UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________ No. 09-30558 _______________________ THOMAS TURNER, Plaintiff-Appellant, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, ROBERTA BROWN, Plaintiff-Appellant, v. KANSAS CITY SOUTHERN RAILWAY CO., Defendant-Appellee. _____________________________________________________ On Appeal from the United States District Court for the Eastern District of Louisiana _____________________________________________________ (CORRECTED) BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ______________________________________________________ JAMES L. LEE EQUAL EMPLOYMENT OPPORTUNITY Deputy General Counsel COMMISSION VINCENT J. BLACKWOOD Office of General Counsel Acting Associate General Counsel 131 M Street, N.E., 5th Floor Washington, DC 20507 BARBARA L. SLOAN (202) 663-4721 Attorney fax: (202) 663-7090 barbara.sloan@eeoc.gov STATEMENT REGARDING ORAL ARGUMENT The Commission believes that oral argument might be helpful to the Court because the case involves four individuals were allegedly subjected to discriminatory discipline and the factual record is quite long. TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings. . . . . . 2 2. Statement of Facts . . . . . . . . . . . . . . . . . . 4 3. District Court Decision . . . . . . . . . . . . . . . . 17 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . 24 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . 25 ARGUMENT THE EVIDENCE IS SUFFICIENT TO SUPPORT A FINDING THAT DEFENDANT DISCRIMINATED AGAINST TURNER, THOMAS, FRANK, AND CARGO BECAUSE THEY ARE AFRICAN-AMERICAN. . . . . . . . . . . . . . . . . . . . 28 A. Evidence that KCS punished the four African-American employees more severely than similarly-situated white employees is sufficient to establish a prima facie case under the McDonnell Douglas framework. . . . . . . . . . . . . . . 29 B. The district court erred in holding that defendant met its burden of producing evidence of the alleged "true" reason for the challenged employment actions. . . . . . . . . . . . 51 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 63 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . 64 STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . 64 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978) . . . . . . . . . . . . . . . . . . 30 Lee v. Kansas City Southern Railway Co., 574 F.3d 253 (5th Cir. 2009). . . . . . . . . 24, 33-34, 43 Little v. Republic Refining Co., 924 F.2d 93 (5th Cir. 1991) . . . . . . . . . . . . . . 32 Mato v. Baldauf, 267 F.3d 444 (5th Cir. 2001). . . . . . . . . . . . 59, 61 Mayberry v. Vought Aircraft Co., 55 F.3d 1086 (5th Cir. 1995). . . . . . . . . 30-31, 33, 35 McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976) . . . . . . . . . . . . . . . . . 31-32 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . 30, 31 McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) . . . . . . . . . . . . . . . . . . 53 Okoye v. University of Texas, 245 F.3d 507 (5th Cir. 2001). . . . . . . . . . . . . . 32 Patrick v. Ridge, 394 F.3d 311 (5th Cir. 2004). . . . . . . . . . 24, 53, 55 Perez v. Texas Dep't of Criminal Justice, 395 F.3d 206 (5th Cir. 2004). . . . . . . . . . . . . 31-33 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . . . . . . . . . . . . . . . . 53 Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . 28-29 Roberson v. Alltel Information Systems, 373 F.3d 647 (5th Cir. 2004). . . . . . . . . . . . . 60-61 St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) . . . . . . . . . . . . . 28-30, 52-53 Smith v. Wal-Mart Stores, 891 F.2d 1177 (5th Cir. 1990) . . . . . . . . . . . . . 32 Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . . . . . 28-30, 52-53 Thornbrough v. Columbus & Greenville Ry. Co., 760 F.2d 635 (5th Cir. 1985), abrogated, St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) . 30 Wallace v. Methodist Hospital System, 271 F.3d 212 (5th Cir. 2001). . . . . . . . . . . . . . 32 STATUTES AND RULES 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. § 1981 . . . . . . . . . . . . . . . . . . . . . . . 2 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.. . . . . . . . . . . . . passim 42 U.S.C. § 2000e-5(f). . . . . . . . . . . . . . . . . . 1 Federal Rule of Civil Procedure 56 . . . . . . . . . . . passim Federal Rule of Evidence 803(6). . . . . . . . . . . . . . . 49 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________ No. 09-30558 _______________________ THOMAS TURNER, Plaintiff/Intervenor-Appellant, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, ROBERTA BROWN, Plaintiff/Intervenor-Appellant, v. KANSAS CITY SOUTHERN RAILWAY, Defendant-Appellee. ______________________________________________________________ On Appeal from the United States District Court for the Eastern District of Louisiana ______________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT (CORRECTED) _______________________________________________________________ STATEMENT OF JURISDICTION The EEOC brought this enforcement action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq. ("Title VII"). No.05-2668 (E.D. La.). The district court had jurisdiction under 28 U.S.C. §§1331 and 1345 and 42 U.S.C. §2000e-5(f). Summary judgment on the Title VII claims was entered on May 19, 2009, and final judgment was entered the same day. District court docket number ("EEOC-R.")47(Judgment), Record on Appeal("ROA") 10; see also district court docket number in Case No.03-2742 (E.D. La.)("Turner-R.") 301-302 (ruling), 303 (Judgment), ROA 54. The Commission filed a timely notice of appeal on July 17, 2009. EEOC-R.49; Turner-R.311. This Court has jurisdiction under 28 U.S.C. § 1291.<1> STATEMENT OF ISSUES (1) Whether the district court erred in finding that evidence that defendant punished four African-American employees more severely than white employees for the same incident and/or under nearly identical circumstances was not sufficient to make out a prima facie case under the McDonnell Douglas framework. (2) Whether the district court erred in holding that defendant carried its burden of production where defendant did not correctly identify the decisionmaker until several years after suit was filed and, by that time, he purportedly could not explain the reasons for the challenged employment actions. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment of the district court dismissing this EEOC enforcement action. The Commission alleges that the defendant violated Title VII inter alia by disciplining four African-American employees more severely than similarly-situated white employees for the same incident or under nearly identical circumstances. EEOC-R.1, 4. The Commission's action was consolidated with a suit brought by Thomas Turner under 42 U.S.C. §1981 and state law, No.03-2742 (E.D. La.); Turner also intervened in EEOC's action. EEOC-R.45, 31-32.<2> On May 19, 2009, the district court granted defendant's motion for summary judgment on the grounds that plaintiffs failed to make out a prima facie case under the McDonnell Douglas framework and to demonstrate that defendant's proffered explanation for the disparate treatment was a pretext for discrimination. EEOC-R.47; see also Turner-R.302. 2. Statement of Facts The Commission alleges that four African-American employees of Kansas City Southern Railroad ("KCS") were unfairly disciplined because of their race. All four employees were found to have committed some type of infraction and were either terminated or suspended. We summarize below the evidence regarding each of these individuals. 1. Thomas Turner. On October 15, 2002, Thomas Turner, a 29-year- veteran engineer, was engaged in "shoving," or slowly pushing backwards, a fire- damaged engine onto a spur track protected by a "derail," that is, a device on the track that causes the car to derail, thereby averting more serious damage. ROA v5-3072-3073 (Hearing Transcript). Because the track curved away from the side of the cab where he was sitting, Turner could not see where he was going and was wholly dependent on radioed instructions from his white conductor, Thomas Schmitt, who was at the rear of the train. See ROA v6-3978 (diagram). The parties agree that the train was moving very slowly, and Schmitt was telling Turner how much farther, in engine/car lengths, he needed to go. Turner stated that he heard Schmitt say "six cars, four cars, two cars, one car, half-car, easy" (meaning, "move extremely slow"). ROA v5-3100-3102. He expected to hear but never heard "that will do," or another directive that he stop. ROA v5-3101. Instead he heard Schmitt talking over the radio with people in the roundhouse, arranging a ride back to the office once the shove was completed. ROA v5-3109. Turner continued inching backwards briefly and then stopped; at that time, he learned that the rear engine's back wheels had crossed the derail. ROA v5-3102- 3104. Little or no damage resulted. ROA v8-5369-70(Turner Dep.). Schmitt never expressly denied that he was conversing with roundhouse personnel when the train derailed. Instead, he stated that he actually said, "that will do, that will do, that will do!" ROA v5-3112(Hearing). He also stated that, just before the derailment, when he realized that Turner was not stopping, he "tried to get into a line of vision" where Turner could see him, to no avail. ROA v5- 3114. Turner did not see him (ROA 45-3107), and no one else witnessed the incident. Schmitt had just excused the helper, Sidney Briscoe, to go to the restroom. ROA v5-3095-3096. Although Turner asked Trainmaster Jimmy Love to have the train's black boxes downloaded and synchronized with the radio tape recording, Love told him that neither the black boxes nor the audio tapes would be available. ROA v8-5371-5375 (Turner Dep.). Schmitt suggested that the radio might have failed, but it was not checked for a possible malfunction. ROA v8- 5379-80; ROA v5-3125 (Hearing). Neither man was tested for alcohol or drugs. ROA v6-3981-3982 (Turner Aff.¶10). KCS held an investigative hearing over which Paul Lobello presided. A few days after the hearing, a decision issued, over Lobello's signature, finding Turner solely liable for the derail and ordering his termination. ROA v4-2398. Schmitt was absolved of any fault for the accident and received no discipline. ROA v5-3140 (¶I-A-3). Turner grieved the decision from Labor Relations Manager Denise Brame,<3> through Labor Relations Director Kathleen Alexander, to the Public Law Board (composed of one union representative, one employer representative and one neutral arbitrator) ("PLB"). The internal appeals were denied. ROA v4-2412 (Brame), 2414(Alexander). On January 19, 2004, the PLB found sufficient evidence to establish Turner's "culpability" but ordered him reinstated, without backpay. ROA v4-2420. Turner brought suit in 2003; in 2006, his suit was consolidated with EEOC's enforcement action. KCS officials initially took the position that Lobello made the decision that Turner was at fault and assessed his punishment. See, e.g., ROA v6-3350 (1st Interrog. Responses at 2); see also ROA v6-3351-52 (same for Frank, Cargo, Thomas). KCS also asserted that Turner was fired because of the derailment and because he "was on a ‘last chance' status by directive of the [PLB] and was therefore subject to automatic termination." ROA v5-3146 (¶I-D-1b). Turner had been fired in 1999 after testing positive for alcohol in a random test and was reinstated only after an appeal to the PLB. The PLB order specifies that for five years Turner could be randomly tested for drugs and/or alcohol and would be subject to discharge if he tested positive again for illegal drugs or alcohol or refused to be tested. ROA v4-2426(¶¶3-4). KCS acknowledges that Schmitt had been discharged after testing positive for drugs following an accident in 1988; he was reinstated in 1989 after signing a waiver. See generally ROA v4-2649-2660. Lobello testified that, as always when he acted as investigating official, he did not actually sign Turner's disciplinary letter — his signature was stamped on — and he played no role in assessing punishment although he probably advised the company that both Turner and Schmitt were responsible for the accident, Turner slightly more so since he was the engineer. ROA v8-4726-4727(Lobello Dep.) ("level of discipline" was "no concern of mine"), 4731-4733 (did not sign letters), 4756-4757(both guilty). Finally, in 2008, KCS acknowledged that, most likely, General Superintendent of Transportation J.R. Thornell determined that Turner, but not Schmitt, was at fault and should be fired for the incident. ROA v6-3411-3412(#3). As General Superintendent, Thornell was the "person responsible for making disciplinary decisions regarding Transportation employees including engineers and conductors." ROA v10-6624(Thornell Decl.¶3). Thornell stated that, due in part to recent health problems, he could not recall the basis for his decision although he is sure it was not based on race. ROA v10-6625 (¶¶6-7); ROA v8-5252-53 (Thornell Dep.)(cannot remember looking at Turner's disciplinary record or making any disciplinary decisions).<4> Aside from the one positive alcohol test in 1999, Turner had only three prior infractions and his disciplinary record was clean for fourteen years. ROA v4-2405-2410(record). Weeks after the derailment, Schmitt and a white engineer, Frank Mouney, were engaged in conduct involving "public endangerment." ROA v8-4740-41 (Lobello Dep.). Moving too fast for conditions, they mistakenly ran onto a siding and sideswiped three hazardous materials tank cars, causing substantial damage to the cars and the locomotives they were driving. Each was suspended for 45 days, with another 45 days deferred; neither was discharged. ROA v8-4738-4744. See also ROA v6-3432 (Schmitt's 2002 accident); ROA v3-1512 (Mouney's 2002 accident). Labor Relations Director Alexander asserted that a derail is "generally" considered more serious than a sideswipe. ROA v4-2390 (Alexander Aff.¶12). In the fall of 1999, Schmitt was reprimanded for causing extensive damage by failing to switch cars in a safe manner and was discharged inter alia for negligence and failing to follow instructions. See ROA v3-1560-1561(records). 2. Lester Thomas. On February 14, 2004, Lester Thomas was working as a conductor when the white engineer, Joshua Hall, failed to timely stop the train during an operations test/training exercise. Cf. ROA v5-3322-3323(explaining testing). For the test, Manager of Operating Practices and veteran engineer Ted Wax created a "dark signal" by removing the green light from a signal. ROA v11- 6875-6876(Hearing). The train was supposed to stop before reaching the switch marked by the signal; the switch should then be checked and dispatch alerted to the dark signal. ROA v11-6875. When he realized the signal was approaching, Hall applied the train brakes, which stop every car as well as the engine. The train stopped safely but went beyond the switch. See, e.g., ROA v11-6886-6887. Trainmaster Lane Bonds conducted an investigative hearing into the incident. Wax opined that Hall was a "very good engineer" even though he overshot the stop. ROA v11-6880. Wax also agreed with Hall's decision to use the train brakes, rather than the emergency brake, since the emergency brake stops only the engine and may cause heavier cars towards the back to plow into cars ahead: "it was excellent train handling what he done." ROA v11-6887-6888 (adding that emergency braking could "tear the train up"). Thomas, as conductor, did not control the "actual physical movement of the train." See, e.g., ROA v8-4757(Lobello Dep.)(engineer's job). Thus, his only options were to stop the train using the emergency brake (ROA v11-6896) or advise the engineer to stop. Cf. ROA v9-5527(I-Wax Dep.)("converse" with engineer, then pull emergency brake). Wax admitted that, in his 21 years of experience as an engineer, he had never known of a conductor stopping a train with the emergency brake, adding: "If there is no danger, he absolutely wouldn't want to be [applying the emergency brake]." ROA v8-5524-5525(I-Wax Dep.); ROA v11-6888(Hearing) ("you put a train in emergency, you know you're asking for a lot more other trouble"); accord ROA v7-4664(Laughlin Dep.) (conductor can "throw the train into emergency" but that can cause damage). Wax also agreed that if the engineer is aware of the need to stop and chooses to do so conservatively but safely, even at the risk of a rules violation, the conductor should defer to the engineer's judgment. ROA v9-5536 (I-Wax Dep.). After the hearing, Hall and Thomas were held responsible for the missed signal; Thomas was also found to have failed to maintain an up-to-date "consist," or sequential list of train cars. ROA v4-2464; ROA v11-6912 (Hearing). Both men were fired, but 30 days later, at Thornell's direction, Hall but not Thomas was reinstated. ROA v7-4179 (Bonds Dep.) ("per J.R."). When he learned of this discrepancy, Bonds agreed that it seemed "odd." ROA v7-4186 (adding that he would have expected the men to be brought back together). KCS initially identified Bonds as the decisionmaker (ROA v5-3326, ¶7), but he testified that he "played no role whatsoever" in the disciplinary process after the hearing. ROA v7-4179-80 (Bonds Dep.). KCS later admitted that Thornell was the likely decisionmaker. ROA v6-3413 (#6); see also ROA v5-3334 (##5-6, Thomas), 3337 (##11-12, Hall). Thornell stated that he could not recall the basis for his decisions. ROA v8-5252 (Thornell Dep.)(cannot remember looking at Thomas's disciplinary record or making any decisions), v8-5310 (same for Hall). Thomas appealed internally. In January 2005, he accepted a leniency reinstatement, without backpay, in exchange for waiving his right to relief in this case. ROA v4-2676. In 2004, Thomas filed a charge with EEOC. During EEOC's investigation, KCS justified firing Thomas but reinstating Hall on the ground that Thomas had more than four disciplinary violations "within a three-year rolling period" whereas the missed signal was only Hall's third violation during that same period. See ROA v5-3326, ¶7 (citing KCS disciplinary guidelines). KCS also described Hall as merely an "engineer trainee." Id. Hall was not a trainee, however, but a full- fledged engineer. Cf. ROA v9-5800 (III-Wax Dep.) (trainee operating engine without certified engineer onboard would violate federal law). 3. Jesse Frank. Jesse Frank was a veteran engineer. On the morning of December 28, 2002, after working all night, Frank told Trainmaster Bonds and Assistant Trainmaster Paul Seghers that he needed to be "marked off," or excused, from his shift that night, because of a family emergency. ROA v5-3161-3162 (Hearing) (Frank wanted to alert them to the situation). Frank's only uncle was very ill, so Frank needed to go to the hospital, which was three hours away. ROA v5-3188. Both men told him to call the crew dispatcher because they did not have the authority to let him off. ROA v5-3162. Unlike employees who are ill, employees with family emergencies may mark off only if there is an available replacement. See ROA v4-2571 (Holmes Aff.¶7). That afternoon, after getting some rest, Frank called dispatch and told the dispatcher, Michelle Holmes, that he needed to mark off for a family emergency — specifically, his uncle's illness, adding that he had spoken to Bonds and Seghers and been told to contact dispatch. ROA v5-3163-64 (Hearing). Holmes then called several managers, finally reaching Bonds; he suggested a number of possible substitutes, including Dennis Mitchell, who was "just sitting there not doing nothing." ROA v5-3176-78. Without contacting any of those individuals, however, Bonds and Holmes decided not to excuse Frank. ROA v5-3178-3179. Shortly thereafter, Holmes told Frank that she did not have a replacement for him. ROA v4-3180-3183. He responded that he was sorry but, having rushed to the hospital, he was three hours away and could not return. ROA v5-3180-3185. Dennis Mitchell was then found to cover Frank's run. ROA v5-3209-3210. Lobello conducted the investigative hearing. Although the discipline letter bears his signature (ROA v4-2428), he neither signed it nor recommended any specific discipline. ROA v8-4731-4734 (Lobello Dep.). Rather, Thornell was most likely the decisionmaker. ROA v6-3412 (#4) (Thornell's decision). Frank was found guilty of missing a call, dishonesty/insubordination, and conduct adversely affecting the company, and was suspended for 90 days. ROA v4-2428 (letter). The maximum suspension for a missed call is 30 days. ROA v6-3417 (absenteeism policy). Although Frank had committed other infractions, including missed calls during his 30 years of service, none was within the Guidelines' "rolling three-year period." See ROA v4-2446 (Frank's record, most recent missed call was in 1997). One month after Frank's 90-day suspension, Engineer Frank Mouney received a five-day suspension for his third missed call in less than three years. See ROA v3-1510, 1511, 1513 (Mouney's record). Thornell stated that he could not recall the basis for his decision. ROA v8-5253 (Thornell Dep.) (cannot remember looking at Franks' disciplinary record or making any disciplinary decision regarding him). Frank appealed internally. Letters bearing the signatures of Brame and Alexander upheld the decision. ROA v4-2455-2458. He then appealed to the PLB where the excessively "harsh" suspension was reduced to 45 days. ROA v4- 2461. 4. Clarence Cargo. Between December 2002 and December 2003, veteran conductor Clarence Cargo received eight citations, mainly for minor infractions such as failing to fax a work order. ROA v4-2488-2495. Although he disagreed with these citations and filed two charges, he generally took KCS's offer to sign a waiver accepting responsibility, and was either reprimanded or suspended. He explained that he agreed to the waivers because he believed that Sonnier was looking for a chance to fire him. ROA v7-4347-4349 (Cargo Dep.) (reasoning, "when I come back off of this suspension I'm going to have a job so I signed [the waiver]") ("it was obvious . . . [t]hey were after my job").<5> Thereafter, on January 7, 2004, Cargo was working as the conductor on a KCS train driven by white engineer Scott Claiborne when the train derailed after passing over a switch belonging to CNIC, another railroad. Both men indicated that they had followed the instructions of CNIC's tower operator, Gary Catoir, to proceed slowly past the signal, making sure the switch was lined and locked properly. ROA v6-3439, 3502-3505 (Cargo); ROA v6-3439-40, 3510-3512 (Claiborne). After inspecting the switch visually from inside the cab, Cargo concluded that it was ready. ROA v6-3509-3510 (switch was on his side of the train). The switch, however, apparently did not lock properly, resulting in a derailment and some minor damage to each locomotive. ROA v6-3467($500 a piece). Ed Laughlin presided over the investigative hearing. Catoir did not appear but sent a statement indicating that he told the crew that, after stopping, they could "proceed past the signal displaying stop indication at restricted speed" "making sure that it [was] lined and locked properly," because he had been "having problems with" the switch. ROA v6-3441. Although most interactions between crews and switch operators are taped, ones at this control tower were not. ROA v6-3448. The switch was a dual control switch; where there is doubt as to whether such a switch is properly locked and lined, crews must receive permission to operate the switch by hand, get off the train, cut off the power, and manually lock the switch. It was undisputed that the crew was neither given permission nor otherwise told to do this. See, e.g., ROA v6-3503 (Cargo), 3511, 3512-3513 (Claiborne); ROA v7-4658-4659 (Laughlin Dep.). There was some disagreement about whether Claiborne should have asked for permission or Catoir should have volunteered it and insisted on compliance before allowing passage of the train. E.g., ROA v7-4660 (Laughlin Dep.) (operator need not give permission until crew asks), ROA v9-5777 (III-Wax Dep.51) (opining that Catoir violated rule by not telling Claiborne to handle the switch by hand and volunteering permission to do so). Cargo stated that he had visually verified that two earlier switches were locked and lined. ROA v6-3503-3505 (Hearing). Ted Wax indicated at the hearing that he did not think the crew had done anything wrong. See, e.g., ROA v6-3484-3485 (Hearing) ("if I looked at [a dual control switch] and I seen the switch was properly lined I'd proceed over it"). Wax later noted, however, that, after the hearing, he had learned that a dual control switch that looks lined and locked might still have a problem, so, if a crew is warned of a possible locking problem, the better approach is to take the power off and operate the switch by hand. ROA v9-5769-5771 (III-Wax Dep.). Following the hearing, Claiborne was suspended; Cargo was fired. ROA v3-1555 (Claiborne), ROA v4-2501 (Cargo). Although the disciplinary letters were issued over Laughlin's signature, he did not sign them and played no role in the process. ROA v7-4639, 4647-4649 (Laughlin Dep.). Laughlin stated that he believed the men were "equally responsible" and learned of the disparate discipline only later, when Claiborne was transferred into Laughlin's district. ROA v7-4648, 4662. He also indicated that he believes he told Sonnier that, while mistakes were made, the crew probably just did not fully understand the applicable rules. ROA v7-4648("crew did not know how to comply with the dual-control switch"), 4652 (crew unaware "of how to properly inspect [the] switch"). The likely decisionmaker was Thornell. ROA v6-3412 (#5); see also ROA v5-3331-3333 (##1-4) (admissions regarding Cargo and Claiborne). Thornell stated that he could not recall the basis for his decisions. ROA v8-5251-5252 (Thornell Dep.) (cannot remember looking at Cargo's disciplinary record or making any disciplinary decisions). Cargo's internal appeals through Brame and Alexander were denied. ROA v4-2503-2506.<6> He then appealed to the National Railroad Adjustment Board ("NRAB"), which upheld the liability determination, but ordered Cargo reinstated without backpay. ROA v4-2508 (noting Claiborne relied on Cargo's assessment of switch). 3. District Court Decision The district court granted KCS's motion for summary judgment. ROA v12- 8076 (Memorandum Ruling). The court stated that Lobello "determined" that Turner "violated numerous KSC Operating Rules," citing the violation letter bearing Lobello's name as well as several pages from Lobello's deposition where he stated that he advised the company that both Schmitt and Turner committed the alleged infractions. ROA v12-8077. The court continued, "as a result of this [] incident and his prior disciplinary history" — including the 1999 drug/alcohol test — Turner was discharged. The court added that, when he appealed this determination, Denise Brame, who is African-American, "found the discipline was fully warranted" and "clearly supported" by the underlying facts, while Kathleen Alexander, who is white, also "determined that Turner was guilty of the rule violations and denied his appeal." ROA 8077-8078. Finally, the court noted that the PLB found "sufficient evidence" to establish "liability," but converted his discharge into a suspension without backpay. ROA v12-8078. The court stated that Thomas was terminated for failing to update his train consist and to stop the train before it ran past a dark signal during a training exercise. ROA v12-8080. According to the court, KCS based the difference in treatment of Thomas and his engineer, Hall, on the fact that Thomas had "nine prior disciplinary actions" while Hall had only four. Id. The court also noted that in April 2009 the Commission withdrew its claim for monetary damages on behalf of Thomas but reserved its right to seek injunctive relief. ROA v12-8081 n.7. Regarding Frank, the court stated that he informed Seghers and Bonds that, due to a family emergency, he needed to be excused from work that night. Both supervisors told Frank to contact the crew dispatcher because they lacked the authority to grant his request. "[L]ess than six hours before his next shift was scheduled to begin," Frank called Holmes, and, according to the court, "implied that his request had already been authorized by Seghers and Bonds." ROA v12- 8079. The court found that, because "there were no extra employees to work on Frank's shift," Holmes attempted to verify that Seghers and Bonds had authorized Frank's request. When they confirmed that they had not, Holmes told Frank that she could not mark him off; he responded that he would not appear for the shift. Id. The court stated that, after an investigative hearing, Lobello "determined" that Frank had violated several rules and "was dishonest in his attempt to get time off." Id. "As a result of Frank's violations and the 13 prior disciplinary actions he received between 1985 and 1999," the court concluded, he was suspended for 90 days without pay. Id. The court added that Brame denied his appeal, as did Alexander, who "determined" that his discipline was "clearly justified in light of his substantial disciplinary history." Although the PLB "found Frank at fault," the court concluded, it reduced his 90-day suspension by half. ROA v12-8079-8080. As for Cargo, the court stated that he had 16 prior disciplinary actions, including a number of recent ones. ROA v12-8081-8082. Thereafter, in January 2004, the court continued, a KCS train on which Cargo was the conductor passed through an improperly lined switch and derailed. After an investigative hearing, he was fired for having violated several KCS operating rules. When he appealed this decision, the court found, both Brame and Alexander "reviewed the transcript from the hearing and Cargo's disciplinary history and determined his dismissal was justified." ROA v12-8082 (citing appeal letters). The court added that Cargo then appealed to the NRAB which found that he had "violated numerous regulations," but, in light of his 31-year employment with KCS, ordered him reinstated without backpay. Id. Turning to the parties' legal arguments, the court initially agreed to strike Alexander's assertion that, in making disciplinary decisions, Thornell "would review the transcript, seek assessments from the investigative officer, Labor Relations personnel, or other individuals, and review the employee's disciplinary history" because it was not based on personal knowledge. The court rejected EEOC's challenges to a number of other KCS exhibits. ROA v12-8087-8090. In particular, the court ruled that the letters from Denise Brame denying the claimants' internal appeals were either business records, admissible under FRE 803(6), or non-hearsay, admissible not for the truth of the matter but "to demonstrate the multiple levels of review afforded to each Plaintiff and the information available to the decision-makers at the time the adverse employment decisions were made." ROA v12-8089. The court analyzed the Commission's claims under the McDonnell Douglas framework. The court stated that, to make out a prima facie case on a claim of disparate discipline, a plaintiff must show either that the individual did not violate the rule in question or, if he did violate the rule, that similarly-situated white employees were treated more favorably under "‘nearly identical' circumstances." ROA v12-8091-8092 (citation and internal quotation omitted). That is, the plaintiff must "point to individuals who have dealt with the same supervisor, have been subject to the same standards, and engage[sic] in the same conduct without any mitigating or distinguishing characteristics." ROA v12-8092 (citation and internal quotation omitted). The court concluded that the Commission could not satisfy that burden with respect to any of the claimants. Specifically, the court rejected the argument that Turner had not violated any rules, noting that everyone the court identified as a decisionmaker — Lobello, Thornell, Brame, Alexander and the PLB — determined that he had. ROA v12- 8092. As for whether his punishment was excessive, the court found no evidence that the proffered comparators had comparable disciplinary histories or had committed comparable offenses. ROA v12-8092-8094(listing Schmitt (not at fault, only one previous violation), Mouney (less serious offense, dissimilar disciplinary history), Hall (dissimilar disciplinary history)). Regarding Thomas, the court noted that, after an investigation, both he and Hall were found to have violated the specified rules. The court noted that, while Thomas was discharged and Hall was not, Thomas had eight prior infractions whereas Hall had only four, "all . . . relatively minor," so the "circumstances under which discipline was assessed . . . were not ‘nearly identical.'" ROA v12-8095- 8096 & n.24 (adding that, as an "additional indication" that Hall was not treated more favorably, he was later fired for committing another infraction). Regarding Frank, the court found that the recording of his phone conversations with the dispatcher confirmed that he violated the rule regarding missed calls. As for his punishment, the court acknowledged that Mouney had more missed calls but noted that, unlike Frank, he had not been found to have committed other violations including insubordination, dishonesty and conduct adversely affecting the company's interest. ROA v12-8094-8095. As for Cargo, the court asserted that Laughlin as well as Thornell, Brame, Alexander, and the NRAB had all found that Cargo was "at fault" in the switch incident. Brame and Alexander, the court added, also "evaluated Cargo's prior disciplinary history" in deciding that discharge was warranted. Further, the court noted, while the NRAB ordered Cargo reinstated, it "rejected [his] claim that the discipline assessed was discriminatory or unreasonable." ROA v12-8097. The court did not mention Claiborne's suspension. While believing that plaintiffs' failure to establish a prima facie case ended the case, the court "in an abundance of caution" also addressed the remaining steps of the McDonnell Douglas analysis. ROA v12-8103. The court stated that KCS's reasons for the adverse actions were its findings that, after having an opportunity to testify at an investigative hearing, each of the claimants had committed an infraction of KCS policies. In addition, acknowledging for the first time that Thornell played a role in the decisionmaking, the court noted that Thornell had "evaluated the circumstances of the work rule violations and assessed discipline," and these decisions were reviewed and affirmed internally. ROA v12-8103-8104. Thus, the court stated, "KCS maintains" that the discipline was not discriminatory but rather "necessary given the nature of the infraction," the claimants' "prior disciplinary history, and KCS's disciplinary guidelines." ROA v12-8104. Finally, the court concluded that plaintiffs could not establish that what the court viewed as the proffered reasons for the decisions were pretextual. In the court's view, this requires "substantial evidence" rebutting each of the proffered reasons "through evidence of disparate treatment" or evidence that the reason is "unworthy of credence." ROA v12-8104. Here, the court stated, there was "no evidence of disparate treatment" since the plaintiffs did not identify any non- blacks who were "treated more favorably under ‘nearly identical circumstances.'" ROA v12-8104-8105. Nor, the court concluded, could the plaintiffs show that KCS's proffered reasons were false or unworthy of credence. On the contrary, according to the court, all of the challenged decisions (except Thomas's) were "reviewed by neutral and independent arbitrators" at the PLB and NRAB "who considered all the evidence, arguments and submissions made by the [claimants] and KCS and concluded that [claimants] engaged in misconduct and violated KCS rules/policies." ROA v12-8105 (rulings "strongly support" validity of KCS's reasons). The court rejected the Commission's argument that KCS's reasons should be disregarded because Thornell was the sole decisionmaker, and he could not remember why he did what he did. The court found that Thornell was not the sole decisionmaker. Instead, according to the court, the investigating officials were also responsible for determining whether the violations had been proved, and the decisions were reviewed by two levels in the Labor Relations Department. ROA v12-8106. In any event, the court continued, even if Thornell was the sole decisionmaker, "the unsupported and conclusory allegations of pretext proffered by the EEOC are insufficient to rebut the legitimate, nondiscriminatory . . . reasons set forth by KCS." ROA v12-8106-8107. In particular, the court reasoned, the EEOC "fails to provide any citations or references to the record in order to support [its] allegations" that KCS, for example, misidentified the decisionmaker, did not consider disciplinary histories, or provided inconsistent reasons that shifted over time. ROA 8107(original emphasis). While pretext evidence may be "buried in the record," the court stated, "that evidence is not properly before the court." ROA v12-8108. STANDARD OF REVIEW This Court reviews the grant of summary judgment de novo. Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 257 (5th Cir. 2009). Summary judgment may be granted if the movant demonstrates that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Patrick v. Ridge, 394 F.3d 311, 314 (5th Cir. 2004); Fed. R. Civ. P. 56. SUMMARY OF ARGUMENT The district court erred in granting summary judgment to defendant. The Commission alleges that KCS violated Title VII when the same decisionmaker, J.R. Thornell, disciplined Turner, Thomas, Frank, and Cargo more severely than their white colleagues for the same incident and/or under "nearly identical circumstances." Under the three-step, burden-shifting McDonnell Douglas proof scheme, if plaintiff establishes a prima facie case of discrimination, the burden shifts to defendant to rebut the inference raised by the prima facie case with evidence that a "legitimate, non-discriminatory reason" motivated the challenged decision. At that point, the burden shifts back to plaintiff to demonstrate that the proffered reason was not the true reason for the decision but instead merely a pretext for discrimination. In analyzing the prima facie case under this proof scheme, the district court applied too high a standard. As the Supreme Court has emphasized, because the requirements of a prima facie case are "minimal," plaintiff's burden is "not onerous." Here, the evidence was sufficient to support a finding under one or more of three tests recognized by this Court for disparate discipline cases like this one: (1) the African-American individual did not commit the alleged infraction; (2) the African-American individual was disciplined more severely than a white colleague engaged in the same incident; (3) the African-American individual was disciplined more severely than a white colleague under "nearly identical circumstances." The court erred in requiring more. There is evidence that Turner, an engineer, was relying on instructions from his white conductor, Schmitt, to safely shove an engine backwards onto a spur track. The last information Turner received from Schmitt was that the derailer was very close. He then heard Schmitt chatting over the radio with other coworkers. Although the train was creeping along, it derailed, causing little or no damage. Turner was fired; Schmitt was absolved of liability. Their disciplinary histories were comparable; they were engaged in the same activity; and Thornell made both decisions. This evidence suffices to raise an inference of discrimination under all three tests. There is evidence that Thomas was working as a conductor on a train driven by Hall when it failed to stop at a "dark signal" during an operations test. Thornell fired both men, but ordered Hall — not Thomas — reinstated after 30 days although they had engaged in the same activity and had comparable disciplinary histories. This evidence suffices to raise an inference of discrimination under all three tests. There is evidence that Frank, an engineer, was suspended for three months after missing one shift — the first time in six years — to be with his uncle in the hospital. A replacement, described as "just sitting there not doing anything," covered Frank's run. Thornell found Frank liable not only of missing a shift but also of insubordination, dishonesty, and conduct adversely affecting the company. One month later, a white engineer missed his third shift in three years and was suspended for five days. This evidence suffices to raise an inference of discrimination under the "nearly identical circumstances" test. Finally, Conductor Cargo and Engineer Claiborne were on a train that crossed over a "dual-control" switch and derailed, causing minor damage. Both men believed that they were following the tower operator's instructions for the switch; both believed the switch was lined and locked. Thornell fired the African- American Cargo and suspended the Caucasian Claiborne for 30 days. This evidence suffices to raise an inference of discrimination under the "same incident" test, thereby shifting the burden to KCS to explain the disparate treatment. The court erred in rejecting this evidence as insufficient and then compounded the error by finding that KCS's post-hoc justifications for the decisions satisfied the company's burden of production at step two of the McDonnell Douglas proof scheme. KCS did not correctly identify Thornell as the decisionmaker until nearly four years after the last decision was made. By then, Thornell professed not to remember why he did what he did. There is, therefore, no evidence of what his actual motivations were. Had KCS promptly identified Thornell as the decisionmaker, he might well have had a clearer recollection of the facts. As it is, however, the Commission has not had the "full and fair opportunity" McDonnell Douglas contemplates to show the proffered reasons are pretextual. The court's decision to nevertheless grant summary judgment to defendant was error. The case should go to a jury. ARGUMENT THE EVIDENCE IS SUFFICIENT TO SUPPORT A FINDING THAT DEFENDANT DISCRIMINATED AGAINST TURNER, THOMAS, FRANK, AND CARGO BECAUSE THEY ARE AFRICAN-AMERICAN. The district court erred in holding that the evidence is insufficient to support a finding that KCS disciplined Turner, Thomas, Frank, and Cargo more harshly than similarly-situated white employees because they are African-American. The Commission presented its case under the three-step McDonnell Douglas proof scheme, which "established an allocation of the burden of production and an order for the presentation of proof in discriminatory-treatment cases." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). Under that scheme, the plaintiff must first make out a prima facie case. This burden is "not onerous." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The burden then shifts to the defendant to produce evidence that the challenged employment decision was made for a "legitimate, non-discriminatory reason." Id. at 254. If the employer carries its burden of production, the burden shifts back to the plaintiff to prove intentional discrimination with evidence, for example, that the non-discriminatory reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Reeves, 530 U.S. at 142-43 (citing Hicks, 509 U.S. at 507-08; Burdine, 450 U.S. at 252-53). While purporting to utilize the McDonnell Douglas proof scheme, the court made two significant errors. First, the court demanded more evidence than is required from the plaintiffs to meet their "not onerous" burden to establish a prima facie case. There is ample evidence of a prima facie case for all four of the claimants. Second, sidestepping the fact that the actual decisionmaker, J.R. Thornell, could not explain the bases for the challenged employment decisions, the court simply accepted post-hoc explanations from non-decisionmakers. In fact, the missing explanations mean that defendant did not satisfy its burden of production at the second stage of the proof scheme. Summary judgment therefore was improperly granted. A. Evidence that KCS punished the four African-American employees more severely than similarly-situated white employees is sufficient to establish a prima facie case under the McDonnell Douglas framework. The district court erred in finding that the Commission could not establish a prima facie case under McDonnell Douglas with respect to any of the four claimants. As noted above, this burden is "not onerous." Burdine, 450 U.S. at 253. Indeed, both the Supreme Court and this Court have described the requirements as "minimal." Hicks, 509 U.S. at 506; Thornbrough v. Columbus & Greenville Ry. Co., 760 F.2d 635, 638-39 (5th Cir. 1985) ("Generally, to establish a prima facie case, a plaintiff need only make a very minimal showing."), abrogated on other grounds by Hicks, 509 U.S. at 513. Plaintiffs may satisfy this burden by showing, for example, that the injured employee belongs to a protected class, was qualified for his job, and was subjected to an adverse employment decision under circumstances that give rise to an inference of unlawful discrimination. See, e.g., Burdine, 450 U.S. at 253-54. In finding that the Commission had not satisfied its burden, the district court centered on the last of these elements: circumstances giving rise to an inference of discrimination. This Court has recognized at least three ways in which plaintiffs may establish that element in a case such as this alleging discriminatory discipline.<7> First, a plaintiff may show that the disciplined employee did not violate the rule he is charged with violating. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995). In Mayberry, for example, the Court concluded that plaintiff, who was suspended for producing too many defective parts, made out a prima facie case with evidence that his machine could have malfunctioned, as had happened in the past, or that there could have been a software problem — something the company's own investigation had suggested. See id. at 1091-92. Second, a plaintiff may show that an employee of one race was punished more severely than an employee of another race for participation in essentially the same act. See Perez v. Texas Dep't of Criminal Justice, 395 F.3d 206, 212-13 (5th Cir. 2004) (discussing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 275-76 (1976)). In McDonald, white and black employees were both accused of stealing a shipment of antifreeze from their employer but the employer terminated the white employees while retaining the black employee. 427 U.S. at 275-76. According to McDonald, "an allegation that other ‘employees involved in acts against (the employer) of comparable seriousness . . . were nevertheless retained . . .' is adequate to plead an inferential case that the employer's reliance on his discharged employee's misconduct as grounds for terminating him was merely a pretext." Id. at 283 (quoting McDonnell Douglas, 411 U.S. at 804). Although the Supreme Court used the phrase "comparable seriousness," this Court in Perez indicated that, standing alone, that is not enough. The key to McDonald, the Court explained, was that the comparator was treated more favorably even though he and the white plaintiffs had engaged in the same act, and "the only arguable distinction between [the comparator and plaintiffs] was their degree of culpability." Perez, 395 F.3d at 212 (vacating jury verdict for plaintiff where jury was instructed to consider only whether the misconduct was of comparable seriousness but plaintiff and comparator did not engage in the same act). While additional evidence is required where the acts are merely "comparable," therefore, no additional evidence is required where the plaintiff and comparator were participants in the same activity. Third, plaintiffs may show that an employee of one race was disciplined more severely than a similarly-situated employee of another race; such a claim normally requires evidence that the disparate treatment occurred "under nearly identical circumstances." Perez, 395 F.3d at 213; accord Mayberry, 55 F.3d at 1090-91; Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991). While other factors are also considered, the focus is on the alleged misconduct. See, e.g., Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001) (misconduct must be nearly identical); Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990) (same); see also Okoye v. University of Texas, 245 F.3d 507, 515 (5th Cir. 2001) ("plaintiff must show that the employer ‘gave preferential treatment to [another] employee under ‘nearly identical circumstances'; that is, ‘that the misconduct for which [the plaintiff] was discharged was nearly identical to that engaged in by . . . [other] employee[s]'") (quoting Little, 924 F.2d at 97) (deletions in Okoye). Recently, this Court explained and applied this "nearly identical" standard in a case against this same employer. See Lee v. Kansas City S. Ry., 574 F.3d 253 (5th Cir. 2009). The plaintiff in Lee, an engineer with two prior moving violations, was fired after going through a stop signal in the railyard and failing to obtain an all-clear signal before backing up his train. He sued, arguing that he was treated less favorably than a white engineer with three prior moving violations who was granted leniency and reinstated after running a stop signal in a rural area. Id. at 258-59. As in this case, Judge Walter granted summary judgment to defendant, holding that plaintiff had failed to make out a prima facie case. This Court reversed, explaining that the "employment actions being compared will be deemed to have been taken under nearly identical circumstances when the employees being compared held the same job or responsibilities, shared the same supervisor, or had their employment status determined by the same person and have essentially comparable violation histories." Id. at 260. Moreover, the Court continued, "critically," the alleged misconduct of the two employees "must have been ‘nearly identical'": "If the ‘difference between the plaintiff's conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer,' the employees are not similarly situated for the purposes of an employment discrimination analysis." Id. (original emphasis). The Court stressed, however, that it did not "interpret ‘nearly identical' as synonymous with ‘identical'" as this would present an "essentially insurmountable" requirement. Id. It is enough, for example, if the employees' respective "track records" are "comparable"; they "need not comprise the identical number of identical infractions." Id. at 261. In addition, "the similitude of employee violations may turn on the ‘comparable seriousness' of the offenses for which the discipline was meted out, regardless of how a company codes an infraction under its rules and regulations." Id. (employer may not avoid liability for discrimination "simply by coding one employee's violation differently from another's"). Applying that standard, the Lee Court concluded that plaintiff was sufficiently similar to his comparator to make out a prima facie case. The Court noted that the comparator had received a lighter punishment for an "indistinguishable" offense despite having a comparable employment history and holding the same job. Id. at 261-62 (rejecting as unpersuasive defendant's argument that they were dissimilar because they had different immediate supervisors, one of plaintiff's prior violations was fairly recent, and comparator missed stop in a rural area). Similarly, here, the evidence was more than sufficient to establish a prima facie case under one or more of these tests with respect to Turner, Thomas, Frank, and Cargo. As in Lee, the court erred in requiring more. 1. Thomas Turner The Commission can make out a prima facie case under all three tests for Thomas Turner, who was fired for a derailment resulting in little or no damage to the track or train. Specifically, under the first test, a jury could find that he was improperly found to have committed any infraction. Initially, the derailment could have been caused by mechanical, rather than human, error. Turner stated, without contradiction, that he heard the conductor, Schmitt, indicate that the train was close to the derailer but he never heard a signal to stop. Schmitt posited that, although he gave the proper signals, Turner could not hear them because the radio must have malfunctioned. ROA v8-5379-80(Turner Dep.); ROA v5- 3125(Hearing). The radio was never tested and, atypically, there is no black box or other audio recording. ROA v8-5371-5375 (Turner Dep.32-36). Because undisputed evidence shows that the train was inching along when it crossed the derail and Schmitt's radio instructions were effectively Turner's eyes, if a "radio failure" prevented Turner from hearing the instructions, he arguably did not commit an infraction by crossing the derail. Cf. Mayberry, 55 F.3d at 1091-92 (prima facie case where plaintiff's machine could have malfunctioned). Alternatively, evidence suggests that it was Schmitt, rather than Turner, who caused the derailment. To shove the engines safely onto the siding, Turner was entirely dependent on Schmitt's directions. He stated, however, and Schmitt did not deny, that just before the train crossed the derail, he heard Schmitt talking over the radio with employees in the roundhouse. ROA v8-5379 (Turner Dep.); ROA v5-3109(Hearing). If believed, this would support a finding that Schmitt was distracted and, so, failed to give Turner a signal to stop. Nothing in Turner's lengthy employment history suggests that he was likely to become distracted during the shove. Although he had been fired in 1999 after testing positive in a random alcohol test, KCS clearly did not suspect him of drinking during the shove since it opted not to test him for drugs or alcohol. In contrast, Schmitt had been discharged in 1999 inter alia for negligence and failing to follow instructions. ROA v3-1561(infraction record). Such an infraction arguably suggests a failure to pay attention. See also ROA v6-3432 (Schmitt's 2002 accident record, where train mistakenly went onto a side track, sideswiping and seriously damaging cars carrying hazardous materials), ROA v3-1560 (1999 failure to switch cars safely). Despite this evidence, however, Schmitt was absolved and Turner held solely responsible for the derailment. Taken as a whole, this evidence is sufficient to support a prima facie case under the first — no violation — test. There is also sufficient evidence to make out a prima facie case under the second — same incident — test. When the train derailed, Turner and Schmitt were both engaged in shoving the disabled engine onto the spur track. Turner was following instructions given by Schmitt, and both were responsible for performing the task safely. Lobello, the investigating official, stated that, to the extent he offered KCS his views on the case, he would have recommended that both Turner and Schmitt be held responsible for the derail, Turner slightly more so as engineer. ROA v8-4756-4757(Lobello Dep.). Instead, however, Thornell chose to fire the African-American Turner, placing all the blame for the accident on him, and completely acquitting the Caucasian Schmitt of any liability. To reach this decision on non-discriminatory grounds, Thornell would have had to reject any recommendation from Lobello; find that the radio did not malfunction; and, despite the absence of any credibility findings, credit Schmitt's testimony that he made every effort to avert the accident while disbelieving Turner's unrebutted statement that Schmitt was in fact chatting over the radio at the last critical moments before the derail — all without considering race. A jury could find that Turner's race played a role in that result. KCS may argue that this test is inapplicable because Schmitt and Turner were doing different activities: Turner was in front, driving the train whereas Schmitt was in back, supposedly giving directions. In fact, however, they were working together on a single task — safely shoving the disabled engine onto the spur track. Indeed, while it distinguished conductors from engineers when discussing Turner — the engineer who was disciplined more harshly than his conductor, KCS took the opposite tack when discussing Cargo and Thomas, the conductors who were disciplined more severely than their engineers. Compare ROA v10-6576 with v10-6581(PSJ Opp.). There, the company stressed that the conductor is "just as responsible for the operation of the train as [is] the engineer." ROA v10-6581. The company may be able to reconcile these two facially inconsistent statements but it has not done so yet; whether or not it can is a question for the jury, not an issue for this Court in the first instance. KCS may also argue that Schmitt was not disciplined because he was found not to be at fault. That is precisely the point. There is no obvious explanation for why Thornell determined that Thomas but not Schmitt was responsible for the derailment. Because the disparate discipline followed from that determination, the evidence is sufficient to support a finding under the second — same incident — test. As for the third — nearly identical circumstances — test, the district court erred in finding that Turner could not properly be compared to either Schmitt or Frank Mouney for purposes of establishing a prima facie case. The court rejected Schmitt as a comparator not only because he was found blameless for the derailment but also because of Turner's "significant disciplinary history" which, the court enumerated, consisted of four incidents over thirty years: a 1982 deficient train inspection, a 1988 failed brake test, and failed drug/alcohol tests in 1974 and 1999, the latter preceding his "last-chance reinstatement." Order at 17, ROA v12-8092. In contrast, the court reasoned, Schmitt's disciplinary record "merely included" a reprimand for "extensive damage" in 1999. Order at 18 & n.20, ROA v12-8092. This was wrong for several reasons. By its terms, the last-chance reinstatement order would justify Turner's termination if he had violated its conditions — by testing positive for drugs or alcohol or refusing to take a drug/alcohol test. ROA v4-2426 (PLB order). Here, there was no violation; KCS tested neither Turner nor Schmitt after the derailment. ROA v6-3981-3982. As the court's enumeration confirms, Turner's disciplinary record was otherwise clean for fourteen years. ROA v4-2405-2410. In contrast, Schmitt's disciplinary history is not so benign. While listing Turner's 1974 drug test, for example, the court ignored KCS's admission that Schmitt had been discharged after testing positive for drugs in 1988, and, unlike Turner's random test in 1999, Schmitt's positive test followed an accident. ROA v4-2649, 1656, 2658 (test-related materials). Moreover, as noted above, in addition to the "1999 letter of reprimand for extensive damage" (which resulted from a failure to switch cars safely, ROA v3- 1560), Schmitt was discharged in December 1999 for failing to follow directions and negligence. ROA v3-1561. And only weeks after the derailment, Schmitt was suspended for 45 days (with 45 days deferred), in connection with violation of restricted speed, failure to protect a shoving movement on the main line resulting in a run through of the crossover switch, and sideswiping two cars carrying hazardous materials, resulting in substantial damage. ROA v6-3432(Schmitt's 2002 accident record). While Alexander asserted that a sideswipe is "generally" considered less serious than a derail (ROA v4-2390(Aff.¶12)), a jury might well conclude that this general rule does not render Schmitt dissimilar since the derail resulted in minimal damage whereas Schmitt's sideswipe involved hazardous materials and extensive damage. As for Mouney, he was driving the train in the 2002 sideswipe incident, described above. Like Schmitt, he was suspended for 45 days, with 45 days deferred, for this accident. The court concluded that he was not comparable because, apart from this incident, he had only a string of missed calls (some quite recent), which were materially different from Turner's 1999 alcohol infraction. Order at 18 (citing Doc.116-55, Exh.A42), ROA v12-8093. As noted above, however, Turner did not violate the last-chance order, he had no other infractions since 1988, and, unlike the sideswipe, little if any damage resulted from the derail. A jury therefore could find that Mouney as well as Schmitt were proper comparators for Turner under the third —substantially identical circumstances — test. 2. Lester Thomas The Commission can also make out a prima facie case under all three tests for Lester Thomas, who was fired after his train failed to stop during a training exercise and he was found not to have maintained an up-to-date "consist." Under the first — no violation — test, Thomas was simply working as the conductor on the train when the engineer, Joshua Hall, failed to stop at a dark signal during a training exercise but did stop, safely, a short distance beyond the switch. The rule that Thomas was charged with violating states that, after the train stops, a crew member must check the switch where there is a dark/red block. ROA v11-6880 (Hearing). Here, the train did not stop, and no damage or injury resulted — as noted above, it was a training exercise. As conductor, Thomas's only options were to advise the engineer to stop or to slam on the emergency brake — which might well have damaged the track and/or cars. Ted Wax, who set up the exercise, admitted that he was unaware of any conductor stopping a train with the emergency brake while an engineer was at the helm, and he approved the engineer's decision to apply the train brakes and continue past the signal, rather than use the emergency brake. ROA v11-6887-6888. A jury could find that, under these circumstances, Thomas violated no rule and, so, was not responsible for Hall's failure to stop at the dark signal. See ROA v4-2650 (MSJ Supp Memo) (engineer is "responsible for controlling the movement of the train"; conductor/foreman "[i]s not"). This would not excuse any failure to update his consist, but KCS has not argued that that infraction, alone, would justify his discharge. As for the second — same incident — test, both Thomas and Hall were on the train that failed to stop at the dark signal. After a hearing, Thornell determined that both men were responsible for the infraction and both were then purportedly fired. Even though Hall was driving the train, however, Thornell soon ordered him reinstated, essentially converting the discharge into a 30-day suspension. ROA v7-4179 (Bonds Dep.). Thomas was not brought back until he agreed to a leniency reinstatement, waiving his right to relief in this case, over one year later. ROA v4-2476 (waiver). Bonds, the investigating official, found the discrepancy "odd," assuming that if Hall came back, Thomas would too. ROA v7-4186. Since Thomas was the conductor and, so, not "responsible for controlling the train" (ROA v4-2650), the fact that he was fired while the engineer was merely suspended is sufficient to support a finding under the second - "same-incident" test. KCS may argue that Thomas and Hall cannot be compared because Thomas had a longer disciplinary history than did Hall, and failed to update his "consist." On the contrary, nothing in McDonald suggests that comparative evidence, aside from the disparate discipline, is part of the prima facie case under this test. Rather, once the burden of production shifts, KCS is free to come forward with evidence that the disparity resulted from the differences in their respective disciplinary histories and/or from Thomas's additional recordkeeping violation. That is precisely the function of the burden-shifting under the McDonnell Douglas framework. But the Commission is not required to disprove such factors in order to establish prima facie case. Turning to the third — nearly identical circumstances — test, the district court erred in finding that Hall was not a proper comparator for Thomas. As noted above, for running past the dark signal, Thornell fired Thomas while effectively suspending Hall for 30 days. Identical circumstances, same decisionmaker, similar disciplinary history and, although Thomas did not himself drive past the signal, to the extent KCS treats conductors and engineers the same for disciplinary purposes, the same responsibilities. See Lee, 574 F.3d at 260-61. The district court found that Hall and Thomas were not comparable because, in the court's view, their disciplinary records were dissimilar: Thomas had committed more infractions in his twenty-plus years with the railroad than Hall had in his four. See ROA v12-8093, 8095-8096. As the Lee Court stressed, however, the respective "track records" must be "comparable" but "need not comprise the identical number of identical violations." 574 F.3d at 261. Here, they are comparable. Between 2000 (when Hall started working) and 2004, Thomas was charged with failing to sign a work order, failing to sound the horn, a derailment, occupying the main track without proper authority, and failing to remove excess cars and secure the brakes. ROA v4-2467-2471(record). During the same period, Hall was charged with misordering train cars, a derailment, a sideswipe, and "proceeding past a blue flag" (which entails entering a restricted area where workers are performing tasks such as track repair). ROA v3-1550- 1553. While the district court described Hall's infractions as "relatively minor" (ROA v12-8096), he received several actual and/or deferred suspensions. The court also noted that, for several of his infractions, Hall was not driving the train. See ROA v12-8093 n.20. That fact reinforces, rather than diminishes, Hall's similarity to Thomas. As a conductor, Thomas was never driving the train. 3. Jesse Frank. The district court erred in holding that the Commission could not make out a prima facie case under the third — nearly identical circumstances — test with respect to Jesse Frank, an engineer who received a long suspension after missing a single shift. As a comparator, the Commission identified Frank Mouney, also an engineer. Although the district court rejected this comparison, a jury could find that Frank was punished much more severely than Mouney for substantially identical misconduct. In December 2002, Frank missed one shift — after giving six-hours notice (or more, considering his morning discussion with Bonds) — to be at the bedside of his only uncle, who was extremely ill and in the hospital. It was his first missed call in nearly six years. See ROA v4-2446. In contrast, less than a month later, Mouney received a five-day suspension for a missed call, his third in less than three years. ROA v3-1513, 1511, 1510. The district court acknowledged this fact but determined that Mouney was not comparable because Frank was also found guilty of dishonesty, insubordination and engaging in conduct that adversely affected the interest of the company. ROA v12-8094. A jury could find, however, that Frank's conduct in missing a call was, at most, no worse than other employees charged with missing a call. Specifically, when he learned that his uncle had been hospitalized, Frank finished his all-night shift and informed Trainmaster Bonds that he would miss his next shift, beginning that same night, due to a family emergency. Bonds responded that he lacked authority to excuse Frank, so Frank must check with dispatch. After getting some sleep, he did. After discussing possible substitutes, however, the dispatcher and Bonds decided that Frank would not be excused. Already with his uncle, Frank told the dispatcher that he was sorry but he could not return for his shift. A substitute was found to cover the run so it did not have to be annulled. If this conduct constitutes insubordination, for example, any employee who misses a call should likewise be considered insubordinate. Defendant argued that Frank's conduct was "more serious than a typical missed call because he absented himself from [New Orleans] and then knowingly refused to appear for work when other personnel were not available to cover his shift." ROA v4-2349 (PSJ Opp.). Those reasons make no sense. Where an employee is when he misses a shift is irrelevant — he is not at work, and, we presume, missed calls normally occur because other personnel are unavailable to cover the shift. In any event, here, KCS did find a substitute — Dennis Mitchell. At the hearing, Bonds complained that this required pulling Mitchell off the job that he was "blocked on" (as permitted by the collective bargaining agreement), but, in speaking to the dispatcher, Bonds had described Mitchell as "just sitting there not doing nothing." Compare ROA v5-3209-3210(Hearing) with v5-3176- 3178(phone recording). Moreover, in light of his history of repeated violations, Mouney could have been charged with both insubordination and engaging in misconduct that affected the company's interests. But it was Frank, who is African-American, rather than Mouney, who is white, who faced the additional charges and what even the PLB described as an excessively "harsh" punishment (ROA v4-2641). 4. Clarence Cargo Finally, there is sufficient evidence to establish a prima facie case under the second — same incident — test with respect to Clarence Cargo, who was acting as conductor on a train driven by Scott Claiborne when the train passed over a dual- control switch and derailed, causing minor damage. Both Cargo and Claiborne received the same instructions from the tower operator; both understood that the switch was to be checked visually from within the cab and they were to proceed past the switch slowly if it appeared to be properly lined and locked, which it did. Claiborne, as engineer, did not expressly ask the tower operator for permission to operate the switch by hand, and Cargo did the visual checking since the switch was on his side of the cab. KCS Manager Ted Wax indicated he would have handled the switch as the men had (ROA v6-3485) whereas Laughlin, the investigating official, believed the men were "equally responsible" but concluded that they simply did not know "how to properly inspect [a dual-control] switch." ROA v7-4652, 4662(Laughlin Dep.) . Nevertheless, Thornell fired Cargo, the African-American conductor, while merely suspending Claiborne, the white engineer. Consistent with McDonald, this discrepancy raises an inference of discrimination that would justify shifting the burden of production to KCS, through Thornell, to explain the disparate treatment. In finding no prima facie case, the district court cited to a sentence in the NRAB decision blaming Cargo more than Claiborne for the accident on the ground that Claiborne detrimentally relied on Cargo's assessment of the switch. Claiborne, however, never indicated that he would have done anything different than what Cargo did — on the contrary, Claiborne's post-incident report states: "both Clarence and I said the switch was lined for our movement." ROA v6-3439- 3440(Hearing). Nor are we aware of evidence that anyone even considered the so- called reliance issue before the NRAB appeal. And counterbalancing Cargo's actions is the fact that Claiborne, as engineer, never sought permission from the tower operator for the crew to manually operate the switch. In any event, once the burden of production shifts to KCS, the company is free to proffer evidence that Thornell's decision was based on Claiborne's supposed detrimental reliance. In light of all the circumstances, a jury could find that this is not enough to render the two men dissimilar for purposes of a prima facie case under the second — same incident — test. In rejecting the Commission's claim regarding Cargo, the district court pointed to his disciplinary history. ROA v12-8097. Claiborne's history is not in the record; while KCS asserted that his "only prior discipline was a [May 2003] reprimand for missing a call," it cited no record support for that assertion. See ROA v4-2368 (MSJ Mem.). In any event, as noted above, the employer may proffer evidence that comparative disciplinary history was the reason for disparate discipline at stage two of the McDonnell Douglas proof scheme. It is not part of the prima facie case under this test. The district court also noted that Brame, as well as Alexander, "evaluated Cargo's prior disciplinary history" in rejecting his administrative appeal. ROA v12-8097. As noted above, even if true, this would not defeat the prima facie case under the second test. Furthermore, as the Commission argued in moving to exclude Brame's letters — those relating to Cargo as well as Turner and Frank, they are inadmissible hearsay. See ROA v11-7003(motion). The district court therefore erred in relying on their contents. In rejecting the Commission's argument, the district court stated that the letters are admissible as business records. ROA v12-8089. On the contrary, under Federal Rule of Evidence 803(6), letters such as those issued over Brame's name are not admissible as an exception to the hearsay rule if the "source of information or the method or circumstances of preparation indicate lack of trustworthiness." Here, the letters attributed to Brame clearly lack any such indicia of trustworthiness for three reasons. First, although Alexander, for example, testified in her deposition about the information in the letters issued over her name, KCS did not submit even an affidavit from Brame describing or otherwise attesting to her alleged participation in the administrative appeal process for Cargo, Turner, or Frank. Apart from the letters themselves, there is no evidence from her of what she considered, if anything, or why she denied the various appeals, if she even played a role at all. Second, as noted above, although the district court asserted, for example, that Brame "evaluated Cargo's prior disciplinary history" in denying his appeal, Alexander contradicted that assertion. ROA v7-4074-4075(Alexander Dep.). She testified that, whereas she would pull an employee's disciplinary history when an appeal passed on to her from Brame, Brame looked "strictly" at the "labor relations file," which did not contain the employee's disciplinary record. ROA v7- 4075 & 4049 (describing file). Third, although the letters bear Brame's name (Turner's and Cargo's are unsigned (ROA v4-2412, 2504)), there is overwhelming evidence that even a manager's signature on a KCS document may be meaningless. All of the disciplinary letters bear the signature of the investigating officials but those officials testified that they did not actually sign the letters — indeed, they might not even see them — and they had nothing to do with assessing discipline. ROA v8-4756(Lobello, regarding Turner), 4732-4733(Lobello, regarding Frank); ROA v7-4179-80(Bonds, regarding Thomas); ROA v7-4647-4648(Laughlin, regarding Cargo). Rather, their signatures were stamped on. See, e.g., ROA v8-4732-4733 (Lobello Dep.). Without contrary evidence, a jury could find that Brame's name and/or signature on the letters is no different. The district court stated that, even if the letters were hearsay, they were admissible because they were not being cited for the truth of the matter. "Rather," the court opined, they "were admissible to demonstrate the multiple levels of review afforded each Plaintiff[sic] and the information available to the decision- makers[sic] at the times the adverse employment decisions were made." ROA v12-8089. That is simply wrong. Initially, we note that Brame was not the decisionmaker; Thornell was. The letters shed no light on what information was available to him when making the adverse employment decisions. Furthermore, by citing the letters as evidence of "the information available" to the drafter of the letter (whoever that was), the court was crediting their contents. That is hearsay. Indeed, the court elsewhere quoted from the letters and treated them as true. See, e.g., ROA v12-8077 (Brame "found the ‘discipline issued [to Turner] was fully warranted and clearly supported by the facts'"); 8079 (Brame "found" Frank's "discipline was justified and denied his appeal"); 8082 (Brame "reviewed the transcript from [Cargo's] hearing and determined his dismissal was justified"). At most, the letters merely support the notion that someone issued letters to the respective employees over Brame's name, denying their appeals. The court's decision finding the letters admissible for any other purpose should be reversed. B. The district court erred in holding that defendant met its burden of producing evidence of the alleged "true" reason for the challenged employment actions. The district court compounded its mistaken approach to the McDonnell Douglas framework by holding that defendant satisfied its burden of producing evidence of a nondiscriminatory reason for the disparate discipline of Turner, Thomas, Frank, and Cargo. On the contrary, whereas there is sufficient evidence to support a finding of a prima facie case for all four individuals, KCS failed to carry its burden of production. As noted above, at stage two of the McDonnell Douglas proof scheme, once plaintiffs carry their burden of establishing a prima facie case, the burden shifts to the employer to produce "admissible evidence" that it took the challenged employment action for a "legitimate nondiscriminatory reason." See Burdine, 450 U.S. at 254-55; see also id. at 255 n.9 (noting that reason must be supported by record evidence; answer to the complaint or counsel's argument does not suffice). As the Supreme Court explained, the rationale for this shifting burden is to narrow the inquiry and focus the plaintiff's evidence of pretext. The Court stated: "when the employer has met its burden of production, ‘the factual inquiry proceeds to a new level of specificity.'" Hicks, 509 U.S at 516 (quoting Burdine, 450 U.S. at 255). The Court continued: "This refers ‘to the fact that the inquiry now turns from the few generalized factors that establish a prima facie case to the specific proofs and rebuttals of discriminatory motivation the parties have introduced.' ‘[P]lacing this burden of production on the defendant thus serves . . . to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext.'" Id. (quoting Burdine, 450 U.S. at 255-56). See also Patrick, 394 F.3d at 317 (employer must articulate reason "with sufficient clarity to afford [plaintiff] a realistic opportunity to show that [it] is pretextual"). Significantly, the evidence must also be sufficient to support a finding that the proffered reason actually motivated the decisionmaker. An employer's legitimate reason for the action "will not suffice ‘if that reason did not motivate it at the time of the decision.'" McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 359-60 (1995) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 252 (1989) (plurality opinion)); Patrick, 394 F.3d at 319-34 & nn.26-34 (reason must have actually motivated decisionmaker). This is because "‘proving that the same decision would have been justified . . . is not the same as proving that the same decision would have been made.'" McKennon, 513 U.S. at 359-60 (quoting Price Waterhouse, 490 U.S. at 260-61 (White, J., concurring in judgment)). Here, KCS has not carried its burden of production with respect to Turner, Thomas, Frank, and Cargo. Although KCS initially indicated that the challenged employment decisions were made by the respective investigating officials, those individuals denied doing so in their depositions, so the company was eventually forced to concede over four years after the last decision was made that Thornell was in fact the likely decisionmaker. By that time, Thornell had "no specific recollection" about the particular decisions at issue here — either why he decided what he did or what he considered in reaching each decision. Instead, he merely averred that he would typically review the hearing transcript and the subject's disciplinary history, and he might consult with the investigating official or Director of Labor Relations. ROA v10-6625(Thornell Decl. ¶¶6-7). But that is not enough because he admittedly does not know what he actually did regarding these four individuals. Nor did he provide any contemporaneous records. KCS argued below that the disciplinary letters — which Thornell may or may not have drafted — are contemporaneous. ROA v10-6783(Reply). They do not, however, explain why Thornell found Turner and not Schmitt responsible for the October 2002 derail, for example — and Thornell apparently cannot supply that missing explanation. Accordingly, KCS has not carried its burden of production. Assuming that the evidence is sufficient to support a prima facie case under any of the three tests, therefore, the prima facie case stands unrebutted and it is, at a minimum, a jury question whether the decisions were based on discrimination. See Patrick, 394 F.3d at 316. KCS argued that the Brame and Alexander letters "set forth the grounds on which the charging parties were disciplined." ROA v10-6591(PSJ Opp. at 23) (also true for arbitral boards); accord ROA v10-6765(Reply). As noted above, Brame's letters are hearsay and inadmissible to prove anything of any substance. In any event, at best, those letters would merely supply Alexander's (and, perhaps, Brame's) reasons for denying the various appeals. They offer no insight into Thornell's reasoning in choosing to impose the discipline. KCS stressed that Thornell "remembers" that "none of his decisions were made with discriminatory intent." ROA v10-5691(PSJ Opp.). Whether that is true for the challenged decisions in this case, however, is a credibility issue for the jury. Nor is it unfair to hold KCS responsible for failing to carry its burden of production even assuming Thornell's memory lapses are due to age, illness, and/or the passage of time. To the contrary, any such problems are of KCS's own making. Had the company promptly identified Thornell as the decisionmaker, instead of waiting until deposition testimony disproved its initial position that discipline was assessed by the various investigating officials, Thornell's testimony could have been memorialized within a short time after he made the decisions, instead of in 2008. Furthermore, the facts of this case underscore the logic and importance of the Supreme Court's requirement that a defendant proffer evidence that its explanation is the true reason for the challenged decision. Here, Thornell has not explained his reasons, and KCS's explanations for the disparities have evolved. The Commission therefore never had a "full and fair opportunity" to rebut the purported true reason for the decisions. By way of illustration, we note that defendant has never offered any explanation for Thornell's decision to place all the blame for the shoving accident on Turner, completely absolving Schmitt of any responsibility for the derail. Instead, the company has addressed only Turner's discharge, and that explanation has also changed. Initially, KCS stated that he "was on a ‘last chance' status by directive of the [PLB] and therefore was subject to automatic termination." ROA v5-3146(¶I-D-1b). The plain terms of the PLB's order make clear, however, that Turner was subject to termination only if he either tested positive to "the presence of any amount of alcohol or prohibited drug" or refused to submit to a random drug test, neither of which occurred after the derailment. ROA v4-2426(PLB order). Accordingly, the company, accusing EEOC of "misrepresenting the context of documents," abandoned the PLB order and explained that the discharge was based on Turner's entire "disciplinary history" (four infractions, including one from 1974). ROA v10-6774(Reply). It was "[b]ecause Turner's disciplinary history reflected a recent prior dismissal" (the 1999 discharge), the company asserted, that he "was considered to have a ‘last-chance' status." Id. (adding that dismissal "demonstrates a very poor disciplinary history"). We note that Turner's disciplinary letter, like those of Thomas, Frank, and Cargo, makes no mention of the employee's disciplinary history. KCS also asserted, initially, that Schmitt had no comparable drug or alcohol history. ROA v4-2363-2364(MSJ Memo.). That changed, however, when the company later conceded that he in fact had been fired for testing positive for illegal drugs following an accident in 1988 and had returned to work only after signing a waiver. ROA v4-2649-2660. Furthermore, Schmitt, like Turner, had a 1999 discharge (ROA v3-1561), which, under KCS's reasoning, should have placed him in a "last-chance" status — particularly because, unlike Turner, he had another serious infraction earlier that fall. See ROA v3-1560. Schmitt, however, was merely suspended following the 2002 sideswipe, and was entirely absolved for the derail with Turner. Similarly, KCS initially explained that Thomas was punished more severely than Hall because Hall was merely an engineer trainee, and Thomas was not offered reinstatement because he had more than four offenses in a three-year rolling period. ROA v5-6584(¶7). Evidence conclusively demonstrated that one of those reasons was false — Hall was not a trainee; indeed, it would be illegal for a trainee to be driving the train by himself. See ROA v9-5800(III-Wax Dep.). Thereafter, KCS, ignoring the three-year rolling period, focused on the alleged disparity in their disciplinary histories, noting that Thomas had eight prior infractions dating back to 1993, whereas Hall had only four, all "relatively minor." However, Hall was not hired until 2000. Comparing their records from 2000 on, they are not materially different: Thomas had five infractions, Hall had four. In addition, three of the four were more than "minor": a derail, a sideswipe, and entering a restricted area where workers are performing tasks such as track repair. See ROA v3-1550, 1551, 1552. The company also argued that, by keying on the "trainee" language, EEOC "falsely represent[ed] that KCSR claimed the difference in the discipline ultimately assessed to these two men was due to Hall's alleged status as an engineer trainee." ROA v10-6584(PSJ Opp.). The reference, the company protested, was merely a mistake of counsel. Id.; accord ROA v10-6773(Reply). A jury, however, could attribute the "false representations" to KCS rather than the Commission. The district court did not directly address the argument that, because Thornell could not explain his reasons for the decisions, KCS could not carry its burden of production. Rather, the court concluded that KCS did adequately articulate its reasons. The court based this conclusion on faulty, inconsistent premises. Initially, the court credited factual assertions proven to be false. In the factual section of its opinion, for example, the court attributed the disciplinary decisions to the investigating officials. See, e.g., ROA v12-8077(Lobello "determined" that Turner violated numerous rules). Then, in discussing liability, the court blended all of the explanations and all of the individuals KCS argued were involved in the decisionmaking. According to the court, "KCS's reasons for the challenged disciplinary actions (work rule violations) have been stated in detail above": in "each instance the Plaintiff [sic] committed an infraction of KCS policies;" there was an "independent investigative hearing"; J.R. Thornell "evaluated the circumstances of the work rule violations and assessed discipline"; then those decisions were reviewed by Brame and Alexander "who determined each Plaintiff[sic] was responsible for the rule violations and affirmed the disciplinary decisions of Thornell." ROA v12-8104. That is incorrect. The issue in a discrimination case is who made the decision and why. See, e.g., Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001) (party "must first identify who made the decision that resulted in [the] termination"). Here, those decisions were made by Thornell, and it is his reasons that matter. Moreover, there is evidence Thornell did not rely on the investigating officials since the decisions he reached conflicted with what they testified they would have recommended, if they recommended anything. Bonds testified that he had no input and found the disparate discipline "odd." ROA v7-4186(Bonds Dep.). Lobello would have held Schmitt and Turner both responsible for the derailment. ROA v8-4752(Lobello Dep.). Regarding Claiborne and Cargo, Laughlin thought that they were "equally responsible" (ROA v7-4662(Laughlin Dep.)), and Wax indicated at the hearing that he would have done what they did. ROA v6-3483-3485(Hearing); ROA v9-5768(III-Wax Dep.). As for Alexander and Brame (to the extent Brame was involved), at best, they merely reviewed Thornell's decision once it was appealed; at worst, they rubber-stamped it. Even had they chosen to reverse it — something Alexander conceded rarely happened, the company would still be liable because the discipline Thornell imposed became effective when his decisions were issued without awaiting the results of any internal appeals. In responding to EEOC's argument, KCS suggested that a variation of the cat's paw theory would apply. See ROA v4-2372-2373 (MSJ). There are two requirements for that theory: (1) a coworker or other individual exhibited discriminatory animus, and (2) that same individual "possessed leverage, or exerted influence," over the "titular" but otherwise unbiased decisionmaker. Roberson v. Alltel Info. Sys., 373 F.3d 647, 654 (5th Cir. 2004); Mato, 267 F.3d at 450 (decisionmaker merely "rubber-stamps" subordinate's recommendation). If both requirements are met, the employer is liable for discrimination. If the decisionmaker conducted an independent investigation and independently reached a decision, however, there is no liability unless the decisionmaker himself is biased. Based on this theory, KCS argued that, even if Thornell were biased, the "independent internal investigative hearing and three levels of independent review, including review by an outside neutral arbiter, break the causal link between any discriminatory . . . animus . . . and the alleged adverse employment actions which form the basis of their claims." ROA v4-2372-2373 (citing Mato, 267 F.3d at 450). Here, however, the cat's paw theory is inapplicable because Thornell was the actual decisionmaker; he did not merely make recommendations to Brame, Alexander, and the appellate boards. Regardless of how rigorous their respective review processes were (and that is, at best, disputed), those latter entities simply reviewed a decision already reached by Thornell. Their explanations for what they considered and why they agreed with his decisions cannot fill the void left by his professed inability to state what he considered and why he reached the decisions he did. Finally, we note that the district court erred in granting summary judgment on the ground that, in the court's view, the Commission failed to proffer sufficient evidence of pretext. KCS did not produce evidence of the purported true reason for the adverse decisions, so, assuming that the Commission satisfied its prima facie burden, the Commission's responsive duty never arose. Because the district court improperly granted summary judgment, we urge the Court to reverse. The evidence is more than adequate to meet the Commission's burden of showing a prima facie case. Because defendant did not and, apparently, cannot proffer evidence of its alleged true reasons for the adverse employment actions, the case should go the jury for resolution. 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 VINCENT J. BLACKWOOD Acting Associate General Counsel ___/bls/__________________________ 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 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 13,974 words, from the Statement of Jurisdiction through the Conclusion, 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. _______/bls/___________________ Attorney for Equal Employment Opportunity Commission Dated: February 2, 2010_____________ STATEMENT OF RELATED CASES The Commission is not aware of any related cases in the Court of Appeals. Clarence Cargo and Jesse Frank are plaintiffs in a case pending in the district court against this defendant. See Cargo, et al. v. Kansas City Southern Ry., No.05-2010 (W.D. La.). __/bls/_______________________ Barbara L. Sloan CERTIFICATE OF SERVICE I certify that two paper copies and one electronic PDF copy (CD) of the foregoing brief were sent on January 27, 2010, by first-class mail, postage prepaid, to the following counsel of record: Nelson W. Cameron 675 Jordan Street Shreveport, LA 71101 Donald F. DeBoisblanc DeBOISBLANC & DeBOISBLANC 410 South Rampart Street New Orleans, LA 70112 Rachel W. Wisdom STONE PIGMAN WALTHER WITTMANN LLC 546 Carondelet Street New Orleans, LA 70130 Courtesy copies were also emailed to counsel on January 27, 2010. __/bls/_________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I certify that two paper copies and one electronic PDF copy (CD) of the foregoing Corrected Brief of the EEOC as Appellant were sent on February 2, 2010, by express mail, postage prepaid, to the following counsel of record: Donald F. DeBoisblanc DeBOISBLANC & DeBOISBLANC 410 South Rampart Street New Orleans, LA 70112 Rachel W. Wisdom STONE PIGMAN WALTHER WITTMANN LLC 546 Carondelet Street New Orleans, LA 70130 Courtesy copies were also emailed to counsel on February 2, 2010. Corrected briefs were not served on Nelson Cameron, attorney for Roberta Brown, because Mr. Cameron did not file a brief as Appellant in the case. __/bls/_________________________ Barbara L. Sloan *********************************************************************** <> <1> Thomas Turner’s suit, No.03-2742, which was consolidated with EEOC’s enforcement action, also alleges claims under 42 U.S.C. §1981 and state law. While the district court’s opinion addresses only Title VII, the final judgment states that “all claims” against defendant are “dismissed.” See EEOC-R.47; Turner-R.303. <2> Clarence Cargo and Jesse Frank also moved to intervene, but their motions were denied. EEOC-R.28, 36. A fifth individual, Roberta Brown, also intervened. EEOC-R.15. EEOC is not pursuing an appeal with respect to her. <3> KCS proffered an unsigned copy of a letter denying Turner’s appeal with Brame’s name on it. ROA v4-2412. She was not deposed, and KCS did not submit an affidavit from her addressing the appeal. The letter states that Brame reviewed the hearing transcript and found the discipline “fully warranted.” <4> Thornell stated that he sometimes delegated decision-making to the Assistant Superintendent, who was A.J. Sonnier. ROA v10-6625 (Thornell Decl.¶5). Cargo testified that Sonnier made racial remarks, such as “You people just always mess up” and “Boy, you’re playing with your job.” ROA v7-4303-04 (Cargo Dep.). KCS did not identify Sonnier as a decisionmaker, and he is now deceased. <5> A coworker warned Cargo that Sonnier was “out to get” him after hearing Sonnier say, “I’m going to fire [Cargo] before he reaches retirement.” ROA v7-4306 (Cargo Dep.). As noted above, Sonnier also told Cargo: “Boy, you’re playing with your job,” and “You people just always mess up.” ROA v7-4303-4304. <6> Brame’s letter, which is unsigned, references Cargo’s disciplinary history. Alexander indicated that while she checked disciplinary records in reviewing an administrative appeal, Brame did not. ROA v7-4074-4075 (Alexander Dep.). <7> This is not an exclusive list. The prima facie case is intended to be flexible. Burdine, 450 U.S. at 253 n.6 (“standard is not inflexible”); Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (requirements may vary depending on context and were “never intended to be rigid, mechanized, or ritualistic.”). The original McDonnell Douglas was a misconduct rehiring case and the final element there was established with evidence that the job remained open and the employer continued to seek applicants from persons of complainant’s qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).