The Fifth Circuit issued a decision in the case of Turner v. Kansas City Southern Railway Co., No. 09-30558, 2012 US App. LEXIS 6079 (5th Cir. 3/26/12). See decision. The opinion discusses the requirements for a circumstantial case of discrimination which relies on comparators. Four Kansas City employees sued their employer for discrimination under Title VII. The district court granted summary judgment regarding all four African-American plaintiffs. The plaintiffs had been fired for offenses, which, they alleged, were not appropriate for termination - when compared to non-black employees. The Court of Appeals overturns summary judgment for Thomas Turner and Lester Thomas, but sustains summary judgment for the other two plaintiffs.
The majority opinion, written by Judge Dennis, looked at the available evidence in detail. The opinion notes that when compared to a white co-worker, Thomas Turner was treated differently. Mr. Turner was ostensibly fired for causing a derailment. But, a white co-worker caused a sideswipe incident. The white co-worker received a 45 day suspension, while Plaintiff Turner was fired. The court noted that the correct standard when comparing to co-workers is not that the co-workers are "identical," a virtually impossible standard. But, said the opinion, the proper standard is that the co-workers be "nearly identical." The person to whom Thomas Turner compared himself was very close indeed to Mr. Turner's job situation. As the court noted, at the summary judgment stage, the issue is not whether the two co-workers are good comparators. The issue, is rather, whether they are close enough that the jury should decide the issue. The employer still has the opportunity at trial to argue the white co-worker is not "nearly identical" to Thomas Turner's situation.
The majority opinion also focused on the inability of the employer to identify the person who decided that the four plaintiffs would be terminated. For four years, Kansas City had said the decision maker was the two men who investigated the derailment. They two investigators decided that Thomas Turner should be fired, according to the employer. But, after four years and three requests for admissions by the plaintiff, the employer responded that the General Superintendent (GS) made the decision to terminate Plaintiff Turner. The employer then provided an affidavit by the GS in which he said that he had made hundreds of termination decisions in his time with Kansas City Southern and he could not recall any one of them. He was not certain he had made the decision to terminate Thomas Turner and he could not recall what the reasons for choosing termination might have been. In his affidavit, he even said he might have delegated the decision to an Assistant Superintendent. The Assistant Superintendent, accused of racist comments, had passed away. So, neither the General Superintendent nor the Assistant Superintendent were available to explain why they decided to terminate Mr. Turner, instead of some lesser punishment.
Indeed, the investigator of the derailment actually said the opposite. He testified in deposition that he did not believe the derailment incident was sufficient cause for termination.
Under the burden shifting formula of McDonnel-Douglas, the employer could not then rebut the employee's claim of Title VII discrimination. If the decision-maker cannot recall the decision to terminate, then no one is available to explain why Mr. Turner was fired and not simply suspended. The defense appears to have responded that there were subsequent internal appeals which found that Mr. Turner deserved some punishment. But, again, those appeals actually found that termination was not warranted.
The court did not say so explicitly, but it must have been troubled by the last minute "memory" regarding who decided to terminate Mr. Turner. There is some caselaw holding that changing explanations for a termination suggest some dissembling has occurred. If there is any question about veracity, then the issue should be decided by the jury.
The interesting thing about this decision is that one of the three judges dissented regarding the Turner portion of the case. Judge Owen presents the more conservative or pro-employer view. She argues that the majority opinion places a heavy burden on the employer. In her view, the majority opinion is asking the employer to provide too much evidence at the rebuttal stage. She says the employer does not have the burden of rebutting pretext. She would keep that burden on the employer. But, the problem with her analysis is that this opinion addresses summary judgment, not trial. The judge should not be trying to arrive at some actual "truth" during summary judgment. Rather, the judge should simply be weeding out those cases where the plaintiff lacks the evidence to show actual factual issues.
In the Army, we have an expression known as "ground truth." In a typical maneuver unit, the plans for a battle or for some movement are drawn up by a Battalion or Brigade staff far from the ground itself. The staff bases the plans on maps, maps which almost always omit important details. The lowest level unit, the company must execute those plans and make them work. The first thing the company must do is look at the actual ground on which the movement or action will occur. Often, the Captains, the sergeants who make the company run must adjust the battle plans based on the actual ground they encounter. We call that the "ground truth." Judge Owen is trying to arrive at the ground truth regarding the claimed discriminatory event.
But, that is not her job. Arriving at the actual "truth" of some event is the province of the jury. Summary (or quick) judgment is a poor vehicle indeed for arriving at the "ground truth" of an event.