Jones, Glenn E. v. Union Pacific

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-2038

GLENN E. JONES,

Plaintiff-Appellant,

v.

UNION PACIFIC RAILROAD COMPANY,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 3417—David H. Coar, Judge.

____________

ARGUED MAY 23, 2002—DECIDED SEPTEMBER 10, 2002

____________

Before FLAUM, Chief Judge, BAUER and ROVNER, Circuit

Judges.

BAUER, Circuit Judge. Plaintiff Glenn E. Jones sued

Union Pacific Railroad Company for violations of 42 U.S.C.

§ 2000e et seq. and 42 U.S.C. § 1981, after he was dis-

missed from his position for gross insubordination follow-

ing an incident at the rail yard where he worked. Jones

moved for summary judgment and Union Pacific responded.

The district court granted summary judgment in favor of

Union Pacific. Jones appeals, arguing the district court

erred procedurally in granting summary judgment sua

sponte without giving him notice and an opportunity to

respond; and that summary judgment should not have

been granted in favor of Union Pacific because disputed

2 No. 01-2038

issues of material fact remain. We affirm, finding Jones

has waived review of two of his three claims and that

the district court properly granted summary judgment on

the remaining claim.

BACKGROUND

Glenn E. Jones, a black male, was employed by the

Union Pacific Railroad. (Originally, Jones was employed

by the Chicago North Western Transportation Company.

The two companies merged in 1995.) From 1980 until

1998, Jones was a “coach cleaner”, and after completing

an apprenticeship in 1989, he was promoted to “carman”.1

On April 28, 1998, Jones was involved in the incident

which precipitated this suit. Jones worked a shift from

Thursday through Saturday, 8:00 a.m. to 4:30 p.m. On

the day in question, he left the shop where he worked

at 5:00 p.m. and walked across the rail yard tracks to-

ward an exit. At some point during the more than ten

minutes it took for Jones to cross nearly all the tracks

in the rail yard, Union Pacific Special Agent Brody observed

Jones walking across the tracks.2 (Under Illinois law,

1

The duties of “coach cleaners” involve cleaning and servicing

commuter rail cars after each trip. A “carman” performs a more

in-depth and lengthy service on rail cars, referred to as “rehabilita-

tion”.

2

Agent Brody was on surveillance duty at the Cal Avenue rail

yard because of significant trespassing problems encountered by

the railroad due, in part, to the fact that a City of Chicago auto

impound yard abuts the rail yard. From 1997 to 1998, some fifty-

eight persons were caught trespassing, and there were many

incidents of theft from the automobiles in the impound yard.

Agent Brody reported: “observed a black male carrying a hand-

bag walking south across the tracks towards 400 N. Francisco

(continued...)

No. 01-2038 3

railroad police have all the powers, while on railroad

property, of a full police officer.)

As Jones was making his way across the yard, Agent

Brody, in uniform, approached and stopped him to speak

as he crossed the main rail line. Agent Brody asked Jones

his reason for being in the yard and asked if he had iden-

tification.3 Jones’s and Agent Brody’s accounts of what

transpired after Agent Brody requested to see Jones’s

identification differ sharply.

According to Jones, when asked for identification he

showed his employee identification. Jones responded

indignantly, and although Agent Brody did not like his

tone of voice, he initially made nothing of it. Jones then

proceeded on his way until stopped again, on the side-

walk, by Agent Brody. While on the sidewalk, Jones stated

that Agent Brody threatened his job, and asked to see

his employee identification once again. Jones yelled for

a neighborhood person to call the Chicago Police. (The

sidewalk was not railroad property, and Agent Brody

possessed no authority or police powers on public prop-

erty.) The Chicago Police and Agent Brody’s supervising

officer, Special Agent Finger, arrived a few minutes la-

ter. Neither Jones nor Agent Brody were arrested.

2

(...continued)

Street. The black, male was wearing a knit hat and soiled clothing

typical of the trespassers that frequent the yard.”

3

Both parties cite Union Pacific’s guideline for conducting “field

interviews”. The guideline provides, in relevant part, that an of-

ficer may approach and question any person if the officer can

articulate a “reasonable suspicion” that the person may be in-

volved in criminal activity. There is no dispute that trespassing

is “criminal activity”. See 625 ILCS 5/18c-7503(1)(a); 720 ILCS

5/21-3.

4 No. 01-2038

Agent Brody tells a very different story. According to

Agent Brody, when he approached Jones on the tracks and

requested to see his identification, Jones replied in an

indignant tone with an expletive (“What is the problem,

motherfucker? I am an employee of the railroad.”). Jones

flashed Agent Brody an I.D., but would not let him ex-

amine it, again using derogatory language in the process

(“Look you white motherfucker, I have my ID right here.”).

Because of the potential danger associated with moving

trains, Agent Brody suggested they move off the tracks

to the sidewalk. Once off the tracks, Jones began yelling

at Agent Brody, using more expletives and racial epithets

(calling Brody a “white racist hillbilly motherfucker with

a gun” and telling Brody he was going to get his “white

ass fired”).

A crowd of people from the neighborhood began to

gather around Jones and Agent Brody. Jones then yelled

for someone to call the Chicago Police, stating: “this

white hillbilly motherfucker is harassing me”. Agent

Brody, fearing a physical confrontation between himself

and Jones or the crowd, wisely decided to leave the scene.

The Chicago Police and Special Agent Finger arrived mo-

ments after Agent Brody departed. While talking to Chi-

cago Police, Jones again referred to Agent Brody in rather

strong negative terms (“the motherfucker knows I’m an

employee. He’s just harassing me”). Special Agent Finger

suggested that they return to the rail yard to clear up

the issue. Jones asked the Chicago Police if he had “to

get in this motherfucker’s [Special Agent Finger’s] car”.

The record does not disclose whether Jones returned to

the rail yard with Special Agent Finger.

Jones was charged with insubordination and quarrel-

ing. An investigation of the incident was conducted by

“upper management”. None of the individuals involved in

the altercation (Agent Brody and Special Agent Finger)

were members of the investigation panel, nor did they

No. 01-2038 5

participate in the decision-making process. Superintendent

of Commuter Operations Greg Larson and Director-

Mechanical for Commuter Operations Rick Laue made

the decision to terminate Jones.

Jones was represented by the Union, given the opportu-

nity to make a statement, and call witnesses to testify

on his behalf. Jones called no witnesses, giving only a

statement. In that statement, Jones mentioned nothing

about the encounter, charge, or investigation being ra-

cially motivated. Instead, Jones stated that the officers

were patsies used to trump up charges against him be-

cause he was involved in “labor activities”. Jones said, “I

believe this is what this [incident] is about, about my

labor activities at Cal Avenue, in the Coach Yard.” (empha-

sis added).

Union Pacific maintains a graduated disciplinary policy,

ranging from Level 1 to Level 5. Discipline begins with

written reprimands and progresses to suspension and

dismissal. Rule 1.6 of the Operating Rules applicable to

employees prohibits, among other things, employees from

being insubordinate to a supervisor and quarrelsome or

discourteous to a fellow employee. A violation of Rule 1.6

is considered a Level 5 infraction, resulting in dismissal.

According to Union Pacific, the policy does not allow the

consideration of prior work history, discipline, or injuries

when a Level 5 infraction is under consideration.4

Union Pacific’s investigative and disciplinary authority

chose to believe the officers’ version of events and sus-

4

In his recitation of the facts, Jones states that he had an

exemplary attendance and work-related injury-free record. How-

ever, Jones leaves out the fact that he was previously dismissed

in 1988 for insubordination (another Level 5 infraction), but

reinstated under a leniency program in 1989. Regardless, neither

of these facts were considered when Union Pacific decided to

discharge Jones.

6 No. 01-2038

tained the charge of insubordination and quarreling;

Jones was dismissed from his position. Jones then later

filed suit in federal district court alleging racial discrimina-

tion. He moved for summary judgment and Union Pacific

responded. The district court denied his motion and granted

summary judgment in favor of Union Pacific.

ANALYSIS

We review the grant of a motion for summary judgment

de novo, viewing all facts in a light most favorable to the

non-moving party to determine if issues of material fact

necessitate a trial on the merits. See Clay v. Holy Cross

Hosp., 253 F.3d 1000, 1005 (7th Cir. 2001); see also FED. R.

CIV. P. 56(c). Only genuine disagreement over material or

dispositive facts will forestall summary judgment. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49

(1986). As we have stated before, “[i]n the employment

discrimination context, summary judgment is warranted

where ‘the evidence, interpreted favorably to the plaintiff,

could [not] persuade a reasonable jury that the employer

had discriminated against the plaintiff.’ ” Markel v. Bd. of

Regents of the Univ. of Wis. Sys., 276 F.3d 906, 910 (7th Cir.

2002) (quoting Palucki v. Sears, Roebuck & Co., 879 F.2d

1568, 1570 (7th Cir. 1989)).

A. Summary Judgment

Jones argues that the district court erred procedurally

by granting summary judgment sua sponte. Union Pacific

counters, stating that it did move for summary judgment

in its’ response to plaintiff’s motion for summary judgment.

Although granting summary judgment sua sponte is a

“hazardous” procedure which “warrants special caution”

and is often unnecessary, it remains permissible. Peckmann

v. Thompson, 966 F.2d 295, 297 (7th Cir. 1992); Sawyer

No. 01-2038 7

v. United States, 831 F.2d 755, 759 (7th Cir. 1987). When

there are no issues of material fact in dispute, a dis-

trict judge may grant summary judgment in favor of the

non-moving party or may grant summary judgment even

though no party has moved for summary judgment. See

Hunger v. Leininger, 15 F.3d 664, 669 (7th Cir. 1994). The

court may enter summary judgment sua sponte, as long

as the losing party is given notice and an opportunity

to come forward with its evidence. See Celotex Corp. v.

Catrett, 477 U.S. 317, 326 (1986); Goldstein v. Fid. and

Guar. Ins. Underwriters, Inc., 86 F.3d 749, 750 (7th Cir.

1996) (“The party against whom summary judgment

is entered must have notice that the court is consider-

ing dropping the ax on him before it actually falls.”).

Jones asserts that because the district court did not

specifically state that it was considering the defendant’s

response brief as a cross-motion for summary judgment—

or considering it sua sponte—that he was not on notice

to come forward with all of his evidence. However, the

facts belie this argument. Jones had moved for sum-

mary judgment and marshaled all the favorable evidence

available in support of that motion. Moreover, Jones

does not cite to any additional evidence to add to that

which he brought forward in his original motion. Hence,

the granting of summary judgment did not deprive Jones

of the opportunity to present any beneficial evidence. Cf.

Peckmann, 966 F.2d at 298.

Additionally, when Jones moved for summary judg-

ment both parties were on notice that summary judgment

was under active consideration. And the defendant’s re-

sponse to the plaintiff’s motion for summary judgment

put Jones on further notice by stating that the court

should consider the response “in the nature of a cross-

motion for summary judgment”. Thus, Jones had an

opportunity to respond to the defendant’s cross-motion

statement in his reply brief, but chose not to do so, and

8 No. 01-2038

raised no objection to the defendant’s request for sum-

mary judgment.

Jones was on notice that summary judgment in Union

Pacific’s favor was a distinct possibility. Jones argued in his

motion for summary judgment—it turns out ironically—

that there were no genuine issues of material fact. The

district court agreed with Jones and concluded there were

no genuine issues of material fact, but in applying those

facts to the law, granted summary judgment in favor of

Union Pacific. Granting summary judgment—whether sua

sponte or in response to defendant’s cross-motion—did not

deprive the plaintiff of any procedural safeguards. See

Goldstein, 86 F.3d at 750-51; see also Simpson v. Merch.

Recovery Bureau, Inc., 171 F.3d 546, 549 (7th Cir. 1999).

B. Discriminatory Job Assignments & Retaliation Claims

Before reaching the merits of the discriminatory job

assignments and retaliation claims, we must first de-

termine whether they were properly presented for review.

In his opening brief in this court, Jones only asserted

the district court erred in granting summary judgment

to Union Pacific sua sponte and by finding no evidence

of discriminatory discharge. And in his reply brief, Jones

argued that Union Pacific’s argument—that Jones failed

to raise the discriminatory work assignments issue in his

EEOC charge—was waived in this court. However, the

district court specifically granted summary judgment on

the discriminatory work assignment claim by conclud-

ing that Jones had failed to show pretext for Union Pa-

cific’s proffered reasons for work assignments. Finally,

neither the plaintiff’s nor the defendant’s briefs raise

the issue of retaliation.

By neglecting to raise the discriminatory job assignments

and retaliation claims in his opening brief, and by failing

to argue that the district court’s actual holding regard-

No. 01-2038 9

ing the discriminatory job assignments claim was in error,

Jones waived review of these two issues. See Sere v. Bd. of

Tr. of the Univ. of Ill., 852 F.2d 285, 287 (7th Cir. 1988)

(“We consistently and evenhandedly have applied the

waiver doctrine when appellants have failed to raise an

issue in their opening brief.”) (internal quotations and

citations omitted); Gabriel v. United States, 30 F.3d 75, 78

(7th Cir. 1994); cf. Kauthar SDN BHD v. Sternberg, 149

F.3d 659, 667-68 (7th Cir. 1998) (“[W]e have stated that

failure to address one of the [district court’s] holdings

results in a waiver of any claim of error with respect to

the court’s decision on that issue.”); Williams v. Leach,

938 F.2d 769, 772 (7th Cir. 1991); Landstrom v. Ill. Dep’t

of Children & Family Servs., 892 F.2d 670, 678 (7th

Cir. 1990).

C. Discriminatory Discharge

1. demonstrating a prima facie case

Jones’s discriminatory discharge claim proceeded under

the indirect method laid out in McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 803 (1973).5 In order to establish

a prima facie case of discrimination the plaintiff is re-

quired to show that: (1) he is a member of a protected

class; (2) his job performance was meeting his employer’s

legitimate expectations; (3) he suffered an adverse em-

ployment action; and (4) that other similarly situated

employees not in the protected class were treated more

favorably. Flores v. Preferred Technical Group, 182 F.3d

5

At some point, Jones apparently also argued direct discrimina-

tion. Union Pacific rebutted this argument in its’ appellate brief.

However, the district court only analyzed the issue under indi-

rect discrimination, and Jones abandoned any direct discrimina-

tion argument by arguing only pretext in his appellate brief. Sere,

852 F.2d at 287.

10 No. 01-2038

512, 515 (7th Cir. 1999). Jones clearly meets parts one

(he is a racial minority) and three (he was terminated

from his job). Part two requires Jones to show he was

satisfactorily performing his job—which included ad-

herence to Union Pacific’s rules and regulations regard-

ing employee conduct—and part four requires Jones to

demonstrate that other employees outside the pro-

tected class were treated more favorably in similar circum-

stances.

We have often noted that establishing a prima facie

case—which the plaintiff must do by a preponderance of

the evidence—is a condition precedent to the pretext

analysis. E.g., Wells v. Unisource Worldwide, Inc., 289 F.3d

1001, 1006 (7th Cir. 2002); Plair v. E.J. Brach & Sons, Inc.,

105 F.3d 343, 347 (7th Cir. 1997). An employee alleging

discrimination must demonstrate that he or she was

meeting the expectations of the employer either before or

up until their termination. Cf. Lim v. Tr. of Ind. Univ., No.

01-4295, slip op. at 8-9 (July 19, 2002) (finding plaintiff

failed to establish “that she was meeting IU’s legitimate

requirements regarding research and publishing.”); Sal-

vadori v. Franklin Sch. Dist., No. 01-3829, 2002 WL

1301393, slip op. at 10-11 (7th Cir. June 14, 2002) (finding

plaintiff “must show that she was performing well at

the time of her termination.”); Plair, 105 F.3d at 347.

The need to establish a prima facie case does not al-

ways arise; frequently employers concede the prima facie

case and simply offer a non-discriminatory justification.

And we often assume the existence of a prima facie case,

or consider part two of the test along with the issue of

pretext because many times the issues are intertwined.

See, e.g., Simmons v. Chi. Bd. of Educ., 289 F.3d 488, 492

(7th Cir. 2002). In the latter example, we have opted to

modify the flexible test provided by the Supreme Court in

McDonnell Douglas to meet the facts of a particular case,

analyzing part two of the test together with the related

No. 01-2038 11

issue of pretext. See McDonnell Douglas, 411 U.S. at 802

n.14; Texas Dep’t of Comty. Affairs v. Burdine, 450 U.S. 248,

253-54 n.6 (1981); Vakharia v. Swedish Covenant Hosp., 190

F.3d 799, 807 (7th Cir. 1999). In a few unusual cases,

where the employee was fired for a sudden and egregious

breach of company policy, we have even assumed part

two of the test was met and moved immediately to the

pretext issue. See Flores, 182 F.3d at 515; Curry v. Menard,

Inc., 270 F.3d 473, 477-78 (7th Cir. 2001).

The facts of this case call for a simultaneous review of

part two of the prima facie case and pretext—first review-

ing the non-discriminatory reason for the employment

action—because the reason for the plaintiff’s removal is

intertwined with the employer’s legitimate expectations.

2. part two of the prima facie case & pretext

If the plaintiff establishes a prima facie case the bur-

den of production shifts to the defendant to provide a

non-discriminatory reason for the employment action.

See Burdine, 450 U.S. at 255; Pilditch v. Bd. of Educ. of

the City of Chi., 3 F.3d 1113, 1117 (7th Cir. 1993) (“But

this burden is also quite light; the employer need not

persuade the court that he was actually motivated by the

reason he gives and the mere articulation of the reason

rebuts the prima facie case and puts the onus back on the

plaintiff to prove pretext.”). Union Pacific stated that it

fired Jones because of his conduct toward Agent Brody

and Special Agent Finger which amounted to insubordi-

nation and quarreling, violating company policy. See

Flores, 182 F.3d at 515 (“Insubordination is a legitimate,

non-discriminatory reason for firing an employee.”); Plair,

105 F.3d at 345 (same); see also McClendon v. Ind. Sugars,

Inc., 108 F.3d 789, 797 (7th Cir. 1997) (upholding the

district court’s finding that insubordination was a legiti-

mate non-discriminatory reason for plaintiff’s discharge);

12 No. 01-2038

Stringel v. Methodist Hosp., 89 F.3d 415, 418 (7th Cir.

1996) (same).

Since the defendant offered a non-discriminatory rea-

son for the employment action, the burden of proof shifted

back to the plaintiff to show pretext. Burdine, 450 U.S. at

256. Jones could satisfy this burden with direct or indi-

rect evidence. To establish pretext, Jones must show that

his race was the determining factor in his discharge, or

that but for his race he would not have been discharged.

Dale v. Chi. Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986).

To meet this burden, Jones must produce “significantly

probative admissible evidence” from which the trier of

fact could infer that the employer’s reason was false

and that the actual reason was discriminatory. King v.

Preferred Technical Group, 166 F.3d 887, 892-93 (7th Cir.

1999); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

515 (1993).

Jones proffers several details from the events in ques-

tion as proof of Union Pacific’s racial animus. Jones as-

serts that the initial decision to stop him was motivated

solely by race. As support, Jones cites Agent Brody’s

description of him. Agent Brody’s report provides that he:

“observed a black male carrying a hand-bag walking south

across the tracks towards 400 N. Francisco Street. The

black, male was wearing a knit had and soiled clothing

typical of the trespassers that frequent the yard.”6 Accord-

6

Jones argues that Agent Brody’s discriminatory animus,

evidenced by the description quoted above, influenced the decision

makers. We have long held that “statements by nondecision-

makers cannot satisfy a plaintiff ’s burden of proving discrimina-

tion.” E.g., Simmons, 289 F.3d at 492. The cases cited by Jones in

support of this argument provide a narrow exception when the

person is actively involved in the disciplinary process. See Russell

v. Bd. of Tr. of the Univ. of Ill. at Chi., 243 F.3d 336, 342 (7th Cir.

(continued...)

No. 01-2038 13

ing to Union Pacific, Agent Brody’s stop of Jones was made

because: trespassing in the rail yard is illegal and unsafe;

Agent Brody was on watch for trespassers; Jones was alone

and unfamiliar to Agent Brody; Jones was crossing the

middle of the busy train yard more than forty minutes

after the end of his shift using a route Agent Brody had

never seen any employee use before; and his clothing and

appearance matched that of prior trespassers.

While Jones agrees that the “use of the word ‘black’ was

a neutral physical description”; he claims that Agent

Brody wrongfully stereotyped him as a trespasser simply

because he was black. However, the physical description

is nothing more than that, and does not support Jones’s

contention. We have held before, and it would be a “sorry

state” indeed if today we held that an unadorned physical

description of a person which includes the person’s race

amounted to evidence of discriminatory intent. Plair, 105

F.3d at 348.

Next Jones asserts that pretext is evidenced by the fact

that what he did does not qualify as insubordination or

quarreling under the employee policy, therefore Union

Pacific’s proffered reasons for firing him are false. Jones’s

first argument is that he cannot be considered to be “quar-

relsome” with another employee because the policy only

applies to on-duty employees and he was off-duty and on

his way home. In the district court, Jones also attempted

to argue the entire confrontation occurred on the side-

walk. He has since admitted in his brief that the encoun-

ter began in the rail yard. Union Pacific interpreted its

employee conduct policy to include actions of an employee,

6

(...continued)

2001); Hunt v. City of Markham, Ill., 219 F.3d 649, 652 (7th Cir.

2000). In this case Agent Brody merely testified during the

investigation process.

14 No. 01-2038

on or off-duty, while on railroad property. Jones provided

no evidence to contradict this interpretation or to give

examples demonstrating that the policy had never before

been interpreted in that manner. Therefore, if Union Pa-

cific believed Jones engaged in improper behavior toward

Agent Brody, it could conclude that Jones violated com-

pany policy by being quarrelsome. Jordan v. Summers,

205 F.3d 337, 343 (7th Cir. 2000) (holding that an em-

ployer’s reasons for terminating an employee may be “mis-

taken, ill considered or foolish”, but “so long as [the em-

ployer] honestly believed those reasons pretext has not

been shown.”).

Jones also claims that Agent Brody was not his “supervi-

sor” under company policy because Brody did not super-

vise his actual work in the rail yard; that is, because

Agent Brody was not his “supervisor” he could not be guilty

of being “insubordinate” to a supervisor. Union Pacific

interpreted the term “supervisor” in the company policy

to include railroad police officers. The district court ex-

amined the common dictionary definition of “supervisor”

because the policy did not define the term. The court

found the term broadly included “anyone with direction

or control over others.” As Agent Brody is not only an

employee of the rail yard, but also possesses the full power

of a police officer while on rail property, the court con-

cluded he had direction and control over others. Once

again, Jones has failed to provide any evidence which

demonstrates that this interpretation of the policy is

unreasonable or blatantly false. Our reading of the def-

inition and the interpretation by Union Pacific comports

with that of the district court. As Jones was an employee

on railroad property, he should have listened to Agent

Brody and produced his identification. See Olsen v. Mar-

shall & Ilsley Corp., 267 F.3d 597, 602 (7th Cir. 2001);

Walker v. Glickman, 241 F.3d 884, 890 (7th Cir. 2001);

Adreani v. First Colonial Bankshares Corp., 154 F.3d 389,

No. 01-2038 15

398 (7th Cir. 1998); O’Connor v. DePaul Univ., 123 F.3d

665, 670 (7th Cir. 1997).

Finally, Jones asserts that he was not insubordinate

or quarrelsome with Agent Brody. His argument is, in

essence, that under the applicable summary judgment

standards we must accept his version of the facts as true,

and, as such, Union Pacific could have no legitimate rea-

son for firing him. Jones misapprehends the applicable

standards. While we do accept his version of the facts

as true, the actual issue is not whether Union Pacific’s

account of events is correct, rather it is whether Union

Pacific honestly believed the report of its officers.7 “[A]r-

guing about the accuracy of the employer’s assessment

is a distraction . . . because the question is not whether

the employer’s reasons for a decision are ‘right but wheth-

er the employer’s description of its reasons is honest.’ ”

Kariotis v. Navistar Int’l Transp. Corp., 131 F.3d 672, 677

(7th Cir. 1997) (quoting Gustovich v. AT&T Communica-

tions, Inc., 972 F.2d 845, 848 (7th Cir. 1982) (emphasis in

original)).

Jones cannot show that Union Pacific’s interpretation

and application of company policy was improper, nor can

he demonstrate that the company’s explanation (that it

7

Jones attempts to cast this dispute as an issue of material fact

which would preclude summary judgment; however, as shown

above, the conflict is over immaterial and irrelevant facts Jones

has attempted to present as relevant. This key difference has

apparently even confused Jones. On page eighteen of his opening

brief, Jones states that “[g]enuine issues of material fact exist”,

yet, in his conclusion, on page twenty-five, Jones maintains that

“[i]t requires only a limited rehearsal of the previously cited

evidence to demonstrate the absent [sic] [absence] of a material

issue of fact”. In addition, we again note that it was Jones who

moved for summary judgment asserting there were no genuine

issues of material fact remaining in conflict.

16 No. 01-2038

believed Agents Brody and Finger over Jones) was dis-

honest. See Kulumani v. Blue Cross Blue Shield Ass’n, 224

F.3d 681, 685 (7th Cir. 2000). Furthermore, at the time

the decision to discharge Jones was made, he said noth-

ing about the charge or investigation being racially moti-

vated. Rather, he stated that the officers were patsies

used to trump up charges against him because he was

involved in “labor activities”. In fact, the only person

who made negative comments about someone’s race was

Jones. And if Union Pacific believed its officers’ version of

events, it would have been remiss in not disciplining Jones

for his conduct. See Lenoir v. Roll Coater, Inc., 13 F.3d

1130, 1133 (7th Cir. 1994) (noting that racial epithets

have “no place in the employment setting”). As the plain-

tiff could not demonstrate that the employment decision

was the result of some prohibited consideration, this court

will not “sit as a super-personnel department that re-

examines an entity’s business decisions.” Dale, 797 F.2d

at 464 (paraphrasing Kephart v. Inst. of Gas Tech., 630

F.2d 1217, 1223 (7th Cir. 1980) (per curiam).

3. part four of the prima facie case

Jones also failed to establish part four of the prima facie

case. He has not provided a single example of another

employee (not in the protected class) being treated more

favorably under similar circumstances. In his opening

appellate brief, Jones failed to provide any evidence that

met part four of the test. This constitutes waiver of the

issue. Sere, 852 F.2d at 287. In his reply brief, Jones

provides a cursory, unusable comparison to another em-

ployee who was fired for being involved in an altercation

with another employee at work, not for insubordination.

Jones also neglected to mention that two employees

were terminated, one black and one white, and that both

were later reinstated on a leniency basis, with the black

No. 01-2038 17

employee being reinstated first. Additionally, Jones omitted

the fact that he was previously terminated for insubordi-

nation and he too was allowed to return on a leniency

basis. See supra note 4. Hence, Jones failed to establish

part four of the test.

CONCLUSION

No issue of material fact, pertinent to the disposition

of this case, remains in conflict. Jones failed to make out

a prima facie case because he cannot show that other

similarly situated employees outside the protected class

were treated differently, or that the reasons offered for

his discharge, insubordination and quarreling, were pre-

textual. During the investigation which resulted in his

discharge, Jones stated that the encounter between him-

self and Agent Brody was orchestrated by management

because of their displeasure with his “labor activities”.

Jones never mentioned his belief that the discipline

was motivated by racial animus. The district court’s grant

of summary judgment is AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-97-C-006—9-10-02