Frank Burks v. Union Pacific Railroad Compan

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-2707

FRANK BURKS AND CORNELIUS L. JONES, JR.,

Plaintiffs-Appellants,

v.

UNION PACIFIC RAILROAD COMPANY,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:12-cv-08164 — Maria Váldez, Magistrate Judge.

____________________

ARGUED FEBRUARY 12, 2015 — DECIDED JULY 13, 2015

____________________

Before EASTERBROOK, KANNE, and HAMILTON, Circuit

Judges.

KANNE, Circuit Judge. Appellants Frank Burks and Cor-

nelius Jones were, at the relevant times, employed by the

Union Pacific Railroad Company (“Union Pacific”). They

claim that Union Pacific denied them the opportunity to take

a test that was required for promotion, and did so based on

impermissible retaliation. Burks and Jones each argue that

Union Pacific retaliated against them for having engaged in

2 No. 14-2707

protected activity—namely, filing complaints of racial dis-

crimination. The district court granted summary judgment

for Union Pacific. For the reasons explained below, we affirm

the judgment of the district court.

I. BACKGROUND

Burks and Jones were hired as “Signal Helpers” by Union

Pacific. They both reported to orientation in Boone, Iowa, on

January 3, 2011. During orientation, they were informed that

they would be employed through December 31, 2015, or un-

til the company “moved in a different direction.” A Signal

Helper’s job duties included construction, installing wire,

digging trenches, and climbing poles. The position carried a

90-day probationary period, and both Burks and Jones were

subject to a collective bargaining agreement that covered the

terms and conditions of their employment. Burks and Jones

were the only African-American members of their Signal

Helper class.

A. Employment History

1. Burks

Following orientation, Burks was assigned to Zone 5,1

where he reported to foreman Chad Smith. Burks was as-

signed primarily to dig trenches. On February 9, 2011—

twenty days into Burks’s employment and probationary pe-

riod—Manager of Signal Construction Morgan Riley di-

rected Chad Smith to terminate Burks’s employment. Chad

Smith stated to Burks that “it wasn’t working out.”

1 Union Pacific appears to divide its rail areas into numbered geographic

zones, but the parties do not offer background information on this topic.

No. 14-2707 3

In April 2011, Burks lodged a complaint with Melissa

Schop in Union Pacific’s Equal Employment Opportunity

department alleging racial discrimination in connection with

his termination. After investigating the complaint, Schop

found no evidence that Burks had been fired because of his

race. She did, however, conclude that he had not been

properly coached or given an opportunity to improve his

performance before his employment was terminated. She

offered Burks reinstatement in exchange for signing a gen-

eral release that included a new 90-day probationary period.

Burks signed the form and returned to work on May 24,

2011.

Burks was again assigned to Zone 5. He reported to

foreman George Hoy, who in turn reported to Riley. Burks

worked for Hoy for seven days before requesting a transfer.

He was transferred to Zone 4 and reported to Rod Storbeck,

with the same job responsibilities. Burks completed his pro-

bationary period on August 23, 2011. He was later notified

that Union Pacific abolished the Signal Helper position, ef-

fective October 10, 2011. He was subsequently furloughed.

2. Jones

Like Burks, Jones was assigned to Zone 5 following his

orientation, reporting to foreman Clay Smith. He was later

assigned to Zone 4, reporting to foreman Jeremy Bates, and

then returned to Zone 5, reporting once again to Clay Smith.

Jones primarily dug trenches. He completed his probation-

ary period in April 2011.

On June 8, 2011, Jones called Schop to report a comment

that he perceived as racially discriminatory. Referring to ei-

ther a gate or a truck, Clay Smith had commented that it was

4 No. 14-2707

“working like a striped monkey” or “running like a striped-

ass monkey.” Jones agrees that the remark was not made di-

rectly to him or another person, but it was made in his pres-

ence. He perceived the comment to be a derogatory refer-

ence to his biracial children.

After investigating the complaint, Schop concluded that

the comment was not racially motivated. Jones claims that

after he made the complaint, Clay Smith would only com-

municate with him through intermediaries.

Like Burks, Jones was notified that the Signal Helper po-

sition was being abolished, and he was subsequently fur-

loughed.

B. Plaintiffs’ Applications for Promotion

A Signal Helper could, through a multi-step process, be-

come eligible for promotion to the position of Assistant Sig-

nal Person. 2 First, he must successfully complete his 90-day

probationary period. Second, he must apply for an open As-

sistant Signal Person position. Third, he must be invited to

take the “Skilled Craft Battery Test” (the “SCBT”). After

passing the SCBT, he would be considered eligible for pro-

motion to Assistant Signal Person.

The plaintiffs’ claims center on whether they were denied

the opportunity to take the SCBT as a result of impermissible

retaliation. So we delve rather deeply into the facts sur-

2 The duties of Signal Helpers and Assistant Signal Persons overlapped

to some degree. Assistant Signal Persons, however, could perform

skilled tasks, such as connecting electrical wiring, that Signal Helpers

were not permitted to perform.

No. 14-2707 5

rounding the SCBT and Union Pacific’s promotion proce-

dures. It is worth noting at the outset, however, that neither

the plaintiffs’ briefs nor materials in the record below fully

explain Union Pacific’s promotion procedures. So gaps exist

in the factual background as it has been presented to us.

It is uncontested that both Burks and Jones passed their

90-day probationary periods, so both were eligible to apply

for open Assistant Signal Person positions. According to

Schop, whose account of the application process appears to

be uncontested, employees could apply in two ways.

Under what we’ll term the “external” method, the em-

ployee could submit an application through Union Pacific’s

public website. The company listed its open Assistant Signal

Person positions in every geographic zone and “seniority

district” 3 on the site. The employee would then apply sepa-

rately to each open position that was of interest—say, a posi-

tion in Addis, Louisiana, or in Waco, Texas. The applicant

could apply for positions in any seniority district through

this method.

Under the “internal” route, the employee could apply

into a centralized applicant pool. That pool would be open

only to current Union Pacific employees. If an Assistant Sig-

nal Person position became available in the applicant’s sen-

iority district, the employee would be invited to take the

SCBT. Applications to the pool eventually expire, after which

time an applicant must reapply if he remained interested in

taking the SCBT.

3 The term “seniority district” appears throughout the record, but re-

mains undefined. The parties shed no light on its meaning.

6 No. 14-2707

An employee could elect to apply through either or both

of the application methods. Under either method, it is un-

clear whether any additional “screening” steps were taken

by Union Pacific between an application’s submission and

any subsequent invitation to take the test. Some record in-

formation suggests that someone—either a human resources

official or someone else—would review the applicants to

make sure they met all listed qualifications. Other evidence

suggests that applicants must have obtained positive refer-

rals from their current managers in order to be considered,

implying that some form of review occurred after the initial

submission. In any event, the plaintiffs provide no infor-

mation about this portion of the promotion process, so the

factual description on this point remains absent.

1. Burks

After Burks completed his probationary period in August

2011, he spoke to foreman Storbeck about his promotion po-

tential to Assistant Signal Person. According to Burks, Stor-

beck made a phone call to an employee named Nate Gut-

mann to ask how a signal helper could be promoted to As-

sistant Signal Person. Gutmann in turn asked another em-

ployee, Bernard Kachnowski, what actions were required.

According to Burks, Kachnowski faxed a response to Gut-

mann, which was then sent to Storbeck, stating that “to be

promoted, the signal helpers have to take a series of tests to

see if they [sic] capable of learning electronic background.”

The record suggests that Burks was mistaken about the

form this communication took—it appears to have been an

email exchange between Storbeck, Gutmann, and Ka-

chnowski. In any event, the email stated substantially what

Burks related—that the Signal Helpers must take a series of

No. 14-2707 7

tests to see if they were “capable of learning the electronic

part of being a Signalman.” In that email, Kachnowski also

stated that “Jesse [Stearns] can call someone from HR to set

up the testing.”

From this point, the facts of Burks’s application process

become muddled. In his brief, Burks claims that he believed

that Stearns was setting him up with HR to take the SCBT.

He cites to his own deposition testimony in support of that

contention, but the cited testimony does not indicate wheth-

er Burks was at the time aware of the communications pass-

ing between Storbeck, Gutmann, and Kachnowski. Nor does

it indicate that anyone told Burks that the SCBT was being

arranged for him.

Burks also claims that he was not informed that he was

required to apply for an open position in order to be invited

to take the SCBT, either prior to or immediately following

his 90-day probationary period. He states that he was in-

formed of the need to apply for an open position only at the

time that he was notified that his Signal Helper position was

being abolished. The record indicates, however, that in either

June or July, Burks became aware that other employees from

his Signal Helper class had been told to go online to apply to

open positions.

According to Union Pacific, and this appears to be uncon-

tested by Burks, Burks applied for an open Assistant Signal

Person position in October of 2011. He applied only via the

“internal” application method, joining the “pool” of eligible

applicants. Union Pacific claims that no positions became

available in Burks’s seniority district, and his application to

the pool expired in January of 2012. Burks did not reapply,

and he was never invited to take the SCBT.

8 No. 14-2707

2. Jones

As for Jones, recall that he completed his probationary

period in April 2011. Jones claims that he submitted an

online application for open positions, apparently using the

internal method, in May 2011. After hearing nothing from

the railroad (or being told there were no positions availa-

ble—the evidence is contradictory on this point), he contact-

ed his union representative, Harry Doucet, for help. Doucet

in turn contacted Union Pacific by email. Employee Tonya

Eggspuehler responded that there was no application on file

for Jones. She provided by email the link through which

Jones should apply to the pool. Doucet told Jones to reapply

on or about June 28, 2011, the same day he communicated by

email with Eggspuehler. Jones did not apply to the pool until

September 2011, and his application expired in January 2012.

He did not reapply, and he was never invited to take the

SCBT.

C. District Court Proceedings

Burks and Jones filed suit in the Northern District of Illi-

nois alleging, among other claims, that Union Pacific retali-

ated against them for having engaged in protected activities,

in violation of Title VII of the Civil Rights Act of 1964. They

claimed that Union Pacific denied them the opportunity to

take the SCBT, and thereby denied them a promotion. In

Burks’s case, he alleges that Union Pacific retaliated against

him for having filed a racial discrimination complaint fol-

lowing his termination in February 2011. In Jones’s case, he

alleges retaliation for having filed the racial discrimination

complaint against Clay Smith.

No. 14-2707 9

Following discovery, Union Pacific moved for summary

judgment on all claims. Along with their response, the plain-

tiffs electronically filed a number of exhibits. Under Docket

Number 71, the plaintiffs filed a series of documents num-

bered 1 through 9. Under Docket Number 72, the plaintiffs

filed more documents, numbered 11 through 15. Those doc-

uments, however, were actually duplicates of several of the

exhibits that had been filed as 1 through 9. No document

numbered “10” was electronically filed, and at Docket Num-

ber 73, a second Exhibit 11 was filed.

This error resulted in several deposition transcripts never

being electronically filed or served on opposing counsel: the

depositions of Burks, Doucet, Riley, Schop, and Clay Smith.

Hard copies of the depositions were included, however,

along with copies of other documents that were delivered to

the judge’s courtroom deputy clerk. The court did not con-

sider these depositions in conducting its summary judgment

analysis.

The district court granted summary judgment to Union

Pacific on all claims, including the retaliatory failure-to-

promote claims. The court analyzed those claims under both

the direct and indirect methods of proof and concluded that

the plaintiffs put forward no evidence to show that Union

Pacific prevented either applicant from applying for open

positions or taking the SCBT. The court also found that the

plaintiffs offered no facts showing that there were any open

Assistant Signal Person positions during the time their ap-

plications were active. And finally, the court concluded that

the plaintiffs offered no examples of other employees out-

side the protected class who were not better qualified but

promoted during that time period.

10 No. 14-2707

The plaintiffs appeal the grant of summary judgment.

II. ANALYSIS

The plaintiffs argue that the district court erred in grant-

ing summary judgment because: (1) the court erroneously

disregarded the deposition transcripts that the plaintiffs neg-

ligently failed to e-file; and (2) the plaintiffs established gen-

uine issues of material fact regarding a retaliatory failure to

promote.

We conclude that the plaintiffs have not raised any genu-

ine issues of material fact regarding a retaliatory failure to

promote, and they point to no evidence in the disregarded

transcripts that would have created any genuine issues of

material fact. Therefore, we need not decide whether the dis-

trict court erred in disregarding the transcripts that were not

properly e-filed.

A. Standard of Review

We review a grant of summary judgment de novo, “re-

viewing the record and the inferences drawn from it in the

light most favorable to the nonmoving party.” Grayson v. City

of Chicago, 317 F.3d 745, 749 (7th Cir. 2003). Summary judg-

ment is appropriate when “the movant shows that 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).

B. Retaliatory Failure to Promote

Title VII makes it unlawful “for an employer to discrimi-

nate against any of his employees or applicants for employ-

ment … because he has opposed any practice made an un-

lawful employment practice by [Title VII].” 42 U.S.C.

§ 2000e-3(a). In order to prove unlawful retaliation, Jones

No. 14-2707 11

and Burks may proceed under the familiar direct and indi-

rect methods of proof. See Tomanovich v. City of Indianapolis,

457 F.3d 656, 662 (7th Cir. 2006).

Under the direct route, they may provide either “smok-

ing gun” or circumstantial evidence. Smoking gun evidence

typically requires an admission of discriminatory intent. See

Tank v. T-Mobile USA, Inc., 758 F.3d 800, 805 (7th Cir. 2014).

Individual pieces of circumstantial evidence, on the other

hand, may be combined to raise an inference of discrimina-

tory intent. Such circumstantial evidence may include

“(1) suspicious timing, ambiguous oral or written state-

ments, or behavior toward or comments directed at other

employees in the protected group; (2) evidence, whether or

not rigorously statistical, that similarly-situated employees

outside the protected class received systematically better

treatment; and (3) evidence that the employee was qualified

for the job in question but was passed over in favor of a per-

son outside the protected class and the employer’s reason is

a pretext for discrimination.” Hutt v. AbbVie Products LLC,

757 F.3d 687, 691 (7th Cir. 2014).

Under the indirect route, Jones and Burks must operate

within the familiar burden-shifting approach. They must

first establish a prima facie case of discrimination. In the retal-

iatory failure-to-promote context, they must show that:

(1) they engaged in statutorily protected activity; (2) they

applied for and were qualified for the positions sought;

(3) they were rejected for those positions; and (4) the em-

ployer granted the promotions to others who did not engage

in statutorily protected activity, and who were not better

qualified than the plaintiffs. See Carter v. Chicago State Uni-

versity, 778 F.3d 651, 660 (7th Cir. 2015).

12 No. 14-2707

If they establish that prima facie case, the burden then

shifts to Union Pacific to articulate a legitimate, non-

discriminatory reason for the employment action. The bur-

den then shifts back to Jones and Burks to prove that Union

Pacific’s stated reasons were pretextual. Vaughn v. Vilsack, 715

F.3d 1001, 1006 (7th Cir. 2013).

We discuss the appellants’ claims in turn.

C. Burks

Under both the direct and indirect methods, Burks has

not established a genuine issue of material fact regarding his

retaliation claim, because he has not put forward any facts to

show that Union Pacific denied him the ability to take the

SCBT.

Burks appears to argue that he was denied the oppor-

tunity to take the SCBT on two separate occasions—first,

when he thought his supervisor was arranging it for him;

and second, after he submitted his internal application to the

pool.

As for the first denial, Burks argues that he was “trying

to take the test” in August 2011, after he had completed his

probationary period. From the record, it appears that the on-

ly effort Burks made at that time to seek promotion was to

ask his supervisor, Storbeck, about whether he might be

promoted. Burks makes the repeated assertion that this con-

stituted an “application” under the internal application pro-

cedure, and that the internal method did not require “apply-

ing through the internet.” He asserts that any Union Pacific

claims to the contrary are “less than truthful.”

There are at least two problems with Burks’s argument.

First, he presents no evidence to support the contention that

No. 14-2707 13

merely speaking to a supervisor about promotion constitut-

ed an “application” under Union Pacific’s procedures. Nor

has he presented any evidence that the recommendation of a

supervisor to another party—a human resources official or

anyone else—would constitute an application. He repeatedly

references a letter written by Schop as supporting his posi-

tion, but it does nothing of the sort. The relevant portion of

that letter simply stated that “[t]he second way to be pro-

moted from a Signal Helper to an Assistant Signal Person is

to go through the internal promotion process. In this case,

Signal Helpers apply to a pool.” It did not outline what pro-

cedures such an internal application would take, and it no-

where suggested that communicating interest to a supervi-

sor would be enough.

Second, other evidence submitted by Burks shows that

the “internal” application was, in fact, submitted via an

online system. In an email responding to plaintiff Jones, for

example, Eggspuehler confirmed that she didn’t have an ap-

plication on file for him. So she sent the hyperlink through

which Jones could apply online. Eggspuehler stated, “I’ve

included the link where he needs to put in his application.

As you know, we are only posting a pool and they only have

to submit their application once every six months.” The

“pool” language clearly refers to the internal method, as the

external method required applicants to apply to each open

job individually. Based on this record evidence, Burks’s oral

inquiry was not enough.

Burks next relies on the email communication between

Storbeck, Gutmann, and Kachnowski to show that he was

denied the opportunity to take the SCBT shortly after he

completed his probationary period. In that email exchange,

14 No. 14-2707

Gutmann asks Kachnowski, “What are the steps needed to

get the helpers into the assistant signalman training?” Ka-

chnowski responds, “They need to take a series of tests to

see if they are capable of learning the electronic part of being

a Signalman. Jesse [Stearns] can call someone from HR to set

up the testing.” But other evidence—including, at least,

Schop’s account of the hiring procedures, and Riley’s deposi-

tion testimony—suggests that Kachnowksi’s statement about

Stearns was incorrect. Burks argues that this statement by

Kachnowski shows that Burks was “given the run-around,”

and reflects a retaliatory denial of a promotion opportunity.

He argues, it seems, that he was somehow misled into be-

lieving that he was not required to apply for an open posi-

tion, and that Stearns was taking care of it for him.

We cannot draw the conclusion that Burks was “given

the run-around,” for the following reasons. First, Burks has

not provided any evidence that anyone—Storbeck or any

other individual—communicated to Burks that Stearns was

setting up the SCBT for him. In order for Kachnowski’s

statement to carry any retaliatory force, Burks must show

that it prevented him from following the proper application

procedures. Burks has not provided any facts to show he

was even aware of Kachnowski’s statement—let alone that

he acted upon it. Second, Burks has provided no evidence

that Kachnowski had any knowledge of Burks’s prior race-

discrimination complaint. Without that knowledge, Ka-

chnowski would have had no basis for retaliatory behavior.

And third, in order to impute a retaliatory motive to the oth-

er two members of the communication—Storbeck and Gut-

mann—one would have to believe that the email communi-

cation constitutes evidence of a silent conspiracy to mislead

Burks into believing that the SCBT was being set up for him.

No. 14-2707 15

That is not a reasonable inference to draw from the evidence

presented.

As for the second denial, Burks argues that he was again

prevented from taking the SCBT during the period that he

had an application on file. Burks does not dispute Union Pa-

cific’s contention that an applicant would be invited to take

the SCBT only if an Assistant Signal Person job became

available. He argues that Union Pacific has outright lied in

stating that no jobs became available during the time that

Burks had an application on file.

Burks makes this argument, quite simply, by misstating

the record evidence. According to Burks, Schop stated in a

letter that Burks was eligible for a position “in any seniority

district.” Schop’s letter, however, stated that applicants ap-

plying through the external method could apply for positions

“in any seniority district.” As for the internal method,

Schop’s letter is exceedingly clear: “When a position opens in

the applicant’s seniority district, he/she is invited to take the

Skilled Craft Battery Test” (emphasis added). Burks never

applied for any positions through the external method—

only the internal one. So even if positions in other seniority

districts became available, those positions would not have

affected Burks’s eligibility to take the SCBT.

Burks does not present any facts to suggest that positions

within his own seniority district became available while he

had an application on file. Burks asks us to consider the

deposition transcript, and related exhibits, from union rep-

resentative Doucet. He claims that Doucet’s testimony shows

that “the railroad was hiring Assistant Signal Persons during

the time when plaintiffs were being given the run-around.”

16 No. 14-2707

Doucet’s testimony did nothing more than establish that

some individuals started work as Assistant Signal Persons

between October 2011 and January 2012 in Zones 4 and 5.

Doucet explicitly stated that he had no idea when those posi-

tions became available, when those applicants applied, or

whether they were internal or external applicants. He also

said nothing about the seniority districts of those positions

or applicants. Even considering Doucet’s testimony, which

was likely not considered by the district court, Burks simply

does not put forward any facts to show that positions be-

came available in his seniority district at the time he had an

application on file.

Because Burks cannot establish that Union Pacific denied

him the opportunity to take the SCBT, he cannot prevail un-

der either the direct or the indirect method of proof.

D. Jones

Jones also appears to argue that he was twice denied the

opportunity to take the SCBT. First, Jones argues that he

tried to apply for an open position internally in June 2011

and was “given the run-around.” In his deposition, Jones

testified that he submitted an online application in June and

never received a response from Union Pacific. Jones then re-

quested assistance from Doucet, who emailed employees at

Union Pacific on June 28, 2011. Union Pacific employee Egg-

spuehler responded within three hours, stating that Jones

had no application on file. She provided the link through

which Jones should reapply, as well as an explanation of the

process. Doucet testified that he communicated this infor-

mation to Jones immediately. Jones did not reapply until

September 3, 2011.

No. 14-2707 17

This chain of events does not represent a “run-around.”

First, Jones provides no factual basis upon which to con-

clude that the initial application he claims he submitted was

somehow lost or scuttled due to retaliatory motives. As the

district court stated, “[h]is supposition about possible nefar-

ious motives on UP’s part does not create a triable issue of

fact.” Burks v. Union Pacific Railroad, No. 12 C 8164, 2014 WL

3056529, at *6 (N.D. Ill. Jul. 7, 2014). Second, Jones provides

no basis upon which to infer retaliatory motives on the part

of Eggspuehler, or any other unnamed Union Pacific em-

ployees, after they were made aware of his attempts to ap-

ply. Eggspuehler provided Jones, through Doucet, with the

information he needed to submit an application. She did so

in a timely and transparent manner. And Jones provides no

evidence that Eggspuehler, or anyone else in her depart-

ment, knew of his prior race-discrimination complaint. Final-

ly, Jones does not provide any evidence to suggest that his

delay in applying (or reapplying)—over two months after

this communication—was due to anyone else’s involvement.

This chain of events does not constitute a denial of the op-

portunity to take the SCBT.

Jones’s second argument is identical to Burks’s—that he

was denied the opportunity to take the SCBT while his ap-

plication was on file. We will not belabor the point—his ar-

gument fails for the same reasons that Burks’s argument

failed.

III. CONCLUSION

For the reasons explained above, the judgment of the dis-

trict court is AFFIRMED.