Lemonia v. Westlake Management Services Inc

Filing 36

MEMORANDUM RULING re 17 MOTION for Summary Judgment filed by Westlake Management Services Inc. Signed by Judge James D Cain, Jr on 9/19/2022. (crt,Benoit, T)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
GLENN M LEMONIA

CASE NO. 2:20-CV-01593

VERSUS

JUDGE JAMES D. CAIN, JR.

WESTLAKE MANAGEMENT SERVICES MAGISTRATE JUDGE KAY
INC
MEMORANDUM RULING
Before the court is a Motion for Summary Judgment [doc. 17] filed by defendant
Westlake Management Services, Inc. (“Westlake”) in response to the employment
discrimination suit brought under the Age Discrimination in Employment Act, Title VII of
the Civil Rights Act, and 42 U.S.C. § 1981 by plaintiff Glenn Lemonia. Plaintiff opposes
the motion. Doc. 29.
I.

BACKGROUND
This suit arises from plaintiff’s employment at Westlake, a chemical plant located
in Calcasieu Parish, Louisiana. Doc. 1. Plaintiff, an African-American man, began his
employment as an electrician in 1989 at the facility known as “Westlake South,” under the
management of Westlake’s predecessor PPG. Id. at ¶ 11. Plaintiff’s employment was
subject to a collective bargaining agreement (“CBA”) and plaintiff was a member of the
union-represented bargaining unit. Doc. 17, att. 3, ¶¶ 3 & 4. Westlake acquired the
Westlake South site in 2016, and plaintiff continued working there. Id. at ¶¶ 4–5.

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In March 2017, electrical maintenance superintendent Leon Campbell moved
plaintiff and other electricians to Plant B. Doc. 17, att. 4, ¶¶ 2–3. The union grieved the
move, alleging that only African-American electricians were moved. Id. After an
investigation, the company determined that Caucasian employees were also moved and
denied the grievance. Id. Plaintiff then filed a charge of discrimination with the EEOC,
which dismissed the charge and issued a notice of suit rights on May 25, 2017. Doc. 17,
att. 1, pp. 96–97. Plaintiff did not file a suit after this dismissal. Id. at 78–79.
In 2018, Westlake instrumentation, electrical, and controls manager Bryan
Thompson initiated a site reorganization with the assistance of electrical maintenance
superintendent Leon Campbell that resulted in the addition of three new electrical
maintenance supervisor positions. Doc. 29, att. 3, pp. 15, 18; 22–26. All three supervisor
positions reported directly to Campbell, who in turn reported to Thompson. Id. at 18–19;
doc. 29, att. 4, p. 28. Both Thompson and Campbell are white. Doc. 17, att. 2, ¶ 1; doc. 29,
att. 2, p. 54.
Plaintiff applied for the position and emailed Campbell in August 2018 to express
his interest. Doc. 17, att. 1, pp. 84, 98. In September, before interviews, plaintiff
complained to Campbell about new chairs in the Plant B breakroom. Doc. 17, att. 2, ¶ 3.
He then renewed his complaint about the chairs to Thompson, and further complained to
Thompson that Campbell had screamed and cursed at him when he raised the issue. Id.
Thompson told plaintiff he would look into the situation and that he could always bring
discrimination or safety-related concerns to him, but suggested that he try to resolve more
minor issues directly with his supervisor. Id. To illustrate his point, he recalled an incident
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where plaintiff had complained about not receiving an appreciation meal after a successful
turnaround. Id. Thompson then met with Campbell, who denied cursing or yelling at
plaintiff but said he was open to talking with plaintiff about his concerns. Id. at ¶ 4.
Thompson met with plaintiff again and reported Campbell’s response. Id. at ¶ 5. He also
offered to let plaintiff keep his old chair. Id. Thompson recalled that he tried to coach
plaintiff on “how to effectively elevate issues,” but that plaintiff said he was going to talk
to human resources about his concerns about what Thompson had said. Id.
After this conversation plaintiff filed an internal complaint against Campbell and
Thompson, alleging that they had engaged in threatening and harassing verbal conduct.
Doc. 1, ¶ 15. Plaintiff then interviewed for the supervisor position on October 4, 2018, with
a team including Campbell, Thompson, two human resources representatives, and two
other superintendents in similar positions to Campbell. Doc. 17, att. 2, ¶ 6. At the time
plaintiff was sixty-one years old. Doc. 29, p. 18; see, e.g., doc. 29, att. 10, p. 1.
The team concluded that plaintiff had not interviewed well, with team members
recalling that plaintiff provided vague and non-specific answers, offered limited details,
and failed to show leadership through the examples he chose. Doc. 17, att. 2, ¶¶ 6–7; see
doc. 17, atts. 6–11 (declarations of other interview team members). Thompson testified that
the interviewers used the “Interview Guide for General Professionals” in their interviews
for the electrical maintenance supervisor position. Doc. 29, att. 3, pp. 38–39. The guides
from plaintiff’s interview were produced in discovery and show notes by the respective
interviewers along with individual ratings between 2 and 3 out of 10 in the relevant
domains. Doc. 29, att. 25. The scoring sheets support the interviewers’ declarations, with
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interviewers’ notes indicating that plaintiff’s examples were too general and that he failed
to explain them. Id. at 8–9, 20–21, 32–33, 44, 47, 56, 68. Plaintiff was not offered the
promotion and only one of the three positions was filled by an internal candidate—Chris
Bellon, a 34-year-old white male. Doc. 17, att. 2, ¶¶ 7–8. The other two positions were
offered to external applicants John Frank (African-American, 47 years old) and Josh
Vernier (white, 39 years old). Id. at ¶ 9. Frank turned down the position and it was instead
filled by Joseph Holcombe (white, 32 years old). 1 Id.
On November 14, 2018, Campbell assigned plaintiff and one other electrician to a
temporary move to Plant C to assist with a significant unplanned outage. Doc. 17, att. 4, ¶¶
6, 9; doc. 17, att. 2, ¶ 11. Plaintiff complained to human resources regarding the move and
then took vacation from November 27 through December 3, 2018. Doc. 17, att. 4, ¶ 6; doc.
17, att. 1, pp. 103–05. On the day of his return, December 4, HR manager Barbara Downer
met with plaintiff regarding his complaints about supervisors and the transfer. Doc. 17, att.
3, ¶ 12. According to Downer’s affidavit, she shared that the company takes complaints
very seriously and that his had been investigated, leading to opportunities to coach his
supervisors. Id. Concerning the transfer to Plant C, however, she stated that the company
had the right to move its workforce in response to business needs. Id.
Later that day, plaintiff alleged that he was unraveling a solder wire at his work
station when he noticed that someone had tied a “noose” at the end of it. Doc. 1, ¶ 20. In

Plaintiff asserts that Westlake only offered the position to Frank, knowing he had already accepted another position
and would not take it. Doc. 29, pp. 19–20. While Frank’s application record shows that he had accepted another job,
there is nothing to support plaintiff’s contention that Westlake knew of this fact when it made the offer. See doc. 29,
att. 6, pp. 62–65.

1

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response the union president and two security officials came to document the event and
take the noose to human resources. Id. After meeting with different Westlake officials over
the next several days, who assured him they were investigating the incident, plaintiff filed
a complaint with the Calcasieu Parish Sheriff’s Office on December 12, 2018. Id. at ¶¶ 21–
24. On December 14, 2018, plaintiff filed a grievance through the union relating to his
temporary transfer to Plant C. Doc. 17, att. 3, ¶ 13. The company determined that the
transfer was legitimate and likewise moot because plaintiff had already returned to his
regular assignment. Id.; doc. 17, att. 4, ¶ 9. The union then withdrew the grievance. Doc.
17, att. 3, ¶ 13.
Meanwhile, Westlake human resources staff investigated the noose incident through
December 2018 and January 2019. Managers Barbara Downer and Melissa Padgett
interviewed everyone with access to the work area but were unable to find anyone who
noticed something new or noteworthy. Doc. 17, att. 3, ¶ 14; doc. 17, att. 4, ¶ 10. Human
resources director John Boulanger, who was based out of Houston, also kept in touch with
plaintiff about the status of the investigation via phone. Doc. 17, att. 5, ¶¶ 2–3. At the
conclusion of the investigation he traveled to plaintiff’s work site and met with him,
recalling the meeting as follows:
When Lemonia and I met on January 29, 2019, Lemonia thanked me
for meeting with him. I noted that a majority of Lemonia’s concerns could
and should be handled through the CBA’s grievance process. I also
specifically addressed the Company’s position in regarding Lemonia’s 2018
application for a supervisor position. Regarding the spool of wire, I told
Lemonia that based on my own prior experience, the end of the spool of wire
appeared to me how I would have safely secured the end of the wire.
Nevertheless, I told Lemonia that the Company thoroughly investigated the
issue, Westlake was unable to identify the person who left the spool on
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Lemonia’s workstation, and was concluding the matter. I also confirmed with
Lemonia that no other incidents had occurred, and Lemonia verified that fact.
I also told Lemonia that Lemonia could call me on my cell if Lemonia had
any new information to share.
Id. at ¶ 6.
Around the same time, Thompson began preparing for annual reviews of the
employees in his unit. He instructed Campbell to seek input from the internal constituents
who worked directly with those employees in order to get feedback on their performance.
Doc. 17, att. 2, ¶ 12. Regarding plaintiff, Campbell reportedly received “quite a bit of
negative feedback” including complaints about the amount of time he took to complete
work, his unwillingness to assist others, his unnecessary escalation of issues to the
company’s safety department and stopped jobs for issues he could have safely resolved
himself, his failure to complete tasks, and his habit of spending too much time visiting with
others. Id. Based on this feedback, plaintiff received an “unsatisfactory” overall evaluation
for 2018 and was placed on an improvement plan at a meeting in February 2019. 2 Id. at ¶
13; doc. 17, att. 1, p. 171. Plaintiff and the union filed a grievance over the review, but the
union withdrew the grievance in May 2019. Doc. 17, att. 1, pp. 170–71; doc. 17, att. 3, ¶
15. Plaintiff then filed a charge of discrimination with the EEOC in June 2019, complaining
of retaliation as well as discrimination based on his race and age. Doc. 29, att. 70.
Campbell passed away in July 2019, and Keith Willis took over as superintendent.
During plaintiff’s next improvement plan meeting, on July 25, 2019, Willis told him not to

Plaintiff has produced performance reviews from 2015–2017 and 2008–10 showing that he received mostly
satisfactory, and a few commendable, ratings in those years. Doc. 29, att. 49.

2

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talk to anyone about anything except work unless he was on a break or lunch period. Doc.
29, att. 2, pp. 209–10. After this meeting plaintiff began to feel dizzy and went to the onsite
medical building. Id. at 211–12. Based on this incident he was later diagnosed with
situational anxiety and a panic attack. Doc. 29, att. 57. From that time until October 29, he
went on an extended paid medical leave. Doc. 17, att. 3, ¶ 17; doc. 29, att. 2, p. 213.
After his return plaintiff was required to complete certain computer-based training
modules (“CBTs”), including ones regarding an updated code of conduct. Doc. 17, att. 3,
¶ 22. He met with Barbara Downer on November 15, 2019, and raised issues with respect
to the code of conduct and other training areas reflected in the CBTs. Id. at ¶ 23. Plaintiff
signed the code of conduct acknowledgment “under duress.” Doc. 29, att. 2, p. 219. He
then returned to medical leave on November 18, 2019, and Westlake approved his requests
to continue that leave through January 2021. Doc. 17, att. 3, ¶ 24. Plaintiff remained out
on medical leave until he resigned from Westlake in November 2020 and began receiving
retirement benefits. Doc. 29, att. 2, p. 301.
The EEOC dismissed plaintiff’s 2019 charge and issued a notice of suit rights on
September 9, 2020. Doc. 1, att. 1. Plaintiff then filed suit in this court on December 8, 2020,
raising claims of discrimination and retaliation under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-2 et seq.; the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 621 et seq.; and 42 U.S.C. § 1981. Specifically, he alleges that Westlake
violated these laws by (1) subjecting him to a hostile work environment due to his race, (2)
failing to promote him to supervisor based on both his race and age; and (3) failing to
promote him and otherwise retaliating against him because of his prior complaints. Doc. 1.
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Westlake now moves for summary judgment, asserting that plaintiff cannot make out a
prima facie case on any of his claims.
II.
SUMMARY JUDGMENT STANDARD
Under Rule 56(a), “[t]he court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” The moving party is initially responsible for identifying
portions of pleadings and discovery that show the lack of a genuine issue of material fact.
Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). He may meet his burden by
pointing out “the absence of evidence supporting the nonmoving party’s case.” Malacara
v. Garber, 353 F.3d 393, 404 (5th Cir. 2003). The non-moving party is then required to go
beyond the pleadings and show that there is a genuine issue of material fact for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To this end he must submit
“significant probative evidence” in support of his claim. State Farm Life Ins. Co. v.
Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at
249 (citations omitted).
A court may not make credibility determinations or weigh the evidence in ruling on
a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). The court is also required to view all evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in that party’s favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material

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fact exists if a reasonable trier of fact could render a verdict for the nonmoving party.
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
III.
LAW & APPLICATION
A. Hostile Work Environment
Plaintiff has alleged that he was exposed to a hostile work environment on account
of his race, in violation of Title VII of the Civil Rights Act and 42 U.S.C. § 1981. 3 To
establish a prima facie case of a hostile work environment, a plaintiff must show the
following: (1) he belongs to a protected group, (2) he was subject to unwelcome
harassment, (3) the complained-of harassment was due to his membership in a protected
group (e.g., due to his race), (4) the harassment complained of affected a term, condition,
or privilege of his employment, and (5) the employer knew or should have known of the
harassment but failed to take prompt remedial action. Mendoza v. Helicopter, 548 F. App’x
127, 128–29 (5th Cir. 2013) (citing Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.
2002)).
Plaintiff’s hostile work environment claim centers on the noose incident. 4 Westlake
moves for summary judgment based on his inability to meet his burden on the fourth or

Claims of race discrimination and retaliation under 42 U.S.C. § 1981, which protects the right to make and enforce
contracts, are analyzed under the same standards as those raised under Title VII of the Civil Rights Act. Johnson v.
Halstead, 916 F.3d 410, 420 (5th Cir. 2019).
4
In the complaint plaintiff alleges that the harassment consisted of both the failure to promote as well as the noose
incident. Doc. 1, ¶ 48. As Westlake notes, however, failure to promote already serves as the basis for his other
ADEA/Title VII claims. Other federal courts have observed that “allowing standard disparate treatment claims to be
converted into a contemporaneous hostile work environment claim” poses apparent danger, including “significantly
blur[ring] the distinctions between both the elements that underpin each cause of action and the kinds of harm each
cause of action was designed to address.” Robinson v. Paulson, 2008 WL 4692392, at *20 (S.D. Tex. Oct. 22, 2008)
(quoting Parker v. State, Dep’t of Pub. Safety, 11 F.Supp.2d 467, 475 (D. Del. 1998)). The undersigned agrees, and
at any rate plaintiff only defends the claim in his opposition based on the noose incident.
3

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fifth elements. On the severity element, an employer violates Title VII “[w]hen the
workplace is permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim's employment and
create an abusive working environment.” Harris v. Forklift Sys., 510 U.S. 17, 21 (1993).
Because Title VII is “only meant to bar conduct that is so severe [or] pervasive that it
destroys a protected class member’s opportunity to succeed in the workplace,” courts have
set a high standard for determining what constitutes a hostile work environment. Lewis v.
M7 Prods., LLC, 427 F.Supp.3d 705, 720 (M.D. La. 2019) (internal quotation omitted).
The conduct must be both subjectively and objectively offensive, meaning that the victim
perceived the environment as hostile or abusive and that a reasonable person would do
likewise. E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393, 399 (5th Cir. 2007). Courts
examine such a claim based on the totality of the circumstances, looking to the frequency
and severity of the conduct, whether it was physically threatening or humiliating, and
whether it “unreasonably [interfered] with an employee’s work performance.” Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 347 (5th Cir. 2007). “No single factor is
determinative.” WC&M Enters., Inc., 496 F.3d at 399. “[I]solated incidents, if egregious,
can alter the terms and conditions of employment.” Harvill v. Westward Comms., LLC, 433
F.3d 428, 434 (5th Cir. 2005) (emphasis added).
“District courts in the Fifth Circuit, while treating a noose in the workplace as a
severe and troubling matter, have found that a single, isolated incident is not severe or
pervasive enough to alter the conditions of employment and thereby create a working
environment so abusive that an actionable hostile work environment claim can be found
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under Title VII.” Morris v. Pellerin Milnor Corp., 2018 WL 1726257, at *9 (E.D. La. Apr.
10, 2018); accord Davis v. Ochsner Med. Ctr., 2016 WL 1383638, at *3–*4 (E.D. La. Apr.
7, 2016); see also Brooks v. Firestone Polymers, LLC, 70 F.Supp.3d 816, 821 (E.D. Tex.
2014) (collecting cases); cf. Berry v. Texas Women’s Univ., 528 F.Supp.3d 579, 610 (E.D.
Tex. 2021) (distinguishing a case where noose remained on display and plaintiff’s
supervisor joked about it). While other cases have also emphasized the plaintiff’s failure
to complain, “the single appearance of what appeared to plaintiff to be a noose . . . without
any previous or subsequent instances of overtly racial harassment or discrimination, falls
far short of establishing an actionable hostile work environment claim[.]” Morris, 2018
WL 1726257 at *10. Accordingly, plaintiff cannot meet the fourth element of his claim
and Westlake is entitled to summary judgment.
B. Failure to Promote – Discrimination
Plaintiff next claims that Westlake violated Title VII, the ADEA, and 42 U.S.C. §
1981 by failing to promote him to supervisor in 2018. As noted supra, note 1, plaintiff’s §
1981 claims are analyzed under the same standard as his Title VII claims. His Title VII and
ADEA discrimination claims are likewise analyzed under the same standards. E.g., Kebiro
v. Wal-Mart Stores, Inc., 568 F.Supp.2d 747, 752 (E.D. Tex. 2005).
To establish a prima facie case of discrimination based on a failure to promote, a
plaintiff must show that (1) he is a member of a protected class; (2) he was qualified for
the promotion sought; (3) he did not receive the promotion; and (4) his employer either left
the position open or filled it with a person outside plaintiff’s protected class(es). Kebiro,
568 F.Supp.2d at 753 (citing Medina v. Ramsey Steel Co., 238 F.3d 674, 680–81 (5th Cir.
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2001)). If the plaintiff succeeds, the burden shifts to the employer to articulate a legitimate,
non-discriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. The
employer’s burden is one of production rather than persuasion and does not involve a
credibility assessment. Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2011). If it
meets this requirement, the burden shifts back to the plaintiff to show that either (1) the
employer’s proffered explanation is not true and is instead a pretext for discrimination or
(2) the employer’s reason, while true, is not the only reason for its action and another
“motivating factor” is plaintiff’s protected characteristic. Id. Accordingly, the plaintiff
bears the ultimate burden of persuading the trier of fact that he was the victim of illegal
discrimination. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001).
Westlake moves for summary judgment on the grounds that (1) plaintiff cannot
prove his prima facie case because one of the supervisor positions was offered to someone
in both of his protected classes; (2) Westlake had a legitimate, non-discriminatory reason
for its actions based on plaintiff’s interview performance and plaintiff cannot show pretext;
and (3) plaintiff’s § 1981 claim is time-barred.
On the first basis, Westlake has shown that one of the three supervisor positions was
offered to John Frank, a 47-year-old African-American man. By its terms, the ADEA
applies only to “individuals of at least 40 years of age.” 28 U.S.C. § 631. Accordingly,
Westlake maintains that plaintiff cannot meet the third element of his prima facie case. But
McDonnell Douglas only requires that the position be filled by someone from outside the
protected class(es). Westlake fails to point to any case law showing that this element is
defeated if the position is offered to, but not accepted by, someone within the protected
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class(es). Instead, this evidence should be considered in determining whether plaintiff can
establish pretext.
On the second basis, Westlake relies on plaintiff’s scoring by the interview
committee. “An employer’s subjective reasons for not [promoting] a candidate, such as a
subjective assessment of the candidate’s performance in an interview, may serve as a
legitimate, non-discriminatory reason for the candidate’s non-selection” as long as the
employer “articulates a clear and reasonably specific basis for its subjective assessment.”
Alvarado v. Tex. Rangers, 492 F.3d 605, 616 (5th Cir. 2007). Accordingly, the Fifth Circuit
has found that the employer’s burden is not met when it fails to provide some indication of
the factual basis or specific reasons behind plaintiff’s interview score. Joseph v. City of
Dallas, 277 F. App’x 436, 440 (5th Cir. 2008) (citing Alvarado, 492 F.3d at 616)).
The Fifth Circuit found that an employer had not met its burden in Alvarado, when
it provided the scores from plaintiff’s interview but “offered neither an explanation nor
evidence of how or why the interviewers arrived at those scores” or why other candidates
were rated higher than plaintiff. Id. at 616. However, the same court rejected an argument
that defendant did not supply a sufficiently specific reason in Joseph, supra, 277 F. App’x
at 441. In the latter case, defendant provided interview forms and affidavits explaining
plaintiff’s low scores and the court distinguished the matter from cases Alvarado, “where
the defendant relies on nothing more than an unexplained interview score that might be
consistent with discriminatory intent.” Id.
Here Westlake has provided interview guides and score sheets containing notes on
plaintiff’s specific low rankings. It has also provided declarations from the interviewers,
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some of whom recall particular reasons for their low ratings and all of whom recall negative
impressions of plaintiff during his interview. The fact that Westlake has not provided score
sheets from other interviewees will not prevent it from meeting its burden; as in Joseph
and other cases, evidence of the interviewers’ negative impressions as to this applicant are
enough. See also Hollaway v. Woodlet, 203 F. App’x 563, 566 (5th Cir. 2006) (defendant
met its burden with testimony from interviewers on plaintiff’s demeanor during interview);
Todd v. Natchez-Adams Sch. Dist., 160 F. App’x 377, 379 (5th Cir. 2005) (defendant met
its burden through testimony from interviewers that plaintiff did not answer questions
precisely and score sheets with comments showing her answers were too lengthy).
Westlake has thus met its burden of production by producing depositions from the
interview team members, who recall that plaintiff provided vague and non-specific
answers, offered limited details, and failed to show leadership through the examples he
chose, and interview score sheets with low scores and notes explaining same. Accordingly,
the burden shifts to plaintiff to show pretext.
In order to demonstrate pretext, the plaintiff must demonstrate that discrimination
“lay at the heart of the employer’s decision.” Price v. FedEx Corp., 283 F.3d 715, 720 (5th
Cir. 2002). This showing may take multiple forms, including offering evidence from which
a reasonable factfinder could conclude that the employer’s justification is false. Pratt v.
City of Houston, Tex., 247 F.3d 601, 606–07 (5th Cir. 2001). While a plaintiff may
sometimes prevail with a prima facie case and sufficient evidence to reject the employer’s
explanation, the employer is still entitled to summary judgment if the plaintiff can create
only a weak issue of fact as to whether the employer’s explanation is true and there is
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“abundant and uncontroverted independent evidence that no discrimination occurred.” Id.
Accordingly, whether summary judgment is appropriate “depends on a variety of factors,
including ‘the strength of the prima facie case, the probative value of the proof that the
employer’s explanation is false and any other evidence that supports the employer’s case
and may properly be considered.’” Id. (quoting Reeves, 530 U.S. at 148–49).
Plaintiff notes his testimony of his own belief that the interview went well. 5 Doc.
29, att. 2, pp. 95–96. This subjective and self-serving testimony is irrelevant in light of
evidence showing that the interview was poorly rated and made an unfavorable impression
on the panel members who could recall it. Plaintiff also points to testimony that the panel
members sometimes only rated candidates after a roundtable discussion. E.g., doc. 29, att.
3, p. 69; doc. 29, att. 4, pp. 27–44. Accordingly, he alleges that the interview ratings were
tainted by statements and opinions from other members of the panel. Given the lack of any
evidence of discriminatory intent by other panel members, however, this is insufficient to
show bias on the part of the committee.
Finally, plaintiff points out that the panel interviewed three internal candidates for
the position—himself, Herb Stephens (also African-American), and Chris Bellon (white).
Doc. 29, att. 3, pp. 38–39. Thompson acknowledged that the facility had an informal
preference for internal candidates. Id. at 38. However, only Bellon was offered one of the
supervisor positions. Id. at 41. Thompson did not appear to recall any specifics about
Stephens’s interview, but stated:

He also points to Thompson’s testimony recalling his and Campbell’s negative impressions of plaintiff. Doc. 29, att.
3, pp. 121, 128. This testimony, however, does not show any animus based on race or age.

5

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We went through the interview process. We asked questions on the
interview guide and we evaluated the answers and the responses, and based
on those responses and the ratings that we gave, we were in agreement that—
that he was not someone we wanted to make an offer to.
Id. at 42. He admitted, however, that both Stephens and plaintiff met the “bare minimum
qualifications to be considered for the post.” Id. at 72. The interview guide/score sheet for
Stephens was never produced, despite testimony from HR associate Kysha Martin that the
guides are typically stored in an on-site filing cabinet by the HR representative present
during the interview. Doc. 29, att. 6, p. 31. However, plaintiff has not brought a spoliation
claim relating to these interview guides and fails to even show that he previously requested
them. He has also failed to produce any other evidence of Stephens’s training or
experience. Meanwhile, plaintiff admitted that Bellon had received more on-the-job
training for the supervisor position than he (plaintiff) had by virtue of his experience as a
leadman. Doc. 29, att. 2, pp. 98–99, 189–90. He also admitted that he had had the
opportunity to earn this same experience. Id. at 207–08.
Plaintiff has failed to show that the interview process and the ratings of the members
were tainted by any discriminatory animus, or to rebut the objective evidence that he did
not interview well. He has also admitted that, despite the company’s informal preference
for promoting internal candidates, the white internal candidate who was selected had more
experience for the position. As noted above, one of the external candidates who was offered
the position was African-American. Plaintiff has not shown that any of the external
candidates was less qualified than he was. In light of this evidence, the mere fact that one
other African-American candidate was not selected, despite having “bare minimum”

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qualifications, is not enough for a reasonable factfinder to find discriminatory motive on
the part of the defendant. Accordingly, the discrimination claims based on failure to
promote must be dismissed and the court need not decide whether the failure to promote
claim under § 1981 is likewise time-barred. 6
C. Retaliation
Plaintiff also claims that Westlake violated Title VII, the ADEA, and 42 U.S.C. §
1981 by retaliating against him for his 2017 EEOC charge, his internal complaint about the
noose incident, his 2018 union grievance regarding the temporary transfer, and his 2019
charge of discrimination with the EEOC. As acts of retaliation he points to the following:
(1) the promotion denial in fall 2018, (2) his temporary transfer in November 2018, (3) his
unsatisfactory performance review and resulting improvement plan in February 2019, and
(4) his verbal reprimand by Willis, culminating in his constructive discharge. 7 Doc. 1, ¶¶
69–85. In his opposition to the motion for summary judgment he also asserts that he was
subjected to a retaliatory hostile work environment. Doc. 29, pp. 62–66.
To establish a prima facie case of retaliation, a plaintiff must show that (1) he
participated in an activity protected under Title VII; (2) his employer took an adverse

A four-year limitations period applies to § 1981 claims that were not available prior to the 1991 amendments, while
Louisiana’s one-year prescriptive period applies to claims available before that time. E.g., Hill v. Cleco Corp., 541 F.
App’x 343, 345 (5th Cir. 2013). Failure to promote claims were actionable prior to the 1991 amendments only if “the
nature of the change in position was such that involved the opportunity to enter into a new contract with the employer.”
Brooks v. Firestone Polymers, LLC, 70 F.Supp.3d 816, 852 (E.D. Tex. 2014). Accordingly, the court must compare
the duties, salary, and benefits between the two positions to determine if “substantial changes” are involved. Id.
(quoting Fonteneaux v. Shell Oil Co., 289 F. App’x 695, 699 (5th Cir. 2008)). Neither party has produced sufficient
evidence to guide this inquiry.
7
In his opposition to this motion, plaintiff also asserts that Westlake retaliated against him by failing to adequately
investigate the noose incident and by generally subjecting him to a hostile work environment. Doc. 29, p. 50. This is
not named as an incident of retaliation in the complaint, and the court will instead consider it under the plaintiff’s
putative claim of retaliatory hostile work environment, infra.
6

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employment action against him; and (3) a causal link exists between the protected activity
and the adverse action. Feist v. Louisiana, 730 F.3d 450, 454 (5th Cir. 2013). The causal
connection must be “but for,” meaning that the adverse action would not have occurred
without the protected activity. Univ. of Tex. SW Med. Ctr. v. Nassar, 570 U.S. 338, 360–
61 (2013). If he makes this showing, the burden shifts as above to the employer to articulate
a legitimate, non-discriminatory reason for its decision and then to the plaintiff to show
that this reason is actually a pretext retaliation. Septimus v. Univ. of Houston, 399 F.3d 601,
610–11 (5th Cir. 2005). Westlake moves for summary judgment on each alleged incident
of retaliation.
1. Failure to promote and temporary transfer
Plaintiff first attempts to show retaliation based on his denial of promotion to
supervisor in October 2018 and temporary transfer to Plant C in November 2018. The
relevant protected activity is his May 2017 EEOC charge about transfer of AfricanAmerican electricians to Plant B and his complaint to HR in October 2018 about yelling
and threats by Thompson and Campbell. Westlake maintains that plaintiff cannot establish
a causal nexus between the EEOC charge and the promotion, since the charge was
dismissed more than one year before plaintiff even applied for the promotion. It also asserts
that plaintiff’s 2018 complaints to HR were not protected activity. These arguments inure
to the benefit of the other alleged retaliation incident, which came shortly thereafter and
before any other alleged protected activity.
On the first issue, temporal proximity alone may support a causal link but only when
the protected activity and adverse employment decision are sufficiently close—meaning a
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matter of months apart. E.g., Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471–72 (5th
Cir. 2002) (finding that five months between protected activity and adverse action, standing
alone, was insufficient to support an inference of retaliation). The EEOC charge was filed
and dismissed over one year before plaintiff even applied for the promotion or before his
temporary transfer. Plaintiff has submitted no competent evidence to show that Thompson,
Campbell, or any other decision-maker on his application for the supervisor position knew
of the charge. 8 Accordingly, he cannot establish a causal nexus between the two events and
the claim must be dismissed in this regard.
As for the HR complaint, plaintiff applied for the promotion in August 2018. In
September 2018 he complained to Campbell about chairs in the breakroom, then
complained to Thompson about the way Campbell had spoken to him. On October 2, 2018,
two days before his interview, he met with HR manager Barbara Downer to complain about
alleged yelling and cursing from Campbell and alleged threats from Thompson about
escalating issues and filing frivolous reports. In his deposition plaintiff did not attribute
either of these events to discrimination based on his race or age. See doc. 29, att. 2, pp. 88–
93. There is likewise no indication in Downer’s declaration that Thompson complained at
this point about discrimination. Doc. 17, att. 3, ¶ 12. The only reference to race issues

In his deposition Thompson acknowledged that plaintiff had a reputation for “escalat[ing] things[,] going around the
supervisor.” Doc. 29, att. 3, p. 121. However, he never testified as to any awareness of the 2017 EEOC charge and
only indicated awareness of plaintiff not going through the proper channels within the company. See id. at 123–24.
Plaintiff stated in his deposition that “someone” told him Campbell knew about the 2017 EEOC charge, but he could
not identify this person. Doc. 29, att. 2, p. 262. Plaintiff further admitted that he was unsure whether Thompson knew
of the charge. Id. at 262–63. The Fifth Circuit has rejected such unsourced workplace rumors as a basis for establishing
a causal nexus. See Gibson v. Verizon Servs. Org., Inc., 498 F. App’x 391, 397 (5th Cir. 2012).

8

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comes from a September 2018 email from Thompson, summarizing his discussion with
plaintiff to HR representative Melissa Portie:

Doc. 29, att. 22, p. 2.
For purposes of a retaliation claim, a plaintiff must show that he has (1) opposed an
unlawful employment practice or (2) made a charge, testified, assisted, or participated in
any manner in a Title VII or ADEA investigation, proceeding, or hearing. Grimes v. Tex.
Dep’t of Mental Health, 102 F.3d 137, 140 (5th Cir. 1996); Holt v. JTM Indus., Inc., 89

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F.3d 1224, 1226 (5th Cir. 1996). The prohibition on retaliation “protects employees who
use informal methods to voice their complaints, as well as those who file formal charges.”
Alack v. Beau Rivage Resorts, Inc., 286 F.Supp.2d 771, 774 (S.D. Miss. 2003).
Additionally, the opposed practices need not be illegal under the relevant statutes as long
as the employee had a reasonable belief that they were. Long v. Eastfield College, 88 F.3d
300, 304 (5th Cir. 1996). Finally, as plaintiff notes, “[m]agic words are not required, but
protected opposition must at least alert an employer to the employee’s reasonable belief
that unlawful discrimination is at issue.” Brown v. UPS, Inc., 406 F. App’x 837, 840 (5th
Cir. 2010).
Plaintiff asserts that the reference to past complaints about racial slurs in
Thompson’s email is sufficient to show that he was opposing illegal racial discrimination
under Title VII. The context of the email shows, however, that these past allegations were
discussed in the context of issues appropriately escalated to management, in contrast to
plaintiff’s complaints about more trivial matters. Accounts from plaintiff himself and HR
show that plaintiff was not complaining about race- or age-based discrimination during his
meeting with Thompson in September 2018 or his report to HR the following month.
Accordingly, plaintiff can show no basis for a reasonable belief that he was opposing a
practice made illegal under Title VII or the ADEA in these activities. His prima facie case
thus fails as to the promotion denial and temporary transfer, to the extent the latter event
would even qualify as an adverse employment decision in the first place.

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2. Improvement plan and treatment by Willis
Plaintiff next alleges that he was subject to retaliation through his improvement plan
and his treatment by new supervisor Keith Willis, specifically a verbal warning not to
socialize with colleagues during work hours. Westlake contends that neither event qualifies
as an adverse employment action.
For purposes of a retaliation claim, an adverse employment action “need not rise to
the level of ultimate employment decisions.” Welsh v. Fort Bend Indep. Sch. Dist., 941
F.3d 818, 827 (5th Cir. 2019). Instead, it is enough that the action is “materially adverse,
such that it would dissuade a reasonable employee from making a discrimination
complaint.” Newbury v. City of Windcrest, Tex., 991 F.3d 672, 678 (5th Cir. 2021).
Accordingly, a reprimand may in some circumstances rise to the level of an adverse
employment action. Id. However, “an employer’s decision to place an employee on a
performance improvement plan is not an adverse employment action.” Welsh, 941 F.3d at
824 (citing Turner v. Novartis Pharma. Corp., 442 F. App’x 139, 141 (5th Cir. 2011)).
Accordingly, even though plaintiff has produced records of satisfactory performance
reviews in some of his prior years at Westlake, this incident cannot support a claim of
retaliation.
As for Willis’s reprimand, plaintiff cites only a verbal instruction that he—and he
alone—should refrain from talking to other employees except when on breaks. Plaintiff
complains that Willis’s intent was to isolate him and that this instruction was the “straw
that broke the camel’s back,” leading to a panic attack and ongoing medical issues. Doc.
29, pp. 60–61. Even with this context and plaintiff’s subjective factors, however, the court
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cannot find that the instruction was sufficient to dissuade a reasonable employee from
making a discrimination complaint. Willis’s instruction was not accompanied by any overt
threats and specifically excluded break time and the lunch period; plaintiff was free to talk
to his colleagues about work issues during work hours and to otherwise socialize with them
during rest periods. Furthermore, Willis stated in his declaration that he had received
feedback that plaintiff “was not getting jobs done because he was socializing and not
working,” and that his instruction was intended to address the issue. Doc. 17, att. 9, ¶¶ 3–
4. Although plaintiff testified that he took exception to the instruction, he offers no basis
for refuting the problem Willis states he was trying to address. The fact that colorable
grounds existed for the warning should likewise lead a reasonable employee to understand
“that the restrictions were not the offspring of a retaliatory mind-set.” Baloch v. Norton,
517 F.Supp.2d 345, 355 (D.D.C. 2007) (citing DeHart v. Baker Hughes Oilfield Ops., Inc.,
214 F. App’x 437, 442 (5th Cir. 2007)). Finally, the court can locate no caselaw supporting
the idea that a single verbal reprimand, even in the context of an improvement plan
meeting, would rise to the level of an adverse employment action. Cf. Thibodeaux-Woody
v. Houston Cmty. Coll., 593 F. App’x 280, 286 (5th Cir. 2014) (“While a reprimand can
serve as the basis for a retaliation claim under certain circumstances, we have held that a
written reprimand, without evidence of consequences, does not constitute an adverse
employment action.”) (internal citations omitted). Accordingly, neither event supports a
retaliation claim.

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3. Retaliatory hostile work environment/constructive discharge
Finally, plaintiff alleges that the retaliation culminated with his constructive
discharge on November 30, 2020, after “numerous years” of exposure to an abusive
working environment at Westlake. Doc. 1, ¶ 80. Westlake moves for summary judgment
on this claim based on plaintiff’s failure to show sufficiently severe or pervasive
harassment. In his opposition to the motion, plaintiff also asserts that he was subjected to
a retaliatory hostile work environment. Doc. 29, pp. 62–66. Westlake objects on the
grounds that this claim was not raised in the complaint and the deadline for amending the
pleadings has passed. Doc. 35, p. 2 n. 4.
To prevail on a constructive discharge claim, a plaintiff must show that the employer
“[made] working conditions so intolerable that a reasonable employee would feel
compelled to resign.” Carpenter v. Miss. Valley State Univ., 807 F.Supp.2d 570, 596 (N.D.
Miss. 2011) (quoting Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 771 (5th Cir.
2001)). Moreover, the plaintiff must demonstrate a “greater severity or pervasiveness of
harassment than the minimum required to prove a hostile work environment claim.” Woods
v. Delta Bev. Group, Inc., 274 F.3d 295, 301 (5th Cir. 2001).
Meanwhile, the Fifth Circuit has not yet recognized a cause of action for “retaliatory
hostile work environment.” E.g., Tejada v. Travis Ass’n for the Blind, 617 F. App’x 325,
328 (5th Cir. 2015). Such a claim “results from discrimination that does not culminate in a
tangible or adverse employment action.” Rowe v. Jewell, 88 F.Supp.3d 647, 674 (E.D. La.
2015) (emphasis in original). Instead, it involves “a series of separate acts that collectively
constitute one ‘unlawful employment practice.’” Id. “A workplace environment is hostile
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when it is permeated with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of the victim's employment.” Id.
(quoting Alaniz v. Zamora-Quezada, 591 F.3d 761, 771 (5th Cir. 2009)).
As Westlake notes, the complaint contains no indication that plaintiff is pursuing a
claim for retaliatory hostile work environment. To the extent such a claim exists, however,
plaintiff still fails to show sufficiently severe or pervasive treatment. At most, such a claim
would add only the alleged inadequacies of HR’s investigation into the noose incident to
the alleged retaliation incidents (improvement plan and verbal reprimand from Willis) for
which plaintiff has been able to establish a causal nexus. The addition of this incident to
the others does not rise to the level of actionable retaliation.
On the severity element, an employer violates Title VII “[w]hen the workplace is
permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe
or pervasive to alter the conditions of the victim's employment and create an abusive
working environment.” 9 Harris v. Forklift Sys., 510 U.S. 17, 21 (1993). Because Title VII
is “only meant to bar conduct that is so severe [or] pervasive that it destroys a protected
class member’s opportunity to succeed in the workplace,” courts have set a high standard
for determining what constitutes a hostile work environment. Lewis v. M7 Prods., LLC,
427 F.Supp.3d 705, 720 (M.D. La. 2019) (internal quotation omitted). The conduct must
be both subjectively and objectively offensive, meaning that the victim perceived the
environment as hostile or abusive and that a reasonable person would do likewise. E.E.O.C.

Plaintiff also purports to bring this claim under 42 U.S.C. § 1981, but acknowledges that the analysis is the same as
under Title VII. Doc. 29, att. 34; see Puente v. Ridge, 324 F. App’x 423, 427–28 (5th Cir. 2009).

9

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v. WC&M Enters., Inc., 496 F.3d 393, 399 (5th Cir. 2007). Courts examine such a claim
based on the totality of the circumstances, looking to the frequency and severity of the
conduct, whether it was physically threatening or humiliating, and whether it
“unreasonably [interfered] with an employee’s work performance.” Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 347 (5th Cir. 2007). “No single factor is
determinative.” WC&M Enters., Inc., 496 F.3d at 399.
“Careful monitoring of an employee’s job performance does not suffice to support
a claim for hostile work environment.” Valdry v. Brennan, 2017 WL 2702226, at *8 (M.D.
La. Jun. 22, 2017) (quoting Rowe, 88 F.Supp.3d at 675) (cleaned up). As for the
investigation, plaintiff complains that HR manager Barbara Downer did not conduct it
herself but rather supervised two other HR employees in the process. He also asserts,
without any support, that “HR did not actually see the investigation through any
meaningful completion – despite the myriad of cameras and other security measures
commonsensically employed through Defendant’s facility, the fact that HR was ‘unable’
to even determine the perpetrator is fatal to Defendant’s position regarding its remedial
efforts.” Doc. 29, p. 53. Finally, he complains that HR considered the possibility (but did
not ultimately conclude) that the wire might not have been tied in a deliberately
discriminatory manner. However, he fails to point to the existence of any tapes that might
have shown the relevant area or to show that HR’s procedures regarding this investigation
violated any relevant standards.
Though plaintiff may have perceived an accumulation of slights leading to his health
difficulties and medical leave, his subjective impressions alone are not enough to prove his
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claim. Objectively, this incident even in connection with the other incidents sharing a
possible nexus with plaintiff’s protected activity under Title VII and the ADEA does not
rise to the level of a hostile and abusive environment. Accordingly, plaintiff fails to state a
prima facie case of retaliatory hostile work environment. For the same reasons, these
incidents fall short of what is required to meet the higher threshold of a constructive
discharge claim.
IV.

CONCLUSION
For the reasons stated above, the Motion for Summary Judgment [doc. 17] will be
GRANTED and plaintiff’s claims will be DISMISSED WITH PREJUDICE.
THUS DONE AND SIGNED in Chambers on the 19th day of September, 2022.

__________________________________
JAMES D. CAIN, JR.
UNITED STATES DISTRICT JUDGE

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