Johnson v. VT Halter Marine, Inc. et al
Filing
96
MEMORANDUM OPINION AND ORDER granting 88 Motion for Summary Judgment Signed by District Judge Louis Guirola, Jr. on 9/24/2019 (wld)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ANTONIO JOHNSON
v.
VT HALTER MARINE, INC.,
et al.
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PLAINTIFF
Civil No. 1:17cv340-HSO-JCG
DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION [88] FOR SUMMARY JUDGMENT
AND DISMISSING PLAINTIFF’S CLAIMS
BEFORE THE COURT is the Motion [88] for Summary Judgment filed by
Defendants VT Halter Marine, Inc., David Newell, Russell Woodward, Cecil
Maxwell, and Zachary Anderson.1 After due consideration of the record,
Defendants’ Motion, and relevant legal authority, the Court is of the opinion that
Defendants are entitled to judgment as a matter of law, and their Motion [88]
should be granted.
The title of the Motion [88] states that it is Defendant VT Halter Marine, Inc.’s Motion for
Summary Judgment; however, all Defendants are represented by the same attorneys, and
the Motion is signed on behalf of “Attorneys for Defendants.” Defs.’ Mot. [88] at 2. The
Brief [89] also makes clear that all Defendants are seeking summary judgment. See Defs.’
Br. [89] at 24 (“the defendants are entitled to summary judgment as a matter of law on all
claims”); see also id. at 16-21 (arguing that claims against individual Defendants should be
dismissed). Johnson received notice that all Defendants were seeking summary judgment,
and he addresses his claims against the individual Defendants in his Memorandum. See
Pl.’s Mem. [92] at 11-13. The Court will treat the Motion [88] for Summary Judgment as
being filed on behalf of all Defendants.
1
BACKGROUND
A.
Factual background
1.
Johnson’s employment at VT Halter Marine, Inc.
Defendant VT Halter Marine, Inc. (“VTHM”) engages in the design and
construction of commercial and military vessels, and at the times relevant to this
lawsuit, it operated three shipyards in Pascagoula and Moss Point, Mississippi.
Decl. of Stephenie Murray [88-4] at ¶ 1.2 These shipyards were known,
respectively, as the Halter Moss Point shipyard, the Moss Point Marine shipyard,
and the Halter Pascagoula shipyard. Id.
From April 2010 to November 2012, Plaintiff Antonio Johnson (“Johnson” or
“Plaintiff”) worked at the Halter Pascagoula shipyard as a contract worker through
a contract labor company called AmeriForce. Id. at ¶ 4. Johnson was a “Helper”
and later became a “Tool Room Attendant” through AmeriForce. Id. In November
2012, Johnson was hired as a VTHM employee and assigned as a Tool Room
Attendant at the Halter Pascagoula shipyard. Id. On September 1, 2014, Johnson
was reassigned to the Moss Point Marine shipyard, and in mid-February 2015, he
was moved back to the Halter Pascagoula shipyard as a Tool Room Repairer/Tool
Room Attendant. Id.
Throughout his employment at VTHM, Johnson worked in the Tool Room as
either a Tool Room Attendant or a Tool Repairer. Id. at ¶ 5. Johnson’s immediate
Johnson has submitted this same Declaration in support of his opposition to Defendants’
Motion. See Decl. of Stephenie Murray [91-1] at 1.
2
2
supervisor was the Warehouse Manager, Mike Albert (“Albert”), who reported to
VTHM’s Vice President of Production, Hank Stewart (“Stewart”). Id.
2.
Johnson’s termination
According to VTHM’s Corporate Human Resources Manager Stephenie
Murray (“Murray”), “during 2016 and 2017, VTHM was required to implement
several reductions-in-force and shut down both the Halter Moss Point and Moss
Point Marine shipyards during 2016, as the result of the completion of vessel
projects and the lack of new vessel construction contracts to provide additional
work.” Decl. of Stephenie Murray [88-4] at ¶ 13 (emphasis in original). Murray
avers that this was consistent with past practice on reductions in force, and that the
procedure was to first determine those jobs that could be deemed non-essential and
could be eliminated. Id. at ¶ 14. If more than one incumbent employee was in a job
that could be eliminated during the reduction in force, VTHM then turned to the
employee’s seniority or hire date, unless an employee had any disciplinary or
performance write-ups during the preceding year that might impact the decision.
Id.
As part of the reduction in force, VTHM management made the decision to
reduce the number of Tool Room Attendants at the Halter Pascagoula shipyard
from three to two. Id. at ¶ 15. None of the three Tool Room Attendants, including
Johnson, had any documented disciplinary or performance actions during the
preceding year, but Johnson had the most recent hire date. Id. Accordingly, on
March 5, 2017, VTHM made the decision to terminate Johnson as part of the
3
reduction in force. Id. Murray’s Declaration states that some 20 other VTHM
employees were terminated as part of the reduction before Johnson was terminated.
Id. at ¶ 13. The reduction in force continued throughout 2017. Id. at ¶ 15.
Johnson was scheduled to be advised of his termination and released as part
of the reduction in force on May 5, 2017. Id. at ¶ 16; Decl. of Iris Favre [88-5] at ¶ 9.
Ultimately, Johnson was terminated a day earlier, on May 4, 2017, “because of an
incident that involved his repeated refusal to perform a job assigned by his
supervisor, Warehouse Manager Mike Albert.” Decl. of Stephenie Murray [88-4] at
¶ 16 (emphasis in original).
According to Halter Pascagoula shipyard’s Human Resources Manager Iris
Favre (“Favre”), on May 4, 2017, Albert “came to Human Resources with Antonio
Johnson and reported that he had directed Johnson several times to sort and
inventory nuts and bolts that VTHM had in stock on consignment from a
contractor,” because Vice President of Production Hank Stewart (“Stewart”) had
requested an inventory before a scheduled meeting. Decl. of Iris Favre [88-5] at ¶ 9.
Albert informed Favre that Johnson repeatedly refused to perform the job. Id.
When Favre asked Johnson why he had refused, he “stated it wasn’t his job to do so
as a Tool Room Attendant,” and he “insisted that the job should be performed by the
contractor . . . .” Id.
Albert and Johnson then “became involved in a loud argument,” and Favre
went to Stewart’s office to advise him of the situation. Id. After Albert reported to
Stewart what had occurred, Stewart excused Albert and spoke with Johnson. Id.
4
Stewart “explained that the job was [Johnson’s] to do as a Tool Room Attendant and
that he was required to perform any job as directed by his supervisor,” but “Johnson
argued the point loudly.” Id.
At that point, Stewart asked Favre to provide him with the VTHM Change of
Status form documenting Johnson’s termination as part of the reduction in force on
May 5, 2017. Id. Stewart advised Johnson that he was scheduled to be terminated
on that date but that he was terminating Johnson one day early due to his refusal
to help sort the bolts as instructed. Id.; see also Change of Status [88-5] at 18
(effective date changed from 5/5/2017 to 5/4/2017). Murray declares that she and
the Chief Executive Officer approved Johnson’s termination. Decl. of Stephenie
Murray [88-4] at ¶ 16.
VTHM hired “several employees, both before and after Johnson’s
termination, to meet specific needs to complete vessel construction,” but those
positions primarily consisted of skilled Electricians, Shipfitters, Specialty Welders,
and Security Personnel. Id. at ¶ 17. According to Murray, from January 2017
through November 2018, VTHM did not hire any new Tool Room Attendants or Tool
Room Repairers. Id.
3.
Johnson’s complaints
In this case, Johnson alleges that he “endured numerous actions of
discrimination” during his employment at VTHM, Am. Compl. [42] at 3, and that he
was terminated in retaliation for “engag[ing] in the protected activity of voicing and
filing a discrimination complaint with the Equal Employment Opportunity
5
Commission,” id. at 4-5. Johnson complains of separate incidents involving each of
the individual Defendants, David Newell (“Newell”), Russell Woodward
(“Woodward”), Cecil Maxwell (“Maxwell”), Nathan Shepard (“Shepard”),3 and
Zachary Anderson (“Anderson”). Based upon the record, it appears that the
incidents giving rise to Plaintiff’s claims occurred on the following dates: (1) those
with Shepard sometime between October 22, 2012, and September 7, 2013;4 (2)
those with Woodward on or before December 6, 2013;5 (3) those with Maxwell on
July 31, 2014, see Decl. of Iris Favre [88-5] at ¶ 3; (4) those with Anderson on
October 14, 2014, see Employee Warning Notice [88-6] at 2; and (5) those with
Newell on March 17, 2017, see Pl.’s Dep. [88-1] at 81.
Shepard resigned from VTHM on September 7, 2013; Woodward resigned on
December 6, 2013; Maxwell resigned on February 29, 2015; and Anderson resigned
on August 15, 2018. Decl. of Stephenie Murray [88-4] at ¶ 9. Johnson was
Based upon the employment records submitted by VTHM, it appears that Shepard’s last
name is spelled “Shepherd.” See Change of Status [88-5] at 8. For purposes of this Order,
the Court will utilize the spelling convention employed in the Amended Complaint—
Shepard. See Am. Compl. [42] at 1-2.
4 The Amended Complaint [42] does not allege on what date the incident involving Shepard
occurred. Nor have the parties directed the Court to any summary judgment evidence
revealing a specific date. The evidence VTHM has presented demonstrates that Shepard
was hired on October 22, 2012, that he resigned effective September 7, 2013, and that the
incident occurred sometime between those two dates. See Decl. of Iris Favre [88-5] at ¶ 2;
Change of Status [88-5] at 8; Decl. of Jim Ternyak [88-7] at ¶¶ 1-2. Johnson did not
complain to Human Resources about this incident. Decl. of Iris Favre [88-5] at ¶ 2.
5 The Amended Complaint [42] does not assert, and there is no indication in the record, on
what specific date the incident involving Woodward occurred. Johnson’s Memorandum [92]
in opposition to summary judgment states only that it occurred in 2013. See Pl.’s Mem. [92]
at 6. The competent summary judgment evidence reflects that Woodward resigned from
VTHM on December 6, 2013, see Decl. of Stephenie Murray [88-4] at ¶ 9, such that the
incident would have occurred at some point on or before that date.
3
6
terminated effective May 4, 2017. Change of Status [88-5] at 18.
B.
Procedural background
Johnson filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on or about May 27, 2017. EEOC Charge [88-1]
at 53. He alleged that he was subjected to race and sex discrimination and to
retaliation. See id. Johnson provided a statement regarding his employment and
discharge, indicating that he was hired by VTHM in April 2010, and that on March
17, 2017, a superintendent referred to him by using a racial epithet. Id. According
to Johnson’s written statement, that incident
was reported and [the superintendent] supposedly was suspended for
three days. Policy states “no tolerance” for discrimination. I felt that
my safety was threatened. On May 4, 2017, I was laid off.
Superintendent David Newell
Management said it was a reduction in force. But we been [sic] hiring
people for weeks, even same week I was let go.
I believe I was subjected to a hostile environment because of my race
(black) and laid off because of my race (black) and sex (male) and in
retaliation for reporting the harassment/discrimination in violation of
Title VII of the Civil Rights Act of 1984, as amended. There [illegible]
females who were not laid off, which one had a write-up. I never was
written up, never. They [sic] also were some employees with more
missed time than me, even my [illegible] boss man Mike Albert. Also
were [sic] late more than I was, which all plays a factor in during layoffs.
Id.
The EEOC subsequently provided Johnson with a Notice of Right to Sue, and
he timely filed this lawsuit on December 11, 2017. Johnson filed an Amended
Complaint [42] on May 29, 2018, which is the operative pleading. The Amended
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Complaint names VTHM, Newell, Woodward, Maxwell, Shepard, and Anderson as
Defendants. Johnson’s claims against Shepard were subsequently dismissed
without prejudice pursuant to Federal Rule of Civil Procedure 4(m). See Order [87]
at 4.
Johnson advances claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., against VTHM for hostile work environment and retaliatory
discharge, see Am. Compl. [42] at 5-7, and against all Defendants for intentional
race discrimination and retaliatory discharge under 42 U.S.C. § 1981, id. at 7-8.
Defendants’ Motion [88] for Summary Judgment asserts that there are no disputed
issues of material fact and that they are entitled to judgment as a matter of law on
Johnson’s claims. With respect to Johnson’s claims against the individual
Defendants under § 1981, Defendants argue that there is no individual liability
under that statute, such that these claims are insufficient as a matter of law. Defs.’
Br. [89] at 17-18.6
With respect to Johnson’s hostile work environment claims against VTHM,
Defendants maintain that these claims are “based exclusively on Newell’s one
alleged racial comment in May 2017,” Defs.’ Br. [89] at 19 (emphasis in original),
and that this one comment was not sufficiently severe or pervasive to alter the
terms and conditions of Johnson’s employment or to create an abusive working
Because Defendants employ a cover page on their Brief [89], that document’s pagination
differs from the Court’s automatically-generated page numbers in its Case
Management/Electronic Case Files (“CM/ECF”) system. Throughout this Order, the Court
will refer to the CM/ECF page numbers.
6
8
environment, id. (quoting McCoy v. City of Shreveport, 492 F.3d 551, 558 (5th Cir.
2007)). Defendants maintain that when Johnson complained to Human Resources
about Newell’s alleged comment, “VTHM promptly investigated and indisputably
took prompt effective corrective action,” and that there was no subsequent racial
harassment, precluding Johnson’s hostile work environment claim. Id. at 21.
As for Johnson’s retaliatory discharge claim against VTHM, Defendants
argue that even if Johnson has produced sufficient circumstantial evidence to
support a prima facie case of retaliation, “VTHM has produced uncontroverted
evidence to establish that Johnson’s termination was part of ongoing economic
reductions-in-force during 2016 and 2017.” Id. at 23.
II. DISCUSSION
A.
Summary judgment standard
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). If the movant carries this burden, “the
nonmovant must go beyond the pleadings and designate specific facts showing that
there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc).
To rebut a properly supported motion for summary judgment, the opposing
party must show, with “significant probative evidence,” that there exists a genuine
issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.
2000). “A genuine dispute of material fact means that evidence is such that a
9
reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC&R
Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quotation omitted). If the
evidence is merely colorable, or is not significantly probative, summary judgment is
appropriate. Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co., 671
F.3d 512, 516 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986)). In deciding whether summary judgment is appropriate, the Court
views facts and inferences in the light most favorable to the nonmoving party. RSR
Corp. v. Int’l Ins. Co., 612 F.3d 851, 858 (5th Cir. 2010).
B.
Johnson’s § 1981 claims against the individual Defendants
42 U.S.C. § 1981 provides that “[a]ll persons within the jurisdiction of the
United States shall have the same right in every State and Territory to make and
enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a). The
statute defines the phrase “make and enforce contracts” to include “the making,
performance, modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship.” 42
U.S.C. § 1981(b). “The rights protected by this section are protected against
impairment by nongovernmental discrimination and impairment under color of
State law.” 42 U.S.C. § 1981(c).
The United States Court of Appeals for the Fifth Circuit has recognized that
“there is a tension” in its § 1981 jurisprudence between its decisions in Bellows v.
Amoco Oil Co., 118 F.3d 268 (5th Cir. 1997), and Oden v. Oktibbeha County, Miss.,
246 F.3d 458 (5th Cir. 2001), “with respect to the liability of individual defendants
10
who are not parties to the employment contract.” Foley v. Univ. of Houston Sys.,
355 F.3d 333, 338 (5th Cir. 2003); see also Jones v. City of Houston, 756 F. App’x
341, 348 (5th Cir. 2018) (recognizing the “tension” and stating “we do not actually
decide whether § 1981 claims are cognizable against government officials in their
individual capacities.”) (citing Foley, 355 F.3d at 338).
To the extent an individual defendant who is not a party to an employment
contract cannot be held liable under § 1981, Johnson’s claims against the individual
Defendants would be subject to dismissal on that basis. None of the individual
Defendants here were Johnson’s supervisors, and he has not presented competent
summary judgment evidence tending to show that any of the individual Defendants
were parties to his employment contract with VTHM. See Foley, 355 F.3d at 337
(citing Felton v. Polles, 315 F.3d 470, 481 (5th Cir. 2002)). However, in light of the
“tension” in the Fifth Circuit authority on this issue, see id., out of an abundance of
caution the Court will consider Johnson’s § 1981 claims against the individual
Defendants on their merits. Because employment discrimination claims brought
under 42 U.S.C. § 1981 “are analyzed under the evidentiary framework applicable
to claims arising under Title VII,” Lawrence v. Univ. of Tex. Med. Branch at
Galveston, 163 F.3d 309, 311 (5th Cir. 1999), the Court will consider Johnson’s §
1981 and Title VII claims together.
C.
The merits of Johnson’s Title VII and § 1981 claims
Johnson claims that he is a member of a protected class and that VTHM
subjected him to actions creating a hostile working environment because of his race,
11
in violation of Title VII. Am. Compl. [42] at 6. Johnson also advances a Title VII
retaliatory discharge claim against VTHM, see id. at 6-7, and claims that all
Defendants intentionally discriminated against him and created a hostile work
environment in violation of § 1981, id. at 7-8. Finally, Johnson raises a retaliatory
discharge claim against all Defendants under § 1981. Id. at 7-8.
1.
Hostile work environment claims
In order to support a claim for a hostile working environment under either
Title VII or § 1981, a plaintiff must prove that: (1) he belongs to a protected group;
(2) he was subjected to unwelcome harassment; (3) the harassment complained of
was based on race; (4) the harassment complained of affected a term, condition, or
privilege of employment; and (5) the employer knew or should have known of the
harassment in question and failed to take prompt remedial action. Ramsey v.
Henderson, 286 F.3d 264, 268 (5th Cir. 2002). For harassment based on race to
affect “a term, condition, or privilege of employment,” it must be “sufficiently severe
or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.” Id. (quoting Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993)).
a.
Johnson’s claims against Woodward, Maxwell, and Anderson
Defendants Woodward, Maxwell, and Anderson argue that Johnson cannot
show that any alleged harassment by these individuals was based on race. See
Defs.’ Br. [89] at 18. Defendants point out that Johnson never complained about
any of the incidents involving these three Defendants, and no evidence has been
12
submitted to show that Johnson’s race played any part in the episodes involving
these three Defendants. Id. Defendants maintain that for this reason alone,
Woodward, Maxwell, and Anderson are entitled to dismissal of the hostile work
environment claims. Id.7
In opposition to Defendants’ request for summary judgment, Johnson refers
to a single incident that occurred between him and each Defendant. The Court will
address each alleged incident separately.
(1)
Incident with Woodward
With respect to Woodward, Johnson refers to a single incident that occurred
in 2013, when Woodward “used profanity towards Johnson, which Johnson then
reported to HR Manager Iris Favre.” Pl.’s Mem. [92] at 6-7. Johnson relies upon
his own deposition testimony to support this allegation. See id.
Johnson testified that Woodward came to the tool room
from the fab shop wanting something that he couldn’t have. No matter
about being a white hat or not, I couldn’t give it to him. And [Woodward]
just went off on me and Ms. Vicki Johns. 8
Pl.’s Dep. [91-2] at 146-47. Johnson agreed that Woodward used profanity because
Johnson would not give Woodward the item Woodward wanted. Id. at 147.
Johnson counters that he has produced sufficient evidence to survive summary judgment
against all individual Defendants, and he relies in his brief upon a racial epithet used by
supervisor Defendant Newell. See Pl.’s Mem. [92] at 11. As for Maxwell, Anderson, and
Woodward, it is unclear how an individual employee could be held liable for a comment
made by a different employee, during an incident with which they bore no connection.
Johnson has not cited any competent evidence that Woodward, Maxwell, or Anderson was
present when this alleged comment was made or that they had any involvement in the
incident leading up to it.
8 Johns was also a Tool Room Attendant. Pl.’s Dep. [91-2] at 147.
7
13
Johnson claims that Woodward exhibited hostility and posits that he “shouldn’t
have to be subjected to be [sic] cursed out and things like that for me simply doing
my job.” Id. Johnson could not “recall any other complaints” about Woodward. Id.
at 147; see Pl.’s Dep. [88-1] at 149 (“That’s the only incident I can remember
happening with [Woodward]”). Woodward resigned from VTHM on December 6,
2013. See Decl. of Stephenie Murray [91-1] at ¶ 9.
(2)
Incident with Maxwell
In opposition to Defendants’ request for summary judgment, Johnson refers
to an incident which purportedly occurred in late July 2014, during which Maxwell
threw a “brass washer” at Johnson. Pl.’s Mem. [92] at 5. In presenting his version
of the facts in his Memorandum, Johnson does not cite to the record or indicate
where any evidence supporting his argument may be located.
Johnson did discuss the alleged incident involving Maxwell in his deposition.
See Pl.’s Dep. [88-1] at 142. According to Johnson, the item Maxwell threw at him
was a “little brass washer.” Id. Johnson described the incident as follows:
I don’t know the date, but [Maxwell] was clearing an employee out. And
the rules are, when employees come, they have to turn in anything that
Halter gave them. And the employee was turning all this stuff in. He
put his brass washer on the counter, which is what he was supposed to
do. Cecil [Maxwell] reached over him, got the brass washer from off the
counter. Cecil already knew that we have to take those in.
So I told him, I’m going to have to have that brass washer. He
said he was going to take it to his foreman and his foreman can bring it
back up there, which makes no sense because it’s already where it’s
supposed to be.
So I told him I was not going to write the employee that was being
laid off a gate pass unless I got that brass washer. He got mad and
threw it back in the window. It hit the side of the wall and it landed on
the counter.
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Id. at 142-43. Johnson acknowledged that the washer did not hit him. Id. at 143.
Johnson verbally reported this incident to Favre, VTHM’s Human Resources
Manager at the Halter Pascagoula shipyard, but he did not want to file a formal
complaint. Id.; see also Decl. of Iris Favre [88-5] at ¶ 3. Maxwell was instructed to
apologize to Johnson, which he did, but Johnson contends that the apology was not
sincere. Pl.’s Dep. [88-1] at 144-45. According to Johnson, Maxwell stated that he
was only apologizing because he was told to do so. Id. at 145. Johnson could not
recall any other incidents involving Maxwell, id., who resigned from VTHM on
February 29, 2015, Decl. of Stephenie Murray [91-1] at ¶ 9.
According to Favre, Maxwell maintained that he did not throw the washer at
Johnson but tossed it on the window counter and left. Decl. of Iris Favre [88-5] at ¶
3. Maxwell “did not mean anything by it,” id., and “Johnson never suggested to
[Favre] or to [her] knowledge anyone else that he believed his race (African
American) played any part in the episode,” id.
(3)
Incident with Anderson
Johnson claims that at some point while he was the Tool Room Attendant at
the Moss Point Marine shipyard, Anderson, who was a Shipfitter Lead, “threw a
torch tip and soapstone at him, striking him.” Pl.’s Mem. [92] at 5. Johnson cites
nowhere to the record to support his version of the event. See id. at 5-6. Based
upon the Court’s review of the record, it appears that Johnson testified during his
deposition that on or about October 15, 2014, Anderson threw a “tip” for a welding
torch at him, after Anderson thought Johnson had called him a child. Pl.’s Dep. [8815
1] at 151, 153-54. Johnson estimated the tip to be about two inches long and “about
bigger than somewhere close to” the width of a pen. See id. at 151.
At the time of this incident, Sherry Henry, formerly Sherry Poole (“Henry”),
was the Human Resources Manager at the VTHM Moss Point Marine shipyard.
Decl. of Sherry Henry [88-6] at ¶ 1. Henry testified as one of VTHM’s Federal Rule
of Civil Procedure 30(b)(6) designees that, during this same incident, Anderson
threw a soapstone through a window at Johnson. VTHM’s Rule 30(b)(6) Dep. [88-2]
at 33. A soapstone is used to write on the metal on ships and is “real lightweight.”
Id. According to Henry, although Johnson testified that Anderson hit him, Henry
did not recall Johnson ever saying during the investigation that these items hit
him. Id. at 35. Henry’s Declaration avers that Johnson “never complained that any
employee mistreated, harassed or discriminated against him because of his race
(African American).” Decl. of Sherry Henry [88-6] at ¶ 2.
Henry has submitted the statements she obtained from Anderson, Johnson,
and two other witnesses during her investigation of the incident. According to
Johnson’s statement [88-6], the incident involved whether a third employee could
obtain a torch tip without a “white hat,” meaning a supervisor. See Pl.’s Statement
[88-6] at 10-11. When Anderson arrived, he told Johnson that “[i]t’s common sense
that if a guy turns a torch in with a tip he [sic] going to need one back.” Id. “[A]fter
things started getting worse,” Johnson told Anderson “he needed to get his young
self away from this window his lil 20 something year old self away from here
disrespecting me cause I’m doing my job.” Id. Johnson alleges that Anderson then
16
“decided that wasn’t enough drama so he boldly called me ignorant by stated [sic]
‘you’re not the first ignorand [sic] person I had to deal with.’” Id. (emphasis in
original). Before Anderson walked away, he “threw the box of soapstone that was
sitting in the window and the tip [Johnson] just gave him back in the window at
[Johnson].” Id. Anderson received a verbal warning for this incident on October 16,
2014. See Warning [88-6] at 2. He subsequently resigned from VTHM on August
15, 2018. Decl. of Stephenie Murray [91-1] at ¶ 9.
(4)
Plaintiff’s hostile work environment claims against Woodward,
Maxwell, and Anderson, individually
Construing the record evidence in Johnson’s favor, even if Defendants
Woodward, Maxwell, and Anderson acted in the manner that Johnson alleges,
Johnson has not presented sufficient competent evidence to survive summary
judgment on his hostile work environment claim against these three Defendants.
The record contains evidence of a single, isolated incident involving each Defendant,
and Johnson has not shown that any of these incidents had any connection to his
race, or that any incident was sufficiently serious to create a hostile work
environment.
Even if Johnson was subjected to unwelcome harassment by Woodward,
Maxwell, or Anderson that affected a term, condition, or privilege of employment,
Johnson has not presented any evidence tending to show that the harassment
complained of was based on his race. See Ramsey, 286 F.3d at 268. Uncivil actions
in the workplace that do not affect a term, condition, or privilege of employment, or
that are not based upon race or some other protected characteristic, are simply not
17
actionable under either Title VII or § 1981. See Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006) (“Title VII . . . does not set forth ‘a general civility code
for the American workplace.’”) (quoting Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 80 (1998)). Johnson’s hostile work environment claims against
individual Defendants Woodward, Maxwell, and Anderson should be dismissed.
b.
Johnson’s claims against VTHM and Newell
Johnson also advances hostile work environment claims against VTHM and
Newell individually. In support of these claims, he alludes to the previouslydiscussed incidents involving Woodward, Maxwell, Anderson, and one involving
Shepard. See Pl.’s Mem. [92] at 12 (referring to “the Woodward episode”). As for
Shepard, Johnson claims that, sometime before September 7, 2013, Shepard “threw
two pairs of earplugs at Mr. Johnson because he was following proper protocol
mandated within the Tool Room” of the Halter Pascagoula shipyard. Pl.’s Mem.
[92] at 4; see also Pl.’s Dep. [88-1] at 131-32, 133-34. According to Johnson, he “was
doing [his] job” when Shepard
come asking for something that they wasn’t allowed to get, and he got a
little upset, and threw something back in the window at [Johnson].
. . .
Because [Shepard] couldn’t get a box of earplugs, he got mad.
Pl.’s Dep. [88-1] at 134. Johnson testified in his deposition that, while Shepard was
a “lead” and wanted to take earplugs to his employees, Johnson could not provide
Shepard with a box of earplugs as requested because Shepard was not a
superintendent or a supervisor. Id. at 135-36.
After Shepard threw the earplugs at Johnson, Johnson climbed through the
18
Tool Room window and followed Shepard out into the shipyard. Id. at 140. Johnson
told Shepard “don’t throw at me again” and explained that he has “to listen to what
[his] boss man tell[s] me to do just like you all.” Id.
Johnson did not complain to Human Resources about the incident with
Shepard. Id. at 135. Instead, Johnson informed his immediate supervisor Mike
Albert of the incident, and Albert “got with Jim Turniak,” who was either the
pipefitter foreman or supervisor. See id. at 134-35. Subsequently, Turniak and
Shepard came to the Tool Room. Id. at 141. Shepard and Johnson “shook hands
[and] apologized,” id., and Johnson did not recall another incident with Shepard
after that, id. Shepherd resigned from VTHM on September 7, 2013. See Decl. of
Stephenie Murray [88-4] at ¶ 9.
Johnson also claims that he was subjected to unwelcome harassment because
of his race when Newell referred to him using a racial epithet. Id. (emphasis in
original). The incident involving Newell occurred on or about March 17, 2017, while
Newell was a superintendent for the electrical department at the Halter Pascagoula
shipyard. Pl.’s Dep. [88-1] at 80-81. He was not Johnson’s supervisor. Id.; see also
Decl. of Stephenie Murray [88-4] at ¶ 11. Johnson, Newell, and two other witnesses
provided statements to human resources about what occurred, but the witnesses
disagreed as to what phrase Newell used. Compare Pl.’s Statement [88-5] at 12 and
Terry Davis’s Statement [88-5] at 13, with Scott Brown’s Statement [88-5] at 15 and
Newell’s Statement [88-5] at 16.
Johnson’s version of the incident was that an employee named Scott Brown
19
(“Brown”) approached his window in the Tool Room needing a rope, and Johnson
informed Brown that he would need a supervisor to obtain the item. Pl.’s
Statement [88-5] at 12. Brown called his own supervisor, Newell, on speakerphone
to get the necessary approval in Johnson’s hearing, and during Brown’s
conversation with Newell, Newell allegedly referred to Johnson by using a racial
epithet. Id.
(1)
Prima facie case of hostile work environment
In order to support a claim for a hostile working environment under either
Title VII or § 1981, a plaintiff must prove that the harassment complained of was
based on race. See Ramsey, 286 F.3d at 268. To the extent Johnson relies upon the
individual incidents involving Maxwell, Anderson, Shepard, and Woodward in order
to attempt to establish a prima facie case of hostile work environment against
either Newell individually or VTHM, the record contains insufficient evidence from
which a reasonable jury could conclude that those individuals’ actions were based
upon race or any animus related to Johnson’s race. Nor is there evidence that these
alleged incidents were part of a pattern of race-based harassment. Therefore, the
Court need not consider these incidents in determining whether Johnson was
subjected to a hostile work environment by Newell or VTHM. See Hernandez v.
Yellow Transp., Inc., 670 F.3d 644, 654 (5th Cir. 2012). The Court will only consider
the actions of Newell, which is the only other incident referenced in the summary
judgment record, in determining whether Johnson has established a prima facie
hostile work environment claim against Newell or VTHM.
20
To establish a hostile work environment claim, a plaintiff must show
harassment based on race that affected “a term, condition, or privilege of
employment,” meaning that it was “sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.”
Ramsey, 286 F.3d at 268 (quotation omitted). In Hernandez, one plaintiff “was
called a racially derogatory term on one occasion and once saw a poster or letter
that was derogatory about Hispanics.” 670 F.3d at 652. The other plaintiff “once
heard Mexicans referred to in a derogatory manner over a company radio and had
seen a discriminatory posting or drawing.” Id. According to the Fifth Circuit, “[i]f
in fact only two incidents such as these occurred over a ten-year period, this would
not create a fact issue that the harassment was ‘sufficiently severe or pervasive’
such that ‘an abusive working environment’ had been shown.” Id.
Hernandez is instructive. In this case, Johnson worked at a VTHM shipyard
for more than seven years, from April 2010 through May 4, 2017, beginning as a
contract worker. Decl. of Stephenie Murray [88-4] at ¶¶ 4, 16. He was an employee
of VTHM from November 2012 until his termination in May 2017. While the racial
epithet, if actually used by Newell over the speakerphone to another employee while
in Johnson’s hearing, is certainly offensive and always highly inappropriate,
Johnson has not directed the Court to any competent summary judgment evidence
tending to show that this single, isolated incident was sufficiently severe or
pervasive to create an abusive working environment. See Hernandez, 670 F.3d at
652. Because Johnson has not created a fact issue on this element of his hostile
21
work environment claim, Newell and VTHM are entitled to summary judgment.
(2)
VTHM’s prompt remedial action
Even if Johnson has established a prima facie case of hostile work
environment, VTHM argues that it “promptly investigated and indisputably took
prompt effective corrective action, notwithstanding the fact that Newell’s racial
comment was disputed.” Defs.’ Br. [89] at 21 (emphasis in original).
According to the Fifth Circuit, “[a] defendant may avoid Title VII liability
when harassment occurred but the defendant took ‘prompt remedial action’ to
protect the claimant.” Williams-Boldware v. Denton Cty., Tex., 741 F.3d 635, 640
(5th Cir. 2014) (quoting Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 329
(5th Cir. 2004)). “What constitutes prompt remedial action is a fact-specific inquiry
and ‘not every response by an employer will be sufficient’ to absolve the employer of
liability under Title VII.” Id. (quoting Hockman, 407 F.3d at 329). “An employer
may be liable despite having taken remedial steps if the plaintiff can establish that
the employer’s response was not reasonably calculated to halt the harassment.” Id.
In this case, after Johnson complained to Human Resources, Favre advised
Johnson that he and witness Terry Davis needed to write statements describing
what had occurred. Decl. of Iris Favre [88-5] at ¶ 4. Favre then directed Henry to
obtain statements from Newell and Brown, which were supplied to Favre, id. at ¶ 5,
and these materials were submitted to Murray, id. at ¶ 7.
Murray reviewed the investigation summaries and statements with Vice
President of Production Hank Stewart, who was Newell’s immediate supervisor,
22
and with the chief executive officer (“CEO”) of VTHM. Murray also provided the
two executives with additional information indicating that Favre and Henry had
stated that Johnson promptly reported his complaint and appeared to be upset and
distressed when he did so. Decl. of Stephenie Murray [88-4] at ¶12. Murray
reviewed Newell’s employment record and advised Stewart and the CEO that there
were no previous complaints of any kind against Newell. Id. The three agreed that
the evidence was inconclusive but that Newell should be disciplined with a threeday suspension without pay and a written warning. Id. Newell was also required
to sign a new acknowledgement form to confirm that he had read, understood, and
agreed to fully comply with VTHM’s Equal Employment Opportunity/Harassment
Policy. Id.
Every indication from the record is that VTHM took prompt remedial action
that was reasonably calculated to halt any harassment, and Johnson has not
pointed to any evidence which disputes these facts. For this reason as well,
summary judgment is appropriate on Johnson’s hostile work environment claim
against Newell and VTHM. See, e.g., Williams-Boldware, 741 F.3d at 640.
2.
Johnson’s retaliatory discharge claims
The Amended Complaint [42] alleges that “[a]s a result of filing
discrimination charges against Defendants, Plaintiff feels his employment was
terminated.” Am. Compl. [42] at 4. Johnson asserts that he
was discriminated and retaliated against in violation of Title VII of the
Civil Rights Act of 1964, as amended, because he was engaged in the
protected activity of voicing and filing a discrimination complaint with
the Equal Employment Opportunity Commission. As a result of filing
23
discrimination charges against Defendants, Plaintiff’s employment was
terminated.
Id. at 4-5. VTHM “retaliated against Plaintiff after he made reports of
discrimination to the EEOC,” and allegedly “unjustly subject[ed] him to unjust
scrutiny, exclusion, and termination.” Id. at 6-7. Johnson further asserts that
“Defendants, agents, and employees of Defendants, retaliated against Plaintiff after
he made reports of intentional discrimination to the EEOC.” Id. at 8.9
In order to establish a prima facie case of retaliation, a plaintiff must
demonstrate 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.” Thomas v. Tregre, 913 F.3d 458, 463 (5th Cir. 2019), as revised (Jan. 25,
2019) (quoting McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007)
(per curiam)). A relatively short gap in time between a complaint and an adverse
employment action can support a causal connection at the summary judgment
stage. See, e.g., Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (finding
five days to be sufficiently close to provide the causal connection required to make
out a prima facie case of retaliation, but noting that “a time lapse of up to four
Johnson was discharged on May 4, 2017, before he signed his EEOC charge on May 27,
2017. See Charge [88-1] at 40. There is no indication in the summary-judgment record of
any additional complaints Johnson made to the EEOC. Since the EEOC charge was not
filed until after Johnson’s termination, it is unclear from the Amended Complaint what
protected activity Johnson claims he engaged in that led VTHM to terminate him. In
opposition to summary judgment, Johnson opines that he was retaliated against for making
complaints to VTHM’s Human Resources department and by displaying interest in filing an
EEOC charge. Each of these scenarios will be discussed in analyzing Johnson’s retaliatory
discharge claims against VTHM.
9
24
months has been found sufficient to satisfy the causal connection for summary
judgment purposes”) (quoting Weeks v. NationsBank, N.A., No. CIV.A.3:98-CV1352M, 2000 WL 341257, at *3 (N.D. Tex. 2000)); see also, e.g., Johnson v. Halstead,
916 F.3d 410, 421 (5th Cir. 2019) (holding that, on a motion for judgment on the
pleadings, three-month gap between complaints of discrimination and allegedly
adverse transfer support an allegation that the two events were related at pleading
stage).
If the employee establishes a prima facie case of retaliation, the burden shifts
to the employer to articulate a legitimate, non-retaliatory reason for its decision.
Feist v. La., Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir.
2013) (quotation omitted). “The employer’s burden is one of production, not
persuasion, and does not involve a credibility assessment.” Black v. Pan Am. Labs.,
L.L.C., 646 F.3d 254, 259 (5th Cir. 2011).
If the employer states such a reason, the burden shifts back to the employee
to demonstrate that the employer’s reason is actually a pretext for retaliation.
Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 427 (5th Cir. 2017), reh’g denied
(Apr. 27, 2017); Feist, 730 F.3d at 454. To show pretext, the employee must produce
evidence that could lead a reasonable factfinder to conclude that the adverse
employment action would not have occurred “but for” the employee’s decision to
engage in protected activity. Alkhawaldeh, 851 F.3d at 427. Although close timing
between a protected activity and an adverse employment action may be sufficient to
establish a prima facie case alone, it is insufficient to create a fact issue at the
25
pretext stage if an employer has stated a non-retaliatory reason for its decision.
Outley v. Luke & Assocs., Inc., 840 F.3d 212, 220 (5th Cir. 2016) (citing Aryain v.
Wal-Mart Stores Tex. LP, 534 F.3d 473, 487 (5th Cir. 2008)).
a.
Individual Defendants
Even assuming Johnson can pursue a § 1981 retaliatory discharge claim
against the individual Defendants, they have presented evidence that two of the
remaining individual Defendants, Woodward and Maxwell, were no longer
employed by VTHM when the decision to terminate Johnson’s employment was
made. See Decl. of Stephenie Murray [88-4] at ¶ 9.10 Moreover, there is no
competent summary judgment evidence from which a reasonable jury could
conclude that Anderson or Newell played any part whatsoever in the decision to
terminate Johnson. See generally id. at ¶¶ 13-16 (discussing the reductions-in-force
and Johnson’s termination); Decl. of Iris Favre [88-5] at ¶¶ 8-9 (same). Johnson has
not presented any evidence tending to show that any of the individual Defendants
took an adverse employment action against him. He cannot establish a prima facie
case of retaliatory discharge against any of these Defendants, and his retaliatory
discharge claims against the individual Defendants should be dismissed.
Defendants contend that Woodward, Maxwell, Shepard, and Anderson “were no longer
employed by VTHM when the decision was made to terminate Johnson’s employment as
part of the ongoing reductions-in-force . . . .” Defs.’ Br. [89] at 17. However, the record
evidence reflects that Anderson did not resign until August 15, 2018, Decl. of Stephenie
Murray [88-4] at ¶ 9, which would have been after Johnson’s May 4, 2017, termination, id.
at ¶ 16. Shepard is no longer a Defendant in this case. See Order [87] at 4.
10
26
b.
VTHM
The Amended Complaint asserts that VTHM retaliated against Johnson by
terminating him because he made reports of discrimination to the EEOC. See Am.
Compl. [42] at 6-7. The only EEOC charge in the record was signed by Johnson on
May 27, 2017, after he had already been discharged on May 4, 2017. See Charge
[88-1] at 40. Johnson cannot show a causal connection between the protected
activity of reporting discrimination to the EEOC and his termination.
To the extent Johnson maintains that he was terminated in retaliation for his
complaints to VTHM’s Human Resources department, VTHM does not dispute that
Johnson can make out a prima facie case of retaliatory discharge. See Defs.’ Br. [89]
at 22-23. Instead, VTHM argues that it “has produced uncontroverted evidence to
establish that Johnson’s termination was part of ongoing economic reductions-inforce during 2016 and 2017,” which it argues constituted a legitimate nonretaliatory reason for the termination. Id. at 23.
VTHM has proffered legitimate, non-retaliatory reasons for its decision; thus,
the burden shifts back to Johnson to demonstrate that VTHM’s reason is actually a
pretext for retaliation. See Alkhawaldeh, 851 F.3d at 427; Feist, 730 F.3d at 454.
Johnson has not done so. Viewing all of the facts in a light most favorable to
Johnson, there is no competent evidence that could lead a reasonable factfinder to
conclude that Johnson’s termination would not have occurred “but for” his decision
to engage in protected activity. See Alkhawaldeh, 851 F.3d at 427. Any temporal
proximity between Johnson’s complaints about Newell and his termination is
27
insufficient by itself to create a genuine dispute of material fact as to pretext. See
Outley, 840 F.3d at 220; Aryain, 534 F.3d at 487.
Johnson attempts to show that his supervisor viewed him as the most
competent worker in the Tool Room, and that he did not receive as many complaints
as the other workers, such that he should not have been terminated as part of the
reduction in force. See Pl.’s Mem. [92] at 13-15. VTHM has explained its nonretaliatory criteria for determining who would be terminated. Johnson has not
produced competent evidence tending to show that VTHM did not in fact follow
these criteria,11 and his arguments that VTHM’s criteria should have been different
are not enough to show pretext. Even if VTHM erroneously applied its chosen
criteria, a mere mistake is not sufficient to establish pretext. See Mayberry v.
Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995). “The question is not
whether an employer made an erroneous decision; it is whether the decision was
made with [retaliatory] motive.” Id.
Johnson also argues that he displayed an interest in pursuing an EEOC
claim related to the incident with Newell when he requested his file from the
One of the criteria VTHM used for the reduction in force was seniority or hire date,
unless an employee had any disciplinary or performance write-ups during the preceding
year that may impact the decision. Decl. of Stephenie Murray [88-4] at ¶ 14. In Johnson’s
Memorandum, he argues that one of the other Tool Room Attendants “had a disciplinary
write-up that was disclosed to Johnson by Mike Albert himself.” Pl.’s Mem. [92] at 14
(citing Pl.’s Dep. [91-2] at 103). Even if this worker received such a write-up, Johnson does
not allege that the write-up occurred within the preceding year, which was VTHM’s stated
criteria. See Decl. of Stephenie Murray [88-4] at ¶ 14. Nor is there any competent
summary judgment evidence showing that any such write-up occurred within one year of
the decision regarding the reduction in force. The evidence presented by VTHM reflects
that none of the three Tool Room Attendants had any documented disciplinary or
performance actions during the year preceding the termination decision. Id. at ¶ 15.
11
28
Human Resources department prior to his termination, but his request was refused.
Pl.’s Mem. [91] at 13 (citing Pl.’s Dep. [91-2] at 127-28). As such, he contends that
based upon this incident, “VTHM had motive to get rid of Johnson.” Id. According
to Johnson, Favre did not refuse to allow him to view his personnel file, but instead
informed him that he would need to schedule an appointment to review his
personnel file in the office, rather than simply remove the documents and take them
with him. Pl.’s Dep. [91-2] at 127-28.
The portion of the record cited by Johnson is devoid of any indication that he
ever informed Favre or anyone else at VTHM of his intention to file an EEOC
charge. While Johnson speculated in his deposition that requiring him to make an
appointment would give Favre “ample enough time if something is in [Johnson’s
personnel file] that’s not supposed to be in there to come out,” id. at 128, there is no
allegation or indication that anything was removed from Johnson’s personnel file.
Nor does Johnson cite any other evidence to show that the potential for an EEOC
charge played a role in VTHM’s decision to terminate him.
In sum, Johnson has not created a material fact question regarding whether
VTHM had a retaliatory motive when it decided to terminate him as part of its
reduction in force. Summary judgment is appropriate.12
Johnson cites only one case in the section of his Memorandum [92] involving his
retaliatory discharge claims against VTHM for the proposition that “[a] plaintiff can prove
a continuing violation either by producing evidence of a series of discriminatory acts or by
demonstrating that the defendant has a policy of discriminating.” Pl.’s Mem. [92] at 14
(citing Waltman v. Int’l Paper Co., 875 F.2d 468 (5th Cir. 1989)). Defendants have not
argued that Johnson’s claims are time-barred, so it is unclear why he raises the continuingviolation doctrine.
12
29
III. CONCLUSION
Because Defendants have shown that there is no genuine dispute of material
fact for resolution at trial and that they are entitled to judgment as a matter of law
on Johnson’s claims, summary judgment should be granted, and this case will be
dismissed. To the extent the Court has not specifically addressed any of the parties’
arguments, it has considered them and determined that they would not alter the
result.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Motion [88]
for Summary Judgment filed by Defendants VT Halter Marine, Inc., David Newell,
Russell Woodward, Cecil Maxwell, and Zachary Anderson is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff Antonio L.
Johnson’s claims against Defendants VT Halter Marine, Inc., David Newell, Russell
Woodward, Cecil Maxwell, and Zachary Anderson are DISMISSED WITH
PREJUDICE. A separate judgment will be entered in accordance with Federal
Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED this the 24th day of September, 2019.
s/
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE
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