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Cassimere v. Fastorq LLC

United States District Court, W.D. Louisiana

March 1, 2017




         Pending before the Court is a Motion for Summary Judgment filed by Fastorq, LLC ("Fastorq"). [rec. doc. 37]. Plaintiff, Leon Cassimere, Jr. (“Cassimere”), has filed Opposition [rec. doc. 44[1], to which Fastorq has filed a Reply [rec. doc. 41].

         For the reasons set forth below, the Motion for Summary Judgment is granted in part.


         Cassimere, an African American male, brought this race discrimination, harassment and retaliation action asserting federal claims under 42 U.S.C. § 2000e-5, Title VII of the Civil Rights Act of 1964 (as amended).[2]

         In his Complaint, Cassimere alleges that during his employment with Fastorq, he was subjected to a discriminatory pay practice in that he received less wages than comparable non-African American employees and was issued disciplinary write-ups following job location complaints, while non-African American employees were not. In his deposition, Cassimere identified Robert Garcia as the comparable white employee who received better pay. Cassimere additionally alleges that Fastorq retaliated against him for filing a complaint with the EEOC. Finally, Cassimere alleges that Fastorq fired him on June 9, 2015 stating that his position was being eliminated due to a reduction in work force, when in fact, he was actually replaced by a white employee. In his deposition, Cassimere identified Mike Jones as the comparable white employee he believes replaced him. Cassimere alleges that he filed a complaint with the EEOC on May 28, 2015. On June 24, 2015, the EEOC rendered a no probable cause determination and issued a right to sue letter. This lawsuit was filed on September 10, 2015.

         Fastorq contends that Cassimere's discriminatory pay practice claim, retaliation for filing an EEOC charge and discriminatory termination based on race claims, as well as Cassimere's un-plead claim that he was not assigned jobs based on his race, have not been administratively exhausted by proper presentation to the EEOC. Fastorq further asserts that Cassimere failed to properly plead numerous instances of discrimination in his Complaint, which are therefore subject to dismissal. Fastorq contends that Cassimere's race discrimination claims fail because he has not established a prima facie case of discrimination, or alternatively, that Cassimere's disciplinary write ups and termination were based solely on legitimate non-discriminatory reasons, namely, his unsatisfactory work performance and a reduction in work force, respectively.

         In opposition, Cassimere argues that he "believes his termination was retaliation against him for filing the charge of discrimination with the EEOC", that he "believes he was discriminated against on his job because of his race" and that "[h]e feels that he was terminated from his job at Fastorq in retaliation for reporting those claims." Cassimere additionally asserts that he is "simply acting on his right to sue “. In support of these arguments, Cassimere submits the same pages from his deposition that were submitted by Fastorq in support of summary judgment and the determination and right to sue letter issued by the EEOC with respect to EEOC charge 1289.

         Summary Judgment Standard

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is mandated when the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Am. Home Assurance Co. v. United Space Alliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004); Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if proof of its existence or nonexistence might affect the outcome of the lawsuit under the applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Minter v. Great American Insurance Co. of New York, 423 F.3d 460, 465 (5th Cir. 2005). A genuine issue of material fact exists if a reasonable jury could render a verdict for the nonmoving party. Thorson v. Epps, 701 F.3d 444, 445 (5th Cir. 2012).

         The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion, and identifying those parts of the record that it believes demonstrate the absence of genuine issue of material fact. Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007). If the moving party carries its initial burden, the burden shifts to the nonmoving party to demonstrate the existence of a genuine issue of a material fact. Id. In such a case, the non-movant may not rest upon the allegations in his pleadings, but rather must go beyond the pleadings and designate specific facts demonstrating that there is a genuine issue for trial. Celotex v. Catrett, 477 U.S. at 325. All facts and justifiable inferences are construed in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).

         If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that there is insufficient proof concerning an essential element of the nonmoving party's claim. Norwegian Bulk Transport A/S v. International Marine Terminals Partnership, 520 F.3d 409, 412 (5th Cir. 2008). The motion should be granted if the non-moving party cannot produce sufficient competent evidence to support an essential element of its claim. Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 197 (5th Cir. 2005). However, metaphysical doubt as to the material facts, conclusory allegations, unsubstantiated assertions and those supported by only a scintilla of evidence are insufficient. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

         In an employment discrimination case, the focus is on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff. Grimes v. Texas Department of Mental Health and Mental Retardation, 102 F.3d 137, 139 (5th Cir. 1996) (and cases cited therein); Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 312 (5th Cir. 1999). As in any case, unsubstantiated assertions and conclusory allegations are not competent summary judgment evidence. Grimes, 102 F.3d at 139; Lawrence, 163 F.3d at 312; Hervey v. Mississippi Dept. of Educ., 404 Fed.Appx. 865, 870 (5th Cir. 2010) citing Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.2002) (“conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden on a motion for summary judgment”); See also Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (an employee's self-serving generalized testimony stating his subjective belief that discrimination occurred is insufficient to support a jury verdict); Tamuno v. KFC USA, Inc., 176 F.3d 480 (5th Cir. 1999) citing Little v. Republic Refining Co., Ltd., 924 F.2d 93, 96 (5th Cir.1991) quoting Elliot v. Group Medical & Surgical Servs., 714 F.2d 556, 567 (5th Cir.1983) (plaintiff's affidavit and deposition in the absence of other admissible evidence insufficient to defeat summary judgment). In response to a motion for summary judgment, it is therefore incumbent upon the non-moving party to present evidence - not just conjecture and speculation - that the defendant retaliated and discriminated against plaintiff on the basis of his race. Grimes, 102 F.3d at 140.

         Undisputed Facts

         Cassimere was hired by Fastorq on December 2, 2010. He was promoted to Supervisor II on September 8, 2014, making $23.00 per hour. At the time of his June 9, 2015 termination Cassimere was a Supervisor II. The reason given for his termination was “reduction in force.” Cassimere received three Employee Warning Reports dated April 17, 2014, May 8, 2014 and a combined report for location complaints on December 18, 2014 and January 27, 2015, respectively. Cassimere provided a written response to each.

         The April 17, 2014 report states that in response to a question posed by the branch manager as to why Cassimere did not show up to help unload a job, Cassimere yelled at the branch manager and the district manager several times, actions considered insubordinate and unprofessional. The corrective action states that Cassimere was advised that yelling at anyone at work would not be tolerated, and that Cassimere should maintain a professional attitude and tone when addressing anyone at work. Cassimere's written response states that both he and the branch manager apologized for their respective behaviors, and that "an understanding had been reached." Cassimere additionally denied that he was asked to come to work that day.

         The May 8, 2014 report states that a customer complained that Cassimere did not know how to perform a "stump test", he had a bad attitude, he did not fill out test charts properly and overcharged on the invoice. As a result, the customer requested that Cassimere not go back to that job location. The corrective action states that Cassimere should provide the highest level of customer service possible when on a customer's location and that a professional attitude should be maintained. He was asked to fill out all test reports completely. Cassimere was also advised that if a rest after completing a job is needed, "please do so", but that rest time should not be charged back to the customer.

         Cassimere's response states that "by refusing to comply with this particular company representative and his toolpusher's demands" he did his "job correctly; as trained; and as mandated by federal and state laws . . . ." Cassimere additionally stated that during his employ with Fastorq no other company representative had said that Cassimere did not know how to do his job and that it was difficult for Cassimere to believe that Fastorq would believe the company representative over him.

         The December 18, 2014 incident states that Cassimere was asked to help the rig hands using hammer wrenches, to which Cassimere stated that the customer did not want the men to "swing a hammer" as that was a safety issue. He additionally stated that "Leon don't swing no hammer" and that this was an "STX problem that our equipment went down not his." When the customer was asked if he asked the men not use hammer wrenches, the customer said he never told the workers that. The customer additionally stated that due to Cassimere's lie and attitude, Cassimere was not welcome back to the job location. The corrective action states that Cassimere was taken off the job and informed that this type of conduct would not be tolerated.

         Cassimere responded that two co-employees assured him that the Fastorq equipment had been QCed, but on location the unit was not functional. Accordingly, Cassimere "approached the BHP company representative to attempt a tactful explanation of our dilemma" suggesting the use of a hammer wrench, to which the company representative "retorted angrily" that he did not "call Fastorq out on my location to use hammer wrenches." Cassimere apologized to the company representative and assured him Fastorq would rectify the situation as fast as possible. According to Cassimere's response, Fastorq was later replaced by a competitor because BHP refused to continue to tolerate equipment failures, not because of anything Cassimere did. Cassimere additionally noted that the two employees tasked with the responsibility to ensure the equipment is ready are "celebrated with promotions while I receive an employee warning." Finally, Cassimere stated that he worked at the BHP location after this incident on January 18, 2015 and January 19, 2015.

         The January 27, 2015 incident states that Cassimere refused to go to a job location for an 8 hour day guarantee, but instead would only go for a 12 hour day guarantee. He later changed his mind. The report states that Cassimere or any other employee "cannot dictate company established guarantees." The corrective action states that Cassimere was taken off the rotation for that job due to his attitude. Cassimere's response was that the branch manager's version of the conversation was different than his and that he would be willing "to take a polygraph test to prove what truly took place." In February 2015, Cassimere filed a complaint with the Human Resources Department alleging race discrimination evidenced by a lack of consistency in disciplinary actions. In support, Cassimere provided the above reports along with his written responses. Elenor Duckens, the Human Resource Compliance Specialist investigated Cassimere's complaint from its receipt on February 23, 2015 through May 14, 2015. Her investigation included review of the four employee warning reports submitted by Cassimere, as well as Cassimere's responses, and the conduct of employee interviews. In her affidavit submitted in support of this motion, Ms. Duckins attests that her investigation revealed no evidence to substantiate Cassimere's complaints in that both African American and non-African American employees were disciplined by Fastorq for violations of company policies. Cassimere was emailed these results on May 20, 2015.

         On May 22, 2015, Teddy A. Blanchard, Jr., former operations manager for Fastorq received email notice from the Fastorq general manager Todd Delahoussaye that a third round of layoffs would occur at Fastorq.[3] In his affidavit submitted in support of this motion, Mr. Blanchard attests that objective criteria were used to determine the employees who would be released in this third round of layoffs.

         On May 28, 2015, Cassimere completed an intake questionnaire in support of his EEOC charge, assigned number 461-2015-01289 ("EEOC charge 1289"), alleging race discrimination and retaliation. In support of his claim Cassimere cited four Caucasians holding the job title of "Tech", who Cassimere believed were treated better than him, that is, who did not receive disciplinary action for drinking alcohol in company vehicles, speeding tickets in a company vehicle and 3rd offense DUI. Based on these instances, Cassimere stated his belief that he was being "targeted for termination based on race." None of the individuals involved in the vehicle offenses were Supervisor IIs as was Cassimere. Rather, ...

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