Cargo et al v. Kansas City Southern Railway Co

Filing 913

MEMORANDUM RULING re 898 MOTION in Limine To Exclude All Testimony, Evidence And Argument Regarding Comments, Events, Conduct Or Claims That Are Barred By the Statutes of Limitations filed by Kansas City Southern Railway Co, 896 M OTION in Limine To Exclude All Testimony, Evidence, And Argument Regarding Plaintiff's Claims That Have Been Dismissed Or Conceded filed by Kansas City Southern Railway Co, 894 MOTION in Limine Prohibiting All Testimony, Evidenc e and Argument Regarding Allegations, Lawsuits, Settlements or Charges Concerning Claims Other Than Those of The Group 18 Plaintiff Tammye Stinson filed by Kansas City Southern Railway Co, 874 MOTION for Summary Judgment on the Claims o f Group 18 Plaintiff, Tammye Stinson filed by Kansas City Southern Railway Co, 893 MOTION in Limine Regarding Defendant's Net Worth, Gross Revenue and Assets filed by Kansas City Southern Railway Co, 901 MOTION in Limine To Preclude Plaintiff And Her Counsel From Using Documents That Were Not Previously Produced Pursuant To Rule 26 And The Pretrial Scheduling Order Of The Court filed by Kansas City Southern Railway Co, 902 MOTION in Limine To Exclud e All Testimony, Evidence, And Argument Regarding Locations And Departments Of KCSR Other Than The Customer Service Center filed by Kansas City Southern Railway Co, 895 MOTION in Limine To Exclude Plaintiff and Her Counsel From Making A ny Reference To Or Discussing Punitive Damages During Voir Dire or Opening Statement filed by Kansas City Southern Railway Co, 897 MOTION in Limine To Exclude All Testimony, Evidence, And Argument Regarding Alleged Discriminatory Commen ts, Conduct and Events About Which Plaintiff Lacks Personal Knowledge filed by Kansas City Southern Railway Co, 900 MOTION in Limine To Exclude Evidence And Arguments Regarding Alleged Discriminatory Actions That Are Not The Subject Of The Group 18 Plaintiff's Claims filed by Kansas City Southern Railway Co, 899 MOTION in Limine Prohibiting All Testimony, Evidence, And Arguments Regarding Stray Remarks filed by Kansas City Southern Railway Co, 903 MOTI ON in Limine To Preclude Plaintiff And His Counsel From Calling Any Individual Included In Plaintiff's Witness List Who Was Not Disclosed Pursuant To Law And The Court's Scheduling Order As To Group Eighteen filed by Kansas City So uthern Railway Co, 884 MOTION to Strike Exhibits 1, 4, 5, 6, and 7 attached to 882 Memorandum in Opposition to Motion for Summary Judgment filed by Kansas City Southern Railway Co, 904 MOTION in Limine To Exclude All Testimony, Evidence And Argument Regarding Individuals Who Are Not Similarly Situated To the Group 18 Plaintiff, Tammye Stinson filed by Kansas City Southern Railway Co. Signed by Judge S Maurice Hicks on 12/04/2014. (crt,McDonnell, D)

IUNITED 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 Tammye Stinson’s
(“Stinson”) various employment discrimination claims (Record Document 874) filed by
Defendant Kansas City Southern Railway Company (“KCSR”). The motion conveys
reasons for KCSR seeking dismissal of all claims raised by Stinson. Stinson, in opposition
to KCSR’s Motion for Summary Judgment, replies “Plaintiff has established a prima facie
case of retaliation/ failure to interview for promotion” under the McDonnell Douglas
framework.” Record Document 882 at 3. Stinson further argues she has established her
hostile work environment claim. Id. at 4. Stinson concedes her state law claims. Id. at 8.
For the reasons that follow, KCSR’s Motion for Summary Judgment is GRANTED.
Accordingly, all of Stinson’s claims are DISMISSED WITH PREJUDICE.
FACTUAL BACKGROUND
Stinson is an African American female. Record Document 874-2 at 1. She began to
work at KCSR as an Extra Board Clerk in Customer Service on December 30, 1996. On
March 28, 1997, Stinson became a full time Customer Service Representative in the
Customer Service Center (CSC). (SOF, ¶ 4).
As a Customer Service Representative in the CSC, Stinson’s job duties and

responsibilities included handling customer calls and locating cars and the schedule of
transport of specific cars about which customers inquire. (SOF, ¶ 6). As a Clerk in the CSC
at KCSR, Stinson was a member of the Transportation Communications International Union
(“TCIU”), who was a signatory to a Collective Bargaining Agreement (“CBA”) with KCSR.
(SOF ¶7).
KCSR had and has various rules and policies in place governing safety, operating
procedures and the responsibilities and job performance of employees. (SOF, ¶ 20). KCSR
also had rules and policies in place governing computer usage, prohibiting discrimination
and harassment of employees on any basis whatsoever as well as safety which rules
include but are not limited to the Use of Information Resources Policy, Anti-Harassment
Policy, Business Ethics and Compliance Policy, Safety Through Awareness and
Responsibility (STAR), the General Code of Operating Rules and General Responsibilities.
(SOF, ¶ 21). Stinson received copies of various rules and policies in effect, at the time she
was hired and at various times during her tenure with KCSR, including rules prohibiting
harassment and retaliation, and she signed written acknowledgments confirming the receipt
of these rules. (SOF, ¶ 27).
In the instant matter, Stinson was subject to formal discipline on one occasion.
(SOF, ¶ 36). According to KCSR’s records, the computer and email usage of some 300
employees were reviewed during the first round of email audits in the fall of 2002. (SOF,
¶ 37). According to KCSR records, Stinson was included in the employees reviewed in the
2002 Email Audit. (SOF, ¶ 39). On December 11, 2002, Stinson was notified, by letter, of
a formal investigation scheduled for December 17, 2002, to ascertain her “responsibility,
if any, in connection with: 1) [her] alleged improper use of company electronic mail; 2) [her]
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alleged inappropriate behavior; 3) [her] alleged failure to devote [herself] to [her] duties; and
4) [her] alleged transmittal of sexually explicit and sexually suggestive material via KCS’s
electronic equipment.” (SOF, ¶ 40). On December 12, 2002, Stinson signed a waiver and
acknowledgment accepting full responsibility for this incident and admitting to violations of
General Responsibilities Rules, Information Resources Acceptable Use Policy and the
Anti-Harassment Policy, and waiving her right to a formal investigation. (SOF, ¶ 41).
Pursuant to the acknowledgment and waiver, Stinson was issued a 30-day suspension.
(SOF, ¶ 42).

Stinson’s email audit file included inappropriate and suggestive

correspondence in violation of KCSR policies, an example of which is an email transmitted
by Stinson entitled “MY SCORE WAS 72” which she forwarded to individuals within the
KCSR email system. (Ex. 13, Stinson Email, D060336-D060340). This email refers to a
game to play to “see how bad you are!!!” Id. The questions reference explicit sexual
activities such as “oral sex,” “screwed someone,” “screwed something,” and “had sexual
fantasies” as well as other inappropriate subjects. (SOF, ¶ 43). Stinson admitted at her
deposition that “sending or receiving sexually suggestive emails during this time period in
time was a violation of Kansas City Southern’s company policies.” (SOF, ¶ 45).
Stinson was subject to some coaching via email from Amanda Jenson, Manager of
Customer Service. In June of 2005, Ms. Jenson sent email correspondence to Stinson and
three other employees regarding their missed calls with a ROMAN Monitor record showing
that Stinson had three abandoned calls. (SOF, ¶ 48). In March of 2006, Stinson received
email correspondence from Ms. Jenson regarding a work order that had not been
completed and entered into the system. (SOF, ¶ 50). While coached, Stinson received no
discipline for either of these violations. (SOF, ¶ 51).
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Stinson remained employed with KCSR until the CSC department was transferred
from Shreveport, Louisiana, to Kansas City, Missouri, at which point she declined to follow
her position. (SOF, ¶ 5). Stinson was furloughed in April 2009 due to her decision. (SOF,
¶ 8). Stinson remained on furlough until such time as her union seniority expired under the
CBA on June 10, 2011. (SOF, ¶ 9). Stinson filed a grievance and appealed the furlough,
through the UTU, the Union in which she was a member, pursuant to the CBA and law, in
an effort to retain her position in Shreveport, Louisiana, because she admittedly liked her
job. (SOF, ¶ 10).
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
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

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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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.

Failure to Promote and Discriminatory Discipline Claims

Stinson has filed claims based on failure to promote and discrimination based upon
discipline received. There are two separate standards this Court must use in analyzing the
claims. The Court will address the failure to promote claim first.
To establish a prima facie case of failure to promote under the McDonnell Douglas
standard, Stinson must prove that: (1) that the employee is a member of [a] protected
class; (2) that she sought and was qualified for the position; (3) that she was rejected for
the position; and (4) that the employer continued to seek or promoted applicants with
plaintiff’s qualifications who was not in the protected class. Culbert v. Cleco Corp, 926
F.Supp.2d at 893-894 (citing, Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 317 (5th
Cir. 2004)); see also Pegram v. Honeywell, Inc., 361 F.3d 272, 281 (5th Cir. 2004). It is
clear, based on the facts presented in the instant matter, that Stinson meets the
qualifications for the first element to establish a prima facie case. Accordingly, the Court’s
decision will rest upon its determination of whether the second, third, and fourth elements
were violated.
1999 “Hold Down” Position
In her Third Supplemental Complaint, Stinson states that in 1999 a position opened
with more favorable work hours (day shift with weekends off) and Stinson was passed over
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despite having two years more seniority than Allen Ewing, a white male, who was awarded
the position. Record Document 29-3. The position in question in 1999 was a “temporary
hold-down,” which KCSR has described as a temporary change in scheduled work hours.
Record Document 874-1.
Title VII requires that there be an actionable adverse employment action in order for
there to be a violation. See Thompson v. City of Waco, Texas, 764 F.3d 500, 508-09 (5th
Cir. 2014). The summary judgment record establishes that “[T]he referenced ‘hold down’
position is not a promotion but merely a temporary change in scheduled work hours. The
individual given a ‘hold down’ fills a known temporary vacancy for five days or more, for
example, when a full time employee takes a vacation for five days or more.” (SOF, ¶ 68).
In order for there to be a failure to promote, there must be a promotion available. The fact
that the “hold down” is a temporary change in scheduled work hours is not enough to
constitute a promotion. Benningfield v. City of Houston, 157 F. 3d 369, 377 (5th Cir. 1998)
(holding that merely changing an employee’s working hours, without more, does not
constitute an adverse employment action). Without there being a promotion available,
Stinson cannot prove that KCSR failed to promote her in 1999.
2003 Promotion
Stinson additionally states that she applied for a promotion in 2003, when she had
six or more years of experience and successful performance; however, the job was given
to a younger white male who had worked for the company for less than a year. Id. KCSR
stated in its Motion for Summary Judgment that it has no record showing Stinson applied
for any promotion during her employment. Record Document 874-1. Stinson attached a
copy of an email she claims to be an application for a promotion within KCSR. Record
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Document 882-4. The first element having been satisfied, Stinson must show that she
applied for and was qualified for the position. It is disputed whether Stinson actually
applied for the “promoted position”; however, assuming she did apply, there is no evidence
that she was qualified for the “promoted position.” Third, Stinson must show that she was
rejected for the position. KCSR argues that a person cannot be rejected if they did not
apply for a job in the first place. With no record of Stinson’s application for a promotion,
the Court agrees she was never rejected. The final element is a showing that the employer
continued to seek or promoted applicants with plaintiff’s qualifications who were not in the
protected class. It has been shown through KCSR records that the disputed position was
filled by Mr. A.J. Randolph, who is African-American. Record Document 874-1. Stinson
cannot overcome this fourth element because the individual who was ultimately given the
promotion was a member of the same protected class as Stinson, African-American.
The court now moves to Stinson’s discriminatory discipline claim. In order to meet
her burden of establishing a prima facie case of unlawful discrimination based upon
discipline, Stinson must show that KCSR gave preferential treatment to another similarly
situated employee outside of her protected class under “nearly identical” circumstances.
Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991) This requires that Stinson
provide a comparator who was a similarly situated employee outside of her class who had
a “nearly identical” circumstance. She has not offered any comparators who violated the
KCSR IT policy. Without any comparators, she cannot establish a prima facie case of
unlawful discrimination based upon discipline.
Even if Stinson were able to establish a prima facie case of discrimination, KCSR
has provided a legitimate and non-discriminatory reason for her discharge. Stinson’s
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violation of KCSR’s computer and email policy resulted in her being disciplined; however,
Stinson’s employment was terminated only after she chose not to relocate to Kansas City
with her job, and her furlough expired. Stinson failed to present evidence linking her
termination to anything other than her choice not to relocate with her job to Kansas City.
Under the McDonnell Douglas framework, the burden now shifts to Stinson to prove
KCSR’s reason for discharge was pretextual. The burden Stinson carries at this point in
the Court’s analysis is to show that this reason is “unworthy of credence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133,144, 120 S.Ct. 2097 (2000). Stinson fails
to meet this burden. In this instance, Stinson does not put forth any evidence that the
dismissal had a discriminatory purpose.
Stinson, therefore, has failed to prove the prima facie elements of her discrimination
based upon discipline claim. She failed to show a similarly situated employee was treated
more favorably than she was. Additionally, even if she had met her burden, KCSR has
sufficiently proved a legitimate, non-discriminatory reason for Stinson’s discharge. For this
reason, summary judgment in favor of KCSR is appropriate.
Based on the foregoing, KCSR’s motion for summary judgment is GRANTED as to
Stinson’s failure to promote and discriminatory discipline claims.
II.

Retaliation Claim

In order to establish a prima facie case of retaliation, Stinson must prove that: (1)
she engaged in a protected activity, (2) she suffered an adverse employment action, and
(3) a causal link existed between the protected activity and the adverse employment action.
McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir.2007).

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Stinson asserted in her Third Supplemental Compliant that she filed complaints with
the EEOC about discrimination against her in 2003 and 2004, and that following her not
receiving the position in 1999, the EEOC deemed the action to be discrimination. (SOF, ¶
82). This allegation qualifies as a “protected activity,” as established in Ackel v. National
Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003). However, Stinson fails to identify any
evidence of a causal connection between the protected activity and her dismissal. Rather,
the evidence proves a different story, Stinson simply chose not to follow her job when it
was relocated to Kansas City. (SOF, ¶ 8). Accordingly, Summary Judgment is GRANTED
on this claim.
III.

Hostile Work Environment Claim

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 her
claim for a hostile work environment, Stinson or a plaintiff must show that:
1)she belongs to a protected class; 2) she was subjected to
unwelcome harassment; 3) the harassment was based on
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
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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 summary judgment record, Stinson has failed to meet that burden. She rests
her hostile work environment claim on five separate instances that she claims, in the
aggregate, amount to a hostile work environment: 1) she was called to testify in
investigations of other African-Americans at KCSR; 2) she was a witness to a namecalling incident involving Sharon Kennedy and was called to testify about an exchange
between Sharon Kennedy and Jim Canada in which Kennedy was called names; 3) she
has been repeatedly denied promotion based on race; 4) she applied for promotion in 2003
when she had 6 or more years of experience and successful performance, for a manager
of customer services position and was denied; and 5) she filed complaints with the EEOC
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about discrimination against her in 2003 and 2004.
In order for any of these five events to be probative for a hostile work environment
claim, they must first be seen as harassment and the harassment must be based on
Stinson’s race. The first claim, regarding her having to “testify in investigations of other
African-Americans at KCSR”, provides no evidence that her having to testify was based on
her race, and merely being asked to testify does not show evidence of harassment. For
these reasons, it does not appear that Stinson being required to testify in the investigations
of other African-Americans constituted harassment. Even if the court were to assume this
constituted harassment, Stinson has offered no evidence that such harassment was based
on her race. The second claim, that Stinson was a witness to name calling of Sharon
Kennedy and was called to testify about an exchange she witnessed, is not probative
either. Again, the Court finds that this event, as a matter of law, does not amount to
harassment, but even if it qualified as harassment, Stinson has not even attempted to show
how this “harassment” was tied to her race.
The third and fourth claims are related to Stinson being “repeatedly” denied a
promotion based upon her race. This Court has addressed these claims previously in the
instant ruling. Moreover, Stinson has failed to demonstrate how the denial of a promotion
amounts to a hostile work environment, as defined in Fifth Circuit jurisprudence.
The fifth claim is that she filed complaints with the EEOC about discrimination
against her in 2003 and 2004. Stinson provides no further evidence identifying what events
caused her to file the complaints. Without more information, there is not sufficient evidence
for this Court to conclude that there was harassment in the workplace. Once again, even
if it qualified as harassment, Stinson has not shown how this “harassment” was tied to her
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race.
Even if Stinson’s claims were deemed to meet the requirements of a hostile work
environment, they would have to be severe and pervasive. Stinson has provided no
evidence that any of the above five events were severe and pervasive, under the Circuit’s
standard set forth above.
Therefore, without any evidence of how the above events are linked to her race,
Stinson’s hostile work environment claim must fail as she cannot meet her

prima

facie burden of proof.
IV. State Law Claims
Stinson has conceded her state law claim. 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 Strike Certain Exhibits (1, 4, 5, 6 and
7) Submitted by Group 18 Plaintiff, Tammye Stinson filed by KCSR. Record Document 884.
The Motion is DENIED.
CONCLUSION
Based on the foregoing analysis, the Court finds that Plaintiff Tammye Stinson
abandoned her state law claims. Additionally, Stinson has failed to provide sufficient
competent summary judgment evidence to raise a genuine dispute of material fact that she
was subjected to a hostile work environment and 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).

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Accordingly,
IT IS ORDERED that the Motion for Summary Judgment filed by Defendant KCSR
[Record Document 874] 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 18 Plaintiff Tammye Stinson in Opposition to KSCR’s Motion for
Summary Judgment [Record Document 884] be DENIED.
Additionally, the pending Motions in Limine [Record Documents 893-904] are
hereby DENIED AS MOOT.
An order consistent with the terms of the instant Memorandum Ruling shall issue
herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 4th day of December,
2014

________________________________
S. MAURICE HICKS, JR.
UNITED STATES DISTRICT JUDGE

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