Cargo et al v. Kansas City Southern Railway Co
Filing
703
MEMORANDUM RULING re 686 MOTION for Summary Judgment ON PLAINTIFF DEREK LAMETTE'S CLAIMS filed by Kansas City Southern Railway Co, 695 MOTION to Strike Exhibit attached to 692 Memorandum in Opposition to Motion, Exhibit to Plaintiff Derek Lamette's Opposition to Defendant's Motion for Summary Judgment filed by Kansas City Southern Railway Co. Signed by Judge S Maurice Hicks on 1/4/12. (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 Derek Lamette’s
(“Lamette”) various discrimination claims (Record Document 686) filed by Defendant
Kansas City Southern Railway Company (“KCS”). The motion conveys reasons for the
Defendant seeking dismissal of all claims raised by Lamette. (Record Document 686).
Lamette, in opposition to Defendant’s Motion for Summary Judgment, expressly concedes
all of his claims except for his discriminatory discharge and failure to train claims. (Record
Document 692). However, Lamette fails to address the failure to train claim and, therefore,
that claim is waived. See Celotex Corp. v. Catrett, 477 U.S. 317, 333 n.3 (1986). KCS also
moves this Court to strike the only exhibit Lamette offered to the Court in opposition to
KCS’s summary judgment. (Record Document 695). For the reasons that follow,
Defendant’s Motion for Summary Judgment is GRANTED and Defendant’s Motion to Strike
is DENIED AS MOOT. Accordingly, all of Lamette’s claims of are DISMISSED.
FACTUAL BACKGROUND
Lamette is an African American male. (Record Document 686-2 at 1). He was
employed by KCS from May of 2004 until his employment was terminated in October of
2004. (Record Document 692 at 4). In August of 2004, Lamette was promoted to the
position of probationary conductor. See id. Between September and October of 2004,
Lamette was disciplined for a derailment and running through a switch. See id. As a result
of Lamette accepting responsibility for the derailment, he received a five day suspension
and it was recommended that Lamette undergo a five day remedial training in early
October of 2004. (Record Document 686-2 at 11, 14). On September 18, 2004, the same
day Lamette accepted responsibility for the derailment, Lamette improperly ran through a
switch, damaging the switch. (Record Document 686-2 at 11, 13). It was not until October
6, 2004 that KCS investigated this incident. Lamette, again, accepted responsibility for his
actions. See id. After the completion of his assigned remedial training, but still during
Lamette’s probationary period of employment, Lamette was let go because KCS viewed
him as an “unsafe employee.” (Record Document 686-2 at 15).
Following his dismissal, Lamette 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. Lamette was placed in group five with Abon Ball
as they both worked as trainees 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.”1 Quality Infusion Care, Inc. v. Health Care Serv.
1
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.
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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).
LAW AND ANALYSIS
i. Deficient Opposition to Summary Judgment
Lamette’s opposition to summary judgment is deficient. (Record Document 693). It
is signed by an attorney admitted pro hac vice, but, as required by Local Rule 83.2.6, there
is no signature or endorsement of local counsel. See id. Lamette’s counsel was put on
notice of this deficiency on December 12, 2011. To date, Lamette’s counsel have not cured
this deficiency. The Court has the option to strike this opposition sua sponte and analyze
this motion for summary judgment as unopposed. In the interests of justice the Court will,
nonetheless, consider Lamette’s deficient opposition.
F.R.C.P. 56(a) and advisory committee’s note (emphasis added).
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ii. Motion to Strike
Lamette, in support of his opposition to KCS’s Motion for Summary Judgment,
attached a letter from Robert Barnes (Record Document 692-2), an engineer in the
Vicksburg subdivision of KCS, to Michael Coleman, a terminal director at KCS. (Record
Document 699 at 2). KCS has moved to strike this exhibit as unauthenticated and
inadmissible hearsay within hearsay. (Record Document 695). The letter was a part of an
Equal Opportunity Employment Commission’s (“EEOC”) file and was submitted to the
EEOC by Lamette. (Record Document 695-1 at 2).
The letter itself is not in the form of an affidavit and it is unsworn. There is Fifth
Circuit precedent that a letter found in an EEOC file, without more, is unauthenticated and
inadmissible. Cruz v. Aramark Services, Inc., 213 Fed. Appx 329 (5th Cir. 2007). However,
in an abundance of caution, the Court will analyze Lamette’s opposition to summary
judgment with the exhibit as it does not alter the outcome of the Court’s analysis.
Therefore, the Motion to Dismiss is moot.
ii. Discriminatory Discharge
Employers are prohibited from discriminating “against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A claim
for discrimination may be proven with direct or circumstantial evidence. Nasti v. CIBA
Specialty Chemicals Corp., 492 F.3d 589,593 (5th Cir. 2007). If a Plaintiff lacks direct
evidence to prove such a claim, courts are to implement a burden shifting analysis as
established under McDonnell Douglas Corp. V. Green, 411 U.S. 792, 802, 93 S.Ct. 1817
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(1973). Nasti, 492 F.3d at 593. Lamette has not provided the Court with any direct evidence
of discrimination and therefore analysis under the McDonnell Douglas framework is
appropriate. The Fifth Circuit has explained this framework as follows:
Under the McDonnell Douglas framework, a plaintiff must first
establish a prima facie case of...discrimination. The employer
then bears the burden of producing a legitimate,
non-discriminatory reason for its actions. The employer is not
required to convince the Court that it was actually motivated by
this reason; it need only raise a genuine issue of fact as to
whether or not it discriminated against the plaintiff. Once the
employer offers a legitimate, nondiscriminatory reason for the
plaintiff's treatment, the presumptions of the McDonnell
Douglas framework dissipate, and the plaintiff bears the
ultimate burden of persuading the trier of fact that the
defendant engaged in intentional discrimination. To satisfy this
burden, a plaintiff must produce substantial evidence that the
employer's proffered reasons for its actions were a pretext for
discrimination. A plaintiff can establish pretext either through
evidence of disparate treatment or by showing that the
employer's proffered explanation is false or ‘unworthy of
credence.’
Nasti, 492 F.3d at 593. (Internal citations omitted)
In order to establish a prima facie case of discriminatory discharge, Lamette must
show that (1) he belongs to a protected class, (2) he was qualified for his position, (3) he
suffered an adverse employment action, and (4) similarly situated employees were treated
more favorably. See id.
It is apparent from both the facts of this case and the parties’ briefings that this claim
of discriminatory discharge rests on the fourth element of the prima face case. The Fifth
Circuit has been clear that “for employees to be similarly situated[,] those employees'
circumstances, including their misconduct, must have been ‘nearly identical.’ ” Perez v.
Texas Dept. of Criminal Justice, 395 F.3d 206 (5th Cir. 2004).
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In Lee v. Kansas City Southern Ry Co., 574 F.3d 253 (5th Cir. 2009), the Fifth
Circuit found the district court erred in finding that the plaintiff did not meet his prima facie
burden of identifying a similarly situated employee to the plaintiff. The plaintiff in this case
was fired for “(1) disregarding a block signal that indicated he had to stop the train and (2)
failing to contact his dispatcher for authorization to proceed.” See id. at 261. The plaintiff’s
comparator had committed the following violations in the same period: “(1) failed to inspect
a train in compliance with a trackside warning signal, for which he received a 30-day
suspension; (2) improperly handled a train that separated as a result, for which he received
a 5-day suspension; and (3) occupied a main track without authority, for which he was fired,
only to be reinstated by Alexander.” See id. The court held, “We are satisfied that
employment histories marked by a comparable number of serious moving violations by train
engineers who perform the same job are sufficiently similar to require comparison of the
two when, as here, the final violations-failing to obey a stop signal-are indistinguishable.”
See id. at 261-262.
The similarly situated employee Lamette has offered to the Court is Shane
McFadden (“McFadden”). (Record Document 692 at 7). The only evidence Lamette
attempts to offer to support the contention that McFadden and Lamette are similarly
situated is the letter discussed supra. The letter was drafted by Robert Barnes, an engineer
at KCS, complaining about the conduct of McFadden. While Lamette refers to McFadden
as a probationary conductor in his briefings to the Court, there is no competent evidence
that this is the case. In fact, the evidence only suggests he is a conductor, as that is what
he is referred to by Barnes. (Record Document 692-2 at 1). Further, it is unclear who
McFadden’s supervisor is, what his work history is, what his disciplinary history is, or even
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how long McFadden has been employed by KCS. Moreover, all Lamette has supplied to
the Court is that McFadden was accused, by a co-worker, of conduct that could lead to
discipline. He has not shown the Court any evidence that McFadden was not, in fact,
disciplined for his conduct.
It is also clear that Lamette’s offenses were, at a minimum, derailment and running
through a switch. McFadden’s offenses were: not following a timetable and falling asleep
while conducting a train. (Record Document 692-2). Therefore, it is apparent that Lamette’s
and McFadden’s offenses are far from “nearly identical.” Without showing similarly situated
employees that were treated more favorably, Lamette has failed to make a prima facie
showing and therefore summary judgment is appropriate.
Even if Lamette were able to meet his prima facie case, KCS has provided a
legitimate and non-discriminatory reason for his discharge. Lamette admits that KCS’
reason for terminating his employment was that they considered him an “unsafe employee.”
(Record Document 686-2 at 15). If true, this is a legitimate and non-discriminatory reason
to discharge and employee. Under the McDonnell Douglas framework, the burden would
then shift to Lamette to show the given reason was pretextual. To do this, Lamette must
show KCS’ proffered reason is “unworthy of credence.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133,144, 120 S.Ct. 2097 (2000). Lamette was admittedly responsible
for a derailment and running through a switch in only five months on the job. The only
showing of a pretext that Lamette attempts to make is in the form of the broad opinions of
an expert witness who claims that there are flaws in KCS’ discipline system. This does not
address, at all, the fact that Lamette accepted responsibility for both of these occurrences.
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Based on the showing Lamette has made, Lamette has failed to show that KCS’ reason for
termination was pretextual.
Lamette cannot prove the prima facie elements of his claim of discriminatory
discharge. He has failed to show a similarly situated employee was treated more favorably
than he was; however, even had he been able to meet that burden, KCS offered and
proved a legitimate, non-discriminatory reason for Lamette’s discharge. Lamette failed to
prove that this reason was pretextual. For these reasons, summary judgment in favor of
KCS is appropriate.
CONCLUSION
Based on the foregoing analysis, the Court finds that Plaintiff Derek Lamette has
abandoned all claims, save his discriminatory discharge claim. Additionally, Lamette has
failed make a prima facie showing of discriminatory discharge. Even if he had, Lamette is
unable to show that KCS’ legitimate and nondiscriminatory reason for discharge is
pretextual
Accordingly,
IT IS ORDERED THAT Defendant’s Motion to Strike (Record Document 695) is
DENIED AS MOOT.
IT IS FURTHER ORDERED THAT the foregoing motion (Record Document 686) be
and is hereby GRANTED. All of Plaintiff’s claims are DISMISSED WITH PREJUDICE.
An Order consistent with the terms of the instant Memorandum Ruling shall issue
herewith.
Thus done and signed, in Shreveport, Louisiana, this 4th day of January, 2012.
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