TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES.......................................................................... ii

STATEMENT REGARDING REHEARING EN BANC.............................. 1

ISSUES PRESENTED................................................................................... 1

STATEMENT OF THE CASE...................................................................... 2

ARGUMENT

I. The En Banc Court Should Not Decide Whether a Jury Could Find

That KCSR Disciplined Thomas and Turner More Severely Than

Hall and Schmitt Under “Nearly Identical” Circumstances. This

Fact-Bound Determination is Amply Supported by the Record and

Does Not Raise Any Issue of “Exceptional Public Importance”

or “Directly Conflict[]” with Other Authoritative Precedent.......................... 4

II. The En Banc Court Should Not Reevaluate Whether KCSR

Carried Its Burden of Production Under McDonnell Douglas.

The Opinion’s Assessment of the Record Evidence on this Point

Neither Raises An Issue of “Exceptional Public Importance”

Nor “Directly Conflicts” With Other Authoritative Precedent

and Is, Moreover, Well-Grounded.................................................................. 8

CONCLUSION............................................................................................. 15

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases Page(s)

Bina v. Providence College,

39 F.3d 21 (1st Cir. 1994)....................................................................... 15

Collins v. New York City Transit Authority,

305 F.3d 113 (2d Cir. 2002).................................................................... 14

Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978)................................................................................ 11

Lathem v. Department of Children & Youth Services,

172 F.3d 786 (11th Cir. 1999)................................................................. 12

Lee v. Kansas City Southern Railway,

574 F.3d 253 (5th Cir. 2009)............................................................. 4-8, 12

McDonald v. Santa Fe Trail Transportation Co.,

427 U.S. 273 (1976)................................................................................. 6

McDonnell Douglas v. Green,

411 U.S. 792 (1973).......................................................................... passim

Patrick v. Ridge,

394 F.3d 311 (5th Cir. 2004).................................................................... 9

Perryman v. Johnson Products Co.,

698 F.2d 1138 (11th Cir. 1983)................................................................ 9

Ramirez v. Gonzales,

225 Fed. App’x 203 (5th Cir. Jan. 30, 2007) (unpublished).................... 15

St. Mary’s Honor Center v. Hicks,

509 U.S. 502 (1993)................................................................................ 10

Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981).......................................................................... passim

Throgmorton v. U.S. Forgecraft Corp.,

965 F.2d 643 (8th Cir. 1992)............................................................... 12-13

United States v. American-Foreign Steamship Corp.,

363 U.S. 685 (1960)................................................................................. 5

Statutes and Rules

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et. seq........................................................................ 2

Federal Rule of Appellate Procedure 35(a).................................................... 1

Fifth Circuit Rule 35...................................................................................... 1

Fifth Circuit Internal Operating Procedure Rule 35............................... 1, 5, 10

STATEMENT REGARDING REHEARING EN BANC

Kansas City Southern Railway (“KCSR”) has petitioned this Court to rehear this factually-dense and legally-straightforward case en banc. Rehearing en banc is an “extraordinary procedure” intended only to correct “error[s] of exceptional public importance” or resolve “direct[] conflict[s]” between the decision of this Court and any prior Supreme Court, Fifth Circuit, or other Circuit precedent. See 5th Cir. I.O.P. 35; see also Fed. R. App. P. 35(a) (rehearing en banc “is not favored”); 5th Cir. R. 35(a) (“request for en banc consideration” is a “serious call on limited judicial resources”; standards for granting it are “rigid”). However, KSCR’s petition does not identify any such error or conflict. Instead, the alleged flaws KCSR complains of relate to matters best left to the panel. See 5th Cir. I.O.P. 35. The decision in this case breaks no new legal ground and the judgment of the Court is amply supported by the record. Thus, KCSR’s petition should be denied. [1]

ISSUES PRESENTED

(1) Should the Court rehear this case en banc to revisit the fact-bound determination that there is a genuine dispute as to whether plaintiffs created a prima facie case of race discrimination?

(2) Should the Court rehear this case en banc to reevaluate whether defendant carried its McDonnell Douglas burden of production, where the Opinion follows and applies well-established law on this issue?

STATEMENT OF THE CASE

The Commission filed this suit alleging that KCSR violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by disciplining Thomas Turner, an engineer, Lester Thomas, a conductor, and two other black employees more severely than their white comparators for the same incident and/or under nearly identical circumstances. (Turner intervened in the EEOC’s case.) The facts, viewed in the light most favorable to plaintiffs, include the following:

In 2002, Turner was relying on radioed instructions from his white conductor, Thomas Schmitt, to safely shove an engine backwards onto a spur track. The train crossed the derailer, causing little or no damage. Under KCSR rules, engineers and conductors are both responsible for the safe operation of a train. At the time of the accident, the disciplinary histories of the two men were comparable. Nevertheless, Turner was fired for the incident, while Schmitt was not disciplined in any way.

Shortly after the derail, Schmitt was suspended for sideswiping two hazardous material cars, causing substantial damage. The same KCSR officer investigated both incidents and opined that Schmitt and Turner were both responsible for the derail – Turner somewhat more so as engineer – and that the sideswipe was more serious than the derail. The union appealed Turner’s discharge internally. While KCSR managers Denise Brame and Kathleen Alexander upheld the decision to fire Turner, the Public Law Board (“PLB”) converted the discharge into a long suspension. See Op. 12-16.

In 2004, Thomas was working on a train driven by Joshua Hall, who is white, when the train failed to stop at a “dark signal” during an operations test. Both men were found responsible and fired for the same violations. Hall, however, was reinstated without explanation after 30 days (converting the discharge into a suspension). He and Thomas had similar disciplinary histories; in the previous four years, Thomas had five infractions to Hall’s four, of comparable seriousness. The investigating officer expressed surprise that only Hall was reinstated. See Op. 17-19.

Until the fall of 2008, KCSR maintained that the investigating officers were the decisionmakers in each of these incidents. After the officers testified in deposition that they were not involved in assessing any penalty (and, as noted above, did not wholly embrace the results), KCSR finally identified J.R. Thornell as the likely decisionmaker. Thornell, however, attested that he had no memory (and apparently no notes) regarding any of the challenged decisions. See Op. 21-22.

The district court granted KCSR’s motion for summary judgment on the grounds that plaintiffs failed to make out a prima facie case using circumstantial evidence under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and failed to demonstrate that defendant’s proffered explanation for the adverse actions was a pretext for race discrimination. On appeal, the panel majority reversed as to Turner and Thomas but affirmed as to the other two employees. Op. 1

In explaining the decision, Judge Dennis concluded that plaintiffs had established a prima facie case of race discrimination because the evidence was sufficient to support a finding that Turner and Thomas (both black) were fired while, under “nearly identical” circumstances, Schmitt and Hall (both white) were only suspended. Judge Dennis further found that there was no evidence explaining why Thornell (the alleged decisionmaker) had decided to fire Turner and Thomas, instead of simply suspending them as he had suspended Schmitt and Hall. Thus, Judge Dennis concluded, KCSR had failed to carry its burden of production under McDonnell Douglas. See generally Op. 1-28.

ARGUMENT

I. The En Banc Court Should Not Revisit Whether a Jury Could Find that KCSR Disciplined Thomas and Turner More Severely than Hall and Schmitt under “Nearly Identical” Circumstances. This Fact-Bound Determination is Amply Supported by the Record and Does Not Raise Any Issue of “Exceptional Public Importance” or “Directly Conflict[]” with Other Authoritative Precedent.

In its Petition, KCSR asks the En Banc Court to decide that a jury could not find that Hall is a proper comparator for Thomas or that Schmitt is a proper comparator for Turner. According to KCSR, the company did not discipline Thomas more severely than Hall or punish Turner more harshly than Schmitt under “nearly identical circumstances,” as required by this Court’s ruling in Lee v. Kansas City Southern Railway, 574 F.3d 253 (5th Cir. 2009). Pet. 12-14.

But this issue – whether, in this particular case, the two black employees and similarly-situated white employees were treated differently under “nearly identical circumstances” – is not an en banc-worthy issue. KCSR acknowledges that the Opinion recites the proper legal standard. See Pet. 12. And while KCSR criticizes the Opinion for “misapply[ing] this test[,]” its petition at best reflects KCSR’s disagreement with how Judge Dennis evaluated the relevant summary judgment evidence on this point. This fact-intensive inquiry is not the sort of weighty issue that demands the attention of this entire Court sitting en banc. See U.S. v. Am. Foreign S.S. Corp., 363 U.S. 685, 689 (1960) (“En banc courts are the exception, not the rule” and “are convened only when extraordinary circumstances exist that call for authoritative consideration and decision by those charged with the administration and development of the law of the circuit”); see also 5th Cir. I.O.P. 35.

Moreover, Judge Dennis’s Opinion reasonably applies well-settled law to the record facts. The “‘burden of establishing a prima facie case of disparate treatment is not onerous.’” Op. 7 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). As the Opinion notes, “[i]n work-rule cases” such as this one, a Title VII plaintiff may establish a prima facie case by showing that employees outside the victim’s protected class “were treated differently under circumstances ‘nearly identical’ to [the victim’s].” Op.7-8 (citation omitted). The Opinion explains, citing this Court’s ruling in Lee, that “‘[t]he 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 . . ., and have essentially comparable violation histories.’” Op. 8 (citing 574 F.3d at 260). Furthermore, the conduct for which the plaintiff was disciplined “‘must have been “nearly identical” to that of the proffered comparator who allegedly drew dissimilar employment decisions.’” Id. However, “‘nearly identical’ is not synonymous with ‘identical.”’ Id. Thus, for example, “‘[e]ach employee’s track record . . . need not comprise the identical number of identical infractions, albeit these records must be comparable.’” Op. 8-9 (citing 574 F.3d at 260-61) (adding that “similitude of employee violations” may turn on the “‘comparable seriousness’” of the offenses) (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11 (1976)).

Applying this standard, Judge Dennis reasonably concluded that the evidence, viewed in the light most favorable to plaintiffs, sufficed to support a finding that the relevant circumstances for each pair of employees were nearly identical. Judge Dennis rejected KCSR’s contention (a factual allegation KCSR reiterates in its Petition (Pet.14)) that Thomas had greater “culpability” than Hall. The Opinion points out that the disciplinary action reports for the incident “specify that Thomas and Hall committed the exact same infractions.” Op. 17. The Opinion also rejects KCSR’s argument that because Thomas had more infractions than Hall, their employment histories were not comparable. In the relevant timeframe, Thomas had five violations and Hall had four, of comparable seriousness. Op. 19. While the Petition describes Hall’s infractions as “relatively minor” (Pet. 14), the Opinion correctly states that “Hall was disciplined for an incident involving a sideswipe and another involving a derailment, whereas Thomas was cited for only one derailment.” Id. Further, KCSR’s appellate brief “made no argument about why Thomas’s and Hall’s infractions [were] incomparable.” Compare id. with KCSR Brief at 39-40 (arguing, mistakenly, that Thomas had six violations in the relevant timeframe).

Judge Dennis also reasonably found sufficient evidence to support a finding that Turner’s 2002 discharge for the derail could properly be compared to Schmitt’s 2002 suspension for the sideswipe, and that the two men “‘had essentially comparable violation histories.’” Op. 14. As the Opinion notes, before the derail, Turner had been reprimanded for deficient train inspection in 1982; suspended for a failed brake test in 1988; and fired for failing a random alcohol test in 1999 after which he was reinstated on condition that he not test positive again or refuse testing for the next five years. Id. Schmitt had been reprimanded and fired (later reinstated) for failing an alcohol test in 1988; reprimanded in 1990; and fired (later reinstated) for failing to follow directions in 1999. He was also involved in, but inexplicably not held responsible for, the derail for which Turner was fired in 2002. Op. 14-15.

KCSR does not dispute that the two incidents are comparable, or that the men had roughly the same number of offenses. Pet. 12. Rather, the company argues that their disciplinary histories are not factually comparable because Schmitt’s alcohol-related discharge predates Turner’s and Turner, unlike Schmitt, was reinstated on a “last-chance basis” following his 1999 discharge. Pet. 13. But as the Dissent acknowledged, the derail “did not implicate any of the reinstatement order’s terms.” Dissent at 37-38. After careful consideration, the Opinion concludes that, given its facial inapplicability, “the mere fact of the reinstatement order does not render Turner’s disciplinary history incomparable to Schmitt’s.” Op. 16.

The weight the Court should give the reinstatement order – or any other piece of evidence – does not raise an en-banc-worthy issue. On the contrary, this case resembles Lee, where this Court rejected KCSR’s argument that “a host of distinctions” between the plaintiff and his comparator rendered them dissimilar, and found the men and their circumstances sufficiently similar to withstand summary judgment. 574 F.3d at 261-62. In Lee, the Court also added that KCSR would be free on remand to argue the relevance of the distinctions to the jury. Here, as Judge Dennis pointed out (Op. 16), KCSR also has that option.

II. The En Banc Court Should Not Reevaluate Whether KCSR Carried Its Burden of Production Under McDonnell Douglas. The Opinion’s Assessment of the Record Evidence on this Point Neither Raises An Issue of “Exceptional Public Importance” Nor “Directly Conflicts” With Other Authoritative Precedent and Is, Moreover, Well-Grounded.

KCSR also asks the En Banc Court to determine whether it is entitled to summary judgment with respect to Turner and Thomas because, it alleges, the company did carry its McDonnell Douglas burden of production. KCSR purports to find a number of errors on this issue in the Opinion. None of these purported errors warrants en banc consideration, or, indeed, has merit.

KCSR first asserts that although the burden of production should, in its view, be “exceedingly light,” the panel majority erroneously required it to “demonstrate” that its proffered reasons “actually motivated” the “KCSR decisionmaker.” See Pet. 5-6 (citing Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir. 1983)). Although a defendant need only to raise a “triable issue of fact,” KCSR’s argument goes, the Opinion requires the company to bear the burden of proof. Id.

KCSR points to nothing in the Opinion suggesting that the Court misallocated the burden of proof. On the contrary, the Opinion correctly states the legal standard. It explains that “[w]hile 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.]’” Op. 21 (quoting Burdine, 450 U.S. at 254-55). Further, the decision itself does not require KCSR to persuade the court at summary judgment of anything other than the absence of a disputed issue of fact. See Op. 12, 19. Nor does the Opinion suggest that on remand KCSR could prevail only by convincing a jury that its proffered reasons were true. Rather, the majority held merely that KCSR was not entitled to summary judgment as to Turner and Thomas and that the plaintiffs could proceed to prove their claims before a jury. That result is completely consistent with this Court’s case law. See Patrick v. Ridge, 394 F.3d 311, 316 (5th Cir. 2004) (specifying that the case should go to trial where an employer fails to meet its burden of production).

KCSR then argues that the Court “impermissibly ignored or discounted record evidence that was more than sufficient to raise a triable issue of fact” as to the reasons for its decisions. Pet. 7. According to the company, it carried its burden with evidence showing that Turner and Thomas violated operational rules, and discharge was one option for disciplining such violations. Indeed, KCSR states, it adduced “no less than fourteen separate pieces of evidence” supporting these assertions. Id. at 7-10 (describing evidence). The Court erred, the company argues, in demanding more.[2]

On the contrary, the Opinion applies “correct precedent to the facts of the case,” relying on well-settled Supreme Court law. As Judge Dennis explained, once the plaintiff has created a prima facie case and thus raised an inference of discrimination, the defendant must produce evidence to “rebut” that inference. Op. 20-21 (quoting Burdine, 450 U.S. at 254). That is, the defendant must proffer evidence “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.’” Id. at 21 (alternations in Opinion) (citing Burdine, 450 U.S. at 254-56; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 516 (1993)).

Applying that standard, Judge Dennis reasonably concluded that KCSR’s evidence – showing only that Turner and Thomas were fired because they violated certain rules – did not “meet” the plaintiffs’ prima facie case or “rebut” the resulting inference of discrimination. See Op. 20-27. A prima facie case created using the formulation this Court set forth in Lee already assumes that the defendant disciplined the employees for violating the cited rules. And it also includes evidence that other employees were disciplined less severely – even though they violated the same or nearly identical rules. The relevant question thus is not why discipline of some sort was imposed – what KCSR’s evidence might explain – but rather why disparate discipline was meted out. Cf. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (stating that the “central focus of the inquiry in a case such as this is always whether the employer is treating some people less favorably than others because of their race”) (citation omitted). Unless a defendant produces evidence to answer that question, it has not “explained” the challenged decision.[3]

Here, the plaintiffs’ prima facie case raised an inference that KCSR treated Turner and Thomas less favorably than Schmitt and Hall because of race. Judge Dennis therefore reasonably concluded that, to satisfy its burden of production, KCSR had to explain why it chose to terminate the two men but to suspend Schmitt and Hall, when they had violated the same or nearly identical rules. Since it did not explain this matter, Judge Dennis reasonably concluded that the company did not meet its burden of production.

Without explaining why its evidence rebuts the prima face case plaintiffs created, KCSR suggests that the requirement that it explain the disparate treatment essentially breaks new ground. Pet. 6; see also Dissent at 29, 35. But this aspect of the Opinion is also unremarkable. As noted above, it follows directly from Supreme Court case law.

Moreover, Courts – including this one – have reached the same conclusion. Where, as here, a plaintiff’s prima facie case is based on a showing of disparate treatment, courts have held that defendants must explain the difference in treatment in order to carry their burden of production. See, e.g., Lee, 547 F.3d at 262 (indicating that on remand KCSR could carry its burden of production by proffering “a legitimate nondiscriminatory explanation for the disparate results” in Lee’s and his comparator’s cases) (emphasis added); Lathem v. Dep’t of Children & Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999) (holding that “[o]nce a plaintiff establishes a prima facie case in a disparate discipline action, the employer must provide a specific, legitimate nondiscriminatory reason for disciplining the employees differently”); Throgmorton v. U.S. Forgecraft Corp., 965 F.3d 643, 646 (8th Cir. 1992) (ruling that to rebut the presumption raised by plaintiff’s prima facie case of sex discrimination, the employer had to explain why it fired the female plaintiff rather than reassign her, as it would have for male employees under similar circumstances).

KCSR, correctly, does not argue that its evidence explains the difference in treatment between Thomas and Hall or Turner and Schmitt. Rather, the company initially suggests that Thornell’s Declaration states that the termination decisions were based on a review of the transcripts of the investigatory hearings, the findings of the hearing officers, the discipline records, and KCSR’s progressive discipline policy. Pet. 4. This overreads the Declaration, but even under this interpretation, the Declaration says nothing about why Thornell chose not to suspend Turner and Thomas as he had suspended Schmitt and Hall. In fact, as the company concedes (Pet.8) and the Opinion also notes (Op.21-24), by the time KCSR correctly identified Thornell as the likely decisionmaker, he had no memory (or notes) regarding these decisions. Indeed, he acknowledged that he might even have delegated the decisionmaking to his assistant, who was by then deceased.

The only documentary evidence of the decisions – the termination letters KCSR sent to Turner and Thomas — likewise does not explain Thornell’s decision to impose disparate discipline. The letters “are not signed by Thornell,” “do not mention the employees’ disciplinary histories,” and “do not give any indication that they reflect Thornell’s reason for choosing to dismiss the employees, as opposed to merely suspending them.” Op. 25.

KCSR challenges the Opinion’s focus on Thornell’s reasoning since, according to the company, he was only the “initial” decisionmaker. KCSR argues that, because, in its view, Thornell’s decision was “independently analyzed” by Brame and Alexander, as well as the PLB, their decisions were also “probative of KCSR’s reasons.” Pet.9-10; cf. Dissent at 36 (discounting importance of Thornell’s Declaration). As support, KCSR cites cases stating that the decision of an “independent” adjudicator is “highly probative of the absence of discriminatory intent.” Pet. 9-10 (citing cases).

As the Opinion points out (Op.26), this argument pertains only to Turner, since there is no such evidence with respect to Thomas. But the argument and cited cases are also inapt even as to Turner. In Collins v. NYCTA, 305 F.3d 113 (2d Cir.2002), for example, the plaintiff challenged his discharge to an arbitrator, who found the discipline justified; he then challenged the discharge in federal court. The Court of Appeals concluded that the arbitrator’s decision was highly relevant as to whether the discharge was discriminatory. Id. at 119. In contrast, here, the question before the so-called independent adjudicators — Brame, Alexander, and the PLB — was whether Turner could be terminated for violating the specific rules. The question before the Court, however, is why Turner was terminated, rather than suspended, as Schmitt was for comparable conduct. Brame, Alexander, and the PLB were never asked that question, and their decisions do not contain the answer. Thus, whether or not the decisions are admissible, they shed little light of the question of why Turner was treated less favorably than his white comparator under nearly identical circumstances.

Finally, the company attempts to manufacture an en-banc-worthy issue by arguing that the ruling here creates an intra- and inter-circuit conflict, citing cases it reads as requiring defendants to produce “far less evidence” to meet their McDonnell Douglas burden. See Pet. v-vi; 10-11 (citing, e.g., Ramirez v. Gonzales, 225 Fed. App’x 203, 206-07 (5th Cir. Jan. 30, 2007) (unpublished); Bina v. Providence College, 39 F.3d 21, 25-26 (1st Cir. 1994)). This compares apples and oranges. KCSR does not assert that those cases are factually indistinguishable from this case. And just because one court finds specific evidence sufficient to rebut a prima facie case under one set of facts does not mean another court creates a circuit split anytime it finds altogether different evidence insufficient in a wholly unrelated case.

CONCLUSION

For the foregoing reasons, KCSR’s petition for rehearing en banc should be denied.

Respectfully submitted,

P. DAVID LOPEZ /s/ Barbara L. Sloan__________________

General Counsel Barbara l. Sloan

Attorney

LORRAINE C. DAVIS EQUAL EMPLOYMENT OPPORTUNITY

Acting Associate General Counsel COMMISSION

131 M Street, N.E., 5th Floor

DANIEL T. VAIL Washington, DC 20507

Acting Assistant General Counsel (202) 663-4721

barbara.sloan@eeoc.gov

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Response of the Equal Employment Opportunity Commission to Defendant’s Petition for Rehearing En Banc was filed on June 28, 2012, by electronic means using the Fifth Circuit Court of Appeals’ CM/ECF system. All participants in the case are registered CM/ECF users, and service will be accomplished by the Court’s CM/ECF system.

/s/ Barbara L. Sloan___________

Barbara L. Sloan

[1] On June 22, 2012, the panel issued a revised ruling. Judge Dennis authored the opinion (“Opinion” or “Op.”), Judge Southwick concurred in the result only (Op. 1*), and Judge Owen concurred in part and dissented in part. Dissent at 29-39.

[2] As framed by the company, this argument does not present an issue worthy of en banc review. Alleged errors in “the facts of the case (including the sufficiency of the evidence)” or in “the application of the correct precedent to the facts of the case” are not matters for rehearing en banc. 5th Cir. I.O.P. 35.

[3] This burden is not heavy. As the Supreme Court observed, “we know from our experience that more often than not people do not act in a totally arbitrary manner without any underlying reasons, especially in a business setting.” Furnco, 438 U.S. at 577. Thus, it is not unfair to expect the defendant – who is in the best position to relay its alleged reasons – to produce some evidence explaining the disparity.