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Harris v. Union Pacific Railroad Co.

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

September 30, 2019

AARON HARRIS, Plaintiff,


          Robert M. Dow, Jr. United States District Judge

         Before the Court is Defendant’s motion for summary judgment [42]. For the reasons set forth below, the motion [42] is granted in part and denied in part. The case is set for further status on October 9, 2019 at 9:00 a.m.

         I. Background[1]

         Defendant Union Pacific Railroad Company (“Union Pacific” or “Defendant”) is a common carrier by rail in interstate commerce. [43, at ¶ 1.] Plaintiff Aaron Harris is an employee within the commuter operations service unit of Union Pacific in Chicago, Illinois. [Id. at ¶ 2.] Plaintiff held various positions with Defendant until he was promoted to a tower operator in 2004. [Id.] Plaintiff remained in that position and believed that it was “a better job” than working in the yard because it was safer and paid more. [43-2 (Pl.’s Dep. Tr.), at 12-13.] A tower operator is responsible for the movement of trains within a train yard. [43, at ¶ 5.] A tower operator directs engineers, conductors, and hostlers in moving trains from point A to point B; controls signals; and ensures the safety of employees working on the tracks by putting trains on opposite tracks. [Id.]

         Plaintiff worked on the Extra Board during his training for the tower operator position, which meant that he did not have a set schedule or worksite. [Id. at ¶ 7.] He was required to work five days a week at whatever tower and shift Defendant directed him to staff. [Id.] However, a mandatory rest time of 15 or 16 hours was required after Plaintiff worked an 8-hour shift. [45 (Pl.’s Resp. to Def.’s Stmt. of Facts), at ¶ 7.] ¶ 2005, Plaintiff transitioned to an Emergency Board position and remains in that position today. [43, at ¶ 8.] An Emergency Board tower operator fills temporary vacancies in tower operator positions. [Id.] As an Emergency Board tower operator, Plaintiff is responsible for filling in for someone who calls in sick, has an emergency, or is on vacation. [Id.] It also is Plaintiff’s responsibility to assist at towers when required and/or when additional tower operators are needed temporarily. [Id.] At the time of the briefing of this motion, Plaintiff was working six days a week. [Id. at ¶ 9.] He has one day off each week; however, his day off changes every week. [Id.] The shifts and days that Plaintiff works are subject to change because he is on call and fills in when needed. [Id.] At all relevant times, Conrad Banda (Assistant Manager of Terminal Operations, Hispanic) was Plaintiff’s supervisor. [Id. at ¶ 10.]

         Plaintiff first had an issue with Banda relating to a December 2011 request from Plaintiff to take a sick day. Although the parties dispute the circumstances surrounding the December 2011 request, the details of the issue are not relevant to the Court’s analysis. What is relevant is that Plaintiff filed an internal EEO Complaint or Values Line Complaint against Banda in relation to the request. [43-4 (Def.’s Ex. D).] Although the report from the complaint indicates that Plaintiff stated that other employees call in sick more often without any problems [id.], nothing in the complaint references race or any other protected status.

         In this case, Plaintiff complains that he and other African-American employees were treated differently than non-African-American employees by Banda in connection with their use of sick time. When Plaintiff was asked why he believed that he was being treated differently with respect to sick time, Plaintiff responded: “You know what, I don’t know why I was being treated differently.” [Id. at ¶ 15.] When asked whether he just felt that he was being treated differently, Plaintiff responded: “I feel that I were [sic] not the fact that these were all Caucasian and Latino, and I’m a black guy. You know, it would appear on the surface that would be the reason why. Now, I am not sure why.” [Id.] Plaintiff admits that Banda never told him that he could not take a sick day. [Id. at ¶ 16.] Plaintiff also admits that nobody ever made a comment to Plaintiff about his race. [43-2 (Pl.’s Dep. Tr.), at 79.] Plaintiff further admits that nobody ever told him that he was treated differently with respect to sick days because of his race. [Id.] However, Plaintiff testified that he started having issues with Banda when he started pressing Plaintiff about his use of sick days. For example, when Plaintiff would request a sick day, Banda would ask Plaintiff what was wrong with him and why he needed a sick day.[2] [Id. at 43-44.] On May 5, 2014, three years after Plaintiff filed his first complaint against Banda, Superintendent of Commuter Operations Arnold Robinson (an African American), sent Plaintiff a letter titled “Letter of Warning – Attendance.” [43 at ¶ 17.] Banda admitted to initiating the warning letter to Plaintiff regarding his attendance record. [46, at ¶ 3.] The letter states: “[A] recent review of your attendance history indicates you may be in violation of Union Pacific Attendance Policy.” [Id.] Even though Plaintiff did not have a set schedule, he acknowledges that Union Pacific’s Clerical Attendance Policy (the “Attendance Policy”) applied to him at all relevant times. In relevant part, the Attendance Policy states:

As a Union Pacific employee, you were hired for and are expected to protect your job assignment on a full-time basis. “Full-time” means being available to work your assignment, whether regular or extra, whenever it is scheduled to work * * * It is your responsibility to notify your manager, in advance of layoffs if possible, on personal or family issues that may affect your ability to work full time * * * You may be considered in violation of this policy regardless of the explanation offered if you are unable to work full time and protect all employment obligations * * * Employees who do not work full-time, will be identified. Identification will include employees with:
• Frequent, or pattern of, layoffs around rest days.
• Frequent, or pattern of, holiday layoffs.
• Frequent or personal layoffs.

[Id. at ¶ 18.] A warning letter is issued when an employee shows a frequent number of layoffs-two or more or three or more in a 90-day period. [46, at ¶ 3.] During his deposition, Plaintiff testified that abusing sick time meant constantly calling off sick or taking sick days with “off days.” [43-2 (Pl.’s Dep. Tr.), at 50.] Plaintiff further agreed that taking sick time for a purpose other than being sick would qualify as abusing sick time. [Id.] Although Plaintiff agreed that tacking sick days onto off days would qualify as abusing sick time, he testified that he did not know whether tacking sick days onto vacation days would qualify as abusing sick time. [Id.]

         Plaintiff testified that after he received the warning letter, no investigation was conducted. [43. at ¶ 22.] Plaintiff never was formally disciplined, suspended from work, docked any pay, or issued any kind of rule violation. [Id.] Furthermore, his job assignment did not change. [Id.] After receiving the warning letter on May 8, 2014, Plaintiff immediately filed his second Values Line complaint against Banda. [43-7 (Def.’s Ex. G).] In his second Values Line complaint, Plaintiff stated that “it is impossible for him to never be sick. Therefore Banda should not get angry when he has to miss work due to illness.” [Id.]

         At the time Plaintiff received the warning letter, he had taken one week of vacation from May 2 through May 6, 2014 and had called off sick for April 30 and May 1, the two days before his scheduled vacation. [43, at ¶ 20.] The May 5, 2014 warning letter is the only warning letter that Plaintiff has received after taking a sick day. [Id.] Plaintiff’s attendance records further show that he took a week of vacation from May 3, 2012 through May 7, 2012 and that called in sick for May 8 and May 9, the two days after his vacation was scheduled to end. [Id. at ¶ 21.] Plaintiff took a week of vacation from September 20, 2012 through September 24, 2012, and he called in sick on September 19, the day preceding his vacation. [Id.] Plaintiff took a week of vacation from May 1, 2013 through May 6, 2013, and he called in sick on May 7, the day after his vacation ended. [Id.]

         When asked about employees who Plaintiff contends used more sick time than him, Plaintiff identified M. L. “Mike” Di Paolo, Thomas Melson, Steve Dynaba, and Benny Mendoza. [43-2 (Pl.’s Dep. Tr.), at 73.] Defendant produced reports indicating that the first three of these employees (Di Paolo, Melson, Dynaba) were supervised by Craig A. Lockhart at the time the reports were generated. [43-9 (Def.’s Ex. I); 43-10 (Def.’s Ex. J); 43-11 (Def.’s Ex. K).] Defendant produced a similar report indicating that Mendoza was supervised by Fabian Graumann at the time the report was generated. [43-12 (Def.’s Ex. L).] However, these reports were not generated during the relevant time period. The Court therefore cannot rely on the then current supervisor listed in these reports to establish who supervised these employees during the relevant time period. Still, with respect to Di Paolo, the report relating to him indicates that Lockhart was Di Paulo’s supervisor as far back as 1996. [43-9 (Def.’s Ex. I), at 11 (noting Lockhart as Di Paulo’s supervisor at the time of disciplinary events occurring in 1996, 2010, and 2014). ] Plaintiff has not identified any additional evidence regarding who supervised these employees during the relevant time period. [45 (Pl.’s Resp. to Def.’s Stmt. of Facts), at ¶ 27.] It therefore is unclear from the record whether Melson, Dynaba, and Mendoza had the same supervisor as Plaintiff during the relevant time period. It is undisputed, however, that none of the comparators identified by Plaintiff worked the same job as him, as none of them were on the Emergency Board. [43, at ¶ 29.] Furthermore, Plaintiff testified that he did not know the number of sick days to which these employees were entitled. [Id.]

         After night-shift tower operator Steve Dedina passed away, Banda started assigning Plaintiff and another employee to work Dedina’s shifts. [43-2 (Pl.’s Dep. Tr.), at 124-27.] This resulted in Plaintiff being assigned erratic shift schedules, switching back and forth between day and night shifts. [Id. at 124.] On February 23, 2015, Plaintiff complained to Patrick “Jay” Michael about the way Banda was scheduling Plaintiff. Plaintiff testified that he told Michael that the schedule was bad for his health. [Id. at 123.] Plaintiff also testified that his schedule was leaving him exhausted [id. at 123-25], but it is not clear from the record whether Plaintiff told Michael that he was exhausted. Although Michael could not recall the exact words that Plaintiff used during this discussion, he testified that Plaintiff said that his schedules were “starting to impact [him] doing [his] job safe[ly]” or words close to that effect. [46-6 (Michael Dep. Tr.), at 23.] Plaintiff denies that he ever said that he could not perform his job safely. [46, at ¶ 16.][3] For the purposes of this motion, the Court credits Plaintiff’s denial.

         Michael also testified that Plaintiff stated during this discussion that he was taking medication but refused to reveal what medication he was taking at the time. [46-6 (Michael Dep. Tr.), at 20.] However, Plaintiff denies that he made such a statement. Plaintiff contends that it was Michael who first raised the issue of medication. [Id. at 132.] Plaintiff further testified that he was not taking any medication at that time that made it unsafe for him to work. [43-2 (Pl.’s Dep. Tr.), at 132-33.] Again, when considering Defendant’s motion for summary judgment, the Court must credit the testimony of Plaintiff. Michael testified that he referred Plaintiff for a Fitness for Duty (“FFD”) evaluation as a result of this conversation. [43-13 (Michael Dep. Tr.), at 12-13.] According to Defendant’s “Medical Absence/Fitness for Duty” policy, “[FFD] evaluations may be requested when an employee’s supervisor * * * becomes aware of medical conditions or behaviors indicating possible physical or mental impairment that could compromise safety.” [46, at ¶ 11.] Defendant also has a “Fitness for Duty Evaluations” policy, which states in relevant part:

Fitness-For-Duty Evaluations
A Fitness-for-Duty Evaluation may be initiated by HMS and/or a Supervisor.
Supervisor Initiated
Supervisors have the ability to request a Fitness-for-Duty evaluation on credible information which raises a concern about the employee’s ability to safely perform his/her job duties. The supervisor may remove the employee from service during the review period.

[Id. at ¶ 9.] When asked what “credible information” means to him, Michael testified that “it means any information that a manager has that is substantial enough to warrant a look into whether the employee can safely discharge his duties.” [Id. at ¶ 10.] On February 23, 2015, Plaintiff was pulled out of service for an FFD evaluation on the same day that he complained to Michael.[4] [43, at ¶ 34.] Plaintiff fully was reinstated to the same position at the same location on April 15, 2015. [Id.] Plaintiff has remained on active duty ever since his reinstatement. [43, at ¶ 34.] Plaintiff testified that he was not paid while he was taken out of service. [43-2 (Pl.’s Dep. Tr.), at 145-46.]

         When asked what he went through during the two months that he was out ...

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