United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. Bucklo, United States District Judge
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.
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,  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).
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.
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.
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.
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.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.
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. ¶
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.
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.
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.
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
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 ¶ 5. Plaintiff disputes
the latter statement, insisting that Clermont was involved in
the decision to terminate her. According to plaintiff,
Clermont often threatened ...