Pierce v. Leidos Inc.

IN THE UNITED STATES DISTRICT COURT December 27, 2021

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

MARVIN PIERCE, §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. H-20-CV-3339

§

LEIDOS, INC., §

§

Defendant. §

MEMORANDUM AND OPINION GRANTING MOTION FOR

SUMMARY JUDGMENT

Marvin Pierce sued his employer, Leidos, Inc., alleging racial discrimination and

harassment, and retaliation for complaining, in violation of Title VII and 28 U.S.C. § 1981. Pierce

worked for Leidos or its predecessor, Lockheed Martin, starting in 2011. From 2017 to July 2019,

he worked as a Field Service Engineer Team Lead, assigned to work in Kuwait under a contract

between the government and Leidos. Pierce went on medical leave in July 2019, and he was still

on leave when the Leidos government contract under which Pierce worked ended in April 2021.

Leidos’s employees had to interview for a new position under the successor contract. Pierce did

not do so. The parties dispute whether Pierce was terminated.

This court previously dismissed Pierce’s claims that arose from the events he alleged

occurred before January 16, 2019, 300 days before Pierce filed his EEOC charge, as untimely

under Title VII. The court also dismissed Pierce’s claims that arose from failures to promote him

before 2018, 300 days before Pierce filed this lawsuit, as untimely under § 1981. Leidos has

moved for summary judgment on the remaining race discrimination, harassment, and retaliation

claims, and Pierce has responded. (Docket Entry Nos. 34, 35, 36). Based on the motion and reply,

the record evidence, and the governing law, this court grants the motion for summary judgment

and enters final judgment. The reasons are stated below.

I. Background

Pierce, who is African American, started working for Leidos—then Lockheed Martin—in

2011. (Docket Entry No. 35-12, at 2). Beginning in 2017, he worked in Kuwait as a “field service

engineer/team lead” under the supervision of Charles Soodavar, a regional manager, and Scott

Pisut, a program manager. (Docket Entry No. 34-1, at 10, 15). Soodavar had been Pierce’s direct

supervisor since 2015. (Docket Entry No. 35, at 7). Pierce’s job responsibilities under the contract

between Leidos and the Department of Defense included performance site surveys and site

maintenance visits, dealing with technology and communications issues, and securing and

accounting for government furnished equipment. (Docket Entry No. 34-1, at 9–11).

The parties dispute who—Pierce or Soodavar—started the unpleasant verbal exchanges

between them in 2019. (Docket Entry No. 34-1, at 168–69 (noting incidents starting in January

2019)). Pierce does not dispute that in December 2018, he received a performance review from

Soodavar for the year that rated his performance at 3 out of 5 and criticized aspects of his work.

(Docket Entry No. 34-1, at 155). Leidos also presents evidence that in February 2019, Pierce had

conversations about internal business matters with Leidos customers, who in turn expressed

concerns about these conversations to Soodavar, who in turn relayed them to Pisut. (Docket Entry

No. 34, at 4; Docket Entry No. 34-1, at 113–17, 147–48). Pierce does not dispute that the customer

interactions occurred, but he does dispute that they were “improper.” (Docket Entry No. 35, at 10;

Docket Entry No. 35-12, at 3).

In March 2019, Soodavar and Pierce had a scheduled telephone call about the 2018

performance review. The parties agree the exchange became unpleasant, but offer different

versions of the conversation. (Docket Entry No. 34-1, at 24; Docket Entry No. 34-1, at 149).

Leidos contends, and offers summary judgment evidence that, Pierce protested his performance

review, swore at Soodavor, and accused Soodavar of ruining his career. (Docket Entry No. 34-1,

at 164 (“Marvin was not at all happy about my feedback. His comments to me were extremely

disrespectful, unprofessional and insubordinate. In addition, from my seat, I view some of his

comments as potentially slanderous. Marvin made it very clear that he hated his job, hated working

for me and felt I had ruined his career. . . . He went on to criticize my management style, my

knowledge, questioned my integrity and went on to say many more hurtful and completely

fabricated innuendos.”); see also Docket Entry No. 34-1, at 149 (“To be quite honest, I have never

been more disrespected as Marvin was towards me on our performance phone call. His comments

were so unbelievably disrespectful and out of line.”); Docket Entry No. 34-1, at 166 (“I thought a

lot about my performance review call with Marvin last week and I continue to not be happy

thinking of all the untruthful and hurtful comments he made. In addition to what I described below,

Marvin came across as belligerent and his comments were downright verbally abusive.”)).

Pierce contends, and in his declaration states, that he “completely contradicted” the review

during the telephone call, but Pierce insists that it was Soodavor who “ridiculed and harassed”

Pierce and who used profanity. (Docket Entry No. 35-12, at 2; Docket Entry No. 34-1, at 24).

Pierce states that Soodavor falsely accused Pierce of having “reoccuring performance issues” and

of being “nonexistent in performing his duties throughout 2018.” (Docket Entry No. 35-12, at 3).

Pierce states that Soodavor was “bating [sic] Plaintiff by swearing, yelling, and admonishing him

for ‘not responding to anything.’” (Id.). Regardless of the conversation between Pierce and

Soodavar, Pierce received a salary increase after the performance review. (Docket Entry No. 34-

1, at 124).

The parties agree that the conversation ended with Soodavor stating that he would discuss

the phone call with Pisut and with Leidos’s Human Resources department. (Docket Entry No. 34,

at 5; Docket Entry No. 35, at 9; Docket Entry No. 34-1, at 122). When the Human Resources

representative, Julie Arney, called Pierce, he accused Soodavor of calling Arney as a preemptive

strike. Pierce complained about the performance review, and he gave his own “account” of the

customer interactions that had occurred in February 2019, not denying the interactions but

accusing Soodavor of fabricating them as improper. Pierce emphasized that he thought Soodavar

was not a good leader and that he had more experience than Soodavar. (Docket Entry No. 34-1,

at 171–72). In his summary judgment response, Pierce emphasizes the positive performance

reviews he received before 2018 (including 2015, 2016, and 2017, all under Soodavar’s direct

supervision), (see, e.g., Docket Entry No. 35-10), and Pierce describes himself as having such

“extraordinary capabilities and extensive experience” that Leidos relied heavily on him, and,

indeed, relied solely on him to “re-establish the ITV [‘In-Transit Viability’] footprint throughout

the Iraq Area of Operations….” (Docket Entry No. 35-12, at 2). Leidos presents evidence that

during his March 2017 conversation with Arney, after the exchange with Soodavar, Pierce did not

complain of racial discrimination or harassment. (Docket Entry No. 34-1, at 171–72 (detailing

“notes from [Arney’s] call with [Pierce] on 3/26”)); see also Docket Entry No. 34-1, at 28–29

(Pierce Deposition) (Q: “[B]efore this August 9th, 2019, email, had you said that people are treated

differently and say that it was because of race or color?” A: “Not to the—to the extent of race and

color.”)). Pierce asserts that the subjects of his call with Arney included “discriminatory

treatment” from Soodavar, but no details are provided. (Docket Entry No. 35, at 9).

Leidos assigned Angela Marquez, a Leidos senior Workplace Relations manager, to

investigate the customer interactions and the phone call between Soodavor and Pierce. (Docket

Entry No. 34-1, at 215 (noting that “a Leidos Workplace Relations case was opened on 17 April

2019 to investigate [Pierce’s] behavior as it pertains to the Leidos code of conduct, and . . . was

closed on 9 May 2019”)). She concluded that the contents of the customer conversations could

not be validated, although they did take place. (Docket Entry No. 34-1, at 195 (“[I]nvestigation

was able to validate there were conversations that took place between [Pierce] and the customer

on said dates, but [Pierce] provided a different version of the conversations. Without being able

to speak directly with the customer, the investigator was not able to validate the customer

allegations with certainty.”)). She also concluded that Pierce’s behavior and communications

during the March 2019 conversation were inappropriate. (Id. (“Investigation validated

inappropriate behavior and communications by [Pierce] during the performance review discussion

per [Pierce’s] own admission.”)).

A Corrective Action Review Committee was convened, consistent with Leidos’s

performance and disciplinary procedures. The Committee issued Pierce a Final Written Warning

and a Performance Improvement Plan. (Id. at 185, 207; see also id. at 210 (“The purpose of this

memorandum is to address issues regarding your continued inappropriate outbursts,

insubordination and unprofessional behavior.”)). “A Final Written Warning (FWW) does not

mean that [the employee has] received other written notice on that particular issue. It means that

if there is another occurrence of the offense that is described in the [written warning], that would

be [his] final warning, and further disciplinary action would likely occur.” (Docket Entry No. 35-

21).

In May 2019, Pierce was told of the actions, but refused to sign the documents. (Docket

Entry No. 34-1, at 197, 205; see also id. at 218 (warning Pierce that even if he did not sign, “the

PIP and written warning are still in effect”)). Pierce states in his summary judgment response that

he “signed the documents and was subjected to weekly PIP meetings thereafter,” but he cites to no

record evidence suggesting that he signed the documents or attended weekly meetings to discuss

performance objectives in the Plan. (Docket Entry No. 35, at 13). There was no salary reduction,

no change in title, no change in pay, and no change in work assignment. (Docket Entry No. 34, at

8; Docket Entry No. 34-1, at 25–26).

In June 2019, Pierce returned to Texas for family reasons, taking bereavement leave. When

that expired, he took a few days of vacation time, although he claims Soodavor objected to the

extended leave. Indeed, Soodavar replied to Pierce’s request:

As you are aware, I approved your original vacation dates, but didn’t see a request

for the extra 6 days, where you are combining bereavement leave and your vacation.

As much as I would like to support these extra 6 days, I have a hard time approving

them because I didn’t see the 6 extra days requested and we have many open actions

(especially with assets and missions) that we need to complete in support of our

program. In addition, you are currently on a 60 day PIP that will need to be

discussed and potentially adjusted, based on the time you will be on leave.

(Docket Entry No. 34-1, at 221 (email from Soodavar to Pierce)). Despite Soodavar’s hesitancy,

Pierce asked to telework and was given permission to do so. (Docket Entry No. 34-1, at 224–25;

Docket Entry No. 35-13, at 3).

While in Texas, Pierce began experiencing shortness of breath and chest pains. (Docket

Entry No. 34-1, at 227). Pierce contends that he suffered these symptoms because of stress caused

by Soodavar. He alleges that Soodavar continued to criticize him during the weekly meetings on

performance—although he again presents no record evidence that these weekly meetings

occurred—and that as a result of this “continued discriminatory and retaliatory behavior,” Pierce

suffered high blood pressure, anxiety, panic attacks, and depression. (Docket Entry No. 35, at 13).

Pierce has been on a medical leave of absence since July 2019.

After Pierce went on medical leave, Leidos sought to account for the government furnished

equipment that Pierce had been responsible for during his employment as a field service engineer

team leader. (Docket Entry No. 34-1, at 237, 270–71, 282). The evidence is that Leidos had to

locate the equipment and transfer responsibility for it to another field service engineer, and report

this to the government in routine monthly audits. The evidence is that Leidos did not timely or

sufficiently account for the over 388 pieces of equipment that were assigned to him. “[O]ver a

hundred” pieces of equipment “were not . . . where Mr. Pierce had said they were in the database.”

(Docket Entry No. 34-1, at 241; see also id. at 242 (“And I will point out that of the 388, you

know, minus the 49 that are not able to be located, that not all of them were where Mr. Pierce said

they should be. We found them in different countries. We found them in different places. . . . Mr.

Pierce’s asset database records were not up to date.”)). Leidos was able to “locate all but 49.” (Id.

at 242).

Pierce offers a different version, accusing Leidos of having the ability to easily change the

record to label Pierce as the responsible individual for equipment he did not have access to, in

order to hold him accountable for that equipment and use his difficulty in accounting for it as a

“pretext to refuse his return to work.” (Docket Entry No. 35, at 15). Pisut testified, however, that

“the assets were already in [Pierce’s] name,” that Leidos “ran a report based on the responsible

individual,” “pulled the record,” and “ask[ed] other [individuals] in Kuwait to locate those assets

that were already in Mr. Pierce’s name.” (Docket Entry No. 34-1, at 264).

Pierce argues as well that he did not have information about assets not in his physical

possession in the United States, and that he could only point to the Kuwait warehouse where he

thought they were located. (Docket Entry No. 35, at 15). He argues that he did what he could to

help Leidos locate the equipment. Leidos ultimately accounted for all but 49 pieces of equipment,

but ended up paying the government approximately $19,400 for the missing pieces. (Docket Entry

No. 34-1, at 257). Leidos was unable to provide an explanation for the missing equipment to the

government because “Mr. Pierce didn’t give [Leidos] an explanation. [Leidos’s] legal team asked

many, many times to try to get help from Mr. Pierce to try to find the missing assets, and . . . didn’t

get any data that would lend . . . any help to find them.” (Docket Entry No. 34-1, at 255; see also

id. at 257).

In May 2020, Pierce was cleared to return to work. (Docket Entry No. 35-12, at 5). He

argues that he was forbidden to return to work until he returned the missing assets, which he asserts

was a ploy to keep him from returning to work. (Id. (stating that “a pre-condition to discussions

regarding [his] return to work was the return of the missing assets.”)). Leidos asserts, however,

that “[u]nder the terms of the government contract with Leidos, so long as [Pierce] was on leave,

the government would temporarily defer adjudication of the location of the assets.” (Docket Entry

No. 34, at 16). Leidos deferred Pierce’s start date while trying to locate the 49 assets that remained

missing, until the issue was resolved through Leidos’s payment to government.

Pierce also asserts that Leidos simply charged off equipment that other field service

engineers could not account for. Soodavar testified, however, that only one other individual had

ever lost as many assets as Pierce, and that there were ramifications for those lost assets. (Docket

Entry No. 35-14, at 21). That individual “was placed under Performance Reviews,” but “ended

up resigning” as the company was “getting ready to place him on a [Performance Improvement

Plan].” (Id.). The company “place[d] a note in his employee profile to say that he should never

be hired again.” (Id. at 22).

In August 2019, while Pierce was on leave and after he had been issued the warning and

Final Performance Improvement Plan, Pierce emailed the “Leidos Hotline” and complained that

“as an African American United States Army veteran,” he “ha[d] been racially discriminated

against on numerous occasions in regards to job promotions/advancement, code of conduct,

corporate policy violations, and job performance on a program where there are no African

American managers.” (Docket Entry No. 34-1, at 275). Pierce alleges that there was no

investigation of his allegations. (Docket Entry No. 35, at 14). Leidos presents evidence, however,

that when “[i]nvestigators attempted to speak with Mr. Pierce” about his discrimination allegation,

“he refused to be interviewed,” and “his personal attorney . . . indicated that he was pursuing

remedy through legal channels.” (Docket Entry No. 34-1, at 279).

It is undisputed that the subcontract between Leidos and the government under which

Pierce had worked terminated in April 2021, and Leidos became a subcontractor to a successor

government contract. (Docket Entry No. 34-1, at 258). Pierce argues that Leidos used this change

as a pretext to require him to reapply for a position under the successor contract, while other field

service engineers were “rebadged to continue working under the new prime contractor and had no

gap in employment.” (Docket Entry No. 35, at 16). Pierce argues that this was further retaliation.

Leidos responds that there were three field service engineers, including Pierce, who did not

make the transition to the new contract because they were on active leave of absence when the

change occurred. (Docket Entry No. 34-1, at 260). All other employees had to “interview[] for

the positions to make sure that the [new prime contractor] was comfortable with their skills and

capabilities[,] [a]nd then they were made offers.” (Id. at 261). Pierce has not interviewed for any

new position. (Id.). Leidos maintains that Pierce remains on leave of absence; he has not been

terminated, but he does not have a current position under a current contract. (Docket Entry No.

34, at 17; Docket Entry No. 36, at 5 (“Plaintiff was provided the opportunity to bid on any open

job at Leidos, but refused (and refuses to this day). . . . If he were to bid on and obtain another

position, he may still be accountable for the [Performance Improvement Plan] that was suspended

during his leave.”)). Pierce claims that, “as far as [he] know[s], [he was] terminated.” (Docket

Entry No. 34-1, at 7).

Pierce filed this lawsuit in 2020. He alleged discrimination, harassment, and retaliation,

beginning in 2017, primarily from the person who had been his supervisor since 2015, Soodavar.

(Docket Entry No. 1). The court dismissed several of his claims as time barred, but retained claims

of instances of “push back” in 2015 and “increased combativeness” in 2017 from Soodavar, and

“increased combativeness from . . . white counterparts” in 2017 and 2018, because they were

neither specific nor discrete acts and could not be dismissed as barred by limitations. The court

noted then that the remaining claims of discrimination, harassment, and retaliation might be subject

to other challenges. (Docket Entry No. 24). After discovery, Leidos raised those challenges,

moving for summary judgment on all claims.

Each claim is analyzed below.

II. The Legal Standards

A. Summary Judgment

“Summary judgment is appropriate only when ‘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.’” Shepherd on Behalf of Estate of Shepherd v. City of Shreveport, 920 F.3d 278, 282–83 (5th

Cir. 2019) (quoting Fed. R. Civ. P.56(a)). “A material fact is one that might affect the outcome of

the suit under governing law,” and “a fact issue is genuine if the evidence is such that a reasonable

jury could return a verdict for the non-moving party.” Renwick v. PNK Lake Charles, L.L.C., 901

F.3d 605, 611 (5th Cir. 2018) (quotations and citations omitted). The moving party “always bears

the initial responsibility of informing the district court of the basis for its motion,” and identifying

the record evidence “which it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

“Where the non-movant bears the burden of proof at trial, ‘the movant may merely point

to the absence of evidence and thereby shift to the non-movant the burden of demonstrating that

there is an issue of material fact warranting trial.’” Kim v. Hospira, Inc., 709 F. App’x 287, 288

(5th Cir. 2018) (per curiam) (alteration omitted) (quoting Nola Spice Designs, L.L.C.

v. Haydel Enters. Inc., 783 F.3d 527, 536 (5th Cir. 2015)). The moving party must demonstrate

the absence of a genuine issue of material fact, but it need not negate the elements of the

nonmovant’s case. Austin v. Kroger Tex., L.P., 864 F.3d 326, 335 (5th Cir. 2017) (per curiam).

“If the moving party fails to meet [its] initial burden, the motion must be denied, regardless of the

nonmovant’s response.” Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir.

2014) (quoting Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001)).

“When the moving party has met its Rule 56(c) burden, the nonmoving party cannot

survive a summary judgment motion by resting on the mere allegations of its pleadings.” Bailey

v. E. Baton Rouge Parish Prison, 663 Fed. App’x 328, 331 (5th Cir. 2016) (quoting Duffie v.

United States, 600 F.3d 362, 371 (5th Cir. 2010)). The nonmovant must identify specific evidence

in the record and articulate how that evidence supports that party’s claim. Willis v. Cleco Corp.,

749 F.3d 314, 317 (5th Cir. 2014). “A party cannot defeat summary judgment with conclusory

allegations, unsubstantiated assertions, or only a scintilla of evidence.” Lamb v. Ashford Place

Apartments L.L.C., 914 F.3d 940, 946 (5th Cir. 2019) (quotation omitted).

In deciding a summary judgment motion, “the evidence of the nonmovant is to be believed,

and all justifiable inferences are to be drawn in his or her favor.” Waste Mgmt. of La., L.L.C. v.

River Birch, Inc., 920 F.3d 958, 972 (5th Cir. 2019) (alterations omitted) (quoting Tolan v. Cotton,

572 U.S. 650, 651 (2014) (per curiam)). “When opposing parties tell two different stories, one of

which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court

should not adopt that version of the facts for purposes of ruling on a motion for summary

judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

B. Title VII

1. Discrimination

Under Title VII, a plaintiff may show discrimination in response to a summary judgment

motion using either direct or circumstantial evidence. Russell v. McKinney Hosp. Venture, 235

F.3d 219, 222 (5th Cir. 2000). Direct evidence proves the fact in question without inference or

presumption. Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003) (citations

omitted), overruled on other grounds by Smith v. Xerox Corp., 602 F.3d 320, 330 (5th Cir.

2010). When, as here, the evidence is circumstantial, the court uses the McDonnell

Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–

03 (1973). The plaintiff alleging discrimination must make a prima facie showing that: (1) he is a

member of a protected class; (2) he was qualified for the position; (3) he was subjected to an

adverse employment action; and (4) others similarly situated but outside the protected class

experienced more favorable treatment. Id.; see also Septimus v. Univ. of Houston, 399 F.3d 601,

609 (5th Cir. 2005).

The Fifth Circuit has applied the fourth element strictly, so that a plaintiff must show that

his employer treated similarly situated employees more favorably in “nearly identical

circumstances.” Reed v. Brady Trucking, Inc., No. CV H-18-4437, 2019 WL 1244100, at *11

(S.D. Tex. Mar. 18, 2019) (citation omitted) (emphasis omitted); see also Little v. Republic

Refining Co., 924 F.2d 93, 97 (5th Cir. 1991) (“To establish a claim of disparate treatment, [the

plaintiff] must show that [the employer] gave preferential treatment . . . under ‘nearly identical’

circumstances.” (quoting Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir.1990)

(per curiam))).

Once the plaintiff has addressed these four elements, the burden shifts to the defendant to

explain how the adverse employment action was nondiscriminatory. If the defendant proffers

a nondiscriminatory basis for the action, then the plaintiff must point to evidence raising a fact

dispute as to whether (1) the explanation is a pretext for discrimination or (2) there are mixed

motives—the employer’s explanation, while true, is only one factor in the decision, and

discrimination is another. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004). The

plaintiff must show a genuine factual dispute material to deciding whether the defendant

discriminated on the basis of the plaintiff's membership in a protected class. Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Tex. Dep't of Cmty. Affairs v. Burdine,

450 U.S. 248, 253 (1981)).

“[The Fifth Circuit] precedent recognizing only ‘ultimate employment decisions’ as

actionable adverse employment actions remains controlling for Title VII discrimination claims[.]”

Mitchell v. Snow, 326 F. App’x. 852, 855 (5th Cir. 2009) (quoting McCoy v. City of Shreveport,

492 F.3d 551, 560 (5th Cir. 2007)). “[A]dverse employment actions include only ultimate

employment decisions such as hiring, granting leave, discharging, promoting, or

compensating.” Id. at 854 (quoting McCoy, 492 F.3d at 559).

2. Retaliation

Title VII makes it unlawful for an employer to “discriminate against any of his employees

. . . because [the employee] has opposed any practice made [] unlawful . . . by this subchapter, or

because [the employee] has made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). A plaintiff

must point to facts showing that: (1) he engaged in a protected activity; (2) he was subjected to an

adverse employment action; and (3) there is a causal link between the protected activity and the

adverse employment action. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir.

2004). The third element, causation, requires the plaintiff to point to evidence showing that the

adverse employment action would not have occurred but for the protected conduct. See Septimus,

399 F.3d at 608.

Once the plaintiff makes this showing, the defendant has the burden of proffering a

legitimate, nonretaliatory explanation for the adverse employment action. See id. at 609. If the

defendant does so, the burden shifts back to the plaintiff to raise a factual dispute material to

determining whether the articulated reason for the employment action was a pretext for

retaliation. Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001).

3. Hostile Work Environment

To establish a hostile-work-environment claim under Title VII, a plaintiff must prove that:

(1) [he] belongs to a protected group; (2) [he] was subjected to unwelcome

harassment; (3) the harassment complained of was based on race; (4) the

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

[and] (5) the employer knew or should have known of the harassment in question

and failed to take prompt remedial action.

Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (quoting Ramsey v.

Henderson, 286 F.3d 264, 268 (5th Cir. 2002)); Collier v. Dallas Cnty. Hosp. Dist., 827 F. App’x

373, 377 (5th Cir. 2020) (quoting Hernandez, 670 F.3d at 644). The harassment must be

“sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

abusive working environment,” and it cannot be “measured in isolation.” Ramsey, 286 F.3d at 268

(citations omitted).

To determine whether a work environment is actionably hostile, “all of the circumstances

must be taken into consideration,” such as “the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work performance.” Hernandez, 670 F.3d

at 651 (citation omitted). “[T]he work environment must be ‘both objectively and subjectively

offensive, one that a reasonable person would find hostile or abusive, and one that the victim in

fact did perceive to be so.’” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787

(1998)). Moreover, “[t]he alleged conduct must be more than rude or offensive comments [or]

teasing.” Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 326 (5th Cir. 2004). “These

standards for judging hostility are sufficiently demanding to ensure that Title VII does not become

a ‘general civility code.’” Faragher, 524 U.S. at 788 (citation omitted).

The Fifth Circuit has not recognized a separate cause of action for a retaliatory hostile-

work-environment. See Montgomery-Smith v. George, 810 F. App'x 252, 258 (5th Cir.

2020). But other circuits have recognized the claim, and courts on the Fifth Circuit have assumed

that the claim could be cognizable. See id.; see also Zavala v. Carrollton-Farmers Branch Indep.

Sch. Dist., No. 3:16-CV-1034-D, 2017 WL 274133, at *2 (N.D. Tex. Jan. 20, 2017); Boudreau v.

Nokia of Am. Corp., No. 3:19-CV-01623-E, 2020 WL 7426155, at *6 (N.D. Tex. Dec. 18, 2020)

(collecting cases). District courts in this circuit follow a modified approach to addressing

retaliatory hostile-work-environment claims, under which “the first element [requires] proof that

the plaintiff had engaged in a protected activity, and the third element [requires] demonstration of

a causal connection between the harassment and the protected activity.” Zavala, 2017 WL 274133,

at *3.

III. Analysis

A. The Title VII Discrimination Claim

Pierce alleges that Leidos, primarily through Soodavar, discriminated against him and

subjected him to adverse treatment and a hostile work environment based on his race, and retaliated

against him for complaining, in violation of Title VII. Much of what Pierce presents as evidence

of racial discrimination does not amount to an adverse employment action. None of what he

presents is sufficient to support an inference of racially disparate treatment or actionable

harassment.

Pierce is African American and he is qualified for his position. He has established the first

and second prongs of the prima facie test. Pierce asserts that he noticed a “lack of respect and an

overall disregard for his title as Team Lead from white employees, including continuing

undermining of his authority by Mr. Soodavar” by making himself the only supervisor who could

discipline an employee. (Docket Entry No. 35, at 7). A white male subordinate also undermined

Pierce’s authority by reporting directly to Soodavar. (Id.). In 2018, Soodavar, the same supervisor

who had favorably reviewed Pierce’s work for three years, from 2015 to 2017, “intentionally [gave

Pierce] a negative evaluation and reprimands.” (Id.). Pierce does not allege any diminution in job

title, duties, compensation, or other terms of employment as a result. He got his expected 2018

bonus. (Docket Entry No. 34-1, at 124).

Pierce does not identify summary judgment evidence showing that the evaluation reduced

or otherwise affected his job duties, compensation, or benefits. He received a job evaluation rating

of 3 out of 5, and criticisms of aspects of his job performance. (Docket Entry No. 34-1, at 155–

58). A negative performance review, with no accompanying negative impact on compensation or

job duties, is not an adverse employment action. Thompson v. City of Waco, 764 F.3d 500, 503

(5th Cir. 2014); Alkhawaldeh v. Dow Chem. Co., 8 51 F.3d 422, 427, n.19 (5th Cir. 2017).

While Pierce disputes that he deserved anything but robust and profuse praise and thanks

for his work, he does not point to evidence sufficient to show that the criticisms were adverse

employment actions. Nor does he point to anything but prior good reviews and his own subjective

belief that his work was excellent, and that he would be better as the supervisor than Soodavar. A

subjective belief is not sufficient to show that a verbal reprimand for poor performance or a or

poor review is actionable. See Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 826 (5th Cir.

2019). In fact, there is evidence that Soodavar gave Pierce a higher performance review than was

deserved. Pisut wrote, in an email to Julie Arney, that “[i]n all honesty, Charles [Soodavar] could

(and in hindsight probably should have) [] rated Marvin [Pierce] a 2 for the 2018 performance

year, but he gave him the benefit of the doubt, and rated him a 3 with the hope that [Pierce] would

take the constructive feedback and improve in the areas that [were] lacking.” (Docket Entry No.

34-1, at 160).

The evidence as to the March 2019 telephone exchange between Pierce and Soodavar is

notable for the description of profanity, insults, and unprofessional statements by both participants.

Soodavar asserts that Pierce accused him of ruining Pierce’s career and used the word “fuck.”

Pierce asserts that Soodavar unjustly criticized Pierce’s work and “bated” Pierce by generally

swearing and yelling at him for “not responding” to Soodavar’s criticisms. (Docket Entry No. 35,

at 8). There is no evidence of any racial epithets by either side. Nor is there evidence of racial

terms at all in the parties’ many discussions. There is evidence that the relationship between

Soodavor and his subordinate employee, Pierce, deteriorated, clearly after the 2018 performance

review was issued, but no evidence that it deteriorated because of racial animus.

The fact that Pierce was placed on a Performance Improvement Plan and a written warning

is not sufficient to raise a factual dispute material to determining racially discriminatory treatment.

The evidence shows that Pierce had customer communications in February 2019 that led to

customer comments to Soodavar. (Docket Entry No. 34-1, at 113–17, 147–48). Leidos

investigated these communications as well as the March 2019 phone call with Soodavar. The

investigation did not verify the content of the customer communications, because Pierce disputed

them as improper. (Docket Entry No. 34-1, at 195). The investigation did substantiate Pierce’s

unprofessional and insubordinate behavior toward Soodavar in the telephone review of Pierce’s

2018 performance evaluation. Id. Pierce has not identified record evidence that he was subjected

to an arbitrary investigation, particularly given the fact that the investigation did not fault him for

the customer communications. Pierce’s subjective view of the quality of his performance in 2018

does not raise a fact issue that Soodavar was motivated by racial bias in his criticism and

evaluation. Raina v. Veneman, 152 F. App’x 348, 350 (5th Cir. 2005) (“An employee’s subjective

belief that he was discriminated against, standing alone, is not adequate evidence to survive a

motion for summary judgment.”); Jones v. Gulf Coast Rest. Grp., Inc., 8 F.4th 363, 369 (5th Cir.

2021). Nor has Pierce identified record evidence that the Performance Improvement Plan or Final

Warning were the result of racially disparate discipline or harassment, rather than of Leidos’s

disciplinary procedures for performance issues, unprofessional communications, or

insubordination. See Lamb, 914 F.3d at 946 (“A party cannot defeat summary judgment with

conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” (quotation

omitted)).

The fact that Leidos investigated and could not verify the contents of the customer

conversations with Pierce undermines his argument that the investigation was unfair or in bad

faith. The absence of conclusive evidence that Pierce violated Leidos’s code of conduct by

improperly discussing internal business affairs with customers is insufficient to prove improper

discipline. The central question in determining if discipline — including a Performance

Improvement Plan or a Final Written Warning, and even termination — is proper is not whether

the employee actually engaged in prohibited conduct, but whether the employer believed so in

good faith. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (“[E]ven an

incorrect belief that an employee’s performance is inadequate constitutes a legitimate,

nondiscriminatory reason. We do not try in court the validity of good faith beliefs as to an

employee’s competence.”) (quoting Little v. Republic Refining Co., Ltd., 924 F.2d 93, 97 (5th Cir.

1995)). The record evidence shows that Leidos had a reasonable basis for concern over Pierce’s

unprofessional communications with customers and with his supervisor. (See, e.g., Docket Entry

No. 34-1, at 149, 164, 166, 195). The voluminous summary judgment record reflects detailed

documentation of the Performance Improvement Plan and the Written Final Warning. It also

reflects that if he completed the Performance Improvement Plan steps, he would suffer no work

repercussions. (Docket Entry No. 34-1, at 207–08).

Pierce’s bereavement and subsequent extended personal leave and medical leave do not

support his claim of unfavorable or disparate treatment. The fact that Soodavar opposed the leave

is not an adverse employment action or evidence of disparate treatment; Leidos granted Pierce’s

leave requests. (Docket Entry No. 35-13, at 3). Pierce was on leave until the contract under which

Pierce had work terminated during his leave. (Docket Entry No. 34-1, at 258; Docket Entry No.

36, at 5). While Pierce asserts that other field service engineers employed under the same contract

were permitted to transfer to the successor contract, (Docket Entry No. 35, at 16), Leidos presents

undisputed evidence that field service engineers had to “interview for the [new] positions” when

the first contract terminated. (Docket Entry No. 34-1, at 261). Pierce did not apply for any other

jobs since going on medical leave. (Docket Entry No. 34-1, at 30–31).

The evidence as to the efforts to find the equipment that Pierce was responsible for is not

evidence of an adverse employment action or discrimination. Pierce alleges that Leidos falsely

allocated the missing assets to him, (Docket Entry No. 35, at 25), but provides no evidence other

than a statement by Pisut that it was “possible” that “assets that were in Mr. Pierce’s name could

have been moved into his name by the prior responsible individual” for those assets. (Docket

Entry No. 35-5, at 6 (Q: “[I]t is possible, then, that the assets that were in Mr. Pierce’s name could

have been moved into his name by the prior responsible individual, correct? A: “If there was one.

I suppose that’s a possibility.”)). Pierce does not present any evidence that the 388 pieces of

equipment assigned to Pierce were in fact falsely assigned to him by prior responsible individuals,

and he does not dispute that the records ascribed the 388 missing pieces to him. (Docket Entry

No. 34-1, at 264).

Pierce does not dispute Leidos’s evidence that if it did not account for the equipment during

regular government audits, it would face financial and other penalties. Pierce denies that he should

have or could have done more than he did, which was to relay his belief that the equipment was in

a warehouse in Kuwait. (Docket Entry No. 35, at 15 (“[G]iven that he was still in the United States

on medical leave, he could only point to where he believed the remaining assets were located in

Kuwait.”)). Pierce similarly does not dispute that after a prolonged search, Leidos located all but

$19,400 worth of the equipment and that Leidos had to pay the government that amount. (Docket

Entry No. 34-1, at 257). Pierce asserts that when other employees left and could not account for

equipment, “the items were just ‘written off.’” (Docket Entry No. 35, at 15 (quoting Docket Entry

No. 35-14, at 22)). This is consistent with Leidos also having to pay the government for missing

equipment. (Docket Entry No. 34-1, at 257 (“There’s times when you miss an item, you lose an

item, and the government just turns around and writes them off. And then other times, they want

all kinds of investigations done; they want the contracting office involved; they want everything

else involved.”)). And there is no evidence that Pierce was disciplined or terminated because of

the difficulty in locating the equipment he was responsible for when he began his leave. The

evidence in the record supports Leidos’s assertion that it deferred Pierce’s start date after he was

ready to return from medical leave while they tried to locate the remaining 49 assets so that “the

government would temporarily defer adjudication of the location of the assets,” (Docket Entry No.

34, at 16; Docket Entry No. 34-1, at 264–66), and that Pierce’s position ended when the subcontract

between the government and Leidos ended in April 2021. (Docket Entry No. 34-1, at 258).

The parties dispute whether Pierce’s present status is as a terminated employee or an

employee on active medical leave who has to reapply to be able to work under Leidos’s successor

contract with the government. The court need not resolve this dispute to resolve this motion. Even

viewing Pierce’s status as terminated, or viewing the requirement that he reapply to work under

the successor contract as an adverse employment action, Leidos has submitted competent summary

judgment evidence of its legitimate business reasons. Leidos was concerned about Pierce’s

conduct, based on reports of his conversations with Leidos customers, followed by the telephone

conversation with Soodavar. Leidos’s investigation verified that Pierce was unprofessional and

insubordinate on the telephone conversation. Soodavar had other concerns about Pierce’s

performance, although his three out of five rating qualified him for a raise. Leidos had a code of

conduct requiring employees “to maintain a respectful workplace.” (Docket Entry No. 34-1, at

14). Finally, after Pierce began his leave, he could not promptly or completely account for the

equipment he was responsible for. Pierce has not met his burden of showing that placing him on

a Performance Improvement Plan, giving him a Final Written Warning, deferring his return to

work until the equipment issues were resolved, and requiring him to reapply after the contract he

was employed under expired during his active medical leave, were pretexts for, or motivated by,

racial discrimination. Jones, 8 F.4th at 369 (“‘Merely disputing’ the employer’s assessment of the

plaintiff’s work performance ‘will not necessarily support an inference of pretext.’” (quoting

Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408 (5th Cir. 1999)).

The record does not show that similarly situated employees outside Pierce’s protected class

received more favorable treatment. See Reed, 2019 WL 1244100, at *11 (citing Okoye v. Univ. of

Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001)). Although he offered the names

of five, and perhaps six, comparators, none of these non-African-American Field Services

Engineers was similarly situated. None was an “FSE Team Lead,” and none had the same

supervisor as Pierce. (Docket Entry No. 34, at 16, 22; Docket Entry No. 34-1, at 37–45). The

conduct Pierce describes as to each of these other Field Service Engineers was either different

from Pierce’s conduct (such as issues with personal expenses or car accidents), or was based on

exchanges with Soodavar that Pierce did not witness or hear. (Docket Entry No. 34, at 17; Docket

Entry No. 34-1, at 37–45). And the evidence shows—from Pierce’s own testimony—that two of

the Field Service Engineers who Pierce identified as either argumentative with Soodavor or having

improper customer conversations were “phased out” or reassigned. (Docket Entry No. 34-1, at 39,

45).

The record does not support an inference that Pierce was treated less favorably than

similarly situated coworkers. Pierce has not raised a factual dispute material to his discrimination

claim. Summary judgment is granted as to this claim.

B. The Retaliation Claim

Pierce alleges that Leidos retaliated against him after he complained about racial

discrimination by initiating reviews and discipline culminating in his extended leave and

requirement to reapply for employment. To survive summary judgment on this claim, Faucette

must point to evidence showing that: (1) he engaged in a protected activity during the relevant

time period; (2) he was subjected to an adverse employment action; and (3) there is a causal link

“between the protected activity and the adverse employment action.” Davis, 383 F.3d at 319.

Pierce asserts that he raised “discriminatory treatment” by Soodavar in his conversation

with Arney after the conversation about his 2018 performance review. Leidos denies that Pierce

did so in that conversation, but acknowledges that Pierce made a complaint of “race

discrimination” in his August 9, 2019, email to the Leidos Ethics Hotline. This is long after Pierce

had been placed on a Performance Improvement Plan, given a Final Written Warning, and had

received criticism over his inability to promptly and completely account for the assets he was

responsible for. Even if Pierce made a general reference to discrimination in his April 2017

conversation, it is clear that the bulk of his complaint was over Soodavar’s overall deficiencies as

a supervisor. (Docket Entry No. 34-1, at 171–72). A plaintiff alleging retaliation may satisfy the

causal connection element by showing close timing between an employee's protected activity and

an adverse action against him.” Feist v. La, Dep't of Justice, Office of the Att’y. Gen., 730 F.3d

450, 454 (5th Cir. 2013) (quotation and alteration omitted). The temporal proximity must

generally be “very close.” Id. (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74

(2001)). The more attenuated in time, the more other evidence of discrimination is required to

show retaliation. See id. at 454–55; see also Lavergne v. Univ. of Texas Med. Branch, No. H-19-

1992, 2020 WL 5083465, at *7 (S.D. Tex. July 31, 2020) (courts consider “indicia of causation,”

such as an employee’s disciplinary record, the employer’s adherence to its own policies and

procedures in carrying out the job termination, and the temporal proximity between the protected

activity and the adverse employment action.).

The timing here is neither strongly probative of Pierce’s claim or of Leidos’s defense. But

there are ample grounds for finding events and facts that break the claimed causal chain between

complaints of racial discrimination and the alleged retaliation. The lowered performance review

and Soodavar’s decision to contact Human Resources about his conversation with Pierce preceded

any alleged complaint of racial discrimination. The Performance Improvement Plan and Final

Written Warning came after Pierce’s alleged—albeit generalized—mention of discrimination, as

well as generally harsh treatment by Soodavar, in the telephone call with Arney that focused on

Pierce’s criticism of Soodavar’s management skills. But these disciplinary steps also followed the

reports of the improper customer interactions and the unprofessional telephone conversation with

Soodavar. The Workplace Relations Investigation that Marquez conducted validated the

unprofessional nature of Pierce’s side of that conversation. (Docket Entry No. 34-1, at 195

(“Investigation validated inappropriate behavior and communications by [Pierce] during the

performance review discussion per [Pierce’s] own admission.”)).

The record supports Leidos’s compliance with its policies and procedures for investigations

and implementing disciplinary steps. (See, e.g., Docket Entry No. 34-1, at 144, 185). Leidos’s

arguments find sufficient support in the record to be persuasive. Pierce has not pointed to evidence

supporting a causal link between his protected activity and the employment challenged actions.

He primarily relies on conclusory allegations and statements he made in his own deposition and

affidavit. Leidos has pointed to documented, legitimate, nondiscriminatory reasons for the

disciplinary steps, the deferred return to work after medical leave, and the requirement that Pierce

reapply for employment. The court grants summary judgment on this claim.

C. The Hostile Work Environment Claim

Pierce does not explicitly raise a hostile work environment claim, but to the extent he

asserts a retaliatory hostile work environment claim, there is no evidence of any discriminatory

conduct or comments made by any Leidos employee toward Pierce. The evidence at most shows

that Pierce (as well as some other field service engineers who he tried to identify as comparators)

found Soodavar a difficult supervisor. (Docket Entry No. 34-1, at 37-45; Docket Entry No. 35-

19, at 2-8). The evidence shows that Pierce viewed Soodavar as an incompetent manager who did

not sufficiently recognize Pierce’s accomplishments and contributions, and that Soodavar

perceived Pierce as disrespectful and insubordinate. (See e.g., Docket Entry No. 34-1, at 168).

The allegations and evidence do not include racially charged statements. The record evidence

does show that Pierce was evaluated, criticized, and questioned, but all within the limits of the

employment relationship. Given the evidence, the court is not required to accept Pierce’s

conclusory statements about harassment at face value. Scott, 550 U.S. at 380; Jones, 8 F.4th at

369.

Pierce has not shown a factual dispute material to resolving his retaliation claim. Summary

judgment is granted on this claim.

IV. Conclusion

Leidos’s motion for summary judgment, (Docket Entry No. 23), is granted. Final judgment

is entered by separate order. Each party is to bear its own costs.

SIGNED on December 27, 2021, at Houston, Texas

LU. Cn To

Lee H. Rosenthal

Chief United States District Judge

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