Kestler, Jr. v. Motiva Enterprises LLC

Filing 56

ORDER granting 17 Motion for Summary Judgment. Signed by Judge Nannette Jolivette Brown. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GEORGE KESTLER, JR.

CIVIL ACTION

VERSUS

NO. 15-1127

MOTIVA ENTERPRISES, LLC

SECTION: “G”(5)

ORDER
In this litigation, Plaintiff George Kestler, Jr. (“Plaintiff”) alleges that his employer,
Defendant Motiva Enterprises LLC (“Motiva”), engaged in age discrimination under Louisiana law
when it terminated him from his position after 23 years of service.1 Pending before the Court is
Motiva’s “Motion for Summary Judgment.”2 Having reviewed the motion, the memoranda in
support, the memorandum in opposition, the record, and the applicable law, the Court will grant the
motion.
I. Background
A.

Factual Background
Kestler alleges that he began working for Shell Oil Company, co-owner of Motiva, on

February 18, 1991.3 He alleges that on February 25, 2014, after 23 consecutive years of service, he
was terminated from his position at the age of 53.4 Kestler alleges that the reason that was given for
his termination was that he was “stealing time” or charging the company for hours he had not

1

Rec. Doc. 1-1.

2

Rec. Doc. 17.

3

Rec. Doc. 1-1 at p. 4.

4

Id.

worked.5 According to Kestler, this reason is false and is a pretext for age discrimination.6 Kestler
alleges that he worked at least sixty hours a week to keep up with workloads and the needs of the
refinery and no specific training was provided to him about how to charge his hours, take lunchtime,
or keep daily records of his work tasks.7 Kestler alleges that a few months after he was terminated,
he was replaced by an employee twenty years younger than him.8
B.

Procedural Background
Kestler filed this lawsuit against Motiva on February 24, 2015 in the 29th Judicial District

Court for the Parish of St. Charles, Louisiana, alleging that Motiva has violated the Louisiana
Employment Discrimination Law, Louisiana Revised Statute 23:312.9 Motiva removed the case to
this Court on April 9, 2015.10
Kestler filed a “Motion to Continue Trial Date” on January 12, 2016.11 The Court denied the
motion on January 21, 2016, finding that Kestler had failed to establish good cause for a
continuance.12 However, the Court ordered that if Kestler was able to show good cause as to why
he failed to depose the two witnesses he mentioned in his motion, the Court would order that their

5

Id.

6

Id.

7

Id. at p. 10.

8

Id. at p. 11.

9

Rec. Doc. 1-1.

10

Rec. Doc. 1.

11

Rec. Doc. 21.

12

Rec. Doc. 31.

2

depositions be taken before trial.13 Kestler did not submit any additional briefing regarding the two
witnesses.
Motiva filed the instant motion on January 5, 2016.14 Kestler filed an opposition on January
26, 2016.15 With leave of Court, Motiva filed a reply on February 3, 2016.16 On February 19, 2016,
the Court noted that Kestler had asserted in his “Statement of Material Facts Which Present a
Genuine Issue” that there is a genuine issue of material fact regarding: “[w]hether Motiva failed to
follow its policy of progressive discipline when it terminated Kestler.”17 The Court observed that
Kestler had made no argument regarding this issue and that Motiva had not addressed this issue in
its reply memorandum.18 Therefore, the Court ordered the parties to submit additional briefing, citing
relevant authority, regarding whether Motiva’s alleged failure to follow its policy of progressive
discipline raises a genuine issue of material fact that the stated reason for Kestler’s termination is
merely a pretext for discrimination.19 Kestler submitted a supplemental memorandum on February
22, 2016.20 Motiva filed its response on February 23, 2016.21

13

Id.

14

Rec. Doc. 17.

15

Rec. Doc. 32.

16

Rec. Doc. 36.

17

Rec. Doc. 41.

18

Id.

19

Id.

20

Rec. Docs. 42, 43.

21

Rec. Doc. 44.

3

Kestler then filed a “Motion for Leave of Court to File Amended Supplemental
Memorandum in Opposition to Motion for Summary Judgment”22 and “Motion for Expedited
Hearing.”23 Motiva filed an opposition to the motion for leave to file on February 24, 2016.24 The
Court granted Kestler’s motion for leave to file its amended supplemental memorandum, but noted
the objections Motiva lodged against the Court’s consideration of exhibits that Kestler had
submitted, and stated that it would address these objections in the Court’s consideration of the
motion for summary judgment.25 On March 1, 2016, with leave of Court, Motiva filed a second
supplemental memorandum in support of its motion for summary judgment.26
II. Parties’ Arguments
A.

Motiva’s Arguments in Support of Summary Judgment
Motiva moves for summary judgment on Kestler’s Louisiana age discrimination claim on

the grounds that “[t]he undisputed evidence demonstrates that Kestler’s employment was terminated
for a legitimate, non-discriminatory reason: management’s belief that Kestler committed payroll
fraud by charging the company for hours that he did not work.”27 Motiva asserts that because Kestler
cannot prove that Motiva’s stated reason for termination was a pretext for age discrimination, the
Court should grant the motion for summary judgment.28

22

Rec. Doc. 45.

23

Rec. Doc. 46.

24

Rec. Doc. 47.

25

Rec. Doc. 49.

26

Rec. Doc. 54.

27

Rec. Doc. 17-1 at p. 1.

28

Id.

4

Motiva asserts that Kestler was an at-will employee and Louisiana courts have consistently
held that employers have the right to dismiss at-will employees “at any time and for any reason
without incurring liability.”29 Motiva contends that Kestler’s age discrimination claim is governed
by the Louisiana Employment Discrimination Law (“LEDL”) which makes it unlawful for an
employer to “[f]ail or refuse to hire, or to discharge, any individual or otherwise discriminate against
any individual with respect to his compensation, or his terms, conditions, or privileges of
employment because of the individual’s age.”30
According to Motiva, Kestler’s age discrimination claim under the LEDL should be analyzed
under the burden-shifting framework established by the United States Supreme Court in McDonnell
Douglas Corp. v. Green.31 In order to survive summary judgment, Motiva asserts that Kestler must
offer evidence sufficient to allow a reasonable jury to conclude that he was discharged because of
his age.32 Motiva contends that, as the United States Supreme Court made clear in Gross v. FBL
Financial Services, Inc., Kestler must prove by a preponderance of the evidence that his age was the
“but-for” cause of the termination.33 Furthermore, Motiva asserts that the Louisiana Supreme Court
has held a plaintiff must show that his age was a “determinative” factor in Motiva’s decision.34
Motiva argues that Kestler cannot establish the fourth element of a prima facie case of

29

Id. at p. 7 (citing Quebedeaux v. Dow Chem. Co., 2001-2297 (La. 6/21/02); 820 So. 2d 542, 545; Read v.
Willwoods Cmty., 2014-1475 (La. 3/14/15); 165 So. 3d 883, 887).
30

Id. at p. 8 (citing La. Rev. Stat. 23:312(A)(1)).

31

Id. (citing 411 U.S. 792 (1973)).

32

Id. at p. 9 (citing LaBove, 802 So. 2d at 574).

33

Id. (citing 557 U.S. 167 (2009)).

34

Id. (citing Montgomery v. C&C Self Enters., 10-705 (La. App. 3 Cir. 3/30/11); 62 So. 3d 279, 282).

5

discrimination because he was replaced by an individual in the protected age group and he has no
evidence that similarly situated individuals outside the protected age group were treated
differently.35 Motiva asserts that even if Kestler could state a prima facie case, his claim fails as a
matter of law because Motiva has articulated a legitimate, non-discriminatory reason for terminating
Kestler’s employment and there is no evidence to suggest that the stated reason was pretextual.36
Motiva asserts that it terminated Kestler because management believed that he falsified time
records and committed payroll fraud.37 Motiva contends that it is well established that falsifying time
records constitutes a legitimate, non-discriminatory reason for discharging an employee.38 According
to Motiva, it is undisputed that Kestler reported 1,534 hours of overtime for 2013, and that Mike
Partipilo (“Partipilo”), Shell’s U.S. Compensation Manager, who oversees payroll for employees
at the Norco, Louisiana Refinery where Kestler worked, contacted Lisa Nix (“Nix”), the Human
Resources Account Manager for maintenance employees at the Norco Refinery, regarding Kestler’s
2013 overtime.39 Motiva asserts that there is no evidence that Partipilo had any idea of how old
Kestler was when he asked Nix to look into Kestler’s time records.40 According to Motiva, Nix
began an investigation into Kestler’s time records that included talking to Kestler’s supervisor, Perry
Montz (“Montz”), about Kestler’s overtime, reviewing Kestler’s overtime reports, meeting with

35

Id. at p. 10.

36

Id.

37

Id.

38

Id. (citing Huda v. Lockheed Martin, No. 07-9090, 2008 WL 191300 (E.D. La. Jan. 22, 2008) (Barbier,
J.); Ebbs v. The Folger Coffee Co., No. 94-3117, 1997 WL 472515 (E.D. La. Aug. 18, 1997) (Lemelle, J.)).
39

Id. at pp. 2–3.

40

Id. at p. 3.

6

Kestler on three occasions to discuss his time records, comparing Kestler’s time report to the Norco
Refinery’s gate logs, and following up with managers for whom Kestler claimed he was performing
overtime work.41
Motiva asserts that when Nix specifically asked Kestler about eight hours of overtime he
claimed on Christmas Day in 2013, Kestler admitted that although he was on call in the event of
emergencies, he did not go to the Norco Refinery or receive any work-related calls on the duty
phone.42 Motiva also contends that Kestler reported three overtime hours on two days in January
2013 when he attended a training with other employees who reported only one hour of overtime and
that, when questioned, Kestler gave conflicting stories about the amount of overtime he worked.43
Motiva asserts that, in the investigation, Nix also found that Kestler routinely reported every minute
of off-site lunches as work time and that, when Kestler was questioned, Nix believed that some of
the time reported was not actually work time.44 According to Motiva, Nix’s investigation revealed
that even if all of the time Kestler spent off the refinery property between the time he entered the
refinery in the morning and last left the refinery in the evening was actual work time, he was
charging the company an average of an extra three quarters of an hour per day.45 Motiva contends
that Nix reported her findings in a summary that she provided to Human Resources Manager Steve
France, along with a recommendation that Kestler be terminated for falsifying his time records and

41

Id. (citing Rec. Doc. 17-4 at pp. 3, 10–11; Rec. Doc. 17-2 at p. 10).

42

Id. at p. 4 (citing Rec. Doc. 17-2 at pp. 6–8, 24–25).

43

Id. (citing Rec. Doc. 17-5 at pp. 4–5; Rec. Doc. 17-4 at pp. 8–9).

44

Id. at p. 5 (citing Rec. Doc. 17-5 at pp. 4–5; Rec. Doc. 17-4 at pp. 15–16).

45

Id. (citing Rec. Doc. 17-4 at pp. 4–5).

7

committing payroll fraud.46 Motiva asserts that the termination recommendation was vetted by
Human Resources and Maintenance and Plant management in Norco, as well as corporate managers
in Houston, and Kestler was terminated for falsifying his time records and committing payroll fraud
on February 25, 2014.47 According to Motiva, Kestler testified that the company told him that he was
being terminated for stealing time and that no one from Motiva ever told him that the decision was
based on his age.48 Furthermore, Motiva asserts that Kestler testified that he had no reason to believe
that Nix and Montz did not genuinely believe that he had stolen time.49
Motiva asserts that even if Kestler could prove that Nix and Montz’s beliefs were mistaken,
his claim would still fail because the LEDL does not “protect older employees from erroneous or
even arbitrary personnel decisions, but only from decisions which are unlawfully motivated.”50 In
support, Motiva cites this Court’s decision in Dees v. United Rentals North America, Inc., where,
Motiva asserts, this Court granted summary judgment, finding that the plaintiff had done nothing
more than state in a conclusory manner that he was discriminated against and dispute the underlying
facts regarding his termination in attempting to prove that his employer made the wrong decision
in firing him.51 Motiva contends that the sole dispositive issue in this case is whether Motiva was

46

Id. (citing Rec. Doc. 17-4).

47

Id. (citing Rec. Doc. 17-3 at pp. 5, 7, 13).

48

Id. (citing Rec. Doc. 17-2 at pp. 13, 18).

49

Id. at p. 6.

50

Id. at p. 11 (quoting Moss v. BMC Software, Inc., 610 F.3d 917, 926 (5th Cir. 2010)).

51

Id. at p. 12 (citing No. 11-547, 2012 WL 1069183 (E.D. La. Mar. 29, 2012) (Brown, J.)).

8

acting on a good-faith belief that Kestler had falsified his time when it decided to terminate his
employment.52
Motiva asserts that Kestler’s subjective belief that he was discriminated against is not
competent evidence of age discrimination.53 Furthermore, Motiva contends that the Fifth Circuit has
affirmed district courts’ granting of summary judgment in cases where the evidence of
discrimination is even stronger than it is here.54 Motiva contends that in Bodenheimer v. PPG
Industries, Inc., the Fifth Circuit affirmed the decision of the district court granting summary
judgment on an age discrimination claim where the plaintiff presented evidence that a regional
manager had made a comment about the employee’s retirement benefits, presented affidavits of two
customers who stated that the quality of service in the office deteriorated after the employee’s
termination, and presented the plaintiff’s own affidavits, in which he alleged that he was better
qualified than the younger employee who replaced him.55
Similarly, in Cervantez v. KMGP Services Co., Inc., Motiva asserts that the Fifth Circuit
affirmed the district court’s granting of summary judgment on an age discrimination claim on the
grounds that the plaintiff had failed to prove that the employer’s proffered reason for termination,
a violation of the employer’s computer usage policy, was pretext for age discrimination.56 Motiva
asserts that in Cervantez, the plaintiff had proffered evidence of inconsistencies in the employer’s
proof that he violated the computer usage policy and a comment made by a member of upper
52

Id. at p. 13 (citing Waggoner v. Garland, 987 F.2d 1160, 1166 (5th Cir. 1993)).

53

Id. at p. 14 (citing Molnar v. Ebasco Constructors, Inc., 986 F.2d 115, 119 (5th Cir 1993)).

54

Id. at p. 15.

55

Id. at p. 14 (citing 5 F.3d 955, 957 (5th Cir. 1993)).

56

Id. at p. 15 (citing 349 F. App’x 4 (5th Cir. 2009)).

9

management four years earlier that the company was expanding and going to start hiring young
people.57 Motiva contends that, unlike in Bodenheimer and Cervantez, here, Kestler has not adduced
evidence of any age-related comments.58 Rather, Motiva argues, Kestler’s case consists solely of
Kestler’s opinion and pleas for sympathy because he was a long-term employee and a hard
worker.59 Motiva asserts that because Kestler has no evidence to prove that Motiva terminated him
because of his age, rather than because it believed that he falsified his time records, Motiva is
entitled to summary judgment dismissing this action with prejudice.60
B.

Kestler’s Arguments in Opposition to the Motion for Summary Judgment
In opposition, Kestler asserts that he was terminated after 23 consecutive years of service

to Shell Oil and Motiva at the age of 53 and replaced by Victor L. Adams who is 39 years old.61
Kestler asserts that he has presented sufficient evidence to demonstrate a prima facie case of
unlawful discrimination by showing that: (1) he was discharged; (2) he was qualified for the
position; (3) at age 53 he was within the protected class; and (4) he was replaced by someone outside
of the protected class.62 Furthermore, Kestler asserts that the only other employee who was fired for
payroll fraud was David Landeche, who was fired when he was 54 years old.63 Kestler also contends

57

Id. (citing 349 F. App’x at 4).

58

Id.

59

Id.

60

Id. at p. 16.

61

Rec. Doc. 32 at p. 1.

62

Id. at p. 11.

63

Id. (citing Rec. Docs. 32-11, 32-12 at p. 1).

10

that Motiva hired all young heavy equipment operators and that the mechanical inspector jobs went
to younger people as well.64
Kestler also contends that he has come forth with sufficient evidence that Motiva’s alleged
non-discriminatory reason for termination is a pretext for age discrimination.65 Kestler asserts that
he has always worked a lot of overtime and when his previous supervisors were questioned about
his overtime, the supervisors told Human Resources that Kestler was needed and that the facility
could not function without him.66 Kestler asserts that because his skill sets were broad and covered
many disciplines throughout the refinery, it makes sense that he had more overtime because he could
fill in for several positions.67 Kestler contends that employees often called him for assistance after
he had left the facility.68 He also asserts that the Court can assume that because Partipilo is a Human
Resources employee, he would have access to Kestler’s demographic information and “it would be
foolish to think that Mr. Partiplo [sic] was not aware that Kestler was eligible for full pension
retirement in less than 2 years.”69 In fact, Kestler states in his declaration that Partipilo informed him
that he was eligible for full retirement pension in less than two years.70 Kestler also asserts that
Motiva “attempted to terminate [him] for several issues before subsequently and ultimately agreeing

64

Id.

65

Id. at p. 12.

66

Id.

67

Id.

68

Id.

69

Id. at p. 13.

70

Rec. Doc. 32-2 at p. 6.

11

on the pay discrepancy.”71 Kestler asserts that the alleged nondiscriminatory reason for Kestler’s
termination is a pretext for age discrimination because the payroll system at Motiva is not solely
based on the number of hours employees spend on site and his self-reported work hours were
accurate.72 Kestler contends that Montz has testified that he did not approve Kestler’s overtime
despite the fact that under the company policy a leader or supervisor must approve overtime.73
Therefore, Kestler asserts that Montz is at fault, not Kestler.74
Kestler asserts that the United States Supreme Court case cited by Motiva for the proposition
that a plaintiff bringing a disparate treatment claim must prove by a preponderance of evidence that
age was a “but-for” cause of the termination, Gross v. FBL Financial Services, Inc., is
distinguishable because that case was under the Age Discrimination in Employment Act (“ADEA”),
not Louisiana law, and there, the case was not at the summary judgment stage but was being
reviewed after a jury trial.75 Kestler asserts that several circuits have held that the requirement that
the plaintiff show that age was the “but-for” cause of termination is only applicable at the trial stage
whereas the McDonnell Douglas burden-shifting framework applies at the summary judgment
stage.76 Kestler contends that, in order to defeat a motion for summary judgment, the Court must

71

Id. at p. 7.

72

Rec. Doc. 32 at p. 13.

73

Id. at pp. 13–14.

74

Id. at p. 14.

75

Id. at p. 9 (citing 557 U.S. 167 (2009)).

76

Id. (citing Shelley v. Green, 666 F.3d 599, 607–08 (9th Cir. 2012); Leibowitz v. Cornell Univ., 584 F.3d
487, 498 (2d Cir. 2009); Velez v. Thermo King de P.R., Inc., 585 F.3d 441, 446–47 (1st Cir. 2009); Connolly v. Pepsi
Bottling Grp., LLC, 347 F. App’x 757, 759–61 (3d Cir. 2009)).

12

decide whether Kestler has produced facts which, if believed, would lead a reasonable jury to
conclude that it was more likely than not that Motiva terminated Kestler because of his age.77
C.

Motiva’s Arguments in Further Support of Summary Judgment
Motiva asserts that Kestler has failed to create a genuine issue of material fact to defeat

summary judgment.78 First, Motiva argues that Kestler’s objections in his statement of material facts
violate the Local Rules and the Court’s Scheduling Order which requires Kestler to provide “specific
references to the record evidence” that contradict Motiva’s statements of undisputed fact.79 Motiva
asserts that because Kestler has failed to do so, all of the facts listed in Motiva’s Statement of
Undisputed Facts should be deemed admitted.80
Next, Motiva asserts that Kestler’s declaration is not proper summary judgment evidence
because it is “riddled with statements that are speculative, hearsay, subjective opinion, or otherwise
not based on personal knowledge.”81 Motiva contends that Federal Rule of Civil Procedure 56(c)(4)
provides that a declaration used to support or oppose a motion for summary judgment must be made
on personal knowledge, set out facts that would be admissible in evidence and show that the
declarant is competent to testify on the matters stated.82 However, according to Motiva, Kestler’s
declaration purports to offer testimony about what other witnesses know or understand.83 Motiva

77

Id. at p. 10 (citing Rhodes v. Guiberson Oil Tools, 74 F.3d 989, 994 (5th Cir. 1996) (en banc)).

78

Rec. Doc. 36 at p. 1.

79

Id. at p. 3.

80

Id. at p. 4.

81

Id.

82

Id.

83

Id.

13

asserts that Kestler’s declaration does not set forth any facts establishing that he has personal
knowledge about the subjective mindset of those individuals and therefore the declaration should
be entitled to no weight and should be disregarded by the Court.84 Furthermore, Motiva argues that
Kestler’s declaration contains inadmissible hearsay which is not proper summary judgment
evidence.85 Motiva asserts that because Kestler has not made any attempt to show an applicable
exception to the hearsay rule, the testimony regarding what past supervisors and other employees
stated should be disregarded.86
In addition, Motiva contends that Kestler’s declaration also contains statements that are
“either misleading, inconsistent with his own deposition testimony, or both.”87 Motiva asserts that
the Supreme Court has recognized that district courts may refuse to consider declaration testimony
that is blatantly inconsistent with the summary judgment record and, based upon the numerous
inconsistencies between Kestler’s declaration and the record, the Court should do so here.88
Motiva also argues that Kestler’s claim cannot survive a motion for summary judgment
based upon his “bogus allegations” regarding U.S. Compensation Manager Mike Partipilo.89 Motiva
also contends that Kestler’s allegations about Partipilo are irrelevant because an allegedly agerelated comment is evidence of discriminatory intent only if it is attributable to a decision-maker and
the undisputed record proves that Partipilo was not involved in the decision to terminate Kestler’s

84

Id. at p. 5 (citing Williamson v. U.S. Dep’t of Agric., 815 F.2d 368, 383 (5th Cir. 1987)).

85

Id. (citing Cormier v. Pennzoil Explor. & Prod. Co., 969 F.2d 1559, 1561 (5 Cir. 1992)).

86

Id. at p. 6.

87

Id.

88

Id. at pp. 7–8 (citing Scott v. Harris, 550 U.S. 372, 379 (2007)).

89

Id. at p. 8.

14

employment.90 In addition, Motiva asserts that Kestler’s conclusory allegations about Partipilo
“inquiring” about him in the past and contacting him about his retirement benefits do not comply
with Federal Rule of Civil Procedure 56 which requires that affidavits opposing summary judgment
be specific.91 Motiva also contends that even assuming Partipilo did notify Kestler regarding his
retirement eligibility, this does not constitute evidence of age discrimination under Fifth Circuit
precedent finding that evidence regarding “high salary” and “fast-approaching eligibility for
retirement benefits” is insufficient to establish a claim of age discrimination because the ADEA
prohibits discrimination on the basis of age, not salary or seniority.92
Motiva also argues that the organizational chart attached to Kestler’s declaration is
insufficient to defeat Motiva’s motion for summary judgment.93 Motiva contends that the document
is hearsay and Kestler should not be permitted to rely on it because he never produced it in discovery
and did not include it on his exhibit list.94 Motiva asserts that the Court should strike this exhibit
from the record and disregard any arguments related to the chart for purposes of its summary
judgment ruling as a result.95 Motiva also contends that the chart should be disregarded because it
is fundamentally inconsistent with Kestler’s prior deposition testimony in which he stated that he

90

Id. (citing Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41–42 (5th Cir. 1996)).

91

Id. at p. 9 (citing Richardson v. Oldham, 12 F.3d 1373, 1378 (5th Cir. 1994)).

92

Id. (citing Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152 (5th Cir. 1995)).

93

Id. at p. 10.

94

Id.

95

Id. (citing Patterson v. Houston Indep. Sch. Dist., 570 F. App’x 367, 370 (5th Cir. 2014)).

15

did not have any idea of instances where other people were discriminated against on the basis of
age.96
Finally, Motiva contends that even assuming that the Court were to consider Kestler’s chart,
it would not allow him to survive summary judgment because it is irrelevant.97 According to Motiva,
evidence concerning the experiences of other employees is relevant only if the other individuals are
similarly situated to the plaintiff in that they have held the same job or responsibilities, shared the
same supervisor or had their employment status determined by the same person, and have essentially
comparable violation histories.98 Motiva asserts that the misconduct by the plaintiff that resulted in
the adverse employment action must have been identical to that of the other employees as well.99
Motiva contends that Kestler has not cited a shred of evidence to prove that the individuals listed
on the chart are similarly situated.100 Motiva also points to Kestler’s deposition testimony where he
was asked if he knew of any person in his position that the company had determined was stealing
time, to which he responded “No.”101

96

Id. at p. 11 (citing S.W.S. Erectors Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996)).

97

Id. at p. 12.

98

Id. (citing Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 302 (5th Cir. 2000); Turner v. Kan. City S.
Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012)).
99

Id. at pp. 12–13 (citing Turner, 675 F.3d at 893).

100

Id. at p. 13.

101

Id. (citing Rec. Doc. 36 at p. 36).

16

D.

Kestler’s Supplemental Memorandum in Opposition to Summary Judgment
On February 19, 2016, the Court noted that Kestler had asserted in his “Statement of Material

Facts Which Present a Genuine Issue” that there is a genuine issue of material fact regarding:
“[w]hether Motiva failed to follow its policy of progressive discipline when it terminated Kestler.”102
The Court observed that Kestler had made no argument regarding this issue and that Motiva had not
addressed this issue in its reply memorandum.103 Therefore, the Court ordered the parties to submit
additional briefing, citing relevant authority, regarding whether Motiva’s alleged failure to follow
its policy of progressive discipline raises a genuine issue of material fact that the stated reason for
Kestler’s termination is merely a pretext for discrimination.104
In his supplemental memorandum, Kestler asserts that at all times relevant to this lawsuit,
Motiva had a progressive discipline policy.105 Kestler points to the deposition testimony of Montz
who describes the progressive discipline policy as follows: “So there’s coaching and counseling and
then there’s formal discipline, which is an oral reminder, a written reminder, a DML – which is a
decision-making leave – and termination.”106 Montz also testified that he had used the progressive
discipline in the past.107 Kestler also asserts that he had an expectation of a progressive discipline
policy because it was invoked on a disciplinary action taken against him in 2011.108 Kestler cites to

102

Rec. Doc. 41.

103

Id.

104

Id.

105

Rec. Doc. 42 at p. 1.

106

Id. at pp. 1–2 (citing Rec. Doc. 32-6 at p. 4).

107

Rec. Doc. 32-6 at p. 4.

108

Rec. Doc. 42 at p. 2.

17

an email from Matthew Kline, Human Resource Account Manager, that recommends that
management move to the first step in the progressive discipline process for an infraction that
involved Kestler in 2011.109 Kestler also points to an oral reminder that he received.110 Kestler asserts
that he was fired after 23 years without warning and without the company using its progressive
discipline policy.111
Kestler asserts that the Fifth Circuit has recognized that failure to follow a progressive
disciplinary system may give rise to inferences of pretext.112 Kestler cites three Fifth Circuit cases
in support.113 Kestler asserts that in Goudeau v. Nat’l Oilwell Varco, L.P., the Fifth Circuit stated
what “when an employer opts to have a disciplinary system that involves warnings, failure to follow
that system may give rise to inferences of pretext.”114 Kestler contends that in Machinchick v. PB
Power, Inc., the Fifth Circuit stated that even the non-mandatory nature of a progressive discipline
plan “did not eliminate the inference of pretext raised by [the] failure to follow an internal company
policy specifically stating that it should be ‘followed in most circumstances.’”115 Finally, Kestler
cites Keller v. Coastal Bend College, in which the Court stated “although this court has held that an
employer’s failure to follow its own progressive discipline policy can be evidence of pretext, Keller

109

Rec. Doc. 43 at p. 1.

110

Id.

111

Id.

112

Rec. Doc. 42 at p. 2.

113

Id. at p. 3.

114

Id. (quoting 793 F.3d 470 (5th Cir. 2015)).

115

Id. (quoting 398 F.3d 345 (5th Cir. 2005)).

18

has failed to put forth any evidence establishing that the College used such a policy.”116 Kestler
asserts that, contrary to the facts in Keller, here, evidence has been submitted that Motiva used its
progressive discipline policy.117
Kestler also asserts that he has submitted other evidence of pretext, including evidence that
he did not falsify his time records and was never given training on how to calculate his time.118
Kestler also asserts that he pled for the company to use its progressive discipline system rather than
terminating him.119
E.

Motiva’s Supplemental Memorandum in Support of Summary Judgment
Motiva contends that Kestler’s allegation that Motiva failed to follow its progressive

discipline policy is insufficient to create a material issue of fact for two reasons: (1) Motiva did not
deviate from its policies when it terminated Kestler’s employment and (2) there is no evidence that
Motiva applied its progressive discipline policy differently to younger employees who falsified their
time entries.120 First, Motiva asserts that the Motiva Code of Conduct requires all employees to
provide complete and accurate information in any business record they prepare, including their
employee time records.121 Motiva contends that the Code of Conduct further states that any person
who violates the company’s ethical standards, policies, or the law is subject to disciplinary action

116

Id. (quoting No. 15-40710, 2015 WL 6445751 (5th Cir. 2015)).

117

Id.

118

Id.

119

Id.

120

Rec. Doc. 44.

121

Id. at p. 1 (citing Rec. Doc. 32-10 at p. 21).

19

up to and including termination.122 Citing the deposition testimony of Nix, Motiva contends that
although it does maintain a progressive discipline policy, it is used primarily for disciplinary actions
against hourly employees, opposed to staff employees like Kestler.123 Motiva also asserts that when
an employee has committed an act of theft or other egregious violation of company policy, the
company’s normal policy is to bypass the steps of formal discipline and proceed immediately to
termination.124 In support, Motiva cites Montz’s deposition testimony where he stated that conduct
like stealing would result in automatic termination.125
Motiva also submits the deposition testimony of Kestler, who testified that David Landeche
was also terminated for charging time that he wasn’t working.126 Citing the investigation summary
regarding David Landeche, Motiva contends that Landeche was also terminated without any
progressive discipline.127
Motiva asserts that the decision to terminate Kestler’s employment was completely
consistent with its own policies and the language of the Code of Conduct.128 Motiva submits the
testimony of Nix, Human Resources Account Manager for the maintenance employees at the Norco
Refinery, who testified that the company always reserves the right to skip steps in its progressive
discipline policy and the decision was made in Kestler’s case that his conduct was egregious enough

122

Id. at p. 2 (citing Rec. Doc. 32-10 at p. 9).

123

Id. (citing Rec. Doc. 44-1 at p. 6).

124

Id.

125

Id. (citing Rec. Doc. 44-2 at p. 7).

126

Id. at pp. 2–3 (citing Rec. Doc. 44-3 at p. 6).

127

Id. at p. 3 (citing Rec. Doc. 44-4 at p. 2).

128

Id.

20

to warrant termination.129 In support of its assertion that this evidence demonstrates that Kestler
cannot prove that the reason given for his termination was pretextual, Motiva cites a Fifth Circuit
case, Taylor v. Peerless Industries, where the court held that an employer’s failure to follow its
progressive discipline policy was insufficient to establish pretext because the policy was nonmandatory and the employee had no evidence that the employer had applied the policy differently
in other cases.130 Motiva also cites a Northern District of Texas case, Dennison v. AT&T Corp., in
which it asserts the court found that the code of conduct clearly stated that policy violations could
result in dismissal and stated that it would not second-guess AT&T’s business decision to discharge
the plaintiff for her infractions.131
Second, Motiva asserts that even assuming Kestler could show that Motiva failed to follow
its progressive discipline policy, this is insufficient to show pretext because there is no evidence that
Motiva applied its progressive discipline policy differently to younger employees who falsified their
time records.132 Motiva contends that, in the Fifth Circuit, an employer’s failure to follow a
progressive discipline policy is only probative of discriminatory intent when the plaintiff has proof
that the policy was applied differently to others outside the protected class.133 In support, Motiva
cites Hamilton v. AVPM Corp., a Fifth Circuit case where the court stated, “Although an employer’s
failure to follow its own policies may be probative of discriminatory intent, we require discharged
employees in discrimination cases to show, in addition, that they were treated differently from non129

Id. (citing Rec. Doc. 44-1 at p. 8).

130

Id. (citing 322 F. App’x 355, 367 (5th Cir. 2009)).

131

Id. (citing No. CA 3:97-CV-1565-R, 1998 WL 873032, at *16–18 (N.D. Tex. Dec. 3, 1998)).

132

Id. at p. 4.

133

Id.

21

minority employees.”134 Motiva also cites another Fifth Circuit case, Okpala v. City of Houston, in
which the court stated “Even had Okpala shown that the City failed to follow its own procedures in
the layoff, he must also show that the procedure was adhered to differently in cases involving
employees who were not members of his protected group.”135 Finally, Motiva cites a Western
District of Louisiana case, Hedgemon v. Madison Parish School Board, where the court found that
“Even if plaintiff were to show that the MPSB failed to follow its RIF Policy, this is not enough to
establish discriminatory intent in the case of a discharged employee. Rather, she must also show that
she was treated differently from other employees outside of her protected class (or those who were
significantly younger than her).”136 Motiva asserts that evidence that Motiva applied its progressive
discipline policy differently to younger employees is required because “[t]he ADEA cannot protect
older employees from erroneous or even arbitrary personnel decisions, but only from decisions
which are unlawfully motivated.”137 Motiva contends that there is no evidence that Motiva treated
younger employees who falsified their time records any differently than it treated Kestler.138
F.

Kestler’s Amended Supplemental Memorandum In Opposition to Summary Judgment
In his amended supplemental memorandum, Kestler asserts that Wayne Fernandez

(“Fernandez”), the Central Shop Mechanical Team Leader, also testified that Motiva has a
progressive discipline policy.139 Kestler asserts that Fernandez would warn his subordinates that they

134

Id. (quoting 476 F.3d 337, 346 (5th Cir. 2007)).

135

Id. (citing 397 F. App’x 50, 53 (5th Cir. 2010)).

136

Id. (citing No. 14-0817, 2015 WL 4094701 (W.D. La. July 7, 2015)).

137

Id. at p. 5 (quoting Moss v. BMC Software, Inc., 610 F.3d 917, 926 (5th Cir. 2010)).

138

Id.

139

Rec. Doc. 50 at p. 4.

22

were “stepping on the line” before taking any type of disciplinary action and Fernandez testified that
he would expect to receive a warning from a manager if he had done something wrong.140
Kestler also contends that Motiva is estopped from claiming that Kestler has no evidence of
younger employees who the company claims falsified time records and were given warnings instead
of termination because, when Kestler requested this evidence in an interrogatory, Motiva responded
that the information sought was confidential, irrelevant, and not reasonably calculated to lead to the
discovery of admissible evidence.141 Kestler asserts that he filed a motion to compel, but that motion
was denied by the magistrate judge.142 Kestler contends, however, that in response to the
interrogatory, Motiva stated that the only employee at the Norco Refinery who was counseled or
reprimanded for committing payroll fraud is David Landeche, who was 53 years old.143
Kestler also submits a document that he asserts is a worksheet that is part of the internal
investigation by Motiva that calculates the amount of overtime that Kestler submitted in January
2013.144 Kestler asserts that on top of this worksheet the words “George Kestler - retirementeligible*” are written.145 Kestler asserts that this is evidence of pretext because the fact that he is
retirement eligible relates to his age and the fact that he is retirement eligible should be irrelevant
to the calculation of Kestler’s overtime.146

140

Id. (citing Rec. Doc. 32-5 at p. 8).

141

Id. at p. 5 (citing Rec. Doc. 32-11 at pp. 9–10).

142

Id.

143

Id. (citing Rec. Doc. 32-11 at pp. 9–10).

144

Id. at p. 4 (citing Rec. Doc. 44 at p. 3).

145

Id. (citing Rec. Doc. 44 at p. 3).

146

Id.

23

G.

Motiva’s Second Supplemental Memorandum in Support of Summary Judgment
Motiva contends that in order to survive a motion for summary judgment, Kestler has the

burden of offering evidence sufficient to allow a reasonable jury to make the following findings: “(1)
that Motiva’s stated reason for terminating his employment was not the actual reason; and (2) that
the true reason for its decision was because of his age.”147 In addition, Motiva asserts that the
causation standard Kestler must satisfy is “more demanding” than the standard that applies in other
kinds of employment discrimination cases because Kestler must prove that age was the “but for”
cause of the decision to terminate rather than simply a “motivating factor.”148 According to Motiva,
in order to survive a motion for summary judgment, Kestler must demonstrate that his age actually
played a role in Motiva’s decision-making process and that it had a “determinative influence on the
outcome.”149
Motiva asserts that Kestler’s arguments regarding its progressive discipline policy do not
create a genuine issue of material fact regarding whether Motiva’s stated reasons are a pretext for
age discrimination for two reasons: (1) a failure to follow a progressive discipline policy is not
probative of pretext if the employer had discretion to deviate from the policy; and (2) a failure to
follow an internal policy is not probative of pretext without evidence that other employees were
treated differently.150 In support of its contention that Kestler cannot show pretext in this case based
upon a failure to follow a progressive discipline policy, Motiva cites a Western District of Texas

147

Rec. Doc. 54 at p. 1 (citing Kass v. Albemarle Corp., 220 F.3d 584 (5th Cir. 2000); Montgomery v. C&C
Self Enters., 10-705 (La. App. 3 Cir. 3/30/11); 62 So. 3d 279, 287)).
148

Id. at p. 2 (citing Leal v. McHugh, 731 F.3d 405, 411 (5th Cir. 2013); Montgomery, 62 So. 3d at 287).

149

Id. (quoting Montgomery, 62 So. 3d at 282).

150

Id. at pp. 2–4.

24

case, Saldivar v. Austin Independent School District, where the court stated that “if the employer has
discretion to deviate from the [progressive discipline] policy, then a failure to follow the policy does
not show pretext.”151 Motiva also cites Taylor v. Peerless Industries, Inc., a Fifth Circuit case in
which Motiva contends that the court found that the plaintiff had failed to demonstrate pretext
because the plaintiff failed to offer evidence showing that the employer “generally followed the four
steps outlined in its disciplinary policy, or that the policy was applied differently to similarly situated
employees.”152 Motiva asserts that the evidence in this case shows that Motiva does not follow
progressive discipline steps when an employee is believed to have committed an egregious violation
of the company’s core policies involving honesty and integrity as Kestler did.153
Motiva also asserts that a failure to follow an internal policy is not probative of pretext
without evidence that other employees were treated differently.154 Motiva contends that courts have
recognized that an employee’s termination “may well be unfair or even unlawful yet not be evidence
of age bias under the ADEA.”155 In support, Motiva cites a Fifth Circuit case Turner v. Baylor
Richardson Medical Center156 and a Northern District of Texas case Hall v. Smurfit-Stone Container
Enterprises.157 Motiva also cites Moore v. Eli Lilly & Co., a Fifth Circuit case in which the court

151

Id. at p. 3 (citing No. A-14-CA-00117-SS, 2015 WL 5655699, at *7 (W.D. Tex. Sept. 24, 2015)).

152

Id. (citing 22 F. App’x 355, 367 (5th Cir. 2009)).

153

Id.

154

Id. at p. 4 (citing EEOC v. Texas Instruments Inc., 100 F.3d 1173, 1182 (5th Cir. 1996); Grubb v. Sw.
Airlines, 296 F. App’x 383, 390 (5th Cir. 2008); White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 246 (6 Cir.
2005); Vaughan v. MetraHealth Cos., 145 F.3d 197, 203 (4th Cir. 1998)).
155

Id. (citing Moore v. Eli Lilly & Co., 990 F.2d 812, 819 (5th Cir. 1993)).

156

Id. at pp. 4–5 (citing 476 F.3d 337, 346 (5th Cir. 2007)).

157

Id. at p. 5 (citing No. 3:07-CV-0501-G, 2008 WL 3823252 (N.D. Tex. Aug. 14, 2008)).

25

stated that the ADEA was not intended to provide a legal remedy “simply because the terminated
worker is over the age of forty” and unless there is evidence showing “nexus between the
employment actions taken by the employer and the employer’s age,” a plaintiff cannot provide
pretext based upon the employer’s failure to comply with internal disciplinary policies.158 Motiva
asserts that Kestler has put forward no evidence that a younger employee who falsified time records
was given the benefit of a disciplinary warning while older employees were fired, or any other type
of evidence establishing the necessary “nexus” between Motiva’s decision and his age.159 Motiva
also cites Wyvill v. United Companies Life Insurance Co., where, Motiva asserts, the court held that
the plaintiffs had failed to prove pretext as a matter of law because they offered no proof of a
connection between the employer’s failure to follow its disciplinary policy and the plaintiffs’ ages,
such as proof that the employer “complied with standard disciplinary procedures when filing reports
on younger workers but flouted them when it came to [the plaintiffs].”160
Motiva asserts that the only other employee who falsified his time, David Landeche, received
the exact same discipline as Kestler, which was termination without the use of the progressive
discipline policy.161 Motiva contends that, by asking the Court to reverse his termination, Kestler is
effectively asking to be treated more favorably than Landeche, which is beyond what the law
requires.162

158

Id. (citing 990 F.2d 812, 819 (5th Cir. 1993)).

159

Id.

160

Id. at pp. 5–6 (citing 212 F.3d 296, 305–06 (5th Cir. 2000)).

161

Id. at p. 6.

162

Id. (citing Williams v. General Motors Corp., 656 F.2d 120, 129 (5th Cir. 1981) (“The ADEA mandates
that an employer reach employment decisions without regard to age, but it does not place an affirmative duty upon
an employer to accord special treatment to members of the protected age group.”).

26

Motiva also asserts that the cases that Kestler has cited are easily distinguishable from the
facts in this case.163 Motiva contends that in Goudeau v. National Oilwell Varco, the Fifth Circuit
found that plaintiff had offered evidence not only that the employer had failed to follow its
progressive discipline policy, but had actually manufactured steps in the policy by issuing written
warnings to paper his file after it decided to fire the plaintiff.164 Furthermore, Motiva asserts that the
court in Goudeau found that the plaintiff had introduced evidence that the plaintiff’s supervisor had
made numerous ageist remarks and told the plaintiff that he planned to fire two of the plaintiff’s
older coworkers, one of whom was, in fact, terminated.165 Motiva contends that here, Kestler has
presented no evidence of ageist remarks.166
Motiva contends that in Keller v. Coastal Bend College, the Fifth Circuit focused upon the
plaintiff’s failure to offer evidence regarding the company’s use of its policy.167 Motiva asserts that
in this case, Kestler asked Motiva witnesses about the progressive discipline policy and they testified
that it is not used for egregious violations of the company’s Code of Conduct like Kestler’s.168
Motiva also asserts that Machinchick v. PB Power, Inc. is distinguishable because the employer’s
policy in that case contained specific language providing that it should be “followed in most
circumstances.”169 In addition, Motiva asserts that the case pre-dates the Supreme Court’s holding

163

Id.

164

Id. at pp. 6–7 (citing 793 F.3d 470, 477 (5th Cir. 2015)).

165

Id. at p. 7 (citing Goudeaux, 793 F.3d at 475–77).

166

Id.

167

Id. (citing No. 15-40710, 2015 WL 6445751 (5th Cir. 2015)).

168

Id.

169

Id. (citing 398 F.3d 345, 355 & n.29 (5th Cir. 2005)).

27

in Gross v. FBL Financial Services, Inc. and therefore the plaintiff in Machinchick was only
required to show that age was a “motivating factor” in the adverse employment decision, whereas
now Kestler is required to prove that age was the “but for” cause of his termination.170
Motiva also asserts that the question of whether Kestler’s conduct constituted payroll fraud,
theft, or something else, is immaterial.171 Motiva contends that committing payroll fraud by
falsifying time records is a form of theft because a company is paying the employee for work that
he did not actually perform.172 According to Motiva, a good faith belief that the employee’s conduct
violated a company policy is enough to constitute a legitimate, non-discriminatory reason for the
adverse employment action.173
In response to Kestler’s attachment of the worksheet with the handwritten note, Motiva
asserts that Kestler did not list this document on his exhibit list or on the list of his exhibits in the
Pre-Trial Order, therefore, this document is not properly before the Court.174 In addition, Motiva
asserts that Kestler has not tried to identify the author of the notation “George Kestler—retirement
eligible*,” nor did he ask any witness about it, therefore, the notation, as presented, is not competent
evidence that can defeat summary judgment.175 Furthermore, Motiva contends that it is well

170

Id. at p. 8 (citing 557 U.S. 167, 177 (2009)).

171

Id.

172

Id. (citing Eldrige-Hall v. City of Houston, No. H-04-913, 2005 WL 1155102, at *5 (S.D. Tex. May 16,

2005)).
173

Id. at p. 9 (citing Watts v. L-3 Comm’ns Corp., No. 3:12-CV-4248-G, 2013 WL 3789868, at *6 (N.D.
Tex. July 22, 2013)).
174

Id.

175

Id.

28

established that “mere references to retirement are not evidence of age discrimination.”176 Motiva
contends that no reasonable jury could conclude based on this handwritten notation that age was the
“but for” cause of Kestler’s termination.177
III. Law and Analysis
A.

Legal Standard on a Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits show

that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”178 When assessing whether a dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”179 All reasonable inferences are drawn in favor of the nonmoving party, but
“unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of
law’ are insufficient to either support or defeat a motion for summary judgment.”180 If the record,
as a whole, “could not lead a rational trier of fact to find for the non-moving party,” then no genuine
issue of fact exists and the moving party is entitled to judgment as a matter of law.181 The nonmoving
party may not rest upon the pleadings, but must identify specific facts in the record and articulate
the precise manner in which that evidence establishes a genuine issue for trial.182

176

Id. (citing Egan v. Hosp. Serv. Dist. No. One of Tangipahoa Par., No. 12-1352, 2013 WL 3270444, at *5
(E.D. La. June 26, 2013)).
177

Id. at p. 10.

178

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
179

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

180

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

181

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).

182

See, e.g., Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

29

The party seeking summary judgment always bears the initial responsibility of informing the
Court of the basis for its motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact.183 Thus, the nonmoving party should
“identify specific evidence in the record, and articulate” precisely how that evidence supports his
claims.184 To withstand a motion for summary judgment, a plaintiff must show that there is a genuine
issue for trial by presenting evidence of specific facts.185 The nonmovant’s burden of demonstrating
a genuine issue of material fact is not satisfied merely by creating “some metaphysical doubt as to
the material facts,” “by conclusory allegations,” by “unsubstantiated assertions,” or “by only a
scintilla of evidence.”186 Rather, a factual dispute precludes a grant of summary judgment only if the
evidence is sufficient to permit a reasonable trier of fact to find for the nonmoving party. Hearsay
evidence and unsworn documents that cannot be presented in a form that would be admissible in
evidence at trial do not qualify as competent opposing evidence.187
B.

McDonnell Douglas Burden-Shifting Framework
“Because Louisiana’s prohibition against age discrimination is identical to the federal statute

prohibiting age discrimination, Louisiana courts have traditionally looked to federal case law for
guidance.”188 The burden-shifting framework established in McDonnell Douglas Corp. v. Green

183

Celotex, 477 U.S. at 323.

184

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994).

185

Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty, 477 U.S. 242,
248–49 (1996)).
186

Little, 37 F.3d at 1075.

187

Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R .Civ. P. 56(C)(2).

188

LaBove v. Raftery, 00-C-1394, 00-C-1423 (La. 11/28/01); 802 So. 2d 566, 573.

30

governs claims alleging discrimination under Louisiana’s Age Discrimination in Employment Act.189
To survive summary judgment in a case under the McDonnell Douglas framework, a plaintiff must
first establish a prima facie case of discrimination.190 “To establish a prima facie case, a plaintiff
need only make a very minimal showing.”191 If the plaintiff can establish a prima facie case, the
burden will shift to the defendant to articulate a legitimate, nondiscriminatory purpose for an adverse
employment action.192 The defendant must point to admissible evidence in the record,193 but the
burden is one of production, not persuasion.194 The defendant is not required to show that the
employment decision was proper, only that it was not discriminatory.195 “[E]ven an incorrect belief
that an employee’s performance is inadequate constitutes a legitimate, non-discriminatory reason”
for an adverse employment action.196
If the defendant satisfies its burden of production, the burden shifts back to the plaintiff to
show that any non-discriminatory purposes offered by the defendant are merely a pretext for

189

Deloach v. Delchamps, Inc., 897 F.2d 815, 818 (5th Cir. 1990); Jackson v. Cal-Western Packaging
Corp., 602 F.3d 374, 378 (5th Cir. 2010).
190
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Mendoza v. Helicopter, 548 F.
App’x 127, 129 (5th Cir. 2013) (applying the McDonnell Douglas framework to discrimination and retaliation
claims).
191

Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996).

192

Id.

193

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981).

194

Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).

195

LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 390 (5th Cir. 2007). See also Perez v. Region 20
Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002); Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir.
1995) (“The question is not whether an employer made an erroneous decision; it is whether the decision was made
with discriminatory motive.”).
196

Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991).

31

discrimination.197 Plaintiff can do this by presenting evidence of disparate treatment or
demonstrating that the proffered explanation is false or “unworthy of credence.”198
C.

Analysis
A prima facie case of employment discrimination based on age requires a showing that: (1)

the plaintiff is between forty and seventy years of age; (2) the plaintiff was qualified for the job at
issue; (3) the plaintiff was discharged; and (4) the plaintiff was either i) replaced by someone outside
the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his
age.199 Kestler asserts that he has demonstrated a prima facie case of unlawful discrimination
because: (1) at the age of 53, he was within the protected class; (2) he was qualified for the position;
(3) he was discharged; and (4) he was replaced by someone outside of the protected class, who was
39 years old when he replaced Kestler.200 In support, Kestler submits his own declaration in which
he states that he is currently 55 years old, his separation notice dated February 25, 2014, as well as
Motiva’s responses to interrogatories, in which Motiva asserts that the individual hired to fill the
position that Kestler held prior to his termination is Victor L. Adams, who was born in 1974.201
Kestler has also submitted excerpts of deposition testimony from Perry Montz, Kestler’s supervisor,
who testified that Kestler was “very respected by the crafts [sic], and he knows his craft, so he was
looked at by the craftsmen as a mentor.”202 When Montz was asked, “Also, you indicated he is
highly respected because of his knowledge and work ethics,” Montz responded, “Yea, so I just

197

Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).

198

Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010).

199

LaBove, 802 So. 2d at 573; Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010).

200

Rec. Doc. 32 at p. 11.

201

Id. (citing Rec. Doc. 32-2 at p. 1; Rec. Doc. 32-8 at p. 1; Rec. Doc. 32-11 at p. 6).

202

Rec. Doc. 32-6 at p. 3.

32

explained that.”203 Wayne Fernandez, another employee of Motiva, testified that he had discussions
with Montz about bringing in Kestler to a position as Maintenance Planner for the machine shop,
stating “Perry [Montz] and I knew the best thing for the machine shop moving forward would be to
have George [Kestler] in my previous position. He was – there was no learning curve for him. He
was as good or over and above what I was doing . . . .”204 However, Motiva does not contest that
Kestler was qualified for his position.
Motiva asserts that Kestler cannot establish a prima facie case of age discrimination because
he was replaced by an individual in the protected age group and he has no evidence that similarly
situated individuals outside the protected age group were treated differently.205 Kestler presents
evidence that he was terminated in 2014 and the employee who replaced him was born in 1974.206
Therefore, depending on the month in which Adams was born, he may have been either thirty-nine
years old and outside the protected age group, or forty years old and within the protected age group.
Although Motiva does not provide any evidence of the exact date of birth of its employee Adams,
it appears that Motiva’s argument is that if Adams is forty years old, Kestler cannot establish a prima
facie case of age discrimination.
In Bienkowski v. American Airlines, the Fifth Circuit found that a plaintiff can establish a
prima facie case of age discrimination where the plaintiff is replaced by a younger worker, even if
the younger worker is also within the protected class.207 However, in Bienkowski the court also found

203

Id.

204

Rec. Doc. 32-5 at p. 5.

205

Rec. Doc. 17-1 at pp. 9–10.

206

Rec. Doc. 32-11 at p. 6.

207

Bienkowski v. Am. Airlines, 851 F.2d 1503, 1506 (5th Cir. 1988).

33

that such a showing is not necessarily sufficient to prove a prima facie case, and the general
requirement is that a plaintiff must show that he was replaced by a worker “sufficiently younger in
the context of his employment to permit an inference of age discrimination.”208 The Fifth Circuit in
Bienkowski found that the five year age difference between the plaintiff and the new employee,
along with the fact that the replacement worker was the same age, fifty-four, as the average worker
in the plaintiff’s position, created a close question of whether the plaintiff had established a prima
facie case.209 Kestler has presented evidence that Adams was born in 1974 and Motiva has submitted
no evidence to show that Adams was forty years old rather than thirty-nine years old at the time that
he was hired. Moreover, even if Adams was forty years old, the age difference between Kestler and
Adams is thirteen years, and is therefore much greater than the five-year age difference between the
plaintiff and the new employee in Bienkowski, thereby distinguishing this case from Bienkowski.
In this case, the first three prongs of a prima facie case of age discrimination are undisputed:
Kestler was within the protected class, he was qualified for his position, and he was discharged from
that position. Kestler has also satisfied the final prong requiring a plaintiff to show that he was either
i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii)
otherwise discharged because of his age because he was replaced by someone sufficiently
younger.210 Accordingly, Kestler has stated a prima facie case for age discrimination and therefore
the Court next turns to whether Motiva has articulated a legitimate, nondiscriminatory purpose for
an adverse employment action.211

208

Id.

209

Id.

210

LaBove, 802 So. 2d at 573; Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010).

211

Nichols, 81 F.3d at 41.

34

Motiva has asserted that it terminated Kestler’s employment because it found that he falsified
his time records and committed payroll fraud.212 Motiva contends that it is well-established that
falsifying time records constitutes a legitimate, non-discriminatory reason for discharging an
employee.213 In support, Motiva cites a case from another section of the Eastern District of
Louisiana, Huda v. Lockheed Martin, where the court stated that “district courts in the Fifth Circuit
have specifically found that falsification of time sheets constitutes a legitimate non-discriminatory
grounds for discharges.”214 Motiva has presented the investigation summary of Lisa Nix, the Human
Resources Account Manager who investigated Kestler’s time records, in which Nix concluded:
After reviewing the data, George Kestler did falsify time entry and commit payroll
fraud by coding hour[s] of overtime that he did not work. There are five confirmed
instances on the following dates: 1/28/13, 1/29/13, 7/24/13, 11/19/13, and 12/25/13
. . . . In addition to the confirmed instances George was unable to provide an
explanation for coding on average 0.72 hours per day of overtime outside of the
hours he was working on site. George’s role as a Maintenance Planner generally does
not involve work outside of the site after hours.215
In addition, Motiva has submitted the deposition testimony of Nix, where she testified that Kestler
was terminated due to payroll fraud.216 Therefore, because Motiva has presented a legitimate,
nondiscriminatory purpose for Kestler’s termination, the burden shifts back to Kestler to show that
the non-discriminatory purpose for termination offered by Motiva is merely a pretext for
discrimination.217

212

Rec. Doc. 17-1 at p. 10; Rec. Doc. 32-12 at pp. 3–4.

213

Rec. Doc. 17-1 at p. 10.

214

Id. (citing No. 07-9090, 2009 WL 1211026 (E.D. La. May 1, 2009) (Barbier, J.)).

215

Rec. Doc. 17-5 at pp. 4–5.

216

Rec. Doc. 17-4 at p. 6.

217

Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).

35

To establish pretext, the plaintiff must either show disparate treatment or show that the
proffered explanation is false or unworthy of credence.218 To succeed at this third stage, a plaintiff
“must do more than just dispute the underlying facts and argue that [the employer] made the wrong
decision . . . .”219 Kestler asserts that he has presented sufficient evidence to show that Motiva’s
alleged non-discriminatory reason is a pretext for age discrimination.220 In support, Kestler contends
that the managers at the Norco Refinery were never told to stop having Kestler fill in for them and
Kestler was never told not to fill in for the other managers.221 Kestler also asserts in his declaration
that he often did work from home when employees called him from the facility after he had left.222
Furthermore, Kestler asserts in his declaration that he was informed by Partipilo, the overseer of
payroll for employees at the Norco Refinery, that he was eligible for full retirement pension in less
than two years and therefore “Partipilo knew or should have know[n] of my age and years of
experience in the company prior to his questioning [the] overtime hours.”223
In opposition, Motiva asserts that: (1) it has presented evidence that it did not rush to
judgment in deciding to terminate Kestler; (2) Kestler admitted that he charged the company for
eight hours of work on Christmas Day in 2013 despite the fact that he did not actually work that day
and merely carried the “duty phone;” (3) Kestler routinely charged every minute of his lunch period

218

Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378–79 (5th Cir. 2010).

219

LaMaire v. La. Dep’t of Transp. and Dev., 480 F.3d 383, 391 (5th Cir. 2007).

220

Rec. Doc. 32 at p. 12.

221

Rec. Doc. 32-2 at p. 4.

222

Id. at p. 5.

223

Id. at p. 6.

36

as work time and; (4) on average, Kestler billed the company for three quarters of an hour per day
in excess of his first clock into the refinery and his last clock out.224
At the core of Kestler’s opposition to the motion for summary judgment is an attempt to
prove that his employer made the wrong decision in firing him. Kestler submits that other employees
knew him to be a valuable employee, that the overtime hours he reported were hours he actually
worked because employees called him after he had left the facility, and that the central dispute in
the allegations of falsifying time records is over 45 minutes in overtime per day.225 Furthermore,
Kestler contends that he was never counseled against filling in for other managers and that his
supervisor failed to monitor his overtime appropriately.226 Kestler does not dispute that he charged
the company for time after he had left the refinery.227 Rather, Kestler asserts that he believed that
the hours he submitted were properly counted as work hours.228 However, even if Kestler’s
arguments are accurate, “a fired employee’s actual innocence of his employer’s proffered accusation
is irrelevant as long as the employer reasonably believed it and acted on it in good faith.”229 Motiva
has submitted evidence that it engaged in a month-long investigation, gave Kestler multiple
opportunities to explain the records he had submitted, looked at the gate logs, and spoke to other
Motiva employees about Kestler’s overtime.230 In opposition to the motion for summary judgment,
Kestler has submitted emails between himself and Nix in which Kestler explained to Nix why he

224

Rec. Doc. 17-1 at p. 11.

225

Rec. Doc. 32 at pp. 12–13.

226

Id. at p. 14.

227

Rec. Doc. 32-2 at p. 9.

228

Id. at p. 4.

229

Cervantez v. KMGP Servs. Co. Inc., 349 F. App’x 4, 10 (5th Cir. 2009) (citing Waggoner v. City of
Garland, 987 F.2d 1160, 1165 (5th Cir. 1993)).
230

Rec. Doc. 17-5.

37

charged his time the way he did and asserted that he had not received any formal training regarding
how to charge his time.231 Although Kestler asserts in his declaration that “[Motiva] attempted to
terminate [him] for several issues before subsequently and ultimately agreeing on the pay
discrepancy,” the issues he asserts they tried to fire him over were “taking duty [phone] for
Maintenance Supervisor on Christmas day” and a training in Houston.232 These issues were
accounted for in Nix’s investigation summary.233 Therefore, the Court finds that Kestler has not
submitted any evidence to rebut Motiva’s evidence of a good faith belief that Kestler had falsified
his time.
Kestler also asserts that Partipilo had informed him that he was eligible for full pension
retirement in less than two years.234 The Fifth Circuit has found that although “musings about
eventual retirement [] do not evidence discriminatory intent,” “persistent supervisor comments about
retirement can compound other evidence that a proffered nondiscriminatory reason for terminating
an employee was pretextual.”235 The Fifth Circuit has articulated a two-part test for evaluating
remarks offered as circumstantial evidence alongside other alleged discriminatory conduct: “(1)
discriminatory animus (2) on the part of the person that is either primarily responsible for the
challenged employment action or by a person with influence or leverage over the relevant decision
maker.”236 Kestler has presented no evidence that Partipilo was responsible for the employment

231

Rec. Doc. 32-8 at p. 4.

232

Rec. Doc. 32-2 at p. 7.

233

Rec. Doc. 17-5 at pp. 4–5.

234

Rec. Doc. 32-2 at p. 6.

235

Ng-A-Mann v. Sears, Roebuck & Co., No. 15-20083, 2015 WL 7348968 (5th Cir. 2015) (quoting Moore
v. Eli Lilly & Co., 990 F.2d 812, 818 (5th Cir. 1993)).
236

Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012).

38

decision or that he had any influence over any decisionmaker. Furthermore, Motiva has presented
the declaration of Partipilo in which he states that he has never spoken with Kestler or written
Kestler a letter, nor was he involved in the decision to terminate Kestler’s employment.237
The Fifth Circuit, in Kilgore v. Brookeland, held that, where a bus driver was terminated by
his employer and the employer mentioned at the time of termination that the plaintiff was eligible
for retirement, a comment concerning retirement eligibility, by itself, was an insufficient basis for
a jury to conclude that the plaintiff’s age more likely motivated the decision to terminate the plaintiff
than the proffered reasons of job performance and budget cuts.238 Furthermore, in Cervantez v.
KMGP Services Co. Inc., the Fifth Circuit stated that a comment is not evidence of discrimination
if it is the sole proof of pretext or if it is not made in temporal proximity to the adverse employment
decision.239 In this case, Kestler does assert that Partipilo made any comment regarding retirement
in temporal proximity to the investigation, stating only that he was informed by Human Resources
“several times in the last few years of my employment about my retirement possibilities.”240
Although Kestler asserts that Partipilo had access to Kestler’s age and that it only mattered to
Motiva “that he was getting paid too much because he was there too long and he was too old,” an
employee’s testimony “regarding his subjective belief that his termination resulted from age
discrimination is insufficient to make an issue for the jury in the face of proof showing an adequate,
nondiscriminatory reason for his release.”241
237

Rec. Doc. 36-1 at p. 28.

238

538 F. App’x 473, 474–75, 477 (5th Cir. 2013).

239

349 F. App’x 4, 11 (5th Cir. 2009) (citing Palasota v. Haggar Clothing Co., 342 F.3d 569, 577 (5th Cir.
2003); Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d 255, 261 (5th Cir. 2007).
240

Rec. Doc. 32-3 at p. 5 (“Q. Did your age ever come up in any discussions that you had with either Lisa
Nix or Perry Montz? A. No.”); Rec. Doc. 32-2 at p. 6.
241

Molnar v. Ebasco Constructors, Inc., 986 F.2d 115 (5th Cir. 1993).

39

In addition, along with his amended supplemental memorandum, Kestler submits a document
that Kestler asserts is a worksheet calculating the amount of Kestler’s overtime work in January
2013.242 At the top of the document is a handwritten note that states “George Kestler – retirement
eligible*.”243 Motiva objects to the Court’s consideration of this document on the grounds that: (1)
it is beyond the scope of the Court’s briefing Order; (2) the document was not listed in Kestler’s
exhibit list or Kestler’s list of exhibits in the proposed Pre-Trial Order; and (3) he has no evidence
to support the arguments that he is making about this exhibit.244 The Court requested additional
briefing on the narrow issue of whether Motiva’s alleged failure to follows its progressive
disciplinary policy raises a genuine issue of material fact that the stated reason for Kestler’s
termination is merely a pretext for discrimination.245 The Court did not request additional briefing
on any other issue, nor does Kestler explain why it failed to submit this document in connection with
its original opposition to the motion for summary judgment. Furthermore, Kestler submitted no
evidence providing any authentication or context for this document, including who wrote the
handwritten note on the document or when the note was written. However, even if the Court were
to consider this document, the document does not raise an inference of pretext. As previously stated,
“musings about eventual retirement simply do not evidence discriminatory intent,”246 nor does
Kestler provide any evidence to show that the note was written by “an individual either primarily

242

Rec. Doc. 50-1 at p. 3.

243

Id.

244

Rec. Doc. 47 at p. 3.

245

Rec. Doc. 41 at p. 1.

246

Moore v. Eli Lilly & Co., 990 F.2d 812, 818 (5th Cir. 1993).

40

responsible for the challenged employment action or by a person with influence or leverage over the
relevant decision maker.”247
Kestler also points to a chart that he allegedly created representing employees in the
Maintenance Department as evidence of age discrimination within Motiva.248 Motiva lodges several
objections to the Court’s consideration of this document on the grounds of hearsay, the fact that it
was never produced in discovery or included on Kestler’s exhibit list, that it is “fundamentally
inconsistent” with Kestler’s deposition testimony, and relevance.249 In the chart, Kestler asserts that
in Maintenance Manager Verdell Banner’s (“Banner”) department, Clint Gagliano, who is in his 30s,
replaced an individual in the position of Maintenance Supervisor who was around 58 years old.250
Kestler asserts that Banner participated in the decision to fire Kestler.251 Kestler also asserts that
Motiva hired all young Heavy Equipment Operators and an applicant in his fifties did not get the
job.252 The chart also shows that Mechanical Inspector jobs went to younger applicants over older
applicants.253 However, the chart, created by Kestler as a demonstrative of his argument in
opposition to the motion for summary judgment, is not evidence. Pursuant to Federal Rule of
Evidence 1006, a “proponent may use a summary, chart, or calculation to prove the content of

247
Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012). Motiva argues that the Court should deem
all of the facts listed in its Statement of Undisputed Facts as admitted because Kestler does not provide any specific
reference to record evidence in opposition. Rec. Doc. 36 at pp. 3–4. Motiva also asserts that the Court should
disregard portions of Kestler’s declaration on several grounds. Id. at pp. 4–8. The Court need not address these
objections as the Court finds that even considering these documents, Kestler has failed to create a genuine issue of
material fact that the stated grounds for termination are false or unworthy of credence.
248

Rec. Doc. 32 at p. 11 (citing Rec. Doc. 32-2 at p. 11).

249

Rec. Doc. 36 at pp. 11–13.

250

Rec. Doc. 32-2 at p. 11.

251

Id. (citing Rec. Doc. 32-12 at pp. 3–5).

252

Id. (citing Rec. Doc. 32-6 at p. 5).

253

Rec. Doc. 32-2 at p. 11.

41

voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The
proponent must make the originals or duplicates available for examination or copying, or both, by
other parties at a reasonable time and place.” The chart Kestler has submitted in opposition to
summary judgment does not appear to meet any of the requirements of Federal Rule of Evidence
1006 to be considered proper summary evidence. Moreover, this chart does not even appear to
represent any records. Furthermore, Motiva contends that this document was never produced in
discovery and was not included on Kestler’s exhibit list.254
A plaintiff can show that the proffered reason for his termination was pretextual by
presenting evidence of disparate treatment or demonstrating that the proffered explanation is false
or “unworthy of credence.”255 In his opposition, Kestler does not argue that evidence of disparate
treatment demonstrates that the proffered reason for his termination was pretextual. Rather, Kestler
argues only that the proffered reason was false.256 However, even if the Court were to construe
Kestler’s citation of this chart as Kestler proffering evidence of disparate treatment, the Fifth Circuit
has held that in disparate treatment cases, the plaintiff must show “nearly identical” circumstances
for employees to be considered similarly situated.257 In Ng-A-Mann v. Sears, Roebuck & Co., a 72year-old salesman brought an age discrimination claim against his employer after he was terminated
for violating the company’s coupon policy.258 In arguing that the employer’s explanation for his
termination was a pretext for discrimination, the plaintiff argued that multiple members observed

254

Rec. Doc. 36 at p. 10.

255

Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378–79 (5th Cir. 2010).

256

Rec. Doc. 32 at pp. 12–14.

257

Berquist v. Washington Mut. Bank, 500 F.3d 344, 353 (5th Cir. 2007).

258

No. 15-20083, 2015 WL 7348968 (5th Cir. 2015).

42

his use of coupons without complaint, and the plaintiff identified other employees who also used
coupons as he did but were not punished.259 The Fifth Circuit held that the plaintiff failed to create
a genuine dispute regarding disparate treatment, stating:
[Plaintiff’s] declaration notes that certain employees who violated the coupon policy
were “commissioned salespeople like [him],” but says nothing about the severity or
frequency of their violations aside from alleging that such coupon misuse was
“common practice.” He does not identify any employee flagged by the audit for
violations of store policy but was not disciplined, and he offers no evidence that the
audit was motivated by discriminatory animus. [Plaintiff] fails to identify with
sufficient specificity a similarly situated employee who violated the coupon policy
with comparable frequency and was not fired.260
Likewise, in Vann v. Mattress Firm, Inc., the Fifth Circuit affirmed the district court’s grant of
summary judgment in a case where an employee brought suit against her employer alleging age, sex,
and race based discrimination after she was terminated when a customer complained that she had
altered the customer’s bill.261 In Vann, the employee argued that her termination was pretextual
because similarly situated employees who were not members of the relevant protected classes were
treated favorably in comparison with her.262 The Fifth Circuit found that the employee had “not
offered any comparators with a similar history of poor teamwork and facility management who were
preferentially treated.”263 The court stated that “[Plaintiff] has offered evidence of other employees,
not members of protected classes, who sold used goods as new, were late or absent from work,
engaged in unprofessional conduct towards customers or coworkers, and shared information with
competitors” who were not terminated; however, their activities were insufficiently close to the

259

Id. at *2.

260

Ng-A-Mann, 2015 WL 7348968 at *3.

261

No. 15-20082, 2015 WL 5675039, at *2 (5th Cir. 2015).

262

Id. at *3.

263

Id.

43

plaintiff’s to create a genuine issue of material fact as to whether her employer’s justifications are
pretext.264
Kestler makes no argument regarding any similarity between himself and the individuals he
lists in the chart. Looking at the chart, it is clear that these individuals do not hold the same position
as Kestler did when he was terminated. Kestler was a Maintenance Planner, whereas the individuals
listed on the chart were hired as Mechanical Inspectors, Heavy Equipment Operators, and a
Maintenance Supervisor.265 Nor has Kestler alleged that any of these individuals were also accused
of falsifying time records or committing payroll fraud. Therefore, the Court concludes that, even
assuming that the chart is admissible, Kestler has failed to raise a genuine issue of material fact that
Motiva’s stated reason for his termination was pretext for age discrimination.266
Finally, citing the deposition testimony of Perry Montz, Kestler asserts that Motiva has a
progressive discipline policy that has been used in the past and contends that it was not used in
Kestler’s case.267 Kestler also submitted the deposition testimony of Wayne Fernandez
(“Fernandez”), another employee of Motiva, who also testified that Motiva has a progressive
discipline policy, and that, as a supervisor, he would issue a warning before imposing any
discipline.268 Kestler asserts that this failure to follow the progressive discipline policy raises a
genuine issue of material fact that the stated reason for Kestler’s termination is merely a pretext for
discrimination.269 In opposition, Motiva asserts that it did not deviate from its policies when it

264

Id. at *4.

265

Rec. Doc. 32-2 at p. 11.

266

Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).

267

Rec. Doc. 42 at pp. 1–2 (citing Rec. Doc. 32-6 at p. 4).

268

Rec. Doc. 32-5 at pp. 7–8.

269

Rec. Doc. 42 at p. 1.

44

terminated Kestler because the company always reserves the right to skip steps in the progressive
discipline policy, and the decision was made in this case because Kestler’s conduct was sufficiently
egregious to warrant termination.270 Motiva also contends that an employer’s failure to follow a
progressive discipline policy is only probative of discriminatory intent when the plaintiff has proof
that the policy was applied differently to others outside the protected class and here, there is no
evidence to suggest that Motiva treated younger employees who falsified their time records any
differently than it treated Kestler.271
The Fifth Circuit has found that when an employer opts to have a disciplinary system, failure
to follow that system may give rise to inferences of pretext.272 Motiva contends that Kestler also
must show that the policy was applied differently to others outside the protected class; however, the
Fifth Circuit cases Motiva cites in support are cases concerning discrimination under Title VII, not
the ADEA. The only case discussing progressive discipline policies involving an age discrimination
claim cited by Motiva is Hedgemon v. Madison Parish School Board, which is an unpublished
Western District of Louisiana case.273 The Fifth Circuit, in a case decided in 2015, Goudeau v.
National Oilwell Varco, in discussing pretext in an ADEA claim, stated that “when an employer opts
to have a disciplinary system that involves warnings, failure to follow that system may give rise to
inferences of pretext.”274 The court made no mention of a requirement that the plaintiff also submit
evidence that he was treated differently from others outside of his protected group. Nor did the Fifth

270

Rec. Doc. 44 at p. 3.

271

Id. at pp. 4–5 (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 346 (5th Cir. 2007)).

272

Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 477 (5th Cir. 2015).

273

No. 14-0817, 2015 WL 4094701 (W.D. La. July 7, 2015).

274

793 F.3d 470, 477 (5th Cir. 2015).

45

Circuit articulate any such requirement in Machinchick v. PB Power, Inc., after stating that the nonmandatory nature of a progressive discipline policy and the fact that the plaintiff was an at-will
employee “d[id] not eliminate the inference of pretext raised by [the] failure to follow an internal
company policy specifically stating that it should be ‘followed in most circumstances.’”275
Therefore, the Court is not persuaded that Kestler must also provide evidence that Motiva applied
its progressive discipline policy differently to younger employees who falsified their time records.276
Accordingly, the Court now turns to whether Kestler has raised a genuine issue of material fact that
Motiva’s alleged failure to follow its progressive discipline policy demonstrates that the stated
reason for Kestler’s termination is pretextual.
In evaluating whether a failure to follow a progressive discipline policy gives rise to an
inference of pretext under the McDonnell Douglas framework, courts consider whether there were
guidelines regarding when the policy should be used, whether there were exceptions to the policy,
and whether the policy was not just a policy on paper but whether the policy was actually used.277
Kestler submits the testimony of Montz, who asserts that the progressive discipline policy at Motiva
involves coaching and counseling as well as formal discipline which includes “an oral reminder, a
written reminder, a DML – which is decision-making leave – and termination.”278 Kestler also
submits deposition testimony that Montz and Fernandez have used this policy in the past, as well

275

398 F.3d 345, 354 n.29 (5th Cir. 2005).

276

Kestler also asserts that Motiva is estopped from claiming that Kestler has no evidence of younger
employees who the company claims falsified time records and were given warnings instead of termination. Rec.
Doc. 50 at p. 5. However, considering the Court’s analysis above, the Court need not address this argument.
277

See, e.g., Keller v. Coastal Bend College, No. 15-40710, 2015 WL 6445751 (5th Cir. 2015); Taylor v.
Peerless Indus. Inc., 322 F. App’x 355, 367 (5th Cir. 2009); Bugos v. Ricoh Corp., No. 07-20757, 2008 WL
3876548, at *5 (5th Cir. 2008); Machinchick, 398 F.3d at 354 n.29.
278

Rec. Doc. 32-6 at p. 4.

46

as evidence that disciplinary action was taken in the past against Kestler using this policy.279
However, although Montz and Fernandez state that there is a progressive discipline policy, they also
both acknowledge that there are exceptions to the policy.280 Montz specifically states that certain
circumstances, like stealing or using a racial slur, would merit automatic termination.281
Motiva submits the deposition testimony of Nix, who testified that the company always
reserves the right to skip steps in the progressive discipline policy and in Kestler’s case, the decision
was made that his conduct was egregious enough to warrant termination.282 Motiva also presents
evidence that another employee, David Landeche, who was within the protected class, was also
terminated for submitting false time records and asserts that he was also terminated without
progressive discipline.283
It is Kestler’s burden to show that the non-discriminatory purpose for termination offered
by Motiva is merely a pretext for discrimination.284 Kestler has not pointed to any case where a court
has found that the plaintiff had raised an inference of pretext in circumstances similar to the
circumstances here. This case is unlike Machinchick because there has been no evidence presented
that the progressive discipline policy was mandatory, or even that it was supposed to be “followed
in most circumstances.” Every witness who testified about the policy noted that there were
exceptions to the policy for egregious cases and Nix testified that a decision was made that Kestler’s

279

Id.; Rec. Doc. 32-5 at pp. 7–8; Rec. Doc. 44.

280

Rec. Doc. 32-5 at p. 8; Rec. Doc. 32-6 at p. 4.

281

Rec. Doc. 32-6 at p. 4.

282

Rec. Doc. 44-1 at p. 8.

283

Rec. Doc. 44-3 at p. 6; Rec. Doc. 44-4.

284

Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).

47

conduct in particular warranted termination.285 Nor is this case analogous to Goudeau, where the
court found that the plaintiff’s employer had “manufactured steps in the disciplinary policy by
issuing written warnings to paper his file after it had decided to fire him.”286
Nix testified that a decision was made that Kestler’s conduct was egregious enough to
warrant termination.287 It is not the place of this Court to second guess Motiva’s evaluation of the
egregiousness of Kestler’s conduct. In Moss v. BMC Software, Inc., the Fifth Circuit stated that
“[t]he ADEA was not intended to be a vehicle for judicial second-guessing of employment decisions
nor was it intended to transform the courts into personnel managers. The ADEA cannot protect older
employees from erroneous or even arbitrary personnel decisions, but only from decisions which are
unlawfully motivated.”288 Therefore, the Court finds that Kestler has presented no evidence that
creates a genuine issue of material fact that the stated grounds for his termination, falsification of
time records and payroll fraud, is merely a pretext for discrimination.

285

Rec. Doc. 44-1 at p. 8.

286

793 F.3d 470, 477 (5th Cir. 2015).

287

Rec. Doc. 44-1 at p. 8.

288

610 F.3d 917, 926 (5th Cir. 2010).

48

IV. Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that Motiva’s “Motion for Summary Judgment”289 is
GRANTED.

4th
NEW ORLEANS, LOUISIANA, this ____ day of March, 2016.
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

289

Rec. Doc. 17.

49