# Pierce v. Systems Group

> District Court, E.D. Louisiana · March 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10186411

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** March 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10186411

## How later opinions describe it (automated extraction)

- affirming the lower court’s decision to grant summary judgment and dismiss plaintiff’s retaliation claim

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10186411. Public record. Not legal advice.