United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ST. EVE, UNITED STATES DISTRICT COURT JUDGE.
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.
Northern District of Illinois Local Rule 56.1
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).
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).
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
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.
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.”
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).
these standards in mind, the Court turns to the relevant
facts of this case.
Relevant Facts A. Parties
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.)
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.)
Collective Bargaining Agreement
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.)
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. (Id.)
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.)
Other Company Policies
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.)
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).
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.)
content of Rule T-4 of the SRB is at issue in this case. The
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.
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