Johnson v. Soo Line Railroad Company
Filing
328
MEMORANDUM Opinion and Order: This Court denies Defendant's motion for reconsideration 302 , denies Plaintiff's motion for reconsideration 307 , denies Defendant's motion for certification 304 , denies as moot Plaintiff's motion to strike 314 , and denies Plaintiff's motion for sanctions 317 . Signed by the Honorable Mary M. Rowland on 1/17/2023. (See attached Order for further detail.) Mailed notice. (dm, )
Case: 1:17-cv-07828 Document #: 328 Filed: 01/17/23 Page 1 of 12 PageID #:4855
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Dalonno C. Johnson,
Plaintiff,
Case No. 17-cv-7828
v.
Judge Mary M. Rowland
Soo Line Railroad Company, d/b/a
Canadian Pacific Railroad,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Dalonno Johnson claims that his former employer, Defendant Soo
Line Railroad Company d/b/a Canadian Pacific Railroad, violated Title VII of the Civil
Rights Act of 1964 and 42 U.S.C. § 1981 by terminating him due to his race, subjecting
him to harassment based on race, and retaliating against him for complaining about
racism in the workplace. In February 2022, the Court, ruling on Defendant’s motion
for summary judgment, granted summary judgment on all but Plaintiff’s Section
1981 claim based on a hostile work environment. [298].
Before the Court are the following motions: (1) Defendant’s motion for
reconsideration [302]; (2) Defendant’s motion for certificate of appealability [304]; (3)
Plaintiff’s motion for reconsideration [307]; (4) Plaintiff’s motion to strike [314]; and
(5) Plaintiff’s motion for sanctions [317]. For the reasons explained below, the Court
denies each motion.
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I.
Background
The Court presumes familiarity with its summary judgment opinion [298] and
thus briefly only revisits the procedural history in this case. Plaintiff originally
brought Title VII and Section 1983 claims for color, national origin, and race
discrimination, and for retaliation.
The Court granted summary judgment to Defendant on Plaintiff’s Title VII
claims as time-barred. This Court also granted summary judgment to Defendant on
Plaintiff’s Section 1981 claim based on the theory that Defendant terminated him
because of his race. On this theory, this Court found that Plaintiff could not
demonstrate a prima facie case under McDonnell Douglas v. Green, 411 U.S. 792
(1973) because Plaintiff did not identify a similarly-situated comparator who received
more favorable treatment and because Defendant offered a non-pretextual, legitimate
reason for terminating Plaintiff. The Court also found that under Ortiz v. Werner
Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016), the evidence as a whole was
insufficient to create a question of fact as to whether Defendant terminated Plaintiff
because of his race.
This Court additionally granted summary judgment to Defendant on Plaintiff’s
retaliation claim because Plaintiff did not offer sufficient evidence that he engaged in
a statutorily protected activity nor that any complaints he made to his employer
caused his termination. Finally, this Court denied summary judgment on Plaintiff’s
hostile work environment theory under Section 1981, finding that questions of fact
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remained as to whether Plaintiff experienced severe or pervasive harassment while
working for Defendant.
II.
Motions to Reconsider
The Court first considers the parties’ competing motions for reconsideration.
To prevail on a motion to reconsider, the movant must establish “a manifest error of
law or fact or present newly discovered evidence.” Vesely v. Armslist LLC, 762 F.3d
661, 666 (7th Cir. 2014) (quoting Boyd v. Tornier, Inc., 656 F.3d 487, 492 (7th Cir.
2011)); Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008). “A manifest error is
not demonstrated by the disappointment” of the losing party; instead, there must be
a showing of the “wholesale disregard, misapplication, or failure to recognize
controlling precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)
(quoting Sedrak v. Callahan, 987 F. Supp. 1063, 1069 (N.D. Ill. 1997)). Consequently,
in light of this “heavy” burden, motions to reconsider are rarely permitted and
generally disfavored. Patrick v. City of Chicago, 103 F. Supp. 3d 907, 911−12 (N.D.
Ill. 2015).
A.
Defendant’s Motion for Reconsideration
Defendant argues that this Court erred in denying summary judgment on
Plaintiff’s hostile work environment claim. [303]. Specifically, Defendant argues the
evidence—which consisted of four remarks—failed to demonstrate that Defendant
experienced severe or pervasive harassment. Defendant cites various Seventh Circuit
cases, advocating that evidence of isolated and offhand comments do not withstand
summary judgment.
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This Court, however, already considered these cases, but determined, based on
its review of Seventh Circuit jurisprudence, that Plaintiff pointed to sufficient
evidence to submit whether his harassment was “severe or pervasive” to the jury.
Specifically, Plaintiff’s evidence included: (1) a manager calling him a “cold, wet little
brown turd”; (2) the same manager calling Plaintiff and another black coworker “lazy”
when they were on breaks; (3) a crew foreman telling him and another coworker they
“look like little monkeys working”; and (4) the same crew foreman calling Mexicans a
“disgrace to humanity.” [298] at 31. The first and third of these incidents involve
racially toxic language directed at Plaintiff from Defendant’s managers. Courts treat
a “supervisor’s use of racially toxic language in the workplace as much more serious
than a co-worker’s.” Gates v. Board of Educ. of the City of Chicago, 916 F.3d 631, 638
(7th Cir. 2019). This is “particularly true when supervisors address these derogatory
and humiliating remarks directly to the employees in question.” Id. A reasonable jury
could find that these two comments alone created a hostile work environment.
Defendant argues that this Court erred by considering Plaintiff’s “self-serving
supplemental declaration” that claimed that the crew foreman directed the
“monkeys” remark to his coworker and to him because Plaintiff provided no such
testimony at his January 2020 deposition. [303] at 7. Not so. The term self-serving
must “not be used to denigrate perfectly admissible evidence through which a party
tries to present its side of the story at summary judgment.” Hill v. Tangherlini, 724
F.3d 965, 967 (7th Cir. 2013). Plaintiff properly presented his evidence through his
declaration to supplement the record, and the Court properly considered such
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evidence. The sham affidavit doctrine does not apply here, contrary to Defendant’s
contention, see [303] at 7, because Plaintiff did not testify inconsistently in his
deposition. See James v. Hale, 959 F.3d 307, 316 (7th Cir. 2020) (“In this circuit
the sham-affidavit rule
prohibits
a
party
from
submitting
an affidavit that
contradicts the party’s prior deposition or other sworn testimony.”). As Defendant
itself concedes, Plaintiff testified in his deposition that he believed the comment was
about him, in addition to the coworker to which the comment was directed. [303] at 7
n.2. And even if the “monkeys” comment were not directed at him, that would not
entitle Defendant to summary judgment. See Johnson v. Advoc. Health & Hosps.
Corp., 892 F.3d 887, 902 (7th Cir. 2018) (“Comments made to non-plaintiff co-workers
carry less weight in the evaluation of a hostile environment claim, but they are not
irrelevant.”).
Defendant also argues that the Court failed to consider that it put forth “record
facts and argument” establishing that Plaintiff’s hostile work environment claim
failed for other reasons. Specifically, Defendant argues that the Court did not
consider that some of the remarks were not racial in nature. [303] at 10. The Court
did consider the argument and rejected it because at least two of the comments—the
one involving “monkeys” and the “little brown turd” were clearly racial in nature.
Defendant also argues that the Court failed to address another element of Plaintiff’s
hostile work environment claim—a basis for employer liability. [303] at 10–11; see
[298] at 30 (listing an element of a hostile work environment claim as “basis for
employer liability”). The Court did not address this argument because Defendant did
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not raise it as a basis for summary judgment. See [250] at 10–12. A party
“waives arguments that it does not present in its initial motion for summary
judgment or in its response.” Bankdirect Cap. Fin., LLC v. Cap. Premium Fin., Inc.,
No. 15-CV-10340, 2017 WL 1196917, at *5 (N.D. Ill. Mar. 31, 2017) (quoting Anderson
v. City of Wood Dale, No. 93 C 425, 2001 WL 477158, at *4 (N.D. Ill. May 3, 2001)).
And reconsideration “is not an appropriate forum for . . . arguing matters that could
have been heard during the pendency of the previous motion.” Caisse Nationale de
Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996).
The Court likewise rejects Defendant’s belated attempt to dismiss the hostile
work environment claim as time-barred. See [303] at 14–15. This is a new legal theory
that Defendant could have, but did not, raise during the pendency of its motion for
summary judgment. A motion to reconsider is not the appropriate vehicle to introduce
new legal arguments. Caisse, 90 F.3d at 1270.
For these reasons, the Court denies Defendant’s motion for reconsideration
[302].
B.
Plaintiff’s Motion for Reconsideration
Plaintiff also moves for reconsideration of certain aspects of this Court’s
summary judgment order. [307]. None of Plaintiff’s arguments are appropriate for
reconsideration.
Plaintiff argues that this Court erred by finding that conductors Richard Vock
and Will Copeland were not similarly situated comparators. [308] at 4–6. Plaintiff
complains that this Court ignored that Defendant required assistant signalmen like
him and conductors like Vock and Copeland to be familiar with the General Code of
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Operating Rules (GCOR), and thus, all three gentlemen were subject to the same
performance standards. The Court found, however, that Vock and Copeland
nonetheless were not proper comparators because unlike Plaintiff, they were not
subject to the BRS CBA pursuant to which Defendant terminated Plaintiff. [298] at
24. Plaintiff also contends that this Court ignored that Robert Johnson acted as the
ultimate decisionmaker as to all three workers’ disciplinary actions. [308] at 6, 7–8.
Yet there is no evidence of this fact. Rather, the undisputed evidence shows that
Justin Meyer made the ultimate decision to terminate Plaintiff. See [298] at 26; [254]
¶ 3. Nor did this Court commit error in deeming Brian Kopca an improper
comparator, as he resigned prior to his disciplinary hearing; he was not terminated
like Plaintiff. See [298] at 24–25. Plaintiff offers no new argument regarding Kopca
that would warrant reconsideration.
Plaintiff also takes issue with this Court’s ruling that there is no evidence that
Defendant did not honestly believe that Plaintiff violated Section 27(e) of the BRS
CBA. [308] at 8. Plaintiff points to evidence that two witnesses at his CBA hearing
testified that they believed Plaintiff’s conduct did not violate Rule 27(e). Id.; see [282]
¶ 22. This evidence does not suggest discriminatory motive, only (at most) that
Defendant ultimately may have made an error in interpreting Rule 27(e). This Court
reiterates, however, that Defendant’s construction of Section 27(e), however,
wrongful, is not illegal and does not alone suggest that Defendant’s termination
process “was used to hide racial discrimination.” [298] at 27. Nor does Defendant’s
purported failure to follow a progressive discipline policy qualify as a basis for
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reconsideration. Contra [308] at 10–11. As explained in the summary judgment
opinion, although Plaintiff argued that Defendant’s failure to follow a progressive
discipline policy demonstrated pretext, the only evidence of such a policy in the record
was of a policy that was not in effect at the time Defendant terminated Plaintiff. [298]
at 28. Plaintiff offers no basis for this Court to reconsider its findings on the policy.
This Court also finds no error with its opinion dismissing Plaintiff’s retaliation
claim. As discussed in its summary judgment order, among other things, Plaintiff
failed to raise a triable issue on the element of causation because there is no evidence
that Meyer (the ultimate termination decisionmaker) had any knowledge of Plaintiff’s
alleged complaints of race discrimination, and rather, Defendant possessed
legitimate reasons to take adverse action—Plaintiff’s unexcused absences. [298] at
36, 40. Plaintiff’s disagreements with this Court’s fact and evidentiary findings again
are not appropriate for reconsideration. Plaintiff complains, for instance, that the
Court disregarded evidence of a voicemail transcript that proves that his supervisor,
Edward Harwick, knew about his complaints of race discrimination. [308] at 9–10.
But the Court properly disregarded the voicemail transcript because Plaintiff had not
authenticated it under Federal Rule of Evidence 901. [298] at 37–38. In moving to
reconsider, Plaintiff still does not attempt to authenticate the recording, promising
merely that he will do so at trial. [308] at 15. This remains insufficient to establish
that the transcript is what it purports to be. This Court also explained that even if
the transcript sufficed to show that Harwick knew of Plaintiff’s race discrimination
complaints, Plaintiff nonetheless failed to demonstrate that Harwick’s involvement
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in Plaintiff’s termination could establish retaliation under a cat’s paw theory. [298]
at 38–39. There is no evidence that Harwick himself harbored illegal animus toward
Plaintiff, nor evidence that Harwick’s input proximately caused Plaintiff’s
termination. Id. Plaintiff raises no legal or factual error that changes these
conclusions.
For these reasons, this Court denies Plaintiff’s motion for reconsideration
[307].
III.
Defendant’s Motion to Certify an Interlocutory Appeal
This Court next considers Defendant’s motion to certify an issue for
interlocutory appeal [304]. Defendant moves to certify the following question: Can
(three or) four isolated remarks—one of which was undisputedly non-racial in nature,
two others of which were not directed at Plaintiff—be legally sufficient to raise a
genuine material question of fact to withstand summary judgment on the severe or
pervasive element of a hostile work environment claim? [305] at 2.
This Court denies Defendant’s motion. 28 U.S.C. § 1292(b) permits an
interlocutory appeal only when four criteria are present: “there must be a question
of law, it must be controlling, it must be contestable, and its resolution must promise
to speed up the litigation.” Ahrenholz v. Bd. of Trustees of Univ. of Ill., 219 F.3d 674,
675 (7th Cir. 2000). Unless “all these criteria are satisfied,” the Court cannot certify
an order for immediate appeal. Id. There is no question of law here. In this context,
“question of law” means a “pure question of law, something the court of appeals could
decide quickly and cleanly without having to study the record.” Ahrenholz, 219 F.3d
at 676–77. Generally, a pure question of law goes to the meaning of a statutory or
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constitutional provision, regulation, or common law doctrine. Feit Elec. Co., Inc. v.
CFL Techs., LLC, No. 13-CV-9339, 2021 WL 4061741, at *1 (N.D. Ill. Sept. 7, 2021)
(citing Ahrenholz, 219 F.3d at 676). Defendant fails to present a pure question of law.
Rather, Defendant’s proposed certified question asks whether, in light of the
evidentiary record, Plaintiff had presented enough facts to submit his hostile work
environment claim to the jury. This would require the court of appeals to study the
record; it is not something the court “could decide quickly and cleanly.” Ahrenholz,
219 F.3d at 676–77. Indeed, the denial of summary judgment is “a paradigmatic
example of an interlocutory order that normally is not appealable.” Ahrenholz, 219
F.3d at 676. Because Defendant does not present a pure question of law, the Court
denies Defendant’s motion to certify an interlocutory appeal [304].
IV.
Plaintiff’s Motion to Strike
Plaintiff moves to strike, or in the alternative, to submit additional argument
directed at Defendant’s attempt, through its motion for reconsideration, to dismiss
Plaintiff’s remaining Section 1981 claim on statute of limitations grounds. [314]. As
discussed above, the Court finds Defendant’s Section 1981 timeliness arguments
improper for the purposes of a motion for reconsideration, as Defendant had failed to
raise them during the pendency of the motion for summary judgment. Therefore, this
Court denies as moot Plaintiff’s motion to strike [314].
V.
Plaintiff’s Motion for Sanctions
Plaintiff moves for sanctions, arguing that Defendant failed to produce a
progressive discipline policy in effect at the time of Plaintiff’s termination. [317].
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In the Court’s summary judgment order, the Court acknowledged that Plaintiff
argued that the Court could infer pretext based on Defendant’s failure to follow its
own progressive discipline policy, which Plaintiff identified as the “Positive Behavior
& Performance Development Policy.” [298] at 28. The Court concluded, however, that
the record showed that the policy Plaintiff identified was discontinued by March 17,
2013 and thus was not in effect at the time Defendant terminated Plaintiff in
December 2013. Id.; see also [278]; [295] ¶ 5. Given this fact, the Court concluded that
Defendant’s failure to follow a policy not in effect could not raise an inference of
pretext. [298] at 28.
In moving for sanctions, Plaintiff claims that he recently came into possession
of a document—never produced by Defendant—reflecting a progressive discipline
policy that was in effect in December 2013, when Defendant terminated him. [317] at
8–9. Plaintiff complains that Defendant acted in bad faith by refusing to turn over
this policy during discovery. But Defendant’s position has always been that
“discipline policies are not applicable in this case because -- as has been repeatedly
and consistently stated during the regular discovery period (now long passed) -- Mr.
Johnson’s employment ended as a result of the self-executing provision under Article
27(e) of the BRS Collective Bargaining Agreement under which he was working at
the time.” [277] at 4.
And, even after Plaintiff moved to compel progressive discipline policies, the
Magistrate Judge denied this request. Indeed, after discovery closed in August 2021,
Plaintiff moved to extend discovery and compel Defendant to produce written policies
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that existed from January 1, 2013 through the present concerning progressive
discipline or informal or formal coaching. [276] at 4–5. The Magistrate Judge denied
this motion, emphasizing that discovery was closed and that Plaintiff had never
specifically asked for production of such documents when discovery was ongoing,
despite many opportunities to do so. [278]. The Magistrate Judge also gave Plaintiff
the opportunity to appeal his order, stating: “If more discovery is to be ordered in this
case now, it will have to be by the district judge on a timely objection to this order.”
Id. Plaintiff never availed himself of the opportunity to object to the Magistrate
Judge’s order and to request additional discovery from this Court. Plaintiff therefore
cannot now complain that Defendant’s refusal to produce such documents is
sanctionable. This Court denies Plaintiff’s motion for sanctions [317].
VI.
Conclusion
For the reasons explained above, this Court denies Defendant’s motion for
reconsideration [302], denies Plaintiff’s motion for reconsideration [307], denies
Defendant’s motion for certification [304], denies as moot Plaintiff’s motion to strike
[314], and denies Plaintiff’s motion for sanctions [317].
E N T E R:
Dated: January 17, 2023
MARY M. ROWLAND
United States District Judge
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