Dunn v. Apache Industrial Services, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

GERALDINE DUNN CIVIL ACTION

VERSUS NO. 17-12777

APACHE INDUSTRIAL SERVICES, SECTION: “B”(1)

ET AL.

ORDER AND REASONS

Before the Court are: (1) defendant Apache Industrial

Services, Inc.’s (“Apache”) motion for summary judgment (Rec. Doc.

78); (2) plaintiff Geraldine Dunn’s response in opposition (Rec.

Doc. 82); (3) Apache’s reply in support of their motion for summary

judgment (Rec. Doc. 99); and (4) plaintiff’s supplemental

memorandum in opposition (Rec. Doc. 100). For the reasons discussed

below,

IT IS ORDERED that defendant Apache’s motion for summary

judgment (Rec. Doc. 78) is GRANTED IN PART as to the hostile work

environment and retaliation claims; and

IT IS FURTHER ORDERED that defendant’s motion for summary

judgment is DENIED IN PART with respect to all other remaining

claims in this litigation.

FACTS AND PROCEDURAL HISTORY

Plaintiff Geraldine Dunn is a resident of the parish of East

Baton Rouge, Louisiana. Rec. Doc. 1 at 2. In June 2016, she was

employed as a bus driver and painter for Apache Industrial

Services, Inc. (“Apache”), a foreign corporation with its

principal place of business in Texas and subcontractor for

Defendant Phillips 66 Company (“Phillips”). Id. at 3. Plaintiff

alleges that Apache, along with Phillips, discriminated against

her, retaliated against her, and wrongly terminated her. Id.

On or around August 8, 2016, Plaintiff began working a

“turnaround job” for Apache. Id. Plaintiff claims she has

approximately 15 years of experience and alleges that she was

earning $19.00 per hour while her male counterparts were earning

$23.00 per hour. Id. Plaintiff further alleges she spoke with

management, specifically Tim Robichaux, about raising her hourly

pay to $23.00 on more than one occasion. Id. She was told her

hourly pay would be increased to $23.00, yet complains she never

received an increase. Id. She asserts she was subsequently

subjected to harassment and discrimination. Id. Specifically, she

contends she was forced to perform additional duties that other

male employees were not required to perform and was yelled at by

her supervisor, Marlow, in front of other male employees.1 Id. at

4.

In her complaint, plaintiff notes that she filed an Equal

Employment Opportunity Commission (“EEOC”) Charge, alleging unfair

1 Plaintiff alleges in her Complaint that on or around September 28, 2016, a

supervisor, Marlow, brought paint to the work area for male employees only.

Plaintiff was told to get her own paint and contends that when she asked why,

See

treatment on October 13, 2016. . at 4. On October 24, 2016,

Plaintiff claims she attended a meeting with safety management to

discuss her complaints of knee pain. Id. She was given two days

off from work and when she Returned on October 27, she had been

terminated. Apache notes plaintiff was informed by Phillips 66

that it was exercising its right under the contract between

Phillips 66 and Apache, and Phillips 66 no longer wanted plaintiff

assigned to its project. Rec. Doc. 78-2 at 4. Further, defendant

contends that Apache Coatings Operations Manager, Robbie Hunter,

“instructed plaintiff to go to Apache’s hiring center, as it was

not Apache that ended plaintiff’s assignment at Phillips 66.” Id.

Plaintiff contends that she was terminated in retaliation, and as

a result of her filing the EEOC charge of discrimination. Rec.

Doc. 1 at 4.

On November 28, 2016, Plaintiff claims to have filed another

EEOC Charge of Discrimination (the “November 2016 Charge”)

alleging gender discrimination, retaliation, and unequal pay. Id.

at 5. On January 4, 2017, Plaintiff claims to have filed yet

another EEOC Charge of Discrimination (the “January 2017 Charge”)

alleging retaliatory wrongful termination. Id. at 13-14.

On August 20, 2017, Plaintiff received a “Dismissal and Notice

of Rights” for “both of her aforementioned Charges of

Discrimination2.” Rec. Doc. 1 at 5. On November 20, 2017, exactly

2 There is ambiguity in the phrase “both of her aforementioned Charges of

Discrimination.” Defendant notes in their motion for summary judgment that

three months after receiving her Notice of Right to Sue letter

from the EEOC, plaintiff filed her Complaint. Rec. Doc. 1 Plaintiff

brought claims under Title VII of the Civil Rights Act of 1964;

The Equal Pay Act of 1963; (3) the Age Discrimination in Employment

Act of 1967; (4) La. Civ. Code. Art. 2315; and (5) the Louisiana

Whistleblower Statute, La. Rev. Stat. § 23:967. Plaintiff also

seeks damages pursuant to Equal Rights Under the Law, 42 U.S.C. §

1981(a); Retaliation, 29 U.S.C. § 215 (a)(3); and Reasonable

Attorney Fees, 29 U.S.C. § 216 (b). Rec. Doc. 1 at 4-10.3 On April

03, 2018, Apache filed a motion to dismiss for failure to state a

claim in lieu of an answer. See Rec. Doc. 15. Subsequently, on

December 26, 2018, this Court dismissed plaintiff’s claims

pursuant to 42 U.S.C. § 1981, the ADEA, and her state law claims

against Apache, preserving only her gender discrimination claims

and retaliation claims under Title VII and the Equal Pay Act. Rec.

Doc. 54.

LAW AND FINDINGS

a. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, summary judgment is

appropriate when “the pleadings, depositions, answers to

No. 461-2017-00119) and the January 4, 2017 Charge (EEOC Charge No 461-2017-

00319.)” Rec. Doc. 78-2 at 2. Defendant further notes that plaintiff likely

initiated the process for filing a charge in October of 2016, as Apache received

a Notice of Charge for EEOC Charge No. 461-2017-00119 on October 21, 2016.

Therefore, plaintiff likely notified the EEOC of her intent to file a charge of

discrimination, and thereafter perfected that charge on November 28, 2016.

3 Plaintiff’s claims against defendant Team Industrial Services, Inc., were

dismissed on May 29, 2018. Rec. Doc. 54. Plaintiff’s claims against Phillips

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 judgment as

a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986) (quoting Fed. R. Civ. P. 56(c)). See also TIG Ins. Co. v.

Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). “As to

materiality, the substantive law will identify which facts are

material. Only disputes over facts that might affect the outcome

of the suit under the governing law will properly preclude the

entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). A genuine issue of material fact exists if

the evidence would allow a reasonable jury to return a verdict for

the non-moving party. Anderson, 477 U.S. at 248. The court should

view all facts and evidence in the light most favorable to the

non-moving party. United Fire & Cas. Co. v. Hixson Bros. Inc., 453

F.3d 283, 285 (5th Cir. 2006). Mere conclusory allegations are

insufficient to defeat summary judgment. Eason v. Thaler, 73 F.3d

1322, 1325 (5th Cir. 1996).

The movant must point to “portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any,’ which it believes

demonstrate the absence of a genuine issue of material fact.”

Celotex, 477 U.S. at 323. If and when the movant carries this

burden, the non-movant must then go beyond the pleadings and

present other evidence to establish a genuine issue. Matsushita

, 475 U.S. 574, 586

(1986). However, “where the non-movant bears the burden of proof

at trial, the movant may merely point to an absence of evidence,

thus shifting to the non-movant the burden of demonstrating by

competent summary judgment proof that there is an issue of material

fact warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d

616, 618 (5th Cir. 1994). “This court will not assume in the

absence of any proof that the nonmoving party could or would prove

the necessary facts, and will grant summary judgment in any case

where critical evidence is so weak or tenuous on an essential fact

that it could not support a judgment in favor of the [non-movant].”

McCarty v. Hillstone Rest. Grp., 864 F.3d 354, 357 (5th Cir. 2017).

b. Plaintiff’s Claims under the Equal Pay Act (“EPA”)

The EPA states in pertinent part:

No employer . . . shall discriminate . . .between

employees on the basis of sex by paying wages to

employees in such establishment at a rate less than

the rate at which he pays wages to employees of the

opposite sex in such establishment for equal work on

jobs the performance of which requires equal skill,

effort, and responsibility, and which are performed

under similar working conditions . . .

29 U.S.C. § 206(d)(1).

To establish a prima facie case for disparate pay under the

EPA, a plaintiff must show: “1. her employer is subject to the

Act; 2. she performed work in a position requiring equal skill,

effort, and responsibility under similar working conditions; and

3. she was paid less than the employee of the opposite sex

providing the basis of comparison.” ., 984 F.2d

151, 153 (5th Cir. 1993); Wiley v. Am. Elec. Power Serv. Corp.,

287 F. App'x 335, 340 (5th Cir. 2008).

An essential element of a prima facie case under the Equal

Pay Act requires a showing that the plaintiff “performed work in

a position requiring equal skill, effort, and responsibility under

similar working conditions” as an employee of the opposite sex.

Id. at 153. Because Congress amended the Equal Pay Act to

substitute the word “equal” for “comparable,” the statute has been

narrowly construed to be applied “only to jobs that are

substantially identical or equal.” Brennan v. City Stores, Inc.,

479 F.2d 235, 238 (5th Cir. 1973); Hodgson v. Golden Isles

Convalescent Homes, Inc., 548 F.2d 1256, 1258 (5th Cir. 1972) (“It

is not merely comparable skill and responsibility that Congress

sought to address, but a substantial identity of job functions.”);

see also Reznick v. Associated Orthopedics & Sports Med., P.A.,

104 F. App'x 387, 390 (5th Cir. 2004) (noting female plaintiff

“must show that her job requirements and performance were

substantially equal, though not necessarily identical, to those

of a male employee”) (citing 29 C.F.R. § 1620.13(e)).

In determining whether the positions require substantially

equal work, a court conducts a case-by-case analysis in the context

of the employer’s particular practices. Hodgson, 468 F.2d at 1258;

see, e.g., Parr v. Nicholls State Univ., 2011 WL 838903, at *4-5

(E.D. La. Mar. 3, 2011) (considering varying roles, experience,

and terms of employment for each position).

Apache contends that plaintiff is unable to establish a prima

facie case for violation of the EPA, because plaintiff cannot

adequately identify a comparator whom Apache paid more money. Rec.

Doc. 78-2 at 6. Plaintiff was assigned to the Phillips 66 project,

where she admitted that she engaged in painting, flagging, and bus

driving activities. Rec. Doc. 78-6 at 8-9, Deposition of Plaintiff.

In the morning, plaintiff would drive a bus, transporting workers

to and from a specific work site. Id. While at the site, plaintiff

engaged in painting. Rec. Doc. 78-6 at 9. Apache states in their

motion that it, “denies that it ever assigned plaintiff to work

as a painter. For purposes of this motion, however, defendant will

accept plaintiff’s statement that she performed painting work.”

Rec. Doc. 78-2 at 4, n.15. Plaintiff alternatively asserts that

she “was assigned as a painter who was paid $19/hr., while her

other male co-workers (who were also painters) were paid $22/hr.”

Rec. Doc. 100 at 4.

As clearly shown by parties’ different evidentiary

presentations, there are material factual disputes as to whether

plaintiff’s job requirements were substantially equal to those of

a male employee and even whether she was assigned to the same job

as male employees, i.e. painter. Further, the responsibilities,

skills, and assignment of painter, bus driver, or flagger are not

clearly delineated by either side. Thus, a case-by-case analysis

of the employer’s practices in that regard cannot be conducted

without clear and undisputed evidence. Hodgson, 468 F.2d at 1258.

If, as plaintiff attests, her pay for work involved painting and

other ancillary duties that male painters were not required to

perform4, she would arguably have a prima facie case for disparate

pay based on the higher pay given to male painters. Summary

disposition of the EPA claim is not proper currently due to

existing disputed issues of material facts.

c. Plaintiff’s Claims Under Title VII

i. Gender Discrimination

Title VII states that it is unlawful “to discriminate against

any individual with respect to his compensation ... because of

such individual's sex.” 42 U.S.C. § 2000e–2(a). When a plaintiff

seeks to prove discrimination using circumstantial evidence, the

plaintiff must prove that (1) plaintiff is a member of a protected

class, (2) the plaintiff was qualified for the position at issue,

(3) the plaintiff was the subject of an adverse employment action,

and (4) the plaintiff was treated less favorably because of

membership in that protected class than were other similarly

situated employees who were not members of the protected class,

under nearly identical circumstances. Paske v. Fitzgerald, 785

F.3d 977, 984-85 (5th Cir. 2015) (citing McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973)).

4 Plaintiff notes in her affidavit that she was the only Apache Employee to

If a plaintiff establishes a prima facie case and thus creates

a presumption of discrimination, the burden shifts to the defendant

to show a legitimate, nondiscriminatory reason for the decision.

Then finally, the burden shifts back to the plaintiff to show that

the defendant’s reasons are pretextual. However, the “ultimate

burden” of persuasion remains with the plaintiff at “all times.”

Raggs v. Miss. Power & Light Co., 278 F.3d 463, 468 (5th Cir.

2002) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 143 (2000)).

Apache contends that plaintiff’s claims of gender

discrimination pursuant to Title VII fail, similar to her claims

under the EPA, as plaintiff is unable to identify an individual

who performed the same or substantially similar function, whom

Apache paid more than plaintiff. Rec. Doc. 78-2 at 6. As stated

previously, factual discrepancies exist between the parties and

preclude summary judgment on these grounds. Although Apache

contends that plaintiff was not assigned to work as a painter, and

that her ancillary duties of driving and flagging differentiate

her from the comparator male painters she cites, plaintiff alleges

that she was in fact assigned as a painter, and that her primary

duties consisted of painting. Accordingly, summary judgment is not

proper at this juncture.

Apache also contends that plaintiff is unable to show

discriminatory intent on the part of Apache, as she was given the

opportunity to advance to a higher paid position, and in addition

had received a rating of five out of ten on a performance review

conducted by CF industries. Rec. Doc. 78-2 at 7. Apache contends

that as a result of these facts, plaintiff cannot prove

discriminatory intent on the part of Apache related to her

compensation. Id. Plaintiff contends that she had asked for payment

increases, yet she never received them. Rec. Doc. 100 at 6.

Further, plaintiff alleges that the evaluation conducted by CF

industries is “fabricated” and that no evaluation on her

performance was ever conducted. Id. at 7. Again, the current

existence of material factual disputes prevents summary judgment

on this issue.

ii. Harassment & Hostile Work Environment

Apache contends that plaintiff cannot sustain her claim for

harassment or hostile work environment pursuant to Title VII. The

United States Supreme Court has noted that “not all workplace

conduct that may be described as ‘harassment’ affects a ‘term,

condition, or privilege’ of employment within the meaning of Title

VII.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 67

(1986)(citations omitted). “Title VII was only meant to bar

conduct that is so severe and pervasive that it destroys a

protected class member's opportunity to succeed in the workplace.”

Shepherd v. Comptroller of Public Accounts of State of Texas, 168

F.3d 871, 874 (5th Cir.) (internal quotations omitted)(emphasis

added).

In order to establish a claim for hostile environment, a

plaintiff must show that the complained-of conduct was “severe or

pervasive enough to create an objectively hostile or abusive work

environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21,

(1993). A comment that merely causes offense “does not sufficiently

affect the conditions of employment to implicate Title VII,” and

“is beyond Title VII’s purview.” Id. The determination of whether

conduct is severe or pervasive enough to subject an employer to

Title VII liability is an objective determination that is made by

looking to all the circumstances, including “the frequency of the

discriminatory conduct, its severity, whether it is physically

threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee's work

performance.” Green v. Administrators of Tulane Educational Fund,

284 F.3d 642, 655–56 (5th Cir. 2002), overruled on other grounds

by, Basarge v. Cheramie Marine, L.L.C., 675 Fed. App’x 417, 419

(5th Cir. 2017). “[S]imple teasing, offhand comments, and isolated

incidents (unless extremely serious) will not amount to

discriminatory changes in the terms and conditions of employment.”

Shepherd, 168 F.3d at 874.

Apache contends that Marlow Williams’ demeanor was loud and

abrasive, however not harassing in nature. Rec. Doc. 78- 2 at 7-

8. In plaintiff’s complaint, she alleges that during an incident

involving scaffolding that:

“[Plaintiff’s] supervisor [Williams] informed the

employees to go to the work area and get on the

scaffold to paint. [Williams] brought paint over for

the male employees; however, [plaintiff] was informed

that she had to get down off of the scaffold and get

her own paint. When [plaintiff] asked why she had to

go get her own paint, [William] began yelling at her.”

Rec. Doc. 1 at 4. Further, a passage from plaintiff’s deposition

reads as follows:

Q. I’m just trying to figure out going to look at your

first charge what you mean about you were subjected to

harassment about your work and yelled at by

[Williams]. Was there any incident other than the

scaffolding incident where [Williams] yelled at you?

A. Yeah. [Williams], yeah. You’d have to know

[Williams]. But, yes, [Williams’] yell (sic) at me,

but I would tune him out. [Williams] didn’t really

know how to communicate as a supervisor. He didn’t

know how to explain himself how he – what he wanted

done and he would get upset when you didn’t understand

what he wanted.

Q. So this was his personality?

A. Yes. Because he kind of stutter (sic) a little bit

when he speaks. And he never would make himself clear.

He just gave orders and you were supposed to know what

he was talking about.

Q. When you said he would get upset, how did you know

he was upset?

A. His tone of voice.

Rec. Doc. 78-6 at 10. The above cited instances do not elevate

Williams’ actions to the level of harassment required under Title

VII. William’s comments to plaintiff do not appear to be frequent,

nor do they appear to be sufficiently pervasive or severe as to

result in plaintiff feeling more than slightly offended. Further,

from the evidence presented, it appears that Williams engaged in

this abrasive behavior as to everyone on the jobsite and did not

specifically direct his activities at plaintiff. Accordingly,

Apache is entitled to summary judgment on plaintiff’s claim of

hostile work environment under Title VII, and that claim should

be dismissed.

Apache also claims that an employer who takes effective steps

to prevent harassment and has an employee who fails to follow the

preventative procedures, is not liable for any ensuing harassment.

Rec. Doc. 78-2 at 8. In support of their contention, Apache cites

Farragher v. Boca Raton, 524 U.S. 775, 807 (1998). In Farragher,

the United States Supreme court noted that “[a]n employer may, for

example, have provided a proven, effective mechanism for reporting

and resolving complaints of sexual harassment, available to the

employee without undue risk or expense. If the plaintiff

unreasonably failed to avail herself of the employer's preventive

or remedial apparatus, she should not recover damages that could

have been avoided if she had done so. If the victim could have

avoided harm, no liability should be found against the employer

who had taken reasonable care . . .” Id. at 806-07.

Here, it appears that plaintiff did not follow Apache’s

preventative procedures. The EEO statement reads in pertinent

part: “If you feel that you have been discriminated against you

should report the incident to your supervisor immediately. If you

feel like you cannot go to your supervisor contact the EEO Officer

direct at (713) 450-9307. Id. at 78-9. Plaintiff argues that she

“effectively followed” the procedures, as she was only required

to go to the EEO Officer if she felt she could not go to her

supervisor. Plaintiff notes that she reported the discrimination

to her supervisor, Tim Robichaux, and stated: “Well, I approached

[Robichaux] and I explained to him that they hired me as a bus

driver and bus drivers make top pay. And when I got there, they

assigned me to be a painter, which is two crafts. And he said I

was correct. And I explained to him about my pay rate that I was

supposed to have been making. They were supposed to be changing

my pay rate back to $23. And he said that he would call the office

and talk with someone in the office and he would let me know. Rec.

Doc. 100 at 8; see also Rec. Doc. 100-2 at 8. Apache contends that

requesting a change in pay is not sufficient to qualify as a report

of discrimination. We agree.

Although plaintiff did note that there was a pay discrepancy,

this one-time interaction with Tim Robichaux likely does not rise

to the level of a complaint of harassment under Title VII. Rather,

it appears to be a conversation about the pay discrepancy, and not

an outright complaint that she was being treated unfairly by anyone

at Apache. However, this contention by Apache is likely moot, as

the “harassment” activities complained of by plaintiff do not rise

to the requisite severe or pervasive level to sustain a claim

under Title VII.

d. Retaliation Claims

Under both Title VII and the EPA, an employer may not

retaliate against an employee who opposes a discriminatory

practice prohibited by the statute. See 42 U.S.C. § 2000e-3(a)

(Title VII) (“It shall be an unlawful employment practice for an

employer to discriminate against any of his employees . . . because

he has opposed any practice made an unlawful employment practice

by this subchapter, or because he has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.”); 29 U.S.C. §

215(a)(3) (EPA) (“[I]t shall be unlawful for any person . . . to

discharge or in any other manner discriminate against any employee

because such employee has filed any complaint or instituted or

caused to be instituted any proceeding under or related to this

chapter.”). “To state a claim for retaliation under Title VII, a

plaintiff must show that “(1) he engaged in conduct protected by

Title VII; (2) he suffered a materially adverse action; and (3) a

causal connection exists between the protected activity and the

adverse action.” Cabral v. Brennan, 853 F.3d 763, 766–67 (5th Cir.

2017); see also Thibodeaux-Woody v. Houston Cmty. Coll., 593 Fed.

App’x 280, 285 (5th Cir. 2014) (stating the same standard for

retaliation claims pursuant to the Equal Pay Act).

Apache challenges plaintiff’s ability to make a prima facie

showing for her claim of retaliation, as to both Title VII and the

EPA, as to the third prong of the retaliation analysis. Rec. Doc.

78-2 at 9. Apache contends that plaintiff is unable to show a

causal connection between her complaints and any alleged

retaliation. Id. Specifically, Apache contends that there is no

evidence that Williams was aware of plaintiff’s complaints or

charge of discrimination, and “admits [that] Williams’

‘personality’ was to speak loudly and brusquely,” and did not

suggest that Williams was harsher with her than other individuals

on the same job site. Id. (citing Rec. Doc. 78-6 at 10-11,

Plaintiff’s Deposition). Further, Apache claims that it took no

adverse action against plaintiff, that Apache played no part in

the decision to remove plaintiff from the Phillips 66 worksite,

and that Apache was willing to place plaintiff on another

assignment; however, Apache contends that plaintiff took no steps

to follow up with Apache. Rec. Doc. 78-2 at 9.

Plaintiff contends that: (1) although Williams’ personality

was “hard-hitting” she nevertheless asserts that her treatment was

different from other male employees after she made an inquiry about

her pay; (2) the mere fact that she was treated differently by

Williams’, after her inquiry, suggests that he had knowledge of

her complaints; and (3) the close proximity of her termination and

Apache’s receipt of the EEOC notice, all support her claim for

retaliatory discharge. Rec. Doc. 100 at 9-10.

As stated above, the hostile work environment claims

submitted by plaintiff are without merit. Marlow Williams’

activities and behavior towards plaintiff do not rise to the

requisite severe and pervasive level that is required under Title

VII. Therefore, any claim that Williams’ actions towards plaintiff

were retaliatory in nature is inapposite. Additionally, there is

no countervailing evidence that plaintiff’s removal from her last

assignment was precipitated by Phillips 66, not Apache. Rec. Doc.

78-2 at 4. Notably, plaintiff does not expressly raise this issue

in her opposition memorandum.

New Orleans, Louisiana this 12th day of August 2020

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE