Robertson v. The Home Depot, Inc.

Filing 82

RULING AND ORDER granting 24 Motion for Summary Judgment. Plaintiff's claims are hereby DISMISSED WITH PREJUDICE. Signed by Judge John W. deGravelles on 03/22/2017. (KDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LAWRENCE E. ROBERTSON
CIVIL ACTION
v.
NO. 14-806-JWD-EWD
THE HOME DEPOT, INC.
RULING AND ORDER
This matter comes before the Court on Home Depot’s Motion for Summary Judgment
(Doc. 24) filed by Defendant The Home Depot U.S.A., Inc. Plaintiff Lawrence Robertson
opposes the motion. (Doc. 52-2)1 Defendant has filed a reply. (Doc. 44.) Oral argument is not
necessary. Having carefully considered the law, the facts in the record, and the arguments and
submissions of the parties, the Court finds that Defendant’s motion should be granted in its
entirety, and all of Plaintiff’s claims should be dismissed with prejudice.
I.

Relevant Factual Background
A. Preliminary Note
Preliminarily, the Court notes that almost all of the facts in this section are taken from the

Defendant’s Statement of Uncontested Facts. (Doc. 24-1.) There are four main reasons for this.
First, as the Court explained in its February 17, 2017, Ruling and Order, Plaintiff did not
file a statement of contested facts, in violation of Local Civil Rule 56(b). (Doc. 74 at 2–3.) The
problem was exacerbated when the Court gave the Plaintiff an opportunity to re-file those
exhibits—and only those exhibits—that had previously been filed, so that Plaintiff could clean
up the record. (See Doc. 48.) Contrary to the Court’s order, Plaintiff filed, among other

1

Plaintiff’s numerous attempts to file oppositions and exhibits have been chronicled elsewhere in the record. For an
extensive review of the procedural history, see the Court’s February 17, 2017, Ruling and Order (Doc. 74).

1

previously unfiled things, an untimely statement of contested facts. To make matters even
worse, Plaintiff misrepresented to the Court that it was an “amended and supplemental” one
when no prior statement of contested facts had been filed. (Doc. 74 at 13–14.) Considering the
Plaintiff’s violation of the local rules and Court order as well as his misrepresentations, the Court
struck Plaintiff’s untimely statement of contested facts and deemed Defendant’s Statement of
Uncontested Facts admitted for purposes of the motion. (Doc. 74 at 13–14.)
Second, most of Plaintiff’s exhibits that were filed into the record have been stricken.
Because, in violation of the Court’s prior order (Doc. 48), the Plaintiff filed exhibits on June 6,
2016, that had not been previously filed into the record (see Doc. 74 at 12–16), a large number of
exhibits were stricken. (See Doc. 78, striking Docs. 54-5, 54-7 (page 4 only), 54-8, 54-11, 55-1,
55-2, 55-3, 55-4, 55-5, 55-6, 56-1, 56-2, & 56-4).) Plaintiff’s audio recordings (Docs. 40-1–4)
were later stricken from the record pursuant to Fed. R. Civ. P. 37(c)(1). (See Doc. 77.) Thus,
Plaintiff had little evidence remaining in the record to oppose Defendant’s motion.
Third, most of Plaintiff’s remaining exhibits in the record (Docs. 54-1, 54-2, 54-3, 54-4,
54-6, 54-7 (pages 1–3), 54-9, 54-10, and 40-8) consist of unauthenticated documents. These
cannot be considered for the instant motion. As this Court has stated:
“To be considered by the court, ‘documents must be authenticated by and
attached to an affidavit that meets the requirements of Rule 56(e) and the affiant
must be a person through whom the exhibits could be admitted into evidence.’. . .
A document which lacks a proper foundation to authenticate it cannot be used to
support a motion for summary judgment.” Hal Roach Studios, Inc. v. Richard
Feiner and Co., Inc ., 896 F.2d 1542 (9th Cir. 1989). See also Martin v. John W.
Stone Oil Distributor, Inc., 819 F.2d 547 (5th Cir. 1987) (“Unsworn documents
are . . . not appropriate for consideration [on motion for summary judgment]”);
Moffett v. Jones County, 2009 WL 1515119 (S.D. Miss., June 1, 2009) (“The
records are not certified . . . nor sworn in any way, thus they are inadmissible”);
Rizzuto v. Allstate Ins. Co., 2009 WL 1158677 (E.D. La., April 27, 2009) (same);
10A Charles Alan Wright, et al., Federal Practice & Procedure § 2722 (3rd
ed.1998).

2

Hall v. Johnson, No. 12-99, 2013 WL 870230, at *1 n. 1 (M.D. La. Mar. 7, 2013). Thus,
because most of Plaintiff’s remaining evidence has not been properly authenticated, these
exhibits cannot support the Plaintiff’s opposition. Nevertheless, the Court notes that many of
these documents were submitted by Home Depot as well, so they have been considered anyway.
(See Doc. 24-3 at 67–68, 70–71, 73–75, 77–78; Doc. 24-4 at 6–11.)
Fourth, it appears as though Plaintiff has submitted a thirty-eight page part of his
deposition that was not struck. (Doc. 56-3.)2 However, Plaintiff’s memorandum in support does
not provide a single citation to the record for any portion of this part of the deposition. (See Doc.
51-2)3 Without specific citations to the record, the Court will not consider this exhibit. As the
Fifth Circuit has explained:
When evidence exists in the summary judgment record but the nonmovant fails
even to refer to it in the response to the motion for summary judgment, that
evidence is not properly before the district court. See Ragas v. Tennessee Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); Skotak v. Tenneco Resins, Inc.,
953 F.2d 909, 916 (5th Cir. 1992), cert. denied, 506 U.S. 832, 113 S. Ct. 98, 121
L. Ed. 2d 59 (1992). “Rule 56 does not impose upon the district court a duty to
sift through the record in search of evidence to support a party's opposition to
summary judgment.” Ragas, 136 F.3d at 458; [Stults v. Conoco, Inc., 76 F.3d 651,
657 (5th Cir. 1996)]; Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert.
denied, 513 U.S. 871, 115 S. Ct. 195, 130 L.Ed.2d 127 (1994); Skotak, 953 F.2d
at 916 n. 7; see also Nissho–Iwai American Corp. v. Kline, 845 F.2d 1300, 1307
(5th Cir. 1988) (it is not necessary “that the entire record in the case . . . be
searched and found bereft of a genuine issue of material fact before summary
judgment may be properly entered”); cf. U.S. v. Dunkel, 927 F.2d 955, 956 (7th
Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”).
Because [Plaintiff] did not identify any evidence of damages in his summary
judgment response, the evidence was not properly before the district court and
will not be considered here.

2
Plaintiff also submitted eleven pages of the index to this deposition that have not been struck. (Doc. 56-5.) But, of
course, this index provides no evidence for the Court to consider.
3
The deposition excerpt in evidence covers pages 188–226 of Plaintiff’s deposition. (Doc. 56-3.) The only
reference Plaintiff makes to specific pages of the deposition in his opposition is on page 19, which cites to “Depo.
Pgs. 173-3 to 182-21.” (Doc. 51-2 at 19.)

3

Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). The same reasoning applies here and
leads the Court generally to disregard the portions of Plaintiffs’ deposition that have not been
stricken.
For these reasons, most of the facts before the Court come from the Defendant’s
Statement of Uncontested Facts, all of which have been deemed admitted. The Court will now
proceed with a recitation of those facts.
B. Plaintiff’s Employment History at Home Depot
Plaintiff, an African-American male, began working for Home Depot in the Baton Rouge
area as a sales associate in approximately 2002. (Doc. 24-1 at 1.) After about a year, Plaintiff
left Home Depot to work at another retailer. (Doc. 24-1 at 1.)
Plaintiff reapplied at Home Depot in 2005, following his termination by another retailer.
(Doc. 24-1 at 1.) Plaintiff was rehired by Home Depot, this time as a Department Supervisor.
(Doc. 24-1 at 1.)
In February 2006, Plaintiff was promoted to a Salaried Assistant Store Manager position
at Home Depot’s North Baton Rouge store on Airline Highway. (Doc. 24-1 at 2.) Plaintiff then
transferred to Home Depot’s Baton Rouge store on Coursey Boulevard. (Doc. 24-1 at 2.)
Next, Plaintiff transferred to Home Depot’s Denham Springs store before ultimately
returning to Home Depot’s North Baton Rouge store on Airline Highway in 2011. (Doc. 24-1 at
2.) When Plaintiff transferred back to the North Baton Rouge store in August 2011, a Store
Manager was not in place. (Doc. 24-1 at 2.)
Shortly after Plaintiff arrived at the North Baton Rouge store, David Gibson became
Store Manager of that store and therefore became Plaintiff’s direct supervisor. (Doc. 24-1 at 2.)

4

David Gibson is an African-American male born on June 30, 1964, or nearly ten years before
Plaintiff’s, who was born on November 12, 1973. (Doc. 24-1 at 2.)
C. Plaintiff and David Gibson
1. Plaintiff’s Thoughts as to Why the Relationship Went South
Plaintiff alleges that a few months after Mr. Gibson became the Store Manager of the
North Baton Rouge store, their relationship started going downhill. (Doc. 24-1 at 2.)
Specifically, Plaintiff alleges that one morning when he was responsible for opening the North
Baton Rouge store, there was a rainstorm which caused signs outside to blow over and tree
branches to fall. (Doc. 24-1 at 2.) Plaintiff said he did not send any employees outside to clean
up the front of the store during the storm. (Doc. 24-1 at 2.)
Plaintiff alleges that later that day when the weather calmed down, Mr. Gibson drove up
to the front of the store and saw that “the front [was] kind of in disarray.” (Doc. 24-1 at 3.)
Plaintiff alleges that when he met Mr. Gibson outside, Mr. Gibson started to “curse” during the
conversation with Plaintiff because of the condition of the front of the store. (Doc. 24-1 at 3.)
Plaintiff testified “[a]nd I stopped him in his tracks. Don’t disrespect – don’t curse me when you
are having a conversation with me. If you want to talk to me, you respect me as a man, and I’ll
give you respect as a man. Don’t curse me. Actually talk to me. Don’t do it.” (Doc. 24-1 at 3.)
Plaintiff testified that from that point “I think it just went down the line from there. You
know, but he’s not going to talk to me any kind of way, and I’m going to sit back and let you do
it.” (Doc. 24-1 at 3.) Plaintiff testified that after this occurred, Mr. Gibson stopped doing store
walks with Plaintiff through his departments to offer advice and suggestions and stopped
assigning Plaintiff specific days when he could concentrate on completing specific tasks in his
departments. (Doc. 24-1 at 3.) Plaintiff also testified that after this incident with Mr. Gibson, Mr.

5

Gibson might see Plaintiff standing in an aisle and would not speak to him and would walk the
other way. (Doc. 24-1 at 3.)
2. Plaintiff’s 2012 Yearly Evaluation
Plaintiff alleges that Mr. Gibson’s “personal” attack against him continued with
Plaintiff’s fiscal year 2012 Performance and Development Summary, or yearly evaluation. (Doc.
24-1 at 3.) Plaintiff refused to sign the evaluation. (Doc. 24-1 at 4.) Plaintiff alleges it was
contradictory. (Doc. 24-1 at 4.) Plaintiff also had issues with the following statements in the
review:
Arrogant: Self confident is a great attribute but it can be seen as Arrogant.
Lawrence needs to be more approachable and warm to customers and associates,
think about his response to customers and associates.
Arrogant: Self confidence gives off a sense of cold and aloof, makes others feel
inferior.
(Doc. 24-1 at 4.) Plaintiff felt as though this was a “personal attack because it has nothing to do
with my work ethics or my performance.” (Doc. 24-1 at 4.) Plaintiff also felt he should have
been marked as a “Top Performer” rather than a “Valued Associate” because “[o]nce again, I
continued to be one of the best[.]” (Doc. 24-1 at 4.)
Plaintiff admitted his fiscal year 2012 review was for the first full year that he and Mr.
Gibson worked together. (Doc. 24-1 at 4.) Plaintiff also admitted that his review was Mr.
Gibson’s opinion, even if Plaintiff himself disagreed with it. (Doc. 24-1 at 4.) Further, in
Plaintiff’s fiscal year 2012 review, Mr. Gibson noted that he believed Plaintiff would be ready
for a Store Manager position “within 1 year if he works on the develop[ment].” (Doc. 24-1 at 4.)
The review also contains other positive comments, such as “[k]nows how business works;
knowledgeable in current and possible future policies, practices and trends. Is aware of how
strategies and tactics work in the marketplace.” (Doc. 24-1 at 4.)
6

3. Plaintiff’s July 24, 2013, Disciplinary Notice
Plaintiff alleges that Mr. Gibson continued his personal attack against him on or around
July 24, 2013, when Mr. Gibson issued Plaintiff a discipline notice. (Doc. 24-1 at 4.) That
Progressive Discipline Notice referred to certain performance deficiencies noted by Mr. Gibson,
including:


During week 21/22 receiving associate Lenny went out on an LOA. Lawrence did not
react to the situation from a leadership perspective to ensure the receiving DH had the
required help to perform his daily duties as well as breakdown pallets of freight which
caused a congestion of freight in receiving.



Lawrence has not displayed the necessary engagement with the day and night Receiving
DS’s.



Lawrence’s engagement with the Inventory process was substandard. There was a
perceived lack of sense of urgency and insufficient follow up on the overhead checklist.



The Front end score card has been below company standards for the last 3 weeks and
Lawrence has not implemented a plan of action to course correct the situation.



Lawrence has failed to consistently ensure all Will Calls have specific locations and
required notes in the system by setting expectations and following up with his team to
ensure compliance.



The Book and Physical report was not worked in over a month leading up to inventory.

(Doc. 24-1 at 5.) The discipline notice also outlined steps Plaintiff had to take to improve his
performance. (Doc. 24-1 at 5.)
Plaintiff alleges that Mr. Gibson allowed three associates to take a weekend off which he
alleges led to the shortage of staffing in the receiving department. (Doc. 24-1 at 5.) Plaintiff also
denied that the “Front End score card” was below company standards. (Doc. 24-1 at 5.) Plaintiff
refused to sign the discipline notice acknowledging that he received it. (Doc. 24-1 at 5.)

7

Plaintiff once again alleged that the discipline notice was “personal” in nature. (Doc. 24-1
at 6.) Plaintiff testified that he believed it went back to Mr. Gibson being threatened by his
(Plaintiff’s) standing within the company. (Doc. 24-1 at 6.)
4. The Berda Cage Issue
More than a week before Plaintiff’s counseling of July 24, 2013, Mr. Gibson initiated a
call with Home Depot’s Associate Advice and Counsel Group (“AACG”)4 regarding a possible
integrity issue with one of the hourly associates at the North Baton Rouge store, Berda Cage.
(Doc. 24-1 at 6.) Mr. Gibson noted to the AACG that Ms. Cage had an unusual amount of bad
time “punches” from February 2013 through July 2013. (Doc. 24-1 at 6.)
Mr. Gibson was made aware of this abnormality by the District Human Resources
Manager, Kevin Kydd, and contacted the AACG for advice as to how to handle the issue. (Doc.
24-1 at 6.) The AACG initiated an investigation of its own, and learned that Ms. Cage would
often arrive at work when the store was busy, and would start helping customers before she
punched in for work. (Doc. 24-1 at 6.) The AACG also learned that Ms. Cage had been
informed by the bookkeeper of the North Baton Rouge store about the excessive missed time
punches and that she needed to make sure to punch in when she arrived at work. (Doc. 24-1 at 6.)
Plaintiff was interviewed regarding Ms. Cage’s missed punches. (Doc. 24-1 at 6.) In that
interview and in a follow-up email sent by Plaintiff on July 25, 2013 to an AACG representative,
Plaintiff confirmed that Ms. Cage would often report to work and before clocking in, would see
the Home Depot service desk backed up and would begin working before clocking in. (Doc. 24-1
at 7.)

4

“The AACG is Home Depot’s centralized Home Resources call center located at Home Depot’s Store Support
Center in Atlanta, GA. It is staffed with human resources managers who are available to counsel with managers and
supervisors and associates regarding any work-related issues.” (Doc. 24-4 at 3 n. 1.)

8

On July 27, 2013, the AACG recommended that Ms. Cage be counseled for “working off
the clock.” (Doc. 24-1 at 7.)
On the same day, the AACG also recommended that Plaintiff be counseled for “ ‘ . . .
directing, allowing, suggesting or asking an associate to work off the clock.’ The OASM
(Plaintiff) knew the DH was working off the clock as evidenced by his interview and written
statement.” (Doc. 24-1 at 7.) The AACG relayed this recommendation to Mr. Kidd. (Doc. 24-1
at 7.) However, before Plaintiff could be counseled, he went on vacation and then on a leave of
absence. (Doc. 24-1 at 7.)
D. Plaintiff’s Pre-Leave Email
Around the time of the Berda Cage investigation and Plaintiff’s July 25, 2013 email
regarding Ms. Cage, Plaintiff went on vacation. (Doc. 24-1 at 7.) He returned to work for one
day and then went on FMLA leave for “stress behind work” and due to his mother’s poor health.
(Doc. 24-1 at 7.)
On July 31, 2013, before Plaintiff went on FMLA leave, he sent an email to Frank Blake
(Home Depot’s CEO at the time), Marvin Ellison (Home Depot’s COO at the time) and Ann
Marie Campbell (a Home Depot Divisional President at the time). (Doc. 24-1 at 7.) In that
email, Plaintiff alleges that the Store Manager, David Gibson, and the District Team had
“personal vendettas” against him. (Doc. 24-1 at 8; Doc. 24-3 at 70.) Plaintiff referred to the
alleged cursing incident with Mr. Gibson outlined above. (Doc. 24-1 at 8.) Plaintiff stated in the
email that “from that point everything became personal.” (Doc. 24-1 at 8; Doc. 24-3 at 70.)
Plaintiff then referenced his annual review, and stated “[w]hen I received my review, it was
based off of personal feelings versus being based off of my store performance and the District
Team had a major impact on the review as well.” (Doc. 24-1 at 8; Doc. 24-3 at 70.)

9

Plaintiff also complained about the discipline notice he received on July 24, 2013. (Doc.
24-1 at 8.) Plaintiff asked that the discipline counseling be removed, that his review be rewritten
“without any personal attacks” and that he be allowed to transfer stores, alleging that there was
no growth for him at the North Baton Rouge store. (Doc. 24-1 at 8; Doc. 24-3 at 71.) This was
the first time Plaintiff asked for a transfer from the North Baton Rouge store. (Doc. 24-1 at 8.)
As admitted by Plaintiff, he did not mention anywhere in this email that he felt he was
being mistreated on the basis of his race, age or gender. (Doc. 24-1 at 8.) Plaintiff testified that
he “didn’t feel a need to” mention that he felt he was being mistreated on the basis of his race,
age or gender. (Doc. 24-1 at 8.)
Plaintiff testified that he was contacted by Ms. Campbell and was told Home Depot was
investigating the allegations. (Doc. 24-1 at 8.)
E. Plaintiff’s FMLA Leave and Return from FMLA Leave
1. Plaintiff Returns to Work
Shortly after Plaintiff sent his email on July 31, 2013, he went on FMLA leave. Plaintiff
did not have any issues procuring FMLA leave. (Doc. 24-1 at 9.) Plaintiff submitted his FMLA
leave paperwork and was granted leave. (Doc. 24-1 at 9.) When Plaintiff was ready to return to
work from his FMLA leave, he provided Mr. Gibson with his return-to-work documentation and
was allowed to begin working again immediately. (Doc. 24-1 at 9.)
2. Plaintiff’s Disciplinary Notice
Plaintiff alleges that on the day he returned to work, Mr. Gibson issued him a discipline
notice for the Berda Cage “missed punches investigation.” (Doc. 24-1 at 9.) As outlined above,
the AACG had recommended that Ms. Cage and Plaintiff be counseled, Ms. Cage for not
clocking in before she began her shift and Plaintiff for knowingly allowing her do to so. (Doc.

10

24-1 at 9.) However, Plaintiff went on leave before a counseling could be issued to him. (Doc.
24-1 at 9.)
Plaintiff stated that when Mr. Gibson counseled him regarding the missed punches
investigation, Reginald Wells, the Store Manager at the Denham Springs store, witnessed the
counseling. (Doc. 24-1 at 9.) Plaintiff admitted to telling Mr. Gibson that he was “full of it” (and
possibly “full of shit”) and admitted to walking out of the room during the meeting. (Doc. 24-1 at
9.) Plaintiff went back into the meeting at the urging of Mr. Wells. (Doc. 24-1 at 9.) Plaintiff
refused to sign the discipline notice. (Doc. 24-1 at 9.)
3. Plaintiff’s Second Email to Corporate
Soon after Plaintiff was issued the discipline notice due to the missed punches
investigation, Plaintiff sent another email to the corporate office. (Doc. 24-1 at 10.) Plaintiff
testified that he sent this shortly after he was counseled. (Doc. 24-1 at 10.) Plaintiff sent this
October 16, 2013, email to Mr. Ellison, Mr. Blake and Ms. Campbell, along with Pamela
Holland (African-American female), the Regional Human Resources Director, and Tim
Wilkerson (African-American male), the Regional Vice President. (Doc. 24-1 at 10.)
Plaintiff again complained about Mr. Gibson, alleging that Mr. Gibson “does not care
about anyone or anything but himself.” (Doc. 24-1 at 10; Doc. 24-3 at 74.) Plaintiff called Mr.
Gibson unprofessional, and alleged that he was “being targeted and harassed by my Store
Manager and it is a hostile work environment for me.” (Doc. 24-1 at 10; Doc. 24-3 at 74.)
Plaintiff then asked for a transfer to another store. (Doc. 24-1 at 10; Doc. 24-3 at 75.)
Once again, Plaintiff did not mention anywhere in this email that he felt he was being
mistreated on the basis of his race, age or gender. (Doc. 24-1 at 10; Doc. 24-3 at 74–75.)
Plaintiff testified that there was “no need to” raise those alleged concerns. (Doc. 24-1 at 10.)

11

4. Consequence of the Second Email to Corporate
In response to Plaintiff’s email, Plaintiff was granted a transfer to the Denham Springs,
Louisiana store. (Doc. 24-1 at 10.) In addition, both Ms. Cage’s and Plaintiff’s discipline notices
were rescinded. (Doc. 24-1 at 10.) Home Depot learned that while Ms. Cage was beginning to
work before she clocked in, she was compensated for all time worked as she completed a time
and attendance change form to add the time back for all missed punches. (Doc. 24-1 at 11.)
F. Plaintiff’s Time at the Denham Springs Store
1. Plaintiff’s Time There Generally and His Supervisor
Plaintiff transferred to the Denham Springs store on or around October 28, 2013. (Doc.
24-1 at 11.) The Denham Springs store was a store to which Plaintiff requested a transfer. (Doc.
24-1 at 11 (Q: Did you tell him that the Denham Springs store was a store you would be
interested in transferring to? A: Yes. I told him that or Coursey.).)
Reginald Wells (black male, date of birth 9/18/71) was the Store Manager of the
Denham Springs store at the time. (Doc. 24-1 at 11.) Mr. Wells would walk the store with
Plaintiff when asked and Plaintiff could ask questions of Mr. Wells. (Doc. 24-1 at 11.)
Plaintiffs’ relationship with Mr. Wells was better than his relationship with Mr. Gibson. (Doc.
24-1 at 11.)
2. The Incidents with Sabrina Allen
On December 12, 2013, Home Depot’s Awareness Line received an anonymous
complaint from an employee that Plaintiff had “violated the personal space of the caller. The
caller did not want to mention any further details to retain his/her anonymity; however,
Lawrence made him/her very uncomfortable. Nothing to this extreme has taken place before but

12

he/she feels that Lawrence’s behavior was a bit too casual for the workplace.” (Doc. 24-1 at 11;
Doc 24-4 at 6.) The AACG began to investigate the allegations. (Doc. 24-1 at 11.)
While the AACG investigated the allegations, the Awareness Line received another
phone call from the same employee regarding more inappropriate conduct by Plaintiff. (Doc. 241 at 12.) Specifically, the employee, Sabrina Allen, alleged that on December 19, 2013,
“[Plaintiff] grabbed ALLEN’s ponytail and began playing around with it while ALLEN was
servicing customers at the self-checkout lane. ALLEN felt this was incredibly inappropriate. She
asked that Lawrence stop, but he did not. Eventually, Lawrence stopped after ALLEN continued
to try moving away from him.” (Doc. 24-1 at 12; Doc. 24-4 at 9).
Due to this, the AACG instructed Mr. Wells to have Plaintiff draft a statement. (Doc. 241 at 12.) In that statement, Plaintiff only referenced the December 12, 2013, incident, and stated
“[a]s I was walking in the break room preparing to go to lunch, myself and a few other associates
were in there (including DS (department supervisor), Angie Pierre-Dunaway) and jokingly I
ruffled cashier Sabrina’s hair. It was just a joke and I didn’t mean to be in any way disrespectful.
Everyone including Sabrina was laughing and took it as a joke.” (Doc. 24-1 at 12; Doc 24-3 at
77.) Plaintiff testified that “ruffling” meant rubbing his hands on top of Ms. Allen’s head. (Doc.
24-1 at 12.)
However, as noted above, Plaintiff again touched Ms. Allen inappropriately on December
19, 2013, and this time, the incident was recorded on closed circuit television. (Doc. 24-1 at 12.)
Defendant submitted a recording of that incident as Exhibit C. (Doc. 24-1 at 12.) The video
clearly shows a woman approaching the self-service cash registers with a male following her.
(Doc. 24-5.) The male then pulls hard on the woman’s head, jerking her head. (Doc. 24-5.) The
woman tried to walk away twice from the male, but the male rubbed her hair a few times,

13

pursued her as she was trying to walk away, and continued bothering her. (Doc. 24-5.) Finally,
after handing something back to the female, the male walked away. (Doc. 24-5.) The female then
spent time fixing her hair. (Doc. 24-5.) The entire video lasted about two minutes. (Doc. 24-5.)
Plaintiff admitted that he was the individual captured on the video. (Doc. 24-1 at 12.)
Plaintiff testified that on this occasion, he pulled Plaintiff’s scrunchee out of her hair. (Doc. 24-1
at 13.) Plaintiff has not rebutted the statement of uncontested fact (which appears evident from
the video) that “The recording clearly shows Plaintiff pulling the scrunchee out of Ms. Allen’s
hair.” (Doc. 24-1 at 13.) Nor has the Plaintiff rebutted that “The recording also shows Plaintiff
rubbing his hands back and forth through Ms. Allen’s hair as she tried to back away.” (Doc. 24-1
at 13; Doc. 24-6 at 7–18.) Finally, the recording further captures Plaintiff offering the scrunchee
back to Ms. Allen then pulling it away on several occasions, all while Ms. Allen was assisting a
customer in the self-checkout line. (Doc. 24-5; Doc. 24-6 at 22–29.) Plaintiff admitted that if an
employee such as Ms. Allen complains of inappropriate conduct of a co-employee, that conduct
should be investigated. (Doc. 24-1 at 13.)
3. Plaintiff’s Termination, Statements about His Alleged
Discrimination, and Lack of Replacement.
Ultimately, the AACG reviewed the recording on closed circuit television of the incident
and recommended that Plaintiff’s employment be terminated for violation of Home Depot’s
Acceptable Workplace Conduct and Behavior Policy. (Doc. 24-1 at 13.) Plaintiff was terminated
on December 27, 2013, for violation of Home Depot’s Respect Policy in relation to his conduct
towards Ms. Allen. (Doc. 24-1 at 13.)
Plaintiff admitted that during his entire employment at Home Depot, no employees of
Home Depot ever mentioned anything about his race, his gender or his age. (Doc. 24-1 at 13;
Doc 24-3 at 18–19.) In fact, when asked in his deposition “did you think that [Mr. Gibson’s]
14

issues with you were just personal,” Plaintiff responded “I think it was personal.” (Doc. 24-1 at
13; Doc. 24-3 at 20.) Regarding Mr. Gibson, Plaintiff testified “I don’t think his issues with me
were dealing with race. No.” (Doc. 24-1 at 14; Doc. 24-3 at 20.) Plaintiff also testified at one
point that he did not feel he was discriminated against because of his gender.” (Doc. 23-1 at 14;
Doc. 23-3 at 11 (Q: What about gender? Do you feel like you were discriminated against because
you were a male? A: I wouldn’t say that.).)
Plaintiff also testified “Like I say, I was respected a lot as an ASM at Home Depot
through the whole district. Everyone knew the type of work that I carried out. I think that was
intimidating having a younger male. I was younger than him and knew more than he knew.”
(Doc. 24-1 at 14; Doc. 24-3 at 21.)
Plaintiff testified that he believed that Mr. Gibson felt threatened by him because of his
abilities and the respect he alleges he had throughout the district. (Doc. 24-3 at 21.) When asked,
“So not necessarily related to your gender or age. Right?”, Plaintiff replied, “Me being a younger
black male. Yes.” (Doc. 24-3 at 21.)
Plaintiff was not replaced after his termination. (Doc. 24-3 at 14.) At the time of
Plaintiff’s termination, the Denham Spring store was technically over head count on Assistant
Store Managers, meaning the Denham Springs store had more Assistant Store Managers than a
store of its size would usually have. (Doc. 24-3 at 14.) Therefore, Plaintiff’s duties were
assumed by the two other Merchandising Assistant Store Managers in the Denham Springs store,
Jermaine Antoine (African-American male, date of birth 2/3/77) and Carl Denmark (Caucasian
male, date of birth 5/9/71). (Doc. 24-3 at 14.) No additional Assistant Store Managers were
hired, promoted or transferred from another store to replace Plaintiff. (Doc. 24-3 at 14.)

15

G. Plaintiff’s Retaliation Allegations
Plaintiff testified that he believes he was retaliated against for drafting the two emails to
the corporate office, one in July 2013 and one in October 2013. (Doc. 24-3 at 15; Doc. 24-3 at
62.) Plaintiff’s testified that he does not believe he was retaliated against for any other reason.
(Doc. 24-3 at 15; Doc 24-3 at 62.)
Specifically, when asked if he believed he was retaliated against for taking FMLA leave,
Plaintiff responded “I don’t believe I was being retaliated because I took leave.” (Doc. 24-3 at
15.) 5 As outlined above, neither of Plaintiff’s emails to corporate alleged that he was being
harassed or mistreated because of his race, sex or age (he was 39 when the emails were sent).
(See Doc. 24-3 at 70–75.)
II.

Summary Judgment Standard

“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.” Fed. R.
Civ. P. 56(a). If the mover bears his burden of showing that there is no genuine issue of fact, “its
opponent must do more than simply show that there is some metaphysical doubt as to the
material facts . . . [T]he nonmoving party must come forward with ‘specific facts showing that
there is a genuine issue for trial.’” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (internal citations omitted). The
non-mover’s burden is not satisfied by “conclusory allegations, by unsubstantiated assertions, or
by only a ‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)

5
Plaintiff did not timely contest this fact, so it is deemed admitted. Nevertheless, the Court notes that Defendant
cited to this as being on page 189 of the deposition, but the quote is actually on the following page 190 in the same
line of questioning, which was included in Plaintiff’s submissions. (See Doc. 56-3 at 3.) The Court will overlooked
the Defendant’s slight typo, as it is considerably different than Plaintiff’s complete failure to cite to any part of the
Plaintiff’s deposition that remains in evidence.

16

(citations and internal quotations omitted). “Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co., 475 U.S. at 587. Further:
In resolving the motion, the court may not undertake to evaluate the credibility of
the witnesses, weigh the evidence, or resolve factual disputes; so long as the
evidence in the record is such that a reasonable jury drawing all inferences in
favor of the nonmoving party could arrive at a verdict in that party’s favor, the
court must deny the motion.
International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
III.

Plaintiff’s Discrimination Claims
A. Standards under Title VII, § 1981, and ADEA
Title VII provides in relevant part that “[i]t shall be an unlawful employment practice for

an employer . . . to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “The
summary judgment test for discrimination claims under § 1981 is the same as the test for
discrimination claims under Title VII.” Riley v. Sch. Bd. Union Par., 379 F. App'x 335, 339 (5th
Cir. 2010) (citing Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 316 (5th Cir.2004)).
Where the plaintiff “does not allege any direct evidence of discrimination, [courts] apply the
familiar McDonnell Douglas burden-shifting analysis.” Id. (citing Davis, 383 F.3d at 316).
“To survive summary judgment under McDonnell Douglas, the plaintiff must first
present evidence of a prima facie case of discrimination.” Id. (citing Davis, 383 F.3d at 317). “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.” Id. (citing Davis, 383 F.3d at 317). “If the employer is

17

able to state a legitimate rationale for its employment action, the inference of discrimination
disappears and the plaintiff must present evidence that the employer's proffered reason was mere
pretext for racial discrimination.” Id. (quoting Davis, 383 F.3d at 317).
A plaintiff “may establish pretext by showing that a discriminatory motive more likely
motivated [the employer’s] decision or that [the employer’s] proffered justification is unworthy
of credence.” Burton v. Texas Dep't of Criminal Justice, 584 F. App'x 256, 257 (5th Cir. 2014)
(citations omitted). “To raise an inference of discrimination, the plaintiff may compare his
treatment to that of nearly identical, similarly situated individuals.” Riley, 379 F. App’x at 339
(citing Bryant v. Compass Group USA Inc., 414 F.3d 471, 478 (5th Cir. 2005)). “To establish
disparate treatment, however, a plaintiff must show that the employer ‘gave preferential
treatment to another employee under ‘nearly identical’ circumstances.” Id. (citing Bryant, 414
F.3d at 478). “Alternatively, ‘[a]n explanation is false or unworthy of credence if it is not the
real reason for the adverse employment action.’ ” Id. (quoting Laxton v. Gap, Inc., 333 F.3d 572,
578 (5th Cir. 2003)). “However, a plaintiff cannot prove that an employer's proffered reason is
pretextual merely by disputing the correctness of the employer's decision.” Burton, 584 F. App’x
at 257 (citation omitted). “[I]n conducting a pretext analysis, we do not engage in secondguessing of an employer's business decisions. Title VII does not require employers to make
correct decisions, only nondiscriminatory decisions.” Burton, 584 F. App’x at 258.
The ADEA “prohibit[s] employers from discharging or otherwise discriminating against
any individual because of his or her age.” Palacios v. City of Crystal City, Tex., 634 F. Appx.
399, 401 (5th Cir. 2015) (citations and quotations omitted). “Under the ADEA, it is unlawful for
an employer ‘to discharge any individual or otherwise discriminate against any individual . . .
because of such individual's age.’ ” Id. (quoting 20 U.S.C. § 623(a)(1)). Like Title VII, the

18

ADEA also employs the McDonnell Douglas standard when, as here, circumstantial evidence is
used, but the plaintiff’s ultimate burden is different. Id. at 402. Unlike Title VII, where the
question is whether the protected status is a “motivating factor” in the challenged decision, see,
supra, “[t]o establish a claim under the ADEA, ‘[a] plaintiff must prove by a preponderance of
the evidence . . . that age was the ‘but-for’ cause of the challenged employer decision.' ” Id. at
401 (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78, 129 S. Ct. 2343, 174 L. Ed
.2d 119 (2009)).
B. Analysis
The Court finds that Plaintiff has failed to sustain his burden of showing a genuine issue
of material fact as to whether there was discrimination on the basis of race, gender, or age. In
sum, the Plaintiff has failed to satisfy his prima facie burden with respect to the write ups, and he
has not demonstrated pretext for the wrongful termination claim.
1. The Write-Ups
With respect to the write-ups, the Court agrees with the Defendant that the Plaintiff has
not established a prima facie case. One of the requirements for the prima facie case is that the
plaintiff suffered an “adverse employment action.” See St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 507, 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993). “Under Title VII, an adverse
employment action must be an ‘ultimate employment decision,’ such as ‘hiring, granting leave,
discharging, promoting, or compensating.’ ” Simmons-Myers v. Caesars Entm't Corp., 515 F.
App'x 269, 275 (5th Cir. 2013) (quoting McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th
Cir.2007)). “Title VII does not cover ‘every decision made by employers that arguably might
have some tangential effect upon those ultimate decisions.’ ” Id. (quoting Banks v. E. Baton
Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir.2003)). Thus, in Simmons-Myers, the Fifth

19

Circuit found that, even if the issue had been properly raised on appeal, written warnings given
to the employee did “not constitute materially adverse actions under this standard[.]” Id.
Though dicta and not binding, the Court finds Simmons-Myers highly persuasive here.
Under the facts of the present case, the few warnings Plaintiff received—none of which
adversely affected compensation or resulted in discharge, and the worst of which was rescinded
before Plaintiff experienced any adverse consequences—do not constitute “ultimate employment
decisions” as contemplated by Title VII and the ADEA. As a result, to the extent Plaintiff made
a claim for discrimination based on the written warnings, it is dismissed with prejudice. See also
Preston v. Texas Dep't of Family & Protective Servs., 222 F. App'x 353, 358 (5th Cir. 2007)
(“Written admonishments do not rise to the level of ultimate employment actions.”); Roberson v.
Game Stop/Babbage’s, 152 F. App’x 356 (5th Cir. 2005) (noting the Fifth Circuit’s “warning . . .
not to expand the definition of adverse employment action to include events such as disciplinary
filings, supervisor's reprimands, and even poor performance by the employee-anything that
might jeopardize employment in the future.” (citations omitted)); Luckman v. United Parcel
Serv., 44 F. App'x 651 (5th Cir. 2002) (per curiam) (holding that Plaintiff’s “written warnings”
did not constitute “adverse employment actions”).
In his opposition, Plaintiff attempts to satisfy his burden of proving an adverse
employment action in a few ways, but each of these fails for the same reason: a lack of evidence.
First, Plaintiff claims that Gibson’s “evaluations delayed [Plaintiff’s] ability to promote [sic] to
the position of store manager for at least one year” when he “was expected [to] rise through the
ranks and had been placed on the fast track to promotions in upper management and been named
a Top Performer.” (Doc. 51-2 at 1, 5, 7, & 13.) But there is simply no admissible summary
judgment evidence to support these contentions.

20

Second, Plaintiff asserts that these disciplinary actions resulted in a transfer to another
store where his position was “superfluous” (Doc. 51-2 at 3, 5, & 14.) “[T]o be equivalent to a
demotion, a transfer need not result in a decrease in pay, title, or grade; it can be a demotion if
the new position proves objectively worse—such as being less prestigious or less interesting or
providing less room for advancement.” Alvarado v. Texas Rangers, 492 F.3d 605, 613 (5th Cir.
2007) (citations omitted). However, Plaintiff fails to demonstrate that here. Though he
complains in his opposition that his position at the Denham Springs store provided less room for
advancement, Plaintiff again has provided no admissible evidence to show that this position was
“objectively worse” than his previous position. Without more, Plaintiff has not demonstrated an
adverse employment action.6
In sum, the write-ups are not adverse employment actions. As a result, to the extent
Plaintiff makes a discrimination claim related to them, summary judgment is granted, and these
claims are dismissed.
2. Plaintiff’s Termination
The heart of this case lies in the Plaintiff’s claim for unlawful termination. Though
Defendant attacks one part of the prima facie case, the Court finds that, even assuming that
Plaintiff had met this burden, Plaintiff fails to rebut Defendant’s legitimate, nondiscriminatory
reasons for his termination or offer sufficient evidence supporting a claim of discrimination
under Title VII or the ADEA. See McDaniel v. Temple Independent School Dist., 770 F.2d 1340,
1346 n. 2 (5th Cir. 1985) (“[w]here the defendant has done everything that would be required of
him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is
no longer relevant.” (citation omitted)).

6

The Court notes in passing that the uncontested facts demonstrate that Plaintiff requested the transfer generally and
to the Denham Springs store specifically. (Doc. 24-1 at 8, 10, & 11; Doc. 24-3 at 75.)

21

Here, the Defendant has identified a legitimate, non-discriminatory reason for Plaintiff’s
termination: Plaintiff’s conduct toward Ms. Allen. “[I]nappropriate behavior can constitute
legitimate, non-retaliatory reasons for a termination.” Matthews v. City of Hous. Fire Dep't, 609
F. Supp. 2d 631, 646 (S.D. Tex. 2009) (citing Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d
802, 808 (5th Cir. 2007); Turner v. Claims Admin. Corp., 993 F. Supp. 982, 987 (W.D. Tex.
1998) (finding that “inappropriate language and conduct” and “offensive behavior,” which
included dropping his pants to tuck in his shirt and making a co-worker “uncomfortable by
getting ‘too close,’ ” constituted a legitimate, non-discriminatory reason for termination).
Another legitimate, non-discriminatory reason for termination can be an employee’s violation of
company policy. See Ng-A-Mann v. Sears, Roebuck & Co., 627 F. App'x 339, 341 (5th Cir.
2015). Defendant has thus sustained its burden of production for this part of the McDonnell
Douglas analysis.
Consequently, Plaintiff had the burden of proving pretext. Again, for the race and gender
claims under Title VII, Plaintiff had to prove “that a discriminatory motive more likely
motivated [the employer’s] decision or that [the employer’s] proffered justification is unworthy
of credence.” Burton, 584 F. App'x at 257. The Plaintiff has done neither.
First, Home Depot’s explanation is not “unworthy of credence.” The unrebutted
evidence shows that Defendant received two complaints about Defendant engaging in
inappropriate behavior. In the first, an anonymous employee said that Defendant “violated [her]
personal space” and that he made her feel “very uncomfortable” because Plaintiff was “a bit too
casual for the workplace.” (Doc. 24-1 at 11; Doc. 24-4 at 6.) In the second, Allen identified
herself and complained that Plaintiff “grabbled [her] ponytail and began playing around with it
while [she] was servicing customers at the self-checkout lane.” (Doc. 24-1 at 12; Doc. 24-4 at 9).

22

“ALLEN felt this was incredibly appropriate. She asked that [Plaintiff] stop, but he did not.
Eventually Lawrence stopped after ALLEN continued to try moving away from him.” (Doc. 241 at 12; Doc. 24-4 at 9).
The uncontroverted evidence also shows that Defendant did not merely accept these
complaints as true or deny Defendant a chance to defend himself. Defendant gave Plaintiff an
opportunity to draft a statement. (Doc. 24-1 at 12.) Plaintiff did not address the second incident.
(Doc. 24-1 at 12; Doc. 24-3 at 77.) With respect to the first, although Plaintiff denied malicious
intent, he admitted that he “ruffled cashier Sabrina’s hair.” (Doc. 24-1 at 12; Doc. 24-3 at 77.)
Perhaps most importantly, the Court reviewed the video recording of the incident. (Doc.
24-1 at 13.) The video was described in detail above, and that need not be repeated here. In
short, it confirms Allen’s entire account of the incident. Allen acted extremely inappropriately.
Considering the two complaints and video evidence, no reasonable jury would conclude that
Home Depot’s reason for termination was not worthy of credence or that Defendant did anything
other than act in good faith in investigating and responding to Allen’s complaint. Phrased
another way, there is no genuine issue of material fact that Home Depot’s justification for
termination was not the “real reason” for the action or that discrimination was.
Second, Plaintiff has not established that race or sex was a motivating factor in Home
Depot’s decision. Plaintiff has produced absolutely no evidence indicating that anyone involved
in the Sabrina Allen incident in any way considered the Plaintiff’s sex or race in reaching its
decision. Further, Plaintiff admitted that during his entire employment at Home Depot, no
employees of Home Depot ever mentioned anything about his race, his gender or his age. (Doc.
24-1 at 13; Doc 24-3 at 18–19.) Lastly, there has been no showing by the Plaintiff that
Defendant “gave preferential treatment to another employee under ‘nearly identical’

23

circumstances.” Riley, 379 F. App’x at 339. Indeed, there is no evidence that anyone at Home
Depot did anything comparable to what Plaintiff did to Allen yet was not terminated—that is,
that an employee was not fired after being caught on video acting extremely inappropriately to
another employee and after the victim claimed “physical[] harass[ment]” and stated that she was
“considering speaking with a lawyer should the company not take effective action immediately.”
(Doc. 24-4 at 9.) Consequently, summary judgment on Plaintiff’s discrimination claims under
Title VII is warranted.
The same reasoning warrants dismissal of Plaintiff’s discrimination claim under the
ADEA. As stated above, for the ADEA, Plaintiff has to prove that “age was the ‘but-for’ cause
of the challenged employer decision.' ” Palacios, 634 F. Appx at 401 (quoting Gross, 557 U.S. at
177–78, 129 S. Ct. 2343). He has not done so. Again, the Plaintiff has not proven that the
Defendant’s explanation for termination was unworthy of credence. Moreover, Plaintiff
admitted that during his entire time with the Defendant, none of the other employees ever
mentioned anything about age (Doc. 24-1 at 13; Doc 24-3 at 18–19), and there’s no evidence of
disparate treatment. In short, Plaintiff has identified no evidence in the record indicating that age
was the “but-for” cause of termination.
The only remotely relevant arguments Plaintiff makes in his lengthy opposition are as
follows:
(1) that Home Depot violated its own policies by firing him for a “minor violation” that
“at most” would “subject [Plaintiff] to counselling and not termination” (Doc. 51-2 at
3, 6, 20);
(2) that Defendant accepted the “vague and unsubstantiated allegations” of “a young
white female in her earlier twenties” over his (Doc. 51-2 at 1, 15);
(3) that Gibson was attacking Plaintiff “for seemingly purely personal reasons” (Doc. 512 at 7); and

24

(4) that Plaintiff was just engaged in “innocuous and perhaps silly horseplay,” “lighthearted teasing,” and “light-hearted joking around” with Allen; that he just “ruffled
[her] hair just as he would an impudent child’s;” that “[h]e did not flirt with her, or
proposition her;” and that the AACG took Allen’s complaint and “progressively
rewrote the allegations as being sexual harassment against Sabrina Allen and other
female associates.” (Doc. 51-2 at 6, 14, 19, 20).
The Court rejects each of these arguments as being unsupported by the record.
Concerning the first, Plaintiff submits no admissible evidence that would lead to the conclusion
that that Defendant violated its own policies in terminating the Plaintiff for the Sabrina Allen
incident. To the contrary, the only evidence in the record shows that this action was consistent
with such policies (and was in fact entirely reasonable). (Doc. 24-4 at 3; Doc. 24-5.)
Equally important, “ ‘[a] defendant's failure to follow its own policy is not probative of
discriminatory animus in absence of proof that the plaintiff was treated differently than other
non-minority employees because Title VII does not protect employees from the arbitrary
employment practices of their employer, only their discriminatory impact.’ ” Turner, 476 F.3d at
346 (quoting Upshaw v. Dallas Heart Group, 961 F. Supp. 997, 1002 (N.D.Tex.1997))
(“[Employee] has introduced no evidence suggesting that [the employer] adhered to its
disciplinary policies differently in cases involving non-minority employees. Therefore,
[employer’s] alleged failure to follow its policy does not serve to establish pretext.”); Palacios,
634 F. App'x at 404 (citing Turner) (applying rule in ADEA cases). As explained above, there is
no evidence that Plaintiff was treated differently from similarly situated employees with respect
to his termination or with respect to Home Depot’s policies. Consequently, Plaintiff’s first
argument fails.
So does his second. As demonstrated above, the uncontested facts show that the
Defendant did not merely accept Allen’s word; Home Depot conducted a good-faith

25

investigation into the matter and reviewed the video, which in fact confirms Allen’s account.
Again, Plaintiff’s argument has no support in the record.
Third, even accepting as true Plaintiff’s contentions about Gibson having a personal
vendetta against him, this does not warrant denial of summary judgment. Preliminarily, there is
nothing in the record indicating that Gibson had anything to do with Plaintiff’s termination. But
putting that aside, there is simply no racial, gender, or age component to Gibson’s alleged
hostility. Plaintiff stated numerous times (at his deposition, in his emails to corporate, and in his
opposition) that he believed Gibson had a personal vendetta against Plaintiff. But:


Regarding Mr. Gibson, Plaintiff testified “I don’t think his issues with me were
dealing with race. No.” (Doc. 24-1 at 14; Doc. 24-3 at 20.)



Plaintiff also testified at one point that he did not feel he was discriminated against
because of his gender.” (Doc. 23-1 at 14; Doc. 23-3 at 11 (Q: What about gender? Do
you feel like you were discriminated against because you were a male? A: I wouldn’t
say that.).)



Lastly, Plaintiff testified “Like I say, I was respected a lot as an ASM at Home Depot
through the whole district. Everyone knew the type of work that I carried out. I think
that was intimidating having a younger male. I was younger than him and knew more
than he knew.” (Doc. 24-1 at 14; Doc. 24-3 at 21.)

Without more, the Court cannot find that the decision to terminate Plaintiff was motivated by
race or gender or that age was the but-for cause of his termination.
And fourth, the Court rejects the Plaintiff’s attempt to downplay—and potentially victimblame—what he did to Allen. The video speaks for itself. No reasonable juror could conclude
that Plaintiff did anything other than act extremely inappropriately to Allen. There is no genuine
issue of fact on this issue.
In sum, Plaintiff has failed to demonstrate either that Defendant’s explanation is
unworthy of credence, that race or gender was a motivating factor in its decision, or that age was
the but-for cause of his termination. Given the facts in the record, all reasonable jurors would
26

conclude that Plaintiff was fired for his inappropriate conduct toward Sabrina Allen, not because
of age or out of a motivation of racial or sexual discrimination. As a result, Plaintiffs’ claims for
discrimination under Title VII and the ADEA are dismissed with prejudice.
IV.

Plaintiff’s Retaliation Claims
A. Title VII and ADEA
Retaliation claims under Title VII are also analyzed under the McDonnell Douglas

standard. See Davis v. Dallas Indep. Sch. Dist., 448 F. App'x 485, 492 (5th Cir. 2011). “A
plaintiff may establish a prima facie case of retaliation by demonstrating that: ‘(1) she
participated in a Title VII protected activity, (2) she suffered an adverse employment action by
her employer, and (3) there is a causal connection between the protected activity and the adverse
action.” Id. (quoting Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 331 (5th Cir.2009)).
“Summary judgment is appropriate if the plaintiff cannot support all three elements.” Id.
(quoting Stewart, 586 F.3d at 331.)
Here, Defendant contests the first and third part of Plaintiff’s prima facie burden.
Concerning the first, “[a]n employee has engaged in activity protected by Title VII if she has
either (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.” Id. (quoting Dixon v. Moore Wallace, Inc., 236 F. App’x 936, 937
(5th Cir.2007); 42 U.S.C. § 2000e–3(a)). As the Fifth Circuit has explained:
We have consistently held that a vague complaint, without any reference to an
unlawful employment practice under Title VII, does not constitute protected
activity. See, e.g., Tratree v. BP N. Am. Pipelines, Inc., 277 Fed. Appx. 390, 395
(5th Cir. 2008) (“Complaining about unfair treatment without specifying why the
treatment is unfair . . . is not protected activity.”); Harris–Childs v. Medco Health
Solutions, Inc., 169 Fed. Appx. 913, 916 (5th Cir. 2006) (affirming summary
judgment on retaliation claim where plaintiff never “specifically complained of
racial or sexual harassment, only harassment”); Moore v. United Parcel Serv.,
27

Inc., 150 Fed. Appx. 315, 319 (5th Cir. 2005) (“Moore . . . was not engaged in a
protected activity, as his grievance did not oppose or protest racial discrimination
or any other unlawful employment practice under Title VII.”); see also Evans v.
Tex. Dep't of Transp., 547 F. Supp. 2d 626, 654 (E.D. Tex. 2007) (“Plaintiff has
not shown that she engaged in a statutorily protected activity. Specifically,
although Evans complained of a purportedly hostile work environment, at no time
did she suggest that [the conduct at issue] was related to Evan's race, sex, . . . or
other characteristic protected by Title VII.”).
Davis, 448 F. App’x at 493. Thus, in Davis, when the Plaintiff stated in a meeting that a
supervisor “created a ‘hostile work environment,” the Fifth Circuit found that that did “not itself
constitute ‘protected activity’ within the meaning of Title VII, as this complaint lacked a racial or
gender basis.” Id. (citing 42 U.S.C. § 2000e-3(a)).
Here, the Plaintiff has asserted that he was retaliated against for drafting the two emails to
the corporate office in July 2013 and in October 2013. (Doc. 24-3 at 15; Doc. 24-3 at 62.)
Plaintiff’s stated that he did not believe he was retaliated against for any other reason. (Doc. 24-3
at 15; Doc 24-3 at 62.)
The Court has carefully reviewed these letters (Doc. 24-3 at 70–71, 73–75) and finds that
no reasonable juror could conclude that Plaintiff engaged in any protected activity in either letter.
As a result, summary judgment on Plaintiff’s retaliation claims under Title VII and the ADEA is
warranted.
Again, in the first letter, Plaintiff stated that the “store manager and District Team have
personal vendettas against me and it clearly shows;” that after the “Front Apron” incident,
“everything became personal;” and that, “[w]hen [he] received [his] review, it was based off of
personal feelings versus being based off of [his] store performance.” (Doc. 24-3 at 70.) Plaintiff
concluded:
So, after all this I am just asking that this documentation to be taken out of my file
and my review to be rewritten without any personal attacks and to be more

28

professional. I am also requesting a transfer, because I have been at this store for
over two years and there is no growth for me.
(Doc. 24-3 at 71.)
Similarly, the second email refers only to a personal vendetta without any reference to
race or gender. This email states: “So, at this point of my career, I am working with a store
manager who does not care about anyone or anything but himself.” (Doc. 24-3 at 74.) Plaintiff
also said: “At my current location, I truly feel that I am being targeted and harassed by my Store
Manager and it is making it a hostile work environment for me.” (Doc. 24-3 at 74.) He
concluded with another request for a relocation to another store. (Doc. 24-3 at 75.)
Considering these emails, summary judgment is warranted on the Title VII retaliation
claims. There is no question of fact on this issue, as the evidence is uncontroverted. To satisfy
his burden, Plaintiff had to engage in protected activity under Title VII, and no reasonable juror
could conclude from these emails that he did. Just as in Davis, Plaintiff’s general reference to a
“hostile work environment” or to being “harassed” does not suffice. As a result, summary
judgment on the Title VII retaliation claim is granted, and it is dismissed with prejudice.
The same reasoning and analysis applies to Plaintiff’s ADEA retaliation claim. See
Everett v. Cent. Mississippi, Inc. Head Start Program, 444 F. App'x 38, 44 (5th Cir. 2011)
(citing Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.1992)) (“the prima facie elements
of retaliation in an ADEA case are the same as those under Title VII”). Age is not mentioned in
Plaintiff’s emails. Again, under Davis, the general reference to being “harassed” or to a “hostile
work environment” does not satisfy the Plaintiff’s burden. No reasonable juror could review the
Plaintiff’s two letters and conclude that he engaged in protected activity in connection with the

29

ADEA. As a result, summary judgment on the Plaintiff’s ADEA retaliation claim is granted, and
it is dismissed with prejudice.7
B. FMLA
“The FMLA requires a covered employer to allow an eligible employee up to twelve
weeks of unpaid leave a year if the employee suffers from a serious health condition that makes
the employee unable to perform the functions of her job.” Smith v. Touro Infirmary, 642 F.
App'x 338, 340 (5th Cir. 2016) (citing 29 C.F.R. § 825.200(b) (2013)). “The FMLA also
prohibits penalizing an employee for exercising her FMLA rights.” Id. (citing 29 C.F.R. §
825.220 (2013)).
The McDonnell Douglas standard applies to FMLA retaliation claims. See Castay v.
Ochsner Clinic Found., 604 F. App'x 355, 356 (5th Cir. 2015). To establish a prima facie case
of retaliation under the FMLA, the Plaintiff must show: “(1) she was protected under the FMLA,
(2) she suffered an adverse employment action, and (3) she either was treated less favorably than
a similarly situated employee who had not requested leave or the adverse decision was made
because she took FMLA leave.” Smith, 642 F. App’x at 340. (citing Hunt v. Rapides Healthcare
System, LLC, 277 F.3d 757, 768 (5th Cir. 2001)). “The burden then shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the adverse employment action.” Castay,
604 F. App'x at 356 (citing Ion v. Chevron USA, Inc., 731 F.3d 379, 390 (5th Cir. 2013)). The
burden then shifts back to the employee, though the Fifth Circuit has not yet decided whether the
“mixed motive” standard applies or the “but-for” standard. See Castay, 604 F. App'x at 356 &
356 n. 2 (citing Ion, 731 F.3d at 390) (applying mixed motive analysis but noting the unresolved
issue in the Fifth Circuit).

7

Because of the Court’s finding, the Court need not reach the other issues related to the Plaintiff’s Title VII and
ADEA retaliation claim.

30

The Court finds that, without question, summary judgment is warranted. At his
deposition, Plaintiff testified that the two emails to corporate in June and October 2013 were the
only reasons he was retaliated against. (Doc. 24-3 at 15; Doc. 24-3 at 62.) Plaintiff was
specifically asked if Defendant retaliated against him for taking FMLA leave, and Plaintiff
replied, “I don’t believe I was being retaliated because I took leave.” (Doc. 24-3 at 15; Doc. 56-3
at 3.)
Thus, Plaintiff’s claim clearly fails. Plaintiff has not satisfied his prima facie burden of
proving that “[]he was either treated less favorably than a similarly situated employee who had
not requested leave or the adverse decision was made because []he took FMLA leave.” Castay,
604 F. App’x at 356. There is no evidence in the record demonstrating either. In fact, Plaintiff’s
own admissions show no FMLA retaliation whatsoever. On this basis alone, Plaintiff’s FMLA
retaliation claim fails and is dismissed with prejudice.
Even if Plaintiff had proven a prima facie case (which he hasn’t), Defendant has brought
forward a legitimate, non-discriminatory reason for any remotely conceivable adverse
employment actions taking place after Plaintiff returned from leave. For the disciplinary notice,
the Defendant has shown that Plaintiff committed a workplace violation with Berda Cage and
that Defendant meant to give this notice to him before he took leave. (Doc. 24-1 at 6–7.)
Plaintiff’s transfer to a different store was, as noted above, requested by Plaintiff (and, in any
event, it was, as explained above, not an adverse employment action). (Doc. 24-1 at 8, 10, & 11;
Doc. 24-3 at 75.) And Plaintiff’s termination was a direct consequence of the Sabrina Allen
incident, detailed extensively above.
Thus, the burden shifted back to the Plaintiff, and he has not met it. Plaintiff has not
shown that his medical leave, or discrimination related to it, was the “but-for” cause of any

31

alleged adverse employment actions or that it was even a motivating factor in any such action.
For this additional reason, Defendant’s motion for summary judgment on Plaintiff’s FMLA
retaliation claim is granted, and it is dismissed with prejudice.
V.

Plaintiff’s State Law Claims
A. Intentional Infliction of Emotional Distress
In White v. Monsanto Co., 585 So. 2d 1205 (La. 1991), the Louisiana Supreme Court laid

out the standard for intentional infliction of emotional distress as follows:
[I]n order to recover for intentional infliction of emotional distress, a plaintiff
must establish (1) that the conduct of the defendant was extreme and outrageous;
(2) that the emotional distress suffered by the plaintiff was severe; and (3) that the
defendant desired to inflict severe emotional distress or knew that severe
emotional distress would be certain or substantially certain to result from his
conduct.
Id. at 1209. The Louisiana Supreme Court continued by describing the type of conduct falling
under this tort:
The conduct must be so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as atrocious and
utterly intolerable in a civilized community. Liability does not extend to mere
insults, indignities, threats, annoyances, petty oppressions, or other trivialities.
Persons must necessarily be expected to be hardened to a certain amount of rough
language, and to occasional acts that are definitely inconsiderate and unkind. Not
every verbal encounter may be converted into a tort; on the contrary, “some safety
valve must be left through which irascible tempers may blow off relatively
harmless steam.”
Id. (citations omitted). While “[a] plaintiff’s status as an employee may entitle him to a greater
degree of protection from insults and outrage by a supervisor with authority over him than if he
were a mere stranger,” the Louisiana Supreme Court also cautioned:
On the other hand, conduct which may otherwise be extreme and outrageous, may
be privileged under the circumstances. Liability does not attach where the actor
has done no more than to insist upon his legal rights in a permissible way, even
though he is aware that such insistence is certain to cause emotional stress. Thus,
32

disciplinary action and conflict in a pressure-packed workplace environment,
although calculated to cause some degree of mental anguish, is not ordinarily
actionable. Recognition of a cause of action for intentional infliction of emotional
distress in a workplace environment has usually been limited to cases involving a
pattern of deliberate, repeated harassment over a period of time.
Id. at 1210 (citations omitted). The court also stated: “The distress suffered must be such that no
reasonable person could be expected to endure it. Liability arises only where the mental suffering
or anguish is extreme.” Id.
The Court has reviewed the facts in the record and concludes that Plaintiff has failed to
demonstrate a genuine issue of fact on the issue of intentional infliction of emotional distress.
Even accepting Plaintiff’s complaints about his workplace are true, the Court finds that no
reasonable juror could find that any of Defendant’s employees’ conduct was “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized community.” Plaintiff has described
the kind of “mere insults, indignities, . . . annoyances, petty oppressions, or other trivialities” that
the Louisiana Supreme Court has rejected as a basis for an intentional infliction of emotional
distress claim. Even Gibson’s conduct does not constitute the sort of “pattern of deliberate,
repeated harassment over a period of time” that is actionable. No reasonable juror could
conclude that Plaintiff satisfied his burden on this issue, and, as a result, this claim is dismissed
with prejudice.
B. Negligence.
Plaintiff also brings claims under La. Civ. Code arts. 2315 and 2320. (Doc. 1 at 10.)
Plaintiff alleges that “defendant’s negligence resulted in the aforementioned injuries and
deprivations pleaded” and that it is “liable to [Plaintiff] pursuant to LA. CIV. CODE art. 2320,
for the failure of the employer to prevent the injury he has suffered, and that the employer was

33

able to prevent said injury had the employer exercised due diligence.” (Doc. 1 at 10.) “[Plaintiff]
pleads that the defendant’s negligence and/or intentional acts and omissions resulted in the
aforementioned injuries and deprivations pleaded[.]” (Doc. 1 at 10.)
As the Louisiana Supreme Court explained in White, La. Rev. Stat. § 23:1032 “makes
worker's compensation an employee's exclusive remedy for a work-related injury caused by a coemployee, except for a suit based on an intentional act. The words ‘intentional act’ mean the
same as ‘intentional tort.’ ” White, 585 So. 2d at 1208. These negligence claims clearly fall
short. Consequently, summary judgment on Plaintiff’s claims for negligence under La. Civ.
Code arts. 2315 and 2320 is granted, and these claims are hereby dismissed with prejudice.
VI.

Plaintiff’s Fourteenth Amendment Claims
Plaintiff also asserts, in connection with his § 1981 claim, a claim for the violation of “the

Fourteenth Amendment, guaranteeing equal treatment under the laws applicable to individuals as
to the rights preserved and safeguarded therein.” (Doc. 1 at 9.)
Because Home Depot is a private party, “the proof must show significant state
involvement in order to bring an otherwise private concern within the ambit of the Fourteenth
Amendment.” Fulton v. Hecht, 545 F.2d 540, 541 (5th Cir. 1977) (citations omitted). “The
protective armor of the Fourteenth Amendment invoked under s 1983 is activated to prevent
deprivation of rights secured by the Constitution and laws only when state action or action taken
under color of state law is present.” Id. at 541–42. As the Fifth Circuit has explained more
broadly:
In essence, for a nominally private individual's conduct to meet the state action
requirement, there must be a sufficiently close connection between the state and
the challenged conduct for the actor to be treated as an agent of the state, or the
conduct to be attributed to the state. This essentially factual determination is made
by sifting facts and weighing circumstances case by case to determine if there is a

34

sufficient nexus between the state and the particular aspect of the private
individual's conduct which is complained of.
Roberts v. Louisiana Downs, Inc., 742 F.2d 221, 223–24 (5th Cir. 1984) (citations and quotations
omitted); see also Junior Chamber of Commerce of Kansas City, Mo. v. Missouri State Junior
Chamber of Commerce, 508 F.2d 1031, 1033 (8th Cir. 1975) (“We fail to see that there is present
the essential state action . . .. The Constitution applies (only) if the private action complained of
is in essence the action of the government.”); Wright v. Pepsi Cola Co., 243 F. Supp. 2d 117, 121
(D. Del. 2003) (“the Court concludes that PBG's status as a private entity bars Plaintiff's Equal
Protection claim.”)
No exquisite analysis is needed here. Plaintiff has brought forward absolutely no
evidence connecting any of Defendant’s conduct to any state action. As a result, summary
judgment on Plaintiff’s Fourteenth Amendment claim is granted, and this claim is dismissed with
prejudice.
VII.

Conclusion

Accordingly,
IT IS ORDERED that the Home Depot’s Motion for Summary Judgment (Doc. 24) filed
by Defendant The Home Depot U.S.A., Inc. is GRANTED, and all of Plaintiff’s claims are
hereby DISMISSED WITH PREJUDICE.
Signed in Baton Rouge, Louisiana, on March 22, 2017.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

35