Olmeda v. Cameron International Corp.

          For Andy C Olmeda, Plaintiff: Glenn Charles McGovern, LEAD ATTORNEY, Glenn C. McGovern, Attorney at Law, Metairie, LA.

         For Cameron International Corporation, Defendant: Drew B. Tipton, PRO HAC VICE, Baker & Hostetler (Houston), Houston, TX.

         For 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.

         Billy Perez, Defendant, Pro se, Morgan City, LA.

         For Scott Carrington, Defendant: Preston Lee Hayes, LEAD ATTORNEY, Matthew Arthur Sherman, Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum& Hayes, Metairie, LA.

         ORDER AND REASONS

         MARTIN L. C. FELDMAN, UNITED STATES DISTRICT JUDGE.

         Before 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.

         Background

         This 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.

         Personnel 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.^[1] 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.^[2]

         Andrew C. Olmeda is half-white and half-Hispanic. Olmeda, a PMG temporary contract worker,^[3] began working at Cameron as a machinist at its facility in Berwick, Louisiana in May 2013.^[4] 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 is white.^[5]

         As a 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 supervisor.^[6]

         Olmeda 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.^[7] 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.

         The 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 again.^[8]

         That 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." ^[9] Olmeda says that Carrington was walking with Billy Perez^[10] 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.

         The 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?

         This 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.^[11] 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 charges."

         Olmeda 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.

         Olmeda 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.

         Olmeda 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.

         When 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.

         Detective 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.^[12] 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.^[13] The investigation report lists Olmeda as " white" and his ethnicity as " non-Hispanic."

         On 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.^[14] Olmeda never returned to the Cameron facility; PMG had pulled Olmeda and set up a replacement.^[15] 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.

         Prior 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.

         On 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." ^[16] The EEOC issued Olmeda a right to sue letter on June 11, 2014.

         On 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^[17] 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.^[18]

         Olmeda 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^[19] 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 plaintiff.

         I.

         A.

         Federal 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 (1986).

         The 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 omitted).

         B.

         Cameron 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 Rules.

         In 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." ).

         Second, 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.

         In 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."

         1. The Unsworn Bragg Telephone Interview Transcript

         The 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." ^[20] 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.^[21] The Court strikes the Bragg transcript from the summary judgment record and disregards it.

         2. Plaintiff's Affidavit

         Cameron 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 ...