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Morris v. BNSF Railway Co.

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

August 22, 2019

RON MORRIS, Plaintiff,



         Ron Morris sued his former employer BNSF Railway, alleging that he was terminated because of his race in violation of Title VII. After trial, the jury found in Morris's favor and awarded him compensatory damages of $375, 000 and punitive damages of $500, 000. BNSF has moved for judgment as a matter of law or alternatively for a new trial. For the reasons set forth below, the Court grants BNSF's new trial motion to the extent that it seeks remittitur of the award of compensatory and punitive damages but otherwise denies the motions.


          Beginning in 2004, Morris worked as a conductor for BNSF for nine years. On March 7, 2013, while Morris was operating a train between the Illinois cities of Savanna and Aurora, he sped through multiple restricted-speed areas in violation of BNSF's General Code of Operating Rules. He also failed to report these violations as required by the rules.

         BNSF discovered these violations several days later when it performed a review of the locomotive event recorder. In April, the company held a formal investigation hearing led by Division Trainmaster Brett Russell. Russell recommended charging Morris with six violations of the General Code of Operating Rules and suspending him for thirty days, followed by a review period of thirty-six months.

         Morris's supervisor, Scott Hendrickson, shared the investigation hearing transcript and Russell's recommendation with Andrea Smith, a member of BNSF's disciplinary committee. Smith recommended firing Morris, noting that his multiple violations during one run constituted a stand-alone dismissible violation under BNSF's Policy for Employee Performance Accountability. Morris was fired on April 30, 2013.

         Morris, who was a member of the United Transportation Union, appealed his dismissal to a board of neutral arbitrators pursuant to the collective bargaining agreement between the BNSF and the Union. After the arbitrators upheld his dismissal, he filed a complaint with the Illinois Department of Human Rights and the United States Equal Employment Opportunity Commission.

         Morris brought this suit alleging that BNSF wrongfully discharged him because of his race in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. After the Court denied BNSF's motion for summary judgment, see Morris v. BNSF Ry. Co., No. 15 C 2923, 2018 WL 4742105 (N.D. Ill. Oct. 2, 2018), the case proceeded to trial. After the four-day trial, the jury found in Morris's favor and awarded $375, 000 in compensatory damages and $500, 000 in punitive damages.

         The Court then held a bench trial on the issues of reinstatement, back pay, and front pay. The Court overruled BNSF's defense of failure-to-mitigate with respect to the award of back pay (which amounted to $531, 292 including wages, prejudgment interest, pension contributions, and health insurance benefits) but declined to order reinstatement. Dkt. no. 235. Based on the parties' submissions proposing front-pay calculations, the Court awarded front pay of $137, 450. Dkt. no. 239.

         BNSF has moved for judgment as a matter of law or alternatively for a new trial. It contends that Morris' evidence is insufficient to support the verdict-specifically, that he did not point to similarly situated non-African-American employees who were treated more favorably. BNSF also argues that it is entitled to judgment as a matter of law on the issue of damages or, in the alternative, that the Court should order a remittitur because the jury's award of compensatory and punitive damages is excessive. Finally, BNSF contends that a new trial is warranted based on this Court's decisions excluding the testimony of certain late-disclosed defense witnesses and because the Court declined to include a proposed jury instruction.


         Judgment as a matter of law is appropriate if "a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed.R.Civ.P. 50(a)(1); Martin v. Milwaukee County, 904 F.3d 544, 550 (7th Cir. 2018). The Court may not assess credibility or weigh evidence, and it must "construe the evidence in favor of the party who won before the jury." Martin, 904 F.3d at 550.

         Under Federal Rule of Civil Procedure 59, the party seeking a new trial must show that the verdict is against the clear weight of the evidence or the trial was unfair to the moving party. Martinez v. City of Chicago, 900 F.3d 838, 844 (7th Cir. 2018). "[A] court will set aside a verdict as contrary to the manifest weight of the evidence only if no rational jury could have rendered the verdict." Whitehead v. Bond, 680 F.3d 919, 928 (7th Cir. 2012) (alteration in original). In making this determination, the Court "has the power to get a general sense of the weight of the evidence, assessing the credibility of the witnesses and the comparative strength of the facts put forth at trial." Id.

         Because BNSF supports its new trial motion with the same arguments it advances in support of its motion for judgment as a matter of law, the Court will consider them together.

         A. Comparator evidence

         BNSF's first set of arguments concerns the evidence presented at trial regarding similarly situated non-African-American employees who were not fired. BNSF contends that these comparators did not engage in misconduct sufficiently similar to Morris's to furnish a legally adequate comparison. It also argues that Morris did not point to evidence that the comparators were disciplined by the same decisionmakers as he was and that the evidence concerning BNSF's procedures for waiver and alternative handling does not bolster the comparator evidence. The Court addresses each argument in turn.

         1. Comparable conduct

         BNSF contends that Morris did not introduce evidence that the comparators engaged in sufficiently serious misconduct to be similarly situated to Morris. The Court addressed this issue in its summary judgment ruling and rejected BNSF's nearly identical arguments. See Morris, 2018 WL 4742105, at *3-4. The Court reiterates that comparators "need only be similar enough to enable a meaningful comparison." Coleman v. Donahoe, 667 F.3d 835, 848 (7th Cir. 2012) (internal quotation marks omitted).

         BNSF emphasizes that Morris was operating a "key train"-i.e., one carrying hazardous materials-and that the comparators were not. But as the Court previously ruled, BNSF pointed to no evidence that it generally treats violations relating to key trains differently than other serious rule violations for disciplinary purposes. See Morris, 2018 WL 4742105, at *4. BNSF relies on a recent Seventh Circuit case, Graham v. Arctic Zone Iceplex, LLC, 930 F.3d 926 (7th Cir. 2019), to argue that it was not required to show that its written policies imposed more severe sanctions for key-train violations in order to distinguish the comparators on that basis. See Id. at 930 (holding that an employer does not forfeit its right to rely on particular instances of misconduct in explaining its decision to terminate an employee merely because the employee was not formally reprimanded for his misconduct). But in Graham, the court considered only whether a jury could reasonably disregard evidence of the plaintiff's disciplinary history solely because he was not issued written reprimands. This case, by comparison, concerns BNSF's written policies, not particular instances of past discipline. The fact that the policies made no mention of key trains supports a reasonable inference that BNSF itself considered the other employees' violations to be comparably serious. See Coleman, 667 F.3d at 848 (noting that the similarity of comparators depends in part on "whether the employer subjected them to different employment policies"). Moreover, unlike the plaintiff in Graham, Morris was not required to show that BNSF's "key train" explanation was false or pretextual; rather, he needed to establish only that the fact that he was operating a key train did not distinguish his violation so significantly that it precluded a meaningful comparison. See Id. It would therefore be reasonable for a jury to reject this distinction as a basis on which to disregard the comparator evidence.

         BNSF also points to a litany of specific circumstances surrounding Morris's termination: he committed two speeding violations in a single run of a key train, he failed to self-report those violations, and each of the violations could have led to decertification under the rules promulgated by the Federal Railway Administration. But the Seventh Circuit has made clear that "employees may be similarly situated to the plaintiff even if they have not engaged in conduct identical to that of the plaintiff." Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Athletics Dep't, 510 F.3d 681, 689 (7th Cir. 2007); see also Coleman, 667 F.3d at 850-51. Morris presented evidence that the comparator's violations were comparably serious even if they differed in some ways; for example, an employee named Kellan Smith was granted a waiver and kept his job after he intentionally disabled safety equipment on a train so that it could exceed speed limits. The jury then heard evidence that Hendrickson gave Smith waiver a second time after Smith committed a serious violation while on probation for the first offense. BNSF and Hendrickson attributed this leniency to the timing of Smith's firing-he was terminated in 2010, three years before Morris, when BNSF contends that it enforced its policies less stringently-but the jury could have reasonably declined to credit this explanation given the relatively short interval between these events.

         BNSF again cites the Seventh Circuit's recent decision in Graham, in which the court affirmed summary judgment for the defendant on the plaintiff's claim that he had been unlawfully terminated because of disability. The court explained that the only alleged comparator was not similarly situated to the plaintiff. The comparator had a "sterling employee record" and caused an accident that did not endanger the defendant's customers-in stark contrast to Graham, who had a record of misbehavior and who created a hazard to customers when he crashed a Zamboni. Graham, 930 F.3d at 930. Graham does not undermine Morris's comparator evidence in this case: BNSF has not pointed to evidence or even argued that Morris's disciplinary history was relevant to the decision to terminate him, and a jury could reasonably conclude that some of the comparators (including Kellen Smith, for example, who derailed a train after purposely disabling safety equipment to make it go faster) engaged in equivalently dangerous misconduct.

         BNSF also argues, albeit in a fairly cursory fashion, that it is entitled to a new trial because the Court erroneously admitted evidence of employees who are not comparable, thus purportedly confusing the jury. But although BNSF objected to this evidence in its motions in limine, it did not make an argument based on jury confusion- rather, it argued that the evidence should be excluded because it was needlessly cumulative and legally insufficient (arguments the Court rejected as pertaining to weight rather than admissibility). BNSF thus forfeited its objection regarding jury confusion. See Wilson v. Williams, 182 F.3d 562, 567 (7th Cir. 1999) (explaining that Federal Rule of Evidence 103(a)(1) "requires a litigant to state a specific ground for an objection to evidence; grounds not presented cannot be raised later . . . .").

         Even if BNSF had not forfeited the point, the Court finds that the risk of confusion was minimal in the context of this case. The evidence presented and issues to be determined at trial were not particularly complicated. The central issue in the case- whether non-African-American employees were given more favorable treatment than Morris for comparable violations-required the jury to consider whether the other employees were similarly situated. See Coleman, 667 F.3d at 846 ("Whether a comparator is similarly situated is usually a question for the fact-finder . . . ."). Far from confusing the issues or distracting the jury, the evidence to which BNSF objects went to the heart of the dispute. That some of this evidence may not have been legally sufficient does not provide a basis to exclude it because BNSF has not shown that "its probative value is substantially outweighed by the danger of confusing the issues." White v. Hefel, 875 F.3d 350, 355 (7th Cir. 2017).

         2. Identity ...

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