Opinion
No. 2:01-CV-424.
October 20, 2005
OPINION AND ORDER
Defendant Elgin, Joliet Eastern Railway Company ("EJE") filed a Motion to Reconsider this Court's June 16, 2005 Opinion and Order, which denied in part and granted in part Defendant's Motion for Summary Judgment. Defendant's Motion presents nothing new. Thus, for the reasons stated in the Court's previous opinion [Doc. 88], and for the reasons below, Defendant's Motion to Reconsider [Doc. 91] is DENIED.
BACKGROUND
Plaintiff Marc A. Titus brought this action against EJE, his former employer, alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Defendant EJE filed a Motion for Summary Judgment and after full briefing and oral argument, the Court granted the Motion as it related to Titus's claims of tortious interference, blacklisting and discrimination based on national origin, and denied the Motion relating to Titus's claim of race discrimination under Title VII and § 1981. Defendant EJE has now filed a Motion to Reconsider the Court's partial denial of summary judgment.DISCUSSION
Defendant EJE raises two points in support of its Motion to Reconsider: (1) that neither party argued that this case should be analyzed under the direct method; and (2) Titus's racial discrimination claim cannot proceed under either the direct or indirect method. Both points will be addressed in turn.
I. EJE's Claim That Neither Party Briefed Nor Argued This Case Under The Direct Method Of Proof Is Inaccurate.
The Court disagrees with EJE's contention that Titus did not address the direct method of proof for intentional discrimination in his Response in Opposition to Defendant's Motion for Summary Judgment [Doc. 73]. It is true that Titus "could have been more clear in drafting his response" to the summary judgment motion. (Pl.'s Resp. to Def.'s Mot. to Reconsider 3.) Nevertheless, for the following reasons, this Court still reads Titus's response to the summary judgment motion as stating a claim under the direct method.
Specifically, Titus cites Troupe v. May Dep't Stores Co., 20 F.3d 734 (7th Cir. 1994) as support for his claim of intentional discrimination. The Court in Troupe v. May Dep't Stores Co. identified three types of circumstantial evidence of intentional discrimination under the direct method of proof: (1) "suspicious timing, ambiguous statements oral or written, [and] behavior toward or comments directed at other employees in the protected group[;]" (2) evidence that "employees similarly situated to the plaintiff" but outside the protected class "received systematically better treatment[;]" or (3) "evidence that the plaintiff was qualified for the job in question but passed over in favor of (or replaced by) a person not having the forbidden characteristic and that the employer's stated reason for the difference in treatment is unworthy of belief, a mere pretext for discrimination." 20 F.3d at 736. Titus directly quoted the above discussion regarding the direct method of proof in his response to the summary judgment motion. ( See Pl.'s Resp. to Def.'s Mot. Summ. J. 20.) Accordingly, reviewing Titus's Response, despite its unclear references to the direct method, should have provided adequate notice to EJE that Titus was using the direct method to prove intentional discrimination. This Court, as it held in its prior Opinion, gives Titus the "benefit of the doubt" and concludes that Titus sufficiently argued his allegation of intentional discrimination under the direct method. (Opinion and Order 7.)
II. This Court Finds That There Are Sufficient Genuine Issues of Material Fact To Permit Titus's Racial Discrimination Claim To Proceed To Trial.
Defendant EJE argues that the facts in this case do not support a prima facie case of racial discrimination under either the direct or indirect method of proof (Def.'s Mem. Supp. Mot. to Reconsider 1.) But as this Court has already held, although Titus is unable to establish a case of racial discrimination under the indirect method of proof, "Titus has produced enough admissible circumstantial evidence [under the direct method] as required by the court in Troupe to create questions of material fact as to whether he was a victim of intentional discrimination." (Opinion and Order 7, 9.)
A genuine dispute about a material fact exists only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this determination, this Court must construe "all facts and reasonable inferences from the record in the light most favorable to . . . the non-moving party." Moser v. Ind. Dep't of Corr., 406 F.3d 895, 900 (7th Cir. 2005).
The following facts, when viewed "in the light most favorable" to Titus, could lead a reasonable jury to return a verdict for Titus at trial. First, several EJE employees testified that, despite rules to the contrary, sleeping on the job was a common occurrence at EJE. ( See Matlock Dep. 16:10-16; Brown Dep. 11:3-16; Austin Aff. ¶¶ 5-9.) EJE argues that there is a distinction between employees who are sleeping on the job and those that are caught sleeping. ( See Def.'s Mem. Supp. Mot. to Reconsider 4.) This distinction is less than persuasive given just how ubiquitous sleeping on the job was at EJE. In addition, according to an EJE employee, EJE management knew that employees took naps during their break times. ( See Matlock Dep. 16:10-22.) In fact, supervisors themselves, including Gerry Carr, also took naps. ( See Austin Aff. ¶¶ 12-13.)
EJE characterizes Titus's facts as "conclusory" and "inadmissible in opposition to a motion for summary judgment." (Def.'s Mem. Supp. Mot. to Reconsider 4.) The Court nonetheless finds that Titus pled sufficiently specific facts to show a genuine issue for trial. See Fed.R.Civ.P. 56(e).
More importantly, the distinction drawn by EJE between sleeping on the job and being caught sleeping on the job is demonstrably false in any event because employee Matlock (who is white) was caught sleeping the same night as Titus and yet nothing was done to Matlock — not a warning, not a letter of reprimand, and certainly not a termination. ( See Matlock Dep. 10:5-11:8, 21:5-7, 34:14-35:22, 39:18-24.) In fact, the only thing that happened to Matlock was an admonition from Gerry Carr, the person who caught him sleeping, that "you didn't see me tonight." ( Id. at 34:14-35:3.)
Lonnie Gregory, a thirty-year EJE employee and the person in the locomotive with Titus when he was caught sleeping, testified that he did not know of anyone who had been fired for sleeping during break time. (Gregory Dep. 4:14-15, 8:3-12, 14:21-24.) Yet, on August 20, 2000, Carr caught Titus sleeping during break time, and he was fired. ( See id. at 8:10-14, 9:13-18; 18; Titus Dep. 62:15-20, 68:15-21, 71:15-19.) As mentioned above, on that same night Matlock was also caught napping by Carr during break time, but he was neither fired, reprimanded nor given any demerits. ( See Matlock Dep. 10:5-11:8, 34:14-35:22, 39:18-24.) Carr's refusal to enforce the "no sleeping during break" rule to Matlock is especially questionable given that Matlock was previously caught sleeping on the job. ( See Matlock Dep. 20:2-21:4.)
The Court still concludes that evidence of probationary employees being terminated for safety rule violations generally "misses the mark" because it does not specifically involve violations of the sleeping rule. (Opinion and Order 9.) Titus's case is based on EJE's selective enforcement of the no-sleeping rule, not enforcement of safety rules generally.
EJE explains this apparent disparate treatment by pointing out that Titus was a probationary employee while Matlock was not, and thus it made perfect sense to treat them differently. (Def.'s Mem. Supp. Mot. to Reconsider 5-6.) As a result, according to EJE, sleeping during break time is a bigger deal when it's done by a probationary employee than when it is done by a non-probationary employee. But this distinction once again falls apart when the Court considers what happened to Gerald Austin who, like Titus, is black. ( See Austin Aff. ¶ 1.) Austin was a non-probationary employee (just like Matlock) who was accused of sleeping on the job by Carr. ( See id. ¶¶ 2, 19.) But instead of telling Austin that "you didn't see me tonight" — as he told Matlock — Carr actually tried to photograph Austin while he was sleeping most likely so that he would have proof of it. ( See id. ¶ 20.) Austin was then written up for sleeping on the job which resulted (due to earlier infractions) in his termination. ( See id. ¶ 21.)
EJE argues that Austin's threats and physical assault of Carr were the reasons for Austin's termination. (Def.'s Mem. Supp. Mot. to Reconsider 7.) But according to Austin's affidavit, Carr snuck onto the train when the lights were off and attempted to photograph him sleeping. Startled by the sense that someone was behind him, Austin abruptly turned around and his hand inadvertently hit Carr's camera. (Austin Aff. ¶¶ 20-21.) Thus, Austin's testimony could lead reasonable jurors to believe that he was terminated due to the selective enforcement of the no-sleeping rule based on race (as was Titus), and not because of Austin's physical assault of Carr. Austin's affidavit therefore may provide circumstantial evidence to Titus of intentional discrimination, specifically "behavior toward or comments directed at other employees in the protected group[,]" Troupe, 20 F.3d at 736, and does not require a mini-trial of Austin's claims, as argued by EJE, (Def.'s Mem. Supp. Mot. to Reconsider 7-8).
The above evidence provided by Titus demonstrates that sleeping on the job was a widespread practice and that enforcement of the no-sleeping rule was at best intermittent. More importantly, being caught sleeping during break is either a big deal — as EJE evidently thought it was when Titus and Austin were caught — or it is not, which is how EJE treated it when Matlock was caught. At bottom, it is for a jury to sort out what EJE's motives were for the actions it took against Titus.
CONCLUSION
For the reasons stated above, Defendant EJE's Motion to Reconsider [Doc. 91] is DENIED.
SO ORDERED.