United States District Court, E.D. Louisiana
NANNETTE JOLIVETTE BROWN, District Judge.
Before the Court is Defendant Home Depot U.S.A., Inc.'s ("Home Depot") "Motion for Summary Judgment." Having considered the motion, the memoranda in support and in opposition, the record, and the applicable law, the Court will grant the motion.
A. Factual Background
Plaintiff Gerald Brown, an African American, alleges that he was terminated from his position as Assistant Store Manager ("ASM") of Home Depot's store in Marrero, Louisiana because of his race. Brown worked as an ASM from April 2010 until he was terminated on July 4, 2013. From December 2011 until his termination, Brown's supervisor was Chad Abadie, a Caucasian.
On March 20, 2012, Brown received his yearly evaluation for Fiscal Year 2011, which was drafted and delivered by Abadie. The evaluation noted some of Brown's strengths and performance deficiencies. Brown had an opportunity to submit any disagreements with his review in writing, but did not do so. He was scored as a "Valued Associate" and "Well Positioned" in the review.
Brown received disciplinary notices during his employment at Home Depot. On April 12, 2012, Abadie issued Brown a disciplinary notice for failing to execute "shrink plans" in the Lumber and Building Materials Departments, which Brown supervised. On May 14, 2012, Brown received another disciplinary notice, again for failing to execute Home Depot's "shrink plans." On July 3, 2012, Brown received a "final warning" for failing to report an incident experienced by an hourly associate. On July 11, 2012, Brown and other ASMs received a group disciplinary notice for failing to follow Home Depot's "zero markdown" policy. At the time of this group write-up, the Marrero store had three African American ASMs and one Caucasian ASM.
After the July 11, 2012 incident, Home Depot's Associate Advice and Counsel Group ("AACG") recommended that Brown be terminated, since he had already received a final warning. Sondra Hogan-Jones, the District Human Resources Manager who is African American, initially agreed with the AACG's recommendation to terminate Brown. Hogan-Jones consulted with Demetrice Brown, the Regional Associate Relations Manager who is African American, and the decision was made not to terminate Brown because the incident was related to an ASM-wide issue at the Marrero store. In his evaluation for fiscal year 2012, Brown received a "V2" rating as a valued associate. Abadie believed that Brown's performance evaluation was deserving of an "I" rating, meaning that improvement was needed.
On January 19, 2013, Abadie issued Brown a written counseling, which noted that Brown failed to show up for his shift on January 7, 2013. On February 1, 2013, Abadie issued Brown another final warning, which stated that his performance during a "district business walk" conducted by the district management team fell below the standards expected for job performance. After issuing this warning, Abadie kept "manager's notes" of Brown's performance.
At some point following the February 1, 2013 incident, Hogan-Jones requested approval from Demetrice Brown to terminate Brown. In her request, she outlined Brown's performance failures and attached his Fiscal Year 2012 evaluation and his performance counselings. In response, Demetrice Brown noted that there were only two "active" counseling notices on file and requested additional information from Hogan-Jones about her decision to recommend that Brown be terminated. Hogan-Jones presented the content of "manager's notes" which Abadie had been keeping with respect to Brown's job performance. Demetrice Brown approved the termination, and Brown was terminated on July 4, 2013.
At the time of Brown's termination, he was one of four ASMs in the Marrero store. As of January 1, 2013, three of those ASMs, including Brown, were African American and one, Joseph Fouchi, was Caucasian. Today, there are three ASMs in the Marrero store: one African American and two Caucasians. Neil Penner, a Caucasian, is a Department Head at the Marrero store.
B. Procedural Background
Brown filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on December 4, 2013 and was issued a right to sue letter on June 16, 2014. On June 24, 2014, Brown filed the complaint in this lawsuit against Home Depot, wherein he alleges race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the Louisiana Employment Discrimination statute, LA. R.S. § 23:301 et seq. 
Home Depot filed the pending motion for summary judgment on March 3, 2015, contending that Brown's claims are unsupported by evidence and fail as a matter of law. Brown filed a memorandum in response on March 10, 2015,  and Home Depot filed a memorandum in reply on March 19, 2015. Brown submitted a supplemental memorandum in further opposition to summary judgment on March 23, 2015.
II. Parties' Arguments
A. Home Depot's Arguments in Support of Summary Judgment
According to Home Depot, the burden-shifting paradigm set forth in McDonnell Douglas Corp. v. Green applies in employment discrimination cases where, as here, there is no direct evidence of discrimination. Home Depot contends that Brown must first establish a primafacie case of race discrimination by demonstrating that (1) he is a member of a protected class, (2) he was qualified for the employment position at issue, (3) he suffered an adverse employment action, and (4) he was treated less favorably because of his membership in that protected class than were other similarly situated employees who were not members of the protected class, or that he was replaced by someone outside of his protected class. Home Depot does not dispute that Brown satisfies the first three elements of this test; instead, Home Depot argues that Brown cannot demonstrate that he was replaced at all, let alone by someone outside of his protected class. Home Depot proffers the deposition testimony of both Abadie and Neil Penner, who attest that Penner was not offered Brown's former position. Although Penner and other "key-carrying hourly associates" filled in and helped where they were needed shortly after Plaintiff's termination, " Home Depot avers that this does not establish that Brown was replaced for the purpose of establishing his prima facie case.
Home Depot also argues that Brown cannot show that a similarly situated employee outside of his protected class was treated more favorably under nearly identical circumstances. According to Home Depot, Brown argues that Fouchi, a Caucasian ASM, was involved in a $10, 000 markdown adjustment approval on shingles but was not disciplined. However, Home Depot avers, neither Abadie nor Hogan-Jones were aware of the adjustment and, moreover, Brown cannot show that Fouchi had an identical, much less similar, performance or disciplinary history as Brown. Accordingly, Home Depot contends, Brown cannot establish the fourth requirement of his prima facie case.
Even if Brown could establish a prima facie case of employment discrimination, Home Depot argues that it had a legitimate, non-discriminatory reason for his discharge: his continued and consistent poor performance. According to Home Depot, Brown was issued a "written counseling" on four occasions between July 23, 2009 and July 12, 2011 for his failure to follow various store policies,  and on December 22, 2011 for his failure to monitor and process store markdowns as required by Home Depot's Standard Operating Procedures ("SOPs"). Home Depot argues that Brown was issued six additional written counselings between April 12, 2012 and February 1, 2013 for failure to follow various SOPs.
Finally, Home Depot argues that Brown has no evidence that Home Depot's stated reason for the termination is actually a pretext for discrimination. Home Depot contends that Brown attempts to show pretext by questioning the wisdom of the termination decision, but the fact that Brown believed that he was an "exemplary" employee is not sufficient to satisfy Brown's burden of demonstrating pretext.
B. Brown's Arguments in Opposition to Summary Judgment
In response, Brown argues that "after his termination his job duties were assigned to Caucasian employees and that Home Depot retained a Caucasian in the same position that Brown held." Specifically, Brown argues that he was replaced by Neil Penner, a Caucasian. To support this argument, Brown proffers the affidavits of Syntheria Prewitt, a Sales Associate in the Millwork Department, and Danise Franklin, a Home Depot customer. According to Brown, Prewitt states that "Abadie told the sales associates that Penner was appointed as an Interim ASM to replace Brown." Brown also contends that Franklin called the Marrero store after Brown's termination and was directed to Penner when she asked to speak with Brown's replacement.
Brown also appears to allege that as of August 16, 2013, Fouchi assumed responsibility for Brown's former departments. According to Brown, "Home Depot retained Fouchi, Caucasian, as an ASM at its Marrero store and assigned him a number of Brown's former duties." As evidence of this, Brown argues that Fouchi signed Penner's midyear evaluation, a task which, apparently, Brown used to complete.
With respect to evidence of pretext, Brown contends that he received favorable reviews and bonuses, and that this creates a genuine issue of material fact as to pretext. He argues that Home Depot terminated him based on "a suspicious July 4, 2012 Final Warning and on a bogus January 19, 2013 Counseling Notice. According to Brown, the Final Warning was for allegedly failing to report an accident that occurred on July 1, 2012; Brown denies having any knowledge of the accident. Brown contends that the Counseling Notice was issued "for absences that did not happen." Specifically, he alleges that Abadie created a "bogus" counseling notice on January 19, 2013 for Brown's alleged absence from work on January 7, 2013 and tardiness on January 17, 2013,  but that Brown was not scheduled to work on either day and, moreover, was ill on January 7, 2013.
Brown avers that Abadie and Hogan-Jones recommended Brown's termination based "almost exclusively on documents created by Abadie and on Abadie's truthfulness in creating those documents." Specifically, Brown alleges that:
In recommending Brown's termination, Hogan-Jones relied on three disciplinary notices created by Abadie, the development plan that Abadie allegedly created on Brown, and Abadie's eight manager's notes. Brown has provided evidence that casts serious doubts regarding the validity of two of those disciplinary notices, the July 4, 2012 Final Warning and the January 19, 2013 Counseling Notice. In regard to the third, which was the February 1, ...