United States District Court, S.D. Texas, Houston Division
OPINION AND ORDER GRANTING SUMMARY JUDGMENT
MELINDA HARMON UNITED STATES DISTRICT JUDGE
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,  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”)motion for summary judgment
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
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
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).
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).
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.
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.
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
§ 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.
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
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).
“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).
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.”).
fourth prong, “similarly situated” employees are
employees who are treated more favorably in ”nearly
identical” circumstances; the Fifth Circuit defines
“similarly situated” narrowly. Silva v.
Chertoff, 512 F.Supp.2d 792, 803 n.33 (W.D. Tex.
2007). 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]
in Lee v. Kansas City Southern Ry. Co., 574 F.3d
253, 260-61 (5th Cir. 2009), a Fifth Circuit panel
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).
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.
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).
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. 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.
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. 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).
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.”). 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).
Amended Complaint's Allegations (#7)
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.
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.
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.
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.
Motion for Summary Judgment (#17)
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
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.'” 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 on the pipeline assets in
2012. 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
Love 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