UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 09-30558
_______________________
THOMAS TURNER,
Plaintiff-Appellant,
v.
KANSAS CITY SOUTHERN RAILWAY CO.,
Defendant-Appellee.
____________________________________________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
THOMAS TURNER,
Intervenor-Appellant,
v.
KANSAS CITY SOUTHERN RAILWAY CO.,
Defendant-Appellee.
________________________________________________
On Appeal from the United States District Court
for the Eastern District of Louisiana
________________________________________________
REPLY BRIEF OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
_________________________________________________
JAMES L. LEE EQUAL EMPLOYMENT OPPORTUNITY
Deputy General Counsel COMMISSION
LORRAINE C. DAVIS Office of General Counsel
Acting Associate General Counsel 131 M Street, N.E., 5th Floor
Washington, DC 20507
VINCENT J. BLACKWOOD (202) 663-4721
Assistant General Counsel fax: (202) 663-7090
barbara.sloan@eeoc.gov
BARBARA L. SLOAN
Attorney
TABLE OF CONTENTS
Page(s)
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 25
EXHIBIT I. . . . . . . . . . . . . . . . . . . . . . . . . . 26
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 28
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
Page(s)
CASES
Green v. Johnson,
160 F.3d 1029 (5th Cir. 1998) . . . . . . . . . . . . . . 10
Lee v. Kansas City Southern Railway Co.,
574 F.3d 253 (5th Cir. 2009). . . . . . . . . . . . . . . 3
Mato v. Baldauf,
267 F.3d 444 (5th Cir. 2001). . . . . . . . . . . . . 22-23
Mayberry v. Vought Aircraft Co.,
55 F.3d 1086 (5th Cir. 1995). . . . . . . . . . . . . 3, 23
McDonald v. Santa Fe Trail Transportation Co.,
427 U.S. 273 (1976) . . . . . . . . . . . . . . . . 3-6, 19
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . 3-4
McKennon v. Nashville Banner Publishing Co.,
513 U.S. 352 (1995) . . . . . . . . . . . . . . . . . . . 23
Perez v. Texas Dep't of Criminal Justice,
395 F.3d 206 (5th Cir. 2004). . . . . . . . . . . . . 3, 5-6
Reeves v. Sanderson Plumbing Products,
530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . 6
Roberson v. Alltel Information Systems,
373 F.3d 647 (5th Cir. 2004). . . . . . . . . . . . . 6, 23
St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993) . . . . . . . . . . . . . . . . . . 2-3
Slocum v. Delaware, Lackawanna & Western Railroad, Co.,
339 U.S. 239 (1950) . . . . . . . . . . . . . . . . . . . 24
Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981) . . . . . . . . . . . . . 3, 5, 6-7, 22
STATUTES AND RULES
Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq.. . . . . . . . . . . . . passim
Federal Rule of Appellate Procedure 28(a)(9)(A). . . . . . . . 10
Federal Rule of Evidence 803(6). . . . . . . . . . . . . . 21-22
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 09-30558
_______________________
THOMAS TURNER,
Plaintiff/Intervenor-Appellant,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
v.
KANSAS CITY SOUTHERN RAILWAY,
Defendant-Appellee.
_________________________________________________
On Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________
REPLY BRIEF OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
__________________________________________________
INTRODUCTION
In our opening brief, we argued that summary judgment for Kansas City
Southern was inappropriate on two main grounds. First, ample record evidence
supports a prima facie case regarding Turner, Thomas, Frank, and Cargo under
one or more tests. Second, KCS failed to carry its burden of producing evidence
of why the decisionmaker, J.R. Thornell, chose to discipline these four individuals
more severely than white employees for the same or comparable conduct.
KCS's appellee brief fails to respond meaningfully to these arguments. The
brief opens with a lengthy attack on the Commission relating to issues that are not
relevant to this appeal. The brief closes with an 800+-word "Exhibit" containing
only unsupported argument — circumventing both the word limit and the
requirement that argument be supported by citations to the record. Between these
endpoints, the brief does two things. It asserts what KCS wishes the record
showed — that is, that there is evidence of why the black employees were
disciplined more severely than their white counterparts. In lieu of evidence, the
company relies on assertions of counsel unsupported by citation, testimony of non-
decisionmakers, and documents that do not support the cited proposition. The
brief also offers convincing responses to arguments the Commission did not make
while ducking arguments we did make. Accordingly, as discussed more fully
below, KCS's brief does not support the grant of summary judgment. The case
should go to a jury.
ARGUMENT
1. In our opening brief, we argued that the district court erred in finding
that there was insufficient evidence to support a finding that the EEOC established
a prima facie case of disparate discipline under the McDonnell Douglas
framework with respect to Turner, Thomas, Frank, and Cargo. We noted that the
requirements of a prima facie case are "minimal." See EEOC Opening Brief
("EEOC:") at 28-30 (citing, e.g., St. Mary's Honor Center v. Hicks, 509 U.S. 502,
506 (1981)). We argued that, based on the evidence in the record, a reasonable
jury could find that the EEOC established a prima facie case under McDonnell
Douglas with respect to all four individuals under one or more of three judicially-
recognized standards. EEOC:30-34 (citing, e.g., McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 275-76 (1976), and Perez v. Texas Dep't of Criminal
Justice, 395 F.3d 206, 212-13 (5th Cir. 2004) ("same-incident" test); Lee v.
Kansas City S. Ry., 574 F.3d 253, 260-62 (5th Cir. 2009) ("nearly-identical-
circumstances" test); Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th
Cir. 1995) ("no-violation" test)).
KCS takes issue with both our statement of the legal standards and their
application to the specific individuals. These arguments lack merit. Regarding
the legal standards, the company argues initially that all plaintiffs in misconduct
cases must use the "nearly-identical-circumstances" test regardless of the facts in
the particular case. E.g., Kansas City Southern Appellee Brief ("KCS:") at 20
("plaintiff must show ‘nearly identical circumstances'"); accord id. at 29, 41. That
is incorrect. There is no one-size-fits-all test for a prima facie case. As we
pointed out, because "‘[t]he facts necessarily will vary in Title VII cases,'" the
requirements of the prima facie case are "not inflexible." EEOC:30 n.7 (citing,
e.g., Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)
(quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.13 (1973))).
Indeed, McDonnell Douglas was a misconduct case and it does not apply the
"nearly-identical-circumstances" test. See 411 U.S. at 802.
KCS then asserts that McDonald does not address the elements of a prima
facie case but "only the standard for pleading a prima facie case under the
McDonnell Douglas framework." KCS:28 (original italics). On the contrary,
while McDonald procedurally was an appeal from a motion to dismiss, the
decision was not limited to "pleading standards." Rather, beginning its analysis
with McDonnell Douglas, the Court explained that McDonnell Douglas held that
the plaintiff "adequately stated a claim" where the black employee was fired for
engaging in a work stoppage to protest race discrimination, noting that evidence
that white employees fired for comparable acts of misconduct were rehired would
be "especially relevant" in establishing pretext. 427 U.S. at 282. KCS, correctly,
does not suggest that McDonnell Douglas addresses only a "pleading standard."
The McDonald Court then stated that it found that case to be "indistinguishable
from McDonnell Douglas." Id. Thus, evidence that the employer fired white
employees but retained a black employee engaged in the same alleged misconduct
is sufficient to state a claim — that is, to establish a prima facie case under the
McDonnell Douglas framework. The footnote relied on by defendant simply
rejects an argument that plaintiffs had to "plead with ‘particularity' the degree of
similarity" between their culpability and that of their black comparator. KCS:28
(citing 427 U.S. at 283 n.11).
KCS argues, however, that this Court in Perez confirmed its view that
McDonald is limited to pleading standards. According to the company, Perez
"explained that, in addressing this pleading standard," the Supreme Court did not
intend to articulate the entirety of the employee's burden of proof. KCS:28
(original italics). That is half right. Perez concerned a jury instruction, not a
pleading standard. The Court concluded that McDonald did not define the prima
facie case for cases such as Perez, where plaintiff and his comparators were
engaged in "unrelated but arguably similar misconduct." 395 F.3d at 212-13. The
Court contrasted such facts to those in McDonald where plaintiffs and their
comparator were "all participants in the same theft" but were disciplined
differently. See id.
Thus, KCS is correct that McDonald does not articulate a prima facie case
for the "entirety" of disparate discipline cases. It does apply, however, in cases
such as this one where black and white employees were disciplined differently for
the same incident. Significantly, KCS's brief does not dispute that such facts, if
proved, would raise an inference of discrimination. That is all that is required for
a prima face case under McDonnell Douglas. See, e.g., Burdine, 450 U.S. at 253
(requirements of prima facie case are "not onerous"). Such evidence then is
sufficient to shift the burden of production to KCS to proffer evidence of why the
decisionmaker did what he did.
Finally, defendant makes the novel argument that, in addition to the
elements of a prima facie case, EEOC must establish a "causal nexus" between the
alleged discriminatory animus and the challenged disciplinary actions before the
burden of production shifts to the employer. KCS:20, 47-49 (citing, e.g.,
Roberson v. Alltel Info. Servs., 373 F.3d 647, 652 (5th Cir. 2004)). Defendant
mistakenly suggests that this requires some additional evidence of causation. It
does not. The point of the McDonnell Douglas framework is that it permits a
plaintiff to show discrimination inferentially, through a combination of the prima
facie case and, assuming defendant carries its burden of production, pretext. See,
e.g., Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147-149 (2000)
(reasoning, e.g., that proof that proffered explanation is unworthy of credence is
simply one form of circumstantial evidence — often "quite persuasive" — of
intentional discrimination). Roberson, which defendant cites but does not explain,
simply states that, once a case is fully tried, there must be evidence from which a
jury could find that race or another protected characteristic played a role in the
decisionmaking. 373 F.3d at 652. By suggesting that this "causal nexus" is
something plaintiffs must prove before the burden shifts to the defendant,
defendant is attempting, inappropriately, to collapse the prima facie case and
pretext. In fact, as discussed, plaintiff's initial burden is "not onerous" (Burdine,
450 U.S. at 253), and plaintiff's duty to prove pretext does not arise until
defendant proffers sufficient evidence of why the decisionmaker did what he did
to support a finding in its favor. Id. at 255 ("legally sufficient to support a
judgment" for defendant). Here, KCS has not carried that burden.
2. Turning to KCS's factual arguments, we note that the company
repeatedly contends that we make "conclusory" assertions (KCS:4, 18, 23, 24), but
does not point to examples of such assertions. Then, somewhat inconsistently, the
company lists some twenty citations (a few are duplicates) to testimony that were
inadvertently included in our opening brief but were not pointed out to the court
below. See, e.g., KCS:49-51 & passim, Exhibit B. In the attached Exhibit I,
included in the word count for our brief, we have identified comparable support or
otherwise explained the bulk of these citations. We note, however, that even
without these cites, there is sufficient evidence to support a prima facie case as to
each man.
We further note that defendant's brief makes the opposite mistake. Page
after page contains one or more assertions of fact unsupported by relevant (or any)
citation to the record. To the extent a citation is supplied, it often relates to only
part of a statement; the rest is unsupported. We highlight here a few such
assertions by way of illustration.
Many of these statements concern KCS's attempts to connect the disparate
discipline decisions — discharge for Turner, Thomas, and Cargo compared to no
penalty or a suspension for their white counterparts; an excessively "harsh"
suspension (PLB order) for Frank compared to the light suspension for Mouney —
to some reasoned basis for those decisions and to the decisionmaker, Thornell.
This is because, for summary judgment, KCS must demonstrate an absence of
disputed fact regarding the reasons for the challenged decisions. Accordingly,
KCS asserts as fact that, in making the challenged decisions, "KCSR
management" considered some combination of the applicable hearing transcripts,
the employee's disciplinary history, and KCS's "progressive disciplinary
guidelines" — for which the company also provides no record citation. As
authority for these "facts," KCS mainly cites either Alexander's Declaration ¶5
and Thornell's Declaration ¶¶3-4 (KCS:8 (Turner), KCS:11 (Thomas), KCS:14
(Frank), KCS:41-42 (Cargo)), or the disciplinary decisions themselves. See, e.g.,
KCS:9 (Turner's discharge notice), KCS:11 (Thomas's discharge notice), KCS:16
(Cargo's discharge notice).
These citations do not support the cited statements. Paragraph 5 of
Alexander's Declaration simply states that Thornell made disciplinary decisions.
Paragraph 6 would be helpful, but the district court struck that paragraph as not
based on Alexander's personal knowledge (ROA v12-8087), so KCS may not rely
on it. Similarly, in Thornell's Declaration, he concedes that he does not know
what he considered or why he made the decisions he did for these four individuals
(or their comparators), so it likewise offers no support. See also, e.g., KCS:14-15
(finding "notable" Frank's 1997 discharge for a failed alcohol test without
evidence it was relevant to the 90-day suspension in 2003). As for the disciplinary
decisions, they are relevant insofar as they demonstrate the rules purportedly
violated and the severity of the penalty, but they do not demonstrate what
considerations went into the respective punishments. In fact, as our opening brief
points out, KCS has come forward with no record evidence of why Thornell chose
to discipline these black employees so much more severely than their white
counterparts. EEOC:54.
So-called "Exhibit A" (KCS:62-65) provides another example of bald
factual assertions unsupported by record evidence. This 800+-word "Exhibit,"
which appears to have been omitted from KCS's word count, purports to
summarize the job title and disciplinary history of each claimant and his
comparators as well as "significant distinctions" between them. Wholly apart
from the fact that it is improper to exclude such a document — essentially an
argument summary — from the word limit, this document cites nothing to support
the "facts" it sets out. Most remarkably, the document lists a "disciplinary
history" for Scott Claiborne, the white engineer who was suspended for the same
incident for which Cargo was fired. KCS:65; see also id. at 42 (asserting greater
detail about Claiborne's supposed disciplinary history: alleged violation, penalty
and even a date, all without record citation). KCS tacitly admits elsewhere in the
brief, however, that there is no evidence of Claiborne's disciplinary history, or
whether it was better or worse than Cargo's. See KCS:43 (complaining that
EEOC should have put this evidence in the record).
KCS's brief is replete with similarly unsupported factual assertions. It is
axiomatic that a party may not simply assert "facts" without accompanying record
citations. See, e.g., Green v. Johnson, 160 F.3d 1029, 1036 n.2 (5th Cir. 1998)
("[I]t is the job of a party . . . to supply in its brief relevant record cites in order
that this Court may properly review his arguments.") (adding that Court does not
go on "a fishing expedition through the record" to find relevant facts); Fed. R.
App. P. 28(a)(9)(A) (brief must cite to relevant parts of the record). KCS's brief
does not comply with this basic requirement.
3. In our opening brief, we argued that there is sufficient evidence in the
record to support a prima facie case with respect to all four individuals. Even
assuming it had record support for its factual assertions, KCS's brief picks at but
does not rebut these arguments.
a. Turner
Regarding Turner, we argued that there is evidence that he was relying on
radioed instructions from his white conductor, Schmitt, to safely shove a burned-
out engine backwards onto a spur track. At the hearing, Turner testified that the
last information he received from Schmitt was that the derailer was very close; he
never got a timely signal to stop. Instead, Turner heard Schmitt chatting over the
radio with employees in the roundhouse. See, e.g., ROA v5-3125 (Hearing).
Although the train was creeping along, it derailed, causing little if any damage.
For this incident, Thornell fired Turner while completely absolving Schmitt. This
evidence, we argued, was sufficient to raise an inference of discrimination,
requiring KCS to offer evidence of why Thornell decided to blame the black
engineer while letting the white conductor off scot-free. See EEOC:35-40.
KCS first responds that Turner violated at least some rule since under
"KCSR's operating rules" he was "supposed to stop before the derail device."
KCS:23-24. That begs the question of why Schmitt was not, at a minimum, also
found liable for the violations. The company then states (without citation) that
Turner "claims" that he did not hear Schmitt's instructions, but, according to the
company, that was no excuse for not stopping. KCS 224-25. Even though the
audio tapes were unavailable, the company continues, they would "at best" support
Turner's account of the instructions he was given, and that "would change
nothing." KCS:24-27.
Initially, we note that Turner did not "claim" that he did not hear Schmitt's
instructions. He testified at the hearing (as well as in his deposition) that Schmitt
was chatting with roundhouse personnel and gave no instruction to stop until after
the engine derailed. ROA v5-3108-09 (Hearing); see also EEOC:4. It was
Schmitt who speculated that Turner perhaps did not hear his instructions due to
radio failure. See ROA v5-3125. As for the audio tapes, they could confirm
Turner's testimony that Schmitt was distracted during the shove.<1>
The company then lists the rule numbers of the rules Turner was found to
have violated (KCS:23) and chastises the Commission for "eschew[ing] any
discussion of the specific rules Turner violated." KCS:23-24 (original italics).
Although several of these rules were not discussed during the hearing, GCOR 6.5
and 7.12 were read into the record. 6.5 appears to apply to Schmitt, rather than
Turner: it refers to a "crew member's" visibility during a shove. ROA v5-3090.
As for 7.12, it requires inter alia stopping at least 150 feet from the end of the
track (v5-3072) – something Schmitt from the rear of the train could judge but
Turner from the cab could not. See ROA v5-3088 (Trainmaster Love) (agreeing
there should be a "150-foot gap between end of spur track and end of engine).
Indeed, had Schmitt directed Turner to stop 150 feet from the derailer, there would
have been no incident since, as KCS notes, Turner estimated, without rebuttal, that
he traveled at most only 20-25 feet after Schmitt told him he should stop in "1/2
car." KCS:8 n.1 (citing ROA v2-1081 [v5-3111]).<2> Yet Turner, not Schmitt, was
disciplined for violating these rules. Cf. ROA v8-4752 (Lobello) (recollecting that
he told labor relations that Schmitt and Turner both committed infractions) (cited
at ROA v12-8077).<3>
Defendant attempts to explain why Turner, the black engineer, was held
solely responsible for these purported violations while Thomas and Cargo, the
black conductors, were held jointly liable with their white engineers but punished
more severely. See KCS:29-31 (stating that EEOC found this distinction
"confus[ing]"). The company parses out differences in the conduct of Thomas and
Cargo, opining that they were found liable but Schmitt was not because they, but
not Schmitt, breached duties unique to conductors. This reasoning is flawed.
Defendant cites no authority for its theory, which thus seems to represent
counsel's reasoning, rather than Thornell's, nor does defendant identify the rules
that the conductors but not their respective engineers purportedly violated. Hall,
in fact, was found to have violated the same rules as Thomas. Compare ROA v3-
1549 (Hall) with v4-2466 (Thomas). KCS also states, without citation, that
Schmitt was not responsible for "control[ling] the movement of the train" because
he, unlike Thomas and Cargo, was on the ground rather than in the cab. KCS:30-
31 (original italics); see also id. at 29 (Turner but not Schmitt was liable because
Turner's failure to stop was "direct cause" of derail). That makes no sense.
Schmitt was acting as Turner's eyes; to the extent Turner complied with Schmitt's
directions, Schmitt did control the movement of the train. Cf. ROA v5-3090
(Love) (stating that Rule 6.22, Maintaining Control of the Train (which Turner
was found to have violated), "would apply to anyone"). At a minimum, therefore,
these putative distinctions are fodder for the jury, rather than the Court on
summary judgment.
Finally, KCS turns to the comparison between Turner and Schmitt for
purposes of Lee. The company makes two main arguments, both of which we
addressed below (as we did regarding Mouney) and neither of which has merit.
According to defendant, the derail was "more serious" than Schmitt's subsequent
sideswipe. KCR:32 (citing ROA v4-2390 ¶12, Alexander's statement that a
sideswipe is "generally" considered "less serious"). Lobello, the investigating
officer, disagreed, stating that, because it involved hazardous materials and
extensive damage, this sideswipe was "a more severe incident" than this derail.
ROA v8-4748 (cited below at v12-8077).
Second, defendant asserts, selectively citing their respective disciplinary
histories, that Schmitt's history was not comparable to Turner's because Schmitt's
alcohol-related discharge occurred much earlier. KCS:32-33 (ignoring Schmitt's
other disciplinary history), 56-57. In particular, the company asserts that we
"misconstrue" the PLB reinstatement order. We are puzzled by this argument and
a later one that we "misstated" the record in arguing that KCS's rationale for firing
Turner evolved from "his violation of a supposed ‘last-chance agreement'
["without ever defining" the term] to generally his poor discipline history." KCS
at 56-57. Our brief never used the term "last-chance agreement." We argued,
quoting KCS's reply brief below, that Turner "‘was considered to have a "last-
chance status"'" because "‘[his] disciplinary history reflected a recent prior
dismissal'" in 1999. EEOC:57 (quoting ROA v10-6774). We noted that, since
Schmitt's "disciplinary history" also "reflected a recent prior dismissal" (and
another serious infraction) in 1999, he likewise should have "been considered to
have a ‘last-chance status,'" yet he was merely suspended for the sideswipe, which
involved hazardous materials, caused substantial damage, and occurred shortly
after his involvement in the derail, whereas Turner was abruptly fired for the
derail. KCS disagrees with our analysis, reasoning that Schmitt "was not
employed on a last-chance basis." KCS:56-57. Defendant does not explain why
this is so, however, since his disciplinary history, like Turner's, reflects a 1999
discharge.
b. Thomas
We argued that evidence supports a finding of a prima facie case regarding
Thomas because he was merely working as the conductor on a train driven by
Hall, who is white, when Hall failed to stop the train at a dark signal. Thornell
initially fired both men but then reinstated Hall 30 days later. Bonds, the
investigating officer, found this unusual enough to warrant further inquiry.
EEOC:14-17; see also ROA v7-4179 (Bonds Dep., cited at ROA v5-2768). This
evidence, we argued, raises an inference of discrimination sufficient to shift the
burden to KCS to produce evidence of why Thornell did what he did.
KCS's brief focuses on two points: the fact that Thomas failed to update his
consist and what the company contends is his "vastly different" disciplinary
history. The company also notes that Thomas was doing paperwork when the
"rules" (which KCS does not identify) required that he watch for a signal.
KCS:36-40.
None of these arguments justifies summary judgment for KCS. As noted
above, Hall and Thomas were found to have violated exactly the same rules,
including, apparently, the failure to update the consist. See ROA v3-1549 (Hall)
and v4-2466 (Thomas). As for the paperwork, defendant points to no evidence
that Thomas violated any rule by doing paperwork or that this played any role in
Thornell's decision to fire him while suspending Hall who, as engineer, was
directly responsible for controlling the operation of the train. As for their
respective disciplinary histories, KCS misstates Thomas's record. KCS:39-40 (six
recent violations). In fact, as we stated, he had only five recent violations, roughly
comparable to Hall's in number and severity. EEOC:43-44 (citing ROA v4-2467-
2471 (Thomas) and v3-1550-1553 (Hall)). Defendant also speculates that Thomas
accepted a "leniency reinstatement" because he felt bad about missing the signal.
KCS:37. A jury could find that a likelier reason was financial, since Thomas had
been unemployed and unpaid for nearly a year.
c. Frank
We argued that evidence shows that Frank, a black engineer, was suspended
for 90 days — three times the maximum penalty — for missing his first shift in six
years (after notice to the company) in order to be with his hospitalized uncle
whereas, shortly thereafter, Mouney, who is white, was suspended for five days for
missing his third shift in three years, even though the guidelines apparently require
a 30-day suspension in such cases. We also noted that Frank's run was covered by
Mitchell, who was "just sitting there not doing nothing." This evidence, we
argued, raises an inference of discrimination sufficient to shift the burden of
production to KCS. EEOC:44-46.
KCS responds that Mouney is not comparable because Frank, but not
Mouney, was found to have violated other rules such as insubordination and
conduct adverse to the company. We addressed these arguments in our opening
brief. See EEOC:45-47. Because a jury could find that Frank's missed call was
unremarkable — and indeed, less adverse than most in light of Mitchell's
availability — KCS's response does not address the question of why Thornell
found Frank, rather than Mouney, liable for the additional violations particularly
given Frank's reason for seeking leave — his uncle's emergency hospitalization
(which defendant does not mention). In any event, under Lee, there need only be
evidence that the conduct was comparable; it need not be identical. See 574 F.3d
at 261.
d. Cargo
We argued that evidence showed that Cargo was fired while his white
engineer, Claiborne, was merely suspended when the train Claiborne was driving
derailed while passing over a dual-control switch, causing minor damage.
Although Cargo was responsible for checking the switch, both he and Claiborne
understood that it was to be checked visually, not manually, and the tower
operator never gave permission for the manual check. This evidence, we argued,
raised an inference of discrimination under McDonald sufficient to shift the
burden of production to defendant. EEOC:47-49.
In response, KCS renews its argument that the "nearly-identical-
circumstances" test is the only way that plaintiffs may raise a jury issue regarding
a prima facie case in misconduct cases. As noted above, that argument is simply
wrong. Defendant never mentions the Supreme Court's repeated statement that
the prima facie case is flexible and its requirements minimal. Defendant also
renews its argument that Thornell fired Cargo based on his disciplinary record, the
hearing transcript — and the seriousness of the incident. KCS:41-43. As our
opening brief points out, we did not need to disprove those factors in order to
establish a prima facie case under McDonald and, in any event, there is no relevant
evidence they played any role in the decision here. Furthermore, as noted, supra,
at 9-10, there is simply no record evidence that Claiborne's disciplinary history
was any better — or worse — than Cargo's. Nor does defendant cite anything to
suggest that anyone found this derail particularly "serious." As we noted, the
investigative officer believed the crew was simply unclear about how to handle a
dual-control switch; Wax testified at the hearing that he would have done what
Cargo and Claiborne did; and there was little damage to either the track or the
trains. See, e.g., EEOC:14-16, 47.
Defendant also argues that evidence shows that Claiborne relied on Cargo's
determination that the switch was properly lined and locked, accusing EEOC of
being "disingenuous" in denying that fact. KCS:43. We do not deny that
Claiborne relied on Cargo — much like Turner relied on Schmitt. Our point was
that Claiborne, like Wax, made clear that he believed, like Cargo, that the switch
could be checked visually. ROA v6-3439-3440, 3510-3513 (Claiborne), v6-3483-
3485 (Wax). KCS cites nothing to suggest that the switch did not look properly
lined and locked.
Finally, KCS asserts that there is no "authority" for our "assumption" that
Claiborne, rather than Cargo, should ask permission to handle the switch by hand.
KCS:43. On the contrary, it represents a fair reading of Wax's testimony. See
EEOC:15 (citing ROA v9-5777). When asked, for example, if the conductor
could not get down to handle the switch "until the engineer would stop the train
and ask for permission," Wax answered: "That's correct." ROA v9-5776-5777.
See also v6-3513 (Claiborne) (stating that control operator informs him he has
permission to line dual control switch).
4. Our opening brief argues that the district court erred in relying on
letters supposedly written by Denise Brame since they are hearsay without an
exception. EEOC:49-52. KCS distorts this argument, noting that we proffered no
evidence that the letters were "altered or that Brame misrepresented what she
reviewed." KCS:44. Our point was that there is no evidence they were even
prepared by Brame. She never testified that she prepared them, and we know,
from the disciplinary letters purportedly but not actually reviewed or signed by the
investigative officers, that even a signature (two of the Brame letters are unsigned)
on a disciplinary document, standing alone, is meaningless. EEOC:48-51 (citing,
e.g., ROA v4-2412 (Turner), 2504 (Cargo)). Defendant argues that the testimony
we relied on from the investigative officers was not cited to the district court.
KCS:46. Those cites are not necessary, however, because KCS does not dispute
the fact that, as we noted, even though their signatures appear on the letters, the
investigative officers did not review or sign the letters. If Brame did, in fact,
personally prepare and sign the letters, KCS may be able to correct this flaw at
trial. But because their "method [and] circumstances of preparation indicate lack
of trustworthiness" (Fed.R.Evid.803(6)), the letters offer no support for summary
judgment.
5. In our opening brief, we argued that the district erred in finding that
KCS carried its burden of production. We noted that the key issues in a
discrimination case are who made the challenged employment decisions and why.
EEOC:59 (citing Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001)). Here, by
the time KCS correctly identified Thornell as the decisionmaker, he testified that
he had no recollection of why he did what he did regarding any of the claimants or
comparators. Nor did he leave contemporaneous records. KCS attempts to cobble
together post-hoc explanations from counsel or non-decisionmakers of what they
would have done or think Thornell should have considered, but those explanations
do not suffice to carry the company's burden of production, which requires
"admissible evidence" that is "legally sufficient to justify a judgment for the
defendant." See, e.g., Burdine, 450 U.S. at 255; see also id. at 255 n.9 ("argument
of counsel" does not suffice).
KCS's primary response is to merely assert that its post-hoc explanations
are sufficient. This argument was addressed in our opening brief. KCS's other
arguments are puzzling. First, the company asserts that we "contend" that the
company "must prove its legitimate reasons actually motivated the
decisionmaker." KCS:51-52 (original italics) (citing EEOC:53). Defendant
suggests that it was confused by our statement that "the ‘"employer's legitimate
reason for the action will not suffice if that reason did not motivate it at the time of
the decision."'" KCS:52 (citing EEOC:53 (quoting inter alia McKennon v.
Nashville Banner Pub. Co., 513 U.S. 352, 359-60 (1995))). If so, we clarify. The
evidence of the proffered reason will not suffice if a jury could not find, based on
that evidence, that the reason actually motivated the company at the time of the
decision. KCS's evidence does not suffice under that standard. To support its
argument, KCS cites Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th
Cir. 1995) (KCS:53), but that case does not address the evidence the employer
proffered to support its reason.
Defendant also takes issue with our discussion of the cat's paw doctrine.
Under that doctrine, if a biased supervisor offers input into a decision but the
actual decisionmaker, after an independent investigation, independently reached
its own decision, the employer is not liable unless the actual decisionmaker is also
biased. See EEOC:60-61 (citing Roberson v. Alltel Info. Sys., 373 F.3d 647, 654
(5th Cir. 2004); Mato, 267 F.3d at 450)). We argued that the doctrine is
inapplicable here because, although KCS attempts to rely on reasons why
Alexander and the arbitral boards upheld (at least in part) Thornell's original
decisions, they were not the decisionmakers. Thornell was. See id.
KCS asserts that it "agrees" that the cat's paw doctrine does not apply,
reasoning that "there is no evidence that Thornell exerted any influence over the
investigative hearing officers, Brame, Alexander, or the arbitral boards." KCS:48-
49 (citing cat's paw cases). The company is right, but for the wrong reason.. No
such evidence is required. Thornell was the decisionmaker. Those other
individuals were not.
6. Finally, KCS argues that summary judgment was appropriate because
the Commission failed to proffer evidence that the company's reasons, which,
KCS asserts, did not evolve over time and are supported by admissible evidence,
were a pretext for discrimination. KCS:54-60. As we noted, however, KCS did
not carry its burden of production — it misidentified the decisionmaker; the
explanations of non-decisionmakers and counsel changed over time; and, most
importantly, once correctly identified, the decisionmaker could not explain why he
did what he did and defendant proffered no other admissible evidence of his
reasons. Accordingly, assuming EEOC satisfied its prima facie burden — and a
jury could find that we did, EEOC's responsive duty never arose. Summary
judgment, therefore, should be reversed.
CONCLUSION
For the foregoing reasons, the judgment below should be reversed and the
case remanded to the district court for further proceedings.
Respectfully submitted,
JAMES L. LEE
Deputy General Counsel
LORRAINE C. DAVIS
Acting Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
/s/ Barbara L. Sloan_____________
BARBARA L. SLOAN
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Office of General Counsel
131 M Street, N.E., 5th Floor
Washington, D.C. 20507
(202) 663-4721
barbara.sloan@eeoc.gov
EEOC'S EXHIBIT I (from KCS EXHIBIT B)
Brf. Pg. Record Citation Witness Alternative
4 ROA v8-5369-70 Turner (No alternative but there is no evidence of
any damage resulting from derail)
5, 35 ROA v8-5379-80 Turner ROA v5-3125 (cited in brief)
(Schmitt suggested at hearing that it would
have been a good idea to test the radio for
malfunction)
7 ROA v8-4726-27 Lobello ROA v8-4752, cited at v12-8087
(probably told labor relations that Schmitt
and Turner both committed infractions)
8 ROA v 8-4740-41 Lobello ROA v8-4748 , cited at v12-8087
(due to extensive damage and involvement
of hazardous materials, Schmitt/Mouney's
sideswipe was "a more severe incident" than
Turner/Schmitt's derail)
8 ROA v8-4738-44 Lobello ROA v6-3432 (Schmitt's disciplinary
record); ROA v3-1512 (Mouney's
disciplinary record), both cited in brief
9 ROA v8-4757 Lobello (Included in cite pages 37, 50)
(Implicit in KCS's assertion that engineer
controls the movement of the train)
10 ROA v7-4664 Laughlin ROA v11-6888 (Hearing), cited in brief
(misidentified as Lobello)
12 (not 10),ROA v8-4731-34 Lobello (Undisputed that investigative officer did
50, 51 not sign disciplinary letter or recommend
specific discipline)
14 ROA v7-4347-49 Cargo ROA v7-4721 (Lobello), cited at v5-2774
(agreeing that punishment assessed with a
waiver is equal to or less than punishment
assessed after hearing)
14 ROA v7-4306 Cargo (No alternative)
15 ROA v7-4658-59 Laughlin ROA v6-3503 (Cargo) (Hearing), v6-3511-
13 (Claiborne) (Hearing), cited in brief at 15
(Undisputed that crew was neither given
permission to operate switch by hand or
otherwise told to do this)
15 ROA v7-4660 Laughlin (No alternative, unnecessary)
16 ROA v7-4639, Laughlin (Undisputed that investigative officer did
4647-49 not sign or review discipline letter)
16 ROA v7-4648, 4662 Laughlin ROA v7-4737-38, cited at v12-8082
(thought both men violated the rules but did
not think they fully understood the rules)
17 n.6 ROA v7-4074-75 Alexander (No alternative)
37, 50 ROA v8-4756-57 Lobello (Undisputed that investigative officer did
not sign letters or assess discipline)
50 ROA v7-4647-48 Laughlin (Included in cite page 16; same alternative)
60 ROA v7-4186 Bonds ROA v7-4179, cited at ROA v7-2768
(no input after hearing; found Hall's
reinstatement without Thomas was unusual
enough to warrant inquiry)
60 ROA v8-4752 Lobello ROA v8-4752, cited at v12-8077
(would have found both men committed
infractions)
60 ROA v7-4662 Laughlin (Duplicate of cite page 16), ROA v7-4737-
38, cited at v12-8082
(thought both men violated rules but did not
think they fully understood the rules)
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because it contains 5,552 words, from the Introduction through the
Conclusion and Exhibit I, excluding the parts of the brief exempted by Fed. R.
App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportional typeface using Microsoft Word 2003 with Times
New Roman 14-point font.
/s/ Barbara L. Sloan___________
Barbara L. Sloan
Attorney for Equal Employment
Opportunity Commission
Dated: March 29, 2010
CERTIFICATE OF SERVICE
I certify that the foregoing Reply Brief of the EEOC as Appellant was filed
on March 29, 2010, by electronic means using the Fifth Circuit's CM/ECF system.
A paper copy of the brief was also sent by first-class mail, postage prepaid, and a
courtesy copy was emailed, on March 29, 2010, to the following counsel of
record:
Donald F. DeBoisblanc
DeBOISBLANC & DeBOISBLANC
410 South Rampart Street
New Orleans, LA 70112
John Mark Fezio
Rachel W. Wisdom
STONE PIGMAN WALTHER WITTMANN LLC
546 Carondelet Street
New Orleans, LA 70130
/s/ Barbara L. Sloan_____________
Barbara L. Sloan
***********************************************************************
<<FOOTNOTES>>
<1> Defendant states that Turner “changed his story several times.” KCS:8
n.1. Coupling his hearing testimony about Schmitt’s side-conversation with
the cited snippets, however, it is clear that he consistently testified that
he heard Schmitt say “half-car, easy,” heard Schmitt talking to the roundhouse,
and then hit the derail and stopped.
KCS also states that Turner testified he moved 20-25 feet after hearing
hearing Schmitt say “half-car”; KCS characterizes this as “half-a-car
length.” Id. (citing ROA v2-1081[v5-3111]). But Schmitt testified that when
dealing with engines, he estimates distance by “engine-length,” which is 70-75
feet. ROA v2-1096 [v5-3126].
<2> The Turner/Schmitt hearing transcript is found in both volume 2 and volume 5. EEOC cited to volume 5; KCS cites to volume 2.
KCS asserts that EEOC used this testimony (or its equivalent) as evidence that “Turner and Schmitt were engaged in the same conduct.” KCS:29 (citing EEOC:37). That is incorrect. We cited it as evidence that Lobello “would have recommended that both Turner and Schmitt be held responsible for the derail.” EEOC:37. KCS also faults us for relying on testimony that was not cited to the district court. KCS:29-30. The district court cited Lobello’s deposition pp.116-130 (v12-8087). As noted above, Lobello there stated that he assumes he told labor relations that the men “both committed an infraction.” ROA v8-4752.
Defendant asserts that the derail damaged “two train cars,” citing the discharge letter. KCS:9 (citing ROA v4-2164). The derail, however, involved only engines. The “train cars” were involved in an earlier sideswipe, and the PLB rejected that alleged violation. ROA v4-2420. We are aware of no evidence that the derail caused any damage.
We did not assert that Turner’s “last-chance status” required that he be drug/alcohol tested. See KCS:56. Rather, we observed that, because he neither tested positive for drugs/alcohol nor refused to be tested, he did not violate the plain terms of the reinstatement order. EEOC:56. KCS evidently agrees that the order was not relevant since it acknowledges that the order did not require testing or “preclude discharge for other violations.” See KCS:33 (original italics).
Defendant argues that this Court should defer to the arbitral decisions involving Turner, Thomas, Frank, and Cargo, because those bodies are “well-qualified” to resolve railroad-related matters. KCS:23 (citing Slocum v. Delaware, L. &W. R. Co., 339 U.S. 239, 242-43 (1950)). We do not question the boards’ expertise in resolving disciplinary grievances arising out the collective bargaining agreement, but KCS points to nothing suggesting that their expertise extends to Title VII. Cf. Slocum, 339 U.S. at 242 (distinguishing questions involving CBA interpretation that may impact “future relations between the railroad and its other employees” and common-law or statutory wrongful discharge actions, which raise no such concerns). In any event, the boards were not asked to decide whether, for example, Turner was disparately disciplined vis-a-vis Schmitt since the union would not have appealed Schmitt’s acquittal. While the NRAB rejected an argument that Cargo’s discharge was “discriminatory,” that argument was based on his seniority, not his race. ROA v4-2277-2278.