Desport v. Shamrock Energy Solutions, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JOSH DESPORT CIVIL ACTION

VERSUS NO. 19-12446

SHAMROCK ENERGY SOLUTIONS, SECTION: “G”

LLC

ORDER AND REASONS

Plaintiff Josh Desport (“Plaintiff”) brings this suit against his former employer, Shamrock

Energy Solutions, LLC (“Shamrock”), alleging discrimination under Louisiana Revised Statute §

23:332 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.1

Before the Court is Plaintiff’s “Motion for Summary Judgment.”2 Shamrock has not filed an

opposition to the instant motion and therefore the motion is deemed unopposed. However, a motion

for summary judgment may not be granted solely because it is unopposed.3 Nevertheless, the

moving party need only make a prima facie showing of its entitlement to judgment.4 Plaintiff can

make such a showing on his hostile work environment claim, but not on his constructive discharge

claim. Therefore, considering the motion, the memorandum in support, the record, and the

applicable law, the Court grants the motion in part, denies the motion in part, and defers ruling in

1 Rec. Doc. 1-1; Rec. Doc. 1-3.

2 Rec. Doc. 24.

3 See Eversley v. MBank Dall., 843 F.2d 172, 174 (5th Cir. 1988); John v. Louisiana, 757 F.2d 698, 700 (5th

Cir. 1985).

4Eversley, 843 F.2d at 174; Johnson v. LaShip, LLC, No. 16-570, 2018 WL 2735486, at *2 (E.D. La. June 8,

2018) (Milazzo, J.).

part pending additional briefing.

I. Background5

On April 3, 2018, Plaintiff filed a complaint in the Thirty-Second Judicial District Court

for the Parish of Terrebonne, State of Louisiana.6 On May 1, 2019, the Equal Employment

Opportunity Commission (the “EEOC”) issued Plaintiff a Notice of Suit Rights.7 On August 6,

2019, Plaintiff filed an amended complaint.8 On September 4, 2019, Shamrock removed the case

to this Court, asserting jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.9

Plaintiff was employed by Shamrock as a Lead Production Operator on oil platforms

beginning on January 5, 2015 through April 28, 2017.10 Plaintiff, a citizen of the United Houma

Nation, a Native American tribe,11 claims that during his employment he was discriminated against

by employees of Shamrock based on his race.12 Plaintiff details several encounters with Shamrock

employees. For example, fellow employee Troy Comeaux (“Comeaux”) asked Plaintiff why he

was “sitting on the floor like some kind of Indian” and did not “live on a reservation and live off

5 Under Federal Rule of Civil Procedure 56(e)(2), “[i]f a party fails to properly support an assertion of fact

or fails to properly address another party’s assertion of fact . . . the court may consider the fact undisputed for purposes

of the motion.” Likewise, under Local Rule 56.2, the failure to oppose a motion requires a court to deem admitted the

moving party’s statement of uncontested material facts. Given that the instant motion is unopposed, the Court will

deem admitted Plaintiff’s statement of uncontested material facts.

6 Rec. Doc. 1-1.

7 Rec. Doc. 1-2.

8 Rec. Doc. 1-3.

9 Rec. Doc. 1.

10 Rec. Doc. 24-3 at 1; Rec. Doc. 1-3 at 2.

11 Rec. Doc. 24-3 at 1; Rec. Doc. 24-15.

12 See generally Rec. Doc. 1-3; Rec. Doc. 24-2.

of free money.”13 Comeaux “would laugh and say” that Plaintiff was on TV anytime former

Louisiana Governor Bobby Jindal was shown, and referred to Plaintiff as the “platform Mexican”

on a daily basis.14 Plaintiff reported Comeaux’s comments to his supervisor Frank Cornay

(“Cornay”), but Cornay told him “don’t worry about it.”15

Plaintiff claims that Comeaux became physical with Plaintiff when Plaintiff requested to

be moved out of his shared room with Comeaux, and that Comeaux “entrapped Plaintiff and hit

Plaintiff repeatedly with a door” while asking Plaintiff if he wanted to fight.16 Plaintiff testified at

his deposition that Comeaux “twisted his nipples,” an act that Comeaux only did to Plaintiff and

no other employees on the platform.17 Plaintiff reported the physical incident involving the door

to supervisor Shawn LaBauve who then reported it to a manager, Craig Robichaux

(“Robichaux”).18

Plaintiff asserts that on June 30, 2016, employee Joe Primeaux (“Primeaux”) made a vulgar

comment about Plaintiff’s wife.19 The next day, Plaintiff “submitted a written diatribe” via email

to Robichaux.20 In the email, Plaintiff informed Robichaux that “[p]eople have cursed [Plaintiff],

pushed [Plaintiff], made racist remarks about [Plaintiff’s] looks and [Plaintiff’s] heritage.”21

13 Rec. Doc. 24-3 at 1–3.

14 Id. at 1–2.

15 Id. at 2.

16 Rec. Doc. 24-2 at 12.

17 Rec. Doc. 24-4 at 22.

18 Rec. Doc. 24-2 at 12.

19 Id.

20 Rec. Doc. 24-3 at 2; Rec. Doc. 24-12.

21 Rec. Doc. 24-12.

Plaintiff stated that his race and appearance had been “belittled,” but that upon reporting the

incidents to Cornay and LaBauve he was told not to worry about the comments (“2016

Complaint”).22

Thereafter, in early 2017, employee Brandon LeBeauf (“LeBeauf”) “came into Plaintiff’s

room after-hours with a small seagull feather, at which time LeBeauf tried to put it in Plaintiff’s

hair” while stating “you’re supposed to be Indian, why don’t you have feathers in your hair?”23

When Plaintiff told LeBeauf he couldn’t wear feathers unless given to him by “[h]is Chief for

accomplishments of bravery,” LeBeauf attached the feather to a bulletin board in Plaintiff’s

bunkroom “to remind him of his heritage.”24 Plaintiff also reported this incident to supervisor Mike

Yearic (“Yearic”) (“2017 Complaint”).25 Plaintiff further recounts a contract roustabout walking

by Plaintiff and stating “Look, he’s sitting Indian style,” as well as telling a “joke” about an “Indian

sitting on the side of the road selling bracelets” and “a Native American man telling time by using

shadows.”26

Finally, employee Lance Martin (“Martin”) “tacked a piece of propaganda on Plaintiff’s

bedroom wall” depicting the arrests of the Oceti Sakowin Camp by armed riot police.27 Plaintiff

again reported this incident to Yearic and Chris Davis (“Davis”).28 That same day, Plaintiff

22 Id.

23 Rec. Doc. 24-2 at 13; Rec. Doc. 24-3 at 2.

24 Rec. Doc. 1-3 at 3 (internal quotation marks omitted).

25 Rec. Doc. 24-3 at 2–3.

26 Id. at 3.

27 Rec. Doc. 1-3 at 3; Rec. Doc. 24-3 at 3.

28 Rec. Doc. 24-3 at 3.

“attempted to formally submit his two weeks’ notice” to Shamrock via email.29

After submitting his notice, Plaintiff was contacted by Shamrock’s Human Resources

employee Becky McManus (“McManus”) who told Plaintiff that Shamrock was going to conduct

an investigation into the incidents reported by Plaintiff.30 The investigation was completed on

March 24, 2017, and “found that Plaintiff had suffered from harassment and discrimination with

regard to his Native Heritage.”31 The report stated that (i) the offenders involved in the 2016

Complaint “had been moved to different platforms and/or terminated” for reasons unrelated to

Plaintiff’s alleged harassment; (ii) the offenders involved in the 2017 Complaint had been

terminated for reasons unrelated to Plaintiff’s claims, and (iii) “with these individuals moved from

the areas where Mr. Desport works, the harassment will be stopped.”32 Plaintiff testified at his

deposition that the reference in the report to the July 2016 Complaint was about Primeaux,

following his vulgar comment about Plaintiff’s wife, and the reference to the 2017 Complaint was

about LeBeauf, who tacked a feather to Plaintiff’s bulletin board.33

In addition, Plaintiff was “assured that Shamrock was going to conduct field-wide

discrimination training” and “wanted to speak with him in person to better understand his position

and concerns.”34 The investigation report indicates the same, as it states that “[i]n follow up,”

Shamrock “will be conducting training company-wide on diversity and discrimination in the

29 Id.

30 Rec. Doc. 24-3 at 4.

31 Id.

32 Rec. Doc. 24-7.

33 Rec. Doc. 24-4 at 41–42.

34 Rec. Doc. 24-3 at 5.

workplace” and that it became apparent to the company “after both of [Shamrock’s] investigations

that this awareness needs to be implemented in the workplace.”35 After the investigation, Plaintiff

“informed the company that he would rescind his resignation so long as the company remediated

the ongoing harassment.”36

Thereafter, Martin returned to the same platform as Plaintiff, prompting Plaintiff to contact

McManus to ask why Martin was permitted back on the platform.37 Plaintiff was told that

Shamrock “had not actually made any arrangements to move Martin.”38 Plaintiff was then

informed that LeBeauf had also been re-hired and would be returning to the platform.39 “Upon the

offenders’ return in direct contravention to the assurances made to Plaintiff,” Plaintiff again put in

his two weeks’ notice on April 28, 2017.40 After his departure, Plaintiff experienced an anxiety

attack and started taking antianxiety medication.41 Plaintiff testified at his deposition that he is now

“blackballed from the Gulf” as a result of his harassment complaints.42

In this suit, Plaintiff brings two causes of action. First, Plaintiff alleges employment

discrimination pursuant to Louisiana Revised Statute § 23:332 (“Section 23:332”).43 Second,

35 Rec. Doc. 24-7.

36 Rec. Doc. 24-2 at 15.

37 Rec. Doc. 24-3 at 5.

38 Rec. Doc. 24-2 at 16; Rec. Doc. 24-3 at 5.

39 Rec. Doc. 24-3 at 5.

40 Id. at 6.

41 Rec. Doc. 24-2 at 18; Rec. Doc. 24-3 at 6.

42 Rec. Doc. 24-4 at 58.

43 Rec. Doc. 1-3 at 6.

Plaintiff alleges employment discrimination pursuant to 42 U.S.C. § 2000e, et seq. (“Title VII”).44

Plaintiff seeks damages.45

On April 24, 2019, Plaintiff was deposed.46 On October 19, 2020, counsel for Shamrock

filed a motion to withdraw.47 Pursuant to Local Rule 83.2.11, withdrawing counsel confirmed that

notification of the deadlines and pending court appearances in this case was provided to Shamrock

via certified mail to Jason Lyons, General Counsel of Shamrock, at 4800 Hwy. 311, Houma, LA

70360.48 Withdrawing counsel further certified service of the motion to withdraw on Jason Lyons

at the same address.49

On October 22, 2020, the Court granted the motion to withdraw and in doing so, noted that

“Shamrock is a limited liability company and therefore cannot proceed pro se. New counsel has

not been enrolled to represent Shamrock. Shamrock will not be able to further ‘appear in federal

court unless represented by a licensed attorney.’”50 After Shamrock failed to enroll counsel, the

Court issued an Order on April 20, 2021, in which the Court ordered Shamrock to enroll counsel

within thirty days and stated that, upon failure to do so, the Court would entertain a motion by

Plaintiff to resolve the matter.51 To date, Shamrock has failed to enroll new counsel.

On May 5, 2021, Plaintiff filed the instant motion for summary judgment, set for

44 Id. at 7.

45 Id. at 9.

46 Rec. Doc. 24-4.

47 Rec. Doc. 13.

48 Rec. Doc. 13-1.

49 Rec. Doc. 13.

50 Rec. Doc. 14 (quoting Memon v. Allied Domecq QSR, 385 F.3d 871, 893 (5th Cir. 2004)).

51 Rec. Doc. 23.

submission on June 2, 2021.52 Pursuant to Local Rule 7.5, any opposition to the motion was due

eight days before the noticed submission date. Shamrock has not filed an opposition to the instant

motion and therefore the motion is deemed unopposed.

Plaintiff certified service of the motion for summary judgment on Shamrock not through

Jason Lyons, as Shamrock’s withdrawing counsel had done in the motion to withdraw, but through

Jeffrey Trahan at 4800 Hwy. 311, Houma, LA 70360.53 On June 14, 2021, given that Plaintiff

served the instant motion for summary judgment on Jeffrey Trahan and not on Shamrock’s General

Counsel Jason Lyons, the Court ordered Plaintiff to confirm that service of the motion on

Shamrock was proper.54 On July 13, 2021, Plaintiff filed a “Confirmation of Service” into the

record.55

II. Legal Standards

A. Legal Standard on an Unopposed Motion for Summary Judgment

A motion for summary judgment may not be granted solely because it is unopposed.56

Under Federal Rule of Civil Procedure 56(e)(2), “[i]f a party fails to properly support an assertion

of fact or fails to properly address another party’s assertion of fact . . . the court may consider the

fact undisputed for purposes of the motion.”57 Likewise, under Local Rule 56.2, the failure to

oppose a motion requires a court in this district to deem admitted the moving party’s statement of

52 Rec. Doc. 24 at 2.

53 Rec. Doc. 24.

54 Rec. Doc. 28.

55 Rec. Doc. 30.

56 Eversley, 843 F.2d at 174; John, 757 F.2d at 700.

57 Fed. R. Civ. P. 56(e)(2).

uncontested material facts.58 “Rule 56 does not impose upon the district court a duty to sift through

the record in search of evidence to support a party’s opposition to summary judgment.”59 Taking

such facts as admitted, the moving party need only make a prima facie showing of its entitlement

to judgment in order to succeed on an unopposed motion for summary judgment.60

B. Legal Standard on a Title VII Claim

Title VII makes it “an unlawful employment practice for an employer . . . to discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of

employment because of such individual’s race, color . . . [or] sex.”61 A plaintiff may establish a

violation of Title VII by proving that discrimination has created a hostile or abusive working

environment,62 or by proving disparate treatment on the basis of race or sex.63

The burden-shifting framework established in McDonnell Douglas Corp. v. Green governs

claims alleging discrimination under Title VII.64 To survive summary judgment in a case under

the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of

discrimination or retaliation.65 If the plaintiff can establish a prima facie case, the burden will shift

to the defendant to articulate a legitimate, nondiscriminatory purpose for an adverse employment

58 EDLA Local Rule 56.2

59 Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006)

60 Eversley, 843 F.2d at 174; Johnson v. LaShip, LLC, No. 16-570, 2018 WL 2735486, at *2 (E.D. La. June

8, 2018) (Milazzo, J.).

61 42 U.S.C. § 2000e–2(a)(1).

62 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986).

63 Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001).

64 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

65 Id. at 802; see also Mendoza v. Helicopter, 548 F. App’x 127, 129 (5th Cir. 2013) (applying the McDonnell

Douglas framework to discrimination and retaliation claims).

action.66 The defendant must point to admissible evidence in the record,67 but the burden is one of

production, not persuasion.68 The defendant is not required to show that the employment decision

was proper, only that it was not discriminatory.69 “[E]ven an incorrect belief that an employee’s

performance is inadequate constitutes a legitimate, non-discriminatory reason” for an adverse

employment action.70 If the defendant satisfies its burden of production, the burden shifts back to

the plaintiff to show that any non-discriminatory purposes offered by the defendant are merely a

pretext for discrimination.71 A plaintiff can do this by presenting evidence of disparate treatment

or demonstrating that the proffered explanation is false.72

III. Analysis

Plaintiff claims that Shamrock violated both Title VII and Louisiana Revised Statute

§ 23:332 by (i) subjecting him to a hostile work environment and (ii) constructively discharging

him from his employment. The Fifth Circuit has held that the same analysis applies for claims

under Title VII and the Louisiana Employment Discrimination Law.73 Therefore, the Court will

address the state and federal claims simultaneously.

Shamrock failed to file a brief in opposition to the instant motion. “When a motion for

66 Id.

67 Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 255 (1981).

68 Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).

69 LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 390 (5th Cir. 2007). See also Perez v. Region 20

Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002); Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir.

1995) (“The question is not whether an employer made an erroneous decision; it is whether the decision was made

with discriminatory motive.”).

70 Little v. Republic Refin. Co., 924 F.2d 93, 97 (5th Cir. 1991).

71 Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).

72 Id.

73 Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 891 n.2 (5th Cir. 2012).

summary judgment is unopposed the court may not grant the motion by default, but is entitled to

accept as undisputed the facts it presents.”74 Taking Plaintiff’s statement of uncontested facts as

admitted, the Court must determine whether Plaintiff has shown a prima facie case for its

entitlement to judgment. In undertaking such analysis, Federal Rule of Civil Procedure 56 “does

not impose upon the district court a duty to sift through the record in search of evidence to support

a party’s opposition to summary judgment.”75 “Instead, the proper inquiry to an unopposed motion

for summary judgment is to determine whether the facts advanced in the motion and supported by

appropriate evidence make out a prima facie case that the movant is entitled to judgment.”76

A. Hostile Work Environment

Title VII makes it “an unlawful employment practice for an employer . . . to discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of

employment because of such individual’s race, color . . . [or] sex.” A plaintiff may establish a

violation of Title VII by proving that discrimination has created a hostile or abusive working

environment.77 “Title VII is violated ‘when the workplace is permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of

the victim’s employment and create an abusive working environment.’”78

To show the existence of a hostile environment, Plaintiff must establish:

(1) the employee is a member of a protected group; (2) the employee was subjected

74 Johnson, 2018 WL 2735486, at *2; see also Jegart v. Roman Cath. Church of Diocese of Houma

Thibodaux, 384 F. App’x 398, 400 (5th Cir. 2010).

75 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

76 Johnson, 2018 WL 2735486, at *2; see also Eversley, 843 F.2d at 174.

77 Meritor Sav. Bank, 477 U.S. at 66.

78 Vallevillo v. U.S. Dep’t of Hous. & Urban Dev., 155 F. App’x 764, 766 (5th Cir. 2005) (citing Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

to unwelcome harassment; (3) the harassment was based on [his] membership in a

protected class; (4) the harassment affected a term, condition, or privilege of [his]

employment; and (5) [his] employer knew or should have known of the harassment

and failed to take prompt remedial action.79

Given the undisputed facts, Plaintiff has made a prima facie showing as to each prong.

Under the first prong, Plaintiff, as a Native American, is a member of a protected class.80 Under

the second and third prongs, Plaintiff has provided numerous examples of unwelcome harassment

based on his Native American heritage starting in January 2015.81 For example, Plaintiff’s

coworker Comeaux asked Plaintiff why he was “sitting on the floor like some kind of Indian” and

did not “live on a reservation and live off of free money.”82 Comeaux “would laugh and say” that

Plaintiff was on TV anytime former Louisiana Governor Bobby Jindal was shown, and referred to

Plaintiff as the “platform Mexican” on a daily basis.83 Plaintiff claims that Comeaux became

physical with Plaintiff when Plaintiff requested to be moved out of his shared room with Comeaux,

and that Comeaux “entrapped Plaintiff and hit Plaintiff repeatedly with a door” while asking

Plaintiff if he wanted to fight.84

Further, LeBeauf “came into Plaintiff’s room after-hours with a small seagull feather, at

which time LeBeauf tried to put it in Plaintiff’s hair” while stating “you’re supposed to be Indian,

why don’t you have feathers in your hair?”85 When Plaintiff told LeBeauf he couldn’t wear feathers

79 Gibson v. Verizon Servs. Org., Inc., 498 F. App’x 391, 394 (5th Cir. 2012).

80 Rec. Doc. 24-2 at 22; Rec. Doc. 24-15. See also Gobert v. Babbitt, No. 98-2629, 2000 WL 1219283, at *5

(E.D. La. Aug. 28, 2000) (Barbier, J.); Raines v. Indianapolis Public Schools, 52 Fed. App’x 828, 831 (7th Cir. 2002)

81 See generally Rec. Doc. 24-2; Rec. Doc 24-3; Rec. Doc. 24-4.

82 Rec. Doc. 24-3 at 1–3.

83 Id. at 1–2.

84 Rec. Doc. 24-2 at 12.

85 Id. at 13; Rec. Doc. 24-3 at 2.

unless given to him by “[h]is Chief for accomplishments of bravery,” LeBeauf attached the feather

to a bulletin board in Plaintiff’s bunkroom “to remind him of his heritage.”86 Finally, Plaintiff’s

coworker Martin “tacked a piece of propaganda on Plaintiff’s bedroom wall” depicting the arrests

of the Oceti Sakowin Camp by armed riot police.87 These facts are sufficient to meet the second

and third prongs of a hostile work environment claim.

Under the fourth prong, again taking all of Plaintiff’s facts as admitted, Plaintiff also makes

a prima facie showing that the harassment affected a term, condition, or privilege of his

employment. “To affect a term, condition, or privilege of employment, the harassment must be

sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

abusive working environment.”88 The Supreme Court has instructed that discrimination under Title

VII “is not limited to ‘economic’ or ‘tangible’ discrimination.”89 Rather, Title VII is violated

“[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is

‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

abusive working environment.’”90

The Supreme Court has described the contours between actionable conduct and conduct

that is merely offensive, but not actionable.91 These differing standards are in place to ensure that

86 Rec. Doc. 1-3 at 3 (internal quotation omitted); Rec. Doc. 24-3 at 2.

87 Rec. Doc. 1-3 at 3; Rec. Doc. 24-3 at 3.

88 West v. City of Hous., 960 F.3d 736, 741–42 (5th Cir. 2020) (quoting Aryain v. Wal-Mart Stores Tex. LP,

534 F.3d 473, 479 (5th Cir. 2008)).

89 Meritor Sav. Bank, 477 U.S. at 64.

90 Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank, 477 U.S. at 65, 67).

91 Id.

Title VII does not become a “general civility code”92 whereby “the ordinary tribulations of the

workplace” are actionable.93 To be actionable under Title VII, the conduct at issue must be both

objectively and subjectively offensive.94 Therefore, the “victim [must] perceive the environment

[as] abusive” and the conduct complained of must “create an objectively hostile or abusive work

environment [such] that a reasonable person would find hostile or abusive.”95 The Fifth Circuit has

instructed that to determine whether a work environment is hostile or abusive, “courts consider the

totality of the circumstances including: (1) the frequency of the discriminatory conduct; (2) its

severity; (3) whether it is physically threatening or humiliating, or merely an offensive utterance;

and (4) whether it interferes with an employee’s work performance.”96 No single factor is

determinative.97

Beginning in January 2015, and consistently throughout Plaintiff’s employment, Plaintiff

was subjected to a myriad of repeated, pervasive, racially-demeaning jokes, gestures, and

comments on the basis of his Native American heritage.98 Plaintiff testified that the discrimination,

including comments by Comeaux that Plaintiff was “the platform Mexican,” occurred “repeatedly,

92 Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quoting Harris, 510 U.S. at 18).

93 Id. (quoting B. Lindemann & D. Kadue, Sexual Harassment in Employment Law 175 (1992)).

94 Harris, 510 U.S. at 21–22 (“Conduct that is not severe or pervasive enough to create an objectively hostile

or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond

Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct

has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.”).

95 Id.

96 E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393, 400 (5th Cir. 2007).

97 Id.

98 Plaintiff alleges that Primeaux made a vulgar comment about his wife. Rec. Doc. 24-2. Plaintiff has failed

to provide evidence, however, that such comment was made based on his race.

often, and just nearly daily.”99 Plaintiff testified about incidents with LaBeauf and Martin which

happened “within weeks” of each other.100 Plaintiff testified that Comeaux’s comments were made

“for all to hear and to chuckle at.”101 Plaintiff stated that Comeaux became physical with Plaintiff

when he “entrapped Plaintiff and hit Plaintiff repeatedly with a door” while asking Plaintiff if he

wanted to fight.102 Plaintiff further testified that Comeaux “twisted his nipples,” an act that

Comeaux only did to Plaintiff and no other employees on the platform.103 Shamrock’s own internal

investigation found that “Bullying or Harassment was verified.”104 Plaintiff claims that this

harassment led him to resign and led him to begin taking antianxiety medication, and Plaintiff

testified that he is now “blackballed from the Gulf” as a result of his harassment complaints.105

Considering all of these facts, the Court finds that the conduct was sufficiently “severe or

pervasive” as to affect a “term, condition, or privilege” of employment.

Under the fifth prong, accepting Plaintiff’s statement of uncontested facts as true, Plaintiff

has also made a showing that Defendants failed to take “prompt remedial action.” Plaintiff states

that on April 17, 2017, Lance Martin—one of the employees who harassed Plaintiff—returned to

working at Plaintiff’s platform and was seated three feet from Plaintiff.106 Plaintiff was further told

that Brandon LeBeauf—the employee who attempted to put a dirty bird feather in Plaintiff’s hair—

99 Rec. Doc. 24-4 at 21.

100 Id. at 25.

101 Id. at 22.

102 Rec. Doc. 24-2 at 12.

103 Rec. Doc. 24-4 at 22.

104 Rec. Doc. 24-7.

105 Rec. Doc. 24-2 at 18; Rec. Doc. 24-4 at 58.

106 Rec. Doc. 24-3 at 5.

would also be returning to Plaintiff’s platform.107 Accepting Plaintiff’s statement of uncontested

facts as true, Plaintiff has provided evidence that Defendant’s failure to separate the harassing

employees from Plaintiff rendered Defendant’s conduct “not reasonably calculated to halt the

harassment.”108 Indeed, in many of the cases where the Fifth Circuit has found that the employer

did take “prompt remedial action” as a matter of law, the employer had separated the harasser from

the plaintiff.109 Plaintiff’s evidence showing that Shamrock failed to separate the harassing

employees and otherwise failed to discipline them is sufficient for a jury to find that Shamrock did

not take “prompt remedial action.”

Accordingly, because Plaintiff has made a prima facie showing of a hostile work

environment under Title VII and the Louisiana Revised Statute § 23:332, Plaintiff’s unopposed

motion for summary judgment on this claim must be granted. The motion must be granted not

simply because Defendant failed to oppose it, but because Plaintiff presents evidence sufficient to

meet each element of a hostile work environment claim.

B. Constructive Discharge

“A resignation is actionable under Title VII, allowing the plaintiff to seek compensatory

damages for events after the resignation, only if the resignation qualifies as a constructive

discharge.”110 To prove a constructive discharge, a plaintiff must “establish that working

107 Id.

108 Williams-Boldware, 741 F.3d at 640.

109 Skidmore v. Precision Printing & Packaging, Inc., 188 F.3d 606, 616 (5th Cir. 1999) (finding that the

employer took prompt remedial action when it reprimanded the harasser and transferred the plaintiff to a new shift);

Briones v. Caleb Bret USA, Inc., No. 94-20927, 1995 WL 625328, at *3 (5th Cir. Oct. 3, 1995) (holding that the

employer took prompt remedial action where it investigated the complaint, reprimanded the harasser, and offered to

transfer the plaintiff to an office away from the harasser); Nash v. Electrospace Sys., Inc., 9 F.3d 401, 404 (5th Cir.

1993) (same); Carmon v. Lubrizol, 17 F.3d 791, 793 (5th Cir. 1994) (finding prompt remedial action where the

employer issued a memorandum about proper workplace behavior and transferred the harassing employee to another

shift).

110 Brown v. Kinney Shoe Corp., 237 F.3d 566, 566 (quoting Faruki v. Parsons, 123 F.3d 315, 319 (5th Cir.

conditions were so intolerable that a reasonable employee would feel compelled to resign.”111 To

determine whether a reasonable employee would feel compelled to resign, the Fifth Circuit has

considered the relevancy of the following events:

(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4)

reassignment to menial or degrading work; (5) reassignment to work under a

younger supervisor; (6) badgering, harassment, or humiliation by the employer

calculated to encourage the employee’s resignation; or (7) offers of early retirement

[or continued employment on terms less favorable than the employee’s former

status]....112

“Constructive discharge requires a greater degree of harassment than that required by a hostile

work environment claim. Discrimination alone, without aggravating factors, is insufficient for a

claim of constructive discharge, as is a discriminatory failure to promote.”113

Here, Plaintiff was not discharged; he resigned.114 Plaintiff contends that he was

constructively discharged because Shamrock acknowledged that Plaintiff has been subjected to

harassment based on his Native American heritage and told Plaintiff they would remedy the

situation, yet failed to follow through on this promise.115

Analyzing the aggravating factors listed above, Plaintiff has not presented any evidence to

show that: (1) he was demoted from his position; (2) that he faced a reduction in salary; (3) that

Shamrock reduced his job responsibilities; (4) that he was reassigned to menial or degrading work;

(5) that he had to work under a younger supervisor; (6) that he was badgered, harassed, or

1997)).

111 Id.

112 Id. (citing Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000)).

113 Id. (citing Benningfield v. City of Hous., 157 F.3d 369, 378 (5th Cir. 1998)).

114 Rec. Doc. 24-2 at 17.

115 Id. at 28.

humiliated by Shamrock in a manner calculated to encourage Plaintiff’s resignation; or (7) that

Shamrock made any offers of early retirement or continued employment on terms less favorable

than the employee’s former status. Thus, even accepting Plaintiff’s version of the facts as true,

Plaintiff has not presented any evidence to support any of the factors that the Fifth Circuit considers

in analyzing a constructive discharge claim. As the Court has stated, a motion for summary

judgment cannot be granted simply because it is unopposed. Because Plaintiff has not presented

any evidence to support his constructive discharge claim, summary judgment is not appropriate.

C. Damages

Having found that Plaintiff is entitled to summary judgment on his hostile work

environment claim, the Court must determine the damages to which Plaintiff is entitled. Plaintiff

requests a total damages award of $687,069.72.116 Plaintiff contends that this includes $387,069.72

in backpay and $300,000 in compensatory damages.117 In addition, Plaintiff also requests he be

awarded pre-judgment interest on any damages awarded by the Court, as well as attorney’s fees.118

Plaintiff’s back pay request was calculated based on the number of weeks between the date

of Plaintiff’s alleged constructive discharge on April 28, 2017, and the filing of the instant

motion.119 However, as explained above, the Court has found that Plaintiff is not entitled to

summary judgment on the constructive discharge claim. Furthermore, several circuits, including

the Fifth Circuit, have held that back pay is not available where the plaintiff was not actually or

constructively discharged.120 Accordingly, Plaintiff has submitted insufficient briefing for the

116 Rec. Doc. 24–2 at 29.

117 Id.

118 Id.

119 Id.

120 Boehms v. Cromwell, 139 F.3d 452, 461 (5th Cir. 2006); Spencer v. Wal-Mart Stores, 469 F.3d 311, 317

Court to determine the appropriate damages award. Plaintiff is directed to submit supplemental

briefing, within fourteen days of this Order and Reasons, as to the amount of damages he is seeking

for the hostile work environment claim, as well as prejudgment interest and attorney’s fees.

IV. Conclusion

Considering the foregoing reasons,

IT IS HEREBY ORDERED that Plaintiff Josh Desport’s “Motion for Summary

Judgment”!”! is GRANTED IN PART, DENIED IN PART, AND DEFERRED IN PART.

Summary judgment is granted as to Plaintiff's hostile work environment claim. Summary

judgment is denied as to Plaintiff's constructive discharge claim. The Court defers ruling in part

to the extent Plaintiff requests damages.

IT IS FURTHER ORDERED that Plaintiff shall submit supplemental briefing, within

fourteen days of this Order and Reasons, as to the amount of damages he is seeking for the hostile

work environment claim, as well as prejudgment interest and attorney’s fees.

NEW ORLEANS, LOUISIANA, this 14th_ day of December, 2021.

NANNETTE JQUAVETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

(3d Cir. 2006).

21 Rec. Doc. 24.

19