Thomas v. Norfolk Southern Railway Company

Filing 36

Enter MEMORANDUM OPINION AND ORDER signed by the Honorable Edmond E. Chang on March 4, 2013. For the reasons stated in the opinion, Defendant Norfolk's summary judgment motion 24 is granted. Civil case terminated. Mailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STANUEL L. THOMAS,

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Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY,
Defendant.

No. 09 CV 7383
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Plaintiff Stanuel L. Thomas alleges that his employer, Defendant Norfolk
Southern Railway Company, terminated his employment on the basis of his age and
race in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
§ 621 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. R.
1.1 Thomas also alleges that the termination was, at least in part, motivated by
retaliation for his earlier race-discrimination complaints, and that he was subjected
to a hostile work environment in violation of Title VII.2 Id. Norfolk moves for summary
judgment on all counts. R. 24. For the reasons below, Norfolk’s motion is granted.
I.
In deciding this motion for summary judgment, the Court views the evidence in
the light most favorable to Thomas and draws all reasonable inferences in his favor.

1

Citation to the record is “R.” followed by the entry number.

2

The Court has subject matter jurisdiction of this federal-question case under 28 U.S.C.

§ 1331.

Wis. Cent. Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008). Thomas is an AfricanAmerican man born in 1954. R.26, Def.’s Stmt. of Facts (DSOF) ¶ 1. Thomas began his
employment with Norfolk’s predecessor in March 1979 as a brakeman. Id. ¶ 5. Thomas
was promoted to conductor in November 1987 and to locomotive engineer in January
1998. Id. As an engineer for Norfolk, Thomas was subject to the collective bargaining
agreement between Norfolk and the Brotherhood of Locomotive Engineers and
Trainmen. Id. ¶ 6. Thomas was fired from his locomotive engineer position on May 29,
2009, following an incident that occurred on May 11, 2009. Id. ¶¶ 21, 25.3 On a number
of occasions between 1999 and 2008, Thomas made complaints to his supervisors about
disparate treatment. Id. ¶¶ 66-79.4
On May 11, 2009, Thomas was assigned to work as the engineer on a train that
was scheduled to travel over tracks owned by another railway, Canadian National. Id.
¶ 16. Ricky Connelley, a Caucasian male born in 1963, was assigned as the conductor
on the train. Id. ¶ 17. Thomas and Connelley were briefed prior to embarking on the
assignment, and received copies of a Tabular General Bulletin Order issued by
Canadian National. Id. ¶ 18. The Bulletin Order contained the Canadian National’s
rules and instructions that Thomas and Connelley were required to follow. Id. ¶ 9. The
May 11, 2009 Bulletin Order that they received contained a notation that a particular

3

As explained below, Thomas was reinstated as an engineer following an arbitration
hearing, and eventually returned to work at Norfolk. DSOF ¶¶ 36, 43.
4

A more detailed analysis of the particular evidence the parties offer with respect to
these complaints is detailed below in Part III.C.

2

area of track was under “work project protection.” Id. ¶ 18. This notation meant that
workers might be on or near the track. Id. ¶ 19. Before Thomas and Connelley went
into such an area, the Bulletin Order required them to contact the employee in charge
of the work site. Id. ¶ 18. Thomas made notes on his copy of the Bulletin Order,
including a note that read “LOOK” on the section in question. Id. ¶ 20.
While on this assignment, Norfolk alleges that Thomas and Connelley took their
train onto the area under “work project protection” without contacting the employee
in charge of the site. Id. ¶ 21. Thomas admits that he occupied the track without first
contacting a Canadian National employee at the work site, but disputes that the
section of the Bulletin Order relied on by Norfolk applied to his train. R. 28, Pl.’s Resp.
Def.’s Stat. of Facts (PSOF) ¶ 21. After the incident, Thomas and Connelley were both
removed from service pending the outcome of an investigation. DSOF ¶ 22. Thomas
appeared at an investigatory hearing on May 19, 2009, pursuant to his collective
bargaining agreement. Id. ¶¶ 23-24. Following the hearing, Norfolk fired Thomas and
revoked his locomotive engineer certificate for 30 days, based on a finding that Thomas
had occupied a main track without authority. Id. ¶ 25. Connelley was also fired
because of the incident. Id. ¶ 27.
Before 2006, occupying a main track without authority was typically punishable
by a 30-day suspension. Id. ¶ 15. Starting in 2006, because of what Norfolk perceived
as an excess of these violations, Norfolk reclassified the violation as a “major” offense
and began punishing an offending employee with termination of employment. Id.

3

Thomas was notified of this policy change. Id. ¶ 13. On September 26, 2006, Thomas
was reminded that occupying a main track without authority was a major offense. Id.
The parties argue over whether certain other Norfolk employees are or are not
relevant to proving discrimination. The pertinent information concerning those
employees are as follows5:
!

Connelley, who was partnered with Thomas on May 11, 2009, was also
fired as a result of the incident. Id. ¶ 27. Connelley is Caucasian and was
46 years old at the time of his firing. Id. ¶¶ 27, 28.

!

Kevin Davis was a former Norfolk engineer, is Caucasian, and was born
in 1957. Id. ¶ 48. In March 2009, Davis was fired by Norfolk for the same
violation–occupying a main track without authority. Id. ¶ 49. He was 52
years old when he was fired. Id. ¶ 50. Davis also received a 30-day
suspension for occupying a track without authority in 2005. Id. ¶ 51.

!

Robert Cowgill is a conductor for Norfolk, and is Caucasian. Id. ¶¶ 52, 53.
Cowgill received a 30-day suspension for occupying a main track without
authority in 2005. Id. ¶ 52. He was 22 years old at the time. Id. ¶ 53.

!

Chuck Taylor, who is Caucasian and was born in 1945, received a 30-day
suspension for a similar offense (proceeding by a red signal without
permission) in 2004. Id. ¶ 59.

!

Johnnie Golston, who is African-American and was born in 1949, received
a 30-day suspension for a similar offense (proceeding by a red signal
without permission) in 2004. Id. ¶ 60.

!

Otty (Butch) Barringer, who is Caucasian, received a 30-day suspension
for a similar offense (proceeding into a limited area without permission)
in 1999. Id. ¶¶ 61, 63.

5

It appears that the basis for this information was Thomas’s answers to interrogatories
propounded by Norfolk and his deposition testimony. See, e.g., DSOF ¶ 58. The Court notes
that Thomas did not object to any of Norfolk’s factual contentions about the comparators, nor
did he provide information about any additional comparators in his Local Rule 56.1(b)
statement.

4

!

Steve Young, who is Caucasian, received a 15-day suspension for a
similar offense (proceeding into a limited area without permission) in
1999. Id. ¶¶ 62, 63.

Thomas admits that he has no first-hand, personal knowledge of the information
regarding Davis, Cowgill, Taylor, Golston, Barringer, and Young. Id. ¶ 58.
After Thomas was fired, he and his union appealed the decision under the
collective bargaining agreement. Id. ¶ 29. Following an arbitration hearing in July
2010, Thomas was reinstated and returned to work on April 19, 2011. Id. ¶¶ 35-36, 43.6
In the meantime, in November 2009, Thomas filed a charge of discrimination based on
race and age, retaliation, and hostile work environment with the Equal Employment
Opportunity Commission, through the Illinois Department of Human Rights. R. 1-1,
Compl. Exh. A. In August 2011, the EEOC issued a right-to-sue letter, and this action
followed. R. 1-2, Compl. Exh. B.
II.
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Rule 56 “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s
case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All facts, and any inferences

6

Norfolk explains in detail that it offered to reinstate Thomas in September of 2009 on
a leniency basis, but Thomas refused the offer. DSOF ¶ 29-31. Because the Court grants
Norfolk’s motion for summary judgment, it is unnecessary to decide whether Thomas properly
mitigated his damages, and a detailed discussion of those facts is therefore omitted.

5

to be drawn from them, must be viewed in the light most favorable to the non-moving
party. Wis. Cent. Ltd., 539 F.3d at 756. The Court will not grant summary judgment
if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III.
Thomas alleges that Norfolk: (1) discriminated against him because of his age;
(2) discriminated against him because of his race; and (3) retaliated against him for his
earlier complaints about race discrimination. R. 1, Compl.7 The Court will address each
claim in turn.
A.
The Age Discrimination in Employment Act (ADEA) prohibits employers from
discriminating against workers who are 40 or older on the basis of their age. 29 U.S.C.
§ 621 et seq. To survive a motion for summary judgment on his age discrimination
claim, Thomas must produce evidence that would allow a reasonable jury to find that
but for his age, Norfolk would not have subjected him to an adverse employment
action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009); Fleishman v.
Continental Cas. Co., 698 F.3d 598, 603 (7th Cir. 2012). An employee suing under the
ADEA may show discrimination directly or indirectly. Van Antwerp v. City of Peoria,
627 F.3d 295, 297 (7th Cir. 2010). Thomas effectively admits that he has no direct
evidence of age discrimination, R. 29, Pl.’s Resp. Br. at 12, so he must prove age
7

Thomas also did try to allege a hostile work environment claim, but it was tucked into
the part of the complaint dealing with retaliation. In any event, for reasons discussed in Part
IV of this opinion, the Court considers this claim waived.

6

discrimination by the indirect method using the McDonnell Douglas burden-shifting
framework. McDonnell Douglas Corp. v. Green. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973).
Under the indirect method of proof, Thomas must first establish a prima facie
case of age discrimination by demonstrating that: (1) he is a member of a protected
class; (2) his job performance met with Norfolk’s legitimate job expectations; (3) he
suffered an adverse employment action; and (4) similarly situated others not in his
protected class received more favorable treatment. Everroad v. Scott Truck Sys., 604
F.3d 471, 477 (7th Cir. 2010) (citing McDonnell Douglas, 411 U.S. at 802). Norfolk
argues that Thomas fails to satisfy the second element because Thomas failed to show
that his job performance met with Norfolk’s legitimate job expectations, and the fourth
element because Thomas failed to show that others outside the protected class received
more favorable treatment.
The Court agrees. First, Norfolk argues that Thomas’s job performance leading
up to his termination did not meet with Norfolk’s legitimate expectations because
Thomas violated Norfolk’s safety and operating rules by occupying a main track
without authority. R. 25, Def.’s Br. at 3. Thomas does not dispute that (1) he was
required to comply with the Tabular General Bulletin Orders of other railroads when
traveling over foreign tracks; (2) he received a copy of Canadian National’s Bulletin
Order for his job on May 11, 2009; and (3) the Bulletin Order stated that he must
contact a Canadian National employee before entering a certain protected area of the
track. PSOF ¶¶ 9, 17, 18. Nor has Thomas reasonably put in dispute that he violated
7

the Bulletin Order by taking his train onto the protected track without seeking
permission from a Canadian National employee. See PSOF ¶ 21 (claiming that
Norfolk’s allegation that Thomas violated the Bulletin Order is “misleading”). Thomas
asserts that the Bulletin Order “[did] not pertain to the track that [he] was on.” Id.
¶ 21. He proffers two pieces of evidence in support of this assertion (some lines from
his deposition testimony and a handwritten letter authored by him), but neither one
actually explains what about the Bulletin Order led him to believe that he was in the
clear. Id.; R. 30-2, Exh. 1 to Thomas Dep.(handwritten letter); see also R. 30, Pl.’s Stat.
Add’l Facts (PSOAF) ¶¶ 10, 11. In his response brief, Thomas makes other vague and
conclusory allegations that any “issues of discipline” in his employment file were
fabricated, but again he fails to support these allegations with any admissible evidence.
R. 29, Pl.’s Resp. Br. at 8. It is perfectly acceptable to offer evidence based on Thomas’s
own personal knowledge, but what he offers must be admissible evidence rather than
general conclusions. He has failed to do that.
Even if Thomas had enough evidence to persuade a reasonable jury that he was
meeting Norfolk’s legitimate expectations, he cannot show that Norfolk’s proffered
justification for his dismissal—that Norfolk8 believed Thomas committed a violation
subject to termination—was pretextual. See Def.’s Br. at 6. Norfolk investigated the
events of May 11, 2009, and made the decision to terminate Thomas because it

8

When the Opinion refers to Norfolk as making the decision to fire Thomas, the Court
is referring to Brad A. Nixon, the decision maker identified by Norfolk. See DSOF ¶ 25. Thomas
does not dispute that Nixon made the decision to fire Thomas. See PSOF ¶ 25.

8

determined that Thomas occupied a main track without authority. DSOF ¶ 25.9
Thomas presents no evidence from which the Court could infer that Norfolk’s decision
to fire Thomas was pretextual; instead, Thomas relies on generic statements of law
ungrounded in any facts specific to this case. See Pl.’s Resp. Br. at 10. If “substantial,
undisputed information in the record” supports an employer’s contention that the
employee was violating company policy, that is enough to support a finding that the
discriminatory reason was not the but-for cause of the termination. Lindsey v.
Walgreen Co., 615 F.3d 873, 876 (7th Cir. 2010). It would be one thing if it were clear
that Thomas did not violate the Bulletin Order; the dubiousness of the proffered reason
for the firing might itself be enough to cast doubt on whether Norfolk genuinely
believed that the Bulletin Order barred what Thomas did. But, as discussed above,
Thomas does not explain how an engineer could interpret the Bulletin Order to exclude
what Thomas did, which was to travel onto the track in a work project protection area.
Moving on, Thomas also failed to establish the fourth element—that other
similarly situated employees not in Thomas’s protected class (younger Norfolk
employees) were treated differently under similar circumstances. In his response,
Thomas fails to set out any relevant comparators to support his ADEA claim, stating
9

In a later arbitration, the Special Board of Adjustment found the violation of the
Bulletin Order to be supported by “substantial evidence.” Id. ¶¶ 35-36. Norfolk argues that
Thomas is estopped from challenging the Board’s finding. Def.’s Br. at 6 (citing Oden v. Norfolk
S. Ry. Co., 1997 WL 842407, at *4 n.3 (N.D. Ala. Nov. 25, 1997)). The Court is skeptical of
Norfolk’s estoppel argument, but Thomas failed to rebut the argument in his response and he
has therefore waived the right to challenge it. See Wojtas v. Capital Guardian Trust Co., 477
F.3d 924, 926 (7th Cir. 2007) (holding that plaintiffs waived the right to challenge defendant’s
assertion of statute of limitations defense by failing to oppose the argument in their response
brief).

9

only: “[P]laintiff can present evidence that there is something ‘fishy’ about the facts at
hand. A reading of the statement of facts leads one to question all the attention that
Plaintiff was receiving.” Resp. Br. at 13 (citation omitted). “Fishiness,” without facts,
or without an explanation as to why Thomas thinks the facts are fishy, falls short of
presenting a prima facie case under the fourth prong. The best that Thomas does is in
the race-discrimination section of his brief, where he identifies one Norfolk employee,
Robert Cowgill, “who was under 40 who was treated better in discipline for a similar
offense.” Id. at 9. But as Norfolk proved, and Thomas does not deny, the “similar
offense” for which Cowgill received a 30-day suspension occurred in 2005, before
Norfolk changed its policy on how to punish occupying a main track without authority.
DSOF ¶¶ 15, 52. In order to rely on an individual as a comparator in an employment
discrimination action, that individual must be similarly situated to the plaintiff; not
exactly situated, but similar. “In determining whether two employees are similarly
situated a court must look at all relevant factors, the number of which depends on the
context of the case . . . This normally entails a showing that the two employees dealt
with the same supervisor, were subject to the same standards, and had engaged in
similar conduct without such differentiating or mitigating circumstances as would
distinguish their conduct or the employer’s treatment of them.” Radue v. KimberlyClark Corp., 219 F.3d 612, 617-8 (7th Cir. 2000) (emphasis added); see also Lim v.
Trustees of Indiana Univ., 297 F.3d 575, 581 (7th Cir. 2002). Cowgill is not a relevant
comparator for Thomas’s ADEA claim because Cowgill was not subject to the same

10

policy as Thomas.10 Thomas fails to address the impact of the policy change in his
brief, or explain why, despite the change, Cowgill is still somehow a relevant
comparator.
Not only did Thomas fail to present a relevant comparator, he failed to defend
against relevant comparators offered by Norfolk to rebut an inference of age
discrimination. For example, Norfolk pointed out that Ricky Connelley, who was nine
years younger than Thomas, was also fired based on the same incident. Def.’s Br. at
4. Thomas failed entirely to address Connelley as a comparator in his response brief.
Norfolk also proved that Kevin Davis, an engineer three years younger than Thomas,
was fired for the same violation three months before Thomas. Id. at 5.11 Again, Thomas
failed to address Davis as a comparator. Because Thomas failed to address any of
Norfolk’s additional comparators, the Court considers any arguments as to their noncomparability to be waived.
Perhaps recognizing that he has no relevant-comparator evidence, Thomas
argues that comparator evidence is not necessary, and instead, all that is necessary is
a “logical connection” between the firing and the discriminatory motive. Pl.’s Resp. Br.
at 9 (citing Leffel v. Valley Fin. Services, 113 F.3d 787 (7th Cir. 1997)). Even were the
standard from Leffel controlling, Thomas has not met that standard. Leffel held that
10

Thomas also admits that Cowgill was not supervised by, or fired by, the same Norfolk
employees as Thomas—Jason Charbonneau and Brad A. Nixon. See DSOF ¶ 65; PSOF ¶ 65.
This further distinguishes Cowgill as a relevant comparator.
11

Norfolk also identifies Charles Taylor and Johnnie Golston, two individuals who
received similar 30-day suspensions prior to the policy change. Both individuals were older
than Thomas when they were disciplined. Def.’s Br. at 5, n.2.

11

a plaintiff “is not required to make out a prima facie case, so long as there is some
evidence from which one can infer that the employer took adverse action against the
plaintiff on the basis of a statutorily proscribed criterion.” Id. at 793 (citations omitted)
(emphasis added). But there is no admissible evidence of a connection between
Thomas’s firing and his age (or, as discussed below, race). What’s more, the Seventh
Circuit has moved away from Leffel and “returned to applying the unadulterated
version of the fourth prong, which requires the court to reject a discrimination claim
where a plaintiff cannot show that her employer treated similarly situated employees
outside of her protected class more favorably.” Jackson v. J.P. Morgan Chase Nat’l
Corp. Servs., Inc., 2010 WL 2574217, at *9 (N.D. Ill. June 22, 2010) (citing Egonmwan
v. Cook County Sheriff's Dept., 602 F.3d 845, 849 (7th Cir. 2010), and Antonetti v.
Abbott Laboratories, 563 F.3d 587, 592 (7th Cir. 2009)). Proper comparator evidence
is still required for a plaintiff to make out a prima facie case for discrimination, and
Thomas has failed to provide it. Because he is unable to make a prima facie case for
age discrimination, and does not take any other approach to raise an inference of
discrimination,12 Norfolk’s motion for summary judgment on Thomas’s ADEA claim is
granted.
B.
As with Thomas’s ADEA claim, to avoid summary judgment on his Title VII race
discrimination claim, Thomas may use either the direct method or indirect method of
12

There is all sorts of circumstantial evidence that can be sufficient to raise an inference
of discrimination, Coleman v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012), but Thomas does not
argue that he is taking any of those approaches here.

12

proof under the McDonnell Douglas framework. See Naik v. Boehringer Ingelahim
Pharm., 627 F.3d 596, 599 (7th Cir. 2010); Egonmwan, 602 F.3d at 849-50. To succeed
under the direct method, Thomas “must offer either direct evidence that would prove
the fact in question—the discriminatory intent—without reliance on inference or
presumption, or a ‘convincing mosaic’ of circumstantial evidence that would allow a
jury to infer intentional discrimination by the decisionmaker.” Silverman v. Board of
Educ. of City of Chicago, 637 F.3d 729, 733-34 (7th Cir. 2011) (internal citations
omitted).
Thomas makes a half-hearted attempt in his brief to establish racial
discrimination under the direct method, in what appears to be a boilerplate response
to summary judgment motions, stating “Plaintiff asserts that she [sic] can present
direct evidence in the form of testimony set [sic] in her [sic] statement of additional
facts.” Pl.’s Resp. Br. at 6. But the only “evidence” that Thomas presents to support
a case based on direct evidence is that Thomas
believed that he was being racially discriminated against by Defendant when
Plaintiff was the only employee that wasn’t able to be placed on the ‘extra board’
after being pumped off of a job because of seniority which Plaintiff believed,
based upon experience at [Norfolk], never happened to non-black employees.
Id. (emphases added). Thomas argues that “[t]he order and temporal proximity of this
sequence of events provides a ‘convincing mosaic’” to defeat summary judgment on his
Title VII discrimination claims. Id. But where are the specific facts that support
Plaintiff’s beliefs? Thomas does not actually cite to them. Although Thomas fails to
supply specific details on the “extra board” contention, the Court’s own examination
13

of Thomas’s deposition and the associated exhibits reveals that Thomas complained
about the issues in a letter in 2004. See R. 26-2, Thomas Dep. at 193-96; R. 26-3, Exh.
41 to Thomas Dep. In the 2004 letter, Thomas refers to his “attitude” as a possible
reason “for what’s happening to [him],” and then he “apologize[s] to anyone in the office
who feels this way because we all have bad days.”Exh. 41 to Thomas Dep. There is no
mention of race discrimination, nor does the letter describe facts or admissible evidence
from which to infer race discrimination. So the letter and Thomas’s belief, not
grounded in facts of which he has proof or personal knowledge, that the “extra board”
issues were a result of a racially-discriminatory policy adopted by Norfolk are
insufficient to establish a “convincing mosaic” from which a reasonable jury could infer
intentional discrimination by Norfolk. Silverman, 637 F.3d at 734; see also Nagle v.
Vill. of Calumet Park, 554 F.3d 1106, 1118 (7th Cir. 2009) (“Under the direct method,
the inference that the employer acted based on the prohibited animus has to be
substantially strong.”).13
Thomas also attempts to defeat summary judgment on his Title VII claim under
the indirect method of proof. To do so, Thomas must establish the same four elements
(but with race as the protected class) of the McDonnell Douglas framework that he
failed to establish for his ADEA claim. Naik, 627 F.3d at 599-600 (applying the
13

Thomas also wrote a letter to Norfolk’s superintendent in 2002, alleging racial
discrimination. See R. 26-3, Exh. 35 to Thomas Dep. But Thomas never referenced this letter
in his response brief or his statement of additional facts, and fails to explain the details
regarding this allegation of discrimination. In addition, Norfolk argues that Thomas’s claims
for conduct that occurred in 2002 are so temporally attenuated from his current claim that they
are barred as untimely. See Def.’s Br. at 12 (citing Lucas v. Chicago Transit Auth., 367 F.3d
714, 727 (7th Cir. 2004)). Thomas failed to rebut Norfolk’s argument in his response and he has
therefore waived the right to challenge it. See Wojtas, 477 F.3d at 926.

14

McDonnell Douglas framework to both ADEA and Title VII claims). Just like with
Thomas’s ADEA claim, the only dispute between the parties is whether Thomas can
satisfy the second element (whether Thomas was meeting Norfolk’s legitimate
expectations) and the fourth element (whether similarly situated non-African
American employees were treated more favorably).
On the legitimate expectations element, the analysis on the ADEA claim for this
element applies with equal force to Thomas’s Title VII claim. The same facts show that
Thomas failed to meet Norfolk’s job-related expectations on May 11, 2009, when he
violated the Bulletin Order.
Turning to the fourth element of the McDonnell Douglas test, Thomas identifies
five Caucasian employees in his brief who he argues were treated more favorably than
him. Pl.’s Resp. Br. at 9. First up is Robert Cowgill. But, as explained when discussing
the age claim, Cowgill was more leniently punished for a similar offense in 2005
because that was before Norfolk modified the disciplinary policy for occupying a main
track without authority.14 Thomas fails to explain why, given this important difference,
Cowgill is still a relevant comparator. Thomas next offers four others: Kevin Davis,
Charles Taylor, Otty Barringer, and Steve Young. But as Norfolk proves, and Thomas
fails to refute, these individuals do not demonstrate that other Caucasian employees
were treated more favorably: Davis was also fired for a similar offense just three
months before Thomas; Taylor was suspended in 2004 for a similar offense, but that
14

As explained above in note 9, Cowgill is further distinguished as a relevant
comparator because he was not supervised by, or fired by, the same Norfolk employees as
Thomas.

15

was before the policy change; and Barringer and Young received 30-day and 15-day
suspensions, respectively, back in 1999, again well before the policy change.15 See R.
31, Def.’s Reply Br. at 7-8; DSOF ¶¶ 61-63. So Thomas has failed to identify any
relevant comparators to establish the fourth element of the McDonnell Douglas
analysis for his Title VII race discrimination claim. See Radue, 219 F.3d at 617-18;
Lim, 297 F.3d at 581.
Given Thomas’s failure to put forth any relevant evidence that Caucasian
employees received more favorable treatment, Norfolk need not have introduced
contrary evidence. But Norfolk did, and Thomas failed to refute it, making summary
judgment all the more warranted. Ricky Connelley, the engineer fired at the same time
as Thomas for the same offense because they were working on the same train, is a
Caucasian male. Def.’s Reply Br. at 6, n.4; DSOF ¶ 17. This by itself casts significant
doubt on Thomas’s ability to establish a prima facie case of race discrimination based
on his termination. It is telling that Thomas’s response brief does not address, at all,
the impact of Connelley’s simultaneous firing. Norfolk also points out that Johnnie
Golston,

an

African-American

employee,

was

suspended

for

30

days

(a

lesser punishment than Thomas received) following a similar incident in 2004. Def.’s
Br. at 8; DSOF ¶ 60. Again, Thomas failed to address Golston in his response brief.
And for the reasons explained above, Thomas’s argument, citing Leffel, that
comparator evidence is not required is rejected. Even if his argument that Leffel

15

Three of these four individuals (Taylor, Barringer, and Young) were also supervised
by, and fired by, different Norfolk employees. See DSOF ¶ 65; PSOF ¶ 65.

16

articulates a lesser burden were accepted, the only other evidence of race
discrimination Thomas supplies is his claim that he was subjected to an “excessive
work load requirement” and a “racial and hostile work environment” because of his
race. Pl.’s Resp. Br. at 9. But Thomas presents no specific facts to support either of
these contentions or to relate them to his termination. It bears repeating that, of
course, Thomas could conceivably resist summary judgment with evidence based on his
own personal knowledge, but specifics are needed. To understand this point, consider
whether Thomas could simply testify at trial that he had an “excessive work load
requirement” and was subjected to a “racial and hostile work environment”—and that
is all, no actual specifics. Those are conclusions without facts, and would not be
admissible on their own to prove discrimination. Thomas fails to satisfy the fourth
element of the McDonnell Douglas framework. See Keller v. Indiana Family & Social
Servs. Admin., 388 Fed. Appx. 551, 553 (7th Cir. 2010) (affirming dismissal of
Plaintiffs’ Title VII claim where their “conclusory statements” were not backed by any
evidence).
Because Thomas has not shown a prima facie case for race discrimination,
Norfolk’s motion for summary judgment on Thomas’s Title VII race discrimination
claim is granted.
C.
Thomas also alleges that Norfolk intentionally retaliated against him based on
his filing of prior complaints of race discrimination. Compl. at 4-5. Title VII forbids an
employer from retaliating against an employee who “opposed any practice” prohibited
17

by Title VII or who “made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e–3(a).
“The antiretaliation provision seeks to prevent employer interference with ‘unfettered
access’ to Title VII’s remedial mechanisms . . . by prohibiting employer actions that are
likely ‘to deter victims of discrimination from complaining to the EEOC,’ the courts,
and their employers.” Burlington N. & Santa Fe Ry Co. v. White, 548 U.S. 53, 68 (2006)
(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). To establish a prima facie
claim of retaliation, “the plaintiff must demonstrate that, but for his protected speech,
the employer would not have taken the adverse action.” Kidwell v. Eisenhauer, 679
F.3d 957, 965 (7th Cir. 2012). “Like discrimination, retaliation may be established by
either the direct or indirect methods of proof.” Coleman v. Donahoe, 667 F.3d 835, 859
(7th Cir. 2012) (citations omitted).
Under the direct method of proof, Thomas must show: (1) that he engaged in a
statutorily protected activity; (2) that he suffered a materially adverse action by his
employer; and (3) there was a causal link between the two. Silverman, 637 F.3d at 740
(7th Cir. 2011); see also Leitgen v. Fransciscan Skemp Healthcare, Inc., 630 F.3d 668,
673 (7th Cir. 2011). Regarding the first prong, it is undisputed that Thomas made a
number of complaints to his supervisors between 1999 and 2008 about what he
considered to be unfair treatment. DSOF ¶¶ 66-79. However, the issue is whether
Thomas engaged in protected activity, that is, whether he complained about racial
discrimination. Citing his deposition transcript, Thomas states that he complained on
“many occasions” to his Norfolk supervisorsPSOAF ¶ 20. In his deposition, Thomas
18

stated that he “typed a letter to [Norfolk’s] Superintendent [about racial
discrimination]” and that he “probably sent a letter to [his] Road Foreman,” but that
he does not recall complaining to any other Norfolk employee. Thomas Dep. at 171:19172:3. But Thomas does not specify the year these letters were sent, and does not
identify any exhibits to support his claim. See id. at 171-173. According to Norfolk,
Thomas provided evidence of only three letters to the Superintendent and/or Road
Foreman, dated 2001, 2002 and 2004. R. 32, Def.’s Resp. to Pl.’s Stat. Add’l Facts
(DSOAF) ¶ 20. The letters that Norfolk identifies did not allege racial discrimination.
See id. ¶ 20; R. 26-3, Exhs. 36, 37 and 41 to Thomas Dep. In fact, there is a letter in the
record (though Thomas did not specifically point to it in his filings) that shows Thomas
complained of racial discrimination. Thomas sent one letter to the Norfolk
Superintendent in 2002 that alleged that he was receiving assignments with “extra
board” (meaning, extra work) because of his race. R. 26-3, Exh. 35 to Thomas Dep.
Thomas also submitted a letter in support of a lawsuit (so this was not a letter to a
supervisor) against Norfolk in 2001 in which he alleged race discrimination. DSOF ¶
67; PSOAF ¶ 21. But, as explained below, the length of time between these letters and
Thomas being fired (about seven years) was far too great to support an inference of
retaliation by Norfolk based on Thomas’s protected activity.
Even assuming that Thomas can show that he engaged in a statutorily protected
activity, Thomas has not shown that a jury could reasonably find a causal connection
between that activity and his firing in May of 2009. First, Thomas has presented no
evidence that the individuals making the employment decision had any knowledge of
19

Thomas’s earlier complaints. “The key inquiry in determining whether there is a causal
connection under the direct method is whether [the employer] was aware of the
allegations of discrimination at the time of [its] decision to . . . terminate [the
employee’s] employment; absent such knowledge, there can be no causal link between
the two.” Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 2004) (citations
omitted). Thomas neither alleges nor supports with admissible evidence that the
Norfolk employee responsible for the termination was aware of Thomas’s prior
complaints. In addition, Thomas’s earlier complaints and the adverse employment
action were temporally attenuated. Thomas’s most recent complaint to Norfolk was in
April 2008, but there is no evidence that complaint involved allegations of racial
discrimination. See DSOF ¶ 75; R. 26-3, Exh. 43 to Thomas Dep. As discussed, the most
recent complaint by Thomas of racial discrimination was in 2002. Even when the
evidence is viewed in his favor, Thomas has not shown a causal connection between his
complaint in 2002 and his firing in 2009. See Oest v. Illinois Dep’t of Corrections, 240
F.3d 605, 616 (7th Cir. 2001) (“[W]e have relied heavily on temporal proximity when
analyzing retaliation claims [under the direct method of proof]; specifically, a
‘substantial time lapse . . . is counter-evidence of any causal connection.’” (citations
omitted) (ellipses in original)); Lalvani v. Cook County, Illinois, 269 F.3d 785, 790 (7th
Cir. 2001) (“As the time separating the protected conduct and the adverse employment
action grows, the causal inference weakens and eventually time becomes the plaintiff’s
enemy.”)

20

Moreover, the same reasons that Thomas’s discrimination claims failed under
the indirect method apply to defeat his retaliation claim. Like with his discrimination
claims, to survive summary judgment on the retaliation claim, Thomas must show that
he met Norfolk’s legitimate job expectations and that Norfolk treated him less
favorably than similarly situated employees who did not engage in statutorily
protected activities. Silverman, 637 F.3d at 742. For the reasons explained earlier,
Thomas has not shown that he performed his job according to Norfolk’s legitimate
expectations. Furthermore, the record is entirely devoid of any evidence that there
were similarly situated employees who did not complain about racial discrimination
that were treated more favorably than Thomas. Therefore, Thomas also fails to prove
his retaliation claim under the indirect method of proof.

Accordingly, the Court

grants Norfolk’s motion for summary judgment on Thomas’s retaliation claim.
IV.
In his complaint, Thomas alleged that Norfolk created a hostile work
environment, but failed to plead it as a separate claim independent of his retaliation
claim, even though the claims are subject to different legal standards. Compl. at ¶¶ 24275. In any event, even if a hostile work environment claim is in the case, summary
judgment on it is required. To prevail on a hostile work environment claim, Thomas
must establish that his work environment “was both objectively and subjectively
offensive—that is, ‘one that a reasonable person would find hostile or abusive, and one
that [Thomas] in fact did perceive to be so.’” Ellise v. CCA of Tennessee LLC, 650 F.3d
640, 647 (7th Cir. 2011) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787
21

(1998)). In its opening motion, Norfolk addressed this standard and the hostile work
environment claim extensively. See Def.’s Br. at 12-14. But Thomas does not discuss
the hostile work environment claim in his response brief. Not at all. Therefore,
Thomas’s hostile work environment claim is deemed waived.16
V.
Because the Court grants Norfolk’s motion for summary judgment, there is no
need to address Norfolk’s claim that Thomas failed to mitigate his damages by not
attempting to find comparable employment. Def.’s Br. at 14-15. For the reasons stated
above, Norfolk’s motion for summary judgment [R. 24] is granted.

ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: March 4, 2013

16

Because Thomas failed to address the hostile work environment claim in his
brief, the Court does not address the question of whether or not the supposed hostile
work environment was sufficiently severe and pervasive. “Conduct that is not severe
or pervasive enough to create an objectively hostile or abusive work environment–an
environment that a reasonable person would find hostile or abusive–is beyond Title
VII's purview.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
22