Doc. 127 at ¶ 66. The Union maintains that it declined to arbitrate Stevenson's case because its investigation and prior experience suggested that the prospects for success were dim, although Stevenson disputes this assessment. Doc. 93 at ¶¶ 46-57; Doc. 119 at pp. 39-43.
On October 27, 2011, Stevenson filed a charge of discrimination against United with the Equal Opportunity Employment Commission ("EEOC") and the Illinois Department of Human Rights ("IDHR"), alleging race discrimination. Doc. 127 at ¶ 78. The EEOC issued a right to sue letter on January 30, 2012. Id. at ¶ 79.
Stevenson claims that United and the Union violated Title VII of the Civil Rights Act and 42 U.S.C. § 1981, United by treating him less favorably, and the Union by representing him less ably, than white employees. Stevenson also claims that Gegenheimer and Gerulis violated § 1981. Although there are some differences between the two statutes, see Smith v. Bray, 681 F.3d 888, 896 n.2 (7th Cir. 2012), "the methods of proof and elements of a Section 1981 case are essentially identical to those in a Title VII case." Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013) (internal quotations marks and alterations omitted); see also Skylarsky v. Means-Knaus Partners, L.P., 777 F.3d 892, 896 (7th Cir. 2015) ("the same analysis applies to both theories of liability"); ...