United States District Court, E.D. Louisiana
RATIB H. ALKHAWALDEH
NAIRN CONCRETE SERVICES, INC.
ORDER AND REASONS ON MOTION
JOSEPH C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE.
Plaintiff, Ratib H. Alkhawaldeh, alleges that his former employer, Nairn Concrete Services, Inc. (“Nairn”), violated Title VII, 42 U.S.C. § 2000e(k), by discriminating against him in actions based on his national origin and religion, specifically Jordanian Muslim. He asserts four distinct claims: (1) hostile work environment, (2) discriminatory assignment of a job task that was not part of his duties, (3) discriminatory termination of his employment and (4) termination in retaliation for having complained about the pre-termination acts of alleged discrimination. Complaint, Record Doc. No. 1. This matter was referred to a United States Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all parties. Record Doc. No. 19.
Nairn filed a motion for summary judgment as to all of plaintiff’s claims, Record Doc. No. 27, supported by excerpts from plaintiff’s deposition testimony, the affidavit of Nairn’s president, David Pavlovich, and several documentary exhibits. Nairn also argues that Alkhawaldeh cannot establish a prima facie case of either discrimination or retaliation. Nairn alternatively contends that, if plaintiff can demonstrate a prima facie case of discrimination based on a hostile work environment, the evidence establishes defendant’s Ellerth/Faragher affirmative defense to liability on that claim. Nairn argues that, if Alkhawaldeh can establish a prima facie case of discrimination based on his job assignments or his termination, defendant had legitimate non-discriminatory reasons for those decisions and plaintiff cannot show that these reasons were pretextual. As to plaintiff’s retaliation claim, if plaintiff can establish a prima facie case, Nairn contends that he cannot carry his ultimate burden to show that retaliation was the but-for cause of his termination. Finally, Nairn asserts that plaintiff’s discrimination claims based on events that occurred more than 300 days before he filed his charge with the Equal Employment Opportunity Commission, or before January 25, 2011, are time-barred for failure to exhaust his administrative remedies.
Alkhawaldeh received leave to file a memorandum in opposition to Nairn’s summary judgment motion that was untimely and in excess of the court’s page limits. Record Doc. Nos. 31, 34, 35. He argues that material facts are in dispute as to each of his claims. He also contends that his discrimination claims based on events that occurred before January 25, 2011, are not barred because those events comprise a continuing violation with events after that date.
Defendant received leave to file a reply memorandum. Record Doc. Nos. 34, 38. The reply contains four pages of new exhibits that were not already in the record. These new exhibits consist of three additional pages from plaintiff’s deposition transcript, Defendant’s Exh. 1 to reply memorandum, Record Doc. No. 38-1 at pp. 2, 9, 20 (pp. 38, 54 and 96 of the transcript); and a list of “Loader Man Duites [sic], ” Defendant’s Exh. 2 to reply memorandum, Record Doc. No. 38-2. The court has not considered these exhibits because plaintiff had no opportunity to respond to them. Even if the court considered the new exhibits, they would not change the outcome of this decision.
Having considered the complaint, the record, the arguments of the parties and the applicable law, IT IS ORDERED that defendant’s motion for summary judgment is GRANTED IN PART AND DENIED IN PART as follows.
The following material facts are accepted as undisputed solely for purposes of this summary judgment motion. These facts are based on the competent summary judgment evidence, consisting primarily of plaintiff’s deposition testimony, Defendant’s Exhs. 1 and 4, Record Doc. Nos. 27-4 and 27-7, and the affidavit of Nairn’s president, David Pavlovich. Defendant’s Exh. 2.
Plaintiff is a Muslim from Jordan. He was employed by Nairn from 2009 to September 29, 2011, as a front end loader operator. Fred Klotz became Nairn’s operations manager in the spring of 2010. Before that date, plaintiff received good performance reviews from three different supervisors. Plaintiff’s Exhs. 1,  2, 3.
On April 1, 2010, Klotz approached plaintiff and asked where he was from. Klotz told Alkhawaldeh that he thought plaintiff was Mexican and asked who had helped plaintiff to get his job. Although Klotz said nothing derogatory about Jordanians, Arabs or Muslims, Alkhawaldeh was angered by the comments and thought that Klotz was trying to provoke him. Plaintiff reported the conversation to an unnamed supervisor. This conversation had no impact on plaintiff’s ability to do his job. Defendant’s Exh. 1, deposition of Ratib Alkhawaldeh, at pp. 48-49, 51, 53.
Two weeks later, Klotz asked Alkhawaldeh if he was a Muslim. When plaintiff responded affirmatively, Klotz said he did not like working with Arabs or Muslims. Alkhawaldeh reported these remarks to the mechanic supervisor, Ralph DeMatteo, who was a friend of Klotz’s and whom plaintiff trusted. Id. at p. 53; see also Plaintiff’s Exh. 1, undated employee performance review of plaintiff signed by DeMatteo as manager.
Klotz approached Alkhawaldeh again about three weeks later. Klotz said he did not like plaintiff because plaintiff is an Arab and a Muslim. Alkhawaldeh reported this conversation to his immediate supervisor, Marcellin Billiott, known as “Chubby, ” and to DeMatteo. Plaintiff testified that his work performance did not suffer as a result of the second or third conversations. Id. at pp. 56-58. There is no evidence that Nairn took any action in response to plaintiff’s reporting of these three conversations that occurred between April 1 and about the first week of May, 2010.
About three months later, on a Friday in August 2010, Klotz called Alkhawaldeh into his office. Klotz closed the door and told plaintiff to sit down. Klotz typed on his computer, stood up and asked Alkhawaldeh in a loud voice if he knew why Klotz did not like Arabs and Muslims. Klotz then showed plaintiff a video “of someone with his head cut off.” Alkhawaldeh “felt so badly that this guy [Klotz] is going to kill me or something. And he continued to say that these are the Muslims, those are the Muslims.” Although Klotz did not specifically threaten plaintiff with violence or touch him, Klotz was standing up and shouting “this is the Muslim.” Alkhawaldeh was frightened that Klotz “was about to do something against me because he physically . . . is bigger than me and I was kind of afraid of him. . . . [T]he way he was presenting himself with high and loud voice made me fearful and I had to leave . . . . because he’s so close so I just left . . . . After he showed me the video I was very afraid, I ran to Ruby, the secretary, and I told her that he would show me the video and I’m very scared.” Id. at pp. 61-63.
Alkhawaldeh immediately reported the incident to Ruby Swilley, Nairn’s office manager. He also reported it to Chubby. Chubby told plaintiff that he would talk with Klotz. It was the end of the work day, and Alkhawaldeh left work. Id. at pp. 63-64.
Plaintiff was scheduled to work on Saturday, the day after the video incident. After telephoning his supervisor for permission, he reported to work about an hour late that day because he had a muscle cramp in the morning. Id. at p. 74.
In response to plaintiff’s complaint about the video incident, Nairn’s president, David Pavlovich, called a meeting of all employees the following Monday. Id. at p. 80; Defendant’s Exh. 2, Pavlovich affidavit at ¶ 9. Pavlovich told the employees at the meeting that Nairn does not discriminate against anyone and that any discrimination was unacceptable. He ordered Klotz to apologize to plaintiff for Klotz’s actions. Id. One or two days later, Klotz orally apologized to Alkhawaldeh and gave him a written apology letter. According to plaintiff, “everyone knew that” Klotz had apologized to him. Defendant’s Exh. 1, Alkhawaldeh deposition at pp. 86-87.
After this meeting, Klotz reduced his contact with Alkhawaldeh. Plaintiff’s testimony is not entirely clear about the dates, but the competent evidence is undisputed that Klotz took no further allegedly discriminatory actions for at least three, and possibly as many as seven, months after his apology. Id. at pp. 87, 93-95. Alkhawaldeh testified that, in March 2011, Klotz began blaming him for mistakes in plaintiff’s work, such as leaving his machine dirty, and that this type of complaint continued until plaintiff was fired in September 2011. Alkhawaldeh denied that he left his machine dirty. He testified that five other people used his machine at different times after he had cleaned it and that it would be dirty when he returned to work in the morning. Id. at pp. 87-88.
The next incident of which Alkhawaldeh complains occurred when Klotz and DeMatteo said to each other, within plaintiff’s hearing, that Arabs and Muslims are stupid people, that Arabs are stupid and are killing each other, and that Arabs and Muslims treat women badly. This overheard conversation occurred three to seven months after the video incident. Plaintiff believed that Klotz and DeMatteo wanted him to hear their conversation and were trying to provoke him to do something wrong so they could fire him. Alkhawaldeh did not pay a lot of attention to the statements and did not respond to them. Id. at pp. 68, 70, 72, 76.
These are the only statements about Arabs and Muslims that plaintiff heard from Klotz and/or DeMatteo, and he heard them only once. Id. at pp. 78-80. He did not report these comments to Pavlovich or Swilley. Id. at pp. 99-100.
Plaintiff felt that Klotz treated him differently from March through May 2011 regarding job duties that Klotz told him to perform, particularly with respect to being told that he had to grease the stacker. However, Alkhawaldeh did not report the different treatment to anyone. Id. at pp. 101-02. He testified that Chubby told Klotz at some unspecified time that greasing the stacker was not plaintiff’s responsibility. Id. at p. 60.
According to Pavlovich, a front end loader operator’s duties include greasing the bearings on the stacker and plant. Pavlovich states that this was a part of a front end loader operator’s duties before Klotz was hired, that all front end loader operators are required to perform this task and that Alkhawaldeh was not singled out to perform that job. The stacker is approximately 40 feet off the ground and is accessed by a six-step ladder and a catwalk with a hand rail and guard. Greasing the stacker is preventive maintenance that is done once or twice a week and takes approximately ten minutes. Defendant’s Exh. 2, Pavlovich affidavit at ¶¶ 5-8.
Alkhawaldeh testified that greasing the stacker was not part of his job duties, that he did not have the training to do it and that it was routinely performed by mechanic shop personnel before Klotz asked him to do it beginning about June 2011, Defendant’s Exh. 1, Alkhawaldeh deposition at pp. 40-41, or as early as March 2011. Id. at p. 101. For purposes of this motion, this fact dispute between plaintiff’s testimony and Pavlovich’s affidavit is resolved in favor of plaintiff’s testimony that he was not required to perform this task as part of his job duties before March or June 2011.
Alkhawaldeh had an accident with his front end loader in November 2010 that damaged a vehicle owned by Southern Scales & Controls, Inc. Nairn paid for Southern Scales’s property damage. Defendant’s Exh. 2, Pavlovich affidavit, at ¶ 11.
Plaintiff was involved in another accident in April 2011. He backed up his front end loader and collided with a truck owned by David Joseph that was also backing up. Nairn paid for the damage to Joseph’s vehicle. Plaintiff was not reprimanded for the accident. Id. at p. 114; Defendant’s Exh. 2, Pavlovich affidavit at ¶ 12. A disciplinary warning regarding this accident apparently was in Alkhawaldeh’s personnel file, Plaintiff’s Exh. 12, but it was never signed by a supervisor nor issued to plaintiff.
A piece of equipment that Nairn rented from Louisiana Rents was damaged by Alkhawaldeh’s misuse in May 2011, and Nairn was charged for repairs to the equipment. Id. at ¶ 13. Although plaintiff’s counsel denies in his memorandum in opposition to defendant’s summary judgment motion that plaintiff misused the equipment, no competent evidence supports his denial.
On July 5, 2011, Klotz gave plaintiff a written warning for “failure to properly maintain equipment under his supervision.” Plaintiff’s Exh. 14. The disciplinary action notice stated that Nairn was charged $3, 500 to repair the bucket of a rented front end loader, which had been used for about one month. The notice says that the rented machine had excessive wear of its bucket blades and had too many idle hours on the engine and was dirty for its age. The warning stated that Alkhawaldeh failed to advise any supervisor of problems with the machine until one day before his regular machine was returned and did not follow instructions on how to scoop material. Plaintiff was told to improve his job performance by operating the front end loader in five specific ways:
1. Operate loader as instructed by supervisor. “Float” bucket on pavement.
2. Scoop material as instructed, don’t drag blade on ground.
3. Clean everyday and remove built up concrete.
4. Shut engine off when not in use.
5. Do maintenance check every day.
The notice stated that further infractions will result in disciplinary measures, such as suspension without pay and ultimately dismissal. Plaintiff signed the notice to acknowledge receipt. Id.; Defendant’s Exh. 1, plaintiff’s deposition at p. 94.
On September 22, 2011, Klotz and DeMatteo called plaintiff into a meeting and told him that he had to grease the stacker in the Nairn plant. Alkhawaldeh responded that it was not his job. He said he was not trained for it and was afraid to do it. DeMatteo then told Klotz that it was “him or Ratib in this company, ” which the parties interpret as DeMatteo threatening to quit if plaintiff did not perform the task. After DeMatteo left the meeting, Klotz told plaintiff again that he had to grease the stacker. Alkhawaldeh again refused and returned to his work. Id. at pp. 41, 102-03.
On September 29, 2011, Klotz told plaintiff that he was giving plaintiff one more chance and that he must grease the stacker. Alkhawaldeh refused, stating that it was not his responsibility and that he was afraid to do it. Klotz then fired him and gave him a written notice of termination, which plaintiff refused to sign. Id. at p. 103; Defendant’s Exh. 4, continuation of plaintiff’s deposition, at p. 18.
Nairn’s Disciplinary Action notice dated September 28, 2011 and its Separation Notice dated September 29, 2011 both state that Alkhawaldeh was fired because of his failure to perform job tasks as agreed to on July 5, 2011. Defendant’s Exh. 5, Separation Notice; Plaintiff’s Exh. 11, Disciplinary Action. The Disciplinary Action states that plaintiff was given a write-up concerning his job performance on July 5, 2011. Pavlovich avers in his affidavit that plaintiff was terminated based on his recent job performance and his refusal to grease the stackers, which Pavlovich states was a required part of plaintiff’s job. Defendant’s Exh. 2, Pavlovich affidavit at ¶ 14.
Alkhawaldeh filed his charge of national origin and religious discrimination and retaliation with the EEOC on November 21, 2011. He alleged that the violations had occurred between April 1, 2010 and September 28, 2011. Defendant’s Exh. 3.
A. Plaintiff’s Exhibits 4, 5, 6, 7 and 8
Nairn objects to the admissibility of plaintiff’s Exhibits 4, 5, 6, 7 and 8 submitted in opposition to defendant’s summary judgment motion. Plaintiff’s Exhibit 4 is an Investigative Memorandum dated July 18, 2013, to Keith Hill, the Field Director of the EEOC from Hoyt Baugh, the EEOC investigator who handled plaintiff’s complaint. Record Doc. No. 35-4. Plaintiff’s Exhibits 5, 6 and 7 are Investigative Notes in which Baugh summarizes his interviews of several witnesses. Record Doc. Nos. 35-5 through 35-7. Exhibit 4, Baugh’s Investigative Memorandum, contains verbatim recitations of the same summarized witness statements as in Exhibits 5, 6 and 7. Plaintiff’s Exhibit 8 is the EEOC’s determination letter dated August 29, 2013, in which the EEOC found that the record supported “a reasonable cause finding that the Charging Party was subjected to numerous acts of discrimination, and retaliated against, because of his religion and national origin.” Record Doc. No. 35-8 at p. 1. “Based on the aforementioned evidence, the Commission concludes that there is reason to believe that violations of Title VII have occurred.” The EEOC sought conciliation of plaintiff’s claims against Nairn. Id. at p. 2. All of these documents appear to have been produced from the EEOC pursuant to a Freedom of Information Act request, as they have a FOIA file number at the bottom. Alkhawaldeh seeks to introduce these materials into evidence for the truth of the matters asserted in the witness statements, Baugh’s factual conclusions and the EEOC’s probable cause determination.
Nairn argues that plaintiff’s Exhibits 4, 5, 6 and 7 contain Baugh’s notes of inadmissible hearsay witness statements, which should not be considered. Evidence submitted in opposition to a summary judgment motion must be “admissible in evidence.” Fed.R.Civ.P. 56(c)(4). “Only admissible evidence can be used in opposition to a motion for summary judgment.” Sullivan v. Worley Catastrophe Services, L.L.C., 591 F. App’x 243, 245 n.2 (5th Cir. 2014) (citing Mersch v. City of Dallas, 207 F.3d 732, 734-35 (5th Cir. 2000)).
A witness’s statement “is not competent summary judgment evidence . . . [when] it is not sworn to be true and correct before a public notary or stated to be true and correct under penalty of perjury.” Smith v. Consol. Recreation & Cmty. Ctr., 131 F. App’x 988, 989-90 (5th Cir. 2005). The Investigative Notes do not contain transcripts of the interviews, but are Baugh’s summaries of what the witnesses said. There is no indication in the record that the witnesses whom he interviewed provided either sworn testimony or unsworn statements under penalty of perjury.
The unsworn witness statements contained in plaintiff’s Exhibits 4, 5, 6 and 7 are inadmissible hearsay, unless they fall within an exception to the hearsay rule. Fed.R.Evid. 802. “‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c).
In arguing for the admissibility of these exhibits, Alkhawaldeh relies on the public records exception to the hearsay rule. Rule 803(8) provides that a record or statement of a public office is not excluded by the rule against hearsay in a civil case, regardless of whether the declarant is available as a witness, if “(A) it sets out: . . . (iii) . . . factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.” Fed.R.Evid. 803(8).
Plaintiff has not cited any law that authorizes a fact finder in federal court to consider inadmissible hearsay merely because it is contained in an EEOC investigative report. To the contrary, the Fifth Circuit has held that unsworn statements and an EEOC investigator’s notes of his conversation with a witness that were contained in plaintiff’s EEOC file are inadmissible because they do not meet the requirements of then-Fed. R. Civ. P. 56(e), now Rule 56(c)(4). Cruz v. Aramark Servs., 213 F. App’x 329, 332-33 (5th Cir. 2007) (citing Duplantis v. Shell Offshore Inc., 948 F.2d 187, 191 (5th Cir. 1991)); see also Juneau v. Quality Christmas Tree, Ltd., No. H-13-2535, 2014 WL 3796406, at *3 (S.D. Tex. July 30, 2014) (citing Cruz, 213 F. App’x at 332; McClure v. Mexia I.S.D., 750 F.2d 396, 400 (5th Cir. 1985)) (“The EEOC investigator’s notes are out-of-court statements offered for the truth of the matter asserted, Fed.R.Evid. 801(c), namely that the investigator accurately recorded [witnesses’] initial explanations for plaintiffs’ terminations, ” and are inadmissible hearsay.).
Inadmissible hearsay fails to create a genuine issue of material fact. Yancy v. U.S. Airways, Inc., 469 F. App’x 339, 342 n.1 (5th Cir. 2012) (citing Garcia v. Reeves Cnty., 32 F.3d 200, 204 (5th Cir. 1994)); Roberts v. City of Shreveport, 397 F.3d 287, 295 (5th Cir. 2005). Accordingly, this court has not considered Baugh’s summaries of the hearsay statements of witnesses contained in plaintiff’s Exhibits 4, 5, 6 and 7.
Nairn admits that plaintiff’s Exhibit 8, the EEOC’s determination letter, falls within the hearsay exception for public records, but argues that the letter should not be considered by the court under that same rule because it is untrustworthy, unsupported by competent evidence in the summary judgment record and contradicted by the competent evidence in the summary judgment record. Plaintiff argues that the letter and Baugh’s ...