that neither hearing officer Demotses (who found him guilty of
the charges) nor General Manager Steve McClarty (who later made
the decision to terminate him) nor Manager of Labor Relations
Valorie Giulian (who denied his second-level appeal)
discriminated against him on the basis of his sex or age (A. St.
4967-70; J. Dep. 108-12 ). And he does not even dispute that
Hriczak denied his third-level appeal because “the record
contained substantial evidence of probative value that he
committed the infractions with which he was charged” (A. St.
973).

That different decisionmakers made the determinations to
allow Jackson’s leniency reinstatement and to deny Jessup’s
third-level appeal further belies any inference of discrimination

(Radue_v. Kimberly Clark Corp., 219 F.3d 612, 618 (7th Cir.

2000); Timms v. Frank, 953 F.2d 281 (7th Cir. 1992)). It was

Miller who denied Jackson’s third-level appeal and later decided

Amtrak ticket agent as payment for two train tickets, (2) Jessup
provided Jackson with $150 worth of service vouchers upon
Jackson’s request and (3) Jessup mailed Brooks vouchers worth
$50, which Brooks attempted to use towards the purchase of a
ticket (A. Ex. A at 23-24, 27). Jessup attempted to provide an
explanation for each incident, testifying that (1) he never gave
service vouchers to his daughter--instead it was his son who took
the vouchers without Jessup’s knowledge and gave them to someone
who forged his daughter’s name; (2) he was not aware that
Jackson’s use of the vouchers would be improper, although he knew
she planned to use them to discount a fare for a friend; and (3)
the vouchers he sent to Brooks were intended only as “railroad
memorabilia” (A. Ex. A 92-93, 100, 109, 128). Demotses
permissibly found that Jessup’s testimony was “almost completely
devoid of any degree of credibility,” while the testimony of
Krueger and Amtrak’s other witnesses was found to be credible (A.
Ex. Bat 4).

13


First, Jessup’s daughter Kristin submitted fifteen vouchers
worth $50 each to an Amtrak ticket agent as payment for two
round-trip tickets from Chicago to Los Angeles for her friends
(id. 921). Because both tickets were issued in her name, Kristin
later asked Amtrak to get the names changed (J. St. 4112). When
she was told that the names could not be changed and that the
vouchers should not have been used to purchase the tickets, she
returned them unused to Amtrak’s customer relations department

(id. §113) .3

Second, Jessup gave expired vouchers worth $150 to an Amtrak
ticket agent named Janet Jackson (“Jackson”) (id. 9120, 127).
Jackson received approval from Amtrak to use the expired
vouchers, and she obtained a ticket discounted by $150 fora

friend (id. §§123-25, 127). As discussed below, Jackson was

3 A. Rep. §9112-13 contests J. St. §§112-13 as based on
purportedly inadmissible hearsay--the sworn testimony of Kristin
Jessup before a court reporter (J. Ex. 5). Although that
testimony is labeled as a “deposition,” Amtrak complains that it
is in violation of the Rules because it was taken without notice
to Amtrak's counsel. Be that as it may, the cases cited by
Amtrak--cases that state the unexceptional proposition that a
document labeled as an affidavit but unsigned by the affiant does
not satisfy Rule 56(e)--are irrelevant to, and in no way impair,
the use of a sworn statement such as J. Ex. 5. Nor is Amtrak's
invocation of 28 U.S.C. §1746, which deals with the use of
unsworn declarations, at all relevant. Here the Kristin Jessup
statement was given under oath (and was expressly so certified by
the court reporter)--it is surely of no moment that Tr. 14, part
of the court reporter's certification, says “The signature of the
witness was waived by agreement” but that Amtrak was not one of
those so agreeing. In candor, Amtrak's contention is unworthy of
its able counsel.


(the situation as between Jessup and JacksonTM), has been held
insufficient (on its own) to present a prima facie case of age

discrimination (Hartley v. Wisconsin Bell, Inc., 124 F.3d 887,

892 (7th Cir. 1997)).

To be sure, a triable claim may still be presented through
evidence that the employer viewed plaintiff's age to be
significant (id. at 893; Bennington, 275 F.3d at 659). But here
Jessup has presented no evidence whatever that Amtrak’s decisions
regarding his employment were motivated by age.!? Hence Amtrak’s
summary judgment motion must be and is granted as to Jessup’s

ADEA claim as well.
Conclusion

Jessup obviously believes that he was treated unfairly by
Amtrak. That is (to say the least) open to serious question, but
what controls here is his total inability to present evidence
from which a reasonable inference of discrimination may fairly be

drawn. To frame the matter in Rule 56 terms, he has not shown a

1 Jessup’s birthdate is January 4, 1947 (A. St. 44), so
that when he was terminated by Amtrak in October 1998 he was 51
years old. Jackson, Jessup’s sole comparator, was born on May 8,
1954 and was 44 years old at the time of her termination (A. St.

24).

#2 Jessup argues that Hriczak had previously discriminated
against him by denying his request for a leave of absence of
unlimited duration in 1997 when one had been granted to a younger
employee (J. Mem. 19-20). But contrary to Jessup’s assertion
there is no record evidence that the younger employee’s leave was
for an unlimited duration (J. St. §140, J. Ex. 1 at 119).
Jessup’s unsupported contention is certainly not evidence of age-
based hostility.

17


F.3d 597, 600-01 (7th Cir. 2001)).* This opinion likewise turns
directly to whether Jessup has met his burden of creating a
reasonable inference that Amtrak’s stated reasons for refusing to

reinstate him were a pretext for intentional discrimination.

To establish pretext, Jessup must ultimately show by a
preponderance of the evidence either (1) that Amtrak was more
likely motivated by a discriminatory reason than by its proffered
reasons or (2) that its proffered reasons are unworthy of
credence (McCoy, 957 F.2d at 372).’ But Jessup offers no facts
that could undermine Amtrak’s articulated reasons for refusing to
reinstate him, so as potentially to convince a reasonable jury

that Amtrak’s explanation is a pretext for discrimination.

Amtrak gives essentially two reasons for failing to
reinstate Jessup. First, it contends that unlike Jackson he
never specifically requested leniency reinstatement, which Amtrak

argues is more than a “simple request for reemployment” (A. Mem.

* only a week ago our Court of Appeals explored the limited
circumstances under which an employee could invoke a similar
shortcut of the McDonnell Douglas approach (Brummett v. Lee
Enters., Inc., No. 01-2535, 2002 WL 449698, at *2 (7% Cir.

Mar. 25)). But what is said in the text remains an accurate
statement of the procedure in aid of an employer's Rule 56
motion.

7 At this summary judgment stage, of course, Jessup need
not “establish” or “prove” or “show” anything. Instead he must
merely demonstrate the existence of a genuine issue of material
fact to defeat Amtrak’s summary judgment motion. Although this
opinion will nonetheless most frequently employ one of those
quoted terms because that is the terminology used by the cited
cases, this Court has consistently imposed that lesser burden on
Jessup in testing his claims.


labor relations field office (id. 4917, 25; J. St. §100). After
that appeal was denied, TCU initiated a third-level appeal to
Amtrak's Director of Labor Relations responsible for TCU’s labor
contract, LaVerne Miller (“Miller”) (A. St. 4917, 78). That
appeal was also denied (id. 478). But in November 1999 Miller
decided to reinstate Jackson on a leniency basis, which requires
that an employee admit guilt to the charges involved and that the
employee or his or her union request reinstatement without back
pay (id. §g0-81). Though Amtrak maintains that TCU asked Miller
to consider leniency reinstatement (id. 479), Jessup insists that
it was Amtrak that offered to reinstate Jackson (J. Resp. 479, d.
St. §103*).

Meanwhile Amtrak also filed charges against Jessup, and a
disciplinary hearing was held on October 13, 1998 before hearing
officer Demotses (A. St. 9955-56). In addition to violation of
the Trust and Honesty provision, Jessup was also charged with
violating the Conduct provision prohibiting employees from

engaging in dishonest behavior (J. Dep. Ex. 15). Demotses also

* Those Jessup submissions really do not identify evidence
to support his insistence. Indeed, while Amtrak-TCU correspon-
dence reflects that a conference was held where TCU and Amtrak
agreed to leniency reinstatement, none of the correspondence in
the record reveals which party made the initial proposal (J. Ex.
19, A. Resp. §103). In support of Amtrak's position, however,
Miller testified that TCU representative Dan Biggs requested
Jackson’s leniency reinstatement in a telephone conversation with
another Amtrak manager (A. Ex. 2 at 25-26). All the same, to
avoid any question this opinion will arguendo credit Jessup's
position (it turns out to make no difference in the result here).

6


investigated and ultimately terminated for her involvement in
that scheme (though she was later reinstated with a loss of back
pay).

Third, Jessup mailed service vouchers to his friend Richard
Brooks (“Brooks”) (A. St. 439). When Brooks attempted to use the
two $25 vouchers to purchase a ticket at the Amtrak station in
Niles, Michigan, the ticket agent called the police (id.). That
led to a police report, a copy of which was later sent to the IG
Office (A. St. 941, A. Ex. A at Hearing Ex. F). When the IG
office then interviewed Brooks, he acknowledged that he was not
an inconvenienced passenger and that Jessup had mailed him the

vouchers (A. St. 9943-44).

Based on Jackson’s use of the vouchers she received from
Jessup, Amtrak charged her with violating the Trust and Honesty
provision of Amtrak’s Standards of Excellence (id. 948). on
August 5, 1998 a disciplinary hearing was held before hearing
officer Carl Demotses (“Demotses”) (id. 949). At the hearing
Jessup testified that although he could not recall how many, he
had given Jackson service vouchers to use for a friend (id. 951,
A. Ex. C 50, 53, 58). Demotses ruled that the charge against
Jackson had been proved, and she was discharged on August 13 (A.

St. 9976-77).

Jackson’s union, Transportation Communications Union

(*Tcu”), then filed an internal second-level appeal to Amtrak’s

5


genuine issue of material (that is outcome-determinative) fact,
and Amtrak is thus entitled to a judgment as a matter of law.
Its summary judgment motion is granted in its entirety, and this

action is dismissed with prejudice.

Milton I. Shadur

Senior United States District Judge
Date: April 2, 2002

18


Sex Discrimination Claim

Sex discrimination can be established in one of two ways:
with direct or circumstantial evidence that the adverse
employment actions would not have been taken but for plaintiff's
sex (the so-called direct method), or with the burden-shifting
and inference-creating method outlined in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-05 (1973) (Mojica_ v. Gannett Co.,
Inc., 7 F.3d 552, 561 (7th Cir. 1993) (en banc)). Here Jessup

attempts the burden-shifting approach.

There is no need to rehearse the oft-repeated steps entailed
in that process. Indeed, there is no need to dance that
quadrille here--as this Court (like others) has noted more than

once (e.g., Moore v. NutraSweet Co., 836 F. Supp. 1387, 1395

(N.D. Ill. 1993) (internal quotation marks omitted)):

[T]he plaintiff’s prima facie showing in these cases
frequently cannot be analyzed wholly discretely from the
plaintiff£’s showing of pretext, so that it is preferable to
collapse the inquiry and focus on the showing of pretext, a
position that our Court of Appeals also has taken on
occasion (see, e.g., its decision affirming this Court in
McCoy [v. WGN Cont’1 Broad. Co., 957 F.2d [368,] 372 [(7th
Cir. 1992)]).

And our Court of Appeals has continued to follow that approach
where appropriate, jumping ahead to the ultimate discrimination
question rather than focusing on the prima facie case even when
it is questionable whether plaintiff has met the latter

requirement (see, ¢.g., Olsen v. Marshall & Ilsley Corp., 267



en

Min ‘Form (06/97)
og United States District Court, Northern District of Illinois

Name of Assigned Judge i : Sitting Judge if Other
or Magistrate Judge Milton I. Shadur than Assigned Judge
CASE NUMBER 00 C 8065 DATE 4/2/2002
CASE Melvin Jessup vs. National Railroad Passenger Corp.
TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state bricfly the nature
MOTION: of the motion being presented}
DOCKET ENTRY:
(1) Q Filed motion of [ use listing in “Motion” box above.]
(2) Qo Brief in support of motion due
(3) im) Answer brief to motion due. . Reply to answer brief due,
(4) a) Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) oO Trial[set for/re-set for] on at
(8) a [{Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) © General Rule2!1 OFRCP41(a)(1) OO FRCP41(a)(2).
(10) «i [Other docket entry] | Enter Memorandum Opinion and Order. Defendant’s motion for summary
judgment is granted in its entirety, and this action is dismissed with prejudice.
(i) [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
i ired. Number
No notices required. number of notices
Notices mailed by judge’s staff,
Notified counsel by telephone.
VY | Docketing to mail notices. “oO
Y | Mail AO 450 form.
Copy to judge/magistrate judge.
courtroom Eqs) vd 2 uy 29 date mtd notice
SN deputy’s
initials oer
[ * 4-4" \Date/time received in
central Clerk’s Office nailing deputy inials



dismissal should be considered (J. Ex. 21):

If the nature of the inquiry is whether some discipline
short of dismissal, such as lengthy suspension,
resignation, payback, or schooling should be considered
as the discipline, that inquiry would be a request for
leniency, which should be made to the Chief Operating
Officer of Amtrak Intercity.

Although as indicated earlier the parties disagree about
whether Jackson’s union requested reinstatement based on leniency
(as Amtrak posits) or whether Amtrak itself proposed her
reinstatement (as Jessup states, albeit without appropriate
supporting evidence--see n. 4), that dispute is not material and
does not preclude granting summary judgment. Even if Amtrak had
approached Jackson regarding leniency (crediting Jessup’s
version, as n. 4 says), this Court cannot sit as a super
personnel manager and re-examine Amtrak’s legitimate business
decision to seek to reinstate one but not the other (Brasic v.
Heinemann’s Inc., 121 F.3d 281, 287 (7th Cir. 1997)). On the
contrary, although Jessup has demonstrated some likeness to
Jackson in that they both misused service vouchers, Jessup
differs from Jackson in several material ways that are damaging

to Jessup.

First, Jessup was appropriately charged with violating both

the Conduct and the Trust and Honesty provisions of Amtrak’s
Standards of Excellence and General Code of Operating Rules,
while Jackson was charged only with the Trust and Honesty
violation (J. Dep. Ex. 15, A. St. 448). Although Jessup contends

otherwise (J. Mem. 12), Jackson was not charged with lying to the

11


7, A. R. Mem. 9). Second, it maintains that refusing to grant
Jessup’s requests for reinstatement throughout the internal
appeals process was justified by sufficient evidence of

misconduct (A. R. Mem. 9).

On the first issue, Amtrak asserts that it did not reinstate
Jessup on a leniency basis because neither he nor his union so
requested and because Jessup has never admitted guilt, a
prerequisite to a grant of leniency (A. Mem. 7, A. St. 480).
Jessup has presented no evidence to show either that he has
admitted guilt or that he in fact requested a leniency
reinstatement. Instead he argues that he should not have had to
use the “majic words” [sic] of “reinstatement based upon

leniency” for Amtrak to consider that option (J. Mem. 19).

Jessup attempts to point to the affidavit of UTU Vice
General Chairman Roger Lenfest (“Lenfest”) as supporting Jessup's
contention that “on several occasions Amtrak has reinstated
employees without a specific request for leniency” (id.). Not

so--Lenfest’s affidavit simply says:

On prior occasions, Amtrak has reinstated employees on
a leniency basis.

Lenfest’s affidavit includes nothing about whether reinstatements
were made in the absence of employee or union requests, as Jessup
improperly suggests. Moreover, a February 2000 letter from
Hriczak to Jessup had instructed him precisely how to make a

request for leniency if he felt some discipline short of

10


ruled that the charges against Jessup had been proved, and Jessup

was discharged on October 22 (A. St. 9965, 68; J. St. 993).

As Jackson's union had done on her behalf, UTU filed a
second-level appeal on Jessup's behalf with the Manager of Labor
Relations. That appeal was denied on November 24, 1998 (A. St.
4417, 70), as was UTU’s third-level appeal to the Director of
Labor Relations responsible for the UTU conductors’ labor
contract, Larry Hriczak (“Hriczak”) (id. 971). Unlike Jackson's
union, UTU next appealed Jessup’s termination to the Public Law
Board, a three-member arbitration panel, which decided on July

31, 2000 to uphold the termination (id. 74-75).

On July 21, 2000 Jessup filed a Charge of Discrimination
with the Illinois Department of Human Rights and the Equal
Employment Opportunity Commission, targeting Amtrak with asserted
age-based and sex-based discrimination (Complaint 2). After he
received a right-to-sue letter, he timely filed this action

(id.) .°

5 Jessup contends that both his termination and Amtrak’s
failure to reinstate him were discriminatory (J. Mem. 1). But
Jackson, the only comparator he identified, was also terminated.
Because Jessup has no direct evidence that his termination was
discriminatory and because he has not pointed to any employee
involved in misusing service vouchers who was not terminated, his
throwaway discriminatory termination argument fails at the outset
(Hoffman-Dombrowski v. Arlington Int’l Racecourse, Inc., 254 F.3d
644, 650 (7th Cir. 2001)). This opinion therefore subjects only
Jessup’s failure-to-reinstate claim to analysis.

7


Background

Jessup began working for Amtrak in 1987 as an assistant
conductor, and he worked for the company as both an assistant
conductor and a conductor until his termination on October 22,
1998 (A. St. ¢§5-6). Throughout his employment with Amtrak
Jessup was a member of the United Transportation Union (“UTU”)
(id. 99). One of his responsibilities was distributing service
vouchers known as Arrow vouchers (J. St. 9988-90). Those were
given to passengers who were inconvenienced by poor service, and
each could be credited against the purchase of a ticket for the
amount stated on the voucher (A. St. 9912, 13). Arrow vouchers
were not issued in the name of any particular passenger (id.

qs).

In May 1998 Amtrak’s Inspector General’s Office (“IG
Office”) began an investigation of whether Jessup had provided
Arrow vouchers to unauthorized persons (id. 4919-20). Three

instances of alleged misuse were discovered.

under-oath reiteration of the earlier testimony. Second,
Amtrak's response to Jessup's motion asserts that the transcripts
are offered not to show the truth of the underlying testimony but
to show what motivated Amtrak’s employment decisions, so that
they are admissible non-hearsay (Fed. R. Evid. 801(c)). Even
were that not so as to some portions of the testimony (a question
that need not be answered under the circumstances), Jessup's
motion to strike is dead in the water for the reason stated
earlier in this footnote in any event. Third (a partial reason),
several of the paragraphs to which Jessup objects (A. St. 4912,
13, 21, 39) are based on Amtrak’s responses to Jessup’s Request
for Admission of Facts and are thus also non-hearsay.

3


to reinstate her (A. St. 478, J. Resp. 981). But Jessup’s third-
level appeal was denied by Hriczak, who unlike Miller also sat on
Jessup’s Public Law Board arbitration panel (A. St. 971, J. St.
96). Different supervisors making different employment
decisions concerning different employees present “distinctions
sufficient [to] account for any disparity in treatment, thereby
preventing an inference of discrimination” (Radue, 219 F.3d at

618).

Even if it were to be assumed that Jessup’s asserted
requests to the Public Law Board that he “be reinstated to [his]
employment just like Janet Jackson” (J. Ex. 9 49) and that he “be
treated no worse then Amtrak had treated Janet Jackson” (Lenfest
Aff. 413) amounted to a request for reinstatement based on
leniency,*® Amtrak would have been fully justified in refusing
the request for the reasons discussed in the preceding
paragraphs. Thus even when all favorable inferences are drawn in
Jessup’s favor, Amtrak's treatment of Jackson does not raise an

inference that sex was a factor in Jessup’s termination.

In fact, Jessup's reference to the Public Law Board raises
what might fairly be viewed as an independent basis for rejecting
his claim. After all, when it came to the issue of his possible

reinstatement, it was the Board that was really the ultimate

»© Such an assumption would be at odds with the evidence,
for Jessup’s own brief to the Public Law Board requests that
Jessup be treated better than Jackson by receiving back pay (J.
Ex, 10 at 1). That of course is contrary to the undisputed
requirements for leniency reinstatement.

14


judgment motion must be and is granted as to Jessup’s Title VII

claim.

Age Discrimination Claim

Jessup’s age discrimination claim fails for the same reason
as his Title VII claim: Nothing even hints that Amtrak’s stated
reasons for failing to reinstate him were pretextual. While that
alone suffices to defeat his ADEA claim, Jessup also
unquestionably fails to make out a prima facie case of age
discrimination. Such a prima facie case requires a showing that
(1) he was a member of the protected class (age 40 or over), (2)
he was performing his job satisfactorily, (3) he was subjected to
a materially adverse employment action and (4) substantially
younger and similarly situated employees were treated more
favorably (Bennington v. Caterpillar Inc., 275 F.3d 654 (7th Cir.

2001); 29 U.S.C. § 631(a)).

What has been said as to Jessup's Title VII claim is fatal
as to the second of those four factors. But over and above that
dispositive element, Jessup fails on the fourth factor as well.
In that regard an inference of discrimination is proper only when

a substantially younger person is favored over plaintiff (Scott

v. Parkview Mem’1l Hosp., 175 F.3d 523, 525 (7th Cir. 1999)).
While a ten-year age difference between plaintiff and the favored

employee is presumptively substantial, a seven-year difference

16


Summary Judgment Standards

Familiar Rule 56 principles impose on Amtrak the burden of
establishing the lack of a genuine issue of material fact

(Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For

that purpose this Court must "read[ ] the record in the light
most favorable to the non-moving party," although it "is not
required to draw unreasonable inferences from the evidence" (St.

Louis N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262, 265

n.2 (7th Cir. 1997)). As Pipitone v. United States, 180 F.3d

859, 861 (7th Cir. 1999) has quoted from Roger v. Yellow Freight

Sys., Inc., 21 F.3d 146, 149 (7th Cir, 1994):

A genuine issue for trial exists only when a reasonable
jury could find for the party opposing the motion based
on the record as a whole.

As with any summary judgment motion, this Court accepts nonmovant
Jessup's version of any disputed facts, but only so long as it is

supported by record evidence. What follows in the Facts section

is culled from the parties' submissions in that manner.’

2 Jessup has filed a separate motion to strike certain
portions of Amtrak’s LR 56.1 statement, arguing that the
disciplinary hearing transcripts on which Amtrak relies are
inadmissible hearsay because the testimony was not taken under
oath. That motion is rejected for more than one reason. Most
importantly, each witness relied on by Amtrak provided an
affidavit (Kelly Aff., Krueger Aff., Rush Aff.) stating that the
transcript accurately reflects his testimony and that his
testimony was true, thus removing any hearsay objection under
Rule 56(e). Although Jessup's counsel has argued otherwise in
her just-filed Reply Brief on the subject, she is flat-out
wrong--each witness! affidavit is the equivalent of a current

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MELVIN JESSUP,
Plaintiff,
No. 00 C 8065

Vv.

NATIONAL RAILROAD PASSENGER
CORPORATION,

DOCKETED
APR - 3 2002

Defendant.
MEMORANDUM OPINION AND ORDER

Melvin Jessup (“Jessup”) has charged his former employer
National Railroad Passenger Corporation (“Amtrak”) with
employment discrimination actionable under Title VII (42 U.S.C.
§§2000e to 2000e-17) and the Age Discrimination in Employment Act
(“ADEA,” 29 U.S.C. §§621-634). Amtrak has filed a Fed. R. Civ.
P, (“Rule”) 56 motion for summary judgment, and both sides have
complied with this District Court’s LR 56.1.! For the reasons
contained in this memorandum opinion and order, Amtrak’s motion

is granted in its entirety and this action is dismissed.

+ LR 56.1 is designed to facilitate the resolution of Rule
56 motions by calling for evidentiary statements and responses to
such statements (in each instance with record citations), thus
highlighting the existence or nonexistence of factual disputes.
This opinion cites to Amtrak’s LR 56.1(a) (3) statement as “A. St.
{ -” and to Jessup’s LR 56.1(b) (3) (B) statement of additional
facts as “J. St. Q -.” Jessup’s Response to Amtrak’s LR
56.1(a) (3) statement is cited as “J. Resp. § -,” although where
an A. St. assertion is not controverted a citation to the latter
ordinarily suffices. “A. Rep.” designates Amtrak’s Reply
statement. This opinion employs the same “A.” and “J.”
abbreviations in referring to the parties’ exhibits and
memoranda.


IG Office when questioned about the vouchers.*® Next, Jessup was
involved in three separate incidents of misconduct involving $950
worth of vouchers and still denies wrongdoing, while Jackson
admitted her actions--and they were limited to a single incident
involving $150 worth of vouchers provided by Jessup himself (J.
Mem. 13-15, A. Ex. D pages 2-3). Moreover, Jackson had more than
twice as many years of service at Amtrak as Jessup did--23 years

as compared with 11 (A. St. 495, 24).

Plainly Amtrak had legitimate reasons to consider leniency
for Jackson but not for Jessup (and to offer that possibility to
Jackson, if that is indeed what happened) (Kaniff v. Allstate
Ins. Co., 121 F.3d 258, 265 (7th Cir. 1997)). All that is
required on that score is that Amtrak honestly believed it was
appropriate to put Jackson but not Jessup back to work (Flores v.
Preferred Technical Group, 182 F.3d 512, 516 (7th Cir. 1999)).
Abundant testimony from Jessup’s disciplinary hearing supports
Amtrak's assertion that Jessup’s termination was upheld based on
its honestly held belief that Jessup misused service vouchers and

lied about it to IG investigators.® Moreover, Jessup admitted

® In addition to being formally charged with dishonest
conduct, Jessup’s Notice of Formal Investigation specifies
“[(flurthermore, it is alleged that you were dishonest with
Amtrak’s Inspector Generals [sic] Office when questioned about
your involvement in the above mentioned service vouchers” (J.
Dep. Ex. 15 at 2). Jackson’s Notice makes no mention whatever of
dishonest statements to IG investigators (A. Ex. C at Hearing Ex.
A).

° By way of example, Agent Krueger testified that (1)
Kristin Jessup submitted 15 service vouchers worth $750 to an

12


decisionmaker, not Amtrak alone. When the Board refused to award
reinstatement even though it was apprised that Jackson had been
granted that relief, it did engage in admittedly discriminatory
(that is, different) treatment--but there is no suggestion by
Jessup that the difference was in any way sex-based or age-based.
Instead Jessup acknowledged in his deposition (Tr. 108-12) that
the Board's neutral members and Chairman had not discriminated
against him. But because this opinion demonstrates more than
ample reasons for Amtrak's victory without this line of analysis,
this paragraph has been inserted only as a sort of supplement to

the other grounds for decision.

Amtrak's second articulated reason, that the evidence
substantiated the charges against Jessup and justified denying
his internal appeals, has been sufficiently addressed by the
above analysis. Jessup has plainly failed to create a material
issue of fact as to whether his appeals were actually denied
because of his sex. Significantly in that respect, Jackson’s
appeals were denied as well (J. St. §100). Jessup cannot
plausibly claim discrimination based on the denial of his
internal appeals when those of his sole comparator were also

denied.

In sum, Jessup has presented no evidence that a reasonable
jury could view as tending to show that Amtrak’s stated reasons
for refusing to reinstate him were a “sham”--that is, no evidence
that Amtrak did not honestly believe Jessup had misused service

vouchers and lied about it. Accordingly Amtrak’s summary

15