Belson v. Department of Interior et al

Filing 64

ORDER AND REASONS: For the following reasons, the Motion 36 is GRANTED IN PART, as stated herein. Signed by Judge Jane Triche Milazzo on 07/15/2021. (am)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RODERICK BELSON

CIVIL ACTION

VERSUS

NO: 17-7333

DEPARTMENT OF INTERIOR ET AL .

SECTION: “H”

ORDER AND REASONS
Before the Court is Defendant’s Motion to Dismiss or Alternatively for
Summary Judgment (Doc. 36). For the following reasons, the Motion is
GRANTED IN PART.
BACKGROUND
Plaintiff Roderick Belson was a Senior Incident Investigation Coodinator
with the Office of Incident and Investigation (“OII”) at the Bureau of Safety &
Environmental Enforcement (“BSEE”), an agency of the Department of
Interior. In his Complaint, he brought a number of claims against his employer
for harassment, intentional discrimination, and retaliatory treatment
resulting in the denial of pay increases and promotional opportunities. Since
discovery, Plaintiff has limited his case to just two claims and consents to the
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dismissal of all other claims. Plaintiff now alleges that (1) he was retaliated
against for prior protected activity, and (2) he was subjected to a hostile work
environment.
In December 2015, Plaintiff, an African American, made an EEO
complaint that he was receiving less compensation than his white colleagues
for comparable work and that he was subjected to disparate treatment based
on his race and disability. Thereafter, Plaintiff alleges that another employee,
Charles Arnold, was selected to serve as the Acting/Permanent Chief of the
OII. He further alleges that Arnold was put in the position as his superior in
order to harass him in response to his EEO Complaint.
Defendant filed a Motion to Dismiss or Alternatively for Summary
Judgment on Plaintiff’s claims. Plaintiff has consented to some of the relief
requested therein. Specifically, Plaintiff consents to the dismissal of the
Department of Interior and BSEE as Defendants; and the dismissal of his
disparate treatment claim concerning the reclassification of his job series; his
claim based on delayed reclassification; his race discrimination claim; his
disability discrimination claim; and all state law claims. Plaintiff opposes
dismissal of his retaliation and hostile work environment claims.
Although Defendant’s Motion was styled as a Motion to Dismiss or
Alternatively for Summary Judgment, the Motion is converted to a motion for
summary judgment because Defendant has attached matters outside the
pleadings, which the Court chooses not to exclude. 1 The Court further finds

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See FED.R.CIV.P. 12(d).

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that both parties have received adequate notice that this Motion might be
converted because both parties have attached matters outside the pleadings.
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” 2 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 3
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 4 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 5 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 6 “In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
4 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
5 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
6 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
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sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.” 7 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.” 8 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 9

LAW AND ANALYSIS
The Court will consider Defendant’s arguments for dismissal of
Plaintiff’s retaliation and hostile work environment claims in turn.
A. Retaliation
“Title VII’s antiretaliation provision forbids employer actions that
discriminate against an employee (or job applicant) because he has opposed a
practice that Title VII forbids or has made a charge, testified, assisted, or
participated in a Title VII investigation, proceeding, or hearing.” 10 “A
retaliation claim has three elements: (1) the employee engaged in activity
protected by Title VII; (2) the employer took adverse employment action
against the employee; and (3) a causal connection exists between that protected
activity and the adverse employment action.” 11 An adverse employment action
must be “materially adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of
John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
8 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
9 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
10 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006).
11 Brazoria Cnty., Tex. v. E.E.O.C., 391 F.3d 685, 692 (5th Cir. 2004).
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discrimination.” 12 “If the plaintiff makes a prima facie showing, the burden
then shifts to the employer to articulate a legitimate . . . non-retaliatory reason
for its employment action. If the employer meets this burden of production, the
plaintiff then bears the burden of proving that the employer’s reason is a
pretext for the actual retaliatory reason.” 13
Plaintiff easily satisfies the first prong of his prima facie case. It is
undisputed that, in December 2015, he complained to his supervisors and filed
an EEO complaint alleging racial discrimination in pay and disparate
treatment based on race and disability. Shortly thereafter, in January 2016,
Charles Arnold was appointed to serve as acting, and later permanent, Chief
of the OII. Plaintiff alleges that Arnold was appointed to be his supervisor in
order to harass him in retaliation for his EEO complaint. 14 Specifically, he
alleges Arnold treated him differently than the other employees in the OII, was
confrontational toward him, closely monitored his whereabouts, interrogated
and unduly questioned him, and denied his requests for leave to attend doctor’s
appointments. Plaintiff points to the temporal proximity of his EEO Complaint
and Arnold’s appointment as proof of a causal connection. However, even
assuming that Plaintiff has established a prima facie case, the Court finds that
Plaintiff cannot show any discriminatory animus in Arnold’s hiring.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 484 (5th Cir. 2008).
14 The Court notes that the briefing evinces some confusion about the nature of
Plaintiff’s retaliation claim. Specifically, Plaintiff seems to argue that he was retaliated
against by the selection of Arnold as his supervisor, while Defendant characterizes the
retaliation as the non-selection of Plaintiff for the Chief of OII position. Assuming Plaintiff
intended to bring the latter claim as Defendant suggests, he has not sufficiently shown that
he was better qualified for the position.
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Defendant argues that Arnold was selected by a three-person panel for
the position because he was the most qualified of the applicants. It points out
that, although Arnold had a background in law enforcement, he had worked as
a Special Investigator for BSEE for three years prior to his selection. He had
also served as a panel chair, which was a qualification specifically identified in
the vacancy announcement.
Plaintiff argues that this legitimate, non-discriminatory reason for
Arnold’s selection is not to be believed. He argues that Arnold was not qualified
for the position because he had no experience working in the oil industry.
Rather, all of his prior experience was in law enforcement. Arnold had never
worked in the OII, and Plaintiff argues that he did not have the experience
necessary to supervise the petroleum engineers and incident investigators in
that office. Plaintiff also points out that the criteria for the OII Chief position
had to be changed from GS14 to GS13/14 for Arnold to qualify for the job. 15
Plaintiff alleges that Arnold was appointed as his supervisor to harass him and
use the interrogation tactics he learned as a law enforcement officer on
Plaintiff on a daily basis.
Plaintiff does not, however, provide any evidence of discriminatory
animus in Arnold’s hiring. The Fifth Circuit has stated that courts “must
remain cognizant that the ultimate issue is whether the employer’s selection
of a particular applicant . . . was motivated by discrimination.” 16
“[A]n employer’s ‘disregard of its own hiring system does not of itself conclusively
establish that improper discrimination occurred or that a nondiscriminatory explanation for
an action is pretextual.’” Churchill v. Texas Dep’t of Crim. Just., 539 F. App’x 315, 320 (5th
Cir. 2013) (quoting EEOC v. Tex. Instruments Inc., 100 F.3d 1173, 1182 (5th Cir. 1996)).
16 Id.
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“[D]iscrimination suits still require evidence of discrimination.” 17 Although
Plaintiff calls into question Defendant’s legitimate, non-discriminatory reason,
he does not offer any evidence that the real reason for Arnold’s hiring was
discriminatory. Plaintiff has failed to “meet his burden of producing any
evidence of discrimination sufficient to survive summary judgment, and his
evidence to rebut the non-discriminatory reasons offered by [Defendant] is not
so persuasive so as to support an inference that the real reason was
discrimination.” 18 Accordingly, his retaliation claim is dismissed.
B. Hostile Work Environment
Next, Plaintiff argues that he was subjected to a hostile work
environment at the hands of Arnold. At different points in his briefing, Plaintiff
suggests that he was subjected to this harassment because of his race or in
retaliation for his EEO claim. This Court will consider each claim separately.
a. Hostile Work Environment Based on Race 19
To establish a hostile work environment claim under Title VII, a plaintiff
must show all of the following: (1) that he belongs to a protected class; (2) that
he was subjected to unwelcome harassment; (3) that the harassment was based
on the protected class; (4) that the harassment was sufficiently severe or

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2000).

Rubinstein v. Administrators of Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir.

Id.
Defendant’s briefing mainly addresses Plaintiff’s claim for retaliatory hostile work
environment in light of its belief that Plaintiff agreed to the dismissal of all claims based on
race. The Court, however, reads Plaintiff’s briefing as only consenting to the dismissal of his
racial discrimination claim. See Doc. 47 at 1, n.1.
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pervasive; and (5) the employer knew of the harassment and failed to take
prompt remedial action. 20
To create a hostile work environment, harassment must be “severe and
pervasive,” involving “patterns or allegations of extensive, longlasting,
unredressed, and uninhibited . . . threats or conduct that permeate[] the
plaintiffs’ work environment.” 21 “To be actionable, the challenged conduct must
be both objectively offensive, meaning that a reasonable person would find it
hostile and abusive, and subjectively offensive, meaning that the victim
perceived it to be so.” 22 “In determining whether a workplace constitutes a
hostile work environment, courts must consider the following circumstances:
‘the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.’” 23
Defendant argues that Plaintiff cannot show that the harassment of
which he complains was severe and pervasive. Plaintiff presents evidence that
Arnold treated him differently than his other subordinates at the OII.
Specifically, he argues that Arnold would:
‘[B]ow up’ to or physically challenge Mr. Belson for no reason;
Monitor Mr. Belson’s whereabouts on a daily basis; Invade Mr.
Belson’s personal space and threaten Mr. Belson with physical
violence; Give Mr. Belson ridiculous, untenable work deadlines to
meet; Interrogate Mr. Belson to the point that Mr. Belson’s
colleagues believed that Mr. Belson suffered from Parkinson’s
Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298 (5th Cir. 2001).
Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir. 1999).
22 Shepherd v. Comptroller of Pub. Accounts of State of Texas, 168 F.3d 871, 874 (5th
Cir. 1999).
23 Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (quoting Walter v.
Thompson, 214 F.3d 615, 625 (5th Cir. 2000)).
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disease because he shook noticeably; Unduly question Mr. Belson
about his medical appointments; Den[y] Mr. Belson leave to attend
a doctor’s appointment at the VA, which exacerbated Mr. Belson’s
knee problem and resulted in Mr. Belson needing knee surgery[.]
In support of his claims, Plaintiff relies in large part on the testimony of his coworker, Cemal Ozoral. Ozoral testified that Plaintiff was treated differently by
Arnold than other employees at the OII. He confirmed that Arnold was
“constantly” checking on Plaintiff’s whereabouts, that he was “extremely
confrontational” with Plaintiff, that he raised his voice at Plaintiff, that he
made physically threatening gestures and body language toward Plaintiff, that
he gave Plaintiff unrealistic deadlines for the completion of work, and that
Plaintiff left Arnold’s office on multiple occasions “shaking.” He testified that
these interactions occurred daily or every few days. Ozoral further testified
that he found it significant that Plaintiff was the only African American at the
OII and the only one that was treated differently, suggesting that the
harassment was a result of Plaintiff’s race. Accordingly, Plaintiff has presented
evidence of persistent harassment and threats of physical violence because of
his race.
Defendant also argues that Plaintiff’s claim must fail because it took
prompt remedial action to address the alleged harassment. “Prompt remedial
action must be reasonably calculated to end the harassment.” 24 Further,
“[w]hat constitutes prompt remedial action depends on the facts of the case;
not every response by an employer will be sufficient to discharge its legal
duty.” 25 The record shows that Plaintiff reported his problems with Arnold as
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Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 329 (5th Cir. 2004).
Id.
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early as February 2016 and that Arnold was counseled on the issue. Plaintiff
complained again in September 2016, and Arnold was again counseled.
Plaintiff alleges that the harassment was ongoing throughout this time period.
It is undisputed that Plaintiff was not removed from Arnold’s supervision until
October 2017. Defendant alleges that the delay was a result of bureaucracy, a
change in administrations, a vacancy in the Director position, and Plaintiff’s
ongoing EEO investigations. Accordingly, there is an issue of fact regarding
whether Defendant took prompt remedial action in response to Plaintiff’s
complaints of harassment. Plaintiff has therefore presented sufficient evidence
to establish a prima facie case on his claim for hostile work environment based
on race. Summary judgment on this claim is inappropriate.
b. Retaliatory Hostile Work Environment
In a retaliatory hostile environment claim, the first and third elements
of a prima facie case have a different focus. “In the retaliation context, the first
element would require proof that the plaintiff had engaged in protected
activity, and the third element would require demonstration of a causal
connection between the harassment and the protected activity.” 26 Here,
Plaintiff’s claim fails on the third element. It is undisputed in the record that
Arnold was not aware of Plaintiff’s EEO Complaint until March 2016—three
months after he was selected as Plaintiff’s supervisor and began the alleged
harassment. Accordingly, Plaintiff cannot show a causal link between the
harassment and his EEO complaint. This claim is dismissed.

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Rowe v. Jewell, 88 F. Supp. 3d 647, 673 (E.D. La. 2015).
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CONCLUSION
For the foregoing reasons, the Motion is GRANTED IN PART.
Plaintiff’s claim for hostile work environment based on race against the
Secretary of the Department of Interior remains pending. All other claims are
DISMISSED WITH PREJUDICE. All claims against the Department of
Interior and the Bureau of Safety and Environmental Enforcement are
DISMISSED WITH PREJUDICE.

New Orleans, Louisiana this 15th day of July, 2021.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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