Cargo et al v. Kansas City Southern Railway Co

Filing 668

MEMORANDUM RULING re 621 MOTION for Summary Judgment on Plaintiff, Leon Sterling's Claims filed by Kansas City Southern Railway Co. Signed by Judge S Maurice Hicks on 9/2/2011. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

CLARENCE CARGO, ET AL.,

CIVIL ACTION NO. 05-2010

VERSUS

JUDGE S. MAURICE HICKS, JR.

KANSAS CITY SOUTHERN
RAILWAY COMPANY

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Before the Court is a Motion for Summary Judgment on Plaintiff Leon Sterling’s
various discrimination claims (Record Document 621) filed by Defendant Kansas City
Southern Railway Company (“KCS”). The motion conveys reasons for the Defendant
seeking dismissal of all claims raised by Sterling. (Record Document 621). Sterling, in
opposition to Defendants Motion for Summary Judgment, responds stating “Plaintiff’s claim
boils down to a hostile work environment claim.” (Record Document 629 at 1). Given this
response, the Court will treat all claims, save the hostile work environment claim, as
abandoned. For the reasons that follow, Defendant’s Motion for Summary Judgment is
GRANTED. Accordingly, all of Sterling’s claims of are DISMISSED.

FACTUAL BACKGROUND
Leon Sterling is an African American male. (Record Document 621-2 at 1). Sterling
began employment at KCS in 1970 in the Mechanical Department. (Record Document
621-2 at 2). In 1977 Sterling, by request, was transferred to KCS’s Transportation
Department and began working as a brakeman in New Orleans. (Record Document 621-2
at 3). In 1983, Sterling was promoted to Conductor. (Record Document 621-2 at 5). Sterling

retired from KCS with full benefits on August 31, 2005, amounting to a nearly thirty-five
year career with KCS. (Record Document 621-2 at 24).
Reviewing Sterling’s opposition to Defendant’s Motion for Summary Judgment,
Sterling alleges/adopts various facts that support his abandoned claims. Sterling adopts
facts relating to owed back pay, age discrimination, and a disparate impact claim. (Record
Document 629-1). As all claims except for the hostile work environment claim are
abandoned, the Court will only address the factual circumstances that the parties
addressed in relation to the hostile work environment claim.
In a review of the record, the Court can pinpoint six instances alleged by Sterling
that, together, led to a hostile work environment for Sterling. The first few instances involve
the actions of Jimmy Love. It is not clear from the record what Jimmy Love’s position at
KCS was, but according to Sterling, he had “supervision of Plaintiff.” (Record Document
629-1 at 7). The first of Love’s actions is that in conversation with an African American coworker of Sterling, Love is said to have referred to the co-worker as “you people.” (Record
Document 621-2 at 36). Further, in reference to Sterling and three other African American
employees of KCS, Love at one point told them “to get the F out of here.” (Record
Document 629-2 at 5-6).1 Finally, Love is said to have assigned Sterling and two Caucasian
employees additional work with the promise of extra pay. The third allegation made by
Sterling that the two Caucasian employees were compensated while Sterling was not.
(Record Document 629-1 at 8). The fourth instance Sterling alleges is that KCS employee
A.J. Sonnier was angry with Sterling at some point during his employment and told him “if

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When asked the race of one of three that were with Sterling, Sterling responded
“African American...All of us were -- are”(Record Document 629-2 at 5-6).
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you think I am going to apologize to your black ass; I’m not.” (Record Document 621-2 at
36). The fifth allegation is that Sterling overheard Paul Seghers, a KCS employee, state in
a telephone conversation “those black MFs.” The sixth and final allegation consists of
Sterling summarizing his employment at KCS: “Throughout Mr. Sterling’s career, he heard
and saw discrimination against other African-American trainmen. For example, if Caucasian
trainmen were late for work, they ‘received slack,’ but if African-Americans were late for
work, an investigation was called and they were given discipline.”
Following his resignation, Sterling filed the above-captioned matter alleging various
claims against KCS. (Record Document 1). Subsequently, after preliminary motion practice,
the Plaintiffs were broken into 29 trial groups. (Record Document 492). The pairing was
based on the Plaintiffs’ respective claims. Sterling was placed in group 3 with Clarence
Cargo and Harry Parker as they all worked as conductors on the Train Crew in New
Orleans. (Record Document 492).

SUMMARY JUDGMENT STANDARD
Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil
Procedure when “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”2 Quality Infusion Care, Inc. v. Health Care Serv.
Corp., 628 F.3d 725, 728 (5th Cir. 2010). “A genuine issue of material fact exists when the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” See

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The Court notes that the newly amended Rule 56 requires that there be “no genuine
dispute as to any material fact,” but this change does not alter the Court’s analysis.
F.R.C.P. 56(a) and advisory committee’s note (emphasis added).
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Id. “Rule 56[(a)] mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and on which that party
will bear the burden of proof at trial.” Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir.2004).
If the movant demonstrates the absence of a genuine dispute of material fact, “the
nonmovant must go beyond the pleadings and designate specific facts showing that there
is a genuine issue for trial.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th
Cir.2004). Where critical evidence is so weak or tenuous on an essential fact that it could
not support a judgment in favor of the nonmovant, then summary judgment should be
granted. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005).

LAW AND ANALYSIS
Hostile Work Environment
A hostile work environment exists “when the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working
environment.” Stewart v. Mississippi Transport Commission, 586 F.3d 321 (5th Cir. 2009)
(quoting National R.R. Passenger Corp. V. Morgan, 536 U.S. 101 (2002)). To establish his
claim for a hostile work environment, Plaintiff must show that:
1) he belongs to a protected class; 2) he was subjected to
unwelcome harassment; 3) the harassment was based on
race; 4) the harassment affected a term, condition or privilege
of employment; and 5) the employer knew or should have
known of the harassment and failed to take remedial action.

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Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir. 2005). The alleged discrimination
must have “created an environment that a reasonable person would find hostile or abusive.”
Id. Courts in this Circuit determine hostile environment considering the totality of the
circumstances. Factors to consider include: “the frequency of the conduct, its severity, the
degree to which the conduct is physically threatening or humiliating, and the degree to
which the conduct unreasonably interferes with an employee's work performance.” Id .; see
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
Although “[d]iscriminatory verbal intimidation, ridicule, and insults may be sufficiently
severe or pervasive” to support evidence of a Title VII violation, DeAngelis v. El Paso Mun.
Police Officers Ass'n, 51 F.3d 591, 593 (5th Cir.1995), “simple teasing, offhand comments,
and isolated incidents, (unless extremely serious) will not amount to discriminatory charges”
that can survive summary judgment. Hockman v. Westward Communications, LLC, 407
F.3d 317, 328 (5th Cir.2004). A plaintiff's own subjective beliefs, however genuine, cannot
form the basis of judicial relief. Nichols v. Lewis Grocer, 138 F.3d 563 (5th Cir.1998); Little
v. Republic Refining Co., 924 F.2d 93, 95 (5th Cir.1991).
The jurisprudence of this Circuit establishes a very high burden for a plaintiff
advancing a claim for a hostile work environment on racial grounds. From this Court’s
review of the total record, Sterling has failed to meet that burden.
To begin, Defendant raises various issues in its reply to Plaintiff’s opposition
regarding Plaintiff’s failure to properly cite facts in the record and controvert the vast
majority of Defendant’s statement of material facts. While Defendant’s contentions appear
to have merit, the Court is not required to reach a conclusion on these allegations as
Sterling cannot survive summary judgment on the merits.
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The encounters listed by Sterling with KCS in general as well as Love, Sonnier,
Seghers specifically must be able to allow a reasonable juror to conclude that KCS is
“permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe
or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Stewart v. Mississippi Transport Commission, 586 F.3d 321 (5th Cir.
2009). When viewing the proper summary judgment evidence in the record, Sterling simply
is not able to meet this high burden.
As stated supra, Sterling’s allegations boil down to six specific but separate
instances. Three of these allegations are of no aid to Sterling’s claim. For instance, Sterling
has made no showing that Love’s command to three African American employees to “get
the ‘F’ out of here” had any racial animus, which is a prong in a hostile work environment
claim. Addressing KCS’s alleged payment of funds to two similarly situated white
employees but not Sterling, Sterling evidences this allegation by citing a portion of his
deposition where he was shown his response to a formal written interrogatory that alleged
this encounter. However, in the deposition, Sterling merely identified the document with an
“okay” without going into further detail. (Record Document 629-1 at 7; Record document
621-4 at 67). Sterling did not attach this interrogatory to his opposition for summary
judgment. Therefore, the interrogatory is not properly before the Court and the deposition
testimony cited to by Sterling is not helpful in determining the specifics of this allegation.
In contrast, Defendant’s Motion for Summary Judgment shows that there were separate
occasions where Sterling worked extra duties, notified the company of this extra work, and
the company compensated him. (Record Document 621-2 at 28). Even analyzing this
allegation as stated in Sterling’s opposition to summary judgment, the record is simply void
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of enough context or proper summary judgment evidence to allow a reasonable juror to
assume a racial animus in this particular instance.
The third allegation that is of no aid to Sterling is that his broad assertion African
Americans were treated unfairly throughout Sterling’s career. (Record Document 629-1 at
8). The most specific instance Sterling offers to support this assertion is a vague allegation
that if a Caucasian were late for work, he or she would receive “more slack” than an African
American would. See Id. This broad assertion is not sufficient to create a genuine dispute
of material fact that a hostile work environment existed. This is especially true considering
that, when asked about these occurrences, Sterling could only vaguely offer one incident
over his thirty-five year career. This apparently occurred sometime in the 1990s when a
Caucasian engineer was late and did not get suspended. Sterling admits that he knew little
of this incident and further admits that he too had been late at times without receiving any
suspension. (Record Document 621-2 at 33). The Court is not persuaded that this
allegation shows any racial discrimination. The record shows that both Sterling and fellow
Caucasian employees arrived at work late at times without receiving a suspension.
This leaves the comment made by Seghers on the telephone referring to an
unknown group of people as “black MFs” and the comment made by Sonnier referring to
Sterling as a “black ass.” These two statements appear to be racially driven instances of
unwelcome harassment. Finally is Love’s use of the phrase “you people.” The context of
this phrase is unclear. Thus it is difficult to determine the existence of racial animus here.
In reviewing the record, it appears only Sterling’s and Seghers’s comments, as well as

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Love’s use of “you people,” are the only encounters that can be remotely construed as
conveying a racial animus.3
The Fifth Circuit dealt with a similar case in Fortenberry v. Texas. 75 Fed. Appx. 924,
928 (5th Cir. 2003). In this case an African American employee had to endure two racial
slurs. She also cited an instance where a co-worker referred to a African American client
as a “dishwater blonde.” See Id at 928. Finally the plaintiff stated she was the victim of
unwelcome and intimidating stares from a co-worker’s husband. The Court held that “it is
not clear that either one of these two [latter] incidences were racially motivated.” See Id.
Further the court held two racial slurs, two years apart, were not enough to show a hostile
work environment. See Id.
As in Fortenberry, Sterling has put forth no evidence that at least three of the alleged
six instances were instances of racial discrimination at all. This leaves the Court with
perhaps three separate comments that, reading the record in a light most favorable to
Sterling, could be considered racially driven. Since two direct racial slurs spread over a two
year period were not enough to create a hostile work environment in Fortenberry, clearly
KCS employees use of “black MFs,” “black ass,” and “you people,” once each, over a thirtyfive year career cannot lead this Court to conclude that KCS embodied a hostile work

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The Court struggles to state that Love’s use of “you people” has racial animus in
this instance. In a similar case, the Supreme Court analyzed the use of the word “boy” by
itself, stating that “[t]he speaker's meaning may depend on various factors including
context, inflection, tone of voice, local custom, and historical usage.” Ash v. Tyson Foods,
Inc., 546 U.S. 454, 456 (2006). Sterling has offered no evidence regarding any of these
factors and therefore this instance of discrimination Sterling points to does not carry much
weight in the eyes of the Court.
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environment. While these three terms may be considered offensive, they are not sufficient
to create a hostile work environment.
In order for this hostile work environment claim to have merit, Sterling must also
allege that racial discrimination altered a condition of his employment. It has been held that
“mere utterance of an... epithet which engenders offensive feelings in an employee does
not sufficiently affect the conditions of employment.” Shepard v. Comptroller of Public
Accounts of State of Texas, 168 F.3d 871 (5th Cir. 1999) (quoting Harris v. Forklift
Systems, Inc., 510 U.S. 17.21 (1993). The closest Sterling has come to showing an altered
working condition is through the poorly (if at all) evidenced lack of payment to Sterling for
the additional work he performed. Otherwise, Sterling’s opposition to summary judgment
is void of a single fact of how this discrimination altered his working conditions. Since these
offensive comments alone are not enough to prove an altered work environment, without
any proper and sufficient summary judgment evidence as to how these events affected a
term or condition of his employment, Sterling’s hostile work environment claim must fail.
Due to the lack of evidence by Sterling of the severity or pervasiveness of racial
discrimination at KCS and the inability of Sterling to prove an impact on any terms or
conditions of his employment at KCS, KCS is entitled to a judgment as a matter of law.

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CONCLUSION
Based on the foregoing analysis, the Court finds that Plaintiff Leon Sterling
abandoned all but his hostile work environment claim. Additionally, Sterling has failed to
provide sufficient evidence to raise a dispute of material fact that Sterling indeed endured
a hostile work environment.
Accordingly, IT IS ORDERED THAT the foregoing motion [Record Document 621]
be and is hereby GRANTED. All of Plaintiff’s claims are DISMISSED WITH PREJUDICE.
A Judgment consistent with the terms of the instant Memorandum Ruling shall issue
herewith.
Thus done and signed, in Shreveport, Louisiana, this 1st day of September, 2011.

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