GLENN E. JONES, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee.
United States Court of Appeals For the Seventh Circuit
ARGUED MAY 23, 2002—DECIDED SEPTEMBER 10, 2002
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 3417—David H. Coar, Judge.
BAUER, Circuit Judge. Plaintiff Glenn E. Jones sued Union Pacific Railroad Company for violations of
BACKGROUND
Glenn E. Jones, a black male, was employed by the Union Pacific Railroad. (Originally, Jones was employed by the Chicago North Western Transportation Company. The two companies merged in 1995.) From 1980 until 1998, Jones was a “coach cleaner“, and after completing an apprenticeship in 1989, he was promoted to “carman“.1
As Jones was making his way across the yard, Agent Brody, in uniform, approached and stopped him to speak as he crossed the main rail line. Agent Brody asked Jones his reason for being in the yard and asked if he had identification.3 Jones‘s and Agent Brody‘s accounts of what transpired after Agent Brody requested to see Jones‘s identification differ sharply.
According to Jones, when asked for identification he showed his employee identification. Jones responded indignantly, and although Agent Brody did not like his tone of voice, he initially made nothing of it. Jones then proceeded on his way until stopped again, on the sidewalk, by Agent Brody. While on the sidewalk, Jones stated that Agent Brody threatened his job, and asked to see his employee identification once again. Jones yelled for a neighborhood person to call the Chicago Police. (The sidewalk was not railroad property, and Agent Brody possessed no authority or police powers on public property.) The Chicago Police and Agent Brody‘s supervising officer, Special Agent Finger, arrived a few minutes later. Neither Jones nor Agent Brody were arrested.
Agent Brody tells a very different story. According to Agent Brody, when he approached Jones on the tracks and requested to see his identification, Jones replied in an indignant tone with an expletive (“What is the problem, motherfucker? I am an employee of the railroad.“). Jones flashed Agent Brody an I.D., but would not let him examine it, again using derogatory language in the process (“Look you white motherfucker, I have my ID right here.“). Because of the potential danger associated with moving trains, Agent Brody suggested they move off the tracks to the sidewalk. Once off the tracks, Jones began yelling at Agent Brody, using more expletives and racial epithets (calling Brody a “white racist hillbilly motherfucker with a gun” and telling Brody he was going to get his “white ass fired“).
A crowd of people from the neighborhood began to gather around Jones and Agent Brody. Jones then yelled for someone to call the Chicago Police, stating: “this white hillbilly motherfucker is harassing me“. Agent Brody, fearing a physical confrontation between himself and Jones or the crowd, wisely decided to leave
Jones was charged with insubordination and quarreling. An investigation of the incident was conducted by “upper management“. None of the individuals involved in the altercation (Agent Brody and Special Agent Finger) were members of the investigation panel, nor did they participate in the decision-making process. Superintendent of Commuter Operations Greg Larson and Director-Mechanical for Commuter Operations Rick Laue made the decision to terminate Jones.
Jones was represented by the Union, given the opportunity to make a statement, and call witnesses to testify on his behalf. Jones called no witnesses, giving only a statement. In that statement, Jones mentioned nothing about the encounter, charge, or investigation being racially motivated. Instead, Jones stated that the officers were patsies used to trump up charges against him because he was involved in “labor activities“. Jones said, “I believe this is what this [incident] is about, about my labor activities at Cal Avenue, in the Coach Yard.” (emphasis added).
Union Pacific maintains a graduated disciplinary policy, ranging from Level 1 to Level 5. Discipline begins with written reprimands and progresses to suspension and dismissal. Rule 1.6 of the Operating Rules applicable to employees prohibits, among other things, employees from being insubordinate to a supervisor and quarrelsome or discourteous to a fellow employee. A violation of Rule 1.6 is considered a Level 5 infraction, resulting in dismissal. According to Union Pacific, the policy does not allow the consideration of prior work history, discipline, or injuries when a Level 5 infraction is under consideration.4
Union Pacific‘s investigative and disciplinary authority chose to believe the officers’ version of events and sus-tained the charge of insubordination and quarreling; Jones was dismissed from his position. Jones then later filed suit in federal district court alleging racial discrimination. He moved for summary judgment and Union Pacific responded. The district court denied his motion and granted summary judgment in favor of Union Pacific.
ANALYSIS
We review the grant of a motion for summary judgment de novo, viewing all facts in a light most favorable to the non-moving party to determine if issues of material fact necessitate a trial on the merits. See Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005 (7th Cir. 2001); see also
A. Summary Judgment
Jones argues that the district court erred procedurally by granting summary judgment sua sponte. Union Pacific counters, stating that it did move for summary judgment in its’ response to plaintiff‘s motion for summary judgment. Although granting summary judgment sua sponte is a “hazardous” procedure which “warrants special caution” and is often unnecessary, it remains permissible. Peckmann v. Thompson, 966 F.2d 295, 297 (7th Cir. 1992); Sawyer v. United States, 831 F.2d 755, 759 (7th Cir. 1987). When there are no issues of material fact in dispute, a district judge may grant summary judgment in favor of the non-moving party or may grant summary judgment even though no party has moved for summary judgment. See Hunger v. Leininger, 15 F.3d 664, 669 (7th Cir. 1994). The court may enter summary judgment sua sponte, as long as the losing party is given notice and an opportunity to come forward with its evidence. See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); Goldstein v. Fid. and Guar. Ins. Underwriters, Inc., 86 F.3d 749, 750 (7th Cir. 1996) (“The party against whom summary judgment is entered must have notice that the court is considering dropping the ax on him before it actually falls.“).
Jones asserts that because the district court did not specifically state that it was considering the defendant‘s response brief as a cross-motion for summary judgment—or considering it sua sponte—that he was not on notice to come forward with all of his evidence. However, the facts belie this argument. Jones had moved for summary judgment and marshaled all the favorable evidence available in support of that motion. Moreover, Jones does not cite to any additional evidence to add to that which he brought forward in his original motion. Hence, the granting of summary judgment did not deprive Jones of the opportunity to present any beneficial evidence. Cf. Peckmann, 966 F.2d at 298.
Additionally, when Jones moved for summary judgment both parties were on notice that summary judgment was under active consideration. And the defendant‘s response to the plaintiff‘s motion for summary judgment put Jones on further notice by stating that the court should consider the response “in the nature of a cross-motion for summary judgment“. Thus, Jones had an opportunity to respond to the defendant‘s cross-motion statement in his reply brief, but chose not to do so, and raised no objection to the defendant‘s request for summary judgment.
Jones was on notice that summary judgment in Union Pacific‘s favor was a distinct possibility. Jones argued in his motion for summary judgment—it turns out ironically—that there were no genuine issues of material fact. The district court agreed with Jones and concluded there were no genuine issues of material fact, but in applying those facts to the law, granted summary judgment in favor of Union Pacific. Granting summary judgment—whether sua sponte or in response to defendant‘s cross-motion—did not deprive the plaintiff of any procedural safeguards. See Goldstein, 86 F.3d at 750-51; see also Simpson v. Merch. Recovery Bureau, Inc., 171 F.3d 546, 549 (7th Cir. 1999).
B. Discriminatory Job Assignments & Retaliation Claims
Before reaching the merits of the discriminatory job assignments and retaliation
By neglecting to raise the discriminatory job assignments and retaliation claims in his opening brief, and by failing to argue that the district court‘s actual holding regard-ing the discriminatory job assignments claim was in error, Jones waived review of these two issues. See Sere v. Bd. of Tr. of the Univ. of Ill., 852 F.2d 285, 287 (7th Cir. 1988) (“We consistently and evenhandedly have applied the waiver doctrine when appellants have failed to raise an issue in their opening brief.“) (internal quotations and citations omitted); Gabriel v. United States, 30 F.3d 75, 78 (7th Cir. 1994); cf. Kauthar SDN BHD v. Sternberg, 149 F.3d 659, 667-68 (7th Cir. 1998) (“[W]e have stated that failure to address one of the [district court‘s] holdings results in a waiver of any claim of error with respect to the court‘s decision on that issue.“); Williams v. Leach, 938 F.2d 769, 772 (7th Cir. 1991); Landstrom v. Ill. Dep‘t of Children & Family Servs., 892 F.2d 670, 678 (7th Cir. 1990).
C. Discriminatory Discharge
1. demonstrating a prima facie case
Jones‘s discriminatory discharge claim proceeded under the indirect method laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973).5 In order to establish a prima facie case of discrimination the plaintiff is required to show that: (1) he is a member of a protected class; (2) his job performance was meeting his employer‘s legitimate expectations; (3) he suffered an adverse employment action; and (4) that other similarly situated employees not in the protected class were treated more favorably. Flores v. Preferred Technical Group, 182 F.3d 512, 515 (7th Cir. 1999).
Jones clearly meets parts one (he is a racial minority) and three (he was terminated from his job). Part two requires Jones to show he was satisfactorily performing his job—which included adherence to Union Pacific‘s rules and regulations regarding employee conduct—and part four requires Jones to demonstrate that other employees outside the protected class were treated more favorably in similar circumstances.
We have often noted that establishing a prima facie case—which the plaintiff must do by a preponderance of the evidence—is a condition precedent to the pretext analysis. E.g., Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1006 (7th Cir. 2002); Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997). An employee alleging discrimination must demonstrate that he or she was meeting the expectations of the employer either before or up
The need to establish a prima facie case does not always arise; frequently employers concede the prima facie case and simply offer a non-discriminatory justification. And we often assume the existence of a prima facie case, or consider part two of the test along with the issue of pretext because many times the issues are intertwined. See, e.g., Simmons v. Chi. Bd. of Educ., 289 F.3d 488, 492 (7th Cir. 2002). In the latter example, we have opted to modify the flexible test provided by the Supreme Court in McDonnell Douglas to meet the facts of a particular case, analyzing part two of the test together with the related issue of pretext. See McDonnell Douglas, 411 U.S. at 802 n.14; Texas Dep‘t of Comty. Affairs v. Burdine, 450 U.S. 248, 253-54 n.6 (1981); Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 807 (7th Cir. 1999). In a few unusual cases, where the employee was fired for a sudden and egregious breach of company policy, we have even assumed part two of the test was met and moved immediately to the pretext issue. See Flores, 182 F.3d at 515; Curry v. Menard, Inc., 270 F.3d 473, 477-78 (7th Cir. 2001).
The facts of this case call for a simultaneous review of part two of the prima facie case and pretext—first reviewing the non-discriminatory reason for the employment action—because the reason for the plaintiff‘s removal is intertwined with the employer‘s legitimate expectations.
2. part two of the prima facie case & pretext
If the plaintiff establishes a prima facie case the burden of production shifts to the defendant to provide a non-discriminatory reason for the employment action. See Burdine, 450 U.S. at 255; Pilditch v. Bd. of Educ. of the City of Chi., 3 F.3d 1113, 1117 (7th Cir. 1993) (“But this burden is also quite light; the employer need not persuade the court that he was actually motivated by the reason he gives and the mere articulation of the reason rebuts the prima facie case and puts the onus back on the plaintiff to prove pretext.“). Union Pacific stated that it fired Jones because of his conduct toward Agent Brody and Special Agent Finger which amounted to insubordination and quarreling, violating company policy. See Flores, 182 F.3d at 515 (“Insubordination is a legitimate, non-discriminatory reason for firing an employee.“); Plair, 105 F.3d at 345 (same); see also McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 797 (7th Cir. 1997) (upholding the district court‘s finding that insubordination was a legitimate non-discriminatory reason for plaintiff‘s discharge); Stringel v. Methodist Hosp., 89 F.3d 415, 418 (7th Cir. 1996) (same).
Since the defendant offered a non-discriminatory reason for the employment action, the burden of proof shifted back to the plaintiff to show pretext. Burdine, 450 U.S. at 256. Jones could satisfy this burden with direct or indirect evidence. To establish pretext, Jones must show that his race was the determining factor in his discharge, or that but for his race he would not have been discharged. Dale v. Chi. Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986). To meet this burden, Jones must produce “significantly probative admissible evidence” from which the trier of fact could infer that the employer‘s reason was false
Jones proffers several details from the events in question as proof of Union Pacific‘s racial animus. Jones asserts that the initial decision to stop him was motivated solely by race. As support, Jones cites Agent Brody‘s description of him. Agent Brody‘s report provides that he: “observed a black male carrying a hand-bag walking south across the tracks towards 400 N. Francisco Street. The black, male was wearing a knit had and soiled clothing typical of the trespassers that frequent the yard.”6 Accord-ing to Union Pacific, Agent Brody‘s stop of Jones was made because: trespassing in the rail yard is illegal and unsafe; Agent Brody was on watch for trespassers; Jones was alone and unfamiliar to Agent Brody; Jones was crossing the middle of the busy train yard more than forty minutes after the end of his shift using a route Agent Brody had never seen any employee use before; and his clothing and appearance matched that of prior trespassers.
While Jones agrees that the “use of the word ‘black’ was a neutral physical description“; he claims that Agent Brody wrongfully stereotyped him as a trespasser simply because he was black. However, the physical description is nothing more than that, and does not support Jones‘s contention. We have held before, and it would be a “sorry state” indeed if today we held that an unadorned physical description of a person which includes the person‘s race amounted to evidence of discriminatory intent. Plair, 105 F.3d at 348.
Next Jones asserts that pretext is evidenced by the fact that what he did does not qualify as insubordination or quarreling under the employee policy, therefore Union Pacific‘s proffered reasons for firing him are false. Jones‘s first argument is that he cannot be considered to be “quarrelsome” with another employee because the policy only applies to on-duty employees and he was off-duty and on his way home. In the district court, Jones also attempted to argue the entire confrontation occurred on the sidewalk. He has since admitted in his brief that the encounter began in the rail yard. Union Pacific interpreted its employee conduct policy to include actions of an employee, on or off-duty, while on railroad property. Jones provided no evidence to contradict this interpretation or to give examples demonstrating that the policy had never before been interpreted in that manner. Therefore, if Union Pacific believed Jones engaged in improper behavior toward Agent Brody, it could conclude that Jones violated company policy by being quarrelsome. Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000) (holding that an employer‘s reasons for terminating an employee may be “mistaken, ill considered or foolish“, but “so long as [the employer] honestly believed those reasons pretext has not been shown.“).
Jones also claims that Agent Brody was not his “supervisor” under company policy
Finally, Jones asserts that he was not insubordinate or quarrelsome with Agent Brody. His argument is, in essence, that under the applicable summary judgment standards we must accept his version of the facts as true, and as such, Union Pacific could have no legitimate reason for firing him. Jones misapprehends the applicable standards. While we do accept his version of the facts as true, the actual issue is not whether Union Pacific‘s account of events is correct, rather it is whether Union Pacific honestly believed the report of its officers.7 “[A]rguing about the accuracy of the employer‘s assessment is a distraction . . . because the question is not whether the employer‘s reasons for a decision are ‘right but whether the employer‘s description of its reasons is honest.’ ” Kariotis v. Navistar Int‘l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997) (quoting Gustovich v. AT&T Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1982) (emphasis in original)).
Jones cannot show that Union Pacific‘s interpretation and application of company policy was improper, nor can he demonstrate that the company‘s explanation (that it believed Agents Brody and Finger over Jones) was dishonest. See Kulumani v. Blue Cross Blue Shield Ass‘n, 224 F.3d 681, 685 (7th Cir. 2000). Furthermore, at the time the decision to discharge Jones was made, he said nothing about the charge or investigation being racially motivated. Rather, he stated that the officers were patsies used to trump up charges against him because he was involved in “labor activities“. In fact, the only person who made negative comments about someone‘s race was Jones. And if Union Pacific believed its officers’ version of events, it would have been remiss in not disciplining Jones for his conduct. See Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1133 (7th Cir. 1994) (noting that racial epithets have “no place in the employment setting“). As the plaintiff could not demonstrate that the employment decision was the result of some prohibited consideration, this court will not “sit as a super-personnel department that reexamines an entity‘s business decisions.” Dale, 797 F.2d at 464 (paraphrasing Kephart v. Inst. of Gas Tech., 630 F.2d 1217, 1223 (7th Cir. 1980) (per curiam).
3. part four of the prima facie case
Jones also failed to establish part four of the prima facie case. He has not provided a single example of another employee (not in the protected class) being treated more favorably under similar circumstances. In his opening appellate brief, Jones failed to provide any evidence that met part four of the test. This constitutes waiver of the issue. Sere, 852 F.2d at 287. In his reply brief, Jones provides a cursory, unusable comparison to another employee who was fired for being involved in an altercation with another employee at work, not for insubordination. Jones also neglected to mention that two employees were terminated, one black and one white, and that both were later reinstated on a leniency basis, with the black employee being reinstated first. Additionally, Jones omitted the fact that he was previously terminated for insubordination and he too was allowed to return on a leniency basis. See supra note 4. Hence, Jones failed to establish part four of the test.
CONCLUSION
No issue of material fact, pertinent to the disposition of this case, remains in conflict. Jones failed to make out a prima facie case because he cannot show that other similarly situated employees outside the protected class were treated differently, or that the reasons offered for his discharge, insubordination and quarreling, were pretextual. During the investigation which resulted in his discharge, Jones stated that the encounter between himself and Agent Brody was orchestrated by management because of their displeasure with his “labor activities“. Jones never mentioned his belief that the discipline was motivated by racial animus. The district court‘s grant of summary judgment is AFFIRMED.
A true Copy:
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-97-C-006—9-10-02