McMichael v. Transocean Offshore Deepwater Drilling, Inc. et al

Filing 70

ORDER granting 56 Motion for Summary Judgment. Signed by District Judge Keith Starrett on 12/10/18. (lm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

ROBERT MCMICHAEL

v.

PLAINTIFF

CIVIL ACTION NO. 2:16-cv-148 KS-MTP

TRANSOCEAN OFFSHORE DEEPWATER
DRILLING, INC., TRANSOCEAN RIGP DCL, LLC
and TRANSOCEAN OFFSHORE USA, INC.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause comes before the Court on Defendants’ Motion for Summary Judgment [56].
Plaintiff has filed his response and memorandum in opposition [59, 60], and Defendants have filed
a reply [63]. Having reviewed the pleadings, the parties’ submissions, the record in this matter,
and the applicable law, and otherwise being fully advised in the premises, the Court concludes that
the motion is well taken and will be granted.
I.

SUMMARY OF THE CASE
Transocean discharged Robert McMichael (“McMichael”) on April 25, 2015. 1 McMichael

was 59 years old at the time of his termination and had been employed with Transocean for just
over fourteen (14) years on deep water rigs, most recently as a toolpusher. In his Second Amended
Complaint McMichael alleges that the Defendants (“Transocean”) discharged him because of his
age in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §
621 et seq. McMichael was terminated and his toolpusher position on the Discoverer Clear Leader

1

In its Memorandum in Support of the Motion, the Defendants contend that only Defendant Transocean RIGP DCL,
LLC employed McMichael and thus, is the only proper defendant in this matter. [57] at 1 n.1. Because such issue is
not before the Court, the Court uses the term “Transocean” to refer to all defendants collectively regardless of what
entity is actually facing potential liability.

was filled by Jody Eckert, an individual who was 49 years old.
Defendants contend that McMichael was one of approximately 7,320 Transocean
employees who have been laid off in the past four years as a result of one of the largest economic
downturns in the history of the oil and gas industry. Transocean brings this summary judgment
motion on the grounds that McMichael can produce no evidence in this case showing that he was
laid off because of his age.
II.

BACKGROUND
Transocean hired McMichael in 2001 as a Driller I and assigned him to an offshore drilling

rig. [56-3]. He was 46 years old at the time he was hired. [56-4] at 13:10-12. McMichael received
numerous promotions and pay raises throughout his employment with Transocean. Id. at 45:1247:2; [56-3]. In February 2009, after working as a driller and toolpusher on a number of rigs,
McMichael went to work as a toolpusher on a drillship called the Discoverer Clear Leader
(“DCL”). [56-4] at 47:3-48:5. Gordon Kennedy was the Rig Manager of the DCL from August 1,
2013 until April 17, 2016. [56-5] at ¶ 3; [56-4] 69:7-13, 69:25-70:3. Gary Mosley was a senior
toolpusher on the DCL and one of McMichael’s supervisors. [56-4] at 26:27-27:1. Robert Blansett
was an offshore installation manager (OIM) on the DCL. [56-4] at 36:25-37:6. Robert Owen was
also an OIM who supervised McMichael when he was a toolpusher on the DCL. [56-4] 64:8-11.
McMichael worked on the DCL for over five years until his layoff in April 2015. [56-4] at 47:613; 48:6-8. He got along well with all of his supervisors and never had any issues. [56-4] at 65:469:6.
Due to an economic downturn in the oil and gas industry, Transocean has reduced its
offshore fleet by 44 rigs over the past four years, which has resulted in 7,320 Transocean

2

employees being laid off between the first quarter of 2014 and July of 2018. [56-2] at ¶¶ 4, 6.
Transocean’s HR department was tasked with managing these large reductions in force. [56-2] at
¶ 4. Transocean devised and utilized a system known as the “high-grading process” to select
employees for inclusion in these reductions in force. Id. This process results in layoffs of lower
graded employees, which is then followed by reorganization of the remaining offshore workforce.
Id. at ¶ 5. The goal of the high grading process is to reduce the overall size of the workforce while
identifying and retaining the best offshore rotational employees. Id. at ¶ 4.
In early 2015, Transocean “cold-stacked” 2 six drilling rigs, which reduced the overall
headcount on those rigs from 989 employees to zero. [56-2] at ¶ 7. Consequently, Transocean
engaged in the high grading process to determine how to reorganize its workforce to ensure that it
retained its top talent. Id. at ¶ 4: [56-1] 8:8-17.
The high grading process has three basic components—(1) performance; (2) ranking; and
(3) potential. [56-1] at 8:8-23; [56-2] at ¶ 9. The performance score is based on the employees’
most recent performance appraisal and is comprised of two components that are averaged together
to arrive at the overall performance score. [56-2] at ¶ 10. The Rig Manager determines both ranking
and potential. [56-2] ¶¶ 11-12. These three ratings are converted into a percentage and averaged
together to determine an employee’s “Total Score.” [56-2] at ¶ 9. The Total Score is used as a data
point to facilitate conversations between the Rig Managers and HR, but it is the Rig Managers who
are ultimately responsible for the lay-off decisions. [56-1] at 14:3-15:10; 21:25-22:13; [56-2] at ¶
21; [56-6] at 15:9-21:15. During these conversations, the Rig Managers and HR discuss the

2

A cold-stacked rig is one that is completely shut down and rendered non-operational. [56-2] ¶ 6.

3

employee ratings, validate the ratings, fill in information missing from the ratings, assess
employees’ overall performance, and make decisions pertaining to the reorganization of
Transocean’s workforce, including who to lay off, who to retain, and who to transfer. See id.
Because layoffs were frequent during the time of McMichael’s layoff, it was not uncommon for
Rig Managers to rank employees and evaluate their potential after the meeting with HR had taken
place. [56-2] at ¶ 14.
On his 2014 Performance Appraisal, completed by Gary Mosley and Robert Blansett,
McMichael received a rating of #3 “Fully Successful.” [58-8]. Based on the outcome of the high
grading process and discussions with HR, Gordon Kennedy, who was 51 years old at the time,
made the decision to lay off McMichael as part of a large reduction in force, which termination
occurred on April 25, 2015. [56-5] at ¶¶ 2, 4, 10-12; [56-4] at 48:6-8; [56-1] 62:11-15, 65:9-11.
Of the twenty-five toolpushers who were ultimately laid off (including McMichael), nine were
working on rigs that were not cold stacked. [56-2] at ¶ 20. In 2015, almost all of the toolpushers
who were laid off worked on rigs that were not cold stacked at the time. Id.
Following McMichael’s layoff, Kennedy then had three weeks to backfill his position with
a higher graded employee. [56-5] at ¶ 12. He requested a list of toolpusher replacements from HR
along with past appraisals and work history and spoke to the previous supervisors and Rig
Managers of the higher graded toolpushers to get their feedback before making the backfill
selection. Id. After reviewing Jody Eckert’s most recent performance appraisal in which he
received a rating of #4 “Superior,” reviewing documentation on Eckert related to the high grading
process, and speaking to personnel with whom he worked, Kennedy selected Jody Eckert, who

4

was 49 years old at the time, to fill the tool pusher position and replace McMichael on the DCL. 3
Id.; [56-2] at ¶ 22; [56-9]. Kennedy had never worked with or met Mr. Eckert when he selected
Eckert for the DCL and was also not aware of Mr. Eckert’s age at the time he was selected. Id.
McMichael also does not know Mr. Eckert and has never worked with him. [56-4] at 28:23-25.
In June 2015, McMichael received an email from Allan Windham, a mechanical supervisor
on the DCL, who attached a list called a “strength report” that showed the birth dates of toolpushers
on the DCL and told McMichael to take note of Eckert’s age; it was then that McMichael learned
for the first time that someone younger than he replaced him. [56-4] p.102-104; [56-7]. McMichael
never complained about age discrimination while employed there. [56-4] 123:7-10. He does not
know who made the decision to lay him off, and he does not know who discriminated against him
because of his age. [56-4] 113:4-11; 123:11-16. McMichael knew Gordon Kennedy personally
and got along well with him, with no professional problems working with Mr. Kennedy. [56-4]
68:17-69:3. In his declaration in opposition to summary judgment, McMichael recalls that Robert
Owen, an OIM on the DCL, told McMichael at least twice in July 2014 that because that
McMichael was over 59½ years old, he had nothing to worry about because he could receive his
pension without the IRS imposing a penalty. [59-2] at ¶ 13. McMichael felt this was a coded
reference to his age. Id.
III.

DISCUSSION
A. Summary Judgment Standard
Summary judgment “should be rendered if the pleadings, the discovery and disclosure

3

Mr. Eckert was subsequently laid off on September 1, 2016 as part of ongoing reductions in force. [56-2] at ¶ 19.

5

materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to a judgment as a matter of law.” Am. Gen. Life Ins. Co. v. Hannah,
No. 1:12-cv-00087, 2014 WL 1413540 at *9 (N.D. Miss. Apr. 11, 2014) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)); Fed. R. Civ. P. 56(c). The moving party bears the initial burden
of showing there is no genuine issue for trial, and it may do so by pointing out “‘the absence of
evidence supporting the nonmoving party’s case.’” Skotak v. Tenneco Resins, Inc., 953 F.2d 909,
913 (5th Cir.), cert. denied, 506 U.S. 832 (1992) (quoting Latimer v. Smithkline & French Labs.,
919 F.2d 301, 301 (5th Cir. 1990)).
If the moving party meets this burden, the nonmoving party who will have the burden of
proof at trial must come forward with summary judgment evidence establishing the existence of a
genuine issue; that evidence must be such that if introduced at trial it would suffice to prevent a
directed verdict against the nonmovant. Celotex, 477 U.S. at 321. A dispute is “genuine” if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Sierra Club, Inc. v. Sandy Creek Energy
Assocs., L.P., 527 F.3d 134, 138 (5th Cir. 2010) (“An issue is material if its resolution could affect
the outcome of the action.”). “Summary judgment is mandatory against a party who fails to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Fife v. Vicksburg Healthcare, LLC, 945 F.
Supp. 2d 721, 729 (S.D. Miss. 2013) (internal quotations omitted) (quoting Brown v. Offshore
Specialty Fabricators, Inc., 663 F.3d 759, 766 (5th Cir. 2011)).

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B. Analysis of Evidence Under ADEA Analytical Framework
The ADEA makes it unlawful for an employer “to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age . . . .” 29 U.S.C. § 623(a). When there
is no direct evidence of age discrimination, as is the case here, it is well established that the plaintiff
must follow the three-step burden-shifting framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). 4 See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
(2000) (assuming without deciding, that the McDonnell Douglas burden-shifting framework
applies to ADEA claims); Novak v. Chicago Title of Tex., L.L.C., No. 18-50040, 2018 WL
3752092 at * 1-2 (5th Cir. Aug. 6, 2018); Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir.
2010); E.E.O.C. v. La. Office of Cmty. Svcs, 47 F.3d 1438, 1443 (5th Cir. 1995); Fife, 945 F. Supp.
at 732.
1. Prima facie case
Defendants set forth the elements of a typical prima facie case, wherein a plaintiff raises
an inference of age discrimination by establishing “(1) he is within the protected class—i.e., at
least 40 years old; (2) that he was qualified for the position; (3) that he suffered an adverse
employment decision; and (4) that he was replaced by someone younger or treated less favorably
than a similarly situated younger employee.” [57] at p. 11 (citing Fife, 945 F. Supp. 2d at 733).
However, because McMichael was terminated as part of a reduction-in-force (“RIF”), the Court

4

Plaintiff has not argued that he has presented any direct evidence of discrimination and has not taken issue with the
burden-shifting framework for a circumstantial case.

7

would apply the Fifth Circuit’s slightly different elements of a prima facie case. 5 See Nichols v.
Loral Vought Systems Corp., 81 F.3d 38, 41 (5th Cir. 1996). This modified showing in RIF cases
came about due to the inability in many situations for a plaintiff to show that he/she was replaced
by someone substantially younger. See Amburgey v. Corhart Refractories Corp., Inc., 936 F.2d
805, 812 (5th Cir. 1991). Notwithstanding, for purposes of the motion, the Defendants do not
dispute that McMichael can establish that he was replaced by someone younger, and so they
concede, and the Court will assume without deciding, that McMichael meets this initial burden.
[57] p. 11.
2. Defendant’s Legitimate Non-Discriminatory Reason
If the plaintiff successfully makes out a prima facie case, the burden then shifts to the
employer “to articulate a legitimate non-discriminatory reason for the termination.” Goudeau v.
Nat’l Oilwell Varco, L.P. 793 F.3d 470, 474 (5th Cir. 2015). It is a burden of production, not
persuasion, and it involves no credibility assessments. See Reeves, 530 U.S. at 142. The defendant
can meet this burden by presenting evidence that “if believed by the trier of fact, would support a
finding that unlawful discrimination was not the cause of the employment action.” Id. (quoting St.
Mary’s, 509 U.S. at 506-508)).
Transocean maintains that McMichael was terminated as a reduction in force due to the
economic downturn in the oil and gas industry and the reorganization of its workforce utilizing the
high grading process. Such reasons “are presumptively legitimate and nondiscriminatory because

5

A party in an RIF case must show “(1) that he is within the protected age group; (2) that he has been adversely
affected by the employer’s decision; (3) that he was qualified to assume another position at the time of the discharge;
and (4) ‘evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer
intended to discriminate in reaching the decision at issue.” Nichols, 81F.3d at 41 (quoting Amburgey v. Corhart
Refreactories Corp., Inc., 936 F.2d 805, 812 (5th Cir. 1991)).

8

a reduction in force ‘is itself a legitimate, nondiscriminatory reason for discharge.’” Tyler v. La-ZBoy Corp., 506 Fed. Appx. 265, 270 (5th Cir. 2013) (quoting E.E.O.C. v. Tex. Instrs., Inc., 100
F.3d 1173, 1181 (5th Cir. 1996)). Because McMichael’s position was not singularly eliminated
and because the elimination was allegedly due to restructuring during the economic downturn
using the high grading process, Transocean has satisfied its burden of articulating an adequate
legitimate, nondiscriminatory reason for the challenged employment action. Thus, the question
becomes whether McMichael sufficiently carries his burden to show pretext.
3. Pretext
Once a defendant’s burden of production is met, the burden shifts back to the plaintiff to
prove by a preponderance of the evidence that the proffered reason is not true, but instead is a
pretext for intentional discrimination. St. Mary Honor Ctr. v. Hicks, 509 U.S. 502, 507-508 (1993);
Goudeau, 793 F.3d at 474 (quoting Squyres v. Heico Cos., L.L.C.,, 782 F.3d 224, 231 (5th Cir.
2015)). “A plaintiff may show pretext . . . by showing that the employer’s proffered explanation is
false or unworthy of credence.” Novak, 2018 WL 3752092 at *2 (internal quotations omitted)
(quoting Jackson v. Cal-W. Packaging, Corp., 602 F.3d 374, 378-79 (5th Cir. 2010)).
Under the ADEA, the burden of persuasion remains always with the plaintiff, and
McMichael must demonstrate by a preponderance of the evidence that he would not have been
terminated but for the alleged discrimination. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176
(2009). Thus, in an age discrimination claim, a plaintiff cannot prevail by showing that age was
merely a factor—age must be “the ‘reason’ that the employer decided to act.” Fife, 945 F. Supp.
2d at 732-733 (quoting Gross, 557 U.S. at 176) (emphasis added).

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If the plaintiff shows that the employer’s justification is false, such a showing, coupled
with the prima facie case, “may permit the trier of fact to conclude that the employer discriminated
against the plaintiff without additional evidence.” Reeves, 530 U.S. at 148. However, the Fifth
Circuit cautions that
such a showing will not always be enough to prevent summary judgment,
because there will be cases where a plaintiff has both established a prima
facie case and set forth sufficient evidence to reject the defendant’s
explanation, yet “no rational factfinder could conclude that the action was
discriminatory.” Whether summary judgment is appropriate depends on
numerous factors, including “the strength of the plaintiff’s prima facie case,
the probative value of the proof that the employer’s explanation is false, and
any other evidence that supports the employer’s case and that properly may
be considered.”
Price, 283 F.3d 715, 720 (5th Cir. 2002) (quoting Reeves, 530 U.S. at 18-149 (2000)). While a
“plaintiff can survive summary judgment by producing evidence that creates a jury issue as to the
employer’s discriminatory animus or the falsity of the employer’s legitimate nondiscrimatory
explanation,” the ultimate issue is “whether a reasonable jury could find that [the plaintiff’s]
evidence supports an inference of age discrimination.” Sandstad v. CB Richard Ellis, Inc., 309
F.3d 893, 897 n. 3 (5th Cir. 2002).
a. McMichael’s evidence of pretext
In an effort to establish age discrimination, McMichael relies on the following five facts,
which the Court will address in turn: (1) that he was replaced by younger, less qualified employee;
(2) testimony that McMichael spent too much time in the Senior Toolpusher’s office is
uncorroborated; (3) that McMichael’s composite Total Score was 71% and remained at 71% and
Eckert’s Total Score was 59%; (4) McMichael was ranked with four toolpushers when there are
actually six toolpushers; and (5) that there were coded references to McMichael’s age by Robert

10

Owen, an OIM on the DCL, in July 2014. 6 [60] p. 2.
i. Replaced by younger, less qualified individual
The fact that McMichael was replaced by someone younger is typically only a portion of
the prima facie case that assists in raising the initial inference of age discrimination. As for Eckert
being “less qualified,” McMichael relies on Transocean’s high grading process in which he asserts
that because McMichael’s Total Score was 71% and Eckert’s was 59%, he was replaced by
someone less qualified. [60] p. 7. This issue will be addressed in conjunction with the other facts
that McMichael relies on to argue that the high grading process was riddled with inconsistencies
and thus, cannot be believed.
ii. Issues with the high grading process
As to facts (2), (3), and (4) above, McMichael argues that these facts show that the
Defendants’ nondiscriminatory reason is false or unworthy of credence. He asserts that the high
grading process as applied to McMichael is riddled with inconsistencies, which render it
“unworthy of credence” and allows for the inference that “the employer is dissembling to cover
up a discriminatory purpose, i.e., age discrimination.” [60] p. 5-6. The Court disagrees because
these purported issues of fact relating to the application of the high grading process to McMichael
do nothing to undermine or raise an issue of fact as to the overarching reason for the termination,
which is the reduction in force and restructuring of the work force, which was necessary to deal
with rigs that were cold stacked.

6

McMichael’s declaration states that Owen’s comments were made in July 2014. [59-2] at ¶ 13. His memorandum
of law states that the comments were made in July 2017. [60] p.2. The Court relies on the date in the sworn declaration.

11

The main point McMichael argues is that there is no documentation showing that
McMichael scored anything but a 71% during the high grading process; thus, because 71% truly
is McMichael’s Total Score, Transocean’s replacing him with someone who scored 59% and was
younger reveals age discrimination. However, the testimony from Jennifer Lopez and Gordon
Kennedy was consistent that 71% was not McMichael’s true Total Score, and as Ms. Lopez
explained and showed by calculation, 71% is only the performance portion. [56-6] 20:19-21:15;
[56-1] 11:12-13:19; [56-2] ¶¶ 13, 14. Both Lopez and Kennedy testified, and it is undisputed, that
during the process there is a meeting between the Rig Managers and HR where the three factors
of the high grading process are discussed. [56-6] 21:1-17; [56-2] ¶¶ 14-15. Lopez explains in her
declaration that based on Kennedy’s input as to ranking and potential McMichael’s true Total
Score was 52%. [56-2].
In his deposition and declaration, Kennedy explained the reasons for ranking McMichael
fourth out of four toolpushers and giving him a potential score of zero. [56-5] ¶¶ 6-9. McMichael
now takes issue with Kennedy’s explanation as to how and why McMichael was ranked as he was.
McMichael argues that there were not four toolpushers but six and that Kennedy’s opinion that
McMichael spent too much time in the office is uncorroborated, as it was never mentioned to
McMichael. [59-2] ¶¶ 4, 10; [60] p. 2. However, these issues of fact do not raise issues of fact as
to pretext of discrimination. These are merely issues, which if resolved in McMichael’s favor,
show only that perhaps Transocean made some mistake in their scoring, and such is not sufficient
to overcome summary judgment. As the Fifth Circuit has instructed:
The ADEA was not intended to be a vehicle for judicial second-guessing of
employment decisions nor was it intended to transform the courts into personnel
managers. The ADEA cannot protect older employees from erroneous or even

12

arbitrary personnel decisions, but only from decision which are unlawfully
motivated.
Moss v. BMC Software, Inc., 610 F.3d 917, 926 (5th Cir. 2010) (quoting Bienkowski v. Am.
Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir. 1988).
In other words, the issues of fact McMichael raises would not provide a basis for a jury to
disbelieve the proffered reason for the discharge (reduction in force) but only whether the high
grading process was applied correctly. “Motive is the issue,” and a dispute in evidence relating to
how McMichael’s Total Score was computed “does not provide a sufficient basis for a reasonable
factfinder to infer that [the] proffered justification is unworthy of credence.” Mayberry v. Vought
Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995). “The question is not whether the employer made
an erroneous decision; it is whether the decision was made with discriminatory motive.” Id. “If
age does not motivate the employer's decision, then a ‘discharge may well be unfair or even
unlawful yet not be evidence of age bias under the ADEA.”’ Rhodes v. Guiberson Oil Tools, 75
F.3d 989, 994 (5th Cir. 1996) (quoting Moore, 990 F.2d at 819); Cf. Wilson v. Exxon Mobil Corp.,
575 Fed. Appx. 309 (5th Cir. 2014). 7
7

Although Wilson was a race discrimination case, it utilizes the McDonnell-Douglas burden shifting analysis and
the issue of pretext; thus, it is, at the least, persuasive. That case involved a gas spill that required costly remediation.
Id. at 313. Two employees, one Caucasian and one African American were terminated for failing to follow procedures
in shutting down the refinery. Id. at 311-312. In an effort to rebut the employer’s nondiscriminatory reason for the
termination, the plaintiff argued that the company did not perform a thorough or fair investigation because if it had, it
would have to have concluded that the plaintiff played no role in the incident. Id. at 313. The court found that at its
core, the lawsuit was based on the plaintiff’s “disagreement with Exxon’s conclusion that he played a role in the
gasoline spill that occurred on his watch . . . .” Id. The court went on to explain that despite the plaintiff’s disagreement
with the outcome of the investigation, “the true question before this court is not whether Exxon performed a stellar
investigation or whether its investigative findings were correct. . . . Our inquiry is focused on whether Wilson
presented substantial evidence to demonstrate that Exxon’s proffered reasons were pretext for racial discrimination.”
Wilson, 575 Fed. Appx. at 313-314. Because Exxon terminated both employees, one Caucasian and one African
American, and because the record was devoid of any persuasive evidence that Exxon used the incident as pretext to
terminate Wilson based on his race, the court affirmed summary judgment.7 Id. at 314.
Here, just as Wilson complained that if the investigation had been done properly, the conclusion would have been
different, McMichael essentially argues that if his ranking and potential would have been properly calculated, his

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iii. Comments made by Robert Owen
Finally, McMichael relies on comments made by Robert Owen, an OIM, as further
evidence that McMichael was discriminated against because of his age. McMichael states that
Owen told him, “because [McMichael] was over 59½ years of age, [he] had nothing to worry
about. [McMichael] could receive [his] pension without receiving a financial penalty from the
IRS.” [59-2] ¶ 13. When used as direct evidence, the Fifth Circuit applies a four-part test to
determine whether the comments are sufficient to overcome summary judgment. See Reed v.
Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012). Under this test, the remarks must be “(1)
age related; (2) proximate in time to the termination; (3) made by an individual with authority over
the employment decision at issue; and (4) related to the employment decision at issue.” See id.
(citing Brown v. CSC Logic, Inc, 82 F.3d 651, 644 (5th Cir. 1996)). If offered as circumstantial
evidence, the court applies a more flexible two-part test. See id. (citing Russell v. McKinney Hosp.
Venture, 235 F.3d 219, 226 (5th Cir. 2000)). In that instance, the remark must (1) demonstrate
discriminatory animus and (2) be made by a person primarily responsible for the employment or
by a person with influence or leverage over the formal decision maker. See id.
Whether McMichael intends to use the comments as direct evidence or circumstantial
evidence, either purpose fails. In both cases, the remark must be made by the person either with
authority over McMichael’s termination or by a person with influence or leverage over the formal

score would have been higher. As in Wilson, the question before this Court is not whether Transocean ranked him
among the correct amount of toolpushers or whether he spent too much time in the office, the Court must focus on
whether Transocean’s proffered reasons were pretext for age discrimination. Just as the court found in Wilson, this
Court finds there is simply no persuasive evidence that Transocean used its reduction in force due to an economic
downturn as a pretext to terminate McMichael because of his age.

14

decision maker. It is undisputed that Gordon Kennedy alone made the decision to terminate
McMichael. Although as an OIM on the DCL, Robert Owen did supervise McMichael when he
was a toolpusher, there is no evidence that Owen played any role in the termination decision or
that he ever had any leverage or influence over Gordon Kennedy in any way. As for the remarks
themselves, they are admittedly “coded” and are so vague that they are simply not probative of
discrimination. Accordingly, the comments made by Owen are inconsequential and insufficient to
overcome summary judgment because they are merely “stray remarks.” See Curry v. Hollywood
Casino Corp., No. 2:11-cv-195-SA-SAA, 2013 WL 1291762, at *4 (N.D. Miss. Mar. 28, 2013).
b. McMichael’s inability to overcome summary judgment
Even assuming that McMichael’s issues of fact with regard to the high grading process
were sufficient evidence to reject Transocean’s explanation for the termination, the Court still
finds, as the Supreme Court in Reeves found permissive, “no rational factfinder could find that the
action was discriminatory.” 8 530 U.S. at 148. The Supreme Court explained in Reeves that an
employer would be entitled to judgment as a matter of law if the plaintiff created only a weak issue
of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted
independent evidence that no discrimination occurred. See id. The Court finds that to be the case
here. McMichael creates only a weak issue of fact in that he addresses only discrepancies in
Kennedy’s application of the high grading process to McMichael but provides no evidence
undermining the economic down turn and reduction of force or the fact that Transocean formulated

8

Bear in mind, the Supreme Court was deciding whether there was adequate evidence to sustain a jury’s finding of
liability when no additional evidence of discrimination had been presented beyond the prima facie case and the rebuttal
of the employer’s nondiscriminatory reason. Here, the Court must decide whether there is even an issue to present to
a jury.

15

and utilized an objective high grading process to determine lay-offs and workforce reorganization.
There is also uncontroverted evidence that evinces a lack of any intentional discrimination.
For example, McMichael was only one of twenty-five toolpushers who were laid off over a twoyear period. Of the twenty-five, seven were under the age of forty. [56-7]. McMichael got along
with his supervisors, including Gordon Kennedy. McMichael was performing adequately, and he
never complained of any age-related issues during his employment. Eckert was chosen to replace
McMichael as a toolpusher on the DCL only after the termination decision was made. Also, it is
undisputed that Kennedy was unaware of anyone’s age when making these employment decisions.
Further, at the time Kennedy made the decision to terminate McMichael, Kennedy was 51 years
old. Kennedy’s “membership in the same protected class as [McMichael] bolsters the inference
that age discrimination was not the reason for his termination.” Kelly v. Costco Wholesale Corp.,
632 Fed. Appx. 779, 783 (5th Cir. 2015) (citing Brown v. CSC Logic, Inc., supra).
As the Fifth Circuit noted in Price, “Reeves does not relieve a plaintiff of his burden to
present evidence that will permit a rational factfinder to infer intentional discrimination.” 283 F.3d
721 n. 4. There is simply no relevant evidence relating to age, other than the strength report, which
merely shows dates of birth and that Eckert was younger than McMichael. The Court finds there
is simply not enough evidence in this case for a jury to reasonably infer that McMichael would not
have been terminated “but for” his age. See Vadie v. Miss. State Univ., 218 F.3d 365, 374 n. 23
(5th Cir. 2000). 9

9
The court in Vadie stated there must be a reasonable inference that age was a “determinative” factor in the
employment action, but nine years after the Vadie decision, the Supreme Court clarified in Gross, supra, that a plaintiff
must establish that he would not have been terminated “but for” his age.

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IV.

CONCLUSION
Based on the foregoing, the Court finds that McMichael has failed to present sufficient

evidence raise a genuine issue of fact as to pretext in this case. Therefore, judgment as a matter of
law is warranted in favor of the Defendants. Accordingly, it is hereby ORDERED that Defendants’
Motion for Summary Judgment is granted and a final judgment in favor of Defendants shall be
entered separately on all claims by Plaintiffs. In light of this ruling, all other pending motions shall
be denied as moot.
SO ORDERED AND ADJUDGED this 10th day of December 2018.
/s/
Keith Starrett __________________
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

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