Bennett v. Trinity Marine Products, Inc.
Filing
40
ORDER & REASONS granting in part and denying in part 21 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 9/18/2014. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RONALD H. BENNETT
CIVIL ACTION
v.
NO. 13-5816
TRINITY MARINE PRODUCTS, INC.
SECTION "F"
ORDER AND REASONS
Before the Court is Trinity Marine Products, Inc.'s moton for
summary judgment. For the reasons that follow, the motion is
GRANTED in part and DENIED in part.
Background
This employment discrimination lawsuit arises out of the
plaintiff's claims that, upon his return from taking medical leave
after suffering an aortic aneurysm, his former employer unlawfully
failed to reinstate him to his prior position and then fired him in
retaliation for exercising his rights under the Family and Medical
Leave Act.
Trinity Marine Products, Inc. manufactures barges used to
transport cargo on U.S. inland waterways.
Ronald H. Bennett began
working as a burner for Trinity at Plant 1038 in Madisonville,
Louisiana in 1979.
He gradually worked his way up to a management
1
position.1
Bennett was promoted to Production Manager in 2011 by
then-Plant Superintendent Sam Naramore, who at that time was also
Bennett's supervisor.2 In particular, Bennett was tasked with
managing the pipe and testing departments; he was responsible for
overseeing welders and pipe fitters. In early 2012 Bennett received
a "meets expectations" performance rating on his 2011 performance
evaluation from Naramore.
In September 2012 Rick Badon became the
new Plant Manager. Shortly thereafter, Badon demoted Naramore to a
Production Manager position due to performance-related issues.
After a company picnic on October 22, 2012 Bennett suffered an
aortic aneurysm.
As a result, he took leave authorized by the
1
Bennett had a break in his employment with Trinity from
1982, when the yard shut down, until 1991.
In 1991 Bennett
returned to work for Trinity as a plasma operator or burner.
In June 2011, Bennett worked as a Machine Operator Lead,
and he was promoted to supervisor. In November 2011, Bennett was
promoted to Production Manager in Trinity's pipe department.
2
Periodically throughout his employment, before he was
promoted to a manager, Bennett was written up or counseled for
performance issues and company policy violations:
•
on May 2, 2000 Bennett received a written warning for
carelessness/safety violations;
•
in February 2002 Bennett received a written warning for
poor performance;
•
in January 2005 Bennett was counseled for a layout error
and warned that demotion could result if errors
continued;
•
in June 2005 Bennett received a written warning notice
for "poor supervisor performance" and, consequently, was
reclassified from a supervisor to a lead position;
•
in August 2006 Bennett received a written warning for a
safety violation.
Except for the August 2006 warning, Bennett either does not recall
or disputes the allegations underlying each of these employment
notices.
2
Family and Medical Leave Act, starting at the end of October 2012.
While he was out on FMLA leave, Tim Gay (another Production
Manager) took over Bennett's responsibilities including managing
the pipe and testing departments.
Bennett
was
on
reorganization
in
leave,
which
In fact, during this time that
Plant
several
Manager
production
Badon
conducted
managers
were
a
re-
assigned to manage different departments.3
A few months later, Bennett's treating doctor released him to
return to work without restrictions; Bennett returned to Trinity in
February 2013.
Bennett resumed his prior position as Production
Manager, and his pay, benefits, and overall management duties
remained the same as those prior to his FMLA leave.
However, Tim
Gay continued to oversee Bennett's previously-assigned department,
the pipe department and, in part, the testing department. As
Production Manager, Bennett continued to bear responsibility for
managing
a
28-man
crew,
developing
budgets,
and
overseeing
completion of the barges for delivery; he was, however, tasked with
overseeing
different
departments,
the
cleaning
and
painting
departments, although he continued to manage the hydro and testing
3
This
re-organization
resulted
in
the
following
reassignments: (1) Production Manager Mac Cook, who previously
managed the Erection Station, was assigned to manage Shops #2 and
#3; (2) Production Manager Tim Gay, who previously managed Shops #2
and #3, was assigned to manage the pipe department and the Erection
Station; and (3) Production Manager Joey Hoover, who previously
managed the Trucks and Sterns department, was assigned to manage
Erection Station #2.
3
departments.4
After
Naramore
Bennett
as
Plant
returned
from
leave
Superintendent),
regarding his job performance.5
(after
Deese
Deese
counseled
replaced
Bennett
In particular, Deese complained
that barges were not being sufficiently cleaned, were not being
completed for on-time delivery, and that the proper procedures for
hydro testing were not being followed.
Bennett suggests that he
was not disciplined for these purported performance deficiencies,
and explains away these complaints as examples of him being
targeted for discipline for issues that were not his fault,
including because members of his crew were being reassigned to work
for other Production Managers, compromising Bennett's department's
ability to accomplish its tasks.6
In addition to these purported performance deficiencies,
Bennett was also reprimanded for failing to timely submit written
evaluations for his direct reports; submitting an evaluation for
one of his direct reports which contained grammatical errors and an
4
Bennett continued to have some responsibility over the
testing department.
5
In February 2013 Badon replaced Naramore with Kevin
Deese as the new Plant Superintendent; Deese reported directly to
Badon. As Plant Superintendent, Deese directly supervised
Production Managers like Bennett and Naramore.
6
As for Bennett's alleged failure to submit a written
plan outlining the proper procedures for hydro testing, Bennett
argues that the plan was unnecessary but that, in any event, Deese
proceeded to humiliate him due to the poor grammatical skills
exhibited in the partial plan he drafted.
4
allegedly improper comment regarding his subordinate's weight;
refusing to revise the evaluation and correct the errors; showing
a lack of professionalism at business meetings (taking personal
calls and checking facebook during meetings).
Bennett does not
deny that he was reprimanded for these issues. But he disputes the
merits of the underlying complaints, and explains: according to the
email reminding him to submit his performance evaluations, other
individuals had more evaluations outstanding than Bennett; the
comment in his evaluation regarding his subordinate's weight was
not improper because the workers work in confined spaces; managers
regularly use their cell phones on the job and Bennett used his
cell phone for proper purposes (to communicate with his crew) and
was never disciplined.
On June 26, 2013 Bennett was issued an Employee Action Plan,
which listed Bennett's purported performance deficiencies, noted
his failure to utilize his crew efficiently, and cautioned "we are
placing you on an action plan, we MUST see immediate improvement in
key areas [outlined in the plan]." Bennett admits to receiving the
Action
Plan,
but
again
disputes
his
responsibility
for
the
purported deficiencies it outlines.
Early on the morning of July 16, 2013, one of Bennett's direct
reports, Roy Priser, was scheduled to work, but called in sick,
stating that he had a kidney stone. (Bennett does not dispute that
Priser was scheduled to work but called in sick.)
5
Bennett entered
a payroll code of "No Work - Not Dispatched", a code which
indicated that Priser was not on the July 16 schedule; as such, the
day
would
not
consideration.
be
counted
against
Priser
in
terms
of
bonus
According to formal company policy, this was a
falsification related to payroll or time-keeping, which is a major
infraction and first-time terminable offense.7
Two days later on July 18 Bennett was placed on suspension
pending
investigation.
Four
days
later
on
July
22
Trinity
terminated Bennett's employment based on his poor performance and
his failure to improve under the terms of the Employee Action
7
For his part, Bennett responds that informal Trinity
policy sanctioned his use of the No Work – Not Dispatched code
under the circumstances. Bennett testified:
these guys are working six, seven days a week,
no time off, 12, 13 hours a day, trying to get
these barges on the water ready for inspection
and sales. And when they ask for a day off or
they call in and say, "Look, I ain't going to
make it," I say "I put you in a no work
scheduled day, no dispatch."
When asked "what does company policy say about that?" Bennett
responded "They told me I could do that." Bennett explained, by
way of sworn statement issued after his deposition, that Dennis
Brewster, Sam Naramore, and Ben McHughes all told him that, if an
employee requested time off, he should mark the employee as not
being dispatched. On the other hand, Priser testified:
Q.
Are you aware of any reason why Mr.
Bennett would have coded you as no work, not
dispatched?
A.
[F]rom time to time, if we, you know,
didn't have any work, they would – they would
code us a no workday and that way the time off
didn't count against you.
Q. Would that have applied in that particular
situation?
A. No, ma'am.
6
Plan.8 Rick Badon made the decision to fire Bennett based on the
information and documents provided by Kevin Deese and HR Manager
Diane Boudreaux.
Trinity did not hire anyone in place of Bennet;
rather, Tim Gay subsumed Bennett's duties and took over managing
the departments previously managed by Bennett.9
On September 12, 2013 Bennett sued Trinity, alleging claims
under the Family Medical Leave Act as well as state law-based
disability and age discrimination claims. Trinity now seeks summary
judgment in its favor dismissing all claims.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.
See Matsushita Elec. Indus. Co.
v. Zenith Radio., 475 U.S. 574, 586 (1986).
A genuine dispute of
fact exists only "if the evidence is such that a reasonable jury
8
Bennett says that this stated reason for termination is
pretextual. While Bennett was still employed at Trinity, Naramore
also took FMLA leave starting in May 2013, and he returned as a
Production Manager in August 2013. In April 2014 Naramore took a
second FMLA leave. To date, Naramore remains employed by Trinity
as a Production Manager.
9
Bennett submits that, once he was fired, Trinity
outsourced the cleaning responsibilities as it had before he took
leave and, thus, no Trinity Production Manager was responsible for
managing that department.
7
could return a verdict for the non-moving party."
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.
See
id.
Therefore,
"[i]f
the
evidence
is
merely
colorable, or is not significantly probative," summary judgment is
appropriate.
Id. at 249-50 (citations omitted).
Summary judgment
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
party.
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
his claims.
Id.
Hearsay evidence and unsworn documents that
cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.
Martin v.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed.R.Civ.P. 56(c)(2).
Finally, in evaluating the summary
judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.
Anderson, 477 U.S. at 255.
II.
A.
The Family and Medical Leave Act of 1993 entitles eligible
employees to take reasonable leave for personal or family medical
8
reasons.
28
U.S.C.
§
2601(b)(2).10
prescriptive and proscriptive rights:
The
FMLA
creates
distinct
first, the FMLA protects
employees from interference with their entitlements under the Act11
and, second, it protects them from discrimination or retaliation
for exercising their right to take leave under the Act.12 See Haley
v. Alliance Compressor, LLC, 391 F.3d 644, 649 (5th Cir. 2004).
An employee pursuing an entitlement or interference claim
under the first provision of the FMLA may challenge the employer's
failure to return him to the position he held before taking leave.
Section 2614 confers on eligible employees this substantive right
to be returned to the same or equivalent position:
[A]ny eligible employee who takes leave under section
2612 of this title for the intended purpose of the leave
shall be entitled, on return from such leave-(A) to be restored by the employer to the position of
employment held by the employee when the leave commenced;
or
(B) to be restored to an equivalent position with
equivalent benefits, pay, and other terms and conditions
of employment.
10
The Act guarantees eligible employees to take up to 12
weeks of leave from work in any 12 month period in the event that,
for example, the employee requires treatment for a "serious health
condition." 29 U.S.C. § 2612(a)(1)(D).
11
29 U.S.C. § 2615(a)(1)(substantive entitlement or
interference provision: "It shall be unlawful for an employer to
interfere with, restrain, or deny the exercise of or the attempt to
exercise, any right provided under this subchapter.").
12
29 U.S.C. § 2615(a)(2)(discrimination or retaliation
provision: "It shall be unlawful for any employer to discharge or
in any other manner discriminate against any individual for
opposing any such practice made unlawful by this subchapter.").
9
29 U.S.C. § 2614(a).
Of course, this entitlement is not without
limits: "[a]n employee is not entitled to 'any right, benefit, or
position of employment other than any right, benefit, or position
to which the employee would have been entitled had the employee not
take the leave.'" Silva v. City of Hidalgo, Tex., --- Fed.Appx. --, 2014 WL 3511685, at *3 (5th Cir. Jul. 17, 2014)(citations
omitted);
29
U.S.C.
2614(a)(3)(noting
employee entitlements).
limitation
on
restored
Unlike in discrimination cases, "[a]n
employer must honor entitlements, and cannot defend by arguing that
it treated all employees identically." Mauder v. Metropolitan
Transit Authority of Harris County, Tex., 446 F.3d 574, 580 (5th
Cir. 2006)(citing Nero v. Indus. Molding Corp., 167 F.3d 921, 927
(5th Cir. 1999)). Furthermore, unlike discrimination or retaliation
claims, entitlement claims are resolved without regard to the
employer's intent.
See Nero, 167 F.3d at 927 ("Because the issue
is the right to an entitlement, the employee is due the benefit if
the statutory requirements are satisfied, regardless of the intent
of the employer.").13
13
"[C]laims that arise from the deprivation of a FMLA
entitlement do not require a showing of discriminatory intent,
whereas claims that arise from alleged retaliation for an
employee's exercise of FMLA rights do." Cuellar v. Keppel Amfels,
LLC, 731 F.3d 342, 349 (5th Cir. 2013)(Elrod, J., specially
concurring to address "the issue on which the district court ruled
and that the parties extensively briefed on appeal[:] whether a
plaintiff must prove that the defendant acted with discriminatory
intent to succeed on a claim for 'interference' with an FMLA
entitlement")(emphasis in original).
10
When
a
provision
plaintiff
--
the
invokes
right
to
the
be
second,
free
from
proscriptive
discrimination
FMLA
or
retaliation for having exercised the right to take FMLA leave -absent direct evidence of discrimination or retaliation, courts
apply the familiar McDonnell Douglas burden-shifting regime applied
in the Title VII anti-discrimination and anti-retaliation context.
See Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 768 (5th
Cir. 2001).
According to McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), the plaintiff must first make a prima facie case,
then the burden shifts to the defendant to articulate a legitimate
non-discriminatory
or
non-retaliatory
reason
for
the
adverse
employment action, and then if the defendant satisfies that burden
of production, then the burden shifts back to the plaintiff, who
must prove by a preponderance of the evidence that the proffered
reason is pretextual. To make a prima facie case of discrimination
or retaliation under the FMLA, the plaintiff must show that: (1) he
was protected under the FMLA; (2) he suffered an adverse employment
action; and either (3a) he was treated less favorably than a
similarly situated employee who had not requested FMLA leave; or
(3b) that the adverse employment action was made because he took
FMLA leave.
Hunt, 277 F.3d at 768.
B.
Trinity seeks judgment as a matter of law dismissing Mr.
Bennett's FMLA entitlement and retaliation claims.
11
1.
Entitlement Claim, 29 U.S.C. § 2615(a)(1)
Insofar as the plaintiff presents an FMLA entitlement claim,
the Court's task is to determine whether or not Bennett was
returned to an equivalent position once he returned from medical
leave.
The plaintiff contends that being put in charge of the
paint and cleaning crew departments was a fundamentally different
assignment than being in charge of the pipe department. Trinity
counters that Bennett was returned to an equivalent position,
Production Manager, when he returned from medical leave, and that
his new departmental assignment did not violate FMLA where, as
here, it was part of a reorganization in which several other
production managers were assigned to manage new departments.
The
Court agrees.
To succeed on his entitlement theory, Bennett must show that
Trinity failed to restore him "to an equivalent position with
equivalent employment benefits, pay, and other terms and conditions
of employment."
29 U.S.C. § 2614(a)(1)(B).
To be equivalent, the
Department of Labor regulations require that the employee's new
position must be
one that is virtually identical to the employee's former
position in terms of pay, benefits and working
conditions, including privileges, perquisites and status.
It must involve the same or substantially similar duties
and responsibilities, which must entail substantially
equivalent skill, effort, responsibility, and authority.
29 C.F.R. § 825.215(a).
However, the employer's obligation to
reinstate eligible employees to "virtually identical" positions
12
"does not extend to de minimis, intangible, or unmeasurable aspects
of the job." 29 C.F.R. § 825.215(f).
Viewed in the light most favorable to Bennett, the summary
judgment record shows, at most, de minimis changes to his position
at Trinity. Upon his return from leave, Bennett kept his title; he
remained a Production Manager. As before, he was still responsible
for the testing and hydro departments, as well as overseeing barge
delivery.
But, in place of managing the pipe department, Bennett
was tasked with managing the paint and cleaning departments.
Although Bennett disliked being newly assigned to manage the paint
and cleaning departments, he does not dispute that his overall
management duties remained the same: he continued to be responsible
for overseeing direct reports, developing budgets, overseeing barge
delivery, testing vessels. Likewise, his pay and his benefits were
not changed.14
Trinity points out that Bennett concedes that his
overall pre-leave duties involved "cosmetic work[,] mak[ing] sure
everything was tidy and done and ready and sold".
That his post-
leave responsibilities included overseeing "painting, testing, and
finishing
barges
at
the
end
of
the
assembly
line"
seem
substantially similar responsibilities, or at least only negligibly
different.
On this record, the plaintiff has failed to raise a
14
In his opposition papers, Bennett suggests that his
hours and responsibilities changed when he returned from leave.
But he fails to point to any support in the record.
And the
portions of his own deposition testimony cited by the defendants
belie Bennett's suggestion.
13
genuine dispute as to the material fact regarding the equivalency
of his pre-leave and post-leave Production Manager position at
Trinity.
Even if the plaintiff somehow persuaded the Court that he was
not returned to an equivalent position, the plaintiff nevertheless
fails to establish that Trinity's decision to assign Bennett to
manage a different department violated his right to reinstatement
under the FMLA.
Critically, "the reinstatement privilege is not
unlimited." Forbes v. Unit Texas Drilling, L.L.C., 526 Fed.Appx.
376, 380 (5th Cir. 2013).
In fact, 29 U.S.C. § 2614(a)(3) makes
clear that an employee is not entitled to "any right, benefit, or
position of employment other than any right, benefit, or position
to which the employee would have been entitled had the employee not
taken the leave." 29 U.S.C. 2614(a)(3)(B). The defendant contends,
and the record confirms, that the decision to assign Bennett
different
departments
to
manage
was
part
of
an
overall
reorganization that occurred when Bennett was out on leave.
That
other Trinity Production Managers were likewise reassigned to
manage departments that they had not previously managed, pursuant
to the overall reorganization effort orchestrated by Rick Badon,
undermines Bennett's argument that he was categorically entitled to
be restored to Production Manager over his preferred departments
only.
Bennett fails to identify any record evidence that would
support a finding that, had he not taken leave, he would have been
14
entitled to remain Production Manager over the pipe department in
spite
of
plant-wide
reorganization.
Trinity
is
entitled
to
judgment as a matter of law on Bennett's entitlement claim.
2.
Retaliation Claim, 29 U.S.C. § 2615(a)(2)
Bennett also advances a discrimination or retaliation claim.
Bennett insists that his supervisor sabotaged his ability to manage
the cleaning crew, which allowed Trinity to "paper his file" with
exaggerated performance issues, after which time Trinity suspended
him for following unofficial policy and, ultimately, terminated him
under the guise of bogus performance issues.
He contends that he
has proved his prima facie case, and that he has at least raised a
fact
issue
concerning
whether
Trinity's
terminating his employment was pretextual.
stated
reason
for
Trinity counters that
the plaintiff cannot establish the third element of his prima facie
case of FMLA discrimination or retaliation (that he was fired
because of his leave; or disparate treatment) and that, even if he
can, there is no evidence in the record of pretext.
Finding fact
issues remain in dispute, the Court disagrees.
(a)
The third element of the prima facie case
The parties agree that, where there is no direct evidence of
discrimination or retaliation, the Court applies the McDonnell
Douglas burden-shifting framework.15
15
Here, there is no dispute as
Bennett alludes to direct evidence that Bennett was
targeted for termination while he was on FMLA leave.
In
particular, he suggests that former employee Grady Melton testified
15
to the first two elements of Bennett's prima facie case: Bennett
was protected under the FMLA and he suffered an adverse employment
action when his employment was terminated.16 Trinity does, however,
dispute the plaintiff's ability to prove the third element, either
that he was treated less favorably than a similarly situated
that he talked to several managers, including Rick Badon, about
Bennett's condition while Bennett was out on leave, and that Badon
told Melton that they would have to "purge" Bennett when he
returned from leave. At best, the plaintiff embellishes the link
between the "purge" comment and his FMLA leave; when placed in
context, the portions of the record cited by Bennett are not so
sinister as to directly prove his retaliation claim. Indeed, Melton
testified that he himself expressed concern with Bennett's physical
abilities once Bennett returned; he states that he was told by
Badon, in response to his concerns, "I guess we'll just have to
purge him then." Badon told Melton "if [Bennett] can't [do the
job] then we'll just get rid of him." However, later placing these
comments by Badon in context, Melton conceded that the comments
were made "in the context of if Mr. Bennett didn't do his job", and
that Badon made similar comments with respect to other Production
Managers as well. In any event, like Trinity, Bennett urges the
Court to apply the familiar burden-shifting framework; on this
record, Bennett wisely seeks to satisfy his prima facie showing
through circumstantial evidence of disparate treatment, rather than
attempting to anchor his retaliation claim solely to so-called
direct proof of discriminatory or retaliatory animus. It is also
notable that Bennett does not urge application of the mixed-motive
framework. The Fifth Circuit has not determined whether the Supreme
Court's analytical approach in University of Texas Southwestern
Medical Center v. Nassar, U.S. , 133 S.Ct. 2517 (2013) and Gross v.
FBL Financial Services, Inc., 557 U.S. 167 (2009) -- which have
limited the applicability of the mixed-motive framework in Title
VII and ADEA claims -- applies to FMLA retaliation claims and, if
so, whether it requires a plaintiff to prove but-for causation.
See Ion v. Chevron USA, Inc., 731 F.3d 379, 389-90 (5th Cir. 2013).
Nor must this Court decide, as neither party urges application of
the mixed-motive framework to the summary judgment record.
16
Bennett also contends that he suffered an additional,
but related, adverse employment action: that he was targeted for
termination and set up to fail in being assigned the cleaning crew.
16
employee that had not requested leave, or that he was (set up to
fail and ultimately) fired because he requested and took leave.
Trinity
downplays
those
portions
of
the
record
that
support
Bennett.
Viewing the record in the light most favorable to Benett,
there is a factual controversy that precludes summary judgment in
Trinity's favor on this third element of Bennett's prima facie
case.
Trinity points out, and the record supports, that more than
one Production Manager was assigned a new or different department
as part of a reorganization.
But Bennett finds support in the
record for his theory underlying his prima facie case: that while
he was out on leave, there was talk among supervisors that he would
be fired if he did not perform up to par upon his return from
leave; that he was the Production Manager saddled with managing a
cleaning crew; that cleaning (before he took leave and after he was
fired)
had
been
outsourced
and
anyone
responsible
for
this
department was being set up to fail;17 that while he was in charge
of the cleaning department, he was written up for poor performance,
in spite of the fact that his crew was constantly being reassigned
such that the department was understaffed, compromising its ability
17
Notably, and contrary to Trinity's argument, Bennett's
self-serving testimony is not the only support for this theory;
Melton and other Trinity employees likewise testified on this issue
in support of Bennett.
Although Trinity insinuates that these
other employees' credibility might be undermined by the fact that
they no longer work for Trinity, the Court must refrain from making
any credibility determinations.
17
to succeed; that he was fired several months after returning from
leave.
The Court will not weigh this evidence or make credibility
determinations on summary judgment.
(b)
Articulating a legitimate reason for termination
Having found a factual controversy exists precluding summary
judgment on Bennett's prima facie case, the Court proceeds under
the McDonnell Douglas framework; a presumption of discrimination
arises and the burden shifts to Trinity to articulate a legitimate
reason for the adverse employment action.
Trinity has done so.
Indeed, there is no credible dispute that Trinity has carried its
burden of production in pointing to the Employee Action Plan issued
to Bennett and its position that he failed to improve his poor
performance before being fired.
Although Bennett disputes the
veracity of Trinity's stated reasons for firing him, the reasons
are facially legitimate, non-discriminatory or non-retaliatory
reasons for terminating employment.
(c)
Pretext
Having met its burden of production, any presumption of
discrimination/retaliation has been rebutted, and the burden shifts
back to Bennett to offer evidence sufficient to identify a material
fact concerning whether or not Trinity's articulated reason is but
a pretext for discrimination.
On this record, Bennet has done so.
Bennett does not simply concede that he had performance issues upon
his return from FMLA leave, but, rather, he maintains that the
18
articulated reasons for firing him are false or fabricated and
proximate to his return from leave.18
He submits that Trinity
trumped up reasons for firing him, that he did not poorly perform
his job duties (and that, if he did, it was due to being assigned
to the cleaning department); if the jury credits Bennett's theory
of the evidence, then the jury may disbelieve Trinity's stated
reasons for firing him. Trinity counters that Bennett's subjective
beliefs are insufficient to prove pretext.
The jury could choose
to disbelieve Trinity, or it could disbelieve Bennett.
rather
obvious.
Simply
put,
the
evidence
is
That seems
conflicting.
Presented with a fact-intensive dispute, the Court is persuaded
that
summary
judgment
is
not
appropriate
on
this
record.
Considering the same evidence outlined above, and that plaintiff
was on medical leave while supervisors allegedly discussed firing
him if he did not perform up to standards, plaintiff at the least
makes a prima facie case under the FMLA, and a material factual
dispute remains regarding whether defendant's proffered reason is
pretext.
On this record, it is the province of the jury to probe
whether an employer's decision was made with discriminatory motive.
18
The Court notes that, while Bennett was suspended for
allegedly improper payroll coding, he disputes that he acted
contrary to policy. And, although a dischargeable offense, Trinity
does not offer up the payroll coding infraction as the reason it
terminated his employment.
19
III.
Trinity also seeks judgment as a matter of law dismissing the
plaintiff's age and disability discrimination claims.
Insofar as
the
disability
plaintiff
alleges
state
law-based
age
and
discrimination claims, Trinity is entitled to summary judgment
because the record shows that the plaintiff has failed to satisfy
his
pre-litigation
obligations
under
La.R.S.
§
23:302(C).19
Likewise, Trinity submits, and the plaintiff does not contest, that
insofar as the plaintiff intended to pursue an ADEA or ADA claim,
no EEOC Charge alleging either age or disability discrimination was
ever filed.20
The Court lacks subject matter jurisdiction over any
ADEA or ADA claims the plaintiff had hoped to pursue.
v. Mineta, 448 F.3d 783, 795 (5th Cir. 2006).
See Pacheco
Finding no support
for exhaustion in the record, the plaintiff's age and disability
discrimination claims, whether based in state or federal law, must
be dismissed.
Accordingly, the defendant’s motion for summary judgment is
GRANTED in part and DENIED in part.
All of the plaintiff's claims
are dismissed, except for his FMLA discrimination/retaliation
19
The plaintiff fails to advance any argument concerning
any state law claims. The Court considers these claims abandoned.
20
The plaintiff's complaint alleges a disability claim
under Louisiana's anti-discrimination statute, but does not mention
the ADA. But the plaintiff's opposition papers argue that he has
at least raised disputed fact issues concerning an ADA claim.
Regardless, the plaintiff nowhere submits evidence showing that he
exhausted his pre-suit EEOC remedies.
20
claim.
New Orleans, Louisiana, September 18, 2014
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
21
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