Damptz v. Northeast Illinois Regional Railroad Commuter Corporation
MEMORANDUM Opinion and Order: For the reasons set forth in the accompanying Memorandum Opinion, defendant's motion for summary judgment 115 is granted. Any other pending motions are denied as moot. Enter Judgment Order. Civil case terminated. Signed by the Honorable John J. Tharp, Jr on 9/5/2017. Mailed notice(air, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
NORTHEAST ILLINOIS REGIONAL
COMMUTER RAILROAD CORP.,
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Damptz claims he was discriminated against based on two disabilities
and retaliated against twice over the course of more than seven years by his employer. His
employer, Metra, has moved for summary judgment on all claims. Because Damptz has failed to
demonstrate that several of his claims are timely, that he could continue to perform his job with
reasonable accommodation, or that his employer had any retaliatory intent, the motion for
summary judgment is granted in its entirety.
1. Plaintiff’s Non-compliance with Local Rule 56.1
Before the Court can give the necessary background on this case, it must consider
Plaintiff’s compliance with Local Rule 56.1(b)(3). This rule requires a “concise response to the
movant’s statement” that must include specific references to the record in the event of a dispute
and a short statement of numbered paragraphs that similarly reference the relevant record.
Failure to comply with this rule results in the movant’s factual allegations being deemed
admitted. Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000). Purely argumentative denials
or meaningless facts (that is, those that do not require denial of summary judgment) are
inappropriate in a response. Id. “[L]engthy recitations of additional facts” in responses to the
movant’s facts do not comply with L.R. 56.1(b)(3). Ciomber v. Coop. Plus, Inc., 527 F.3d 635,
644 (7th Cir. 2008). The Court is entitled to require strict compliance with this rule. Flint v. City
of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015).
Like the nonmovant in Ciomber, Plaintiff’s response contained “several extremely long,
argumentative paragraphs” in which he denied Metra’s “proposed material facts and presented
additional facts of his own.” Ciomber, 527 F.3d at 644. For example, Plaintiff’s response to
Metra’s fact ¶ 7 (that Plaintiff was a member of a collective bargaining unit and subject to the
CBA) runs almost three pages even though it is “undisputed as to the language” (whatever that
means). See Pl.’s Resp. to Def.’s Facts (“PSOF”) ¶ 7, ECF No. 138. The response includes a
discussion of 13 sections of the CBA, the job duties of Metra’s Senior Director of EEO/Diversity
Initiatives, and whether Damptz requested an accommodation. None of which, obviously, are
relevant to whether Plaintiff was subject to the CBA or in a collective bargaining unit.
Similarly, in response to Metra’s fact ¶ 12 (that by August 2010, Plaintiff was the only
Machinist Helper at Metra and Metra was in dire need of Machinists), Plaintiff disputed only the
wore “dire” but then went on to discuss how Plaintiff felt about losing his seniority, job tasks
Plaintiff could perform despite his disability, and the impact of Plaintiff’s loss of seniority. See
id. at ¶ 12. Several of the facts alleged in this paragraph also lack citation to the record.
Plaintiff’s response to Metra’s ¶ 13 similarly goes on for almost three pages and his response to
¶ 31 runs almost four pages. Plaintiff merely gave general denials and then referenced his
rambling response to ¶ 7 in response to Metra’s ¶ 25 and ¶ 26. Many of Plaintiff’s responses
include a citation to “RDF-PAG ______” (emphasis in original), which the Court takes to be an
incomplete citation to an unknown and otherwise unidentified document. See id. at ¶¶ 36, 37, 38,
39, 47, 48.
Plaintiff’s statement of additional facts also violates the Local Rule’s requirement that
such additional facts be confined to those “that require the denial of summary judgment.” L.R.
56.1(b)(3)(c). For example, one of Plaintiff’s additional facts is “Arthur Olsen is Manager
Mechanical Department Olsen first met Damptz in 2001.” Pl.’s Statement of Additional Facts
(“PSAF”) ¶ 9. However, Olsen is not mentioned anywhere in Plaintiff’s brief other than a vague
reference to him among a list of employees whose depositions Metra did not rely upon. See Pl.’s
Resp. at 6 (“Including Neir’s significant testimony about Damptz as a qualified individual with a
disability, Metra excludes the testimony of its employees: Countess Cary, Vol. II; Dubin; David
May; Kevin Neir; Olsen; and Noelle Rodriguez.”). Similarly, ¶ 23 includes an irrelevant
anecdote in which a supervisor once allegedly told Plaintiff to perform oral sex in exchange for a
promotion. PSAF ¶ 23. Two of Plaintiff’s “facts” simply state the content of attachments. See id.
at ¶¶ 25-26.
The foregoing examples are merely illustrative but should suffice to explain why the
Court chooses to strictly enforce L.R. 56.1 (which is essential to the Court’s ability to determine
whether disputes of material fact exist). Accordingly, the Court finds the following facts
2. Relevant Facts
Plaintiff Michael Damptz is an Illinois resident who has worked for many years for Metra
(legally known as the Northeast Illinois Regional Commuter Railroad Corporation). See Def.’s
Statement of Facts (“DSOF) ¶¶ 1, 6. Plaintiff was hired by Metra as a Coach Cleaner in May
1988 and was promoted to Machinist Helper in October 1988. Id. at ¶ 6. In August 2010, Metra
needed Machinists, so Plaintiff was promoted to Machinist (receiving a higher rate of pay and a
new seniority date) and the Machinist Helper position was eliminated. Id. at ¶¶ 12, 13, 22.
Machinists “inspect and repair running and dead trains, and rehab locomotives.” Id. at
¶ 15. Essential duties include using equipment such as air tools, impact guns, hammers, sledges,
adjustable height ladders, and scissor lifts. Id. at ¶ 16. According to the Department of Labor,
Machinists must frequently lift five pounds and occasionally lift up to 50 pounds, as well as
frequently grasping, ambulating, finely manipulating, and reaching out. Id. at ¶ 17. At Metra,
Machinists inspect locomotive engines, which can require climbing a ladder on the side of the
engine, lifting over 20 pounds, using vibrating tools, grasping tools and parts, and lifting and
working above the shoulder level. Id. at ¶ 20.
Plaintiff was on medical leave from his job at Metra from June 2003 through June 23,
2004 and September 2005 to September 2008. DSOF ¶ 28. Plaintiff discovered he had hearing
loss in 2007, which he blamed on his work at Metra. Id. at ¶ 30. In January 2009, Metra began
requiring employees to wear hearing protection, but Plaintiff did not do so because he stated it
interfered with his hearing aids. Id. at ¶¶ 31-32. Metra removed Plaintiff from work in February
2009 because he would not wear the hearing protection, but he was reinstated in June 2009,
when he returned and agreed to wear hearing protection. Id. at ¶¶ 33-34. Also in June 2009,
Plaintiff sued Metra under the Federal Employers’ Liability Act for his hearing loss; that suit
later settled. Id. at ¶ 35. At his deposition, Plaintiff stated he was satisfied with Metra’s hearing
protection and had not asked for different hearing protection or other protections. Id. at ¶ 36.
On July 5, 2013 (almost three years after being promoted to Machinist), Plaintiff filed a
charge with the Equal Opportunity Employment Commission (“EEOC”) alleging that his
seniority date had been reset when he became a Machinist in retaliation for requesting an
accommodation for his hearing loss. See Compl. Ex. 1. He also submitted an internal “protest
letter” to the Chief Mechanical Officer regarding his seniority date on April 18, 2014. DSOF
¶ 38. Plaintiff continued to work for Metra as a Machinist after filing the EEOC charge. He
received a right to sue letter on this charge on November 14, 2014. See Compl. Ex. 2.
On July 9, 2013, Metra was notified that Plaintiff had injured his neck and shoulder and
his physician stated he could not lift over 10 pounds, lift overhead or work overhead, be in a
“vibratory environment,” or work around fast-moving machinery. DSOF ¶ 40. As an
accommodation, Plaintiff asked for a helper who would do the tasks he could not. 1 Id. at ¶ 41.
Metra does not appear to have provided an assistant, and instead assigned him to light duty tasks
such as wiping engine blocks. Id. at ¶ 42. Plaintiff did this until he went on medical leave for
neck surgery on June 9, 2014. Id. The surgery medical leave spawned a currently pending state
court case. Id.
Beginning in September 2013, Metra assigned a case manager from MedVoc, a
rehabilitation consultant, to assist Plaintiff in finding a new job that would not interfere with his
medical restrictions. DSOF ¶ 43. The case manager could help with securing a job at Metra or a
different organization. Id. at ¶ 55. Plaintiff, however, considered the case manager a “nobody”
and refused to return her calls or answer her letters. Id. at ¶¶ 52-57. One time, Plaintiff returned
the call, only to hang up when the case manager identified herself as such. Id. at ¶ 57. The case
manager’s attempted outreach extended until at least February 18, 2016 without success. See id.
at ¶ 62.
Meanwhile, Plaintiff sought the opinions of many doctors, many of whom issued
restrictions that conflicted with the regular job duties of a Machinist, such as lifting, overhead
work, and using vibratory tools. See DSOF ¶¶ 44, 45, 46, 47, 63, 67, 68. His doctor explicitly
stated Plaintiff should not work until at least October 2014, and could return only with
Metra admits that people returning from medical leave were frequently given a “helper”
(presumably temporarily) so that “the employee could re-familiarize with the job.” PSAF ¶ 11.
restrictions. Id. at ¶ 44. At least one doctor indicated that Plaintiff could return to work. Id. at
¶ 58. Plaintiff did in fact return to work on March 14, 2016. Id. at ¶ 65. When it appeared he had
difficulty climbing ladders, a supervisor offered to construct a ramp. Id. at ¶ 66. On May 31,
2016, however, Plaintiff’s doctor stated he could not climb stairs or walk on uneven ground
(such as a ramp), in addition to lifting, grasping, and vibrating tool restrictions. Id. at ¶ 68.
On June 16, 2015, Plaintiff filed a second EEOC charge, alleging that beginning in
September 2014, Metra had failed to accommodate his disability by refusing to allow him to
work within his medical restrictions. See Compl. Ex. 3. He received a right to sue letter on this
second charge on September 14, 2015. See Compl. Ex. 4. Plaintiff initially filed this suit on
February 12, 2015 and filed a second amended complaint on November 4, 2015. Metra has
moved for summary judgment as to all claims.
Plaintiff brings six counts in his second amended complaint under the Americans with
Disabilities Act (“ADA”). First, he claims disability discrimination based on his hearing loss,
including the failure to provide him with hearing protection in 2009 and the loss of his seniority
when he was promoted to Machinist in 2010. Second, he claims failure to accommodate his
hearing loss (presumably through failure to provide adequate hearing protection). Third, he
alleges retaliation for filing his FELA lawsuit in 2009, in the form of failing to accommodate his
hearing loss, transferring him to less desirable locations due to the loss of his seniority, and
forcing him to engage in irregular and demeaning jobs. Fourth, he charges Metra with disability
discrimination based on his neck and shoulder injury and his placement on unpaid leave
beginning in August 2014. Fifth, he claims failure to accommodate his neck and shoulder injury
by refusing to allow him to return to work. And sixth, he alleges retaliation for demanding
accommodation for his neck and shoulder injury and filing an EEOC complaint in June 2015 by
refusing to allow him to return to work. These complaints can most easily be broken into two
groups – the hearing-related claims and the neck and shoulder-related claims.
I. Hearing-Related Claims
As an initial matter, it should be noted that Plaintiff’s brief, filed by counsel, is so riddled
with errors it is at times incomprehensible. The first two substantive paragraphs appear to have
nothing to do with this case, as they reference a plaintiff named “Gunty” who suffered from
depression and named Exelon as the defendant. See Pl.’s Resp. at 1-2, ECF No. 136. This text
appears to relate to Gunty v. Exelon Corporation, No. 1:14-cv-04756, another case being handled
by Plaintiff’s counsel; this brief was evidently prepared using a brief in that case as a template
but without bothering to proofread the document to ensure that references to the parties and
issues in the template case had been deleted. The brief then lists, in bullet point form, three pages
of summary of Metra’s answer, without any explanation as to why these admissions and denials
constitute disputes of material fact. The brief then discusses whether or not Plaintiff has a
disability, something Metra did not dispute in its opening brief. After a completely citation-less
discussion of the collective bargaining agreement (“CBA”) and a facts section that also contains
no citations to the record but does helpfully note “[need cite]” in several places, Plaintiff finally
moves on to engage for the first time with one of Metra’s arguments.
Metra’s first argument is that all the hearing-related claims should be dismissed for
failure to file a timely EEOC charge. “[A]n employee may sue under the ADEA or ADA only if
he files a charge of discrimination with the EEOC within 300 days of the alleged unlawful
employment practice.” Flannery v. Recording Indus. Ass'n of Am., 354 F.3d 632, 637 (7th Cir.
2004) (internal quotation marks omitted). Here, Plaintiff discovered his hearing loss in 2007 and
had a dispute with Metra regarding proper hearing protection from January 2009 to June 2009,
when he satisfactorily received hearing protection. See DSOF ¶¶ 29-36. He lost his seniority
when he became a Machinist in August 2010. Id. at ¶ 13. Plaintiff did not file his EEOC charge
until August 2013, well outside the 300 day window for bringing claims for the failure to
accommodate him by providing proper hearing protection in 2009 or losing his seniority in 2010.
The Complaint alleges that the relevant retaliation was failing to provide adequate hearing
accommodation, placing Plaintiff in less desirable locations “as a result of losing his seniority”
and forcing Plaintiff to engage in “irregular and demeaning jobs.” Compl. ¶ 48 (emphasis
added). Clearly the first two actions were outside the relevant 300 day period, and the Court is
unsure what “irregular and demeaning jobs” Plaintiff was assigned to during this period as the
only job Plaintiff may have believed was demeaning was wiping down engine blocks, which
occurred when he was placed on light duty as a result of his shoulder injury years after his
protected activity regarding his hearing loss. See Def.’s Mem at 10.
Plaintiff appears to concede that Counts I, II, and III (all the hearing-related claims) are
untimely. After explicitly stating (in a statement that appears to be taken directly from Metra’s
brief, although it is not marked as a quotation and Metra’s brief is not cited) “Plaintiff failed to
timely satisfy the statutory requirement and, accordingly, Count I, II, and III should be
dismissed,” Plaintiff’s brief goes on to say “This appears to be correct as the court agrees there
must be a specific event and there is no continuing of this.” See Pl.’s Resp. at 13. Though it
borders on gibberish, the Court understands this to conceded that the claims are untimely. But
even if that was not the Plaintiff’s intent, he has presented no argument that his claims are timely
and the Court is not obligated to guess at what Plaintiff’s arguments might have been. 2 See
Finally, the Court notes that even if Plaintiff did mean to argue that the 2013 enginewiping was in retaliation for his requests for 2009 requests for accommodation and lawsuit, the
events are too far apart to raise a triable causation issue. Only a year between complaints and an
Holman v. Indiana, 211 F.3d 399, 405 (7th Cir. 2000). Therefore, the motion for summary
judgment is granted as to Count I, II, and III.
II. Neck and Shoulder-Related Claims
Plaintiff brings three claims surrounding his 2013 neck and shoulder injury. First, he
alleges disability discrimination based on Metra’s decision to place him on unpaid leave. Second,
he claims failure to accommodate for failing to find him a job within Metra that would
accommodate his medical restrictions. Third, he alleges he was retaliated against for filing his
hearing loss charges, requesting an accommodation for his shoulder injury, and filing his second
EEOC charge because Metra placed him on unpaid leave rather than allowing him to return to
A. Discrimination and Failure to Accommodate
Metra’s arguments as to the disability discrimination and failure to accommodate claim
overlap. Both arguments essentially boil down to this: Metra allowed Plaintiff to do the work he
could do until he could no longer perform the essential functions of his current job and he
refused to work with Metra’s caseworker to find a new position, none of which violates the
ADA. From Plaintiff’s injury in July 2013 until his surgery in June 2014, Plaintiff was assigned
to light duty based on his medical restrictions, which included wiping engine blocks. DSOF ¶ 42.
After the surgery, Plaintiff’s doctor initially recommended he not work until October 2014, and
when he returned to work he could not lift over 20 pounds, work around moving machinery, use
vibratory tools, or do other tasks. See id. at ¶ 55. Plaintiff underwent numerous medical
adverse action is not sufficient to establish causation in a retaliation suit without more, see Hnin
v. TOA (USA), LLC, 751 F.3d 499, 508 (7th Cir. 2014), and here the gap is multiple years.
Plaintiff points to no evidence this task, even if it was demeaning, was connected in any way to
Plaintiff’s years-earlier hearing-related protected activities. Therefore, Metra is also entitled to
summary judgment on Count III because Plaintiff has failed to adduce a causal connection
between the protected activity and the alleged retaliation.
reevaluations, most of which indicated he had similar restrictions, until he was allowed to return
to work on March 14, 2016. See id. at ¶ 65. When he returned, Plaintiff complained about
difficulty climbing into train coaches, and the department offered to construct a ramp as an
alternative means of doing so, but his work restrictions later included not walking on uneven
ground and not climbing stairs (defeating the workaround proposed by Metra). See id. at ¶¶ 6668. Metra then determined that Plaintiff could no longer perform necessary aspects of his job as a
Machinist, apparently placing him on unpaid leave as a result. See id. at ¶ 69; Compl. ¶ 33.
Throughout the course of his injury, Plaintiff had an assigned caseworker who was supposed to
work with him to find a job (at Metra or elsewhere) that he could do, but he refused to work with
(or even speak to) the caseworker.
To demonstrate disability discrimination or a failure to accommodate, a plaintiff must
first show that “(1) he is disabled within the meaning of the ADA (2) he is qualified to perform
the essential functions of the job either with or without reasonable accommodation and (3) he
suffered from an adverse employment action because of his disability.” Moore v. J.B. Hunt
Transp., Inc., 221 F.3d 944, 950 (7th Cir. 2000). A plaintiff must show not only that he has the
requisite skills and experience, but that he is also could still do the essential functions of the job
with a reasonable accommodation (or without needing any such accommodation). See Brumfield
v. City of Chicago, 735 F.3d 619, 632 (7th Cir. 2013). Here, Plaintiff’s own doctors indicated
that he could not do certain essential job duties, such as lifting tools over 20 pounds, grasping
tools, and working in a moving vibratory environment. Thus, Plaintiff would certainly need an
accommodation, and the question becomes whether that accommodation is reasonable.
In his brief, Plaintiff identifies several potential accommodations: working in the KYD
Air Room, performing visual inspections, and working with an apprentice who would handle
lifting. See Pl.’s Resp. at 18. In his own deposition, however, Plaintiff acknowledged that
working in an air room requires grasping tools, which his medical restrictions do not allow him
to do. See Def.’s Ex. K, 229:22-230:5. Thus, working in an air room is not a viable
accommodation because Plaintiff would still be unable to do the job. Similarly, Plaintiff could
only perform a visual inspection of trains in certain locations, because he could not climb up
ladders or stairs, a task typically required for inspections. See DSOF ¶ 19. Inspections also
include checking various fluid levels, break testing, and changing parts as needed, which require
lifting over 20 pounds, using vibrating tools, and grasping tools. See id. at ¶ 20. Thus, Plaintiff
could only do a small part of the inspection and would need someone else to do the rest. The job
description of a Machinist describes the general duties as being “responsible for repair of running
and dead trains, and rehabbing of locomotives.” See Def.’s Ex. H. Plaintiff cannot lift, grasp, or
use many of the tools necessary for such repairs.
“To have another employee perform a position's essential function, and to a certain extent
perform the job for the employee, is not a reasonable accommodation.” Majors v. GE, 714 F.3d
527, 534 (7th Cir. 2013). It is the plaintiff’s burden to show that an accommodation is reasonable
on its face. Id. at 535. In Majors, the Seventh Circuit found that having another person perform
an essential function of a job (in that case, having someone lift heavy objects over 20 pounds for
her) was unreasonable as a matter of law. Id. In this case, Plaintiff’s proposed accommodations,
whether shifting the duty for making all repairs observed during inspections to another employee
or having another employee lift heavy things and manipulate various tools during repairs, would
result in another employee having to do many of the essential functions of Plaintiff’s job. See
also Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912 (7th Cir. 1996) (“We cannot agree that
Cochrum would be performing the essential functions of his job with a helper.”). Although
Plaintiff argues that “there are certain jobs underneath the banner of machinist that a person is
assigned to,” which the Court takes to mean that Machinists perform a variety of duties
(including a few Plaintiff can do), Plaintiff does not argue that anyone employed by Metra does
only those tasks or that only doing those tasks would even be a full-time job. Thus, Plaintiff has
failed to meet his burden to show an accommodation that would allow him to do the essential
functions of his job and is reasonable on his face. 3
“Failure of the interactive process is not an independent basis for liability under the
ADA.” Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055, 1059 n.1 (7th Cir. 2014). Because
Plaintiff has not demonstrated any reasonable accommodation from Metra that would have
allowed him to perform the essential functions of his job, Metra’s failed attempts to place him in
a different position cannot be a basis for liability. Perhaps more importantly, Metra did attempt
to engage in an interactive process to accommodate Plaintiff – giving him light duty before his
surgery, offering to construct a ramp or stairs up to the engines, and then providing a case
manager to help him seek other positions. Plaintiff refused to take part in the process by refusing
to meet with the case manager. Compare id. at 1062 (employee returned all ADA-related
paperwork, employer never engaged in process to find accommodation or contacted doctor to
determine extent of disability). No reasonable juror could find on these facts that Metra failed to
engage in an interactive process of determining accommodations, since Plaintiff simply refused
to participate and then did not like the outcome. For these reasons, the Court grants the motion
for summary judgment as to Counts IV and V, the neck and shoulder disability discrimination
and failure to accommodate.
Plaintiff does not argue that Metra’s practice of assigning helpers to employees who
return from medical leave to help “refamiliarize” such employees with the job is relevant to this
issue, likely because putting someone with another employee long enough to retrain them is not
the same as providing someone else to do the employee’s job for an indefinite period of time.
Finally, Plaintiff claims Metra retaliated against him by placing him on unpaid leave. See
Compl. ¶ 66. Plaintiff claims he engaged in multiple types of protected activity: filing his
discrimination EEOC charge and FELA lawsuit over his hearing loss, requesting accommodation
for his shoulder injury, and filing his second EEOC charge. See id. at ¶ 65. Metra seems to
misconstrue the complaint and believe that the alleged retaliatory action is being “forced to
engage in irregular and demeaning jobs,” but that is alleged to be a retaliatory action only in
Count III (the hearing loss claim, which was dismissed for several reasons above). Compare
Def.’s Mem. at 10 with Compl. ¶¶ 48. 64. Plaintiff’s brief, which abruptly switches to the
retaliation claim towards the end of a section on whether a prima facie case of discrimination has
been established under the ADA, does not address this issue. Instead, he makes arguments only
about whether timing can “negatively affect the complaint” and that wiping down engine
blocks was in fact demeaning. See Pl.’s Resp. at 19-20.
To the extent that Plaintiff is in fact complaining of being assigned to wipe down engine
blocks as a job that was too easy and therefore demeaning, see id. at 20, this was only one task
among several that Plaintiff was assigned while on light duty after he injured his shoulder. See
DSOF ¶ 42. Cleaning engine blocks does appear to be a regular part of Plaintiff’s duties. For
example, Plaintiff stated that he requested hearing protection because “I was going to be inside
engine rooms all day cleaning engine blocks, and it’s very loud with the engine running and the
air popping.” 4 See Damptz Dep. 89:19-24, Mar. 2, 2016, Def.’s Ex. B. A coworker referred to
wiping down engine blocks as “light duty work” and denied that it was an undesirable job. See
Dresden Dep. 103:10-104:1, Mar. 16, 2016, Def.’s Ex. P. A supervisor also testified that wiping
This is a bit confusing, since Plaintiff later testified that he had “never seen it done
before” when he was asked to wipe down engine blocks in 2013. See Demptz Dep. 121:14-16.
down engine blocks was “light duty.” See Ratliff Dep. 65:16-19, Mar. 23, 2016, Def.’s Ex. R.
Contrary to Plaintiff’s assertion, there is no testimony in the record that wiping down engine
blocks was anything other than a normal part of light duty work, given to Plaintiff to
accommodate his medical restrictions.
This testimony supports two reasons why the engine block assignment cannot support a
retaliation claim. First, there is no evidence that Plaintiff was put on engine duty in retaliation for
protected activity. “[M]ere temporal proximity between the filing of the charge of discrimination
and the action alleged to have been taken in retaliation for that filing will rarely be sufficient in
and of itself to create a triable issue.” Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d
640, 644 (7th Cir. 2002). Rather, all the testimony is that Plaintiff was placed on light duty as a
result of his legitimate medical restrictions, restrictions which left him able to perform only a few
duties, which happened to include wiping down engine blocks. At this stage, Plaintiff must
present some evidence that the cause of his assignment was in fact retaliation. See id. at 643.
Second, in order to state a retaliation claim, Plaintiff must demonstrate an adverse action. See
Sitar v. Ind. DOT, 344 F.3d 720, 728 (7th Cir. 2003). “Not everything that makes an employee
unhappy is an actionable adverse action.” Drake v. 3M, 134 F.3d 878, 885 (7th Cir. 1998). An
adverse action “must materially alter the terms and conditions of employment.” Whittaker v. N.
Ill. Univ., 424 F.3d 640, 648 (7th Cir. 2005). Plaintiff has introduced no evidence suggesting the
changes in his duties materially altered the terms or conditions of his employment. He does not
introduce any evidence that he was paid or treated differently. He just performed the tasks he
was medically able to do, rather than attempting those he could not. This does not constitute an
Assuming that Plaintiff in fact meant to assert a retaliation claim based on Metra’s refusal
to allow him to return to work, that claim fails for many of the reasons stated for the previous
counts. For a plaintiff to survive a retaliation claim, he must show: “(1) he engaged in statutorily
protected activity; (2) he suffered a material adverse action; and (3) a causal link between the
two.” Hnin v. TOA (USA), LLC, 751 F.3d 499, 508 (7th Cir. 2014). Plaintiff has failed to present
any evidence of (or argument regarding) a causal link between his unpaid leave and his hearing
loss charge/lawsuit, his requests for accommodation, or his second EEOC charge. He has not
identified any comparable employees who had similar restrictions (or behaved similarly towards
their case managers) who were not placed on unpaid leave. More directly, the second EEOC
charge, filed in June 2015, could not have caused the unpaid leave that started almost a year
before in August 2014. See Compl. Ex. C. Suspicious timing does not typically create a causal
link, and the 11 months between the first EEOC charge and the beginning on his unpaid leave is
too great to generate a triable issue of fact on its own. See, e.g., Porter v. City of Chicago, 700
F.3d 944, 957-58 (7th Cir. 2012) (requests for accommodations 11-16 months prior to adverse
action insufficiently suspicious). Moreover, the Plaintiff has introduced no evidence that his
unpaid leave was suspicious at all, given his extensive work restrictions that did not allow him to
do his job and his unwillingness to work with his case manager to find another job. No
reasonable jury could conclude that Metra was somehow retaliating against him when there has
been no evidence of any sort of retaliatory intent. The motion for summary judgment on Count
VI must therefore be granted.
Plaintiff’s lawyers have failed to adduce and present sufficient evidence to sustain a jury
verdict in favor of their client on any of the claims he has asserted. Therefore, Metra’s motion for
summary judgment is granted and this case is dismissed.
John J. Tharp, Jr.
United States District Judge
Dated: September 5, 2017
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