Pierce v. Kellogg Brown and Root, No. 2:2015cv06485 - Document 86 (E.D. La. 2017)
Court Description: ORDER AND REASONS regarding 70 Motion for Summary Judgment. For the foregoing reasons, defendant's motion for summary judgment is GRANTED. Plaintiff's complaint is DISMISSED. Signed by Judge Sarah S. Vance on 11/6/2017. (cg)
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Pierce v. Kellogg Brown and Root Doc. 86 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DONALD PIERCE CIVIL ACTION VERSUS NO. 15-6485 KELLOGG BROWN & ROOT, INC. SECTION “R” (3) ORD ER AN D REASON S Before the Court is defendant’s m otion for sum mary judgm ent on plaintiff’s claim that he was discharged because of his race. 1 The Court finds that plaintiff has failed to raise an issue of m aterial fact that he was treated less favorably than sim ilarly situated em ployees of a different race, and therefore grants the m otion. I. BACKGROU N D Plaintiff brings a claim of racial discrim ination in violation of Title VII of the Civil Rights Act. 2 Plaintiff Donald Pierce is an African-Am erican welder. 3 On April 29, 20 15, Defendant Kellogg Brown & Root, Inc. hired plaintiff as a com bination pipe welder on a construction project in 1 2 3 R. Doc. 70 . R. Doc. 1. Id. at 1 ¶ 2. Dockets.Justia.com Waggam an, Louisiana. 4 Plaintiff was hired as an at-will em ployee. 5 Plaintiff worked on the night shift, and he asserts that he was the only AfricanAm erican on his five-person night shift crew. 6 The night shift pipe foremen, welding forem an, and general forem an were white. 7 At the tim e plaintiff was hired, defendant required new welders to pass three welding tests on carbon, chrome, and flux core. 8 As a condition of continued em ploym ent, defendant also required that a new welder’s first two welds on the project, known as production welds, pass x-ray exam ination. 9 Plaintiff passed his three welding tests and his two production welds satisfied x-ray exam ination. 10 But plaintiff was discharged after problems with two subsequent welds, referred to in the pleadings as the Chrom e Weld and the Underground Weld. 11 A. Ch ro m e W e ld The Chrome Weld involved a heavy-walled chrom e or stainless pipe intended to carry high pressure steam . 12 A white welder, Wiley Hinton, J r., 4 5 6 7 8 9 10 11 12 R. Doc. 70 -3 at 1-2 ¶¶ 2-5; R. Doc. 74-1 at 2 ¶¶ 2-5. R. Doc. 70 -3 at 2 ¶ 6; R. Doc. 74-1 at 2 ¶ 6. R. Doc. 74-1 at 2 ¶ 5. R. Doc. 70 -3 at 3-4 ¶¶ 14-18; R. Doc. 74-1 at 3-4 ¶¶ 15-18. R. Doc. 70 -3 at 2 ¶ 7; R. Doc. 74-1 at 2 ¶ 7. R. Doc. 70 -3 at 2-3 ¶¶ 9-11; R. Doc. 74-1 at 2-3 ¶¶ 9-11. R. Doc. 70 -3 at 2-3 ¶¶ 8-11; R. Doc. 74-1 at 2-3 ¶¶ 8-11. R. Doc. 70 -1 at 2; R. Doc. 74. R. Doc. 70 -3 at 4 ¶ 21; R. Doc. 74-1 at 5 ¶ 21. 2 began welding the Chrom e Weld with the wrong filler m aterial. 13 The parties disagree whether the welding foreman, J ackie Wilson, or one of the pipe foremen, Lewis “Peyton” Travis, shared responsibility for the use of the incorrect filler m aterial. 14 The erroneous filler material had to be cut out by a third-party contractor. 15 In response to this error, the night shift superintendent, Keith Kingsland, testified that he instructed Wilson to tell the welders that they had to do a better job on the Chrom e Weld going forward. 16 Plaintiff was then assigned to com plete the Chrom e Weld, and he worked on this weld for three nights. 17 The welding specifications for the Chrom e Weld require that the pipe be pre-heated to a certain tem perature during the welding process to prevent the weld from cracking. 18 A thirdparty contractor, Phoenix Services, provided heat treatment services on the project. 19 13 Defendant’s welding procedure specification stated that the R. Doc. 70 -3 at 4 ¶ 22; R. Doc. 74-1 at 5 ¶ 22. Defendant states that Wilson issued Hinton the wrong filler m aterial. R. Doc. 70 -3 at 4 ¶ 22. Plaintiff asserts that Travis, not Wilson, m ade the m istake. R. Doc. 74-1 at 5 ¶ 22. Travis testified that he wrote out the rod for the wrong filler wire. See R. Doc. 70 -5 at 18 (Travis Depo. at 18). 15 R. Doc. 70 -3 at 5 ¶ 24; R. Doc. 74-1 at 5 ¶ 24. 16 R. Doc. 70 -6 at 10 -11 (Kingsland Depo. at 49-50 ); see also R. Doc. 70 3 at 5 ¶ 26; R. Doc. 74-1 at 5 ¶ 26. 17 R. Doc. 70 -3 at 5 ¶ 26; R. Doc. 74-1 at 5 ¶ 26; R. Doc. 74-2 at 10 . 18 R. Doc. 70 -3 at 5-6 ¶¶ 29-31; R. Doc. 74-1 at 6 ¶¶ 29-31. 19 R. Doc. 70 -3 at 6 ¶ 30 ; R. Doc. 74-1 at 6 ¶ 30 . 3 14 tem perature m ust be checked with “tem perature indicating crayons or an approved equal.”20 Plaintiff did not check the temperature on the Chrome Weld before he began welding, and represents that he has always relied on the third party contractor to provide heat for this type of weld. 21 After plaintiff com pleted work on the Chrom e Weld, the quality control staff reported that pre-heat treatment was not properly maintained during the welding process. 22 Plaintiff adm its that this report was m ade, but argues that pre-heat treatm ent was in fact applied. 23 Plaintiff testified that the pipe was hot during the welding process. 24 But the parties agree that, whatever the underlying cause of the problem , the Chrom e Weld was cut out for a second time and re-worked. 25 B. U n d e rgro u n d W e ld Plaintiff was later assigned to weld a carbon steel pipe, referred to by the parties as the Underground Weld. 26 Plaintiff asserts that an unknown 20 R. Doc. 74-6 at 10 . R. Doc. 70 -3 at 6 ¶ 35; R. Doc. 74-1 at 6 ¶ 35; R. Doc. 70 -4 at 51-52 (Pl.’s Depo. at 89-90 ). 22 R. Doc. 70 -3 at 7 ¶ 39; R. Doc. 74-1 at 8 ¶ 39; R. Doc. 70 -5 at 9 (Travis Depo. at 25). 23 R. Doc. 74-1 at 7-8 ¶ 39. 24 R. Doc. 70 -4 at 53 (Pl.’s Depo. at 94); R. Doc. 74 at 13-15. 25 R. Doc. 70 -3 at 7-8 ¶¶ 42-43; R. Doc. 74-1 at 8 ¶ 42. 26 R. Doc. 70 -3 at 8 ¶¶ 44-45; R. Doc. 74-1 at 8 ¶¶ 44-45. 4 21 welder worked on the Underground Weld before plaintiff began work on it. 27 Plaintiff did not check the prior welder’s work before beginning to weld. 28 Plaintiff represents that he was told to hurry up on this job and that the weld would not be tested by x-ray. 29 After plaintiff com pleted the weld, the Underground Weld was subjected to x-ray testing and failed the test. 30 C. Plain tiff’s D is ch arge On or about May 12, 20 15, Kingsland was informed by quality control em ployees that the Chrom e Weld needed to be cut out a second time. 31 Kingsland testified that he was told the pipe was not preheated. 32 According to Kingsland, he planned to suspend plaintiff and his welding forem an and to reprim and the pipe forem an in response to this m istake. 33 A few days later, Kingsland was informed by the night shift general forem an, Bobby Bloodsworth, that the Underground Weld failed an x-ray and that plaintiff 27 R. Doc. 70 -3 at 8 ¶¶ 46-47; R. Doc. 74-1 at 8-9 ¶¶ 46-47. R. Doc. 70 -3 at 8 ¶ 47; R. Doc. 74-1 at 9 ¶ 47. 29 R. Doc. 74-1 at 9 ¶ 47. Defendant admits that one supervisor, Bobby Bloodsworth, told plaintiff that the Underground Weld was not supposed to be x-rayed. See R. Doc. 74-2 at 5. 30 R. Doc. 70 -3 at 9-10 ¶¶ 49-53; R. Doc. 74-1 at 9 ¶¶ 49-53; R. Doc. 75-2 at 1; R. Doc. 77 at 5 (Knight Depo. at 40 ). 31 R. Doc. 70 -3 at 10 -11 ¶ 59; R. Doc. 74-1 at 9 ¶ 59. 32 R. Doc. 70 -6 at 9 (Kingsland Depo. at 37). 33 Id. at 27, 36 (Kingsland Depo. at 71, 83). 5 28 was the welder on both the Chrome Weld and the Underground Weld. 34 Kingsland then em ploym ent. 35 instructed Bloodsworth to term inate plaintiff’s Plaintiff was the only welder on the night shift to be term inated for substandard job perform ance between J anuary 1, 20 15, and J une 1, 20 15, after successfully com pleting qualifier welds. 36 After his term ination, plaintiff filed a charge of age and race discrim ination with the Equal Em ployment Opportunity Com m ission. 37 Plaintiff received a right-to-sue letter on October 29, 20 15. 38 On December 3, 20 15, plaintiff filed a com plaint in this Court alleging that defendant discharged him on the basis of race in violation of Title VII of the Civil Rights Act of 1964, as am ended. 39 Defendant now m oves for summ ary judgm ent. 40 34 Id. at 37-38 (Kingsland Depo. at 84-85); R. Doc. 70 -3 at 11 ¶ 61; R. Doc. 74-1 at 10 ¶ 61; 35 R. Doc. 70 -3 at 11 ¶ 62; R. Doc. 74-1 at 10 ¶ 62. 36 R. Doc. 74-2 at 6. 37 R. Doc. 1 at 1 ¶ 3. 38 Id. 39 Id. at 1-4. 40 R. Doc. 70 . 6 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “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.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-m oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went 7 uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (internal citation om itted). The nonm oving party can then defeat the motion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by pointing out that the evidence in the record is insufficient with respect to an essential element of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). 8 III. D ISCU SSION A. Re qu e s ts to Strike Both parties ask the Court to strike certain evidence. Plaintiff first requests the Court strike evidence of his bad welds at other jobs because he argues that his employm ent history is irrelevant and is inadm issible under Federal Rule of Evidence 40 4(b)(1). 41 Rule 40 4 provides that “[e]vidence of a crim e, wrong, or other act is not adm issible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 40 4(b)(1). Defendant states that it offers plaintiff’s past employm ent records not to show that he performed bad welds, but to dem onstrate that plaintiff was not qualified for his position. 42 Because the Court does not reach the issue of plaintiff’s qualifications, it need not consider plaintiff’s history with other employers. Plaintiff also requests the Court strike the transcript of a recorded call between plaintiff and a form er coworker, Tirrell William s. 43 Plaintiff adm its 41 R. Doc. 74 at 17. R. Doc. 80 at 4. Defendant cites to Federal Rule of Evidence 40 5(b), which provides that “[w]hen a person’s character or character trait is an essential elem ent of a charge, claim , or defense, the character or trait m ay also be proved by relevant specific instances of the person’s conduct.” 43 R. Doc. 74-1 at 11 ¶ 74. Plaintiff’s objection is directed at the portion of the transcript reproduced in defendant’s undisputed fact no. 74. See R. Doc. 70 -3 at 15 ¶ 74. It is not clear whether plaintiff also objects to the full transcript offered as defendant’s exhibit G-1. See R. Doc. 70 -15. 9 42 that he produced this recording, but argues that the transcript is uncertified, incom plete, and inaccurate. 44 Defendant offers a signed declaration from defense counsel that the transcript is a true and correct transcription of the recording of the conversation between plaintiff and William s. 45 Moreover, “[a]t the sum mary judgm ent stage, materials cited to support or dispute a fact need only be capable of being ‘presented in a form that would be adm issible in evidence.’” LSR Consulting, LLC v. W ells Fargo Bank, N .A., 835 F.3d 530 , 534 (5th Cir. 20 16) (quoting Fed. R. Civ. P. 56(c)(2)). The transcript therefore need not be certified. The Court has listened to the recording and finds the transcript to be accurate. The request to strike is therefore denied. But the Court further finds that the transcript is not m aterial because nothing in either the transcript or in plaintiff’s version 46 of his call with William s either creates or precludes a genuine issue of fact. Defendant requests the Court strike plaintiff’s declaration 47 as inadm issible hearsay and as a sham affidavit that contradicts plaintiff’s sworn deposition testim ony. 48 The Fifth Circuit has explained that “a plaintiff m ay not m anufacture a genuine issue of m aterial fact by subm itting 44 45 46 47 48 R. Doc. 70 -3 at 15 ¶ 73; R. Doc. 74-1 at 10 -11 ¶¶ 73-74. R. Doc. 70 -14. R. Doc. 74-1 at 12. Id. at 2-16. R. Doc. 80 at 1-2. 10 an affidavit that im peaches prior testim ony without explanation.” Doe ex rel. Doe v. Dallas Indep. School Dist., 220 F.3d 380 , 386 (5th Cir. 20 0 0 ); see also Keller v. Coastal Bend Coll., 629 F. App’x 596, 60 1 n.4 (5th Cir. 20 15) (finding that a “sham affidavit” contradicting deposition testim ony is not adm issible on summ ary judgment). Plaintiff’s declaration is combined with plaintiff’s responses to defendant’s statem ent of undisputed m aterial facts. 49 The Court finds that som e portions of plaintiff’s declaration are adm issible, and declines to strike the full declaration. As outlined m ore specifically below, the Court does not consider assertions in the declaration that contradict plaintiff’s deposition testimony or contain inadm issible hearsay. B. Re qu ire m e n ts fo r a Prim a Facie Cas e Title VII prohibits em ployers from “discharg[ing] any individual, or “otherwise [] discrim inat[ing] against any individual with respect to his com pensation, term s, conditions, or privileges of employm ent because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 20 0 0 e-2(a)(1). Plaintiff brings a claim of intentional discrim ination on the basis of race. 50 Because plaintiff presents no direct evidence of racial discrim ination, the Court considers his claim under the McDonnell Douglas 49 50 R. Doc. 74-1 at 2. R. Doc. 1 at 4 ¶ 43. 11 burden-shifting fram ework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 80 2 (1973); By ers v. Dallas Morning N ew s, Inc., 20 9 F.3d 419, 425 (5th Cir. 20 0 0 ). Plaintiff bears the initial burden to show a prim a facie case of discrim ination. McDonnell Douglas, 411 U.S. at 80 2. To establish a prima facie case, “an em ployee m ust dem onstrate that [he] ‘(1) is a m ember of a protected group; (2) was qualified for the position at issue; (3) was discharged or suffered some adverse em ployment action by the em ployer; and (4) was replaced by someone outside his protected group or was treated less favorably than other sim ilarly situated em ployees outside the protected group.’” Morris v. Tow n of Independence, 827 F.3d 396, 40 0 (5th Cir. 20 16) (quoting W illis v. Cleco Corp., 749 F.3d 314, 319-20 (5th Cir. 20 14)). Plaintiff offers no evidence to indicate that he was replaced by someone of a different race. Further, plaintiff acknowledges that he “does not have direct evidence or classical prim a facie fourth prong com parative evidence.”51 But plaintiff contends that he can establish a prim a facie case through evidence that the em ployer failed to follow its own procedures, offered inconsistent or changing explanations for his firing, and engaged in 51 R. Doc. 74 at 1. 12 racial discrim ination within his five-m an work crew. 52 An em ployer’s inconsistent explanations or failure to follow its own procedures are relevant to the issue of pretext, not to the requirem ents of a prim a facie case. See N asti v. CIBA Specialty Chem . Corp., 492 F.3d 589, 593-94 (5th Cir. 20 0 7); State v. N ew Palace Casino, LLC, 187 F. App’x 350 , 358-59 (5th Cir. 20 0 6); Ty ler v. Union Oil Co. of Ca., 30 4 F.3d 379, 395-96 (5th Cir. 20 0 2). The Fifth Circuit has m ade clear that evidence of pretext is not a substitute for the requirem ent that a plaintiff first establish a prim a facie case by showing differential treatm ent of sim ilarly situated employees. See Paske v. Fitzgerald, 785 F.3d 977, 985, 985 n.8 (5th Cir. 20 15) (rejecting argum ent that plaintiff can satisfy fourth elem ent of prim a facie case by showing that stated reasons for firing were pretextual); see also W illiam s v. Franciscan Missionaries of Our Lady Health Sy s., Inc., 689 F. App’x 374, 375 (5th Cir. 20 17) (“[Plaintiff] is correct that a similarly situated em ployee who was not term inated is not the only way to establish a prim a facie case of discrim ination. He m ay also show that he was replaced by someone outside of the protected class.”). Plaintiff’s argum ent that he can establish a prima facie case through “other circum stances” suggesting pretext therefore fails. 52 Id. 13 The Court has had great difficulty understanding plaintiff’s disorganized and ram bling brief, and identifying what facts and arguments plaintiff relies on to oppose sum m ary judgm ent. As the Fifth Circuit has explained, “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 judgment.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (internal citation and quotation m arks om itted). The Court has nevertheless attem pted to identify valid argum ents and factual disputes within plaintiff’s subm issions. Despite plaintiff’s statem ent that he “does not have evidence of favorable treatm ent of a comparable employee,”53 his arguments regarding racial discrimination within his work crew could be construed as an attem pt to satisfy the fourth element of a prim a facie case through evidence that he was treated less favorably than sim ilarly situated em ployees. To m eet the “‘sim ilarly situated employees’ requirement, ‘a plaintiff m ust show that he was treated less favorably than others ‘under nearly identical circum stances.’” Morris, 827 F.3d at 40 1. An em ployment action is “taken under nearly identical circum stances when the em ployees being com pared held the same job or responsibilities, shared the same supervisor 53 R. Doc. 74 at 1. 14 or had their em ploym ent status determ ined by the sam e person, and have essentially com parable violation histories.” Lee v. Kansas City S. Ry . Co., 574 F.3d 253, 260 (5th Cir. 20 0 9) (internal citations om itted). “If the difference between the plaintiff’s conduct and that of those alleged to be sim ilarly situated accounts for the difference in treatm ent received from the em ployer, the employees are not sim ilarly situated for the purposes of an em ploym ent discrim ination analysis.” Id. at 260 (internal citation and quotation m arks om itted). C. Pro p o s e d Co m parato rs The undisputed facts indicate that Kingsland made the decision to term inate plaintiff’s em ploym ent after Kingsland was notified about problem s with the Chrom e Weld and the Underground Weld within a few days of each other, and heard that plaintiff was the welder on both these jobs. 54 Plaintiff argues that he was treated less favorably than two white em ployees, Travis and Hinton, 55 but neither of these individuals is sim ilarly situated to plaintiff. 54 R. Doc. 70 -3 at 10 -11 ¶¶ 59-62; R. Doc. 74-1 at 9-10 ¶¶ 59-62; R. Doc. 70 -6 at 38 (Kingsland Depo. at 85). 55 R. Doc. 74 at 6. 15 Travis was a pipe forem an involved in both Chrom e Weld errors. 56 He received a written reprimand because of the problems with the Chrom e Weld. 57 Travis is not sim ilarly situated to plaintiff because he is not a welder, 58 and as a forem an, his job and responsibilities differed from those of plaintiff. See Crosby v. Com puter Science Corp., 470 F. App’x 30 7, 30 9 (5th Cir. 20 12) (noting that plaintiff’s supervisor was not an appropriate com parator); Merritt v. United Parcel Service, Inc., 321 F. App’x 410 , 414 (5th Cir. 20 0 9); Lee, 574 F.3d at 259-60 . Moreover, Kingsland testified that he did not consider discharging Travis because Travis was less responsible for the problems with the Chrome Weld than other em ployees. 59 It is also undisputed that Travis was not involved with the failure of the Underground Weld. 60 Hinton is a welder and his job responsibilities were therefore m ore sim ilar to those of plaintiff. But plaintiff cannot show that Hinton had a com parable violation history. It is undisputed that Hinton used erroneous filler m aterial on the Chrom e Weld, and that his work had to be cut out. 61 56 R. Doc. 70 -5 at 18 (Travis Depo. at 18). R. Doc. 70 -3 at 11 ¶ 60 ; R. Doc. 74-1 at 10 ¶ 60 ; R. Doc. 70 -5 at 18 (Travis Depo. at 61); R. Doc. 70 -6 at 27 (Kingsland Depo. at 71). 58 R. Doc. 74-4 at 34 (Travis Depo. at 81). 59 R. Doc. 70 -6 at 28, 36 (Kingsland Depo. at 72, 83). 60 R. Doc. 70 -3 at 10 ¶ 58; R. Doc. 74-1 at 9 ¶ 58. 61 R. Doc. 70 -3 at 4-5 ¶¶ 22-24; R. Doc. 74-1 at 5 ¶¶ 22-24. 16 57 Kingsland acknowledged that a welder could be subject to discipline for using incorrect filler m aterial and testified that he did not know why Hinton was not disciplined. 62 But Kingsland also testified that he was unaware that Hinton was involved in the first failed attempt at the Chrom e Weld. 63 Further, plaintiff adm its that the cut out caused by Hinton’s use of incorrect filler m aterial required less work and expense than the second cut out after plaintiff’s work on the Chrome Weld. 64 Hinton’s involvement in the failures of the Chrom e Weld is therefore not fully com parable to plaintiff’s record. See Bry ant v. Com pass Group USA, Inc., 413 F.3d 471, 478 (5th Cir. 20 0 5) (finding that two em ployees accused of theft were not sim ilarly situated when plaintiff’s m isconduct was potentially m uch m ore costly to the em ployer); Lee, 574 F.3d at 261 (explaining that a com parable violation history “m ay turn on the com parable seriousness of the offenses for which discipline was m eted out”). Additionally, plaintiff fails to show that Hinton was involved in m ore than one bad weld. Plaintiff asserts that Hinton failed one of his two 62 R. Doc. 74-2 at 12-13 (Kingsland Depo. at 41-42). Id. at 33-34 (Kingsland Depo. at 80 -81). Plaintiff argues that there is a justifiable inference that Kingsland knew Hinton was the welder on the first failed Chrome Weld because he was the superintendent. See R. Doc. 74 at 21. But this assertion is not supported by specific evidence. 64 R. Doc. 70 -3 at 7-8 ¶ 42; R. Doc. 74-1 at 8 ¶ 42. 17 63 production welds and m ade m istakes on three other welds. 65 But this assertion is not supported by sufficient com petent evidence to create a genuine issue of fact. Plaintiff relies on the deposition testim ony of Tirrell William s, a fellow welder who testified that he believed Hinton failed a qualifying weld because he saw Hinton cutting out a weld. 66 William s further stated that he later saw Hinton cutting out other bad welds, and that Bloodsworth also observed Hinton cutting out a weld. 67 In response to this testim ony, defendant offers the sworn declaration of Alton Lennon William son, who served as a pipe foreman on Hinton’s project. 68 William son avers that both Hinton’s qualifying welds passed inspection and that Hinton was directed to grind out the failed qualifying welds of other applicants. 69 William s’s testim ony that he saw Hinton cutting out welds is consistent with William son’s declaration. William s was not a supervisor on the project or a m ember of the quality control staff. 70 William s’s assumption that Hinton was cutting out his own welds, rather than the failed welds of others, is speculative and does not create a genuine issue of fact. 65 66 67 68 69 70 R. Doc. 74 at 6. R. Doc. 74-5 at 11-12 (William s Depo. at 43-44). Id. at 3-4, 12 (William s Depo. at 11-12, 44). R. Doc. 70 -12. Id. at 2. R. Doc. 80 -1 at 3 (William s Depo. at 26). 18 William s acknowledged that he did not personally observe Hinton’s qualifying welds, but testified that he “heard them guys say he [Hinton] had a spot” and “heard Payton [Travis] say it was one of his qualifiers.”71 Defendant objects to William s’s testim ony as hearsay and speculation. 72 Plaintiff has not identified a legal basis to adm it Travis’s statement to William s regarding Hinton’s qualifying welds, and the Court finds this statement inadm issible. The unrebutted evidence in the record indicates that William son, not Travis, was the pipe forem an supervising Hinton’s qualifying welds. 73 Plaintiff has not pointed to evidence indicating that Travis had personal knowledge of Hinton’s qualifying welds. Nor has plaintiff shown that Travis’s statement was m ade within the scope of his em ploym ent, rather than “in his capacity as wiseacre only.” Staheli v. Univ. of Miss., 854 F.2d 121, 126-27 (5th Cir. 1988); see also Fairchild v. All Am erican Check Cashing, Inc., 815 F.3d 959, 966-67 (5th Cir. 20 16) 71 R. Doc. 74-5 at 11-12 (William s Depo. at 43-44). William s further testified that “I guess to keep his [Hinton’s] job they put him fitting.” Id. at 13. This assertion is speculative and irrelevant. Even if Hinton did change jobs, the Court has no further inform ation about the circum stances surrounding this change of position or whether it constituted a dem otion. A change in job description is not evidence that Hinton failed his qualifying welds or that he was treated differently than plaintiff under sim ilar circum stances. 72 R. Doc. 80 at 1, 8. 73 R. Doc. 70 -12. 19 (explaining that a m anagerial employee’s statements were properly excluded as hearsay when the employee was not involved in the decision at issue). Accordingly, the Court finds that plaintiff’s assertions that Hinton failed his qualifying welds and made errors on other welds are speculative and unsupported by competent summary judgment evidence. See Douglass v. United Serv. Auto Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (explaining that “conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonm ovant’s burden” on sum m ary judgment). The undisputed facts indicate that Hinton was involved in the first attem pt at the Chrom e Weld, but that repairing this initial m istake was less costly than the subsequent cut out after plaintiff’s work on the Chrom e Weld. No com petent evidence dem onstrates that Hinton was im plicated in additional failed welds. See Play er v. Kansas City S. Ry . Co., 496 F. App’x 479, 482 (5th Cir. 20 12) (finding that plaintiff’s disciplinary record was not com parable to that of em ployees with fewer violations); Bouie v. Equistar Chem . LP, 188 F. App’x 233, 237 (5th Cir. 20 0 6) (finding that white employee who failed to com ply with one safety protocol was not sim ilarly situated to plaintiff who failed to com ply with two safety protocols). Even if Hinton m ade m istakes on other welds, the Court has no inform ation to suggest that those errors were as costly as the problem atic 20 welds that plaintiff was involved in. Nor is there evidence that Hinton’s purported m istakes occurred within a com parably short tim e period as the failures of the Chrom e Weld and the Underground Weld within a few days of each other. The Court therefore finds that Hinton’s em ployment history is not sufficiently similar to plaintiff’s record to satisfy the fourth elem ent of a prim a facie case. Plaintiff also asserts that a second unnam ed white welder failed a production weld. 74 Plaintiff testified that he was told by other people on the job that white welders m ade bad welds and were allowed to fix them . 75 But plaintiff adm its in his deposition that he has no direct knowledge of white welders with bad welds. 76 William s sim ilarly testified that there was another white welder who had a bad production weld. 77 But, like William s’s allegations against Hinton, this assertion is based solely on what William s heard from others and on his observation that this unnam ed welder was fixing a weld. 78 As explained above, William s’s hearsay testim ony and speculation are not com petent sum mary judgment evidence. Moreover, William s acknowledged that he did not know of any additional bad welds by 74 75 76 77 78 R. Doc. 74 at 6. R. Doc. 70 -4 at 80 (Pl.’s Depo. at 129). Id. at 81 (Pl.’s Depo. at 130 ). R. Doc. 74-5 at 5-6 (William s Depo. at 16-17). Id. at 5 (William s Depo. at 16). 21 this unnam ed white welder. 79 Defendant has offered evidence that both white and non-white welders were term inated from the project for substandard job perform ance between J anuary and J une of 20 15. 8 0 Accordingly, the Court finds that plaintiff has not offered com petent evidence that he was treated less favorably than sim ilarly situated em ployees outside his protected class. D . Plain tiff’s Oth e r Evid e n ce Plaintiff attem pts to create issues of fact by arguing that he was not actually responsible for the problem s with the Chrom e Weld and Underground Weld. 8 1 Plaintiff asserts that the Chrom e Weld failed because of a lack of paperwork rather than a lack of preheating, and that the Underground Weld m ay not have required reworking. 82 But plaintiff adm its that both these welds had problem s. Plaintiff acknowledged that the Underground Weld failed x-ray exam ination. 83 Plaintiff also adm itted that 79 Id. at 6 (William s Depo. at 17). R. Doc. 70 -7. 81 R. Doc. 74. 82 Id. 83 R. Doc. 70 -4 at 70 -71 (Pl.’s Depo. at 116-17). Plaintiff’s mem orandum in opposition to sum m ary judgment conclusorily states that plaintiff disputes that the Underground Weld failed an x-ray for lack of fusion. See R. Doc. 74 at 17. But this statem ent is inconsistent with both plaintiff’s deposition testim ony and plaintiff’s declaration, which each acknowledge that the Underground Weld failed x-ray exam ination. See R. Doc. 70 -3 at 10 ¶ 53; R. Doc. 74-1 at 8-9 ¶¶ 44, 53. Further, Michael Knight, the quality 22 80 he did not check the prior welder’s work before beginning work on the Underground Weld. 8 4 Further, it is undisputed that the Chrom e Weld had to be cut out after plaintiff worked on it. 85 Plaintiff asserts that the pipe was properly heated and that the lack of pre-heat “was a problem invented to im plicate plaintiff” and to shift responsibility onto him for the failed weld out of “supervisor self preservation.”8 6 Even if the Court accepted plaintiff’s theory that his supervisors blamed him for the weld’s failure to protect them selves, this is not evidence that sim ilarly situated em ployees of a different race received m ore favorable treatm ent. See Bry ant, 413 F.3d at 477 (noting lack of evidence that alleged conspiracy by other em ployees was racially m otivated). Moreover, the Court finds no genuine dispute of fact that plaintiff failed to follow proper procedures by adm ittedly not checking the tem perature of the pipe before starting work on the Chrom e Weld. 8 7 control m anager, testified that the Underground Weld was x-rayed and that two of the three x-rays were bad. See R. Doc. 77 at 5 (Knight Depo. at 40 ). Defendant has produced a copy of this x-ray report showing two rejections for lack of fusion. See R. Doc. 75-2 at 1. Accordingly, the Court finds no genuine issue of fact that the Underground Weld failed an x-ray exam ination. 84 R. Doc. 70 -3 at 8 ¶ 47; R. Doc. 74-1 at 9 ¶ 47. 85 R. Doc. 70 -4 at 82 (Pl.’s Depo. at 133); R. Doc. 77 at 3 (Knight Depo. at 31). 86 R. Doc. 74 at 19-20 . 87 R. Doc. 70 -3 at 6 ¶ 35; R. Doc. 70 -4 at 51-52; R. Doc. 74-1 at 6 ¶ 35. 23 Defendant’s welding procedure specification requires that tem perature be checked with a “tem perature indicating crayons or an approved equal.”8 8 Wilson testified that he called a m eeting with the welders, including plaintiff, and rem inded them to use temperature sticks. 89 Plaintiff acknowledges that he was at this meeting. 90 William s also testified that tem perature sticks were available and that he used them on chrom e welds. 91 Travis sim ilarly testified that a tem perature stick is used to determ ine the proper tem perature on chrom e welds, and that plaintiff m ade a m istake by not using one. 92 When considering whether plaintiff and potential com parators have sim ilar violation histories, “the relevant perspective is that of the employer 88 R. Doc. 74-6 at 10 . Plaintiff argues that defendant’s procedures also allow the use of therm ocouples. See 74-1 at 6 ¶ 34. But plaintiff points to defendant’s “Field Fabrication and Erection of Pressure Vessels and Piping” guidelines to support this argument rather than the the welding procedure specifications. See R. Doc. 74-6 at 11-12. The “Field Fabrication” docum ent states that welding parameters are specified in the welding procedure specifications. Id. Knight, the quality control m anager, also testified that the welding procedure specifications require the welder to check the tem perature. See R. Doc. 74-3 at 5-6 (Knight Depo. at 32-33). Plaintiff also argues that his forem en, Travis and Wilson, “waived” the tem perature stick requirement because they saw him work without it. See R. Doc. 74 at 7. But there is no indication in the record that either Travis or Wilson had the authority to waive this requirem ent. 89 R. Doc. 74-5 at 21 (Wilson Depo. at 35). 90 R. Doc. 74-1 at 4, 6 ¶¶ 19, 28. 91 R. Doc. 80 -1 at 4, 6 (William s Depo. at 28, 63). 92 R. Doc. 70 -5 at 10 (Travis Depo. at 34); R. Doc. 74-4 at 4 (Travis Depo. at 18). 24 at the tim e of the adverse em ploym ent decision.” Lee, 574 F.3d at 260 n.27 (quoting Perez v. Tx. Dept. of Crim . Justice, 395 F.3d 20 6, 210 (5th Cir. 20 0 4)); see also W allace v. Methodist Hosp. Sy s., 271 F.3d 212, 221 (5th Cir. 20 0 1) (finding that proposed comparators were not sim ilarly situated in part because supervisors were not aware of their alleged violations). Kingsland testified that he was informed by quality control staff that the Chrome Weld had not been preheated. 93 Kingsland further testified that he was told by Bloodsworth that the Underground Weld was bad. 94 Kingsland’s unrebutted testim ony is that he did not intend to term inate plaintiff for the Chrom e Weld until he heard about the Underground Weld. 95 Regardless whether plaintiff was ultim ately m ost responsible for the problem s with the Chrom e Weld and the Underground Weld, it is undisputed that Kingsland believed that plaintiff was involved in both bad welds within a few days of each other when Kingsland made the decision to term inate his em ployment. 96 See Morris, 827 F.3d at 40 1-0 2 (finding that plaintiff was not sim ilarly situated to proposed comparator in part because em ployer received verbal com plaints about plaintiff’s perform ance, even 93 94 95 96 R. Doc. 70 -6 at 12-13 (Kingsland Depo. at 51-52). Id. at 37 (Kingsland Depo. at 84). Id. at 36-38 (Kingsland Depo. at 83-85). Id.; R. Doc. 70 -3 at 10 -11 ¶¶ 59-62; R. Doc. 74-1 at 9-10 ¶¶ 59-62. 25 though these com plaints were not docum ented). Plaintiff has not shown that another welder of a different race was sim ilarly associated with two faulty welds within a short period of tim e. To the extent that plaintiff argues that Bloodsworth, the night shift general forem an, influenced Kingsland’s discharge decision, plaintiff has not presented com petent evidence that Bloodsworth treated welders of a different race m ore favorably than him . Plaintiff relies on William s’s testim ony that Hinton and other white welders failed their qualifying welds and that William s assumed Bloodsworth was aware of these failures. 97 As explained above, William s’s speculation regarding what Bloodsworth knew is not com petent sum m ary judgment evidence. Additionally, plaintiff’s argument that Bloodsworth “set him up” by telling him that the Underground Weld would not be x-rayed 98 is not evidence that Bloodsworth treated white employees m ore favorably. Accordingly, plaintiff has not dem onstrated that sim ilarly situated em ployees were treated m ore favorably than him “under nearly identical circum stances.” Morris, 827 F.3d at 40 1. Because plaintiff fails to satisfy the fourth elem ent of a prim a facie case, the Court need not determ ine whether plaintiff was qualified for his position. 97 98 R. Doc. 74 at 6; R. Doc. 74-5 at 3-6 (William s Depo. at 11-12, 16-17). R. Doc. 74 at 8. 26 Plaintiff has not established a prim a facie case of racial discrim ination and defendant is entitled sum m ary judgment. IV. CON CLU SION For the foregoing reasons, defendant’s m otion for sum m ary judgment is GRANTED. Plaintiff’s com plaint is DISMISSED. 6th New Orleans, Louisiana, this _ _ _ _ _ day of November, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 27
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