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Holloway v. Soo Line Railroad Co.

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

January 19, 2018

DOUGLAS HOLLOWAY, Plaintiff,
v.
SOO LINE RAILROAD COMPANY d/b/a CANADIAN PACIFIC, Defendant.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE, UNITED STATES DISTRICT COURT JUDGE.

         Plaintiff Douglas Holloway (“Plaintiff” or “Holloway”) brings this action against Defendant Soo Line Railroad Company d/b/a Canadian Pacific (“Defendant” or “CP”) after Defendant terminated Plaintiff's employment following an incident with a Kubota utility vehicle at CP's rail yard. The parties have filed cross-motions for partial summary judgment pursuant to Federal Rule of Civil Procedure 56(a). Specifically, Plaintiff moves for summary judgment on Count I, in which he alleges a violation of the Federal Employers' Liability Act (“FELA”), 45 U.S.C. § 51 et seq., and Count III, in which he brings a claim pursuant to the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109 et seq. Defendant moves for summary judgment on Count II, Plaintiff's reverse discrimination claim brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and Plaintiff's FRSA claim in Count III. For the following reasons, the Court denies Plaintiff's motion for partial summary judgment and grants Defendant's motion for partial summary judgment. The only remaining claim in this lawsuit is Plaintiff's FELA claim as alleged in Count I.

         BACKGROUND

         I. Northern District of Illinois Local Rule 56.1

         Northern District of Illinois Local Rule 56.1 “is designed, in part, to aid the district court, ‘which does not have the advantage of the parties' familiarity with the record and often cannot afford to spend the time combing the record to locate the relevant information, ' in determining whether a trial is necessary.” Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 924 (7th Cir. 1994)). Specifically, Local Rule 56.1(a)(3) requires the moving party to provide “a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law.” L.R. 56.1(a)(3); Curtis v. Costco Wholesale Corp., 807 F.3d 215, 291 (7th Cir. 2015). The nonmoving party must file “a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon.” L.R. 56.1(b)(3)(B); Petty v. Chicago, 754 F.3d 416, 420 (7th Cir. 2014). The nonmoving party also may submit a separate statement of additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other materials relied upon to support those facts. L.R. 56.1 (b)(3)(C); see also Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).

         The purpose of Rule 56.1 statements and responses is to identify the relevant admissible evidence supporting the material facts, not to make factual or legal arguments. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006). Moreover, Local Rule 56.1 response requirements are “not satisfied by evasive denials that do not fairly meet the substance of the material facts asserted.” Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 528 (7th Cir. 2000). Also, “[t]he non-moving party's failure to admit or deny facts as presented in the moving party's statement or to cite to any admissible evidence to support facts presented in response by the non-moving party render the facts presented by the moving party as undisputed.” Curtis, 807 F.3d at 218-19; see also Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009) (“When a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion.”). Further, the Court may disregard statements and responses that do not properly cite to the record. See Cichon v. Exelon Generation Co., LLC, 401 F.3d 803, 809-810 (7th Cir. 2005).

         After carefully reviewing the parties' Rule 56.1 statements, the parties have failed to follow the dictates of Local Rule 56.1 in several ways. See Boss v. Castro, 816 F.3d 910, 914 (7th Cir. 2016) (“The district court's discretion to require strict compliance with Local Rule 56.1 has been upheld time and again.”). In response to certain statements of fact, for example, the parties admit the facts but then supplement the facts with further details or a legal conclusion. (See, e.g., R. 64 at ¶ 3; R. 68 at ¶ 15.) At times, Defendant fails to cite to the record, making factual statements without a single reference to the record. (See, e.g., R. 64 at ¶ 31.) Moreover, Defendant attempts to create factual disputes by challenging the inferences or implications that can be drawn from the evidence (See, e.g., R. 68 at ¶ 5.), or denying allegations in an exhibit (See, e.g., R. 68 at ¶ 6.). Defendant also includes multiple factual premises in one large paragraph instead of splitting the facts up into short, numbered paragraphs as required. (See, e.g., R. 64 at ¶ 55.) Additionally, Plaintiff misquotes exhibits or otherwise misstates the evidence. (See, e.g., R. 68 at ¶ 67, 70.) In its review of the facts, the Court disregards the factual statements where the parties fail to adhere to Rule 56.1.

         II. Admissible Evidence

         When reviewing a summary judgment motion, courts may only consider admissible evidence. Fed.R.Civ.P. 56(c); McGreal v. Vill. of Orland Park, 850 F.3d 308, 312-14 (7th Cir. 2017). “To be considered on summary judgment, evidence must be admissible at trial, though ‘the form produced at summary judgment need not be admissible.'” Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016) (quoting Wragg v. Village of Thornton, 604 F.3d 464, 466 (7th Cir. 2010)). In particular, Rule 56(c) provides that a “party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c). “A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Id. Further, an “affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Id. “A verified complaint is the equivalent of an affidavit for summary judgment purposes.” Devbrow v. Gallegos, 735 F.3d 584, 587 (7th Cir. 2013).

         Rule 56 further instructs that “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: “(1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it; or (4) issue any other appropriate order.” Fed.R.Civ.P. 56(e).

         In addition, Federal Rule of Evidence 901(a) demands that the proponent of evidence authenticate or identify the item of evidence by “produc[ing] evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a); Devbrow, 735 F.3d at 586-87 (affirming a district court's grant of summary judgment based on its decision to strike a document the plaintiff “failed to authenticate” under Rule 901). “Under Federal Rule of Evidence 901, evidence must be authenticated as a condition precedent to its admissibility.” Peals v. Terre Haute Police Dep't, 535 F.3d 621, 627 (7th Cir. 2008) (affirming a district court's grant of summary judgment based on its decision to strike a document because the evidence was “uncertified” under Rule 901). Rule 901 lists examples of evidence that can authenticate or identify an item of evidence, including testimony of a witness with knowledge “that an item is what it is claimed to be.” Fed.R.Evid. 901(b)(1).

         With these standards in mind, the Court turns to the relevant facts of this case.

         III. Relevant Facts A. Parties

         Plaintiff Douglas Holloway is male. (R. 47-2, Pl.'s Ex. 1, ¶6.) He began his employment with CP in July 2014 and, at the time of the Kubota incident on October 18, 2015, Defendant employed him as a conductor. (Pl.'s Ex. 1, ¶8; Def.'s Ex., Tab A, p. 102.) Holloway received training as a conductor from both CP as well as his former railroad company employer. (Def.'s Ex., Tab A, pp. 55, 79, 80-81; Def.'s Ex., Tab J.) As such, he had at least four years of railroad work experience before joining CP. (Def.'s Ex., Tab A, pp. 53-57; Def.'s Ex., Tab C.)

         Defendant Soo Line Railroad Company d/b/a Canadian Pacific is a Class I railroad that provides freight rail transportation services. (R. 56, Cobb Decl., ¶ 3.) One of CP's rail yard facilities is located in Franklin Park, Illinois (the “Bensenville Yard”). (Id.)

         B. Collective Bargaining Agreement

         A collective bargaining agreement (“CBA”) between the United Transportation Union (“UTU”) and CP governs the terms and conditions of Plaintiff's employment as a conductor. (Def.'s Ex., Tab A, pp. 86-87.) The CBA governs bidding rights, pay rates, benefits, seniority, furloughs, and other matters. (Id. at 86- 87, 89.) It applies to all crafts and classes of road service and yard service employees including conductors and brakemen. (R. 60, Dittrich-Bigley Decl., Tab A.) With regard to furloughs, the CBA provides under Article 12-1, entitled “Reduction in Forces, ” that “[w]hen forces are reduced, employees will be laid off in the reverse order of seniority and will be notified in writing that they have been furloughed.” (Id.)

         Under Article 9, the CBA provides covered employees with the right to a formal hearing/investigation to determine facts prior to the imposition of any discipline. (Def.'s Ex., Tab A, pp. 89-91; Dittrich-Bigley Decl., Tab. A.) An employee must first receive a written hearing notice within 10 days “after a company [o]fficer having authority to order an investigation has information of the offense of the charges pending, ” informing him/her of the nature of the charges and the date of the formal hearing/investigation. (Dittrich-Bigley Decl., Tab A.) A union representative can represent CBA-covered employees like Holloway at the formal hearing. (Dittrich-Bigley Decl., ¶ 4; see also Def.'s Ex., Tab A, pp. 91-92.) CBA-covered employees have the opportunity to present their cases at the formal hearing as governed by admissibility rules through testimony, exhibits, witnesses, and cross-examination.[1] (Id.)

         The formal hearing develops the facts surrounding the incident and allows CP to determine the employee's responsibility, if any, in connection with the incident in question. (Dittrich-Bigley Decl., ¶ 4.) CP must issue a decision within 10 days of the formal hearing/investigation. (Dittrich-Bigley Decl., Tab A, Side Letter No. 7(c).) The CBA allows for appeals of any determination made pursuant to a formal hearing up to the highest designated officer on the property and, ultimately, if appealed further, to a public law board. (Dittrich-Bigley Decl., ¶ 5; see also R. 53-2, Def.'s Ex., Tab OO.)

         C. Other Company Policies

         In addition to the governing CBA, CP also has implemented various workplace policies that prohibit discrimination on legally protected grounds and provide employees with an internal complaint procedure to report their concerns about discrimination and retaliation. (Def.'s Ex., Tab A, pp. 104-05; Def.'s Ex., Tabs G, H.; see also Cobb Decl., Tab A.) Plaintiff admits that he received training and an overview of these employment policies, but that he did not bring a complaint of discrimination to CP's human resources department or anyone else under the internal complaint procedure. (Def.'s Ex., Tab A, pp. 106-107, 112; Def.'s Ex., Tab J.)

         Another CP policy, “Incident/Accident Injury and Occupational Illness Reporting Policy and Commitment Regarding Intimidation and Harassment, ” gives whistleblower protection “to any person making use of this policy to report a violation” and provides written reporting procedures. (Def.'s Ex., Tab I; Def.'s Ex., Tab A, p. 114.) Holloway admits he made no complaints under this policy. (Def.'s Ex., Tab A, p. 116).

         D. Safety Rules

         As a railroad conductor, Holloway admits he is required to know, understand, and comply with the safety rules, including CP's operational rules called the General Code of Operating Rules (“GCOR”) (Def.'s Ex., Tab A, pp. 81-82, 86; Def.'s Ex., Tabs F, J.) as well as the Train & Engine Safety Rule Book (“SRB”) (Def.'s Ex., Tab A, p. 82; Def.'s Ex., Tab E.). Plaintiff further admits that the safety-sensitive position of a conductor involves working in and around dangerous and moving equipment, and that failure to work safely can result in injury or death to himself and others. (Def.'s Ex., Tab A, pp. 77-78.) Holloway acknowledges that he is required to have a copy of the GCOR available on his shift so he can check the rules on the job, and also that he should consult the bulletin board notices every day before starting work. (Id. at pp. 82-84.)

         The content of Rule T-4 of the SRB is at issue in this case. The rule provides:

T-4 Vehicles Used for Company Business
1. Inspect vehicles for unsafe conditions before use. Repair or tag and remove from service if defective.
2. Prior to operation of a vehicle the driver must conduct a walk around of the vehicle to identify any obstacles, clearance restrictions, or adjacent vehicles that may interfere with executing a safe movement.
***
4. Wear seat belt while operating or riding in motor vehicles equipped with them, unless engaged in inspections and traveling less than 15 mph (25 Km/h) on CP Property.

(R. 47-9, Pl.'s Ex. 8.) The parties dispute the meaning of these provisions.

         E. Employment Histories of ...


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