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Odubela v. Exxon Mobil Corp.

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

August 4, 2017

TOLULOPE ODUBELA, Plaintiff,
v.
EXXON MOBIL CORPORATION, Defendant.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS, SENIOR UNITED STATES DISTRICT JUDGE

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

         I. BACKGROUND

         Plaintiff, who was born in Nigeria, is a resident of Houston, Texas. Plaintiff identifies himself as a black male whose race is “Sub-Saharan African.”

         Plaintiff began working at Exxon as an intern in 2007. During his internship, Plaintiff expressed a willingness to work for Exxon in Nigeria. See Plaintiff's Depo., Exh. C to Motion, p. 49.

         In October 2008, after he completed his internship, Plaintiff was offered and accepted a full-time position with Exxon as a Public & Government Affairs Advisor. Alexandra Roberts-Judd was Plaintiff's supervisor. Plaintiff has presented evidence that he received positive comments from Roberts-Judd regarding his performance, and that he received pay increases in 2009 and 2010. Exxon has presented evidence that by September 2009, Roberts-Judd had concerns regarding Plaintiff's failure to complete assignments in a timely manner, and the frequent need to edit his writing. As was the case during his internship, Plaintiff continued to express a willingness to be assigned to work for Exxon in Africa in the future.

         In January 2010, Nora Scheller became Plaintiff's supervisor. Plaintiff has presented sworn testimony that, for most of that year, his frequent interactions with Scheller were positive, and that Scheller never expressed any concerns regarding Plaintiff's performance. Exxon has presented evidence that Scheller soon found Plaintiff's work product and performance to be “well below average” for an Exxon employee in his position and with his experience. Exxon has presented evidence that Scheller counseled Plaintiff regarding his failure to deliver on his self-imposed time commitments, his problems with general time management, and his poor writing ability. Plaintiff testified that he expressed to Scheller a willingness to be assigned to work for Exxon in Africa. See Id. at 88.

         Plaintiff has presented evidence that, after he mentioned to Scheller in October 2010 that he was originally from Nigeria, Scheller began to complain generally about his performance and suggested that he explore other positions that might be a “better fit” for him. Plaintiff states under oath that Scheller asked him if he had considered moving back to Nigeria and stated that she did not believe Plaintiff had what it takes to make it in the United States. Exxon has presented evidence that Scheller knew well before October 2010 that Plaintiff was from Nigeria, noting that his resume included his education at the University of Nigeria.

         Plaintiff states under oath that Scheller failed to give him any specific information regarding his allegedly poor performance, except to mention his lack of eye contact. Plaintiff states that he explained to Scheller that lack of eye contact was a trait stemming from his ancestry and cultural background in which direct eye contact is considered rude. In his deposition, Plaintiff testified that he told Scheller that he was from Nigeria, but did not say that he was a member of the Sub-Saharan African race. See Id. at 159. Plaintiff testified also that he does not distinguish between being from Nigeria and being a member of the Sub-Saharan African race. See Id. at 158. Plaintiff conceded, however, that some individuals from Nigeria may not be of the Sub-Saharan African race, and clearly the Sub-Saharan African race encompasses individuals from many diverse nations throughout Sub-Saharan Africa.

         In January 2011, Scheller met with Plaintiff to discuss a Performance Improvement Plan (“PIP”). Plaintiff and Scheller agreed to meet bi-monthly to follow up on the PIP. Plaintiff has presented sworn testimony that Scheller refused to provide specific feedback regarding his work performance except to comment on his lack of eye contact. Exxon has presented evidence that Scheller provided Plaintiff with specific examples of the problems with his work product and performance. Plaintiff admits that before he was placed on the PIP, he was ranked in the bottom third relative to his peers at Exxon. Exxon has presented evidence that his low ranking was based, in part, on negative feedback from Knowledgeable Others (“KOs”), individuals at Exxon selected by Plaintiff to provide feedback. Plaintiff has presented evidence that, although some of the KOs' feedback was negative, some of it was positive.

         Plaintiff has presented evidence that, after Scheller again commented on his “inability to make it in the United States” during a PIP meeting on May 9, 2011, he complained to Exxon's Human Resources Department about Scheller's repeated references to ethnic and cultural traits that Plaintiff attributes to members of the Sub-Saharan African race. Plaintiff also complained about Scheller's repeated questioning of Plaintiff's ability to succeed in the United States. Plaintiff believes that Scheller targeted him and set him up for termination because he is of the Sub-Saharan African race.

         Plaintiff's employment with Exxon was terminated on September 14, 2011. Plaintiff alleges that he was terminated because of his Sub-Saharan African race.

         Plaintiff filed his First Amended Complaint on February 29, 2016, asserting a race discrimination claim and a retaliation claim under 42 U.S.C. § 1981. Discovery has ended, and Exxon has moved for summary judgment on both claims. The Motion has been fully briefed and is now ripe for decision.

         II. SUMMARY ...


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