Jones, Glenn E. v. Union Pacific ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2038
GLENN E. JONES,
Plaintiff-Appellant,
v.
UNION PACIFIC RAILROAD COMPANY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 3417—David H. Coar, Judge.
____________
ARGUED MAY 23, 2002—DECIDED SEPTEMBER 10, 2002
____________
Before FLAUM, Chief Judge, BAUER and ROVNER, Circuit
Judges.
BAUER, Circuit Judge. Plaintiff Glenn E. Jones sued
Union Pacific Railroad Company for violations of 42 U.S.C.
§ 2000e et seq. and 42 U.S.C. § 1981, after he was dis-
missed from his position for gross insubordination follow-
ing an incident at the rail yard where he worked. Jones
moved for summary judgment and Union Pacific responded.
The district court granted summary judgment in favor of
Union Pacific. Jones appeals, arguing the district court
erred procedurally in granting summary judgment sua
sponte without giving him notice and an opportunity to
respond; and that summary judgment should not have
been granted in favor of Union Pacific because disputed
2 No. 01-2038
issues of material fact remain. We affirm, finding Jones
has waived review of two of his three claims and that
the district court properly granted summary judgment on
the remaining claim.
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
On April 28, 1998, Jones was involved in the incident
which precipitated this suit. Jones worked a shift from
Thursday through Saturday, 8:00 a.m. to 4:30 p.m. On
the day in question, he left the shop where he worked
at 5:00 p.m. and walked across the rail yard tracks to-
ward an exit. At some point during the more than ten
minutes it took for Jones to cross nearly all the tracks
in the rail yard, Union Pacific Special Agent Brody observed
Jones walking across the tracks.2 (Under Illinois law,
1
The duties of “coach cleaners” involve cleaning and servicing
commuter rail cars after each trip. A “carman” performs a more
in-depth and lengthy service on rail cars, referred to as “rehabilita-
tion”.
2
Agent Brody was on surveillance duty at the Cal Avenue rail
yard because of significant trespassing problems encountered by
the railroad due, in part, to the fact that a City of Chicago auto
impound yard abuts the rail yard. From 1997 to 1998, some fifty-
eight persons were caught trespassing, and there were many
incidents of theft from the automobiles in the impound yard.
Agent Brody reported: “observed a black male carrying a hand-
bag walking south across the tracks towards 400 N. Francisco
(continued...)
No. 01-2038 3
railroad police have all the powers, while on railroad
property, of a full police officer.)
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 iden-
tification.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 side-
walk, 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 prop-
erty.) The Chicago Police and Agent Brody’s supervising
officer, Special Agent Finger, arrived a few minutes la-
ter. Neither Jones nor Agent Brody were arrested.
2
(...continued)
Street. The black, male was wearing a knit hat and soiled clothing
typical of the trespassers that frequent the yard.”
3
Both parties cite Union Pacific’s guideline for conducting “field
interviews”. The guideline provides, in relevant part, that an of-
ficer may approach and question any person if the officer can
articulate a “reasonable suspicion” that the person may be in-
volved in criminal activity. There is no dispute that trespassing
is “criminal activity”. See 625 ILCS 5/18c-7503(1)(a); 720 ILCS
5/21-3.
4 No. 01-2038
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 ex-
amine 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 the scene.
The Chicago Police and Special Agent Finger arrived mo-
ments after Agent Brody departed. While talking to Chi-
cago Police, Jones again referred to Agent Brody in rather
strong negative terms (“the motherfucker knows I’m an
employee. He’s just harassing me”). Special Agent Finger
suggested that they return to the rail yard to clear up
the issue. Jones asked the Chicago Police if he had “to
get in this motherfucker’s [Special Agent Finger’s] car”.
The record does not disclose whether Jones returned to
the rail yard with Special Agent Finger.
Jones was charged with insubordination and quarrel-
ing. 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
No. 01-2038 5
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 opportu-
nity 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 ra-
cially motivated. Instead, Jones stated that the officers
were patsies used to trump up charges against him be-
cause 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.” (empha-
sis 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-
4
In his recitation of the facts, Jones states that he had an
exemplary attendance and work-related injury-free record. How-
ever, Jones leaves out the fact that he was previously dismissed
in 1988 for insubordination (another Level 5 infraction), but
reinstated under a leniency program in 1989. Regardless, neither
of these facts were considered when Union Pacific decided to
discharge Jones.
6 No. 01-2038
tained the charge of insubordination and quarreling;
Jones was dismissed from his position. Jones then later
filed suit in federal district court alleging racial discrimina-
tion. 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 FED. R.
CIV. P. 56(c). Only genuine disagreement over material or
dispositive facts will forestall summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49
(1986). As we have stated before, “[i]n the employment
discrimination context, summary judgment is warranted
where ‘the evidence, interpreted favorably to the plaintiff,
could [not] persuade a reasonable jury that the employer
had discriminated against the plaintiff.’ ” Markel v. Bd. of
Regents of the Univ. of Wis. Sys., 276 F.3d 906, 910 (7th Cir.
2002) (quoting Palucki v. Sears, Roebuck & Co., 879 F.2d
1568, 1570 (7th Cir. 1989)).
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
No. 01-2038 7
v. United States, 831 F.2d 755, 759 (7th Cir. 1987). When
there are no issues of material fact in dispute, a dis-
trict 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 consider-
ing 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 sum-
mary 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 judg-
ment both parties were on notice that summary judgment
was under active consideration. And the defendant’s re-
sponse 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
8 No. 01-2038
raised no objection to the defendant’s request for sum-
mary 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 claims, we must first de-
termine whether they were properly presented for review.
In his opening brief in this court, Jones only asserted
the district court erred in granting summary judgment
to Union Pacific sua sponte and by finding no evidence
of discriminatory discharge. And in his reply brief, Jones
argued that Union Pacific’s argument—that Jones failed
to raise the discriminatory work assignments issue in his
EEOC charge—was waived in this court. However, the
district court specifically granted summary judgment on
the discriminatory work assignment claim by conclud-
ing that Jones had failed to show pretext for Union Pa-
cific’s proffered reasons for work assignments. Finally,
neither the plaintiff’s nor the defendant’s briefs raise
the issue of 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-
No. 01-2038 9
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 re-
quired 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 em-
ployment 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
5At some point, Jones apparently also argued direct discrimina-
tion. Union Pacific rebutted this argument in its’ appellate brief.
However, the district court only analyzed the issue under indi-
rect discrimination, and Jones abandoned any direct discrimina-
tion argument by arguing only pretext in his appellate brief. Sere,
852 F.2d at 287.
10 No. 01-2038
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 ad-
herence to Union Pacific’s rules and regulations regard-
ing employee conduct—and part four requires Jones to
demonstrate that other employees outside the pro-
tected class were treated more favorably in similar circum-
stances.
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 until their termination. Cf. Lim v. Tr. of Ind. Univ., No.
01-4295, slip op. at 8-9 (July 19, 2002) (finding plaintiff
failed to establish “that she was meeting IU’s legitimate
requirements regarding research and publishing.”); Sal-
vadori v. Franklin Sch. Dist., No. 01-3829, 2002 WL
1301393, slip op. at 10-11 (7th Cir. June 14, 2002) (finding
plaintiff “must show that she was performing well at
the time of her termination.”); Plair, 105 F.3d at 347.
The need to establish a prima facie case does not al-
ways 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
No. 01-2038 11
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 review-
ing 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 bur-
den 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 insubordi-
nation 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 legiti-
mate non-discriminatory reason for plaintiff’s discharge);
12 No. 01-2038
Stringel v. Methodist Hosp., 89 F.3d 415, 418 (7th Cir.
1996) (same).
Since the defendant offered a non-discriminatory rea-
son 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 indi-
rect 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
and that the actual reason was discriminatory. King v.
Preferred Technical Group, 166 F.3d 887, 892-93 (7th Cir.
1999); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
515 (1993).
Jones proffers several details from the events in ques-
tion as proof of Union Pacific’s racial animus. Jones as-
serts 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-
6
Jones argues that Agent Brody’s discriminatory animus,
evidenced by the description quoted above, influenced the decision
makers. We have long held that “statements by nondecision-
makers cannot satisfy a plaintiff ’s burden of proving discrimina-
tion.” E.g., Simmons, 289 F.3d at 492. The cases cited by Jones in
support of this argument provide a narrow exception when the
person is actively involved in the disciplinary process. See Russell
v. Bd. of Tr. of the Univ. of Ill. at Chi., 243 F.3d 336, 342 (7th Cir.
(continued...)
No. 01-2038 13
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 “quar-
relsome” 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 side-
walk. He has since admitted in his brief that the encoun-
ter began in the rail yard. Union Pacific interpreted its
employee conduct policy to include actions of an employee,
6
(...continued)
2001); Hunt v. City of Markham, Ill., 219 F.3d 649, 652 (7th Cir.
2000). In this case Agent Brody merely testified during the
investigation process.
14 No. 01-2038
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 Pa-
cific believed Jones engaged in improper behavior toward
Agent Brody, it could conclude that Jones violated com-
pany policy by being quarrelsome. Jordan v. Summers,
205 F.3d 337, 343 (7th Cir. 2000) (holding that an em-
ployer’s reasons for terminating an employee may be “mis-
taken, ill considered or foolish”, but “so long as [the em-
ployer] honestly believed those reasons pretext has not
been shown.”).
Jones also claims that Agent Brody was not his “supervi-
sor” under company policy because Brody did not super-
vise his actual work in the rail yard; that is, because
Agent Brody was not his “supervisor” he could not be guilty
of being “insubordinate” to a supervisor. Union Pacific
interpreted the term “supervisor” in the company policy
to include railroad police officers. The district court ex-
amined the common dictionary definition of “supervisor”
because the policy did not define the term. The court
found the term broadly included “anyone with direction
or control over others.” As Agent Brody is not only an
employee of the rail yard, but also possesses the full power
of a police officer while on rail property, the court con-
cluded he had direction and control over others. Once
again, Jones has failed to provide any evidence which
demonstrates that this interpretation of the policy is
unreasonable or blatantly false. Our reading of the def-
inition and the interpretation by Union Pacific comports
with that of the district court. As Jones was an employee
on railroad property, he should have listened to Agent
Brody and produced his identification. See Olsen v. Mar-
shall & Ilsley Corp., 267 F.3d 597, 602 (7th Cir. 2001);
Walker v. Glickman, 241 F.3d 884, 890 (7th Cir. 2001);
Adreani v. First Colonial Bankshares Corp., 154 F.3d 389,
No. 01-2038 15
398 (7th Cir. 1998); O’Connor v. DePaul Univ., 123 F.3d
665, 670 (7th Cir. 1997).
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 rea-
son 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]r-
guing 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 wheth-
er 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 Communica-
tions, 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
7
Jones attempts to cast this dispute as an issue of material fact
which would preclude summary judgment; however, as shown
above, the conflict is over immaterial and irrelevant facts Jones
has attempted to present as relevant. This key difference has
apparently even confused Jones. On page eighteen of his opening
brief, Jones states that “[g]enuine issues of material fact exist”,
yet, in his conclusion, on page twenty-five, Jones maintains that
“[i]t requires only a limited rehearsal of the previously cited
evidence to demonstrate the absent [sic] [absence] of a material
issue of fact”. In addition, we again note that it was Jones who
moved for summary judgment asserting there were no genuine
issues of material fact remaining in conflict.
16 No. 01-2038
believed Agents Brody and Finger over Jones) was dis-
honest. 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 noth-
ing about the charge or investigation being racially moti-
vated. 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 plain-
tiff 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 re-
examines 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 em-
ployee 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
No. 01-2038 17
employee being reinstated first. Additionally, Jones omitted
the fact that he was previously terminated for insubordi-
nation 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 pre-
textual. During the investigation which resulted in his
discharge, Jones stated that the encounter between him-
self 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