Iturralde v. The Shaw Group, Inc.

Filing 122

ORDER & REASONS re dft's 100 motion for reconsideration of a partial denial of summary judgment and 111 motion to dismiss pla's disability discrimination claim, or in the alternative, motion in limine to preclude trial evidence regarding any acts of disability discrimination: for the reasons stated, the Court GRANTS dft's motions and resolves all outstanding claims in dft's favor; Judgment shall be entered for dft. Signed by Judge Sarah S. Vance on 4/30/2012. (RLL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

FERNANDO ITURRALDE

CIVIL ACTION

VERSUS

NO: 05-330

THE SHAW GROUP, INC.

SECTION: R

ORDER AND REASONS
Before the Court are two motions brought by defendant The
Shaw Group, Inc. (“Shaw”): (1) motion for reconsideration of a
partial denial of summary judgment;1 and (2) motion to dismiss
plaintiff Fernando Iturralde’s disability discrimination claim,
or in the alternative, motion in limine to preclude trial
evidence regarding any acts of disability discrimination.2 For
the following reasons, the Court grants defendant’s motions.

I.

BACKGROUND
This case arises out an employment dispute, the detailed

facts of which can be found in the Magistrate Judge’s Report and
Recommendation,3 adopted by Chief Judge Ralph E. Tyson of the

1

R. Doc. 100.

2

R. Doc. 111.

3

R. Doc. 78.

Middle District of Louisiana.4 The case was reassigned to this
Court following the death of Chief Judge Tyson.5 In an October
20, 2011 Scheduling Order, the Court indicated that nonevidentiary motion practice was closed.6
In the first of its motions,7 defendant seeks
reconsideration of Chief Judge Tyson’s partial denial of summary
judgment, dated March 24, 2009.8 The Judge adopted in extenso the
Magistrate Judge’s Report and Recommendation, which denied
summary judgment as to plaintiff’s claims for (1) termination
motivated by race, brought under 42 U.S.C. § 1981; (2)
termination motivated by plaintiff’s association with his
disabled wife and daughter, brought under the Americans With
Disabilities Act (ADA), 42 U.S.C. § 12112(b)(4); (3) conversion;

4

R. Doc. 83.

5

R. Doc. 94.

6

R. Doc. 99.

7

R. Doc. 100.

8

R. Doc. 83.
2

and (4) intentional infliction of emotional distress.9 Plaintiff
opposes the motion.10
In the second of its motions,11 defendant moves for
dismissal of plaintiff’s ADA claim based on his failure to
exhaust his administrative remedies by filing a charge of
discrimination with the Equal Employment Opportunity Commission
(EEOC), as required by the ADA. In the alternative, defendant
seeks a declaration precluding plaintiff from presenting trial
evidence regarding any acts of disability discrimination.
Plaintiff opposes this motion.12

II.

MODIFICATION OF THE SCHEDULING ORDER
Defendant filed both motions after non-evidentiary motion

practice had passed,13 so considering the motions would require
that the Court alter its October 20, 2011 Scheduling Order.

9

See R. Doc. 78. The Magistrate Judge also recommended,
and the District Court Judge awarded, partial summary judgment to
Shaw with respect to Iturralde’s: (1) failure to promote,
retaliation, and hostile work environment claims, brought under §
1981; (2) failure to promote and retaliation claims, brought
under the ADA; and (3) state law defamation claim. See R. Docs.
78, 83.
10

R. Doc. 102.

11

R. Doc. 111.

12

R. Doc. 113.

13

See R. Doc. 99 (Scheduling Order); R. Doc. 100 (motion
to reconsider); R. Doc. 111 (motion to dismiss).
3

Federal Rule of Civil Procedure 16(b) provides that scheduling
orders “may be modified only for good cause and with the judge's
consent.” Fed. R. Civ. P. 16(b). “What constitutes good cause
sufficient to justify the modification of a scheduling order
necessarily varies with the circumstances of each case.” 6A
Wright & Miller, Fed. Prac. & Proc. Civ. § 1522.2 (3d ed.)
(noting that, absent some showing of why an extension is
warranted, “the scheduling order controls”).
In its motion to reconsider, defendant contends that
“[r]econsideration of the first [J]udge’s ruling will help this
Court more fully appreciate plaintiff’s remaining claims[,]” and
that, in fact, reconsideration “will lead to a resolution of all
issues in this case, thereby eliminating the need for the
trial[.]”14 The Court’s October 20, 2011 Scheduling Order had set
trial for the week beginning March 19, 2012, but the trial date
had to be continued.15 The press of trial is therefore no longer
a factor. And while defendant’s motions were untimely raised,
plaintiff responded on the merits, thus permitting the Court to
consider both sides’ positions. Finally, if plaintiff’s failure
to exhaust administrative remedies before bringing suit under the
ADA strips the Court of subject matter jurisdiction over that

14

R. Doc. 100-1 at 3.

15

R. Doc. 116.
4

claim - a live question in the Fifth Circuit16 - then the Court
would be obligated to dismiss the claim notwithstanding the
untimeliness of the motion. See Fed. R. Civ. P. 12(h)(3);
E.E.O.C. v. Agro Distribution, LLC, 555 F.3d 462, 467 (5th Cir.
2009). For these reasons, and because it finds no prejudice to
plaintiff, the Court will take up defendant’s motions,
notwithstanding the Scheduling Order ending motions practice.17

III. MOTION TO DISMISS
A.

Standard
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff

must plead enough facts “to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547
(2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference that

16

See Part III, infra.

17

For examples of courts extending deadlines for filing
dispositive motions upon a showing of good cause, see Vulcan
Tools of Puerto Rico v. Makita U.S.A., Inc., 23 F.3d 564 (1st
Cir. 1994); Greenawalt v. Sun City West Fire Dist., 250 F. Supp.
2d 1200 (D. Ariz. 2003); Eischeid v. Dover Const., Inc., 217
F.R.D. 448 (N.D. Iowa 2003); Anderson v. City of Dallas, Texas,
210 F.R.D. 579 (N.D. Tex. 2002); Crane Const. Co. v. Klaus
Masonry, 71 F. Supp. 2d 1138 (D. Kan. 1999); Tran v. Captain
Glyn, Inc., 909 F. Supp. 727 (D. Haw. 1995); City of Chanute,
Kan. v. Williams Natural Gas Co., 743 F. Supp. 1437 (D. Kan.
1990), order aff'd on other grounds, 955 F.2d 641 (10th Cir.
1992).
5

the defendant is liable for the misconduct alleged.” Iqbal, 129
S. Ct. at 1949; Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011).
A court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff. Lormand v.
U.S. Unwired, Inc., 565 F.3d 228, 232–33 (5th Cir. 2009); Baker
v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). But the Court is not
bound to accept as true legal conclusions couched as factual
allegations. Iqbal, 129 S. Ct. at 1949–50.
A legally sufficient complaint must establish more than a
“sheer possibility” that plaintiff's claim is true. Id. It need
not contain detailed factual allegations, but it must go beyond
labels, legal conclusions, or formulaic recitations of the
elements of a cause of action. Twombly, 550 U.S. at 555. In other
words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will
reveal evidence of each element of the plaintiff’s claim.
Lormand, 565 F.3d at 255–57. If there are insufficient factual
allegations to raise a right to relief above the speculative
level, Twombly, 550 U.S. at 555, or if it is apparent from the
face of the complaint that there is an insuperable bar to relief,
Jones v. Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492
F.3d 325, 328 n.9 (5th Cir. 2007), the claim must be dismissed.

B.

Discussion
6

Shaw contends that because plaintiff has failed to exhaust
his administrative remedies, as required by the ADA,18 his
disability discrimination claim must be dismissed. Plaintiff does
not dispute that he has not exhausted his administrative
remedies, nor that exhaustion is an ADA requirement. Rather, he
argues that defendant is now estopped from raising its failureto-exhaust defense because it waited years after plaintiff filed
suit to bring this motion.
There is disagreement in the Fifth Circuit as to whether the
exhaustion requirement is merely a prerequisite to suit, and thus
subject to equitable defenses like waiver and estoppel, or
whether it is a requirement that implicates the Court’s subject
matter jurisdiction. Neither the Supreme Court nor the Fifth
Circuit sitting en banc has ruled that the exhaustion requirement
is subject to waiver or estoppel, and different Fifth Circuit
panels have disagreed about the answer. See Pacheco v. Mineta,
448 F.3d 783, 788 n. 7 (5th Cir. 2006) (collecting cases but not
resolving the split).

18

See EEOC v. Waffle House, Inc., 534 U.S. 279, 285-86
(2002) (“Congress has directed the EEOC to exercise the same
enforcement powers, remedies, and procedures that are set forth
in Title VII of the Civil Rights Act of 1964 when it is enforcing
the ADA's prohibitions against employment discrimination on the
basis of disability.... Accordingly, the provisions of Title VII
defining the EEOC's authority provide the starting point for our
analysis.”).

7

In this case, however, the Court need not take a position
because plaintiff does not have a valid waiver or estoppel
argument to make. Defendant clearly preserved its failure-toexhaust defense in its answer,19 and now rightfully seeks
dismissal under Rule 12(b)(6). See Taylor v. United States
Treasury Dep't, IRS, 127 F.3d 470, 478 n.8 (5th Cir. 1997) (“Rule
12(b)(6) forms a proper basis for dismissal for failure to
exhaust administrative remedies.”); 5C Wright & Miller, Fed.
Prac. & Proc. Civ. § 1360 (3d ed.) (“Rule 12(b)(6) also has been
used to make a motion to dismiss because of a plaintiff's failure
to exhaust administrative remedies[.]”). Rule 12(h) expressly
preserves Rule 12(b)(6) motions from Rule 12's waiver mechanism,
and thus, a defendant may bring a motion to dismiss based on
plaintiff’s failure to state a claim even after filing a
responsive pleading. See Fed. R. Civ. P. 12(b)(6), (h)(2); 5C
Wright & Miller, Fed. Prac. & Proc. Civ. § 1361 (3d ed.)
(discussing waiver under Rule 12 and collecting cases).
Plaintiff’s estoppel argument is equally without merit. To
invoke equitable estoppel against a private party, a litigant
must establish the four traditional elements of the doctrine: (1)
that the party to be estopped was aware of the facts; (2) that
the party to be estopped intended his act or omission to be acted
upon; (3) that the party asserting estoppel did not have

19

R. Doc. 6 at 3.
8

knowledge of the facts; and (4) that the party asserting estoppel
reasonably relied on the conduct of the other to his substantial
injury. Mangaroo v. Nelson, 864 F.2d 1202, 1204 (5th Cir. 1989).
Plaintiff has not established any of the above elements, nor even
attempted to do so. The third element poses the most obvious
hindrance since plaintiff, responsible for exhausting his
administrative remedies, obviously knew that he had failed to do
so when he filed suit. The Court is aware of no law indicating
that, absent a valid waiver or estoppel argument, a defendant may
lose his right to move for dismissal based solely on the passage
of time between his responsive pleading and motion to dismiss.
Cf. Land v. Prudhomme Oil Co., 3 F.R.D. 377 (W.D. La. 1944) (“A
motion to dismiss because of failure to state a claim upon which
relief can be granted is always timely, even just before
trial.”). As plaintiff has failed to cite any law to support his
position, his wrongful termination claim under the ADA is hereby
dismissed.

IV.

MOTION FOR RECONSIDERATION

A.

Standard
Federal Rule of Civil Procedure 54(b) provides that an order

that adjudicates fewer than all the claims among all the parties
“may be revised at any time” before the entry of a final
judgment. Fed. R. Civ. P. 54(b). As Rule 54 recognizes, a
9

district court “possesses the inherent procedural power to
reconsider, rescind, or modify an interlocutory order for cause
seen by it to be sufficient.” Melancon v. Texaco, Inc., 659 F.2d
551, 553 (5th Cir. 1981). Although the district court’s
discretion in this regard is broad, see Calpetco 1981 v. Marshall
Exploration, Inc., 989 F.2d 1408, 1414-15 (5th Cir. 1993);
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185
(5th Cir. 1990), abrogated on other grounds, Little v. Liquid Air
Corp., 37 F.3d 1069 (5th Cir. 1994) (en banc), it is exercised
rarely to avoid the perpetual reexamination of orders and the
resulting burdens and delays. See generally 18b Wright & Miller,
Fed. Prac. & Proc. Juris. § 4478.1 (2d ed.).
The general practice of this Court has been to evaluate
motions to reconsider interlocutory orders under the same
standards that govern Rule 59(e) motions to alter or amend a
final judgment.20 In this case, however, the Court deems the more
liberal Rule 54 standard appropriate for several reasons: First,
the Court is not reexamining its own Order in this case, and it
would have to spend substantial time preparing for trial even if
the motion were not taken up. Second, although the District Court
Judge adopted the Magistrate Judge’s Report, the analysis was
that of the Magistrate rather than an Article III judge and
20

See, e.g., Lacoste v. Pilgrim Int'l, 2009 U.S. Dist.
LEXIS 46752, at *23 (E.D. La. 2009); Rosemond v. AIG Ins., 2009
U.S. Dist. LEXIS 37571, at *6 (E.D. La. 2009).
10

therefore may be entitled to less deference. Third, the summary
judgment motion was decided three years ago, and judicial
developments in the interim can provide a disposition more in
line with modern precedents - even if the Magistrate Judge’s
analysis does not include the “manifest error of law” required by
Rule 59. Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005)
(describing the Rule 59 standard).

B.

Louisiana Employment Discrimination Law
Plaintiff did not affirmatively state the sources of law

under which he seeks relief in his complaint, and Shaw’s original
motion for summary judgment referred to the ADA and cases
interpreting that statute.21 In his opposition, plaintiff also
cited law interpreting the ADA, and never once mentioned the
Louisiana Employment Discrimination Law (LEDL), La. R.S. §
23:301, et seq., as an additional ground for relief. In a
footnote to his Report, the Magistrate Judge noted the following:
Plaintiff did not allege a claim or make reference to [the
LEDL]. Nor did the plaintiff cite or discuss these statutes
in his opposition memoranda. Plaintiff cited federal law
related to his race discrimination claims and the ADA
provision prohibiting associational disability
discrimination. Consequently, this report does not address
any claim under the [LEDL].22

21

R. Doc. 61.

22

R. Doc. 78 at 4 n.6.
11

Plaintiff now points to the last sentence above and contends that
the Magistrate allowed an LEDL claim to withstand summary
judgment, since defendant did not move on that ground. Defendant,
meanwhile, points to the first two sentences in the quoted
passage and argues that the Magistrate clearly held that the
plaintiff had failed to clarify the nature of his claims despite
ample opportunity to do so, and therefore, could not pursue
relief under the LEDL. The Court finds that the defendant’s
reading of the Magistrate Judge’s Report is the correct one, that
plaintiff had multiple opportunities to make plain his asserted
grounds for relief, and that to allow plaintiff to alter his
theory of recovery now would be unreasonable.
Even if an LEDL claim had survived to this date, however, it
would be a losing one. The ADA clearly forbids covered entities
from “excluding or otherwise denying equal jobs or benefits to a
qualified individual because of the known disability of an
individual with whom the qualified individual is known to have a
relationship or association[.]” 42 U.S.C. § 12112(b)(4). The LEDL
conspicuously lacks comparable language: Indeed, the forbidden
practices delineated in the relevant statutory section concern
only workplace discrimination against a “qualified disabled
person.” La. R.S. § 23:323(B)(1) - (10). Plaintiff has provided
no case indicating that the federal protection against
“association disability” discrimination extends to the LEDL, nor

12

has this Court located such a case. Not only, then, would the
maxim expressio unius est exclusio alterius seem to apply here,
but so would the federal policy of judicial restraint when
interpreting state law. See, e.g., Johnson v. Sawyer, 47 F.3d
716, 729 (5th Cir. 1995) (en banc) (“We have long followed the
principle that we will not create innovative theories of recovery
or defense under local law, but will rather merely apply it as it
currently exists.”) (internal quotations omitted); 19 Wright &
Miller, Fed. Prac. & Proc. Juris. § 4507 (2d ed.) (“Nor is it the
function of the federal court to expand the existing scope of
state law.”).

C.

Intentional Infliction of Emotional Distress
In order to prove intentional infliction of emotional

distress under Louisiana law, a plaintiff must prove that (1) the
conduct was extreme and outrageous; (2) the emotional distress
suffered was severe; and (3) the defendant desired to inflict
severe emotional distress or knew that severe emotional distress
would be certain or substantially certain to result. White v.
Monsanto, 585 So. 2d 1205, 1209 (La. 1991). The behavior must be
“so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized community.” Id.
Indeed, “disciplinary action and conflict in a pressure-packed
13

workplace environment, although calculated to cause some degree
of mental anguish, is not ordinarily actionable.” Id. at 1210.
In this case, neither the alleged racial harassment nor the
circumstances surrounding plaintiff’s termination rise to the
requisite level of outrageousness. As to the former, plaintiff’s
allegations of racial harassment include a handful of comments
that Tim Barfield, a superior at Shaw, uttered over two years.
The primary allegations concern Barfield’s introductions of
Iturralde as “Fernando, ... the Cuban,” references to Iturralde’s
having come to the United States by boat, and comments that
Iturralde’s recently deceased brother was a famous jai alai
coach23 (apparently, he was actually a softball coach). Although
in poor taste, these remarks fall well short of the “deliberate,
repeated harassment over a period of time” that typify workplace
IIED claims. White, 585 So. 2d at 1210; see also McCoy v. City of
Shreveport, 492 F.3d 551 (5th Cir. 2007) (affirming summary
judgment for the defendant where the plaintiff, a black city
police officer, suffered harassment by a white subordinate who
“twice [threw] wadded-up paper in her face and [] repeatedly
enter[ed] her office only to stare at her and laugh in mocking
derision”); Baker v. FedEx Ground Package System Inc., 278 Fed.
Appx. 322 (5th Cir. 2008) (affirming the denial of an IIED claim
when plaintiff asserted that a coworker subjected her to “several

23

R. Doc. 69-1 at 18-19.
14

racially insensitive comments” based on her race, including
remarks that “whites rule” and that “blacks cannot report to
whites”); Charles v. Jetblue Airways Corp., 2009 U.S. Dist. LEXIS
13341 (E.D. La. 2009) (racial slurs from fellow employees
insufficient to sustain IIED claim); Beaudoin v. Hartford Acc. &
Indem. Co., 594 So. 2d 1049 (La. App. 3d Cir. 1992) (evidence
that employer called an employee fat and stupid, cursed, shouted,
and denigrated women did not rise to the level of extreme and
outrageous conduct).
Neither may plaintiff’s allegations surrounding the
circumstances of his termination suffice to save his IIED claim
from summary judgment. Iturralde alleges that Shaw executives
knew of his wife’s and daughter’s health problems and the rising
medical bills that the company was paying. He further alleges
that “defendant played upon this with the expectation that the
audit would reveal problems with plaintiff’s expense reports, and
this is what constitutes extreme and outrageous conduct.” As will
be discussed infra, plaintiff has failed to create a genuine
issue of fact that defendant’s stated reasons for terminating
Iturralde were anything but genuine. Thus, Iturralde has not
created issues of fact sufficient for a jury to find that Shaw
even acted wrongfully - much less in an “extreme and outrageous”
manner. Summary judgment is therefore appropriate.

15

D.

Conversion
Iturralde alleges that, following his termination from Shaw,

the company held on to various documents, books, and other
materials that he had brought into his office, finally returning
them in July 2007. He contends that the wrongful withholding
constituted a conversion of his property.
“A conversion is an act in derogation of the plaintiff's
possessory rights and any wrongful exercise or assumption of
authority over another's goods, depriving him of the possession,
permanently or for an indefinite time.” Talley v. Livingston
Parish Sheriff's Office, 2010 La. App. Unpub. LEXIS 233, at *7
(La. App. 1st Cir. 2010) (citing Quealy v. Paine, Webber, Jackson
& Curtis, Inc., 475 So. 2d 756, 760 (La. 1985)). Conversion
requires not a conscious wrongdoing, but merely an intent to
exercise dominion or control over goods that is inconsistent with
another's rights. La. State Bar Ass'n v. Hinrichs, 486 So. 2d
116, 121 (La. 1986)). As in Iturralde’s case, a conversion need
not require a wrongful taking, but can exist when possession is
merely withheld from the owner or possessor. Dual Drilling Co. v.
Mills Equip. Invs., Inc., 721 So. 2d 853, 857 (La. 1998)
(describing seven circumstances of conversion).
Under Louisiana law, “[t]he traditional damages for
conversion consist of the return of the property itself, or if
the property cannot be returned, the value of the property at the
16

time of the conversion.” Quealy, 475 So. 2d at 761. A defendant
may also be liable for mental anguish and inconvenience arising
from the lost use of the property converted. La. Specialty Hosp.,
LLC v. Adams, 2010 U.S. Dist. LEXIS 91957, at *6 (E.D. La. 2010)
(citing Broussard, Bolton, Halcomb & Vizzier v. Williams, 796 So.
2d 791, 796 (La. App. 3d Cir. 2001)); Navratil v. Smart, 400 So.
2d 268, 273 (La. App. 1st Cir. 1981) (awarding $500 in damages
for shock, humiliation, and inconvenience); Boisdore v. Int'l
City Bank & Trust Co., 361 So. 2d 925, 932-33 (La. App. 4th Cir.
1978) (collecting cases in which plaintiff has proven mental
anguish as damages from a conversion).
Shaw argued in support of its summary judgment motion that
plaintiff introduced no evidence that he suffered any damages as
a result of Shaw’s alleged conversion.24 While Iturralde
contended in his opposition that he suffered inconvenience and
loss of use of these materials,25 he submitted no summary
judgment evidence corroborating the claim. Indeed, his supporting
affidavit indicates that he suffered various harms “as a result
of Shaw's harassment and retaliation,”26 but nothing about
damages attributable to Shaw’s alleged conversion of his

24

R. Doc. 74 at 8.

25

R. Doc. 70 at 28.

26

R. Doc. 69-7 at 4.
17

property. While Louisiana courts do not discuss conversion in
terms of its constituent elements, plaintiff nevertheless must
show damages to survive defendant’s motion for summary judgment.
Cf. Haro v. Ibarra,

180 Cal. App. 4th 823, 835, (Cal. App. 2d

Dist. 2009) (damages an element of conversion in California);
Trifad Entertainment, Inc. v. Anderson, 36 P. 3d 363, 369 (Mont.
2001) (damages an element of conversion in Montana); Urbanek v.
All State Home Mtge. Co., 898 N.E. 2d 1015, 1021 (Ohio App. 8th
Dist. 2008) (damages an element of conversion in Ohio); United
Mobile Networks, L.P. v. Deaton, 939 S.W. 2d 146, 147 (Tex. 1997)
(damages an element of conversion in Texas); Cross v. Berg Lumber
Co., 7 P. 3d 922, 929-30 (Wyo. 2000) (damages an element of
conversion in Wyoming). Because he failed to do so, the Court
grants summary judgment on his conversion claim.

E.

Termination Based on Race
Plaintiff’s unlawful termination claim, brought under 42

U.S.C. § 1981, also originally survived summary judgment. In his
Report, the Magistrate Judge ostensibly conflated plaintiff’s
allegations of wrongful termination based on race (under § 1981),
and wrongful termination based on disability (under the ADA). The
Report held that there was sufficient summary judgment evidence
to support an inference that a Shaw superior with discriminatory

18

intent played a role in the decision to fire plaintiff.27 This,
coupled with “the evidence regarding Barfield’s comments about
plaintiff’s race and his awareness of the disabling conditions of
the plaintiff’s family” and “the timing and circumstances
surrounding the audit of the plaintiff’s expense reports and his
termination” were apparently deemed sufficient for both
plaintiff’s § 1981 claim and ADA claim to survive. With
plaintiff’s ADA claim dismissed as a matter of law in this Order,
and because the evidence supporting race discrimination must be
examined independently of that supporting disability
discrimination, the Court will examine only the evidence
supporting plaintiff’s § 1981 claim.
The standards for race discrimination claims brought under
Title VII are the same as under § 1981. Flanagan v. Aaron E.
Henry Cmty. Health Servs. Ctr., 876 F.2d 1231, 1233-34 (5th Cir.
1989). Thus, when a plaintiff attempts to prove allegations of
discrimination through indirect or circumstantial evidence, the
Court considers the claim under the familiar burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), as modified in Desert Palace, Inc. v. Costa, 539 U.S. 90
(2003), and Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th
Cir. 2004).

27

R. Doc. 78 at 27.
19

Under the modified McDonnell Douglas approach, the plaintiff
has the initial burden of making a prima facie showing of
discrimination. Abarca v. Metro. Transit Auth., 404 F.3d 938, 941
(5th Cir. 2005); Rachid, 376 F.3d at 312. A plaintiff satisfies
this burden by showing that (1) he is a member of a protected
group; (2) he was qualified for the position; (3) he suffered an
adverse employment action; and (4) he was treated differently
from those outside the protected class. See Frank v. Xerox Corp.,
347 F.3d 130, 137 (5th Cir. 2003); Wheeler v. BL Dev. Corp., 415
F.3d 399, 405 (5th Cir. 2005).
Here, Shaw has apparently conceded that Iturralde has made a
prima facie showing of discrimination. Thus, the burden shifts to
the defendant to articulate a “legitimate, nondiscriminatory
reason” for the adverse employment decision. Culwell v. City of
Fort Worth, 468 F.3d 868, 873 (5th Cir. 2006). This burden “is
one of production, not persuasion ... [and] can involve no
credibility assessment.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000). If a defendant can produce such
evidence, the presumption of discrimination dissolves. Id. at
142-43.
Shaw has satisfied its burden here, contending that
Iturralde was fired for fraudulent accounting of his business
expenses. The presumption therefore falls away, Alvarado v. Tex.
Rangers, 492 F.3d 605, 611 (5th Cir. 2007), and the burden shifts
20

back to the plaintiff to prove either “(1) that the defendant's
reason is not true, but is instead a pretext for discrimination
(pretext alternative); or (2) that the defendant's reason, while
true, is only one of the reasons for its conduct, and another
motivating factor is the plaintiff's protected characteristic
(mixed-motives alternative).” Rachid, 376 F.3d at 312 (internal
quotation marks omitted). When taking the pretext route, a
plaintiff can meet his burden and survive summary judgment “by
producing circumstantial evidence sufficient to create a fact
issue as to whether the employer's nondiscriminatory reasons are
merely pretext for discrimination.” Machinchick v. PB Power,
Inc., 398 F.3d 345, 354 (5th Cir. 2005). Ultimately, the question
is “whether the employer intentionally discriminated, and proof
that the employer's proffered reason is unpersuasive, or even
obviously contrived, does not necessarily establish that the
plaintiff's proffered reason is correct.” Reeves, 530 U.S. at 147
(internal quotations and citations omitted). In deciding the
question, the Court is to consider “the strength of the
plaintiff's prima facie case, the probative value of the proof
that the employer's explanation is false, and any other evidence
that supports the employer's case[.]” Id. at 148. The Fifth
Circuit is clear that “there will be cases where a plaintiff has
both established a prima facie case and set forth sufficient

21

evidence to reject the defendant's explanation, yet ‘no rational
factfinder could conclude that the action was discriminatory.’”
Price v. Fed. Express Corp, 283 F.3d 715, 720 (5th Cir. 2002)
(quoting Reeves, 530 U.S. at 148-49). In such case, summary
judgment is appropriate. Id.
The undisputed facts are as follows: By late March 2004,
Iturralde had fallen behind on his company credit card
payments,28 and his card was eventually cancelled. Iturralde
began pressuring the Shaw travel department to reinstate his
card,29 which raised red flags among Shaw personnel.30 Shaw’s
internal audit group audited Iturralde’s expense reports for the
preceding year and determined that some of the expenses were for
personal items for which Iturralde was not entitled to
reimbursement.31 The group submitted a report to Shaw’s
executives indicating the personal charges that plaintiff had
submitted, at least one of which was billed to a client.32 The
audit group also noted that the headers of several receipts

28

R. Doc. 61-10 at 24-25; 61-11 at 1; 61-15 at 21.

29

R. Doc. 61-10 at 24-25; 61-11 at 1; 61-15 at 21.

30

R. Doc. 61-15 at 21.

31

R. Doc. 61-15 at 7-9. It is not definitively clear from
this record who ordered the audit, but the evidence points to
Scott LaGrange, the division’s CFO. R. Doc. 61-15 at 21, 37.
There is no evidence in the record that Barfield was involved in
the decision to audit Iturralde’s expense reports.
32

R. Doc. 61-15 at 6, 13, 16; 61-16 at 10.
22

included with Iturralde’s expense reports had been torn off apparent evidence that Iturralde was trying to conceal the nature
of the charges for which he sought reimbursement.
Iturralde’s supervisor’s supervisor, Malcolm Jarrell,
believed the information warranted Iturralde’s termination,33 and
he informed Human Resources of his position. Barfield, the only
Shaw employee as to whom Iturralde attempts to present evidence
of discriminatory intent, was informed of Jarrell’s desire to
terminate Iturralde by the president of Shaw Environmental and
Infrastructure, Diana Ferguson.34 Although Barfield admits that
he could have prevented the termination,35 he indicated that he
would not do so and asked only that Iturralde receive an
opportunity to explain the auditors’ findings.36 Jarrell never
spoke with Barfield about the termination, but merely confirmed
through Human Resources that Barfield would not oppose it.37
Indeed, the reason Barfield was told in the first place of
Jarrell’s intention to fire Iturralde is because Ferguson
perceived Barfield to be partial to Iturralde.38

33

R. Doc. 61-16 at 6-7.

34

R. Doc. 61-16 at 13.

35

R. Doc. 61-13 at 14.

36

R. Doc. 61-16 at 13.

37

R. Doc. 61-16 at 7.

38

R. Doc. 61-16 at 13.
23

Malcolm Jarrell, along with another Shaw Group superior, met
with Iturralde to ask him about the questionable expense
reports.39 Iturralde admitted then and admits now that two
expense reports contained at least three personal charges
totaling more than $1500 (including a vacuum cleaner, four new
automobile tires, and automobile maintenance purchased on his
company credit card), as well as duplicate entries for airfare
and hotel accommodations.40 Plaintiff contended and continues to
contend that his secretary submitted these expense reports, which
plaintiff never signed,41 without his approval. Jarrell did not
believe Iturralde’s excuse, given his apparent handwriting on the
receipts and reports, the multiple dubious expenses, and the
receipts whose headers had been removed before their submission
for reimbursement.42 At that meeting, after giving Iturralde an
opportunity to explain the charges, Jarrell informed him that he
was being terminated.43
Iturralde contends, notwithstanding the evidence of his
improper requests for reimbursement, that Shaw’s stated reasons

39

R. Doc. 61-16 at 9-11.

40

6-7;

R. Doc. 61-4 at 10-12; 61-8 at 3-6, 7-8; 61-9 at 2-4,
61-15 at 22, 35; 61-16 at 9-11.

41

R. Doc. 69-8 at 2; 69-9 at 3.

42

R. Doc. 61-16 at 7, 9-10.

43

R. Doc. 61-16 at 7, 9-10.
24

are mere pretext for race discrimination. Specifically, Iturralde
argues that the expense reports were submitted by his secretary
before he had the opportunity to review them for accuracy; that
the audit group never questioned him during their investigation,
nor sought to determine why the expense reports did not bear his
signature; that the handwriting on the receipts and expense
reports was not actually his own; and that he offered to
reimburse Shaw for the improper expenses.
Considering “the strength of the plaintiff's prima facie
case, the probative value of the proof that the employer's
explanation is false, and any other evidence that supports the
employer's case[,]” Reeves, 530 U.S. at 148, the Court finds that
plaintiff has failed to present sufficient evidence for his claim
to survive summary judgment. First, there is no evidence of
pretext. Iturralde does not dispute that several personal
expenses ineligible for reimbursement were submitted in violation
of company policy. Other Shaw personnel, including Caucasian
employees, who have reported fraudulent expenses in the past have
similarly been terminated.44 And even if the audit group,
Jarrell, and others were incorrect in their belief that Iturralde
intended to seek reimbursement to which he was not entitled, this
alone would not be enough to create an issue of fact to survive
summary judgment. See Mayberry v. Vought Aircraft Co., 55 F.3d

44

R. Doc. 61-12 at 10; 61-16 at 7.
25

1086, 1091 (5th Cir. 1995) (“Even an incorrect belief that an
employee's performance is inadequate constitutes a legitimate,
nondiscriminatory reason.”).
Moreover, even if plaintiff had presented evidence
sufficient to create an issue of fact as to whether Shaw’s stated
reasons for termination were pretextual (which he has not), a
rational factfinder could not conclude that race discrimination
was a factor in Shaw’s firing decision. See Price, 283 F.3d at
720; Reeves, 530 U.S. at 148-49. This is so for two reasons.
First, the evidence does not create a triable issue of fact that
Barfield was responsible for Iturralde’s firing. The Magistrate
Judge relied on, and plaintiff now points to, statements in
Jarrell’s affidavit45 (“I did not speak with Tim Barfield about
the termination decision. I confirmed through [H]uman [R]esources
that Mr. Barfield would not impede the termination decision.”);
Ferguson’s affidavit46 (“I informed Tim Barfield of Mr. Jarrell’s
anticipated termination of Mr. Iturralde ... [and] Mr. Barfield
said he would not [obstruct the termination], but he asked that
Mr. Iturralde be given the opportunity to explain the audit
findings.”); Champney’s deposition47 (in which he admits speaking

45

R. Doc. 61-16 at 7.

46

R. Doc. 61-16 at 13.

47

R. Doc. 61-15 at 18-19, 21, 27, 32, 36 (deposition
pages submitted out of order).
26

with Barfield about Jarrell’s intention to fire Iturralde); and
Barfield’s deposition48 (in which he admits that he believes he
could have rehired Iturralde). This evidence establishes only
that Barfield was aware of Jarrell’s decision to fire Iturralde
before Iturralde learned of his fate, and that Barfield pledged
not to pose a hindrance; it does not support a conclusion that
Barfield was in any way responsible for reaching the decision
himself.
Second, there is insufficient evidence of racially49
discriminatory intent. The nature of Barfield’s comments, while
tactless, did not evidence clear racial animus. Indeed, the
remarks about plaintiff arriving in the United States on a boat,
and about being the brother of a famous jai alai coach, were
apparently made in jest and without any manifest ill intent.
Aside from these few and isolated remarks, the evidence
overwhelmingly indicates that Barfield was actually quite fond of
Iturralde and that, at least until Iturralde’s termination, the
affection was reciprocated. Barfield had authorized a $33,000

48

R. Doc. 61-13 at 14.

49

The Supreme Court has observed that discrimination
based “solely on the place or nation of [a plaintiff's] origin”
is not actionable under § 1981. St. Francis College v.
Al-Khazraji, 481 U.S. 604, 613 (1987). And although the “line
between national origin discrimination and racial discrimination
is an extremely difficult one to trace[,]” Bullard v. OMI
Georgia, Inc., 640 F.2d 632, 634 (5th Cir. 1981), Iturralde has
presented no evidence of his race; indeed, his affidavit states
only that he is “of Cuban national origin.” R. Doc. 69-7.
27

raise for Iturralde in the fall of 2003, and consented to
Iturralde’s enrollment in the ExecuCare supplemental health
benefits program - a benefit that others of commensurate position
within the Shaw heirarchy did not enjoy.50 In fact, the
uncontroverted evidence indicates that Barfield was informed of
Iturralde’s termination before Iturralde himself because Barfield
was seen as partial to Iturralde, and Shaw personnel feared that
Barfield would attempt to obstruct the termination.51
As there is no evidence of pretext, racial animus, or
opportunity to act on that animus, the Court grants summary
judgment on plaintiff’s § 1981 claim.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s
motions to reconsider and to dismiss, and resolves all
outstanding claims in defendant’s favor. Judgment shall be
entered for the defendant.

New Orleans, Louisiana, this 30th day of April, 2012
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

50

R. Doc. 61-12 at 17; 61-13 at 22; 61-16 at 1, 4.

51

R. Doc. 61-16 at 13.
28