Andrews v. Exxon Mobil Corporation
RULING AND ORDER granting 34 Sealed Motion for Summary Judgment. Plaintiff's claims against Defendant are DISMISSED WITH PREJUDICE. A final judgment shall issue in accordance with Federal Rule of Civil Procedure 58. Signed by Judge Brian A. Jackson on 11/17/2020. (LLH)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DWAYNE ANDREWS CIVIL ACTION
EXXONMOBIL CORPORATION NO. 18-01101-BAJ-RLB
RULING AND ORDER
Before the Court is Defendant s Motion for Summary Judgment (Doc. 34).
The motion is opposed by Plaintiff. See (Doc. 44). For the reasons stated below,
Defendant's Motion is GRANTED.
Plaintiff was employed by Defendant from May 2014 until his termination in
September 2017. (Doc. 1, Tf 5). Plaintiff, who is African American, alleges that
Defendant discriminated against him on the basis of his race, in violation of
42 U.S.C. § 2000e-2. Id. at 1[ 29. Plaintiff contends that, throughout his employment,
he was subjected to hostility by his Caucasian coworkers, which went ignored by
Defendant, while his own infractions were severely punished. (Doc. 1). He asserts
that this environment allegedly led to Plaintiffs placement on "Decision Making
Leave" ("DML )1, a kind of probation, for discriminatory reasons in order to make it
1 DML is usually the last step (before discharge) of ExxonMobil's positive performance management
system. (Doc. 34). It is generally taken as the fourth step of corrective action, although it may also be
taken as a first step if a single performance incident occurs which is serious enough to warrant such
action. (Doc 44-2, at p. 77-83). DML is the final written reminder to an employee about a critical
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easier to terminate his employment. Id.2 He additionally alleges that he was
terminated in retaliation for making reports of harassment and testifying in a
deposition for an unrelated race discrimination case brought against Defendant by
another African American coworker, in violation of 42 U.S.C. § 2000e-3. Id. at ^ 30.
In 2015 Plaintiff was placed on DML following an incident in which he "became
rather emotional and yelled" at a coworker and was sent home. Id. at ^ 15-16.
Initially, Plaintiff had been recommended for termination on account of his conduct.
The recommendation was reduced to DML status after review by a Peer Review
Board and the Plaintiff submitted a letter of apology. Id. at ^[ 21. He was also
subsequently moved to another shift. Id. at ^ 23-24.
After the move, Plaintiff claims he experienced a much better work atmosphere
and successful job performance. Id. Following the incident, Plaintiff alleges no further
hostile, negative, or discriminatory interactions. However, four months prior to his
termination, Plaintiff testified in a deposition in another lawsuit where he "honestly
described his own experience at Exxon, stating specifically that he had been treated
differently from his Caucasian coworkers." Id. at ^ 25-26. Approximately four
months after testifying, Plaintiff was terminated. Id. at 1[ 27. Defendant alleges that
Plaintiff was terminated not in retaliation for testifying but, rather, for a safety and
performance incident which occurred while he was on DML. (Doc. 13, at If 27).
performance issue. The D1VIL remains active for 24 months. If the employee corrects the performance
issue, the DML and any associated reminders are deactivated, and the employee starts with a clean
slate. If, however, the employee experiences additional performance issues, the employee will be
progressed to the Peer Review Board Evaluation step and potentially terminated. Id.
2 See also Doc. 44 at p. 9. (Andrews asserts only one (1) claim of discrimination: that he was placed
on DML for discriminatory reasons, which led to (was the legal cause of) his termination.")
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Plaintiff filed his EEOC charge on October 28, 2017. (Doc. 34-2 at p. 12).
Now, Defendant moves for summary judgment, alleging that Plaintiffs
discrimination claim is time-barred and that his termination was based on a
legitimate, nonretaliatory reason.
II. LEGAL STANDARD
Summary judgment is proper if Defendant shows that there is no genuine
dispute as to Plaintiffs claims for economic damages by application of the doctrine of
judicial estoppel, and that it is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). In deciding whether Defendant has made such showing, the Court views
facts and draws reasonable inferences in Plaintiffs favor. Midwest Feeders, Inc. v.
Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).
a. Whether Plaintiffs Discrimination Claim is Time-Barred
Title VII prohibits discrimination by employers "against any
individual. . . because of such individual s race, color, religion, sex, or national origin."
42 U.S.C. § 2000e-2(a). To establish a case for race discrimination under Title VII, a
plaintiff must show that (1) he is a member of a protected class, (2) he was qualified
for his position, (3) he was subjected to an adverse employment action, and (4) he was
replaced by someone outside the protected class or was treated less favorably than
other similarly situated employees outside the protected group. McCoy u. City of
Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).
Once a plaintiff establishes a prima facie case under these factors, the burden
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shifts to the defendant to provide a non-discriminatory reason for the adverse
employment action. Id. at 557. After a satisfactory non-discriminatory reason is
offered, the burden shifts once more to the plaintiff to demonstrate that the
defendant s proffered reason is a mere pretext for racial animus. Id.
In addition, to recover for a discriminatory act under Title VII, a plaintiff must
file an EEOC charge about the related act within the statutory period.3 Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). Defendant argues that most of
the encounters with coworkers that Plaintiff relies on to establish a prima facie case
of discrimination are time-barred and therefore must be dismissed as a matter of law.
)oc. 34-1, at p. 16).
Plaintiff filed his EEOC charge on October 28, 2017 (Doc. 34-2, at p. 12;
Doc. 34-3, at p. 436). Three hundred days preceding that date is January 1, 2017. As
such, Plaintiff cannot sue for any acts of discrimination that occurred prior to 2017.
See 42 U.S.C. § 2000e-5(e)(l). The Court has been clear that "discrete discriminatory
acts are not actionable if time-barred, even when they are related to acts alleged in
timely filed charges." Morgan, 536 U.S. at 113. However, the prior acts may be used
"as background evidence in support of a timely claim." Id.
A limited exception to the 300-day rule occurs where Plaintiff alleges a hostile
work environment. The Court has held that a hostile work environment claim is a
series of separate acts which comprise a single "hostile employment practice" for the
3 In Louisiana, a Title VII plaintiff must file an EEOC charge within 300 days of the alleged
unlawful employment practice. See 42 U.S.G. § 2000e"5(e)(l); Price v. Choctaw Glove & Safety Co.,
459 F.3d 595, 598 n.7 (5th Gir. 2006).
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purposes of filing a timely EEOC charge under 42 U.S.C. § 2000e-5(e)(l). Id. at 117.
Where a hostile work environment claim is asserted. Plaintiff may reach beyond the
statutory limitation to establish repeating conduct, so long as at least one act
contributing to the claim occurs within the filing period. See Id.; Heath v. Bd. of
Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 737 (5th Cir. 2017), as
revised (Mar. 13, 2017).
Under the continuing violations doctrine, a plaintiff can sue for otherwise time"
barred acts of discrimination if the plaintiff can show "that the discrimination
manifested itself over time, rather than in a series of discrete acts." Frank v. Xerox
Corp., 347 F.3d 130, 136 (5th Cir. 2003). The continuing violations doctrine is limited
in three ways: (1) the plaintiff must demonstrate that the separate acts are related;
(2) the violation must be continuing; intervening action by the employer, among other
things, will sever the acts that preceded it from those subsequent to it; and (3) the
doctrine may be tempered by the court s equitable powers, which must be exercised
to 'honor Title VII s remedial purpose without negating the particular purpose of the
filing requirement/" Heath, 850 F.3d, at 738.
Despite the fact that Plaintiffs Complaint and Memorandum in Opposition to
Defendant s Motion for Summary Judgment (Opposition ) outline numerous events
occurring throughout Plaintiffs employment that Plaintiff speculates were racially
motivated, Plaintiff explicitly states that he only asserts one (1) claim of
discrimination and that claim is that he was put on DML in 2015 "for discriminatory
reasons, which led to. . . his termination." (Doc. 44, at p. 9). Plaintiff also stated that
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he has not asserted claims for. . . 'Harassment/Hostile Work Environment/" and
therefore, to the extent that the [CJomplaint is found to set forth [a] separate claimQ
for hostile work environment. . . Plaintiff hereby withdraws [it]." (Doc. 44, at p. 20).
Because Plaintiff has expressly withdrawn the claims which would require the
continuing violations doctrine, the Court will not examine those claims. Smith u. U.S.,
328 F.3d 760, 770 ("A party's concession of an issue means the issue is waived and
may not be reviewed. ). As such, Plaintiffs discrimination claim is time-barred. The
allegedly discriminatory act or acts, whether described as Plaintiff being placed on
DML in 2015 or the processes which led to the DML determination, all fall outside
the statutory period. Although Plaintiff argues that had he not been placed on DML
in 2015, he would not have been terminated in 2017—an act which is not time"
barred—the Supreme Court has been clear that an unlawful "practice" occurs on the
day that an action happens, regardless of whether the action has further connection
to other acts. See Morgan 536 U.S. at 111. If Plaintiff is not pursuing a hostile work
environment claim, then all acts occurring before January 1, 2017 may only be used
as "background evidence in support of a timely claim" because they are outside the
statutory limit. Id. at 113.
Even when used as background evidence, Defendant satisfies its burden of
demonstrating a non" discriminatory motive for both the DML determination and
Plaintiffs later termination. As discussed supra, Plaintiff was placed on DML status
after losing his temper at work and yelling at a coworker. Plaintiff acknowledged that
his behavior was totally unacceptable," (Andrews Deposition at p. 228), but argued
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that his reaction was a response to experiencing negative treatment from coworkers.
He also argued that he did nothing that no one else hadn't done to [him]" and
asserted that he disagreed with the consistency of the discipline." Id. at 229.
However, in his deposition he did not attribute such treatment to racial animus.
In addition, while it is true that had Plaintiff not been placed on DML status
he likely would not have been terminated, there is no evidence that the DML status
was used to make it easier to terminate Plaintiff because of his race. Even before he
was placed on DML status, Plaintiff had a history of performance deficiencies.4 Prior
to the terminating offense, Plaintiff had committed a separate safety error while on
DML, which he admitted was his fault. (Andrews Deposition, at p. 181). This incident,
which occurred in August 2016, was reviewed closely due to Plaintiffs DML status,
but Plaintiff was ultimately provided one additional opportunity to improve his work
performance rather than be terminated. Id. at 185-187. He was also informed that
his failure to maintain good performance or behavior within the DML period would
result in discharge. Id. at 186.
Despite the warning, Plaintiff committed another safety infraction in
August 2017 and was terminated. The incident was a lookout tagout ("LOTO")
incident. LOTO, according to Plaintiff, is designed to "isolate energy from individuals,
4 Defendant alleges that Plaintiff had difficulty with his work performance prior to the DML
decision. His supervisor completed performance and analysis reviews of Plaintiff in February 2015
and June 2015, where Plaintiff was marked as "needs improvement in multiple categories. He was
counseled following a safety incident in March 2015 and given an oral reminder about his
performance in June 2015. Plaintiff was involved in other incidents where he failed to properly
complete his work in April 2015 and June 2015 but was not counseled following these incidents. As a
result of his work performance, Ms supervisor made the decision not to promote him to the next post
and twice did not progress Plaintiffs pay with the other operators with which he was hired. See
Doc. 34-9, HUton Declaration , at ^ 7—15. Plaintiff does not deny these allegations.
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people, or the environment, that could result in injury or worse." (Andrews
Deposition, p. 79). Plaintiff had been involved in similar incidents before. See note 4.
Plaintiff relieved a coworker from his shift. According to Plaintiff, the coworker
should have flipped a switch on a valve to the "engaged" position but did not do so.
(Doc. 40-1, at p. 3). Plaintiff was required to flip the switch back to the "disengaged"
position but admits that he did not double-check his coworker's work. Id. Therefore,
when Plaintiff flipped the switch, the switch was placed into the incorrect position.
Id. Defendant alleges that Plaintiff was terminated because of this second safety
infraction while on DML status. These facts do not demonstrate a pattern of
continuing racial discrimination by Defendant but, rather, support Defendant's
assertion that Plaintiffs termination was based on a non-discriminatory motive.
b. Retaliation Claim
Title VII s anti-retaliation provision forbids an employer from taking adverse
employment action against an employee because the employee opposed practices
made unlawful by Title VII. See 42 U.S.C. § 2000e-3(a). To plead a claim under this
provision, an employee must allege that (1) he engaged in activity protected by Title
VII; (2) the employer took "materially adverse employment action" against him; and
(3) a causal connection between the protected activity and the adverse employment
action. See Fisher v. LufJzin Indus., Inc., 847 F.3d 752, 757 (5th Cii\ 2017). The same
burden-shifting analysis applies in a retaliation claim. McCoy, 492 F.3d, at 557.
Plaintiff argues that the protected activity lie engaged in was the act of
testifying in a deposition in a race discrimination case and his termination was the
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adverse employment action" taken by Defendant. (Doc. 44, at p. 6).5 To satisfy the
third element of the analysis, Plaintiff argues that terminating him a mere four
months after participating in a protected activity is sufficient to establish the
required causal connection for the purposes of establishing a prima facie case.
Id. at 7. Defendant objects, citing to a decision from the United States Court of
Appeals for the Fifth Circuit finding that a five-month interval between a protected
activity and an adverse employment consequence is too long to sustain a prima facie
claim of causation based solely on temporal proximity. Ganheart v. Brown,
740 F. App'x 386, 391 (5th Cir. 2018).
The Court need not decide whether four months is sufficiently close to establish
causation, because, like his race discrimination claim. Plaintiffs retaliation claim
must fail under the burden-shifting analysis. Defendants non-discriminatory
justification that it fired Plaintiff after he committed two safety errors while still on
probationary status satisfies its burden of providing a non-discriminatory reason for
In his Opposition, Plaintiff disputes the purportedly non" discriminatory
explanation by shifting the blame for his mistake in the second incident to another
employee. He argues that his only mistake was that he failed to double-check the
other employee's work. (Doc. 44, at p. 8). The simple fact that he was on DML and
had already committed a previous safety violation does not, according to Plaintiff,
5 Retaliation against an employee for testifying in an investigation, proceeding, or hearing is expressly
prohibited by statute. See 42 U.S.C. § 2000e-3.
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account for the vast discrepancy between his treatment and that of his coworker.
Id. at 9. He supports this assertion with a conclusory statement that his coworker
was not disciplined at all, while he was terminated. M at 8-9. According to the
Defendant, while tlie coworker was not disciplined, he was in fact counseled following
the incident and denied making any error. (Doc. 34-4, at p. 21-22). Regardless of
whether the coworker was correct or not, it was the Plaintiff who committed a safety
violation by either not checking the previous employee's work or by mistakenly
engaging the switch in the wrong direction. Id. Further, the fact that Plaintiff was on
DML status and the coworker was not is an important distinction. Because of his
DML status, Plaintiff, as was previously discussed, was already on notice that he
would be terminated if any further infractions occurred.
During the pretext stage of analysis, the Court does not determine whether an
employer s nondiscriminatory reasoning was fair, but whether it was the real reason
for a plaintiffs termination. See Harville v. City of Houston, Mississippi,
945F.3d870, 879 (5th Gir. 2019) (citing Sandstad v. CB Richard Ellis, Inc.,
309 F.3d 893, 899 (5th Ch\ 2002)). Merely disagreeing with Defendant's assessment
of his conduct or punishment does not rise to a Title VII violation. Jones v. Overnite
Transp. Co., 212 F. App'x 268, 275 (5th Cir. 2006) (per curiam) ("Title VII does not
protect an employee against unfair employment decisions; instead, it protects against
employment decisions based upon discriminatory animus. ). Plaintiff has offered no
evidence that Plaintiffs safety infraction was not the real reason for his termination.
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IT IS ORDERED that Defendant's Motion for Summary Judgment
(Doc. 34) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs claims against Defendant are
DISMISSED WITH PREJUDICE.
A final judgment shall issue in accordance with Federal Rule of Civil Procedure
Baton Rouge, Louisiana, this _!_/_^ay of November, 2020
JUDGE BRIA^LA. JACKSON
UNITED STATES'DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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