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Moore v. CN Transportation Ltd.

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

December 30, 2019

LERONE MOORE, Plaintiff,
v.
CN TRANSPORTATION LIMITED, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT M. DOW, JR. JUDGE

         Before the Court is the motion for summary judgment [34] filed by Defendant Illinois Central Railroad Company (“Defendant” or “Company”). For the reasons set forth below, the motion [34] is granted. Judgment shall be entered in favor of Defendant Illinois Central Railroad Company and against Plaintiff. Although CN Transportation Limited is listed as a Defendant on the docket, CN Transportation never answered or otherwise appeared in this matter. Plaintiff is given until January 14, 2020 to file a status report apprising the Court of the status of his claims against that Defendant.

         I. Background

         A. Procedural History and General Background

         On August 25, 2017, Plaintiff Lerone Moore (“Moore”) filed a complaint against Defendant alleging race discrimination and retaliation in violation of 42 U.S.C. § 1981. [41 (Stmt. of Add'l Facts), at ¶ 1.] Defendant is a rail carrier engaged in interstate commerce that does business in this District. [Id. at ¶ 3.] Defendant hired Plaintiff in May 2008 as a laborer/hostler. [Id. at ¶ 4.] Plaintiff worked in the Company's mechanical department at the Woodcrest Shop. [Id. at ¶ 7.] As a laborer in the mechanical department, Plaintiff was responsible for servicing and cleaning locomotives; transporting supplies and materials between works area and storage site; and performing a variety of support and clean-up activities for locomotive and car repair operations. [Id. at ¶ 13.] As a hostler, Plaintiff had a license to move locomotives within a certain area of the mechanical yard and was responsible for moving locomotives as instructed. [Id. at ¶ 14.]

         Laborers/hostlers like Plaintiff were directly supervised by front line supervisors/foremen, who reported to the general foreman. [Id. at ¶ 8.] The general foreman reported to the assistant manager of the shop. [Id. at ¶ 9.] From about 2010 until 2013, the assistant manager of the Woodcrest Shop was Kevin Gebhardt. [Id.] The assistant manager of the Woodcrest Shop reported directly to the manager of the Woodcrest Shop. [Id. at ¶ 10.] From 2011 to November of 2013, the manager of the Woodcrest Shop was Bryan Willis. [Id.] The manager of the Woodcrest Shop (and managers of other shops across the United States) reported to the assistant chief mechanical officer. [Id. at ¶ 11.] Phil Yourich was the assistant chief mechanical officer based out of Gary, Indiana, beginning in December 2012 until March 2018. [Id.] Willis reported directly to Yourich. [Id.] The assistant chief mechanical officer reported to the vice president of mechanical. [Id. at ¶ 12.] From approximately 2002 until September 2016, the vice president of mechanical was Jim Danielwicz. [Id.]

         B. Disciplinary Procedures and Attendance Rules

         Laborers/hostlers are members of the Fireman Oilers Union, subject to a collective bargaining agreement (the “CBA”). [Id. at ¶ 15.] Discipline is administered to laborers/hostlers according to the provisions of the CBA. [Id. at ¶ 16.] Pursuant to the CBA, investigation hearings must occur before Defendant assesses discipline. [Id.] Investigation hearings are conducted by a hearing officer and transcribed by a court reporter. [Id.] The purpose of an investigation hearing is to determine whether a rule violation has been committed. [Id.] Coaching letters may be issued without an investigation. [Id. at ¶ 17.] Typically, while Willis was the manager of the Woodcrest Shop, he would decide whether an investigation should be pursued in a given situation. [Id.] As manager, it was Willis's job to make a recommendation regarding discipline following an investigation. [Id. at ¶ 18.] Willis would generally review investigation transcripts after they were completed and, based on the transcript, determine whether disciplinary action was warranted. [Id.] If Willis believed disciplinary action appropriate, he would advise Yourich. [Id.] If Yourich agreed that discipline was warranted, he would advise Danielwicz of Willis's recommendation. [Id. at ¶ 19.] Yourich generally left the assessment of what level of discipline was appropriate in a given situation to Willis. [Id.]

         Plaintiff received and was subject to the Mechanical/Material Department General Regulations. [Id. at ¶ 20.] Rule 17 applied to all employees at Woodcrest, including laborers and electricians. [41 (Stmt. of Add'l Facts), at ¶ 1.] Plaintiff understood that Rule 17 applied to him, as a member of the Mechanical Department. [36 (Stmt. of Facts), at ¶ 20.] Rule 17 reads:

Employees must report for duty at the designated time and place with the necessary equipment to perform their duties and until the end of tour of duty. Those subject to call must not leave their usual calling place without notifying those required to call them, or leaving information as to where they can be located. Employees must not engage in other business, absent themselves from their duties during working hours * * * unless authorized to do so during assigned working hours. * * * Employees are required to work a scheduled 40-hour workweek as committed to in their respective collective bargaining agreements without excessive layoffs or absences. In cases of illness or other reasons of absence, employees must inform their supervisor by telephone at the earliest possible time, no later than their scheduled starting time[.]

[36 (Stmt. of Facts), at ¶ 20.] During Plaintiff's first term of employment and up until 2013, laborer/hostler attendance was monitored at the shop level. [Id. at ¶ 21.] Prior to May 1, 2013, laborer/hostlers were required to call their direct supervisors (the foremen) to report absences. [Id. at ¶ 22.] Neither Gebhardt nor Willis would review employees' attendance records unless someone reported an issue. [44-4 (Gebhardt Dep. Tr.), at 20; 44-1 (Willis Dep. Tr.), at 13-14.] While looking into an employee's attendance records for disciplinary purposes, the standard practice while Willis was manager of Woodcrest was to review the preceding ninety days in light of Rule 17. [36 (Stmt. of Facts), at ¶ 22.]

         In 2013, Defendant established the Attendance Management Center (“AMC”). [Id. at ¶ 23.] The AMC began operation on May 1, 2013. [Id.] As of that date, new attendance guidelines were effective (the “AMC Guidelines”), and all unionized employees at the Company were expected to call the AMC to report absences. [Id.] Both before and after the AMC was created, a supervisor could give an employee permission to be off work. [Id. at ¶ 24.] A doctor's note, however, would not automatically excuse an absence. [Id.] Mechanical supervisor Janet Washington posted information about the new guidelines and call-in procedure throughout the Woodcrest Shop. [Id. at ¶ 25.] Plaintiff was aware of the new requirements. [Id.] Pursuant to the AMC Guidelines, employee attendance was subject to review, investigation, and corrective action if, within a twelve-week period, an employee accrued more than two unexcused absences of any duration, missed more than three work days without approval, or had more than one unexcused absence on a holiday or immediately before or after a holiday, rest day, Personal Leave Day, vacation day, or FMLA day. [Id. at ¶ 26.] Corrective action guidelines (“CA Guidelines”) associated with the AMC were implemented beginning on May 24, 2013. [Id. at ¶ 27.] The CA Guidelines stated that the Company would “consider the employee's entire disciplinary record when issuing discipline for an established violation of these Guidelines” and provided recommended progressive corrective actions for employees who had no existing discipline on their records. [Id.] The CA Guidelines further provide that “[a]n employee is subject to review, investigation and/or correction if unexcused absences reach any of the following levels during any 12-week period: [1] More than 2 occurrences of any duration, [2] more than 3 total work days missed, [or] [3] more than 1 occurrence that is on a holiday or immediately before or after a holiday, rest day, Personal Leave Day (PLD), vacation day, or Family Medical Leave Act (FMLA) day.” [37-2 (Moore Ex. 33), at 32.] The guidelines supplemented, but did not replace, Rule 17. [36 (Stmt. of Facts), at ¶ 28.] After the AMC was created, all violations of AMC Guidelines were considered “excessive” under Rule 17. [Id. at ¶ 28.] After the AMC began operations, the AMC would alert Woodcrest management to attendance issues, typically by sending an email to management regarding each violation of a Guideline. [Id. at ¶ 29.]

         Willis had discretion to decide not to impose discipline under the Guidelines. [41 (Stmt. of Add'l Facts), at ¶ 29.] Willis testified that, under Rule 17, employees could be disciplined for approved absences if the employee's absences were excessive. [Id.] When asked whether he would be less likely to discipline someone who was absent for a legitimate reason, Willis testified that it would depend on the situation and that he would use his discretion to determine what was legitimate. [Id.] Gebhardt testified that absences covered under the FMLA and absences due to being subpoenaed were not counted against employees under Rule 17.[1] [Id.] He also said that absences shown in an employee's records because the employee worked as a relief supervisor would not be counted against them. [Id.] Before the AMC Guidelines were put into place, Willis considered absences of around 40 hours over a 90-day period to be excessive under Rule 17. [Id. at ¶ 30.] Willis also testified that 48 hours of absences in 90 days could be tolerable or excessive depending on the circumstances. [Id.]

         Washington testified that-before the AMC Guidelines were put into place-employees would be given a verbal warning if they were absent a certain number of hours (she believed the threshold was 48 hours) during a 90-day period. [Id. at ¶ 6.] If the verbal warning did not correct the problem, they would move on to a letter to the employee's file, followed by an investigation. [Id.] Gebhardt testified that he believed this testimony was accurate. [44-4 (Gebhardt Dep. Tr.), at 91.]

         C. Plaintiff's History with Attendance Issues

         In July 2008, Plaintiff received an evaluation from foreman Steve Fedro, which noted that “absenteeism is not dealt with lightly.” [36 (Stmt. of Facts), at ¶ 30.] Fedro rated Plaintiff's “On Time Reporting” a 1 out of 5, meaning “poor, ” the lowest possible score. [Id.] Plaintiff admits that he was “probably” having absenteeism issues in the summer of 2008. [Id.] On April 8, 2009, Brad Robertson, then manager of the Woodcrest Shop, issued Plaintiff a letter informing him that Defendant considered his record of absenteeism over the preceding ninety days excessive and unacceptable in violation of Rule 17. [Id. at ¶ 31.] During the ninety-day period in question, Plaintiff had been absent five days and missed another 14.88 hours of work due to arriving late or leaving early. [Id.] The letter informed Plaintiff that he was expected to improve his attendance record immediately to avoid disciplinary action. [Id.] Plaintiff admits that he had attendance issues at the time this letter was issued. [Id.] On July 14, 2010, Kenneth Karlin, then manager of the Woodcrest Shop, met with Plaintiff to discuss his failure to properly notify his supervisor of his absences on several occasions. [Id. at ¶ 32.] After the meeting, Karlin issued Plaintiff a letter counseling him on the subject. [Id.] The letter specifically reminded Plaintiff that employees were expected to “work regularly without excessive layoff or absences” under Rule 17. [Id.]

         From August 7-13, 2010, Plaintiff was absent from work for five consecutive days without permission.[2] [Id. at ¶ 33.] Pursuant to Rule 27 of the CBA, on August 13, 2010, Plaintiff was deemed to have abandoned his job and was separated from employment. [Id.] Gebhardt issued Plaintiff a letter informing Plaintiff of this fact. [Id.] Plaintiff challenged his separation through the Union and sought reinstatement through a neutral arbitration before the Public Law Board (“PLB”). [Id.] As ordered by the arbitrator, Defendant reinstated Plaintiff on a last-chance basis. [Id. at ¶ 35.] Plaintiff understood that the “last chance admonition” in the PLB order meant that further absenteeism would result in the termination of his employment. [Id.]

         D. 2012 Cautionary Letter and Human Resources Complaint

         On March 20, 2012, foreman Sean Moran issued Plaintiff a cautionary letter. [Id. at ¶ 36.] The letter noted that Plaintiff moved two locomotives to the wrong location. [Id.] When asked to move them to the correct location, Plaintiff repeatedly argued with Moran about the instruction. [Id.] Additionally, the letter noted that Plaintiff refused a directive from his supervisor to return paperwork to him. [Id.] Plaintiff was notified that this behavior “constitute[d] insubordination and [would] not be tolerated.” [Id.] Plaintiff testified that he believed Moran issued this letter pursuant to a directive from management to retaliate against and mistreat Plaintiff. [Id.]

         On May 22 or 23, 2012, [3] Plaintiff called human resources and lodged a complaint regarding foreman Joe Jackson. [Id.] Plaintiff spoke to human resources associate Veronica Loewy and complained that Jackson had been “threatening, ” “cursing, ” and “yelling” at him. [Id.] Plaintiff reported that he felt he was harassed, discriminated against, and retaliated against by Jackson. [Id.] He also reported that he felt Jackson was trying to get him fired. [Id.] Plaintiff informed Loewy that this was the second time Jackson hollered at him. [Id.] Plaintiff told Loewy that Jackson was upset because Plaintiff did not immediately move a locomotive as Jackson requested. [Id.] Instead, Plaintiff told Jackson that he would have to be put on a list because Plaintiff was in the middle of moving a different locomotive. [Id. at ¶ 38.] Plaintiff reported to Loewy that he heard from a coworker that Jackson referred to Plaintiff as a “smart talking little bitch.” [Id.] Plaintiff told Loewy that Jackson (without any witnesses around) cursed and “hollered at” Plaintiff. [Id.] Plaintiff testified at deposition that he believes Jackson's conduct was both retaliation and racial discrimination, and that Jackson was acting on a directive from management to mistreat Plaintiff due to his race. [Id. at ¶ 39.] Plaintiff never expressed this belief to Loewy. [Id.] Jackson is African-American. [Id.]

         Loewy investigated Plaintiff's complaints and concluded that there was no violation of the Company Prohibited Harassment, Discrimination, and Anti-Retaliation Policy. [Id. at ¶ 40.] Plaintiff was provided with a letter dated June 4, 2012 informing him of the same. [Id.] The letter also stated:

[The Company] takes complaints of harassment, discrimination or retaliation very seriously and is fully committed to providing a work environment that is free of unlawful harassment, discrimination and retaliation. We maintain a strict policy prohibiting unlawful harassment and discrimination and any other legally protected status. Also, [the Company's] policies provide for the reporting of complaints regarding potential violations of its policies. IC prohibits and will not tolerate retaliation for filing a complaint or participating in the investigation of a complaint.

[Id.] The letter informed Plaintiff that Defendant expected him to report any suspected retaliation immediately so that the Company could address it and supplied him with a phone number to use in order to do so. [Id.]

         E. Plaintiff's 2012 Medical Leave

         Plaintiff went on approved medical leave for substance abuse treatment in late June 2012. [Id. at ¶ 41.] On July 5, 2012, Defendant issued a notice of investigation signed by Gebhardt regarding Plaintiff's apparent absences from work without permission from June 23-26, 2012 and for failing to work on a regular basis following his reinstatement. [Id.] On July 25, 2012, Willis sent an email to Yourich requesting permission to terminate Plaintiff's employment due to his record of absenteeism and because he did not attend the investigation hearing. [45-2 (Yourich Ex. 18), at 25.] However, when Plaintiff returned from chemical dependency treatment, he provided Gebhardt with documentation relating to his absences and no disciplinary action was taken. [36 (Stmt. of Facts), at ¶ 42; see also 44-3 (Willis Dep. Tr.), at 97-98.] On July 26, 2012, labor relations manager Karen McCarthy sent an email to Washington, Willis, and Gebhardt stating: “it is doubtful an arbitrator would uphold any discipline since we denied the Organization's request for a postponement, we proceeded despite Plaintiff's absence on a qualified medical leave from June 27 through July 27, 2012 as evidenced by the notice sent to Kevin and Janet on July 5, 2012, and he was not medically fit to attend the hearing.” [41 (Stmt. of Add'l Facts), at ¶ 9.] The parties dispute whether Gebhardt was aware that Plaintiff was in chemical dependency treatment and had approval to be away from work. [36 (Stmt. of Facts), at ¶ 42.] For the purposes of this motion, the Court assumes that Gebhardt was aware of that fact.

         F. Running a Switch Investigation

         On March 19, 2013, Plaintiff failed to stop within half the line of sight to a switch. [Id. at ¶ 43.] The first two wheels of the locomotive he was driving slid through a switch causing the switch to break. [Id.] A switch is a piece of track that can be moved in order to change which track a locomotive or train will go on. [Id. at ¶ 44.] When a locomotive or train goes through a switch that is not properly lined up to the intended track, it is referred to as “running a switch.” [Id.] Running a switch damages the switch and can cause the locomotive or train to derail. [Id.] There are many circumstances that are relevant to determining what disciplinary action is appropriate when an employee is involved in running a switch. [Id.] On March 21, 2013, a notice of investigation signed by Gebhardt was issued to Plaintiff. [Id. at ¶ 45.] The investigation was intended to determine Plaintiff's responsibility for allegedly exceeding yard speed limits and failing to stop a locomotive within half the line of sight to the switch, causing the locomotive to run through the switch on March 19, 2013. [Id.] Plaintiff was pulled out of service pending investigation. [Id.]

         According to Gebhardt, employees could be taken out of service pending an investigation hearing if they tested positive for intoxicants or drugs while on duty, committed theft of company property, committed gross insubordination, or vicious conduct, or while the results of a drug or alcohol screening were pending. [41 (Stmt. of Add'l Facts), at ¶ 13.] Gebhardt could not think of other reasons. [50 (Resp. to Stmt. of Add'l Facts), at ¶ 19.] Plaintiff did not test positive for intoxicants or drugs after the March 19, 2013 incident, and his negative alcohol and drug test results came back within 72 hours. [41 (Stmt. of Add'l Facts), at ¶ 19.] Plaintiff did not engage in any gross insubordination in connection with the March 19, 2013 incident. [Id.] Plaintiff did not engage in any vicious conduct in connection with the March 19, 2013 incident. [Id.] Plaintiff was not accused of theft of company property. [Id.] Nevertheless, Gebhardt ordered Plaintiff to be pulled out of service after the March 19, 2013 incident. [Id. at 20.] When asked why he ordered Plaintiff to be pulled out of service, he testified “best recollection would be having the results from the urinalysis and alcohol screening.” [Id.] However, Gebhardt did not know how long the screening process took or whether he was still waiting to get the results of the test as of April 11, 2013. [Id.] Plaintiff's negative alcohol and drug tests came back within 72 hours of the incident. [41 (Stmt. of Add'l Facts), at ¶ 19.]

         An investigation into Plaintiff's alleged conduct on March 19, 2013, was held on April 11, 2013. [36 (Stmt. of Facts), at ¶ 46.] Gebhardt served as the hearing officer. [Id.] Plaintiff was issued a thirty-day suspension as a result of the investigation. [Id.] During the investigation hearing on April 11, 2013, Plaintiff stated:

I've been here since 2008, and I really-there's not a day that has gone by that I feel that I have worked because I love my job so much. I really enjoy doing what I do. I really enjoy the people that I work with and around and ...

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