Coleman

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KEITH COLEMAN, )

)

Plaintiff, ) Case No. 22-cv-00016

)

v. ) Judge John Robert Blakey

)

SOO LINE RAILROAD CO. )

D/B/A CANADIAN PACIFIC )

RAILWAY, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Keith Coleman, an African American, worked as a Locomotive

Engineer for Defendant Soo Line Railroad, d/b/a Canadian Pacific Railway (“CP”).

Defendant terminated Plaintiff, reinstated him, and then terminated Plaintiff again.

Plaintiff sued, alleging race discrimination, age discrimination retaliation, and

failure to provide a reasonable accommodation. See [25]. Defendant now moves for

summary judgment on all claims.1

For the reasons explained below, this Court grants Defendants’ motion for

summary judgment [69]

I. Background

CP originally hired Plaintiff in 1998. [76] ¶ 2. In 2008, Plaintiff filed suit

against CP alleging discrimination. [76-1] 109:6–24. In 2017, Plaintiff testified in a

deposition in a lawsuit filed by someone else against CP. Id.

1 Plaintiff does not oppose Defendant’s motion for summary judgment on his age discrimination claim,

[75] at 15, and the Court thus grants as unopposed Defendant’s motion as to this claim, Count VIII.

On October 24, 2018, Plaintiff allegedly failed to sound a proper whistle signal

while acting as the engineer on duty. [71-2] at Ex. H. He signed a waiver2 in

November and received ten demerits. Id. In the first four months of 2019, Coleman

signed three waivers totaling twenty-five demerits and received a twenty-day

suspension, of which he served ten days and deferred the other ten. Id. The issues

addressed in the waivers included reporting late to work and improper actions on the

train. Id. As of April 9, 2019, Coleman had accumulated thirty-five demerits in total.

Id.

On April 11, 2019, Plaintiff was involved in his first break-in-two incident,3 the

result of improper train handling. Id.; [76] ¶ 30–31. Later in April, Plaintiff met with

Amanda Cobb of CP Human Resources to discuss the break-in-two incident. [76] ¶¶

22–24. Joshua Bahruth, Superintendent of Operations at Bensenville, joined the

meeting late, discussed train handling specifics with Plaintiff, and told him that he

could potentially be dismissed because of the incident. Id. Plaintiff signed a waiver

accepting responsibility. Id. Plaintiff believed he would be terminated if he did not

sign the waiver. [76-1] 132:12–18.

On April 22, 2019, Plaintiff sent an email to Keith Creel, the CEO of CP,

claiming that Assistant Superintendent Branden Billingsley and Road Foreman

Doug Carl were conspiring to terminate him. [76] ¶ 28. He claimed that “because of

2 A “waiver” is an agreement between the employee and the company on the discipline the employee

will receive for an infraction, avoiding the adjudicatory process of the Collective Bargaining

Agreement. See [76-11] at 18–19.

3 A “break-in-two” incident, as the name suggests, describes a situation where a train separates or

breaks apart when it is not supposed to do so.

these two managers my career has been a nightmare.” Id. In his deposition, Plaintiff

testified that he was required to take tests as an engineer and claimed that

Billingsley falsely recorded him failing tests without telling him. [71-1] 60:11–24.

On October 8, 2019, Coleman was involved in his second break-in-two incident.

[76] ¶¶ 30–32. Approximately one mile from the Bensenville Yard, the train went

into emergency break application and was temporarily disabled. Id. ¶ 30. An

inspection revealed a broken drawbar had caused the train to separate, or break in

two. Id. ¶ 31. Road Foreman Doug Carl reviewed the train downloads4 and

determined that improper train handling caused the break-in-two, though he was not

present at the incident. Id. ¶ 33; [79] ¶ 10. According to Plaintiff, Doug Carl does

not like African Americans, and Plaintiff has experienced Carl’s negative demeanor

towards African Americans at the yard. [76-1] 162:22–164:13.

On October 9, 2019, Defendant issued Plaintiff a notice of investigation and

hearing, notifying him that he was held out of service. [76] ¶ 34. Later in October,

Plaintiff met with Assistant Superintendent Josh Pennington and Doug Carl. Id. ¶

35. Carl testified that, during that meeting, Plaintiff alleged that a mechanical

failure caused the train to not respond to the throttle. [71-1] at 208. Based upon his

review, Carl concluded that Coleman had not performed a Class III air brake

continuity test, a federal requirement.5 [76] ¶ 36. On October 15, Defendant sent

4 Defendant compares these downloads to the “black box” on an airplane that “record voluminous

amounts of information, including how the locomotive was handled by the engineer throttle

manipulations, motor position, dynamic breaking, and other operating information.” [76] ¶ 32.

5 See 49 C.F.R. § 232.211; 49 C.F.R. § 240.307; 49 C.F.R. § 240.117.

Plaintiff a revised hearing notice with the additional charge of failing to conduct the

brake test. Id. ¶ 38.

The hearing commenced the following day, October 16, 2019. [79] ¶ 3.

Coleman participated, but did so under protest. Id. ¶ 4. Hearing participants included

Plaintiff; Michael Ugorek, the hearing officer and Assistant Superintendent at the

Bensenville Terminal; Mathew Peterson, Plaintiff’s union representative; and Doug

Carl, a witness. [76-2] at 5–6. Roger Olinski, the conductor during the October break-

in-two, was not present, though Peterson had requested his presence. Id. at 17–21.

Carl testified that the break-in-two occurred when the drawbar broke at the 63rd car,

and that Plaintiff had followed the Rule in Use of the Throttle. Id. at 52. That rule

requires the engineer to advance the throttle one notch at a time and only advance

the throttle when tractive effort is stable or declining. [71-2] at SOO-

Coleman0003735. Carl also testified that he could not determine whether a

mechanical failure had occurred, stating, “I’m not a mechanic.” [76-2] at 61. Plaintiff

testified that he advanced the throttle one notch at a time, that he used good

judgment when doing so, and that he had performed the Class III air brake pipe

continuity test before departure. Id. at 63.

On October 21, 2019, Defendant terminated Plaintiff and revoked his engineer

certification. [76] ¶¶ 49, 50. In deciding to fire Plaintiff for cause, Defendant

employed a multi-level review, with the final decision being made by Nicholas

Walker. Id. ¶ 48; [76-11] 29:7–25. The review included a recommendation of

dismissal by Ugorek, sent to several other employees before a final decision was

rendered by Walker. [71-3] Exs. R, S, T. CEO Keith Creel also signed off on the

decision via email. [76-11] at 38. Plaintiff appealed his termination, [79] ¶ 15, and

cross-filed complaints with the Equal Opportunity Employment Commission (EEOC)

and the Illinois Department of Human Rights (IDHR). [71-5] at 29. Defendant denied

Plaintiff’s appeal by letter on January 17, 2020. [76] ¶ 53.

A three-member public law board (“PLB”) then heard Plaintiff’s appeal. Id. ¶

54. On January 14, 2021, the board found mitigating factors and reinstated Plaintiff,

without backpay, on a last-chance basis. Id. ¶ 55. In so doing, the PLB held there

was sufficient evidence to find that Coleman violated operating instructions, but it

also reasoned that “given the mitigating factors that are evident in this record, this

Board must find that the Carrier acted unreasonably, arbitrarily, and capriciously

when it terminated the Claimant's employment in this case.” [76-6] at 3, 4.

Plaintiff returned to work and began re-familiarization trips. [76] ¶ 56. At

some point, before returning to work, Plaintiff disclosed to CP that he had diabetes,

high blood pressure, and sleep apnea. [79] ¶ 17. Plaintiff submitted an

accommodation request form, dated June 10, 2021, requesting the right to take off

work for doctor’s visits. [71-3] Ex. Y. The form listed sleep apnea as one of his “serious

conditions” but did not include any reference to a CPAP machine or overnight trips.

Id. Disability Management Specialist Lisa Hanson received Plaintiff’s submission

and requested more information via email on June 14, 2021. Id. Ex. Z.

On June 16, 2021, Coleman spent the night in a hotel without his CPAP

machine. [79] ¶ 18. He testified that he believed he was going to take a cab home

that night, but instead CP assigned him to work a train the following day, June 17.

Id. ¶¶ 18–19. Soon after the June 17 trip, an independent audit of the inward facing

camera in the locomotive revealed apparent footage of Coleman sleeping. Id. ¶ 21.

On June 24, 2021, Plaintiff received a notice of investigation letter and was removed

from service based upon the audit. Id. ¶ 23.

Coleman attended a disciplinary hearing on July 1, 2021. [76] ¶ 68. John

Cartlidge served as the hearing officer. Id. Two other CP employees, Arunas

Ribikauskas, an engineer, and Christopher Mathews, a conductor, attended the

meeting for allegedly failing to wear Covid masks. [76-7] at 6, 57, 63. Mathews, who

periodically sat next to Plaintiff on the train, testified that he did not see Plaintiff

sleeping. [76-7] at 65–66, 72. Defendant did not allow Plaintiff to present evidence

concerning his “potential cause of sleeping while on duty.” [79] ¶ 28. Coleman

acknowledged he closed his eyes, but disputed that he was reclined and argued

instead that he experienced “a medical nod.” [71-4] Ex. GG at 73. Despite the footage,

and his concession about the “medical nod,” he testified he did not violate the sleeping

rule. Id. at 77. On July 12, 2021, CP fired Plaintiff. [76] ¶ 72. Jason Ross, Vice

President of Operations of the Southern Region, rendered the final decision, after a

multi-level review process that went from John Cartlidge (the hearing officer) to

Brian Scudds (labor relations) to Jason Ross. [71-5] at 21–25.

On October 8, 2021, the EEOC issued Plaintiff a notice of right to sue letter.

[1-2] at 1. He filed this suit on January 3, 2022, alleging race and disability

discrimination and retaliation. See [1], [25]. Defendant seeks summary judgment in

its favor on all claims, [69].

II. Motion for Summary Judgment

A. Legal Standard

Summary judgment is proper where there is “no dispute as to any material fact

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

genuine dispute as to any material fact exists if “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the

burden of establishing that there is no genuine dispute as to any material fact. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In determining whether a genuine issue of material fact exists, this Court must

construe all facts and reasonable inferences in the light most favorable to the non-

moving party. King v. Hendricks Cty. Comm’rs, 954 F.3d 981, 984 (7th Cir. 2020).

The non-moving party bears the burden of identifying the evidence creating an issue

of fact. Hutchison v. Fitzgerald Equip. Co., Inc., 910 F.3d 1016, 1021–22 (7th Cir.

2018). To satisfy this burden, the non-moving party “must do more than simply show

that there is some metaphysical doubt as to the material facts.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Barnes v. City of Centralia,

943 F.3d 826, 832 (7th Cir. 2019). Thus, a mere “scintilla of evidence” supporting the

non-movant’s position does not suffice; “there must be evidence on which the jury

could reasonably find” for the non-moving party. Anderson, 477 U.S. at 252.

B. Analysis

In moving for summary judgment, Defendant argues that: (1) Plaintiff cannot

establish a prima facie case of race discrimination; (2) Plaintiff cannot demonstrate

retaliation; and (3) Plaintiff cannot establish that Defendant failed to provide a

reasonable accommodation. See [70]. The Court considers each argument in turn.

1. Race Discrimination

Plaintiff claims that Defendant fired him because of his race.

Title VII prohibits an employer “to discriminate against any individual with

respect to his 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). To succeed on a Title VII discrimination claim, an employee must prove: (1)

that he is a member of a protected class; (2) that he suffered an adverse employment

action; and (3) causation. Lewis v. Indiana Wesleyan Univ., 36 F.4th 755, 759 (7th

Cir. 2022) (citing Abrego v. Wilkie, 907 F.3d 1004, 1012 (7th Cir. 2018)).

In Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016), the

Seventh Circuit clarified the methods of proof in employment discrimination cases.

The Court explicitly instructed district courts to consider the evidence “as a whole,

rather than asking whether any particular piece of evidence proves the case by

itself—or whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence.” Ortiz,

834 F.3d at 765. The holistic analysis set forth in Ortiz supplements, rather than

alters, the burden-shifting framework for discrimination claims that the Supreme

Court created in McDonnell Douglas Corp v. Green, 411 U.S. 792, 793 (1973). See

Davis v. Bd. Of Trs. Of Cmty Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017)

(discussing Ortiz’s impact on methods of proof in employment discrimination cases).

The question on summary judgment remains, “has the non-moving party produced

sufficient evidence to support a jury verdict of intentional discrimination?” Id. (citing

Morgan v. SVT, LLC, 724 F.3d 990, 997 (7th Cir. 2013)).

Courts now conduct the McDonnell Douglas analysis if the parties present

arguments “in those terms,” but also assess the plaintiff’s evidence “cumulatively”

under Ortiz. See David, 846 F.3d at 224. Here, the parties organize their arguments

utilizing the McDonnell Douglas framework; therefore, the Court will assess the

evidence in accordance with the McDonnell Douglas framework and determine

whether Plaintiff has established a prima facie case of discrimination. The Court will

additionally review the record holistically, asking whether it permits a reasonable

factfinder to conclude that Defendant terminated Plaintiff based on his race. See

Ortiz, 834 F.3d at 765.

McDonnell Douglas requires a plaintiff to state a prima facie case of

discrimination by showing that: (1) he belongs to a protected class; (2) he performed

reasonably on the job in accordance with the defendant’s legitimate expectations; (3)

despite his reasonable performance, he was subjected to an adverse employment

action; and (4) similarly situated employees outside of his protected class received

more favorable treatment from the defendant. Andrews v. CBOCS W., Inc., 743 F.3d

230, 234 (7th Cir. 2014), overruled on other grounds by Ortiz, 824 F.3d at 765. Once

a plaintiff establishes a prima facie case, the burden shifts to the employer to offer “a

legitimate, non-discriminatory reason for the employee’s termination.” Peele v.

Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir. 2002). If the employer does so, the

employer merits summary judgment “unless the plaintiff presents evidence that the

proffered reasons are pretexts for discrimination.” Collier v. Budd Co., 66 F.3d 886,

889 (7th Cir. 1995).

Defendant twice terminated Plaintiff, an African American; there can thus be

no question that Plaintiff belongs to a protected class or that Defendant subjected

him to an adverse employment action. But Plaintiff’s claim fails because he cannot

prove that he was meeting CP’s legitimate expectations and has not identified a single

similarly situated employee that Defendant treated more favorably.

a) Legitimate Expectations

Defendant argues that Coleman was not meeting CP’s legitimate expectations

when CP dismissed Coleman in 2019 and 2021. [70] at 3. Plaintiff responds that

since “the people judging” his “performance were the same people” he “accused of

discriminating against” him, Coleman does not have to prove that he met CP’s

legitimate expectations; rather, the Court should consider this issue in the context of

pretext. Curry v. Menard, Inc., 270 F.3d 473, 477–78 (7th Cir. 2002) (first citing

Flores v. Preferred Technical Group, 182 F.3d 512, 515 (7th Cir. 1999); and then citing

Oest v. Ill. Dep't of Corr., 240 F.3d 605, 612 n.3 (7th Cir. 2001)).

The record sufficiently shows that though Doug Carl, who Plaintiff alleges

discriminated against him, testified at the hearing that led to Plaintiff’s 2019

termination, he was not the only one involved in evaluating Plaintiff’s performance

and deciding his termination. See [76] ¶¶ 33, 36; [76-2] at 4. [79] at 40; [76] ¶ 28.

The decision was made by a multi-level review involving several employees who

considered the hearing, Plaintiff’s history, and prior employment events. See [76] ¶

48; [76-11] 29:7–25; [71-3] Exs. R, S, T; [76-11] at 38. Therefore, the individuals

“judging” Plaintiff’s performance, the people deciding his termination, and the factors

considered in the decision did not entirely constitute “the same people” Plaintiff

“accused against discriminating him.” See Curry, 270 F.3d at 477–78. Accordingly,

the principle articulated in Curry does not apply and Plaintiff must prove that he was

meeting CP’s legitimate expectations in order to prove his discrimination claim.

At the time of Plaintiff’s 2019 termination, he had received 35 demerits and a

20-day suspension for job infractions, including failing to sound a proper whistle

signal, reporting late to work, and taking other improper actions on the train. [71-2]

at Ex. H. Additionally, Plaintiff had accepted responsibility for the break-in-two

incident on April 19, 2019.6 These infractions show that Plaintiff was not meeting

CP’s legitimate expectations in 2019, even before considering the October 9, 2019

break-in-two incident that directly led to Plaintiff’s termination, and Plaintiff does

not introduce any evidence to the contrary. Therefore, the undisputed evidence shows

6 Plaintiff disputes his willingness to sign the waiver accepting responsibility, but the undisputed

portions of the factual record confirm that Plaintiff did admit responsibility for the improper train

handling.

that Plaintiff was not meeting CP’s legitimate expectations at the time of his 2019

termination.

The parties dispute who made the decision regarding Plaintiff’s 2021

termination. [75] at 10–11. Regardless of who made the final decision, however,

Plaintiff does not claim that any of the alleged decisionmakers discriminated against

him based upon his race. Again, Plaintiff must prove that he was meeting CP’s

legitimate expectations in order to prove his discrimination claim, and he cannot do

so. See Curry, 270 F.3d at 477–78.

Plaintiff disputes that he fell asleep on the job prior to his 2021 termination,

but he agrees that CP dismissed him for violating a rule, namely, sleeping while on

duty. [76] ¶¶ 67, 72. Since CP had recently reinstated Plaintiff as an employee

following his 2019 termination, [76] ¶ 56, Plaintiff’s most recent employment history

with CP included the demerits accumulated in 2018 and 2019 and associated

unsatisfactory performance. Plaintiff has the burden to prove he met CP’s legitimate

expectations, but he fails to articulate any evidence that he met CP’s legitimate

expectations. See [75] at 10–11. Since a party waives undeveloped arguments,

Plaintiff does not meet his burden as to this element of the McDonnell Douglas test.

See Braun v. Village of Palatine, 56 F.4th 542, 553 (7th Cir. 2022) (“A litigant ‘waives

an argument by failing to make it before the district court.’ This rule applies when ‘a

party fails to develop arguments related to a discrete issue’”) (first citing Alioto v.

Town of Lisbon, 651 F.3d 715, 720 (7th Cir. 2011); and then citing Lekas v. Briley,

405 F.3d 602, 614 (7th Cir. 2005); see also United States v. Useni, 516 F.3d 634, 658

(7th Cir. 2008) (“It is not the obligation of this court to research and construct the

legal arguments open to parties, especially when they are represented by counsel.”)

(quoting Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir. 1986)). Nor could Plaintiff

meet his burden, as the only evidence in the record regarding Plaintiff’s performance

at the time of his 2021 termination consisted of Plaintiff’s previous demerits and the

fact that he was participating in refamiliarization trips. [76] ¶ 56.

Therefore, Plaintiff fails to prove this required element of the McDonnell

Douglas test for both the 2019 and 2021 terminations.

b) Similarly Situated Employees

Even if Plaintiff could prove that he met CP’s legitimate expectations at the

time of his 2019 and 2021 terminations, he fails to identify a similarly situated

employee as required by McDonnell Douglas. A similarly situated employee “must

be directly comparable to the plaintiff in all material respects, which is a common-

sense, flexible analysis of relevant factors.” Hnin v. TOA (USA), LLC, 751 F.3d 499,

504 (7th Cir. 2014). While the inquiry “is not a mechanical comparison, it requires

enough common factors to determine if intentional discrimination was at play.” Id.;

see also Alexander v. Casino Queen, Inc., 739 F.3d 972, 981 (7th Cir. 2014) (stating

the analysis does not require “near one-to-one mapping between employees”);

Barricks v. Eli Lilly and Co., 481 F.3d 556, 560 (7th Cir. 2007) (requiring “enough

common factors” to allow for a “meaningful comparison”). For this meaningful

comparison, a typical McDonnell Douglas plaintiff must show, at a minimum, that

the comparators: “(1) dealt with the same supervisor, (2) were subject to the same

standards, and (3) engaged in similar conduct without such differentiating or

mitigating circumstances as would distinguish their conduct or the employer’s

treatment of them.” Coleman v. Donahoe, 667 F.3d 835, 847 (7th Cir. 2012) (internal

citations omitted).

Plaintiff suggests several allegedly similarly situated employees, but his

general assertions fail to allow a “meaningful comparison.” For his 2019 termination

and removal from service, Plaintiff points to the conductor involved in the incident,

Mr. Olinski, seven individuals, and six black employees. [75] at 12. For each of these

proposed comparators, however, Plaintiff fails to develop how each meets the

requirements as a similarly situated employee.7 Additionally, the record fails to

support that these comparators qualify as similarly situated employees. Olinski, the

conductor at the time of the break-in-two incident, had a different job, handled

different responsibilities, and did not operate the throttle as Plaintiff did. See [71-1]

Ex. C. While Plaintiff notes that Olinski was subject to the same rules as Plaintiff,

Olinski was a conductor, and he thus had a different role in causing the break-in-two

incident, and Plaintiff does not address this mitigating circumstance. Plaintiff

further fails to note the identities or any material characteristics of the “seven

individuals” and “six black employees” in his materials, and it “isn’t the court’s job to

find the needle in the haystack, the truffle in the field, or the Waldo on the page.”

Est. of Freese-Pettibon ex rel. O’Mealy v. Nexus RVs, LLC, 701 F. Supp. 3d 757, 766

n.10 (N.D. Ind. 2023) (quoting Litsinger v. Forest River, Inc., 536 F. Supp.3d 334, 353

7 A party waives “perfunctory and undeveloped arguments that are unsupported by pertinent

authority.” Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961, 964 n.1 (7th Cir. 2004).

(N.D. Ind. 2021)). Plaintiff has the burden of identifying a similarly situated

employee, and the information provided does not allow the Court to make a

“meaningful comparison” for Plaintiff’s race discrimination claim for the 2019

termination.

As to Plaintiff’s 2021 termination, Plaintiff claims that “there are numerous

employees who engaged in much worse conduct than Coleman, who were never

terminated,” but again he fails to expound on why these “numerous employees” are

similarly situated for the purpose of the McDonnell Douglas framework. [75] at 13.

Likewise, Plaintiff claims that he “was not afforded the same rules as his two

crewmembers,” id., without acknowledging the “differentiating or mitigating

circumstances as would distinguish their conduct or the employer’s treatment of

them,” such as the different job titles, responsibilities, or infractions. See Coleman,

667 F.3d at 847. As noted above, a party waives an undeveloped argument, and a

“court is not required to scour the record in search of evidence to defeat a motion for

summary judgment.” Est. of Freese-Pettibon, 701 F. Supp. 3d at 766 n.10 (quoting

Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001)).

Consequently, Plaintiff again fails to meet his burden of identifying a similarly

situated employee such that the Court can make a “meaningful comparison” as to his

2021 termination. See Brown v. CACH, LLC, 94 F.th 665, 667 (7th Cir. 2024)

(“Summary judgment is the ‘put up or shut up’ time in litigation.”) (quoting Schacht

v. Wisconsin Department of Corrections, 175 F.3d 497, 504 (7th Cir. 1999)). Without

a proper similarly situated employee for either termination, Plaintiff’s claims fail

under McDonnell Douglas.

c) Consideration Under Ortiz

Plaintiff’s claims also fail under Ortiz’s holistic approach. Under Ortiz, this

Court must assess Plaintiff’s evidence cumulatively and determine whether the

record would permit “a reasonable factfinder to conclude” that his race “caused the

discharge or other adverse employment action.” 892 F.3d at 765; David, 846 F.3d at

224. This record, considered as a whole, does not permit such a conclusion.

The only individual at CP who Plaintiff alleges discriminated against him

because of his race is Doug Carl, who testified at Plaintiff’s 2019 hearing. Plaintiff

claims that Defendant’s decision to terminate him solely and discriminatorily relied

upon Carl’s testimony regarding the break-in-two incident. But the notion that

Defendant discharged Plaintiff because of his race finds no support in the record.

First, Plaintiff’s only evidence of race discrimination is his bare assertion that

Carl did not like black people. Even assuming the truth of this conclusory statement,

the record provides no suggestion that Carl’s perceived dislike of black people played

any part in Plaintiff’s termination. Indeed, the record demonstrates conclusively that

Carl did not make the decision to fire Plaintiff in 2019; rather, the termination

occurred after a multi-level review and based upon several factors, including

Plaintiff’s employment performance history. Further, Plaintiff cannot show that

white employees were treated differently for similar serious issues. See [76] ¶ 77.

Looking at the whole record, Plaintiff has offered no evidence to show that his

2019 termination occurred because of his race. See Skiba, 884 F.3d at 725 (noting

that under Ortiz, at the “end of the day, the question is simply whether the same

events would have transpired if plaintiff had been” a different race “and everything

else had been the same”) (internal citations omitted). Therefore, Plaintiff’s claim

relating to his 2019 termination fails under Ortiz.8

The Court thus grants summary judgment in favor of Defendant on Plaintiff’s

race discrimination claims, Counts I, II, and V.

2. Retaliation

Defendant next seeks summary judgment on Plaintiff’s retaliation claim. To

survive summary judgment on a claim of retaliation under Title VII, Plaintiff must

demonstrate evidence that allows the jury to conclude that “(1) that he engaged in a

statutorily protected activity; (2) he suffered a materially adverse action by his

employer; and (3) there was a causal link between the two.” Porter v. City of Chicago,

700 F.3d 944, 957 (7th Cir. 2012) (quoting Benuzzi v. Bd. of Educ. of City of Chi., 647

F.3d 652, 664 (7th Cir. 2011)).

Plaintiff claims five protected activities: (1) his participation in a 2008 lawsuit,

(2) his deposition in a lawsuit against CP filed by someone else, (3) his discrimination

report to Amanda Cobb and Joshua Bahruth in 2019, (4) his complaint with IDHR

8 Likewise, Plaintiff fails to allege any racial animus in the 2021 termination. Carl was not involved

in this situation, and Plaintiff’s complaints regarding this termination have to do with non-racial

issues—his medical accommodation request. Plaintiff simply provides no evidence to suggest that his

race played a role in the 2021 termination, so the claim relating to the 2021 termination likewise fails

under Ortiz.

after his first dismissal, and (5) his email to CP CEO Keith Creel claiming that

Billingsley and Carl were conspiring to terminate him. Defendant does not challenge

the first four areas as being protected activities, but argues that the fifth of these, the

email to Creel, was not a protected activity because it was not a complaint of

discrimination or harassment and did not mention race. [70] at 10 n. 4; [71] ¶ 28.

The Court agrees: “merely complaining in general terms of discrimination or

harassment, without indicating a connection to a protected class or providing facts

sufficient to create that inference, is insufficient.” Tomanovich v. City of Indianapolis,

457 F.3d 656, 663 (7th Cir. 2006). Without more, Plaintiff’s email to Creel does not

constitute protected activity.

As to the other areas of protected activity, Plaintiff’s retaliation claim fails. A

showing of retaliation requires but-for cause. Univ. of Tex. Southwestern Med. Ctr.

v. Nassar, 570 U.S. 338, 362 (2013) (“The text, structure, and history of Title VII

demonstrate that a plaintiff making a retaliation claim under § 2000e-3(a) must

establish that his or her protected activity was a but-for cause of the alleged adverse

action.”). Therefore, to succeed on his retaliation claim, Plaintiff must present

evidence sufficient to allow a jury to conclude that one or more of these protected

activities constituted a but-for cause of his adverse employment actions.

Plaintiff has offered no such evidence. As to the 2008 lawsuit, which was

eleven years before Plaintiff’s first termination, Plaintiff has not provided evidence

that Nicholas Walker, Jason Ross, or anyone else with a say in his terminations even

knew about the lawsuit. So too the 2017 lawsuit, in which Coleman was not a party

but merely a deponent. [76-1] at 113:11–15 (Plaintiff could not name anyone at CP

who knew of the deposition except Mr. Foreman, the plaintiff in that case). Plaintiff

has also failed to allege that anything he specifically said in that deposition was

damaging to CP. Jason Ross also stated in his declaration that he had never met

Plaintiff and was unaware of his protected activities. [71-5] Ex. 15 ¶¶ 12, 13. Walker

testified that he was not aware that Foreman had filed a lawsuit or that Plaintiff had

been deposed in that lawsuit. [71-1] Ex. 2 34:8–17. The record offers no additional

evidence that any decision-maker knew about the other protected activities.9

Without some evidence to allow a jury to find but-for cause, summary judgment

in Defendant’s favor is appropriate, and the Court thus grants Defendant’s motion

for summary judgment as to Plaintiff’s retaliation claims, Counts III, IV, and VI.

3. Disability Discrimination

Defendant also moves for summary judgment on Plaintiff’s disability

discrimination claim, which asserts that Defendant failed to reasonably

accommodate his sleep apnea, diabetes, and high blood pressure. To win on his claim,

Plaintiff must show that: “(1) he is a qualified individual with a disability; (2) the

employer was aware of her disability; and (3) the employer failed to reasonably

accommodate the disability.” Bunn v. Khoury Enters., 753 F.3d 676, 682 (7th Cir.

2014) (citing EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005)).

9 Plaintiff appears to dispute Defendant’s claim that Walker had no knowledge of Plaintiff’s complaint

to Cobb, [76] ¶ 52, but Plaintiff’s citation for this dispute describes how Cobb described Plaintiff’s

performance review with Walker. [76-10] 21:5–22:6. The record does not support the notion that Cobb

told Walker about Plaintiff’s protected activities.

Plaintiff alleges that Defendant failed to reasonably accommodate his sleep

apnea by not telling him that he would be spending the night in Portage, Wisconsin

on June 16, 2021, the night before he fell asleep on duty. [75] at 14–15. When

Plaintiff returned to work in June 2021, he requested an accommodation regarding

his disabilities, including his sleep apnea, since they “can flair up at anytime,” and

he needed “protection, to be able to go to the doctor or lay off to get it back in control.”

[76] ¶¶ 60, 61. No evidence suggests that Plaintiff’s accommodation request ever

related to his CPAP machine access or an inability to stay overnight on routes.

On June 16, 2021, Plaintiff’s accommodation request remained in process.

Plaintiff testified that, prior to the June 16th trip, he was told he would return the

same day and thus he did not bring his CPAP machine. [76-1] at 213:10–22.

Defendant indicates that Plaintiff should have known he would stay in a hotel that

night because that was customary for the Bensenville-Portage route. [71] ¶ 68 n. 14.

Even if Plaintiff was told that he would be cabbed back home, since Plaintiff’s

accommodation request did not concern his CPAP machine or overnight stays,

Defendant was not responsible for assuring that Plaintiff brought his CPAP machine.

Plaintiff offers no evidence that Defendant was aware that Plaintiff needed this

accommodation, nor that Defendant was required to provide this accommodation.

The Court thus grants Defendant’s motion for summary judgment as to the

disability discrimination/reasonable accommodation claim, Count VII.

III. Conclusion

For the reasons explained above, this Court grants Defendant’s motion for

summary judgment [69] and directs the Clerk to enter judgment in favor of Defendant

and against Plaintiff on all claims. All dates and deadlines are stricken. Civil case

terminated.

Dated: February 12, 2026 Entered:

i Ly £ 7

nited States District’#udge

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