Okere v. Chicago Transit Authority

Filing 63

MEMORANDUM Opinion and Order. Signed by the Honorable Milton I. Shadur on 6/29/2016:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JONATHAN OKERE,
Plaintiff,
v.
CHICAGO TRANSIT AUTHORITY,
Defendant.

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Case No. 14 C 10115

MEMORANDUM OPINION AND ORDER
Jonathan Okere ("Okere") has sued his employer, the Chicago Transit Authority
("CTA"), claiming employment discrimination in violation of Title VII of the Civil Rights Act of
1964 as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"). Now before this Court for decision
is CTA's motion for summary judgment under Fed. R. Civ. P. ("Rule") 56.
Summary Judgment Standards
Every Rule 56 movant bears the burden of establishing the absence of any genuine issue
of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts
consider the evidentiary record in the light most favorable to nonmovants and draw all
reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th
Cir. 2002)). Courts "may not make credibility determinations, weigh the evidence, or decide
which inferences to draw from the facts" in resolving motions for summary judgment (Payne v.
Pauley, 337 F.3d 767, 770 (7th Cir. 2003)). But a nonmovant must produce more than "a mere
scintilla of evidence" to support the position that a genuine issue of material fact exists (Wheeler
v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)) and "must come forward with specific facts
demonstrating that there is a genuine issue for trial" (id.). Ultimately summary judgment is

warranted only if a reasonable jury could not return a verdict for the nonmovant (Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Background 1
For the reasons given in the next section, this opinion adopts the description of the record
presented in CTA's LR 56.1(a) statement of facts as to which there is no genuine dispute. In
brief, all such facts are deemed admitted -- Okere has neither challenged nor supplemented them.
Okere, who is of Nigerian origin, is employed by CTA as a Combined Rail Operator
(C. St. ¶ 2). His position is considered "safety sensitive" (C. St. ¶ 9).
On September 21, 2013 Okere was scheduled to ride alongside the operator of a Green
Line train from Harlem Avenue south to Cottage Grove Avenue and then to operate the train on
its northbound return run to Harlem (C. St. ¶ 22). Due to service disruptions that day, however,
Okere was needed to operate the train on its initial southbound run from Harlem to Cottage
Grove (C. St. ¶¶ 24, 26).
So Manager Roman Alvarado ("Alvarado") radioed Okere and told him to leave the
southbound train he was riding (C. St. ¶¶ 27, 28). Okere did not (C. St. ¶ 28). Alvarado then
explained that Okere was needed to operate a southbound train and again instructed him to leave
the train he was on and wait for the other one to be delivered (C. St. ¶ 28). Okere again refused
to comply (C. St. ¶ 28).
As a result Alvarado told Okere to meet him at the manager's office at the
Madison/Wabash station (C. St. ¶ 28). When Alvarado arrived at that station, though, Okere was
nowhere to be found (C. St. ¶ 29). Okere had instead ridden the train he had been on all the way
__________________________
1
This opinion refers to the parties' memoranda as "Mem. --" or "Reply --," as
appropriate, and their LR 56.1 submissions as "St. ¶ --," with identifying prefixes of "C." for
CTA and "O." for Okere.
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to Cottage Grove (C. St. ¶ 30). Alvarado then repeated his order that Okere meet him at the
Madison/Wabash station (C. St. ¶ 30).
When Okere finally did arrive some 30 minutes later, he got into a heated argument with
Alvarado (C. St. ¶ 31). Alvarado had never seen someone behave as Okere was acting, but he
had been trained to detect signs of alcohol and drug abuse and understood that aggressiveness
was one such indication (C. St. ¶¶ 32-33). Citing Okere's refusal to comply with orders and his
erratic behavior, Alvarado sent him for alcohol and drug testing (C. St. ¶ 34). That test came
back negative (C. St. ¶ 36).
Okere was nonetheless referred to another Manager, Karis Conner ("Conner"), for an
interview about (1) his refusal to follow Alvarado's instructions and (2) the later confrontation
between the two (C. St. ¶ 36). Following that meeting Conner charged Okere with a Gross
Misconduct/Behavioral Violation for poor work performance, insubordination, abuse of
company time and conduct unbecoming an employee (C. St. ¶ 37). Okere was given a three-day
suspension and placed on probation for six months (C. St. ¶ 37).
That same day another employee had left the terminal one minute earlier than his
schedule required but was not, Okere says, told to take an alcohol and drug test (C. St. ¶ 58).
And a second employee had left the terminal late but also was not tested for substance abuse
(C. St. ¶ 59). Okere admitted at his deposition, however, that the second employee was not at
fault for that delay and had no interaction with Alvarado (id.).
That was not the only incident that gave rise to Okere's Title VII claim. On April 14,
2014 he was assigned to the Harlem terminal yard to work as an Extra Switchman, which
involves operating a machine called a "Sleet Fighter" during inclement weather in addition to all
the regular duties of a Switchman (C. St. ¶¶ 38-40). On that day he was under the supervision of

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a different Manager, Tomyka Latson ("Latson") (see C. St. ¶¶ 41-42). When Latson ordered
Okere to operate the Sleet Fighter a second time during his shift, he refused based on his
interpretation of a grievance arbitration award (the "Fleischli Award") (C. St. ¶ 41).
As a result of that refusal Latson ordered Okere out of service and directed him to see her
supervisor Gwennette Jordan ("Jordan") the following day (C. St. ¶ 42). Jordan too charged
Okere with a Gross Misconduct/Behavioral Violation for insubordination (C. St. ¶ 43). Under
CTA disciplinary regulations such a second violation could have resulted in Okere's referral to
the General Manager for possible discharge, but Jordan instead gave him a three-day suspension
and twelve months' probation (C. St. ¶ 43 and Ex. 18). Later a neutral arbitrator determined that
Latson's order and Jordan's consequent discipline did not violate the Fleischli Award or the
Collective Bargaining Agreement (C. St. ¶ 44).
Okere points to three other employees who were not asked to operate the Sleet Fighter or
disciplined for failing to do so (C. St. ¶ 60). But he does not know if they refused any work
assignments or whether anyone issued them any direct orders that they could have disobeyed
(C. St. ¶¶ 61-62).
Shifting from a defensive posture to the offensive, Okere filed two charges against CTA
with the Equal Employment Opportunity Commission ("EEOC") on December 2, 2013 and
May 13, 2014 respectively (C. St. ¶ 5). Then he filed this action on September 17, 2014 (C. St.
¶ 7), and two weeks later (on September 30) EEOC sent him his right-to-sue letter (C. St. ¶ 6).
Okere then filed a single-count Amended Complaint on February 24, 2015, charging that he had
been subjected to national-origin discrimination in violation of Title VII (C. St. ¶ 7).
LR 56.1 Requirements and Okere's Limited Compliance
LR 56.1(a) requires each Rule 56 movant to submit a statement of assertedly uncontested
facts, with citations to the record in support of each fact alleged. Then LR 56.1(b) requires each
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nonmoving party to respond point by point, with citations to the record in support of (1) any
claimed dispute as to the movant's version of the facts and (2) any additional facts that the
nonmovant chooses to assert.
As taught by such cases as Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir.
2008) (internal quotation marks omitted):
District courts are entitled to expect strict compliance with Rule 56.1.
Accordingly they may disregard facts presented in any manner that does not comply with that
rule (id.), including references to depositions and other discovery materials that appear only in
supporting briefs (Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999)). Where a party fails to
deny an LR 56.1(a) factual allegation or neglects to support its denial with a specific reference to
the record, that allegation is ordinarily deemed admitted for purposes of the motion (LR
56.1(b)(3)(C); Ammons v. Aramark Uniform Servs. Inc., 368 F.3d 809, 817-18 (7th Cir. 2004)).
Nevertheless, a district court should consider facts as admitted only if the allegations in the
movant's own LR 56.1(a) statement are themselves "properly supported by references to the
record or other evidentiary material" (Stewart v. McGinnis, 5 F.3d 1031, 1034 (7th Cir. 1993)).
Okere's response to CTA's LR 56.1(a) statement is highly problematic in those terms: It
neither supplements that statement with additional facts that would require the denial of
summary judgment nor -- more importantly -- does it effectively controvert any of the facts put
forward by CTA. Instead, to each numbered paragraph in CTA's statement of facts Okere
responds with either (1) an admission, (2) a flat denial without any specific reference to the
record or (3) this nonsensical response:

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Plaintiff does not have sufficient information to either admit or deny paragraph
[--] of SMF 2 and neither admits nor denies same but requires strict proof thereof.
But McGuire v. United Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998) has long since held that
an almost identical statement triggers the automatic admission provision of LR 56.1(b)(3)(C)
(then LR 12(N)(3)(b)).
To be sure, Okere's assertion of ignorance may be appropriate at the pleading stage or in
responding to requests to admit -- although even there his demand for strict proof, which has
become almost a tic among some members of the bar, is wholly out of place in any pleading (see
App'x ¶ 1 to this Court's opinion in State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278
(N.D. Ill. 2001)). But here CTA's motion is one for summary judgment, and what is called for in
response is not whether Okere admits or denies the truth of an assertion but whether he can
controvert it with evidence of his own. If Okere cannot do so as to any statement supported by
record evidence, he must admit that there is no genuine issue as to that fact. Outside of the
limited circumstances governed by Rule 56(d), which is inapplicable here, it is therefore never
appropriate to respond to such an LR 56.1 statement by protesting an inability to admit or deny
it.
Far graver than the issues just mentioned is the substance of Okere's own LR 56.1(b)
statement. This Court cannot comprehend how some of the denials or assertions of ignorance
contained in that statement were made in the good faith required by Rule 11(b)(4). For example,
O. St. ¶¶ 41, 44, 46, 48 and 52 deny or plead an inability to answer non-argumentative
descriptions of Okere's own deposition testimony or Amended Complaint or answers to
interrogatories. And O. St. ¶¶ 8, 9, 11-17, 21, 35 and 51 do the same in response to plainly
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2
"SMF" is the acronym employed by Okere's counsel to refer to CTA's LR 56.1
Statement of Material Facts.
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accurate document summaries. Hence the Conclusion to this opinion includes a rule to show
cause.
In any event, the teaching of LR 56.1(b)(3)(C) plus Ammons, 368 F.3d at 817-18 and
McGuire, 152 F.3d at 675 is clear. All of the facts in CTA's LR 56.1(a) statement are supported
by specific references to the record 3 and so are deemed admitted.
Employment Discrimination
Title VII (in 42 U.S.C. § 2000e-2(a)(1)) makes it an unlawful employment practice for
any employer
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color, religion, sex,
or national origin[.]
As reiterated in Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013), to succeed in a
Title VII employment discrimination lawsuit a plaintiff must show (1) membership in a
statutorily protected class, (2) an adverse employment action or hostile work environment and
(3) that the employer took the adverse action because of the plaintiff's membership in the
protected class.
Adverse Employment Action
For an employment action to give rise to a discrimination claim under Title VII, it must
"materially alter the terms or conditions of employment" (Porter v. City of Chicago, 700 F.3d

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3
In C. St. ¶ 58 the first sentence is supported by the portions of the record referred to in
C. St. ¶ 57 rather than the portion cited following that paragraph's second sentence (compare
C. St. ¶ 58 with C. St. Ex. 2 at 151:8-19 and C. St. Ex. 2 at 363:13-22), but that editorial mistake
does not detract from CTA's compliance with LR 56.1(a).

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944, 954 (7th Cir. 2012)). 4 In that regard "not everything that makes an employee unhappy is an
actionable adverse action" (id. (internal quotation marks omitted)). Instead "the action must be
more disruptive than a mere inconvenience or an alteration of job responsibilities" (id. (internal
quotation marks omitted)). As Barton v. Zimmer, Inc., 662 F.3d 448, 453-54 (7th Cir. 2011) has
summarized:
Adverse employment actions for purposes of the federal antidiscrimination
statutes generally fall into three categories: (1) termination or reduction in
compensation, fringe benefits, or other financial terms of employment;
(2) transfers or changes in job duties that cause an employee's skills to atrophy
and reduce future career prospects; and (3) unbearable changes in job conditions,
such as a hostile work environment or conditions amounting to constructive
discharge.
Nonetheless the operative test requires only that the change be "significant," and "exactly what
that means will vary on the facts of a given case" (Ellis v. CCA of Tenn., LLC, 650 F.3d 640,
649 (7th Cir. 2011)).
As to the particular subject of alcohol and drug testing, Stockett v. Muncie Ind. Transit
Sys., 221 F.3d 997, 1001-02 (7th Cir. 2000) has said:
[U]nder circumstances where a drug test is not performed in a routine fashion
following the regular and legitimate practices of the employer, but is conducted in
a manner that harasses or humiliates employees, requiring that the employee
submit to the drug test as a condition of employment may be an adverse
employment action that is actionable under Title VII.
But in Stockett, id. at 1002 our Court of Appeals found that requiring an employee to take a drug
test after the employer had received a report that the employee was using drugs, after a trained
observer had determined that he exhibited the signs of intoxication and pursuant to a published
drug policy did not run afoul of that test.
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4
By contrast, retaliation claims can be based on less significant changes or actions
altogether outside of the employment context (Huri v. Office of the Chief Judge of the Circuit
Court of Cook County, 804 F.3d 826, 833 and n.3 (7th Cir. 2015)).
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So Okere's extended quarrel with his having been sent for drug testing at all does not
state an actionable claim. There is no evidence (1) that the manner in which the tests were
conducted was harassing or humiliating or (2) that supports Okere's assertions at O. Mem. 2, 8
and 33 that CTA's drug and alcohol testing policy was not strictly or equally enforced. And
Okere's persistence in citing the policy applicable only to non-safety-sensitive employees to urge
that Alvarado's action somehow did not conform to established procedures (O. Mem. 11, 19) -even after the incontrovertible inapplicability of that policy was pointed out to him by CTA
C. St. ¶ 54) -- is baffling.
Okere's remaining arguments on that score amount only to the assertion that the drug and
alcohol test was improper because he did not exhibit any indication of being under the influence
of a controlled substance (O. Mem. 8 n.1, 19). But in adverting to the list of such indications
contained in CTA's policy manual -- which mirrors the listing that the Federal Transit
Administration specifies as requiring testing (compare C. St. Ex. 10 at CTA001862 with 49
C.F.R. § 666.43(a)-(b)) -- he fails entirely to mention the one that Okere was seen to manifest:
behavior. Alvarado was trained to identify the signs of possible alcohol or drug use, and
Alvarado's reasonable suspicion based on specific, contemporaneous and articulable
observations about Okere's abnormally erratic behavior sufficed under the policy that applied to
Okere (see C. St. Ex. 10 at CTA001862). Nothing on the record other than Okere's
unsubstantiated innuendo stands against the obvious conclusion that he was sent for testing
pursuant to CTA's regular and legitimate practices.
Nor does a single occasion on which Okere was asked to drive the Sleet Fighter twice in
one night or to work an additional assignment constitute a materially adverse employment action.
It may fairly be assumed that when that machine is needed, conditions are such as to render

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operating it unpleasant. But one occurrence when it might have been unfair to ask Okere rather
than one of his co-workers to do so, either because he had already been given his allotment of
assignments or because it was in some sense their turn to perform that particular task, does not
even begin to approach anything like constructive discharge, and no evidence suggests that it
was otherwise a significant change to Okere's conditions of employment.
With all of that said, only one adverse employment action remains for consideration:
Okere's two suspensions without pay, which of course affected his compensation. Thus this
opinion proceeds to the question of discriminatory intent solely as to those suspensions.
Discriminatory Intent
Where a Title VII claim is predicated on a plaintiff employee's race, color, religion, sex
or national origin, the employee need show only that his status was a motivating factor in an
adverse employment action (EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032
(2015)). As such cases as Martino v. W. & S. Fin. Group, 715 F.3d 195, 201-02 (7th Cir. 2013)
have explained, there are two recognized frameworks for establishing the requisite
discriminatory intent: the direct method that relies on direct or circumstantial evidence and the
indirect method derived from the burden-shifting formula of McDonnell Douglas Corp. v. Green,
441 U.S. 792 (1973).
It may well be that in Okere's mind every ill that he suffers is motivated in part or in
whole by his Nigerian origin or that the ill would not have befallen him but for that origin. But
when Okere's attempts to paint CTA's reason for punishing him as pretextual, and when his
contention that others who were similarly situated were treated better are subjected to
objective -- not purely self-centered -- scrutiny, those fancied causal relationships call into play
Alexander Pope's well-known aphorism in his Essay on Criticism ll. 561-62 (1711):

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All seems infected that th' Infected spy,
As all looks yellow to the jaundic'd Eye.
Although this opinion could be lengthened by an extended analysis of the dual methods
establishing discrimination and Okere's total failure under each, any such discussion is
unnecessary because of the undisputed and critical differences that render his claimed
comparators totally noncomparable. Thus Conner's write-up punished Okere for his unexplained
refusal to follow direct instructions and his unacceptable disrespect toward his supervisors, not
for violating CTA's drug and alcohol policy -- and not one of his fellow employees who were not
disciplined was guilty of such insubordination. And the same is true of Jordan's punishment of
Okere for violating an order to perform his job duties that he actually did violate -- an offense
that none of Okere's supposed comparators committed or was charged with.
Indeed, all five non-Nigerian employees whom Okere identifies were treated similarly
with respect to the standards to which they were held -- the fact that they were not disciplined
resulted instead from the fact that they did not refuse direct orders or hurl invectives at their
managers. Indeed, Okere ascribes no remotely comparable wrongdoing to his purported
comparators that would render his 2014 suspension suspect. Thus he concedes that the train
operator who left the Harlem terminal late on September 21, 2013 was not similarly situated
(O. Mem. 2). And his other coworker's departure from the station one minute early that day is
not an infraction in any way comparable to Okere's.
In short, the undisputed facts on the record establish that Okere is a repeatedly
insubordinate employee who also happens to be Nigerian. He was punished for his
insubordination, not for being from Nigeria.

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Conclusion
For the reasons stated in this opinion, CTA's motion for summary judgment (Dkt. No. 43)
is granted, and judgment is ordered to be entered in favor of CTA and against Okere. And
pursuant to Rule 11(c)(3) Paul Otobusin, the attorney who signed Okere's LR 56.1(b)
submission, is ordered to appear before this Court on July 6, 2016 at 9:15 a.m. to show cause
why he and his client should not be sanctioned for denials and assertions of ignorance that
violated Rule 11(b)(4).

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: June 29, 2016

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