Wade cannot establish a prima facie case of discrimination, but even if he could, his claims
would still fail because he cannot demonstrate that Amtrak’s reason for terminating him was
pretextual. Amtrak offered a legitimate, nondiscriminatory reason for its action—that Wade
violated the GCOR rule which caused the derailment, which warranted termination given Wade’s
extensive disciplinary history. To establish pretext, Wade needs to show that Amtrak's reasons for
terminating him had no basis in fact, did not actually motivate the decision, or were insufficient to
support the decision. Grayson v. O'Neill, 308 F.3d 808, 820 (7th Cir, 2002). In determining whether
an employer's proffered reason for an employment action was pretextual, the court is not concerned
with whether the employer made a bad decision, but rather the focus of the inquiry is whether the
employer honestly believed in the reasons it offered. Wade v. Lerner New York, Inc., 243 F.3d 319,
323 (7th Cir. 2001). "The federal anti-discrimination laws do not authorize judges to sit as a kind
of 'super-personnel department’ weighing the prudence of employment decisions." Gleason v.
Mesirow Fin., Inc., 118 F.3d 1134, 1139 (7th Cir. 1997). Furthermore, it is not relevant whether
Wade actually violated the rule, it only matters whether the decision maker (in this case McClarty)
honestly believed that Wade violated the rule. "[A]rguing 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 whether the cmployer's description of its reasons is honest.’ " Kariotis v.
Navistar Int'l Transp. Corp., 131 F.3d 672, 677 (7th Cir.1997) (quoting Gustovich vy, AT & T
Communications, Inc., 972 F.2d 845, 848 (7th Cir.1992)) (internal citation omitted) (emphasis in
original).

Wade attempts to establish pretext by contending that McClarty did not honestly believe that

Wade violated the GCOR rule because McClarty acknowledged that Wordlaw also violated the

13


he should have been traveling at a speed that would have allowed him to stop prior to traveling
through the misaligned switch. Following Hearing Officer Demotses’ decision, Amtrak’s General
Manager of the Midwest Corridor, Steve McClarty, decided to terminate Wade. McClarty decided
that termination was appropriate given Wade’s disciplinary history, which included a 45-day
suspension in 1993 for refusing a direct order, a 30-day suspension in 1997 for operating a train in
excess of the speed limit in a restricted spced zone, counseling in 200] for excessive absentceism,
and a 30-day suspension in 2001 for operating a train in excess of |0 mph above the speed limit.

The BLE appealed McClarty’s decision to terminate Wade, but Amtrak denied this appeal.
Amtrak’s Director of Labor Relations Larry Hriczak found that the dismissal was not arbitrary,
capricious or excessive because Wade incurred his second operating rule violation in ten months and
his third in four years, and also because cach of the prior violations involved speeding, BLE then
requested a hearing before the Special Board of Adjustment, a three member arbitration panel,
consisting of a neutra] chairperson, a member representing Amtrak and a member representing the
Union. The Board likewise denied BLE’s claim and upheld the termination,

Wade claims that he was fired because of his race (African American) and his national origin
(Belizean), pointing out that Allen told him at his hearing that he was being “set up” and that the
Amtrak employee who charged bim with the violations that led to his termination, Norel Pride, “had

a history of singling [Wade] out because of his Belizean accent and his race.”

fl. STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings, depositions, and other materials in

the record show that there is no disputed material fact and that the moving party is entitled to


answered by Hearing Officer Demotses and the decision to terminate Wade was made by McClarty,
and statements by nondecision-makers cannot satisfy a plaintiff's burden of proving discrimination.
Simmons y. Chicago Bd. of Educ., 289 ¥.3d 488, 492 (7th Cir. 2002). Wade offers nothing to
connect the alleged discriminatory views of Pride and Allison to the actions of the decision makers,
Demotses and McClarty. “[Bligotry, per se, is not actionable. It is actionable only if it results in
injury to a plaintiff; there must be a real link between the bigotry and an adverse employment
action.” Gorence, 242 F.3d at 762. Even assuming that Pride and Allison harbored improper
discriminatory views, Wade has not shown that they infected the decision making process.
Similarly, Allen’s alleged passing reference to the fact that Wade was “set up” is insufficient to
demonstrate that Wade was discharged for an illegal reason. Even if Wade had presented admissible
evidence that Allen had told him he was being set up, he presents no cvidence to suggest that Allen
believed that Wade was set up because af his race or national origin, Wade had the opportunity to
depose Allen so that Allen could elaborate on the cryptic comment allegedly made outside the
hearing room, but declined to do so?

In the absence of evidence sufficicnt to proceed under the direct method, Wade must rely on
the familiar McDonnell Douglas “burden-shifting” method of proof. Wade, however, cannot
establish a prima facie case of discrimination under the AfcDonnell Douglas test because he cannot
show that he was mecting his employer’s legitimate expectations or that similarly situated employees

outside the protected class were treated more favorably.

? Wade also declined to question Allen at the hearing despite the fact that Allen
approached him with this more than helpful information.

9


[Tall have drawn. Wade's statement docs not contradict the substance of Amtrak’s statement; it is
simply argumentative, Evasive and argumentative statements are inappropriate because they do not
assist the court in identifying the material facts that are in dispute, and courts in the past have
stricken entire statements when the court must wade through improper denials and legal argument
in search of disputed facts. See Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524,
528 (7th Cir. 2003); Market v. Jilinois Bell Tel. Co., No. 01 C 3841, 2003 WL 22697284, *4-5 (N.D.
U. Nov. 13, 2003). In this case, however, the Court will strike only Wade’s responses to Amtrak’s
statements 40 and 44 and, thus, consider Amtrak’s statements admitted. Finally, Wade frequently
relies on inadmissable hearsay to show that summary judgment is inappropriate. For example, he
states that Allen told him he was being set up. But Wade docs not offer a deposition or affidavit
from Allen supporting this testimony, and instead points only to his own declarations claiming that
Allen made such a statement. !earsay, however, is incapable of creating a genuine issue of material
fact. Woods v. City of Chi. 234 F.3d 979, 988 (7th Cir. 2000), Winskunas v. Birnbaum, 23 F.3d
1264, 1268; see also American Nat'l Bank and Trust Co. of Chi., No. 0! C 1395, 2003 WL 1712561
(N.D. Ll. Mar, 28, 2003) (refusing to consider hearsay statements in summary judgment stage);
Shannon v. Sheahan, No. 01 C 252, 2003 WL 366584 (N.D, Tit. Feb. 18, 2003) (same).

Not only is Wade’s 56.1 Statement of Facts insufficient, so too is his Memorandum in
Opposition to the Defendant’s Motion. Wade’s Memorandum contains no statement of fact. The
purpose of a Local Rule 56.1 statement of facts is not to replace the statement of facts section of a
memorandum of law. Cleveland v. Prairie St. Coll., 208 F. Sup. 2d 967, 972-73 (N.D. Il. 2002).

By neglecting to include a statement of facts in his memorandum, Wade forces the Court to sift


judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. y. Catrett, 477 U.S. 317, 322-23,
106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). This Court considers the evidence in the light most
favorable to the non-moving party and draws all reasonable inferences in favor of that party.
Schneiker y, Fortis Ins. Co., 200 F.3d 1055, 1057 (7th Cir. 2000). The non-moving party, however,
must make a showing sufficient to establish any essential element for which he will bear the burden
of proofat trial. Celotex Corp., 477 U.S. at 322-23. Summary judgment should be granted when the
record as a whole shows that a rational trier of fact could not find for the non-moving party. Rogers
y. City of Chi,, 320 F.3d 748 (7th Cir. 2003) (citing Commercial Underwriters Ins. Co, v. Aires
Envtl. Servs., 259 F.3d 792, 795 (7th Cir. 2001)).

Before proceeding to the merits, a brief refresher on the rules of civil procedure is necessary,
for Wade’s Local Rule 56.1 statement of facts and his Memorandum in Opposition to Defendant’s
Motion are insufficient. Local Rule 56.1 requires that a party opposing a motion for summary
judgment file a concise response to the movant’s statement of facts that shall contain, among other
things, “a response to each numbered paragraph in the moving party’s statement... .” Wade fails
to respond to the vast majority of Amtrak’s statements of fact. Indced of the 62 statements contained
in Amtrak's 56. 1(a) statement, Wade provides responses to only 19 statements of fact. Accordingly,
any fact to which Wade failed to respond is deemed admitted. See Local Rule 56,1(b)(3); Smith v.
Lamz, 321 F.3d 680, 683 (7th Cir, 2003), Further, several of the 19 responses that Wade does
provide fail to properly controvert Amtrak’s statement. For example, Wade denies several subparts
to Amtrak’s Statement Nos. 40 and 44 regarding the testimony of Carbonelli and Hall at Wade's
disciplinary hearing. But Wade offers no evidence to suggest that Amtrak has misquoted or

mischaracterized the testimony. Instead, Wade takes issue with the conclusions that Carbonelli and


939 (7th Cir. 2003) (plaintiff may rely on circumstantial evidence under direct method, but
“circumstantial evidence... must point directly to a discriminatory reason for the employer’s action
....”) Wade first points to remarks made by Norcl Pride, Wade’s immediate supervisor, as evidence
that he was terminated because the employer (or in this case, the employer’s agent) harbored an
illegal discriminatory motive. According to Wade, Pride mocked his Belizean accent and criticized
him for dating a white female employee. Wade also claims that “it was clear that Pride favored
white employees over black employees . .. [becausc he] was friendlier with the white employecs and
was ona first name basis with them.” Wade further claims that Pride’s improper animus was shared
by Stan Allison, a white enginecr, who told him that he did not “belong here.” Finally, Wade states
that at his disciplinary hearing, Allen approached him and told him that “they [Amtrak] set you up.”
Wade’s argument is unconvincing. First, there is no solid evidence in the record to support Wade’s
allegations. He cites only to his deposition testimony and his self-serving affidavit in which he offers
the out of court declarations of Pride, Allison, and Allen for their truth—relying impermissibly on
hearsay. When responding to a summary judgment motion, a party must identify evidence of'a type
admissible at trial to create an issue of material fact, See Adams, 324 F.3d at 939; Haywood y.
Lucent Techs., Inc., 323 F.3d 524, 533 (7th Cir. 2003); Russell v. Acme-Evans Co., 5| F.3d 64, 68
(7th Cir. 1998) (rejecting plaintiff's efforts to establish racial motive through hearsay cvidence); Fed.
R. Civ. P. 56(e).

But even putting aside hearsay concerns, the cvidence offered by Wade is insufficient to
create a genuine issue of material fact. Neither Pride nor Allison, both of whom Wade identifies as
harboring improper discriminatory motives, were the decision-maker in the case. Although Pride

charged Wade with violating the GCOR, the question of whether Wade had violated those rules was


Mine Orcer For (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge William J. tlibbler Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 4768 DATE 12/1/2003
CASE RONALD WADE vs. NATIONAL RAILROAD PASSENGER CORP
TITLE

{ln the following box (a) indicate the party Gling the mation, ¢.g., pluintift, defendant, 3rd purty plaintiff, and (b) state brietly the nature
Of the motion being presented.|

MOTION;
Defendant’s Motion for Summary Judgment (doc. #13)
DOCKET ENTRY:
(1) q Filed motion of [ use listing in “Motion” box above.]
Q) i) Brief in support of motion due _
(3) QO Answer brief to motion due___—«. Reply to answer briefduc__
(4) imi} Ruling/Hearingon sett for at
(5) Oo Status hearing[hcld/continued to] [set for/re-set for]on___— set for at
(6) im Pretrial conference[held/continucd to] [set for/re-set for]on set for at.
(7) o Trial[set for/re-set for]on at _
(8) Oo [Bench/Jury trial] [Hearing] held/continucdto at.
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) = CLocal Rule 41.1 CO FRCP41 (a1) FRCP41(a)(2).
qo) wf [Other docket entry] Enter Memorandum Opinion and Order. For the attached reasons,

Defendant’s Motion for Summary Judgment [doc. #13] is GRANTED, All pending dates and motions
are terminated as moot.

aly ff {For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document.

Number

ices required.
‘No notices required. umber of notices

6 93,2003

Socheted

doofeting Men

Notices mailed by judge's staff.

Notified counsel by telephone.

oY | bucketing to mail notices.

| Mail AO 450 form, 4yn03 LoILsia “sn
waa

Copy to judge/magistrate judge.

Ke

coustroom é2:L Wd 2- 93060
JHC deputy's
initials 0 Baltasar

‘niling deputy iniciaty

centyal Clerk's Offige



procecding over it. Wade claims that he could not do so because the complexity of the switch and
the nighttime conditions made it difficult for him to discern the misaligned switch. Wade’s
argument is unconvincing because courts can not redefinc employers’ legitimate expectations, Wells
y. Unisource Worldwide, Inc., 289 F.3d 1001, 1007 (7th Cir. 2002); see also Foster y, Arthur
Anderson, L.L.P., 168 F.3d 1029, 1035 (7th 1999) (refusing to question a termination pursuant to
a policy requiring employces to notify the employer if they would be late). Amtrak expected its
locomotive engineers to follow the GCOR operating rules, to see a misaligned switch, and to stop
before proceeding over it, Wade failed to do so, and cannot show that he was meeting his
employer’s legitimate expectations merely by questioning whether Amtrak’s expectations were
reasonable.

Wade also cannot demonstrate that similarly situated employecs outside the protected class
were treated more favorably. To show that another employee is "similarly situated,” a plaintiff must
show that there is someone who is comparable to her in all material respects. Patterson y. Avery
Dennison Corp., 281 F.3d 676, 680 (7th Cir.2002). Generally, a plaintiff must establish that he and
the other employee dealt with the same supervisor, were subjcct to the same rules and standards, and
engaged in a similar conduct without such differentiating or mitigating circumstances as would
distinguish their conduct or the employer's treatment of them. Appelbaum v. Milwaukee Metro.
Sewerage Dist., 340 F.3d 573, 580 (7th Cir. 2003). Wade must thus show that he was not different
from his comparators with respect to performance, qualifications, or conduct. Durkin v. City of
Chi,, 341 F.3d 606, 63-14 (7th Cir. 2003). Wade attempts to demonstrate that Amtrak treated
similarly situated white or non-Belizean employees more favorably by comparing himself to the

tower operator Wordlaw, a Metra employce. Wade suggests that Wordlaw is an appropriate

li


Wade focuses much of his argument that he was meeting his employer’s legitimate
expectations by rehashing the details of the derailment. Wade continues to arguc that the derailment
was Wordlaw’s fault, and not his. Wade, however, had a disciplinary hearing where he was
represented by three Union members during which he presented his view that he was not responsible
for the accident. After a thorough review, the Hearing Officer sustained the charges against Wade
and determined that he violated the GCOR “restricted speed” rule and that he was partially
responsible for the derailment, a decision upheld by the Special Board of Adjustments. Despite
Wade’s efforts to shift responsibility for the derailment to Wordlaw, the law in this circuit is clear:
an employee's own assertions that his performance is satisfactory are not sufficient to prove that he
met the cmployer’s legitimate expectations, Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1460
(7th Cir. 1994). Wade had the opportunity to convince his employer that the derailment was
Wordlaw’s fault and not his, and could not do so?

Wade also argues that he was mecting his employer’s legitimate expectations because he was
operating at restricted speed (despite the conclusion to the contrary reached by Hearing Officer
Demotses). But Wade merely denies that he violated the operating mile by offering his own
interpretation of the rule. He claims that he was operating at restricted speed because he did stop
short of the switch as he approached the Joliet interlocking and reccived a stop signal. But Amtrak

expected that an engineer operating at restricted speed be able to spot a misaligned switch before

> Ifa plaintiff produces evidence sufficient to raise an inference that an employer applied
its legitimate employment expectations in a disparate manner, the second and fourth prongs
merge and allow the plaintiff to proceed to the pretext inquiry. Peele v. Country Mut. Ins. Co.,
288 F.3d 319, 329 (7th Cir. 2002), Wade makes no such argument and offers no evidence to
suggest that his hearing was a sham, other than the alleged comment made by Allen, which as the
Court noted earlier, is hearsay.

10


through his Local Rule 56.) statement in order to identify the proper sequence of events and recreate

the factual background.

I. ANALYSIS

Title VII makes it unlawful for an employer to discharge any individual because of such
individual’s race, color, religion, sex, or national origin. 42 U.S.C. §2000 e-2(a). A plaintiff can
overcome a defendant’s summary judgment motion in an employment discrimination case by using
either the direct method or the indirect method. Under the direct method, the plaintiff must show
an acknowledgment of discriminatory intent by the employer or circumstantial evidence from which
an inference of discriminatory intent can be drawn. Gorence v, Eagle Food Ctrs., Inc.,242 F.3d 759,
762 (7th Cir. 2001). Under the indirect, burden-shifting method described in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 801-03, 93 S. Ct, 1817, 36 L. lid. 2d 668 (1973), a plaintiff may
establish a prima facie case of discrimination by showing that he (1) is a member of a protected
class; (2) was mecting his employer’s legitimate expectations; (3) suffered an adverse employment
action; and (4) was treated differently than similarly situated employecs outside the protected class,
after which the burden shifts to the employer to offer a legitimate non-discriminatory reason for its
action, McDonnell Douglas Corp., 4)1 U.S. at 801-03. if the employer comes forward with such
a reason, the burden returns to the plaintiff to produce evidence sufficient to show that the reason
is pretextual, Jd.

Wade has no direct evidence that he was fired because of his race or national origin — there
is no smoking gun revealing the Defendant’s discriminatory intent. Instead, Wade relies on

circumstantial evidence to support his claims. See Adams v. Wal-Mart Stores, Inc., 324 F.3d 935,


the reverse movement, however, the damaged switch caused the train cars to move down one track
and the locomotive reversed down another track and the train derailed.

Following the derailment, both Amtrak and Metra conducted an on-site investigation of the
incident. Amtrak removed Wade from service pending the investigation, since his actions
potentially violated the GCOR. As aresult ofits investigation, Amtrak charged Wade with violating
GCOR rules governing “Manual Interlockings” and “Movement at a Restricted Speed.” Wade
received a disciplinary hearing regarding these charges on January 16, 2002, where three BLE
representatives appeared on his behalf. At the hearing, Janct Carbonelli, a Trainmaster employed
by Metra, testified about her investigation. Carbonelli stated that Wordlaw informed her that Wade’s
train derailed shortly after Wade attempted the reverse move. Next, Amtrak Service Manager, John
Hall, testified regarding his investigation of the derailment. According to Hall, when Wade
proceeded through the misaligned switch, the switch was damaged, and the damaged switch later
caused the derailment when Wade attempted to reverse. Hall further testified that if an engineer is
traveling at restricted speed, the engineer would be able to identify whether the switches are properly
aligned and stop prior to proceeding through a misaligned switch. Hall concluded that responsibility
for the accident rested upon both Wade and Wordlaw. Amtrak Service Manager Larry Allen, Metra
employce Jim Renfrow, and Union Representative Lisa Davis also testified at Wade’s hearing, but
neither party suggests that any of these witnesses’ testimony influenced the hearing officer’s
decision. Although Wade had right to testify on his own behalf, he chose not to do so.

fearing Officer Carl Demotses found that the testimony of the Amtrak witnesses was
credible and consistent and that Amtrak had proven the charges. Demotses found that Wade was

responsible for the derailment because he proceeded through the improperly aligned switch when



GCOR rules and was partially responsible for the accident. But merely because McClarty
acknowledged that Wordlaw was partially responsible for the accident does not demonstrate that
MeClarty did not honestly believe that Wade was also accountable for the accident or that he did not
honestly believe that Wade failed to operate his train at restricted speed. McClarty testified that
tower operator’s Violations contributed to the derailment, but he also testified that Wade violated the
GCOR rule governing “restricted speed” and that Wade was partly to blame for the accident.
Grasping at straws, Wade launches a second conspiracy theory, this time directed at
McClarty, claiming that Union officials told him that McClarty was out to get him. But Wade offers
no evidence in support of this conspiracy theory, other than his self-serving statements, As noted
earlier, Wade cannot defeat summary judgment by relying upon inadmissible hearsay in an affidavit
or deposition. Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997); Bombard v. Fort
Wayne Newspapers, 92 F.3d 560, 562 (7th Cir. 1996). The undisputed facts show that Amtrak
reached its decision after Wade received a hearing, represented by three union members, and Wade
has offered no evidence that McClarty did not honestly believe the findings made by the Hearing

Officer.

TV. CONCLUSION
The Court holds that Wade has pointed to no evidence, direct or circumstantial, to create a
genuine issue of material fact as to whether he was fired because of his race or national ongin, and
thus cannot overcome Defendant’s summary judgment under the direct method. Further, Wade has
not established that he was meeting his employers legitimate expectations, that other similarly

situated employees outside the protected class were treated more favorably, or that Amtrak’s

14


several tracks intersect and switches control the tracks on which a train will proceed. According to
the General Code of Operating Rules (GCOR),' locomotive enginecrs must operate at a “restricted
specd” when passing through a “stop” signal. The GCOR defines “restricted speed” as “a speed that
allows stopping within half the range a vision short of: Train, Engine, Railroad Car, Men or
equipment fouling the track, stop signal or Derail or switch lined improperly. .” In other words, if
an engineer is operating a train at the “restricted speed” he will be able to identify whether the
switches are properly aligned and stop short of a misaligned switch.

At the Joliet interlocking, a tower operator Keith Wordlaw (a Metra employcc) was
responsible for aligning the switches for passing trains’ intended routes. As the train that Wade
operated approached the Jolict interlocking, he received a stop signal, which required him to proceed
only after getting an authorization either by a color light signal or from the tower operator. Shortly
after 7:00 p.m., Wade received permission from Wordlaw to proceed through the signal. But even
though Wordlaw had given Wade permission to pass through the stop signal, the tracks were not
properly set for his intended route. Wade operated a portion of the train through the misaligned
switch, causing damage to the switch and diverting the train from its intended route, After Wade
operated a portion of the train through the misaligned switch, he realized that he was on the wrong
track and stopped the train. Wade then requested and received permission from Wordlaw to make

areverse movement in order to realign the train in order to procecd along the proper route. During

' The General Code of Operating Rules is a sct of rules and requirements for operating
trains. Federal law requires railroads to certify its locomotive engineers before they become
qualified to operate trains, As part of this ccrtification process, Wade passed Amtrak's
locomotive engineer certification course, which included instruction and an examination on the
GCOR.



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

RONALD WADE, )
) a
Plaintiff, ) DOCKETED
} DEC 03 2003
v. ) Case No. 02 C 4768
)
) The Honorable William J. Hibbler
NATIONAL RAILROAD PASSENGER —)
CORP., )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Ronald Wade sued his former employer, the National Railroad Passenger Corporation, d/b/a
Amtrak (Amtrak), alleging that Amtrak violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§2000 e-2(a) et seq. According to Wade, Amtrak fired him because of his race and national origin.
Amtrak moves for summary judgment.

I. BACKGROUND

Wade, a native of Belize, began working for Amtrak in October 1986. He worked as a
locomotive enginecr throughout his tenure with the Defendant. Wade belonged to the Brotherhood
of Locomotive Engineers (BLE), and a collective bargaining agreement betwecn Amtrak and BLE
governed the terms and conditions of Wade’s employment.

On December 24, 2001, Wade was operating a train carrying passengers between St. Louis

and Chicago. The route required Wade’s train to pass through an interlocking at Joliet, where

AG



comparator because Wordlaw, like Wade himself, was obligated to follow the GCOR rules. But
Wordlaw was an employee of Metra, not Amtrak. Simply because Wordlaw was required to follow
the same regulatory rules does not meant that Metra must Jook to Amtrak (or vice versa) to
determine appropriate discipline for its employees. Wade also points to six Amtrak enginecrs, all
of whom were disciplined, but not terminated, for damaging switches or causing derailments or
similar accidents. None of the potential comparators, however, had a disciplinary record as
extensive as Wade’s record, and thus cannot be considered as similarly situated, First, none of the
other six engineers had been cited for speeding within a year of their discipline, as Wade had been.
Moreover, while Wade had received a total of three suspensions of thirty days or longer before his
termination, only two potential comparators, R. Black and M. Fritz, had received even one 30-day
suspension, which they received fifteen and six years, respectively, prior to the most recent
discipline. Wade argues that the Court should not consider his previous disciplinary history because
it was improper and also motivated by a discriminatory animus. But Wade again relics on his own
assessment of his prior disciplinary issucs, pointing to self-serving statements in his affidavits and
deposition. Slowiak v, Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir, 1993) (sclf-serving
affidavits insufficient to defeat summary judgment). Wade never filed any charge alleging that these
prior disciplinary actions were the product of discrimination and cannot advance any such claim
now. Finally, the five of the six engineers that Wade offers as comparators accepted responsibility
for their rule violations and waived their right to a formal hearing, unlike Wade. Given Wade’s
extensive disciplinary history and his refusal to accept responsibility for his accident, the other six
employces cannot be considered to be similarly situated. See Greer v. Amesqua, 212 F.3d 358, 370

(7th Cir. 2000) (employees lacking similar disciplinary history not similarly situated),

12


proffered reason for discharging him was pretextual, and thus cannot overcome Defendant’s

summary judgment under the indirect burden-shifting method. Defendant’s motion for summary

judgment is GRANTED.
IT IS SO ORDERED.
yal fos KiiA.
Dated The Honorab/é William J. {libbler

United States District Court