Moore v. Excel Contractors, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

WELDON MOORE

CIVIL ACTION

VERSUS

NO. 21-698-JWD-RLB

EXCEL CONTRACTORS, LLC, d/b/a

EXCEL USA

RULING AND ORDER

This matter comes before the Court on the Motion for Summary Judgment (Doc. 26) by

Defendant Excel Contractors, LLC, (“Defendant” or “Excel”). Plaintiff Weldon Moore (“Plaintiff”

or “Moore”) opposes the motion, (Doc. 35), and Excel has filed a reply, (Doc. 44). Oral argument

is not necessary. The Court has carefully considered the law, the facts in the record, and the

arguments and submissions of the parties and is prepared to rule. For the following reasons, the

motion is granted in part and denied in part.

I. RELEVANT BACKGROUND

Plaintiff Weldon Moore, known to others as “Mo,” is an African American truck driver

residing in the Lake Charles area of Louisiana. (Defendant[’s] . . . Response to Plaintiff[’s] Local

Rule 56(c) Statement of Issues of Material Fact by Defendant[] . . . (“DRSIMF”) ¶ 1, Doc. 44-2.)1

Moore worked as a truck driver for Ron Williams Construction (“Ron Williams”) at the Louisiana

Pigment plant in Lake Charles from 2010 to 2014, before Ron Williams was acquired by Excel in

April 2016. (Id. ¶ 2.)

1 When the DRSIMF is cited alone, then that fact has either been admitted in Plaintiff[’s] Local Rule 56(c) Statement

of Issues of Material Fact (“SIMF”), Doc. 35-1, or been qualified or denied in such a way as to have it be deemed

admitted as not properly controverted. See M.D. La. Civ. R. 56(c), (f); Guillory v. Carrington Mortg. Servs., LLC, No.

22-192, 2024 WL 1020555, at *1 n.1 (M.D. La. Mar. 8, 2024) (deGravelles, J.) (applying this rule).

Louisiana Pigment is Excel’s client. (Id. ¶ 3.) Excel had several divisions at the plant,

including landfill operators, coke drivers (because they haul coke material), ore drivers, and

neutralization drivers (because they haul the waste product to the landfill). (Reed Dep. 16–17, Doc.

35-4 at 7–8.)

In or around 2014, Jeff Addison, a supervisor for Ron Williams at the time, discharged Mr.

Moore in response to a newly instituted safety requirement by one of Ron Williams’ clients.

(Moore Dep. 18–20, Doc. 35-3 at 9–11.) Moore did not recall having any issues with Addison at

Ron Williams prior to his termination there. (Id. at 20, Doc. 35-3 at 11.)

Moore began working at Excel in or around October 2016, after a Louisiana Pigment

supervisor asked Moore if he would be interested in returning to work at Louisiana Pigment. (Id.

at 13–14, Doc. 35-3 at 4–5.) On hearing from other employees at the Louisiana Pigment site about

Moore, Addison called Moore the next day and told him, “You’re working for me.” (Id.)

But relations between Moore and Addison would disintegrate. As will be explained below,

Moore claims that Addison made a racially offensive joke to Moore and then began harassing

Moore almost daily for a number of years. All of this culminated in Moore filing the instant suit

against Excel alleging a racially hostile work environment and retaliation in violation of 42 U.S.C.

§ 1981, as amended by the Civil Rights Act of 1991. (Doc. 1 ¶ 1.)

Plaintiff subsequently amended his complaint to claim that, shortly after the instant lawsuit

was served on Excel, Defendant ordered Plaintiff not to return to work until further notice. (Doc.

13 ¶ 117–121.) Plaintiff thus pleads that he suffered a retaliatory termination. (Id.)

Excel now moves for summary judgment. (Doc. 26.) Defendant seeks dismissal of all

claims against them. (Id. ¶ 2–4.)

II. SUMMARY JUDGEMENT STANDARD

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “The movant bears the initial burden and must identify ‘those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’”

Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted)).

If the mover bears his burden of showing that there is no genuine issue of fact, “its opponent

must do more than simply show that there is some metaphysical doubt as to the material facts. . .

. [T]he nonmoving party must come forward with ‘specific facts showing that there is a genuine

issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)

(internal citations omitted). The non-mover’s burden is not satisfied by “conclusory allegations,

by unsubstantiated assertions, or by only a scintilla of evidence.” Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994) (citations and internal quotations omitted).

Ultimately, “where the record taken as a whole could not lead a rational trier of fact to find

for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., 475

U.S. at 587 (cleaned up). Further:

In resolving the motion, the court may not undertake to evaluate the

credibility of the witnesses, weigh the evidence, or resolve factual

disputes; so long as the evidence in the record is such that a

reasonable jury drawing all inferences in favor of the nonmoving

party could arrive at a verdict in that party’s favor, the court must

deny the motion.

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991) (citations omitted).

III. DISCUSSION

A. Hostile Work Environment

Excel first argues that, even assuming that Plaintiff’s supervisor Addison regularly called

Plaintiff the disparaging names alleged—specifically, “Black ass,” “Black bitch,” and “Black

motherfucker,”—and even assuming Addison made the offensive joke claimed—specifically, “if

a Black man and a Mexican man fell off a high-rise building, who do you think would hit the

ground first?” . . . “Who gives a f__k?”—such comments and the joke “are woefully inadequate”

to demonstrate the objectively abusive environment required for a hostile work environment claim.

(Doc. 26-2 at 6; Doc. 35 at 7.) Defendant maintains that the comments were made sporadically

over ten years, are insufficiently severe as a matter of law, were not physically threatening, and

did not interfere with Plaintiff’s work performance. (Doc. 26-2 at 6.) Defendant cites a number of

Fifth Circuit cases in support of this position. (Id. at 6–7.) Defendant also points out that Plaintiff

reported Addison’s comments four times, with the last being to Shaun Dunn, Excel’s Vice

President; Dunn scheduled a meeting, Addison resigned before the meeting took place, and no

further discrimination occurred. (Id. at 8.)

Plaintiff responds that a reasonable jury could find that Excel created a hostile work

environment. (Doc. 35 at 3.) After arguing that Defendant did not plead the Faragher/Ellerth

defense, Plaintiff says that Defendant is liable under the negligence standard—that is, it knew or

should have known of the harassment and failed to take prompt remedial measures. (Id. at 4.)

Turning to Defendant’s main arguments, Plaintiff says that, under Fifth Circuit law,

constant verbal harassment with “sporadic” forms of other derogatory comments are enough to

survive summary judgment. (Id. at 5 (citing EEOC v. WC&M Enters., Inc., 496 F.3d 393, 399 (5th

Cir. 2007); Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000), overruled on other grounds,

Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53 (2006)).) Here, Plaintiff maintains that the

harassment “occurred ‘almost daily’ for years, was at times physically threatening, and culminated

in both cutbacks to his hours and disciplinary writeups.” (Id. at 6–7.) Additionally, Addison used

the disparaging names in front of others, with the intent of humiliating him. (Id. at 7.) Plaintiff

asserts: “Addison’s harassment escalated as well, in the form of hanging up on Mr. Moore

repeatedly, turning his back on Moore, accusing Moore of stealing time, and cutting Mr. Moore’s

hours, which in fact interfered with his work.” (Id. at 8.) Ultimately, says Plaintiff, Excel “ignores

the record and fails to engage the authorities it purports to rely on, which are entirely related to

string citations” that are “inapposite.” (Id. at 8–9.)

Plaintiff goes on to argue that Excel should be strictly liable to Plaintiff because his

supervisor’s harassment resulted in a tangible employment action, namely, his disciplinary write

ups and his cutting Plaintiff’s hours. (Id. at 10–11.) Excel does not address this form of liability,

but, in any event, even if there were no tangible employment action, Plaintiff could still recover

because Defendant did not plead the Faragher/Ellerth defense. (Id. at 11.)

Further, contends Plaintiff, Excel was negligent in not responding promptly and in not

adequately remedying the harassment Moore complained of on numerous occasions. (Id. at 12–

13.) Indeed, Excel took no action whatsoever, failing even to document one, much less investigate.

(Id. at 13.) Plaintiff then summarizes his evidence demonstrating Excel’s failures before and after

Moore’s four complaints to management. (Id. at 13–14.)

In reply, Excel distinguishes Plaintiff’s cases, arguing that each involved more frequent or

severe discrimination than in the instant case. (Doc. 44 at 1–2.) Excel asserts:

Even assuming that these comments were made and that Plaintiff

believed they were subjectively offensive, they are woefully

inadequate to establish a hostile work environment as the totality of

the circumstances fails to demonstrate an objectively abusive work

environment: (1) he only challenged a handful of remarks made

sporadically over the course of nearly ten years; (2) none of the

comments he alleges occurred are severe as a matter of law; and (3)

none of the comments are . . . physically threatening.

(Id. at 3.) Defendant argues that Plaintiff’s affidavits are “inadmissible and irrelevant summary

judgment evidence” based on hearsay and events to which Plaintiff had no knowledge and from

which he suffered no effect. (Id.)

Additionally, Excel argues that it took prompt action to remedy the harassment; Plaintiff

experienced no harassment for sixteen months following Dunn and Addison’s resignation, and

Plaintiff only complained three times in ten years before that. (Id. at 4.)

Finally, the alleged harassment did not affect a term or condition of employment; the write

up did not result in the loss of pay or affect his ability to do his job, and the time records that Excel

provides show that Plaintiff was given more opportunities than most Excel truck drivers. (Id. at 4–

5.)

“The analysis of discrimination claims under Section 1981 is identical to the analysis of

Title VII claims.” Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 386 (5th Cir.

2017).

To state a hostile work environment claim under Title VII, the

plaintiff must show that: (1) the victim belongs to a protected group;

(2) the victim was subjected to unwelcome harassment; (3) the

harassment was based on a protected characteristic; (4) the

harassment affected a term, condition, or privilege of employment;

and (5) the victim's employer knew or should have known of the

harassment and failed to take prompt remedial action.

WC&M Enters., 496 F.3d at 399. Here, the fourth and fifth requirements are at issue. The Court

will take each of these in turn.

a. Affected a Term or Condition of Employment

i. Applicable Law

As Judge Dennis explained in WC&M Enterprises:

The Supreme Court has emphasized that Title VII's prohibition “is

not limited to ‘economic’ or ‘tangible’ discrimination.” Meritor

Savings Bank FSB v. Vinson, 477 U.S. 57, 64 [ ] (1986). Rather,

“[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,’ Title VII is violated.”

Harris v. Forklift Sys., 510 U.S. 17, 21 [ ] (1993) (quoting Meritor

Savings Bank, 477 U.S. at 65, 67 [ ]); see also [Harvill v. Westward

Commc’ns, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005)].

For harassment to be sufficiently severe or pervasive to alter the

conditions of the victim’s employment, the conduct complained of

must be both objectively and subjectively offensive. Harris, 510

U.S. at 21–22 [ ]. Thus, not only must the victim perceive the

environment as hostile, the conduct must also be such that a

reasonable person would find it to be hostile or abusive. Id. To

determine whether the victim’s work environment was objectively

offensive, 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. Id. at 23 [ ]. No single factor is

determinative. Id. In short, a showing that the employee’s job

performance suffered is simply a factor to be considered, not a

prerequisite. Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261

F.3d 512, 524 n. 33 (5th Cir. 2001)[, abrogated on other grounds by

Burlington, 548 U.S. 53]. As the Supreme Court stated, “even

without regard to . . . tangible effects, the very fact that the

discriminatory conduct was so severe or pervasive that it created a

work environment abusive to employees because of their race,

gender, religion, or national origin offends Title VII’s broad rule of

workplace equality.” Harris, 510 U.S. at 22 [ ].

Under the totality of the circumstances test, a single incident of

harassment, if sufficiently severe, could give rise to a viable Title

VII claim as well as a continuous pattern of much less severe

incidents of harassment. See Harvill, 433 F.3d at 435–36; El–Hakem

v. BJY Inc., 415 F.3d 1068, 1073 (9th Cir. 2005) (“ ‘The required

level of severity or seriousness varies inversely with the

pervasiveness or frequency of the conduct.’ ”) (quoting Nichols v.

Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001));

Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1047 (7th Cir. 2002)

(stating that severity and pervasiveness are, “to a certain degree,

inversely related; a sufficiently severe episode may occur as rarely

as once, while a relentless pattern of lesser harassment that extends

over a long period of time also violates the statute.”) (citation

omitted). Indeed, this court has found that a regular pattern of

frequent verbal ridicule or insults sustained over time can constitute

severe or pervasive harassment sufficient to violate Title VII. See,

e.g., Walker[, 214 F.3d at 626] (holding that African–American

employees who were subjected to a variety of racial slurs over three-

year period raised fact issue as to whether slurs were sufficiently

severe or pervasive to violate Title VII); Farpella–Crosby v.

Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996) (plaintiff

presented sufficient evidence from which a jury could find severe or

pervasive harassment where plaintiff was subjected to offensive,

sex-based comments two to three times per week).

WC&M Enters., 496 F.3d at 399–400.

It is true that the Fifth Circuit has cautioned that:

The mere utterance of an ethnic or racial epithet that engenders

offensive feelings in an employee, offhand comments, and isolated

incidents (unless extremely serious) will not amount to

discriminatory changes in the terms and conditions of employment.

Rather, the plaintiff must establish that the harassment complained

of was sufficiently severe or pervasive to alter the conditions of the

plaintiff’s employment and create an abusive working environment.

James v. Lane, No. 12-523, 2014 WL 4809272, at *7 (M.D. La. 2014) (citations omitted).

Moreover, the Fifth Circuit is replete with instances in which a few isolated comments were

insufficient to establish Title VII liability. See, e.g., Long v. Eastfield Coll., 88 F.3d 300, 309 (5th

Cir. 1996) (single offensive joke about condoms in plaintiff’s presence was insufficient to prove

hostile work environment claim); Mosley v. Marion Cnty., Miss., 111 F. App’x 726, 728 (5th Cir.

2004) (evidence of three instances of using racial slurs was insufficient to establish a genuine issue

of material fact for a hostile work environment claim).

But Plaintiff’s authority demonstrates that this burden is hardly insurmountable. For

example, in Johnson v. Halstead, the Fifth Circuit was faced with allegations in which the

employee argued he was “repeatedly subjected to behavior that was hostile, intimidating, and[ ]

bullying, and it was done publicly over a period of more than three years.” Johnson, 916 F.3d at

417–18.

More specifically, he endured “false accusations of wrong doing,

name calling, campaigning to turn others against [him], encouraging

[his] peers and direct reports not to work with [him], or for [him]

thereby marginalizing and undermining his supervisory

effectiveness.” . . . [T]here were occasions when the tension between

[the plaintiff] and [his supervisor] was “so intense that the potential

for physical aggression and altercation appeared imminent.” It

concluded that “race was at the core of the differences” in this

conflict. And [the Chief of Police] publicly admitted not only that

harassment occurred, but also that it resulted from [the plaintiff’s]

“skin color.”

Id. In finding that these allegations stated a claim for a hostile work environment, the Fifth Circuit

explained:

These allegations go well beyond “simple teasing, offhand

comments, and isolated incidents.” Faragher, 524 U.S. at 788 [ ]

(cleaned up). They allege a lengthier period of harassment than other

verbal abuse that we have found was pervasive enough to create a

hostile work environment. See [WC&M Enters., 496 F.3d at 400]

(finding genuine issue of material fact as to existence of hostile work

environment when plaintiff was “subjected to verbal harassment on

a regular basis for a period of approximately one year”); see also

Walker[, 214 F.3d at 626–27] (also finding a fact issue when

African-American employees were subjected to a variety of racial

slurs over three-year period), abrogated on other grounds by

Burlington[, 548 U.S. 53]. Most of all, Johnson provides concrete

examples of how the racial intimidation “interfere[d] with [his]

work performance.” See Harris, 510 U.S. at 23[ ]. The racial

hostility led to officers’ boycotting meetings with Johnson and

ignoring his assignments; colleagues’ refusing to assist with the

grant program Johnson oversaw; and Johnson's being investigated

for fraud. Johnson has alleged a plausible claim of hostile work

environment, and one that is apparent from clearly established law.

If those allegations are not plausible when they are corroborated by

investigators the employer hired, it is tough to imagine when they

will ever be.

Johnson, 916 F.3d at 418.

Likewise, in WC&M Enterprises, which was cited with approval by Johnson, the Fifth

Circuit reversed the district court and found that there were questions of fact as to whether a

Muslim car salesman was subjected to a hostile work environment:

Here, the district court held that even if Rafiq could prove that any

harassment occurred, “he has not shown that it was so severe that it

kept him from doing his job.” In so holding, the district court applied

an incorrect legal standard. Whether Rafiq lost sales as a result of

the alleged harassment is certainly relevant to his hostile work

environment claim; but it is not, by itself, dispositive. The district

court erred in concluding otherwise.

Applying the totality of the circumstances test, we conclude that the

EEOC has presented sufficient evidence to create an issue of fact as

to whether the harassment that Rafiq suffered was so severe or

pervasive as to alter a condition of his employment. The evidence

showed that Rafiq was subjected to verbal harassment on a regular

basis for a period of approximately one year. During that time, Rafiq

was constantly called “Taliban” and referred to as an “Arab” by [a

co-worker] and [the finance manager], who also mocked his diet and

prayer rituals. Moreover, Rafiq was sporadically subjected to

additional incidents of harassment, such as his co-workers’

comments on September 11, 2001, which suggested that he was

somehow involved in the terrorist attacks against the United States;

[his co-worker’s] statement that Rafiq should “just go back where

[he] came from;” and [his direct supervisor’s] October 16, 2002

written warning, which stated that Rafiq was acting like a “Muslim

extremist.” Finally, [the finance manager] frequently banged on the

glass partition of Rafiq’s office, in order to startle him. As noted

above, in the context of [the finance manager’s] other actions toward

Rafiq, a factfinder could reasonably conclude that this conduct was

also motivated by animus stemming from Rafiq’s religion and

national origin.

Although no single incident of harassment is likely sufficient to

establish severe or pervasive harassment, when considered together

and viewed in the light most favorable to the EEOC, the evidence

shows a long-term pattern of ridicule sufficient to establish a claim

under Title VII. See, e.g., Walker, 214 F.3d at 626; Farpella–

Crosby, 97 F.3d at 806; cf. Hussain v. Highgate Hotels, Inc., 126

Fed. Appx. 256, 268–69 (6th Cir. 2005) (plaintiff who was called

“Taliban” on a regular basis by co-workers raised issue of fact on

hostile work environment claim under state civil rights statute).

WC&M Enters., 496 F.3d at 400–01.

ii. Analysis

Having carefully considered the matter in light of the above authorities, the Court will deny

Defendant’s motion on this issue. In short, the Court finds that Plaintiff has easily demonstrated a

question of fact precluding summary judgment on this claim.

First, as stated above, “to determine whether the victim’s work environment was

objectively offensive, 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.” Id. at 399–400. Again, “a regular pattern of frequent verbal ridicule or insults

sustained over time can constitute severe or pervasive harassment sufficient to violate Title VII.”

Id. And “[t]he Supreme Court has emphasized that Title VII’s prohibition is not limited to

‘economic’ or ‘tangible’ discrimination.” Id. (cleaned up).

Here, the evidence shows that the harassment was frequent. Moore stated that, starting in

2016 or the early part of 2017, Addison told Moore the offensive racial joke and, “from that day

forward, [Addison] just start[ed] treating [Moore] crazy.” (Moore Dep. 87, Doc. 35-3 at 60.)

Moore further attests that, when he “was working at Excel under the supervision of Jeff Addison,

Addison called [Moore] and other Black drivers at the plant ‘Black motherfucker’ or ‘Black ass’

or ‘Black bitch’ almost daily.” (Moore Decl. ¶ 5, Doc. 35-11 (emphasis added).) Moore continued,

“Every time [he] was at work when Addison was there, [Addison] would use that language to refer

to [Moore].” (Id.; see also Moore Dep. 87–89, Doc. 35-3 at 60–62 (testifying consistently with his

declaration).) Moore said this language continued even after his 2020 complaint to HR and

management. (Moore Decl. ¶ 8, Doc. 35-11.)

Moore further testified that Addison repeated the offensive joke again in front of other

employees at a later time,” (Moore Dep. 111–12, Doc. 35-3 at 84–85), and then again a third time,

(Id. at 114–15, Doc. 35-3 at 87–88.) After this third time, Moore reported the incident to HR

because Moore was “tired of being called out and . . . felt like [he] was being racially discriminated

against.” (Id. at 115–16, Doc. 35-3 at 88–89.)

Moore’s testimony is consistent with that of other former employees of Excel. Michael

Grimm, a Caucasian truck driver, said that Addison would curse a lot and sound like an angry

person, but Grim didn’t “make much of it, until [he] noticed that [Addison] would single out the

people of color on site with more demeaning language.” (Grimm Decl. ¶ 1–2, 5, Doc. 35-14.)

Grimm continued, “[h]e regularly referred to Johnny Taylor (foreman), Carl LNU (another truck

driver), and Weldon Moore—all African American—as ‘lazy,’ ‘dumb,’ and ‘stupid.’ Although

Jeff Addison would curse at all of us generally, calling us ‘motherfuckers,’ he specifically referred

to the African American drivers as ‘stupid motherfuckers.’” (Id. ⁋ 6 (emphasis added).) Similarly,

Aaliyah Landry, a former truck driver for Excel, also testified that she personally heard Addison

call Moore a “Black motherfucker” soon after she started working there in the spring of 2020.

(Landry Decl. ¶ 4, Doc. 35-17.) Likewise, David Tutson was an African-American security officer

working for a firm which handles security operations for the Louisiana Pigment Plant. (Tutson

Decl. ¶ 1–2, Doc. 35-13.) Tutson testified, “I recall at least a couple times when I heard Jeff

Addison refer to Weldon Moore as ‘Black motherfucker.’” (Id. ¶ 5.) Tutson also recalls Addison

saying disparaging things about other African-Americans, calling another driver Karl Madderson

“lazy motherfucker” and say of him, “I’m a fire that Black motherfucker yet.” (Id. ¶ 6.) Tutson

said he would mostly use this disparaging language toward African Americans. (Tutson Dep. 48–

49, Doc. 35-12 at 21–22.) Tutson said he never heard Addison refer to white employees or

Hispanic employees as “lazy MFers” for the reason that all but one of his truck drivers are African-

Americans. (Id. at 55–56, Doc. 35-12 at 28–29.)

All of this testimony strongly supports the conclusion that the use of disparaging racial

language occurred frequently and that summary judgment is thus inappropriate. See Johnson, 916

F.3d at 418 (citing WC&M Enters. with approval for the proposition that being “subject to verbal

harassment on a regular basis for a period of approximately one year” was sufficient to create

question of fact to preclude summary judgment on hostile work environment claim, and also citing

Walker for the same proposition for an over three-year period).

A reasonable jury could also find that the harassment was severe; “physically threatening

or humiliating” rather than a “mere[ ] . . . offensive utterance;” and affected Moore’s job

performance. See WC&M Enterps., 496 F.3d at 399–400. Addison’s initial comment bears

repeating. Moore testified that, soon after Mr. Moore began working at Excel, beginning in the

latter part of 2016 or early part of 2017, Addison referred to African American employee Carl

Madison in a conversation with Mr. Moore, stating in substance and effect, “[h]e made me so mad

I wanted to call that motherfucker the N-word.” (Moore Dep. 87, Doc. 35-3 at 60.) Mr. Moore

responded, “Boss, you realize you are talking to a black man?” (Id.) At that point, Addison replied,

“If a black man and Mexican are standing on a high rise building and they jumped at the same

time, which one hit the ground first?” When Mr. Moore responded, “I don’t know,” Addison

hollered, “Who gives a fuck?” (Id.) Thus, in addition to referencing the N-word, Addison repeated

this offensive joke several times.

Additionally, Moore also said Addison used the above racial terms—“Black motherfucker”

or “Black ass” or “Black bitch”—to refer to other Black drivers like Carl Madison, Harold

Celestine, and Johnie Taylor, and to other Black non-Excel employees like the security officer

David Tutson. (Moore Decl. ¶ 5, Doc. 35-11.) Addison did this in a way that he wanted other

people to hear how he treated Moore. (Moore Dep. 85, Doc. 35-3 at 58; Moore Decl. ¶ 6, Doc. 35-

11.) Thus, Addison’s conduct was calculated to humiliate Moore and the other African-Americans.

The Court also notes that Marion Berry, a former African American truck driver with

Excel, testified that, in his brief period working at the Louisiana Pigment facility in October or

November 2017, he heard Addison use the “N” word to refer to another African-American

coworker in a conversation in reference to an accident the other employee was involved in. (Berry

Decl. ¶ 5, Doc. 35-16.) Addison was talking to his boss. (Id.) Defendant complains that this is

hearsay, but it’s a statement against a party opponent and thus not hearsay. See Fed. R. Evid.

801(d)(2)(D). In any event, hearsay is generally admissible now with summary judgment motions.2

See Barnett v. Louisiana Dep’t of Health, No. 17-1793, 2023 WL 2467876, at *2 (M.D. La. Mar.

10, 2023) (deGravelles, J.) (laying out authorities for this in Legal Principle #4). Defendant also

describes this evidence as irrelevant, but the Court disagrees; this evidence has a strong tendency

to show Addison’s attitude and intent toward African-Americans generally and Plaintiff in

particular. See Fed. R. Evid. 404(b)(2). It also shows an absence of mistake. See id. Finally, the

evidence easily passes under Fed. R. Evid. 403.

2 Specifically, “a district court may consider a hearsay statement in passing on a motion for summary judgment if the

statement could be reduced to admissible evidence at trial or reduced to admissible form. . . . The most obvious way

that hearsay testimony can be reduced to admissible form is to have the hearsay declarant testify directly to the matter

at trial.” Barnett v. Louisiana Dep’t of Health, No. 17-1793, 2023 WL 2467876, at *2 (M.D. La. Mar. 10, 2023)

(deGravelles, J.) (quoting Ali v. Dist. Dir., 209 F. Supp. 3d 1268, 1276 (S.D. Fla. 2016)).

Moreover, Addison’s harassment went beyond harsh language, all in a way that establishes

harassment. Again, Tutson testified how Addison investigated Plaintiff for allegedly stealing time,

and even told Tutson that Plaintiff was guilty of that misconduct. (Tutson Decl. ¶ 5, Doc. 35-13;

Tutson Dep. 50–55, Doc. 35-12 at 23–28.) Likewise, Grimm also recalled an incident in 2020

when Addison singled Moore out and complained to Grimm about Plaintiff’s time sheets, said

something to the effect that Moore was a “lazy motherfucker” or “lazy piece of crap,” and that

Moore should be fired. (Grimm Decl. ¶ 8, Doc. 35-14.) Grimm said that he knew from observing

Moore that Moore did not use his phone any more than any other co-worker. (Id.) These types of

accusations have specifically been cited as an example by the Fifth Circuit of a type of harassment.

See Johnson, 916 F.3d at 417–18 (citing as evidence of harassment the fact that plaintiff “endured,”

inter alia, “false accusations of wrong doing [and] name calling,” and was “investigated for

fraud”).

Similarly, in 2018 or early 2019, Addison told Moore that he wanted Moore to write

himself up for the dust cap blowing off of his truck, and, when Moore refused, Addison grabbed

him by the arm and drug him out of the trailer. (Moore Dep. 120–121, Doc. 35-3 at 93–94.) This

is precisely the kind of physically threatening conduct which is considered harassment. See

Johnson, 916 F.3d at 417–18 (finding plausible claim for harassment stated when Plaintiff alleged

that “there were occasions when the tension between [the plaintiff] and [his supervisor] was ‘so

intense that the potential for physical aggression and altercation appeared imminent.’”).

Further, after Moore reported Addison to HR in June 2020, Addison issued Moore a

disciplinary writeup accusing him of working a non-scheduled date (i.e., working a Saturday when

he wasn’t supposed to) and of writing false information on his time sheet pertaining to the amount

of time he worked on a particular day; Mark Reed, the Site Supervisor, met with Plaintiff, had him

sign a statement, and issued a verbal warning Addison told him to issue. (Doc. 35-21 (June 29,

2020, write up); Reed Dep. 71–78, Doc. 35-4 at 31–38; see also DRSIMF ¶ 33, Doc. 44-2.) This

was a form of disciplinary action that, if Moore did not improve, could lead to further discipline.

(Reed Dep. 78, Doc. 35-4 at 38.) Reed testified that he had only issued one or two warning notices

to Moore before, and they would’ve been years before. (Id. at 108, Doc. 34-4 at 48.) The situation

was so severe that Grimm warned Plaintiff “to be careful” because Addison “was trying to get rid

of [him]” and make him leave. (Moore Dep. 128, Doc. 35-3 at 101.) Jonathan Taylor likewise told

him “more than once” to “watch [him]self” and that Addison “has it hard on for [Plaintiff].” (Id.

at 138, Doc. 35-3 at 111.) Contrary to Defendant’s position, these types of write ups can in fact

contribute to a harassment claim. See WC&M Enters., 496 F.3d at 400–01 (citing a “written

warning” as an example of harassment); Johnson, 916 F.3d at 417–18 (again referencing false

accusations of wrong doing).

Plaintiff also cites the fact that, after he reported Addison to HR, Addison began to cut

Plaintiff’s hours. Moore testified that he “went from 60 hours sometimes to working 40, 30-

something hours, sometimes 50.” (Moore Dep. 82–83, Doc. 35-3 at 55–56.) According to Plaintiff,

Addison would only put Plaintiff somewhere else to make his hours when “someone else didn’t

show up to work.” (Id.) Moore would be sent home when other drivers weren’t, (id. at 90, Doc.

35-3 at 63), and Moore said he was the only driver willing to relieve other drivers in their trucks.

(Id. at 93, Doc. 35-3 at 66.) Moore accounted for having the same or more hours than others (based

on Excel’s spreadsheet) by the fact that the entries involve “different positions, different trucks.”

(Id. at 98, Doc. 35-3 at 71.) Moore typically worked 60 hours per week as a Coke truck, whereas

those working 36 or 46 hours were working in a whole other section of trucks.” (Id. at 98–99, Doc.

35-3 at 71–72.) Moore said he didn’t make his 60 hours per week. (Id.) When Moore worked

neutralization, they had a 36-hour or 48-hour week. (Id. at 100–01, Doc. 35-3 at 73–74.) Further,

two employees (Mr. Desotell and M. Celestin) had fewer hours on a particular week because they

worked 28 hour and 38 hour shifts on their trucks, respectively. (Id. at 104–06, Doc. 35-3 at 77–

79.) Again, Coke truck drivers had 60 hours per week. (Id.) Defendant disputes Plaintiff’s

characterization of the records, but that merely highlights that these are questions of fact.

Moore’s belief that his hours were being cut is further supported by other evidence in the

record. First, Moore made a contemporaneous complaint in Cheryl Matt’s office in May 2020

about his hours being cut while other White employee’s hours were not similarly cut. (Id. at 128,

Doc. 35-3 at 101.) In support of this, Matt testified that he also recalls Moore complaining about

his hours. (Matt Dep. 63, Doc. 35-8 at 27.) Even stronger, Aaliyah Landry testified that Addison

and Reed were racist in hiring and assignments; for example, Addison “only allowed Caucasians

to work at the landfill, where they were treated better than the rest of us working at the end dump.”

(Landry Decl. ¶ 8, Doc. 35-17.) All of this highlights the existence of questions of fact on the issue

of whether Moore’s hours were in fact cut.

Finally, the incident involving Addison and Moore’s then fiancé, now wife, presents strong

support of severe harassment by Addison. Moore testified:

Q. Then the hurricane occurs, and that’s when Mr. Addison said

something to your wife on the phone, and she called looking for you

-- that was of a sexual nature?

A. He told my wife if she needed anything. And he emphasized it

again. “I mean anything. Don’t call him. Don’t call – don’t call

Weldon. Call me.” And that made my wife feel kind of bad, and it

really, really, really pissed me off, you know, because it’s not only

on the job now. He done take a step to come into my home now.

And I talked to Mr. Dunn about that, and I strongly believe it pissed

him off because of his reaction. He said, “If Jeff going to do that, he

can’t work for him.”

(Moore Dep. 134–35, Doc. 35-3 at 107–08.) Another employee—Josh Arabie, one of the landfill

hands—also heard Addison say this. (Id.) Tutson testified that he saw Moore “looking really upset.

He was breathing heavily and looked agitated. Johnny Taylor, an African American foreman, was

there trying to calm him down.” (Tutson Decl. ¶ 9, Doc. 35-13.) Tutson said he “had never seen

[Moore] look so upset as [Tutson] saw him that day in the break room. Both Johnnie Taylor and

[Tutson] tried calming [Moore] down. [Moore] threatened to quit, and [Tutson] tried telling him

to just power through the rest of the override and get the extra pay. He eventually calmed down.”

(Id.)

The Court rejects Defendant’s efforts to downplay and dismiss this incident. Defendant

claims that Addison denies these allegations, (Doc. 44-2 at 22–23), but that further highlights the

questions of fact on this issue. Defendant also claims the incident is irrelevant, but the Court finds

this highly relevant to demonstrate the severe and humiliating harassment to which Plaintiff was

subjected. Indeed, it strikes the Court as odd to say that Addison’s harassment did not affect a term

or condition of employment when it affected Moore so much that he had to be talked out of quitting

his job. See WC&M Enters., 496 F.3d at 399–400 (“[t]he Supreme Court has emphasized that Title

VII's prohibition is not limited to ‘economic’ or ‘tangible’ discrimination.”). And all of this, when

combined with the other evidence presented above, could lead a reasonable juror to conclude that

Addison’s actions were directly caused by Moore’s race.

In sum, summary judgment on this issue is inappropriate. Some of this harassment—the

offensive joke, false accusations of misconduct, and the incident with Moore’s wife—are likely

sufficient on their own to support a harassment claim. But, even if “no single incident of

harassment [was] likely sufficient to establish severe or pervasive harassment, when considered

together and viewed in the light most favorable to [Moore], the evidence shows a long-term pattern

of ridicule sufficient to establish a claim under Title VII” and thus § 1981. WC&M Enters., 496

F.3d at 400–01. As a result, Defendant’s motion on this issue will be denied.

b. Whether Excel took Reasonable Care to Prevent the Harassment

Again, the final element of a hostile work environment claims is that “the employer knew

or should have known of the harassment in question and failed to take prompt remedial action.”

Price v. Wheeler, 834 F. App’x 849, 860 (5th Cir. 2020) (citing Ramsey v. Henderson, 286 F.3d

264, 268 (5th Cir. 2002)). The Fifth Circuit has explained:

“[A] plaintiff need not show that the employer knew about the

harassment if the claim involves the acts of a supervisor. To that

extent, an employer is vicariously liable for the actions of its

supervisory employees. The employer has an affirmative defense to

liability or damages in this instance with proof that (1) the employer

took reasonable care to prevent the harassing behavior and (2) the

employee failed to take advantage of such preventative or corrective

opportunities. The employer is not entitled to raise the affirmative

defense, however, if the harassment takes the form of a tangible

employment action. Watts v. Kroger Co., 170 F.3d 505 (5th Cir.

1999). “A tangible employment action constitutes a significant

change in employment status, such as hiring, firing, failing to

promote, reassignment with significantly different responsibilities,

or a decision causing a significant change in benefits.” Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

Price, 834 F. App’x at 860 n.8.

Here, there’s no dispute that Addison was a supervisor, but there’s some question as to

whether Defendant properly pled the relevant affirmative defense. The Court finds that, while

Defendant did not expressly invoke the Faragher/Ellerth defense, a fair reading of Defendant’s

Answer shows that Excel attempted to do so. (See Doc. 14 (14th, 16th, and 18th Affirmative

Defenses)).3

3 Defendant pled:

FOURTEENTH AFFIRMATIVE DEFENSE

But, though Plaintiff has pled this defense, the Court finds that Excel has failed to show it

is entitled to judgment on it. Before the Court turns to the facts, it must first emphasize Defendant’s

burden on this issue:

“[I]f the movant bears the burden of proof on an issue, either because he is the plaintiff or

as a defendant he is asserting an affirmative defense, he must establish beyond peradventure [(that

is, beyond doubt)] all of the essential elements of the claim or defense to warrant judgment in his

favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986); peradventure, Merriam-

Webster's Dictionary (2022), https://www.merriam-webster.com/dictionary/peradventure (last

visited July 13, 2022); see also Universal Sav. Ass’n v. McConnell, No. 91-6197, 1993 WL

560271, at *2 (5th Cir. Dec. 29, 1993) (unreported) (“Where the summary judgment movant bears

the burden of proof at trial, the summary judgment evidence must affirmatively establish the

movant’s entitlement to prevail as a matter of law.”). That is,

In contrast, if the movant bears the burden of proof on a claim at

trial, then its burden of production is greater. It must lay out the

elements of its claim, citing the facts it believes satisfies those

Defendant did not violate the laws or legal claims cited in the First

Amended Complaint; alternatively, Defendant made good-faith efforts to comply

with such laws and, at all relevant times to this action, Defendant had reasonable

grounds for believing its actions with respect to Plaintiff were not in violation of

any law, rule, regulation, or guideline. . . .

SIXTEENTH AFFIRMATIVE DEFENSE

Defendant denies that Plaintiff was discriminated against, harassed,

retaliated against, or terminated by Defendant. In the alternative, at all material

times, Defendant Excel maintained and enforced appropriate, good faith policies

and procedures prohibiting unlawful discrimination, harassment and retaliation in

the workplace. Such policies and procedures established specific methods for

reporting, investigating and, if warranted, for obtaining remediation of such

alleged conduct. . . .

EIGHTEENTH AFFIRMATIVE DEFENSE

Defendant avers that it took prompt and remedial action upon receiving

Plaintiff’s complaint of discrimination and harassment, and that since taking such

action, Plaintiff has not complained of any other acts of discrimination,

harassment or retaliation.

(Doc. 14 at 17–18.)

elements, and demonstrating why the record is so one-sided as to

rule out the prospect of the nonmovant prevailing. If the movant fails

to make that initial showing, the court must deny the motion, even

if the opposing party has not introduced contradictory evidence in

response.

10A Mary Kay Kane, Federal Practice and Procedure (Wright & Miller) § 2727.1 (4th ed. 2022).

Here, Defendant has not established that all reasonable jurors would conclude that “[Excel]

took reasonable care to prevent the harassing behavior.” First, a reasonable juror could conclude

that there were deficiencies with Excel’s HR system. Until 2019, the Excel administrative offices

in Lake Charles did not have a Human Resources (“HR”) department. (DRSIMF ¶ 9, Doc. 44-2

(admitted)). In 2019, Cheryl Matt, who until then was a recruiter for Excel in its Lake Charles

administrative offices, was given an added role of HR generalist, of which her primary function

was to assist Excel employees with issues relating to their employee benefits and insurance. (Id. ¶

10.) Matt did not report to anyone in HR, and there were no Excel HR personnel charged with

overseeing HR policies in the Lake Charles area. (See ¶ 11.) Other than a January 2018 anti-

harassment training session held for Excel management, Matt underwent no training on Excel’s

anti-harassment policy. (Id. ¶ 13.) Landry testified that “Excel did not administer anti-harassment

training during the entire time [she] worked there.” (Landry Dep. ¶ 7, Doc. 35-17.) Robert Lout,

Excel Project Manager, likewise testified that he did not remember ever taking any anti-harassment

training there. (Lout Dep. 62, Doc. 35-9 at 34.) All of this creates questions of fact about the

adequacy of Excel’s efforts to prevent harassment.

Moreover, Plaintiff also presented evidence that Excel failed to take reasonable care to

prevent the harassing behavior after Moore initially reported it. Moore testified that he first

complained about the harassment on August 13, 2017. (Moore Dep. 116–18, Doc. 35-3 at 89–91.)

Matt didn’t take any contemporaneous notes during this meeting. (Matt Dep. 69, Doc. 35-8 at 33.)

According to Moore, Matt told Moore to write everything down that had happened, but she didn’t

say she would talk to Mr. Lout, Mr. Dunn, or anybody else. (Moore Dep. 118–19, Doc. 35-3 at

91–92.) As explained above, the abuse escalated after this complaint.

Nothing changed, and in May 2020, Moore called Lout and told him he was still having

problems with Addison and was being discriminated against. (Moore Dep. 125–26, Doc. 35-3 at

98–99.) The next day, he went to Lout’s office and then was asked to go to Matt’s office where

Matt and Addison were. (Id. at 124–25, Doc. 35-3 at 97–98.) Plaintiff testified that he “explained

to them what happened, and [he] didn’t receive any help.” (Id. at 128, Doc. 35-3 at 101.) That is,

he complained about his hours and “the racial discrimination and the racial name-calling[ ].” (Id.

at 83–84, Doc. 35-3 at 56–57.)

Cheryl Matt did not take notes during the meeting. (DRSIMF ¶ 50, Doc. 44-2.) Matt created

a document purporting to reflect her recollection of the meeting (Pl’s Ex. 16) approximately nine

months later, on February 9, 2021, in response to a request for information concerning such

meeting from either HR or Excel’s counsel one day after Mr. Moore sent Excel a document

preservation letter. (DRSIMF ¶ 51, Doc. 44-2.) That document does not contain everything that

was said at the meeting. (Matt Dep. 86, Doc. 35-8 at 50.) Matt did not interview Michael Grimm

about things that Addison reportedly said, nor did Matt investigate Moore’s complaint. (Matt Dep.

78–80, Doc. 35-8 at 42–44.) Matt was not aware of anyone else in management coming to her

about Addison, and Matt did not follow up on Moore’s complaint and was unaware of Addison

ever being investigated. (Id. at 81–82, 87, Doc. 35-8 at 45–46, 51.) Lout likewise never had any

follow up conversation with Matt after the meeting, so there was no documentation concerning the

meeting, and he did not know of the outcome. (Lout Dep. 31–32, Doc. 35-9 at 12–13.) And all of

this occurred despite the fact that, according to Moore, Addison said nothing during the meeting

and ended it by calling Moore a “motherf—er.” (Moore Dep. 130, Doc. 35-3 at 103.)

Construing the evidence in a light most favorable to Plaintiff and drawing reasonable

inferences in his favor, a reasonable juror could easily find that Excel failed to take reasonable

care to prevent future harassment, which did in fact continue until the incident with Moore’s wife.

Addison formally resigned from Excel in or around October 2020. (DRSIMF ¶ 87, Doc. 44-2.) At

no point did Excel discipline Addison for complaints made against him regarding harassment. (Id.

¶ 90.) As shown above, its investigation failed to show due care. And Addison’s termination

paperwork reflects Excel’s position that Addison is eligible for rehire, despite Moore’s

uninvestigated complaints. (Id. ¶ 91.)

For all of these reasons, summary judgment is inappropriate. Plaintiff easily shows

questions of material fact on his harassment claim, and, consequently, Excel’s motion will be

denied.

B. Retaliation

Defendant asserts that Plaintiff’s retaliation claim fails. (Doc. 26-2 at 8.) According to

Defendant, Plaintiff alleges retaliation after he complained of the racist comments in the form of

a reduction of hours, unwarranted write-ups, and termination (following his filing suit). (Id.)

Defendant maintains that Plaintiff fails the second and third elements of a prima facie case of

retaliation—that is, (a) no adverse employment action was taken against him, and (b) there was no

causal connection between any such protected conduct and the alleged adverse action. (Id. at 9.)

As to the first, Defendant contends that there is no evidence that Moore’s hours were reduced, and

the write ups had zero effect on his pay, title, position, or benefits. (Id. at 10.) Moreover, the alleged

termination occurred well after Addison resigned, making it too remote in time. (Id.) Plaintiff also

cannot show that the complaint was a “but for” reason for resignation, given that Excel had a

legitimate, non-retaliatory reason—namely, the significant product spill Plaintiff caused. (Id.) In

any event, Plaintiff voluntarily resigned, which precludes his claim because Plaintiff has failed to

satisfy the high burden of constructive discharge. (Id. at 10–11.) Plaintiff’s subjective belief that

he was fired is insufficient to establish a claim of constructive discharge. (Id. at 12.) And again,

Addison departed in October 2020, which created about a fourteen-month gap between the

harassment and the resignation. (Id.) Lastly, the investigation into the spill was not out of the

ordinary, and Moore was not treated differently from other employees. (Id. at 12–13.)

Plaintiff counters that he has presented sufficient evidence that, after he complained to HR

about Addison, he suffered materially adverse actions in the form of disciplinary write ups, a

cutback in hours, and (shortly after his lawsuit) a termination of employment (which Excel

mischaracterizes as a “suspension”). (Doc. 35 at 15.) Further, Plaintiff contends that the temporal

proximity was in fact short. (Id.)

On the adverse action requirement, Plaintiff emphasizes that the key is whether the alleged

conduct would dissuade a reasonable worker from making or supporting a charge of

discrimination. (Id. at 16.) Plaintiff then recaps the evidence, explaining how Addison wanted to

“get rid” of him, would humiliate him in front of other employees, would cut his hours and thus

reduce his compensation, would give Plaintiff jobs only others were unwilling to do, and would

subject him to disciplinary write ups and accusations of misconduct. (Id. at 17–18.) Plaintiff also

disputes Defendant’s characterization of his termination as a voluntary resignation. (Id. at 19.)

Plaintiff says there are questions of fact here, as Plaintiff was told not to return to work eight days

after filing the lawsuit, and he did not hear back from Excel until the day after he filed his amended

complaint alleging termination. (Id. (citing SIMF ¶ 117, 123–24).) In any event, a disciplinary

suspension can also constitute an adverse employment action, and Defendant does not address that.

(Id.)

Plaintiff also maintains he satisfies the causal connection requirement too. (Id. at 19–20.)

Moore met with Matt and Lout in June 2020 about Addison’s behavior, and, by August 2020,

Addison engaged in the above adverse actions. (Id. at 20 (citing SIMF ¶ 53, 66–68, 72).) As to the

termination, Moore served the instant lawsuit on Excel on January 3, 2022, and, eight days later,

Excel VP Dunn called Moore and told him not to return to work until Moore heard back from him.

(Id. (citing SIMF ¶ 117).) The radio silence continued until February 10, 2022, when Moore

amended his complaint to allege retaliatory termination, and only then did Moore hear back. (Id.

at 20–21 (citing SIMF ¶ 123–24).)

Plaintiff then contends that Excel failed to meet its burden of production to bring forward

competent summary judgment evidence to show that the actions were for nondiscriminatory or

non-retaliatory reasons. (Id. at 21.) Plaintiff largely disputes Defendant’s evidence that the

investigation and suspension were normal procedure in light of the above timeline. (Id. at 21–22.)

Even if Defendant had met this burden, says Plaintiff, the “record is rife with evidence of

pretext.” (Id. at 22.) Plaintiff provides law that pretext can be shown from a departure from

standard procedure and from a lack of documentation in a way that matters. (Id. at 22–23.) Both

of those are present here with respect to Moore’s termination, along with the testimony of other

employees. (Id. at 23.) Plaintiff then highlights the facts in support of this. (Id. at 23–26 (citing

SIMF ¶¶ 97–98, 103, 109, 111–12, 116–18, 120–130, 134).)

Defendant responds that the alleged harassment did not rise to a level sufficient to

constitute retaliation. (Doc. 44 at 4.) Again, write ups that do not result in a loss of pay aren’t

sufficiently severe, and the evidence shows that Plaintiff did not suffer a reduction in hours. (Id.)

Defendant emphasizes its version of the facts: that Plaintiff admitted in his own handwriting that

the accident occurred and was his fault, that he was suspended and, within days, sought other

employment, and that he was told he could unconditionally return to work. (Id. at 5.) Moreover,

again, Plaintiff’s complaints about Addison occurred 16 months before his alleged termination.

(Id.) Defendant disputes each of the facts highlighted by Plaintiff, arguing that the length of the

investigation and Plaintiff’s subjective belief in termination do not constitute retaliation or

constructive discharge. (Id. at 6–7.)

“Title VII prohibits employers from retaliating against employees who oppose an

employment practice made unlawful by Title VII.” Allen v. Envirogreen Landscape Pros., Inc.,

721 F. App’x 322, 325 (5th Cir. 2017) (citing EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 239

(5th Cir. 2016) (quoting 42 U.S.C. § 2000e–3(a))). Employment practices made unlawful “under

Title VII include ‘fail[ing] or refus[ing] to hire or to discharge any individual, or otherwise to

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

privileges of employment, because of such individual’s race, color, religion, sex, or national

origin.’” Id. (quoting 42 U.S.C. § 2000e–2(a)(1)). “To establish a prima facie case of retaliation

under Title VII, ‘a plaintiff must show that (1) [ ]he participated in an activity protected under the

statute; (2) [his] employer took an adverse employment action against [him]; and (3) a causal

connection exists between the protected activity and the adverse action.’ ” Id. (quoting Feist v. La.

Dep’t of Justice, Off. of the Att’y Gen., 730 F.3d 450, 454 (5th Cir. 2013) (citation omitted)).

Once the plaintiff successfully presents a prima facie case of retaliation, “the burden shifts

to the employer to state a legitimate, non-retaliatory reason for its decision.” Allen, 721 F. App’x

at 325 (quoting LeMaire v. Louisiana, 480 F.3d 383, 388–89 (5th Cir. 2007) (citation omitted)). If

the “employer does so, the burden shifts back to the employee to demonstrate that the employer’s

reason is pretext for retaliation.” Id. “In order to avoid summary judgment, the plaintiff must show

‘a conflict in substantial evidence’ on the question of whether the employer would not have taken

the action ‘but for’ the protected activity.” Id. (quoting Feist, 730 F.3d at 454 (quoting Long, 88

F.3d at 308)).

Here, the issues are (1) with respect to Plaintiff’s prima facie case, (a) did he suffer an

adverse employment action; and (b) was there a causal connection between the adverse action and

the protected activity; and (2) assuming Defendant provided legitimate, non-discriminatory

reasons, did Plaintiff present sufficient evidence to establish pretext? The Court will take each of

these in turn.

The question of whether Plaintiff suffered an adverse employment action is governed by

the Supreme Court’s decision in Burlington Northern. According to this case, the antiretaliation

provision of Title VII “extends beyond workplace-related or employment related retaliatory acts

and harm.” Burlington N., 548 U.S. at 67. Phrased another way, “the challenged actions” need not

be “related to the terms or conditions of employment.” Id. at 70. Retaliation actions are not limited

to “ultimate employment decisions” such as “hiring, granting leave, discharging, promoting, and

compensating.” Id. at 60, 67.

Nevertheless, “the antiretaliation provision protects an individual not from all retaliation,

but from retaliation that produces an injury or harm.” Id. at 67. To demonstrate retaliation, “a

plaintiff must show that a reasonable employee would have found the challenged action materially

adverse, which in this context means it well might have ‘dissuaded a reasonable worker from

making or supporting a charge of discrimination.’ ” Id. at 68 (citation omitted).

The standard is “material adversity” because it is “important to separate significant from

trivial harms. Title VII . . . does not set forth ‘a general civility code for the American workplace.’”

Id. (emphasis in original) (internal citations omitted). As Burlington Northern explains:

An employee’s decision to report discriminatory behavior cannot

immunize that employee from those petty slights or minor

annoyances that often take place at work and that all employees

experience. See 1 B. Lindemann & P. Grossman, Employment

Discrimination Law 669 (3d ed. 1996) (noting that “courts have held

that personality conflicts at work that generate antipathy” and

“ ‘snubbing’ by supervisors and co-workers” are not actionable

under § 704(a) ). The antiretaliation provision seeks to prevent

employer interference with “unfettered access” to Title VII’s

remedial mechanisms. [Robinson v. Shell Oil Co., 519 U.S. 337,

346[ ] (1997)] It does so by prohibiting employer actions that are

likely “to deter victims of discrimination from complaining to the

EEOC,” the courts, and their employers. Ibid. And normally petty

slights, minor annoyances, and simple lack of good manners will not

create such deterrence. See 2 EEOC 1998 Manual § 8, p. 8–13.

Id.

The material adversity standard is also that of a “reasonable employee” because “the

provision’s standard for judging harm must be objective. An objective standard is judicially

administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort

to determine a plaintiff's unusual subjective feelings.” Id. at 68–69 (emphasis in original).

The Burlington Northern standard is set forth in “general terms because the significance of

any given act of retaliation will often depend upon the particular circumstances. Context matters.”

Id. at 69. For example, “[a] supervisor’s refusal to invite an employee to lunch is normally trivial,

a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training

lunch that contributes significantly to the employee’s professional advancement might well deter

a reasonable employee from complaining about discrimination.” Id. at 69.

Here, Plaintiff alleges the following adverse employment actions: (1) cutting his hours and

thus affecting his compensation; (2) writing Plaintiff up and accusing him of misconduct; and (3)

either terminating him or, at the very least, disciplining him. The Court will take each of these in

turn.

First, it is clear that, regardless of its characterization, Plaintiff’s suspension or termination

constituted an adverse employment action. See Hypolite v. City of Hous., Tex., 493 F. App’x 597,

607 (5th Cir. 2012) (“[A] temporary suspension without pay is an adverse employment action.”);

Rougeau v. La. Dep’t of Soc. Servs., No. 04-432, 2008 WL 11355054, at *6 (M.D. La. July 10,

2008) (Brady, J.) (“[T]he only acts sufficient to support a Title VII claim are [plaintiff’s]

suspension and subsequent termination.”).

Second, false accusations can constitute adverse employment actions. See Mullinax v. Cook

Sales, Inc., No. 16-92, 2016 WL 6839461, at *3 (S.D. Miss. Nov. 21, 2016) (“Here, Plaintiff

alleged that the written warning was based on false and exaggerated accusations. Accordingly, she

pled sufficient facts to state a colorable retaliation claim arising from the warning.”); Al-habash v.

Raytheon Co., No. 15-450, 2016 WL 6155601, at *8 (E.D. Tex. Oct. 24, 2016) (finding that

magistrate judge correctly recommended that prima facie case for retaliation was met because

“colorable grounds for Plaintiff's [performance improvement plan] did not exist when Plaintiff

received ‘meets expectations’ ratings in those annual reviews prior to his supervisors learning of

his engagement in protected activity”); cf. Jackson v. Honeywell Int’l, Inc., 601 F. App’x 280, 286

(5th Cir. 2015) (“[W]ritten warnings and unfavorable performance reviews are not adverse

employment actions where colorable grounds exist for disciplinary action . . . .”); Melancon v.

Lafayette Gen. Med. Ctr., Inc., No. 22-30704, 2023 WL 6621679, at *3 (5th Cir. Oct. 11, 2023)

(rejecting retaliation claim in part because plaintiff did “not allege that the accusations [were]

untrue, exaggerated, or taken out of context”).

However, write ups alone do not rise to the level of an adverse employment action. As the

Court in Melancon found:

Although the July 2021 reprimand states that “[a]ny future

infractions may result in further disciplinary action up to and/or

including termination of employment,” [the plaintiff employee] has

not alleged that the report itself gave rise to negative employment

consequences. See, e.g., Thibodeaux-Woody v. Houston Comm.

College, 593 F. App’x 280, 286 (5th Cir. 2014) (citing Hernandez

v. Johnson, 514 F. App’x 492, 499 (5th Cir. 2013)) (holding that an

inconsequential reprimand, without more, does not constitute an

adverse employment action); DeHart v. Baker Hughes Oilfield

Operations, Inc., 214 F. App’x 437, 442 (5th Cir. 2007) (a single

written warning, without evidence of consequences, is insufficient

under Burlington Northern).

Melancon, 2023 WL 6621679, at *3. See also Rougeau, 2008 WL 11355054, at *5 (“Indeed if

every unfavorable performance review or reprimand constituted a material adverse employment

action under Title VII, courts and administrative bodies would become unfettered arbiters of Title

VII’s remedial mechanisms.”).

The Court finds Melancon persuasive. Because Plaintiff does not allege any consequences

flowing from his write ups or the false accusations against him, the Court finds that a reasonable

juror could not conclude that either action rises to the level of an adverse employment action under

Burlington Northern. These retaliation claims will thus be dismissed.

Third, the Court already found sufficient evidence that there was a question of fact on

whether Plaintiff’s hours were in fact cut. The Court finds that these actions might dissuade a

worker from making a charge of discrimination. See Eure v. Sage Corp., 61 F. Supp. 3d 651, 666

(W.D. Tex. 2014) (“Because a reduction in hours—and, consequently, the reduction in associated

income—could dissuade a reasonable employee from making or supporting a charge of

discrimination, a reduction in hours can be an adverse employment action in the retaliation

context.” (citing Badii v. Rick’s Cabaret Intern., Inc., No. 12–4541, 2014 WL 550593, at *17 (N.D.

Tex. Feb. 11, 2014) (finding that shift reduction can be an adverse employment action in the

retaliation context); McNairy v. Chickasaw Cnty., Miss., No. 09–59, 2010 WL 3813612, at *4

(N.D. Miss. Sept. 22, 2010) (finding that a reduction in hours constituted an adverse employment

action for retaliation); Harris v. Fresenius Med. Care, No, 04–4807, 2006 WL 2065313, at *19

(S.D. Tex. July 24, 2006) (finding that hours reduction could be an adverse employment action for

retaliation purposes, but was not because the employer provided a legitimate, non-discriminatory

reason for that reduction))); Green v. Tri-Con, Inc., No. 21-481, 2023 WL 9185691, at *11 (E.D.

Tex. Oct. 17, 2023), report and recommendation adopted, 2024 WL 95350 (E.D. Tex. Jan. 9,

2024) (“A reduction in hours is an ‘adverse employment action’ for retaliation purposes.” (citing

Eure, 61 F. Supp. 3d at 666)). Thus, Plaintiff met his burden on this issue.

“At the prima facie stage, ‘the standard for satisfying the causation element is ‘much less

stringent’ than a ‘but for’ causation standard.’ Nevertheless, the plaintiff must produce some

evidence of a causal link between the protected activity and the adverse employment action to

establish a prima facie case of retaliation.” Eure, 339 F. Supp. 3d at 385 (quoting Ackel v. Nat’l

Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003)). “[T]he mere fact that some adverse action is

taken after an employee engages in some protected activity will not always be enough for a prima

facie case.” Owens v. Circassia Pharms., Inc., 33 F.4th 814, 835 (5th Cir. 2022) (quoting Swanson

v. GSA, 110 F.3d 1180, 1188 n.3 (5th Cir. 1997)). “Nevertheless, ‘[c]lose timing’ between the

protected activity and adverse action can establish the causal link required to assert a prima facie

case.” Id. (quoting Swanson, 110 F.3d at 1188). See id. (“An interval of weeks between [plaintiff’s]

complaints and her termination is certainly close timing, so we agree with the district court and

hold that [plaintiff] has established a prima facie case.”). As this court has explained:

For example, in Garcia, the Fifth Circuit found that the plaintiff

established the causation prong for purposes of his prima facie case

based solely on the two-and-a-half-month gap in time between the

protected activity and adverse action. [See Garcia v. Pro. Cont.

Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019)]. In determining

whether this temporal proximity was close enough to establish a

causal connection, the Fifth Circuit explained:

This court has previously held that a period of two

months is close enough to show a causal connection.

Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987,

994–95 (5th Cir. 2005). We have even suggested that

four months is close enough. Evans v. Cty. Of

Houston, 246 F.3d 344, 354 (5th Cir. 2001). The

Supreme Court has since approvingly cited a case

that held three months was insufficient to show

causation. See Clark Cty. Sch. Dist. v. Breeden, 532

U.S. 268, 273–74 [ ] (2001). But Garcia’s two-and-

one-half-month period still fits comfortably within

the time periods of both our case law and Breeden to

establish causation. . . .

Id. Yet, in a different case, the Fifth Circuit concluded that “two and

one-half months between the protected activity and the adverse

employment decision, standing alone, [was] not within the ‘very

close’ proximity that is necessary to establish causation.” Besser v.

Tex. Gen. Land Off., 834 F. App’x 876, 885 (5th Cir. 2020).

Henderson v. Bd. of Supervisors of S. Univ. & A&M Coll., 663 F. Supp. 3d 542, 568 (M.D. La.

2023) (deGravelles, J.)

As in Henderson, the Court need not determine whether a two and one-half month gap is

sufficiently close. Id. Here, Moore complained about racial harassment around August 13, 2017.

(Moore Dep. 116–18, Doc. 35-3 at 89–91.) But Moore was consistently unable to name when his

hours first began to be cut. (See id. at 82–83, Doc. 35-3 at 55–56 (stating, when asked “When were

your hours cut?,” “I can’t remember exactly what date,” and then not answering what year it

occurred in); id. at 99–100, Doc. 35-3 at 72–73 (saying he couldn’t remember when he became a

swing driver but then saying it “had to be 2020, 2019); id. at 103–06, Doc. 35-3 at 76–79

(complaining of hours lost in 2020); id. at 108, Doc. 35-3 at 81 (“hav[ing] no idea” when Addison

asked him to be on the ride-out team); id. at 119–20, Doc. 35-3 at 92–93 (stating that sometime

after the August 2017 meeting he started complaining that his hours were cut, but testifying that

he “[couldn’t] remember specific dates,” and being unable to answer whether this occurred

“weeks? Months? Years?” after the August 2017 meeting). Consequently, Plaintiff has failed to

show a close timing between the initial complaint of discrimination in August 2017 and the May

2020 meeting, and thus Plaintiff’s retaliation claim related to his reduced hours will be dismissed.

See Besser, 834 F. App’x at 885; Santhuff v. United Parcel Serv., Inc., No. 17-1404, 2019 WL

4545610, at *24 (M.D. La. Sept. 19, 2019) (deGravelles, J.) (finding that the “two-year period”

between the plaintiff's complaints and his subsequent discipline was “well beyond the four-month

period” by the Fifth Circuit’s suggested upper limit).

This leaves only the alleged termination or suspension without pay. Plaintiff filed the

instant lawsuit in December 2021, (Doc. 1), and, on January 3, 2022, Excel was formally served

with the summons and Complaint, (Doc. 35-26 at 2.) On or around January 11, 2022, eight days

after Excel was served with Moore’s lawsuit, Excel VP Shaun Dunn called Moore and told him

not to return to work until Moore heard back from him. (DRSIMF ¶ 117, Doc. 44-2.) Thus, Plaintiff

has met his prima facie burden of showing a causal connection between the retaliatory termination

or suspension and the protected activity of filing suit.

Plaintiff contends that Defendant has failed to meet its burden in offering a legitimate, non-

discriminatory reason for the termination/suspension, but the Court disagrees. “If the plaintiff

makes a prima facie showing, the burden then shifts to the employer to articulate a legitimate,

nondiscriminatory or nonretaliatory reason for its employment action. The employer's burden is

only one of production, not persuasion, and involves no credibility assessment.” McCoy v. City of

Shreveport, 492 F.3d 551, 557 (5th Cir. 2007) (citations omitted), abrogated on other grounds by

Hamilton v. Dallas Cnty., 79 F.4th 494 (5th Cir. 2023).

Here, Excel has submitted evidence that Plaintiff was suspended without pay because of

the product spill. (Moore Dep. 48–51, Doc. 26-3 at 27–30; Dunn Dep. 162–63, Doc. 26-12 at 29–

30.) Regardless of whether this was in good faith or not, the Court finds that Excel has met its

burden of production to provide a legitimate, non-discriminatory reason, so the Court will move

on to the question of pretext.

“The ultimate determination in an unlawful retaliation case is whether the conduct

protected by Title VII was a ‘but for’ cause of the adverse employment decision.” Saketkoo v.

Administrators of Tulane Educ. Fund, 31 F.4th 990, 1001 (5th Cir. 2022) (quoting Long, 88 F.3d

at 305 n.4); see also Owens, 33 F.4th at 835. “Because [Defendant has] carried [its] burden of

production, this court turns to whether [Moore] can prove [his] claim according to traditional

principles of ‘but for’ causation and carry [his] burden of demonstrating that [Defendant’s]

proffered non-discriminatory reason is pretextual.” Saketkoo, 31 F.4th at 1002.

An employee can establish pretext in the context of retaliation by

showing that a discriminatory motive more likely motivated her

employer’s decision. In order to survive a motion for summary

judgment, the plaintiff must show a conflict in substantial evidence

on this issue. At this juncture, we consider numerous factors,

including the strength of the plaintiff’s prima facie case, the

probative value of the proof that the employer’s explanation is false,

and any other evidence that supports the employer’s case and that

properly may be considered.

There will be cases where a plaintiff has [ ] established a prima facie

case . . . yet no rational factfinder could conclude that the action was

discriminatory.

Id. (cleaned up).

This inquiry requires a greater showing than mere causal

connection. It requires that the plaintiff show that protected conduct

was the reason for the adverse action. In other words, even if a

plaintiff’s protected conduct is a substantial element in a defendant’s

decision to terminate an employee, no liability for unlawful

retaliation arises if the employee would have been terminated even

in the absence of the protected conduct. Plaintiffs may combine

suspicious timing with other significant evidence of pretext to

survive summary judgment . . . .

Owens, 33 F.4th at 835 (cleaned up).

“[A] lack of contemporaneous documentation, alone, is not evidence of pretext; the

employee must also demonstrate why the absence of documentation matters. Otherwise, there

would be no basis upon which a jury could infer pretext.” Burton v. Freescale Semiconductor,

Inc., 798 F.3d 222, 240 (5th Cir. 2015). Thus, for instance, in Burton, the Fifth Circuit concluded:

Here, the lack of documentation matters because the defendants

charge Burton with a “history of performance problems” but can

show only a pair of dated, neutral performance reviews, a single

mistake, and (maybe) unauthorized use of the Internet. Their attempt

to buttress the charge by compiling documentation after the fact only

highlights the relevance of the absent documentation.

Id.

Likewise, “[a] plaintiff can also show pretext by showing a departure from standard

procedure. But mere deviations from policy, or a disagreement about how to apply company

policy, do not show pretext.” McMichael v. Transocean Offshore Deepwater Drilling, Inc., 934

F.3d 447, 459–60 (5th Cir. 2019) (applying in context of ADEA) (citing Campbell v. Zayo Grp.,

L.L.C., 656 F. App’x 711, 715 (5th Cir. 2016) (per curiam) (unpublished) (holding that “mere

disagreement with [the employer's] application of the [reduction-in-force] policy, without more,

does not provide substantial evidence of pretext”); “Even if a plaintiff can show that an employer

consciously disregarded its own hiring system, that showing, on its own, does not conclusively

establish that . . . a nondiscriminatory explanation for an action is pretextual.” Brown v. San

Antonio Food Bank, No. 23-50564, 2024 WL 1300286, at *5 n.26 (5th Cir. Mar. 27, 2024). The

key is whether Excel was “willing to deviate from established procedures in order to accomplish

a discriminatory goal.” Id. at *5 (citation omitted) .

Having carefully considered the matter, the Court finds that Plaintiff has satisfied his

burden of showing pretext. First, as explained earlier, there was extremely close timing between

the suspension or termination and the protected activity of filing suit and Defendant being served

with it. (See DRSIMF ¶ 117, Doc. 44-2.) Moreover, Plaintiff amended his complaint on February

10, 2022, (Id. ¶ 123, Doc. 44-2), and only on the following day did Excel inform Plaintiff that he

could return to work, (see id. ¶ 124.) Again, “Plaintiffs may combine suspicious timing with other

significant evidence of pretext to survive summary judgment. . . .”Owens, 33 F.4th at 835 (cleaned

up).

The Court finds that Plaintiff has met his burden of providing significant evidence of

pretext to show that a discriminatory motive more likely motivated Excel’s decision and that

retaliation was the reason for the adverse action. Again, on February 10, 2022, Mr. Moore filed an

Amended Complaint to his lawsuit, alleging that Excel had terminated his employment in

retaliation for filing the lawsuit. (DRSIMF ¶ 123, Doc. 44-2.) On February 11, 2022, Moore

received a text from VP Dunn stating:

We have completed our investigation into your conduct on 1/9/2022

when you failed to follow establish procedures and close the dump

valve on the Ore trailer after unloading product at La. Pigment Silo.

Your misconduct resulted in a substantial product spill. Instead of

immediately reporting the accident, you used a Skid Steer loader in

an attempt to clean and cover up the accident, although you are

neither authorized nor trained to operate that piece of equipment.

We have determined that you engaged in serious violations of

Excel’s procedures and safety guidelines. The Company had

decided that you will be suspended without pay for three (3) weeks

(2/19/2022 to 3/9/2022) and you will be issued a final written

warning. Please advise immediately if you intend to return to work,

but no later than Monday, February 21, 2022. If I do not hear from

you by then, we will consider that you have voluntarily resigned

your employment with Excel.

(See DRSIMF ¶ 124, Doc. 44-2; Doc. 35-29.)

However, Plaintiff points to substantial evidence demonstrating that this text message and

the proffered reasons it offers are not worthy of credence. First, Plaintiff creates doubt about

whether the incident in question was indeed a “substantial product spill.” Lout testified there was

no personal injury or property damage associated with the spill. (Lout Dep. 63–64, 67, Doc. 35-9

at 35–36, 39.) Consequently, he did not recall any specific conversations with the Safety Manager

about the spill. (Id. at 67, Doc. 35-9 at 39.) Further, Lout did not review the incident report until

after Moore was no longer employed with Excel. (Id. at 63, Doc. 35-9 at 35.) Reed testified that

he had no conversations with anyone about the cause of the spill, and he only spoke to the Project

Manager and one other about the extent of the damage. (Reed Dep. 174, 198, Doc. 35-4 at 77, 90.)

Doug Stephson, Excel’s Safety Manager, testified that no one conducted an investigation with

respect to the spill. (Stephson Dep. 73–74, Doc. 35-27 at 38–39.) Moreover, according to Stephson,

no one completed a report with respect to the spill or Moore’s use of the skid steer. (Id.) Stephson

also testified there was no physical injury or property damage. (Id. at 72, Doc. 35-27 at 37.) A

reasonable juror could conclude from all of this evidence that the spill in question was in fact minor

and not worthy of discipline.

Second, Plaintiff pokes substantial holes in Dunn’s next statement: “Instead of immediately

reporting the accident, you used a Skid Steer loader in an attempt to clean and cover up the

accident, although you are neither authorized nor trained to operate that piece of equipment.”

(DRSIMF ¶ 124, Doc. 44-2.).According to Moore, after the spill, Moore immediately called Reed,

and Reed told Moore to “[g]et the skid steer and get what you can get up,” so Moore got the skid

steer with the help of a shift supervisor and scraped up the oil and pushed it to the side. (Moore

Dep. 59–61, Doc. 35-3 at 38–40.)

Excel employees contradict this testimony, but not completely. Reed said that Moore called

him, but Reed denied telling Moore to use the skid skeer; according to Reed, Moore told Reed that

he would do so. (Reed Dep. 111, 155 Doc. 35-4 at 51, 63.) Reed and Dunn both testified that the

normal procedure for using the skid steer is to notify the plant, and the plant tells the people

whether they need to do something, (id. at 155, Doc. 35-3 at 63; see also Dunn Dep. 118–19, Doc.

35-23 at 63), but Stephson was not aware of a particular protocol used by Excel employees seeking

permission to use the equipment. (Stephson Dep. 66–67, Doc. 35-27 at 31–32.)

There is also a lack of documentation with respect to the spill cleanup. Stephson testified

that no one completed a report concerning the spill or Moore’s use of the skid steer. (Stephson

Dep. 73–74, Doc. 35-27 at 38–39.) Stephson also stated that, though he recorded in his report that

no one gave Moore permission to use the skid steer to clean up the spill, he got that information

from Reed, who talked to one of the supervisors; but Stephson did not speak with the supervisor

and was not aware of any documentation between Reed and the Louisiana Pigment supervisor

regarding the clean up. (Id. at 66, Doc. 35-27 at 31.) There is also no documentation about someone

from Louisiana Pigment complaining to Excel about Moore’s use of the skid steer, even though

that would have been documented. (Id. at 67, Doc. 35-27 at 32.) Meanwhile, Reed testified that no

one documented the cleanup, though only because “[n]obody knew anything about it.” (Reed Dep.

183, Doc. 35-4.) Reed did not speak to anyone at Louisiana Pigment who witnessed these events,

and he did not speak to the Weight Master. (Id.) And here the lack of documentation is critical; it

provides additional support for Plaintiff’s theory that the real reason for his termination or

suspension, was not the spill, but rather unlawful retaliation.

There are also questions of fact as to Dunn’s claim that Moore tried to “cover up the

accident.” Dunn intended the phrase “cover up the accident” in his text message to mean that

Moore tried to clean the spill in an attempt to hide the spill, even though he admits that there is no

documentation of Moore attempting to hide the spill, and even though Reed testified that Moore

called him and told him he used the skid-steer to clean up the spill. (See DRSIMF ¶ 125, Doc. 44-

2; Dunn Dep. 153–56, Doc. 35-23 at 86–89; see also Reed Dep. 111, 155 Doc. 35-4 at 51, 63

(testifying that Moore told him he would use the skid steer to clean up the spill).) And, as said

earlier, Moore testified that, after the spill, Moore immediately called Reed, and Reed told Moore

to clean it up. (Moore Dep. 59–61, Doc. 35-3 at 38–40.) All of these facts further show why

summary judgment is inappropriate.

Additionally, Plaintiff shows discrepancies in Dunn’s claim that Moore was not certified

to operate the skid steer. To the contrary, Dunn also admitted that he is not aware of Moore’s

training certifications and that the statement in his text that Moore is not “trained to operate” a skid

steer is based solely on what Moore was hired by Excel to do. (DRSIMF ¶ 126, Doc. 44-2.) In fact,

Moore testified that he was certified to operate the skid steer. (Moore Dep. 23, Doc. 35-3 at 14.)

Moore also submits evidence that he was certified by Excel to operate a Rubber Crawler at

Louisiana Pigment, which Addison testified was probably the same certification as a skid steer.

(Doc. 35-31 (certification); Addison Dep. 17–18, Doc. 35-5 at 11–12.) Stephson likewise testified

that the rubber crawler had the same type of steering mechanism as the skid steer. (Stephson Dep.

20–22, Doc. 35-27 at 11–13.) Again, these are questions of fact on whether Dunn’s text was the

real reason for the suspension or termination.

Third, Plaintiff attacks the text message’s statement that “We have determined that you

engaged in serious violations of Excel’s procedures and safety guidelines,” as (a) there are

questions of fact about whether the violations were serious and (b) there are irregularities in the

Excel’s process in reaching that conclusion. On January 10, 2022, Mark Reed and then Excel

Safety Manager Doug Stephson completed an investigation report, determining that the cause of

the spill was “human error.” Reed did not think that an indication of a “procedure violation” would

have been accurate. (DRSIMF ¶ 109, Doc. 44-2.) The field for “corrective action” was left blank

because Reed understood that Excel’s higher-ups would make such decision. (Id. ¶ 110) After

completing all other fields on the investigation report with Stephson on January 10, 2022, Reed

had no involvement in the investigation and spoke with no one, other than Stephson, about the

finding that the cause of the spill was “human error.” (Id.) Project Manager Lout determined that

there was no need for anything other than a “standard investigation” since the cause of the incident

was “pretty straight forward.” Lout could not imagine that there “would have been too much to

do.” (Id. ¶ 111.) According to Lout, “disciplinary leave,” as opposed to standard leave, would not

be required for Mr. Moore pending the investigation into the spill. (Id. ¶ 112.)

Thus, Plaintiff presents evidence that (1) serious discipline would not be needed for this

relatively minor spill, and (2) though Excel claimed it needed more time for its executives to

determine what corrective action was needed, the investigators had already determined the cause

of the incident. All of this strikes the Court has highly irregular, and a reasonable jury could reach

the same conclusion.

Other irregularities exist with the investigation. Moore also testified that he was told by

Reed to write his statement of what happened (i.e., that the zip tie on the valve came out because

of bumps in the road). (Moore Dep. 53–54, Doc. 35-3 at 32–33.) Reed told Moore it was “highly

impossible,” even though it had happened several times with other drivers and Moore. (Id.) Moore

finally said, “Well, okay. Maybe I forgot to close the valve,” and Reed told him to write that down,

which he did. (Id.) A reasonable jury could thus conclude that Moore was strong-armed into

admitting to something he did not do, precisely because he filed suit.

Yet another irregularity lies with the shoddiness of the investigation. The report stated that

Moore called Reed an hour after the incident after another employee advised him to do so, but

Stephson said he did not speak with Moore about this; rather, Stephson got the information from

John Deshotel (the other employee) and Reed. (Stephson Dep. 53–55, Doc. 35–27 at 24–26.)

Stephson also didn’t recall the basis for saying in the report that Moore was not certified; Reed

talked to Moore about it, but Stephson said was “just speculation.” (id. at 64, Doc. 35-27 at 29.)

Likewise, his sole basis for writing that Moore operated the skid steer was Reed. (Id. at 65, Doc.

35-27 at 30.) Stephson also did not speak directly with the Louisiana Pigment Supervisor allegedly

involved in the cleanup and did not have documentation for that finding. (Id. at 65–66, Doc. 35-

27 at 30–31.) A reasonable jury could conclude that the investigation was so shoddy precisely

because it was pretextual.

Further irregularities abound. VP Dunn called Moore and told him not to return to work

until Moore heard back from him on January 11, 2022, eight days after Excel was served with

Moore’s lawsuit and one day after Stephson’s report was completed. (DRSIMF ¶ 117, Doc. 44-2.)

On or around January 12, 2022, because he was not getting paid, Moore texted Mark Reed to ask

if he could use vacation time to make up for time lost while he was out of work. (Id. ¶ 118.) Reed

responded affirmatively. (Id.) In response to Mr. Moore’s asking Reed for information as to how

long he would have to wait before returning to work, Reed informed him that Moore would have

to hear back from VP Dunn with approval to come back before returning to work at Excel. (Id.)

Reed never discussed the investigation report with Lout or Dunn, nor did he hear from Excel

management what the status of Moore’s employment was, or what corrective action Excel planned

to take. (Id. ¶ 119.)

It is critical here to note two things. For one, Dunn testified that no information was

collected after a January 11, 2022, mechanics report was issued. (Dunn Dep. 145–46, Doc. 35-23

at 78–79.) Dunn didn’t know whether anything had been documented concerning the investigation

after this mechanics report, though he did say there remained statements to be taken. (Id. at 174–

83, Doc. 35-23 at 107–116.) Stephson likewise testified that he did not recall any discussion of

undetermined questions, undetermined causes, or potential causes of the incident in question after

the January 11, 2022, mechanics report. (Stephson Dep. 83–84, Doc. 35-27 at 42–43.) Defendant

disputes this and argues that the investigation continued, but this highlights questions of fact. The

bottom line is that a reasonable jury could conclude from this lack of further investigation that the

point of the suspension was not to inquire further into the causes of the incident but rather to punish

Plaintiff for filing suit.

The second important point here is that, according to Dunn, he alone made the decision to

suspend Moore without pay, after consulting with other management and General Counsel Cherie

Pinac. (DRSIMF ¶ 132, Doc. 44-2.) Dunn does not recall when he made the decision, and the

decision is not documented, despite Dunn’s acknowledgment that disciplinary suspensions require

documentation, and despite Safety Manager Stephson’s admission that the investigation report was

never finalized. (Id.) Additionally, Dunn made this decision even though, typically, when an

employee below a superintendent level needed to be hired or fired, such discipline would be

handled by Mark Reed and Lout. (Lout Dep. 25–27, Doc. 35-9 at 6–8.) Normally, that process

would not involve Shawn Dunn. (Id.) According to Lout, Dunn did not speak with him concerning

the incident, the investigation, or Mr. Moore’s employment status. (DRSIMF ¶ 135, Doc. 44-2.)

Finally, at no point did Lout receive a communication concerning any request by Excel’s client

Louisiana Pigment to remove Mr. Moore from the job site. (Id. ¶ 114.) Although such a request

must be documented, Lout is not aware of any documentation of any such request. (Id.) Thus,

again, the irregularities involved in the procedure—including those concerning the lack of

documentation, who made the decision, and the lack of consultation with those typically in charge

of making the decision—provide further support for the conclusion that Moore’s suspension or

termination was pretextual.

Another substantial conflict of evidence involves Excel’s alleged efforts to allow Moore to

return to work. Dunn claims that he initiated a phone conversation with Chris Jennings of

Louisiana Pigment to seek his approval to bring Mr. Moore back to the jobsite after the incident

because the main issue regarding the incident, according to Dunn, was that Mr. Moore used the

skid steer without obtaining authorization to do so. (Id.¶ 127.) Dunn does not recall when his

conversation with Chris Jennings took place but claims that the conversation happened more than

a week after the January 9, 2022, incident because of difficulty ascertaining who in Louisiana

Pigment would have authority to approve of Moore’s return. (Id. ¶ 128.) Dunn stated that he had

only one conversation with Jennings, and that no one other than he and Jennings were parties to

the conversation. (Id.) Dunn claims that Jennings gave his approval to have Mr. Moore return to

the jobsite, and that that was “the last thing [Excel] was waiting on to okay Mr. Moore to return to

work,” even though the investigation was complete by that point. (Id.) Dunn did not document this

conversation and is otherwise unaware of any documentation of this conversation. (Id ¶ 129.)

Conversely, Chris Jennings, who oversees Neutralization and Utilities Operations of

Louisiana Pigment, denies having any conversations with Shaun Dunn and does not know who

Shaun Dunn is. (Id. ¶ 130.) He is unaware of Louisiana Pigment having any involvement in having

Moore removed from the jobsite or in having Moore returned to the jobsite. (Id.) He is altogether

unaware of any instance where Excel sought approval from Louisiana Pigment to return an Excel

employee to the jobsite. (Id.) He recalls learning of Mr. Moore’s separation from Excel through

Mark Reed only recently and did not know that Mr. Moore had been removed from the jobsite.

(Id.) Indeed, no one from Louisiana Pigment reached out to Dunn regarding Moore at any point,

and Dunn is not aware of any documented concern of Louisiana Pigment concerning Moore. (Id.¶

131.) The dramatic discrepancy between Dunn and Jennings’ testimonies on this point cast further

doubt on Dunn’s proffered reasons for the suspension and termination.

Finally, the second text Dunn sent to Moore is further support for pretext. Specifically, on

February 16, 2022, Mr. Moore received a nearly identical text to the one he received on February

11, 2022, from VP Dunn, except the new text contained corrected dates for the period of Mr.

Moore’s “suspension.” (DRSIMF ¶ 134, Doc. 44-2.) The new text stated,

We have completed our investigation into your conduct on 1/9/2022

when you failed to follow establish procedures and close the dump

valve on the Ore trailer after unloading product at La. Pigment Silo.

Your misconduct resulted in a substantial product spill. Instead of

immediately reporting the accident, you used a Skid Steer loader in

an attempt to clean and cover up the accident, although you are

neither authorized nor trained to operate that piece of equipment.

We have determined that you engaged in serious violations of

Excel’s procedures and safety guidelines. The Company had

decided that you will be suspended without pay for three (3) weeks

(1/19/2022 to 2/9/2022) and you will be issued a final written

warning. Please advise immediately if you intend to return to work,

but no later than Monday, February 21, 2022. If I do not hear from

you by then, we will consider that you have voluntarily resigned

your employment with Excel.

(Id.) The revision creates further irregularities in an already irregular process, and a reasonable

jury could conclude that Excel was using this to support their backstory and to hide their retaliation.

In sum, when construing the evidence in a light most favorable to Plaintiff and drawing

reasonable inferences in his favor, a reasonable jury could easily conclude that unlawful retaliation

was the cause of Plaintiff’s suspension or termination. A reasonable factfinder could also find from

the above evidence (1) that Excel was “willing to deviate from established procedures in order to

accomplish a discriminatory goal,” cf. Brown, 2024 WL 1300286, at *5 n.26; (2) that there was a

lack of documentation, and that this absence “matters” because there is a “basis upon which a jury

could infer pretext,” Burton, 798 F.3d at 240; and (3) that this significant evidence coincided with

highly suspicious timing between the protected activity of filing suit and the adverse action.

Finally, all of the evidence highlighted above (particularly Defendant’s silence during the alleged

suspension) demonstrates questions of material fact on whether the Plaintiff was suspended or

terminated. Consequently, Defendant’s motion for summary judgment on this issue will be denied.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that the Motion for Summary Judgment (Doc. 26) by Defendant Excel

Contractors, LLC, is GRANTED IN PART and DENIED IN PART. The motion is GRANTED

in that all claims of retaliation, except for those arising from Moore’s filing of the instant lawsuit,

are DISMISSED WITH PREJUDICE. In all other respects—and in particular with respect to

Plaintiff’s harassment claim and his claim he was retaliated against by being suspended or

terminated—the motion is DENIED.

Signed in Baton Rouge, Louisiana, on June 3, 2024.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA