United States District Court, N.D. Illinois, Eastern Division
NARCISSUS J. LILLIAN, Plaintiff,
NATIONAL RAILROAD PASSENGER CORPORATION, a Government Corporation, Defendant.
MEMORANDUM OPINION AND ORDER
I. Shadur Senior United States District Judge
Lillian ("Lillian") has brought this action against
his former employer, the National Railroad Passenger
Corporation ("Amtrak"), charging it with violations
of federal law for actions that culminated in its terminating
Lillian's employment on June 6, 2014. Lillian claims
that Amtrak is liable (1) under the Safety Act for
retaliation after he reported a safety violation to his
supervisors (Count III) and (2) under the Americans with
Disabilities Act ("ADA") for both discrimination
(Count I) and retaliation against him after he complained of
that discrimination to the Equal Employment Opportunity
Commission ("EEOC") (Count II). Each side has now
brought a Fed.R.Civ.P. ("Rule") 56 motion for
summary judgment as to liability, with Amtrak seeking
judgment on all counts and Lillian solely on Count
January 26, 2014 Amtrak assigned Lillian to clean railcar
39028 (L. St. ¶ 21). According to Lillian, he asked one
of his supervisors (Lisa Simane ("Simane")) if the
railcar was safe in light of its having been flagged for
bedbug infestation (id. ¶ 22). After speaking
with the head of the Mechanical Department and supervisor
Monica Morris ("Morris"), Simane learned that the
railcar had been fumigated at the previous station (AR. L St.
¶¶ 22-24). Based on that information, Simane then
told that to Lillian, who entered the car and began working
despite some hesitation (id. ¶ 24).
asserts that after he had completed cleaning the first room
in the car and moved on to the second room, he saw there what
he believed to be bedbugs in a semi-circle moving on a
mattress and made a report to his supervisor that he saw
"moving black specks" (L. St. ¶ 25). Simane
denies that Lillian said that the black specks were moving
(AR. L. St. ¶¶ 25-27), although neither Simane nor
Morris entered the car following Lillian's report to
confirm or reject what led to his report (id.
¶¶ 33, 35). Lillian says he told Simane that he
felt unsafe and therefore could not reenter the car (L. St.
¶ 27). But Simane claims Lillian gave no explanation,
although she admitted that he said "I can't do it. I
just can't do it." (AR. L. St. ¶ 27).
Lillian refused to reenter the train, Amtrak charged him with
refusing a directive from his supervisors on January 26, 2014
(A. Add. St. ¶ 18). Amtrak (specifically Deputy General
Manager of the Central Region Morrell Savoy
("Savoy")) then found Lillian guilty of that charge
-- refusing a directive from a supervisor -- following his
May 28 formal disciplinary hearing (id. ¶ 19).
Amtrak's hearing officer also cited two prior
terminations in Lillian's file as factors in his ultimate
decision to terminate Lillian (id. ¶ 20).
month before the incident described above, Lillian reported
to his supervisors Morris and Simane that he was bitten while
cleaning a railcar (L St. ¶¶ 16-17). Although
Amtrak admits that Lillian reported that he was bitten by
bedbugs, it nonetheless denies the truth of his report (AR. L
St. ¶ 17), citing a medical report in which a doctor
noted "pruritic bumps scattered throughout the forearms,
eventually involving the chest, abdomen, thighs, knees, lower
legs, pulse, and hands" (id. Ex.
In that respect Lillian claims that Morris told him he could
be reprimanded for failing to report the incident sooner (L
St. ¶ 18). As a train attendant Lillian worked under
guidelines requiring him to report any potential safety
matter (including bedbugs) to a supervisor and to inspect and
treat railcars containing signs of bedbug infestation
appropriately (AR. L St. ¶ 7). Lillian claims (though
Amtrak disputes) that once an employee reports signs of
bedbugs or once a car has been flagged, management must
notify someone from Amtrak's mechanical department who
must then come to do the inspection (L St. ¶ 9).
Railcars are then typically locked off, and the employees are
told not to enter the car until the inspection is completed
(id. ¶ 10, AR. L St. ¶ 8). Lillian points
to his understanding of those guidelines as the reason for
his non-compliance in the events leading to his Safety Act
Lillian's ADA claim, its history goes back even farther
than his Safety Act claim. Lillian's initial job
application stated that he has diabetes, a condition that
limits what and when he can eat (L. Add. St. ¶ 4). In
1994 he requested an accommodation to have adequate time for
meal breaks, which included eating meals no more than 4 or 5
hours apart (id.). Lillian informed his supervisor
at the time, a Mr. Erford ("Erford"), about the
importance of his meal schedule (id. ¶ 5).
Erford told Lillian that an accommodation "may be
grounds for disqualification" in his current position
(id.). Following that conversation Lillian submitted
a written complaint (id.).
Amtrak set up a central body (the "ADA Panel") that
evaluates requests for accommodations (A. St. ¶ 15). In
September 2003 Lillian submitted a statement of disability to
that ADA Panel together with a doctor's note stating that
he must have control over "the times he eats" (L.
Add. St. ¶ 6). On November 24, 2003 the ADA Panel gave
him an accommodation that allowed for food and beverage
accommodation sufficient to meet his dietary needs (A. St.
unhappy with his treatment, Lillian sent the ADA Panel an
accommodation request on October 12, 2007 together with a
letter from his physician calling for a formal accommodation
that would allow him to take breaks whenever he needed them
(L. Add. St. ¶ 8). Lillian's accommodation letter
also sought an allowance for meals while working en route (A.
St. ¶ 20). On December 18, 2007 Amtrak's ADA Panel
granted Lillian an accommodation that allowed two entrees per
meal from Amtrak's meal service, but the accommodation
did not allow him to take his meals at any time he deemed
necessary (id. ¶ 21).
Lillian had two new supervisors, Jonathan Lombardi
("Lombardi") and Natalie Berry ("Berry").
Lillian claims that he informed them he had diabetes before
May 2012, so that they understood his need for lunch breaks
(L. Add. St. ¶ 16). He also claims that Lombardi told
him that if he needed a 15-minute snack break due to his
medical condition, it would "not be a problem"
(id. ¶ 15). Amtrak denies that any
conversations between Lillian and his supervisors were for
the purpose of seeking an accommodation (AR. L. Add. St.
asserts that on both May 30 and June 30, 2012 he went 5 hours
between meals and took a short break to eat (L. Add. St.
¶ 17). Amtrak claims that on those two dates Lillian
took lunch before completing his duties, and when he was
asked to return to his duties he refused (A. St. ¶ 30).
Following the June 30 incident Morris signed a notice of
formal investigation against Lillian (L. Add. St. ¶ 22).
On July 19, 2012 the formal investigation charged Lillian
with violating three provisions of Amtrak's standards of
(1) the Attending to Duties standard, (2) the Professional
and Personal Conduct (Teamwork) standard, and (3) the
Professional and Personal Conduct (Conduct) standard.
Specifically, the charge accused Lillian of (1) not finishing
his work assignment when he left Train 21 without completing
the dorm car set up on May 30, 2012; (2) not conducting
himself professionally when managers made him aware that he
needed to return to the train to complete the dorm car
set-up, and (3) taking lunch on June 30, 2012 without first
completing his duties on Train 21.
(A. St. ¶ 46). Following a formal hearing in November
2012, Amtrak's hearing board issued Lillian a deferred
suspension (id. ¶ 54).
requested another accommodation around that same time (L.
Add. St. ¶ 25), asking "to be allowed to take time
to maintain [and] control my diebetic [sic] needs as
prescribed by my Doctor" (A. St. ¶ 25). In support
of the request Lillian submitted a letter from his doctor
stating that his diabetic condition "require[s] him to
eat on a regular schedule" and that it "is
important that he have a meal between 11-1pm daily"
(id.). On January 24, 2013 Amtrak granted an
accommodation of two 5 to 10 minute breaks during each shift
as needed (L. Add. St. ¶ 25). Lillian asserts that
throughout that time his managers continued to threaten that
he would lose his job when he mentioned his need to eat for
medical reasons (id. ¶ 27). In March 2013
Lillian requested that Amtrak amend his accommodation to
receive a break of up to 30 minutes and up to two 5 to 10
minute breaks (id. ¶ 26). That request was
approved on April 23, 2013 (id.).
all of the issues as to meeting his diabetic needs, Lillian
filed charges with EEOC asserting disability-based
discrimination in December 2012 (A. St. ¶ 76). He also
continued to make internal complaints of disability
discrimination to Amtrak regarding the refusal of his
supervisors and managers to grant his request for the
accommodation (id. ¶ 78). On January 14, 2014
EEOC issued Lillian a right to sue letter (L. Mem. 13).
Lillian had complained of an October 2013 incident in the
filing in which he requested a lunch break from his
supervisor, who then responded, "How are we supposed to
get work done if you eat lunch?" (L. Add. St. ¶