McNealy v. Becnel et al, No. 2:2014cv02181 - Document 343 (E.D. La. 2017)

Court Description: ORDER AND REASONS: ORDERED that 275 Motivas and the 278 , 279 Shell Defendants' Motions for Summary Judgment dismissing all of Plaintiff's claims with prejudice is GRANTED IN PART and DENIED IN PART. The Defendants' Motions for Summary Judgment are granted with respect to Plaintiff's federal claims. The Defendants' motions are denied to the extent the Defendants request that Plaintiff's state law claims be dismissed with prejudice. FURTHER ORDERED that Pl aintiff's Section 1981, 1985(2) and (3), 1986, and 141 claims are hereby DISMISSED WITH PREJUDICE. FURTHER ORDERED that Plaintiff's state law claims are DISMISSED WITHOUT PREJUDICE pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Signed by Judge Susie Morgan on 6/5/2017. (clc)

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McNealy v. Becnel et al Doc. 343 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A N EW TON MCN EALY, Plain tiff CIVIL ACTION VERSU S N O. 14 -2 18 1 D ARRYL J. BECN EL, ET AL., D e fe n d an ts SECTION : “E” ( 2 ) ORD ER AN D REAS ON S Before the Court are Motions for Sum m ary J udgm ent filed by Defen dants Motiva Enterprises, LLC (“Motiva”), 1 Shell Oil Com pany, 2 and Shell Chem ical L.P. 3 seeking the dism issal of Plaintiff’s claim s with prejudice. Plaintiff Newton McNealy opposes these m otions. 4 For the following reasons, the Defendants’ m otions for sum m ary judgm ent are GRAN TED IN PART. The m otions are D EN IED IN PART to the extent m ovants seek dism issal of Plaintiff’s state law claim s with prejudice. FACTU AL & PROCED U RAL BACKGROU N D McNealy originally filed this civil action on Septem ber 22, 20 14, and has been granted leave of court on m ultiple occasions to am end his com plaint. 5 On Decem ber 22, 20 15, Shell Oil Com pany, along with Motiva Enterprises LLC (“Motiva”) and Shell Chem ical LP, filed a m otion to dism iss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 6 On October 17, 20 16, the Court issued its Order regarding the then pending dispositive m otions that had been filed by the Defendants in this case. 7 In its 1 R. Doc. 275. R. Doc. 278. 3 R. Doc. 279. 4 R. Docs. 30 9, 310 , 312. 5 McNealy’s com plaints include Record Docum ent 1 (Com plaint), Record Docum ent 37 (Am ended and Supplem ental Com plaint), Record Docum ent 60 (Second-Am ended Com plaint), Record Docum ent 114 (Third-Am ended Com plain t), and Record Docum ent 260 (Fourth-Am ended Com plaint). 6 R. Doc. 121. 7 R. Doc. 237. 2 1 Dockets.Justia.com Order, the Court dism issed Plaintiff’s Title VII, ADA and ERISA claim s and converted Motiva, Shell Oil Company, and Shell Chem ical LP’s 12(b)(6) m otion to dism iss with respect to Plaintiff’s Section 1981, 1985(2) and (3), 1986, and 141 claim s into m otions for sum m ary judgm ent. 8 The Court deferred on ruling on whether to exercise supplem ental subject m atter jurisdiction on McNealy’s state law claim s until after the Court ruled on the Defendants’ m otions for sum m ary judgm ent. 9 On February 7, 20 17, pursuant to the Court’s Order, 10 Shell Oil Com pany and Shell Chem ical LP (“Shell Defendants”) filed their respective m otions for sum m ary judgm ent. 11 On that sam e day, Motiva filed its m otion for sum m ary judgm ent. 12 Plaintiff is an African-Am erican m ale who was originally hired by Shell Chem ical LP in 20 0 6 to work as a m achinist at a chem ical plant in Norco, Louisiana. The chem ical plant shares the sam e industrial site as Motiva Enterprises LLC’s Norco refinery. In J uly 20 0 8, McNealy voluntarily and successfully bid to transfer his em ploym ent to Motiva as a m achinist at the refinery. McNealy volunteered for a “turnaround” shift in October and Novem ber 20 11. Three in cidents allegedly occurred during this turnaround shift. McNealy alleges, on or about Novem ber 7, 20 11, while in the course and scope of his em ploym ent with Motiva, he was “victim ized” and “struck in the head” by a crane control box at the hands of his white co-workers. After the attack, McNealy alleges he retreated to a com pany truck to recover whereupon his co-workers “wrapped and sealed” him in the vehicle and covered the windows with shaving cream . McNealy also alleges, in the 8 See id. Id. at 38. 10 R. Doc. 267. 11 R. Docs. 278, 279. 12 R. Doc. 275. 9 2 days that followed, he was verbally assaulted, threatened, sodom ized, 13 and sexually harassed by his white co-workers, which contributed to a hostile work environm ent. McNealy thus alleges the various Defendants condoned “inappropriate behavior in the workplace,” and ultim ately violated the Collective Bargaining Agreem ent between Motiva and the Plaintiff’s union. Plaintiff also alleges that during his em ploym ent at the Norco Refinery sim ilarly situated white em ployees were appointed or prom oted to upper echelon job position s without his being allowed to com pete for the positions. In his Fourth Am ended Com plaint, McNealy alleges, as a result of this treatm ent, he developed and has been diagnosed with post-traum atic stress disorder, anxiety, paranoia, and depression, am ong other conditions. As a result of his allegedly raising com plaints about the incidents and the hostile work environm ent created thereby, McNealy alleges the Defendants retaliated against him . McNealy alleges he was placed on non-occupational disability in February of 20 12 and rem ained on disability for over two years. According to McNealy, after having been on disability for an exten ded period of tim e, he was converted to “non-pay status,” and after two years, his em ploym ent relationship with Motiva was term inated. LEGAL STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”14 “An issue is m aterial if its resolution could affect the outcom e of the action.”15 13 Although Plaintiff alleges he was sodom ized, Plaintiff testified at his deposition that he was dressed in a jum psuit and underwear at the tim e of the inciden t and there was no contact with his skin and no penetration. R. Doc. 275-3 at 33 ln. 9-19; R. Doc. 310 -3 at 10 ¶ 15. 14 F ED . R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 15 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 3 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the evidence.”16 All reasonable inferences are drawn in favor of the nonm oving party. 17 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the nonm oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 18 If the dispositive issue is on e on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 19 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the nonm oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 20 If the dispositive issue is one on which the nonm oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative eviden ce that negates an essential elem ent of the nonm ovant’s claim , or (2) dem onstrating there is no evidence in the record to establish an essential elem ent of the nonmovant’s claim . 21 When proceeding under the first option, if the 16 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8); see also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 17 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 18 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 19 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 20 Celotex, 477 U.S. at 322– 24. 21 Id. at 331– 32 (Brennan , J ., dissenting); see also St. Am ant v. Benoit, 80 6 F.2d 1294, 1297 (5th Cir. 1987) (citing J ustice Brennan’s statem ent of the sum m ary judgm ent standard in Celotex Corp. v. Catrett, 477 U.S. 317, 322– 24 (1986), and requirin g the m ovants to subm it affirm ative evidence to negate an essential 4 nonm oving party cannot m uster sufficient eviden ce to dispute the m ovant’s contention that there are no disputed facts, a trial would be useless, and the m oving party is entitled to sum m ary judgm ent as a m atter of law. 22 When, however, the m ovant is proceeding under the second option and is seeking sum m ary judgm ent on the ground that the nonm ovant has no evidence to establish an essential elem ent of the claim , the nonm oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting eviden ce already in the record that was overlooked or ignored by the m oving party.”23 Under either scenario, the burden then shifts back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the nonm ovant. 24 If the m ovant m eets this burden, “the burden of production shifts [back again] to the nonm oving party, who m ust either (1) rehabilitate the evidence attacked in the m oving party’s papers, (2) produce additional eviden ce showing the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explaining why further discovery is necessary as provided in Rule 56(f).”25 “Sum m ary judgm ent should be granted if the nonm oving party fails to respond in one or m ore of these ways, or if, after the nonm oving party responds, the court determ ines that the m oving party has m et its ultim ate burden of persuading the court that there is no genuine issue of m aterial fact for trial.”26 elem ent of the nonm ovant’s claim or, alternatively, dem onstrate the nonm ovant’s evidence is insufficient to establish an essential elem ent); Fano v. O’N eill, 80 6 F.2d 1262, 1266 (citing J ustice Bren nan’s dissent in Celotex, and requiring the m ovant to m ake an affirm ative presentation to n egate the non m ovant’s claim s on sum m ary judgm ent); 10 A CHARLES ALAN W RIGHT, ARTHUR R. M ILLER & M ARY KAY KANE , F EDERAL P RACTICE AND P ROCEDURE §2727.1 (20 16) (“Although the Court issued a five-to-four decision , the m ajority and dissent both agreed as to how the sum m ary-judgm ent burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.” (internal citations om itted)). 22 First N ational Bank of Arizona v. Cities Service Co., 391 U.S. 253, 28 8 – 89 (198 0 ); Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 249– 50 (1986). 23 Celotex, 477 U.S. at 332– 33. 24 Id. 25 Celotex, 477 U.S. at 332– 33, 333 n.3. 26 Id.; see also First N ational Bank of Arizona, 391 U.S at 289. 5 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that evidence supports the claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”27 LAW AN D AN ALYSIS I. Plaintiff’s Racial Discrim ination Claim s Under Section 1981 McNealy alleges race discrim ination claim s against Motiva under 42 U.S.C. § 198 1 and the Louisiana Em ploym ent Discrim ination Law (“LEDL”) 28 for unlawful term ination, retaliation, failure-to-prom ote, and hostile work environm ent. 29 a. Term ination of Em ploym ent McNealy alleges Motiva unlawfully discrim inated against him on account of his race when it term inated his em ploym ent on April 30 , 20 14. It is undisputed that on Novem ber 10 , 20 11, McNealy m et with Brandon Dufrene (Routine Maintenance Execution Supervisor), David Naquin (Central Shop Mechanical Quality Assurance/ Quality Control), and Wilton Ledet (a represen tative of the United Steelworks Union, Local 750 (the “Local Union”)). 30 It is undisputed that the purpose of this m eeting was to discuss McNealy’s recent job-perform ance issues. 31 Motiva provides 27 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998 ) (citin g Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 28 As discussed in greater detail below, the Court declines to address the m erits of Plain tiff’s state law claim s. See infra p. 28. 29 See R. Doc. 260 . 30 R. Doc. 275-2 at ¶ 17; R. Doc. 310 -3 at ¶ 17. 31 R. Doc. 275-2 at ¶ 18. In its Statem ent of Uncontested Facts, Motiva alleges “The purpose of the m eeting was to discuss McNealy’s recent job-perform ance issues. Id. Plaintiff den ies this fact and instead states, “The purpose of this m eeting was to discuss alleged recent job perform ance issues.” R. Doc. 310 -3 at ¶ 18 (em phasis added). 6 the sworn declarations of Mary Snyder and Brandon Dufrene in which they testify that the Novem ber 10 , 20 11 m eeting was the first tim e that McNealy m entioned the crane box, truck and “goosing” incidents to Motiva. 32 McNealy disputes that this was the first knowledge Motiva had of these incidents because Motiva em ployees were involved an d Motiva had knowledge through them . 33 It does not appear, however, that McNealy contests that this was the first tim e he m entioned these three incidents to Motiva’s m anagem ent. 34 It is uncontested that, following the m eeting, Dufrene and Naquin im m ediately reported McNealy’s claim s to Mary Snyder in Motiva’s hum an resources departm ent. 35 According to Motiva, Snyder then requested another m eeting with McNealy to gather additional details about his claim s and this m eeting took place on Novem ber 14, 20 11. 36 Plaintiff denies the m eeting took place at all. 37 It is undisputed that after this date, Plaintiff took three m onths of FMLA leave and did not return to work until February 29, 20 12. 38 It is also undisputed that on February 29, 20 12, Plaintiff returned from his FMLA leave. 39 It is undisputed that upon his return, a m eeting was held between Plaintiff, Snyder, Dufrene, Ledet, and Tim Casey 40 to discuss reports that McNealy had 32 R. Doc. 275-2 at ¶ 20 ; See R. Doc. 310 -3 at ¶ 20 ; R. Doc. 275-5 at ¶ 19 (Snyder’s Sworn Declaration ); R. Doc. 275-6 at ¶ 9 (Dufrene’s Sworn Declaration). 33 R. Doc. 310 -3 at ¶ 20 . 34 See id. 35 R. Doc. 275-2 at ¶ 22; R. Doc. 310 -3 at ¶ 22; R. Doc. 275-5 at ¶ 19. 36 R. Doc. 275-2 at ¶ 23. 37 R. Doc. 310 -3 at ¶ 23 (referencing Deposition of McNealy). In his deposition , Plaintiff states this m eeting never occurred. See R. Doc. 341-2 at 316. Although Plaintiff denies this m eeting occurred, Exhibit 1 accom panying his Opposition to Motiva’s Motion for Sum m ary J udgm ent contain s notes from an interview with Plaintiff occurring on Novem ber 14, 20 11. R. Doc. 310 -4. 38 R. Doc. 275-2 at ¶ 27; R. Doc. 310 -3 at ¶ 27. In his Deposition, Plaintiff m entions that he took three m onths FMLA leave. See R. Doc. 341-1 at 130 . Additionally, Exhibit 1 to Plaintiff’s Opposition discusses Plaintiff’s three m onth non -occupational disability leave from Novem ber 10 , 20 11 through February 28 , 20 12. R. Doc. 310 -4 at 5. 39 R. Doc. 275-2 at ¶ 30 ; R. Doc. 310 -3 at ¶ 30 . Although Plaintiff states that he den ies Motiva’s uncontested m aterial fact, it is clear from his response that he does not deny that Plaintiff returned from FMLA leave on February 29, 20 12. Id. 40 Tim Casey is identified as the Supervisor-Reliability for Instrum ent Maintenance. R. Doc. 275-5 at ¶ 29. 7 been sleeping on the job and that one of his tim e cards was falsified. 41 Motiva offers eviden ce that following this m eeting, McNealy finished his shift before returning hom e. 42 In his opposition, Plaintiff denies this occurred and asserts that he did not finish his shift and instead left im m ediately after the m eeting concluded. 43 During his deposition, however, McNealy affirm atively answered that he finished his shift before returning hom e on February 29, 20 12. 44 The parties agree that McNealy did not return to work after that day and was subsequently placed on non-occupational disability leave. 45 It also is uncontested that on February 6, 20 14, Motiva inform ed McNealy via certified m ail that, if he did not return to work by April 30 , 20 14, the day his disability leave was set to expire, his em ploym ent would be term inated per Motiva policy. 46 It also is uncontested that McNealy did not return to work by April 30 , 20 14. 47 As a result, the parties agree that, after m ore than two years on non-occupational disability leave, McNealy’s em ploym ent relationship with Motiva was term inated on April 30 , 20 14. 48 Section 1981(a) provides that “[a]ll persons within the jurisdiction of the United States shall have the sam e right in every State and Territory to m ake and enforce contracts…”49 Section 1981(b) defines the term “m ake and enforce contracts” to include “the m aking, perform ance, m odification, and term ination of contracts, and the enjoym ent of all benefits, privileges, term s an d conditions of the contractual relationship.” 50 The 41 R. Doc. 275-2 at ¶ 30 ; R. Doc. 275-5 at ¶ 29. R. Doc. 275-2 at ¶ 30 . 43 R. Doc. 310 -3 at ¶ 30 . 44 R. Doc. 341-1 at 141 (Plaintiff’s Deposition). In any event, this factual dispute is not m aterial. 45 R. Doc. 275-2 ¶¶ 31, 34; R. Doc. 310 -3 ¶¶ 31, 34. 46 R. Doc. 275-2 at ¶ 32; R. Doc. 310 -3 at ¶ 32; R. Doc. 275-8. 47 R. Doc. 275-2 at ¶ 33; R. Doc. 310 -3 at ¶ 33; R. Doc. 275-9. 48 R. Doc. 275-2 at ¶ 35; R. Doc. 275-9. The Plaintiff adm its the em ploym ent relationship was term inated on April 30 , 20 14 but argues that his term ination was n ot proper. R. Doc. 310 -3 at ¶¶ 35, 37. 49 42 U.S.C. § 1981(a). 50 Id. § 1981(b). 42 8 standard of proof for Section 1981 claim s is the sam e as for Title VII claim s. Section 1981 claim s are an alyzed under the Title VII evidentiary fram ework. 51 Liability on a claim that an em ployer intentionally discharged an em ployee because of race or n ational origin – i.e., a “disparate treatm ent” claim – “depends on whether the protected trait actually m otivated the em ployer’s decision.” 52 “[A] plaintiff can prove disparate treatm ent either (1) by direct evidence that a workplace … decision relied expressly on a protected characteristic, or (2) by using the burden-shifting fram ework set forth in McDonnell Douglas.”53 Plaintiff attem pts to prove through direct evidence that the term ination of his em ploym ent relationship with Motiva was based on his race. “Direct evidence is evidence that, if believed, proves the fact of discrim inatory anim us without inference or presum ption. In the Title VII context, direct eviden ce includes any statem ent or docum ent that shows on its face that an im proper criterion served as a basis for the adverse em ploym ent action.”54 McNealy’s alleged direct eviden ce of discrim in ation is (1) the rem arks allegedly m ade to him by David Mendel in 20 11 about a racist sign in Mendel’s hom etown, 55 and (2) the alleged use of racial slurs by Perry Montz in 20 11. 56 Neither Mendel nor Montz was involved in McNealy’s term ination, which occurred over two years later. 57 As a result, this evidence, even if true, is not direct evidence of 51 Pegram v. Honey w ell, Inc., 361 F.3d 272, 281 & n.7 (5th Cir. 20 0 4); Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 20 0 2)). 52 Young v. United Parcel Service, Inc., --- U.S. ---, 135 S.Ct. 1338 , 1345 (20 15) (quoting Ray theon Co. v. Hernandez, 540 U.S. 44, 52 (20 0 3)). 53 Id. 54 Harry v . Dallas Hous. Auth., 662 F. App’x 263, 266 (5th Cir. 20 16) (citations om itted). 55 See R. Doc. 310 -13 at ¶ 32 (Plaintiff’s Affidavit). 56 R. Doc. 341-1 at 63 (Plaintiff’s Deposition). 57 The February 6, 20 14 letter sent to McNealy stating that his em ploym ent would be term inated on April 30 , 20 14 in accordance with com pany policy was sent by Tam m y Troxclair, a hum an resources associate at Motiva. R. Doc. 275-8 (Term ination Letter). 9 discrim ination because an inference is required to link the 20 11 rem arks to the 20 14 term ination of McNealy’s em ploym ent for an im proper reason. 58 The Court finds that McNealy has not adduced direct evidence of discrim ination and, as a result, McNealy’s claim that he was term inated because of discrim in ation m ust be evaluated using the burden-shifting fram ework of McDonnell Douglas. 59 Under the McDonnell-Douglas fram ework, a plaintiff relying on circum stantial eviden ce m ust first establish a prim a facie case of discrim ination. 60 If the plaintiff is successful, the burden shifts to the defendant to proffer a legitim ate, non-discrim inatory reason for its em ploym ent decision. 61If the defendant carries this burden, the inference of discrim ination disappears, 62 and the burden shifts back to the plaintiff to prove the defendant's articulated reason (a) is m ere pretext for discrim ination, or (b), if true, is only one of the reasons for its decision, and another "m otivating factor" is the plaintiff's protected characteristic. 63 In order to establish a prim a facie case of unlawful term ination on the basis of race, a plaintiff m ust dem onstrate that (1) he belongs to a protected class, (2) he was qualified for the position, (3) he was discharged from the position, and (4) the em ployer sought to replace him with a sim ilarly qualified in dividual outside of the protected group or that defendant treated individuals of a different race or gender m ore favorably than it treated him . 64 58 See Harry , 662 F. App’x at 267. See id. 60 Autry v. Fort Bend Ind. Sch. Dist., 70 4 F.3d 344, 347 (5th Cir. 20 13). 61 Turn er v. Kan . City . S. Ry . Co., 675 F.3d 8 87, 892 (5th Cir. 20 12). 62 Davis v. Dall. Area Rapid Transit, 382 F.3d 30 9, 317 (5th Cir. 20 0 4). 63 See Autry , 70 4 F.3d at 347. 64 See, e.g. Catchings v. St. Tam m any Ass’n for Retarded Citizens, 20 0 2 WL 31427324, at *1 (E.D. La. Oct. 28 , 20 0 2) (citations om itted). 59 10 The parties do not dispute that the first three elem ents have been m et. Motiva argues McNealy is unable to establish the fourth elem ent and his “prim a facie case fails because he cannot prove that Motiva sought to replace him with a non-African-Am erican, or that he was actually replaced by one.”65 Motiva correctly notes that McNealy provides no evidence whatsoever with respect to whether he was replaced and, if so, by whom , but a plaintiff also m ay satisfy the fourth elem ent of his prim a facie case by dem onstrating the defendant treated individuals of a different race or gender m ore favorably than the Defendant treated him . But neither did McNealy provide evidence that individuals of a different race or gen der were treated m ore favorably than he was. McNealy has failed to create an issue of disputed fact with respect to whether Motiva, when it term in ated his em ploym ent relationship pursuant to com pany policy after two years of non-occupational disability leave, treated him any differently or less favorably than others because of his race. Because the Plaintiff has failed to prove the fourth elem ent of his prim a facie case by a preponderance of the eviden ce, the burden does not shift to the Defendant to offer a legitim ate, non-discrim inatory reason for Plaintiff’s term ination, and the Court need not engage any further in the McDonnell-Douglas burden-shifting analysis. Nevertheless, assum in g arguendo that McNealy established a prim a facie case, the Court finds that Motiva has offered a legitim ate, non-discrim inatory reason for his term ination – McNealy was term inated in accordance with com pany policy that em ploym ent is term inated after a two-year non-occupational disability leave if the em ployee does not return to work. It is undisputed that on February 6, 20 14, Motiva inform ed McNealy via certified m ail that, if he did not return to work by April 30 , 20 14, 65 R. Doc. 275-1 at 10 . 11 the day his disability leave was set to expire, his em ploym ent would be term in ated per Motiva policy. 66 Motiva presents the sworn declaration of Mary Sn yder in which she testifies that “from 20 12-20 14, Motiva term in ated seven em ployees at the Refinery under this very sam e policy, six of whom were Caucasian.”67 Because Motiva has articulated a legitim ate, non-discrim inatory reason for his term ination, the burden shifts back to the Plaintiff to prove the defendant’s articulated reason (a) is m ere pretext for discrim in ation, or (b), if true, is only one of the reasons for its decision, and another “m otivating factor” is the Plaintiff’s protected characteristic. 68 Motiva argues “McNealy cannot carry his sum m ary judgm ent burden under either alternative.”69 As the Suprem e Court explain ed in Reeves v. Sanderson Plum bing Products, Inc., “Although interm ediate evidentiary burdens shift back and forth under the fram ework, the ultim ate burden of persuading the trier of fact that the defendant intentionally discrim inated again st the plaintiff rem ains at all tim es with the plain tiff.”70 “To carry that burden, the plaintiff m ust produce substantial evidence of pretext.”71 “Eviden ce that the proffered reason is unworthy of credence m ust be enough to support a reasonable inference that the proffered reason is false; a m ere shadow of doubt is insufficient.”72 The Fifth Circuit “has consistently held that an em ployee’s ‘subjective belief of discrim in ation’ alone is not sufficient to warrant judicial relief.”73 In response to a m otion for sum m ary 66 R. Doc. 275-2 at ¶ 32 (citin g R. Doc. 275-3 at 35 ln . 5-10 ); R. Doc. 310 -3 at ¶ 32. R. Doc. 275-1 at 10 (citin g R. Doc. 275-5 at ¶ 32 (Declaration of Mary Snyder)). 68 See Autry , 70 4 F.3d at 347. 69 R. Doc. 275-1 at 10 . 70 530 U.S. 133, 143 (20 0 0 ) (quotin g Texas Dept. of Cm ty . Affairs v. Burdin e, 450 U.S. 248, 253 (1981) (internal quotations om itted)). 71 See Auguster v. Verm ilion Par. Sch. Bd., 249 F.3d 40 0 , 40 2-0 3 (5th Cir. 20 0 1). 72 Id. at 40 3 (quotin g Bauer v. Albem arle Corp., 169 F.3d 962, 967 (5th Cir. 1999)). 73 Id. (quotin g Bauer, 169 F.3d at 967) (citation om itted)). 67 12 judgm ent, “it is therefore incum bent upon the non-m oving party to present eviden ce – not just conjecture and speculation – that the defendant retaliated and discrim inated against plaintiff on the basis of her race.” 74 Plaintiff has not put forth any eviden ce supporting his claim that Motiva’s stated reason for his term ination is m erely pretext and that, instead, Motiva intentionally discrim inated against him on the basis of race when it term inated his em ploym ent. 75 The Court m ust also consider whether McNealy can show that his race was a m otivating factor in his term ination, often referred to as the m ixed-m otive alternative. “The Fifth Circuit has not decided whether the m ixed-m otives alternative is available to § 198 1 plaintiffs.” 76 Assum ing that McNealy m ay avail him self of the m ixed-m otive approach, McNealy still m ust offer sufficient eviden ce to create a genuine issue of fact with respect to whether the em ployer’s reason, although true, is but one of the reasons for its conduct, another of which was discrim ination. 77 Although the Suprem e Court, in Desert Palace, Inc. v. Costa, explained that a plaintiff does not face a heightened evidentiary burden in m ixed-m otive cases, a plaintiff m ust still put forth evidence, which m ay be circum stantial, dem onstrating by a preponderance of the evidence that discrim ination was a m otivating factor in the adverse em ploym ent decision. 78 McNealy has not put forth any evidence supporting his claim that the reason for his term ination was, at least in part, racial and that Motiva’s stated reason for his term in ation is 74 Grim es v . Texas Dept. of Mental Health & Mental Retardation, 10 2 F.3d 137, 140 (5th Cir. 1996). The Court requested and thoroughly reviewed a com plete copy of McNealy’s deposition , which was attached to the Court’s May 26, 20 17 Order and Reasons regarding the Union Defendants’ Motions for Sum m ary J udgm ent. See R. Docs. 341-1, 341-2. 76 See, e.g., Alm eida v. Solis, 20 15 WL 4638 284, at *4 (S.D. Tex. Aug 4, 20 15) (collecting cases)). 77 See, e.g., Richardson v. Monitronics Intern . Inc., 464 F.3d 327, 333 (5th Cir. 20 0 5) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 30 5, 312 (5th Cir. 20 0 4)). 78 See Desert Palace, Inc. v. Costa, 539 U.S. 90 (20 0 3). 75 13 pretextual. The Court finds that McNealy has failed to satisfy his burden of dem onstrating that the actions leadin g to the term ination of his em ploym ent were, even in part, racially m otivated. As a result, Motiva’s m otion for sum m ary judgm ent with respect to Plaintiff’s Section 1981 claim s regarding the term in ation of his em ploym ent relationship with Motiva is granted. b. Retaliation In his opposition to Motiva’s m otion for sum m ary judgm ent on his retaliation claim , McNealy argues only that his being placed on non-occupational disability status was in retaliation for his com plaints regarding alleged racial discrim ination and hostile work environm ent. 79 Section 1981 retaliation claim s are analyzed under the McDon nell-Douglas fram ework. 80 As the Fifth Circuit explained in Davis: To present a prim a facie case of retaliation under Title VII or § 1981, a plaintiff m ust show that: (1) he engaged in an activity protected by Title VII; (2) he was subjected to an adverse em ploym ent action; and (3) a causal link exists between the protected activity and the adverse em ploym ent action. 81 “If a plaintiff succeeds in m aking a prim a facie case, the burden then shifts to the defendants to proffer a legitim ate rationale for the underlying the [sic] em ploym ent action.”82 “If the defendant m akes this showing, the burden shifts back to the plaintiff to dem onstrate that the em ployer’s articulated reason for the em ploym ent action was a pretext for retaliation.”83 79 R. Doc. 310 -1 at 13. Zatrow v. Houston Auto Im ports Green w ay Ltd., 78 9 F.3d 533, 564 (5th Cir. 20 15). 81 Davis, 383 F.3d at 319 (citing Banks v . E. Baton Rouge Par. Sch. Bd., 320 F.3d 570 , 575 (5th Cir. 20 0 3); Foley v. Univ. of Houston Sy s., 324 F.3d 310 , 216 (5th Cir. 20 0 3)). 82 Id. (citing Aldrup v. Caldera, 274 F.3d 28 2, 286 (5th Cir. 20 0 1)). 83 Id. (citing Aldrup, 274 F.3d at 286). 80 14 Motiva argues McNealy is unable to m ake a prim a facie case because he did not engage in a protected activity. 84 Motiva argues that, although “McNealy reported certain workplace incidents during m eetings with Motiva m anagem ent, he never com plain ed of discrim ination.”85 As a result, Motiva argues that “during his em ploym ent with Motiva, McNealy did not oppose any practice m ade unlawful by Title VII, because that statute only protects claim s of discrim ination.”86 Motiva further argues that, even if McNealy did com plain of discrim ination, his belief that he was discrim inated again st was not reasonable. 87 The Fifth Circuit has required that, in order to satisfy the first prong of the prim a facie analysis, the plaintiff m ust dem onstrate that he had “at least a ‘reasonable belief’ that the practices [he] opposed were unlawful.” 88 Motiva argues that because McNealy cannot iden tify any objective evidence of discrim ination to support his subjective beliefs, it is clear he did not engage in a protected activity. 89 An em ployee has engaged in protected activity if he has (1) opposed an y practice m ade an unlawful em ploym ent practice by the statute, or (2) m ade a charge, testified, assisted, or participated in any m anner in a Title VII investigation, proceeding, or hearing. 90 McNealy does not argue that he m ade a charge or participated in a Title VII Proceeding. As a result, the Court m ust determ ine whether he opposed a practice m ade an unlawful em ploym ent practice by statute. Motiva adm its that McNealy m entioned the 84 R. Doc. 275-1 at 12. R. Doc. 275-1 at 12 (citin g R. Doc. 275-5 at ¶ 24 (Declaration of Mary Snyder); R. Doc. 275-6 at ¶ 10 (Declaration of Brandon Dufrene)) (em phasis in original). 86 Id. 87 Id. at 13. 88 Long v. Eastfield Coll., 8 8 F.3d 30 0 , 30 4 (5th Cir. 1996). 89 R. Doc. 275-1 at 13. 90 Allem an v. Louisiana Dept. of Econ. Dev., 698 F. Supp. 2d. 644, 663-64 (M.D. La. 20 10 ) (citing Grim es, 10 2 F.3d at 140 )). 85 15 crane box, truck-wrapping and goosing incidents to Brandon Dufrene and David Naquin on Novem ber 10 , 20 11. 91 Motiva, however, offers the sworn declarations of Brendan Dufrene and Mary Snyder in which they testify that at the Novem ber 10 , 20 11 m eeting McNealy (1) did not claim that any of these incidents was racially m otivated or (2) m ake any other com plaints of racial discrim ination. 92 McNealy argues that before the Novem ber 10 , 20 11 m eeting he com plained to the form er Union President, Arm ond Thom atis, “about the hostile work environm ent including but not lim ited to Perry Montz and George Kestler’s harassm ent and racial discrim ination.”93 For support, McNealy cites only to Motiva’s summ ary of investigative findings, an unsworn docum ent, including notes from the interview of Perry Montz. 94 The Montz interview n otes state only that Arm ond Thom atis said McNealy’s co-em ployees n eeded to quit teasing him ; 95 the interview notes provide no evidence that McNealy com plained to Thom atis or others about racial discrim ination. Neither do the other cited portions of the investigative report provide evidence that McNealy com plained of racial discrim ination. 96 McNealy did testify at his deposition that he com plained about the discrim ination during the February 29, 20 12 m eeting with Snyder, Dufrene, Ledet and Casey, however, McNealy provided no eviden ce other than his own testim ony. 97 Giving McNealy the benefit of the doubt, and assum ing he did engage in a protected activity and is able to m eet the two other elem ents of his prim a facie case, the burden shifts to Motiva to articulate a legitim ate, non-discrim in atory reason for the 91 R. Doc. 275-2 at ¶ 19. R. Docs. 275-6 at 2; 275-5 at 3. 93 R. Doc. 310 -2 at 3. 94 R. Doc. 310 -3 at 11 (citing R. Doc. 310 -4 at 2 ln. 1-11). 95 Id. at 1-2. 96 R. Doc. 310 -2 at 6 (citing R. Doc. 310 -4 at 3 ln. 31-32, 7 ln. 3-13) 97 See R. Doc. 341-1 at 131. 92 16 adverse em ploym ent action – his being placed on non-occupational disability leave. “This burden is one of production, not persuasion; it ‘can involve no credibility assessm ent.’”98 “To m eet this burden, the em ployer m ust show, through adm issible evidence, a legally sufficient reason for not hiring the plaintiff.” 99 The Fifth Circuit has explain ed that, although the burden at the second stage of the burden-shifting analysis does not require m uch, a Defendant m ust provide “enough detail to enable [a plaintiff] to attem pt to show pretext.” 10 0 Motiva has stated that, because McNealy did not return to work after his FMLA leave, he was placed on disability leave. 10 1 Motiva sent a letter to McNealy on February 6, 20 14 inform ing him that he had been placed on non-occupational disability leave on February 29, 20 12 as a result of m edical docum entation it received from his doctor. 10 2 The Court finds that Motiva’s articulated non-discrim inatory reason provides enough detail to enable McNealy to attem pt to show pretext. Because Motiva has articulated a non-discrim inatory reason for its decision to place him on non-occupational disability leave, the burden shifts to McNealy to prove that Motiva’s stated reason is pretext. As explained above, “To carry that burden, the plaintiff m ust produce substantial eviden ce of pretext.”10 3 “Evidence that the proffered reason is unworthy of credence m ust be enough to support a reasonable inference that the proffered reason is false; a m ere shadow of doubt is insufficient.”10 4 McNealy argues that Motiva has stated only pretextual, bad faith reasons for its decision to classify his injuries 98 Reeves, 530 U.S. at 142 (quoting St. Mary ’s Honor Cen ter v. Hicks, 50 9 U.S. 50 2, 50 9 (1993)). In Bright v. GB Bioscience In c., 30 5 F. App’x 197, 20 2 (5th Cir. 20 0 8 ) (citin g Tex. Dep’t of Cm ty . Affairs v. Burdine, 450 U.S. 248, 255 (1981)). The Fifth Circuit has explicitly held that the standard articulated in Burdine applies to retaliation cases. See Rubinstein v. Adm inistrators of Tulane Educ. Fund, 218 F.3d 392, 40 2 (5th Cir. 20 0 0 ). 10 0 Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 20 0 4). 10 1 R. Doc. 275 at 7 (citin g R. Doc. 275-5 at ¶ 30 . 10 2 R. Doc. 275-8 at 1. 10 3 See Auguster, 249 F.3d at 40 2-0 3. 10 4 Id. at 40 3 (quotin g Bauer, 169 F.3d at 967). 99 17 as non-occupational. 10 5 McNealy cites, without explanation or argum ent, to his own m edical records, his term ination notice, an d docum ents related to his social security an d workers’ com pensation claim s. 10 6 None of the evidence referenced by the Plaintiff provides any support for his argum ent that (1) Motiva’s reason was pretextual and that, in reality, Motiva retaliated against him when it placed him on non-occupational disability leave, or (2) that Motiva’s articulated non-discrim inatory reason was false. Because McNealy provided no evidence to show of pretext, he has failed to satisfy his burden. Motiva’s m otion for sum m ary judgm ent dism issing Plaintiff’s retaliation claim s under Section 1981 is granted. c. Failure to Prom ote Plaintiff alleges a cause of action under Section 1981 for failure to prom ote. He claim s “white em ployees sim ilarly situated as he were appointed / prom oted to [an] upper echelon job position on the night shift without allowing him to com pete for the position.”10 7 McNealy’s failure-to-prom ote claim also is analyzed under the McDonnellDouglas fram ework. 10 8 A Plaintiff establishes a prim a facie case for failure to prom ote by dem onstrating “(1) he belongs to a protected class; (2) he applied and was qualified for the job sought; (3) despite his qualifications, he was rejected; and (4) after his rejection, 10 5 R. Doc. 310 -3 at ¶ 37. See id. (citing R. Docs. 310 -5, 310 -6, 310 -7, 310 -9, 310 -13. 10 7 R. Doc. 260 at ¶ 13. 10 8 Manning v. Chev ron Chem . Co., LLC, 332 F.3d 874, 8 8 1 (5th Cir. 20 0 3). See also, e.g., W alton v. Vilsack, 20 11 WL 3489967, at *5 (E.D. La. Aug. 10 , 20 11). 10 6 18 the position was filled by som eone not in the protected class.”10 9 Motiva argues “McNealy cannot establish the second, third, and fourth elem ents of his prim a facie case.”110 The secon d elem ent requires initially that the Plaintiff apply for the position. The Fifth Circuit has explained that “[f]ailure to apply for a disputed prom otion will bar a ‘failure to prom ote’ claim absent a showing that such an application would have been a futile gesture.” 111 The Fifth Circuit has explained that the “futile gesture” exception “requires a showing that the applicant . . . was deterred by a known and consistently enforced policy of discrim ination.”112 Motiva points out that, “In his deposition, McNealy identified two job positions that are the subject of this claim : inspector and forem an. It is undisputed that McNealy did not apply for these alleged prom otions.” 113 In his deposition, McNealy testified that, to his knowledge, none of the other em ployees who were prom oted actually applied for their positions. 114 Instead, McNealy testified that his supervisor “just picked who he wanted.”115 Although McNealy adm its he never asked his supervisor, Brandon Dufrene, to be considered for the positions, 116 McNealy also testified, 10 9 See, e.g., W alton, 20 11 WL 3489967, at *5 (quoting W alker v. Geithner, 40 0 F. App’x 914, 916 (5th Cir. 20 10 )). In its Motion for Sum m ary J udgm ent, Motiva states that the fourth elem ent of a Plaintiff’s prim a facie case is “(4) that the em ployer continued to seek or prom oted applicants with the plaintiff’s qualifications.” R. Doc. 275-1 at 15 (quoting Davis v. Dall. Area Rapid Transit, 38 3 F.3d 30 9, 317 (5th Cir. 20 0 4)). While other courts have used Motiva’s form ulation of the prim a facie elem ents for a failure-toprom ote case, Motiva’s form ulation is m ore applicable to cases in which the position in question was filled by an individual in the Plaintiff’s protected class. See Monroe v. Corpus Christi Indep. Sch. Dist., 20 0 6 WL 20 92436, at *7 (S.D. Tex. J uly 26, 20 0 6) (citing N ieto v. L & H Packaging Co., 10 8 F.3d 621, 624 n.7 (5th Cir. 20 0 1)). As this is not the case with respect to Plaintiff’s failure-to-prom ote case, the Court finds that Motiva’s form ulation of the prim a facie elem ents is not appropriate for this case. 110 R. Doc. 275-1 at 15. 111 Irons Aircraft Serv. Int’l, Inc., 392 F. App’x 30 5, 312 (5th Cir. 20 10 ). 112 McCullough v. Houston Cnty . Texas, 297 F. App’x 282, 287 (5th Cir. 20 0 8) (alteration in original) (quotin g Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 40 6 (5th Cir. 1999)). 113 R. Doc. 275-1 at 15 (citing R. Doc. 275-3 at 44, ln. 7-17) (Excerpts of Plaintiff’s Deposition). Motiva also states that it “disputes that these positions constituted ‘prom otions’ but does not raise this issue on sum m ary judgm ent.” Id. at 15 n.72. 114 See R. Doc. 275-3 at 45. 115 Id. at 45, ln. 14-15. 116 Id. at 45, ln. 10 -13. 19 “as far as I’m concerned, I didn’t know – nobody else did.”117 Motiva provides no evidence contradicting these statem ents. “The elem ents of a plaintiff’s prim a facie case necessarily vary depen ding on the particular facts of each case, an d the nature of the claim .”118 Based on the facts of this case, the Court finds the requirem ent that a plaintiff apply for a disputed prom otion is not applicable because any attem pt by McNealy to do so would have been futile. Further, “[o]verall, the burden of establishing a prim a facie case is not onerous.”119 The secon d part of the second elem ent requires that the Plaintiff dem onstrate that he was qualified for the position. McNealy provides no eviden ce he was qualified for the positions of inspector or forem an. McNealy has not satisfied this portion of the second elem ent. As a result, he cannot satisfy the third elem ent which requires him to show he was rejected despite his qualifications. McNealy, however, has ostensibly m et the fourth elem ent through the production of his affidavit in which he states that the inspector and forem an positions were assigned to white em ployees. 120 Although the overall burden of establishing a prim a facie case is not onerous, McNealy has failed to establish the secon d and third elem ents of his prim a facie case. Motiva’s m otion for sum m ary judgm ent dism issing Plaintiff’s failure-to-prom ote claim is granted as a result of Plaintiff’s failure to establish his prim a facie case. 117 Id. at 45, ln. 13-14. LeBlanc v. Greater Baton Rouge Port Com ’n, 676 F. Supp. 2d 460 , 470 (M.D. La. 20 0 9) (citin g La Pierre v. Benson N issan, Inc., 86 F.3d 444, 448 (5th Cir. 1996); McDon nell Douglas Corp. v. Green, 411 U.S. 792, 80 2 n.13 (1973)). 119 Bright v. GB Bioscience In c., 30 5 F. App’x 197, 20 2 (5th Cir. 20 0 8) (citin g Texas Dep’t of Cm ty . Affairs v. Burdine, 450 U.S. 248, 253 (1981)). 120 R. Doc. 310 -13 at ¶ 25. 118 20 d. Hostile Work Environm ent Although McNealy does not specifically address the bases for his hostile work environm ent claim , it appears his claim is based on the crane, truck and goosing incidents as well as the alleged use of racially-discrim inatory com m ents in the workplace. 121 To establish a prim a facie case of a hostile work environm ent, the Fifth Circuit has explain ed a plaintiff m ust show: (1) [He] belongs to a protected group; (2) [he] was subjected to unwelcom ed harassm ent; (3) the harassm ent com plained of was based on race; (4) the harassm ent com plained of affected a term , condition, or privilege of em ploym ent; [and] (5) the em ployer knew or should have known of the harassm ent in question and failed to take prom pt rem edial action. 122 Motiva argues “Sum m ary judgm ent is appropriate because McNealy can not establish the third and fifth elem ents of his claim .”123 The Court will not exam ine whether McNealy has established the third elem ent of his prim a facie case because he has failed to establish the fifth elem ent of a prim a facie hostile work environm ent claim which requires that a plaintiff show his em ployer failed to take prom pt rem edial action. 124 Motiva argues it “im m ediately initiated an in vestigation when McNealy first reported the incidents to m anagem ent on Novem ber 10 , 20 11.”125 It is uncontested that Dufrene and Naquin im m ediately reported Plaintiff’s claim s to Mary Snyder in Motiva’s hum an resources departm ent following their Novem ber 10 , 20 11 m eeting with McNealy. 126 It is also uncontested that Motiva, over the next two weeks, interviewed Perry Montz, George 121 See R. Doc. 260 at 7. Mendoza v. Helicpoter, 548 F. App’x 127, 128-29 (5th Cir. 20 13) (alterations in original) (quotin g Ram sey v . Henderson, 286 F.3d 264, 268 (5th Cir. 20 0 2)); see also Hudson v. Cleco Corp., 539 F. App’x 615, 619-20 (5th Cir. 20 13). 123 R. Doc. 275-1 at 17. 124 R. Doc. 275-1 at 18. 125 Id. 126 R. Doc. 275-2 at ¶ 22; R. Doc. 310 -3 at ¶ 22. 122 21 Kestler, Matt Loque, Bill LeBouef, Pat Meche and David Mendel regarding Plaintiff’s allegations. 127 It is also uncontested that following its investigation, Motiva reprim anded George Kestler and Matt Loque. 128 The Fifth Circuit has explained, “What constitutes prom pt rem edial action is a fact-specific inquiry and ‘not every response by an em ployer will be sufficient’ to absolve the em ployer of liability.” 129 “An em ployer m ay be liable despite having taken rem edial steps if the plaintiff can establish that the em ployer’s response was not reasonably calculated to halt the harassm ent.” 130 In Carm on v. Lubrizol, the Fifth Circuit held that an em ployer took prom pt rem edial action as a m atter of law after finding that the em ployer “took the allegations seriously, it conducted prom pt and thorough investigations, and it im m ediately im plem ented rem edial and disciplinary m easures based on the results of such investigations.”131 . Motiva has produced the sworn declarations of Mary Snyder, 132 Brandon Dufrene, 133 and disciplinary docum ents regarding Plaintiff’s allegations to docum ent proving that a thorough investigation was undertaken and disciplinary m easures were im posed. 134 McNealy has not put forth any eviden ce creating a genuine issue of m aterial fact as to whether Motiva failed to take prom pt rem edial action or that Motiva’s actions were not reasonably calculated to halt the harassm ent. 127 R. Doc. 275-2 at ¶ 28; R. Doc. 310 -3 at ¶ 28 . R. Doc. 275-2 at ¶ 29; R. Doc. 310 -3 at ¶ 29. Although Plaintiff states that he den ies this fact, it is clear that Plaintiff denies only Motiva’s assertion that Kestler and Loque for form ally reprim anded. See id. Plaintiff states that both Kestler and Loque were only given oral rem inders. Motiva has attached, however, copies of letters, sign ed by Tim Casey, George Kestler and Matt Loque, docum enting that they were given oral rem inders for their con duct. See R. Doc. 275-7. 129 W illiam s-Boldw are v. Den ton Cty ., Tex., 741 F.3d 635, 640 (5th Cir. 20 14). 130 Id. (citations om itted). 131 Id. (quotin g Carm on v. Lubrizol Corp., 17 F.3d 791, 795 (5th Cir. 1994). 132 R. Doc. 275-5. 133 R. Doc. 275-6, 134 R. Doc. 275-7. 128 22 Motiva’s m otion for sum m ary judgm ent dism issing McNealy’s hostile work environm ent claim s is granted. II. Race-Based Conspiracy Claim s In his Fourth Am ended Com plaint, Plaintiff alleges Motiva: Conspired by force, intim idation, and threats to deprive McNealy of his right to redress his job-related grievances, to be protected from harm and valance [sic] in the work place, to be protected from harassm ent in the work place, to protect McNealy from the hostile work environm ent, to discrim inate against McNealy based on his race, and to term inate McNealy from his em ploym ent. 135 In addition, McNealy clarified at his deposition that his conspiracy claim s are based on the sam e alleged conduct that violated his rights under Title VII and Section 1981. 136 Motiva argues, “With this needed clarification, McNealy’s conspiracy claim s should be dism issed because ‘§ 1985(3) m ay not be invoked to redress violations of Title VII.’”137 Motiva also argues McNealy’s Section 1985 claim s should be dism issed because the only alleged target of this race-based conspiracy is McNealy him self and “[i]n order to establish a Section 1985 conspiracy, however, McNealy m ust present eviden ce that Motiva discrim inated against African-Am ericans as a class.”138 In N ovotny , the Suprem e Court explained, “Section 1985(3) . . . creates no rights. It is a purely rem edial statute, providing a civil cause of action when som e otherwise defined federal right-to equal protection of the laws or equal privileges and im m unities under the laws – is breached by a conspiracy in the m anner defined by the section.”139 As the court in Stew art v. Com m ercial Vehicles of South Florida, Inc., a case out of the 135 R. Doc. 260 at ¶ 72. R. Doc. 341-1 at 189. 137 R. Doc. 275-1 at 18-19 (quoting Great Am . Fed. Sav. & Loan Ass’n v. N ovotny , 442 U.S. 366, 378 (1979)). 138 Id. at 19 (em phasis is original) (citin g Harris v . Travis, 55 F. App’x 716, at *3 (5th Cir. 20 0 2)). 139 N ovotny , 442 U.S. at 376 (em phasis in original) (holding that a “deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985(3).”). 136 23 Middle District of Florida, explained, “Although holding that a deprivation of a right created by Title VII cannot form the basis of a claim under § 1985(3), N ovotny declined to decide ‘whether § 1985(3) creates a rem edy for statutory rights other than those fundam ental rights derived from the Constitution.’” 140 “N ovotny ’s reasoning (that allowing a claim under Section 1985(3) based on a violation of Title VII would im pair the effectiveness of the enforcem ent an d conciliation schem e created by Congress for claim s under Title VII) does not directly apply to a statutory right,” such as the right to m ake and enforce contracts under 42 U.S.C. § 1981(a). 141 “Accordingly, whether a deprivation of a right secured by Section 1981(a) can be the basis of a Section 1985(3) conspiracy rem ains unsettled.”142 “However, courts have plausibly concluded that, because a claim for race discrim ination in em ploy m ent brought under Title VII cannot form the basis for a § 198 5(3) conspiracy claim , the sam e claim should not survive ‘sim ply because it is brought under § 1981.’”143 “More im portant, as Jenkins notes, J ustice Stevens’s concurrence in N ovotny provides powerful support for precluding a Section 1985(3) claim based on a deprivation of rights guaranteed by Section 1981(a).”144 As the Stew art court correctly notes, “The congressional concern with redressing constitutional violations strongly suggests that Section 1985(3) was not ‘intended to provide a rem edy for the violations of statutory rights-let alone rights created by statutes that had not yet been enacted.’”145 Accordingly, the Stew art court held, “the weight of persuasive authority supports the view 140 2009 WL 2025162, at *2 (M.D. Fla. J uly 9, 20 0 9), aff’d, 366 F. App’x 41 (11th Cir. 20 10 ). 141 Id. 142 Id. (collectin g cases). Id. (em phasis added) (quoting Jenkins v . Arcade Bldg. Maint., 44 F. Supp. 2d 524, 532-33 (S.D.N.Y. 1999)). 144 Id. (quoting J ustice Steven s’s concurrence that “the Congress which enacted both [Sections 1 and 2 of the Civil Rights Act of 1971] was concern ed with providing federal rem edies for the deprivations of rights protected by the Constitution and, in particular, the newly ratified Fourteenth Am endm ent.”). 145 Id. (quotin g N ovotny , 442 U.S. at 385 (Stevens, J ., con curring)). 143 24 that Section 1985(3) provides no rem edy for a deprivation of rights protected by Section 1981(a).”146 As McNealy’s conspiracy claim s pursuant to Section 198 5(3) relate solely to his em ploym ent discrim ination claim s pursuant to Section 1981, Motiva’s m otion for sum m ary judgm ent dism issing Plaintiff’s Section 1985 claim s is granted. Plaintiff has also alleged a claim under 42 U.S.C. § 1986. However, because Plaintiff has failed to allege a proper Section 1985 claim , his Section 1986 m ust be dism issed as well. 147 Accordingly, Motiva’s m otion for sum m ary judgm ent dism issing Plaintiff’s Section 1986 claim s is granted. III. Section 30 1 of the Labor Managem ent Relations Act Plaintiff alleges, pursuant to Section 30 1 of the Labor Managem ent Relations Act (“LMRA”), Motiva’s “total departure from the provisions stipulated [under the collective bargaining agreem ent] dam aged Newton McNealy. The failure to adhere and enforce and protect his rights and interests under the collective bargain ing agreem ent constitute a breach of contract, duty and trust in a discrim inatory m anner.”148 Motiva first argues that McNealy has not exhausted the grievance and arbitration procedure set forth in the collective bargaining agreem ent as is required under Section 30 1. 149 The Fifth Circuit has clearly explained that “[i]f the arbitration and grievan ce procedure is the exclusive and final rem edy for breach of the collective bargaining agreem ent, the em ployee m ay not sue his em ployer under § 30 1 until he has exhausted 146 Id. See N ew berry v. East Texas State Univ., 161 F.3d 276, 281 n.3 (5th Cir. 1998) (“If the § 1985 claim fails, so m ust the § 1986 claim .”) See also, Bry an v. City of Madison, Miss., 213 F.3d 267, 276 (5th Cir. 20 0 0 ) (“And because a valid § 198 5 claim is a prerequisite to a § 1986 claim , that claim is also invalid.”)). 148 R. Doc. 260 at ¶ 114. Plaintiff’s claim appears to be for breach of a collective bargain ing agreem ent pursuant to 29 U.S.C. § 185(a). 149 R. Doc. 275-1 at 20 . 147 25 the procedure.” 150 Motiva provides the section of the collective bargaining agreem ent providing a grievance and arbitration procedure that is the exclusive and final rem edy for “[a]ll com plaints arising out of the application or interpretation of’” the agreem ent. 151 It is undisputed that McNealy has not followed the required four-step grievance procedure and that he did not subm it his claim to arbitration. 152 McNealy did n ot address Motiva’s argum ent in his Opposition to Motiva’s m otion for sum m ary judgm ent. 153 The Fifth Circuit has recognized the following three exceptions to the exhaustion requirem ent: (1) the union wrongfully refuses to process the em ployee’s grievan ce, thus violating its duty of fair representation; (2) the em ployer’s conduct am ounts a repudiation of the rem edial procedures specified in the contract; (3) exhaustion of contractual rem edies would be futile because the aggrieved em ployee would have to subm it his claim to a group which is in large part chosen by the em ployer and union against whom his real com plaint is m ade. 154 Motiva argues McNealy cannot dem onstrate any of the recognized exceptions apply here. 155 The only exceptions that could possibly apply is the futility exception. 156 The Fifth Circuit has held, however, that the availability of a neutral arbitrator refutes a futility argum ent as a m atter of law. 157 Section 10 .0 2 of the Collective 150 Daigle v. Gulf State Utils. Co., Local Union N um ber 2286, 794 F.2d 974, 977 (5th Cir. 198 6). Doc. 275-10 at 2. 152 R. Doc. 275-2 at ¶ 45 (citin g R. Doc. 275-5 at ¶ 36); R. Doc. 310 -3 at ¶ 45. Although McNealy states that he denies this statem ent of fact, the Plaintiff does not provide any evidentiary support or explanation for his den ial. For a further analysis regarding the Court’s finding that the Plaintiff did not exhaust his rem edies under the collective bargain ing agreem ent, see the Court’s Order and Reasons regarding Defendants Un ited Steel Workers Un ion, Local 750 and Un ited Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Un ion AFL-CIO’s Motions for Sum m ary J udgm ent. R. Doc. 341 at 14-17. 153 See R. Doc. 310 . 154 See Rabalais v. Dresser In dus., Inc., 566 F.2d 518 , 519 (5th Cir. 1978) (citations om itted). 155 R. Doc. 275-1 at 20 n .89. 156 To the extent Plaintiff attem pts to argue that the Local Union wrongfully refused to process his grievance, the Court has already concluded that the Plaintiff did not file a grievance with the Local Union. See R. Doc. 341 at 15. 157 Parham v. Carrier Corp., 9 F.3d 383 (5th Cir. 1993). 151 R. 26 Bargain ing Agreem ent clearly provides an arbitration option in the circum stance that the union m em ber’s com plaint is not resolved on an acceptable basis by other m eans. 158 Because the Plaintiff cannot prove an exception to the exhaustion requirem ent applies, Motiva’s m otion for sum m ary judgm ent dism issing Plaintiff’s claim s under Section 30 1 of the Labor Managem ent Relations Act is granted. IV. Section 158(a) of the National Labor Relations Act Plaintiff, in his Fourth Am ended Com plaint, alleges Motiva “com m itted an unfair labor practice” by failing to prom ote Plaintiff, term inating his em ploym ent relationship, and when it “restrained/ coerced McNealy in the exercise of his rights under” the National Labor Relations Act (“NLRA”). 159 As Motiva correctly identifies, however, “[T]here is no private cause of action against em ploy ers to prevent and rem edy unfair labor practices under the NLRA; enforcem ent is left, instead to the [National Labor Relations] Board.”160 Accordingly, Motiva’s m otion for sum m ary judgm ent dism issing Plaintiff’s claim s under the NLRA is granted. V. Federal Claim s Against Shell Oil Com pany and Shell Chem ical LP Plaintiff has alleged the sam e claim s against Shell Oil Com pany (“Shell Oil”) an d Shell Chem ical LP (“Shell Chem ical”) (collectively the “Shell Defen dants”). 161 Shell Oil and Shell Chem ical each filed m otions for sum m ary judgm ent. 162 Plaintiff opposes the Shell Defendants’ m otions. 163 For the reason s set forth above, the Shell Defendants’ m otions for sum m ary judgm ent are granted with respect to Plaintiff’s federal claim s 158 R. Doc. 275-10 at 4. R. Doc. 260 at ¶¶ 10 6-10 8 160 R. Doc 275-1 at 21 (alterations and em phasis in original) (quotin g D.R. Horton, Inc. v. N .L.R.B., 737 F.3d 344, 360 n .9 (5th Cir. 20 13)). 161 See R. Doc. 260 ; R. Doc. 245. 162 R. Docs. 278, 279. 163 R. Docs. 30 9, 312. 159 27 pursuant to Sections 1981, 1985(3), 1986, Section 30 1 of the LMRA, and Section 158(a) of the NLRA. VI. State Law Claim s Plaintiff has also alleged state law tort claim s and a state law claim s for retaliatory discharge against Motiva and the Shell Defendants. 164 In its Order with respect to the various m otions to dism iss, the Court explain ed: McNealy’s other claim s against the Defendants are state law claim s over which the Court possess only supplem ental jurisdiction. Title 28, United States Code, Section 1367(c), provides that district courts m ay decline to exercise supplem ental jurisdiction over state law claim s if, inter alia, “the district court dism isses all claim s over which it has original jurisdiction.” Because the Court converted certain of Defendants’ m otions to sum m ary judgm ent m otions, the Court defers ruling on whether to exercise supplem ental subject m atter jurisdiction on McNealy’s state claim s until after the Court rules on the m otions for sum m ary judgm ent. 165 As the Court has now ruled on and granted Motiva and the Shell Defendants’ m otions for sum m ary judgm ent with respect to all federal claim s raised against these Defendants, the Court declin es to exercise supplem ental jurisdiction over the rem aining state law claim s pursuant to Title 28 , United States Code, Section 1367(c). The rem aining state law claim s are dism issed without prejudice pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. VII. Plaintiff’s Allegations of Discovery Violations In his oppositions to Motiva’s and the Shell Defendants’ Motions for Sum m ary J udgm ent, Plaintiff argues these Defendants have “failed to properly answer or 164 165 See R. Doc. 20 9-1 at 2. R. Doc. 237 at 38. 28 incom pletely and evasively responded to interrogator[ies], refused to produce discoverable inform ation propounded in request[s] for production of docum ents, and com m itted perjury in responding to request[s] for adm issions in contravention.” 166 Plaintiff’s com plaints about alleged discovery violations should not be addressed in an opposition to a m otion for sum m ary judgm ent. If true, the com plaints should have been raised in a tim ely Federal Rule of Civil Procedure 37 m otion to com pel. The Plaintiff did not request additional tim e for discovery under Federal Rule of Civil Procedure 56(d). CON CLU SION For the foregoing reasons; IT IS ORD ERED that Motiva’s and the Shell Defendants’ Motions for Sum m ary J udgm ent 167 dism issing all of Plaintiff’s claim s with prejudice is GRAN TED IN PART and D EN IED IN PART. The Defendants’ Motions for Sum m ary J udgm ent are granted with respect to Plaintiff’s federal claim s. The Defendants’ m otions are den ied to the exten t the Defendants request that Plaintiff’s state law claim s be dism issed with prejudice. IT IS FU RTH ER ORD ERED that Plaintiff’s Section 1981, 1985(2) and (3), 198 6, and 141 claim s are hereby D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that Plaintiff’s state law claim s are D ISMISSED W ITH OU T PREJU D ICE pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. N e w Orle a n s , Lo u is ian a, th is 5th d ay o f Ju n e , 2 0 17. ____________ _______ __________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 166 167 R. Docs. 30 9-1 at 25-26, 310 -1 at 13-14, 312-1 at 20 -22. R. Docs. 275, 278 , 279. 29

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