McNealy v. Becnel et al

Filing 343

ORDER AND REASONS: ORDERED that 275 Motivas and the 278 , 279 Shell Defendants' Motions for Summary Judgment dismissing all of Plaintiff's claims with prejudice is GRANTED IN PART and DENIED IN PART. The Defendants' Motions for Summary Judgment are granted with respect to Plaintiff's federal claims. The Defendants' motions are denied to the extent the Defendants request that Plaintiff's state law claims be dismissed with prejudice. FURTHER ORDERED that Pl aintiff's Section 1981, 1985(2) and (3), 1986, and 141 claims are hereby DISMISSED WITH PREJUDICE. FURTHER ORDERED that Plaintiff's state law claims are DISMISSED WITHOUT PREJUDICE pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Signed by Judge Susie Morgan on 6/5/2017. (clc)

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
Before the Court are Motions for Summary Judgment filed by Defendants Motiva
Enterprises, LLC (“Motiva”), 1 Shell Oil Company, 2 and Shell Chemical L.P. 3 seeking the
dismissal of Plaintiff’s claims with prejudice. Plaintiff Newton McNealy opposes these
motions. 4 For the following reasons, the Defendants’ motions for summary judgment are
GRANTED IN PART. The motions are DENIED IN PART to the extent movants seek
dismissal of Plaintiff’s state law claims with prejudice.
FACTUAL & PROCEDURAL BACKGROUND
McNealy originally filed this civil action on September 22, 2014, and has been
granted leave of court on multiple occasions to amend his complaint. 5 On December 22,
2015, Shell Oil Company, along with Motiva Enterprises LLC (“Motiva”) and Shell
Chemical LP, filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. 6 On October 17, 2016, the Court issued its Order regarding the then
pending dispositive motions that had been filed by the Defendants in this case. 7 In its
R. Doc. 275.
R. Doc. 278.
3 R. Doc. 279.
4 R. Docs. 309, 310, 312.
5 McNealy’s complaints include Record Document 1 (Complaint), Record Document 37 (Amended and
Supplemental Complaint), Record Document 60 (Second-Amended Complaint), Record Document 114
(Third-Amended Complaint), and Record Document 260 (Fourth-Amended Complaint).
6 R. Doc. 121.
7 R. Doc. 237.
1

2

1

Order, the Court dismissed Plaintiff’s Title VII, ADA and ERISA claims and converted
Motiva, Shell Oil Company, and Shell Chemical LP’s 12(b)(6) motion to dismiss with
respect to Plaintiff’s Section 1981, 1985(2) and (3), 1986, and 141 claims into motions for
summary judgment. 8 The Court deferred on ruling on whether to exercise supplemental
subject matter jurisdiction on McNealy’s state law claims until after the Court ruled on
the Defendants’ motions for summary judgment. 9 On February 7, 2017, pursuant to the
Court’s Order, 10 Shell Oil Company and Shell Chemical LP (“Shell Defendants”) filed their
respective motions for summary judgment. 11 On that same day, Motiva filed its motion
for summary judgment. 12
Plaintiff is an African-American male who was originally hired by Shell Chemical
LP in 2006 to work as a machinist at a chemical plant in Norco, Louisiana. The chemical
plant shares the same industrial site as Motiva Enterprises LLC’s Norco refinery. In July
2008, McNealy voluntarily and successfully bid to transfer his employment to Motiva as
a machinist at the refinery. McNealy volunteered for a “turnaround” shift in October and
November 2011. Three incidents allegedly occurred during this turnaround shift.
McNealy alleges, on or about November 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 a company truck to recover whereupon his co-workers “wrapped and sealed” him in
the vehicle and covered the windows with shaving cream. McNealy also alleges, in the

See id.
Id. at 38.
10 R. Doc. 267.
11 R. Docs. 278, 279.
12 R. Doc. 275.
8
9

2

days that followed, he was verbally assaulted, threatened, sodomized, 13 and sexually
harassed by his white co-workers, which contributed to a hostile work environment.
McNealy thus alleges the various Defendants condoned “inappropriate behavior in the
workplace,” and ultimately violated the Collective Bargaining Agreement between Motiva
and the Plaintiff’s union.
Plaintiff also alleges that during his employment at the Norco Refinery similarly
situated white employees were appointed or promoted to upper echelon job positions
without his being allowed to compete for the positions.
In his Fourth Amended Complaint, McNealy alleges, as a result of this treatment,
he developed and has been diagnosed with post-traumatic stress disorder, anxiety,
paranoia, and depression, among other conditions. As a result of his allegedly raising
complaints about the incidents and the hostile work environment created thereby,
McNealy alleges the Defendants retaliated against him. 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 after two years, his employment
relationship with Motiva was terminated.
LEGAL STANDARD
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.”14 “An issue is material if its resolution could affect the outcome of the action.” 15

13 Although Plaintiff alleges he was sodomized, Plaintiff testified at his deposition that he was dressed in a
jumpsuit and underwear at the time of the incident and there was no contact with his skin and no
penetration. R. Doc. 275-3 at 33 ln. 9-19; R. Doc. 310-3 at 10 ¶ 15.
14 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
15 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).

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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.” 16 All reasonable inferences are drawn in favor of the nonmoving party.17
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. 18
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.’” 19 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
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist. 20
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. 21 When proceeding under the first option, if the
16 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).
17 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
18 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
19 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)).
20 Celotex, 477 U.S. at 322–24.
21 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

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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. 22 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.” 23 Under either scenario, the burden then shifts back to the movant to demonstrate
the inadequacy of the evidence relied upon by the nonmovant. 24 If the movant meets this
burden, “the burden of production shifts [back again] to the nonmoving party, who must
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).” 25 “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.” 26

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)).
22 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).
23 Celotex, 477 U.S. at 332–33.
24 Id.
25 Celotex, 477 U.S. at 332–33, 333 n.3.
26 Id.; see also First National Bank of Arizona, 391 U.S at 289.
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“[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.’” 27
LAW AND ANALYSIS
I.

Plaintiff’s Racial Discrimination Claims Under Section 1981
McNealy alleges race discrimination claims against Motiva under 42 U.S.C. § 1981

and the Louisiana Employment Discrimination Law (“LEDL”)

28

for unlawful

termination, retaliation, failure-to-promote, and hostile work environment. 29
a. Termination of Employment
McNealy alleges Motiva unlawfully discriminated against him on account of his
race when it terminated his employment on April 30, 2014.
It is undisputed that on November 10, 2011, McNealy met with Brandon Dufrene
(Routine Maintenance Execution Supervisor), David Naquin (Central Shop Mechanical
Quality Assurance/Quality Control), and Wilton Ledet (a representative of the United
Steelworks Union, Local 750 (the “Local Union”)).30 It is undisputed that the purpose of
this meeting was to discuss McNealy’s recent job-performance issues. 31 Motiva provides

27 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)).
28 As discussed in greater detail below, the Court declines to address the merits of Plaintiff’s state law claims.
See infra p. 28.
29 See R. Doc. 260.
30 R. Doc. 275-2 at ¶ 17; R. Doc. 310-3 at ¶ 17.
31 R. Doc. 275-2 at ¶ 18. In its Statement of Uncontested Facts, Motiva alleges “The purpose of the meeting
was to discuss McNealy’s recent job-performance issues. Id. Plaintiff denies this fact and instead states,
“The purpose of this meeting was to discuss alleged recent job performance issues.” R. Doc. 310-3 at ¶ 18
(emphasis added).

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the sworn declarations of Mary Snyder and Brandon Dufrene in which they testify that
the November 10, 2011 meeting was the first time that McNealy mentioned the crane box,
truck and “goosing” incidents to Motiva. 32 McNealy disputes that this was the first
knowledge Motiva had of these incidents because Motiva employees were involved and
Motiva had knowledge through them. 33 It does not appear, however, that McNealy
contests that this was the first time he mentioned these three incidents to Motiva’s
management. 34 It is uncontested that, following the meeting, Dufrene and Naquin
immediately reported McNealy’s claims to Mary Snyder in Motiva’s human resources
department. 35 According to Motiva, Snyder then requested another meeting with
McNealy to gather additional details about his claims and this meeting took place on
November 14, 2011. 36 Plaintiff denies the meeting took place at all. 37 It is undisputed that
after this date, Plaintiff took three months of FMLA leave and did not return to work until
February 29, 2012. 38 It is also undisputed that on February 29, 2012, Plaintiff returned
from his FMLA leave. 39 It is undisputed that upon his return, a meeting was held between
Plaintiff, Snyder, Dufrene, Ledet, and Tim Casey 40 to discuss reports that McNealy had

32 R. Doc. 275-2 at ¶ 20; See R. Doc. 310-3 at ¶ 20; R. Doc. 275-5 at ¶ 19 (Snyder’s Sworn Declaration); R.
Doc. 275-6 at ¶ 9 (Dufrene’s Sworn Declaration).
33 R. Doc. 310-3 at ¶ 20.
34 See id.
35 R. Doc. 275-2 at ¶ 22; R. Doc. 310-3 at ¶ 22; R. Doc. 275-5 at ¶ 19.
36 R. Doc. 275-2 at ¶ 23.
37 R. Doc. 310-3 at ¶ 23 (referencing Deposition of McNealy). In his deposition, Plaintiff states this meeting
never occurred. See R. Doc. 341-2 at 316. Although Plaintiff denies this meeting occurred, Exhibit 1
accompanying his Opposition to Motiva’s Motion for Summary Judgment contains notes from an interview
with Plaintiff occurring on November 14, 2011. R. Doc. 310-4.
38 R. Doc. 275-2 at ¶ 27; R. Doc. 310-3 at ¶ 27. In his Deposition, Plaintiff mentions that he took three
months FMLA leave. See R. Doc. 341-1 at 130. Additionally, Exhibit 1 to Plaintiff’s Opposition discusses
Plaintiff’s three month non-occupational disability leave from November 10, 2011 through February 28,
2012. R. Doc. 310-4 at 5.
39 R. Doc. 275-2 at ¶ 30; R. Doc. 310-3 at ¶ 30. Although Plaintiff states that he denies Motiva’s uncontested
material fact, it is clear from his response that he does not deny that Plaintiff returned from FMLA leave on
February 29, 2012. Id.
40 Tim Casey is identified as the Supervisor-Reliability for Instrument Maintenance. R. Doc. 275-5 at ¶ 29.

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been sleeping on the job and that one of his time cards was falsified. 41 Motiva offers
evidence that following this meeting, McNealy finished his shift before returning home. 42
In his opposition, Plaintiff denies this occurred and asserts that he did not finish his shift
and instead left immediately after the meeting concluded. 43 During his deposition,
however, McNealy affirmatively answered that he finished his shift before returning home
on February 29, 2012. 44 The parties agree that McNealy did not return to work after that
day and was subsequently placed on non-occupational disability leave. 45 It also is
uncontested that on February 6, 2014, Motiva informed McNealy via certified mail that,
if he did not return to work by April 30, 2014, the day his disability leave was set to expire,
his employment would be terminated per Motiva policy. 46 It also is uncontested that
McNealy did not return to work by April 30, 2014. 47 As a result, the parties agree that,
after more than two years on non-occupational disability leave, McNealy’s employment
relationship with Motiva was terminated on April 30, 2014. 48
Section 1981(a) provides that “[a]ll persons within the jurisdiction of the United
States shall have the same right in every State and Territory to make and enforce
contracts…” 49 Section 1981(b) defines the term “make and enforce contracts” to include
“the making, performance, modification, and termination of contracts, and the enjoyment
of all benefits, privileges, terms and conditions of the contractual relationship.” 50 The

R. Doc. 275-2 at ¶ 30; R. Doc. 275-5 at ¶ 29.
R. Doc. 275-2 at ¶ 30.
43 R. Doc. 310-3 at ¶ 30.
44 R. Doc. 341-1 at 141 (Plaintiff’s Deposition). In any event, this factual dispute is not material.
45 R. Doc. 275-2 ¶¶ 31, 34; R. Doc. 310-3 ¶¶ 31, 34.
46 R. Doc. 275-2 at ¶ 32; R. Doc. 310-3 at ¶ 32; R. Doc. 275-8.
47 R. Doc. 275-2 at ¶ 33; R. Doc. 310-3 at ¶ 33; R. Doc. 275-9.
48 R. Doc. 275-2 at ¶ 35; R. Doc. 275-9. The Plaintiff admits the employment relationship was terminated
on April 30, 2014 but argues that his termination was not proper. R. Doc. 310-3 at ¶¶ 35, 37.
49 42 U.S.C. § 1981(a).
50 Id. § 1981(b).
41

42

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standard of proof for Section 1981 claims is the same as for Title VII claims. Section 1981
claims are analyzed under the Title VII evidentiary framework. 51
Liability on a claim that an employer intentionally discharged an employee because
of race or national origin – i.e., a “disparate treatment” claim – “depends on whether the
protected trait actually motivated the employer’s decision.” 52 “[A] plaintiff can prove
disparate treatment either (1) by direct evidence that a workplace … decision relied
expressly on a protected characteristic, or (2) by using the burden-shifting framework set
forth in McDonnell Douglas.” 53
Plaintiff attempts to prove through direct evidence that the termination of his
employment relationship with Motiva was based on his race. “Direct evidence is evidence
that, if believed, proves the fact of discriminatory animus without inference or
presumption. In the Title VII context, direct evidence includes any statement or
document that shows on its face that an improper criterion served as a basis for the
adverse employment action.” 54 McNealy’s alleged direct evidence of discrimination is (1)
the remarks allegedly made to him by David Mendel in 2011 about a racist sign in
Mendel’s hometown, 55 and (2) the alleged use of racial slurs by Perry Montz in 2011. 56
Neither Mendel nor Montz was involved in McNealy’s termination, which occurred over
two years later. 57 As a result, this evidence, even if true, is not direct evidence of

Pegram v. Honeywell, Inc., 361 F.3d 272, 281 & n.7 (5th Cir. 2004); Roberson v. Alltel Info. Servs., 373
F.3d 647, 651 (5th Cir. 2002)).
52 Young v. United Parcel Service, Inc., --- U.S. ---, 135 S.Ct. 1338, 1345 (2015) (quoting Raytheon Co. v.
Hernandez, 540 U.S. 44, 52 (2003)).
53 Id.
54 Harry v. Dallas Hous. Auth., 662 F. App’x 263, 266 (5th Cir. 2016) (citations omitted).
55 See R. Doc. 310-13 at ¶ 32 (Plaintiff’s Affidavit).
56 R. Doc. 341-1 at 63 (Plaintiff’s Deposition).
57 The February 6, 2014 letter sent to McNealy stating that his employment would be terminated on April
30, 2014 in accordance with company policy was sent by Tammy Troxclair, a human resources associate at
Motiva. R. Doc. 275-8 (Termination Letter).
51

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discrimination because an inference is required to link the 2011 remarks to the 2014
termination of McNealy’s employment for an improper reason. 58 The Court finds that
McNealy has not adduced direct evidence of discrimination and, as a result, McNealy’s
claim that he was terminated because of discrimination must be evaluated using the
burden-shifting framework of McDonnell Douglas. 59
Under the McDonnell-Douglas framework, a plaintiff relying on circumstantial
evidence must first establish a prima facie case of discrimination. 60 If the plaintiff is
successful, the burden shifts to the defendant to proffer a legitimate, non-discriminatory
reason for its employment decision. 61If the defendant carries this burden, the inference
of discrimination disappears, 62 and the burden shifts back to the plaintiff to prove the
defendant's articulated reason (a) is mere pretext for discrimination, or (b), if true, is only
one of the reasons for its decision, and another "motivating factor" is the plaintiff's
protected characteristic. 63
In order to establish a prima facie case of unlawful termination on the basis of
race, a plaintiff must demonstrate that (1) he belongs to a protected class, (2) he was
qualified for the position, (3) he was discharged from the position, and (4) the employer
sought to replace him with a similarly qualified individual outside of the protected group
or that defendant treated individuals of a different race or gender more favorably than it
treated him. 64

See Harry, 662 F. App’x at 267.
See id.
60 Autry v. Fort Bend Ind. Sch. Dist., 704 F.3d 344, 347 (5th Cir. 2013).
61 Turner v. Kan. City. S. Ry. Co., 675 F.3d 887, 892 (5th Cir. 2012).
62 Davis v. Dall. Area Rapid Transit, 382 F.3d 309, 317 (5th Cir. 2004).
63 See Autry, 704 F.3d at 347.
64 See, e.g. Catchings v. St. Tammany Ass’n for Retarded Citizens, 2002 WL 31427324, at *1 (E.D. La. Oct.
28, 2002) (citations omitted).
58
59

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The parties do not dispute that the first three elements have been met. Motiva
argues McNealy is unable to establish the fourth element and his “prima facie case fails
because he cannot prove that Motiva sought to replace him with a non-African-American,
or that he was actually replaced by one.” 65 Motiva correctly notes that McNealy provides
no evidence whatsoever with respect to whether he was replaced and, if so, by whom, but
a plaintiff also may satisfy the fourth element of his prima facie case by demonstrating
the defendant treated individuals of a different race or gender more favorably than the
Defendant treated him. But neither did McNealy provide evidence that individuals of a
different race or gender were treated more favorably than he was. McNealy has failed to
create an issue of disputed fact with respect to whether Motiva, when it terminated his
employment relationship pursuant to company policy after two years of non-occupational
disability leave, treated him any differently or less favorably than others because of his
race. Because the Plaintiff has failed to prove the fourth element of his prima facie case
by a preponderance of the evidence, the burden does not shift to the Defendant to offer a
legitimate, non-discriminatory reason for Plaintiff’s termination, and the Court need not
engage any further in the McDonnell-Douglas burden-shifting analysis.
Nevertheless, assuming arguendo that McNealy established a prima facie case, the
Court finds that Motiva has offered a legitimate, non-discriminatory reason for his
termination – McNealy was terminated in accordance with company policy that
employment is terminated after a two-year non-occupational disability leave if the
employee does not return to work. It is undisputed that on February 6, 2014, Motiva
informed McNealy via certified mail that, if he did not return to work by April 30, 2014,

65

R. Doc. 275-1 at 10.
11

the day his disability leave was set to expire, his employment would be terminated per
Motiva policy. 66 Motiva presents the sworn declaration of Mary Snyder in which she
testifies that “from 2012-2014, Motiva terminated seven employees at the Refinery under
this very same policy, six of whom were Caucasian.” 67
Because Motiva has articulated a legitimate, non-discriminatory reason for his
termination, the burden shifts back to the Plaintiff to prove the defendant’s articulated
reason (a) is mere pretext for discrimination, or (b), if true, is only one of the reasons for
its decision, and another “motivating factor” is the Plaintiff’s protected characteristic. 68
Motiva argues “McNealy cannot carry his summary judgment burden under either
alternative.” 69
As the Supreme Court explained in Reeves v. Sanderson Plumbing Products, Inc.,
“Although intermediate evidentiary burdens shift back and forth under the framework,
the ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.”70 “To carry that
burden, the plaintiff must produce substantial evidence of pretext.” 71 “Evidence that the
proffered reason is unworthy of credence must be enough to support a reasonable
inference that the proffered reason is false; a mere shadow of doubt is insufficient.” 72 The
Fifth Circuit “has consistently held that an employee’s ‘subjective belief of discrimination’
alone is not sufficient to warrant judicial relief.” 73 In response to a motion for summary

R. Doc. 275-2 at ¶ 32 (citing R. Doc. 275-3 at 35 ln. 5-10); R. Doc. 310-3 at ¶ 32.
R. Doc. 275-1 at 10 (citing R. Doc. 275-5 at ¶ 32 (Declaration of Mary Snyder)).
68 See Autry, 704 F.3d at 347.
69 R. Doc. 275-1 at 10.
70 530 U.S. 133, 143 (2000) (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)
(internal quotations omitted)).
71 See Auguster v. Vermilion Par. Sch. Bd., 249 F.3d 400, 402-03 (5th Cir. 2001).
72 Id. at 403 (quoting Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999)).
73 Id. (quoting Bauer, 169 F.3d at 967) (citation omitted)).
66
67

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judgment, “it is therefore incumbent upon the non-moving party to present evidence –
not just conjecture and speculation – that the defendant retaliated and discriminated
against plaintiff on the basis of her race.” 74 Plaintiff has not put forth any evidence
supporting his claim that Motiva’s stated reason for his termination is merely pretext and
that, instead, Motiva intentionally discriminated against him on the basis of race when it
terminated his employment. 75
The Court must also consider whether McNealy can show that his race was a
motivating factor in his termination, often referred to as the mixed-motive alternative.
“The Fifth Circuit has not decided whether the mixed-motives alternative is available to §
1981 plaintiffs.” 76 Assuming that McNealy may avail himself of the mixed-motive
approach, McNealy still must offer sufficient evidence to create a genuine issue of fact
with respect to whether the employer’s reason, although true, is but one of the reasons for
its conduct, another of which was discrimination. 77 Although the Supreme Court, in
Desert Palace, Inc. v. Costa, explained that a plaintiff does not face a heightened
evidentiary burden in mixed-motive cases, a plaintiff must still put forth evidence, which
may be circumstantial, demonstrating by a preponderance of the evidence that
discrimination was a motivating factor in the adverse employment decision. 78 McNealy
has not put forth any evidence supporting his claim that the reason for his termination
was, at least in part, racial and that Motiva’s stated reason for his termination is

Grimes v. Texas Dept. of Mental Health & Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996).
The Court requested and thoroughly reviewed a complete copy of McNealy’s deposition, which was
attached to the Court’s May 26, 2017 Order and Reasons regarding the Union Defendants’ Motions for
Summary Judgment. See R. Docs. 341-1, 341-2.
76 See, e.g., Almeida v. Solis, 2015 WL 4638284, at *4 (S.D. Tex. Aug 4, 2015) (collecting cases)).
77 See, e.g., Richardson v. Monitronics Intern. Inc., 464 F.3d 327, 333 (5th Cir. 2005) (citing Rachid v. Jack
in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).
78 See Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).
74
75

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pretextual. The Court finds that McNealy has failed to satisfy his burden of demonstrating
that the actions leading to the termination of his employment were, even in part, racially
motivated. As a result, Motiva’s motion for summary judgment with respect to Plaintiff’s
Section 1981 claims regarding the termination of his employment relationship with
Motiva is granted.
b. Retaliation
In his opposition to Motiva’s motion for summary judgment on his retaliation
claim, McNealy argues only that his being placed on non-occupational disability status
was in retaliation for his complaints regarding alleged racial discrimination and hostile
work environment. 79
Section 1981 retaliation claims are analyzed under the McDonnell-Douglas
framework. 80 As the Fifth Circuit explained in Davis:
To present a prima facie case of retaliation under Title VII or § 1981, a
plaintiff must show that: (1) he engaged in an activity protected by Title VII;
(2) he was subjected to an adverse employment action; and (3) a causal link
exists between the protected activity and the adverse employment action. 81
“If a plaintiff succeeds in making a prima facie case, the burden then shifts to the
defendants to proffer a legitimate rationale for the underlying the [sic] employment
action.” 82 “If the defendant makes this showing, the burden shifts back to the plaintiff to
demonstrate that the employer’s articulated reason for the employment action was a
pretext for retaliation.” 83

R. Doc. 310-1 at 13.
Zatrow v. Houston Auto Imports Greenway Ltd., 789 F.3d 533, 564 (5th Cir. 2015).
81 Davis, 383 F.3d at 319 (citing Banks v. E. Baton Rouge Par. Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003);
Foley v. Univ. of Houston Sys., 324 F.3d 310, 216 (5th Cir. 2003)).
82 Id. (citing Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001)).
83 Id. (citing Aldrup, 274 F.3d at 286).
79

80

14

Motiva argues McNealy is unable to make a prima facie case because he did not
engage in a protected activity. 84 Motiva argues that, although “McNealy reported certain
workplace incidents during meetings with Motiva management, he never complained of
discrimination.” 85 As a result, Motiva argues that “during his employment with Motiva,
McNealy did not oppose any practice made unlawful by Title VII, because that statute
only protects claims of discrimination.” 86 Motiva further argues that, even if McNealy did
complain of discrimination, his belief that he was discriminated against was not
reasonable. 87 The Fifth Circuit has required that, in order to satisfy the first prong of the
prima facie analysis, the plaintiff must demonstrate that he had “at least a ‘reasonable
belief’ that the practices [he] opposed were unlawful.” 88 Motiva argues that because
McNealy cannot identify any objective evidence of discrimination to support his
subjective beliefs, it is clear he did not engage in a protected activity. 89
An employee has engaged in protected activity if he has (1) opposed any practice
made an unlawful employment practice by the statute, or (2) made a charge, testified,
assisted, or participated in any manner in a Title VII investigation, proceeding, or
hearing. 90
McNealy does not argue that he made a charge or participated in a Title VII
Proceeding. As a result, the Court must determine whether he opposed a practice made
an unlawful employment practice by statute. Motiva admits that McNealy mentioned the

R. Doc. 275-1 at 12.
R. Doc. 275-1 at 12 (citing R. Doc. 275-5 at ¶ 24 (Declaration of Mary Snyder); R. Doc. 275-6 at ¶ 10
(Declaration of Brandon Dufrene)) (emphasis in original).
86 Id.
87 Id. at 13.
88 Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996).
89 R. Doc. 275-1 at 13.
90 Alleman v. Louisiana Dept. of Econ. Dev., 698 F. Supp. 2d. 644, 663-64 (M.D. La. 2010) (citing Grimes,
102 F.3d at 140)).
84
85

15

crane box, truck-wrapping and goosing incidents to Brandon Dufrene and David Naquin
on November 10, 2011. 91 Motiva, however, offers the sworn declarations of Brendan
Dufrene and Mary Snyder in which they testify that at the November 10, 2011 meeting
McNealy (1) did not claim that any of these incidents was racially motivated or (2) make
any other complaints of racial discrimination.

92

McNealy argues that before the

November 10, 2011 meeting he complained to the former Union President, Armond
Thomatis, “about the hostile work environment including but not limited to Perry Montz
and George Kestler’s harassment and racial discrimination.” 93 For support, McNealy cites
only to Motiva’s summary of investigative findings, an unsworn document, including
notes from the interview of Perry Montz. 94 The Montz interview notes state only that
Armond Thomatis said McNealy’s co-employees needed to quit teasing him; 95 the
interview notes provide no evidence that McNealy complained to Thomatis or others
about racial discrimination. Neither do the other cited portions of the investigative report
provide evidence that McNealy complained of racial discrimination. 96 McNealy did testify
at his deposition that he complained about the discrimination during the February 29,
2012 meeting with Snyder, Dufrene, Ledet and Casey, however, McNealy provided no
evidence other than his own testimony. 97
Giving McNealy the benefit of the doubt, and assuming he did engage in a
protected activity and is able to meet the two other elements of his prima facie case, the
burden shifts to Motiva to articulate a legitimate, non-discriminatory reason for the

R. Doc. 275-2 at ¶ 19.
R. Docs. 275-6 at 2; 275-5 at 3.
93 R. Doc. 310-2 at 3.
94 R. Doc. 310-3 at 11 (citing R. Doc. 310-4 at 2 ln. 1-11).
95 Id. at 1-2.
96 R. Doc. 310-2 at 6 (citing R. Doc. 310-4 at 3 ln. 31-32, 7 ln. 3-13)
97 See R. Doc. 341-1 at 131.
91

92

16

adverse employment action – his being placed on non-occupational disability leave. “This
burden is one of production, not persuasion; it ‘can involve no credibility assessment.’” 98
“To meet this burden, the employer must show, through admissible evidence, a legally
sufficient reason for not hiring the plaintiff.” 99 The Fifth Circuit has explained that,
although the burden at the second stage of the burden-shifting analysis does not require
much, a Defendant must provide “enough detail to enable [a plaintiff] to attempt to show
pretext.” 100 Motiva has stated that, because McNealy did not return to work after his
FMLA leave, he was placed on disability leave. 101 Motiva sent a letter to McNealy on
February 6, 2014 informing him that he had been placed on non-occupational disability
leave on February 29, 2012 as a result of medical documentation it received from his
doctor. 102 The Court finds that Motiva’s articulated non-discriminatory reason provides
enough detail to enable McNealy to attempt to show pretext.
Because Motiva has articulated a non-discriminatory reason for its decision to
place him on non-occupational disability leave, the burden shifts to McNealy to prove that
Motiva’s stated reason is pretext. As explained above, “To carry that burden, the plaintiff
must produce substantial evidence of pretext.” 103 “Evidence that the proffered reason is
unworthy of credence must be enough to support a reasonable inference that the
proffered reason is false; a mere shadow of doubt is insufficient.” 104 McNealy argues that
Motiva has stated only pretextual, bad faith reasons for its decision to classify his injuries
Reeves, 530 U.S. at 142 (quoting St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509 (1993)). In
Bright v. GB Bioscience Inc., 305 F. App’x 197, 202 (5th Cir. 2008) (citing Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 255 (1981)). The Fifth Circuit has explicitly held that the standard articulated in
Burdine applies to retaliation cases. See Rubinstein v. Administrators of Tulane Educ. Fund, 218 F.3d 392,
402 (5th Cir. 2000).
100 Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004).
101 R. Doc. 275 at 7 (citing R. Doc. 275-5 at ¶ 30.
102 R. Doc. 275-8 at 1.
103 See Auguster, 249 F.3d at 402-03.
104 Id. at 403 (quoting Bauer, 169 F.3d at 967).
98
99

17

as non-occupational. 105 McNealy cites, without explanation or argument, to his own
medical records, his termination notice, and documents related to his social security and
workers’ compensation claims. 106 None of the evidence referenced by the Plaintiff
provides any support for his argument that (1) Motiva’s reason was pretextual and that,
in reality, Motiva retaliated against him when it placed him on non-occupational
disability leave, or (2) that Motiva’s articulated non-discriminatory reason was false.
Because McNealy provided no evidence to show of pretext, he has failed to satisfy his
burden. Motiva’s motion for summary judgment dismissing Plaintiff’s retaliation claims
under Section 1981 is granted.
c. Failure to Promote
Plaintiff alleges a cause of action under Section 1981 for failure to promote. He
claims “white employees similarly situated as he were appointed / promoted to [an] upper
echelon job position on the night shift without allowing him to compete for the
position.” 107 McNealy’s failure-to-promote claim also is analyzed under the McDonnellDouglas framework. 108 A Plaintiff establishes a prima facie case for failure to promote by
demonstrating “(1) he belongs to a protected class; (2) he applied and was qualified for
the job sought; (3) despite his qualifications, he was rejected; and (4) after his rejection,

R. Doc. 310-3 at ¶ 37.
See id. (citing R. Docs. 310-5, 310-6, 310-7, 310-9, 310-13.
107 R. Doc. 260 at ¶ 13.
108 Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 881 (5th Cir. 2003). See also, e.g., Walton v. Vilsack,
2011 WL 3489967, at *5 (E.D. La. Aug. 10, 2011).
105

106

18

the position was filled by someone not in the protected class.” 109 Motiva argues “McNealy
cannot establish the second, third, and fourth elements of his prima facie case.” 110
The second element requires initially that the Plaintiff apply for the position. The
Fifth Circuit has explained that “[f]ailure to apply for a disputed promotion will bar a
‘failure to promote’ claim absent a showing that such an application would have been a
futile gesture.” 111 The Fifth Circuit has explained that the “futile gesture” exception
“requires a showing that the applicant . . . was deterred by a known and consistently
enforced policy of discrimination.” 112 Motiva points out that, “In his deposition, McNealy
identified two job positions that are the subject of this claim: inspector and foreman. It is
undisputed that McNealy did not apply for these alleged promotions.”

113

In his

deposition, McNealy testified that, to his knowledge, none of the other employees who
were promoted actually applied for their positions. 114 Instead, McNealy testified that his
supervisor “just picked who he wanted.” 115 Although McNealy admits he never asked his
supervisor, Brandon Dufrene, to be considered for the positions, 116 McNealy also testified,

See, e.g., Walton, 2011 WL 3489967, at *5 (quoting Walker v. Geithner, 400 F. App’x 914, 916 (5th Cir.
2010)). In its Motion for Summary Judgment, Motiva states that the fourth element of a Plaintiff’s prima
facie case is “(4) that the employer continued to seek or promoted applicants with the plaintiff’s
qualifications.” R. Doc. 275-1 at 15 (quoting Davis v. Dall. Area Rapid Transit, 383 F.3d 309, 317 (5th Cir.
2004)). While other courts have used Motiva’s formulation of the prima facie elements for a failure-topromote case, Motiva’s formulation is more applicable to cases in which the position in question was filled
by an individual in the Plaintiff’s protected class. See Monroe v. Corpus Christi Indep. Sch. Dist., 2006 WL
2092436, at *7 (S.D. Tex. July 26, 2006) (citing Nieto v. L & H Packaging Co., 108 F.3d 621, 624 n.7 (5th
Cir. 2001)). As this is not the case with respect to Plaintiff’s failure-to-promote case, the Court finds that
Motiva’s formulation of the prima facie elements is not appropriate for this case.
110 R. Doc. 275-1 at 15.
111 Irons Aircraft Serv. Int’l, Inc., 392 F. App’x 305, 312 (5th Cir. 2010).
112 McCullough v. Houston Cnty. Texas, 297 F. App’x 282, 287 (5th Cir. 2008) (alteration in original)
(quoting Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 406 (5th Cir. 1999)).
113 R. Doc. 275-1 at 15 (citing R. Doc. 275-3 at 44, ln. 7-17) (Excerpts of Plaintiff’s Deposition). Motiva also
states that it “disputes that these positions constituted ‘promotions’ but does not raise this issue on
summary judgment.” Id. at 15 n.72.
114 See R. Doc. 275-3 at 45.
115 Id. at 45, ln. 14-15.
116 Id. at 45, ln. 10-13.
109

19

“as far as I’m concerned, I didn’t know – nobody else did.” 117 Motiva provides no evidence
contradicting these statements. “The elements of a plaintiff’s prima facie case necessarily
vary depending on the particular facts of each case, and the nature of the claim.” 118 Based
on the facts of this case, the Court finds the requirement that a plaintiff apply for a
disputed promotion is not applicable because any attempt by McNealy to do so would
have been futile. Further, “[o]verall, the burden of establishing a prima facie case is not
onerous.” 119
The second part of the second element requires that the Plaintiff demonstrate that
he was qualified for the position. McNealy provides no evidence he was qualified for the
positions of inspector or foreman. McNealy has not satisfied this portion of the second
element. As a result, he cannot satisfy the third element which requires him to show he
was rejected despite his qualifications. McNealy, however, has ostensibly met the fourth
element through the production of his affidavit in which he states that the inspector and
foreman positions were assigned to white employees. 120 Although the overall burden of
establishing a prima facie case is not onerous, McNealy has failed to establish the second
and third elements of his prima facie case.
Motiva’s motion for summary judgment dismissing Plaintiff’s failure-to-promote
claim is granted as a result of Plaintiff’s failure to establish his prima facie case.

Id. at 45, ln. 13-14.
LeBlanc v. Greater Baton Rouge Port Com’n, 676 F. Supp. 2d 460, 470 (M.D. La. 2009) (citing La Pierre
v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir. 1996); McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 n.13 (1973)).
119 Bright v. GB Bioscience Inc., 305 F. App’x 197, 202 (5th Cir. 2008) (citing Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981)).
120 R. Doc. 310-13 at ¶ 25.
117

118

20

d. Hostile Work Environment
Although McNealy does not specifically address the bases for his hostile work
environment claim, it appears his claim is based on the crane, truck and goosing incidents
as well as the alleged use of racially-discriminatory comments in the workplace. 121
To establish a prima facie case of a hostile work environment, the Fifth Circuit has
explained a plaintiff must show:
(1) [He] belongs to a protected group; (2) [he] was subjected to unwelcomed
harassment; (3) the harassment complained of was based on race; (4) the
harassment complained of affected a term, condition, or privilege of
employment; [and] (5) the employer knew or should have known of the
harassment in question and failed to take prompt remedial action. 122
Motiva argues “Summary judgment is appropriate because McNealy cannot
establish the third and fifth elements of his claim.” 123 The Court will not examine whether
McNealy has established the third element of his prima facie case because he has failed
to establish the fifth element of a prima facie hostile work environment claim which
requires that a plaintiff show his employer failed to take prompt remedial action. 124
Motiva argues it “immediately initiated an investigation when McNealy first reported the
incidents to management on November 10, 2011.” 125 It is uncontested that Dufrene and
Naquin immediately reported Plaintiff’s claims to Mary Snyder in Motiva’s human
resources department following their November 10, 2011 meeting with McNealy. 126 It is
also uncontested that Motiva, over the next two weeks, interviewed Perry Montz, George

See R. Doc. 260 at 7.
Mendoza v. Helicpoter, 548 F. App’x 127, 128-29 (5th Cir. 2013) (alterations in original) (quoting
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)); see also Hudson v. Cleco Corp., 539 F. App’x
615, 619-20 (5th Cir. 2013).
123 R. Doc. 275-1 at 17.
124 R. Doc. 275-1 at 18.
125 Id.
126 R. Doc. 275-2 at ¶ 22; R. Doc. 310-3 at ¶ 22.
121

122

21

Kestler, Matt Loque, Bill LeBouef, Pat Meche and David Mendel regarding Plaintiff’s
allegations. 127 It is also uncontested that following its investigation, Motiva reprimanded
George Kestler and Matt Loque. 128 The Fifth Circuit has explained, “What constitutes
prompt remedial action is a fact-specific inquiry and ‘not every response by an employer
will be sufficient’ to absolve the employer of liability.” 129 “An employer may be liable
despite having taken remedial steps if the plaintiff can establish that the employer’s
response was not reasonably calculated to halt the harassment.” 130 In Carmon v.
Lubrizol, the Fifth Circuit held that an employer took prompt remedial action as a matter
of law after finding that the employer “took the allegations seriously, it conducted prompt
and thorough investigations, and it immediately implemented remedial and disciplinary
measures based on the results of such investigations.” 131 . Motiva has produced the sworn
declarations of Mary Snyder,

132

Brandon Dufrene,

133

and disciplinary documents

regarding Plaintiff’s allegations to document proving that a thorough investigation was
undertaken and disciplinary measures were imposed. 134 McNealy has not put forth any
evidence creating a genuine issue of material fact as to whether Motiva failed to take
prompt remedial action or that Motiva’s actions were not reasonably calculated to halt
the harassment.

R. Doc. 275-2 at ¶ 28; R. Doc. 310-3 at ¶ 28.
R. Doc. 275-2 at ¶ 29; R. Doc. 310-3 at ¶ 29. Although Plaintiff states that he denies this fact, it is clear
that Plaintiff denies only Motiva’s assertion that Kestler and Loque for formally reprimanded. See id.
Plaintiff states that both Kestler and Loque were only given oral reminders. Motiva has attached, however,
copies of letters, signed by Tim Casey, George Kestler and Matt Loque, documenting that they were given
oral reminders for their conduct. See R. Doc. 275-7.
129 Williams-Boldware v. Denton Cty., Tex., 741 F.3d 635, 640 (5th Cir. 2014).
130 Id. (citations omitted).
131 Id. (quoting Carmon v. Lubrizol Corp., 17 F.3d 791, 795 (5th Cir. 1994).
132 R. Doc. 275-5.
133 R. Doc. 275-6,
134 R. Doc. 275-7.
127

128

22

Motiva’s motion for summary judgment dismissing McNealy’s hostile work
environment claims is granted.
II.

Race-Based Conspiracy Claims
In his Fourth Amended Complaint, Plaintiff alleges Motiva:
Conspired by force, intimidation, and threats to deprive McNealy of his
right to redress his job-related grievances, to be protected from harm and
valance [sic] in the work place, to be protected from harassment in the work
place, to protect McNealy from the hostile work environment, to
discriminate against McNealy based on his race, and to terminate McNealy
from his employment. 135

In addition, McNealy clarified at his deposition that his conspiracy claims are based on
the same alleged conduct that violated his rights under Title VII and Section 1981. 136
Motiva argues, “With this needed clarification, McNealy’s conspiracy claims
should be dismissed because Ԥ 1985(3) may not be invoked to redress violations of Title
VII.’”137 Motiva also argues McNealy’s Section 1985 claims should be dismissed because
the only alleged target of this race-based conspiracy is McNealy himself and “[i]n order to
establish a Section 1985 conspiracy, however, McNealy must present evidence that
Motiva discriminated against African-Americans as a class.” 138
In Novotny, the Supreme Court explained, “Section 1985(3) . . . creates no rights.
It is a purely remedial statute, providing a civil cause of action when some otherwise
defined federal right-to equal protection of the laws or equal privileges and immunities
under the laws – is breached by a conspiracy in the manner defined by the section.” 139 As
the court in Stewart v. Commercial Vehicles of South Florida, Inc., a case out of the

R. Doc. 260 at ¶ 72.
R. Doc. 341-1 at 189.
137 R. Doc. 275-1 at 18-19 (quoting Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 378 (1979)).
138 Id. at 19 (emphasis is original) (citing Harris v. Travis, 55 F. App’x 716, at *3 (5th Cir. 2002)).
139 Novotny, 442 U.S. at 376 (emphasis in original) (holding that a “deprivation of a right created by Title
VII cannot be the basis for a cause of action under § 1985(3).”).
135

136

23

Middle District of Florida, explained, “Although holding that a deprivation of a right
created by Title VII cannot form the basis of a claim under § 1985(3), Novotny declined
to decide ‘whether § 1985(3) creates a remedy for statutory rights other than those
fundamental rights derived from the Constitution.’” 140 “Novotny’s reasoning (that
allowing a claim under Section 1985(3) based on a violation of Title VII would impair the
effectiveness of the enforcement and conciliation scheme created by Congress for claims
under Title VII) does not directly apply to a statutory right,” such as the right to make and
enforce contracts under 42 U.S.C. § 1981(a). 141 “Accordingly, whether a deprivation of a
right secured by Section 1981(a) can be the basis of a Section 1985(3) conspiracy remains
unsettled.” 142 “However, courts have plausibly concluded that, because a claim for race
discrimination in employment brought under Title VII cannot form the basis for a §
1985(3) conspiracy claim, the same claim should not survive ‘simply because it is brought
under § 1981.’” 143 “More important, as Jenkins notes, Justice Stevens’s concurrence in
Novotny provides powerful support for precluding a Section 1985(3) claim based on a
deprivation of rights guaranteed by Section 1981(a).” 144 As the Stewart court correctly
notes, “The congressional concern with redressing constitutional violations strongly
suggests that Section 1985(3) was not ‘intended to provide a remedy for the violations of
statutory rights-let alone rights created by statutes that had not yet been enacted.’” 145
Accordingly, the Stewart court held, “the weight of persuasive authority supports the view

2009 WL 2025162, at *2 (M.D. Fla. July 9, 2009), aff’d, 366 F. App’x 41 (11th Cir. 2010).
Id.
142 Id. (collecting cases).
143 Id. (emphasis added) (quoting Jenkins v. Arcade Bldg. Maint., 44 F. Supp. 2d 524, 532-33 (S.D.N.Y.
1999)).
144 Id. (quoting Justice Stevens’s concurrence that “the Congress which enacted both [Sections 1 and 2 of
the Civil Rights Act of 1971] was concerned with providing federal remedies for the deprivations of rights
protected by the Constitution and, in particular, the newly ratified Fourteenth Amendment.”).
145 Id. (quoting Novotny, 442 U.S. at 385 (Stevens, J., concurring)).
140
141

24

that Section 1985(3) provides no remedy for a deprivation of rights protected by Section
1981(a).”146 As McNealy’s conspiracy claims pursuant to Section 1985(3) relate solely to
his employment discrimination claims pursuant to Section 1981, Motiva’s motion for
summary judgment dismissing Plaintiff’s Section 1985 claims is granted.
Plaintiff has also alleged a claim under 42 U.S.C. § 1986. However, because
Plaintiff has failed to allege a proper Section 1985 claim, his Section 1986 must be
dismissed as well. 147 Accordingly, Motiva’s motion for summary judgment dismissing
Plaintiff’s Section 1986 claims is granted.
III.

Section 301 of the Labor Management Relations Act
Plaintiff alleges, pursuant to Section 301 of the Labor Management Relations Act

(“LMRA”), Motiva’s “total departure from the provisions stipulated [under the collective
bargaining agreement] damaged Newton McNealy. The failure to adhere and enforce and
protect his rights and interests under the collective bargaining agreement constitute a
breach of contract, duty and trust in a discriminatory manner.” 148
Motiva first argues that McNealy has not exhausted the grievance and arbitration
procedure set forth in the collective bargaining agreement as is required under Section
301. 149 The Fifth Circuit has clearly explained that “[i]f 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

Id.
See Newberry v. East Texas State Univ., 161 F.3d 276, 281 n.3 (5th Cir. 1998) (“If the § 1985 claim fails,
so must the § 1986 claim.”) See also, Bryan v. City of Madison, Miss., 213 F.3d 267, 276 (5th Cir. 2000)
(“And because a valid § 1985 claim is a prerequisite to a § 1986 claim, that claim is also invalid.”)).
148 R. Doc. 260 at ¶ 114. Plaintiff’s claim appears to be for breach of a collective bargaining agreement
pursuant to 29 U.S.C. § 185(a).
149 R. Doc. 275-1 at 20.
146
147

25

the procedure.” 150 Motiva provides the section of the collective bargaining agreement
providing a grievance and arbitration procedure that is the exclusive and final remedy for
“[a]ll complaints arising out of the application or interpretation of’” the agreement. 151 It
is undisputed that McNealy has not followed the required four-step grievance procedure
and that he did not submit his claim to arbitration. 152 McNealy did not address Motiva’s
argument in his Opposition to Motiva’s motion for summary judgment. 153
The Fifth Circuit has recognized the following three exceptions to the exhaustion
requirement: (1) the union wrongfully refuses to process the employee’s grievance, thus
violating its duty of fair representation; (2) the employer’s conduct amounts a repudiation
of the remedial procedures specified in the contract; (3) exhaustion of contractual
remedies would be futile because the aggrieved employee would have to submit his claim
to a group which is in large part chosen by the employer and union against whom his real
complaint is made. 154 Motiva argues McNealy cannot demonstrate any of the recognized
exceptions apply here. 155 The only exceptions that could possibly apply is the futility
exception. 156 The Fifth Circuit has held, however, that the availability of a neutral
arbitrator refutes a futility argument as a matter of law. 157 Section 10.02 of the Collective

Daigle v. Gulf State Utils. Co., Local Union Number 2286, 794 F.2d 974, 977 (5th Cir. 1986).
R. Doc. 275-10 at 2.
152 R. Doc. 275-2 at ¶ 45 (citing R. Doc. 275-5 at ¶ 36); R. Doc. 310-3 at ¶ 45. Although McNealy states that
he denies this statement of fact, the Plaintiff does not provide any evidentiary support or explanation for
his denial. For a further analysis regarding the Court’s finding that the Plaintiff did not exhaust his remedies
under the collective bargaining agreement, see the Court’s Order and Reasons regarding Defendants United
Steel Workers Union, Local 750 and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers International Union AFL-CIO’s Motions for Summary Judgment. R.
Doc. 341 at 14-17.
153 See R. Doc. 310.
154 See Rabalais v. Dresser Indus., Inc., 566 F.2d 518, 519 (5th Cir. 1978) (citations omitted).
155 R. Doc. 275-1 at 20 n.89.
156 To the extent Plaintiff attempts to argue that the Local Union wrongfully refused to process his grievance,
the Court has already concluded that the Plaintiff did not file a grievance with the Local Union. See R. Doc.
341 at 15.
157 Parham v. Carrier Corp., 9 F.3d 383 (5th Cir. 1993).
150
151

26

Bargaining Agreement clearly provides an arbitration option in the circumstance that the
union member’s complaint is not resolved on an acceptable basis by other means. 158
Because the Plaintiff cannot prove an exception to the exhaustion requirement applies,
Motiva’s motion for summary judgment dismissing Plaintiff’s claims under Section 301
of the Labor Management Relations Act is granted.
IV.

Section 158(a) of the National Labor Relations Act
Plaintiff, in his Fourth Amended Complaint, alleges Motiva “committed an unfair

labor practice” by failing to promote Plaintiff, terminating his employment relationship,
and when it “restrained/coerced McNealy in the exercise of his rights under” the National
Labor Relations Act (“NLRA”). 159 As Motiva correctly identifies, however, “[T]here is no
private cause of action against employers to prevent and remedy unfair labor practices
under the NLRA; enforcement is left, instead to the [National Labor Relations] Board.” 160
Accordingly, Motiva’s motion for summary judgment dismissing Plaintiff’s claims under
the NLRA is granted.
V.

Federal Claims Against Shell Oil Company and Shell Chemical LP
Plaintiff has alleged the same claims against Shell Oil Company (“Shell Oil”) and

Shell Chemical LP (“Shell Chemical”) (collectively the “Shell Defendants”). 161 Shell Oil
and Shell Chemical each filed motions for summary judgment. 162 Plaintiff opposes the
Shell Defendants’ motions. 163 For the reasons set forth above, the Shell Defendants’
motions for summary judgment are granted with respect to Plaintiff’s federal claims

R. Doc. 275-10 at 4.
R. Doc. 260 at ¶¶ 106-108
160 R. Doc 275-1 at 21 (alterations and emphasis in original) (quoting D.R. Horton, Inc. v. N.L.R.B., 737 F.3d
344, 360 n.9 (5th Cir. 2013)).
161 See R. Doc. 260; R. Doc. 245.
162 R. Docs. 278, 279.
163 R. Docs. 309, 312.
158
159

27

pursuant to Sections 1981, 1985(3), 1986, Section 301 of the LMRA, and Section 158(a) of
the NLRA.
VI.

State Law Claims
Plaintiff has also alleged state law tort claims and a state law claims for retaliatory

discharge against Motiva and the Shell Defendants. 164 In its Order with respect to the
various motions to dismiss, the Court explained:
McNealy’s other claims against the Defendants are state law claims over
which the Court possess 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 dismisses 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. 165
As the Court has now ruled on and granted Motiva and the Shell Defendants’
motions for summary judgment with respect to all federal claims raised against these
Defendants, the Court declines to exercise supplemental jurisdiction over the remaining
state law claims pursuant to Title 28, United States Code, Section 1367(c). The remaining
state law claims are dismissed without prejudice pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure.
VII.

Plaintiff’s Allegations of Discovery Violations
In his oppositions to Motiva’s and the Shell Defendants’ Motions for Summary

Judgment, Plaintiff argues these Defendants have “failed to properly answer or

164
165

See R. Doc. 209-1 at 2.
R. Doc. 237 at 38.
28

incompletely and evasively responded to interrogator[ies], refused to produce
discoverable information propounded in request[s] for production of documents, and
committed perjury in responding to request[s] for admissions in contravention.” 166
Plaintiff’s complaints about alleged discovery violations should not be addressed in an
opposition to a motion for summary judgment. If true, the complaints should have been
raised in a timely Federal Rule of Civil Procedure 37 motion to compel. The Plaintiff did
not request additional time for discovery under Federal Rule of Civil Procedure 56(d).
CONCLUSION
For the foregoing reasons;
IT IS ORDERED that Motiva’s and the Shell Defendants’ Motions for Summary
Judgment 167 dismissing all of Plaintiff’s claims with prejudice is GRANTED IN PART
and DENIED IN PART. The Defendants’ Motions for Summary Judgment are granted
with respect to Plaintiff’s federal claims. The Defendants’ motions are denied to the extent
the Defendants request that Plaintiff’s state law claims be dismissed with prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Section 1981, 1985(2) and (3), 1986,
and 141 claims are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s state law claims are DISMISSED
WITHOUT PREJUDICE pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure.
New Orleans, Louisiana, this 5th day of June, 2017.
____________ _______ __________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
166
167

R. Docs. 309-1 at 25-26, 310-1 at 13-14, 312-1 at 20-22.
R. Docs. 275, 278, 279.
29