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Mitchell v. Energy Transfer Partners LP

United States District Court, S.D. Texas, Houston Division

February 9, 2017




         The First Amended Complaint (instrument #7) in the above referenced case alleges racial discrimination leading to Plaintiff Freddie Mitchell's (“Mitchell's”) purported termination in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, and in violation of the Texas Commission on Human Rights Act (“TCHRA”), Texas Labor Code Ann. §§ 21.001-21.556, [1] and violations of the Family and Medical Leave Act (the “FMLA”), 42 U.S.C. § 2000e, et seq., following Mitchell's return from authorized leave under the FMLA, and seeking re-employment, compensatory damages, costs including attorneys' fees, and other relief to which he may be entitled. Pending before the Court is Defendant Energy Transfer Partners, L.P.'s (“Energy's”)[2]motion for summary judgment (instrument #17).

         In his opposition (#19) to the motion for summary judgment, Mitchell states that “[a]fter conducting discovery, Plaintiff has decided to no longer pursue the FMLA claims.” #19, p.6, n.1. Therefore the Court dismisses Mitchell's claims under the FMLA with prejudice and does not otherwise address them here.

         Standard of Review

         Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when, viewing the evidence in the light most favorable to the nonmovant, the court determines that “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A dispute of material fact is “genuine” if the evidence would allow a reasonable jury to find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         Initially the movant bears the burden of identifying those portions of the pleadings and discovery in the record that it finds demonstrate the absence of a genuine issue of material fact on which the nonmovant bears the burden of proof at trial; a “complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998).

         If the movant meets its burden and points out an absence of evidence to prove an essential element of the nonmovant's case on which the nonmovant bears the burden of proof at trial, the nonmovant must then present competent summary judgment evidence to support the essential elements of its claim and to demonstrate that there is a genuine issue of material fact for trial. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d 698, 712 (5th Cir. 1994). The nonmovant may not rely merely on allegations, denials in a pleading or unsubstantiated assertions that a fact issue exists, but must set forth specific facts showing the existence of a genuine issue of material fact concerning every element of its cause(s) of action. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).

         Conclusory allegations unsupported by evidence will not preclude summary judgment. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). “‘[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . .'” State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990), quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48 (1986). “Nor is the ‘mere scintilla of evidence' sufficient; ‘there must be evidence on which the jury could reasonably find for the plaintiff.'” Id., quoting Liberty Lobby, 477 U.S. at 252. The Fifth Circuit requires the nonmovant to submit “‘significant probative evidence.'” Id., quoting In re Municipal Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1978), and citing Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d 194, 197 (5th Cir. 1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5thCir. 1999), citing Celotex, 477 U.S. at 322, and Liberty Lobby, 477 U.S. at 249-50.

         Allegations in a plaintiff's complaint are not evidence. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996)(“[P]leadings are not summary judgment evidence.”); Johnston v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir. 1995)(for the party opposing the motion for summary judgment, “only evidence--not argument, not facts in the complaint--will satisfy' the burden.”), citing Solo Serve Corp. v. Westown Assoc., 929 F.2d 160, 164 (5th Cir. 1991). The nonmovant must “go beyond the pleadings and by [his] own affidavits, or by depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue of material fact for trial.” Giles v. General Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001), citing Celotex, 477 U.S. at 324.

         The court must consider all evidence and draw all inferences from the factual record in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 712-13.

         Relevant Law

         Under § 703(a) of Title VII, 42 U.S.C. § 2000e-2(a)(1) and (2), it is “an unlawful employment action for an employer . . . (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin.” Pursuant to the statute, suit may be brought under two distinct theories of discrimination, disparate treatment and disparate impact. International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977); Pacheco v. Mineta, 448 F.3d 783, 787 (5th Cir. 2006), cert. denied, 549 U.S. 888 (2006). Title VII expressly prohibits both (1) intentional discrimination based on race, color, religion, sex or national origin, known as “disparate treatment, ” as well as (2) an employer's facially neutral practices that are discriminatory in operation against protected groups (race, color, religion, sex or national origin) and not required by the nature of the job, known as “disparate impact”. 42 U.S.C. §§ 2000e-2(a)(1) and 2000e(k)(1)(A); Ricci v. DeStefano, 129 S.Ct. 2658, 2672-73 (2009); Pacheco, 448 F.3d at 787. The instant suit is one for disparate treatment, which requires proof of discriminatory motive. Pacheco, 448 F.3d at 787.

         A plaintiff may establish a claim of discrimination under Title VII by presenting direct evidence or by using the indirect method of proof set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This suit falls in the latter category.

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

         An “adverse employment action for Title VII discrimination claims based on race, color, religion, sex, or national origin “‘include[s] only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating.'” McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007), quoting Green v. Administrator of Tulane Educ. Fund, 284 F.3d 641, 657 (5th Cir. 2002). “Title VII was only designed to address ‘ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.'” Burger v. Central Apartment Mgmt., Inc., 168 F.3d 875, 878 (5th Cir. 1999)(emphasis in original), quoting Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.), cert. denied, 522 U.S. 932 (1997), (abrogated on other grounds by Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). If an employer's action fails to have more than a “mere tangential effect on a possible future ultimate employment decision, ” it does not constitute an adverse employment action. Mattern, 104 F.3d at 708. To be actionable, an adverse employment decision must be a “tangible employment action that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998).

         “[A] decision made by an employer that only limits an employee's opportunities for promotion or lateral transfer does not qualify as an adverse employment action under Title VII.” Banks v. East Baton Rouge Parish School Board, 320 F.3d 570, 575 (5th Cir. 2003), citing Burger, 168 F.3d at 878-80 (holding that an employer's refusal of an employee's request for a “purely lateral transfer” does not qualify as an adverse employment action under Title VII). See also Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995)(affirming decision that an employer's denial of a “desk audit” to a female employee is not an adverse personnel action under Title VII, even though the employee claimed that the decision restricted her “promotional opportunities”), overruled in part on other grounds in retaliation cases only, Burlington N. and Santa Fe Ry. v. White (hereinafter “Burlington N.”), 548 U.S. 53 (2006)(rejecting limiting actionable retaliation claims to ultimate employment decisions and redefining adverse employment action in retaliation context as any action that might have dissuaded a reasonable worker from making or supporting a charge of discrimination). By themselves, documented reprimands, though potentially affecting future employment decisions, do not qualify as adverse employment decisions. Thompson v. Exxon Mobil Corp., 344 F.Supp.2d 971, 981 (E.D. Tex. 2004), citing Felton v. Polles, 315 F.3d 470, 487 (5th Cir. 2002)(abrogated on other grounds in retaliation cases only by Burlington N.), and Raggs v. Mississippi Power & Light Co., 278 F.3d 463, 470 (5th Cir. 2002). The same is true of negative performance evaluations, even if they were not deserved. Thompson, 344 F.Supp.2d at 981 (and cases cited therein). Disciplinary write-ups also fail to qualify as adverse employment actions. Id. at 982, citing Mattern, 104 F.3d at 707, and Carthon v. Johnson Controls, Inc., 100 Fed.Appx. 993, 997 (5thCir. 2004)(The employee's “receipt of a single disciplinary warning--without an attendant change in the terms or conditions of his employment--does not qualify as an ultimate employment decision.”). See also Walker v. Thompson, 214 F.3d 615, 629 (5thCir. 2000)(employer's decision to take away a big account from an employee after she filed an EEOC complaint did not constitute an adverse employment action even though it decreased her chances of advancement); Davis v. Miss. Transp. Commission, 618 F.Supp.2d 559, 564 (S.D.Miss. 2009)(“[W]e have repeatedly held that an employment action that limits an employee's future opportunities for promotion, but does not affect the employee's job duties, compensation, or benefits, does not qualify as an adverse employment action.”).

         For the fourth prong, “similarly situated” employees are employees who are treated more favorably in ”nearly identical” circumstances[3]; the Fifth Circuit defines “similarly situated” narrowly. Silva v. Chertoff, 512 F.Supp.2d 792, 803 n.33 (W.D. Tex. 2007).[4] Similarly situated individuals must be “nearly identical” and must fall outside the plaintiff's protective class. Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir.), cert. denied, 546 U.S. 1061 (2005). Where different decision makers or supervisors are involved, their decisions are rarely “similarly situated” in relevant ways for establishing a prima facie case. Thompson v. Exxon Mobil Corp., 344 F.Supp.2d 971 (E.D. Tex. 2004), citing Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000) for the proposition that “[a] demonstration of substantial similarity generally requires a showing that a common supervisor was involved in the decision making”). See also Perez v. Texas Dep't of Criminal Justice, Inst'l Div., 395 F.3d 206, 213 (5th Cir. 2004)(“We . . . have explained consistently that for employees to be similarly situated those employees' circumstances, including their misconduct, must have been ‘nearly identical.'”); Hockman v. Westward Communications, LLC, 282 F.Supp.2d 512, 527-28 (E.D. Tex. 2003)(“The ‘nearly identical' standard, when applied at the McDonnell Douglas pretext stage, is a stringent standard-- employees with different responsibilities, different supervisors, different capabilities, different work rule violations or different disciplinary records are not considered to be ‘nearly identical.'”), citing Okoye v. Univ. of Tex. Houston Health Science Center, 245 F.3d 507, 514 (5th Cir. 2001)(Employees are not in nearly identical circumstances when their actions were reviewed by different supervisors; “to establish disparate treatment a plaintiff must show that the employer ‘gave preferential treatment to [] [another] employee under ‘nearly identical' circumstances' . . .; that is “the misconduct for which [plaintiff] was discharged was nearly identical to that engaged in by . . . [other] employee[s].'”).

         Nevertheless, in Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 260-61 (5th Cir. 2009), a Fifth Circuit panel opined,

We do not, however, interpret “nearly identical” as synonymous with “identical.” Applied to the broader circumstances of a plaintiff's employment and that of his proffered comparator, a requirement of complete or total identity rather than near identity would be essentially insurmountable, as it would only be in the rarest of circumstances that the situations of two employees would be totally identical. For example, it is sufficient that the ultimate decisionmaker as to employees' continued employment is the same individual, even if the employees do not share an immediate supervisor. Each employee's track record at the company need not comprise the identical number of identical infractions, albeit these records must be comparable. As the Supreme Court has instructed, the similitude of employee violations may turn on the “comparable seriousness” of the offense for which discipline is meted out and not necessarily on how a company codes an infraction under its rules and regulations. Otherwise, an employer could avoid liability for discriminatory practices simply by coding one employee's violation differently from another's.

Quoted by Turner v. Kansas City Southern Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012); Roberts v. Lubrizol Corp., 582 Fed.Appx. 455, 459 (5th Cir. Sept. 24, 2014).

         If the plaintiff makes a prima facie case, there is a presumption of discrimination, and the burden of production then shifts to the employer to provide a legitimate, non-discriminatory reason for the adverse employment action. Chevron Phillips, 570 F.3d at 615.

         If the employer meets this burden, the presumption of discrimination disappears and the plaintiff bears the ultimate burden of persuading the trier of fact by a preponderance of the evidence that the defendant intentionally discriminated against the plaintiff because of her protected status. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001). To do so, the plaintiff must produce substantial evidence showing that the proffered legitimate nondiscriminatory reason is a pretext for discrimination. Reeves, 530 U.S. at 143. “Evidence is ‘substantial' if it is ‘of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.” Laxton v. Gap, Inc., 333 F.3d 572, 579 (5th Cir. 2004). Plaintiff may use either of two methods to rebut each of the nondiscriminatory reasons articulated by the employer: pretext or mixed motive. Rachid v. Jack in The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).

         For pretext, the plaintiff must show that the defendant's proffered explanation is false or “unworthy of credence.” Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2004), citing Wallace, 271 F.3d at 221. One way is to show that the employer treated plaintiff more harshly that other “similar situated employees” for “nearly identical conduct, ” i.e, a disparate treatment theory using comparators. Wallace, 271 F.3d at 221; Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009). Although the presumption of discrimination has disappeared, the trier of fact may consider evidence establishing the plaintiff's prima facie case and inferences drawn therefrom in determining whether the employer's explanation is pretextual. Reeves, 530 U.S. at 143. Coupled with the Plaintiff's prima facie case, for purposes of summary judgment the evidence of pretext usually will constitute sufficient evidence to raise an issue of material fact as to whether the employer's reason is credible or merely a pretext for discrimination or, if its reason is true, that a discriminatory reason more likely motivated the decision to effect its adverse employment action. Reeves, 530 U.S. at 143, 147-49.[5] Sometimes, however, additional evidence may be required. Id. “[T]he factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason is correct.' In other words, ‘[i]t is not enough . . . to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination.'” Id. at 146-47 (emphasis in original), citing St. Mary's Honor Center, 509 U.S. at 511, 524, 519. “Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.” Id. at 148-49.

         Alternatively, rather than demonstrating that the defendant's articulated reason for its action is a pretext for discrimination, the plaintiff may show that the defendant's reason for the decision, while true, is only one reason for its conduct and another motivating factor is plaintiff's protected characteristic.[6] Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004); Pinkerton v. U.S. Dept. of Educ., 508 F.3d 207, 213 (5th Cir. 2007).

         The analysis for a race discrimination claim under the TCHRA is generally the same as that under Title VII. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633-34 (Tex. 2012)(“Section 21.051 is effectively identical to its federal equivalent. . . Because one of the purposes of the TCHRA is to ‘provide for execution of the policies of Title VII of the Civil Rights Act of 1964, ' we have consistently held that those analogous federal statutes and the cases interpreting them guide our reading of the TCHRA.”).[7] The Texas Commission on Human Rights Act ("TCHRA"), § 21.051 of the Texas Labor Code provides in relevant part, "An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin or age the employer . . . discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment . . . ." The TCHRA applies only to “ultimate employment decisions”, i.e., decisions involving hiring, granting leave, discharging, promoting, and compensating employees. Anderson v. Houston Community College System, 458 S.W.3d 633, 644 (Tex. App.--Houston [1st Dist.] 2015). Under the TCHRA Mitchell need only prove that race was a “motivating factor for the employment decision. Tex. Labor Code § 21.125(a).

         First Amended Complaint's Allegations (#7)

         Mitchell, an African American and a veteran of the United States Armed Forces, was hired by Defendant Energy on February 7, 2012 to work in Houston, Texas as one of five new Pipeline Controllers, a highly regulated, safety-sensitive position which Defendant explains in Mitchell's case involved monitoring pipeline products moving through pipelines in Louisiana, New Mexico, and Texas and required special training and qualification.

         Mitchell claims that on or about January 7, 2014 he was fired for events that occurred during his employment. In July 2013 on a day he was not scheduled to work, Mitchell, wearing shorts and sunglasses, attended a team meeting at Defendant's offices. A white Pipeline Controller (with the same job classification as Mitchell), subsequently identified as Charles Bozeman (“Bozeman”), also not on duty that day, like Mitchell came to the meeting in shorts. Defendant reprimanded both Pipeline Controllers orally and indicated it would issue a written reprimand shortly. Before the issuance of the written write-up, Mitchell went on a scheduled FMLA leave for treatment of a disabling condition in both his knees that arose during his military service. When Mitchell returned from FMLA leave, Defendant gave him a written reprimand not only for wearing shorts and sun glasses to the meeting, but for several other alleged incidents of poor job performance by Mitchell that had occurred before Mitchell took FMLA leave. When he complained of these additional incidents in the write-up, Defendant terminated him under the pretext that he had not signed his write-up form, but, according to Mitchell, actually based on discriminatory motives because of Mitchell's race. “The behavior, intentional acts and omissions of [Mitchell's] supervisors and co-worker lead directly to Plaintiff's discharge, as they intended, and were the direct and proximate cause of his legal injuries . . . .” #7 at ¶ 9. He claims that “Defendant unequally enforced its disciplinary policies and procedures on the basis of race/ethnicity/color. White American employees were treated leniently for serious work infractions, while Plaintiff was terminated for a minor work infraction.” Id. at ¶ 11.

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

         Other examples of discrimination in his workplace included a white employee of the same job classification as Mitchell who brought a firearm into the workplaces and was not reprimanded until months later when he complained about his compensation and another white employee who failed to come to work without providing an excuse to Defendant, but who was not terminated when he returned.

         Energy's Motion for Summary Judgment (#17)

         With a very different version of what took place, Energy's motion for summary judgment asserts that shortly after receiving the written disciplinary action, Mitchell took more than four months of medical leave, several weeks more than his available FMLA leave. Energy claims that during Mitchell's absence, his department “changed significantly, ” resulting in Mitchell having to re-train and re-qualify for his job upon his return. Energy maintains that Mitchell refused to sign a document, titled “Corrective Action Form, ” presented to him describing the re-training, disputing both the length of the retraining and the need for him to re-qualify. Although Mitchell was informed that the retraining program and the document describing it were not disciplinary, but were necessary because of changes in the equipment he operated, Mitchell still refused to sign and acknowledge that he would re-train and re-qualify. Instead he ripped the document up and gave the pieces to his supervisor and never reported to work again. According to Human Resources Senior Manager Carrie Fowler's deposition testimony, after objecting to signing the form, Mitchell “made the decision to leave” and voluntarily resigned. Ex. C, 82:5-13. Energy insists that there is no evidence of race discrimination and that Energy is entitled to summary judgment as a matter of law.

         In greater detail, Energy explains that Mitchell worked in the Liquids Pipeline Control Center, which is “a central hub of controls which directed ‘hundreds of thousands of miles of pipeline and numerous facilities such as valves, pump stations, [and] storage fields . . . spread across a large geographical area.'”[8] The special training and certification known as “Operator Qualification” (“OQ”) are required before a Pipeline Controller can operate pipeline assets. Federal law, 49 C.F.R. § 195.505(b) and (e), requires that covered pipeline companies must “ensure through evaluation that individuals performing covered tasks are qualified” and “evaluate an individual if the operator [company] has reason to believe that the individual is no longer qualified to perform a covered task.” Mitchell finished his initial training and qualification[9] on the pipeline assets in 2012.[10] Mitchell's job duties included (1) monitoring various pipelines for temperature, pressure, product flow rates, etc.; (2) using the company's computers to operate pumps, valves, and other facilities to commence or change the flow of liquids into various pipelines, fractionation plants, and storage wells; and (3) closely watching various pipelines, storage tanks, and other equipment for leaks or other damage and to communicate with other operators to ensure safe operation within standards and regulations administered by the Pipeline and Hazardous Materials Safety Administration (“PHMSA”).[11]

         Love[12] was Mitchell's direct supervisor, and Steve Chambers (“Chambers”) was Love's immediate supervisor and Director of Pipeline Control. Love and Chambers hired Mitchell. Ex. A, Freddie Mitchell Dep. at 63:14-23; Ex. B, Christopher Love Dep. at ...

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