Cassimere v. Fastorq L L C et al
MEMORANDUM RULING re 37 MOTION for Summary Judgment filed by Fastorq L L C. Signed by Magistrate Judge Patrick J Hanna on 03/01/2017. (crt,Williams, L)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LEON CASSIMERE, JR.
*CIVIL NO. 6:15-2352
*MAGISTRATE JUDGE HANNA
*BY CONSENT OF THE PARTIES
Pending before the Court is a Motion for Summary Judgment filed by Fastorq,
LLC ("Fastorq"). [rec. doc. 37]. Plaintiff, Leon Cassimere, Jr. (“Cassimere”), has filed
Opposition [rec. doc. 441], to which Fastorq has filed a Reply [rec. doc. 41].
For the reasons set forth below, the Motion for Summary Judgment is granted in
Cassimere, an African American male, brought this race discrimination,
harassment and retaliation action asserting federal claims under 42 U.S.C. § 2000e-5,
Title VII of the Civil Rights Act of 1964 (as amended).2
Cassimere initially filed Opposition on January 16, 2017. However, the pleading was deemed
deficient. [rec. doc. 39]. The pleading was re-filed on January 27, 2014 with the required corrections as
document 44. Exhibits were separately re-filed as document 45.
Plaintiff additionally cites Louisiana Revised Statute 23:332 of the Louisiana antidiscrimination statutes. Louisiana courts have applied federal Title VII jurisprudence when interpreting
the Louisiana anti-discrimination statutes because Louisiana state law claims are mirror images of federal
claims. Motton v. Lockheed Martin Corp., 900 So.2d 901, 909 (La. App. 4th Cir.), writ denied, 904 So.2d
704 (2005); Craven v. Universal Life Ins. Co., 670 So.2d 1358, 1362 (La. App. 3rd Cir. 1996); Devillier v.
In his Complaint, Cassimere alleges that during his employment with Fastorq, he
was subjected to a discriminatory pay practice in that he received less wages than
comparable non-African American employees and was issued disciplinary write-ups
following job location complaints, while non-African American employees were not. In
his deposition, Cassimere identified Robert Garcia as the comparable white employee
who received better pay. Cassimere additionally alleges that Fastorq retaliated against
him for filing a complaint with the EEOC. Finally, Cassimere alleges that Fastorq
fired him on June 9, 2015 stating that his position was being eliminated due to a
reduction in work force, when in fact, he was actually replaced by a white employee. In
his deposition, Cassimere identified Mike Jones as the comparable white employee he
Fidelity & Deposit Co. of Md., 709 So.2d 277, 280 (La. App. 2nd Cir. 1998); Wyerick v. Bayou Steel
Corp., 887 F.2d 1271, 1274 (5th Cir. 1989); Glover v. Smith, 478 Fed. Appx. 236, 244 (5th Cir. 2012)
citing DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007). Such claims are therefore analyzed under
the same standards applicable to Title VII claims. Glover and DeCorte, supra.; Nichols v. Lewis Grocer,
138 F.3d 563, 566-567 (5th Cir. 1998); Deloach v. Delchamps, Inc., 897 F.2d 815, 818 (5th Cir. 1990).
Thus, summary judgment on plaintiff's claim under the Louisiana anti-discrimination statute is granted
for the reasons set forth herein with respect to plaintiff’s federal Title VII claims.
Plaintiff likewise cites 42 U.S.C. § 1981. Like Title VII, 42 U.S.C. § 1981 also prohibits
employment discrimination on the basis of race. Johnson v. Railway Express Agency, 421 U.S. 454,
459–60, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Claims of race-based discrimination brought under §
1981 are governed by the same framework and same standard of proof applicable to claims of
employment discrimination brought under Title VII. See Harrington v. Harris, 118 F.3d 359, 367 (5th
Cir.1997) citing LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996); Roberson v.
Alltel Info. Services, 373 F.3d 647, 651 (5th Cir. 2004). Moreover, “[i]t is the rule of [the Fifth Circuit]
that consideration of an alternative remedy brought under § 1981 is necessary only if its violation can be
made out on grounds different from those available under Title VII.” Page v. U.S. Indus., Inc., 726 F.2d
1038, 1042 n. 2 (5th Cir. 1984). Because Cassimere has not alleged facts of intentional racial
discrimination distinct from those necessary to allege a Title VII cause of action, and because the same
framework and standard of proof are applicable, summary judgment on plaintiff's employment
discrimination claims under § 1981 is properly granted for the same reasons summary judgment on
Cassimere's racial discrimination claims under Title VII are granted.
believes replaced him. Cassimere alleges that he filed a complaint with the EEOC on
May 28, 2015. On June 24, 2015, the EEOC rendered a no probable cause
determination and issued a right to sue letter. This lawsuit was filed on September 10,
Fastorq contends that Cassimere’s discriminatory pay practice claim, retaliation
for filing an EEOC charge and discriminatory termination based on race claims, as well
as Cassimere's un-plead claim that he was not assigned jobs based on his race, have not
been administratively exhausted by proper presentation to the EEOC. Fastorq further
asserts that Cassimere failed to properly plead numerous instances of discrimination in
his Complaint, which are therefore subject to dismissal. Fastorq contends that
Cassimere's race discrimination claims fail because he has not established a prima facie
case of discrimination, or alternatively, that Cassimere’s disciplinary write ups and
termination were based solely on legitimate non-discriminatory reasons, namely, his
unsatisfactory work performance and a reduction in work force, respectively.
In opposition, Cassimere argues that he "believes his termination was retaliation
against him for filing the charge of discrimination with the EEOC", that he "believes he
was discriminated against on his job because of his race" and that "[h]e feels that he
was terminated from his job at Fastorq in retaliation for reporting those claims."
Cassimere additionally asserts that he is "simply acting on his right to sue “. In support
of these arguments, Cassimere submits the same pages from his deposition that were
submitted by Fastorq in support of summary judgment and the determination and right
to sue letter issued by the EEOC with respect to EEOC charge 1289.
Summary Judgment Standard
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is
mandated when the movant shows there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law. Am. Home Assurance Co. v.
United Space Alliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004); Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if proof of its
existence or nonexistence might affect the outcome of the lawsuit under the applicable
law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Minter v.
Great American Insurance Co. of New York, 423 F.3d 460, 465 (5th Cir. 2005). A
genuine issue of material fact exists if a reasonable jury could render a verdict for the
nonmoving party. Thorson v. Epps, 701 F.3d 444, 445 (5th Cir. 2012).
The party seeking summary judgment has the initial responsibility of informing
the court of the basis for its motion, and identifying those parts of the record that it
believes demonstrate the absence of genuine issue of material fact. Washburn v.
Harvey, 504 F.3d 505, 508 (5th Cir. 2007). If the moving party carries its initial burden,
the burden shifts to the nonmoving party to demonstrate the existence of a genuine
issue of a material fact. Id. In such a case, the non-movant may not rest upon the
allegations in his pleadings, but rather must go beyond the pleadings and designate
specific facts demonstrating that there is a genuine issue for trial. Celotex v. Catrett,
477 U.S. at 325. All facts and justifiable inferences are construed in the light most
favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S.
574, 587 (1986).
If the dispositive issue is one on which the nonmoving party will bear the burden
of proof at trial, the moving party may satisfy its burden by pointing out that there is
insufficient proof concerning an essential element of the nonmoving party's claim.
Norwegian Bulk Transport A/S v. International Marine Terminals Partnership, 520
F.3d 409, 412 (5th Cir. 2008). The motion should be granted if the non-moving party
cannot produce sufficient competent evidence to support an essential element of its
claim. Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 197 (5th Cir. 2005). However,
metaphysical doubt as to the material facts, conclusory allegations, unsubstantiated
assertions and those supported by only a scintilla of evidence are insufficient. Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
In an employment discrimination case, the focus is on whether a genuine issue
exists as to whether the defendant intentionally discriminated against the plaintiff.
Grimes v. Texas Department of Mental Health and Mental Retardation, 102 F.3d 137,
139 (5th Cir. 1996) (and cases cited therein); Lawrence v. Univ. of Tex. Med. Branch at
Galveston, 163 F.3d 309, 312 (5th Cir. 1999). As in any case, unsubstantiated assertions
and conclusory allegations are not competent summary judgment evidence. Grimes, 102
F.3d at 139; Lawrence, 163 F.3d at 312; Hervey v. Mississippi Dept. of Educ., 404
Fed.Appx. 865, 870 (5th Cir. 2010) citing Ramsey v. Henderson, 286 F.3d 264, 269 (5th
Cir.2002) (“conclusory allegations, speculation, and unsubstantiated assertions are
inadequate to satisfy the nonmovant's burden on a motion for summary judgment”); See
also Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (an
employee's self-serving generalized testimony stating his subjective belief that
discrimination occurred is insufficient to support a jury verdict); Tamuno v. KFC USA,
Inc., 176 F.3d 480 (5th Cir. 1999) citing Little v. Republic Refining Co., Ltd., 924 F.2d
93, 96 (5th Cir.1991) quoting Elliot v. Group Medical & Surgical Servs., 714 F.2d 556,
567 (5th Cir.1983) (plaintiff's affidavit and deposition in the absence of other
admissible evidence insufficient to defeat summary judgment). In response to a motion
for summary judgment, it is therefore incumbent upon the non-moving party to present
evidence - not just conjecture and speculation - that the defendant retaliated and
discriminated against plaintiff on the basis of his race. Grimes, 102 F.3d at 140.
Cassimere was hired by Fastorq on December 2, 2010. He was promoted to
Supervisor II on September 8, 2014, making $23.00 per hour. At the time of his June 9,
2015 termination Cassimere was a Supervisor II. The reason given for his termination
was “reduction in force.”
Cassimere received three Employee Warning Reports dated April 17, 2014, May
8, 2014 and a combined report for location complaints on December 18, 2014 and
January 27, 2015, respectively. Cassimere provided a written response to each.
The April 17, 2014 report states that in response to a question posed by the
branch manager as to why Cassimere did not show up to help unload a job, Cassimere
yelled at the branch manager and the district manager several times, actions considered
insubordinate and unprofessional. The corrective action states that Cassimere was
advised that yelling at anyone at work would not be tolerated, and that Cassimere
should maintain a professional attitude and tone when addressing anyone at work.
Cassimere's written response states that both he and the branch manager apologized for
their respective behaviors, and that "an understanding had been reached." Cassimere
additionally denied that he was asked to come to work that day.
The May 8, 2014 report states that a customer complained that Cassimere did not
know how to perform a "stump test", he had a bad attitude, he did not fill out test charts
properly and overcharged on the invoice. As a result, the customer requested that
Cassimere not go back to that job location. The corrective action states that Cassimere
should provide the highest level of customer service possible when on a customer's
location and that a professional attitude should be maintained. He was asked to fill out
all test reports completely. Cassimere was also advised that if a rest after completing a
job is needed, "please do so", but that rest time should not be charged back to the
Cassimere's response states that "by refusing to comply with this particular
company representative and his toolpusher's demands" he did his "job correctly; as
trained; and as mandated by federal and state laws . . . ." Cassimere additionally stated
that during his employ with Fastorq no other company representative had said that
Cassimere did not know how to do his job and that it was difficult for Cassimere to
believe that Fastorq would believe the company representative over him.
The December 18, 2014 incident states that Cassimere was asked to help the rig
hands using hammer wrenches, to which Cassimere stated that the customer did not
want the men to "swing a hammer" as that was a safety issue. He additionally stated
that "Leon don't swing no hammer" and that this was an "STX problem that our
equipment went down not his." When the customer was asked if he asked the men not
use hammer wrenches, the customer said he never told the workers that. The customer
additionally stated that due to Cassimere's lie and attitude, Cassimere was not welcome
back to the job location. The corrective action states that Cassimere was taken off the
job and informed that this type of conduct would not be tolerated.
Cassimere responded that two co-employees assured him that the Fastorq
equipment had been QCed, but on location the unit was not functional. Accordingly,
Cassimere "approached the BHP company representative to attempt a tactful
explanation of our dilemma" suggesting the use of a hammer wrench, to which the
company representative "retorted angrily" that he did not "call Fastorq out on my
location to use hammer wrenches." Cassimere apologized to the company
representative and assured him Fastorq would rectify the situation as fast as possible.
According to Cassimere’s response, Fastorq was later replaced by a competitor because
BHP refused to continue to tolerate equipment failures, not because of anything
Cassimere did. Cassimere additionally noted that the two employees tasked with the
responsibility to ensure the equipment is ready are "celebrated with promotions while I
receive an employee warning." Finally, Cassimere stated that he worked at the BHP
location after this incident on January 18, 2015 and January 19, 2015.
The January 27, 2015 incident states that Cassimere refused to go to a job
location for an 8 hour day guarantee, but instead would only go for a 12 hour day
guarantee. He later changed his mind. The report states that Cassimere or any other
employee "cannot dictate company established guarantees." The corrective action
states that Cassimere was taken off the rotation for that job due to his attitude.
Cassimere's response was that the branch manager’s version of the conversation was
different than his and that he would be willing "to take a polygraph test to prove what
truly took place."
In February 2015, Cassimere filed a complaint with the Human Resources
Department alleging race discrimination evidenced by a lack of consistency in
disciplinary actions. In support, Cassimere provided the above reports along with his
written responses. Elenor Duckens, the Human Resource Compliance Specialist
investigated Cassimere's complaint from its receipt on February 23, 2015 through May
14, 2015. Her investigation included review of the four employee warning reports
submitted by Cassimere, as well as Cassimere's responses, and the conduct of
employee interviews. In her affidavit submitted in support of this motion, Ms. Duckins
attests that her investigation revealed no evidence to substantiate Cassimere's
complaints in that both African American and non-African American employees were
disciplined by Fastorq for violations of company policies. Cassimere was emailed these
results on May 20, 2015.
On May 22, 2015, Teddy A. Blanchard, Jr., former operations manager for
Fastorq received email notice from the Fastorq general manager Todd Delahoussaye
that a third round of layoffs would occur at Fastorq.3 In his affidavit submitted in
support of this motion, Mr. Blanchard attests that objective criteria were used to
determine the employees who would be released in this third round of layoffs.
On May 28, 2015, Cassimere completed an intake questionnaire in support of his
EEOC charge, assigned number 461-2015-01289 ("EEOC charge 1289"), alleging race
The email states "We are unfortunately looking at options for another round if needed."
discrimination and retaliation. In support of his claim Cassimere cited four Caucasians
holding the job title of "Tech", who Cassimere believed were treated better than him,
that is, who did not receive disciplinary action for drinking alcohol in company
vehicles, speeding tickets in a company vehicle and 3rd offense DUI. Based on these
instances, Cassimere stated his belief that he was being "targeted for termination based
on race." None of the individuals involved in the vehicle offenses were Supervisor IIs
as was Cassimere. Rather, they were employed as Technician I, Technician IV,
Supervisor I and Technician, respectively. Further, each position encompassed
different duties and skills.
The sole allegation contained in EEOC charge 1289 reads as follows:
On December 18, 2014, and January 27, 2015, I was
wrongfully given an employee warning report by Mr. Justin
Davis, Assistant Manager. He claims that I was no longer
welcome back by the BHP representative of the job site,
which is false, because I supervised that particular job site on
January 18, 2015 and January 19, 2015 and worked with BHP
representatives, which you can see in my work tickets. On
January 27, 2015, I again was falsely written up for something
I did not do by Mr. Davis.
I believe that I have been discriminated against because of my
race, Black, and retaliated against in violation of Title VII of
the Civil Rights Act of 1964, as amended.
Although the April and May 2014 Employee Warning Reports were not
mentioned in the charge, in his deposition, Cassimere testified that he provided all of
the Employee Warning Reports to the EEOC. Fastorq received notice of EEOC charge
1289 on or about June 9, 2015.
On June 24, 2015, the EEOC issued a determination on EEOC charge 1289.
Based on its investigation, the EEOC was unable to conclude that a violation of the
discrimination statutes had occurred. That same date, Cassimere was issued a right to
On June 27, 2015, Cassimere filed a second charge with the EEOC which was
assigned number 461-2015-01420 ("EEOC charge 1420"). In this charge Cassimere
alleged discriminatory termination based on race and retaliation for filing EEOC charge
1289. The allegations contained in EEOC charge 1420 are as follows:
On June 2, 2015, I filed an EEOC charge of discrimination
because of unfair treatment due to race and retaliation. On
June 9, 2015, I was informed by Stephen Kirsch of Human
Resources that I was discharged because the company was
experiencing financial difficulties due to a lack of work.
Several days after filing a charge of discrimination, I emailed
Teddy Blanchard, Operations Manager requesting a copy of
my personnel file. On June 4, 2015, I received a response
from Mr. Blanchard stating that my request was denied.
I believe that I was discriminated against in that I was
discharged due to my race (black) and in retaliation for filing
a previous EEOC charge (No. 461-2015-01289) in violation
of Title VII of the Civil Rights Act of 1964, as amended.
To date, the EEOC has not issued a determination on EEOC charge 1420.
In his deposition, although not set forth in his Complaint or in his EEOC charges,
Cassimere asserted additional allegations of discrimination. These allegations include
that former Branch Manager Roland Fernandez told Cassimere that Fastorq had a "hit
list" of black employees they wanted to get rid of, that when company representatives
would request Cassimere for work that Fastorq would send Caucasian employee Robert
Garcia to the job location, and that meetings with management were discriminatory in
nature. In responses to discovery, Cassimere did not list Robert Garcia or any company
representatives as having knowledge of this case. Although Cassimere identified three
company representatives who he claims requested himspecifically, Cassimere was
unable to recall any dates, locations, jobs or projects on which these company
representatives had requested his services. Finally, Cassimere identified "questioning
about other projects" during management meetings as discriminatory.
Fastorq assigned jobs based on objective criteria to satisfy customer
requirements. The process included a formal rotation program based on the employee's
top task level. An employee list was compiled based on the employee's completed craft
training and task required for the specific job. The list could be altered based on
customer requests for a particular employee, customer refusals to work with an
employee and customer requirements that the employee arrive on a job site within a
certain time frame.
LAW AND ANALYSIS
Exhaustion of Administrative Remedies
A Title VII plaintiff must file a timely charge with the EEOC before he can commence a civil
action under Title VII in federal court. 42 U.S.C. § 2000e-5(e)(1), (f)(1)4; Nat’l RR Passenger Corp. v.
Morgan, 536 U.S. 101, 109 (2002); Dao v Auchan Hypermarket, 96 F. 3d 787, 789 (5th Cir. 1996).
Although filing an EEOC charge is not a jurisdictional prerequisite, it “is a precondition to filing suit in
district court.” Dao, 96 F.3d at 789. It is equally well settled that a civil action may not be
commenced until after the charging party has received a “right-to-sue” letter from the EEOC. 42 U.S.C.
§ 2000e–5(f)(1); Nilsen v. City of Moss Point, Miss., 621 F.2d 117, 120 (5th Cir. 1980); see also
Alexander v. Gardner–Denver Co., 415 U.S. 36, 47, (1974) (noting the "prerequisites that an individual
must satisfy before he is entitled to institute a lawsuit" . . . (1) fil[ing] timely a charge of employment
discrimination with the Commission, and (2) receiv[ing] and act[ing] upon the Commission's statutory
notice of the right to sue. . .").
The scope of the charging party's subsequent right to institute a civil suit is fixed such that the
EEOC charge may be enlarged only by such investigation as reasonably proceeds therefrom. National
Association of Government Employees v. City Public Service Board of San Antonio, Tx, 40 F.3d 698,
711-712 (5th Cir. 1994). Thus, the suit which is subsequently filed may encompass only "the
discrimination stated in the charge itself or developed in the course of a reasonable [EEOC]
investigation of that charge." Id. at 712 citing 2 Larson, Employment Discrimination § 49.11(c)(1) at
9B–16 (“if an [EEOC] investigation has actually been conducted, most courts hold that the scope of the
complaint is limited to the actual scope of the investigation”). Stated differently, the scope of a Title
Section 2000e-5(e)(1) provides in pertinent part: “A charge under this section shall be filed
within one hundred and eighty days after the alleged unlawful employment practice occurred . . . .” §
VII action “is limited to the scope of the EEOC investigation which can reasonably be expected to
grow out of the charge of discrimination.” Young v. City of Houston, Tx., 906 F.2d 177, 179 (5th Cir.
Fastorq contends that Cassimere has not exhausted administrative remedies with respect to
those claims contained in EEOC charge 1420 because he has not yet received a right-to-sue letter.
Cassimere does not claim that he has received, nor has he presented this Court with, a right-to-sue
letter from the EEOC with respect to EEOC charge 1420. Accordingly, summary judgment on
Cassimere's Title VII claims for retaliation for the filing of an EEOC charge, discriminatory
termination based on race and Fastorq's refusal to produce Cassimere's personnel file is properly
granted for failure to exhaust administrative remedies.
Fastorq additionally contends that Cassimere's unequal pay claim and unplead claim that he was
not assigned various jobs for discriminatory reasons has not been properly exhausted. Cassimere
presents no argument regarding these contentions, nor has be presented this Court with any evidence to
dispute that presented by Fastorq. It is undisputed that Cassimere did not include either of these factual
allegations in either of his EEOC charges. While Cassimere set forth a disparate treatment claim
before the EEOC in charge 1289, the sole factual allegation in support of that claim concerned
discrimination in the issuance of disciplinary reports. In the absence of any evidence to the contrary
presenting a material fact issue, the Court finds that Cassimere's unequal pay claim and claim that he
was not assigned various jobs for discriminatory reasons cannot reasonably be expected to have grown
out of Cassimere's administrative charge. These are distinct and wholly unrelated factual allegations
from those presented to the EEOC.
This Court's conclusion is bolstered by Cassimere's deposition testimony in which he admitted
that he did not include anything in his EEOC charge about the difference in wages between him and
Mr. Garcia. Although Mr. Garcia is the focus of both of these claims, there is no evidence that
Cassimere ever mentioned Mr. Garcia to the EEOC. To the contrary, Cassimere identified four other
Caucasian employees in his intake questionnaire, none of whom were Mr. Garcia. Thus, summary
judgment for failure to administratively exhaust these claims is properly granted.
Fastorq additionally contends that Cassimere's unplead allegation regarding the existence of a
"hit list" should be dismissed for failure to exhaust administrative remedies. Given the absence of
evidence to the contrary, the Court agrees with Fastorq that this factual allegation was never presented
to the EEOC for investigation. Moreover, it does not appear to this court that this factual allegation
could reasonably be expected to have "grow[n] out of the charge of discrimination” filed by Cassimere.
Young, 906 F.2d at 179. On the record before this Court it is clear that the EEOC was only
investigating whether Fastorq was engaged in a pattern of disparate treatment of black employees in the
issuance of disciplinary reprimands. Therefore, summary judgment is proper as to the claims regarding
the “hit list” that were never put forth in an EEOC claim or the complaint in this case.
The Title VII Claims in Charge 1289
Title VII prohibits employers from discriminating against employees on the basis of race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e–2(a). “The Title VII inquiry is whether the
defendant intentionally discriminated against the plaintiff.” Alvarado v. Texas Rangers, 492 F.3d 605,
611 (5th Cir. 2007). A plaintiff can prove Title VII discrimination through direct or circumstantial
evidence. Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 345 (5th Cir. 2007); Alvarado,
492 F.3d at 611. Direct evidence of an employer's discriminatory intent is rare; therefore, Title VII
plaintiffs must ordinarily prove their claims through circumstantial evidence. Rhodes v. Guiberson Oil
Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc).
Where there is no direct evidence of discrimination, Title VII claims are analyzed using the
framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Paske v. Fitzgerald, 785 F.3d 977, 984 (5th Cir. 2015). A Title VII plaintiff bears the initial
burden to prove a prima facie case of discrimination by a preponderance of the evidence. Shackelford
v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999) citing McDonnell Douglas, 411 U.S. at
To establish a prima facie case of disparate treatment racial discrimination, the plaintiff must
provide evidence that: "(1) he is a member of a protected class, (2) he was qualified for the position at
issue, (3) he was the subject of an adverse employment action, and (4) he was treated less favorably
because of his membership in that protected class than were other similarly situated employees who
were not members of the protected class, under nearly identical circumstances." Paske, 785 F.3d at
985 quoting Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
The prima facie case, once established, raises a presumption of discrimination, which the
defendant must rebut by articulating a legitimate, nondiscriminatory reason for its actions.
Shackelford, 190 F.3d at 404. If the defendant satisfies this burden, the presumption of discrimination
raised by the prima facie case disappears, and the plaintiff is left with the ultimate burden of proving
discrimination. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). The plaintiff
may satisfy this burden by producing "substantial evidence" which proves that the proffered reasons are
pretextual. Id.; Shackelford, 190 F.3d at 404. The plaintiff must put forward evidence rebutting each of
the nondiscriminatory reasons the employer articulates. Wallace v. Methodist Hospital System, 271
F.3d 212, 220 (5th Cir. 2001). “Evidence that the proffered reason is unworthy of credence must be
enough to support a reasonable inference that the proffered reason is false; a mere shadow of doubt is
insufficient.” Auguster vs. Vermilion Parish School Board, 249 F.3d 400, 403 (5th Cir 2001). The Fifth
Circuit has "consistently held that an employee's 'subjective belief of discrimination' alone is not
sufficient to warrant judicial relief.” Auguster, 249 F.3d at 403 citing Bauer v. Albemarle Corp., 169
F.3d 962, 967 (5th Cir. 1999).
Fastorq argues that Cassimere has not presented a prima facie case of race discrimination based
on the issuance of disciplinary write-ups which non-African American employees allegedly did not
receive. The Court agrees.
To establish a discrimination claim under Title VII, a plaintiff must prove that he was subject to
an “adverse employment action”—a judicially-coined term referring to an employment decision that
affects the terms and conditions of employment. Pegram v. Honeywell, Inc., 361 F.3d 272, 281–82
(5th Cir. 2004); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006) (the language of
Title VII's anti-discrimination provision “explicitly limit[s] the scope of that provision to actions that
affect employment or alter the conditions of the workplace”)5.
In the context of Title VII discrimination claims, adverse employment actions consist of
“ultimate employment decisions” such as hiring, firing, demoting, promoting, granting leave, and
compensating. McCoy v. City of Shreveport, 492 F.3d 551, 560 (5th Cir. 2007); Alvarado, 492 F.3d at
605; Pegram, 361 F.3d at 282. “[A]n employment action that ‘does not affect job duties, compensation,
or benefits' is not an adverse employment action.” Pegram, 361 F.3d at 282; see also Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 764 (1998) (a “tangible employment action that constitutes a significant
change in employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.”).
The Supreme Court explained that an adverse employment action in the retaliation
context is somewhat broader. Burlington N., 548 U.S. at 68.
Title VII does not cover “every decision made by employers that arguably might have some
tangential effect upon those ultimate decisions.” Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d
570, 575 (5th Cir. 2003). Allegations of unpleasant work meetings and verbal reprimands do not
constitute actionable adverse employment actions. King v. Louisiana, 294 Fed.Appx. 77, 85 (5th Cir.
2008) citing Burlington Northern, 548 U.S. at 68); see also Liddell v. Northrop Gumman Shipbuilding,
Inc., 836 F. Supp. 2d 443, 457 (S.D. Miss. 2011) (disciplinary slip placed in personnel file that did not
result in any type of reduced wages, terminations, or layoffs, or any other ultimate employment action
are not actionable under Title VII).
In this case, Cassimere has supplied no competent summary judgment evidence which creates a
material issue of fact that any disciplinary write ups he received, which non-African Americans
employees allegedly did not receive, affected the terms and conditions of employment thereby
constituting an ultimate employment action.
In addition, Cassimere has not presented competent summary judgment evidence which creates
a material issue of fact that he was treated less favorably than any similarly situated non-African
American employee with respect to disciplinary write ups. The cases of alleged preferential treatment
cited by Cassimere in his EEOC charge do not involve nearly identical circumstances or conduct to that
engaged in by Cassimere, but rather involved completely different alleged violations of company
policy. See Paske, 785 F.3d at 985; Okoye, 245 F.3d at 514 ("to establish disparate treatment a plaintiff
must show that the employer gave preferential treatment to another employee under nearly identical
circumstances; that is, that the misconduct for which the plaintiff was discharged was nearly identical
to that engaged in by ... other employees.” ) (internal quotations and alterations omitted). Further,
Fastorq has presented uncontroverted evidence that the Caucasian employees cited by Cassimere in his
EEOC charge held different job titles, which positions encompassed different job duties and required
different job skills, than that of Cassimere. Employees are not similarly situated if they have different
job titles and different job duties. Tucker v. SAS Institute, Inc., 462 F.Supp.2d 715, 726 (N.D. Tex.
2006) citing Okoye, 245 F.3d at 514-15; Wyvill v. United Companies Life Ins. Co., 212 F.3d 296, 305
(5th Cir. 2000) (noting that holding different jobs is a circumstance which falls short of “nearly
The court acknowledges that Cassimere testified in his deposition that Robert Garcia, who like
Cassimere was employed as a Supervisor II, was not written-up for a verbal confrontation with a
company representative for Chevron. However, Cassimere's deposition testimony is based on
inadmissible hearsay. Cassimere has not produced the testimony of Mr. Garcia or the company
representative, nor has he presented that of any other Fastorq or Chevron employee confirming that the
incident occurred, or if the incident did occur, any evidence that Mr. Garcia was not disciplined. In
sum, this court has before it only Cassimere's unsubstantiated assertion, which under the applicable
standard, is not competent evidence to defeat Fastorq's summary judgment motion.
Fastorq also established competent uncontroverted evidence that Cassimere's unequal
disciplinary write up claim was throughly investigated by its Human Resource Compliance Specialist,
Elenor Ducken, who after a lengthy two and one-half month investigation, which included review of
the documentation submitted by Cassimere and employee interviews, found that both African
American and non-African American employees were disciplined for company policy violations, and
further found no evidence to substantiate Cassimere's claim. Her testimony is supported by review of
the disciplinary write-ups themselves, which contain no reference to race, but document unsatisfactory
work performance and customer complaints, and Cassimere's responses , which likewise contain no
reference to race, but document Cassimere's disagreement with the write ups. Burrell v. Dr.
Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 416 (5th Cir. 2007) (noting that neither the
plaintiff's evaluation or response thereto "contains any mention of a racial or retaliatory basis for their
disagreements" granting summary judgment, finding that "no reasonable jury could infer that racial
discrimination or retaliatory intent"); See also Ulrich v. Exxon Co., USA, 824 F.Supp. 677, 685 (.D.
Tex. 1993) ("a contemporaneous document setting forth an employee's complaints, which, like
[plaintiff's] letter, makes no reference to racial discrimination, confirms that race is in fact not an
Finally, Fastorq has established by competent uncontroverted evidence that job assignments
were based on non-discriminatory criteria (training skills and tasks required, customer requests,
customer refusals, and customer requirements such as time limitations) pursuant to its rotating job
listing system. As noted above, Cassimere was uanble to identify any jobs he claims were not assigned
to him based on his alleged request from a customer representative, and has not listed any company
representative as a witness. The Fifth Circuit has noted that "[w]ithout evidence of disparate treatment,
it is difficult to maintain that a straightforward application of workplace policies and procedures was
pretextual." Chaney v. New Orleans Public Facility Management, Inc., 179 F.3d 164, 168 (5th Cir.
Cassimere has failed to produce "substantial evidence" that Fastorq's proffered reasons are
pretextual. As noted above, with the exception of various pages from his own deposition, Cassimere
failed to provide any evidence whatsoever to support a reasonable inference that Fastorq's proffered
reasons are false. Auguster, supra. The court is therefore left with Cassimere's subjective belief that
he has been the victim of discrimination, which alone is not sufficient to warrant judicial relief.
Auguster, citing Bauer, supra.
EEOC Charge 1289 also makes a reference to retaliation. Title 42 U.S.C. § 2000e–3(a)
prohibits unlawful retaliation. The McDonnell Douglas burden-shifting framework is likewise
employed to analyze Title VII retaliation claims. Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir.
1996). "To establish a prima facie case of retaliation, a plaintiff must show that: (1) he participated in
an activity protected by Title VII; (2) his employer took an adverse employment action against him;
and (3) a causal connection exists between the protected activity and the adverse employment action.”
McCoy v. City of Shreveport, 492 F.3d 551, 556-557 (5th Cir. 2007). “Title VII retaliation claims must
be proved according to traditional principles of but-for causation, not the lessened [motivating factor]
causation test. . . . ” Univ. of Tex. Sw. Med. Ctr. v. Nassar, ––– U.S. ––––, 133 S.Ct. 2517, 2533
(2013). This heightened standard requires the plaintiff to establish that "his or her protected activity
was a but-for cause of the alleged adverse action by the employer." Id. at 2534.
Once the plaintiff establishes a prima facie case, under the McDonnell Douglas framework the
burden of production shifts to the defendant to articulate a legitimate, non-retaliatory reason for the
adverse employment action. Long, 88 F.3d at 304-305; Baker v. American Airlines, 430 F.3d 750, 754755 (5th Cir. 2005). If the defendant introduces evidence which, if true, would permit the conclusion
that the adverse employment action was nondiscriminatory, the presumption of retaliation drops from
the case and the burden shifts back to the employee to show that the stated reason is actually a pretext
for retaliation. Long, 88 F.3d at 305; Baker, 430 F.3d at 755.
Fastorq contends that Cassimere has not set forth a prima facie case of retaliation for filing a
Human Resources complaint about his employee warning reports because he has failed to demonstrate
a causal link existed between the protected activity and his termination.6
The evidence before this Court establishes that Cassimere filed a complaint of discrimination
with the Human Resource department which was received by Elenor Duckens on February 23, 2015.
He was terminated on June 9, 2015, slightly less than four months later. While there was over a four
month period between the last employee warning report (January 27, 2015) and the filing of
Cassimere's first EEOC charge, charge 1289 (May 28, 2015), the same is not true with respect to the
filing of Cassimere's Human Resource department complaint. Although some Circuits have suggested
that a period of at least four months between a protected activity and termination is insufficient to
establish a causal link7, the Fifth Circuit has held that “temporal proximity alone is insufficient to
prove but for causation.” Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007).
Cassimere offers nothing except his own conclusory, self-serving testimony that he was
"released" because he filed a complaint with the Human Resource department. Cassimere's sole
evidence of retaliation is therefore reduced to an argument that this Court infer retaliation based on the
fact that the reduction in force occurred after his discrimination complaint. However, “the mere fact
that some adverse action is taken after an employee engages in some protected activity will not always
be enough for a prima facie case.” Roberson v. Alltel Information Services, 373 F.3d 647, 655 (5th Cir.
Even if Cassimere has presented a prima facie case of retaliation, summary judgment is
Fastorq also contends that Cassimere has not set forth a prima facie claim for retaliation for the
filing of an EEOC charge. The Court does not address this claim as it is not yet properly exhausted.
See e.g. Cooper v. City of Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986); Filipovic v. K&R
Express Systems, Inc., 176 F.3d 390, 399 (7th Cir. 1999).
nevertheless properly granted.8 For the same reasons set forth above, Cassimere has failed to meet his
burden to show that a genuine issue of material facts exists as to whether Fastorq's proffered legitimate
reason for his termination (reduction in force) was a pretext for retaliation and that his complaint to the
Human Resource department was the but-for cause of his termination. See Willis v. Cleco Corp., 749
F.3d 314, 318 (5th Cir. 2014) (“Showing pretext requires a plaintiff to produce substantial evidence
indicating that the proffered legitimate nondiscriminatory reason is a pretext for discrimination . . . [,]
[and] the plaintiff must show that the protected activity was the ‘but for’ cause of the retaliation.”).
Cassimere's subjective belief, no matter how sincere, simply cannot support a finding that his protected
activity was a but-for cause of his termination. Smith v. Board of Supervisors of Southern University,
656 Fed. Appx. 30, 34 (5th Cir. 2016) citing Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 153
(5th Cir. 1995) and Waggoner v. City of Garland, 987 F.2d 1160, 1164 (5th Cir. 1993).
The plaintiff has failed to exhaust his administrative remedies and has sought to put at issue
complaints which are not properly before this Court. As such, those claims will be dismissed without
prejudice. As to the remaining claims for violations of Title VII based on the claims contained in
EEOC Charge 1289, the plaintiff has failed to meet his burden of proof and those claims will be
dismissed with prejudice. More specifically, the claims that have not been pled in the complaint, and
the claims in EEOC Charge 1420 are to be dismissed without prejudice. The claims set forth in EEOC
The Court notes that there is some disagreement among the circuits regarding whether
the Supreme Court's holding in University of Texas Southwestern Medical Center v. Nassar, –––
U.S. ––––, 133 S.Ct. 2517, 2528, 186 L.Ed.2d 503 (2013), requires a plaintiff to show but-for
causation as part of his prima facie case of retaliation, or only at the third step of the McDonnell
Douglas framework to rebut an employer's legitimate stated reason for the adverse employment
action. The Fifth Circuit has not yet resolved this question. See Smith v. Board of Supervisors of
Southern University, 656 Fed. Appx. 30, fn. 4 (5th Cir. 2016) (and cases cited therein).
Charge 1289 are to be dismissed with prejudice.
Signed this 1st day of March, 2017, at Lafayette, Louisiana.
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE
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