Reyna v. Epiroc Drilling Solutions LLC
Filing
82
MEMORANDUM OPINION AND ORDER: The Court GRANTS IN PART and DENIES IN PART the 43 motion for summary judgment, GRANTS IN PART and DENIES IN PART the 70 motion to strike, DENIES the 46 motion to exclude, and FINDS AS MOOT the 80 motion to stay. (Ordered by Judge Brantley Starr on 1/28/2025) (agc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
EDGAR REYNA,
Plaintiff,
v.
EPIROC DRILLING SOLUTIONS,
LLC,
Defendant.
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Civil Action No. 3:23-CV-1005-X
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant Epiroc Drilling Solutions, LLC’s (Epiroc)
motion for summary judgment (Doc. 43), Epiroc’s motion to strike (Doc. 70), Epiroc’s
motion to exclude the testimony of Julia Bickerstaff (Doc. 46), and Epiroc’s motion to
stay pending a ruling on this motion (Doc. 80). Having considered the parties’ briefs
and the evidence presented, the Court GRANTS IN PART and DENIES IN PART
the motion for summary judgment, GRANTS IN PART and DENIES IN PART the
motion to strike, DENIES the motion to exclude, and FINDS AS MOOT the motion
to stay. At the end of the day, here is what is left for trial: Reyna’s loss-of-mentorship
discrimination claim, his retaliation claim, and his failure to accommodate claim.
I. Factual Background
This is an employment discrimination case. Edgar Reyna was born in Mexico
and is Hispanic. Since 2017, Reyna has worked as an assembler at Epiroc. Today,
he is still employed at Epiroc. His supervisor was a man named Jackie Gudgel, until
1
Gudgel retired. Since 2021, Reyna has filed nine discrimination charges with the
Equal Employment Opportunity Commission (EEOC) largely resulting from Gudgel’s
purported conduct.
The first complaint arose while Reyna tried to get tickets to the company picnic
in 2018. Reyna wanted to bring his extended family to the company picnic. What
happened is a bit unclear: Reyna alleges that two coworkers said they did not want
to go to the picnic if Reyna’s “tios and tias” were going to be there and Gudgel laughed.
But the only evidence of the comment comes when in Reyna’s deposition the
questioner asked about Reyna’s “[tios] and your uncles and aunts.” 1
Whatever
happened that day, it apparently set off a firestorm of complaints and allegations of
discrimination and retaliation. Whether hero or villain, tickets to the company picnic
are Reyna’s origin story.
Eventually, Reyna sought a promotion to become a Leadman. Three people
interviewed Reyna: Gudgel in one round and Peter Chung and Thang Nguyen in the
next. 2 Apparently both Chung and Nguyen recommended Reyna for the position, but
ultimately, Epiroc did not grant Reyna the promotion. Epiroc says it did not hire
Reyna because he was less qualified than the person it did select: Chris Hoang.
According to Reyna, Epiroc seems like a less-than-stellar place to work. For
one, Reyna alleges that racial slurs are commonplace. 3 He alleges he was surveilled,
1 Doc. 45 at App. 84.
2 Doc. 45 at App. 35.
3 Doc. 66 at 30–31.
2
recorded, mocked, and threatened with termination. 4 And Reyna suffered an injury
on the job in January of 2022. 5 He severely crushed his finger in an accident with a
hammer. 6 As a result Reyna brought several disability-based claims. He alleges that
Epiroc discriminated against him and failed to accommodate his condition. He claims
that he continued working as an assembler for more than three months until he was
reassigned to cleaning duty and “forced” onto unpaid medical leave twice. 7 As for
Reyna’s failure to accommodate claim, he alleges that Epiroc did not fashion a
reasonable accommodation for him.
Reyna also alleges he experienced multiple other adverse employment actions
while at Epiroc. He was apparently denied overtime opportunities, denied electrical
training, removed from mentoring new employees, and was forced to clean for his
“light duty” rather than perform desk work. Reyna also has a retaliation claim.
Reyna submitted numerous complaints—averaging about one every two months—
and out of frustration, Gudgel admitted to asking if Human Resources had considered
placing Reyna on unpaid leave. Based on these facts, Reyna brings claims under Title
VII, the Texas Commission on Human Rights Act (TCHRA), 42 U.S.C. § 1981, and
the Americans with Disabilities Act (ADA).
The procedural history, while less circuitous than the underlying facts,
warrants some recollection. Epiroc filed a motion for summary judgment, a motion
4 Doc. 45 at App. 30–32.
5 Doc. 45 at App. 36.
6 Doc. 45 at App. 11, 112.
7 Doc. 66 at 49.
3
to exclude the testimony and report of Reyna’s treating psychiatrist Julia Bickerstaff,
a motion to stay, and a motion to strike portions of Reyna’s briefing. Now, all
outstanding motions are ripe.
II. Legal Standards
Although there are three motions before the Court, the motions to strike and
to exclude contain standards within their analysis sections. Therefore, the Court only
lays out the employment discrimination and retaliation summary judgment
standards here.
District courts can grant summary judgment only 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.” 8 A dispute “is genuine if the evidence is sufficient for
a reasonable jury to return a verdict for the nonmoving party.” 9
A plaintiff can show his discrimination or retaliation claims through either
direct or circumstantial evidence. “Direct evidence is evidence which, if believed,
proves the fact without inference or presumption.” 10 While “a plaintiff can rely on
direct evidence, . . . it is rare in discrimination cases.” 11 “That is because it will be the
rare case where statements or documents will show on their face that an improper
8 Fed. R. Civ. P. 56(a).
9 Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir. 2000) (cleaned up).
10 Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005).
11 Rutherford v. Harris County, 197 F.3d 173, 180 n.4 (5th Cir. 1999) (cleaned up).
4
criterion served as a basis—not necessarily the sole basis, but a basis—for the
adverse employment action.” 12
If the plaintiff does not rely on direct evidence, then the plaintiff’s claims must
undergo the Supreme Court’s McDonnell Douglas burden-shifting framework. 13
Under McDonnell Douglas, the plaintiff must make a prima facie showing of
discrimination. 14 Prima facie cases differ depending upon the kind of claim asserted.
For a Title VII disparate treatment claim, a plaintiff’s prima facia case must
show that he (1) “is a member of a protected class,” (2) “was qualified for [his]
position,” (3) “suffered an adverse employment action,” and (4) “others similarly
situated were more favorably treated.” 15
For a Title VII retaliation claim, a plaintiff’s prima facia case must show that
(1) he “engaged in protected activity,” (2) he “suffered an adverse employment action,”
and (3) “a causal link exists between the protected activity and the adverse
employment action.” 16
For a Title VII failure to promote claim, the plaintiff’s prima facia case must
show that “(1) he was not promoted, (2) he was qualified for the position he sought,
12 Wilkinson v. Pinnacle Lodging, L.L.C., No. 22-30556, 2023 WL 6518142, at *3 (5th Cir. Oct.
5, 2023) (cleaned up). In the retaliation context, the direct evidence must establish that the “protected
activity was a but-for cause of the alleged adverse action by the employer.” Univ. of Texas Sw. Med.
Ctr. v. Nassar, 570 U.S. 338, 362 (2013).
13 Thomas v. Johnson, 788 F.3d 177, 179 (5th Cir. 2015); Body by Cook, Inc. v. State Farm Mut.
Auto. Ins., 869 F.3d 381, 386 (5th Cir. 2017) (“The analysis of discrimination claims under Section
1981 is identical to the analysis of Title VII claims.”).
14 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
15 Rutherford v. Harris County, 197 F.3d 173, 184 (5th Cir. 1999).
16 Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433 (5th Cir. 2021).
5
(3) he fell within a protected class at the time of the failure to promote, and (4) the
defendant either gave the promotion to someone outside of that protected class or
otherwise failed to promote the plaintiff because of his race.” 17
Under the Americans with Disabilities Act, the plaintiff’s prima facia case
must show that “(1) he has a disability or was regarded as disabled; (2) he was
qualified for the job; and (3) he was subject to an adverse employment decision
because of his disability.” 18
If the plaintiff successfully raises a prima facie discrimination case, that raises
a presumption of discrimination, which the defendant may rebut by “articulat[ing]
some legitimate, nondiscriminatory reason” for the employer’s actions. 19 If the
defendant produces evidence that the perceived discriminatory treatment was
justified by a “legitimate, nondiscriminatory reason,” the burden then “shifts back to
the plaintiff, who must show the articulated reason is pretextual.” 20
Lastly, for the plaintiff to succeed on a hostile work environment claim, he
must show five elements: “(1) the victim belongs to a protected group; (2) the victim
17 Autry v. Fort Bend Indep. Sch. Dist., 704 F.3d 344, 346–47 (5th Cir. 2013).
18 Nall v. BNSF Ry. Co., 917 F.3d 335, 341 (5th Cir. 2019). Notably, as an action laying in tort,
section 1981 claims also have a strict but-for causation requirement. By contrast, traditional Title VII
lawsuits only require a showing that discriminatory factors played some role in the decision. Compare
Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 589 U.S. 327, 341 (2020) (“To prevail, a
[Section 1981] plaintiff must initially plead and ultimately prove that, but for race, it would not have
suffered the loss of a legally protected right.”) with id. at 337 (“In the Civil Rights Act of 1991, Congress
provided that a Title VII plaintiff who shows that discrimination was even a motivating factor in the
defendant’s challenged employment decision is entitled to declaratory and injunctive relief. A
defendant may still invoke lack of but-for causation as an affirmative defense, but only to stave off
damages and reinstatement, not liability in general.” (cleaned up)).
19 Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 408 (5th Cir. 2016) (cleaned up).
20 Thomas, 788 F.3d at 179.
6
was subjected to unwelcome harassment; (3) the harassment was based on a
protected characteristic; (4) the harassment affected a term, condition, or privilege of
employment; and (5) the victim’s employer knew or should have known of the
harassment and failed to take prompt remedial action.” 21
III. Motion to Strike
Epiroc filed a motion to strike certain portions of Reyna’s amended appendix.
Epiroc asks that the Court strike the entirety of Doc. 68, which contains 267 pages of
appendix material categorized as 33 additional exhibits.
The Court imposed a
deadline but Reyna blew it by six days.
Federal Rule of Civil Procedure 6(b)(1) allows “district courts, for good cause,
to extend deadlines with or without motion if the court acts before the original time
or its extension expires, or on motion made after time has expired if there was
excusable neglect.” 22 To determine whether the neglect is excusable, courts consider
four factors: (1) “the danger of prejudice” to the opposing party, (2) “the length of the
delay and its potential impact on judicial proceedings,” (3) “the reason for the delay,
including whether it was within the reasonable control of the movant,” and
(4) “whether the movant acted in good faith.” 23 The Court finds little danger of
prejudice to Epiroc, as it had eight days between Reyna’s supplemental filing and its
reply and Epiroc could have sought an extension to account for the supplemental
filing but did not. The length of the delay was six days. Not great. The proffered
21 E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393, 399 (5th Cir. 2007).
22 Kitchen v. BASF, 952 F.3d 247, 254 (5th Cir. 2020) (citing Fed. R. Civ. P. 6(b)(1)).
23 Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993).
7
reason for the delay is that counsel did not know the appendix had been broken up
into two chunks and thought she filed all of them on time. 24 The same day she learned
of the mistake, she corrected it 25—indicating good faith.
The Court does not welcome blown deadlines and a tsk-tsk or two is in order,
but, in the end, this neglect is excusable—especially in light of the Fifth Circuit’s
preference to adjudicate cases on the merits, rather than on procedural mishaps.
Mistakes happen and this was a good faith mistake that took some time away from
Epiroc to see the underlying documents, but it could have been resolved between the
parties or with an extension. The Court finds that this is an instance of excusable
neglect, DENIES the motion to strike all of Doc. 68, and sternly reminds the parties
to be aware of their calendars and docket entries going forward—a double-check
never hurts.
Alternatively, Epiroc argues that the Court should strike (1) several previously
stricken exhibits, (2) Reyna’s audio files, (3) Reyna’s declaration, and (4) witness
statements.
As for the previously stricken exhibits, here’s what happened: Reyna filed a
motion and brief that did not comply with the Court’s local rules. 26 The brief was
incomplete and missing citations, and contained several drafting errors, and counsel
had issues attaching exhibits. 27 Reyna then filed amended briefs by his proposed
24 Doc. 75 at 5.
25 Doc. 75 at 5.
26 See Docs. 51–53.
27 Doc. 54 at 2.
8
deadline, but without leave of the Court. 28 Reyna’s counsel stated they needed a few
extra days to correct those issues. 29 The Court, holding Reyna’s counsel to their word
that the brief merely needed editing, gave Reyna an additional week to edit and refile
the brief and appendix but prohibited substantive changes, e.g., new arguments. 30
The Court also struck the amended documents Reyna filed without leave. Epiroc
takes issue with the exhibits Reyna attached to his amended filing that the Court
struck. These procedural quibbles are not the sort of thing the Court will keep
information out for—especially when the information may prove helpful. The fact
that Reyna’s counsel submitted a filing saying counsel had trouble attaching
attachments 31 and included those in the filing, when if wholly diligent, they would
have been there in the first place, is of no concern for the Court. Therefore, the Court
DENIES the motion to strike the previously stricken exhibits.
Epiroc also asks the Court to strike several of Reyna’s audio files. Epiroc is
concerned that it does not know the contents of the flash drive submitted to the Court.
To mitigate this, the Court ORDERS that Reyna provide to Epiroc an exact copy of
the contents of the flash drive submitted to the Court within 3 days of this Order.
Epiroc also takes issue with authentication. The question is not whether those audio
files are admissible right now, but whether they are admissible at trial. 32 Because
28 See Docs. 57–59.
29 Doc. 54 at 2.
30 Doc. 61.
31 Doc. 54 at 2.
32 See Miller v. Michaels Stores, Inc., 98 F.4th 211, 218 (5th Cir. 2024) (“Hearsay is not
competent summary judgment evidence unless its proponent can show that the statement can be
presented in an admissible form at trial.” (cleaned up)).
9
Epiroc provides no reason why they cannot be authenticated at trial, the Court
DENIES the motion to strike the audio files.
Epiroc asks that the Court strike Reyna’s declaration. Rather than striking
the whole document, the Court will look to each statement in context to determine if
it is inapplicably conclusory, vague, or lacking in personal knowledge. As a result,
the Court DENIES the motion to strike the entire declaration.
Finally, Epiroc requests that the Court strike Reyna’s witness statements. The
Court declines to strike these on the grounds that they contain hearsay, are
conclusory, and lack a basis in personal knowledge. Rather, the Court is concerned
that the statements are unsworn, which generally forecloses the Court’s ability to
rely on those statements at the motion for summary judgment stage.
The
longstanding rule in the Fifth Circuit is that “an unsworn affidavit is incompetent to
raise a fact issue precluding summary judgment.” 33
There is a small statutory
exception for this rule when the statement is made under penalty of perjury, verified
as true and correct, provides the date, and contains a signature. 34 None of the witness
statements contain any such indicators to comply with the statute.
Reyna’s counsel did sign a declaration pursuant to 28 U.S.C. § 1746 that the
witness statement exhibit is a “true and correct” copy. 35 But this is insufficient to
transform others’ unsworn statements into material that the Court can rely on at the
summary judgment stage. The question is whether the person making the statement
33 Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988).
34 28 U.S.C. § 1746.
35 Doc. 68 at App. 688.
10
swears to it—not that someone else swears to it. Therefore, the Court cannot rely on
the witness statements at the summary judgment stage, and the Court GRANTS the
motion to strike the witness statements and STRIKES the witness statements
contained at Doc. 68 Exhibit F from the record.
*
*
*
Therefore, the Court GRANTS IN PART and DENIES IN PART the motion
to strike. Additionally, it ORDERS Reyna to provide to Epiroc a copy of the flash
drive materials Reyna sent to the Court.
IV. Motion to Exclude the Testimony and Report of Julia Bickerstaff
Julia Bickerstaff is Edgar Reyna’s treating psychiatrist.
Reyna seeks to
introduce her testimony at trial, but Epiroc argues it should be excluded for several
reasons: (1) Reyna did not timely disclose Bickerstaff, (2) Reyna failed to comply with
Federal Rule of Civil Procedure 26 so Bickerstaff’s testimony should be excluded
pursuant to Rule 37, and (3) her testimony is inadmissible under Rule 702.
Epiroc complains that Bickerstaff cannot testify as an expert witness under
Rule 702 and Daubert.
There’s one problem: she’s not testifying as an expert.
Instead, she’s testifying as a fact witness under Rule 701. While she treated Reyna
as his psychiatrist, it does not appear she will testify as an expert. Instead, she will
testify “about her treatment and assessment of [Reyna’s] mental health.” 36
The principle is clear: “[A] treating physician’s testimony is based on the
physician’s personal knowledge of the examination, diagnosis and treatment of a
36 Doc. 49 at 10.
11
patient.” 37 Bickerstaff can testify as to questions that “implicate [her] expertise.” 38
For instance, she “can be asked about the degree of injury in the future, or about
anything else that was a necessary part of the patient’s treatment.” 39 On the other
hand, she cannot testify “about medical issues not involved in [her] diagnosis and
treatment.” 40
While she will testify as to “her past and future treatment of Plaintiff and her
testimony and the opinions derived therefrom,” 41 so long as this means she will testify
to matters of personal knowledge of her examination, diagnosis, treatment, she is not
considered an expert witness. As a result, the Court need not resolve any Daubert
issues, because Bickerstaff won’t testify as an expert witness. 42
Although decently clear here, “[w]hether to consider treating physicians as fact
witnesses under Rule 26(a)(1) or as expert witnesses under Rule 26(a)(2) has been a
topic of much discussion among courts.” 43 “Yet, ‘where physicians’ testimony was
prepared in anticipation of litigation by the attorney or relies on sources other than
those utilized in treatment, courts have found that the treating physician acts more
37 Young v. United States, 181 F.R.D. 344, 346 (W.D. Tex. 1997).
38 Id.
39 Id.
40 Id. at 346–47.
41 Doc. 46 at 5.
42 Young v. United States, 181 F.R.D. at 347, contains a helpful list of acceptable questions that
the parties may find helpful in preparation for trial.
43 Bowman v. Cheeseman, LLC, No. 3:13-CV-3865-N, 2014 WL 11515575, at *2 (N.D. Tex. Dec.
9, 2014) (Godbey, J.).
12
like an expert.’” 44 Here, it’s quite the opposite. Not only was Bickerstaff not retained
for this lawsuit, but she also relies only on sources exclusively used in treatment.
As for Epiroc’s argument that Bickerstaff should be excluded, or alternatively
that Epiroc be afforded the opportunity to have a rebuttal expert, conduct discovery,
and move for an independent medical examination, the Court is not convinced. Under
Rule 26(a)(1)(A)(i), parties need to initially disclose “the name and, if known, the
address and telephone number of each individual likely to have discoverable
information—along with the subjects of that information—that the disclosing party
may use to support its claims or defenses.” But not everyone is going to have all that
information at the outset of litigation. That’s why we have Rule 26(e) that requires
parties to supplement their initial disclosures when additional information comes to
light. When a party fails to supplement those disclosures, under Rule 37(c), that
party cannot “use that information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is harmless.”
Reyna contends that he timely disclosed Bickerstaff. Even if he didn’t, he still
meets the test for non-disclosed witnesses.
The Court considers four factors in
evaluating whether expert testimony should be excluded: “(1) the importance of the
excluded testimony, (2) the explanation of the party for its failure to comply with the
court’s order, (3) the potential prejudice that would arise from allowing the testimony,
and (4) the availability of a continuance to cure such prejudice.” 45
44 Id. (quoting Rea v. Wisconsin Coach Lines, Inc., No. 12-1252, 2014 WL 4981803, at *2 (E.D.
La. 2014)).
45 E.E.O.C. v. Gen. Dynamics Corp., 999 F.2d 113, 115 (5th Cir. 1993).
13
Here, the testimony is important. It goes directly to damages. 46 Reyna’s
explanation is decent. Reyna explains that he disclosed Bickerstaff after the expert
deadline because he did not seek treatment from her until after the deadline. 47 He
did not receive his PTSD assessment until June of 2024. 48 Then, twelve days later,
and before the close of discovery, Reyna provided the treatment summary to Epiroc. 49
As for prejudice, Epiroc has been generally aware of Bickerstaff since Reyna’s
deposition when he admitted he was seeing a psychiatrist named Julia (although he
could not remember her last name). 50 That deposition was taken on June 13, 2024. 51
Epiroc could have sought more information but chose not to. Any prejudice caused to
Epiroc is from its own lack of diligence in pursuing a lead in a deposition.
Putting these together, Bickerstaff can testify even though she was not
disclosed.
*
*
*
As a result, the Court DENIES the motion to exclude.
V. Motion for Summary Judgment
Reyna asserts five claims against Epiroc: (1) national origin and race
discrimination, (2) retaliation, (3) failure to accommodate disability, (4) disability
46 Doc. 49 at 7.
47 Doc. 49 at 8.
48 Doc. 49 at 8.
49 Doc. 49 at 8.
50 Doc. 49-4 at App. 16.
51 Doc. 45 at App. 1.
14
discrimination, and (5) hostile work environment. The Court takes each claim in
turn.
A. National Origin and Race Discrimination
i. Direct Evidence (Discrimination)
Reyna invokes several pieces of what he categorizes as “direct evidence” in
support of his claims. “A statement or document which shows on its face that an
improper criterion served as a basis—not necessarily the sole basis, but a basis—for
the adverse employment action is direct evidence of discrimination.” 52 “Statements
that do not meet this standard without inference or presumption are considered only
‘stray remarks.’” 53
Reyna provides one statement that could be considered as direct evidence of
discrimination: “The day before Gudgel attacked Reyna for getting extra picnic
tickets, two White co-workers told Gudgel that they were not going to attend the
picnic because Reyna was going to bring all his uncles and aunts and Gudgel laughed
at their racist joke.” 54 Even taking this as true this is entirely disconnected from any
adverse employment action. Reyna provides no information as to which adverse
employment action this could possibly be connected to. This cannot serve as direct
evidence.
52 Price v. Valvoline, L.L.C., 88 F.4th 1062, 1065 (5th Cir. 2023) (cleaned up).
53 Id. (cleaned up).
54 Doc. 66 at 13.
15
ii. Failure to Promote
To start, there is a dispute over a tolling agreement as to Reyna’s failure to
promote claim. Reyna argued that his counsel entered into a tolling agreement with
opposing counsel that extended his time to file his promotion claims until March 10,
2023. 55 Epiroc responds that the tolling agreement only extended Reyna’s time to file
suit, not that it permitted Reyna to bring new claims in his amended complaint, even
if they were approved the by the EEOC. 56 Under Texas law, a tolling agreement is a
contract is interpreted as such. 57
The agreement is nice and simple.
The first paragraph states: “Edgar
Reyna . . . hereby agrees not to file a lawsuit based on any claim of discrimination
encompassed by the EEOC Charge Number 450-2021-05771 before the parties’
agreed mediation on February 24, 2023.” 58 It goes on to read: “Epiroc . . . agrees that
the deadline for Mr. Reyna to bring a civil action shall be tolled until March 10, 2023.
At the expiration of the newly agreed deadline, Mr. Reyna’s right to sue based on
Charge No. 450-2021-05771, will be lost.” 59 Reyna mentioned the failure to promote
in his original petition in state court, which was filed on March 10, 2023. 60 As a result,
the claim is not time-barred.
55 Doc 66 at 10.
56 Doc. 69 at 2.
57 Chapoy v. Union Pac. R.R., No. 22-40791, 2023 WL 6461252, at *3 (5th Cir. Oct. 4, 2023)
(per curiam).
58 Doc. 68 at 695.
59 Doc. 68 at 695.
60 Doc. 1-1 at 15–20.
16
To make a prima facie case of a failure to promote, the plaintiff must show
“(1) he was not promoted, (2) he was qualified for the position he sought, (3) he fell
within a protected class at the time of the failure to promote, and (4) the defendant
either gave the promotion to someone outside of that protected class or otherwise
failed to promote the plaintiff because of his race.” 61
No party disputes that Reyna is Hispanic, that he applied for the Leadman job,
and that Epiroc ultimately filled the position with someone who is not Hispanic. 62
Accordingly, the only element that is in dispute is whether he was qualified for the
position. Reyna relies on a statement by one of the interviewers who said that he
believed “Edgar is a good candidate because he knows the builds from Station 0 to
1.” 63 He represented that he thought one of the other interviewers also recommended
Reyna. 64
The interviewer also represented that the third and final interviewer
believed Reyna to be a “top candidate.” 65
For its part, Epiroc argues that Reyna was not qualified to be a Leadman
because “Reyna was not a certified tester, and did not have the technical knowledge
needed to fill the void left by [the former Leadman].” 66 In addition, Epiroc argues
that Reyna lacked leadership qualities that Epiroc sought in a Leadman, that it was
61 Autry, 704 F.3d at 346–47.
62 Doc. 66 at 16.
63 Doc. 67 at App. 386.
64 Doc. 67 at 392.
65 Doc. 67 at 392.
66 Doc. 44 at 25.
17
difficult to get Reyna to work overtime, and that Reyna had declined trainings. 67
What Epiroc did not argue, however, is that there were objective and necessary
qualifications that Reyna failed to meet. The interviewer’s statements are enough to
create a fact dispute as to whether Reyna was qualified for the position. As a result,
the Court looks to Epiroc’s reasons for not promoting Reyna.
At this second step, Epiroc needs to articulate some legitimate and
nondiscriminatory reason for not promoting Reyna. Essentially, Epiroc argues the
individual it did hire, Chris Huong, was more qualified than Reyna. 68 For support
Epiroc, musters evidence that Huong was already a tester, 69 and “already possessed
all of the technical and leadership skills.” 70 Additionally, Epiroc claims Huong was
open to overtime work and “understood the demands” of the job. 71 The Court finds
the reasoning that another candidate is more qualified is a legitimate, nondiscriminatory reason not to promote an employee. 72 This means the burden of
production shifts to Reyna to explain that Epiroc’s reason is merely pretext.
As to pretext, Reyna argues that two of the interviewers believed Reyna to be
the best candidate. 73 This, Reyna argues, creates a genuine dispute of material fact
67 Doc. 44 at 25–26.
68 Doc. 69 at 5.
69 Doc. 45-7 at App. 389.
70 Doc. 45-9 at App. 546.
71 Doc. 45-4 at App. 296.
72 See Patrick v. Ridge, 394 F.3d 311, 318 (5th Cir. 2004) (“We acknowledge that choosing some
other candidate because he is the best-qualified individual for the job is generally a legitimate,
nondiscriminatory reason for an adverse employment decision.”).
73 Doc. 66 at 16.
18
as to whether Epiroc’s reason for not promoting Reyna is credible. The key deposition
transcript is excerpted here for simplicity:
Q: Did you make a recommendation as to who you wanted to hire?
A: I tell the opinions at the end of all the candidates. Jackie came to me
and [Thang] asking opinions about all the candidates.
Q: And what opinions did you give Jackie?
A: I said probably Edgar is a good candidate.
Q: Why did you think Edgar was a good candidate?
A: I think Edgar is a good candidate because he builds from Station 0 to
1.
Q: And what did the other lead man . . . – who did he recommend, if you
remember?
A: I think he recommends also Edgar. 74
When the employer’s proffered reason is that another candidate is more qualified, the
plaintiff can show pretext either by showing that he is “clearly better qualified” or
that the employer’s explanation is “false or unworthy of credence.” 75
Reyna argues that “[t]he fact that the two Leadmen who interviewed Plaintiff
thought he was the best candidate creates genuine issues of material fact that
Defendant’s asserted reason is not credible.” 76 Hence, Reyna does not argue that he
is “clearly better qualified” than Huong; rather, he argues that Epiroc’s explanation
is not credible. Accordingly, Reyna must show Epiroc’s reason “is not the real reason
for the adverse employment action.” 77 In general, plaintiffs can use the “false or
unworthy of credence” route, showing that the employer’s proffered reason is no good,
74 Doc. 67 at App. 386.
75 Churchill v. Tex. Dep’t of Crim. Just., 539 F. App’x 315, 319 (5th Cir. 2013) (per curiam)
(cleaned up).
76 Doc. 66 at 16.
77 Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).
19
by showing subjective hiring criteria, derogatory comments by decisionmakers, or
other evidence showing that the real reason the plaintiff wasn’t hired was racism. 78
Plaintiffs bringing failure-to-promote claims are not limited to a strict
qualification comparison with the employee who was hired for the position. 79 But
Reyna basically repackaged the evidence of his qualification as if it was evidence of
falsity or incredulity. This repackaging can work in some circumstances when the
proffered reason is based largely on something like experience. For instance, in
Burrell v. Dr Pepper/Seven Up Bottling Group, Burrell alleged that Dr Pepper’s
reason for not promoting him (that Dr Pepper wanted someone with more purchasing
experience) was false because the person who was hired had less purchasing
experience than he did and because Dr Pepper’s explanation kept changing. 80 There,
the court held that there was a genuine issue as to what the basis of Dr Pepper’s
hiring decisions was. 81
Quite differently here, Reyna attempts to bolster his qualifications by way of
the interviewer’s testimony but falls short of creating a dispute as to whether Epiroc
made its hiring decision based on something other than qualification. Since the only
evidence Reyna has is most appropriately characterized as strict qualification
78 See Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 882–83 (5th Cir. 2003).
79 See, e.g., Employment Discrimination Coordinator Analysis of Federal Law § 44:15
(discussing shifting explanations, misstated qualifications, sham consideration, and qualification
inflation in the context of proving pretext).
80 482 F.3d 408, 412–13 (5th Cir. 2007).
Westlaw, being less familiar with Dr Pepper than the
Fifth Circuit, egregiously inserted a period after “Dr” in the case caption. As the Fifth Circuit knows,
there is no such period. See Burrell v. Dr Pepper/Seven Up Bottling Group, No. 06-10267 (5th Cir.
Apr. 3, 2007).
81 Id. at 413.
20
evidence and he has not attempted to show he is clearly more qualified than Huong,
his failure to promote claim fails. If it were otherwise, every “close call” in hiring
would give way to pretext for a Title VII suit, which would unfortunately convert the
federal judiciary into a hiring-decision-appeals board.
Reyna provides another argument that Gudgel may have influenced the
decisionmaker in the decision not to promote Reyna. 82
This argument entirely
speculative. Moreover, this argument also proceeds from an unsupported premise:
that Gudgel had discriminatory animus at all. That premise is not supported in
Reyna’s briefing on the failure to promote claim and cannot serve as a basis to avoid
summary judgment.
Therefore, the Court GRANTS the motion for summary judgment on the
failure to promote claim.
iii. Other Discrimination Claims
Reyna lists other particular adverse actions based on national origin and race
that he claims qualify as such under adverse employment action precedents. Those
are: placement on unpaid leave, denial of overtime opportunities, denial of electrical
training, being assigned to clean for his light duty work rather than desk work, and
being removed from mentoring new employees.
To determine whether discrimination is material to trigger the various
employment discrimination laws, a plaintiff need not show “discrimination with
respect to an ‘ultimate employment decision’” but instead only “that [he] was
82 Doc. 66 at 17.
21
discriminated against, because of a protected characteristic, with respect to . . . the
‘terms, conditions, or privileges of employment’—just as the statute says.” 83 Hamilton
v. Dallas County recognized that Title VII “does not permit liability for de minimis
workplace trifles” but declined to address “the precise level of minimum workplace
harm” necessary to sustain a discrimination claim. 84 Then, in Muldrow v. City of St.
Louis, the Supreme Court held that “[a]lthough an employee must show some
harm .? ??. . to prevail in a Title VII suit, [he] need not show that the injury satisfies a
significance test.” 85 In particular, the plaintiff needs to show that he was left “worse
off” because of the employment action taken. 86 Indeed, even if one’s pay remains the
same and he retains advancement opportunities, if someone is left in a worse position
than when he started, that is a materially adverse employment action. 87 But, of
course, not every minor slight, deviation from social norms, or weird occurrence
counts—as the Supreme Court has instructed, Title VII is not a general civility code 88
and judges should not turn it into one. Allegations that John cut Jane in line for
coffee, that Jane interrupted John at a team meeting, or that John asked Jane to
clean up a coffee spill generally don’t count. But allegations that John relocated
Jane’s spacious office to a utility closet does make her condition of employment worse
83 Hamilton v. Dallas Cnty., 79 F.4th 494, 506 (5th Cir. 2023) (quoting 42 U.S.C. §2000e-
2(a)(1)).
84 Id.
at 505.
85 601 U.S. 346, 350 (2024).
86 Id. at 359.
87 Id.
88 Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
22
off.
That being said, the Court turns to analyze each of the alleged adverse
employment actions in turn.
Placement on Unpaid Leave. Assuming, without deciding, that this counts in
the discrimination context, 89 Reyna cannot succeed on his claim. To succeed on this
theory, Reyna has the burden to show that others were treated more favorably. 90 To
show this, he alleges that Mrs. Aileen (first name unknown) was placed on light duty
after an injury, she was not sent home, and Epiroc did not deactivate her badge. 91
But Reyna alleged Mrs. Aileen is Hispanic. 92 To have an adequate comparator, the
comparator must be similarly situated but outside of the plaintiff’s protected class. 93
But Mrs. Aileen is Hispanic and so is Reyna. As a result, Reyna has not shown a
prima facie case as to placement on leave.
Denial of Overtime Opportunities. Denial of the chance to work is an adverse
employment action. This opportunity, shared by other employees at Epiroc, once
denied to Reyna meant he could not partake in an opportunity, or a privilege, of
employment. Reyna recalls that the way Epiroc did overtime: essentially, Epiroc
89 Later on, the Court will conclude that Reyna’s disability discrimination claim in the ADA
context lacks sufficient support for a showing of harm. Infra p. 48. The reason is that in disability
claims, unpaid leave can be either an accommodation or a harm—it’s very context dependent. Rather
than confuse the findings in this opinion, the Court elects to resolve the unpaid leave in the
discrimination context on alternative grounds.
90 Rutherford v. Harris County, 197 F.3d 173, 184 (5th Cir. 1999).
91 Doc. 66 at 20.
92 Doc. 68 at App. 541.
93 See Saketkoo v. Administrators of Tulane Educ. Fund, 31 F.4th 990, 998 (5th Cir. 2022) (“To
satisfy the ‘similarly situated’ prong [of a prima facie disparate treatment claim], the employee carries
out a comparator analysis . . . establish[ing] that she was treated less favorably than a similarly
situated employee outside of her protected class in nearly identical circumstances”).
23
would choose people to work overtime by going around and asking employees, rather
than allow signups for overtime work. 94 Reyna says no one ever stopped by his station
to ask if he wanted overtime. 95 But he never points to a specific comparator to show
that he was treated less favorably on the basis of race. As a result, his prima facie
case fails.
Denial of Electrical Training. The chance to train and improve one’s own skills
is likewise a privilege of employment.
If the employer denies an employee the
opportunity to do so, then it is a materially adverse employment action. Even if
Reyna was denied the opportunity to take electrical training, his claim still fails.
Here, Reyna sought electrical training and Chung put Reyna’s name on the list. 96 In
attempting to prove that other similarly situated workers were allowed the
opportunity, Reyna’s deposition states that “it was assemblers going there, too.” 97 But
his brief says, “[o]ther assemblers of different races attended the training Reyna was
denied.” 98 This is woefully below the threshold to show discrimination by similarly
situated individuals, and it’s misleading. At summary judgment, some evidence
showing a comparator should exist. But Reyna musters none. Therefore, his prima
facie case based on the trainings fails.
94 Doc. 45 at App. 70.
95 Doc. 45 at 74.
96 Doc. 66 at 24.
97 Doc. 45 at App. 27.
98 Doc. 66 at 25.
24
Assigned to clean for light duty instead of desk work. It may well be the case
that sometimes being assigned to clean for light duty, rather than desk work, is
actionable under Title VII. Unfortunately for Reyna, he has failed to show how he
was made worse off by engaging in cleaning as opposed to desk work. Reyna merely
provided a conclusory statement in a declaration that he found the work demeaning
and humiliating. 99 After Reyna was removed from mentoring work, he alleges that
he was made to clean for his light duty assignment instead. 100 In any event, Reyna
musters no evidence that a comparator was treated better. Even if moving to cleaning
duty were actionable, there is no indication that he was reassigned on the basis of his
race or national origin. Accordingly, Reyna’s prima facie case on this point fails.
Removed from Mentoring New Employees.
Removal from mentorship
opportunities can count as an adverse employment action. Mentoring was a part of
his job, 101 therefore making it a condition of employment under Title VII. Reyna
testified that he was removed from his job duty and that the two individuals he
mentored were moved to a White mentor named Jamie Tamez. 102 Tamez was in the
same department as Reyna and also worked as an assembler. 103 Because both are so
similar, and Tamez is White and American, 104 Tamez is a similarly situated person
for purposes of national origin and race discrimination. Reyna has shown a prima
99 Doc. 68 at App. 685.
100 Doc. 68 at App. 685.
101 Doc. 45 at App. 59.
102 Doc. 45 at App. 56.
103 Doc. 45 at App. 56–57.
104 Doc. 45 at App. 24.
25
facie case of discrimination and the burden of production shifts to Epiroc to proffer a
legitimate, non-discriminatory reason for the change.
Epiroc claims that Reyna’s mentees were so self-sufficient they no longer
required mentorship. 105 Epiroc also argues that it scaled back production during the
time Reyna was removed from mentorship. 106
But the mentees did require
mentorship, because Reyna states in his deposition that they were moved to a new
mentor. 107 Therefore, Reyna has shown that Epiroc’s proffered reason is merely
pretextual. Therefore, Reyna’s discrimination claim may proceed to trial.
*
*
*
Considering the foregoing, the Court DENIES summary judgment on Reyna’s
national origin and race discrimination claim based on removing Reyna from
mentoring new employees.
B. Retaliation
i. Direct Evidence (Retaliation under Title VII, TCHRA, Section 1981)
“Direct evidence is evidence which, if believed, proves the fact without
inference or presumption.” 108 “A plaintiff’s ultimate burden in the retaliation context
is to prove that but-for the employer’s improper retaliatory motive, the allegedly
retaliatory employment action would not have occurred.” 109 In general, to prove
105 Doc. 69 at 16.
106 Doc. 69 at 16.
107 Doc. 45 at App. 56.
108 Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (5th Cir.1993).
109 Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 547 F. App’x 484 (5th Cir. 2013)
(citing Nassar, 133 S. Ct. at 2533).
26
retaliation by direct evidence, a statement or document would take the form of “I did
[adverse employment action] to you because [protected activity].” If a plaintiff can
show retaliatory animus “then it becomes the employer’s burden to prove by a
preponderance of the evidence that the same decision would have been made
regardless of the [retaliatory] animus.” 110
In the context of retaliation, the “antiretaliation provision protects an
individual not from all retaliation, but from retaliation that produces an injury or
harm.” 111 In particular, “a plaintiff must show that a reasonable employee would have
found the challenged action materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” 112 Direct evidence is rare. 113 But rare does not mean impossible. The
Court will walk through each piece of direct evidence Reyna claims he has.
First: In 2018, Gudgel purportedly told Reyna that he could only use one
restroom, Gudgel told Reyna to only worry about himself, and Gudgel told Reyna that
if Reyna went to Human Resources, “it will get worse.” 114 Here, Reyna got extra
tickets for the company picnic from Human Resources. 115 Gudgel then confronted
Reyna about the extra tickets asking him why he went to Human Resources. 116 When
110 Jones, 427 F.3d at 992.
111 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).
112 Id. at 68 (cleaned up).
113 Jones, 427 F.3d at 992.
114 Doc. 45 at App. 26.
115 Doc. 68 at App. 548.
116 Doc. 68 at App. 548.
27
Gudgel continued to question Reyna, Reyna asked why Gudgel was questioning him
and not four other coworkers who also got tickets from Human Resources. 117 Reyna
suggested going to Human Resources to resolve the matter, Gudgel said “I’m going to
make it [worse].” 118 Reyna asked to be treated “equal” and Gudgel replied that “[It’s]
up to me how I treat you.” 119
Again, direct evidence of retaliation “is evidence which, if believed, proves the
fact of intentional retaliation without inference or presumption.” 120 That is, it must
reveal that the “protected activity was a but-for cause of the alleged adverse action
by the employer.” 121 This evidence cannot operate as direct evidence of retaliation
because Gudgel’s statement, if believed, needs more information to be direct evidence.
For one, when Gudgel said “it will get worse” we do not know what “it” means without
an inference that it refers to Reyna’s working conditions. For two, it is unknown
whether Gudgel made his statement in response to an attempt at making a charge of
illicit discrimination, rather than a complaint that he was not treated the same as
some of his coworkers. That is not apparent from the statement itself. Accordingly,
this cannot serve as direct evidence of retaliation.
Second: Gudgel asked Human Resources why they had not placed Reyna on
leave until he was medically cleared to return, and Gudgel admitted he did so in part
117 Doc. 68 at App. 548.
118 Doc. 68 at App. 548.
119 Doc. 68 at App. 548.
120 Fierros v. Texas Dep’t of Health, 274 F.3d 187, 195 (5th Cir. 2001) (cleaned up).
121 Nassar, 570 U.S. at 362.
28
because of all the complaints from Reyna. 122 The problem is this involves an inference
between what Gudgel said and what Human Resources did.
This is not direct
evidence.
Third: Reyna says HR Manager Alphonso Tyson apologized to him for having
a conversation about Reyna’s complaints on the production floor. 123 This is not direct
evidence that ties to an adverse action.
Fourth: Reyna alleges that “Leadman Chung verifies that Gudgel asked to
bring Reyna back to full duty 3 times.” 124 Even if that is true, it is direct evidence of
nothing retaliatory or discriminatory.
Fifth: Reyna alleges that Chung testified that Gudgel told Reyna that “if they
had too much indirect time (work not chargeable to the rig) that this would result in
a lay off and that Reyna thought his job was threatened. Chung testified that he felt
Gudgel’s comment was inappropriate.” 125
As with the others, this is not direct
evidence of retaliation or discrimination.
Sixth: “When Reyna complained about Gudgel to HR, Leadman Thang Nguyen
told Reyna that he ‘should not have done that.’” 126 This does not, in itself, show any
kind of retaliation.
ii. Indirect Evidence (Retaliation under Title VII, TCHRA, and Section 1981)
122 Doc. 45-3 at App. 213.
123 Doc. 66 at 13.
124 Doc. 66 at 13.
125 Doc. 66 at 13.
126 Doc. 66 at 13; Doc. 68 at App. 546.
29
A plaintiff can still prove retaliation with circumstantial evidence. To state a
retaliation claim under Title VII, the TCHRA, and Section 1981 with circumstantial
evidence, the employee must first establish a prima facie case, which entails showing
(1) he “engaged in protected activity;” (2) he “suffered an adverse employment action;”
and (3) “a causal link exists between the protected activity and the adverse
employment action.” 127
Reyna engaged in protected activity when he complained of unlawful
discrimination against him to Epiroc 128 and to the EEOC. 129 But Reyna cites only to
his EEOC charges of discrimination as protected activity. 130
His charges of
discrimination were filed on October 22, 2021; May 13, 2022; June 15, 2022; June 29,
2022; July 28, 2022; October 12, 2022; November 23, 2022; March 6, 2023; and June
26, 2023. 131 Reyna sent complaints to Human Resources on no less than fourteen
occasions, including March 14, 2021; April 6, 2022; April 8, 2022; April 25, 2022; April
27, 2022; April 29, 2022; May 23, 2022; June 8, 2022; July 7, 2022; August 16, 2022;
August 29, 2022; and on three other occasions without an ascertainable date. 132
Reyna argues that he suffered twelve adverse employment actions that
support his prima facie case. Those are: (1) he was denied two promotions; (2) he was
127 Wright, 990 F.3d at 433.
128 See Doc. 68 at App. 548–77.
129 See Rodriquez v. Wal-Mart Stores, Inc., 540 F. App’x 322, 328 (5th Cir. 2013) (“An employee
that files an internal complaint of discrimination engages in a protected activity.”).
130 Doc. 66 at 40.
131 Doc. 68 at App. 538–47
132 Doc. 68 at App. 548–74.
30
placed on unpaid medical leave; (3) he was denied overtime; (4) he was denied
training opportunities; (5) he was removed from mentoring; (6) he was denied
accommodations for light duty work; (7) he was surveilled, threatened, and yelled at;
(8) he was denied access to certain areas of Epiroc; (9) Human Resources did not
submit his FMLA application; (10) Epiroc deactivated his badge; (11) he was walked
out of the building twice; (12) and Epiroc did not provide safe working conditions for
him. 133
Denied Promotions. Reyna presses only his Leadman promotion claim in his
brief, so the Court will focus on that one. 134 His brief never discusses when the
interview occurred or when Epiroc made the decision not to hire him.
Digging
through the record, it appears he applied for the position in July of 2021, 135 which is
before any of the EEOC charges, but comes four months after his initial complaint to
Human Resources. Even a three-month lapse in time is insufficient to establish the
requisite temporal proximity in a retaliation case. 136 Therefore, there can be no
causation here between Reyna’s protected activity and the employment action.
Unpaid Leave. Epiroc placed Reyna on leave in July of 2022, which was less
than a month after his June 28, 2022 complaint. 137 Reyna took leave starting in early
133 Doc. 66 at 37–38.
134 Doc. 66 at 15–17.
135 Doc. 68 at App. 691.
136 See Yancy v. U.S. Airways, Inc., 469 F. App’x 339, 344 (5th Cir. 2012) (noting that the
Supreme Court approvingly cited cases holding that a three-month and four-month periods were not
enough to show causation in Clark Cnty. School Dist. v. Breeden, 532 U.S. 268, 273–74 (2001)).
137 Doc. 69 at 21.
31
July 2022. 138 Then on August 4, 2022, Epiroc reached out to Reyna about another
light duty position that might accommodate his restrictions. 139 Reyna then returned
to work on August 17, 2022. 140 Once that project ended in November, Reyna was sent
back out on leave again. 141 On November 21, 2022, Epiroc asked Reyna to return to
work with no restrictions. 142
For its legitimate, non-discriminatory reason, Epiroc asserts that Reyna was
“not placed on leave until his light duty work was completed and there was no
additional work available.” 143 Accordingly, the burden then shifts to Reyna and he
“must show that the adverse action would not have occurred but for the employer’s
retaliatory motive.” 144 That is, Reyna “must show a conflict in substantial evidence
as to but-for causation to avoid summary judgment.” 145 “Evidence is substantial if it
is of such quality and weight that reasonable and fair-minded men in the exercise of
impartial judgment might reach different conclusions.” 146
Reyna purportedly musters evidence showing that (1) “Gudgel suggested to HR
on June 2, 2022, that they should put Reyna out on leave,” because Gudgel was “sick
138 Reyna asserts he was placed on leave on July 7, 2022, Doc. 66 at 21, and Epiroc asserts he
was placed on leave on July 8, 2022, Doc. 69 at 23.
139 Doc. 45-2 at App. 143.
140 Doc. 45 at App. 64.
141 Doc. 45 at App. 66.
142 Doc. 68 at 545.
143 Doc. 69 at 7–8.
144 Shahrashoob v. Tex. A&M Univ., No. 23-20618, 2025 WL 47503, *7 (5th Cir. Jan. 8, 2025)
(cleaned up).
145 Id. (cleaned up).
2020).
146 Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 577 (5th Cir. 2020), as revised (Aug. 14,
32
of all the complaints about him;” (2) Tyson’s investigation found a failure of the
interactive process before putting Reyna on leave; (3) Gudgel asked to bring Reyna
back to full duty three times; and (4) Gudgel told Reyna that if Reyna did not charge
enough time to the rig then it would result in a layoff. 147
None of these displace Epiroc’s legitimate, non-retaliatory reason for placing
Reyna on leave. As for Gudgel’s testimony about being upset about the complaints
against him, Gudgel merely asked Human Resources why they had not placed Reyna
on leave until he was medically healthy. 148
The uncontroverted testimony reflects that Gudgel did not direct Human
Resources to do anything; rather, he was simply asking a question. 149 Reyna does not
press a cat’s paw liability theory on this claim, but the facts are simply too close that
the Court should analyze it anyway. Under this theory, Reyna must show that
Gudgel “used the decisionmaker to bring about the intended retaliatory action.” 150
Specifically, Reyna must show that (1) Gudgel “motivated by retaliatory animus, took
acts intended to cause an adverse employment action; and (2) those acts were a butfor cause of his [adverse employment action].” 151 As to the first point, the real issue
is whether or not Gudgel took actions that intended to cause an adverse employment
147 Doc. 66 at 21–22.
148 Doc. 45-3 at App. 213.
149 Doc. 45-3 at App. 213.
150 Wantou v. Wal-Mart Stores Texas, L.L.C., 23 F.4th 422, 436 (5th Cir. 2022) (cleaned up).
151 Zamora v. City of Houston, 798 F.3d 326, 333 (5th Cir. 2015).
33
action. The sole act is asking why Reyna had not been sent home until Reyna reached
“maximum medical improvement.”
Here, a jury could reasonably infer Gudgel
intended to induce Human Resources into placing Reyna on leave by asking the
question. A jury could reasonably conclude that Gudgel’s question was actually a
suggestion—more along the lines of a recommendation than a genuine question.
As for the second element, a jury could not reasonably infer that Gudgel’s
statement was the but-for cause of Reyna’s leave. Here, Reyna has shown another
cause (Gudgel’s retaliatory animus), but has not shown that it was the but-for cause
of the purportedly retaliatory act of placing him on leave. In fact, the most Reyna
gets is showing that retaliation played a role, but fell short in showing played the
role. To show but-for causation Reyna needed to present a conflict in substantial
evidence that other light duty work was available for Reyna at the time. While Reyna
states that someone named Mrs. Aileen was placed on light duty after an injury, 152 he
has not shown she is any kind of comparator for Reyna’s injury. Different people can
have different injuries which give them different workplace restrictions. Reyna has
failed to show any such comparator or any other evidence suggesting that when
Reyna was sent home that light duty work was available for him. Therefore, this
evidence cannot serve as a basis for denying summary judgment on the retaliation
claim.
152 Doc. 45-1 at App. 142.
34
As for Tyson’s finding that the interactive process failed, it is merely a
conclusion. 153
Reyna made no effort to support or substantiate Tyson’s findings
independent of reasserting his conclusion. This is insufficient to displace the notion
that Epiroc did not have light work available for Reyna.
Additionally, the fact Gudgel asked to bring Reyna back three times does not
show any retaliatory animus whatsoever. Instead, it shows that Gudgel wanted
Reyna back at Epiroc on full duty and not out on leave. 154 Moreover, Gudgel asking
about and seeking Reyna’s return says nothing about the availability of light duty
work for Reyna at the relevant time.
Finally, Gudgel purportedly told Reyna that if he charged too much “indirect
time,”—that is, work not chargeable to the rig—then it would result in a layoff. 155
Even if this is true, this has absolutely nothing to do with the availability of light
duty work—nor does it counter the claim that there was not enough. As a result,
Reyna failed to show pretext as to his claim based on unpaid leave. 156
Denial of Overtime. While denial of overtime can be an adverse employment
action, the only date Reyna provides in connection with this claim is March 24,
153 Doc. 66 at 21.
154 Doc. 45-7 at App. 405–06.
155 Doc. 66 at 21–22.
156 Reyna does not press that Simon Vargas’s statement to Reyna is evidence of pretext, but
even if he did, it would not carry the day. Reyna testified that “Simon had told me we have work all
the way to December.” Doc. 45 at App. 66. “Hearsay is not competent summary judgment evidence,
unless its proponent can show that the statement can be presented in an admissible form at trial.”
Miller v. Michaels Stores, Inc., 98 F.4th 211, 218 (5th Cir. 2024). Reyna has not provided a reason how
this statement being offered to prove the truth of the matter asserted could be admissible at trial. In
fact, Reyna disavowed having any personal knowledge of Epiroc’s workload, so all he knew on this
point came from Vargas. Doc. 45 at App. 67. Therefore, it is not competent summary judgment
evidence.
35
2023. 157 Epiroc proffers that Reyna was not offered overtime work because he was
assigned to Rig 91110 and Rig 91110 did not need any work, so he was not eligible for
overtime on that day. 158 Reyna has not provided any evidence that displaces this
legitimate, non-retaliatory reason for denying him overtime on the date in question.
Denial of Training Opportunities.
Reyna alleges he was denied electrical
training in June of 2018. 159 It is undisputed that Reyna was first put on the list to
train in June of 2018, was removed from the list, and then ultimately was allowed to
train in February of 2019. 160 First, Reyna fails to connect this with any protected
activity. Second, even if Epiroc denied him training at first, Reyna does not connect
the delay in training with any harm. He completely fails to show that the delay would
cause a reasonable employee to refrain from making a charge of discrimination. For
both reasons, his claim based on denial of training opportunities fails.
Removed from Mentoring. As noted above, being removed from mentorship
opportunities can be an adverse employment action in the Title VII discrimination
context. 161 But it’s a different ballgame in the retaliation context. In retaliation,
unlike in discrimination, plaintiffs must meet a significance test. 162 An employment
action is significantly adverse, or materially adverse, in the retaliation context when
157 Doc. 66 at 22.
158 Doc. 45-9 at App. 548.
159 Doc. 66 at 24.
160 Doc. 66 at 24; Doc. 69 at 15.
161 See supra p. 25.
162 See Muldrow v. City of St. Louis, Missouri, 601 U.S. 346, 357 (2024) (citing Burlington, 548
U.S. at 68).
36
it “deter[s] a reasonable employee from complaining about discrimination.” 163 And,
in particular, the reasonableness test is an objective one, but it is from a reasonable
person in the shoes of the employee.
For instance, “[a] schedule change in an
employee’s work schedule may make little difference to many workers, but may
matter enormously to a young mother with school-age children.” 164
Reyna has failed to show that he faced significant harm as a result of being
removed from mentorship opportunities.
All he cites to for his harm is his
declaration, 165 which states:
I began to [lose] job satisfaction, cleaning was not as fulfilling to me nor
was it prestigious. I became discouraged, my interest level declined
because I was being punished for my complaints. I worried that my coworkers and Leadmen would think I was not a good worker and that is
why I was cleaning instead of mentoring. 166
This only shows subjective harm and says nothing about an objective person in
Reyna’s shoes. While Reyna may have felt that his job without mentoring was less
satisfying, he has not produced any evidence that suggests that removing mentorship
opportunities is so significantly worse that it would deter a reasonable person from
reporting instances of discrimination.
Denial of Light Duty Work Accommodations. Reyna asserts this claim in a
single sentence, with very little detail, followed by five citations. 167 The only ones that
163 Burlington, 548 U.S. at 69.
164 Id. at 69 (cleaned up).
165 Doc. 66 at 26.
166 Doc. 68 at App. 685.
167 Doc. 66 at 37–38.
37
seemingly have anything to do with light duty work accommodations are Reyna’s
EEOC charges and Reyna’s testimony, where he discusses his light work. 168 But
Reyna never makes an argument as to how Epiroc “refused to accommodate and
honor Reyna’s light duty work, but accommodated and honored the restrictions of
other employees who did not engage in protected activity.” 169 The only other employee
Reyna mentions is Eric Griffin, and Reyna never shows anything as to whether
Griffin made any complaints or not. 170
As for the EEOC charges, while at least five of them make at least some
passing reference to accommodations and work restrictions, Reyna never frames an
argument for the retaliation context on this point. 171 Rather, he simply says this was
an adverse employment decision without further detail. The Court declines to craft
a legal argument where Reyna has not undertaken the effort to supply one himself.
Other retaliatory actions collectively. Reyna asks the Court to view the final
six purportedly retaliatory actions together, as a part of a “campaign of retaliatory
conduct.” 172 Those final six actions are: Gudgel yelling at, recording, and observing
Reyna; Epiroc denying him access to certain areas; Human Resources failing to
submit his FMLA application; Epiroc deactivating Reyna’s badge; multiple people
walking Reyna out of the building twice; and Epiroc failing to provide safe working
168 Doc. 45 at App. 59–60.
169 Doc. 66 at 37–38.
170 Doc. 45 at App. 59.
171 Doc. 68 at App. 538–47
172 Doc. 66 at 38.
38
conditions for Reyna. 173
These generally occur around the same time period as
Reyna’s protected activity.
At this juncture, some more context is helpful.
According to Reyna’s
deposition, Gudgel once yelled at Reyna for trying to get more tickets to the company
picnic (and on other occasions) 174, and told him that he could only use one restroom
and that if he went to Human Resources, it would “get worse.” 175 Reyna claims that
Madison Brotherton (née Farnsworth) did not submit his FMLA paperwork and, as a
result he had to do it himself, 176 which apparently resulted in Reyna’s pay being
delayed for a month. 177 As for the unsafe work environment, Reyna alleged that he
was (1) sent with a crew of three to do a job that required six people 178 and that (2) he
was asked to go to the tower department to use a crane. 179 Additionally, on June 9,
2022, Epiroc deactivated Reyna’s badge; on June 10, 2022, the Vice President of
Epiroc purportedly told Reyna to stop sending complaints about the company; 180 and
at some point, Epiroc posted Reyna’s picture in security. 181
Taken together, Reyna must show that this purported campaign of retaliation
would render a reasonable employee dissuaded from filing charges of discrimination.
173 Doc. 66 at 38.
174 Doc. 68 at App. 548.
175 Doc. 45 at App. 26.
176 Doc. 45 at App. 65.
177 Doc. 45 at App. 62–63; Doc. 66 at 7.
178 Doc. 68 at App. 547.
179 Doc. 45 at App. 28.
180 Doc. 68 at App. 541.
181 Doc. 68 at App. 685.
39
“A ‘campaign of retaliatory harassment’ is actionable only where it constitutes ‘a
constructive adverse employment action.’” 182 Thus, Reyna must show that the actions
constructively hired, fired, reduced compensation, or altered the “terms, conditions,
or privileges” of his employment. 183
To borrow from the constructive discharge line of cases, Reyna would need to
show that “working conditions were so intolerable that a reasonable employee” would
be deterred from making a charge of discrimination. 184 Whether a reasonable person
would be deterred from making a charge of discrimination in light of these actions is
a classic jury question. Accordingly, the Court moves to Epiroc’s legitimate, nonretaliatory reasons.
Epiroc does not provide any justification for Gudgel’s yelling at, observation of,
or denying access to Reyna. Instead, Epiroc attacked the severity of those instances,
but does not provide reasons for them. 185 The same goes for failing to file FMLA
paperwork, where Epiroc never argues why Epiroc failed to file the paperwork, rather
it simply said that the allegation is false. 186 On positing Reyna’s picture in security,
Epiroc failed to provide any justification for that as well.
182 Mylett v. City of Corpus Christi, 97 F. App’x 473, 476 (5th Cir. 2004) (quoting Colson v.
Grohman, 174 F.3d 498, 514 (5th Cir. 1999)).
183 Hamilton, 79 F.4th at 502–03 (quoting 42 U.S.C. § 2000e-2(a)(1) and citing Hishon v. King
& Spalding, 467 U.S. 69, 77 (1984)).
184 Herring v. Buc-ee’s Ltd., No. 23-20070, 2023 WL 5031491, at *1 (5th Cir. Aug. 7, 2023) (per
curiam).
185 Doc. 69 at 22–23.
186 Doc. 69 at 23.
40
As for the two walk-outs, Epiroc again fails to provide any reason at all for why
it walked him out or why it let him work a job meant for a six-man crew when he only
had two other people working with him. Rather, Epiroc again attacked whether it is,
in fact, retaliatory or unsafe, rather than providing some reason as to why it did what
it did. 187
As for badge deactivation, Epiroc claims this was a policy applied to all
employees, but never provides a record cite. 188 The closest Epiroc comes to describing
some sort of policy is from Brotherton’s declaration that states that she had
deactivated badges in other similar situations to Reyna’s when Epiroc could not
determine if an employee was safe to return to work. 189 But even the declaration
stops short of classifying it as Epiroc’s policy.
Therefore, Epiroc has failed to provide a legitimate, non-retaliatory reason for
its actions giving rise to the constructive change in terms, conditions, or privileges of
employment.
Other retaliatory actions individually. Reyna presses each of the above claims
as independent adverse employment actions as well. Because the information is
coming into trial anyway, the Court only notes that at a minimum he can show that
his claim on unsafe working conditions passes muster at the motion for summary
judgment stage.
187 Doc. 69 at 23–24.
188 Doc. 69 at 23.
189 Doc. 45-9 at App. 537.
41
Reyna asserts there were two sets of unsafe working conditions. One was when
Reyna was asked to use a crane in the Tower Department “[a] couple of times” and
he did not feel safe and asked a coworker for assistance. 190 Regardless, this occurred
before Reyna ever made any allegations to either Human Resources or the EEOC. 191
Accordingly there is no causation for the Tower Department conditions. The other
was when Chung sent Reyna and two of his trainees to do a job Reyna believes is for
six experienced employees. 192 This occurred on or around January 30, 2023, putting
it within two-and-a-half-months of an EEOC charge. 193 On this there is a fact dispute
as to whether three people or six experienced people are needed for the job. Chung
says the job can be done with only three, 194 but Reyna says the job needs six
experienced employees. 195 Accordingly, this is a proper question for the jury to decide.
*
*
*
Accordingly, the Court DENIES summary judgment for the race-and-nationalorigin-based retaliation claims.
190 Doc. 45 at App. 28.
191 Doc. 45 at App. 28.
192 Doc. 68 at App. 547.
193 This timeframe is right on the bubble. The Fifth Circuit noted that it has gone both ways
on a roughly two-and-a-half-month gap. See Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs,
810 F.3d 940, 948–49 (5th Cir. 2015). In another on-the-bubble case, the Fifth Circuit looked to broader
circumstances that indicate a relationship between the protected activity and the adverse action.
Amsel v. Texas Water Dev. Bd., 464 F. App’x 395, 402 (5th Cir. 2012) (unpublished). According to
Reyna, Chung told him to stop making complaints about Gudgel. Doc. 45-9 at App. 517. This piece of
information gives the causation inference the slight push it needs to cross the finish line.
194 Doc. 45-7 at App. 408.
195 Doc. 68 at App. 547.
42
iii. ADA
The elements of a Title VII retaliation claim and an ADA retaliation claim are
essentially the same, but they protect different activity.
To establish unlawful
retaliation under the ADA, a plaintiff must establish: (1) he engaged in an activity
protected by the ADA, (2) he suffered an adverse employment action, and (3) there is
a causal connection between the adverse act and the protected action. 196
Reyna does not defend this cause of action at this stage of the litigation. As a
result, the Court GRANTS summary judgment as to this claim.
C. Failure to Accommodate Disability
Reyna claims that Epiroc failed to accommodate his disability. To succeed on
this claim, Reyna needs to show (1) he is a “qualified individual with a disability;
(2) the disability and its consequential limitations were known by the covered
employer; and (3) the employer failed to make reasonable accommodations for such
known limitations.” 197
The bulk of the parties’ dispute here is whether Reyna was a qualified
individual.
A qualified individual is one who “with or without reasonable
accommodation, can perform the essential functions of the employment position that
such individual holds or desires.” 198 The definition in the ADA goes on to read:
For the purposes of this subchapter, consideration shall be given to the
employer’s judgment as to what functions of a job are essential, and if
an employer has prepared a written description before advertising or
196 Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999).
up).
197 Feist v. La., Dep’t of Justice, Off. of the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013) (cleaned
198 42 U.S.C. § 12111(8).
43
interviewing applicants for the job, this description shall be considered
evidence of the essential functions of the job. 199
This is essentially a two-step inquiry: “(1) whether the individual meets the necessary
prerequisites for the job, such as education, experience, skills, and the like; and
(2) whether the individual can perform the essential job functions, with or without
reasonable accommodation.” 200
Reyna’s view of the events is that after he became injured, Epiroc allowed him
to work for three months as an assembler before removing his mentees, making him
clean, and placing him on unpaid medical leave. 201 Reyna bases his argument in part
on his declaration that reads: “I was allowed to work as an Assembler using only one
hand for more than three months. I performed the duties I could perform with a
single hand which included essential duties such as maneuvering cranes and tools,
moving heavy hardware[,] hooking up ropes[,] and mentoring new employees, during
this time.” 202 The timeline is important here: Reyna injured his hand in January of
2022, 203 he was “off for a while, and then came back to work,” 204 and then was put on
medical leave in July of 2022. 205 It appears that for some period between January
and July, Reyna, in his words, “work[ed] as an Assembler.” 206
199 Id.
200 Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 n.14 (5th Cir. 1997) (citing 42 U.S.C.
§ 12111(8); 29 C.F.R. § 1630.2(m)(1994)).
201 Doc. 66 at 48.
202 Doc. 68 at App. 686.
203 Doc. 44 at 1.
204 Doc. 67 at App. 394.
205 Doc. 66 at 64.
206 Doc. 68 at App. 686.
44
Epiroc has a different view. Epiroc argues that Reyna could not perform all
the essential job functions without his left hand and that Reyna never identified any
accommodation that Epiroc could have used. 207 Epiroc provided a job description that
includes such “principal responsibilities” as “install and connect hydraulic controls,
pumps, rams, and other system elements;” “[m]ount, hook-up and connect engines,
gear boxes, axles and other power components and units;” and “[a]ssemble mounted
hydraulic products which includes the installation and tightening of common bolts
and hydraulic hosed per process sheets.” 208 Under “required physical effort” the job
description requires “[m]oderate physical demand in handling materials and tools
while performing welding, assembly and related operations. May be required to lift
up to 30 lbs. Work also involves climbing or working at elevated heights using
ladders, scissor and snorkel lifts.” 209 In Madison Brotherton’s declaration, she states
that: “The Assembler job necessarily requires all Assemblers to use both hands in
order to perform the work required, such as installing, assembling, and connecting
hydraulic controls, pumps, and other equipment, as indicated on the job
description.” 210 As a result, Epiroc argues, Reyna is not a qualified individual for
these purposes.
So, to create a fact dispute, Reyna needs to present facts as to whether he could
perform the essential job functions, with or without an accommodation. He does. He
207 Doc. 69 at 19.
208 Doc. 45 at App. 97.
209 Doc. 45 at App. 98.
210 Doc. 45-9 at App. 536–37.
45
states that he “was allowed to work as an Assembler using only one hand for more
than three months.” 211 He goes on to state that he “performed the duties [he] could
perform with a single hand which included essential duties such as maneuvering
cranes and tools, moving heavy hardware[,] hooking up ropes[,] and mentoring new
employees, during this time.” 212 This creates a fact dispute as to whether Reyna could
perform the essential duties of an assembler despite his disability: Epiroc argues he
could not perform the duties with one hand, and Reyna argues he could. This gets to
the heart of his accommodation claim, because it is essential in determining whether
he is qualified or not. 213
Next, Reyna makes passing references in his brief to the lack of an “interactive
process” to find reasonable accommodations. 214
“An employee who needs an
accommodation because of a disability has the responsibility of informing her
employer.” 215 Once the employee informs the employer, the employer must “engage
in an ‘interactive process’: a meaningful dialogue with the employee to find the best
means of accommodating that disability.” 216 The single piece of evidence to which
Reyna cites is the fact that HR Manager “Tyson’s investigation found Epiroc failed to
engage in the interactive process before sending Reyna on medical leave.” 217 This is
211 Doc. 68 at App. 686.
212 Doc. 68 at App. 686.
up).
213 See Moss v. Harris Cnty. Constable Precinct One, 851 F.3d 413, 417 (5th Cir. 2017) (cleaned
214 See, e.g., Doc. 66 at 47–48.
215 E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 621 (5th Cir. 2009).
216 Id. (cleaned up).
217 Doc. 66 at 48.
46
an admission that Epiroc failed to provide the interactive process Reyna was due. As
a result, Epiroc cannot succeed on this point.
Finally, Epiroc notes that, at his deposition, when asked: “At all times Epiroc
accommodated your restrictions; correct?” Reyna replied: “Correct.” 218 Reyna takes
the position in this litigation that Epiroc unjustifiably placed him on leave when he
could have been working as an assembler. 219
Being placed on leave can be an
accommodation, 220 but it is not necessarily a reasonable accommodation, which is
what the test for failure to accommodate requires.
The Court DENIES summary judgment as to the failure to accommodate
claim.
D. Disability Discrimination
Reyna claims that Epiroc discriminated against him on the basis of disability.
To succeed here on his prima facie case Reyna must show “(1) he has a disability;
(2) he was qualified for the job; and (3) he was subject to an adverse employment
decision on account of his disability.” 221
Reyna asserts that two of Epiroc’s actions were adverse actions under the ADA.
These are “reassignment to cleaning duties and the two unpaid medical leaves.” 222
Importantly, Reyna must show that his disability was a “motivating factor” in the
218 Doc. 45 at App. 45.
219 See Doc. 66 at 48.
220 See infra p. 48.
221 Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 479 (5th Cir. 2016) (cleaned up).
222 Doc. 66 at 49.
47
adverse employment decisions. 223 “The ADA does not prohibit adverse action due to
a consequence of a disability, such as being unable to report to work regularly or to
perform essential job duties as a result of an injury or illness.” 224 The plaintiff must
show he suffered “some harm respecting an identifiable term or condition of
employment,” 225 in part because of his disability, at the hands of his employer.
As for Reyna’s argument that being placed on unpaid leave is an adverse
employment decision, he needs to show that he was placed on leave, at least in part,
because he is disabled. Epiroc placed Reyna on unpaid medical leave. Reyna seems
to take for granted that unpaid medical leave is an adverse employment action in the
context of disabilities. But “[t]ime off, whether paid or unpaid, can be a reasonable
accommodation, but an employer is not required to provide a disabled employee with
indefinite leave.” 226
Since unpaid leave can be an accommodation or constitute harm to the
employee, the burden of production is on the plaintiff to show harm. The bare fact
that the employee is on unpaid leave is not enough to show that it was, in fact,
harmful. Reyna needed to show that he suffered some harm from the unpaid medical
leave. He did not make such a showing. As a result, he has failed to make his prima
facie case on this theory.
223 Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008).
224 E.E.O.C. v. Mod. Grp., Ltd., 725 F. Supp. 3d 577, 627 (E.D. Tex. 2024) (collecting cases).
225 Muldrow, 601 U.S. at 355 (emphasis added).
226 Moss, 851 F.3d at 418 (cleaned up).
48
Reyna also argues that cleaning for light duty is an actionable adverse
employment decision. 227 He takes issue specifically with being assigned to clean for
light duty, while others got to do desk work. 228 Reyna cites to Johnson-Lee v. Texas
A&M University–Corpus Christi 229 for the proposition that being assigned “domestic
chores” is sufficient to allege an adverse action. 230 But that case is distinguishable,
because cleaning was not a part of Johnson-Lee’s job duties. 231 Here, “maintain the
cleanliness of the assembly area” is not only a job duty, but is listed as one of the
“principal responsibilities” of an assembler. 232
Reyna needs to show here that
cleaning is objectively worse than desk work—his subjective perception is not
enough. 233 But Reyna provides no evidence that cleaning is objectively worse than
desk work, especially under the circumstances. Desk work can be monotonous and
lacking in prestige. 234 Cleaning can entail being a groundskeeper, taking part in the
Notre Dame football experience. 235 The objective delta in quality between desk work
at Epiroc and cleaning at Epiroc is an unknown. Reyna needed to provide some
evidence on that but failed to do so. As a result, his prima facie case fails.
227 Doc. 66 at 26.
228 Doc. 66 at 27.
229 729 F. Supp. 3d 709 (S.D. Tex. 2024).
230 Doc. 66 at 26.
231 Johnson-Lee, 729 F. Supp. 3d at 718.
232 Doc. 45 at App. 97.
233 Forsyth v. City of Dall., Tex., 91 F.3d 769, 774 (5th Cir. 1996) (“a plaintiff’s subjective
perception that a demotion has occurred is not enough”).
234 See, e.g., Office Space (Twentieth Century Fox, 1999).
235 See, e.g., Rudy (TriStar Pictures, 1993).
49
Independent from the reasoning presented above, the Court additionally finds
that advancing inadequate accommodation theories in the disability discrimination
framework really doesn’t work for two reasons. First, in law, the specific governs the
general. Here, the more specific claims for failure to accommodate governs the more
general claim for disability discrimination. 236 To hold that these accommodationbased theories of disability discrimination belong in the broader framework of
disability discrimination (rather than in the more specific framework of failure-toaccommodate) erodes the difference between the two claims. Second, it doesn’t really
work in practice because accommodations are given precisely because an employee is
injured and needs some help in one way or another. By fitting the square pegs
(accommodation claims) in a round hole (disability discrimination framework), the
plaintiff secures the causation element and avoids the reasonableness inquiry merely
by a function of pleading.
Therefore, the Court GRANTS summary judgment on the disability
discrimination claim.
E. Hostile Work Environment
A hostile work environment claim exists when all the circumstances indicate
that “the workplace is permeated with discriminatory intimidation, ridicule, and
236 See Sambrano v. United Airlines, Inc., 707 F. Supp. 3d 652, 670 (N.D. Tex. 2023),
reconsideration denied, 347 F.R.D. 155 (N.D. Tex. 2024) (discussing this with retaliation and failure
to accommodate claims).
50
insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” 237
For one’s hostile work environment claim to succeed at summary judgment,
the plaintiff must show five elements:
(1) the victim belongs to a protected group; (2) the victim was subjected
to unwelcome harassment; (3) the harassment was based on a protected
characteristic; (4) the harassment affected a term, condition, or privilege
of employment; and (5) the victim’s employer knew or should have
known of the harassment and failed to take prompt remedial action. 238
“For harassment to be sufficiently severe or pervasive to alter the conditions of the
victim’s employment, the conduct complained of must be both objectively and
subjectively offensive.” 239 To determine objective offense, courts consider “the totality
of the circumstances, including (1) the frequency of the discriminatory conduct; (2) its
severity; (3) whether it is physically threatening or humiliating, or merely an
offensive utterance; and (4) whether it interferes with an employee’s work
performance.” 240
The only alleged incidents for which there is supporting sworn testimony that
concern race are: (1) Reyna would overhear two employees using the word “wetbacks”
when he worked on a machine, 241 (2) “Gudgel laughed when two White employees
used racially offensive language to refer to Plaintiff’s ‘tios and tias’ when Plaintiff
wanted to bring his family to a company picnic,” but did not question White employees
237 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (cleaned up).
238 WC&M Enters., Inc., 496 F.3d at 399.
239 Id. at 399 (citing Harris Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993)).
240 Id. (citing Harris).
241 Doc. 45 at App. 27–28.
51
about their extended families coming to the company picnic, 242 (3) a whole host of
yelling and berating, (4) denied Reyna job opportunities, 243 and (5) one instance where
Gudgel “grabbed a one (1) inch strap, proceeded to fold it and grabbed it and swung
it around while walking around the rig where [Reyna] was work[ing], three (3) times
. . . going back and forth all while looking at [Reyna]. [Reyna believed] he was trying
to intimidate, and harass [Reyna]. He only did this on the rig where [Reyna] was
located, and no one else.” 244
First, it is not clear that the yelling, berating, and intimidation described under
point (3) is because of Reyna’s protected characteristic. Reyna never shows that the
yelling or berating included racial animus, and his failure to promote claim failed.
This cannot serve as a basis for a hostile work environment claim, as Reyna never
shows this had anything to do with his race or national origin.
The way the objective analysis works here is this: one extremely severe
incident may be enough or very many small incidents can be enough. 245 Here, there
is more than one, but less than the many sustained racial slights that the Fifth
Circuit has considered enough in the past. For instance, “a continuous pattern of
much less severe incidents of harassment” can suffice. 246
242 Doc. 66 at 31.
243 Doc. 66 at 32.
244 Doc. 68 at App. 541.
245 Melvin v. Barr Roofing Co., 806 F. App’x 301, 309 (5th Cir. 2020).
246 WC&M Enters., Inc., 496 F.3d at 400.
52
The Fifth Circuit found conduct pervasive when a plaintiff received unwanted
phone calls “ten to fifteen times a night for almost four months.” 247 The Fifth Circuit
also found conduct pervasive when it occurred “two or three times a week.” 248 Because
the Court needs to assess frequency to assess harassment, failing to “estimate how
many times” objectionable conduct occurred weighs against a finding of hostile work
environment. 249 As the Supreme Court has advised, “offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes in the
terms and conditions of employment.” 250
On the continuum between offhand
comments and extremely serious incidents, the incidents here are closer to offhand
comments. Indeed the Fifth Circuit found that “two instances of racial graffiti and
being called ‘boy’” were “insufficient to establish a hostile work environment.” 251 In
another case, Frazier v. Sabine River Authority, regretfully similar to the purported
facts in this case, a threat, a co-worker’s use of the N-word in the plaintiff’s presence,
using the word “Negreet,” and making a noose gesture, the Fifth Circuit affirmed the
district court’s holding that the incidents were “isolated and not severe or pervasive
enough to support a hostile work environment claim.” 252
At this point, all the Court has to go on is an unknown number of times Reyna
heard the term “wetback” while on a machine, an alleged instance where his
247 Lauderdale v. Tex. Dept. of Crim. Just., Institutional Div., 512 F.3d 157, 164 (5th Cir. 2007).
248 Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996)
249 Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 328 (5th Cir. 2004).
250 Faragher, 524 U.S. at 788 (cleaned up).
251 Collier v. Dall. Cnty. Hosp. Dist., 827 F. App’x 373, 377–78 (5th Cir. 2020).
252 509 F. App’x 370, 374 (5th Cir. 2013).
53
supervisor laughed when coworkers allegedly referred to Reyna’s “tios and tias,” and
Reyna’s supervisor swinging a strap around near him. Because these events are not
great in number, they need to be sufficiently severe give rise to a fact dispute on
severity and pervasiveness. Considering the events together, they do not rise to the
level of a hostile work environment along the lines of Frazier. In total, these events
are regretfully nearly identical to those described in Frazier and the Court sees no
reason to depart from the Fifth Circuit’s opinion in that case.
Accordingly, the Court GRANTS the motion for summary judgment as to
Reyna’s hostile work environment claim.
VI. Motion to Stay
Epiroc filed a motion to stay pending a ruling on the motion for summary
judgment. Since the Court rules on that motion in this order, the Court FINDS AS
MOOT the motion to stay.
VII. Conclusion
Having considered the parties’ briefs and the evidence presented, the Court
GRANTS IN PART and DENIES IN PART the motion for summary judgment,
GRANTS IN PART and DENIES IN PART the motion to strike, DENIES the
motion to exclude, and FINDS AS MOOT the motion to stay.
IT IS SO ORDERED this 28th day of January, 2025.
____________________________________
BRANTLEY STARR
UNITED STATES DISTRICT JUDGE
54
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