Opinion

Edwin v. Clean Harbors Environmental Services Inc

Court
District Court, W.D. Louisiana
Filed
Mar 31, 2022
Cited by
0 cases
Authority
More cited than 22.6%

The opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

GILBERT EDWIN CIVIL ACTION NO. 2:18-0385

VERSUS CHIEF JUDGE S. MAURICE HICKS, JR.

CLEAN HARBORS ENVIRONMENTAL MAGISTRATE JUDGE KAY

SERVICES INC.

MEMORANDUM RULING

Presently before the Court is Defendant’s Motion for Reconsideration regarding

the Court’s previous order on the Motion for Summary Judgment. Rec. Doc. 122. The

Defendant asks that the Court reconsider its previous ruling denying the Motion for

Summary Judgment regarding Plaintiff’s Title VII retaliation claim. This Motion was

opposed by the Plaintiff. Rec. Doc. 126. For the following reasons, the Motion is

GRANTED.

I. Procedural and Factual Background

The Plaintiff in this case, Mr. Gilbert Edwin, sued his former employer Clean

Harbors Environmental Services Inc. (“Clean Harbors”), alleging claims of racial

discrimination and retaliation. Rec. Doc. 42. Clean Harbors subsequently moved for

summary judgment on all claims. Rec. Doc. 71. After reviewing the record, the Court

granted summary judgment on most of Mr. Edwin’s claims but denied summary judgment

on Mr. Edwin’s Title VII retaliation claim. Rec. Doc. 116.

Regarding this Title VII retaliation claim, the Court ruled that Mr. Edwin had made

his prima facie case for retaliation because Mr. Edwin had filed an EEOC claim, was

subsequently fired, and because Clean Harbors had seemingly been notified by the

EEOC of the investigation. Id. at 10. The Court further held that there was an issue of

material fact regarding the company policies which could lead a reasonable jury to find

that the decision to fire Mr. Edwin was pretextual. Id. at 11-12. It is this ruling that Clean

Harbors is asking the Court to reconsider.

II. Legal Standard

While the Federal Rules of Civil Procedure do not explicitly recognize a motion for

reconsideration, such motions are generally reviewed under Federal Rule of Civil

Procedure 54(b). Rule 54(b) allows a court to “reconsider, rescind, or modify an

interlocutory order for cause seen by it to be sufficient.” Melancon v. Texaco, Inc., 659

F.2d 551, 553 (5th Cir. 1981). Generally, the Courts treat such motions in a similar

fashion as Rule 59(e) motions to alter or amend the judgment, although the “standards

for granting reconsideration under Rule 54(b) are somewhat looser than those under Rule

59(e).” Livingston Downs Racing Ass’n, Inc. v. Jefferson Downs Corp., 259 F.Supp.2d

471, 475 (M.D.La. 2002); see also HBM Interests, LLC v. Chesapeake La., LP, 2013 WL

3893989 at *1 (W.D.La. 2013). These types of motions are generally meant to “serve the

narrow purpose of allowing a party ‘to correct manifest errors of law or fact or to present

newly discovered evidence.’” Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir.

1989) (quoting Keene Corp. v. Int’l Fidelity Insurance. Co., 561 F.Supp. 656, 665 (N.D.Ill.

1982)).

III. Application

a. Prima Facie case

Here, Clean Harbors is asking the Court to reconsider, arguing that it made errors

in its analysis of the record regarding both the prima facie case of the Title VII retaliation

claim as well as the issue of pretext. The Court will first analyze the issue regarding Mr.

Edwin’s prima facie case of Title VII retaliation.

To establish a prima facie case of retaliation under Title VII, the Plaintiff must show

that “(i) he engaged in a protected activity, (ii) an adverse employment action occurred,

and (iii) there was a causal link between the protected activity and the adverse

employment action.” Hernandez v. Yellow Transportation, Inc., 670 F.3d 644 (5th Cir.

2012). Regarding the causal link, “[c]lose timing between an employee’s protected

activity and an adverse action against him may provide the ‘causal connection’ required

to make out a prima facie case of retaliation.” Swanson v. General Services Admin., 110

F.3d 1180, 1188 (5th Cir. 1997) (citing Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th

Cir. 1993).

In the present matter, the first two prongs were not disputed. Mr. Edwin had filed

a report with the EEOC and was subsequently fired. This Court previously held that there

were enough facts to establish the third prong regarding causation because the record

seemed to indicate that Clean Harbors had been sent a letter from the EEOC

approximately one month prior to Mr. Edwin’s termination. See Rec. Doc. 116 at 10; Rec.

Doc. 71-2, Exhibit 18 at CH0010-0011. In its Motion for Reconsideration, however,

Defendant has shown that this Notice from the EEOC was not received. Rec. Doc. 122-

1 at 2-3. Rather, it appears that the EEOC Notice was sent to an incorrect email address

on December 19, 2017 and was not resent thereafter. Rec. Doc. 71-2, Exhibit 18 at

CH0024. Clean Harbors has also demonstrated the reason the email was not received,

as the email address used by the EEOC in sending the Notice contained a typo.

Compare Rec. Doc. 71-2, Exhibit 18 at CH0024 with Rec. Doc. 71-2, Exhibit 10 at

CH0252 (demonstrating that the email used by the EEOC was wrong). It is thus apparent

that Clean Harbors would not have had knowledge of Mr. Edwin’s EEOC filing through

the EEOC Notice as that email was not delivered.

A further review of the record demonstrates that without this basis, it is unclear

whether Clean Harbors had any knowledge that Mr. Edwin had filed an EEOC claim prior

to his termination. Mr. Edwin first personally informed Clean Harbors of his EEOC

complaint at the time he was being terminated. See Rec. Doc. Rec. Doc. 99-10, page

286; Rec. Doc. 99-7, pages 189-193. However, by this time the decision to terminate Mr.

Edwin had already been finalized for his failure to comply with the company’s drug policy.

Rec. Doc. 71-2, Exhibit 16 at CH0623. Thus, any knowledge stemming from Mr. Edwin

himself would not establish a prima facie case of retaliation. Factual issues remain,

however, as to whether Clean Harbors had notice of the EEOC complaint through the

right to sue notification. In her deposition, Barbara Ward, Clean Harbors’ Human

Resources Director, initially stated that she had received the right to sue notification from

the EEOC on December 21, 2017. Rec. Doc. 105-4, p. 83, lines 17-25. However, later

in her deposition, Ms. Ward noted that the right to sue notification had been sent to the

wrong address and had been faxed to her “sometime in January.” Id., p. 173-174. This

right to sue notification shows that Mr. Edwin had filed some claim with the EEOC

although it did not include any details of the charge or investigation. Rec. Doc. 71-2,

Exhibit 18 at CH0013-0014. Thus, there remains some factual dispute as to when Clean

Harbors received this right to sue notification, although it appears that they received it

sometime during the month prior to Mr. Edwin’s termination. Because close proximal

timing can by itself establish a prima facie case of retaliation, the Court finds that summary

judgment remains inappropriate as to the prima facie case.

b. Evidence of Pretext

In a retaliation case, if the plaintiff can establish their prima facie case of retaliation,

then the burden shifts to the defendant “to proffer a legitimate, non-retaliatory reason

for…[the] termination.” Musser v. Paul Quinn College, 944 F.3d 557, 561 (5th Cir. 2019).

If the defendant can do so, then the burden shifts back to the plaintiff who must then show

that the employer’s reason is a mere pretext, which requires a “showing that the adverse

action would not have occurred ‘but for’ the employer’s retaliatory motive.” Feist v. La.

Dep’t of Justice, Office of Att’y General, 730 F.3d 450, 454 (5th Cir. 2013) (citing Univ. of

Texas Southwestern Med. Center v. Nassar, 570 U.S. 338, 360-61 (2013)). To meet this

but for showing, the plaintiff must “show that there is a ‘conflict in substantial evidence’

on this ultimate issue.” Musser, 944 F.3d at 561 (quoting Hernandez, 670 F.3d at 658).

This standard can be met by showing evidence such as “disparate treatment, or that her

employer’s explanation is unworthy of credence.” Brown v. Wal-Mart Stores East, L.P.,

969 F.3d 571, 577 (5th Cir. 2020) (quoting Haire v. Bd. of Supervisors of La. State Univ.

Agric. & Mech. Coll., 719 F.3d 356, 363 (5th Cir. 2013)). Further, evidence that a

company failed to follow their policies may also be used in establishing pretext. See

Smith v. Xerox Corp., 371 F.App’x 514, 520 (5th Cir. 2010) (citing the question of “whether

the employer followed its typical policy and procedures in terminating the employee” as

one “indicia of causation”).

Here, Clean Harbors has demonstrated a legitimate, non-retaliatory reason for

firing Mr. Edwin. As Mr. Edwin sought to come back to work, he tested positive for

marijuana. Rec. Doc. 71-2, Exhibit 15 at CH0052; Rec. Doc. 71-2, Exhibit 13 at CH 0254.

While Mr. Edwin has referred to this as medical marijuana, it is undisputed that it was not

prescribed by a doctor. Rec. Doc. 98-1, Exhibit 31 at CH0402 (a doctor’s letter noting

that the doctor was not authorized to prescribe medical marijuana); Rec. Doc. 71-2,

Exhibit 11, ¶6. Clean Harbors has a policy which “strictly prohibits the possession,

use…of illicit drugs or other intoxicants.” Rec. Doc. 71-2, Exhibit 2 at CH0064. Further,

any employee returning from a leave of absence could be required to take a drug test.

Rec. Doc. 71-2, Exhibit 3 at CH0163. Violation of the policy could result in discipline “up

to and including termination for cause.” Id. at CH0170. Thus, Clean Harbors has met

their burden of showing a valid reason for firing Mr. Edwin, which shifts the burden to Mr.

Edwin to establish pretext.

In its original ruling, the Court held that certain Clean Harbors policies seemed to

provide Clean Harbors with enough discretion that they could have chosen not to fire Mr.

Edwin. Rec. Doc. 116, p. 11-12. Clean Harbors now asks the Court to reconsider that

position for two reasons, first that the Court failed to consider how Mr. Edwin’s safety-

sensitive position impacted their decision to terminate and, second, that Mr. Edwin would

not technically meet the policy requirements. The Court will consider each argument in

turn.

Clean Harbors first argues that it was policy to fire any employees in safety-

sensitive positions who failed a drug screening. The Court notes that this issue was not

initially raised in the Motion for Summary Judgment but that Clean Harbors feels that this

is now relevant in light of the Court’s previous ruling. In her deposition testimony, Ms.

Ward repeatedly indicates that it was Clean Harbors’ policy to terminate any “employee

[who] tests positive in a safety-sensitive position for drugs” and that this was true

regardless of “whether he was a good performer, a poor performer, [or] the greatest

employee…”. Rec. Doc. 105-4, p. 65, lines 5-22. See also Id., p. 69, lines 16-20; Id., p.

179, lines 1-3 (stating that when there was a positive test “[i]n a safety-sensitive position,

[that she] had no examples of when it did not result in termination”). Mr. Edwin’s job was

a safety-sensitive position. Id., p. 95, lines 1-8. Mr. Edwin has not shown any evidence

that would create a factual dispute on this specific issue, and it would thus appear on

reconsideration that Clean Harbors was following their normal drug-related policy

regarding safety-sensitive positions.

Clean Harbors also asks the Court to reconsider whether Mr. Edwin might still be

protected by other portions of the company’s drug policies. Clean Harbors’ policy protects

an individual who suffers from “an alcohol or drug dependency” and who “voluntarily

come[s] forward to seek the assistance” of one of several experts for that dependency.

Rec. Doc. 71-2, Exhibit 3 at CH0169. Notably, Mr. Edwin does not clearly fit this policy

as he was not seeking help for dependency, but rather mentioned his drug use as he

sought to return to work because he was about to fail his drug test. In its previous ruling,

however, the Court had noted that this policy seemed to provide Clean Harbors with some

discretion and that they could have chosen not to fire Mr. Edwin. However, this finding

no longer appears accurate in light of the additional, undisputed information discussing

Clean Harbors’ consistent practice regarding positive drug screens for employees in

safety-sensitive positions. As such, it would appear that there is no longer a “conflict in

substantial evidence” that would show that Clean Harbors stated reason for terminating

Mr. Edwin, namely his failed drug test as he sought to return to work, was pretextual.

As a final note, Mr. Edwin argues that Clean Harbors failed to meet its policy by

investigating if his violation of the Alcohol and Drug Policy was “related to any disability

which Clean Harbors [had] a duty to accommodate.” Id. at CHO170. However, it is

undisputed that Clean Harbors did, in fact, review this issue, including the doctor’s note

discussing Mr. Edwin’s marijuana usage, but determined that terminating Mr. Edwin

remained the correct decision. Rec. Doc. 105-4, p. 190-191; Rec. Doc. 71-2, Exhibit 17

at CH0078. Thus, it appears that this policy would not protect Mr. Edwin either.

Ultimately, upon reconsideration, the Court agrees with Clean Harbors that Mr.

Edwin has not met his burden of proving that the decision to terminate Mr. Edwin for his

violation of the Alcohol and Drug Policy was pretextual. There are no facts to dispute the

contention that Clean Harbors had a consistent internal policy to terminate individuals in

safety-sensitive positions who violated the policy. As such, Mr. Edwin’s Title VII retaliation

claim should be dismissed.

IV. Conclusion

As a result of the foregoing analysis, Defendant's Motion for Reconsideration (Rec.

Doc. 122) is GRANTED. Therefore, Plaintiff's remaining claim for retaliation under Title

DISMISSED WITH PREJUDICE. The instant ruling dismisses Plaintiff's final claim

and the case is thus closed.

IT 1S SO ORDERED.

THUS DONE AND SIGNED, in Shreveport, Louisiana, on this 31st day of March,

2022.

on [pele /

S. MAURICE HICKS, JR., CHIEF JUD

UNITED STATES DISTRICT COURT

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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