Kimbrough v. Textron Marine & Land Systems

Filing 30

ORDER AND REASONS granting 16 Motion for Summary Judgment. Plaintiff's complaint is DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 4/30/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARCUS KIMBROUGH
VERSUS

CIVIL ACTION
NO. 17-5722

TEXTRON SYSTEMS MARINE &
LAND SYSTEMS

SECTION “R” (4)

ORDER AND REASONS
Defendant Textron Systems Marine & Land Systems moves for
summary judgment. 1 For the following reasons, the Court grants the motion.

I.

BACKGROUND
Plaintiff Marcus Kimbrough was hired by defendant Textron Systems

Marine & Land Systems (Textron) as a senior welder in October 2016.2 On
Friday, October 28, 2016, plaintiff overheard a racist remark by Jimmy
Corley. 3 Corley was a Textron supervisor, though he did not supervise
plaintiff. 4 Corley was talking to two other employees about a work event and
told them “to hurry up and get it before all these black mother-fuckers eat all

R. Doc. 16.
R. Doc. 1 at 2 ¶ 8. Textron Systems Marine & Land Systems is a division
of Textron, Inc. Id. at 1 ¶ 3.
3
R. Doc. 23-1 at 9; see also R. Doc. 16-4 at 2.
4
R. Doc. 23-1 at 7.
1
1

2

the pizza.”5 Corley had not seen plaintiff, who is black, when he made this
remark. 6
Plaintiff immediately reported Corley’s remark to Sam Galloway,
plaintiff’s supervisor. 7 As the day progressed, according to plaintiff, Corley
and other employees found out about plaintiff’s complaint. 8 At some point,
Corley allegedly told plaintiff—who was underneath a truck—to watch out so
that nothing would fall on him. 9 Ten minutes later, according to plaintiff, a
crowbar fell and injured his leg.10 Corley also allegedly stared down plaintiff
that day.11
Plaintiff complains of several alleged acts of harassment that occurred
on the following Monday, October 31.

First, Galloway’s boss allegedly

followed plaintiff to the snack machine and to the bathroom, where he
peeked at plaintiff through a hole in the stall.12 Second, a coworker allegedly
told plaintiff that other coworkers were demeaning plaintiff—such as by
stating that “he’s a clown, he’s not a man”—for reporting Corley’s racist

5
6
7
8
9
10
11
12

Id.
Id.
Id. at 5, 10.
Id. at 14-15.
Id. at 19.
Id. at 17-19.
Id. at 17.
Id. at 23-24, 70.
2

remark.13 Third, upper-level managers whom plaintiff had not seen before
were allegedly at the Textron facility and stared at plaintiff. 14

Fourth,

Galloway allegedly told plaintiff to let a white employee use plaintiff’s
welding machine, even though there was another available welding machine
nearby.15 Galloway also allegedly raised his voice and told plaintiff to clean
up his area. 16 According to Katherine Lishman, a Textron human resources
employee at the time, Corley was suspended on October 28 and terminated
the following week. 17 Plaintiff did not return to work after October 31, and
formally resigned his employment on November 3. 18
Plaintiff filed a charge of racial discrimination and retaliation with the
EEOC on November 1, 2016. 19 After receiving his right to sue letter, plaintiff
filed suit on June 11, 2017. Plaintiff asserts claims of racial discrimination,
racially hostile work environment, and retaliation in violation of Title VII,
and intentional infliction of emotional distress. Defendant now moves for
summary judgment on plaintiff’s claims. 20

Id. at 25.
Id. at 23, 27, 80.
15
Id. at 29-31. Plaintiff regained use of his welding machine after thirty
minutes. Id. at 30-31.
16
Id. at 32.
17
R. Doc. 16-4 at 3-4.
18
Id. at 5.
19
R. Doc. 1 at 10.
20
R. Doc. 16.
3
13

14

II.

LEGAL STANDARD
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. A dispute about a material fact is genuine “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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
4

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 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. 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.; 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)).

5

III. DISCUSSION
A.

Hostile Work Environment

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). Title VII is violated “[w]hen the workplace is permeated
with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.” Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993) (citations and internal quotation marks omitted).
The Supreme Court has distinguished between cases in which a hostile
work environment is created by the plaintiff’s coworkers and cases in which
the hostile work environment is created by the plaintiff’s supervisors. See
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998). A prima facie case of a hostile work
environment by coworkers requires proof that the plaintiff
(1) belongs to a protected group; (2) was subjected to unwelcome
harassment; (3) the harassment complained of was based on
race; (4) the harassment complained of affected a term,
condition, or privilege of employment; [and] (5) the employer
knew or should have known of the harassment in question and
failed to take prompt remedial action.
6

Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012)
(quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). When
the plaintiff’s supervisors are responsible, the plaintiff need not satisfy the
fifth element. In other words, the employer can be held vicariously liable for
the supervisors’ actions without any showing that the employer was
personally negligent. See Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir.
1999). But an employer may avoid vicarious liability in such a case if it can
prove “(a) that [it] exercised reasonable care to prevent and correct promptly
any . . . harassing behavior, and (b) that the plaintiff employee unreasonably
failed to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S.
at 807.
Title VII prohibits harassment that is “sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an abusive
working environment.” EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 452
(5th Cir. 2013) (internal quotation marks and citation omitted).

The

harassment must be “both objectively and subjectively abusive.” Hockman
v. Westward Commc’ns, LLC, 407 F.3d 317, 325 (5th Cir. 2004).

In

determining whether harassment is objectively so severe or pervasive that it
alters the conditions of the plaintiff’s employment, courts look to the “totality
7

of circumstances,” including “the frequency of the conduct, the severity of
the conduct, the degree to which the conduct is physically threatening or
humiliating, and the degree to which the conduct unreasonably interferes
with an employee’s work performance.” Weller v. Citation Oil & Gas Corp.,
84 F.3d 191, 194 (5th Cir. 1996). But “[t]he harassment must consist of more
than ‘simple teasing, offhand comments, and isolated incidents (unless
extremely serious).’” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396,
401 (5th Cir. 2013) (quoting Faragher, 524 U.S. at 788).
Plaintiff’s hostile work environment claim is based on several distinct
acts of alleged harassment: Corley’s racist remark; Corley’s warning to watch
out for falling objects, followed by the crowbar incident; stalking and
excessive monitoring by upper-level Textron managers; demeaning
statements about plaintiff by white coworkers; Galloway’s instruction to let
a white coworker use plaintiff’s welding machine for thirty minutes; and
Galloway’s excessive criticism of plaintiff’s workspace. 21 These acts all took
place on either Friday, October 28 or Monday, October 31, 2016. The acts of
Galloway and upper-level managers were acts by supervisors, while Corley’s
actions, the crowbar incident, and the demeaning statements involved
coworkers. Although Corley was a Textron supervisor, he never supervised

21

See R. Doc. 23 at 8-11.
8

plaintiff.

22

See Faragher, 524 U.S. at 807 (“An employer is subject to

vicarious liability to a victimized employee for an actionable hostile
environment created by a supervisor with immediate (or successively
higher) authority over the employee.” (emphasis added)).
Plaintiff also points to harassment experienced by another black
employee at Textron, LaVell Lane.

Lane testified in a deposition that

Galloway and Corley both used racial slurs, that Textron supervisors
excessively monitored him and other black employees, that Galloway
excessively criticized him, and that racial epithets were scrawled on a
bathroom stall and a toolbox at defendant’s facility.23 Defendant argues that
this evidence is irrelevant to plaintiff’s claim. But a plaintiff may be “allowed
to introduce evidence of discrimination of others,” at least “for some
purposes.” Hernandez, 670 F.3d at 653. For example, the Fifth Circuit has
held that evidence of harassment experienced by other members of the
plaintiff’s protected group is relevant to show a hostile work environment.
Id. (noting the court’s prior holding that “in the context of sex
discrimination[,] . . . harassment of women other than the plaintiff is relevant

22
23

See R. Doc. 23-1 at 7.
R. Doc. 23-6 at 14, 23-26, 28, 30.
9

to a hostile work environment claim” (citing Waltman v. Int’l Paper Co., 875
F.2d 468, 477-78 (5th Cir. 1989)).
Of the allegedly harassing acts experienced by plaintiff, the most
serious is the crowbar incident. Plaintiff characterizes Corley’s warning to
watch out for falling objects as a threat, and suggests that he was deliberately
hit by the crowbar in retaliation for reporting Corley’s racist comment.24
Plaintiff also points to Corley’s “staring [him] down.”25 Such physically
threatening conduct may be sufficiently severe to satisfy the fourth element
of a hostile work environment claim. See Weller, 84 F.3d at 194.
But plaintiff fails to raise a genuine dispute as to whether the crowbar
incident actually constituted harassment based on race. Plaintiff relies on
two inferences: (1) plaintiff was in fact deliberately hit by the crowbar, i.e., it
was not an accident; and (2) the person who deliberately caused the crowbar
to hit plaintiff intended to retaliate for plaintiff’s complaint against Corley.
If both inferences were plausible, then the crowbar incident could be
sufficiently imbued with “racial character or purpose” to satisfy the third
element of plaintiff’s hostile work environment claim. Watkins v. Tex. Dep’t
of Criminal Justice, 269 F. App’x 457, 464 (5th Cir. 2008) (quoting Hardin

24
25

R. Doc. 23-1 at 19.
Id. at 17.
10

v. S.C. Johnson & Son, Inc., 167 F.3d 340, 345 (7th Cir. 1999)). But both
inferences lack evidentiary support.

Clay Adkins, a Textron employee

supervised by Corley, stated in an affidavit that he was working on the upper
level of a work station on October 28 when he set down his crowbar. 26 The
crowbar fell through a hole in the floor to the lower level, where it hit
plaintiff. 27 According to Adkins, his crowbar fell accidentally. 28 Adkins also
stated that he was unaware of plaintiff’s complaint when the crowbar fell. 29
According to Lishman, Textron conducted an internal investigation of the
crowbar incident and found both that it was an accident and that at the time,
no one other than Galloway knew about plaintiff’s complaint against
Corley. 30
The only evidence suggesting that the crowbar incident was no
accident is plaintiff’s own testimony.31 Plaintiff testified in a deposition that
he believed the crowbar incident was related to his earlier complaint against
Corley because Corley tapped him on his shoulder and warned him about
falling objects ten minutes before the crowbar fell, and because plaintiff was

26
27
28
29
30
31

R. Doc. 16-7 at 3.
Id.
Id.
Id.
R. Doc. 16-4 at 5.
R. Doc. 23-1 at 19.
11

underneath, rather than to the side of, the truck.32 Plaintiff fails to explain
the relevance of his location underneath the truck, and fails to present any
evidence suggesting that Corley, or someone acting in concert with Corley,
deliberately dropped the crowbar. Indeed, plaintiff stated in his deposition
that he did not know who dropped the crowbar, or how it happened. 33
Plaintiff further stated that, to his knowledge, the person who dropped the
crowbar did not know about plaintiff’s complaint against Corley. 34 Plaintiff
asserts that Corley knew about the complaint when Corley warned plaintiff
to watch out for falling objects because Corley had been looking at plaintiff
that day.35 Without more, however, this scintilla of evidence does not
support the reasonable inference that Corley knew about plaintiff’s
complaint at that time. Thus, plaintiff’s assertion that Corley’s warning and
the crowbar incident were related to his earlier complaint against Corley is
mere speculation, and cannot support his hostile work environment claim.
See McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012) (“Summary
judgment may not be thwarted by conclusional allegations, unsupported
assertions, or presentation of only a scintilla of evidence.”); Byers v. Dall.

32
33
34
35

Id.
R. Doc. __ at 4.
Id. at 6.
Id. at 17.
12

Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000) (noting that a
plaintiff’s “subjective belief” that he was discriminated against is not
sufficient evidence of discriminatory intent).
The other conduct of which plaintiff complains fails to raise a genuine
dispute as to whether plaintiff experienced a hostile work environment. Each
alleged act was relatively mild. Corley’s remark, though obviously offensive,
was an offhand comment that was not directed at plaintiff. 36 See Royal, 736
F.3d at 401. The allegedly demeaning statements by plaintiff’s coworkers
and Galloway’s criticism of the cleanliness of plaintiff’s workspace did not
rise above “the ordinary tribulations of the workplace” tolerated by Title
VII.37 Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 331 (5th Cir. 2009)
(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006));

Additionally, defendant promptly remedied Corley’s racist remark
(and, by extension, his warning to watch out for falling objects) by
suspending Corley on October 28 and terminating him the following week.
“Prompt remedial action must be reasonably calculated to end the
harassment.” Skidmore v. Precision Printing & Pkg., Inc., 188 F.3d 606, 615
(5th Cir. 1999) (internal quotation marks and citation omitted). Clearly,
Corley’s immediate suspension and subsequent termination were reasonably
calculated to end his alleged harassment of plaintiff.
37
Moreover, the only evidence of the allegedly demeaning statements is
plaintiff’s own testimony. But plaintiff did not actually hear these
statements. Instead, he learned of them from another welder, who allegedly
overheard the statements. R. Doc. 23-1 at 25. Plaintiff did not internally
complain about his coworkers’ demeaning statements before his resignation.
Nor is there any other evidence that defendant knew or should have known
of these statements.
13
36

see also Brown v. Liberty Mut. Grp., Inc., 616 F. App’x 654, 657 (5th Cir.
2015) (noting that “job-related criticisms . . . are unlikely to support a hostile
work environment claim”). Additionally, there is no indication that Galloway
acted outside his managerial discretion in instructing plaintiff to permit a
white coworker to use plaintiff’s welding machine. Nor did this act severely
interfere with plaintiff’s work: plaintiff regained use of his welding machine
in thirty minutes. Finally, there is no indication that plaintiff was physically
threatened by upper-level managers’ staring at and following him. See
Mendoza v. Borden, Inc., 195 F.3d 1238, 1249 (11th Cir. 1999) (en banc)
(holding that non-threatening staring and following do not create a hostile
work environment); see also Wilkinson v. Potter, 236 F. App’x 892, 893 (5th
Cir. 2007) (finding that “short, almost daily periods where [coworker] stared
at [plaintiff]” did not create hostile work environment). That these incidents
all occurred on one day suggests that the harassment experienced by plaintiff
was not pervasive. Cf. Lauderdale v. Tex. Dep’t of Criminal Justice, 512 F.3d
157, 164 (5th Cir. 2007) (finding that supervisor’s harassment was pervasive
because he called plaintiff “ten to fifteen times a night for almost four
months”).
The acts of harassment allegedly experienced by LaVell Lane do not
raise a genuine dispute as to whether plaintiff’s work environment was
14

sufficiently abusive.

Indeed, there is no evidence that plaintiff had

witnessed, or was even aware, of those acts. See White v. Gov’t Emps. Ins.
Co., 457 F. App’x 374, 382 n.32 (5th Cir. 2012) (“Because there is no evidence
that [plaintiff] was aware of the remarks made behind her back, those alleged
comments could not have contributed to a hostile work environment.”);
Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1522 (11th Cir. 1995) (holding
that because “some of the incidents relied upon were not made known to
[plaintiff] until after her termination,” they “could not have contributed to
her subjective view of a hostile environment”). Because plaintiff was not
aware of the harassment experienced by Lane, this harassment could not
have not contributed to plaintiff’s subjective perception of a hostile work
environment. Even considering Lane’s testimony about the harassment he
experienced, some of which appears to have been remedied before plaintiff
was even hired,38 Lane’s testimony, together with plaintiff’s other evidence
of harassment, is insufficient to raise a genuine dispute as to whether
conditions at Textron were so abusive as to create a hostile work
environment.

According to Lane, Textron investigated the racist graffiti and
terminated an employee based on that investigation in 2015 or 2016. R. Doc.
23-6 at 11, 26, 38. Plaintiff, who was hired in October 2016, did not mention
any racist graffiti during his deposition.
15

38

There is no genuine dispute that plaintiff’s work environment was not
so abusive that it altered the terms and conditions of plaintiff’s employment.
The one severe incident of which plaintiff complains—the crowbar incident—
is connected to plaintiff’s race only by speculation. Defendant is therefore
entitled summary judgment on plaintiff’s hostile work environment claim.
B.

Racial Discrimination

To establish a prima facie case of discrimination under the McDonnell
Douglas burden-shifting framework,39 see McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973), “an employee must demonstrate that she
‘(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)).

The only direct evidence of racial discrimination cited by plaintiff is
Corley’s racist remark, which was not directed at plaintiff and was promptly
remedied. See Rachid v. Jack In The Box, Inc., 376 F.3d 305, 310 n.6 (5th
Cir. 2004).
16
39

Defendant seeks summary judgment on the ground that plaintiff did
not suffer an adverse employment action because he resigned from his
employment at Textron.

Plaintiff argues that he was constructively

discharged. “In determining whether an employer’s actions constitute a
constructive discharge,” courts consider “whether ‘working conditions
became so intolerable that a reasonable person in the employee’s position
would have felt compelled to resign.’” Aryain v. Wal-Mart Stores Tex. LP,
534 F.3d 473, 480 (5th Cir. 2008) (quoting Penn. State Police v. Suders, 542
U.S. 129, 141 (2004)). An employee may be constructively discharged in
several ways, including by:
(1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work;
(5) badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; or (6) offers
of early retirement that would make the employee worse off
whether the offer were accepted or not.
Id. at 481 (quoting Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 77172 (5th Cir. 2001)). Constructive discharge based on harassment “must
demonstrate a greater severity or pervasiveness . . . than the minimum
required to prove a hostile working environment.” Stover v. Hattiesburg
Pub. Sch. Dist., 549 F.3d 985, 991 (5th Cir. 2008) (quoting Landgraf v. USI
Film Prods., 968 F.2d 427, 430 (5th Cir. 1992)).

17

Plaintiff asserts that he was compelled to resign because he felt his
safety was in jeopardy.40 In his deposition, plaintiff stated: “I didn’t feel safe
working there. I felt like I was always being watched and I just didn’t feel
safe at all working there anymore.” 41 Plaintiff decided to resign because of
the events that occurred on October 28 and October 31, 2016—Corley’s racist
remark, the crowbar incident, and Galloway’s boss’s following plaintiff into
the bathroom. 42
Plaintiff has failed to raise a genuine dispute as to whether a reasonable
person in his position would have felt compelled to resign. As explained
earlier, insufficient evidence exists to support the reasonable inference that
the crowbar incident involved deliberate action by a Textron employee.
There is also no evidence that Corley knew about plaintiff’s complaint when
he warned plaintiff about falling objects. Thus, plaintiff fails to raise a
genuine dispute as to whether Corley’s warning and the crowbar incident
were “calculated to encourage the employee’s resignation.” Aryain, 534 F.3d
at 481. The other acts of harassment experienced by plaintiff were not
sufficiently severe or pervasive to support a hostile work environment claim.

40
41
42

R. Doc. 23 at 18.
R. Doc. 23-1 at 46.
See id.
18

As a matter of law, therefore, these acts of harassment cannot establish
constructive discharge. Stover, 549 F.3d at 991.
Moreover, plaintiff did not return to work after October 31, and
formally resigned a couple days later. Plaintiff made no attempt to report
the harassment he experienced on October 31. The Fifth Circuit has held that
such a rapid resignation, without any attempt to internally resolve any issues,
may be unreasonable under the circumstances.

See Haley v. All.

Compressor LLC, 391 F.3d 644, 652 (5th Cir. 2004); Boze v. Branstetter, 912
F.2d 801, 805 (5th Cir. 1990). Indeed, “part of an employee’s obligation to
be reasonable is an obligation not to assume the worst, and not to jump to
conclusions too fast.” Aryain, 534 F.3d at 481 (quoting Dornhecker v.
Malibu Grand Prix Corp., 828 F.2d 307, 310 (5th Cir. 1987)). In some cases,
an employee “might have an objective basis for concluding that further
reports of harassment would be futile.” Woods v. Delta Beverage Grp., Inc.,
274 F.3d 295, 300 (5th Cir. 2001). For example, an employee likely would
not feel comfortable lodging a complaint about a supervisor with that same
supervisor. But plaintiff had other reporting options. According to Textron’s
Business Conduct Guidelines, which plaintiff received merely two weeks
before the alleged harassment, 43 Textron employees could report behavior to

43

R. Doc. 16-9.
19

human resources employees or via a helpline. 44 Moreover, there is no
evidence that plaintiff had reason to believe that a complaint through one of
these channels would be futile. Indeed, Textron clearly heeded plaintiff’s
October 28 complaint against Corley, who was immediately suspended
pending an internal investigation. Because plaintiff cannot raise a genuine
dispute as to whether he suffered an adverse employment action, defendant
is entitled summary judgment on plaintiff’s racial discrimination claim.
C.

Retaliation

Title VII makes it unlawful for an employer to discriminate against an
employee who has opposed an employment practice made unlawful by Title
VII. 42 U.S.C. § 2000e-3(a). In order to state a retaliation claim, a plaintiff
must allege “(1) that [she] engaged in activity protected by Title VII, (2) that
an adverse employment action occurred, and (3) that a causal link existed
between the protected activity and the adverse action.” Raggs v. Miss. Power
& Light Co., 278 F.3d 463, 471 (5th Cir. 2002).
“An employee has engaged in protected activity when she has (1)
‘opposed any practice made an unlawful employment practice’ by Title VII
or (2) ‘made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing’ under Title VII.”

44

R. Doc. 16-8 at 6.
20

Douglas v.

DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998)
(quoting 42 U.S.C. § 2000e-3(a)).

An adverse employment action for

purposes of retaliation “is one that ‘a reasonable employee would have found
to be materially adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.’” Hernandez, 670 F.3d at 657 (alterations omitted) (quoting
Aryain, 534 F.3d at 484). But “[t]he actions of ordinary employees are not
imputable to their employer unless they are conducted ‘in furtherance of the
employer’s business.’” Id. (quoting Long v. Eastfield Coll., 88 F.3d 300, 306
(5th Cir. 1996)). Causation for purposes of showing retaliation requires
showing that the plaintiffs protected activity was a but-for cause of the
adverse employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.
338, 360 (2013).
Plaintiff asserts that he opposed a practice made unlawful by Title VII
when he complained about Corley’s racist remark.45 He argues that the
crowbar incident, his supervisors’ excessively monitoring and following him,
and the other alleged acts of harassment were adverse employment actions
caused by his complaint.

45

R. Doc. 23 at 19.
21

As an initial matter, the crowbar incident is not evidence of retaliation
because there is insufficient evidence showing that plaintiff was deliberately
hit by the crowbar. Likewise, there is insufficient evidence showing that
plaintiff would not have been hit by the crowbar but for his protected activity.
Thus, plaintiff fails to raise a genuine dispute as to whether there was a causal
nexus between his complaint against Corley and the crowbar incident.
Plaintiff essentially argues that the other alleged instances of
harassment amount to a retaliatory hostile work environment.46 Plaintiff’s
complaint against Corley and the alleged acts of harassment that took place
on October 31 were very close in time; this temporal proximity suffices to
establish a causal nexus. See Feist v. Louisiana, Dep’t of Justice, Office of
the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013) (“A plaintiff alleging
retaliation may satisfy the causal connection element by showing ‘[c]lose
timing between an employee’s protected activity and an adverse action
against him.’” (quoting McCoy v. City of Shreveport, 492 F.3d 551, 562 (5th
Cir. 2007)). But, as explained earlier, the harassment allegedly experienced
by plaintiff was not severe or pervasive enough to alter the terms or

The Fifth Circuit has not yet recognized a retaliation claim based on a
hostile work environment, but every other circuit has. See Heath v. Bd. of
Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 742 n.5 (5th
Cir. 2017).
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conditions of employment. 47 Nor was it severe or pervasive enough to
“dissuade[] a reasonable worker from making or supporting a charge of
discrimination.” Hernandez, 670 F.3d at 657; see also Bryan v. Chertoff,
217 F. App’x 289, 293-94 (5th Cir. 2007) (applying the hostile work
environment standard in holding that plaintiff failed to establish a retaliatory
hostile work environment claim). Thus, defendant is entitled summary
judgment on plaintiff’s retaliation claim.
D.

Intentional Infliction of Emotional Distress

To state a claim for intentional infliction of emotional distress, a
plaintiff must allege that: (1) the defendant’s conduct was extreme and
outrageous; (2) the emotional distress suffered by the plaintiff was severe;
and (3) the defendant intended to inflict severe emotional distress, or knew
that such distress would be certain or substantially certain to result from his
conduct. White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991). To satisfy
the first element, the defendant’s conduct must “go beyond all possible
bounds of decency, and . . . be regarded as atrocious and utterly intolerable
in a civilized community.” Id. Such conduct “does not extend to mere

Although Title VII’s “antiretaliation provision extends beyond
workplace-related or employment-related retaliatory acts and harm,” White,
548 U.S. at 67, plaintiff does not point to any instances of harassment other
than those discussed earlier.
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insults, indignities, threats, annoyances, petty oppressions, or other
trivialities. Persons must necessarily be expected to be hardened to a certain
amount of rough language, and to occasional acts that are definitely
inconsiderate and unkind.” Id.
“[I]n a workplace setting,” Louisiana courts have “limited the cause of
action to cases which involve a pattern of deliberate, repeated harassment
over a period of time.” Nicholas v. Allstate Ins. Co., 765 So. 2d 1017, 1026
(La. 2000). At the same time, “[a] plaintiff’s status as an employee may
entitle him to a greater degree of protection from insult and outrage by a
supervisor with authority over him than if he were a stranger.” White, 585
So. 2d at 1210.
Plaintiff has failed to point to evidence of “deliberate, repeated
harassment over a period of time.” Nicholas, 765 So. 2d at 1026. The
harassment of which plaintiff complains occurred over only two days, and
most of the allegedly harassing acts were not particularly serious. Only the
crowbar incident could be considered extreme and outrageous. But, as
explained earlier, plaintiff merely speculates that he was deliberately hit by
the crowbar. Thus, defendant is entitled summary judgment on plaintiff’s
claim for intentional infliction of emotional distress.

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IV.

CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment

is GRANTED. Plaintiff’s complaint is DISMISSED WITH PREJUDICE.

30th
New Orleans, Louisiana, this _____ day of April, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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