Cargo et al v. Kansas City Southern Railway Co

Filing 737

MEMORANDUM RULING re 721 MOTION for Summary Judgment on Plaintiff Leo Tolbert's Claims filed by Kansas City Southern Railway Co. Signed by Judge S Maurice Hicks on 05/15/2012. (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 Plaintiff Leo Tolbert’s
(“Tolbert”) various discrimination claims filed by Defendant Kansas City Southern Railway
Company (“KCS”). (Record Document 721)

The motion conveys reasons for the

Defendant seeking dismissal of all claims raised by Tolbert. Tolbert, in opposition to
Defendant’s Motion for Summary Judgment, expressly concedes all of his claims except
for his discriminatory discipline and constructive discharge claims. (Record Document 725).
For the reasons that follow, Defendant’s Motion for Summary Judgment is GRANTED.
Accordingly, all of Tolbert’s claims of are DISMISSED.
FACTUAL BACKGROUND
Tolbert is an African American male. (Record Document 721-2 at 1). He was
employed by KCS beginning in 1972 until he retired in September of 2003. (Record
Document 725 at 4). Tolbert was hired as a trackman but was promoted to foreman in
1978, brakeman in 1980, and conductor in 1993. See id. He worked as a conductor until
his retirement. During the last few years at KCS, Tolbert was disciplined on four occasions.
In 2002, Tolbert received a deferred three day suspension for falsifying a work order and
a reprimand for mishandling a train. (Record Document 721-1 at 15). In 2003, Tolbert

received a deferred thirty day suspension and a one day developmental training for “failing
to print out and/or select the proper paper work, which resulted in improper switching.” Also
in 2003, Tolbert received one day of employee development training. (Record Document
721-1 at 15-16).
Tolbert alleges that in his time at KCS, he was “subjected to repeated, undeserved
discipline” and “other Caucasian employees were not disciplined for substantially similar
conduct.” See id. Further, he alleges that he was forced into retirement “because of
continual investigations, reprimands, and discipline to which he was subjected.” (Record
Document 725 at 9).
Following his retirement, Tolbert 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. Tolbert was placed in group nine by himself as
he worked as a brakeman on the Train Crew in Baton Rouge. (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.
Corp., 628 F.3d 725, 728 (5th Cir. 2010). “A genuine issue of material fact exists when the

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.
F.R.C.P. 56(a) and advisory committee’s note (emphasis added).
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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. 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
(1973). Nasti, 492 F.3d at 593. Tolbert has not provided the Court with any direct evidence

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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, Tolbert 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 facie 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 employees Tolbert has offered to the Court are Dale
Laurendine (“Laurendine”) and Dale Burns (“Burns”). (Record Document 725 at 7). In
determining if Laurendine is similarly situated to Tolbert, Tolbert simply states, “Mr.
Laurendine was similarly situated to Mr. Tolbert. Mr. Laurendine had problems with the
computer system resulting in improper paperwork” but was not disciplined for these
incidents. (Record Document 725 at 7). However, in his deposition, Tolbert admits “he had
more problems with the computer system than Laurendine did.” (Record Document 721-2
at 27). Tolbert also admits that he “could not identify the time frame during which
Laurendine allegedly had the problems with the computer.” See id. At no point has Tolbert
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provided this Court with any information as to who Laurendine’s supervisor was, what his
position was, what his responsibilities were, or even what his disciplinary history was.
Therefore, there is no evidence that shows that Laurendine was similarly situated to Tolbert
and he is not a proper comparator.
Tolbert alleges Burns is also a proper comparator. Tolbert alleges that Burns was
a switchman with KCS “who had a similar employment record as Mr. Tolbert.” (Record
Document 725 at 7). Tolbert further states that Burns had “similar responsibilities to Mr.
Tolbert and he was disciplined under the same rules and the same supervisors.” (Record
Document 725 at 8). Tolbert does not cite to the record at any point in his discussion of
Burns. According to information supplied by KCS, Burns began working at KCS in 1991,
roughly nineteen years after Tolbert. (Record Document 728 at 5). Burns received three
formal disciplinary actions between June of 2000 and June of 2003. (Record Document
721-2 at 28). One of those actions was a reprimand and the other two were suspensions.
Burns was terminated by KCS in June of 2006. It is undisputed that Tolbert “could not
provide any specific instances where Burns was treated more favorably than Tolbert was
treated.” (Record Document 721-2 at 27). It is unclear how Burns “received less discipline
than Mr. Tolbert” as Tolbert has provided no evidence in the record to back this proposition.
(Record Document 725 at 8). Tolbert has not even alleged what it is that Burns did to
receive disciplinary action.
Moreover, between June of 2000 and June of 2003, Tolbert received two deferred
suspensions, a reprimand, and two developmental training days as discipline for various
actions. It is unclear how Burns’ disciplinary record is more favorable than Tolbert’s.
Regardless, the fact the Court has not been provided any evidence regarding what job
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responsibilities Burns had, who disciplined Burns, who supervised Burns, or what rules
Burns violated prevents the Court from finding him to be similarly situated to Tolbert.
Based on the record before the Court, there is not sufficient evidence for a
reasonable juror to find that Burns or Tolbert are proper comparators for a discriminatory
discipline action. Therefore, Tolbert cannot establish a prima facie case for discriminatory
discipline and, under the McDonnell Douglas analysis, the Court’s inquiry stops here.
Summary Judgment is appropriate for KCS on this claim.
ii. Constructive Discharge
Tolbert alleges that he was constructively discharged when he retired one year after
he was eligible for retirement. In a constructive discharge claim, a plaintiff is “required to
satisfy the stringent test for constructive discharge.” Ranel v. Gilley Enterprises-Louisiana
Partnership, 2009 WL 1310879, *4 (W.D.La.,2009) (citations omitted). “A constructive
discharge has occurred when an employee resigns after ‘the employer made the
employee's working conditions so intolerable that a reasonable employee would feel
compelled to resign.’ ” Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th Cir.1994).
“[T]o succeed on a constructive discharge claim, the plaintiff must show a greater degree
of harassment than is required for a hostile work environment claim.” Thomas v. Atmos
Energy Corp., 223 Fed. Appx. 369, 377 (5th Cir. 2007); citing Hockman v. Westward
Communs., LLC, 407 F.3d 317, 332 (5th Cir.2004).
“In determining whether an employee has been constructively discharged, courts
consider the following factors relevant, singly or in combination: (1) demotion; (2) reduction
in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work;
(5) badgering, harassment, or humiliation by the employer calculated to encourage the
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employee's resignation; or (6) offers of early retirement that would make the employee
worse off, regardless of whether the offer was accepted.” Vallecillo v. U.S. Dept. of Hous.
& Urban Dev., 155 F. App'x 764, 768 (5th Cir. 2005).
In only two paragraphs of argument, Tolbert states that he was “continually
reprimanded, investigated, and disciplined at work.”2 (Record Document 725 at 10).
Further, Tolbert alleges that A.J. Sonnier, Tolbert’s superior at KCS, “harassed” him in the
yard.3 See id. Other than these two statements, Tolbert offers no evidence in the record to
show how he was compelled to resign from KCS. KCS, however, asserts that over the
course of twenty years at KCS, Tolbert “received four reprimands, two deferred
suspensions, and one actual suspension, and during that same time frame, he attended
only four formal investigations.” (Record Document 728 at 7). That amounts to only seven
notices of rule infractions. Further, in that time, he only actually served one three day
suspension. See id.
In Vallecillo, the Fifth Circuit affirmed a district court’s dismissal of a constructive
discharge claim noting that the plaintiff was not demoted and his salary was not reduced.
Vallecillo v. U.S. Dept. of Hous. & Urban Dev., 155 F. App'x at 768. Likewise, Tolbert has
not alleged that his job duties and salary were effected, in any way, by this alleged
“harassment.” Rather, Tolbert voluntarily retired, with full benefits, including a pension.

2

Tolbert cites to this portion of KCS’s Statement of Material Facts: “When asked
specifically about the facts supporting his constructive discharge claim, Tolbert testified as
following: ‘simply because they kept – every time I turned around they was saying I, you
know did this or did that….every time I turn around I was in an investigation, or reprimand
or something, you know, about, you know, different things.’ ” (Record Document 721-2 at
32).
3

Tolbert cites to this portion of KCS’s Statement of Material Facts: “According to
Tolbert, Sonnier would say things to him out in the yard, but he admitted that Sonnier was
addressing performance issues.” (Record Document 721-2 at 32).

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A hostile work environment claim is viable “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)). A constructive
discharge claim requires an even greater degree of harassment by the defendant. The
unsupported and contradicted allegations that KCS continually investigated Tolbert and that
Sonnier would say things to Tolbert about performance issues in the yard clearly do not
meet this standard. The record shows that Tolbert only attended four formal investigations
over a twenty year period at KCS and only received a total of seven rule infraction notices.
The record further shows that Sonnier only discussed performance related issues with
Tolbert in the yard. Finally, it is undisputed that Tolbert’s job duties, salary, and retirement
benefits were not altered by any of this alleged “harassment.” The Court finds that these
actions do not show that KCS made Tolbert’s working conditions so intolerable that a
reasonable employee would feel compelled to resign. Therefore, summary judgment is
appropriate for KCS on this claim.

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CONCLUSION
Based on the foregoing analysis, the Court finds that Plaintiff Leo Tolbert has
abandoned all claims, save his discriminatory discipline and constructive discharge claim.
Additionally, Tolbert has failed make a prima facie showing of discriminatory discharge as
he has not provided the Court with a single comparator who is similarly situated to himself.
Further, Tolbert cannot meet his burden regarding his constructive discharge claim as a
reasonable juror could not find that KCS made his working conditions so intolerable that
a reasonable employee would feel compelled to resign.
Accordingly,
IT IS ORDERED THAT the foregoing motion (Record Document 721) 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 15th day of May, 2012.

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