score and union position). NSR adhered to their guidelines and
Sutherland has not met her burden to show otherwise. Therefore she
has not shown that NSR’s explanation lacks any basis in fact or was
not the real reason.

Sutherland also attempts to call into question NSR’s practice
of not allowing someone to retest unless they have had additional,
formal education or course work. NSR has an objective policy of
not retesting an employee unless that employee has undergone
additional formal education since their previous testing. NSR does
not feel the cost of retesting is justified without additional
education. Sutherland points to the retesting of White as an
example. However, White, the only candidate that was allowed to
take the PCT more than once, had scored sufficiently high enough on
the first exam to make the second one superfluous (White, PCT
score - 30). This error by NSR is not sufficient to show that
NSR’s failure to promote Sutherland was pretextual, and she
presents no other evidence that male employees were systematically
allowed to retest after “failing” the PCT.

Sutherland fails to establish a prima facie case of
discrimination because she was neither qualified for the position
of Trainmaster nor similarly situated to those who were elevated to
the position while she was not. Additionally, Sutherland does not
present any facts which would demonstrate NSR’s explanation for

failing to promote her was pretextual. NSR’s explanation is

-13-


Cir. June 24, 2002). The party who bears the burden of proof on an
issue may not rest on the pleadings, but must affirmatively
demonstrate that there is a genuine issue of material fact that
requires trial. Vukadinovich v. Bd. of School Trustees of North
Newton School Corp., 278 F.3d 693, 699 (7th Cir. 2002).
Defendants’ Motion for Summary Judgment

NSR moves for summary judgment on Sutherland’s complaint
asserting that there is no genuine issue of material fact as to
whether NSR’s failure to promote Sutherland was motivated by
gender. In evaluating a plaintiff’s allegation of gender
discrimination brought under Title VII, unlawful discrimination may
be proved either through direct evidence of improper motive, or by
the burden-shifting method enunciated in McDonnell Douglas v.
Green, 411 U.S. 792, 801-803 (1973).

Direct Evidence

Sutherland asserts that a number of Trainmasters at the
Chicago Terminal made statements suggesting that Scott and
Assistant Terminal Superintendent Zimmerman (“Zimmerman”) harbored
negative attitudes toward women working on the railroads and that
this may amount to direct evidence of discriminatory intent.
Direct evidence, the holy grail of discrimination suits, is rare
indeed, as few employers will provide such fodder in the process of
wronging an employee. See Radue v. Kimberly-Clark Corp., 219 F.3d

612, 616 (7th Cir. 2000). Accordingly, statements made by


PCT (Calhoun (M), transfer; Froglia (M), transfer; Hammerstein (M),
transfer; Parent (M), demoted; Seely (M), transfer; Shear (F),
transfer; Simon (M), transfer; Stauffer (M), transfer; Steinbeck
(M), transfer; Thomas (M), transfer; Washington (M), transfer; and
Weir (M), transfer). In addition to each being in management prior
to assignment as Trainmasters, each held a higher position relative
to Sutherland, and are therefore not similarly situated. See
Hoffman-Dombrowski, 254 F.3d at 650-51.

Of the remaining ten new Trainmasters, three were hired from
outside NSR, either from college campuses or from another railroad.
All three, one of whom is female, scored well above the cut off set
for a classification as “recommended” for Trainmaster (Murphy (F),
PCT score - 47; Peters (M), PCT score - 33; and Smith (M), PCT
score - 37). None of these three can be considered similarly
situated to Sutherland because they did not occupy a union position
within NSR and they each scored significantly better than
Sutherland on the objective PCT.

There were only seven of the new Trainmasters who, like
Sutherland, occupied union positions prior to their promotions.
But unlike Sutherland, each one of them “passed” the objective PCT,
thereby scoring better than Sutherland (Damron (M), PCT score ~ 38;
Gentry (M), PCT score - 36; Martin (M), PCT score - 29; Meyer (M),
PCT score - 31; Sailers (M), PCT score - 38; Short (M), PCT score -

30; and White (M), PCT score - 32). Because each one of these


employees were promoted while she toiled as an Extra General
Yardmaster.

First, NSR contends that Sutherland fails to establish a prima
facie case because she was not qualified for the position of
Trainmaster. Unlike the evaluation process for the Yardmaster
position which uses as a threshold the SRA scores, NSR’s H.R. Dept.
uses a candidate’s objective PCT score to determine whether that
candidate will be considered for a Trainmaster position.
Candidates hired from outside NSR, or candidates seeking promotion
from a union position to a non-union, management position, as
Sutherland was, are required to have taken the PCT.

Based on the PCT score of an applicant holding a union
position within NSR, the H.R. Dept. will initially classify
candidates as “recommended,” “recommended with reservations,” or
“not recommended.” To be “recommended” for the position of
Trainmaster, a candidate must score 27 or higher on the PCT.
Scores of 26 or 25 net a candidate “recommended with reservations,”
and a candidate scoring lower than 25 will be “not recommended.”
A low score on the PCT suggests a candidate will both have problems
communicating with other managers and difficultly solving problems
a manager will face during the course of his or her daily
employment. Candidates who are classified as “not recommended” are

removed from consideration for any Trainmaster positions.


nondecision makers that are essentially speculation about the
attitude of decision makers do not amount to direct evidence.
O’Regan v. Arbitration Forums, Inc., 246 F.3d 975, 986 (7th Cir.
2001) (quoting Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391,
397 (7th Cir. 1997)). Even if one concedes that Scott and
Zimmerman were the “decision-makers” in Sutherland’s case (which,
as discussed below, is not so), their alleged attitudes still fail
to rise to the level of direct evidence of discrimination. As a
result, Sutherland must rely on the burden-shifting method.
McDonnell Douglas Burden-Shifting Method

Sutherland must show the following four elements to establish
a prima facie case and shift the burden to NSR: (1) she was a
member of a protected class; (2) she applied for, and was qualified
for, an open position; (3) the employer rejected her for the
position; and (4) those that were promoted had similar or lesser
qualifications for the job as she did. Bennett v. Roberts, 2002 WL
1420408, at *4 (7th Cir. July 2, 2002).

At the onset, NSR does not contest that Sutherland, as a
female, is a member of a protected class or that she suffered an
adverse employment action by their failure to promote. Rather, the
parties disagree as to the second and fourth prongs of the prima
facie case, namely, whether Sutherland was qualified for the

position of Trainmaster and whether similarly situated male


In order for Sutherland to meet her burden of being “similarly
situated,” she must show that there is someone directly comparable
to her in all material aspects. Patterson v. Avery Dennison Corp.,
281 F.3d 676, 679 (7th Cir. 2002). In considering material
aspects, the “court must look at all relevant factors, the number
of which depends on the context of the case.” Radue, 219 F.3d at
617.

Within the context of this case, the “relevant factors” are
(1) a candidate’s PCT score and (2) whether the candidate was
moving from a union position to a non-union position, because these
were the only factors used to initially determine if Sutherland
would be considered a viable Trainmaster candidate. Moving from
union to non-union also includes those candidates hired from
outside NSR, since they too are required to take and “pass” the PCT
to be considered for Trainmaster positions. Candidates for
Trainmaster that do not match Sutherland in the above criteria
necessarily have different qualifications and experience.
Therefore, those candidates cannot be considered similarly situated
to Sutherland for the purpose of satisfying the fourth element of
a prima facie case. Patterson, 281 F.3d at 679.

Of the twenty-two individuals who became Trainmasters since
the beginning of 1999, none were similarly situated to Sutherland.
Twelve of the employees were transferred or demoted from other

management positions and as a result, were not required to take the


2

Minute Order Form (06/97)

*

United States District Court, Northern District of INinois

Name of Assigned Judge farry ; Sitting Judge if Other
rate Judge Hi D. Leinenweber than Assigned Judge
CASE NUMBER 01 C 2337 DATE 8/8/2002
CASE Dahana Sutherland vs. Norfolk Southern Railway Co.,et al
TITLE
[Ie the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}
DOCKET ENTRY:
a0) o Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
G3) a Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearing on setfor____at :
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Q Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) oa Trial{set for/re-set for] on at
(8) Oo (Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
CFRCP4(m) OGeneral Rule21 OO FRCP41(a)(1) O FRCP41(a)(2).
(0) ff [Other docket entry) _ ENTER MEMORANDUM OPINION AND ORDER: Defendant’s Motion
for Summary Judgment is granted and the case is dismissed in its entirety.
dl) of [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
. A Number
No notices required inter of otis
Notices mailed by judge's stat. .
y 9 V]
Notified counsel by telephone. AUG gl
vo | Docketing to mail notices.
oY | Mail AO 450 form. eaumebtole. 2 b
Copy to judge/magistrate judge.

date maited notice

courtroom
wap deputy’s
initials,

Date/time reeived,in
cénteal Clerk’s.Oftice ailing deputy initiats



As previously discussed, Sutherland, according to NSR, does
not have the necessary qualifications to even make it past the
initial screening by the H.R. Dept. With a very low score on the
PCT, the H.R. Dept. classified Sutherland as “not viable.” This
classification was reached using an objective PCT score, with
notice of the fact that Sutherland was attempting to move from a
union position to a non-union, management position. NSR has chosen
this method of screening candidates for the position of
Trainmaster, as is its prerogative, and this Court will not sit as
a super-personnel department in judgment of NSR’s Trainmaster
selection process, other than to ensure that discriminatory animus
did not motivate Sutherland’s fate. See Nawrot v. CPC
International, 277 F.3d 896, 906 (7th Cir. 2002) (Courts will not
sit as super-personnel departments). NSR asserts the low PCT score
and union position held by Sutherland were the only reasons behind
its failure to promote. When Sutherland, Benford, Davis,
Henderson, Lesley, and Terry were all eliminated from consideration
for Trainmaster, no other factors besides union status and PCT
scores were relevant or used by the H.R. Dept. This legitimate,
non-discriminatory explanation would be sufficient to shift the
burden back to Sutherland to show the reason is merely a pretext
for discrimination.

For Sutherland to show that NSR’s explanation of why she was

not promoted was pretextual, she must demonstrate that the


employees scored above the objective cutoff set by NSR on the PCT,
and well above Sutherland, they cannot be seen as similarly
situated.

However, there were five other employees who, like Sutherland,
scored below the “recommended” and “recommended with reservations”
H.R. Dept. classification and also occupied union positions when
they were initially under consideration for Trainmaster. Four
males (Henderson (M), PCT score - 22; Terry (M), PCT score - 22;
Lesley (M), PCT score - 23; and Davis (M), PCT score - 20) and one
female (Benford (F), PCT score - 9) were similarly situated to
Sutherland. And like Sutherland, all were removed from
consideration based on their respective PCT scores coupled with
their status as union employees. Sutherland fails to present any
evidence to the contrary that affirmatively demonstrates she was
qualified for the position of Trainmaster or that establishes there
were similarly situated males promoted in her place. As a result,
Sutherland fails to establish a prima facie case under the
McDonnell Douglas burden-shifting method and NSR is entitled to
judgment as a matter of law.

Assuming, for the sake of argument, that Sutherland’s
proffered reasons for NSR’s failure to promote her do establish a
prima facie case, her claim would still fail because she does not

establish that NSR’s non-discriminatory reason was pretext.

-10-


As a Yardmaster, Sutherland was in a union position.
Trainmaster is a non-union, management position. Sutherland’s 17
was one of the lowest scores of all candidates who took the PCT,
and was well below the cut off for even “recommended with
reservations.” In January 2000, Alphonso Tabb (“Tabb”), Manager,
Professional Recruiting, in the H.R. Dept. responded to a request
from Scott asking for a list of viable candidates for anticipated
Assistant Trainmaster openings. After reviewing Sutherland’s file,
Tabb wrote in an e-mail that Sutherland was not a viable candidate
for Assistant Trainmaster (“not recommended”) and unless she had
undergone some formal education courses since she took the PCT, she
did not need to retake the PCT. Sutherland did not then, nor does
she now, assert that she has any additional formal education beyond
that listed on her resume from the time she joined NSR in 1993. As
a result of Tabb’s objective determination Scott did not consider
Sutherland for a promotion to any of the Assistant Trainmaster
positions that became available.

Second, NSR contends that none of the twenty-two individuals
who attained Trainmaster positions since Sutherland expressed an
interest in being promoted were similarly situated to Sutherland,
a requirement of the prima facie case. Additionally, NSR asserts,
the five employees who were similarly situated to Sutherland were
all passed over for consideration as Trainmasters, as Sutherland

was.


qualifications in writing. Upon receipt of Sutherland’s written
request and resume, Scott forwarded them, with his endorsement of
Sutherland as a candidate for Trainmaster, to the Senior
Superintendent of the Chicago Terminal, S.A. Murray.

In the two years following Sutherland’s request to become a
Trainmaster, twenty-two individuals, both men and women, were
either transferred, promoted, demoted, or hired to be Trainmasters
at NSR. Sutherland was not one of them. Instead, Sutherland
remained in her Yardmaster position and on June 29, 2000 filed a
claim with the Equal Employment Opportunity Commission (the “EEOC”)
alleging that she was passed over for promotion because she is a
female. On January 31, 2001, the EEOC issued Sutherland a right-
to-sue letter, and on April 4, 2001 she brought suit in this Court
alleging that NSR’s failure-to-promote was motivated by her being
female, in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e.

DISCUSSION
Legal Standard

When evaluating a motion for summary judgment, the court will
view all the evidence and draw all inferences in favor of the
nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). Only when there is no genuine issue of a material fact
will the court grant summary judgment. Krchnavy v. Limagrain

Genetics Corporation, F.3d, 2002 WL 1358591, at *3 (7th


consistent with their own guidelines, appears to be the real reason
(Sutherland has not shown the contrary), and the explanation was
sufficient to justify not promoting Sutherland to a management
position.

CONCLUSION

For the reasons set forth above, efendant’s Motion for

Summary Judgment is granted and the/case is dismissed in its

entirety.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

bate: lagea l. AID


together are used by the Human Resources Department (the “H.R.
Dept.”) to determine whether a candidate is eligible for a
Yardmaster position. With passing raw scores of 51 on each of the
two SRA tests, Sutherland was recommended for, and subsequently
assigned to, an Extra General Yardmaster position on September 22,
1996.

On the third test, the PCT, Sutherland received a score of 17.
This score put Sutherland in the bottom 10 percent of all those who
took the PCT. The PCT is designed to measure objectively a
candidate’s verbal and numerical problem-solving skills,
vocabulary, and ability to communicate. For the purposes of
obtaining a Yardmaster position, the PCT score is not used unless
an individual scores below the required levels on either of the two
SRA tests. Sutherland’s PCT score was not used in her promotion to
Yardmaster because her SRA scores were, by themselves, adequate.

Three years into her tenure as an Extra General Yardmaster,
Sutherland approached Burl Scott (“Scott”), Superintendent of NSR’s
Chicago Terminal, about her interest in being promoted to the
position of Trainmaster. This would be a promotion from a union
position, to a non-union, management position. During the
discussion, Scott asked Sutherland a number of questions, such as
whether working late with men in remote locations would be a
problem for either her or her family. At the end of the

conversation, Scott requested that Sutherland put her request and


,
IN THE UNITED STATES DISTRICT COURT EF I f i E
FOR THE NORTHERN DISTRICT OF ILLINOIS . D

EASTERN DIVISION - Abe...
‘AUB ~ 82099
DAHANA SUTHERLAND , Mudge Hany Dy Lei 7,
LL & Districk contebion
Plaintiff,
v. Case No. 01 C 2337
NORFOLK SOUTHERN RAILWAY Hon. Harry D. Leinenweber
COMPANY and NORFOLK SOUTHERN
CORPORATION,
Aug 9 in
Defendants.

MEMORANDUM OPINION AND ORDER

Before this Court is Defendant Norfolk Southern Railway’s
(“NSR”) Motion for Summary Judgment pursuant to FEep. R. Civ. P. 56.
BACKGROUND

Plaintiff Dahana Sutherland (“Sutherland”) was hired by NSR in
September 1993 as a switchman in its Calumet Yard. After two years
as a switchman Sutherland asked M.L. Crawley (“Crawley”), then
Superintendent of the Chicago Terminal, and S.B. Gibson (“Gibson”),
then General Yardmaster, that she be considered for a position as
a Yardmaster. Shortly thereafter, Gibson forwarded Sutherland’s
request, with his endorsement, to NSR management. Prior to
assignment as a Yardmaster, NSR requires that candidates take three
tests. The tests are the SRA Verbal, the SRA Nonverbal, and the
Personnel Classification Test (the “PCT”). On August 28, 1996,

Sutherland achieved “passing” scores on the two SRA tests, which

db


explanation: (1) has no basis in fact, (2) was not the real
reason, or (3) was insufficient to motivate the action. Wells v.
Unisource Worldwide, Inc., 289 F.3d 1001, 1006 (7th Cir. 2002).
“Pretext means a dishonest explanation, a lie rather than an oddity
or an error.” Peele v. Country Mutual Insurance Co., 288 F.3d 319,
326 (7th Cir. 2002) (internal quotations omitted).

The NSR employee manual states criteria for how the H.R. Dept.
will determine if a Trainmaster candidate is viable. (Supplemental
Declaration of Tabb, Ex. A.) As a threshold, the decision is based
on achieving a certain score on the PCT; a score Sutherland did not
achieve. Sutherland has not demonstrated that NSR deviated from
these guidelines in her case, or in the case of any other
Trainmaster candidates.

Sutherland attempts to suggest that Scott was the decision
maker in her case, and that because he may or may not have been
chauvinistic, that the failure-to-promote explanation given by NSR
is not the real reason for her non-promotion. But Sutherland fails
to understand that the decision maker in her situation, as it was
for anyone labeled “not recommended,” was Tabb in the H.R. Dept.
Scott would have been the decision maker had Sutherland passed the
PCT -~ but she did not. In fact, Scott recommended Sutherland for
the position of Assistant Trainmaster prior to any knowledge of her
PCT score. Sutherland was only removed from consideration for the

position after Tabb reviewed the relevant factors in her file (PCT

- 12 -