Bell v. Greyhound Lines Inc. et al
Filing
123
MEMORANDUM Opinion and Order signed by the Honorable Ronald A. Guzman on 9/13/2013: For the reasons stated herein, the defendants' motions for summary judgment [105, 109] are granted. Civil case terminated. Mailed notice (cjg, )
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
IRVING BELL,
Plaintiff,
v.
GREYHOUND LINES INC. and
AMALGAMATED TRANSIT UNION,
LOCAL 1700,
Defendants.
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Case No: 12 C 449
Judge Ronald A. Guzmán
MEMORANDUM OPINION AND ORDER
Irving Bell, a former bus driver with Greyhound Lines, Inc. (“Greyhound”), brought suit
against Greyhound and Amalgamated Transit Union, Local 1700 (“the Union”). As to
Greyhound, Bell alleged race discrimination, retaliation, intentional infliction of emotional
distress, defamation, and a hybrid claim under § 301 of the Labor Relations Management Act
(“LMRA”) As to the Union, Bell alleged the hybrid claim under the LMRA and intentional
infliction of emotional distress. Both Greyhound and the Union move for summary judgment as
to all claims against them. For the reasons stated herein, the motions are granted.
I.
Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining whether
factual issues exist, the Court must view all the evidence and draw all reasonable inferences in
the light most favorable to the non-moving party. Weber v. Univ. Research Assoc., Inc., 621
F.3d 589, 592 (7th Cir. 2010). The Court does not “judge the credibility of the witnesses,
evaluate the weight of the evidence, or determine the truth of the matter. The only question is
whether there is a genuine issue of fact.” Gonzalez v. City of Elgin, 578 F.3d 526, 529 (7th Cir.
2009). “Where the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.” Sarver v. Experian Info. Solutions, 390
F.3d 969, 970 (7th Cir. 2004) (citations omitted).
II.
Local Rule 56.1
Greyhound and the Union served on Bell a “Notice to Pro Se Litigant Opposing Motion
for Summary Judgment” as required by Local Rule 56.2. (Dkt. ## 108, 113.) The notice
explained in detail the requirements of the Local Rules governing summary judgment.
Local Rule 56.1(b) requires a party opposing a motion for summary judgment to file:
(3) a concise response to the movant's statement that shall contain:
(A) numbered paragraphs, each corresponding to and stating a concise
summary of the paragraph to which it is directed, and
(B) 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, and
(C) a statement, consisting of short numbered paragraphs, of any
additional facts that require the denial of summary judgment, including
references to the affidavits, parts of the record, and other supporting
materials relied upon. . . .
Local Rule 56.1(b)(3) (N.D. Ill.)
Despite being given a 30-day extension on the initial briefing schedule set by the Court,
Bell failed to file a response to either Greyhound’s or the Union’s motions for summary
judgment or their statements of fact. The Court may rigorously enforce compliance with Local
Rule 56.1. Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011) (“Because of the high volume
of summary judgment motions and the benefits of clear presentation of relevant evidence and
law, we have repeatedly held that district judges are entitled to insist on strict compliance with
local rules designed to promote the clarity of summary judgment filings.”). Although pro se
plaintiffs are granted some leniency in how their filings are construed, compliance with
procedural rules is required. Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006). “[A]
district court is entitled to decide the motion based on the factual record outlined in the Local
Rule 56.1 statements.” Koszola v. Bd. of Educ. of City of Chi., 385 F.3d 1104, 1109 (7th Cir.
2004) (citations and internal quotation marks omitted).
Bell’s failure to respond to the defendants’ statements of facts means that those facts are
deemed admitted provided they are supported by the record. See Local Rule 56.1(b)(3)(C) (N.D.
Ill.) (“All material facts set forth in the statement required of the moving party will be deemed to
be admitted unless controverted by the statement of the opposing party.”)
III.
Facts
Greyhound Rules and Forms
Greyhound maintains a document entitled the Driver’s Rule Book. (Greyhound Stmt.
Facts, Dkt. # 111, ¶ 2.) Greyhound Rule S-1-6 requires bus drivers to have an adequate supply
of C-4s (witness statement report forms) and these C-4s must be filled out by each passenger on
the bus in case of an accident. (Id.) Greyhound Rule S-1-8 requires bus drivers to complete and
submit a C-2 (accident report form) to the company supervisor within 24 hours after an accident.
(Id.) Greyhound Rule S-2 states “[i]t is the responsibility of the professional Greyhound driver
to drive in such a manner as to identify accident-producing situations soon enough to take
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reasonable and prudent action to avoid an accident.” (Id. ¶ 3.) Greyhound Rule S-21 states that
“[d]rivers have full responsibility to avoid contact with a fixed object.” (Id.)
Greyhound has a written policy that defines a “preventable accident” as “[a]n accident
where the driver could have but failed to properly identify an accident-producing situation soon
enough to take reasonable and prudent action to avoid a collision.” (Id. ¶ 4.) Greyhound also
has a written policy that states: “The key factor in determining whether an accident is
preventable hinges solely on whether or not the accident could have been prevented or avoided
by our driver, not who was primarily responsible or at fault.” (Id.)
A Greyhound Form 6 is a disciplinary document that can double as a termination letter.
(Id. ¶ 6.)
Collective Bargaining Agreement
A collective bargaining agreement (“CBA”) was in effect between Greyhound and the
Union from April 1, 2010 through March 31, 2013. (Id. ¶ 7.) The CBA provides that discharge
grievances must be initially filed at Step 2 and that Greyhound must respond to the grievance
within 15 days of receipt of the grievance. (Id ¶ 8.) The CBA provides that if the grievance is
not resolved at Step 2, the Union may appeal the decision to Step 3 within 15 days of receipt of
Greyhound’s Step 2 response. (Id.) The CBA provides that a Step 3 conference is to be held
within 15 days after receipt of the Union’s appeal to Step 3, unless otherwise agreed to by the
Union and Greyhound. (Id.) The CBA further provides that, within 15 days of the Step 3
conference, Greyhound must respond with a written decision to the appropriate Union vicepresident/assistant business agent. (Id.) Greyhound must also forward a copy of its written
decision to the grievant and the appropriate Union steward. (Id. ¶ 9.) There is no time frame for
Greyhound to forward a copy of its written decision to the grievant and the appropriate Union
steward. (Id.)
Bell’s duties included conducting a pre-trip bus safety inspection “to make sure the bus
was safe before using it,” driving the bus and thereby “transporting passengers” and operating
the bus safely. (Id. ¶ 10.) Bell worked as a bus driver throughout his entire employment with
Greyhound. (Id.) Bell completed six weeks of training to learn to drive a bus before he began
working as a Greyhound bus driver. (Id. ¶ 11.)
Bell received and reviewed Greyhound’s Driver Rule Book on May 6, 2008, which was
during his initial training. (Id. ¶ 12.) Bell received documents containing Greyhound policies
each day he was present at the six-week training; however, Bell admitted that he often “[didn’t]
really read them,” was “too tired to be reading all of this stuff” and many of these documents
“wouldn’t have been important to me because I never would have expected to get into any kind
of accident in a bus.” (Id.).
Bell’s Performance
3
Greyhound hired Bell, an African-American male, as a bus driver in or around May 2008.
(Id. ¶ 10.) An August 2, 2008 Form 6 regarding Bell indicates that on July 2, 2008 Bell violated
the federal 10-hour limitation of on-duty performance. (Id. ¶ 15.) An August 27, 2008 Form 6
regarding Bell indicates that on August 20, 2008, Bell was “cited for driving 87 mph in a posted
65 mph zone.” (Id.) Bell testified that he was cited for speeding on August 20, 2008 and was
subsequently suspended by Greyhound for that infraction. (Id.) On January 15, 2009, Bell was
operating a Greyhound bus and had an accident where he struck a car. (Id. ¶ 16.) The car was
stationary at the moment Bell’s Greyhound bus struck it, and Bell determined at the time of the
accident that it could have been avoided. (Id.) This accident caused damage to the car and to the
Greyhound bus Bell was operating. (Id.) Bell took a refresher course as a result of the January
2009 accident. (Id.)
A March 15, 2009 Form 6 regarding Bell indicates that on March 2, 2009, Bell violated
the federal 15-hour limitation of on-duty performance. (Id. ¶ 17.) A June 6, 2009 Form 6
regarding Bell indicates that on June 3, 2009, Bell did not return a phone call and therefore did
not report to work promptly. (Id.) An August 22, 2009 Form 6 regarding Bell indicates that on
July 21, 2009, Bell violated the federal 15-hour limitation of on-duty performance. (Id.) An
August 17, 2009 Form 6 regarding Bell indicates that on August 17, 2009, Bell was not available
when called and therefore was not available for work. (Id. ¶ 18.) A February 20, 2010 Form 6
regarding Bell indicates that on January 14, 2010, Bell violated the federal 70-hour limitation of
on-duty performance. (Id.)
A Safety Violations Record form is located in Bell’s Personnel file and memorializes
Bell’s safety violations during his employment with Greyhound. (Id. ¶ 19.) The Safety
Violations Record indicates Bell received a 10-hour log violation on June 24, 2008. (Id.)
On April 22, 2010, Bell was operating a Greyhound bus and had an accident where he was struck
by a vehicle after he overshot a pickup point and was reversing his bus in the middle of the road.
(Id. ¶ 20.) Bell took a refresher course as a result of the April 2010 accident. (Id.) On June 23,
2010 Bell was operating a Greyhound bus and had an accident where he hit a stationary concrete
pylon. (Id. ¶ 21.) Bell testified that this accident significantly damaged the bus and rendered it
inoperable. (Id.) Bell took a refresher course as a result of the June 2010 accident. (Id.) Bell
testified that during his employment with Greyhound, he made errors in his driving logbooks six
or seven times and was required to take six or seven refresher courses on logging scheduling.
(Id. ¶ 22.) Bell testified that during his employment with Greyhound, on three or four occasions
he did not respond to a call to report to work. (Id.) Greyhound views all of the accidents in
Bell’s safety record as preventable accidents. (Id. ¶ 23.)
April 26, 2011 Accident
On April 26, 2011, Bell was operating a Greyhound bus on a “turnaround” route that
started in New York City, traveled to Washington D.C., and then turned around and returned to
New York City. (Id. ¶ 24.) Bell used another Greyhound employee as a parking guide when he
was parking his bus at the New York City bus terminal because he could not judge the clearance
between his bus and the other bus. (Id. ¶ 25.) Bell realized that he had misjudged the clearance
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and hit the parked bus when the Greyhound employee serving as a parking guide alerted him that
he had had an accident and thereby created an eight to twelve inch scratch on the bus he had
been parking. (Id.) The April 26, 2011 accident constituted the fourth accident Bell had been
involved in as a Greyhound bus driver. (Id.) The April 26, 2011 accident did not result in: the
loss of human life; anyone receiving medical treatment; either bus incurring disabling damage;
either bus being transported away from the scene by a tow truck or other vehicle; or Bell
receiving a citation. (Id. ¶ 26.)
After the accident, Bell called Greyhound fleet (a call center located in Texas) to report
the accident and allow Greyhound fleet to create an 11-point collision report. (Id. ¶ 27.) The
11-point collision report created by Greyhound fleet states that Bell did not collect any C-4
witness statement reports after the April 26, 2011 accident. (Id.) On April 28, 2011, Greyhound
relieved Bell of duty pending the outcome of Greyhound’s investigation into the April 26, 2011
accident. (Id.)
Greyhound’s Decision to Terminate Bell
Jeannette Dixon, an Operations Supervisor for Greyhound, conducted an investigation
into the April 26, 2011 accident. (Id. ¶¶ 13, 28.) Through her investigation, Dixon concluded
that Bell violated Rule S-2 because he did not identify an accident-producing situation in such a
manner as to take reasonable and prudent action to avoid the accident. (Id.) Stated another way,
Dixon concluded that on April 26, 2011, Bell was involved in a preventable accident. (Id.)
Dixon testified that using another Greyhound employee as a parking guide did not negate Bell’s
violation of Rule S-2 because Bell is “the professional driver” and “it’s still [his] responsibility
with the ground guides or not” because “[he’s] the one in the driver’s seat.” (Id.)
Through her investigation, Dixon concluded that Bell violated Rule S-1-8 because she
believed that Bell did not turn in a Form C-2 accident report within 24 hours of the April 26,
2011 accident. (Id. ¶ 29.) Dixon also concluded that Bell violated Rule S-1-6 because the
11-point collision report created by Greyhound fleet states that Bell did not collect any C-4
witness statement reports after the April 26, 2011 accident. (Id.) In addition, Dixon concluded
that Bell should be charged with a collision because the 11-point collision report created by
Greyhound fleet states that Bell’s bus made contact with another bus, thereby creating a scratch
on Bell’s bus. (Id.)
At the conclusion of her investigation, Dixon compiled her findings into a Form 6 dated
May 8, 2011 and provided the document to her supervisor for review. (Id. ¶ 30.) Thereafter,
Dixon issued the May 8, 2011 Form 6 to Bell. (Id.) The May 8, 2011 Form 6 indicates that Bell
violated Greyhound Rule S-1-6, violated Greyhound Rule S-1-8, and that his record had been
charged with a collision. (Id. ¶ 33.) The May 8, 2011 Form 6 charged Bell with a preventable
accident on April 26, 2011. (Id.) At the time Dixon issued the May 8, 2011 Form 6 to Bell,
everything contained in the May 8, 2011 Form 6 was correct and accurate to the best of Dixon’s
knowledge and ability. (Id. ¶ 30.)
5
Bell’s Grievance
On May 11, 2011, Bell received the May 8, 2011 Form 6 notifying him that Greyhound
had terminated his employment. (Id. ¶ 31.) Bell testified that the first paragraph of the May 8,
2011 Form 6, which states, “[o]n the above date, time, and approximate location your bus made
contact with the rear of bus 6365. While pulling your bus into bay 74 the right rear of your bus
made contact with the rear of bus 6365 causing scratches on the rear of your bus,” is accurate.
(Id.)
The second paragraph of the May 8, 2011 Form 6 states in part: “You are found to be in
violation of Greyhound Rule S-2[.]” (Id. ¶ 32.) Bell testified that it is his subjective belief that
he did not violate Greyhound Rule S-2. (Id.).
On May 13, 2011, Bell submitted a grievance to the Union concerning his termination.
(Id. ¶ 34.) Bell indicated in his grievance that he hit a parked bus on April 26, 2011, but claimed
Greyhound falsely accused him of failing to submit a accident report within 24 hours, failing to
carry Form C-4s, and discriminated against him by firing him based on the allegedly false
charges. (Id.) On May 18, 2011, Greyhound submitted its response to the Union and denied
Bell’s May 13, 2011 grievance. (Id. ¶ 35.) The response to Bell’s May 13, 2011 grievance
stated in part: “Operator Bell was terminated not only due to his lack of carrying C4s, our
investigation shows he was terminated due to his safety record. Based on the above information
this grievance is respectfully denied.” (Id.)
Third Step Conference
On May 26, 2011, Bell sent Bruce Hamilton, then-President of the Union, an electronic
message requesting a third step conference. (Id. ¶¶ 14, 36.) That same day, Hamilton responded
to Bell’s request by informing Bell that the third step conference was being arranged. (Id. ¶ 36.)
On May 26, 2011, Ronald Jordan, a Union Regional Vice-President, appealed Bell’s grievance
to the third step conference. (Id. ¶¶ 14, 37.) Frederick Melton, previously the Chicago City
Manager for Greyhound, on behalf of Greyhound, and Jordan, on behalf of the Union, agreed to
hold the third step conference on July 28, 2011, and thereby extend the third step conference
beyond 15 days after receipt of the Union’s appeal to Step 3. (Id. ¶¶ 13, 37.) On July 28, 2011,
a third step conference was held regarding Bell’s May 13, 2011 Grievance. (Id. ¶ 37.)
Prior to the third step conference, Melton conducted an investigation into Bell and the
April 26, 2011 accident after he found out that he was going to be presiding over the third step
conference. (Id. ¶ 38.) During this investigation, Melton reviewed Bell’s record as a driver and
any safety violations that had been charged to Bell’s record. (Id.) Bell, Melton, Randy Jones, a
Greyhound driver and Union steward, Thomas Pierre, a Greyhound employee, and Jordan (via
phone) attended the third step conference. (Id. ¶ 39.) At the third step conference, the Union
took the position that Bell should not be fired for the April 26, 2011 accident. (Id.) Bell testified
that at the third step conference he stated that the May 8, 2011 Form 6 was inaccurate because “I
did turn in an accident report[,]” “I showed Kevin Conroy [previously Greyhound’s Chicago
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City Manager] the C-4s[,]” and “I did use two backers.” (Id. ¶¶ 13, 39.)
On August 1, 2011, Greyhound issued its third step written decision to the Union and
denied Bell’s Grievance. (Id. ¶ 40.) Bell received the third step written decision on September
14, 2011. (Id.) The third step written decision states in part:
Operator Bell collided with a parked bus while pulling into a loading slip. This is
his fourth chargeable collision since January 15, 2009. He also has several other
safety related infractions charged to his record. During the third step conference
the validity of the language about not having or colleting C-4 witness slips and
failure to complete the [C-2] collision report within twenty-four hours was
questioned by Operator Bell. The company has no problem with dropping that
language from the Form 6 but the collision did occur and will remain charged to
his record. This grievance is denied.
(Id. ¶ 41.)
As noted, Greyhound indicated it would drop the charges in the May 8, 2011 Form 6 that
indicated Bell had violated Rules S-1-6 and S-1-8. (Id. ¶ 42.) Melton testified that “those two
charges were irrelevant to [Bell’s] termination, [because he was] discharged for a collision and
[his] previous record.” (Id.) Melton testified that Bell’s safety record included numerous DOT
violations with regard to the number of hours Bell had driven, violations for speeding, and a total
of four preventable collisions. (Id.) Melton testified that he sent the third step written decision
to the appropriate vice president or assistant business agent of the Union within fifteen days of
the third step conference. (Id.)
The Union’s Decision Not to Proceed to Arbitration
The Union’s Executive Board has the authority to determine whether to take a grievance
to arbitration and the Union is not required under the CBA to take a grievance to arbitration. (Id.
¶ 43.) On August 5, 2011, the Union’s Executive Board voted to authorize Hamilton to further
investigate Bell’s grievance and to make the final decision whether or not to arbitrate it. (Id.)
Hamilton conducted his investigation and determined not to arbitrate Bell’s grievance because
there was no way the Union could win at arbitration. (Id. ¶ 44.) Hamilton testified there was no
chance the Union could prevail in arbitration because Bell’s grievance involved an obviously
chargeable accident, in which Bell admitted to hitting the other bus, and because of Bell’s safety
record and his status as a short-term employee. (Id.)
Even after determining not to take Bell’s grievance to arbitration, Hamilton tried to settle
the case by attempting to persuade Greyhound to put Bell back to work. (Id. ¶ 45.) Greyhound
refused to do so because he was a driver with very low seniority and had multiple accidents and
safety violations on his record. (Id.) In a letter dated September 23, 2011, President Hamilton
informed Bell that the Union had been unable to settle his grievance and that the grievance had
come to an end. (Id. ¶ 46.)
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Bell’s Claims
Bell alleges that he was discriminated against when Ortega, a supervisor at Greyhound,
allegedly concluded that Bell had failed a driver refresher course, and when Bell complained
about “pay” or “why I was taken off that charter,” Ortega allegedly told Bell “if I don’t like it, I
could quit.” (Id. ¶ 55.) Bell testified that Ortega’s alleged actions constituted racial
discrimination because “What other reason would he have? I didn’t do anything to him.” (Id. ¶
56.) Bell also alleges that he was discriminated against when Melton purportedly lied, altered
documents and did not adhere to the CBA during the grievance process. (Id. ¶ 57.) Bell testified
that Melton’s alleged actions constituted racial discrimination because “I didn’t know him” and
because “several people” who Bell “can’t remember” told Bell “rumors” that Melton is racist.
(Id.) Bell testified that it is “kind of hard to believe” that Melton was “doing this for racial
reasons” but that Melton “might be racist” and he just had a feeling that maybe Melton was
motivated by race. (Id. ¶ 58.) Bell testified that maybe Melton had a racist attitude, but he
“can’t swear to it” and did not “know for a fact.” (Id.)
Bell also alleges that he was discriminated against because Greyhound withheld
documents. (Id. ¶ 59.) Bell testified that he does not personally know who allegedly withheld
documents. (Id.) Bell further testified that someone allegedly withholding documents
constituted racial discrimination because “they had to have known . . . that there was other things
I could go for in trying to have this redressed rather than just this grievance process if not fairly
adjudicated, right?” (Id.)
Bell alleges that Greyhound retaliated against him by terminating his employment and by
implementing a grievance process that was “contrived so unfairly to me.” (Id. ¶ 60.) Bell
alleges that Greyhound retaliated against him in part due to his “standing up for my right to be
paid what I worked” roughly one year before his termination. (Id.) More specifically, Bell
alleges that his termination and the grievance process was retaliation for getting into an argument
with Ortega regarding Bell receiving proper payment for the hours he had worked. (Id.)
Bell testified that his termination constituted retaliation for the incident with Ortega
“because I kept hearing people talking about it around the country” and they “were saying
things, like ‘Oh, you’re the one, you’re the Bell who got into it with Karl Ortega. You know,
he’s a powerful man.’” (Id. ¶ 61.) Bell also alleges that his termination was retaliation due to
Bell previously filing the following three grievances: (a) a 2009 grievance that Bell cannot
specifically remember, but he thinks alleged a pay shortage; (b) an October 2010 grievance
alleging that he was not paid for a layover; and (c) a 2010 grievance alleging that Bell was
improperly taken off a particular assignment. (Id. ¶ 62.) Bell testified that his termination
constituted retaliation for the three grievances because “[t]here’s no reason for him [Melton] to
have done the things that he did in keeping me terminated other than either retaliation, racial
animus, or both that I can come up with logically.” (Id.)
Bell testified that the grievance process constituted retaliation because “I don’t know for
a fact. But I cannot come up with a reason why they [Greyhound and the Union] would act that
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way.” (Id. ¶ 63.) Bell alleges that Greyhound breached the CBA with the Union by using false
charges to terminate him rather than just cause and by discriminating against Bell and thereby
allegedly violating CBA Article G-22. (Id. ¶ 64.) Bell alleges that the Union breached its duty
of fair representation because it decided not to pursue arbitration on Bell’s behalf. (Id. ¶ 65.)
Bell alleges that the Union acted arbitrarily, but he “do[es not] know” why he believes as much.
(Id.)
Bell further alleges that the Union took discriminatory actions because they allegedly treated him
differently. (Id. ¶ 66.) Bell does not believe that the Union discriminated against him on
account of his race. (Id.) Bell alleges that the Union acted in bad faith because the decisions the
Union made “weren’t the correct actions[.]” (Id. ¶ 67.)
Intentional Infliction of Emotional Distress
Bell alleges that Greyhound committed intentional infliction of emotional distress
because of the “conglomeration” of allegedly using false charges to terminate him and breaching
the CBA. (Id. ¶ 68.) Bell testified that he does not believe Greyhound intended that its
purported conduct would inflict emotional distress on Bell. (Id.)
Defamation
Bell alleges that Greyhound made the following false statements: (a) that Bell did not
turn in a Form C-2 after the April 26, 2011 accident (b) that Bell was not carrying an adequate
number of Form C-4s after the April 26, 2011 accident; (c) that the April 26, 2011 accident
demonstrated Bell violated Greyhound Rule S-2; and (d) that the April 26, 2011 accident
constituted a “collision.” (Id. ¶ 69.) Bell alleges Greyhound published the alleged false
statements within Greyhound and to the Union. (Id. ¶ 70.) Bell alleges that the publication of
the alleged false statements damaged him because it resulted in his termination and “I can’t seem
to get rid of the nightmares.” (Id.) Bell testified that he believes that the alleged false statements
made by Greyhound caused his termination because “the termination letter said so.” (Id.)
IV.
Analysis
A.
Race Discrimination (against Greyhound)
Bell may attempt to prove his § 1981 race discrimination claim under the direct or
indirect methods. Atanus v. Perry, 520 F.3d 662, 671 (7th Cir 2008).1 Under the direct method,
a plaintiff must produce either direct or circumstantial evidence of discrimination. Mach v. Will
Cnty. Sheriff, 580 F.3d 495, 499 (7th Cir. 2009). Direct evidence usually “requires an admission
of discriminatory animus,” while circumstantial evidence “establishes an employer's
1
While some caselaw cited by the Court may pertain to a discrimination case under Title
VII, “the methods of proof and elements of [a Section 1981] case are essentially identical” to
those in a Title VII case. McGowan v. Deere & Co., 581 F.3d 575, 579 (7th Cir. 2009).
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discriminatory motive through a longer chain of inferences.” Id. According to the Seventh
Circuit,
[c]ircumstantial evidence demonstrating intentional discrimination includes: “(1)
suspicious timing, ambiguous oral or written statements, or behavior toward or
comments directed at other employees in the protected group; (2) evidence,
whether or not rigorously statistical, that similarly situated employees outside the
protected class received systematically better treatment; and (3) evidence that the
employee was qualified for the job in question but was passed over in favor of a
person outside the protected class and the employer's reason is a pretext for
discrimination.”
Atanus, 520 F.3d at 672 (quoting Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 491 (7th
Cir. 2007)). Under the indirect method, a plaintiff must establish a prima facie case of
discrimination with evidence that (1) he is a member of a protected class; (2) he met his
employer’s legitimate job expectations; (3) she suffered an adverse employment action; (4)
similarly-situated employees outside of the protected class were treated more favorably. Smiley
v. Columbia Coll. Chi., 714 F.3d 998, 1002 (7th Cir. 2013). If the plaintiff has evidence that can
meet those four criteria, the burden shifts to the employer to offer a non-discriminatory reason
for the adverse employment action. Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir.
2012). If the employer does so, the burden shifts back to the plaintiff to present evidence that, if
believed by the trier of fact, would show that the real explanation for the action is discrimination.
Id.
Bell did not respond to Greyhound’s motion for summary judgment and therefore has not
indicated whether he is proceeding under the direct and/or indirect methods of proof. Morgan v.
SVT, LCC, --- F.3d ---, 2013 WL 3944269, at *4 (7th Cir. Aug. 1, 2013) (“When a plaintiff is
responding to an employer's motion for summary judgment, he (in this case) must initially
identify whether he is litigating his case under a “direct” or an “indirect” method of proof (or
both).”). Nevertheless, the record as reflected in Greyhound’s statement of facts does not
include any direct or circumstantial evidence of discrimination. As to the indirect method, no
record evidence demonstrates that Bell was meeting Greyhound’s legitimate job expectations or
that similarly-situated employees who are not African American were treated more favorably.
Even assuming that Bell has met the requirements of a prima facie case for race
discrimination, he cannot show pretext. Pretext “means a dishonest explanation, a lie rather than
an oddity or an error.” Faas v. Sears, Roebuck & Co., 532 F.3d 633, 642 (7th Cir. 2008) (internal
quotes omitted). “The question is not whether the employer’s stated reason was inaccurate or
unfair, but whether the employer honestly believed the reasons it has offered to explain the
discharge.” O'Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011). Greyhound
contends that Bell was terminated for his April 2011 accident and other safety violations and the
record does not provide any support for a finding of pretext with respect to these reasons.
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For these reasons, the Court grants Greyhound’s motion for summary judgment as to the
race discrimination claim.
B.
Retaliation (against Greyhound)
Bell alleges retaliation under both § 1981 and Title VII. Specifically, Bell contends that
he was terminated and not treated fairly during the grievance process for getting into an
argument with Ortega about his pay and for his having filed three grievances as to his wages and
work assignments. (Greyhound’s Stmt. Fact, Dkt. # 111, ¶¶ 60-63.)
A plaintiff may establish a prima facie case of retaliation using either the direct or
indirect methods. Coleman v. Donahoe, 667 F.3d 835, 859 (7th Cir. 2012). To avoid summary
judgment on his retaliation claim under the direct method, Bell must point to evidence from
which a jury could conclude that “(1) [he] engaged in activity protected by Title VII; (2) the
[defendant] took an adverse employment action against [him]; and (3) there was a causal
connection between [his] protected activity and the adverse employment action.” Id.; see also
Silverman v. Bd. of Educ. of City of Chi., 637 F.3d 729, 740 (7th Cir. 2011). Alternatively, he
can survive summary judgment under the indirect burden-shifting method if he shows that he:
(1) engaged in statutorily protected activity; (2) performed his job satisfactorily; (3) suffered an
adverse employment action; and (4) was treated less favorably than other similarly situated
employees who did not engage in protected activity. Dear v. Shinseki, 578 F.3d 605, 610-11
(7th Cir. 2009). If Bell sets forth a prima facie case of retaliation, Greyhound must then
articulate a legitimate, nondiscriminatory reason for its decision to terminate him. Vaughn v.
Vilsack, 715 F.3d 1001, 1006 (7th Cir. 2013). If it does so, Bell must then produce evidence
supporting an inference that the proffered reason was pretextual. Id.
Bell cannot survive either method because he did not engage in statutorily protected
activity. Complaints about his pay and work assignments, absent any connection to his race or
other protected classification, do not constitute protected expression. Kodl v. Bd. of Ed. Sch.
Dist. 45, Villa Park, 490 F.3d 558, 563 (7th Cir. 2007) (“To constitute protected expression, ‘the
complaint must indicate the discrimination occurred because of sex, race, national origin, or
some other protected class.’”) (citation omitted). Even assuming the complaints and grievances
were protected expression, Bell has not demonstrated nor does the record reflect that his
termination, which was based on his April 2011 accident and poor safety record, were in any
way caused by his complaints regarding his pay or work assignments. Dixon conducted the
investigation into his April 26, 2011 accident and concluded that Bell had not complied with
certain of Greyhound’s rules and regulations and terminated him. (Union Ex. #8, 5/8/11 Notice
of Personnel Record Entry.) No record evidence establishes that Dixon was aware of any of the
pay complaints or grievances. Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 2004)
(“The key inquiry in determining whether there is a causal connection under the direct method is
whether [the decisionmaker] was aware of the allegations of discrimination at the time of her
decisions to place [the plaintiff] on a PIP and terminate her employment; absent such knowledge,
there can be no causal link between the two.”)
11
Even assuming that Bell has established a prima facie case of retaliation, Bell points to
no competent evidence that Greyhound’s reason for terminating him was pretextual nor does the
record reflect such evidence. Bell’s speculation or reported rumors as to why he was terminated
or how he was treated during the grievance process are insufficient to establish pretext. Hall v.
City of Chi., 713 F.3d 325, 333 (7th Cir. 2013); McDonald v. Vill. of Winnetka, 371 F.3d 992,
1001 (7th Cir. 2004) (“Inferences that are supported by only speculation or conjecture will not
defeat a summary judgment motion.”).
For these reasons, Greyhound’s motion for summary judgment as to the retaliation claim
is granted.
C.
Hybrid Claim under § 301 of the LMRA (against Greyhound and the Union)2
Bell’s suit against the Union for breach of the duty of fair representation and against
Greyhound for breach of the CBA “is referred to as a hybrid suit because it is comprised of two
causes of action that are inextricably interdependent.” McLeod v. Arrow Marine Transp., Inc.,
258 F.3d 608, 613 (7th Cir. 2001) (internal quotation marks and citation omitted). “In a hybrid
301 suit, the employee’s claim against the union and his claim against the employer are
interlocked: neither claim is viable if the other fails.” Crider v. Spectrulite Consortium, Inc., 130
F.3d 1238, 1241 (7th Cir. 1997) (internal quotation marks and citation omitted).
As to the purported breach of duty of fair representation by the Union, Bell alleges that
the Union failed to fairly represent him because it refused to address his contention that
Greyhound made false accusations against him, did not take issue with Greyhound’s purported
breach of the CBA when it failed to issue a timely decision from its third step conference,
allowed Greyhound to alter documents, and generally refused to address Bell’s issues regarding
the reasons for his firing.
In order for Bell to succeed on his breach of duty of fair representation claim against the
Union, he must show that the Union’s conduct toward him was “arbitrary, discriminatory, or in
bad faith.” Yeftich v. Navistar, Inc., 722 F.3d 911, 916 (7th Cir. 2013). A union has “wide
latitude” in representing its members. Id. Bell states that he was not treated fairly by the Union
because “Mr. Jordan3 hat[es] my guts.” (Greyhound Ex. A, Bell Dep. at 295.) Bell also testified
2
Although Bell alleged a claim against Greyhound and the Union which he called
“Intentional Breaches of Contract,” in his response to the defendants’ motions to dismiss, Bell
indicated that the claim was actually a hybrid claim under § 301 of the LMRA. (Dkt. # 41-1, at
3.) Accordingly, the Court construes Bell’s breach of contract claim and his claim against the
Union alleging a breach of duty of fair representation together as constituting his hybrid claim
under § 301 of the LMRA.
3
Ronald Jordan was the Union’s Regional Vice-President. (Union’s Stmt. Facts, Dkt. #
107, ¶ 36.)
12
that the Union was “biased” because it “sided with Greyhound” and its actions were in bad faith
because it did not take the “correct actions.” (Id. at 295-96.) These conclusory and unsupported
statements by Bell are insufficient to create a genuine issue of material fact with respect to the
manner in which the Union dealt with his grievance. The record evidence establishes that Bell’s
grievance was taken through the appropriate process, Greyhound decided not to rehire Bell and
Union President Hamilton, after investigation, elected not to take the grievance to arbitration
after determining it would not be successful. Therefore, Greyhound’s and the Union’s summary
judgment motions on the hybrid claim are granted.
C.
Defamation (against Greyhound)4
Plaintiff alleges that Greyhound defamed him when it stated that he did not turn in an
accident report, was not carrying an adequate number of C-4s, violated Rule S-2, and caused a
collision. According to Bell, Greyhound published these statements in the Form 6, the notice of
personnel action terminating him, within Greyhound and the Union, and, apparently, when the
statements were discussed at his grievance proceedings.
“To prevail on a state law claim for defamation a plaintiff must show that: (1) the
defendant made a false statement about the plaintiff, (2) there was an unprivileged publication of
the defamatory statement to a third party by the defendant, and (3) the plaintiff has suffered
damages.” Smock v. Nolan, 361 F.3d 367, 372 (7th Cir. 2003).
Bell has not established that the above statements were false. Even assuming that Bell
had pointed to record evidence creating a genuine issue of material fact with respect to the truth
or falsity of these statements, the statements are subject to a qualified privilege. “A qualified
privilege protects communications that would normally be defamatory and actionable, in order to
effect the policy of protecting honest communication of misinformation in certain favored
circumstances and thus facilitate the availability of correct information.” Pompa v. Swanson,
990 N.E.2d 314, 321 (Ill. App. Ct. 2013) (citation and internal quotation marks omitted).
“To determine if a qualified privilege exists, a court looks only to the occasion itself for the
communication and determines as a matter of law and general policy whether the occasion
created some recognized duty or interest to make the communication so as to make it
privileged.”
Id. (citation and quotation marks omitted).
The evidence establishes that Dixon made the comments in the Form 6 about Bell’s
failures in good faith and with the belief that they were true, she made the statements based on
4
While an argument could be made that Bell’s defamation claim is preempted by federal
labor law, see, e.g., Scott v. Machinists Auto. Trades Dist. Lodge No. 190 of N. Ca., 827 F.2d
589, 594 (9th Cir. 1987) (“Scott's defamation claim is also based on facts inextricably
intertwined with the grievance machinery of the collective bargaining agreement”), Greyhound
does not make this argument, thus, the Court does not address it.
13
her duty to investigate the April 2011 accident, and the statements were limited in scope, made
on a proper occasion and published in a proper manner and to the proper parties in that no
evidence suggests that the statements were published outside the Form 6 or the grievance
proceedings, which were initiated by Bell. Republic Tobacco Co. v. N. Atl. Trading Co., Inc.,
381 F.3d 717, 727 (7th Cir. 2004) (“A statement is conditionally privileged when the defendant
makes it (1) in good faith; (2) with an interest or duty to be upheld; (3) limited in scope to that
purpose; (4) on a proper occasion; and (5) published in a proper manner only to proper parties.”)
(citing Zeinfeld v. Hayes Freight Lines, Inc., 243 N.E.2d 217, 221 (Ill. 1968)). Moreover, the
statements on the Form 6 were conveyed to the Union because Bell filed a grievance regarding
his termination. Because the statements were made as part of Greyhound’s investigation into
Bell’s accident, and published as part of a union grievance initiated by Bell, they are subject to a
qualified privilege. See, e.,g., Farr v. St. Francis Hosp. and Health Ctrs., 570 F.3d 829, 834 (7th
Cir. 2009) (finding statements in report by computer forensics company were privileged under
Indiana law because “report was used during the grievance proceedings that [plaintiff] initiated
and in response to a report [plaintiff] submitted”); Coghlan v. Beck, 984 N.E.2d 132, 146-47 (Ill.
App. Ct. 2013) (statements made during corporate investigation into employee wrongdoing
protected by qualified privilege); Beauvoir v. Rush–Presbyterian St. Luke's Med. Ctr., 484
N.E.2d 841, 845 (1st Dist. 1985) (remarks made by supervisor regarding reasons for plaintiff’s
discharge were conditionally privileged). If a qualified privilege is established, the
communication becomes actionable only if the privilege was abused. Haywood v. Lucent Techs.,
Inc., 169 F. Supp. 2d 890, 916 (N.D. Ill. 2001). Bell has not pointed to any evidence nor does
the record establish that the privilege was abused here.
For these reasons, Bell’s defamation claim fails and the Court grants Greyhound’s motion
with respect to this claim.
D.
Intentional Infliction of Emotional Distress (against Greyhound and the Union)
Bell contends that Greyhound committed intentional infliction of emotional distress
because of the “conglomeration” of allegedly using false charges to terminate him and breaching
the CBA. (Id. ¶ 68.) Greyhound contends that Bell’s intentional infliction of emotional distress
claim is preempted by § 301 of the LMRA. When a state claim is “founded directly on rights
created by a collective bargaining agreement[]” or “substantially dependent on analysis of a
CBA,” it is preempted by § 301 of the LMRA. Atchley v. Heritage Cable Vision Assocs., 101
F.3d 495, 498 (7th Cir. 1996). However, “only those state-law claims that require
‘interpretation’ of a CBA are inevitably federal.” Crosby v. Cooper B-Line, Inc., --- F.3d ---,
2013 WL 4007928, at *4 (7th Cir. Aug. 7, 2013) (citation omitted). Here, Bell’s claim revolves
around his treatment by the Union and Greyhound with respect to his termination and grievance,
but Greyhound has not shown that the allegations underlying the claim necessarily require
interpretation of the CBA. Therefore, the Court concludes that the claim is not preempted.
In any event, the conduct alleged here does not rise to the level required for a successful
intentional infliction of emotional distress claim. “Liability is triggered only when the
defendant’s conduct is so outrageous and extreme as to ‘go beyond all possible bounds of
14
decency.’” Myers v. Condos. of Edelweiss, Inc., No. 11 C 231, 2013 WL 4597973, at *7 (N.D.
Ill. Aug. 29, 2013) (citation omitted). “Mere insults, indignities, threats, annoyances, petty
oppressions or trivialities are insufficient.” Id. (citations, alterations and internal quotation
marks omitted). Bell’s allegations as to how the Union and Greyhound dealt with his
termination and grievance are insufficient to create a genuine issue of material fact with respect
to this claim.
For these reasons, the defendants’ motions for summary judgment as to this claim are
granted.
V.
Conclusion
For the reasons stated herein, the defendants’ motions for summary judgment [105, 109]
are granted. Civil case terminated.
Date: September 13, 2013
___________________________________
United States District Judge
Ronald A. Guzmán
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