Burch v. Holcim US, Inc.

Filing 31

ORDER & REASONS denying 19 Motion for Summary Judgment. Signed by Judge Barry W Ashe on 3/5/2025. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

RONALD BURCH

CIVIL ACTION

VERSUS

NO. 24-1165

HOLCIM US, INC.

SECTION M (4)

ORDER & REASONS
Before the Court is a motion for summary judgment filed by defendant Holcim (US), Inc.
(“Holcim”).1 Plaintiff Ronald Burch responds in opposition,2 and Holcim replies in further support
of its motion.3 Having considered the parties’ memoranda, the record, and the applicable law, the
Court denies the motion.
I.

BACKGROUND
This case involves an employment dispute. Burch was employed for seven months as an

area manager by Holcim, a manufacturer and seller of cement mix.4 In his capacity as area
manager, Burch oversaw four concrete plants in the New Orleans area, including a plant in
Metairie which contains “settlement pits” used for recycling and treating “process water.”5 In
November of 2023, Holcim began transporting process water from another Holcim plant to the
Metairie plant.6 On Saturday, November 18, after Burch was alerted that a contractor was dumping
“waste fluid generated at the Port Sulphur plant” into the pits at the Metairie plant,7 he called

1

R. Doc. 19.
R. Doc. 23.
3
R. Doc. 24.
4
R. Docs. 19-1 at 8; 23 at 3.
5
R. Docs. 19-1 at 9; 23 at 3.
6
R. Doc. 19-1 at 14.
7
R. Doc. 23-3 at 194.
2

Holcim’s environmental manager, Robert Boudreaux, to report it.8 The parties dispute what
Boudreaux told Burch during this call.9 Two days later, on November 20, Burch observed another
truck dumping water from the other plant into the Metairie plant pits and notified general manager
Greg Sessa, who told Burch to permit the truck to proceed.10
On November 20 and 21, Burch made three entries (called “VPC reports”) in Holcim’s
incident reporting system. All three reports were categorized as “critical” and related to “water
pollution discharge.”11 In the first report, made on November 20, Burch noted that he “found [a
contractor] dumping soapy water into [the] pits,” which “created a foaming problem.”12 Burch
indicated that action was needed to stop the discharge, assigned the action to himself, and marked
the action complete on November 21.13 This report indicated that the plant was “compliant” under
the entry for “compliance result.”14 The second report, also made on November 20, stated that the
“[w]aste water being dumped in [the] pits” had increased the pH of the water in the “outfall.”15 On
November 21, Burch noted that he took action to counter the change in pH and marked the action
complete.16 This report also indicated that the plant was “compliant.”17 The third report, created
on November 21, stated that the “[e]xtra waste water being put in [the] Metairie pit system is
causing flooding in [the] parking lot and [ready-mix] truck route.”18 This report did not include
any action assignment and indicated that the plant was only “partially compliant.”19

8

R. Docs. 19-1 at 14; 23 at 4.
See R. Docs. 19-1 at 14 (“Boudrea[u]x told [Burch] this was an acceptable practice.”); 23 at 4 (“Boudreaux
said, ‘They can’t do that’ and that he would follow up.”).
10
R. Docs. 19-1 at 14; 23 at 4.
11
R. Docs. 19-1 at 15; 19-24; 23 at 4-5.
12
R. Doc. 19-24 at 2.
13
Id. at 3-4.
14
Id. at 4.
15
Id. at 7.
16
Id. at 8-9.
17
Id. at 9.
18
Id. at 11.
19
Id. at 12.
9

2

On November 30, Traci McManus, Holcim’s human resources manager for Burch’s area,
emailed Katina Ney, Holcim’s human resources manager, seeking approval to terminate Burch.
McManus told Ney: “There have been a number of performance issues with [Burch] that have
been addressed in meetings with [him] and his manager Steve Baird. He has been verbally coached
through all issues as they came up but has shown no improvement.”20 In response, Ney asked
whether “the performance issues [were] documented on either a note to file, coaching form or
email.”21 McManus answered that she “confirmed with [Sessa that] morning that [Baird] has all
meetings documented as reference notes,” and Ney approved the termination.22 That evening,
Sessa sent McManus a series of emails explaining and providing examples of the type of concerns
that Sessa said “continue[d] to surface with [Burch] and/or the operations he [was] overseeing.”23
The next morning, Burch attended an area managers meeting, at which he says he again expressed
concern about the dumping.24 Later that same day, Sessa informed Burch that he was being
terminated for performance issues.25 That evening, after Burch had been terminated, Sessa sent
McManus another email stating that, at the area managers meeting that morning, Burch had
“showed such disrespect and such an unwillingness to address the concern” that Baird had to
“intervene.”26
Burch brought this action in state court on March 21, 2024, alleging that Holcim terminated
him “because of his good faith disclosure of [Holcim’s] environmental violations,” in violation of

20

R. Doc. 19-26 at 3.
Id. at 2.
22
Id.
23
R. Docs. 19-13 at 1-3 (quote at 3); 19-14; 19-18.
24
R. Doc. 23 at 5.
25
R. Doc. 19-1 at 16.
26
R. Doc. 19-19.
21

3

the Louisiana Environmental Whistleblower Act (LEWA).27 Holcim removed the case to this
Court on May 7, 2024.28 Holcim now moves for summary judgment.
II.

PENDING MOTION
In support of its motion for summary judgment, Holcim argues that Burch cannot support

his claims under the LEWA. First, Holcim contends that Burch did not have a reasonable, good
faith belief that the dumping he observed and reported violated an environmental law because he
“fails to identify any specific law violated by the alleged practices,” admits, via the VPC reports,
that he believed the dumping was “compliant and partially compliant,” and has “indicated that he
did not report it as illegal until after termination of his employment.”29 Holcim then argues that
Burch cannot establish a prima facie case for retaliation under the McDonnell Douglas burdenshifting framework, specifically, says Holcim, because Burch has “failed to produce a shred of
evidence connecting the termination of his employment to his alleged protected activity,” aside
from temporal proximity.30 Holcim asserts that it had a legitimate, nonretaliatory reason for
terminating Burch, namely “performance issues,” which Burch cannot dispute.31 Finally, Holcim
asserts that Burch’s representation on his employment application that he left his prior employment
(at his own business which he closed in the fall of 2022) for a “better opportunity,” although he
“was not even aware of the opening for an Area Manager at Holcim at the time he closed his
company,” constitutes after-acquired evidence that would limit any back-pay award, because
Holcim would have terminated Burch had it known of this “misstatement” on his employment
application.32

27

R. Doc. 1-2 at 2.
R. Doc. 1.
29
R. Doc. 19-1 at 21-22.
30
Id. at 22.
31
Id. at 23-24 (quote at 23).
32
Id. at 24-25 (quote at 24).
28

4

In his opposition, Burch first argues that the LEWA does not require plaintiffs to identify
a particular law they believe to have been violated.33 Burch then contends that his reporting the
dumping to Boudreaux, who Burch says told him the practice was illegal, prior to entering the
VPC reports demonstrates that he had a good faith belief that the dumping violated an
environmental law.34 Burch next argues that “the timing of the discharge in relation to the
previously undocumented alleged performance problems, inconsistent statements by [Holcim]
regarding [the] existence of documentation of the alleged problems, and [Holcim]’s failure to
discipline similarly situated employees are all strong evidence of [a] causal connection” between
his reporting the dumping and his termination.35 Next, Burch contends that, while not sufficient
on its own, the temporal proximity in this case is “important evidence of pretext.”36 In addition,
Burch says that the conflicting testimony as to whether Burch’s supervisors ever communicated
dissatisfaction with his performance prior to his termination, the fact that much of Holcim’s
evidence of poor performance “was not made until right after Mr. Burch began his protected
conduct,”37 and “[t]he lack of contemporaneous documentation[, which] is even further
highlighted by [Holcim]’s inconsistent statements about whether such contemporaneous
documentation exists,” are also evidence of pretext.38 And, “on top of all this,” Burch argues that
“Holcim’s ‘preference for subjective bases for termination selection suggests ulterior purposes.’”39
Lastly, Burch asserts that there is “substantial doubt” regarding Holcim’s after-acquired evidence
argument, “because the answer ‘better opportunity’ is not false” and “Holcim provides no evidence

33

R. Doc. 23 at 6.
Id. at 7.
35
Id. at 8.
36
Id. at 11.
37
Id. at 11-14 (quote at 13-14). Burch also contests the admissibility and veracity of the evidence of his
purported performance issues predating the decision to terminate him. See id. at 12-13.
38
Id. at 14.
39
Id. at 14 (quoting Rowe v. Cleveland Pneumatic Co., 690 F.2d 88, 93 (6th Cir. 1982)).
34

5

or any policy or practice that would have led to termination” based on this purported
misrepresentation.40
In its reply, Holcim argues that Burch’s “vague, speculative assertion that [Holcim]’s
practice violated some hypothetical law” did not constitute a reasonable belief under the LEWA.41
Holcim then repeats its assertion that Burch lacked a good faith belief that Holcim violated the law
because Burch “reported the practice of transporting water was in fact legal” in the VPC reports
and “never claimed the ‘waste water’ incident was illegal while he worked at Holcim.”42 Holcim
again contends that “Plaintiff’s failure to identify evidence other than temporal proximity to
establish a causal connection is a fatal flaw to his LEWA claim.”43 Holcim then argues that it met
its burden of production to show a nonretaliatory reason for Burch’s termination under McDonnell
Douglas,44 which reason Burch has not rebutted as being pretextual because his “disagree[ment]
with [Holcim]’s assessment of his performance is irrelevant,” Burch admitted his responsibility
for a customer service complaint, and the record shows that Holcim had a “good faith belief that
[Burch] was not meeting its performance expectations after seven months of employment.”45
Finally, Holcim contends that it “clearly satisfied [its] burden” with respect to its after-acquired
evidence argument by producing the affidavits of Robert Doubleday and Katina Ney, who state
that they would not have hired Burch or would have terminated him had they known that he had
lied on his employment application.46

40

Id. at 15.
R. Doc. 24 at 5.
42
Id. at 5-6.
43
Id. at 6.
44
Id. at 6-8.
45
Id. at 8.
46
Id. at 8-10 (quote at 10) (discussing R. Docs. 19-29; 19-30).
41

6

III.

LAW & ANALYSIS
A. Summary Judgment Standard
Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the 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. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56. “Rule 56(c) 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.” Celotex Corp., 477 U.S. at 322. A
party moving for summary judgment bears the initial burden of demonstrating the basis for
summary judgment and identifying those portions of the record, discovery, and any affidavits
supporting the conclusion that there is no genuine issue of material fact. Id. at 323. If the moving
party meets that burden, then the nonmoving party must use evidence cognizable under Rule 56 to
demonstrate the existence of a genuine issue of material fact. Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive
law identifies which facts are material. Id. Material facts are not genuinely disputed when a
rational trier of fact could not find for the nonmoving party upon a review of the record taken as a
whole. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); EEOC
v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014). Unsubstantiated assertions, conclusory
allegations, and merely colorable factual bases are insufficient to defeat a motion for summary
judgment. See Anderson, 477 U.S. at 249-50; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994); Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary-judgment

7

motion, a court may not resolve credibility issues or weigh evidence. See Delta & Pine Land Co.
v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court
must assess the evidence, review the facts, and draw any appropriate inferences based on the
evidence in the light most favorable to the party opposing summary judgment. See Tolan v. Cotton,
572 U.S. 650, 656-57 (2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet,
a court only draws reasonable inferences in favor of the nonmovant “when there is an actual
controversy, that is, when both parties have submitted evidence of contradictory facts.” Little, 37
F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
After the movant demonstrates the absence of a genuine issue of material fact, the
nonmovant must articulate specific facts showing a genuine issue and point to supporting,
competent evidence that may be presented in a form admissible at trial. See Lynch Props., Inc. v.
Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A), (c)(2). Such
facts must create more than “some metaphysical doubt as to the material facts.” Matsushita, 475
U.S. at 586. When the nonmovant will bear the burden of proof at trial on the dispositive issue,
the moving party may simply point to insufficient admissible evidence to establish an essential
element of the nonmovant’s claim in order to satisfy its summary-judgment burden. See Celotex,
477 U.S. at 322-25; Fed. R. Civ. P. 56(c)(1)(B). Unless there is a genuine issue for trial that could
support a judgment in favor of the nonmovant, summary judgment must be granted. See Little, 37
F.3d at 1075-76.
B. Analysis
1. Louisiana Environmental Whistleblower Act
The LEWA forbids an employer from:
act[ing] in a retaliatory manner against an employee, acting in good faith, who …
[d]iscloses, or threatens to disclose, to a supervisor or to a public body an activity,
8

policy, practice of the employer, or another employer with whom there is a business
relationship, that the employee reasonably believes is in violation of an
environmental law, rule, or regulation.
La. R.S. 30:2027(A)(1). Where, as here, there is no direct evidence of retaliation, courts apply the
three-part McDonnell Douglas burden-shifting framework to claims under the LEWA. Menard v.
Targa Res. LLC, 2020 WL 3271992, at *2 (M.D. La. June 17, 2020), aff’d, 2023 WL 4763326
(5th Cir. July 26, 2023). Under the McDonnell Douglas framework, the plaintiff-employee has
the initial burden of establishing a prima facie case of retaliation by showing (1) that he engaged
in an activity protected by the LEWA, (2) that an adverse employment action occurred, and (3)
that a causal link existed between the protected activity and the adverse employment action. Id.
“If a plaintiff makes out a prima facie case, the burden of production shifts to the defendant to
‘articulate a legitimate, non-discriminatory reason for its decision to terminate him.’”

Id.

(quoting Breaux v. Rosemont Realty, 768 F. App’x 275, 278 (5th Cir. 2019)). If the defendant
meets its burden of production, the burden of persuasion shifts back to the plaintiff to show that
the defendant’s stated reason was pretextual. Id. The plaintiff’s ultimate burden is to show that
his protected action was the but-for cause of the adverse employment action. Id.
2. Prima facie case
Here, Burch has met his burden of establishing a prima facie case of retaliation. First,
Burch has presented sufficient evidence to show that he engaged in a protected activity under the
LEWA. Burch asserts that he verbally reported and objected to the dumping when he called Sessa
on November 20 and again at the area managers meeting on December 1.47 Burch also entered
three “critical” “water pollution discharge” VPC reports related to the dumping.48 These are
disclosures within the meaning of the LEWA. See, e.g., Menard v. Targa Res., L.L.C., 366 So. 3d

47
48

R. Doc. 23 at 4-5.
See R. Doc. 19-24.

9

1238, 1242-43 (La. 2023) (“First, the purpose of LEW[A] is to further the constitutional mandate
to protect the environment by protecting employees who act on their honest belief that an
environmental law has been violated. And second, a ‘broad interpretation’ of Section 2027 is
required to effectuate the constitutional and statutory directive and purpose. Merriam-Webster
defines ‘discloses’ as ‘to make known or public.’ That definition is expansive enough to include
a refusal to participate.” (internal citation omitted; emphasis added)).
To be a protected activity, the disclosure must have been made with a reasonable, good
faith belief that the practice violated an environmental law, rule, or regulation.

La. R.S.

30:2027(A)(1). This encompasses “both a subjective requirement – ‘good faith’ – and an objective
requirement – ‘reasonable belief.’” Borcik v. Crosby Tugs, L.L.C., 222 So. 3d 672, 675 (La. 2017).
The Louisiana supreme court has explained that, like the term “discloses,” see Menard, 366 So.
3d at 1242-43, “a broad definition of ‘good faith’ is necessary to uphold the purpose of the
[Louisiana Environmental Quality Act]” and clarified “that the term ‘good faith,’ as used in R.S.
30:2027, means an employee is acting with an honest belief that a violation of an environmental
law, rule, or regulation occurred.” Borcik, 222 So. 3d at 677. Considering the Louisiana supreme
court’s broad reading of the term “good faith,” this Court finds that there is at least a disputed issue
of material fact as to whether Burch reported the dumping of the transported process water with a
good faith belief that it was illegal. Holcim contends that Burch lacked a good faith belief that
Holcim was engaged in an environmental violation because he “admits” in the VPC reports that
the practice was “compliant and partially compliant.”49 In his deposition, Burch denied ever
describing the practice as “compliant” in the VPC reports.50 But, to the extent that these entries
call Burch’s deposition testimony into some doubt, the final VPC report does indicate that Burch

49
50

R. Doc. 19-1 at 21.
R. Doc. 23-3 at 205.

10

believed the practice was at least “partially” not compliant.51 Moreover, Burch asserts that he
complained of the practice “several times” after submitting the VPC reports, including at the
December 1 meeting.52 Holcim also contends that Burch “did not report [the dumping] as illegal
until after termination of his employment.”53 However, the LEWA only requires an employee to
“disclose” a practice he believes to violate an environmental law, rule, or regulation. La. R.S.
30:2027(A)(1). Burch reported and opposed the dumping while employed at Holcim and has
asserted that he understood the practice to be illegal for as long as he has worked in Louisiana,54
and that Boudreaux told him that the practice was illegal when he first inquired about it.55 Finally,
while Holcim argues that Burch “reported to the Louisiana Department of Environmental Quality
that [Holcim]’s water processes were compliant,”56 these reports pertain to the results of water
samples, not the practice of transporting and dumping the process water.57
As to the reasonableness requirement, Holcim argues that Burch “could not identify what
law Holcim was violating other than vaguely saying ‘the law of Louisiana,’”58 nor “any basis to
support his conclusion that [Holcim]’s activity was illegal.”59 Courts have consistently rejected
the notion that the LEWA requires an employee to identify a particular law he believes the
employer’s practice violates. See, e.g., Collins v. State ex rel. Dep’t of Nat. Res., 118 So. 3d 43,
49 (La. App. 2013) (“To require a plaintiff to know specifically what law is being violated would
seem to render the ‘good faith’ and ‘reasonably believe’ portions of the law superfluous.”);
Arceneaux v. Genesis Energy, LLC, 2016 WL 6680360, at *4 (E.D. La. Nov. 10, 2016); Roberts

51

R. Doc. 19-24 at 12.
R. Doc. 23 at 5.
53
R. Doc. 19-1 at 21-22.
54
R. Doc. 23-3 at 224.
55
R. Doc. 23 at 7.
56
R. Doc. 19-1 at 22 (citing R. Doc. 19-25).
57
See R. Doc. 19-25.
58
R. Doc. 19-1 at 14-15.
59
Id. at 21.
52

11

v. Fla. Gas Transmission Co., 447 F. App’x 599, 602 (5th Cir. 2011). And, when asked how he
reached the conclusion that the dumping he observed was illegal, Burch explained that he believes
it is against Louisiana law to “transport waste fluid generated at a facility to another facility without
a waste manifest, a permit, SDS Sheet, and placards on the truck.”60 Burch’s identification of
these specific requirements demonstrates that his belief that Holcim violated Louisiana law was
based on more than “some hypothetical consequence on the environment.” Roberts, 447 F. App’x
at 602. Burch also asserts that Boudreaux informed him that the practice was illegal,61 which Sessa
conceded would have provided a reasonable basis for Burch’s suspecting that the practice violated
an environmental law.62 Accordingly, there is sufficient summary-judgment evidence at this
summary-judgment stage that Burch’s belief that the dumping violated Louisiana law was
objectively reasonable.
Because it is undisputed that Burch experienced an adverse employment action when he
was terminated on December 1, 2023, the Court now looks to whether Burch established a causal
connection between the alleged protected activity and the adverse employment action. The close
temporal proximity – 12 days – between Burch’s first reporting the dumping (November 18, 2023)
and the start of the termination process (November 30, 2023) is sufficient, on its own, to establish
a causal connection for purposes of establishing a prima facie case.63 See, e.g., Brown v. WalMart Stores E., L.P., 969 F.3d 571, 578 (5th Cir. 2020) (“‘At the prima facie case stage, a plaintiff

60

R. Doc. 23-3 at 194, 223 (quote at 223).
See R. Doc. 23 at 7.
62
R. Doc. 23-2 at 205.
63
Holcim, citing Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802 (5th Cir. 2007), asserts that “the 5th
Circuit has held [that] temporal proximity alone is insufficient to prove a causal connection.” This is inaccurate. In
Strong, the Fifth Circuit “affirmatively reject[ed] the notion that temporal proximity standing alone can be sufficient
proof of but for causation.” Id. at 808 (emphasis added). However, close temporal proximity can, on its own, be
sufficient evidence of a causal connection for purposes of establishing a prima facie case. See Vargas v. McHugh,
630 F. App’x 213, 216 (5th Cir. 2015) (“Temporal proximity between the protected activity and the adverse action
can prove the causation element ‘when the protected act and the adverse employment action are very close in time.’”
(quoting Washburn v. Harvey, 504 F.3d 505, 511 (5th Cir. 2007)).
61

12

can meet his burden of causation simply by showing close enough timing between his protected
activity and his adverse employment action.’ However, ‘the protected act and the adverse
employment action must be very close in time to establish causation by timing alone.’ We have
held that a period of two-and-a-half months, a period of two months, and a period of six-and-ahalf weeks, are close enough to show a causal connection.” (alterations and internal citations
omitted) (first quoting Garcia v. Pro. Cont. Servs. Inc., 938 F.3d 236, 243 (5th Cir. 2019), then
quoting Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 948 (5th Cir.
2015)).
3. Legitimate, nonretaliatory reason for adverse employment action
Because the court finds that Burch has established a prima facie case of retaliation, the
burden of production shifts to Holcim to provide a legitimate, nonretaliatory reason for Burch’s
termination. Menard, 2020 WL 3271992, at *2. Holcim asserts that Burch was terminated for
performance issues, including “failure to ensure the efficient and effective loading and delivery of
product to meet customer expectations, failure to follow managerial instructions, failure to manage
plants safely, refusal to work as part of a team, and failure to properly manage his subordinates.”64
Holcim has met its burden by producing evidence of specific examples of poor performance.65
See, e.g., Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 231 (5th Cir. 2015) (“We have
repeatedly held that a charge of ‘poor work performance’ is adequate when coupled with specific
examples.”). The burden of persuasion thus reverts to Burch to show that Holcim’s stated
nonretaliatory reason is pretextual.

64

R. Doc. 19-1 at 22-23.
See R. Docs. 19-9; 19-10; 19-11; 19-12; 19-15; 19-16; 19-17; 19-20. Burch contends that the Court should
not consider these exhibits because they are not authenticated or sworn based on personal knowledge. R. Doc. 23 at
8-10. But Federal Rule of Civil Procedure 56 does not require that summary-judgment evidence be produced in
admissible form. “It is enough that the evidence can be made admissible for trial.” Poincon v. Offshore Marine
Contractors, Inc., 9 F.4th 289, 299 n.4 (5th Cir. 2021) (citing Celotex Corp., 477 U.S. at 324).
65

13

4. Pretext
Burch has pointed to sufficient summary-judgment evidence to raise a disputed issue
regarding Holcim’s purported reason for terminating Burch. Burch denies ever having been
coached or disciplined for the performance issues cited by Holcim, and claims that he was unaware
that his superiors were dissatisfied with his performance prior to his termination.66 “[W]hen an
employer opts to have a disciplinary system that involves warnings, failure to follow that system
may give rise to inferences of pretext.” Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 477
(5th Cir. 2015). The emails between Ney and McManus indicate that Holcim had a policy
requiring documentation of coaching or disciplinary actions prior to terminating an employee for
poor performance. On November 30, after Sessa sought approval from McManus to terminate
Burch, and McManus in turn sought approval from Ney, Ney asked McManus whether “the
performance issues [were] documented on either a note to file, coaching form or email.”67
McManus told Ney that she “confirmed with [Sessa] … that [Baird] has all meetings documented
as reference notes.”68 However, when questioned about this documentation during his deposition,
Sessa did not recall telling McManus that meetings between Baird and Burch had been
documented and denied knowledge that any such documentation existed.69 Thus, despite Ney’s
reliance on McManus’s assurance that there were records of Baird’s disciplining or coaching
Burch, no such records have surfaced.
Aside from forwarded email communications (none of which document coaching or
disciplinary meetings between Baird and Burch), the only documentation provided to McManus
consists of the emails sent by Sessa the evening of November 30, after the termination process had

66

R. Doc. 23 at 1, 4, 8.
R. Doc. 19-26 at 2.
68
Id.
69
R. Doc. 23-2 at 134-35.
67

14

begun, and one email sent on December 1, after Burch had been terminated, which discussed
events of a meeting held that morning, after Burch’s termination had already been approved.70
Where, as here, there is “a lack of contemporaneous documentation coupled with evidence that
such documentation should exist” and “such documentation was created after” the employee
engaged in a protected activity and the decision to terminate the employee was made, the record
contains “additional circumstantial evidence of pretext.” Burton, 798 F.3d at 240.
“The combination of suspicious timing with other significant evidence of pretext, can be
sufficient to survive summary judgment.” Id. (alteration omitted) (quoting Evans v. City of Hous.,
246 F.3d 344, 356 (5th Cir. 2001)). Thus, the close temporal proximity between Burch’s reporting
the dumping and his termination, the lack of documentation of coaching or discipline, and the
erroneous statement by McManus that such documentation existed – which Ney relied on in
approving Burch’s termination – are sufficient for Burch’s claim to survive summary judgment.
5. After-acquired evidence
Holcim seeks to invoke the after-acquired evidence doctrine to “limit any backpay award
from the date of [Burch]’s termination (December 1, 2023) until [Holcim] learned about [Burch]’s
dishonest employment application at his deposition (November 12, 2024).”71 Holcim learned
through Burch’s deposition that Burch was the owner of Marion Rayburn Construction and that
he ceased operations of that company in the fall of 2022 because he could no longer compete with
other contractors in the areas for bids.72 Holcim contends that Burch made a misstatement on his
application to work at Holcim when he answered “new opportunity” as his reason for leaving his
prior employment at Marion Rayburn Construction because Burch “was not even aware of the

70

R. Doc. 19-13 at 2.
R. Doc. 19-1 at 25.
72
R. Doc. 23-3 at 24-25.
71

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opening for an Area Manager at Holcim at the time he closed his company.”73 For the afteracquired evidence doctrine to apply, the defendant “must first establish that the wrongdoing was
of such severity that the employee in fact would have been terminated on those grounds alone if
the employer had known of it at the time of the discharge.” McKennon v. Nashville Banner Pub.
Co., 513 U.S. 352, 362-63 (1995). Holcim contends that it “would not have hired [Burch] had it
known about the misstatement in his employment application.”74 However, Holcim merely
assumes that this was a misrepresentation. There is no indication that the “new opportunity”
referred to was the area manager position at Holcim specifically. When Burch ceased operations
of his company, of which he was the sole employee, because he could no longer compete for bids,
he necessarily needed new employment. And when a “new opportunity” to work as an area
manager for Holcim presented itself, he took it. Thus, the Court agrees with Burch that it can “still
[be] true that [he] was looking for a new opportunity”75 even though he left his prior position by
closing his company. There is a genuine issue of material fact as to whether Burch made a
misrepresentation on his employment application, and Holcim therefore cannot establish that it
would not have hired him had it known of this purported misrepresentation.
IV.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that defendant’s motion for summary judgment (R. Doc. 19) is DENIED.
New Orleans, Louisiana, this 5th day of March, 2025.

________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE
73

R. Doc. 19-1 at 24.
Id. at 25.
75
R. Doc. 23-3 at 47.
74

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