United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND RECOMMENDATION
CHRISTINA A. BRYAN, UNITED STATES MAGISTRATE JUDGE
employment discrimination case is before the court on
Defendant Noble Drilling (U.S.) LLC's Motion for Summary
Judgment on all of Mitchell Youngblood's claims. Dkt. 26.
Having considered the parties' submissions, argument of
counsel at a hearing on the record on April 12, 2017, and the
law, the court recommends that Noble's motion be granted
in part and denied in part, as set forth below.
began working for defendant Noble in 2005 as a roustabout on
the Noble Therald Martin. He worked over the next
several years as a floorhand, assistant crane operator, crane
operator, Assistant Dynamic Positioning Officer (ADPO),
Dynamic Positioning Officer (DPO), and Third Mate on various
Noble drilling rigs around the world.
December 17, 2016, Youngblood was working as a DPO on the
Noble Danny Adkins. Youngblood and the rig Captain,
Curtis Laskowski, were aware that a weather event called a
“frontal passage” was expected to arrive sometime
during the night of December 17 or early morning of December
18. Before his shift ended at midnight, Youngblood received a
weather service notification that the front would arrive
between 1:00 and 2:00 a.m. on December 18. Youngblood did not
notify Laskowski, who was off duty, of the updated and more
specific window of time for the frontal passage. When
Youngblood's relief, DPO Graham Philpot, arrived for his
shift, Youngblood informed Philpot of the weather service
notification. After leaving to check on another issue,
Youngblood returned to Philpot, logged the current weather
conditions, asked Philpot if there was anything else he
needed, and retired for the night. Dkt. 27-2 at 42-45; Dkt.
31-19 at 2-4.
approximately 12:25 a.m., Philpot attempted to start the
rig's thrusters to maneuver away from the mooring buoy,
but one thruster would not start. At approximately 1:00 a.m.,
Philpot alerted Captain Laskowski, who was still not on duty
at the time, of the situation. Between 1:24 a.m. and 1:30
a.m., surge from the weather event caused the rig to run over
a mooring buoy, causing approximately $589, 000 in damage.
Laskwoski, Philpot, and Youngblood were all disciplined for
the December 18, 2016 buoy incident. Dkt. 27-3. After the
incident, Junior Drilling Superintendent David Milne held a
conference call with Laskowski, Youngblood, Philpot, and the
rig manager to discuss the event. Youngblood and
Philpot's relief notes say that Milne informed them
during the call that “no fingers would be pointed, and
not blame was to be placed, ” but that they were
written up anyway. Dkt. 31-6 at 2. For his part, Youngblood
received a December 28, 2016 write up that criticized him for
failing “to communicate with the Captain during
inclement weather conditions, ” failing to “[b]e
proactive when starting thrusters to help keep the rig clear
of the buoy as the wind veers during frontal passage, ”
and not “leaving your relief enough time to start
thrusters and maneuver the rig prior to an estimated frontal
passage occurring at 0100, 1 hour after watch
turnover.” Dkt. 31-7 at 2. The December 28, 2016 write
up did not set forth any sanction, but stated the expectation
that Youngblood's “future actions, reactions and
decision-making to safe guard the rig and personnel onboard
will be thought out, effective, proactive and controlled,
” and that when in doubt, he is “implored to
notify the Captain immediately.” Id.
contends that his career was on an upward trajectory until
the December 28, 2016 write-up, and that the write-up was
discriminatory. He alleges that after the December 28, 2016
write up, he suffered a series of adverse employment actions,
including being laid off on February 1, 2017 (along with
Philpot) from his DPO position on the Danny Adkins,
and the failure to be promoted to an ADPO or DPO position
when he was rehired after the layoff. Unlike Youngblood,
Philpot was not rehired after his February 1, 2017 layoff.
Dkt. 27-4 at 2.
complained to Noble representatives on May 17, 2017, and on
other occasions over the next several days, that Noble had
discriminated against him due to his race. Youngblood's
employment with Noble ended on August 11, 2017 after
Youngblood objected to signing a July 18, 2017 employee
filed this suit on January 16, 2018, alleging claims against
Noble under Title VII and 42 U.S.C. § 1981 for race
discrimination, retaliation, and hostile work environment.
This Memorandum and Recommendation addresses only the
discrimination and retaliation claims because Youngblood
abandoned his hostile work environment claim by failing to
address it in his response to Noble's Motion for Summary
Judgment. See Collins v. Noble Drilling (U.S.) LLC,
Civil Action No. H-16-2293, 2018 WL 7050254 at *2 (S.D. Tex.
Dec. 19, 2018) (adopted 2019 WL 220306, Jan. 15,
2019) (plaintiff abandoned his § 1981 race
discrimination claim by ignoring it in his summary judgment
response). Youngblood's counsel confirmed at the hearing
that Youngblood intended to abandon the hostile work
challenges nine discreet employment actions by
1. December 28, 2016 disciplinary form
related to the December 18, 2016 incident that caused
extensive damage to one of the buoys on the Noble Danny
2. February 1, 2017 lay off from the
position of DPO on the Noble Danny Adkins;
3. February 2017 rehire as a temporary Third
Mate, instead of as DPO, on the Noble Don Taylor;
4. April 2017 failure to promote to DPO on
the Noble Don Taylor;
5. February 2017 - August 2017 Harsh
treatment by Chief Mates Gus Arriens and Ray Thibodeaux on
the Noble Don Taylor;
6. May 19, 2017 verbal reprimand by Captain
Tom McDorr on the Noble Don Taylor;
7. May 26, 2017 failure to promote to a DPO
position on the Noble Globetrotter II;
8. July 18, 2017 employee disciplinary form
regarding his performance on the Noble Don Taylor;
9. August 11, 2017 termination from
temporary Third Mate position on the Noble Don
court recommends that Noble's Motion for Summary Judgment
be granted in full as to Youngblood's discrimination
claim and denied with respect his retaliation claim based on
actions 8 and 9 of the above list.
Summary Judgment Standards
judgment is appropriate if no genuine issues of material fact
exist, and the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c). The party moving for
summary judgment has the initial burden to prove there are no
genuine issues of material fact for trial. Provident Life
& Accident Ins. Co. v. Goel, 274 F.3d 984, 991
(5thCir. 2001). Dispute about a material fact is
“genuine” if the evidence could lead a reasonable
jury to find for the nonmoving party. Hyatt v.
Thomas, 843 F.3d 172, 177 (5thCir. 2016).
“An issue is material if its resolution could affect
the outcome of the action.” Terrebonne Parish Sch.
Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 310
(5thCir. 2002). The court construes the evidence
in the light most favorable to the nonmoving party and draws
all reasonable inferences in that party's favor. R.L.
Inv. Prop., LLC v. Hamm, 715 F.3d 145, 149
(5th Cir. 2013).
McDonnell Douglas Burden-Shifting
Title VII and 42 U.S.C. § 1981 claims are subject to the
familiar McDonnell Douglas burden-shifting
framework. Davis v. Dall. Area Rapid
Transit, 383 F.3d 309, 316-17 (5th Cir.
2004). Pursuant to this framework, a plaintiff relying on
circumstantial evidence must first present evidence of each
element of a prima facie case of discrimination or
retaliation. Id. at 317 (citing Patel v. Midland
Mem'l Hosp. & Med. Ctr., 298 F.3d 333, 342
(5th Cir. 2002)). If a plaintiff meets this prima
facie burden, a presumption of discrimination or retaliation
arises, shifting the burden of production to the employer to
articulate a legitimate, nondiscriminatory reason for its
employment action. Id.; Hernandez v. Metro.
Transit Auth. of Harris Cty., 673 Fed.Appx. 414, 417
(5th Cir. 2016). If the employer states a
legitimate reason for its action, the inference of
discrimination disappears, and the burden shifts back to the
plaintiff to present evidence that the employer's
proffered reason is merely pretextual. Id. “In
contrast to the minimal burden that a plaintiff bears when
establishing his prima facie case, a plaintiff must produce
‘substantial evidence of pretext.'
Hernandez, 673 Fed.Appx. at 419 (quoting
Auguster v. Vermilion Par. Sch. Bd., 249 F.3d 400,
402-03 (5th Cir. 2001)). The plaintiff always
bears the ultimate burden to prove discrimination. Outley
v. Luke & Assoc., Inc., 840 F.3d 212, 216
(5th Cir. 2016).
establish a prima facie case of discrimination, Youngblood
must show: (1) he was in a protected class; (2) he was
qualified for the position; (3) he suffered an adverse
employment action; and (4) he was replaced by someone outside
of his protected class, the employer promoted someone who is
outside of his protected class, or he was otherwise treated
less favorably than similarly situated employees. Okoye
v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507,
512-13 (5th Cir. 2001); Outley v. Luke &
Assoc., Inc., 840 F.3d 212, 216 (5th Cir.
2016); Autry v. Fort Bend Indep. Sch. Dist., 704
F.3d 344, 347 (5thCir. 2013); Bryan v.
McKinsey & Co., 375 F.3d 358, 360 (5th
Cir. 2004); Frank v. Xerox Corp, 347 F.3d 130, 137
(5th Cir. 2003); Price v. Fed. Express
Corp., 283 F.3d 715, 720 (5th Cir. 2002).
purposes of summary judgment, Noble does not contest the
first two elements of Youngblood's prima facie case.
However, Noble contends that several of the nine employment
actions identified above do not rise to the level of an
adverse employment action for purposes of a discrimination
claim. As to the remaining actions, Noble has put forth
legitimate, non-discriminatory explanations for its
decisions, and contends that Youngblood cannot show that its
legitimate explanations are merely pretext for race
1. Youngblood Has Not Met His Prima Facie Burden on Four
Alleged Adverse Employment Actions
“ultimate employment decisions such as hiring, granting
leave, discharging, promoting, and compensating, ”
constitute adverse employment decisions for purposes of
proving a prima facie case of discrimination. Felton v.
Polles, 315 F.3d 470, 486 (5th Cir. 2002), overruled
on other grounds by Burlington Northern & Santa Fe Ry.
Co. v. White, 548 U.S. 53 (2006). Title VII does not
address “every decision made by employers that arguably
might have some tangential effect upon…ultimate
[employment] decisions.” Banks v. East Baton Rouge
Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir.
2003) (employer's decision that limits an employee's
opportunities for promotion or lateral transfer does not
qualify as an adverse employment action); see also, Ackel
v. Nat'l Comm., Inc., 339 F.3d 376, 385
(5th Cir. 2003) (“restructuring office
procedures, clarifying job duties, and…reprimands do
not constitute ultimate employment decisions, ”
(quoting Green v. Administrators of the Tulane Educ.
Fund, 284 F.3d 642, 657-58 (5th Cir. 2002));
Odeh v. City of Baton Rouge/Par. of E. Baton Rouge,
731 Fed.Appx. 288, 292 (5th Cir. 2018) (written
reprimand and warning that future incidents would result in
more severe action did not constitute an ultimate employment
1, 5, 6 and 8-the December 28, 2016 employee disciplinary
form, the harsh treatment by Chief Mates Arriens and
Thibodeaux on the Don Taylor, the May 19 verbal
reprimand, and the July 18, 2017 employee disciplinary
form-do not directly impact the terms of Youngblood's
employment such as hiring, granting leave, discharging,
promoting, and compensating, and do not constitute adverse
employment actions. Therefore, Youngblood cannot meet his
burden to present a prima facie case of discrimination as to
these four employment decisions (actions 1, 5, 6, and 8).
Youngblood cites Brooks v. Houston Indep. Sch.
Dist., 86 F.Supp.3d 577, 586 (S.D. Tex. 2015), for the
proposition that “[d]isciplinary write-ups that are the
basis for more serious consequences may be adverse employment
actions.” Dkt. 30 at 22. Brooks, however, is a
retaliation case, which involves a less rigorous standard for
an adverse employment action, as discussed in more detail
below in Section III.B.1.b.
does not dispute that termination constitutes an adverse
employment action, but strenuously disputes that Youngblood
was terminated. According to Noble, Youngblood resigned.
Captain Malone called Youngblood into his office on August
11, 2017, intending to offer him a permanent Third Mate
position on the Noble Don Taylor. However, he told
Youngblood that before he could accept the position,
Youngblood needed to sign a July 18, 2017 employee
disciplinary form regarding performance issues brought to
Malone's attention by Chief Mates Arriens and Thibodeaux.
As Youngblood explained in his deposition:
[Malone] . . . said: “As you are aware, there is a
third mate position. Before I can offer this position to you,
we have to take care of this matter.” And he gave me
the write-up. So he never offered [the job] because he said
we had [to] take care of the write-up and I didn't sign
the write-up and I got up and walked out of the office.
Dkt. 27-2 at 34-35. Youngblood further testified that he told
Malone, “No, I'm not signing the write-up.”
Dkt. 27-2 at 83. According to Youngblood, he returned to
Malone's office and asked Malone to call Noble HR
representative Amanda Joiner, but Malone replied that Joiner
had already directed Malone to “tell Mitchell his
resignation is effective immediately.” Id. at
86. Youngblood denies he intended to resign but admits he
never told Malone or anyone in management that he wanted to
continue working. Id. at 87-89.
wrote an email to Joiner that same day, stating that
Youngblood refused to sign the letter of warning and that
“[Youngblood] initially accepted the position of Third
Mate on board the Taylor, but has since changed his mind and
he was told that means he is resigning from the Company
effective immediately.” Dkt. 27-7 at 21. The email also
said, “He will be on this afternoon's flight,
should be departing in about three hours.” Id.
Malone testified at his deposition that “[Youngblood]
declined the job because he didn't want the Letter of
Warning[, ]” and “I don't think he said the
words ‘I ...