     Case: 11-31186       Document: 00512055409         Page: 1     Date Filed: 11/16/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 16, 2012

                                     No. 11-31186                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



MARLIN DALE PLAYER,

                                                  Plaintiff–Appellant,
v.

KANSAS CITY SOUTHERN RAILWAY COMPANY,

                                                  Defendant–Appellee.



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:06-CV-1980


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Marlin Player was dismissed from his job with the Kansas City Southern
Railway after an investigation concluded he was partially responsible for an
incident in the rail yard that damaged some equipment, his sixth rule violation
in a three-year period. Player sued, claiming he lost his job due to racial
discrimination, but his case was dismissed on summary judgment. We conclude




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-31186

that Player has not met his burden of showing discrimination and therefore affirm.
                                        I
      Marlin Player worked in the Shreveport rail yard for the Kansas City
Southern Railway Company (KCSR). He served as a switchman, brakeman, and
conductor, and on some crews he also served as the foreman, conducting job
briefings and ensuring the crew members performed their jobs safely. He was
dismissed from his position after an incident on May 28, 2005, that amounted
to a violation of KCSR’s General Code of Operating Rules.
      Prior to his dismissal, Player had accrued five other rule violations in the
rolling three-year period considered by the railroad in deciding discipline and
dismissal. These violations included: (1) a derailment in the yard, a major
violation leading to a five-day suspension; (2) a sideswipe, leading to a
reprimand; (3) riding on moving equipment as conductor, a major violation
leading to a five-day actual and a twenty-five-day record suspension; (4) a
bypassed coupler incident, leading to a five-day actual and forty-day record
suspension; and (5) marking off under false pretenses, leading to a forty-five day
actual suspension.
      After an investigation of the May 28, 2005, incident, KCSR concluded that
Player, as foreman, supervised a crew that caused a “bypassed coupler,” which
damaged the equipment, despite the crew having been warned about safe
coupling practices earlier that day. Player was dismissed from service at the
conclusion of the investigation, but he appealed the decision. On appeal, the
Public Law Board concluded that although Player was “guilty, as charged” and
KCSR had met its burden of proof to administer “a severe disciplinary penalty,”
the penalty of dismissal was nonetheless “harsh and unreasonable.” The Board
converted Player’s termination into a suspension without pay for the time he had
been out of service and ordered him reinstated.



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                                         No. 11-31186

       Player also pursued a racial discrimination claim with the Equal
Employment Opportunity Commission, which dismissed his claim and issued a
right-to-sue letter. Player then filed this lawsuit. After discovery, KCSR moved
for and was granted summary judgment. The district court made alternative
holdings that Player had failed to state a prima facie case because his proposed
comparators were not similarly situated to him and that Player had failed to
establish that KCSR’s reasons for dismissal were pretextual. Player appeals.
                                               II
       We review a grant of summary judgment de novo, applying the same
standard as the district court.1 “Summary judgment is proper when ‘there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.’”2 Summary judgment will be granted “against a party who
fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of
proof.”3
       Player argues he suffered discrimination in violation of Title VII of the
Civil Rights Act4 and 42 U.S.C. § 1981. Claims under these two statutes are
governed by the same analysis.5 When a claim of discrimination is based on
circumstantial evidence as it is here, we assess the claim using the framework




       1
           Rachid v. Jack In The Box, Inc., 376 F.3d 305, 308 (5th Cir. 2004).
       2
        Quality Infusion Care, Inc. v. Health Care Serv. Corp., 628 F.3d 725, 728 (5th Cir.
2010) (quoting FED. R. CIV. P. 56(a)).
       3
        Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986)) (internal quotation marks omitted).
       4
           42 U.S.C. § 2000e-2.
       5
           DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007).

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                                          No. 11-31186

of McDonnell Douglas Corp. v. Green.6 Under McDonnell Douglas, Player must
establish a prima facie case of discrimination, at which point the burden shifts
to KCSR to provide a legitimate, nondiscriminatory reason for its actions.7 If it
does so, Player then bears the burden of demonstrating that KCSR’s proffered
reason was actually a pretext for racial discrimination.8
       To meet his burden to establish a prima facie case, Player must show that
he “(1) is a member of a protected group; (2) was qualified for the position at
issue; (3) was discharged or suffered some adverse employment action by the
employer; and (4) was replaced by someone outside his protected group or was
treated less favorably than other similarly situated employees outside the
protected group.”9 KCSR disputes only the fourth element.
       To satisfy the fourth element, the employment actions taken with respect
to the plaintiff and his comparators must occur “under nearly identical
circumstances.”10           That requirement is satisfied if “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.”11 “[C]ritically, the plaintiff's conduct
that drew the adverse employment decision must have been ‘nearly identical’ to




       6
        Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973)).
       7
           McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).
       8
           Id. at 804-05.
       9
        McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (per curiam) (citing
Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir. 2005)).
       10
            Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
       11
            Id. at 260 (footnotes omitted).

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                                        No. 11-31186

that of the proffered comparator who allegedly drew dissimilar employment
decisions.”12
       Player argues the district court incorrectly found that the circumstances
of his dismissal were not comparable to the circumstances of two proposed
comparators. Player claims he was treated less favorably than Greg Bickham
and Steve Sandlin, two locomotive engineers who Player says had actual
responsibilities similar to his and committed violations of comparable
seriousness to his.
       Player asserts that the district court looked only at job titles in deciding
that his comparators were insufficiently similar to him. He counters that “the
day-to-day reality of the positions makes them nearly identical” and that he
could be called upon to perform the duties of an engineer. However, Player cites
no record evidence that suggests he and his comparators “held the same job or
responsibilities.”
       Player further argues that he and his comparators had their job status
ultimately determined by the same person, Kathy Alexander. Although Player
asserts that Alexander was responsible for administering KCSR’s discipline
policy, Player has not presented any evidence that Alexander was involved in his
termination or that she declined to reinstate him.
       Player has likewise not shown his disciplinary history is similar to his
comparators’. To be “essentially comparable,” the disciplinary histories “need
not comprise the identical number of identical infractions” but must be
comparable, with similarity turning on the “comparable seriousness” of the
incidents for which the individuals were disciplined.13



       12
            Id.
       13
            Id. at 261 (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11
(1976)).

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                                        No. 11-31186

      Player quotes this court’s decision in Lee to provide Bickham’s disciplinary
history, naming three specific incidents: failing to inspect a train (thirty-day
suspension), improper handling of a train resulting in its separation (five-day
suspension), and occupying a main track without permission, which resulted in
his termination; Bickham was later reinstated by Alexander.14 Player also notes
four moving violations by Sandlin, who received discipline for three incidents of
failing to inspect a train (suspensions of forty-five days, five days actual and
sixty days record, and thirty days) and a side collision, which led to his
dismissal. At some point, Sandlin was also reinstated, though Player does not
cite any part of the record to establish the circumstances of his reinstatement.
      Prior to the violations that led to their dismissals, Bickham had accrued
two violations and Sandlin had accrued three. Despite Player’s assertion that
his history was similar to these comparators, he does not explain how their
records were comparable to Player’s five prior violations. Additionally, Player
has offered no evidence to indicate that the violation that led to his dismissal
was of comparable seriousness to the final violation for either Bickham or
Sandlin.
      Player has failed to establish a prima facie case. We base our decision not
on the individuals’ different job titles but rather on the record evidence
indicating that they did not perform the same functions, have the same
responsibilities, or have comparable disciplinary histories. “[E]mployees who
have different work responsibilities or who are subjected to adverse employment
action for dissimilar violations are not similarly situated.”15 Compared to both
Bickham and Sandlin, Player has not shown that he had similar work
responsibilities or that he was terminated for similar violations.                      Player


      14
           Id.
      15
           Id. at 259-60 (citing Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990)).

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                                 No. 11-31186

therefore has not demonstrated that he was similarly situated to either proposed
comparator.
      Because Player has not met the fourth element of his prima facie case, he
cannot establish discrimination. We therefore need not address the other steps
of the McDonnell Douglas analysis to conclude that the district court properly
granted summary judgment.
                                *      *      *
      The judgment of the district court is AFFIRMED.




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