Walker v. Energy Transfer Partners L L C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

KEVIN WALKER CIVIL ACTION NO. 5:18-CV-0630

VERSUS JUDGE ELIZABETH ERNY FOOTE

ENERGY TRANSFER MAGISTRATE JUDGE HAYES

PARTNER, LLC

MEMORANDUM RULING

Before the Court is Defendant’s motion for summary judgment. [Record Document 15].

Plaintiff opposed the motion and Defendant filed a reply. [Record Documents 17-1 and 20].

Plaintiff also filed a motion to strike evidence submitted to support Defendant’s motion for

summaty judgment. [Record Document 18]. Defendant opposed the motion. [Record

Document 21]. For the reasons stated herein, Defendant’s motion for summary judgment is

GRANTED. Plaintiffs motion to strike is DENIED.

BACKGROUND

Defendant Energy Technology Partners, LLC (“ETP”) owns and operates a variety of

“energy assets,’ one of which is the Dubberly Plant in Dubberly, Louisiana. [Record Document

17-2 at 1]. Plaintiff Kevin Walker (“Walker”) began his employment at the Dubberly Plant in

July 2016 as an “Operator “B”’ whose job description included operating and maintaining plant

equipment and working with the “Plant Control room operating system.” [Record Documents

15-5 at 9 and 17-2 at 4]. Starting in September 2016, Plaintiff began working twelve-hour shifts

with Joshua Starkey (“Starkey”). [Record Document 17-2 at 7-8].

According to ETP, on January 20, 2017, Starkey reported to his and Walket’s supervisor,

James McClain (“McClain”), that Walker consistently slept during night shifts, sometimes for

more than six hours of the shift. [Record Documents 15-8 at 4-5 and 17-2 at 6]. He informed

McClain that during their January 19, 2017 shift together, Walker slept and refused to help

despite the pair being particularly busy and experiencing issues with the plant. [Record

Document 15-8 at 3-4]. McClain asked Starkey to submit a written summary of these incidents

during his next scheduled shift, which Starkey did on January 24, 2017. [Record Documents 15-

8 at 5 and 15-4 at 3]. Attached to the summary were two pictures of Walker sleeping, taken in

September and November of 2016, and a screenshot of a video portraying the same, taken in

October 2016. [Record Document 15-8 at 2-3, 5, 7-10]. McClain supplemented Starkey’s

handwritten summary with information Starkey verbally told him on January 20, 2017, asked

Starkey to verify its accuracy, and typed Starkey’s handwritten report at the bottom of the page.

[Record Documents 15-5 at 4 and 15-8 at 5, 10].

On the morning of Januaty 24, 2017, before Starkey wrote the summary, Walker

reported to work and requested leave for personal reasons. [Record Document 17-2 at 13-14].

McClain approved this without determining whether the leave would be protected by the Family

Medical Leave Act (“FMLA”) and reported the leave to his supervisor, Todd McKee

(“McKee”). [Record Documents 15-5 at 3-4, 15-6 at 1, and 17-5 at 15-16]. McClain later emailed

Starkey’s written report and images to McKee, who subsequently passed the information along

to Human Resources Manager DeeDee Miller (“Miller”). [Record Documents 15-5 at 4, 15-6 at

2]. According to McKee, he “immediately determined that ETP could not have an employee

sleeping on the job,” but delayed addressing the issue until Walker returned from leave on advice

ftom Miller and the Senior Director of Human Resources, Erica Brandt (“Brandt”). [Record

Document 15-6 at 2].

Walker disputes several of the aforementioned facts. According to Walker, he reported

to McClain in September 2016 that other employees, including Starkey, were sleeping at work.

[Record Document 17-4 at 18-19, 37-38]. All parties agree that no action was taken against any

of these employees, though McClain denies teceiving such reports. [Record Documents 15-5 at

6-7 and 17-2 at 22-23]. Walker denies ever sleeping at work. [Record Document 17-4 at 32-33].

He also notes that Starkey was unsute of whether McClain asked him to produce a written

summary of his report on January 20 or after Walker requested leave on Januaty 24. [Record

Document 17-7 at 10].

It is undisputed that ETP’s third-party administrator in charge of FMLA leave, Hartford,

approved Walker for FMLA leave from Januaty 29, 2017 to March 12, 2017. [Record Document

15-7 at 5, 17-2 at 16-17]. While on leave, Walker received FMLA and ETP Short-Term Disability

Benefits. [Record Document 17-2 at 17]. ETP also distributed bonuses to its employees during

this time and Walket’s bonus was reduced by $1,000. [Record Document 17-2 at 17]. According

to ETP, bonus payments are discretionaty, and Walket’s was reduced because he slept on the

job and because of other undocumented performance issues. [Record Documents 15-5 at 4 and

17-2 at 17].

While Walker was still on leave, McKee spoke with Brandt about how to address the

report that Walker slept on the job. [Record Document 15-6 at 3]. She recommended that

Walker be tetminated for violation of ETP’s Workplace Conduct Policy because he “repeatedly

and excessively” slept at work, the pictures demonstrated that this conduct was intentional, and

sleeping on the job posed a safety risk to Walker, his coworkers, and ETP. [Record Document

15-7 at 6]. McKee agreed with Brandt’s recommendation. [Record Document 15-6 at 3]. Both

state that this decision was based solely on Walker’s “performance issues” before he went on

leave. [Record Documents 15-6 at 3-4, 15-7 at 6].

Walker was cleared to retutn to work and did so on Match 13, 2017. [Record Document

17-2 at 17-19]. Upon arriving, he met with McClain and McKee, while Miller participated by

phone. [Record Document 17-2 at 19]. According to McKee, he informed Walker that his

employment was being terminated for sleeping on the job, Walker did not deny this, and in fact

confirmed that he was the individual in the photogtaphs. [Record Document 15-6 at 4].

Accotding to Walker, he was not provided a reason for his termination until he asked for one

and he was never specifically asked if he slept at work. [Record Document 17-4 at 34-36]. He

admits that during the meeting he acknowledged that he was the person pictured in at least one

of the images. [Record Document 17-4 at 35].

Plaintiff received notice of his tight to sue and filed the instant suit alleging that ETP

violated the interference and discrimination clauses of the FMLA, the Ameticans with

Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”). [Record

Documents 1 and 33].

LAW AND ANALYSIS

I. Plaintiff's Motion to Strike

The Court will first address Walker’s motion to sttike. [Record Document 18]. Walker

challenges ETP’s use of three images with Bates numbers RFA002-RFA004 entered in the

tecotd by ETP at Record Documents 15-5 at 11-13, 15-6 at 9-11, 15-7 at 39-41, 15-8 at 7-9, and

15-10 at 15-17. [Record Document 18]. Walker argues that these images are inadmissible as

summary judgment evidence because they lack authentication and, second, are irrelevant.

[Record Document 18-1 at 1-2].

The general authentication requirement is governed by Federal Rule of Evidence 901.

As stated in this rule, “[t]o satisfy the requirement of authenticating or identifying an item of

evidence, the proponent must ptoduce evidence sufficient to support a finding that the item is

what the proponent claims it is.” Fed. R. Evid. 901. The Rule goes on to list several examples

of ways a patty might satisfy this requitement, one being testimony by a witness with knowledge

that the evidence “is what it is claimed to be.” Fed. R. Evid. 901(b)(1).

Defendant submitted several declarations by Starkey and Michael “Adam” Remedies

(“Remedies”) to authenticate the images at issue. Starkey’s declaration individually addresses

each of the images. [Record Document 15-8 at 2-3]. As to the first image,' Starkey states that it

is a “true and cottect copy” of the photogtaph he personally took using his cellphone on

September 12, 2016. [Record Document 15-8 at 2, 5]. He further states that he took the photo

as he was witnessing Walker sleep. [Id] This is sufficient evidence for the Court to conclude

that the image is what ETP claims it to be—a photograph of Walker allegedly sleeping at work

on September 12, 2016.

Starkey’s declaration similarly addresses the third image at issue. Starkey states that on

November 30, 2016, he “witnessed and photogtaphed (on [his] cellphone) Walker asleep” while

at work. [Record Document 15-8 at 3, 7]. He again declares that the photograph, as attached

1 The image is identified in and attached to Starkey’s declaration as Exhibit 5-1. [Record

Document 15-8 at 7].

to his declaration,” is a “true and correct copy” of the photograph he took that night. [Id] This

is sufficient evidence for the Court to conclude that the image is what ETP claims it to be-—a

photograph of Walker allegedly sleeping at work on November 30, 2016.

The second image at issue can be authenticated through a combination of Starkey’s and

Remedies’s declarations. Remedies states that on October 14, 2016, he witnessed and took a

video of Walker sleeping at work. [Record Document 15-9 at 1]. He then sent that video to

Starkey, who was working in another area of the plant that night. [JZ] Starkey states that he

received the video from Remedies that appeared to show Walker sleeping on October 14, 2016

and took a scteenshot of that video using his cellphone. [Record Document 15-8 at 2-3, { 6].

He then confirms that the image? is a “true and correct copy of the screenshot” he took that

night. [Id.] Combined, this is sufficient evidence for the Court to conclude that the image is

what ETP claims it to be—a screenshot from a video of Walker allegedly sleeping at work on

October 14, 2016.

Having concluded that the photographs are properly authenticated, the Court must

address Walket’s relevance objection. Walker asserts that the images ate “irrelevant to the

decision to terminate Plaintiff's employment because, .. . at the time the decision was made to

terminate Plaintiffs employment — it is admitted that the photographs were not dated ot time

stamped and ETP did not know when or why the same had been taken.” [Record Document

18-1 at 2].

2 The image is identified in and attached to Starkey’s declaration as Exhibit 5-3.

[Record Document 15-8 at 9].

3 The image is identified in and attached to Starkey’s declaration as Exhibit 5-2. [Record

Document 15-8 at 8].

Evidence is relevant if it “has any tendency to make a fact mote or less probable than it

would be without the evidence; and the fact is of consequence in determining the action.” Fed.

R. Evid. 401. While Walker may be correct that ETP lacked details and dates about the

photographs at the time it decided to terminate Walker, that does not make the photographs

irrelevant to determining whether ETP had a legitimate reason to terminate Walker’s

employment. Both McClain and McKee saw the images on ot before January 24, 2017, neatly

two months before Walker’s termination. [Record Documents 15-5 at 2-3 and 15-6 at 2]. McKee

states that he relied on what he saw in those pictures when deciding that Walker should be

terminated, [Record Document 15-6 at 3], and thus the images are relevant because they tend

to ptove whether McKee was teasonable to conclude that Walker engaged in the alleged

behavior.

Because the Court concludes that the images in question are both authenticated and

relevant, Plaintiffs motion to sttike [Record Document 18] is DENIED.

II. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) directs a court to “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.”’* Summary judgment is appropriate when the pleadings, answers

to interrogatories, admissions, depositions, and affidavits on file indicate that there is no genuine

4 Rule 56 was amended effective December 1, 2010. Per the comments, the 2010

amendment was intended “to improve the procedures for presenting and deciding summary

judgment motions and to make the procedures more consistent with those already used in many

courts. The standard for granting summaty judgment remains unchanged.” Therefore, the case

law applicable to Rule 56 prior to its amendment remains authoritative, and this Court will rely

on it accordingly.

issue of material fact and that the moving party is entitled to judgment as a matter of law. Celiex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the burden at trial will rest on the non-moving

patty, the moving party need not produce evidence to negate the elements of the non-moving

case; rather, it need only point out the absence of supporting evidence. See id. at 322-23.

If the movant satisfies its initial burden of showing that there is no genuine dispute of

material fact, the nonmovant must demonstrate that there is, in fact, a genuine issue for trial by

going “beyond the pleadings” and “designat[ing] specific facts” for support. Littl v. Liquid Aur

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Celotex, 477 U.S. at 325). “This burden is not

satisfied with some metaphysical doubt as to the material facts,’ by conclusory or

unsubstantiated allegations, or by a mete “scintilla of evidence.” Id (internal quotation marks

and citations omitted). However, “[t]he evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc, 477 U.S. 242,

255 (1985) (citing Adickes v. S. H. Kress C» Co., 398 US. 144, 158-59 (1970)). While not weighing

the evidence or evaluating the credibility of witnesses, courts should grant summary judgment

where the critical evidence in support of the nonmovant is so “weak or tenuous” that it could

not support a judgment in the nonmovant’s favor. Armstrong v. City of Dall. 997 F.2d 62, 67 (Sth

Cir. 1993).

Additionally, Local Rule 56.1 requires the movant to file a statement of material facts as

to which it “contends there is no genuine issue to be tried.” The opposing party must then set

forth a “short and concise statement of the material facts as to which there exists a genuine

issue to be tried.” W.D. La. R. 56.2. All material facts set forth in the movant’s statement “will

be deemed admitted, for purposes of the motion, unless controverted as required by this rule.”

Td.

Ill. Plaintiffs FMLA Interference Claims

Under the FMLA, it is “unlawful for an employer to interfere with, restrain, or deny the

exetcise of or the attempt to exercise, any tight provided under this subchapter.” 29 U.S.C. §

2615(a)(1). To establish a prima facie case under the interference clause, a plaintiff “must show:

(1) he was an eligible employee; (2) his employer was subject to FMLA requirements; (3) he was

entitled to leave; (4) he gave proper notice of his intention to take FMLA leave; and (5) his

employer denied him the benefits to which he was entitled under the FMLA.” DeVoss ». Sw.

Airlines Co., 903 F.3d 487, 490 (5th Cir. 2018) (quoting Caldwell v. KHOU-TV, 850 F.3d 237, 245

(5th Cir. 2017)).

ETP challenges Walker’s ability to establish the last element of his prima facie case—that

ETP denied him any benefits to which he was entitled under the FMLA. [Record Document

15-1 at 10-11]. Walker argues that ETP’s decision to lower his bonus payment while he was out

on FMLA leave and its failure to reinstate him after leave both amount to the denial of benefits

guaranteed to him by the FMLA. [Record Document 17-1 at 17]. Because ETP only challenges

whether Walker was denied a benefit, the Court will consider the other elements of Walker’s

ptima facie claim established.

a. Plaintiffs Bonus Payment

While on leave, Walket’s annual bonus payment was reduced by $1,000. ETP contends

that the bonus payment was reduced because of Walker’s performance issues, including sleeping

on the job. [Record Document 20 at 4].

The FMLA prohibits employers from denying their employees benefits that were

accrued before taking FMLA leave, but it does not entitle an employee to “any right, benefit, or

position of employment other than any right, benefit, or position to which the employee would

have been entitled had the employee not taken the leave.” 29 U.S.C. § 2614(a)(3)(B). Under this

standard, Walker’s bonus reduction was not a denial of any benefit owed to him if it would have

been denied to him had he not taken FMLA leave. Cf Shirley v. Precision Castparts Corp., 726 F.3d

675, 681-82 (5th Cir. 2013) (holding that an employee is not entitled to reinstatement under the

FMLA if the employee was otherwise tetminated for legitimate reasons unrelated to actions

protected by the FMLA). Walker conceded that ETP’s decision to reduce his bonus was based

on his alleged performance issues which occutted before he took FMLA leave. [Record

Document 17-2 at 17]. ETP also presented evidence that it has reduced at least one other

employee’s bonus in the past for performance issues. [Record Document 15-6 at 3]. Walker has

presented no evidence, besides a denial that he slept at work, to suggest that his bonus would

not have been reduced for those same reasons had he not been on FMLA leave when the

bonuses were calculated. Thus, Walker has failed to show that he was denied a benefit to which

he was entitled under the FMLA, and his interference claim based on the reduction of his bonus

is DISMISSED with prejudice.

b. Plaintiffs Termination

Walker also argues that ETP interfered with his right to be reinstated to his position

after his FMLA leave by terminating him the day he returned from leave. [Record Document

17-1 at 17]. The FMLA guarantees employees the right to be restored to the position they held

when the leave commenced. 29 U.S.C. § 2614(a)(1)(A). This tight, however, is not absolute.

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Shirley, 726 F.3d at 681. “[D]enying reinstatement to an employee whose right to restored

employment had already been extinguished—tot legitimate reasons unrelated to his efforts to secute

FMLA leave—does not violate the Act.” Id at 682 (emphasis in original). If the employer

ptesents a legitimate reason for the termination, the employee must present evidence that the

employet’s reason was pretextual. Id at 683.

1. Legitimate Reasons

ETP’s consistently-stated reason for Walker’s termination is sleeping at work prior to

January 20, 2017. [Record Documents 15-6 at 3-4 and 15-7 at 6]. Brandt explains that this is a

violation of the company’s “Workplace Conduct” policy which prohibits “loitering or loafing

during work time.” [Record Document 15-7 at 4, 6, and 30]. The policy further states that

“unacceptable conduct may subject the offender to disciplinary action, up to and including

discharge, in the Company’s sole discretion.” [Recotd Document 15-7 at 30]. ETP has therefore

met its burden of producing a legitimate reason unrelated Walket’s FMLA leave for his

termination.

2. Pretext

The Court must next determine if Walker has created a genuine issue of material fact

televant to whether ETP’s stated reason is pretextual. To demonstrate pretext, a plaintiff must

show that the employet’s proffered reason for the termination is “false or “unworthy of

ctedence.”” DeVoss, 903 F.3d at 492 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 147 (2000)). Pretext must be shown by a preponderance of the evidence. Tatum v. So. Co.

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

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Throughout his brief, Walker raises a variety of arguments and facts that may support a

finding that ETP’s stated reasons are pretextual. Among these ate: the quality of the information

ETP telied on to justify Walker’s termination, McClain’s changing intentions regarding Walker’s

employment status, the timing of Starkey’s and McClain’s production of the written report relied

on in his termination, Walket’s lack of disciplinary history, the treatment of similarly situated

employees, ETP’s failure to follow its own internal policies, and the temporal proximity between

Walker’s termination and his return from FMLA leave. [Record Document 17-1 at 21, 24]. The

Coutt will addtess each of these individually.

i. Quality of Investigation

Walker first aroues that the fact that ETP decisionmakers “had nothing more than

hearsay allegations and uncorroborated pictutes [on which] to base a decision that Walker was

actually ‘sleeping’ on the job” is evidence of pretext. [Record Document 17-1 at 24]. “In cases

in which an employer discharges an employee based on the complaint of another employee, the

issue is not the truth or falsity of the allegation, but ‘whether the employer reasonably believed

the employee’s allegation and acted on it in good faith.” Jackson v. Cal-W. Packaging Corp., 602

F.3d 374, 379 (5th Cir. 2010) (quoting Waggoner v. City of Garland, 987 F.2d 1160, 1165 (5th Cir.

1993)).

The alleged defects in ETP’s evidence do not tise to the level of demonstrating that

ETP’s reliance on Starkey’s report and images was unreasonable. McClain had an employee

come to him with a detailed report of what occurred during the previous night’s shift. [Record

Document 15-8 at 3-5]. The employee supplemented his report with three images that appeared

to show Walker sleeping in at least two different locations in the plant. [Record Document 15-

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8 at 2-3, 5, 7-10]. Of note, even Walker admits that when confronted with the images, he

thought it was “pretty hard to deny” it was him in one of the pictures. [Record Document 17-

4 at 34]. Considered together, it is reasonable for an employer to conclude that a report of an

employee sleeping supported by images of the employee teclined in a chair with his feet on a

desk and eyes closed, lying down actoss two office chairs with his eyes closed, and lying on a

table with a cover over his eyes is a credible report.

ii. McClain’s Changed Intentions

Walker also argues that McClain’s deposition testimony demonstrates that prior to

Walker requesting FMLA leave on January 24, 2017, McClain intended only to discuss Walket’s

performance with him and give him the opportunity to improve. [Record Document 17-1 at

24]. The deposition testimony cited to support Walker’s assertion does not support such a

conclusion, however. [Record Document 17-1 at 24, n.97]. In the cited portion of his

deposition, McClain testified that prior to January 20, 2017 he spoke with his supervisor,

McKee, about Walker’s performance issues and told McKee that he “need[ed] to work with

[Walker].” [Record Document 17-5 at 18]. McClain’s deposition does not clearly state that he

expressed the same intentions to McKee after Starkey’s January 20, 2017 report that Walker was

sleeping on the job. [Record Document 17-5 at 18-20]. This is not sufficient to create a genuine

issue of fact about McClain’s intentions regarding Walker’s continued employment between

January 20, 2017, when Starkey reported Walker, and January 24, 2017, when Walker requested

leave. Furthermore, McClain’s intentions are not clearly relevant when it was McKee, not

McClain, who made the ultimate decision to terminate Walket’s employment, and there is no

evidence that McClain was involved in that decision. [Record Document 17-6 at 13].

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iii. Written Summary Timing

Walker asserts that there are disputed facts remaining about when Starkey verbally

reported Walket’s behavior and when McClain asked Starkey to formally record his report.

[Record Document 17-1 at 21]. He has failed to support either assertion with record evidence.

Both McClain and Starkey testified that Starkey initially reported Walker’s behavior on January

20, 2017 when he was called in on his night off to assist at the plant. [Record Documents 17-5

at 18-19 and 17-7 at 9-10]. Walker presented nothing to dispute this and, thus, there is no

genuine dispute as to when Starkey made the verbal repott.

McClain testified that on the night of January 20, 2017, he asked Starkey to record his

report the next time he worked, which was January 24, 2017. [Record Document 17-5 at

20]. Starkey stated he could not remember if McClain asked him to write it on January 20 or

January 24. [Record Document 17-7 at 10]. This does not create a genuine dispute regarding

this fact, however, because Walker presented no evidence that actually refutes McClain’s

statement that he requested the summary on January 20, 2017. This means that the timing of

when the report was written is not probative of pretext because it was requested prior to what

Walker was allegedly discriminated against for, taking FMLA leave.

iv. Similarly Situated Employees

Walker identifies four other ETP employees that he alleges were similarly situated to him

at ETP yet treated differently—Starkey, Remedies, Jeremy Pearce (“Pearce”), and Steven Stroud

(“Stroud”). [Record Document 17-1 at 13]. He contends that all four men also slept at work

but were not investigated or penalized for the behavior. [Record Document 17-1 at 13-14].

Walker states that he reported in September 2016 to McClain that employees were sleeping.

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[Record Document 17-4 at 16]. McClain and McKee deny receiving such reports or having any

knowledge of other employees sleeping. [Record Documents 15-5 at 6-7 and 15-6 at 5-6].

Walker also argues that, had the men been investigated, they would have admitted to engaging

in identical behavior. [Record Document 17-1 at 20].

“Employees are similarly situated when they ‘held the same job or responsibilities, shared

the same supervisor or had their employment status determined by the same person, and have

essentially compatable violation histories.”” Garcia v. Prof'l Contract Serv’s, Inc., 938 F.3d 236, 244

(5th Cir. 2019) (quoting Lee ws. Ks. City So. Rwy. Co., 574 F.3d 253, 259-60 (5th Cir. 2009)). The

conduct the employer uses as the justification for the employee’s termination must be “nearly

identical” to that of the comparable employee who received a dissimilar employment outcome.

Id. Tf the differences in treatment ate accounted for by differences between the plaintiffs

conduct and the conduct of the allegedly similarly situated employees, then the employees are

not considered similarly situated for purposes of comparison in an employment discrimination

action. Lee, 574 F.3d at 260.

Walker has presented evidence that the identified men had essentially the same job and

shared the same supervisor. [Record Documents 17-7 at 2, 17-8 at 2, 17-9 at 2, and 17-10 at 2].

He has not presented evidence sufficient to conclude that the other men have “essentially

comparable violation histories.” Garda, 938 F.3d at 244.

First, Walket’s deposition failed to specifically identify which men, besides Starkey, he

reported were sleeping at work in September 2016. [Record Document 17-4 at 16]. Without

evidence that Walker reported each of the men, the Court cannot conclude that all of the

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identified men had even one coworker report that they were sleeping at work, which means that

they do not have nearly identical violation histories to Walker’s.

Second, even assuming that he reported all of the aforementioned employees, Walker

has failed to provide evidence that he reported behavior analogous to the behavior for which

he was terminated. Starkey’s report against Walker alleged that Walker would intentionally sleep

as long as six hours of a twelve-hour shift. [Record Document 15-8 at 10]. This is categorically

different than the “dozing” or “napping” that Starkey, Pearce, Stroud, or Remedies admitted to

in their depositions. [Record Documents 17-8 at 3-4, 17-9 at 4-7, and 17-10 at 3-5]. As those

men described it, if they would “sleep” at work, it was unintentional falling asleep or short term

testing of their eyes from looking at computer screens. [Jd] They denied purposefully sleeping

fot multiple hours of their shift. [Jd]

Finally, Walket’s situation varied from that of the other men because ETP had pictures

of Walker’s behavior. Walker does not allege that ETP, faced with multiple images of another

employee sleeping, ignored such a report. Any differential treatment Walker received is

therefore accounted for by the difference in his conduct and the proof with which ETP was

presented.

Walket also argues that the fact that Remedies and Starkey were not punished for

violating ETP’s pictute policy is evidence of pretext. [Record Document 17-1 at 20]. As

explained by Brandt, ETP’s policy against using cameras on the worksite has an exception for

taking pictures of safety issues. [Record Document 15-7 at 9]. As Walker himself admits,

sleeping on the job may lead to “catastrophic occurrences,” [Record Document 15-4 at 6], and

therefore it is not clear that the employees were violating ETP policy such that discipline was

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watranted. Further, the violations ate of a different nature. One is a ban on taking images in the

workplace, largely based on concerns about privacy, sexual harassment, productivity, and

protecting proprietary information while the other is a ban on sleeping at work based on safety

concetns. [Record Documents 15-7 at 32 and 17-5 at 34-35]; Lee, 574 F.3d at 260 (stating that

it is proper to consider the relative seriousness of different employees’ allegedly comparable

offenses); ORoye v. Univ. of Tex. Hous. Health Sci. Ctr, 245 F.3d 507, 514 (th Cir. 2001) (holding

that employees are not similarly situated when they violate different company policies). Because

these ate not comparable violations, they cannot be used to compare ETP’s response.

v. ETP’s Policies

Walker next argues that his termination violated ETP’s own policies regarding

progressive discipline and investigation of complaints. [Record Document 17-1 at 20]. In

support of this, Walker cites to Section 9 of the employee handbook which lays out the steps

that may be taken before an employee is terminated. [Record Document 15-7 at 28-30]. He also

cites to ETP’s stated policy that investigations are usually conducted before disciplinary action

is taken, and that the investigation includes allowing the employee to respond. [Record

Document 15-7 at 29].

ETP denies that Walket’s termination violated any provision of the employee handbook.

[Record Document 20 at 7]. ETP contends that its actions conformed to the provisions cited

to by Walker because they allow the company to terminate any employee at any time without

first engaging in progressive discipline. [Record Document 15-7 at 28-29]. It argues that it

investigated prior to Walker’s termination and that Walker admitted he was the individual

pictured. [Record Document 20 at 7]. Ultimately, ETP states that it terminated Walker for

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“repeatedly and excessively” violating its Workplace Conduct Policy. [Record Documents 15-7

at 6 and 20 at 7]. ETP determined that sleeping in the workplace posed a “safety tisk of a gas

leak, fire or explosion” and felt termination without progtessive discipline was warranted by

Walket’s actions. [Id]

It is true that “an employer’s failure to follow its own policies may be probative of

discriminatory intent,” Réchardson v. Monttronics Int’l, Inc., 434 F.3d 327, 336 (5th Cir. 2005), but

the Court cannot conclude that ETP actually violated its policies. The policies state that ETP

need not always engage in progressive discipline and investigation and ETP has presented a

legitimate reason why it did not—concetns that continued sleeping on the job posed a risk to

Walker, other employees, and the plant. Therefore, the Court will not consider ETP’s alleged

policy violation as evidence of pretext. See Shirley, 726 F.3d at 683 (refusing to infer pretext when

an employer’s interpretation of its policy was reasonable).

vi. Timing of Walket’s Termination and Disciplinary Record

Having rejected the validity of Walker’s other arguments about why his termination was

pretext for discrimination, Walker is left with two facts to support an inference of pretext. First,

his termination occurred immediately after he returned from FMLA leave. Second, he had no

documented disciplinary history. Taken together, this is not sufficient to establish by a

pteponderance of the evidence that ETP’s stated reason for Walker’s termination is false or

unworthy of credence.

When a plaintiff relies on temporal proximity to prove pretext, the “suspicious timing”

must be coupled with “other significant evidence of pretext.” Garcia, 938 F.3d at 244 (quoting

Shackelford v. Deloitte C» Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999)). “This standard can be

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met when the ‘plaintiff had highly positive performance reviews up until” the protected activity

“and then suffered a sharp decline in treatment immediately after the protected conduct

occurted.” United States ex rel King v. Solvay Pharms., Inc., 871 F.3d 318, 334 (Sth Cir. 2017) (quoting

Khalfani v. Balfour Beatty Cmtys, LL.C., 595 F. App’x 363, 366 (th Cir. 2014)). The Garaa coutt,

summiatizing prior holdings involving temporal proximity, noted that “evidence of temporal

ptoximity combined with positive performance reviews was not enough to create an issue of

fact regarding pretext.” Garcia, 938 F.3d at 244 (citing Soay Pharms., Inc. 871 F.3d at 334). It

contrasted this with a case where temporal proximity, combined with a “plaintiffs dispute of

events leading up to her termination,” statements of other employees warning the plaintiff

against engaging in the protected activity, and “employees who did not receive negative reviews

even though they had the same problems that the plaintiff recetved poor reviews for” was

sufficient to establish pretext. Garda, 938 F.3d at 244 (citing Shackelford, 190 F.3d at 409).

Walket’s case is weaker than the one in which temporal proximity and positive

performance reviews was found to be insufficient. Assuming that Walker had no performance

issues before his termination, which ETP disputes, Walker has still not presented any evidence

of positive performance reviews. Viewed in the light most favorable to Walker, he has presented

evidence that he was a satisfactory employee in the months that he worked at the Dubberly

Plant. This does not tise to the level of being “other significant evidence of pretext” that can

combine with suspect timing to satisfy Walker’s burden of demonstrating that his termination

was pretextual. Walker’s interference claim based on the failure to reinstate him is DISMISSED

with prejudice.

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IV. Plaintiff's FMLA Retaliation Claim

Walker also alleges that his termination was the result of ETP’s retaliation against him

for taking FMLA leave. [Record Document 1 at 4]. ETP contends first that Walker cannot

establish a prima facie case of retaliation because he cannot demonstrate that he was treated less

favorably than a similarly situated employee who did not request leave. [Record Document 15-

1 at 12]. Second, ETP argues that even if Walker could establish a prima facie case, his retaliation

claim must fail because Walker cannot prove that ETP’s stated non-discriminatory reason for

his termination is pretextual. [Record Document 15-1 at 16-19].

To state a claim for retaliatory discharge, a plaintiff must establish that: “(1) [he] engaged

in a ptotected activity, (2) the employer discharged [him], and (3) there is a causal link between

the protected activity and the discharge.” Tatum, 930 F.3d at 713 (quoting Richardson, 434 F.3d

at 332). When there is no evidence of discriminatory intent and the employee has established a

prima facie case, the Court must apply the McDonnell Douglas framework. Tatum, 930 F.3d at

713. Under this framework, the burden first “shifts to the employer to articulate a legitimate,

nondisctiminatoty treason” for its action. Id (quoting Richardson, 434 F.3d at 332). If the

employer does so, the “burden shifts back to the employee to show by a preponderance of the

evidence that the employer’s articulated reason is pretext for discrimination.” Id (quoting

Richardson, 434 F.3d at 332-33). For FMLA tetaliation claims, a plaintiff may also satisfy his

burden by demonstrating that discrimination was a motivating factor in his termination.

Richardson, 434 F.3d at 333. This tequites establishing that, even though discrimination was not

the only reason for the adverse employment action, “[it] actually play[ed] a role in the employer’s

decision making process and ha[d] a determinative influence on the outcome.” Delaval v. PTech

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Drilling Tubulars, L.L.C., 824 F.3d 476, 479-80 (5th Cir. 2016) (quoting E.B.0.C. », LHC Grp,

Inc., 773 F.3d 688, 702 (th Cir. 2014)). If proven, the burden shifts back to the employer to

“prove that it would have taken the same action despite the discriminatory animus.” Id. The

employet’s burden at this step is “effectively that of proving an affirmative defense.” Id.

The Court will assume, arguendo, that Walker has established his prima facie case of

retaliation. As previously discussed, ETP has stated a legitimate, non-discriminatory reason for

Walker’s termination. The Court has also already concluded that Walker has not met his burden

of establishing that Walker’s termination was pretextual, and thus the Court must determine if

Walker has established that his FMLA leave was a motivating factor in his termination.

The Court’s earlier analysis of Walker’s evidence presented to suppott pretext is equally

applicable to a motivating factor analysis, so the Coutt is left to consider if the same two facts

ptovided to support a finding of pretext can support a finding that taking FMLA leave was a

motivating factor for Walker’s termination—temporal proximity and the lack of disciplinary

history.

The Fifth Circuit has found enough evidence to demonstrate that an adverse

employment action was motivated by discrimination when a plaintiffs evidence included job

performance criticisms that only began after suffering a seizure at work and multiple comments

about being a liability or potentially being “in trouble” if the plaintiffs disability manifested

itself at work. LHC Group, Inc., 773 F.3d at 703. Similarly, in Richardson v. Monttronics International,

Inc., the Fifth Circuit found that temporal proximity, combined with a comment about firing

the plaintiff and another comment that the employer had “accommodated her enough” prior

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to the plaintiffs termination supported a finding that discrimination was a motivating factor in

the termination. Richardson, 434 F.3d at 335.

Walker presents less evidence than what the Richardson or LHC Group, Inc. courts

accepted to prove that discrimination or retaliation played a determinative outcome in an

employee’s termination. For example, he has not presented evidence that any decisionmakers

at ETP—like McClain, McKee, or Brandt—made any suspicious comments. His lack of

documented disciplinary history also fails to support a finding that discrimination or retaliation

was a motivating factor. Unlike in LHC Group, Inc, Starkey reported Walker’s behavior and

McClain requested a written report before Walker requested leave, which means there is no

evidence that he began accumulating negative performance reviews or a disciplinary history only

after engaging in a protected behavior. Thus, Walker has failed to establish that taking FMLA

leave was a motivating factor in ETP’s decision to terminate him, and Walker’s FMLA

retaliation claim is DISMISSED with prejudice.

V. = Plaintiff's ADA Claim

Walker next alleges that his termination constitutes disability discrimination in violation of

the ADA. [Record Document 17-1 at 25-27]. ETP argues that summary judgment in its favor

is apptopriate because Walker cannot establish that he had a disability or that ETP regarded

him as having a disability. [Record Document 15-1 at 20-22]. In the alternative, it argues that

Walker cannot prove that his termination was because of his disability, that he was treated less

favotably than non-disabled employees, ot that ETP’s stated reasons for his termination ate

pretextual. [Record Document 15-1 at 21-24].

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The ADA prohibits an employer from discriminating against a “qualified individual” on

the basis of a “disability.” 42 U.S.C. § 12112(a). Without direct evidence of discrimination,

establishing a prima facie case under the ADA requires a plaintiff to show that: “(1) he has a

disability, or was regarded as disabled; (2) he was qualified for the job; and (3) he was subject to

an adverse employment decision on account of his disability.” Caldwell, 850 F.3d at 241. Ifa

plaintiff can meet this burden, a “presumption of discrimination arises, and the employer must

‘atticulate a legitimate non-discriminatory reason for the adverse employment action.” Id

(quoting Cannon v. Jacobs Field Servs. N. Am., Inc, 813 F.3d 586, 590 (5th Cir. 2016)). If the

employer does so, the plaintiff then again has the burden of producing evidence sufficient for

a jury to find that the employet’s reason is pretextual. Jd. Pretext can be shown “either through

evidence of disparate treatment or by showing that the employer’s proffered explanation is false

ot unworthy of credence.” Id (quoting Jackson, 602 F.3d at 378-79). Additionally, the Fifth

Circuit has held that for claims raised under the ADA, “an employee who fails to demonstrate

pretext can still survive summary judgment by showing that an employment decision was ‘based

on a mixture of legitimate and illegitimate motives . . . [and that] the illegitimate motive was a

motivating factor in the decision.”” LHC Grp., Inc., 773 F.3d at 702 (quoting Machinchick v. PB

Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005).

In this case, the Court need not address whether Walker can establish a prima facie case

for disability discrimination because, as previously discussed, the Court has concluded that

Walker cannot establish the final element in his claim—that discrimination was a motivating

factor in his termination. According to Walker, ETP was first informed of his substance abuse

ptoblem when he requested FMLA leave for the purpose of seeking treatment on the morning

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of January 24, 2017. [Record Document 15-4 at 4]. This means that ETP could not have acted

with discriminatory animus based on the belief that Walker was disabled due to his substance

abuse problem at any time prior to January 24, 2017. Thus, the analysis relevant to FMLA

retaliation and interference is equally applicable to the disability discrimination analysis. Further,

Walker presented no evidence about whether the allegedly similarly situated coworkers faced

substance abuse problems, which means the Court is unable to compare whether the men are

outside of Walker’s alleged protected class as an individual regarded as disabled by his employer.

Walker’s disability discrimination claim is DISMISSED with prejudice.

VI. = PlaintifPs ADEA Claim

Finally, Walker alleges that his termination was age-based discrimination in violation of the

ADEA. [Record Document 17-1 at 25-28]. ETP contends that Walker cannot establish a prima

facie case because he has no evidence that he was treated differently than similarly situated

younger employees or evidence that his termination was otherwise connected to his age.

[Record Document 15-1 at 26-27]. ETP also argues that, even if Walker could establish a prima

facie case of age discrimination, his claim fails because he cannot demonstrate that ETP’s stated

reason for his termination is pretextual. [Record Document 15-1 at 28-29].

Like Walker’s other claims, the ADEA utilizes the McDonnell Douglas framework when a

plaintiff's claim is not based on direct evidence of discrimination. Jackson, 602 F.3d at 377-78.

A key distinction between its application in the ADEA context is that a plaintiff must

demonstrate that age was the “but-for” cause of the adverse employment action. Id at 377. A

facie case of age discrimination requires a plaintiff to show that: (1) he was discharged;

(2) he was qualified for the position; (3) he was within the protected class at the time of his

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discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced

by someone younger, or iit) otherwise discharged because of his age.” Id. (quoting Bergusst v.

Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007)).

Because the Court concludes, as previously explained, that Walker cannot meet his burden

of establishing that ETP’s stated reasons for his termination were pretextual, the Court need

not address the issue of whether Walker has stated a prima facie case of age discrimination.

Additionally, Walker’s case for pretext is even weaker in regard to his ADEA claim because

Walker has failed to identify the ages of all of the coworkers he argues are similarly situated to

him. [Record Documents 17-7, 17-8, 17-9, and 17-10]. Without this information, the Court

cannot consider whether the men are outside of Walker’s protected class such that their

disparate treatment would be relevant to a pretext analysis. Walker’s ADEA claim is

DISMISSED with prejudice.

CONCLUSION

For the aforementioned reasons, Defendant’s motion [Record Document 15] is

GRANTED. Plaintiffs claims are DISMISSED with prejudice. Plaintiffs motion to strike

[Record Document 18] is DENIED. A judgment consistent with this Memorandum Ruling

will issue herewith.

THUS DONE AND SIGNED in Shreveport, Louisiana, on this J Li bay of

February, 2020. : □□

_ \BETH E. FOOTE

UNITED pee JUDGE

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