United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON CHIEF JUDGE
the Court is the Motion for Summary Judgment (Doc. 23) by
Defendant, the Dow Chemical Company ("Dow").
Plaintiff filed an Opposition. (Doc, 32). Defendant then
filed a Reply. (Doc. 37). The Court has jurisdiction under 28
U.S.C. § 1332. Oral argument is not necessary. For the
following reasons, the Motion for Summary Judgment (Doc. 23)
Race-Based Hostile Work Environment and Racial Discrimination
began Ins employment at Dow on August 4. 2014. us a Process
Technician (Operator Trainee) in the Chlorine I unit
("unit"). (Doc. 23-2 at ¶ 8). Dow is a
manufacturer of various chemicals, plastics, and agricultural
products, and operates a plant in Plaquemine, Louisiana.
(Id. at ¶ 1). Plaintiffs racial harassment and
race-based hostile work environment claims are based on
various incidents involving different actors. (Id.
at ¶ 103). Plaintiff reported to management multiple
instances of harassment and regular bulling by his white
counterparts beginning in approximately October 2014. (Doc.
32-2 at ¶ 24; Doc. 23-2 at ¶ 100). According to
Plaintiff, at the beginning of his employment, Keith Long,
Dow's Activity Coordinator, explained to Plaintiff that
his "job was given to him while white guys had to work
for their jobs." (Doc. 32-2 at ¶ 5). During this
interaction, Long leaned into Plaintiffs personal space to
intimidate him; Plaintiff was forced to "back up."
(Id. at ¶ 6). Plaintiff reported this incident
to Karin Cook, the Operations Leader ("Cook"), who
was allegedly "dismissive." (Id. at ¶
October 3, 2014, Plaintiff left his unit without notifying
the Board Operator to take a personal phone call; he was
later found in a different unit talking on his cell phone.
(Doc. 23-2 at ¶¶ 14-15). On October 6, 2014,
Plaintiff was written-up for his violation of the
accountability policy, which provided that "an employee
is required to notify the immediate response leader
("IRL"), a Board Operator, in the event he needs to
leave the Chlorine I unit." (Id. at ¶ 12).
Thereafter, Plaintiff participated in a counseling session
with Dean Cavalier, the Training Coordinator
("Cavalier"), to review the policy. (Id.
at ¶ 18). The policy further included the requirement
that an employee sign in and out via the magnetic board.
(Id. at ¶ 19). The next day, although Plaintiff
was "gone for the day, " his magnetic employee pin
was in the "in" position. (Id. at ¶
20). According to Plaintiff, another employee moved his
employee pin from the "out" to the "in"
position. (Doc. 32-2 at ¶ 16).
in Plaintiffs employment, Cook spoke about a former employee
that "wore a hoodie and sagged his pants" and told
Plaintiff to remove his hoodie, while white operators were
permitted to wear baseball hats. (Doc. 32-2 at ¶¶
8-9). Additionally, Plaintiff was required to take his
written tests inside the training coordinator's
office, while white operators were allowed to take tests in
the library or in an area across from that office.
(Id. at ¶ 10). Moreover, white males were
allegedly given the exact questions to pass the exam for the
operators training program. (Id. at ¶ 11).
Furthermore, Plaintiffs bathroom breaks were regularly
monitored while other employees could leave for regular
breaks with no supervision or approval. (Id. at
reported his complaints of discrimination to Keith Landry,
his Shift Captain, who reported said concerns to Cook.
(Id. at ¶¶ 20-22). In response, Cook spoke
with other black operators to investigate Plaintiffs concerns
of racial discrimination, and following the June 30, 2015
complaints, which are addressed infra, she and Steve Ledoux,
the Production Leader of the unit ("Ledoux"),
reported Plaintiffs allegations to Human Resources via email
for further investigation. (Doc. 23-9 at p. 72).
Disability Discrimination Claims
30, 2015, Plaintiff went on a paid leave of absence due to a
medical condition, "Adjustment Disorder with Depressed
Mood and Anxiety" ("Adjustment Disorder"), as
diagnosed by Plaintiffs licensed social worker. (Doc. 23-2 at
¶ 48; Doc. 23-12 at p. G).
in her June 29, 2015 report, the social worker confirmed that
Plaintiff had been diagnosed with Adjustment Disorder
''due to job-related stress because of undue
pressures and issues that occur on a daily basis that seemed
to be unavoidable." (Doc. 23-6 at p. 136). The social
worker noted that Plaintiff exhibited the following symptoms:
(1) extreme anxiety as it relates to concentration; (2)
extreme anxiety as it relates to job difficulties; (3)
difficulty completing normal daily tasks; (4) feelings of
hopelessness, worthlessness, discomfort, and loss of control;
(5) extreme fatigue and excessive physical pain; (6) extreme
tension and stress; (7) nervousness and apprehension; (8)
fear and racing thoughts; and (9) extreme irritability and
emotional distress. (Id.). Furthermore, the social
worker referred Plaintiff for a psychiatric evaluation to
determine need for medication; and she recommended a leave of
absence from work for at least three weeks with continued
individual weekly therapy sessions, as well as a possible
transfer to a less stressful environment within Dow.
(Id. at pp. 136-37).
30, 2015, during a meeting with Cook, Plaintiff made
allegations of racial harassment and discrimination at the
facility; questioned numerous administrative actions taken by
Cook, including disciplinary actions; and ultimately asked to
be transferred to another unit. (Doc. 23-6 at pp. 138-39).
Nonetheless, Plaintiff was informed that, unless medically
necessary, he would be unable to transfer due to his
performance issues. (Doc. 23-2 at ¶ 51). To further
address Plaintiffs concerns, Cook enlisted the assistance of
Ledoux to meet with Plaintiff on the same day. (Id.
at ¶ 54).
meeting, Plaintiff made allegations that control board
operators had been sleeping on the job,  he restated his
complaints and concerns regarding racial harassment and
discrimination, and again requested a transfer. (Doc. 32-1 at
¶ 55). Following this meeting, Ledoux sent Plaintiff
home and deactivated his gate badge; and Ledoux did not speak to
any operators about the complaints, and he did not recommend
any investigation into the allegations. (Doc. 32-2 at ¶
in light of the report from Plaintiffs social worker,
Plaintiff was directed to Human Resources and Health Services
("Health Services"), Dow's medical department.
(Doc. 23-2 at ¶ 56). Plaintiff met with Nathan Britt,
the Nurse Practitioner, and conveyed that he was feeling
depressed and anxious, that he was subjected to
discrimination and a racist environment, and that he needed
to be transferred to another unit. (Id. at
¶¶ 57-58; Doc. 23-6 at p. 141). After a review of
the social worker's report, Plaintiff was placed on paid
medical leave for at least three weeks, and/or until
medically cleared, which leave would have allegedly ended on
or after July 21, 2015. (Doc. 23-2 at ¶¶ 60-61).
his medical leave, Plaintiff was expected to follow-up with
Dow's Health Services regarding his health status, and to
comply with the recommendations of his health care providers.
(Id. at ¶ 63). According to Dow, Plaintiff did
not contact Britt for a follow-up appointment scheduled for
July 14, 2015, he did not undergo a psychiatric evaluation to
determine the need for medication as recommended, and
according to the social worker, Plaintiff attended therapy
sessions-all before and after (not during) the June 30 to
July 21 medical leave period-not including unspecified phone
calls. (Id. at ¶¶ 64-70).
21, 2015, Dow had not received medical documentation from
Plaintiffs medical provider regarding Plaintiffs ability to
return to work or need for additional medical leave.
(Id. at ¶ 72). On July 22, 2015, during a
follow-up appointment with Britt, Plaintiff was informed that
Health Services would need medical documentation to validate
his time off and that a Health Certification Form
("Form") would be emailed to him to be completed by
his health care provider to further validate his need to be
off at that time. (Doc. 23-6 at p. 143). On July 23, 2015,
Britt emailed Plaintiff the Health Certification Form; Britt
did not provide any other information. (Id. at p.
144). On July 27, 2015, via email, Plaintiff acknowledged
receipt of same and provided that he emailed the Form to his
social worker and was waiting for her response.
on that date, July 27, 2015, Dow proceeded with a Medical
Review Board ("MRB") procedure to discuss
Plaintiffs employment. (Doc. 23-2 at ¶¶ 77-78). At that
time, Dow still did not possess the required documents to
validate Plaintiffs extension of paid medical leave beyond
July 21, 2015. (Id. at ¶ 80). On July 27,
Dow's MRB decided to terminate Plaintiffs employment due
to his failure to comply with the requirements of Health
Services; a letter was mailed to Plaintiff the same day.
(Id. at ¶ 81; Doc. 23-6 at p. 147). Britt did
not notify Human Resources of Plaintiffs July 27 email, which
Dow contends would not have changed the termination decision.
(Doc. 23-2 at ¶ 85).
4, 2016, Plaintiff submitted an Intake Questionnaire with the
Equal Employment Opportunity Commission ("EEOC").
and on June 9, 2016, Plaintiff submitted a Charge of
Discrimination with the EEOC alleging that he was subjected
to discrimination due to his race (African American) and
disability (Adjustment Disorder). (Doc. 23-6 at pp. 148-52).
filed his lawsuit on July 22, 2016 in state court, which was
removed to federal court on August 26, 2016. (Doc. 1). In his
amended complaint, Plaintiff asserts claims for racial
discrimination, hostile work environment, and disability
discrimination under Title VII of the Civil Rights Act, 42
U.S.C. § 2000e ("Title VH"); the Americans
with Disabilities Act, 42 U.S.C. § 12101
("ADA"); the Louisiana Employment Discrimination
Law, La. Rev. Stat. 23:301 ("LEDL"); as well as
whistleblower retaliation pursuant to the Louisiana
Environmental Whistleblower Statute, La. Rev. Stat. 30:2027
("LEWA"). (Doc. 10). Plaintiff asserts an
additional claim for tort damages pursuant to Louisiana Civil
Code Article 2315. (Id.).
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). In determining whether the movant is
entitled to summary judgment, the court views the facts in
the light most favorable to the nonmovant and draws all
reasonable inferences in the nonmovant's favor.
Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528,
533 (5th Cir. 1997).
proper motion for summary judgment is made, the nonmovant
"must set forth specific facts showing there is a
genuine issue for trial." Anderson v. Liberty Lobby,
Inc.,939 U.S. 242, 250 (1986) (internal citations
omitted). At that moment, the court does not evaluate the
credibility of witnesses, weigh the evidence, or resolve
factual disputes. Int'l Shortstop, Inc. v.
Rally's, Inc.,939 F.2d 1257, 1263 (5th Cir. 1991),
cert, denied,502 U.S. 1059 (1992). However, if
"the evidence in the record is such that a reasonable
jury, drawing all inferences in favor of the ...