Butler v. Northeast Illinois Regional Commuter Railroad Corporation, The

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CRAIG D. BUTLER, )

)

Plaintiff, )

)

v. ) Case No. 17 C 7860

)

NORTHEAST ILLINOIS REGIONAL ) Judge Rebecca R. Pallmeyer

COMMUTER RAILROAD CORP., )

doing business as METRA, )

JAMES M. DERWINSKI, in his individual and )

official capacity as Metra Chief Mechanical )

Officer, ART OLSEN, in his individual and )

official capacity as Metra Director of )

Milwaukee Western Avenue District )

Mechanical, and SHON GEORGE, in his )

individual and official capacity as Metra )

Superintendent of Milwaukee Western )

Avenue District Mechanical, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Craig Butler worked as an electrician for Defendant Northeast Illinois Regional

Commuter Railroad Corporation ("Metra"). In August 2013, Metra terminated Butler's employment

for violation of Metra's policies on attendance and employee conduct, but Butler successfully

appealed his termination to the Special Board of Adjustment and was reinstated. Then in April

2016, Metra again terminated Butler's employment for attendance violations. This time, Butler's

appeal failed, and he filed claims with the Illinois Department of Human Rights ("IDHR") and the

U.S. Equal Employment Opportunity Commission ("EEOC"). This lawsuit, filed in October 2017,

followed. Butler asserts claims for race discrimination and harassment in violation of 42

U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; for

retaliation in violation of Section 1983 and Title VII; and for disability discrimination in violation of

the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.

The court dismissed claims against individual Defendants, dismissed Butler's harassment

allegations, and dismissed certain claims as time-barred [49]. Metra moves for summary

judgment on Butler's remaining claims. For the following reasons, the motion is granted.

BACKGROUND

The parties have submitted competing statements of fact, as required by Local Rule 56.1.

Those submissions support the following account. Butler is a 47-year-old African-American man.

(Amended Mem. in Supp. of Butler Opp. to Metra Mot. for Summ. J. ("Butler Opp.") [129], 1.) He

identifies as disabled because he suffers from sleep apnea, hypertension, high blood pressure,

and anxiety. (See Metra Reply to Butler Resp. in Opp. to Metra L.R. 56.1 Stat. of Undisputed

Facts ("Metra RSOF") [133] ¶ 62.)

Metra hired Butler as a journeyman electrician on November 14, 2011 and on December

19, 2011 awarded him the position of electrician in Metra's Milwaukee District Mechanical

Department. (Id. ¶¶ 1, 3.) The terms and conditions of Butler's employment were governed by

two sets of policies: (1) a collective bargaining agreement ("CBA") between Metra and the

International Brotherhood of Electrical Workers, of which Butler was a member, and (2) Metra's

Mechanical Department Directives, meaning internal employment policies and procedures

applicable to Mechanical Department employees. (Id. ¶¶ 2, 4; Metra Mem. in Supp. of Mot. for

Summ. J. ("Metra Mot.") [123], 2.)

On August 16, 2013, Metra terminated Butler's employment for violations of Metra’s

attendance and employee conduct policies. (See Metra RSOF ¶¶ 19-26.) Butler appealed his

termination to an administrative body called the Special Board of Adjustment. (See id. ¶ 27.) In

a ruling dated September 5, 2014, the Special Board reinstated Butler's employment effective

September 26, 2014. (Id. ¶¶ 27-28; Special Board Award, Ex. E to Metra L.R. 56.1 Stat. of

Undisputed Facts [125-5], 2; Butler Employee Personnel Record, Ex. J to Metra L.R. 56.1 Stat.

of Undisputed Facts [125-10], 3.) The ruling specified that the Special Board was granting Butler

"one last chance to be a safe and reliable employee . . . ." (Special Board Award 2.) Referencing

this "last chance" condition, the Board further stated, "[Butler] should understand that any future

infractions of the Carrier's rules, could result in the permanent termination of his services." (Id.;

see also Metra RSOF ¶ 30.) The last chance condition of Butler's reinstatement applied

indefinitely. (See Metra RSOF ¶ 33.) On April 22, 2016, Metra again terminated Butler's

employment, for violation of the last chance condition. (Metra RSOF ¶ 54.) After unsuccessfully

appealing that decision (id. ¶¶ 55-56), Butler filed this lawsuit arising out of his second termination

and the events leading up to it.

A. Metra's Progressive Discipline Policy

Mechanical Directive No. 7 sets forth Metra's "Progressive Discipline Policy." (Metra

RSOF ¶ 6.) The policy sets forth five steps that carry escalating disciplinary consequences up to

and including termination, which is Step Five. (See id. ¶ 7.) At Step One, an employee receives

a letter of reprimand; at Steps Two, Three, and Four, an employee is suspended from work for

three, five, and ten days, respectively; and at Step Five, an employee is terminated. (See id. ¶ 7.)

For violations that occur within less than two years of cumulative active service, Metra assesses

discipline one step at a time. (Id. ¶ 11.) Each step carries a two-year probationary period,

meaning that an employee starts again at Step One if he completes two years of cumulative active

service without incurring additional discipline. (Id. ¶¶ 11-13.)1

For minor infractions, including absenteeism and tardiness, Metra employees receive

"verbal and superintendent conferences" before they are charged with formal "steps" of discipline.

(Id. ¶ 9; see also id. ¶ 38 (stating that an employee receives a verbal warning for a first

occurrence, a conference with a superintendent for a second occurrence within a twelve-month

period, and charges under the progressive discipline system for additional violations within a

twelve-month period).) Under the CBA, an employee has a right to a hearing before Metra

assesses discipline against him. (See id. ¶ 8.) A "discipline committee," rather than the hearing

officer or witnesses, decides whether to assess discipline following a hearing. (Id. ¶ 10.)

1 For Step One, the probationary period is one year if the employee elects to waive

a hearing. (See id. ¶ 13.)

Thereafter, an employee has a right under the CBA to file a grievance. (Id. ¶¶ 15; Aff. of Danielle

Gauthier, Ex. M to Metra L.R. 56.1 Stat. of Undisputed Facts ("Gauthier Aff.") [125-13] ¶ 11.)

Alternatively, the employee can appeal the decision to the Special Board of Adjustment, which is

comprised of a referee and neutral member, an employee member, and a carrier (i.e., employer)

member. (See Metra RSOF ¶ 17; Gauthier Aff. ¶ 11; Special Board Award 1; Metra Mot. 3.)

B. Butler's August 2013 termination and related events

The events that led to Butler's August 2013 termination began in the first ninety days of

his employment at Metra. (See Metra RSOF ¶ 21.) During that time, Butler violated Metra's

absenteeism policies and Metra assessed Step One discipline against him. (See id. ¶¶ 19-21.)

Butler again violated attendance-related rules on March 2, 2012, March 9, 2012, and March 15,

2012. (Id. ¶¶ 22-24.) After the March 2 and 9 violations, Metra assessed Step Three discipline

against Butler (see id. ¶¶ 22-23), and after the March 15 violation, Metra assessed Step Four

discipline against him. (See id. ¶ 24.) Approximately a year and a half later, on August 16, 2013,

Metra determined that Butler had violated a rule of employee conduct by reading a newspaper

after his scheduled break. (Id. ¶ 25.) Because Butler was in Step Four of the progressive

disciplinary policy at the time, the violation resulted in termination. (See id. ¶¶ 25-26.) Butler

denies that he violated the relevant rule of employee conduct and, as noted, successfully

appealed his termination. (See id. ¶¶ 25-27.) The Special Board of Adjustment determined that

although Metra "had met its burden of proof . . . and had proper justification for assessing

discipline," "the discipline assessed for [the newspaper infraction] is excessive." (Special Board

Award 2.) The Special Board reinstated Butler's employment, subject to the indefinite last chance

condition referenced above. (Id.) The Special Board made its decision independently, but it was

Metra's responsibility to enforce the terms and conditions of Butler's reinstatement, including the

last chance condition. (See Metra RSOF ¶¶ 29, 31, 32.) It is uncontested that the last chance

condition effectively put Butler on permanent Step Four status. (See Butler Opp. 4, 7; Metra Reply

in Supp. of Summ. J. Mot. ("Metra Reply") [131], 7.)

C. Butler's April 2016 termination and related events

Following his reinstatement on September 26, 2014, Butler was placed on a medical leave

of absence from October 3, 2014 through March 12, 2015, for a condition(s) undisclosed in the

record. (Metra RSOF ¶¶ 27, 34.) After Butler returned from leave, he violated a Metra policy that

"requires an employee to provide valid documentation for an absence due to illness" when he has

already used his three allotted sick days. (See id. ¶¶ 35-39.) Those violations were on March 27

and 30, 2015, which Metra treated as one occurrence, and April 6, 2015, which Metra treated as

a second occurrence. (See id. ¶ 39.) Butler received a superintendent conference, rather than a

disciplinary step, for those occurrences. (See id. ¶¶ 38-39.) One month after his return from

leave, on April 14, 2015, Butler again went on a medical leave of absence, again for reasons not

stated in the record. (Id. ¶ 40.) Butler returned to work on or about September 2, 2015. (Id.)

By February 23, 2016, Butler had exhausted his three allotted sick days. (Id. ¶ 41.) On

that date, Butler "called off work and requested use of a sick day." (Id. ¶ 42.) Art Olsen, one of

Butler's supervisors, instructed him to provide "upon his return" "medical documentation

confirming he was seen by a physician on February 23, 2016 to support his absence due to

illness." (Metra Mot. 4; Metra RSOF ¶ 43.) Butler did not in fact visit a physician on that date,

but at some point after February 23—on a date the parties do not specify—he submitted doctor's

notes dated March 2, 2016 and March 29, 2016 to support the absence. (Id. ¶¶ 44, 45.)2 Olsen

2 As discussed below, Metra eventually held a hearing concerning Butler's

attendance violations. The parties do not provide the date the hearing began, but the court

located it in the record: the hearing began on March 24, 2016. (See Apr. 15, 2016 Hearing Tr.,

Ex. T to Metra L.R. 56.1 Stat. of Undisputed Facts [125-22], 4:2-4.) Metra's Local Rule 56.1

Statement of Facts, which Butler does not dispute, suggests that Butler provided both notes

before the hearing began. (See Metra RSOF ¶¶ 43-49; see also Metra Mot. 4 ("After the notice

of hearing was issued, Plaintiff submitted two notes . . . dated March 2, 2016 and March 29,

2016 . . . . Plaintiff was told by Metra that the notes did not support his absence due to illness of

February 23, 2016. He was given the opportunity to supplement the documentation prior to the

commencement of the hearing, but failed to do so.").) Metra cannot be correct that Butler

submitted both notes before the hearing began on March 24, because the doctor did not write the

second note until March 29. Accordingly, the court assumes that Butler submitted the first note

sometime after February 23 but before the hearing began on March 24, and submitted the second

note on or after March 29.

informed Butler that because the note dated March 2, 2016 did not reflect a doctor's visit on the

date of the absence, it did not satisfy Metra's "valid documentation" requirement. (Id. ¶¶ 46, 48.)3

"Valid documentation," Metra policy provides, is "anything that would justify an employee's

absence on a particular day that was missed." (Id. ¶ 37.)4 Metra issued Butler a notice of hearing

concerning the February 23, 2016 absence and afforded him "additional time to submit valid

documentation" before the hearing. (Id. ¶¶ 47, 49.) The hearing commenced on March 24, 2016.

(Apr. 15, 2016 Hearing Tr. 4:2-4.) During the hearing, Butler requested a recess to retrieve

supplemental documentation. (See id. ¶ 50.) As Butler was crossing a street during the recess,

he fell and injured his knee. (Id. ¶ 50; see Ex. C to Am. Compl. ("Attachments to EEOC

Complaint") [37-1], 1.) Metra postponed the completion of the hearing as a result of the injury.

(See Metra RSOF ¶ 51.)

At some point before the hearing reconvened, Butler submitted the second doctor's note

dated March 29, 2016. In that note, Butler's doctor wrote that Butler visited his office on March

29 and had been under his care since March 21, 2012. (Doctor's Notes, 2.) The rest of the note

is illegible. (See id.) Olsen testified during his deposition that this note did not constitute valid

3 Again, although Metra's RSOF indicates that Olsen made this determination for

both doctor's notes simultaneously, the chronology of events establishes that he initially made

that determination only for the note dated March 2.

4 Metra does not explain in its briefing or its Local Rule 56.1 statement why the

doctor's note did not satisfy this broad definition merely because it failed to establish that Butler

had visited a doctor on the date of his absence (February 23, 2016). But the court notes that

during his deposition, Olsen testified that in the March 2 note, Butler's doctor wrote that Butler

"was able to return to work on 2/24/2016." (Olsen Deposition, Ex. N2 to Metra L.R. 56.1 Stat. of

Undisputed Facts [125-16] ("Olsen Dep."), 41:16-19; see Doctor's Notes, Ex. I to Metra L.R. 56.1

Stat. of Undisputed Facts [125-9], 1).) Yet according to Olsen, Butler did not return to work on

February 24. (Olsen Dep. 41:18-19.) Although neither party has remarked on this, Olsen's

testimony confirmed that this issue influenced his determination that the note did not justify

Butler's absence. (Id. at 41:16-19.) Butler, for his part, argues that Olsen lacked the authority to

make that determination, and that only Metra's medical director, Molly Blechl, could determine the

sufficiency of medical documentation. (Butler Resp. in Opp. to Metra L.R. 56.1 Stat. of Undisputed

Facts ("Butler RSOF") [126] ¶ 48.)

documentation for Butler's February 23, 2016 absence not only because it failed to show that

Butler visited a doctor on February 23, but also because it was "too vague." (Olsen Dep. 50:18-

24; Metra RSOF ¶ 48 (citing same).)

Metra reconvened Butler's hearing on April 15, 2016. (Metra RSOF ¶ 51.) Butler provided

no additional medical documentation to support his February 23, 2016 absence. (Id. ¶ 52.)

Accordingly, on April 22, 2016, Metra disciplined Butler for violating the absenteeism policy.

(Id. ¶ 53.) Because the violation was Butler's third within a twelve-month period, the discipline

took the form of a step (see id. ¶ 38) and violated the last chance condition of

Butler’s reinstatement. (Id. ¶ 54.) Metra, therefore, terminated his employment; the record does

not reveal which Metra official made this decision. (Id. ¶¶ 54, 56.) Butler appealed the termination

directly to the Special Board of Adjustment, and the Special Board affirmed Metra's decision.

(Id. ¶¶ 55-56.) As detailed below, Butler does not dispute that the basis for his termination was

the violation of Metra's absenteeism policy, which itself violated the last chance condition of

reinstatement. Rather, Butler alleges that Metra imposed unduly harsh discipline for the violation

because of Butler's race and disability, and in retaliation for Butler's filing of an EEOC complaint

against Metra in 2013.

On July 15, 2016, Butler filed a complaint against Metra with the IDHR and the EEOC.

(Metra RSOF ¶ 59; Ex. B to Am. Compl. ("July 2016 EEOC Complaint") [37-1].) Butler alleged

that Olsen required him to provide doctor's notes for the February 23, 2016 absence, and then

determined that the notes were inadequate, because of his race and disabilities, and because

Butler had filed an EEOC complaint against Metra in 2013. (See Attachments to July 2016 EEOC

Complaint.) Butler also alleged that Metra subjected him to the last chance condition of

employment indefinitely, and applied that condition when he violated the absenteeism policy in

2016, for the same reasons. (See id.) On August 2, 2017, Butler received notice of his right to

sue Metra in connection with the July 2016 EEOC complaint. (See Ex. A to Am. Compl. ("Right

to Sue Letter") [37-1]).)5 Butler filed this lawsuit on October 31, 2017.

DISCUSSION

Summary judgment is appropriate when "there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "The movant

bears the burden of demonstrating the absence of genuine issues of material fact." LaRiviere v.

Bd. of Trs. of S. Ill. Univ., 926 F.3d 356, 359 (7th Cir. 2019). If the movant meets its burden, the

non-moving party must "come forward with specific facts showing that there is a genuine issue

for trial." Id. (internal quotation marks omitted). On a motion for summary judgment, the court

construes all facts and draws all reasonable inferences in favor of the nonmoving party. See

Mollet v. City of Greenfield, 926 F.3d 894, 896 (7th Cir. 2019).

A. Preclusion under the Railway Labor Act

Metra argues, first, that Butler's claims are governed by the CBA and are therefore

precluded under the Railway Labor Act, 45 U.S.C. § 151 et seq. The RLA requires parties to

resolve "minor disputes" in arbitration rather than in court. Carlson v. CSX Transp., Inc., 758 F.3d

819, 831 (7th Cir. 2014). "Minor disputes are those 'growing out of grievances or out of the

interpretation or application of agreements concerning rates of pay, rules, or working conditions.'"

Id. at 831 (quoting 45 U.S.C. § 153). Minor disputes can be "conclusively resolved" by interpreting

a CBA. Id. at 832. By contrast, the RLA generally "does not require arbitration of claims asserting

rights established by state or federal law independent of a collective bargaining agreement." Id.

at 833. For example, claims that an employer rejected an employee's reinstatement application

"because of her sex and in retaliation for protected activity" are independent of a CBA. Id. This

is because such claims "depend on a 'factual inquiry into any retaliatory [or discriminatory] motive

of the employer' rather than on an interpretation of the [CBA]." Id. (quoting Hawaiian Airlines, Inc.

5 Metra states that Butler's July 2016 EEOC charge "was dismissed on August 21,

2014 for lack of evidence." (Metra RSOF ¶ 59.) But the EEOC could not dismiss a complaint it

had not yet received, so the court assumes Metra is referring to Butler's 2013 EEOC complaint.

v. Norris, 512 U.S. 246, 266 (1994)).

According to Metra, Butler's claims are "minor disputes" about (1) the disciplinary process

provided to him under the CBA and (2) the "interpretation, application and implementation" of the

last chance condition of his reinstatement. (Metra Mot. 15.) Metra also emphasizes that the last

chance condition was an "independent and binding decision" of the Special Board of Adjustment

and that Butler appealed his April 2016 termination directly to the Board. (Id.) The court assumes

that an appeal to the Special Board of Adjustment constitutes the arbitration called for in the RLA.

(See Metra RSOF ¶ 16 (stating that the RLA "requires dispute adjudication through a final and

binding arbitration between the carrier representative, the union representative, and a third-party

neutral that acts as the board chairman"); Butler RSOF ¶ 16 ("disputing" this statement only in the

sense that the RLA has additional requirements concerning arbitration).) The court does not

agree with Metra that the RLA precludes Butler's claims. Although Butler argues that the last

chance condition was impermissible under the CBA (see Butler Opp. 9-11)—as well as

inconsistent with the Special Board Award and Metra disciplinary policies (see id.)—Butler's

claims depend on allegations that Metra enforced the last chance condition because of Butler's

race, disability, and 2013 EEOC complaint. These claims can be resolved only through a factual

inquiry into Metra's discriminatory or retaliatory motive, if any. See Carlson, 758 F.3d at 833.

Butler's claims, therefore, are not precluded.

B. Race discrimination in violation of Title VII

Citing an excerpt of Butler's deposition testimony, Metra contends that Butler's claims for

race discrimination under Title VII are based on just two allegations. (See Metra RSOF ¶ 58;

Metra Mot. 11.) The first is that Metra "never issued [Butler] standard tools to do [his] job

effectively in a timely manner like all the other journeym[en] who are non-Black. . . ." (Butler

Deposition, Ex. B to Metra Mot. ("Butler Dep.") [125-2], at 38:8-13; Metra RSOF ¶ 58.) The

second is that in assessing discipline against him in March 2012 for absences, Metra improperly

treated consecutive absences as more than one occurrence. (See Butler Dep. at 38:19-39:9;

Metra RSOF ¶ 58.)6 Metra argues that Butler did not file an EEOC charge within 300 days of

these occurrences and that his Title VII claim is therefore time-barred. (See Metra Mot. 11; see

also, e.g., Swanson v. Vill. of Flossmoor, 794 F.3d 820, 825 (7th Cir. 2015) ("[T]o bring a Title VII

claim . . . a plaintiff must file a complaint with the EEOC within 300 days of experiencing the

complained-of discrimination.")). Butler does not dispute this fact. Accordingly, the court grants

Metra's motion for summary judgment on this portion of Butler's Title VII race discrimination

claim.7

The court's analysis is not finished, however. A fair reading of Butler's complaint and his

summary judgment briefing indicates that his claim is also based on other allegations. Namely,

Butler alleges that Metra required him to justify his February 23, 2016 absence with a doctor's

note reflecting a doctor's visit on that date—but did not require the same of similarly situated, non-

African-American employees. (See, e.g., Attachments to July 2016 EEOC complaint at I.) Butler

also alleges that Metra applied the last chance condition of reinstatement against Butler but not

against similarly situated, non-African-American employees. (See, e.g., id. at V; Butler Opp. 10

(arguing that the condition was "tailor-made for" Butler).) These actions, Butler alleges, led to his

unlawful termination in April 2016.

The Seventh Circuit "recently discarded the distinction between direct and indirect

methods of proof in employment discrimination cases, and clarified that all evidence must be

evaluated as a whole." Lauth v. Covance, Inc., 863 F.3d 708, 715 (7th Cir. 2017) (citing Ortiz v.

Werner Enters., Inc., 834 F.3d 760, 765-66 (7th Cir. 2016)). "Thus, the proper inquiry . . . is

6 In its motion, Metra refers to discipline imposed in March 2015 (see Metra Mot.

11), but Metra's accompanying filings show that the events in question were in 2012. (See, e.g.,

Metra RSOF ¶¶ 22-24, 58 (referencing absences in March 2012); Butler Dep. 38:18-39:9

(testifying that he was absent from work because he was incarcerated); Butler RSOF ¶ 8 (stating

that Butler was incarcerated in 2012).)

7 A race discrimination claim can also be brought under 42 U.S.C. § 1981, which

has a four-year statute of limitations. See, e.g., Riley v. Elkhart Cmty. Schs., 829 F.3d 886, 891

(7th Cir. 2016). As neither side has addressed this, the court also declines to do so.

whether a reasonable jury could determine, based on all of the record evidence," that a protected

characteristic "was the cause of [plaintiff's] termination." Lauth, 863 F.3d at 715; see LaRiviere,

926 F.3d at 359 (in race discrimination suits under Title VII, the question a court "seek[s] to answer

is [w]hether a reasonable juror could conclude that [the plaintiff] would have kept h[is] job if [he]

had a different ethnicity, and everything else had remained the same" (internal quotation marks

omitted)). In evaluating the evidence, "courts may draw upon the familiar McDonnell Douglas

burden-shifting framework to determine if triable issues exist." LaRiviere, 926 F.3d at 359-60

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); see Volling v. Kurtz Paramedic

Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016) (stating that the McDonnell Douglas approach is

"a common, but not exclusive, method of establishing a triable issue of intentional discrimination"

in Title VII litigation (internal quotation marks omitted)). Both Metra and Butler have relied on the

McDonnell Douglas framework, so the court refers here to that framework as well.

Under the McDonnell Douglas approach, Butler "has the initial burden of establishing a

prima facie case of discrimination . . . [by] showing that (1) [he] is a member of a protected class,

(2) [his] job performance met [the employer's] legitimate expectations, (3) [he] suffered an adverse

employment action, and (4) another similarly situated individual who was not in the protected

class was treated more favorably than the plaintiff." LaRiviere, 926 F.3d at 360 (internal quotation

marks omitted). Butler argues that he has established a prima facie case because he is African-

American and suffered an adverse employment action. (Butler Opp. 8.)

More problematic for Butler are the requirements that he establish satisfactory job

performance and more favorable treatment of other workers. Butler does not dispute that Metra

terminated him in April 2016 because he violated the last chance condition of his reinstatement,

by violating Metra's absenteeism policies on three occasions within a twelve-month period. Butler

appears to argue that he was nonetheless performing his job duties satisfactorily because he

either complied with, or thought he was complying with, Metra's absenteeism policies. For

example, Butler contends that he should have been allocated more sick days; he "believed he

[still] had available sick time" on the relevant occasions; he was "surprised" to learn that the last

chance condition was still in effect in 2016; Olsen initially informed him "that he did not need a

doctor's note" to support his February 23, 2016 absence; and the Metra medical director should

have, but did not, review the doctor's notes Butler submitted at some time after the February 23

absence. (Butler Opp. 4-5, 11.) In support of these arguments, Butler has either cited no portion

of the record at all, or to entire depositions and hearing transcripts without page numbers. (See

id.; see also, e.g., Butler RSOF ¶¶ 8, 48.) These inadequately-supported assertions do not create

a dispute of fact about Butler's satisfactory performance. See, e.g., Boss v. Castro, 816 F.3d 910,

914 (7th Cir. 2016) (Local Rule 56.1 requires, among other things, "specific cites to the record,"

and the district court can demand "strict compliance" with the rule); Friend v. Valley View Cmty.

Unit Sch. Dist. 365U, 789 F.3d 707, 710-11 (7th Cir. 2015) (citations "to depositions without

identifying the corresponding deponent or the specific page number(s) on which the asserted fact

can be found" are "wholly inadequate" for purposes of L.R. 56.1).

Butler also suggests that his job performance was satisfactory because Metra did not

prove the contrary. To this end, Butler maintains that the April 2016 hearing was unfair because

Metra's medical director was not present; Olsen improperly served as "both the charging party"

and Metra's witness at the hearing; and Metra should have continued the hearing for a second

time until Butler was no longer "under his doctor's care." (Butler Opp. 4-6.) Even construed

generously, these arguments do not address satisfactory job performance. They instead appear

to be challenges to the fairness of the hearing procedure. And again, Butler has not supported

these arguments with proper cites to the record, so the court disregards them. See Boss, 816

F.3d at 914; Friend, 789 F.3d at 710-11. What remains is undisputed evidence that Butler violated

Metra's absenteeism policies three times within a twelve-month period even before the incident

on February 23, 2016. The record also contains the Special Board's determination in September

2014 that Metra "had met its burden of proof . . . and had proper justification for assessing

discipline" for earlier violations. (Special Board Award 2.) Butler has not presented evidence that

his job performance satisfied Metra’s legitimate expectations. See LaRiviere, 926 F.3d at 360.

Nor has Butler presented evidence from which a jury could find that Metra enforced the

absenteeism policy less strictly against non-African-American employees. See id. As previously

mentioned, Butler contends that neither the CBA nor Metra's policies permit an indefinite last

chance condition of reinstatement. (See, e.g., Butler Opp. 7, 9-11.) Butler appears to argue that

Metra imposed this unauthorized condition because he is African-American. But it is not clear to

the court that the last chance condition of reinstatement violated CBA or Metra policies in the first

place. Butler notes that the CBA requires, when the Special Board determines that Metra imposed

excessive discipline on an employee, that "the record shall be cleared or the discipline reduced

or modified." (Id. at 9 (quoting CBA Rule 29(h)).) Indeed, the Special Board determined that

termination was overly harsh discipline for Butler's allegedly reading a newspaper during his shift.

By imposing the indefinite, last chance condition of employment, Butler asserts, the Special Board

failed to "reduc[e] or modif[y]" Butler's discipline. (Butler Opp. 9-10.) To the contrary: Metra had

originally terminated Butler; by reinstating Butler's employment, even under an indefinite last

chance condition, the Board explicitly reduced his penalty. There was no violation of CBA Rule

29(h). Butler also admits that the Special Board set the terms of his reinstatement through an

appeal process for which Metra and CBA policies provide. (Metra RSOF ¶¶ 15-16, 31-32.)

More importantly, Butler has offered no evidence that Metra treated any similarly situated,

non-African American employees differently with regard to a last chance condition of

reinstatement. Metra, for its part, states that the Special Board reinstated a different Metra

employee ("L.W.") on a last chance condition of employment. (Id. ¶ 67.) As with Butler's last

chance condition, the Special Board did not put an expiration date on L.W.'s last chance condition.

(See Exhibits to Gauthier Decl. [125-14], 5.) Although Metra does not specify L.W.'s race (see

id.; Metra RSOF ¶ 67), Metra does state that it ultimately terminated L.W. when he or she violated

the condition. (Metra RSOF ¶ 68.) This evidence rebuts any claim that the indefinite last chance

condition of Butler's employment violated CBA or Metra policies, or that Metra applied the

condition to Butler because of his race.

Butler also appears to contend that, if he had not been African-American, he would have

received a step lower than five for his violation of the absenteeism policy in February 2016. Such

an argument could have traction if Butler could show that other workers were not held to the "Step

Five" standard under circumstances like these—that is, if Butler offered evidence that Metra

treated "another similarly situated individual who was not in the protected class . . . more

favorably." LaRiviere, 926 F.3d at 360. During fact discovery, Butler did not identify any such

individual. In response to Metra's Local Rule 56.1 Statement of Undisputed Facts, Butler states

that he now remembers relevant information: specifically, Butler's former union representative

once told him that a now-retired Metra employee "took between 10 and 15 days' consecutive

unscheduled leave without incurring [d]isciplinary steps." (Butler RSOF ¶ 69.) Butler cites

nothing in the record to support this contention (which is hearsay in any event), nor does he

identify the purportedly favored employee's race. And assuming the union representative's

account is accurate, the court notes that it may be that the employee did not incur disciplinary

steps because he complied with Metra's absenteeism policies when he took the unscheduled

leave. Butler's only other proffered support for his claim is the assertion, unmoored to additional

evidence, that other African-American employees at Metra "are raising similar claims of racial

bias . . . ." (Butler Opp. 8.) Butler has not disclosed the nature of these other claims, when and

by whom they were made, or how they relate to Butler’s own claim of disparate treatment

Metra, for its part, has submitted evidence that it did in fact discipline a non-African-

American employee "for failure to provide valid documentation in support of his absence due to

illness." (Metra RSOF ¶ 65; Gauthier Aff. ¶ 23).) Butler does not dispute this evidence. (See

Butler RSOF ¶ 65.) Metra further contends that it terminated this other employee because at the

time of the infraction, he was at Step Four of the progressive disciplinary policy. (Metra

RSOF ¶ 66; Gauthier Aff. ¶ 23.) Butler does dispute this point; he merely contends that Metra

provides insufficient information to support it. (See Butler RSOF ¶ 66.) Butler's "equivocation,"

however, is "an admission, not a denial." Karazanos v. Madison Two Assocs., 147 F.3d 624, 626

(7th Cir. 1998); L.R. 56.1(b)(3)(C) ("All material facts set forth in the statement required of the

moving party will be deemed to be admitted unless controverted by the statement of the opposing

party."); see also, e.g., Ace Hardware Corp. v. Marn, Inc., No. 06-CV-5335, 2008 WL 4286975,

at *2 n.7 (N.D. Ill. Sept. 16, 2008) ("[A] party may not, at the summary judgment stage, rely on

statements that it does not have sufficient information to respond to a statement of fact." (citing,

inter alia, Karazanos, 147 F.3d at 626)). Butler has not offered evidence that any person outside

the protected class was treated more favorably under similar circumstances.

Considering the record as a whole, no reasonable juror could find that Butler's race was

the cause of the adverse employment actions Metra took against him. LaRiviere, 926 F.3d at

359; Lauth, 863 F.3d at 715. The court, therefore, grants Metra's motion for summary judgment

on Butler's Title VII race discrimination claim.

C. Race discrimination in violation of Section 1983

"[T]he same standards for proving intentional discrimination apply to Title VII and § 1983

equal protection." Radentz v. Marion Cnty., 640 F.3d 754, 757 (7th Cir. 2011); see also, e.g.,

Barrett v. Ill. Cmty. Coll. Dist. No. 515, No. 15 CV 2334, 2019 WL 3554109, at *6 (N.D. Ill. Aug. 5,

2019) (same). Butler's Section 1983 claim based on race discrimination fails for the same reasons

as his Title VII claim, and the court grants Metra's motion for summary judgment on that claim, as

well.

D. Retaliation in violation of Title VII

Butler's retaliation claim—that Metra took adverse employment actions against him in

retaliation for his filing of the 2013 EEOC complaint—fails for similar reasons.8 (See Am.

8 Metra contends that Butler "also attributes his retaliation claim to his complaint of

discrimination filed on July 15, 2016, which he contends led to his April 22, 2016 termination."

(Metra Mot. 9.) In support of that argument, however, Metra cites its Local Rule 56.1 statement—

which states that Butler's retaliation claim is based on his 2013 EEOC complaint. (See id. (citing

Metra RSOF ¶ 60).) Accordingly, and because a retaliation claim concerning the 2016 EEOC

Compl. [37] ¶¶ 62-65; Metra RSOF ¶ 60; Butler Dep. 74:12-75:24; Attachments to July 2016

EEOC complaint at II, VI (alleging, inter alia, that when Metra required Butler to provide a doctor's

note to support his February 23, 2016 absence, refused to accept the doctor's notes he submitted,

and terminated him in April 2016, it acted with a retaliatory motive).) "Title VII prohibits employers

from retaliating against employees for complaining about discrimination." Mollet, 926 F.3d at 896

(citing 42 U.S.C. § 2000e-3(a)). "To establish a prima facie case of retaliation under Title VII,

[Butler] must show: (1) he engaged in a statutorily protected activity, (2) his employer took a

materially adverse action against him, and (3) there is a causal link between the protected activity

and the adverse action." Id. "To prove causation, the plaintiff must show that the desire to

retaliate was the but-for cause of the challenged employment action," meaning that it "would not

have occurred in the absence of the alleged" protected activity. Robinson v. Perales, 894 F.3d

818, 830 (7th Cir. 2018) (internal quotation marks omitted); see also Mollet, 926 F.3d at 897

(holding that a plaintiff must show that "the protected activity was the but-for cause of the adverse

action," not merely "a but for cause"). "As with . . . discrimination claim[s]," the Seventh Circuit

"no longer recognize[s] a distinction between direct or indirect evidence, and instead consider[s]

all of the record evidence to determine whether a causal link exists." Lauth, 863 F.3d at 716

(citing Ortiz, 834 F.3d at 765-66)).

Metra does not dispute that Butler's filing of the 2013 EEOC complaint was a statutorily

protected activity, nor that the April 2016 termination was an adverse employment action. Rather,

it contends that Butler has offered no evidence to support a finding that the protected activity and

the adverse employment action(s) were causally linked. (See Metra Mot. 9, 12; Metra Reply 6.)

Butler responds by pointing to incidents that he alleges were retaliatory, including accusations by

Olsen in 2013 that Butler was not completing work assignments; Metra's termination of Butler's

complaint makes no sense in light of the timing, the court assumes Metra made this argument in

error, and meant to refer to the 2013 EEOC complaint.

employment in 2013 on the ground that Butler was reading a newspaper during his shift; Metra's

disciplinary actions against Butler in 2016, including requiring him to submit doctor's notes to

support his February 23 absence; and Metra's enforcement of the last chance condition of Butler's

reinstatement. (See Butler Opp. 3-5.) To the extent Butler's retaliation claim is based on the

2013 incidents just mentioned, it is time-barred. Butler was required to file an EEOC complaint

about those incidents within 300 days of their occurrence, see Swanson, 794 F.3d at 825, but he

waited far longer (until July 2016).

In any event, Butler presents no evidence of a causal link between his filing of the 2013

EEOC complaint and these incidents (both those that occurred in 2013 and those that occurred

in 2016). Butler contends that he has established a viable retaliation claim merely because the

incidents occurred after he filed the 2013 EEOC complaint. (See Butler Opp. 8.) But only in "rare

case[s]" will "suspicious timing, without more, . . . carry the day." Argyropoulos v. City of Alton,

539 F.3d 724, 734 (7th Cir. 2008). In Argyropoulos, the Seventh Circuit held that an interval as

short as seven weeks between the protected activity and the adverse employment action was too

long to infer a causal connection between the two. See id.; see also LaRiviere, 926 F.3d at 360-

61 (ten-month interval was "too long to suggest a causal nexus without additional evidence"). The

2016 incidents occurred years after Butler filed the 2013 EEOC complaint. He offers no other

evidence to support his claim that any of the alleged adverse employment actions were retaliatory,

let alone that his "protected activity was the but-for cause of" those actions. See Mollet, 926 F.3d

at 897.

Nor has Butler identified a triable issue of fact under the McDonnell Douglas framework—

on which both parties rely, and which remains a viable means for assessing Title VII retaliation

claims. See Lewis v. Wilkie, 909 F.3d 858, 867 (7th Cir. 2018) ("Nothing in Ortiz . . . displaced

the burden-shifting analysis established in McDonnell Douglas" (internal quotation marks

omitted)). Butler has not offered evidence that Metra treated him less favorably than similarly

situated employees who did not file EEOC complaints. For this reason alone, Butler cannot

establish a prima facie case of retaliation. See Lewis, 909 F.3d at 866. The court grants Metra's

motion for summary judgment on Butler's Title VII retaliation claim.

E. Retaliation in violation of Section 1983

Butler also claims that Metra retaliated against him in violation of 42 U.S.C. § 1983 for his

filing of the 2013 EEOC complaint. (See Am. Compl. ¶¶ 62-65.) The court construes this as a

First Amendment retaliation claim. To prevail on such a claim, "a public employee must show

that (1) [he] engaged in constitutionally protected speech; (2) [he] suffered a deprivation because

of [his] employer's action; and (3) [his] protected speech was a but-for cause of the employer's

action." Milliman v. Cnty. of McHenry, 893 F.3d 422, 430 (7th Cir. 2018); see also, e.g., Volkman

v. Ryker, 736 F.3d 1084, 1089 (7th Cir. 2013) (similar). Even assuming for the sake of argument

that Butler's EEOC complaint is constitutionally protected speech,9 Butler cannot survive

summary judgment on this claim, either. Butler's Section 1983 retaliation claim is based on the

same allegations as his Title VII retaliation claim. (See Am. Compl. ¶¶ 62-65; Metra RSOF ¶ 60;

Butler Dep. 74:12-75:24; Attachments to July 2016 EEOC complaint at II, VI.) As discussed

earlier, no reasonable jury could find that Butler's filing of the 2013 EEOC complaint was "a but-

for" cause of the adverse employment actions that Metra allegedly took against Butler in 2013

and 2016. Milliman, 893 F.3d at 430. Accordingly, the court grants Metra's motion for summary

judgment on this claim.

F. Disability discrimination in violation of the ADA

Finally, Butler alleges that Metra discriminated against him for his disabilities in violation

of the ADA, including by enforcing the last chance condition of his reinstatement, requiring him to

9 The 2013 EEOC complaint was likely not constitutionally protected speech. See,

e.g., Bivens v. Trent, 591 F.3d 555, 561-62 (7th Cir. 2010) (police officer's union grievance "filed

for the sole purposes of securing his own medical treatment and ensuring he had a safe working

environment" was "a matter of purely private interest" and was therefore not constitutionally

protected speech); Wilhelm v. City of Calumet City, 409 F. Supp. 2d 991, 998 (N.D. Ill. 2006)

(where "[p]laintiff's EEOC charges address[ed] the alleged discrimination in purely personal

terms," they were "not speech on a matter of public concern"). Because Butler has not identified

disputed factual issues concerning causation, however, the court need not resolve this issue.

provide a doctor's note to support his February 23, 2016 absence, rejecting the doctor's notes he

provided, and terminating him in April 2016. (See Am. Compl. ¶¶ 66-70; Attachments to July

2016 EEOC Complaint at III, IV, VII, VIII; Butler Opp. 8, 10.) Butler argues in his opposition that

Metra did not accommodate his disabilities by assigning him to a desired shift, but he offers no

factual support for this contention, and did not assert a failure to accommodate claim in his

Amended Complaint at all. (See Butler Opp. 2.) Accordingly, the court construes Butler's claim

as one for disparate treatment based on a disability under the ADA. To survive summary

judgment on this claim, Butler must prove that (1) he was disabled, (2) he was qualified to perform

essential functions with or without reasonable accommodation, and (3) his disability was the "but

for" cause of adverse employment action. Scheidler v. Indiana, 914 F.3d 535, 541 (7th Cir. 2019).

As Metra argues, the record does not establish a triable issue on any of these factors.

First, according to Metra, Butler has not shown that he suffers from a disability within the meaning

of the ADA. (See Metra Mot. 10.) Second, Metra contends that Butler has not offered evidence

that he can perform the essential functions of his job. (See id.) To the contrary, Metra argues,

the record shows that Butler missed work on numerous occasions, beginning in his first year of

employment, and failed to follow Metra's absenteeism policies on those occasions. Metra points

out that "regular attendance" can be considered "an essential job requirement" and argues that

the undisputed evidence in the record shows that Butler could not perform it. (See id. at 10

(quoting Basden v. Prof'l Transp., Inc., 714 F.3d 1034, 1037 (7th Cir. 2013) ("An employer is

generally permitted to treat regular attendance as an essential job requirement . . . .").) Finally,

Metra maintains that "the record is entirely devoid of any evidence" from which a reasonable jury

could conclude that it terminated Butler because of his disability. (Metra Mot. 11.) Butler provides

only two responses. First, he states that Metra knew about his disabilities because it granted his

requests for leave under the Family and Medical Leave Act. (See Butler Opp. 2; see also id.

(stating that he included doctor's notes with his requests for leave).) Second, he argues that other

African-American employees at Metra "are raising similar claims of . . . the infliction of excessive

discipline on employees . . . with disabilities." (/d. 8.) These arguments do not identify disputed

factual issues on the points Metra has raised. The court agrees with Metra that, based on the

undisputed facts in the record, no reasonable jury could find that Butler is disabled within the

meaning of the ADA; "was qualified to perform essential functions with or without reasonable

accommodation"; and suffered adverse employment actions because of his disability. Scheidier,

914 F.3d at 541. The court, therefore grants Metra's motion for summary judgment on Butler's

ADA claim.

CONCLUSION

For the foregoing reasons, the court grants defendant Metra's motion for summary

judgment [122].

ENTER:

Dated: September 27, 2019 brea HZ ‘a 4

REBECCA R. PALLMEYER

United States District Judge

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