Herring v. Renewable Energy Systems Americas,Inc.

UNITED STATES DISTRICT COURT July 11, 2023

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

CHARLES OTIS HERRING, et al., §

§

Plaintiffs. §

§

V. § CIVIL ACTION NO. 4:21-cv-00260

§

RENEWABLE ENERGY SYSTEMS §

AMERICAS, INC., et al., §

§

Defendants. §

MEMORANDUM AND RECOMMENDATION/ORDER

Pending before me are a number of outstanding motions. PeopleReady, Inc.

(“PeopleReady”) and Renewable Energy Systems Americas, Inc. (“RES”)

(collectively, “Defendants”) have each filed a motion for summary judgment. Dkts.

56, 58. Plaintiff Charles Otis Herring (“Herring”) has filed a motion to strike

summary judgment evidence (Dkt. 60), a request to supplant a witness affidavit

(Dkt. 67), and a motion for leave to file a new response to the summary judgment

motions (Dkt. 70). RES moves to strike and objects to certain summary judgment

evidence submitted by Herring (Dkt. 64), and both defendants move to strike

Herring’s sur-replies to their summary judgment motions (Dkts. 72–73).

BACKGROUND

PeopleReady is a temporary employment service. RES is a renewable energy

company. PeopleReady and RES entered a temporary staffing agreement whereby

PeopleReady would provide contract workers for construction of an RES solar

farm. In September 2019, Herring, a black man, started work at this solar farm.

Herring was initially assigned to the Tracking Crew’s Elevation Team, where he

and his fellow workers ensured that the torque tube assemblies were properly

aligned and raised. When PeopleReady employee Justin Thompson (“Thompson”)

referred to Herring as an “old nigger,” Herring complained to RES field supervisor

Pat Gallardo (“Gallardo”)1 and PeopleReady liaison officer Mo Avalos (“Avalos”).

Dkt. 59-3 at 10. He was subsequently reassigned to work on the motor mount crew.

In this new role, Herring was required to assist in lifting heavy steel tubes. On

October 17, 2019, one of the steel tubes that Herring was attempting to lift fell on

his shoulders, resulting in serious personal injuries. This lawsuit followed.

Herring and his wife, Pamela Gary Herring (“Ms. Herring”), representing

themselves pro se, originally filed this lawsuit against RES and PeopleReady in

Texas state district court. Plaintiffs’ Original Petition asserts negligence and gross

negligence causes of action arising out of the injury that Herring sustained while

working at the solar farm.

RES timely removed this case to federal court on the basis of diversity

jurisdiction. I later allowed Plaintiffs to file a Supplemental Complaint, adding a

claim for racial discrimination under 42 U.S.C. § 1981. Defendants moved to

dismiss the § 1981 claim, and I recommended that Defendants’ motions be granted

in part and denied in part. In particular, I held that Ms. Herring’s § 1981 claim

should be dismissed, and that Herring’s § 1981 claim survive the pleading stage.

Defendants now move for summary judgment on all of Plaintiffs’ claims. Before I

reach the merits though, I must address a host of evidentiary and briefing issues

to determine what I will consider in analyzing Defendants’ summary judgment

motions.

EVIDENTIARY/BRIEFING ISSUES

A. HERRING’S MOTION TO STRIKE SUMMARY JUDGMENT EVIDENCE

(DKT. 60)

Herring moves to strike summary judgment evidence that addresses

“previous litigation efforts” by Herring in this district. Dkt. 60 at 2. RES first argues

that “[i]t is unclear what specific evidence Plaintiffs seeks to strike, as the same is

not specifically identified in Plaintiffs’ Motion.” Dkt. 65 at 1. RES knows good and

1 RES states that the man identified by Herring as “Pat Guajardo” is actually named

“Patrick Gallardo.” Dkt. 58 at 11–12.

well the evidence to which Herring is referring because RES goes on to discuss said

evidence throughout its response. See id. at 2 (discussing Dkt. 58 at 26 n.105, Dkt.

58-9). RES also highlights that “the facts cited in Note 105 are the same as those

referenced in [PeopleReady’s] Motion for Summary Judgment . . . to which

[Herring has] lodged no objection,” and that “the evidence presumably referred to

by [Herring] will still be before the Court for consideration.” Id. But Herring has

objected to this evidence, and quite thoroughly. See Dkt. 83 at 10–11. (objecting to

PeopleReady’s exhibits D and I “on the grounds that they are not relevant” and “the

prejudicial impact of their inclusion outweighs any probative value which they

could ever possess”). I agree with Herring.

RES and PeopleReady do not seek to present evidence of Herring’s other

litigation efforts for permissible reasons, such as establishing issue or claim

preclusion. Even if such evidence were permissible, it would, at best, be evidence

for the trier of fact to weigh in assessing Herring’s credibility. But in no way does

Herring’s familiarity with the litigation process or his prior claims in other cases

demonstrate that Defendants are entitled to judgment as a matter of law at the

summary judgment stage of this litigation. Accordingly, evidence of Herring’s

familiarity with the litigation process and proceedings in other cases he has

instituted are wholly irrelevant to the merits of Defendants’ summary judgment

motions in this case. Thus, Herring’s motion to strike (Dkt. 60) is GRANTED.

B. RES’S MOTION TO STRIKE SUMMARY JUDGMENT EVIDENCE (DKT. 64)

1. Declaration of Jaylon Tolbert

In support of his response to RES’s motion for summary judgment, Herring

filed a witness declaration by Jaylon Tolbert (“Tolbert”). See Dkt. 59-3 at 12–13. In

the declaration, Tolbert swears under penalty of perjury that he was employed at

the solar farm where Herring was injured from “September 2019 through

December 2020” and “witnessed when [Herring] was injured” on October 17, 2019.

Id. at 12. RES moves to strike this declaration as fraudulent. See Dkt. 64 at 4–7. In

doing so, RES has conclusively demonstrated that Tolbert did not begin work at

the solar farm where Herring was injured until December 2019, nearly two months

after Herring’s injury. See Dkt. 66-1 at 6. Given this timeline, Herring now admits

that “Mr. Tolbert did not have personal knowledge of the facts to which he attests.”

Dkt. 74 at 1. Herring requests “to opportunely withdraw Mr. Tolbert’s prior

declaration.” Id. I understand Herring’s desire for Tolbert’s declaration to be

“nullified” (Dkt. 67 at 2), but I cannot and will not overlook perjury. See Dickinson

v. Wainwright, 626 F.2d 1184, 1186 (5th Cir. Unit B 1980) (“One who subscribes

to a false statement under penalty of perjury pursuant to [28 U.S.C. § 1746] may

be charged with perjury under [18 U.S.C. § 1621], just as if the statement were

made under oath.”). Accordingly, RES’s motion to strike the perjurious declaration

of Jaylon Tolbert (Dkt. 64) is GRANTED.

2. Herring’s Affidavit

Herring swore out an affidavit in support of his response in opposition to

RES’s motion for summary judgment. See Dkt. 59-3 at 10–11. RES moves to strike

portions of this affidavit, arguing that it “includes conclusory statements, legal and

medical conclusions, speculation and hearsay.” Dkt. 64 at 2.

“An affidavit or declaration used to support or oppose a motion must be

made on personal knowledge, set out facts that would be admissible in evidence,

and show that the affiant or declarant is competent to testify on the matters stated.”

FED. R. CIV. P. 56(c)(4). “The substance of an affidavit must demonstrate the affiant

has personal knowledge of the facts contained therein.” Wojciechowski v. Nat’l

Oilwell Varco, L.P., 763 F. Supp. 2d 832, 846 (S.D. Tex. 2011). “[C]onclusory

assertions cannot be used in an affidavit on summary judgment.” Salas v.

Carpenter, 980 F.2d 299, 305 (5th Cir. 1992). “If the affidavit fails to meet any of

the procedural requirements, a motion to strike that sets forth specific objections

is the proper method for the opposing party to challenge the affidavit.”

Wojciechowski, 763 F. Supp. 2d at 846. “The rule is settled that on a motion for

summary judgment a court will disregard only the inadmissible portions of a

challenged affidavit offered in support of or opposition to the motion and will

consider the admissible portions in determining whether to grant or deny the

motion.” Lee v. Nat’l Life Assurance Co. of Can., 632 F.2d 524, 529 (5th Cir. 1980).

The following table summarizes my rulings on each of the statements in

Herring’s affidavit that RES challenges:

CHALLENGED STATEMENT RULING

¶3 – “I was injured as a result of the SUSTAINED. This is an

gross negligence of Defendant People impermissible conclusory assertion.

Ready, Inc. while working at the See Salas, 980 F.2d at 305.

WAGYU Solar Installation Facility in

Damon, Texas on October 17, 2019.”

¶4 – “I maintain that were it not for SUSTAINED. This is an

the discriminatory policies, practices, impermissible conclusory assertion.

and procedures of Defendant People See id.

Ready’s employees, I would not have

suffered my injuries which consisted

of a ruptured inguinal column, and a

herniated bladder.”

¶4 “As a direct result of this injury, I SUSTAINED. This is an

have suffered additional hernia which impermissible conclusory assertion.

derived from the initial injury. As a See id. Additionally, Herring is not

result thereon, I shall endure long- qualified as a medical expert. See FED.

term disability, pain, discomfort, loss R. EVID. 702.

of sexual function, and loss of

consortium as it relates to my

injuries[.]”

¶5 – “I allege that were it not for the SUSTAINED as to the impermissible

discriminatory policies, practices, and conclusory assertion that Herring

procedures of Defendant People would have continued his employment

Ready, Inc.’s employees, which but for PeopleReady’s actions. See

allowed a white supervisor named Salas, 980 F.2d at 305.

Justin Thompson to harass,

intimidate, belittle and to refer to me OVERRULED to the extent Herring

as an ‘old nigger’, I would have states that Thompson referred to him

continued to work for said company.” as an “old nigger” and that Herring

perceived that language as harassing,

intimidating, or belittling—such facts

are clearly within Herring’s personal

knowledge.2

¶5 - “Furthermore, I was assigned a SUSTAINED as to the impermissible

more dangerous position working on conclusory assertion that Herring’s

the motor mount crew when I assignment to the motor mount crew

complained to RES field supervisor was a result of his complaining to

Pat [Gallardo] and People Ready Gallardo and Avalos. See Salas, 980

liaison officer Mo Avalos about my F.2d at 305.

supervisor.”

OVERRULED to the extent Herring

is stating that he complained to

Gallardo and Avalos about

Thompson’s conduct. Such facts are

clearly within Herring’s personal

knowledge.

¶5 – “I allege that no corrective action SUSTAINED to the extent Herring

was taken to address Justin claims that no corrective action was

Thompson’s harassment, but rather, I taken to address Thompson’s

was placed on a more dangerous work harassment, because the affidavit does

assignment, given a daily quota of not demonstrate how Herring has

eighty-five (85) units to install, or personal knowledge of such a fact. See

required to meet, and was not given Wojciechowski, 763 F. Supp. 2d at

the requisite personal protective 846.

equipment in which to work this more

dangerous position.” OVERRULED to the extent Herring

is stating his daily quota and lack of

personal protective equipment. Such

facts are clearly within Herring’s

personal knowledge.

¶6 – “I allege that when I attempted to SUSTAINED to the extent Herring

report the fact that I was being claims that no corrective measures

required to lift more than I had were taken, because the affidavit does

previously agreed to, during the not demonstrate how Herring has

orientation process, the liaison officer personal knowledge of such a fact. See

for People Ready, Mo Avalos stated Wojciechowski, 763 F. Supp. 2d at

that he would call corporate office to 846.

report the matter. No corrective

measures were ever taken.” OVERRULED to the extent Herring

is stating that Avalos told him he

would “call corporate.” This testimony

2 RES contends—without citation to any legal authority—that “I allege” or “I maintain”

statements are not statements of fact. See Dkt. 64 at 8–9. This is silly. Herring executed

this affidavit under oath.

is clearly within Herring’s personal

knowledge.

¶7 – “I maintain that I have several SUSTAINED. See infra at 17.

witnesses who may attest to the

strenuous working conditions on the

job, and the highly discriminatory

practices utilized by Defendant RES

Americas, Inc. in terms of determining

which employees received less

physically demanding work, or

promotion consideration versus which

ones were fired for feigned violations

of policy.”

¶8 – “I allege that the determination SUSTAINED. This is an

made by Defendant’s own expert impermissible conclusory assertion.

witness, Dr. Michael Dooer, indicated See Salas, 980 F.2d at 305.

that my secondary hernia were [sic] Additionally, Herring is not qualified

derivative of my initial injuries and as a medical expert. See FED. R. EVID.

that I should have only been released 702.

to work with extensive limitations

imposed upon my work detail.”

¶10 – “I maintain that I shall suffer SUSTAINED. This is an

long-term disability as it relates to this impermissible conclusory assertion.

matter.” See Salas, 980 F.2d at 305.

Additionally, Herring is not qualified

as a medical expert. See FED. R. EVID.

702.

C. HERRING’S REQUEST TO SUPPLANT THE DECLARATION OF JAYLON

TOLBERT (DKT. 67)

Herring asks to supplant Tolbert’s perjurious declaration with a new one.

See Dkt. 67; Dkt. 68-1 at 4–5. I need not address the laundry list of reasons that

RES and PeopleReady provide in opposition to Herring’s request. The new

declaration that Herring seeks to provide from Tolbert pertains exclusively to

events that post-date Herring’s injury and his employment with PeopleReady and

RES. The new declaration has nothing to do with Herring’s claims; it is simply

irrelevant. Herring’s request to supplant Tolbert’s declaration (Dkt. 67) is

DENIED.

D. HERRING’S MOTION FOR LEAVE TO AMEND (DKT. 70)

Herring has filed a Motion Seeking Leave to Amend His Original Answer to

Defendant RES Americas, Inc.’s Motion for Summary Judgment. Dkt. 70. No

amended answer or response was attached to this three-page document, but on the

same day this motion was filed, the clerk’s office docketed an Amended Response

in Opposition to Defendant People Ready Inc.’s Motion for Summary Judgment.

See Dkt. 71. I recently informed the parties that “I assume that the title of Herring’s

motion (see Dkt. 70) is a typo because his amended response is clearly directed

toward PeopleReady, not RES.” Dkt. 84 at 1. I gave Herring the opportunity to

correct this assumption and he did not. RES and PeopleReady both advance valid

arguments as to why no amended response or sur-reply should be permitted.

Nevertheless, I will permit Herring to advance these arguments so he can be

assured that this matter has been decided on the merits. Accordingly, Herring’s

request to amend his response to PeopleReady’s motion for summary judgment

(Dkt. 70) is GRANTED.

E. DEFENDANTS’ MOTIONS TO STRIKE HERRING’S SUR-REPLIES

(DKTS. 72, 73)

Defendants move to strike Herring’s sur-replies to their motions for

summary judgment. It is true that sur-replies are heavily disfavored, including by

me. But at this point in the litigation, it hopefully comes as a surprise to no one

that I like to decide the issues on their merits. For the reasons I discuss below,

Defendants are entitled to summary judgment on Plaintiffs’ negligence and gross

negligence claims even if I consider Herring’s sur-replies and the evidence

attached to those sur-replies.3 Accordingly, Defendants’ motions to strike

Herring’s sur-replies (Dkts. 72, 73) are DENIED.

3 I do not consider the new Tolbert declaration because I deny Herring’s request to

supplant Tolbert’s earlier, perjurious declaration.

F. HERRING’S REMAINING EVIDENTIARY OBJECTIONS

I must address one final matter before turning to the merits of this case.

Herring lodges a blanket objection against all of RES’s exhibits because RES’s

motion for summary judgment “does not contain a proper Appendix, with page

numbers, exhibit numbers, or alphabetized designations of each exhibit so that

they may be located or identified within the record as required by Rule 7(B)(3) of

the local rules of this court.” Dkt. 59 at 6. As to PeopleReady, Herring objects that

“there are no page numbers listed on the right hand tab” of PeopleReady’s

appendix. Dkt. 83 at 10. These are not valid evidentiary objections. They are simply

procedural “gotchas.” Herring has benefitted greatly from my refusal to “play

procedural ‘gotchas’” in this litigation. Dkt. 44 at 1 n.1. He should not expect me to

start now. Even if the failure to comply with a local filing rule were a valid basis to

discount a party’s summary judgment evidence—and to be clear, it is not—it still

would not matter because RES and Herring substantially complied with this

court’s local rules. RES provided a table of contents for its exhibits in Section V to

its motion for summary judgment. See Dkt. 58 at 7–8. Moreover, the rule that

Herring cites regarding tabbing appendices to the right applies only to “courtesy

copies of appendices or those filed conventionally (i.e. not electronically).” Dkt. 83

at 16 (emphasis added). Both RES and PeopleReady filed electronically, so this rule

does not apply to them. Accordingly, Herring’s blanket procedural objections to

the entirety of RES and PeopleReady’s summary judgment exhibits are

OVERRULED.

MOTIONS FOR SUMMARY JUDGMENT

A. SUMMARY JUDGMENT STANDARD

“The 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). Facts are material when they “might affect

the outcome of the suit,” and disputes are genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Defendants initially bear the burden

of demonstrating that there is no genuine dispute of material fact, and they carry

that burden if they can demonstrate that Plaintiffs have failed to prove “an

essential element of [their] case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). If Defendants meet their burden, Plaintiffs “must point to specific facts

showing that there is a genuine dispute for trial.” Owens v. Circassia Pharm., Inc.,

33 F.4th 814, 824 (5th Cir. 2022) (quotation omitted). I construe all the evidence

and make all reasonable inferences in the light most favorable to Herring. See Scott

v. Harris, 550 U.S. 372, 378 (2007).

B. PLAINTIFFS’ NEGLIGENCE AND GROSS NEGLIGENCE CLAIMS

Defendants argue that Plaintiffs’ negligence and gross negligence claims

against them are barred by the exclusive remedy provision of the Texas Workers’

Compensation Act (“TWCA”). That provision states that “[r]ecovery of workers’

compensation benefits is the exclusive remedy of an employee covered by workers’

compensation insurance coverage.” TEX. LABOR CODE ANN. § 408.001(a). The

TWCA further provides that “if a temporary employment service elects to obtain

workers’ compensation insurance, the client of the temporary employment service

and the temporary employment service are subject to Section[] . . . 408.001.” Id.

§ 93.004(b). It is undisputed that PeopleReady is a temporary employment

service; that RES was its client; that PeopleReady elected to carry workers’

compensation insurance coverage; and that Herring sought and received benefits

under that insurance. Accordingly, both PeopleReady and RES are entitled to

assert the exclusive remedy provision as a bar to Herring’s claims. That ought to

be the end of the discussion. Nevertheless, Herring advances a number of

arguments as to why he believes PeopleReady and RES are not entitled to the

exclusive remedy.

First, Herring argues that Defendants are not entitled to the exclusive

remedy because PeopleReady’s “Insurance Carrier did not comply with the

provisions of the TWCA.” Dkt. 83 at 7. I will assume for the sake of argument that

this is true, but it has no bearing on whether Defendants are entitled to the

exclusive remedy. PeopleReady’s insurance carrier is not a party to this case, and

this is not an appeal pursuant to the TWCA’s dispute resolution process. All that

matters for the purpose of determining whether Defendants are entitled to the

exclusive remedy is whether Herring was “covered by workers’ compensation

insurance coverage.” TEX. LABOR CODE ANN. § 408.001(a). Herring cannot dispute

that he was covered by workers’ compensation insurance because he admits that

he “receive[d] workers’ compensation benefits.” Dkt. 58-7 at 152; see Martinez v.

Bally’s La., Inc., 244 F.3d 474, 476 (5th Cir. 2001) (“A judicial admission is a

formal concession in the pleadings or stipulations by a party or counsel that is

binding on the party making them.”).

Nevertheless, in his amended summary judgment response, Herring argues

that PeopleReady “has presented no evidence to demonstrate that it had purchased

Workmen’s Compensation Insurance independently, but was relying upon its

relationship with TrueBlue Inc. as the subsidiary of the [arguably] insured

company True Blue.” Dkt. 71 at 6 (alteration in original). This argument fails for

several reasons, but I will start with the most obvious: by its plain language, the

TWCA requires only that PeopleReady “maintain[ed] a policy of workers’

compensation insurance,” not that it purchased workers’ compensation insurance.

TEX. LABOR CODE ANN. § 93.004(a). The declaration of Sylvia Rey Flores, a Senior

Resolution Manager for Gallagher Bassett, Inc., establishes that PeopleReady is an

additional named insured on Policy No. WC 014-64-9290, which “provided

workers’ compensation and employer’s liability coverage” in Texas during the time

of Herring’s injury. Dkt. 57-2 at 2. This affidavit is “sufficient evidence . . . to

demonstrate subscriber status under the Act.” Warnke v. Nabors Drilling USA,

L.P., 358 S.W.3d 338, 344 (Tex. App.—Houston [1st Dist.] 2011, no pet.). That

PeopleReady maintained workers’ compensation insurance as an additional

named insured on a policy that its parent company purchased, rather than

purchasing the insurance itself, does not change the fact that PeopleReady

maintained workers’ compensation insurance and that Herring was covered by

that insurance, which is all the exclusive remedy provision requires. Moreover,

Herring “does not contest [PeopleReady’s] recitations regarding . . . [its]

enrollment in Workers Comp. insurance.” Dkt. 83 at 17. Accordingly, there is no

genuine dispute that PeopleReady maintained workers’ compensation insurance;

that Herring received the benefits of that insurance because he was covered by it;

and that PeopleReady—and RES, as PeopleReady’s client—are entitled to the

exclusive remedy.

Herring next argues that because he was a temporary worker, the exclusive

remedy extended to professional employer organizations who obtain workers’

compensation coverage does not apply. See Dkt. 71 at 6 (citing TEX. LABOR CODE

ANN. § 91.001(14)). Herring is correct that temporary workers are excluded from

the definition of “professional employers services” under Chapter 91 of the Texas

Labor Code (the “Professional Employer Organizations Act”). And Herring is also

correct that the exclusive remedy is not available to a professional employer service

or its client when the employee is a temporary worker. But none of these arguments

are relevant to this dispute. As Herring himself has admitted, he “was a temporary

worker.” Id. Temporary workers fall under Chapter 93 of the Texas Labor Code,

not Chapter 91. Under Chapter 93, when a temporary employment service like

PeopleReady “elects to obtain workers’ compensation insurance, the client of the

temporary employment service and the temporary employment service are subject

to Section[] 408.001.” TEX. LABOR CODE ANN. § 93.004(b). As we have already

established, PeopleReady obtained workers’ compensation insurance.

Thirdly, Herring argues that the exclusive remedy does not apply to

PeopleReady because his claims are subject to the intentional injury exception. See

Dkt. 83 at 7. PeopleReady counters that Herring has not raised a claim of

intentional injury before and cannot do so for the first time in his response to a

motion for summary judgment. It is true that Herring did not raise a claim of

intentional injury in either his Original Petition or his Supplemental Complaint. It

is also true that “[a] claim which is not raised in the complaint but, rather, is raised

only in response to a motion for summary judgment is not properly before the

court.” Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir.

2005). These two points dispose of Herring’s argument. But I will go one step

further and explain why, even if Herring could raise an intentional injury claim at

this late juncture in the case, he has not done so.4

The Texas Supreme Court has held “that the intentional failure to furnish a

safe place to work does not rise to the level of intentional injury except when the

employer believes his conduct is substantially certain to cause the injury.” Reed

Tool Co. v. Copelin, 689 S.W.2d 404, 407 (Tex. 1985). Herring has not alleged

intentional conduct under this standard. Herring complains about the behavior of

Gallardo, Avalos, and Thompson. But none of these men were the ones lifting the

steel tube with Herring when he was injured. Herring was working with “his two

normal co-workers named Charles Felder [(“Felder”)], and Roy Sandoval

[(“Sandoval”)].” Dkt. 36 at 6. Yet, Herring makes no allegations that there was a

specific known risk to him that did not apply to Felder or Sandoval. Nor does

Herring allege that either Felder or Sandoval intentionally caused or contributed

to his injury. This is important because Herring was lifting the tube with Felder.

The Texas Supreme Court has held “that for the intentional-tort exception

to the exclusive remedy to apply, the employer must believe that its actions are

substantially certain to result in a particular injury to a particular employee, not

merely highly likely to increase overall risks to employees in the workplace.”

Mo-Vac Serv. Co., Inc. v. Escobedo, 603 S.W.3d 119, 130 (Tex. 2020). Herring does

not explain why PeopleReady should have believed that Herring, and only Herring,

would be injured when Herring acknowledges that another worker of his same

“stature” was lifting the tube with him. Dkt. 36 at 6. Moreover, Herring asserts that

at least one worker could “deadlift a torque tube shaft by himself,” undercutting

4 For whatever reason, Herring does not advance this argument as to RES. But even if he

did, the analysis would be the same and the claim would fail.

his argument that the work was inherently dangerous. Id. at 5. Herring simply has

not alleged facts suggesting that PeopleReady believed that Herring’s transfer to

the motor mount crew was “substantially certain” to result in his injuries.

Lastly, Herring asks whether § 401.022 of the TWCA creates an exception to

the exclusive remedy provision. It does not. Section 401.022 provides that the

TWCA “may not be applied to discriminate because of race, sex, national origin, or

religion.” TEX. LABOR CODE ANN. § 401.022(a). By its plain language, Section

401.022 has no impact on the exclusive remedy provision. Herring has not cited

any legal authority suggesting otherwise, and I have not been able to locate any.

Furthermore, reading the provision in full assures me that this statutory provision

is meant to prohibit discrimination in the evaluation of workers’ compensation

claims. See id. § 401.022(b) (“This section does not prohibit consideration of an

anatomical difference in application of the impairment guidelines under Chapter

408 in rating an injury or a disease such as, but not limited to, breast cancer or an

inguinal hernia. If an impairment rating assigns different values to the same injury

for males and females, the higher value shall be applied.”). For all these reasons,

Plaintiffs’ negligence and gross negligence claims are barred by the exclusive

remedy provision of the TWCA.

C. HERRING’S § 1981 CLAIM

To establish a claim for relief under § 1981, Herring must “show that (1) he

is a member of a racial minority; (2) the defendant[s] had an intent to discriminate

on the basis of race; and (3) the discrimination concerned one or more of the

activities enumerated in the statute, such as the making and enforcing of a

contract.” See Perry v. VHS San Antonio Partners, L.L.C., 990 F.3d 918, 931 (5th

Cir. 2021). Defendants do not dispute that Herring is a member of a racial minority

or that the alleged discrimination concerns an enumerated activity. Rather,

Defendants contend that Herring cannot establish the second element—an intent

to discriminate. There are three possible claims under § 1981: discrimination,

retaliation, and hostile work environment. See West v. Honeywell Int’l Inc., 558 F.

Supp. 3d 369, 377–83 (S.D. Tex. 2021) (addressing all three types of claims under

§ 1981). Before I analyze whether Herring can establish discriminatory intent

through any of these avenues, however, I must address a procedural matter.

PeopleReady argues that I have “observed” that “Herring’s potentially

colorable allegations of intentional discrimination concern retaliation.” Dkt. 56 at

18. Not so. My Memorandum and Recommendation on Defendants’ Motions to

Dismiss never mentions the word “retaliation.” See Dkt. 44. Nor does it mention

the phrase “hostile work environment.” See id. By PeopleReady’s logic, Herring

“did not cognizably plead [a hostile work environment]” any more than he pleaded

retaliation. Dkt. 61 at 25. Admittedly, Herring “does not do a great job explaining

the conduct allegedly demonstrating a discriminatory intent.” Dkt. 44 at 6. What

matters, though, is that Herring has clearly stated a claim for relief under § 1981.

If that claim is to survive summary judgment, Herring must establish that each

defendant “had an intent to discriminate on the basis of race.” Perry, 990 F.3d at

931. There are a number of ways that Herring can establish discriminatory intent,

and Defendants are wise to have addressed each of them in their motions for

summary judgment. I will now consider each in turn.

1. Herring Cannot Establish Discrimination or Retaliation

Because He Did Not Suffer an Adverse Employment Action.

To establish a claim of discrimination under § 1981, Herring must

demonstrate that: (1) he “is a member of a protected class”; (2) he “was otherwise

qualified for the position”; (3) he “suffered an adverse employment action”; and

(4) “the action took place under conditions establishing an inference of

discrimination.” Matthews v. Int’l House of Pancakes, Inc., 597 F. Supp. 2d 663,

675 (E.D. La. 2009). To establish a claim of retaliation under § 1981, Herring must

prove that: (1) “he engaged in a protected activity”; (2) he suffered an adverse

employment action; and (3) “a causal link exists between the protected activity and

the adverse employment action.” Wantou v. Wal-Mart Stores Tex., L.L.C., 23

F.4th 422, 436–37 (5th Cir. 2022). Both Defendants argue that Herring cannot

establish discrimination or retaliation because he did not suffer an adverse

employment action.

An adverse employment action is one that affects “job duties, compensation,

or benefits.” Rahman v. Exxon Mobil Corp., 56 F.4th 1041, 1046 (5th Cir. 2023)

(quotation omitted). Herring claims that his transfer from the tracking crew to the

motor mount crew constituted an adverse employment action. See Dkt. 59-3 at 10

(“Furthermore, I was assigned a more dangerous position working on the motor

mount crew when I complained [about Justin Thompson’s actions].”). I will

assume, without deciding, that transfer to a more dangerous position may

constitute an adverse employment action. But even so, Herring has not pointed to

any evidence demonstrating that work on the motor mount crew was actually more

dangerous than work on the tracking crew.

Simply saying that the position was “more dangerous” is not sufficient. See

King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“[T]he plaintiff cannot rest on his

allegations to get to a jury without any significant probative evidence tending to

support the complaint.” (quotations omitted)). Nor is it sufficient for Herring to

say that he “was not given the requisite personal protective equipment in which to

work this more dangerous position.” Dkt. 59-3 at 11. Herring does not specify what

equipment he was not provided and why that equipment was required. In his

Supplemental Complaint, Herring states that he was not given “a hernia belt, or

any type of hydraulic lift equipment to assist him in lifting.” Dkt. 36 at 6. But this

is not competent summary judgment evidence because the Supplemental

Complaint is unverified. See Dogan, 31 F.3d at 346 (“[B]ecause [the complaint] is

unverified, it does not constitute competent summary judgment evidence.”). Even

if it were competent summary judgment evidence, Herring does not offer evidence

showing why or whether a hernia belt or hydraulic lift equipment is actually

required; nor does Herring offer evidence that such equipment was regularly

provided to other employees but not to him. Without more, Herring has not offered

enough evidence to establish that his transfer to the motor mount crew was an

adverse employment action.

In his affidavit, Herring states:

I maintain that I have several witness[es] who may attest to the

strenuous working conditions on the job, and the highly

discriminatory practices utilized by Defendant RES Americas, Inc. in

terms of determining which employees received less physically

demanding work, or promotion consideration versus which ones were

fired for feigned violations of policy.

. . . .

I aver that the reason that I have not obtained witness affidavits

from my witnesses is due to the fact that Defendants had requested

the opportunity to depose my witnesses, and I did not want to

interfere with their discovery.

Dkt. 59-3 at 11. Discovery is, literally, the time to discover evidence—to disclose

witnesses and obtain affidavits or deposition testimony from them. This is why

Rule 26 requires initial disclosures. See FED. R. CIV. P. 26(a)(1). On summary

judgment, “[a] party asserting that a fact cannot be or is genuinely disputed must

support the assertion by: citing to particular parts of materials in the record,

including depositions, documents, electronically stored information, affidavits or

declarations, stipulations . . . , admissions, interrogatory answers, or other

materials.” See id. Rule 56(c)(1). Accordingly, Herring’s sworn statement that he

has witnesses to support his claims is simply insufficient at summary judgment.

Accordingly, Herring cannot establish the discriminatory intent required to prevail

on a § 1981 claim through either discrimination or retaliation.

2. There Is a Genuine Issue of Material Fact Concerning

Herring’s Hostile Work Environment Claim.

To survive summary judgment on a hostile work environment claim under

§ 1981, Herring must show that “(1) he is a member of a protected class; (2) he

suffered unwelcomed harassment; (3) the harassment was based on his

membership in a protected class; (4) the harassment affected a term, condition, or

privilege of employment; and (5) the employer knew or should have known about

the harassment and failed to take prompt remedial action.” Wantou, 23 F.4th at

433 (quotation omitted). Defendants contest only the fourth and fifth elements.

(a) There is a genuine issue of material fact that the

harassment Herring suffered affected a term,

condition, or privilege of employment (Element 4).

Regarding the fourth element of a hostile work environment claim under

§ 1981, the Fifth Circuit has instructed:

Harassment affects a term, condition, or privilege of

employment if it is sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working

environment. Workplace conduct is not measured in isolation. In

order to deem a work environment sufficiently hostile, all of the

circumstances must be taken into consideration. This includes 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. To be actionable, the 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.

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

Herring testified that Justin Thompson, “the lead worker that they had

assigned over [Herring’s] crew was calling [Herring] a nigger.” Dkt. 58-7 at 138;

see also id. (Herring testified that Thompson “was referring to [Herring] as an old

nigger. That old nigger. Come here, old nigger.”). Herring testified that he found

this language offensive whether it was being uttered by Thompson or “some of the

young Black workers.” Id. at 177; see also id. at 67 (“And if you don’t think that a

supervisor referring [to] you as a nigger openly to your face and nothing being done

about it is discriminatory, then I submit to you then, sir, that you might want to

examine your own makeup.”); id. at 138 (“It’s not funny. It’s not nothing to play

about. I’m not going to ever allow you to use that type of language towards me.”);

id. at 140 (testifying that Thompson’s language was “diminishing [Herring’s] self-

worth” and “making [Herring] feel inferior or making [Herring] feel somehow

compromised when [Herring] was working out there”).6 Herring testified that

“when [Thompson] began to address [Herring] in that manner and refer to [him]

as . . . an old nigger,” Herring said: “Stop it. Don’t use that type of language towards

me. It’s not okay.” Id. at 177–78. Herring testified that Thompson “was unrelenting

with it.” Id. at 178. Herring also testified that even after he “no longer worked for

[Thompson],” that Thompson “still came over there while I was working and still

harassed me. He would make me leave what I was assigned to do, and I didn’t have

any recourse.” Id. at 139. Construing this testimony in the light most favorable to

Herring, I find sufficient evidence to raise a fact issue as to whether the harassment

complained of affected a term, condition, or privilege of employment. The cases

that Defendants cite in support of a contrary holding are all unavailing.

In support of its argument that Thompson’s slurs did not affect Herring’s

employment, PeopleReady cites to Mendoza v. Helicopter, 548 F. App’x 127 (5th

Cir. 2013), an unpublished and non-precedential opinion that is silent as to the

race-based comments at issue. In Mendoza, the court found no hostile work

environment where “the complained of conduct occurred sporadically over a

several year period” and could “not accurately be described as pervasive.” Id. at

129. PeopleReady also cites to Anderson v. Sikorsky Support Servs., 66 F. Supp.

3d 863 (S.D. Tex. 2014), in which the court found no hostile work environment

where plaintiff alleged being called “the ‘N’ word” one time by a co-worker in April

2011, while the other three quarters of the complained-of conduct was “not

directed at Plaintiff.” Id. at 874. Similarly, in Frazier v. Sabine River Auth. La.,

509 F. App’x 370 (5th Cir. 2013)—a case cited by RES—the Fifth Circuit found that

because the conduct at issue was not directed toward the plaintiff, there was no

hostile work environment. See id. at 371–72. Here, Herring’s testimony is

6 PeopleReady points to Herring’s deposition testimony that “unnamed minority

co-workers . . . apparently did not consider [“nigger”] offensive.” Dkt. 56 at 21.

Thankfully, beyond this aside, neither Defendant seriously contests that “nigger” is both

a subjectively and objectively offensive term. Needless to say, if they did, I would disagree

with them.

admittedly silent as to the frequency of Thompson’s conduct, but Herring’s

employment with Defendants lasted only a few months, and Herring has testified

that that Thompson “was unrelenting,” seeking Herring out even after Herring no

longer worked for Thompson. This is certainly more pervasive than the

nondescript, sporadic conduct discussed in Mendoza, the isolated single remark

described in Anderson, or the secondhand harassment observed in Frazier.

In reading their motions for summary judgment, I fear that both defendants

have conflated the fourth and fifth elements of a hostile work environment claim.

Recall that the fourth element requires Herring to show that “the harassment

affected a term, condition, or privilege of employment,” while the fifth element

requires Herring to show that “the employer knew or should have known about the

harassment and failed to take prompt remedial action.” Wantou, 23 F.4th at 433

(quotation omitted). For example, PeopleReady argues that “[Herring] does not

allege that Mr. Avalos committed any act of harassment, let alone an act sufficient

to impute an intent to discriminate on the basis of race.” Dkt. 56 at 19. Similarly,

RES argues that “Herring’s conclusory allegations that [Gallardo] assigned him to

the Motor Mount Crew for complaining about racial harassment are insufficient to

establish a prima facie case of hostile work environment under Section 1981.” Dkt.

58 at 18 (cleaned up). But Herring does not have to allege that Avalos discriminated

against him or that Gallardo retaliated against him. Herring has testified that he

was subjected to offensive, unrelenting, and humiliating harassment by

Thompson—a PeopleReady employee working with Herring for RES at an RES

work site—and that this conduct continued even after Herring told Thompson to

stop. That testimony is sufficient to create a genuine dispute of material fact

regarding whether Thompson’s conduct affected a term or condition of Herring’s

employment. What Avalos or Gallardo did or did not do upon learning of

Thompson’s conduct speaks to the fifth element—Defendants’ knowledge and

subsequent action (or lack thereof).

(b) There is a genuine issue of material fact concerning

whether Defendants knew or should have known of

Thompson’s harassment and failed to take prompt

remedial action (Element 5).

(1) People Ready

“An employer can be put on notice of harassment, and therefore be required

to take remedial action, if a person within the organization who has the authority

to address the harassment problem or an affirmative duty to report harassment

learns of the harassment in question.” Abbt v. City of Houston, 28 F.4th 601, 607

(5th Cir. 2022). By his own admission, Avalos was “PeopleReady’s senior

representative on the Wagyu Project” who had the responsibility to “investigate [a

complaint involving protected rights] and document it with statements from the

complaining employee and witnesses before referring the issue for action.” Dkt.

57-1 at 3, 5. PeopleReady does not seriously contest that Herring’s testimony—that

he reported Thompson’s harassment to Avalos—is sufficient to establish that

PeopleReady knew or should have known of Thompson’s harassment.7 Rather,

PeopleReady contends that “Herring cannot establish that PeopleReady failed to

take prompt remedial action” because Herring “complained to PeopleReady,

[then] complained to RES before PeopleReady had the opportunity to investigate

the issue (resulting in alleged remedial action by RES), and never advised

PeopleReady of an issue with the alleged corrective measures.” Dkt. 56 at 22–23.

Tellingly, PeopleReady cites no case law for the proposition that where a

temporary employee complains to one of his temporary employment service’s

on-site representatives, and then later to a foreman at the company to whose

7 PeopleReady highlights that Herring “could not have raised complaints on the date

specified” in his interrogatory responses. Dkt. 56 at 22 n.60. But Herring’s response

shows this date was only approximate. See Dkt. 57-5 at 5 (“Plaintiff conveyed to [Avalos]

on or about September 15, 2019 that [Thompson] was harassing and berating Plaintiff,

and frequently directing racial epithets toward him and many of the black employees

while at work.” (emphasis added)). Herring’s sworn testimony that he reported

Thompson’s harassment to Avalos—despite Avalos’s affidavit to the contrary—creates a

genuine dispute of a material fact.

worksite he has been assigned, that the subsequent complaint relieves the

temporary employment service from investigating the employee’s complaint or

taking any further action. Even if RES’s allegedly remedial action—saying nothing

to Thompson and simply transferring Herring to a different crew where Thompson

continued to contact Herring—was sufficient, I could hardly impute that action to

PeopleReady. PeopleReady offers no evidence whatsoever that it did anything to

investigate Herring’s complaint, much less assess the efficacy of RES’s allegedly

remedial action. Of course, the reason PeopleReady offers no such evidence is

because PeopleReady maintains that Herring never complained to Avalos, so

PeopleReady was never on notice. But Herring and Avalos each offer conflicting

testimony on this point. Accordingly, I find Herring’s testimony sufficient to create

a genuine dispute of material fact regarding whether PeopleReady knew or should

have known of Thompson’s harassment.8

(2) RES

Interestingly, RES disclaims both knowledge and failure to take prompt

remedial action. RES does not dispute that Herring reported Thompson’s

harassment to Gallardo. Rather, RES contends that “foremen, including [Gallardo]

are craft employees and are not considered RES management.” Dkt. 58 at 20. Yet,

RES next contends that because “[Gallardo] removed [Herring] from under

[Thompson]’s supervision and placed him in the Motor Mount Crew to avoid an

escalation in conflict . . . it is implausible to argue that RES failed to take proper

remedial action.” Id. at 21. RES cannot disclaim in one breath that Herring’s report

to Gallardo was insufficient to put RES on notice, and then, in the very next breath,

claim that Gallardo’s actions following Herring’s report constituted prompt

remedial action. If Gallardo had “authority to address the harassment problem,”

then Herring’s report to Gallardo was sufficient to put RES on notice of the

8 Because Herring’s testimony is sufficient, on its own, to survive summary judgment on

his § 1981 claim against PeopleReady, I do not reach PeopleReady’s objections to the rest

of Herring’s evidence. See Dkt. 61 at 11–15. These objections can be revisited at trial.

harassment. See Abbt, 28 F.4th at 607 (quotation omitted). Moreover, whether

Gallardo’s “remedial” action was sufficient is a genuinely disputed material fact in

light of Herring’s testimony that even after Herring “no longer worked for

[Thompson],” that “[Thompson] still harassed [Herring]” and “would make

[Herring] leave what [Herring] was assigned to do.” Dkt. 58-7 at 139. For this

reason alone, I find Herring’s testimony sufficient to establish a genuine dispute of

material fact regarding whether RES knew or should have known of Thompson’s

harassment and failed to take prompt remedial action.9 Alas, there are other

disputed issues.

RES makes much ado of its contention that “Herring did not make any

formal complaint to RES management about discrimination or take advantage of

the resources made available to him by RES to report such discrimination,

including reporting the alleged racial harassment via the confidential hotline

provided by RES.” Dkt. 58 at 20. In support, RES cites to “posters around [the]

jobsite” attached to the affidavit of project manager Jeremy Teresinski

(“Teresinski”). Id. nn.73–74. There are a couple of problems with these pieces of

evidence. First, Herring has testified that “they didn’t give us no 1-800 number to

call about no racial discrimination.” Dkt. 58-7 at 146. The conflict between this

testimony and Teresinski’s affidavit regarding the jobsite posters creates a

disputed fact. Second, while it is true that the posters provide a confidential hotline

to call, the posters also say: “Or speak to your line manager.” Dkt. 58-6 at 1–4.

Perhaps foremen and line managers are something different at RES, but in

common parlance they are one in the same, and RES offers no evidence otherwise.

Moreover, RES’s own evidence suggests that Gallardo was a line manager with

authority to make decisions like transferring personnel upon receiving complaints

on discrimination. Thus, whether Gallardo was a line manager to whom Herring

9 Because Herring’s testimony (via his deposition and the portions of his affidavit to which

RES’s objections have been overruled) is sufficient, on its own, to survive summary

judgment on his § 1981 claim against RES, I do not reach RES’s objections to the rest of

Herring’s evidence. See Dkt. 64 at 10. These objections can be revisited at trial.

should have brought his complaints of harassment in accordance with RES policy

is also a disputed fact. For all these reasons, Herring’s § 1981 claim against RES

should be resolved by the trier of fact.

CONCLUSION

For the reasons discussed above, I issue the following orders:

e Herring’s motion to strike (Dkt. 60) is GRANTED;

e RES’s motion to strike the declaration of Jaylon Tolbert (Dkt. 64) is

GRANTED;

e Herring’s request to supplant Tolbert’s declaration (Dkt. 67) is

DENIED;

e Herring’s request to amend his response to PeopleReady’s motion for

summary judgment (Dkt. 70) is GRANTED; and

e Defendants’ motions to strike Herring’s sur-replies (Dkts. 72—73) are

DENIED.

Finally, I recommend that PeopleReady’s motion for summary judgment (Dkt. 56)

and RES’s motion for summary judgment (Dkt. 58) be GRANTED as to Plaintiffs’

negligence and gross negligence claims, but DENIED as to Herring’s § 1981 claim.

The Clerk shall provide copies of this Memorandum and Recommendation

to the respective parties who have 14 days from receipt to file written objections

under Federal Rule of Civil Procedure 72(b) and General Order 2002-13. Failure

to file written objections within the time period mentioned shall bar an aggrieved

party from attacking the factual findings and legal conclusions on appeal.

SIGNED this 11th day of July 2023.

UNITED STATES MAGISTRATE JUDGE

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