Reed v. Kansas City Southern Railway Company

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Terence Reed,
Plaintiff,
v.
Kansas City Southern Railway
Company,
Defendant.
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Civil Action H-24-1795
MEMORANDUM AND RECOMMENDATION
This employment discrimination case has been referred to
the undersigned magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1). ECF No. 79. Pending before the court are: Defendant’s
Motion for Summary Judgment, ECF No. 74; Defendant’s Motion
for Sanctions, ECF No. 80; Plaintiff’s Motion for Leave to
Supplement, ECF No. 86; Plaintiff’s Motion for Leave to File
Surreply, ECF No. 89; and Plaintiff’s Motion to Strike, ECF No. 91.
The court recommends that Defendant’s Motion for
Summary Judgment, ECF No. 74, be GRANTED. Defendant’s
Motion for Sanctions, ECF No. 80, is DENIED; Plaintiff’s Motion
for Leave to Supplement, ECF No. 86, is GRANTED in part and
DENIED in part; Plaintiff’s Motion for Leave to File Surreply,
ECF No. 89, is DENIED; and Plaintiff’s Motion to Strike, ECF
No. 91, is DENIED as MOOT.
1. Background
In 2003, Plaintiff Terence Reed was hired to work as a
conductor for a subsidiary of Defendant Kansas City Southern
Railway Company (KCSR). Reed Depo., ECF No. 74-5 at 6:1–24.
Reed remained in that position until KCSR terminated him on
February 4, 2022. ECF No. 74-27 at 2. After appealing KCSR’s
United States District Court
Southern District of Texas
ENTERED
May 01, 2026
Nathan Ochsner, Clerk
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termination decision, Reed was later reinstated to his position
without backpay. ECF No. 74-29 at 4.
Reed is a Black man who now brings claims against KCSR
for discrimination, retaliation, and a hostile work environment
based on his race. Reed also brings claims related to interference
with leave and retaliation in violation of the Family Medical Leave
Act (FMLA).
Reed was a conductor for KCSR. An Assistant
Superintendent for KCSR, Kerry Douglas, explains in a
declaration that conductors work in and around moving equipment
such as trains that may weigh several thousand tons and carry
hazardous materials. ECF No. 74-6 at 2. As part of his job duties,
Reed was required to know, understand, and follow the General
Code of Operating Rules (GCOR), KCSR’s General Safety Rules
(GS Rules), and the Train and Engine Safety Rule Book. Id. at 3.
Relevant here, the rules prohibit employees from needlessly
blocking (“fouling”) the train tracks and require employees to have
personal cell phones powered off and stowed out of sight in many
situations. ECF No. 74-7 at 3 (GCOR 2.21); ECF No. 74-48 at 6
(GS-6).
The court turns to the events that KCSR argues led to Reed’s
termination. On January 10, 2022, Vittorio Ramirez, the Director
of International Border Operations in Laredo, Texas, was
monitoring a video feed of a crew change. ECF No. 74-21 at 2–3.
While watching, Ramirez observed Reed “using and speaking on
his personal cell phone while standing directly in front of a
locomotive between tracks during a crew swap[.]” Id. at 3.
According to Ramirez, such conduct violated multiple safety rules.
Id. at 2–3. Ramirez contacted Reed’s supervisors, Kerry Douglas
and David O’Neal, to inform them of Reed’s conduct. Id. at 3.
The next day, January 11, 2022, Ramirez removed Reed
from service pending a formal hearing regarding the incident. ECF
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No. 74-21 at 2–3. That same day, Reed complained to KCSR’s
EthicsPoint hotline that the removal was wrongful. ECF No. 74-22
at 2–4. KCSR began an investigation into Reed’s complaint. ECF
No. 74-23.
On January 28, 2022, KCSR held a hearing about the
January 10 incident and Reed’s subsequent removal from service.
ECF No. 74-25. The hearing was conducted pursuant to a collective
bargaining agreement between Reed’s union and KCSR. Id. at 4.
At the hearing, Reed stated that he did not intend to block the
tracks while on his phone. Id. at 25–26. Reed explained that he
had received a message from his wife about a family emergency
and Reed spoke with her briefly while fouling the tracks. Id.
After the hearing, Reed’s Manager, O’Neal, “concluded that
(1) Mr. Reed was observed using his personal electronic device
while fouling the tracks near a locomotive when GCOR 2.21
prohibits use of an electronic device when a crewmember is fouling
a track and (2) Mr. Reed needlessly fouled a track in violation of
GS-6.” ECF No. 74-26 at 2–3. O’Neal determined that Reed’s
dismissal was appropriate and consistent with the company’s
practice for employees who violate GCOR 2.21. Id. at 2.
KCSR sent Reed a letter on February 4, 2022, dismissing
Reed from his position. ECF No. 74-27. Reed appealed the decision
consistent with union procedures. The board on appeal reinstated
Reed without backpay and stated that the decision accounted for
“the serious nature of the demonstrated rule violations . . . [and]
the mitigating circumstances presented for this long-term
employee[.]” ECF No. 74-29 at 4. Reed returned to work in October
2022. ECF No. 74-30; ECF No. 74-31.
After Reed’s termination and prior to Reed’s reinstatement,
on February 24, 2022, Reed filed a Charge of Discrimination with
the Equal Employment Opportunity Commission. ECF No. 74-32.
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In his years with KCSR, Reed raised various complaints
related to race-based treatment. In September 2015, Reed wrote a
letter complaining about supervisor Sean McGuire’s inappropriate
and discriminatory conduct. ECF No. 74-8. McGuire resigned from
KCSR in January 2017. ECF No. 74-9.
In 2020, Reed filed a complaint against Cody Poland alleging
that Polland engaged in discriminatory and harassing behavior
based on race. ECF No. 74-13. Reed claimed that Poland
disproportionately failed people of color on operational tests and
that Poland wore a shirt and mask with offensive “cross guns” on
them. Id. at 2. KCSR investigated Reed’s complaints. KCSR did
not find any facts showing that Poland’s mask and shirt were worn
as a form of intimidation. Id. at 6. KCSR found that Reed’s
allegation that Poland only failed people of color was
unsubstantiated. Id. at 5–6.
KCSR’s analysis of Poland’s operational tests shows that,
from January 2022 through October 2020, although Black and
white employees made up similar percentages of the workforce,
Poland performed more than double the amount of operational
tests on white employees. ECF No. 74-51. However, of the
operational tests Poland performed, Poland gave “failures” 6.54%
of the time to Black employees, 0.29% of the time to white
employees, and 1.2% of the time to Hispanic employees. Id. Of
those thirteen “failures,” ten were issued to Black employees, two
were issued to Hispanic employees, and one was issued to a white
employee. Id.
At some time in 2021, KCSR executive John Orr visited the
train yard. ECF No. 74-5 at 18:2–25. In a group of people, Orr
singled out Reed and asked to see Reed’s boots. Id. at 18:2–25. Orr
stated that he had never seen boots like Reed’s and asked whether
they were steel-toed. Id. When Reed stated that his boots were
steel-toed, Orr stomped on Reed’s foot. Id. Orr did not check
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anyone else’s boots. Id. When Orr interacted with Reed, Reed was
the only Black person in the room. Id. at 20:9–21.
Relevant to Reed’s FMLA claims, after Reed’s
reinstatement, he was approved for FMLA leave (1) intermittently
from November 8, 2023 through November 7, 2024, ECF No. 74-35
at 2; (2) continuously from January 1, 2024 through January 7,
2024, ECF No. 74-36 at 2; and (3) intermittently from October 15,
2024 through October 14, 2025, ECF No. 74-38.
Effective December 1, 2023, KCSR implemented a policy
that certain employees “who book off sick or unpaid personal leave
on two or more available work days in the calendar month will be
subject to attendance review for that month.” ECF No. 74-41 at 4.
Under the policy, such employees may be subject to disciplinary
action for taking sick or personal leave (not FMLA leave) on two or
more days per month. Id.
The parties appear to agree that Reed called out sick on
April 11, 2024, and took off a day for personal time on April 27,
2024. ECF No. 74 at 12; ECF No. 86-2 at 19–20. KCSR
subsequently began an investigation related to Reed’s two
absences in April. ECF No. 74-43. A few months later, on July 22,
2024, Reed signed a waiver form acknowledging that he failed to
protect his employment obligations as to the absentee policy. ECF
No. 74-44. In his deposition, Reed testified that he had a doctor’s
note for his April 2024 absences and that he should not have signed
the waiver. ECF No. 74-20 at 160:1–8.
A few months later, in September 2024 after completing a
review of Reed’s updated medical file, KCSR temporarily removed
Reed from service in September 2024 because its medical team
determined that Reed was not fit to work the usual duties of his
safety critical position. ECF No. 74-39 at 74–75. Reed was later
placed back in service after providing additional medical records.
The court turns to the parties’ arguments.
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2. Plaintiff’s Motion for Leave to Supplement
Response to Motion for Summary Judgment
Before turning to the merits of Reed’s claims, the court first
considers procedural irregularities and Reed’s requests to
supplement his response to KCSR’s summary judgment motion.
ECF Nos. 86, 82-1. KCSR filed its Motion for Summary Judgment
on October 1, 2025. ECF No. 74. Reed’s response was due 21 days
later, on October 22. Reed filed his response one day late, on
October 23. ECF No. 82. Reed included in his response a document
titled “Initial Memorandum of Points and Authorities in Support
of Plaintiff’s Opposition to Defendants’ [sic] Motion for Summary
Judgment.” Id. at 6. Attached to that filing, Reed included a motion
requesting leave to (1) file his response one day late and (2) “file a
short supplemental brief and exhibits within seven [] days to
complete the evidentiary record.” ECF No. 82-1 at 1. KCSR
opposes Reed’s request.
Reed’s counsel stated that, due to a time zone difference, he
incorrectly believed that the response was due on October 23. ECF
No. 82-1 at 1–2; ECF No. 83. Counsel explained that “[t]he
convergence of the late-evening filing, the time-zone
miscalculation, and this unforeseen family medical crisis caused a
brief, good-faith one-day delay.” ECF No. 82-1 at 2.
The court has discretion to allow untimely responses where
“the party failed to act because of excusable neglect.” Fed. R. Civ.
P. 6(b)(1). The court finds that Reed’s one day delay was due to
excusable neglect. Reed’s response filed one day late is accepted as
filed and the court relies on the response in its summary judgment
analysis.
As to the “supplement” filed seven days later, the analysis is
different. Reed initially stated that the additional document would
be limited to a “supplemental brief attaching supporting exhibits”
and no more than ten pages. ECF No. 82-1. In fact, the
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“supplement,” which is more than twenty pages, is a resubmission
of the response with additional citations and argument. ECF
No. 86-2. It was filed after KCSR filed its reply and includes new
arguments on causes of action that Reed could have, but did not,
address in his response. Compare, e.g., ECF No. 82 with ECF
No. 86-2 (addressing FMLA claims only in his “supplement”).
Because the document, ECF No. 86-2, was filed after KCSR’s
reply and because it raises new arguments that Reed did not raise
in his response, the briefing is now before the court in a highly
irregular posture. Reed did not seek an extension of time to file his
response, which is the usual course of action in a situation such as
this. It appears that Reed filed his “initial” response as a
placeholder in lieu of seeking additional time.
Although district courts occasionally allow a supplement
under similar circumstances, it appears to the court that the
general weight of authority denies requests to file supplemental
responses, especially if the “supplement” is filed after the movant
filed a reply. See, e.g., Sessums v. Shell USA, Inc., No. CV 24-104,
2025 WL 1115633, at *3 (E.D. La. Apr. 15, 2025) (denying
Plaintiffs’ motion to file supplemental opposition to Defendant’s
summary judgment motion); Khan v. City of Houston, No. 23-CV-
00998, 2024 WL 4829496, at *1 n.1 (S.D. Tex. Nov. 19, 2024)
(granting the motion to supplement when the supplemental
response was identical to the original response), appeal dismissed,
No. 24-20564, 2025 WL 1694903 (5th Cir. Mar. 20, 2025); Holland
v. Keesler Fed. Credit Union, No. 15-CV-306, 2017 WL 2231449,
at *3–4 (S.D. Miss. May 22, 2017); Hunt v. Brooks Run Min. Co.,
LLC, 51 F. Supp. 3d 627, 635–37 (S.D.W. Va. 2014), aff’d, 610 F.
App’x 340 (4th Cir. 2015).
Here, substantial reasons exist to deny Reed’s request for
leave to supplement. The court allowed Reed’s original response,
which was filed late. It would be unfair to allow Reed to circumvent
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regular court procedures to essentially file a sur-reply and present
new, untimely arguments to the court after KCSR filed its reply.
On the other hand, it does not appear to the court that the
substantive analysis is materially affected by Reed’s supplemental
filing.
To prevent needless future litigation and objections, and
because doing so does not change the result in this case, Reed’s
Motion for Leave to Supplement is GRANTED in part and
DENIED in part. To the extent that Reed provides the court with
additional evidentiary citations in his “supplement,” the court will
consider that evidence in its analysis. The court will not consider
new arguments that were not presented in the first response. The
court cautions Reed’s counsel to seek an appropriate extension of
time in the future.
3. Legal Standard
“Summary judgment is appropriate only if, viewing the
evidence in the light most favorable to the nonmovant, ‘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.’” Davenport
v. Edward D. Jones & Co., 891 F.3d 162, 167 (5th Cir. 2018)
(quoting Fed. R. Civ. P. 56(a)). No genuine issue of material fact
exists if a rational jury could not find for the nonmoving party
based on the complete record. McMichael v. Transocean Offshore
Deepwater Drilling, Inc., 934 F.3d 447, 455 (5th Cir. 2019) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)).
Initially, “[t]he movant bears the burden of identifying those
portions of the record it believes demonstrate the absence of a
genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401
F.3d 347, 349 (5th Cir. 2005) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322–25 (1986)). If this burden is met, the nonmovant
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must then “go beyond the pleadings,” using competent summary
judgment evidence to cite “specific facts” showing a genuine issue
for trial. McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 357
(5th Cir. 2017) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d
536, 540 (5th Cir. 2005)).
The court reviews all evidence and reasonable inferences in
the light most favorable to the nonmoving party. See Tolan v.
Cotton, 572 U.S. 650, 657 (2014) (quoting Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970)). The court, however, does not have
a duty “to search the record for material fact issues.” RSR Corp. v.
Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010) (“Rather, the party
opposing the summary judgment is required to identify specific
evidence in the record and to articulate precisely how this evidence
supports [the] claim.”). Although the court needs to consider only
the cited evidence, it is allowed to consider other materials in the
summary judgment record. Fed. R. Civ. P. 56(c)(3).
4. Summary Judgment Analysis
In his response, Reed has not clearly identified specific
evidence in the record nor articulated precisely how that evidence
supports his claims. The court could grant the pending motion for
that reason alone. Instead, the court has endeavored to fairly
consider the evidence presented to it. The court considered
evidence Reed cited in his “supplement,” ECF No. 86-2; see also
Fed. R. Civ. P. 56(c)(3) (allowing consideration of evidence in the
record that is not cited in the parties’ briefs).
Reed brought claims for race discrimination, retaliation, and
hostile work environment under Title VII of the Civil Rights Act of
1964 (Title VII), Chapter 21 of the Texas Labor Code (known as
the Texas Commission on Human Rights Act, “TCHRA”), and 42
U.S.C. § 1981. The law governing claims under these three
statutes is “functionally identical.” Shackelford v. Deloitte &
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Touche, LLP, 190 F.3d 398, 403 n.2 (5th Cir. 1999). Accordingly,
the court relies on precedent from cases interpreting all three
statutes in its analysis.
Direct evidence of discriminatory or retaliatory intent is
rare. See Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir.
2005). When based on circumstantial evidence, claims for
discrimination and retaliation are analyzed under the burden-
shifting approach outlined in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Saketkoo v. Adm’rs. of Tulane Educ. Fund,
31 F.4th 990, 997, 1000 (5th Cir. 2022) (applying the burden-
shifting approach to retaliation and discrimination claims). This
approach is meant to help the court navigate motions for summary
judgment and provides the order and allocation of proof to ensure
that Title VII’s purposes are carried out when direct evidence of
discrimination is not available, which is usually the case.
McDonnell Douglas Corp., 411 U.S. at 800–01.
The burden-shifting approach places the initial burden on
the plaintiff to establish a prima facie case of discrimination or
retaliation. See Saketkoo, 31 F.4th at 999. If the plaintiff meets the
initial burden, the defendant must respond by providing a
legitimate, nondiscriminatory reason for its action. Id. If the
defendant meets its burden, the employee must produce evidence
showing that the proffered reason is pretextual. Id.
A. Discrimination
To establish a prima facie case of race discrimination with
circumstantial evidence, Reed must show that he (1) is a member
of a protected group, (2) was qualified for his position, (3) was
subject to an adverse employment action, and (4) was replaced by
someone outside his protected group or was treated less favorably
than other similarly situated employees outside his protected
group. Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 339 (5th Cir.
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2021). KCSR argues that Reed cannot establish the second or
fourth elements of his case. ECF No. 74 at 15.
To show that employees are similarly situated, “[t]he
plaintiff’s conduct that drew the adverse employment decision
must have been ‘nearly identical’ to that of the proffered
comparator[.]” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th
Cir. 2009). Nearly identical does not mean identical. Id. The
similarity 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.” Id. To be similarly situated, the comparator
generally must have held the same job or job responsibilities as the
claimant and must have shared the same supervisor or had the
same decisionmaker determine their employment status.
Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017).
Employees may not be similarly situated if their adverse
employment actions occurred too “removed in time” from each
other. See Arceneaux v. Metro. Life Ins. Co., 481 F. App’x 196, 198–
99 (5th Cir. 2012) (finding that an employee who suffered an
adverse employment action two to three years before plaintiff was
not similarly situated); Martinez v. Greer, No. 24-CV-17, 2025 WL
2976753, at *7 (W.D. Tex. Oct. 21, 2025). In cases where
discrimination is based on disparate discipline among employees,
if the difference between the plaintiff’s conduct and that of the
alleged comparator accounts for the difference in treatment
received from the employer, the employees are not similarly
situated. Lee, 574 F.3d at 260; AutoZone, Inc. v. Reyes, 272 S.W.3d
588, 594 (Tex. 2008).
Reed has not met his burden to show his prima facie case of
discrimination. Reed argues that he “identified two comparators,
white conductor Michael Mikeska and Hispanic conductor Roberto
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Ramos, who violated the same rule, GCOR 2.21, but were merely
suspended instead of terminated.” ECF No. 82 at 12–13.
The cited evidence does not show that Mikeska or Ramos
were similarly situated to Reed. The discipline history for Mikeska
and Ramos shows that they were each suspended for “failing to
have a personal electronic device turned off or stowed.” ECF
No. 74-49 at 3–4, 6. Mikeska and Ramos’s violations each occurred
in 2015 and 2017, respectively. Id. Reed’s conduct occurred in
January 2022, at least four and a half years later.1 Mikeska and
Ramos’s conduct and adverse employment actions are too removed
in time to be similarly situated to Reed.
Also, Ramos did not share same position as Reed and was
based in a different location.2 ECF No. 74-49 at 5 (stating that
Ramos was an engineer whose home terminal was in Laredo,
Texas). There is no evidence that Mikeska and Reed shared the
same supervisor or had the same decisionmaker determine their
employment status. There is no evidence that any other employee
was treated more favorably than Reed in circumstances nearly
identical to Reed’s. Reed has not met his burden to establish his
prima facie case of race discrimination.
Even if Reed had established his prima facie case, he has not
meet his burden to show pretext. KCSR consistently states that
Reed was terminated for violating its safety policies. ECF No. 74-
26 at 2–3. Violation of a company policy is a legitimate reason for
1 KCSR also argues that the GCOR and Safety Rules governing Reed’s conduct in 2022
were not effective in 2015 and 2017 when Mikeska and Ramos were disciplined. ECF
No. 74 at 16; ECF No. 74-7 (GCOR Eighth Edition, effective April 1, 2020); ECF
No. 74-48 (KCSR’s Safety Rules, effective April 1, 2020).
2 In his “supplement,” Reed cites to portions of Kerry Douglas’s Deposition to identify
another alleged comparator. ECF No. 86-2 at 11. Reed did not attach the deposition
to his supplement, and the cited pages are not present in KCSR’s evidence. As such,
that evidence is not before the court.
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termination. Davis v. Farmers Ins. Exch., 372 F. App’x 517, 519
(5th Cir. 2010).
Accordingly, Reed must present evidence sufficient to
establish a genuine issue of material fact about whether KCSR’s
asserted reason for termination is pretext for discrimination.
Owens v. Circassia Pharm., Inc., 33 F.4th 814, 826 (5th Cir. 2022);
Hager v. Brinker Tex., Inc., 102 F.4th 692, 704 (5th Cir. 2024). The
evidence must allow fair-minded factfinders to reach different
conclusions about whether KCSR’s proffered reason was, in fact,
the reason for Reed’s termination. Owens, 33 F.4th at 826. (quoting
Laxton v. Gap Inc., 333 F.3d 572, 579 (5th Cir. 2003)). A plaintiff
can meet his burden to show pretext with circumstantial evidence,
including evidence of disparate treatment or evidence tending to
show that the employer’s explanation is unworthy of credence. Id.
But the ultimate determination is whether, viewing all of the
evidence in a light most favorable to the plaintiff, a reasonable
factfinder could infer discrimination. Id. (citing Crawford v.
Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000)).
Reed has not met his burden to raise a material fact dispute
as to pretext for his discrimination claim. Reed argues that KCSR’s
proffered reason is pretextual because (1) the investigation into
Reed’s conduct “relied on testimony from individuals who did not
witness the event and ignored mitigating facts[,]” (2) KCSR
deviated from its disciplinary sequence, (3) comparable employees
who violated the same rule were coached or suspended, not
terminated, and (4) a neutral arbitration board later reinstated
Reed. ECF No. 82 at 18–19.
The question at summary judgment is whether the
information management had about the incident gave rise to a
reasonable belief that Reed violated KCSR’s safety policy.
“[E]mployment laws do not transform federal courts into human
resources managers, so the inquiry is not whether [the employer]
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made a wise or even correct decision[.]” Owens, 33 F.4th at 826.
Reed admitted at the hearing that he violated KCSR’s safety rules
by using his personal phone while fouling the tracks. ECF No. 74-
25 at 25. There is no evidence that the investigation into Reed’s
conduct was insufficient or otherwise affected by any racial bias.
Reed has not provided any evidence raising a fact issue as to
disparate treatment. In fact, there is evidence that KCSR
terminated several other employees for using personal devices
while fouling the tracks between September 2021 and December
2022. ECF No. 74-47. Reed’s reinstatement after appeal does not
affect whether KCSR’s explanation was pretextual. See Stinson v.
BNSF Ry. Co., No. CV 14-00143, 2015 WL 13651764, at *15 (C.D.
Cal. Jan. 14, 2015) (“the arbitrator’s findings and reinstatement
award have no relevance to whether BNSF’s explanation was
pretextual and that the actual reason for terminating [Plaintiff]
was unlawful discrimination”).
Reed presents no evidence from which the court can infer
that KCSR’s proffered reason for terminating him is pretextual.
There is no evidence that would allow fair-minded factfinders to
reach different conclusions about whether KCSR’s proffered
reason was, in fact, the reason for Reed’s termination. As such,
KCSR’s motion as to Reed’s discrimination claim should be
GRANTED.
B. Retaliation
To establish the prima facie case for his retaliation claim,
Reed must show that: (1) he engaged in a protected activity, (2) he
suffered an adverse employment action, and (3) there is a causal
connection between the two. Saketkoo, 31 F.4th at 998–1000.
KCSR disputes the extent and timing of Reed’s protected activities
and argues that Reed cannot show that there is a causal connection
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between any protected activity and his termination. ECF No. 74
at 26–27.
The court first considers whether Reed engaged in protected
activities. Reed submitted a complaint to KCSR’s EthicsPoint
hotline on January 11, 2022, and stated that Ramirez wrongfully
placed Reed out of service. ECF No. 74-22. “A general allegation of
hostility is not enough.” Saketkoo, 31 F.4th at 1000 (“an employee
must at least have referred to conduct that could plausibly be
considered discriminatory in intent or effect, thereby alerting the
employer of its discriminatory practices”). Even where a plaintiff
complains of unfair treatment, a plaintiff must demonstrate that
he put the employer on notice that his complaint was based on
discrimination. Harris-Childs v. Medco Health Sols., Inc., 169 F.
App’x 913, 916 (5th Cir. 2006). Reed does not cite any evidence that
he referred to discriminatory conduct in his January 2022
complaint. Thus, Reed did not meet his burden to show that he
engaged in a protected activity as to this complaint. The court
turns to the remaining elements.
Reed suffered an adverse action when KCSR terminated
him. “To demonstrate that a causal link exists between the
protected activity and the adverse employment action at the prima
facie stage, an employee can show close enough timing [that is,
temporal proximity,] between [his] protected activity and the
adverse employment action.” Saketkoo, 31 F.4th at 1001. Reed
submitted his complaint on January 11, 2022. KCSR terminated
Reed on February 4, 2022. ECF No. 74-27. If Reed had shown that
his January 2022 complaint was a protected activity, there would
be sufficient temporal proximity to create a fact question as to a
causal connection at the prima facie stage. See Garcia v. Pro.
Contract Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019) (“a period
of two months is close enough to show a causal connection”).
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To the extent that Reed also argues that he engaged in
protected activities by reporting Poland in October 2020 and by
making various complaints after his termination, Reed has not
shown any causal connection between those activities and his
termination. See ECF No. 82 at 15–16; ECF No. 74-13. Courts have
indicated that three months between the protected activity and
adverse employment action is too long to support a causal
connection. Saketkoo, 31 F.4th at 1001 n.7 (citing Clark Cnty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273–74 (2001)). Any alleged
protected activities that Reed engaged in after his adverse
employment action cannot form the basis of his retaliation claim.
See Carpenter v. Miss. Valley State Univ., 807 F. Supp. 2d 570, 591
(N.D. Miss. 2011).
Even if Reed had shown a fact dispute as to the elements of
his prima facie retaliation case based on his January 2022
complaint, Reed has not shown pretext. The court has already
found that KCSR’s purported reason for Reed’s termination—
violation of a company safety policy—is a legitimate reason for
termination.
Thus, the burden would shift back to Reed to show that
KCSR’s proffered reason for his termination is a pretext for
retaliation. In the context of a retaliation claim, pretext turns on
whether the protected conduct was the “‘but for’ cause of the
adverse employment decision.” Owens, 33 F.4th at 835 (citing Long
v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996)). “[E]ven if a
plaintiff’s protected conduct is a substantial element in a
defendant’s [adverse employment action], no liability for unlawful
retaliation arises if the employee would have [undergone that
action] even in the absence of the protected conduct.” Long, 88 F.3d
at 305 n.4 (citation omitted). A plaintiff may meet their burden to
show pretext by combining suspicious timing with other
significant evidence of pretext. Owens, 33 F.4th at 835.
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Reed argues that KCSR’s purported reason for Reed’s
termination is pretextual. ECF No. 82 at 18–20. Other than
temporal proximity, however, Reed does not provide any evidence
that would allow a fact finder to infer that he was terminated
because of his complaints. There is no evidence that KCSR
“deviated from its own disciplinary sequence,” as Reed argues.
There is no evidence otherwise indicating that Reed’s January
2022 complaint was a but-for cause of his termination. Reed did
not identify any evidence tending to support a rational inference
that his termination was based on retaliation. The only evidence
before the court is that Reed committed serious safety violations,
admitted those violations, and was fired as a result. KCSR’s
motion as to Reed’s retaliation claim should be GRANTED.
C. Hostile Work Environment
To establish the prima facie case for a hostile work
environment, the plaintiff must show that he (1) is a member of a
protected group; (2) suffered unwelcome harassment; (3) the
harassment was based on his membership in the protected group;
(4) the harassment affected a term, condition, or privilege of
employment; and (5) the employer knew or should have known of
the harassment and failed to take prompt remedial action.
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir.
2012). KCSR argues that Reed cannot meet his burden to show the
last three elements of his claim. ECF No. 74 at 20–25.
Before turning to the disputed elements, the court describes
the harassment Reed argues he endured. Reed argues, without
citing evidence, that he was subjected to repeated unwelcome
harassment “including public humiliation by a company executive
and racial targeting by his supervisor.” ECF No. 82 at 13–14.
As to Poland, Reed argues that Poland “regularly accused
Mr. Reed and other Black employees of misconduct, wore
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Confederate flag and ‘crossed guns’ imagery in the workplace, and
issued investigations disproportionately against minority
employees.” Id. at 14. The evidence shows that Poland wore a shirt
and mask with an image of two guns crossed over each other. ECF
No. 74-13. Of the thirteen “failures” Poland issued on operational
tests from January 2020 through October 2020, ten were issued to
Black employees, two were issued to Hispanic employees, and one
was issued to a white employee. ECF No. 74-51.
As to Orr, Reed argues that Orr harassed Reed by stomping
on Reed’s steel-toed boot. According to Reed, “[t]he harassment
was plainly race-based, as it disproportionately targeted Black
employees and was accompanied by racial imagery and
intimidation.” ECF No. 82 at 14.
The court turns to the disputed elements of Reed’s claim.
Aside from disproportionate failures of operational tests, Reed has
not identified any evidence beyond his own subjective belief that
any harassment was based on his race. Conclusory allegations,
speculation, and unsubstantiated assertions are inadequate to
satisfy Reed’s burden. See Gibson v. Verizon Services Org., Inc.,
498 F. App’x 391, 394 (5th Cir. 2012). Even if Reed had shown a
material fact dispute as to whether harassment was based on his
race, he has not shown the remaining disputed elements of his
hostile work environment claim.
For harassment to affect a term, condition, or privilege of
employment, it must be “sufficiently severe or pervasive” and
create an abusive working environment. Gibson v. Verizon Services
Org., Inc., 498 F. App’x 391, 394 (5th Cir. 2012). This is an objective
standard, and it requires that a reasonable person would find the
environment hostile or abusive. Johnson v. PRIDE Indus., Inc., 7
F.4th 392, 400 (5th Cir. 2021). Courts consider the totality of the
circumstances in this analysis, including the conduct’s frequency,
severity, whether it is physically threatening, and whether it
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interferes with the employee’s work performance. Saketkoo, 31
F.4th at 1003. Simple teasing, offhand comments, and isolated
incidents (unless extremely serious) are not enough to alter the
terms and conditions of employment. Johnson, 7 F.4th at 401;
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Reed did not cite any evidence to show that the harassment
he identified affected a term, condition, or privilege of his
employment. As discussed above, courts consider the totality of the
circumstances in this analysis, including the conduct’s frequency,
severity, whether it was physically threatening, and whether it
interferes with the employee’s work performance. It appears that
the harassment was isolated conduct that occurred three times
over the course of two years: Poland failed Reed on an operational
test, Poland wore clothing depicting guns, and Orr stomped on
Reed’s foot. The incidents with Poland were not severe or
physically threatening, and Reed does not identify any other
incidents with Poland aside from the October 2022 conduct.
Orr’s invasion of Reed’s space was inappropriate and
potentially physically intimidating. But it appears that it was an
isolated incident, and it is not clear that that conduct was based
on Reed’s race. Rather, it appears to have been based on Orr’s
doubt that Reed’s shoes were steel-toed because they were
polished. ECF No. 74-5 at 18:16–22. There is no evidence that any
harassment was so severe or pervasive that it interfered with
Reed’s work performance or conditions. As such, there is no
evidence that the alleged conduct rises to actionable harassment.
Reed has not identified any fact question as to the fifth
element of his hostile work environment claim. That is, there is no
evidence that KCSR knew or should have known of the
harassment and failed to take prompt remedial action. If an
employer knew of harassment and took prompt remedial action
that was reasonably calculated to halt the harassment, it can avoid
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liability for a hostile work environment. Williams-Boldware v.
Denton Cnty., Tex., 741 F.3d 635, 640 (5th Cir. 2014). An employer
may take prompt remedial action as a matter of law if it took the
allegations seriously, conducted a prompt and thorough
investigation, and immediately implemented remedial and
disciplinary measures based on the investigation’s results. Id.
“An employer is put on notice of harassment when a person
within the organization who has the authority to address the
harassment problem or an affirmative duty to report harassment
learns of the harassment in question.” Fossil Group, Inc. v. Harris,
691 S.W.3d 874, 884–85 (Tex. 2024) (internal quotations omitted).
An employer may have constructive knowledge of harassment if
the harassment was “so open and pervasive that the appropriate
persons should have known of it had the employer opened its
corporate eyes.” Id. at 885–86 (internal quotations omitted).
Reed argues that he reported Poland’s conduct, but that
KCSR failed to take remedial action. KCSR investigated Reed’s
complaint about Poland and spoke to several individuals regarding
Reed’s allegations. ECF No. 74-13. The investigation findings state
that “[a]n analysis of operational test failures performed by []
Poland was conducted and the allegation that [Poland] only fails
black and brown employees was unsubstantiated.” Id. at 5
(emphasis in original). The report also states that KCSR was
unable to find that Poland’s clothing was worn as a form of
intimidation. Id. Even so, Poland agreed not to wear the clothing
again. Id. After the investigation, Reed’s supervisor Kerry Douglas
spoke with Reed and informed him that the rules were applied
consistently to employees and that Reed would not be disciplined
for his failure of the operational test at that time. Id. at 6. It does
not appear that Reed had any further issues with Poland. The
evidence shows that KCSR took prompt remedial action that was
reasonably calculated to halt the harassment as to Poland. Reed
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does not identify any other evidence that KCSR failed to act upon
or otherwise knew about.
Because Reed does not raise a material fact dispute as to
whether harassment affected a term, condition, or privilege of his
employment or whether KCSR knew or should have known of the
harassment and failed to take prompt remedial action, KCSR’s
motion should be GRANTED as to Reed’s hostile work
environment claim.
D. FMLA Claims
To ensure employees the right to take leave, the FMLA
makes it illegal for employers: (1) “to interfere with, restrain, or
deny the exercise of or the attempt to exercise” any right granted
under the FMLA; or (2) “to discharge or in any other manner
discriminate against any individual for opposing any practice
made unlawful by this subchapter.” 29 U.S.C. § 2615(a). “The
difference between the two claims is that an interference claim
merely requires proof that the employer denied the employee
rights under the FMLA, while a retaliation claim requires proof of
retaliatory intent.” Morris v. Tex. Health & Human Servs.
Comm’n, No. H-16-3116, 2019 WL 3752762, at *13 (S.D. Tex.
Aug. 8, 2019). FMLA claims based on circumstantial evidence, as
here, follow the McDonnell Douglas burden-shifting framework.
Caldwell v. KHOU-TV, 850 F.3d 237, 245 (5th Cir. 2017); Houston
v. Tex. Dep’t of Agric., 17 F.4th 576, 582 (5th Cir. 2021).
In his live Complaint, Reed alleges that KCSR violated the
FMLA by interfering with his FMLA rights and discriminating or
retaliating against him for exercising his FMLA rights. ECF
No. 43 at 21–22. Reed argues that KCSR’s violations occurred
when KCSR issued Reed a formal reprimand for absences in April
2024 and when KCSR determined in September 2024 that Reed
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was not fit to work his usual duties as a conductor and placed Reed
out of service. Id. at 13–16; see also ECF No. 74-39 at 74.
Reed has failed to meet his burden as to his FMLA claims.
In his response, Reed does not address KCSR’s arguments as to
the FMLA claims at all. Reed raises arguments as to FMLA for the
first time in his “supplement.” In the Southern District of Texas, a
failure to timely respond to a motion is taken as a representation
of no opposition. S.D. Tex. L.R. 7.4. Failure to respond to an
argument raised in a motion for summary judgment does not
entitle the movant to summary judgment on that point. Rather,
failure to respond to an argument effectively waives the
nonmoving party’s right to submit argument or evidence on the
point. Ervin v. Sprint Communications Co. LP, 364 F. App’x 114
(5th Cir. 2010); Red Feather Golf & Soc. Club, LLC v. Sod Sols.,
Inc., 783 F. Supp. 3d 942, 956 (N.D. Tex. 2025). Even so, the court
considers evidence Reed cited in his “supplement.”
i. Prima Facie Case of FMLA Interference
To establish his prima facie case of interference under the
FMLA, Reed must show that “(1) he was an eligible employee; (2)
his employer was subject to FMLA requirements; (3) he was
entitled to leave; (4) he gave proper notice of his intention to take
FMLA leave; and (5) his employer denied him the benefits to which
he was entitled under the FMLA.” Caldwell, 850 F.3d at 245.
KCSR argues that Reed cannot show that he gave proper
notice of his intention to take FMLA leave or that KCSR denied
Reed the benefits he was entitled under the FMLA. ECF No. 74
at 30–32.
“While the employee has a right to take leave under the
FMLA, the employee must give his employer notice of his intention
to take leave in order to be entitled to it.” Acker v. Gen. Motors,
L.L.C., 853 F.3d 784, 788 (5th Cir. 2017). “In all instances, ‘an
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employee must comply with the employer’s usual and customary
notice and procedural requirements for requesting leave, absent
unusual circumstances.’” Id. (citing 29 C.F.R. § 825.302(d)); see
also 29 C.F.R. § 825.303(c). “An employer generally does not violate
the FMLA if it terminates an employee for failing to comply with
a policy requiring notice of absences, even if the absences that the
employee failed to report were protected by the FMLA.” Acker, 853
F.3d at 789. Discipline resulting from the employee’s failure to
comply with the usual and customary procedures for requesting
FMLA leave does not constitute interference with the exercise of
FMLA rights unless the employee demonstrates unusual
circumstances. Id.
There is no evidence that Reed gave proper notice of his
intent to take FMLA leave or that KCSR denied him benefits to
which he was entitled under the FMLA. KCSR granted Reed
intermittent FMLA leave from November 8, 2023, through
November 7, 2024. ECF No. 74-35 at 2. Although Reed had been
granted intermittent FMLA leave that applied in April 2024, there
is no evidence that Reed followed KCSR’s procedures to request
FMLA leave for his April 11 absence. There is no evidence that
Reed otherwise submitted a doctor’s note to KCSR at any time for
his April 11 absence. There is evidence that Reed instead signed a
waiver form stating that he violated KCSR’s absenteeism policy in
April 2024. ECF No. 74-44. Although Reed now states that he had
a doctor’s note for his absence and that he should not have signed
the waiver, as the court stated above, there is no evidence that
Reed ever provided a doctor’s note to KCSR for his April 11
absence. ECF No. 74-20 at 21:1–8. As such, Reed has failed to meet
his burden to show a fact dispute as to the prima facie case of his
FMLA interference claim as to his April 2024 absences.
It is not clear to the court how KCSR’s determination in
September 2024 that Reed was not fit to work his usual duties
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could have interfered with Reed’s FMLA rights. Neither party
argues that the September 2024 determination plays any role in
Reed’s FMLA interference claim.
ii. Prima Facie Case of FMLA Retaliation
To establish his prima facie case of retaliation, Reed must
show that (1) he was protected under the FMLA; (2) he suffered an
adverse employment action; and (3) he was treated less favorably
than an employee who had not requested leave under the FMLA
or the adverse decision was made because he sought protection
under the FMLA. Houston, 17 F.4th at 582.
KCSR argues that Reed cannot show that he engaged in a
protected activity as to his April 2024 attendance violations. ECF
No. 74 at 32–33. KCSR also admits, however, that Reed took
multiple other days off in April 2024 that were classified as FMLA
leave. Id. at 31 (“at least three other times in April 2024, Reed had
previously and properly requested FMLA by laying off with the
proper code”). As such, the court assumes, without deciding, that
Reed can show his prima facie case for FMLA retaliation because
he took protected leave in close temporal proximity to disciplinary
action.
iii. Legitimate, Nondiscriminatory Reason and
Pretext
KCSR provides a legitimate, nondiscriminatory reason for
its adverse actions. KCSR states that it disciplined Reed based on
his April 2024 absences due to violation of its two-absence policy.
See ECF No. 74-41 at 4 (“[E]mployees who book off sick or unpaid
personal leave on two or more available work days in the calendar
month will be subject to attendance review for that month.
Disciplinary action may result.”); ECF No. 74-43. Violation of a
company attendance policy is a legitimate reason for termination.
Trautman v. Time Warner Cable Tex., L.L.C., 756 F. App’x 421,
428 (5th Cir. 2018).
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KCSR also states that it removed Reed from service in
September 2024 because its medical team “determined that Reed
was not fit to work the usual duties of his safety critical position
after reviewing Reed’s full medical records.” ECF No. 74 at 34;
ECF No. 74-39 at 74–75. Workplace safety concerns based on
whether an employee is medically fit to work are a legitimate,
nondiscriminatory reason to remove an employee from service.
Mitchell v. U.S. Postal Serv., 738 F. App’x 838, 847 (6th Cir. 2018)
(“workplace safety concerns were a legitimate, nondiscriminatory
reason for placing Mitchell on leave”); see also Washington v.
Potter, 369 F. App’x 580, 584 (5th Cir. 2010); Franklin v. City of
Slidell, 969 F. Supp. 2d 644, 651–52 (E.D. La. 2013).
As such, Reed must raise a genuine dispute of material fact
showing that KCSR’s proffered reasons were pretextual. See
Caldwell, 850 F.3d at 245. For FMLA claims, “[p]retext is
established either through evidence of disparate treatment or by
showing that the employer’s proffered explanation is false or
unworthy of credence.” Trautman, 756 F. App’x at 429 (internal
quotations omitted). Although temporal proximity between FMLA-
protected leave and a subsequent adverse employment action may,
in some circumstances, be sufficient evidence of pretext, courts
consistently hold that any such temporal proximity must be “very
close.” Baumeister v. AIG Glob. Inv. Corp., 420 F. App’x. 351, 356
(5th Cir. 2011); Watkins v. Tregre, 997 F.3d 275, 285–86 n.6 (5th
Cir. 2021) (stating that temporal proximity alone is generally
insufficient to show pretext).
There is no evidence that KCSR’s proffered reasons were
pretextual. Reed does not present any evidence of disparate
treatment or otherwise identify evidence showing that the KCSR’s
proffered explanations are false or unworthy of credence as to
Reed’s FMLA interference or retaliation claims. There is no
evidence or argument that there was “very close” temporal
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proximity between Reed’s protected conduct and any adverse
action.
Reed has not shown his prima facie case of FMLA
interference. Even if he had, Reed did not meet his burden to show
that KCSR’s explanations were pretextual as to FMLA retaliation
or interference. KCSR’s motion for summary judgment should be
GRANTED on Reed’s FMLA claims.
5. KCSR’s Motion for Sanctions
KCSR asks the court to sanction Reed pursuant to Rule 37
for Reed’s “repeated and willful failure to comply with this Court’s
Initial Discovery Protocol [and] his discovery obligations.” ECF
No. 80 at 3. KCSR seeks many sanctions including dismissal of
Reed’s case and an award of attorney’s fees for costs incurred in
connection with the Motion for Sanctions. Id. at 19. According to
KCSR, the motion is generally based on more than 100 audio
recordings in Reed’s possession that Reed did not properly
produce. Id. at 3–4. Reed argues that he has complied with
discovery requests in good faith and that sanctions would be
inappropriate. ECF No. 81.
When a party fails to obey a discovery order, the court may
impose sanctions, including dismissal of the action. Fed. R. Civ.
P. 37(b)(2)(A)(v). District courts have broad discretion in crafting
appropriate sanctions under Rule 37. Law Funder, L.L.C. v.
Munoz, 924 F.3d 753, 758 (5th Cir. 2019). Sanctions, other than
litigation-ending or “death penalty” sanctions, must be just and
related to the particular issue addressed by the discovery order
that was violated. Id.
Neither party cites the disputed audio recordings in their
briefing on KCSR’s summary judgment motion. The court
recommends that summary judgment be granted in KCSR’s favor
on every claim in the case. Because the court has now reached the
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merits of the case, it appears that KCSR was not prejudiced by
Reed’s failure to disclose the recordings. The court declines to
impose sanctions under these circumstances. To the extent that
KCSR argues that it was prejudiced by having to file a Motion for
Sanctions, the court declines to impose attorney’s fees for that
effort. KCSR’s Motion for Sanctions, ECF No. 80, is DENIED.
6. Reed’s Motion for Leave to File Sur-reply and
Motion to Strike
Reed seeks leave to file a sur-reply in support of his Motion
for Leave to Supplement his Response, ECF No. 86.3 ECF No. 89.
“Ordinarily, sur-replies are ‘heavily disfavored,’ and the decision
to allow a sur-reply lies within the district court’s discretion.”
Georgia Firefighters’ Pension Fund v. Anadarko Petroleum Corp.,
99 F.4th 770, 774 (5th Cir. 2024). “[If] a party raises new
arguments or evidence for the first time in a reply, the district
court must either give the other party an opportunity to respond
or decline to rely on the new arguments and evidence.” Id.
Reed already filed a reply in support of his Motion for Leave
to Supplement. ECF No. 90. An additional opportunity to reply in
a sur-reply would be inappropriate in such a posture. Reed also did
not attach his proposed sur-reply to his Motion for Leave. It is not
entirely clear what relief Reed requests. In any event, the court did
not rely on arguments or evidence raised for the first time in any
reply. Reed’s Motion for Leave to File a Sur-reply, ECF No. 89, is
DENIED.
Plaintiff asks the court to strike two of KCSR’s filings:
KCSR’s reply in support of its Motion for Sanctions, ECF No. 84,
and KCSR’s response to Reed’s Motion for Leave to Respond, ECF
3 Confusingly, Reed states that he requests “leave to file a Surreply in response to
Defendant The Kansas City Southern Railway Company’s (“KCSR”) Reply [ECF Doc.
Nos. 84, 85, and 88] to Plaintiff’s Motion for Leave to Supplement his Response to
Defendant’s Motion for Summary Judgment[.]” ECF No. 89.
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No. 85-1. ECF No. 91. The court denied KCSR’s Motion for
Sanctions, so Reed’s Motion to Strike KCSR’s reply in support of
the motion is DENIED as MOOT.
Reed seeks to strike KCSR’s response, ECF No. 82-1,
because it makes prejudicial “irrelevant, scandalous claims[.]”
ECF No. 91 at 5. The court did not rely on any “scandalous”
statements in its analysis on the merits. As such, Reed’s Motion to
Strike KCSR’s response, is DENIED as MOOT.
The court admonishes both parties that filing a motion or a
response as an attachment to another filing on the docket is
inappropriate. Both parties shall endeavor to correctly file motions
and responses as their own docket entries in the future.
7. Conclusion
The court recommends that Defendant’s Motion for
Summary Judgment, ECF No. 74, be GRANTED. Defendant’s
Motion for Sanctions, ECF No. 80, is DENIED; Plaintiff’s Motion
for Leave to Supplement, ECF No. 86, is GRANTED in part and
DENIED in part; Plaintiff’s Motion for Leave to File Surreply,
ECF No. 89, is DENIED; and Plaintiff’s Motion to Strike, ECF
No. 91, is DENIED as MOOT.
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The parties have fourteen days from service of this
Memorandum and Recommendation to file written objections. 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Failure to timely file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474
U.S. 140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–
77 (5th Cir. 1988).
Signed at Houston, Texas, on May 1, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
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