Flettrich v. Chevron Oronite Company L.L.C. et al

Filing 79

ORDER AND REASONS: IT IS HEREBY ORDERED that defendant's 45 Motion for Summary Judgment is GRANTED. Signed by Judge Ivan L.R. Lemelle on 1/18/2023. (pp)

Case 2:21-cv-01986-ILRL-DPC Document 79 Filed 01/18/23 Page 1 of 14

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID FLETTRICH

CIVIL ACTION

VERSUS

NO. 21-1986

CHEVRON ORONITE
COMPANY, LLC ET AL

SECTION “B”(2)
ORDER AND REASONS

Before the Court are defendant Chevron Oronite Company LLC’s
motion for summary judgment (Rec. Doc. 45), plaintiff’s opposition
to defendant’s Rule 56 motion for summary judgment (Rec. Doc. 62),
and defendants reply memorandum (Rec. Doc. 69). For the following
reasons,
IT

IS

HEREBY

ORDERED

that

defendant’s

motion

for

summary

judgment is GRANTED.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
David Flettrich (“plaintiff”) began working for Chevron Oronite

- Oak Point (“Chevron”), in November 2007. Rec. Doc. 19 at 3.
Plaintiff worked at Chevron for a total of thirteen years, first as
a senior category specialist in the procurement department for eleven
years, then as a maintenance team leader for the remaining two years,
until his employment was terminated on October 15, 2020. Id. at 3,
5. Around March or April 2020, plaintiff and defendant Jerry Ockmand
(“Ockmand”), a co-worker in the maintenance department also employed
as maintenance team leader, were told by the section head that their
department would be reducing the number of maintenance team leaders
from eight to six. See id. at 5.
1

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Sometime

shortly

after

this

announcement

Ockmand

filed

a

complaint against Flettrich, alleging that he had used a racial slur
at work, the n-word, in violation of Chevron’s harassment policy
which states, “All employees are to conduct themselves in a manner
to ensure that they comply with the provisions of the company’s
policy which strictly prohibits and does not tolerate harassment
based on race. . .” Id. at 6; Rec. Doc. 45-1 at 3 (internal quotations
omitted) (emphasis in original) (quoting Rec. Doc. 45-3)). As a
result of the complaint, Chevron’s Human Resources (“HR”), located
in Houston, Texas, opened an investigation led by Employee Relations.
See

id.;

Rec.

Doc.

45-7

at

1.

During

the

process

of

the

investigation, the Employee Relations representative “interviewed
eleven witnesses and the accused and reviewed various documents
provided by them.” Rec. Doc. 45-7 at 1.
The first instance in which Jeff Trader with employee relations
(“ER”) investigated was an alleged comment made in October 2019. See
id. 1 According to Ockmand, “Flettrich came into [his] office and said
to him, ‘Them scaffold are a bunch of stupid [f-word] [n-word].”2
Id. While no one else was present, Ockmand did tell several coworkers about the incident. Id. Specifically, Mike Peco, the head
mechanic at the facility, heard about the incident from Ockmand, and

11 However, in his deposition Ockmand stated that ER was mistaken, and the
Flettrich made the racial statement around May or June of 2020. See Rec. Doc. 62
at 15-16.
2 In keeping with the decorum of this Court, the alleged words used are omitted;
however, they can be found in Rec. Doc. 45-1 at 1.

2

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recounted a similar experience with Flettrich from December 2019 or
January 2020, Flettrich told Peco, “I should put them reporting to
you because you know all the rules. These [n-word] are driving me
crazy because they don’t record anything.” Id. at 2. No one except
Peco and Flettrich were present for that incident, but Peco did
discuss the incident with another co-worker soon thereafter, which
was corroborated by the co-worker. Id. Plaintiff was not informed
about the second allegation made by Peco during the investigation,
however it did appear in Trader’s report. See Rec. Doc. 62 at 1718; Rec. Doc. 45-7.
Additionally, ER interviewed another employee who stated that
two other Black contractors heard Flettrich use the n-word in their
presence, specifically stating when referring to a labor crew of all
Black workers, “They ain’t nothing but a bunch of [n-word],” and
“Them [n-word] don’t do nothing.” Rec. Doc. 45-7 at 2. Also adding
that the scaffolding crew heard Flettrich referring to them as the
n-word

to

a

White

contractor.

Id.

While

there

were

no

other

allegations of using racial slurs, Flettrich received several other
negative comments regarding his behavior. See id. at 3.
ER’s

investigation

resulted

in

the

conclusion,

“While

Mr.

Flettrich seemed credible in his inability to remember using the Nword in conversation, evidence suggests that he has used it at least
twice in conversation with Whites, but outside the presence of Black
people, in the last year.” Id. at 4. Ultimately, ER stated that
3

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“Flettrich engaged in misconduct which violated which violated [sic]
HR Policy 420 - Harassment in the Workplace.” Id. at 1. After
completion of ER’s investigation, Chevron’s Oak Point Plant Manager
consulted with the facility’s Maintenance and Reliability Manager
and two Human Resources Managers about ER’s findings. Rec. Doc. 451 at 5. Aided by the Vice President of Sales and Marketing, the group
decided to terminate Flettrich’s employment, citing in a “Record of
Discussion” that “Chevron substantiated on more than one occasion
and according to more than one witness [Plaintiff] used a racial
slur (the N-word) to a describe [sic] a group of contract workers.”
Id. at 6 (internal quotations omitted) (alterations in original).
Plaintiff
vacant

position

alleges
was

that

filled

shortly
by

a

after

Black

his

termination,

individual

and

his

Hispanic

individual. See Rec. Doc. 19 at 8; Rec. Doc. 62 at 6, 14, 19.
Plaintiff then filed suit against Chevron Oronite Company, L.L.C.,
Ockmand, and ABC Insurance Company in the 25th Judicial District
Court of the Parish of Plaquemines on October 5, 2021. See Rec. Doc.
1-3 at 3. Plaintiff claimed, intentional infliction of emotional
distress, negligent infliction of emotional distress, fraudulent
misrepresentation,

defamation,

and

discrimination

under

the

Louisiana Employment Discrimination Law (“LEDL”). This Court later
dismissed all claims against Ockmand, and dismissed all claims except
plaintiff’s state claim for discrimination under LEDL. See Rec. Doc.
31; Rec. Doc. 32; Rec. Doc. 45-1 at 1-2. Defendant filed a motion
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for summary judgment on November 11, 2022 and set it for submission
on December 7, 2022. See Rec. Doc. 46.
II.

LAW AND ANALYSIS
A. Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56, summary judgment

is

appropriate

interrogatories,

when
and

“the

pleadings,

admissions

on

depositions,
file,

together

answers
with

to
the

affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quoting Fed. R. Civ. P. 56(c)). A genuine issue of material fact
exists if the evidence would allow a reasonable jury to return a
verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). As such, the court should view all facts
and evidence in the light most favorable to the non-moving party,
without

“making

credibility

determinations

or

weighing

the

evidence.” United Fire & Cas. Co. v. Hixon Bros. Inc., 453 F.3d 283,
285 (5th Cir. 2006); Turner v. Baylor Richardson Med. Ctr., 476 F.3d
337, 343 (5th Cir. 2007) (citing Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000)).
When the movant bears the burden of proof at trial, it must
“demonstrate the absence of a genuine issue of material fact” using
competent summary judgment evidence. Celotex, 477 U.S. at 323.
However, “where the non-movant bears the burden of proof at trial,
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the movant may merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). Should the
movant meet its burden, the burden shifts to the non-movant, who
must show by “competent summary judgment evidence” that there is a
genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618. However, “a party cannot defeat summary judgment with
conclusory

allegations,

unsubstantiated

assertions,

or

only

a

scintilla of evidence.” Turner, 476 F.3d at 343 (internal quotations
omitted) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994)).
B. Plaintiff’s Louisiana Employment Discrimination Law Claims
Plaintiff’s

only

remaining

claims

are

brought

under

the

Louisiana Employment Discrimination Law (“LEDL”). Rec. Doc. 45-1 at
1-2. “Claims of racial discrimination in employment, pursuant to .
. . the Louisiana Employment Discrimination Law, are governed by the
same analysis as that employed for such claims under Title VII.”
DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007) (first citing
Anderson v. Douglas & Lomason Co., 26 F.3d 1277, 1284 n.7 (5th Cir.
1994); and then citing Motton v. Lockheed Martin Corp., 2003-0962
(La. App. 4 Cir. 3/2/05); 900 So.2d 901, 909). Disparate treatment,
including racial discrimination cases “are analyzed under the test
developed for Title VII plaintiffs in McDonnel Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, 678 (1973).” See
6

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LaBove v. Raftery, 2000-1394, 2000-1423 (La. 11/28/01); 802 So.2d
566, 573. According to McDonnel Douglas Corp., the plaintiff bears
the initial burden of proof to establish the prima facie case for
racial discrimination. McDonnel Douglas Corp., 411 U.S. at 802. The
Fifth Circuit has expanded on the McDonnel Douglas Corp. for its
specific application to the LEDL, and requires that the plaintiff
show “(1) they were members of a protected group; (2) they were
qualified for the positions they held; (3) they suffered an adverse
employment action, such as termination; and (4) they were replaced
by individuals outside the protected class.” See DeCorte, 497 F.3d
at 437 (citing Manning v. Chevron Chem. Co., 332 F.3d 874, 881 (5th
Cir. 2003)). However, “[a]n employee has not been replaced when his
former duties are distributed among other co-workers.” Ernst v.
Methodist Hosp. Sys., 1 F.4th 333, 339 (5th Cir. 2021) (quoting
Griffin v. Kennard Indep. Sch. Dist., 567 F. App’x 293, 294-95 (5th
Cir. 2014)).
If plaintiff can show a prima facie case for discrimination,
the burden shifts to defendant “to rebut Plaintiff[‘s] prima facie
case by articulating a legitimate, nondiscriminatory reason for his
actions.” Id. Finally, if defendant is successful in its rebuttal,
the burden shifts back to the plaintiff “to show [defendant’s]
proffered reason is a pretext for discrimination,” and plaintiff
must rebut each of defendant’s proffered nondiscriminatory reason.
See id.; Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). “A
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plaintiff may establish pretext either through evidence of disparate
treatment or by showing that the employer's proffered explanation is
false or ‘unworthy of credence.’” Laxton, 333 F.3d at 578 (citations
omitted). However, a plaintiff’s own assertion of innocence does not
create a triable issue of fact as to pretext. See Jackson v. CalWestern Packing Corp., 602 F.3d 374, 379 (5th Cir. 2010). “In cases
in which an employer discharges an employee based on the complaint
of another employee, the issue is not the truth or falsity of the
allegation,

but

‘whether

the

employer

reasonably

believed

the

employee’s allegation and acted on it in good faith.’” Id. (citing
Waggoner v. City of Garland, 987 F.2d 1160, 1165 (5th Cir. 1993)).
“[S]imply disputing the underlying facts of an employer’s decision
is not sufficient to create an issue of pretext.” Deanes v. N. Miss.
State Hosp., 543 Fed. App’x 366, 370 (5th Cir. 2013) (internal
quotations omitted) (quoting LeMaire v. La. Dep’t of Transp. & Dev.,
480 F.3d 383, 391 (5th Cir. 2007)); see also Gill v. DIRTT Env’t
Sol.,

Inc.,

790

Fed.

App’x

601,

605

n.2

(5th

Cir.

2019)

(“[I]naccurate statements are not a basis for finding pretext . . .
.”); Alfred v. La. Dep’t of Corr., 619 Fed. App’x 324, 327 (disputing
the accuracy of the employer’s belief, rather than the genuineness,
does not constitute pretext).
Here, in viewing the facts the light most favorable to the nonmovant, plaintiff has not demonstrated a prima facie case for racial
discrimination under the LEDL. There is no dispute of the first three
8

Case 2:21-cv-01986-ILRL-DPC Document 79 Filed 01/18/23 Page 9 of 14

elements that plaintiff (1) is a member of a protected group; (2) he
was qualified for his position; and (3) he was terminated. Plaintiff
is a 56-year-old White male, defendant makes no allegation that he
was not qualified for his job, and plaintiff was terminated. See
Rec. Doc. 62 at 23. However, plaintiff does not establish that (4)
he was replaced by individuals outside his protected class. See
DeCorte, 497 F.3d at 437 (citing Manning, 332 F.3d at 881). The Fifth
Circuit has held that “[a]n employee has not been replaced when his
former duties are distributed among other co-workers.” Ernst, 1 F.4th
at 339 (quoting Griffin, 567 F. App’x at 294-95).
In Ernst, plaintiff contended that another employee of another
race

replaced

him

in

his

role.

However,

the

court

found

that

plaintiff’s contention failed because the employee did not actually
replace plaintiff, instead plaintiff’s “duties were divided among
other employees within his department,” and held that plaintiff did
not

establish

the

fourth

element

of

contends

that

the

prima

facie

for

was

replaced

by

discrimination. Id. at 339-40.
Here,

while

plaintiff

he

individuals outside his protected class, Daniel Johnson, a Black
male, and William Sorto, a Hispanic male, his duties were distributed
among these employees. See Rec. Doc. 62-5 at 3-4. Similar to Ernst,
plaintiff’s responsibilities were distributed among other employees,
therefore plaintiff has not established that he was replaced by
someone outside his protected class.
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Ernst also establishes that the fourth element is satisfied
when plaintiff is treated less favorably than a comparator who is
similarly situated. See Ernst, 1 F.4th at 339 (citing Lee v. Kan
City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009)). To do this,
plaintiff “must establish that the comparator was treated more
favorably than the plaintiff under nearly identical circumstances.”
Id. (emphasis added) (internal quotations omitted) (quoting Rogers
v. Pearland Indep. Sch. Dist., 827 F.3d 403, 410 (5th Cir. 2016)).
“Nearly identical circumstances” occur “when the employees being
compared held the same jobs or responsibilities, shared the same
supervisor or had their employment status determined by the same
person and have essentially comparable violation histories.” Id.
(internal quotations omitted) (quoting Lee, 574 F.3d at 260).
However, the plaintiff has not shown that he has received less
favorable treatment than a similarly situated comparator in nearly
identical

circumstances.

Plaintiff

states

that

he

was

treated

differently than other similarly situated employees and cites to two
separate

instances.

Rec.

Doc.

62

at

14,

23.

According

to

the

Declaration of Carlo Damico, Jr., there was an incident around 2018
in which an individual used the n-word over the plant radio during
a dispute with a co-worker. See Rec. Doc. 62-3 at 3. The offending
employee was apparently removed from the plant but later allowed to
return as a contract employee. Id. However, as defendant correctly
points out, there is no evidence that the offending employee is
10

Case 2:21-cv-01986-ILRL-DPC Document 79 Filed 01/18/23 Page 11 of 14

outside

of

plaintiff’s

protected

class,

had

the

same

job

or

responsibilities, shared the same supervisor, had their employment
status determined by the same person, or otherwise had comparable
histories. See Rec. Doc. 69 at 10-11. Then according to Jeff Trader’s
notes from his interviews, there was another “refinery where same
word was used but in telling a ‘joke/story’ and they were not
terminated,” however this does not make the requisite showing of
nearly identical circumstances. See Rec. Doc. 62-116. No further
details were provided about this other incident, and as such it is
not comparable. Therefore, plaintiff does not establish the prima
facie case for discrimination.
Assuming plaintiff could establish the prima facie case, the
burden of proof then shifts to defendant to rebut with a legitimate,
nondiscriminatory reason for termination. See DeCorte, 497 F.3d at
437. Plaintiff makes no allegation that defendant did not meet this
burden,

plaintiff

only

argues

that

defendant’s

reason

for

terminating plaintiff was pretext. Defendant argues that plaintiff
was

terminated

for

violating

Chevron’s

harassment

policy

and

substantiates this claim with evidence of an extensive internal
investigation. See Rec. Doc. 45-1 at 5-6. The burden then shifts
again to plaintiff to show that defendant’s proffered reason was
mere pretext. See DeCorte, 497 F.3d at 437. Therefore, plaintiff has
the burden to show there is a genuine issue of material fact.

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Plaintiff does not establish that defendant’s proffered reason
was mere pretext, or that there is a genuine issue of material fact.
Plaintiff predominately argues that Jeff Trader’s investigation was
inaccurate

and

in

furtherance

of

a

company-wide

conspiracy

to

terminate plaintiff in order to meet diversity goals. See Rec. Doc.
19 at 6, 8, 9; Rec. Doc. 62 at 17. The Fifth Circuit has made it
clear that “the issue is not the truth or falsity of the allegation,”
but whether the employer acted on the reasonable belief of the
allegation. See Jackson, 602 F.3d at 379 (citing Waggoner, 987 F.2d
at 1165). Therefore, it is immaterial for this analysis whether the
allegations against plaintiff were in fact true, the only question
for pretext is whether Chevron reasonably believed the allegation
and acted in good faith.
It is undisputed that in August of 2020, Ockmand reported that
Flettrich allegedly used a racial slur when referring to a group of
Black Contractors, to his supervisor Pepper Martin and the Human
Resource Business Partner, Matt Yarborough. 3 Rec. Doc. 45-1. Human
Resources then referred these allegations to Employee Relations. Id.
at 4. Jeff Trader with Employee Relations opened an investigation
into

the

allegation.

interviewing

several

See

id.

Chevron

His

investigation

witnesses

to

consisted

corroborate

of

Ockmand’s

claims which he detailed in his final report. See Rec. Doc. 62-4 at
Whereas plaintiff contends that Ockmand stated the incident occurred in May or
June of 2020 according to his deposition in November of 2022 (Rec. Doc. 62 at
15-16), defendant contends that the incident occurred around October 2019 (Rec.
Doc. 45-1 at 3).
3

12

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1-3.

This

investigation

also

led

to

additional

allegations

of

Flettrich using racial slurs to refer to Black individuals, one
instance being corroborated by another employee. Trader noted in his
report that Pepper Martin believed that the other employees may have
conspired against Flettrich to corroborate Ockmand’s claims, but
after hearing other comments from Martin, decided to screen him from
the investigation process. See id. at 2 n.3. Trader concluded that,
“While Mr. Flettrich seemed credible in his inability to remember
using the N-word in conversation, evidence suggests that he has used
it at least twice in conversation with Whites, but outside the
presence of Black people, in the last year.” Id. at 4.
This report was then sent to Marla Jasko, the HR Manager at
Chevron Oronite Belle Chasse. Id. at 1. Then Brett Coole, Chevron’s
Oak

Point

Maintenance

Manager,
and

consulted

Reliability

with

Caio

Manager,

Santos,

Marla

the

Jasko,

facility’s

and

Dickson

Omungo, Jasko’s supervisor, about the Trader’s findings. Id. at 5.
Later,

Cooley,

Jirong

Xiao,

the

Vice

President

of

Sales

and

Marketing, along with support from Jasko and Omungo, decided to
terminate Flettrich’s employment, finding that “on more than one
occasion and according to more than one witness [Plaintiff] used a
racial slur (the N-word) to a [sic] describe a group of contract
workers.” Id. at 5-6 (internal quotations omitted) (alterations in
original). Overall, the process that led to plaintiff’s ultimate
termination was extensive and included personnel across various
13

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facilities and offices at different levels, within a reasonable
process that fairly and fully considered all material and competing
interests.
While plaintiff does not agree with the method or conclusion of
the investigation, he fails to show that Cooley and Xiao, with the
support of Jasko and Omungo, acted unreasonably and in bad faith.
As provided above, the record shows their decision to terminate
plaintiff’s employment was based on their reasonable belief in
employees’
responses

allegations
to

same.

against

plaintiff

Therefore,

plaintiff

and
has

their
not

good

faith

demonstrated

pretext.
New Orleans, Louisiana this 18th day of January, 2023

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

14