Cargo et al v. Kansas City Southern Railway Co

Filing 723

MEMORANDUM RULING re 705 MOTION for Summary Judgment on Plaintiff, Timothy Stanley's Claims filed by Kansas City Southern Railway Co, 713 MOTION to Strike Certain Exhibits Submitted by Plaintiff in Opposition to Defendant's Motion for Summary Judgment attached to 709 Response to Motion filed by Kansas City Southern Railway Co. Signed by Judge S Maurice Hicks on 03/22/2012. (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 all of Plaintiff Tim Stanley’s
(“Stanley”) claims (Record Document 705) filed by defendant Kansas City Southern
Railway Company (“KCS”). The motion states that all of Stanley’s claims should be
dismissed either on procedural or substantive grounds. Plaintiff opposes the motion.
(Record Document 709). Upon review of Plaintiff’s Opposition (Record Document 709), it
is apparent that plaintiff has expressly conceded the following claims: all State Law Claims;
his Louisiana Employment Discrimination Claim; and his retaliation claim. Further, by not
addressing them in his opposition, Stanley concedes the following claims: sex
discrimination; failure to promote; and disparate impact discrimination.1 The claims that are
properly before this Court are Stanley’s following claims: hostile work environment and
discriminatory discharge.
For the reasons that follow, Defendant’s Motion for Summary Judgment is
GRANTED.

1

See Celotex Corp. V. Catrett, 477 U.S. 317, 333 n. 3 (1986).

FACTUAL BACKGROUND
Tim Stanley is an African American male. (Record Document 705-2 at 1). Stanley
began working for KCS in January of 2000 as an electrician. (Record Document 709 at 6).
In July of 2002, Stanley transferred to the transportation department and began working
as a conductor trainee. See id. Stanley worked in the transportation department for
seventeen months. During this period, he was suspended six times. See id. In February of
2004, Stanley “was removed from service pending an investigation. That investigation
concerned the violation of General Order No. 9 which states that all road and yard crews
reporting to the terminal must report the status of their crew to the tower.” See id. As a
result of this investigation, Stanley’s employment relationship with KCS was terminated.
Stanley is a plaintiff in the above-captioned matter alleging discrimination by KCS.
(Record Document 1). Subsequently, after preliminary motion practice, the plaintiffs were
broken into 19 trial groups. (Record Document 492). The pairing was based on the
plaintiffs’ respective claims. Stanley was placed in group 6 by himself. (Record Document
492).
Motion To Strike
Before discussing Stanley’s claims, the Court must address a portion of KCS’ Motion
to Strike. (Record Document 713). In response to Stanley’s Response in Opposition to
KCS’ Motion for Summary Judgment, KCS filed a Motion to Strike several of the exhibits
Stanley attached to his opposition. One of those exhibits is an affidavit filed by Stanley.
KCS claims that the affidavit directly contradicts Stanley’s deposition and, therefore, should
be stricken from the record. (Record Document 713 at 3). Further, KCS claims that some
of the testimony in the affidavit is not based on personal knowledge. (Record Document
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713 at 5). KCS also argues that the depositions attached to Stanley’s opposition are from
prior litigation and Stanley has failed to show that they involve the same subject matter as
this case.
Starting with the affidavit, “a party cannot create a genuine issue of fact sufficient to
survive summary judgment simply by contradicting his or her own previous sworn
statement (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn
deposition) without explaining the contradiction or attempting to resolve the disparity.”
Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 806 (U.S.1999).
Stanley, attempting to avoid summary judgment, presents two forms of testimony
on his hostile work environment claim. KCS claims these two forms of testimony conflict
with each other, and therefore, without an explanation, the latter of the two should be
stricken. First is Stanley’s deposition. In this deposition, Stanley discusses that the hostile
work environment claim stems from being forced to “hostle.” (Record Document 705-5 at
27). Hostling, a railroad term, is the moving of engines and parts to different areas in the
shop. (Record Document 705-5 at 28). Stanley claims this created a hostile work
environment because “I had understudies under me when it was a job for understudies.”
See id. Stanley then admitted that some of the people who had hostled as long as he had
were both black and white. (Record Document 705-5 at 29).
Then, the following exchange took place:
Q. Now, when you were talking about that hostile environment
over at the shop, did you give me all the facts or incidents that
you believe support –
A. No, sir. Well, there was an instance – there was an instance
where I was –I came to work and I told my supervisor, I told
him my knee was hurting and can I not hostle for a day or so,
but I still was made to hostle. Then there was an instance
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when I was extremely sick, almost had pneumonia and I ended
up having to take off and go to the doctor the following day and
got my prescribed medication for my sickness.
Q. Any other facts?
A. Those are – those are the couple that stand out, you know?

See id. Before turning to a new subject, Stanley then stated that all of this occurred
between 2000 and 2002.
The possibly contradictory testimony Stanley offers regarding this hostile work
environment claim are portions of the aforementioned affidavit. (Record Document 709-7).
In paragraph one of this affidavit, Stanley states that while he was employed in the
locomotive shop at KCS, from 2000 until 2002, he “saw a hangman’s noose in the oil shed
where the supervisors parked their cars on company property.” See id. In paragraph two,
he states that he worked under Mr. Gary Moore (“Moore”), “a known Klansman, who was
my supervisor.” See id. Stanley claims he “felt threatened to learn that KCS would promote
a convicted Klansman to supervisor position, also knowing that noose hung in plain view.”
See id. In paragraph three, Stanley reurges his complaint about being forced to hostle
when white employees were not required to do the same and finally, in paragraph four, he
states he transferred out of the transportation department in 2002 because of the
harassment and discrimination. See id.
In addressing paragraph one of his affidavit, as to whether or not this affidavit
directly conflicts with the deposition in regards to the allegation of the noose being hung,
there is an important distinction between “those are the couple [of instances] that stood out”
and, perhaps, “those are the only two instances that occurred.” In this instance, KCS
appears to be one question short of precluding the use of this portion of the affidavit. Since
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Stanley, in his deposition, never expressly stated that the issues discussed in his deposition
were the only issues he confronted, there is no direct contradiction here. Therefore, the
additional evidence that Stanley saw a noose in the oil shed where the supervisors parked
their cars may be considered. However, in addressing paragraph three, the statement in
the affidavit that “newly hired white employees were not required to do the same duties as
an electrician” in regards to hostling conflicts with Stanley’s deposition testimony. During
his deposition, Stanley was asked “so it’s fair to say that some people that hostled were
black, some were white?” and he answered “yes, sir.” He was then asked, “and it’s true that
they were all different levels of seniority too, isn’t it?” And he answered “Well, the day crew
was – the day crew was an older crew by choice.” (Record Document 713-1 at 6).
Therefore, without explanation of this discrepancy, paragraph 3 of the affidavit is stricken.
See Cleveland v. Policy Management Systems Corp.,

526 U.S. at 806. Finally, in

paragraph four, the portion of the affidavit that reads “[t]he reason why I transferred to the
transportation department in 2002 was because of the above harassment and
discrimination,” directly conflicts with Stanley’s deposition. (Record Document 709-7). In
his deposition, Stanley was asked, “Why would you want to try transportation out?” In
response, Stanley stated, “Well, I needed the money, you know. It paid a little better than
in the shop.” (Record Document 705-5 at 11). Therefore paragraph 4 of the affidavit is
stricken from the record.
KCS also argues that Stanley does not establish personal knowledge that Moore
was a “convicted Klansmen,” that KCS knowingly promoted him in spite of his conviction,

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and that KCS knew of the noose. While the cases KCS cites for this proposition are all
distinguishable from this case,2 KCS is correct that this evidence is not admissible.
“Federal Rule of Civil Procedure 56(e)(1) provides, in relevant
part, that ‘[a] supporting or opposing affidavit must be made on
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant is competent to testify on
the matters stated.’ Affidavits, or portions thereof, may be
stricken from the record if they fail to comport with the
requirements of this rule, and more specifically, if they contain
inadmissible hearsay, information not based on the personal
knowledge of the affiant, or legal conclusions.”
Meadaa v. K.A.P. Enterprises LLC, 2010 WL 2195280, *2 (W.D. La. 2010) (citations
omitted). Stanley, as a non-movant, is held to a less exacting standard in regard to this
affidavit. See id. Still, the Court has been supplied with a 158 page deposition and a two
page affidavit; at no point has Stanley been able to show, through his testimony, what
Moore was convicted of, how Stanley knew Moore had a conviction, and how Stanley knew
KCS was aware of this conviction. Further, Stanley has been unable to show that KCS
knew of the aforementioned noose. As stated in Meadaa, “[m]ere conclusory allegations
are not competent summary judgment evidence and may be stricken from the record when
submitted in an affidavit.” See id. (Citations omitted). Therefore, without a showing that it
was made on Stanley’s person knowledge, paragraph two of the affidavit is stricken.
The motion to strike then requests the exclusion of the deposition testimony of
Richard Venditti (“Venditti”) (Record Document 709-3), Donald Duke (“Duke”) (Record
Document 709-5), and Gene Harville (“Harville”) (Record Document 709-6) because they
2

For instance, KCS cites Bolen v. Dengel, 340 F.3d 300, 313 (5th Cir. 2003). In this
case, the affidavit sought to be stricken specifically stated “based on information and
belief,” which, in the eyes of the Court, was an admission that the information was not
based on personal knowledge.
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we obtained from a case where Stanley was not a party and Stanley has failed to show the
subject matter of the case is the same as the one currently at issue. (Record Document
713 at 2). In response, Stanley states, “Clearly, this is the case in these two employment
discrimination cases.” (Record Document 716 at 2). “That action involved this defendant
and this testimony details the [sic] only the existence of the hangman’s noose. Mr. Stanley
can testify to the environment at the diesel shop at trial and included this information in his
affidavit attached to his response to the defendant’s motion for summary judgment.”
(Record Document 716 at 3).3
“The decision whether to admit a deposition from a prior lawsuit is vested in the
district court's sound discretion...Because the underlying objective is efficiency at trial
without jeopardizing accurate fact finding, the district court is usually in the best position to
decide whether a prior deposition should be admitted.” Hub v. Sun Valley Co., 682 F.2d
776, 777 (9th Cir. 1982). Federal Rule of Civil Procedure 32 (a) states that “[a] deposition
lawfully taken and, if required, filed in any federal- or state-court action may be used in a
3

A reading of plaintiff’s opposition to KCS’ motion for summary judgment makes it
clear that this statement is patently false. The deposition testimony at issue here is used
for more than plaintiff’s counsel seems to be willing to admit. Stanley clearly uses Venditti’s
deposition to establish that Moore was a convicted of a felony relating to cross burning and
a member, or former member, of the Klu Klux Klan. (Record Document 709 at 8). Further,
the depositions of Duke and Harville are only used to establish that Moore was a racist and
used the “N” word frequently. (Record Document 709 at 9). The Court is, in fact, quite
surprised to find that the portions of the depositions of both Duke and Harville provided to
the Court do not even contain the word “noose” in them. It is therefore apparent that plaintiff
is either conceding the points raised in his opposition to summary judgment or is attempting
the mislead this Court. The Court will give plaintiff’s counsel the benefit of what little doubt
exists and choose to treat this statement as a concession of the points that directly conflict
with this statement by plaintiff’s counsel. Regardless, in the interests of justice, the Court
will continue to analyze the depositions attached to Stanley’s opposition absent plaintiff’s
counsel disingenuous response to KCS’ motion to strike.
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later action involving the same subject matter between the same parties.”4 The three
depositions in question are only portions of larger depositions. They were all taken as part
of the Abner v. Kansas City Southern Railway Company, 03-CV-765 (W.D. La. 2008). The
only thing the Court knows about this case is that the “action involved this defendant” and
that Abner was an “employment discrimination action.” Reviewing the depositions
themselves, it is unclear what the subject matter of Abner was. It seems clear that Moore’s
actions were an issue but the Court is not even told who the plaintiff was, what his or her
role in KCS was, or what claims he/she was bringing. In Williamson v. City of Morgan City,
2009 WL 2176002 (W.D. La. 2009), the court refused to allow depositions from a previous
lawsuit on the basis that the “Court does not know the circumstances surrounding any of
the aforementioned incidents.” Likewise, Stanley has failed to provide enough information
on this Abner case to satisfy the Court that Abner is the same subject matter as the current
claim. Therefore, the Court finds that the depositions of Venditti (Record Document 709-3),
Duke (Record Document 709-5), and Harville (Record Document 709-6) are stricken from
the record.
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

4

Plaintiff cites to a Texas Supreme Court case, Garcia v. Peeples, 734 S.W.2d, 343
(Tex. 1987) to show that the Texas Supreme Court has found that Texas state trial courts
have “abused its discretion by prohibiting the sharing of the Defendant’s privileged
information, produced during discovery, with other similarly situated litigants.” (Record
Document 716 at 3). A Texas Supreme Court opinion does not carry binding or persuasive
authority on a Federal Court sitting with federal question subject matter jurisdiction.
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entitled to judgment as a matter of law.”5 Quality Infusion Care, Inc. v. Health Care Serv.
Corp., 628 F.3d 725, 728 (5th Cir. 2010). “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
A.

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
5

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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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”
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, Stanley has failed to meet that burden.
Stanley rests his hostile work environment claim on four separate instances that he
claims, in the aggregate, amount to a hostile work environment: 1. that he was made to
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“hostle” even though he was not new to his job; 2. that he was made to “hostle” when his
knee hurt; 3. that he was sent to the doctor when he complained of having the symptoms
of pneumonia; and 4. that there was a noose hung at KCS in the oil shed where the
supervisors parked their cars.
In order for any of these four events to be probative for a hostile work environment
claim, they must first be seen as harassment and the harassment must be based on
Stanley’s race. The first two claims regarding “hostling” fail to meet either of these two
tests. Stanley admits that he “does not know if hostling was a job for understudies; rather,
his understanding is purely based upon what other employees told him.”

(Record

Document 705-2 at 30; 709-1 at 12). Further, “both African American and Caucasian
employees of varying levels of seniority in the Diesel Shop hostled, and some other
employees in the Diesel Shop hostled as long as Stanley had.” See id. Therefore, it
appears that hostling was simply a part of Stanley’s job and that it was a task assigned to
both African Americans and Caucasians. For these reasons, it does not appear that Stanley
being told to hostle constituted harassment but even if it amounted to harrassment, Stanley
has offered no evidence it was harassment based on his race. The third claim, that of being
“forced” to see a doctor when ill, is not probative either. Again, the Court does not believe
this amounts to harassment, but even if it qualified as harassment, Stanley has not even
attempted to show how this “harassment” was tied to his race.
The final instance, the hanging of a noose on KCS property, may certainly be
described as harassment. The only admissible evidence that Stanley offers regarding this
noose is in his affidavit. Stanley states that “[b]etween January 10, 2000 and July 8, 2002,
I worked for Kansas City Southern as an electrician in the locomotive shop in Shreveport,
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La. During that time, I saw a hangman’s noose in the oil shed where the supervisors parked
their cars on company property.” (Record Document 709-7). It appears that this noose was
never mentioned by Stanley throughout his 158 page deposition. Stanley does not
reference his deposition at all. Rather, it appears that Stanley, as an after thought,
mentioned the presence of a noose when filing his opposition to summary judgment.
There are very few details surrounding this noose. It is unclear who put up the noose
or how long the noose was displayed. More importantly, Stanley does not even attempt to
allege that he ever reported the presence of this noose to anyone at KCS.6 This alone could
be fatal to his hostile work environment claim. See Harvey v. Maytag Corp., 105 Fed. Appx.
863 (7th Cir. 2004). Further, since it is unclear as to how long this noose was displayed,
the Court cannot say that KCS should have known about the presence of the noose. The
presence of a noose, generally speaking, may qualify as a form of harassment without
more. The Court does not feel the need to explain that the presence of a noose can
certainly be considered harassment by African American KCS employees. However, the
Court does not find that, based on the evidence provided, this noose “had the effect of
altering the terms, conditions, or privileges of his employment.” Carter v. Luminant Power
Services Co., 2011 WL 6090700 (N.D. Tex. 2011).
All of the alleged harassment took place while Stanley was working in the diesel
shop at KCS. Stanley expressly stated that the reason he sought a transfer out of the diesel
6

Instead, Stanley relies on testimony given through the deposition of Vandetti, which
this Court has already ruled inadmissible. However, even if it were admissible, the portions
of Vandetti’s deposition that plaintiff cites to do not stand for the proposition that anyone
at KCS knew of the noose. Venditti specifically states that “[m]anagement said they didn’t
know about the noose.”(Record Document 709-3 at 5). Venditti then speculates that it was
a “management should have known type of thing.” See id.
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shop was to make more money. (Record Document 709-7). There is no admissible
evidence asserted by Stanley that shows how this noose in the oil shed affected a term,
condition, or privilege of his employment. “Not all harassment will affect a term, condition,
or privilege of employment...Title VII's overall goal of equality is not served if a claim can
be maintained solely based on conduct that wounds or offends but does not hinder an
employee's performance.” Carter v. Luminant Power Services Co., 2011 WL 6090700
(N.D. Tex. 2011). Stanley left the diesel shop to what appears to be a promotion to the
transportation department. Therefore, without any evidence of how the presence of the
noose affected Stanley’s employment, this hostile work environment claim must fail as
Stanley cannot meet his prima facie burden.7
B. 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

7

The Court struck a portion of Stanley’s proposed evidence on this hostile work
environment claim as inadmissible. This evidence mainly stood to show that a supervisor
that worked with Stanley had known KKK ties, although it is unclear when these ties were
and whether or not they were present while Stanley was employed at the diesel shop. Even
had this evidence been admitted, Stanley still fails to show the Court how any of this
connected to him or how it affected a term, condition, or privilege of his employment.
Stanley does not even point to a single instance in his voluminous deposition where he
even mentions this supervisor’s name. Stanley does not accuse this supervisor of calling
him racially charged epithets or even hearing of the supervisor calling any other KCS
employee such a name. Further, in his affidavit, Stanley fails to mention a single instance,
that does not directly contradict his deposition, where the supervisor’s harassment affected
a term, condition, or privilege of his employment with KCS. Therefore, even if this evidence
had been considered, Stanley’s hostile work environment claim would have failed.
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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
(1973). Nasti, 492 F.3d at 593. Stanley 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, Stanley 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
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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).
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. In this case, the plaintiff
and the comparators were both engineers for KCS. 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.
Stanley provides the Court with five Caucasian employees whom he claims were
“engaged in substantially similar conduct to Mr. Stanley and were not terminated or
disciplined for his actions.” (Record Document 709 at 20). Those five employees are Sam
Yosten (“Yosten”), Ken Crain (“Crain”), Tillman Tolson (“Tolson”), Andy Smith (“Smith”),
and Chris Morphew (“Morphew”).
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Stanley was employed as a conductor during the relevant period. It is undisputed
that between July 8, 2002 and February 20, 2004, Stanley was suspended six times. Those
suspensions were for failing to follow a supervisor’s instructions, a “switching incident,”
improperly handling a train, failing to contact the tower, failing to be available for his
assigned shift, and failing to report for duty. (Record Document 705-1 at 19). Finally, in
February of 2004, Stanley “failed two operational tests in that he failed to comply with
General Order No. 9, and he was quarrelsome when he failed to comply with General
Order No. 9.”8 (Record Document 705-2 at 13; 709-1 at 6). Stanley was discharged after
these two violations. (Record Document 705-1 at 19).
To be a proper comparator of Stanley, the abovementioned five employees’
circumstances must be nearly identical. Stanley was a conductor for KCS. The only
information that Stanley provides the Court with on these comparators are that Crain and
Yosten were engineers at KCS who worked in the transportation department and “their
discipline was handled internal [sic] by the same decision makers and discipline policy.”
(Record Document 709 at 21). Further, Tolson, Morphrew, and Smith all “violated KCS
rules and were not terminated.” See id. KCS, however, goes through each comparator,
individually, and provides specific reasons why their circumstances are not “nearly
identical” to Stanley’s. KCS shows that Cain is not a conductor, Yosten did not work in the
same location as Stanley and was only disciplined on two occasions, Tolson was an

8

General Order No. 9 states: “All road and yard crews going on duty in Shreveport
Terminal...must report the status of their crew to the tower no later than five [5] minutes
after their on-day time.” (Record Document 705-2 at 12).
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engineer and was only disciplined on two occasions, Smith began working with KCS in the
1970s, and Morphew also did not work in the same location as Stanley.
As previously stated, 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
at 141. Here, KCS has demonstrated the absence of a genuine dispute of material fact in
that these KCS employees are not proper comparators. Stanley, in response, has merely
listed the comparators’ names and made conclusory statements that their circumstances
are nearly identical to Stanley’s. Stanley has failed to meet his summary judgment burden
of providing specific facts that show there is a genuine dispute of material fact as to these
comparators. Therefore, Stanley has failed to meet his prima facie burden that similarly
situated employees were treated more favorably than he was and his discriminatory
discharge claim must fail.
CONCLUSION
Stanley has expressly conceded the following claims: all State Law Claims; his
Louisiana Employment Discrimination Claim; and his retaliation claim. Further, by not
addressing them in his opposition, Stanley concedes the following claims: sex
discrimination; failure to promote; and disparate impact discrimination. Finally, Stanley has
failed to show that his work environment while employed at KCS’ diesel shop amounted to
a hostile work environment and he has failed to meet his prima facie burden to prevail on
his discriminatory discharge claim.
Further, KCS’ motion to strike is well grounded as to the depositions of Venditti
(Record Document 709-3), Duke (Record Document 709-5), and Harville (Record
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Document 709-6) and those depositions are stricken. Further, only paragraph one of
Stanley’s affidavit is properly before the Court. The remainder of the affidavit is stricken.
Accordingly, IT IS ORDERED THAT the foregoing motion (Record Document 705)
be and is hereby GRANTED. All of Stanley’s claims against KCS are DISMISSED WITH
PREJUDICE. Further, KCS’s motion to strike (Record Document 713) is GRANTED IN
PART and DENIED IN PART.
A Judgment consistent with the terms of the instant Memorandum Ruling shall issue
herewith.
Thus done and signed, in Shreveport, Louisiana, this 22nd day of March, 2012.

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