Peterson v. Linear Controls Inc

Filing 46

MEMORANDUM RULING re 29 MOTION for Summary Judgment filed by Linear Controls Inc. Signed by Magistrate Judge Carol B Whitehurst on 9/5/2017. (crt,Chicola, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Peterson
versus

Civil Action No. 16-00725
Magistrate Judge Carol B. Whitehurst

Linear Controls Inc.

By Consent of the Parties

MEMORANDUM RULING
Before the Court is a Motion For Summary Judgment filed by defendant,
Linear Controls Inc.(“Linear Controls”), [Rec. Doc. 29]. Plaintiff, David D. Peterson,
filed a Memorandum In Opposition [Rec. Doc. 33] and Linear Controls filed a Reply
thereto [Rec. Doc. 39]. For the reasons that follow, the Court will grant the Motion.
I. Background
Plaintiff is a former employee of Linear Controls who worked offshore as an
electrician on a construction crew and also periodically performed maintenance work
on offshore rigs. Plaintiff was employed with Linear Controls for approximately
seven (7) years before he submitted a resignation letter on September 23, 2015.
Plaintiff filed an EEOC Charge against Linear Controls on October 21, 2015
alleging that for an approximately six (6) week period in 2015, July 15–August 22,
2015, while working for Linear Controls on the Fieldwood Energy, LLC
(“Fieldwood”) East Breaks 165 platform, he was discriminated against on the basis

of his race—African-American, and that he was subjected to discrimination based on
his religion—Muslin. Plaintiff also claimed “retaliation” in his EEOC charge because
he was late for a safety meeting along with two white employees, but he was the only
one written-up for the violation.1 R. 29-3, Exh. B. Plaintiff asserted claims under Title
VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e) ("Title VII"). After
conducting an investigation the EEOC ruled in Linear Controls’ favor and found that
the evidence did not establish a violation of Title VII on either the race or the
religious discrimination claims.
On May 25, 2016, Plaintiff filed a Complaint in this action asserting race and
religious discrimination claims under Title VII. Plaintiff also asserted a claim of racial
discrimination under Louisiana’s Employment Discrimination Law and a state law
claim for intentional infliction of emotional distress.
On May 25, 2017, Linear Controls filed the instant Motion for Summary
Judgment seeking dismissal on the merits of all of the Plaintiff's asserted federal and
state law claims. Plaintiff filed an Opposition to Linear Control's Motion for
Summary Judgment on June 29, 2017. R. 33.

1

The EEOC investigated the safety meeting incident as one for disparate treatment rather
than retaliation based on Plaintiff’s racial discrimination charge. R. 29-3, Exh. G.
2

II. 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). 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. 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. 317, 325 (1986). All facts and justifiable inferences are construed
3

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). As in any case, unsubstantiated
assertions and conclusory allegations are not competent summary judgment evidence.
Hervey v. Mississippi Dept. of Educ., 404 Fed.Appx. 865, 869 (5th Cir. 2010) (citing
Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002)) (“conclusory allegations,
4

speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's
burden on a motion for 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.
III. Undisputed Facts
Linear Controls publishes and distributes company policies addressing
discrimination and harassment in the workplace. Linear Controls’s Equal
Employment Opportunity (“EEO”) Policy stated in pertinent part:
Linear Controls, Inc. provides equal employment opportunities
without regard to race, color, age, sex, national origin, religion,
disability or veteran status. Linear Controls, Inc.’s commitment to
equality extends to all personnel actions including: recruitment,
advertising or soliciting for employment, selection for employment,
determining rates of pay or other forms of compensation, performance
evaluation, upgrading, transfer, promotion, demotion, selection for
training or education, discipline, suspension, termination, treatment
during employment, and participation in social and recreational
programs.
R 29-2, Undisputed Fact No. 2, citing R. 29, Exh. R, Declaration of Clemons; Exh.
S, Employee Handbook.
Linear Controls also prominently displays at its facilities EEO posters
published by the U.S. Department of Labor. These posters provide that

5

discrimination, harassment and retaliation are prohibited. The posters also provide
contact information for the U.S. Department of Labor, Equal Employment
Opportunity Commission (“EEOC”). In addition, Linear Controls has a written
grievance or complaint policy. Linear Controls’ management also maintains an
open door policy under which employee complaints or concerns can be raised.
Employees may raise complaints or concerns with supervisors or with Human
Resources. R. 29-2, Undisputed Fact No. 3, citing Exh. R, Declaration of Clemons;
Exh. S, Employee Handbook.
Plaintiff acknowledged receipt of copies of the above-referenced policies as
shown by the signed Receipt and Acknowledgment forms dated October 28, 2008
and March 28, 2012, copies of which are marked as Exhibit T, in globo. R. 29-2,
Undisputed Fact No. 4, also citing Plaintiff’s Depo., Exh. D, pp. 175-179.
Linear Controls originally hired Plaintiff on October 28, 2008 as a Helper
earning $9.00/hr. Plaintiff’s employment was separated in March of 2009 due to lack
of work. R. 29-2, Undisputed Fact No. 5 citing Exh. R, Declaration of Clemons.
During the time period relevant to this litigation, Plaintiff worked offshore
for Linear Controls as an Electrician on a construction crew. R. 29-2, Undisputed
Fact No. 8 citing Exh. R, Declaration of Clemons.
On July 13, 2015, while offshore in the Grand Isle area on a job for Linear
6

Controls’ customer, Fieldwood Energy, LLC (“Fieldwood”), Plaintiff was late for a
safety meeting. R. 29-2, Undisputed Fact No. 9 citing Exh. O,7/13/15 Employee
Disciplinary Report.
Plaintiff admits he was late for the meeting. R. 29-2, Undisputed Fact No.
10 citing Exh. D, Plaintiff’s Depo., pp. 152-159, 233-235, 246.
The next day, July 14, 2015, Plaintiff was sent in from the Grand Isle job. R.
29-2, Undisputed Fact No. 11 citing Exh. P, 07/14/2015 Employee Disciplinary
Report.
Plaintiff became confrontational with Linear Controls’ Maintenance
Supervisor, Michael Book, when Plaintiff learned that he was being sent in from
the job. R. 29-2, Undisputed Fact No. 14 citing Exh. Q, Depo. of Davis, pp. 21-25;
Exh. P, 07/14/2015 Employee Disciplinary Report. Michael Book and Plaintiff were
the only Linear Controls’ employees on the job. Id. citing Exh. Q, pp. 21-25.
After being sent in from the Grand Isle job, Plaintiff was put back to work
immediately by Linear Controls on another location. R. 29-2, Undisputed Fact No.
15 citing Exh. R, Declaration of Clemons.
Plaintiff admits he was late for a safety meeting in August 2015 on the East
Breaks 165 project. R. 29-2, Undisputed Fact No. 17 citing Exh. E, 8/13/2015 (p.
12/100) notes submitted by Plaintiff to EEOC.
7

No disciplinary action was incurred by any employee, including Plaintiff, in
August 2015 on the East Breaks 165 project as Linear Controls did not receive
any reports from Fieldwood that either Duhon, Hammett or Plaintiff were late for
any safety meeting in August 2015. R. 29-2, Undisputed Fact No. 18 citing
Declaration of Clemons.
On September 15, 2015, Plaintiff called Tim Davis, Linear Controls’
Construction Project Manager, asking to have his employment terminated by Linear
Controls. Davis declined since the company was not conducting layoffs at the time
and had a project coming up and needed Plaintiff to work. R. 29-2, Undisputed
Fact No. 21 citing Depo. of Davis, pp. 19-20; Plaintiff’s Depo., pp. 160-169.
On September 23, 2015, Plaintiff submitted a letter to Linear Controls stating:
“I will like to resign from Linear Control’s, due to I am continuing my education as
an electrician to further my career.” R. 29, Exh. C, Plaintiff’s 09/3/2015 letter.
Plaintiff’s resignation letter makes no reference to discrimination or harassment
based upon race or religion or to any other alleged unlawful discriminatory acts or
conduct. R. 29-2, Undisputed Fact No. 25 citing Exh. C, Plaintiff’s 09/3/2015 letter.
After his resignation, Plaintiff did continue his education, receiving additional
training and/or education through the International Brotherhood of Electrical Workers
(“IB EW”) and otherwise. R. 29-2, Undisputed Fact No. 26 citing Plaintiff’s
8

Deposition, pp. 10, 41-43, 174-175.
Plaintiff filed his Charge of Discrimination on October 28, 2015, and the
EEOC issued a Notice of Right to Sue at Plaintiff’s request , due to the passage of
time, on February 22, 2016. R. 29-2, Undisputed Fact No. 27 citing Exh. B, EEOC
Charge, Exh. F, EEOC Notice of Right to Sue.
Plaintiff worked for Linear Controls on Fieldwood’s East Breaks 165 platform
from July 16, 2015 to July 26, 2015 and from August 2, 2015 to August 22,
2015. From July 27, 2015 to August 1, 2015, Plaintiff was off. R. 29-2, Undisputed
Fact No. 28 citing Declaration of Clemons.
Duhon denies making any comments to Plaintiff about being a Muslin. R. 29-2,
Undisputed Fact No. 31 citing Exh. I, Depo of Duhon, pp 21-22.
The job description for an Electrician on a Linear Controls’ construction
crew, as was Plaintiff, called for working outdoors including exposure to “a typical
offshore site” and the “ability to work in a work area where work temperatures may
be affected by outside temperatures.” R. 29-2, Undisputed Fact No. 37 citing
Plaintiff’s Depo., pp. 179-182; Exh. L, Job Description, Bates Nos. L00720-L000721.
Working in an outdoor environment was part of Plaintiff’s job description and
regular job duties. R. 29-2, Undisputed Fact No. 38 citing Plaintiff’s Depo., pp.
179-182; Exh. L, Job Description, Bates Nos. L00720-L000721; Declaration of
9

Clemons.
Although he was an Electrician and a member of Linear Control’s
construction crew, Plaintiff was given assignments on maintenance projects from
time to time if the work was within his capabilities. R. 29-2, Undisputed Fact No.
40 citing Exh. N, Declaration of Macdonald.
Plaintiff was offered a maintenance position within his capabilities and for
which he was qualified, pursuant to an inquiry from Plaintiff. R. 29-2, Undisputed
Fact No. 41 citing Exh. N, Declaration of Macdonald; Davis’ Depo., pp. 36-38.
Plaintiff declined the offer as he would potentially make less money
working in maintenance even though the job paid $1.00 more per hour. Generally,
Electricians on a construction crew work longer shifts (more than 14 days) and
more hours per day than workers on a maintenance job. Also, in a full-time
maintenance position, Plaintiff would generally not have the opportunity to work as
an Electrician, when not working on a maintenance job, as Electricians are
assigned to work on specific projects. R. 29-2, Undisputed Fact No. 42 citing
Declaration of Macdonald; Davis’ Depo., pp. 36-38.
Calvin J. Broussard, Jr., an African-American man, accepted the
maintenance position that Plaintiff declined. R. 29-2, Undisputed Fact No. 43 citing
Declaration of Macdonald; Davis’ Depo., pp. 36-38.
10

Plaintiff does not contend that his job performance trailed off while working
for Linear Controls. Plaintiff testified that his overall performance improved
throughout the course of his employment. R. 29-2, Undisputed Fact No. 45 citing
Plaintiff’s Depo., p. 147.
A year and three months after he resigned from Linear Controls, while
working for his second, subsequent employer , and after this lawsuit was filed,
Plaintiff saw his family doctor for anxiety on one (1) occasion, December 27,
2016. As Plaintiff testified, no mention was made of Linear Controls to the doctor.
R. 29-2, Undisputed Fact No. 46 citing Plaintiff’s Depo., pp. 212, 217-225.
Though offered prescription medication at that time, Plaintiff testified that he
did not feel that he needed it and did not fill the prescription, nor does he intend
to do so. R. 29-2, Undisputed Fact No. 47 citing Plaintiff’s Depo. pp. 224-225.
IV. Law And Analysis
A. 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
11

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); Nielsen v. City of Moss Point, Miss., 621 F.2d 117,
120 (5th Cir. 1980).
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. Stated differently, the scope of a Title 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. 1990).
On October 28, 2015, Plaintiff filed a Charge of Discrimination with the
EEOC (“the Charge”). R. 29, Exh. B. Plaintiff defined the time period applicable to
his charge as “07-13-2015” to “07-14-2015.” The Charge stated:
I began my employment with Linear Controls on October 28, 2008 most
recently as an Electrician. I was subjected to Muslim jokes and comments
because of my religious beliefs (not eating pork). On July 13, 2015, I was
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subjected to different terms and conditions of employment, in that, myself
and three other guys were late for a safety meeting but I was the only
person written up and the next day I received another write-up for no reason.
There were five White and five Black guys. The Black guys had to work
in the heat but the White guys did not, we were not allowed to take water
breaks but the White guys were. The Managers would also judge my
appearance and overlook my work. The company employs more than 500
employees.
No reason was given for the action taken against me.
I believe I have been discriminated against because of my religion,
___________[blank in the original]; race, Black; and retaliated against
in violation of Title VII of Title VII (sic) of the Civil Rights Act of
1964, as amended, in that Chad Duhon and Brandon Hammett, both
White males, were late for a safety meeting but received no write ups.
Thus, in his EEOC charge Plaintiff stated claims for: (1) discrimination based on race
and religion; (2) harassment based on religion; (3) retaliation; and (4) disparate
treatment based on race.
Plaintiff’s allegations in his Complaint included claims of (1) discrimination
based on race and religion; (2) harassment based on religion and race2; (3) disparate
treatment based on race; (4) constructive discharge; and (5) retaliation. Plaintiff’s
Complaint filed on May 25, 2016, alleged:
1.

From July 15 to July 26, 2015, Plaintiff was working
offshore as an electrician on a crew on the Fieldwood

2

In his Opposition Memorandum, Plaintiff contends that the outdoor work he was
required to perform and the outdoor water breaks constituted harassment and hostile work
environment based on his race.
13

Energy, LLC East Breaks 165 platform (“East Breaks
165”) and that, during that time, black crew members
were required by Linear Controls’ white supervisors to
work every day outside, in the heat while white crew
members worked exclusively inside, in air-conditioned
facilities;
2.

During that time, if any black crew member, including
Plaintiff, took a water break inside, the white supervisors
would curse and yell and order him back to work; and

3.

Despite alleged requests by the black employees to their
white supervisors, there was no rotation from outside to
inside among white and black crew members. R.1, ¶ VIII.

The Complaint also alleged that white employees, Chad Duhon, Plaintiff’s
direct supervisor, and Brandon Hammet, Plaintiff’s co-employee, were late for safety
meetings but not admonished. In his EEOC charge, Plaintiff alleged that he was
“retaliated against” because Duhon and Hammett were not written up. The Complaint
further alleged that Plaintiff was harassed by his white supervisors without reason
and that Duhon and Hammet made jokes and derogatory comments about Plaintiff’s
religion. In addition, the Complaint alleged that Plaintiff’s request to leave an
offshore project due to a family emergency illness was “denied” by his white
supervisor(s). The Complaint also alleged that Plaintiff was “laid off ... and never
called to return back to work.” Finally, the Complaint alleged Plaintiff was “forced
to and did voluntarily resign.”
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1. Claims Not In The Charge Nor Alleged In The Complaint
Plaintiff contended in his deposition that he wanted a transfer or promotion
from his position as an Electrician on a construction crew to a foreman’s position or
a job on a maintenance crew, but was denied a promotion. R. 29, Exh. D, Plaintiff’s
Depo, pp. 86-89. Plaintiff claimed that a Caucasian employee was given a job on the
maintenance crew and he was not. Id. at pp. 93, 190. Plaintiff’s claim is disputed by
the record. Plaintiff was offered a maintenance position which he declined because
he would potentially make less money working in maintenance as Electricians on
a construction crew work longer shifts (more than 14 days) and more hours per day
than workers on a maintenance job. R. 29-2, Undisputed Fact Nos. 41 and 42.
Moreover, the maintenance position that Plaintiff declined was ultimately accepted
by Calvin J. Broussard, Jr., an African-American man. Id., Undisputed Fact No.
43. Even assuming that Plaintiff had a viable claim, which he does not, because
Plaintiff did not assert any such failure to promote claim in his EEOC charge, he is
precluded from including it in this action.
2. Claims In The Charge Not Alleged In The Complaint
Plaintiff’s EEOC charge alleged that unidentified “Managers” judged
Plaintiff’s appearance

and overlooked his work. However, there is no such

allegation in the Complaint; therefore, there is no such claim presently before the
15

Court. Any claim premised on Plaintiff’s appearance allegedly being judged and his
work allegedly being overlooked must be dismissed. See Cassimere v. Fastorq, LLC,
2017 WL 812468, at *12 (W.D. La. 2017)(Dismissing on summary judgment claims
not included in plaintiff’s EEOC charge or Title VII complaint.)
3. Allegations In The Complaint Not Stated In The Charge
a. Denial of Leave
Plaintiff alleged in his Complaint that he was denied the opportunity to go
home for a family illness emergency while working on the subject platform. While
Plaintiff did not include this claim in the Charge and the EEOC did not investigate
this claim, he did mention it in the handwritten notes in the EEOC Questionnaire. R.
29-3, p. 99. Because this claim is not in the Charge and was not developed in the
ensuing EEOC investigation, it may not be pursued in this action.
Regardless, Plaintiff’s claim is without merit. In a June 27, 2015 handwritten
note and in his deposition, Plaintiff conceded he was allowed to leave the platform
with the understanding that he might not be able to return to the same project. R. 29-3,
Exh. E, p. 104; Exh. D, pp. 119-125, 132-133. In fact, Plaintiff returned to the same
project. Also, Tim Davis, Linear Controls’ Construction Project Manager, testified
that Plaintiff had requested personal leave on numerous occasions—his requests were
never denied and he was allowed to return to the project, rig or worksite. Thus, this
16

claim lacks merit.
b. Safety Meeting Write-ups
In his EEOC charge Plaintiff claimed that his direct supervisor, Chad Duhon,
and Brandon Hammett, his co-employee, both Caucasian, were late for safety
meetings but not admonished. Plaintiff contended that he was “retaliated against”
because Duhon and Hammett were not written up. In his Charge, Plaintiff specifically
stated that on July 13, 2015, while he was working on the Grand Isle platform, he,
Duhon and Hammett were late, but he was the only one written up. R. 29-3, p. 7. In
the notes in the EEOC Questionnaire, Plaintiff further stated that he received another
write-up the next day, July 14, for the July 13, 2015 incident which was a “final
warning.” Id, p. 99, No. 5, A & B.
Plaintiff admits that he overslept and was late for the July 13, 2015 meeting.
Contrary to his claim, Plaintiff’s own deposition testimony establishes that Duhon
and Hammett did not work on the Grand Isle platform on July 13, 2015. R. 29-3, Exh.
D, p. 235. Also, the testimony of Davis, the Project Manager, provided that Plaintiff
was sent in from the Grand Isle job because Linear Controls’ customer did not want
to use Plaintiff on the job any longer. Id., Exh. Q, pp. 20-35. Thus, Linear Controls
has established a legitimate, nondiscrminatory reason for the July 13, 2015 and July
14, 2015 write-ups.
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In his Complaint and EEOC Questionnaire notes, Plaintiff claimed that he was
late for a safety meeting in August, 2015 while on the East Breaks 165 platform and
was chastised “unprofessionally’ by his Caucasian supervisors. The Declaration of
Dawn Clemons, Linear Controls’ Chief Financial Officer, states that “[a]fter being
sent in on July 14, 2015 from the Grand Isle job, Plaintiff was put back to work
immediately [on the East Breaks 165 platform].” R. 29-4, p. 32. Clemons further
states that Linear Controls received no reports that Plaintiff, Duhon or Hammett were
late for any safety meeting in August 2015 and no disciplinary action was incurred
by any employee, including Plaintiff. Id.
But assuming arguendo that a disciplinary write-up was issued, in order to
establish a prima facie case of discrimination as well as for retaliation under Title VII,
a plaintiff must demonstrate an adverse employment action. A disciplinary write-up
does not constitute an adverse employment action. Cassimere, 2017 WL 812468, at
*9 (citing King v. Louisiana, 294 Fed.Appx. 77, 85 (5th Cir. 2008) (Allegations of
unpleasant work meetings and verbal reprimands do not constitute actionable adverse
employment actions.)). Plaintiff has supplied no competent summary judgment
evidence which constitutes an adverse employment action with regard to the write-up
claims. The Court will grant Defendant’s motion to dismiss this claim.

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c. Constructive Discharge
The allegations in the Complaint that Plaintiff was “laid off ... and never called
back to return to work ” and “forced to and did voluntarily resign” are not in included
in his Charge and therefore must be dismissed. As previously stated, it is
well-established that the failure to assert a claim in an EEOC charge precludes an
employee from including that claim in a later civil action. As stated in Calmes v.
JPMorgan Chase Bank, 943 F.Supp.2d 666, 681-682 (E.D. La. 2013), “If a
plaintiff fails to state a particular claim in his EEOC charge or if that charge is
not developed in the ensuing EEOC investigation, the plaintiff is precluded from
bringing that claim in his civil suit.” In Calmes, the plaintiff submitted a letter of
resignation stating that he was resigning to look for other employment. Id. at
682. The plaintiff then filed an EEOC charge and later filed a Title VII complaint
alleging harassment, retaliatory discharge and constructive discharge. Id. The
charge, however, did not allege retaliatory or constructive discharge. Id. The court
dismissed the retaliatory and constructive discharge claims on summary judgment,
stating in pertinent part:
[T]he Court notes that despite the fact that Plaintiff's charge was filed
with the EEOC on June 15, 2010, a mere three days after his
resignation took effect, Plaintiff failed to inform the EEOC that he
had resigned/felt that he had to resign as a result of Defendant's conduct.
The charge itself contains allegations of harassment by Mr. Ritchel
and details the subsequent behavior by Defendant; however, it fails
19

to assert that such behavior caused Plaintiff to terminate his
employment. As such, Plaintiff is precluded from bringing a claim
for constructive discharge in the instant action ....
[A]t no point in the EEOC charge does Plaintiff state that the alleged
harassment has resulted in any definitive termination of his
employment. Rather, Plaintiff explains that he has been suspended with
pay and that Defendant is attempting to force him to take disability
leave, not terminate him. Plaintiff does not contend [in the EEOC
charge] that he has left and/or has been forced to leave. Accordingly,
Plaintiff is also precluded from bringing a claim of retaliatory discharge
....
Id. at 682. See also, Harris, 178 F.Supp. 2d at 690 (W.D. La. 2001)(Employee's
Title VII claims including the denial of various promotions and opportunities, hostile
work environment, and retaliation were not properly before the Court as employee's
charge referred only to her employer's failure to promote her for specific positions);
Stone v. Louisiana Dept. of Revenue, 590 Fed. Appx. 332, 338 (5th Cir.
2014)(dismissing constructive discharge and other claims since plaintiff’s EEOC
charge did not allege facts reasonably encompassing such claims).
An EEOC charge must state facts sufficient to trigger an EEOC investigation
and put the employer on notice of the existence and nature of the claim. Stone
at 338. Here, Plaintiff’s Charge does not mention Plaintiff’s separation of
employment at all. The Charge was signed by Plaintiff on October 21, 2015 and filed
on October 27, 2015, approximately a month after Plaintiff submitted his letter
of resignation on September 23, 2015. While Plaintiff’s resignation letter states that
20

he was resigning to seek additional education to further his career3, the Charge
makes no reference to being laid off or forced to resign. Likewise, Plaintiff’s
resignation letter states nothing about harassment or discrimination.
Plaintiff’s Charge did not specifically contain, or reasonably encompass, any
claim regarding his separation from employment and was never amended or
supplemented to include one. Thus, the EEOC did not inquire into Plaintiff’s
separation of employment at any time prior to closing the case. R. 29, Exhs. G, H.
The EEOC closed its investigation and issued a “Notice of Right to Sue (Issued on
Request)” on February 22, 2016. “[I]f 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.” National Association of Government Employees v. City
Public Service Board of San Antonio, Tx, 40 F.3d 698, 712 (5th Cir. 1994) (citing 2
Larson, Employment Discrimination § 49.11(c)(1) at 9B–16). Accordingly, Plaintiff’s
claims of constructive, retaliatory or other allegedly unlawful discharge must be
dismissed for failure to include them in the EEOC Charge.
B. Discrimination Claims
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

3

Plaintiff testified he did in fact seek additional education.
21

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
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 801-803.
Here, Plaintiff contends he suffered racial and religious discrimination during
his employment on Fieldwood’s East Breaks 165 platform sometime between July 15
and August 22, 2015, when he terminated his employment. Plaintiff asserts a claim
of disparate treatment based on his race and claims of harassment creating a hostile
work environment based on his religion and his race. The Court will consider
22

Plaintiff’s claims as follows.
1. Disparate Treatment
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 Fifth Circuit defines “similarly situated” narrowly. Silva v. Chertoff, 512
F.Supp.2d 792, 803 n. 33 (W.D.Tex.2007) (citing Wheeler v. BL Dev. Corp., 415 F.3d
399, 405 (5th Cir.2005)). Similarly situated individuals must be “nearly identical” and
must fall outside the plaintiff’s protective class. Wheeler at 405. To show that an
employee outside the protected class was “similarly situated” but treated more
favorably, a plaintiff must show that the alleged misconduct of both employees was
“nearly identical.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir.2001).
“The employment actions being compared will be deemed to have been taken under
nearly identical circumstances when the employees being compared held the same job
or responsibilities, shared the same supervisor or had their employment status
23

determined by the same person, and have essentially comparable violation histories.”
Turner v. Kansas City Southern Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012).
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)).
Plaintiff alleges in his Complaint that “from July 15, 2015 to July 26, 2015 [he]
24

was a member of Defendant’s work crew” on the East Breaks 165 platform. R. 1, ¶
VIII. While Plaintiff acknowledged that his job description called for exposure to “a
typical offshore site” and the “ability to work in a work area where temperatures may
be affected by outside temperatures,” R. 29, Exh. D, Plaintiff’s Depo., pp. 179-182;
R. 29-2, Undisputed Facts 37, 38, he maintains that the African-American crew
members were required to work every day outside while the Caucasian crew members
worked exclusively inside in air-conditioned facilities. Plaintiff further contends that
if an African-American employee took a water break inside, the white supervisors
would curse and yell and order the employee back to work. Id. In particular, Plaintiff
testified in his deposition that, after sitting inside the safety man, Jimmy Cox’s,
office drinking water for a couple of minutes, his Caucasian supervisor, Robert
Walker, fussed at him and told him to get the “f” back to work. R. 29, Exh. D,
Plaintiff’s Depo., pp. 75-83,100. Plaintiff got up and went back to work. Id.
In his Declaration, Broc Arnaud, Linear Control’s employee since July 1, 2014,
who personally worked with Plaintiff, stated that Caucasian employees, including
Arnaud himself, worked both outside and inside on the subject platform; and that
Caucasian and African-American employees worked together outside on the platform.
R. 29-2,Exh. K, Declar. Of Arnaud, ¶ 3. In particular, Arnaud testified that he
personally observed African-American employees of Linear Controls, namely Daniel
25

Harris, Archie Mouton, Aaron Boudreaux and Chris Lavergne, working inside on the
East Breaks 165 platform. Id. Arnaud also stated that he personally observed Plaintiff
working inside for a period of time. Id. Moreover, Arnaud stated that he, Matthew
Latiolais and Brandon Hammett, worked outside. Id. Robert Walker, one of Plaintiff’s
direct supervisors, testified that he himself had worked outside pulling cable and that
African-American employees worked inside on the subject platform. R. 29-3, Exh. J,
Walker Depo., pp. 22-23.
Arnaud also stated that all employees on the East Breaks165 platform were
allowed to take water breaks when needed and they were allowed to get water and
Gatorade from refrigerators or coolers at any time. He further stated that Linear
Controls’ managers would regularly and routinely hand out water to their employees
who were working outside throughout the shift. R. 29-2, Declar. Of Arnaud, ¶5. Also,
Walker, Plaintiff’s supervisor testified that neither he nor Duhon “got onto workers
for stopping to get a drink of water.” R. 29-3, Walker Depo., p. 23. Rather, he stated,
they would actually bring the workers water. Id.
Plaintiff has identified no similarly situated Caucasian employee who
performed the same work he performed and was allowed to work exclusively indoors.
Nor has Plaintiff identified a similarly situated Caucasian co-worker performing his
same work who was allowed to take a water break like the one Plaintiff was allegedly
26

denied. Rather, Plaintiff’s Complaint and his deposition offer nothing more than
general claims that Caucasian workers were treated better than him.
In his opposition memorandum, Plaintiff submits the Declaration of Archie J.
Mouton, an Electrician on the East Breaks 165 platform who states he worked “in
July 2015" with Plaintiff on a crew of four African Americans, including Plaintiff and
himself. R. 33-1, ¶ 1, 2. As to Plaintiff’s allegations of racial disparity in the outdoor
versus indoor working environment, Mouton states, “[b]oth crews had the same job,
however, my crew was assigned to work outside in the heat. The white crew worked
inside in the air conditioning.” Id, ¶ 3. Plaintiff also submits the Declaration of Jimmy
Cox, the Safety Representative for United Fire Safety who “was contracted to work
at ... East Breaks 165 platform.” R. 33-2. Cox states that “all black workers that were
employed by Linear had to work outside and all the white employees worked inside
where there was air conditioning. Plaintiff’s supervisor, Chad Duhon, stayed inside
and would yell at any of the black employees who came inside to get water or took
breaks.” Id. at ¶ 4.
Defendant objects to the statements of Mouton and Cox. Federal Rule of Civil
Procedure 56(c)(4) requires that a declaration used to support or oppose a motion
“must be [1] made on personal knowledge, [2] set out facts that would be admissible
in evidence, and [3] show that the [] declarant is competent to testify on the matters
27

stated.” Fed. R. Civ. P. 56(c)(4). Defendant objects to Mouton’s declaration for
failure to attest to personal knowledge as to any Caucasian co-workers who “had the
same job” and who “worked inside in the air conditioning.” R. 35-3. Defendant
contends that Mouton does not provide the actual time period which he worked on
the platform, instead simply states that he was on the project “six weeks” “in July
2015," and therefore has not laid the proper foundation to establish his personal
knowledge. Defendant also objects to Cox’s statements on the basis of personal
knowledge in that Cox merely makes a reference to “July 2015" and does not specify
the dates he was actually on the platform or whether he was there for the entirety of
Plaintiff’s employment. Nor does Cox testify as to the basis of his personal
knowledge of how he knows which employees were Linear Controls’ employees, the
race of any particular employees and the job titles and positions of any of the
employees.4
In addition to its objections for failure to lay a proper foundation/lack of
personal knowledge as required by FRE Rule 602, Defendant also objects to both
Declarations on the basis of relevance under FRE 401, inadmissible hearsay offered
to prove the truth of the matters asserted, pursuant to FRE Rule 801, and

4

The Court notes that throughout the Declaration, Cox’s “statements” are referenced in
the third person—“Declarant states” or “Declarant says”— rather than the first person. Such a
reference questions whether the Declaration is actually Cox’s own statement.
28

argumentative, speculative and conclusory statements which are not based on
personal knowledge, inadmissible under FRE Rule 701.
While a declaration need not specifically state that it is based on personal
knowledge, it must include enough factual support for a court to determine that its
averments were based upon the personal knowledge of the declarant. Fed. R. Civ. P.
56(c)(4); Gahagan v. United States Citizenship and Immigration Services, 2016 WL
7187943, at *2 (E.D.La., 2016) (citing Thomas v. Atmos Energy Corp., 223
Fed.Appx. 369, 374 (5th Cir. 2007)). When considering a motion for summary
judgment, a court disregards any portion of a declaration that fails to comply with
Rule 56(c)(4). Akin v. Q–L Investments, Inc., 959 F.2d 521, 531 (5th Cir. 1992).
The Court finds that Mouton and Cox’s declarations as to Plaintiff’s claims at
issue fail to comply with the requirements of Rule 56(c)(4). The declarants have not
laid the proper foundation to demonstrate their presence on the platform during the
relevant period of time or that they had personal information in order to establish that
the alleged disparity between the crew members was based on a comparison of
similarly situated employees. “The similarly situated prong requires a Title VII
claimant to identify at least one coworker outside of his protected class who was
treated more favorably under nearly identical circumstances. This coworker, known
as a comparator, must hold the same job or hold the same job responsibilities as the
29

Title VII claimant; must share the same supervisor or have his employment status
determined by the same person as the Title VII claimant; and must have a history of
violations or infringements similar to that of the Title VII claimant.” Alkhawaldeh v.
Dow Chemical Company, 851 F.3d 422, 426–27 (5th Cir. 2017). Thus, as Plaintiff has
failed to identify a similarly situated Caucasian comparator, he cannot establish a
prima facie case.
Even if Plaintiff had identified a similarly situated Caucasian comparator who
was assigned to work exclusively inside the platform facility and/or allowed to take
a water break inside, Plaintiff’s claims still fail as a matter of law because he has not
alleged or testified to any adverse employment action. “Adverse employment actions
include only ultimate employment decisions such as hiring, granting leave,
discharging, promoting, or compensating.” Green v. Adm'rs of Tulane Educ. Fund,
284 F.3d 642, 657 (5th Cir. 2002).
Defendant directs the Court to Harris v. Attorney General U.S.A., 2017 WL
1493692 (3rd Cir. 2017), a case with facts similar to the instant one. In Harris the
Third Circuit stated:
[Plaintiff] has described the...discriminatory action as forcing him
“to work under unhealthful environmental (excessive heat) conditions,”
or directing him “to perform mowing activities on a day where the
temperature and heat index were dangerously high”... The District
Court concluded that this single action did not amount to an adverse
employment action, because it did not alter [plaintiff’s]
30

“compensation, terms, conditions, or privileges of employment,”... and
it did not reduce his opportunities for promotion or professional
growth... Rather, [plaintiff] was assigned to complete one of his
regular job duties. Id. at *2.
Defendant argues that just as the court held in Harris, working outside in the heat
between July 15, 2015 and July 26, 2015, was part of Plaintiff’s job description
and his regular job duties, such action does not meet the definition of “adverse
employment action”, i.e., 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. See also,
Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000) (noting that the
U.S. Fifth Circuit takes a narrow view of what constitutes an adverse employment
action.)
Similarly, Plaintiff’s allegations that he was not allowed to go inside and take
his water break don not constitute an adverse employment action. Actions such as
assigning an employee more difficult work, giving employees unequal break times,
and giving allegedly biased annual evaluations are not “adverse actions” within the
meaning of Title VII. Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 486 (5th Cir.
2008) (break requests); Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 407
(5th Cir. 1999) (unfair employee evaluations); Benningfield v. City of Houston, 157
F.3d 369, 376-77 (5th Cir. 1998) (heavier work load). Neither the alleged assignment
31

of outdoor work nor the denial of an inside water break is an adverse employment
action within the meaning of Title VII. Defendant’s Motion in this regard will be
granted.
2. Harassment Claims
Plaintiff asserts a purported hostile work environment claim premised on
allegations of religious harassment. Plaintiff alleges he was subject to Muslim
jokes and comments made by his supervisor, Duhon, and co-employee, Hammett,
while working on Fieldwood’s East Breaks 165 platform sometime between July 15
and August 22, 2015. In his Opposition, Plaintiff appears to raise a harassment and
hostile work environment claim based on the allegations that he was not allowed to
work inside and was denied a water break. While Plaintiff’s EEOC Charge indicates
these allegations as to racial discrimination were based on disparate treatment, the
Court will also consider whether these claims constitute racial harassment and hostile
work environment under Title VII.
To state a prima facie case of hostile work environment based on harassment,
an employee must show that: (1) he belongs to a protected group; (2) he was
subjected to unwelcome harassment; (3) the harassment complained of was based on
a protected characteristic; (4) the harassment complained of affected a term,
condition or privilege of his employment; and (5) the employer knew or should have
32

known of the harassment and failed to take prompt remedial action. Watts v. Kroger
Co., 170 F.3d 505, 509-510 (5th Cir. 1999); Faragher v. City of Boca Raton, 524 U.S.
775, 807 (1998) (Element five need not be established if the alleged harassment is
committed by employee’s supervisor.).
For harassment to affect a “term, condition or privilege of employment,” it
must be so “severe or pervasive” as to alter the terms or conditions of employment
and create an abusive working environment. Watts, 170 F.3d at 509. To determine
whether behavior qualifies as severe or pervasive harassment, Federal Courts look
to subjective and objective components. Miller v. Kenworth of Dothan, Inc., 277 F.3d
1269, 1276 (11th Cir. 2002). Thus, to be actionable, the behavior alleged must result
in a work environment that the plaintiff subjectively perceives as abusive and that
a reasonable person would deem abusive. Harris v. Forklift Sys. Inc., 510 U.S. 17,
21–22 (1993). The following factors weigh on whether a work environment is
objectively abusive or hostile: (I) the frequency of the discriminatory conduct; (ii)
its severity; (iii) whether it is physically threatening or humiliating, or a mere
offensive utterance; and (iv) whether it unreasonably interferes with an employee’s
work performance. Faragher, 524 U.S. at 787-788; Ramsey v. Henderson, 286 F.3d
264, 268 (5th Cir. 2002).
It is well settled that the mere utterance of an “epithet which engenders
33

offensive feelings in an employee” does not sufficiently alter the terms or conditions
of employment in a way that violates Title VII. Faragher, 524 U.S. at 787. Thus,
simple teasing, rudeness, offhand remarks, and isolated incidents of derogatory
overtures are insufficient to establish a hostile working environment. Id. at 787-788;
Baker v. Starwood Hotel and Resort, 1999 WL 397405, at *3 (E.D. La. 1999).5
a. Religion
Regarding Plaintiff’s EEOC charge for harassment based on his Muslin
religion, Plaintiff stated in his deposition that while working for Linear Controls on
the East Breaks 165 platform, Duhon and Hammett would say to him “loo, loo,
loo, boom” or “do, do, do, boom,” which Plaintiff testified sounded to him like
“Muslims blowing up stuff.” R. 29, Exh. D, Plaintiff Depo. pp. 106–112. In his
deposition, Plaintiff interpreted this phrase as a reference to “terrorists.” Plaintiff did
not identify any derogatory comments containing the words “religion,” “Muslim”
or “pork.” Id. Plaintiff did not allege or testify to any physical harm or threats of

5

Defendant cites several unpublished opinions from the Eleventh Circuit including
Alansari v. Tropic Star Seafood Inc., 388 Fed. Appx. 902, 905 (11th Cir. 2010), a case
involving a claim of religiously hostile work environment brought by a Muslim. The circuit
court affirmed summary judgment, noting that behavior “including solicitations to go to church
because ‘Jesus would save’ [him], other comments about his Muslim religion, and the
playing of Christian music on the radio ... may have been unwanted and even derogatory
... but it did not rise to a threatening or humiliating level.” Defendant also cites Byrd v.
Postmaster Gen., 582 Fed. Appx.787 (11th Cir. 2014); Richardson v. Dougherty County,
Ga., 185 F. App'x 785, 791 (11th Cir. 2006).
34

harm, just “jokes and comments.” Id.6
As to Plaintiff’s deposition testimony that the statements, “loo, loo, loo, boom”
or “do, do, do, boom,” were religious harassment, Defendant contends that these
comments were insufficient to establish a prima facie case of religious discrimination.
See Lara v. Raytheon Technical Service, 476 Fed. Appx. 218 (11th Cir. 2012)
(Christian employee failed to establish prima facie case of hostile work environment
based on religious harassment since, among other reasons, many of the instances of
harassing behavior, which took place over a month and a half, were not even related
to religion). The Court agrees. The alleged remarks attributed to Duhon and Hammett
have nothing to do with religion, thereby eliminating a required element of Plaintiff’s
prima facie case—harassment based on a protected characteristic. Moreover, Duhon
testified in his deposition that he did not know Plaintiff was a Muslim, R. 29, Exh. D,
Plaintiff’s Depo, pp. 197-98, and Plaintiff has produced no evidence showing that
Hammett knew Plaintiff was a Muslin.
b. Race
As to Plaintiff’s contentions of “yelling and cursing” as the basis for racial
harassment. Plaintiff sets forth no specific facts or evidence that the cursing and
6

In the Complaint, Plaintiff alleges that he was constantly and continuously cursed and
yelled at by his supervisors and co-employees, but sets forth no specific facts or evidence
establishing that the cursing and yelling had anything to do with his religion, or race for that
matter.
35

yelling had anything to do with race. Indeed, in his deposition Plaintiff denied being
the target of any racial slurs. Id. at pp. 197–198. Plaintiffs own conclusory allegations
and unsubstantiated assertions, without even a scintilla of evidence, are insufficient
to establish this claim for hostile work environment.
In his Opposition Memorandum, Plaintiff also contends that requiring him to
work outside in the heat and being denied water breaks inside constitute a hostile
work environment based on race.7 R. 33, p. 9. Considering the factors which weigh
on whether a work environment is objectively abusive or hostile: (i) the frequency of
the discriminatory conduct; (ii) its severity; (iii) whether it is physically threatening
or humiliating, or a mere offensive utterance; and (iv) whether it unreasonably
interferes with an employee’s work performance, Faragher, 524 U.S. at 787-788, the
Court finds that Plaintiff’s hostile work environment claims in this regard lack merit.
As provided in the foregoing analysis as to disparate treatment, Plaintiff has
admitted that working in an outdoor environment was part of his job description and
regular job duties and that his work performance improved while employed with
Linear Controls. The record provides that he worked on the East Breaks 165 platform
from July 16, 2015 to July 26, 2015, then was off for six days before returning. R. 33-

7

While the Court finds that Plaintiff failed to raise an harassment/hostile work
environment claim based on his outdoor work and water breaks in his EEOC Charge, the Court
will consider the claim for purposes of this motion for summary judgment.
36

7, Plaintiff’s Stmt. Of Disp. Facts, responding to ¶¶ 28, 38, 45 of Def. Stmt. Of
Undisp. Facts. According to the Complaint, it was during the period from July 16th
to July 26th that Plaintiff alleges he was not allowed to work inside or take a water
break inside. R. 1, ¶ 8. Plaintiff does not set forth facts showing that this occurred at
other times or on other jobs, nor does he set forth facts showing that he suffered
physical harm or injury as a result. Plaintiff’s claims of hostile work environment are
belied by his complaint that he resigned because he was not returned to work soon
enough. The Court will grant Defendant’s Motion as to hostile work environment on
the basis of race.
C. State Law Claims
1.The Louisiana Employment Discrimination Claims
The Louisiana Employment Discrimination Law, La. R.S. 23:301 (LEDL)
prohibits an employer from discriminating against an individual based on his race,
color, religion, sex, age, or national origin. The scope of the LEDL is the same as
Title VII, and therefore, claims under the LEDL are analyzed under the Title VII
framework and jurisprudential precedent. DeCorte v. Jordan, 497 F.3d 433, 437 (5th
Cir. 2007). Because the outcome of the alleged discrimination claims under Louisiana
law are the same as the outcome under Title VII, for the reasons discussed above, the
LEDL claims must also be dismissed.
37

2. Intentional Infliction of Emotional Distress
For the claim of intentional infliction of emotional distress the plaintiff must
prove 1) that the conduct of the defendant was extreme and outrageous; 2) that the
emotional distress of the plaintiff was severe; and 3) that the defendant desired to
inflict severe emotional distress or knew that severe emotional distress would be
certain or substantially certain to result from his conduct. White v. Monsanto Co.,
585 So.2d 1205, 1209 (La.1991). The conduct must be “...so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized community. Liability does
not extend to mere insults, indignities, threats, annoyances, petty oppressions, or
other trivialities. Persons must necessarily be expected to be hardened to a certain
amount of rough language, and to occasional acts that are definitely inconsiderate and
unkind.” Id. at 1209.
Based on the record before the Court, Plaintiff cannot establish that he was
subjected to the type of deliberate and repeated harassment required to give rise to a
claim for intentional infliction of emotional distress. Further, he has not provided any
evidence that he suffered any emotional distress, much less that the emotional distress
he may have suffered was severe. In fact, Plaintiff describes himself as a “healthy,
young man,” who does not feel mentally unstable, who has never seen a
38

psychiatrist or a psychologist, and who does not feel like he needs mental health
counseling. R. 29-3, Exh. D, pp. 204-208. While he was working for Linear Controls,
Plaintiff testified that his overall performance improved throughout the course of
time. Id. at p. 147. It was not until one year and three months after he resigned from
Linear Controls, while working for his second, subsequent employer and after
Plaintiff filed this lawsuit, that he saw his family doctor for anxiety on one occasion,
December 27, 2016. Id. at pp. 212, 217-225. He made no mention of Linear Controls
to the doctor. Id. Though the doctor offered prescription medication at that time,
Plaintiff testified that he did not feel that he needed it and did not fill the prescription,
nor does he plan to do so. Id. at pp. 224-225.
Plaintiff has failed to provide any evidence that he suffered severe emotional
distress as a result of Defendant's alleged actions. Accordingly, Defendant’s motion
for summary judgment related to Plaintiff’s state law claim for emotional distress will
be granted.
THUS DONE AND SIGNED this 5th day of September, 2017, at Lafayette,
Louisiana.