Cain v. Illinois Central Railroad Co. et al
Filing
70
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 3/2/2018: Defendants' motions for summary judgment 41 and 49 are granted. Enter judgment and terminate civil case. [For further detail see attached order.] Notices mailed. (psm, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EARL J. CAIN,
Plaintiff,
No. 15 CV 8324
v.
ILLINOIS CENTRAL RAILROAD, PHILIP
YOURICH, BRIAN TRACY, KEVIN
GEBHARDT, and JAMES DANIELWICZ,
Judge Manish S. Shah
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Earl Cain worked as an electrician for defendant Illinois Central
Railroad. After receiving a letter of caution in 2012 that he felt was unfair, Cain
filed a complaint with the EEOC. Two years later, Illinois Central fired Cain for
sleeping on the job. Cain brought this action against Illinois Central and his former
supervisors alleging both race discrimination and retaliation in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981.
Defendants move for summary judgment. For the following reasons, defendants’
motions are granted.
I.
Legal Standards
Summary judgment is appropriate if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). A genuine dispute as to any material fact exists
if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
party seeking summary judgment has the burden of establishing that there is no
genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). In determining whether a genuine issue of material fact exists, the court
must construe all facts and reasonable inferences in the light most favorable to the
nonmoving party. See King v. Ford Motor Co., 872 F.3d 833, 837 (7th Cir. 2017).
II.
Background
Cain worked for Illinois Central, a rail carrier, as an electrician in their
mechanical maintenance department. [62] ¶¶ 1, 3, 5.1 Prior to his employment at
Illinois Central, Cain worked as an electrician with the Elgin, Joliet and Eastern
Railway. Id. ¶ 4. Cain started working with the Elgin, Joliet and Eastern Railway
in November 1997, and Illinois Central purchased the railway around 2009. Id. As
an electrician, Cain tested locomotives and performed inspections, repairs, and
electrical work. Id. ¶ 5.
Cain was a unionized employee and subject to a collective bargaining
agreement, and discipline was administered through the due process provisions of
that agreement. Id. ¶ 6. Pursuant to the agreement, Illinois Central would conduct
an investigative hearing before assessing discipline. Id. ¶ 7. A hearing officer
Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings, except in the case of
citations to depositions, which use the deposition transcript’s original page number. The
facts are largely taken from plaintiff’s response to defendants’ LR 56.1 statement of facts,
[62], and defendants’ response to plaintiff’s LR 56.1 statement of additional facts, [68],
where the asserted fact and accompanying response are set forth in the same document.
Danielwicz did not respond to plaintiff’s statement of additional facts, but I read his reply
brief to assert that he joined in the other defendants’ responses.
1
2
conducted the hearing and a court reporter transcribed it. Id. ¶ 8. Based on the facts
elicited during the hearing, Illinois Central decided whether the employee had
violated a company rule, and if so, the appropriate level of discipline. Id.
Alternatively, an employee could request to waive an investigative hearing by
accepting responsibility and receive discipline at a manager’s discretion. Id. ¶ 7.
The Illinois Central decisionmaker had discretion in assigning a penalty and
generally considered the severity of the offense, whether the employee had accepted
a waiver, and the employee’s disciplinary history. See [62-4] 93:6–95:10. Coaching
and letters of caution were not disciplinary events and so not subject to the same
process. [62] ¶ 6.
At the relevant time, Cain reported to Kevin Gebhardt, the Manager of the
Woodcrest Shop. Id. ¶ 3. Gebhardt, in turn, reported to Philip Yourich, Assistant
Chief-Mechanical. Id. Brian Tracy, Assistant Mechanical Manager, also reported to
Yourich. Id. Yourich reported to James Danielwicz, Vice President of the
Mechanical Department, who oversaw 3,500 employees throughout the United
States. Id.; [68] ¶ 2. Danielwicz was the ultimate authority in the disciplinary
process, and he reviewed all discipline resulting in time off or discharge. [68] ¶ 3.
Cain was disciplined for various conduct throughout his employment at both
railroads. During his time at the Elgin, Joliet and Eastern Railway, he had a poor
attendance record, received demerits for negligence on the job and safety violations,
and was dismissed for fabricating a safety observation—though he was reinstated a
year later. [62] ¶ 9, 16–18, 21–23.
3
At Illinois Central, Cain received two “needs development” performance
reviews. Id. ¶¶ 10, 14. Illinois Central conducted a formal investigation hearing to
determine whether Cain had violated any rules when he failed to promptly report to
his supervisor after returning from an offsite road call and was observed sitting in a
company truck for twenty minutes in the parking lot. Id. ¶ 15. Cain did not receive
any discipline based on this incident. Id. He also received a letter of reprimand after
admitting to using a personal cell phone during work hours, in violation of Illinois
Central policy, and Illinois Central conducted an investigation of his suspected
abuse of FMLA leave, though Cain was not disciplined based on the investigation.
Id. ¶ 24. Cain received two letters of caution, one saying he had failed to be at his
assigned work station (though Cain says this was not true) and another for failing
to wear a helmet (conduct Cain admits to). Id. ¶¶ 12–13. In November 2012, Cain
filed an EEOC charge, claiming that the letter of caution he had received for failing
to be at his work station was unfair. Id. ¶ 25; [44-1] at 86:3–18. His charge named
two supervisors who are not parties to this lawsuit. [62] ¶ 25.
On November 8, 2014, Cain was supposed to inspecting a locomotive. Id.
¶ 30. Dick Adreon, Cain’s supervisor who provided him with day-to-day directions,
says he walked by the locomotive Cain was supposed to be inspecting and saw him
reclining in the back of a cab. Id. ¶¶ 30, 32. Adreon called Gebhardt, the shop
manager, and told him he had seen Cain reclined in the cab with his head back,
sleeping. Id. ¶ 33. Adreon then walked from the tracks to the foreman’s office, a 15–
20 minute walk, to meet Gebhardt, and the two of them walked back to the
4
locomotive. Id. ¶ 34. Adreon stopped at the front corner of the locomotive while
Gebhardt looked in the side window. Id. ¶ 35.2
The parties dispute whether Adreon and Gebhardt were able to see through
the locomotive’s tinted windows. Cain says that because the side windows are so
tinted it is impossible to see inside, and because the cab is too high off the ground to
see in through the front window, Adreon and Gebhardt could not see into the
locomotive at all, and testimony to the contrary is false. See ¶ 32; [62-2] at 7.
Defendants do not dispute that the side windows are tinted so that one cannot make
out fine details, but they say the side windows are not completely opaque and that
the front and rear windows are not tinted. Id. ¶ 35. Adreon said he could not see
inside the locomotive very well, but both Adreon and Gebhardt said they could see
enough to tell that Cain had remained in the same position and was not moving.
[62] ¶¶ 34–35; [62-5] at 12:1–7. The parties further dispute whether Cain had just
one foot up or two and whether his head was slumped back. [62] ¶ 32. Cain claims
he was awake, sitting in one of the seats with his right foot up to tie his shoe while
he worked on the locomotive’s radio. Id. ¶ 31. The parties agree Gebhardt then
walked around to the back door of the cab and opened it. Id. ¶ 36. But they disagree
about whether Cain jumped up in response—Cain says he saw the supervisors
approaching and opened the window to talk to them. Id.; [68] ¶ 6. Cain asked what
they needed and Gebhardt responded, “[y]ou were sleeping. We’re going to have an
investigation.” [62] ¶ 36. Cain denied that he had been sleeping. Id. Viewing these
This statement of fact is missing a paragraph number, but appears directly after ¶ 35 in
[62].
2
5
facts in the light most favorable to Cain, Adreon and Gebhardt were unable to see
inside the locomotive and did not know whether Cain was asleep, but accused him
of sleeping anyway.
Sleeping on the job is a violation of Illinois Central rules. Id. ¶ 38. Rule 20 of
the Mechanical/Material Department Employees General Regulations provides that
“[e]mployees must not sleep while on duty. Employees slouched or reclined with
their eyes closed or concealed will be in violation of this rule.” [62-7] at 2. Rule 20
also prohibits engaging in other recreational activities while working, such as
reading, playing games, and using electronic devices. Id. Cain received a copy of the
rules during his employment. [62] ¶ 39. Illinois Central managers interpret the rule
to apply when an employee is in slouched position and not working. Id. ¶ 40.
After his encounter with Cain, Gebhardt determined that Illinois Central
should hold a formal hearing to investigate the incident, and Cain received a notice
of the investigation, which was scheduled to occur on November 20, 2014. Id. ¶¶ 43–
44. Cain did not request a hearing waiver. Id. ¶ 45. Only Adreon testified against
Cain at the hearing. [68] ¶ 8. Adreon testified, “[a]s we w[ere] walking up towards
the engine you could see Mr. Cain’s feet in the window propped up on the cab heater
and there was no movement. We looked in the window. The windows were tinted so
you couldn’t really see him in there real well.” [62-5] at 11:21–12:3. Adreon said he
was not able to see Cain’s eyes. Id. at 27:3–6. Gebhardt did not testify at the
hearing, even though it took place a few feet from his office. [68] ¶ 7. Gebhardt said
he did not know whether Cain was sleeping, he just knew he was in a reclined
6
position with his feet propped up. [62-6] at 48:15–23, 64:13–24. Cain was present for
the investigative hearing, represented by his union, and able to ask all the
questions he wanted. [62] ¶¶ 45–46. He believes the investigation was fair and
impartial. Id. ¶ 46. During the investigation, Cain stated that he believed that
Gebhardt was targeting him because he had made a complaint on a safety hotline
two weeks earlier. Id. ¶ 52.
After the investigation, Yourich read the transcript and concluded that Cain
had violated Rule 20. Id. ¶ 47. In determining the appropriate discipline, Yourich
considered Cain’s disciplinary history, which he learned about from a Labor
Relations employee who helped obtain and summarize Cain’s disciplinary record
and from a conversation with Gebhardt. Id. ¶ 48; [62-4] at 30:11–20. When asked
whether Yourich ever asked for his opinion as to Cain’s work history, Gebhardt gave
contradictory responses. See [62-6] at 86:14–18, 87:20–23. Gebhardt also said he did
not make a recommendation as to whether Cain should have been discharged. Id. at
86:19–21. Yourich, however, stated that he relied on Gebhardt’s opinion that Cain
should be discharged when deciding Cain’s punishment. [62-4] at 84:17–85:2.
Yourich also considered records from Cain’s previous employer. Id. at 28:8–
30:10. In explaining Illinois Central’s disciplinary procedure, Danielwicz stated that
if a company, like the Elgin, Joliet and Eastern Railway, used a demerit system—
whereby demerits dropped off an employee’s record after a certain period of time—
those demerits should not be considered in assigning subsequent discipline. [62-3]
at 54:9–21. In a demerit system, the incidents of misconduct would remain on the
7
employee’s file even though the demerits themselves were expunged. Id. at 63:12–
64:10. Illinois Central, unlike Elgin, Joliet and Eastern Railway, did not use a
demerits-based system. See id. at 54:9–16.
Based on Cain’s employment record as a whole, including his overall work
performance, his disciplinary history (including misconduct that did not result in
formal discipline), Adreon and Gebhardt’s reports, and the seriousness of the
violation, Yourich determined that Cain should be dismissed. [62] ¶ 47; [62-4] at
27:2–31:18. Yourich consulted Danielwicz, who reviewed Cain’s disciplinary record
and the hearing transcript before approving the decision. [62] ¶ 49. Brian Tracy
delivered a letter to Cain stating that his employment was terminated. Id. ¶ 51.
Cain complained to Human Resources that his termination was unfair and
motivated by his race. Id. ¶ 53. He also filed a union grievance, and the Public Law
Board upheld the termination, noting that sleeping on the job had long been a
serious offense and that Cain had a poor disciplinary record. Id. ¶ 54.
Other Illinois Central employees have been disciplined for violating Rule 20.
Tim and Jonathan Diaz, two Hispanic employees, were caught sleeping, admitted to
their violations, and waived their investigative hearings. Id. ¶ 58–59. Jonathan
Diaz received a 60-day actual suspension and a 30-day deferred suspension
(meaning he would serve another 30 days if he committed additional misconduct or
policy violations in the next year). Id. ¶ 59. Tim Diaz received a 30-day actual
suspension and a 30-day deferred suspension. Id. Neither Diaz brother had any
prior discipline on his record. Id. Other employees, including at least three white
8
employees, were terminated for violating Rule 20 between 2013 and 2014. Id. ¶ 60.
Warren Winker, a white employee who Danielwicz referred to as a “constant rule
violator,” was caught by a manager not a party to this action for sleeping in the
1970s and was not fired. [68] ¶ 32; [62-8] at 53:5–20. Winker also remembers seeing
one black and one white employee sleeping, but is unsure whether either ever got
caught. [62-8] at 55:10–24, 73:6–23.3 Some black employees who violated Rule 20
received discipline short of dismissal. Christopher Dean was observed sitting in a
cab in violation of the rule and received a nondisciplinary letter of caution. [62]
¶ 61. In 2015, Ebony Woods put her head down in a women’s locker room and
another employee who saw her concluded she was sleeping, left, and returned to the
locker room with Tracy, who told Woods she could not sleep at work. Id. ¶ 62. Woods
received a nondisciplinary letter of caution. Id.
Cain asserts that Illinois Central disciplined black employees more harshly
than white employees for comparable and less serious violations. George Groll, a
white employee, side-swiped a locomotive. Id. ¶ 64; [68] ¶ 28. Groll admitted
responsibility, waived investigation and accepted a 30-day suspension, and had no
prior history of discipline. Id. In another incident, while driving a company car and
talking on his cell phone, Groll hit another employee’s car. Id. This incident does not
appear on Groll’s file. Id. Gebhardt brought a heath shield—a component of a
weapon—onto Illinois Central premises after his work shift had ended. [62] ¶ 66. A
Cain asserts that, according to Winker, a black employee was fired for sleeping on the job
in the 1990s. See [68] ¶ 32. However, the record shows that Winker’s only knowledge of this
incident was from “word of mouth,” so this statement is impermissible hearsay. [62-8] at
50:2–22.
3
9
white electrician who worked in the same facility as Cain miswired a generator
causing losses of thousands of dollars and was not discharged. [68] ¶ 26. Another
white electrician supervisor who also worked in the same facility falsified a federal
document and was discharged but later brought back to work. Id. ¶ 27.
Dean, who is black, was a laborer for Illinois Central before being terminated
for exceeding three absences in ninety days. [62] ¶ 68; [62-10] at 44:3–8. One of
those absences was for the Fourth of July. [62] ¶ 68. Dean found another employee
to cover his shift, but failed to get prior approval by a manager. Id. The parties
dispute whether manager approval was required. Id. Another one of his absences
was from a day he missed work due to a winter storm. [62-10] at 44:11–45:4. Dean
says that white employees who missed work that day were given an excused
absence. Id. Jeff Brown, who is black, worked as a sheet metal technician and was
discharged for threatening a supervisor, though Cain asserts that the statements
were not actually threatening. [62] ¶ 73.
Woods, who is black, was terminated because she failed to wear proper eye
safety equipment while driving a forklift—she was wearing glasses but not side
shields, which are also required. Id. ¶ 69. Woods was rehired and again violated
Illinois Central rules by driving a forklift into an office window. Id. ¶ 71. She
admitted to that violation, waived an investigation, and received a 30-day actual
suspension. Id. Yourich observed Winker violating the protective eyewear rule on at
least two occasions. [68] ¶ 31. The first time Yourich gave Winker a verbal warning
10
because Winker had a clean record,4 and the second time Yourich caught him,
Winker received a 30-day suspension because it was the third incident on his record
(he had been disciplined another time in the interim). [62-4] at 131:9–138:10; [62]
¶ 65. Yourich, Tracey, Gebhardt, and Danielwicz have all failed to wear proper
eyewear at times. [68] ¶ 34.
A white employee under Yourich and Danielwicz’s supervision hung a noose
in an Illinois Central facility in Memphis. [62-4] at 119:2–121:2. Yourich
recommended dismissal, but Danielwicz overruled him. Id. at 120:19–121:2. During
his career at Illinois Central, Winker heard racist comments, including use of
hateful epithets. [68] ¶ 35. Winker also heard Tracy say that a new Jewel grocery
store might bring blacks into the neighborhood. Id. Dean heard racist comments at
Illinois Central, as well. Id. ¶ 36.5 No one at Illinois Central ever said anything
racially discriminatory or harassing to Cain. [44-1] at 99:7–10.
Cain, who served as a union steward, observed that white electricians
received more favorable and complex job assignments than black electricians,
There is no evidence that Yourich was aware that Winker had been caught sleeping in the
1970s or of any other undocumented rule violations.
4
Cain asserts that an engineer who worked for Illinois Central in a different location and
department was terminated in 2012 because of his race. [62] ¶ 74. Cain’s only knowledge
about this incident is from reading about allegations against Illinois Central in the news
and on the internet. Id. Cain also asserts that in 2009, the Elgin, Joliet and Eastern
Railway settled a lawsuit dealing with racial discrimination. Id. ¶ 75. Cain knew of one
worker who was part of the lawsuit, but otherwise does not know any details of the lawsuit
and does not know if it involved allegations against Yourich, Tracy, or Gebhardt. Id. Cain
has no personal knowledge about these incidents and so his assertions based on them are
inadmissible.
5
11
meaning black electricians had fewer opportunities to develop their skills and
receive overtime. [68] ¶¶ 19–21.6 Winker also asserted that black employees
received more repetitive and burdensome work than white employees. [62-8] at
129:2–23. As an example, Winker pointed to Tom Fitzgerald, a white electrician
who received most troubleshooting assignments, though Winker said it was possible
Fitzgerald got those assignments because he was the best electrician. Id. at 129:24–
130:23. Woods agreed that black employees did not have the same opportunities to
advance as white employees and said that they were held to a higher standard. [629] at 77:5–21.
Cain filed a complaint with the EEOC on December 11, 2014, alleging that
his discharge from Illinois Central was retaliation against him for his 2012 EEOC
complaint and that Illinois Central had discriminated against him based on his
race. [62] ¶ 76. At the time he approved Cain’s discharge, Danielwicz was not aware
of Cain’s 2012 EEOC charge. [57] ¶ 77. The EEOC dismissed the 2014 charge on
July 22, 2015. [62] ¶ 76.
III.
Analysis
Cain alleges that defendants fired him because of his race and as retaliation
for submitting a complaint to the EEOC in violation of Title VII and § 1981.
Defendants argue no reasonable jury could find for Cain on either claim.
Defendants argue that plaintiff’s declaration, where he articulates these observations, is
self-serving, contradictory, and should be stricken. While self-serving affidavits without
factual support are insufficient to defeat a motion for summary judgment, see Palmer v.
Marion Cnty., 327 F.3d 588, 596 (7th Cir. 2003), Cain’s declaration contains factual
assertions, many of which are based on his personal knowledge. Striking the declaration as
a whole is inappropriate.
6
12
A.
Race Discrimination
To prevail, a plaintiff alleging race-based employment discrimination must
present evidence that, as a whole, allows a reasonable factfinder to conclude that
the plaintiff’s race caused the adverse employment action. Ortiz v. Werner Enters.,
Inc., 834 F.3d 760, 765 (7th Cir. 2016). Evidence should not be treated differently
based on whether it is direct or indirect. Id. A court should assess all evidence
cumulatively to determine whether a reasonable factfinder could find that the
adverse act was caused by the plaintiff’s protected characteristic. See David v. Bd.
of Trustees of Comm. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017). Because
defendants presented their arguments using the McDonnell Douglas burdenshifting framework—which is a “means of organizing, presenting, and assessing
circumstantial evidence”—I begin by reviewing the evidence in those terms. Id.
1.
McDonnell Douglas
Under the McDonnell Douglas burden-shifting analysis, a plaintiff must first
establish a prima facie case of discrimination by demonstrating that (1) he is a
member of a protected class; (2) he was meeting the defendant’s legitimate
performance expectations; (3) he suffered an adverse employment action; and (4) he
was treated less favorably than similarly situated individuals outside of the
protected class. Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012). If the
plaintiff establishes a prima facie case, then the burden shifts to the defendants to
provide a legitimate justification for the adverse action. Id. If the defendants
provide a nondiscriminatory justification, then the burden shifts back to the
13
plaintiff to show that the defendants’ justification is pretextual. Id. Defendants
argue that Cain has failed to establish a prima facie case because he has not shown
that he was meeting defendants’ legitimate expectations or that he was treated less
favorably than similarly situated individuals.
Cain provides no support for either the contention that he was meeting
defendants’ expectations, or that those expectations were illegitimate. The record is
clear that Cain had a long history of misconduct and discipline dating back to his
time at the Elgin, Joliet and Eastern Railway. Cain admits he received negative
performance reviews, letters of caution, and a letter of reprimand. He suggests that
it was improper or suspicious for Illinois Central to rely on instances of misconduct
that did not result in formal discipline or for which the corresponding demerits had
been expunged, but provides no justifications for these propositions. As support,
Cain relies solely on Danielwicz’s comment that in a demerits-based disciplinary
system it would be inappropriate to rely on demerits that had been wiped from an
employee’s record. The demerits Cain had received from his previous employer were
no longer on his record, but nothing prohibited Yourich from considering the
underlying misconduct associated with those demerits, which remained on Cain’s
record, when determining Cain’s discipline. Cain points to no examples of other
employees whose similar backgrounds were not considered which would allow a jury
to infer that relying on these incidents was improper. And further, defendants
provide ample other examples where Cain’s behavior at Illinois Central failed to
meet legitimate expectations, and Cain provides no evidence to dispute these
14
assertions, nor does he argue that those expectations were illegitimate. Based on
the evidence in the record, Cain cannot show he met Illinois Central’s legitimate
expectations.
Cain also fails to provide examples of similarly situated nonblack individuals
who were treated more favorably. The comparator must be similarly situated in all
material respects. Greer v. Bd. of Educ. of City of Chicago, 267 F.3d 723, 728 (7th
Cir. 2001). “In the usual case a plaintiff must at least show that the comparators (1)
dealt with the same supervisor, (2) were subject to the same standards, and (3)
engaged in similar conduct without such differentiating or mitigating circumstances
as would distinguish their conduct or the employer’s treatment of them.” Coleman v.
Donahoe, 667 F.3d 835, 847 (7th Cir. 2012) (internal quotation marks omitted).
As comparators, Cain points to nonblack employees who were caught sleeping
and not discharged, including the Diaz brothers, Winker, and another white
employee who Winker says he saw sleeping. None of these employees is sufficiently
similar to Cain to serve as a comparator. Cain does not provide any information
about who supervised the Diaz brothers (aside from Danielwicz, who serves as the
ultimate authority on discipline for all employees). Nor does Cain assert whether
the brothers were subject to the same standards as he was. Even assuming the
same decisionmakers disciplined Cain and the Diaz brothers and that they were
subject to the same standards, neither brother had any prior discipline on his record
(and Cain points to no prior misconduct that was missing from their records, but
should have been considered) and both admitted to their violations and waived their
15
hearings, which justifies their less severe punishments. Winker dealt with a
different supervisor, many years prior, and it is unclear whether Rule 20 was in
place at the time. There is no evidence that the other employee Winker saw sleeping
was ever caught, which disqualifies him as a potential comparator. As further
support for their argument that Cain has failed to establish a prima facie case,
defendants point out that some black employees who violated Rule 20 were not
terminated, and some nonblack employees who violated Rule 20 were terminated.
Based on this evidence, the similarly situated requirement has not been met and
Cain has failed to establish a prima facie case which would allow him to defeat
summary judgment using the McDonnell Douglas framework.
2.
Cumulative Review
Cain argues that a jury could conclude that race was the reason for his
termination because Illinois Central treats black employees worse than nonblack
employees, he was falsely accused of being asleep, and his prior misconduct should
not have been considered.
Cain provides evidence of past behavior and comments of Illinois Central
employees, which can be used to demonstrate animus when attributed to someone
who provided input into the adverse employment decision. Hasan v. Foley &
Lardner, LLP, 552 F.3d 520, 528–29 (7th Cir. 2008) (“The recency of discriminatory
comments, together with who made the comments and how extreme those
comments were, is relevant to whether they help to build a total picture of
discrimination.”); see also Taylor v. Village of Dolton, Illinois, No. 17-1097, 2017 WL
16
6311687 (7th Cir. Dec. 11, 2017) (unpublished and non-precedential). Against that
backdrop of racial inequality, Cain argues that the suspicious circumstances
surrounding his own termination—that there is no evidence that he violated Rule
20, that defendants inappropriately relied on his disciplinary history that had been
expunged, and that the individual defendants offered shifting and contradictory
explanations about their decisionmaking—are sufficient evidence to allow a
reasonable factfinder to determine that his termination was based on his race. But
considering the evidence as a whole, no reasonable jury could find in Cain’s favor.
Cain attempts to demonstrate a culture of inequality at Illinois Central by
alleging that black employees were disciplined more harshly and given fewer
opportunities to advance than nonblack employees. The evidence he produces to
show that black employees were punished more harshly for equal or less serious
violations, however, is insufficient. As discussed above, the examples of Rule 20
violations Cain relies on lack important details and fail to demonstrate that any
unequal treatment was not justified. The other examples of unequal discipline he
puts forth are similarly insufficient. Cain generally asserts that Illinois Central
treated white employees favorably by excusing their absences and letting them off
the hook for severe rule violations, such as getting into a car accident in a company
vehicle and falsifying a federal document. But Cain fails to identify the relevant
supervisors involved in these incidents that could link this conduct to his own
treatment. And without evidence that black employees were treated differently in
similar situations, these incidents do not substantiate Cain’s claim that employees
17
were punished differently based on their race. Aside from discipline, Cain also
alleges that white employees received more complicated and favorable assignments
than black employees, relying on his own observations, along with those of Woods
and Winker. Other than general assertions, however, Cain offers no example where
a qualified black employee was overlooked for an assignment in favor of a lessqualified nonblack employee.
Cain then argues that, in light of the racial animus allegedly in place at
Illinois Central, the suspicious circumstances of his violation are enough to allow a
jury to find that defendants’ proffered justifications were pretextual and that his
race was the real cause of his termination. To establish that an employer’s proffered
justifications for an adverse action are pretextual, an employee must put “forth
evidence suggesting that the employer itself did not believe the proffered reasons for
termination.” Burks v. Wisconsin Dept. of Transp., 464 F.3d 744, 754 (7th Cir.
2006). Whether the employer’s actions were mistaken or foolish is not at issue as
long as the employer honestly believed those reasons. Id. Viewing the facts in the
light most favorable to Cain, Adreon and Gebhardt were unable to see inside the
locomotive.7 But though it may have been ill considered to conclude that Cain was
sleeping under these circumstances, there is no evidence that the key
Cain asserts that Danielwicz has admitted that a supervisor must see an employee’s eyes
to determine that he is sleeping. [68] ¶ 11. In the cited testimony, Danielwicz agrees it is a
fair statement that “[a]n employee is considered to be sleeping if they’re—they have to have
two things, right, slouched or reclined, and their eyes closed or concealed?” [62-3] at 74:3–
13. He does not say that a supervisor must see an employee’s eyes closed to conclude that
the employee is sleeping.
7
18
decisionmakers—Yourich and Danielwicz, who relied on Adreon’s testimony—did
not genuinely believe that Cain was asleep. As discussed above, Cain has provided
insufficient evidence that black employees in general were treated less favorably
than nonblack employees that could be imputed onto the decisionmakers
responsible for Cain’s punishment. Without more, even assuming that Adreon and
Gebhardt lied about seeing Cain reclined inside the locomotive, there is no
indication that they lied because of Cain’s race. Cain has not shown that either
Adreon or Gebhardt used racial epithets or treated black employees unfairly in the
past, which combined with these somewhat suspicious circumstances may have
been sufficient to allow a reasonable jury to find in Cain’s favor.8 Like Adreon and
Gebhardt, there is no evidence that Yourich harbored any racial animus. Cain does
present evidence that suggests Danielwicz’s racial animus—his lax punishment of
an employee who hung a noose at work—but because Cain identifies no animus on
behalf of Adreon, Gebhardt, or Yourich, and because Danielwicz merely affirmed
their findings and recommendation, the anecdote suggesting Danielwicz’s racial
animus, which was not directed at Cain, is insufficient to show that the
decisionmakers terminated Cain because of his race.
That
Yourich
and
Gebhardt
offered
inconsistent
accounts
of
the
decisionmaking process and considered demerits that had been expunged from
Cain’s record and misconduct that had not resulted in discipline—even when
Cain’s assertions that Tracy and other unnamed employees made racist comments in the
past are irrelevant because there is no evidence that these individuals provided input into
the decision to fire Cain. See Hasan, 552 F.3d at 528.
8
19
considered in conjunction with the evidence discussed above—is insufficient to allow
a reasonable jury to find in Cain’s favor. Shifting and inconsistent explanations
create a reasonable inference that a justification is pretextual. Hitchcock v. Angel
Corps., Inc., 718 F.3d 733, 738 (7th Cir. 2013). But here, the supervisors’ accounts
are consistent and neither changed his story over time. They disagree about
whether Gebhardt agreed termination was the proper punishment, but this
discrepancy is not an inconsistency about the actual decision and its basis—Cain’s
sleeping. Cain’s arguments that defendants inappropriately relied on demerits he
received from his previous employer and for misconduct for which he was not
disciplined similarly fall short of demonstrating pretext. As discussed, Cain
provides no evidence that relying on either of these pieces of information was out of
the ordinary and no examples where Illinois Central supervisors disciplined
nonblack employees without considering similar information.
In sum, without evidence that the decisionmakers responsible for Cain’s
termination harbored any racial animus, the evidence surrounding Cain’s
termination is insufficient to show that any of the individual defendants accused
him, decided to terminate him, or approved that decision because of his race. Cain’s
evidence of other instances of inequality is not linked to the individual defendants
and fails to demonstrate a pervasively hostile workplace which would allow a
reasonable factfinder to conclude that the decisionmakers in Cain’s situation acted
out of racial animus.
20
3.
Individual liability
The same standard applies to discrimination and retaliation claims under
§ 1981 and Title VII. Baines v. Walgreen Co., 863 F.3d 656, 661 (7th Cir. 2017).
Section 1981—unlike Title VII, which authorizes suits against only the employer as
an entity—authorizes individual liability when the “individual defendants caused or
participated” in the adverse employment action. Smith v. Bray, 681 F.3d 888, 897–
899 (7th Cir. 2012) (overruled on other grounds by Ortiz, 834 F.3d at 764). In the
§ 1983 context—which uses an analogous standard, see id.,—a defendant personally
participated if the relevant conduct “occur[red] at [his] direction or with [his]
knowledge and consent.” Hildebrandt v. Illinois Dept. of Nat. Res., 347 F.3d 1014,
1039 (7th Cir. 2003) (quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.
1995)). To recover against an individual, a plaintiff must also prove that the
individual defendant acted because of the plaintiff’s race. Smith, 681 F.3d at 899–
902. In other words, in addition to proving that he was fired because of his race, to
prevail against the individual defendants Cain must demonstrate that each caused
or participated in his termination and that Cain’s race was a “substantial or
motivating factor” in that individual’s decision to terminate Cain. See id. at 900.
Cain does not directly address defendants’ argument that he failed to identify
individual bases of liability. The record, however, illustrates each defendant’s role
in Cain’s termination. Gebhardt observed the conduct that served as the grounds for
Cain’s dismissal, contributed information about Cain’s disciplinary history to the
investigation, failed to testify at the hearing, and gave his opinion that Cain should
21
be fired (according to Yourich). Yourich recommended that Cain be terminated
based on the outcome of the hearing, Cain’s disciplinary history, and his past work
performance. Danielwicz approved Yourich’s recommendation, and Tracy delivered
the letter.
Though there is some evidence of Tracy’s racial animus (the comment about a
Jewel bringing black people into the neighborhood), there is no evidence suggesting
that Tracy participated in the decision to terminate Cain. Yourich and Gebhardt
participated in the decision and both arguably caused Cain’s termination, but there
is no evidence that either harbored any racial animus that would allow a reasonable
jury to find that Cain’s race motivated their decisions. Danielwicz reviewed the
hearing transcript and Cain’s record and approved the decision, but the only
evidence of Danielwicz’s racial animus is that in a separate incident he overruled a
recommendation of termination for an employee who hung a noose in a different
facility. While that incident is relevant, as discussed above, it is not enough to
reasonably conclude that Danielwicz’s approval of Yourich’s recommendation was
motivated by Cain’s race as opposed to a genuine belief that Cain had broken a rule
that warranted his termination in light of his history of discipline. Cain has failed
to establish that any of the individual defendants acted with the requisite intent to
be liable under § 1981.
B.
Retaliation
To survive summary judgment on his retaliation claim, Cain must offer
evidence of “(1) a statutorily protected activity; (2) a materially adverse action taken
22
by the employer; and (3) a causal connection between the two.” Baines, 863 F.3d at
661 (quoting Humphries v. CBOCS West, Inc., 474 F.3d 387, 403–04 (7th Cir.
2007)). Defendants argue that Cain has failed to demonstrate a causal connection
between his 2012 EEOC complaint and his termination two years later. A causal
connection exists if the defendant would not have taken the adverse action but for
the plaintiff’s protected activity. Id. A two-year gap is too long to establish a
connection based on temporal proximity. See Tomanovich v. City of Indianapolis,
457 F.3d 656, 665 (7th Cir. 2006) (“[A] temporal connection of four months fail[s] to
establish a causal connection between a protected activity and an adverse action.”).
Nor has Cain shown that any of the decisionmakers responsible for his termination
were aware of his 2012 EEOC complaint, which did not name any of the individual
defendants. Cain does not address the defendants’ argument that he has failed to
establish a causal connection between his protected activity and the alleged
retaliation and so has waived any argument in response. See Nichols v. Michigan
City Plant Planning Dept., 755 F.3d 594, 600 (7th Cir. 2014) (“The non-moving
party waives any arguments that were not raised in its response to the moving
party’s motion for summary judgment.”). Cain has failed to demonstrate a causal
connection between his protected activity and his termination.
Because no reasonable jury could conclude that Cain’s termination was based
either on his race or on his prior protected activity, defendants’ motions for
summary judgment are granted.
23
IV.
Conclusion
Defendants’ motions for summary judgment [41] and [49] are granted. Enter
judgment and terminate civil case.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: March 2, 2018
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?