Thompson v. Cajun Deep Foundation, LLC
Filing
30
Memorandum Opinion and Order granting 23 MOTION for Summary Judgment. A separate judgment will be entered. Signed by District Judge Tom S. Lee on 10/3/13 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
NICHOLAS THOMPSON
PLAINTIFF
VS.
CIVIL ACTION NO. 3:12CV587TSL-JMR
CAJUN DEEP FOUNDATIONS, LLC
DEFENDANT
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendant
Cajun Deep Foundations, LLC (Cajun), for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure.
Plaintiff
Nicholas Thompson has responded to the motion and the court,
having considered the memoranda of authorities, together with all
proper
attachments,1 submitted by the parties, concludes the
motion is well taken and should be granted.
Plaintiff Nicholas Thompson, who is African American, claims
in this case that he was terminated from his employment with Cajun
on account of his race in violation of Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e et seq.2
Cajun seeks summary
judgment on the basis that plaintiff cannot establish a prima
facie case of discrimination, and that even if he could prove a
1
Defendant has asserted a meritorious objection to
exhibits submitted by plaintiff with his response, and those
exhibits have been disregarded by the court in its consideration
of the summary judgment motion.
2
Plaintiff had alleged a claim for retaliation, as well,
but in response to Cajun’s motion, conceded the retaliation claim,
leaving for consideration only his claim for race discrimination.
prima facie case, he has no evidence to rebut defendant’s
articulated reason for his termination.
The record evidence establishes the following undisputed
facts.
Cajun was hired by Bechtel, general contractor, to perform
certain welding work on a project at a refinery in Pascagoula,
Mississippi owned by Chevron.
Plaintiff was hired by Cajun on
July 20, 2011 to perform welding work on the Chevron project, at a
pay rate of $25 per hour.
Prior to the start of welding duties,
all welders, including plaintiff, were required to pass
certification testing on the welding procedure that Cajun had been
instructed to use on the project.
Although Thompson passed the
test in late July and began to perform welding duties for Cajun,
his certification was pulled, or taken away, on August 15, 2011 by
Austin Hillman, a welding inspector for Cajun.
Hillman reported
that he pulled plaintiff’s certification because plaintiff was
insubordinate in that he failed to perform his welding work
properly, failed to follow directions from his superiors as to how
the work was to be performed and displayed a bad attitude when
being shown the proper technique.
Plaintiff denies this.
Although his initial welding certification was pulled,
plaintiff was allowed to retest on August 18, 2011, along with all
Cajun’s welders, after a new welding procedure was implemented.
Of seven welders tested, two, including plaintiff, failed to pass.
Plaintiff contends that while this testing was set up to be
2
conducted by a third party, Tech-Weld, his testing was actually
monitored by Cajun’s Austin Hillman, who stopped him before he had
completed the testing and would not allow him to finish.
As a result of his failure to obtain certification on the new
welding procedure, plaintiff was not allowed to perform the
welding work for which he had been hired.
Plaintiff was not
terminated at that time, though, but was instead assigned
non-welding duties, including preparing materials to be used by
the welders and flagging heavy equipment and vehicles as they
moved around the Chevron facility.
Moreover, while these non-
welding duties typically were compensated at a lower rate,
plaintiff continued to be compensated at the higher welder’s rate
of pay.
However, on August 26, 2011, plaintiff was terminated
from his employment with Cajun, ostensibly for unsatisfactory job
performance.
According to defendant, job superintendent Benji
Ficklin terminated plaintiff’s employment because he found that
(1) plaintiff’s preparation work for the welders (including thirdparty welders who had been contracted by Cajun to perform certain
specialized welding procedures) was not up to par, resulting in
the welders complaining that they were having to re-cut and bevel
their own pipe since the prep work was not being done correctly;
(2) when assigned flagging duties, plaintiff was frequently not in
his designated work area, which caused supervisors to have to look
for him, get someone else to do the flagging or do the flagging
3
themselves; (3) plaintiff displayed behavior which demonstrated
his dissatisfaction with his non-welding role; and (4) plaintiff
had an unexcused absence from work on August 25, 2011.
To establish a claim of discriminatory discharge, plaintiff
must first establish a prima facie case of discrimination.
Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097,
147 L. Ed. 2d 105 (2000).
Defendant may then offer a legitimate,
non-discriminatory reason for the termination, at which time the
plaintiff “‘must then offer sufficient evidence to create a
genuine issue of material fact either (1) that the defendant's
reason is not true, but is instead a pretext for discrimination
(pretext alternative); or (2) that the defendant's reason, while
true, is only one of the reasons for its conduct, and another
motivating factor is the plaintiff's protected characteristic
(mixed-motive[s] alternative).’”
Keelan v. Majesco Software,
Inc., 407 F.3d 332, 341 (5th Cir. 2005) (quoting Rachid v. Jack In
The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).
To prove a prima facie case of discriminatory discharge,
plaintiff must establish that he (1) is a member of a protected
class; (2) was qualified for the position; (3) was subject to an
adverse employment action; and (4) was replaced by someone outside
the protected class, or, in the case of disparate treatment, show
that other similarly situated employees were treated more
favorably.
Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th
4
Cir. 2004) (citing Okoye v. Univ. of Texas Houston Health Sci.
Ctr., 245 F.3d 507, 512 (5th Cir. 2001)).
Defendant does not dispute the first three elements of
plaintiff's prima facie case.
Plaintiff is a member of a
protected class, was qualified for his position (at least with
respect to the non-welding duties), and was subject to an adverse
employment action.
However, defendant challenges the sufficiency
of plaintiff’s proof as to the fourth element, i.e., the
requirement that he present evidence to create a triable issue
with respect to whether he was replaced by someone outside the
protected class, or whether other similarly situated employees
were treated more favorably.
Bryan, 375 F.3d at 360.
In response to defendant’s motion, plaintiff does not contend
he was replaced by someone outside his protected class, or that
any employee outside the protected class engaged in the same
conduct for which was terminated and yet was not terminated.3
Rather, he contends that he has satisfied the fourth element of
3
Plaintiff does argue and undertake to show that white
welders who had performance issues did not have their welding
certifications pulled or prevented from completing their
certification tests. However, there is no evidence that plaintiff
was terminated for any real or perceived deficiencies in his
welding. It is undisputed that he was retained in Cajun’s employ
in a non-welding capacity after he lost his welding certification.
Accordingly, the evidence he has offered regarding white welders
is immaterial. The court notes that defendant has presented what
seem to be meritorious objections to the competence of such
evidence, but the court need not consider defendant’s specific
objections since the evidence is not relevant in any event.
5
his prima facie case by presenting proof that he did not commit
the violations for which he was allegedly terminated.
The Fifth
Circuit has held that “[i]n work-rule violation cases, a Title VII
plaintiff may establish a prima facie case by showing ‘either that
he did not violate the rule or that, if he did, white employees
who engaged in similar acts were not punished similarly.’”
Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir.
1995) (quoting Green v. Armstrong Rubber Co., 612 F.2d 967, 968
(5th Cir. 1980)).
Plaintiff evidently takes the position that
this is a work-rule violation case.
However, with one possible
exception, defendant does not contend that plaintiff was
terminated for violation of any workplace rule or policy.
It is possible that an employee’s unexcused absence wouild
violate a company policy on absenteeism; but neither party has
presented evidence of any absenteeism policy.
If plaintiff’s
alleged unexcused absence on August 25, 2011 was a violation of a
company absenteeism policy, then the court might find that
plaintiff had created an issue of fact as to whether plaintiff had
violated such policy since plaintiff has testified that he had no
unexcused absence.
However, plaintiff was not terminated merely
because of an unexcused absence.
Rather, defendant maintains he
was terminated because of his unsatisfactory job performance,
including his failure to correctly do the preparation work for the
welders and his failure to remain in his designated work area when
6
assigned flagging duties.
In the court’s opinion, these
performance deficiencies would not qualify as work-rule
violations.
But even if they arguably could be so categorized,
plaintiff has failed to present competent evidence to create a
genuine issue for trial on whether he committed these
“violations.”
The court acknowledges that plaintiff has submitted
an affidavit in which he states, “I deny that I ever had problems
with my performance.”
However, this is plainly insufficient to
create a genuine issue for trial on the specific performance
issues cited by defendant as the basis for his termination.
Cf.
Mire v. Texas Plumbing Supply Co., Inc., 286 Fed. Appx. 138,
143-144 (5th Cir. 2008) (holding that employee’s “bare assertions
that she did not perform poorly is not sufficient to raise a fact
issue as to the legitimacy of [employer’s] proffered reasons”);
Ajao v. Bed Bath & Beyond Inc., 265 Fed. Appx. 258, 263 (5th Cir.
2008) ((holding that employee did not create a fact issue as to
whether employer's poor-performance reason was a pretext where
employee produced no evidence of his own good performance and
instead merely offered subjective belief that she performed
adequately, was not dishonest, and was not combative); Machinchick
v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005) (finding that
employee’s testimony by which he merely denied employer's
proffered reason for his termination was not sufficient to raise
fact issue).
Plaintiff has presented no evidence to refute
7
defendant’s assertion that plaintiff’s prep work for the welders
was not “up to par,” and in fact he has not addressed that
specific allegation at all.
He did address in his deposition
testimony defendant’s complaint that he was frequently away from
his designated work area when assigned flagging duties by
explaining that he was available by radio at all times.
Yet being
available to be summoned to one’s designated work area from
another location is not the same as being present in one’s
designated work area.
Based on the foregoing, the court concludes that plaintiff
has failed to create a genuine issue of material fact on the
fourth element of his prima facie case and defendant is therefore
entitled to summary judgment.
The court would note further,
though, that just as plaintiff’s proof is insufficient to create a
genuine issue for trial on his prima facie case, it is also
insufficient to create an issue for trial on pretext.
The Fifth
Circuit has held that “[t]o survive summary judgment, a plaintiff
relying on pretext must ‘produce evidence rebutting all of a
defendant's proffered nondiscriminatory reasons.’”
Mire, 286 Fed.
Appx. at 138 (quoting Machinchick, 398 F.3d at 351 & n.16).
That
is, he must provide evidence demonstrating the falsity of each of
defendant’s reasons.
Id.
This, plaintiff has not done.
Accordingly, it is ordered that defendant’s motion for
summary judgment is granted.
8
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 3rd day of October, 2013.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?