United States District Court, E.D. Louisiana
ANDY C. OLMEDA
CAMERON INTERNATIONAL CORPORATION, ET AL
Andy C Olmeda, Plaintiff: Glenn Charles McGovern, LEAD
ATTORNEY, Glenn C. McGovern, Attorney at Law, Metairie, LA.
Cameron International Corporation, Defendant: Drew B. Tipton,
PRO HAC VICE, Baker & Hostetler (Houston), Houston, TX.
PMG, Inc., a/k/a doing business as Personal Management Group,
doing business as PMG, Defendant: Sidney Jay Hardy, LEAD
ATTORNEY, McCranie, Sistrunk (New Orleans), New Orleans, LA;
Bradley D. Hauswirth, PRO HAC VICE, Wagner, Falconer & Judd,
Ltd., Minneapolis, MN.
Perez, Defendant, Pro se, Morgan City, LA.
Scott Carrington, Defendant: Preston Lee Hayes, LEAD
ATTORNEY, Matthew Arthur Sherman, Chehardy, Sherman, Ellis,
Murray, Recile, Griffith, Stakelum& Hayes, Metairie, LA.
L. C. FELDMAN, UNITED STATES DISTRICT JUDGE.
the Court are four motions: (1) Cameron International
Corporation's motion for summary judgment; (2) Cameron
International Corporation's objections and motion to
strike plaintiff's summary judgment evidence; (3)
Personnel Management Group, Inc.'s motion for summary
judgment; and (4) Personnel Management Group, Inc.'s
objections and motion to strike plaintiff's summary
judgment evidence. For the reasons that follow, the motions
to strike are GRANTED in part and DENIED in part and the
motions for summary judgment are GRANTED.
employment discrimination lawsuit arises from an
off-premises, off-duty drive-by shooting incident on Highway
90 around Morgan City, Louisiana. Hours after leaving work,
one drunk employee, Scott Carrington, was being driven by
another drunk employee, Billy Perez; they had decided to
scare a co-worker, Andy Olmeda, by firing a shotgun in the
vicinity of his moving vehicle. That they did. After driving
about 30 miles, Perez and Carrington pulled up behind and
fired a shotgun at Olmeda's truck as they all drove
northbound up the highway.
Management Group, Inc., a Bloomington, Minnesota company,
recruits and deploys temporary skilled manufacturing laborers
and provides labor solutions to manufacturing companies in
the United States. For companies facing labor shortages,
peak season, production backlog, or other labor crises, PMG
provides skilled temporary replacement labor. PMG recruits do
part-time contract work and have no guarantee of employment.
PMG supplies employees to Cameron International Corporation
on an as-needed basis.
C. Olmeda is half-white and half-Hispanic. Olmeda, a PMG
temporary contract worker, began working at Cameron as a
machinist at its facility in Berwick, Louisiana in May
2013. Olmeda was placed at Cameron by PMG
recruiter Joe Coombs. PMG reported Olmeda's race as
" white" to Cameron when providing employee
information. Olmeda admits that he may have told PMG that he
machinist, Olmeda made parts for offshore and onshore
drilling; he worked on blow-out preventers, valve bodies,
couplings, and generally anything that was associated with a
valve. During the workweek, PMG provided Olmeda with a hotel
room in Morgan City, five miles from Cameron's Berwick
facility. Olmeda worked the night, or second, shift with
15-20 other workers; his regularly scheduled hours were from
4:00 p.m. to 4:00 a.m. Cameron held safety meetings at the
start of each shift every day. After those meetings, Olmeda
received his tasks for the evening and went to his machine in
the shop, which is a large warehouse. Cameron's Angelo
Cardinale was in charge of second shift. Cardinale reported
to Melvin Burger, the senior production
does not complain of any specific problems between him and
his co-workers from May through early September 2013; at
least none that he reported. But in the days leading
up to the shooting on September 14, 2013, Olmeda submits that
things happened to stir up hostility between him and other
workers at Cameron. After a safety meeting on September 9,
2013, Olmeda announced to his co-workers that they should be
ashamed of themselves for having Cardinale clean up after
them. Construing this as obsequiousness, the next day some of
Olmeda's co-workers (Scott Carrington, Trent Basas, and
Thomas Bragg) yelled for hours at Olmeda, calling him "
snorkel." Olmeda believes that " snorkel"
meant that he had his " head so far up [Cardinale's]
ass that [he] needed a snorkel to take a breath." Olmeda
believes that Scott Carrington (then an apprentice at
Cameron) came up with the nickname " snorkel."
Olmeda understood this to be typical shop talk, guys on the
floor giving each other a hard time.
next day, Wednesday, September 11, 2013, another employee
complained to Cardinale at the safety meeting that people had
been yelling " snorkel" the night before. This
being the first he had heard of it, Cardinale spoke with
Olmeda, and then he informed Burger. Burger spoke to Olmeda,
who said that it was Bragg who was the instigator. Burger
instructed Bragg to stop and to apologize to Olmeda. Bragg
apologized to Olmeda, who put the incident behind him. Burger
followed up with Olmeda the next day to confirm Bragg had
apologized. Olmeda never complained to Cardinale
same day, some of the second shift employees lined up to
purchase boots from a vender. Olmeda and Scott Carrington
exchanged profanities. According to Carrington, Olmeda
bragged about owning luxury cars and a multi-million dollar
house. Annoyed, Scott Carrington called him a " f--king
liar."  Olmeda says that Carrington was
walking with Billy Perez when he (Carrington) called
Olmeda " f--king dumba-- mother f--ker" or he may
have " told me to get the fuck out of the way, fucking
Mexican or something like that." Olmeda told Carrington
" f--k you" and gestured with his middle finger. At
the truck on September 11 " was the first time
[Carrington] made a racial comment" to Olmeda.
next day, on Thursday, September 12, 2013, Carrington shouted
" Hey you dumb mother f--ker." Olmeda told
Cardinale, who called Carrington into his office. Carrington
then walked up to Olmeda at his machine and said the same
thing. Olmeda responded:
Look Scott, you must be stupid or something. Don't you
realize that this is the work place and I could bring
harassment charges up against you, which you probably would
lose your job, then I would sue you in civil court and then
I'd be the one laughing because you're a moron?
exchange escalated: Carrington said " Oh so that is how
it's going to be," to which Olmeda responded, "
No don't you see you're the one who is doing it, not
me, I'm just there to [make] sure you have enough
rope." The exchange culminated (Olmeda submits) into a
threat by Carrington. Olmeda reported the threat to
Cardinale. Cardinale agreed to email Burger and then sent
Olmeda home around midnight that night because Olmeda was
angry and needed to cool off. Bragg called Olmeda at his
hotel room, telling him not to make " harassment
reported to work at 4:00 p.m. on Friday, September 13, 2013.
Carrington and Perez left work four hours into second shift,
around 8:00 p.m. Sometime later, Perez picked up Carrington
in Morgan City. Accompanied by another co-worker named Trent
Basas, they first went to a restaurant and bar called Twin
Peaks, where they ate and drank beer and liquor. Then they
went to a pool hall in Houma, where they continued to drink
alcohol over the next few hours. They got very intoxicated.
On the way back to Morgan City, they dropped off Trent. It
was during this time of " heav[y] intoxict[ion]"
that Perez and Carrington decided that they would find Olmeda
and fire a shotgun near his truck to frighten him. They went
to Carrington's house, where Carrington got his shotgun
and, at some point, Carrington loaded it. Although "
hazy" from drinking, the plan was to find and follow
Olmeda and " then do something to just scare him."
When Perez blinked the high beams on his truck, that was the
signal for Carrington to shoot, not at Olmeda's vehicle,
but toward the woods, as he drove by.
left his shift at the normal time, around 4:00 a.m. on
Saturday morning, September 14. He went to his hotel room,
preparing to leave town to go to his house in Mandeville for
the weekend. Olmeda then met a friend at Wal-Mart in Morgan
City at 5:00 a.m. to pick up a kitten to take with him. He
then filled up his truck with gas and started down Highway 90
toward Mandeville. At some point, Perez and Carrington saw
Olmeda on the road and waited for him and followed him. After
driving about 30 miles on Highway 90, Perez pulled behind
Olmeda and Carrington shot in the vicinity of Olmeda's
truck, according to Carrington only hitting Olmeda's
truck by accident. Olmeda submits that his tire exploded and
that rounds struck his truck.
pulled into a parking lot, where he called Cardinale, who
told him to call the police; he also called his girlfriend
and the police. Olmeda also left a voicemail for Burger; when
Burger heard the voicemail, he called his supervisor (Duane
Carriere), PMG's human resources manager (Kelly Lambert),
and the PMG liaison, Erich Heitman. Olmeda called PMG's
Joe Coombs. Coombs told Olmeda to go back to the Berwick
facility to get his tools. Olmeda refused, saying "
I'm the victim . . . I'm going to stay home[; ] I
just got fired upon." Coombs sent an email to others at
PMG regarding the incident, advising that he had "
explained [to Andy] given this highly dramatic and chaotic
nature of this incident, be prepared for this assignment
ending, if for no other reason than his safety may not be
assured while away from work." PMG submitted a
replacement for Olmeda's position. Cameron suspended
Carrington and Perez pending an investigation; Cameron
considered the incident to be a criminal matter to be handled
by the police department.
Cameron learned of the shooting, Burger talked with workers
in the second shift as they reported to work on the day of
the incident. Bragg prepared a written statement about the
argument that occurred between Olmeda and Carrington the day
before the shooting; Bragg states:
On 9-12-13, I was approached by Andy Olmeda and told about a
confrontation between himself and Scott Carrington. Andy told
me that Scott had approached Andy's area to get some
holding clamps from a cabinet. According to Andy, Scott had
called him a dumb shit. Andy then told Scott that he should
shut the f__ up or that he (Andy) would own Scott's
truck, his house, everything, and that Scott would be working
for Andy for the rest of his life. And that Scott would not
have a job anymore. I do not know what Scott's response
was to Andy, other than when Scott came to my machine and
told me what happened. All Scott said about it was that Andy
could get a brick thru his windshield. At no time did Scott
threaten to kill or harm Andy.
Blake Tabor of the Terrebonne Parish Police Department
investigated. Detective Tabor asked Olmeda to submit a
detailed narrative of the events leading up to and including
the shooting, which Olmeda did a few days
later. Nowhere in the statement does Olmeda
mention anything about race or any racial comments made to
him. During the course of the interview and investigation,
Olmeda never mentioned that race or ethnicity played any role
in his interactions with Carrington and Perez. The
investigation report lists Olmeda as " white" and
his ethnicity as " non-Hispanic."
Monday, September 16, 2013 the next workday after the
shooting, Cameron was notified by law enforcement that Perez
and Carrington admitted firing a weapon in the vicinity of
Olmeda's vehicle. Cameron immediately terminated Perez
and Carrington. Olmeda never returned to the Cameron
facility; PMG had pulled Olmeda and set up a
replacement. Cameron did not request or suggest
that Olmeda not be allowed to return to work; PMG made that
decision. On September 17, 2013, Burger emailed PMG and
confirmed that Cameron's human resources department
approved replacing Olmeda. More than five months later on
February 25, 2014 Olmeda filed an EEOC charge, asserting that
he was harassed due to national origin. A right to sue letter
was issued on June 11, 2014.
to the shooting on September 14, Olmeda never told PMG or
Cameron that he was getting harassed due to his ethnicity or
race. Olmeda never filed a complaint with PMG or Cameron
complaining about racial slurs, phrases, or discrimination
based on race or ethnicity. Nor did he report to PMG that he
feared for his life or safety, or that someone had threatened
him physically. The first time PMG was aware that Olmeda was
asserting that he was harassed due to race or ethnicity was
when PMG received the EEOC complaint dated February 25, 2014.
February 25, 2014 Mr. Olmeda filed a charge of national
origin discrimination and retaliation with the EEOC; he
alleged that he complained daily to supervisors and human
resources, to no avail, and that, ultimately, Perez and
Carrington followed him and shot at him. He finally writes
" I was fired in retaliation."  The EEOC
issued Olmeda a right to sue letter on June 11, 2014.
August 20, 2014 Olmeda sued Cameron International
Corporation; PMG, Inc. d/b/a a/k/a Personal Management Group
d/b/a PMG; Billy Perez; and Scott Carrington. Seeking
declaratory, injunctive, and monetary relief, Olmeda
initially purported to advance six causes of action, which he
describes in the complaint as:
(1) retaliation due to sexual harassment, in
violation of Title VII and negligent screening, hiring, and
supervising; (2) unlawful discriminatory employment practices
under Title VII and Louisiana state law; (3) lack of policy
for racial harassment, discrimination and retaliation and
violence in the workplace in violation of state law; (4)
assault and battery [and] intentional infliction [of
emotional distress by] Dwight Caton; (5) compensatory and
punitive damages under Title VII are allowed; (6) vicarious
liability against ... Cameron and PMG ... strictly liable as
joint tortfeasors in a common enterprise.
alleges that his employment was terminated the day after the
shooting incident, even though he had never received any
write-ups or negative performance evaluations. Cameron
submits that it did not fire Olmeda, and PMG submits that
Olmeda was not returned to his assignment with Cameron
because, among other reasons, it could not protect him. On
November 5, 2014, the Court granted in part and
denied in part PMG's motion to dismiss; Olmeda's
claims against PMG for workplace harassment and retaliation
survived the motion. Neither defendants Carrington nor Perez
have filed any motions. Cameron and PMG now, separately, seek
summary judgment dismissing Olmeda's claims against them.
They also seek to strike certain evidence submitted by the
Rule of Civil Procedure 56 instructs that summary judgment is
proper if the record discloses no genuine dispute as to any
material fact such that the moving party is entitled to
judgment as a matter of law. No genuine dispute of fact
exists if the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio., 475
U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A
genuine dispute of fact exists only " if the evidence is
such that a reasonable jury could return a verdict for the
non-moving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
Court emphasizes that the mere argued existence of a factual
dispute does not defeat an otherwise properly supported
motion. See id. Therefore, " [i]f the evidence is merely
colorable, or is not significantly probative," summary
judgment is appropriate. Id. at 249-50 (citations
omitted). Summary judgment is also proper if the party
opposing the motion fails to establish an essential element
of his case. See Celotex Corp. v. Catrett, 477 U.S.
317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In this
regard, the non-moving party must do more than simply deny
the allegations raised by the moving party. See Donaghey
v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649
(5th Cir. 1992). Rather, he must come forward with competent
evidence, such as affidavits or depositions, to buttress his
claims. Id. Hearsay evidence and unsworn documents
that cannot be presented in a form that would be admissible
in evidence at trial do not qualify as competent opposing
evidence. Martin v. John W. Stone Oil Distrib.,
Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P.
56(c)(2). " [T]he nonmoving party cannot defeat summary
judgment with conclusory allegations, unsubstantiated
assertions, or only a scintilla of evidence."
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
2007)(internal quotation marks and citation omitted). In
deciding whether a fact issue exists, courts must view the
facts and draw reasonable inferences in the light most
favorable to the nonmoving party. Scott v. Harris,
550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
Although the Court must " resolve factual controversies
in favor of the nonmoving party," it must do so "
only where there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."
Antoine v. First Student, Inc., 713 F.3d 824, 830
(5th Cir. 2013)(internal quotation marks and citation
and PMG seek to confine the scope of the summary judgment
record. First, both point out that Olmeda's separate
statement outlining his contested issue of genuine issues of
material facts fails to comply with this Court's Local
compliance with Local Rule 56.1, Cameron and PMG submitted
separate statements of material facts as to which they
contend there is no genuine issue to be tried. The plaintiff,
however, submits a list of 43 facts that he alleges are
genuinely disputed. This complies, in part, with Local Rule
56.2 (in that plaintiff submitted a statement of material
facts as to which he contends there exists a genuine issue to
be tried). But the plaintiff fails to controvert all material
facts in Cameron's and PMG's statements and, thus,
those facts not controverted are deemed admitted for the
purposes of the pending motions for summary judgment. See
Local Rule 56.2 (" [a]ll material facts set forth in the
statement required to be served by the moving party will be
deemed admitted, for the purposes of the motion, unless
controverted as required by this rule." ).
both PMG and Cameron have filed objections and motions to
strike certain evidence, including (1) the unsworn Thomas
Bragg interview transcript; (2) Andy Olmeda's sworn
affidavit; (3) Laura Hawkins' sworn affidavit; (4) all
photographs; (5) all documents regarding the EEOC complaint;
and (6) all documents submitted without proper foundation or
containing hearsay or other inadmissible statements.
resolving a motion for summary judgment, the Court " may
only consider admissible evidence." Coleman v. Jason
Pharmaceuticals, 540 Fed.Appx. 302, 306 (5th Cir.
2013)(citing Fed.R.Civ.P. 56(c)(2) and Mersch v. City of
Dallas, 207 F.3d 732, 734-35 (5th Cir. 2000)). Rule
56(c)(2) allows a party to " object that the material
cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence."
The Unsworn Bragg Telephone Interview Transcript
plaintiff insists that Bragg's " testimony" is
essential to the issues of whether Cameron supervisors were
aware of " the horrific events" experienced by
Olmeda and as to whether or not such conduct occurred during
working hours. Olmeda urges the Court to deny the motions to
strike this evidence because he is " trying to have him
served for the July 6, 2015 phone/video deposition."
 Insofar as Olmeda submits the
unsigned, unsworn Bragg transcript to show the truth of the
matter asserted by Bragg, it is inherently unreliable and is
inadmissible hearsay (Federal Rule of Evidence 801(c)), for
which plaintiff offers no exception; the plaintiff likewise
fails even to suggest how the material can be presented in a
form that would be admissible in evidence. The Court
strikes the Bragg transcript from the summary judgment record
and disregards it.
and PMG object to Olmeda's post-deposition affidavit and
seek to strike it from the summary judgment record. They
insist that Olmeda's affidavit contradicts his prior
sworn deposition testimony without explanation. Olmeda
counters that his affidavit is admissible and that the Court
cannot disregard it merely because it is self-serving. The
Court agrees that it may not disregard evidence merely
because it is self-serving. However, Olmeda's affidavit
contains statements that contradict his prior deposition
testimony. He likewise ...