Case 3:02-cv-00445-DB Document 19 Filed 04/07/2003 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

FlleB

. -"2.:-
alerk, Yo

Z~I D-is<t2ri:c1t

Court

By W~st??ift, of Texas

Deputy

Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY,
Defendant. and DeMARCO HOWARD,
PlaintifflIntervenor,
v.
UNION PACIFIC RAILROAD COMPANY,
Defendant.

§ § § § § § § § § § § CIVIL ACTION NO. EP-02-CA-0445-DB § § § § § § § § § § § § §

DeMARCO HOWARD'S
COMPLAINT IN INTERVENTION

NATURE OF THE ACTION

This is an action under Title VII ofthe Civil Rights Act of 1964, Title I of the Civil Rights

Act of 1991, and the Civil Rights Act of 1866,42 U.S.C. § 1981, to correct and award damages for

Defendant's unlawful employment practices based on race, and to provide appropriate relief to

Plaintiff/Intervenor Demarco W. Howard ("PlaintifflIntervenor"), identified in the Complaint filed

herein by the Equal Employment Opportunity Commission ("EEOC"), who was adversely affected

by these unlawful employment practices. The EEOC initiated this action and Plaintiff/Intervenor

Case 3:02-cv-00445-DB Document 19 Filed 04/07/2003 Page 2 of 6

alleges that Defendant Union Pacific Railroad Company (hereafter "Defendant Union Pacific") discriminated against him because of his race (Black/African-American).

JURISDICTION AND VENUE 1. JurisdictionofthisCourtisinvokedpursuantt028U.S.C.§§451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §2000e-5(f)(1) and (3) ("Title VII"), and Section 102 of the Civil Rights Act of 1991,42 U.S.c. §1981(a). 2. The unlawful employment practices alleged herein were committed within the jurisdiction of the United States District Court for the Western District of Texas, El Paso Division.

PARTIES 3. Plaintiff EEOC is the agency of the United Sates of America charged with the administration, interpretation and enforcement ofTitle VII, and is expressly authorized to bring this action by Section 706 (f)(1) and (3) of Title VII, 42 U.S.c. §2000e-5(f)(I) and (3). 4. Plaintiff/Intervenor is a citizen of the State of Texas and is a real party in interest. Specifically, Plaintiff/Intervenor is the person who suffered the discrimination which is the basis of the EEOC's lawsuit against Defendant Union Pacific. 5. At all relevant times to this lawsuit, Defendant Union Pacific has continuously been a Delaware Corporation doing business in the State of Texas and the City of EI Paso, and has continuously had at least 15 employees. 6. At all relevant times to this lawsuit, Defendant Union Pacific has continuously been an employer engaged in an industry affecting commerce within the meaning ofSections 701 (b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).

DEMARCO HOWARD'S COMPLAINT IN INTERVENTION

PAGE 2

Case 3:02-cv-00445-DB Document 19 Filed 04/07/2003 Page 3 of 6

STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, DeMarco W. Howard filed acharge with the Commission alleging violations ofTitle VII by Defendant Union Pacific. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. Since at least August 25, 1999, Defendant Union Pacific has engaged in unlawful 42 U.S.C. § 2000e-2(a)(1) as follows:
a. Defendant Union Pacific discharged DeMarco W. Howard, who is AfricanAmerican, because of his race; and
b. Defendant Union Pacific continued its discriminatory practice of denying DeMarco Howard the right to employment and reinstatement through 2001.
9. The effect of the unlawful employment practices complained of in paragraph eight (8) above have been to deprive DeMarco W. Howard of equal employment opportunities, and otherwise adversely affect his status as an employee and citizen, because of his race. Additionally, the effect ofthese practices have been to deprive DeMarco W. Howard the right to make and enforce contracts, and denial to the full and equal benefit of all laws and proceedings enjoyed by white citizens.
10. The unlawful employmentpractices complained ofin paragraph eight (8) above were intentional.
11. The unlawful employment practices complained ofin paragraph eight (8) above were done with malice or with reckless indifference to the federally protected rights of DeMarco W. Howard.
PRAYER FOR RELIEF WHEREFORE, Plaintiff/Intervenor respectfully requests that this Court:

DEMARCO HOWARD'S COMPLAINT IN INTERVENTION

PAGE 3

Case 3:02-cv-00445-DB Document 19 Filed 04/07/2003 Page 4 of 6

A. Grant a pennanent injunction enjoining Defendant Union Pacific, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of race, including but not limited to, discharging its African-American employees because oftheir race, and any other employment practice which discriminates on the basis of race;
B. Order Defendant Union Pacific to institute and carry out policies, practices, and programs which provide equal employment opportunities for African-Americans, and which eradicate the effects of its past unlawful employment practices.
C. Order Defendant Union Pacific to make whole DeMarco W. Howard, by providing appropriate backpay with prejudgment interest, in amounts to be detennined at trial, and other affinnative relief necessary to eradicate the effects of its unlawful employment practices, including, but not limited to, frontpay;
D. Order Defendant Union Pacific to make whole DeMarco W. Howard, by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph seven above, including but not limited to job search expenses and medical expenses not covered by the Employer's employee benefit plan, in amounts to be detennined at trial;
E. Order Defendant Union Pacific to make whole DeMarco W. Howard by providing compensation for past and future nonpecuniary losses resulting from the unlawful employment practices complained of in paragraph eight (8) above, including but not limited to, emotional pain and suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial;

DEMARCO HOWARD'S COMPLAINT IN INTERVENTION

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Case 3:02-cv-00445-DB Document 19 Filed 04/07/2003 Page 5 of 6
F. Order Defendant Union Pacific to pay DeMarco W. Howard punitive damages for its malicious and reckless conduct described in paragraph eight (8) above, in amounts to be determined at trial;
G. Grant such further relief as the Court deems necessary and proper in the public interest; and
H. Award Plaintiff/Intervenor his costs of this action and reasonable and necessary attorney's fees. JURY TRIAL DEMAND
Plaintiff/Intervenor requests a jury trial on all questions of fact raised by his complaint. Respectfully submitted,
THE LAW OFFICE OF
FRANCISCO X. DOMINGUEZ 521 Texas Avenue El Paso, Texas 79901 (915) 532-5544 (915) 532-5566 Facsimile
Texas Bar No. 00795324 Attorney for Plaintiff

DEMARCO HOWARD'S COMPLAINT IN INTERVENTION

PAGES

Case 3:02-cv-00445-DB Document 19 Filed 04/07/2003 Page 6 of 6

CERTIFICATE OF SERVICE

I hereby certify that on March 11, 2003 a copy of the above and foregoing instrument was served on the following:

Linda C. Schoonmaker, Esq.
SEYFARTH SHAW
700 Louisiana, Suite 3850 Houston, Texas 77002-2731 Tel. (713) 860-0083 Attorney for Defendant Union Pacific

_ _ Hand Delivery
V"'First Class Mail ~x Transmission (713) 225-2340
CM/RRR

Leticia Dominguez, Esq. EEOC EL PASO AREA OFFICE 300 E. Main, Suite 500 EI Paso, TX 79901 Tel. (915) 534-6676 Attorney for Plaintiff EEOC

_ _ Hand Delivery ~irst Class Mail
~ax Transmission (915) 534-6701
CM/RRR

DEMARCO HOWARD'S COMPLAINT IN INTERVENTION

PAGE 6

 
 Case 3:02-cv-00445-DB Document 41 Filed 10/02/2003 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

... ~ ! ~;

EQUAL EMPLOYMENT

§

OPPORTUNITY COMMISSION,

§

Plaintiff,

§

§

v.

§

§

UNION PACIFIC RAILROAD

§

COMPANY,

§

Defendant.

§

§

DEMARCO HOWARD

§

Plaintiff-Intervenor,

§

§

v.

§

§

UNION PACIFIC RAILROAD

§

COMPANY,

§

Defendant.

§

EP-02-CA-44S-DB

MEMORANDUM OPINION AND ORDER

On this day, the Court considered Defendant Union Pacific Railroad Company's

("Union Pacific" or the "Company") "Motion for Summary Judgment," filed in the above-

captioned cause on July 21, 2003. Plaintiff, the Equal Employment Opportunity Commission

("EEOC"), filed a "Response in Opposition to Defendant's Motion for Summary Judgment"

("Response") on August 1,2003, to which Defendant filed a Reply on September 12,2003.

Plaintiff-Intervenor DeMarco Howard filed a "Response in Opposition to Defendant's Motion

for Summary Judgment" ("Intervenor Response") on August 1,2003.

After due consideration, the Court is of the opinion that Defendant's Motion

should be granted in part and denied in part for the reasons that follow.

'\\

Case 3:02-cv-00445-DB Document 41 Filed 10/02/2003 Page 2 of 13
FACTS Plaintiff, the EEOC, is the agency of the United states of America charged with the administration, interpretation and enforcement of Title VII. Defendant, Union Pacific, is a Delaware corporation doing business in the State of Texas and the City ofEI Paso. PlaintiffIntervenor, DeMarco Howard, is a resident and citizen of Texas. Mr. Howard submitted an application for employment with Union Pacific in El Paso, Texas, on May 4, 1998. On April 1998 Union Pacific began to perform criminal background checks on applicants for employment. When Union Pacific conducted the background check on Mr. Howard, the report revealed that Mr. Howard had been convicted of felony theft in August 1993. According to Union Pacific, this would have precluded his employment. However, although background checks were conducted on all new hires, Union Pacific did not act on that information. Mr. Howard was hired on August 3, 1998. Subsequent to that, Jolene Gabel Jefferies, who was hired as Union Pacific's Director of Sourcing in July of 1998, began looking at the completed criminal background checks for new hires. She learned that there were a number of background checks that revealed convictions which would have precluded employment with Union Pacific. Ms. Jefferies prepared a written Background Investigation Program which provided, among other things, that potential employees with felony convictions on their records within the seven year period preceding their application for employment would not be offered employment by Union Pacific. According to Union Pacific, the Background Investigation Program reflected the Company's existing, although unwritten policy. Ms. Jefferies also began investigating the possibility of implementing the Program with respect to those employees like Mr. Howard who should not
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have been offered employment based on the felony convictions revealed by their criminal background checks. Ms. Jefferies forwarded a list of names of employees, which included Mr. Howard, to Union Pacific's Labor Relations group ("LRG") recommending termination of their employment. The LRG, the group responsible for administering the collective agreements in effect between Union Pacific and its various Unions, limited the process to employees in the operating crafts in all states, such as Mr. Howard, whose criminal background checks revealed felony convictions within the preceding seven year period prior to the date of their application for employment, and who had not disclosed the convictions on their applications.
According to Union Pacific, the Company may refuse to hire new applicants without implicating Union rights, however, once they are hired into Union-represented positions they acquire rights under the various collective bargaining agreements. During their first sixty days of employment, they can be terminated at will. Once that initial period has passed, Union Pacific must proceed in accordance with provisions of applicable collective bargaining agreements in order to terminate the employment of Union-represented employees. Under the applicable provisions, Union Pacific must first charge the employee with conduct that violates the Company's General Operating Rules and, thereafter, conduct an Investigation, a hearing where the employee and the Company each have the opportunity to present testimony from witnesses and documentary evidence. The local Superintendent thereafter reviews the transcript of the Investigation and makes the decision of whether to terminate the employment based on the evidence presented. If the decision is to terminate the employment, the terminated employee and/or the Union may challenge the decision with the Public Law Board, which is responsible for overseeing the arbitration process provided for under the collective bargaining agreements. An
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arbitrator ultimately decides whether to uphold the decision to terminate or reinstate the employee and whether to award back pay.
Mr. Howard was charged by the Labor Relations group with falsifying their employment applications, a violation of General Operating Rule 1.6, and was given a notice to appear at the Investigation. As a result of Mr. Howard's Investigation, Union Pacific terminated his employment. Mr. Howard challenged the outcome with the Public Law Board, which decided that Mr. Howard should be reinstated. The Board, however, decided to that Mr. Howard would not receive back pay.
In addition to challenging the outcome with Union Pacific's Public Law Board, Mr. Howard, an African-American, filed a Charge of Discrimination with the EEOC, alleging that the decision to terminate him was based on his race. The EEOC found reasonable cause to believe the allegation was true and attempted, unsuccessfully, to resolve the cause through the informal conciliation process. Thereafter, on September 19, 2002, the EEOC filed the instant cause of action under Title VII ofthe Civil Rights Act of 1964, as amended, 42 U.S.C.§ 2000e5(£)(1) and (3), and Section 102 of the Civil Rights Act of 1991,42 U.S.C. § 1981a, asserting that Defendant discriminated against him on the basis of race. Plaintiff seeks back pay with prejudgment interest for Mr. Howard, in addition to pecuniary, nonpecuniary, and punitive damages. Plaintiff-Intervenor DeMarco Howard filed a "Complaint in Intervention" on March 7, 2003. The instant Motion for Summary Judgment was filed on July 21, 2003.
AUTHORITIES Summary judgment should be granted only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
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there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter oflaw." FED. R. CIv. P. 56(c). The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,323,106 S. Ct. 2548, 2553,91 L. Ed. 2d 265 (1986). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. MIV Risan, 45 FJd 951, 954 (5th Cir. 1995). If the movant does meet this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. Anderson v. Liberty Lobby, 477 U.S. 242,248-49, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. !d. "If the nonmovant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 FJd at 954. When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. Lemelle v. Universal Mfg. Corp., 18 FJd 1268, 1272 (5th Cir. 1994).
DISCUSSION
A. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT I. Evidentiary Matters
As an initial matter, the Court addresses EEOC's challenges to the documentary evidence Union Pacific submits in support of its Motion for Summary Judgment. Specifically, the
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EEOC challenges the affidavit of Jolene Gabel-Jefferies on the basis that it is unsigned and not notarized. The EEOC also asserts challenges to the "Criminal History Faxed Response," "Background Investigation," "Final Disposition-Applicant Result," the Public Law Board decisions, in addition to a three-part chart and a copy of an email message. The EEOC argues that these various documents should not be considered at the summary judgment stage because they lack authenticating testimony. The Court disagrees.
In a "Supplement to Motion for Summary Judgment," filed with the Court on August 5,2003, Union Pacific attached Jolene Gabel·Jefferies's Affidavit, signed and notarized. The Affidavit was filed well in advance of the August 20, 2003, deadline for filing dispositive motions in this case. Thus, Ms. Jefferies's Affidavit is proper evidence to consider in determining the instant Motion. With regards to the Public Law Board Decisions, the Court agrees with Union Pacific in that they are like court decisions which do not necessitate authenticating testimony to be admissible. Finally, EEOC's challenges to the remaining documents must also fail. As Union Pacific points out, these documents were authenticated during the deposition taken by the EEOC of William L. Chandler. The Court is of the opinion, therefore, that these documents are all proper evidence for the Court to consider in determining merits of Union Pacific's Motion for Summary Judgment. II. Plaintifrs Title VII Race Discrimination Claim
In employment discrimination cases, it is imperative that a nonmovant plaintiff "present evidence - not just conjecture and speculation" that the defendant discriminated against the plaintiff on the basis of a protected trait. See Grimes v. Tex. Dep't ofMental Health, 102 FJd 137, 140 (5th Cir. 1996). The focus is on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff. ld. at 139. A plaintiff can prove such
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discriminatory animus by direct evidence or by an indirect or inferential method of proof. See Mooney v. Aramco Servs. Co., 54 FJd 1207, 1216 (5th Cir. 1995). Absent direct proof, the plaintiff bears an initial burden of establishing a prima facie case of discrimination by a preponderance ofthe evidence to raise an inference of intentional discrimination. See McDonnell Douglas, 411 U.S. at 792,802,93 S. Ct. at 1824; Bauer v. Albemarle Corp., 169 FJd 962, 966 (5th Cir. 1999).
The prima facie case, once established, raises a presumption of discrimination, which the defendant must rebut by articulating a legitimate, nondiscriminatory reason for its action. See Meinecke v. H & R Block, 66 F.3d 77,83 (5th Cir. 1995) (citing Texas Dep 't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S. Ct. 1089, 1094,671. Ed. 2d 207 (1981)). Thus, a defendant must merely set forth, through admissible evidence, "reasons for its actions
which, ifbelieved by the trier offact, would support a finding that unlawful discrimination was
not the cause ofthe employment action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S. Ct. 2742, 1. Ed. 2d 40 (1993) (emphasis in original). The employer need only articulate a legitimate, nondiscriminatory reason for its actions, regardless of that reason's ultimate persuasiveness. Bodenheimer v. PPG Indus., Inc., 5 FJd 955,958 (5th Cir. 1993). If the defendant articulates such a reason, the inference of discrimination drops out. See Bauer, 169 FJd at 966. The ultimate burden of persuasion remains with the plaintiff, who then must prove by a preponderance of the evidence that the reasons asserted by the defendant are pretext for discrimination. Burdine, 450 U.S. at 253, 101 S. Ct. at 1093. This may be accomplished either directly, by showing that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the asserted reason is unworthy of credence. Id. at 256, 101 S. Ct. at
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1095. In attempting to satisfy this burden, the plaintiff must be afforded the "opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." ld. The Fifth Circuit has held that a plaintiff must produce substantial evidence of pretext. See Auguster v. Vermilion Parish Sch. Bd., 249 FJd 400,402 (5th Cir. 2001). An employee's "subjective belief of discrimination" alone is not sufficient to warrant judicial relief. Bauer, 169 FJd at 967 (quoting E.E. 0. C. v. La, Office ofCmty, Servs., 47 FJd 1438, 1443-44, 1448 (5th Cir. 1995)) (citation omitted).
a. Prima Facie Case In order to establish a prima facie case there must be a showing that Mr. Howard:
(1) is a member of a protected class; (2) was qualified for his position; (3) was subject to an adverse employment action; and (4) was replaced by someone outside the protected class. Okoye v. Univ. ofTex. Hous. Health Sci. Ctr., 245 FJd 507, 512 (5th Cir. 2001) (citing to Shackelford v. Deloitte & Touche, LLP, 190 FJd 398, 404 (5th Cir. 1999)).
Apparently, Union Pacific concedes that Plaintiff has met the initial burden of establishing a prima facie case of discrimination. The Court agrees. The Parties do not seem to dispute that Mr. Howard, an African-American, is a member of a protected class, that he was qualified for the position of switchman, and that the discharge from employment constituted an adverse employment action. Because Union Pacific was forced to reinstate Mr. Howard to his previous position after the Public Law Board issued the decision to reinstate him without pay, for purposes of the instant Motion, the Court will assume that Plaintiff has also met the fourth prong of the prima facie case.
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h. Legitimate Non-Discriminatory Reason I Pretext for Discrimination Having assumed that the EEOC has met its initial burden, the burden of
production now shifts to Union Pacific to articulate a legitimate, nondiscriminatory reason for terminating Mr. Howard's employment. Union Pacific's stated reason is that the Company began conducting criminal background checks in April 1998, shortly before Mr. Howard applied for employment, and that applicants with felony convictions on their records within the seven year period preceding the date of their application would be precluded from receiving an offer of employment. Union Pacific decided to terminate the employment of those employees, such as Mr. Howard, whose background checks revealed a felony conviction within the preceding seven year period and who had not disclosed the convictions on their applications, but were nonetheless offered employment because Union Pacific was not initially acting on the information received from the checks. Union Pacific argues that it is entitled to summary judgment because the EEOC cannot rebut its proferred, legitimate, non-discriminatory reason for taking the challenged action, and hence, that the EEOC cannot sustain its ultimate burden of proof.
The Court must now determine whether the EEOC has raised genuine issues of material fact as to the pretextual nature of Union Pacific's proferred non-discriminatory reason, and if so, summary judgment in favor of Union Pacific must be denied. The EEOC contends that there exist genuine issues of material fact regarding whether Union Pacific in fact had a policy requiring discharge of all employees whose background investigation revealed them to have a felony conviction in the seven year period preceding their application for employment and who did not disclose that information in their application.
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Plaintiff puts forth various reasons in support of this contention. One of the reasons proferred is that Union Pacific's alleged policy does not coincide with the stated goals for the policy. Jolene Jefferies, Union Pacific's Director of Sourcing, states that the driving force behind the background investigation process is to ensure the safety of its employees by minimizing workplace violence. Presumably, employees who have been convicted of felonies are more prone to engage in workplace violence than employees who have not been convicted of felonies. It follows, then, that employees who were wrongly labeled would not be more likely than other employees to create workplace violence issues, and thus, Union Pacific would not gain anything by discharging them. Yet, Union Pacific's policy required that these employees also be terminated because the background checks, without concern as to their accuracy, revealed them to have felony convictions in the preceding seven years. The EEOC argues that this raises a genuine issue of material fact as to whether Union Pacific had such a policy since it does not coincide with the stated goals of the policy.
Union Pacific's stated reason for discharging Mr. Howard is also brought into question when we analyze how some applicants whose background reports reveal felony convictions are not discharged. According to Ms. Jefferies, if the felony conviction is not a "crime of concern" as defined by Union Pacific, those applications are subjected to further review to determine whether an offer of employment will be revoked. Presumably, some of these employees who have felony convictions, but whose felonies are not "crimes of concern," might survive further scrutiny. Yet, Mr. Howard, who was not convicted of a felony, was terminated because, apparently, the policy required Union Pacific to discharge all employees whose criminal background checks revealed them to have felony convictions, irrespective of whether they were accurate or not, and who failed to disclose those convictions in their applications. The EEOC
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argues, and the Court agrees, that these questions raise genuine issues of material fact as to the pretextual nature of Union Pacific's stated reason for taking the challenged action.
An additional fact that supports the EEOC's contention that Union Pacific's stated reason for terminating Mr. Howard's employment is a pretext for discrimination is that Mr. Howard was not given the opportunity that others had to correct mistaken background investigation results. According to Union Pacific, if a decision has been made to not hire an applicant because their background check revealed a felony conviction, a letter is sent informing the applicant of the decision to not tender an offer of employment. The letter also informs them that they have 14 days to contact Union Pacific and inform the Company that they will attempt to prove the information to be incorrect. After that, they are given additional time to prove their case. However, Mr. Howard was pulled out of his job when he received the letter charging him with a violation of the General Operating Rules and summoning him to appear at the Investigation hearing. According to the EEOC, Mr. Howard made repeated attempts to inform Union Pacific that the criminal background check was incorrect but such efforts proved fruitless. Mr. Graham, the person who represented him during the Investigation process, pointed to Superintendent Daniel Shudak, who was in charge of making the decision of whether to terminate his employment, that the evidence presented at the Investigation showed that Mr. Howard was not convicted of a felony. According to Mr. Howard, Mr. Shudak responded that he did not care. It was not until Mr. Howard challenged the decision to terminate him through the arbitration process that Union Pacific was forced to reinstate him. The EEOC argues that this treatment of Mr. Howard raises genuine issues of material fact as to Union Pacific's stated reason for discharging him. The Court agrees.
Having carefully reviewed the arguments of the Parties and the record in this case, the Court concludes that Plaintiff s evidence is sufficient to raise genuine issues of material fact as
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to the pretextual nature of the stated reason given by Union Pacific for terminating Mr. Howard's employment. III. Plaintifrs Section 1981a Claim
Union Pacific avers that Plaintiffs 42 U.S.c. § 1981 claim is subject to a twoyear statute of limitations and, thus, that it is time-barred. The Court agrees.
"Under Texas law, §§ 1981 claims are subject to a two-year statute oflimitations period." Byers v. Dallas Morning News, Inc., 209 FJd 419, 424 (5th Cir. 2000) (citing to Nat'l Ass'n ofGov't Employees v. City Pub. Servo Bd. ofSan Antonio, Tex., 40 FJd 698, 713 n. 22. (5th Cir. 1994)). Plaintiffs § 1981 racial discrimination in employment claim began accruing in August of 1999, when Mr. Howard was discharged. Plaintiffwas required to bring suit on his claim by August of2001. This suit was filed on September 19, 2002. Thus, Plaintiffs claim is patently untimely.
Plaintiff-Intervenor counters that § 1981 claims are subject to a four-year statute oflimitations, pursuant to 28 U.S.C. § 1658, and thus, that the claim was timely filed. Unfortunately for Plaintiff, this Court is bound by Fifth Circuit precedent which holds that under Texas law, racial discrimination in employment claims pursuant to 42 U.S.C. § 1981 are subject to a two-year statute oflimitations. Byers, 209 FJd at 424. That holding was recently reaffirmed in Jones v. Alcoa, Inc.. 339 FJd 359, 364 (5th Cir. 2003) (holding that "where a Section 1981 claim is brought in Texas, the two-year statute of limitations for personal injury actions in Texas controls."). Accordingly, the Court is of the opinion that Plaintiffs § 1981 claim is time-barred and should be dismissed.
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IV. Attorney Fees

Mr. Howard, in his "Complaint in Intervention," requests for reasonable attorney fees from Defendant Union Pacific. Because Union Pacific's Motion for Summary Judgment is being denied with regards to Plaintiff's Title VII claims, the Court is of the opinion that a request for attorney fees is premature at this time.

CONCLUSION

Because there are genuine issues of material fact with regards to the pretextual nature of Union Pacific's stated reason for discharging Mr. Howard, the Court is of the opinion that Defendants' Motion for Summary Judgment should be denied as to Plaintiff's Title VII claims. However, with regards to Plaintiff's racial discrimination in employment claim, filed pursuant to 42 U.S.C. § 1981, the Court is of the opinion that it should be dismissed as being barred by the applicable two-year statute of limitations. The Court is further of the opinion that PlaintiffIntervenor's request for attorney fees is premature and will not be considered at this point.

Accordingly, IT IS HEREBY ORDERED that the "Motion for Summary Judgment," filed on July 21, 2003, by Defendant Union Pacific Railroad Company is GRANTED IN PART and DENIED IN PART as set forth herein.

~,/E ,d.. / L SIGNED this 2nd day ofOctober, 2003.

I"
Dim BRIONES

UNITED STATES DISTRICT JUDGE

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 Case 3:02-cv-00445-DB Document 64 Filed 10/24/2003 Page 1 of 13

IN THE UNITED STATES DISTRICT COUR\li l'.-;

FOR THE WESTERN DISTRICT OF TExAs ;..
7J EL PASO DIVISION ",~"'j rti

/11 .'" EQUAL EMPLOYMENT

§

i. .'

\(} \ 1
.0"'"

OPPORTUNITY COMMISSION,

§

Plaintiff,

§

______
t 1-----' lPUi I

v.
UNION PACIFIC RAILROAD COMPANY,
Defendant.
DEMARCO HOWARD Plaintiff-Intervenor,
v.
UNION PACIFIC RAILROAD COMPANY,

§

§

EP-02-CA-44S DB

§

§

§

§

§

§

§

§

§

§

§

§

Defendant.

§

AMENDED MEMORANDUM OPINION AND ORDER

On this day, the Court considered Defendant Union Pacific Railroad Company's

("Union Pacific" or the "Company") "Motion for Summary Judgment," filed in the above-

captioned cause on July 21,2003. Plaintiff, the Equal Employment Opportunity Commission

("EEOC"), filed a "Response in Opposition to Defendant's Motion for Summary Judgment"

("Response") on August 1,2003, to which Defendant filed a Reply on September 12, 2003.

Plaintiff-Intervenor DeMarco Howard filed a "Response in Opposition to Defendant's Motion

for Summary Judgment" ("Intervenor Response") on August 1,2003.

After due consideration, the Court is of the opinion that Defendant's Motion

should be granted in part and denied in part for the reasons that follow.

Case 3:02-cv-00445-DB Document 64 Filed 10/24/2003 Page 2 of 13
FACTS Plaintiff, the EEOC, is the agency of the United states of America charged with the administration, interpretation and enforcement of Title VII. Defendant, Union Pacific, is a Delaware corporation doing business in the State of Texas and the City ofEl Paso. PlaintiffIntervenor, DeMarco Howard, is a resident and citizen of Texas. Mr. Howard submitted an application for employment with Union Pacific in El Paso, Texas, on May 4, 1998. In April 1998, Union Pacific began to perform criminal background checks on applicants for employment. When Union Pacific conducted the background check on Mr. Howard, the report revealed that Mr. Howard had been convicted of felony theft in August 1993. According to Union Pacific, this would have precluded his employment. However, although background checks were conducted on all new hires, Union Pacific did not act on that information. Mr. Howard was hired on August 3, 1998. Subsequent to that, Jolene Gabel Jefferies, who was hired as Union Pacific's Director of Sourcing in July of 1998, began looking at the completed criminal background checks for new hires. She learned that there were a number of background checks that revealed convictions which would have precluded employment with Union Pacific. Ms. Jefferies prepared a written Background Investigation Program which provided, among other things, that potential employees with felony convictions on their records within the seven year period preceding their application for employment would not be offered employment by Union Pacific. According to Union Pacific, the Background Investigation Program reflected the Company's existing, although unwritten policy. Ms. Jefferies also began investigating the possibility of implementing the Program with respect to those employees like Mr. Howard who should not
2

Case 3:02-cv-00445-DB Document 64 Filed 10/24/2003 Page 3 of 13
have been offered employment based on the felony convictions revealed by their criminal background checks. Ms. Jefferies forwarded a list of names of employees, which included Mr. Howard, to Union Pacific's Labor Relations group ("LRG") recommending termination of their employment. The LRG, the group responsible for administering the collective agreements in effect between Union Pacific and its various Unions, limited the process to employees in the operating crafts in all states, such as Mr. Howard, whose criminal background checks revealed felony convictions within the preceding seven year period prior to the date of their application for employment, and who had not disclosed the convictions on their applications.
According to Union Pacific, the Company may refuse to hire new applicants without implicating Union rights, however, once they are hired into Union-represented positions they acquire rights under the various collective bargaining agreements. During their first sixty days of employment, they can be terminated at will. Once that initial period has passed, Union Pacific must proceed in accordance with provisions of applicable collective bargaining agreements in order to terminate the employment of Union-represented employees. Under the applicable provisions, Union Pacific must first charge the employee with conduct that violates the Company's General Operating Rules and, thereafter, conduct an Investigation, a hearing where the employee and the Company each have the opportunity to present testimony from witnesses and documentary evidence. The local Superintendent thereafter reviews the transcript ofthe Investigation and makes the decision of whether to terminate the employment based on the evidence presented. If the decision is to terminate the employment, the terminated employee and/or the Union may challenge the decision with the Public Law Board, which is responsible for overseeing the arbitration process provided for under the collective bargaining agreements. An
3

Case 3:02-cv-00445-DB Document 64 Filed 10/24/2003 Page 4 of 13
arbitrator ultimately decides whether to uphold the decision to terminate or reinstate the employee and whether to award back pay.
Mr. Howard was charged by the Labor Relations group with falsifying his employment application, a violation of General Operating Rule 1.6, and was given a notice to appear at the Investigation. As a result of Mr. Howard's Investigation, Union Pacific terminated his employment. Mr. Howard challenged the outcome with the Public Law Board, which decided that Mr. Howard should be reinstated. The Board, however, decided that Mr. Howard would not receive back pay.
In addition to challenging the outcome with Union Pacific's Public Law Board, Mr. Howard, an African-American, filed a Charge of Discrimination with the EEOC, alleging that the decision to terminate him was based on his race. The EEOC found reasonable cause to believe the allegation was true and attempted, unsuccessfully, to resolve the cause through the informal conciliation process. Thereafter, on September 19, 2002, the EEOC filed the instant cause of action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.c.§ 2000e5(t)(1) and (3), and Section 102 of the Civil Rights Act of 1991,42 U.S.C. § 1981a, asserting that Defendant discriminated against him on the basis of race. Plaintiff seeks back pay with prejudgment interest for Mr. Howard, in addition to pecuniary, nonpecuniary, and punitive damages. Plaintiff-Intervenor DeMarco Howard filed a Complaint in Intervention on March 7, 2003, asserting a cause of action under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The instant Motion for Summary Judgment was filed on July 21, 2003, wherein Defendant prays that the Court dismiss both, the Title VII race-discrimination claim and the 42 U.S.c. § 1981 claim.
4

Case 3:02-cv-00445-DB Document 64 Filed 10/24/2003 Page 5 of 13
AUTHORITIES Summary judgment should be granted only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter oflaw." FED. R. Crv. P. 56(c). The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323,106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. MIV Risan, 45 FJd 951,954 (5th Cir. 1995). If the movant does meet this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. Anderson v. Liberty Lobby, 477 U.S. 242,248-49, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. Id. "If the nonmovant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 FJd at 954. When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. Lemelle v. Universal Mfg. Corp., 18 FJd 1268, 1272 (5th Cir. 1994).
5

Case 3:02-cv-00445-DB Document 64 Filed 10/24/2003 Page 6 of 13
DISCUSSION
A. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT I. Evidentiary Matters
As an initial matter, the Court addresses EEOC's challenges to the documentary evidence Union Pacific submits in support of its Motion for Summary Judgment. Specifically, the EEOC challenges the affidavit of Jolene Gabel-Jefferies on the basis that it is unsigned and not notarized. The EEOC also asserts challenges to the "Criminal History Faxed Response," "Background Investigation," "Final Disposition-Applicant Result," the Public Law Board decisions, in addition to a three-part chart and a copy of an email message. The EEOC argues that these various documents should not be considered at the summary judgment stage because they lack authenticating testimony. The Court disagrees.
In a "Supplement to Motion for Summary Judgment," filed with the Court on August 5, 2003, Union Pacific attached Jolene Gabel-Jefferies's Affidavit, signed and notarized. The Affidavit was filed well in advance of the August 20, 2003, deadline for filing dispositive motions in this case. Thus, Ms. Jefferies's Affidavit is proper evidence to consider in determining the instant Motion. With regards to the Public Law Board Decisions, the Court agrees with Union Pacific in that they are like court decisions which do not necessitate authenticating testimony to be admissible. Finally, EEOC's challenges to the remaining documents must also fail. As Union Pacific points out, these documents were authenticated during the deposition taken by the EEOC of William L. Chandler. The Court is of the opinion, therefore, that these documents are all proper evidence for the Court to consider in determining the merits of Union Pacific's Motion for Summary Judgment.
6

Case 3:02-cv-00445-DB Document 64 Filed 10/24/2003 Page 7 of 13
II. Plaintifrs Title VII Race Discrimination Claim In employment discrimination cases, it is imperative that a nonmovant plaintiff
"present evidence - not just conjecture and speCUlation" that the defendant discriminated against the plaintiff on the basis of a protected trait. See Grimes v. Tex. Dep't ofMental Health, 102 FJd 137, 140 (5th Cir. 1996). The focus is on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff. Id. at 139. A plaintiff can prove such discriminatory animus by direct evidence or by an indirect or inferential method of proof. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995). Absent direct proof, the plaintiff bears an initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence to raise an inference of intentional discrimination. See McDonnell Douglas, 411 U.S. at 792,802,93 S. Ct. at 1824; Bauer v. Albemarle Corp., 169 FJd 962,966 (5th Cir. 1999).
The prima facie case, once established, raises a presumption of discrimination, which the defendant must rebut by articulating a legitimate, nondiscriminatory reason for its action. See Meinecke v. H & R Block, 66 FJd 77,83 (5th Cir. 1995) (citing Texas Dep '[ of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S. Ct. 1089, 1094,671. Ed. 2d 207 (1981)). Thus, a defendant must merely set forth, through admissible evidence, "reasons for its actions
which, ifbelieved by the trier offact, would support a finding that unlawful discrimination was
not the cause of the employment action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S. Ct. 2742,1. Ed. 2d 40 (1993) (emphasis in original). The employer need only articulate a legitimate, nondiscriminatory reason for its actions, regardless of that reason's ultimate persuasiveness. Bodenheimer v. PPG Indus., Inc., 5 FJd 955, 958 (5th Cir. 1993). If the
7

Case 3:02-cv-00445-DB Document 64 Filed 10/24/2003 Page 8 of 13
defendant articulates such a reason, the inference of discrimination drops out. See Bauer, 169 F.3d at 966. The ultimate burden of persuasion remains with the plaintiff, who then must prove by a preponderance of the evidence that the reasons asserted by the defendant are pretext for discrimination. Burdine, 450 U.S. at 253, 101 S. Ct. at 1093. This may be accomplished either directly, by showing that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the asserted reason is unworthy of credence. Id. at 256,101 S. Ct. at 1095. In attempting to satisfy this burden, the plaintiff must be afforded the "opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Id. The Fifth Circuit has held that a plaintiff must produce substantial evidence of pretext. See Auguster v. Vermilion Parish Sch. Bd., 249 FJd 400,402 (5th Cif. 2001). An employee's "subjective belief of discrimination" alone is not sufficient to warrant judicial relief. Bauer, 169 FJd at 967 (quoting E.E. 0. C. v. La, Office of Cmty, Servs., 47 FJd 1438, 1443-44, 1448 (5th Cif. 1995)) (citation omitted).
a. Prima Facie Case In order to establish a prima facie case there must be a showing that Mr. Howard:
(1) is a member of a protected class; (2) was qualified for his position; (3) was subject to an adverse employment action; and (4) was replaced by someone outside the protected class. Okoye v. Univ. ofTex. Hous. Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001) (citing to Shackelford v. Deloitte & Touche, LLP, 190 FJd 398, 404 (5th Cir. 1999)).
Apparently, Union Pacific concedes that Plaintiff has met the initial burden of establishing aprima facie case of discrimination. The Court agrees. The Parties do not seem to dispute that Mr. Howard, an African-American, is a member of a protected class, that he was
8

Case 3:02-cv-00445-DB Document 64 Filed 10/24/2003 Page 9 of 13
qualified for the position of switchman, and that the discharge from employment constituted an adverse employment action. Because Union Pacific was forced to reinstate Mr. Howard to his previous position after the Public Law Board issued the decision to reinstate him without pay, for purposes of the instant Motion, the Court will assume that Plaintiff has also met the fourth prong of the prima facie case.
h. Legitimate Non-Discriminatory Reason / Pretext for Discrimination Having assumed that the EEOC has met its initial burden, the burden of
production now shifts to Union Pacific to articulate a legitimate, nondiscriminatory reason for terminating Mr. Howard's employment. Union Pacific's stated reason is that the Company began conducting criminal background checks in April 1998, shortly before Mr. Howard applied for employment, and that applicants with felony convictions on their records within the seven year period preceding the date of their application would be precluded from receiving an offer of employment. Union Pacific decided to terminate the employment of those employees, such as Mr. Howard, whose background checks revealed a felony conviction within the preceding seven year period and who had not disclosed the convictions on their applications, but were nonetheless offered employment because Union Pacific was not initially acting on the information received from the checks. Union Pacific argues that it is entitled to summary judgment because the EEOC cannot rebut its proferred, legitimate, non-discriminatory reason for taking the challenged action, and hence, that the EEOC cannot sustain its ultimate burden of proof.
The Court must now determine whether the EEOC has raised genuine issues of material fact as to the pretextual nature of Union Pacific's proferred non-discriminatory reason, and if so, summary judgment in favor of Union Pacific must be denied. The EEOC contends that there
9

Case 3:02-cv-00445-DB Document 64 Filed 10/24/2003 Page 10 of 13
exist genuine issues of material fact regarding whether Union Pacific in fact had a policy requiring discharge of all employees whose background investigation revealed them to have a felony conviction in the seven year period preceding their application for employment and who did not disclose that information in their application.
Plaintiff puts forth various reasons in support of this contention. One of the reasons proferred is that Union Pacific's alleged policy does not coincide with the stated goals for the policy. Jolene Jefferies, Union Pacific's Director of Sourcing, states that the driving force behind the background investigation process is to ensure the safety of its employees by minimizing workplace violence. Presumably, employees who have been convicted of felonies are more prone to engage in workplace violence than employees who have not been convicted of felonies. It follows, then, that employees who were wrongly labeled would not be more likely than other employees to create workplace violence issues, and thus, Union Pacific would not gain anything by discharging them. Yet, Union Pacific's policy required that these employees also be terminated because the background checks, without concern as to their accuracy, revealed them to have felony convictions in the preceding seven years. The EEOC argues that this raises a genuine issue of material fact as to whether Union Pacific had such a policy since it does not coincide with the stated goals of the policy.
Union Pacific's stated reason for discharging Mr. Howard is also brought into question when we analyze how some applicants whose background reports reveal felony convictions are not discharged. According to Ms. Jefferies, if the felony conviction is not a "crime of concern" as defined by Union Pacific, those applications are subjected to further review to determine whether an offer of employment will be revoked. Presumably, some of these employees who have felony convictions, but whose felonies are not "crimes of concern," might survive further scrutiny. Yet, Mr. Howard, who was not convicted of a felony, was terminated because,
10

Case 3:02-cv-00445-DB Document 64 Filed 10/24/2003 Page 11 of 13
apparently, the policy required Union Pacific to discharge all employees whose criminal background checks revealed them to have felony convictions, irrespective of whether they were accurate or not, and who failed to disclose those convictions in their applications. The EEOC argues, and the Court agrees, that these questions raise genuine issues of material fact as to the pretextual nature of Union Pacific's stated reason for taking the challenged action.
An additional fact that supports the EEOC's contention that Union Pacific's stated reason for terminating Mr. Howard's employment is a pretext for discrimination is that Mr. Howard was not given the opportunity that others had to correct mistaken background investigation results. According to Union Pacific, if a decision has been made to not hire an applicant because their background check revealed a felony conviction, a letter is sent informing the applicant of the decision to not tender an offer of employment. The letter also informs them that they have 14 days to contact Union Pacific and inform the Company that they will attempt to prove the information to be incorrect. After that, they are given additional time to prove their case. In the case of Mr. Howard, however, he was pulled out of his job when he received the letter charging him with a violation of the General Operating Rules and summoning him to appear at the Investigation hearing. According to the EEOC, Mr. Howard made repeated attempts to inform Union Pacific that the criminal background check was incorrect but such efforts proved fruitless. Mr. Graham, the person who represented him during the Investigation process, pointed to Superintendent Daniel Shudak, who was in charge of making the decision of whether to terminate his employment, that the evidence presented at the Investigation showed that Mr. Howard was not convicted of a felony. According to Mr. Howard, Mr. Shudak responded that he did not care. It was not until Mr. Howard challenged the decision to terminate him through the arbitration process that Union Pacific was forced to reinstate him. The EEOC argues that this treatment of Mr. Howard raises genuine issues of material fact as to Union Pacific's stated reason for discharging him.
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Case 3:02-cv-00445-DB Document 64 Filed 10/24/2003 Page 12 of 13
Having carefully reviewed the arguments of the Parties and the record in this case, the Court concludes that Plaintiff s evidence is sufficient to raise genuine issues of material fact as to the pretextual nature of the stated reason given by Union Pacific for terminating Mr. Howard's employment. III. Plaintiff-Intervenor's Section 1981 Claim
Union Pacific avers that Plaintiff-Intervenor's 42 U.S.C. § 1981 claim is subject to a two-year statute of limitations and, thus, that it is time-barred. The Court agrees.
"Under Texas law, §§ 1981 claims are subject to a two-year statute oflimitations period." Byers v. Dallas Morning News, Inc., 209 FJd 419, 424 (5th Cir. 2000) (citing to Nat 'I Ass'n ofGov't Employees v. City Pub. Servo Bd. ofSan Antonio, Tex., 40 FJd 698, 713 n. 22. (5th Cir. 1994)). Plaintiff-Intervenor's § 1981 claim began accruing in August of 1999, when Mr. Howard was discharged. Plaintiff-Intervenor was required to bring suit on his claim by August of2001. This suit was filed on September 19, 2002. Plaintiff-Intervenor filed a Complaint in Intervention asserting his § 1981 claim on April 7, 2003. Thus, PlaintiffIntervenor's claim is patently untimely.
Plaintiff-Intervenor counters that § 1981 claims are subject to a four-year statute oflimitations, pursuant to 28 U.S.C. § 1658, and thus, that the claim was timely filed. Unfortunately for Plaintiff-Intervenor, this Court is bound by Fifth Circuit precedent which holds that under Texas law, racial discrimination in employment claims pursuant to 42 U.S.C. § 1981 are subject to a two-year statute oflimitations. Byers, 209 FJd at 424. That holding was recently reaffirmed in Jones V. Alcoa, Inc.. 339 FJd 359,364 (5th Cir. 2003) (holding that "where a Section 1981 claim is brought in Texas, the two-year statute of limitations for personal
12

Case 3:02-cv-00445-DB Document 64 Filed 10/24/2003 Page 13 of 13
injury actions in Texas controls."). Accordingly, the Court is of the opinion that PlaintiffIntevenor's § 1981 claim is time-barred and should be dismissed. B. Request for Attorney's Fees
Mr. Howard, in his "Complaint in Intervention," requests for reasonable attorney fees from Defendant Union Pacific. Because Union Pacific's Motion for Summary Judgment is being denied with regards to Plaintiff s Title VII claims, the Court is of the opinion that a request for attorney fees is premature at this time.
CONCLUSION Because there are genuine issues of material fact with regards to the pretextual nature of Union Pacific's stated reason for discharging Mr. Howard, the Court is of the opinion that Defendants' Motion for Summary Judgment should be denied as to the Title VII claim. However, with regards to Plaintiff-Intervenor's 42 U.S.C. § 1981 claim, the Court is of the opinion that it should be dismissed as being barred by the applicable two-year statute of limitations. The Court is further of the opinion that Plaintiff-Intervenor's request for attorney fees is premature and will not be considered at this point. Accordingly, IT IS HEREBY ORDERED that the "Motion for Summary Judgment," filed on July 21,2003, by Defendant Union Pacific Railroad Company is GRANTED IN PART and DENIED IN PART as set forth herein. SIGNED this 24th day of October, 2003.
-
THE ONORABLE DAVID BRIONES UNITED STATES DISTRICT JUDGE
13

 
 Case 3:02-cv-00445-DB Document 71
RECEIVED'

Filed 02/02/2004 Page 1 of 10

,)Ar'1 I 6 2004

CLE;~:'\. U S'.

COURT

WE::., I L"" b>i,H 1I1GT 0/1" TEXAS

BY

_"""=_, IN'THE UNITED STATES DlSTRlCT COURT

O£PUTY CLe:rwOlt THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

ilAJ.~\r

'

Q.
v'

I

._ , " \"

i I

EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION,

§

PIabIUff,

§

v.

§

UNlON PACIFIC RAILROAD COMPANY, §

Defendant.

§

DEMARCO BOWARD

§

Pla.ID.tifl-mtcnenor, §

~

§

1JN[ON 'Acme RAlLR.OAD COMPANY. §

Def_dant.

§

C. A. No. EP·Ol-CA-044S--DB

CONSENT DECREE The parties to this Consent Decree are the Plainti.f£ United States Equal Bmployment Opportunity Commission ("EEOC") and Defendant. Union Pacific Railroad Compal1Y \the Railroad"). This Consent Decree resolves the abovweferenced Civil
Action No. EP·02~CA-0445-DB. The EEOC initiated tlUs )awsuit under 'Title vn of the
Civil Rights Act of 1964. as amended, 42 U.S.C. section 2000", er seq. reTItle VIr,) and Title I oftbe Civil Rights Act of 1991. 42 U.S.C. section 1981a. The Complaint was filed by th8 EEOC to correct alleaed unlawfbl employment practices with respect to DeMarco Howard C'Howard") on the basis of race (Aftican American) and to provide alleged appropriate relief to Howard. who allegedly was adversely affected by such practices. Specifically. the EEOC alleges that Howard, who is Afiican American, was terminated
because oihis race in violation ofTitle VII. The EBOC and the Railroad wish to settle this actioll without the necessity of
further litigation, pursuant to the tmms delineated ill this Consent Decree. IT IS ORDERED, ADIUDGBD AND D.ECR.BlID as follows:
7/·

Case 3:02-cv-00445-DB Document 71 Filed 02/02/2004 Page 2 of 10
1. This Court has jurisdiction of the subject matter of thIs action and the
parties, venue is proper, and an administrative prerequisites to the filing of this action
have been mot. The Complaint states claims. which, ifproved, would authorize the Court to grant relief against the Railroad pursuant to Title V1L
2. This Consent Decree resolves those claims a.gain.at the Railroad raised in the Complaint in this case. The EEOC expressly resBIVes its right to process and litigate
my other charges that may now be pcm.ding or may in tho future be filed against the
Railroad, except Charge Number 361A00006 filed by or onbehalfofHoward. 3. The duration of this Consent Decree shall be two (2) years from the date
or its filing with the Court. This Colltt shall retain jurisdiction of this action dIlring the
period of this Consent Decree and may anter such other and fUrther relief 88 it deems appropriate to ensure implementation and enforcement ofits provisions.
4. The Railroad. in settlement of this disputo and the Charge of
Discrimination filed by Howard against the Railroad. which is Charge Number
361A00006, has paid to Howard and his attorney the sum of S84,OOO.OO~ less applicable payroll deductions. Copies of the seUlcment checks and any accompanying transmittal docum.ems shall be forwarded to the EEOC to the attention of Robert B. Harwin, lbgional Attorney. 5410 Fredericksburg Road, Suite 200. San Antonio. Texas 78229.
5. The Railroad shall continue to mail or email copies of its Equal Employment Opportunity policies, which are attached hereto as Exhibit A, annually to employees employed by the .Railroad. in the El Paso, Texas Transportation Department al their home addresses for the duration of this Consent Decree, and shall continue to display its Equal Employment Oppo.L't'l'1.nity poster. a copy of which is attached hereto as
2

Case 3:02-cv-00445-DB Document 71 Filed 02/02/2004 Page 3 of 10
Exlu"bit ~ at the El Pasol' Texas Transportation Department for the duration of this Consent Decree..
6. The Railroad shall continue to provide Equal Employment Opportunity traiIJing to its management and supervisory employees em.ployec1. by the Railroad in the EI Paso, Texas Transportation Department for the duration of this Consent Decree. The
traiDiDg will include infonnation that it is unlawful to tmminatc an employee because of
his or her race, and to retaliate against an employee because he or she complains of discrimination. The training will also identify what activities and conduct are protected
under Title VIL and will explain the damaging effects that race discrim.i.nati.on and
retaliation have on employees and the workplace. 7. Within 180 days after the entry of this Consent Decree, the Railroad shall
provide to the EEOC documentation that its management and supervisory employees employed by the Railroad in its HI Paso, Texas Tnmsportation Department have participated in the Railroad's Equal Employment OpportUnity classroolJ'l training program for managers and supervisors either before or after the entry of this Consent Decree, and have baem provided copies ofthe Railroad's Equal Employment Opportunity policies by email to their work address.
8. The EEOC shall have the right for me duration ofthis Consent Decree to
ensure compliance with the terms of this ConS811t Dccree and may. (a) conduct inspections of the Railroad's El Paso, Texas Transportation Department; (b) interview employees; and (c) examine and copy relevant documents.
9. The R.ai1road is enjoin~ dming me term of this Consent Decree, from
retaliating in any manner whatsoever against any employee employed by the Railroad in
3

Case 3:02-cv-00445-DB Document 71 Filed 02/02/2004 Page 4 of 10
the El Paso, Texas Tnmsportation DepartlI'ltmts including Howard while he is employed
by the Railroad, for opposing any employment practice made unlawful by Title VII. or
fbr complaininS of unlawful discrimination. filing a discrimination charge, giving testimony or assistance, or participating in any lawful manner in any investigation,
procecd.i.n& hearing or action under Title V11. The Railroad is also enjoined. during the
term of this Consent Decree, from tenninating the employment of any African American employee emplDyed by the Railroad in the E1 Paso, TI'8DSportarion Departm8l1t on the basis ofhit or har taCo.
10. The terms Df this Consent Decree sball be binding upon the EEOC and the Railroad and its agents 01:' assigns as to the issues resolved herein.
11. The parties to 1his Consent Decree shall bear thoit' own costs and attorney's fees incurred in this action. The pattiC!:8 agree that, pursuant to Section 706(k) ofTitle W lI 42 U.S.C. section 2000e·S(k), there is no "prevailing party" in this action or proceeding.
SO ORDBRED.
'2/ Signed this ff'dayof ____A_14?f_,---,u
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Case 3:02-cv-00445-DB Document 71 Filed 02/02/2004 Page 5 of 10

~
UNDA C. SCHOONMAKER Texas Bar No. 17806300
SEYFARTH 8HAW lJ..P 700 Lo\1\siana Street. Suite 3850 Houston~ Texas 77002·2731 (713) 225-2300 (713) 225·2340 Fax
ATTORNEYFORD~ANT

Respectfully submitted,
ERIC S. DREIBAND General Counsel
JAMESL.LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS
Associate General Counsel
ROBERT B. HARWIN' Regional Attomey District of Columbia Bar No. 076083
JUDITH G. TAnOR. Supervisory Trial Attorney Texas Bar No. 19708300

LETICIA DOMINGUEZ Trial Attomey Texas Bar No. 00795741
EQUAL BMPLOYMBN1' OPPORTUNITY COMMISSION Bl Paso Area Off1cc 4171 N. Mes~ Blclg. C. Suite 100 El Paso, Texas 79902 (915) 832-4036 (91S) 832-4026 Fax
ATTORNEYS FORPLAINTlFF

s

Case 3:02-cv-00445-DB Document 71 Filed 02/02/2004 Page 6 of 10

~fc.Ys .l~~
TauBarNo. 17806300
SBYPARTH SHAW W 700 Loulllana", Suite 3150 HcruIfDa, Tma 7100z.m1 (71!) 225-2300 (713) 225-2340 Pax
ATI'OllNBY'FOR DDBNDANT

B.apectfbI1y sabmta&f,
ERIC S.D'REIBAND a....tCotael
l.A:MES 1.. tBE Deputy GIDIrI1 CDUDIel
GW.BNDOLYN YOONOIJ3AMS .Associate Oemal COtIDsel

ClA.DOMlN""''II....\
Tdal.AftDmrJ1
TauBarNo. 0079.5741
EQUAL BMPLOYMBNT OPPORTONll'Y
C())4M]SSlQN
mPa Ara 0fBc0
4171 N. Mesa. '8Jda. C. Suitel00
BtP_,"'" 79902 <,15) 132-4036 . (915) 832-402& Fa
A1'T01UmYS POAPLA'INTlP'P

s

Case 3:02-cv-00445-DB Document 71 Filed 02/02/2004 Page 7 of 10

UPRRHR Paliqr Manual- BBO PBtu
•
UPRR HR Policy Manual

Page 1 ofl

BEOPoHcies

Equal EmplOJlllent Opporiualty/AfDnaative Aed.OD aDd Related Polley Dfreetlves
Bffeotive Auaust 6.2003 PURPOSE
UDiOl1 Paclfic is sCroDg1y committed to equal opportunity iD all employment matters. Our wodc enviromnent
must always be one thatrcspecrs cll1foreDces, wh01het bad on uae, color. ga... DatiOJlll oriJin. age,
ctisabili1l, mJigion, wteraD status. or aexual orientation. so that a.tl empJO)'IIS can con1rlb&&te to their fUnest poUIrtiaL "Ibese Poltcy Dlrectivc:9 explain what Union Pacific expects ofim employees in this imporfam area.

PItORlBmON or DISClUMINADON ORBARASSMINT
Union Pacific strictly prom"bits lIlY discrimlaatkm or ~t based on a PlI'&OIlr, re.ces. color. pader:r
DStional orilA ... disability. rcUsicm, vete\'arJ. status. soxua1 orieutatiODa or au;y other ground prohibited by law
("protected rtatus"). 1his policy eoV8rl all aspects ofemplo)'lll8llt inclutUns htriDls proI11atiOl!S, taminadons. pay» and me wolk ea:virolUDent.

rROBlBmON or OrrENSlVE BltBA.VIOR. 6\ REMAl\KS

Union Pacific is conu;Diued to pmv:lcHna a work onvlroDment fRe from. dea.Ilve beba\lior or matem.e.D.ts

di!ectecl at a peJ'8OD1Srace. pnder. or my oTlwr :protected status. Tlds policy p[ohi"bi~ suoh offimsiv. 'bohavior

and re.J:D&:Ib in the p.n::sClll.CHl ofoibcr employees, contractors. customers. visltoDl, mel any oduIr porIOns. Please

note that this polic:r prohibits auch offimsj\le behavior or etatcmems ill the workplace:. while zepret;.mg Union

~
of race.

ifa. or dmiug navel or aver.pfght S18)'S paid !or by Uman Paeifi~ that are deroplOXY
J8Dde,r, or any other protected status eYCD 0•• who Js preseat is otrended

of any person because by the bebvlor or

remark.

.

1ho 1JPeS ofprobibited behavior include, but are not limited m, The following:
1. AAy o1limsiw Dr _amiDi epithI1 or remade refening 10 race. gender, or other ptotected status,
incJ.udins that which is Innmded u humor,
2. Any offi:Daive or demeaning comment, le~ or other behavior directed toward 8D.OThar person because oftbat person's race, puder. or other protected status:
3. Use ofCoJltpmy propmy to d.isplay or stole material that is demeaniug or G1feasive on the basis ofa
protected status;
4. Sbariq or displayina my ita or mataial that is demelnjng or offeusivl on tho basis ofaproteded
sta!uSJ such 8$ aIlOO5'e, II'W'ISt:ib, the initials "KKK". or a con:tederate flaa;
5. DefAcing Com.pa:o.y p:rop.arty or peracmalproperty ofanother person for purposes ofCDD"ayiDs a
demtRJ.DiJJg or ofCc.Dsfve masap bUcd on or lcfo.aiDg to a protected. status; or

I
ZlRO TOLERANCE
UnionPaGific cioell1Ot tolerate any ~ ofd.ilSGrimjnatigDt blraaamat. or offasivo behavior ~ on a 'DtOleCted JWUS. AlI'DlOven vio1aJ:iou ofUniob Paclftc's 'Dolidc:s aW'inst, disc1imi:nation baras8Duml. and

Case 3:02-cv-00445-DB Document 71 Filed 02/02/2004 Page 8 of 10

UPlUt HR. Polley Manual .. BSO PElies

~

Page 2 ar 3

•
ofreusive'be.bavif)r win:resu1.t in appropriata cli.scipUne oftlla employee, up to and Jnclad.ing t.e.tmJna1ion.

OAffiti or other anonymous oammunigat:lcms hi ~laUon ofthis ;poliO)' are partieu1ar1y serio", mel absent very

compellina extenul.tina ~ can tesu.k In di~jsW on the fh1t offtmse. Such anonymous

cornmv.uications w111 also be I'Ofcrred to tho UPRR Police for an invesdptlon.

REPOaTING VIOLATIONS AND QlJESTlOQ
Any pl!SOJ1 who believes tbathe 01' she Is being subjected to beba:vtot ofthis nature, or is a:ware ofsuch problbbd CODddct directed toward anotberperson, has a respousibUlty to report the matter at once. Employees MtJ8T come forward at onoe when violations occur or there is a need for further iD1bnnation or assistanee. Any alleged.poliey -riolatioDS wiD be investigated, uudntaintna contic1entiality to the fullest exteat ccmsistoDl Wl1h a
thorough iDvestiptlon.

YOl1MU8T eall the BBO Depaaaueut using our toll :free number that is mehrtsined on a 24 hour basis at 1-8668n·3362 [l-866-UPa.-BBOC].

.

0._BEOD:r;:_t 1416 Do Street Rooml2D N.brub 681"19

PROIilBI,III-OMN6-o-8rT7R-E33TUALIATION
Thcl'crwill be DR unlawful retaliatlon apiDst any employee mr mak;ns a good faith report ofaUeged.vlolatlons ofour Company's polley apblst discrimination. ~smezrc. or offcmsi.ve bel:uMor; opposiol any pmctice believed in good faith to be UDJawMly d.l&a:iminatoIy; or participa1lng in an intema1 or govemmcms
mveatiptlan ofpos.iDle disctimiDation. ArIJ esnployee who engaps inprohibiT.ed tetaliatiorl will receive
appmpziate disctpUne, up 10 8l1d including tarmination.

PROOQJBmON 0 ' SEXUAL HARASSMENT UnloD. Pacific FOhibib sexual hari\ssment ofemployees, cont:ractorl~ eustam.erSJ visitors, and o1:bers that employcu may come iII ecmtac:t with white warldrJs., tqnSeDtiDg the Campauyt or wbilc on Company travel. Union Pacific prohibits u:a.we1come sexual adV8DC8Sa request& for sexual. favors. ancl other verbal or physical behavlor ofa sexual naturo when:
1. Submission to such conduct I. made either expllaltly orimplicitly a tenn or condition ofan individual's
employment;
2. Submiaeion to or rejection ofsuch ccmdo.ot by .. indiv.i~ is used 18 the basis tar employment dccisi01ll affectiq such individual: ·or

3. Such oozuluct.bas 'the pmpoN or efrectof'llllnlllloubly i:n'terferius with 8D iDdivid:wIlts work l'erf'o=,"oe. Of creating an~. hosd1e, or offemJiw wodt envirornneut.
CtllllpltMt:l qfse:r:utll harassmentMUST be reported at rmce ro ,he EEO DtIpllI1mem in Om.a 1111-866-817.
$362.

Case 3:02-cv-00445-DB Document 71 Filed 02/02/2004 Page 9 of 10

Page 3 ol3

umcm. As required by :Weral andltatc law.

PaQfic tteatI women aft"ecbKI by ~II childbirth or related.

medical conditions at last as wotl u other employeu with temporazy disahllities.

REASONAaEACCOMMODATION or DISABILlTIIS AND UUGIOlJS 'BE"mrs As teq\dred.by fodfllt81 md state law.. Union Paci& will make teUm:aahle accommodations for persoaI with sta1UtoIily protected. disablUties when this wU1 permit the person to pmfozm the essenJjal f\mttiona ofthe job
and. tioos :a.ot impDSI: III 'UIld:L1e hardJbip. The Com,P&DY will also make: nasorsahle accommodation for the religious needs of employees where such actommodation can be made without undue batdsbip. Persons
wiShIDs to request reasonablo aceommodatlon ofa disability or religious belief, should contaCt the ESO
Depa:rllclcnt at 1-166-877-3362.

APFIllMATIVE ACTION p.OGRAMS
UnUm Pacific undertakes atIltmative ac1ion to hire and adV8.llCC qualified minor1de~ femalee. and elilible VeteIIJ15 (whioh ptlfmIlly includes pS'SOIlS who have ferwd in 1he US military during IDY period ofarmed confliGt). Under its affbmatM: action program tor minorities and females. Union Pacific undeItalces good faith
efforts to CODaQ& IDY areas ofUDdemtiliZll1iOl1ancl monitors its employment practices for potential discrimiuatlon. Persons who would 1fkt mare iDforma1ion about Union Pacific's affirmative acbOD ~lans aDd
elisibleveteraus who wlIh to be inalud.ed under1his afthIrlative action proanm 8Je iuvlted to contact !he ElSa
Department at 1-866-81'1-3362.
FAMILY AND MEDICAL LEAVIACT Undertbe ~ 1he Company provides eligible =.ploye. up ID 12 weeks ofUllpaid leave eac)l yoar (which in certain ~ may be a comhinarian ofpaid and unpaid leave) for qua.lIfyiq PMLA-related s.=dldonsa Leave is provided for the birth oradoption ofa chUd, p1acemerlt ofa faster care cblld, care ofa spouse. child or parent with a serious heaJ.1h ooudir.ion or for the employee's own serious health eondition. Plcue consult the EEO Depa:rtm.eDt for f.Urtber iDformI1iOD about FMLA leaves.
GOVI.IINMENT AGENCIES In adcli1ion to reporting complaints ofcUacrim.iDation or lwassmentto the Union Pacific DO Department, you
Juwothe tigbt to file a COlIIPaiDt with the fec1eral Bq,ual Em.PJoym.ent Opport.tmity Commission or a local
.amploymalt rights agency.. Telepb.oue uumbcrs for th.se agencies may obtainad tram the posters at cragb &.c11ity OJ: from the !EO Departxntmt.
COMPLIANCE EXrICTATIONS Union Pacfflo expects each otitl employees to be tiaougbly familiar with1ho Policy Direoti\"BS a1Jd make certatn that 'their evoZ1day actions are in. compliallce. Violation ofthese policies will rosu1t in appropriate discipline, up to and iDcluding 1enpjmrtion.

Case 3:02-cv-00445-DB Document 71 Filed 02/02/2004 Page 10 of 10
tmr
EMPLOYMENT EQUAL UNION
I'f\UHC
111111 OPPORTUNITY POLICY
•

 
 CM/ECF LIVE - U.S. District Court:txwd - Docket Report

https://ecf.txwd.uscourts.gov/cgi-bin/DktRpt.pl?695078988741812-L_3...

U.S. District Court [LIVE] Western District of Texas (El Paso) CIVIL DOCKET FOR CASE #: 3:02-cv-00445-DB

CLOSED

Equal Employment v. Union Pacific, et al Assigned to: Judge David Briones Demand: $0 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 09/19/2002 Date Terminated: 02/02/2004 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Enrique Chavez, Jr. Chavez Law Firm 1400 Montana Ave. El Paso, TX 79902 (915) 351-7772 Fax: 915/351-7773 Email: chavezlaw7773@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith G. Taylor U.S. EEOC San Antonio District Office 5410 Fredricksburg Rd. Suite 200 San Antonio, TX 78229-3555 (210) 281-7637 Fax: 210/281-7669 Email: judith.taylor@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leticia Dominguez Equal Employment Opportunity Commission 300 E. Main Suite 500 El Paso, TX 79901 (915) 534-6676 Fax: 915/534-6701 Email: Tisha.Dominguez@eeoc.gov TERMINATED: 03/28/2003 LEAD ATTORNEY

Robert B. Harwin Equal Employment Opportunity

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CM/ECF LIVE - U.S. District Court:txwd - Docket Report
V. Defendant Union Pacific Railroad Company
Intervenor Defendant Equal Employment Opportunity Commission
Intervenor DeMarco Howard
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https://ecf.txwd.uscourts.gov/cgi-bin/DktRpt.pl?695078988741812-L_3...
Commission San Antonio District Office 5410 Fredericksburg Road Suite 200 San Antonio, TX 78229-3555 (210) 281-7643 Fax: (210) 281-7669 Email: robert.harwin@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Cooper Schoonmaker Seyfarth Shaw 700 Louisiana Street Suite 3700 Houston, TX 77002-2731 (713)225-2300 Fax: 713/225-2340 Email: lschoonmaker@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Enrique Chavez, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judith G. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leticia Dominguez (See above for address) TERMINATED: 03/28/2003 LEAD ATTORNEY
Robert B. Harwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Francisco X. Dominguez The Law Office of Francisco X.
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CM/ECF LIVE - U.S. District Court:txwd - Docket Report

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Dominguez 521 Texas Ave El Paso, TX 79901 (915) 532-5544 Fax: 915/532-5566 Email: brownbuffalo@world.oberlin.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/19/2002 09/19/2002 10/08/2002 11/18/2002 11/20/2002 01/10/2003 01/14/2003
01/14/2003 02/07/2003 02/10/2003 02/12/2003
03/11/2003

#

Docket Text

Case assigned to Judge David Briones (jm) (Entered: 09/20/2002)
1 Complaint filed. (Pages: 4) (jm) (Entered: 09/20/2002)
2 Waiver of Service by Union Pacific ; Notice and Request Mailed on 10/3/02 ; Answer due on 12/2/02 for Union Pacific (mt) (Entered: 10/08/2002)
3 Answer by Union Pacific (mt) (Entered: 11/18/2002)
4 Order to comply with FRCP 26 and local court rule CV-16 (mt) (Entered: 11/20/2002)
5 Notice of filing joint report of the meeting & joint discovery/case management plan under Rule 26(f) of the FRCP. by Equal Employment (mt) (Entered: 01/10/2003)
6 Scheduling order setting Joining of parties, amending of pleadings on 4/1/03 Deadline for filing of all motions 6/20/03 Discovery cutoff 6/20/03 ; Alternate Dispute Resolution Report due by 2/10/03 ; Jury Selection set for 9:00 9/8/03 ; Jury trial set for 9:00 9/8/03 signed by Judge David Briones (mt) (Entered: 01/15/2003)
7 Letter/Correspondence regarding: letter from the Court regarding courtroom protocol (mt) (Entered: 01/15/2003)
8 Notice of filing disclosure of interested parties by Equal Employment (mt) (Entered: 02/07/2003)
9 Alternate Dispute Resolution Report filed by Equal Employment, Union Pacific, Party(s) agree to Alternate Dispute Resolution (mt) (Entered: 02/10/2003)
10 ORDER case referred to Alternate Dispute Resolution Mediation completed by: 4/18/03 Neutral Selection by: 4/18/03 signed by Judge David Briones. If deft. does not accept plaintiff's pending settlement offer, not later than 4/4/03, the parties participate in mediation with: Enrique Pena, Texas Arbitration Mediation Services, Inc., 1444 Montana Ave., Suite 205, El Paso, Tx. 79902, 915-533-8267. (mt) (Entered: 02/12/2003)
11 Motion by Demarco W. Howard to intervene (mt) Modified on 03/12/2003 (Entered: 03/12/2003)

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03/27/2003 03/28/2003
03/28/2003 03/28/2003 04/01/2003 04/01/2003 04/07/2003 04/07/2003 04/09/2003 04/18/2003 05/23/2003 06/11/2003
06/16/2003
06/16/2003 07/16/2003 07/18/2003 07/21/2003 07/21/2003 07/24/2003

12 Motion by Equal Employment to substitute attorney Enrique Chavez, Jr. for Francisco X. Dominguez (mm1) (Entered: 03/28/2003)
13 Order granting motion to substitute attorney Enrique Chavez, Jr. for Francisco X. Dominguez [12-1] ; terminated; Enrique Chavez Jr. added signed by Judge David Briones (mm1) (Entered: 03/28/2003)
14 Order granting the appearance of Mr. Enrique Chavez, Jr. signed by Judge David Briones (mm1) (Entered: 03/28/2003)
15 Notice of attorney appearance for Equal Employment by Enrique Chavez (mm1) (Entered: 03/28/2003)
16 Designation of expert witness filed by Equal Employment (em) (Entered: 04/01/2003)
17 Exhibit and witness list by Demarco Howard/ Equal Employment (em) (Entered: 04/01/2003)
18 Order granting motion for DeMarco Howard to intervene [11-1] signed by Judge David Briones (mt) (Entered: 04/08/2003)
19 Intervenor's complaint by DeMarco Howard against Equal Employment ) (mt) (Entered: 04/08/2003)
20 Answer by Union Pacific to intervenor complaint [19-1] (mt) (Entered: 04/09/2003)
21 Written status reporting the outcome of mediation by Equal Employment, Union Pacific, DeMarco Howard, Equal Employment (mt) (Entered: 04/18/2003)
22 Proposed / Witness List by Union Pacific (mm1) (Entered: 05/27/2003)
23 Joint motion by Equal Employment, Union Pacific to extend scheduling order so as to enlarge the dispositive motion deadline by one month (mt) (Entered: 06/11/2003)
24 Order granting joint motion to extend scheduling order so as to enlarge the dispositive motion deadline by one month [23-1] signed by Judge David Briones (mm1) (Entered: 06/17/2003)
25 Motion by Equal Employment to compel discovery (mt) (Entered: 06/17/2003)
26 Joint motion by Equal Employment, Union Pacific to extend scheduling order deadlines (mt) (Entered: 07/17/2003)
27 Order granting joint motion to extend scheduling order deadlines [26-1] signed by Judge David Briones (mm1) (Entered: 07/21/2003)
28 Motion by Union Pacific for summary judgment (em) (Entered: 07/21/2003)
29 Notice of filing by Union Pacific of Appendix to Defendant's Motion for Summary Judgment. (em) (Entered: 07/21/2003)
30 Motion by Equal Employment to extend time to respond to defts. summary judgment motion (mt) (Entered: 07/25/2003)

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08/01/2003 08/01/2003 08/01/2003 08/04/2003
08/05/2003 08/15/2003 08/19/2003 08/21/2003 08/25/2003 08/25/2003 09/12/2003 10/02/2003
10/03/2003 10/03/2003 10/03/2003 10/03/2003 10/03/2003 10/03/2003 10/03/2003 10/03/2003

31 Response by Equal Employment in opposition to motion for summary judgment [28-1] (mt) (Entered: 08/01/2003)
32 Appendix for in opposition response [31-1] by Equal Employment (mt) (Entered: 08/01/2003)
33 Response by Equal Employment in opposition to motion for summary judgment [28-1] (mt) (Entered: 08/01/2003)
34 Order granting motion to extend time to respond to defts. summary judgment motion by 8/31/03 [30-1] signed by Judge David Briones (jm) (Entered: 08/04/2003)
35 Supplemental motion by Union Pacific : supplementing motion for summary judgment [28-1] (mt) (Entered: 08/06/2003)
36 Motion by Union Pacific to extend reply brief deadline (mt) (Entered: 08/16/2003)
37 Order granting motion to extend reply brief deadline [36-1] signed by Judge David Briones time is extended to 9/12/03 (fe) (Entered: 08/19/2003)
38 Motion by Equal Employment to with draw its motion to compel (fe) (Entered: 08/21/2003)
39 Order granting motion to withdraw its motion to compel [38-1] signed by Judge David Briones (mt) (Entered: 08/26/2003)
Mooted motions motion to compel discovery [25-1] (mt) (Entered: 08/26/2003)
40 Deft. Union Pacific Railroad Company's Reply brief in support of its motion for summary judgment (mt) (Entered: 09/12/2003)
41 Order granting in part, denying in part supplemental motion supplementing motion for summary judgment [35-1], granting in part, denying in part motion for summary judgment [28-1] signed by Judge David Briones (mt) (Entered: 10/02/2003)
42 Motion by Union Pacific in limine (mt) (Entered: 10/05/2003)
43 Proposed / Witness List by Union Pacific (mt) (Entered: 10/05/2003)
44 Notice of filing proposed jury charge by Union Pacific (mt) (Entered: 10/05/2003)
45 Notice of filing porposed voir dire questions by Union Pacific (mt) (Entered: 10/05/2003)
46 Exhibit list by Union Pacific (mt) (Entered: 10/05/2003)
47 Notice of filing required pretrial filings, proposes voir dire questions and statement to be read to the jury, by Union Pacific (mt) (Entered: 10/05/2003)
48 Notice of filing proposed verdict form by Equal Employment, Equal Employment (mt) (Entered: 10/05/2003)
49 Notice of filing exhibit identification by Equal Employment, Equal Employment (mt) (Entered: 10/05/2003)

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10/03/2003 10/03/2003 10/03/2003 10/03/2003 10/03/2003 10/03/2003 10/03/2003 10/03/2003 10/03/2003 10/03/2003 10/07/2003 10/09/2003 10/14/2003 10/14/2003 10/24/2003 11/20/2003
12/17/2003 12/19/2003
01/16/2004

50 Notice of filing statement of claims by Equal Employment, Equal Employment (mt) (Entered: 10/05/2003)
51 Notice of filing proposed stipulated facts by Equal Employment, Equal Employment (mt) (Entered: 10/05/2003)
52 Notice of filing designation of trial witnesses by Equal Employment, Equal Employment (mt) (Entered: 10/05/2003)
53 Proposed Jury instructions by Equal Employment, Equal Employment (mt) (Entered: 10/05/2003)
54 Notice of filing witnesses whose testimony may present by means of a deposition by Equal Employment, Equal Employment (mt) (Entered: 10/05/2003)
55 Notice of filing porposed voir dire questions by Equal Employment, Equal Employment (mt) (Entered: 10/05/2003)
56 Motion by Equal Employment, Equal Employment in limine (mt) (Entered: 10/05/2003)
57 Notice of filing estimate of trial length by Equal Employment, Equal Employment (mt) (Entered: 10/05/2003)
58 Joint motion by Equal Employment, Union Pacific to continue trial (mt) (Entered: 10/05/2003)
59 Memorandum by Equal Employment in support of motion in limine [56-1] (mt) (Entered: 10/05/2003)
60 Order granting joint motion to continue trial [58-1] Jury trial 8:30 12/8/03 signed by Judge David Briones (mt) (Entered: 10/07/2003)
61 Motion by Equal Employment for clarification (mt) (Entered: 10/10/2003)
62 Response and Objections by Equal Employment to motion in limine [42-1] (mt) (Entered: 10/15/2003)
63 Written Objections by Equal Employment, Equal Employment to jury instructions [53-1] (mt) (Entered: 10/15/2003)
64 Amended Order granting in part, denying in part motion for summary judgment [28-1] signed by Judge David Briones (mt) (Entered: 10/24/2003)
65 Order vacating non-jury trial of 12/8/03 and ordering proposed dismissal of this cause on or before 12/17/03 signed by Judge David Briones (dl1) (Entered: 11/21/2003)
66 Joint motion by Union Pacific, Equal Employment, DeMarco Howard for extension of time to file proposed dismissal (jm) (Entered: 12/17/2003)
67 Order granting joint motion for extension of time to file proposed dismissal [66-1] (Parties file a proposed dismissal of this cause on or before 1/17/04) signed by Judge David Briones (jm) (Entered: 12/19/2003)
68 Joint motion by Equal Employment, DeMarco Howard, Union Pacific to enter consent decree (jm) (Entered: 01/16/2004)

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01/29/2004 02/02/2004 02/02/2004 02/02/2004

69 Joint motion by Equal Employment, Union Pacific, DeMarco Howard to dismiss and for entry of Consent Decree (jm) (Entered: 01/29/2004)
70 Order granting joint motion to dismiss and for entry of Consent Decree [69-1] signed by Judge David Briones (jm) (Entered: 02/03/2004)
71 Consent decree for Equal Employment against Union Pacific signed by Judge David Briones ) (jm) (Entered: 02/03/2004)
Case closed (jm) (Entered: 02/03/2004)

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 EEOC LITIGATION SETTLEMENT REPORT - FEBRUARY 2004

http://www.eeoc.gov/litigation/settlements/settlement02-04.html

EEOC v. Union Pacific Railroad Co. No. EP-02-CA-0445-DB (W.D. Tex. Feb. 2, 2004)
The San Antonio District Office filed this Title VII race discrimination lawsuit against defendant, a railroad, because it terminated charging party, an African American switchman/brakeman/conductor, for allegedly lying on his job application about his criminal background but did not terminate non-black employees who actually lied on their applications. According to charging party, when he applied for employment defendant's interviewer asked him whether he had ever been convicted of a felony or misdemeanor. Charging party answered "no" to the question even though he had been convicted of misdemeanor theft. Charging party had initially checked "yes," but after explaining to his interviewer that his guilty plea resulted in his being placed on probation and a dismissal and discharge of the theft charge once he completed probation, the interviewer told him to check the "no" box. Charging party's application showed that there is a mark in both the "yes" and "no" boxes. Further, documents revealed that at least three non-African American employees had checked "no" in response to the conviction question even though they had felonies or misdemeanors on their records, and they were not fired.
In accordance with a two-year consent decree, defendant is required to pay $84,000 to charging party, who had been reinstated to his job (without back pay) through defendant's internal complaint process approximately 20 months after his discharge. Defendant is enjoined from terminating the employment of any African American employee on the basis of his or her race and from retaliation. In addition, on an annual basis, defendant must mail or e-mail copies of its EEO policies to its employees in the El Paso, Texas Transportation Department and provide EEO training to its managerial and supervisory employees that explains the damaging effects of race discrimination and retaliation.

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