Wright vs. Shevron Phillips Chemical Company, LP
SUMMARY JUDGMENT OPINION AND ORDER granting 19 MOTION for Summary Judgment (Signed by Magistrate Judge Stephen Wm Smith) Parties notified.(jmarchand, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
S HERWIN T. W RIGHT,
C HEVRON P HILLIPS C HEMICAL C O., LP,
September 12, 2017
David J. Bradley, Clerk
C IVIL A CTION H-15-2363
SUMMARY JUDGMENT OPINION AND ORDER
This employment discrimination case is before the court on defendant’s motion for
summary judgment (Dkt. 21). A hearing was held on August 24, 2017. The motion is
From at least April 2008 until December 2014,1 Wright was the only AfricanAmerican maintenance electrician at defendant’s Pasadena, Texas plastics complex. From
2011 to 2012, Wright was on a medical leave of absence due to injuries, including a
traumatic brain injury, he suffered in a motorcycle accident. He returned to work with the
restriction that he must work with a second electrician at all times.
In September 2014, the Pasadena facility was engaged in a “turnaround” project. A
unit was shut down so that maintenance, including electrical work, could be done. The
project required completion of a “Lock, Tag, Try” process in which equipment is turned off
Wright’s summary judgment response says he was hired by Chevron in 1994 (Dkt. 21 at 8),
but in his deposition he testified he started in April 2008 (Dkt. 19-2 at 6). The discrepancy
is not material.
or “de-energized” so that it cannot be turned on while work is in progress. The Lock, Tag,
Try process has several steps, and requires completion of various forms by the electrician
completing each step. One of these forms is called the “Isolation list” and identifies electrical
breakers that need to be properly de-energized. On September 30, 2014, Wright’s supervisor,
Darryn Barnes, assigned Wright to disconnect the T-leads from certain breakers. Wright was
not accompanied by a second electrician when he performed the assignment. A
superintendent, Keith Bravenec, later learned that the T-leads on those electrical breakers had
not been disconnected as required by the Lock, Tag, Try process and as indicated by Wright’s
initials on the isolation list. Bravenec reported the incident to Human Resources.
On October 8, 2014, defendant told Wright he was being suspended without pay
pending an investigation into the incident. This initial suspension was open-ended — Wright
was not given a date to return to work. Having heard nothing further from his employer by
October 27, 2014, Wright sent an email to Chevron CEO Pete Cella.2 Cella responded
quickly, saying he had “looked into your situation and can inform you that someone will be
contacting you shortly about your status.”3 Within 24 hours, Chevron contacted Wright and
told him to return to the plant.
Wright’s email says that he had met Cella while recovering from his motorcycle accident,
at which time Cella gave Wright his card and said to call if he had any problems. Dkt. 21-7.
Upon his return on October 30, 2014, Wright was given a letter titled “Final Warning
and Two-week Suspension.”4 Wright signed the letter although he disagreed with its content.
Wright was assigned to report to Tom Shomette at the Pasadena Central Business Office to
undergo “retraining and recertification.”
There was no written procedure in place for the “retraining and recertification” Wright
allegedly needed. During this period, Wright was given old electrical manuals and told to sit
in a cubicle and read them. Chevron did not have a test in place to determine when or
whether Wright would be certified to return to work. No other employee had ever been given
this form of discipline.
On November 11, 2014, a contract employee reported to his supervisor, Dean Merritt,
that someone was snoring in a cubicle. Although Wright disputes it, Human Resources
concluded the snorer was Wright. On November 18, 2014, Chevron issued a three-day
suspension and “last chance” warning to Wright for this alleged violation of company work
rules. The last chance warning informed Wright that he would be immediately terminated for
any attendance or tardiness issues; unsatisfactory job performance; failure to follow all
procedures, policies, and work rules; and that he “must pass a recertification exam and walkthru after reasonable efforts to remediate, as determined by the Company.” 5
Dkt. 20 at 2.
On November 20, 2014, Wright did not show up for his “retraining.” The training
superintendent, John Smith, called Wright. Wright confirmed that he did not contact a
supervisor regarding his absence, but that he had called the University of Pittsburgh Medical
Center, Work Partners’ Division (UPMC), a third-party that managed defendant’s medical
leave programs. Chevron management, specifically Human Resource Manager Lisa Laurin,
Department Manager Andy Woods, and Plant Manager Mike Gilbert, decided to terminate
Wright. Chevron contends that it has not hired anyone to replace Wright.
Wright has sued Chevron for racial discrimination and retaliation under Title VII, 42
U.S.C. § 1981, and the Texas Labor Code.6 Chevron moves for summary judgment on
Summary Judgment Standards
Summary judgment is appropriate if no genuine issues of material fact exist, and the
moving party is entitled to judgment as a matter of law. F ED . R. C IV. P. 56(c). The party
moving for summary judgment has the initial burden to prove there are no genuine issues of
material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th
Cir. 2001). Dispute about a material fact is “genuine” if the evidence could lead a reasonable
Dkt. 1. The summary judgment analysis is the same for claims of race discrimination under
Title VII, § 1981, and § 1983. Lauderdale v. Texas Dept. of Criminal Justice, Institutional
Division, 512 F.3d 157, 166 (5th Cir. 2007). In addition, Texas courts look to federal law
when evaluating disability discrimination claims under chapter 21 of the Texas Labor Code.
Haggar Apparel Co. v. Leal, 154 S.W.3d 98, 100 (Tex. 2004); Quantum Chem. Corp. v.
Toennies, 47 S.W.3d 473, 476 (Tex. 2001). Therefore, while there may be additional bases
for dismissal of Wright’s § 1981 and Texas Labor Code claims, the court addresses all
Wright’s claims under Title VII standards.
jury to find for the nonmoving party. In re Segerstrom, 247 F.3d 218, 223 (5th Cir. 2001).
“An issue is material if its resolution could affect the outcome of the action.” Terrebonne
Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th Cir. 2002).
The standard for granting summary judgment in Title VII cases is by now too familiar
to warrant extended recitation. Reeves v. Sanderson Plumbing Prods., Inc., succinctly
summarizes the appropriate inquiry:
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
530 U.S. 133, 148-49 (2000). The court must draw all reasonable inferences in favor of the
non-movant, and disregard all evidence favorable to the moving party that the jury is not
required to believe. Id. at 150-51. Trial courts should not treat discrimination differently than
other ultimate questions of fact for purposes of Rule 50 or 56. Id. at 148.
Title VII prohibits an employer from discriminating “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.” 42 U.S.C. § 2000e-2(a)(1). It also
prohibits an employer from retaliating against an employee for opposing unlawful
employment practices or participating in Title VII proceedings. 42 U.S.C. § 2000e-3(a).
Racial discrimination. Wright has no evidence that similarly situated employees who
are not African-American were treated more favorably, or that he was replaced by a nonAfrican-American. Nonetheless, Wright points to the following facts in support of his
contention that defendant discriminated against him:
Wright was the only African-American among 11 electricians at the Pasadena
No other employee involved in the incomplete Lock, Tag, Try incident was
disciplined, including his supervisor Darryn Barnes who sent him to do the job
without a work order and without a second electrician, or Billy Donnell, the operator
who told Wright that he did not need to complete the Lock, Tag, Try process and
refused to return the Isolation List to him so he could remove his initials8 ;
Defendant has never required another employee to “recertify”in his field before being
allowed to return to work 9 ;
At the time Wright was suspended for the Lock, Tag, Try incident, defendant had no
curriculum for his retraining and no test for recertification 10 ;
Higgins Dep., Dkt. 21-1 at 4.
Wright Dep., Dkt. 21-3 at 4-5, 8; Laurin Dep., Dkt. 21-4 at 2-4, 18.
Dkt. 21-4 at 12.
Id. at 5-8.
Although defendant’s October 30, 2014 letter stated Wright was being placed on a
two-week suspension without pay, defendant actually had no idea how long the
“recertification” process would take 11 ;
Less than 2 weeks into the “recertification” process, Wright was accused of sleeping
on the job, and a week after that was given an additional three-day suspension and a
told he would be fired for further violation of work place rules 12 ;
Wright contends it was another African-American male who was snoring 13 ;
Defendant has never disciplined another employee for simply dozing off in his chair
instead of intentionally going to sleep 14 ;
Defendant says it terminated Wright because Wright violated rules by not calling his
supervisor Darryn Barnes to report that he would absent15 ;
Darryn Barnes was not supervising Wright during his “recertification” 16 ;
Wright actually called in sick to defendant’s “UPMC” system.17
Dkt. 21-3 at 13; November 18, 2014 Last Chance Letter, Dkt. 20.
Dkt. 21-3 at 13.
Dkt. 21-1 at 15-22.
Dkt. 21-4 at 15-17.
Id.; Dkt. 21-3 at 12-13.
Dkt. 21-3 at 17. UPMC is defendant’s “one call” system run by the University of Pittsburgh.
Wright certainly has produced evidence suggesting that his treatment was unusual and
perhaps even unfair. There is no basis to infer racial animus from these facts. Proof of the
falsity of a defendant’s stated reason for an adverse employment action can, in some
circumstances, suffice to meet a plaintiff’s burden to show pretext. Laxton v. Gap Inc., 333
F.3d 572, 578 (5th Cir. 2003) (“A plaintiff may establish pretext either through evidence of
disparate treatment or by showing that the employer's proffered explanation is false or
‘unworthy of credence’). But here, defendant’s reasons are not actually false: Wright did
initial the isolation sheet without having completed the assignment; defendant believed
Wright was the person snoring in his cubicle; and Wright did call the UPMC system instead
of his supervisor on the day he was absent. There may be a fact issue whether these reasons
actually justified his termination under existing policies and procedures, but there is nothing
to suggest that they are pretext for discrimination. The Fifth Circuit has rejected attempts to
show pretext based solely on an employer’s failure to follow its own policy. Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 346 (5th Cir. 2007) (Title VII does not protect
employees from arbitrary employment practices, only discriminatory ones). The court
concludes that defendant is entitled to summary judgment on Wright’s discrimination claim.
Retaliation. The elements of a retaliation claim are (1) protected activity; (2) a
materially adverse action; and (3) a causal link between the protected activity and the
materially adverse action. Fisher v. Lufkin Indus. Inc., 847 F.3d 752, 757 (5th Cir. 2017);
Fabela v. Socorro Indep. School Dist., 329 F.3d 409, 414 (5th Cir. 2003). In the context of
retaliation, a materially adverse action is one that “might well have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington Northern & Santa
Fe Railway Co. v. White, 548 U.S. 53, 68 (2006).
An employee engages in activity protected by Title VII when he (1) opposes any
practice made an unlawful employment practice by Title VII; or (2) makes a charge, testifies,
assists, or participates in any manner in an investigation, proceeding, or hearing under Title
VII. Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996). The employee must
demonstrate at least a “reasonable belief” that the practices opposed were unlawful. Id.
Wright claims he engaged in protected activity when he sent his October 27, 2014
email to CEO Peter Cello. The court disagrees. Wright’s email says only that Wright has “a
problem.” Wright describes the events leading up to his suspension, informs Cella of the
stress it’s causing his family, and says he expects better from the Chevron Phillips family.
The email does not mention race, Title VII, or any allegedly unlawful employment practice.
The email does not constitute a protected activity under Title VII. Therefore, Wright cannot
meet his burden to survive summary judgment on his Title VII retaliation claim.
For the reasons set forth above, defendant’s motion for summary judgment is granted
and plaintiff’s claims are dismissed with prejudice. The court will issue a separate final
Signed at Houston, Texas on September 12, 2017.
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