Scott v. Brandon Company of Tennessee, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

TEVIN SCOTT CIVIL ACTION

VERSUS 23-697-SDD-SDJ

BRANDON COMPANY OF

TENNESSEE, LLC.

RULING

This matter is before the Court on the Motion for Summary Judgment1 by

Defendant, Brandon Company of Tennessee, LLC (“Defendant”). Plaintiff, Tevin Scott

(“Plaintiff”), has filed an Opposition2 to this motion, to which Defendant filed a Reply,3 and

Plaintiff filed a Sur-reply.4 For the following reasons, the Court finds that Defendant’s

motion should be GRANTED.

I. FACTUAL BACKGROUND

Defendant is a flooring company with a location in Prairieville, Louisiana. Mike

Scichowski (“Scichowski”) has been the Branch Manager for this location since 2017.5

Since that time, this location has employed between ten and fifteen employees; currently,

there are twelve employees in addition to Scichowski, consisting of four truck drivers, four

warehouse workers, and four office workers. At present, all warehouse workers and

drivers are African American, and two of the four office workers are African American.6

1 Rec. Doc. 12.

2 Rec. Doc. 18.

3 Rec. Doc. 21.

4 Rec. Doc. 26.

5 Rec. Doc. 12-1, Scichowski Declaration, ¶ 2.

6 Id. at ¶ 3.

Scichowski interviewed Plaintiff for a driver position and first hired him to begin

working on July 6, 2020.7 Plaintiff testified that he could not recall Scichowski ever making

racial comments to him.8 Plaintiff claims he was subjected to racially derogatory

comments by white driver Richard Barnes (“Barnes”), who worked for Defendant during

the relevant time period.9 For the duration of Plaintiff’s employment with Defendant, he

shared a truck with Barnes, with Barnes driving night shifts and Plaintiff driving daytime

routes. Because of this schedule, Plaintiff’s interaction with Barnes was limited.10

Approximately two months after Plaintiff’s employment began, in August 2020, he

notified Scichowski that his fiancé suffered a difficult pregnancy resulting in their son

being delivered prematurely. Scichowski responded to Plaintiff’s message that he was

“praying for a good report.”11 However, about a month later, on September 28, 2020,

Plaintiff resigned because he was assigned routes too far for him to regularly see his son,

who was still in the Neonatal ICU. Scichowski accepted Plaintiff’s resignation and wished

him the best.12

Plaintiff worked only three months for Defendant in 2020, and he testified that he

did not have any problems with any co-employees during that time, including Barnes.13

Sadly, Plaintiff’s son passed away a few months after his resignation, and he contacted

Scichowski about being rehired. Scichowski was supportive and asked Plaintiff to come

visit the next day to discuss his employment.14 Plaintiff was rehired by Scichowski on

7 Rec. Doc. 12-4, Scott Depo, pp. 31-32; Rec. Doc. 12-5, p. 1.

8 Id. at pp. 30-32.

9 Id.

10 Id. at pp. 32-33; Rec. Doc. 12-1, Scichowski Declaration, ¶ 4.

11 Rec. Doc. 12-6, pp. 1-2; Rec. Doc. 12-1, Scichowski Declaration, ¶ 5.

12 Rec. Doc. 12-6, p. 3; Rec. Doc. 12-1, Scichowski Declaration, ¶ 6.

13 Rec. Doc. 12-4, Scott Depo, p. 41.

14 Rec. Doc. 12-6, pp. 5-6.

February 10, 2021.15

Not long after Plaintiff returned to work, he began complaining about various

issues, including being reassigned routes of other drivers, purportedly claiming that he

did not get paid enough to do others’ jobs.16 Plaintiff admitted that he complained about

having to take routes from co-driver Rico Seldon (“Seldon”); he also admitted that, while

he believed this to be unfair, it was not racially discriminatory because Seldon is also

African American.17 Plaintiff also complained about safety issues with some of the

trailers.18

On October 8, 2021, Barnes had driven the night shift and was returning from

Jackson, Mississippi in the early morning hours. He was significantly delayed due to a

traffic accident and was later than usual returning to Defendant’s premises. Defendant

claims that, due to the traffic delay and Barnes’ health issues, which include diabetes,

Barnes desperately needed to urinate when he returned. Not confident that he could

make it inside to the restroom, Barnes exited the truck and urinated on the concrete

underneath the truck.19

Plaintiff observed Barnes urinating outside the truck and claims Barnes yelled at

him “F*** you, boy”; Plaintiff became emotional and upset, but he said nothing and walked

away.20 Plaintiff immediately reported this incident to Warehouse Manager Lloyd Prater

(“Prater”), and Prater advised Plaintiff to report the incident to Scichowski.21 Plaintiff took

15 Rec. Doc. 12-4, Scott Depo, pp. 59-60; Rec. Doc. 12-1, Scichowski Declaration, ¶ 7.

16 Rec. Doc. 12-1, Scichowski Declaration, ¶ 7; Rec. Doc. 12-8.

17 Rec. Doc. 12-4, Scott Depo, p. 120.

18 Id. at p. 89.

19 Rec. Doc. 12-1, Scichowski Declaration, ¶ 9.

20 Rec. Doc. 12-4, Scott Depo, pp. 45-47.

21 Id. at p. 81; Rec. Doc. 12-12, Prater Declaration, ¶ 4.

a picture of the urine underneath the truck and texted it to Scichowski.22

Defendant claims the following occurred after Plaintiff reported the incident.

Scichowski arrived and met with Plaintiff to hear his side; Barnes had already gone home.

Plaintiff advised that Barnes urinated all over the truck, including the door handle, on the

fuel tanks, and inside the truck. Scichowski investigated and found a puddle in front of the

trailer but did not observe urine anywhere else. Scichowski looked inside the truck and

observed only a wet spot on the driver’s seat and what appeared to be melted ice cubes

on the floorboard; Scichowski smelled the spot on the seat and advised Plaintiff it was not

urine. Scichowski began cleaning the truck so Plaintiff could run his routes. Scichowski

claims he cleaned the truck with bleach, used a mop to clean the outside of the truck, and

used other cleaning solutions and paper towels to scrub down the inside of the truck.

Scichowski placed a plastic trash bag over the driver’s seat so Plaintiff’s pants would not

get wet from the cleaning.23

Plaintiff acknowledged that Scichowski told him he would clean the truck and that

Scichowski advised that there was no urine inside the truck.24 Although Plaintiff

purportedly did not confirm that Scichowski cleaned the truck, he continued to complain

to Scichowski that he was uncomfortable driving the truck.25 Defendant maintains the

only other truck available had a manual transmission, which Plaintiff admitted he is not

qualified to drive.26 Because there was no truck available that Plaintiff could drive, and

he would not accept that Scichowski had cleaned the truck, Scichowski sent Plaintiff

22 Rec. Doc. 12-4, Scott Depo, pp. 70-71; Rec. Doc. 12-6, p. 16; Rec. Doc. 12-1, Scichowski Declaration,

¶ 10.

23 Rec. Doc. 12-1, Scichowski Declaration, ¶ 10; Rec. Doc. 12-11.

24 Rec. Doc. 12-4, Scott Depo, pp. 99-100.

25 Rec. Doc. 12-1, Scichowski Declaration, ¶ 11.

26 Rec. Doc. 12-4, Scott Depo, p. 96.

home.27 Because he sanitized the truck for Plaintiff, Scichowski concluded that Plaintiff’s

refusal to drive the truck for his route was unjustified.28 No further actions were taken to

sanitize the truck, and after sending Plaintiff home, Barnes drove the truck later that day

on his night shift.29

Scichowski also called Barnes to hear his side of the story. Barnes reported that

he was late returning due to the traffic, that Plaintiff was in a hurry to start his shift, and

Barnes urinated only outside by the truck because he could not have made it to the

bathroom. Barnes denied directing profane language towards Plaintiff; rather, Barnes

claimed that Plaintiff was aggressive towards him, and he felt physically threatened by

Plaintiff. Barnes further claimed that he spilled his drink in the cab due to Plaintiff rushing

him to turn the truck over.30

Scichowski summarized his notes and findings from the investigation of this

incident.31 Scichowski concluded he could not determine who was the aggressor in the

confrontation, nor whether Barnes made a racially offensive comment. Scichowski

determined that Plaintiff’s version of events was unlikely based on the following: (1)

Plaintiff had always been vocal in expressing his complaints, so Scichowski deemed it

out of character for Plaintiff to walk away if Barnes offended him; and (2) Plaintiff was

large, strong, and in his mid-twenties as compared to Barnes being nearly sixty and

disabled such that he could not even pass the Department of Transportation’s physical

exam, which resulted in Barnes being terminated one month later.32 Scichowski

27 Rec. Doc. 12-1, Scichowski Declaration, ¶ 11.

28 Id.

29 Id. at ¶ 12.

30 Id. at ¶ 13; Rec. Doc. 12-11.

31 Id. at ¶ 14; Rec. Doc. 12-2.

32 Id. at ¶ 15.

concluded that Barnes only urinated underneath the truck, not all over and inside the truck

as Plaintiff claimed. Scichowski personally inspected the truck and maintains that he fully

cleaned and sanitized the truck before turning it over to Plaintiff, but Plaintiff persisted in

refusing to drive the truck.33

On October 11, 2021, Scichowski terminated Plaintiff for refusing to run his route.

Scichowski maintains his decision had nothing to do with Plaintiff’s race or his accusation

that Barnes made a racially offensive comment towards him.34 Scichowski replaced

Plaintiff with another African American driver.35 Moreover, one month later, Scichowski

also replaced Barnes with another African American driver.36 Defendant maintains

Plaintiff has no evidence that any white driver who refused to run a route was not

terminated.37 Plaintiff admitted under oath that he did not observe Barnes urinating inside

the truck and that he assumed the wet seat was also urine based on observing Barnes

urinate outside the truck.38 Indeed, Plaintiff’s text message to Scichowski stated that an

“unknown fluid” was on the seat in the truck.39 Plaintiff admits that he could have cleaned

the truck more thoroughly if he was displeased with Scichowski’s efforts; however,

Plaintiff maintains it was not his responsibility to clean the truck.40 Scichowski maintains

that Plaintiff was terminated for refusing to run his route; Plaintiff insists that he did not

refuse to run his route; rather, he refused to drive a truck that had not been properly

sanitized.41

33 Id. at ¶ 16.

34 Id. at ¶ 17; Rec. Doc. 12-4, Scott Depo, pp. 93-94; Rec. Docs. 12-9 and 12-10.

35 Rec. Doc. 12-1, Scichowski Declaration, ¶ 19.

36 Id. at ¶ 20.

37 Rec. Doc. 12-4, Scott Depo, p. 120.

38 Id. at pp. 105-106, 113.

39 Id. at p. 105; Rec. Doc. 12-6, p. 16.

40 Rec. Doc. 12-4, Scott Depo, pp. 93-94.

41 Id.; Rec. Doc. 12-9; Rec. Doc. 18-2, Scott Declaration, ¶ 33.

Defendant contends Plaintiff could recall only two instances that Barnes made

racially offensive comments to him: (1) when Plaintiff returned to work after the death of

his infant son, Barnes allegedly stated to him that he was a young African American man

that could have more kids; and (2) Barnes saying “F*** you, boy” after Plaintiff observed

him urinating under the truck.42 Plaintiff argues he provided these two incidents as

examples, but Barnes regularly used the “n-word” and “boy” when addressing African

American co-workers.43 Defendant claims Barnes used the word “boy” when addressing

white co-workers as well.44 Further, Scichowski contends he terminated a white driver

for using the ”n-word” at work.45

Plaintiff has denied or qualified most of Defendant’s statements of fact.46 Plaintiff

paints a different picture of the events leading up to and surrounding his termination.

Plaintiff maintains that, during his employment, Defendant employed “at least twenty

people” in Louisiana, including the cities of Prairieville, Baton Rouge, Rayne, New

Orleans, and Covington.47 Plaintiff claims he was a “great employee” who never received

any complaints about his job performance,48 and he notes that he was hired by Defendant

twice.49 Plaintiff acknowledges he had a history of reporting workplace safety violations

and instances of mistreatment and purported discrimination to Defendant.50 Plaintiff

claims Scichowski ignored his complaints and similar complaints made by other African

42 Rec. Doc. 12-4, Scott Depo, pp. 13-14.

43 Rec. Doc. 18-5, Scott Depo, p. 44; Rec. Doc. 18-2, Scott Declaration, ¶ 27.

44 Rec. Doc. 12-12, Prater Declaration, ¶ 5; Rec. Doc. 12-13, Early Declaration, ¶ 5.

45 Rec. Doc. 12-1, Scichowski Declaration, ¶ 18; Rec. Doc. 12-13, Early Declaration, ¶ 4.

46 See Rec. Doc. 18-1.

47 Rec. Doc. 18-2, Scott Declaration, ¶¶ 5-6.

48 Rec. Doc. 18-1, p. 16, ¶ 4 (citing Rec. Doc. 18-9, Seldon Declaration, ¶ 3).

49 Rec. Doc. 18-2, Scott Declaration, ¶ 3.

50 Id. at ¶¶ 9, 17.

American employees,51 while Scichowski took the complaints of white employees

seriously.52

Plaintiff and other African American drivers employed by Defendant claim that

African American drivers were required to assist Barnes in various ways, including

detaching and reattaching his trailer and adjusting Barnes’ truck equipment, steering

wheel mirrors, and seat. If Barnes complained to Scichowski, Plaintiff contends he and

other African American drivers were reprimanded loudly and in a demeaning fashion.53

Conversely, Barnes was never required to assist Plaintiff or other African American

drivers in truck adjustments.54 Additionally, Barnes had his own trailer that was in good

condition while Plaintiff and other African American drivers were forced to use unsafe

trailers with holes and leaks.55

Plaintiff also claims Barnes picked unprovoked fights with him and other African

American drivers, used profanity towards them, and called them “boy” or the n-word; yet,

Barnes was never disciplined for this conduct.56 When Plaintiff returned to work after his

son passed away, Barnes told Plaintiff “[y]ou’re a young African American man, you can

just make more of them.”57 Barnes was not disciplined for this comment.58

Plaintiff further claims Defendant ignored safety complaints and continuously

violated workplace safety regulations which resulted in workplace injuries to African

51 Id. at ¶ 25; Rec. Doc. 18-8, Boatner Declaration, ¶ 7; Rec. Doc. 18-9, Seldon Declaration, ¶ 12.

52 Rec. Doc. 18-2, Scott Declaration, ¶ 25.

53 Id. at ¶¶ 24-25; Rec. Doc. 18-8, Boatner Declaration, ¶ 9; Rec. Doc. 18-9, Seldon Declaration, ¶ 10.

54 Rec. Doc. 18-2, Scott Declaration, ¶ 13.

55 Id. at ¶ 19; Rec. Doc. 18-9, Seldon Declaration, ¶ 12; Rec. Doc. 18-7.

56 Rec. Doc. 18-2, Scott Declaration, ¶ 27; Rec. Doc. 18-9, Seldon Declaration, ¶¶ 8-9; Doc. 18-8, Boatner

Declaration, ¶¶ 10-11.

57 Rec. Doc. 18-5, Scott Depo, p. 44; Rec. Doc. 18-2, Scott Declaration, ¶ 28.

58 Id. at p. 45.

American employees.59

Plaintiff disputes that the reason he was terminated on October 8, 2021 was

because he refused to run his route; rather, Plaintiff maintains he never refused to run his

route.60 Plaintiff claims that on this date, when Barnes returned, Plaintiff began his usual

work routine in detaching Barnes’ trailer; during so, Barnes allegedly became “belligerent

and aggressively approached” Plaintiff, yelled profanities at Plaintiff, including “F*** you,

boy,” then pulled out his penis and began urinating “all over” the truck.61

Plaintiff contends he took pictures of the fluids both outside and inside the truck

and texted the pictures to Scichowski in accordance with Prater’s instructions.62

Scichowski acknowledged he received the pictures prior to arriving to work.63 When

Scichowski arrived, Plaintiff claims he was told “it’ll be fine. I’ll throw some water on it.”64

Uncomfortable with this response, Plaintiff requested that the truck be properly sanitized;

Scichowski then put soap and water in a bucket and tossed the bucket on the outside of

the truck.65 Plaintiff contends Scichowski refused to clean the driver’s seat and told

Plaintiff he could run his route or go home, then Scichowski sent Plaintiff home before he

could respond.66 Later that day, Plaintiff texted Scichowski a message expressing his

belief that he was unfairly treated and complaining about Barnes’ racist comments;

Scichowski responded, “I [sic] sorry you feel that way! We will talk Monday morning at

59 Rec. Doc. 18-2, Scott Declaration, ¶¶ 8-9, 17-18; Rec. Doc. 18-8, Boatner Declaration, ¶¶ 5-6; Rec. Doc.

18-9, Seldon Declaration, ¶¶ 12-13.

60 Rec. Doc. 18-2, Scott Declaration, ¶ 33.

61 Rec. Doc. 18-2, Scott Declaration, ¶¶ 29, 30; Rec. Doc. 18-4.

62 Rec. Doc. 18-2, Scott Declaration, ¶ 31; Rec. Doc. 18-4, pp. 1-2; Rec. Doc. 12-6.

63 Rec. Doc. 12-1, Scichowski Declaration, ¶ 10.

64 Rec. Doc. 18-2, Scott Declaration, ¶ 32.

65 Id.

66 Id. at ¶¶ 31-32.

6:00 am.”67

Plaintiff showed up to work on Monday, October 11, 2021 as directed by

Scichowski; however, when Plaintiff raised his complaints, Scichowski fired him. Plaintiff

notes that he was credited a full ten-hour workday although he was only there for four

hours.68

Plaintiff filed this lawsuit under Title VII of the Civil Rights Act of 1964,69 the

corresponding Louisiana Employment Discrimination Law (“LEDL”),70 and the Louisiana

Anti-retaliation Law.71 Plaintiff claims he has been subjected to race discrimination, a

racially hostile work environment, and retaliation. Defendant moves for summary

judgment on all claims.

II. CHALLENGED DECLARATIONS

Defendant moves to strike several statements in Plaintiff’s Statement of Additional

Material Facts, claiming they are based on inadmissible statements in Plaintiff’s and

other witnesses’ Declarations. Specifically, Defendant claims portions of these

Declarations are not based on personal knowledge, are statements the declarants are

not competent to make, constitute legal conclusions and/or conclusory opinions, and in

Plaintiff’s case, contradict Plaintiff’s sworn deposition testimony. The Court will evaluate

each Declaration and strike inadmissible statements as set forth below.

67 Rec. Doc. 18-3.

68 Rec. Doc. 18-2, Scott Declaration, ¶ 35; Rec. Doc. 18-14.

69 42 U.S.C. § 2000e et seq.

70 La. R.S. 23:301 et seq.

71 La. R.S. 51:2256.

A. Plaintiff’s Declaration

1. Personal Knowledge

In paragraphs 5 and 6, Plaintiff claims he recalls “at least twenty employees”

working for Defendant while he worked there, staking his purported personal knowledge

on the fact that he knows “some of the employees by name and others by face and/or

positions.” He proceeds to name thirteen employees and claims other employees he

never met worked in different Louisiana locations. Defendant submitted uncontroverted

evidence by Scichowski, an employee in management, who attested that Defendant

never employed more than ten to fifteen employees, and Karen Sales, identified by

Plaintiff, is in Human Resources and lives and works in Arkansas.72 Defendant moves to

strike these paragraphs in Plaintiff’s Declaration for lack of personal knowledge. The

Court agrees.

While summary judgment affidavits need not contain any magic language, the

affiant's personal knowledge and competence must be reasonably inferred from their

positions and the nature of their participation in the matters to which they swore.73 In

Russell v. Parkview Baptist School, Inc.,74 another section of this Court noted that,

[T]he Fifth Circuit has also quoted with approval a Ninth Circuit opinion

which “found it proper in the summary judgment context for district courts to

rely on affidavits where the affiants' ‘personal knowledge and competence

to testify are reasonably inferred from their positions and the nature of their

participation in the matters to which they swore.’” Id. (quoting Barthelemy v.

Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990)). Thus, in

DIRECTV, the Fifth Circuit declined to strike an affidavit for lack of personal

knowledge because it was within the affiant's position—or his “sphere of

responsibility”—to be familiar with the investigation discussed in the

72 Rec. Doc. 22-1, Scichowski Supp. Declaration, ¶¶ 1-2; Rec. Doc. 12-1, Scichowski Declaration, ¶ 3.

73 In re Green, 968 F.3d 516, 523-24 (5th Cir. 2020) (citations omitted).

74 2021 WL 1147162, at *3 (M.D. La. Mar. 25, 2021).

affidavit, so his knowledge could be “reasonably inferred.” Id. (quoting

Hodges v. Exxon Corp., 563 F. Supp. 667, 669–70 (M.D. La. 1983)).

There is nothing before the Court to demonstrate Plaintiff’s competence and/or personal

knowledge to testify about Defendant’s employees, titles, and the locations in which they

are employed. Plaintiff claims he has personal knowledge of the number of persons

Defendants employs, but this is based only on what he can recall. Further, he could only

name thirteen purported employees, then claims there are more than twenty, some of

whom he has not met and cannot name. These statements are not based on Plaintiff’s

personal knowledge and cannot controvert Scichowski’s Declaration regarding the

number of Defendant’s employees because it is not within Plaintiff’s “sphere of

responsibility” to have such knowledge. As a manager, it is within Scichowski’s sphere of

responsibility to know the number and status of Defendant’s employees. Accordingly,

paragraphs 5 and 6 of Plaintiff’s Declaration are stricken for lack of personal knowledge.

2. Legal Conclusions and Opinions

Defendant further claims Plaintiff’s Declaration contains legal conclusions and

opinions offered as “facts.” Conclusory statements without proper support do not meet

the requirements of Rule 56(e).75 Further, the generalized testimony of a party's

subjective belief is insufficient to create an issue for trial when the beliefs are not

substantiated.76 While a witness is indeed capable of attesting to their own personal

75 See Goodman v. Life Ins. Co. of North America, 244 F.3d 138 (5th Cir. 2000)(citing Boyd v. State Farm

Ins. Cos., 158 F.3d 326, 331 (5th Cir. 1998); Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th

Cir. 1995)(“Although we consider the evidence in the light most favorable to the nonmoving party, ...

conclusory allegations unsupported by concrete and particular facts will not prevent an award of summary

judgment.”)(internal citations omitted); and Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th

Cir. 1985)); see also Miller Exploration Co. v. Energy Drilling Co., 130 F.Supp.2d 781, 785 (W.D. La. 2001).

76 Bickerstaff v. Whitney Natl. Bank, No. 96-30231, 1996 WL 595654, at *3 (5th Cir. Sept. 20, 1996);

Roberson v. Alltel Info. Servs., 373 F.3d 647, 654 (5th Cir. 2004); Armendariz v. Pinkerton Tobacco Co.,

58 F.3d 144, 152-53 (5th Cir. 1995).

experiences and feelings, such testimony cannot create genuine issues of material fact

based on subjective opinions and recitation of legal conclusions. General conclusory

allegations do not become adequate summary judgment evidence simply because they

are put in affidavit form.77

“Rule 701 allows a lay witness to express opinions that are based on the witness's

own perception, helpful in understanding the witness's testimony or to determining a fact

in issue, and not based on scientific, technical, or other specialized knowledge …

However, a witness is not permitted to opine about legal conclusions or to tell the jury

what result to reach.”78

For example, in Pennington v. County of Galveston, the plaintiff submitted an

affidavit in opposing her employer’s motion for summary judgment on the plaintiff’s age-

based harassment and discrimination claims.79 The affidavit was summarized as follows:

According to Pennington's complaint and her own affidavit the County

“intentionally subjected (her) to abusive hazardous and unhealthy working

conditions, ... subjected her to outrageous and offensive verbal abuse” from

“a human resources and professional services director,” subjected her “to

repeated offensive age related statements from department heads and

staff,” required her to work “under a Justice Administrative supervisor who

uttered maliciously and belittling statements to her in front of co-workers”

and exposed her to “unreasonable risks to (her) health and safety.”80

The court granted summary judgment, finding that the plaintiff’s “affidavits are textbook

examples of general allegations and legal conclusions which will not satisfy a

nonmovant[’]s burden.”81

77 Castillo v. Bowles, 687 F.Supp. 277, 280 (N.D.Tex.1998).

78 LeBlanc v. Stoneham, No. 6:16-00283, 2018 WL 344146, at *2 (W.D. La. Jan. 9, 2018)(citing Owen v.

Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983)).

79 No. 6-08-148, 2010 WL 569894 (S.D. Tex. Feb. 11, 2010).

80 Id. at *1.

81 Id. at *2.

Here, Plaintiff’s paragraphs 8,82 18,83 and 2684 are similar to the “textbook

examples of general allegations and legal conclusions” held inadmissible in Pennington.

For the same reasons, these paragraphs are stricken.

3. Sham Affidavit Doctrine

Defendant also raises the sham affidavit doctrine, arguing that some statements

in Plaintiff’s Declaration directly contradict his prior sworn deposition testimony. It is long

settled that the Fifth Circuit “does not allow a party to defeat a motion for summary

judgment using an affidavit that impeaches, without explanation, sworn testimony.”85 A

declaration that contradicts the declarant's deposition testimony will not constitute

sufficient evidence to create a fact issue.86 “‘Conflicts between deposition testimony and

subsequent affidavits or declarations are resolved in favor of the deposition testimony

unless the conflict is explained.’”87

However, the sham affidavit doctrine “‘is applied sparingly’ and may be invoked

only where there is ‘some inherent inconsistency between an affidavit and a

82 “Brandon provided an unsafe environment and discriminated against me and other African Americans by

subjecting us to the unsafe environment and ignoring our complaints of safety issues and racial abuse.

Brandon permitted racist behavior towards me and other African American drivers. Brandon failed to follow

its Employee Handbook and work procedures to prevent the discrimination against me.”

83 “Brandon allowed safety violations to be committed that endangered me and other African American

drivers.”

84 “Brandon failed to discipline or terminate white drivers for behaving inappropriately or committing acts of

abuse against me and other African American drivers.”

85 EEOC v. Modern Group, Ltd., 725 F.Supp.3d 577, 599 (E.D. Tex. 2024)( citing Seigler, 30 F.4th at 477

(quoting S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996)); accord Benedetti v. Wal-Mart

Stores Tex., L.L.C., 788 F. App'x 945, 949 (5th Cir. 2019); Fornah v. Schlumberger Tech. Corp., 737 F.

App'x 677, 682 n.3 (5th Cir. 2018)).

86 Id. (citing Free v. Wal-Mart La., L.L.C., 815 F. App'x 765, 766 (5th Cir. 2020) (citing Doe ex rel. Doe v.

Dall. Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000), cert. denied, 531 U.S. 1073, 121 S.Ct. 766, 148

L.Ed.2d 667 (2001))).

87 Id. (quoting Colindres v. QuietFlex Mfg., 427 F. Supp. 2d 737, 746 (S.D. Tex. 2006) (citing Valleza v. City

of Laredo, 331 F. Supp. 2d 579, 582-83 (S.D. Tex. 2004))).

deposition.’”88 When a subsequent affidavit “merely supplements rather than contradicts

prior deposition testimony, the court may consider the affidavit when evaluating genuine

issues in a motion for summary judgment.”89 An affidavit or declaration is considered

supplementary if it clarifies or provides additional facts not testified to in the prior

deposition and when the prior deposition testimony “only glanced upon the disputed

issue.”90

“The inquiry, as a whole, is aimed at gleaning whether the later affidavit is ‘so

markedly inconsistent with the affiant's prior deposition as to constitute an obvious

sham.’”91 Importantly, “the bar for applying the [sham affidavit] doctrine is a high one,

typically requiring affidavit testimony that is ‘inherently inconsistent’ with prior

testimony.”92 If a court determines that a subsequent affidavit or declaration contradicts

prior deposition testimony, it is properly excluded from consideration on a motion for

summary judgment.93 “Although the court must resolve all factual inferences in favor of

the nonmovant, the nonmovant cannot manufacture a disputed material fact where none

exists.”94

88 Aqrawi v. Am. Mod. Prop. & Cas. Co., 555 F. Supp. 3d 467, 473 (S.D. Tex. 2021) (quoting Guerrero v.

Total Renal Care, Inc., 932 F. Supp. 2d 769, 776 (W.D. Tex. 2013)); Cruz v. R2Sonic, LLC, 405 F. Supp.

3d 676, 684 (W.D. Tex. 2019) (quoting Eure v. Sage Corp., 61 F. Supp. 3d 651, 658 (W.D. Tex. 2014)).

89 Durant v. Brooks, 826 F. App'x 331, 336 (5th Cir. 2020) (quoting S.W.S. Erectors, Inc., 72 F.3d at 496).

90 Sabre Indus. Inc. v. Module X Sols., L.L.C., 845 F. App'x 293, 298 (5th Cir. 2021).

91 Id. (quoting Clark v. Resistoflex Co., 854 F.2d 762, 766 (5th Cir. 1988)); Winzer v. Kaufman County, 916

F.3d 464, 472 (5th Cir. 2019), cert. denied, ––– U.S. ––––, 141 S. Ct. 85, 207 L.Ed.2d 170 (2020).

92 Seigler, 30 F.4th 472, 477 (5th Cir. 2022); Winzer, 916 F.3d at 472.

93 Free, 815 F. App'x at 767 (affirming district court's exclusion of plaintiff's affidavit where she provided no

explanation for its contradictory statements); Bouvier v. Northrup Grumman Ship Sys., Inc., 350 F. App'x

917, 920-21 (5th Cir. 2009) (affirming district court's exclusion of plaintiff's sworn statement, which was

inconsistent with her prior deposition testimony).

94 Klocke v. Watson, 597 F. Supp. 3d 1019, 1025 (N.D. Tex. 2022) (citing Albertson v. T.J. Stevenson &

Co., Inc., 749 F.2d 223, 228 (5th Cir. 1984)), aff'd, No. 22-10348, 2023 WL 2823060 (5th Cir. Apr. 7, 2023);

see Seigler, 30 F.4th at 477 (“[A] nonmoving party may not manufacture a dispute of fact merely to defeat

a motion for summary judgment.” (quoting Doe, 220 F.3d at 386)).

In the present case, while Plaintiff’s Declaration significantly expands on his

deposition testimony, the Court cannot find that, in its entirety, the Declaration flatly

contradicts his prior deposition testimony, except in the following ways. In paragraph 27,

Plaintiff attests that Barnes referred to “us” as “boy” or the n-word. To the extent Plaintiff

includes himself in the “us” with reference to the n-word, this contradicts Plaintiff’s sworn

deposition testimony that he could not recall a time that Barnes directed the n-word at

him,95 and he only recalled Barnes using the n-word with “the other drivers.”96

Accordingly, the Court will disregard that portion of the statement and rely on Plaintiff’s

deposition testimony.

The Court rejects Plaintiff’s contention that testifying “I don’t recall” leaves the door

wide open to expand testimony on key elements of his claims. In Adams Family Tr. v.

John Hancock Life Ins. Co., the Court held that an affidavit could not defeat a motion for

summary judgment where the affidavit affirmatively contradicted the plaintiff's own

testimony.97 In her prior testimony, the plaintiff in Adams Family Tr. stated that she “did

not recall” whether she received certain documents; however, in the subsequent affidavit,

plaintiff averred that she had never received the documents.98 Because the affidavit

contradicted earlier testimony without explanation, the court disregarded the affidavit.99

Similarly, in Free v. Wal-Mart Louisiana, L.L.C., the Fifth Circuit, in an unpublished

opinion, held that the court properly struck an affidavit that, without explanation, conflicted

with prior deposition testimony.100 The plaintiff in Free changed her recollection of key

95 Rec. Doc. 12-4, Plaintiff’s Depo, p. 50.

96 Id. at 51.

97 2010 WL 3256381, at *7 (W.D. La. 2010), aff'd, 424 F. App'x 377 (5th Cir. 2011).

98 Id. at *7.

99 Id.

100 815 F. App'x 765, 766–67 (5th Cir. 2020).

conversations, in a manner that constituted more than mere supplementation of prior

testimony.101 The court concluded that the district court was therefore reasonable in its

application of the sham affidavit doctrine, and the affidavit was properly stricken.102

In paragraphs 30 and 31 of Plaintiff’s Declaration, he attests that Barnes’ urine was

inside the truck. This is contradicted by Plaintiff’s deposition testimony that he did not

see Barnes urinate inside the truck; rather, he assumed the fluid in the truck was urine

because Barnes urinated outside the truck.103 And, Plaintiff has offered no evidence to

substantiate his assumption that urine was inside the truck. Accordingly, these

paragraphs are stricken. In paragraph 35, Plaintiff attests Barnes was racist from the first

day Plaintiff began working for Defendant; this flatly contradicts Plaintiff’s sworn

deposition testimony that he had no problems with Barnes in the first three months Plaintiff

worked for Defendant in 2020, before his resignation. Accordingly, that statement in

Paragraph 35 is stricken.

B. Rico Seldon’s Declaration

Applying the law set forth above, the following Declaration statements by Rico

Seldon are stricken:

 Paragraph 3 which stated that Plaintiff “never refused a route.” This is not

based on personal knowledge and constitutes improper conclusory opinion

testimony.

 Paragraph 4 stating that Defendant “has a huge issue with maintaining

black drivers,” and “they have a history of firing black drivers who made

complaints…” is a conclusory opinion, a generalized allegation, and outside

Seldon’s sphere of responsibility.

 Paragraph 7 stating that “Brandon permitted racism to occur at the company

and implemented racist rules. Also, management would lie and cover up

their wrongdoings” is a conclusory opinion and a generalized allegation. No

101 Id.

102 Id. at 767.

103 See Rec. Doc. 12-4, Plaintiff’s Depo, p. 113

specific facts are provided as to what “lies” were told and what was “covered

up” and how.

 Paragraphs 10-16 are stricken as immaterial. These statements involve

workplace safety and are not connected to race in any way.

 Paragraph 17 states that Antonio Early quit working for Defendant “because

he was tired of the mistreatment and things that African Americans had to

go through,” but he “later came back to Brandon, and he was given a

management position.” Seldon is not competent to testify to another co-

worker’s state of mind. It is speculative, conclusory, and further

contradicted by Early’s Declaration.104 Only Early is competent to testify as

to his state of mind and personal experiences with Defendant.

C. Ira Boatner’s Declaration

Applying the law set forth above, the following Declaration statements by Rico

Seldon are stricken:

 Paragraph 4 stating that Defendant has provided “an unsafe environment

against both work and public policy,” has discriminated against African

Americans by subjecting them to the unsafe environment, ignoring

complaints of safety and racial abuse,” and has “permitted racist behavior

towards the African American drivers” constitute conclusory opinions and

generalized allegations.

 Paragraphs 5 and 6 are immaterial as they relate to workplace safety and

a non-race-based legal action brought by Boatner against Defendant.

 Paragraphs 12, 13, 14, 16, and 17, each of which state that certain

generalized allegations are “act[s] of racial discrimination,” are improper

legal conclusions that Boatner is not competent to make.

III. LAW & ANALYSIS

A. Summary Judgment

In reviewing a party’s motion for summary judgment, the Court will grant the motion

if (1) there is no genuine issue of material fact, and (2) the mover is entitled to judgment

as a matter of law.105 This determination is made “in the light most favorable to the

opposing party.”106 A party moving for summary judgment “‘must “demonstrate the

104 See Rec. Doc. 12-13, Early Declaration.

105 FED. R. CIV. P. 56(a).

106 Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970) (citing United States v. Diebold, Inc., 369 U.S.

654, 655 (1962); 6 V. MOORE, FEDERAL PRACTICE 56.15(3) (2d ed. 1966)).

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

nonmovant’s case.’”107 If the moving party satisfies its burden, “the non-moving party must

show that summary judgment is inappropriate by setting ‘forth specific facts showing the

existence of a genuine issue concerning every essential component of its case.’”108

However, the non-moving party’s burden “‘is not satisfied with some metaphysical doubt

as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by

only a scintilla of evidence.’”109

Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’”110 All reasonable factual

inferences are drawn in favor of the nonmoving party.111 However, “[t]he Court has no

duty to search the record for material fact issues. Rather, the party opposing the summary

judgment is required to identify specific evidence in the record and to articulate precisely

how this evidence supports his claim.”112 “Conclusory allegations unsupported by specific

facts . . . will not prevent the award of summary judgment; ‘the plaintiffs [can]not rest on

his allegations . . . to get to a jury without any “significant probative evidence tending to

support the complaint.”’”113

107 Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003) (quoting Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)); Celotex Corp. v. Catrett, 477 U.S. 317,

323-25 (1986).

108 Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (quoting Morris v. Covan World

Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).

109 Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995) (quoting Little, 37 F.3d at 1075).

110 Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

111 Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).

112 RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).

113 Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir. 1994)

(quoting Anderson, 477 U.S. at 249).

B. Title VII Race Discrimination

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating

against any individual with respect to compensation, terms, conditions, or privileges of

employment because of the individual's race.114 Illegal discrimination is not the same as

simple unfair treatment; indeed, “it has long been the law in this circuit that Title VII ...

do[es] not protect against unfair business decisions[,] only against decisions motivated

by unlawful animus.”115 Moreover, “[m]anagement does not have to make proper

decisions, only non-discriminatory ones,”116 and Title VII is not a vehicle for judicial

second-guessing of business decisions117 because courts do not determine the validity

of an employer's good faith belief about an employee's competence. Thus, the issue is

not whether Defendant treated Plaintiff fairly or whether Defendant’s decision was correct

or erroneous; rather, the only issue is whether Defendant’s decision was racially

motivated.

A plaintiff must present proof of a discriminatory motive.118 A plaintiff may prove

discriminatory motive through either direct or circumstantial evidence.119 Direct evidence

is a “statement or written document showing [the employer's] discriminatory motive on its

114 42 U.S.C. § 2000e-2(a)(1).

115 Nieto v. L&H Packing Co., 108 F.3d 621, (5th Cir. 1997) (citing Turner v. Tex. Instruments, Inc., 555

F.2d 1251, 1257 (5th Cir. 1977), overruled on other grounds by Burdine v. Tex. Dept. of Cmty. Affairs, 647

F.2d 513 (5th Cir. 1981)).

116 Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 480 (5th Cir. 2016) (citing Bryant v. Compass

Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005)).

117 Bell v. Bank of Am., 171 F. App'x 442, 445 (5th Cir. 2006) (citing Walton v. Bisco Indus., Inc., 119 F.3d

368, 372 (5th Cir. 1997)); see also Armendariz, 58 F.3d at 151 n.7 (5th Cir. 1995) (holding that establishing

the employer's reason as misguided is insufficient; rather “the employee at all times has the burden of

proving ... that those reasons were a pretext for unlawful discrimination”).

118 Cicalese v. Univ. of Texas Med. Branch, 924 F.3d 762, 766 (5th Cir. 2019) (citation omitted).

119 Id. (citing Portis v. First Nat'l Bank of New Albany, 34 F.3d 325, 328 (5th Cir. 1994)).

face.”120 The evidence must be direct and unambiguous, allowing for a conclusion without

any inferences or presumptions that an impermissible factor motivated the decision.121

Vague terms are insufficient to plausibly plead discriminatory intent.122 Further, a plaintiff’s

subjective belief that a vague term is discriminatory, no matter how genuine the belief,

cannot provide the basis for relief.123

To prove race discrimination under Title VII, a plaintiff must establish that he is (1)

“a member of a protected class” (2) “was qualified for the position” (3) “was subjected to

an adverse employment action”; and (4) he was replaced by someone outside the

protected class or a similarly situated co-worker outside the protected class was treated

more favorably.124 If a plaintiff establishes a prima facie case of discrimination, the burden

shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse

actions taken. 125 If the defendant satisfies this burden of production, the burden shifts

back to the plaintiff, who must “offer sufficient evidence to create a genuine issue of

120 Portis, 34 F.3d at 329; see also Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)

(“Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or

presumption.”).

121 Moss v. BMC Software, Inc. 610 F.3d 917, 929 (5th Cir. 2010) (internal quotations omitted) (citing EEOC,

100 F.3d 1173 at 1181).

122 See, e.g., Burrell v. Lab. Ready, Inc., No. 09-227, 2012 WL 1565360, at *5 n.13 (M.D. La. Mar. 30,

2012), (stating that the phrase “you people” is not indicative of racial animus and plaintiff's subjective belief

otherwise is insufficient), R.&R. adopted, No. 09-227, 2012 WL 1565620 (M.D. La. Apr. 30, 2012); Stone

v. Par. of E. Baton Rouge, No. 06-401, 2008 WL 4534374, *7 (M.D. La. Sept. 30, 2008) (holding that that

there is nothing directly or indirectly race-based about the words “you people”), aff'd 329 F. App'x 542 (5th

Cir. 2009); Maldonado v. FirstService Residential, Inc., No. 20--1484, 2021 WL 2517542, at *7 (S.D. Tex.

June 18, 2021) (citation omitted) (finding the phrases “those people” and “these people” were insufficient

to state a § 1981 claim); Badaiki v. Schlumberger Holdings Corp., No. 4:20-CV-2216, 2021 WL 6010580,

at *6 (S.D. Tex. Aug. 23, 2021) (citations omitted), R.&R. adopted, 2021 WL 5542144 (S.D. Tex. Nov. 26,

2021), R.&R. adopted, 2021 WL 5769276 (S.D. Tex. Dec. 6, 2021); McLaurin v. Waffle House, Inc., 178 F.

Supp. 3d 536, 549 (S.D. Tex. 2016) (citation omitted); see also Spears v. Patterson UTI Drilling Co., 337

F. App'x 416, 420 (5th Cir. 2009) (finding vague comments insufficient to establish discrimination).

123 Jones v. Gulf Coast Rest. Grp., Inc., 8 F.4th 363, 369 (5th Cir. 2021) (citing Little v. Republic Refining

Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991)).

124 Saketoo v. Tulane Univ. School of Medicine, 510 F.Supp.3d 376, 386 (E.D. La. 2020)(citing Alkhawaldeh

v. Dow Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017) (quoting Lee v. Kansas City S. Ry. Co., 574 F.3d 253,

259 (5th Cir. 2009))).

125 Lee, 574 F.3d at 259.

material fact ‘either (1) that the defendant’s reason is not true, but is instead a pretext for

discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is only

one of the reasons for its conduct, and another motivating factor is the plaintiff’s protected

characteristic (mixed-motive[s] alternative).’”126 Plaintiff proceeds under a pretext theory.

At the pretext stage, the issue is not whether the employer's reason was “correct

or fair, but whether the decisionmakers honestly believed the [stated] reason.”127 Plaintiff

must create an issue regarding whether “the employer honestly believes in the reasons it

offers, not whether [the employer] made a bad decision.”128 Title VII does not permit courts

to sit as a super-personnel department that reexamines an entity's business decisions or

the wisdom of those decisions, only to address whether those decisions are

discriminatory.129 Courts are not to weigh the wisdom of particular employment decisions

nor question every management decision and work assignment; rather, the singular issue

is whether the employer's decision was motivated by discrimination.130

If an employer satisfies its burden of production by articulating a legitimate,

nondiscriminatory reason for its decision, the presumption of discrimination “simply drops

out of the picture,” and the plaintiff must prove that the defendant intentionally

126 Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004); see also Vaughn v. Woodforest Bank,

665 F.3d 632, 637 (5th Cir. 2011) (citing same in the context of a Title VII race discrimination case).

127 Harville v. City of Houston, 945 F.3d 870, 877 (5th Cir. 2019)(citing Sandstad v. CB Richard Ellis, Inc.,

309 F.3d 893, 899 (5th Cir. 2002) (“The issue at the pretext stage is whether Appellee's reason, even if

incorrect, was the real reason for Appellant's termination.”)); Goudeau v. Nat'l Oilwell Varco, L.P., 793 F.3d

470, 476 (5th Cir. 2015) (citation omitted).

128 Harris v. Double G. Coatings, Inc., No. 96-60485, 1997 WL 255619, at *2 n.4, *7 (5th Cir. 1997) (citations

omitted).

129 Eyob v. Mitsubishi Caterpillar Forklift Am., Inc., 745 F. App'x 209, 212 (5th Cir. 2018) (citations omitted);

Harris v. Double G. Coatings, Inc., No. 96-60485, 1997 WL 255619, at *2 n.4 (5th Cir. 1997) (citing Ruby

v. Springfield R-12 Public School Dist., 76 F.3d 909, 912 n.7 (8th Cir. 1996)).

130 See McVille v. Inter-Cmty. Healthcare, Inc., 460 F. App'x 353, 355 (5th Cir. 2012) (citing Hutson v.

McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995); Deines v. Tex. Dep't of Protective & Reg.

Servs., 164 F.3d 277, 281 (5th Cir. 1999)).

discriminated against the plaintiff because of a protected characteristic.131 A plaintiff

satisfies this burden by establishing pretext either through evidence of disparate

treatment or by showing that the employer's proffered explanation is false or unworthy of

credence,132 i.e., that the employer's articulated reasons were not its true reasons but a

pretext for discrimination.133 A plaintiff's prima facie case, “combined with sufficient

evidence to find that the employer's asserted justification is false, may permit the trier of

fact to conclude that the employer unlawfully discriminated.”134 “Even in the face of

sufficient evidence for a reasonable factfinder to find pretext and reject the

nondiscriminatory reason, if no rational factfinder could conclude that the action was

discriminatory, such as when the record conclusively reveals some other,

nondiscriminatory reason for the decision, or if the plaintiff creates only a weak issue of

fact as to whether the employer's reason was untrue and there is abundant and

uncontroverted independent evidence that no discrimination occurred, summary

judgment will be proper.”135

It is undisputed that Plaintiff has satisfied the first three prongs of his prima facie

case. The parties dispute whether Plaintiff has presented summary judgment evidence

to satisfy the fourth prong, which requires Plaintiff to demonstrate that he was replaced

by someone outside the protected class or that other similarly situated employees outside

Plaintiff’s protected class were treated more favorably. Defendant has presented

131 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510–11 (1993) (citations omitted).

132 Harville, 945 F.3d at 879 (citation omitted).

133 Goudeau, 793 F.3d 470, 476 (5th Cir. 2015) (citing Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 231

(5th Cir. 2015) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000))).

134 Reeves, 530 U.S. at 148; Williams v. Waste Mgmt., Inc., 818 F. App'x 315, 319 (5th Cir. 2020) (citation

omitted); see also St. Mary's Honor Ctr., 509 U.S. at 511.

135 Douglas v. St. John Baptist Parish Library Board of Control, No. 21-599, 2022 WL 898746 at *12 (E.D.

La. Mar. 28, 2022)(citing Harville, 945 F.3d at 876-77(citation omitted)).

uncontroverted evidence that Plaintiff was replaced by a African American driver, and one

month later, Barnes was also replaced by an African American driver.136 Thus, the Court

must determine if Plaintiff has established that he was treated less favorably than a

similarly situated comparator.

1. Similarly Situated Comparators

The law is clear that, “[i]n the context of a race discrimination claim, where the

plaintiff alleges that employees who were not members of the protected class received

more [favorable treatment], the plaintiff must come forward with specific evidence of

comparators who were similarly situated.”137 Courts within the Fifth Circuit define

“similarly situated” narrowly.138 In evaluating whether an alleged comparator is similarly

situated,

“The employment actions being compared will be deemed to have been

taken under nearly identical circumstances when the employees being

compared held the same job or responsibilities, shared the same supervisor

[,] or had their employment status determined by the same person[.]”139

“Employees with different supervisors, who work for different divisions of a

company ... generally will not be deemed similarly situated.” The Fifth Circuit

has further explained, that “employees who have different work

responsibilities ... are not similarly situated.”140

Additionally, a proper comparator is one that shares with a plaintiff “essentially

comparable violation histories.”141

136 Rec. Doc. 12-1, Scichowski Declaration, ¶¶ 19-20.

137 Corley v. Louisiana ex rel. Div. of Admin., Office of Risk Mgmt, 816 F.Supp.2d 297, 316 (M.D. La.

2011)(citing Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 259–60 (5th Cir. 2009))(emphasis added).

138 See Horton v. G4S Secure Solutions (USA), Inc., No. 16-544-SDD-EWD, 2018 WL 1997535 at *5 (M.D.

La Apr. 27, 2018)(citing Brown v. Bd. of Trustees Sealy Indep. Sch. Dist., 871 F.Supp.2d 581, 593 (S.D.

Tex. 2012); see also Lopez v. Kempthorne, 684 F. Supp. 2d 827, 856-57 (S.D. Tex. 2010)).

139 Id. (quoting Turner v. Kansas City S. Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012)(quoting Lee v. Kan. City

S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009))).

140 Id. (quoting Lee, 574 F.3d at 259 (citing Wyvill v. United Cos. Life Ins., 212 F.3d 296, 302 (5th Cir.

2000)).

141 Lee, 574 F.3d at 260 (citations and footnotes omitted).

Defendant maintains Plaintiff has failed to present summary judgment evidence

that a similarly situated white driver refused a route but was not terminated. Plaintiff

responds, arguing that he has identified Barnes, a white driver, as a similarly situated

employee who was treated more favorably than Plaintiff (and other African American

drivers) because he was catered to, assigned a trailer in good condition, African American

drivers were required to assist Barnes in adjusting his truck, and African American drivers

were assigned unsafe trailers. Plaintiff also contends Barnes’ complaints were taken

seriously, while the workplace safety and racial discrimination complaints of Plaintiff (and

other African American drivers) were dismissed. Finally, Plaintiff maintains that Barnes

was not fired after the October 8, 2021 incident where he publicly exposed himself,

urinated all over the truck, approached Plaintiff aggressively, and made racially offensive

comments.142

Defendant counters, arguing that Plaintiff’s offered evidence does not meet the

standard of demonstrating a comparator in “nearly identical circumstances.” Despite

complaints of Barnes’ conduct, Plaintiff has failed to present evidence that Barnes refused

to run a route but was not terminated.

Plaintiff responds, arguing that Plaintiff “did in fact identify a true comparator in his

‘Memorandum in Opposition’, based on the actual definition of Prima Facie.”143 Plaintiff

maintains that he never refused to run a route; thus, a similar comparator is not one who

refused to run a route because Plaintiff rejects that narrative. However, this is not the law.

First, Plaintiff’s claim that he did not refuse to run his route is semantic hair-splitting

142 Rec. Doc. 18-2, Scott Declaration, ¶¶ 8-10, 13, 17, 19, 24, 27, 29; Rec. Doc. 18-8, Boatner Declaration,

¶¶ 7, 9; Rec. Doc. 18-9, Seldon Declaration, ¶¶ 10, 12-13.

143 Rec. Doc. 26, pp. 6-7.

and disingenuous based on his own sworn testimony. During his deposition, Plaintiff was

presented with the Termination Memo prepared by Scichowski. He was asked about

Scichowski’s note that Plaintiff: “Stated he does not feel comfortable driving truck share

with another driver. Refused to run his route.”144 Plaintiff was asked:

Q: Okay. And that’s all true; correct?

A: Yes, but I didn’t feel comfortable because he urinated all over the truck - -

Q: Okay.

A: - - and it wasn’t properly sanitized.

Q: Okay. And - - did you tell Mike that Friday before that you weren’t going to

drive the truck that day; correct?

A: Until it was properly sanitized. I never refused the route. I just said that I

would like the truck to be properly sanitized.145

Scichowski noted that “there was another truck on site but Tevin does not know

how to drive a manual transmission.”146 Plaintiff did not controvert this evidence, and

admitted that he was not qualified to drive a manual transmission.147 The Court rejects

Plaintiff’s game of semantics regarding his refusal to drive the route. While it is clear

Scichowski did not sanitize the truck to Plaintiff’s satisfaction, Plaintiff refused to drive his

route. Once Scichowski cleaned the truck and offered it to Plaintiff, Plaintiff options were

then to drive his route or go home. Plaintiff did not get in the truck and drive his route; his

justification, whether reasonable or not, does not change this fact.

Next, Plaintiff’s purported interpretation of satisfying his prima facie case turns a

wealth of jurisprudence on its head. While Plaintiff is free to argue that the given reason

for termination – refusal to run a route – is pretext for discrimination, he cannot skip over

144 Rec. Doc. 12-4, Scott Depo, p. 93; Rec. Doc. 12-3.

145 Rec. Doc. 12-4, Scott Depo, p. 93:18-25 through p. 94:1-3.

146 Rec. Doc. 12-3.

147 Rec. Doc. 12-4, Scott Depo, p. 96.

the requirement of meeting the prima facie case as explained by the Fifth Circuit. In

describing “nearly identical circumstances,” the Fifth Circuit has instructed that, “critically,

the plaintiff's conduct that drew the adverse employment decision must have been ‘nearly

identical’ to that of the proffered comparator who allegedly drew dissimilar employment

decisions.”148 The bottom line is that Plaintiff had a route to drive on October 8, 2021,

and he chose, whether reasonably or otherwise, not to drive it with the only truck he was

qualified to drive. Plaintiff has failed to point to a similarly situated comparator outside his

protected class who committed this conduct in the same context and was not

terminated.149 Accordingly, Plaintiff has failed to satisfy the fourth prong of his prima facie

case of discrimination.

2. Same Actor Inference

Defendant also raised the “same actor” inference. “[T]he ‘same actor’ inference

creates a rebuttable presumption that an adverse action imposed on a plaintiff was not

the result of unlawful discrimination when the same person both hires and fires, or

imposes some other adverse action, on the plaintiff.”150 “[T]he inference is stronger when

(1) there is close temporal proximity between the favorable employment action and the

adverse action, and (2) the decision maker is in the same protected category as the

148 Hardison v. Skinner, No. 20-30643, 2022 WL 2668514 at *3 (5th Cir. July 11, 2022)(quoting Lee v.

Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009)(emphasis added)(citing Perez v. Tex. Dep't of

Crim. Just., 395 F.3d 206, 213 (5th Cir. 2004))).

149 Plaintiff testified that Seldon may have refused a route at some unspecific time (Rec. Doc. 12-4, Plaintiff’s

Depo, p. 120); however, Seldon is also African-American, and this evidence is too vague and speculative

to constitute competent summary judgment evidence on this issue.

150 Williams v. Louisiana, No. CV 14-00154-BAJ-RLB, 2015 WL 5318945, at *8 (M.D. La. Sept. 11, 2015)

(citing Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir.1996) (abrogated in part on other grounds,

Russell v. McKinney Hosp. Venture, 235 F.3d 219 (5th Cir.2000)); Trevino v. City of Fort Worth, No. 4:12–

CV–717–A, 2013 WL 4516643, at *7 (N.D.Tex. Aug. 23, 2013).

plaintiff.”151

Given that Scichowski hired Plaintiff twice and then terminated Plaintiff, the Court

finds that the “same actor” inference applies. It is also relevant that Scichowski replaced

both Plaintiff and Barnes with African American drivers, and record evidence regarding

the ethnic makeup of Defendant’s staff suggests that Scichowski has no problem hiring

African American employees. Even so, the Fifth Circuit has “decline[d] to establish a rule

that no inference of discrimination could arise under such circumstances.”152 In other

words, the “same actor” inference is neither mandatory nor irrebuttable. But, if “the non-

moving party has otherwise failed to raise a genuine dispute as to a material fact, the

‘same actor’ inference simply reinforces [sic] [D]efendant’s submission with respect to

[Plaintiff’s] race discrimination claim.”153

Plaintiff testified that he could not recall Scichowski ever saying anything racially

offensive to him.154 Although Scichowski is not in the same protected class as Plaintiff,

he re-hired Plaintiff close in time to terminating Plaintiff – February 2021 to October 2021

– which supports application of the inference. Finally, Plaintiff failed to address or provide

any argument against application of the same actor inference.

Accordingly, summary judgment is granted in favor of Defendant on Plaintiff’s Title

VII race discrimination claim as he has failed to make a prima facie case.155

151 Jones v. Wells Fargo, No. 17-8712, 2019 WL 4601602, at *12 n.24 (E.D. La. Sept. 23, 2019) (citations

omitted).

152 Haun v. Ideal Indus., Inc., 81 F.3d 541, 546 (5th Cir. 1996).

153 Jones, 2019 WL 4601602, at *12.

154 Rec. Doc. 12-4, Scott Depo, p. 32

155 Had Plaintiff satisfied his prima facie case, the Defendant’s legitimate, nondiscriminatory reason for his

discharge is that Plaintiff refused to drive his route. The pretext analysis that the Court would conduct here

is set forth infra. in addressing Plaintiff’s retaliation claim.

C. Title VII Hostile Work Environment

Title VII also makes it unlawful for employers to require “people to work in a

discriminatorily hostile or abusive environment.”156 “A hostile work environment claim is

composed of a series of separate acts that collectively constitute one ‘unlawful

employment practice.’”157

A race-based harassment/hostile-work environment claim requires that a plaintiff

establish a prima facie case that (1) he is a member of a protected class; (2) he was

subject to unwelcome harassment; (3) the harassment was based upon his race; (4) the

harassment affected a term or condition of her employment; and (5) the employer knew

or should have known about the harassment and failed to take prompt remedial action.158

For harassment to affect a term, condition, or privilege of employment, it must be

“sufficiently severe or pervasive to alter the conditions of [the victim's] employment and

create an abusive working environment.”159 To meet this standard, the conduct

complained of 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.”160

Critically, Title VII is not a ‘general civility code.’”161 “Simple teasing, offhand

156 Wantou v. Wal-Mart Stores Tex., L.L.C., 23 F.4th 422, 432–33 (5th Cir. 2022) (quoting Gardner v. CLC

of Pascagoula, L.L.C., 915 F.3d 320, 325 (5th Cir. 2019) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,

21 (1993))).

157 Id. (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 106 (2002) (quoting 42 U.S.C. § 2000e-

5(e)(1))).

158 West v. City of Houston, 960 F.3d 736, 741 (5th Cir. 2020) (per curiam) (citation omitted).

159 Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 434 (5th Cir.2005) (quoting Meritor Sav. Bank,

FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)).

160 Aryain v. Wal–Mart Stores of Tex. LP, 534 F.3d 473, 479 (5th Cir.2008); see also Harris v. Forklift

Systems, Inc., 510 U.S. 17, 21–22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

161 Heath v. Southern University System Foundation, 2017 WL 2972909 at *5 (quoting Faragher, 524 U.S.

at 788 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)) (explaining that the

elements of a hostile work environment claim “are sufficiently demanding to ensure that Title VII does not

become a ‘general civility code.’”); Clark v. S. Broward Hosp. Dist., 601 Fed.Appx. 886, 900 (11th Cir. 2015)

comments, and isolated incidents (unless extremely serious) will not amount to

discriminatory changes in the terms and conditions of employment.”162 Under federal law,

the mere utterance of ethnic or racial epithets that engender offensive feelings in an

employee, offhand comments, and isolated incidents (unless extremely serious) will not

amount to discriminatory changes in the terms, conditions, and privileges of

employment.163 The Court looks to the totality of the circumstances, considering “(1) the

frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically

threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably

interferes with an employee's work performance.”164 Generally, poor performance

evaluations, “write-ups,” and work criticism, even if unjust and unfair and in front of peers,

do not rise to the level of a hostile work environment.165

Plaintiff contends he was subjected to a racially hostile work environment based

on the following: Plaintiff attests that Barnes was “known for his racist and inappropriate

behavior,” stating that Barnes attacked Plaintiff and other African American drivers “on

multiple occasions without provocation”;166 Barnes used profanity against Plaintiff and the

other African American drivers and often called them “boy” and the n-word;167 the

comment Barnes made to Plaintiff after his infant son passed that “[y]ou’re a young

(quoting Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1234 (11th Cir. 2006)) (“Title VII

is not a ‘general civility code’ and does not make ‘ordinary [workplace] tribulations’ actionable, so not all

objectionable language and conduct will support a Title VII harassment claim.”) (alteration in original );

Reine v. Honeywell Int'l Inc., 362 Fed.Appx. 395, 397–98 (5th Cir. 2010) (“This high standard for judging

hostility is specifically intended to prevent Title VII from becoming a ‘general civility code’ for the

workplace.”)).

162 Faragher, 524 U.S. at 788 (internal quotation marks and citation omitted).

163 See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Lauderdale v. Tex. Dep't of Criminal

Justice, Inst. Div., 512 F.3d 157, 163 (5th Cir. 2007).

164 Rodrigue v. PTS Management Group, LLC, 550 F.Supp.3d 376, 397 (W.D. La. 2021)(quoting West v.

City of Houston, Texas, 960 F.3d 736, 742 (5th Cir. 2020); Harvill, 433 F.3d at 435).

165 See Kang v. Bd. of Supervisors, 75 Fed.Appx. 974, 975–76, 977 (5th Cir.2003).

166 Rec. Doc. 18-2, Scott Declaration, ¶ 27.

167 Id.

African American man, you can just make more of them;”168 and the October 8, 2021

incident when Barnes urinated outside the truck and said “F*** you, boy” to Plaintiff.169

Plaintiff also maintains that Scichowski’s management of the situation contributed

to the hostile work environment in the following ways: Barnes’ offensive conduct was

routinely reported to Scichowski with no discipline or termination to follow; Scichowski

required Plaintiff and the other African American drivers to “cater” to Barnes by adjusting

his truck equipment when he returned from a route; Scichowski took seriously Barnes’

complaints about truck adjustments while Scichowski did not take seriously complaints

by African American drivers about Barnes’ racist behavior, general abuse, or safety

issues;170 Barnes was provided well-maintained trucks, trailers, and equipment while

Plaintiff and other African American drivers were given substandard equipment they

believed to be dangerous;171 and Scichowski did not provide proper safety equipment to

African American drivers.172

Defendant moves for summary judgment on Plaintiff’s hostile work environment

claim, arguing that Plaintiff fails to establish a prima facie case of racial

harassment/hostile work environment. Defendant claims Plaintiff only recalled two direct

instances of racial comments by Barnes – the comment made after his son died, and the

“F*** you, boy” on October 8, 2021. The time span between these two instances was

eight months. When Plaintiff was asked in his deposition if he remembered any other

instances that Barnes used a racial epithet towards him aside from these, Plaintiff

168 Id. at ¶ 28.

169 Id. at ¶ 29.

170 Id. at ¶ 25.

171 Id. at ¶¶ 19, 24.

172 Id. at ¶ 22.

testified: “Not that I can recall, no.”173 When asked how often Barnes used the term “boy”

and under what circumstances, Plaintiff responded: “Every time he was upset. A lot of

stuff, I tried to just I guess you could say mute out, blank out, and try to keep working …

like every time he got upset, he’ll – or just – I don’t know what. He just – that’s just how

he’ll be talking to us.”174 Plaintiff testified that Barnes was “a very angry person” and that

he used the term boy “a lot,” but Plaintiff could not give a number.175

Plaintiff argues that he has presented sufficient evidence of a racially hostile work

environment. Plaintiff points to his deposition testimony that Barnes always referred to

him and other African American employees as “boys, and he just said ‘N’ words to people.

The whole time, he was saying things that were racist, and I reported it, and nothing

happened.”176 When pressed how many times Barnes said the n-word, Plaintiff

responded “I don’t know exactly, but he – he used it.”177 Plaintiff contends the evidence

and testimony presented in opposition to Defendant’s summary judgment establishes a

prima facie case for his hostile work environment claim.

Before turning to the prima facie elements for this claim, the Court must address

Defendant’s challenge to Plaintiff’s “me too” evidence. Defendant claims the evidence of

alleged harassment suffered by Plaintiff’s co-workers is the type of “me too” evidence

courts do not consider in evaluating a hostile work environment claim. In Celestine v.

Petroleos de Venezuela SA.,178 the plaintiff relied upon the racial harassment claims

heard by others to support his hostile work environment claim.179 The Fifth Circuit

173 Rec. Doc. 12-4, Scott Depo, p. 50.

174 Id.

175 Id. at pp. 50-51.

176 Rec. Doc. 26-1, Scott Depo, p. 49.

177 Id.

178 108 Fed. Appx. 180 (5th Cir. 2004).

179 Id. at 187-88.

classified the racial harassment heard by other employees as “hearsay; things that other

employees told him[.]”180 The Fifth Circuit upheld the district court’s dismissal of the

plaintiff’s hostile work environment claims in Celestine because, as the “[plaintiff]

established no act adverse to him [], he could not establish a hostile work environment

claim.”181 This was also the holding Saketkoo v. Tulane University School of Medicine,

wherein the Eastern District of Louisiana noted that “the Fifth Circuit has found conduct

that a plaintiff ‘did not personally experience’ insufficient to render the plaintiff's own

experience severe or pervasive.”182

However, in Hernandez v. Yellow Transportation Incorporated, the Fifth Circuit

shifted away from this bright line rule.183 Hernandez involved claims brought by three

separate plaintiffs under Title VII for hostile work environment and retaliation based on

race.184 Specifically, the case involved one Mexican American plaintiff who brought claims

for both hostile work environment and retaliation, one Mexican American plaintiff who

brought only a claim for hostile work environment, and one white plaintiff who brought

claims for hostile work environment and retaliation.185 On appeal, the Fifth Circuit

considered whether the district court had wrongfully excluded plaintiffs’ proffered

evidence regarding harassment directed at other Hispanics and African Americans.186

The district court held that to establish a hostile work environment claim, the plaintiff must

180 Id. at 187.

181 Id. at 188 (original emphasis).

182 510 F.Supp.3d 376, 401 (E.D. La. 2020)( quoting Septimus v. University of Houston, 399 F.3d 601, 612

(5th Cir. 2005); see Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 652 (5th Cir. 2012) (questioning

whether Septimus dictates “that evidence regarding other workers is never relevant” but concluding that it

mandates at least that the “harassment must have affected a term, condition, or privilege of the victim's

employment” (quotations omitted and emphasis added))).

183 670 F.3d 644, 653-54 (5th Cir. 2012).

184 Id. at 649.

185 Id.

186 Id. at 652.

personally experience racial harassment, and instances involving other employees were

therefore irrelevant.187

In reviewing that decision, the Fifth Circuit cautioned against the proposition that

evidence regarding other workers could never be relevant in a hostile work environment

claim and explicitly noted that in Shattuck v. Kinetic Concepts, the Fifth Circuit held that

evidence of discrimination against other members of a plaintiff's protected class was

admissible in a discrimination claim.188 The plaintiff in Shattuck succeeded on a failure to

promote age discrimination claim, and on review, the Fifth Circuit held, “[t]here is no

proscription of evidence of discrimination against other members of the plaintiff's

protected class; to the contrary, such evidence may be highly probative, depending on

the circumstances.”189

Nevertheless, the Fifth Circuit, in 2023, and numerous courts within the circuit have

held that “‘second-hand’ harassment,” although relevant, is “less objectionable than

harassment directed at the plaintiff.”190 The Court interprets the Fifth Circuit jurisprudence

on this issue to indicate that it is proper for the Court to consider second-hand co-worker

harassment in a Title VII hostile work environment claim, but claims of non-party second-

hand harassment will not save a plaintiff with an otherwise weak case.191 With this in

187 Id.

188 Id. (citing Shattuck, 49 F.3d 1106, 1109 (5th Cir. 1995)).

189 Shattuck, 49 F.3d at 1109-10.

190 Arredondo v. Elwood Staffing Services, Inc., 81 F.4th 419, 433 (5th Cir. 2023)(quoting Johnson v. TCB

Const. Co., Inc., 334 F. App’x 666, 671 (quoting Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 903 (7th Cir.

2005))); see also Jordan v. Downtown Development District, No. 2:21-CV-01323, 2023 WL 9423241, at *3

(citation omitted); Weber v. Leson Chevrolet Company, Inc., No. 22-00910, 2024 WL 4024774, at *3 (E.D.

La. Sept. 3, 2024)(citations omitted); Boutin v. Exxon Mobil Corp., 730 F.Supp.2d 660, 671 (S.D. Tex.

2010)(citations omitted); Sacks v. Texas Southern University, No. H-18-3563, 2021 WL 4150883, at *7

(S.D. Tex. Jan. 25, 2021)(citations omitted).

191 See e.g., Brown v. Valvoline, LLC, No. 4:22-cv-04059, 2024 WL 990056 at *4, n. 1 (S.D. Tex. Mar. 7,

2024)(“Given that comments directed at other employees constitute the totality of the racially motivated

harassment allegations against Motz, the Court finds that this is insufficient to state a plausible claim for

relief against Motz under Twombly, 550 U.S. at 544, 127 S.Ct. 1955.”).

mind, and subject to the Court’s evidentiary rulings above, the Court will consider

evidence of second-hand harassment by Plaintiff’s co-worker under the totality of the

circumstances.

Turning to the prima facie elements of a hostile work environment claim, Plaintiff

has satisfied the first two elements: he is a member of a protected class, and he was

subjected to unwelcome harassment. However, Plaintiff has failed to present sufficient

summary judgment evidence to establish elements three and four.

1. Harassment Based on Race

While Plaintiff has presented some evidence of racially insensitive comments and

the use of the n-word by Barnes, a great deal of conduct subjectively perceived by Plaintiff

to be race-based finds no support in the record or in jurisprudence. A mere difference in

race, “[w]ithout more, ... does not support a finding that [plaintiff] suffered race ...-based

harassment.”192

a. Use of the Term “Boy”

Plaintiff has presented evidence that Barnes often used the term “boy” when

talking to him and other African American drivers. While the use of the term “boy” in

certain contexts may constitute a racial epithet, Plaintiff has not presented evidence to

establish that is the case here. While the Fifth Circuit has recognized that even the single

use of a racial epithet may support a hostile work environment claim when that incident

is sufficiently severe under the totality of the circumstances test, the term “boy” is not an

unambiguous racial epithet as is the N-word.193 In Chambliss v. Entergy Corporation, the

192 Byrnes v. City of Hattiesburg, 662 Fed.Appx. 288, 290-91 (5th Cir. 2016) (citing Hernandez, 670 F.3d at

652).

193 Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (noting that the word “boy” may not always be

benign depending on “context, inflection, tone of voice, local custom, and historical usage”); see also, e.g.,

court noted that, while the plaintiff in that case “may have subjectively felt the term

reflected discriminatory animus, it is not an objectively race-based statement,” and the

“use of the term ‘boy’ … is an ambiguous term that may be derogatory in certain contexts

and race-neutral in others.”194

Further problematic for Plaintiff, Defendant presented uncontroverted summary

judgment evidence that Barnes called all co-workers “boy,” whether white or African

American. Lloyd Prater, who is African American, and was Defendant’s Warehouse

Manager for over twenty years – including the time of Plaintiff’s employment – attested

that he worked with Barnes for approximately seven years, and during that time, he heard

Barnes refer to both white and African American employees as “boy.”195 Prater’s

successor as Warehouse Manager, Antonio Early, who is also African American, also

attested that he worked with Barnes for seven years, and he also heard Barnes call both

white and African American employees “boy.”196 In Simmons v. Triton Elevator, LLC, the

court addressed a case involving similar claims.197 The African American plaintiff in

Simmons presented evidence that several white co-workers routinely referred to him as

“boy” and “brother.”198 However, there was also evidence that these terms were not used

exclusively in reference to the plaintiff, or even to persons of color, and the Court rejected

Plaintiff’s hostile work environment claim finding, in part, that the use of the term “boy”

Cavalier v. Clearlake Rehab. Hosp., Inc., 306 F. App'x 104, 107 (5th Cir. 2009) (three comments, including

two involving the use of the word “boy,” did not “rise to the level of severity or pervasiveness required to

show a hostile work environment”); Collier v. Dallas Cnty. Hosp. Dist., 827 F. App'x 373 (5th Cir. 2020)

(noting that, though disturbing, two instances of racial graffiti and being called “boy” are insufficient to

establish a hostile work environment under Fifth Circuit precedent).

194 No. 22-2488 DIV.2 CONMAG, 2023 WL 7114669, at *13 (E.D. La. Oct. 27, 2023).

195 Rec. Doc. 12-12, Prater Declaration, ¶¶ 2, 3, 5.

196 Rec. Doc. 12-13, Early Declaration, ¶¶ 2, 3, 4, 5.

197 557 F.Supp.3d 767 (N.D. Tex. 2021).

198 Id. at 778.

was neither race-based under the circumstances nor severe or pervasive.199 Thus, the

Court finds that Barnes’ use of the term “boy,” was not a race-based term as used in this

context.

b. Unspecified “Microaggressions”

Plaintiff also testified that he and other African American employees were

subjected to unspecified microaggressions. When asked in his deposition what Plaintiff

meant by his statement that he suffered “other microaggressions” by Barnes, Plaintiff

testified “[j]ust like after he urinated and the way he said, ‘F you, boy.’”200 This is the only

“microaggression” that Plaintiff identified and explained.

There is scant caselaw on the legal definition of microaggression, which is

understandable as it is a relatively new term in American culture. The few courts

addressing this term have either adopted a party’s definition or simply applied the

Merriam-Webster Dictionary definition. The Court will use the dictionary definition for

purposes of this motion. Merriam-Webster defines microaggression as “a comment or

action that subtly and often unconsciously or unintentionally expresses a prejudiced

attitude toward a member of a marginalized group (such as a racial minority).” By its very

definition, a microaggression may be subjectively perceived as race-based but is not

necessarily race-based or ill-intentioned by the alleged aggressor. Without further

explanation about the purported microaggressions Barnes committed against Plaintiff, the

one microaggression identified is not overtly race-based, particularly considering the

Court’s findings above about Barnes’ use of the term “boy.” Further, the general

199 Id.

200 Rec. Doc. 12-4, Plaintiff Depo at pp. 114-115.

accusation of “microagressions” is the type of non-specific, vague evidence insufficient to

establish a hostile work environment claim.

c. General Allegations of Racism and Barnes’ Hostility

Plaintiff testified that Barnes was generally “an angry person,” who regularly used

profanity and provoked fights with co-workers. Plaintiff attributes this general hostility and

every single altercation involving Barnes to racism. “However, hostile work environment

jurisprudence ‘does not prohibit all verbal or physical harassment in the workplace.’”201

Plaintiff fails to provide sufficient specific evidence required to escape summary judgment.

As discussed above, “the non-moving party must show that summary judgment is

inappropriate by setting ‘forth specific facts showing the existence of a genuine issue

concerning every essential component of its case.’”202 “The party opposing the summary

judgment is required to identify specific evidence in the record and to articulate precisely

how this evidence supports his claim.”203 The Plaintiff has identified only two specific

instances of purported racial harassment by Barnes: the comment made after Plaintiff’s

son passed away and the “F--- you Boy” during the urination incident. All other allegations

of Barnes’ purported abuse of Plaintiff and other African American co-workers is general

and not specific or precise. For example, Plaintiff admits Barnes never used the n-word

towards him but claims he used it “a lot.” Despite alleging its use “a lot” and “the whole

time,” when asked who Plaintiff witnessed Barnes use the n-word towards, he testified:

“[t]he other drivers, like him and Rico [Seldon], they – and he had an incident with Ira.”

201 Arredondo v. Schlumberger Ltd., 583 F.Supp.3d 783, 803 (W.D. Tex. 2022)(quoting Dediol v. Best

Chevrolet, Inc., 655 F.3d 435, 443 (5th Cir. 2011) (citation omitted)).

202 Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (quoting Morris v. Covan World

Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998))(emphasis added).

203 RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010)(emphasis added).

This was the only specific time Plaintiff claims he heard Barnes use the n-word. In his

Declaration, Plaintiff attests generally that:

Richard Barnes was known for his racist and inappropriate behavior.

Richard Barnes has attacked me and the other African American drivers on

multiple occasions without provocation. Richard Barnes would use

profanity towards me and the other African American drivers and referred

to us as “boy” or the n-word. Barnes was always angry, and he took this

anger out on me and the other African American drivers. Brandon did not

terminate Barnes for these ongoing racist acts.204

This statement is rife with generalities. It also refers to several actions that are not

inherently race-based, like the use of profanity, the term “boy,” or Barnes being a

generally angry person. The “attacks” are not specified as verbal or physical, and the

context in which they occurred is not provided. And Plaintiff directly contradicts his

deposition testimony that he could not recall Barnes ever directing the n-word at him,

attesting in his Declaration that Barnes referred to “us” as “boy” or the n-word.

Ira Boatner’s Declaration fares no better. Boatner refers to non-specific racist

behavior, racial abuse, microaggressions, and mistreatment of African Americans by

Barnes.205 He attests that Barnes is a “known racist” who “picked unprovoked fights” with

African Americans. Boatner attests he witnessed Barnes provoke a physical fight with

Seldon, and Boatner “broke it up.”206 Boatner describes the fight as being based on

Barnes’ complaint that Seldon did not turn off his truck’s headlights while Barnes was

attempting to park.207 The only other specific instance Boatner describes is an instance

when he did not adjust the truck to Barnes’ liking before turning it over, and Barnes

204 Rec. Doc. 18-2, Scott Declaration, ¶ 27.

205 Rec. Doc. 18-8, Boatner Declaration, ¶¶ 7-8.

206 Id. at ¶ 11.

207 Id.

complained about this to Scichowski. Neither instance contains any reference to

evidence that race was a motivating factor.

Seldon’s Declaration is equally unhelpful. Seldon describes the truck headlights

fight with Barnes but does not give any specifics as to how this incident was racially

motivated other than to generally say that Barnes was a “heavy perpetrator of racism.”208

Seldon attests that Barnes “was very mean to me and other African Americans.” He

would “pick unprovoked fights” and “stare[] in an intimidating way” at African

Americans.209 Seldon describes an incident where a different white driver – not Barnes –

called him the n-word, and he claims that this employee was not fired for this.210 However,

Seldon does not describe a single incident when Barnes directed the n-word at him.

Moreover, Seldon does not describe specifically or precisely how Barnes’ alleged conduct

was connected to Seldon’s race.

In Barkley v. Singing River Elec. Power Ass’n, the Fifth Circuit addressed a claim

of racial hostile work environment, holding that “generalized allegations cannot defeat

summary judgment.”211 This Court also held in Adams v. United Ass’n of Journeymen and

Apprentices of the Plumbing and Pipefiting Industry of the United States and Canada,

AFL-CIO, LOCAL 198 that “[g]eneral allegations that fail to reveal detailed and precise

facts will not prevent the award of summary judgment.”212 In Wallace v. Texas Tech

University, the Fifth Circuit affirmed summary judgment in favor of the defendant on the

208 Rec. Doc. 18-9, Seldon Declaration, ¶¶ 8-9.

209 Id. at ¶ 8.

210 Id. at ¶ 5. Defendant disputes this fact and offers sworn testimony that Scichowski terminated this

employee before he returned to work the next day and claimed to “quit.” See Rec. Doc. 22-1, Scichowski

Supp Declaration, ¶ 8.

211 433 F. App’x 254, 258 (5th Cir. 2011).

212 469 F.Supp.3d 615, 626 (M.D. La. 2020)(citing Walton v. Alexander, 20 F.3d 1350, 1352 (5th Cir.

1994)(emphasis added).

plaintiff’s hostile work environment claim because the plaintiff claimed the harasser

“routinely [made] racist remarks;” the court found that “if there were specific evidence of

this in the record, such facts may have prevented summary judgment from being rendered

against Wallace on this claim,” but the court noted specific evidence of these racist

remarks was lacking.213

In Hernandez v. Yellow Transp., Inc., the Fifth Circuit noted that the district court

did not err in finding that one of the key incidents, the plaintiff having been threatened by

with a knife by a coworker, was irrelevant because there was no evidence that the event

had anything to do with race.214 Other evidence was also rejected by the district court

because, even if it reflected hostility toward one of the plaintiffs, there was no evidence

that the actions were based on race.215 Indeed, a wide range of conduct may render a

workplace uncivil, but a plaintiff must show under Title VII that the conduct was based on

race.216

For example, in Keel v. Wal-Mart Stores, Inc., the district court, relying on

Hernandez, rejected as evidence the fact that a co-worker regularly swore at and called

the disabled plaintiff a “fat, lazy Motherf****r.”217 The court noted that there was no

evidence that the plaintiff “interpreted this comment to implicate his disability.”218

In Byrnes v. City of Hattiesburg, the Fifth Circuit affirmed summary judgment in

favor of an employer in a disability discrimination case.219 The disabled plaintiff claimed

he suffered a hostile work environment based on his race and his disability. The plaintiff

213 80 F.3d 1042, 1049 (5th Cir. 1996).

214 670 F.3d 644, 652 (5th Cir. 2012).

215 Id.

216 Id. (citing Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)).

217 No. 1:1-cv-248, 2012 WL 3263575, at *15 (E.D. Tex. July 17, 2012).

218 Id.

219 662 F. App’x 288 (5th Cir. 2016).

testified that a co-worker threatened to steal his car, wreck his car, threatened the

plaintiff’s father, blocked the pathway to his office and refused to leave, and on one

occasion, put his hands on the plaintiff’s chest and pushed him.220 The Fifth Circuit

affirmed summary judgment against the plaintiff, finding that he “failed to create a genuine

issue of material fact that he was harassed because of his race or disability.”221 This was

because the plaintiff admitted that the co-worker did not refer to his race or disability when

the harassing conduct occurred.222

In Clark v. City of Alexandria, the court rejected a race-based hostile work

environment claim, finding that many of the plaintiff’s allegations did “not bear any

relationship to race.”223 The plaintiff claimed that his supervisor “made intimidating and

angry faces” at him; in a group setting the supervisor looked at each person with an angry

look; screamed at the plaintiff “in a hostile and demeaning tone” in front of other

employees; and the supervisor failed to reprimand other employees who “verbally

attacked” the plaintiff.224 The court found that there was no evidence that connected

these accusations to the plaintiff’s race.225 The court also rejected evidence of alleged

harassment directed at someone other than the plaintiff, stating: “Although ‘a plaintiff for

some purposes ... [may] introduce evidence of discrimination of others’ to support their

220 Id. at 289.

221 Id. at 291.

222 Id.

223 No. 1:20-cv-01581, 2023 WL 5970196, at *9 (W.D. La. Sept. 13, 2023).

224 Id.

225 Id. (citing Brew v. Weyerhaeuser NR Co., 537 F. App'x 309, 313 n.9 (5th Cir. 2013) (“We do not consider

other incidents of alleged harassment not based on race ... because [plaintiff] has no evidence ‘that the

non-race-based harassment was part of a pattern of race-based harassment.’”); Rome-Bienemy v.

Children's Hosp., 2015 WL 8600689, at *8 (E.D. La. Dec. 14, 2015) (“Title VII does not provide a cause of

action for work environments that are simply ‘hostile.’”) (citing Hernandez v. Yellow Transp., Inc., 670 F.3d

644, 654 (5th Cir. 2012)); Russell v. Louisiana through Div. of Admin., 2006 WL 8432078, at *8 (M.D. La.

Oct. 3, 2006) (granting summary judgment where “none of the defendants made derogatory statements to

[plaintiff] regarding her race”)).

hostile work environment claim, offensive comments that do not target the plaintiff are

given limited weight.”226

In this case, Plaintiff has failed to present evidence that Barnes’ anger, hostility,

and uncivil behavior towards his co-workers were necessarily race-based. Indeed, this

Court has held that a co-worker who “raised his voice to [the plaintiff], was rude, hostile,

and nasty” in front of others could not sustain a hostile work environment claim because

this conduct was not connected to the plaintiff’s race.227 Crucially, the declarations

submitted by Plaintiff, Boatner, and Seldon all lack any specific incident when Barnes

referred to the declarant as the n-word. The Court does not condone Barnes’ purported

unprofessional and arguably crude workplace conduct; however, such conduct must be

connected specifically, not generally, to the victims’ race. It cannot be assumed that

Barnes’ hostility was motivated by race simply because those he harassed are of a

difference race, or because all other employees in his department were African American.

As the Fifth Circuit instructs, a mere difference in race, without more, does not support a

finding of race-based harassment.228

226 Id. (quoting Septimus v. Univ. of Houston, 399 F.3d 601, 612 (5th Cir. 2005) (dismissal appropriate in

part because the plaintiff “did not personally experience most (if not all) of the conduct complained of by

the other women.”); Collier v. Dallas Cnty. Hosp. Dist., 827 F. App'x 373, 378 (5th Cir. 2020) (summary

judgment proper in part because inappropriate comments were not directed at the plaintiff); White v. Gov't

Emps. Ins. Co., 457 F. App'x 374, 381 (5th Cir. 2012) (dismissal proper in part because “[n]one of [the

plaintiff's allegations] involved physically threatening or humiliating conduct ... [and] the [most offensive]

comment was not directed at [plaintiff]”); Edwards v. Louisiana Cmty. & Tech. Coll. Sys., 2012 WL 1391662,

at *2 (W.D. La. Apr. 20, 2012) (dismissal proper where most of the complained-of statements “were [not]

directed at Plaintiff.”); Williams v. KTVE/KARD TV Station, 2013 WL 1908298, at *4 (W.D. La. May 7, 2013)

(summary judgment proper where the alleged “remarks and/or incidents were not directed toward plaintiff.”);

but see Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 653 (5th Cir. 2012) (noting that “[w]e have held

in the context of sex discrimination that harassment of women other than the plaintiff [can be] relevant to a

hostile work environment claim.”)).

227 Goring v. Board of Sup’rs of Louisiana State University, 932 F.Supp.2d 642, 653 (M.D. La. 2010).

228 See Byrnes, 662 Fed. Appx. at 290-91.

d. Workplace Safety Equipment/Violations

Plaintiff contends Defendant committed several workplace safety violations,

ignored Plaintiff’s and other African American employees’ complaints about these safety

violations, and provided African American employees faulty equipment. However, in the

declarations submitted by Plaintiff and his co-workers, the attestations about workplace

safety violations were stricken by the Court because there is no summary judgment

evidence to support the conclusory statement that workplace safety violations and

policies only, and intentionally, affected African American employees rather than all

employees. There is evidence of purported safety violations in the warehouse, but there

is no evidence before the Court to connect these violations to race. Indeed, it appears

that any purported safety violations would affect all employees, regardless of race, who

utilized the warehouse. There is simply no evidence aside from Plaintiff’s subjective

opinions that these purported violations applied to or allegedly harmed only African

American employees rather than all employees regardless of race.

Notably, complaints about the “ordinary tribulations of the workplace”—even if

severe—are not actionable unless they are based on a protected characteristic, such as

race.229 For example, in Keel, where plaintiff argued that the employer’s failure to provide

him working equipment constituted harassment, the court held that the plaintiff “fail[ed] to

show how this non-disability and race-based harassment was part of a pattern of disability

or race-based harassment.”230 In Young v. School Dist. of Philadelphia, the Fourth Circuit

229 Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

230 Keel, 2012 WL 3263575 at *15 (citing Hernandez, 670 F.3d at 654 (discussing E.E.O. C. v. WC & M

Enters., Inc., 496 F.3d 393 (5th Cir.2007)); accord Wiltz v. Christus Hosp. St. Mary, 2011 WL 1576932, at

*8 (“Harassment is based on color when the complained-of conduct has a color-related character or

purpose.”) (emphasis in original)).

similarly held that there was no evidence to support a plaintiff’s claim that he was assigned

faulty equipment because of his race.231

Accordingly, the Court finds that purported workplace safety violations and faulty

equipment cannot form the basis of race-based harassment where there is no evidence

connecting this conduct to race or demonstrating how such conduct intentionally affected

only African American employees. Plaintiff has presented evidence, which Defendant

disputes, that Scichowski showed favoritism to Barnes regarding truck adjustments

and/or equipment; however, Plaintiff failed to connect this to Barnes’ race. Moreover, that

Scichowski may have shown favoritism to Barnes is also insufficient to carry Plaintiff’s

burden. This Court has noted that “[f]avoritism alone is not evidence of Title VII

discrimination.232 Plaintiff subjectively believes such policies and decisions were based

on race, but the Court cannot find from the current record that they are objectively based

on race.

2. Severe or Pervasive

Plaintiff must also demonstrate that the race-based harassment suffered was so

severe or pervasive as to permeate the workplace and create an abusive and hostile

working environment. The Court looks to the totality of the circumstances, considering

“(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically

threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably

231 Young v. School Dist. of Philadelphia, 427 F. App’x 150, 154 (3rd Cir. 2011).

232 Jackson v. Louisiana Dept of Public Safety and Corr., No. 15-00490, 2017 WL 2786493, at *7 n. 87

(M.D. La. June 27, 2017)(citing Pickens v. CLC of Vaiden, LLC, Civil Action No. 3:06CV147, 2008 WL

480008, at *3 (N.D. Miss. Feb. 19, 2008)(“[T]he mere fact that an employee who was allegedly shown

favoritism was white would not support a race discrimination claim, even if such favoritism had been

established.”); Williams v. C.J. Gayfers and Co., 11 F.Supp.2d 854, 858 (S.D. Miss. 1998)(“the fact that an

employee of one race is given more favorable treatment than an employee of a different race is no basis

for a lawsuit under Title VII unless a plaintiff proceeds further and establishes that racial discrimination was

a motivating factor behind the employer's [decision.]”).

interferes with an employee's work performance.”233

a. Frequency

The Court finds there is insufficient evidence of the frequency of the purported

racial harassment. As set forth above, Plaintiff readily admits that, because Barnes drove

the night shift and Plaintiff drove the day shift, his interaction with Barnes was between

one and two hours per week, which amounts to 25% at most and 12.5% at least of an

entire work week.234 This limited interaction undermines the suggestion that Plaintiff’s

work environment was constantly permeated with racial abuse. Plaintiff cannot

accumulate the alleged experiences of other drivers to make a showing of frequency.

After removing workplace safety complaints, which will be discussed below, and

Barnes’ indiscriminate use of the word “boy,” there are few specific incidents before the

Court of Barnes’ making racially offensive comments or using the n-word. Although

Plaintiff and other drivers attested that Barnes used “boy” and the n-word “a lot,” there is

no way to know from this characterization how often the n-word was purportedly used.

The specific instances offered are not of such a frequency as to be pervasive.

b. Severity

In considering the severity of Title VII harassment, “[t]he Fifth Circuit has required

racial insults to be extremely severe to survive summary judgment.”235 This requires

“direct racial insults.”236 The Court has discussed at length the lack of evidence as to

233 Rodrigue v. PTS Management Group, LLC, 550 F.Supp.3d 376, 397 (W.D. La. 2021)(quoting West v.

City of Houston, Texas, 960 F.3d 736, 742 (5th Cir. 2020); Harvill, 433 F.3d at 435).

234 Rec. Doc. 12-4, Plaintiff’s Depo, p. 32.

235 Daywalker v. University of Texas Medical Branch at Galveston, 641 F.Supp.3d 362, 376 (S.D. Tex.

2022)(citing e.g., E.E.O.C. v. WC&M Enterprises, Inc., 496 F.3d 393, 400 (5th Cir. 2007)).

236 Id.

direct racial insults to the Plaintiff. Nevertheless, the Court will consider applicable

jurisprudence on this issue.

The Fifth Circuit has affirmed summary judgment of Title VII race-based hostile

work environment claims based on more “extreme” conduct than that presented here as

insufficiently severe or pervasive. For example, in Cavalier v. Clearlake Rehabilitation

Hosp., Inc., the Circuit agreed the African American plaintiff's allegation that he had been

repeatedly called “boy” by a supervisor, who also threatened to “beat the tar off of him[,]”

did not rise to the level of severity or pervasiveness to be actionable under Title VII.237 It

reached the same conclusion in Johnson v. TCB Const. Co., in which an African American

plaintiff's supervisor had directly called him a “damn n*****” on one occasion and regularly

used that derogatory epithet in general workplace conversation.238

In Rome-Bienemy v. Children’s Hospital, the plaintiffs were terminated African

Americans medical secretaries at a pediatric hospital who claimed race-based

discrimination, harassment, and retaliation.239 As evidence of a hostile work environment,

one plaintiff presented evidence that, on one occasion, President Obama was referred to

as a monkey and was generally criticized during an office meeting; she testified in a

deposition that she had been called the n-word by a co-worker and that she heard other

racial slurs being used in the office, but she could not specify or recall what these slurs

were; a co-worker made derogatory comments about the way African Americans

pronounced words and stated she wished the government would drug test African

237 306 F. Appx. 104, 105-06 (5th Cir. 2009)(per curiam).

238 Johnson v. TCB Const. Co., 334 F. App'x. 666, 668, 670 (5th Cir. 2009) (per curium).

239 No., 14-1020, 2015 WL 8600689, at *1 (E.D. La. Dec. 14, 2015).

Americans on food stamps; the plaintiff claims other “racial” comments were made where

other co-workers were called a “redneck from the delta” and “uptown girl.”240

The court noted that the plaintiff could not recall the day she was called the n-word,

and while she claimed she was called another racial slur, she could not recall what it was.

The court found that the plaintiff failed to satisfy her prima facie burden for the hostile

work environment claim because:

The specific incidents of racially offensive comments are insufficient as a

matter of law to support a Title VII hostile work environment claim. The

comments directed at [plaintiff] were isolated incidents that were not

sufficiently pervasive over the course of [her] employment to alter the

conditions of her employment. Most of the comments that [plaintiff]

complains about, even if they were in fact made, while inappropriate and

offensive, were not directed at her.241

As cited by the Eastern District of Louisiana in Olmeda v. Cameron Intern. Corp.,

“infrequent comments pale in comparison to far more severe race-based comments that

have been found to support hostile work environment claims.”242

Similarly, in Johnson v. TCB Constr. Co., the Fifth Circuit found there was

insufficient evidence to establish a racially hostile work environment where a supervisor's

comment that the plaintiff was just “like a damn n****r” was isolated; there was no

240 Id. at *8.

241 Id.

242 139 F.Supp.3d 816, 831-32 (E.D. La. 2015)(citing e.g., Walker v. Thompson, 214 F.3d 615, 625 (5th

Cir.2000) (holding that plaintiff survives summary judgment where evidence demonstrated years of

inflammatory racial epithets, including “nigger” and “little African-American monkey”); Daniels v. Essex

Group, Inc., 937 F.2d 1264, 1266 (7th Cir.1991) (finding summary judgment for defendant inappropriate

where plaintiff was subjected to “nigger jokes” for a ten-year period and whose workstation was adorned

with “a human-sized dummy with a African-American head”); Spriggs v. Diamond Auto Glass, 242 F.3d

179, 182 (4th Cir.2001) (reversing summary judgment where plaintiff suffered “incessant racial slurs”

including “nigger” and “dumb monkey”); cf. Pickens v. Shell Tech. Ventures, Inc., 118 Fed.Appx. 842, 850

(5th Cir.2004) (unpublished)(holding that a company Christmas party where a skit with characters in

African-Americanface was performed and racially insensitive comments were made did not create a hostile

work environment); Mosley v. Marion County, Miss., 111 Fed.Appx. 726, 728 (5th Cir.2004)

(unpublished)(three incidents involving the use of racial slurs were insufficient to establish a hostile work

environment claim).

evidence of the objective effect of that comment on the plaintiffs work performance; and

although there was evidence that the supervisor frequently used the term “n****r,” those

other comments were not uttered in the plaintiffs presence, and there was no evidence

that they affected the plaintiff's job.243

Contrast these facts to those in Jones v. Delta Towing LLC, wherein the court

denied summary judgment on the plaintiff’s racial hostile work environment claim because

he produced evidence that, over a six-month time frame, whenever the plaintiff was in the

room, his supervisor and co-workers would use the n-word, and they referred to African

American people as “porch monkeys”; the plaintiff’s “work productivity was compared to

that of a slave”; he was told a story about the drowning death of a African American man

while out at sea; and jokes were made about the size of African American men's genitals

in his presence.244

Considering the foregoing jurisprudence and the specific instances before the

Court that could qualify as racially insensitive or offensive conduct by Barnes, the Court

finds that the conduct in this case does not rise to the level of severity that the Fifth Circuit

has held survives summary judgment. The incidents complained of were not so pervasive

as to alter the conditions of Plaintiff’s employment.

c. Physically Threatening or Humiliating/Mere Offensive Utterance

There is evidence before the Court that Plaintiff felt physically threatened and/or

humiliated by Barnes’ conduct. Indeed, Plaintiff has presented testimony that he and/or

other African American co-workers felt intimidated by Barnes, that he regularly screamed

and cursed at them, provoked fights, and was generally hostile and angry.

243 334 Fed. Appx. 666, 671 (5th Cir. 2009).

244 512 F.Supp.2d 479, 487-88 (E.D. La. 2007).

However, considering the two specific incidents Plaintiff describes with Barnes, the

Court finds that the purported racial comments were mere offensive utterances. Barnes’

comment to Plaintiff about being a young black man who could “just make more babies,”

was insensitive and offensive, but as the Court has held above, calling Plaintiff “boy”

during the urine incident, while offensive to Plaintiff, was not necessarily based on race.

Even construing the exchanges between Plaintiff and Barnes during the urine incident as

racially charged, they would still constitute isolated offensive utterances.

d. Interference with Work Performance

The Fifth Circuit in Barkley also affirmed summary judgment on the plaintiff’s

hostile work environment claim based on the plaintiff’s admission that the alleged

harassment did not affect his work performance, considering the plaintiff “testified that the

harassment had no impact on his work performance.”245 The plaintiff testified: “With me,

you hear it, you just go about your business. I'm not one of those people who get upset

when they hear whatever, whatever.”246 The court noted that, “[a]ctionable harassment

‘will detract from employees' job performance, discourage employees from remaining on

the job, or keep them from advancing in their careers.’”247 The plaintiff “never stated that

his coworker's racist language detracted from his job performance, discouraged him from

remaining on the job, or hindered his career advancement.”248

The Simmons court also found that the plaintiff failed to point to evidence indicating

how the alleged harassment interfered with his job performance.249 Rather, the court

245 Barkley, 433 F. App’x at 258.

246 Id. (internal quotation marks omitted).

247 Id. (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)).

248 Id. at 258-59.

249 Simmons, 557 F.Supp.3d at 779 (citing Collier, 827 F. App'x at 377 (citation omitted); see, e.g., Hiner v.

McHugh, 546 F. App'x 401, 408 (5th Cir. 2013) (per curiam); Johnson v. TCB Constr. Co., 334 F. App'x

666, 671 (5th Cir. 2009) (per curiam)).

noted that “the evidence reflects that Plaintiff, leading up to his termination, performed

‘good work’ and was amenable to learning new techniques.”250

In the present case, Plaintiff failed to present evidence that any harassment

interfered with his job performance or otherwise altered the terms and conditions of his

employment. Indeed, Plaintiff attested he was a great employee who never received any

complaints about his job performance.251 Plaintiff also testified that when Barnes would

say offensive things to him, he “tried to just I guess you could say mute out, blank out,

and try to keep working because I needed my job.”252 Thus, the Court finds that Plaintiff

has failed to present evidence that Barnes’ conduct interfered with his work performance.

Accordingly, considering the totality of the circumstances and the foregoing

factors, the Court finds that Plaintiff has failed to make a prima facie racial hostile work

environment claim.

D. Retaliation

Plaintiff contends his termination was in retaliation for reporting workplace safety

violations and racial harassment by Barnes. To establish a prima facie case of retaliation

under the traditional McDonnell Douglas framework, “the plaintiff must establish that: (1)

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

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

activity and the adverse employment action.”253 An employee engages in activity

protected by Title VII when the employee has “opposed any practice made an unlawful

250 Simmons, 557 F.Supp.3d at 779.

251 Rec. Doc. 18-1, p. 16, ¶ 4.

252 Rec. Doc. 12-4, Plaintiff’s Depo, p. 50.

253 McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007).

employment practice” by Title VII or “made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing” under Title VII.254

If the plaintiff establishes a prima facie case, then the employer has the burden of

production to provide “a legitimate, non-discriminatory reason” for the adverse

employment action.255 If the employer meets this burden, then the plaintiff has the burden

to prove that the proffered reason is pretextual.256 “A plaintiff may establish pretext by

showing that a discriminatory motive more likely motivated her employer's decision, such

as through evidence of disparate treatment, or that her employer's explanation is

unworthy of credence.”257 Ultimately, in order to survive a motion for summary judgment,

a plaintiff must show “a ‘conflict in substantial evidence’” on the question of whether the

employer would not have taken the adverse employment action but for the protected

activity.258 “Evidence is substantial if it is of such quality and weight that reasonable and

fair-minded [triers of fact] in the exercise of impartial judgment might reach different

conclusions.”259

As the Fifth Circuit explained in Owens v. Circassia Pharms., Inc.:

An employee can establish pretext in the context of retaliation by showing

that a discriminatory motive more likely motivated her employer's decision.

In order to survive a motion for summary judgment, the plaintiff must show

a conflict in substantial evidence on this issue. At this juncture, we consider

numerous factors, including the strength of the plaintiff's prima facie case,

the probative value of the proof that the employer's explanation is false, and

any other evidence that supports the employer's case and that properly may

be considered.

…

254 42 U.S.C. § 2000e–3(a); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).

255 Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004).

256 Id.

257 Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363 (5th Cir. 2013).

258 Musser v. Paul Quinn Coll., 944 F.3d 557, 561 (5th Cir. 2019) (quoting Hernandez v. Yellow Transp.,

Inc., 670 F.3d 644, 658 (5th Cir. 2012)).

259 Owens v. Circassia Pharms., Inc., 33 F.4th 814, 826 (5th Cir. 2022)(citing Laxton v. Gap, Inc., 333

F.3d 572, 579 (5th Cir. 2003)).

This inquiry requires a greater showing than mere causal connection.

It requires that the plaintiff show that protected conduct was the

reason for the adverse action. In other words, even if a plaintiff's protected

conduct is a substantial element in a defendant's decision to terminate an

employee, no liability for unlawful retaliation arises if the employee

would have been terminated even in the absence of the protected

conduct.260

Preliminarily, the Court notes that complaining about an employer's safety

violations is not protected activity under Title VII.261 However, Plaintiff has testified to his

subjective belief that these safety violations affected African American employees in a

discriminatory manner. In nearly every instance, Plaintiff couples his complaints of race

discrimination and workplace safety, leaving it difficult to ascertain how often the

complaints were about safety or about race. Nevertheless, Plaintiff easily satisfies a prima

facie case of retaliation. Plaintiff testified that, on the morning of October 8, he

complained to Scichowski about Barnes’ purported racism during the incident. This

qualifies as protected activity under Title VII. Plaintiff suffered an adverse employment

action when he was terminated. And Plaintiff’s termination came within days of his

making this complaint to Scichowski. Under McDonnell Douglas, the burden shifts to

Defendant to present competent summary judgment evidence of a non-discriminatory

reason for Plaintiff’s termination.

260 Id. at 835 (emphasis added).

261 See 42 U.S.C. § 2000e-2(a) (prohibiting employers from discriminating on the basis of race, color,

religion, sex, or national origin); accord Washington, 299 Fed.Appx. at 401 (“Plaintiff's alleged reporting of

M. Hanna to authorities for violating OSHA does not qualify as protected activity under Title VII.”); Mayers

v. Shaw Indus., No. 3:09-2635-CMC-JRM, 2010 WL 5158418, at *4 (D.S.C. Nov. 23, 2010) (dismissing

plaintiff's retaliation claim premised on reporting alleged safety violations on the ground that he did not

engage in an activity protected by Title VII); Acosta v. City of Phoenix, No. CV-05-1810, 2006 WL 3499963,

at *11 (D. Ariz. Dec. 4, 2006) (holding that plaintiff failed to establish a prima facie case of retaliation based

on his complaints of employer's alleged violation of federal environmental laws and state safety

regulations).

1. Legitimate, Non-Discriminatory Reason for Termination

Defendant contends Plaintiff was terminated because he refused to run his routes

even after Scichowski addressed his complaint and cleaned the truck. Defendant points

out the inconsistency between Plaintiff’s declaration wherein he attests there was urine

in the truck with Plaintiff’s testimony that he never saw Barnes urinate inside the truck;

rather, it was Plaintiff’s assumption. Scichowski contends he addressed Plaintiff’s

complaints, cleaned the exterior of the truck, inspected the inside of the truck, retrieved

more cleaning supplies, cleaned the inside of the truck, and placed a garbage bag over

the driver’s seat.262 Defendant claims Plaintiff never went back to the truck to inspect the

cleaning; rather, he just continued to state he was uncomfortable driving it, so Scichowski

sent him home since there was no other truck Plaintiff could drive.263

Later that day, Scichowski investigated the altercation. He called Barnes to get

his side of the story. Barnes denied Plaintiff’s accusations and reported that Plaintiff was

the aggressor who threatened him. There were no other witnesses to the incident, so

Scichowski could not determine who was the aggressor, and Scichowski’s inspection of

the truck revealed that Plaintiff’s claim that Barnes urinated inside the truck was not true.

Scichowski also found Plaintiff’s refusal to run his routes unreasonable since he

personally cleaned the truck, inside and out. Defendant maintains that the only reason

Plaintiff was terminated was because he refused to run his route on October 8; Plaintiff’s

report that Barnes was racist towards him played utterly no part in the decision.264

While Plaintiff contests the facts offered by Scichowski,Defendant points out that

262 Rec. Doc. 12-1, Scichowski Declaration, ¶ 10.

263 Id. at ¶ 11.

264 Id. at ¶¶ 13-15.

some of Plaintiff’s contested “facts” are based on mere assumptions. Although Plaintiff

states Scichowski never cleaned the inside of the truck, Scichowski points out that Plaintiff

never went back to the truck to inspect its cleanliness. Further, Scichowski argues that,

as the investigator of the incident, it matters not if his conclusions were wrong, it only

matters if his conclusions were based on race.

2. Pretext

Plaintiff claims that the following facts are evidence of pretext in his termination:

the inadequate investigation of Plaintiff’s complaint about the October 8 incident;

Scichowski’s “false” statements and conclusions; Defendant’s failure to follow its

Employee Handbook by taking complaints of discrimination seriously and failing to

discipline or terminate Barnes for his conduct; the delay in formally terminating Plaintiff

on the following Monday rather than the Friday the incident occurred; and the alleged

falsification or fabrication of termination documentation.

Defendant responds to Plaintiff’s evidence of pretext, stating first that there is

nothing pretextual about sending Plaintiff home on Friday and terminating him on Monday

because Barnes was already gone when Plaintiff refused his route, and Scichowski

needed time to investigate the incident before making a decision. Further, Plaintiff’s

complaint that he was paid for a full workday on the day he was sent home is not evidence

of pretext as he was not terminated at that time.

Regarding Defendant’s adherence to its policies, Defendant maintains that it was

compliant because the policy mandates that employees will not face retaliation if they

make complaints, and the evidence “remains undisputed” that Scichowski terminated

Plaintiff because he refused to run his route, not because he complained about race

discrimination or anything else. Defendant notes that the Employee Handbook provides

that an employee may be subject to immediate termination when the employee has

“refus[ed] to perform assigned tasks.”265

Defendant also argues that Plaintiff’s disagreement with the adequacy and the

results of Scichowski’s investigation ignores well-established law that a plaintiff cannot

create a fact issue on pretext by arguing the employer conducted an inadequate or

erroneous investigation.266 Defendant distinguishes the cases cited by Plaintiff,

particularly Plaintiff’s reliance on the Fifth Circuit’s holding in Ion v. Chevron that the

employer’s “failure to conduct even the most cursory investigation” constituted evidence

of pretext.267 Defendant notes that the Ion decision was based on the failure to conduct

any investigation; here, the evidence is uncontroverted that Scichowski performed an

investigation. The Ion court also noted that a plaintiff’s denial of the misconduct for which

he was terminated did not create a fact issue on pretext.268

Turning to Plaintiff’s specific attacks on the investigation itself, Defendant argues

that Scichowski’s notes “do not purport to be in chronological order,” and Scichowski’s

notes of Barnes’ side of the story are not Scichowski’s “conclusions, as plaintiff

suggests.”269 Plaintiff agues that Barnes’ side of the story should have been completely

disregarded based on the truck lights incident between Barnes and Seldon; however,

Defendant counters that the witnesses to this incident claim that Barnes got angry at

Seldon for not turning off his lights while Barnes was trying to back out, but neither witness

265 Rec. Doc. 18-10, p. 20.

266 Rec. Doc. 21, pp. 7-8 (citations omitted).

267 Ion v. Chevron, 731 F.3d 379, 395 (5th Cir. 2013).

268 Id. at 393-94 (citing Jackson v. Cal-Western Packaging Corp., 602 F.3d 374 (5th Cir. 2010)).

269 Rec. Doc. 21, pp. 8-9.

claims Barnes made any racial comments during this incident, and neither contend this

incident was reported to Scichowski.

Defendant disputes Plaintiff’s claim that it manufactured documentation to support

his termination and that such documentation is evidence of pretext. Scichowski’s

handwritten note on February 25, 2021, wherein Scichowski documented that Plaintiff

complained about being asked to take a route from another driver, was not used as a

basis for any formal discipline. Also, Plaintiff testified that he never saw this note prior to

his deposition;270 thus, he has no personal knowledge upon which to base his speculation

that the note was “fabricated.” Finally, Plaintiff essentially admitted to the facts in the note

when he testified that there were times he had to take a load from another driver, and he

believed this was unfair.271

The Court finds that Plaintiff has failed to carry his burden to demonstrate

substantial evidence of pretext. Plaintiff’s reliance on the Ion case is misplaced because

here, Scichowski performed an investigation into the October 8 incident. Plaintiff takes

issue with Scichowski’s investigation notes which show Barnes’ side of the story. Without

question, Plaintiff disputes Barnes’ version of events. But there is nothing pretextual

about a manager making notes of each side’s account of events when investigating a

dispute between employees, particularly where the manager did not witness the event.

Further, it matters not whether Plaintiff would have conducted the investigation differently

or reached different conclusions. The Fifth Circuit has made clear that “[e]mployment

laws do not transform federal courts into human resources managers, so the inquiry is

not whether [the employer] made a wise or even correct decision to terminate

270 Rec. Doc. 18-5, Plaintiff Depo, p. 98.

271 Id. at pp. 119-120.

[Plaintiff].”272 “Instead, ‘[t]he ultimate determination ... is whether, viewing all of the

evidence in a light most favorable to the plaintiff, a reasonable fact finder could infer

discrimination.’”273 “Employers are ‘entitled to be unreasonable’ in [their actions against]

their employees ‘so long as [they] do not act with discriminatory animus.”274 In other

words, “[e]ven if an employer's stated non-discriminatory justification lacks support, it

does not violate Title VII if it acted on a reasonably held belief.”275 The Court finds that

Plaintiff has failed to submit competent evidence to rebut Defendant’s evidence of

Scichowski’s good faith belief that Plaintiff unreasonably refused to run his route.

Plaintiff has offered no competent summary judgment evidence that documents

were “fabricated” or “manufactured” after his termination. This is pure speculation by

Plaintiff. The fact that Plaintiff may not have seen a document before does not mean it

was fabricated or render it pretextual. Further, the summary judgment evidence in this

matter confirms that the handwritten note regarding Plaintiff’s complaint of taking over a

route for Seldon was factual. Moreover, Defendant does not claim that Plaintiff was

terminated for a history of refusing to run routes; rather, he was terminated for refusing to

run his route on October 8, and Defendant’s policy allowed for immediate termination

under this condition.

Plaintiff makes much of the fact that he was paid for full workdays on the Friday he

was sent home and the following Monday when he came in and was terminated. This

fact is not the smoking gun Plaintiff suggests, and the Court finds no merit in the argument

that this demonstrates pretext.

272 Owens, 33 F.4th at 826 (citing Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005)).

273 Id. (quoting Crawford v. Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000)).

274 Id. (quoting Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002)).

275 Daywalker v. UTMB at Galveston, No . 22-40813, 2024 WL 94297, at *8 (5th Cir. Jan. 19, 2024).

Although Plaintiff testified that Defendant failed to follow its Employee Handbook’s

retaliation, discrimination, and termination policies, Defendant produced uncontroverted

evidence that its policy allows for immediate termination for an employee’s refusal to

perform job duties. To the extent Plaintiff complains that Barnes engaged in misconduct

but was not disciplined, this argument still fails because a retaliation pretext determination

requires a similarly situated comparator who engaged in the same conduct but did not

receive the same discipline.276 The Court has already held that Plaintiff has presented

no similarly situated comparator outside his protected class.

In Turner v. Baylor Richardson Medical Center, the plaintiff attempted to establish

pretext by arguing that the employer failed to follow its employee handbook when

implementing disciplinary procedures against her. The court rejected this argument,

stating: “‘A defendant's failure to follow its own policy is not probative of discriminatory

animus in absence of proof that the plaintiff was treated differently than other non-minority

employees because Title VII does not protect employees from the arbitrary employment

practices of their employer, only their discriminatory impact.’”277 The court further held

that the plaintiff “has introduced no evidence suggesting that [the employer] adhered to

its disciplinary policies differently in cases involving non-minority employees. Therefore,

[the employer’s] alleged failure to follow its policy does not serve to establish pretext.”278

Plaintiff’s claims of pretext are further undermined by fact that Plaintiff states he

276 See Lambert v. City of McComb, Miss., No. 5:19cv141-HSO-MTP, 2021 WL 6803718, at *8 (S.D. Miss.

Mar. 12, 2021)(citations omitted); see also Williams v. Texas Facilities Comm., No. A-17-CV-689-DAE,

2019 WL 2774333, at *4 (W.D. Tex. July 1, 2019)(“One way to establish pretext is to show that an employer

failed to follow its own policies and procedures[ ] [or] did not discipline other employees who committed

similar misconduct ....” (citations omitted)).

277 476 F.3d 337, 346 (5th Cir. 2007)(quoting Upshaw v. Dallas Heart Group, 961 F.Supp. 997, 1002

(N.D.Tex.1997)).

278 Id.

complained about race discrimination on multiple occasions, yet he was never terminated

or disciplined in connection with those complaints. That prior complaints of race

discrimination were not met with discipline or termination bolsters Defendant’s evidence

that the but-for cause of Plaintiff’s termination on October 8 was his refusal to run his

scheduled route.

Plaintiff has failed to rebut Defendant’s legitimate non-discriminatory reason for

Plaintiff’s termination with evidence that is sufficient in “‘nature, extent, and quality’ to

make the inferential leap to discrimination a rational one.”279 There is no evidence from

which a reasonable juror could conclude that Plaintiff’s complaining about Barnes’

purportedly racist conduct was the reason he was terminated on October 8.

E. Louisiana Employment Discrimination Laws

Plaintiff has asserted claims under the Louisiana Employment Discrimination

Laws280 and the Louisiana Human Rights Act.281 According to La. R.S. 23:302, in

Louisiana:

“‘Employer’ means a person, association, legal or commercial entity, the

state, or any state agency, board, commission, or political subdivision of the

state receiving services from an employee and, in return, giving

compensation of any kind to an employee. The provisions of this Chapter [

Chapter 3-a. Prohibited Discrimination in Employment] shall apply only to

an employer who employs twenty or more employees within this state for

each working day in each of twenty or more calendar weeks in the current

or preceding calendar year.”

Clearly, an employer must have twenty or more employees to be liable for

Louisiana state discrimination in employment claims, and La. R.S. 51:2256 specifically

adopts by reference this definition of employer.

279 Owens, 33 F.4th at 826 n.7 (quoting Crawford, 234 F.3d at 903).

280 La. R.S. 23:301, et seq.

281 La. R.S. 51:2256.

As the Court held above, Plaintiff has not offered competent summary judgment

evidence to create a genuine issue of fact regarding the number of employees Defendant

employs in the State of Louisiana. Defendant presented competent summary judgment

evidence regarding the number of employees it employs in Louisiana by a manager in a

position to have such knowledge about the company. Accordingly, Defendant is entitled

to summary judgment on Plaintiff’s Louisiana claims.

IV. CONCLUSION

For the reasons set forth above, the Motion for Summary Judgment282 by

Defendant, Brandon Company of Tennessee, LLC (“Defendant”) is GRANTED. Plaintiff,

Tevin Scott’s claims are dismissed WITH PREJUDICE.

Judgment shall be entered accordingly.

Baton Rouge, Louisiana, this _1_8_th day of ______M__ar_c_h_______, 2025.

S

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

282 Rec. Doc. 12.