Pierce v. Systems Group

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DONALD PIERCE CIVIL ACTION

VERSUS NO. 19-138

SYSTEMS GROUP SECTION “B”(5)

ORDER AND REASONS

For the reasons discussed below,

IT IS ORDERED that Defendant System Group’s opposed motion

for summary judgment is GRANTED IN PART to dismiss plaintiff Donald

Pierce’s discriminatory per diem claim; DENIED IN PART to retain

plaintiff’s retaliation claim; and plaintiff’s related motion to

strike is DENIED. See generally Rec. Docs. 30, 50, 68.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This action arises from Pierce’s termination of employment

with Systems Group. Rec. Doc. 1. On October 17, 2018, Plaintiff

received a “right-to-sue” letter from the Equal Employment

Opportunity Commission.1 Rec. Doc. 1 at 1. Thereafter, he filed

suit against his former employer on January 8, 2019 under 28 U.S.C.

§ 1343, alleging racial discrimination from compensating him less

than white maintenance welders. Id. Plaintiff also bought claims

for retaliatory discharge. Id.

1 While plaintiff did not attach the right-to-sue letter to the original

complaint, defendant has not challenged plaintiff’s compliance with the

EEOC administrative procedures in its answer or the instant motion.

Systems Group is a national company that provides services

for concrete, piping, mechanical, and structural steel erection

for its clients. Rec. Doc. 30-2. NuCor Steel Louisiana, LLC

(“NuCor”) is a client of Systems Group located in Convent,

Louisiana. Id. It maintains a year-round contracted staff of about

20 employees at NuCor and hired additional employees prior to

NuCor’s annual 30-day maintenance shutdown, which began on or about

June 16, 2018. Id. at 2.

Plaintiff was hired on April 4, 2018, as a combo welder to

assist in pre-shutdown and shutdown maintenance. Rec. Doc. 30-4.

He was paid $26 per hour. Rec. Doc. 30-5. Previously, he worked

for Systems Group for two weeks in September 2017 in Arkansas where

he was paid $24 per hour; and for another two-week period in March

of 2018 in St. James Parish, Louisiana at the same hourly rate.

Rec. Docs. 30-2, 30-5.

On April 18, 2018, two weeks after being hired for the NuCor

job, plaintiff was issued a written warning for leaving the work

site early. Rec. Doc. 30-8. Plaintiff’s actions violated workplace

policies listed in the employee handbook: Willful or deliberate

neglect of duties, loafing on the job, and failure to follow

instruction or perform assigned work is considered

insubordination. Rec. Doc. 30-7 at 2 at § 19.7, 19.9, 19.10.

Less than a month later, on May 9, 2018, plaintiff was issued

a Safety Observation Form because, per defendant, plaintiff could

not be located on the job site again. Rec. Doc. 30-9.

A few days later, on May 17, 2018, plaintiff was issued

another Safety Observation Form, documenting constant cell phone

use during work hours while welding, and for lying to his

supervisor. Rec. Doc. 30-15. Such conduct was in violation of both

Systems Group and NuCor’s policy that non-supervisory employees,

like plaintiff, may never use cell phones while working. Rec. Doc.

30-13 at 2 § 34.1, 34.1.1, 34.1.6.

A few weeks thereafter, on June 5, 2018, plaintiff was cited

for again using a cell phone while working on the NuCor job site.

Rec. Doc. 50. According to plaintiff, as he was talking, Kevin

Walker (“Walker”), plaintiff’s foreman, told plaintiff to put the

phone away. Id. at 3. Plaintiff alleges explaining what he was

doing on the phone and that Walker walked off; per plaintiff, he

assumed there was no problem since his work was finished. Id.

That same evening on June 5, 2018, plaintiff was issued

another Safety Observation Form for not cleaning up at the end of

the shift and being found sitting in another area using his cell

phone during work hours. Rec. Doc. 30-16.

According to plaintiff, on June 6, 2018 Chris Pope (“Pope”)

asked him to sign the write up. Rec. Doc. 50 at 3. Plaintiff

admitted being angry and gave Pope the same explanation he gave to

Walker the day prior for using the cell phone. Id. Thereafter,

plaintiff asserts getting on a company bus to transport him to a

safety meeting. Id.

According to plaintiff, as the safety meeting was winding up,

plaintiff stated to Walker:

Hold on. I got something to say. You’re wrong. How can

you tell Chris to write me up when you know my job was

finished? I had nothing to do. You can see me on my

phone, but you can’t see these guys are messing your job

up. But I see it and I fix it and that’s how you gonna

reward me? You reward evil for good. You can’t see when

these guys messing the job. I’m constantly catching

their mistakes and fixing their mistakes, but y’all are

not appreciative of it. Every job you give me I do it

and you can’t find nothing wrong with it. Why y’all

constantly nit picking with me? You know I went to jail

and got a sick mom and my truck is in the wrecker yard.

I told you that while I was on the phone.

Rec. Doc. 50 at 4. Plaintiff alleges that after making above

remarks, a superintendent informed him that if he had a family

problem, he should have come to them beforehand. Plaintiff

retorted, “I’m a grown man. I do not need permission to use my

phone. These white guys on their phone all the time any time they

feel like it.” Id. Per plaintiff, while walking with a supervisor

to discuss his issues in the office, Pope stated over the radio

that plaintiff was fired. Id.

According to defendant, plaintiff boarded the company shuttle

on June 6, 2018 to be transported to the daily safety meeting.

Rec. Doc. 30-2 at 4. While on the bus, plaintiff complained aloud

about being written up for using his phone on the job and began

cursing Systems Group. Id.

Per defendant, when Pope asked if anyone had anything else to

add to the safety meeting, plaintiff began complaining about being

reprimanded for using his phone. Id. at 5. Defendant alleges that

plaintiff proclaimed that he is not in kindergarten and did not

need permission to use his phone. Id. Defendant alleges that

plaintiff threatened Pope and yelled expletives. Id.

Defendant filed the instant motion for summary judgment on

April 28, 2020, arguing that plaintiff cannot meet its burden of

proof on the Title VII claims and that any wage disparity was based

on factors other than race. Rec. Doc. 30. Defendant also argues

that the claim for unlawful termination is without merit because

plaintiff was terminated for his obscene tirade in the safety

meeting when he cursed and threatened his supervisor. Id. Plaintiff

filed a response in opposition withdrawing his claims related to

discriminatory hourly wages and a finder’s fee; he nevertheless

maintains his discriminatory per diem and retaliatory termination

claims. Rec. Doc. 50.

Defendant filed a reply asserting Systems Group had

legitimate reasons for terminating Plaintiff and that he was

ineligible for per diem based on reasons other than race. Rec.

Doc. 68.

II. LAW AND ANALYSIS

Summary judgment is appropriate when “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 judgment as a matter of law.” Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine

issue of material fact exists if the evidence would allow a

reasonable jury to return a verdict for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

When the movant bears the burden of proof, it must

“demonstrate the absence of a genuine issue of material fact” using

competent summary judgment evidence. Celotex, 477 U.S. at 323. But

“where the non-movant bears the burden of proof at trial, the

movant may merely point to an absence of evidence.” Lindsey v.

Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). When the

movant meets its burden, the burden shifts to the non-movant, who

must show by “competent summary judgment evidence” that there is

a genuine issue of material fact. See Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). All

reasonable inferences must be drawn in favor of the nonmovant, but

“a party cannot defeat summary judgment with conclusory

allegations, unsubstantiated assertions, or only a scintilla of

evidence.” See Sec. & Exch. Comm'n v. Arcturus Corp., 912 F.3d

786, 792 (5th Cir. 2019).

a. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e

Under Title VII, it is “an unlawful employment practice for

an employer ... 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). To establish a prima

facie case of wage discrimination under Title VII, “a plaintiff

must show that he was a member of a protected class and that he

was paid less than a non-member for work requiring substantially

the same responsibility.” Taylor v. United Parcel Serv., Inc., 554

F.3d 510, 522 (5th Cir.2008).

Plaintiff has withdrawn his claims related to discriminatory

hourly wages and finder’s fees. Accordingly, those claims are

ordered dismissed. Plaintiff’s remaining claims will be addressed

individually.

b. McDonnell Douglas Standard for Title VII Retaliation and

Discrimination Claims

To make a prima facie case of retaliatory discharge, the

employee must show that (1) he engaged in a protected activity,

(2) the employer discharged him, and (3) there is a causal link

between the protected activity and the discharge. Tatum v. S. Co.

Servs., Inc., 930 F.3d 709, 713 (5th Cir. 2019) (citing Richardson

v. Monitronics Int'l, Inc., 434 F.3d 327, 332 (5th Cir. 2005)).

An individual’s retaliation claim is evaluated under

the McDonnell Douglas burden-shifting framework. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802–805, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973). Under the modified McDonnell

Douglas framework, a plaintiff must establish each element of

the prima facie case. Burrell v. Dr. Pepper/Seven Up Bottling Grp.,

Inc., 482 F.3d 408, 411 (5th Cir. 2007). If a plaintiff establishes

this prima facie case, the employer “must articulate a legitimate,

non-retaliatory reason for its decision to terminate the

plaintiff.” Id. Subsequently, “the plaintiff must then offer

sufficient evidence to create a genuine issue of material fact

that either (1) the employer's reason is pretext or (2) that the

employer's reason, while true, is only one of the reasons for its

conduct and another ‘motivating factor’ is the plaintiff's

protected characteristic.” Id.; see also Price v. Fed. Express

Corp., 283 F.3d 715, 720 (5th Cir. 2002) (“the plaintiff must

substantiate his claim of pretext through evidence demonstrating

that discrimination lay at the heart of the employer’s decision”).

i. Plaintiff’s Retaliation Claim

Plaintiff seeks to establish a prima facie case of unlawful

retaliation. See Rec. Doc. 50. He alleges participation in a

protected activity, namely complaining about the discriminatory

treatment between racial groups with respect to cell phone usage.

Id. at 7. Shortly after engaging in that activity, he was fired .

Id. at 8. Additionally, he relies on the Evans case to assert the

close temporal proximity between the protected complaint and his

termination are sufficient to satisfy the causation factor. Id.;

see Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001)

(“close timing between an employee’s protected activity and an

adverse action against [him] may provide the causal connection

required. . .a lapse of four months may be sufficient to raise an

inference of causation.”) (emphasis added).

Defendant Systems Group argues that plaintiff has not met his

burden in proving a prima facie case of retaliatory discharge. As

basis, it states plaintiff was not engaged in protected conduct

and there is no causal link between the alleged protected complaint

and his termination. See Rec. Doc. 30-2. Defendant offers the

declarations of Gary Brantley, Kevin Walker and Chris Pope, all of

whom stated that plaintiff never mentioned during his outcry that

his race was the underpinning for Pierce’s reprimand by Pope. Id.

at 15; see also Rec. Docs. 30-10, 30-12, 30-20. They collectively

attest that Pierce instead declared that he was “not in

Kindergarten” and didn’t need permission to use his phone. Id.

Moreover, defendant argues that plaintiff fails to prove “but for”

causation between his complaint and his firing. Id. Systems Group

relies on the Long case to suggest that a showing of protected

conduct does not automatically lead to an inference of unlawful

retaliation if the employee would have been terminated regardless

of the alleged protected activity. Id. (citing Long v. Eastfield

College, 88 F.3d 300, 305 (5th Cir. 1996)).2

In Long, the Fifth Circuit reversed the lower court’s decision

to grant summary judgment on plaintiffs’ Title VII retaliation

claims. Long, 88 F.3d at 309. The plaintiffs’ summary judgment

evidence established that each filed a complaint against their

supervisors, the supervisors had knowledge of the complaints, and

both supervisors recommended that the plaintiffs be terminated

after learning about the complaints. Id. at 306. Accordingly, the

Fifth Circuit “ha[d] no trouble finding sufficient evidence, for

prima facie case purposes, to establish a causal link between [the

plaintiffs’] protected activities and [their supervisors’]

recommendations.” Id.

Notably, Pierce admits to receiving four write ups during his

employment leading up to his termination. Shortly after his hiring,

the first write up was issued on April 18, 2018 for insubordination

by leaving work early. A few weeks later, on May 9, 2018 he was

cited a second time for a similar violation of company policy when

he could not be found on the job. Eight days later, he received a

2 While movant’s factual summary of Long appears somewhat lacking, that

case may still provide insight by contrasting the summary judgment

evidence provided by the Long plaintiffs to the evidence provided here

by Pierce.

third violation notice on May 17, 2018. That citation was issued

for lying to his supervisor and unauthorized use of a cell phone

while on the job. A few weeks thereafter, on June 5, 2018 plaintiff

is again cited for unauthorized use of a cell phone while on the

job. One day after that fourth writeup plaintiff angrily responds

to supervisors on June 6, 2018, privately and publicly, that he

didn’t need permission to use his cell phone. He reportedly became

threatening and generally contended un-named white co-workers were

not reprimanded for cell phone usage. Yet he nonetheless concludes

there was no other reason for his dismissal considering the close

timing of his outbursts and termination, all occurring on the same

day. Thus, the plaintiff appears to rely on the supposition that

the temporal proximity between his protected complaint and

termination indicates retaliation per se.

In Fiest, the plaintiff was terminated two weeks after her

boss was allegedly embarrassed during a legislative hearing when

asked about the plaintiff’s pending disability claim. Fiest v.

Louisiana, Dept. of Justice, Office of the Atty. Gen., 730 F.3d

450, 454 (5th Cir. 2013) (affirming the lower court’s decision to

grant summary judgment and dismiss plaintiff’s retaliation claim).

Although only two weeks lapsed between the hearing and the

plaintiff’s termination, the Fifth Circuit held that the defendant

offered a non-retaliatory explanation for her dismissal,

specifically “the egregiousness of her errors at work.” Id. at

455. In opposing summary dismissal of the retaliation claim,

plaintiff ignores prior write-ups as irrelevant and seemingly

relies on the temporal proximity of termination that occurred on

the same date with his complaint of disparate treatment vis a vis

cell phone usage by white employees.3 Pierce’s lack of specificity

on providing supportive evidence about similarly situated white

co-workers, e.g. names, dates, etc., and his decision to not

address the impact of prior writeups are very troubling, but not

necessarily defeating.

If this Court nonetheless found, arguendo, that the plaintiff

made out a prima facie case of retaliatory discharge, the defendant

is required to show a legitimate, non-retaliatory justification

for terminating plaintiff’s employment. Shirley v. Chrysler First,

Inc., 970 F.2d 39, 42 (5th Cir. 1992). Here, defendant asserts

that plaintiff’s dismissal is a result of violating Systems Group’s

policies against violence in the workplace. Rec. Doc. 30-2 at 16-

17. In doing so, the defendant states, “Plaintiff’s conduct

justified, if not required, his termination especially considering

he already received four written warnings and had been informed

that any further violations would result in his termination.” Id.

at 17.

3 Plaintiff’s counsel stated he would not address prior write-ups/warnings in

his opposition. That is a striking error on his part. The close proximity of

prior disciplinary warnings and writeups for the same or substantially

similar conduct with the sued-upon June incident are highly relevant and

material.

In Chaney, the plaintiff brought forth a retaliation claim,

alleging that he was discharged for submitting an affidavit in

support of his former supervisor’s race discrimination claim.

Chaney v. Orleans Public Facility Management, Inc., 179 F.3d 164,

167 (5th Cir. 1999). However, the Fifth Circuit held that the

plaintiff failed to satisfy his burden because insubordination led

to his termination as permitted by the defendant’s employment

policies. Id. at 168. Similarly, in Byest, the plaintiff engaged

in violence against her fiancé inside of the defendant’s store,

which directly violated its employment policy. Byest v. Wal-Mart

Stores, Inc., No. 4:14-CV-0009-DMB-JMV, 2014 WL 3891295 at *4

(N.D.Miss. Aug. 7, 2014). The district court held that the

plaintiff failed to show a genuine issue of material fact that her

dismissal was pretextual because the defendant’s “Violence-Free

Workplace Policy” allowed for her termination. Id. at *9.

In the instant case, there is strong evidence showing

defendant does not tolerate insinuated or actual threats of

violence and such conduct may result in termination, particularly

after repeated warnings for insubordinate conduct over a

relatively brief period, including a prior warning of termination

for future violations. Defendant offers an excerpt from its

Employment Handbook, which enumerates examples of misconduct that

may result in termination, including “[f]ighting or threatening

violence in the workplace or other violations of The Systems

Group’s Workplace Violence Policy.” Rec. Doc. 30-7 at 2. It also

offers the plaintiff’s termination form, which made note that he

should not be rehired because he was classified as “dangerous.”

Id. Similar to conduct in the Chaney and Byest cases, Systems

Group’s policy permitted instant termination for repetitive

violations of company policy against insubordinate conduct. Id.

Because defendant has identified a non-retaliatory reason for

plaintiff’s termination, the burden shifts back to Pierce to

identify evidence of pretext. To establish pretext, plaintiff may

show that the employer’s “proffered explanation is false or

unworthy of credence.” Vaughn v. Woodforest Bank, 665 F.3d 632,

637 (5th Cir. 2011). To establish the “real reason” behind his

termination, Pierce must “produce evidence, viewed in the light

most favorable to [him], that would permit a jury to believe that

[the defendant’s] proffered reason for firing [him] was not its

true reason but simply pretext for a racially discriminatory

reason.” Id. “In a case in which the employer has articulated a

rational justification for terminating an employee, and the facts

supporting that justification are not seriously disputed, the task

of proving pretext becomes quite difficult.” Chaney, 179 F.3d at

168.

Although plaintiff’s counsel did not separately address the

issue of pretext in his opposition memorandum, the court will

nevertheless look to his pleadings and attached affidavits. They

collectively allege that defendant’s partiality toward white

employees led to plaintiff’s firing because white employees also

engage in prohibited cell phone use. Rec. Doc. 50 at 8. To rebut

the defendant’s proffered justification, plaintiff offers his own

signed declaration as well as a signed declaration by a former co-

worker Carday Hayes. Rec. Doc. 65; Rec. Doc. 66. Both Pierce and

Hayes attest that Pierce never used profanity during the safety

meeting. Rec. Doc. 65 at 2; Rec. Doc. 66. Additionally, they state

that Pierce never made threats against Chris Pope, claiming Pope

was not present at the June 6th meeting. Id. Plaintiff notes that

among the declarations submitted by defendant – including Pope’s

– only Gary Brantley testified to have heard Pierce’s threat.4 Rec.

Doc. 50 at 5. Lastly, Pierce and Hayes testify that after the

meeting they heard Pope direct the firing of plaintiff over a radio

transmission. Rec. Doc. 65 at 2; Rec. Doc. 66.

In its reply, Systems Group characterized plaintiff’s

affidavit as “self-serving” to overcome their “overwhelming

evidence” that his termination was based on his outburst and

4 “Pierce immediately began yelling that all supervisors were stupid and

that the ‘field,’ i.e. other staff, was stupid. I never heard him

complain about race, just the fact that he had gotten another safety

warning. Pierce cursed and stated that we could all “kiss the head of

his p****.” He also stated that he was going to put his foot up Chris

Pope’s a**.” Declaration of Gary Brantley. Rec. Doc. 30-10 at 1.

As discussed by Plaintiff, the Incident Interview Forms completed by

both Thomas Chrismon (Rec. Doc. 30-18) and Ryan Lyle (Rec. Doc. 30-19)

makes no mention of the alleged threat. Rec. Doc. 50 at 5.

pattern of workplace misconduct. Rec. Doc. 68 at 6. Defendant

argues plaintiff failed to provide evidence to support his

allegation that white employees are not similarly reprimanded for

cell phone use. Id. It further contends plaintiff fails to provide

evidence to support his contention that Pope did not at least hear

his alleged protected complaint, regardless of whether he was

present at the meeting. Id. at 7. Moreover, Systems Group notes

that plaintiff did not allege that Pope said anything more than

“He’s fired”, leaving Pierce to speculate on why Pope gave that

order. Id. Lastly, it claims plaintiff’s inference that only Gary

Brantley’s declaration mentioned the threatening comment is

misleading because the other declarations all refer to Plaintiff’s

use of profanity at the meeting. Id. at 7-8.5

Considering the above-reference contradicting evidence

submitted by the parties, a trier of fact may reasonably find in

favor of the plaintiff or defendant at this stage.

ii. Plaintiff’s Motion to Strike Evidence of his Prior Write

Ups

Pursuant to Federal Rule of Civil Procedure 12(f), the court

may, on its own, strike from a pleading any “redundant, immaterial,

impertinent or scandalous matter.” Fed. R. Civ. Proc. 12(f)(1).

Accordingly, the Federal Rule of Evidence 401 states, “evidence is

5 Systems Group also questioned the reliability of Carday’s signed

declaration. To summarize, they allege that Carday fails to declare that

he was around the Plaintiff during the events leading up to Pierce’s

dismissal. Rec. Doc. 68 at 8-9.

relevant if: (a) it has any tendency to make a fact more or less

probable than it would be without the evidence; and (b) the fact

is of consequence in determining the action.” Fed. R. of Evid.

401. The rules further empowers the court to exclude relevant

evidence if its “probative value is substantially outweighed by a

danger of one or more of the following: unfair prejudice, confusing

the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Fed. R. of Evid. 403.

Plaintiff moves in his opposition to summary judgment to

strike any evidence of his four previous write ups of workplace

misconduct. Rec. Doc. 50 at 1. Pierce alleges that evidence

pertaining to his previous reprimands are wholly unrelated to his

termination. Id.

As shown earlier, defendant alleges that plaintiff mentioned

on numerous occasions in the workplace that he has sued previous

employers before. Rec. Doc. 30-2. As such, Defendant has mentioned

through its pleadings that its decision to terminate Plaintiff was

based in part on Pierce’s previous workplace infractions. Id.

Plaintiff partially addressed one of the reprimands in his

opposition memorandum. Prior workplace infractions relative to

insubordination, phone usage, and threatening behavior are

relevant to demonstrate a pattern of insubordination.

A rational fact-finder could find the four write-ups, as

earlier described herein, constitute non-discriminatory reasons

for plaintiff’s termination. While contesting admissibility,

plaintiff does not dispute the receipt or substance contained in

each write-up. That evidence is integral to defendant’s showing

of a non-discriminatory justification for terminating plaintiff.

iii. Plaintiff’s Discrimination Claim Regarding Per Diem

Though it was not originally set forth in his complaint,

plaintiff appears to also raise a disparate treatment claim based

on discriminatory per diem practices. Specifically, he claims he

was promised a per diem by the defendant but was ultimately denied

because of his race. Rec. Doc. 50 at 2. Defendant argues that the

decision was not racially motivated because the per diem was only

offered to employees who relocated. Rec Doc. 30-2 at 12. Defendant

indicates that Pierce was ineligible for the per diem because he

lived in Westwego, which is located about an hour away from the

job site in Convent, Louisiana. Id. at 12-13.

To establish a prima facie case of discrimination under Title

VII, a plaintiff must show that “(1) he is a member of a protected

class, (2) he was qualified for his position, (3) he suffered an

adverse employment action, and (4) others similarly situated were

more favorably treated.” Willis v. Coca Cola Enterprises, Inc.,

445 F.3d 413, 420 (5th Cir. 2006) (citing Rutherford v. Harris

Cty., Tex., 197 F.3d 173, 184 (5th Cir. 1999)). Like retaliation

claims, Title VII discrimination claims are also evaluated under

the McDonnell Douglas framework. McDonnell Douglas Corp., 411 U.S.

at 802-805.

The Fifth Circuit has not spoken on potentially

discriminatory employment practices involving per diem. However,

in Alford, the Sixth Circuit affirmed summary judgment favoring

the defendant because the plaintiff had failed to establish his

prima facie case of disparate treatment based on reverse race

discrimination. Alford v. General Motors Corp., 926 F.2d 528, 532

(6th Cir. 1991). Specifically, the plaintiff identified an African

American per diem security guard who only faced a short suspension

for leaving his post slightly early, but the record indicated that

the plaintiff’s offense of leaving his post mid-shift was far more

serious. Id. Likewise, in Porras, the Ninth Circuit upheld the

lower court’s granting of summary judgment to the defendant because

the plaintiff’s belief that a similarly situated white employee

received a per diem to the exclusion of Hispanic employees was

based on hearsay evidence. Porras v. Kilborn Intern., Inc., No.

94-16712, 1996 WL 32153 at *1, 76 F.3d 388 (9th Cir. Jan. 26,

1996); see Gonzales v. Smith Intern., Inc., 899 F.Supp.2d 622, 641

(S.D. Tex. 2010) (dismissing plaintiff’s disparate treatment claim

because the plaintiff failed to present evidence that defendant’s

legitimate, non-discriminatory reason for not providing housing

and a per diem was a pretext for discrimination).

Pierce offers the declaration of a former co-worker Carday

Hayes alongside his own declaration, indicating that per diems

were promised but were not offered to a number of African American

employees. Rec. Doc. 50 at 2. Plaintiff appears to suggest –

without offering any supporting evidence - that Systems Group

extended per diems to its white workers only because there were no

similar complaints among white maintenance workers. Id. Plaintiff

states that he was informed by African American workers on the day

he was terminated that the defendant would immediately start paying

its African American employees a per diem. Id.

Plaintiff has not presented comparator evidence, indicating

that similarly situated employees were treated more favorably.

Like the plaintiff in Porras, Pierce merely speculates that his

white counterparts were given per diems based on what he had heard

from other African American workers. Rec. Doc. 50 at 2. Plaintiff

made no further attempt to present evidence of a similarly situated

white employee who received a per diem. Thus, plaintiff has failed

to meet his burden to present tangible support for this claim.

Nevertheless, even if Pierce was able to meet his burden, the

defendant has established a legitimate, non-discriminatory reason

for denying a per diem to Pierce. Per Systems Group’s per diem

policy, only employees who have relocated for the job are eligible

for this benefit. Rec. Doc. 30-2 at 12. The non-discriminatory

nature of the policy can be evidenced by the plaintiff’s per diem

receipt when he worked in Arkansas after relocating from Louisiana.

Id. at 13; Rec. Doc. 30-26. Undisputed material evidence is

presented from a chart that displays the employees who have

received a per diem, on what dates, and their respective race.

Rec. Doc. 68 at 3; Rec. Doc. 30-24. The chart shows that four

African Americans out of the eight employees shown received a per

diem between April 2018 and April 2019. Id. Further evidence shows

that the five welders who received a per diem before plaintiff

would have been eligible were not similarly situated because their

positions involved different tasks and responsibilities. Rec. Doc.

68 at 3. Further, on the date that Phase I of the shut-down went

into effect, plaintiff admits that eight maintenance welders –

composed of seven African Americans and one Caucasian - became

eligible for a per diem. Id. at 4.

Therefore, undisputed material evidence shows the per diem

practices of the defendant were not racially motivated. As such,

plaintiff fails to show that defendant’s reason was pretextual,

foreclosing relief on the per diem claim.

New Orleans, Louisiana this 8th day of March 2021

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE