Johnson v. Berry Plastics Corp

Filing 30

MEMORANDUM RULING re 22 MOTION for Summary Judgment filed by Berry Plastics Corp. Signed by Judge Robert G James on 5/27/16. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
SHANNON M. JOHNSON

*

CIVIL ACTION NO. 15-1078

VERSUS

*

JUDGE ROBERT G. JAMES

BERRY PLASTICS CORP.

*

MAG. JUDGE KAREN L. HAYES

RULING
This is an employment discrimination and retaliation action brought by Plaintiff Shannon
M. Johnson (“Johnson”) against his former employer, Berry Plastics Corp. (“Berry”), pursuant to Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and the Louisiana
Employment Discrimination Law (“LEDL”), LA. REV. STAT. § 23:301, et seq. Johnson raised three
claims against Berry: (1) Berry violated Title VII and the LEDL by paying black employees less than
white employees, (2) Berry violated Title VII by retaliating against him by instructing quality control
employees to find fault with his work, and (3) Berry violated Title VII by discharging him in
retaliation for filing an EEOC charge.
Berry filed a Motion for Summary Judgment [Doc. No. 22]. Johnson filed a memorandum in
opposition to the motion. [Doc. No. 26]. Berry filed a reply memorandum. [Doc. No. 27].
For the following reasons, the Motion for Summary Judgment is GRANTED, and Johnson’s
claims are DISMISSED WITH PREJUDICE.
I.

FACTS
In 1993, after graduating from high school, Johnson began working for Sunbelt, a manufacturing

plant in Monroe, Louisiana. He was terminated in 1995 for poor attendance.
However, in 2002, he returned to work at the plant.1 At some point, the plant was acquired
by Tyco.
On April 3, 2007, Berry, which owns and operates manufacturing plants in and outside North
America, acquired the Monroe, Louisiana plant from Tyco. Berry hired the incumbent Tyco
workforce, including Johnson and his purported comparator, Jimmie Weaver (“Weaver”), who is
white, at the same positions they held with Tyco.
Berry and Tyco paid different hourly rates for many positions. However, after the acquisition,
Berry continued to pay the Monroe employees at the higher Tyco hourly rates. Johnson had been
employed by Tyco as a Senior Operator with an hourly rate of $11.32, and he continued in this
position and with this hourly rate under Berry. Weaver had been employed as a Team Leader with
Tyco with an hourly rate of $15.00, and he continued in this position and with this hourly rate under
Berry as well.
On July 15, 2007, Johnson resigned his employment with Berry to accept another position with
a former employer.
In May 2008, Johnson contacted Gary Lilly (“Lilly”) about any job openings at Berry. Lilly
conferred with Tim Shambro (“Shambro”), Berry’s Production Manager, but no Senior Operator
positions were available.2 Berry did have an opening for Packer, an unskilled labor position, at an
hourly rate of $8.16. Johnson was offered the position, and he accepted.

It is unclear if the plant was still Sunbelt at this time.

1

Johnson claims that Shambro had told him at the time of his resignation that he would be
able to return to his Senior Operator position with the company at the same rate if he returned
within a year. However, Johnson did not file an EEOC or otherwise assert a claim based on this
alleged assurance when he returned to work in 2008.
2

2

Between his re-employment with Berry in 2008 and his termination, Johnson’s hourly pay
increased from $8.16 to $14.98. During this time, he was awarded two promotions, first to Senior
Operator in 2009 and then to Team Leader in 2010. In every year other than 2011 (when he had a
disciplinary action and a low performance rating), Johnson received merit increases.
In 2010, the Berry facility became ISO certified. To keep this certification, Berry was
required to have written procedures for handling production matters. One such policy was the Control
of Nonconforming Product Policy.
Team Leaders, like Johnson, are responsible for the production of any machine they oversee.
During this time, Johnson reported to Tony Masters (“Masters”), the Shift Supervisor. The Monroe
facility also had a Quality Department, consisting of the Quality Manager, Paul Perkins, and
employees who served as Quality Auditors. The Quality Auditors are charged with checking products
as they come off production to determine if they are defective. If the Quality Auditor finds a defective
product, he or she then consults with the Team Leader to identify the product that needs to be removed
from production. The Quality Auditor then inspects to determine that the defective product has been
fully removed. Only a supervisor or a Quality Department employee is authorized to put a product
which appears defective back into production.
In the summer of 2012, Johnson complained to Laurie King (“King”), Berry’s Human
Resources Generalist, that his hourly rate was too low because he should have been re-hired at a
higher rate of pay, and Weaver received a higher rate of pay. King investigated Johnson’s complaint,
but found that Weaver’s higher hourly rate was justified.
While Johnson was serving as Team Leader, but prior to the filing of a charge of
discrimination, he was the subject of six disciplinary actions, including a suspension for poor quality.

3

On May 9, 2013, Johnson filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) under #846-2013-33753. Johnson believes that Berry received
notice of the EEOC charge between July 9 and 19, 2013.
After Johnson filed an EEOC charge, he was the subject of six more disciplinary actions. On
July 26, 2013, Masters issued a verbal warning to Johnson for his admitted failure to complete a first
piece inspection when an order started. On December 9, 2013, Masters suspended Johnson for three
days without pay and issued a Last Chance Agreement to him for violating ISO standards and violating
the Code of Business Ethics. Johnson was captured on video removing some product from a reject
area to the High Density Production Area.3
On February 16, 2014, Berry extended the Last Chance Agreement because Johnson violated
overtime scheduling policies by switching shifts with another employee without approval. Although
Johnson is unsure what impact switching shifts may have on overtime, he admits that one of Berry’s
major customers has placed limits on the number of hours an employee can work during the week.
On February 20, 2014, Berry issued a verbal warning to all Team Leaders, including Johnson,
because scrap goals were missed. Johnson admits that the goals were missed, and all Team Leaders
received a verbal warning.
On March 24, 2014, Johnson filed a second EEOC charge under #461-2014-00755, alleging
that Berry retaliated against him.
On June 21, 2014, Berry issued another verbal warning to Johnson because, under his
leadership, non-conforming product that should have been scrapped was sent to a customer. Johnson

Johnson was captured on video moving the product, but he claimed that another employee,
Perry Chambers, helped him. According to Berry, it was a different employee, Brandon Hutson,
who walked alongside him, but Johnson moved the product on his own.
3

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admits that he had to be written up for this incident.
On August 21, 2014, Berry issued another verbal warning to Johnson because he failed to
report to mandatory training on July 29, 2014. Although Johnson does not recall the discipline, he
does not dispute that he signed the discipline form and does not dispute that he missed the training.
On December 8, 2014, the Quality Department discovered bags that were supposed to be 48
inches in length were actually a non-conforming length of 46 inches. As the Team Leader, Johnson
was required to inspect the product for length, and he had completed a checklist indicating that he had
done so, and the product was in compliance. Team Leaders are required to perform a “recording
check” every two hours, and they often do spot checks in between. Barbara Watt (“Watt”), Senior
Lead in the Quality Department presented the quality checklist and non-conforming product to Johnson
who admitted that he had only conducted an initial check at the beginning of the run, but had not
performed other checks. Watt and Johnson both provided statements to Berry, and Johnson admitted
in his statement that he had performed a “spot check, but nothing [thorough].” [Doc. No. 22-3, Johnson
Depo., p. 147 & Exh. 24].
However, Johnson contends that he checked the length at the beginning, and it should have
stayed the same. If Johnson had pulled the bin, he would have checked, but Terrence Johnson, his
assistance, pulled the bin, and he believes that Terrence Johnson should have checked the length. He
further contends that another Berry employee, Harlon Matthews (“Matthews”), had told him that if he
found a non-conforming product to correct it or switch with others. Matthews does not deny that he
may have told Johnson a different procedure in the past, but the procedure has been as described since
the plant became ISO certified in August 2010. [Doc. No. 23-10].
The following day, on December 9, 2014, Johnson’s supervisor, Masters, and the Quality
Control Manager, Paul Perkins (“Perkins’), were walking through the high density extrusion
5

department between approximately 2:45 and 3:00 p.m. when an employee, Jackie McCartery
(“McCartery”) called Masters aside. As they approached the Team Leader office, Perkins and Master
both individually observed Johnson sitting in a chair in the office with his eyes closed, and he
appeared to both men to be asleep. McCartery walked to the office and opened the door in a loud
manner, appearing to wake Johnson. Perkins and Masters reported the incident to Human Resources.
King investigated the incident, speaking with McCartery, who stated that he did not know whether
Johnson was asleep. Johnson denies that he was asleep, but that he had notified another employee that
he was ill with a migraine headache, which makes his eyes light sensitive.
King conferred with the Regional Human Resource Manager Cindy Newman, the Plant
Manager George Puckett (“Puckett), and Vice President for Human Resources, Jeff Bennett. They
decided to terminate Johnson. On December 12, 2014, Johnson was notified of his termination by
Puckett verbally and by King in writing.
On January 14, 2015, the EEOC issued a Notice of Right to Sue, which Johnson received on
or about January 20, 2015.
On April 4, 2015, Johnson notified Berry of his intention to file suit pursuant to state law. On
April 8, 2015, Johnson filed a Complaint [Doc. No. 1] in this Court, which was amended
on May 14, 2015 [Doc. No. 3]. The Amended Complaint, which superseded the original Complaint
stated claims for discriminatory pay practices under state and federal law and retaliatory discipline
and discharge under federal law.
On March 11, 2016, Berry filed the instant Motion for Summary Judgment [Doc. No. 22].
Johnson filed a memorandum in opposition [Doc. No. 26]. On April 29, 2016, Berry filed a reply
memorandum [Doc. No. 27].
II.

LAW AND ANALYSIS
6

A.

Motions for Summary Judgment

Under Federal Rule of Civil Procedure 56(a), “[a] party may move for summary judgment,
identifying each claim or defense--or the part of each claim or defense--on which summary judgment
is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party
bears the initial burden of informing the court of the basis for its motion by identifying portions of the
record which highlight the absence of genuine issues of material fact. Topalian v. Ehrmann, 954 F.2d
1125, 1132 (5th Cir. 1992); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact cannot
be . . . disputed must support the assertion by . . . citing to particular parts of materials in the record
. . . ). A fact is “material” if proof of its existence or nonexistence would affect the outcome of the
lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute about a material fact is “genuine” if the evidence is such that a reasonable fact finder could
render a verdict for the nonmoving party. Id.
If the moving party can meet the initial burden, the burden then shifts to the nonmoving party
to establish the existence of a genuine issue of material fact for trial. Norman v. Apache Corp., 19
F.3d 1017, 1023 (5th Cir. 1994). In evaluating the evidence tendered by the parties, the Court must
accept the evidence of the nonmovant as credible and draw all justifiable inferences in its favor.
Anderson, 477 U.S. at 255. However, “a party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of evidence. Thus, Summary Judgment is
appropriate if a reasonable jury could not return a verdict for the nonmoving party.” Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)); see also Ruiz v. Whirlpool, Inc., 12 F.3d 510, 513 (5th Cir. 1994)
(“Testimony based on conjecture or speculation is insufficient to raise an issue of fact to defeat a
7

summary judgment motion because ‘there is no issue for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party. . . . If the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted.’”).
B.

Discriminatory Pay

Title VII prohibits an employer from discharging or otherwise discriminating “against any
individual with respect to his compensation, terms, conditions, or privileges of employment, because
of such individual’s . . . race.” 42 U.S.C. § 2000e-2(a)(1).
The LEDL also prohibits race discrimination in employment.4 LA. REV. STAT. § 23:332 (“It
shall be unlawful discrimination in employment for an employer to engage in any of the following
practices: (1) Intentionally fail or refuse to hire or to discharge any individual, or otherwise to
intentionally discriminate against any individual with respect to compensation, or terms, conditions,
or privileges of employment, because of the individual’s race . . . .”).
In this case, Johnson asserts that he was subjected to race discrimination because Berry paid
black employees less than they did white employees.
In Title VII employment discrimination cases in which there is no direct evidence, a plaintiff
may rely on the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04 (1973). As “[b]oth Title VII and Louisiana employment discrimination statutes
prohibit . . . discrimination[] and retaliation, . . . Louisiana courts routinely look to federal law for
guidance in determining whether a viable claim has been asserted.” Smith v. Amedisys Inc., 298 F.3d

Berry also moved for summary judgment on Johnson’s state law pay claims on the basis
that they were untimely. Johnson argues that his lawsuit would have been premature prior to the
issuance of the notice of right to sue on his last EEOC charge. Given the Court’s analysis and
conclusions, the Court need not address the timeliness of Johnson’s state law claim based on the
alleged pay disparity between Johnson and Weaver. Even if the claims are timely filed, he has
failed to raise a genuine issue of material fact for trial on his state or federal pay disparity claims.
4

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434, 440 (5th Cir. 2002); see also,La Day v. Catalyst Tech., Inc., 302 F.3d 474, 477 (5th Cir. 2002);
King v. Phelps Dunbar, L.L.P., No. 98-C-1805 (La. 06/4/99), 743 So.2d 181, 187 (citing Bustamento
v. Tucker, 607 So.2d 532, 538, n. 6 (La.1992)).
“To make out a prima facie case of discrimination in compensation, a plaintiff must show that
he was a member of a protected class and that he was paid less than a non-member for work requiring
substantially the same responsibility.” Taylor v. United Parcel Service, Inc., 554 F.3d 510, 522 (5th
Cir. 2008) (citing Uviedo v. Steves Sash & Door Co., 738 F.2d 1425, 1431 (5th Cir. 1984)); see also
Goring v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. College, 414 Fed. App’x. 603, 633
(5th Cir. 2011) (citing Taylor, 544 F.3d at 522). A plaintiff’s prima facie evidence must show that
his “pay was lower than specific employees who are not members of the protected class.” Taylor,
544 F.3d at 523. Further, the plaintiff “has the burden of demonstrating that ‘the employment actions
at issue were taken under nearly identical circumstances.’” Frazier v. Sabine River Authority La., 509
Fed. App’x. 370 (5th Cir. 2013) (quoting Turner v. Kan. City S. Ry., 675 F.3d 887, 893 (5th Cir.
2012)). The Fifth Circuit has explained that “nearly identical circumstances” are those where the
comparator employees “‘held the same job or responsibilities, shared the same supervisor, or had
their employment status determined by the same person, and have essentially comparable violation
histories.’” Id.
If plaintiff meets his prima facie burden, then the employer must produce a legitimate
non-discriminatory reason for the pay disparity. Id. at 522 (citing Ross v. University of Texas at San
Antonio, 139 F.3d 521, 525 (5th Cir. 1998) (internal quotation marks omitted)).
When the employer satisfies this requirement, the burden of proof then shifts back to the
plaintiff to show either: “(1) that the defendant’s reason is not true, but is instead pretext for
discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is only one of the
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reasons for its conduct, and another ‘motivating factor’ is the plaintiff’s protected characteristic
(mixed motive alternative.”). Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir.
2004)(internal citations omitted).
In this case, Johnson has failed to establish a prima facie case of discrimination based on pay
disparity. Johnson is a member of a protected class as an African-American, and he has alleged that
he was paid less than white employees. More specifically, he has argued that a white employee,
Weaver, who also held the position of Team Leader was paid a higher hourly rate. At first blush, this
evidence would appear to be sufficient for Johnson to meet his prima facie burden. However, it is
undisputed that Weaver had fifteen years of experience as a Team Leader while Johnson had only
three. Thus, Johnson has failed to establish that he and Weaver were employed in nearly identical
circumstances.5
Further, even if Johnson could make out a prima facie case of discrimination, Berry has
produced legitimate, non-discriminatory reasons for the differences in the rates of pay for Johnson and
Weaver. King, its human resources employee, investigated Johnson’s complaints and found no pay
disparity. When Berry acquired Tyco in 2007, Johnson was working as a Senior Operator, and Berry
continued to pay him the grandfathered rate of $11.32 per hour until his voluntary resignation in 2007.
When Johnson re-applied to Berry, there were no Senior Operation or comparable positions

In his deposition, Johnson also claimed that Berry discriminated against him by failing to
re-hire him at the same rate he was paid when he resigned. He claimed that Larry Watson, Jeff
Killebrew, John Guillilee, Tony Masters, and April Shipp were all hired back into their former
positions at the same rate of pay. It appears to the Court that he no longer asserts these claims, but
relies solely on his comparison to Weaver. However, to the extent his state and federal pay
disparity claims are based on Berry’s alleged discriminatory failure to re-hire him at the same rate
of pay, he cannot survive summary judgment. Johnson was re-hired in 2008, but did not timely file
a charge of discrimination with the EEOC or the State Human Rights Agency. Thus, he failed to
exhaust his administrative remedies with regard to this claim, he cannot do so now, and he cannot
proceed with an unexhausted claim in this lawsuit.
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available. Instead, he chose to return to a lower level position with a corresponding lower hourly rate
of pay. Although he eventually promoted to Team Leader, he had no prior experience in this position.
In contrast, at the time that Berry acquired Tyco, Weaver had been employed continuously
since 1998 and was working as a Team Leader at a rate of $15.00 per hour.6 By the time of King’s
investigation, Weaver had been working as a Team Leader for almost fifteen years, whereas Johnson
had only been a Team Leader for three years.
In response to Berry’s legitimate, non-discriminatory reasons for the pay differential, Johnson
failed to produce evidence to show that the reasons are false, or that the reasons, while true, are only
part of the motivation for the difference, and another motivating factor was Johnson’s race. In fact,
in addition to the objective differences between Johnson’s and Weaver’s employment history, the
undisputed evidence shows that after Johnson returned to work for Berry at a lower level position,
he received two promotions, and his pay increased from $8.16 to $14.98 per hour. Johnson pointed
to no evidence whatsoever that Berry’s reasons for his hourly rate of pay were pretext for
discrimination or were part of a mixed motive.7 Accordingly, Berry is entitled to summary judgment
on Johnson’s pay disparity claims under federal and state law. The Motion for Summary Judgment
on these claims is GRANTED, and the claims will be DISMISSED WITH PREJUDICE.

6
In Plaintiff’s Response to Statement of Material Facts, Johnson states that “Jimmy Weaver
also left the defendant’s employment and returned, thereby giving up his ‘grandfathered status.’”
[Doc. No. 26-2, p.1 (citing Doc. No. 26-4, Deposition of Shannon Johnson, pp. 49-56)]. The cited
deposition pages do not support this statement. Further, earlier in his deposition, Johnson admits
that he was referring to the re-hiring of other co-workers, not Weaver. [Doc. No. 26-4, Johnson
Depo., p. 31 (“Q: Do you know when Jimmy Weaver was rehired? A: No, sir. I don’t know . . .
Jimmy Weaver is not in this statement.”)]. Although the Court has found that Weaver is not an
appropriate comparator for other reasons, there is no evidence that Weaver left his employment
with Berry and later returned.

Berry also produced evidence that Weaver, like Johnson, had been denied an annual merit
increase because of a disciplinary action, further demonstrating the lack of discriminatory intent.
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C.

Retaliation
Title VII prohibits an employer from discriminating against an employee because he has

opposed an employment practice that is unlawful under Title VII or testified in an investigation,
proceeding, or hearing under Title VII. See 42 U.S.C. § 2000e-3(a).
Retaliation claims under Title VII are analyzed under the McDonnell Douglas burden-shifting
framework. See McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). To establish a
prima facie case of unlawful retaliation, Johnson must show: (1) that he engaged in protected activity;
(2) that he was subjected to a materially adverse employment action; and (3) that there is a causal
connection between the protected activity and the materially adverse employment action. See
Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006); see also Evans v. City of Houston,
246 F.3d 344, 352 (5th Cir.2001). Materially adverse employment actions are actions which are
“harmful to the point that they could well dissuade a reasonable worker from making or supporting
a charge of discrimination.” Burlington, , 548 U.S. at 57. At the prima facie stage, “the standard for
satisfying the causation element is ‘much less stringent’ than a ‘but for’causation standard.” Fierros
v. Tex. Dep't of Health, 274 F.3d 187, 191 (5th Cir. 2001) (quoting Long, 88 F.3d at 305 n. 4 ).
Temporal proximity alone, if “very close, can in some instances establish a prima facie case of
retaliation[,]” but “temporal proximity standing alone can[not] be sufficient proof of but for
causation.” Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007) (citing Clark
Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).
If a plaintiff establishes a prima facie case, the McDonnell-Douglas burden shifting
framework then applies. Haire v. Bd. of Sup'rs of Louisiana State Univ. Agric. & Mech. Coll., 719
F.3d 356, 367 (5th Cir. 2013) (citing Evans, 246 F.3d at 354). The employer will be required to
produce legitimate, non-retaliatory reasons for its employment act. If the employer meets its burden
12

of production then the plaintiff must show that “the retaliation was a ‘but for’ cause of the adverse
employment decision.” Haire, 719 F.3d at 368 (quoting Long v. Eastfield Coll., 88 F.3d 300, 305
n. 4 (5th Cir.1996) (internal quotation marks omitted)). At this stage, in order to “defeat a motion for
summary judgment, a Title VII plaintiff . . . must show there is a conflict in substantial evidence on this
ultimate issue.” Id. at 368-69 (citing Long, 88 F.3d at 308) (inset quotation marks omitted).
“‘Evidence is substantial if it is of such quality and weight that reasonable and fair-minded men in the
exercise of impartial judgment might reach different conclusions.’” Id. at 369 (quoting Long, 88 F.3d
at 308).
In this case, Johnson raises two bases for his retaliation claims: (1) that he was subjected to
retaliatory discipline for filing his EEOC charges and (2) that he was ultimately discharged for filing
EEOC charges.

1.

Retaliatory Discipline

Berry moves for summary judgment on Johnson’s claim that he was subjected to retaliatory
discipline for a filing an EEOC charge. Berry does not deny that Johnson engaged in protected
activity, but contends that he failed to show that the complained-of discipline constituted materially
adverse actions. Further, even if Johnson could make out a prima facie case of retaliation, Berry
argues that he cannot establish that “but for” the filing of his EEOC charge, he would not have been
disciplined, i.e., that Berry’s reasons for terminating him were pretext for a retaliatory motive.
In order to maintain its ISO certification, Berry must maintain and secure compliance with
certain policies. As a result, Berry regularly coaches and disciplines employees for violations. Both

13

before and after Johnson filed an EEOC charge, Berry disciplined him. Because there was a “pattern
of regular discipline and coaching,” Berry argues that its continuation of discipline could not constitute
materially adverse actions. Berry contends that Johnson as much as admitted this fact when he
testified that he is the type of person to “speak up” if “there’s something that’s not right” without
fearing that he would lose his job. [Doc. No. 22-3, Johnson Depo., p. 68].
Johnson failed to respond specifically to Berry’s argument. However, the Court has
considered the record before it and finds that Johnson was subjected to materially adverse actions
which would have dissuaded a reasonable worker from making or supporting a charge of
discrimination.
Whether an action is materially adverse is judged from the objective, reasonable person
standard. See Burlington, 548 U.S. at 68 (“We refer to reactions of a reasonable employee because
we believe that the provision’s standard for judging harm must be objective.”). Even if Johnson is
the type of person to speak up about perceived injustice, the focus is not on his individual personality,
but on whether a reasonable person would be dissuaded. It appears true, from the record and the
deposition testimony of employees and former employees, that Berry regularly counsels and
disciplines employees for production problems. Counseling and verbal reprimands alone may not rise
to the level of materially adverse actions, but Berry ignores the fact that Johnson’s discipline included
a three-day unpaid suspension and imposition of a Last Chance Agreement. An unpaid suspension
would dissuade a reasonable worker from making or supporting an EEOC charge. Thus, Johnson can
establish this element of his prima facie case.
Even if Johnson met his prima facie burden8, Berry presented legitimate, non-retaliatory

Berry does not raise an argument on causal connection at the prima facie burden, but
proceeds to the final step of the analysis–the “but for” causation. The Court does the same.
8

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reasons for the disciplinary actions taken prior to Johnson’s termination. See Facts Section, pp. 4-5,
supra. Thus, Johnson may proceed to trial only if he has presented evidence sufficient to show that
the disciplinary actions would not have been taken against him but for the filing of his EEOC charge.
Johnson has failed to meet this burden.
First, Johnson is not an employee with an unblemished record prior to the filing of his EEOC
charge. The record is clear that Johnson had disciplinary actions both before and after he filed an
EEOC charge. This is not a case where an employee with no disciplinary history is subjected to
adverse actions only after he engages in protected conduct.
Second, Johnson cannot establish temporal proximity between Berry’s notice of his charge and
a materially adverse action. He filed his EEOC charge in May 2013, and he alleges that Berry
received notice of the charge in July. However, the first materially adverse action administered by
Berry, the three-day unpaid suspension and imposition of the Last Chance Agreement, was not
imposed until December 2013,9 approximately six months after Berry received notice of the EEOC
charge. Thus, there is no temporal proximity to provide evidence of a retaliatory motive.10 See
Hypolite v. City of Houston, Tex., 493 F. App'x 597, 607 (5th Cir. 2012) (“A causal connection based
on temporal proximity can be shown when the adverse employment action occurs up to four months

Johnson was subjected to a disciplinary action in July after Berry allegedly received
notice of the EEOC charge, but it was only a verbal warning for his admitted failure to complete a
first piece inspection when an order started. This action does not rise to the level of a materially
adverse action.
9

Although temporal proximity alone is not sufficient to show but-for causation, it may be
considered, along with other evidence, to meet the required showing. See Strong v. University
Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007). For example, the Fifth Circuit
pointed out that in Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th Cir. 1992), the plaintiff relied
not only on temporal proximity, but also on her complete lack of disciplinary history, the fact that
she was quickly fired for incidents for which no evidence existed, and the disparaging comments
her boss had made about her EEOC complaint. Strong, 482 F.3d at 808.
10

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after the protected conduct.”) (citing Evans, 246 F.3d at 354 (citation omitted)); cf. Ajao v. Bed Bath
and Beyond, Inc., 265 Fed. App’x 258, 265 (5th Cir. 2008) (“Temporal proximity of four months is
not close enough, without additional supporting summary-judgment evidence, to establish a causal
connection between the employment action and the protected conduct.”).11
Finally, Johnson’s attempts to rely on the statements of his former co-workers to establish
pretext also fail. He relies heavily on the testimony of his former co-worker, Johnny McGee
(“McGee”), a current Berry employee, that Berry supervisors sought to have Quality Department
employees find fault with his work. While McGee’s beliefs may be sincere, he has offered nothing
more than speculation and hearsay and double hearsay statements from other co-workers to support
those beliefs. The identified co-workers, Brenda Belton (“Belton”), Robin Thomas (“Thomas”) and
Stephanie Williams (“Williams”)12 either deny being present for a conversation with Johnson and/or
McGee, deny making any statements that Johnson needed to be careful or watch out, and/or deny being
told by Perkins to find things that Johnson had done wrong.13 See [Doc. Nos. 22-6, Williams Depo.,

The cases cited by the Court refer to the use of temporal proximity to prove a causal
connection at the prima facie stage. Berry chose to by-pass that argument, and, as set forth in in
footnote 10, the Court agrees that temporal proximity alone could not establish but-for causation.
Nonetheless, the cases are instructive. The Court notes that Berry refers to the period of time
between Johnson’s protected conduct and the disciplinary action as being four months, but the
Court is unclear how it arrived at that time period.
11

Williams was also known as Stephanie Carter at some point during her employment.

12

Thomas’ alleged statement to McGee that unidentified “people” were out to get Johnson
is clearly inadmissible hearsay. [Doc. No. 23- McGee Depo., pp. 30-32]. If Perkins made the
statements about which Johnson and McGee testify, those statements would be admissible as the
statement of a party opponent’s agent or employee on a matter within the scope of that relationship,
FED. R. EVID. 801(d)(2). However, the alleged report of these statements by another person to
McGee and/or Johnson adds another layer of hearsay. Johnson has failed to establish that
statements by Belton, Thomas, or Williams were admissible as statements as the agent of a party
opponent’s agent or were made within the course of their employment and thus also excepted from
the hearsay rule.
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pp. 8-10; 22-7, Thomas Depo., pp. 11-12; 22-11, Belton Declaration, ¶¶ 3]. Neither Johnson nor
McGee heard Perkins or any other Berry supervisor make statements about efforts to find fault with
Johnson’s work in an effort to “get him” for filing the EEOC charge. Johnson simply cannot meet his
burden by relying on speculation, beliefs, and innuendo. Therefore, Berry’s Motion for Summary
Judgment on this claim is also GRANTED, and this claim is DISMISSED WITH PREJUDICE.

2.

Retaliatory Discharge

Finally, Johnson asserts that he was subjected to the ultimate act of retaliation when he was
discharged by Berry on December 14, 2014. Berry moves the Court for summary judgment on this
claim because it was not raised in his Complaint or Amended Complaint, he failed to exhaust his
administrative remedies, and he cannot establish causation or pretext.
Berry is correct that Johnson failed to assert retaliatory discharge in either his original
Complaint or his Amended Complaint. However, even if a party raises a claim for the first time in
response to a motion for summary judgment, the Court cannot refuse to consider the claim, but must
treat the claim as a motion for leave to amend his pleadings under Federal Rule of Civil Procedure
15(c). Under Federal Rule of Civil Procedure 15(a), “a party may amend the party’s pleading only
by leave of court” and “leave to amend shall be freely given when justice so requires.” Engstrom v.
First Nat'l Bank, 47 F.3d 1459, 1464 (5th Cir. 1995) (quoting FED. R. CIV. P. 15(a)). The Court has
the discretion to grant or deny leave to amend, but that discretion “does not permit denial of a motion
to amend unless there is a substantial reason to do so,” such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party, or futility of the amendment. Leffall v. Dallas Indep.

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Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994) (citing references omitted); see also In re Southmark
Corp., 88 F.3d 311, 314-15 (5th Cir. 1996).
Berry argues that the Court should not allow Johnson to further amend his Amended Complaint
to assert a claim of discriminatory discharge because such amendment would be futile when Johnson
failed to exhaust his administrative remedies under Title VII by either filing a new EEOC charge or
amending his second EEOC charge to include this claim. Johnson did not seek leave of Court to file
a sur-reply and has not responded to this argument.
Under Title VII, a plaintiff is required to exhaust his administrative remedies prior to filing
suit. The scope of his complaint, or amendments thereto, is limited by the scope of the charges made
in the EEOC charge and the investigation that might reasonably be expected to grow out of that
complaint. Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389, 395 (5th Cir.2000).
On his March 27, 2014 EEOC charge, Johnson checked the box indicating retaliation as the
circumstances of the alleged discrimination and asserted the following facts in support of his claim:
On May 9, 2013, I filed charge #846-2013-33753. On July 19, 2013, the company
began retaliating against me. I was written upon August 14, 2013; and got cited on
December 6, 2013 for a bin that me and a co-worker moved to the back for inspection.
I was told by a co-worker that she was told to find anything negative on me so that the
company cold have enough ammunition to fire me. . . . .
No reason was given for the actions taken against me.
I believe I have been retaliated against for filing the above charge in violation of Title
VII . . . .
[Doc. No. 26-3, Exhibit 22].
Under these facts the Court finds that Johnson’s claim for retaliatory discharge is encompassed
in the scope of the EEOC charge. He alleged that he was retaliated against for filing his initial EEOC
charge asserting a claim of race discrimination. He claimed that Berry had begun to retaliate against
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him with the intent to “have enough ammunition to fire me.” The fact that Berry then indeed did
terminate Johnson is within the scope of the investigation that could reasonably be expected to arise
out of the charge. Although Berry cites the Court to Simmons-Myers v. Caesars Entertainment Corp.,
515 Fed. App’x 269 (5th Cir. 2013), that case actually supports the Court’s conclusion. The Fifth
Circuit stated that “‘a new theory of recovery [] can relate back to the date of the original charge when
the facts supporting both the amendment and the original charge are essentially the same.’” Id. at 273
(quoting Manning v. Chevron Chem. Co., 332 F.3d 874, 879 (5th Cir. 2003)). Unlike the plaintiff in
that case, Johnson’s allegations would put both the EEOC investigators and Berry on notice that his
termination was the result of retaliation, which he alleged was the very intent of Berry’s discipline
of him. Finally, the EEOC would have had the opportunity to consider this fact because the Notice
of the Right to Sue did not issue until January 2015, the month following Johnson’s termination.

Nevertheless, even if Johnson exhausted his administrative remedies on his retaliatory
discharge claim and the Court grants leave to amend his Amended Complaint to add this claim, his
claim does not survive summary judgment. He generally relies on the same evidence to show that his
discipline prior to discharge and the discharge itself were retaliatory. Johnson raises only one
additional argument: that the lack of temporal proximity is in and of itself evidence of pretext. He
contends that “a jury could conclude a crafty employer would hide [sic] its time to avoid the
appearance of temporal proximity.” [Doc. No. 26, p. 4]. Although Johnson’s argument is creative, the
lack of temporal proximity between the filing of his EEOC charges and his discharge is not evidence
of pretext according to Fifth Circuit precedent, which this Court is bound to follow. Thus, for the
reasons stated in the retaliatory discipline section as well as for this additional reason, Johnson has
failed to raise a genuine issue of material fact for trial that he would not have been discharged but for
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his filing of EEOC charges. Accordingly, Berry’s Motion for Summary Judgment on Johnson’s
retaliatory discharge claim is also GRANTED, and this claim is DISMISSED WITH PREJUDICE.

III.

CONCLUSION
For the foregoing reasons, Berry’s Motion for Summary Judgment [Doc. No. 22] is

GRANTED, and Johnson’s claims are DISMISSED WITH PREJUDICE.
MONROE, LOUISIANA, this 27th day of May, 2016.

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