McClung v. Gautreaux et al

Filing 44

RULING re 31 MOTION for Summary Judgment filed by Shell Chemical, LP. Signed by Magistrate Judge C. Michael Hill on 09/25/2012. (Williams, Lysandra)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LEWIS P. McCLUNG, JR.

CIVIL ACTION NO. 11-0263

VERSUS

MAGISTRATE JUDGE HILL

SHELL CHEMICAL, LP, ET AL

BY CONSENT OF THE PARTIES

RULING ON MOTION FOR SUMMARY JUDGMENT
Pending before the undersigned is the Motion for Summary Judgment filed by
defendant, Shell Chemical, LP (“Shell”), on July 20, 2012. [rec. doc. 31].1 Plaintiff,
Lewis P. McClung, Jr. (“McClung”), has filed opposition. [rec. doc. 41]. Shell filed a
reply brief. [rec. doc. 43]. The matter was submitted on briefs.
For the following reasons, the motion is GRANTED.
Background
McClung brought this employment discrimination action against his former
employer, Shell, and three Shell employees, Randy Gautreaux, Ken Yurik, and Craig
Inman, claiming that he was unlawfully terminated against on the basis of his race, sex,
and age. He filed suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e et seq.; the Age Discrimination in Employment Act of 1969 (“ADEA”), 29 U.S.C.
§ 621, and the Louisiana Employment Discrimination Law, La. Rev. Stat. § 23:301 et seq.
Additionally, he asserts claims for Shell’s alleged nonpayment of wages under the

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All claims against the other defendants, Randy Gautreaux, Ken Yurik, and Craig Inman,
were previously dismissed by the Court. [rec. doc. 21].

Louisiana Private Works Act, La. Rev. Stat. §§ 9:4802(G)(2) and (3), and Public Works
Act, La. Rev. Stat. § 38:442.
McClung was employed by Shell at its plant in Geismar, Louisiana in 1976.
During his employment, he worked as a process operator, driver, dock loader, in
distribution, in maintenance, and in logistics. In 2004, Shell decided to contract out its
logistics work, and McClung was given the opportunity to move either to the Utilities
Department or the Quality Assurance (“QA”) Department. He chose to go to QA, which
involves work in the plant’s laboratories.
McClung’s supervisor in the QA Department from 2006 to early 2009, was Ken
Yurik (“Yurik”). When Yurik retired in 2009, Craig Inman (“Inman”) became
McClung’s supervisor. At all times relevant to this lawsuit, Yurik reported to the QA
Department Manager, Randy Gautreaux (“Gautreaux”).
Each year, McClung’s supervisors in the QA department met with McClung, gave
him a written performance evaluation, and discussed it with him. On June 28, 2007,
Yurik gave McClung a performance evaluation in which he noted as follows:
Multi-tasking, prioritizing work, time management and work pace are
opportunity areas for Paul. People skills are important considering the
number of plant customers QA has.
Paul needs to demonstrate thorough knowledge of his job. (Not needing so
much help from others)
Paul’s performance is not at a level where he could serve on a department
or plant team.
Paul was disappointed with this performance review. He did agree to do
“whatever it takes” to improve. ... We agreed that we will be discussing an
improvement plan.
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[rec. doc. 31, Exhibit 2, pp. 6-7]. In August of 2007, Yurik changed McClung’s schedule
to a day shift in order to give McClung more time to do training.
On October 23, 2008, Yurik gave McClung another performance evaluation, in
which he rated McClung as “moderately effective” in two categories and “not effective”
in two categories. Yurik’s comments included the following:
Some of the items in this category [Business Orientation and Results] Paul
continues to struggle with. Work pace and multi tasking are a real
challenge/opportunity for him. He cannot consistently get his results out in
a timely manner. He cannot consistently work independently. If something
goes wrong with a test, his first response is to seek assistance rather than
troubleshoot the problem himself. He gets aggravated very easily which has
an adverse effect on the other analysts. He often leaves work undone so
that the other analysts have to complete what’s left, or he has to try to
complete it the next day which puts him further behind.
[rec. doc. 31, Exhibit 5, p. 4].
Because McClung’s performance had not progressed satisfactorily, Yurik put
McClung on a Performance Improvement Plan (“PIP”), and discussed the PIP with
McClung. [rec. doc. 31, Exhibit 6]. The PIP listed five performance expectations and
provided that:
Failure to meet all of the performance expectations set forth in this plan
could lead to termination of your employment with Shell.
[rec. doc. 31, Exhibit 6, p. 2].
Shortly after McClung signed the 2008 PIP, he went on vacation. When he
returned, Yurik had retired. In the spring of 2009, Inman, with whom McClung had
worked in the lab, replaced Yurik as the QA Department’s supervisor.
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On June 2, 2009, Inman met with McClung, gave him a revised PIP, and discussed
the updated performance expectations with him. The revised PIP provided as follows:
[S]ustained improvement must be demonstrated beyond July 31, 2009, or
your continued employment with the Company will be in jeopardy.
[rec. doc. 31, Exhibit 7, p. 4]. McClung signed the revised PIP on June 2, 2009.
After McClurg signed the revised PIP, Inman met with McClung periodically to
discuss McClung’s performance. McClung completed the PIP satisfactorily, and met
with Inman on July 30, 2009, to discuss his performance expectations. At the conclusion
of the meeting, McClung signed a document in which Inman advised as follows:
As stated in our meeting today, you are expected to sustain this improved
level of performance in the future and I will continue to monitor your
performance. If your level of performance is not sustained, an additional
PIP will not be an option and your continued employment with the
Company will be in jeopardy.
[rec. doc. 31, Exhibit 8].
On October 19, 2009, McClung had a confrontation with his co-worker, Felicia
Graves (“Graves”), because he thought she was giving credit for running extra samples,
for which Shell gave perks, to another employee instead of him. He had another incident
with Graves on November 25, 2009, in which he admitted that he raised his voice. After
the second incident, Graves called Inman, who was on vacation, at his home. Inman
came to the plant and discussed the incident with McClung, Graves, and other employees
who were present at the time. Following the meeting, Inman directed McClung to
apologize to Graves.
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Subsequently, Inman and Gautreaux conducted an investigation of the second
incident. After the investigation, Inman sat down with McClung and told him that this
type of incident could not happen anymore.
Following the altercation with Graves, McClung had another incident in which he
became upset when two female employees, Lori Girouard (“Girouard”) and Angie Pruett
(“Pruett”), received special recognition for running samples during a freeze when
McClurg believed that they did not deserve any credit. He commented to them that they
“could put the samples on the counter or where the sun don’t shine.” [rec. doc. 31,
Exhibit A, p. 64]. McClung called Inman, who instructed McClung to apologize to the
women.
The following day, McClung met with Pruett, who said something that made him
angry. Afterwards, he pulled her access card out of the computer and threw it on the
table. He then called Inman and asked for a couple of days off. After McClung had been
at home for three days, Gautreaux called him and told him that the latest incident was
under investigation.
Eventually, Gautreaux called McClung back to the plant for a meeting with
Gautreaux, Inman, and Shell’s Employee Relations Advisor, Andrea Pechal (“Pechal”).
At that time, they informed McClung that he was going to be terminated that day because
of a decline in his work performance and his communication skills. They gave MClung

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the option of retirement in lieu of termination. McClung chose to retire, and handwrote a
letter that day, March 26, 2010, stating as follows:
I Lewis P. McClung Jr. I have elected to retire in lieu of termination
effective April 1, 2010.
[rec. doc. 31, Exhibit 10].
McClung handed the letter to management on March 26, 2010, which was his last
day at the plant.
On March 31, 2011, McClung filed suit against defendants in the Twenty-Third
Judicial District Court for the Parish of Ascension, State of Louisiana. Defendants
removed the action to this Court on April 21, 2011.
On July 20, 2012, Shell filed the instant Motion for Summary Judgment [rec. doc.
31] seeking dismissal on the grounds that: (1) McClung’s federal discrimination and
retaliation claims are untimely; (2) McClung’s state law discrimination and retaliation
claims are also untimely; (3) alternatively, McClung’s claims discrimination and
retaliation claims lack merit, and (4) the Louisiana Public and Private Works Acts are
inapplicable to McClung’s claims.2

2

McClung does not oppose dismissal of his claims under the Louisiana Public and Private
Works Acts. [rec. doc. 43, p. 1]. Accordingly, those claims are hereby DISMISSED.
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Law and Analysis
Standard for Motion for Summary Judgment
Fed. R. Civ. Proc. 56(a) provides that the court shall grant summary judgment if
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. The standard for granting summary judgment
remains unchanged after the 2010 amendments. Advisory Committee Notes to
Subdivision (a).
Prescription
McClung brought his claims against Shell pursuant to Title VII, the ADEA, and
Louisiana’s Employment Discrimination Law, LA. REV. STAT. 23:301 et seq.
(“LEDL”).
Employment discrimination plaintiffs must exhaust administrative remedies before
pursuing claims in federal court. Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th
Cir. 2002). Exhaustion occurs when the plaintiff files a timely charge with the EEOC
and receives a statutory notice of right to sue. Id. (citing Dao v. Auchan
Hypermarket, 96 F.3d 787, 788-89 (5th Cir.1996)). The EEOC charge must be filed
within 300 days from the date the unlawful employment practice occurred. Harris v.
State Farm Fire & Cas.Co., 178 F.Supp.2d 680, 689 (W.D. La. 2001) (citing 42 U.S.C.
§2000e–5(e)(1); 29 U.S.C. § 626(d)). Thus, any claims arising more than 300 days prior
to the filing of the EEOC charge are time-barred. This requirement to file a lawsuit

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within the limitation period is strictly construed. Duron v. Albertson’s LLC, 560 F.3d
288, 289 (5th Cir. 2009).
The Supreme Court has provided guidance in determining the sufficiency of notice
required to start the limitations period in a Title VII or ADEA case. Phillips v. Leggett &
Platt, Inc., 658 F.3d 452, 455 (5th Cir. 2011) (citing Delaware State College v. Ricks, 449
U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980)). In the context of a
non-tenured professor’s teaching contract, Ricks held that the filing limitations periods
commenced at the time the tenure decision was made and communicated to the plaintiff,
even though one of the effects of the denial of tenure – the eventual loss of a teaching
position – did not occur until later. Id. at 258. Thus, the proper focus is at “the time
of the discriminatory acts, not upon the time at which the consequences of the acts
became most painful.” Phillips, 658 F.3d at 456 (citing Chardon v. Fernandez, 454 U.S.
6, 8, 102 S.Ct. 28, 70 L.Ed. 2d 6 (1981)).
Louisiana courts and federal courts applying Louisiana law have
routinely looked to federal jurisprudence to interpret Louisiana employment
discrimination statutes. Smith v. Amedisys Inc., 298 F.3d 434, 448 (5th Cir. 2002) (citing
Nichols v. Lewis Grocer, 138 F.3d 563, 566 (5th Cir.1998)). Under Louisiana law, a
cause of action based on discrimination is a delictual action subject to a one year
prescriptive period which commences the day the injury or damage is sustained. Eastin v.
Entergy Corp., 2003-1030 (La. 2/6/04); 865 So.2d 49, 53; La. Civ. Code Ann. art. 3492.

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Louisiana applies the two seminal United States Supreme Court cases, Chardon and
Ricks, to hold that the damage is sustained in any employment discrimination case at the
earlier of the date the employee is informed of his termination or his actual separation
from employment. Id.
Here, McClung met with with Gautreaux, Inman, and Pechal on March 26, 2010.
At that time, they informed McClung that he was going to be terminated because of a
decline in his work performance and his communication skills. They gave him the option
of retirement instead of termination. That same day, McClung chose to retire, and
confirmed his intentions in a handwritten letter. McClung handed the letter to
management on March 26, 2010, which was his last day at the plant.
Under Ricks, the time period for McClung to file an EEOC charge commenced on
March 26, 2010, which was the day in which he was notified that he was being
terminated. McClung was required to file an EEOC charge by January 20, 2011, which
was the 300th day after he was notified of his termination. However, he did not file his
EEOC claim until March 16, 2011, which was almost two months later. The EEOC
confirmed that McClung’s claim was time-barred in its Dismissal and Notice of Rights.
[rec. doc. 31, Exhibit 14].
In response to Shell’s argument, McClung asserts that the doctrine of contra non
valentum should suspend prescription on his claims. The doctrine of contra non valentem
provides that prescription does not run against one who is ignorant of the facts upon

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which their cause of action is based and applies an exception to the statutory prescriptive
period where in fact and for good cause a plaintiff is unable to exercise his cause of
action when it accrues. Eastin, supra, at 55.
The Louisiana Supreme Court recognizes four limited situations where the
doctrine applies to prevent the running of prescription. Id. The only argument raised by
McClung in this area relate to the fourth element, known as the “discovery rule,” and
provides that prescription commences on the date the injured party discovers or should
have discovered the facts upon which his cause of action is based. Id. (citing Griffin
v.Kinberger, 507 So.2d 821 (La.1987)). This standard is exceedingly stringent and
should be applied only in exceptional circumstances. Id.
Here, McClung asserts that this Court should apply the doctrine of contra non
valentum to the limitations period applicable to his discrimination claims because he was
not aware that he had a viable cause of action against the defendant until he contacted the
EEOC. [rec. doc. 41, p. 2]. A similar argument was raised in Eastin, where 11 plaintiffs
filed an age discrimination suit under Louisiana law. Defendants argued that plaintiffs’
claims had prescribed as they had been terminated more than one year before suit was
filed. In response, plaintiffs asserted that the doctrine of contra non valentem applied to
suspend prescription because they were not aware of an alleged pattern of discrimination
and, therefore, had no way of knowing that they had a cause of action within one year of
their terminations. The court found that plaintiff’s request was “simply untenable”,

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reasoning as follows:
Plaintiffs may not simply sit on their hands and do nothing to investigate
their termination and expect their actions to be deemed reasonable. Under
the facts of the instant case, where the plaintiffs alleged absolutely no active
role in determining if their terminations were for unlawful reasons and
made no inquiry into the reasons for their terminations, the plaintiff's delay
in filing suit was not reasonable and does not merit the application of the
doctrine of contra non valentem. . . . Moreover, plaintiffs have alleged no
facts which lead this court to believe that they were somehow prevented
from filing their suits in a timely manner. Their delay can only be attributed
to their own inaction.
Id. at 56.
Here, McClung admits in his opposition brief that “he was painfully aware that he
was not being treated fairly.” [rec. doc. 41, p. 3]. Despite this, he took no action to
determine if any legal remedies were available to him. The facts in this case show that
prior to his termination, McClung had several confrontations with co-workers and thought
that they were unfairly given undue credit. He certainly was not “ignorant of the facts”
upon which his cause of action was based. Eastin at 55. As in Eastin, his delay in filing
suit was simply unreasonable, and does not merit the application of the doctrine of contra
non valentem.
Because McClung filed his EEOC charge more than 300 days after the day in
which he was notified that he was being terminated, and no exception applies, his claims
have prescribed under federal law. Additionally, because his suit was filed more than one
year from the date the injury or damage (i.e., termination) was sustained, his claims have
prescribed under state law.
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Conclusion
Accordingly, IT IS ORDERED that the motion for summary judgment be
GRANTED, and that all claims against defendant, Shell Chemical, LP, be DISMISSED
WITH PREJUDICE.
Signed September 25, 2012, at Lafayette, Louisiana.

Copy sent: D. Bonaventure
On: 9-26-2012
By: MBD

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