Fisher v. Bilfinger Industrial Services Inc

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

KEONTA FISHER DOCKET NO.: 1:18-cv-00154

VERSUS

JUDGE DEE D. DRELL

BILFINGER INDUSTRIAL SERVICES, INC. MAG. JUDGE PEREZ-MONTES

MEMORANDUM RULING

Before the court is a motion for summary judgment (Doc. 55) filed by defendant, Bilfinger

Industrial Services, Inc. (“Bilfinger’’”) in which it seeks dismissal of all claims against it in the

above captioned matter. For the reasons expressed below, the court finds the defendant’s motion

should be GRANTED.

I. Relevant Facts

Plaintiff, Keonta Fisher (“Fisher”) (black), contends he was discriminated against by

Tommy Coutee (““Coutee”) (white) and Kendall Martin (“Martin”) (white) and retaliated against

by Daniel Long (“Long”) (white) while he was employed as a welder by defendant, Bilfinger

Industrial Services, Inc. (“Bilfinger”).! Fisher alleges he was the subject of harassment based upon

race from the time he was hired on September 10, 2015 through February 3, 3016, when he was

assigned to another Bilfinger crew. He further alleges that he was retaliated against starting in

June 2016 for filing a grievance with the local Union and a charge of discrimination with the Equal

Employment Opportunity Commission. Specifically, he asserts was written up, suspended, and

ultimately terminated.

| Fisher worked for Bilfinger and its predecessor, Fru-Con, off and on as a welder and pipefitter from April 2007

through October 2013.

According to Fisher, as soon as he began working in September 2015 for foreman Tommy

Coutee’s crew, he was subjected to discrimination and harassment. On September 14, 2015, Fisher

requested Coutee sign a ticket allowing Fisher to check tools out which he needed to perform his

job duties. Coutee denied the request and told Fisher he would not be employed long enough to

need the tools. Coutee was denied tools for two weeks and told by Coutee that if Fisher would go

ahead and help him win the bet by either quitting or being terminated, Coutee would split the

money with him.

Fisher says he approached his Union Steward, Tim Belgard (““Belgard”), and the General

Foreman Kendall Martin explaining he was being harassed by Coutee and that it made him

uncomfortable and he wasn’t able to do his job. He asked to be moved to another crew but was

told only the Superintendent, Scott Crader, could assign him to another crew.

According to the narrative, Fisher approached Crader and asked for a transfer. Crader,

believing the matter to be a personality dispute, told Fisher that a transfer was not possible. He

explained Fisher was placed on Coutee’s crew because that was where work was available. He

suggested that he would speak to Coutee about the matter, but the two men simply needed to learn

to get along and work together.

Coutee and Martin allegedly made Fisher the target of their harassing conduct. Examples

of the ongoing harassment cited by Fisher were: Coutee’s making sexual gestures behind Fisher’s

back while Fisher was bent down performing a weld; Coutee and Martin’s calling Fisher over in

front of various crewmen and directing him to clean up feces left at a job site while they watched

and laughed; Martin’s wiping his finger, with which he had picked his nose, on Fisher’s face and

then Coutee’s joining in by poking Fisher in the side in a taunting manner.

Fisher also reported being yelled and cursed at by Coutee and Martin and cited an instance

by each. Coutee is said to have yelled at Fisher when he pulled him off of a weld to help pipefitters

with the reading of blueprints and placing of columns and Martin yelled at Fisher, who had been

doing his work as required, after he fussed at other crew members for not doing their work.

Tensions between Coutee and Fisher supposedly peaked on February 2, 2016, when the

two were at the local Union hall. Fisher approached Coutee to address the “mistreatment” and the

conversation escalated to a verbal altercation. (Doc. 52-2 p.4). Fisher “lost his cool” and threw a

punch at Coutee. (Doc. 52-2, p.5). Though Fisher was charged by the police with a misdemeanor

for fighting, Bilfinger did not take disciplinary action against either employee, citing the fact the

fight took place outside of business hours and away from the work site. However, as Long and

Belgard were now acutely aware of the conflict between the two men, Long and Belgard agreed

that Fisher must be transferred to another crew.

On February 3, 2016, Long and Belgard advised Fisher of the transfer. Fisher, frustrated

that he was being moved but Coutee’s conduct wasn’t being addressed, asked them what he should

do. Long told Fisher he could file a complaint with the local Union .

On February 5, 2016, Bilfinger received notice of the complaint and advised Stacey

Gregerson, Director of Human Resources for Bilfinger, of the same. Gregerson made a trip to

Pineville, Louisiana to investigate the claims of race discrimination and hostile work environment.

After interviewing 12 employees, including Fisher, Gregerson found no evidence to support racial

animus. She did, however, provide written counsel to Coutee about confirmed workplace cursing.

On February 12, 2016, Fisher filed his EEOC charge alleging race discrimination in the

form of harassment and hostile work environment. Upon receiving his right to sue letter, Fisher

filed the instant suit asserting identical claims and seeking compensatory and punitive damages,

interest, attorney’s fees and costs and all other relief deemed just and proper.

II. Summary Judgment Standard

A 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). A dispute of material fact is genuine if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party. See Anders on v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). We consider “all evidence in the light most favorable to the party resisting

the motion.” Seacor Holdings, Inc. v. Commonwealth Ins. Co., 635 F.3d 680 (5" Cir.2011)

(internal citations omitted). It is important to note that the standard for summary judgment is two-

fold: (1) there is no genuine dispute as to any material fact, and (2) the movant is entitled to

judgment as a matter of law.

The movant has the burden of pointing to evidence proving there is no genuine dispute as

to any material fact, or the absence of evidence supporting the nonmoving party’s case. The burden

shifts to the nonmoving party to come forward with evidence which demonstrates the essential

elements of his claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The nonmoving

party must establish the existence of a genuine issue of material fact for trial by showing the

evidence, when viewed in the light most favorable to him, is sufficient to enable a reasonable jury

to render a verdict in his favor. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Duffy v.

Leading Edge Products, Inc., 44 F.3d 308, 312 (5" Cir.1995). A party whose claims are challenged

by a motion for summary judgment may not rest on the allegations of the complaint and must

articulate specific factual allegations which meet his burden of proof. Id. “Conclusory allegations

unsupported by concrete and particular facts will not prevent an award of summary judgment.”

Duffy, 44 F.2d at 312, citing Anderson v Liberty Lobby, 477 U.S. at 247.

I. Analysis

Hostile Work Environment

The creation of a hostile work environment through harassment is a form of prohibited

discrimination under Title VII. EEOC v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444, 452 (5" Cir.

2013). “When the workplace is permeated with discriminatory intimidation, ridicule, and insult

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

an abusive working environment, Title VII is violated.” Oncale v. Sundowner Offshore Servs..,

Inc., 523 U.S. 75, 78 (1998) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). To

succeed on a claim of hostile work environment, a plaintiff must show: (1) he was a member of a

protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on

race; (4) the harassment affected a term, condition or privilege of employment; and, (5) the

employer knew or should have known of the harassment and failed to take remedial action.

Hernandez v. Yellow Transp.., Inc., 670 F.3d 644, 651 (5" Cir.2012) (citing Ramsey v. Henderson,

286 F.3d 264, 268 (5"" Cir. 2002)); see also Watts v. Kroger Co., 170 F.3d 505, 509 (5" Cir.1999).

“Whether an environment is hostile or abusive depends on the totality of the circumstances,

including factors such as the frequency of the conduct, its severity, the degree to which the conduct

is physically threating or humiliating, and the degree to which the conduct unreasonably interferes

with an employees work performance.” Septimus v. Univ. of Hous., 399 F.3d 601, 611 (5"

Cir.2005). To be actionable, both the victim and a reasonable person must find it to be an

environment that is hostile or abusive. Lauderdale v. Texas Dept. of Criminal Justice, Inv. Div.,

512 F.3d 157, 163 (5" Cir.2007). A regular pattern of frequent verbal ridicule or insults sustained

over time can constitute severe or pervasive harassment. Walker v. Thompson, 214 F.3d 615, 626

Cir.2000). Simple teasing, offhand comments, and isolated incidents, unless extremely

serious, are insufficient to affect the terms, conditions or privileges of employment. Lauderdale,

214 F.3d at 626.

Fisher is a member of a protected class and the information establish he was subjected to

unwelcome harassment. However, Fisher fails to establish the harassment was based on race.

Fifth Circuit precedent clearly establishes a plaintiffs personal beliefs of racial motivation cannot

import racial animus into an adverse individual’s conduct. One must provide objective evidence

to substantiate the plaintiff's claims that the conduct was race based. Lyles v. Texas Alcohol

Beverage Com’n, 379 Fed.Appx. 380, 384-85 (5" Cir.2010); Cavalier v. Clearlake Rehab. Hosp..,

Inc., 306 Fed.Appx. 104, 107 (5" Cir. 2009); Johnson v. TCB Const. Co., Inc., 334 Fed. Appx.

666, 671 (5" Cir.2009); Garza v. Laredo Indep. Sch. Dist., 309 Fed. Appx. 806, 809 (5 Cir.2009);

Baker v. FedEx Ground Package Sys., Inc., 278 Fed.Appx. 322, 329 (5" Cir.2008); Ellis v.

Principi, 246 Fed.Appx. 867, 871 (5" Cir.2007); Harris-Childs v. Medco Health Solutions, Inc.,

169 Fed. Appx. 913, 917 (5™ Cir.2006).

Fisher cites only two instances of supposed racial animus. The first is confirmed though

Waylon William’s affidavit in which Williams states Coutee told him he “just broke two niggers

up yesterday.” Though the statement is clearly race based, it does not help establish Fisher’s claim

of race based harassment as the statement was never heard by Fisher. The second instance of racial

animus asserted by Fisher and confirmed by Kedrick Smith’s affidavit is that Coutee “repeatedly”

called them “boy.” However, neither Fisher nor Smith provide a single example of when Coutee

used the term. Without a single example, we can hardly find Coutee used the term in a

discriminatory manner, much less repeatedly.

The “mere utterance of an ethnic or racial epithet which engenders offensive feelings in an

employee does not affect the terms [,] conditions, or privileges of employment to a sufficiently

significant degree to violate Title VII.” Jones v. Flagship Intern., 793 F.2d 714, 720 (Sth Cir, 1986)

(alterations in original). “‘[S]poradic use of abusive language’ is outside of Title VII's purview.”

Dailey v. Shintech, Inc., 629 Fed.Appx. 638, 644 (5th Cir. 2015) (quoting Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998)); see also Harilall v. University Health System Development

Corp., 174 F.3d 197, *4 (Sth Cir. 1999) (“Wetback” and “illegal alien” comments were insufficient

to constitute “pervasive harassment actionable under Title VII’); Turner _v. Baylor Richardson

Medical Center, 476 F.3d 337, 341-42 (Sth Cir. 2007) (Repeated references to “ghetto children,”

statement that African-American students attended evening college classes because they could not

qualify for regular admission, and negative comments about plaintiff's lifestyle were insufficient

to demonstrate a hostile work environment); Dailey, 629 Fed.Appx. at 640, 644 (Allegations

plaintiff's supervisor had called plaintiff a “black little motherf—r” on at least two occasions and

told plaintiff he would “kick his black a—s” did not rise to the level of “severe or pervasive”

harassment); Baker v. FedEx Ground Package System Inc., 278 Fed.Appx. 322, *5 (Sth Cir. 2008)

(Supervisor's comments that “she did not want to work with people like” plaintiff and that “whites

rule” were insufficiently severe and did not unreasonably interfere with plaintiff's work

performance). The subjective belief of racial discrimination via harassment without more is

insufficient to establish a hostile work environment.

Even if Fisher could establish harassment based on race, he cannot establish it affected a

term, condition, or privilege of employment. The harassment must be “sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create and abusive working

environment.” Ramsey, 286 F.3d at 268 (quoting Harris, 510 U.S. at 21). While Fisher attempts

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to show that terms of his employment were affected by the harassment, he only points to his

inability to check out tools in September 2015. The record, including Fisher’s own arguments and

deposition testimony, establishes that despite Coutee’s best efforts, Fisher obtained the needed

tools and worked hard each and every day. Because Fisher failed to show the comments “affected

a term, condition, or privilege of employment” his hostile work environment claim must be

dismissed.

Retaliation

Bilfinger also moves for summary judgment on Fisher’s retaliation claims. Fisher loosely

asserts retaliation claims against Long and Coutee claiming Long threatened to fire him if he

reported complaints of discriminatory and harassing conduct to Proctor and Gamble, and Coutee

retaliated against him after being transferred to another crew by making faces at him.

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

against any of his employees...because he has opposed any practice made an unlawful

employment practice by this subchapter, or because he has made a charge, testified, assisted, or

participated in any manner in any investigation, proceeding, or hearing under this subchapter.” 42

U.S.C. §2000e-3(a). To establish a prima facie case of retaliation, Fisher must establish: (1) he

participated in an activity protected by Title VII; (2) his employer took an adverse employment

action against him; and (3) a causal connection exists between the protected activity and the

adverse employment. Cabral v. Brennan, 853 F.3d 763, 766-67 (5"" Cir. 2017) (quoting Jenkins v.

City of San Antonio Fire Dept., 784 F.3d 263, 269 (5"" Cir. 2015); Harvill v. Westward Commc’ns,

LLC, 433 F.3d 428, 439 (5" Cir.2005).

At the time Long allegedly threatened Fisher with termination, Fisher had not undertaken

any conduct opposing an unlawful employment practice. Accordingly, the allegations are not

actionable under retaliation. At most, the threat could be considered harassment, but as discussed

above, there are no allegations to support a determination that the alleged threat was race based.

Accordingly, the claim lacks merit and should be dismissed.

As to Fisher’s claim of retaliation by Coutee, we acknowledge that the faces were made

after Fisher filed his complaints with the local Union and the EEOC. However, making faces does

not rise to the level of retaliation under Title VII. The claim is frivolous and should be dismissed.

Finally, we address Fisher’s assertion, raised for the first time in his opposition to the

motion for summary judgment, that he was retaliated against after he filed complaints with his

local union and the EEOC. Fisher alleges that within four months of filing complaints, he was

written up for tardiness and absenteeism and ultimately fired for the same. This claim was not

raised in Fisher’s complaint nor by Fisher in his deposition. Rather, it was asserted in his

opposition to the motion for summary judgment as a last ditch effort to save his retaliation claim.

Not only do we find that claim should be dismissed as it was not properly asserted but we also find

it lacks a legal basis. There is simply no evidence before the court that Bilfinger began writing

Fisher up or terminated him because he filed complaints. See Medina v. Ramsey Steel Co., 238

F.3d 674, 684 (5" Cir.2001). Where, as here, the only evidence in support of a causal connection

is temporal proximity, the time between the protected activity and the adverse employment action

must be “very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-274 (2001) (per

curium). The Fifth Circuit case law, “although largely unpublished, ‘fits with the Supreme Court’s

requirement that the temporal proximity be “very close” to show causation.” Flanner v. Chase

Inv. Services Corp., 600 Fed.Appx. 914, 922 (5" Cir.2015) (unpublished). See also Barkley v.

Singing River Elec. Power Ass’n, 433 Fed.Appx. 254, 260 (5" Cir.2011) (unpublished) (citing

Ajao v. Bed Bath & Beyond, Inc., 265 Fed.Appx. 258, 256 (5" Cir.2008) (per curiam) finding

temporal proximity of four months “not close enough); Myers v. Crestone Int’l, LLC, 121

Fed.Appx. 25, 28 (5" Cir.2005) (per curiam) (three-month gap did not, by itself, create a causal

link); Raggs v. Miss. Power & Light Co., 278 F.3d 436, 471-72 (5"" Cir.2002) (five-month lapse,

same)). See also Everett v. Cent. Mississippi, Inc. Head Start Program, 444 Fed. Appx. 38, 47 (5"

Cir.201 1) (unpublished) (finding temporal proximity of five months not close enough). Here, we

have a three to four month period between Fisher’s filings and the first time he was written up for

tardiness. An additional three months passed before he was terminated for excessive tardiness and

absenteeism.

Moreover, even if Fisher could establish a prima facie case of retaliation, he has not

presented any evidence to overcome Bilfinger’s legitimate, nondiscriminatory reason for Fisher’s

termination, tardiness and absenteeism. Accordingly, he cannot establish a claim for retaliation

regardless of the theory asserted.

IV. Conclusion

For the reasons set forth above, Bilfinger’s motion for summary judgment should be

granted. The court will issue a judgment in conformity with these findings.

THUS DONE AND SIGNED this 2S ay of March 2020, at Alexandria, Louisiana.

oS —= a

E D. DRELL, JUDGE

UNITED STATES DISTRICT COURT

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