preponderance of the evidence, that the reasons proffered by the employer are actually a pretext for
discrimination. McDonnell Douglas, 411 U.S. at 804; Adreani v. First Colonial Bankshares Corp.,
154 F.3d 389, 394 (7th Cir. 1998) (Adreani).

To establish a prima facie case of race discrimination, a plaintiff must establish: (1) that he
was a member of a protected class, (2) that he was performing his job satisfactorily, (3) that he
experienced an adverse employment action, and (4) that similarly situated individuals were treated
more favorably. See Hoffman-Dombrowski v. Arlington Int'l Racecourse, Inc., 254 F.3d 644, 650
(7th Cir. 2001). Furthermore, in cases alleging reverse discrimination, a plaintiff must show
“background circumstances” that demonstrate that a particular employer has “reason or inclination
to discriminate invidiously against whites” or evidence that “there is something ‘fishy’ about the
facts at hand.” Phelan v. City of Chicago, 347 F.3d 679, 684 (7th Cir. 2003).

As discussed above, Scanlon was not meeting Defendant’s legitimate expectations; and he
has failed to demonstrate that the reason for his termination was a pretext to discrimination.
Accordingly, Scanlon’s racial discrimination claim also fails.

CONCLUSION

For the reasons stated above, the CTA’s Motion for Summary Judgment is granted.

Dated: (_ y+ he fae G 2005 LE
JOHN W. DARRAH
ited States District Judge

2Assuming Scanlon’s age discrimination claim was not barred for failing to include the
claim in his EEOC complaint, this claim would also fail on these same grounds.

20


November 23, 2001. Plaintiff argues that his hostile work environment claim is timely because his
suspension in April and May 2002 were part of the racially charged hostile work environment and
such occurred within 300 days of his filing his charge of discrimination. Scanlon’s suspension and
termination were the only alleged acts that occurred within the 300-day time period. However, while
Scanlon alleges that he was suspended and terminated because of his race, his suspension and
termination were not acts creating a hostile work environment. See Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993) (a hostile work environment exists where a workplace is permeated with
discriminatory, intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the employee’s employment and create an abusive working environment).
Accordingly, Scanlon’s hostile work environment claim is untimely.

Even if Scanlon’s hostile environment claim was timely, the claim would fail. To establish
a hostile work environment claim under Title VI, a plaintiff must prove: (1) the workplace was
permeated with discriminatory intimidation, ridicule, or insult that was sufficiently severe or
pervasive to alter the conditions of the plaintiff's employment and create an abusive working
environment; (2) the harassment was based on plaintiff's race; (3) the plaintiff perceived the work
environment to be hostile or abusive; (4) a reasonable person would have perceived the work
environment to be hostile or abusive; and (5) the employer knew or reasonably should have known
that the plaintiff was being subjected to such treatment, and it did not take appropriate corrective
action. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (7th Cir.1999).

For harassment to be actionable under Title VII, the employer’s actions must be sufficiently
severe or pervasive so as to “alter the conditions of [the plaintiff's] employment and create an

abusive working environment.” Faragher v. City of Boca Raton, 477 U.S. 57, 67 (1986). Title VII

14


bullet right almost in the head. I blocked though. And something
like that is going to happen this time. So help me God. Help me out.
I don’t know if I can do this alone. Help me out. Call me. Get a
conference going with Takagi, Brown, all right. Please do something.
The clock’s ticking. I know I’m going to be fired. I know ] am going
to be killed or something. When they violate your rights they’ll stop
at (tape ends).

Hello, it’s Ed Scanlon. Look, I put my heart and soul into this job
and got nothing but my teeth kicked in. Now somebody got to stand
up for what’s right and what’s wrong. I don’t think I can do this on
my own. If this would have been taken care of two years ago, you
wouldn’t have a mad man up at Fullerton. I’m telling you, Heard was
told to put me down by Takagi because I stand up for my rights. I’m
considered a trouble maker. Now this ain’t right. Something’s got to
be done. Please call me as soon as you get in today. Or else, tell me,
please tell me, who I can talk to. (end of audible tape).

(Plaint.’s 56.1(b)(3) Statement {J 28-30).

On May 1, 2002, Platt held a disciplinary hearing with Scanlon, who was accompanied by
two union representatives. At the hearing, Platt read the discharge recommendation to Scanlon and
the union representatives; neither Scanlon nor the union representatives denied the contents of the
voice mail messages. Platt presented Scanlon with a notice of discharge, which contained a list of
the CTA rules that Scanlon was charged with violating as a result of the contents of his voice mail
messages left for Curtis. (Def.’s 56.1(a)(3) Statement 32). Platt also gave Scanlon and the union
representatives an opportunity to speak on Scanlon’s behalf; neither Scanlon nor the union
representatives presented any reason to persuade Platt to change his decision to discharge Scanlon.
(Id., 133). Scanlon was discharged from his employment with the CTA on May 1, 2002. (Id., 134).

On September 20, 2002, Scanlon filed a charge with the Equal Employment Opportunity
Commission and the Illinois Department of Human Rights. The EEOC charge has an “X” in the box

indicating that race is a basis for the charge but does not have an “X” in the box indicating that age


than similarly situated employees who did not engage in statutorily protected activity. Failure to
satisfy any element of the prima facie case is fatal to a plaintiff's claim. See Hilt-Dyson, 282 F.3d
at 465. If the plaintiff establishes a prima facie case, the employer must offer a legitimate,
noninvidious reason for the adverse employment action. Once the employer does this, the burden
shifts back to the plaintiff to demonstrate that the employer’s proffered reason for termination is a
pretext to retaliation. See Hilt-Dyson, 282 F.3d at 465.

Defendant argues that Scanlon was not meeting Defendant’s legitimate expectations at the
time of his charge because of the threatening and disparaging remarks Scanlon left on Curtis’s voice
mail. Pursuant to the CTA’s Corrective Action Guidelines, Scanlon could be, and was, discharged
for the threatening and disparaging remarks. Scanlon does not dispute that he left the messages or
their content. Based on the undisputed facts, Scanlon has failed to demonstrate that he was meeting
his employer’s legitimate expectations.

Furthermore, even if Scanlon had established a prima facie case of retaliation, he has failed
to demonstrate that Defendant’s proffered reason for his termination was a pretext for discrimination.
A plaintiff can establish pretext by showing that the employer’s explanation is unworthy of credence
or that a discriminatory reason more likely motivated the employer. Debs v. Northeastern Illinois
Univ., 153 F.3d 390, 395 (7th Cir. 1998) (Debs). Pretext in this context does not mean a mistake,
rather, it means “a lie, specifically a phony reason for some action.” Russell v. Acme-Evans Co.,
51 F.3d 64, 68 (7th Cir 1995) (Russell). An honest belief in the nondiscriminatory reason offered
by the decision-maker will be sufficient even if the reasons are foolish, trivial, or even baseless.

Debs, 153 F.3d at 396.

18


with Jefferey since the September 2001 incident. Scanlon informed Brown that Jefferey had boarded
Scanlon’s train and “looked at him.” (Id., § 115). Brown did not discipline Jefferey because part
of Jefferey’s position is to board trains. (Id., 4 116). Scanlon told Brown that he felt unsafe and that
he deserved a transfer for his safety. (Plaint’s 56.1(b)(3) Statement § 1). At one point, Brown told
Scanlon that when he “started 25 years ago, instruction supervision, everyone was white, and you
stayed out of service without pay until they felt like qualifying you for a job.” He told Scanlon that
Scanlon did not have it bad at work. (Plaint.’s 56.1(b)(3) Statement | 6). Scanlon believes that
Brown ignored his complaints because Scanlon is white. (Id., { 12).

As to Takagi, who is Asian, Scanlon testified that Takagi discriminated against him from
2000 to 2002 by failing to take action although he had knowledge of Scanlon’s complaints of
“abuse” by certain supervisors and that Takagi knew that Scanlon reported such abuse to Brown and
that Brown did nothing about the abuse. Takagi did not take any action against Brown because of
Brown’s race and ignored Scanlon’s complaint because of Scanlon’s race. (Def.’s 56.1(a)(3)
Statement ff 66- 67). Scanlon believes that Takagi would laugh when Scanlon said it was tough on
him because he is white. (Plaint.’s 56.1(b)(3) Statement { 10).

Scanlon first met with Takagi, Lee, and Brown at Takagi’s office at the CTA’s 95" Street
terminal in 2001 regarding Scanlon’s concerns. At this meeting, Scanlon requested a transfer, telling
the supervisors that he had been subjected to verbal abuse and felt under physical threat from certain
managers and supervisors. (Id., 68). Later in 2001 or early 2002, Scanlon met again with Takagi
and discussed his concerns that an African-American employee, Devon Williams, had been allowed
to skip a random drug test by Brown, an African-American manager. (Id., ff] 69-70). Scanlon again

requested a transfer. Brown told Scanlon that Scanlon wanted to be transferred to the Orange Line

10


plaintiff on or about, or beginning on or about, June 8, 2000.” (Id., 447). It further alleged that the
CTA “failed to address physical attack by a C.T.A. Rail Supervisor. (2 occasions). The supervisor
who is black was reported to a manager who is also black.” Facts supporting Scanlon’s claim of
discrimination were that “the supervisor was not disciplined according to C.T.A. policy, but was
interviewed for a promotion to management by the manager. I believe the manager rewarded and
supported the supervisor’s conduct.” Scanlon’s Complaint did not allege race discrimination or that
the CTA terminated Scanlon or failed to promote Scanlon. (Id., {{] 49-50).

On November 12, 2003, Scanlon, through counsel, filed an Amended Complaint. (Def.’s
56.1(a)(3) Statement 451). Scanlon’s Amended Complaint alleges both race and age discrimination.
(Id., | 52). In the Amended Complaint, Scanlon alleges that he was not transferred to another
position within the CTA even after many requests to do so and that he was “continually verbally
harassed” by an unnamed “rail supervisor” who allegedly “physically attacked him regarding African
American CTA employees having to endure the same treatment as he had for many years.” (Id.,
53). Scanlon alleges that he was denied promotions “due to his demand for action on the part of
CTA against the supervisor who had physically struck him and verbally harassed him from
June 8, 2000 until termination.” He also alleges that the CTA assigned younger African American
employees to positions that he had requested. (Id., 54). The Amended Complaint further alleges that
he was retaliated against because he contacted the CTA’s internal Affirmative Action Department
in June 2001 and on March 29, 2002. (Id., 57).

At Scanlon’s deposition, Scanlon testified that the CTA supervisors or managers that

discriminated against him while he worked on the CTA’s Red Line included: Takagi,


or retaliation are bases of the charge. (Def.’s 56.1(a)(3) Statement {| 36). The charge indicates the
date the discrimination took place as “03/29/02" and does not indicate that it was a “continuing
action.” (Id., 37).

The charge alleged that Scanlon began working for the CTA on or about April 24, 1995, and
that Scanlon’s most recent position was a rail operator. (Def.’s 56.1(a)(3) Statement 38). The
charge alleged that, since January 2001, Scanlon complained to management about physical threats
of harm and harassment by a supervisor, who is black, but “management refused to take any action”
to address his complaint. (Id., 39). The charge also alleged that on March 29, 2002, Scanlon
contacted the CTA’s Affirmative Action Department regarding his complaint. The charge further
alleged that Scanlon was suspended for several weeks without pay and that the CTA refused to
address Scanlon’s “concerns” and terminated Scanlon’s employment on May 1, 2002. (Id., 4 40).

Scanlon also completed and signed an EEOC Charge Questionnaire, dated
September 20, 2002, in which he circled “race” and “color” as the bases for his charge. While “age”
was offered in the questionnaire as an optional basis for a charge of discrimination, Scanlon did not
circle “age” or otherwise indicate that age discrimination formed a basis of his charge. (Id., 142).
Scanlon also circled discharge and harassment as the issues that formed the basis of his charge on
the questionnaire. Scanlon initially circled the issue “transfer,” but the circle was scribbled out.
While “failure to promote” was offered in the questionnaire as an optional issue that could give rise
to a charge of discrimination, Scanlon did not circle failure to promote or otherwise indicate that
failure to promote was an issue upon which Scanlon’s charge was based. (Id., 7 43).

On June 24, 2003, Scanlon filed a pro se Complaint, alleging race discrimination. (Def.’s

56.1(a)(3) Statement § 45). Scanlon’s Complaint alleged that the CTA “discriminated against the


Scanlon concedes the content of the voice mail messages and that he left the messages on
another employee’s voice mail system. Scanlon argues that the Defendant misconstrued the
messages. Even if Defendant had misconstrued the messages, such a mistake does not constitute
pretext to discrimination. See Russell, 51 F.3d at 68.

Scanlon’s failure to meet Defendant’s legitimate expectations and his failure to demonstrate
that Defendant’s reason for terminating Scanlon’s employment were a pretext to discrimination also
defeat his claim of racial discrimination. Similar to his retaliation claim, Scanlon can prove
discrimination through either direct or circumstantial evidence or the indirect burden-shifting method
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Jackson v. E.J. Brach
Corp., 176 F.3d 971, 982 (7th Cir. 1999) (Jackson). Direct evidence is defined as “evidence ‘which
if believed by the trier of fact, will prove the particular fact in question without reliance on inference
or presumption.”” Plair v. E.J. Brach & Sons, 105 F.3d 343, 347 (7th Cir. 1997) (citation omitted).
In an employment discrimination case, direct evidence must speak directly to the issue of
discriminatory intent; and it must relate to the specific employment decision in question. Cowen v.
Glenbrook Security Serv., Inc., 123 F.3d 438, 443 (7th Cir. 1997). Scanlon has not presented any
direct evidence of discrimination; thus, the focus is on the McDonnell Douglas burden-shifting
method.

Under the McDonnell Douglas burden-shifting test, the plaintiff must first establish a prima
facie case by the preponderance of the evidence. Jackson, 176 F.3d at 982. If the plaintiff
establishes a prima facie case, a rebuttable presumption is created; and the employer must come
forward with evidence of a legitimate, nondiscriminatory reason for its actions. If the employer

meets this requirement, the burden shifts back to the plaintiff to demonstrate, again, by a

19


Scanlon further testified of another incident in September 2001 at the CTA’s Roosevelt
station on the CTA’s Red Line. At that time, Jefferey approached Scanlon “excitedly” and “in a
threatening manner” and stated, “What kind ofrun is this?” Scanlon “jerked back” and told Jefferey
his run number, and Jefferey repeated the run number several times “screaming and yelling” at
Scanlon. (Id., ff 63, 103). Scanlon filed a report about the incident, but Brown and Takagi initially
denied having received the report. After Scanlon sent a facsimile copy to Brown, Brown and
Scanlon met regarding the incident. At the meeting, Brown told Scanlon that Brown would not
address his concerns but later stated that he would talk to Jefferey. Brown further told Scanlon that
Scanlon did not like black supervisors and that Scanlon “didn’t have it as bad as he did years ago
when he had to stay out of service when instruction and management were predominately white.”
(Id., 4 64). Brown denied making the comments. (Id., 78). Brown instructed Jefferey to avoid
Scanlon “at all costs,” not to board Scanlon’s trains, and not to have any conversations with Scanlon.
Brown received no other complaints from Scanlon about Jefferey. (Id., J] 106).

Scanlon had a third encounter with Jefferey while Scanlon was driving a CTA train between
the North/Clybourn and Clark/ Division subway stations. This time, Jefferey was down on the track
and signaled that he wanted to be picked up. Scanlon stopped the train, opened the door, and let
Jefferey into the train. Jefferey came into the motor cab and stated that he was surprised Scanlon
picked him up. Scanlon responded that “I'll do anything for you as long as you don’t have some
kind of tantrum and start screaming at me.” (Def.’s 56.1(a)(3) Statement {J 109-112). Jefferey
responded by smiling and rocking back and forth. (Id., 112). Scanlon believes this incident was
related to his race because of Jefferey’s demeanor, including the fact that Jefferey had a “smirk”

during the incident. (Id., J 113). Some time later, Brown asked Scanlon if he had been in contact


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EDWARD SCANLON,

Plaintiff,

v. No. 03 C 4383

CHICAGO TRANSIT AUTHORITY, Judge John W. Darrah

Defendant.

weve vw

MEMORANDUM OPINION AND ORDER

Plaintiff, Edward Scanlon, filed suit against Defendant, the Chicago Transit Authority,
alleging race and age discrimination. Currently before the Court is the CTA’s Motion for Summary
Judgment.

BACKGROUND

Scanlon was hired by the CTA as a combined rail operator on April 24, 1995. (Def.’s
56.1(a)(3) Statement § 5). Combined rail operators at the CTA are responsible for motoring CTA
rail trains. (Id., 416). As a combined rail operator, Scanlon was a member of Amalgamated Transit
Union, Local 308, throughout his employment with the CTA. (Id.,417). Scanlon was aware that the
CTA and Local 308 have a grievance procedure that is outlined in the collective bargaining
agreement between the CTA and Local 308. (Id., ¥ 8).

The CTA’s General Rule Book Governing All Employees prohibits certain types of personal
conduct. The conduct prohibited by the Rule Book includes conduct unbecoming an employee; use
of obscene or abusive language in public; and disrespect to supervisory personnel, co-workers or the
public. (Def.’s 56.1(a)(3) Statement 9). The Rule Book also requires CTA employees to use their

“best judgment” when selecting a course of action in a situation not covered by the Rule Book. (Id.,


American Manager discriminated against Scanlon when Coley arranged for a white manager, Reilly,
to suspend Scanlon in April 2002. Scanlon’s belief stems from Reilly’s alleged comment that Coley
was making Reilly suspend Scanlon. (Id., {J 127-129).

Scanlon was also discriminated against by a co-worker, Williams, when Williams threatened
him, called him a “white motherfucker” and a “cracker” and stated “I’II kill your white ass.” (Def.’s
56.1(a)(3) Statement § 130). Williams walked a block-and-a-half to make the threats. (Plaint.’s
56.1(b)(3) Statement J 2). After this incident, Brown interviewed Scanlon and Williams. (Def.’s
56.1(a)(3) Statement 4] 131). During the interview, Scanlon stated that he would continue to pursue
a complaint he had filed with the CTA management regarding Williams’ conduct unless Williams
apologized. Williams apologized, and Scanlon and Williams may have shook hands. (Id., {| 132).
After a meeting between Scanlon, Williams, and the CTA management, Scanlon ripped up a report
he had given to the CTA management regarding this incident. (Id., ] 133). No disciplinary action
was taken against Williams or Scanlon. (Plaint’s 56.1(b)(3) Statement 3).

Scanlon believes that he was retaliated against and every charge against him was “taken to
the nth degree” and every charge he made against someone was ignored. (Def.’s 56.1(a)(3)
Statement 138). Brown also asked Scanlon why he had gone to the CTA’s Affirmative Action
Department. (Id.,f 140). Furthermore, Scanlon believes that he was suspended in April 2002, in
retaliation for his complaint that he made to the CTA’s Affirmative Action Department about an
incident between Jefferey and a female CTA worker on or about March 14, 2002. Five days after

making the report, Scanlon was taken out of service. (Id., ff] 143-144).


in order “to go out by all those white managers on the Orange Line.” Scanlon denied that his reason
for requesting a transfer had anything to do with the race of the managers on the Orange Line. (Id.,
471). Brown denied making the comments. (Id., 78).

As to Heard, an African-American Manager, Scanlon testified that Heard kept Scanlon out
of service and referred Scanlon to meet with Takagi as a result of Scanlon’s absenteeism because of
Scanlon’s race. (Def.’s 56.1(a)(3) Statement J). Scanlon also believes that he was disciplined about
of his absenteeism by Smith in June 2001 because Scanlon had told Smith that Jefferey was never
charged with any discipline as a result of the reports Scanlon had filed. At this June 2001 meeting,
Smith made reference to Scanlon’s neighborhood and stated “blame it on Daley” regarding Scanlon’s
discipline. (Id., {{| 81-83).

Mooney, a Caucasian Vice President of the CTA, discriminated against Scanlon because
Mooney ignored Scanlon’s “cries for help” when Scanlon complained that he was discriminated
against because of his race. (Def.’s 561 .1 (a)(3) Statement jf] 118-119). Furthermore, Mooney
discharged Scanlon for lesser conduct than that taken by Jefferey, Jackie Hubbard, and Joe Dibias.
(Id., 4] 120).

Kidd, an African-American Manager, discriminated against Scanlon because Kidd failed to
charge Jefferey with misconduct. (Def.’s 56.1(a)(3) Statement { 123), Edwards, another African-
American Manager, discriminated against Scanlon when Edwards sent Scanlon for a special medical
exam on November 1, 2000, and because Edwards ignored Scanlon’s belief that he was under the
threat of physical violence because of his race. (Id., J] 124-125). During a conversation with
Edwards, Edwards told Scanlon that “he didn’t want to get into the race thing” when Scanlon

complained that he felt he was subjected to race discrimination. (Id., | 142). Coley, an African-

11


Charles Brown, Ron Heard, Marion Jefferey, William Mooney, Chester Kidd, Carol Davis, Freddie
Edwards, Sabrina Anthony, Charles Lindenmuth, Fred Schein, and Ulysses Coley. (Def.’s 56.1 (a)(3)
Statement 59).

Asto Jefferey, on June 8, 2000, Jefferey “exploded” at Scanlon, swinging his arms and stated
“is that you again” on the Platform at the CTA’s 95" Street train terminal at a supervisor’s booth
when Scanlon repeated a question to Jefferey. Prior to this incident, Jefferey was observed being
“friendly” with African-American co-workers. (Def.’s 56. 1(a)(3) Statement ff 61, 88). Jefferey did
not make any reference to Scanlon’s race during the incident. (Id.,4.91). However, Scanlon believes
Jefferey’s actions occurred because of Scanlon’s race because Jefferey “had rage, a look of hatred
that he didn’t have with the employees he was just talking to, and he had it when he was saying to
me.” (Id., 992). Brown did not issue a written warning or written reprimand to Jefferey. (Plaint.’s
56.1(b)(3) Statement § 14).

Scanlon reported the incident to the CTA Managers Kidd and Brown. Takagi and Brown
testified that Scanlon had reported to them that Jefferey had “yelled” at Scanlon. Scanlon, Kidd,
Brown, and Jefferey met after the incident for thirty minutes. During the meeting, Jefferey denied
that he had yelled at Scanlon but had stated that “it’s rough out there, we had to deal with it for years,
it is about time you start dealing with it.” (Def.’s 56.1(a)(3) Statement ff] 62, 95-96). During the
meeting, Brown asked Scanlon and Jefferey whether they could work together, to which both
responded they could. Scanlon and Jefferey shook hands and went back to work. (Id., 98).
Scanlon did not indicate at the meeting that anyone other than Jefferey discriminated against him.

(Id., 1 99).


employee and to disparage other co-workers and managers. Platt’s decision to discharge Scanlon
was not based on Scanlon’s race, age or any complaints that Scanlon made to the CTA’s Affirmative
Action Department. (Id., 7 31).

Scanlon’s voice mail messages left for Curtis stated:

Alenda, this is Ed Scanlon, as soon as you check your voice mail now
this morning, please call me back. .... This is getting pushed to the
side again. Like the union did it, [ mean come on. The thing is,
Jefferey I can get the evidence on, but Charlie Brown and Takagi
ignoring two physical assaults, I’m telling you they got to go. Matter
of fact, I’m getting in trouble at Midway left and right now because
Iam not treated as an equal. Listen, because I am a white man, that
doesn’t have their job, they’re going to keep hammering me. If1 was
a white man that had their job or superior they will think of me as an
equal. Next, it will be like jail, people will want to be fucking you in
the ass and they’ll be saying it’s all right. As long as you’re white,
you’re under. They’re never going to lay off. You’ve got to give me
achance. I want to be treated as an equal. I want equal job or I want
them fired. It must be like this. They can’t keep doing this.

Alenda, it’s Ed Scanlon, you don’t know how urgent this is. They are
transferring Ron Heard out here to Midway, the manager. He
overheard me talking to my Union Rep, Marilyn Perkins. I said
because of that Jefferey that’s where it all started, that’s where it’s got
to end. That these managers would let a supervisor rape a woman as
long as they keep the railroad running they don’t care. Now you guys
violated my rights, I don’t think Heard’s coming out here with a
check for the eight days he screwed me out of. I think he’s coming
out here to fire me. Listen, you got to do something, the clock is
ticking. They change the 15". You’ve got to do something. I just
fought for 22 months to get transferred away from that stuff. They’re
putting him over here to fire me. Look, now the reason with Jefferey,
he threatened me. I went about this non-violent. Somebody’s got to
help me. I’m begging for help. I’ve gone through every avenue there
is. Now I’m coming to you. I thought this is your job. It’s
management this guy is coming here to fire me. I’m in the process of
getting my money back. I don’t think he wants a bad mark on his
record, because they will not admit error. Listen, somebody’s got to
help me. I never one time in my life when my rights were violated
and I stood up and I fought for it I was shot. But I won. I took a


is not directed against unpleasantness per se but rather against discrimination in the conditions of
employment. Drake v. Minnesota Mining & Mfg. Co., 143 F.3d 878, 885 (7th Cir. 1998),
quoting Carr v. Allison Gas Turbine, 32 F.3d 1007, 1009 (7th Cir. 1994).

Scanlon relies on a few isolated incidents to support his hostile environment claim. In
June 2000, Jefferey “exploded” at Scanlon. Jefferey did not make any racial comments; but Scanlon
infers race was a motivating factor because Jefferey looked enraged when he yelled at him, and
Jefferey did not have the same look with the employees he was speaking with before Scanlon. After
reporting the incident, a meeting took place where Scanlon stated he just wanted an apology - which
he received. Over a year later, in September 2001, Jefferey again yelled at Scanlon. Again, no racial
comments were made. Some time later, Jefferey rode on a train driven by Scanlon, and Jefferey
“smirked” when he spoke to Scanlon.

Scanlon also cites to an incident with Williams in which he was sworn at and was threatened.
Scanlon does not indicate when this incident occurred. While this incident included a physical
threat, no racial comments were made; and it was an isolated incident.

Lastly, Scanlon argues that his cries for help from management that went unanswered
constituted a hostile work environment. However, the undisputed facts demonstrate that Scanlon’s
managers addressed the incidents Scanlon has identified as creating a hostile work environment and
that Scanlon did not indicate in the meetings with managers that the complained of conduct was
because of Scanlon’s race. Scanlon cannot rely on unsubstantiated conclusions that he continuously
complained about how he was treated and that his managers ignored his requests.

Scanlon has failed to demonstrate that the isolated occurrences that spanned over two-years’

time were sufficiently severe or pervasive so as to alter the conditions of his employment and create

15


In the instant case, Scanlon’s EEOC complaint alleges that he has been harassed because of
his race and that after he complained about the harassment, he was suspended for several weeks. He
also alleges that Defendant refused to address his concerns and that his employment was terminated.
Based on these allegations, Scanton’s retaliation claim could reasonably be expected to be developed
from an investigation of the allegations in the EEOC complaint. However, the EEOC complaint
contains no allegations of Scanlon’s being treated differently because of his age; and Scanlon did
not complain to Defendant about being treated differently because of his age.' Accordingly, such
allegations could not reasonably be expected to be developed from an investigation of the allegations
of the EEOC complaint; and Scanlon’s age discrimination claim fails.

Alternatively, Defendant argues that Scanlon has failed to establish a prima facie case of
retaliation.

Title VII prohibits an employer from retaliating against an employee that has complained of
unlawful practices. See 42 U.S.C. § 2000e-3(a). An employee may present either direct or indirect
evidence of retaliation. See Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002) (Hilt-
Dyson). Scanlon presents no direct evidence of retaliation; therefore, his claim is evaluated under
the indirect method.

Under the indirect methodology, a prima facie case of retaliation requires the plaintiff to
demonstrate that: (1) he engaged in a statutorily protected activity; (2) he performed his job
according to his employer’s legitimate expectations; (3) despite meeting his employer’s legitimate

job expectations, he suffered an adverse employment action; and (4) he was treated less favorably

‘Scanlon does not address his age discrimination claim in his response to Defendant’s
Motion for Summary Judgment.

17


management of William Platt, the General Manager of the CTA’s Brown, Green, and Orange Lines.
As the General Manager, Platt was responsible for the oversight of all aspects of rail operations,
including employee discipline. (Id., {J 18-19).

On April 12, 2002, Scanlon was removed from service. (Def.’s 56.1(a)(3) Statement §j 25).
That same day, Scanlon contacted the Equal Employment Office for assistance regarding his alleged
discrimination. (Plaint.’s 56.1(b)(3) Statement { 18).

On April 16, 2002, Thomas Reilly, a Caucasian CTA manager, instructed Scanlon to report
to the General Manager’s office on May 1, 2002, for further disposition and issued Scanlon a
suspension notification. (Def.’s 56.1(a)(3) Statement 26). Scanlon believes Reilly suspended him
on April 16, 2002, due to his race, because Scanlon levied the “same charges” against A frican-
American employees but his complaints were “not recognized.” (Id., 27).

On or about April 22, 2002, Platt received a memorandum from Reilly recommending
Scanlon’s discharge. Attached to the memorandum were copies of Scanlon’s interview records,
Scanlon’s work history, and transcripts of Scanlon’s phone messages left on the voice mail of
Alenda Curtis, an employee in the CTA’s Affirmative Action Union, in April 2002. (Def.’s
56.1(a)(3) Statement § 28). Platt reviewed the discharge memorandum and its accompanying
documents. The transcripts of the voice messages left by Scanlon contained “numerous disparaging
remarks about co-workers and management, contained obscenities, and references to violence and
violent conduct.” Platt also listened to the recorded voice mail messages and confirmed the accuracy
of the transcripts of Plaintiff's messages. (Id., 4 29). The main factors in Platt’s decision to
discharge Scanlon were Scanlon’s violations of the CTA rules concerning employees’ conduct and

behavior and Platt’s belief that Scanlon’s conduct and statements were intended to intimidate another


410). Scanlon signed a Rule Book receipt, acknowledging that he had received a copy of the Rule
Book on April 12, 1995. (Id., 4 11). The CTA’s Corrective Action Guidelines allow for immediate
discharge of employees who violate the CTA’s rules regarding behavior. (Id., § 12). Scanlon
received a copy of these Guidelines. (Id., q 13).

Beginning in 1995, Scanlon worked on the CTA’s Red Line. (Def.’s 56.1(a)(3) Statement
4 14). On June 6, 2001, Scanlon was issued a final written warning and corrective case interview
as a result of absenteeism in the prior twelve months. (Id., 21). On December 12, 2001, Scanlon
was issued a suspension notice and instructed to report to the General Manager’s office. (Id., 4/22).
On December 21, 2001, during his discharge hearing, General Manager Robert Takagi went through
each absence and gave Scanlon an opportunity to explain each absence. (Id.,]23). At the meeting,
neither Scanlon nor his union representative alleged that Scanlon was being disciplined because of
his race or that Ron Heard, an African American Manager, recommended Scanlon’s discharge
because of Scanlon’s race. (Id., 73). In lieu of discharge, Takagi placed Scanlon on probation,
suspended Scanlon and instructed him that more than one instance of absenteeism during his
probationary period would warrant immediate discharge. (Id., 24).

On or about February 26, 2002, Scanlon, Local 308, and the CTA signed a settlement
agreement under which Scanlon was allowed to transfer from the CTA’s Red Line to the CTA’s
Orange Line without having to formally post for the position pursuant to the Local 308 and the CTA
contract. (Id., J 15). Under the settlement agreement, Scanlon waived any and all claims related to
his transfer. (Id., J 16).

From February 2002 until his discharge on May 1, 2002, Scanlon worked on the CTA’s

Orange Line. (Def.’s 56.1(a)(3) Statement § 17). In April 2002, Scanlon worked under the


ANALYSIS

Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
material fact.” Fed R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986)
(Celotex). All of the evidence and the reasonable inferences that may be drawn from the evidence
are viewed in the light most favorable to the nonmovant. Miller v. American Family Mutual Ins.,
203 F.3d 997, 1003 (7th Cir. 2000). Summary judgment may be granted when no “reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (Anderson). However, a party cannot defeat summary judgment by relying on
unsubstantiated facts. See Greer v. Board of Educ. of the City of Chicago, 267 F.3d 723, 729 (7th
Cir. 2001) (Greer).

Defendant argues that Scanlon’s hostile work environment is time-barred.

A plaintiff must file a charge of discrimination with the EEOC or equivalent state agency
within 300 days after the “alleged unlawful practice.” 42 U.S.C. § 2000e-5(e)(1). The 300-day limit
begins to run when the defendant has taken the action that injures the plaintiff and when the plaintiff
knows she has been injured. Sharp v. United Airlines, Inc., 236 F.3d 368, 372 (7th Cir. 2001). A
timely hostile work environment claim may be based, in part, on events occurring more than 300
days before the filing of a charge if all of the acts “which constitute the claim are part of the same
unlawful practice and at least one act falls within the time period.” National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 104-05 (1980).

Scanlon filed his EEOC charge on September 20, 2002. Therefore, his hostile environment

claim is timely as long as at least one act falls within the 300-day time period - on or before

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an abusive working environment. See Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir. 2003)
(ten offensive comments, only four of which were sexual in nature, over several months were
insufficient to make work environment objectively offensive). Accordingly, even if the hostile work
environment claim was timely, it would fail.

Defendant argues that Scanlon’s age discrimination and retaliation claims fail because they
fall outside the scope of his EEOC complaint.

Title VII plaintiffs must initially bring a charge with the appropriate administrative body, i.e.,
EEOC, EEO, before pursuing a claim in federal court; and, thus, Title VII claims cannot be brought
if they were not included in the plaintiff's EEOC complaint. Babrocky v. Jewel Food Co., 773 F.2d
857, 864 (7th Cir. 1985) (Babrocky). An exception to this general rule, which allows a claim not
included in the EEOC complaint to be pursued in federal court, exists when that subsequent claim
is “reasonably related” to the claim that was included in the EEOC charge. Babrocky, 773 F.2d at
864, To be reasonably related, a factual relationship must exist between both claims; specifically,
a claim in a Title VII plaintiff's complaint and an EEOC charge are reasonably related when the
subsequent claim can be reasonably expected to be developed from an investigation of the
allegations in the EEOC charge. Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500
(7th Cir. 1994).

Courts will give Title VII pro se plaintiffs leeway in regards to the administrative specificity
requirement in EEOC complaints. The basis for this liberal construction is to give pro se plaintiffs
leeway by construing their allegations in light of the strongest arguments that they may suggest when
deciding whether the claims in the complaint are encompassed by the EEOC charge. Hudson v.

McHugh, 148 F.3d 859, 864 (7th Cir. 1998).

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