                   REVISED JUNE 22, 2012
         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                  Fifth Circuit

                                                                          FILED
                                                                         March 23, 2012
                                      No. 09-30558
                                                                         Lyle W. Cayce
                                                                              Clerk
THOMAS D TURNER,

                                                 Plaintiff - Appellant
v.

KANSAS CITY SOUTHERN RAILWAY COMPANY,

                                                 Defendant - Appellee


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                                 Plaintiff - Appellant

THOMAS D. TURNER,

                                                 Intervenors - Appellants
v.

KANSAS CITY SOUTHERN RAILWAY COMPANY,

                                                  Defendant - Appellee


                  Appeals from the United States District Court
                      for the Eastern District of Louisiana


Before DENNIS, OWEN, and SOUTHWICK,* Circuit Judges.
DENNIS, Circuit Judge:




     *
         Judge Southwick concurs in the result only.
                                 No. 09-30558

      In this employment discrimination case, the Equal Employment
Opportunity Commission (EEOC) and Thomas D. Turner (collectively, “the
plaintiffs”) appeal the district court’s grant of the summary judgment motion of
defendant Kansas City Southern Railway Company (KCSR), dismissing all of
the plaintiffs’ claims that the decisions to discipline Turner and three other
African American employees for putative work-rule violations were based on
race in violation of federal and state laws. We AFFIRM with respect to the
claims based on the decisions to discipline Jesse Frank and Clarence Cargo
because we conclude that the EEOC has failed to establish a prima facie case of
discrimination with regard to those decisions. However, we REVERSE with
respect to the claims based on the decisions to discipline Thomas Turner and
Lester Thomas because we conclude that the plaintiffs have established a prima
facie case of discrimination; and that KCSR has failed to produce admissible
evidence of legitimate, nondiscriminatory reasons for those decisions. Thus, a
jury question exists as to whether the decisions to discipline Turner and Thomas
were impermissibly based on race.
                                       I.
      The discrimination claims of four KCSR employees are relevant in this
appeal: Thomas Turner, Lester Thomas, Jesse Frank, and Clarence Cargo. All
four are African American, and all four were disciplined between 2002 and 2004
following separate incidents involving putative violations of KCSR’s workplace
rules. The plaintiffs contend that these employees were disciplined, or received
more severe discipline, because of their race. The circumstances leading to the
complained-of discipline are as follows:
•     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


                                       2
                                      No. 09-30558

       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.
       All four employees administratively appealed their discipline pursuant to
their collective bargaining agreements.1 The appeals resulted in the discipline
for Turner, Frank, and Cargo being reduced; Thomas, meanwhile, accepted a
“leniency reinstatement” from KCSR while his administrative appeal was
pending.



       1
         Turner and Frank appealed first to Denise L. Brame, KCSR’s Manager of Labor
Relations; then to Kathleen A. Alexander, KCSR’s Director of Labor Relations; and finally to
Public Law Board No. 6647, which was comprised of Merle W. Geiger, a representative of the
union; Kathleen Alexander, representing KCSR; and a neutral member, Robert L. Hicks.
Cargo also initially appealed to Brame and then to Alexander; but instead of pursuing his
appeal to the Public Law Board, Cargo appealed to the National Railroad Adjustment Board.
Public Law Boards and the National Railroad Adjustment Board are provided for by the
Railway Labor Act. See 45 U.S.C. § 153; Public Law 89-456, 80 Stat. 208 (1966).

                                             3
                                  No. 09-30558

      Independently of these administrative appeals, the plaintiffs sued KCSR
regarding the initial disciplinary decisions. Turner filed suit against KCSR in
federal district court in 2003, alleging that the initial decision to dismiss him
was based on race in violation of 42 U.S.C. § 1981 and the Louisiana
Employment Discrimination Law, La. Rev. Stat. § 23:332. In 2005, the EEOC,
after conducting an investigation, filed suit against KCSR alleging that the
initial disciplinary decisions against Turner, Thomas, Frank, and Cargo were
based on race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. Turner intervened in the EEOC’s suit and the district court
consolidated the two cases.
      During the EEOC’s investigation and the first few years of discovery in
this litigation, KCSR identified the employees who investigated each of the
incidents as the persons responsible for making the disciplinary decisions at
issue—that is, the decisions to dismiss Turner, Thomas, and Cargo, and to
suspend Frank. However, in depositions later conducted by the EEOC, those
employees testified that they did not make these disciplinary decisions. At least
one of the employees identified J.R. Thornell, who served as KCSR’s General
Superintendent of Transportation from 2002 to 2005, as the person responsible
for making these decisions. Thereafter, in 2008, more than four years after
these decisions were made, KCSR admitted that Thornell was the “likely”
decisionmaker, but at the same time, averred that Thornell could no longer
remember any of these specific decisions. 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



                                        4
                                       No. 09-30558

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.
       KCSR moved for summary judgment; the district court granted the motion
and dismissed all of the plaintiffs’ claims. Turner v. Kan. City S. Ry. Co., 622
F. Supp. 2d 374, 378 (E.D. La. 2009).2 The district court adopted most of KCSR’s
summary judgment arguments and concluded that the plaintiffs had failed to
establish a prima facie case of discrimination under the first step of the
McDonnell Douglas burden-shifting framework. Id. at 386-89. The district court
also concluded, in the alternative, that KCSR had met its burden at the second
McDonnell Douglas step by producing evidence of legitimate, nondiscriminatory
reasons for its disciplinary decisions of Turner, Thomas, Cargo, and Frank; and
that the plaintiffs had failed to meet their burden at the third step of the
McDonnell Douglas analysis to show that KCSR’s proffered reasons were
pretextual. Id. at 393-96. The plaintiffs timely appealed.




       2
          The district court did not specifically mention Turner’s § 1981 and Louisiana
Employment Discrimination Law claims; however, the court’s opinion stated that “”[a]ll claims
against KCS[R] are hereby DISMISSED WITH PREJUDICE.” 622 F. Supp. 2d at 396.
Therefore, the district court disposed of Turner’s § 1981 and Louisiana law claims along with
the plaintiffs’ Title VII claims. The parties do not contend that Turner’s § 1981 and Louisiana
Employment Discrimination Law claims should be analyzed or resolved any differently from
the Title VII claims related to Turner. Indeed, employment discrimination claims under
Title VII, § 1981, and the Louisiana Employment Discrimination Law are analyzed under the
same standard. See Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 311
(5th Cir. 1999) (“Employment discrimination claims brought under 42 U.S.C. [§] 1981 . . . are
analyzed under the evidentiary framework applicable to claims arising under Title VII . . . .”);
Knapper v. Hibernia Nat’l Bank, 49 So. 3d 898, 902 n.11 (La. Ct. App. 2010) (“Claims under
the [Louisiana Employment Discrimination Law] are subject to the same analysis as
discrimination claims under federal Title VII of the Civil Rights Act of 1964.” (citing Hicks v.
CLECO, Inc., 712 So. 2d 656 (La. Ct. App. 1998); Plummer v. Marriott Corp., 654 So. 2d 843
(La. Ct. App. 1995))). Accordingly, our conclusion that the district court erred in granting
summary judgment for KCSR on the plaintiffs’ Title VII claims related to Turner applies
equally to Turner’s § 1981 and Louisiana Employment Discrimination Law claims.

                                               5
                                       No. 09-30558

                                              II.
       “This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court.” EEOC v. WC&M Enters.,
Inc., 496 F.3d 393, 397 (5th Cir. 2007) (citing Turner v. Baylor Richardson Med.
Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “On a motion for summary judgment, the court must view the
facts in the light most favorable to the non-moving party and draw all
reasonable inferences in its favor.” WC&M Enters., 496 F.3d at 397 (citing
Hockman v. Westward Commc’ns, L.L.C., 407 F.3d 317, 325 (5th Cir. 2004)).
Therefore, because KCSR moved for summary judgment, we must view the
evidence in the light most favorable to the plaintiffs. “In reviewing the evidence,
the court must . . . ‘refrain from making credibility determinations or weighing
the evidence.’” Id. at 397-98 (quoting Turner, 476 F.3d at 343).
       Where a defendant has moved for summary judgment on an employment
discrimination claim based on circumstantial evidence, as in this case, we apply
the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).3 See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222
(5th Cir. 2000). The first step of the McDonnell Douglas analysis requires “[t]he



       3
          Turner argues in his reply brief that “[s]ince [he] has provided direct evidence of a
cover up intended to exonerate a white employee at the expense of a black employee, it is not
necessary to work through the McDonnell Douglas test.” Turner Reply Br. 13. However, in
his opening brief, Turner argued only that this putative “direct evidence” established his prima
facie case under the McDonnell Douglas framework. See Turner Br. 16, 19, 35. It is true that
“the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of
discrimination.” Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 621-22 (1985).
Nonetheless, we will not decide if the evidence Turner points to qualifies as direct evidence of
discrimination taking this case out of the McDonnell Douglas framework because Turner did
not raise this argument in his initial brief, and “[t]his Court will not consider a claim raised
for the first time in a reply brief.” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

                                               6
                                  No. 09-30558

plaintiff [to] establish a prima facie case that the defendant made an
employment decision that was motivated by a protected factor.” Mayberry v.
Vought Aircraft Co., 55 F.3d 1086, 1089 (5th Cir. 1995).         If the plaintiff
establishes a prima facie case, we proceed to the next stage of the analysis,
where “the defendant bears the burden of producing evidence that its
employment decision was based on a legitimate nondiscriminatory reason.” Id.
If the defendant carries its burden, the analysis moves to the third McDonnell
Douglas step, where “[t]he burden . . . shifts back to the plaintiff to prove that
the defendant’s proffered reasons were a pretext for discrimination.” Id.
                                        III.
      First, we address whether the plaintiffs have met their burden to establish
a prima facie case of discrimination.
                                        A.
                                         i.
      The Supreme Court and this court have explained the standard for
establishing a prima facie case of discrimination in the context of a Title VII
claim of disparate treatment. “The burden of establishing a prima facie case of
disparate treatment is not onerous.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981). The prima facie case is necessarily a flexible standard that
must be adapted to the factual circumstances of the case. Id. at 253 n.6;
McDonnell Douglas, 411 U.S. at 802 n.13. Nonetheless, “[t]he prima facie case
serves an important function in the litigation: it eliminates the most common
nondiscriminatory reasons for the plaintiff’s [discipline].” Burdine, 450 U.S. at
253-54. “[T]he prima facie case ‘raises an inference of discrimination only
because we presume these acts, if otherwise unexplained, are more likely than
not based on the consideration of impermissible factors.’” Id. at 254 (quoting
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)).



                                         7
                                    No. 09-30558

      This court has held that “[i]n work-rule violation cases,” such as the
instant case, “a Title VII plaintiff may establish a prima facie case by showing
‘either [1] that he did not violate the rule[,] or [2] that, if he did, white employees
who engaged in similar acts were not punished similarly.’” Mayberry, 55 F.3d
at 1090 (quoting Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir.
1980)). “To establish a prima facie case in this [second] manner, [the plaintiff]
must show that . . . employees [who were not members of the plaintiff’s protected
class] were treated differently under circumstances ‘nearly identical’ to his.” Id.
(citing, inter alia, Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)).
“The employment actions being compared will be deemed to have been taken
under nearly identical circumstances when 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.” Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260
(5th Cir. 2009) (footnotes omitted). Moreover, “the plaintiff’s conduct that drew
the adverse employment decision must have been ‘nearly identical’ to that of the
proffered comparator who allegedly drew dissimilar employment decisions,”
because “[i]f the difference between the plaintiff's conduct and that of those
alleged to be similarly situated accounts for the difference in treatment received
from the employer, the employees are not similarly situated for the purposes of
an employment discrimination analysis.” Id. (internal quotation marks omitted).
      However, we have made clear that “nearly identical” is not “synonymous
with ‘identical.’” Id.; see also id. at 260 n.25 (“[T]his Circuit’s ‘nearly identical’
standard is not equivalent to ‘identical.’”). “Applied to the broader circumstances
of a plaintiff's employment and that of his proffered comparator, a requirement
of complete or total identity rather than near identity would be essentially
insurmountable, as it would only be in the rarest of circumstances that the
situations of two employees would be totally identical.” Id. at 260. “For example

                                          8
                                       No. 09-30558

. . . [e]ach employee’s track record at the company need not comprise the
identical number of identical infractions, albeit these records must be
comparable.”      Id. at 260-61.       “As the Supreme Court has instructed, 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 a
company codes an infraction under its rules and regulations. Otherwise, an
employer could avoid liability for discriminatory practices simply by coding one
employee’s violation differently from another’s.” Id. at 261 (citing McDonald v.
Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11 (1976)).                   “The relevant
perspective is that of the employer at the time of the adverse employment
decision.”    Id. at 261 n.27 (citing Perez v. Tex. Dep’t of Criminal Justice,
Institutional Div., 395 F.3d 206, 210 (5th Cir. 2004)).
                                              ii.
       The parties do not quarrel with these standards for establishing a prima
facie case of discrimination in a work-rule violation case; they disagree, however,
about another aspect of the prima facie case.4 KCSR argues that to establish a
prima facie case, the plaintiffs must show a “causal nexus” between the alleged
discriminatory motivation of the person who decided to dismiss Turner, Thomas,
and Cargo, and to suspend Frank, and the disciplinary decisions later rendered
by the administrative appeals boards. KCSR refers to the decisions of the
administrative appeals boards as “the ultimate discipline decisions,” the



       4
        The EEOC also contends that under McDonald v. Santa Fe Trail Transportation Co.,
427 U.S. 273 (1976), it could establish a prima facie case of discrimination by showing that a
black train engineer or conductor was disciplined more severely than the white conductor or
engineer who was working on the train at the time of the incident—what the EEOC refers to
as the “same incident test.” However, the EEOC did not make this argument below, and
therefore, we will not address it for the first time on appeal. See Nasti v. CIBA Specialty
Chems. Corp., 492 F.3d 589, 595 (5th Cir. 2007) (“If an argument is not raised to such a degree
that the district court has an opportunity to rule on it, we will not address it on appeal.”
(internal quotation marks omitted)).

                                              9
                                         No. 09-30558

“disciplinary actions at issue,” and the “alleged adverse employment actions.”
KCSR Br. at 17-18, 47-48. KCSR is mistaken.
       The decisions of the administrative appeals boards are not the decisions
at issue. Instead, the plaintiffs’ claims are that the initial decisions to dismiss
Turner, Thomas, and Cargo, and to suspend Frank violated Title VII. The
EEOC’s Amended Complaint5 alleges:
       7.      . . . . Defendant engaged in unlawful employment practices
               . . . in violation of . . . Title VII, 42 U.S.C. § 2000e-2(a) and
               §2000e-3(a). Specifically:
               A.      Turner. On or about October 23, 2002, Defendant
                       terminated the employment of Turner on the basis of
                       his race (Black), in violation of Title VII.
               B.      Frank. On or about February 5, 2003, Defendant
                       suspended Frank for 90 days on the basis of his race
                       (Black), in violation of Title VII.
               C.      Cargo. On or about May 29, 2003, Defendant
                       suspended Cargo for 45 days on the basis of his race
                       (Black) and/or in retaliation for engaging in protected
                       activity, in violation of Title VII. On or about January
                       23, 2004, Defendant terminated the employment of
                       Cargo on the basis of his race, and/or in retaliation for
                       engaging in protected activity, in violation of Title VII.
               D.      Thomas. On or about March 12, 2004, Defendant
                       terminated the employment of Thomas on the basis of
                       his race (Black), in violation of Title VII.
Thus, the allegedly “unlawful employment practices” under Title VII6 at issue
in this case are these initial decisions and not the disciplinary decisions made
by the administrative appeals boards.


       5
         Turner filed an Intervenor Complaint alleging that his claim “arises out of the same
facts and circumstances, occurring at the same time, [and] involves the same set of witnesses,
facts and laws as the matter contained in the EEOC’s complaint; Title VII.”
       6
         Title VII provides, among other things, that “[i]t shall be an unlawful employment
practice for an employer . . . to discharge any individual, or otherwise to discriminate 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).

                                               10
                                       No. 09-30558

       KCSR mistakenly relies upon cases in which the final decisionmaker was
different from the intermediate supervisor with discriminatory animus toward
the plaintiff. See Jennings v. Ill. Dep’t of Corrs., 496 F.3d 764 (7th Cir. 2007);
Mato v. Baldauf, 267 F.3d 444 (5th Cir. 2001); Sherrod v. Am. Airlines, Inc., 132
F.3d 1112 (5th Cir. 1998). Here, by contrast, the plaintiffs contend that the final
decisionmaker was Thornell; that he was motivated by discriminatory animus
when he made the decisions to dismiss Turner, Thomas, and Cargo, and to
suspend Frank; and that these decisions violated Title VII.
       Therefore, we do not agree with KCSR that the plaintiffs need to show that
the alleged discriminatory animus motivating the disciplinary decisions at issue
in this case “caused” later decisions that are not at issue.
                                              B.
       Turning to whether the plaintiffs established a prima facie case of
discrimination, we conclude that, viewing the evidence in the light most
favorable to the plaintiffs, the plaintiffs have met their burden with regard to
the decisions to dismiss Turner and Thomas, but not the decisions to suspend
Frank and to dismiss Cargo.
                                               i.
       With regards to the decision to dismiss Turner, we conclude that the
plaintiffs have met their burden to establish a prima facie case by showing that
Turner received more severe discipline than a similarly situated white employee,
Thomas Schmitt, under nearly identical circumstances. See Lee, 574 F.3d at
259-61.7 “The employment actions being compared will be deemed to have been



       7
         We note that the plaintiffs also argue that they established a prima facie case by
showing that Turner did not in fact violate any workplace rule. We need not address this
argument, however, because we conclude that they have met their burden by showing
disparate treatment of a similarly situated white employee. Of course, this does not foreclose
the plaintiffs from presenting evidence to the jury that Turner did not violate a workplace rule
and arguing that the jury can infer discrimination from such evidence.

                                              11
                                 No. 09-30558

taken under nearly identical circumstances when 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.” Id. at 260. “[W]e require that an employee who
proffers a fellow employee as a comparator [to] demonstrate that the
employment actions at issue were taken under nearly identical circumstances.”
Id. (internal quotation marks omitted). However, we must keep in mind that we
are reviewing KCSR’s motion for summary judgment, and thus, we “must view
the facts in the light most favorable to” the plaintiffs, WC&M Enters., 496 F.3d
at 397; and KCSR is required to “show[] that there is no genuine dispute as to
any material fact.” Fed. R. Civ. P. 56(a).
      Turner was terminated following an incident on October 1, 2002, in which
he and Schmitt were operating a train—Turner, as the engineer, was controlling
the locomotive; Schmitt, as the conductor, was providing instructions to Turner
via radio from the ground—when the damaged engine that their train was
shoving onto a spur track derailed at a low speed. Turner’s letter of termination
stated that Turner was found to have violated KCSR “General Code of Operating
Rules 2.13, 6.22, 6.28, 7.1, 7.12, and 7.2.”    The plaintiffs contend that a
comparable employment action for Schmitt was the decision to not discipline him
following the derailment incident for which Turner was dismissed. However,
KCSR argues that this decision was not made under nearly identical
circumstances because Schmitt was found not to be at fault in the derailment
incident. The EEOC points to record evidence—viz., the deposition of Paul
Lobello, who was responsible for investigating this incident for KCSR—which
indicates that Schmitt was also at fault. Therefore, according to the EEOC, the
disparate decisions, most likely made by the same individual, J.R. Thornell, are
comparable. Lobello’s deposition, however, indicates that he believed that
Schmitt and Turner were not necessarily equally at fault.

                                       12
                                  No. 09-30558

      We need not decide, however, whether Turner’s and Schmitt’s conduct was
“nearly identical” because the plaintiffs have offered another employment action
for Schmitt that we conclude is comparable: the decision to suspend Schmitt for
45 days for a sideswipe incident that occurred on October 30, 2002, only a few
weeks after the derailment incident. According to KCSR’s own records relating
to that incident, Schmitt was found responsible for “violation of restricted speed
or the operational equivalent thereof, failure to protect a shoving movement on
the main line resulting in a run through of the crossover switch, [and]
sideswiping 2 hazardous material cars — [General Code of Operating Rules]
1.1.1, 1.6, 2.13, 6.28, 6.5, 7.1, 7.2 and System Timetable No. 5 Rule 1.16.”
      Two points convince us that Schmitt’s violations arising from the
sideswipe incident are comparable to Turner’s putative violations in the
derailment incident. First, Schmitt was found to have violated most of the same
workplace rules that Turner was found to have violated. Second, KCSR does not
dispute that there is a meaningful distinction between the rules that Turner and
Schmitt were found to have violated. Instead, KCSR argues that “[g]enerally,
a derailment is a more serious incident than a sideswipe.” KCSR Br. 32 (citing
a statement from the affidavit of KCSR’s Director of Labor Relations that says,
“a derailment is generally a more serious incident than a sideswipe”). In
contrast to this general statement, Paul Lobello, who investigated both the
derailment and sideswipe incidents, testified in his deposition about these
specific incidents. He testified that this sideswipe incident was “more severe”
than the derailment incident in terms of “[t]he damages and the hazardous
material,” and that otherwise, “[t]he circumstances were the same . . . with
regards to the fact that in both instances we had a locomotive engineer that
operated without proper guidance.” “As the Supreme Court has instructed, 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 a


                                       13
                                        No. 09-30558

company codes an infraction under its rules and regulations,” Lee, 574 F.3d
at 261 (footnote omitted); and we have explained that “[t]he relevant perspective
is that of the employer at the time of the adverse employment decision.” Id. at
261 n.27. Under that standard, and viewing the evidence in the light most
favorable to the plaintiffs, these violations are comparably serious.
       Additionally, the record evidence shows that Schmitt and Turner had “the
same . . . responsibilities,” and “had their employment status determined by the
same person.” Id. at 260. Although Turner was an engineer and Schmitt was
a conductor, KCSR does not contend that Schmitt’s responsibilities during the
sideswipe incident were materially different than Turner’s responsibilities
during the derailment incident.8 Further, KCSR has averred that J.R. Thornell
is most likely the person who was responsible for making the decisions to
dismiss Turner and to suspend Schmitt.
       We are also satisfied that Turner and Schmitt had “essentially comparable
violation histories.” Id. According to KCSR’s records, Turner had the following
disciplinary history preceding the derailment incident: In December 2000,
Turner was reinstated after having been dismissed in October 1999 for failing
a random alcohol test; in 1988, he was suspended for ten days for a failed brake
test; and in 1982, he received a written reprimand for a deficient train
inspection.9 KCSR acknowledges that Schmitt had the following disciplinary
history preceding the sideswipe incident: In 1999, Schmitt was discharged for


       8
         Indeed, KCSR quotes its own General Code of Operating Rule 1.47 as providing: “[T]he
conductor and the engineer are responsible for the safety and protection of their train [and]
observance of the rules . . . . [I]f any doubts arise concerning the authority for proceeding or
safety, the conductor must consult with the engineer who will be equally responsible for the
safety and proper handling of the train.”
       9
         The record in this case also includes a 1974 drug test for Turner that showed “a long
acting barbiturate,” but there is no indication that Turner was disciplined as a result of this
test, and KCSR does not include this incident in its chart of Turner’s “[d]iscipline [h]istory at
[t]ime of [v]iolation.” KCSR Br. 62.

                                              14
                                   No. 09-30558

failing to follow directions (and later reinstated); in 1990, he received a written
reprimand;10 and in 1988, he received two written reprimands and was later
discharged for failing an alcohol test following a derailment in which he was the
brakeman. In sum, Turner had one prior violation serious enough to warrant
dismissal and one violation serious enough to warrant a short suspension; on the
other hand, Schmitt had two previous infractions serious enough to warrant
dismissal both times. These employment histories, which are marked by a
comparable number of serious violations by train operators with similar
responsibilities, are sufficiently similar to require comparison. See id. at 261-62.
      KCSR argues that Turner’s and Schmitt’s employment histories are not
comparable because Schmitt’s positive alcohol test occurred many years before
the sideswipe incident when he was acting as a brakeman, whereas Turner’s
positive alcohol test occurred two years before the derailment incident when
Turner was an engineer. However, these distinctions do not render Turner’s and
Schmitt’s employment histories incomparable. We have “emphasize[d] . . . that
this Circuit’s ‘nearly identical’ standard is not equivalent to ‘identical.’” Id. at
260 n.25; see also id. at 260 (“We do not . . . interpret ‘nearly identical’ as
synonymous with ‘identical.’”); id. at 261 (“Each employee’s track record at the
company need not comprise the identical number of identical infractions . . . .”).
A requirement of something more stringent than nearly identical employment
histories would run afoul of the Supreme Court’s instruction that “[t]he burden
of establishing a prima facie case of disparate treatment is not onerous.”
Burdine, 450 U.S. at 253. It is also worth noting that Schmitt’s positive alcohol
test occurred in connection with an incident in which a train derailed, whereas
Turner’s test was a random test unrelated to any incident. Therefore, Schmitt’s



      10
         Turner also points out that the record shows that Schmitt was issued a second
written reprimand in 1990.

                                         15
                                  No. 09-30558

alcohol incident was not so much less serious than Turner’s as to undermine our
conclusion that Schmitt and Turner had comparable employment histories.
      The parties also quarrel over the significance of Turner’s December 2000
reinstatement order. KCSR contends that “Turner’s recent reinstatement was
on a ‘last-chance’ basis, meaning he could be dismissed for any further
violations.” KCSR Br. 32; see also id. at 33 (“The order d[id] not limit [Turner’s]
last-chance status to alcohol/drug violations, nor d[id] it preclude his dismissal
for other violations, such as derailment.”). According to KCSR, Schmitt was not
similarly situated to Turner because he was not on a “last-chance basis” at the
time of the sideswipe incident. The EEOC responds that the reinstatement
order was related only to drug and alcohol testing and there was no allegation
that Turner was intoxicated or refused a drug or alcohol test in relation to the
derailment incident; thus, the reinstatement order was not implicated.
      We agree that the mere fact of the reinstatement order does not render
Turner’s disciplinary history incomparable to Schmitt’s. The reinstatement
order provided only that a violation of any of its terms would be “sufficient
grounds for [Turner’s] permanent dismissal,” and the derailment incident did
not implicate any of the terms of the reinstatement order. Therefore, the
derailment incident did not, based on the terms of the reinstatement order,
provide “sufficient grounds” to dismiss Turner. Moreover, in the same period of
time that Turner had been dismissed and later reinstated, Schmitt had also been
discharged, for failing to follow directions, and later reinstated. Thus, Schmitt’s
disciplinary history is comparable to Turner’s, despite the reinstatement order.
      KCSR may still argue to the jury that these distinctions between Turner’s
and Schmitt’s infractions and employment histories account for the difference
in their discipline; however, we cannot say that, viewing the evidence in the light
most favorable to the plaintiffs, these distinctions show that the employment
actions were not taken under nearly identical circumstances. Therefore, we

                                        16
                                      No. 09-30558

conclude that the plaintiffs have met their burden to establish a prima facie case
of discrimination with regard to the decision to dismiss Turner.
                                             ii.
       We also conclude that the EEOC has met its burden to establish a prima
facie case of discrimination with regard to the decision to dismiss Lester Thomas
by showing that a white employee, Joshua Hall, was disciplined less severely
than Thomas under nearly identical circumstances.11
       Thomas was dismissed following an incident in February 2004 in which
the train that he and Hall were operating—Thomas was the conductor and Hall
was the engineer—failed to stop within the appropriate distance of a “dark
signal” during an unannounced safety test. Hall was initially dismissed, then
reinstated thirty days later. KCSR’s Disciplinary Action Reports for Thomas
and Hall, generated after the investigation and hearing to determine whether
any workplace rules were violated, both specify that Thomas and Hall committed
the exact same infractions: “[General Code of Operating Rules] 1.1.1, 8.9, 8.9.1,
8.10 & TT No. 5[,] Page 198, Item 9[.] Failure to control train in accordance with
a signal displaying a dark aspect at S. LaBarre in addition to f/t update consist
after picking up cars from Baton Rouge Yard while serving as [‘Engineer’ in
Hall’s case, and ‘Conductor’ in Thomas’ case] of the INOKC.” Therefore, it is
abundantly clear that Thomas’ and Hall’s violations “were essentially the same.”
Lee, 574 F.3d at 260 n.25.
       KCSR argues that Thomas and Hall were not equally at fault for two
reasons: “First, only Thomas failed to update the train consist, and thereby


       11
          The EEOC argues also, as it did for Turner, see supra note 4, that it established a
prima facie case by showing that Thomas did not in fact violate any workplace rule. As with
Turner, we need not reach this argument because we conclude that the EEOC has met its
burden by showing disparate treatment of a similarly situated white employee. Accordingly,
we make the same observation here that we made with regard to Turner’s claim: Our decision
does not foreclose the EEOC from presenting evidence to the jury that Thomas did not violate
a workplace rule and arguing that the jury can infer discrimination from such evidence.

                                             17
                                 No. 09-30558

committed rule violations that Hall did not.” KCSR Br. 39. However, KCSR’s
Disciplinary Action Reports for Thomas and Hall state that both men were found
to have failed to update the consist. Therefore, the record does not support
KCSR’s assertion. Second, KCSR argues that Thomas was more at fault for the
failure of the train to timely stop because “[Thomas], but not Hall, failed to
diligently watch for the signal as the rules require.” Id. However, in McDonald
v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976), the Supreme Court
expressly rejected the argument that in order to establish a prima facie case the
plaintiffs “were required to plead with ‘particularity’ the degree of similarity
between their culpability in the alleged theft and the involvement of the favored
coemployee.” Id. at 283 n.11. Instead, the Court held that “precise equivalence
in culpability between employees is not the ultimate question.” Id. The ultimate
question is “the ‘comparable seriousness’ of the offenses.” Lee, 574 F.3d at 261,
260 n.25; see also McDonald, 427 U.S. at 283 n.11. Viewed in the light most
favorable to the EEOC, Thomas’s and Hall’s offenses are comparably serious.
      KCSR does not allege that Thomas and Hall are incomparable because of
differences in their responsibilities; nor does it allege that the employment
status of each was determined by different people. The only remaining issue is
whether Thomas and Hall “have essentially comparable violation histories.” Lee,
574 F.3d at 260. We conclude that they do. KCSR’s only argument about why
their histories are incomparable is based on the fact that Thomas had a greater
number of violations than Hall—Thomas had eight infractions in his disciplinary
history whereas Hall had only four. See KCSR Br. 39-40, 63. However, as the
EEOC correctly points out, Thomas began working for KCSR in 1981, whereas
Hall was hired in 2000. As we said in Lee, “[e]ach employee’s track record at the
company need not comprise the identical number of identical infractions, albeit
these records must be comparable.” 574 F.3d at 261. In Lee, we concluded that
“employment histories marked by a comparable number of serious moving

                                       18
                                     No. 09-30558

violations” were comparable by looking only at the violations that had occurred
“[d]uring the same period.” Id. In this case, in the four years preceding the
incident, during which time Thomas and Hall both worked at KCSR, Thomas
had five violations to Hall’s four;12 both of them had three moving violations; and
Hall was disciplined for an incident involving a sideswipe and another involving
a derailment, whereas Thomas was cited for only one derailment. We must view
the facts in the light most favorable to the EEOC, and KCSR must show the
absence of a genuine dispute of material fact to be entitled to summary
judgment. However, KCSR has made no argument about why Thomas’ and
Hall’s infractions are incomparable. Thus, we conclude that Hall is a proper
comparator whom the district court erroneously rejected.
                                           iii.
      The EEOC contends that it established a prima facie case of
discrimination with regard to the 90-day suspension of Jesse Frank for a missed
call because Frank Mouney is a valid comparator, and Mouney was disciplined
less severely than Frank under nearly identical circumstances. We disagree
because Frank’s and Mouney’s employment histories are not sufficiently similar.
See Lee, 574 F.3d at 261-62. There are some similarities in their employment
histories: Frank was hired in 1972 and Mouney in 1978; Frank’s first recorded
violation was in 1985 and Mouney’s was in 1984; and both had a comparable
number of violations for missed calls.            However, there are also critical
differences: Frank had significantly more moving violations than Mouney,
including one that resulted in Frank having his engineer’s license suspended;
and unlike Mouney, Frank was discharged in 1997 due to a failed alcohol test.
Therefore, we conclude that Frank’s and Mouney’s employment records are not


      12
          KCSR mistakenly claims that “[s]ix of [Thomas’] prior incidents occurred between
January 2002 and January 2004.” KCSR Br. 40. That misstatement is belied by KCSR’s own
chart, which reveals that Thomas had five infractions in that period. Id. at 63.

                                           19
                                  No. 09-30558

“essentially comparable,” id. at 260; and thus, that the EEOC has not
established a prima facie case of discrimination for the decision to suspend
Frank for ninety days for a missed call.
                                        iv.
      With respect to the decision to dismiss Clarence Cargo, the EEOC
contends only that it established a prima facie case based on its “same incident
test.” See supra note 4. However, the EEOC failed to argue before the district
court that under McDonald, 427 U.S. 273, it could establish a prima facie case
simply by showing that two employees of different races received disparate
treatment from their participation in the same incident.       Thus, we will not
consider this argument for the first time on appeal. See Nasti, 492 F.3d at 595.
                                       IV.
      Having concluded that the plaintiffs established a prima facie case of
discrimination with respect to the decisions to dismiss Turner and Thomas, we
turn to decide whether KCSR has met its burden at the second step of the
McDonnell Douglas analysis, viz., to produce admissible evidence that these
decisions were based on legitimate, nondiscriminatory reasons. We conclude
that KCSR has failed to meet this burden.
      In Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981), the Supreme Court explained that “[t]he nature of the burden that shifts
to the defendant should be understood in light of the plaintiff’s ultimate and
intermediate burdens.” Id. at 253. The plaintiff’s “ultimate burden” is to
“persuad[e] the trier of fact that the defendant intentionally discriminated
against the plaintiff.” Id. The defendant’s intermediate burden “serves to bring
the litigants and the court expeditiously and fairly to this ultimate question.”
Id. At the same time, “[t]he burden that shifts to the defendant . . . is to rebut”
the “presumption that the employer unlawfully discriminated against the
employee,” which presumption arises from the “[e]stablishment of the

                                        20
                                  No. 09-30558

[plaintiff’s] prima facie case.” Id. at 254. While the defendant is not required to
“persuade the court that it was actually motivated by the proffered reasons,” in
order to satisfy its burden, “the defendant must clearly set forth, through the
introduction of admissible evidence, the reasons for [its decision].” Id. at 254-55.
“An articulation not admitted into evidence will not suffice. Thus, the defendant
cannot meet its burden merely through an answer to the complaint or by
argument of counsel.” Id. at 255 n.9. “If the defendant carries this burden of
production, the presumption raised by the prima facie case is rebutted, and the
factual inquiry proceeds to a new level of specificity,” id. at 255 (footnote
omitted); that is, “the inquiry . . . turns from the few generalized factors that
establish a prima facie case to the specific proofs and rebuttals of discriminatory
motivation the parties have introduced,” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 516 (1993). “Placing this burden of production on the defendant thus serves
simultaneously to meet the plaintiff’s prima facie case by presenting a legitimate
reason for the action and to frame the [ultimate] factual issue [of discrimination
vel non] with sufficient clarity so that the plaintiff will have a full and fair
opportunity to demonstrate pretext. The sufficiency of the defendant’s evidence
should be evaluated by the extent to which it fulfills these functions.” Burdine,
450 U.S. at 255-56.
      For more than four years, KCSR misidentified the relevant decisionmaker,
and by the time the likely decisionmaker was identified, that person could no
longer remember making the decisions to dismiss Turner and Thomas. During
the EEOC’s investigation and throughout the initial phases of discovery in this
case, KCSR identified the pertinent decisionmakers as Paul Lobello and Robert
Lane Bonds, the KCSR employees who had investigated the incidents involving
Turner and Thomas. However, when the EEOC later deposed Lobello and
Bonds, they testified that they did not make the dismissal decisions. Bonds
testified that J.R. Thornell, KCSR’s General Superintendent of Transportation

                                        21
                                   No. 09-30558

from 2002 to 2005, decided to dismiss Thomas (and to dismiss and later reinstate
Joshua Hall). In 2008—six years after the decision to dismiss Turner and four
years after the decision to dismiss Thomas—KCSR finally responded to the
EEOC’s third request for admissions by admitting that Thornell had made the
decisions to terminate Turner and Thomas. However, in the same response,
KCSR explained that “Thornell has no present recollection regarding” these
decisions. Later that year, in a deposition conducted by the EEOC, Thornell
testified that he could not remember making these decisions; and in a
declaration subsequently submitted by KCSR, Thornell stated:
            3.      As the General Superintendent, I was the person
      responsible for making disciplinary decisions regarding
      Transportation employees, including engineers and conductors.
            4.      In making these disciplinary decisions, I would review
      the transcript of the investigation into the incident and the subject
      employee's disciplinary history. I also relied on the disciplinary
      policy in effect at the time. On many occasions I would consult with
      others, including the investigating officer or the Director of Labor
      Relations, before making a determination.
            5.      I cannot be completely sure that I made the disciplinary
      decisions at issue in this case pertaining to Thomas Turner . . . and
      Lester Thomas. While it was my responsibility at the time to make
      these decisions, if I was absent I may have delegated the decision to
      someone else, primarily the Assistant Superintendent.
            6.      I do not have any specific recollection of the disciplinary
      actions or decisions that are at issue in this case. I made many
      hundreds of these decisions during my tenure as General
      Superintendent and none of them stand out. Additionally, I have
      had some very serious health problems over the last several years,
      which have impaired my memory.
      It is undisputed that the Assistant Superintendent mentioned by Thornell
was A.J. Sonnier, who died during the litigation in this case. There is no
deposition testimony, affidavit, or declaration from Sonnier in the record. Thus,
Thornell’s own declaration casts doubt on KCSR’s admission that Thornell was
in fact the relevant decisionmaker. In sum, the fact that KCSR misidentified the


                                         22
                                       No. 09-30558

relevant decisionmaker for so long makes it now impossible to know whether
Thornell or Sonnier made the decisions to dismiss Turner and Thomas.
       The character of the plaintiffs’ ultimate burden depends on whether
Sonnier or Thornell made the relevant decisions—that is, they must prove that
the actual decisionmaker was motivated by race in taking the adverse
employment action. Thus, the nature of the defendant’s intermediate burden
also depends on whether Sonnier or Thornell made the relevant decisions.
Burdine, 450 U.S. at 253 (“The nature of the burden that shifts to the defendant
should be understood in light of the plaintiff’s ultimate and intermediate
burdens.”).13 We note, for example, that there is extensive record evidence of
race-based comments by Sonnier, which, if he were the actual decisionmaker,
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 decisionmaker for so long, KCSR has not acted to bring us expeditiously
and fairly to this ultimate question.              KCSR is no stranger to Title VII




       13
          See Patrick v. Ridge, 394 F.3d 311, 319 (5th Cir. 2004) (“As the ultimate issue is the
employer’s reasoning at the moment the questioned employment decision is made, a
justification that could not have motivated the employer’s decision is not evidence that tends
to illuminate this ultimate issue and is therefore simply irrelevant at this stage of the
inquiry.”); Sabree v. United Bhd. of Carpenters & Joiners Local No. 33, 921 F.2d 396, 404 (1st
Cir. 1990) (“Unless . . . a defendant articulates a legitimate non-discriminatory reason that
actually motivated the decision, the reason is legally insufficient.” (internal quotation marks
omitted)); cf. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir. 2000) (“We . . .
look to who actually made the decision” because the ultimate issue is the discriminatory
animus of that person.).

                                              23
                                       No. 09-30558

employment discrimination litigation,14 and it would behoove KCSR to discharge
its burden with greater acuity.
       Nonetheless, the parties do not dispute that Thornell likely made the
decisions to dismiss Turner and Thomas; and instead, they focus their
arguments on the evidence that KCSR contends satisfies its burden. We agree
with the plaintiffs that this evidence is insufficient. KCSR asserts in its brief
that “[i]n determining the discipline to be issued to Turner, KCSR management
considered the information contained in the transcript [of the investigative
hearing], the hearing officer’s assessment of the evidence, and Turner’s previous
disciplinary history.” KCSR Br. 8. Likewise, with respect to the discipline of
Thomas, KCSR asserts that “KCSR management reviewed the hearing
transcript and Thomas’ disciplinary record to determine the appropriate
discipline.” KCSR Br. 11. Because the “argument of counsel” cannot satisfy the
defendant’s burden, Burdine, 450 U.S. at 255 n.9, we must consider the specific
evidence that KCSR cites in support of these assertions. We conclude that the
evidence that KCSR cites fails to satisfy its burden of production.
       KCSR first cites a paragraph from an affidavit of KCSR’s Director of Labor
Relations, Kathleen Alexander.15 However, that paragraph indicates only that
Thornell was likely the decisionmaker, and does not explain the reasons for
Thornell’s decisions.
       Next, KCSR cites Thornell’s declaration.               However, this particular
declaration does not satisfy the railroad’s burden of production. It did not


       14
         See, e.g., Lee v. KCSR, 574 F.3d 253 (5th Cir. 2009); Hannawacker v. KCSR, 326 F.
App’x 269 (5th Cir. 2009) (unpublished); Abner v. KCSR, 513 F.3d 154 (5th Cir. 2008); Carter
v. KCSR, 456 F.3d 841 (8th Cir. 2006); Grappe v. KCSR, 71 F. App’x 302 (5th Cir. 2003)
(unpublished); Baylor v. KCSR, 31 F. App’x 833 (5th Cir. 2002) (unpublished).
       15
        Alexander’s affidavit states: “During the time period that J.R. Thornell served as the
General Superintendent of Field Operations for [KCSR] he was the designated employee to
make the disciplinary decisions for all Brakemen Trainees, Conductors, and Locomotive
Engineers (‘Train and Engine’ or ‘T & E’ employee).”

                                             24
                                        No. 09-30558

attempt to have Thornell tie his usual practice to the particular decisions made
here. Neither did the declaration say that Thornell looked anew at the evidence
available at the time of the discipline, nor that Thornell looked at the discharge
letters the railroad sent the employees and believed that the letters properly
reflected the decisions he would have made. Indeed, Thornell’s saying that he
might not have been the decision-maker likely eliminates its sufficiency on
summary judgment. 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.16
       KCSR then cites Turner’s and Thomas’ discharge letters, which it says “set
forth the grounds on which the Charging Parties were disciplined.” KCSR
Br. 53. Although the discharge letters state that Turner and Thomas were found
to have violated certain workplace rules, they do not provide any reason for
Thornell’s decisions to dismiss these employees: The letters are not signed by
Thornell; they do not mention the employees’ disciplinary histories; and they do
not give any indication that they reflect Thornell’s reason for choosing to dismiss
the employees, as opposed to merely suspending them. The investigating officers
who signed those letters both testified that they had no part in assessing the
chosen discipline, and were unclear about Thornell’s reason for dismissing
Turner and Thomas. Moreover, Bonds, who investigated Thomas’s incident and
signed Thomas’s discharge letter, testified that he “didn’t understand the
reasoning” behind Thornell’s decision to fire Thomas but reinstate Hall, and that


       16
           KCSR contends that Mayberry v. Vought Aircraft Co., 55 F.3d 1086 (5th Cir. 1995),
supports its argument that Thornell’s declaration satisfies its burden; however, that case does
not help KCSR’s position. The parties in Mayberry did not dispute that the defendant employer
had met its burden; and the defendant employer’s summary judgment evidence included an
affidavit giving a specific reason for the employer’s decision to suspend the plaintiff employee.
See id. at 1091-92; see also Brief for Appellant at 5, 13, Mayberry v. Vought Aircraft Co., 55
F.3d 1086 (5th Cir. 1995) (No. 94-10825), 1994 WL 16507696, at *5, *13.

                                              25
                                 No. 09-30558

it “seem[ed] odd” because “[i]n the past, if a crew was fired, the crew came back
together.”
      KCSR next cites “[t]he transcripts of the investigative hearings,” which
again, it asserts “set forth the grounds on which discipline was decided.” KCSR
Br. 53. However, the hundreds of pages of transcripts that KCSR cites discuss
only the circumstances of the incidents in which Turner, Frank, and Cargo were
involved. (There is no transcript of any hearing related to Thomas’ case.) The
transcripts do not, as KCSR asserts, include any reason for why the particular
disciplinary decisions were made. Indeed, the transcripts do not even include
a determination about whether or not the employees violated a workplace rule.
      Finally, KCSR cites “[t]he letters from Denise Brame[, KCSR’s Manager
of Labor Relations,] and Kathleen Alexander[, KCSR’s Director of Labor
Relations,] denying the appeals of the Charging Parties”; and “[t]he decisions of
the various arbitral boards uphold[ing] the reasons for the disciplinary
decisions.” Id. However, these documents are insufficient. The letters from
Brame and Alexander regarding Turner—there are no letters regarding Thomas’
case—merely state, as did the discharge letter from Lobello, that the
investigative hearing showed that Turner had violated company rules. The
letters do not mention Thornell or his decision to dismiss Turner. The same is
true of the decision of the Public Law Board with regard to Turner (again, there
is no decision related to Thomas’ case): It does not mention, nor give any reason
for Thornell’s decision to dismiss Turner. In fact, the Public Law Board decision
is at odds with Thornell’s dismissal decision: The Board decided that Turner’s
violation warranted only a long suspension. Thus, that decision does not provide
KCSR with a legitimate, nondiscriminatory reason for the decision to dismiss
Turner. Moreover, the letters and Board decision reflect decisions of people
other than Thornell, made after Thornell’s challenged decisions. Accordingly,
they do not give any reason for Thornell’s decisions at the time that he made

                                       26
                                      No. 09-30558

those decisions, and thus cannot satisfy KCSR’s burden. See Burdine, 450 U.S.
at 254-55; Patrick, 394 F.3d at 319 (“As the ultimate issue is the employer’s
reasoning at the moment the questioned employment decision is made, a
justification that could not have motivated the employer’s decision is not
evidence that tends to illuminate this ultimate issue and is therefore simply
irrelevant at this stage of the inquiry.”).
       Therefore, we hold that KCSR has not met its burden at this stage of the
inquiry of producing legitimate, nondiscriminatory reasons that motivated the
actual employment decisions at issue here.17
                                             V.
       “In the context of an employer’s motion for summary judgment seeking
dismissal of an employee’s discrimination [claims], a holding that the employer’s
offered reasons for its adverse decision does not fulfill its burden of production
under McDonnell Douglas is the legal equivalent of the employer’s having
produced no reason at all.” Patrick, 394 F.3d at 320. Thus, because “the
plaintiff[s] . . . ha[ve] produced evidence sufficient to make out a prima facie
case” with respect to the discipline of Turner and Thomas, “and the defendant
employer has failed to rebut the presumption of discrimination with evidence of
a legitimate, nondiscriminatory reason for its employment decision, the
[plaintiffs] [are] entitled to take [their] case to a jury.” Id. at 316 (citing Fisher
v. Vassar Coll., 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), abrogated on other
grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)); see
also id. at 320 (“As we hold that the [defendant employer] has not met its burden
of producing a legitimate, non-discriminatory reason, we never reach the
question whether [the plaintiffs] could demonstrate pretext, much less whether


       17
         We need not and do not offer any opinion on whether any of this evidence is relevant
to or admissible at trial to show that the employment decisions were not motivated by
discriminatory animus.

                                             27
                                  No. 09-30558

discrimination actually motivated [their] employer’s decision [at issue]. [The
plaintiffs’] prima facie case thus pretermits summary judgment dismissal of
[their] action, leaving the ultimate question of discriminatory animus to be
determined by the trier of fact.”).
      We therefore affirm the district court’s grant of KCSR’s motion for
summary judgment on the discrimination claims related to the decisions to
discipline Jesse Frank and Clarence Cargo, but reverse on the claims related to
the decisions to dismiss Thomas Turner and Lester Thomas; and we remand this
case for further proceedings consistent with this opinion.




                                      28
                                       No. 09-30558

OWEN, Circuit Judge, concurring in the judgment in part and dissenting in
part:

       The concurring and dissenting opinion issued on March 23, 2012, is
withdrawn. The following is substituted.


       I would affirm the district court’s judgment in its entirety. I therefore
concur in the panel majority’s judgment regarding its disposition of the claims
of Jesse James Frank and Clarence Cargo. I do not agree with all of Judge
Dennis’s reasoning as to those claims, however, and join in the judgment only
with regard to Frank and Cargo. I dissent with respect to the claims asserted
by Thomas Turner and Lester Thomas because I would affirm the district court’s
grant of summary judgment in favor of Kansas City Southern Railway Company
(KCSR).
                                               I
       There is error in Judge Dennis’s opinion that pervades its analysis of
Thomas Turner’s claims. First, at the second stage of the familiar burden-
shifting framework set forth in McDonnell Douglas Corp. v. Green,1 KCSR was
required to produce evidence of a legitimate, nondiscriminatory reason for its
adverse employment action against Turner, not why it chose termination instead
of a lesser disciplinary action or why it did not terminate other employees for
similar violations.2 KCSR has met its burden of production because there is
evidence that Turner violated operational rules, termination was within the
range of options for disciplining such violations, and Turner was told he was


       1
           411 U.S. 792, 803 (1973).
       2
          Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Mayberry v.
Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (holding in a work-rule violation case
that “by insisting that there was no racial motivation in its decision to suspend Mayberry [and]
that the decision was based solely on its conclusion, following an investigation, that Mayberry
was at least partially at fault . . . [the employer] has discharged its burden of production.”).

                                              29
                                       No. 09-30558

terminated due to those violations. Second, Judge Dennis’s opinion incorrectly
focuses only on whether there is evidence of the reason that J. R. Thornell
decided to terminate Turner. Judge Dennis’s opinion rejects KCSR’s arguments
that Thornell was not the final decision-maker and that two independent
internal reviews were thereafter conducted as to whether Turner had violated
operational rules and whether the discipline for those violations was
appropriate. Evidence regarding these reviews establishes a neutral reason for
the actions that KCSR took.3 In fact, after the two internal reviews of the
disciplinary action taken against Turner, a third review was conducted by a
three-member Public Law Board that included a union representative and a
neutral public member. The Board unanimously held: “[u]pon the whole record
and all the evidence, . . . shoving the disabled engine over a derail can be
attributed to [Turner’s] negligence in not following the Rules.” However, the
Board converted the termination “to a long suspension,” which amounted to
more than a year, and directed that Turner be reinstated without back pay. The
Board also admonished that, “[t]he next time [Turner] faces a disciplinary
hearing for any infraction of the Rules, the next Board will surely weigh the two
dismissals that were converted to long suspensions in judging the severity of the
discipline.”
           Evidence that KCSR had a legitimate, non-discriminatory reason for
concluding that Turner violated operational rules and terminating him abounds.
I am mystified how anyone could conclude otherwise.




       3
        Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir. 1980) (“It is enough for the defendants in
the second phase of the case to bring forth evidence that they acted on a neutral basis.”).

                                             30
                                          No. 09-30558

                                               A
       If the record before us does not contain evidence of a non-discriminatory
reason for terminating Turner, then very few records would satisfy that burden
of production. Within two weeks after the derailment, KCSR held an extensive
hearing, with sworn testimony that was transcribed, about the cause of the
derailment. The record of that hearing is voluminous. The entire focus of
Turner’s disciplinary proceedings at each stage was the cause of the derailment
and who was at fault. In fact, there is no evidence that Turner was terminated
for any reason other than his fault in the derailment, except for the alleged
disparate treatment of other employees, which will be discussed in more detail
below. While Turner continues to dispute any wrongdoing in causing the
derailment, the evidence is overwhelming that KCSR thought that he was
primarily, if not solely, at fault, and that he had violated operational rules.
“[E]ven an incorrect belief that an employee’s performance is inadequate
constitutes a legitimate, nondiscriminatory reason” for an adverse employment
action.4
       There is sufficient evidence to satisfy the employer’s burden of production
in the burden shifting framework in employment discrimination cases.5
Contrary to Judge Dennis’s opinion, the evidence frames the issue “with
sufficient clarity so that the plaintiff will have a full and fair opportunity to
demonstrate pretext.”6




       4
        Mayberry, 55 F.3d at 1091 (quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th
Cir. 1991)).
       5
         See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993); Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254 (1981).
       6
           Burdine, 450 U.S. at 255-56.

                                              31
                                 No. 09-30558

                                       B
      Judge Dennis’s opinion mistakenly focuses on the initial decision to
terminate Turner.     P. A. Lobello testified that after presiding over the
evidentiary hearing, he concluded that Turner had violated operational rules
and that those violations had resulted in the derailment. But Lobello did not
decide the disciplinary action to be taken.     He identified Thornell as the
individual who made that decision. However, this was not the final employment
decision. Two independent investigations were subsequently conducted within
KCSR, and evidence of the reasons given for Turner’s discipline at the conclusion
of each of those reviews must be considered.
      There is evidence that after Turner received the letter dated October 23,
2002, signed by Lobello, which said that Turner had violated seven specified
operating rules and that Turner was terminated, two subsequent independent
internal reviews occurred at Turner’s request.          First, Turner’s union
representative appealed the disciplinary ruling in Lobello’s letter to Denise
Brame, an African American whose title was Manager-Labor Relations. In a
letter dated February 3, 2003, Brame informed Turner’s representative that she
had “carefully reviewed the transcript of the formal investigation held and the
discipline assessed” and that she had concluded that “[t]he discipline issued in
this case was fully warranted and clearly supported by the facts adduced at the
formal investigation.” The letter set forth the specific violations committed by
Turner. The letter further stated
      Mr. Turner received due process in accordance with the Collective
      Bargaining Agreement. As a result, the formal investigation was
      fair and impartial. There was no showing of any arbitrary or
      capricious action against Mr. Turner by the Carrier, nor could the
      penalty issued be determined as unwarranted or excessive due to
      the importance of the proven rule violations.




                                       32
                                          No. 09-30558

      This is admissible evidence of the reason articulated by KCSR for
terminating Turner. It is sufficient to meet KCSR’s burden of production, even
if there were no other evidence of why Turner was terminated.
      A second internal review of Turner’s termination occurred after Brame
sent her letter. Kathleen Alexander, whose title was Director of Labor Relations
for KCSR, informed Turner’s representative in a letter dated May 8, 2003, that
Turner’s request for reinstatement and lost pay remained declined because
Turner “was afforded a fair and impartial investigation and the transcript
clearly proved that Claimant was guilty of the rules violations with which he
was charged.”
      Turner pursued a further appeal to the Public Law Board, which consisted
of a union representative, a KCSR member, and a neutral member. The Public
Law Board likewise concluded that Turner was at fault in connection with the
derailment, but the Board converted his dismissal to a long suspension and
directed that he be reinstated without back pay.
      The initial decision to terminate Turner, whether made by Thornell or
another KCSR employee, was not “rubber-stamped” by any of those involved in
the subsequent investigations of whether Turner had violated operational rules
and the appropriate punishment.7 Evidence regarding KCSR’s entire process in
disciplining Turner should be considered.
      The facts before us are similar to, though far less damning than, those
before the Seventh Circuit in Jennings v. Illinois Department of Corrections.8 In
Jennings, a correctional officer was terminated for smuggling contraband into
a prison and trading that contraband with inmates for goods from the prison




      7
          See generally Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001).
      8
          496 F.3d 764 (7th Cir. 2007).

                                              33
                                 No. 09-30558

commissary.9 Jennings contended that he was terminated and denied “a last-
chance settlement agreement” because he was Mexican-American.10 There was,
in the words of the Seventh Circuit, “a plethora of evidence of discriminatory
remarks and comments” about Mexican-Americans in general and Jennings,
personally, by two individuals involved in investigating Jennings and
recommending his termination, including the prison’s warden.11 There was also
evidence that “non-Mexican-Americans were treated more favorably when
caught engaging in prohibited conduct.”12 However, the Seventh Circuit looked
beyond the two individuals’ improper motivations.13 That court considered
evidence that the warden had initiated an investigation against Jennings, in the
course of which an independent investigator interviewed eight inmates and
Jennings and concluded that Jennings engaged in the charged conduct.14 The
evidence also revealed that the other individual who had made racially charged
statements recommended a hearing before the correctional center’s Employee
Review Board after the independent investigation had concluded.15 That Board
recommended discharge, and the warden signed the discharge.16 The Illinois
Department of Central Management Services approved the discharge.17 The
Seventh Circuit held that even assuming Jennings had made a prima facie case,

      9
          Id. at 766.
      10
           Id. at 766.
      11
           Id.
      12
           Id.
      13
           Id. at 768.
      14
           Id.
      15
           Id.
      16
           Id.
      17
           Id.

                                      34
                                       No. 09-30558

the employer had met its burden of proffering a legitimate explanation of its
adverse employment action by offering evidence of the independent investigation
and independent arbitrator’s conclusions that Jennings had engaged in trading
and trafficking, which was prohibited conduct.18
      In the present case, the decisional process beyond Thornell’s involvement
must be considered and provides evidence of a legitimate, nondiscriminatory
reason for Turner’s termination. When evidence of that process is considered,
the district court’s ruling as to Turner must be affirmed.
                                              C
      Judge Dennis’s opinion concludes that the affidavit from J. R. Thornell,
dated almost seven years after the derailment, is no evidence at all of a
legitimate, nondiscriminatory reason for the adverse employment action against
Turner. I disagree. Thornell’s affidavit is entirely consistent with all of the
contemporaneous evidence of the reason for Turner’s discharge. Furthermore,
Turner knew that Thornell was involved in the disciplinary actions against him
as early as the initial evidentiary hearing held within two weeks after the
derailment. Judge Dennis nevertheless takes KCSR to task for not identifying
Thornell sooner than it did in answers to discovery requests.
      My colleague 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.19 Such a “requirement would place on the


      18
           Id. at 768-69.
      19
           Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir. 1980).

                                              35
                                              No. 09-30558

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.’”20
          Thornell avers in his declaration that as General Superintendent of
Transportation, he “was the person responsible for making disciplinary
decisions” regarding employees, although at times, another employee made such
decisions. Thornell “made many hundreds of these decisions” and has no specific
recollection of Turner’s case. However, Turner recalls that Thornell was having
a discussion with Lobello outside the hearing room prior to the evidentiary
hearing held shortly after the derailment. Turner knew that Thornell was
involved in the decision-making process and tried to discuss his case with
Thornell as Thornell and Lobello were conversing. Thornell rebuffed Turner’s
effort.
          Lobello testified in his deposition in the present case that Thornell made
the decision to terminate Turner after the hearing had concluded. Therefore,
there is evidence that Thornell was the initial decision-maker regarding the
consequences of Turner’s violations of operating rules.
          Thornell affirmatively states how he reached disciplinary decisions. He
would review the transcript of the investigation into the incident and the
employee’s disciplinary history. He also relied on the disciplinary policy in effect
at the time. He states that he never made a decision based on race. The
affidavit is cumulative of considerable other evidence of the reason for Turner’s
discharge and is some evidence of a legitimate, nondiscriminatory reason for
discharging Turner. But even if the affidavit were not part of the record, there
is more than sufficient evidence of a legitimate, non-discriminatory action for the
employment decision.



          20
               Id. (quoting Bd. of Trustees of State College v. Sweeney, 439 U.S. 24, 24-25 n.1 (1978)).

                                                     36
                                         No. 09-30558

       Contrary to Judge Dennis’s opinion, all of the evidence presented by KCSR
regarding Turner’s violation of operational rules and his termination frames the
issue “with sufficient clarity so that the plaintiff will have a full and fair
opportunity to demonstrate pretext.”21 I strongly disagree with Judge Dennis’s
conclusion to the contrary.
                                                D
       The district court held that Thomas Turner, an African American, failed
to establish a prima facie case of racial discrimination, and I would affirm the
district court. Turner does not contend and cannot establish that after he was
terminated and before his reinstatement, he was replaced with a white person.
Turner’s position was not filled, and no engineers were hired at the New Orleans
facility during this time period.             Instead, Turner contends that he was
disciplined more severely than other white employees. In order to establish a
prima facie case on such a basis, Turner “must show that white employees were
treated differently under circumstances ‘nearly identical’ to his.”22 Turner’s
circumstances are not similar enough to either of his proposed comparators
(Schmitt and Mouney) to show disparate treatment. For the same reason,
Turner cannot show that KCSR’s legitimate, nondiscriminatory reason for his
dismissal was pretextual.
       Turner’s and Schmitt’s work histories are quite different. They had
different jobs—Turner was an engineer, and Schmitt was a conductor. Turner
controlled the movement of the train at the time of the derailment. Schmitt was
on the ground, outside of the train.                 Their disciplinary histories differ
significantly. While they may have had a comparable number of offenses, the
offenses were not “nearly identical.” Schmitt’s positive alcohol test occurred

       21
            Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56 (1981).
       22
         Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (quoting Little
v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)).

                                               37
                                       No. 09-30558

fourteen years before the derailment at issue while he was a brakeman. Turner
likewise had a positive test in the past, but Turner’s infractions continued over
time. In 1974, a drug test showed the presence of long-lasting barbiturates in
Turner’s system.        In 1982, Turner was reprimanded for a deficient train
inspection report. Six years later in 1988, Turner was suspended for failing a
brake test. Turner had a positive drug and alcohol test only two years before the
incident at issue in this case while he was an engineer, and he was terminated,
until a review board reinstated him with the proviso that any violation of the
reinstatement order’s terms would be sufficient grounds for dismissal. While the
incident here did not implicate any of the reinstatement order’s terms, the mere
existence of such an order is a major difference in the work histories of Turner
and Schmitt.
      Turner is also not similar to Frank Mouney. Almost all of the disciplinary
actions against Mouney were for missed-call violations, unlike Turner’s more
serious violations. In short, Turner’s work history is sufficiently different from
both Schmitt’s and Mouney’s work histories to account for the differences in
discipline. Nor has Turner pointed to anything that would show that KCSR’s
reason for dismissal is “false or unworthy of credence.”23 Accordingly, Turner
has not met his burden of producing evidence to show that KCSR’s legitimate,
non-discriminatory reason for his dismissal was a pretext for discrimination.
                                             II
      The district court concluded with regard to Lester Thomas that he failed
to demonstrate that he was treated differently from similarly situated
employees. The only comparator offered was Hall. For the reasons stated by the
district court, Hall’s history of disciplinary actions was not comparable to
Thomas’s, and Hall’s infractions were relatively minor. Hall received a five-day



      23
           Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011).

                                             38
                                      No. 09-30558

suspension while a helper for a sideswipe, a reprimand for a derailment while
serving as engine foreman, a three-day deferred suspension for a “bad-ordered”
car on an outbound train while he was a helper, and a five-day suspension for
proceeding past a blue flag.         By contrast, Thomas had received a 15-day
suspension for failure to control the speed of a train, a five-day suspension for
failing to protect a train in a shoving move and providing false information, a
three-day suspension for failure to follow instructions, a 15-day deferred
suspension for failure to follow instructions and other violations, a three-day
suspension for failure to acknowledge the presence of a train, a reprimand for
failure to sign a work order, a 45-day suspension and a 45-day deferred
suspension for occupying the main track without authority, and a ten-day
suspension and a 45-day deferred suspension for derailment. The disciplinary
histories of Thomas and Hall are not comparable, much less “nearly identical.”
       To allow a fact-finder to infer discriminatory intent from the disparate
positions and disciplinary histories of the comparators that Turner and Thomas
have offered is to allow a fact-finder to second-guess business decisions that
KCSR employees made in the furtherance of their job responsibilities and their
responsibilities to insure a safe working environment. Judge Dennis’s opinion
ignores our precedent: “we have repeatedly and emphatically stated that anti-
discrimination laws ‘are not vehicles for judicial second-guessing of business
decisions.’”24
                                         *****
       I would affirm the district court’s grant of summary judgment.




       24
          Mato v. Baldauf, 267 F.3d 444, 452 (5th Cir. 2001) (quoting Deines v. Tex. Dep’t of
Protective & Reg. Serv., 164 F.3d 277, 281 (5th Cir. 1999)).

                                             39
