Opinion
Cause No. IP 99-693-C H/G.
March 27, 2001.
ENTRY ON DEFENDANT'S SUMMARY JUDGMENT MOTION AND RELATED MATTERS
Plaintiff Thomas Bunnell has worked for many years as a conductor for defendant Consolidated Rail Corporation ("Conrail"). Bunnell alleges that Conrail discriminated against him because he is African-American by disciplining him for two alleged performance problems. Conrail suspended Bunnell in 1996 for safety rule violations and again in 1997 for his involvement in a derailment. Bunnell has brought claims under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Conrail seeks summary judgment on both claims. Conrail has also moved to strike Bunnell's response to its summary judgment motion as untimely. For the reasons discussed below, the court denies Conrail's motion to strike but grants Conrail's summary judgment motion. Bunnell has failed to produce evidence that would permit a reasonable jury to conclude that Conrail's stated reasons for his suspensions were pretexts for race discrimination.
I. Conrail's Motion to Strike and Bunnell's Motion for Extension
Conrail asks the court to strike Bunnell's response to its summary judgment motion because Bunnell filed his submissions three days late following a series of extensions approved by the court. The court's Order dated May 16, 2000, extended the time for Bunnell's response until May 30, 2000, and stated that no further extensions would be granted. On May 30, 2000, Bunnell submitted Plaintiff"s Motion for Extension of Time to File Plaintiff's Response to Summary Judgment Motions [sic], which requested an extension until June 2, 2000, to file Bunnell's response. This was Bunnell's fourth motion for an extension. In addition, on March 17, 2000, the court had extended the time for Bunnell's response by approximately 10 days because of Conrail's failure to make a proper submission (supported by original affidavits) when it first filed its summary judgment motion on March 10, 2000. On June 2, 2000, without having received a ruling on his motion for an extension, Bunnell filed his responsive papers.
Bunnell's counsel's conduct with respect to the May 30, 2000, and June 2, 2000, filings is highly inadvisable. See Spears v. City of Indianapolis, 74 F.3d 153 (7th Cir. 1996) (affirming district court's decision to strike all materials in opposition to summary judgment where they were filed one day after last of several extensions had expired). Nevertheless, the court denies Conrail's motion to strike and grants Bunnell's fourth motion for an extension. Conrail's motion essentially asks the court to grant its summary judgment motion by default. The court generally prefers to decide cases on the merits, as it does in this case, below.
II. Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, summary judgment is not a substitute for a jury's determination about credibility or about whether a reasonable inference should be drawn from circumstantial evidence of a person's intentions. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998).
On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Service, Inc., 169 F.3d 494, 497 (7th Cir. 1999). However, the existence of "some alleged factual dispute between the parties," or "some metaphysical doubt" does not create a genuine issue of fact. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). Rather, the proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000).
Although intent and credibility are critical issues in employment discrimination cases, there is no special rule of civil procedure that applies only to them. See, e.g., Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In employment discrimination cases, as in all cases, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact.
III. Undisputed Facts
For purposes of Conrail's summary judgment motion, the following facts are either undisputed or reflect the record in the light reasonably most favorable to Bunnell, the non-moving party.
Thomas Bunnell has been employed by Conrail or its predecessor since 1969. Bunnell first worked as a trainman. Bunnell was promoted to a conductor position in 1971. Bunnell Aff. ¶ 4.
A. The October 1996 Incident
On October 17, 1996, Bunnell was the conductor of a train that left from Conrail's rail yard in Avon, Indiana. Pl. Ans. No. 4. N.C. Shilling, who is white, was the engineer on the train. Id.; Bunnell Aff. ¶ 8. As conductor, Bunnell was in charge of the train and responsible for directing its movement. See Pl. Ans. No. 2.
Bunnell and Shilling were instructed to "set off" certain train cars and pick up other train cars in Marion, Indiana. Bunnell Aff. ¶ 11. During the set-off procedure, Bunnell and Shilling were communicating indirectly through Scott Stanley, a mile-post driver in a nearby van. Id. at ¶ 18; Guveiyian Aff., Ex. O at 51. Bunnell and Shilling had been experiencing radio problems since the train left Avon. Bunnell Aff. ¶ 10. To perform the set-off, Bunnell requested "three-step protection" from Shilling through Stanley. Bunnell Aff. ¶ 19. Three-step protection requires the engineer to (1) apply the train brakes; (2) place the reverser lever in neutral position; and (3) open the generator field switch. Guveiyian Aff., Ex. F. The engineer must maintain this protection until notified that the protection is no longer required. Id. Through Stanley, Shilling confirmed that three-step protection was applied. Bunnell Aff. ¶ 19.
The parties dispute what happened next. According to Bunnell, the train cars came to a complete stop after Shilling applied three-step protection. Bunnell then turned the angle cock and lifted the pin to perform the set-off. Bunnell Aff. ¶¶ 20-21. Bunnell then told Stanley to tell Shilling to release the three-step protection to complete the set-off. Id. at ¶ 22. The train car that Bunnell was working on then "stretched" or moved about four feet. Id. at ¶ 23. Such movement can be dangerous for workers who do not expect it.
According to Conrail, Bunnell turned the angle cock before the train had completely stopped in violation of Rule 1710 in the S7A Conrail Safety Rule and Procedures Book. Guveiyian Aff. ¶ 14, Ex. O at 9, 12, 57. Rule 1710 provides: "Never make adjustments to moving equipment. Before fouling, going between or under STANDING equipment for inspection, adjustment, repairs, or any other purpose, take the following precautions . . . (d) Make sure that the slack has adjusted. . . . (g) Know that equipment will not move." Id., Ex. O at 9-10. Conrail policy declares that Rule 1710 is a "critical rule." Id. at ¶¶ 10, 14 Ex. O at 11. Conrail developed its "critical rules" because safety was a paramount consideration in the operation of the railroad. Id. at ¶ 9. Violation of critical rules results in removal from service. Id. at ¶ 14, Ex. O at 33.
Senior Trainmaster Allen Parman and Yardmaster Clifford Bragg witnessed Bunnell's and Shilling's actions in Marion on October 17, 1996. Guveiyian Aff. ¶ 14, Ex. O at 8, 12. After consulting with District Superintendent Benjamin Chance by telephone, Parman removed Bunnell and Shilling from service for violating the three-step protection rule. Id. at 30. (The parties apparently use "three-step protection rule" and "Rule 1710" interchangeably, although the formal definitions of the terms appearing in the record are not identical.) Bunnell denied that he had violated any safety rule. Bunnell Aff. ¶ 24. Bunnell also told Parman and Bragg that he had requested three-step protection from Shilling, and that Shilling had confirmed it had been applied. Id.
Shortly following the incident, District Superintendent Chance reviewed the radio and engine tapes and concluded that Shilling had not violated the three-step protection rule. As a result, Shilling was restored to service with backpay on October 25, 1996. See Guveiyian Aff. ¶ 14, Ex. O at 30.
Around this same time, Bunnell and his union representative met with Chance. Bunnell Aff. ¶ 26. Chance told Bunnell that he had reviewed the radio tapes and was willing to put him back to work and forget about the alleged violation of the three-step protection rule. Id. Bunnell had learned that Conrail returned Shilling to work with backpay and asked Chance if he would receive the same. However, Chance did not agree to return Bunnell to work with backpay. Id. Bunnell then told Chance he wanted a full investigation because he had committed no rule violations. Id.
As part of the investigation of the October 17, 1996 incident, Conrail charged Bunnell with (1) failure to station himself at the leading end of movement while "shoving" his train in violation of Rule 116 of the Northeast Operating Rules Advisory Committee ("NORAC") Rules Book; and (2) closing the angle cock on the equipment before the slack had been adjusted in violation of Rule 1710. Guveiyian Aff. ¶ 14, Ex. O at 6 Ex. 5. When Parman removed Bunnell from service on October 17, 1996, he had not told Bunnell that he believed Bunnell had violated Rule 116. Bunnell Aff. ¶ 24.
On November 1, 1996, a hearing was held to investigate formally the October 17, 1996, incident. Bunnell attended and was represented by his union. At the hearing and in this litigation, Bunnell has taken the position that (1) NORAC Rule 116 did not apply to his conduct on October 17, 1996; and (2) he did not violate Rule 1710.
NORAC Rule 116 provides: "When the Engineer operates a train from other than the leading end of the movement, a crew member must be stationed on the leading end of the movement to observe conditions ahead and take action to properly control the movement of the train. . . . This rule does not apply when switching, making up trains in yards, or when the movement is preceded by a crew member." Guveiyian Aff. ¶ 12, Ex. G at 41, Ex. O at 8-9, 11. During the set-off procedure on October 17, 1996, Bunnell was standing on the side of an embankment — not at the leading end of the movement — directing Shilling to move or "shove" the train into a reverse curve. See Def. Statement of Material Facts, ¶ 10 (citing Guveiyian Aff. ¶ 14, Ex. O at 8, 9, 44, 48).
For summary judgment purposes, the court treats Conrail's assertion that "Mr. Bunnell was standing on the side of an embankment, not at the leading end of the movement, directing the shove into a reverse curve, making observation of the leading end impossible" as undisputed. See Def. Statement of Material Facts ¶ 10 (citing Guveiyian Aff. ¶ 14, Ex. O at 8, 9, 44, 48). Bunnell failed to respond specifically to Conrail's properly supported factual assertion on this issue. See Local Rule 56.1(g). Instead, Bunnell stated that he disputed this assertion based on three of his statements of additional material facts. See Pl. Response to Def. Statement of Material Facts ¶ 10 (citing Pl. Statement of Additional Material Facts, ¶¶ 67, 73-74). However, all three of these additional factual assertions relate to Bunnell's theory that Rule 116 did not apply to his conduct on October 17, 1996. None of these additional factual assertions addressed Conrail's assertion about where Bunnell was actually located while he was directing Shilling to move the train.
According to Bunnell, Rule 116 did not require him to be stationed on the leading end of the train because he and Shilling were moving a train in a train yard. In addition, Bunnell argued that NORAC Rule 101 authorized his conduct because he knew that there was room for the train on the track based on his observations that day and on his prior experience at that location. Id., Ex. O at 44. Bunnell's testimony at the investigation hearing acknowledged, at least implicitly, that he was not stationed on the leading end of the train while performing the set-off on October 17, 1996. See id. ("Q. Mr. Bunnell, when you are shoving into the Middle Pocket North Siding, were you able to observe the rear end, the whole time you were shoving in? A. Mr. Dunlap, no, . . ."); see id. at 48 ("Q. How far did you shove not being able to observe your rear end of the train? A. 39 cars."); see also Pl. Ex. T (final arbitration decision) ("[Bunnell] readily admits and all evidence supports a finding that [Bunnell] did not station himself on the leading end of the movement.").
In his affidavit filed in opposition to Conrail's summary judgment motion, Bunnell stated: "At no time before, during, or after the March 1, 2000 Special Board of Adjustment No. 981 arbitration decision did I admit in any way to a violation of Rule 116 regarding stationing myself on the leading end of the movement." Bunnell Aff. ¶ 30. By this language, it is unclear whether Bunnell intended to dispute that he ever made such an admission (as the final arbitration panel characterized his testimony at the investigation hearing) or whether he disputes engaging in the underlying conduct (i.e., directing the train to be backed up without positioning a crew member, in this case, himself, at the leading end of the movement). See footnote 1, supra. Consistent with statements he made at the investigation hearing, Bunnell also stated in his affidavit that "it was unsafe for [him] to be stationed on the lead end of the train" because of the radio problems he and Shilling were experiencing. Id. at ¶ 18; see also id. at ¶ 19 ("It was much safer to walk along the train cars"). Bunnell cannot create a disputed issue of material fact for trial by controverting in his affidavit his prior testimony at the investigation hearing. See, e.g., Sullivan v. Conway, 157 F.3d 1092, 1096 (7th Cir. 1998) ("a deponent is not allowed to change what he said in his deposition by giving an affidavit later"). At a minimum, Bunnell's testimony at the hearing establishes for summary judgment purposes that Bunnell impliedly acknowledged that he was not standing at the leading end of the movement on October 16, 1997.
Regarding the alleged Rule 1710 violation, Bunnell testified at the investigation hearing that he did not adjust the angle cock until the train had come to a complete stop. According to Bunnell, the train moved after Bunnell adjusted the angle cock because Shilling did not perform his job adequately. Bunnell believes that Shilling did the required braking but did not perform a "full service reduction stop" when backing up the train so that the train "stretched" or moved about four feet after Bunnell adjusted the angle cock. Bunnell Aff. ¶ 23.
Following the investigation hearing, Conrail notified Bunnell on or about November 15, 1996, that he was being suspended 30 days for rules violations on October 17, 1996. Guveiyian Aff. ¶ 13, Ex. N. Charles Guveiyian, Indianapolis Division Transportation Superintendent and Assistant General Manager, made this disciplinary decision based on the evidence presented at the hearing. Id. at ¶¶ 15-17. This was the first time during his long career with Conrail that Bunnell had been suspended. Id. at ¶ 14, Ex. O, Ex. 19. According to Guveiyian, Bunnell could have received a shorter suspension for the rules violations if he had admitted responsibility for them. Id. at ¶ 21; see also id. at ¶¶ 6-8 (employees or their union representatives generally could request leniency in connection with alleged safety rule violations if employees admitted responsibility for their conduct).
Prior to the November 1996, suspension, Bunnell had been disciplined twice at Conrail. He received a reprimand in 1980 and an "informal reprimand" in 1983. Guveiyian Aff., Ex. O, Ex. 19.
Pursuant to a collective bargaining agreement, Bunnell appealed his suspension. Bunnell Aff. ¶ 28. The suspension decision was upheld at the first two levels of appeal. Guveiyian Aff., Ex. P. The third level of appeal resulted in the Special Board of Adjustment No. 981 arbitration decision dated March 1, 2000. Bunnell Aff. ¶ 29, Pl. Ex. T. This final arbitration decision concluded that Conrail had not proved that Bunnell committed the three-step protection violation. Pl. Ex. T at 7. The arbitration panel found a "technical violation" of Rule 116 but reduced the penalty for that violation from a 30-day suspension to a two-day deferred suspension. Id. The decision stated that Bunnell "was denied a full and fair Investigation" at the hearing because he was not allowed to call Stanley, the mile-post driver who witnessed the incident, and because the hearing officer severely limited the cross-examination of Conrail's witnesses. Id.
B. The January 1997 Incident
Bunnell was the conductor on a train of which one car derailed at the Avon Yard on January 15, 1997. Pl. Ans. No. 8. Bunnell and Conrail dispute the cause of the derailment.
According to Bunnell, the derailment was caused because the switch malfunctioned and because of accumulated snow and ice in the switch. Bunnell Aff. ¶ 39.
Conrail asked three supervisors to investigate the derailment. Guveiyian Aff. ¶ 24, Ex. R at 8, 14, 17-18; Whitaker Aff. ¶¶ 4, 11. Based on this investigation, Conrail concluded that Bunnell was responsible for the derailment because he improperly "lined" the switch, which caused the derailment. See id.
Conrail conducted a formal investigation hearing on the derailment on February 20-21, 1997. Guveiyian Aff. ¶ 24, Ex. R at 1, 17. As with the investigation of the October 1996 incident, Bunnell attended the investigation proceeding and was represented by his union. See id. At the hearing, Bunnell and Conrail presented their competing theories of what caused the derailment.
On or about March 5, 1997, Conrail informed Mr. Bunnell that he was being suspended 45 days as discipline for the derailment. Id. at 24. Again, Guveiyian made the decision regarding the disciplinary action based on the evidence presented at the investigation hearing. Id. at ¶ 25. Guveiyian assessed the "relatively stiff" penalty under Conrail's progressive discipline policy because it had been only about three months since Conrail had disciplined Bunnell for the safety rule violations related to the October 1996 incident. Id. at ¶¶ 27-29. Guveiyian was concerned that Bunnell was becoming careless about his work, which could have serious safety consequences. See id. Again, according to Guveiyian, Bunnell likely would have received a shorter suspension if he had admitted responsibility for the derailment and requested leniency. Id. at ¶ 31.
Bunnell appealed his 45-day suspension pursuant to the collective bargaining agreement. Bunnell Aff. ¶ 41. At the time of their summary judgment filings, the parties still were awaiting a decision on the appeal.
C. The October 1997 Derailment
John Stecher was the conductor on a train of which four cars derailed at the Avon Yard on October 16, 1997. Whitaker Aff. ¶¶ 14-15. Stecher is white. Conrail investigated the derailment. Its investigators concluded that a malfunctioning switch caused the switch to unlatch, which caused the derailment when the train moved across the switch. Id. at ¶ 17, Ex. B. Based on the investigation, Conrail determined that Stecher was not responsible for the malfunctioning switch and that he was not at fault for the derailment. Id. at ¶ 17. Stecher apparently was not disciplined at all because of the derailment on his train.
IV. Discussion
Bunnell asserts race discrimination claims under Title VII and 42 U.S.C. § 1981 based on his suspensions in 1996 and 1997. The legal standards for both claims are generally the same, as Bunnell has acknowledged. See Gonzalez v. Ingersoll Mill Mach. Co., 133 F.3d 1025, 1035 (7th Cir. 1998) ("The same standards governing liability under Title VII apply to section 1981."); Melendez v. Illinois Bell Telephone Co., 79 F.3d 661, 669 (7th Cir. 1996) ("The substantive standards governing liability for § 1981 claims and Title VII disparate treatment claims are identical."). Although the court discusses below only Bunnell's Title VII claim, the reasoning applies to both claims.
Title VII makes it an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin. . . ." 42 U.S.C. § 2000e-2(a)(1). Because Bunnell has not offered any direct evidence of race discrimination, the court analyzes his claims under the three-step pattern of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this model, Bunnell must first establish a prima facie case of race discrimination by producing evidence that tends to show that (1) he is a member of a protected class; (2) he performed his job satisfactorily; (3) he suffered an adverse employment action; and (4) that Conrail treated similarly situated employees outside of his protected class more favorably. See Stockett v. Muncie Indiana Transit System, 221 F.3d 997, 1001 (7th Cir. 2000) ; Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1132 (7th Cir. 1994).
The prima facie case is intended to identify circumstances in which a jury could infer that an employment decision, if not explained, was the product of illegal discrimination. See, e.g., Stockett, 221 F.3d at 1001. However, if the employer can then merely articulate a legitimate, non-discriminatory reason for its decisions, that step shifts the burden of proof and persuasion back to the plaintiff to show that the employer's stated reason is a pretext, that is, a false explanation for the decision. See id.; see Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 684 (7th Cir. 2000).
Conrail agrees that Bunnell is a member of a protected class and that Bunnell's suspensions were adverse employment actions. Conrail contends, however, that Bunnell cannot establish the second or fourth elements of his prima facie case as a matter of law because (1) the suspensions prove that Bunnell was not performing his job satisfactorily; and (2) Bunnell cannot prove that similarly situated white employees were treated more favorably. In response, Bunnell counters that there are fact questions on these elements and that there is record evidence of pretext.
A. Bunnell's Prima Facie Case
Viewing the record evidence in the light reasonably most favorable to plaintiff, Bunnell has come forward with sufficient evidence to establish a prima facie case of race discrimination.
1. Satisfactory Job Performance
Conrail contends that its disciplinary actions against Bunnell prove as a matter of law that Bunnell was not living up to its legitimate expectations. Bunnell argues that his long and relatively unblemished service record with the company is sufficient to establish this second element of his prima facie case for summary judgment purposes. Because a plaintiff's burden to establish a prima facie case under Title VII is not onerous, the Seventh Circuit has recognized that a plaintiff may create a material dispute about his own abilities by simply attesting that he was performing satisfactorily. See Roberts v. Separators, Inc., 172 F.3d 448, 451 (7th Cir. 1999) (assuming that plaintiff could establish this element and moving on to related pretext analysis) (citing Gustovich v. AT T Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992) (distinguishing between the use of such "self-serving" evidence at the prima facie case stage and at the pretext analysis)); see also Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1263 n. 5 (7th Cir. 1993) (citation omitted) ("We have long recognized that an employer's acceptance of work without express reservation is sufficient to show that the plaintiff was performing satisfactorily for the purpose of shifting the burden of proof.").
Viewing the record evidence in the light reasonably most favorable to Bunnell, Bunnell has come forward with sufficient evidence of his satisfactory performance to create an issue for trial. According to Bunnell, he has always satisfactorily performed his job duties at Conrail. Bunnell Aff. ¶ 5. Bunnell had worked for Conrail for 27 years when he was suspended for the first time in November 1996. At that time, he had received only two reprimands over the course of his long employment. More important, according to Bunnell's version of the facts, which the court must credit on summary judgment, he did not commit the safety violations that he was charged with in 1996 and he was not responsible for the derailment in 1997. Based on this record, a reasonable jury could conclude that Bunnell was performing his job satisfactorily.
Conrail has cited Seventh Circuit cases that decided the satisfactory job performance element against plaintiffs as a matter of law based on the plaintiffs' disciplinary record. Bunnell's case is distinguishable from these cases in two important respects. In none of these cases was the disciplinary action that the employer cited as conclusive proof of the plaintiff's substandard performance the adverse employment action on which the plaintiff based his claim. In addition, these cases generally involved more evidence about the plaintiffs' overall negative performance than the court has before it in this case. See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1031, 1035 (7th Cir. 1999) (affirming summary judgment for employer in discharge case where plaintiff had a history of performance problems, had been given a final warning, and admitted that she violated employer's rule on tardiness); Biolchini v. General Elec. Co., 167 F.3d 1151, 1154-55 (7th Cir. 1999) (affirming summary judgment for employer in discharge case where employer had received several complaints about plaintiff's technical competency and management style and where plaintiff had violated sexual harassment policy; summary judgment also was appropriate on pretext grounds); Hong, 993 F.2d at 1262-63 (affirming summary judgment for employer in discharge case where plaintiff received at least seven written notices of performance problems (of which she disputed only one) and other individual counseling sessions; her evaluations demonstrated a decline in performance over time); and Villa v. City of Chicago, 924 F.2d 629, 631 (7th Cir. 1991) (affirming summary judgment for city where mayor's photographer, in his "final transgression," photographed a royal visitor in a private lounge while she was applying make-up).
In addition, in its reply brief Conrail argues, for the first time, that the satisfactory job performance element of Bunnell's prima facie case is intertwined with the question of whether there is evidence that Conrail's reasons for its disciplinary actions are pretextual. See Def. Reply Br. at 6. Conrail contends there is no evidence of pretext, although it did not raise this issue in its opening brief. See id.; see also Def. Br. at 18 (arguing that the court need not undertake any pretext analysis in this case). In general, a party is not permitted to raise an issue for the first time in its reply. See, e.g., Colosi v. Electi-Flex Co., 965 F.2d 500, 503 (7th Cir. 1992) (argument made for the first time in reply brief was raised "too late"). Defendants who choose to move for summary judgment on only some of the legal defenses available them usually do so at their own peril. See Malhotra v. Cotter Co., 885 F.2d 1305, 1310 (7th Cir. 1989) ("When a party moves for summary judgment on ground A, his opponent is not required to respond to ground B — a ground the movant might have presented but did not."). In this case, however, Bunnell himself raised the issue of pretext in his response, Conrail has addressed it, and Bunnell did not take advantage of his right under Local Rule 56.1 to file a surreply brief. The court finds that the pretext issue has been fairly presented and therefore addresses the issue below.
2. Treatment of Similarly-Situated White Employees
To establish the final element of his prima facie case for summary judgment purposes, Bunnell also must come forward with evidence that tends to show that Conrail treated similarly situated white employees more favorably than it treated him based on conduct of comparable seriousness. Bunnell alleges that engineer Shilling received better treatment with respect to the October 1996 incident and that conductor Stecher received better treatment with respect to the derailment on his train in 1997. Shilling and Stecher, who both are white, were not disciplined because of the incidents.
The relevant inquiry is whether the alleged conduct of the other employees is of "comparable seriousness" to Bunnell's conduct such that Conrail's failure to discipline the other employees supports the inference that Conrail disciplined Bunnell for discriminatory reasons. See Friedel v. City of Madison, 832 F.2d 965, 974 (7th Cir. 1987) (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n. 11 (1976) ("[P]recise equivalence in culpability between employees is not the ultimate question: as we indicated in McDonnell Douglas, an allegation that other `employees involved in acts against [the employer] of comparable seriousness . . . were nevertheless retained . . .' is adequate to plead an inferential case that the employer's reliance on his discharged employee's misconduct as grounds for terminating him was merely a pretext.") (citation omitted; all other alterations in McDonald)); Johnson v. Artim Transp. System, Inc., 826 F.2d 538, 544 (7th Cir. 1987) (where plaintiff "urges [the court] to compare violations of similar rather than identical rules, it may well be more helpful to focus on the nature of the misconduct"); Lloyd v. Bridgeport Brass Corp., 811 F. Supp. 401, 405-06 n. 4 (S.D.Ind. 1993) (the "relevant inquiry" in determining whether employees are "similarly situated" is whether the employees are "`involved in or accused of the same offense and are disciplined in different ways'") (quoting Rohde v. K.O. Steel Castings, Inc., 649 F.2d 317, 322 (5th Cir. Unit A 1981) (emphasis in Lloyd)). Cf. Ilhardt v. Sara Lee Corp., 118 F.3d 1151, 1155 (7th Cir. 1997) (plaintiff must show that he was treated differently under "identical circumstances").
Here, Bunnell has raised a factual dispute about whether he was treated less favorably than similarly-situated white employees. Based on Bunnell's account of what happened in October 1996, a reasonable jury could find that Bunnell did not commit any safety rule violations and therefore, like Shilling, should not have been disciplined. Similarly, based on Bunnell's version of what occurred when a car on his train derailed in January 1997, a reasonable jury could find that Bunnell was not responsible for the derailment and therefore, like Stecher, should not have been disciplined. Under this view of the facts, the decision to discipline Bunnell would raise an inference of race discrimination. Such an inference is sufficient for Bunnell to establish a prima facie case. As discussed below, however, creating a fact dispute about whether Bunnell actually deserved to be disciplined in 1996 and 1997 is not sufficient for Bunnell's claim to survive summary judgment under a pretext analysis.
B. Pretext
Bunnell's claims fail as a matter of law because he has not produced evidence that would allow a reasonable jury to find that Conrail's stated legitimate, non-discriminatory reasons for its disciplinary actions against Bunnell were pretexts for racial discrimination. Conrail asserts that it suspended Bunnell in November 1996 because Bunnell committed two safety rule violations on October 17, 1996. Conrail alleges that it suspended Bunnell in January 1997 because he caused a car on his train to derail on January 15, 1997. To survive summary judgment, Bunnell has the burden of coming forward with evidence that would allow a reasonable jury to find by a preponderance of the evidence that Conrail's stated reasons were not merely wrong as a factual matter but were false pretexts for illegal race discrimination.
A pretext for discrimination "means more than an unusual act; it means something worse than a business error; `pretext' means deceit used to cover one's track's." Kulumani, 224 F.3d at 684 (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146-48 (2000)). A plaintiff can establish pretext if he can show that the defendant's proffered reasons were either lies or completely lacking in factual basis. Mills v. Health Care Service Corp., 171 F.3d 450, 458 (7th Cir. 1999); Ghosh v. Indiana Dep't of Environmental Management, 192 F.3d 1087, 1091 (7th Cir. 1999).
Bunnell is not required to present direct evidence of pretext. He can establish pretext indirectly by producing evidence that Conrail's proffered reasons for disciplining him are not credible:
a plaintiff may accomplish this showing [of pretext] with evidence tending to prove that the employer's proffered reasons are factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the [employment decision]. . . . These formulations are simply different ways of recognizing that when the sincerity of an employer's asserted reasons for [disciplining] an employee is cast into doubt, a fact finder may reasonably infer that unlawful discrimination was the true motivation.Testerman v. EDS Technical Products Corp., 98 F.3d 297, 303 (7th Cir. 1996) (citation omitted); see also Stewart v. Henderson, 207 F.3d 374, 376 (7th Cir. 2000) (same); Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 289 (7th Cir. 1999) (same).
Bunnell argues that he has carried his burden on pretext by using two of the formulations the Testerman case (and others) recognized. First, Bunnell contends that there was no basis in fact for Conrail's decisions to suspend him. Second, he claims that the alleged factual bases for the decisions were insufficient to motivate Conrail to suspend him. Pl. Br. at 9-10. Regarding the 1996 suspension, Bunnell relies heavily on the final arbitration decision on the matter, which held that Conrail had not proved one of the rule violations it asserted and that the penalty Conrail assessed was disproportionate to the "technical violation" that the evidence supported.
Bunnell's pretext theory fails as a matter of law. There is no evidence that suggests that Conrail did not honestly believe the reasons it provided for Bunnell's suspensions. First, the record contains evidence of some factual basis for both suspension decisions. When Conrail suspended Bunnell, it had that evidence presented at the formal investigation hearings of the October 1996 and January 1997 incidents.
Regarding the October 1996 incident, eyewitness Parman testified that he believed Bunnell committed a three-step protection violation by turning the angle cock while the train was in motion. In addition, Parman testified and Bunnell acknowledged that Bunnell did not "protect his shove" by standing at the leading end of the moving cars. (Bunnell disputes that his conduct violated Rule 116, however.) The intermediate arbitration decisions upheld Bunnell's suspension based on this and other evidence. All of the arbitration panels apparently affirmed the finding of a Rule 116 violation (the "shoving" violation).
Regarding the January 1997 incident, the record contains evidence that Conrail suspended Bunnell because its investigators concluded that Bunnell was responsible for the derailment. See generally Whitaker Aff.
Second, Bunnell has not come forward with evidence that tends to show that the alleged safety rule violations were insufficient to motivate Conrail's decisions to suspend him. With respect to the October 1996 incident, Conrail found a violation of a critical safety rule. Regarding the January 1997 incident, Conrail imposed discipline under its progressive discipline policy for the derailment, another obvious safety concern. Even viewing the record evidence in the light reasonably most favorable to Bunnell, on this record, a reasonable jury could not conclude that Conrail's stated reasons for the disciplinary actions against Bunnell were baseless or insufficient to motivate Conrail's actions.
Bunnell's pretext argument essentially challenges the correctness of Conrail's application of its own rules and policies. However, "the overall correctness or desirability of the reasons proffered is not relevant to the determination of pretext." Baron v. City of Highland Park, 195 F.3d 333, 341 (7th Cir. 1999); Mills, 171 F.3d at 459 (to show pretext, plaintiff would have to produce evidence that evaluation of plaintiff's performance was dishonest, not merely mistaken); Stewart, 207 F.3d at 378 (allegedly erroneous implementation of employee ranking system was not evidence of pretext); see also Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853, 865 (7th Cir. 1997) (questioning management's judgment does not prove pretext).
It is true that there can be "a fine line between evidence that appropriately challenges the employer's proffered reasons as being unworthy of credence and evidence that merely shows that the employer made a mistake or a bad business judgment." Kralman v. Illinois Dep't of Veterans' Affairs, 23 F.3d 150, 156 (7th Cir. 1994). Bunnell's own interpretation of Conrail's rules and his assessment of his own performance ares not sufficient in this case, however, to create a genuine issue of material fact on the issue of pretext. See Sanchez v. Henderson, 188 F.3d 740, 746 (7th Cir. 1999) (pretext analysis "seeks to uncover the true intent of the defendant, not the belief of the plaintiff"); see also Jordan, 205 F.3d at 344 n. 9 (plaintiff's belief that her degree made her more qualified than other candidates was not relevant to pretext inquiry). The courts do not function as a "super-personnel department" in reviewing employment decisions. See, e.g., Ghosh, 192 F.3d at 1093 (affirming summary judgment despite plaintiff's contention that he was better qualified candidate for promotion); see also Jordan, 205 F.3d at 344 ("Discrimination laws serve only to prevent consideration of forbidden characteristics — like race — but they are not, as we have repeatedly noted, court-enforced merit selection programs.") (citation omitted).
By invoking the grievance procedures available under his union's collective bargaining agreement with Conrail, Bunnell availed himself of a forum established to decide whether Conrail applied its rules correctly and fairly. In fact, Bunnell obtained a very good result in those proceedings, at least with respect to his first suspension. This court is not such a forum. The court's pretext inquiry is limited to whether the summary judgment record contains evidence that would allow a reasonable jury to find that Conrail's stated reasons for suspending Bunnell were lies or phony reasons. See Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995) (pretext "means a lie, specifically a phony reason for some action"). Summary judgment is appropriate in this case because there is no such evidence.
Conclusion
Plaintiff Bunnell's claims under Title VII and Section 1981 are insufficient as a matter of law because he has failed to produce evidence of pretext. The court therefore GRANTS summary judgment to defendant Conrail. The court also DENIES Conrail's motion to strike and GRANTS Bunnell's motion for extension. Final judgment for defendant Conrail will be entered.
So ordered.