Newton v. Illinois Central Railroad Company

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

TERRENCE K. NEWTON, SR. CIVIL ACTION

VERSUS 21-373-SDD-RLB

ILLINOIS CENTRAL RAILROAD

COMPANY

RULING

This matter is before the Court on the Motion for Summary Judgment1 by IC, Illinois

Central Railroad Company (“IC” or “Defendant”). Plaintiff, Terrence K. Newton, Sr.

(“Newton” or “Plaintiff”), has filed an Opposition2 to this motion, to which IC filed a Reply.3

For the following reasons, the Court finds that IC’s motion should be granted.

I. FACTUAL BACKGROUND

A. Local Rules – Statements of Fact

Local Rule 56(f) provides:

Facts contained in a supporting or opposing statement of material facts, if

supported by record citations as required by this rule, shall be deemed

admitted unless properly controverted. An assertion of fact set forth in a

statement of material facts shall be followed by a citation to the

specific page or paragraph of identified record material supporting the

assertion. The court may disregard any statement of fact not supported by

a specific citation to record material properly considered on summary

judgment. The court shall have no independent duty to search or

consider any part of the record not specifically referenced in the

parties’ separate statement of facts. (emphasis added).

1 Rec. Doc. 39.

2 Rec. Doc. 42.

3 Rec. Doc. 45.

Local Rule 56 (c) requires an opposing party to:

submit with its opposition a separate, short, and concise statement of

material facts. The opposing statement shall admit, deny or qualify the

facts by reference to each numbered paragraph of the moving party’s

statement of material facts and unless a fact is admitted, shall support

each denial or qualification by a record citation as required by this

rule. Each such statement shall begin with the designation “Admitted,”

“Denied,” or “Qualified” and, in the case of an admission, shall end with such

designation. The opposing statement may contain in a separately titled

section additional facts, each set forth in a separately numbered paragraph

and supported by a record citation as required by subsection (f) of this rule.

(emphasis added).

IC complied with the Local Rules and submitted a Statement of Material Facts with

citations to record evidence. Newton submitted with his Opposition a Statement of

Uncontested Material Facts;4 however, this document in no way complies with Local

Rules 56(c) or (f). Newton provides no citations to support any statements he offers, and

he fails to admit, deny, or qualify any statements offered by IC. Accordingly, the following

statements of fact are deemed admitted by Newton for purposes of this Ruling.5

B. IC’s Business Policies and Newton’s Roles

IC is a rail carrier that does business in the Middle District of Louisiana.6 Newton

began his employment with IC in 2006 in the role of laborer.7 Newton held several

different positions with IC until he became a Foreman in 2013.8 As Foreman, Newton

was in charge of a crew that handled problems on the track.9 All foremen who work for

IC are responsible for the maintenance of all track components, and they must

4 Rec. Doc. 42-1.

5 The Court considered the scant citations to record evidence in the body of Newton’s Opposition; however,

none of Newton’s cited evidence controverted IC’s documented statements of fact.

6 Rec. Doc. 41, p. 224, Declaration of Thomas Sullivan (“Sullivan Decl.”) ¶ 2.

7 Rec. Doc. 39-5, Newton Dep. pp. 10-11.

8 Id. at p. 11.

9 Id. at pp. 43, 51; Newton Dep. Ex. 11.

understand and comply with all track safety standards, Operating Rules, and safe work

procedures.10 During the course of his employment Newton received routine adequate

reviews although he was instructed to take his time and focus on the job.11

In his deposition, Newton described the responsibilities of an IC foreman. A

foreman and his crew only have authority to work within a designated area of a train

track.12 As the foreman, it was Newton’s responsibility to obtain a track authority to

establish the work area of his crew.13 A “track authority” is a directive that is issued either

over a radio or a computer that authorizes the employee to occupy a segment of track.14

Newton was required to work with IC’s Rail Traffic Control (“RTC”) team in Illinois to set

up and release authority to occupy the track.15 Establishing a crew’s track authority allows

everyone else on the track to know where a specific crew is working and provides

protection for the employees while they are working.16 Failure to establish proper track

authority could result in an oncoming train coming into the area and hitting an employee

working on that track.17 Thus, track authority violations are considered serious safety

violations due to the potential risk of physical injury and death to employees.18

To ensure the safety of its employees, IC provides employees with safety and rules

training which require employees to participate in safety meetings, pass operating exams,

10 Id. at pp. 53-54.

11 Id. at pp. 106-107, Newton Dep. Ex. 32.

12 Id. at pp. 42-43.

13 Id.

14 Id. at pp. 43-44; Rec. Doc. 41, pp. 226-227, Sullivan Decl. ¶ 8.

15 Newton Dep. pp. 43-44.

16 Id.; Rec. Doc. 41, pp. 226-227, Sullivan Decl. ¶ 8.

17 Id.

18 Sullivan Decl. ¶ 8; Rec. Doc. 41, p. 292, Declaration of Duane L. Spears (“Spears Decl.”) ¶ 6.

and keep their own copies of safety handbooks, including applicable railroad operating

rules (“United States Operating Rules” or “USOR”).19

Newton received two full days of classroom training on the USOR when he was

hired and again on a quarterly basis for refresher training.20 He was required to be familiar

with all operating rules, and he testified that he read the rules and kept a copy of his rule

book with him for reference at all times during his workday.21 Newton was tested on

compliance with and knowledge of USOR rules and successfully passed these tests.22

He also received training and was familiar with the On-Track Safety Rules.23 Newton

testified that he considered safety to be the “number one” priority at IC, and he understood

that dangerous consequences could result if workers did not follow safety rules.24

As a union member, Newton was subject to a collective bargaining agreement

(“CBA”) governing the terms and conditions of his employment, including discipline.25

Pursuant to the CBA, IC must conduct a formal investigation before it assesses discipline,

unless the employee agrees to accept responsibility for the incident and waives the

investigation. Investigative hearings are fact-finding hearings designed to determine

whether an employee is at fault for violating company rules, policies, laws, or practices.

Occasionally, an employee may decide to waive an investigative hearing, admit to the

conduct, and receive discipline; however, this wavier is unavailable if the discipline results

in termination.26

19 Newton Dep. p. 45; Newton Dep. Ex. 8 (“United States Operating Rules” or “USOR”); Spears Decl. ¶ 3.

20 Rec. Doc. 39-5, Newton Dep. pp. 45-46, 49.

21 Id. at pp. 46, 48.

22 Id. at pp. 48-49.

23 Id. at pp. 49-50; Newton Dep. Ex. 9.

24 Id. at p. 12.

25 Id. at pp. 50-51; Newton Dep. Ex. 10; Sullivan Decl. ¶¶ 6-7.

26 Id.; Sullivan Decl. ¶¶ 6-7.

In 2017, IC implemented a Discipline Policy intended to promote uniformity of

decisions in similar situations, avoid favoritism, and increase predictability in disciplinary

outcomes.27 Newton was aware of the policy.28 The Discipline Policy promotes “the safe,

orderly, and efficient operation of the railroad” by providing “direction for the

administration of discipline in a consistent and fair manner, with a focus on deterring and

preventing future Violations.”29 The Discipline Policy established a progressive discipline

system that ensured consistent application of discipline for similar rules violations.30 The

Discipline Policy classifies rule violations from Level 1 to Level 4, with Level 1 being the

least egregious, up to Level 4, which are violations that result in immediate dismissal.31

The Policy explains the levels as follows: A Level 1 violation is “non-critical,” such

as a peer-to-peer rule violation and failure to wear personal protective equipment; a Level

2 violation is “serious and/or has the potential to result in an accident or incident, damage

equipment or cause injury,” such as late reporting of an accident or injury and failure to

properly secure cars or locomotives; a Level 3 violation is a violation of a “critical rule” or

a violation “that is related to or implicates a critical rule,” including “conduct that may

subject the employee to mandatory decertification as required by FRA regulations;” and

a Level 4 violation “involves conduct that is extremely serious enough to result in

immediate termination,” such as purposeful disregard for rules or policies and failure or

refusal of a drug or alcohol test.32 The Policy also describes how cumulative violations

27 Newton Dep. at p. 38; Newton Dep. Ex. 5; Sullivan Decl. ¶ 4, Sullivan Decl. Ex. A; Spears Decl. ¶ 4,

Spears Decl. Ex. A.

28 Newton Dep. at p. 38.

29 Id., Newton Dep. Ex 5 at p. 1.

30 Sullivan Decl. ¶ 4.

31 Newton Dep. at pp. 38-40, Newton Dep. Ex. 5 at pp. 6-8.

32 Newton Dep. Ex. 5 at pp. 6-8.

may result in progressive discipline and provides detailed matrices.33 The “look-back”

period regarding disciplinary records is three years, beginning with the Discipline Policy’s

effective date of October 23, 2017.34 This policy was in effect at the time of Newton’s track

authority violations.35

The Discipline Policy provides for a Discipline Review Panel (“DRP”) to review

disciplinary decisions in certain circumstances, including when termination is

recommended.36 The DRP has final authority on any termination decision involving a

union employee resulting from the disciplinary process.37

C. Newton’s July 10, 2018 Track Authority Violation

On July 10, 2018, Newton was working as Track Foreman in Baton Rouge,

Louisiana with his crew on an area of track.38 Because another crew was already working

on the same segment of track, Newton and his crew were required to contact that crew

before occupying the track.39 Although Nelson had not sought or received track authority

to set on the track, nor had he contacted the foreman with whom he was supposed to

share track authority, Newton informed his crew that “they were good” to set their truck

onto the rail.40 While Newton’s crew was performing work, they observed the other crew

coming towards them on the track.41 The oncoming crew’s supervisor immediately told

Newton’s crew that they were in violation of the applicable operating rules.42 Michael

33 Id.

34 Sullivan Decl. ¶ 4.

35 Newton Dep. at pp. 38-39.

36 Id. at p. 38, Newton Dep. Ex. 5 at pp. 4-5; Sullivan Decl. ¶ 7.

37 Id.; Sullivan Decl. ¶ 7.

38 Id. at pp. 55-58.

39 Id. at pp. 56-57, Newton Dep. Ex. 14.

40 Id. at pp. 54-61, 63, Newton Dep. Ex. 13; Rec. Doc. 41, p. 361, Declaration of Chase Gregr (“Gregr

Decl.”) ¶ 7, Gregr Decl. Ex. A.

41 Newton Dep. at pp. 58-61.

42 Id.

Jones, a trackman on Newton’s crew, thanked the supervisor for the warning, observing

that the other car coming down the track “could have been bad.”43 Fortunately, Newton

and his crew were able to get off the track prior to any accident occurring.44

Newton’s supervisor, Track Supervisor Chase Gregr (“Gregr”), came out to the

site, interviewed the crew, and gathered statements from all involved.45 Newton signed a

written statement the same day, admitting that he had failed to contact the other crew’s

foreman as he was expected to do, stating, “It slip my mind[.] Just that fast[.] It was on

me! I m[e]ss up!”46

On July 20, 2018, Newton was issued a Notice of Investigation to attend an

investigatory hearing related to the July 10, 2018 track authority incident.47 Pursuant to

his CBA, Newton received an offer to waive the investigation and accept discipline for the

incident.48 Newton agreed and signed a Waiver of Investigation on July 20, 2018,

accepting responsibility for the charged conduct and agreeing that he committed a Level

3 rules violation under IC’s Discipline Policy of rules USOR 1004 (Joint Mandatory

Directives), OTS 100 (Fouling the Track), and USOR W (Job Briefing / Peer to Peer

Communications).49 Under IC’s Discipline Policy, first-time track authority violations are

always assessed as a Level 3 Violation and assessed a 30-day suspension due to the

possibility of physical injury and death to Company employees.50 Thus, Newton received

43 Gregr Decl. ¶ 7, Gregr Decl. Ex. A at IC000536.

44 Newton Dep. at pp. 58-61.

45 Gregr Decl. ¶ 7.

46 Newton Dep. at pp. 55, 63-64, Newton Dep. Ex. 13.

47 Id. at p. 54, Newton Dep. Ex. 12.

48 Id. at p. 66, Newton Dep. Ex. 15.

49 Id. at pp. 38, 66-67, Newton Dep. Ex. 5 at pp. 7-8, Newton Dep. Ex. 15.

50 Id. at p. 38, Newton Dep. Ex. 5 at 9-10.

a 30-day suspension from service.51 Newton completed his suspension and returned to

work on August 23, 2018.52

D. Newton’s May 6, 2019 Track Authority Violation

Less than 9 months after returning to work, on May 6, 2019, Newton was working

as the Foreman of a crew working on a grinding train known as a Loram Rail Grinder.53

Newton was piloting the train and in charge of the crew, and as the Foreman, Newton

was responsible for obtaining track authority for the protection of him and his crew.54 On

this date, Newton had track authority to work in the area between Flannery and West

Livingston, which is on the main line of the track.55 Newton subsequently obtained

authority to work between East Livingston and West Livingston, which included a siding

of the track.56

While working, Newton’s crew was asked to clear the way for a train to pass

through their designated work area.57 In response, Newton moved his train into the siding

and released all of his track authorities, including the track authority for the siding that he

and his crew were currently occupying.58 This complete release of all track authority

rendered his crew effectively invisible on the radar to other crews or trains.59 The proper

procedure in this circumstance was for Newton to release his track authority for the main

line while maintaining track authority for the siding, thus allowing the train to pass on the

51 Id. at p. 66, Newton Dep. Ex. 15.

52 Id. at pp. 66-67, 92, Newton Dep. Ex. 24.

53 Id. at p. 74.

54 Id.

55 Id., Newton Dep. Ex. 18.

56 Id. at pp. 74-76, Newton Dep. Ex. 19. Siding is a controlled area of track that is connected on each end

to the main track and is used for passing trains.

57 Id. at pp. 75-77, Newton Dep. Ex. 21 at p. 22.

58 Id.

59 Id. at pp. 75-80.

main line while ensuring that he and his crew maintained sole authority to occupy the

siding, thus protecting him and his crew.60

IC’s RTC saw that Newton had released all track authority, called Newton to inquire

if he was on the track, and Newton acknowledged that he was.61 RTC advised Newton

that he was unprotected and had no authority protecting himself and his crew.62 Newton

acknowledged the error, and RTC gave Newton a new track authority to work between

West Livingston and East Livingston and reported the incident to management.63

Newton acknowledged his error: “I had authority in the siding when I got it in there.

I was supposed to get another authority to stay in the siding;”64 and he testified that his

conduct on May 6, 2019 constituted a violation: “yes, it’s a track authority violation.”65

Gregr gathered witness statements from Newton and his crew regarding the May

6, 2019 incident.66 Newton’s written statement from the day of the incident states that he

“forgot to get [track authority] for siding before clear other authority.”67 Newton

subsequently received a Notice of Investigation for the May 6, 2019, incident,68 and he

was informed and aware that he could have union representation at the investigative

hearing and that he could call witnesses on his behalf.69

On May 10, 2019, IC conducted an investigative hearing regarding the incident.70

During this hearing, Gregr recounted the May 6, 2019 incident as described above and

60 Id. at pp. 75-77.

61 Id. at pp. 75 -78.)

62 Id. at pp. 76-78.)

63 Id. at pp. 76, 79-80, Newton Dep. Ex. 20.

64 Id. at p. 77.

65 Id. at p. 81.

66 Gregr Decl. ¶ 8, Gregr Decl. Ex. B.

67 Id.; Newton Dep. at p. 72, Newton Dep. Ex. 17.

68 Newton Dep. at p. 71, Newton Dep. Ex 16.

69 Id. at pp. 71-72.

70 Id. at p. 83, Newton Dep. Ex. 21.

explained Newton’s errors.71 Gregr testified that Newton took responsibility for his conduct

and expressed his confusion about his authority.72 Newton stated: “I’m truly sorry about

what happened, and I made a mistake. I got confused on that issue, clearing of the

authorities and stuff, and I wish that the company would give me a chance, if not more

than if they demote me down back to a trackman there to just keep my job.”73 Newton

acknowledged in his deposition that: “And my mistake was I should have got another

authority before I hit that button to clear the second – I mean the first authority that I had.

That was my mistake, an honest mistake. And I’ll take that one because I did do that not

intentionally but it happened.”74 Newton also agreed that he should have been disciplined

for this violation.75

After the hearing, Newton was found to have violated several critical rules,76 and it

was determined that these violations constituted a major safety infraction.77 Under the

Discipline Policy described above, these track authority violations are Level 3 violations.78

Newton had already received the 30-day suspension for the July 2018 track authority

violation, and the Policy provides that, if an employee has a second Level 3 violation

within a three-year period, the appropriate and only discipline available is discharge.79

71 Id. at pp. 81, 83-84, 87; Newton Dep. Ex. 21 at pp. 11-13; Newton Dep. Ex. 22.

72 Id. at p. 83, Newton Dep. Ex. 21 at 11-13.

73 Id., Newton Dep. Ex. 21 at pp. 22-23.

74 Id. at p. 34.

75 Id. at p. 90.

76 On-Track Safety Rule 100, Fouling the Track (Newton Dep. at pp. 84-86; Newton Dep. Ex. 21 at pp. 13-

14); OTS 101, Authority or Protection (Newton Dep. at p. 83; Newton Dep. Ex. 21 at 14); On-Track Safety

Rule 400 (Newton Dep. at p. 83; Newton Dep. Ex. 21 at p. 15); USOR 1003, Track Authority in CTC

Territory (Newton Dep. at p. 83; Newton Dep. Ex. 21 at pp. 15-16); USOR General Rule W (Newton Dep.

at p. 83; Newton Dep. Ex. 21 at pp. 16-17; Newton Dep. Ex. 22.).

77 Sullivan Decl. ¶¶ 8-11; Spears Decl ¶¶ 5-6.

78 Newton Dep. at p. 38, Newton Dep. Ex. 5 at 7-10; Sullivan Decl. ¶¶ 8-11.

79 Id., Newton Dep. Ex. 5 at 7-10; Sullivan Decl. ¶¶ 8-11.

Accordingly, the Discipline Policy mandated Newton’s termination for committing two

Level 3 violations within a twelve-month-period.

The DRP, which included Senior Human Resources Manager Duane Spears

(“Spears”) (a Black male) and Director of Human Resources and Labor Relations Thomas

Sullivan (“Sullivan”) (a White male), reviewed the transcript, hearing evidence, and

presumptive termination recommendation under the Discipline Policy.80 In accordance

with the Discipline Policy, Newton was terminated on May 30, 2019.81 Both Sullivan and

Spears gave sworn statements that Newton’s race played no role in their decision to

follow the recommendation for termination.82

Newton failed to offer any evidence to contradict or dispute the facts set forth

above, and he does not dispute any of the above facts in his opposition brief. Indeed,

Newton testified that he never heard any racist comments or statements that he believed

reflected a discriminatory animus during his employment,83 and he never reported any

concerns of discrimination during his employment with IC until he filed his EEOC

Charge.84

E. Newton’s Lawsuit

On February 10, 2020, Newton filed a charge with Louisiana Commission on

Human Rights (“LCHR”) and the Equal Employment Opportunity Commission (“EEOC”)

alleging race and age discrimination.85 However, in this lawsuit, Newton alleges only

discrimination based on race, not age. Newton’s initial Complaint asserted claims of race

80 Sullivan Decl. ¶ 10; Spears Declaration ¶¶ 2, 5, 6.

81 Newton Dep. at p. 91, Newton Dep. Ex. 23; Sullivan Decl. ¶ 10; Spears Dec. ¶¶ 5-6.

82 Sullivan Decl. ¶ 11; Spears Decl. ¶ 6.

83 Newton Dep. at p. 36.

84 Id. at p. 70.

85 Id. at pp. 12-13, Newton Dep. Ex. 1.

discrimination and retaliation under Title VII of the Civil Rights Act of 196486 and

corresponding state law. Newton conceded that dismissal of his state law and federal

retaliation claims was proper, and the Court dismissed these claims.87 Upon IC’s motion,

the Court dismissed Newton’s Title VII race discrimination disparate treatment claim

under Rule 12(b)(6) of the Federal Rules of Civil Procedure without prejudice, affording

Newton an opportunity to amend his Complaint to adequately plead his disparate

treatment claim,88 and Newton filed a Third Amended and Supplemental Complaint.89

IC now moves for summary judgment on Newton’s Title VII disparate treatment

claim, arguing that he has failed to present a prima facie case because he has failed to

demonstrate that he was qualified for the job held, and he failed to identify a similarly

situated comparator outside the protected class who was treated more favorably. Further,

IC contends it has presented a legitimate, non-discriminatory reason for Newton’s

termination, and Newton has presented no evidence that this reason was a pretext for

race discrimination. Newton’s counters that he has established a prima facie case

because a purportedly similarly situated White employee, Myles Moman (“Moman”), also

an IC Foreman, committed the same infractions as Newton but received lesser or no

discipline.90

86 42 U.S.C. § 2000e et seq.

87 See Rec. Doc. 46, p. 2 (citing Rec. Doc. 36).

88 Id.

89 Rec. Doc. 47.

90 Rec. Doc. 42. In prior versions of Newton’s Complaint, he named additional purported comparators;

however, in the operative Complaint, and in his Opposition, Newton presents only Moman as a comparator.

II. LAW AND ANALYSIS

A. Summary Judgment

In reviewing a party’s motion for summary judgment, the Court will grant the motion

if (1) there is no genuine issue of material fact, and (2) the mover is entitled to judgment

as a matter of law.91 This determination is made “in the light most favorable to the

opposing party.”92 A party moving for summary judgment “‘must “demonstrate the

absence of a genuine issue of material fact,” but need not negate the elements of the

nonmovant’s case.’”93 If the moving party satisfies its burden, “the non-moving party must

show that summary judgment is inappropriate by setting ‘forth specific facts showing the

existence of a genuine issue concerning every essential component of its case.’”94

However, the non-moving party’s burden “‘is not satisfied with some metaphysical doubt

as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by

only a scintilla of evidence.’”95

Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’”96 All reasonable factual

inferences are drawn in favor of the nonmoving party.97 However, “[t]he Court has no duty

to search the record for material fact issues. Rather, the party opposing the summary

91 FED. R. CIV. P. 56(a).

92 Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970) (citing United States v. Diebold, Inc., 369 U.S.

654, 655 (1962); 6 V. MOORE, FEDERAL PRACTICE 56.15(3) (2d ed. 1966)).

93 Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003) (quoting Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)); Celotex Corp. v. Catrett, 477 U.S. 317,

323-25 (1986).

94 Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (quoting Morris v. Covan World

Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).

95 Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995) (quoting Little, 37 F.3d at 1075).

96 Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

97 Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).

judgment is required to identify specific evidence in the record and to articulate precisely

how this evidence supports his claim.”98 “Conclusory allegations unsupported by specific

facts . . . will not prevent the award of summary judgment; ‘the plaintiffs [can]not rest on

his allegations . . . to get to a jury without any “significant probative evidence tending to

support the complaint.”’”99

B. Title VII Race Discrimination – Termination

To prove race discrimination under Title VII, a plaintiff must establish that he is (1)

“a member of a protected class” (2) “was qualified for the position” (3) “was subjected to

an adverse employment action”; and (4) “other similarly situated persons were treated

more favorably.”100 If a plaintiff establishes a prima facie case of discrimination, the

burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the

adverse actions taken. 101 If the defendant satisfies this burden of production, the burden

shifts back to the plaintiff, who must “offer sufficient evidence to create a genuine issue

of material fact ‘either (1) that the defendant’s reason is not true, but is instead a pretext

for discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is

only one of the reasons for its conduct, and another motivating factor is the plaintiff’s

protected characteristic (mixed-motive[s] alternative).’”102 Prongs one and three are

clearly satisfied here, and the Court will assume arguendo that Newton was qualified for

the position he held. However, the Court finds that Newton has failed to satisfy prong

four.

98 RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).

99 Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir. 1994)

(quoting Anderson, 477 U.S. at 249).

100 Septimus v. Univ. of Hous., 399 F.3d 601, 609 (5th Cir. 2005).

101 Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009)

102 Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004); see also Vaughn v. Woodforest Bank,

665 F.3d 632, 637 (5th Cir. 2011) (citing same in the context of a Title VII race discrimination case).

1. Similarly Situated Comparators

The law is clear that, “[i]n the context of a race discrimination claim, where the

plaintiff alleges that employees who were not members of the protected class received

more [favorable treatment], the plaintiff must come forward with specific evidence of

comparators who were similarly situated.”103 Courts within the Fifth Circuit define

“similarly situated” narrowly.104 In evaluating whether an alleged comparator is similarly

situated,

“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[.]”105

“Employees with different supervisors, who work for different divisions of a

company ... generally will not be deemed similarly situated.” The Fifth Circuit

has further explained, that “employees who have different work

responsibilities ... are not similarly situated.”106

IC concedes that Moman is White, that he also held the job title of Foreman, and

that Moman and Newton shared the same supervisor.107 However, IC contends Moman

is not a proper comparator for Newton because Moman did not commit similar infractions

under nearly identical circumstances.

In 2019, while Moman was driving a contractor’s truck not owned or insured by IC,

he accidentally backed up into his coworker Ronald Keasley’s personal vehicle.108 Gregr

103 Corley v. Louisiana ex rel. Div. of Admin., Office of Risk Mgmt, 816 F.Supp.2d 297, 316 (M.D. La.

2011)(citing Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 259–60 (5th Cir. 2009))(emphasis added).

104 See Horton v. G4S Secure Solutions (USA), Inc., No. 16-544-SDD-EWD, 2018 WL 1997535 at *5 (M.D.

La Apr. 27, 2018)(citing

Brown v. Bd. of Trustees Sealy Indep. Sch. Dist., 871 F.Supp.2d 581, 593 (S.D. Tex. 2012); see also Lopez

v. Kempthorne, 684 F. Supp. 2d 827, 856-57 (S.D. Tex. 2010)).

105 Id. (quoting Turner v. Kansas City S. Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012)(quoting Lee v. Kan. City

S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009))).

106 Id. (quoting Lee, 574 F.3d at 259 (citing Wyvill v. United Cos. Life Ins., 212 F.3d 296, 302 (5th Cir.

2000)).

107 Rec. Doc. 45-1, p. 2.

108 Newton Dep. at pp. 26, 29; Gregr Decl. ¶ 9.

was made aware of the incident,109 and it was treated as a routine car accident.110 The

incident caused minor property damage to the vehicles, and Keasley, the coworker whose

vehicle was hit, could still drive his vehicle.111 IC maintains this was not a workplace

violation subject to the Discipline Policy.112 Newton admitted that he was not present for

the incident and only knows about it based on what he has heard from other

nonsupervisory employees.113

In his Opposition, Newton does not offer any evidence to dispute IC’s

characterization of Moman’s incident. Rather, Newton offers his own subjective belief that

Moman’s “infraction” was “more egregious to Defendant” than his own.114 Newton also

argues that IC is incorrect in stating that Moman did not commit a rules violation under

the Discipline Policy. Newton contends Moman’s conduct should have been assessed

as a Level 2 or a Level 4 violation. A Level 2 violation is “serious and/or has the potential

to result in an accident or incident, damage equipment or cause injury,” and a Level 4

violation “involves conduct that is extremely serious enough to result in immediate

termination,” such as “making material false statements or concealing material facts

concerning matters under investigation.” Newton testified in his deposition that, following

Moman’s collision, Moman called his superiors, and they advised Moman to “tell the

insurance company he ran into some type of pole.”115

The Court finds that Newton has not satisfied the similarly situated comparator

prong. First, the infractions committed by Newton and Moman did not occur under “nearly

109 Gregr Decl. ¶ 9.

110 Newton Dep. at p. 26; Gregr Decl. ¶ 9.

111 Id. at p. 29; Gregr Decl. ¶ 9.

112 Gregr Decl. ¶ 9; Spears Decl. ¶ 8, Spears Decl. Ex. C.

113 Newton Dep. at p. 27.

114 Rec. Doc. 42, p. 2.

115 Newton Dep. at p. 140.

identical circumstances.” Newton acknowledges that the two “did not commit the exact

same offense,”116 and Newton testified that Moman’s incident did not involve a track

authority violation.117 The Court is unpersuaded that a rear-end collision, albeit occurring

at work but not on the track, is “nearly identical” to exposing an entire work crew to a

potential train collision. Second, even if Moman’s accident was a comparable infraction,

there is no summary judgment evidence before the Court that Moman had committed a

similar infraction within the twelve months prior to the rear-end collision. This also

distinguishes Moman’s discipline posture from Newton’s. Third, Newton offers hearsay

and rank speculation to support his suggestion that IC intended to “cover up” Moman’s

accident for insurance purposes, and Newton posits that this conduct should have

resulted in Moman being assessed a Level 4 violation by IC. It is not the role of this Court

to question the business judgment of IC in its assessment of infraction levels absent some

discriminatory animus. Even if there was competent summary judgment evidence to

support this purported insurance cover up, there is no evidence indicating that Moman’s

race played a factor in the decision.

Accordingly, because Newton has failed to point to a proper, similarly situated

comparator, he has failed to establish a prima facie case of race discrimination. Although

the Court need not go further, assuming arguendo that Newton could establish a prima

facie case of race discrimination, he has failed to overcome IC’s legitimate,

nondiscriminatory reason for his termination with pretext or mixed motive evidence

suggestive of race discrimination.

116 Rec. Doc. 42, p. 6.

117 Newton Dep. at p. 42.

2. Legitimate, Non-discriminatory Reason for Termination

IC presented a legitimate, non-discriminatory reason for terminating Newton.

Although Newton does not believe he should have been terminated, he does not dispute

that he committed the infractions or that the Discipline Policy called for his termination.

Because IC has presented a legitimate, non-discriminatory reason for Newton’s

termination, the burden shifts to Newton to demonstrate that IC’s proffered reasons are a

mere pretext for race discrimination or that race played some factor in his termination.

Newton does not specify whether he is proceeding under the mixed motives theory

or a pretext theory. Indeed, he fails altogether to address the burden-shifting framework

beyond his conclusion that he has presented a prima facie case of race discrimination;

thus, IC’s motion should be denied.118 The Court will nevertheless consider the record to

determine whether any evidence exists to support either theory.

3. Mixed Motives/Pretext

Under either theory, “throughout the shifting back and forth of “intermediate

evidentiary burdens” under this framework, ‘[t]he ultimate burden of persuading the trier

of fact that the defendant intentionally discriminated against the plaintiff remains at all

times with the plaintiff.’”119 When a Title VII case reaches the pretext stage of the analysis,

the only question remaining is whether there is a conflict in substantial evidence to create

a question for the factfinder.120

118 See Rec. Doc. 42, p. 11.

119 Barnett v. Louisiana Department of Health, No. , 2467877 (quoting Reeves, 530 U.S. at 143 (quoting

Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981))).

120 Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999) (citing Rhodes v. Guiberson

Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (noting that once a Title VII case reaches the pretext stage, the

sufficiency of the evidence test is applied)).

To establish pretext, “[Newton] must substantiate his claim through evidence

demonstrating that discrimination lay at the heart of [IC’s] decision.”121 Newton “must

rebut each non[-]discriminatory reason articulated by [IC].”122 Further, Newton must rebut

each reason by “produc[ing] substantial evidence of pretext.”123 “Evidence is substantial

if it is of such quality and weight that reasonable and fair-minded men [or women] in the

exercise of impartial judgment might reach different conclusions.”124 Newton may

establish pretext by: (1) showing disparate treatment or (2) showing that IC's proffered

explanation is false or unworthy of credence.125 Critically, “[w]hen conducting a pretext

analysis, the court is not to engage in second-guessing an employer's business

decisions.126 Anti-discrimination laws do not require an employer to make proper

decisions, only [non-discriminatory] ones.”127

While Newton did not point to any pretext evidence, the Court will assume he offers

the purported disparate treatment of Moman as evidence of pretext. This argument fails

for the reasons set forth above. Newton has offered no evidence to show that IC’s reason

for his termination was in any way motivated by race, or that IC’s explanation for his

termination was “false or unworthy of credence.” Indeed, he admits the infractions and

acknowledges the Discipline Policy.

Because Newton has failed to present a prima facie case of race discrimination,

and he has alternatively failed to submit substantial evidence of pretext or racial animus

121 Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002).

122 Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003).

123 Wallace v. Seton Family of Hospitals, 777 Fed. Appx. 83, 89 (5th Cir. 2019).

124 Id.

125 See Id.; See also Vaughn v. Woodforest Bank, 665 F.3d 632, 637-40 (5th Cir. 2011).

126 Culbert v. Cleco Corp., 926 F.Supp.2d 886, 894 (citing LeMaire v. La. Dept. Of Transp. & Dev., 480 F.3d

383, 391 (5th Cir. 2007)).

127 Id. (citing LeMaire, 480 F.3d at 391 (citing Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991))).

for IC’s legitimate, nondiscriminatory reason for his termination, IC’s Motion for Summary

Judgment shall be granted.

III. CONCLUSION

For the foregoing reasons, IC’s Motion for Summary Judgment128 is GRANTED.

Judgment shall be entered accordingly.

IT IS SO ORDERED.

Baton Rouge, Louisiana, this _1_2_th day of __D_e_ce_m__be_r_______, 2023.

S

________________________________

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

128 Rec. Doc. 39.