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Ballard v. Illinois Central Railroad Co.

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

January 18, 2017

Jessica Ballard, Plaintiff,
Illinois Central Railroad Co., and Pamela Clermont, individually, Defendants.


          Elaine E. Bucklo, United States District Judge

         In this action, Jessica Ballard, who is African American, claims she was terminated from her job as a crew caller for Illinois Central Railroad (“ICR”) because her supervisor, Pamela Clermont, harbored racial animus against her. She sues her employer under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) and Section 1981, 42 U.S.C. § 1981, and also sues Clermont individually under the latter. Before me is defendants' motion for summary judgment, which argues that the undisputed record shows that plaintiff was appropriately terminated for violating company policies after progressive discipline, not for any discriminatory reason. Because I agree that the record as a whole does not reasonably support plaintiff's discrimination claims, I grant defendants' motion.


         The following facts are undisputed except where noted. Plaintiff began working for defendant in approximately January of 2008. After being disqualified from two positions for performance reasons, [1] she bid on and obtained a crew caller position, which she held until her termination in October of 2012. Crew callers are part of ICR's Crew Management Center (“CMC”), and their duties include calling train crews to make sure that employees are assigned to staff the right trains at the right times. In addition, crew callers are responsible for recording when crew members call in sick or otherwise need to take time off work. In some circumstances, crew callers are also responsible for “tying up” train crews at the end of their shifts (i.e., recording the time at which they went off-duty).

         Pursuant to their collective bargaining agreement, crew callers believed to have violated company rules, practices, or policies are entitled to a formal investigation, including a fact-finding hearing, prior to being disciplined. They may, however, waive investigation and accept responsibility for the alleged violation.

         Plaintiff's 2008 performance review, memorialized in an “Employee Performance Scorecard, ” contained positive comments about her work, noting that as a “new arrival...[plaintiff] has already made contributions” and that she “continues to improve and take advantage of her fellow callers to learn from them...the sky's the limit.” DN 117-2 at 9.[2]

         Sometime in 2009, Human Resources investigated a complaint against plaintiff in which a coworker alleged that plaintiff used “curse words” and called the coworker profane names. Plaintiff admitted that she used profanity but asserted that it “wasn't in a negative way.” Plaintiff was not disciplined for the incident. Ballard Dep. at 135:12-24, 136:13-17, DN 117-1 at 18. Plaintiff's 2009 Scorecard, which ranked her overall performance as a “skilled railroader” (the available options being “outstanding railroader, ” “superior railroader, ” “skilled railroader, ” “needs to improve, ” and “new employee”) included a handwritten comment by supervisor Craig Dettman that “sometimes in her haste she makes bad decisions, but when she is focused she handles herself well.” DN 117-2 at 14.

         In May of 2010, plaintiff was notified of an investigation after missing a call while working. Plaintiff admitted that she missed the call, but explained that the investigation did not proceed because it was her “first offense.” Ballard Dep. at 139:1, DN 117-1 at 19. Plaintiff was not disciplined for the incident. Id. at 139:14-15. Then, in December of 2010, plaintiff was notified of an investigation arising out of her failure to call a replacement engineer while working as a crew dispatcher. DN 117-2 at 21. Plaintiff waived her right to a formal investigation and received a five day deferred suspension.[3]Ballard Dep. at 147:13-24, DN 117-1 at 21. Plaintiff's 2010 Performance Scorecard ranked her overall performance as “needs improvement, ” and included handwritten comments by her supervisor that referred to her as an “experienced crew dispatcher, ” and a “well rounded caller, ” but noted that she “often gets distracted which leads to mistakes.” DN 117-2 at 19.

         Defendant Clermont joined the CMC in 2011 and began supervising plaintiff sometime that year. In July of 2011, Clermont coached Ballard after she improperly marked an employee up for work. See Def.'s L.R. 56.1 Stmt. ¶ 23.[4] In August of 2011, Clermont sent plaintiff a letter of caution for using her personal cell phone or electronic device for non-company business while at work, in violation of company policy. DN 117-2 at 32; Pl.'s L.R. 56.1 Resp., Exh. 5 (sealed) at IC-Ballard 002399. On September 15, 2011, supervisor Craig Dettman coached plaintiff on crew calling procedures after she failed to call a brakeman for his shift. Def.'s L.R. 56.1 Stmt. ¶ 26. Plaintiff was not disciplined for this error. Then, on approximately November 18, 2011, plaintiff received a letter of reprimand for failing to fill a crew assignment properly. Pl.'s L.R. 56.1 Resp., Exh. 5 (sealed) at IC-Ballard 002400. Plaintiff's 2011 Performance Scorecard, which was signed by supervisor Ed Contreras, ranked her overall performance as “needs development.” DN 117-2 at 35. The review contained numerous handwritten comments, including, “you have recently had many errors on the job, ” and “try to stay focused and improve your quality of work.” Id. at 35.

         On May 16, 2012, and June 5, 2012, Clermont notified plaintiff of investigations to determine her responsibility, if any, for using a personal cell phone while working, and for sleeping while on duty. DN 117-2 at 44, 47. Plaintiff waived investigation of both incidents. She received a five day deferred suspension for the former violation and served a ten day actual suspension for the latter. See Ballard Dep. at 190-196 and Exh. 23; Pl.'s L.R. 56.1 Resp., Exh. 5 (sealed) at IC-Ballard 002399. Then, on October 15, 2012, plaintiff received three notices of investigation arising out of three separate incidents that occurred in September and October of 2012. Evidentiary hearings were held in each of these investigations on October 23, 2012.[5]

         One of the investigations concerned two occasions on which plaintiff allegedly “tied up” crew members (i.e., marked them off-duty at the end of their shifts) in violation of company policies and directives. At the hearing, at which both plaintiff and Clermont testified, plaintiff acknowledged that she performed the tie-ups in the manner alleged, and further conceded that she was familiar with, but did not follow, instructions Clermont circulated in April of 2012. Indeed, the record reflects that on April 24, 2012, Clermont sent two emails to crew callers instructing them that crew members were generally required to tie themselves up using the company's Crew Assignment and Timekeeping System (“CATS”), subject to limited exceptions, such as when the crew was in a remote area without access to a CATS terminal, or when the time required for crew members to reach a CATS terminal would cause them to exceed their maximum allowable work hours. In those circumstances, crew callers could perform a “quick-tie” on the crew members' behalf, and were to follow a specific procedure when doing so. Tr. of 10/23/12 Hr'g. at 58:20-61:17, DN 117-2 at 69-70. Plaintiff admitted at the administrative hearing that she did not follow the specified procedure but instead followed her “normal routine” that she was “used to doing” because “nobody had made a big fuss or a big deal about it.” Tr. of 10/23/12 Hr'g. at 61:5, 10-11, DN 117-2 at 70.

         Hearings were also held on additional charges that on one occasion, plaintiff improperly scheduled a crew member to work before he was medically cleared, and on another, she improperly scheduled a crew member for duty on his rest day. Detailed examination of the evidence presented on these charges is unnecessary for present purposes. It suffices to note plaintiff and one of her immediate supervisors, Jessica Welch (who reported to Clermont), both provided testimony, and that plaintiff did not deny the conduct attributed to her. With respect to the first charge, plaintiff acknowledged her failure to follow company procedures, but explained why she believed her conduct to be appropriate under the circumstances. Tr. of 10/23/12 Hr'g. at 49-52, DN 117-2 at 168. With respect to the second, she admitted to leaving a conductor on the work schedule after he called in to say he could not work because it was his rest day, but explained that she thought the conductor was “joking.”[6]

         Austin McConnell, who was then Superintendent of ICR's Regional Operations Center, states in his declaration that he reviewed the transcripts of the three investigation hearings and determined, in consultation with ICR's general manager, Hunt Cary, that termination was the appropriate level of discipline in view of plaintiff's disciplinary history. McConnell Decl. ¶ 4, DN 117-3 at 113. McConnell further states that he did not discuss plaintiff's termination with Clermont. Id. at ΒΆ 5. Plaintiff disputes the latter statement, insisting that Clermont was involved in the decision to terminate her. According to plaintiff, Clermont often threatened ...

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