Cargo et al v. Kansas City Southern Railway Co

Filing 682

MEMORANDUM RULING re 674 MOTION for Summary Judgment on Plaintiff Eric Allums' Claims filed by Kansas City Southern Railway Co. Signed by Judge S Maurice Hicks on 10/26/2011. (crt,Keifer, K)

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 Eric Allums’ various
employment discrimination claims (Record Document 674) filed by Defendant Kansas City
Southern Railway Company (“KCS”). The motion conveys reasons for the Defendant
seeking dismissal of all claims raised by Allums. Allums, in opposition to Defendants Motion
for Summary Judgment, responds stating “Plaintiff’s claim boils down to a hostile work
environment claim.” (Record Document 679-1 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
Allums’ claims of are DISMISSED.
FACTUAL BACKGROUND1

1

In an attempt to determine the specific factual allegations raised by Allums, this
Court has struggled to decipher exactly what Allums claims to have occurred during his
employment at KCS. In his response to KCS’ summary judgment, Allums submitted to this
Court a seven page brief. (Record Document 679-1) Of these seven pages, Allums
provides this Court with one half of a page of factual allegations. (Record Document 679-1
at 4). In this half of a page, Allums has merely referenced the elements of a hostile work
environment claim and pointed the Court to the two parties’ statements of material fact. See
id. In reviewing the Plaintiff’s Statement of Material Facts, Allums has only responded to
the claims made by KCS in their statement of material facts. (Record Document 679-2).
Therefore, when Allums directs this Court to its statement of material facts, this is no more

Eric Allums is an African American male. (Record Document 647-2 at 1). Allums
began employment at KCS in May of 1994. (Record Document 647-2 at 2). In 1998,
Allums was promoted to the position of engineer. (Record Document 647-2 at 3). In 2005,
Allums retired due to an off-duty car accident that rendered him disabled. (Record
Document 674-1 at 8).
KCS has provided this Court seven separate instances that Allums feels constitutes
a hostile work environment. Those seven separate instances are not in dispute and are as
follows:
1.
2.
3.

4.
5.
6.
7.

On one occasion, an employee wore a Confederate Flag shirt to work.
A co-worker of Allums once said “black boy” over the radio.
In 2000, Allums was threatened with termination because he was
turning out like two employees, one of whom was white. This was
because Allums supervisor felt Allums “was missing too much time
away from work.”
In 2004, A.J. Sonnier (“Sonnier”) once stated to a group of African
American and Caucasian employees, “I have a problem with y’all.”
Sonnier “would fraternize more with the Caucasian employees.”
In 1995, Sonnier “chewed [Allums] out” for poor work performance.
Caucasian employees made “juvenile” comments to another African
American employee over the radio. The language used was
“Buckwheat or something to that effect.”

(Record Document 647-2 at 33-35).
Following his resignation, Allums joined 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. Allums was placed in group 4 with Cory Walker

than an indirect citation to KCS’ statement of material facts. This being the case, the Court
is left with only KCS’ side of the material facts and simple denials made, by Allums. Still,
the Court has made every attempt possible to determine what Allums’ view of the facts
raised by KCS are, even though Allums has failed to directly provide them to the Court.
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as they both worked as engineers on the Train Crew in Shreveport. (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
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).

2

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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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.

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”
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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, Allums has failed to meet that burden.
To begin, KCS raises various issues in its reply to Allums’ opposition regarding his
failure to properly cite facts in the record and controvert the vast majority of KCS’ statement
of material facts. (Record Document 680). While KCS’ contentions appear to have merit,
the Court is not required to reach a conclusion on the accuracy of these allegations as
Allums’ cannot survive summary judgment on the merits.
In order to survive summary judgment, Allums must be able to show the
aforementioned seven instances listed by KCS 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).
An element that aids the Court’s analysis of the aforementioned seven separate
instances KCS provided is that any perceived harassment must be based on race.
Therefore, any of those seven instances that are not based on race cannot be used to
determine if KCS harbored a hostile work environment. Of the seven instances, three can
be eliminated from discussion as there is no racial animus to them. The first occurred in
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2000, when Allums was threatened with termination. It is undisputed that the motivation
behind these threats was that Allums’ supervisor felt Allums was “missing too much time
away from work.” (Record Document 647-2 at 34; 679-2 at 8). Since Allums does not
dispute that this threat was made because of the amount of time Allums spent at work, it
is clear that this alleged instance of harassment was not based on race. The second
instance that can be ruled out of consideration for this claim is Sonnier saying “I have a
problem with y’all” to a group of African American and Caucasian employees. Allums does
not dispute that Sonnier made this statement to both African American and Caucasian
employees. (Record Document 679-2 at 8). Therefore, Allums has not demonstrated any
evidence to allow a reasonable juror to find this alleged harassment was based on race.
The third instance that can be ruled out occurred in 1995 when Sonnier “chewed out”
Allums for his perceived poor work performance. Allums, again, does not dispute that the
animus for this “chewing out” was Allums poor work performance. (Record Document 679-2
at 8). Therefore this alleged harassment was not based on race at all.
This leaves the Court with four alleged instances of racial harassment: (1) a coworker wearing a confederate flag shirt to work; (2) a co-worker saying “black boy” over the
KCS radio; (3) Sonnier’s fraternization with Caucasian employees; and (4) a co-worker’s
use of a “juvenile” term such as “Buckwheat.” Even assuming, for the purposes of this
Motion, that the four separate instances have a racial animus, Allums still has not shown
that KCS was “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).
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The Fifth Circuit dealt with a hostile work environment claim in Fortenberry v. Texas.
75 Fed. Appx. 924, 928 (5th Cir. 2003). In this case an African American employee had to
endure two direct racial slurs. She also cited an instance where a co-worker referred to an
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. In
finding for the defendant, the court held that “it is not clear that either one of these two
[latter] incidences were racially motivated.” See Id. In further addressing claims with a racial
animus, the court held:
Although troubling, these incidences did not affect a term,
condition or privilege of employment; and because these were
isolated incidences over a long period of time they were not
sufficiently severe or pervasive to constitute an abusive or
hostile work environment Fortenberry can not establish a prima
facie case of a hostile work environment.
See Id.
Similar to Fortenberry, these four claims of alleged harassment are at least spread
from 2000-2004. If two direct racial slurs spread over two years were not sufficient to carry
a hostile work environment claim in Fortenberry, four instances, none of which rising to the
offense level of a direct racial slur, which were at least spread over four years, are not
severe or pervasive enough to prove a hostile work environment claim.
Finally, in order for this hostile work environment claim to have merit, Allums 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
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Systems, Inc., 510 U.S. 17.21 (1993). Therefore, the mere utterance of “black boy” and
“Buckwheat” alone are not sufficient to show the alteration of a term or condition of
employment. KCS has not provided Allums an argument as to how these instances altered
a term of Allums’ employment. In fact, KCS argues that “Allums has presented no evidence
that the alleged hostile work environment affected a term, condition or privilege of his
employment.” (Record Document 674-1 at 26). As pointed out supra, Allums has not
provided this Court with any new facts on any of these claims. KCS is correct, Allums has
not presented this Court with a single example of how this alleged hostile work environment
has altered his employment with KCS and it is not this Court’s duty to search them out.3
Due to the lack of evidence by Allums documenting the severity or pervasiveness
of racial discrimination at KCS and the inability of Allums 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.

3

“Judges are not like pigs, hunting for truffles buried in briefs.” U.S. v. Dunkel, 927
F.2d 955,956 (7th Cir. 1991).
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CONCLUSION
Based on the foregoing analysis, the Court finds that Plaintiff Eric Allums abandoned
all but his hostile work environment claim. Additionally, Allums has failed to provide
sufficient evidence to raise a dispute of material fact that Allums indeed endured a hostile
work environment.
Accordingly, IT IS ORDERED THAT the foregoing motion (Record Document 674)
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 26th day of October, 2011.

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