United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE.
William Walker (hereinafter called "Walker"), has
filed suit against his former employer, Blanchard Refining
Company LLC (hereinafter referred to as
"Blanchard"). Walker alleges that Blanchard engaged
in unlawful employment practices and discriminated against
Walker on the basis of his race, in violation of 42 U.S.C.
§ 2000e (2)(a) and 42 U.S.C. § 1981 as amended by
the Civil Rights Act of 1991.
Court has previously GRANTED Blanchard's motion for
summary judgment. Dkt. 31. Below are the reasons for that
hired Walker to work as an Operator and later promoted him to
the Chief Operator position based on his experience and
bargaining unit seniority. Dkt. 13-5 at 3. Walker contends
that Blanchard engaged in a pattern of racial discrimination
against him, culminating in his demotion and termination.
Walker stated that "he made several efforts for
recertification in order to re-apply for the Chief Operator
position" after his demotion, which were denied. Dkt. 1.
Blanchard argues that Walker was demoted and terminated due
to unsatisfactory evaluation results and violation of company
contends that after his promotion to Chief Operator, he began
to receive unsupported negative evaluations and was
subsequently demoted. However, Walker has not provided any
summary judgment evidence to support his claims. The summary
judgment evidence establishes that Walker received two
evaluations with overall "unsatisfactory" ratings
within a two-month period. In those evaluations, Walker
received unsatisfactory ratings for each of the six
categories examined: health, safety, security, and
environmental; process safety; leadership; unit knowledge;
work attitude; and performance under abnormal situations.
Dkt. 13-8 at 2-8. Under the "improvements needed
section," Walker's supervisor noted that Walker was
not knowledgeable, was not a leader, did not engage with his
team, and needed to improve on knowledge regarding equipment
and procedures. Dkt. 13-8 at 7. Walker also failed all of the
written unit qualification and drawing tests that the Chief
Operator position required him to pass. Dkt. 13-9 at 2-7.
Blanchard provided a Collective Bargaining Agreement
("CBA") that governed Walker's employment,
which contained a Chief Operator Memorandum of Agreement
("MOA"). Dkt. 13-5. The MOA requires that the Chief
Operator be qualified on all the control room board and
outside field jobs in his area of responsibility. Dkt. 13-5
at 3-4. This includes a "satisfactory" evaluation
rating as well as passage of the written qualification tests
with an overall score of eighty-five percent or higher.
Id.; Dkt. 13-9 at 2. Performance evaluations are
performed yearly, and if the Chief Operator receives a
"Progress Marginal" or "Unsatisfactory"
rating, the Chief Operator placed in a developmental plan
under the MOA. Id. There is a second evaluation that
may be accelerated based on performance during such a plan.
Id. Per the MOA, the Chief Operator is to be
disqualified if the second evaluation again results in a
"Progress Marginal" or "Unsatisfactory"
rating. Id. The disqualification period lasts for
four years, during which a disqualified Chief would not be
eligible to fill Chief vacancies. Id.
failure of the tests disqualified Walker from the Chief
Operator Position under the MOA. Dkt. 13-5 at 3-4. There was
a follow-up evaluation in early 2016, which reflected
Walker's failure of all qualification tests and
unsatisfactory performance in all six evaluation criteria.
Dkt. 13. Walker admitted in his deposition that he received
consecutive poor performance evaluations and that he failed
the testing related to the operations of the unit. Dkt. 13-2
at 31, 39. Bobby Cash was promoted to the Chief Operator
position following Walker's demotion. Dkt. 1. Blanchard
stated that Bobby Cash was promoted automatically based on
his seniority under the terms of the CBA. See Dkt.
13-5 at 3. In Walker's deposition testimony, he admitted
that Cash was automatically promoted to the Chief Operator
position because of his seniority and not due to a decision
made by the Defendant. Dkt. 13-2 at 65.
summary judgment evidence establishes that Walker was
eventually terminated for violating company policy when he
failed to apply a lock to a valve during a drum swap. Dkt.
13-11 at 2-20. The failure to apply the lock resulted in an
oil spill and potentially could have caused more serious
damage as well as personal injury. Dkt. 13-11 at 2-20. The
company deemed the procedure Walker violated as one that is
"Life Critical" from a safety perspective in which
"other employees have been similarly terminated"
for failure to follow the procedure. Dkt. 13-11.
Summary Judgment Standard
judgment should be granted "if the movant shows that
there is no genuine dispute to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see also Celtic Marine Corp. v. James
C. Justice Cos., 760 F.3d 477, 481 (5th Cir. 2014). A
"genuine issue of material fact exists when the evidence
is such that a reasonable jury could return a verdict for the
non-movant." Davis-Lynch, Inc. v. Moreno, 667
F.3d 539, 549 (5th Cir. 2012). The moving party "has the
burden of establishing that there is no genuine dispute of
material fact." Id. at 550. To avoid summary
judgment, "the non-movant must go beyond the pleadings
and come forward with specific facts indicating a genuine
issue for trial." Id. at 550. The non-moving
party may "defeat the motion by showing a genuine
dispute of material fact." Johnston v. City of
Houston, 14 F.3d 1156, 1060 (5th Cir. 1994).
'"[A] 11 facts and evidence must be taken in the
light most favorable to the non-movant.'"
Davis-Lynch, Inc., 667 F.3d. at 549-50. However,
"[u]nsworn pleadings, memoranda, or the like are
not...competent summary judgment evidence." Larry v.
White, 929 F.2d 206, 211 n.12 (5th Cir. 1991); see
also Solo Serve Corp. v. Westowne Assoc., 929 F.2d 160,
164 (5th Cir. 1991) ("[O]nly evidence -not argument, not
facts in the complaint -will satisfy [the nonmovant's]
Title VII, it is unlawful for an employer "to fail or
refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual...because of such
individual's race, color, religion, sex, or national
origin." 42 U.S.C. § 2000e-2(a)(1). Where a
plaintiff does not present direct evidence of discrimination,
Title VII claims proceed under the
McDonnell Douglas framework. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under that
framework, the complainant in a Title VII
case "must carry the initial burden under the statute of
establishing a prima facie case of racial
discrimination." Id. at 802. To establish a
prima facie case of racial discrimination under Title VII,
Walker must show, by a preponderance of the evidence, that he
(1) is a member of a protected class; (2) was qualified for
the position; (3) was subject to an adverse employment
action; and (4) was replaced by someone outside the protected
class. Bryan v. McKinsey & Co., 375 F.3d 358,
360 (5th Cir. 2004); Reeves v. Sanderson Plumbing
Prod., 530 U.S. 133, 143 (2000). "Adverse
employment actions can include discharges, demotions,
refusals to hire, refusals to promote, and reprimands."
Sharp v. City of Houston, 164 F.3d 923, 933 (5th
the prima facie case has been established, the burden then
shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the adverse employment action.
See McDonnell Douglas Corp., 411 U.S. at 802;
see, e.g., Marcantel v. Dep't of Transp. &
Dev.,37 F.3d 197, 199 (5th Cir. 1994) (where a business
judgment was held to be a legitimate, nondiscriminatory
reason). The employer's burden "is one of
production, not persuasion." Alvarado v. Texas
Rangers,492 F.3d 601, 611 (5th Cir. 2007) (quotations
omitted). When the employer produces sufficient evidence to
support a legitimate, nondiscriminatory explanation for the
decision, the plaintiff is afforded the "opportunity to
prove by a preponderance of the evidence that the legitimate