Mitchell v. Energy Transfer Partners L.P.

Filing 29

OPINION AND ORDER granting 17 Motion for Summary Judgment.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FREDDIE MITCHELL,
Plaintiff,
VS.
ENERGY TRANSFER PARTNERS, LP,
Defendant.

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§

February 09, 2017
David J. Bradley, Clerk

Civ. A. H-14-2784

OPINION AND ORDER GRANTING SUMMARY JUDGMENT
The First Amended Complaint (instrument #7) in the above
referenced case alleges racial discrimination leading to Plaintiff
Freddie

Mitchell’s

(“Mitchell’s”)

purported

termination

in

violation of Title VII of the Civil Rights Act of 1964, as amended
by the Civil Rights Act of 1991, and in violation of the Texas
Commission on Human Rights Act (“TCHRA”), Texas Labor Code Ann. §§
21.001-21.556,1 and violations of the Family and Medical Leave Act
(the “FMLA”), 42 U.S.C. § 2000e, et seq., following Mitchell’s
return from authorized leave under the FMLA, and seeking reemployment, compensatory damages, costs including attorneys’ fees,
and other relief to which he may be entitled.

1

Pending before the

The popular name for Chapter 21 of the Texas Labor
Code is the Texas Commission on Human Rights Act or TCHRA. Texas
abolished the Texas Commission on Human Rights in March 2004 and
transferred its duties to the Texas Workforce Commission.
Although the Texas Supreme Court stated it would not use the
earlier name, the popular name is still used by many courts.
Little v. Texas Dept. of Criminal Justice, 148 S.W. 3d 374, 377-78
(Texas 2004); ATI Enterprises, Inc. v. Din, 413 S.W. 3d 247, 249
n.3 (Tex. App.--Dallas 2013).
-1-

Court is Defendant Energy Transfer Partners, L.P.’s (“Energy’s”)2
motion for summary judgment (instrument

#17).

In his opposition (#19) to the motion for summary
judgment, Mitchell states that “[a]fter conducting discovery,
Plaintiff has decided to no longer pursue the FMLA claims.”
p.6, n.1.

#19,

Therefore the Court dismisses Mitchell’s claims under

the FMLA with prejudice and does not otherwise address them here.
Standard of Review
Summary judgment under Federal Rule of Civil Procedure
56(c) is appropriate when, viewing the evidence in the light most
favorable

to

the

nonmovant,

the

court

determines

that

“the

pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.”

A dispute of material

fact is “genuine” if the evidence would allow a reasonable jury to
find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).

2

Energy states several times in footnotes in the
pleadings that it did not employ Mitchell at any time, that it is
incorrectly named as a Defendant in this suit, and that instead,
at all times relevant to this suit, Mitchell was employed by La
Grange Acquisition, L.P. Because Energy has not moved to dismiss
itself or for summary judgment, but has voluntarily remained in
this suit and defended against Mitchell’s claims, the Court
assumes Energy has abandoned this defense, and it treats Energy as
the proper Defendant.
Furthermore, Exhibit 4 to Mitchell’s
opposition (#19-4) to the motion for summary judgment, an internal
document of Energy, indicates that Mitchell was hired by “Energy
Transfer Company, (Our Midstream and Transportation Business), a
wholly owned affiliate of Energy Transfer Partners, L.P.”
-2-

Initially the movant bears the burden of identifying
those portions of the pleadings and discovery in the record that
it finds demonstrate the absence of a genuine issue of material
fact on which the nonmovant bears the burden of proof at trial; a
“complete failure of proof concerning an essential element of the
nonmoving

party’s

immaterial.”

case

necessarily

renders

all

other

facts

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);

Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1990);
Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998).
If the movant meets its burden and points out an absence
of evidence to prove an essential element of the nonmovant’s case
on which the nonmovant bears the burden of proof at trial, the
nonmovant must then present competent summary judgment evidence to
support the essential elements of its claim and to demonstrate
that there is a genuine issue of material fact for trial.
National Ass’n of Gov’t Employees v. City Pub. Serv. Board, 40
F.3d 698, 712 (5th Cir. 1994).

The nonmovant may not rely merely

on

a

allegations,

denials

in

pleading

or

unsubstantiated

assertions that a fact issue exists, but must set forth specific
facts showing the existence of a genuine issue of material fact
concerning every element of its cause(s) of action.

Morris v.

Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
Conclusory allegations unsupported by evidence will not
preclude summary judgment.

National Ass’n of Gov’t Employees v.

City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d
1322, 1325 (5th Cir. 1996). “‘[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
-3-

properly supported motion for summary judgment . . . .’”

State

Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990),
quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48
(1986).

“Nor is the ‘mere scintilla of evidence’ sufficient;

‘there must be evidence on which the jury could reasonably find
for the plaintiff.’” Id., quoting Liberty Lobby, 477 U.S. at 252.
The Fifth Circuit requires the nonmovant to submit “‘significant
probative evidence.’” Id., quoting In re Municipal Bond Reporting
Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1978), and citing
Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d
194, 197 (5th Cir. 1986).

“If the evidence is merely colorable,

or

probative,

is

not

granted.”

significantly

summary

judgment

may

be

Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th

Cir. 1999), citing Celotex, 477 U.S.

at 322, and Liberty Lobby,

477 U.S. at 249-50.
Allegations in a plaintiff’s complaint are not evidence.
Wallace

v.

Texas

Tech

Univ.,

80

F.3d

1042,

1047

(5th

Cir.

1996)(“[P]leadings are not summary judgment evidence.”); Johnston
v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir. 1995)(for
the

party

opposing

the

motion

for

summary

judgment,

“only

evidence-–not argument, not facts in the complaint--will satisfy’
the burden.”), citing Solo Serve Corp. v. Westown Assoc., 929 F.2d
160, 164 (5th Cir. 1991).

The nonmovant must “go beyond the

pleadings and by [his] own affidavits, or by depositions, answers
to interrogatories and admissions on file, designate specific
facts showing that there is a genuine issue of material fact for

-4-

trial.”

Giles v. General Elec. Co., 245 F.3d 474, 493 (5th Cir.

2001), citing Celotex, 477 U.S. at 324.
The court must consider all evidence and draw all
inferences from the factual record in the light most favorable to
the nonmovant.

Matsushita Elec. Indus. Co. v. Zenith Radio, 475

U.S. 574, 587 (1986); National Ass’n of Gov’t Employees v. City
Pub. Serv. Board, 40 F.3d at 712-13.
Relevant Law
Under § 703(a) of Title VII, 42 U.S.C. § 2000e-2(a)(1)
and (2), it is “an unlawful employment action for an employer .
. . (1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with respect
to

his

compensation,

terms,

conditions,

or

privileges

of

employment because of such individual’s race, color, religion,
sex, or national origin; or (2) to limit, segregate, or classify
his employees or applicants for employment in any way which would
deprive

or

tend

to

deprive

any

individual

of

employment

opportunities or otherwise adversely affect his status as an
employee, because of such individual’s race, color, religion, sex
or national origin.”
Pursuant to the statute, suit may be brought under two
distinct theories of discrimination, disparate treatment and
disparate impact.

International Brotherhood of Teamsters v.

United States, 431 U.S. 324 (1977); Pacheco v. Mineta,448 F.3d
783, 787 (5th Cir. 2006), cert. denied, 549 U.S. 888 (2006).
Title VII expressly prohibits both (1) intentional discrimination
based on race, color, religion, sex or national origin, known as
-5-

“disparate treatment,” as well as (2) an employer’s facially
neutral practices that are discriminatory in operation against
protected groups (race, color, religion, sex or national origin)
and not required by the nature of the job, known as “disparate
impact”. 42 U.S.C. §§ 2000e-2(a)(1) and 2000e(k)(1)(A); Ricci v.
DeStefano, 129 S. Ct. 2658, 2672-73 (2009); Pacheco, 448 F.3d at
787.

The instant suit is one for disparate treatment, which

requires proof of discriminatory motive. Pacheco, 448 F.3d at
787.
A plaintiff may establish a claim of discrimination
under Title VII by presenting direct evidence or by using the
indirect method of proof set out in McDonnell Douglas Corp. v.
Green,

411 U.S. 792 (1973).

This suit falls in the latter

category.
Under

the

McDonnell

Douglas

framework

applied

to

circumstantial evidence cases, a plaintiff must first make a
prima facie case of employment discrimination.

To establish a

prima facie case of intentional discrimination under a disparate
treatment theory Plaintiff must demonstrate that he “(1) is a
member of a protected class (Mitchell is African American); (2)
was qualified for the position; (3) was subjected to an adverse
employment action; and (4) was replaced by someone outside the
protected class, or in the case of disparate treatment, shows
that other similarly situated employees [not in the protected
class] were treated more favorably.”
375 F.3d 358, 360 (5th Cir. 2004).

-6-

Bryan v. McKinsey & Co.,

An

“adverse

employment

action

for

Title

VII

discrimination claims based on race, color, religion, sex, or
national origin
such

as

hiring,

compensating.’”

“‘include[s] only ultimate employment decisions
granting

leave,

discharging,

promoting,

or

McCoy v. City of Shreveport, 492 F.3d 551, 559

(5th Cir. 2007), quoting Green v. Administrator of Tulane Educ.
Fund, 284 F.3d 641, 657 (5th Cir. 2002). “Title VII was only
designed

to

address

‘ultimate

employment

decisions,

not

to

address every decision made by employers that arguably might have
some tangential effect upon those ultimate decisions.’”

Burger

v. Central Apartment Mgmt., Inc., 168 F.3d 875, 878 (5th Cir.
1999)(emphasis in original), quoting Mattern v. Eastman Kodak
Co., 104 F.3d 702, 707 (5th Cir.), cert. denied, 522 U.S. 932
(1997),(abrogated on other grounds by Burlington Northern and
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

If an employer’s

action fails to have more than a “mere tangential effect on a
possible

future

ultimate

employment

decision,”

constitute an adverse employment action.
708.

it

does

not

Mattern, 104 F.3d at

To be actionable, an adverse employment decision must be a

“tangible employment action that constitutes a significant change
in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.”

Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998).
“[A] decision made by an employer that only limits an
employee’s opportunities for promotion or lateral transfer does
not qualify as an adverse employment action under Title VII.”
-7-

Banks v. East Baton Rouge Parish School Board, 320 F.3d 570, 575
(5th Cir. 2003), citing Burger, 168 F.3d at 878-80 (holding that
an employer’s refusal of an employee’s request for a “purely
lateral transfer” does not qualify as an adverse employment
action under Title VII).

See also Dollis v. Rubin, 77 F.3d 777,

781-82 (5th Cir. 1995)(affirming decision that an employer’s
denial of a “desk audit” to a female employee is not an adverse
personnel action under Title VII, even though the employee
claimed

that

opportunities”),

the

decision

overruled

restricted

in

part

on

her
other

“promotional
grounds

in

retaliation cases only, Burlington N. and Santa Fe Ry. v. White
(hereinafter

“Burlington

N.”),

548

U.S.

53

(2006)(rejecting

limiting actionable retaliation claims to ultimate employment
decisions and redefining adverse employment action in retaliation
context as any action that might have dissuaded a reasonable
worker from making or supporting a charge of discrimination). By
themselves, documented reprimands, though potentially affecting
future employment decisions, do not qualify as adverse employment
decisions.

Thompson v. Exxon Mobil Corp., 344 F. Supp. 2d 971,

981 (E.D. Tex. 2004), citing Felton v. Polles, 315 F.3d 470, 487
(5th Cir. 2002)(abrogated on other grounds in retaliation cases
only by Burlington N.), and Raggs v. Mississippi Power & Light
Co., 278 F.3d 463, 470 (5th Cir. 2002).

The same is true of

negative performance evaluations, even if they were not deserved.
Thompson, 344 F. Supp. 2d at 981 (and cases cited therein).
Disciplinary write-ups also fail to qualify as adverse employment
actions.

Id. at 982, citing Mattern, 104 F.3d at 707, and
-8-

Carthon v. Johnson Controls, Inc., 100 Fed. Appx. 993, 997 (5th
Cir. 2004)(The employee’s “receipt of a single disciplinary
warning-–without an attendant change in the terms or conditions
of his employment–-does not qualify as an ultimate employment
decision.”).

See also Walker v. Thompson, 214 F.3d 615, 629 (5th

Cir. 2000)(employer’s decision to

take away a big account from

an employee after she filed an EEOC complaint did not constitute
an adverse employment action even though it decreased her chances
of advancement); Davis v. Miss. Transp. Commission, 618 F. Supp.
2d 559, 564 (S.D. Miss. 2009)(“[W]e have repeatedly held that an
employment action that limits an employee’s future opportunities
for promotion, but does not affect the employee’s job duties,
compensation,

or

benefits,

does

not

qualify

as

an

adverse

employment action.”).
For the fourth prong, “similarly situated” employees
are

employees

who

are

treated

more

favorably

in

”nearly

identical” circumstances3; the Fifth Circuit defines “similarly
3

259-60 (5

th

See Lee v. Kansas City Southern Ry. Co., 574 F.3d 253,
Cir. 2009), discussing “similarly situated” employees:

Employees with different supervisors, who
work for different divisions of a company or
who were the subject of adverse employment
actions too remote in time from that taken
against the plaintiff generally will not been
deemed
similarly
situated.
Likewise,
employees
who
have
different
work
responsibilities or who are subjected to
adverse employment action for dissimilar
violations are not similarly situated. This
is because we require that an employee who
proffers a fellow employee as a comparator
demonstrate that the employment actions at
issue were taken “under nearly identical
circumstances.” The employment actions being
-9-

situated” narrowly.

Silva v. Chertoff, 512 F. Supp. 2d 792, 803

n.33 (W.D. Tex. 2007).4

Similarly situated individuals must be

compared will be deemed to have been taken
under nearly identical circumstances when the
employees being compared held the same job or
responsibilities, shared the same supervisor
or had their employment status determined by
the same person, and have essentially
comparable
violation
histories.
And,
critically, the plaintiff’s conduct that drew
the adverse employment decision must have
been “nearly identical” to that of the
proffered comparator who allegedly drew
dissimilar employment decisions.
If the
“difference between the plaintiff’s conduct
and that of those alleged to be similarly
situated accounts for the difference in
treatment received from the employer,” the
employees are not similarly situated for the
purposes
of
employment
discrimination
analysis. [footnotes omitted]
4

District Court Judge Montalvo in Silva listed the
following examples in n.33:
Wheeler [v. BL Dev. Corp., 415 F.3d 399, 406
(5th Cir. 2005)], (finding insufficiently
identical circumstances where the terminated
white plaintiff and a black manager who
remained employed had the same supervisor,
were both company directors, and were both
accused of removing company assets at
relatively the same time; the Court of
Appeals noted that the white plaintiff lied
repeatedly during the course of the company’s
investigation, while the black employee
admitted her actions; in addition, the value
of the property the black employee removed
was “dramatically less” than the property the
white plaintiff removed); Mayberry [v. Vought
Aircraft Co., 55 F.3d 1086, 1090 (5th Cir.
1995)](finding that the plaintiff had not
shown “nearly identical” circumstances merely
because he produced evidence that white and
black employees in the same position had
scrapped parts due to the employer’s operator
error or poor workmanship, but were not
disciplined; the plaintiff had not shown that
the undisciplined employees had, like him, a
history of poor work performance and scrapped
-10-

“nearly

identical”

protective class.

and

must

fall

outside

the

plaintiff’s

Wheeler v. BL Dev. Corp., 415 F.3d 399, 405

(5th Cir.), cert. denied, 546 U.S. 1061 (2005).

Where different

decision makers or supervisors are involved, their decisions are
rarely “similarly situated” in relevant ways for establishing a
prima facie case.

Thompson v. Exxon Mobil Corp., 344 F. Supp. 2d

971 (E.D. Tex. 2004), citing Radue v. Kimberly-Clark Corp., 219
F.3d 612, 618 (7th Cir. 2000) for the proposition that “[a]
demonstration of substantial similarity generally requires a
showing that a common supervisor was involved in the decision

parts damage amounting to $8,000); Little v.
Republic Refining Co., 924 F.2d 93, 97 (5th
Cir. 1991)(concluding that the plaintiff had
not shown “nearly identical” circumstances
because the employee outside the plaintiff’s
protected class who allegedly received more
favorable treatment did not have the same
supervisor); Smith v. Wal-Mart Stores (no.
471),
891
F.2d
1177,
1180
(5th
Cir.
1990)(determining that the plaintiff and the
employee outside her protected class who
allegedly received preferential treatment
were not similarly situated where the
employer discharged the plaintiff because the
plaintiff violated its non-fraternization
policy and the other employee’s conduct did
not involve the employer’s non-fraternization
policy). “[P]ut another way, the conduct [or
circumstances] at issue is not nearly
identical when the difference between the
plaintiff’s conduct [or circumstances] and
that of those alleged to be similarly
situated accounts for the difference in
treatment received from the employer.”
Wyvill v. United Cos. Life Ins. Co., 212 F.3d
296, 304-05 (5th Cir. 2000)(finding that the
“striking
differences”
between
the
plaintiff’s
and
purportedly
similarly
situated employee outside the plaintiffs’
protected class “more than account[ed] for
the different treatment they received.”).
-11-

making”).

See also Perez v. Texas Dep’t of Criminal Justice,

Inst’l Div., 395 F.3d 206, 213 (5th Cir. 2004)(“We . . . have
explained

consistently

situated

those

that

employees’

for

employees

circumstances,

to

be

similarly

including

their

misconduct, must have been ‘nearly identical.’”); Hockman v.
Westward Communications, LLC, 282 F. Supp. 2d 512, 527-28 (E.D.
Tex. 2003)(“The ‘nearly identical’ standard, when applied at the
McDonnell

Douglas

pretext

stage,

is

a

stringent

standard--

employees with different responsibilities, different supervisors,
different

capabilities,

different

work

rule

violations

or

different disciplinary records are not considered to be ‘nearly
identical.’”), citing Okoye v. Univ. of Tex. Houston Health
Science Center, 245 F.3d 507, 514 (5th Cir. 2001)(Employees are
not in nearly identical circumstances when their actions were
reviewed
treatment

by

different

supervisors;

a

plaintiff

must

show

“to
that

establish
the

disparate

employer

‘gave

preferential treatment to [] [another] employee under ‘nearly
identical’ circumstances’ . . .; that is “the misconduct for
which [plaintiff] was discharged was nearly identical to that
engaged in by . . . [other] employee[s].’”).
Nevertheless, in Lee v. Kansas City Southern Ry. Co.,
574 F.3d 253, 260-61 (5th Cir. 2009), a Fifth Circuit panel
opined,
We do not, however, interpret “nearly
identical” as synonymous with “identical.”
Applied to the broader circumstances of a
plaintiff’s employment and that of his
proffered comparator, a requirement of
complete or total identity rather than near
identity
would
be
essentially
-12-

insurmountable, as it would only be in the
rarest of circumstances that the situations
of two employees would be totally identical.
For example, it is sufficient that the
ultimate decisionmaker as to employees’
continued employment is the same individual,
even if the employees do not share an
immediate supervisor. Each employee’s track
record at the company need not comprise the
identical number of identical infractions,
albeit these records must be comparable. As
the Supreme Court has instructed, the
similitude of employee violations may turn
on the “comparable seriousness” of the
offense for which discipline is meted out
and not necessarily on how a company codes
an
infraction
under
its
rules
and
regulations. Otherwise, an employer could
avoid liability for discriminatory practices
simply by coding one employee’s violation
differently from another’s.
Quoted by Turner v. Kansas City Southern Ry. Co., 675 F.3d 887,
893 (5th Cir. 2012); Roberts v. Lubrizol Corp., 582 Fed. Appx.
455, 459 (5th Cir. Sept. 24, 2014).
If the plaintiff makes a prima facie case, there is a
presumption of discrimination, and the burden of production then
shifts

to

the

employer

to

provide

a

legitimate,

non-

discriminatory reason for the adverse employment action. Chevron
Phillips, 570 F.3d at 615.
If the employer meets this burden, the presumption of
discrimination disappears and the plaintiff bears the ultimate
burden of persuading the trier of fact by a preponderance of the
evidence that the defendant intentionally discriminated against
the plaintiff because of her protected status.

Wallace v.

Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001).

To do

so, the plaintiff must produce substantial evidence showing that

-13-

the proffered legitimate nondiscriminatory reason is a pretext
for discrimination.

Reeves, 530 U.S. at 143. “Evidence is

‘substantial’

is

if

it

‘of

such

quality

and

weight

that

reasonable and fair-minded men in the exercise of impartial
judgment might reach different conclusions.”

Laxton v. Gap,

Inc., 333 F.3d 572, 579 (5th Cir. 2004). Plaintiff may use either
of two methods to rebut each of the nondiscriminatory reasons
articulated by the employer: pretext or mixed motive.

Rachid v.

Jack in The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).
For

pretext,

the

plaintiff

explanation

is

must

or

that

the

defendant’s

proffered

credence.”

Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir.

2004), citing Wallace, 271 F.3d at 221.

false

show

“unworthy

of

One way is to show that

the employer treated plaintiff more harshly that other “similar
situated

employees”

for

“nearly

identical

disparate treatment theory using comparators.

conduct,”

i.e,

a

Wallace, 271 F.3d

at 221; Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir.
2009).

Although

the

presumption

of

discrimination

has

disappeared, the trier of fact may consider evidence establishing
the plaintiff’s prima facie case and inferences drawn therefrom
in determining whether the employer’s explanation is pretextual.
Reeves, 530 U.S. at 143.

Coupled with the Plaintiff’s prima

facie case, for purposes of summary judgment the evidence of
pretext usually will constitute sufficient evidence to raise an
issue of material fact as to whether the employer’s reason is
credible or merely a pretext for discrimination or, if its reason
is true, that a discriminatory reason more likely motivated the
-14-

decision to effect its adverse employment action.
U.S. at 143, 147-49.5
may be required.

Reeves, 530

Sometimes, however, additional evidence

Id.

“[T]he factfinder’s rejection of the

employer’s legitimate, nondiscriminatory reason for its action
does

not

compel

judgment

for

the

plaintiff.

The

ultimate

question is whether the employer intentionally discriminated, and
proof that ‘the employer’s proffered reason is unpersuasive, or
even obviously contrived, does not necessarily establish that the
plaintiff’s proffered reason is correct.’

In other words, ‘[i]t

is not enough . . . to disbelieve the employer; the fact finder
must

believe

the

discrimination.’”

plaintiff’s

explanation

of

intentional

Id. at 146-47 (emphasis in original), citing

St. Mary’s Honor Center, 509 U.S. at 511, 524, 519.

“Whether

judgment as a matter of law is appropriate in any particular case
will depend on a number of factors.

Those include the strength

of the plaintiff’s prima facie case, the probative value of the
proof that the employer’s explanation is false and any other
evidence that supports the employer’s case and that properly may
be considered on a motion for judgment as a matter of law.”

Id.

at 148-49.
Alternatively,

rather

than

demonstrating

that

the

defendant’s articulated reason for its action is a pretext for
discrimination, the plaintiff may show that the defendant’s
reason for the decision, while true, is only one reason for its
5

In Reeves, the Supreme Court found that the Fifth
Circuit panel “erred in proceeding from the premise that a
plaintiff must always introduce additional, independent evidence
of discrimination.” Reeves, 530 U.S. at 149.
-15-

conduct and another motivating factor is plaintiff’s protected
characteristic.6

Rachid v. Jack in the Box, Inc., 376 F.3d 305,

312 (5th Cir. 2004); Pinkerton v. U.S. Dept. of Educ., 508 F.3d
207, 213 (5th Cir. 2007).
The analysis for a race discrimination claim under the
TCHRA is generally the same as that under Title VII.

Mission

Consol. Indep. Sch. Dist. v. Garcia, 372 S.W. 3d 629, 633-34
(Tex. 2012)(“Section 21.051 is effectively identical to its
federal equivalent. . . Because one of the purposes of the TCHRA
is to ‘provide for execution of the policies of Title VII of the
Civil Rights Act of 1964,’ we have consistently held that those
analogous federal statutes and the cases interpreting them guide
our reading of the TCHRA.”).7 The Texas Commission on Human
Rights Act ("TCHRA"), § 21.051 of the Texas Labor Code provides
in relevant part, "An employer commits an unlawful employment
practice if because of race, color, disability, religion, sex,
national

origin

or

age

the

employer

.

.

.

discharges

an

6

The Fifth Circuit calls this the “modified McDonnell
Douglas” approach. Rachid, 376 F.3d at 312.
7

In enacting the TCHRA, the Texas Legislature intended
to correlate "state law with federal law in the area of
discrimination in employment." Gold v. Exxon Corp., 960 S.W.2d
378, 380 (Tex. App.--Houston [14th Dist.] 1998, no writ). Thus
the same burden-shifting framework used to analyze a case under
the federal discrimination statutes applies under the Texas
statute.
Id.
The case law developed under Title VII governs
claims under the TCHRA. Texas Dep't of Human Services v. Hinds,
904 S.W.2d 629, 636 (Tex. 1995). TCHRA's express purpose is "the
execution of the policies embodied in Title VII." Schroeder v.
Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991); Texas
Labor Code Ann. § 21.001(1). Therefore courts interpret the TCHRA
to be consistent with federal law. Leatherwood v. Houston Post
Co., 59 F.3d 533, 536 n.5 (5th Cir. 1995); Specialty Retailers,
Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996).
-16-

individual, or discriminates in any other manner against an
individual

in

connection

with

compensation

or

the

conditions, or privileges of employment . . . ."

terms,

The TCHRA

applies only to “ultimate employment decisions”, i.e., decisions
involving hiring, granting leave, discharging, promoting, and
compensating employees.

Anderson v. Houston Community College

System, 458 S.W. 3d 633, 644 (Tex. App.--Houston [1st Dist.]
2015).

Under the TCHRA Mitchell need only prove that race was

a “motivating factor for the employment decision.

Tex. Labor

Code § 21.125(a).
First Amended Complaint’s Allegations (#7)
Mitchell, an African American and a veteran of the
United States Armed Forces, was hired by Defendant Energy on
February 7, 2012 to work in Houston, Texas as one of five new
Pipeline

Controllers,

a

highly

regulated,

safety-sensitive

position which Defendant explains in Mitchell’s case involved
monitoring

pipeline

products

moving

through

pipelines

in

Louisiana, New Mexico, and Texas and required special training
and qualification.
Mitchell claims that on or about January 7, 2014 he
was fired for events that occurred during his employment.

In

July 2013 on a day he was not scheduled to work, Mitchell,
wearing shorts and sunglasses, attended a team meeting at
Defendant’s offices. A white Pipeline Controller (with the same
job classification as Mitchell), subsequently identified as
Charles Bozeman (“Bozeman”), also not on duty that day, like
Mitchell came to the meeting in shorts.
-17-

Defendant reprimanded

both Pipeline Controllers orally and indicated it would issue
a written reprimand shortly. Before the issuance of the written
write-up, Mitchell went on a scheduled FMLA leave for treatment
of a disabling condition in both his knees that arose during his
military service.

When Mitchell returned from FMLA leave,

Defendant gave him a written reprimand not only for wearing
shorts and sun glasses to the meeting, but for several other
alleged incidents of poor job performance by Mitchell that had
occurred before Mitchell took FMLA leave.
of

these

additional

incidents

in

the

When he complained
write-up,

Defendant

terminated him under the pretext that he had not signed his
write-up form, but, according to Mitchell, actually based on
discriminatory
behavior,

motives

intentional

supervisors

and

because
acts

co-worker

of

and

Mitchell’s

omissions

lead

race.

of

directly

“The

[Mitchell’s]

to

Plaintiff’s

discharge, as they intended, and were the direct and proximate
cause of his legal injuries . . . .”

#7 at ¶ 9.

He claims that

“Defendant unequally enforced its disciplinary policies and
procedures on the basis of race/ethnicity/color. White American
employees were treated leniently for serious work infractions,
while Plaintiff was terminated for a minor work infraction.”
Id. at ¶ 11.
For

example,

Bozeman’s

write-up

did

not

include

matters of poor performance other than wearing sunglasses and
shorts to the meeting, and he was not terminated even though he
refused to sign his write-up form.

-18-

Other examples of discrimination in his workplace
included a white employee of the same job classification as
Mitchell who brought a firearm into the workplaces and was not
reprimanded until months later when he complained about his
compensation and another white employee who failed to come to
work without providing an excuse to Defendant, but who was not
terminated when he returned.
Energy’s Motion for Summary Judgment (#17)
With a very different version of what took place,
Energy’s motion for summary judgment asserts that shortly after
receiving the written disciplinary action, Mitchell took more
than four months of medical leave, several weeks more than his
available FMLA leave.

Energy claims that during Mitchell’s

absence, his department “changed significantly,” resulting in
Mitchell having to re-train and re-qualify for his job upon his
return.

Energy maintains that Mitchell refused to sign a

document, titled “Corrective Action Form,” presented to him
describing the re-training, disputing both the length of the retraining and the need for him to re-qualify.

Although Mitchell

was informed that the retraining program and the document
describing it were not disciplinary, but were necessary because
of changes in the equipment he operated, Mitchell still refused
to sign and acknowledge that he would re-train and re-qualify.
Instead he ripped the document up and gave the pieces to his
supervisor and never reported to work again. According to Human
Resources Senior Manager Carrie Fowler’s deposition testimony,
after objecting to signing the form, Mitchell “made the decision
-19-

to leave” and voluntarily resigned.

Ex. C, 82:5-13.

Energy

insists that there is no evidence of race discrimination and
that Energy is entitled to summary judgment as a matter of law.
In greater detail, Energy explains that Mitchell
worked in the Liquids Pipeline Control Center, which is “a
central hub of controls which directed ‘hundreds of thousands
of miles of pipeline and numerous facilities such as valves,
pump stations, [and] storage fields . . . spread across a large
geographical area.’”8

The special training and certification

known as “Operator Qualification” (“OQ”) are required before a
Pipeline Controller can operate pipeline assets.

Federal law,

49 C.F.R. § 195.505(b) and (e), requires that covered pipeline
companies must “ensure through evaluation that individuals
performing

covered

tasks

are

qualified”

and

“evaluate

an

individual if the operator [company] has reason to believe that
the individual is no longer qualified to perform a covered
task.”

Mitchell

finished

his

initial

qualification9 on the pipeline assets in 2012.10

training

and

Mitchell’s job

8

Christopher Love, Manger of Pipeline Control, was
Mitchell’s supervisor. Love Dep., Ex. B, 18:10-13; 24:3-21.
9

The training and certification, dubbed “Operator
Qualification,” is required before any Pipeline Controller can
operate pipeline assets.
Love Dep. at 43:9-14; 49 C.F.R. §
195.505 (Pipeline company must “ensure through evaluation the
individuals performing covered tasks are qualified” and “evaluate
an individual if the operator [company] has reason to believe that
the individual is no longer qualified to perform a covered task.”
Mitchell completed training and qualification on the pipeline
assets in 2012.
Love Dep. at 44:1-7, 44:12-17.
See also 49
U.S.C. § 60102.
10

Love Dep. at 44:1-7, 44:12-17.
-20-

duties

included

(1)

monitoring

various

pipelines

for

temperature, pressure, product flow rates, etc.; (2) using the
company’s

computers

to

operate

pumps,

valves,

and

other

facilities to commence or change the flow of liquids into
various pipelines, fractionation plants, and storage wells; and
(3) closely watching various pipelines, storage tanks, and other
equipment for leaks or other damage and to communicate with
other operators to ensure safe operation within standards and
regulations administered by the Pipeline and Hazardous Materials
Safety Administration (“PHMSA”).11
Love12 was Mitchell’s direct supervisor, and Steve
Chambers

(“Chambers”)

was

Love’s

immediate

supervisor

and

Director of Pipeline Control. Love and Chambers hired Mitchell.
Ex. A, Freddie Mitchell Dep. at 63:14-23; Ex. B, Christopher
Love Dep. at 20:11-23.

Mitchell had no prior experience as a

Pipeline Controller.13
On July 19, 2013, according to Energy, Mitchell took
part in a team meeting at Defendant’s offices on a day on which
Mitchell claims he was not scheduled to work.

Mitchell parked

in the wrong parking lot despite earlier warnings not to, worked
in the Control Room with lights off although he was not supposed
to, and wore inappropriate attire (shorts and sunglasses) to the

11

Love Decl., #17-4, Ex. D, ¶ 3.

12

According to Love’s Decl., Love is Senior Manager
Commercial Operations for Energy and Manager of Pipeline Control.
13

Mitchell Dep. at 91:1-6.
-21-

team meeting, all of which Mitchell concedes.14 Another Pipeline
Controller, Bozeman, who was not on duty and who is Caucasian,
also attended the meeting wearing shorts.

Mitchell claims that

both men were verbally reprimanded and a written report was
prepared for each regarding their dress. Energy states that the
written disciplinary warnings highlighted several instances of
unprofessional and problematic workplace conduct.
On July 19, 2013, after a number of incidents that
caused

Energy

concern

about

Mitchell’s

performance

and

professionalism on the job, Love issued a written disciplinary
warning to Mitchell identifying those problems as Mitchell’s
failure to adjust a valve properly, causing a flare of gas in the
pipeline, excessive and unscheduled absences, playing games on
his cell phone on the job, missing a critical communication for
a customer on the same day that he was verbally counseled for
playing cell phone games,15 attending a meeting in shorts and
sunglasses, parking in the wrong parking lot despite warnings,
and working in the Control Room with lights off.

Bozeman

received a written warning on the same day, disciplining him for
working with the lights off in the Control Room, violating the
dress code at the meeting, and parking in the wrong lot.16

He was

14

Mitchell Dep., Ex. 6 at 102:9-17, 108:6-10, 119:24120:4, 126:7-137:12, 130:7-131:19,
15

These incidents of misconduct are documented in a
written warning issued by Love. Mitchell Dep., Ex. E (July 19,
2013 Corrective Action Form, 115:13-24, 118:11-14).
16

Ex. 7 (July 19, 2013 Bozeman Corrective Action Form),
136:22-137:9, 137:20-138:17.
-22-

not disciplined for excessive absences because, as Mitchell
stated, Bozeman “didn’t have attendance issues”17; nor was he
reprimanded for playing cell phone games because according to
Mitchell, “he didn’t do it” and “he wasn’t on his phone.”18
did Bozeman wear sunglasses.19

Nor

After Love discussed the written

warnings with both men, Mitchell signed his Corrective Action
Form, and Bozeman did not sign his.20
Mitchell

went on medical leave on August 16, 2013 and

did not return until January 6, 2014.21
under

the

FMLA

and

disability program.22

paid

him

leave

the

company’s

short-term

After twelve weeks, Mitchell’s FMLA leave

expired on November 8, 2012.23
unprotected

for

Energy gave him time off

for

eight

Nevertheless he remained out on
additional

approval, a short-term medical leave.

weeks

with

Energy’s

Although he was expected

to return on January 2, 2014, Mitchell called Love on that day
and said he would not be in because of child care needs, but
would return on January 6, 2014.24

When he returned on the 6th,

he brought a note from his physician stating that his late return
17
18
19
20
21
22

Id. at 175:8-15.
Love Dep. 46:18-47:5.
Love Dep. 45:16-21; 78:25-79:4.
Mitchell Dep., Ex. 6; Ex. 7, 134:1-3.
Id. at 140:6-25; 147:6-12.
Mitchell Dep., 141:1-6; 140:6-25; 144:11-23.

23

Id., 179:10-20; 146:6-3; see also Dep. of Carrie
Fowler, Ex. C, 58:1-5; 72:8-21.
24

Mitchell Dep., 147:6-12; 148:2-25; 145:11-16.
-23-

was medically necessary, although Mitchell now concedes that the
extra time was completely unrelated to his knee procedure.25
Mitchell was the only Pipeline Controller to take such
a long leave of absence; one other employee, Steven Summers, took
a three-week leave.26

In Mitchell’s absence, especially the

longer it continued, several pipelines and station locations were
re-programmed, a new connector was installed, and systems were
integrated.27

Concerned that Mitchell would not know how to

perform his job duties with the changes and that Mitchell’s
previous performance problems would continue, especially since
Mitchell took leave before demonstrating improvements in his
performance, Love consulted with Human Resources Senior Manager,
Carrie Fowler how to proceed.28 Love and Steve Chambers, Director
of Pipeline Control, with Fowler, developed a policy requiring
re-training

and

re-qualification

of

any

Pipeline

Controller

returning from a leave longer than six months and planned that it
would apply to Mitchell on his return.29

25
26
27
28

Love called Mitchell to

Id. at 148:2-25; 145:11-16.
Love Dep. 114:16-115:14; Mitchell Dep., Ex. 9.
Fowler Dep., 78:13-79:9; Mitchell Dep., Ex. 9.
Love Decl. Ex. 9, ¶ 9.

29

Love Decl. ¶¶ 7-9; Fowler Dep. at 75:3-10; Mitchell
Dep. Ex. 9; Love Dep. 112:11-20, 113:14-23. Prior to 10/22/12
there was no written policy or procedure in place that required an
operator coming from leave to be re-trained and/or re-qualified.
Fowler Dep., Ex. C at 74:17-75:1; 81:1-20. Love, Chambers, and
Fowler required Mitchell to sign the document to acknowledge the
new policy requirement and to reinforce the expectation that the
concerns be corrected. Love Dep. 131:12-20, 118:25-119:22; Fowler
Dep. 44:14-45:7, 78:13-79:9, 85:10-14; Mitchell Dep. 149:11-21.
-24-

tell him that he would need to re-train because of the changes,
but also that Love did not agree with the requirement to requalify.30

During his deposition, Mitchell stated that in his

“experience” he did not believe the requirement was an “industry
standard,” but admitted that he had no prior experience as a
Pipeline Controller with any other company.31
When

he was presented with the Corrective Action form

on his return to work on January 6, 2014, Mitchell saw it as
restarting his prior discipline or “starting a new corrective
action” and as a “form of trickery.”32
The next day Mitchell spoke to Fowler, who told him he
could write any concerns on the form, but that he was required to
acknowledge that it was discussed with him, that his signature
was required because he would be re-training and re-qualifying,
and that if he chose not to sign it, he would no longer be an
employee.
168:19,

Fowler Dep. 83:7-10, 85:10-14; Mitchell Dep. 167:16169:3-10.

Mitchell

decided

against

signing

“on

principle,” returned the form, ripped in half and folded a number
of times, to Love on January 7, 2014, left the workplace, and did
not return.

Mitchell Dep. 169:3-10, 172:9-20.

30

Mitchell Dep. 149:11-21. 151:22-152:10, 152:11-22,
153:17-155:3.
31
32

Mitchell Dep., 155:20-156:5; 157:8-21.
Id., 160:21-161:13, 163:19-164:6.
-25-

Mitchell never complained to anyone at Energy that he
believed he was being treated unfairly due to his race or because
he took an FMLA leave of absence.33
Since

Mitchell

has

no

direct

evidence

of

racial

discrimination, the McDonnell Douglas burden shifting framework
applies to his claim. Energy insists that Mitchell has failed to
and cannot present a prima facie case of race discrimination
because he has no evidence that he suffered an adverse employment
action or that he was treated less favorably than any similarly
situated employee outside his protected class.
action

that

‘does

not

affect

job

duties,

“[A]n employment
compensation,

benefits’ is not an adverse employment action.”

or

Pegram v.

Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004), quoting Banks
v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir.
2003).

Disciplinary

actions.

Carthon v. Johnson Controls, Inc., No. 03-31106,

Fed.

Appx.

993,

curiam)(“receiving

write-ups

(5th

997
formal

are

not

Cir.

discipline”

adverse

June
is

21,

not

an

employment
100

2004)(per
“ultimate

employment decision”). Energy insists that Mitchell’s employment
was

not

terminated

and

that

Mitchell

has

not

produced

any

evidence that his employment would have ended even if he had
signed the agreement to complete re-qualification. Although this
was the first time they required a Controller to re-train and requalify following an absence, Chambers and Love agreed that “any
Liquids Controller missing 6 weeks or more of Control Center time

33

Mitchell Dep. 96:5-11,
-26-

will need to be retrained and re-OQ’d.34”

Ex. 9 to Mitchell’s

Dep., #17-1, 113:14-23. Fowler Dep. 74:17-75:2 (prior to October
2013,

no

policy

qualification).

in

place

Mitchell

required

concedes

re-training

that

he

or

understood

rehis

continued employment was conditioned on his signing the form,
which he chose not to do.35

The requirement that Mitchell sign

the form upon his return to work does not amount to an adverse
employment action even if the form included a reminder of his
earlier

performance

deficiencies.

Kinsey

v.

City

of

Jacksonville, No. 3:01 CV 785 J 32MCR, 2005 WL 3307211, *7 (M.D.
Fla. Dec. 6, 2005), aff’d, 189 Fed. Appx. 860 (11th Cir. July 3,
2006)(requiring plaintiff’s signature to acknowledge receipt of
reprimand form not an adverse action under Title VII).
has

not

identified

any

tangible,

negative

impact

Mitchell
on

his

employment related to the form Defendant required him to sign.
He has admitted that both Love and Fowler told him the form was
not disciplinary, but he chose not to believe them.36 He was also
told a number of times that his signature was merely to show that
he received and understood the re-training and re-qualification
requirement.37

See Cochise v. Salazar, 601 F. Supp. 2d 196, 201

(D.D.C. Mar. 7, 2009), aff’d, 377 Fed. Appx. 29 (D.C. Cir. May
24, 2010)(“Neither letters of counseling that contain job-related

34
35
36
37

“OQ” stands for Operator Qualification.
Mitchell Dep., 169:3-10
Mitchell Dep. 162:8-13, 163:19-164:6.
Love Dep. 127:7-22, 136:3-15; Fowler Dep. 83:7-10.
-27-

constructive criticism . . . nor warnings without attendant
effects on employment . . . are materially adverse employment
actions.”).

Even though Mitchell’s case was the first time

Energy chose to require a signature on a Corrective Action Form,38
the record shows that he was repeatedly told there would be no
negative

consequences

for

signing

the

form,

but

that

his

signature was merely an acknowledgment that he received the retraining and re-qualification information; that he personally
objected to such requirement and did not believe his supervisors’
assurances does not create a genuine issue of material fact.
Baird v. Gotbaum, 744 F. Supp. 2d 279, 291 (D.D.C. 2010)(even
though requirement for signature on policy acknowledgment was
“unprecedented” and led plaintiff to believe she was being
“singled out,” requirement was not an adverse action)(citing
Kinsey for rule that requiring signature to acknowledge receipt
is not an adverse action), aff’d in part and vacated on other
grounds in part, 662 F.3d 1246 (D.C. Cir. 2011), remanding
hostile work environment claim, 888 F. Supp.2d 63 (D.D.C. 2012),
aff’g dismissal of hostile work environment claim, 792 F.3d 166
(D.C. Cir. 2015).
Furthermore

Mitchell’s

claim

that

he

was

unfairly

disciplined is not sufficient to constitute an employment action.
se DeHart v. Baker Hughes Oilfield Operations, Inc., 214 Fed.
Appx. 437, 442, No. 05-21087, 2007 WL 126081 at *3 (5th Cir. Jan.
38

Love explained that he used the company’s Corrective
Action Form template for Mitchell’s signature because it was the
“only template provided for documented communications with an
employee.” Love Dep., 132:4-10.
-28-

19, 2007)(written warning to employee for insubordination, being
argumentative, and excessive absenteeism was insufficient to
dissuade a reasonable employee from making or supporting a charge
of discrimination); Hernandez v. Johnson, 514 Fed. Cir. 492, 499,
No. 12-50338, 2013 WL 657697 at *6 (5th Cir. Feb. 22, 2013)(letter
of counseling and record of infractions without evidence of
pretext did not constitute materially adverse employment action
under

Burlington

Northern

to

support

employee’s

retaliatory employment discrimination claim).

Title

VII

Although Mitchell

was coached and instructed by his supervisors, these ordinary
employment actions did not cause any negative consequences for
his status as an employee, and therefore Mitchell cannot assert
that

his

supervisor’s

warnings

affected

his

job

duties,

compensation, or benefits.
Mitchell also cannot argue that he was constructively
discharged, i.e., that his working conditions were so intolerable
that any reasonable employee would feel compelled to resign.
Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir. 1997).
“‘An employee’s obligation of reasonableness requires that [he]
not jump to conclusions and assume the worst.’”

Thompson v.

Naphcare, Inc., 117 Fed. Appx. 317, 324 (5th Cir. Nov. 11,
2004)(“Whether a reasonable employee would feel compelled to
resign depends on the circumstances with special consideration,
inter alia, of seven non-exclusive factors:

(1) demotion; (2)

reduction in salary; (3) reduction in job responsibilities; (4)
reassignment to menial or degrading work; (5) reassignment to
work under a younger supervisor; (6) badgering, harassment, or
-29-

humiliation

by

the

employer

circulated

to

encourage

the

employee’s resignation; and (7) offers of continued employment on
terms less favorable than the employee’s former status.”), citing
Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 310 (5th Cir.
1987).

The record shows that Mitchell jumped to the conclusion

that he was constructively discharged.
Energy further points out that it is entitled to the
“same actor” inference because the same actor who hired Mitchell,
i.e., Love, later discharged him, allegedly because of racial
animus.

“The same actor inference creates a presumption that

animus was not present where the same actor responsible for the
adverse employment action either hired or promoted the employee
at issue.”

Spears v. Patterson UTI Drilling Co., 337 Fed Appx.

416, 421-22 (5th Cir. July 16, 2009); Brown v. CSC Logic, Inc.,
82 F.3d 651, 658 (5th Cir. 1996)(the “same actor doctrine” reasons
that “from the standpoint of the putative discriminator, it
hardly makes sense to hire workers from a group one dislikes . .
. only to fire them once they are on the job”); Howard v. UPS,
Inc., No. 3:09-CV-2074-K, 2011 WL 195682, at *6-7 (N.D. Tex. Jan.
18, 2011)(same-actor inference applies to both retaliation and
discrimination claims); Raggio v. Parkland Memorial Hospital,
Civ. A. No. 3-95-CV-0680-R, 1997 WL 135662, at *5 (N.D. Tex.
March 12, 1997)(where same-actor inference applies, plaintiff
must

submit

substantial

evidence

of

‘sufficiently

egregious

facts’ to overcome the inference that Defendants’ stated reason
for discharging plaintiff was not pretext for discrimination”).
Energy maintains that Mitchell has not presented any evidence, no
-30-

less “sufficiently egregious” evidence, to suggest that Love, who
hired Mitchell, suddenly developed a racial bias against him;
Nor can Mitchell produce evidence that he suffered an adverse
employment action. Thus he cannot meet this element of his prima
facie case.
Nor

has

Mitchell

demonstrated

that

any

similarly

situated employee outside his protected class was treated more
favorably. A similarly situated employee must hold the same job,
title, and duties, under the same supervisor, commit the same
infractions, and not be discharged.

Mack v. John L. Wortham &

Son, 541 Fed. Appx. 348, 359 (5th Cir. Sept. 5, 2013), citing
Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir.
1995); Okoye v. Univ. of Texas Houston Health Science Center, 245
F.3d 507, 514 (5th Cir. 2001)(where other employees’ violations
differed from and were less serious than those committed by the
plaintiff,

the

plaintiff

failed

to

establish

disparate

treatment).
Energy argues that Mitchell has not raised any genuine
issues of material fact to show he was similarly situated to
Bozeman. The parties agree that Bozeman refused to sign his July
2013 corrective action notice and was sill permitted to continue
his employment at Energy.

Nevertheless Bozeman’s corrective

action notice did not involve a re-training or re-qualifying
requirement, which was the only reason why Mitchell was required
to sign his January 2014 form.39

Bozeman did not commit the same

39

Mitchell Dep. 174:16-19 (agreeing that the corrective
action Bozeman refused to sign did not require that he re-train or
-31-

infractions as Mitchell because he did not refuse to sign a retraining and re-qualification requirement.

Mack, 541 Fed. Appx.

at 360 (affirming grant of summary judgment to employer where
employee “failed to present evidence that other employees were
similarly insubordinate”);

Lee v. Kansas City S. Ry. Co., 574

F.3d 252, 259 (5th Cir. 2009)(“[W]e require that an employee who
proffers a fellow employee as a comparator demonstrate that the
employment actions at issue were taken under nearly identical
circumstances.”).
Nor

has

Mitchell

shown

that

Steven

Summers,

the

coworker who purportedly brought a weapon to work and was not
punished, was similarly situated to Mitchell, who never brought
a weapon to work.

Mitchell Dep. 200:2-3, 201:20-23.

Even if Mitchell could demonstrate a prima facie case,
Energy has provided a legitimate, nondiscriminatory reason for
his alleged termination, i.e., that he refused to sign the form
acknowledging the necessary re-training and re-qualification for
his position. Federal law required Energy to “evaluate [Mitchell
if it] had reason to believe that [Mitchell was] no longer
qualified to perform a covered task.”

49 C.F.R. § 195.505.

Love, Chambers, and Fowler agreed that re-qualification would be

re-qualify). See also Love Dep. 131:12-20 (Mitchell required to
sign because the form included an expectation that he re-train and
re-qualify), 136:3-15 (verbal commitment was insufficient to agree
to re-train).
Fowler Dep. 44:14-45:7 (discussed with Love,
Chambers and legal counsel and determined that because of the retraining requirement, Mitchell should be required to acknowledge
the form), 78:13-79:9 (purpose of the form was for Mitchell to
acknowledge his need for re-training and re-qualifying), 85:10-14
(requirement to sign the form was based on the fact that Mitchell
was going to need to re-train and re-qualify).
-32-

necessary and that a signature would be required because Energy
needed to record that Mitchell received the re-training and requalification requirement. Thus the burden of persuasion shifted
to Mitchell to demonstrate that Energy’s stated reason for his
discharge was false and pretextual and that Energy was motivated
by discrimination.
Energy contends that Mitchell fails to satisfy that
burden.

As discussed, the record reflects agreement by Love,

Chambers, and Fowler that a written document was required to
establish that Mitchell actually received the form describing the
re-training and re-qualification requirements. Love additionally
wanted to reiterate in writing the performance concerns of Energy
that Mitchell had not yet addressed.

Although Mitchell may

disagree with the decision, he has not presented any evidence
demonstrating that the rationale behind the requirement was not
genuine.

Mayberry v. Vought Aircraft, 55 F.3d 1086, 1091 (5th

Cir. 1995)(“The question is not whether an employer made an
erroneous decision; it is whether the decision was made with a
discriminatory

motive.

Even

an

incorrect

belief

that

an

employee’s performance is inadequate constitutes a legitimate,
nondiscriminatory reason.”); Deines v. Texas Dept. of Protective
and

Regulatory

Servs.,

164

F.3d

277,

281

(5th

Cir.

1991)(“[D]iscrimination laws [are not] vehicles for judicial
second-guessing of business decisions.”).
Mitchell has not provided any evidence that Energy was
motivated by racial discrimination when it required Mitchell’s
signature or re-training and re-qualification.
-33-

The new policy,

supported

by

49

C.F.R.

§

195.505,

was

developed

with

the

intention that it would apply to any Liquids Controller in a
similar situation, missing six weeks or more of work.
has not shown that this rationale is pretextual.

Mitchell
Given the

undisputed facts here, Energy was reasonable in presuming that
Mitchell chose to end his employment with Energy rather than
complete

the

re-qualification

requirement

with

which

he

disagreed.
Mitchell’s Opposition (#19)
After carefully reviewing Mitchell’s opposition and
Energy’s reply (#21), in addition to Energy’s motion, the Court
finds that while Mitchell has raised genuine issues of material
fact for trial regarding whether Bozeman was similarly situated
to Mitchell, whether Mitchell was treated differently from the
way Energy treated Bozeman, whether Energy’s officers created an
ex post facto policy and applied it only to Mitchell when he
allegedly violated its rules, and whether he was fired for
objecting to and refusing to comply with that ex post facto
policy. Nevertheless, Mitchell has failed to prove a key element
of his cause of action, i.e., that the alleged discriminatory
treatment of him was based on his race.
Mitchell makes a sufficient case that he and Bozeman
were “similarly situated” to raise
fact for a jury.

genuine issue of material

Mitchell was hired by Energy as a Pipeline

Controller in February 2012, with Bozeman hired shortly after
with the same title.
2,

37:8-2

(“My

#19-5, ¶4, Mitchell Affid.; Love Dep. #19-

recollection

is
-34-

that

Mr.

Bozeman

was

hired

multiple months after Mr. Mitchell.

Mr. Mitchell, as I recall,

was hired in February of 2012, and my recollection is that Mr.
Bozeman was hired some months after that point in time.”).
Mitchell’s affidavit states, “Charles and I were paired together
and worked as partners for Energy Transfer.

We had the same job

duties, responsibilities, worked for the same shifts and both
worked in the Liquid Pipeline Control Center . . . at the same
times on the same days.”

Id. at ¶ 5. In completely denying

Energy’s objections to and motion to strike Plaintiff’s evidence
(#20), United States Magistrate Judge Frances Stacy noted, “Such
a work pairing and/or working relationship provides a reasonable
and sufficient basis for Plaintiff to have personal knowledge of
Bozeman’s

schedule,

work

duties/responsibilities,

and

his

response to disciplinary infractions asserted by Defendant.” #24
at ¶ 1.

Both Controllers were supervised by Christopher Love,

who, in turn, was supervised by Steven Chambers.

#19-5, ¶ 6.

On

July 18, 2012, both Controllers had the day off and appeared at
the team meeting in inappropriate attire, with Mitchell wearing
shorts and sunglasses and Bozeman wearing shorts, and both were
issued Corrective Action Forms by Love for behaviors allegedly
violating company dress policy.

Id. ¶¶ 8-11.

#19-6, Mitchell’s

July 19, 2013 Corrective Action Form; #19-7, Bozeman’s July 19,
2013 Corrective Action Form. Both Forms addressed not only their
inappropriate attire at the July 18, 2013 meeting during working
hours, but other instances of identical misconduct on the same
dates and at the same times:

both were criticized for parking in

the “711 Louisiana underground garage in violation of a policy
-35-

that had been communicated to the Pipeline Control Group multiple
times via e-mail” on May 10, 2013; and on July 9 and 10, 2013 the
two “operated in the Control Center with the lights turned off on
the Liquids side of the room, a violation of Energy Transfer’s
Control Room Management Plan.”40

In addition to these examples

of identical mutual misbehavior, Mitchell’s Form targeted his
playing a game on his personal cell phone for over twenty minutes
on July 11, 2013, his excessive absences, his failure to follow
established

procedures

in

requesting

time

off

and

timecard

completion, and, vaguely, “issues where mistakes were made or
critical

issues

were

overlooked.”

#19-6.

Bozeman’s

Form

addressed “the frequency and duration of breaks that he was
taking from the Control Center, leaving the building by vehicle
for food while on shift, and “openly and defiantly questioning
the instruction” regarding the Control Center lights turned off
“in the presence of other Controllers.”

#19-7.

In addition,

Love’s notes, included in his supervisory file, #19-8, 7/11/13
entry, state that Mitchell and Bozeman “missed the fact that
communications were out to [the Conoco Phillips Sweeney Facility]
and failed to flow balance the line hourly for leak detection
from 3:05 a.m. through 8:10 a.m.”

As noted, “Applied to the

broader circumstances of a plaintiff’s employment and that of his
proffered comparator, a requirement of complete or total identity
rather than near identity would be essentially insurmountable, as
it

would

only

be

in

the

rarest

40

of

circumstances

that

the

The quotations are from Mitchell’s Form, but the same
examples are found in Bozeman’s.
-36-

situations of two employees would be totally identical. . . .
Each employee’s track record at the company need not comprise the
identical number of identical infractions, albeit these records
must be comparable.”

Lee, 574 F.3d at 261.

Mitchell has

asserted sufficient instances to raise a fact issue regarding
whether he and Bozeman are similarly situated.
To
highlights

support

his

Defendant’s

claim

different

of

discrimination,

treatments

Bozeman for nearly identical misconduct.
were

criticized

for

inappropriate

of

Mitchell

Mitchell

and

While both Controllers

attire,

Mitchell’s

Form

included “the inflammatory personal commentary” that Mitchell’s
dress should be construed as “showing a lack of respect and
compliance towards established policies.”

#19-6.

Yet despite

Love’s criticism of Bozeman’s “openly and defiantly questioning”
the instruction regarding the lights in the presence of other
Controllers, Love merely stated that Bozeman should “be more
cooperative.”

#19-7.

Furthermore

Mitchell signed his July 19,

2013 Corrective Action41 Form (#19-6), while in contrast Bozeman
did not, because Bozeman “does not agree with the issue of the
lights in the Control Center or with the issue of wearing shorts
to the team meeting,” according to a note by Love on the
document. #19-7. Yet while Mitchell was subsequently terminated
for his refusal six months later to sign his second Corrective
Action Form of January 6, 2014 (#19-11), based on the same events
41

In his affidavit Mitchell averred, “It was not fair
for me to be disciplined twice for the same conduct. So I refused
to sign the Corrective Action Form with the disciplinary language
written into it.” #19-5 ¶ 21.
-37-

and circumstance underlying his July 19, 2013 Form which he had
signed, Bozeman was not terminated for his refusal to sign, but
allowed to continue working for Energy and was promoted within
the organization. #19-5 ¶¶ 14-16, 32. When Mitchell objected to
signing the second Form dated January 6, 2014 (#19-11) based on
the same events as his previous Form, he was told he would be
terminated if he did not do so:

“sign the corrective action form

or you will be terminated.”

#19-10, CD of Audio Recordings

January

7-8,

voluntarily

2014.

Although

resigned,

communications

among

Energy

Energy’s
its

claims

internal

employees

that

Mitchell

documents

involved

include

in

Mitchell’s

termination, expressly using the term “termination.”

#19-11, e-

mails authored by Energy employees, Jan. 8-9, 2014.

Moreover,

Fowler told Mitchell that she and Chambers were forcing him to
sign because of a company policy; when he asked to see a copy,
none was provided and he subsequently learned that no such policy
existed at the time.

#19-5 ¶¶ 33-34; Fowler Dep., #19-14, 4:13-

19 (stating that there was no written policy requiring employees
to sign corrective action forms before July 2012, nor in January
of 2014).
While Mitchell jumps to the conclusion that because he
is African American and Bozeman, Love, Chambers, and Fowler are
Caucasian, Energy’s discriminatory treatment of him is motivated
by racial animus, he fails to present any supporting evidence for
such.

During his deposition (#17-1, 136:5-19), Mitchell was

asked if the second Corrective Action Form was given to him
because of his race:
-38-

A. Yes.
Q. Why do you believe that?
A. I just do.
Q. Is there any basis for that opinion, or is that
just your belief?
A.
That’s my belief because, like I said, in the
second write-up, I didn’t sign it.
Q. Any other reason why you believe this write-up was
given to you because of your race?
A. No, not exactly.
Mitchell’s alleged termination could just as easily
have been based not only Energy’s claimed reason, his failure to
sign the second Corrective Action Form, but on personality
conflicts, his patently excessive absences, any of his other
alleged performance deficiencies, or any number of other reasons.
Love’s notes (#19-12) state that he and Chambers first developed
the re-training and re-qualification plan for Mitchell because of
the “amount of time away from the Control Center,” more than any
other Energy employee ever had done, as well as “significant
changes”

in

absence.42

their

pipeline

operations

during

his

extensive

Ashleigh Johnson in the OQ/Training Department and

Fowler in the Human Resources Department subsequently approved
the new plan. Moreover since Love both hired and fired Mitchell,
the same actor inference appears particularly applicable here and
creates a presumption that racial animus toward Mitchell was not
a factor in his termination.

Mitchell has not rebutted that

presumption.

42

Love’s notes state, “While this is the first situation
we have faced of an extended absence [2.5 months, 12 weeks] since
the inception of the NGL Liquids Pipeline Control Center, Steve
and I agree that any Liquids Controller missing 6 weeks or more of
Control Center time will need to be retrained and re-OQ’d.” #1912.
-39-

Accordingly, given Mitchell’s statement that he was no
longer pursuing his FMLA claims, the Court
ORDERS

that

Mitchell’s

DISMISSED with prejudice.

claims

under

the

FMLA

are

Because Mitchell has failed to meet

his burden of proof to establish a nexus between the employment
action taken by Energy and Mitchell’s race, the Court further
ORDERS that Energy’s motion for summary judgment (#17)
is GRANTED.

A final judgment will issue by separate document.

SIGNED at Houston, Texas, this

9rd

day of

February

, 2017.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

-40-