The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ARTIS CHARLES WHITFIELD CIVIL ACTION
VERSUS NO. 17-17450
WOOD GROUP PSN, INC. MAGISTRATE JUDGE
JOSEPH C. WILKINSON, JR.
ORDER AND REASONS ON MOTIONS
Plaintiff, Artis Charles Whitfield, brings this employment discrimination action
against his former employer, Wood Group PSN, Inc. (“Wood Group”), alleging claims of
discriminatory termination, failure to promote and failure to hire based on his race and age
in violation of Title VII, 42 U.S.C. § 2000e et seq., and the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Record Doc. No. 1. This matter was
referred to a United States Magistrate Judge for all proceedings and entry of judgment in
accordance with 28 U.S.C. § 636(c) upon written consent of all parties. Record Doc. No. 27.
On May 14, 2019, Wood Group filed a Motion for Summary Judgment supported by
affidavits, verified exhibits and an excerpted transcript of plaintiff’s deposition testimony.
Record Doc. No. 39. Whitfield, who has been proceeding pro se since his counsel was
permitted to withdraw, Record Doc. No. 34, obtained an extension of time both to obtain new
counsel and to respond to the motion. Record Doc. No. 40. The court orally advised plaintiff
during a May 15, 2019 status conference that his response should include sworn affidavits,
including his own, or other evidentiary materials that set forth specific facts demonstrating
that there is a genuine issue of material fact for trial in this case. Id.
Whitfield filed a timely memorandum in opposition to defendant’s summary judgment
motion, Record Doc. No. 44, which incorporates plaintiff’s own affidavit and five affidavits
of his former co-workers. Plaintiff submitted no other evidence. Defendant received leave
to file a reply memorandum. Record Doc. Nos. 50, 52, 53.
On July 11, 2019, Whitfield filed a Motion to Appoint Counsel. Record Doc. No. 46.
Under the court’s protocol for appointment of counsel from its Civil Pro Bono Panel,
“Counsel from the Panel must not be appointed as a matter of course or ordinary practice,
since there is no automatic right to appointment of counsel in civil cases.” Resolution of the
En Banc Court ¶ (3)(e) (E.D. La. Apr. 22, 2014, adopted as permanent Oct. 15, 2016). In
Title VII cases, the court must consider three factors: (1) the merits of plaintiff’s
discrimination claims; (2) plaintiff’s efforts to secure counsel; and (3) plaintiff’s financial
ability to retain counsel. Id.; Gonzalez v. Carlin, 907 F.2d 573, 580 (5th Cir. 1990). The court
took plaintiff’s sworn testimony concerning his efforts to secure counsel and financial status.
Record Doc. No. 47. Although plaintiff indicated that he engaged in unsuccessful efforts to
secure new counsel, his testimony established that he is not financially eligible for appointed
counsel. Id. The court deferred ruling on the Motion to Appoint Counsel, pending review and
evaluation of all briefing on defendant’s summary judgment motion, to consider whether the
third relevant factor, the merits of plaintiff’s case, tips the balance and warrants appointment
of counsel. Id.
On July 11, 2019, plaintiff filed a Motion for Issuance of Subpoenas. Record Doc. No.
45. Defendant filed a timely opposition. Record Doc. No. 48.
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Having considered the complaint, the record, the submissions of the parties and the
applicable law, IT IS ORDERED that plaintiff’s Motions to Appoint Counsel and for
Issuance of Subpoenas are DENIED and that defendant’s Motion for Summary Judgment is
GRANTED, for the following reasons.
I. PLAINTIFF’S MOTIONS
Plaintiff’s Motion to Appoint Counsel is denied. Evaluation of the briefing submitted
by both parties in connection with defendant’s Motion for Summary Judgment indicates that
plaintiff’s case lacks merit, for the reasons discussed below. Thus, balancing of the Gonzalez
factors militates against appointment of counsel.
Plaintiff’s Motion for Issuance of Subpoenas is also denied. The motion seeks leave
of court to subpoena plaintiff’s own employment records and those of Damian Daigle,
Brandon Godchaux and Bradley Prejean. Record Doc. No. 45. Because plaintiff’s motion
was filed more than two months after both the discovery deadline had passed and defendant
had filed its summary judgment motion, the court construes the motion as (1) seeking leave
to conduct discovery after expiration of the scheduling order deadline pursuant to Fed. R.
Civ. P. 16(b); and (2) seeking more time under Fed. R. Civ. P. 56(d) to obtain facts to support
his opposition to the pending summary judgment motion.
Where – as here – the court has entered a scheduling order setting a deadline, Record
Doc. No. 29, the schedule “may be modified only for good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b)(4) (emphasis added). “In determining whether the movant has
met its burden under Rule 16(b)(4), the court considers four factors: (1) the party’s
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explanation, (2) the importance of the requested relief, (3) potential prejudice in granting the
relief, and (4) the availability of a continuance to cure such prejudice.” Choice Hotels Int’l,
Inc. v. Goldmark Hospitality, LLC, 2014 WL 80722, at *2 (N.D. Tex. Jan. 9, 2014)
(quotation omitted) (citing S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d
533, 536 (5th Cir. 2003)); accord Borden v. United States, 537 F. App’x 570, 574 (5th Cir.
2013) (citing Reliance Ins. Co. v. La. Land & Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997);
Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)). The good cause standard
applies to discovery deadlines established by the court, Colonial Freight Sys., Inc. v. Adams
& Reese, L.L.P., 542 F. App’x 142, 145 (5th Cir. 2013); Paz v. Brush Engineered Materials,
Inc., 555 F.3d 383, 390 (5th Cir. 2009), and “require[s] the movant ‘to show that the
deadlines cannot reasonably be met despite the diligence of the party needing the
extension.’” Puig v. Citibank, N.A., 514 F. App’x 483, 487–88 (5th Cir. 2013) (quoting S &
W Enters., 315 F.3d at 535).
Plaintiff provides no persuasive explanation for his delay in seeking the requested
employment records or why he could not meet the discovery deadline. His “Motion for
Opposition of Summary Judgment” states: “Due to the lack of diligence on behalf of my
previous attorney, documentation for my case was not submitted.” Record Doc. No. 44 at p.
1. As noted above, the Fifth Circuit in Puig and S & W has not accepted lack of diligence as
a good reason for failure to meet deadlines. As to importance, production of the requested
records appears unimportant because plaintiff’s entire personnel file and portions of Prejean’s
personnel file relevant to plaintiff’s claims against him have already been produced to
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plaintiff in discovery. Record Doc. No. 39-2 at pp. 5–25. Production of Godchaux’s records
is unimportant because, as discussed in detail below, Godchaux is not a Wood Group
employee and plaintiff’s failure to promote claim concerning Godchaux is time-barred and
fails on the merits. Daigle’s records are unimportant because plaintiff makes no claims
concerning Daigle’s employment status in this matter and, even if he did, plaintiff had ample
time to request these records during the 12 months of discovery provided in this case.
Prejudice to defendant would be substantial because it already has filed its summary
judgment motion and plaintiff has provided no explanation for how the additional discovery
will create issues of material fact that would preclude summary judgment in this matter. A
continuance would not cure defendant’s substantial prejudice. Plaintiff cannot establish good
cause to conduct discovery after expiration of the discovery deadline because all four factors
weigh against permitting him to do so.
Rule 56(d) provides that, “[i]f a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition, the court may: . . .
allow time to obtain affidavits or declarations or to take discovery.” (Emphasis added).
Whitfield has submitted no affidavits or declarations to support the requested extension of
time. “Plaintiff’s failure to attach such an affidavit is sufficient grounds to deny [his]
motion.” McDonald v. Kansas City S. Ry., 2017 WL 1709353, at *4 (E.D. La. May 3, 2017)
(citing Sandusky Wellness Ctr., LLC v. Medco Health Solutions, Inc., 788 F.3d 218, 226 (6th
Cir. 2015); Scotch v. Letsinger, 593 F. App’x 276, 278 (5th Cir. 2014); Leza v. City of
Laredo, 496 F. App’x 375, 377–78 (5th Cir. 2012)).
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However, even if the court considered the motion, despite the absence of any
supporting affidavit,
the party filing the motion must demonstrate how additional discovery will
create a genuine issue of material fact. In particular, the party opposing
summary judgment must set forth a plausible basis for believing that specified
facts, susceptible of collection within a reasonable time frame, probably exist
and indicate how the emergent facts, if adduced, will influence the outcome of
the pending summary judgment motion. That party must also have diligently
pursued discovery.
Jacked Up, L.L.C. v. Sara Lee Corp., 854 F.3d 797, 816 (5th Cir. 2017) (citations and
quotations omitted) (emphasis added). Whitfield neither specifies what facts he seeks from
the requested records nor explains how those unspecified facts or additional discovery might
influence the outcome of Wood Group’s summary judgment motion. In his summary
judgment opposition, Whitfield relies on facts that are exclusively within his own knowledge
and the knowledge of former co-workers. Because “it appears that further discovery will not
provide evidence creating a genuine issue of material fact,” the court denies plaintiff’s Rule
56(d) motion and proceeds to decide defendant’s motion for summary judgment. Id.
II. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
A. Standards of Review
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). “Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and upon
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motion, against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which the party will bear the burden of proof
at trial.” Id. A party moving for summary judgment bears the initial burden of demonstrating
the basis for summary judgment and identifying those portions of the record, discovery and
any affidavits supporting the conclusion that there is no genuine issue of material fact. Id. at
323. If the moving party meets that burden, then the nonmoving party must use evidence
cognizable under Rule 56 to demonstrate the existence of a genuine issue of material fact.
Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for
the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996). The
substantive law identifies which facts are material. Id. Material facts are not genuinely
disputed when a rational trier of fact could not find for the nonmoving party upon a review
of the record taken as a whole. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Equal Emp’t Opportunity Comm’n v. Simbaki, Ltd., 767 F.3d 475,
481 (5th Cir. 2014). “[U]nsubstantiated assertions,” “conclusory allegations,” and merely
colorable factual bases are insufficient to defeat a motion for summary judgment. See
Anderson, 477 U.S. at 249–50; Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on
a summary judgment motion, a court may not resolve credibility issues or weigh evidence.
See Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th
Cir. 2008). Furthermore, a court must assess the evidence, review the facts, and draw any
appropriate inferences based on the evidence in the light most favorable to the party opposing
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summary judgment. See Tolan v. Cotton, 572 U.S. 650, 656 (2014); Daniels v. City of
Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet, a court only draws reasonable inferences
in favor of the nonmovant “when there is an actual controversy, that is, when both parties
have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888
(1990)).
After the movant demonstrates the absence of a genuine dispute, the nonmovant must
articulate specific facts and point to supporting, competent evidence that may be presented
in a form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622,
625 (5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(2). Such facts must create more than
“some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. When the
nonmovant will bear the burden of proof at trial on the dispositive issue, the moving party
may simply point to insufficient admissible evidence to establish an essential element of the
nonmovant’s claim in order to satisfy its summary judgment burden. See Celotex, 477 U.S.
at 322–25; Fed. R. Civ. P. 56(c)(1)(B). Unless there is a genuine issue for trial that could
support a judgment in favor of the nonmovant, summary judgment must be granted. See
Little, 37 F.3d at 1075–76.
B. The Undisputed Material Facts
The competent summary judgment evidence establishes the following material facts,
which are accepted as undisputed solely for purposes of the pending summary judgment
motion. Wood Group is a company that provides operations and maintenance services to the
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oil, gas and petrochemical industries. Record Doc. No. 39-2 at p. 1. As a subcontractor, it
provides personnel to its clients’ offshore drilling platforms in the Gulf of Mexico, including
those operated by former client Energy XXI. Id. at p. 2. Client platforms are often staffed
with personnel employed by multiple subcontractors. Id. Wood Group has adopted a written
company policy that prohibits discrimination against any employee on the basis of race,
religion, color, nationality ethnicity, disability, age or any other characteristic protected by
law. Id. at p. 4.
When hiring production operators to staff client platforms, Wood Group conducts
assessment tests of applicants and assigns them to either an A-, B- or C-Operator level, with
A-Operators being the most experienced and bearing the most responsibility. Id. at p. 2. Lead
operators, who are tasked with directing and supervising the production crew on the platform,
are chosen from the pool of A-Operators. Id.
A decision to promote an operator working on a client platform to a higher level must
be approved by the client. Id. The client has the right to reject or remove Wood Group
personnel from its platform. Id. The ultimate authority to reject or remove Wood Group
personnel from a client platform lies with the client’s foreman. Id. When a client rejects or
removes a Wood Group employee from a platform, Wood Group’s regular practice is to
place that employee on “float” for 30 days, during which the employee is available for other
assignments if they arise. Record Doc. Nos. 39-2 at p. 3; 39-4 at pp. 18–21, 42–43. If another
assignment does not become available within the 30-day period, Wood Group’s regular
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business practice is to lay off the employee for lack of work/reduction-in-force. Record Doc.
No. 39-2 at p. 3.
Whitfield, a 45-year-old African-American/American-Indian, initially was hired by
Wood Group on January 21, 2011, and assigned to work as a C-Operator on a platform
operated by Wood Group client Energy XXI. Record Doc. No. 39-4 at p. 74. He was
promoted to B-Operator on April 4, 2011. Id. at pp. 23–25. On May 3, 2013, plaintiff was
involuntarily terminated from Wood Group after testing positive on a random drug screening.
Record Doc. Nos. 39-2 at p. 12; 39-4 at p. 26. After plaintiff completed a substance abuse
program, Wood Group re-hired him on July 1, 2014, as a B-Operator and assigned him to
Energy XXI’s Main Pass 73A (“MP-73A”) platform. Record Doc. Nos. 39-2 at p. 6; 39-4 at
pp. 27–28. Damian Daigle, a Wood Group employee, was plaintiff’s lead operator and direct
supervisor on MP-73A. Record Doc. Nos. 39-3 at p. 1; 39-4 at p. 9.
Bradley Prejean was another Wood Group production operator on MP-73A. Prejean
was assigned to MP-73A as a C-Operator on March 4, 2013. Record Doc. No. 39-2 at p. 19.
He was promoted to B-Operator on February 16, 2014, and was then promoted to A-Operator
on January 18, 2015. Id. at pp. 15, 17.
Brandon Godchaux was another production operator on MP-73A. Wood Group has
no record of employment for Godchaux, but record evidence indicates that he was employed
by Sirius, another subcontractor. Record Doc. Nos. 39-2 at p. 3; 39-3 at pp. 1, 8. Godchaux
was assigned to MP-73A on an unknown date, but at least before December 26, 2015, and
came to the platform as an A-Operator. Record Doc. No. 39-3 at pp. 1, 8. Wood Group did
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not have any authority over or provide any input in Godchaux’s promotion decisions. Id. at
p. 1.
After plaintiff learned through word of mouth that an A-Operator position was
available on MP-73A, plaintiff verbally asked Daigle three or four times to recommend him
for the job by informing the Energy XXI foreman of his interest and qualifications. Record
Doc. No. 39-4 at pp. 29–37. Daigle did not recommend plaintiff for promotion based on his
assessment that plaintiff lacked necessary qualifications for the A-Operator position. Record
Doc. No. 39-3 at p. 2. Specifically, Daigle believed that plaintiff exhibited a negative
attitude, was not a “team player,” lacked leadership skills, did not mentor others, lacked
capacity for detailed troubleshooting, disrespected A-Operators’ authority, and balked at
constructive criticism or helpful demonstrations from A-Operators. Id.
Throughout his assignment to MP-73A, plaintiff repeatedly expressed his desire to
leave the platform and either work for Shell or be transferred to another platform. Record
Doc. Nos. 39-2 at pp. 23–24; 39-3 at pp. 2–3; 39-4 at pp. 20, 36, 38, 48. In or around March
2016, Whitfield engaged in a verbal altercation with Energy XXI supervisor Darryl Higgins,
in which Whitfield “started to curse and holler at Mr. Higgins for allegedly insulting him.”
Record Doc. No. 39-3 at p. 3. On April 5, 2016, in light of the Higgins incident, plaintiff’s
previously voiced displeasure about working on MP-73A and Daigle’s assessment of
plaintiff’s poor job performance, Energy XXI foremen Harry Larimer and Mark Freeman
decided to remove Whitfield from the platform. Record Doc. No. 39-2 at pp. 23–24. Energy
XXI’s reasons cited for plaintiff’s removal included his constant expression of his desire
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leave the platform and work for Shell, unhappiness with his position, inability to get along
with co-workers, disrespect of authority, overall bad attitude and lack of effort to mentor
subordinates. Id.
Larimer emailed Milton Crochet, Wood Group’s project/resource manager, and Butch
Fruge, Wood Group’s client liaison for Energy XXI, requesting that Whitfield be removed
from the platform. Id. Crochet, with Fruge’s agreement, had plaintiff removed from the
platform and placed on “float,” whereby plaintiff was available for another assignment if one
materialized. Record Doc. No. 39-2 at pp. 3, 25. Because no assignment became available
within the next 30 days, plaintiff was laid off on May 13, 2016, for lack of work/reduction-
in-force per Wood Group’s regular business practice. Id. at pp. 3, 5.
Following his termination, plaintiff applied for an A-Operator position with Wood
Group on June 22, 2016, but subsequently was not hired. Record Doc. No. 39-4 at pp. 45–47.
Plaintiff was informed that the position was filled but does not know who was selected, the
race or age of the individual selected or who made the hiring decision. Id.
Plaintiff filed a charge of discrimination with the Louisiana Commission on Human
Rights and the Equal Employment Opportunity Commission (“EEOC”) on January 10, 2017,
asserting race and age-based discriminatory termination and failure to promote claims against
Wood Group pursuant to Title VII and the ADEA. Record Doc. No. 1 at p. 8. Plaintiff did
not allege a failure to hire claim in his charge of discrimination, but does allege this claim
in his complaint. Id. at p. 4. Plaintiff did not allege retaliation or hostile work environment
claims in his charge of discrimination or his complaint, but alleges these claims for the first
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time in his affidavit in support of his opposition to the summary judgment motion. Record
Doc. No. 44-1.
C. Standards for Race and Age Discrimination Claims
Under 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 with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual's
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1)). Title VII claims are
analyzed under the burden-shifting evidentiary framework created in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), in which a plaintiff must first provide competent
evidence of a prima facie case. To establish a prima facie case of discrimination, a plaintiff
must prove 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 of the protected class, or, in the case of disparate treatment, shows that
other similarly situated employees were treated more favorably.
Standley v. Rogers, 2017 WL 958318, at *1 (5th Cir. Mar. 10, 2017) (quoting Bryan v.
McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004)); accord Buckhanan v. Shinseki, 665 F.
App’x 343, 349 (5th Cir. 2016) (citing Haire v. Bd. of Supervisors, 719 F.3d 356, 363 (5th
Cir. 2013)).
The ADEA provides that “[i]t shall be unlawful for an employer . . . to fail or refuse
to hire or discharge any individual [age 40 or above] or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). The Fifth Circuit applies the
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McDonnell Douglas framework to ADEA claims, but modifies the fourth prong such that
plaintiff must show that he was either (1) replaced by someone outside the protected class;
(2) replaced by someone younger; or (3) otherwise discharged because of his age. Jackson
v. Cal–Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010).
To establish a prima facie case for a failure to promote claim, a plaintiff must
additionally establish that he actually applied for the position at issue. Browning v. Sw.
Research Inst., 288 F. App’x 170, 175 (5th Cir. 2008). “‘The application requirement is
important to establishing’ the prima facie case ‘because it shows that the decision-maker
knew about the plaintiff and the plaintiff’s interest in the position.’” Everett v. Mississippi,
106 F. App’x 264, 266 (5th Cir. 2004) (quoting Walker v. Prudential Prop. & Cas. Ins. Co.,
286 F.3d 1270, 1275 (11th Cir. 2002)).
The elements of a prima facie case are slightly different in a reduction-in-force case.
In a reduction-in-force case, a party makes out a prima facie case of age
discrimination by showing (1) that he is within the protected age group; (2)
that he has been adversely affected by the employer’s decision; (3) that he was
qualified to assume another position at the time of the discharge; and (4)
evidence, circumstantial or direct, from which a factfinder might reasonably
conclude that the employer intended to discriminate in reaching the decision
at issue.
Tyler v. La–Z–Boy Corp., 506 F. App’x 265, 269 (5th Cir. 2013) (citing Nichols v. Loral
Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996); Amburgey v. Corhart Refractories Corp.,
936 F.2d 805, 812 (5th Cir. 1991); Thornbrough v. Columbus & Greenville R.R ., 760 F.2d
633, 644 (5th Cir. 1985)) (footnote and quotations omitted). In such a case, plaintiff must
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also show that an position for which he was qualified was available at the time of his
discharge. Creaghe v. Albemarle Corp., 98 F. App’x 972, 975 (5th Cir. 2004).
If plaintiff can establish a prima facie case under either the traditional or the
reduction-in-force standard, the second and third steps of the burden-shifting analysis are the
same. The burden of production shifts to the defendant to present a legitimate,
non-discriminatory reason for the challenged employment action. St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 507 (1993). Defendant must set forth, through admissible evidence,
“reasons for its actions which, if believed by the trier of fact, would support a finding that
unlawful discrimination was not the cause of the employment action.” Id. (emphasis in
original). “Defendant’s burden is one of production, not persuasion . . . .” Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000) (quotation omitted). The defendant
“need not prove that it was actually motivated by its proffered reason. . . . The employer need
only articulate a lawful reason, regardless of what its persuasiveness may or may not be.”
Joseph v. City of Dallas, 277 F. App’x 436, 439 (5th Cir. 2008) (quotations omitted).
“If the defendant meets its burden, the presumption of discrimination created by the
plaintiff’s prima facie case disappears and the plaintiff must meet [his] ultimate burden of
persuasion on the issue of intentional discrimination.” Machinchick v. PB Power, Inc., 398
F.3d 345, 350 (5th Cir. 2005). To meet this burden,
the plaintiff must produce substantial evidence indicating that the proffered
legitimate nondiscriminatory reason is a pretext for discrimination. The
plaintiff must rebut each nondiscriminatory reason articulated by the
employer. A plaintiff may establish pretext either through evidence of
disparate treatment or by showing that the employer’s proffered
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explanation is false or “unworthy of credence.” An explanation is false or
unworthy of credence if it is not the real reason for the adverse employment
action.
Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (citing Reeves,530 U.S. at 143)
(additional citations omitted). “In determining whether the employer’s stated reason is
false, the trier of fact may not disregard the defendant’s explanation without
countervailing evidence that it was not the real reason for the [adverse employment
action].” E.E.O.C. v. Louisiana Office of Cmty. Servs., 47 F.3d 1438, 1443 (5th Cir.
1995) “Evidence that the proffered reason is unworthy of credence must be enough to
support a reasonable inference that the proffered reason is false; a mere shadow of a
doubt is insufficient.” Id. at 1444. A factfinder can infer pretext upon a showing that the
unsuccessful employee was “‘clearly better qualified’ (as opposed to merely better or as
qualified) than the employees who are selected.” Id.
The Supreme Court held in Reeves that a trier of fact may infer the ultimate fact
of discrimination from the falsity of the employer’s explanation combined with plaintiff’s
establishment of a prima facie case.
Proof that the defendant’s explanation is unworthy of credence is simply
one form of circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive. In appropriate
circumstances, the trier of fact can reasonably infer from the falsity of the
explanation that the employer is dissembling to cover up a discriminatory
purpose. . . . Moreover, once the employer’s justification has been
eliminated, discrimination may well be the most likely alternative
explanation, especially since the employer is in the best position to put
forth the actual reason for its decision. Thus, a plaintiff’s prima facie case,
combined with sufficient evidence to find that the employer’s asserted
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justification is false, may permit the trier of fact to conclude that the
employer unlawfully discriminated.
This is not to say that such a showing by the plaintiff will always be
adequate to sustain a jury’s finding of liability. Certainly there will be
instances where, although the plaintiff has established a prima facie case
and set forth sufficient evidence to reject the defendant’s explanation, no
rational factfinder could conclude that the action was discriminatory.
Reeves, 530 U.S. at 147–48 (citations omitted) (emphasis in original).
D. Failure to Promote and Hire Claims
Wood Group argues that Whitfield’s failure to promote claims are time-barred
because the two discrete acts of promotion referenced by plaintiff occurred more than 300
days before he filed his charge of discrimination with the Louisiana Commission on Human
Rights and EEOC. Defendant further argues that Whitfield failed to exhaust administrative
remedies as to his failure to hire claim because he did not allege this claim in his charge of
discrimination. Even if Whitfield’s charge of discrimination was timely filed and fully
exhausted, Wood Group asserts that he cannot establish prima facie cases of race and age
discrimination as to his failure to promote and hire claims. Even if plaintiff established prima
facie cases for these claims, Wood Group argues that plaintiff cannot rebut its legitimate,
non-discriminatory reasons for its decisions.
1. Plaintiff’s failure to promote claims are not actionable under Title VII or the
ADEA for failure timely to file his charge of discrimination.
Plaintiff filed a charge of discrimination with the Louisiana Commission on Human
Rights and EEOC on January 10, 2017, alleging that Wood Group discriminated against him,
a 45-year-old African-American/American Indian, based on age and race when it promoted
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two white employees in their twenties, Bradley Prejean and Brandon Godchaux, to A-
Operator positions instead of plaintiff. Record Doc. No. 1 at p. 8.
Under Title VII, a charge of discrimination filed with a state or local agency must be
filed within 300 days after the alleged unlawful employment practice occurred. 42 U.S.C. §
2000e-5(e)(1). Similarly, under the ADEA, an age discrimination charge alleging unlawful
practices occurring in a state such as Louisiana, which has legislation prohibiting age
discrimination and an established a state authority to grant or seek relief from such practices,
must be filed within 300 days after the alleged unlawful practice occurred. 29 U.S.C. §§
626(d)(1)(B), 633(b); La. R.S. 23:303, 23:312.
“[D]iscrete discriminatory acts are not actionable if time barred, even when they relate
to acts alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
113 (2002); Goring v. Bd. of Sup’rs of Louisiana State Univ. Agr. & Mech. Coll., 414 F.
App’x 630, 632–33 (5th Cir. 2011); Hartz v. Administrators of Tulane Educ. Fund, 275 F.
App’x 281, 289 (5th Cir. 2008).
In plaintiff’s case, the discrete acts of Prejean and Godchaux’s promotions to A-
Operator positions must have occurred no earlier than March 16, 2016 – 300 days before the
charge of discrimination filing date – to be actionable under Title VII and the ADEA.
Prejean’s Wood Group personnel records indicate that he was promoted to A-Operator on
January 18, 2015, well over 300 days before plaintiff filed his charge of discrimination.
Record Doc. No. 39-2 at p. 15. Therefore, plaintiff’s failure to promote claim as to the
position filled by Prejean is time-barred and is not actionable under Title VII and the ADEA.
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Godchaux worked on MP-73A with plaintiff, but the record reflects that Godchaux
was employed by Sirius, not Wood Group. Record Doc. Nos. 39-2 at p. 3; 39-3 at pp. 1, 8.
The date Godchaux was promoted to A-Operator is unclear from the record; however, the
evidence indicates that he was promoted more than 300 days before plaintiff filed his charge
of discrimination. When Godchaux was assigned to MP-73A, he was already an A-Operator,
but his date of assignment is unknown. Record Doc. No. 39-3 at p. 2. However, lead operator
Daigle’s declaration recounts an incident on MP-73A where “A-Operator (Mr. Godchaux)”
was awakened in the middle of the night to sign a job safety analysis record. Record Doc.
No. 39-3 at p. 2. The record signed by Godchaux is dated December 26, 2015. Id. at p. 8.
Thus, the undisputed record establishes that Godchaux attained the position of A-Operator,
at the very least, a few months before March 16, 2016. Therefore, Godchaux’s promotion did
not occur within 300 days of the charge of discrimination filing date. Plaintiff’s failure to
promote claim is time-barred as to Godchaux’s promotion and is not actionable under Title
VII and the ADEA.
2. Plaintiff’s failure to hire claim is not actionable under Title VII or the ADEA
for failure to exhaust administrative remedies.
In his complaint and deposition testimony, plaintiff alleges that after his termination
on May 21, 2016, he applied and was interviewed for an A-Operator position with Wood
Group on June 22, 2016, but was not hired based on his age and race. Record Doc. Nos. 1
at p. 4; 39-4 at pp. 45–49. Defendant argues that plaintiff failed to exhaust administrative
remedies as to his failure to hire claim because plaintiff’s charge of discrimination does not
reference such a claim and identifies the last date of discriminatory conduct as May 21, 2016,
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approximately one month before Wood Group declined to hire plaintiff. Record Doc. No. 1
at p. 8.
A plaintiff asserting a Title VII or ADEA claim must exhaust administrative remedies
before pursuing his claim in district court. 42 U.S.C. § 2000e, et seq.; 29 U.S.C. § 621 et seq.
“Under both Title VII and the ADEA, a lawsuit stemming from EEOC charges is limited in
scope to the EEOC investigation that could reasonably be expected to grow out of the charge
of discrimination.” Kojin v. Barton Protective Servs., 339 F. Supp. 2d 923, 926 (S.D. Tex.
2004) (citing Fine v. GAF Chemical Corp., 995 F.2d 576, 578 (5th Cir. 1993)). A claim is
not reasonably expected to grow out of a plaintiff’s charge of discrimination if the claim is
not alleged in the charge itself. Ellzey v. Catholic Charities Archdiocese of New Orleans, 833
F. Supp. 2d 595, 601 (E.D. La. 2011); Huda v. Lockheed Martin, 2008 WL 191300, at *3
(E.D. La. Jan. 22, 2008); Kebiro v. Walmart, 193 Fed. App’x 365, 367 (5th Cir. 2006);
Gomez v. Orleans Parish School Board, 2005 WL 2050285, at *5 (E.D. La. Aug. 11, 2005);
Thomas v. Tex. Dep’t of Crim. Justice, 220 F.3d 389, 395 (5th Cir. 2000).
In determining the limitations on a plaintiff’s Title VII or ADEA lawsuit, courts must
“engage in fact-intensive analysis of the statement given by the plaintiff in the administrative
charge, and look slightly beyond its four corners, to its substance rather than its label.”
Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006). To ascertain the reasonable scope of
an EEOC investigation, the Fifth Circuit interprets the contents of a plaintiff’s charge of
discrimination based on the balancing of two competing policies. On the one hand, because
“the provisions of Title VII [and the ADEA] were not designed for the sophisticated,” and
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because most charges of discrimination are initiated without assistance of legal counsel, the
scope of a charge should be construed liberally in favor of the plaintiff. Id. at 788 (quoting
Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463 (5th Cir. 1970)). On the other hand, the
primary purpose of Title VII and the ADEA is to trigger the investigatory procedures of the
EEOC, in an effort to achieve non-judicial resolution of employment discrimination claims.
Pacheco, 448 F.3d at 789. This consideration calls for stricter interpretation of the plaintiff’s
charge of discrimination, because “[a] less exacting rule would . . . circumvent the statutory
scheme, since Title VII [and the ADEA] clearly contemplate[] that no issue will be the
subject of a civil action until the EEOC has first had the opportunity to attempt to obtain
voluntary compliance.” Id. at 788–89.
Even under the most liberal and forgiving interpretation, the substance of plaintiff’s
charge of discrimination makes no reference to Wood Group’s failure to hire him for an A-
Operator position in June 2016. Moreover, the charge states that the last date of
discrimination was May 21, 2016, the date he was terminated from Wood Group, which
indicates that the reasonable scope of the agency investigation did not extend beyond this
date to the events surrounding his June 2016 application and non-hiring. The investigatory
procedures of the EEOC were never triggered as to plaintiff’s failure to hire claim, and there
was no effort to achieve non-judicial resolution of this claim before the present lawsuit was
filed. To allow plaintiff to pursue a failure to hire claim in this matter would thus circumvent
the statutory purposes of Title VII and the ADEA. Plaintiff’s failure to hire claim is not
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actionable under Title VII and the ADEA for failure to exhaust administrative remedies
before filing suit.
3. Even if plaintiff’s failure to promote claims were timely alleged and his failure to
hire claim was administratively exhausted, plaintiff cannot establish prima facie cases
for these claims or rebut defendant’s legitimate, non-discriminatory reasons for its
decisions.
a. Failure to Promote Claims
As an initial matter, although Godchaux worked on MP-73A with plaintiff, it is
undisputed that Godchaux never was employed by Wood Group. Record Doc. No. 39-3 at
pp. 1–2. Moreover, it is undisputed that Wood Group had no authority or input in making
promotion recommendations as to Godchaux. Id. at p. 1. Whitfield cannot establish a prima
facie case based on failure to promote because the competent summary judgment evidence
shows that Wood Group did not promote Godchaux, and thus did not subject plaintiff to an
adverse employment action. Accordingly, defendant is entitled to summary judgment in its
favor as to plaintiff’s failure to promote claim regarding Godchaux.
It is undisputed that Prejean, a white individual under the age of 40, is a Wood Group
employee who was promoted to A-Operator and that plaintiff is a 45-year-old African-
American/American Indian who was not promoted to this position. As to the application
requirement, plaintiff testified that he verbally asked lead operator Daigle “three or four
times” to recommend him for promotion to A-Operator by informing the Energy XXI
foremen of his interest and qualifications. Record Doc. No. 39-4 at pp. 29–37. Plaintiff
understood that Energy XXI’s foremen held the ultimate decision-making authority in
promoting platform employees. Id. at pp. 31, 39–40. Defendant argues that plaintiff’s verbal
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expression of promotion interest to a non-Energy XXI foreman and failure to fill out any
paperwork for the position is insufficient to establish application for the position with a
decision-maker’s knowledge. Record Doc. No. 39-1 at p. 14. However, plaintiff’s deposition
testimony indicates that he understood regular promotion application practice on the platform
to involve an employee informing his lead operator about his interest and the operator then
taking the request “up the chain” to the Energy XXI foremen. Id. at pp. 29–32. Moreover,
the evidence shows that the foremen took Daigle’s opinion into consideration when making
employment-related decisions as to plaintiff, suggesting that Daigle acted as the decision-
maker in some capacity. Record Doc. No. 39-2 at pp. 23–24. Thus, an issue of material fact
remains as to whether plaintiff applied for the promotion with a decision-maker’s knowledge.
As to the issue of plaintiff’s qualifications for the A-Operator position, the parties
have submitted conflicting evidence. The parties provided no written or otherwise published
job description establishing the criteria of qualifications that Wood Group and Energy XXI
consider in their assessment of A-Operator candidates. However, plaintiff’s testimony and
lead operator Daigle’s declaration describe these qualifications. Plaintiff testified that an A-
Operator must be able to “run the platform,” which includes being responsible for
compliance, maintenance, testing and training B- and C-Operators. Record Doc. No. 39-4
at p. 22. Plaintiff’s affidavit in opposition to the summary judgment motion further states that
an A-Operator should be able to “troubleshoot and problem solve.” Record Doc. No. 44-1
at p. 3. According to plaintiff’s assessment of his own job performance, he efficiently
performed routine duties on the platform such as maintenance repairs, inspections and setting
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up ladders and beverages for the crew. Id. at pp. 2–3. Plaintiff stated that he strived to impart
his job-related knowledge to other employees on the platform. Id. at p. 3. Affidavits
submitted by plaintiff’s former co-workers indicate that plaintiff performed routine duties
smoothly, completed all necessary paperwork, had troubleshooting ability, was a team player,
and mentored subordinates. Record Doc. No. 44-2. None of these affidavits were completed
by employees with a supervisory role over plaintiff’s work on MP-73A, and most, if not all,
of the affidavits were written by employees who never worked with plaintiff on MP-73A.
Daigle, plaintiff’s direct supervisor on MP-73A, stated that plaintiff was a competent
B-Operator based on his efficient completion of paperwork, maintenance of smooth
operations during night shifts and proficient handling of routine tasks. Record Doc. No. 39-3
at p. 2. Daigle stated that plaintiff excelled during night shifts “when other operations were
not ongoing and there were fewer interactions with others required.” Id. However, Daigle
attested that plaintiff exhibited a negative attitude, was not a team player, did not
comprehend the “big picture” of platform operations, lacked leadership skills, did not mentor
subordinates, lacked capacity for detailed troubleshooting, disrespected authority of his
superiors and balked at constructive criticism or helpful demonstrations from A-Operators.
Id. Daigle further noted plaintiff’s consistent “hostility toward everyone on the platform” and
“constant references to his desire to leave the platform” and seek work elsewhere. Id. Finally,
Daigle recounted a safety audit incident during which Whitfield engaged in a verbal
altercation with an Energy XXI supervisor in which Whitfield “started to curse and holler”
at the supervisor for allegedly insulting plaintiff. Record Doc. No. 39-3 at p. 3. Daigle
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attested that based on his assessment that plaintiff was unqualified for the A-Operator
position, he did not recommend plaintiff for promotion to Energy XXI foremen Larimer and
Freeman, who held the ultimate authority to promote plaintiff on MP-73A. Id. at p. 2. In an
email unrelated to the promotion at issue, Energy XXI personnel Larimer and Freeman
concurred with Daigle’s assessment of plaintiff’s job performance and additionally voiced
their own concerns about the safety audit incident. Record Doc. No. 39-2 at pp. 23–24.
The affidavits submitted by plaintiff attesting to his positive qualifications were
prepared by non-decision-makers, either plaintiff himself or others who were merely
plaintiff’s co-workers. Perhaps a factfinder might assign more weight to the declaration of
plaintiff’s direct supervisor and the assessments of the Energy XXI personnel. However, a
court may not resolve credibility or weight of the evidence issues on summary judgment.
Thus, the conflicting assessments of plaintiff’s job qualifications submitted by the parties
create a triable issue of disputed material fact as to plaintiff’s qualifications for an A-
Operator position. Because plaintiff has established that he is a member of protected classes
who was subjected to an adverse employment decision and there are genuine issues of
material fact as to plaintiff’s qualifications and application for the subject promotion, the
court will proceed from the prima facie case phase of the McDonnel Douglas framework to
the next step of the analysis.
Wood Group has articulated through lead operator Daigle’s declaration that plaintiff
was not recommended for promotion based on his lack of qualifications for the A-Operator
position. As stated above, Daigle based his decision not to recommend plaintiff for
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promotion on his assessment that plaintiff did not possess the skill set required for an A-
Operator. The court finds that Wood Group has met its burden to set forth, through
admissible evidence, a legitimate, non-discriminatory reason for its decision not to
recommend plaintiff for promotion to A-Operator.
Thus, Wood Group’s proffered reason shifts the burden to Whitfield to produce
admissible, substantial evidence that his former employer’s legitimate, nondiscriminatory
reason for non-promotion is pretextual. Plaintiff’s affidavits and deposition testimony attempt
to show that Wood Group’s reason is false or unworthy of credence because (1) Whitfield
was clearly better qualified than Prejean for the promotion at issue; and (2) workplace
comments made by MP-73A employees show evidence of race and/or age-based animus in
Wood Group’s employment decisions.
To show that he was “clearly better qualified” than Prejean and raise a triable fact
question as to whether discrimination was a factor in Wood Group’s promotion
recommendation decision, Whitfield must present evidence from which a jury could conclude
that “no reasonable person, in the exercise of impartial judgment, could have chosen the
candidate selected over the plaintiff for the job in question.” Moss v. BMC Software, Inc.,
610 F.3d 917, 923 (5th Cir. 2010) (quoting Deines v. Texas Dep’t of Protective & Regulatory
Servs., 164 F.3d 277, 280–81 (5th Cir. 1999)). “Unless the qualifications are so widely
disparate that no reasonable employer would have made the same decision, any differences
in qualifications are generally not probative evidence of discrimination.” Id. (citation
omitted). Thus, “the bar is set high for this kind of evidence.” Id.
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Plaintiff testified that he believed that his superior qualifications for the A-Operator
promotion were obvious to his MP-73A supervisors and implicit in his daily job
performance. He stated that his “skills were undisputed” and that he never discussed his
promotion eligibility with Daigle because “[y]ou don’t have to discuss what you prove day
in and day out.” Record Doc. No. 39-4 at pp. 32, 35. In his affidavit, he stated that “[m]y co-
workers and leaders saw my dedication and work ability.” Record Doc. No. 44-1 at p. 1. The
affidavits submitted by plaintiff’s former co-workers speak generally about plaintiff’s
competence and qualifications as a production operator. Record Doc. No. 44-2. Plaintiff also
asserts that the length of his tenure as a production operator made him more qualified for the
position than Prejean, who had fewer years of experience than plaintiff. Plaintiff testified that
he learned that Prejean “had two years’ experience as an operator,” according to
conversations plaintiff had with Prejean on MP-73A. Record Doc. No. 39-4 at p. 55.
Plaintiff’s resume indicates that at the time of Prejean’s promotion to A-Operator on January
18, 2015, he had roughly 4.5 years of experience as a production operator. Id. at pp. 71–73.
Plaintiff stated that he “spoke with [Prejean] before [Prejean] got the promotion” and that
plaintiff had stated to Prejean that “if [Prejean] got it, I was ready to quit, because how could
somebody with two years get a promotion over me.” Id. at p. 55.
As to plaintiff’s self-assessment of his superior job performance and the positive
assessments of his former co-workers, “[m]erely disagreeing with an employer’s negative
performance assessment is insufficient to show pretext” for race or age-based animus. Perez
v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002). The only evidence
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Whitfield presents to demonstrate that he was “clearly better qualified” than Prejean for the
promotion is a conversation with Prejean in which Whitfield learned that he had more years
of experience than Prejean. As to length of tenure, “An attempt to equate years served with
superior qualifications . . . is unpersuasive.” Moss, 610 F.3d at 923 (citation omitted).
“Obviously, work experience is one component of defining who is more qualified, but greater
experience alone will not suffice to raise a fact question as to whether one person is clearly
more qualified than another.” Id. (citation omitted). Plaintiff presents no other evidence of
Prejean’s qualifications for the A-Operator position. Thus, he has not sustained his burden
to present evidence of widely disparate qualifications from which a jury could conclude that
no reasonable person exercising impartial judgment could have chosen Prejean over plaintiff
for the promotion at issue.
“Our job as a reviewing court conducting a pretext analysis is not to engage in second-
guessing of an employer’s business decisions.” Lemaire, 480 F.3d at 391. “Management does
not have to make proper decisions, only non-discriminatory ones.” Delaval, 824 F.3d at 480
(quotation omitted). “[C]orrect or not, we will not second-guess [defendant’s] decision to
disbelieve [plaintiff] absent a showing of actual [discriminatory] purpose.” Harris, 329 F.
App’x at 557 (citing Lemaire, 480 F.3d at 391). “Even if evidence suggests that a decision
was wrong, [the court] will not substitute our judgment . . . for the employer’s business
judgment.” Scott v. Univ. of Miss., 148 F.3d 493, 509 (5th Cir. 1998), abrogated on other
grounds by Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72 (2000) (citation omitted).
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In his deposition testimony and affidavit, plaintiff offers various race-based comments
by some of his co-workers as evidence of racial animus. He testified that Godchaux recited
a joke to him and another African-American employee stating, “Do you know what a little
white baby is with wings? You know what a little black baby is with wings?” Record Doc.
No. 39-4 at p. 8. Plaintiff stated that Godchaux referred to former President Barack Obama
as “that boy.” Record Doc. No. 44-1 at p. 2. He said that Godchaux was liberal with his use
of the word “nigger” and would “partake in . . . the misuse of color” in referring to white men
by this term. Record Doc. No. 39-4 at pp. 9, 51. When asked how frequently Godchaux
would make race-based jokes, epithets and commentary, plaintiff testified, “[n]ot very often.”
Id. at p. 9. When asked why he believed Godchaux discriminated against him, plaintiff
testified that based on Godchaux’s “action,” he concluded that Godchaux “didn’t like my
color . . . didn’t like my age,” and that the race-based commentary was directed at him
personally Id. at p. 52.
Plaintiff stated that both Godchaux and Daigle showed him pictures of tennis star
Serena Williams “as an ape” or “gorilla,” former First Lady Michelle Obama “as a man” and
made “constant” and “snide” jokes involving these individuals. Id. at pp. 49–51; Record Doc.
No. 44-1 at p. 2. When asked if Daigle used race-based epithets and commentary, plaintiff
testified that “Brandon [Godchaux] was the one that was more fluid with” use of racial
epithets and that Daigle was “more of just . . . the chuckle guy” responding to Godchaux’s
racial commentary. Record Doc. No. 39-4 at pp. 51–52. Whitfield stated that he once referred
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to Daigle as “my brother,” and Daigle “sharply and quickly stated that [plaintiff] was not his
brother.” Record Doc. No. 44-1 at p. 2.
When asked whether Energy XXI’s employees were motived by racism or ageism in
reaching their employment decisions as to plaintiff, he testified “[I] [d]on’t know.” Id. at p.
53. When asked if he could identify any platform employees who were treated differently
because they were younger than plaintiff, he testified that he could not. Id. at p. 59. When
asked to identify anyone his age or older who was treated unfairly, plaintiff identified an
employee named Curtis Keys. Id.
For comments in the workplace to provide sufficient evidence of discrimination, they
must be (1) related to the protected class of persons of which the plaintiff is a member;
(2) proximate in time to the complained-of adverse employment decision; (3) made by an
individual with authority over the employment decision at issue; and (4) related to the
employment decision at issue. Rubinstein v. Admin’rs of Tulane Educ. Fund, 218 F.3d 392,
401 (5th Cir. 2000) (citing Brown v. CSC Logic, Inc., 82 F.3d 651, 655–56 (5th Cir. 1996)).
Plaintiff has failed to produce sufficient evidence that Daigle and Godchaux’s
workplace commentary was discriminatory under the above-stated standards for Title VII or
ADEA cases. As stated above, it is undisputed that Godchaux never was employed by Wood
Group, and plaintiff has presented no competent evidence to show that Godchaux had any
authority over the promotion decisions at issue. Daigle possessed authority over plaintiff’s
promotion decisions only insofar as he had the discretion to recommend employees to Energy
XXI’s foremen for promotion. However, Whitfield’s testimony fails to offer evidence that
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Daigle’s race-based jokes were related or proximate in time to the promotion decisions at
issue and presents no evidence whatsoever of age-based commentary by Daigle. “The only
evidence he offers is that the [race-based] comments were, in fact, made.” Id. Such stray
remarks are insufficient to support an inference of discrimination. Id.; Krystek v. Univ. of
S. Miss., 164 F.3d 251, 256 (5th Cir. 1999); Ray v. Tandem Computers, Inc., 63 F.3d 429,
434 (5th Cir. 1995); Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1221 (5th Cir. 1995). In
addition, plaintiff has provided no evidence that Energy XII’s foremen, the platform
employees with the ultimate decision-making authority to promote plaintiff, engaged in race
or age-based commentary of any kind.
On this record, plaintiff has failed to sustain his burden to produce evidence to show
that Wood Group’s proffered reason for not recommending him for the position filled by
Prejean was mere pretext for race or age-based discriminatory intent or motive. He has
produced no evidence of race or age-based animus that might create a material fact dispute
requiring trial as to his ultimate burden to show intentional discrimination. Accordingly, no
genuine issue of material fact is presented as to plaintiff’s race and age discrimination failure
to promote claims and defendant is entitled to summary judgment as a matter of law.
b. Failure to Hire Claim
It is undisputed that on June 22, 2016, plaintiff applied and was interviewed for an A-
Operator position with Wood Group by a recruiter for U.S. Offshore and subsequently did
not receive appointment to the position. Record Doc. No. 39-4 at pp. 45–47. As stated above,
plaintiff’s Wood Group lead operator believed he was unqualified for an A-Operator
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position. Plaintiff testified that he did not know who made the decision not to hire him, and
there is no evidence in the record to indicate if the decision-maker was aware of plaintiff’s
application. Id. at p. 47. Regardless of the decision-maker’s knowledge, plaintiff cannot
establish a prima facie case because he provides no evidence to establish that Wood Group
filled the A-Operator position with an individual outside of the protected classes. Plaintiff
testified that the position he applied for was filled, but he does not know who received the
position or that person’s race, age or qualifications. Id. Furthermore, as discussed above, he
presents no evidence sufficient to create a triable issue that the decision not to hire him for
the A-Operator position was motivated by age or race-based animus. Accordingly, defendant
is entitled to summary judgment as a matter of law as to plaintiff’s failure to hire claim.
E. Termination Claim
It is undisputed that defendant subjected plaintiff to an adverse employment decision
when he was laid off on May 13, 2016. Wood Group argues that plaintiff cannot establish
the third prong of a prima facie case under the reduction-in-force standard, i.e., that he was
qualified to assume a position that was available at the time of discharge, because it is
undisputed that no assignment was available at the time of his lay-off. Wood Group also
argues that plaintiff cannot establish the fourth prong of the reduction-in-force standard,
because he has provided no evidence that Wood Group intentionally discriminated against
him based on age or race in reaching its decision to terminate him.
As to the third prong, the undisputed summary judgment evidence shows that plaintiff
was removed from MP-73A at the request of Energy XXI’s foremen, placed on “float” and
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laid off per Wood Group’s regular business practice when no assignment became available
within 30 days of platform removal. Record Doc. Nos. 39-2 at p. 3; 39-4 at pp. 18–19, 42–43.
Plaintiff’s deposition testimony confirms that while on “float,” he “stayed in constant contact
with the project managers asking for a new position,” but ultimately was laid off after he was
“never re-picked up” within the 30-day period. Record Doc. No. 39-4 at pp. 19–20.
Plaintiff’s deposition testimony and affidavit attest to plaintiff’s self-professed qualifications
as a production operator and his disbelief and frustration as to why a person with his
qualifications was not assigned to a new job. However, plaintiff “has identified no available
position for which he was qualified when he was fired.” Creaghe, 98 F. App’x at 975
(emphasis added). Plaintiff thus fails to satisfy the third prong of the prima facie test for
reduction-in-force cases.
As to the fourth prong, there is no competent summary judgment evidence to show
that Wood Group discriminated against plaintiff based on race or age in reaching its
termination decision. The record reflects that plaintiff was removed from MP-73A at the
request of Energy XXI’s foremen, who cited plaintiff’s expression of his intent to leave the
platform for employment with Shell, inability to get along with co-workers, disrespect of
authority, lack of team spirit and overall bad attitude as the reasons for their decision. Record
Doc. No. 39-2 at pp. 23–24. Plaintiff presents no evidence indicating that his removal from
the platform was based on race or age, rather than the above-mentioned job performance
assessment. Plaintiff does not dispute that the 30-day “float” limitation was Wood Group’s
regular business practice in laying off employees. Plaintiff offers only his own subjective
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belief that he was laid off based on his race and age. Record Doc. No. 39-4 at p. 49. The Fifth
Circuit has held that a subjective belief of discrimination is “insufficient to create an
inference of the defendant[’s] discriminatory intent.” Roberson v. Alltel Info. Servs., 373
F.3d 647, 654 (5th Cir. 2004) (quoting Lawrence v. Univ. of Tex. Med. Branch at Galveston,
163 F.3d 309, 313 (5th Cir. 1999). Plaintiff presents no evidence that race or age motivated
Wood Group’s decision to terminate his employment. Plaintiff thus fails to satisfy the fourth
prong of the prima facie test.
Even if Whitfield could establish a prima facie case, Wood Group has met its burden
to provide a legitimate, non-discriminatory reason for terminating plaintiff. As the platform
client, Energy XXI had the authority to remove plaintiff from the platform. Energy XXI’s
reasons for plaintiff ’s removal were based on a negative job performance assessment relayed
to Energy XXI’s foremen by plaintiff ’s direct supervisor. Wood Group followed normal
business practice by placing plaintiff on “float” for 30 days after his removal and laying him
off after no job assignment materialized by the end of that period.
Plaintiff presents only his subjective opinion that he should have been reassigned
while on “float,” his self-assessment of his own performance and opinions of co-workers
about plaintiff’s attributes, but no competent evidence to show that its reason was pretext for
race and/or age discrimination. As stated above, mere disagreement with an employer’s
negative performance assessment and the stray remarks about which plaintiff testified are
insufficient to show pretext. Perez, 307 F.3d at 325; Rubinstein, 218 F.3d at 401; Brown, 82
F.3d at 655–56; Krystek, 164 F.3d at 256; Ray, 63 F.3d at 434; Mooney, 54 F.3d at 1221.
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On this record, plaintiff has failed to sustain his burden to produce evidence sufficient
to establish prima facie cases of race and age discrimination as to his termination claim. Even
if plaintiff had done so, he has failed to rebut defendant’s legitimate, non-discriminatory
reason for his termination, and he offers no proof sufficient to create a triable issue as to his
ultimate burden to show race or age-based animus. Accordingly, no genuine issue of material
fact is presented as to plaintiff’s race and age discrimination termination claim and defendant
is entitled to summary judgment as a matter of law.
F. Hostile Work Environment and Retaliation Claims
Plaintiff’s affidavit in his opposition to the summary judgment motion asserts claims
of retaliation and hostile work environment that were not alleged in plaintiff’s complaint or
his charge of discrimination. Record Doc. No. 44-1. “A claim which is not raised in the
complaint but, rather, is raised only in response to a motion for summary judgment is not
properly before the court.” Cutrera v. Bd. of Sup’rs of Louisiana State Univ., 429 F.3d 108,
113 (5th Cir. 2005) (emphasis added). A properly pleaded complaint must give “fair notice
of what the claim is and the grounds upon which it rests.” Ashcroft v. Iqbal, 556 U.S. 662,
698–99 (2009) (citations and alterations omitted). “Accordingly, district courts do not abuse
their discretion when they disregard claims or theories of liability not present in the
complaint and raised first in a motion opposing summary judgment.” De Franceschi v. BAC
Home Loans Servicing, L.P., 477 F. App’x 200, 204 (5th Cir. 2012). Because plaintiff asserts
retaliation and hostile work environment claims for the first time in his opposition to the
summary judgment motion, the court will not consider them.
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CONCLUSION
For all of the foregoing reasons, plaintiff's Motions to Appoint Counsel and for
Issuance of Subpoenas are DENIED. Defendant’s motion for summary judgment is
GRANTED and plaintiff’s claims are DISMISSED WITH PREJUDICE, plaintiff to bear all
costs. Judgment will be separately entered.
New Orleans, Louisiana, this Sth day of September, 2019.
JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE
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