MAURICE HICKS, Jr., Magistrate Judge.
Before the Court is a Motion for Summary Judgment on Plaintiff Michelle Holmes' various employment discrimination claims (Record Document 836) filed by Defendant Kansas City Southern Railway Company ("KCSR"). The motion conveys reasons for the Defendant seeking dismissal of all claims raised by Holmes. Holmes, in opposition to Defendant's Motion for Summary Judgment, replies "Plaintiff has established a prima facie case of discrimination and retaliation under the
Michelle Holmes is an African American female. Record Document 836-1 at 1. Holmes began to work at KCS as an Extra Board Clerk in Customer Service on February 18, 1998. In March 1998, Holmes assumed a more favorable position, as a Crew Dispatcher. (SOF, ¶ 4).
Crew Dispatchers serve the important role of communicating with crews to ensure that trains are properly and fully manned and "mark off" employees, those that indicate that they cannot appear as scheduled. The Crew Dispatchers then locate other crew members to fill those positions. (SOF, ¶ 5). Following instructions from supervising employees is essential to this role. To ensure that the responsibilities of the employees are known, KCSR has rules and policies in place. Specifically, employees are required to follow instructions from their supervisors and avoid conflicts of interest with KCSR and its interests. (SOF, ¶ 19 & 21). Holmes received copies of the rules and policies and signed written acknowledgments confirming her receipt of these documents. (SOF, ¶ 25). KCSR's discipline policy ensures that employees understand the consequences of failing to abide by the rules, as well as the instructions of a supervisor. (SOF, ¶ 22-24).
In the instant matter, Holmes' workplace history indicates repeated rules violations accompanied by a progressive disciplinary record. On September 26, 2003, Holmes admitted and acknowledged a rule violation, for which she received a formal reprimand. (SOF, ¶ 27-29). On January 28, 2004, a second violation occurred when Holmes failed to report to duty. Holmes signed an acknowledgment of this violation and received a fifteen-day (15) suspension. (SOF, ¶ 32-34). On August 23, 2004, Holmes was notified by letter of a formal investigation of her responsibility regarding her failure to perform her duties when she "marked off" a conductor under false pretenses and failed to comply with instructions from supervisors in direct violation of KCSR's rules. (SOF, ¶ 35). A formal investigation into Holmes' failure to perform her duties and comply with instructions was held on September 16, 2004 with the Union (Transportation Communications International Union — "TCU") representing Holmes. During the investigation, Holmes testified and TCU presented evidence and examined witnesses. (SOF, ¶ 36). On September 24, 2004, Holmes was notified that she was found to have violated General Responsibilities 1.4, 1.6 and 1.13, for which she was issued a sixty-day (60) suspension. (SOF, ¶ 40).
In March 2006, Holmes again failed to follow KCSR's rules and regulations when she posted a flyer on Company bulletin boards to solicit for a law firm specializing in suits against the railroad. (SOF, ¶ 44). After another investigation by the railroad, during which time Holmes was represented by the Union, she admitted that she posted the law firm flyers on a KCSR bulletin board. (Exhibit 3, Rec. Doc. 836-6)
Holmes appealed her dismissal to a Special Board of Adjustment ("SBA"), pursuant to the applicable Collective Bargaining Agreement ("CBA"). (SOF, ¶45). The SBA, which consisted of three members — a TCU member, a Company member, and a neutral chair — issued its determination after a review of all the evidence, including the entire transcript of testimony from the investigation. (SOF, ¶ 45). The SBA found that Holmes was in noncompliance with KCSR's General Code of Operating Rules, and was "acting as a `finder...for the benefit of a third party in transactions involving the Corporation or its interests.'" (SOF, ¶ 47).
The SBA also found that Holmes "was at fault in utilizing a bulletin board set aside by the Company for official Union business to promote an outside firm...The bulletin board was not designated by [KCSR] as a site to be utilized by employees for any notices they wished to post." (SOF, ¶ 48). The SBA, though agreeing that rules and policies of the Company had been violated by Holmes, nevertheless reinstated her, without back pay, stating that "the time that [Holmes] has been withheld from service should be sufficient to impress upon her the seriousness of her actions." (SOF, ¶ 49). Holmes was off work from April 2006 until March 2007 prior to her reinstatement by the SBA. (SOF, ¶ 50).
Holmes' employment with KCSR ultimately ended on September 14, 2008 following a dispute regarding whether Holmes provided false information on her original application for employment with KCSR. A formal investigation was held, and ultimately, the SBA upheld Holmes' dismissal, stating as follows:
(SOF, ¶ 68; Ex. 22, SBA Decision, 2nd Termination, p. 5).
Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil Procedure when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Employers are prohibited from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). A claim for discrimination may be proven with direct or circumstantial evidence.
It is clear, based on the facts presented in the instant matter, that the Plaintiff meets the qualifications for the first three elements to establish a prima facie case of discrimination. Accordingly, the Court's decision will rest upon its determination of whether the fourth element was violated. The Plaintiff bears the burden of proving that, among other things, she and her alleged comparators:
In her Third Supplemental Complaint, Holmes identifies two KCSR employees whom she believes were treated more favorably than herself: Sharon Scott ("Scott") and James Smith ("Smith"). However, neither of these individuals were similarly situated to Holmes. Smith held a variety of positions at KCSR, including stints in the following positions: Train Dispatcher, Assistant Trainmaster, Manager of Network Services and an Enterprise Workforce Management. (SOF, ¶ 123-126). Prior to working for KCSR, Smith served as a Train Dispatcher for Midsouth Rail. (SOF, ¶ 122). None of these positions were the same as the position held by Holmes, who served as an Extra Board Clerk, Crew Dispatcher, and later as a Clerk in the diesel shop. Therefore, in accordance with the Fifth Circuit precedent, Smith cannot be similarly situated to Holmes.
Scott is the other individual that Holmes claims is a similarly situated employee. Scott, like Holmes, served as a Crew Dispatcher while she was employed at KCSR. However, Scott is distinguishable from Holmes. Scott was on a leave of absence in June 2004 and dismissed on September 23, 2004
Holmes' Fourth Supplemental Complaint makes the argument that "other employees" violated similar rules and were not discharged for their conduct. Even with the sworn affidavit of a fellow employee stating that other employees violated the rule but were not fired, the requirement as established in
Because Holmes is unable to demonstrate that her duties, responsibilities or position or her misconduct and violations were "nearly identical" to her alleged comparators, she cannot demonstrate this element of proof to establish a prima facie case of discrimination by KCSR. Accordingly, the Court finds that Summary Judgment on this claim of discrimination is
Like her discrimination claim, Holmes is unable to meet the burden required under the
Holmes asserted in her Fourth Supplemental Compliant that she was dismissed on April 14, 2006, in retaliation for filing charges of discrimination and a lawsuit against KCSR. (SOF, ¶ 103). This allegation is a "protected activity," as established in
The Fifth Circuit has established that the "but-for" standard requires much more in the way of proof.
In her opposition of summary judgment, Holmes fails to address any hostile work environment and failure to promote claims and therefore fails to meet her summary judgment burden.
In her opposition of summary judgment, Holmes fails to address these claims at all and therefore, she fails to meet her summary judgment burden.
Also pending before the Court is a Motion to Strikes Certain Exhibits (2, 3, 4 and 7) Submitted by Group 16 Plaintiff, Michelle Holmes filed by KCSR. Record Document 847. The Motion is
Based on the foregoing analysis, the Court finds that Plaintiff Michelle Holmes abandoned her hostile work environment and state law claims. Additionally, Holmes has failed to provide sufficient competent summary judgment evidence to raise a genuine dispute of material fact that Holmes endured discrimination and/or retaliation under the framework provided by the United States Supreme Court in
Accordingly,
A Judgment consistent with the terms of the instant Memorandum Ruling shall issue herewith.