1

At the time the challenged actions transpired, Casarez was working

for The Atchison, Topeka & Santa Fe Railway Company. Subsequently, that

entity merged with Burlington Northern. For convenience, we refer to

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-11135

 

RICHARD CASAREZ,

Plaintiff-Appellant,

v.

BURLINGTON NORTHERN/SANTA FE COMPANY,

Defendant-Appellee.

_______________________________

Appeal from the United States District Court

for the Northern District of Texas

_______________________________

October 18, 1999

Before JOLLY, BARKSDALE and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellant Richard Casarez (“Casarez”) appeals the district

court’s judgment as a matter of law in favor of appellee

Burlington Northern/Santa Fe Company (“Santa Fe”). We AFFIRM

the district court’s grant of judgment as a matter of law on the

retaliation issue, REVERSE on the discrimination claim and REMAND

for a new trial on the merits.

I. Factual and Procedural Background

Casarez, who is Hispanic, had worked at Santa Fe,1 for 20
Casarez’s former employer as “Santa Fe.”

2

The district court sustained Santa Fe’s objection to Casarez’s

attempt to show that the assistant superintendent from Houston, Mr. Hopper,

was Caucasian.

2

years, receiving positive evaluations and performance-based

bonuses, when Santa Fe promoted Casarez to the position of

assistant superintendent in Euless, Texas on April 1, 1993. This

management job entailed significant responsibilities and made

Casarez second-in-command of the North Texas Division. Casarez’s

February, 1994 performance appraisal stated that he “met

expectations,” was “very safety motivated,” “works long hours as

needed,” and “has good knowledge of the rules/train operations.”

The following month, Santa Fe transferred Ronald Jackson

(“Jackson”), Casarez’s supervisor, to Illinois; Lewis Rees

(“Rees”) replaced Jackson as the superintendent of the North

Texas Division on March 16, 1994. The next day, Santa Fe posted

a notice requesting applications for the job of assistant

superintendent in Euless, Texas, a position held on that date by

Casarez.

Approximately one week after beginning work in Texas, Rees

went on vacation. Instead of leaving Casarez in command, as had

been the practice under Jackson, Rees brought in an assistant

superintendent from Houston.2

On March 31, 1994, fifteen days after Rees replaced Jackson

as superintendent, Rees drafted a memorandum criticizing

Casarez’s performance and purporting to place him on probation. 
3

Rees never showed this memorandum to Casarez, and, although he

deposited the memorandum in Casarez’s personnel file, Rees never

placed Casarez on probation; indeed, Rees never gave Casarez any

written or verbal warning before firing him on April 25, 1994.

On April 1, 1994, the Alliance facility opened. Alliance

was a $100,000,000 state-of-the-art train yard in which Santa Fe

consolidated a number of its operations in North Texas. Though

he was second-in-command of the North Texas Division, Casarez was

not on the Alliance planning committee, and Rees barred him from

the safety committee. Moreover, Santa Fe did not move Casarez’s

computer to Alliance; when Casarez tried to use his subordinate’s

computer at Alliance, Rees told him to work elsewhere. 

During the opening days of Alliance, Rees sent Casarez on a

number of peculiar assignments. He directed Casarez to watch

workers fix a sunkink–something about which Casarez knew little

and had no authority to manage–on the very night Alliance opened. 

Rees dispatched Casarez to inspect the backs of chairs to ensure

that they were safe to sit on. And Rees told Casarez to travel

to Dallas to watch workers repair a derailment on a spur track. 

Additionally, though none of the other assistant superintendents

worked shifts, Rees ordered Casarez to work nights. Further, and

unlike other assistant superintendents, Rees required Casarez to

stay on his shift until someone relieved him.

Rees then transferred Casarez to Zacha Junction, where 
4

Casarez’s mandate was to speed up the departure of the trains. 

Though the train cars must be in a particular order when they

carry hazardous materials, Casarez found that the lists provided

to him of the train cars were repeatedly incorrect, a problem

whose repair necessitated additional time-consuming labor.

On April 18, 1994, Casarez complained of race discrimination

to Carol Beerbaum, who worked in Santa Fe’s Human Resources

department. That same day, Rees and Audrey Rierson (“Rierson”)

confronted Casarez about a “blue flag” violation. A blue flag on

a train designates that workers are on, under or between moving

parts, and that the train cannot be moved except in certain

circumstances. Neither Rees nor Rierson could tell Casarez the

date, engine or train on which this alleged violation occurred,

but Casarez thought they might be referring to an incident

involving train T-ALLA-1-14 on April 14, 1994. Upon reviewing

that train’s records, Casarez ascertained that no blue flag had

been requested. When Casarez reported this to Rierson, Rierson

told him not to worry because there had never been a blue flag.

Casarez was due to be promoted on April 24, 1994. The

following day, Rees fired Casarez. Rees told Casarez that he was

firing him for three reasons: (1) a lack of leadership skills and

poor attendance during the opening of Alliance; (2) the “blue

flag” violation; and (3) complaints Rees received about Casarez’s

conduct at Zacha Junction.
5

Casarez filed suit in the Western District of Texas in

April, 1996. Pursuant to Santa Fe’s motion, the court

transferred venue to the Northern District of Texas. The

district court held a trial on September 8 and 9, 1997. At the

close of Casarez’s case-in-chief, the district court granted

Santa Fe’s Federal Rule of Civil Procedure 50(a) motion for

judgment as a matter of law.

Casarez timely filed his appeal.

II. Standard of Review

 We review de novo a district court’s decision to grant

judgment as a matter of law pursuant to Rule 50(a). See Murray

v. Red Kap Indus., 124 F.3d 695, 697 (5th Cir. 1997). Judgment

as a matter of law is proper where “there is no legally

sufficient evidentiary basis for a reasonable jury to find for

[a] party.” Fed. R. Civ. Proc. 50(a)(1). Of course, “we view

the entire trial record in the light most favorable to the nonmovant, drawing reasonable inferences in its favor.” Burch v.

Coca-Cola Co., 119 F.3d 305, 313 (5th Cir. 1997). 

We test the sufficiency of the evidence under the standard

enunciated in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969)

(en banc), overruled on unrelated grounds, Gautreaux v. Scurlock

Marine, Inc., 107 F.3d 331, 336-38 (5th Cir. 1997) (en banc),

which is the same standard the district court employs. See Atkin

v. Lincoln Property Co., 991 F.2d 268, 270 (5th Cir. 1993). 
3

Though Casarez has asserted claims under both Title VII and 42

U.S.C. § 1981, “the elements of both claims are identical.” Anderson v.

Douglas & Lomason Co., Inc., 26 F.3d 1277, 1284 n.7 (5th Cir. 1994). 

“Therefore, we employ only one analysis in evaluating the [appellant’s] Title

VII and § 1981 claims.” Id.

6

Under Boeing, “[t]here must be a conflict in substantial evidence

to create a jury question.” 411 F.2d at 375. Substantial

evidence is “evidence of such quality and weight that reasonable

and fair-minded men in the exercise of impartial judgment might

reach different conclusions.” Id. at 374; see also Krystek v.

University of S. Mississippi, 164 F.3d 251, 255 (5th Cir. 1999). 

III. Race Discrimination Claims 

Under the McDonnell Douglas-Burdine framework,3 the parties

dance an adversarial three-step, in which: (1) the plaintiff

proves his prima facie case by a preponderance of the evidence;

(2) the defendant rebuts the presumption of intentional

discrimination arising from the prima facie case by articulating

legitimate, non-discriminatory reasons for the challenged action;

and (3) the plaintiff counters by offering evidence that the

legitimate, non-discriminatory reasons are really a pretext for

discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 506-08 (1993); see also Rhodes v. Guiberson Oil Tools, 75

F.3d 989, 992 (5th Cir. 1996) (en banc); Walton v. Bisco Indus.,

Inc., 119 F.3d 368, 370 (5th Cir. 1997).

In Rhodes, we held that even if a plaintiff offered evidence

of pretext, a verdict in his favor would still be subject to
7

sufficiency of the evidence review. 75 F.3d at 993. We

distilled this holding in the following two prong test: whether

“the evidence taken as a whole (1) creates a fact issue as to

whether each of the employer’s stated reasons was what actually

motivated the employer and (2) creates a reasonable inference

that [race] was a [motivating] factor in the actions of which the

plaintiff complains.” Id. at 994. 

The district court acknowledged that Casarez proved his

prima facie case by a preponderance of the evidence. Santa Fe,

in turn, carried its burden by articulating, in the pre-trial

order, three legitimate, non-discriminatory reasons for firing

Casarez: (1) Casarez’s poor leadership and absences from work;

(2) the “blue flag” incident; and (3) complaints Rees received

about Casarez’s work at Zacha Junction. At that point in the

case, the presumption of intentional discrimination arising from

Casarez’s prima facie case disappeared. But Casarez offered

evidence of pretext. First, he claimed he was not absent from

work during the opening days of Alliance; on the contrary, he

testified that he worked 10 and 12 hour days. Though Rees did

not see Casarez, had he needed him, Rees could have contacted

Casarez by radio, beeper or telephone, but he did not. Moreover,

Casarez argued that he had no chance to demonstrate leadership,

as Rees refused to leave Casarez in charge while he was on

vacation, and because Rees assigned him menial tasks to perform.
8

Second, Casarez argues that the “blue flag” incident never

happened. Casarez testified that he never saw a blue flag on the

train. He further testified that records required to be kept by

federal law revealed that no one requested a blue flag on the

train. Additionally, he insists that despite the absence of the

blue flag, he never ordered the trains to move.

Finally, Casarez maintains that he had no altercations with

workers at Zacha Junction. Rees never told him that complaints

had been made about him, and no investigation ever occurred. In

short, Casarez has offered evidence sufficient to show that Rees

could not have been motivated by the reasons he gave for firing

Casarez because those reasons were groundless. We therefore hold

that Casarez has met the first prong of the Rhodes inquiry.

We now consider whether the evidence creates an inference

that race was a motivating factor in Santa Fe’s firing of

Casarez. We have held that “[t]he evidence necessary to support

an inference of discrimination will vary from case to case. A

jury may be able to infer discriminatory intent in an appropriate

case from substantial evidence that the employer’s proffered

reasons are false.” Rhodes, 75 F.3d at 994. Just as evidence of

pretext coupled with evidence of Rhodes’ skill as a salesman

satisfied this prong in Rhodes, see 75 F.3d at 996, Casarez has

surmounted this hurdle with evidence that Santa Fe’s stated

reasons for firing him were false coupled with his own good work
9

record. However, even if Casarez’s showing in this regard were

not sufficient, a further consideration of all the facts viewed

in a light most favorable to Casarez would likewise satisfy the

intent inquiry. In addition to showing that Santa Fe’s

articulated reasons were false, Casarez also showed that he was

subjected to multiple instances of being treated differently from

similarly situated Caucasian assistant superintendents: he was

assigned menial tasks, he was forced to work nights, he was not

permitted to leave work until he was relieved by someone else, he

was not permitted to take time off to visit his ailing mother in

El Paso, he was ostracized from the planning committee for

Alliance and from the safety committee, and he was transferred to

Zacha Junction where he was isolated from his subordinates. 

Moreover, and significantly, Rees appeared to desire Casarez’s

departure from the very beginning of their working together. The

day after Rees began work, Santa Fe posted as open a job meeting

the description and location of Casarez’s. Rees told Casarez to

“fix [his] English,” when viewing a report Casarez prepared on

which nothing was incorrect. And on March 31, 1994, before any

of Casarez’s alleged job failings manifested, Rees drafted a

memorandum chastising Casarez and purporting to place him on

probation. Finally, the key figure in firing Casarez, Rees, was

Caucasian, and Casarez’s replacement, Marc Stephens, was also
4

Casarez sought to introduce evidence proving: (1) that he was the

only Hispanic manager in his division; (2) that the man who replaced Marc

Stephens (and the man who replaced the replacement) were Caucasian; (3) that,

between 1993 and 1995, assistant superintendent positions company-wide

increased from 27 to 48, but the number of Hispanics filling those jobs

decreased from 5 to 0; and (4) that Santa Fe’s upper management is wholly

Caucasian. The district court sustained Santa Fe’s objections to each of

these proffers. 

Because we remand for a new trial on other grounds, the outcome of this

case does not turn on the propriety of these evidentiary rulings, and we do

not reach that question. Nevertheless, we observe that “[p]roof that [a] work

force was racially balanced or that it contained a disproportionately high

percentage of minority employees is not wholly irrelevant on the issue of

intent[.]” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 580 (1978)

(Rehnquist, J.). The inverse proposition–proof of racial imbalance or a

dearth of minorities is not wholly irrelevant to intent–is likewise true. See

Walls v. Mississippi State Dept. of Pub. Welfare, 730 F.2d 306, 316 (5th Cir.

1984) (taking into account that “[t]he racial composition of classified

positions requiring the educational minimums was primarily white”); Pouncy v.

Prudential Ins. Co. of America, 558 F.2d 795, 802 (5th Cir. 1982) (“[W]e may

infer racial discrimination if gross statistical disparities in the

composition of an employer’s work force can be shown.”). We emphasize that

this is a disparate treatment–not disparate impact–case, and that Casarez is

not trying to use evidence of racial composition to make his prima facie

claim. Rather, he is trying to demonstrate that an inference of racial

discrimination is reasonable. Evidence of Santa Fe’s racial composition is

relevant to that endeavor.

10

Caucasian.4 These facts taken together are sufficient to allow a

reasonable jury to draw the inference that Rees was motivated by

race when he fired Casarez.

Because we find that Casarez had offered proof sufficient to

create a fact issue as to whether Rees was actually motivated by

the reasons he articulated for firing Casarez, and further that

these facts create a reasonable inference that race was a

motivating factor in Rees’ decision to fire Casarez, we hold that

the district court erred when it granted Santa Fe’s Rule 50(a)

motion for judgment as a matter of law as to the Title VII and §

1981 discrimination claims. We therefore remand for a new trial

on the merits.
11

IV. Retaliation Claim

To establish a prima facie case of retaliation, Casarez must

show: (1) that he engaged in activity protected by Title VII; (2)

that an adverse employment action occurred; and (3) that a causal

link existed between the participation in the protected activity

and the adverse employment action. See Holt v. JTM Indus., 89

F.3d 1224, 1225-26 (5th Cir. 1996). Casarez must demonstrate

that, but for the protected activity, he would not have

confronted the adverse employment action. Long v. Eastfield

College, 88 F.3d 300, 305 n.4 (5th Cir. 1996).

Casarez’s complaints to the EEOC and subsequent suit are

protected activity, a point Santa Fe does not dispute. Casarez

alleges that, as a result of his protected activity, Santa Fe

refused to rehire him for management positions. Santa Fe

counters, and we agree, that Casarez has failed to demonstrate

the existence of a causal link between the protected activity and

the adverse employment action. Though Casarez presented evidence

from a human resources manager that Santa Fe will not rehire or

promote people who make complaints of race discrimination, her

testimony was hearsay, and Casarez has failed to proffer any

evidence that would support the existence of an official or de

facto policy of refusing to rehire employees who make complaints

of racial discrimination. Moreover, Casarez failed to identify

the individuals responsible for hiring those management positions
12

for which he applied; Casarez has not even shown that they were

aware that Casarez engaged in protected activity. We therefore

hold that the district court did not err when it granted judgment

as a matter of law to Santa Fe on the retaliation claim.

V. Transfer of Venue

Casarez additionally appeals the order transferring venue

from the Western District of Texas to the Northern District of

Texas. A transfer of venue is appropriate where it is convenient

for the parties and witnesses, and where the interests of justice

so require. 28 U.S.C. § 1404(a). “A motion to transfer venue is

addressed to the discretion of the trial court and will not be

reversed on appeal absent an abuse of discretion.” Peteet v. Dow

Chemical, 868 F.2d 1428, 1436 (5th Cir. 1989); see also United

States v. Gonzalez, 163 F.3d 255, 259 (5th Cir. 1998). Here, the

district court considered the following factors that favored

transferring the venue: (1) the challenged action occurred in

Tarrant County; (2) the majority of fact witnesses lived closer

to Fort Worth than to El Paso; (3) Santa Fe has its headquarters

in Fort Worth; (4) Casarez’s personnel files are in Fort Worth;

(5) Casarez has a home in Grapevine where his wife and children

live. The district court further observed that Casarez’s choice

of forum was an important consideration, but concluded that the

other factors outweighed it in this case. We hold that the

district court did not abuse its discretion, and we affirm its
13

transfer of venue.

VI. Conclusion

We hold that a fact issue sufficient to present to the jury

exists as to whether Rees’ articulated reasons for firing Casarez

were merely a pretext for discrimination. We therefore REVERSE

the district court’s grant of judgment as a matter of law on the

discrimination claim and REMAND for a new trial on the merits.

We further hold that Casarez failed to introduce evidence

sufficient to create a fact issue on the question of whether

Santa Fe retaliated against him. We therefore AFFIRM the

district court’s grant of judgment as a matter of law on the

retaliation issue.

Finally, we AFFIRM the district court’s transfer of venue.

PARTIALLY REVERSED, PARTIALLY AFFIRMED, and REMANDED.