Cargo et al v. Kansas City Southern Railway Co

Filing 733

MEMORANDUM RULING re 710 MOTION for Summary Judgment on Plaintiff Randall Corsentino's Claims filed by Kansas City Southern Railway Co. Signed by Judge S Maurice Hicks on 05/01/2012. (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 Randall
Corsentino’s (“Corsentino”) claims (Record Document 710) filed by defendant Kansas City
Southern Railway Company (“KCS”). The motion alleges that all of Corsentino’s claims
should be dismissed, either on procedural or substantive grounds. Plaintiff opposes the
motion. (Record Document 726). Upon review of Plaintiff’s opposition, by not addressing
them in his opposition, Corsentino concedes the following claims: age discrimination, race
discrimination, hostile work environment, and disparate impact.1 The claims that are
properly before the Court are the remaining claims: various state law claims, Louisiana
Employment Discrimination Law (“LEDL”) claims, associational race discrimination claims,
and retaliation claims.
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
Corsentino is a Caucasian male who began working for KCS in 1980 at the Baton
Rouge facility. (Record Document 710-2 at 1). While working at KCS, Corsentino served
as the local chairman of the union for twelve years. In this position, he represented most
of the employees at the Baton Rouge facility. (Record Document 710-2 at 8). As local
chairman, Corsentino served as an advisor to, and representative of, KCS employees
during disciplinary procedures. (Record Document 710-2 at 10). In March of 2004,
Corsentino was discharged following a derailment that occurred in February of 2004.
(Record Document 710-2 at 24). This was his fifth suspension worthy offense in four
years.2 (Record Document 710-1 at 8). Corsentino alleges that he was actually terminated
because he “stood up for people of color.” (Record Document 726-1 at 9). Corsentino
alleges he confronted KCS management about what he claims was “disparate discipline”
between black and white employees and this led to his firing. (Record Document 726-1 at
11).
Corsentino 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

2

Corsentino appears to dispute these facts, stating that they are an attempt to
“extend the pretext used by KCSR during the relevant period to actualize the racially
discriminatory policy of the company.” (Record Document 726-1 at 6). However, Corsentino
does not deny that the underlying facts are true. Instead, Corsentino argues that the reason
for listing those facts makes them false. This argument fails to show how the underlying
facts are false and since Corsentino has made no attempt to show that the facts are false,
these facts are undisputed.
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plaintiffs’ respective claims. Corsentino was placed in group 7 by himself. (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.”3 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.

State Law Claims

Corsentino has brought the state laws claims of wrongful termination, invasion of
privacy, emotional distress, and defamation. KCS argues that these claims are barred

3

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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because Corsentino has not “set forth a short and plain statement of the claim showing the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Further, KCS shows specifics as to why
each of these claims cannot survive summary judgment. (Record Document 710-1 at 8).
Corsentino does not address any of these arguments in his opposition to summary
judgment even though he lists “State Law Claims” as the header to part III of his opposition.
(Record Document 726 at 9). Therefore, Corsentino has conceded these state law claims
by not addressing them.
B. Louisiana Employment Discrimination Law
KCS argues that the LEDL requires an employee to give written notice, of at least
thirty days before taking judicial action, of his intent to file suit and Corsentino has failed to
do so in this matter. La. Rev. Stat. § 23:303. Procedurally, it appears that the only notice
Corsentino has given KCS is his August 22, 2005 charge of discrimination. Therefore, any
discrimination not addressed in this charge of discrimination is procedurally barred.
Otherwise, Corsentino correctly points out that this LEDL claim should be analyzed and
resolved in the same manner as his Title VII claims. The Court agrees. Its will continue and
analysis of the LEDL will be tied to the analysis under Title VII.
C. Associational Race Discrimination
“Title VII provides that it is an ‘unlawful employment practice for an employer to
discharge an individual... because of such individual's race.” 42 U.S.C. § 2000e-2(a)(1).
This court has recognized that § 1981 and Title VII prohibit discrimination against an
employee on the basis of a personal relationship between the employee and a person of
a different race.’ ” Floyd v. Amite County Sch. Dist., 581 F.3d 244, 249 (5th Cir. 2009)
(citations omitted). The Fifth Circuit has upheld a jury verdict in an associational race
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discrimination claim because, in that case, “a reasonable juror could find that [the plaintiff]
was discriminated against because of her race (white), if that discrimination was premised
on the fact that she, a white person, had a relationship with a black person.” DeffenbaughWilliams v. Wal-Mart Stores, 156 F.3d 581, 588 (5th Cir.1998), vacated in part on other
grounds in Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir.1999) (en
banc).
An associational discrimination claim is based on the plaintiff’s race, not the person
the plaintiff was associated with. Floyd, 581 F.3d at 250. “The association cases are
predicated on animus against the employee because of his association with persons of
another race.” See id. In Drake v. Minnesota Min & Mtg Co., 134 F.3d 878, 884 (7th Cir.
1998), the Seventh Circuit dismissed a associational discrimination claim because “Mr.
Drake introduced no evidence that the subsequent treatment he received from his
co-workers was a result of his race.”
In Floyd, a black principal alleged he was discharged due to his relationship with
white track athletes. See id. However, the Fifth Circuit granted summary judgment because
the evidence reflected “that the racial animus was directed solely towards the white
students.” See id. “Floyd claimed in a deposition that [the school board president] told him
that ‘he did not-that they did not want them white kids over there at [his school]. Coach, you
know better.’ ” See id. Other witnesses stated the school board president told them,
“Caucasian students had no business using [ACHS's] track facilities.” See id. The Fifth
Circuit ultimately held that “[a]lthough [the school board president]’s statements reflect clear
racial animus, nothing in these statements supports a conclusion that the animus was

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directed at Floyd on the basis of his race.” Summary judgment for the school district was
affirmed.
The Fifth Circuit has not been entirely clear as to what type of relationship is
necessary for an associational race discrimination claim to survive summary judgment. In
Pittman v. General Nutrition Corp., 515 F. Supp.2d 721 (S.D. Tex. 2007), a white plaintiff
alleged that he lost the opportunity at a promotion because he supported a black coworker, Demeke, for a different position. Pittman discussed what type of relationship or
association is required for an associational race discrimination claim:
GNC argues that only marital or other intimate relationships are
protected, but the point is academic. Pittman has not proven or
even asserted that he and Demeke had any sort of
“relationship.” Pittman certainly was acquainted with and had
supervised Demeke, which was the basis of his allegedly high
opinion of Demeke's job performance. But, there is no
indication that the two had a personal, social or intimate
friendship, or that they even had worked closely together.
Assuming arguendo that non-intimate relationships enjoy
statutory or constitutional protection, which is a serious
question, Pittman has not established that he and Demeke had
any relationship that would constitute protected “association.”
Pittman has failed to establish a critical element of this form of
his associational discrimination claim, and summary judgment
is appropriate on this theory as well.
See id. at 746.
KCS argues that Corsentino cannot prove that any alleged discrimination was based
on his race. Further, KCS claims that the “associations” at issue are not the types of
“associations” that can support this type of claim. Corsentino replies by stating that KCS’
management “consistently targeted black employees for discriminatory discipline, that
those black employees that Mr. Corsentino represented received harsher discipline than
the white employees that he represented.” (Record Document 726 at 12). “Finally, the
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evidence is clear that Mr. Corsentino was paid for his advocacy by falling victim to the same
discriminatory discipline machine engineered by Sonnier and Thornell.” See id.
Corsentino backs his position by referencing his deposition. In this deposition,
Corsentino stated “[A.J. Sonnier (“Sonnier”), superintendent of KCS’ Gulf Division] always
told me he was going to get me....he was going to get me because I stood up for people
of color, and he -- I was blocking what his plans were.” (Record Document 726-3 at 9-10).
Corsentino also stated “I was in [Sonnier’s] way because me and him butted heads on all
occasions, you know.” (Record Document 726-3 at 12). However, the following exchange
also took place:
Q. And it’s my understanding that your claim is that you were
discriminated against because of your race. Is that accurate?
A. Well, not exactly because of my race. Because of what I
actually did, the people I took up for.
Q. So it’s your testimony here today that you were terminated
or were harassed because you stood up for a certain group of
people, correct?
A. Yes, sir, I stook up for black people. I stood up for
everybody that worked there, but in particular black people that
-- the reason I was discriminated against.
(Record Document 710-6 at 3). This uncontroverted testimony makes it clear that
Corsentino was not discriminated against because of his race at all. In fact, from all of the
above cited testimony, Corsentino could have been Caucasian, African-American, or any
other race and the results would have been precisely the same.
The associational race discrimination claims, where the plaintiff properly alleged a
claim under Title VII, all dealt with situations where the plaintiff’s race was related to the
discrimination. See Deffenbaugh-Williams, 156 F.3d 581 (an interracial romantic
relationship); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc.,
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173 F.3d 988 (6th Cir. 1999) (employee was discharged because his child was biracial);
Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986) (employee
discriminated against as a result of his interracial marriage). In all of these cases, if the race
of the plaintiff were different, the discrimination may not have existed. This is not the case
here. Since the undisputed testimony shows that Corsentino’s race was irrelevant to his
discharge, a reasonable juror could not find that Corsentino was discriminated against on
account of him being a Caucasian and summary judgment is appropriate on Corsentino’s
associational discrimination claim.
Based on this ruling, the Court need not address the question of whether or not a
union chairman representing African American co-workers is a close enough association
for an associational race discrimination claim.
D. Retaliation
Retaliation claims are subject to the McDonnell Douglas framework. 411 U.S. 792,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This begins with Corsentino establishing a prima
facie case of retaliation. “To establish a prima facie case of retaliation, the plaintiff must
establish that: (1) he participated in an activity protected by Title VII; (2) his employer took
an adverse employment action against him; and (3) a causal connection exists between
the protected activity and the adverse employment action.” McCoy v. City of Shreveport,
492 F.3d 551, 556-57 (5th Cir.2007).
KCS asserts that Corsentino allegedly only participated in protected activity one time
when he reported alleged discrimination by making a “phone call to someone” but he could
not supply the person’s name. (Record Document 710-7 at 21). Further, he could not
produce a letter that he was allegedly given in response to this phone call. See id.
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Otherwise, the only activity Corsentino alleges is that, as the union chairman, he
represented African Americans in disciplinary proceedings and confronted Sonnier about
disparate treatment of African American employees. If Corsentino was retaliated against
because he defended African American employees, this may constitute protected activity.
Therefore, the Court will assume, for the purposes of this motion only, that Corsentino did
engage in protected activity. The second factor of his prima facie case, that of an adverse
employment action, is met because Corsentino was discharged.
The next prong in the prima facie case is the causation element. “The proper
standard of proof on the causation element of a Title VII retaliation claim is that the adverse
employment action taken against the plaintiff would not have occurred “but for” her
protected conduct.” Septimus v. University of Houston, 399 F.3d 601, 608 (5th Cir. 2005).4
The alleged protected activity is representing and defending black employees in disciplinary
proceedings as a union chairman and an unsubstantiated claim that Corsentino phoned an
unnamed person at KCS to complain about the alleged racial discrimination of Corsentino’s
co-workers. Corsentino makes much of the fact that Sonnier was unfair towards black

4

While it is unclear where the “but for” standard belongs in the McDonnell Douglas
framework, that point is merely academic. What is clear is that the “but for” standard is
dispositive on a retaliation claim. See Septimus v. University of Houston, 399 F.3d at 608.
(Holding that the Fifth Circuit has “consistently held that in retaliation cases where the
defendant has proffered a nondiscriminatory purpose for the adverse employment action
the plaintiff has the burden of proving that ‘but for’ the discriminatory purpose he would not
have been terminated.”); Martin v. J.A.M. Distributing Co., 674 F.Supp.2d 822, 844 (E.D.
Texas 7/13/09) (“Under a pretext theory, to carry his ultimate burden, the plaintiff must
demonstrate that the adverse employment action would not have occurred “but for” the
employee's participation in the protected activity.”); Cooper v. Wal-Mart Transp., LLC, 662
F.Sup 757, 776 (S.D. Tex. 9/24/09) (“The standard of proof on the pretext element of a Title
VII retaliation claim is that the adverse employment action taken against the plaintiff would
not have occurred “but for” her protected conduct.”).
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employees in the disciplinary proceedings. However, this is irrelevant as to whether Sonnier
fired Corsentino because of the abovementioned activity.5 The only evidence that relates
to the causation between this presumed protected activity and Corsentino’s discharge is
Corsentino’s unsupported and self-serving testimony that Sonnier claimed he was going
to “get” him. Otherwise, the evidence shows that Corsentino was the local chairman of the
union for twelve years and admits that he represented “every boy in that Baton Rouge
yard,” not just the African American employees. (Record Document 710-2 at 8). It was only
after he committed a suspension worthy offense for the fifth time in four years that he was
ultimately discharged.6
In addressing the “but for” standard set out in Septimus, based on the evidence, the
Court cannot say that “but for” Corsentino’s representation of employees as a local
chairman and “but for” Corsentino’s alleged complaints of discrimination, he would not have

5

It is, in fact, unclear if Sonnier fired Corsentino at all. The only evidence Corsentino
supplies to the Court to show it was Sonnier who retaliated against him is, that when asked
whom he felt retaliated against him, Corsentino stated that it was Sonnier. (Record
Document 710-7 at 19). When asked what evidence he felt he had as to why it was
Sonnier, Corsentino opined that he felt it was Sonnier “because he was the superintendent,
he carried a lot of weight in the company.” See id.
Corsentino asserts that the factual findings of the Eastern District of Louisiana in
Turner v. Kansas City Southern Railway Company, No. 09-30558 (E.D. La. March 26,
2012) is binding on this Court in this matter. The Court does not believe, nor does
Corsentino supply any authority that establishes that it is bound by the factual findings of
Turner, as the case consisted of different plaintiffs, facts, and claims. Therefore, this Court
finds that the factual findings of Turner do not bind the Court in this matter.
6

In January of 2000, Corsentino received a five day deferred suspension for a
derailment. In January of 2002, Corsentino received another five day deferred suspension
for a derailment. In January of 2003, Corsentino received a three day suspension for a
switching incident. In February of 2003, Corsentino received a forty-five day suspension
for failing to operate an interlocker properly, which caused a derailment. Finally, in February
of 2004, Corsentino was discharged for another derailment. (Record Document 710-1 at
17).
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been discharged. This is because if one were to take away all of Corsentino’s involvement
with the union, the Court is left with the uncontroverted fact that Corsentino was guilty of
a suspension worthy offense five times in four years. (Record Document 710-2 at 13). It is
apparent from the evidence that this many suspension worthy offenses repeated this many
times in this short of a period creates a serious disciplinary record. Standing alone, this
record justifies Corsentino’s discharge. Therefore, this claim fails the “but for” test set out
in Septimus and the Court finds no causal connection between this alleged protected
activity and Corsentino’s discharge.7 While this is dispositive on Corsentino’s retaliation
claim, in an abundance of caution, the Court will complete the McDonnell Douglas
framework analysis.
Due to the dispositive nature of the “but for” standard in a retaliation claim, the
causation prong seems to have substantial overlap with the next two steps in the
McDonnell Douglas framework. The next step in the McDonnell Douglas framework is to
determine if KCS has a legitimate, non-discriminatory reason for discharging Corsentino.
Pfau v. Gilger, 211 Fed. Appx. 271, 272-273 (5th Cir. 2006). The final step is that “[i]f the
employer meets this burden, ‘any presumption of retaliation drops from the case’ and the
burden returns to the employee to show that the ‘stated reason is actually a pretext for
retaliation.’” Fierros v. Texas Dept. of Health, 2006 WL 870637, *2 (W.D. Tex. 3/31/06)

7

Further, it does not appear that, at the time of his discharge, Corsentino thought this
supposed protected activity was the cause of his discharge either. KCS alleges that
Corsentino drafted nine letters to KCS and his union regarding his discharge and not once
did he allege mistreatment based on any protected activity under Title VII. Rather, he
alleged his mistreatment was caused because he was the local chairman of the union.
(Record Document 730 at 8-9). Corsentino does not even address, let alone dispute, this
argument.
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(citations omitted) affirmed by Fierros v. Texas Dept. Of Health, 247 Fed. Appx. 478 (5th
Cir. 2007).
Through the analysis under the “but for” standard, it is apparent that KCS had a
legitimate, non-discriminatory reason for discharging Corsentino. It is undisputed that
Corsentino was guilty of five suspension worthy offenses in four years. (Record Document
710-1 at 8). It is further undisputed that this is the reason KCS gave Corsentino for his
discharge. KCS provides evidence that Corsentino’s discharge was upheld on two internal
appeals and that the International President of Corsentino’s own union found that, based
on his personal review of Corsentino’s record, Corsentino’s discharge was warranted.8
(Record Document 710-1 at 19). Further, the “but for” standard shows that the reason given
by KCS was not merely a pretext for retaliation because, as the Court has already held,
even without the protected activity, the discharge would have been warranted.
KCS has shown that a reasonable juror could not find that, but for the alleged
protected activity, the adverse employment action would not have occurred. Therefore,
summary judgment is appropriate for KCS on this retaliation claim. Further, since all Title
VII claims have been dismissed, Corsentino’s LEDL claim is also dismissed.
CONCLUSION
Corsentino has conceded his state law claims, age discrimination claim, race
discrimination claim, hostile work environment claim, and his desperate impact claim
because he has failed to address them in his opposition to summary judgment. Further,
8

Specifically, the union representative stated, “I have served on numerous Public
Law Boards and with the exception of the discipline in the case of [one of Corsentino’s coworkers], no Arbitrator would consider reinstatement for records such as I have listed
above.” (Record Document 710-14 at 33).
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Corsentino cannot prevail on his associational race discrimination claim as he cannot show
that any alleged discrimination was based on his race. Corsentino cannot prevail on his
retaliation claim as he cannot show that, but for his alleged protected activity, he would not
have been discharged.
Accordingly,
IT IS ORDERED THAT the foregoing motion (Record Document 710) be and is
hereby GRANTED. All of Corsentino’s claims against KCS 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 May, 2012.

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