Lee v. Kansas City Southern Ry. Co.

• Decision Date: 30 June 2009
• Docket Number: No. 08-30444.,08-30444.
• Citation: 574 F.3d 253
• Parties: Marcus LEE, Plaintiff-Appellant, v. KANSAS CITY SOUTHERN RAILWAY CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

574 F.3d 253

Marcus LEE, Plaintiff-Appellant, v. KANSAS CITY SOUTHERN RAILWAY CO., Defendant-Appellee.

No. 08-30444.

United States Court of Appeals, Fifth Circuit.

June 30, 2009.

Gregory George Paul (argued), Equality at Work, P.L.L.C., Sewickley, PA, for Lee.

Bobby Stephen Gilliam (argued), Kenneth David McLean, Wilkinson, Carmody & Gilliam, Shreveport, LA, Casey MacIssac Bloxom, Blanchard, Walker, O'Quin & Roberts, Shreveport, LA, for Kansas City Southern Ry. Co.

Appeal from the United States District Court for the Western District of Louisiana.

Before JONES, Chief Judge, and WIENER and BENAVIDES, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant Marcus Lee, who is African-American, was an engineer for Defendant-Appellee Kansas City Southern Railway Co. ("KCS") from 1993 until his employment was terminated in 2004 after he failed to observe and obey a stop signal, thereby failing to stop the train he was operating in a Shreveport, Louisiana railyard. Lee sued KCS, alleging (1) race-based employment discrimination in violation of Title VII of the Civil Rights Act and 42 U.S.C. § 1981, and (2) retaliatory discharge for (a) his prior filing of complaints with the Equal Employment Opportunity Commission ("EEOC") or (b) his numerous absences under the Family and Medical Leave Act ("FMLA"), or both.

In support of his claim of racially motivated employment discrimination, Lee identified several other KCS employees who he contends were similarly situated to him but were treated differently because they are white. The district court determined that these comparators were not similarly situated to Lee and granted summary judgment in favor of KCS, holding that Lee failed to establish a prima facie case of employment discrimination. Convinced that Lee identified at least one appropriate comparator, by virtue of which he established a prima facie case, we reverse the district court's judgment on Lee's Title VII claim, but affirm the remainder of the court's summary judgment in favor of KCS, dismissing the rest of Lee's claims.

I. FACTS AND PROCEEDINGS

A. Factual Background

Lee was an engineer for KCS for nine years until he was fired in September 2004¹ following an incident that occurred that month while Lee was operating a train in a railyard in Shreveport near the railroad bridge over the Red River. He was attempting to move his train forward on one track and then back the train onto a second track. After Lee pulled the train forward, the conductor with whom Lee was working indicated that he should proceed to reverse the train as planned. Neither Lee nor the conductor could see a red "block signal" which was indicating that Lee's train must stop because there were trains parked on the second track. After receiving the conductor's instruction but before backing up the train, Lee should have radioed his dispatcher to receive the all-clear to reverse.² Lee failed to do so and ran through the signal.

Lee's conduct compounded two errors (the "Shreveport violations"): (1) failing to stop at the red block signal, and (2) failing to radio his dispatcher for permission to enter on to the second track. Although no damage or injury resulted from Lee's errors, KCS considers them to be among the most serious type of moving violations for which termination may be appropriate. Following the incident and the completion of an investigation, Lee's supervisor, Mark Redd, followed KCS's appealable disciplinary policy by, inter alia, reviewing Lee's record of violations for the preceding three years. Redd determined that not only were the Shreveport violations grave, but that they were even more troubling because they occurred just six months after another serious offense for which Lee had been given a 30-day suspension. In that instance, Lee had failed to slow to 10 miles per hour as required when passing a "yellow board" signal. These two serious violations in rapid succession, together with previous incidents of misconduct, including another moving violation only eighteen months earlier, persuaded Redd to fire Lee. Kathy Alexander, the railroad's director of labor relations, had final authority to grant leniency following Redd's decision to fire Lee, but she concluded that none was merited.

Lee exercised his right under his union's collective bargaining agreement to appeal the decision. This procedure culminated in a hearing before the Public Law Board (the "PLB"), which found Lee's firing appropriate.³ Lee later sought to have the Federal Railroad Administration ("FRA") reinstate his engineer's license so that he could work elsewhere. The FRA conducted its own investigation of the Shreveport violations, determining that under the circumstances Lee could not have seen the block signal and had to rely on his conductor who also could not see the block signal, a fact of which Lee was unaware at the time of the incident. The FRA concluded that these circumstances mitigated Lee's error and reinstated his license.

Lee filed an EEOC complaint following the termination of his employment by KCS, but it was dismissed by the EEOC. He had previously filed an EEOC complaint in 2003 in connection with an unrelated incident, during which another KCS employee had pulled a knife on him, an attack that Lee believed was racially motivated. The resolution of that prior complaint was the subject of some debate in the district court and is unclear to us from the record. It is apparent, however, that as a general rule, KCS managers were made aware when employees they supervise file EEOC claims.

Additionally, over the course of his employment with KCS, Lee regularly requested and received time off under the FMLA. Lee's wife suffered from migraine headaches and his child had chronic asthma, requiring him to be at home intermittently to care for them, including for 57 days in 2003. KCS kept records of employees' FMLA use and required that employees fully deplete their vacation and sick days before seeking leave pursuant to the FMLA. Alexander noted in her records that many of Lee's FMLA requests were for days immediately preceding or following weekends or holidays.

B. Proceedings

Lee filed this suit in November 2005, contending that KCS would have offered him leniency, viz., he would not have been fired or, if fired, he would have been reinstated, but for, e.g., his race, his use of FMLA, or the two complaints that he filed with the EEOC. Through discovery, Lee sought to identify KCS's treatment of other engineers with violations and safety records similar to his own as proof that he was treated discriminatorily because of his race. Lee urged that the evidence of KCS's disparate treatment of more than a half-dozen comparators supports his claim.

Following KCS's motion for summary judgment, the district court focused on two of Lee's proffered comparators. It concluded that neither was similarly situated to Lee and therefore offered no support for his claim of disparate treatment based on race. The court ruled that Lee had failed to make out a prima facie case of racial discrimination in violation of Title VII and that Lee had adduced no evidence to support the existence of a causal connection between his firing and either his use of the FMLA or his filing of EEOC complaints. Following the district court's grant of KCS's motion for summary judgment, Lee timely filed a notice of appeal.

II. STANDARD OF REVIEW

We review the grant of a motion for summary judgment de novo.⁴ A grant of summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.⁵ In particular, we here consider whether Lee raised a genuine factual issue as to his prima facie case of racially motivated employment discrimination.⁶

III. ANALYSIS

Lee advances three contentions in this appeal. He asserts principally that but for his race, he would not have been fired following the Shreveport violations.⁷ He also contends that his firing was in retaliation for his use of the FMLA, and his filing of EEOC complaints.

A. Retaliatory Discharge

Lee asserts that his EEOC claims influenced Redd's decision to fire him and that his numerous leave-takings under FMLA swayed Alexander's decision not to offer leniency.

1. EEOC Filings

There is no evidence in the record that Redd was even aware of Lee's EEOC filings. Although Redd stated in his deposition that managers generally were made aware of employees' EEOC filings, Redd testified that he did not remember having any knowledge of Lee's having filed any such complaints. Lee merely reasons that because of Redd's statement about managers' generalized knowledge of complaints and the fact that Redd had discussed Lee's potential firing with Alexander, Redd must have known about Lee's EEOC complaints and must have considered them when deciding that firing Lee was merited. Lee offers only speculative inferences to support his assertion, which is insufficient to demonstrate the existence of a genuine issue of material fact.⁸

2. Use of FMLA Leave

Lee next contends that his frequent taking of leave under the FMLA landed him on a so-called "last supper" list of employees whose frequent absences flagged them as candidates for firing or at least for reprimand. The FMLA not only requires employers to permit employees to take leave under the statutory framework, it prohibits employers from retaliating against employees for doing so.⁹

Although there is evidence in the record of the existence of such a "last supper" list, there is no evidence that Lee's name was on it. KCS did track employee leave—of all types—for payroll and employee record purposes, including to monitor its rule that employees use their vacation and sick time entirely prior to taking FMLA leave. Alexander stated that, in her capacity as KCS's liaison with the union, she recorded employee FMLA leave for those reasons, but that she gave no consideration to Lee's use of the FMLA when deciding whether to...