Vann-Foreman v. Illinois Central Railroad Company

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CYNTHIA VANN-FOREMAN, )

)

Plaintiff, ) Case No. 19 C 8069

)

v. )

) Judge Robert W. Gettleman

ILLINOIS CENTRAL RAILROAD COMPANY )

d/b/a Canadian National Railway Company, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Cynthia Vann-Foreman has sued her employer, defendant Illinois Central

Railroad Company, claiming that she was discriminated against because of her race and

retaliated against for complaining about improper racial comments made to her by a co-worker,

in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et. seq.

Defendant has moved for summary judgment under Fed. R. Civ. P. 56. For the reasons

described below, defendant’s motion is denied.

BACKGROUND

Plaintiff is an African American woman who began employment with defendant as a

locomotive engineer on November 10, 2014. She was initially certified as a locomotive

engineer in 2011 when she was employed by BNSF. That certification carried over to her

employment with defendant, although defendant required plaintiff to complete recertification

training and testing. On July 31, 2015, plaintiff violated multiple company rules by operating a

train in an unsafe manner. Defendant charged plaintiff with three separate rules violations and,

following an investigation, on February 16, 2016, terminated plaintiff’s employment. On July

12, 2016, plaintiff filed a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”), and she also grieved her termination through the Brotherhood of

Locomotive Engineers and Trainmen’s (“BLET”) collective bargaining agreement (“CBA”) with

defendant. Although her termination was initially upheld, a federal arbitration panel ultimately

reinstated plaintiff to service as an engineer.

Plaintiff returned to work on July 4, 2018, after being out of service as an engineer for

two years. During that period, her certification lapsed. As a result, she had to re-certify as a

locomotive engineer. To prepare for re-certification plaintiff underwent a medical review, rules

training and on-the-job territory familiarization trips. As part of the re-certification process

plaintiff was given a written knowledge exam on which she scored 95% and above on all parts.

On September 17, 2018, plaintiff complained to supervisor of locomotive engineers

(“SLE”) Brian Torres-Regnier that locomotive engineer Tim Gerten had made a racist remark to

her. She requested a meeting with superintendent Steve Miller. The following day she met

with Miller and assistant vice president Austin McConnell about her complaint. After that

meeting Torres-Regnier decided to schedule plaintiff’s first train handling skills performance

exam for that same day. Torres-Regnier performed the exam. Under defendant’s federally

approved Locomotive Engineer Certification Program (“LECP”) plaintiff had to score 80% or

better. Torres-Regnier scored her at 59.42%. Under the LECP and the CBA, anyone who fails

is given the opportunity to prepare for and perform another skills test under the supervision of a

different SLE.

Plaintiff’s second test was assigned to SLE Larry Tharpe. Torres-Regnier called Tharpe

and told him why he had failed plaintiff. Senior Supervisor of Locomotive Engineers Stephen

Condon also spoke with Tharpe before the second test, telling Tharpe to “evaluate her fairly” so

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there were no “gray areas.” Plaintiff also claims that Steve Miller, to whom she had complained

about the discriminatory comment, spoke to Tharpe before the test.

Plaintiff claims that Tharpe berated and intimidated her throughout the test. Plaintiff

claims that after she completed the second test but before Tharpe had completed the evaluation,

Torres-Regnier told plaintiff, in a snide manner, that she would not be around to take a vacation.

Tharpe gave plaintiff a 63.44%. Tharpe testified that during the test he had to take control of

the locomotive, causing an automatic failure. Tharpe also claims that he was unaware of

plaintiff’s complaint about Gerten or that she had previously filed an EEOC charge against

defendant.

On October 10, 2018, Condon sent plaintiff a letter indicating that defendant intended to

deny plaintiff’s re-certification because she failed the two skill tests. Plaintiff sent Condon a

rebuttal letter on October 28th, claiming that she was not speeding as Torres-Regnier reported

and that the “event recorder” would support her position. She also told Condon that Torres-

Regnier had created a hostile work environment for her. Condon acknowledged that he received

plaintiff’s complaint but did not investigate after Torres-Regnier denied making the vacation

comment. On October 29, 2018, Condon issued a notice of denial of re-certification. Without

the certification plaintiff cannot work as a locomotive engineer.

DISCUSSION

Defendant has moved for summary judgment on both counts. Summary judgement is

appropriate when “the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgement as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine

issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to

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permit a jury to return a verdict for that party.” Brummett v. Sinclair Broadcast Group, Inc.,

414 F.3d 686, 692 (7th Cir. 2005). When considering a motion for summary judgment, the

court must construe the evidence and make all reasonable inferences in favor of the non-moving

party. Hutchison v. Fitzgerald Equip. Co., Inc., 910 F.3d 1016, 1021 (7th Cir. 2018). “On

summary judgment a court may not make credibility determinations, weigh the evidence, or

decide which inferences to draw from the facts; these are the jobs for a factfinder.” Johnson v.

Advocate Health and Hospitals Corp., 892 F.3d 887, 893 (7th Cir. 2018).

In counts I and II plaintiff alleges that she was discriminated against based on her race

and retaliated against for complaining about Gerten’s racial remarks in violation of Title VII.

Title VII prohibits an employer from “discriminat[ing] against any individual with respect to

[her] compensation, terms, conditions, or privileges of employment, because of such individual’s

race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “When a defendant a

defendant moves for summary judgment [on a Title VII claim], the singular question for the

district court is whether the plaintiff has introduced evidence that would permit a reasonable

factfinder to conclude that the plaintiff’s race . . . . caused the discharge or other adverse

employment action.” Igasaki v. Ill. Dept. of Fin. And Professional Reg., 988 F.3d 948, 957 (7th

Cir. 2021) (internal quotations omitted).

Title VII also contains an anti-retaliation provision that “forbids an employer from

discriminating against an employee . . .who ‘has made a charge, testified, assisted, or participated

in any manner in an investigation, proceeding, or hearing under [Title VII].’” Stephens v.

Erickson, 569 F.3d 779, 786 (7th Cir. 2009) (quoting 42 U.S.C. § 2000e-3(a)). This provision

“seeks to prevent employer interference with unfettered access to Title VII’s remedial

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mechanisms . . . by prohibiting employer actions that are likely to deter victims of discrimination

from complaining to the EEOC, the courts, and their employers.” Id. To survive summary

judgment on a Title VII retaliation claim, a plaintiff must produce evidence from which a

reasonable factfinder could conclude that the plaintiff’s engagement in protected activity caused

a materially adverse employment action. Fields v. Board of Education of the City of the City of

Chicago, 928 F.3d 622, 626 (7th Cir. 2019).

Defendant first argues that plaintiff has failed to exhaust her available administrative

remedies. Specifically, defendant argues that plaintiff failed to timely file charge before the

EEOC or the Locomotive Engineer Review Board (“LERB”). Defendant is factually incorrect

with respect to plaintiff’s EEOC charge, and legally incorrect with its argument that plaintiff was

required to exhaust with the LERB.

Generally, to bring a Title VII claim, a plaintiff must file an EEOC charge within 300

days of the conduct underlying the claim. 42 U.S.C. § 2000e-5(e)(1). Defendant argues that

plaintiff’s 2018 EEOC charge does not claim any adverse action regarding the denial of her

locomotive engineer certificate. The charge, which was filed on December 5, 2018, clearly

stated:

I have been treated in a disparate and discriminatory manner due to

my race. I filed a complaint against my Senior Lead for telling

racists ‘jokes.’ The complaint was later turned over to my

Superintendent Shortly thereafter, I was retaliated against and

placed on suspension for allegedly failing a ride along. It is clear

the CN is creating a pretext to terminate my employment. I

believe I have been discriminated against because of my race,

African American, in violation of Title VII of the Civil Rights Act

of 1964 (Title VII).

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“Generally, a plaintiff may not bring claims under Title VII that were not originally

included in the charges made to the EEOC.” Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 726

(7th Cir. 2003). But the charge “need not allege . . .each and every fact that combines to form

the basis of each claim.” Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994).

“Even a charge that is not explicit in an employee’s complaint will be deemed exhausted if the

current claim reasonably could have developed from the EEOC’s investigation of the charges

before it, such that the EEOC charge and the complaint describe the same conduct and implicate

the same individuals.” Hubbard v. M & K Truck Centers, 2020 WL 7027607, *5 (N.D. Ill. Nov.

30, 2020) (internal quotations omitted). Claims are permissible if there is a factual relationship

between the claims and the charge, and the Seventh Circuit accords plaintiffs substantial leeway

in determining whether claims are reasonably related to an EEOC charge. Id.

In the instant case, plaintiff’s EEOC charge directly claims that she was retaliated against

for complaining about racist jokes when she was “failed” on the ride alongs, and that she was

discriminated against because of her race. Even if her instant claims are not explicitly covered

in the EEOC charge (and they are), they are undoubtedly related to the charge. Consequently,

the court rejects defendant’s argument that plaintiff has failed to exhaust her administrative

remedies under Title VII.

Next, defendant argues that plaintiff had to exhaust before the LERB pursuant to the

provisions of the Federal Railroad Safety Act, 49 U.S.C. § 20100 et seq. (“FRSA”). The FRSA

was enacted “to reduce rail-road related accidents and deaths and to improve rail safety more

generally.” Southern Pac. Transp. Co. v. Public Util. Comm’n, 9 F.3d 807, 812 (9th Cir. 1993).

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Under the FRSA, the FRA has issued administrative rules regarding training and certification of

locomotive engineers to ensure that locomotives are operated only by qualified engineers. The

FRA itself does not participate in engineer testing or certification, but administers the regulations

through approval and monitoring of each individual railroad’s testing and training regimes.

Carpenter v. Mineta, 432 F.3d 1029, 1031(9th Cir. 2005). The FRA has a dispute resolution

process “in which a person denied engineer certification may obtain a fresh determination by the

FRA of whether the railroad’s decision was correct.” Id. (citing 49 C.F.R. 240.401-240.411).

The FRA has delegated responsibility for hearing initial petitions to the LERA. Id.

The FRA also has an express preemption clause providing that any state laws (including

common laws), regulations, or orders relating to railroad safety are preempted by federal

administrative regulations or orders “covering the subject matter of the State requirement.” 49

U.S.C. § 20106 (a). A state requirement covers the same subject matter of an FSRA/FRA

regulation if it “addresses the same safety concern as the FRA regulation.” Burlington N.R.R.

Co. v. Montana, 880 F.2d 1104, 1105 (9th Cir. 1989).

Relying on Peters v. Union Pacific R. Co., 80 F.3d 257 (8th Cir. (1996), defendant argues

that because plaintiff is complaining about being denied certification, she has to exhaust her

remedies under the FRSA. In Peters, the plaintiff brought a state law conversion claim against

the defendant for refusing to return his locomotive engineer certificate after the end of a one

month suspension. The district court dismissed his claim for failing to exhaust his

administrative remedies under the FRSA, and the Eighth Circuit affirmed. Before reaching the

exhaustion issue, however, the court first determined that the plaintiff’s state law conversion

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claim was preempted by the FRSA because he was challenging the railroads certification

decision.

In the instant case, plaintiff’s claim is brought under a federal statute, not a state law or

regulation addressing the safety concerns of the FRSA regulation. Thus, the FRSA’s preemption

provision does not directly apply. Additionally, Plaintiff complains that she was discriminated

against and retaliated against because she complained about racist jokes. The subject matter of

Title VII is discrimination. It is not a safety statute. Thus, Title VII and the FRSA address

different subject matters entirely. See Glow v. Union Pac. R.R. Co., 652 F. Supp. 2d 1135,

1145-46 (E.D. Cal 2009) (FRSA does not preempt the ADA.) Consequently, the court

concludes that the FRSA does not preempt Title VII and plaintiff was not required to exhaust any

available remedies under the FRSA.

Next, defendant argues that plaintiff’s claims are precluded by the Railway Labor Act

(“RLA”). The RLA governs railroads and airlines and provides a comprehensive framework for

resolving labor disputes. Brown v. Illinois Central R.R. Co., 254 F.3d 654, 658 (7th Cir. 2001).

“All minor disputes must be adjudicated under RLA mechanisms, which include an employer’s

internal dispute-resolution procedures and an adjustment board established by the unions and the

employer.” Id. Minor disputes “grow out of grievances or out of the interpretation or

application of agreements covering rates of pay, rules, or working conditions, and involve

controversies over the meaning of an existing collective bargaining agreement in a particular fact

situation.” Id. (internal quotations omitted). “A plaintiff’s claim is properly characterized as a

minor dispute (and is therefore subject to mandatory and exclusive arbitration under the RLA)

when resolution of the plaintiff’s claim requires interpretation of the CBA.” Id. A claim

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brought under an independent federal statute, such as plaintiff’s Title VII claim, is precluded by

the RLA “only if it can be dispositively resolved through an interpretation of a CBA. This

occurs only when a provision of the [CBA] is the subject of the dispute or the dispute is

substantially dependent upon an analysis of the terms of a [CBA].” Id. at 668. A claim will not

be precluded “merely because certain provisions of the CBA must be examined and weighed as a

relevant but non-dispositive factor in deciding a claim or defense.” Id. “Purely factual questions

about an employer’s conduct or motivation do not require a court to interpret any term of a

collective bargaining agreement.” Lyles v. Northeast Illinois Regional Commuter Railroad

Corp., 2020 WL 7260801 at 3 (N.D. Ill. Dec. 10, 2020). Generally, the RLA does not preclude

claims involving “statutory protections against employment discrimination and retaliation.” See

Carlson v. CSX Transp., Inc., 758 F.3d 819, 832 (7th Cir. 2014).

Defendant argues that plaintiff’s claims are governed by Article 13 of the CBA, which

provides that an employee’s seniority and employment may be terminated when the required

certification standards are not met. This argument misinterprets plaintiff’s claims. Plaintiff is

not challenging that provision; she is alleging that the procedures were applied in a

discriminatory manner. See Caroma v. Southwest Airlines Co., 536 F.3d 344, 349-50 (5th Cir.

2008) (claims under Title VII avoided RLA preclusion because plaintiff had alleged “that CBA

procedures were applied in a discriminatory manner, not that the CBA procedures were

fundamentally discriminatory”) (emphasis in original). Plaintiff’s claims that she was subject to

racial discrimination and retaliation are independent of the CBA and are not precluded by the

RLA.

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Finally, defendant argues that plaintiff cannot establish her claim of discrimination. To

establish a prima facie case of race discrimination, plaintiff must show that: 1) she is a member

of a protected class; 2) her job performance met the employer’s legitimate expectations; 3) she

suffered an adverse employment action; and 4) another similarly situated individual not in the

protected class was treated more favorably. McKinney v. Office of Sheriff of Whitley Cty, 866

F.3d 803, 807 (7th Cir. 2017). Plaintiff does not have to follow this framework, (established in

McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973), and can simply argue that the

admissible evidence supports her claim. As noted above, the singular question for the court is

whether plaintiff has introduced evidence that would permit a reasonable factfinder to conclude

that plaintiff’s race caused the adverse employment action. Igalski, 988 F.3d at 957.

Plaintiff’s race discrimination claim in Count I fails under either method. She is

obviously a member of a protected class and has suffered an adverse employment action. But

even assuming she was meeting her employer’s legitimate expectations, she has failed to identify

any similarly situated individual not in the protected class who was treated more favorably. Nor

has she presented any evidence that either Torres-Regnier or Tharpe failed her because she is

African American. Indeed, she has identified no racist remarks or any other facts from which a

reasonable fact finder could conclude that either Torres-Regnier, Tharpe, or Condon acted based

on race. The only racist remark plaintiff has identified was allegedly made by Gerten, who had

no input into the decision to test plaintiff or deny her certification. Consequently, the court

grants defendant’s motion for summary judgement on Count I.

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As to her retaliation claim, plaintiff must produce evidence from which a reasonable

factfinder could conclude that plaintiff’s engagement in protected activity caused the materially

adverse employment action. Fields, 928 F.3d at 626.

Although her case is thin, the court concludes that plaintiff has provided sufficient

evidence for a reasonable factfinder to conclude that defendant’s decision to fail her on the ride

alongs and deny her certification was in retaliation for complaining about Gerten’s racial

comments. The case is basically a “he said/she said” situation, with plaintiff’s description of the

ride along tests differing significantly from those of Torres-Regnier and Tharpe. The fact that

Torres-Regnier elected to schedule the ride along immediately after plaintiff complained to him

about the racist comments supports her retaliation claim. See McClendon v. Indian Sugars, Inc.,

108 F.3d 789, 796 (7th Cir. 1997) (Generally, a plaintiff may establish a causal link between the

protected activity and the adverse action through evidence that the adverse action took place on

the heels of the protected activity.).

Defendant argues that plaintiff’s failure on the ride along tests establishes a legitimate

non-discriminatory or retaliatory reason for the denial of certification. But both those tests were

graded subjectively by Torres-Regnier and Tharpe, and plaintiff disputes the grades they gave

her and the reasons for those grades. Plaintiff claims that an “event recorder” would support her

position and demonstrate that Torres-Regnier and Tharpe are lying about her performance, but

she was unable to obtain this recorder through the discovery process and thus cannot rely on it

for purposes of summary judgment. (See Docs. 66 and 74).1 At this stage, the court may not

1 Plaintiff was unable to obtain the event recorder due to violations of the Magistrate Judge’s orders and deadlines,

which were affirmed by this court. These rulings were not intended to prevent plaintiff from attempting to

subpoena the event recorder for purposes of trial.

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make credibility determinations, weigh the evidence, or decide which inferences to draw from

the facts, Johnson, 892 F.3d at 893, and must construe the evidence and make all reasonable

inferences in plaintiff's favor. Hutchison , 910 F.3d at 1021. Ifa reasonable factfinder believes

plaintiff's version of the ride along tests, it could conclude that the denial of certification was in

retaliation for her complaint about Gerten. Consequently, the court denies defendant’s motion

for summary judgment on count II.’

CONCLUSION

For the reasons described above, defendant’s motion for summary judgment [Doc. 81] is

granted as to Count I and denied as to Count II.

ENTER:

al W. Gettleman

United States District Judge

DATE: January 20, 2022

2 Defendant points out that in her response brief plaintiff indicates that her response letter to Condon indicated that

she believed that Torres-Regnier had subjected her to a hostile work environment. She made no such claim in

either her EEOC charge or the instant complaint, and her brief indicates that she makes the argument only to show

that Condon was aware that she had engaged in protected activity when he made the decision to deny certification.

Consequently, the court does not interpret her brief as attempting to raise a hostile work environment claim.

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