McDaniel v. Progress Rail Locomotive

343 F.Supp.3d 753

David MCDANIEL, Plaintiff,

v.PROGRESS RAIL LOCOMOTIVE, Defendant.

Case No. 17-cv-7904

United States District Court, N.D. Illinois, Eastern Division.

Signed November 1, 2018

John Joseph Scharkey, Joanne Hannaway Sweeney, Zachary Michael Slavens, Robert D. Sweeney, Sweeney & Scharkey, LLC, Chicago, IL, for Plaintiff.

Jennifer L. Colvin, Norma Manjarrez, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

John Robert Blakey, United States District Judge

Plaintiff David McDaniel sued his former employer, Progress Rail Locomotive, Inc., under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. , alleging that Defendant both discriminated and retaliated against him in violation of the statute (Counts One and Two). [1]. Plaintiff also brings a retaliatory discharge claim under Illinois law (Count Three). Id. Progress Rail moved for summary judgment. [42]. For the reasons explained below, this Court grants Defendant's motion.

I. Background

A. Local Rule 56.1 and Evidentiary Rules

The facts in this discussion come from Defendant's Local Rule 56.1 statement of material facts [44] and Plaintiff's Local Rule 56.1 statement of additional facts [45]. This Court has broad discretion to enforce the local rules governing summary judgment. See, e.g. , Petty v. City of Chicago , 754 F.3d 416, 420 (7th Cir. 2014).

Plaintiff has objected to many of Progress Rail's facts, which are based upon a variety of different exhibits, on general "hearsay and foundation" grounds. See [45] ¶¶ 44, 45, 63, 64, 65, 66, 67, 68, 69. Specifically, all but one of Plaintiff's objections concern Progress Rail's routine investigatory interview and disciplinary hearing forms, [44-19]; [44-25]; [44-26]; [44-27]; [44-28], which either transcribe (in the interviews) or summarize (in the hearings) the questions asked by Plaintiff's supervisor, Jonathan Howard, and the responses given by Plaintiff. This Court will first address the admissibility of these forms before proceeding to Plaintiff's additional objections.

1. Plaintiff's Foundation Objections

First, regarding Plaintiff's foundation objections, Fed. R. Civ. P. 56(c)(2) permits a party to object "that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." See Rao v. Gondi , No. 14 C 66, 2017 WL 2445131, at *3 (N.D. Ill. 2017). But Plaintiff fails to argue why he believes the exhibits lack a proper foundation, nor does he proffer any factual basis to challenge authenticity or otherwise explain how the documents—all of which appear to be routine business records—will not be admissible at trial.

A party moving for summary judgment "need not explicitly set forth in its Local Rule 56.1(a)(3) statement the basis...for each piece of evidence being admissible nor need it anticipate and respond in advance to every possible objection that might be raised to the admissibility of a piece of evidence." Fenje v. Feld , 301 F.Supp.2d 781, 811 (N.D. Ill. 2003). Without any explanation as to why the exhibits lack a proper foundation or why they are otherwise inadmissible at trial, Plaintiff's authenticity objections are overruled. See also id. at 789 ("Even if a party fails to authenticate a document properly or to lay a proper foundation, the opposing party is not acting in good faith in raising such an objection if the party nevertheless knows that the document is authentic.").

2. Plaintiff's Hearsay Objections

For the purposes of the present motion, the law also does not require Defendant to articulate a hearsay exception, or prove that certain statements are not hearsay, for each piece of evidence it introduced. Id. at 811. Hearsay is defined, of course, as an out-of-court statement "offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c) ; United States v. Rettenberger , 344 F.3d 702 (7th Cir. 2003). Out-of-court statements offered for other purposes, however, such as showing the speaker's state of mind, as well as offers and negotiations between parties, are not hearsay. Fenje , 301 F.Supp.2d at 811. Certainly, when Progress Rail and its employees state in a routine business record that they made a particular decision based upon information reported to them, such an exhibit would survive a hearsay objection. See id. ("While the statements reporting such information generally will be hearsay not admissible to show the truth of the reported information, the statements are not inadmissible hearsay for purposes of showing the information relied upon or considered in making a decision."). Thus, exhibits [44-19], [44-25], [44-26], [44-27], and [44-28] may be considered here. Additionally, Plaintiff's own prior statements in the investigatory interviews and disciplinary hearings—which were made in proceedings attended by his Union Representative, see, e.g. , [45] ¶ 45, and which he at no point alleges were inaccurately transcribed or summarized—are also admissible as admission of a party-opponent. Fenje , 301 F.Supp.2d at 811 ; see also [44-22] (accident report prepared by Plaintiff containing almost identical language to his investigatory interview statement, [44-25] ).

3. Plaintiff's Remaining Objections

Finally, Plaintiff also objects to many of Progress Rail's paragraphs for containing "more than a single concise statement of fact." See, e.g. , [45] ¶¶ 62, 64, 65, 66. But Local Rule 56.1(a) requires only that Progress Rail's 56.1(a)(3) statement "consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph." This Court finds that Progress Rail has satisfied this requirement, and thus overrules Plaintiff's objections.

B. Plaintiff's General Employment & Supervisory Structure

Plaintiff worked as a material handler at Progress Rail's facility in LaGrange, Illinois from 2005 until his termination in April 2017. [45] ¶¶ 2, 33. Progress Rail is a manufacturer of diesel-electric locomotives and diesel-powered engines. Id. ¶ 2. While the parties dispute what exactly a material handlers' job responsibilities included, they agree that Plaintiff's duties encompassed loading and unloading materials of varying size and weight into material locations, performing inventory count, and assembling engine kits. Id. ¶ 33.

Jonathan Howard worked as a Warehouse Supervisor at Progress Rail and directly supervised Plaintiff from the beginning of 2016 through Plaintiff's termination. Id. ¶ 34. In addition to Plaintiff, Howard supervised nine employees: eight material handlers (two of whom were welders on temporary assignment with the department as material handlers) and one clerk. Id. George Pekarik served as the General Supervisor from 2006 through late September 2016, after which he was promoted and no longer had supervisory responsibilities over warehouse employees. Id. ¶ 36. As General Supervisor, Pekarik served as Howard's direct supervisor. Id. Mark Walker was promoted to General Supervisor in September of 2016, at which time he became Howard's direct supervisor. Id. ¶ 37.

C. Progress Rail's Safety Protocol & Disciplinary Process

Progress Rail enforces "shop rules," which identify examples of behavior constituting grounds for corrective disciplinary action. Id. ¶ 16; [44-8]. Shop Rule 31 prohibits disregard of "safety rules of common safety practices." [44-8] at 3. Neither party disputes that one of these safety rules requires proper lifting techniques. [45] ¶ 24. Specifically, Progress Rail prohibits employees from manually lifting heavy materials; employees are required to use a mechanical lift assist, including a hoist or a lifting device, for lifting any material heavier than 35 pounds. Id. ¶¶ 25-26. Plaintiff does not dispute that he was aware of this policy and trained on Progress Rail's safety protocols for lifting heavy materials at his new hire orientation and throughout his employment. Id. ¶¶ 27, 38. As part of his new hire training, he was specifically trained on how to safely operate cranes used to lift materials. Id.

Progress Rail also enforces general safety rules regarding cell phone use. Id. ¶ 29. Under these rules, cell phones are prohibited while operating any equipment (mobile or stationary) and are "not permitted to be out in the open or visible within aisle lines of a manufacturing area," save for exceptional work-related purposes. [44-11] at 3.0. Again, Plaintiff does not dispute that he was aware of Progress Rail's cell phone policy. [45] ¶ 31.

When Progress Rail has reason to believe an employee has violated a shop rule, it holds an investigatory interview and disciplinary hearing prior to taking any disciplinary action. Id. ¶ 14. At the investigatory interview and disciplinary hearing, employees are entitled to Union representation. Id. Either party is also allowed to bring in witnesses to determine the facts and circumstances surrounding an incident. Id. The supervisor investigating the alleged infraction completes the investigatory interview and disciplinary hearing forms, which transcribe (in the interviews) and summarize (in the hearings) the meetings. Id. ; see, e.g. , [44-19]; [44-25]; [44-26]; [44-27]; [44-28].

Once an employee has participated in an investigatory interview and disciplinary hearing, Progress Rail determines what disciplinary action to take against the employee. [45] ¶ 21. Progress Rail's employee rules of conduct contains a progressive disciplinary process for shop rule violations. Id. ¶ 21; [44-8] at 4. The policy outlines a gradual increase in discipline, beginning with a written reprimand, and progressing to a balance of shift (BOS), a BOS plus one, three, five, ten, or twenty working days, and discharge. Id. In making progressive discipline decisions, the policy also provides that Progress Rail "will not take into account any prior infractions which occurred more...