Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 1 of 47 FILED JUNE 8, 2007 MICHAEL W. DOBBINS CLERK, U.S. DISTRICT COURT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MELVIN BARNES, TRACY STEELE, ) and JEREMY WILLIAMS on ) behalf of themselves and all other black ) persons similarly situated, ) ) Court No. 04 C 1249 Plaintiffs, ) ) Judge James B. Zagel v. ) ) Magistrate Judge Michael T. Mason CANADIAN NATIONAL RAILWAY ) COMPANY, GRAND TRUNK ) CORPORATION, GRAND TRUNK ) WESTERN RAILROAD, INC., ) ILLINOIS CENTRAL CORPORATION ) ILLINOIS CENTRAL RAILROAD ) COMPANY, WISCONSIN CENTRAL ) TRANSPORTATION CORPORATION, ) WISCONSIN CENTRAL LIMITED ) ) ) Defendants. ) THIRD AMENDED COMPLAINT NOW COMES Plaintiffs, MELVIN BARNES, TRACEY STEELE, and JEREMY WILLIAMS, both on behalf of themselves and all other black persons similarly situated, by and through their undersigned Counsel of Record, and Complain against Defendants CANADIAN NATIONAL RAILWAY COMPANY, GRAND TRUNK CORPORATION, GRAND TRUNK WESTERN RAILROAD, INC., ILLINOIS CENTRAL CORPORATION, ILLINOIS CENTRAL RAILROAD COMPANY, WISCONSIN CENTRAL TRANSPORTATION CORPORATION, and WISCONSIN CENTRAL LIMITED (collectively referred to herein as the CN Defendants ), and in so doing state as follows:
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 2 of 47 NATURE OF THIS ACTION 1. This action is brought by Melvin Barnes, Tracy Steele and Jeremy Williams (hereinafter Barnes, Steele, and Williams or Plaintiffs ), three African-American employees of CN Defendants. Barnes, Steele, and Williams are three African-Americans who were employees of the Illinois Central Railroad Company, one of the subsidiaries of CN. Barnes, Steele, and Williams bring this action on behalf of themselves and others similarly situated to them against all named CN Defendants. 2. The Plaintiffs seek a declaratory judgment that the CN Defendants have engaged in company-wide systemic racial discrimination throughout Canadian National Railway Company ( CN ) and each and every one of its subsidiaries, including but not limited to, a pattern and practice of intentional discrimination and practices having unlawful disparate impact on their employment opportunities and that such conduct is unlawful under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and the Civil Rights Act of 1866, as amended, 42 U.S.C. 1981 & 1981(A). The Plaintiffs further seek a permanent injunction and other equitable relief necessary to eliminate the effects of the CN Defendants past and present racial discrimination and prevent such discrimination from continuing to adversely affect their lives and careers in the future, including but not limited to, affirmative restructuring of the CN Defendants selection and training procedures, elimination of the hostile work environment in which they have been forced to work, implementation of equitable relief to include declaratory and injunctive relief, reimbursement of expenses incurred in prosecuting this action, and attorneys fees. The Plaintiffs further seek back-pay, other equitable remedies and damages necessary to make them and the members of the class whole. 3. On March 26, 2004, Plaintiff Melvin Barnes was unlawfully terminated by CN
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 3 of 47 Defendants Canadian National Railway Company, Illinois Central Corporation, and Illinois Central Railroad Company, in retaliation for his reporting race discrimination/hostile environment, filing a Charge of Discrimination alleging race discrimination/hostile environment, and filing a federal lawsuit alleging race discrimination/hostile environment, all in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and the Civil Rights Act of 1866, as amended, 42 U.S.C. 1981 & 1981(A). JURISDICTION AND VENUE 4. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1331, 1332, 1343(3) and (4), 1658 and 2201 and 2202. This is a suit authorized and instituted pursuant to the Act of Congress known as The Civil Rights Act of 1964, 42 U.S.C. 2000 et seq., as amended by the Civil Rights Act of 1991" and the Civil Rights Act of 1866, 42 U.S.C. 1981 and 1981(a). 5. Venue is proper in the Northern District of Illinois under 28 U.S.C. 1391(B) & (C) because CN has offices here, maintains personnel records here, and engages in or ratifies illegal conduct here adversely affecting the named Plaintiffs and the members of the proposed class. CONDITIONS PRECEDENT TO FILING SUIT UNDER TITLE VII AND 42 U.S.C. 1981 6. Plaintiff Barnes has fulfilled all conditions precedent to the institution of this action under the Act of Congress known as The Civil Rights Act of 1964, 42 U.S.C. 2000 et seq., as amended by the Civil Rights Act of 1991" and the Civil Rights Act of 1866, 42 U.S.C. 1981 and 1981(a). Barnes filed his charge of discrimination within 300-days of the last 3
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 4 of 47 discriminatory act. (See Ex. A, Barnes EEOC Charge). Barnes then filed this lawsuit within 90- days of receiving his notice of right to sue from the Equal Employment Opportunity Commission. (See Ex. B, Barnes Notice of Right to Sue). Barnes claims arising under 42 U.S.C. 1981 do not require administrative exhaustion and are subject to 28 U.S.C. 1658's four year statute of limitations. 7. Plaintiff Barnes timely filed a second Charge of Discrimination alleging unlawful race discrimination, hostile environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and the Civil Rights Act of 1866, as amended, 42 U.S.C. 1981 & 1981(A). (See Ex.C, Barnes Second EEOC Charge). Barnes then filed this Second Amended Complaint adding a claim for retaliation within 90-days of receiving his notice of right to sue from the EEOC. (See Ex. D, Barnes Second Notice of Right to Sue). Barnes claims arising under 42 U.S.C. 1981 do not require administrative exhaustion and are subject to 28 U.S.C. 1658's four year statute of limitations. 8. Plaintiff Steele has fulfilled all conditions precedent to the institution of this action under the Act of Congress known as The Civil Rights Act of 1964, 42 U.S.C. 2000 et seq., as amended by the Civil Rights Act of 1991" and the Civil Rights Act of 1866, 42 U.S.C. 1981 and 1981(a). Steele filed his charge of discrimination within 300-days of the last discriminatory act. (See Ex. E, Steele EEOC Charge). Steele then filed this lawsuit within 90- days of receiving his notice of right to sue from the Equal Employment Opportunity Commission. (See Ex. F, Steele Notice of Right to Sue). Steele s claims arising under 42 U.S.C. 1981 do not require administrative exhaustion and are subject to 28 U.S.C. 1658's four year statute of limitations. 4
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 5 of 47 9. Plaintiff Williams has fulfilled all conditions precedent to the institution of this action under the Act of Congress known as The Civil Rights Act of 1964, 42 U.S.C. 2000 et seq., as amended by the Civil Rights Act of 1991, and the Civil Rights Act of 1866, 42 U.S.C. 1981 and 1981(a). Williams filed his charge of discrimination within 300-days of the last discriminatory act. (See Ex. G, Williams EEOC Charge). Williams received his notice of right to sue from the Equal Employment Opportunity Commission on or about September 20, 2004, after this suit had been filed on February 18, 2004. (See Ex. H, Williams Notice of Right to Sue). Williams claims arising under 42 U.S.C. 1981 do not require administrative exhaustion and are subject to 28 U.S.C. 1658's four year statute of limitations. PARTIES A. Plaintiffs 10. Plaintiff Barnes is an African-American citizen of the United States and a resident of Cook County, Illinois. Barnes was initially employed by Illinois Central Railroad Company ( ICRR ), a subsidiary of CN, in 1970. He remained employed by ICRR as a Carman until March 2004. At all times material to this action, Barnes has been employed at the ICRR s facility in Markham, Illinois. 11. Steele is an African-American citizen of the United States and a resident of Cook County Illinois. Steel has worked for CN Defendants from 1997 to the present. Steele is currently employed as a Carman. At all times material to this action, Steele has been employed at the CN Defendants facility in Chicago, Illinois. 12. Williams is an African-American citizen of the United States and a resident of Cook County Illinois. Williams has worked for CN Defendants from 1997 to the present. 5
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 6 of 47 Williams is currently employed as a Journeyman in the Skilled Trades. At all times material to this action, Williams has been employed at the CN Defendants facility in Chicago, Illinois. B. Defendants 13. Canadian National Railway Company ( CN ) is a corporation that is organized under the laws of Canada. CN s registered and head office is located at 935 de La Gauchetiere Street West, Montreal Quebec, H3B 2M9, Canada. CN operates in Canada and the United States, with U.S. hubs in Buffalo, NY; Detroit, MI; Duluth, MN; Minneapolis/St. Paul, MN; Chicago, IL; St. Louis, MO; Jackson, MS; Memphis, TN; New Orleans, LA; Baton Rouge, LA; and Mobile, AL. CN is also registered with the Securities and Exchange Commission and is a publicly traded company on the New York Stock Exchange, symbol CNI. CN s agent, for purposes of the SEC, is located in New York, New York. CN has several subsidiary entities that are incorporated in the United States, which include 1) Grand Trunk Corporation; 2) Grand Trunk Western Railroad Incorporated; 3) Illinois Central Corporation; 4) Illinois Central Railroad Company; 5) Wisconsin Central Transportation Corporation; and 6) Wisconsin Central Limited. CN is authorized to do business in the Northern District of Illinois, Eastern Division, and at all times material to this action, has engaged in an industry affecting interstate commerce. The CN Defendant is an entity subject to suit under Title VII of the "Civil Rights Act of 1964," as amended, 42 U.S.C. Section 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. Section 1981. At all times material to this action, the CN Defendant has employed fifteen (15) or more employees for each working day of twenty (20) or more calendar weeks and is an employer within the meaning of Title VII. 6
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 7 of 47 14. Grand Trunk Corporation ( GTC ) is incorporated under the laws of the State of Delaware. GTC is a subsidiary of Canadian National Railway Company. 15. Grand Trunk Western Railroad Company ( GTW ) is incorporated under the laws of the State of Delaware. GTW is a subsidiary of Canadian National Railway Company. 16. Illinois Central Corporation ( ICC ) is incorporated under the laws of the State of Delaware. ICC is a subsidiary of Canadian National Railway Company. 17. Illinois Central Railroad Company ( ICRR ) is incorporated under the laws of the State of Illinois. ICRR is a subsidiary of Canadian National Railway Company. 18. Wisconsin Central Transportation Corporation ( WCT ) is incorporated under the laws of the State of Delaware. WCT is a subsidiary of Canadian National Railway Company. 19. Wisconsin Central Limited ( WCL ) is incorporated under the laws of the State of Illinois. WCL is a subsidiary of Canadian National Railway Company. CLASS ALLEGATIONS A. CLASS DEFINITION 20. The named Plaintiffs bring this suit on behalf of themselves and other similarly situated African-American employees of CN Defendants. The named Plaintiffs are members of the class they seek to represent. That class consists of current, former, and future African- American employees of CN Defendants who, from approximately February 18, 2000 to the present, have been subjected to one or more aspects of the racial discrimination described in this Complaint. B. COMMON QUESTIONS OF LAW AND FACT 7
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 8 of 47 21. The prosecution of the claims of the named Plaintiffs will require adjudication of questions common to the putative class, such as whether the CN Defendants have engaged in systemic racial discrimination including, a pattern and practice of intentional discrimination and practices having unlawful disparate impact in its selection procedures with regards to promotions, training, hostile work environment and other terms and conditions of employment in a manner made unlawful by the statutes under which this action is brought. The claims of the named Plaintiffs are embedded in common questions of law and fact because the CN Defendants have: (1) prevented them from learning about or competing for supervisory and/or managerial positions traditionally held by white employees; (2) precluded or delayed their selection for such jobs; (3) channeled and segregated them into jobs traditionally held by African-Americans; (4) denied them training that would have prepared them for these higher and better paying supervisory/managerial positions; and (5) required them to work in a hostile work environment. 22. The CN Defendants procedures challenged herein, as well as the other systemic Policies and practices that make up these procedures, are determined at the corporate level of the CN Defendants operations and do not vary significantly from one geographical location to another. The employment policies, practices and procedures challenged in this Complaint are not unique or limited to one geographical area, but rather affect the named Plaintiffs and the members of the proposed class in the same way throughout the CN Defendants operations. C. TYPICALITY OF CLAIMS AND RELIEF SOUGHT 23. The systemic racial discrimination challenged in this Complaint has affected, and continues to affect, both the named Plaintiffs and the class they seek to represent in the same way as they have been forced to work in a hostile work environment and have been denied 8
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 9 of 47 promotions to supervisory and/or managerial positions, training, and other benefits which has, and continues, to affect their compensation. Moreover, the CN Defendants discriminatory selection policies, practices and procedures have deprived, and continues to deprive, African- American employees of the opportunity to be supervised and work with people of their own race who would have been supervisors in the absence of such discrimination. 24. The CN Defendants have failed to create adequate incentives for its managerial/supervisory workforce to comply with equal employment opportunity laws regarding each of the policies, practices and procedures described in this Complaint and has failed to discipline adequately its managers and other supervisory employees for violation of these laws. 25. The claims of the named Plaintiffs and the relief necessary to remedy the claims of the named Plaintiffs are the same as the claims of the putative class members and the relief necessary to remedy these claims. The named Plaintiffs seek the following relief for their individual claims and the claims of the putative class: (1) a declaratory judgment that the s have engaged in systemic racial discrimination by requiring its African-American employees to work in a hostile work environment, limiting the employment opportunities of African-Americans to lower paying and less desirable positions, and providing them with unequal training opportunities; (2) a permanent injunction against such continuing systemic discrimination; (3) a restructuring of the CN Defendants selection and training procedures so that African-Americans are able to learn about, train for and fairly compete in the future for higher and better paying positions traditionally enjoyed by white employees; (4) a restructuring of the CN Defendants workforce so that African-Americans are assigned to the better and higher paying positions, locations and compensation levels that they would have held in the absence of the CN 9
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 10 of 47 Defendants past racial discrimination; (5) elimination of the hostile working environment; (6) the implementation of a non-discriminatory posting and bidding procedure; and (7) damages, backpay and other equitable remedies necessary to make the named Plaintiffs and putative class members whole from CN Defendants past discrimination. D. NUMEROSITY AND IMPRACTICABILITY OF JOINDER 26. The class that the named Plaintiffs seek to represent is too numerous to make joinder practicable. The proposed class consists of hundreds of former, current, and future African-American employees who either have been, or will be, employed by CN Defendants. E. ADEQUACY OF REPRESENTATION 27. The named Plaintiffs will fairly and adequately protect the interests of the class as reflected in the preceding paragraphs. There are no conflicts of interest between the named Plaintiffs and the members of the proposed class as each would benefit similarly from the imposition of a remedy for the discriminatory employment policies, practices, and procedures challenged in this Complaint. The named Plaintiffs have retained counsel experienced in litigating major class actions in the field of employment discrimination, who are prepared and able to meet the time and fiscal demands of class action litigation of this size and complexity. The combined interests, experience, and resources of the named Plaintiffs and their counsel to litigate competently the individual and class claims of race-based employment discrimination at issue satisfy the adequacy of representation requirement under Fed.R.Civ.P. 23(a)(4). 10
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 11 of 47 F. EFFICIENCY OF CLASS PROSECUTION OF COMMON CLAIMS 28. Certification of a class of similarly-situated African-Americans is the most efficient and economical means of resolving the questions of law and fact that are common to the individual claims of the named Plaintiffs and the proposed class. The individual claims of the named Plaintiffs and those of the putative class require resolution of the common question of whether CN Defendants have engaged in a systemic pattern and practice of racial discrimination and/or practices which have disparate impact against African-Americans. The named Plaintiffs seek for themselves and the putative class remedies to eliminate the adverse effects of such discrimination in their own and the putative class members lives, careers and working conditions to prevent continued racial discrimination in the future. The named Plaintiffs have standing to seek such relief. Without class certification, the same evidence and issues would be subject to re-litigation in a multitude of individual lawsuits with an attendant risk of inconsistent adjudications and conflicting obligations. Certification of the class of African-Americans adversely affected by the common questions of law and fact set forth in this Complaint is the most efficient and judicious means of presenting the evidence and arguments necessary to resolve such questions for the named Plaintiffs, the class and the CN Defendants. The named Plaintiffs' individual and class claims are premised upon the traditional bifurcated method of proof and trial for disparate impact and systemic disparate treatment claims of the type at issue in this Complaint. Such a bifurcated method of proof and trial is the most efficient method of resolving such common issues. G. CERTIFICATION IS SOUGHT PURSUANT TO FED. R. CIV. P. 23(b)(2) 29. The CN Defendants have acted on grounds generally applicable to the named 11
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 12 of 47 Plaintiffs and the proposed class by adopting and following systemic practices and procedures that are racially discriminatory. Racial discrimination is the CN Defendants standard operating procedure rather than a sporadic occurrence. The CN Defendants have refused to act on grounds generally applicable to the class by: (1) refusing to adopt or follow selection procedures for promotions and training which do not systemically discriminate against African-American individuals; and (2) refusing to provide a non-discriminatory work environment and other equal terms and conditions of work to African-American employees. The CN Defendants systemic discrimination and refusal to act on grounds that are not racially discriminatory have made appropriate final injunctive and declaratory relief with respect to the class as a whole. 30. Injunctive and declaratory relief is the predominate relief sought in this case because it is both the accumulation of the proof of the CN Defendants individual and class-wide liability at the end of Stage I of a bifurcated trial and the essential predicate for the named Plaintiffs' and class members' entitlement to monetary and non-monetary remedies at Stage II of such a trial. Declaratory and injunctive relief flows directly and automatically from proof of the common questions of law and fact regarding the existence of systemic racial discrimination against African-American employees. Such relief is the factual and legal predicate for the named Plaintiffs' and the class members' entitlement to monetary and non-monetary remedies for individual losses caused by such systemic discrimination. H. CERTIFICATION IS SOUGHT PURSUANT TO FED. R. CIV. P. 23(b)(3) 31. The common issues of fact and law affecting the claims of the named Plaintiffs and proposed class members, including but not limited to, the common issues identified in paragraphs 1-30 above, predominate over any issues affecting only individual claims. 12
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 13 of 47 32. A class action is superior to other available means for the fair and efficient adjudication of the claims of the named Plaintiffs and members of the proposed class. 33. The cost of proving the CN Defendants systemic of discrimination makes it impracticable for the named Plaintiffs and members of the proposed class to prosecute their claims individually. 34. The named Plaintiffs are unaware of any pending race discrimination class lawsuit brought against the CN Defendants, and the Northern District of Illinois is the most logical forum in which to litigate the claims of the named Plaintiffs and the proposed class in this case. COMMON ALLEGATIONS Melvin Barnes 35. Plaintiff Melvin Barnes has been adversely affected by the systemic racial discrimination challenged in this case with regards to working in a hostile work environment and selection decisions for promotions, training and other terms and conditions of employment. This racial discrimination adversely affected Barnes by requiring him to work in a hostile work environment; by denying him the opportunity to work in an integrated environment in which African-American employees held supervisory/managerial positions; by not being considered for job classifications traditionally held by white employees at CN Defendants; and by being denied training regularly provided to white employees. 36. On February 18, 2004 Plaintiff Melvin Barnes filed this federal class action lawsuit seeking redress for a class of African-American employees of CN Defendants that were 13
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 14 of 47 victims of CN Defendants racial discrimination, retaliation, and hostile environment, including but not limited to, discrimination and retaliation in appointments, selection decisions, job assignments, promotions, training, discipline, testing, compensation benefits, evaluations, service ratings, and other terms and conditions of employment. 37. On March 26, 2004, Plaintiff Melvin Barnes was unlawfully terminated from his employment by ICRR in retaliation for filing his reporting race discrimination/hostile environment, filing a Charge of Discrimination alleging race discrimination/hostile environment, and filing a federal lawsuit alleging race discrimination/hostile environment, all in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and the Civil Rights Act of 1866, as amended, 42 U.S.C. 1981 & 1981(A). 38. There was no legitimate non-discriminatory reason from Plaintiff Melvin Barnes termination from ICRR on March 26, 2004. 39. CN Defendants have continually failed to notify, post or make readily accessible to its African-American employees, job announcements for all positions that might lead to promotions and/or advancement to higher and better paying positions. 40. In mid-2002, Ron Haney, a white employee with less seniority and qualifications than Barnes was given a Relief Foreman position without any notice being given to Barnes or any other African-American employee. Barnes was better qualified than Haney for this position and had he known of its existence, he would have applied for it. Similarly, in September of 2003, Mike Smith, another less senior and less qualified white employee, was given a Foreman s position without notice being given to Barnes or any other African-American employee. Barnes was also better qualified than Smith for this position and had he known of its existence he would 14
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 15 of 47 have applied for it. This second position was located in the ICRR s Champagne/Decatur yards which has very few, if any, African-Americans in supervisory positions. 41. Despite over thirty years of experience, Barnes was not considered for temporary assignments to supervisory positions at ICRR. In September of 2003, Barnes foreman was assigned to train Mike Smith, a white employee, for seven weeks at ICRR s Champagne, Illinois yard. This created a vacant foreman position at ICRR s Markham, Illinois yard, where Barnes worked. The general foreman, who is white, placed Greg Pazour, another white male employee, into the position without posting it for bid. Pazour is less senior and less qualified than Barnes. Notice of this temporary vacancy was not given to Barnes or any other African-American employee of CN Defendants. Had this position been posted, Barnes would have applied for it, as it would have enhanced his experience and added to his qualifications. 42. CN Defendants have additionally denied Barnes and other African-American employees training opportunities regularly afforded to similarly situated white employees. These training opportunities enhance an employee s ability to be considered for positions of greater pay, responsibility and authority. 43. In September of 2003, Tony Switzer, a white supervisor, selected only white employees to attend a training session regarding a new air-brake system. The denial of opportunities to train on all aspects of equipment is detrimental to an employee s prospects for promotion in that an employee must be knowledgeable regarding all equipment in his department to be considered for any supervisory positions that could become available. 44. Barnes has continually experienced racial harassment and/or racial intimidation at ICRR. During the course of his employment he has heard the words nigger, porch monkey 15
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 16 of 47 and other racially demeaning language. Barnes has also witnessed other African-Americans being subjected to racial slurs. 45. As a result of CN Defendants discriminatory practices, Barnes has suffered and will continue to suffer extreme harm. Tracy Steele 46. Plaintiff Tracy Steele has been, and continues to be, adversely affected by the systemic of racial discrimination challenged in this case with regards to working in a hostile work environment and selection decisions for promotions, training and other terms and conditions of employment. This racial discrimination has adversely affected Steele by requiring him to work in a hostile environment; by denying him the opportunity to work in an integrated environment in which African-American employees hold supervisory/managerial positions; by not being considered for job classifications traditionally held by white employees at CN Defendants; and by being denied training regularly provided to white employees. 47. CN Defendants have continually failed to notify, post or make readily accessible to its African-American employees job announcements for all positions that might lead to promotions and/or advancement to higher and better paying positions. 48. In mid-2000, the general foreman of the mechanical department resigned his position and Steele was asked if he was interested in temporarily filling this vacancy. Steele accepted the position and was trained for approximately one-day. Steele performed the duties of this position until he was replaced by Johnny Kovaleski, a white male, who was given the position on a permanent basis. Kovaleski is less senior and less qualified than Steele. Neither Steel nor any other African-American employees were given notice that CN Defendants were 16
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 17 of 47 looking to fill this position on a permanent basis. 49. In mid-2001, Johnny Kovaleski was demoted and, again without notice being given, Tony Switzer, another white employee, was given the general foreman s position. Prior to Switzer receiving this position, Steele had expressed a desire to be made aware of any such vacancies in his department on several occasions. Moreover, when Switzer became general foreman, he immediately awarded the mechanical foreman s position to Billy Baisden, another white employee with less seniority and less qualifications than Steele. 50. Steel complained to management about the abovementioned incidents and was subsequently assigned to another location where he received some foreman s training. In September 2003, Steele was working as a relief foreman, when a foreman s position again became available. The position was not posted. Steele became aware of its existence anyway because he had worked as a relief foreman under the incumbent who was leaving. Steele applied for the position by submitting a resume and speaking with senior management about the position. Steele was informed by senior management that the position would be awarded based on qualifications and not seniority. The position was awarded to Roy Talman, a white employee with no experience as a foreman. Steele was better qualified and had more experience as a foreman than Talman when Talman was awarded this position. In late September or early October 2003, Talman was demoted from foreman because of poor performance. 51. In September of 2003, Tony Switzer, a white supervisor, selected only white employees to attend a training session regarding a new air-brake system. The denial of opportunities to train on all aspects of equipment is detrimental to an employee s prospects for promotion in that an employee must be knowledgeable regarding all equipment in his department 17
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 18 of 47 to be considered for any supervisory positions that could become available. 52. Steele has continually experienced racial harassment and/or racial intimidation while working at CN Defendants. During the course of his employment he has heard the word nigger and other racially demeaning language. Steele has also witnessed other African- Americans being subjected to racial slurs. 53. As a result of CN Defendants discriminatory practices, Steele has suffered and will continue to suffer extreme harm. Jeremy Williams 54. Plaintiff Jeremy Williams has been, and continues to be, adversely affected by the systemic racial discrimination challenged in this case with regards to working in a hostile work environment and selection decisions for promotions, training and other terms and conditions of employment. This racial discrimination adversely affected Williams by requiring him to work in a hostile environment; by denying him the opportunity to work in an integrated environment in which African-American employees hold supervisory/managerial positions; by not being considered for job classifications traditionally held by white employees at CN Defendants; and by being denied training regularly provided to white employees. 55. CN Defendants have continually failed to notify, post or make readily accessible to its African-American employees job announcements for all positions that might lead to promotions and/or advancement to higher and better paying positions. 56. Shortly after gaining employment with CN Defendants, Williams expressed an interest in advancing to higher paying positions of increased responsibility. In August of 2003, Williams learned of a vacant foreman s position within the Mechanical Department and expressed 18
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 19 of 47 an interest in applying for it. Williams inquiry was ignored, as were the inquiries of other African-American employees. The position has since been temporarily filled by an equally or less qualified white employee. 57. CN Defendants have additionally denied Williams and other African-American employees training opportunities regularly afforded to similarly situated white employees. These training opportunities enhance an employee s ability to be considered for positions of greater pay, responsibility and authority. 58. Since September of 2003, Tony Switzer, a white general foreman, has ignored Williams repeated requests for training in the Mechanical Department. Switzer subjectively selects white employees for this training and rarely considers African-American candidates. The denial of an opportunity to train on all aspects of the Mechanical Department is detrimental to any promotion Williams could bid on because in order to be considered for foreman positions and above, one must have a working knowledge of all machinery within the department. 59. Williams has continually experienced racial harassment and/or racial intimidation at CN Defendants. During the course of his employment he has heard racially demeaning language and racial slurs. Williams has also witnessed other African-Americans being subjected to racial slurs. 60. As a result of CN Defendants discriminatory practices, Williams has suffered and will continue to suffer extreme harm. 19
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 20 of 47 COUNT ONE TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. 2000e, et seq. (All Plaintiffs v. All CN Defendants) 61. Plaintiffs restate and incorporate by reference Paragraphs 1 through 60, above as part of this Count of the Complaint. 62. Plaintiffs bring Count One claims against all of the CN Defendants. 63. CN Defendants have discriminated against the named Plaintiffs and the class they seek to represent with regards to a hostile work environment, promotions, training, and other terms and conditions of employment because of their race in violation of Title VII of the Civil Rights Act of 1964, Title 42 U.S.C. 2000e et seq., as amended by the Civil Rights Act of 1991. 64. The named Plaintiffs and putative class they seek to represent have been subjected to systemic racial discrimination, including but not limited to, a pattern and practice of intentional discrimination and practices having unlawful disparate impact on their employment opportunities. The CN Defendants follow a policy and practice of restricting African-Americans employment opportunities to the lower positions and compensation levels. CN Defendants deny African- Americans comparable training provided to white employees and channels African-Americans away from management and other traditionally white positions and compensation levels. The systemic means of accomplishing such racial discrimination include, but are not limited to, the CN Defendants selection and training and policies, practices and procedures. 65. The CN Defendants selection and training procedures incorporate the following racially discriminatory policies and practices: (a) reliance upon subjective procedures and criteria 20
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 21 of 47 which permit and encourage the incorporation of racial stereotypes and bias of the CN Defendants predominantly white managerial staff; (b) refusal to establish or follow policies, practices, procedures, or criteria that reduce or eliminate disparate impact and/or intentional racial bias or stereotypes in the CN Defendants decision-making processes; (c) refusal to consistently post or announce vacancies or employment opportunities in a manner which allows African- Americans to learn about such opportunities and compete for them before they are filled by white employees or applicants; (d) use of an informal selection process that does not rely upon formal applications or other safeguards which open the process to competition by African-Americans; (e) pre-selection of white individuals before vacancies or opportunities become known; (f) the use of subjective devices in the selection and training processes which have a disparate impact and/or intentional racial bias against African-American employees; (g) the use of selection and training policies, practices and procedures which have a chilling effect on the expressions of interest by African-Americans; (h) the use of subjective selection processes for determining which employees are to receive training; and (i) the use of subjective selection processes for determining the compensation to be paid to its employees. 66. The CN Defendants selection and training policies, practices and procedures, intentional discrimination, and/or have a disparate impact against the named Plaintiffs and the class they seek to represent. Such policies, practices and procedures are not valid, job related or justified by business necessity. There are objective and structured selection and training procedures available to the CN Defendants which would have less disparate impact on African- Americans and equal or greater validity and job relatedness, but the CN Defendants have refused to consider or to use such policies, practices, or procedures. 21
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 22 of 47 67. The Plaintiffs and the class they seek to represent have been directly affected by the discriminatory policies, practices and procedures set forth above by, among other things, being deprived of the opportunity to work in an environment free of racial discrimination and to be supervised by and work with persons of their own race who would have been selected in the absence of racial discrimination. Such discrimination also denies the Plaintiffs and the class they seek to represent the opportunity of working in a fully, racially integrated work environment and otherwise adversely affects their opportunity for enjoyment of work as compared with white employees who do not have to work in situations in which members of their race are victims of racial discrimination. 68. The systemic discrimination set forth herein further adversely affects the named Plaintiffs and the class members status as employees by promoting and reinforcing racial stereotypes and bias in selection, training and other terms and condition of employment. In the absence of such racial discrimination, the Plaintiffs and the class they seek to represent would have had a greater opportunity of supervising and being supervised by persons of their same race and having persons of their same race integrated into the decision-making processes as they relate to selection and training and other terms and conditions of employment. By having members of their own race integrated into such processes, their employment opportunities in all of the foregoing respects would have been significantly improved and they would have been less likely to have been subjected to racial bias in such decisions. 69. The named Plaintiffs and the class they seek to represent are attempting to redress the wrongs alleged in this suit through equitable relief, including backpay and other equitable remedies. An equitable judgment is the only means of securing adequate relief for the named 22
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 23 of 47 Plaintiffs and the class they seek to represent. The Plaintiffs and the class they seek to represent are now suffering and will continue to suffer irreparable injury from the CN Defendants unlawful policies, practices and procedures as set forth herein unless enjoined by this Court. 70. By reason of CN Defendants discriminatory employment practices, the named Plaintiffs and the class they seek to represent have experienced extreme harm, including loss of compensation, wages, back and front pay, damages and other employment benefits, and as such, are entitled to all legal and equitable remedies available under Title VII of the Civil Rights Act of 1964. 71. CN Defendants engaged in the conduct complained of herein with malice or reckless indifference to the federally protected rights of the Plaintiffs and the class they seek to represent. COUNT TWO DISCRIMINATION ON THE BASIS OF RACE IN VIOLATION OF THE CIVIL RIGHTS ACT OF 1866, 42 U.S.C. 1981 (All Plaintiffs v. All CN Defendants) 72. Plaintiffs restate and incorporate by reference Paragraphs 1 through 71, above as part of this Count of the Complaint. 73. Plaintiffs bring Count Two claims against all of the CN Defendants. 74. CN Defendants have discriminated against the named Plaintiffs and the class they seek to represent with regards to a hostile work environment, promotions, training, and other terms and conditions of employment because of their race in violation of the Civil Rights Act of 1866, 42 U.S.C. 1981 and 1981(a). 75. CN Defendants conduct has been intentional, deliberate, willful and conducted 23
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 24 of 47 with disregard of the rights of the Plaintiffs and members of the proposed class. 76. By reason of CN Defendants pattern and practice of discriminating employment practices, the named Plaintiffs and the proposed class members have experienced extreme harm, including loss of compensation, wages, back and front pay, damages and other employment benefits, and as such, are entitled to all legal and equitable remedies available under the Civil Rights Act of 1866. COUNT THREE UNLAWFUL RETALIATION AND TERMINATION IN VIOLATION OF THE CIVIL RIGHTS ACT OF 1866, 42 U.S.C. 1981 and TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, as amended, 42 U.S.C. 2000e et seq. (Plaintiff Melvin Barnes, on behalf of himself, v. Defendants Canadian National Railway Company, Illinois Central Corporation, and Illinois Central Railroad Company) 77. Plaintiffs restate and incorporate by reference Paragraphs 1 through 76 above as part of this Count of the Complaint. 78. This Count is brought by Melvin Barnes in his individual capacity against Defendants Canadian National Railway Company, Illinois Central Corporation, and Illinois Central Railroad Company. 79. These Defendants unlawfully retaliated against and terminated Plaintiff Melvin Barnes for complaining about race discrimination/ hostile environment, filing a Charge of Discrimination with the EEOC alleging race discrimination/hostile environment and for filing a federal lawsuit on February 18, 2004 alleging race discrimination/hostile environment all in violation of the Civil Rights Act of 1866, 42 U.S.C. 1981 and 1981(a) and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. 80. Immediately following his complaints of race discrimination, filing of a Charge 24
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 25 of 47 of Discrimination with the EEOC, and the filing of the federal class action lawsuit against Defendants on February 18, 2004, Defendants began egregious retaliation against Plaintiff Melvin Barnes, including but not limited to, excessive job scrutiny and unlawful termination on March 26, 2004. 81. There was no legitimate non-discriminatory basis for the March 26, 2004 termination of Plaintiff Melvin Barnes from his employment at Defendants. 82. In filing the federal class action lawsuit on February 18, 2004, Plaintiff Melvin Barnes was exercising his right to complain about unlawful race discrimination. 83. Defendants conduct was intentional, deliberate, willful and conducted with disregard of the rights of the Plaintiff Melvin Barnes. 84. Plaintiff Melvin Barnes has experienced extreme harm, including loss of compensation, wages, back and front pay, damages and other employment benefits as a direct and proximate cause of Defendants unlawful retaliation/discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and the Civil Rights Act of 1866, as amended, 42 U.S.C. 1981 & 1981(A). PRAYER FOR RELIEF WHEREFORE, the named Plaintiffs, on behalf of themselves and the proposed class they seek to represent, request the following relief: 1. Acceptance of jurisdiction of this cause; 2. Certification of the case as a class action maintainable under Federal Rules of Civil Procedure Rule 23(a), 23(b)(2) and/or 23(b)(3) on behalf of the proposed Plaintiff class, and 25
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 26 of 47 designation of the named Plaintiffs as representatives of the proposed class and their counsel of record as class counsel; 3. A declaratory judgment that the employment practices challenged herein are illegal and violative of the rights secured to named Plaintiffs and members of the proposed class; 4. A preliminary and permanent injunction against the Defendants and their partners, officers, owners, agents, successors, employees, representatives and any and all persons acting in concert with it, from engaging in any further unlawful practices, policies, customs, usages, and racial discrimination as set forth herein; 5. An Order requiring the Defendants to initiate and implement programs that: (i) provide equal employment opportunities and a non-hostile work environment for African- American employees; (ii) remedy the effects of the Defendants past and present unlawful employment practices; and (iii) eliminate the continuing effects of the discriminatory practices described herein above; 6. An Order requiring the Defendants to initiate and implement systems for the posting and bidding of jobs and for the assigning, training, transferring, and promoting of African American employees to higher and better paying positions in a non-discriminatory manner; 7. An Order placing or restoring the named Plaintiffs and the class they seek to represent into those jobs they should now be occupying but for the Defendants discriminatory practices; 8. An Order directing the Defendants to adjust the wage rates and benefits for the named Plaintiffs and the class they seek to represent to the level that they should be enjoying but for the Defendants discriminatory practices; 26
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 27 of 47 9. An award of back pay; front pay; lost benefits; preferential rights to jobs; damages for lost compensation and job benefits suffered by the named Plaintiffs and the class they seek to represent; 10. An Order requiring the Defendants to make the named Plaintiffs and the class they seek to represent, whole by awarding them back pay (plus interest), compensatory, punitive, liquidated, and/or nominal damages; 11. An award of litigation costs and expenses, including reasonable attorneys fees, to the named Plaintiffs and proposed class members; 12. Prejudgment interest; and 13. Such other and further relief as the Court may deem just and proper. /s/ Robert M. Foote Robert Foote, Esq. #03214325 Stephen W. Fung Foote Meyers Meilke & Flowers, LLC 28 North First St. Suite 2 Geneva, IL 60134 630-232-6333 Kathleen C. Chavez, Esq. #6255735 Chavez Law Firm, P.C. 28 North First St. Suite 2 Geneva, IL 60134 630-232-4480 27 William E. Ready Ready & Associates P.O. Box 827 517 23rd Ave. Meridian, MS 39302-0827 (601) 693-8678 (601) 693-1485 FAX
Case 1:04-cv-01249 Document 49 Filed 06/08/2007 Page 28 of 47 Robert F. Childs Roderick T. Cooks Ben Degweck Attorneys for the Plaintiffs Wiggins, Childs, Quinn & Pantazis The Kress Building 301 Nineteenth Street North Birmingham, AL 35203 (205) 328-0640 (205) 254-1500 FAX Peter L. Currie 06281711 The Law Firm of Peter L. Currie, PC 536 Wing Lane Saint Charles, IL 60174 630-862-1130 28
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