Odubela v. Exxon Mobil Corporation

Filing 69

MEMORANDUM AND ORDER entered. Plaintiff has failed to present evidence that raises a genuine issue of material fact regarding his § 1981 claims of race discrimination and retaliation. As a result, it is hereby ORDERED that Defendants Motion for Summary Judgment [Doc. # 58] is GRANTED and this case is DISMISSED WITH PREJUDICE. The Court will issue a separate final judgment. (Signed by Judge Nancy F Atlas) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TOLULOPE ODUBELA,
Plaintiff,
v.
EXXON MOBIL CORPORATION,
Defendant.

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§

August 04, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-15-3053

MEMORANDUM AND ORDER
This race discrimination and retaliation case is before the Court on the Motion
for Summary Judgment (“Motion”) [Doc. # 58] filed by Defendant Exxon Mobil
Corporation (“Exxon”), to which Plaintiff Tolulope Odubela filed a Response [Doc.
# 66], and Exxon filed a Reply [Doc. # 68]. Having reviewed the full record and
applicable legal authorities, the Court grants the Motion.
I.

BACKGROUND
Plaintiff, who was born in Nigeria, is a resident of Houston, Texas. Plaintiff

identifies himself as a black male whose race is “Sub-Saharan African.”
Plaintiff began working at Exxon as an intern in 2007. During his internship,
Plaintiff expressed a willingness to work for Exxon in Nigeria. See Plaintiff’s Depo.,
Exh. C to Motion, p. 49.

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In October 2008, after he completed his internship, Plaintiff was offered and
accepted a full-time position with Exxon as a Public & Government Affairs Advisor.
Alexandra Roberts-Judd was Plaintiff’s supervisor. Plaintiff has presented evidence
that he received positive comments from Roberts-Judd regarding his performance, and
that he received pay increases in 2009 and 2010. Exxon has presented evidence that
by September 2009, Roberts-Judd had concerns regarding Plaintiff’s failure to
complete assignments in a timely manner, and the frequent need to edit his writing.
As was the case during his internship, Plaintiff continued to express a willingness to
be assigned to work for Exxon in Africa in the future.
In January 2010, Nora Scheller became Plaintiff’s supervisor. Plaintiff has
presented sworn testimony that, for most of that year, his frequent interactions with
Scheller were positive, and that Scheller never expressed any concerns regarding
Plaintiff’s performance. Exxon has presented evidence that Scheller soon found
Plaintiff’s work product and performance to be “well below average” for an Exxon
employee in his position and with his experience. Exxon has presented evidence that
Scheller counseled Plaintiff regarding his failure to deliver on his self-imposed time
commitments, his problems with general time management, and his poor writing
ability. Plaintiff testified that he expressed to Scheller a willingness to be assigned to
work for Exxon in Africa. See id. at 88.

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Plaintiff has presented evidence that, after he mentioned to Scheller in
October 2010 that he was originally from Nigeria, Scheller began to complain
generally about his performance and suggested that he explore other positions that
might be a “better fit” for him. Plaintiff states under oath that Scheller asked him if
he had considered moving back to Nigeria and stated that she did not believe Plaintiff
had what it takes to make it in the United States. Exxon has presented evidence that
Scheller knew well before October 2010 that Plaintiff was from Nigeria, noting that
his resume included his education at the University of Nigeria.
Plaintiff states under oath that Scheller failed to give him any specific
information regarding his allegedly poor performance, except to mention his lack of
eye contact. Plaintiff states that he explained to Scheller that lack of eye contact was
a trait stemming from his ancestry and cultural background in which direct eye contact
is considered rude. In his deposition, Plaintiff testified that he told Scheller that he
was from Nigeria, but did not say that he was a member of the Sub-Saharan African
race. See id. at 159. Plaintiff testified also that he does not distinguish between being
from Nigeria and being a member of the Sub-Saharan African race. See id. at 158.
Plaintiff conceded, however, that some individuals from Nigeria may not be of the
Sub-Saharan African race, and clearly the Sub-Saharan African race encompasses
individuals from many diverse nations throughout Sub-Saharan Africa.

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In January 2011, Scheller met with Plaintiff to discuss a Performance
Improvement Plan (“PIP”). Plaintiff and Scheller agreed to meet bi-monthly to follow
up on the PIP. Plaintiff has presented sworn testimony that Scheller refused to
provide specific feedback regarding his work performance except to comment on his
lack of eye contact. Exxon has presented evidence that Scheller provided Plaintiff
with specific examples of the problems with his work product and performance.
Plaintiff admits that before he was placed on the PIP, he was ranked in the bottom
third relative to his peers at Exxon. Exxon has presented evidence that his low
ranking was based, in part, on negative feedback from Knowledgeable Others
(“KOs”), individuals at Exxon selected by Plaintiff to provide feedback. Plaintiff has
presented evidence that, although some of the KOs’ feedback was negative, some of
it was positive.
Plaintiff has presented evidence that, after Scheller again commented on his
“inability to make it in the United States” during a PIP meeting on May 9, 2011, he
complained to Exxon’s Human Resources Department about Scheller’s repeated
references to ethnic and cultural traits that Plaintiff attributes to members of the SubSaharan African race. Plaintiff also complained about Scheller’s repeated questioning
of Plaintiff’s ability to succeed in the United States. Plaintiff believes that Scheller

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targeted him and set him up for termination because he is of the Sub-Saharan African
race.
Plaintiff’s employment with Exxon was terminated on September 14, 2011.
Plaintiff alleges that he was terminated because of his Sub-Saharan African race.
Plaintiff filed his First Amended Complaint on February 29, 2016, asserting a
race discrimination claim and a retaliation claim under 42 U.S.C. § 1981. Discovery
has ended, and Exxon has moved for summary judgment on both claims. The Motion
has been fully briefed and is now ripe for decision.
II.

SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides for the entry of

summary judgment against a plaintiff who fails to make an adequate showing of an
element essential to his case and on which he will bear the burden at trial. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Curtis v. Anthony, 710 F.3d 587, 594 (5th
Cir. 2013); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
Summary judgment “should be rendered if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a); Celotex, 477 U.S. at 322-23; Curtis, 710 F.3d at 594.

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On a motion for summary judgment, the initial burden falls on the movant to
identify areas essential to the non-movant’s claim in which there is an “absence of a
genuine issue of material fact.” ACE Am. Ins. Co. v. Freeport Welding & Fabricating,
Inc., 699 F.3d 832, 839 (5th Cir. 2012). The moving party, however, “need not negate
the elements of the nonmovant’s case.” Coastal Agric. Supply, Inc. v. JP Morgan
Chase Bank, N.A., 759 F.3d 498, 505 (5th Cir. 2014) (quoting Boudreaux v. Swift
Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). The moving party may meet its
burden by pointing out “the absence of evidence supporting the nonmoving party’s
case.” Malacara v. Garber, 353 F.3d 393, 404 (5th Cir. 2003) (citing Celotex, 477
U.S. at 323; Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996)).
If the moving party meets its initial burden, the non-movant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue of material
fact for trial. Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004);
Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001) (internal
citation omitted). “An issue is material if its resolution could affect the outcome of
the action.” Spring Street Partners-IV, L.P. v. Lam, 730 F.3d 427, 435 (5th Cir.
2013). “A dispute as to a material fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” DIRECT TV Inc. v.
Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations omitted).

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In deciding whether a genuine and material fact issue has been created, the
court reviews the facts and inferences to be drawn from them in the light most
favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A genuine issue of material fact
exists when the evidence is such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “‘Conclusional allegations and
denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue
for trial.’” Pioneer Exploration, L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th
Cir. 2014) (quoting Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002); accord Delta
& Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir.
2008). Instead, the nonmoving party must present evidence which shows “the
existence of a genuine issue concerning every essential component of its case.”
Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 538 (5th Cir. 2012) (citation and
internal quotation marks omitted). In the absence of such evidence, the court will not
assume that the non-movant could or would prove the necessary facts. Little, 37 F.3d
at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).

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The Court may make no credibility determinations or weigh any evidence.
Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (citing Reaves
Brokerage Co., 336 F.3d at 412-13). The Court is not required to accept the
nonmovant’s conclusory allegations, speculation, and unsubstantiated assertions
which are either entirely unsupported, or supported by a mere scintilla of evidence.
Id. (citing Reaves Brokerage, 336 F.3d at 413); accord, Little, 37 F.3d at 1075.
III.

SECTION 1981 RACE DISCRIMINATION CLAIM
Race discrimination claims under § 1981 and disparate treatment claims under

Title VII require proof of intentional discrimination on the basis of the plaintiff’s race,
and they are considered under the same legal standards. See Jackson v. Watkins, 619
F.3d 463, 466 (5th Cir. 2010). A race discrimination claim under § 1981 may be
asserted by “identifiable classes of persons who are subjected to intentional
discrimination solely because of their ancestry or ethnic characteristics.” Saint
Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987); see also Alvarado v.
Shipley Donut Flour & Supply Co., Inc., 526 F. Supp. 2d 746, 754 (S.D. Tex. 2007);
Reedy v. Citgo Petroleum Corp., 2011 WL 797498, *4 (S.D. Tex. Feb. 28, 2011). In
this case, Plaintiff is Nigerian, asserting protected status as a member of the SubSaharan African race. A race discrimination claim can be established through either

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direct or circumstantial evidence. See Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir.
2003).
A.

Direct Evidence

Plaintiff has presented evidence that Scheller (1) asked him if he had considered
accepting an assignment with Exxon in Nigeria, (2) suggested he did not have what
it takes to make it in the United States, and (3) commented on his lack of eye contact.
For comments in the workplace to qualify as direct evidence of discrimination, they
must be (1) related to the plaintiff’s protected class; (2) near in time to the adverse
employment action; (3) made by an individual with authority to make the employment
decision at issue; and (4) related to the employment decision at issue. See Stone v.
Par. of E. Baton Rouge, 329 F. App’x 542, 545-46 (5th Cir. 2009).
Plaintiff states that he believes these comments were related to his race, the first
requirement for workplace comments to qualify as direct evidence of race
discrimination. The evidence, however, does not support his belief. It is undisputed
that Plaintiff expressed an interest in an assignment with Exxon in Africa, including
Nigeria, his country of national origin. There is no evidence that suggests that
Scheller’s comments regarding such an assignment, or her comments regarding his
ability to “make it” in the United States, related in any way to his Sub-Saharan
African race. Indeed, there is no evidence that Scheller was aware that Plaintiff

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considered himself a member of the Sub-Saharan race, only that Plaintiff told her he
was from Nigeria.1 Similarly, there is no evidence that lack of eye contact is an ethnic
trait of members of the Sub-Saharan African race, or that Scheller considered it one.
Plaintiff has failed to present evidence that raises a genuine issue of material fact
regarding direct evidence of race discrimination based on his Sub-Saharan African
race.
B.

Circumstantial Evidence - McDonnell Douglas Analysis

Where a plaintiff does not have direct evidence of discrimination, his claims are
considered under the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). First, the plaintiff must establish a prima facie case of
discrimination.2 See Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011);

1

Plaintiff argues in his Response that an employer can discriminate against an
employee of the basis of race “regardless of whether or not she actually knew his
specific race at the time she treated him differently.” See Response [Doc. # 66], p. 16.
Plaintiff cites no legal authority to support this argument. Indeed, case law is to the
contrary. See, e.g., Harris v. Dow Chem. Co., 586 F. App’x 843, 846 (3d Cir. 2014)
(inference of discrimination may be raised only if the relevant decision-maker has
knowledge of the plaintiff’s status as a protected class member); Batteast Constr. Co.
v. Henry Cnty. Bd. of Comm’rs, 194 F. Supp. 2d 828, 835 (S.D. Ind. 2002) (county
could not discriminate on basis of race absent knowledge of contractor’s race).

2

In this case, Exxon has articulated a legitimate, non-discriminatory reason for its
decision to terminate Plaintiff’s employment – his allegedly poor work performance.
Nonetheless, this Court must first make a definitive finding regarding whether
Plaintiff has established a prima facie case of discrimination (or retaliation) before
addressing the issue of pretext. See Hague v. Univ. of Tex. Health Sci. Cntr., 560 F.
App’x 328, 334 (5th Cir. Mar. 28, 2014).

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Hunter v. Union Pac. R. Co., 2013 WL 3229910, *4 (S.D. Tex. June 25, 2013)
(Rosenthal, J.). In cases involving the termination of employment, the elements of a
prima facie case are: (1) the plaintiff is a member of a protected class; (2) he was
qualified for his position; (3) he was subject to an adverse employment action; and (4)
he was replaced by someone outside the protected class or, in the case of disparate
treatment, was treated more harshly than others who were similarly situated. See id.
(citing Bouie v. Equistar Chems. LP, 188 F. App’x 233, 236-37 (5th Cir. 2006); Okoye
v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001)).
In this case, Plaintiff has presented evidence that he is a member of the SubSaharan African race (although there is no evidence that Scheller knew Plaintiff
considered himself a member of that race), that he was qualified for his position at
Exxon, and that he was subjected to an adverse employment action when his
employment with Exxon was terminated. It is undisputed, however, that Plaintiff was
not replaced following his termination. Instead, it is undisputed that his duties were
divided among the remaining Public & Government Affairs Advisors. Plaintiff has
also failed to present evidence of Public & Government Affairs Advisors at Exxon
who were not members of the Sub-Saharan African race, had similar performance
records, had similar low peer rankings, were also placed on a Performance
Improvement Program, yet were not terminated.

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Plaintiff has failed to present evidence that raises a genuine issue of material
fact regarding the fourth element of his prima facie case. Absent evidence that
Plaintiff was replaced by someone not of his race, or that similarly-situated
Public & Government Affairs Advisors not of his race were treated more favorably,
Defendant is entitled to summary judgment on the § 1981 race discrimination claim.
IV.

SECTION 1981 RETALIATION CLAIM
A plaintiff asserting a § 1981 claim of retaliation must first make a prima facie

case under the McDonnell Douglas burden-shifting framework. See Foley v. Univ.
of Houston Sys., 324 F.3d 310, 316 (5th Cir. 2003) (same elements for prima facie
case of retaliation under § 1981 and Title VII). To establish a prima facie case of
retaliation under § 1981, a plaintiff must present evidence that (1) he engaged in an
activity protected by § 1981, (2) he suffered an adverse employment decision, and (3)
a causal link exists between the protected activity and the adverse decision. See
Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008).
In this case, Plaintiff has failed to present evidence that raises a genuine issue
of material fact regarding the third element. In early May 2011, Plaintiff complained
to Exxon’s Human Resources Department regarding perceived race discrimination by

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Scheller.3 At that time, however, Plaintiff was already ranked in the bottom third of
his peer group based on his work performance in 2009 and 2010, he had already been
counseled – either generally or specifically – about poor work product and
performance, and he had already been on the PIP for four months. He had already
received negative comments from his prior supervisor and from his KOs. As a result,
Plaintiff has failed to raise a fact dispute in connection with his prima facie case of §
1981 retaliation, and Defendant is entitled to summary judgment on this claim.
IV.

CONCLUSION AND ORDER
Plaintiff has failed to present evidence that raises a genuine issue of material

fact regarding his § 1981 claims of race discrimination and retaliation. As a result, it
is hereby
ORDERED that Defendant’s Motion for Summary Judgment [Doc. # 58] is
GRANTED and this case is DISMISSED WITH PREJUDICE. The Court will
issue a separate final judgment.

3

Plaintiff states that he was told by his Human Resources contact that his complaint
had been investigated and it was determined that Scheller had no intent to
discriminate against him.

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SIGNED at Houston, Texas, this 4th day of August, 2017.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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