Tyler v. Saldivar et al

Filing 39

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 11/14/2018: Defendants' motion to dismiss 28 is granted in part, denied in part. [For further detail see attached order.] Any requests to amend the pleadings must be m ade by 3/4/19. All fact discovery must be noticed in time to be completed by 4/15/19. Continued status hearing is set for 3/7/19 at 9:30 a.m. An agreed protective order may be submitted to [e-mail]. The parties may contact the courtroom deputy for a settlement referral. Notices mailed. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMOTHY TYLER,
Plaintiff,

No. 18 CV 1786

v.
THE NORTHEAST ILLINOIS REGIONAL
COMMUTER RAILROAD CORP. d/b/a
METRA, ROBERTO SALDIVAR, and
PAWEL SIKORA,

Judge Manish S. Shah

Defendants.
MEMORANDUM OPINION AND ORDER
Timothy Tyler worked as an electrician for The Northeast Illinois Regional
Commuter Railroad Corporation, more commonly known as Metra. He brings Title
VII and § 1983 claims against Metra and two of its employees, alleging that they
discriminated against and harassed him because of his race and retaliated against
him for engaging in protected activity. Defendants move to dismiss. For the reasons
discussed below, their motion is granted in part, denied in part.
I.

Legal Standards
A complaint may be dismissed pursuant to Rule 12(b)(6) if it fails to state a

claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). A plaintiff’s “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In other words, a “complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,

550 U.S. at 570). All reasonable inferences are drawn in favor of the non-movant.
Squires-Cannon v. Forest Preserve Dist. of Cook Cty., 897 F.3d 797, 802 (7th Cir.
2018).
II.

Background
Metra hired Tyler in July 2007 as a journeyman electrician in the Mechanical

Department. [2] ¶ 13.1 Throughout his employment Tyler consistently received
positive performance reviews. Id. ¶ 44. Despite telling Tyler at his orientation that
employees could transfer into any position for which they were qualified, in 2008,
Metra refused to let him transfer into an open position in the Electrical Engineering
Unit even though he was qualified. Id. ¶¶ 14–15. In March 2017, Metra investigated
allegations that Tyler had been “discourteous and quarrelsome” during a dispute with
another employee, Mike Alonzo. Id. ¶¶ 17–18. Defendant Roberto Saldivar served as
the hearing officer, and Tyler felt Saldivar ran the meeting unfairly because the
Metra witnesses were dishonest and because Saldivar did not tell Tyler he could have
his own witnesses available. Id. ¶¶ 17, 19. A month later, Tyler accused Alonzo of
being dishonest. Id. ¶ 20. Tyler was again investigated, and this investigation
resulted in a five-day suspension. Id. ¶ 21. Alonzo and another employee—both
white—got into an argument around the same time that ended in a cursing match,
and they were not disciplined. Id. ¶¶ 20–21.
In July 2017, Tyler called in sick because he had taken over-the-counter
medicine and did not think it would be safe to work. Id. ¶ 22. Tyler had enough sick

1

Bracketed numbers refer to entries on the district court docket.

2

time, but Saldivar told him he had to come in. Id. ¶ 23. Even though Tyler had already
clarified that it was an over-the-counter medication, he received three calls in 30
minutes asking what he had taken and whether it was prescribed. Id. ¶ 24. In August
2017, Tyler asked about a new cell-phone policy which he thought violated Illinois
law and Metra policy. Id. ¶ 25. When he added his concerns to a document before
signing onto the new policy, Saldivar became angry and extended his arm toward
Tyler. Id. ¶¶ 27–29. Tyler found this threatening and called the Metra police. Id. ¶ 29.
A Metra employee said to Tyler, “you don’t look like someone who gets intimated,”
which Tyler interpreted as having racial overtones. Id. ¶ 31. Metra subjected Tyler
to a third investigation based on this incident and gave him a ten-day suspension. Id.
¶¶ 25, 30. Tyler registered complaints with Metra Human Resources, Metra Equal
Employment Opportunity, and the International Brotherhood of Electrical Workers
Union. Id. ¶ 32. Tyler also submitted an EEOC charge dated October 2017, asserting,
I began employment with Respondent in or around July, 2007. My position is
Electrician. During my employment, I was subjected to different terms and
conditions of employment than non-Black employees, including but not limited
to, accusations and investigations, discipline, and five day suspension without
pay. I complained to Respondent to no avail. Subsequently, I have been
subjected to another investigation resulting in a ten day suspension without
pay. I believe that I have been discriminated against because of my race, Black,
and in retaliation for engaging in protected activity, in violation of Title VII of
the Civil Rights Act of 1964, as amended.
[2-1] at 3. In December, Tyler received a different position and Saldivar told him to
remove all his belongings by the end of the day saying, “I don’t care how or what you

3

have to do, just report to the new job location.” [2] ¶ 35.2 White employees were given
more time to relocate. Id. After Tyler returned to a lead electrician position in
January 2018, Metra failed to provide him with necessary tools, access to the system
to order parts, or a company credit card to purchase those items, each of which Metra
provided to other lead electricians. Id. ¶ 37.
III.

Analysis
Tyler filed this lawsuit seeking back pay and compensatory and punitive

damages3 stemming from pressure to relinquish his lead electrician status, and
therefore his seniority, from March 2015 through January 2018. See id. ¶ 9. Tyler
brings race-discrimination, harassment, and retaliation claims against Metra,
Saldivar, and Pawel Sikora (Saldivar’s manager).
A.

Race Discrimination and Harassment

Tyler brings race-discrimination and hostile-work-environment claims under
both Title VII and § 1983. He does not specify which conduct forms the basis for which
claim, but I read the complaint liberally, drawing all inferences in his favor.
1.

Title VII

Tyler directs his Title VII discrimination and harassment claims against
Metra, conceding in his brief that Sikora and Saldivar cannot be individually liable
under Title VII. See Passananti v. Cook Cty., 689 F.3d 655, 677 (7th Cir. 2012). To

Tyler did not specify the year, but given the context of the complaint it appears this was in
2017.
22

Tyler acknowledges that he cannot recover punitive damages against Metra. See 42 U.S.C.
§ 1981a(b)(1); 42 U.S.C. § 1983.
3

4

state a discrimination claim, Tyler need only plausibly allege that his employer took
an adverse employment action against him because of his race. See Volling v. Kurtz
Paramedic Servs., Inc., 840 F.3d 378, 382–83 (7th Cir. 2016). One way to suggest
discrimination is through the burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Khowaja v. Sessions, 893 F.3d 1010,
1014–1015 (7th Cir. 2018).
To state a prima-facie case using McDonnell Douglas, Tyler must show: (1) he
is a member of a protected class, (2) he met Metra’s legitimate expectations, (3) he
suffered an adverse employment action, and (4) another similarly situated individual
who was not in the protected class was treated more favorably. Khowaja, 893 F.3d at
1014–15. Tyler alleges that he is black and that he was meeting Metra’s legitimate
expectations, as evidenced by his consistently positive performance reviews. He
asserts that Metra twice suspended him, once for five days and another time for ten
days and that Metra did not investigate or suspend white employees for similar
conduct.4 A suspension without pay is a materially adverse employment action.
Whittaker v. N. Ill. Univ., 424 F.3d 640, 647 (7th Cir. 2005). Though the complaint
does not specify that the suspensions were without pay, in his EEOC charge Tyler
asserted they were, and so it is reasonable to infer Tyler suffered a materially adverse
action. See [2-1] at 3. Defendants argue that there are no facts indicating that any

Tyler does not argue that the 2008 failure to transfer is a discrete materially adverse action,
acknowledging that a claim based on that conduct would be time-barred. Instead he includes
that information “to display a complete picture of the continuing pattern of discrimination,
harassment and retaliation based on his race and engagement in protected activity.” [34] at
5.
4

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mistreatment is linked to Tyler’s race, but Tyler alleges he was treated differently
than non-black employees, and at the motion-to-dismiss stage that is enough. See
Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 634–35 (7th Cir. 2013). Tyler has
adequately pled a Title VII discrimination claim.
To prevail on a hostile work environment or harassment claim “a plaintiff must
demonstrate that: (1) he was subject to unwelcome harassment; (2) the harassment
was based on race . . . ; (3) the harassment was severe or pervasive to a degree that
altered the conditions of employment and created a hostile or abusive work
environment; and (4) there is a basis for employer liability.” Robinson v. Perales, 894
F.3d 818, 828 (7th Cir. 2018). Tyler alleges conduct which could amount to a hostilework-environment claim. He asserts that Metra subjected him to unwarranted
investigations, conducted those investigations unfairly, forced Tyler to come into
work when he called in sick, and threatened him when he complained about the cellphone policy. He also alleges that non-black employees were not subjected to similar
treatment and that he had complained to Metra about it, creating a basis for employer
liability (even assuming Saldivar was not a supervisor with the power to fire Tyler).
See id. at 826 (“[A]n employer is strictly liable for harassment by supervisory
personnel who have the power to hire, fire, or promote, and . . . is liable for
harassment by nonsupervisory employees only when it has actual or constructive
notice of the harassment.”).
Whether harassment is sufficiently severe or pervasive to constitute a hostile
work environment is generally a question of fact for the jury. Id. at 828. To be

6

actionable, it must be both objectively and subjectively hostile or abusive. Passananti,
689 F.3d at 667–68. Factors in assessing the severity of the conduct include its
frequency, whether it was physically threatening or humiliating, and whether it
unreasonably interfered with the employee’s work performance. Id. at 667. Tyler
points to repeated conduct that he perceived, on at least one occasion, to be physically
threatening and which interfered with his ability to perform his duties. These actions,
if true, could prove sufficiently severe to support a harassment claim.
Defendants argue that Tyler’s harassment claim is outside the scope of his
EEOC charge. A plaintiff can only bring claims that were originally included in the
EEOC charge or are reasonably related to those that were. Moore v. Vital Prods., Inc.,
641 F.3d 253, 256–257 (7th Cir. 2011). A “plaintiff need not allege in an EEOC charge
each and every fact that combines to form the basis of each claim in her complaint,”
but at a minimum the charge must “describe the same conduct and implicate the
same individuals” as the allegations in the complaint. Cheek v. W. & S. Life Ins. Co.,
31 F.3d 497, 500–501 (7th Cir. 1994). The test is whether there is a reasonable
relationship between the two, and whether the claim in the complaint could
reasonably have been “expected to grow out of an EEOC investigation of the
allegations in the charge.” Id. When the charge alleges a different legal theory than
the complaint, the two are not reasonably related unless the allegations in the
complaint can be reasonably inferred from the facts alleged in the charge. Id. at 503.
Though Tyler did not mention harassment or a hostile environment in his
EEOC charge, he asserted Metra subjected him to different terms and conditions of

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employment than non-black employees, including but not limited to, accusations and
investigations, discipline, and suspension. It is reasonable to conclude a harassment
claim would have grown out of those facts, and so his claim could fall within the scope
of the charge. Further factual and legal development may show that the harassing
conduct, as limited by the scope of the charge, is insufficient to give rise to a claim,
but at this stage dismissal on this basis is unwarranted.
Defendants also argue that the events that took place after Tyler filed his
EEOC charge—including Saldivar’s orders to immediately relocate to his new
position and the refusal to provide Tyler with necessary tools or a credit card to buy
them—fall outside the scope of the charge and are not actionable. Though this postEEOC charge conduct is outside the scope, it—like the 2008 denial of Tyler’s request
to transfer—can be relevant evidence for Tyler’s Title VII claims.
2.

Section 1983

Tyler brings § 1983 claims against Sikora and Saldivar in their individual and
official capacities and against Metra.5 To state a discrimination claim under § 1983,
Tyler must plead facts that plausibly suggest that he suffered disparate treatment
based on his race in violation of his constitutional rights. Williams v. Seniff, 342 F.3d
774, 787–88 (7th Cir. 2003). To prevail on his claim against Metra, Tyler must show
that a Metra policy or custom gave rise to the harm. Glisson v. Ind. Dep’t of Corr., 849

Though Tyler asserted in his complaint that he named Metra solely for indemnification
purposes, he argues that Metra is also liable on its own. Metra can be liable (as opposed to
being an indemnifier) only pursuant to Monell v. Dep’t of Soc. Servs. of City of New York, 436
U.S. 658 (1978).
5

8

F.3d 372, 379 (7th Cir. 2017). To do so, he can show that the action alleged to be
unconstitutional was implemented pursuant to an officially adopted policy statement
or decision or an informal custom or that it was made by a final decisionmaker. Id.
In his response, Tyler argues that “[d]iscovery will likely confirm what Plaintiff is
alleging here, that Metra has an ingrained, longstanding custom of inflicting
excessive discipline and different, less favorable terms and conditions of employment
on its black employees.” [34] at 7–8. But Tyler has not alleged any Metra policy or
custom in his complaint from which I could infer that Metra caused the asserted
constitutional violations, and so he has not stated a claim against Metra under
Monell. And because the claims against Sikora and Saldivar in their official capacities
are duplicative of those against Metra, they are also dismissed. See Hafer v. Melo,
502 U.S. 21, 25 (1991); Stanek v. St. Charles Comm. Unit Sch. Dist. #303, 783 F.3d
634, 644 (7th Cir. 2015) (affirming the district court’s dismissal of individual-schooldistrict employees in their official capacities because plaintiff had also sued the
district).
To state a claim against Sikora or Saldivar as individuals, Tyler must allege
they were personally involved in the alleged constitutional deprivations. Colbert v.
City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017). Saldivar, according to the
complaint, served as the hearing officer during at least one of Tyler’s investigations
and ran it in an unfavorable way. Tyler also alleges that Saldivar made Tyler come
in when he tried to take the day off and that he became incensed when Tyler raised
concerns about the cell-phone policy, causing Tyler to call Metra police and resulting

9

in another suspension. This is enough to allege Saldivar was personally involved. But
Tyler does not adequately allege Sikora’s personal involvement. Tyler asserts that
Sikora condoned Saldivar’s conduct. But aside from this conclusory allegation, which
need not be taken as true, nothing in Tyler’s complaint indicates that Sikora
personally discriminated against him, and so he has not stated a § 1983
discrimination claim against Sikora.
The elements needed to establish a hostile-work-environment claim under
§ 1983 are the same as those for Title VII. Alamo v. Bliss, 864 F.3d 541, 549 n. 16
(7th Cir. 2017). Tyler has alleged that Saldivar was personally responsible for
creating a hostile work environment. But he again has not alleged that Sikora was
personally involved. Tyler asserts that Sikora created a hostile retaliatory work
environment in response to Tyler’s complaints of mistreatment. But this allegation is
both conclusory and fails to assert that the harassment was motivated by Tyler’s race.
In sum, Tyler failed to allege § 1983 discrimination and hostile work environment
claims against Metra and Sikora, but because he stated claims against Saldivar,
Metra remains a defendant for indemnification purposes.
B.

Retaliation

Tyler also brings a Title VII retaliation claim against Metra and a § 1983
retaliation action against all three defendants.
1.

Title VII

To state a prima-facie case of retaliation, a plaintiff must allege: (1) that he
engaged in statutorily protected activity, (2) that he suffered an adverse action, and

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(3) that there is a causal link between the two. Baines v. Walgreen Co., 863 F.3d 656,
661 (7th Cir. 2017). A “‘cognizable expression of opposition’ to discriminatory
practices” qualifies as protected activity. Jaburek v. Foxx, 813 F.3d 626, 633 (7th Cir.
2016) (quoting O’Leary v. Accretive Health, Inc., 657 F.3d 625, 634 (7th Cir. 2011)).
Tyler does not detail the content of the complaints he made to Metra HR, the EEO,
or his union. But in his EEOC charge Tyler asserted that he had been treated
differently than non-black employees, had complained about that mistreatment to
Metra, and had suffered retaliation in response. [2-1] at 3. Reading the allegations in
his complaint along with his EEOC charge, it is reasonable to infer that he
complained about race discrimination and therefore engaged in Title VII-protected
activity. In the retaliation context, “a materially adverse action is one which might
well have dissuaded a reasonable worker from engaging in protected activity such as
making or supporting a charge of discrimination.” Robinson, 894 F.3d at 830. A
suspension without pay could dissuade a reasonable worker from engaging in
protected activity and so qualifies as materially adverse actions under the retaliation
standard. Asserting that he engaged in protected activity and subsequently suffered
a materially adverse action is enough to put defendants on notice about the nature of
Tyler’s retaliation claims and survive the motion to dismiss. See Tamayo v.
Blagojevich, 526 F.3d 1074, 1085 (7th Cir. 2008).
2.

Section 1983

Tyler alleges a § 1983 retaliation claim but does not identify the source of the
underlying constitutional violation. “[T]he right to be free from retaliation may be

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vindicated under the First Amendment or Title VII, but not the equal protection
clause.” Boyd v. Ill. State Police, 384 F.3d 888, 898 (7th Cir. 2004). In the First
Amendment context a public employee must allege that his employer retaliated
against him in response to his constitutionally protected speech. Forgue v. City of
Chicago, 873 F.3d 962, 966 (7th Cir. 2017). A public employee’s speech is
constitutionally protected only if it: (1) was made as a private citizen; and (2)
addressed a matter of public concern. Id. Internal complaints about misconduct, made
pursuant to official duties, are not protected. Id. at 967. A matter of “public concern
is something that is a subject of legitimate news interest; that is, a subject of general
interest and of value and concern to the public at the time of publication.” City of San
Diego, Cal. v. Roe, 543 U.S. 77, 83–84 (2004). When determining whether speech
addresses a matter of public concern a court must consider the content, form, and
context of the speech to determine whether the objective was to bring wrongdoing to
light or to further some purely private interest. Connick v. Myers, 461 U.S. 138, 147–
48 (1983); Kubiak v. City of Chicago, 810 F.3d 476, 482–83 (7th Cir. 2016).
Tyler has not alleged that he engaged in constitutionally protected speech. “[I]f
the objective of the speech—as determined by content, form, and context—is simply
to further a purely personalized grievance, then the speech does not involve a matter
of public concern.” Kristofek v. Vill. of Orland Hills, 712 F.3d 979, 986 (7th Cir. 2013).
Nothing in his complaint indicates that he engaged in speech motivated by anything
other than alleviating his own grievance, and so he has not alleged a § 1983
retaliation claim.

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C.

The Railway Labor Act

Defendants argue that the Railway Labor Act governs the parties’ collective
bargaining agreement and that arbitration is the exclusive forum for resolving “minor
disputes,” or those “growing out of grievances or out of the interpretation or
application of agreements concerning rates of pay, rules, or working conditions.” See
45 U.S.C. § 153(i); Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 254–56 (1994).
Generally, claims brought pursuant to a collective bargaining agreement must be
resolved in arbitration, whereas “claims based on rights with an independent basis
may be litigated as usual.” Carlson v. CSX Transp., Inc., 758 F.3d 819, 832 (7th Cir.
2014). An exception to this rule exists where “a nominally independent claim can be
‘conclusively resolved’ by interpreting a collective bargaining agreement because the
claim’s success depends entirely on the agreement’s meaning.” Id. (quoting Brown v.
Ill. Central. R.R. Co., 254 F.3d 654, 660–61 (7th Cir. 2001)). Similarly, a federal
antidiscrimination claim, though nominally based on an independent right, must be
resolved in arbitration if the plaintiff’s claim turns on whether he is entitled to some
right created by the collective bargaining agreement. See Carlson, 758 F.3d at 833
(discussing Tice v. Am. Airlines, Inc., 288 F.3d 313, 316–17 (7th Cir. 2002)). A claim
is not barred, however, simply because the challenged action is arguably justified by
the collective bargaining agreement. Carlson, 758 F.3d at 833.
Though Tyler asks for back pay and alleges he lost his seniority status because
of defendants’ discriminatory and retaliatory actions, he does not base his claims on
either of those entitlements, nor any other created by his collective bargaining

13

agreement. Tyler alleges that defendants threatened him, subjected him to unfair
investigations, and suspended him without pay. These actions, if motivated by race
or retaliation, are unlawful in any employment situation—it is not the collective
bargaining agreement that gives rise to Tyler’s claims. Nor would interpreting that
agreement

conclusively

resolve

whether

defendants’

actions

constitute

discrimination, harassment, or retaliation. The Railway Labor Act does not require
that Tyler vindicate his claims through arbitration.6
IV.

Conclusion
Defendants’ motion to dismiss [28] is granted in part, denied in part.

ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: November 14, 2018

In one line in his complaint, Tyler alleges a state-law claim for intentional infliction of
emotional harm. [2] ¶ 10. He does not acknowledge defendants’ argument that there are no
factual allegations to support his claim and so has forfeited any argument in response. See
Alito v. Town of Lisbon, 651 F.3d 715, 719 n. 1 (7th Cir. 2011). The conduct alleged in the
complaint is not “so extreme as to go beyond all possible bounds of decency and be regarded
as intolerable in a civilized community.” See Dixon v. Cty. of Cook, 819 F.3d 343, 351 (7th Cir.
2016). What is alleged is workplace discord, but nothing that crosses the line into intentional
infliction of emotional distress.
6

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