Cargo et al v. Kansas City Southern Railway Co

Filing 867

MEMORANDUM RULING re 836 MOTION for Summary Judgment on the Claims of Group 16 Plaintiff, Michelle Holmes filed by Kansas City Southern Railway Co; 847 MOTION to Strike Certain Exhibits (2, 3, 4 and 7) Submitted by Group 16 Plaintiff, Michelle Holmes re 843 Memorandum in Opposition to Motion filed by Kansas City Southern Railway Co; [856-866] Motions in Limine.Signed by Judge S Maurice Hicks on 06/02/2014. (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 Michelle Holmes’
various employment discrimination claims (Record Document 836) filed by Defendant
Kansas City Southern Railway Company (“KCSR”). The motion conveys reasons for the
Defendant seeking dismissal of all claims raised by Holmes. Holmes, in opposition to
Defendant’s Motion for Summary Judgment, replies “Plaintiff has established a prima facie
case of discrimination and retaliation under the McDonnell Douglas framework.” Record
Document 843 at 3. Plaintiff concedes her hostile work environment and state law claims.
Id. at 12. For the reasons that follow, Defendant’s Motion for Summary Judgment is
GRANTED. Accordingly, all of Holmes’ claims are DISMISSED WITH PREJUDICE.

FACTUAL BACKGROUND
Michelle Holmes is an African American female. Record Document 836-1 at 1.
Holmes began to work at KCS as an Extra Board Clerk in Customer Service on February
18, 1998. In March 1998, Holmes assumed a more favorable position, as a Crew

Dispatcher. (SOF, ¶ 4).1 In August 2005, she sought and was awarded a position as a Clerk
in the diesel shop. (SOF, ¶ 6).
Crew Dispatchers serve the important role of communicating with crews to ensure
that trains are properly and fully manned and “mark off” employees, those that indicate that
they cannot appear as scheduled. The Crew Dispatchers then locate other crew members
to fill those positions. (SOF, ¶ 5). Following instructions from supervising employees is
essential to this role. To ensure that the responsibilities of the employees are known, KCSR
has rules and policies in place. Specifically, employees are required to follow instructions
from their supervisors and avoid conflicts of interest with KCSR and its interests. (SOF, ¶
19 & 21). Holmes received copies of the rules and policies and signed written
acknowledgments confirming her receipt of these documents. (SOF, ¶ 25). KCSR’s
discipline policy ensures that employees understand the consequences of failing to abide
by the rules, as well as the instructions of a supervisor. (SOF, ¶ 22-24).
In the instant matter, Holmes’ workplace history indicates repeated rules violations
accompanied by a progressive disciplinary record. On September 26, 2003, Holmes
admitted and acknowledged a rule violation, for which she received a formal reprimand.
(SOF, ¶ 27-29). On January 28, 2004, a second violation occurred when Holmes failed to
report to duty. Holmes signed an acknowledgment of this violation and received a fifteenday (15) suspension. (SOF, ¶ 32-34). On August 23, 2004, Holmes was notified by letter
of a formal investigation of her responsibility regarding her failure to perform her duties
when she “marked off” a conductor under false pretenses and failed to comply with

1

Statement of Facts (SOF) can be found at Record Document 836-2. The SOF used
in this matter are uncontested.
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instructions from supervisors in direct violation of KCSR’s rules. (SOF, ¶ 35). A formal
investigation into Holmes’ failure to perform her duties and comply with instructions was
held on September 16, 2004 with the Union (Transportation Communications International
Union – “TCU”) representing Holmes. During the investigation, Holmes testified and TCU
presented evidence and examined witnesses. (SOF, ¶ 36). On September 24, 2004,
Holmes was notified that she was found to have violated General Responsibilities 1.4, 1.6
and 1.13, for which she was issued a sixty-day (60) suspension. (SOF, ¶ 40).
In March 2006, Holmes again failed to follow KCSR’s rules and regulations when
she posted a flyer on Company bulletin boards to solicit for a law firm specializing in suits
against the railroad. (SOF, ¶ 44). After another investigation by the railroad, during which
time Holmes was represented by the Union, she admitted that she posted the law firm
flyers on a KCSR bulletin board. (Exhibit 3, Rec. Doc. 836-6)2. Plaintiff was dismissed for
violations of KCSR’s Code of Business Conduct and Ethics, Use of Information Resources
Policy, and certain provisions of KCSR’s General Code of Operating Rules (Chapter 1,
General Responsibilities). (SOF, ¶ 44).
Holmes appealed her dismissal to a Special Board of Adjustment (“SBA”), pursuant
to the applicable Collective Bargaining Agreement (“CBA”). (SOF, ¶45). The SBA, which
consisted of three members – a TCU member, a Company member, and a neutral chair
– issued its determination after a review of all the evidence, including the entire transcript
of testimony from the investigation. (SOF, ¶ 45). The SBA found that Holmes was in
noncompliance with KCSR’s General Code of Operating Rules, and was “acting as a

2

The Court notes that the Personnel File is a sealed exhibit and can be found in
Record Document 840.
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‘finder...for the benefit of a third party in transactions involving the Corporation or its
interests.’” (SOF, ¶ 47).
The SBA also found that Holmes “was at fault in utilizing a bulletin board set aside
by the Company for official Union business to promote an outside firm...The bulletin board
was not designated by [KCSR] as a site to be utilized by employees for any notices they
wished to post.” (SOF, ¶ 48). The SBA, though agreeing that rules and policies of the
Company had been violated by Holmes, nevertheless reinstated her, without back pay,
stating that “the time that [Holmes] has been withheld from service should be sufficient to
impress upon her the seriousness of her actions.” (SOF, ¶ 49). Holmes was off work from
April 2006 until March 2007 prior to her reinstatement by the SBA. (SOF, ¶ 50).
Holmes’ employment with KCSR ultimately ended on September 14, 2008 following
a dispute regarding whether Holmes provided false information on her original application
for employment with KCSR. A formal investigation was held, and ultimately, the SBA
upheld Holmes’ dismissal, stating as follows:
It must be concluded that her employment with [KCSR] was obtained under
false pretenses...In the final analysis, [KCSR’s] decision was not arbitrary,
capricious, or discriminatory. Its decision in regard to [Plaintiff] must stand.
(SOF, ¶ 68; Ex. 22, SBA Decision, 2nd Termination, p. 5).3
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

3

The Court notes that Holmes does not raise this second termination as an adverse
employment action on which any of her claims are based.
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entitled to judgment as a matter of law.”4 Quality Infusion Care, Inc. v. Health Care Serv.
Corp., 628 F.3d 725, 728 (5th Cir. 2010). “A genuine issue of material fact exists when the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” See
Id. “Rule 56[(a)] mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and on which that party
will bear the burden of proof at trial.” Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir.2004).
If the movant demonstrates the absence of a genuine dispute of material fact, “the
nonmovant must go beyond the pleadings and designate specific facts showing that there
is a genuine issue for trial.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th
Cir.2004). Where critical evidence is so weak or tenuous on an essential fact that it could
not support a judgment in favor of the nonmovant, then summary judgment should be
granted. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005).
LAW AND ANALYSIS
I. Discrimination Claim
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

4

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 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 v. CIBA Specialty Chemicals Corp., 492 F.3d at 593. Because Holmes has
not provided this Court with any direct evidence of discrimination, 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). Accordingly, Holmes must first establish
a prima facie case of discriminatory discharge by showing: (1) she belongs to a protected
class, (2) she was qualified for his position, (3) she suffered an adverse employment action,
and (4) similarly situated employees were treated more favorably. See Id.
It is clear, based on the facts presented in the instant matter, that the Plaintiff meets
the qualifications for the first three elements to establish a prima facie case of
discrimination. Accordingly, the Court’s decision will rest upon its determination of whether
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the fourth element was violated. The Plaintiff bears the burden of proving that, among other
things, she and her alleged comparators:
(1) held the same job or had the same duties and responsibilities;
(2) shared the same supervisor or had their employment status determined
by the same person;
(3) have essentially comparable violation histories; and
(4) that their conduct resulting in employment action was nearly identical.
Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009); Mayberry v. Vought
Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995); Perez v. Texas Dept. Of Criminal Justice,
Institutional Div., 395 F.3d 206, 213 (5th Cir. 2004); Jenkins v. State of La., Through Dep’t
of Corrs., 874 F.2d 992, 997 (5th Cir. 1989), cert. denied, 493 U.S. 1059 (1990) (“At all
times, Plaintiff bears the burden of proving that race was a ‘but for’ cause of the adverse
employment decision.”)
In her Third Supplemental Complaint, Holmes identifies two KCSR employees whom
she believes were treated more favorably than herself: Sharon Scott (“Scott”) and James
Smith (“Smith”). However, neither of these individuals were similarly situated to Holmes.
Smith held a variety of positions at KCSR, including stints in the following positions: Train
Dispatcher, Assistant Trainmaster, Manager of Network Services and an Enterprise
Workforce Management. (SOF, ¶ 123-126). Prior to working for KCSR, Smith served as
a Train Dispatcher for Midsouth Rail. (SOF, ¶ 122). None of these positions were the same
as the position held by Holmes, who served as an Extra Board Clerk, Crew Dispatcher, and
later as a Clerk in the diesel shop. Therefore, in accordance with the Fifth Circuit precedent,
Smith cannot be similarly situated to Holmes. See Lee, 574 F.3d at 259.
Scott is the other individual that Holmes claims is a similarly situated employee.
Scott, like Holmes, served as a Crew Dispatcher while she was employed at KCSR.
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However, Scott is distinguishable from Holmes. Scott was on a leave of absence in June
2004 and dismissed on September 23, 20045 during the time frame of Holmes’ investigation
and sixty-day suspension. (SOF, ¶ 114). Scott had three formal disciplinary actions during
her tenure with KCSR, all of which occurred prior to 2003. (SOF, ¶ 115). One of these
suspensions was for improperly marking off an employee, which is one of Holmes’
violations. However, Scott was suspended for her action, and this violation occurred prior
to the August 2004 written directives regarding “mark offs.” (SOF, ¶ 116). For these
reasons, the Court finds that Scott and Holmes are not “nearly identical” as required by the
Fifth Circuit. Lee, 574 F.3d at 259.
Holmes’ Fourth Supplemental Complaint makes the argument that “other
employees” violated similar rules and were not discharged for their conduct. Even with the
sworn affidavit of a fellow employee stating that other employees violated the rule but were
not fired, the requirement as established in Lee is not met because a direct comparator is
not named.
Because Holmes is unable to demonstrate that her duties, responsibilities or position
or her misconduct and violations were “nearly identical” to her alleged comparators, she
cannot demonstrate this element of proof to establish a prima facie case of discrimination
by KCSR. Accordingly, the Court finds that Summary Judgment on this claim of
discrimination is GRANTED.

5

Scott was separated from KCSR’s employ on September 23, 2004 for failure to
return to service following sick leave, which weighs heavily against any allegation that Scott
somehow was treated more favorably than Holmes. (SOF, ¶ 117). Scott was rehired in
2007, after Plaintiff’s Termination in 2006, but resigned in 2008. However, she had no
discipline in 2007 and 2008. (SOF, ¶ 119).
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III. Retaliation Claim
Like her discrimination claim, Holmes is unable to meet the burden required under
the McDonnell Douglas standard for a retaliation claim. In the instant matter, Holmes did
not file a charge with the EEOC until December 2004, which was after her 2003 and 2004
disciplinary actions. (SOF, ¶ 84). Holmes asserted in her EEOC charge that she was
retaliated against for exercising her rights under the applicable CBA to participate in a
formal investigation. (Ex. 10, EEOC Charge, dated November 30, 2004). In making this
unfounded assertion, Holmes fails to identify any protected activity for which there was
allegedly retaliation. Indeed, Holmes did not engage in any protected activity, which is
defined as “opposition to any practice rendered unlawful by Title VII, including making a
charge, testifying, assisting, or participating in any investigation, proceeding or hearing
under Title VII.” Ackel v. National Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003).
Holmes asserted in her Fourth Supplemental Compliant that she was dismissed on
April 14, 2006, in retaliation for filing charges of discrimination and a lawsuit against KCSR.
(SOF, ¶ 103). This allegation is a “protected activity,” as established in Ackel, supra.
However, Holmes fails to identify any evidence of a causal connection between the
protected activity and her dismissal. Rather, the evidence proves a different story, as
Holmes filed the suit in January 2005 but was not dismissed until April 2006. (SOF, ¶ 44
& 90). Additionally, a third-party neutral chair of the SBA found that Holmes violated KCSR
rules and policies and affirmed a year-long unpaid suspension. (SOF, ¶ 48).
The Fifth Circuit has established that the “but-for” standard requires much more in
the way of proof. Finnie v. Lee County, Miss., 541 Fed.Appx. 368 (5th Cir. 2013). Merely
asserting that the alleged protected activity took place and that an adverse employment
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action took place over a year later fails to create a causal connection. In this instance,
Holmes fails to demonstrate any causal link whatsoever between any alleged protected
activity and any adverse employment action. Holmes therefore fails to meet the “but-for”
showing required under the standard established in University of Texas Southwestern
Medical Center v. Nassar, 133 S. Ct. 2517, 2528 (2013). Accordingly, Summary Judgment
is GRANTED on this claim.
III. Hostile Work Environment Claim
In her opposition of summary judgment, Holmes fails to address any hostile work
environment and failure to promote claims and therefore fails to meet her summary
judgment burden. Celotex Corp. V. Catrett, 477 U.S. 317. 333 n.3 (1986). Accordingly,
Summary Judgment is GRANTED on these claims.
IV. State Law Claims
In her opposition of summary judgment, Holmes fails to address these claims at all
and therefore, she fails to meet her summary judgment burden. Celotex Corp. V. Catrett,
477 U.S. 317. 333 n.3 (1986). Accordingly, Summary Judgment is GRANTED on all state
law claims.
V. Pending Motions to Strike Certain Exhibits
Also pending before the Court is a Motion to Strikes Certain Exhibits (2, 3, 4 and 7)
Submitted by Group 16 Plaintiff, Michelle Holmes filed by KCSR. Record Document 847.
The Motion is DENIED.
CONCLUSION
Based on the foregoing analysis, the Court finds that Plaintiff Michelle Holmes

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abandoned her hostile work environment and state law claims. Additionally, Holmes has
failed to provide sufficient competent summary judgment evidence to raise a genuine
dispute of material fact that Holmes endured discrimination and/or retaliation under the
framework provided by the United States Supreme Court in McDonnell Douglas Corp. V.
Green, 411 U.S. 792 (1973).
Accordingly, IT IS ORDERED that the foregoing Motion for Summary Judgment filed
by Defendant KCSR [Record Document 836] be and is hereby GRANTED. All of Plaintiff’s
claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendant’s Motion to Strike Certain Exhibits
Submitted by Group 16 Plaintiff Michelle Holmes in Opposition to KSCR’s Motion for
Summary Judgment [Record Document 847] be DENIED. The pending Motions in Limine
[Record Documents 856-866] are hereby DENIED AS MOOT.
A Judgment consistent with the terms of the instant Memorandum Ruling shall issue
herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 2nd day of June, 2014.

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