Pierce v. Kellogg Brown and Root
ORDER AND REASONS regarding 70 Motion for Summary Judgment. For the foregoing reasons, defendant's motion for summary judgment is GRANTED. Plaintiff's complaint is DISMISSED. Signed by Judge Sarah S. Vance on 11/6/2017. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KELLOGG BROWN & ROOT, INC.
SECTION “R” (3)
ORDER AND REASONS
Before the Court is defendant’s motion for summary judgment on
plaintiff’s claim that he was discharged because of his race.1 The Court finds
that plaintiff has failed to raise an issue of material fact that he was treated
less favorably than similarly situated employees of a different race, and
therefore grants the motion.
Plaintiff brings a claim of racial discrimination in violation of Title VII
of the Civil Rights Act. 2 Plaintiff Donald Pierce is an African-American
welder. 3 On April 29, 2015, Defendant Kellogg Brown & Root, Inc. hired
plaintiff as a combination pipe welder on a construction project in
R. Doc. 70.
R. Doc. 1.
Id. at 1 ¶ 2.
Waggaman, Louisiana.4 Plaintiff was hired as an at-will employee.5 Plaintiff
worked on the night shift, and he asserts that he was the only AfricanAmerican on his five-person night shift crew.6 The night shift pipe foremen,
welding foreman, and general foreman were white.7
At the time plaintiff was hired, defendant required new welders to pass
three welding tests on carbon, chrome, and flux core. 8 As a condition of
continued employment, defendant also required that a new welder’s first two
welds on the project, known as production welds, pass x-ray examination.9
Plaintiff passed his three welding tests and his two production welds satisfied
x-ray examination.10 But plaintiff was discharged after problems with two
subsequent welds, referred to in the pleadings as the Chrome Weld and the
Underground Weld. 11
A. Chrome Weld
The Chrome Weld involved a heavy-walled chrome or stainless pipe
intended to carry high pressure steam.12 A white welder, Wiley Hinton, Jr.,
R. Doc. 70-3 at 1-2 ¶¶ 2-5; R. Doc. 74-1 at 2 ¶¶ 2-5.
R. Doc. 70-3 at 2 ¶ 6; R. Doc. 74-1 at 2 ¶ 6.
R. Doc. 74-1 at 2 ¶ 5.
R. Doc. 70-3 at 3-4 ¶¶ 14-18; R. Doc. 74-1 at 3-4 ¶¶ 15-18.
R. Doc. 70-3 at 2 ¶ 7; R. Doc. 74-1 at 2 ¶ 7.
R. Doc. 70-3 at 2-3 ¶¶ 9-11; R. Doc. 74-1 at 2-3 ¶¶ 9-11.
R. Doc. 70-3 at 2-3 ¶¶ 8-11; R. Doc. 74-1 at 2-3 ¶¶ 8-11.
R. Doc. 70-1 at 2; R. Doc. 74.
R. Doc. 70-3 at 4 ¶ 21; R. Doc. 74-1 at 5 ¶ 21.
began welding the Chrome Weld with the wrong filler material. 13 The parties
disagree whether the welding foreman, Jackie Wilson, or one of the pipe
foremen, Lewis “Peyton” Travis, shared responsibility for the use of the
incorrect filler material.14 The erroneous filler material had to be cut out by
a third-party contractor. 15
In response to this error, the night shift
superintendent, Keith Kingsland, testified that he instructed Wilson to tell
the welders that they had to do a better job on the Chrome Weld going
Plaintiff was then assigned to complete the Chrome Weld, and he
worked on this weld for three nights. 17 The welding specifications for the
Chrome Weld require that the pipe be pre-heated to a certain temperature
during the welding process to prevent the weld from cracking. 18 A thirdparty contractor, Phoenix Services, provided heat treatment services on the
Defendant’s welding procedure specification stated that the
R. Doc. 70-3 at 4 ¶ 22; R. Doc. 74-1 at 5 ¶ 22.
Defendant states that Wilson issued Hinton the wrong filler material.
R. Doc. 70-3 at 4 ¶ 22. Plaintiff asserts that Travis, not Wilson, made the
mistake. R. Doc. 74-1 at 5 ¶ 22. Travis testified that he wrote out the rod for
the wrong filler wire. See R. Doc. 70-5 at 18 (Travis Depo. at 18).
R. Doc. 70-3 at 5 ¶ 24; R. Doc. 74-1 at 5 ¶ 24.
R. Doc. 70-6 at 10-11 (Kingsland Depo. at 49-50); see also R. Doc. 703 at 5 ¶ 26; R. Doc. 74-1 at 5 ¶ 26.
R. Doc. 70-3 at 5 ¶ 26; R. Doc. 74-1 at 5 ¶ 26; R. Doc. 74-2 at 10.
R. Doc. 70-3 at 5-6 ¶¶ 29-31; R. Doc. 74-1 at 6 ¶¶ 29-31.
R. Doc. 70-3 at 6 ¶ 30; R. Doc. 74-1 at 6 ¶ 30.
temperature must be checked with “temperature indicating crayons or an
approved equal.”20 Plaintiff did not check the temperature on the Chrome
Weld before he began welding, and represents that he has always relied on
the third party contractor to provide heat for this type of weld. 21
After plaintiff completed work on the Chrome Weld, the quality control
staff reported that pre-heat treatment was not properly maintained during
the welding process. 22 Plaintiff admits that this report was made, but argues
that pre-heat treatment was in fact applied.23 Plaintiff testified that the pipe
was hot during the welding process. 24 But the parties agree that, whatever
the underlying cause of the problem, the Chrome Weld was cut out for a
second time and re-worked.25
B. Underground Weld
Plaintiff was later assigned to weld a carbon steel pipe, referred to by
the parties as the Underground Weld. 26 Plaintiff asserts that an unknown
R. Doc. 74-6 at 10.
R. Doc. 70-3 at 6 ¶ 35; R. Doc. 74-1 at 6 ¶ 35; R. Doc. 70-4 at 51-52
(Pl.’s Depo. at 89-90).
R. Doc. 70-3 at 7 ¶ 39; R. Doc. 74-1 at 8 ¶ 39; R. Doc. 70-5 at 9 (Travis
Depo. at 25).
R. Doc. 74-1 at 7-8 ¶ 39.
R. Doc. 70-4 at 53 (Pl.’s Depo. at 94); R. Doc. 74 at 13-15.
R. Doc. 70-3 at 7-8 ¶¶ 42-43; R. Doc. 74-1 at 8 ¶ 42.
R. Doc. 70-3 at 8 ¶¶ 44-45; R. Doc. 74-1 at 8 ¶¶ 44-45.
welder worked on the Underground Weld before plaintiff began work on it. 27
Plaintiff did not check the prior welder’s work before beginning to weld. 28
Plaintiff represents that he was told to hurry up on this job and that the weld
would not be tested by x-ray.29 After plaintiff completed the weld, the
Underground Weld was subjected to x-ray testing and failed the test.30
C. Plaintiff’s Discharge
On or about May 12, 2015, Kingsland was informed by quality control
employees that the Chrome Weld needed to be cut out a second time.31
Kingsland testified that he was told the pipe was not preheated.32 According
to Kingsland, he planned to suspend plaintiff and his welding foreman and
to reprimand the pipe foreman in response to this mistake. 33 A few days
later, Kingsland was informed by the night shift general foreman, Bobby
Bloodsworth, that the Underground Weld failed an x-ray and that plaintiff
R. Doc. 70-3 at 8 ¶¶ 46-47; R. Doc. 74-1 at 8-9 ¶¶ 46-47.
R. Doc. 70-3 at 8 ¶ 47; R. Doc. 74-1 at 9 ¶ 47.
R. Doc. 74-1 at 9 ¶ 47. Defendant admits that one supervisor, Bobby
Bloodsworth, told plaintiff that the Underground Weld was not supposed to
be x-rayed. See R. Doc. 74-2 at 5.
R. Doc. 70-3 at 9-10 ¶¶ 49-53; R. Doc. 74-1 at 9 ¶¶ 49-53; R. Doc. 75-2
at 1; R. Doc. 77 at 5 (Knight Depo. at 40).
R. Doc. 70-3 at 10-11 ¶ 59; R. Doc. 74-1 at 9 ¶ 59.
R. Doc. 70-6 at 9 (Kingsland Depo. at 37).
Id. at 27, 36 (Kingsland Depo. at 71, 83).
was the welder on both the Chrome Weld and the Underground Weld. 34
Plaintiff was the only welder on the night shift to be
terminated for substandard job performance between January 1, 2015, and
June 1, 2015, after successfully completing qualifier welds.36
After his termination, plaintiff filed a charge of age and race
discrimination with the Equal Employment Opportunity Commission.37
Plaintiff received a right-to-sue letter on October 29, 2015.38
December 3, 2015, plaintiff filed a complaint in this Court alleging that
defendant discharged him on the basis of race in violation of Title VII of the
Civil Rights Act of 1964, as amended. 39 Defendant now moves for summary
Id. at 37-38 (Kingsland Depo. at 84-85); R. Doc. 70-3 at 11 ¶ 61;
R. Doc. 74-1 at 10 ¶ 61;
R. Doc. 70-3 at 11 ¶ 62; R. Doc. 74-1 at 10 ¶ 62.
R. Doc. 74-2 at 6.
R. Doc. 1 at 1 ¶ 3.
Id. at 1-4.
R. Doc. 70.
Summary judgment is warranted when “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.” 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). When assessing whether a dispute as to any material
fact exists, the Court considers “all of the evidence in the record but refrain[s]
from making credibility determinations or weighing the evidence.” Delta &
Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99
(5th Cir. 2008).
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.” Galindo v. Precision
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at
1075. “No genuine dispute of fact exists if the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party.” EEOC v.
Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the
burden of proof 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.” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
1264-65 (5th Cir. 1991) (internal citation omitted). The nonmoving party can
then defeat the motion by either countering with evidence sufficient to
demonstrate the existence of a genuine dispute of material fact, or “showing
that the moving party’s evidence is so sheer that it may not persuade the
reasonable fact-finder to return a verdict in favor of the moving party.” Id.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at
The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of
summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)).
A. Requests to Strike
Both parties ask the Court to strike certain evidence. Plaintiff first
requests the Court strike evidence of his bad welds at other jobs because he
argues that his employment history is irrelevant and is inadmissible under
Federal Rule of Evidence 404(b)(1).41 Rule 404 provides that “[e]vidence of
a crime, wrong, or other act is not admissible to prove a person’s character
in order to show that on a particular occasion the person acted in accordance
with the character.” Fed. R. Evid. 404(b)(1). Defendant states that it offers
plaintiff’s past employment records not to show that he performed bad
welds, but to demonstrate that plaintiff was not qualified for his position. 42
Because the Court does not reach the issue of plaintiff’s qualifications, it need
not consider plaintiff’s history with other employers.
Plaintiff also requests the Court strike the transcript of a recorded call
between plaintiff and a former coworker, Tirrell Williams. 43 Plaintiff admits
R. Doc. 74 at 17.
R. Doc. 80 at 4. Defendant cites to Federal Rule of Evidence 405(b),
which provides that “[w]hen a person’s character or character trait is an
essential element of a charge, claim, or defense, the character or trait may
also be proved by relevant specific instances of the person’s conduct.”
R. Doc. 74-1 at 11 ¶ 74. Plaintiff’s objection is directed at the portion
of the transcript reproduced in defendant’s undisputed fact no. 74.
See R. Doc. 70-3 at 15 ¶ 74. It is not clear whether plaintiff also objects to
the full transcript offered as defendant’s exhibit G-1. See R. Doc. 70-15.
that he produced this recording, but argues that the transcript is uncertified,
incomplete, and inaccurate.44 Defendant offers a signed declaration from
defense counsel that the transcript is a true and correct transcription of the
recording of the conversation between plaintiff and Williams. 45 Moreover,
“[a]t the summary judgment stage, materials cited to support or dispute a
fact need only be capable of being ‘presented in a form that would be
admissible in evidence.’” LSR Consulting, LLC v. Wells Fargo Bank, N.A.,
835 F.3d 530, 534 (5th Cir. 2016) (quoting Fed. R. Civ. P. 56(c)(2)). The
transcript therefore need not be certified. The Court has listened to the
recording and finds the transcript to be accurate. The request to strike is
therefore denied. But the Court further finds that the transcript is not
material because nothing in either the transcript or in plaintiff’s version46 of
his call with Williams either creates or precludes a genuine issue of fact.
Defendant requests the Court strike plaintiff’s declaration 47 as
inadmissible hearsay and as a sham affidavit that contradicts plaintiff’s
sworn deposition testimony.48
The Fifth Circuit has explained that “a
plaintiff may not manufacture a genuine issue of material fact by submitting
R. Doc. 70-3 at 15 ¶ 73; R. Doc. 74-1 at 10-11 ¶¶ 73-74.
R. Doc. 70-14.
R. Doc. 74-1 at 12.
Id. at 2-16.
R. Doc. 80 at 1-2.
an affidavit that impeaches prior testimony without explanation.” Doe ex rel.
Doe v. Dallas Indep. School Dist., 220 F.3d 380, 386 (5th Cir. 2000); see
also Keller v. Coastal Bend Coll., 629 F. App’x 596, 601 n.4 (5th Cir. 2015)
(finding that a “sham affidavit” contradicting deposition testimony is not
admissible on summary judgment). Plaintiff’s declaration is combined with
plaintiff’s responses to defendant’s statement of undisputed material facts. 49
The Court finds that some portions of plaintiff’s declaration are admissible,
and declines to strike the full declaration. As outlined more specifically
below, the Court does not consider assertions in the declaration that
contradict plaintiff’s deposition testimony or contain inadmissible hearsay.
B. Requirements for a Prima Facie Case
Title VII prohibits employers from “discharg[ing] any individual, or
“otherwise  discriminat[ing] against any individual with respect to his
compensation, terms, conditions, or privileges of employment because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1). Plaintiff brings a claim of intentional discrimination on the
basis of race. 50
Because plaintiff presents no direct evidence of racial
discrimination, the Court considers his claim under the McDonnell Douglas
R. Doc. 74-1 at 2.
R. Doc. 1 at 4 ¶ 43.
See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); Byers v. Dallas Morning News, Inc., 209 F.3d 419,
425 (5th Cir. 2000).
Plaintiff bears the initial burden to show a prima facie case of
discrimination. McDonnell Douglas, 411 U.S. at 802. To establish a prima
facie case, “an employee must demonstrate that [he] ‘(1) is a member of a
protected group; (2) was qualified for the position at issue; (3) was
discharged or suffered some adverse employment action by the employer;
and (4) was replaced by someone outside his protected group or was treated
less favorably than other similarly situated employees outside the protected
group.’” Morris v. Town of Independence, 827 F.3d 396, 400 (5th Cir. 2016)
(quoting Willis v. Cleco Corp., 749 F.3d 314, 319-20 (5th Cir. 2014)).
Plaintiff offers no evidence to indicate that he was replaced by someone
of a different race. Further, plaintiff acknowledges that he “does not have
direct evidence or classical prima facie fourth prong comparative
evidence.”51 But plaintiff contends that he can establish a prima facie case
through evidence that the employer failed to follow its own procedures,
offered inconsistent or changing explanations for his firing, and engaged in
R. Doc. 74 at 1.
racial discrimination within his five-man work crew.52
inconsistent explanations or failure to follow its own procedures are relevant
to the issue of pretext, not to the requirements of a prima facie case. See
Nasti v. CIBA Specialty Chem. Corp., 492 F.3d 589, 593-94 (5th Cir. 2007);
State v. New Palace Casino, LLC, 187 F. App’x 350, 358-59 (5th Cir. 2006);
Tyler v. Union Oil Co. of Ca., 304 F.3d 379, 395-96 (5th Cir. 2002).
The Fifth Circuit has made clear that evidence of pretext is not a
substitute for the requirement that a plaintiff first establish a prima facie case
by showing differential treatment of similarly situated employees. See Paske
v. Fitzgerald, 785 F.3d 977, 985, 985 n.8 (5th Cir. 2015) (rejecting argument
that plaintiff can satisfy fourth element of prima facie case by showing that
stated reasons for firing were pretextual); see also Williams v. Franciscan
Missionaries of Our Lady Health Sys., Inc., 689 F. App’x 374, 375 (5th Cir.
2017) (“[Plaintiff] is correct that a similarly situated employee who was not
terminated is not the only way to establish a prima facie case of
discrimination. He may also show that he was replaced by someone outside
of the protected class.”). Plaintiff’s argument that he can establish a prima
facie case through “other circumstances” suggesting pretext therefore fails.
The Court has had great difficulty understanding plaintiff’s
disorganized and rambling brief, and identifying what facts and arguments
plaintiff relies on to oppose summary judgment. As the Fifth Circuit has
explained, “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.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455,
458 (5th Cir. 1998) (internal citation and quotation marks omitted). The
Court has nevertheless attempted to identify valid arguments and factual
disputes within plaintiff’s submissions. Despite plaintiff’s statement that he
“does not have evidence of favorable treatment of a comparable employee,”53
his arguments regarding racial discrimination within his work crew could be
construed as an attempt to satisfy the fourth element of a prima facie case
through evidence that he was treated less favorably than similarly situated
To meet the “‘similarly situated employees’ requirement, ‘a plaintiff
must show that he was treated less favorably than others ‘under nearly
identical circumstances.’” Morris, 827 F.3d at 401. An employment action
is “taken under nearly identical circumstances when the employees being
compared held the same job or responsibilities, shared the same supervisor
R. Doc. 74 at 1.
or had their employment status determined by the same person, and have
essentially comparable violation histories.” Lee v. Kansas City S. Ry. Co.,
574 F.3d 253, 260 (5th Cir. 2009) (internal citations omitted). “If the
difference between the plaintiff’s conduct and that of those alleged to be
similarly situated accounts for the difference in treatment received from the
employer, the employees are not similarly situated for the purposes of an
employment discrimination analysis.” Id. at 260 (internal citation and
quotation marks omitted).
C. Proposed Comparators
The undisputed facts indicate that Kingsland made the decision to
terminate plaintiff’s employment after Kingsland was notified about
problems with the Chrome Weld and the Underground Weld within a few
days of each other, and heard that plaintiff was the welder on both these
jobs. 54 Plaintiff argues that he was treated less favorably than two white
employees, Travis and Hinton, 55 but neither of these individuals is similarly
situated to plaintiff.
R. Doc. 70-3 at 10-11 ¶¶ 59-62; R. Doc. 74-1 at 9-10 ¶¶ 59-62; R. Doc.
70-6 at 38 (Kingsland Depo. at 85).
R. Doc. 74 at 6.
Travis was a pipe foreman involved in both Chrome Weld errors.56 He
received a written reprimand because of the problems with the Chrome
Weld.57 Travis is not similarly situated to plaintiff because he is not a
welder, 58 and as a foreman, his job and responsibilities differed from those
of plaintiff. See Crosby v. Computer Science Corp., 470 F. App’x 307, 309
(5th Cir. 2012) (noting that plaintiff’s supervisor was not an appropriate
comparator); Merritt v. United Parcel Service, Inc., 321 F. App’x 410, 414
(5th Cir. 2009); Lee, 574 F.3d at 259-60. Moreover, Kingsland testified that
he did not consider discharging Travis because Travis was less responsible
for the problems with the Chrome Weld than other employees. 59 It is also
undisputed that Travis was not involved with the failure of the Underground
Hinton is a welder and his job responsibilities were therefore more
similar to those of plaintiff. But plaintiff cannot show that Hinton had a
comparable violation history. It is undisputed that Hinton used erroneous
filler material on the Chrome Weld, and that his work had to be cut out. 61
R. Doc. 70-5 at 18 (Travis Depo. at 18).
R. Doc. 70-3 at 11 ¶ 60; R. Doc. 74-1 at 10 ¶ 60; R. Doc. 70-5 at 18
(Travis Depo. at 61); R. Doc. 70-6 at 27 (Kingsland Depo. at 71).
R. Doc. 74-4 at 34 (Travis Depo. at 81).
R. Doc. 70-6 at 28, 36 (Kingsland Depo. at 72, 83).
R. Doc. 70-3 at 10 ¶ 58; R. Doc. 74-1 at 9 ¶ 58.
R. Doc. 70-3 at 4-5 ¶¶ 22-24; R. Doc. 74-1 at 5 ¶¶ 22-24.
Kingsland acknowledged that a welder could be subject to discipline for
using incorrect filler material and testified that he did not know why Hinton
was not disciplined.62 But Kingsland also testified that he was unaware that
Hinton was involved in the first failed attempt at the Chrome Weld. 63
Further, plaintiff admits that the cut out caused by Hinton’s use of incorrect
filler material required less work and expense than the second cut out after
plaintiff’s work on the Chrome Weld. 64 Hinton’s involvement in the failures
of the Chrome Weld is therefore not fully comparable to plaintiff’s record.
See Bryant v. Compass Group USA, Inc., 413 F.3d 471, 478 (5th Cir. 2005)
(finding that two employees accused of theft were not similarly situated when
plaintiff’s misconduct was potentially much more costly to the employer);
Lee, 574 F.3d at 261 (explaining that a comparable violation history “may
turn on the comparable seriousness of the offenses for which discipline was
Additionally, plaintiff fails to show that Hinton was involved in more
than one bad weld. Plaintiff asserts that Hinton failed one of his two
R. Doc. 74-2 at 12-13 (Kingsland Depo. at 41-42).
Id. at 33-34 (Kingsland Depo. at 80-81). Plaintiff argues that there is
a justifiable inference that Kingsland knew Hinton was the welder on the
first failed Chrome Weld because he was the superintendent. See R. Doc.
74 at 21. But this assertion is not supported by specific evidence.
R. Doc. 70-3 at 7-8 ¶ 42; R. Doc. 74-1 at 8 ¶ 42.
production welds and made mistakes on three other welds.65 But this
assertion is not supported by sufficient competent evidence to create a
genuine issue of fact. Plaintiff relies on the deposition testimony of Tirrell
Williams, a fellow welder who testified that he believed Hinton failed a
qualifying weld because he saw Hinton cutting out a weld.66 Williams further
stated that he later saw Hinton cutting out other bad welds, and that
Bloodsworth also observed Hinton cutting out a weld. 67 In response to this
testimony, defendant offers the sworn declaration of Alton Lennon
Williamson, who served as a pipe foreman on Hinton’s project.68 Williamson
avers that both Hinton’s qualifying welds passed inspection and that Hinton
was directed to grind out the failed qualifying welds of other applicants. 69
Williams’s testimony that he saw Hinton cutting out welds is consistent with
Williamson’s declaration. Williams was not a supervisor on the project or a
member of the quality control staff. 70 Williams’s assumption that Hinton
was cutting out his own welds, rather than the failed welds of others, is
speculative and does not create a genuine issue of fact.
R. Doc. 74 at 6.
R. Doc. 74-5 at 11-12 (Williams Depo. at 43-44).
Id. at 3-4, 12 (Williams Depo. at 11-12, 44).
R. Doc. 70-12.
Id. at 2.
R. Doc. 80-1 at 3 (Williams Depo. at 26).
Williams acknowledged that he did not personally observe Hinton’s
qualifying welds, but testified that he “heard them guys say he [Hinton] had
a spot” and “heard Payton [Travis] say it was one of his qualifiers.”71
Defendant objects to Williams’s testimony as hearsay and speculation. 72
Plaintiff has not identified a legal basis to admit Travis’s statement to
Williams regarding Hinton’s qualifying welds, and the Court finds this
statement inadmissible. The unrebutted evidence in the record indicates
that Williamson, not Travis, was the pipe foreman supervising Hinton’s
qualifying welds.73 Plaintiff has not pointed to evidence indicating that
Travis had personal knowledge of Hinton’s qualifying welds.
plaintiff shown that Travis’s statement was made within the scope of his
employment, rather than “in his capacity as wiseacre only.” Staheli v. Univ.
of Miss., 854 F.2d 121, 126-27 (5th Cir. 1988); see also Fairchild v. All
American Check Cashing, Inc., 815 F.3d 959, 966-67 (5th Cir. 2016)
R. Doc. 74-5 at 11-12 (Williams Depo. at 43-44). Williams further
testified that “I guess to keep his [Hinton’s] job they put him fitting.” Id. at
13. This assertion is speculative and irrelevant. Even if Hinton did change
jobs, the Court has no further information about the circumstances
surrounding this change of position or whether it constituted a demotion.
A change in job description is not evidence that Hinton failed his qualifying
welds or that he was treated differently than plaintiff under similar
R. Doc. 80 at 1, 8.
R. Doc. 70-12.
(explaining that a managerial employee’s statements were properly excluded
as hearsay when the employee was not involved in the decision at issue).
Accordingly, the Court finds that plaintiff’s assertions that Hinton
failed his qualifying welds and made errors on other welds are speculative
and unsupported by competent summary judgment evidence. See Douglass
v. United Serv. Auto Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (explaining
that “conclusory allegations, speculation, and unsubstantiated assertions are
inadequate to satisfy the nonmovant’s burden” on summary judgment). The
undisputed facts indicate that Hinton was involved in the first attempt at the
Chrome Weld, but that repairing this initial mistake was less costly than the
subsequent cut out after plaintiff’s work on the Chrome Weld. No competent
evidence demonstrates that Hinton was implicated in additional failed
welds. See Player v. Kansas City S. Ry. Co., 496 F. App’x 479, 482 (5th Cir.
2012) (finding that plaintiff’s disciplinary record was not comparable to that
of employees with fewer violations); Bouie v. Equistar Chem. LP,
188 F. App’x 233, 237 (5th Cir. 2006) (finding that white employee who
failed to comply with one safety protocol was not similarly situated to
plaintiff who failed to comply with two safety protocols).
Even if Hinton made mistakes on other welds, the Court has no
information to suggest that those errors were as costly as the problematic
welds that plaintiff was involved in. Nor is there evidence that Hinton’s
purported mistakes occurred within a comparably short time period as the
failures of the Chrome Weld and the Underground Weld within a few days of
each other. The Court therefore finds that Hinton’s employment history is
not sufficiently similar to plaintiff’s record to satisfy the fourth element of a
prima facie case.
Plaintiff also asserts that a second unnamed white welder failed a
production weld. 74 Plaintiff testified that he was told by other people on the
job that white welders made bad welds and were allowed to fix them. 75 But
plaintiff admits in his deposition that he has no direct knowledge of white
welders with bad welds.76 Williams similarly testified that there was another
white welder who had a bad production weld. 77
But, like Williams’s
allegations against Hinton, this assertion is based solely on what Williams
heard from others and on his observation that this unnamed welder was
fixing a weld. 78 As explained above, Williams’s hearsay testimony and
speculation are not competent summary judgment evidence. Moreover,
Williams acknowledged that he did not know of any additional bad welds by
R. Doc. 74 at 6.
R. Doc. 70-4 at 80 (Pl.’s Depo. at 129).
Id. at 81 (Pl.’s Depo. at 130).
R. Doc. 74-5 at 5-6 (Williams Depo. at 16-17).
Id. at 5 (Williams Depo. at 16).
this unnamed white welder.79 Defendant has offered evidence that both
white and non-white welders were terminated from the project for
substandard job performance between January and June of 2015.80
Accordingly, the Court finds that plaintiff has not offered competent
evidence that he was treated less favorably than similarly situated employees
outside his protected class.
D. Plaintiff’s Other Evidence
Plaintiff attempts to create issues of fact by arguing that he was not
actually responsible for the problems with the Chrome Weld and
Underground Weld. 81 Plaintiff asserts that the Chrome Weld failed because
of a lack of paperwork rather than a lack of preheating, and that the
Underground Weld may not have required reworking.82 But plaintiff admits
that both these welds had problems.
Plaintiff acknowledged that the
Underground Weld failed x-ray examination. 83 Plaintiff also admitted that
Id. at 6 (Williams Depo. at 17).
R. Doc. 70-7.
R. Doc. 74.
R. Doc. 70-4 at 70-71 (Pl.’s Depo. at 116-17). Plaintiff’s memorandum
in opposition to summary judgment conclusorily states that plaintiff
disputes that the Underground Weld failed an x-ray for lack of fusion. See
R. Doc. 74 at 17. But this statement is inconsistent with both plaintiff’s
deposition testimony and plaintiff’s declaration, which each acknowledge
that the Underground Weld failed x-ray examination. See R. Doc. 70-3 at
10 ¶ 53; R. Doc. 74-1 at 8-9 ¶¶ 44, 53. Further, Michael Knight, the quality
he did not check the prior welder’s work before beginning work on the
Underground Weld. 84
Further, it is undisputed that the Chrome Weld had to be cut out after
plaintiff worked on it. 85 Plaintiff asserts that the pipe was properly heated
and that the lack of pre-heat “was a problem invented to implicate plaintiff”
and to shift responsibility onto him for the failed weld out of “supervisor self
Even if the Court accepted plaintiff’s theory that his
supervisors blamed him for the weld’s failure to protect themselves, this is
not evidence that similarly situated employees of a different race received
more favorable treatment. See Bryant, 413 F.3d at 477 (noting lack of
evidence that alleged conspiracy by other employees was racially motivated).
Moreover, the Court finds no genuine dispute of fact that plaintiff
failed to follow proper procedures by admittedly not checking the
temperature of the pipe before starting work on the Chrome Weld. 87
control manager, testified that the Underground Weld was x-rayed and that
two of the three x-rays were bad. See R. Doc. 77 at 5 (Knight Depo. at 40).
Defendant has produced a copy of this x-ray report showing two rejections
for lack of fusion. See R. Doc. 75-2 at 1. Accordingly, the Court finds no
genuine issue of fact that the Underground Weld failed an x-ray
R. Doc. 70-3 at 8 ¶ 47; R. Doc. 74-1 at 9 ¶ 47.
R. Doc. 70-4 at 82 (Pl.’s Depo. at 133); R. Doc. 77 at 3 (Knight Depo.
R. Doc. 74 at 19-20.
R. Doc. 70-3 at 6 ¶ 35; R. Doc. 70-4 at 51-52; R. Doc. 74-1 at 6 ¶ 35.
Defendant’s welding procedure specification requires that temperature be
checked with a “temperature indicating crayons or an approved equal.”88
Wilson testified that he called a meeting with the welders, including plaintiff,
and reminded them to use temperature sticks.89 Plaintiff acknowledges that
he was at this meeting.90 Williams also testified that temperature sticks were
available and that he used them on chrome welds.91 Travis similarly testified
that a temperature stick is used to determine the proper temperature on
chrome welds, and that plaintiff made a mistake by not using one.92
When considering whether plaintiff and potential comparators have
similar violation histories, “the relevant perspective is that of the employer
R. Doc. 74-6 at 10. Plaintiff argues that defendant’s procedures also
allow the use of thermocouples. See 74-1 at 6 ¶ 34. But plaintiff points to
defendant’s “Field Fabrication and Erection of Pressure Vessels and Piping”
guidelines to support this argument rather than the the welding procedure
specifications. See R. Doc. 74-6 at 11-12. The “Field Fabrication” document
states that welding parameters are specified in the welding procedure
specifications. Id. Knight, the quality control manager, also testified that
the welding procedure specifications require the welder to check the
temperature. See R. Doc. 74-3 at 5-6 (Knight Depo. at 32-33). Plaintiff also
argues that his foremen, Travis and Wilson, “waived” the temperature stick
requirement because they saw him work without it. See R. Doc. 74 at 7. But
there is no indication in the record that either Travis or Wilson had the
authority to waive this requirement.
R. Doc. 74-5 at 21 (Wilson Depo. at 35).
R. Doc. 74-1 at 4, 6 ¶¶ 19, 28.
R. Doc. 80-1 at 4, 6 (Williams Depo. at 28, 63).
R. Doc. 70-5 at 10 (Travis Depo. at 34); R. Doc. 74-4 at 4 (Travis
Depo. at 18).
at the time of the adverse employment decision.” Lee, 574 F.3d at 260 n.27
(quoting Perez v. Tx. Dept. of Crim. Justice, 395 F.3d 206, 210 (5th Cir.
2004)); see also Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir.
2001) (finding that proposed comparators were not similarly situated in part
because supervisors were not aware of their alleged violations). Kingsland
testified that he was informed by quality control staff that the Chrome Weld
had not been preheated. 93 Kingsland further testified that he was told by
Bloodsworth that the Underground Weld was bad.94 Kingsland’s unrebutted
testimony is that he did not intend to terminate plaintiff for the Chrome Weld
until he heard about the Underground Weld. 95
Regardless whether plaintiff was ultimately most responsible for the
problems with the Chrome Weld and the Underground Weld, it is
undisputed that Kingsland believed that plaintiff was involved in both bad
welds within a few days of each other when Kingsland made the decision to
terminate his employment.96 See Morris, 827 F.3d at 401-02 (finding that
plaintiff was not similarly situated to proposed comparator in part because
employer received verbal complaints about plaintiff’s performance, even
R. Doc. 70-6 at 12-13 (Kingsland Depo. at 51-52).
Id. at 37 (Kingsland Depo. at 84).
Id. at 36-38 (Kingsland Depo. at 83-85).
Id.; R. Doc. 70-3 at 10-11 ¶¶ 59-62; R. Doc. 74-1 at 9-10 ¶¶ 59-62.
though these complaints were not documented). Plaintiff has not shown that
another welder of a different race was similarly associated with two faulty
welds within a short period of time.
To the extent that plaintiff argues that Bloodsworth, the night shift
general foreman, influenced Kingsland’s discharge decision, plaintiff has not
presented competent evidence that Bloodsworth treated welders of a
different race more favorably than him.
Plaintiff relies on Williams’s
testimony that Hinton and other white welders failed their qualifying welds
and that Williams assumed Bloodsworth was aware of these failures.97 As
explained above, Williams’s speculation regarding what Bloodsworth knew
is not competent summary judgment evidence.
argument that Bloodsworth “set him up” by telling him that the
Underground Weld would not be x-rayed 98 is not evidence that Bloodsworth
treated white employees more favorably. Accordingly, plaintiff has not
demonstrated that similarly situated employees were treated more favorably
than him “under nearly identical circumstances.” Morris, 827 F.3d at 401.
Because plaintiff fails to satisfy the fourth element of a prima facie case,
the Court need not determine whether plaintiff was qualified for his position.
R. Doc. 74 at 6; R. Doc. 74-5 at 3-6 (Williams Depo. at 11-12, 16-17).
R. Doc. 74 at 8.
Plaintiff has not established a prima facie case of racial discrimination and
defendant is entitled summary judgment.
For the foregoing reasons, defendant’s motion for summary judgment
is GRANTED. Plaintiff’s complaint is DISMISSED.
New Orleans, Louisiana, this _____ day of November, 2017.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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