Butler v. Exxon Mobil Corporation

Filing 155

ORDER & REASONS granting 118 Motion for Summary Judgment. Signed by Honorable Eldon E. Fallon on 1/20/12. (ALA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

BEN BUTLER
VERSUS
EXXON MOBIL CORPORATION

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CIVIL ACTION
NO. 07-386
SECTION "L"(2)

ORDER & REASONS
The Court has pending before it Defendant Exxon Mobil Corporation’s Motion for
Summary Judgment (Rec. Doc. 118). The Court has reviewed the briefs and the applicable law
and now issues this Order and Reasons.
I.

Background
This employment case arises from Plaintiff Ben Butler’s employment with Defendant

Exxon Mobil Corporation. The broad parameters of the employment relationship are not
seriously disputed. Plaintiff began working for Defendant as a machinist in 1976 at a facility in
Baton Rouge. Due to Plaintiff’s allergic reactions to certain chemicals, Defendant reassigned
him as a materials coordinator in 1988-89 which reduced his exposure. As a materials
coordinator, Plaintiff took requests and ordered parts and supplies used in the day-to-day
operation of the facilities. In 2004, Defendant undertook a facility-wide maintenance functions
consolidation. The parties do not dispute that the 2004 consolidation was a plant-wide program
intended to maximize synergy across different divisions and to eliminate redundant costs and
work. Through that reorganization, Plaintiff was reassigned to a Special Purpose Machinery
Group (SPM Group), which physically operated out of the Refinery portion of the Baton Rouge

facility. Although the number of materials coordinators was reduced, Plaintiff remained a
materials coordinator.
Plaintiff alleges that throughout this period of employment, he was discriminated against
on the basis of his race, disabilities, and eventually his age. During that period he filed a number
of discrimination charges against Defendant. In a thorough prior Order and Reasons, Judge
Tyson reviewed the allegations of prior discrimination and held that Plaintiff’s claims arising out
of that past conduct are time-barred. The Order and Reasons provided that:
IT IS ORDERED that defendant’s Motion for Partial Summary Judgment (Doc.
No.79) is GRANTED and the following claims are dismissed with prejudice:
1.
All Title VII, ADA and ADEA claims (including without
limitation, discrimination, harassment, and/or retaliation claims)
based on any alleged unlawful conduct prior to December 15,
2004.
2.
All race claims under Section 1981 for denied promotion based on
alleged denied promotions prior to May 2, 2006.
3.
All other race claims under Section 1981 based on alleged
discrimination, harassment, and/or retaliation prior to May 2,
2003; and
4.
All claims brought under the Louisiana Employment
Discrimination Law, La. R.S. 23:301, et seq. (race, age, and/or
disability), based on alleged unlawful conduct prior to May 2,
2006.
(Rec. Doc. 93 at 27).
The actionable allegations of race, age, and disability discrimination in the present
Complaint relate to the time period of 2003 to 2006. During that period, Plaintiff alleges a small
array of discriminatory conduct, harassment, or retaliatory job consequences. Plaintiff alleges
that a non-supervisor yelled at him and, after Plaintiff reported that to human resources, the
individual said he would “get” Plaintiff and called him a “black bastard.” Plaintiff alleges that
his supervisor told him that Plaintiff was “faking” his health symptoms and complaints and on

2

one occasion told Plaintiff to “get your black ass out of my office.” (However, Plaintiff admits
that after reporting a discrimination complaint to Human Resources on June 30, 2005, he did not
mention the “get your black ass out of my office” comment during the investigation that
followed.)

Plaintiff also alleges that he was subject to unwarranted complaints about the

quality of his work and unnecessary job scrutiny and criticism, all of which had a discriminatory
motive.
Plaintiff also characterizes the circumstances surrounding his retirement as the result of
age, race, and disability discrimination. Plaintiff presents evidence that on June 30, 2005, he
reported discrimination to Defendant’s Human Resources Department. On July 7, 2005, Plaintiff
presented a letter from his treating physician that his medical condition was being worsened by
exposure to chemicals in the workplace and by job-related stress. On July 18, Plaintiff again
complained of discrimination or harassment based on his medical disabilities. On July 19, 2005,
Plaintiff transmitted to Defendant a letter from his treating physician that Plaintiff was medically
unable to work due to his allergies and stress. Shortly after receipt of that letter, Defendant’s
Medicine and Occupational Health Department (MOHD) placed Plaintiff on short-term medical
disability leave.
Plaintiff’s treating physician submitted additional correspondence in late November,
2005, informing Defendant that Plaintiff could return to work with restrictions of no chemical
exposure and “no exposure to personality stress in the immediate work environment.” Plaintiff
reported to work on November 28, 2005, but did not resume work and in fact did not work
another day for Defendant. The parties dispute the subsequent sequence of events. According to
Defendant, the MOHD did not immediately clear Plaintiff for return to work, but sought

3

clarification from the physician regarding how the stress restriction could be applied. The
treating physician responded that Plaintiff was medically unable to return to his specific SPM
group, but could work in some other position. Defendant contends that it conducted a job search
to determine if there was another position available for Plaintiff in light of his qualifications and
his physician’s medical restrictions, but found no available position. Therefore, Defendant
helped Plaintiff apply for and receive a medical retirement with enhanced benefits upon
expiration of his disability leave benefits in July, 2006. According to Plaintiff, Defendant’s
conduct between November, 2005 and July, 2006 constituted a discriminatory failure to
accommodate his disabilities that left him no choice but to accept a medical retirement. The
undisputed evidence demonstrates that the terms of that medical retirement were more favorable
than a regular retirement under Defendant’s pension plan. Upon Plaintiff’s retirement, his
position was filled by a 54-year-old African-American man.
II.

Law & Analysis
Plaintiff alleges causes of action under the Americans With Disabilities Act, 42 U.S.C. §

12101, et seq.; Title VII, 42 U.S.C. § 2000e, et seq.; 42 U.S.C. § 1981; the Age Discrimination in
Employment Act, 29 U.S.C. § 621, et seq.; and state-law analogues to those statutes. Defendant
moves for summary judgment on all of Plaintiff’s claims, arguing that the claims either fail as a
matter of law or because there are no genuine disputes of material fact. The Court will set forth
the applicable summary judgment standard, resolve Defendant’s argument regarding Plaintiff’s
exhaustion of administrative remedies, and then address Plaintiff’s claims for disability
discrimination and harassment, age discrimination, race discrimination and harassment, and
finally his retaliation claims.

4

A.

Standard on Motions for Summary Judgment
A district court can grant a motion for summary judgment only when “the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). When considering a motion for summary judgment, the
district court “will review the facts drawing all inferences most favorable to the party opposing
the motion.” Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The
court must find “[a] factual dispute [to be] ‘genuine’ if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party [and a] fact [to be] ‘material’ if it might
affect the outcome of the suit under the governing substantive law.” Beck v. Somerset Techs.,
Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)).
A movant can show that a fact “cannot be ... genuinely disputed” by “showing that the
materials cited do not establish the ... presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). “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.” Engstrom v. First Nat’l Bank of Eagle Lake,
47 F.3d 1459, 1462 (5th Cir. 1995) (citing former Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett,
477 U.S. 317, 322-24 (1986)). The mere argued existence of a factual dispute will not defeat an
otherwise properly supported motion. See Anderson, 477 U.S. at 248. “If the evidence is merely
colorable, or is not significantly probative,” summary judgment is appropriate. Id. at 249-50
(internal citations omitted).

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B.

Failure to Exhaust Administrative Remedies
Before bringing a Title VII, ADA, or ADEA claim, a plaintiff must exhaust

administrative remedies. 42 U.S.C. § 12117; 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d).
Thus, a plaintiff cannot file suit without first having presented an administrative claim to the
EEOC. E.g., McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008). A claim may
then be brought in a lawsuit if it is contained in the EEOC complaint, construed broadly, or
would be part of “the administrative EEOC investigation that can reasonably be expected to
grow out of the charge of discrimination,” which is “a fact-intensive analysis” of the substance
of the complaint. See id. (quotations omitted).
The summary judgment record reflects that Plaintiff filed an administrative charge with
the Louisiana Commission on Human Rights on November 8, 2005, after he went on short-term
disability leave but before his retirement/constructive discharge, and received a right-to-sue
letter dated November 15, 2007, after suit had been filed. Defendant argues that because the
retirement/constructive discharge occurred after the complaint was filed, that alleged incident
has not been through an administrative procedure and cannot be a proper claim in this lawsuit.
Plaintiff responds that the administrative complaint should be read expansively to include the
retirement/constructive discharge that occurred post-filing, but before the right-to-sue letter was
issued. On these facts, Defendant has not carried its burden to show as a matter of law that
Plaintiff’s retirement/constructive discharge would not reasonably have been investigated in
connection with the original charge. The motion is denied in this respect.
C.

ADA Discrimination and Harassment
As a threshold matter, there is a dispute as to which of Plaintiff’s medical conditions are

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involved in his disability discrimination claim. Defendant argues that the only purported
disabilities at issue are Plaintiff’s allergies and stress, based on Plaintiff’s admission at his
deposition:
Q.

A.

Q.
A.
....
Q.
A.
....
Q.
A.

Is it your contention that ExxonMobil discriminated against you because
of your allergies and your Sjogren’s syndrome? Are those the conditions
that you are alleging ExxonMobil discriminated against you –
ExxonMobil didn’t know about my Sjogren’s syndrome. The only person
who knew was my immediate supervisor at the time and that was Carlton
Bishop, and I asked that that not be divulged unless it became an issue
because I wanted to keep it private.
And you are not contending that Mr. Carlton discriminated against you or
failed to accommodate your Sjogren’s syndrome, then?
No. I’m not. No. I’m not. But I am contending that Exxon failed to
accommodate the disabilities that they knew about.
Okay. So the medical conditions that make up part of your discrimination
and accommodation claims in this case are the allergies and the stress?
Yes.
Any other medical conditions?
Well, no, that pretty much covers the medical conditions.

(P’s Dep. Vol. I at 202:20-203:12, 204:3-7, 204:20-22). However, in his opposition brief,
Plaintiff raises “the ‘constellation’ of impairments, including chronic gastritis, GERD, and
Sjogren’s Syndrome” as examples of disabilities or perceived disabilities which were the basis
for the alleged discrimination. (Rec. Doc. 129).
Plaintiff at his deposition expressly disclaimed any of those other impairments as the
subject of his disability claims. Moreover, Plaintiff has not articulated what accommodations he
requested specifically for those impairments, and what accommodations should have been
granted for those impairments, as compared to his allergies and stress. Accordingly, if there are
genuine issues of fact precluding summary judgment, those issues pertain only to the
impairments of allergies and stress.
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To prevail on an ADA discrimination claim, Plaintiff must establish a prima facie case
that (1) he is disabled within the meaning of the ADA, (2) he is qualified and able to perform the
essential functions of his job, and (3) his employer discriminated against him because of his
disability. Kemp v. Holder, 610 F.3d 231, 235 (5th Cir. 2010); Talk v. Delta Airlines, Inc., 165
F.3d 1021, 1024 (5th Cir. 1999). Defendant argues that Plaintiff cannot show a genuine dispute
as to any of those three prongs. The first prong, whether or not Plaintiff was disabled within the
meaning of the ADA, is dispositive of the claim.
At all times in question, the ADA defined “disability” as follows:
(2) Disability
The term “disability” means, with respect to an individual–
(A) a physical or mental impairment that substantially limits one or more
major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102 (2007).1 The statutory definition of “disabled” “‘needs to be interpreted
strictly to create a demanding standard for qualifying as disabled.’” Waldrip v. Gen. Elec. Co.,
325 F.3d 652, 654 (5th Cir. 2003) (quoting Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.
184, 197 (U.S. 2002)). The Court must “conduct a rigorous and carefully individualized inquiry
into [Plaintiff’s] claimed disability to fulfill [the] statutory obligation to determine the existence
of disabilities on a case-by-case basis.” Id. (quotation omitted). Plaintiff apparently pursues all
three theories: that he had an actual impairment that substantially limited a major life activity,
that he had a record of such an impairment, or that Defendant regarded him as having such an

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Congress amended the ADA after all of the relevant conduct in this case; the Fifth
Circuit has held that those amendments are not retroactive, and accordingly the Court will apply
the law in effect at the time of the alleged conduct without noting each instance in which it has
been superseded by statute. See Carmona v. Sw. Airlines Co., 604 F.3d 848, 857 (5th Cir. 2010).
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impairment. See Pl’s Opp. at 7. The Court will address each theory in turn.
1)

Actual disability

Plaintiff argues first that he had “a physical or mental impairment that substantially limits
one or more major life activities.” Disability under that prong requires three showings: that
Plaintiff had an “impairment,” that a “major life activity” was limited by the impairment, and
that the impairment “substantially limited” that major life activity. See Waldrip, 325 F.3d at
654. An impairment was defined at the time as:
(1) Any physiological disorder, or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems:
neurological, musculoskeletal, special sense organs, respiratory (including speech
organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and
lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as mental retardation, organic
brain syndrome, emotional or mental illness, and specific learning disabilities.
29 C.F.R. § 1630.2(h).2 The impairment must also affect a “major life activity.” “Major life
activities” are “those activities that are of central importance to daily life, and activities that are
central to the life process itself.” Waldrip, 35 F.3d at 655 (quotations omitted). At the time in
question, regulations defined a “major life activity” as including “caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. §
1630.2(i). Finally, the impairment must substantially limit that major life activity. This
requirement:
is the linchpin of § 12102(2)(A). Without it, the ADA would cover any minor
impairment that might tangentially affect major life activities such as breathing,
eating, and walking. For this reason, an impairment must not just limit or affect,
but must substantially limit a major life activity.

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The regulations are not controlling or entitled to Chevron deference, but the Fifth Circuit
considers them to be persuasive authority. See Waldrip, 325 F.3d at 655 n.1.
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Waldrip, 324 F.3d at 655 (emphasis in original). This is “a demanding standard for qualifying as
disabled.” Toyota, 534 U.S. at 197. “Permanency, not frequency, is the touchstone of a
substantially limiting impairment.” Waldrip, 324 F.3d at 655 (quotation omitted).
Plaintiff provides competent summary judgment evidence in the form of medical records
and his own testimony that he suffered from symptoms including dry skin and mouth, itchy skin,
throat soreness, watery eyes, joint pain and stiffness, fatigue, depression, congestion, and sinus
infections. A jury could find that these are impairments. Accordingly, the issue is whether those
impairments substantially limited a major life activity.
Plaintiff argues conclusorily that his allergy and stress symptoms limited the major life
activities of hearing, breathing, eating,3 speaking, and working. On this point, Plaintiff has failed
to raise a genuine factual dispute that his symptoms rose to the level of substantially limiting any
major life activity. Certainly, Plaintiff has articulated temporary inconvenience that arose from
his allergies and stress. But Plaintiff’s own treating physician testified that the allergy symptoms
were “seasonal,” “what a lot of people in south Louisiana have,” and “temporary,” “occasional,”
and “sporadic.” (Mayfield Dep., 114:8-14, 198:20-199:8). Likewise, Plaintiff admits that
despite his impairments he can smoke cigars, visit smoke-filled casinos, drive, listen to music, go
to concerts, care for himself daily, travel on vacations, and attend sporting events. (D’s
Statement, Rec. Doc. 118-4 at ¶ 12; P’s Statement, ¶ 12). Temporary, occasional, and sporadic
allergy symptoms are the opposite of the permanent issues that are the “touchstone of a
substantially limiting impairment.” Waldrip, 324 F.3d at 655 (quotation omitted). Plaintiff has

3

The limitations on his ability to eat apparently pertain to the chronic gastritis and other
conditions the Court has already held to be outside the scope of this lawsuit.
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not raised a genuine issue of fact that his allergies were a disability as defined by the version of
the ADA in effect at all relevant times.
Plaintiff also argues that his stress constituted a disability under the ADA because it
substantially limited him in the life activity of work. The undisputed record establishes that
Plaintiff’s “stress” symptoms derived from “personality conflict,” “difficulties with some
individuals,” “some issues in that immediate area of the workplace,” and “interpersonal
differences” and pertained specifically to his workgroup. (D’s Statement, ¶ 55; P’s Statement, ¶
55). But a person is only substantially limited in the major life activity of working if he is
significantly restricted from performing “a class of jobs or a broad range of jobs in various
classes as compared to the average person having comparable training, skills, and abilities.” See
Aldrup v. Caldera, 274 F.3d 282, 286-87 (5th Cir. 2001) (quotation omitted). Stress brought on
by inability or unwillingness to work with specific individuals “would merely tend to show that
[plaintiff] was unable to perform any job at one specific location, and is not evidence of [his]
general inability to perform a broad class of jobs.” See id. at 287 (affirming grant of summary
judgment). Accordingly, Plaintiff has not raised a genuine issue of material fact that his stress
substantially limited his ability to work such that it rose to the level of a disability for the
purposes of the ADA.
2)

History of disability

Plaintiff also argues that under § 12102(1)(B) that he was disabled because he had a
record of an impairment substantially limiting one or more major life activities. His evidence of
a history of disability is essentially the same as his evidence of existing disability; that is, he
does not articulate how his symptoms were previously worse or different, or how his prior

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condition was the basis for discrimination. Because the purported history of disability is the
same as the insubstantial impairment previously discussed, Plaintiff’s argument under this prong
of the statutory definition fails for the same reason that the impairment did not substantially limit
a major life activity.
3)

Regarded as disabled

Finally, Plaintiff argues in the alternative that if he was not actually disabled, Defendant
at least regarded him as disabled. 29 U.S.C. § 12102(1)(C). “There are two apparent ways in
which individuals may fall within this statutory definition: (1) a covered entity mistakenly
believes that a person has a physical impairment that substantially limits one or more major life
activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment
substantially limits one or more major life activities.” Sutton v. U. Air Lines, Inc., 527 U.S. 471,
489 (1999). “In both cases, it is necessary that a covered entity entertain misperceptions about
the individual–it must believe either that one has a substantially limiting impairment that one
does not have or that one has a substantially limiting impairment when, in fact, the impairment is
not so limiting.” Id. (emphasis added). The plaintiff must also show that “the impairment, if it
existed as perceived, would be substantially limiting.” McInnis v. Alamo Cmty. Coll. Dist., 207
F.3d 276, 281 (5th Cir. 2000).
Summary judgment is warranted on this theory of disability as well because Plaintiff has
not produced any evidence that Defendant misperceived his impairments. The record reflects
that Plaintiff’s treating physician was in frequent correspondence with Defendant and informed
Defendant about the actual nature, scope, and extent of Plaintiff’s actual symptoms of
impairment, which as previously discussed, were not substantially limiting. There is no

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additional evidence of a mistaken belief by Defendant that those non-limiting impairments in
fact substantially limited Plaintiff in any major life activity. On this record, the trier of fact
could not reasonably find a disconnect between the actual nature of Plaintiff’s impairments and
Defendant’s perception of them.
Plaintiff argues that the fact that in or about January, 2006, while Plaintiff was still on
disability leave, Defendant’s MOHD concluded that Plaintiff was impaired and “should not
return to work with his current immediate work group.” (Exh. M at 2-5). According to Plaintiff,
that work limitation means that Defendant regarded Plaintiff as actually disabled vis a vis his
ability to work with his current work group. As noted above, the inability to work with specific
employees does not rise to the level of a substantial impairment of the ability to work and is not
a disability under the ADA. If Defendant regarded him as unable to work with his work group,
that does not equate regarding him as disabled within the meaning and protection of the ADA.
Accordingly, Plaintiff has not raised a factual issue of “regarded-as” disability.4
Because Plaintiff was not disabled as defined by the operative law, summary judgment
on his claim for discrimination under the ADA is granted.5 Additionally, a claim for disability

4

This case is different from Stradley v. Lafourche Comm’ns, Inc., in which summary
judgment was denied based on genuine issues of fact regarding whether the defendant employer
received a diagnosis and added an additional level of “interpret[ation]” which led him to believe
“that Stradley’s condition made him potentially violent and hostile in the workplace,” which “[a]
reasonable jury could interpret ... as a conclusion that Stradley was not fit to work in any job.”
869 F. Supp. 442, 443 (E.D. La. 1994). Thus, that case involved a question of fact as to the
employer’s misperception of the magnitude and effects of the plaintiff’s condition. That element
of misperception is lacking here.
5

Summary judgment is also warranted to the extent that Plaintiff argues his retirement
was in fact a discriminatory constructive discharge on the basis of his disability because
Plaintiff’s application for and receipt of Social Security Disability Benefits as of July 21, 2005 is
inconsistent with a reasonable trier of fact concluding that Plaintiff was qualified to return to his
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harassment or hostile work environment also depends on being actually disabled. See Flowers v.
S. Reg’l Physician Servs. Inc., 247 F.3d 229, 235-36 & n.6 (5th Cir. 2001) (disability harassment
claim requires, inter alia, proof that plaintiff belonged to protected group and “that the
harassment claimed of was based on her disability or disabilities” within the meaning of the
ADA). Because Plaintiff was not disabled under the ADA, the harassment claim fails as well.6
Finally, to the extent that Plaintiff argues his medical retirement was in fact a constructive
discharge, that claim falls with his harassment claim. See, e.g., Aryain v. Wal-Mart Stores Tex.
LP, 534 F.3d 473, 480 (5th Cir. 2008) (holding that constructive discharge claim requires
“something more” than what is required to establish a harassment or hostile work environment
claim).
D.

Age Discrimination and Harassment Under the ADEA
Plaintiff also claims that he was discriminated against on the basis of his age. When

Plaintiff went on short-term disability leave in 2005, he was 55, the earliest age at which an
employee of Defendant could retire. The Fifth Circuit holds that “the familiar framework
outlined in McDonnell Douglas Corp. v. Green for allocating the burden of production and the
order of presenting proof” applies to ADEA claims. Jackson v. Cal-Western Packaging Corp.,
602 F.3d 374, 377-78 (5th Cir. 2010). “To establish a prima facie case of age discrimination, a
plaintiff must show that (1) he was discharged; (2) he was qualified for the position; (3) he was
within the protected class at the time of discharge; and (4) he was either i) replaced by someone

job after that date. (Hagen Dep., Exh. B). This point will be discussed at greater length below.
6

Thus, the Court need not address Plaintiff’s allegation that his supervisor once told him
he was “faking” his health complaints.
14

outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged
because of his age.” Id. at 378 (quotation omitted). As noted above, after Plaintiff retired his
position was filled by a 54-year-old African-American man. Therefore, Plaintiff proceeds on the
theory that his retirement was a constructive discharge because of his age. If Plaintiff establishes
a prima facie case, the burden shifts to Defendant to produce evidence of a legitimate,
nondiscriminatory reason; if Defendant does so, Plaintiff must prove by a preponderance that the
articulated nondiscriminatory reasons were a pretext for discrimination. See id. at 378 n.12.
Plaintiff has failed to produce sufficient facts that raise a prima facie case of age
discrimination because he has no evidence that the alleged constructive discharge occurred
because of his age. He simply points out that the alleged constructive discharge occurred after
he turned 55, when retirement became an available option. Plaintiff offers only his conclusory
testimony that he “saw a pattern that had developed where myself and other black employees
similarly situated had began to be harassed and moved out of jobs and put in undesirable jobs
and harassed to the point where, you know, they decided to go ahead and retire rather than either
take that undesirable job or face the possibility of being disciplined and fired.” (Butler Dep. Vol.
II at 133:4-13). Nor does he articulate any specific age-based comments that might support the
conclusion that his discharge, if involuntarily, was motivated in any way by his age:
Q.
A.
Q.
A.
Q.
A.

Did anyone ever say anything that you thought was an age-based
comment, something derogatory about age?
I don’t know what you would consider derogatory about age.
Do you remember anyone making my [sic] comments that you thought
were derogatory about age?
I don’t know if you consider people saying things like –
You don’t know of any?
Unless you consider some things, you know, people might have said about
you getting close to that age now or you are thinking about retiring.

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(Id. at 140:22-141:11). Indeed, he states that retirement would come up in “casual conversation”
because it was “something that, you know, at our ages we began to consider.” (Id. at 139:7-25).
Plaintiff also voluntarily attended retirement planning classes. (Id. at 140:2-8). In short,
Plaintiff offers nothing more than his bare, conclusory speculation, which cannot support a
conclusion by the trier of fact that Plaintiff’s age was a factor in any of Defendant’s alleged
actions. Plaintiff’s claim for age discrimination under the ADEA is dismissed.
Likewise, to the extent that Plaintiff pursues a claim for age-based harassment or hostile
work environment, summary judgment is also granted as to that claim. The Fifth Circuit permits
a ADEA-based claim for a hostile work environment, but requires a showing, inter alia, of
harassment based on age creating an environment that “is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently pervasive to alter the conditions of the
victim’s employment.” Dediol v. Best Chevrolet, Inc., 655 F.3d 436, 441 (5th Cir. 2011).
“[T]he complained-of conduct must be both objectively and subjectively offensive.” Id.
Plaintiff’s evidence of “casual conversation” about retirement falls far short of establishing a
genuine factual dispute under this standard. Summary judgment is granted as to Plaintiff’s
claims for age discrimination and harassment.
E.

Race Discrimination and Harassment Under Title VII and Section 1981
As Defendant correctly points out, the prior Order and Reasons limits the relevant time

periods for Plaintiff’s race-based claims under Title VII and 28 U.S.C. § 1981. Title VII claims
based on conduct prior to December 15, 2004 are prescribed, and § 1981 claims based on

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conduct prior to May 2, 2003 are prescribed. (Rec. Doc. 93 at 27).7 Plaintiff cites examples of
alleged racial comments that predate the operative period of actionable claims. Under some
circumstances, time-barred incidents may nonetheless be relevant “to illuminate current practices
which, viewed in isolation, may not indicate discriminatory motives.” See Cortes v. Maxus
Exploration Co., 977 F.2d 195, 199-200 (5th Cir. 1992) (quotation omitted). “This does not
mean, of course, that the existence of prior conduct or misconduct will necessarily create a fact
issue on the actionable events before the court.” See Stewart v. Miss. Transp. Comm’n, 586 F.3d
321, 331 (5th Cir. 2009). The Court will focus on the actionable facts in the pertinent time
frame, and consider prior conduct only to the extent, if at all, that it “illuminates” the actionable
events.
1)

Title VII Discrimination

To show race discrimination in violation of Title VII, Plaintiff must establish a prima
facie case by showing “(1) he is a member of a protected class; (2) was qualified for the position
at issue; (3) was discharged or suffered some adverse employment action by the employer; and
(4) was replaced by someone outside his protected group or was treated less favorably than any

7

•

•

•
•
•

Accordingly, the following incidents are not actionable:
Mr. Butler’s testimony that he heard the word “nigger” or was told that someone heard
the word “nigger”, both times occurring while he was a machinist and thus before 1990
(Butler Dep. Vol. II at 51:11-52:13, 71:6-72:2).
Testimony by Carleton Bishop as to racial comments made between 1976 and 1986 (Rec.
Doc. 123-4 at 59:4-9), and undated comments referring to adult African-American men
as “boy”, id. at 59:21-25.
Use of the word “brother” in undated incidents (Rec. Doc. 123-4 at 45-46; Rec. Doc.
123-5 at 49:8-18).
Testimony by David Dartez that Plaintiff told Dartez about derogatory race-related
comments made in the 1970's and 1980's (Rec. Doc. 123-3 at 36:4-20).
Purported denial of promotion opportunities prior to May 2, 2006, when Plaintiff was
already on leave and never returned to his job. (Rec. Doc. 92 at 27).
17

other similarly situated employees outside the protected group.” McCoy v. City of Shreveport,
492 F.3d 551, 556 (5th Cir. 2007). The same McDonnell burden-shifting framework applies. Id.
In the time period relevant to the Title VII race discrimination claim, Plaintiff is left with
his evidence of one instance in which his supervisor allegedly told him to “get your black ass out
of my office”; alleged job scrutiny, work criticism, and threats (but not imposition) of
disciplinary action; and his placement on disability leave and eventual medical retirement.
First, the alleged enhanced job scrutiny and work criticism do not constitute adverse
employment actions. See McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007).
Adverse employment actions, for the purposes of a Title VII discrimination claim, “include only
ultimate employment decisions such as hiring, granting leave, discharging, promoting, or
compensating.” Id. Placement on paid leave is not an adverse employment action, id., nor is
unfavorable feedback or performance reviews without an additional showing of loss to Plaintiff’s
compensation, duties, or benefits, see Watkins v. Paulsen, 332 F. App’x 958, 960 (5th Cir.
2009); accord Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir. 2000) (holding that
criticism, oral threats, and abusive remarks are not adverse employment actions). These facts,
taken as true on summary judgment, are not actionable adverse employment actions under Title
VII.
Second, the only alleged racially-motivated comment that occurred during the relevant
Title VII period is an alleged comment by Plaintiff’s supervisor that Plaintiff should “get your
black ass out of my office.” (Butler Dep. Vol. II, 82:1-19). Plaintiff does not tie this isolated
comment to any adverse employment action taken against him, and indeed did not report the
comment to Human Resources. (D’s Statement at ¶ 48; P’s Statement at ¶ 48). This single

18

incident, taken as true, does not suffice to show the element of an adverse employment action
necessary to prove his prima facie case on this claim, or that any other actions were motivated by
race.
Third, Plaintiff relies on his entry on disability leave and eventual medical retirement.
With respect to his entry on disability leave, the undisputed record evidence establishes that
Plaintiff’s treating physician recommended on July 19, 2005 that Plaintiff was unable to work
(Mayfield Dep. at 277:11-278:22) and that Plaintiff was immediately placed on paid disability
leave. Even if this constituted prima facie evidence of an adverse employment action, Defendant
easily provides a legitimate non-discriminatory reason for placing him upon leave: the letter
from Plaintiff’s own doctor. The burden shifts back to Plaintiff, and Plaintiff has not provided
evidence that his placement on short-term disability leave was pretextual rather than a genuine
reaction to the request from Plaintiff’s doctor. Accordingly, summary judgment is granted as to
the Title VII discrimination claim to the extent that it is premised on Plaintiff’s July, 2005
placement on disability leave.
With respect to his retirement, Plaintiff argues that his medical retirement in July 2006
was an involuntary, racially-motivated adverse employment action. However, as noted above,
Plaintiff sought and received Social Security Disability Insurance (SSDI) Benefits dating to July
21, 2005, shortly after he entered on short-term disability leave from Defendant, on the basis that
“his many medical conditions prevented him from working in any employment setting under the
Social Security Law since July 2005.” (Rec. Doc. 129 at 12-13). Accepting SSDI benefits based
on an inability to work is not necessarily incompatible with being simultaneously qualified for
one’s old position. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 802-03 (1999)

19

(holding that claimant’s simultaneous receipt of SSDI Benefits and claim that he was qualified
under the ADA “do not inherently conflict to the point where courts should apply a special
negative presumption”); see also McClaren v. Morrison Mgmt. Specialists, Inc., 420 F.3d 457,
463 (5th Cir. 2005). But a “plaintiff cannot simply ignore the apparent contradiction that arises
out of the earlier SSDI total disability claim” and “must proffer a sufficient explanation.”
Cleveland, 526 U.S. at 806. “To defeat summary judgment, that explanation must be sufficient
to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s goodfaith belief in, the earlier statement, the plaintiff could nonetheless ‘perform the essential
functions’ of her job....” Id. at 807 (qualification under ADA claim); see also McClaren v.
Morrison Mgmt. Specialists, Inc., 420 F.3d 457, 463 (5th Cir. 2005) (extending “persuasive”
Cleveland reasoning to ADEA claim which also had qualification for position as element of
prima facie case)
In pursuing his SSDI benefits, counsel for Plaintiff represented that he “has been unable
to work since July 21, 2005 due to his severe impairments.” (Hagen Dec., Exh. B at SSA44)
(emphasis added). An ALJ agreed and issued findings of fact and conclusion of law that
Plaintiff “is unable to perform any past relevant work” and that Plaintiff “has been under a
disability, as defined in the Social Security Act, from July 21, 2005 through the date of this
decision [April 24, 2008].” (Id. at SSA 54, 55). Defendant flagged this inconsistency in its
motion for summary judgment; in response, Plaintiff merely points out the “differences in the
requirements of the two statutes” and the fact that there was a delay between the alleged failure
to accommodate and the time he actually received the SSDI Benefits in 2009. (Opp. at 21 n.93).
This does not sufficiently explain how Plaintiff was qualified to return to his job after July 21,

20

2005, or how his “forced” retirement in 2006 could have been an adverse employment action
motivated by race. Accordingly, on these undisputed facts Plaintiff’s pursuit and acceptance of
SSDI Benefits estops him from contending that he was qualified to return to his job after July 21,
2005. This is fatal to his prima facie case for Title VII discrimination premised on the 2006
retirement.
For the foregoing reasons, summary judgment is granted with respect to Plaintiff’s Title
VII discrimination claim.
2)

Title VII Harassment/Hostile Work Environment

A race-based harassment/hostile-work environment claim requires that Plaintiff establish
a prima facie case that (1) he is a member of a protected class; (2) he was subject to unwelcome
harassment; (3) the harassment affected a term or condition of his employment; and (4)
Defendant knew or should have known about the harassment and failed to take prompt remedial
action. See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 347 (5th Cir. 2007). The
Court looks to the totality of the circumstances, considering “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating[;] and whether it
unreasonably interferes with an employee’s work performance.” Id. (quotation and alteration
omitted). Generally, poor performance evaluations, “write-ups,” and work criticism, even if
unjust and unfair and in front of peers, do not rise to the level of a hostile work environment.
See Kang v. Bd. of Supervisors, 75 F. App’x 974, 975-76, 977 (5th Cir. 2003). Likewise,
“[m]ere utterance of an ... epithet which engenders offensive feelings in an employee does not
sufficiently affect the conditions of employment to implicate Title VII.” Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993).

21

As set forth above, Plaintiff has produced evidence that, taken in his favor on summary
judgment, establishes workplace criticism and job scrutiny, as well as one instance in which his
supervisor told him in racially-charged terms to get out of the supervisor’s office.8 Plaintiff has
submitted no evidence beyond his bare self-serving speculation that the workplace criticism was
racially motivated or contained racial overtones. Collectively, this evidence does not suffice to
raise a triable issue of fact on a Title VII hostile work environment claim. Though the
supervisor’s comment was undoubtedly inappropriate, the totality of the record does not
establish actionable conduct “severe or pervasive enough to create an objectively hostile or
abusive work environment–an environment that a reasonable person would find hostile or
abusive.” Harris, 510 U.S. at 21. Summary judgment is granted as to this claim as well.
Finally, summary judgment is also warranted on Plaintiff’s claim that his placement on
disability leave and medical retirement were in fact a constructive discharge. A Title VII
constructive discharge claim “requires a greater severity of pervasiveness or harassment than the
minimum required to prove a hostile work environment.” Dediol v. Best Chevrolet, Inc., 655
F.3d 435, 444 (5th Cir. 2011). Plaintiff’s hostile work environment claim does not survive
summary judgment, and a fortiori his constructive discharge claim falls with it.
3)

§ 1981 Discrimination & Hostile Work Environment

The elements of a Title VII and § 1981 claim are the same and are subject to the same
analysis. Pratt v. City of Houston, 247 F.3d 601, 606 n.1 (5th Cir. 2001). However, the § 1981

8

Plaintiff also cites instances in which co-workers addressed him with the terms “you” or
“y’all.” “Although in some contexts the use of racial epithets or ethnic slurs may support an
inference of race discrimination, no reasonable person could attribute racial animus to the use of
the race-neutral, colloquialism ‘Y’all.’” Montgomery v. Coca-Cola Enters., Inc., 2003 WL
138087, at *6 (N.D. Tex. Jan. 14, 2003).
22

encompasses a slightly larger temporal reach. (Rec. Doc. 92). Accordingly, the Court’s analysis
is the same as above, with the addition of two possible additional circumstances of allegedly
discriminatory conduct: Plaintiff’s transfer in 2004 from the “Chemical Plant” to the “Refinery”
with the SPM Group, and an alleged racially-charged comment by another employee who was
not Plaintiff’s supervisor.
With respect to the 2004 transfer, Defendant does not argue in his opposition that his
transfer in 2004 from the “Chemical Plant” to the “Refinery” was discriminatory, rather than a
facility-wide company consolidation motivated by efficiency and applicable to multiple
workgroups and personnel.
One additional alleged racial comment in 2004 by Rodney Nijoka, is encompassed in the
applicable Section 1981 period. The undisputed summary judgment record establishes that Mr.
Nijoka would place orders for materials through Plaintiff, and that he was not Plaintiff’s
supervisor. Plaintiff stated at his deposition that after receiving criticism from Mr. Nijoka he
complained to the human resources department regarding Mr. Nijoka “yelling and cursing at
him,” after which Mr. Nijoka told Plaintiff “I’m going to get you, you black bastard.” (P’s Dep.
Vol. I, 335-338).
This additional incident, taken as true for the purposes of this motion, does not defeat
summary judgment. With respect to a discrimination claim, at most it represents criticism by a
non-supervisor, which does not constitute an adverse employment action and is not tied to any
other adverse action. With respect to a harassment or hostile work environment claim, this
single additional incident, even compounded with the allegations falling within the Title VII time
period, and even “illuminated” by Plaintiff’s stale allegations of prior racially-charged language,

23

as a matter of law does not arise to the level of conduct “severe or pervasive enough to create an
objectively hostile or abusive work environment–an environment that a reasonable person would
find hostile or abusive.” Harris, 510 U.S. at 21. Summary judgment is granted as to Plaintiff’s
claims for discrimination or harassment under 28 U.S.C. § 1981. Moreover, the constructive
discharge claim fails for the same reason as the Title VII constructive discharge claim.
F.

Retaliation Claims
Defendant moves for summary judgment on race-, disability-, and age-based retaliation

claims. In response, Plaintiff argues that summary judgment is not warranted on claims for racebased retaliation under Title VII or disability-based retaliation under the ADA, although he does
not clearly differentiate between the two claims.9
The elements of a Title VII and ADA retaliation claim are essentially the same but
protect different activity. “To show an unlawful retaliation, a plaintiff must establish a prima
facie case of (1) engagement in an activity protected by the ADA [or Title VII], (2) an adverse
employment action, and (3) a causal connection between the protected act and the adverse
action.” Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999); accord Hernandez v. Yellow
Transp., Inc., 641 F.3d 118, 130 (5th Cir. 2011) (describing similar elements of Title VII
retaliation claim). To pursue a retaliation claim, Plaintiff need not actually be disabled or a
member of a protected class, but rather must have a good faith belief that the ADA or Title VII
have been violated. Tabatchnik v. Continental Airlines, 262 F. App’x 674, 676 (5th Cir. 2008).

9

In his summary judgment opposition, Plaintiff does not argue for a retaliation claim
under the ADEA. He also does not articulate a retaliation claim under § 1981, which was a
subject of Defendant’s motion for summary judgment. (Rec. Doc. 129 at 26-27). Accordingly,
the motion for summary judgment is unopposed as to the ADEA retaliation claim.
24

If Plaintiff establishes the prima facie case, Defendant must come forward with a legitimate,
non-discriminatory reason for the adverse employment action. Id. If that reason is provided,
Plaintiff must produce evidence that the proffered reason is a pretext and that but for his
protected activity, the adverse employment action would not have occurred. Id.
1)

Prima Facie Case

Plaintiff can satisfy his burden on the “protected activity” prong of his prima facie case
by showing that he “(1) opposed any practice made an unlawful employment practice by Title
VII or (2) made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under Title VII.” Grimes v. Tex. Dep’t of Mental Health & Mental
Retardation, 102 F.3d 137, 140 (5th Cir. 1996) (quotations omitted); accord Seaman v. CSPH,
Inc., 179 F.3d 297, 301 (5th Cir. 1999) (applying same elements but protecting engagement in
activity protected by the ADA). Plaintiff provides competent summary judgment evidence that
he made requests for disability “accommodations” including movement to a different facility
with less exposure to irritants. Although as the Court has explained above Plaintiff was not in
fact disabled within the meaning of the ADA, it is sufficient if Plaintiff had a reasonable belief
that he was covered by the ADA. See E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d
606, 621 n.9 (5th Cir. 2009) (“Every appeals court to consider this issue has concluded that
[requesting an accommodation] is protected as long as the employee had the reasonable belief
that he was covered by the ADA.”). Additionally, Plaintiff states that he complained to
Defendant that his workplace scrutiny was racially motivated, and also filed a discrimination
complaint in November 2005, after he had been placed on short-term disability leave but before
he retired. Taking this evidence in the most favorable light to Plaintiff, it demonstrates conduct

25

protected by the ADA and by Title VII, respectively, which satisfies the first element of his
prima facie cases for disability or race-based retaliation.
The next element of Plaintiff’s prima facie case is that he suffered an adverse
employment action. A retaliation claim under Title VII and the ADA, “unlike the substantive
provision, is not limited to discriminatory actions that affect the terms and conditions of
employment.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006).10 It is
sufficient for the prima facie case if the discriminatory adverse employment action “is one that a
reasonable employee would have found to be materially adverse, which in this context means it
might well have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Aryain, 534 F.3d at 484.
On the one hand, chastisement by superiors and ostracism by co-workers “do not rise to
the level of material adversity but instead fall into the category of ‘petty slights, minor
annoyances, and simple lack of good manners’ that the Supreme Court has recognized are not
actionable retaliatory conduct.” Stewart, 586 F.3d at 332. Thus, as a matter of law, Plaintiff’s
allegations of workplace criticism and job scrutiny are not adverse employment actions for the
purposes of his retaliation claims.
On the other hand, paid administrative leave may constitute a retaliatory adverse
employment action, dependent on the particular circumstances and context. See Stewart, 586
F.3d at 332. Plaintiff’s placement on short-term medical disability leave and eventual medical
retirement may suffice to establish this element of the prima facie case. For the purposes of this

10

Though Burlington was a Title VII case, Burlington applies equally to ADA retaliation
cases. See Grubic v. City of Waco, 262 F. App’x 665, 666 n.6 (5th Cir. 2008).
26

summary judgment motion, Court will assume that they constitute adverse employment actions.
The third element of Plaintiff’s prima facie case is causation. To establish a prima facie
case and defeat summary judgment, Plaintiff “must demonstrate a conflict in substantial
evidence on the ultimate issue of ‘but for’ causation.” Hernandez v. Yellow Transp., Inc., 641
F.3d 118, 130 (5th Cir. 2011) (quotation and some alterations omitted). “Evidence is
‘substantial’ if it is of such quality and weight that reasonable and fair-minded men in the
exercise of impartial judgment might reach different conclusions.” Id. (quotation omitted).
“Temporal proximity, standing alone, is not enough.” Id. On the other hand, under some
circumstances “[w]here there is close timing between an employee’s protected activity and an
adverse employment action, the employer must offer a legitimate nondiscriminatory reason that
explains both the adverse action and the timing.” Shackelford v. Deloitte & Touche, LLP, 190
F.3d 398, 408 (5th Cir. 1999).
Here, Plaintiff argues that causation of either race-based or disability-based retaliation
can be inferred from the fact that his work criticism was unwarranted, from comments by his
supervisor that he was “faking” his impairments, and from the temporal proximity between some
of Plaintiff’s complaints of harassment and his entry on disability leave and eventual medical
retirement. None of these are particularly probative of an actual causal link between the
Plaintiff’s disability leave and medical retirement on the one hand, and his requests for
accommodations or complaints of racial discrimination. Taking the evidence in Plaintiff’s favor,
both sets of events happened, but Plaintiff has not tied them together. He has not produced any
evidence regarding who at the MOHD made decisions regarding his disability leave and medical
retirement, or how that decisionmaker was motivated, or the extent to which either race or

27

disability was the motive. Moreover, although Plaintiff’s disability leave in July 2005 did follow
some of Plaintiff’s complaints, it more directly followed the letter from Plaintiff’s treating
physician; thus, any inference from temporal proximity is greatly attenuated.
Assuming for the sake of argument that Plaintiff has produced sufficient evidence to infer
a causal link between the actionable adverse employment actions and his Title VII/ADAprotected conduct, Plaintiff fails to raise a genuine issue of material fact that Defendant’s actions
were pretextual. As explained above, Defendant placed Plaintiff on paid administrative leave on
the basis of a letter from his treating physician declaring him unfit for work. Defendant assisted
Plaintiff in obtaining a medical retirement, well after he was already completely unfit for work,
as he represented to the Social Security Administration. These are plausible non-pretextual
reasons for Defendant’s conduct. In response, Plaintiff offers nothing more than his mere
personal speculation that any of these actions were retaliatory and motivated by his complaints
of racial discrimination or requests for accommodations. There is simply no triable issue of fact
for the jury on Plaintiff’s retaliation claims, and summary judgment is granted as to those claims
as well.
G.

State-Law Claims
Plaintiff also apparently pursues his discrimination claims under the Louisiana

Employment Discrimination Law. However, Plaintiff has not articulated how the analysis under
the LEDL differs in any way from his federal claims. Accordingly, summary judgment is
granted as to Plaintiff’s state-law claims.
IV.

Conclusion
Accordingly, for the foregoing reasons,

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IT IS ORDERED that the Defendant’s motion for summary judgment (Rec. Doc. 118) is
GRANTED and all of Plaintiff’s claims are dismissed WITH PREJUDICE.
New Orleans, Louisiana, this 20th day of January, 2012.

UNITED STATES DISTRICT JUDGE

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