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Thibodeaux v. Dow Chemical Co.

United States District Court, M.D. Louisiana

May 17, 2018




         Before 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) is GRANTED.

         I. BACKGROUND

         1. Race-Based Hostile Work Environment and Racial Discrimination Claims

         Plaintiff began Ins employment at Dow on August 4. 2014.[1] 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 ¶ 7).

         On 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).

         Later 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[2] 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 ¶ 12).

         Plaintiff 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).

         2. Disability Discrimination Claims

         On June 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).

         Specifically, 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).

         On June 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).

         At this meeting, Plaintiff made allegations that control board operators had been sleeping on the job, [3] 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;[4] 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 ¶ 91-94).

         Nonetheless, 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.[5] (Doc. 23-2 at ¶¶ 60-61).

         During 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.[6] (Id. at ¶¶ 64-70).

         By July 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. (Id.).

         Nonetheless, on that date, July 27, 2015, Dow proceeded with a Medical Review Board ("MRB") procedure to discuss Plaintiffs employment.[7] (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).

         On May 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).

         Plaintiff 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.).


         "The 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).

         After a 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 ...

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