The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
JAMES N KITTLING CASE NO. 1:17-CV-01637
VERSUS JUDGE DRELL
BOISE CASCADE □□□ MAGISTRATE JUDGE PEREZ-MONTES
MEMORANDUM RULING
Before the court is a motion for summary judgment filed in the above-captioned
employment discrimination suit by defendant, Boise Cascade, LLC (“Defendant” or “Boise”).
(Doc. 26). For the reasons expressed below, the court finds that the motion should be GRANTED
and, accordingly, all claims by plaintiff, James N. Kittling (“Plaintiff’ or “Kittling”) should be
DENIED and DISMISSED with prejudice.
I, Relevant Facts
Boise hired Kittling, an African-American male, into a “Utility Production” position at its
Lena, Louisiana plant on or about September 13, 2016.! As is its practice with new employees,
Boise advised Kittling that he must complete a 120-day probationary period at the start of his
employment, during which time he could be terminated if he accrued two (2) instances of tardiness.”
Several weeks after beginning his employment, Boise offered Kittling the opportunity to
move from one production team to another in order to avoid a potential layoff.’ Kittling accepted
the opportunity and moved to what the parties refer to as “Team 2.” On November 18, 2016,
Kittling was tardy arriving to work and received a disciplinary write up from his supervisor, Arthur
Complaint (Doe. 1) at 7; Deposition of Kittling (Doc. 26-4) at 95:15-17.
2 Declaration of Sepulvado (Doc. 26-8) at {ff 6-7.
3 Doc, 26-4 at 124:18-125:9.
“Id.; Declaration of Fields (Doc. 26-12) at J 9. .
Fields (“Fields”), for this infraction.> On December 6, 2016, Kittling was absent from work due to
a flare-up of his gout — a condition he claims he has suffered from since approximately age 17 and
for which he takes medication.® Upon returning to work on December 7", Kittling presented Boise
with paperwork received during his visit to urgent care.’ Consequently, Kittling received another
disciplinary write up from Fields.® At the end of his shift on December 7", he was told not to return
to work until further notice. On December 12, 2016, Lori Sepulvado (“Sepulvado”), a human
resources employee with Boise, notified Kittling that his employment with Boise was terminated
effective December 7" for attendance violations during his probationary period.”
Kittling completed an EEOC Intake Questionnaire (“Questionnaire”) on January 30,
2017.!° Kittling’s questionnaire responses specified both race and disability as causes for his claim
of employment discrimination against Boise.!! It is unclear from the record whether or not Kittling
signed and returned the EEOC Charge of Discrimination (“Charge”), forwarded to him with the
EEOC letter dated June 26, 2017.'* In any event, the EEOC issued a right to sue letter, dated
September 19, 2017, dismissing Kittling’s charge and advising him of his right to file suit against
Boise.
Kittling timely filed suit against Boise on December 19, 2017.4 Kittling’s complaint
asserts federal claims for employment discrimination under both Title VII of the Civil Rights Act
at J 10.
§ Doc, 26-4 at 98:7-17.
at 153:22-154:9,
8 Id, at 152:13-17.
Doc. 26-8 at □ 11.
0 Doc, 26-23.
Td, at p. 2 of 4.
Doc. 32 at p. 5; Doc. 26-24,
3 Doc. 26-21.
4 Doe. 1,
of 1964 (“Title VII”)!5 and the Americans with Disabilities Act (“ADA”),’° as well as companion
Louisiana law claims under Louisiana’s Employment Discrimination Law (“LEDL)!” and the
Louisiana Whistleblower Law.'® While Kittling’s claim asserts a claim for retaliation under the
LEDL to the extent such a claim is cognizable, Louisiana does not recognize this cause of action,
so none is deemed asserted.!?
Boise timely answered the suit?° and seeks summary judgment dismissing all remaining
claims against it. Boise’s motion, now fully briefed, is properly before the court for consideration
and disposition.
I. Applicable 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 Anderson v. Liberty Lobby, Inc., 477 US.
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 675, 680 quoting Trevino
v, Celanese Corp., 701 F.2d 397, 407 (5" Cir. 1983). However, the non-moving party does not
establish a genuine dispute with “‘some metaphysical doubt as to the material facts,’ by
‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (Sth Cir. 1994) (citations omitted). It is important
15 49 ULS.C. § 2000¢, et seq.
16 49 U.S.C. § 12101, et seq.
7 La, RS. 23:323 and 23:332.
8 La, R.S, 23:967.
19 Glover v. Smith, 478 Fed. Appx. 236, 244 (5" Cir. 2012) citing Lowery v. Dresser, Inc., 893 So.2d 966 (La. App.
3 Cir. 2005)
20 Doe, 11.
to note that the standard for a 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.
TI. Analysis
Exhaustion of Administrative Remedies
Boise’s motion urges dismissal of Plaintiffs claims based on Kittling’s alleged failure to
exhaust administrative remedies prior to filing this suit. Citing 29 C.F.R. § 1601.3, Boise points
out that Kittling’s unsigned, unverified charge does not meet the regulation’s requirements that the
charge be in writing, signed and verified. Boise admits that it received a Notice of Charge, dated
March 1, 2017, from the EEOC, but argues that this notice was insufficient to apprise it of the
nature of the claims against it by Kittling prior to the filing of this suit and, thus, Kittling’s unsigned
and unverified charge should not be deemed as fulfilling the important purposes of exhaustion in
this case.”!
In response, Kittling offers no concrete assertion as to whether he signed and returned the
charge to the EEOC but relies instead on the EEOC’s issuance of a right to sue letter in September
2017.
Before a plaintiff may file suit in federal court on claims of employment discrimination
under Title VII, he must first exhaust his administrative remedies.2>_ Exhaustion is not a
jurisdictional issue but is a condition precedent to bringing a claim under Title VII, nonetheless.”
Exhaustion requires the timely filing of a charge of discrimination with the EEOC and the receipt
of a notice of right to sue.
21 Doc, 26-21; Doc. 26-2 at pp. 10, et seq.
22 Doc, 32 at p. 5, citing Deposition of Kittling at “p. 201-4.”
23 Taylor v. Books a Million, 296 F.3d 376, 378-79 (5" Cir. 2002).
The instant case presents a unique fact pattern regarding the issue of exhaustion. While no
evidence exists to support Kittling’s execution of a signed, verified, formal Form 5 charge of
discrimination, it’s clear that the EEOC did issue a notice of right to sue.*° Regardless of whether
Kittling’s signed formal charge was not returned or was somehow lost along the way to being filed
by the EEOC, it’s clear from the record that it is EEOC policy to issue a right to sue letter when a
claimant fails to respond to a request to sign and return a Form 5 formal charge.”” Given that the
EEOC did issue a right to sue letter in this case and Boise admits that it received a Notice of Charge
advising it of Kittling’s claims against it, we find that dismissal on the grounds of failure to exhaust
would be inappropriate in this case.
Employment Discrimination — McDonnell Douglas Analysis
Turning to the merits, we begin by noting Kittling’s voluntary dismissal of both his
retaliation and whistleblower claims.”® Consequently, Kittling’s remaining allegations of
employment discrimination are based on race and disability. Whether based on race discrimination
under Title VII of the Civil Rights Act of 1964 (“Title VII”)? or on disability discrimination under
the Americans with Disabilities Act (“ADA”),*° the court’s analysis is rooted in the McDonnell
Douglas burden shifting framework derived from the United States Supreme Court’s seminal
opinion McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973).
Boise contends that Kittling’s claims under both theories fail at all stages of the requisite
McDonnell Douglas analysis and, for that reason, summary judgment should be granted as to these
26 Doc. 32 at p. 5.
27 Doc, 26-24 at pp. 3-4 (“Before we initiate an investigate an investigation, we must receive your signed Chare of
Discrimination (EEOC Form 5). Please sign and return the charge within thirty (30) days from the date of this letter.
Under EEOC procedures, if we do not hear from you within 30 days or receive your signed charge within 30 days,
we are authorized to dismiss your charge and issue you a right to sue letter allowing you to pursue the matter in
federal court...”).
28 Doc. 32 at p. 3 n. 13.
29 42 U.S.C. § 20006¢, et seq.
30 42 U.S.C. § 12101, et seq.
claims in its favor. The McDonnell Douglas framework is employed by courts to evaluate
employment discrimination claims supported only by circumstantial evidence.*! In such cases, the
plaintiff is unable to show direct evidence of discrimination but must instead “raise the inference
of discrimination.”22 Under the McDonnell Douglas framework, the plaintiff first bears the burden
of a prima facie showing of discrimination. In order to make a prima facie showing regarding
disability discrimination under the ADA, Kittling must demonstrate the following: (1) that he has
a disability or was regarded as being disabled; (2) that he was qualified for the job; (3) that he was
subject to an adverse employment decision because of his disability. Ifthe plaintiff successfully
carries his burden, which is one of production and not persuasion, the prima facie stage, the
employer must respond by articulating some legitimate, non-discriminatory reason for the adverse
employment action.** The burden then returns to the plaintiff, who may refute the employer’s
proffered reason by offering evidence that this reason is merely pretext for impermissible
discrimination.*>
Boise concedes for purposes of this motion that Kittling can demonstrate that he was either
disabled or regarded as such, that he was qualified for the job at issue and that he suffered an
adverse employment action when he was fired.°° Boise disputes Kittling’s ability to offer evidence
that his termination was based on his disability, however. Specifically, Boise offers evidence that
Kittling’s supervisor, Fields, was unaware of Kittling’s gout and that, in keeping with its well-
publicized policy, other probationary employees who accrued two “occurrences” within the
31 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
32 Lawson v. AT&T Mobility Services, LLC, 2020 WL 1696308 (5" Cir. 2020) citing Thomas v. Johnson, 788 F.3d
177, 179 (5" Cir. 2015).
33 Clark v. Champion Nat. Sec., Inc., 952 F.3d 570, 582 (5 Cir. 2020) citing Moss v. Harris Cty. Constable Precinct
One, 851 F.3d 413, 417 (5 Cir, 2017).
Caldwell v. KHOU-TV, 850 F.3d 237, 241-42 (5 Cir. 2017) (internal citations omitted).
36 Doe, 26-2 at p. 19.
probationary period were also fired.>” Kittling avers that Boise was aware of his gout via Mark
Bossier, superintendent at Boise, and citing his own EEOC Questionnaire and the Boise
Attendance/Performance Evaluation form, which constituted a “final written warning with
suspension” following his second occurrence during probation.** After reviewing the proffered
evidence, the court finds that Kittling fails to satisfy his prima facie burden as to disability
discrimination. Given Kittling’s failure to establish the required prima facie case for disability-
based employment discrimination under the ADA, we find dismissal of such claim appropriate.
Assuming for the sake of this motion that Kittling did convey to Bossier the nature and
severity of his medical condition during his interview, we agree with Boise that Kittling does not
allege that he asked for any reasonable accommodation.*? Where a plaintiffs claim of disability
discrimination is based in part on an employer’s failure to provide reasonable accommodation
under the ADA, the plaintiff bears the burden of showing that he made a “sufficiently direct
specific request” for accommodation.*° An employer’s obligation to accommodate a disability
generally does not arise until the employer receives a request for accommodation.*! We find that
Kittling’s allegations and evidence fail to make out a viable ADA accommodation claim in this
case. Any such purported claim will be dismissed.
Moreover, there is no evidence to suggest that Kittling was treated disparately based on his
disability under the rules applicable to probationary employees. A plaintiff advancing a
37 Td, at pp. 19-21 citing Declaration of Fields at {14 and Declaration of Peek at { 4.
38 Exhibit M (Doc. 26-15) and Exhibit U (Doc. 26-23); Deposition of Kittling at 97:11-98:20.
39 Doc. 32 at p. 5; Doc. 26-2 at p. 3; Deposition of Kittling at pp. 97-98.
40 Dugger v. Stephen F. Austin State Univ., 232 F.Supp.3d 938, 958 (E.D. Tex. 2017) quoting Nathanson v. Med.
College of Pa., 926 F.2d 1368, 1381 (3% Cir. 1991) and Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 795 (1*
Cir. 1992).
41 Amedee v. Shell Chemical LP — Geismar Plant, 384 F.Supp.3d 613, 642-43 (M.D. La. 2019) citing Loulseged v.
Akso Nobel Inc., 178 F.3d 731, 736 n. 5 (5" Cir, 1999).
42 Plaintiff does not dispute and ample evidence suggests that Boise’s probationary employee orientation made clear
to Kittling that he and all other probationary employees were not permitted more than one occurrence of tardiness or
absence. Doc. 26-2 at p. 3 n. 18.
disparate treatment claim based on disability must prove that, in addition to the uncontested
elements discussed above, he was treated less favorably than non-disabled employees.” Kittling’s
brief presents no argument or evidence tending to show that he was treated less favorably than
other non-disabled probationary employees. Thus, Kittling fails to carry his burden of proof as to
any purported ADA disparate treatment claim and dismissal is appropriate.
As to all three purported claims discussed above, Kittling’s prima facie case was found
deficient, warranting dismissal. We note that, even if this were not the case, dismissal may still be
result, as we agree that Kittling offers no proof of pretext to rebut Boise’s legitimate, non-
discriminatory motive for his termination. Boise establishes that it’s standard practice as to
probationary employees is to enforce strict attendance regulations. This is supported by the
testimony of Sepulvado affirming that all new hires were briefed on the rules applicable to
probationary employees, including the one at issue in this suit.“4 Sepulvado attested to Boise’s
practice of providing orientation training, including PowerPoint presentations and an employee
handbook with this information to each new employee. Plaintiff offers no evidence of pretext to
refute Boise’s assertion that Kittling’s termination was due to the application of its well-publicized
probationary employee attendance policy.
We now turn to Kittling’s race-based employment discrimination claim. A plaintiff
asserting a Title VII claim based on race discrimination must demonstrate a prima facie case under
the McDonnell Douglas framework. In keeping with other employment discrimination theories,
race-based discrimination claims require prima facie proof that: (1) the plaintiff is a member of a
protected class; (2) was qualified for the position; (3) was subjected to an adverse employment
43 Mzyk v. North East Independent School Dist., 397 Fed. Appx. 13, 16 n. 3 (5 Cir. 2010) citing Aldrup v. Caldera,
274 F.3d 282, 286 (5" Cir. 2001) and McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279-80 (5% Cir. 2000).
4 Doc. 26-8 at pp. 2-3.
* Id.
action; and (4) was replaced by or treated less favorably than someone outside his protected class."
As discussed above, the parties agree for the purpose of this motion that Kittling fulfills the first
three (3) elements and, thus, our analysis centers on whether Kittling demonstrates the fourth and
final element of his requisite prima facie case regarding race-based employment discrimination.
Kittling’s brief and deposition testimony suggest that his theory in this case is one of
disparate treatment based on race, rather than of being replaced in his position by a person outside
of his race. We reach this conclusion via Kittling’s representation that he believed that other
employees were not disciplined as he was for arriving late to their shift.4” Specifically, Kittling
testified that on November 18, 2016 he was treated less favorably than two other employees,
Dalton Christy (“Christy”) and Kenneth LNU (“LNU”). Christy is Caucasian, while LNU is
African-American.** Kittling claims that he held the door to the break room open for Christy and
LNU and, in doing so, noted that they were even later than he in arriving to clock in.” Kittling
recalls Christy explaining to him that he was “running late.”*® After gathering his equipment and
reporting to the factory floor to begin his shift, Kittling was summoned to Fields’ office and written
up for tardiness.*! Kittling testified that neither Christy, nor LNU received write ups for
occurrences that day, though they clocked in behind him, evidencing disparate treatment,
particularly as to Christy.
Boise denies that Kittling’s testimony satisfies the fourth prima facie element for race-
based employment discrimination. Boise points out that LNU, as noted by Kittling’s own
46 Melvin v. Barr Roofing Co., 2020 WL 1696121 *3 (5" Cir. 2020) quoting Haire v. Bd. of Sup’rs. of La. State
Univ. Agric. & Mech. Coll., 719 F.3d 356, 363 (5 Cir. 2013).
47 Doc, 32 at pp. 3-4; Deposition of Kittling at pp. 144-147.
48 Deposition of Kittling at 142, 144.
49 Td. at 145.
50 Id.
51 Td. at 146.
52 Doc. 32 at p. 4.
testimony was not a probationary employee at the time in question, making him subject to differing
attendance rules than both Kittling and Christy, though it notes that there is no differing standard
for what constitutes a “late” arrival among probationary and non-probationary employees.*? Since
LNU is not a probationary employee, argues Boise, any comparison between disciplinary action
taken against LNU and Kittling is irrelevant.”
Boise characterizes Kittling’s testimony regarding disparity between Boise’s treatment of
him and that of fellow probationary employee Christy as inadmissible hearsay.°> Boise points out
that Kittling offers no proof that Christy was not disciplined for occurrences while a probationary
employee, other than this single, inadmissible, hearsay recollected account.°°
Finally, Boise asserts that, given that Fields was the decision maker as to whether Kittling
would be written up for his tardiness on the date in question and Fields himself is also African
American, Kittling’s disparate treatment claim must fail.>’
Kittling’s response highlights testimony in which he describes his recollection that certain
unnamed Caucasian employees and perhaps some African American employees arrived late, but
were not written up. Kittling’s brief argues that this testimony should be afforded weight as
evidence of disparate treatment of Kittling as compared to similarly situated probationary
employees.°?
We have carefully reviewed the filings in this matter and find that Kittling fails to fulfill
his prima facie burden as to his race-based employment discrimination claim. While we assume
for these purposes that Kittling demonstrates the first two elements, we find he fails to show that
53 Doc, 26-2 at p. 15.
“Id.
55 Td. at p. 16.
Td.
at n. 99.
Re 32 at p. 4 citing Deposition of Kittling at 148:13-149:6.
10
he suffered an adverse employment action. Kittling’s testimony and brief are specific regarding
the bases for his various theories of recovery in this case and he is represented by counsel.
Kittling’s testimony and brief allege that Boise’s discrimination against him on November 18,
2016 was based on his race. That incident culminated in Kittling receiving a write up from his
supervisor Fields, also African American. A plaintiff alleging employment discrimination must
show an adverse employment action, to include “ultimate employment decisions” such as “hiring, □
firing, demoting, promoting, granting leave and compensating.”© Thus, Kittling fails to satisfy
the third element of his prima facie burden.
Assuming Kittling could show he suffered an adverse employment action, his claim would
still fail as to the fourth prima facie element. Kittling’s vague testimony alleging disparate
treatment has little probative value in demonstrating racial animus given the fact that Fields, who
is also African American, was the decision maker responsible for applying the attendance rules to
Kittling. Moreover, Kittling fails to offer evidence tending to show that Christy, the Caucasian
employee with whom he seeks to compare himself in this motion, was similarly situated for
purposes of misconduct.®! Without evidence and argument from which the court might compare
the two employees, the court would not be able to make finding that this element of disparate
treatment was satisfied by Kittling’s testimony. Kittling’s summary statements do not offer
evidence that he and co-worker Christy were similarly situated or that their disciplinary records or
alleged infractions on November 18, 2016 were so “nearly identical” as to raise the inference of
discrimination.”
6° Thompson v. City of Waco, Tex., 764 F.3d 500, 503 (5 Cir. 2014).
61 Perez v. Texas Dept. of Crim. Justice, Inst. Div., 395 F.3d 206, 213 (5" Cir. 2004) citing Barnes v. Yellow Freight
Sys. Inc., 778 F.2d 1096, 1101 (5" Cir. 1985) (“holding that a presumption of discriminatory intent is raised for
purposes of a disparate treatment claims where ‘a supervisor of one race treats employees of the same race more
favorably than similarly situated employees of another race under circumstances that are essentially identical..”).
® Id. quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5 Cir. 1991) and citing Smith v. Wal-Mart Stores, 891
F.2d 1177, 1180 (5" Cir, 1990). The court notes that Kittling’s burden at the prima facie stage is one of production
11
For the foregoing reasons, the court finds that Kittling’s Title VII employment
discrimination claim based on race lacks essential elements of proof and should be dismissed.
Louisiana Law Claims
The LEDL prohibits employment discrimination based on, inter alia, race and disability
and provides aright of action against employers that violate its provisions.” This state counterpart
is subject to the same analysis as Title VII claims. Given the court’s findings as to Kittling’s
Title VII and ADA claims, we also find dismissal of all remaining Louisiana law claims under the
LEDL appropriate based on the same reasoning.®
IV. CONCLUSION
Having considered the law and argument advanced by the parties, the court finds that
Kittling’s remaining claims against Boise under both Louisiana and federal law lack requisite
prima facie elements and, having been properly challenged by summary judgment motion, should
now be dismissed with prejudice. The court will use a judgment in conformity with these findings.
Alexandria, Louisiana - S— _. a‘ >
April ZY 5 2020 ED, DRELL, JUDGE
UNITED STATES DISTRICT COURT
and not of persuasion, but summary statements unsupported by evidence are insufficient, even at this stage.
Matthews v. Pilgrims Pride, 783 Fed. Appx. 346, 348 (5 Cir. 2019) citing Brown v. City of Houston, 337 F.3d 539,
541 (5 Cir, 2003).
© Ta. RS, 23:301, et seq.
64 McCoy v. City of Shreveport, 492 F.3d 551, 556 (5" Cir. 2007); Wyerick v. Bayou Steel Corp., 887 F.2d 1271
(5 Cir, 1989).
6 DeCorte v. Jordan, 497 F.3d 433, 437 (5 Cir. 2007); Bell v. Hercules Liftboat Co., LLC, 524 Fed. Appx. 64 (5"
Cir. 2013); Baker v. Fed. Ex Ground Package System, Inc., 278 Fed. Appx. 322 (5" Cir. 2008) citing Smith v.
Amedisys, Inc., 298 F.3d 434, 448 (5 Cir. 2002).
12