Clark v. Railcrew Express, L.L.C. et al

Filing 49

RULING: The 24 Motion for Summary Judgment filed by Defendants is GRANTED. Plaintiff's case is dismissed with prejudice. The Pretrial Conference set for 10/30/2018, and the Jury Trial set to begin on 11/13/2018 are hereby CANCELED. Judgment shall be entered accordingly. Signed by Chief Judge Shelly D. Dick on 10/22/2018. (KAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

SONIA CLARK

CIVIL ACTION

VERSUS

16-585-SDD-RLB

RAILCREW XPRESS, L.L.C. AND
LINWOOD HUCKINS
RULING
This matter is before the Court on the Motion for Summary Judgment1 filed by
Defendants, RailCrew Xpress, L.L.C. (“RCX”) and Linwood Huckins (“Huckins”)(or
collectively “Defendants”). Plaintiff, Sonia Clark (“Plaintiff”) has filed an Opposition2 to
this motion, to which Defendants filed a Reply.3 For the reasons which follow, the Court
finds that Defendants’ motion should be granted.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, an African-American female, became employed with RCX on or about

September 16, 2014 as a full-time driver.4 Plaintiff was hired by Huckins, Regional
Manager for the Baton Rouge/Port Allen location of RCX, on the same day she
interviewed.5 RCX provides railroad companies with “24/7 on-call transportation for
railway crew members.”6

Because RCX’s business is “safely transporting people

1

Rec. Doc. No. 24.
Rec. Doc. No. 38.
3
Rec. Doc. No. 42.
4
Rec. Doc. No. 1, ¶ 14.
5
Rec. Doc. No. 25-2 at 8-9 (Deposition of Sonia Clark, pp. 95-96).
6
Rec. Doc. No. 24-4, ¶ 4 (Affidavit of Brian O’Hara, President and Chief Executive Officer of RCX). 
2

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throughout the country, safety is critical to the company’s success.”7
Plaintiff alleges that she approached Huckins on March 27, 2015 to request a
promotion to the Lead Driver position8 in the presence of her immediate supervisor
Monica Bourgeois (“Bourgeois”), the Branch Manager for the Baton Rouge/Port Allen
location.9

Plaintiff claims Bourgeois had previously advised her that a Lead Driver

position was open.10 However, in response to this request, Plaintiff alleges Huckins
replied that he would “never have a female n****r as a lead driver under him!”11 In a sworn
Declaration, Bourgeois stated that she was present and heard Huckins respond to Plaintiff
with this statement.12 Plaintiff contends this was not the only time Huckins verbally
abused her and claims he spoke to her and other African-American employees in a
racially derogatory and discriminatory manner, creating a hostile work environment.13
Plaintiff contends Casey Portier, a Caucasian female, was promoted to the Lead
Driver position after Plaintiff was terminated.14 However, there is no record evidence that
identifies Portier’s race or gender. Further, Vice President of Operations Support for RCX
Andrew Beck (“Beck”) attested that, in the weeks leading up to and at the time of Plaintiff’s
accident, there were no Lead Driver positions available in the Baton Rouge/Port Allen
location.15 Sandy Walker (“Walker”), Vice President of Human Resources for RCX, also

7

Id. at ¶ 5.
Rec. Doc. No. 1, ¶ 16. Plaintiff’s Declaration dated May 8, 2018, states that she requested a promotion
from Huckins “on or about March 28, 2015.” Rec. Doc. No. 38-2, ¶ 5.
9
Rec. Doc. No. 38-2, ¶ 5.
10
Id., ¶ 6.
11
Rec. Doc. No. 1, ¶ 17.
12
Rec. Doc. No. 38-3, ¶ 11.
13
Rec. Doc. No. 1, ¶ 18.
14
Plaintiff cites the Declaration of Bourgeois, Rec. Doc. No. 38-3, ¶ 12; however, nowhere in this
Declaration does Bourgeois identify Casey Portier as a “Caucasian female.”
15
Rec. Doc. No. 25-4, ¶ 5 (Affidavit of Andrew Beck, Vice President of Operations Support for RCX). 
8

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attested that, “[o]n March 27-28, 2015, there was no available position for lead driver in
the Baton Rouge/Port Allen location, nor was one expected to become available.”16
Two days following Plaintiff’s alleged request and denial for this promotion, on
March 29, 2015, Plaintiff was involved in a motor vehicle accident when she was rearended in her company vehicle traveling on Highway 190 in East Baton Rouge Parish.17
Plaintiff admits that she stopped in the left lane on U.S. Hwy 190 to make a left turn, and
she was “forced to travel backwards a short distance in order to execute said turn.”18
Plaintiff claims that she was at a complete stop and “signaled to traffic of her intent to
make a left hand turn on Highway 190 when suddenly and without warning she was rear
ended.”19 Plaintiff also notes that, Lieutenant Aaron Biddy (“Lt. Biddy”) of the City of
Livonia Police Department, who arrived on the scene of the accident that evening, did not
ticket Plaintiff or find her at fault for the accident but cited the driver of the other vehicle
for careless operation.20 Despite allegedly not being at fault, Plaintiff claims that she was
terminated that very date by Huckins for being involved in a “preventable accident”
allegedly due to Plaintiff’s backing up the vehicle on Highway 190.21
RCX, on the other hand, paints a very different picture of these events. RCX
produced evidence that all transport vehicles are installed with recording devices provided
by “Iyxt Drive Cam.”22 DriveCam video captures short video clips both inside and outside
the vehicles when activated by “an unusual driving event.”23 All DriveCam videos are

16

Rec. Doc. No. 26-5, ¶ 3a (Affidavit of Sandy Walker, Vice President of Human Resources for RCX).
Rec. Doc. No. 1, ¶ 19.
18
Rec. Doc. No. 38 at 3, citing Plaintiff’s Declaration, Rec. Doc. No. 38-2 at 3.
19
Rec. Doc. No. 1, ¶ 20.
20
Declaration of Lieutenant Aaron Biddy, Rec. Doc. No. 38-6, ¶¶ 6-7.
21
Rec. Doc. No. 1, ¶ 21.
22
Rec. Doc. No. 24-4, ¶ 6. 
23
Id. at ¶ 7.
17

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posted to the website for review by RCX.24 RCX contends that, on March 30, 2015,
members of RCX’s corporate management team, including Brian O’Hara (“O’Hara”),
President and Chief Executive Officer of RCX, Director of Safety Risk and Corporate
Claims Bryan Taylor (“Taylor”), and Vice President of Operations Support Beck, viewed
the footage from Plaintiff’s DriveCam recordings from the previous night.25
RCX claims this footage directly contradicted Plaintiff’s report of the accident as a
rear-end collision as it showed Plaintiff backing up in the left lane of travel on US 190
when she collided with the car approaching from behind.26 Asserting that Plaintiff “had
no business driving for RCX and she had to be terminated as her actions were careless,
reckless, stupid, and endangered lives,”27 O’Hara attested that he immediately concluded
Plaintiff should be terminated. Beck, who viewed the DriveCam footage with O’Hara,
attested that he also believed Plaintiff should have been terminated immediately as “such
conduct was immediate grounds for termination … as she exhibited reckless and
dangerous conduct that completely disregarded human life while driving an RCX
vehicle.”28 Both O’Hara and Beck attested that they had never heard of or seen Plaintiff
before viewing this footage.29
On April 1, 2015, Beck sent an email to Huckins inquiring whether Plaintiff had
been terminated.30 Huckins responded that he was “waiting on bryan,”31 and Beck

24

Id. at ¶ 8.
Id. at ¶¶ 11-12.
26
Id. at ¶ 13.
27
Id. at ¶ 14.
28
Rec. Doc. No. 25-4, ¶ 14 (Affidavit of Andrew Beck, Vice President of Operations Support for RCX).
29
Rec. Doc. No. 24-4, ¶10; Rec. Doc. No. 25-4, ¶ 6. 
30
Rec. Doc. No. 25-4, ¶ 15, Exhibit B.
31
Id. at 6.
25

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ultimately directed Huckins to “send in” Plaintiff’s termination on that date.32

The

Termination Report for Plaintiff dates her termination on March 29, 2015, the date of the
accident, and cites the reason for termination as “M23 Preventable accident” with remarks
stating “Sonia Clark backed the van up on a highway and had an accident.”33 Although
this document denotes Plaintiff’s termination date as March 29, 2015, the date this
document was signed and issued was April 1, 2015.34
Plaintiff disputes that the video footage submitted by Defendants is a complete and
accurate depiction of the images taken on the night of the accident. Plaintiff maintains
that she was at a complete stop, and her van was in Drive when she was rear-ended.
Plaintiff attests that she believed the recorder stopped permanently recording during most
of the time she was stopped.35 Thus, Plaintiff contends Defendants’ submitted footage
makes it erroneously appear that Plaintiff backed into the car that rear-ended her. Plaintiff
cites the Declaration of Bourgeois who declared that she “was tasked with investigating
Ms. Clark’s accident and determining whether she caused the accident and/or violated
any safety policy,”36 and that, on March 29, 2015, she observed the video footage from
Plaintiff’s van on her iPad.37 Bourgeois also stated that the video footage provided by
Defendants in discovery is “shorter and different” from the original footage she reviewed
on the night of the accident.38 Nevertheless, Plaintiff concedes that, “upon reviewing the
shortened footage closely, the images appear to be consistent with Ms. Clark’s history of

32

Id.
Rec. Doc. No. 38-13.
34
Id.
35
Rec. Doc. No. 38-2, ¶ 29 (Plaintiff’s Declaration).
36
Rec. Doc. No. 38-3, ¶ 18 (Declaration of Monica Bourgeois).
37
Id. at ¶ 19. 
38
Id. at ¶ 35.
33

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events.”39
Additionally, Plaintiff contends that it was company policy to place a driver involved
in a motor vehicle accident on suspension pending an investigation.40 Plaintiff cites to
the Bourgeois Declaration wherein Bourgeois declared that: (1) she was tasked with
investigating this accident;41 (2) she viewed the footage sent to her that evening;42 (3) she
spoke to Lt. Biddy who advised that Plaintiff was not at fault;43 (4) she concluded that
Plaintiff was not backing up at the time of the collision and thus not at fault;44 (5) Plaintiff’s
drug test of March 29, 2015 was negative for prohibited substances;45 and (6) she advised
Huckins that Plaintiff was not at fault for a preventable accident, to which he allegedly
responded that he “didn’t care.”46
Plaintiff also claims that she has never seen or received the “new Rules”47 under
which RCX claims she was terminated. RCX claims Plaintiff was terminated under its
company handbook Rule 7.1148 for backing up on a highway at night (an unsafe
maneuver) and Rule 7.449 for causing or contributing to a preventable accident involving
substantial material damage.50 Plaintiff claims she was questioned in her deposition from

39

Rec. Doc. No. 38 at 10.
Plaintiff cites to Rec. Doc. No. 38-9; however, nothing in this document supports this contention. In fact,
Rec. Doc. No. 38-9 at 7, entitled “3.7 Progressive Disciplinary,” provides in bold: “The employment
relationship is at will and may be terminated by the employee or the Company at any time for any
reason, with or without notice.”
41
Rec. Doc. No. 38-3, ¶ 18 (Declaration of Monica Bourgeois).
42
Id. at ¶ 19.
43
Id.
44
Id. at ¶ 20.
45
Id. at ¶ 21.
46
Id. at ¶ 22.
47
Rec. Doc. No. 38 at 6.
48
Rec. Doc. No. 26-1.
49
Rec. Doc. No. 25-5. 
50
Rec. Doc. No. 24-1 at 4.
40

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RCX’s Driver Orientation Handbook which does not contain these provisions.51 Notably,
RCX also claims Plaintiff was subject to termination as her conduct was a violation of
state law – Louisiana Revised Statutes 32:281(B) provides that “[t]he driver of a vehicle
shall not back the same upon any shoulder or roadway of any controlled-access highway
except as a result of an emergency caused by an accident or breakdown of a motor
vehicle.”
Following her termination, Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”)52 and, upon receiving a Right to Sue
Letter, filed this lawsuit alleging claims under Title VII of the Civil Rights Act of 1964,53
specifically that the Defendants’ failure to promote her and her termination were motivated
by race and gender discrimination. Plaintiff also contends she was subjected to a hostile
work environment based on race and gender. Plaintiff also seeks redress under 42
U.S.C. § 1981 and the Louisiana Employment Discrimination Law (“LEDL”).54 Defendants
now move for summary judgment on all of Plaintiff’s claims.
II.

LAW & ANALYSIS
A. 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.”55 “When assessing whether a dispute to any material fact exists, we consider all

51

See Rec. Doc. No. 38-2 at 8-42.
Rec. Doc. No. 1-4.
53
42 U.S.C. § 2000e et seq.
54
La. R.S. 23:301 et seq. Claims of discrimination brought under § 1981 and the LEDL are analyzed under
the same evidentiary framework applicable to claims of employment discrimination brought under Title VII;
thus, the analysis and reasoning for Plaintiff’s Title VII claims will apply with equal force to her Section 1981
and LEDL claims. LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir.1996).
55
Fed. R. Civ. P. 56(a).
52

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of the evidence in the record but refrain from making credibility determinations or weighing
the evidence.”56 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.”57 If the moving party satisfies its burden, “the non-moving party must show that
summary judgment is inappropriate by setting ‘forth specific facts showing the existence
of a genuine issue concerning every essential component of its case.’”58 However, the
non-moving party’s burden “is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.”59
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”60 All reasonable factual
inferences are drawn in favor of the nonmoving party.61 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”62 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his
allegations … to get to a jury without any “significant probative evidence tending to

56

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003)(quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S.Ct. at 2552)).
58
Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
59
Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
60
Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). 
61
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
62
RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
57

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support the complaint.”’”63
B. Title VII Failure to Promote
Plaintiff alleges that Defendants discriminated against her on the basis of race and
gender in failing to promote her to a Lead Driver position. In order to survive Defendants’
motion for summary judgment on her failure to promote claims, Plaintiff must establish a
prima facie case of discrimination by providing summary judgment evidence that (1) she
is a member of a protected class, (2) that she sought and was qualified for an open
position, (3) that she was rejected for the position, and (4) that the employer hired a
person outside of her class.64 If Plaintiff meets her prima facie burden, the Defendants
must “produce a legitimate, nondiscriminatory reason for the failure or refusal to [promote]
the plaintiff.”65 If the Defendants proffer a legitimate, nondiscriminatory reason for the
failure or refusal to promote Plaintiff, Plaintiff then “bears the ultimate burden of proving
that the defendant’s proffered legitimate nondiscriminatory reason is pretext for
discrimination. To carry this burden, the plaintiff must rebut each nondiscriminatory
reason articulated by the defendant.”66
It is undisputed that Plaintiff is an African-American female and, thus, in a protected
class. It is also undisputed that she was not promoted to Lead Driver. The Court finds,
however, that Plaintiff has failed to carry her burden of establishing prongs two and four.
Plaintiff must demonstrate through competent summary judgment evidence that she

63

Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
64
Lewis v. City of Shreveport, 2018 WL 752362 at *4 (W.D. La. Feb. 7, 2018)(citing McMullin v. Miss. Dep't
of Pub. Safety, 782 F.3d 251, 258 (5th Cir. 2015) (citing Williams-Boldware v. Denton Cty., 741 F.3d 635,
643 (5th Cir. 2014))).
65
Sharkey v. Dixie Elec. Membership Corp., 262 Fed. Appx. 598, 602 (5th Cir. 2008). 
66
Id.

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sought and was qualified for an open position. It is disputed whether there was in fact an
open position for Lead Driver on the date Plaintiff requested the promotion, and there is
no summary judgment evidence establishing that Plaintiff was qualified for a Lead Driver
position. Further, there is no summary judgment evidence that Casey Portier is a white
female or that he/she filled this position.
Plaintiff declared under oath that she approached Huckins in the presence of
Bourgeois on March 28, 2015 and asked to be promoted to Lead Driver.67 Plaintiff further
declared that “Monica Bourgeois had previously informed me that a lead driver position
was open or available.”68 In Bourgeois’ Declaration, she states that she was the branch
manager of Plaintiff’s location on March 28, 2015 and that, “[o]n or about March 28, 2015,
the lead driver position was open and there were two people who had applied for the
position: Sonia Clark and Casey Portier.”69 However, RCX Vice President Beck attested
that, in the weeks leading up to and at the time of Plaintiff’s accident, there were no Lead
Driver positions available in the Baton Rouge/Port Allen location.70 Sandy Walker, Vice
President of Human Resources for RCX, also attested that, “[o]n March 27-28, 2015,
there was no available position for Lead Driver in the Baton Rouge/Port Allen location,
nor was one expected to become available.”71 At first blush, it would seem that whether
thre was or was not a lead driver position open is a fact in dispute; however, Plaintiff offers
no evidence demonstrating the posting of this position, the date the position became
available, her formal application therefor, the date it was filled, and by whom. Considering

67

Rec. Doc. No. 38-2, ¶ 5 (Plaintiff’s Declaration).
Id. at ¶ 6.
69
Rec. Doc. No. 38-3, ¶¶ 2, 8 (Declaration of Monica Bourgeois).
70
Rec. Doc. No. 25-4, ¶ 5 (Affidavit of Andrew Beck, Vice President of Operations Support for RCX). 
71
Rec. Doc. No. 26-5, ¶ 3a (Affidavit of Sandy Walker, Vice President of Human Resources for RCX).
68

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the employment records that have been submitted as evidence in this case, Plaintiff’s
failure to submit competent summary judgment evidence regarding this alleged open
position undermines her claim.
Plaintiff has also failed to demonstrate that she was qualified for the position of
Lead Driver. First, no evidence has been produced that provides a job description for the
Lead Driver position or sets forth the job requirements and qualifications for this position.
It is particularly difficult to determine whether Plaintiff is qualified for a position where there
is no record evidence of the position’s job description and requirements/qualifications.
Bourgeois declared that “[t]he lead driver position required the employee to assist me, as
the branch manager,”72 and that “Lead Drivers and Drivers are subject to the same
employment policies and are similarly situated with regard to their driving
responsibilities.”73 Bourgeois’ Declaration does not contain information that describes the
Lead Driver position, duties, responsibilities, and qualifications.

Further, Bourgeois’

statement that Lead Drivers are “similarly situated” to drivers is a legal conclusion for
which there is no evidence to indicate Bourgeois is qualified to make.

Also, it is

disingenuous to claim that a Lead Driver is essentially the same position as Driver;
obviously, Lead Driver comes with a different title and better pay; as such, there must be
some distinction between the two positions. Notably, Plaintiff’s application for the Driver
position lists in detail the professional and personal expectations required to fill the Driver
position.74 No such application or job description is in evidence for the Lead Driver
position.

72

Rec. Doc. No. 38-3, ¶ 6 (Declaration of Monica Bourgeois).
Id. at ¶ 36.
74
Rec. Doc. No. 25-1 at 5.
73

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Secondly, Plaintiff has failed to establish through competent summary judgment
evidence that she was, in fact, qualified for the undescribed Lead Driver position. The
only mention of Plaintiff’s qualification for this position is found in Bourgeois’ Declaration,
wherein she declares that she reviewed the applicants for lead driver position and would
make a recommendation as to who she wanted to be promoted for approval by Huckins.75
Bourgeois states: “I felt Sonia Clark was qualified for the lead driver position and would
have preferred her to receive the promotion to lead driver.”76 This statement does not
demonstrate Plaintiff’s qualifications for the Lead Driver position and is a subjective,
conclusory statement devoid of factual support. Bourgeois offers no facts to support her
“feeling” and likewise provides no facts that would distinguish Plaintiff’s qualifications from
those of the alleged promotion recipient.
Finally, Plaintiff argues that, after Huckins refused to consider her for the Lead
Driver position based on her race, “the Caucasian applicant received the promotion.”77 In
support of this argument, Plaintiff cites to Bourgeois’ Declaration. Although Bourgeois
declares that Casey Portier applied for the Lead Driver position78 and ultimately received
the position after Plaintiff’s termination,79 nothing in Bourgeois’ Declaration identifies
Casey Portier as a Caucasian female. Arguments by counsel in a brief do not constitute
summary judgment evidence, and there is no summary judgment record evidence offered
by Plaintiff establishing that Casey Portier is a Caucasian female who received this
promotion on a date after Plaintiff’s termination. Bourgeois’ Declaration is general, vague,

75

Rec.Doc. No. 38-3, ¶ 7.
Id. at ¶ 9.
77
Rec. Doc. No. 38 at 9.
78
Rec. Doc. No. 38-3, ¶ 8 (Declaration of Monica Bourgeois).
79
Id. at ¶ 12.
76

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and unsubstantiated by company documents, and it does not create material issues of
fact.
Accordingly, Plaintiff has failed to carry her burden of demonstrating a prima facie
case of failure to promote based on race or gender. Because Plaintiff has failed to satisfy
this burden, no burden shifts to Defendants under McDonnell Douglas.80

Because

Plaintiff has failed to present competent summary judgment evidence to demonstrate
material facts in dispute as to her prima facie case, Defendants are entitled to summary
judgment on Plaintiff’s failure to promote claim.
C. Title VII Race/Gender Discrimination – Termination
Plaintiff also claims that her termination was based on her race and gender in
violation of Title VII. To prove race and/or gender discrimination under Title VII, Plaintiff
must establish that she is (1) “a member of a protected class” (2) “was qualified for the
position” (3) “was subjected to an adverse employment action”; and (4) “other similarly
situated persons were treated more favorably.”81 If Plaintiff establishes a prima facie case
of discrimination, the burden shifts to the Defendants to articulate legitimate, nondiscriminatory reasons for the adverse actions taken against her. 82 If the Defendants

80

The Court notes that there is pretext evidence on the failure to promote claim considering the alleged
statement by Huckins in response to Plaintiff’s inquiry regarding a promotion to Lead Driver. However,
unlike many other circuits, in applying United States Postal Serv. Brd. Of Governors v. Aikens, 460 U.S.
711 (1983), the Fifth Circuit has made it abundantly clear that, “under McDonnell Douglas, at the summary
judgment stage the burden of producing a legitimate, nondiscriminatory reason only shifts to the employer
after the plaintiff has established a prima facie case. There is no authority in this Circuit that would allow
the employee's burden of establishing a prima facie case to be extinguished simply because an employer
exercises its right to challenge the prima facie case and also proffers a legitimate, nondiscriminatory reason
for its decision.” Hague v. Univ of Texas Health Science Ctr. at San Antonio, 560 Fed. Appx. 328, 334-35
(5th Cir. 2014)(emphasis in original). Accordingly, because Plaintiff fails to present a prima facie case of
failure to promote, the inquiry ends on this claim.
81
Septimus v. Univ. of Hous., 399 F.3d 601, 609 (5th Cir. 2005).
82
Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009)

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satisfy this burden of production, the burden shifts back to Plaintiff, who must “offer
sufficient evidence to create a genuine issue of material fact “either (1) that the
defendant’s reason is not true, but is instead a pretext for discrimination (pretext
alternative); or (2) that the defendant’s reason, while true, is only one of the reasons for
its conduct, and another motivating factor is the plaintiff’s protected characteristic (mixedmotive[s] alternative).”83 Plaintiff proceeds under a pretext theory in this case.84
1. Similarly Situated Comparators
Turning to Plaintiff’s prima facie case of race/gender discrimination, it is undisputed
that Plaintiff satisfies the first three prongs. However, Plaintiff has failed to satisfy prong
four in that she has failed to identify a proper comparator—someone “similarly situated”
who was “treated more favorably.”85 The law is clear that, “[i]n the context of a race [or
sex] discrimination claim where the plaintiff alleges that employees who were not
members of the protected class received more [favorable treatment], the plaintiff must
come forward with specific evidence of comparators who were similarly situated.”86
Courts within the Fifth Circuit define “similarly situated” narrowly.87 In evaluating whether
an alleged comparator is similarly situated,
“The employment actions being compared will be deemed to have been
taken under nearly identical circumstances when the employees being
compared held the same job or responsibilities, shared the same supervisor

83

Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004); see also Vaughn v. Woodforest Bank,
665 F.3d 632, 637 (5th Cir. 2011) (citing same in the context of a Title VII race discrimination case).
84
Rec. Doc. No. 38 at 13.
85
Septimus , 399 F.3d at 609.
86
Corley v. Louisiana ex rel. Div. of Admin., Office of Risk Mgmt, 816 F.Supp.2d 297, 316 (M.D. La.
2011)(citing Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 259–60 (5th Cir. 2009))(emphasis added).
87
See Horton v. G4S Secure Solutions (USA), Inc., No. 16-544-SDD-EWD, 2018 WL 1997535 at *5 (M.D.
La Apr. 27, 2018)(citing
Brown v. Bd. of Trustees Sealy Indep. Sch. Dist., 871 F.Supp.2d 581, 593 (S.D. Tex. 2012); see also Lopez
v. Kempthorne, 684 F. Supp. 2d 827, 856-57 (S.D. Tex. 2010)).

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[,] or had their employment status determined by the same person[.]”88
“Employees with different supervisors, who work for different divisions of a
company ... generally will not be deemed similarly situated.” The Fifth Circuit
has further explained, that “employees who have different work
responsibilities ... are not similarly situated.”89
Plaintiff identifies two Caucasian male RCX drivers, John Demoulin (“Demoulin”)
and Kevin Payne (“Payne”), as similarly situated comparators. However, Plaintiff fails to
present competent summary judgment evidence that either is a similarly situated
comparator, and RCX submits competent summary judgment evidence demonstrating
that they are not similarly situated to Plaintiff.
RCX has submitted evidence showing that Demoulin was a Lead Driver in the
Baton Rouge/Port Allen location who did not hold the same job or job title as Plaintiff.90
Further, Human Resources Vice President Walker attested that Demoulin was never
involved in any accident – preventable or non-preventable – while employed by RCX.91
Relying again on the Bourgeois Declaration, Plaintiff claims that, as a Lead Driver,
Demoulin is a proper comparator because Bourgeois stated that “Lead Drivers and
Drivers are subject to the same employment policies and are similarly situated with regard
to their driving responsibilities.”92 As set forth above, Bourgeois’ statement that Lead
Drivers are “similarly situated” to drivers is a legal conclusion for which there is no
evidence to indicate Bourgeois is qualified to make. Further, the Fifth Circuit has made
clear that employees with different job titles and different positions are not similarly

88

Id. (quoting Turner v. Kansas City S. Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012)(quoting Lee v. Kan. City
S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009))).
89
Id. (quoting Lee, 574 F.3d at 259 (citing Wyvill v. United Cos. Life Ins., 212 F.3d 296, 302 (5th Cir. 2000)).
90
See Rec. Doc. No. 26-5, ¶ 3b. (Affidavit of Sandy Walker).
91
Id.
92
Rec. Doc. No. 38-3, ¶ 36 (Declaration of Monica Bourgeois).

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situated. Thus, the Court finds that Demoulin is not Plaintiff’s comparator by job title
alone.
Plaintiff also claims that RCX’s statement that Demoulin did not have an accident
driving for RCX is “untrue.”93

Plaintiff cites to Bourgeois’ Declaration wherein she

declared: “I am aware of other accidents where employees of Railcrew Xpress were
involved in ‘at fault’ accidents and were not terminated.

Those drivers were John

Demoulin and Kevin Payne. Mr. John Demoulin’s accident was never reported to the
police.”94 Plaintiff argues in her Opposition that “[n]o accident report was generated as
this was a single card accident and Linwood Huckins decided there was not sufficient
damage to discipline [Demoulin].”95 Yet, this statement does not appear in the Bourgeois
Declaration.
The Court finds, under Fifth Circuit precedent,96 that Bourgeois’ statement is not
competent summary judgment evidence. First, Bourgeois declares that she has personal
knowledge of the facts contained in her Declaration,97 yet she provides no factual support
for this personal knowledge in contrast to Walker’s attestation that she has personal
knowledge of Demoulin’s employment records in her role as Vice President of Human
Resources and her access to the employment records of both Demoulin and Payne.
Walker’s access is demonstrated by the attachment of the relevant employment records
as exhibits to her Affidavit. No such statement of facts to support her alleged personal
knowledge and no accompanying documentation are referenced in Bourgeois’

93

Rec. Doc. No. 38 at 13.
Rec. Doc. No. 38-3, ¶ 29 (Declaration of Monica Bourgeois).
95
Rec. Doc. No. 38 at 13.
96
 See note 97, infra. 
97
Rec. Doc. No. 38-3, ¶ 3. 
94

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Declaration. Furthermore, Bourgeois declares that, while an employee of RCX, Demoulin
had an “at fault” accident; however, Bourgeois does not state that this alleged accident
happened while driving a RCX vehicle, caused property and/or personal injuries, or
included driving practices that violated company policy or Louisiana law.

Finally,

Bourgeois’ statement “I am aware” does not establish that she is aware through personal
knowledge rather than hearsay.98 Personal knowledge means that the affiant “must have
had an opportunity to observe, and must have actually observed the fact.”99 Nothing in
Bourgeois’ Declaration demonstrates her personal knowledge of these “facts.”
The Court also finds that Payne is not a similarly situated comparator. Although
Plaintiff argues Payne was “employed in her area,”100 the record evidence demonstrates
that Payne was employed by RCX in West Quincy, Missouri.101

Plaintiff offers no

evidence to dispute this fact. This alone excludes Payne as Plaintiff’s comparator under
Fifth Circuit law: “Employees with different supervisors, who work for different divisions
of a company ... generally will not be deemed similarly situated.”102 There is no evidence
before the Court that Payne and Plaintiff shared a supervisor, and they clearly did not

98

See Floyd v. Chilly’s L.L.C. of Alabama, No. 15-00544-BAJ-RLB, 2017 WL 1455024 at *3 (M.D. La. Apr.
21, 2017)(“[I]t is not enough to merely stated that the affidavit is based on personal knowledge, it must be
clear that it is also based on facts alleged in the affidavit. See Bright v. Ashcraft, 259 F. Supp. 2d 494, 498
(E.D. La. 2003)(“A declarant must provide evidence to establish that he has personal knowledge of the
facts stated.”). Personal knowledge means that the affiant “must have had an opportunity to observe,
and must have actually observed the fact.” Ripple v. Marble Falls Indep. Sch. Dist., 99 F. Supp. 3d 662,
673 (W.D. Tex. 2015)(emphasis added). Finally, “[u]nsubstantiated assertions, improbable inferences, and
unsupported speculation are not competent summary judgment evidence.” Walker v. SBC Servs., Inc., 375
F. Supp. 2d 524, 535 (N.D. Tex. 2005). Any statements that violate the rule[s] may “not [be] considered for
summary judgment purposes; any portions of the declarations that are not struck remain part of the
summary judgment record.” Ripple v. Marble Falls Indep. Sch. Dist., 99 F. Supp. 3d 662, 673 (W.D. Tex.
2015)).
99
Ripple, 99 F. Supp. 3d at 673.
100
Rec. Doc. No. 38 at 14. 
101
Rec. Doc. No. 26-5, ¶ 3c. (Affidavit of Sandy Walker); Exhibit A to Affidavit, pp. 7-10.
102
See fn. 88 supra.

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work in the same divisions as demonstrated by simple geography. Plaintiff’s reliance on
Bourgeois’ Declaration regarding Payne is without merit for the same reasons set forth
above and based on the evidence submitted by RCX establishing that Payne’s accident
was not under “nearly identical circumstances” as Plaintiff’s.103
Accordingly, because Plaintiff has failed to point to a proper, similarly situated
comparator,104 she has failed to establish a prima facie case of race discrimination.
Although the Court need not go further, the Court also finds that, even if Plaintiff could
establish a prima facie case of race/gender discrimination, she has failed to overcome
Defendants’ legitimate, nondiscriminatory reason for her termination with pretext
evidence suggestive of race or gender discrimination.
2. Legitimate, Non-discriminatory Reason for Termination
RCX has presented a legitimate, non-discriminatory reason for terminating
Plaintiff. RCX submitted evidence demonstrating that, on March 30, 2015, members of
RCX’s corporate management team O’Hara, Taylor, and Beck viewed the footage from
Plaintiff’s DriveCam recordings the previous night.105 Both O’Hara and Beck attested
that, upon viewing Plaintiff backing up on a 55 mph highway at night, they deemed her
conduct sufficiently egregious and dangerous to warrant immediate termination.106
Plaintiff’s Termination Report, dated as submitted April 1, 2015, states that Plaintiff was

103

Id. at ¶ 3d.
Defendants offered evidence of a male Caucasian driver and a female Caucasian driver who were both
terminated for violations similar to Plaintiff’s in driving accidents. Rec. Doc. No. 26-5, ¶ 3f. Plaintiff claims
these drivers are not comparators because they were at fault in their accidents and were not rear-ended.
Plaintiff argues that Defendants produced no evidence of similar employees terminated after being rearended; however, Defendants are correct that it is not their burden at all to produce evidence of similarly
situated comparators.   
105
Rec. Doc. No. 24-4, ¶¶ 11-12.
106
See Rec. Doc. No. 24-4 and Rec. Doc. No. 25-4.
104

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terminated on March 29, 2015 with a Discharge notation of “M23 Preventable Accident”
and Remarks that “Sonia Clark backed the van up on a highway and had an accident.”107
RCX maintains Plaintiff’s conduct violated RCX backing policy Rule 7.11 and Rule 7.4 set
forth in the RCX Employee Policy Manual and, importantly, Louisiana law.
Rule 7.11 Backing Policy provides, in pertinent part, as follows:
Drivers should make every effort to avoid operating a vehicle in such a
manner that would require a backing maneuver. Backing a vehicle is not
encouraged and contrary to our goal of providing safe, dependable
transportation services, and to perform those services efficiently. Backing
should be isolated exceptions to the operation of the vehicle, and backing
should only occur when there is no other reasonable alternative.
***
This backing policy has been implemented to ensure the safety of you, your
crew, and RCX equipment. Failure to comply with this policy will result in
disciplinary action, up to and including termination of employment.108
It is undisputed that Plaintiff backed up on Highway 190 at night while driving her RCX
van.109 Further, the Court has viewed the video footage of Plaintiff’s accident,110 and the
Court finds that Plaintiff was backing up on the highway at night.111
Rule 7.4 Accident Policy provides, in pertinent part, as follows:
A preventable accident is one in which the driver failed to do everything
reasonably possible to avoid the accident. The fact that a driver, who
becomes involved in a vehicle collision, is not legally charged does not
mean that the driver could not have avoided the accident.
All accidents are preventable if a driver is involved in:
***
A violation of RCX Critical Safety rules, RCX policies or local, state
or federal laws or regulations.112

107

Rec. Doc. No. 38-13.
Rec. Doc. No. 26-1 at 2. (emphasis in original).
109
Rec. Doc. No. 38-2 at ¶ 25.
110
Rec. Doc. No. 31.
111
The Court makes no determination whether Plaintiff was backing up at the time of the collision or whether
Plaintiff “caused” the accident.   
112
Rec. Doc. No. 25-5 at 2.
108

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Rule 7.4 goes on to explain the disciplinary process for a non-preventable accident and
a preventable accident. Under “Preventable Accident,” the policy provides that “a driver
will be terminated if any of the following circumstances exist,” and includes “The accident
is of a level of severity which brings about substantial material loss or loss of human
life.”113 The policy also provides an employee’s right to an appeal process which requires
the driver to appeal, in writing, with the Location and/or Regional Manager, within 30 days
from the date of the incident.114
Rule 7.4 expressly provides that an accident may be classified as preventable if
the driver has committed a “violation of RCX Critical Safety rules, RCX policies or local,
state or federal laws or regulations.” Plaintiff clearly violated the Rule 7.11 Backing policy,
and RCX also claims Plaintiff violated Louisiana Revised Statutes 32:281(B), which
provides that “[t]he driver of a vehicle shall not back the same upon any shoulder or
roadway of any controlled-access highway except as a result of an emergency caused by
an accident or breakdown of a motor vehicle.” Plaintiff has not disputed that her conduct
violated the law. Accordingly, the record reflects that RCX’s decision to terminate Plaintiff
based on these violations comports with its Employee Policy Manual and constitutes a
legitimate, non-discriminatory reason for Plaintiff’s termination.
3. Pretext
Plaintiff presents several arguments challenging the veracity or the legitimacy of
RCX’s proffered reason for her termination and claims this reason is a pretext for race
and gender discrimination. Nevertheless, even if Plaintiff could demonstrate a prima facie

113
114

Id. at 3.
Id. 

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case, and then show that Defendants’ legitimate, non-discriminatory business reason was
pretext or at least a motivating factor in her “termination,” Defendants may still prevail by
establishing that the same action would have occurred regardless of her race or
gender.115 The Court will briefly address Plaintiff’s pretext arguments.
Date of Termination/Huckins’ Decision
Much is made of whether Plaintiff was terminated on March 29, March 30, or April
1 of 2015, and whether Plaintiff was terminated by Huckins immediately following the
accident, or at the direction of the RCX Management Team after they viewed the accident
footage.

Neither issue is material to whether Plaintiff was terminated due to her

race/gender.
Plaintiff claims Defendants’ alleged termination date is incorrect. However, Plaintiff
herself has offered differing dates for her termination. Plaintiff alleged in her Complaint
that she was terminated on March 29, 2015,116 and stated in her EEOC Charge that she
was terminated on March 29, 2015.117 In her Declaration, Plaintiff stated under penalty
of perjury that Huckins called her on the morning of March 30, 2015 and terminated her
in that call.118 RCX states Plaintiff was terminated on April 1, 2015 when Huckins was
directed to process her paperwork,119 and that is the submission date on Plaintiff’s
Termination Report.120 Yet, the Termination Report clearly sets forth the termination date
retroactive to the date of the accident – March 29, 2015. That the parties disagree on the

115

See e.g., LaCaze v. W.W. Grainger Inc., 2005 WL 1629936 at *6 (W.D. La. 2005)(citing Rachid, 376
F.3d at 312) see also, Machinchick v. PB Power, Inc., 398 F.3d 345 (5th Cir. 2005).
116
Rec. Doc. No. 1, ¶ 21.
117
Rec. Doc. No. 26-3.  
118
Rec. Doc. No. 38-2, ¶¶ 19-20.
119
Rec. Doc. No. 25-4, ¶ 15, Exhibit B.
120
Rec. Doc. No. 38-13.

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actual date of termination is irrelevant to the issue in this case.
Plaintiff contends Huckins terminated Plaintiff without reviewing the video footage,
without direction from RCX management, and despite Bourgeois’ recommendation to
Huckins that Plaintiff was not at fault for the accident based on her viewing of the footage
and as set forth in Lt. Biddy’s police report. RCX Management team members Beck and
O’Hara both attested that they had never heard of or seen Plaintiff before viewing this
footage.121

Both also attested that, immediately upon viewing the footage, they

determined that Plaintiff should be terminated for the egregious and dangerous driving
exhibited on the night of the accident. Plaintiff has offered no evidence to dispute that
Beck and O’Hara reached this conclusion without respect to, or knowledge of, Plaintiff’s
race or gender. It is also uncontroverted that neither Beck nor O’Hara knew anything
about the alleged discriminatory conduct by Huckins until after Plaintiff filed this lawsuit.
Thus, there is no evidence that Plaintiff’s race or gender, or her alleged issues with
Huckins, played any role in the management team’s decision to terminate her.
Plaintiff insists that Huckins had the authority to fire her and that he did so without
regard to management or viewing footage from the accident. However, as demonstrated
above, Plaintiff herself has offered two different dates of her termination. Moreover, the
email communications among the management team just days after the accident suggest
that Huckins waited for instructions from management and did not inform management’s
decision to terminate Plaintiff.

Beck asked Huckins on April 1 if Plaintiff had been

terminated yet. When Huckins responds that he has not taken action because was

121

Rec. Doc. No. 24-4, ¶10; Rec. Doc. No. 25-4, ¶ 6. 

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waiting on Bryan (O’Hara), Beck instructs him to go ahead and submit Plaintiff’s
termination. Twice in this communication, Huckins states that he was waiting on Bryan
and “thought [he] had to wait for Bryan,” which demonstrates that Huckins did not believe
he had the authority to terminate Plaintiff on his own. Nevertheless, even accepting
Plaintiff’s version of the events as true, if the management team merely later ratified
Huckins’ decision (that they did not know he made), Plaintiff has failed to point to any
summary judgment evidence that would show that the management team would not have
reached the same decision regardless of Huckins.
Bourgeois’ Investigation and Recommendation
Plaintiff also offers as pretext evidence the fact that Huckins and/or the
management team “blatantly disregard[ed]” the findings of Bourgeois. Bourgeois stated
that she was “tasked with investigating Ms. Clark’s accident and determining whether she
caused the accident and/or violated any safety policy.”122 After viewing the accident
footage and consulting with Lt. Biddy, Bourgeois “concluded that Ms. Clark was not
backing up at the time of the accident and was not the cause of the accident.”123 However,
the Court finds that RCX management did not have to accept Bourgeois’ recommendation
or findings. According to the summary judgment evidence, it was not Bourgeois’ job
responsibility to reach a final conclusion as to discipline. Rule 7.4 of the Employee Policy
Manual states:
Regional Managers, Area Managers and Location Managers have the
responsibility to ensure that an accident is properly reported, investigated
and the determined counseling/discipline is administered. The Safety
Oversight Committee bears the responsibility of determining the
preventability of an accident when extenuating circumstances fall outside

122
123

Rec. Doc. No. 38-3, ¶ 18 (Declaration of Monica Bourgeois).
Id. at ¶ 20. 

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the standard parameters of preventability determination.124
It is clear from the Policy language that Bourgeois, as Branch Manager, did not have the
authority to make such conclusions and findings of her own accord, and further, it is clear
from the record in this case that the Safety Oversight Committee deemed this accident
one for which it would determine preventability and discipline.
Lt. Biddy’s Police Report
Plaintiff also claims that Huckins and/or RCX ignored Lt. Biddy’s Police Report
finding Plaintiff not at fault and citing the other driver for the accident. Under the Policy,
Lt. Biddy’s findings are irrelevant to RCX’s determination of preventability. Rule 7.4
states: “The fact that a driver, who becomes involved in a vehicle collision, is not legally
charged does not mean that the driver could not have avoided the accident.”125 It
further states that “[a]ll accidents are preventable if the driver is involved in … [a] violation
of RCX Critical Safety rules, RCX policies or local, state or federal laws or regulations.”126
As demonstrated above, Plaintiff’s conduct before the accident violated both RCX policy
and Louisiana law, and RCX was not bound by the determination of Lt. Biddy that Plaintiff
was not at fault for the accident.
Technical Problems with Video Footage
Plaintiff also claims that the video footage submitted to the Court is much shorter
than the footage viewed by Bourgeois on the night of the accident and does not capture
the entirety of the seconds leading up to the accident.

Plaintiff cited to email

communications demonstrating technical problems with the video footage, and she claims

124

Rec. Doc. No. 25-5.
Rec. Doc. No. 25-5 at 2 (emphasis added).
126
Id.   
125

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that it has been pieced together to appear that she was backing up when she was rearended when she was actually stopped and the vehicle was in Drive.
Accepting Plaintiff’s claims as true regarding the video, this fact is immaterial to
the issue before the Court. Indeed, the Court could not ascertain whether Plaintiff was
still backing up or if she was stopped at the time of impact; however, it does not change
the fact that she is clearly backing up on a state highway at night which violates RCX
policy and Louisiana law. Plaintiff continually mischaracterizes RCX’s proffered reason
for her termination – she was not terminated for being “at fault” in the accident. Rather,
pursuant to the definitions set forth in the Policy, she was terminated based on the finding
that the accident was preventable due to her violations of company policy and Louisiana
law.
Plaintiff Was Not Provided Rules 7.11 or 7.4
Plaintiff’s argument that she was not provided with the Employee Policy Manual or
Rules 7.11 or 7.4 is meritless. Plaintiff declared that she “did receive a Railcrew Express
handbook when [she] was hired,” and Plaintiff attached as an exhibit portions of that
handbook, entitled Professional Driver Orientation Notebook.127 Plaintiff further states:
“during my deposition questions to me by opposing counsel were based upon the
handbook I received,”128 and “I understand that certain sections of another handbook
were used by Railcrew Xpress Corporate to attempt to ratify my termination by Mr.
Huckins.”129 Plaintiff also states that her handbook does not contain Sections 7.4 and

127

Rec. Doc. No. 38-2 at ¶ 30 (Plaintiff’s Declaration); pp. 8-42.
Id. at ¶ 31.
129
Id. at ¶ 32.
128

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7.11.130 Plaintiff’s claim that she was never provided and did not have access to the
Employee Policy Manual containing these provisions is undermined by her own evidence.
The very handbook offered by Plaintiff as an exhibit expressly states the following on
page 29: “The RailCrew Xpress Employee Handbook can be found in its entirety on our
website www.railcrewxpress.com.

It is your responsibility to read and apply all

policies contained in it. It is important to periodically review it for updates.”131 This
language comes directly from the handbook Plaintiff admits she was given. Notably, this
is also the document that sets forth the appeal process of which Plaintiff claims she was
not apprised.
Backing Up Not Prohibited
Although the video footage clearly shows Plaintiff backing up, Plaintiff seemingly
refused in her deposition to acknowledge that she had backed up on the highway. When
asked if she backed up, she responded: “I wouldn’t call it a backup, per se.”132 After
further questioning, she testified: “I don’t consider it a backup.”133 She admitted that she
put her car in reverse but stated that she “didn’t hit the accelerator. [She] just coasted
back.”134 When pressed with the inquiry how she could move backwards without using
the accelerator, she responded: “Well, after I put it in Reverse and gave it a little tap, that
was that.”135 A few weeks after her deposition, Plaintiff executed a Declaration wherein
she finally admitted that she did “back up prior to the accident[.]”136

130

Id. at ¶ 33.
Rec. Doc. No. 38-2 at 36 (emphasis added).
132
Rec. Doc. No. 25-2 at 4 (Deposition of Sonia Clark, p. 73, lines 6-7).
133
Id. (Deposition of Sonia Clark, p. 73, line 25).
134
Id. at 5 (Deposition of Sonia Clark, p. 74, lines7-8). 
135
Id. (Deposition of Sonia Clark, p. 73, lines 14-15).
136
Rec. Doc. No. 38-2, ¶ 25 (Plaintiff’s Declaration). While the Court recognizes that it cannot make
credibility determinations at the summary judgment stage, and it does not do so here, Plaintiff undermines
131

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Bound by this admission, Plaintiff now shockingly argues that “neither Rule 6 of
Ms. Clark’s Notebook nor Rule 7.11 prohibit backing up on a highway and/or at night.”137
Notwithstanding the undisputed fact that Louisiana law prohibits backing up on a highway
at any time, Rule 6 of the Notebook states: “backing is prohibited except under the
most exceptional circumstances;” “Drivers should make every effort to avoid
operating a vehicle in such a manner that would require a backing maneuver;” and
“Backing a vehicle is not encouraged.”138 Plaintiff has not argued nor has she offered any
evidence that missing her turn and backing up constitutes “the most exceptional
circumstances” for which this prohibition would not apply.

Further, Rule 7.11 uses

generally the same language as found in the Notebook but also states: “Backing should
be isolated exceptions to the operation of the vehicle, and backing should only occur
when there is no other reasonable alternative.”139 Again, Plaintiff failed to explain how
her backup qualified as an isolated exception based on no other reasonable alternative.”
Subrogation
Finally, Plaintiff argues that, “if Railcrew Xpress was so certain that Sonia Clark
was the cause of the accident, it begs the question: why did Railcrew Xpress seek to
subrogate its rights against the other driver for the damage caused to its vehicle?”140 As
stated above, RCX did not terminate Plaintiff for being the cause of the accident; rather,
it terminated Plaintiff for violating company policy and Louisiana law. Indeed, Rule 7.4
contemplates that drivers may be deemed to have been involved in preventable accidents

her own credibility with the conflicting statements in her deposition and Declaration.
137
Rec. Doc. No. 38 at 12.
138
Rec. Doc. No. 38-2 at 28 (emphasis added).
139
Rec. Doc. No. 26-1 (emphasis in original). 
140
Rec. Doc. No. 38 at 12.

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where even a small portion of negligence is on the part of the driver. That RCX sought
subrogation against the other driver in no way invalidates its finding that Plaintiff’s conduct
violated the clear language of Rule 7.11.
As discussed above, Plaintiff articulates several disputed facts in this case;
however, none of these facts are material to the determination of whether Plaintiff was
discharged because of her race and gender rather than her violation of company driving
policies and Louisiana traffic laws. The United States District Court for the Western
District of Louisiana addressed a Title VII case with similar facts in Mayes v. Office Depot,
Inc. and held:
While Mayes has arguably presented evidence that Office Depot's
explanation is pretextual, she has not presented sufficient evidence to
support an inference that intentional discrimination was the real reason for
Office Depot's employment decision. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In
Reeves, the Supreme Court recognized that a prima facie showing,
combined with evidence of pretext, may not always be enough to defeat
judgment as a matter of law, stating that, “if the plaintiff created only a weak
issue of fact as to whether the employer's reason was untrue and there was
abundant and uncontroverted evidence that no discrimination had
occurred,” the employer may be entitled to judgment in its favor. Reeves,
530 U.S. at 148, 120 S.Ct. 2097. In the case at bar, Mayes has established
a prima facie case of discrimination, but has failed to carry the ultimate
burden of showing that Office Depot's proffered reasons for not promoting
her were false and that the real reason was discrimination. For the reasons
stated above, the Plaintiff's claims for discrimination under Title VII, the
ADEA, § 1981, and state are hereby dismissed with prejudice.141
The same reasoning and analysis applies to the case before the Court. While
Plaintiff has not presented a prima facie case of discrimination, even assuming she had,
Plaintiff has failed to demonstrate that RCX’s legitimate reasons for her termination were

141

292 F.Supp.2d 878, 893-94 (W.D. La. 2003)

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a pretext for race and gender discrimination. The Court finds ample evidence in the
record demonstrating that Plaintiff would have been terminated for company policy
violations regardless of her race or gender. Furthermore, whether the Court views RCX’s
findings and decisions as to Plaintiff incorrect is not the question. The only question
before the Court is whether the findings and decisions were motivated by Plaintiff’s race
or gender. The Fifth Circuit cautions that courts are not in the business of second
guessing business judgments,142 and the Court declines to do so here.
D. Title VII Hostile Work Environment
Defendants also move for summary judgment on Plaintiff’s hostile work
environment claim on the grounds that this claim has not been exhausted as it was not
asserted in the EEOC charge of discrimination. Plaintiff acknowledges that she did not
reference harassment or hostile work environment in her EEOC charge; however, she
argues that she may assert this claim as it was “reasonably expected to grow out of the
charge of discrimination.”143 Plaintiff cites to general boilerplate law on this issue, but she
fails to cite any jurisprudence that would support the argument that her hostile work
environment claim reasonably grew out of her race discrimination claim. This is likely
because the Fifth Circuit has repeatedly held to the contrary. In Mitchell v. UTLX Mfg.,
L.L.C., where the plaintiff alleged only discrimination and retaliation in his EEOC charge,
the Fifth Circuit held:
Even if we were to consider the district court's finding that Mitchell had failed
to exhaust the administrative remedies for his hostile work environment
claim, we would affirm the district court. Upon reviewing both Mitchell's initial
and amended EEOC complaints, it is clear that Mitchell raised only his race

142

Walton v. Bisco Indus. Inc., 119 F.3d 368, 372 (5th Cir.1997).
Rec. Doc. No. 38 at 15, quoting Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006)(quoting Sanchez
v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)). 
143

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discrimination and retaliation claims before the EEOC. Thus the district
court correctly dismissed his hostile work environment claim as
unexhausted.144
Similarly, in Turner v. Novartis Pharmaceuticals Corp., the Fifth Ciruit held:
The district court correctly ruled that Turner did not exhaust his
administrative remedies in relation to his hostile work environment claim.
Since long before McClain v. Lufkin Ind., Inc., 519 F.3d 264, 273 (5th
Cir.2008), it has been clear that an employee must file his charge with the
EEOC and exhaust administrative remedies by requesting an investigation
of the facts he claims support a Title VII claim. Exhaustion must precede a
lawsuit. Turner filed two EEOC charges, one alleging discrimination and one
alleging retaliation. Neither of the two charges reasonably encompasses his
new claim of a hostile work environment. See Pacheco v. Mineta, 448 F.3d
783, 788–89 (5th Cir.2006) (finding that the scope of an EEOC charge is
both the charge itself and the investigation which can “reasonably be
expected to grow out of the charge of discrimination” (citation omitted)).
Because Turner did not exhaust his administrative remedies, summary
judgment was proper on the hostile work environment claim.145
Thus, the Court finds that investigation into Plaintiff’s race and gender-based
discrimination charges would not reasonably lead the EEOC to investigate a hostile work
environment claim.146 Defendants are entitled to summary judgment on this claim.
Moreover, Plaintiff’s hostile work environment claim would also be dismissed on
the merits.147 Plaintiff’s arguments on this issue, particularly since she acknowledges that
Huckins allegedly made only one racial epithet in her presence, and she was unaware of

144

569 Fed.Appx. 228, 231 (5th Cir. 2014).
442 Fed.Appx. 139, 141 (5th Cir. 2011).
146
See Kretchmer v. Eveden, Inc., 374 Fed.Appx. 493, 495 (5th Cir. 2010) (unpublished) (per curiam); see
also Thomas v. Tex. Dep't of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000).
147
To establish a prima facie case of discrimination premised upon the theory of hostile work environment,
a plaintiff must show the following: (1) she belongs to a protected group; (2) she was subjected to
unwelcome harassment; (3) the harassment of which plaintiff complained was based on [race/gender]; and
(4) the harassment affected a term, condition, or privilege of employment. Claiborne v. HUB Enterprises,
Inc., 918 F.Supp.2d 579, 587 (W.D. La. 2013)(citations omitted). Because this claim involves alleged
supervisor harassment that did culminate in a tangible employment action, the Court omitted the fifth
element which encompasses the Ellerth/Faragher affirmative defense. See Johnson v. Fluor Corporation,
181 F.Supp.3d 325, 337 (M.D. La. 2016).
145

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any other complaints by co-workers of alleged similar conduct until after her
termination,148 run contrary to settled Supreme Court and Fifth Circuit jurisprudence.
Under federal law, the mere utterance of ethnic or racial epithets that engender
offensive feelings in an employee, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms, conditions, and
privileges of employment.149 Instead, a plaintiff must establish that the harassment
complained of was sufficiently severe or pervasive to alter the conditions of her
employment and create an abusive working environment. Examples of more frequent
utterances in other cases cited by the Eastern District of Louisiana in Hardy v. Federal
Express Corp. were insufficient to establish a hostile work environment:
[I]n Vaughn v. Pool Offshore Co., 683 F.2d 922 (5th Cir. 1982), the Fifth
Circuit did not find a hostile work environment where plaintiff was directly
called racial epithets by coworkers. Similarly, in Grant v. UOP, Inc., 972 F.
Supp. 1042 (W.D. La. 1996), aff'd, 122 F.3d 1066 (5th Cir. 1997), the court
held that five separate utterances of the word ‘nigger’ directly to the plaintiff
were insufficient to establish a hostile work environment claim. See also,
Smith v. Beverly Health and Rehabilitation Serv., Inc., 978 F. Supp. 1116
(N.D. Ga. 1997) (holding that a several utterances of racial epithets by a
supervisor were insufficient to support hostile work environment claim);
McCray v. DPC Indus., Inc., 942 F. Supp. 288 (E.D. Tex. 1996) (holding that
five uses of the terms “black Yankee” and “son,” two racial jokes, and the
use of the word “nigger” were insufficient to establish a hostile work
environment claim).150
Similarly, In Johnson v. TCB Constr. Co., the Fifth Circuit found there was
insufficient evidence to establish a racially hostile work environment where a supervisor's
comment that the plaintiff was just “like a damn n****r” was isolated; there was no

148

See Rec. Doc. No. 25-2 at 12 (Deposition of Sonia Clark, p. 107).
See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Lauderdale v. Tex. Dep't of Criminal
Justice, Inst. Div., 512 F.3d 157, 163 (5th Cir. 2007).
150
No. 97-1620, 1998 WL 419716 at * 9 (E.D. La. July 21, 1998).
149

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evidence of the objective effect of that comment on the plaintiffs work performance; and
although there was evidence that the supervisor frequently used the term “n****r,” those
other comments were not uttered in the plaintiffs presence, and there was no evidence
that they affected the plaintiff's job.151
Plaintiff also fails to demonstrate a hostile work environment based on the alleged
racially charged comments to co-workers, not made in Plaintiff’s presence, and of which
she was unaware during her employment with RCX. In Celestine v. Petroloeos de
Venezuela SA.,152 the plaintiff relied upon the racial harassment claims heard by others
to support his hostile work environment claim.153 The Fifth Circuit classified the racial
harassment heard by other employees as “hearsay; things that other employees told
him[.]”154 The Fifth Circuit upheld the district court’s dismissal of the plaintiff’s hostile work
environment claims in Celestine because, as the “[plaintiff] established no act adverse to
him [], he could not establish a hostile work environment claim.”155 Applying the standard
articulated in Celestine, it is clear that Plaintiff cannot rely on the allegedly racist
comments by Huckins towards other RCX employees, of which she has no personal
knowledge and that were not directed to or overheard by Plaintiff, to meet her hostile work
environment prima facie burden.156 Certainly, the Court in no way condones Huckins’

151

334 Fed. Appx. 666, 671 (5th Cir. 2009)
108 Fed. Appx. 180 (5th Cir. 2004).
153
Id. at 187-88.
154
Id. at 187.
155
Id. at 188. 
156
Notably, courts have routinely excluded evidence of complaints of other employees as they are irrelevant
to a plaintiff’s ability to establish her own discrimination claim, and because such evidence would result in
courts conducting “a series of mini trials.” Montgomery v. Sears Roebuck & Co., 2010 WL 2773238 at *2
(W.D. La. July 12, 2010)(“Further, allowing the jury to hear the other employees' complaints would prejudice
Sears and result in “mini-trials” on whether each complaint was valid. See Wyvill v. United Companies Life
Ins. Co., 212 F.3d 296, 303 (5th Cir. 2000))”; see also Hardy, 1998 WL 419716 at *5.
152

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alleged discriminatory conduct; however, it simply fails to satisfy the hostile work
environment standard applicable to this case.
III.

CONCLUSION
For the reasons set forth above, the Motion for Summary Judgment157 filed by

Defendants is GRANTED. Plaintiff’s case is dismissed with prejudice. The Pretrial
Conference set for October 30, 2018, and the Jury Trial set to begin on November 13,
2018 are hereby CANCELED.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 22nd day of October, 2018.

S

________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

157

Rec. Doc. No. 24.

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