Thomas v. Zonder et al
Filing
93
OPINION AND ORDER: GRANTING IN PART and DENYING IN PART 77 RULE 56 MOTION to Strike by Defendant City of Michigan City Indiana; GRANTING 62 MOTION for Summary Judgment by Defendant City of Michigan City Indiana. The clerk shall ENTER FINAL JUDGMENT in favor of the City of Michigan City and against Vincent Thomas. The clerk shall treat this civil action as TERMINATED. All further settings in this action are hereby VACATED. Signed by Chief Judge Philip P Simon on 12/16/2015. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
VINCENT THOMAS,
Plaintiff,
v.
CITY OF MICHIGAN CITY,
Defendant.
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CAUSE NO. 3:14-cv-164-PPS
OPINION AND ORDER
Vincent Thomas was fired from his job as a bus driver for the City of Michigan
City after a video confirmed that he failed to stop at railroad tracks in violation of both
Indiana law and Federal regulations. Thomas, who is African-American, says that he
was the victim of race discrimination and that was the real reason for his termination.
This case in now before me on the City’s summary judgment motion. Because there is
no evidence that the City’s decision to terminate Mr. Thomas’ employment was
prompted by racial animus, the City’s summary judgment motion [DE 62] will be
GRANTED.
Background
Thomas was hired by the City as a bus driver in 2007. [DE 63-1 at 7.] He
remained employed in that capacity until his termination was upheld by the Board of
Works in March 2013. [Id.] The City terminated Thomas after an incident that occurred
on January 26, 2013. [Id. at 4.] On that date, while driving a bus during his work hours,
Thomas crossed railroad tracks. [Id. at 4; DE 63-2 at 3, 14 (video recording of bus
manually filed with the Court).] Thomas’ bus was equipped with a video camera
recording the view through the windshield of the bus. The recording shows that
Thomas slowed down as he approached the railroad crossing, but he did not come to a
complete stop. [DE 63-2 at 14.] Both Indiana law and federal regulations – at I.C. § 921-8-39 and 49 C.F.R. § 392.10(a), respectively – require that a driver of a commercial
vehicle come to a stop between fifty and fifteen feet before crossing a railroad track.
Thomas testified that he was familiar with the rules regarding crossing railroad tracks.
[DE 63-6 at 4.]
The importance of adhering to this safety regulation was made clear to Michigan
City bus drivers roughly three weeks prior to Thomas’ railroad track incident. Rob
Strader, the Transit Director for the City of Michigan City, sent a memorandum to all
bus drivers noting that stopping at railroad crossings is mandated by Federal law and
attaching the Department of Transportation (“DOT”) Regulations. [DE 63-2 at 5.]
Strader wrote that the DOT Regulations provide a specific exception for one crossing,
which is controlled by a stop light, but that all other crossings of railroad tracks needed
to be conducted in accordance with the DOT regulations and the Indiana Commercial
Driver’s License manual. [Id.] The memorandum cautioned that “failure to perform the
correct procedure at railroad crossings will not be tolerated. Everyone needs to
understand that if you are found in violation of this federal regulation it will be deemed
a violation so severe that termination can be expected.” [Id. (emphasis added)] Thomas
confirmed that he received the memorandum. [DE 63-3 at 4.]
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Thomas was suspended pending his discharge five days after the railroad
crossing incident. [DE 63-2 at 3-4.] The Employee Corrective Action Notice notifying
Thomas of his suspension stated that not only did he fail to stop at the railroad tracks,
but there were several other violations seen in the video from that day including
speeding, following at an unsafe distance, and an unsafe lane change. [Id.] In addition,
it noted that Thomas was suspended three times in the previous twelve months for
failure to follow instructions. [Id.] (Thomas’ December 2012 suspension was later
overturned by the Michigan City Board of Works. [DE 63-2 at 7.]) Thomas filed a
grievance in response to the Corrective Action Notice; he claimed that Michigan City
was unfairly targeting him because of another grievance he had pending. [Id. at 6.]
Thomas’ termination was ultimately upheld by the Michigan City Board of Works. [DE
76-2 at 3-4.]
Discussion
Summary judgment is proper “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 about a material fact exists only “if the
evidence is such that a reasonable jury could return a verdict for the non-moving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A nonmoving party like
Thomas is not entitled to the benefit of “inferences that are supported by only
speculation or conjecture.” Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)
(citations and quotations omitted).
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There are two ways for a plaintiff to overcome a summary judgment in a Title
VII case – the familiar indirect and direct methods of proof. Silverman v. Board of
Education of Chicago, 637 F.3d 729, 733 (7th Cir. 2011). But recently, several judges on the
Seventh Circuit have expressed some reservations about whether these clunky
constructs still serve any useful purpose. See, e.g., Coleman v. Donahue, 667 F.3d 835, 86263 (7th Cir. 2012) (Wood, J., concurring); Hitchcock v. Angels Corp., Inc., 718 F.3d 733, 737
(7th Cir. 2013); see also Smith v. Chicago Transit Auth., No. 14-2622, 2015 WL 7423824, at
*4 (7th Cir. Nov. 23, 2015). The various multi-factor tests that have developed over the
years in both indirect and direct method of proof cases are frequently a maze that often
cloud the decision-making process rather than enhance it. As Judge Wood described it
in her concurrence in Coleman, a much simpler way to proceed would be to ask the
following question when confronted with a summary judgment motion: has the
plaintiff presented evidence that she is a member of a protected class and suffered an
adverse employment action that a rational juror could conclude was taken against her
on account of her protected class and not for a non-discriminatory reason? Coleman, 667
F.3d at 863.
There is much to be said for Judge Wood’s simpler approach to the question. But
no matter what formula is used — the indirect method, the direct method, or Judge
Wood’s formulation — Thomas cannot prevail in this matter. The simple fact of the
matter is that the City has presented admissible evidence that Thomas was terminated
for reasons having nothing to do with his race, and Thomas has presented me no
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admissible evidence to the contrary. Whether Thomas was treated fairly or unfairly or
whether it was good business practice to have terminated him under these conditions
are questions that are neither here nor there. This is because, as it has often been said,
federal judges do not sit as super-personnel departments reviewing decisions of
employers. See, e.g., O’Reagan v. Arbitration Forums, Inc., 246 F.3d 975, 984 (7th Cir.
2001). The sole question is whether the decision was based on some type of
discriminatory animus. And there simply is no evidence that it was in this case.
Before diving into the merits, there is a preliminary matter that needs to be
addressed relating to the affidavit that Thomas has submitted with his response to the
summary judgment motion. In the affidavit, Thomas lists several alleged examples of
racial animus in the workplace including that he “heard” that Strader’s computer
contained racist materials, and that someone else had “heard” from another person that
Strader made a statement to someone that he wasn’t going to hire an African-American
bus driver applicant as long as there was a white applicant applying. Thomas also said
in his affidavit that there were more disciplinary write-ups on white employees than
African-American employees. [DE 76 at 2-3.]
The City has moved to strike Thomas’ declaration arguing that it is based
entirely on his opinions, hearsay, speculation, and rumors. [DE 78 at 1.] The City is
correct that much of Thomas’ declaration contains self-serving statements that are not
based on personal knowledge and are without factual support in the record. For
example:
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•
“My present co-worker Vail Anderson say[sic] that she heard the superintendent
discuss with the director of the Street Department David Farmer that there was
numerous racist material on [Strader’s] computer.” [DE 76-1 at 4.]
•
“It was said that the Director made a statement that he wasn’t going to hire a
black applicant Shona as long as there was a while applicant applying. Shona
filed a lawsuit with the EEOC and the Civil Liberty Commission. After the
Director Robert Strater[sic] was fired, the City hired Shona to stop her suit. It is
still on file and shut her up. No investigation was done.” [Id.]
•
“Used to be City Council Woman Viginia Martin said that use to be my Union
Stewart[sic], now Director of the Michigan City Transit Department said she
heard the Director Robert Strater[sic] tell a white employee to stop bumping stop
signs, meaning he didn’t stop, no write ups.” [Id. at 5.]
•
He makes an unsupported assertion that African-American were written up
more often. [Id.]
•
He makes an unsupported assertion that two days after he was fired, Rosetta
Loggins left passengers at a high school and the incident was not investigated.
[Id.]
This evidence is either hearsay or not based on Thomas’ personal knowledge. And “[a]
party may not rely on inadmissible hearsay to oppose a motion for summary
judgment.” Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009); see also Bombard v. Fort
Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996) (same).
There is of course nothing wrong with relying on self-serving statements to
defeat summary judgment. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003). But the
statements must be based on admissible evidence. It is one thing for Thomas to swear
that he heard Strader make racists comments. That type of evidence might be “selfserving” but it would surely be admissible to help defeat summary judgment. (It
would be an admission of a party opponent in a representative capacity. See Fed. R.
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Evid. 801(d)(2)(A)). But a close reading of Thomas’ affidavit indicates that he is isn’t
testifying to something he heard from Strader. Rather, he is relaying what others told
him that Strader may have said. This is hearsay and not admissible. For these reasons,
I will grant in part and deny in part the City’s motion to strike the declaration [DE 76-1],
striking the portions discussed above and the like that are merely hearsay, speculation,
and rumors and, therefore, inadmissible and insufficient to resist the grant of summary
judgment. But because there are admissible portions of the declaration, I do not believe
that it was filed in bad faith, and the City’s request for attorney fees will be denied.1
In addressing the merits, I’ll start with the indirect method: In order to establish
a prima facie case of intentional discrimination under the indirect method Thomas must
demonstrate that 1) he is a member of a protected class; 2) his employment performance
was satisfactory; 3) he experienced an adverse employment action; and 4) he was
treated less favorably than one or more similarly situated employees outside of his
protected class. See Burks v. Wis. Dep’t of Transp., 464 F.3d 744, 750-51 (7th Cir. 2006). If
he establishes a prima facie case, a presumption of discrimination is raised, and the
burden shifts to the City to proffer a legitimate, nondiscriminatory reason for its action.
The City also moves to strike Thomas’ Exhibit 3 [DE 76-3] to his response, which
contains a copy of the Michigan City Board of Works meeting minutes from March 4,
2013 as well as a copy of an article from the New Dispatch dated March 19, 2013.
Thomas conceded that the article on page two of the exhibit should be stricken. [DE 82
at 9.] The City’s Motion to Strike is therefore granted as to that page, but denied as to
the meeting minutes because the City designated the same exact exhibit to their Motion
for Summary Judgment. [DE 63-2 at 7.] I note the irony of the City’s argument that
Thomas is essentially wasting time by designating these documents, when the City
designated the meeting minutes before Thomas.
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Id. at 751. If the City proffers a legitimate, nondiscriminatory reason for its action, the
burden shifts back to Thomas to produce evidence that demonstrates the City’s
proffered reason is either not credible or more likely than not pretextual. Id.
Thomas is African-American and is therefore a member of a protected class, and
he obviously experienced an adverse employment action when he lost his job. Next we
look at whether his employment performance was satisfactory. Let’s assume for the
moment that Thomas was performing his job in a satisfactory way; he says he was
although the video proof strongly suggests that he violated state law and federal
regulations when he failed to come to a complete stop at a train crossing. But in any
event, the last prong of the prima facie case dooms his case because Thomas has failed to
demonstrate that other similarly situated employees not in the protected class were
treated more favorably than he was.
In order for an individual to be similarly situated to Thomas, he would have to
prove “that the individual is directly comparable to [him] in all material respects.
Factors relevant to this inquiry include whether the employees reported to the same
supervisor, whether they were subject to the same standards and whether they had
comparable education, experience and qualifications.” Burks, 464 F.3d at 751 (quotation
marks and citations omitted); see also Patterson v. Avery Dennison Corp., 281 F.3d 676, 680
(7th Cir. 2002).
The question about whether someone is similarly situated to the plaintiff is a
flexible inquiry. As the Seventh Circuit has made clear, “The Supreme Court ‘never
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intended’ the requirement as ‘rigid, mechanized, or ritualistic . . . [but] merely a sensible,
orderly way to evaluate the evidence in light of common experience as it bears on the
critical question of discrimination.’” Coleman, 667 F.3d at 846 (quoting Furnco
Construction Corp. v. Waters, 438 U.S. 567, 577 (1978)). Yet Thomas has not done enough
to satisfy this inquiry. Thomas proffers Rosetta Loggins as a “similarly situated
Caucasian employee who received more favorable treatment, under the same or similar
circumstances, on the basis of her race.” [DE 76 at 3.] At his deposition and in his
declaration, Thomas stated that two days after he was fired, Loggins left passengers at a
high school, but suffered no consequences as a result. [DE 76-6 at 17-18.] This
information is insufficient to satisfy the inquiry because Thomas has no personal
knowledge of the incident. Thomas no longer was employed by the City at the time the
incident allegedly occurred and Thomas has no personal knowledge as to whether she
actually was disciplined as a result of the incident. And Thomas did not designate any
additional evidence — such as testimony of the City officials who were deposed —
regarding the Loggins incident.
But even if I accept Thomas’ testimony as being accurate, there is really no way of
knowing whether Thomas’ situation is similar to Loggins’. It seems clear that the
alleged incident involving Ms. Loggins —leaving passengers at the high school — is not,
to my knowledge, a violation of Indiana law or federal regulations like Thomas’ failure
to stop before a railroad crossing. Because Thomas has failed to produce admissible
evidence that Loggins was similarly situated to him, summary judgment is appropriate
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Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996) (“[A] party may
not rely upon inadmissible hearsay in an affidavit or deposition to oppose a motion for
summary judgment.”)
I will note that even if Thomas were to get past the prima facie case, he also has
failed to establish that the City’s stated reason for terminating him was a pretext. The
evidence shows that it was not. Thomas violated Indiana law and federal regulations
when he failed to stop at a railroad crossing, which, as he was warned almost three
weeks prior, could be expected to result in termination. Thomas attempts to cloud the
issue by arguing that the bus speedometer and video monitoring system were not
synchronized to accurately reflect his speed during the railroad crossing incident, and
the bus monitoring system, indicating that his speed did not reach 0 mph before the
railroad crossing, was not properly calibrated. [DE 76 at 2.] But that is of no matter, as
the video clearly shows that Thomas did not come to a complete stop. And even if an
argument can be made, as Thomas tries to, that he paused ever-so-briefly at the railroad
crossing, and the pause is not properly reflected on the video, based on what is reflected,
it was still reasonable for the City to conclude that he did not stop. In other words, even
if the City’s decision was factually wrong – and I don’t think it was based on my view of
the videotape – it wouldn’t amount to pretext. This is because a pretext is a lie or a
phony explanation that covers up the real reason for the adverse employment action.
Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir. 2002).
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Thomas also tries to cloud the issue by arguing that the City improperly
considered his six-and-a-half year disciplinary history when making the decision to
terminate him, when it only should have considered the two most recent years. This
argument is a nonstarter because he provided no evidence that this actually was the case
and, furthermore, the Employee Corrective Action Notice regarding his termination
notes only his behavior that day – failure to stop at the railroad crossing, speeding,
following at an unsafe distance, unsafe lane change – and that he was suspended a total
of three time in the last 12 months for failure to follow instructions. [DE 63-2 at 3-4.] And
even if the City had considered his six-and-a-half year disciplinary history, and that act
had been improper, it is of no matter because the railroad crossing incident, in and of
itself, was a sufficient reason to terminate him under Strader’s memorandum.
In sum, there is simply no evidence that the stated reason for termination was a
pretext for discrimination. Indeed, Mr. Strader made it clear three weeks prior to this
incident that failing to abide by this important safety regulation was grounds for
termination.
Thomas’ case likewise fails under the direct method of proof. “Under the direct
method [of proving discrimination], a plaintiff must come forward either with direct or
circumstantial evidence that ‘points directly to a discriminatory reason for the
employer’s action.’” See Burks, 464 F.3d at 750 n.3 (citation omitted). Under the direct
method of proof, circumstantial evidence of discrimination includes things like
suspicious timing, ambiguous statements, or behavior toward or comments directed at
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other employees in the protected group. It can also include evidence that similarly
situated employees outside the protected class received systematically better treatment.
Or it could include situations where an employee was qualified for and fails to receive
the desired treatment, and the employer’s stated reason for the difference is unworthy of
belief. See, e.g., Hasan v. Foley & Lardner, LLP, 552 F.3d 520, 529 n.4 (7th Cir. 2008).
Thomas has failed to point to sufficient evidence showing that his race motivated
the City’s decision to terminate his employment. At his deposition, Thomas testified that
his boss, Robert Strader, “boldly let you know that he was a bigot” but, when pressed,
could not give examples of anything Strader did to convey this and testified that “it’s
just the way it was going.” [DE 76-6 at 10-11.] While Thomas speculated that
management was out to fire the African-American employees, he testified that he never
heard anyone in management say that they were targeting certain individuals to be fired.
[Id. at 4-7.]
Thomas also claims that Strader refused to hire Tyshona Hales, who Thomas
claims was a qualified African-American applicant, and that she was later hired after
Strader’s termination and after she filed an Equal Employment Opportunity
Commission claim against the City for refusing to hire her because of her race. [DE 76 at
3.] Strader testified that Hales accused him of wrongfully denying her a position as a
bus driver, but that his denial was the result of a bad written and driving test
performances and that Robert Zonder, the Mayor of Michigan City, did not disagree
with Strader’s decision not to hire her. [DE 76-2 at 5, 7.] Zonder testified that Hales was
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eventually hired after she reapplied for the position because the pool of applicants was
smaller and it seemed like she was better prepared. [DE 76-4 at 33.] Without more, none
of this evidence directly shows that Strader was a racist and refused to hire Hales
because she is African-American. It may be the case that she was not qualified when she
first applied (as Strader and Zonder testified) or that there were other applicants who
were simply more qualified than Hales and they were hired first. Thomas only opines
that the decision not to hire Hales initially was racially motivated and can point to no
direct evidence to show that was actually the case. This opinion testimony, without
more, is insufficient to prove discrimination. Visser v. Packer Eng'g Assocs., Inc., 924 F.2d
655, 659 (7th Cir. 1991) (“Inferences and opinions must be grounded in observation or
other first-hand personal experience. They must not be flights of fancy, speculations,
hunches, intuitions, or rumors about matters remote from that experience.”)
In sum, without the declaration, Thomas is unable to point to any admissible
evidence to support his contention that his race motivated the City’s decision to
terminate his employment. So his case fails under the direct proof method as well.
It might well be the case that Thomas was treated unfairly by his former
employer, the City of Michigan City. That’s not for me to decide. This is because getting
treated unfairly isn’t the same thing as getting treated unfairly because you’re a member of
a protected class. Thomas needed to point me to admissible evidence showing that the
latter is what happened if he wanted to get a discrimination claim past the summary
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judgment stage, and he simply hasn’t done that. Therefore, summary judgment is
warranted.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN
PART Michigan City’s Motion to Strike [DE 77]. In addition, the Court GRANTS the
pending Motion for Summary Judgment [DE 62] in its entirety. Because this ruling
disposes of all the issues in this case, the clerk shall ENTER FINAL JUDGMENT in
favor of the City of Michigan City and against Vincent Thomas. The clerk shall treat this
civil action as TERMINATED. All further settings in this action are hereby VACATED.
SO ORDERED.
ENTERED: December 16, 2015
_s/ Philip P. Simon_______________
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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