A reminder from the Fifth Circuit that, as long as we have McDonnell Douglas and Burdine, the employer in a disparate treatment race discrimination case must – in response to employee’s presentation of a prima facie case – produce admissible evidence of a legitimate, non-discriminatory reason for taking an adverse action (firing, demotion, etc.). An employer that defaults on this burden of production buys itself a trial, as the defendant discovers here (in an action brought by the employees, and EEOC as intervenor). Judge Owen dissents.
Turner v. Kansas City Southern Ry. Co., No. 09-30558 (5th Cir. Mar. 23, 2012): The plaintiffs, four African-American railway workers, and the EEOC brought claims that they were disciplined for alleged work-rule violations more harshly than white employees. The incidents were summarized as followed:
- “Thomas Turner, a train engineer, was driving a train that was ‘shoving’ a damaged engine onto a spur track when the damaged engine derailed at a low rate of speed. Turner was operating the locomotive and Thomas Schmitt, the train’s conductor, was providing Turner with instructions from the ground via radio about how much more room remained before the damaged engine reached the end of the track. Turner and Schmitt blamed each other for the accident. Turner was dismissed; Schmitt, who is white, was not disciplined.
- “Lester Thomas, a train conductor, was performing a training exercise when the train that he was operating along with Joshua Hall, the engineer who was driving the train, failed to timely stop at a ‘dark signal’ (a signal that did not show a green or red light). Thomas was dismissed; Hall, who is white, was dismissed but reinstated thirty days later.
- “Jesse Frank, a train engineer, missed a shift in order to visit his uncle in the hospital. Frank was suspended for ninety days; Frank Mouney, a white engineer who missed a shift around the same time, was suspended for five days.
- “Clarence Cargo, a train conductor, was operating a train that derailed after passing over an improperly locked switch. Cargo was dismissed; Scott Claiborne, the white engineer who was driving the train, was suspended.”
Although each of the African-American employees was eventually able to get a reduction in their discipline, the racial disparities remained. The EEOC and plaintiffs sued under Title VII, § 1981 and Louisiana civil-rights law.
The employer encountered a serious difficulty during the discovery phase of the case. While it originally named (and produced for depositions) the individuals said to have been the decision makers in each disciplinary action, when deposed these witnesses actually denied involvement in these decisions. Only four years after the decisions were made, the employer finally produced a single, individual decision maker (Mr. Thorness, General Superintendent of Transportation), but by this point the witness could not recollect the precise details of these disciplinary actions.
“KCSR later produced a declaration from Thornell stating that during the period in which these decisions were made, it was Thornell’s responsibility to make disciplinary decisions regarding KCSR engineers and conductors; that in making such decisions, it was his usual practice to review the employee’s infraction and employment history; but that he had no specific recollection of these decisions; and that he may have delegated the decisions to his assistant. The record contains no testimony from Thornell’s assistant, A.J. Sonnier, who died during the litigation in this case.”
The district court granted summary judgment in all four cases, but the Fifth Circuit reverses in two (Turner and Thomas). The panel majority holds that these two employees challenged the initial decisions to discipline (not the eventual resolution on appeal), and that in each case they were able to identify a white employee who was either jointly involved in the incident or committed a violation of equivalent severity. (According to the opinion, the EEOC failed to timely raise another, more succinct argument under the “same incident” test – McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976) – that where a white employee receives lesser discipline than a black employee for the same accident, the employee establishes a prima facie case.)
The panel majority notes that in making out the prima facie case, the incidents need not be identical, and “the similitude of employee violations may turn on the ‘comparable seriousness’ of the offenses for which discipline was meted out and not necessarily on how company codes an infraction under its rules and regulations.'” In addition, Turner and Thomas were able to establish that their disciplinary histories were comparable to their white counterparts.
The panel majority then noted that under Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the employer was required to produce admissible evidence of a valid, non-racially biased reason for the actions. But in the absence of testimony by the decision maker about the reasons for each decision, the employer came up short. The actual identity of the decision maker – Thornell or Sonnier – mattered in this analysis:
“[T]here is extensive record evidence of race-based comments by Sonnier, which, if he were the actual decision maker, would be extremely probative of intentional discrimination. The purpose of ‘[t]he McDonnell Douglas division of intermediate evidentiary burdens [is] to bring the litigants and the court expeditiously and fairly to th[e] ultimate question’ of whether ‘the defendant intentionally discriminated against the plaintiff.’ Burdine, 450 U.S. at 253 (emphasis added). By misidentifying the relevant decision maker for so long, KCSR has not acted to bring us expeditiously and fairly to this ultimate question.”
Assuming, as the parties did, that Thornell was the relevant decision maker, his declaration did not meet the Burdine burden of production. “A declaration from someone who acknowledges he may not even have been the decision-maker and makes no effort to re-evaluate what he would have done at the time based on what would have been before him, produces nothing to support the employer’s evidentiary burden.” And although the disciplinary files included other documents discussing the circumstances of each incident, none bore on the admitted decision maker’s actual rationale for why he made disparate decisions for white and black employees.
Thus, absent such reasons, the two employees were entitled to proceed to trial.
Judge Owen, dissenting, rejects the premise that the employer’s burden of production includes evidence of such precision: “The panel majority apparently would require Thornell to explain why he disciplined Turner by terminating him, instead of some lesser sanction, and to further explain why he did not terminate other employees who violated operational rules. KCSR is not required to come forward with such evidence at the second stage of the burden-shifting framework of McDonnell Douglas. As the Second Circuit has explained, the employer does not have the burden at the second stage of rebutting pretext. Such a “requirement would place on the employer at the second stage of the McDonnell Douglas process ‘the burden of showing that the reason for the rejection was not a pretext, rather than requiring such proof from the employee as a part of the third step'” (quoting Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir. 1980)).