Opinion
Civil Action No. 99-2512-GTV
November 30, 2000
MEMORANDUM AND ORDER
Plaintiff Equal Employment Opportunity Commission brings this case against Defendant Kansas City Southern Railway Company alleging that Defendant unlawfully discriminated against one of its employees on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994). The case is before the court on Defendant's motion for summary judgment (Doc. 82). For the reasons set forth below, the motion is denied.
I. Summary Judgment Standard
Summary judgment is appropriate if the evidence presented by the parties demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A "genuine" issue of fact exists if the evidence is such that a reasonable jury could resolve the issue either way. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "material" if it is essential to the proper disposition of the claim. See id. (citing same). The court must consider the record, and all reasonable inferences therefrom, in the light most favorable to the party opposing the motion. See id.
The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. See id. at 670-71 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). If the moving party will not bear the burden of persuasion at trial, that party "may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Id. at 671 (citing Celotex, 477 U.S. at 325). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to go beyond the pleadings and set forth specific facts from which a reasonable jury could find in favor of the nonmoving party. See id.
II. Factual Background
The following facts are taken from the summary judgment record and are either uncontroverted or viewed in the light most favorable to Plaintiff's case. Immaterial facts and facts not properly supported by the record are omitted.
Michael Kerr is an African-American individual. Defendant, a railway company, hired Mr. Kerr on August 11, 1997 as a brakeman trainee. On November 1, 1997, after several weeks of classroom and on the job training, Defendant promoted Mr. Kerr to the position of conductor.
Mr. Kerr became ill with pneumonia and was unable to work from October 31, 1997 through November 25, 1997. On December 1, 1997, during a trip between Pittsburg, Kansas and Kansas City, Missouri, Mr. Kerr committed a rule violation that resulted in his termination from employment. At the time of the violation, Mr. Kerr was working as a conductor with Engineer Phil Knight. According to Defendant's General Code of Operating Rules, both the engineer and the conductor are responsible for the safety and protection of their train and for the observance of all rules. For this reason, the engineer and the conductor must remain alert for traffic signals. As soon as a signal becomes visible or audible, the engineer and the conductor are to communicate clearly to each other the name or aspect of the signal affecting the train.
As their train neared its destination in Kansas City — the Knoche railroad yard — both Mr. Kerr and Engineer Knight called out the approaching red signal. In accordance with the signal, Engineer Knight brought the train to a complete stop in a designated siding. The train was given the red signal and directed into the siding because the Knoche yard was temporarily full. The yardmaster informed Mr. Kerr and Engineer Knight that the train would remain in the siding for approximately thirty to forty-five minutes. Just minutes later, however, the yardmaster informed them that the yard was clear and that the train could be brought into the yard.
Despite the fact that the red signal had not been lifted, Engineer Knight released the brake and began to move the train forward. Engineer Knight immediately realized, however, that the track switches were not aligned for movement, and thus he applied the emergency brake. Even though Engineer Knight reacted quickly in applying the emergency brake, a portion of the train moved through the red signal. Mr. Kerr was putting away some reports at the time Engineer Knight released the brake and the train began to move. Mr. Kerr did not realize what was happening until after Engineer Knight had already applied the emergency brake.
Superintendent Terry Reardon discussed the violation of the red signal with Engineer Knight and Mr. Kerr immediately following the incident. Superintendent
Reardon claims that Mr. Kerr failed at that time to offer an adequate explanation as to why he failed to take action when Engineer Knight began to move the train in violation of the signal.
Superintendent Reardon terminated Mr. Kerr for his involvement with the incident. Superintendent Reardon afforded Engineer Knight the opportunity to have a formal investigation; Engineer Knight declined the formal investigation. Superintendent Reardon suspended Engineer Knight from service for thirty days for his involvement with the incident.
III. Discussion
Plaintiff alleges that Defendant discriminated against Michael Kerr on the basis of race when it terminated his employment. Title VII prohibits an employer from terminating an individual on the basis of race. See 42 U.S.C. § 2000e-2(a)(1). Where, as here, there is no direct evidence of discrimination, a claim for discrimination is evaluated under the McDonnell Douglas burden-shifting analysis. See Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1208 (10th Cir. 1999). Accordingly, Plaintiff initially bears the burden of establishing a prima facie case of discrimination. See id. (citing Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1533 (10th Cir. 1995)). If Plaintiff is successful in doing so, the burden shifts to Defendant to articulate some legitimate, nondiscriminatory reason for the challenged employment action. See id. (citing same). If Defendant offers a nondiscriminatory reason, the burden shifts back to Plaintiff to prove that Defendant's proffered reason is merely pretextual, or unworthy of credence or belief. See id. (citing Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997); Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995)).
To establish a prima facie case for a disparate treatment claim based upon discharge for violation of a work rule, Plaintiff must show that (1) Mr. Kerr belongs to a protected class, (2) Mr. Kerr was qualified for his job, (3) Mr. Kerr was discharged despite his qualifications, and (4) Mr. Kerr's job was not eliminated after his discharge. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000) (citing Perry v. Woodward, 199 F.3d 1126, 1138 (10th Cir. 1999)).
The court determines that Plaintiff has sufficiently established a prima facie case. The only element that Defendant seriously disputes is whether Mr. Kerr was qualified for his position. Defendant admits that, prior to working for Defendant, Mr. Kerr worked for another railway company in various capacities, including conductor. Defendant also admits that it spent several weeks training Mr. Kerr for the position of conductor; that Mr. Kerr received on the job training from Defendant; and that Mr. Kerr passed a written exam in order to be promoted to conductor. Defendant argues that Mr. Kerr was not qualified, however, because "despite his experience and extensive training," he committed a serious rule violation when he failed to call out the red signal or take any remedial action on December 1, 1997.
In evaluating Plaintiff's prima facie case, the court will not consider the very event from which Mr. Kerr's termination allegedly arose. To do so would require Plaintiff to disprove the proffered reason given for Mr. Kerr's discharge in order to establish a prima facie case, and thus frustrate any proper McDonnell Douglas analysis. See MacDonald v. E. Wyo. Mental Health Ctr., 941 F.2d 1115, 1119 (10th Cir. 1991); Ortiz v. W. Res., Inc., No. 98-4093-DES, 2000 WL 1473142, at *4 (D.Kan. Sept. 28, 2000). Instead, "a plaintiff may make out a prima facie case of discrimination in a discharge case by credible evidence that [he] continued to possess the objective qualifications [he] held when [he] was hired, or by [his] own testimony that [his] work was satisfactory, even when disputed by [his] employer, or by evidence that [he] had held [his] position for a significant period of time." MacDonald, 941 F.2d at 1121 (internal citations omitted). Plaintiff has presented ample evidence to show that Mr. Kerr possessed the objective qualifications needed for the position of conductor, and thus that Mr. Kerr was qualified for the position of conductor. Accordingly, the court determines that Plaintiff has sufficiently established a prima facie case.
Because Plaintiff has established a prima facie case, the burden now shifts to Defendant to articulate some legitimate, nondiscriminatory reason for the challenged employment action. See Shorter, 188 F.3d at 1208 (citing Reynolds, 69 F.2d at 1533). Defendant meets this burden by contending that it terminated Mr. Kerr's employment because Mr. Kerr committed a serious rule violation on December 1, 1997, for which he offered no adequate explanation.
The burden now shifts back to Plaintiff to prove that Defendant's proffered reason is merely pretextual, or unworthy of credence or belief. See id. (citing Morgan, 108 F.3d at 1323; Randle, 69 F.3d at 451). "To avoid summary judgment, a plaintiff need not demonstrate that discriminatory reasons motivated the employer's decision"; instead "the plaintiff's burden is only to demonstrate a genuine dispute of material fact as to whether the proffered reasons [are] unworthy of belief." Morgan, 108 F.3d at 1321-22 (citing Randle, 69 F.3d at 451); see also Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2108-09 (2000). "A plaintiff typically makes a showing of pretext in one of three ways: (1) with evidence that the defendant's stated reason for the adverse employment action was false; (2) with evidence that the defendant acted contrary to a written company policy prescribing the action to be taken by the defendant under the circumstances; or (3) with evidence that the defendant acted contrary to an unwritten policy or contrary to company practice when making the adverse employment decision affecting the plaintiff." Kendrick, 220 F.3d at 1230 (internal citations omitted). "A plaintiff who wishes to show that the company acted contrary to an unwritten policy or to company practice often does so by providing evidence that he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness." Id. (citing Aramburu, 112 F.3d at 1404).
The court determines that genuine issues of material fact exist with respect to whether Defendant's proffered reason for terminating Mr. Kerr is pretextual. The evidence shows that Mr. Kerr was terminated without being afforded the opportunity to have a formal investigation. According to the terms of the labor agreement between Defendant and the United Transportation Union, all regular employees, as opposed to probationary employees, are entitled to a formal investigation prior to the assessment of discipline. Plaintiff has presented some limited evidence indicating that Mr. Kerr was a regular employee at the time of his violation.
Even if Mr. Kerr was not a regular employee, a reasonable fact-finder could conclude from the evidence that Defendant acted contrary to an unwritten policy or company practice when it made the decision to terminate Mr. Kerr. Plaintiff has presented evidence indicating that Defendant customarily provided its probationary employees with the opportunity for a formal investigation before imposing discipline for performance-related violations.
Moreover, a reasonable fact-finder could conclude from the evidence that Defendant treated Mr. Kerr differently from similarly-situated non-minority probationary employees. For example, Plaintiff has presented evidence that a non-minority probationary employee named Rodney Cheek was involved in an incident that resulted in the derailment of two cars. Defendant afforded Mr. Cheek the opportunity to have a formal investigation. Mr. Cheek waived the investigation and accepted responsibility for the incident. Defendant disciplined Mr. Cheek in the form of a reprimand from his supervisor, Joe Tatum. Several weeks later, Mr. Cheek was involved in an incident where he allowed an engineer to move a train through a track switch that was not aligned for movement. Defendant afforded Mr. Cheek the opportunity to have a formal investigation; Mr. Cheek waived the investigation and admitted responsibility. Defendant again disciplined Mr. Cheek in the form of a reprimand from Supervisor Tatum.
Similarly, Plaintiff has presented evidence that a non-minority probationary employee named Robert Hawes was involved in a side-swipe incident that resulted in damage to equipment. Defendant afforded Mr. Hawes the opportunity to participate in a formal investigation. Mr. Hawes waived the investigation and was issued a five-day suspension for his responsibility with the incident.
It appears to the court that a reasonable fact-finder could conclude that Mr. Kerr's rule violation was comparable in seriousness to the violations committed by Mr. Hawes and Mr. Cheek. Furthermore, a reasonable fact-finder could conclude that despite the comparability, Mr. Kerr was treated differently and more harshly — not only was he denied the opportunity to have a formal investigation concerning his rule violation, but he was terminated as a result of the violation.
In light of the foregoing discussion, the court determines that genuine issues of material fact preclude summary judgment.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's motion for summary judgment (Doc. 82) is denied.
IT IS SO ORDERED.