Hardmon v. U L Coleman

Filing 57

MEMORANDUM RULING re 48 MOTION for Summary Judgment filed by U L Coleman Properties L L C. Signed by Judge Elizabeth E Foote on 2/16/2021. (crt,Keifer, K)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
MARCUS ANTHONY HARDMON

CIVIL ACTION NO. 17-1118

VERSUS

JUDGE ELIZABETH E. FOOTE

U.L. COLEMAN

MAGISTRATE JUDGE HAYES
MEMORANDUM RULING

Plaintiff Marcus Hardmon (“Plaintiff”), appearing pro se, filed a complaint in this Court
using a pre-made form for pro se litigants who seek to file workplace discrimination claims under
Title VII of the Civil Rights Act of 1964 (“Title VII”). [Record Documents 1 & 19]. Now before
the Court is a Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56
[Record Document 48] by Defendant U.L. Coleman Properties, L.L.C. (“Defendant”). Plaintiff has
filed an opposition. [Record Document 50]. Defendant has filed a reply. [Record Document 51].
For the reasons discussed below, Defendant’s Motion for Summary Judgment is GRANTED.
Plaintiff’s race and age discrimination claims are DISMISSED WITH PREJUDICE.
BACKGROUND
Plaintiff alleges that he was the maintenance supervisor at Northgate Square Apartments
(“Northgate”) in Bossier City, Louisiana when his employment was terminated after a failed drug
test following a workplace injury. Record Document 50, p. 3. It is undisputed that on November
20, 2015, Plaintiff injured his finger when he was unscrewing a sink drainpipe. Record Documents
48-1, ¶ 9 & 50, p. 1. According to Plaintiff, he was then sent to Work Kare for treatment and drug
testing as per company policy for a workplace injury. Record Document 50. Further, it is undisputed
that he was terminated on November 24, 2015, after the drug test returned a positive result for

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marijuana. 1 Record Documents 48-1, ¶s 8–14; 48-12; & 19, p. 1. Plaintiff avers that he sought to
retake the drug test on the date of his firing because he thought the medication that he was on
produced a false positive. Record Document 50, p. 1. Defendant offered to retest the sample he
produced on November 20, 2015. Record Documents 48-1, ¶s 15–16 & 50. Plaintiff proceeded to
procure a second drug test on a new sample at his own cost. Record Document 50, pp. 4–5. Plaintiff
passed the subsequent test, but Defendant rejected the new test because Plaintiff took it four days
after the initial test. Record Documents 48-1, ¶s 18–19 & 50, pp. 4–5.
Plaintiff argues that his termination represents employment discrimination. Record
Documents 1, 19, & 50. He is black and claims that a similarly situated white employee, Matthew
Thomas (“Thomas”), hit a car with his truck while at work in 2013 and refused to go to Work Kare
because he knew he would fail the required drug test. Record Document 50, pp. 1 & 3–5. Plaintiff
alleges that Thomas walked off the job after the incident and had time to dilute his urine by the time
he went to Work Kare. Id. at 5. Plaintiff claims that Thomas resigned because of this incident but
was rehired shortly thereafter. Id. Further, Plaintiff claims that another employee, “Mike,” fell off
a ladder, but Mike did not have to take a drug test and kept his job. Id. at 1. Plaintiff also claims
that Mike, who is younger and white, replaced Plaintiff after his termination. Record Document 12, p. 15. 2
Plaintiff had filed his original complaint against U.L. Coleman (“Coleman”), an individual
defendant. See Record Document 15, p. 16. However, Plaintiff’s EEOC letter granted him the right
to file a lawsuit against Northgate. Record Document 1-2, pp. 21–23. Coleman filed a motion to

1

In Plaintiff’s complaint, he lists November 24, 2015, as the date of termination. Record Document
19, p. 1. Now, he argues that he was terminated on November 23, 2015. Record Document 50, p.
4. The Court finds this contradiction to be immaterial.
2
However, Plaintiff does not allege that Mike replaced him in his amended complaint or opposition
to the Motion for Summary Judgment. See Record Documents 19 & 50.
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dismiss in response to Plaintiff’s original complaint. Record Document 15. The Court granted
Coleman’s motion on the grounds that Plaintiff had not exhausted his administrative remedies
against Coleman as required by Title VII. Record Document 18, p. 7. The Court granted Plaintiff
leave to amend his complaint and name a proper party as a defendant. Id. (citing Taylor v. Books A
Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002)). Plaintiff responded to the Court’s instruction
by filing an amended complaint naming as defendant U.L. Coleman Properties, L.L.C. Record
Document 19, p. 1. In response, Defendant filed a motion to dismiss. Record Document 29-1, p. 3.
Defendant’s motion to dismiss was granted to all claims but the race and age discrimination claims.
Record Document 33. Now, Defendant has filed a motion for summary judgment and seeks
dismissal of the remaining claims. Record Document 48.
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) directs a court to “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.” Summary judgment is appropriate when the pleadings, answers to
interrogatories, admissions, depositions, and affidavits on file indicate that there is no genuine issue
of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). When the burden at trial will rest on the non-moving party,
the moving party need not produce evidence to negate the elements of the non-moving party’s case;
rather, it need only point out the absence of supporting evidence. See id. at 322–23.
If the movant satisfies its initial burden of showing that there is no genuine dispute of
material fact, the non-movant must demonstrate that there is, in fact, a genuine issue for trial by
going “beyond the pleadings and designat[ing] specific facts” for support. Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (citing Celotex, 477 U.S. at 325). “This burden is not satisfied

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with some metaphysical doubt as to the material facts,” by conclusory or unsubstantiated
allegations, or by a mere “scintilla of evidence.” Id. (internal quotation marks and citations omitted).
However, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to
be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1985) (citing Adickes
v. S. H. Kress & Co., 398 U.S. 144, 158–59 (1970)). While not weighing the evidence or evaluating
the credibility of witnesses, courts should grant summary judgment where the critical evidence in
support of the non-movant is so “weak or tenuous” that it could not support a judgment in the nonmovant’s favor. Armstrong v. City of Dall., 997 F.2d 62, 67 (5th Cir. 1993).
Additionally, Local Rule 56.1 requires the movant to file a statement of material facts as to
which it “contends there is no genuine issue to be tried.” The opposing party must then set forth a
“short and concise statement of the material facts as to which there exists a genuine issue to be
tried.” W.D. La. R. 56.2. All material facts set forth in the movant’s statement “will be deemed
admitted, for purposes of the motion, unless controverted as required by this rule.” Id.
LAW & ANALYSIS
Plaintiff brings two claims, that of race and age discrimination. The Court will analyze these
claims separately.
I. Race Discrimination Claim
Title VII states that “[i]t shall be an unlawful employment practice for an employer to fail
or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (2012). Where,
as in the instant case, a plaintiff offers only circumstantial evidence of discrimination, the threestep McDonnell Douglas framework applies. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219

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(5th Cir. 2001); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this
framework, a plaintiff must assert a prima facie case of discrimination, which, if established, raises
a presumption of discrimination. Methodist Hosp. Sys., 271 F.3d at 219. “The employer must then
produce a legitimate nondiscriminatory reason for the adverse employment decision.” Id. Once the
employer produces such a reason, the presumption of discrimination dissipates and the plaintiff
must prove that the employer’s given reason for the termination was pretextual and that he was
discriminated against because of his protected status. Id. at 219–20.
A. Plaintiff’s Prima Facie Case
A prima facie case of race discrimination requires a showing that the plaintiff (1) is a
member of a protected group; (2) was qualified for the position at issue; (3) was discharged or
suffered some adverse employment action by the employer; and (4) was replaced by someone
outside his protected group or was treated less favorably than other similarly situated employees
outside the protected group. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). In this
case, it is undisputed that Plaintiff meets the first and third elements because he is a member of a
protected class and was fired.
1. Qualified for His Position
The parties, however, dispute whether Plaintiff was qualified for his position. Defendant
argues that the failed drug test made Plaintiff unqualified for his position at the time of his firing
because he was not in compliance with the company policy on substance abuse. Record Document
48-2, pp. 11–12. Plaintiff claims to have been working for Defendant in a maintenance-related
capacity since 2006. Record Document 50, p. 3. The Court construes this statement as an argument
that Plaintiff was qualified for his position. Further, Plaintiff contends that the drug test was a false
positive because of medication that he was taking. Id. at 1. Plaintiff has stated, and Defendant has

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acknowledged, that he produced a negative test four days after the initial test. Record Documents
48-1, ¶ 18 & 50, p. 1. The Court finds that violating company policy may be a legitimate reason to
discharge an employee; however, it does render the employee unqualified for the position as a
matter of law. See Chambers v. Joseph T. Ryerson & Son, Inc., No. 3:05-CV-1533-D, 2007 WL
1944346, at *4–5 (N.D. Tex. July 2, 2007) (rejecting that being fired for just cause renders an exemployee unqualified); Sandel-Garza v. BBVA Compass Bancshares, Inc., No. 5:18-CV-128, 2020
WL 2309828, at *8 (S.D. Tex. May 7, 2020) (finding that a violation of company policy may be a
legitimate reason to terminate an employee but does not render him unqualified in the ADA
context). 3 Plaintiff has submitted sufficient evidence of his qualifications for the job, including his
almost 10 years of experience with Defendant, to satisfy this element of the prima facie case at the
summary judgment stage.
2. Replacement by Someone Outside of Plaintiff’s Protected Class
Defendant asserts that “Plaintiff’s inability to identify a similarly situated employee who
was treated more favorably dooms his claim that his termination was due to his race.” Record
Document 48-2, p. 14. However, Plaintiff may meet the fourth element by showing disparate
treatment or that he was replaced by somebody outside of his protected class. Defendant concedes

3

Defendant cites to an age and disability discrimination case, Litts v. Sumner Regional Medical
Center, LLC, No. 3:15-CV-133, 2016 WL 4466632 (M.D. Tenn. Aug. 24, 2016), as evidence that
a failed drug test renders an employee unqualified for employment. In Litts, a nurse was discharged
for failing a drug test. Id. at *6. The Court stated that the plaintiff was “not able to establish that she
was qualified for her position, given her admission that the Hospital had a zero tolerance policy for
drug use on the premises and that she had a positive result on an employee drug screen.” Id.
However, this case is not binding on this Court. Instead, the Court chooses to follow the reasoning
in Chambers and Sandel-Garza because the Texas courts did not merge the qualification element
of the prima facie case with the legitimate reason for discharge step. Further, the drug policy of the
present Defendant was not a zero-tolerance policy; rather, the language of Defendant’s substance
abuse policy states that anyone who violates the policy “will be subject to disciplinary action up to
and including discharge.” Record Document 48-4.
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that Plaintiff was replaced by a white employee, and as such, Plaintiff can satisfy the fourth prong
by showing that he was replaced by somebody outside of his protected group. Record Document
48-2, p. 13. As a result, Plaintiff has established a prima facie case of race discrimination. The Court
will now turn to the next step in the McDonnell Douglas framework.
B. Legitimate, Nondiscriminatory Reason for Termination
Now that Plaintiff has established a prima facie case of discrimination, the Court must
determine whether Defendant has produced a legitimate, nondiscriminatory reason for the adverse
employment decision. Methodist Hosp. Sys., 271 F.3d at 219. Defendant asserts that the failed drug
test is a legitimate, nondiscriminatory reason for Plaintiff’s termination. Record Document 48-2, p.
14. Defendant provides evidence in support of this point by including a copy of the drug screening
that produced the failed drug test and Defendant’s substance abuse policy, which provides that a
failed drug test is a terminable offense. Record Documents 48-4 & 48-12. Thus, the Court finds that
Defendant has met its burden of production at the summary judgment stage.
C. Pretext
At this step of the Title VII discrimination analysis, Plaintiff must prove that Defendant’s
given reason for his termination was pretextual and that he was discriminated against because of
his race. Methodist Hosp. Sys., 271 F.3d at 219–20. Since Defendant has produced a legitimate,
non-discriminatory reason for discharging Plaintiff, Plaintiff must substantiate his claim of race
discrimination through evidence capable of proving that discriminatory animus lay at the heart of
the decision to discharge him. Wallace v. Seton Family of Hosps., 777 F. App'x 83, 89 (citing
Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002)). Plaintiff can carry his burden by
offering substantial evidence capable of proving that he was treated differently than similarly
situated employees outside of his protected group or that Defendant’s stated reason for his

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discharge is false or unworthy of credence. Id. (citation omitted). Conclusory statements are not
competent evidence to defeat summary judgment at the pretext stage. Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007).
1. Similarly Situated Employees
Plaintiff attempts to show pretext by identifying two comparators who he alleges received
preferential treatment. “Employees are similarly situated when they ‘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.’” Garcia v. Prof’l Contract Servs., Inc.,
938 F.3d 236, 244 (5th Cir. 2019) (quoting Lee v. Ks. City So. Rwy. Co., 574 F.3d 253, 259–60 (5th
Cir. 2009)). Importantly, the conduct the employer uses to justify the termination must be “nearly
identical” to that of the comparable employee who allegedly received a dissimilar employment
decision. Id.
Plaintiff identifies an employee named Mike as being a comparator. According to Plaintiff,
Mike, who is white, fell off a ladder and hurt his knee while at work but was not required to go to
Work Kare and take a drug test. Record Document 50, p. 1. Here, Plaintiff attempts to show
similarity by showing that a white employee was not sent to Work Kare for a drug test after a
workplace injury. However, Plaintiff has produced no evidence showing that Mike suffered a
comparable injury to Plaintiff and required immediate medical attention or being sent to Work Kare.
Plaintiff has asserted that the injury to his finger was severe and needed—and continues to need—
medical attention. Record Document 19, p. 1. Plaintiff’s conclusory assertion that Mike hurt his
knee is insufficient to defeat summary judgment. As such, Plaintiff has failed to produce evidence
showing that Mike is a similarly situated employee.

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The other employee that Plaintiff identifies as being a comparator is Matthew Thomas.
According to Plaintiff, Thomas, who is white, hit another car while at work. Record Document 50,
p. 1. Plaintiff avers that Thomas walked off the premises and had time to clear his urine before later
returning to take the drug test, which came back negative dilute. Record Documents 48-13, p. 3 &
50, p. 1. Plaintiff claims that Thomas resigned before his drug test results came back but was rehired
not long after. 4 Record Documents 48-13, p. 4 & 50, p. 1.
Here, Plaintiff attempts to show similarity by showing that a white employee received
preferential treatment after violating the company’s drug policy. However, Plaintiff has failed to
show that Thomas engaged in nearly identical conduct as Plaintiff. First, Plaintiff’s drug test was
positive for marijuana, whereas Thomas’s drug test did not produce a positive result for drugs.
Accepting a negative test result, even if it is considered diluted, is not nearly identical conduct to
being fired for a positive drug test result. See Methodist Hosp. Sys., 271 F.3d at 221 (“[T]he conduct
at issue is not nearly identical when the difference between the plaintiff’s conduct and that of those
alleged to be similarly situated accounts for the difference in treatment received from the
employer.”). Second, Plaintiff claims to have suffered a serious physical injury, which required
prompt medical attention, whereas Plaintiff has produced no evidence that Thomas suffered a
physical injury that would have required immediate medical attention. Third, Thomas resigned after
his workplace accident, whereas Plaintiff was terminated after Defendant received Plaintiff’s
positive drug test. The fact that Thomas was later rehired is immaterial because Plaintiff does not
argue that he sought to be rehired. Further, even if Plaintiff sought to be rehired, the difference in

4

The Court notes that there may be possible hearsay issues because Plaintiff appears to be
recounting what other people told him about Thomas without attaching sworn testimony from the
individuals. See Record Document 1-2, pp. 4 & 14. The Court need not resolve this potential issue
because the Court finds that Plaintiff’s comparison fails on the merits.
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drug test results illustrates why Thomas was eligible for rehire but not Plaintiff. Lastly, Plaintiff’s
allegation that Thomas walked off the premises after the accident could be construed as an
allegation that Thomas violated the drug policy by initially refusing to take a drug test or trying to
tamper with his specimen. See Record Document, 48-4. However, Plaintiff was not disciplined for
initially refusing to take a drug test or tampering with his specimen; instead, he was disciplined for
testing positive for marijuana. Although the Court stops short of ruling that these alleged violations
are incomparable, 5 the Court finds that the alleged different violations coupled with the different
drug test results explains why Defendant rehired Thomas, but Plaintiff remained terminated.
Therefore, Plaintiff has not demonstrated that he was treated less favorably than a similarly situated
white co-worker because he was not terminated for conduct that was nearly identical to that of Mike
or Thomas. See Methodist Hosp. Sys., 271 F.3d at 221.
2. Falsity and Discriminatory Animus
Plaintiff attempts to show that Defendant’s proffered reason is false or unworthy of credence
by showing that the drug test was a false positive. In support of this contention, Plaintiff provided
a negative drug test result, which he procured four days after taking the first one. Record Document
50, pp. 4–5. However, even if Plaintiff is correct about the first test being a false positive, “a fired
employee's actual innocence of his employer's proffered accusation is irrelevant as long as the
employer reasonably believed it and acted on it in good faith.” Cervantez v. KMGP Servs. Co. Inc.,
349 F. App'x 4, 10 (5th Cir.2009) (footnote omitted); see also Graham v. Long Island R.R., 230
F.3d 34, 44 (2d Cir. 2000) (“Reasonable reliance by an employer on a laboratory test, even where
misplaced, does not provide any basis for a jury to find pretext.”).

5

The Court need not decide whether the differences in infractions are comparable misconduct by
themselves.
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Here, Plaintiff has produced no evidence showing that Defendant tampered with the results
or had any reason to believe that the test results were inaccurate. Further, a neutral third party
conducted the drug test. Moreover, Defendant did not violate any procedure in executing its
substance abuse policy, which Plaintiff had previously acknowledged and signed. Record
Document 48-7. Plaintiff does argue that Defendant discriminatorily enforced its drug testing
policy. However, as detailed above, Plaintiff has failed to identify a similarly situated white
employee who was not terminated for producing a positive drug test result. To the contrary,
Defendant has provided evidence, which Plaintiff did not contest, that Defendant has discharged
white employees for failing a drug or alcohol test. Record Document 48-13, ¶ 19. Plaintiff’s
conclusory allegations are insufficient to defeat summary judgment on this matter. As such, there
is no evidence for the Court to conclude that Defendant’s reliance on the initial drug test was pretext
for racial discrimination.
Even if Plaintiff could show that Defendant’s proffered reason was false, Plaintiff still must
prove that discrimination was the reason for his termination. See St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 516–17 (1993) (“But a reason cannot be proved to be a pretext for discrimination
unless it is shown both that the reason was false, and that discrimination was the real reason” for
the termination.) (emphasis in original) (internal quotes omitted). Stated another way, “[i]t is not
enough . . . to dis believe the employer; the factfinder must believe the plaintiff’s explanation of
intentional discrimination.” Id. at 519 (emphasis in original). In Reeves v. Sanderson Plumbing
Products, Inc., the United States Supreme Court explained that, although a trier of fact may infer
that discrimination occurred if an employer’s explanation is shown to be false, such a finding is not
required. 530 U.S. 133, 147 (2000). The Court stated that there would inevitably be circumstances
where “although the plaintiff has established a prima facie case and set forth sufficient evidence to

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reject defendant’s explanation, no rational factfinder could conclude that the action was
discriminatory.” Id. at 148.
After reviewing the record for evidence that supports Plaintiff’s claim of racial
discrimination, the Court concludes that this is not a case of discrimination. Aside from disparate
treatment, Plaintiff’s only other argument as to pretext 6 is that he felt like he was discriminated
against at a company-sponsored half-time event during a basketball game. 7 Record Document 19,
p. 2. Plaintiff alleges that in 2014 he was selected to participate in some half-time contest that
required throwing and catching hot dogs. Id. Plaintiff claims that this embarrassed him in front of
his family and that one of his supervisors made a sexual remark to him the next day about hot dogs.
Id. However, Plaintiff offers no evidence that his selection for this event was racially
discriminatory. Further, the alleged inappropriate remark is considered a stray remark and not
evidence of discrimination because the person who selected him for the event and who made the
remark was not responsible for discharging Plaintiff, nor is there any evidence that this person had
any influence over the person who made the decision to terminate Plaintiff. See Ray v. United Parcel
Serv., 587 F. App’x. 182, 195–96 (5th Cir. 2014). 8

6

In his opposition, Plaintiff also complains about not being reimbursed for the use of his personal
truck at work. Record Document 50, p. 1. The Court declined to exercise supplemental jurisdiction
over this claim and dismissed it without prejudice for a lack of subject matter jurisdiction. See
Record Document 33, p. 6. Plaintiff may attempt to seek relief on his state law claims in another
court but not this federal court. To the extent that Plaintiff may be arguing that the failure to
reimburse him for the use of his personal truck or the failure to provide company transportation is
evidence of racial discrimination, the Court finds that Plaintiff has failed to produce any evidence
or argument where the Court could infer racial discrimination from the alleged conduct.
7
Plaintiff does not mention this event in his opposition. However, the Court will address it for the
sake of thoroughness.
8
Defendant argues for the Court to use the stricter standard for analyzing this remark. The stricter
standard is used primarily to prove direct discrimination. Ray, 587 F. App’x. at 195. It requires the
comment to be “1) related [to the protected class of persons of which the plaintiff is a member]; 2)
proximate in time to the [complained-of adverse employment decision]; 3) made by an individual
with authority over the employment decision at issue; and 4) related to the employment decision at
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Based on the above findings, the Court finds that Plaintiff has failed to meet his burden at
the pretext stage. To survive summary judgment, Plaintiff must produce sufficient evidence for a
reasonable jury to find either that a discriminatory reason more likely motivated Defendant’s
decision to terminate Plaintiff or that Defendant’s explanation for his termination is unworthy of
credence. Taylor v. Seton Brackenridge Hosp., 349 F. App’x 874, 878 (5th Cir. 2009) (per curiam)
(citing Reeves, 530 U.S. at 143). Here, Plaintiff has produced no evidence of racial discrimination.
Plaintiff’s circumstantial evidence expressing his belief that the initial drug test was a false positive
and that Defendant showed favoritism to certain white employees does nothing to show that
Defendant’s proffered reason for Plaintiff’s termination is merely a pretext for discrimination.
Further, Plaintiff’s subjective belief that he was discriminated against at a company event is
insufficient to defeat summary judgment. “[A] subjective belief of discrimination, however
genuine, may not be the basis of judicial relief.” Lawrence v. Univ. of Tex. Med. Branch at
Galveston, 163 F.3d 309, 313 (5th Cir. 1999) (internal quotation marks and citation omitted).
Because a subjective belief of racial discrimination is all that Plaintiff has been able to establish in
this case, Defendant’s Motion for Summary Judgment [Record Document 48] is hereby
GRANTED as to Plaintiff’s Title VII race discrimination claim. This claim is hereby DISMISSED
WITH PREJUDICE.

issue.” Id. at 196 (internal quotation marks and citation omitted). On the other hand, the morelenient standard applies in cases with other circumstantial evidence of discrimination. Id. at 195.
The more-lenient standard only requires for the plaintiff to “show (1) discriminatory animus (2) on
the part of a person that is either primarily responsible for the challenged employment action or by
a person with influence or leverage over the relevant decisionmaker.” Id. The Court need not decide
what standard to use in this case because the remark does not satisfy either standard.
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II. Age Discrimination
Plaintiff’s age discrimination claim is governed by the Age Discrimination in Employment
Act of 1967 (“ADEA”). Under the ADEA, “[i]t shall be unlawful for an employer . . . to discharge
any individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. §
623(a)(1). Like a race discrimination claim, a claim of age discrimination uses the McDonnell
Douglas framework when a plaintiff’s claim is not based on direct evidence of discrimination.
Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 377–78 (5th Cir. 2010).
A. Plaintiff’s Prima Facie Case
A prima facie case of age discrimination involves similar elements to race discrimination,
requiring a plaintiff to show that: “(1) he was discharged; (2) he was qualified for the position; (3)
he was within the protected class at the time of discharge; and (4) he was either i) replaced by
someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged
because of his age.” Id. at 378 (quoting Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir.
2007)). The parties do not dispute that Plaintiff was discharged and was within a protected class.
The parties dispute whether Plaintiff was qualified for his position and replaced by a younger
employee.
1. Qualified for His Position
Defendant advances the same argument here as it did for race discrimination. For the reasons
detailed in Part I.A.1, the Court rejects Defendant’s argument that allegedly failing a drug test
rendered him unqualified for the position. Although violating the company’s substance abuse policy
may be a legitimate reason to terminate an employee, it does not render him unqualified as a matter
of law. Plaintiff produced evidence that he has been working for Defendant in a maintenance-related

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capacity for almost 10 years at the time of his discharge. As such, Plaintiff has met his burden at
the summary judgment stage.
2. Replacement by Younger Employee
Plaintiff’s sole argument as it pertains to age discrimination is that he was replaced by a
younger employee. Record Document 1-2, p. 15. In Plaintiff’s initial complaint, Plaintiff states that
a younger employee named Mike replaced him. Id. However, Plaintiff has provided no additional
evidence for this assertion. Further, Plaintiff has appeared to of abandoned this argument in his
amended complaint and opposition. See Record Documents 19 & 50 (making no specific argument
as to age discrimination or an employee named Mike replacing him). Defendant has produced
contrary evidence showing that Plaintiff was in fact replaced by two older employees. Record
Document 48-13, p. 2. Plaintiff cannot create a genuine dispute of material fact by making
conclusory allegations. See Turner, 476 F.3d at 345. The burden was on Plaintiff to come forward
with or to identify in the record competent summary judgment evidence to create a genuine dispute
of material fact that he was replaced by somebody younger or was otherwise discharged because of
his age. Plaintiff has not done so, and as such, Plaintiff has not established a prima facie case of age
discrimination.
B. Legitimate, Nondiscriminatory Reason for Termination & Pretext
Assuming arguendo that Plaintiff could establish a prima facie case of age discrimination,
the burden shifts to the Defendant to produce a legitimate, nondiscriminatory reason for his
termination. See Goudeau v. National Oilwell Varco, L.P., 793 F.3d 470, 474 (5th Cir. 2015).
Defendant’s proffered reason for termination was that Plaintiff failed a drug test after a workplace
injury. For the reasons detailed in Part I.B, the Court finds that Defendant has met his burden of
production by showing a legitimate, nondiscriminatory reason for termination.

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Because Defendant has produced a legitimate, nondiscriminatory reason for termination,
the burden shifts back to Plaintiff to “prove that the legitimate reason[] offered by the defendant
[was] not its true reason[], but [was] pretext for discrimination.” Id. at 476 (internal quotation marks
and citation omitted). “The ADEA . . . requires a showing of ‘but-for’ causation.” Id. at 475 (citation
omitted). Plaintiff has produced no evidence of age discrimination to meet this standard. In fact, the
Court finds that Plaintiff has abandoned his argument about age discrimination by not making a
specific argument regarding it in his amended complaint or opposition. See Sandel-Garza, 2020
WL 2309828, at *13.
Even if his claim is not abandoned, Plaintiff has advanced the same pretext argument as his
race discrimination claim. For the same reasons outlined in Part I.C, the Court finds that Plaintiff
has failed to come forward with any evidence to show that age was the reason for his termination
and not the failed drug test. As such, Defendant’s Motion for Summary Judgment [Record
Document 48] is hereby GRANTED as to Plaintiff’s age discrimination claim. This claim is hereby
DISMISSED WITH PREJUDICE.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment [Record Document
48] is GRANTED. Plaintiff’s race and age discrimination claims are hereby DISMISSED WITH
PREJUDICE.
A judgment consistent with this Memorandum Ruling will be issued herewith.
THUS DONE AND SIGNED this 15th day of February, 2021.

ELIZABETH E. FOOTE
UNITED STATES DISTRICT JUDGE

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