Sterling v. Centerpoint Energy Service Company LLC

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

ANTHONY STERLING PLAINTIFF

v. Case No. 4:20-cv-4065

CENTERPOINT ENERGY

SERVICES COMPANY, LLC DEFENDANT

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant CenterPoint Energy Services, LLC’s Motion for Summary

Judgment. ECF No. 30. Plaintiff Anthony Sterling has responded. ECF No. 39. Defendant has

replied. ECF No. 43. The Court finds the matter ripe for consideration.

I. BACKGROUND

At all times relevant to this matter, Plaintiff Anthony Sterling was employed by Defendant

CenterPoint Energy Services Company, LLC. On the night of September 18, 2018, Plaintiff, who

is African American, was informed by his daughter that an individual named Traedarreon Davis

(“Davis”) had called her and threatened to kill himself. Plaintiff called Davis regarding the

previous call he had made to his daughter. The phone call ended with Davis cursing at Plaintiff

and hanging up.

The next morning, Plaintiff’s daughter informed him that Davis had made Facebook posts

threatening Plaintiff and challenging Plaintiff to confront Davis in person. Before reporting to

work, Plaintiff, while wearing his work uniform and driving his work truck, drove to Davis’

father’s home to speak with Davis’ father regarding the phone call and Facebook posts. After

determining that Davis’ father was not at home, Plaintiff drove to Davis’ mother’s house.

Upon arriving, Davis and another individual were outside the house. Plaintiff exited his

vehicle and approached Davis. A physical altercation ensued in which Plaintiff eventually took

out a wooden stick kept in his truck bed and struck Davis with it.1 Plaintiff returned to his truck

and left to locate Davis’ grandmother.

Plaintiff could not locate Davis’ grandmother at her home, so Plaintiff decided to leave and

report to work. While leaving Davis’ grandmother’s home, Plaintiff saw Davis in the road with a

baseball bat. Davis struck Plaintiff’s truck as he drove past him. Plaintiff stopped the truck to

inspect for damage. While the truck was not damaged, Plaintiff told Davis not to strike the truck

again. Another altercation ensued. Plaintiff eventually grabbed a golf club from the back of his

truck and struck Davis in the face.

Plaintiff subsequently drove away and called the police, who interviewed him later that

day. Plaintiff also contacted his work supervisor, Tony Donahoe, to inform him of the incident.

Tony Donahoe relayed the information to his own supervisor, Keith Cragg. Defendant

subsequently suspended Sterling without pay while they investigated the incident.

At the conclusion of its investigation, Defendant determined that Plaintiff had violated

several of its policies during the incident. The policies were Defendant’s Standards of

Conduct/Business Ethics Policy, Performance Expectations Policy, and Company Driver Policy.

On October 4, 2019, Defendant terminated Plaintiff’s employment, citing the violation of those

policies during the incident with Davis. Plaintiff was also charged with third degree battery for

his actions during the incident, but those charges were dismissed. However, an Arkansas court

did issue a year-long “no-contact” order prohibiting Plaintiff from contacting Davis. At the times

relevant to this matter, Plaintiff was employed by Defendant and working in a “Service Tech III”

position.

1 Plaintiff disputes any suggestion in Defendant’s recitation of the facts that Plaintiff started the altercation. Plaintiff

asserts that he was defending himself from Davis. ECF No. 39-1, p. 1.

On August 13, 2020, Plaintiff filed his Complaint against Defendant in this Court.2 ECF

No. 4. Plaintiff brought his claim under the Arkansas Civil Rights Act (“ACRA”), alleging that

Defendant terminated his employment because of his race. Id. at p. 1-2. On January 14, 2022,

Defendant filed its Motion for Summary Judgment. ECF No. 30. Defendant argues that Plaintiff

has failed to support an element of his claim and cannot rebut Defendant’s proffered non-

discriminatory reason for terminating Plaintiff. ECF No. 32, p. 8-13. Defendant also argues that

Plaintiff cannot recover punitive damages for his claim. Id. at p. 16-17. Plaintiff responded,

arguing that his claim is properly supported because he can point to a similarly situated white

employee who engaged in comparable behavior while on the job and was not terminated from his

employment. ECF No. 39, p. 1-4. Plaintiff also argues that there are disputed issues related to

self-defense and the correct application of Defendant’s policies. Id. at p. 4-5. Defendant replied,

arguing that the actions taken by the other employee cannot be viewed as comparable behavior

and that Plaintiff has failed to rebut the non-discriminatory reason for his firing. ECF No. 43, p.

2-5.

II. LEGAL STANDARD

“Summary judgment is appropriate if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Hess v. Union Pac.

R.R. Co., 898 F.3d 852, 856 (8th Cir. 2018) (citation omitted). Summary judgment is a “threshold

inquiry of . . . whether there is a need for trial—whether, in other words, there are genuine factual

issues that properly can be resolved only by a finder of fact because they reasonably may be

resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A

2 The Court has jurisdiction over this claim pursuant to 28 U.S.C. § 1332 diversity jurisdiction. Plaintiff is a resident

of Arkansas. Defendant is a Texas limited liability company with its principle place of business in Texas. The amount

in controversy exceeds $75,000. ECF No. 1, p. 2.

fact is material only when its resolution affects the outcome of the case. See id. at 248. A dispute

is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either

party. See id. at 252.

In deciding a motion for summary judgment, the Court must consider all the evidence and

all reasonable inferences that arise from the evidence in the light most favorable to the nonmoving

party. See Nitsche v. CEO of Osage Valley Elec. Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The

moving party bears the burden of showing that there is no genuine issue of material fact and that

it is entitled to judgment as a matter of law. See Enter. Bank v. Magna Bank, 92 F.3d 743, 747

(8th Cir. 1996). The nonmoving party must then demonstrate the existence of specific facts in the

record that create a genuine issue for trial. See Krenik v. Cnty. of LeSueur, 47 F.3d 953, 957 (8th

Cir. 1995). However, a party opposing a properly supported summary judgment motion “may not

rest upon mere allegations or denials . . . but must set forth specific facts showing that there is a

genuine issue for trial.” Anderson, 477 U.S. at 256. A party that fails to respond to any basis of a

motion for summary judgment effectively waives any argument in opposition to that aspect of a

motion for summary judgment. See Department of Labor v. EJ’s Cleaning Services, Inc., 2020

WL 1432048 at *1 (E.D. Ark. March 19, 2020) (citing Satcher v. Univ. of Ark. at Pine Bluff Bd.

of Trs., 558 F.3d 731, 735 (8th Cir. 2009)).

Summary judgment determinations are not unique for discrimination cases and “district

courts should not ‘treat discrimination differently from other ultimate questions of fact.’”

Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (quotation omitted).

“Although employment discrimination cases are ‘often fact intensive and dependent on nuance in

the workplace, they are not immune from summary judgment.’” Trierweiler v. Wells Fargo Bank,

639 F.3d 456, 459 (8th Cir. 2011) (quotation omitted).

III. DISCUSSION

A. Plaintiff’s Prima Facie Claim

Defendant’s motion for summary judgment argues that Plaintiff has failed to support his

prima facie claim of racially discriminatory firing under ACRA. ECF No. 32, p. 8-11.

Specifically, Defendant argues that Plaintiff has failed to show that the circumstances surrounding

his termination create an inference of discrimination. Id. at p. 8-9. Defendant contends that

Plaintiff’s comparator, Clifton Cross3 (“Cross”), engaged in substantially different behavior. Id.

at p. 9-10. Defendant notes that Cross, though in his work clothes and driving his work truck, only

engaged in a verbal argument or confrontation with a Sheridan Water Works employee over an

issue related to Cross’ personal water bill. Id. Defendant further notes that Cross was reprimanded

for this incident. Id. at p. 10. Defendant contends that this incident is not remotely comparable to

Plaintiff’s incident in type or seriousness and does not qualify under the standard for determining

if an employee is similarly situated to create an inference of discrimination. Id. at p. 10-11.

Therefore, Defendant concludes that Plaintiff has failed to establish a prima facie claim of race

discrimination. Id. at p. 11.

Plaintiff argues in his response that he has satisfied his burden of demonstrating that the

circumstances of his termination create an inference of discrimination. ECF No. 39 at p. 1-3.

Plaintiff contends that Defendant has applied an erroneously narrow standard for determining if

employees are similarly situated. Id. at p. 1-2. Applying the more lenient standard that only

requires similar conduct and disparate punishment, Plaintiff contends that he has properly alleged

3 Clifton Cross was also in a Service Technician III position during the incident for which he was reprimanded. ECF

No. 32, p. 8.

that a similarly situated white employee was more leniently disciplined for a similar incident. Id.

at p. 2-3. Plaintiff concludes that his claim is properly supported and that Defendant’s motion for

summary judgment should be denied. Id. at p. 3.

Defendant argues in its reply that Plaintiff is incorrect regarding the less stringent standard

for who constitutes a similarly situated employee. ECF No. 43, p. 2-3. Defendant contends that

Plaintiff’s citation in support of the more permissive standard is to precedent that has been

subsequently abandoned by the Eighth Circuit. Id. Defendant also argues that Plaintiff’s prima

facie claim would fail even under the outdated and more lenient standard. Id. at p. 3. Defendant

contends that no reasonable fact finder could conclude that Cross’ exclusively verbal confrontation

can be viewed as a similar action to Plaintiff’s multi-phase physical confrontation with Davis. Id.

at p. 3-4. Therefore, Defendant concludes that Plaintiff has not presented allegations that can

support his claim and that Defendant should be granted summary judgment. Id. at p. 4.

Under ACRA, an individual is “to be free from discrimination because of race . . . This

right shall include, but not be limited to: the right to obtain and hold employment without

discrimination.” Ark. Code § 16-123-107(a)(1). Claims under ACRA for employment

discrimination are analyzed in the same manner as employment discrimination claims under Title

VII of the Civil Rights Act.4 See Davis v. KARK-TV, Inc., 421 F.3d 699, 703-04 (8th Cir. 2005).

A plaintiff bringing a claim for race discrimination can survive a motion for summary judgment

by presenting admissible evidence that either directly indicates unlawful discrimination or

indirectly creates an inference of unlawful discrimination. Gibson v. American Greetings Corp.,

4 The Supreme Court has determined that discrimination claims under 42 U.S.C. § 1981 must be analyzed under a

“but for” causation standard as opposed to the “motivating factor” standard that applies to Title VII claims. See

Comcast Corporation v. Nat’l Ass’n of African American-Owned Media, 140 S.Ct. 1009, 10019 (2020). Defendant

opines that the language of 42 U.S.C. § 1981 and ACRA are similar and that ACRA claims should consequently be

analyzed under a “but for” causation standard as well. ECF No. 32, p.7 n3. However, Defendant does not cite to any

precedent that indicates a shift away from analyzing ACRA claims similarly to Title VII claims. Therefore, the Court

will continue to analyze ACRA claims and Title VII claims similarly.

670 F.3d 844, 853 (8th Cir. 2012) (citation omitted). If a plaintiff presents indirect evidence, then

a court must analyze the claim under the McDonnell Douglas burden shifting framework. Id.

Plaintiff does not present direct evidence of racial discrimination in his complaint or his response

to Defendant’s motion for summary judgment. Plaintiff and Defendant’s arguments regarding the

instant motion all relate to an element under the burden shifting framework. Therefore, the Court

will analyze Plaintiff’s claim under the burden shifting framework.

Under the McDonnell Douglas burden shifting framework, a plaintiff must first establish a

prima facie claim of discrimination. Id. at 854. To establish a prime facie claim of discrimination,

a plaintiff must show that “(1) he is a member of a protected class, (2) he met his employer’s

legitimate expectations, (3) he suffered an adverse employment action, and (4) the circumstances

give rise to an inference of discrimination.” Id. (quoting Lake v. Yellow Trasnp., Inc., 596 F.3d

871, 874 (8th Cir. 2010)). A circumstance that may give rise to an inference of discrimination is

one in which a similarly situated employee outside a plaintiff’s protected class was treated more

favorably. Gaither v. Arkansas Foundation for Medical Care, 2013 WL 4496439 at *5 (W.D.

Ark. Aug. 20, 2013) (citing Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011)). One view

of “similarly situated” simply requires that another employee engage in acts of “comparable

seriousness” to a plaintiff and be more favorably treated. See Ridout v. JBS USA, LLC, 716 F.3d

1079, 1085 (8th Cir. 2013). Another view is more demanding and requires that the other employee

and a plaintiff be similar in more respects, such as having the same supervisor and having the same

work standards. See Moss v. Texarkana Arkansas School District, 240 F.Supp.3d 966, 975 (W.D.

Ark. Mar. 1, 2017) (collecting Eighth Circuit cases).

The Court finds that Plaintiff has failed to establish his prima facie claim of discrimination

under ACRA because he has not sufficiently alleged that a similarly situated employee was treated

more favorably. Under the standard that Plaintiff argues, a similarly situated employee simply

needs to have allegedly been involved in similar conduct and treated more favorably.5 See

Wimbley v. Cashion, 588 F.3d 959, 962 (8th Cir. 2009). However, applying what Plaintiff deems

the appropriate and less demanding standard defeats his claim. Plaintiff was involved in two

physical confrontations in quick succession that led to criminal charges and a no-contact order.

This cannot reasonably be viewed as similar conduct or of comparable seriousness to the verbal

disputes that Cross engaged in regarding his personal water bill. The only connections Plaintiff

draws between him and Cross is that they engaged is some type of dispute while wearing their

work uniforms and driving their work vehicle. The Court views this as inadequate to create a

question of fact that Plaintiff and Cross were similarly situated. Even for instances where a

plaintiff and another employee engaged in the same exact dispute, the differences in how they

engaged in that dispute can prevent them from being considered similarly situated. See Ward v.

Procter & Gamble Paper Products Co., 111 F.3d 558, 561 (8th Cir. 1997) (an employee that was

involved in a physical altercation with a plaintiff but was not fired was not similarly situated

because the employee did not escalate in the same manner as plaintiff and therefore their conduct

was objectively different). Viewing the facts presented by Plaintiff in the light most favorable to

him as the non-moving party, a reasonable fact finder could not conclude that the conduct of

Plaintiff and the conduct of Cross were objectively similar or of comparable seriousness. See

5 The Court understands that there are dueling, and sometimes contradictory, views on determining “similarly

situated.” The Eighth Circuit at one instance will state that the strict standard requiring employees be similar in “all

relevant respects” apply, but also limit those “relevant” respects to conduct and disparity in discipline. See Chappell

v. Bilco Co., 675 F.3d 1110, 1119 (8th Cir. 2012). The Eighth Circuit has also applied the strict “all relevant respects”

standard to only require that another employee was disciplined differently for conduct of “comparable seriousness.”

Ridout, 716 F.3d at 1085. This Court has applied the stricter standard and made “relevant respects” more exhaustive

than the two factors articulated in Chappell. See Parham v. Habilitation Center, LLC, Case No. 4:14-cv-4157-SOH

2017 WL 3971100 at *8 (W.D. Ark. Sept. 8, 2017) (citing Eighth Circuit cases demanding more factors be included

in the “similarly situated” analysis). The Court does not find it necessary to untangle and determine what the clear

standard is for this matter because Plaintiff fundamentally fails to show that Cross engaged in conduct that could be

considered similar or of comparable seriousness under either standard.

Ridout, 716 F.3d at 1085. Therefore, Plaintiff has not alleged facts sufficient to support the fourth

element of his prima facie discrimination claim and his claim must fail as a matter of law.

B. Non-Discriminatory Reason for Termination and Pretext

Defendant argues that even if Plaintiff established his prima facie claim, Defendant has

proffered a non-discriminatory reason for Plaintiff’s termination that rebuts his claim. ECF No.

32, p. 11-15. Defendant reiterates that it terminated Plaintiff for violating several company policies

during the incident with Davis. Id. at p. 11. Defendant contends that Plaintiff has not and cannot

show that there is any evidence of discriminatory treatment during his employment that indicates

Defendant’s stated reason for terminating Plaintiff is simply a pretext for a racially motivated

termination. Id. at p. 11-12. Defendant also contends that Plaintiff’s argument that being similarly

situated to Cross shows pretext should also fail because Plaintiff and Cross are not similarly

situated. Id. at p. 12-14.

Plaintiff’s response argues that he was similarly situated to Cross and therefore

Defendant’s stated reason for terminating his employment is pretext. ECF No. 39, p. 3-4. Plaintiff

reiterates that Defendant applies too strict of a standard for determining what a similarly situated

employee is and that Plaintiff has met his burden of showing that he and Cross were similarly

situated but incurred disparate treatment. Id. Defendant’s reply again argues that the standard

Plaintiff applies for similarly situated employees is incorrect and that Plaintiff’s allegations cannot

meet the requirements of the appropriate standard. ECF No. 43, p. 4-5.

If a plaintiff has made a sufficient prima facie claim of discrimination under McDonnell

Dounglas, the burden then shifts to a defendant to offer a non-discriminatory reason for its action

in order to rebut a plaintiff’s claim. Gibson, 670 F.3d at 854. If a defendant presents a non-

discriminatory rationale for firing a plaintiff, then the burden shifts back to the plaintiff to prove

that the non-discriminatory reason offered by a defendant is simply a pretext for a racially

motivated discharge. See id. Violation of a company policy is a legitimate non-discriminatory

reason for termination that a defendant can put forth to rebut a prima facie claim of discrimination.

See Putman v. Unity Health System, 348 F.3d 732, 736 (8th Cir. 2003). One way a plaintiff can

show that a defendant’s proffered reason was pretext is by alleging facts demonstrating that

defendant “treated similarly-situated employees in a disparate manner.” Gibson, 670 F.3d at 854.

The Court finds that Plaintiff has failed to show that Defendant’s non-discriminatory

rationale for his termination is a pretext for a racially motivated termination. As determined above,

Plaintiff failed to establish that he and Cross were similarly situated employees under either the

broad or narrow standard. It follows that Plaintiff has failed to show that Defendant’s citation of

its company policies is a pretext, especially considering that the standard for showing similarly

situated at the pretext stage is “rigorous.” See Edwards v. Hiland Roberts Day, Co., 860 F.3d

1121, 1126 (8th Cir. 2017). Plaintiff brings forth no other evidence or allegations suggesting that

Defendant’s proffered reason for his termination was motivated by any racial animus.

Accordingly, the Court finds that even if Plaintiff had established his prima facie claim, he has

failed to allege facts sufficient to show that Defendant’s claimed reason for his termination was a

pretext for a racially motivated termination. Therefore, viewing the facts in the light most

favorable to Plaintiff, the Court finds that his claim for racial discrimination must fail as a matter

of law.

C. Punitive Damages

Defendant argues that even if Plaintiff has properly supported a claim of race

discrimination, Plaintiff cannot recover punitive damages. ECF No. 32, p. 16-17. Defendant

contends that Plaintiff has at no time alleged the necessary malice or reckless indifference on

Defendant’s part to justify any punitive damages. Id. Plaintiff did not address this argument in

his response to the instant motion. Therefore, Plaintiff has effectively waived any argument in

opposition. See EJ’s Cleaning Services, Inc., 2020 WL 1432048 at *1.

Punitive damages may be awarded for intentional discrimination by an employer who acts

with malice or reckless indifference to protected rights. See Canny v. Dr. Pepper/Seven-Up

Bottling Group, Inc., 439 F.3d 894, 903 (8th Cir. 2006) (citations omitted). Malice or reckless

indifference refers to an employer’s state of mind and their knowledge that their action may be

violating federal law. See id. (citation omitted).

Plaintiff at no point in his complaint or his response to the instant motion states that he

seeks punitive damages. Plaintiff has not made any attempt to show the malice or reckless

indifference to his rights by Defendant that would be necessary to collect punitive damages for his

claim. See id. Accordingly, the Court finds that Plaintiff cannot recover punitive damages even

if he had sufficiently alleged a valid discrimination claim.

D. Remaining Issues

Plaintiff’s response argues that there are two other issues that preclude granting

Defendant’s motion for summary judgment. ECF No. 39, p. 4-5. First, Plaintiff argues that he

acted in self-defense during the incident with Davis and that this raises a question of fact as to

whether his termination was justified and whether Defendant’s stated reason is pretextual. Id.

Next, Plaintiff argues that Defendant is mistaken in the application of its policies to the incident

insofar as Defendant asserts that Plaintiff violated the policy prohibiting weapons in company

vehicles. Id. at p. 6. Plaintiff contends that the stick he kept in his truck was a tool to get animals

away from gas meters and that there is a genuine question of fact regarding whether Defendant

correctly applied its policy toward Plaintiff. Id.

Defendant’s reply argues that these issues present no questions of material fact precluding

summary judgment. ECF No. 43, p. 5-8. For the self-defense issue, Defendant contends that the

only legal support Plaintiff cites for self defense having any bearing on wrongful termination is

completely irrelevant to Plaintiff’s claim. Id. at p. 6. Regarding Plaintiff’s argument about the

stick, Defendant contends that even if it was mistaken in concluding that the stick was a weapon,

an incorrect application of its policies does not indicate that Plaintiff’s termination was based on

discriminatory motivations. Id. at p. 6-8.

Plaintiff has failed to demonstrate that a genuine question of fact regarding self-defense is

material to his claim. The only legal support Plaintiff draws on to assert that self-defense is

relevant is Cocchi v. Circuit City Stores, Inc., 2006 WL 870736 (N.D. Cal. Apr. 3. 2006).

However, that case involved termination based entirely on a physical confrontation and no claims

of discrimination. Id at *1-2. Self-defense was only relevant to that matter because of certain

provisions of the California Constitution. Id. at *4-7. Plaintiff makes no further effort to explain

how this case is relevant to a discrimination claim. The Court finds that Plaintiff has failed to

show how him acting in self-defense is material to his discrimination claim and therefore this is

not a factual issue precluding summary judgment.

The Court also finds that Plaintiff has failed to demonstrate that any incorrect application

of Defendant’s policies is material to his discrimination claim. A plaintiff cannot show pretext by

simply alleging that they did not actually violate the policy that an employer proffered as the reason

for termination. See Grey v. City of Oak Grove, Mo., 396 F.3d 1031, 1035-36 (8th Cir. 2005). A

plaintiff must further show that the employer’s cited reason is fabricated to cover discriminatory

motive and not simply a mistake on the employer’s part. See id. (citing Dhyne v. Meiners

Thriftway, Inc., 184 F.3d 983, 989 (8th Cir. 1999); see also Stuart v. General Motors Corp., 217

F.3d 621, 637 (8th Cir. 2000) (noting that factual errors or poor judgment in deciding to terminate

an employee for violating an employer’s policies are not issues for a Title VII discrimination

claim). Here, Plaintiff has only alleged that Defendant was incorrect in determining that the stick

Plaintiff kept in his work vehicle was a weapon under its policies. Assuming that the stick should

not have been considered a weapon, Plaintiff must further allege that labeling the stick as a weapon

was intentional to hide discriminatory motivation. See City of Oak Grove, 396 F.3d at 1035-36.

Plaintiff has not alleged that incorrectly labeling the stick as a weapon was done because Defendant

wanted to conceal its discrimination. Therefore, any factual dispute over whether the stick was

actually a weapon is not material to Plaintiff’s claim and cannot preclude summary judgment.

IV. CONCLUSION

For the reasons stated above, the Court finds that Defendant’s Motion for Summary

Judgment (ECF No. 30) should be and hereby is GRANTED. Plaintiff’s claim is hereby

DISMISSED WITH PREJUDICE.

IT IS SO ORDERED, this 24th day of February, 2022.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge