Gibson v. Leson Chevrolet Company, Inc.
ORDER & REASONS: granting in part and denying in part 19 Defendant's Motion for Summary Judgment as set forth in document; FURTHER ORDERED that Plaintiff's retaliation claim is DISMISSED. Signed by Judge Carl Barbier on 3/29/17. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LESON CHEVROLET COMPANY,
SECTION: “J” (3)
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc.
opposition thereto filed by Terry Gibson (“Plaintiff”) (Rec. Doc.
25), a reply filed by Defendant (Rec. Doc. 26), and a sur-reply
(Rec. Doc. 30) filed by Plaintiff.
Having considered the motion
and legal memoranda, the record, and the applicable law, the Court
finds that the motion should be GRANTED in part and DENIED in part.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff, an African American male, and Defendant, a company that
operates a car dealership.
Plaintiff began working for Defendant
as a sales representative in January 2012.
(Rec. Doc. 1 at 2.)
He alleges that during the course of his employment, management at
the dealership exhibited preferential treatment to Caucasian sales
For example, Plaintiff alleges that Defendant
prohibited African American representatives from congregating on
representatives to do so.
(Rec. Doc. 1 at 2.)
2012, Plaintiff resigned his employment.
On November 24,
(Rec. Doc. 19-2 at 2.)
treatment that he and other African American employees received on
(Rec. Doc. 25 at 2.)
On May 6, 2013, Plaintiff returned to work for Defendant as
a sales representative.
(Rec. Doc. 19-2 at 2.)
that during this second stint of employment he was routinely passed
over for promotions.
(See Rec. Doc. 1 at 2-3.)
On November 6,
2014, after being passed over for a promotion to the finance
Defendant’s general sales manager.
Plaintiff avers that he told
Brenner that he believed Defendant failed to promote him because
of his African American race and informed Brenner that he was going
to resign his employment.
(Rec. Doc. 1 at 3.)
That same day,
Brenner and Lisa Rebowe, the dealer and owner of the dealership,
decided to promote Plaintiff to the finance manager position, and
Plaintiff accepted the position.
(Rec. Doc. 25 at 3.)
manager was excellent and that he never received any reprimand
from his supervisors, either written or otherwise.
(Rec. Doc. 1
promotion, Plaintiff failed to perform duties that were expected
of finance managers.
(Rec. Doc. 19-1 at 3.)
Defendant asserts that on several occasions during Plaintiff’s
tenure as finance manager, the finance companies charged back
amounts on sales handled by Plaintiff.
Id. at 3-4.
Defendant, these charge backs were often the result of mistakes
made by Plaintiff.
Id. at 4.
Defendant also asserts that
Plaintiff would periodically re-allocate the amount of revenue
from the sale of a vehicle in a way that would benefit Plaintiff,
authority to shift the revenue in this way.
Defendant asserts that in January 2015, Brenner verbally
instructed Plaintiff to stop re-allocating the revenue for the
sale of vehicles, but that Plaintiff continued this practice.
(Rec. Doc. 19-1 at 5.)
Defendant further contends that because
the verbal counseling seemed to be ineffective, Brenner prepared
a written warning notice.
(Rec. Doc. 19-1 at 5; Rec. Doc. 19-2 at
It is undisputed that Plaintiff did not sign the warning
(Rec. Doc. 19-2 at 4.)
The notice, which is dated January
22, 2015, includes a handwritten notation stating that “Employee
refused to sign.”
(Rec. Doc. 19-8.)
Although the “Supervisor
Defendant describes this practice as “reducing the amount of revenue
[Defendant] had negotiated to receive on the front end of the deal (i.e., the
amount the customer agreed to pay), to enable [Plaintiff] to sell a customer a
product on the back end of the deal.” (Rec. Doc. 19-1 at 4.) Defendant argues
that shifting revenue from the front end of the deal to the back end of the
deal is not preferable because not all revenue made from sales at the back end
of the deal is secured by the vehicle. Id.
Signature” line is signed by Brenner, the “Employee Signature”
supervision or witness signature” is also blank.
Plaintiff “categorically denie[s] receiving any verbal or
written counseling during his entire tenure as finance manager,
including any such written warning from Brenner.”
(Rec. Doc. 25
Defendant, on the other hand, contends that Brenner
presented the notice to Plaintiff, who refused to sign it.
Doc. 19-1 at 5.)
Defendant further contends that Plaintiff’s
refusal to sign the warning notice resulted in Brenner and Rebowe
determining that Plaintiff was insubordinate. Id. at 4. Defendant
argues that at that time, Brenner and Rebowe decided to replace
Plaintiff as finance manager and began searching for another
Id. at 5-6.
In May 2015, Defendant hired Ronea
Wood, a Caucasian female, to replace Plaintiff as finance manager.
Id. at 4.
Defendant terminated Plaintiff’s employment on May 5,
2015, after hiring Ronea Wood.
(Rec. Doc. 19-1 at 6.)
On or about August 22, 2015, Plaintiff filed a Charge of
Discrimination with the Equal Employment Opportunity Commission
(Rec. Doc. 1 at 2.)
The EEOC issued a Right to Sue on
or around February 24, 2016, and Plaintiff filed this lawsuit on
April 6, 2016.
The complaint alleges that Defendant
intentionally discriminated against him on the basis of race and
retaliated against him in connection with the termination of his
employment in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), as amended, 42 U.S.C. 2000e et seq., 42 U.S.C.
§ 1981, and the Louisiana Employment Discrimination Law.
On February 14, 2017, Defendant filed the instant motion
for summary judgment which is now before the Court.
Defendant argues that it is entitled to summary judgment on
Plaintiff’s claims of race discrimination and retaliation.
Doc. 19-1.) 2
Defendant argues that it terminated Plaintiff’s
employment for insubordination after Plaintiff refused to sign the
written disciplinary notice on January 22, 2015. Defendant further
argues that this is a legitimate, nondiscriminatory reason for the
termination, and that Plaintiff has failed to demonstrate that it
retaliation claim should be dismissed because Plaintiff cannot
prove a causal connection between his complaint of discrimination
Defendant’s motion includes other arguments in addition to those discussed in
the body of this Order and Reasons.
For instance, Defendant argues that
Plaintiff’s failure-to-promote claims are time-barred under all three statutes.
Id. at 7.
Defendant also asserts that certain allegations in Plaintiff’s
complaint are not “adverse actions” within the meaning of the law and should
therefore be dismissed. Plaintiff does not dispute either point, but clarifies
that he is not bringing separate claims related to allegations that Defendant
failed to promote him or provide sufficient sales leads. (Rec. Doc. 25 at 1.)
Instead, Plaintiff states that he brings his claims in connection with the
termination of his employment in May 2015, and that “these previous acts of
discrimination . . . are intended for use as background evidence in support of
Plaintiff’s claims.” (Rec. Doc. 25-1 at 1 n.1); see AMTRAK v. Morgan, 536 U.S.
101, 113 (2002). Because Defendant’s arguments discussed in this note are not
controverted, they bear no further discussion.
on November 6, 2014 and his termination nearly six months later.
discrimination, Defendant asserts that it is still entitled to
summary judgment because it had a legitimate, non-discriminatory
reason for terminating him.
In opposition, Plaintiff argues that Defendant’s proffered
reason for Plaintiff’s termination is false, unworthy of credence,
Plaintiff argues that he never received any
performance while he was finance manager.
Thus, he argues that he
terminated his employment because he complained to Brenner about
racial discrimination at the workplace.
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R.
Civ. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). When assessing whether a dispute as to any
material fact exists, a court considers “all of the evidence in
the record but refrains from making credibility determinations or
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All
reasonable inferences are drawn in favor of the nonmoving party,
allegations or unsubstantiated assertions. Little, 37 F.3d at
1075. A court ultimately must be satisfied that “a reasonable jury
could not return a verdict for the nonmoving party.” Delta, 530
F.3d at 399.
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). The nonmoving party can then defeat the motion by either
countering with sufficient evidence of its own, 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. at 1265.
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 merely 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 325. 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. at 325; Little, 37 F.3d
The analysis applied to claims under Title VII is
also used for claims of racial discrimination in employment cases
under 42 U.S.C. § 1981 and the Louisiana Employment Discrimination
Decorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007).
Accordingly, the same test will determine the sufficiency of
Plaintiff’s distinct discrimination claims.
Title VII prohibits an employer from discharging an employee
because of his race.
42 U.S.C. § 2000e-2.
“The Title VII inquiry
is whether the defendant intentionally discriminated against the
Roberson v. Alltel Info. Servs., 373 F.3d 647, 651
(5th Cir. 2004) (internal citations omitted).
The plaintiff can
establish intentional discrimination by presenting either direct
or circumstantial evidence.
Alvarado v. Texas Rangers, 492 F.3d
discrimination is that based on inference and not on personal
knowledge or observation.”
Heinsohn v. Carabin & Shaw, P.C., 832
F.3d 224, 235 n.41 (5th Cir. 2016) (internal citations omitted).
The employee's burden of proof does not change based on the type
Id. at 235.
Here, Plaintiff only presented
circumstantial evidence of racial discrimination.
circumstantial evidence, the Court employs the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802–04) (1973).
McCoy v. City of Shreveport, 492 F.3d
551, 556 (5th Cir. 2007).
The first step in this framework
Thomas v. Johnson, 788 F.3d 177, 179 (5th Cir.
Plaintiff must demonstrate that:
(1) he is a member of a protected class, (2) he was
qualified for the position at issue, (3) he was the
subject of an adverse employment action, and (4) he was
treated less favorably because of his membership in that
protected class than were other similarly situated
employees who were not members of the protected class,
under nearly identical circumstances.
Paske v. Fitzgerald, 785 F.3d 977, 985 (5th Cir. 2015) (internal
citation omitted). Here, Defendant does not dispute that Plaintiff
produced evidence sufficient to prove each of the elements of prima
Plaintiff has established that (1) he
belonged to a protected class because he was African American, (2)
he was qualified for the finance manager position, (3) Defendant
took an adverse employment action against him by terminating him,
and (4) Defendant treated employees who were not African American
more favorably because it replaced him with a Caucasian employee.
Once the plaintiff successfully establishes a prima facie
case, the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the termination.
Goudeau v. Natl.
Oilwell Varco, L.P., 793 F.3d 470, 474 (5th Cir. 2015).
introduction of admissible evidence, the reasons for [the adverse
Heinsohn, 832 F.3d at 236 (quoting Texas
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)).
step does not involve a credibility assessment.
Defendant produced deposition testimony by Brenner
stating that Defendant terminated Plaintiff because he refused to
Therefore the analysis proceeds to the third step.
At the third step, the burden shifts back to the employee,
who must produce evidence, or rely on evidence already produced,
that contests or refutes the employer’s evidence of a legitimate,
nondiscriminatory reason. Id. at 236-37. A plaintiff can establish
that the employer’s purported reason is pretextual by either by
producing “evidence of disparate treatment or by showing that the
Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).
To prove that the explanation is false or unworthy of credence,
the employee must prove that the proffered explanation is not the
real reason for the adverse employment action.
demonstrating that the employer's explanation is false or unworthy
of credence, taken together with the plaintiff's prima facie case,
is likely to support an inference of discrimination even without
further evidence of defendant's true motive.”
Plaintiff argues that there is a material question of fact as
to whether the evidence provided by Defendant adequately supports
its purported reason for termination.
Generally, an employer will
Heinsohn, 832 F.3d at 237. Other than the unsigned written warning
notice from January 22, 2015 and deposition testimony by Brenner
that Plaintiff refused to sign it, Defendant produced very little
other evidence to support the argument that it terminated Plaintiff
3 Defendant also points to the separation notice that an employee for Defendant
submitted on May 11, 2015, nearly a week after Plaintiff was fired. (Rec. Doc.
The separation notice states that the reason for separation is
purported refusal to sign the written warning that caused his
supervisors to deem him insubordinate and make the immediate
decision to terminate him. 4
Plaintiff uses his deposition testimony denying that he ever
received a verbal or written warning to call into question the
veracity of Defendant’s purported nondiscriminatory reason for
testimony is self-serving and insufficient to create a factual
However, Defendant’s only strong evidence of Plaintiff’s
The Court cannot reject Plaintiff’s statements as
self-serving but accept Defendant’s.
This approach would be
Plaintiff draws the Court’s attention to Defendant’s EEOC position statement
(See Rec. Doc. 25-9), and argues that the reasons for terminating Plaintiff
cited in the position statement differ from the reasons provided in this motion
for summary judgment.
The Court acknowledges that although the position
statement provides essentially the same factual history as the motion for
summary judgment and mentions the word “insubordination,” the position statement
itself provides a different theory for the termination. It states: “[Defendant]
terminated [Plaintiff] because he abused his position as Finance Manager to
benefit himself to the detriment of the sales force and the company and refused
to change his behavior after receiving verbal and written warnings.”
Doc. 25-5 at 8.) Though related to the reasons cited for termination in the
motion for summary judgment, the reasons for termination cited in the position
statement suggests a lack of consistency.
See Burton v. Freescale
Semiconductor, Inc., 798 F.3d 222, 237 (5th Cir. 2015) (“We have  found an
employer's rationale suspect where it had not remained the same between the
time of the EEOC's investigation and the ultimate litigation.”) (internal
“inconsistent with fundamental rules governing summary judgment.”
Heinsohn, 832 F.3d at 245. “By choosing which testimony to credit
and which to discard, ‘[a] court improperly ‘weigh[s] the evidence’
and resolve[s] disputed issues in favor of the moving party.”
(quoting Burton v. Freescale Semiconductor, Inc., 798 F.3d 222,
credibility determinations at the summary judgment stage.
Instead, the Court “must disregard all evidence favorable to the
moving party that the [finder of fact] is not required to believe.”
(quoting Chambers v. Sears Roebuck & Co., 428 F. App’x 400,
reasons, Plaintiff has produced sufficient evidence at the summary
judgment stage to create a genuine issue of material fact as to
Plaintiff’s second claim is that Defendant retaliated against
In particular, Plaintiff identifies the complaint
he made to Brenner on November 6, 2014 about being passed over for
promotions as the employee action that led to the retaliation.
mentioned above, Plaintiff was offered the promotion for which he
was initially passed over on the same day he made the complaint.
And it was not until May 5, 2015 that Plaintiff’s employment was
Under Title VII it is unlawful for employers to discriminate
against employees who have “opposed any practice made an unlawful
employment practice by this subchapter . . . .”
42 U.S.C. § 2000e-
A retaliation claim “require[s] proof that the desire to
retaliate was the but-for cause of the challenged employment
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517,
McDonnell Douglas burden shifting framework.
Daniel v. Universal
ENSCO, Inc., 507 F. App’x, 434, 437 (5th Cir. 2013).
bringing a Title VII retaliation claim must establish a prima facie
case by showing that (1) the plaintiff engaged in a Title VII
protected activity; (2) the plaintiff was subjected to adverse
connected to the protected activity.
Haire v. Bd. of Sup'rs of
Louisiana State Univ. Agric. & Mech. Coll., 719 F.3d 356, 367 (5th
Defendant contends that Plaintiff has failed to establish any
causal connection between the complaint of race discrimination and
The causal link can be demonstrated in two ways:
circumstantial evidence that creates a rebuttable presumption of
retaliatory motive. Thomas v. Atmos Energy Corp., 223 F. App’x
369, 377 (5th Cir. 2007).
“Without direct evidence, the causation
element can be difficult to prove.”
Pryor v. MD Anderson Cancer
Ctr., 495 F. App’x 544, 547 (5th Cir. 2012).
The Court considers
three factors in determining whether the plaintiff has made a prima
facie showing of causation: “(1) the employee's past disciplinary
record, (2) whether the employer followed its typical policy and
procedures in terminating the employee, and (3) the temporal
proximity between the employee's conduct and termination.”
v. Resolution Trust Corp., 33 F.3d 498, 508 (5th Cir. 1994).
The most important causation factor in this case is the lack
of temporal proximity between the employee’s conduct and his
Six months lapsed between Plaintiff’s complaint of
discrimination in November 2014 and his ultimate termination in
May 2015. 5
The Fifth Circuit has noted that district courts in
this circuit have allowed an inference of causation when as many
as four months elapsed, see Evans v. Houston, 246 F.3d 344, 354
(5th Cir. 2001), but also suggested that such a period may be too
long to allow for such an inference.
Thomas v. Atmos Energy Corp.,
223 F. App'x 369, 378 (5th Cir. 2007) (“The Supreme Court, however,
Plaintiff notes that in Brenner’s deposition he testified that he made the
decision to terminate Plaintiff on January 22, 2015. Thus, Plaintiff argues
that only three months commenced between Plaintiff’s action and Brenner’s
decision to terminate Plaintiff’s employment. If the Court were to adopt this
position, it would confirm Defendant’s argument that he did not terminate
Plaintiff as a retaliatory action, but because of the events that transpired on
that day regarding the written warning notice.
has cited approvingly other circuit court cases that found three
causation.”) (citing Clark County Sch. Dist. v. Breeden, 532 U.S.
268, 273-74 (2001)).
A long interval between the employee’s
conduct and the termination “tend[s] to undermine the inference
that the discharge was retaliatory.” Minnesota Ass'n of Nurse
Anesthetists v. Unity Hosp., 59 F.3d 80, 83 (8th Cir. 1995).
The other causation factors are in dispute.
However, “[c]onclusions [of retaliation] drawn from a
lack of suspicious timing are less compelling than those drawn
from the existence of suspicious timing.”
DeHart v. Baker Hughes
Oilfield Operations, Inc., 214 F. App'x 437, 442–43 (5th Cir.
It is implausible that a termination occurring six months
promotion practices has any causal retaliatory connection.
Plaintiff cannot make a prima facie claim of causation, and the
motion for summary judgment is granted on this claim.
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment (Rec. Doc. 19) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Plaintiff’s retaliation claim is
New Orleans, Louisiana this 29th Day of March, 2017.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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