United States District Court, M.D. Louisiana
ERIC W. CAIN
EXXON MOBIL CORPORATION, BATON ROUGE CHEMICAL PLANT
WILDER-DOOMES MAG. JUDGE
RULING AND ORDER
W. deGRAVELLES JUDGE
matter comes before the Court on Defendant Exxon Mobil
“Exxon”) Motion for Summary Judgment.
(Doc. 14). Plaintiff, Eric W. Cain (“Plaintiff”
or “Cain”), opposed the motion. (Doc. 18).
Defendant replied, (Doc. 23), and Plaintiff submitted a
sur-reply. (Doc. 28). Also before the Court is
Defendant's Motion to Strike Plaintiff's Summary
Judgment Evidence. (Doc. 24). Plaintiff opposed the motion.
(Doc. 29). Defendant replied. (Doc. 30). The Court has
carefully considered the law, the facts in the record, and
the arguments and submissions of the parties and is prepared
to rule. For the following reasons, Defendant's motion
for summary judgement is denied. Defendant's motion to
strike is granted in part and denied in part.
Relevant Factual and Procedural Background
Plaintiff served active duty in the United States Marine
Corps from December of 1986 until January of 2007. (Doc. 1-2,
¶ 3). Around December of 2014, Plaintiff began working
with Capitol Ultrasonics, LLC at Exxon as a Non-Destructive
Testing Technician. (Doc. 1-2, ¶ 5). In May of 2015,
Plaintiff decided that he wanted to work for Exxon as an
Assistant Operator. (Doc. 1-2, ¶ 6). When he applied for
the position, Plaintiff disclosed his military experience.
(Doc. 14-2, p. 21, ll. 17-23).
order to work as an Assistant Operator, Plaintiff was
required to complete the Basic Operator's Course or
“Basic Operator Training” (“BOT”).
(Doc. 1-2, ¶ 7; Doc. 14-3, ¶ 7). After completing
the course, Plaintiff was assigned to a unit and a trainer.
(Doc. 1-2, ¶ 8). On or about July 13, 2015, Plaintiff
was assigned to the Oxidation Unit and to his trainer, David
Mobile. (Doc. 1-2, ¶ 9). Plaintiff claims that once it
was disclosed that he served in the United States Armed
Services, Mobile began accusing Plaintiff of suffering from
Post-Traumatic Stress Disorder (“PTSD”). (Doc.
1-2, ¶ 12). Plaintiff avers that “Mobile
singlehandedly initiated and circulated the unsupported
allegation that [he] suffered from PTSD, a psychiatric
condition, throughout the workplace”. (Doc. 1-2, ¶
13). Mobile allegedly told co-workers that Plaintiff
“may freak out on the unit at any time”. (Doc.
1-2, ¶ 14). Additionally, Mobile allegedly recorded his
thoughts and concerns about Plaintiff in notes, including
concerns about Plaintiff's ability to perform work tasks
and that Plaintiff's PTSD “drew a red flag”
for Mobile. (Doc. 1-2, ¶ 15). Due to these concerns and
his military service, Plaintiff claims that he was subjected
to a “pattern of disparate and discriminatory treatment
that resulted in [his] wrongful termination”. (Doc.
1-2, ¶ 16).
contends that over the course of his training, Plaintiff was
evaluated. Mobile observed that Plaintiff had difficulty
retaining information. (Doc. 14-6, pp. 50-51). Plaintiff
jokingly attributed his memory issues to “the medicine
that [he] took in the war”. (Doc. 14-2, p. 51).
Defendant claims that Plaintiff attributed the medicine to
PTSD, (Doc. 14-6, pp. 59-60); Plaintiff admits that he made a
joke about his memory, but avers that he never mentioned
PTSD. (Doc. 14-2, pp. 51-53). Due to this, Mobile was
concerned, and he admits that he documented the events and
comments and that he reported this to his supervisors. (Doc.
14-6, pp. 56-61).
further details that Defendant failed to provide him with an
adequate training, leaving him alone for four weeks to
“train himself”. (Doc. 1-2, ¶¶ 17-22).
Plaintiff alleges that Mobile then evaluated him and reported
that Plaintiff was behind in his training “due to his
past military service and perceived PTSD”. (Doc. 1-2,
¶ 29). Plaintiff was re-assigned to a new trainer who
trained him for six days. (Doc. 1-2, ¶ 32). Plaintiff
alleges that his new trainer observed and reported that
Plaintiff had the requisite knowledge to do his job and that
he had been treated differently. (Doc. 1-2, ¶ 33). A
supervisor allegedly noted that Plaintiff was behind the
training schedule, that he would be a “burden”,
and that he was a “major safety risk”. (Doc. 1-2,
¶ 34). Plaintiff was terminated on December 5, 2015.
(Doc. 1-2, ¶ 35). Defendant denies that Plaintiff's
PTSD, real or perceived, and/or his military service played a
role in his termination. (Doc. 14-1, pp. 6, 9, and 10).
alleges that a post-termination investigation revealed that
Mobile “doctored” his notes regarding
Plaintiff's perceived PTSD. (Doc. 1-2, ¶ 36).
filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on March 31,
2016, and the EEOC mailed a “Right to Sue” letter
on April 27, 2017, which was received on May 1, 2017. (Doc.
1-2, ¶ 37).
originally filed suit in the Nineteenth Judicial District
Court, Parish of East Baton Rouge, State of Louisiana, and
the suit was removed to the United States District Court for
the Middle District of Louisiana on November 2, 2017. (Doc.
1). Plaintiff originally plead causes of action pursuant to
the Louisiana Employment Discrimination Law based on age and
disability discrimination, (Doc. 1-2, ¶ 41), and the
Louisiana Military Service Relief Act because Plaintiff's
past military service and perceived PTSD were motivating
factors behind his termination, (Doc. 1-2, ¶ 42).
filed a motion to dismiss pursuant to Rule 12 on December 11,
2017. (Doc. 5). The Court ruled on March 27, 2018, that
Plaintiff's claims pursuant to state law were dismissed;
however, the Court found that Plaintiff had stated a claim
pursuant to the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”). (Doc. 12).
Defendant now brings the instant motion for summary judgment
under Rule 56, seeking to dismiss Plaintiff's claims
pursuant to USERRA. (Doc. 14).
Motion for Summary Judgment
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). If the mover bears his burden of showing
that there is no genuine issue of fact, “its opponent
must do more than simply show that there is some metaphysical
doubt as to the material facts … [T]he nonmoving party
must come forward with ‘specific facts showing that
there is a genuine issue for trial.'” See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)
(internal citations omitted). The non-mover's burden is
not satisfied by “conclusory allegations, by
unsubstantiated assertions, or by only a
‘scintilla' of evidence.” Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994)(citations and internal quotations omitted). The party
opposing the motion for summary judgment may not sit on his
hands, complacently relying on the pleadings. Weyant v.
Acceptance Ins. Co., 917 F.2d 209 (5th Cir. 1990).
“Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.'”
Matsushita Elec. Indus. Co., 475 U.S. at 587.
General allegations that fail to reveal detailed and precise
facts will not prevent the award of summary judgment.
Walton v. Alexander, 20 F.3d 1350, 1352 (5th Cir.
In resolving the motion, the court may not undertake to
evaluate the credibility of the witnesses, weigh the
evidence, or resolve factual disputes; so long as the
evidence in the record is such that a reasonable jury drawing
all inferences in favor of the nonmoving party could arrive
at a verdict in that party's favor, the court must deny
Int'l Shortstop, Inc. v. Rally's Inc., 939
F.2d 1257, 1263 (5th Cir. 1991).
Motion to Strike
Motions to strike are generally disfavored and infrequently
granted due to the fact that they are a drastic remedy and
are often used as a dilatory tactic. FDIC v. Niblo,
F.Supp. 441, 449 (N.D. Tex. 1993)(citing Augustus v. Bd.
of Pub. Instr. of Escambia County, Florida, 306 F.2d
862, 868 (5th Cir. 1962)). See also Kaiser Aluminum &
Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677
F.2d 1045 (5th Cir. 1982). Motions to strike “should
only be granted when the pleading to be stricken has no
possible relation to the controversy.”
Augustus, 306 F.2d at 868 (quoting Brown &
Williamson Tobacco Corp. v. United States, 201 F.2d 819,
822 (6th Cir. 1953)). “A motion to strike should be
denied if there is any disputed question of fact.”
Joe Hand Promotions, Inc. v. HRA Zone, L.L.C., 2013
WL 5707813 at 2(W.D. Tex. 2013) (citing Augustus,
306 F.2d at 868). Finally, when considering a Rule 12(f)
motion, the court has “ample” discretion. In
re Beef Indus. Antitrust Litig., 600 F.2d 1148, 1168
(5th Cir. 1979).
Defendant's Memorandum in Support (Doc. 14-1)
argues that Plaintiff “lacks any evidence” that
his military service was a motivating factor in
Defendant's decision to terminate his employment. (Doc.
14-1, p. 13). Defendant points to Plaintiff's testimony,
arguing that Plaintiff “admits he was not treated
differently by Mobile because he served in the
military”. (Id. (citing Doc. 14-2, pp.
Q. Do you have any reason to believe that the fact that you
had served in the United States Marine Corps had anything to
do with the way in which David Mobile conducted your
A. I do.
Q. Okay. What?
A. I believe, at that point, David Mobile had made up in his
mind that he didn't want me in the unit.
Q. Because of your military service?
Q. Okay. So what leads you to believe that David Mobile
didn't want you in the unit because of your military
A. Because he was making notes about PTSD and had made
comments about PTSD.
Q. Okay. So I want to make a distinction here. Did you think
that David Mobile was concerned about your PTSD being a
problem for you being employed with ExxonMobil?
Q. Okay. Did you think that David Mobile was concerned about
the fact that you had served in the United States military
being a problem with your employment at ExxonMobil?
(Doc. 14-2, pp. 72-73, l. 3).
also argues that Plaintiff admitted that Mobile did not have
any concerns about his military service, (Doc. 14-1, p. 13
(citing Doc. 14-2, p. 43)); that Mobile did not make comments
about Plaintiff serving in the military, (id.
(citing Doc. 14-2, p. 57)); that there are no allegations
that Kenneth Gregorie, a supervisor in Plaintiff's unit,
made negative comments about Plaintiff's military service
or that it played a role in Plaintiff's evaluations,
(id. (citing Doc. 14-3, ¶ 30)); and that there
are no allegations that Daniel Underwood, a supervisor in
Plaintiff's unit, made negative comments ...