McNealy v. Becnel et al

Filing 237

ORDER AND REASONS - IT IS ORDERED that the pending dispositive motions filed by the Defendants are GRANTED IN PART and DEFERRED IN PART. IT IS FURTHER ORDERED that McNealys federal claims against USW International and the Local Union under 42 U.S.C. Section 301; 42 U.S.C. § 1985(3); 42 U.S.C. § 1986; and 29 U.S.C. § 141 are DEFERRED and converted to motions for summary judgment. IT IS FURTHER ORDERED that McNealys federal claims against USW International and the Local Union unde r 42 U.S.C. § 1985(2) and 29 U.S.C. § 151 are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that McNealys federal claims against Motiva and the Shell Defendants under 42 U.S.C. § 1985(2); 29 U.S.C. § 1001 and 1132; 29 U.S.C. &# 167; 151; and Article III, Section 2, Clause 1 of the United States Constitution are DISMISSED WITH PREJUDICE. McNealys Title VII and ADA claims against Motiva and the Shell Defendants are DISMISSED WITHOUT PREJUDICE for failure to exhaust administra tive remedies. McNealys claims under 42 U.S.C. § 1981; 42 U.S.C. § 1985(3); 42 U.S.C. § 1986; and 42 U.S.C. § 141 are DEFERRED and converted to motions for summary judgment. IT IS FURTHER ORDERED that McNealys federal claims agai nst Saudi Refining, Inc., under 42 U.S.C. § 1981 and 42 U.S.C. § 1985(2) and (3) are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that McNealys federal claims against the EEOC under the First and Fifth Amendments to the United States Co nstitution and the Federal Tort Claims Act are DISMISSED WITH PREJUDICE for lack of subject matter jurisdiction. IT IS FURTHER ORDERED that McNealys federal claim against Met-Life under 29 U.S.C. § 1001 is DISMISSED WITH PREJUDICE for failure t o exhaust administrative remedies. IT IS FURTHER ORDERED that the Court DEFERS ruling on McNealys state law claims until after its rulings on the motions for summary judgment filed in accordance with the Courts scheduling order. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NEWTON MCNEALY,
Plaintiff

CIVIL ACTION

VERSUS

NO. 14-2181

DARRYL J. BECNEL, ET AL.,
Defendants

SECTION: “E” (2)

ORDER AND REASONS
This matter comes before the Court on the Defendants’ dispositive motions. 1 The
Defendants in this case are: (1) United Steel, Paper and Forestry, Rubber, Manufacturing,
Energy,

Allied

Industrial

and

Service

Workers

International

Union

(“USW

International”); (2) United Steelworkers Local Union, Local 750 (“Local Union”); (3)
Motiva Enterprises, LLC (“Motiva”); (4) Shell Oil Co. (“Shell Oil”); (5) Shell Chemical LP
(“Shell Chemical”); 2 (6) Saudi Refining, Inc. (“Saudi Refining”); (7) the United States
Equal Employment Opportunity Commission; and (8) Metropolitan Life Insurance Co.
(“Met-Life”). Each Defendant has filed at least one dispositive motion, and some have
filed two.
FACTUAL & PROCEDURAL BACKGROUND
This civil action involves claims of, among others, race discrimination, retaliation,
and harassment, levied by the Plaintiff, Newton McNealy, against a number of entities. 3
McNealy is an African-American male who previously worked as a machinist for Motiva
at a Motiva-owned facility in Norco, Louisiana. McNealy alleges, on or about November

R. Docs. 117, 118, 121, 138, 146, 210, 215, 216.
Shell Oil and Shell Chemical are sometimes referred to collectively by the Court as the “Shell Defendants.”
The Plaintiff sometimes refers to these two Defendants as “Shell.”
3 The operative facts, as alleged by McNealy, are taken from McNealy’s “Second-Amended Complaint.” See
R. Doc. 114. This Second-Amended Complaint is in reality McNealy’s Third-Amended Complaint and is
referred to as such herein.
1

2

1

7, 2011, while in the course and scope of his employment with Motiva, he was “victimized”
and “struck in the head” by a crane control box at the hands of his white co-workers. After
the attack, McNealy alleges he retreated to his personal vehicle to recover whereupon his
co-workers “wrapped and sealed” him in the vehicle and “covered the window with some
type of foam.” McNealy also alleges, in the days that followed, he was verbally assaulted,
threatened, sodomized, and sexually harassed by his white co-workers, which contributed
to a hostile work environment. According to McNealy, he complained to his superiors on
numerous occasions and filed formal complaints with his union, but the investigations
into his complaints led nowhere. McNealy thus alleges the various Defendants condoned
“inappropriate behavior in the workplace,” and ultimately violated the Collective
Bargaining Agreement between Motiva and his union.
McNealy alleges, as a result of the treatment he experienced, he developed and has
been diagnosed with post-traumatic stress disorder, anxiety, paranoia, and depression,
among other conditions. In light of his medical conditions, McNealy alleges he was placed
on non-occupational disability in February of 2012 and remained on disability for over
two years. According to McNealy, after having been on disability for an extended period
of time, he was converted to “non-pay status,” and he began experiencing other adverse
employment actions by the Shell Defendants and Motiva. McNealy alleges, for example,
the Shell Defendants and Motiva confiscated his ID badge and his company credit card
and cancelled his insurance. These actions, according to McNealy, ultimately led to the
termination of his employment at the Motiva facility.

2

McNealy filed suit on September 22, 2014, and has been granted leave of court on
multiple occasions to amend his complaint. 4 McNealy filed his third-amended complaint
on December 9, 2015. McNealy’s third-amended complaint, like his prior complaints, is
less than clear. In an Order dated June 30, 2016, the Court identified for McNealy the
deficiencies in his third-amended complaint, citing Federal Rule of Civil Procedure 8(a). 5
The Court noted Rule 8(a) requires a pleading stating a claim for relief to include, inter
alia, “a short and plain statement of [each] claim showing that the pleader is entitled to
relief” against each defendant. 6 Considering the third-amended complaint in light of Rule
8(a), the Court found McNealy’s third-amended complaint failed to clearly identify, with
precision, the specific causes of action he is bringing against each Defendant and the laws
or statutes pursuant to which those causes of action were filed. In sum, the Court found
it unclear from the third-amended complaint which causes of action McNealy is bringing
against each Defendant.
The Court convened a telephone status conference with counsel for the parties on
July 8, 2016 to discuss the third-amended complaint. During the status conference,
McNealy’s attorney, Quiana Hunt, clarified the causes of action that McNealy claims he
has brought against each Defendant. The Court memorialized this discussion in a Minute
Entry, to which the Court attached a chart specifically identifying each cause of action

4 McNealy’s complaints include Record Document 1 (Complaint), Record Document 37 (Amended and
Supplemental Complaint), Record Document 60 (Second-Amended Complaint), and Record Document 114
(Third-Amended Complaint).
5 R. Doc. 208.
6 See, e.g., Hernandez v. Wood/Chuck Chipper Corp., No. 4:11-CV-597, 2012 WL 1836352, at *1 (E.D. Tex.
Apr. 13, 2012) (citing FED. R. CIV. P. 8(a)(2)) (alterations omitted) (“The Federal Rules of Civil Procedure
require that each claim in a compliant include ‘a short and plain statement showing that the pleader is
entitled to relief.’”); De Ward v. Gomez, No. 2:09-CV-0204, 2009 WL 3170255, at *1 (N.D. Tex. Oct. 2,
2009) (“Plaintiff was ordered to file an amended complaint setting forth a short and plain statement of his
claim against each defendant showing his entitlement to relief, in compliance with Federal Rule[] of Civil
Procedure 8.”).

3

McNealy claims to be pursuing against each Defendant. 7 Without agreeing with McNealy
that these causes of action are actually pleaded in the third-amended complaint, the Court
will assume these are the causes of action pleaded therein for purposes of this decision.
LEGAL STANDARDS
I.

Motions to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss

a complaint, or any part of it, for failure to state a claim upon which relief may be granted
if the plaintiff has not set forth factual allegations in support of his claim that would entitle
him to relief. 8 “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 9 “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” 10
The court, however, does not accept as true legal conclusions or mere conclusory
statements, and “conclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.” 11 “[T]hreadbare recitals of
elements of a cause of action, supported by mere conclusory statements” or “naked
assertion[s] devoid of further factual enhancement” are not sufficient. 12
In summary, “[f]actual allegations must be enough to raise a right to relief above
the speculative level.” 13 “[W]here the well-pleaded facts do not permit the court to infer

R. Doc. 209 (Minute Entry); R. Doc. 209-1 (Chart).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007).
9 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
10 Id.
11 S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir.
2001) (citing Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
12 Iqbal, 556 U.S. at 663, 678 (citations omitted).
13 Twombly, 550 U.S. at 555.
7

8

4

more than the mere possibility of misconduct, the complaint has alleged—but it has not
show[n]’—that the pleader is entitled to relief.” 14 “Dismissal is appropriate when the
complaint ‘on its face show[s] a bar to relief.’” 15
II.

Motions for Summary Judgment
Summary judgment is appropriate only “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” 16 “An issue is material if its resolution could affect the outcome of the action.” 17
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.” 18 All reasonable inferences are drawn in favor of the nonmoving party. 19
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law. 20
If the dispositive issue is one on which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 21 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the nonmoving
party to direct the Court’s attention to something in the pleadings or other evidence in the
Id. (quoting Fed. R. Civ. P. 8(a)(2)).
Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (quotations omitted).
16 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
17 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
18 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
19 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
20 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
21 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
14
15

5

record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist. 22
If the dispositive issue is one on which the nonmoving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the nonmovant’s
claim, or (2) demonstrating there is no evidence in the record to establish an essential
element of the nonmovant’s claim. 23 When proceeding under the first option, if the
nonmoving party cannot muster sufficient evidence to dispute the movant’s contention
that there are no disputed facts, a trial would be useless, and the moving party is entitled
to summary judgment as a matter of law. 24 When, however, the movant is proceeding
under the second option and is seeking summary judgment on the ground that the
nonmovant has no evidence to establish an essential element of the claim, the nonmoving
party may defeat a motion for summary judgment by “calling the Court’s attention to
supporting evidence already in the record that was overlooked or ignored by the moving
party.” 25 Under either scenario, the burden then shifts back to the movant to demonstrate
the inadequacy of the evidence relied upon by the nonmovant. 26 If the movant meets this
burden, “the burden of production shifts [back again] to the nonmoving party, who must
Celotex, 477 U.S. at 322–24.
Id. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)
(citing Justice Brennan’s statement of the summary judgment standard in Celotex Corp. v. Catrett, 477 U.S.
317, 322–24 (1986), and requiring the movants to submit affirmative evidence to negate an essential
element of the nonmovant’s claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient
to establish an essential element); Fano v. O’Neill, 806 F.2d 1262, 1266 (citing Justice Brennan’s dissent in
Celotex, and requiring the movant to make an affirmative presentation to negate the nonmovant’s claims
on summary judgment); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE §2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority
and dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to
how the standard was applied to the facts of the case.” (internal citations omitted)).
24 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–89 (1980);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
25 Celotex, 477 U.S. at 332–33.
26 Id.
22
23

6

either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule
56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided
in Rule 56(f).” 27 “Summary judgment should be granted if the nonmoving party fails to
respond in one or more of these ways, or if, after the nonmoving party responds, the court
determines that the moving party has met its ultimate burden of persuading the court that
there is no genuine issue of material fact for trial.” 28
“[U]nsubstantiated assertions are not competent summary judgment evidence.
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports the claim.
‘Rule 56 does not impose upon the district court a duty to sift through the record in search
of evidence to support a party’s opposition to summary judgment.’” 29
LAW AND ANALYSIS
Each Defendant has filed or joined in at least one dispositive motion, and some
have filed two. 30 Moreover, some motions were filed on behalf of multiple defendants.
The Court begins with McNealy’s federal causes of action against each Defendant,
followed by a separate section addressing McNealy’s state law causes of action, in general.
I.

USW International & Local Union (R. Docs. 117, 118, 215, 216)
USW International and the Local Union move to dismiss McNealy’s claims against

Celotex, 477 U.S. at 332–33, 333 n.3.
Id.; see also First National Bank of Arizona, 391 U.S at 289.
29 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
30 R. Docs. 117 (USW International); 118 (Local Union); 121 (Motiva, Shell Chemical, & Shell Oil); 138 (Saudi
Refining); 146 (EEOC); 210 (Met-Life Insurance Co.); 215 (Local Union); 216 (USW International).
27

28

7

them under Rule 12(b)(6). 31 The factual allegations in the third-amended complaint with
respect to USW International and the Local Union are as follows. McNealy alleges he is a
“paying member of the Local Union (750), who is entitled to representation,” but the
Union 32 failed to “address his grievances against Shell and Motiva.” 33 McNealy further
alleges the Union “had a fiduciary duty to protect his rights under the terms and
condition[s] of the Collective Bargaining Agreement as the Labor Organization on behalf
of its members with Shell and Motiva, but refused and failed to do so.” 34 McNealy also
alleges the “Union condoned inappropriate behavior in the workplace in violation of the
Collective Bargaining Agreement.” 35 McNealy alleges the Union, along with other
Defendants, “had the power to prevent the occurrences, but failed to do so.” 36 According
to McNealy, the Union conspired with the Shell Defendants and Motiva to “deprive him
of his rights,” and their actions were “retaliatory in nature” because McNealy “refused to
work in a hostile work environment, without assurance of protection.” 37 McNealy also
alleges the Union’s actions created or contributed to the existence of a hostile work
environment.
According to McNealy, he is bringing causes of action against USW International
and the Local Union under (1) Section 301 of the Labor Management Relations Act, for
breach of the duty of fair representation; (2) 42 U.S.C. § 1985(2) and (3); (3) 42 U.S.C. §
1986; (4) 29 U.S.C. § 141; (5) La. Civ. Code art. 1906; (6) La. Civ. Code art. 2315; (7) La.

R. Doc. 117 and 118.
Although USW International and the Local Union are separate and distinct legal entities, McNealy refers
to them as one, the “Union,” and makes the same allegations against them in the third-amended complaint.
The Court does so too, in certain instances, as the distinction does not matter for present purposes.
33 R. Doc. 114 at 10. The Plaintiff refers to Shell Oil and Shell Chemical as “Shell.”
34 R. Doc. 114 at 11.
35 R. Doc. 114 at 11.
36 R. Doc. 114 at 15.
37 R. Doc. 114 at 13.
31

32

8

Civ. Code art. 2316; (8) La Civ. Code art. 2320; (9) La. Civ. Code art. 3499; and (10) La.
Rev. Stat. § 9:3801. 38
a.

Section 301 of the Labor Management Relations Act

McNealy alleges USW International and the Local Union breached the duty of fair
representation, which is implied under Section 301 of the Labor Management Relations
Act. 39 Section 301 provides:
Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting commerce as
defined in this Act, or between any such labor organizations, may be
brought in any district court of the United States having jurisdiction of the
parties, without respect to the amount in controversy or without regard to
the citizenship of the parties. 40
Section 301 of the Labor Management Relations Act is codified at 29 U.S.C. § 185
and has been recognized by the Supreme Court of the United States as a “potent source of
federal labor law.” 41 Section 301 provides an individual employee with a federal cause of
action against his or her employer for breach of a collective bargaining agreement. 42 Also,
an employee’s cause of action against a union for breach of the duty of fair representation
is implied under Section 301. 43 “Because of the intricate relationship between the duty of
fair representation and the enforcement of a collectively bargained contract, the two
causes of action have become ‘inextricably interdependent’ and known as a ‘hybrid §
301/fair representation suit.’” 44

R. Doc. 209-1 at 1. McNealy’s state law claims are dealt with in Section VI, infra.
See, e.g., Electrical Workers v. Foust, 442 U.S. 42, 46 n.8 (1979) (“The duty of fair representation is . . .
implicit in the National Labor Relations Act.”). The Labor Management Relations Act amended the National
Labor Relations Act. See generally Smith v. Int’l Org. of Masters, Mates and Pilots, 296 F.3d 380 (5th Cir.
2002).
40 29 U.S.C. § 185(a).
41 United Steelworkers of Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362, 368 (1990).
42 Bache v. Am. Tel. & Tel., 840 F.2d 283, 287 (5th Cir. 1988) (citations omitted).
43 Id. (citing Vaca v. Sipes, 386 U.S. 171 (1967)).
44 Id. at 287–88 (quoting DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 164–65 (1983)). “The
interdependency arises from the nature of the collective bargaining agreement. If the arbitration and
38
39

9

A motion to dismiss under Rule 12(b)(6) is designed to test the pleadings.
Nevertheless, McNealy attached Exhibits A, B, C, D, Q, O, K, H, and I to his memorandum
in opposition to the Local Union’s motion to dismiss 45 and USW International’s Motion
to Dismiss. 46 These documents are outside the pleadings, and they have not been
excluded by the Court. In this situation, Rule 12(d) requires the Court to deny the Unions’
motions to dismiss and, instead, treat the pleadings as motions for summary judgment
under Rule 56. 47
When converting a motion to dismiss to a motion for summary judgment under
Rule 12(d), the Court must give the parties ample opportunity to present argument and
summary judgment evidence. The parties may not have attached all the relevant
documents and exhibits they would have attached if they had known the motion would be
treated as a motion for summary judgment. Accordingly, pursuant to Rule 56(e)(1), the
Court will allow the parties an opportunity to properly support their arguments and
factual assertions and address the arguments and factual assertions raised by opposing
counsel.
The Unions’ motions to dismiss McNealy’s Section 301 claims under Rule 12(b)(6)
are converted to motions for summary judgment.

grievance procedure is the exclusive and final remedy for breach of the collective bargaining agreement, the
employee may not sue his employer under § 301 until he has exhausted the procedure. Further, he is bound
by the procedure’s result unless he proves the union breached its duty of fair representation.” Daigle v. Gulf
State Util. Co., 794 F.2d 974, 977 (5th Cir. 1986) (citations omitted).
45 R. Doc. 224.
46 R. Doc. 225.
47 See Fed. R. Civ. P. 12(d).
10

b.

42 U.S.C. § 1985(2) and (3)

McNealy seeks relief against USW International and the Local Union under Title
42, United States Code, Sections 1985(2) and (3).
Section 1985(2) protects parties and witnesses who seek to attend or testify in
federal court. 48 Section 1985(2) has no relevance in this case. McNealy does not allege
that USW International or the Local Union violated his right to attend or testify in federal
court. McNealy’s claim against the Union under Section 1985(2) is dismissed with
prejudice.
“Section 1985(3) prohibits private conspiracies to deprive persons of equal
protection of the laws.” 49 To state a claim for relief under Section 1985(3), a plaintiff must
show, inter alia, “that some racial, or perhaps otherwise class-based, invidiously
discriminatory animus [lay] behind the conspirators’ action.” 50 Therefore, to state a claim
under Section 1985(3), the plaintiff must allege sufficient facts showing the defendants
conspired to discriminate against the plaintiff on the basis of his or her race. 51
A motion to dismiss under Rule 12(b)(6) is designed to test the pleadings.
Nevertheless, McNealy attached Exhibits A, B, C, D, Q, O, K, H, and I to his memorandum
in opposition to the Local Union’s motion to dismiss 52 and the International Union’s
Motion to Dismiss. 53 These documents are outside the pleadings, and they have not been

See, e.g., Kush v. Rutledge, 460 U.S. 719, 724 (1983); Kimble v. D.J. McDuffy, Inc., 648 F.2d 340 (5th
Cir. 1981); Bryant v. Miss. Military Dep’t, 519 F. Supp. 2d 622, 628–29 (S.D. Miss. 2007); Turner v. Bowen,
No. 3:06-cv-576, 2007 WL 1295787, at *2 (S.D. Miss. May 1, 2007); Ragsdale v. Classroom Teachers of
Dallas, No. 3:06-CV-863, 2007 WL 426637, at *4 n.5 (N.D. Tex. Feb. 5, 2007).
49 Daigle v. Gulf State Utilities Co., 794 F.2d 974, 978 (5th Cir. 1986) (citation omitted).
50 Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 267–68 (1993) (internal quotations omitted)
(quoting Griffin v. Breckenridge, 403 U.S. 825, 833 (1983)). See also David v. Signal Intern., LLC, No. 081220, 2012 WL 10759668, at *36 (E.D. La. Jan. 4, 2012).
51 See, e.g., Newsome v. EEOC, 301 F.3d 227, 232 (5th Cir. 2002).
52 R. Doc. 224.
53 R. Doc. 225.
48

11

excluded by the Court. In this situation, Rule 12(d) requires the Court to deny the Unions’
motions to dismiss and, instead, treat the pleadings as motions for summary judgment
under Rule 56. 54
When converting a motion to dismiss to a motion for summary judgment under
Rule 12(d), the Court must give the parties ample opportunity to present argument and
summary judgment evidence. The parties may not have attached all the relevant
documents and exhibits they would have attached if they had known the motion would be
treated as a motion for summary judgment. Accordingly, pursuant to Rule 56(e)(1), the
Court will allow the parties an opportunity to properly support their arguments and
factual assertions and address the arguments and factual assertions raised by opposing
counsel.
The Unions’ motions to dismiss McNealy’s Section 1985(3) claims under Rule
12(b)(6) are converted to motions for summary judgment.
c.

42 U.S.C. § 1986

Section 1986 provides for liability against third parties based on their knowledge
of Section 1985 violations. Section 1986 does not provide an independent cause of action
but instead requires the existence of a valid claim under Section 1985. 55 “A valid § 1985
claim is a prerequisite to a § 1986 claim.” 56 Because the Unions’ motions to dismiss the
Section 1985(3) claims have been converted to motions for summary judgment, these
motions to dismiss also must be converted.
The Unions’ motion to dismiss McNealy’s Section 1986 claims under Rule 12(b)(6)
are converted to motions for summary judgment.
See Fed. R. Civ. P. 12(d).
Bradt v. Smith, 634 F.2d 796, 799 n.3 (5th Cir. 1981).
56 Bryan v. City of Madison, Miss., 213 F.3d 267, 276 (5th Cir. 2000).
54
55

12

d.

29 U.S.C. § 141, et seq.

McNealy represents he is pursuing causes of action against USW International and
the Local Union under 29 U.S.C. § 141, et seq. In particular, McNealy indicates his causes
of action are under 29 U.S.C. § 151.
The National Labor Relations Act of 1935, as amended by the Labor Management
Relations Act, is codified at 29 U.S.C. § 141, et seq. Section 151 merely sets forth, generally,
the “findings and declarations of policy” behind the National Labor Relations Act. 57 In
this case, McNealy cites Section 151 in his third-amended complaint. McNealy alleges
USW International and the Local Union are “regulated under 29 U.S.C. § 151 et seq. as a
National Labor Relations Organization on behalf of its members.” 58 The Unions’ motions
to dismiss McNealy’s claims under Section 151 are dismissed with prejudice.
The only other section of the National Labor Relations Act referenced in McNealy’s
third-amended complaint is Section 141. 59 McNealy alleges USW International and the
Local Union “had a duty to represent him under the collective bargaining agreement, but
breached their duty by failing to do so as required by Labor Management Relations Act §
301 and National Labor Relations Act § 141.” 60 McNealy’s claim under Section 141 is one
and the same with his Section 301 claim, as Section 141 is merely the first statutory section
of the National Labor Relations Act, as amended by Section 301 of the Labor Management
Relations Act. 61 McNealy’s claims against USW International and the Local Union under
29 U.S.C. § 141 are, in reality, claims under Section 301 of the Labor Management

See Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 565 n.14 (1978); N.L.R.B. v. Brown Paper Mill Co., 108 F.2d
867, 870 (5th Cir. 1940).
58 R. Doc. 114 at 7.
59 R. Doc. 114 at 1, 22.
60 R. Doc. 114 at 22.
61 Thomas v. LTV Corp., 39 F.3d 611, 614 (5th Cir. 1994).
57

13

Relations Act for breach of the duty of fair representation. The Unions’ motion to dismiss
McNealy’s Section 301 claims under Rule 12(b)(6) have been converted to motions for
summary judgment. 62
II.

Motiva Enterprises, Shell Chemical LP, Shell Oil Co. (R. Docs. 121, 211)
Motiva, Shell Oil, and Shell Chemical move to dismiss McNealy’s claims against

them under Rule 12(b)(6). 63
McNealy was an employee of Motiva, a subsidiary of the Shell Defendants, as a
machinist when, according to McNealy, he was subjected to discriminatory treatment,
harassed, and retaliated against for several reasons. McNealy alleges, for example, while
in the course and scope of his employment with Motiva and the Shell Defendants, he was
“victimized” and “struck in the head with a crane control box” by white co-workers. 64
McNealy alleges that, after the incident, he was repeatedly harassed and discriminated
against by other employees and supervisors of Motiva and the Shell Defendants due to his
race. 65 According to McNealy, Motiva and the Shell Defendants also failed to “take
corrective action” in response to the discriminatory treatment he experienced, although
an investigation into the allegations was commenced. 66 According to McNealy, Motiva
and the Shell Defendants also took a number of adverse employment actions against him,
including confiscating his ID badge and company credit card and cancelling his
insurance.

67

More generally, McNealy alleges Motiva and the Shell Defendants

See supra page 10.
R. Doc. 121 and 211. For purposes of this Order & Reasons, the Court refers to Shell Chemical LP and
Shell Oil Co., collectively, as the “Shell Defendants.”
64 R. Doc. 114 at 8.
65 R. Doc. 114 at 9.
66 R. Doc. 114 at 9–10.
67 R. Doc. 114 at 12.
62
63

14

“condoned inappropriate and criminal behavior” at Motiva’s Norco facility, “in violation
of their employment practices and policies.” 68
McNealy brings causes of action against Motiva, Shell Chemical LP, and Shell Oil
Co. under (1) 42 U.S.C. § 2000, et seq.; (2) 42 U.S.C. § 12101; (3) 42 U.S.C. § 1981; (4) 42
U.S.C. § 1985(2) and (3); (5) 42 U.S.C. § 1986; (6) 29 U.S.C. § 1001; (7) 29 U.S.C. § 1132;
(8) 29 U.S.C. § 141; (9) Article III, Section 2, Clause 1 of the United States Constitution;
(10) La. Rev. Stat. § 23:301; (11) La. Rev. Stat. § 23:1361; (12) La. Rev. Stat. § 9:3801; (13)
La. Civ. Code art. 1906; (14) La. Civ. Code art. 2315; (15) La. Civ. Code art. 2316; (16) La.
Civ. Code art. 2320; and (17) La. Civ. Code art. 3499. 69
a.

42 U.S.C. § 2000, et seq.

Title 42, United States Code, Section 2000, marks the beginning of Title VII of the
Civil Rights Act of 1964. Title VII prohibits employers, both public and private, from
discriminating against their employees and prospective employees on the basis of race,
color, religion, sex, and national origin.

70

“Title VII prohibits both intentional

discrimination (known as ‘disparate treatment’) as well as, in some cases, practices that
are not intended to discriminate but in fact have a disproportionately adverse effect on
minorities (known as ‘disparate impact’).” 71 Title VII also bars employers from retaliating
against employees and prospective employees or subjecting them to a hostile work
environment for engaging in a protected activity. 72 Title VII authorizes private causes of
action for discrimination, retaliation, and a hostile work environment.

R. Doc. 114 at 11.
R. Doc. 209-1 at 2.
70 Ricci v. DeStefano, 557 U.S. 557, 577 (2009).
71 Id.
72 42 U.S.C. § 2000e. See also Bartz v. Mitchell Ctr., No. A-05-CA-959, 2008 WL 577388, at *2 (W.D. Tex.
Jan. 23, 2008).
68
69

15

McNealy’s causes of action under Title VII are subject to dismissal under Rule
12(b)(6). 73 A plaintiff may not pursue Title VII claims in federal court unless he or she has
exhausted all of the available administrative remedies. 74 “Exhaustion occurs when the
plaintiff files a timely charge with the EEOC and receives a statutory notice of right to
sue.” 75 In his third-amended complaint, McNealy alleges he filed complaints with the
EEOC, but McNealy does not allege he was ever issued a right-to-sue letter. 76 In fact,
McNealy concedes he was not issued a right-to-sue letter by the EEOC. 77 Thus, McNealy
did not exhaust his administrative remedies. McNealy argues, however, that he was
excused from exhausting his administrative remedies because doing so would have been
futile. 78 McNealy bears the burden of establishing exhaustion would have been futile.79
McNealy argues he “filed several complaints” with the EEOC, but the EEOC “failed to
investigate” those complaints, thus preventing him from exhausting his administrative
remedies and rendering futile his attempts to do so. 80 This argument, however, is short
on specifics, as McNealy has not alleged any facts to support his argument that the EEOC
failed to investigate his complaints. Conclusory allegations that exhaustion would have
been futile are insufficient to evade the general requirement that a plaintiff exhaust his or
her administrative remedies before proceeding in federal court. 81
73 Timely filing of a complaint with the EEOC is not a jurisdictional prerequisite to bringing suit in federal
court. Waiters v. Parsons, 729 F.2d 233, 236 (5th Cir. 1984).
74 Taylor v. Books A Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002); Hall. v. Cont’l Airlines, Inc., 252
F. App’x 650, 653 (5th Cir. 2007). See also EEOC v. Waffle House, Inc., 534 U.S. 279, 285 (2002).
75 Taylor, 296 F.3d at 379 (citing Dao v. Auchan Hypermarket, 96 F.3d 787, 788–89 (5th Cir. 1996)).
76 R. Doc. 114 at 16, 22
77 R. Doc. 114 at 23.
78 R. Doc. 186-1 at 11.
79 See, e.g., Guerra v. Comm’cns Workers, 91 F.3d 140 (5th Cir. 1996) (citations omitted).
80 R. Doc. 186-1 at 10–11.
81 This rule of law is oft recognized in prisoner litigation, but applies with equal force in this case. Kidd v.
Livingston, 463 F. App’x 311, 313 (5th Cir. 2012); Howe v. Livingston, No. 9:11-cv-162, 2012 WL 4127621,
at *7 (E.D. Tex. Sept. 17, 2012). See also Stringer v. Martin, No. 1:11-cv-704, 2012 WL 5195819, at *1 (E.D.
Tex. Oct. 18, 2012) (“Petitioner’s petition fails to cite any facts to support his allegation that exhaustion
would be futile.”); A.T. v. Leflore Cnty. Sch. Dist., No. 4:09-cv-128, 2010 WL 1506974, at *1 (N.D. Miss.

16

As a precondition to filing suit under Title VII, a plaintiff must exhaust his or her
available administrative remedies. In this case, it is undisputed that McNealy was not
issued a right-to-sue letter by the EEOC and, as a result, failed to exhaust his
administrative remedies. His argument that exhaustion would have been futile is
conclusory. For these reasons, McNealy is unable to pursue his Title VII causes of action
in this Court at this time. McNealy’s Title VII causes of action against Motiva and the Shell
Defendants must be dismissed without prejudice due to McNealy’s failure to exhaust his
administrative remedies. 82
b.

42 U.S.C. § 12101

Title 42, United States Code, Section 12101, marks the beginning of the Americans
with Disabilities Act of 1990 (“ADA”). The ADA prohibits, inter alia, discrimination
against qualified, disabled employees on the basis of an employee’s disability. Title I of
the ADA prohibits employment discrimination, and Title II prohibits discrimination in
the provision of public services. 83 Title I’s prohibition of discrimination in the context of
employment is arguably relevant in this case.
McNealy alleges Motiva and the Shell Defendants discriminated against him on
the basis of race and, of significance in this section, a number of disabilities. According to
Apr. 14, 2010) (“Plaintiff’s Complaint does not allege sufficient facts to show that she has exhausted her
administrative remedies, and Plaintiff has not offered any evidence or argument that exhaustion would be
futile or inadequate.”); Stewart v. Tombone, No. 3:97-cv-0129, 1998 WL 158657, at *2 (N.D. Tex. Mar. 24,
1998) (“While petitioner asserts futility, he fails to present evidence supporting such claim.”).
82 See, e.g., Owens v. Sec. of Army, 354 F. App’x 156, 157 (5th Cir. 2009); Winegarner v. Dallas Cnty. Sch.,
No. 3:98-cv-2523, 1999 WL 325028, at *1 (N.D. Tex. May 19, 1999) (recognizing unexhausted claims must
be dismissed without prejudice).
83 See, e.g., Decker v. Univ. of Houston, 970 F. Supp. 575, 577 (S.D. Tex. 1997) (“Subchapter or Title II of
the ADA governs public services and provides that ‘no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity. . . . Title I provides that
‘[n]o covered entity shall discriminate against a qualified individual with a disability because of the
disability of such individual in regard to job application procedures, the hiring, advancement, or discharge
of employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.”).
17

McNealy, due to the racial discrimination he experienced, he developed and was
diagnosed with several disabilities, including post-traumatic stress disorder, anxiety,
paranoia, dysthymic disorder, and depression. 84 McNealy identifies these disabilities in
the third-amended complaint and alleges Motiva and the Shell Defendants discriminated
against him because of those disabilities. 85
As with causes of action under Title VII, a plaintiff must exhaust the available
administrative remedies before pursuing any causes of action under the ADA in federal
court. That is, “an employee must comply with the ADA’s administrative prerequisites
prior to commencing an action in federal court against her employer for violation of the
ADA.” 86 The administrative prerequisites under the ADA are the same as those under
Title VII; the plaintiff must (1) file a charge with the EEOC and (2) obtain a right-to-sue
letter prior to filing suit in federal court. 87 In this case, McNealy did not obtain a right-tosue letter and, thus, McNealy did not exhaust his administrative remedies. Although
McNealy argues exhaustion would have been futile because the EEOC “failed to
investigate” his complaints,

88

it is McNealy’s burden to establish the futility of

exhaustion, a burden which McNealy has not carried. McNealy’s argument that
exhausting his administrative remedies would have been futile is not supported by any
concrete factual allegations but, instead, is an unsupported, conclusory argument which
this Court need not credit. 89
R. Doc. 114 at 11.
R. Doc. 114 at 14.
86 Dao v. Auchan Hypermarket, 96 F.3d 787, 788 (5th Cir. 1996).
87 Id. at 789. “Under the ADA, an aggrieved employee must exhaust his administrative remedies by filing a
timely charge of discrimination with the EEOC and receiving a right to sue letter before filing suit in the
district court.” Thibodeaux v. Transit Mix Concrete and Materials Co., 3 F. Supp. 2d 743, 744 (E.D. Tex.
1998) (citing Dao, supra).
88 R. Doc. 186-1 at 10–11.
89 See, e.g., Calelly v. Conroe Indep. Sch. Dist., 193 F.3d 516 (5th Cir. 1999) (per curiam) (citing Gardner v.
Sch. Bd. Caddo Parish, 958 F.2d 108, 110 (5th Cir. 1992)).
84
85

18

For these reasons, McNealy’s causes of action against Motiva and the Shell
Defendants under the ADA must be dismissed without prejudice for his failure to exhaust
his administrative remedies.
c.

42 U.S.C. § 1981

Title 42, United States Code, Section 1981, prescribes an independent cause of
action against private, non-governmental actors for discrimination on the basis of race. 90
Section 1981(a) provides:
All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal benefit of all
laws and proceedings for the security of persons and property as is
enjoyed by white citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind, and to no other.
Section 1981(b), in turn, defines the phrase “make and enforce contracts” as “the making,
performance, modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship.”
A motion to dismiss under Rule 12(b)(6) is designed to test the pleadings.
Nevertheless, Motiva and the Shell Defendants attached McNealy’s deposition to their
reply memorandum in support of their motion to dismiss under Rule 12(b)(6). 91 To
further complicate matters, McNealy attached Exhibits A, B, R, C, F, and E to his amended
memorandum in opposition to the motion to dismiss. 92 These documents are outside the
pleadings, and they have not been excluded by the Court. In this situation, Rule 12(d)

See, e.g., Oden v. Oktibbeha Cnty., Miss., 246 F.3d 458, 462 (5th Cir. 2001); see also Patterson v. McLean
Credit Union, 485 U.S. 617, 620 (1988); Gallentine v. Housing Auth. of City of Port Arthur, Tex., 919 F.
Supp. 2d 787, 807–08 (E.D. Tex. 2013); Charles v. Galliano, No. 10-811, 2010 WL 3430519, at *4 (E.D. La.
Aug. 26, 2010).
91 R. Doc. 205-1.
92 R. Doc. 222.
90

19

requires the Court to deny the Motiva and the Shell Defendants’ motion to dismiss and,
instead, treat the pleading as a motion for summary judgment under Rule 56. 93
When converting a motion to dismiss to a motion for summary judgment under
Rule 12(d), the Court must give the parties ample opportunity to present argument and
summary judgment evidence. The parties may not have attached all the relevant
documents and exhibits they would have attached if they had known the motion would be
treated as a motion for summary judgment. Accordingly, pursuant to Rule 56(e)(1), the
Court will allow the parties an opportunity to properly support their arguments and
factual assertions and address the arguments and factual assertions raised by opposing
counsel.
The Motiva and Shell Defendants motion to dismiss McNealy’s Section 1981 claims
under Rule 12(b)(6) is converted to a motion for summary judgment.
d.

42 U.S.C. § 1985(2) and (3)

McNealy seeks relief against Motiva and the Shell Defendants under Title 42,
United States Code, Sections 1985(2) and (3).
As stated above with respect to USW International and the Local Union, Section
1985(2) protects parties and witnesses who seek to attend or testify in federal court.94
Section 1985(2) is not applicable in this case. McNealy does not allege that Motiva or the
Shell Defendants somehow violated his right to attend or testify in federal court. A review
of the third-amended complaint reveals no such allegations. McNealy’s claim with respect
to Section 1985(2) is dismissed with prejudice.

See Fed. R. Civ. P. 12(d).
See, e.g., Kush v. Rutledge, 460 U.S. 719, 724 (1983); Kimble v. D.J. McDuffy, Inc., 648 F.2d 340 (5th
Cir. 1981); Bryant v. Miss. Military Dep’t, 519 F. Supp. 2d 622, 628–29 (S.D. Miss. 2007); Turner v. Bowen,
No. 3:06-cv-576, 2007 WL 1295787, at *2 (S.D. Miss. May 1, 2007); Ragsdale v. Classroom Teachers of
Dallas, No. 3:06-Ccv-863, 2007 WL 426637, at *4 n.5 (N.D. Tex. Feb. 5, 2007).
93

94

20

“Section 1985(3) prohibits private conspiracies to deprive persons of equal
protection of the laws.” 95 To state a claim for relief under Section 1985(3), a plaintiff must
show, inter alia, “that some racial, or perhaps otherwise class-based, invidiously
discriminatory animus [lay] behind the conspirators’ action.” 96 To state a claim under
Section 1985(3), the plaintiff must allege sufficient facts showing the defendants
conspired to discriminate against the plaintiff on the basis of his or her race. 97
As mentioned above, a motion to dismiss under Rule 12(b)(6) is designed to test
the pleadings, but Motiva and the Shell Defendants attached McNealy’s deposition to
their reply memorandum in support of their motion to dismiss under Rule 12(b)(6) 98 and
McNealy attached Exhibits A, B, R, C, F, and E to his amended memorandum in
opposition to the motion to dismiss. 99 These documents are outside the pleadings, but
have not been excluded by the Court. Rule 12(d) requires the Court to . 100 Rule 12(d)
requires the Court to deny the Motiva and the Shell Defendants’ motion to dismiss
McNealy’s Section 1985(3) claims and, instead, treat the pleading as a motion for
summary judgment under Rule 56. 101
The Motiva and Shell Defendants motion to dismiss McNealy’s Section 1985(3)
claim under Rule 12(b)(6) is converted to a motion for summary judgment.

Daigle v. Gulf State Utilities Co., Local Union Number 2286, 794 F.2d 974, 978 (5th Cir. 1986).
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 267–68 (1993) (internal quotations omitted)
(quoting Griffin v. Breckenridge, 403 U.S. 825, 833 (1983)). See also David v. Signal Intern., LLC, No. 081220, 2012 WL 10759668, at *36 (E.D. La. Jan. 4, 2012).
97 See, e.g., Newsome v. EEOC, 301 F.3d 227, 232 (5th Cir. 2002).
98 R. Doc. 205-1.
99 R. Doc. 222.
100 See Fed. R. Civ. P. 12(d).
101 SeeFed. R. Civ. P. 12(d).
95

96

21

e.

42 U.S.C. § 1986

As stated above with respect to USW International and the Local Union, Section
1986 provides for liability against third parties based on their knowledge of Section 1985
violations. Section 1986 does not provide an independent cause of action, but instead
requires the existence of a valid claim under Section 1985. 102 “A valid § 1985 claim is a
prerequisite to a § 1986 claim.” 103 Because Motiva and the Shell Defendants’ motion to
dismiss McNealy’s Section 1985(3) has been converted to a motion for summary
judgment, the Court must also convert the motion to dismiss with respect to Section 1986
into a motion for summary judgment.
The Motiva and Shell Defendants’ motion to dismiss McNealy’s Section 1986 claim
under Rule 12(b)(6) is converted to a motion for summary judgment.
f.

29 U.S.C. § 1001, 1132

Title 29, United States Code, Section 1001, marks the beginning of the Employee
Retirement Income Security Act (“ERISA”). ERISA was enacted “to promote the interests
of employees and their beneficiaries in employee benefit plans.” 104 McNealy seeks relief
under two statutory sections of ERISA, namely Sections 1001 and 1132. 105 The only
allegation in the third-amended complaint that can be construed as invoking the
protections of ERISA reads: “Shell violated provisions under 29 U.S.C. § 1001 et seq., by
failing to compensate his disability, and compelling him to withdraw his 401 K pension
retirement funds.” 106 In his amended memorandum in opposition to the Motiva and Shell

Bradt v. Smith, 634 F.2d 796, 799 n.3 (5th Cir. 1981).
Bryan v. City of Madison, Miss., 213 F.3d 267, 276 (5th Cir. 2000).
104 Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90 (1983). See also Massachusetts Mut. Life Ins. Co. v.
Russell, 473 U.S. 134, 148 (1985).
105 R. Doc. 209-1 at 2.
106 R. Doc. 114 at 24.
102
103

22

Defendants’ motion to dismiss, McNealy states that his claim of failure to pay disability
benefits is brought against Shell Oil Company, Met-Life, and Met-Life Insurance
Company. 107 The Court will assume that McNealy’s ERISA claim is brought only against
his employer, Shell Oil, and Met-Life. 108
Section 1001 sets forth the congressional findings and declaration of policy
associated with ERISA and does not authorize a private cause of action. 109 McNealy in his
third-amended complaint alleges that, “Shell violated provisions under 29 U.S.C. § 1001
et seq., by failing to compensate his disability, and compelling him to withdraw his 401 K
pension retirement funds.” 110 In McNealy’s amended memorandum in opposition to the
motion to dismiss, 111 he states that he is making a breach of contract claim for failure to
pay disability benefits, which is a claim under Section 1132(a)(1)(B).
Although the ERISA statute provides that the proper plaintiff in a retirement plan
governed by ERISA is a “participant or beneficiary,” the statute makes no mention of
which parties are the proper defendants. 112 The federal appellate circuits are divided as to
whether to permit an ERISA claim against parties other than the plan itself. The Fifth
Circuit addressed the issue in Musmeci v. Schwegmann Giant Super Markets, Inc., where
the court held the employer was a proper defendant because it acted as both the plan
administrator and the plan sponsor. 113 In this case, McNealy makes no allegations in any
of his amended complaints that Shell Oil, his employer, was the plan administrator.
Met-Life Insurance Company has been dismissed.
McNealy’s ERISA claim against Met-Life is dealt with in Section V, infra.
109 See 29 U.S.C. § 1001.
110 R. Doc. 114 at 24.
111 R. Doc. 222.
112 See Harris Trust and Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 246 (2000).
113 332 F.3d 339 (5th Cir. 2003); see also Wilson v. Kimberly-Clark Corp., 254 Fed. App’x 280, 287 (5th
Cir. 2007) (quoting Musmeci, 332 F.3d at 350) (“[W]here the employer was both the ‘plan administrator’
and ‘plan sponsor’ and the relevant plan has ‘no meaningful existence separate from’ the employer, it was
proper to name the employer as a defendant.”).
107

108

23

Instead, McNealy alleges that he has a viable ERISA claim against Shell Oil because it
“fail[ed] to compensate his disability, and compel[ed] him to withdraw his 401 K pension
retirement funds.” 114 Based on the Fifth Circuit’s reasoning in Musmeci, the Court finds
that McNealy fails to allege sufficient facts that Shell Oil is a proper party defendant
because it is the plan administrator. As a result, McNealy’s claims against Shell Oil under
29 U.S.C. § 1001, et seq. are dismissed with prejudice.
g.

29 U.S.C. § 141, et seq.

McNealy represents he is pursuing causes of action against Motiva and the Shell
Defendants under 29 U.S.C. § 141, et seq. In particular, McNealy indicates his causes of
action are under 29 U.S.C. § 151.
As discussed above with respect to USW International and the Local Union, the
National Labor Relations Act of 1935, as amended by the Labor Management Relations
Act, is codified at 29 U.S.C. § 141, et seq. Section 151 sets forth, generally, the “findings
and declarations of policy” behind the National Labor Relations Act. 115 As noted above,
McNealy cites Section 151 in his third-amended complaint. McNealy has failed to state a
claim for relief under Title 29, United States Code, Section 151, against Motiva and the
Shell Defendants. McNealy’s claims under Section 151 are dismissed with prejudice.
The only other section of the National Labor Relations Act referenced in McNealy’s
third-amended complaint is Section 141. 116 McNealy alleges Motiva and the Shell
Defendants “had an obligation under the collective bargaining agreement to enforce its
terms and conditions, but breached their duty according to § 141.” 117 The Court construes

R. Doc. 114 at 24.
See Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 565 n.14 (1978); N.L.R.B. v. Brown Paper Mill Co., 108 F.2d
867, 870 (5th Cir. 1940).
116 R. Doc. 114 at 1, 22.
117 R. Doc. 114 at 22.
114
115

24

McNealy’s causes of action under Section 141 as claims under Section 301 of the Labor
Management Relations Act, as Section 141 is the first statutory section of the National
Labor Relations Act, as amended by Section 301 of the Labor Management Relations
Act. 118 McNealy’s claims against Motiva and the Shell Defendants under 29 U.S.C. § 141
are, in reality, claims under Section 301 of the Labor Management Relations Act for
breach of a collective bargaining agreement, or CBA.
As noted above, Section 301 provides an individual employee with a federal cause
of action against his or her employer for breach of a collective bargaining agreement.119
An employee’s cause of action against a union for breach of the duty of fair representation
is implied under Section 301. 120 “Because of the intricate relationship between the duty of
fair representation and the enforcement of a collectively bargained contract, the two
causes of action have become ‘inextricably interdependent’ and known as a ‘hybrid §
301/fair representation suit.’” 121
An “indispensable predicate” to a plaintiff’s Section 301 claim against an employer
is an unfair representation claim against his or her union. 122 Stated differently, “[i]t is an
‘indispensable predicate to a section 301 claim against the employer to establish that the
union has breached its duty of fair representation.” 123 “[A] plaintiff must prevail upon his
See, e.g., Thomas v. LTV Corp., 39 F.3d 611, 614 (5th Cir. 1994).
Bache v. Am. Tel. & Tel., 840 F.2d 283, 287 (5th Cir. 1988) (citations omitted).
120 Id. (citing Vaca v. Sipes, 386 U.S. 171 (1967)).
121 Id. at 287–88 (quoting DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 164–65 (1983)). “The
interdependency arises from the nature of the collective bargaining agreement. If the arbitration and
grievance procedure is the exclusive and final remedy for breach of the collective bargaining agreement, the
employee may not sue his employer under § 301 until he has exhausted the procedure. Further, he is bound
by the procedure’s result unless he proves the union breached its duty of fair representation.” Daigle v. Gulf
State Util. Co., 794 F.2d 974, 977 (5th Cir. 1986) (citations omitted).
122 Daigle v. Gulf State Util. Co., 704 F.2d 974, 977 (5th Cir. 1986) (quotations omitted). See also Landry v.
The Cooper/T. Smith Stevedoring Co., Inc., 880 F.2d 846, 851 (5th Cir. 1989).
123 Barrett v. Ebasco Constructors, Inc., 868 F.2d 170, 172 (5th Cir. 1989). “Establishing the Union’s breach
of duty of fair representation is an ‘indispensable predicate’ for a section 301 action against the [employer].”
Sawyer v. Am. Postal Workers Union, AFL-CIO, No. 3:09-cv-1780, 2011 WL 6029925, at *6 (N.D. Tex.
Nov. 30, 2011) (citing Thomas v. LTV Corp., 39 F.3d 611, 621–22 (5th Cir. 1994)).
118
119

25

unfair representation claim before he may even litigate the merits of his § 301 claim
against the employer.” 124
The Court has converted the USW International and the Local Union’s motions to
dismiss under Rule 12(b)(6) to motions for summary judgment. As a result, the Motiva
and Shell defendants’ motion to dismiss McNealy’s Section 141 claims under Rule 12(b)(6)
must also be converted to a motion for summary judgment.
h.

Article III, Section 2, Clause 1 of the United States Constitution

Article III, Section 2, Clause 1, of the United States Constitution defines the judicial
power of federal courts. Article III, Section 2, Clause 1, does not provide a private right of
action. Any cause of action McNealy attempts to assert under Article III, Section 2, Clause
1, of the United States Constitution must be dismissed with prejudice.
III.

Saudi Refining, Inc. (R. Doc. 138, 212)
Saudi Refining, Inc. (“Saudi Refining”) seeks summary judgment dismissing

McNealy’s claims.
McNealy pursues causes of action against Saudi Refining under (1) 42 U.S.C. §
1981; and (2) 42 U.S.C. § 1985(2) and (3).125 McNealy also argues Saudi Refining is liable
under the state-law theory of vicarious liability for the intentional acts and omissions of
Motiva’s administrators, managers, staff, agents, representatives, and successors. 126
McNealy’s claims against Saudi Refining are based entirely on Saudi Refining’s 50
percent ownership interest in Motiva Enterprises, LLC, 127 and McNealy’s argument that
Saudi Refining is responsible for the actions of its alter ego, Motiva. 128 In the third-

United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 67 (1981).
R. Doc. 209-1 at 3.
126 R. Doc. 209-1 at 3.
127 R. Doc. 114 at 5.
128 Doc. 190-2 at 3.
124
125

26

amended complaint, McNealy alleges that Saudi Refining and the Shell Defendants
“equally own and operate Motiva Enterprises, LLC[,] through [a] joint venture.” 129
McNealy alleges Saudi Refining, as part-owner of Motiva, is vicariously liable for Motiva’s
“intentional acts / omissions” and the “intentional nature causing injuries or damages”
he sustained. 130
In support of its motion for summary judgment, 131 Saudi Refining attaches its
statement of undisputed facts, 132 and the declaration of Darryl R. Wong. 133 Wong has
been employed by Saudi Refining since 2007 and his duties and responsibilities include
oversight of Saudi Refining’s investment in Motiva. 134 Wong declares that Saudi Refining
did not employ any workers at the Motiva refinery in Norco; that Motiva, Shell Chemical,
L.P., and Shell Oil are entirely separate entities from Saudi Refining; that Motiva has its
own employees and runs its Norco refinery without any day-to-day involvement by Saudi
Refining; that Saudi Refining does not have any role in hiring, direction of work,
discipline, or firing of Motiva employees at the refinery; that Saudi Refining is not a party
to a contract with McNealy or the Union; that Saudi Refining was not aware of and played
no role in the incidents alleged by McNealy; and that Saudi Refining had no involvement
in the Met-Life benefits plan or the determination of benefits under that plan. 135
McNealy argues the declaration of Wong is unsworn and, as a result, may not be
considered on summary judgment. McNealy is incorrect, as the declaration was given
under penalty of perjury that the statements therein are true and correct. The Fifth Circuit

R. Doc. 114 at 16.
R. Doc. 114 at 17.
131 R. Doc. 138-2.
132 R. Doc. 138-3.
133 R. Doc. 138-2.
134 R. Doc 138-3 at 1, n.1.
135 R. Doc. 138-2 at 1–3.
129

130

27

has held that such a statement may be considered on summary judgment.

136

McNealy

also disputes most of Saudi Refining’s Statement of Undisputed Facts, 137 but offers no
competent summary judgment evidence to establish that the facts as stated by Saudi
Refining are in dispute. 138 The Court finds that there are no material facts in dispute with
respect to the basis of Saudi Refining’s motion for summary judgment.
The only remaining issue is whether Saudi Refining is entitled to judgment as a
matter of law that Saudi Refining is not liable for the alleged conduct of Motiva or its
employees as a result of its ownership interest in Motiva, and that there are no grounds
for holding Saudi Refining liable because it had no involvement in the acts of which
McNealy complains.
An owner of a limited liability company may not be held liable for any debt,
obligation, or liability of the limited liability company based solely on its status as an
owner, and it is not a proper party to an action against the limited liability company based
solely on its status as an owner. 139 The same is true under federal and state employment
discrimination laws. Courts have routinely recognized the important public policy
considerations underlying corporate separateness and refused to pierce the corporate veil

See Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306–07 (5th Cir. 1988) (citing 28 U.S.C. § 1746).
R. Doc. 138-3.
138 R. Doc. 190-2.
139 See La. Rev. Stat. § 12:1320 (B) ([N]o member, manager, employee or agent of a limited liability company
is liable in such capacity for a debt, obligation, or liability of the limited liability company.”); La. Rev.
Stat. § 12:1320 (C) (A member, manager, employee, or agent of a limited liability company is not a proper
party to a proceeding by or against a limited liability company, except when the object is to enforce such
a person’s rights against or liability to the limited liability company.”). Motiva is a Delaware corporation
and Delaware law, like Louisiana law, also limits the liability of LLC members for the debts, obligations,
and liabilities of the LLC. See 6 Del. C. § 18-303(a) (“The debts, obligations, and liabilities of a limited
liability company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the limited liability company, and no member or manager of a limited liability company shall
be obligated personally for any such debt obligation or liability of the limited liability company solely by
reason of being a member or acting as a manager of the limited liability company.”).
136
137

28

in the employment discrimination context. 140 The doctrine of limited liability “creates a
strong presumption that a parent corporation is not the employer of its subsidiary’s
employees.” 141 Thus, “only evidence of control suggesting a significant departure from
the ordinary relationship between a parent and its subsidiary – domination similar to that
which justifies piercing the corporate veil – is sufficient to rebut this presumption, and to
permit an inference that the parent corporation was a final decision-maker in its
subsidiary’s employment decision.” 142
The Fifth Circuit considers four factors in determining whether an entity related to
an employer may be liable under Title VII as a joint employer, including (1) interrelation
of operations, (2) centralized control of labor relations, (3) common management, and
(4) common ownership or financial control. 143 The second of these four factors, however,
is the key factor, “such that courts have focused exclusively on one question: which entity
made the final decisions regarding employment matters relating to the person claiming
discrimination.”

144

The courts of this district have used the same analysis when

addressing the liability of an owner of a limited liability company under federal and state
employment discrimination laws. 145
It is undisputed that Saudi Refining was not McNealy’s employer; that Saudi
Refining did not hire, direct the work of, supervise, or fire Motiva’s employees; and that

Skidmore v. Precision Printing & Packaging, Inc., 188 F.3d 606, 616-17 (5th Cir. 1999) (finding that
parent company was not liable for alleged employment discrimination claims against subsidiary); Bass v.
Lifecare Holdings, Inc., No. 99-1864, 2000 WL 377815, at *3–4 (E.D. La. Apr. 12, 2000) (same); Wilkerson
v. USI Gulf Coast Inc., No. 01-2748, 2002 WL 1268405, at *3 (E.D. La. Jun. 4, 2002) (refusing to find
employer’s holding company liable for alleged employment discrimination by employer).
141 Bass, 2000 WL 377815, at *3–4 (quoting Lucky v. FoxMeyer Health Corp., 129 F.3d 773, 777 (5th Cir.
1997)).
142 Bass, 2000 WL 377815, at *3–4.
143 Trevino v. Celanese Corp., 710 F.2d 397 (5th Cir. 1983).
144 Skidmore, 188 F.3d at 617.
145 See, e.g., Bass, 2000 WL 377815.
140

29

Saudi Refining had no involvement in the decisions to discipline and terminate McNealy
or any of the other conduct of which McNealy complains. It is also undisputed that Saudi
Refining was not a party to the collective bargaining agreement between Motiva and the
Union. 146
Saudi Refining is entitled to summary judgment and the 42 U.S.C. § 1981, 42 U.S.C.
§ 1985(2) and §1985(3) claims against it are dismissed with prejudice.
IV.

Equal Employment Opportunity Commission (R. Doc. 146)
The Equal Employment Opportunity Commission (the “EEOC”) moves to dismiss

McNealy’s claims against it under Rule 12(b)(1) and Rule 12(b)(6).
McNealy alleges he filed complaints with the EEOC in 2012, 2013, and 2015, but
the EEOC “failed to investigate” his complaints. 147 McNealy thus alleges the EEOC denied
him his right to petition the court under the First Amendment to the United States
Constitution. 148 McNealy also alleges the EEOC had a “duty to investigate, but failed to
do so,” in violation of the due process clause of Fifth Amendment. 149 McNealy’s counsel
has acknowledged that his causes of action against the EEOC are for violations of (1) the
First Amendment’s petition and assembly clauses; (2) the Fifth Amendment’s due process
clause; (3) the Federal Tort Claims Act, 28 U.S.C. § 1346; and (4) La. Civ. Code art. 2315. 150
a.

The First & Fifth Amendments to the United States Constitution

McNealy asserts causes of action for violations of the First and Fourteenth
Amendments against the EEOC. The EEOC correctly points out that McNealy’s claims

R. Doc. 138-3.
R. Doc. 114 at 13.
148 R. Doc. 114 at 13.
149 R. Doc. 114 at 13.
150 Counsel for Plaintiff agreed that the chart attached to the Minute Entry of the status conference held on
July 8, 2016 included all causes of action against each defendant. R. Doc. 209-1 at 4.
146
147

30

against it are barred under the doctrine of sovereign immunity. 151 “The basic rule of
federal sovereign immunity is that the United States cannot be sued without the consent
of Congress.” 152 This immunity from suit extends to the agencies and officers of the
United States, such as the EEOC. 153 Thus, suits against agencies of the United States are
barred, unless there is a waiver of sovereign immunity. “A waiver of the Federal
Government’s sovereign immunity must be unequivocally expressed in the statutory text
and will not be implied.” 154 The “[p]laintiff bears the burden of showing Congress’s
unequivocal waiver of sovereign immunity.” 155 Congress has not waived the sovereign
immunity of the United States or its agencies with respect to constitutional violations.156
Thus, the United States, the agencies of the United States, including the EEOC, and
federal officers or employees acting in their official capacities, are immune from suit for
federal constitutional violations under the doctrine of sovereign immunity. 157 These

R. Doc. 146-1 at 6.
Block v. North Dakota ex rel. Bd. of Univ. and Sch. Lands, 461 U.S. 273, 287 (1983).
153 Hawaii v. Gordon, 373 U.S. 57, 58 (1963). See also F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (“Absent
a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”). For the
proposition that the EEOC is an agency of the United States for purposes of sovereign immunity, see
Newsome v. E.E.O.C., 301 F.3d 227, 232–33 (5th Cir. 2002).
154 Lane v. Pena, 518 U.S. 187, 192 (1996). See also Soudavar v. F.A.A., 45 F. App’x 323 (5th Cir. 2002)
(quoting Interfirst Bank Dallas, N.A. v. United States, 769 F.2d 299, 310 (5th Cir. 1985)) (internal
quotation marks omitted) (“Waiver of the United States’ sovereign immunity must be expressly stated by
congress and should not be inferred.”).
155 St. Tammany Parish ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009)
(citations omitted). See also Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009); Alcorn v.
Shinseki, No. 09-3744, 2009 WL 3833975, at *2 (E.D. La. Nov. 10, 2009) (“The complaint at no point
mentions a waiver of sovereign immunity for this type of suit, much less an unequivocal one, and he has
not responded to this motion to dismiss. Alcorn has therefore not carried his burden of demonstrating
‘Congress’s unequivocal waiver of sovereign immunity,’ and the Court will dismiss the action for want of
subject matter jurisdiction.”).
156 Interfirst Bank Dallas, N.A. v. United States, 769 F.2d 299, 309 (5th Cir. 1985) (“The Constitution does
not waive the Government’s sovereign immunity in a suit for damages. . . . Suits for damages against the
United States based on the Constitution are not contemplated by Bivens and its progeny.”). See also
Wheeler, 2013 WL 1091242, at *5 (citing Interfirst) (“[T]he United States has not waived its sovereign
immunity for constitutional torts . . . .”).
157 “A long line of cases holds that constitutional claims for damages may not be brought against the federal
government itself, but may proceed only against government officials on a Bivens theory.” James E.
Pfander, David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98 GEO. L.J.
117, 135 (2009) (citing cases).
151

152

31

claims against the EEOC must be dismissed with prejudice under Rule 12(b)(1) for lack of
subject matter jurisdiction.
The Court notes that, in any event, the First & Fifth Amendments in-and-ofthemselves provide no independent cause of action. 158 Instead, Section 1983 is generally
the appropriate vehicle to enforce rights guaranteed by the Constitution. 159 Section 1983,
however, only “provides a cause of action against any person who deprives an individual
of federally guaranteed rights ‘under color’ of state law.” 160 Section 1983 does not provide
a cause of action against the federal government or individuals acting under color of
federal law. The Supreme Court’s decision in Bivens v. Six Unknown Agents of the
Federal Bureau of Narcotics is the federal counterpart to Section 1983, as Bivens extends
the protections afforded by Section 1983 to parties injured by federal actors, who are not
otherwise liable under Section 1983. 161 The Court notes, however, that “Bivens authorizes
suits only against individual federal officers, not against the United States.” 162 In this case,
McNealy has no Section 1983 claim against the United States or its agencies and has not

Berger v. City of New Orleans, 273 F.3d 1095 (5th Cir. 2001) (citing Hearth, Inc. v. Dep’t of Public
Welfare, 617 F.2d 381, 382 (5th Cir. 1980)). See also Garrett v. City of Houston, Tex., 102 F. App’x 863,
864 (5th Cir. 2004).
159 See Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002) (noting Section 1983 provides a mechanism for
enforcing individual rights ensured by federal statutes and the United States Constitution).
160 Filarsky v. Delia, 132 S. Ct. 1657, 1661 (2012) (citing 42 U.S.C. § 1983) (emphasis added).
161 Abate, 993 F.2d at 110–11. See also Solesbee v. Nation, No. 3:06-cv-0333, 2008 WL 244343, at *7 (N.D.
Tex. Jan. 29, 2008) (internal quotation marks omitted) (citations omitted) (“Bivens, of course, is the
counterpart to 42 U.S.C. § 1983, and extends the protections afforded under § 1983 to parties injured by
federal actors.”); see also Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388, 397 (1971).
162 Wheeler v. Ceniza, No. 3:12-cv-1898, 2013 WL 1091242, at *5 (N.D. Tex. Mar. 15, 2013) (citing
Williamson v. United States Dep’t of Agriculture, 815 F.2d 368, 380 (1987) (noting Bivens action only
applies against federal officers “in their individual capacities . . . . [while t]he United States and its officers
in pursuit of their official duties remain protected by sovereign immunity”)). “A Bivens claim is a judicially
created counterpart to a 42 U.S.C. § 1983 civil rights action and is properly brought only against federal
officials who have allegedly denied a plaintiff’s constitutional rights, in their individual capacities. An
extension of a Bivens action to federal agencies of the Federal Government is not supported by the logic of
Bivens.” Brown v. Federal Bureau of Investigation, No. 5:11-cv-63, 2012 WL 1038809, at *1 (S.D. Miss.
Feb. 1, 2012) (citations omitted).
158

32

asserted a Bivens action against any federal officers or employees in their individual
capacities. To the extent that the Plaintiff brings Section 1983 claims against the EEOC,
even if the United States had waived its sovereign immunity, those claims would be
dismissed with prejudice under Rule 12(b)(1) for lack of subject matter jurisdiction.
b.

The Federal Tort Claims Act

McNealy argues the “Federal Tort Claims Act (“FTCA”) waives [the] sovereign
immunity of the government, and allows [suits] for damages.” 163 It is well-accepted the
FTCA is the exclusive remedy for tort suits against the United States, and the FTCA thus
operates as a limited waiver of sovereign immunity. 164 The FTCA’s waiver of sovereign
immunity is, however, subject to several exceptions. 165 As a general rule, “[i]t is beyond
dispute that the United States, and not the responsible agency or employee, is the proper
party defendant” in an FTCA suit. 166 Thus, McNealy does not have a valid FTCA claim
against the EEOC. The FTCA claim against the EEOC must be dismissed with prejudice
under Rule 12(b)(1) for lack of subject matter jurisdiction.
V.

Metropolitan Life Ins. Co. (R. Doc. 210)
Met-Life seeks summary judgment under Rule 56 of the Federal Rules of Civil

Procedure. Met-Life argues McNealy’s claims against it should be dismissed with
prejudice on summary judgment, as there are no genuine issues of material act, and MetLife is entitled to judgment as a matter of law. McNealy’s causes of action against MetR. Doc. 151-1 at 1.
Willougby v. United States ex rel. United States Dep’t of the Army, 730 F.3d 476, 479 (5th Cir. 2013)
(citing 28 U.S.C. § 2679(a)).
165 See, e.g., Davila v. United States, 713 F.3d 248, 256 (5th Cir. 2013).
166 Galvin v. Occupational Safety & Health Admin., 860 F.2d 181, 183 (5th Cir. 1998). See also Talavera v.
United States, No. 4:14-cv-03329, 2016 WL 4398678, at *4 (S.D. Tex. Aug. 17, 2016); Valentine v. Veterans
Affairs, No. 3:16-cv-1221, 2016 WL 4257444, at *2 (N.D. Tex. July 13, 2016) (“[A]n FTCA claim brought
against a federal agency or employee rather than the United States shall be dismissed for want of
jurisdiction.”); Schexnayder v. St. Charles Parish, Nos. 12-416, 12-542, 2012 WL 1357784, at *2 (E.D. La.
Apr. 19, 2012); Michalik v. Hermann, No. 99-3496, 2001 WL 434489, at *1 (E.D. La. Apr. 26, 2001).
163

164

33

Life are for violations of (1) 29 U.S.C. § 1001; (2) La. Civ. Code art. 1906; (3) La. Rev. Stat.
§ 22:655; (4) La. Rev. Stat. 22:1269; (5) La. Rev. Stat. 22:1892; and (6) La. Rev. Stat. §
22:1973. 167
Title 29, United States Code, Section 1001, marks the beginning of the Employee
Retirement Income Security Act (“ERISA”). Section 1001 sets forth the congressional
findings and declaration of policy associated with ERISA and, itself, does not authorize a
private cause of action. The Court has assumed McNealy intends to pursue a cause of
action under Section 1132(a)(1)(B). Section 1132(a)(1)(B) authorizes a private cause of
action by an ERISA participant or beneficiary “to recover benefits due to him, to enforce
his rights under the terms of the plan, or to clarify his rights to future benefits under the
terms of the plan.” 168 A claimant who is denied benefits under an ERISA plan must
exhaust all administrative remedies afforded by the plan before instituting litigation for
recovery of benefits. 169 A claimant’s failure to exhaust is proper grounds for dismissal. 170
In this case, it is undisputed that Met-Life issued a group insurance policy to Shell
Oil Company, 171 and the long-term disability benefits under the policy are governed by
ERISA. 172 It is also undisputed that McNealy participated in and was covered by the group
insurance policy, 173 and that McNealy submitted a claim for long-term disability benefits
167 In his memorandum in opposition to Met-Life’s motion for summary judgment, the Plaintiff states that
he is bringing a claim against Met-Life under 29 U.S.C. Section 502(a). R. Doc. 220-1 at 1. Counsel for
Plaintiff agreed that the chart attached to the Minute Entry of the status conference held on July 8, 2016
included all causes of action against each defendant. No claim against Met-Life under 29 U.S.C. Section
502(a) is listed, Doc. 209-1 at 5, and such a claim is not addressed herein.
168 29 U.S.C. § 1132(a)(a)(B).
169 Lacy v. Fulbright & Jaworski, 405 F.3d 254, 256 (5th Cir. 2005) (per curiam).
170 Medina v. Anthem Life Ins. Co., 983 F.2d 29, 33 (5th Cir. 1993).
171 R. Doc. 210-3 at 1, ¶1; R. Doc. 220-3 at 1, ¶1.
172 R. Doc. 210-3 at, ¶3; R. Doc. 220-3 at 1–2, ¶3. Plaintiff’s short-term disability benefits were paid. He was
paid long-term disability benefits for some period of time but those benefits were terminated on March 25,
2014. R. Doc. 210-2. This termination is the basis for Plaintiff’s ERISA claim in this action. To the extent
Plaintiff makes claims against Met-Life based on Louisiana law, rather than ERISA, those claims are not
address in this section.
173 R. Doc. 210-3 at 1, ¶4; R. Doc. 220-3 at 2, ¶4.

34

under the policy. 174 The parties dispute, however, whether McNealy exhausted the
administrative remedies available under the group policy with respect to his long-term
disability claim. 175 In support of its motion for summary judgment, Met-Life offers a
declaration executed by Matthew Hallford, a Met-Life litigation specialist. 176 The
declaration states (1) McNealy submitted a claim for long-term disability benefits under
the group insurance policy, (2) the claim was terminated by Met-Life on March 25, 2014,
and (3) McNealy did not administratively appeal the termination. 177 Met-Life argues it
has negated an essential element of McNealy’s claim as he has not exhausted his
administrative remedies. McNealy disputes Met-Life’s representation that he did not
appeal the termination of his long-term disability benefits claim. 178 In McNealy’s
statement of undisputed facts, he states that he forwarded a letter to Met-Life indicating
his “intent to appeal” the termination of his long-term disability claim. 179 Hallford
declares in his affidavit that the documents attached are included in the administrative
record for McNealy. 180 Included in the attachments is the letter from McNealy to Met-Life
dated March 24, 2014 181 and the letter from Met-Life to McNealy dated March 25, 2014. 182
Both letters reference Claim # 731209111106, which is the Plaintiff’s claim for long-term
disability benefits. In reality, this is not a factual dispute, but an issue of whether Met-Life

R. Doc. 210-3 at 1, ¶5; R. Doc. 220-3 at 2, ¶5.
R. Doc. 210-3 at 2, ¶¶6–8; R. Doc. 220-3 at 2, ¶¶6–8.
176 R. Doc. 210-2 at 1–2 (Declaration of Matthew Hallford). Although this declaration is unsworn, Hallford
does declare under penalty of perjury that the statements contained therein are true and correct. The Fifth
Circuit has held that such a statement may be considered on summary judgment. See Nissho-Iwai Am.
Corp, 845 F.2d at 1306–07.
177 R. Doc. 210-2 at 2 (Declaration of Matthew Hallford).
178 See R. Doc. 220-3 at 2.
179 R. Doc. 220-2 at 3.
180 R. Doc. 210-2 at 2, at M-0332 and M-0335, respectively.
181 R. Doc. 210-2 at 58.
182 R. Doc. 210-2 at 59–60.
174
175

35

is entitled to judgment as a matter of law. The resolution of this dispute turns on whether
McNealy’s March 24, 2014 letter constituted an appeal of the termination of his benefits.
Met-Life attached the Shell Long Term Disability Benefits Plan/SPD to the
declaration of Matthew Hallford. 183 Met-Life argues that its March 25, 2014 letter
informed Plaintiff of the plan’s requirement that his written appeal be filed within 180
days of his receipt of the denial and that it include “[a]n explanation of why you are
appealing the initial determination.” 184 In its letter, Met-Life also requested the following
additional information from the Plaintiff: medical records from September 2013 which
are to include physical examination findings; notes to address any improvements,
restrictions, and limitations that would prevent a return to work due to sleep apnea from
all treating providers; and any additional comments, documents, records or other
information relating to the claim that the Plaintiff deemed appropriate for Met-Life to
give his appeal proper consideration. 185 Met-Life argues the Plaintiff’s March 24, 2014
letter was not sufficient to satisfy the requirements of the plan with respect to the filing of
an appeal, as it was only notice of an intent to appeal, did not contain an explanation of
why he was appealing the determination, and did not include the information requested
by Met-Life. The Plaintiff argues his letter satisfied the requirements of the plan and
exhausted his administrative remedies and that the additional information requested by
Met-Life was not necessary, as Met-Life already had a medical release signed by him and
medical information sufficient to justify his claim. 186

R. Doc. 210-1 at 3.
R. Doc. 210-2 at 38.
185 R. Doc. 210-1 at 4.
186 R. Doc. 2210-1 at 8.
183

184

36

The Fifth Circuit has held that notice of the intent to file an appeal is not an appeal
and, instead, is merely the expression of an intent to appeal. 187 The Fifth Circuit held
further in the Swanson case that the failure to include factual or substantive statements
in a notice of appeal provides nothing for the insurer to consider on appeal and does not
constitute an appeal.

188

This Fifth Circuit decision is on point with the issue now before

this Court.
The Court finds that Plaintiff did not exhaust his administrative remedies with
respect to Met-Life’s termination of his benefits claim. His March 24, 2014 letter was
notice of an intent to appeal rather than an appeal, did not contain an explanation of why
he was appealing the determination, and did not include the information requested by
Met-Life. Because McNealy failed to exhaust his administrative remedies, he is unable to
maintain a cause of action in this court against Met-Life under Section 1132 for the denial
of ERISA benefits.
The sole question remaining is whether McNealy’s Section 1132 claim against MetLife should be dismissed with prejudice or without prejudice. “While failure to exhaust
administrative remedies usually results in dismissal without prejudice, when exhaustion
is no longer possible, dismissal may be with prejudice.” 189 Met-Life’s termination of
benefits letter is dated March 24, 2014. It is clear that the applicable time limit for
exhaustion of McNeal’s administrative remedies has passed. As a result, McNealy’s
Section 1132 claim against Met-Life is dismissed with prejudice.

Swanson v. Hearst Corp. Long Term Disability Plan, 586 F.3d 1016, 1018–19 (5th Cir. 2009).
Id. at 1019. In Holmes v. Proctor & Gamble Disability Benefit Plan, 228 F. App’x 377 (5th Cir. 2007), an
unpublished per curiam opinion, the Fifth Circuit held notice of intent to appeal did not amount to
substantial compliance with a plan’s procedures.
189 Dawson Farms, LLC v. Farm Serv. Agency, 504 F.3d 592, 607 (5th Cir. 2007).
187

188

37

VI.

All Defendants (State Law Claims)
McNealy’s other claims against the Defendants are state law claims over which the

Court possesses only supplemental jurisdiction.
Title 28, United States Code, Section 1367(c), provides that district courts may
decline to exercise supplemental jurisdiction over state law claims if, inter alia, “the
district court has dismissed all claims over which it has original jurisdiction.”
Because the Court converted certain of Defendants’ motions to summary judgment
motions, the Court defers ruling on whether to exercise supplemental subject matter
jurisdiction on McNealy’s state claims until after the Court rules on the motions for
summary judgment.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the pending dispositive motions
filed by the Defendants are GRANTED IN PART and DEFERRED IN PART. 190
IT IS FURTHER ORDERED that McNealy’s federal claims against USW
International and the Local Union under 42 U.S.C. Section 301; 42 U.S.C. § 1985(3); 42
U.S.C. § 1986; and 29 U.S.C. § 141 are DEFERRED and converted to motions for
summary judgment. 191 IT IS FURTHER ORDERED that McNealy’s federal claims
against USW International and the Local Union under 42 U.S.C. § 1985(2) and 29 U.S.C.
§ 151 are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that McNealy’s federal claims against Motiva and
the Shell Defendants under 42 U.S.C. § 1985(2); 29 U.S.C. § 1001 and 1132; 29 U.S.C. §
151; and Article III, Section 2, Clause 1 of the United States Constitution are DISMISSED
R. Docs. 117, 118, 121, 138, 146, 210, 215, 216.
At the status conference scheduled on October 28, 2016, the Court will discuss whether additional
discovery is needed and the timing of the presentation of additional briefing and materials to the Court.
190
191

38

WITH PREJUDICE. McNealy’s Title VII and ADA claims against Motiva and the Shell
Defendants are DISMISSED WITHOUT PREJUDICE for failure to exhaust
administrative remedies. McNealy’s claims under 42 U.S.C. § 1981; 42 U.S.C. § 1985(3);
42 U.S.C. § 1986; and 42 U.S.C. § 141 are DEFERRED and converted to motions for
summary judgment. 192
IT IS FURTHER ORDERED that McNealy’s federal claims against Saudi
Refining, Inc., under 42 U.S.C. § 1981 and 42 U.S.C. § 1985(2) and (3) are DISMISSED
WITH PREJUDICE.
IT IS FURTHER ORDERED that McNealy’s federal claims against the EEOC
under the First and Fifth Amendments to the United States Constitution and the Federal
Tort Claims Act are DISMISSED WITH PREJUDICE for lack of subject matter
jurisdiction.
IT IS FURTHER ORDERED that McNealy’s federal claim against Met-Life
under 29 U.S.C. § 1001 is DISMISSED WITH PREJUDICE for failure to exhaust
administrative remedies.
IT IS FURTHER ORDERED that the Court DEFERS ruling on McNealy’s state
law claims until after its rulings on the motions for summary judgment filed in accordance
with the Court’s scheduling order. 193
New Orleans, Louisiana, this 17th day of October, 2016.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

192 At the status conference scheduled on October 28, 2016, the Court will discuss whether additional
discovery is needed and the timing of the presentation of additional briefing and materials to the Court.
193 R. Doc. 206.

39