Petition for Writ of Certiorari — Gilbert Edwin, Petitioner v. Clean Harbors Environmental Services Inc.

Edwin v. Clean Harbors Environmental Services Incorporated, Not Reported in Fed....

Commission (“EEOC’) for race discrimination in December.

2023 WL 4046275

Only the Westlaw citation is currently

available.

United States Court of Appeals, Fifth Circuit.

Gilbert EDWIN, Plaintiff—Appellant,

v.

CLEAN HARBORS ENVIRONMENTAL

SERVICES INCORPORATED,

Defendant—Appellee.

After Edwin was cleared to return to work in January of

2018, Clean Harbors informed him that he needed to schedule

a drug test, per company policy. Edwin then disclosed to

Clean Harbors that he smoked marijuana and tested positive

on January 16,2018. Seven days later, Edwin was terminated

for violating Clean Harbors’ Alcohol and Drug Policy. Edwin

asked Clean Harbors to reconsider his termination, claiming

that he used marijuana for medical reasons. However, after

further review, Clean Harbors maintained Edwin’s

termination.

No. 22-30263

FILED June 16, 2023

Appeal from the United States District Court for the Western

District ofLouisiana, USDC No. 2:18-CV-385

Edwin then filed five claims against Clean Harbors: (1) a

hostile work environment claim, (2) a disparate treatment

claim, and (3) a retaliation claim, under Title VII, all based

on racial discrimination, (4) a state law retaliation claim,

under Louisiana's Whistleblower statute, La. R.S. § 23:967,

and (5) a state law retaliation claim, under La. R.S. §

23:1361, alleging that Clean Harbors retaliated against him

for taking workers’ compensation.

Attorneys and Law Firms

Gilbert Edwin, Lake Charles, LA, Pro Se.

Andrew John Halverson, Greg Guidry, Oglctree Deakins,

Lafayette, LA, for Defendant—Appellee.

Before Graves, Higginson, and Douglas, Circuit Judges.

The district court granted Clean Harbors’ motion for

summary judgment on all claims except for the Title VII

retaliation claim. However, on reconsideration, the district

court dismissed the remaining Title VII retaliation claim with

prejudice. Edwin timely appealed.

Opinion

II. MOTION FOR RECONSIDERATION

Per Curiam:'

* 1 Gilbert Edwin asserts that he is an African American male

who worked for Clean Harbors Environmental Services, Inc.

(“Clean Harbors”). He sued his former employer, alleging

racial discrimination, disparate treatment, a hostile work

environment, and retaliation. Edwin appeals the district

court's grant of summary judgment against him on all claims.

For the reasons cited herein, we AFFIRM.

I. BACKGROUND/PROCEDURAL HISTORY

Gilbert Edwin started working for Clean Harbors, an

environmental and industrial service provider, in September

of 2015. After a workplace accident in August of 2017,

Edwin went on leave for four months. During that time,

Edwin filed a workers’ compensation claim in October, and

a charge with the Equal Employment Opportunity

Edwin contends that the district court should not have granted

Clean Harbors’ motion for reconsideration of its denial of

summary judgment on the Title VII retaliation claim,

contending that a motion for reconsideration is not a proper

vehicle for asserting new arguments. We review a district

court's grant of a motion for reconsideration for abuse of

discretion. Williams v. Wells Fargo Bank, N.A., 884 F.3d

239. 243 (5th'cir. 2018).

Even if we were to accept that Clean Harbors did, in fact,

assert, a new argument, the district court was allowed to

review it under Federal Rule of Civil Procedure 54(b)

because “Rule 54(b)’s approach to the interlocutory

presentation of new arguments as the case evolves can be

more flexible, reflecting the "inherent power of the rendering

district court to afford such relief from interlocutory

judgments as justice requires.’

Austin v, Kroger Texas,

L.P., 864 F.3d 326. 337 (5th Cir. 2017) (citations omitted).

Moreover, "Rule 54(b) allows parties to seek reconsideration

of interlocutory orders and authorizes the district court to

Appeftilix A

Edwin v. Clean Harbors Environmental Services Incorporated, Not Reported in Fed....

'revise[ ] at any time’ ‘any order or other decision ... [that]

does not end the action.’ ” Id. at 336 (citing Fed. R. Civ. P.

54(b)).

*2 Thus, the district court did not abuse its discretion in

granting Clean Harbors’ Motion for Reconsideration.

III. STANDARD OF REVIEW

We review a grant of summary judgment de novo. Hudson v,

Lincare, Inc„ 58 F.4th 222, 228 (5th Cir. 2023) (citation

omitted). We apply the same standard as the district court and

may affirm “on any ground supported by the record.” fd.

(citations omitted).

Summary judgment is proper if “there is no genuine dispute

as to any material fact and the movant is entitled to judgment

as a matter of law.” Id. (citing Fed. R. Civ. P, 56(a)).

Summary judgment will be denied only “if the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.” Id. (citation omitted). “All ‘reasonable

inferences,’ however, ‘should be drawn in favor of the

nonmoving party.’ ” Id. at 228-29 (citation omitted).

IV. DISCUSSION

Edwin argues that the district court erroneously entered

summary judgment in favor of Clean Harbors on his hostile

work environment, disparate treatment, and three retaliation

claims. We discuss each in turn.

A. Hostile Work Environment Claim

To establish a claim of hostile work environment under Title

VII, a plaintiff must prove he: “(1) belongs to a protected

group; (2) was subjected to unwelcome harassment: (3) the

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

harassment complained of affected a term, condition, or

privilege of employment; [and] (5) the employer knew or

should have known of the harassment in question and failed

to take prompt remedial action.” Hernandez v. Yellow

Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (citation

omitted).

In Louisiana, “[a]n individual claiming discrimination in

violation of Title VII must file a charge of discrimination

with the EEOC within 300 days ‘after the alleged unlawful

employment practice occurred.’ ” E.E.O.C. v. WC&M

Enters., Inc., 496 F.3d 393. 398 (5th Cir. 2007) (quoting 42

U.S.C. s? 20Q0e-5(e)( 1)); see also Nat’l R.R. Passenger Corp.

v. Morgan. 536 U.S. 10K 109 (2002)(“In a State that has an

entity with the authority to grant or seek relief with respect to

the alleged unlawful practice, an employee who initially files

a grievance with that agency must file the charge with the

EEOC within 300 days of the employment practice; in all

other States, the charge must be filed within 180 days.”).

“Because a hostile work environment generally consists of

multiple acts over a period of time, the requisite EEOC

charge must be filed within 300 days of any action that

contributed to the hostile work environment.” WC&M

Enters.. Inc., 496 F.3d at 398 (citations omitted).

Edwin filed his EEOC claim on December 13, 2017. He

raised six acts of alleged racial harassment before the district

court. As the district court correctly found, the first five acts

were untimely challenged because they occurred between

September 2015 and November 2016.

The only timely act raised by Edwin in the district court was

an August 2017 low performance review by his manager,

Marcel Bienvenu. If this event contributed to a hostile work

environment, then our court may consider all of the prior acts

of alleged harassment. WC&M Enters., Inc., 496 F.3d at 398.

Edwin failed to adequately brief this argument on appeal,

however, so it is forfeited.2 See Rollins v. Home Depot USA,

Inc., 8 F,4th 393, 397 (5th Cir. 2021).

*3 Even if this issue was adequately briefed on appeal, it

would nevertheless fail because Edwin fails to show how the

low performance review constituted harassment based on race

that contributed to a hostile work environment. The act is not

“sufficiently severe or pervasive to alter the conditions of

[Edwin’s] employment and create an abusive working

environment,” as required to support a hostile work

environment claim. WC&M Enters., Inc., 496 F.3d at 399

(cleaned up). “For harassment to be sufficiently severe or

pervasive to alter the conditions of the victim’s employment,

the conduct complained of must be both objectively and

subjectively offensive.” Id.

Here, Edwin did not discuss the performance review being

racially motivated in his EEOC report, or in his deposition. In

his deposition, Edwin was repeatedly asked why he thought

Bienvenu gave him poor reviews, and he never mentioned

race

he answered only that Bienvenu “wasn't a fair

supervisor.” In his brief, Edwin states that Bienvenu told him

he had given him poor reviews because “you don’t like your

job.” Thus, Edwin fails to present evidence that the act was

subjectively offensive.

AppefoHix A

Edwin v. Clean Harbors Environmental Services Incorporated, No! Reported in Fed....

Even if Edwin had presented such evidence, we find that it is

not objectively offensive. To determine whether the victim’s

work environment was objectively offensive, courts consider

the totality of the circumstances, including (l) the frequency

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

is physically threatening or humiliating, or merely an

offensive utterance; and (4) whether it interferes with an

employee's work performance. WC&M Enters., Inc., 496 F.3d

at 399. None of the above factors weigh in Edwin's favor.

Moreover, “criticism of an employee's work performance

does not satisfy the standard for a harassment claim” where

“the record demonstrates deficiencies in the employee's

performance that are legitimate grounds for concern or

criticism,” as it does here. Thompson v. Microsoft Cow.. 2

F.4th 460, 471 (5th Cir. 2021) (cleaned up). The record

shows that Edwin was caught sleeping on site, was frequently

late, and left the plant without approval.

To the extent that Edwin now alleges his termination was a

seventh act of harassment, this argument was raised for the

first time on appeal, so it is also forfeited. Rollins. 8 F.4th at

397. Even so, our court has held that termination is not a

separate incident of a hostile work environment. See Parker

v. Stale of La. Dep't. of Educ. Special Sch. Dist., 323 Fed.

App'x 321,327 (5th Cir. 2009); see also Estate ofMarrineau

v. ARCO Chem. Co.. 203 F.3d 904, 913 (5th Cir. 2000).

Because Edwin, fails to point to any act of harassment that

was timely to his EEOC filing, properly briefed, and rises to

the level of severity required of a hostile work environment

claim, we AFFIRM the district court’s grant of summary

judgment on this claim.

B. Disparate Treatment Claim

To establish a prima facie case of disparate treatment under

Title VII, a plaintiff must show “that he (1) is a member of a

protected group; (2) was qualified for the position at issue;

(3) was discharged or suffered some adverse employment

action by the employer; and (4) was replaced by someone

outside his protected group or was treated less favorably than

other similarly situated employees outside the protected

group.” Ernest v. Methodist Hosp. Sys.. 1 F.4th 333,339 (5th

Cir. 2021) (citation omitted).

To satisfy the “similarly situated” prong, the employee

typically carries out a comparator analysis. Saketkoo v.

Adm'rs ofTulane Educ. Fund. 31 f'.4th 990, 998 (5th Cir.

2022) (citations omitted). Under this analysis. Edwin must

establish that he was treated less favorably than a similarly

situated employee outside of his protected class in nearly

identical circumstances. Id. (citations omitted). “A variety of

factors are considered when determining whether a

comparator is similarly situated, including job responsibility,

experience, and qualifications.” Id. (citation omitted).

*4 Edwin contends that Bryce Manuel, a white male, is a

similarly situated comparator because they initially shared the

same job title and Manuel was promoted ahead of Edwin. We

disagree. Job titles alone do not make employees similarly

situated. See Owens v. Circassia Pharm., Inc., 33 F.4th 814.

827 (5th Cir. 2022). While the two men initially shared the

same job title, the record shows that Manuel was hired to act

as the lead press operator, and his responsibilities included

operating the press, facilitating trailer drops, and acting as a

liaison between Clean Harbors and PPG Industries. In

contrast, Edwin was an environmental technician and did not

regularly serve in the same liaison role. The record also

shows that Edwin had no prior technician experience when he

started at Clean Harbors, whereas Manuel had prior

experience with the exact equipment used in his role as lead

press operator.

Because Edwin fails to present a similarly situated

comparator, we AFFIRM the district court's grant of summary

judgment on this claim.

C. Retaliation Claim Under Title VII

To establish a prima facie case of retaliation under Title VTI,

Edwin must show that “(i) he engaged in a protected activity,

(ii) an adverse employment action occurred, and (iii) there

was a causal link between the protected activity and the

adverse employment action.” Hernandez. 67Q F.3d at 657

(citation omitted).

“If the plaintiff successfully presents a prima facie case, the

burden shifts to the employer to provide a 'legitimate,

non-retaliatory reason for the adverse employment action.’ ”

Id. (citations omitted). At this stage, the employer's burden is

one of “production, not persuasion,” and “involve[s] no

credibility assessment.” Reeves v. Sanderson Plumbing

Prods., Inc.. 530IJ.S. 133, 142(2000) (cleaned up); see also

Bodenheimer v, PPG Indus.. Inc.. 5 F.3d 955, 958 (5th Cir.

1993) (“The employer need only articulate a lawful reason,

regardless of what its persuasiveness may or may not be.”).

If the employer meets this burden, it shifts back to the

plaintiff to show that the employer's rationale is merely a

Appendix A

Edwin v. Clean Harbors Environmental Services Incorporated, Not Reported in Fed....

pretext for discrimination. Reeves, 530 U.S. at 143.

Here, Clean Harbors does not dispute that Edwin stated a

pritna facie case of retaliation but asserts that it terminated

Edwin for failing a drug test, a violation of company policy.

Thus, pretext is the sole issue on appeal.

“A plaintiff may show pretext either through evidence of

disparate treatment or by showing that the employer's

proffered explanation is false or unworthy of credence.”

Caldwell v. KHOU-TV, 850 F.3d 237. 242 (5th Cir. 2017)

(citation omitted). Because Clean Harbors’ reason for

Edwin's termination was his failed drug test, to prevail at this

stage, Edwin must show that reasonable minds could disagree

that this was, indeed, the reason for his termination. Owens,

33 F.4th at 826.

Here, Edwin points to two sections of Clean Harbors’

Alcohol and Drug policy to show that Clean Harbors had

substantia! discretion in his termination so its decision to

terminate him was pretextual.] However, “employment laws

do not transform federal courts into human resources

managers, so the inquiry is not whether [Clean Harbors] made

a wise or even correct decision to terminate [Edwin].”

Owens, 33 F.4th at 826 (cleaned up). “Instead, the ultimate

determination, in every case, is whether, viewing all of the

evidence in a light most favorable to the plaintiff, a

reasonable factfinder could infer discrimination.” Id. (cleaned

up). It was Clean Harbors’ policy to terminate any employee

in a safety-position, like Edwin, who tests positive for drugs,

regardless of their performance or rank, and Edwin has

pointed to no evidence that his termination was actually

motivated by retaliation rather than the failed drug test. Thus,

Edwin has failed to show that a reasonable factfinder could

infer discrimination.

*5 Because Edwin fails to present evidence that Clean

Harbors’ reason for terminating him was pretextual, we

AFFIRM the district court's grant of summary judgment of

this claim.

D. Retaliation Claim Under La. R.S. § 23:967

Louisiana Revised Statute § 23:967 bars an employer from

“tak[ing] reprisal against an employee who in good faith,...

[discloses or threatens to disclose a workplace act or practice

that is in violation of state law.” La. R.S. $ 23:967. Under this

statute, “the employer must have committed a ‘violation of

state law’ for an employee to be protected from reprisal.”

Puis v. Greater New Orleans Expressway Comm'n, 772

So.2d 842. 845 (La. Ann. 5 Cir. 2000) (emphasis in original-).

Thus, to state a claim under the statute, a plaintiff must

“indicate which state law, if any, was violated....” Ware v.

Cl.ECO Power, U.C, 90 F. App'x 705, 709 (5th Cir. 2004);

see a/so Encalarde v. New Orleans Ctr. far Creative

Arls/lUverfroni. 158 So.3cl 826. 826 (La. 2015). Edwin’s

contention that “there is no requirement that a specific state

law be identified” is without merit.

Because Edwin fails to identify any state law Clean Harbors

violated, we AFFIRM the district court’s grant of summary

judgment on this claim.

E. Retaliation Claim Under La. R.S. § 23:1361

Edwin fails to adequately brief the merits of this claim on

appeal, so it is forfeited.^ Rollins, 8 F.4th at 397. However,

even if this issue was not forfeited, as the district court

correctly held, Edwin fails to state a prima facie case of

retaliation.5

Louisiana Revised Statute $ 23:1361 states that, “[n]o person

shall discharge an employee from employment because of

said employee having asserted a claim for [workers’

compensation].” La. R.S. § 23:1631(B). “To prevail on a

retaliation claim, under!? 23:1363., the plaintiffmust establish

that filing a workers’ compensation claim was ‘more probably

than not’ the reason for her termination.” Claiborne v.

Recovery Sch. Dist., 690 F. App'x 249, 260 (5th Cir. 2017)

(citing Chivleatto k Sportsman's Cove. Inc., 907 So.2d 815.

819 (La. App. 5 Cir. 2005)). However, “[i]f the employer

gives a nondiscriminatory reason for the discharge, and

presents sufficient evidence to prove more probably than not

that the real reason for the employee's discharge was

something other than the assertion of the workers’

compensation claim, the plaintiff is precluded from

recovery.” Woolsev v. Delta Disposals. LLC. 914 So.2d 618,

621 (La. App. 2 Cir. 2005) (citation omitted).

Clean Harbors’ nondiscriminatory reason for terminating

Edwin was his failure to pass a drug lest, a violation of

company policy. Clean Harbors’ policy prohibits the use of

illicit drugs. It states that “[a]ny employee returning to work

following a thirty (30) day absence may be subject to a

‘Return from Leave’ alcohol and drug test. A negative result

is required before they will be permitted to return to their

duties.” The policy further states that discipline for failing to

comply with the drug policy may include “termination for

cause.”

Appendix A

Edwin v. Clean Harbors Environmental Services Incorporated, Not Reported in Fed....

*6 Here, Edwin was injured in a workplace accident in

August of 2017, and did not return to work until January of

2018. In line with company policy, Edwin was subject to a

return from leave drug test, which was positive for marijuana.

Seven days after his positive drug test, Edwin was terminated.

Thus, Clean Harbors presents sufficient evidence to prove

more probably than not that the reason for Edwin's

termination was his failed drug test, not his workers'

compensation claim.

Moreover, Edwin filed his workers’ compensation claim in

October of2017, and the record shows that in November of

2017, Clean Harbors contacted Edwin to see when he would

be returning to work. As the district court correctly observed,

the fact that Clean Harbors was working with Edwin to return

to work after he filed his workers’ compensation claim, and

prior to his termination, undermines the claim.

Because Edwin fails to establish a prima facie case under £

23:1361, we AFFIRM the district court's grant of summary

judgment on this claim.

V. CONCLUSION

For the aforementioned reasons, the judgment of the district

court is AFFIRMED.

All Citations

Not Reported in Fed. Rptr., 2023 WL 4046275

Footnotes

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

1

The denial of amotion for summary judgment is an interlocutory order, and amotion for reconsideration of such denial is analyzed

under Federal Rule of Civil Procedure 54(b). See Cabral v. Brennan. 853 P.3d 763. 766 (5th Cir. 2017).

2

To the extent it could be argued that Edwin raised the issue in his reply brief, “[t]his court does not entertain arguments raised for

the fust time in a reply brief.” US. v. Ramirez. 557 F.3d 200. 203 (5th Cir. 2009).

Appendix A

Edwin v. Clean Harbors Environmental Services Incorporated, Not Reported in Fed....

3

While this argument fails because employers are allowed to be wrong in their employment decisions, Edwin nevertheless does not

fit under either section of the policy. Section 9.0 encourages employees to voluntarily come forward to seek the assistance of a

substance abuse expert or professional, and/or employee assistance program, on their own, without fear of reprisal. It is undisputed

that Edwin voluntarily disclosed that he smoked marijuana without a prescription. However, nothing in the record indicates that

Edwin sought assistance under Section 9.0.

Section 12.0, stales that “[bjefore undertaking disciplinary measures with an employee who has failed to comply with the

requirements of Clean Harbors' Alcohol and Drug Policy or Standard, Clean Harbors must take appropriate steps to determine if the

violation ... is related to any disability which Clean Harbors has a legal duty to accommodate.” Edwin contends that the marijuana

was prescribed from his doctor to treat a disability. However, the record shows that the marijuana was not prescribed by a doctor.

Moreover, Clean Harbors’ director of human resources, two vice presidents, and internal counsel all reviewed the doctor’s note before

making the decision to terminate Edwin.

4

Edwin briefs the relevant legal standard then, in one sentence, claims that the district court erred in concluding he failed to state a

prima facie case, without any analysis.

5

Because Edwin fails to state a prima facie case, we do not reach the relation back issue.

End of Document

£) 2023 Thomson Reuters. No claim to original U.S. Government

Works.

AppehSix A

Edwin v. Clean Harbors Environmental Services Inc., Slip Copy (2022)

2022 WL 990530

Only the Westlaw citation is currently available.

United States District Court, W.D. Louisiana,

Lake Charles Division.

Gilbert EDWIN

v.

CLEAN HARBORS ENVIRONMENTAL

SERVICES INC.

I. Procedural and Factual Background

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

employer Clean Harbors Environmental Services Inc. (“Clean

Harbors”), alleging claims of racial discrimination and

retaliation. Rec. Doc. 42. Clean Harbors subsequently moved

for summary judgment on all claims. Rec. Doc. 71. After

reviewing the record, the Court granted summary judgment

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

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

CrVIL ACTION NO. 2:18-0385

Signed 03/31/2022

Attorneys and Law Firms

Philip Joel Burse, Law Office of Philip Burse, Baton Rouge,

LA, for Gilbert Edwin.

Gilbert Edwin, Lake Charles, LA, Pro Se.

Regarding this Title VII retaliation claim, the Court ruled that

Mr. Edwin had made his prima facie case for retaliation

because Mr. Edwin had tiled an EEOC claim, was

subsequently fired, and because Clean Harbors had seemingly

been notified by the EEOC of the investigation. Id. at 10. The

Court further held that there was an issue of material fact

regarding the company policies which could lead a

reasonable jury to find that the decision to fire Mr. Edwin

was pretextual. Id at 11-12. It is this ruling that Clean

Harbors is asking the Court to reconsider.

Gregory Guidry, Andrew John Halverson, Ogletrec Dcakins

et al., Lafayette, LA, for Clean Harbors Environmental

Services Tnc.

MEMORANDUM RULING

S. MAURICE HICKS. JR., CHIEF JUDGE

*1 Presently before the Court is' Defendant's Motion for

Reconsideration regarding the Court’s previous order on the

Motion for Summary Judgment. Rec. Doe. 122. The

Defendant asks that the Court reconsider its previous ruling

denying the Motion for Summary Judgment regarding

Plaintiffs Title VII retaliation claim. This Motion was

opposed by the Plaintiff. Rec. Doc. 126. For the following

reasons, the Motion is GRANTED.

II. Legal Standard

While the Federal Rules of Civil Procedure do not explicitly

recognize a motion for reconsideration, such motions are

generally reviewed under Federal Rule of Civil Procedure

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

modify an interlocutory order for cause seen by it to be

sufficient.” Melancon v. Texaco, Inc., 659 F.2d 551,553 (5th

Cir. 1981). Generally, the Courts treat such motions in a

similar fashion as Rule 59(e) motions to alter or amend the

judgment, although the “standards for granting

reconsideration under Rule 54(b) are somewhat looser than

those under Rule 59(e).” Livingston Downs Racing Ass'n,

Inc, v. Jefferson Downs Com., 259 F.Supp.2d 471. 475

(M.D. La. 2002); see also I IBM Interests, LLC v.

Chesapeake La., I.P, 2013 WL 3893989 at *1 (W.D. La.

2013). These types of motions are generally meant to “serve

the narrow purpose of allowing a party ‘to correct manifest

errors of law or fact or to present newly discovered

evidence.’ ” Waltman v. Inf! Paper Co., 875 F,2d 468, 473

(5th Cir. 1989) (quoting Keene Corp. v, Int'l Fidelity

Insurance. Co., 561 F.Supn. 656, 665 (N.D, III. 1982)).

III. Application

_______________________________________________ Appendix C___________________

WESTLAW © 2023 Thomson Reuters. Mo claim to original U.S. Government Works.

1

Edwin v. Clean Harbors Environmental Services Inc., Slip Copy (2022)

a. Prima Facie case

Here, Clean Harbors is asking the Court to reconsider,

arguing that it made errors in its analysis of the record

regarding both the primafacie case of the Title VII retaliation

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

analyze the issue regarding Mr. Edwin's prima facie case of

Title V1T retaliation.

To establish -a. primci facie case of retaliation under Title VII,

the Plaintiff must show that “(i) he engaged in a protected

activity, (ii) an adverse employment action occurred, and (iii)

there was a causal link between the protected activity and the

adverse employment action.” Hernandez v. Yellow

Transportation, Inc., 670 F.3d 644 (SthCir, 2012). Regarding

the causal link, “[c]lose timing between an employee’s

protected activity and an adverse action against him may

provide the ‘causal connection’ required to make out a prima

facie case of retaliation.” Swanson v. General Services

Admin., 110 F.3d 1180, 1188 (5th Cir, 19971 (citing

Armstrong v. City of Dallas. 997 F.2d 62, 67 (5th Cir.

1993)).

*2 In the present matter, the first two prongs were not

disputed. Mr. Edwin had filed a report with the EEOC and

was subsequently fired. This Court previously held that there

were enough facts to establish the third prong regarding

causation because the record seemed to indicate that Clean

Flarbors had been sent a letter from the EEOC approximately

one month prior to Mr. Edwin's termination. See Rec. Doc.

116 at 10; Rec. Doc. 71 -2, Exhibit 18 at CH0010-0011. In its

Motion for Reconsideration, however, Defendant has shown

that this Notice from the EEOC was not received. Rec. Doc.

122-1 at 2-3. Rather, it appears that the EEOC Notice was

sent to an incorrect email address on December 19,2017 and

was not resent thereafter. Rec. Doc. 71-2, Exhibit 18 at

CH0024. Clean Harbors has also demonstrated the reason the

email was not received, as the email address used by the

EEOC in sending the Notice contained a typo. Compare Rec.

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

Exhibit 10 at CH0252 (demonstrating that the email used by

the EEOC was wrong). It is thus apparent that Clean Harbors

would not have had knowledge of Mr. Edwin's EEOC filing

through the EEOC Notice as that email was not delivered.

A further review of the record demonstrates that without this

basis, it is unclear whether Clean Harbors had any knowledge

that Mr. Edwin had filed an EEOC claim prior to his

termination. Mr. Edwin first personally informed Clean

Harbors of his EEOC complaint at the time he was being

terminated. See Rec. Doc. Rec. Doc. 99-10, page 286; Rec.

Doc. 99-7, pages 189-193. However, by this time the decision

to terminate Mr. Edwin had already been finalized for his

failure to comply with the company's drug policy. Rec. Doc.

71 -2, Exhibit 16 at CH0623. Thus, any knowledge stemming

from Mr. Edwin himself would not establish a pritna facie

case of retaliation. Factual issues remain, however, as to

whether Clean Harbors had notice of the EEOC complaint

through the right to sue notification. In her deposition,

Barbara Ward, Clean Harbors’ Human Resources Director,

initially stated that she had received the right to sue

notification from the EEOC on December 21, 2017. Rec.

Doc. 105-4, p. 83, lines 17-25. However, later in her

deposition, Ms. Ward noted that the right to sue notification

had been sent to the wrong address and had been faxed to her

“sometime in January.” Id, p. 173-174. This right to sue

notification shows that Mr. Edwin had filed some claim with

the EEOC although it did not include any details of the

charge or investigation. Rec. Doc. 71-2, Exhibit 18 at

CH0013-0014. Thus, there remains some factual dispute as

to when Clean Harbors received this right to sue notification,

although it appears that they received it sometime during the

month prior to Mr. Edwin's termination. Because close

proximal timing can by itself establish a prima facie case of

retaliation, the Court finds that summary judgment remains

inappropriate as to the prima facie case.

b. Evidence of Pretext

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

facie case of retaliation, then the burden shifts to the

defendant “to proffer a legitimate, non-retaliatory reason for

... [the] termination.” Musser v. Paul Quinn College. 944

F.3d 557, 561 (5th Cir. 2019). If the defendant can do so,

then the burden shifts back to the plaintiff who must then

show that the employer's reason is a mere pretext, which

requires a “showing that the adverse action would not have

occurred ‘but for’ the employer's retaliatory motive.” Feist v.

La. Don't of Justice. Office of Att'v General. 730 F.3d 450.

454 (5th Cir. 2013) (citing Univ. of Texas Southwestern

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

meet this but for showing, the plaintiff must “show that there

is a ‘conflict in substantial evidence’ on this ultimate issue.”

Musser, 944 F.3d at 561 (quoting Hernandez, 670 F.3d at

658). This standard can be met by showing evidence such as

“disparate treatment, or that her employer’s explanation is

unworthy of credence.” Brown v. Wal-Mart Stores East, L.P.,

Appendix C

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2

Edwin v. Clean Harbors Environmental Services Inc., Slip Copy (2022)

969 F.3d 571, 577 (5th Cir. 2020) (quoting Hairc v. Bd. of

Supervisors of La. State Univ. Agrie. & Meeh. Coil.. 719

F.3d 356, 363 (5th Cir. 2013)1. Further, evidence that a

company failed to follow their policies may also be used in

establishing pretext. See Smith v. Xerox Corp., 371 F.App'x

514, 520 (5th Cir. 2010) (citing the question of “whether the

employer followed its typical policy and procedures in

terminating the employee” as one “indicia of causation”).

*3 Here, Clean Harbors has demonstrated a legitimate,

non-retaliatory reason for firing Mr. Edwin. As Mr. Edwin

sought to come back to work, he tested positive for

marijuana. Rec. Doc. 71-2, Exhibit 15 atCH0052; Rec. Doc.

71-2, Exhibit 13 at CH 0254. While Mr. Edwin has referred

to this as medical marijuana, it is undisputed that it was not

prescribed by a doctor. Rec. Doc. 98-1, Exhibit 31 at

CH0402 (a doctor's letter noting that the doctor was not

authorized to prescribe medical marijuana); Rec. Doc. 71-2,

Exhibit 11, *\\ 6. Clean Harbors has a policy which “strictly

prohibits the possession, use ... of illicit drugs or other

intoxicants.” Rec. Doc. 71-2, Exhibit 2 at CH0064. Further,

any employee returning from a leave of absence could be

required to take a drug test. Rec. Doc. 71-2, Exhibit 3 at

CH0163. Violation of the policy could result in discipline “up

to and including termination for cause.” Id at CHOI 70. Thus,

Clean Harbors has met their burden of showing a valid reason

for firing Mr. Edwin, which shifts the burden to Mr. Edwin to

establish pretext.

In its original ruling, the Court held that certain Clean

Harbors policies seemed to provide Clean Harbors with

enough discretion that they could have chosen not to fire Mr.

Edwin. Rec. Doc. 116, p. 11-12. Clean Harbors now asks the

Court to reconsider that position for two reasons, first that the

Court failed to consider how Mr. Edwin's safety-sensitive

position impacted their decision to terminate and, second, that

Mr. Edwin would not technically meet the policy

requirements. The Court will consider each argument in turn.

Clean Harbors first argues that it was policy to fire any

employees in safety-sensitive positions who failed a drug

screening. The Court notes that this issue was not initially

raised in the Motion for Summary Judgment but that Clean

Harbors feels that this is now relevant in light of the Court’s

previous ruling. In her deposition testimony, Ms. Ward

repeatedly indicates that it was Clean Harbors' policy to

terminate any “employee [who] tests positive in a

safety-sensitive position for drugs” and that this was true

regardless of “whether he was a good performer, a poor

performer, [or] the greatest employee ...”. Rec. Doc. 105-4,

p. 65, lines 5-22. See also Id., p. 69, lines 16-20; IcL, p. 179,

lines 1-3 (stating that when there was a positive test “[i]n a

safety-sensitive position, [that she] had no examples of when

it did not result in termination”). Mr. Edwin's job was a

safety-sensitive position. Id, p. 95, lines 1-8. Mr. Edwin has

not shown any evidence that would create a factual dispute on

this specific issue, and it would thus appear on

reconsideration that Clean Harbors was following their

normal drug-related policy regarding safety-sensitive

positions.

Clean Harbors also asks the Court to reconsider whether Mr.

Edwin might still be protected by other portions of the

company's drug policies. Clean Harbors’ policy protects an

individual who suffers from “an alcohol or drug dependency”

and who “voluntarily come[s] forward to seek the assistance”

of one of several experts for that dependency. Rec. Doc.

71-2, Exhibit 3 at CH'0169. Notably, Mr. Edwin does not

clearly fit this policy as he was not seeking help for

dependency, but rather mentioned his drug use as he sought

to return to work because he was about to fail his drug test. In

its previous ruling, however, the Court had noted that this

policy seemed to provide Clean Harbors with some discretion

and that they could have chosen not to fire Mr. Edwin.

However, this finding no longer appears accurate in light of

the additional, undisputed information discussing Clean

Harbors’ consistent practice regarding positive drug screens

for employees in safety-sensitive positions. As such, it would

appear that there is no longer a “conflict in substantial

evidence” that would show that Clean Harbors stated reason

for terminating Mr. Edwin, namely his failed drug test as he

sought to return to work, was prctextual.

As a final note, Mr. Edwin argues that Clean Harbors failed

to meet its policy by investigating if his violation of the

Alcohol and Drug Policy was “related to any disability which

Clean Harbors [had] a duty to accommodate.” Id at CH0170.

However, it is undisputed that Clean Harbors did, in fact,

review this issue, including the doctor’s note discussing Mr.

Edwin's marijuana usage, but determined that terminating Mr.

Edwin remained the correct decision. Rec. Doc. 105-4, p.

190-191; Rec. Doc. 71-2, Exhibit 17 at CH0078. Thus, it

appears that this policy would not protect Mr. Edwin either.

*4 Ultimately, upon reconsideration, the Court agrees with

Clean Harbors that Mr. Edwin has not met his burden of

proving that the decision to terminate Mr. Edwin for his

violation of the Alcohol and Drug Policy was pretextual.

There are no facts to dispute the contention that Clean

Harbors had a consistent internal policy to terminate

Appendix C

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3

Edwin v. Clean Harbors Environmental Services Inc., Slip Copy (2022)

individuals in safety-sensitive positions who violated the

policy. As such, Mr. Edwin's Title VII retaliation claim

should be dismissed.

IV. Conclusion

As a result of the foregoing analysis, Defendant's Motion for

Reconsideration (Rec. Doc. 122) is GRANTED. Therefore,

Plaintiffs remaining claim for retaliation under Title VII is

DISMISSED WITH PREJUDICE. The instant ruling

dismisses Plaintiffs final claim and the case is thus closed.

IT IS SO ORDERED.

THUS DONE AND SIGNED, in Shreveport, Louisiana, on

this 31 st day of March, 2022.

All Citations

Slip Copy, 2022 WL 990530

End of Document

€> 2023 Thomson Reuters. No claim to original li.S. Government

Works.

Appendix C

WcSTLAW © 2023 Thomson Reuters. No claim to original U.S. Government Works.