Hammond v. Jacobs Field Services

Filing 22

RULING granting 15 Motion for Summary Judgment on all of pla's federal claims. These claims shall be dismissed with prejudice. Pla's state law claims shall be dismissed without prejudice. Signed by Judge Frank J. Polozola on 2/9/12. (DCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ERNEST HAMMOND, JR.
CIVIL ACTION
VERSUS
NUMBER 10-56-FJP-DLD
JACOBS FIELD SERVICES

RULING
Defendant Jacobs Field Services North America (“Jacobs”) has
filed a Motion for Summary Judgment.1

The plaintiff, Ernest

Hammond, Jr. (“Hammond”) has filed an opposition to this motion.2
For the reasons which follow, defendant’s motion for summary
judgment is granted on the federal claims, and plaintiff’s federal
claims are dismissed with prejudice.

The plaintiff’s state law

claims are dismissed without prejudice because the Court exercises
its discretion under 28 U.S.C. § 1367 not to assume federal
jurisdiction over these claims.
I.

Factual Background
Hammond was first employed by Jacobs in 1996, and then again

in 1998 at the Exxon Lube facility in Port Allen after a gap in
employment.

The Exxon Lube facility packages motor oil, and

1

Rec. Doc. No. 15.

2

Rec. Doc. No. 18.

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1

employees in this facility work in shifts and rotate among the
various types of automated lines which package the oil.

As an

operator, plaintiff worked on the high-speed gallon line most
often.

His job duties involved climbing, balancing, stooping,

kneeling, pulling, pushing, lifting, grasping, and using tools.
For security purposes, the Exxon facility where plaintiff
worked required employees to use a gate pass assigned to each
employee which is scanned to gain entry into the plant.

This

procedure is a safety measure which ensures that only authorized
personnel have access to the facility and also allows Exxon to know
how many people are in the facility in the event of an emergency.
If an employee’s badge is not used for an extended period of time,
it is de-activated.

It is against the rules of both Exxon and

Jacobs for an employee to enter the facility on someone else’s
pass.

This rule was discussed at a safety meeting which plaintiff

attended during his employment.
In the year leading up to plaintiff’s termination in March of
2008, plaintiff had suffered various health issues, including
carpal tunnel, neck pain, back pain and weakness in the legs.3

In

February of 2008, after an extended sick leave, plaintiff attempted
to

return

to

work

with

a

limited

duty

release.

Jacobs

Superintendent Brent Watts advised plaintiff that no limited or

3

See Deposition of Earnest Hammond, Jr., Rec. Doc. No. 15-2,
p. 10, lines 22-23.
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2

light duty work was available at that time and he could not return
to work until he obtained a full medical release.

Plaintiff

subsequently returned to the plant and attempted to enter the plant
but his de-activated badge would not allow him entry.

Instead of

using the intercom to communicate with security, plaintiff against
company policy followed another vehicle into the plant, thereby
“piggybacking”

on

that

individual’s

card,

which

he

knew

was

expressly forbidden by Exxon and Jacobs. After entering the plant,
plaintiff went to see Watts and was told to leave the plant because
his presence was unauthorized.

Plaintiff ignored this directive

and attempted to see the Exxon plant manager Mark McClelland
instead of leaving the premises.

When plaintiff could not enter

the secure door to McClelland’s office, he allegedly began pounding
on the door, resulting in McClelland’s office contacting the
police.

Plaintiff denies pounding on the door but left the

premises before an officer arrived at the plant.
On March 3, 2008, plaintiff met with Brent Watts and Jacobs
employees Wayne Tyson and Darryl Fuentes to discuss the incident.
During this meeting, plaintiff admitted that he entered the plant
on someone else’s badge and acknowledged that he knew this was
against

both

Exxon

and

Jacobs’

rules.

His

only

excuse

for

violating the rules was he wanted to discuss his returning to work
with someone.
Based on this security breach, Jacobs Project Manager Wayne

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3

Tyson terminated plaintiff.

This decision was later affirmed by

McClelland, who told Tyson that even if Jacobs had not terminated
the plaintiff, Exxon would have refused to allow the plaintiff
entrance to the facility.
At the time of his termination, Jacobs also contends that
plaintiff was unable to perform the essential functions of his job.
In fact, Jacobs contends plaintiff could not perform ANY of his job
duties.

The record reflects that plaintiff has worked for other

employees only for a few months since his termination because of
his

physical

condition.

Since

his

separation

from

Jacobs,

plaintiff has received disability benefits and began receiving
social security disability benefits in February of 2010.
Plaintiff filed an EEOC charge on May 22, 2008, alleging race
and disability discrimination and retaliation.

He filed this

lawsuit in January of 2010 claiming that Jacobs has violated his
rights

under

the

Americans

with

Disabilities

Act

(ADA),4

discriminated against him based on his race in violation of Title
VII of the Civil Rights Act of 1964,5 and retaliation.
now moved for summary judgment on all claims.
an opposition to the motion.

Plaintiff has filed

This matter is now before the Court

on defendant’s motion for summary judgment.
required.

Jacobs has

No oral argument is

For reasons which follow, the Court grants defendant’s

4

42 U.S.C. § 12101 et seq.

5

§701, et seq., as amended 42 U.S.C. § 2000e et seq.

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4

motion for summary judgment and dismisses plaintiff’s federal
claims with prejudice.

Plaintiff’s state law claims are dismissed

without prejudice.
II.

Law and Analysis
A.

Summary Judgment Standard

Summary judgment should be granted if the record, taken as a
whole, "together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law."6

The Supreme Court has

interpreted the plain language of Rule 56(c) to mandate "the entry
of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial."7

A party moving for summary judgment "must 'demonstrate

the absence of a genuine issue of material fact,' but need not
negate the elements of the nonmovant's case."8

If the moving party

"fails to meet this initial burden, the motion must be denied,

6

Fed. R. Civ. P. 56(c); New York Life Ins. Co. v. Travelers
Ins. Co., 92 F.3d 336, 338 (5th Cir. 1996); Rogers v. Int'l Marine
Terminals, Inc., 87 F.3d 755, 758 (5th Cir. 1996).
7

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). See also Gunaca v. Texas, 65 F.3d
467, 469 (5th Cir. 1995).
8

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc) (quoting Celotex, 477 U.S. at 323-25, 106 S.Ct. at
2552).
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5

regardless of the nonmovant's response."9
If the moving party meets this burden, Rule 56(c) requires the
nonmovant to go beyond the pleadings and show by affidavits,
depositions, answers to interrogatories, admissions on file, or
other admissible evidence that specific facts exist over which
there is a genuine issue for trial.10
not

be

satisfied

by

conclusory

The nonmovant's burden may

allegations,

unsubstantiated

assertions, metaphysical doubt as to the facts, or a scintilla of
evidence.11

Factual controversies are to be resolved in favor of

the nonmovant, "but only when there is an actual controversy, that
is, when both parties have submitted evidence of contradictory
facts."12

The Court will not, "in the absence of any proof, assume

that the nonmoving party could or would prove the necessary
facts."13

Unless there is sufficient evidence for a jury to return

a verdict in the nonmovant's favor, there is no genuine issue for

9

Id. at 1075.

10

Wallace v. Texas Tech Univ., 80 F.3d 1042, 1046-47 (5th Cir.

1996).
11

Little, 37 F.3d at 1075;

Wallace, 80 F.3d at 1047.

12

Wallace, 80 F.3d at 1048 (quoting Little, 37 F.3d at 1075).
See also S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494
(5th Cir. 1996).
13

McCallum Highlands v. Washington Capital Dus, Inc., 66 F.3d
89, 92 (5th Cir. 1995), as revised on denial of rehearing, 70 F.3d
26 (5th Cir. 1995).
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6

trial.14
In order to determine whether or not summary judgment should
be granted, an examination of the substantive law is essential.
Substantive law will identify which facts are material in that
“[o]nly disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of
summary judgment.”15
B.

Time-Barred Claims

Jacobs contends that while plaintiff’s EEOC charge of May 2008
complains of race and disability discrimination and retaliation,
plaintiff has included in his lawsuit harassment complaints of
being drug tested when returning from leave; not being provided
light duty or alternative duty assignments prior to termination;
his paycheck not being in its normal location; being unduly
monitored while performing his job; and his superintendent speeding
up the production line and requiring him to manually cap bottles.
Jacobs

contends

none

of

the

above

claims

are

contained

in

plaintiff’s EEOC charge and thus are not properly before the Court
since incidents that are not addressed in or reasonably related to
Charges of Discrimination filed with the EEOC cannot form the basis

14

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51, 106
S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
15

Id. at 248, 106 S.Ct. at 2510.

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7

for Title VII or ADA claims in a subsequent lawsuit.16
Jacobs also contends the above claims are time barred.

The

record reveals that the plaintiff filed his EEOC charge in March of
2008.

Under

Title

VII

and

the

ADA,

an

EEOC

charge

of

discrimination in a deferral state like Louisiana must be filed
within 300 days of the last act of discrimination.17

Thus, any

claims which allegedly occurred outside the 300 day period are time
barred.

For this reason, Jacobs argues plaintiff has no claims

based on events occurring prior to January 2007.
In his opposition, plaintiff essentially concedes he is not
seeking to recover damages for any incidents occurring outside the
300 day time period at issue.

Thus, the Court finds that the only

claims properly before the Court are plaintiff’s claims of race and
disability discrimination and retaliation with respect to his
termination and request for disability accommodation.

The Court

shall grant defendant’s motion for summary judgment on all other
federal claims which were not set forth in plaintiff’s EEOC charge
and are time barred.

The Court now turns to a discussion of the

claims that are properly before the Court.

16

Thomas v. Atmos Energy Corp., 223 Fed. Appx. 369, 376 (5th
Cir. 2007)(citing Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th
Cir. 1993)). See also, Young v. City of Houston, 906 F.2d 177 (5th
Cir. 1990).
17

42 U.S.C. § 2000e(5)(e)(1); Celestine
Venezuella SA, 266 F.3d 343 (5th Cir. 2001).
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8

v.

Petroleos

de

C.

Americans with Disabilities Act (“ADA”)18

The ADA provides that “[n]o covered entity shall discriminate
against a qualified individual with a disability because of the
disability of such individual in regard to [the] ... advancement,
[or] discharge of employees, ... and other terms and conditions,
and privileges of employment.”19

To prevail on an ADA claim, “a

plaintiff must prove that: 1) he has a ‘disability’; 2) he is
‘qualified’ for the job; and 3) an adverse employment decision was
made solely because of his disability.”20

A “disability” is “any

physical or mental impairment that substantially limits one or more
major life activities.”21 Major life activities include “working.”22
A plaintiff is “substantially limited” in working when he is:
significantly restricted in the ability to
perform either 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. The inability
to perform a single, particular job does not

18

The Court notes that the ADA was amended in 2008 and those
amendments took effect on January 1, 2009. See ADA Amendments Act
of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008).
The Fifth
Circuit has previously held that these amendments are not
retroactive. See EEOC v. Agro Distribution, LLC, 555 F.3d 462, 469
n. 8 (5th Cir. 2009). As such, the language and the law cited in
this section reference the pre-amendment versions of the ADA.
19

42 U.S.C. § 12112(a) (2005).

20

Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1092 (5th Cir.

1996).
21

42 U.S.C. § 12102(2)(A)(2005).

22

29 C.F.R. § 1630.2(i).

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9

constitute a substantial limitation in the
major life activity of working.23
However, even assuming plaintiff has a disability, to be a
qualified individual with a disability, the plaintiff must be “an
individual with a disability who, with or without reasonable
accommodation,
employment

can

position

perform
that

the

such

essential

individual

functions

holds

or

of

the

desires.”24

Relevant to the facts of this case, reasonable accommodations
include “[j]ob restructuring; part-time or modified work schedules;
[or] reassignment to a vacant position.”25 However, “[t]he ADA does
not require an employer to relieve an employee of any essential
function of his or her job, modify those duties, reassign existing
employees to perform those jobs, or hire new employees to do so.”26
Plaintiff contends he was disabled, was denied a reasonable
accommodation,

and

he

suffered

disability

retaliation when he was terminated.

discrimination

and

Jacobs concedes for the

purposes of this motion that plaintiff’s conditions (carpal tunnel
syndrome, MS, and other health issues) constitute an impairment.
However, Jacobs argues plaintiff failed to satisfy his burden of

23

Id. §1630.2(j)(3)(i).

24

42 U.S.C. § 12111(8)(2005)(emphasis added).

25

29 C.F.R. § 1630.2(o)(2)(ii).

26

Burch v. City of Nacogdoches, 174 F.3d 615, 621 (5th Cir.
1999)(emphasis added).
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10

showing that plaintiff’s impairments constitute disabilities under
the

law,

reasonable

accommodations

were

denied,

or

plaintiff

experienced an adverse employment action because of his disability.
1.

Disabled Under the ADA

The United States Supreme Court has instructed that courts are
to make an individualized determination of whether an employee’s
impairment constitutes a disability, taking into consideration
measures taken by the employee to mitigate the effects of the
impairment.27

Thus, the ADA requires a case-by-case determination

of the nature of the employee’s impairment: “An individualized
assessment of the effect of an impairment is particularly necessary
when the impairment is one whose symptoms vary widely from person
to person.”28
The Fifth Circuit has stated:
The substantial-limit 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.29

27

Griffin v. United Parcel Service, Inc., 661 F.3d 216,221 (5th
Cir. 2011)(citing Sutton v. United Air Lines, Inc., 527 U.S. 471,
119 S.Ct. 2139, 144 L.Ed.2d 450 (1999).
28

Toyota Motor Mfg. v. Williams, 534 U.S. 184, 199, 122 S.Ct.
681, 151 L.Ed.2d 615 (2002) (overruled on other grounds by the ADA
Amendments Act of 2008).
29

Waldrip v. General Electric Company, 325 F.3d 652, 656 (5th
(continued...)

Doc#47636

11

The effects of an impairment must be severe to
qualify as a disability under the ADA.30
“The particularized inquiry mandated by the
ADA centers on substantial limitation of major
life activities, not mere impairment.” Ivy,
192 F.3d at 516. In Burch v. Coca-Cola Co.,
119 F.3d 305, 316 (5th Cir. 1997), for example,
this court held that alcoholism is not a
disability, despite its effects on walking,
talking, thinking, and sleeping, because these
effects, though serious, are merely temporary.
“Permanency, not frequency, is the touchstone
of a substantially limiting impairment.”
Likewise, in Ellison v. Software Spectrum,
Inc., 85 F.3d 187 (5th Cir. 1996), we held that
cancer and its treatment did not substantially
limit the major life activity of work.
“Obviously, [plaintiff’s] ability to work was
affected; but far more is required to trigger
coverage under § 12102(2)(A).”
Id. at 191
(emphasis added).
Many other cases follow
this lead and hold that the effects of an
impairment, even some serious ones, do not
rise to a substantial limit.31
In Dupre v. Charter Behavioral Health Systems of Lafayette,
Inc., a former employee (Dupre) sued her former employer for
terminating her based on her disability in violation of the ADA.32
Dupre suffered from degenerative disc disease and degenerative
facet

joint

disease

in

her

back

for

which

she

had

multiple

29

(...continued)
Cir. 2003), citing Albertson’s, Inc. v. Kirkinburg, 527 U.S. 555,
565, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999) (contrasting “mere
difference” with a “significant restriction”).
30

Id., citing Toyota, 534 U.S. at 197, 122 S.Ct. 681.

31

Id. (citations omitted)(bold emphasis added).

32

242 F.3d 610 (5th Cir. 2001).

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12

surgeries.
absenteeism.

Charter

claimed

it

terminated

her

for

excessive

Charter moved for summary judgment on Dupre’s ADA

claim and the district court found in favor of Charter.
On

appeal,

the

Fifth

Circuit

noted

that,

“[w]hether

an

impairment is substantially limiting depends on ‘(1) the nature and
severity of the impairment, (2) its duration or expected duration,
and (3) its permanent or expected permanent or long-term impact.”33
Dupre claimed the limitation on her ability to sit and stand for
long periods of time constituted the substantial limitation of a
major life activity.

The Fifth Circuit held that “the ‘condition,

manner, or duration” under which Dupre was able to sit or stand was
not significantly restricted as compared with the average person.”34
Dupre also claimed a substantial limitation in the major life
activity of working. To prove this limitation, Dupre was “required
to demonstrate that her back injury precluded her from a class of
jobs or a broad range of jobs.”35

The Fifth Circuit stated:

“ ‘The

inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working.’”36

33

Id. at 614, quoting Sutton, 119 S.Ct. 2139, 2145 (citing 29
C.F.R. § 1630, App., § 1630.2(j)).
34

Id., quoting 29 C.F.R. § 1630.2(j)(1). See also, Taylor v.
Pathmark Stores, Inc., 177 F.3d 180, 186 (3rd Cir. 1999).
35

Id., citing Sutton, 527 U.S. at 491, Pryor v. Trane, 138 F.3d
1024, 1027 (5th Cir. 1998).
36

Id., quoting Pryor, 138 F.3d at 1027 (quoting 29 C.F.R. §
(continued...)

Doc#47636

13

The Fifth Circuit also noted that the Supreme Court has held: “ ‘If
jobs utilizing an individual’s skills (but perhaps not his or her
unique

talents)

are

available,

one

is

not

precluded

from

a

substantial class of jobs. Similarly, if a host of different types
of jobs are available, one is not precluded from a broad range of
jobs.’”37
Dupre argued that her impairment had disqualified her from all
manual labor, thus precluding her from a broad range of jobs.
However, the court found that “Dupre has presented no evidence that
she would be disqualified from all jobs requiring manual labor.”38
In fact, relying on the facts in the record, the court found that
“Dupre was only precluded from jobs involving very strenuous
physical

activity

sitting,

heavy

(like

lifting,

laying
or

brick),

prolonged

prolonged

walking.

standing
There

or

exist,

however, many jobs involving only light labor that Dupre seemed
perfectly capable of performing. ... An inability to engage in the
kind of intense physical exertion required of some jobs hardly
disqualifies Dupre from all jobs involving manual labor.”39
In this case, Hammond contends his carpal tunnel syndrome,

36

(...continued)
1630.3(j)(3)(I)).
37

Id., quoting Sutton, 119 S.Ct. at 2151.

38

Id.

39

Id. at 615.

Doc#47636

14

back pain from a compressed disc, leg and arm numbness, and various
related conditions, have substantially limited his major life
activities of working, standing, running, and walking.

Plaintiff

contends he can no longer run, has trouble walking at times, and
often

cannot

stand

without

holding

something

for

support.

Plaintiff claims he is limited in the major life activity of
working in that he can no longer lift, stack, climb stairs, or load
the machines.
The Court finds the reasoning and analysis by the Fifth
Circuit of the claims in Dupre are directly on point and applicable
in the case at bar.

First, Hammond simply stating his belief that

his impairments substantially limit his major life activities is
insufficient summary judgment evidence to prove a disability under
the ADA.

Furthermore, the simple fact that plaintiff could no

longer perform the job duties of the specific job he previously
held does not constitute being precluded from a class of jobs or a
broad range of jobs.

In fact, plaintiff has failed to present any

evidence to establish or support his contention.

Plaintiff simply

has insufficient evidence that any of his major life activities
were substantially limited as defined by the law.

Just because

plaintiff contends his impairments have affected his ability to
work does not trigger coverage under the law.
Thus, the Court finds that plaintiff has failed to satisfy his
burden of proving that he suffers from a “disability” as defined by

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15

the ADA or even creates an issue of fact in dispute.

However, the

analysis set forth below shows that even if plaintiff were disabled
under the ADA, he would still fail to carry his ultimate burden to
recover under the law and facts of this case.
2.

Qualified Individual

The Court also finds that the plaintiff has failed to set
forth a prima facie case of disability discrimination because he
has failed to prove that he was qualified for his position, with or
without reasonable accommodation.

The record is clear that since

plaintiff could not perform any of the duties of his position, he
was not qualified for his position under the law and facts of this
case.
3.

Reasonable Accommodation

Plaintiff offers what he believes to be several reasonable
accommodations

which

the

defendant

could

have

allowed:

being

assigned to the depalletizer machine; being allowed to train other
employees; and, he would have been able to perform his job duties
had his work not been “sabotaged.”

Jacobs has provided summary

judgment evidence to rebut each of these claims.

Plaintiff has

failed to present summary judgment type evidence to create an issue
of material fact which precludes the Court from granting a summary
judgment.
Jacobs points out that the only time plaintiff requested to be
assigned to the depalletizer was in 2006, which falls outside the
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16

scope of this lawsuit. Further, Jacobs contends plaintiff provided
no

evidence

circumstances.

that

this

request

was

reasonable

under

the

Jacobs also notes that plaintiff failed to produce

summary judgment type evidence that he could perform all, and not
just some, of the duties associated with this post.40

As set forth

above, it is not a reasonable accommodation to expect an employer
to create an entirely new position or assign only one function of
a job to an employee in an attempt at accommodation.
In opposition to plaintiff’s request that he be allowed to
train other employees, Jacobs has set forth a legitimate, nondiscriminatory reason for not assigning this task to the plaintiff:
there was no trainer position and no money to support someone who
only performed the task of training.41 Plaintiff has failed to
controvert

Jacobs’

legitimate,

non-discriminatory

reason

for

denying this request.
Finally, Jacobs rebuts plaintiff’s contention that he was
“sabotaged” by his supervisor changing the speed of the lines on
which plaintiff and his co-workers worked.

Jacobs’ legitimate,

non-discriminatory reason for this activity was that the speed at
40

Plaintiff testified in his deposition that he could perform
some of the “cutting” activity required by this machine; however,
this was not an actual job in itself but just one task of many
associated with running this line. See Rec. Doc. No. 15-2, pp.
148-151.
41

Plaintiff admitted in his deposition that he knew the company
was having layoffs at the time this request was made. See Rec.
Doc. No. 15-2, pp. 207-08.
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17

which the line operated was at the discretion of the supervisor and
could be changed to meet production goals. It is important to note
that plaintiff admitted in his deposition that his supervisor sped
up the lines of other Jacobs’ employees, not just Hammond’s.
Plaintiff

has

failed

to

controvert

this

legitimate,

non-

discriminatory reason for the action taken, and has failed to show
that he was singled out on any discriminatory basis in this regard.
The Court finds that plaintiff has failed to carry his burden
of proving he was denied a reasonable accommodation.

Jacobs’

obligation under the law was to provide reasonable accommodation to
an employee who can perform the essential functions of the job with
such accommodation.

Jacobs was not obligated under the law to

create a new position for plaintiff in order to do this. Plaintiff
has also failed to controvert the fact that he could not perform
the essential functions of his job at the time of his termination.
Under these circumstances, no reasonable accommodation was even
required.
4.

Plaintiff’s Violation of Employer Rules

Plaintiff
disability.

contends

he

was

terminated

because

of

his

However, Jacobs contends plaintiff was terminated

solely because he violated the security rules of both Jacobs and
Exxon.

The record is clear that the prohibition of “piggybacking”

or coming into the plant on someone else’s security badge, was
discussed at safety meetings where plaintiff was in attendance.

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18

Under the facts of this case, the Court fails to see how Jacobs’
decision to terminate plaintiff for this admitted wrongful conduct
is in any way connected to plaintiff’s disability.

Plaintiff has

failed to identify any non-disabled individual treated differently
and has totally failed to carry his burden of proof on this claim
or create a material fact in dispute.

As such, plaintiff’s

disability claim shall be dismissed and summary judgment granted in
favor of Jacobs on this claim.
D.

Race Discrimination under Title VII

Because plaintiff does not allege any direct evidence of
discrimination, the Court must apply the McDonnell Douglas burdenshifting analysis.42

To survive summary judgment under McDonnell

Douglas, “the plaintiff must first present evidence of a prima
facie case of discrimination.”43

If the plaintiff presents a prima

facie case of discrimination, then an inference of discrimination
arises, and the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the underlying employment
action.44

If the employer is able to state a legitimate reason for

the employment action, “the inference of discrimination disappears
and

the

plaintiff

must

present

42

evidence

that

the

employer’s

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973).
43

Id. at 317.

44

Id.

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19

proffered reason was mere pretext for racial discrimination.”45
To establish a prima facie case of discrimination, plaintiff
must show that: (1) he is a member of a protected class; (2) he is
qualified for the position; (3) he suffered an adverse employment
action; and (4) he was replaced by someone outside the protected
class or was treated less favorably than other similarly situated
employees outside the protected group.46
Plaintiff, who is African-American, is clearly a member of a
protected class, and he suffered the adverse employment action of
being terminated.

However, the Court finds that plaintiff has

failed to satisfy the second and fourth prongs of his prima facie
case.

First, the discussion set forth earlier in this opinion

establishes that after plaintiff returned to work from an extended
medical leave, he was no longer “qualified” for his position.
Second, plaintiff has failed to present any summary judgment
evidence

that

white

individuals

“piggybacking”

were

rule

or

treated
other

differently
similar

for

violating

the

breaches.

Plaintiff’s only “evidence” consists of his own self-

serving testimony regarding differential treatment.47

45

security

This self

Id.

46

McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir.
1997)(per curiam); Bryan v. McKinsey & Co. Inc., 375 F.3d 358, 360
(5th Cir. 2004).
47

It should be noted that plaintiff’s deposition testimony
includes alleged instances of race discrimination against other
(continued...)
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20

serving “evidence” is simply insufficient under well-established
law to carry plaintiff’s burden of proving discrimination.48
Furthermore, even assuming plaintiff had set forth a prima
facie case of race discrimination, Jacobs has carried its burden of
establishing

a

legitimate,

non-discriminatory

reason

for

his

termination in that plaintiff breached a known security rule.
Plaintiff attempts to make light of this rule in his deposition
testimony, but ultimately plaintiff admits that he entered the
Exxon facility on another employee’s badge, and that he knew such
action was prohibited.

Plaintiff has provided no summary judgment

evidence that Jacobs’ decision to terminate him for violating a
clearly established security rule was a pretext for discrimination
other

than

his

self-serving

testimony

that

he

believed

this

decision was based on his race.
E.

Other Race Discrimination Claims

Plaintiff has also made several claims which the Court has
previously held to be time-barred and outside the scope of the EEOC
charge.

However, out of an abundance of caution, the Court will

47

(...continued)
African-American employees which occurred after plaintiff was
terminated. As such, the testimony of these other employees on
such matters is irrelevant since plaintiff does not have a claim
for promotion denial and because what occurred following
plaintiff’s termination has no relevancy to how he was treated
while employed by the defendant.
48

See EEOC v. Louisiana Office of Community Services, 47 F.3d
1438, 1448 (5th Cir. 1995); Grizzle v. Travelers Health Network,
Inc., 14 F.3d 261, 268 (5th Cir. 1994).
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21

briefly address these claims.
Plaintiff contends his work performance was unduly monitored
by Superintendent James Watts.

However, plaintiff admitted that

part of Watts’ duties was to oversee employee work.

Plaintiff has

presented no evidence that he was monitored more than any other
similarly situated white employees.
Plaintiff complains there was a time his paycheck was not in
its normal pickup location.

However, plaintiff again fails to

rebut Jacobs’ legitimate, non-discriminatory reason for this: the
check was kept in Watts’ office for safekeeping because there was
no safe place to store the check in the shipping area to which
plaintiff had been temporarily assigned.

Plaintiff ultimately

received his check and suffered no damage from this incident.
Plaintiff’s complaints about the adjustment of the speed line
have been addressed in Section B of this opinion and need not be
discussed at length again.
the

Court

finds

discrimination.

Jacobs’

For the same reasons set forth above,
evidence

was

not

a

pretext

for

Jacobs’ contention that the lines were paced at

the discretion of the supervisor and the purpose was increased
production was supported by the evidence in this case.
Plaintiff complains that he was required to cap containers by
hand when the line malfunctioned.

However, the record reflects

that white employees also had to perform this task.
Finally, plaintiff argues he was subjected to drug testing

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22

because of his race. Jacobs has shown that employees who have been
away from work on leave for more than 30 days are subject to this
screening.
somehow

There is simply no evidence to show that plaintiff was

singled

out

for

drug

testing

because

of

his

race.

Plaintiff relies on the deposition testimony of other AfricanAmerican co-workers who claim that black employees who tested
positive for drugs were fired, while white employees who tested
positive were not.

The Court notes the record reveals that

plaintiff was tested and the results were negative.

The plaintiff

returned to work thereafter and was not terminated because of the
drug test. James Moffatt, Administrator of the Occupational Health
Services Department, testified that those drug tested employees
identified by deposition testimony either actually failed drug
tests or never had a positive test.

In all instances, the record

reflects that Jacobs applied this drug policy without regard to
race.
Plaintiff has simply failed to establish a prima facie case of
race discrimination, or to carry his ultimate burden of proving the
legitimate,

non-discriminatory

reasons

pretext for race discrimination.
shall

be

granted

in

favor

of

given

by

Jacobs

are

a

Accordingly, summary judgment
Jacobs

on

all

claims

of

race

discrimination.
F.

Retaliation

Plaintiff also claims he was subjected to retaliation because

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23

of his disability and his race.

To establish a prima facie case of

retaliation, an employee must show: (1) the he engaged in protected
activity; (2) that he was subjected to an adverse employment
action; and (3) there was a causal connection between the protected
activity and the adverse action.49

If the plaintiff successfully

presents a prima facie case of retaliation, the burden shifts to
the employer to provide a legitimate, non-retaliatory reason for
the adverse employment action.50

Upon answering this inquiry, the

burden returns to the plaintiff to prove that the protected conduct
was the “but for” cause of the adverse employment decision.51
Plaintiff has argued, however, that a person bringing a retaliation
claim need only offer evidence that retaliation was a factor, i.e.,
that the defendant had “mixed motives,” and such evidence may be
circumstantial. The Fifth Circuit has recently explained why “butfor” causation is still the ultimate requirement:
But as we explained in Long v. Eastfield
College, 88 F.3d 300 (5th Cir. 1996), there are
different tests for causation within the
McDonnell Douglas framework - the initial

49

Stewart v. Miss. Transp. Comm’n, 586 F.3d 321 (5th Cir. 2009);
Taylor v. United Parcel Service, Inc., 554 F.3d 510, 523 (5th Cir.
2008); Burlington Northern and Santa Fe Railroad Company v. White,
548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).
50

Hernandez v. Yellow Transp., Inc., 641 F.3d 118, 129 (5th Cir.
2011)(citing Long v. Eastfield College, 88 F.3d 300, 304-05 (5th
Cir. 1996)).
51

Id., citing Long, 88 F.2d at 305, n 4 (citation omitted).
See also Septimus v. University of Houston, 399 F.3d 601 (5th Cir.
2005).
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24

“causal-link” required for making out a prima
facie case, and the “but for” causation
required after the employer has offered a
legitimate, non-discriminatory justification.
Id. at 305 n.4. ...
Indeed, the Court’s
opinion in Xerox affirms that the Price
Waterhouse mixed motive approach as applied in
the
retaliation
context
preserves
an
employer’s ability to escape liability by
refuting but for causation. Xerox, 602 F.3d
at 333 (“[T]he mixed-motives theory is
probably best viewed as a defense for an
employer. This ‘defense’ allows the employer
- once the employee presents evidence that an
illegitimate reason was a motivating factor,
for the challenged employment action - to show
that it would have made the same decision even
without consideration of the prohibited
factor.”
(emphasis
added)(footnote
and
internal quotation marks omitted)); see also
Manaway v. Med. Ctr. Of Southeast Tex., 430
Fed. Appx. 317 (5th Cir. 2011)(“The burden then
shifts back to the employee to ‘prove that the
protected conduct was a “but for” cause of the
adverse
employment
decision.’”
(quoting
Hernandez, 641 F.3d at 129)).
Thus, our
decision in Xerox did not dispense with this
final “but for” requirement for avoiding
summary judgment.52
Assuming arguendo, that plaintiff has made out a prima facie
case and Jacobs has offered a legitimate, non-retaliatory reason
for

the

adverse

employment

action,

plaintiff

has

failed

to

establish the “but for” causation required by the McDonnell Douglas
framework because he failed to offer sufficient proof that any
alleged retaliatory motive was a necessary cause of the decision to
terminate him. A plaintiff can only avoid summary judgment on “but

52

Nunley v. City of Waco, 440 Fed. Appx. 275, 280, 2011 WL
3861678, *5 (5th Cir. Sept. 1, 2011).
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25

for” causation by demonstrating “a conflict in substantial evidence
on this ultimate issue.”53

Evidence is “substantial” if it is of

a quality and weight such that “reasonable and fair minded men in
the

exercise

of

impartial

judgment

might

reach

different

conclusions.”54 The Court finds that plaintiff has not demonstrated
such a conflict under the law and facts of this case.
There is nothing in the record, and indeed plaintiff has
submitted no summary judgment evidence which would show that
seeking a reasonable accommodation or his race was the “but for”
cause of his termination.

The Court is also convinced that Jacobs

would have fired plaintiff for his security breach regardless of
any other motivating factors.

Thus, Jacobs is entitled to summary

judgment on the plaintiff’s claim of retaliation.
III. Conclusion55
For the reasons set forth above, the Court finds that the
plaintiff has failed to carry his burden of proof in establishing
his claims for disability discrimination under the ADA, race
discrimination under Title VII, or retaliation.

Thus, summary

judgment shall be granted in favor of Jacobs dismissing these
claims with prejudice.

The Court also grants summary judgment on

53

Hernandez, 641 F.3d at 132 (quoting Long, 88 F.3d at 308).

54

Id.

55

The Court has considered all of the contentions of the
parties whether or not specifically addressed herein.
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26

all of the other federal claims which plaintiff failed to include
in his EEOC complaint and which are also time barred.

The Court

declines to exercise supplemental jurisdiction56 over plaintiff’s
remaining state law claims for emotional distress, mental anguish,
humiliation, and embarrassment.

These claims will be dismissed

without prejudice.
Therefore:
IT IS ORDERED that defendant’s motion for summary judgment
shall be granted on all of plaintiff’s federal claims based on
disability discrimination, race discrimination, and retaliation.
These claims shall be dismissed with prejudice.
IT IS FURTHER ORDERED that plaintiff’s state law claims shall
be dismissed without prejudice.
Judgment shall be entered accordingly.
Baton Rouge, Louisiana, February 9, 2012.

S
FRANK J. POLOZOLA

MIDDLE DISTRICT OF LOUISIANA

56

See 28 U.S.C. § 1367.

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