United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTIONS
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
Artis Charles Whitfield, brings this employment
discrimination action against his former employer, Wood Group
PSN, Inc. (“Wood Group”), alleging claims of
discriminatory termination, failure to promote and failure to
hire based on his race and age in violation of Title VII, 42
U.S.C. § 2000e et seq., and the Age
Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq. Record Doc. No. 1. This
matter was referred to a United States Magistrate Judge for
all proceedings and entry of judgment in accordance with 28
U.S.C. § 636(c) upon written consent of all parties.
Record Doc. No. 27.
14, 2019, Wood Group filed a Motion for Summary Judgment
supported by affidavits, verified exhibits and an excerpted
transcript of plaintiff's deposition testimony. Record
Doc. No. 39. Whitfield, who has been proceeding pro se since
his counsel was permitted to withdraw, Record Doc. No. 34,
obtained an extension of time both to obtain new counsel and
to respond to the motion. Record Doc. No. 40. The court
orally advised plaintiff during a May 15, 2019 status
conference that his response should include sworn affidavits,
including his own, or other evidentiary materials that set
forth specific facts demonstrating that there is a genuine
issue of material fact for trial in this case. Id.
filed a timely memorandum in opposition to defendant's
summary judgment motion, Record Doc. No. 44, which
incorporates plaintiff's own affidavit and five
affidavits of his former co-workers. Plaintiff submitted no
other evidence. Defendant received leave to file a reply
memorandum. Record Doc. Nos. 50, 52, 53.
11, 2019, Whitfield filed a Motion to Appoint Counsel. Record
Doc. No. 46. Under the court's protocol for appointment
of counsel from its Civil Pro Bono Panel, “Counsel from
the Panel must not be appointed as a matter of course or
ordinary practice, since there is no automatic right to
appointment of counsel in civil cases.” Resolution of
the En Banc Court ¶ (3)(e) (E.D. La. Apr. 22, 2014,
adopted as permanent Oct. 15, 2016). In Title VII cases, the
court must consider three factors: (1) the merits of
plaintiff's discrimination claims; (2) plaintiff's
efforts to secure counsel; and (3) plaintiff's financial
ability to retain counsel. Id.; Gonzalez v.
Carlin, 907 F.2d 573, 580 (5th Cir. 1990). The court
took plaintiff's sworn testimony concerning his efforts
to secure counsel and financial status. Record Doc. No. 47.
Although plaintiff indicated that he engaged in unsuccessful
efforts to secure new counsel, his testimony established that
he is not financially eligible for appointed counsel.
Id. The court deferred ruling on the Motion to
Appoint Counsel, pending review and evaluation of all
briefing on defendant's summary judgment motion, to
consider whether the third relevant factor, the merits of
plaintiff's case, tips the balance and warrants
appointment of counsel. Id.
11, 2019, plaintiff filed a Motion for Issuance of Subpoenas.
Record Doc. No. 45. Defendant filed a timely opposition.
Record Doc. No. 48.
considered the complaint, the record, the submissions of the
parties and the applicable law, IT IS ORDERED that
plaintiff's Motions to Appoint Counsel and for Issuance
of Subpoenas are DENIED and that defendant's Motion for
Summary Judgment is GRANTED, for the following reasons.
Motion to Appoint Counsel is denied. Evaluation of the
briefing submitted by both parties in connection with
defendant's Motion for Summary Judgment indicates that
plaintiff's case lacks merit, for the reasons discussed
below. Thus, balancing of the Gonzalez factors
militates against appointment of counsel.
Motion for Issuance of Subpoenas is also denied. The motion
seeks leave of court to subpoena plaintiff's own
employment records and those of Damian Daigle, Brandon
Godchaux and Bradley Prejean. Record Doc. No. 45. Because
plaintiff's motion was filed more than two months
after both the discovery deadline had passed and
defendant had filed its summary judgment motion, the court
construes the motion as (1) seeking leave to conduct
discovery after expiration of the scheduling order deadline
pursuant to Fed.R.Civ.P. 16(b); and (2) seeking more time
under Fed.R.Civ.P. 56(d) to obtain facts to support his
opposition to the pending summary judgment motion.
as here - the court has entered a scheduling order setting a
deadline, Record Doc. No. 29, the schedule “may be
modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b)(4) (emphasis added).
“In determining whether the movant has met its burden
under Rule 16(b)(4), the court considers four factors: (1)
the party's explanation, (2) the importance of the
requested relief, (3) potential prejudice in granting the
relief, and (4) the availability of a continuance to cure
such prejudice.” Choice Hotels Int'l, Inc. v.
Goldmark Hospitality, LLC, 2014 WL 80722, at *2 (N.D.
Tex. Jan. 9, 2014) (quotation omitted) (citing S&W
Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d
533, 536 (5th Cir. 2003)); accord Borden v. United
States, 537 Fed.Appx. 570, 574 (5th Cir. 2013) (citing
Reliance Ins. Co. v. La. Land & Expl. Co., 110
F.3d 253, 257 (5th Cir. 1997); Geiserman v.
MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)). The good
cause standard applies to discovery deadlines established by
the court, Colonial Freight Sys., Inc. v. Adams &
Reese, L.L.P., 542 Fed.Appx. 142, 145 (5th Cir. 2013);
Paz v. Brush Engineered Materials, Inc., 555 F.3d
383, 390 (5th Cir. 2009), and “require[s] the movant
‘to show that the deadlines cannot reasonably be met
despite the diligence of the party needing the
extension.'” Puig v. Citibank, N.A., 514
Fed.Appx. 483, 487-88 (5th Cir. 2013) (quoting S & W
Enters., 315 F.3d at 535).
provides no persuasive explanation for his delay in seeking
the requested employment records or why he could not meet the
discovery deadline. His “Motion for Opposition of
Summary Judgment” states: “Due to the lack of
diligence on behalf of my previous attorney, documentation
for my case was not submitted.” Record Doc. No. 44 at
p. 1. As noted above, the Fifth Circuit in Puig and
S & W has not accepted lack of
diligence as a good reason for failure to meet deadlines. As
to importance, production of the requested records appears
unimportant because plaintiff's entire personnel file and
portions of Prejean's personnel file relevant to
plaintiff's claims against him have already been
produced to plaintiff in discovery. Record Doc. No. 39-2
at pp. 5-25. Production of Godchaux's records is
unimportant because, as discussed in detail below, Godchaux
is not a Wood Group employee and plaintiff's
failure to promote claim concerning Godchaux is time-barred
and fails on the merits. Daigle's records are unimportant
because plaintiff makes no claims concerning Daigle's
employment status in this matter and, even if he did,
plaintiff had ample time to request these records during the
12 months of discovery provided in this case.
Prejudice to defendant would be substantial because it
already has filed its summary judgment motion and plaintiff
has provided no explanation for how the additional discovery
will create issues of material fact that would preclude
summary judgment in this matter. A continuance would not cure
defendant's substantial prejudice. Plaintiff cannot
establish good cause to conduct discovery after expiration of
the discovery deadline because all four factors weigh against
permitting him to do so.
56(d) provides that, “[i]f a nonmovant shows by
affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify
its opposition, the court may: . . . allow time to obtain
affidavits or declarations or to take discovery.”
(Emphasis added). Whitfield has submitted no
affidavits or declarations to support the requested extension
of time. “Plaintiff's failure to attach such an
affidavit is sufficient grounds to deny [his] motion.”
McDonald v. Kansas City S. Ry., 2017 WL 1709353, at
*4 (E.D. La. May 3, 2017) (citing Sandusky Wellness Ctr.,
LLC v. Medco Health Solutions, Inc., 788 F.3d 218, 226
(6th Cir. 2015); Scotch v. Letsinger, 593 Fed.Appx.
276, 278 (5th Cir. 2014); Leza v. City of Laredo,
496 Fed.Appx. 375, 377-78 (5th Cir. 2012)).
even if the court considered the motion, despite the absence
of any supporting affidavit,
the party filing the motion must demonstrate how additional
discovery will create a genuine issue of material fact. In
particular, the party opposing summary judgment must set
forth a plausible basis for believing that specified
facts, susceptible of collection within a reasonable
time frame, probably exist and indicate how the emergent
facts, if adduced, will influence the outcome of the
pending summary judgment motion. That party must also have
diligently pursued discovery.
Jacked Up, L.L.C. v. Sara Lee Corp., 854 F.3d 797,
816 (5th Cir. 2017) (citations and quotations omitted)
(emphasis added). Whitfield neither specifies what facts he
seeks from the requested records nor explains how those
unspecified facts or additional discovery might influence the
outcome of Wood Group's summary judgment motion. In his
summary judgment opposition, Whitfield relies on facts that
are exclusively within his own knowledge and the knowledge of
former co-workers. Because “it appears that further
discovery will not provide evidence creating a genuine issue
of material fact, ” the court denies plaintiff's
Rule 56(d) motion and proceeds to decide defendant's
motion for summary judgment. Id.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Standards of Review
judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing
Fed.R.Civ.P. 56(c)). “Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which the party will bear
the burden of proof at trial.” Id. A party
moving for summary judgment bears the initial burden of
demonstrating the basis for summary judgment and identifying
those portions of the record, discovery and any affidavits
supporting the conclusion that there is no genuine issue of
material fact. Id. at 323. If the moving party meets
that burden, then the nonmoving party must use evidence
cognizable under Rule 56 to demonstrate the existence of a
genuine issue of material fact. Id. at 324.
genuine issue of material fact exists if a reasonable jury
could return a verdict for the nonmoving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1996). The substantive law identifies which facts are
material. Id. Material facts are not genuinely
disputed when a rational trier of fact could not find for the
nonmoving party upon a review of the record taken as a whole.
See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Equal Emp't
Opportunity Comm'n v. Simbaki, Ltd., 767 F.3d 475,
481 (5th Cir. 2014). “[U]nsubstantiated assertions,
” “conclusory allegations, ” and merely
colorable factual bases are insufficient to defeat a motion
for summary judgment. See Anderson, 477 U.S. at
249-50; Hopper v. Frank, 16 F.3d 92, 97 (5th Cir.
1994). In ruling on a summary judgment motion, a court may
not resolve credibility issues or weigh evidence. See
Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore,
a court must assess the evidence, review the facts, and draw
any appropriate inferences based on the evidence in the light
most favorable to the party opposing summary judgment.
See Tolan v. Cotton, 572 U.S. 650, 656 (2014);
Daniels v. City of Arlington, 246 F.3d 500, 502 (5th
Cir. 2001). Yet, a court only draws reasonable inferences in
favor of the nonmovant “when there is an actual
controversy, that is, when both parties have submitted
evidence of contradictory facts.” Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)
(citing Lujan v. Nat'l Wildlife Fed'n, 497
U.S. 871, 888 (1990)).
the movant demonstrates the absence of a genuine dispute, the
nonmovant must articulate specific facts and point to
supporting, competent evidence that may be presented in a
form admissible at trial. See Lynch Props., Inc. v.
Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir.
1998); Fed.R.Civ.P. 56(c)(1)(A) & (c)(2). Such facts must
create more than “some metaphysical doubt as to the
material facts.” Matsushita, 475 U.S. at 586.
When the nonmovant will bear the burden of proof at trial on
the dispositive issue, the moving party may simply point to
insufficient admissible evidence to establish an essential
element of the nonmovant's claim in order to satisfy its
summary judgment burden. See Celotex, 477 U.S. at
322-25; Fed.R.Civ.P. 56(c)(1)(B). Unless there is a genuine
issue for trial that could support a judgment in favor of the
nonmovant, summary judgment must be granted. See
Little, 37 F.3d at 1075-76.
The Undisputed Material Facts
competent summary judgment evidence establishes the following
material facts, which are accepted as undisputed solely for
purposes of the pending summary judgment motion. Wood Group
is a company that provides operations and maintenance
services to the oil, gas and petrochemical industries. Record
Doc. No. 39-2 at p. 1. As a subcontractor, it provides
personnel to its clients' offshore drilling platforms in
the Gulf of Mexico, including those operated by former client
Energy XXI. Id. at p. 2. Client platforms are often
staffed with personnel employed by multiple subcontractors.
Id. Wood Group has adopted a written company policy
that prohibits discrimination against any employee on the
basis of race, religion, color, nationality ethnicity,
disability, age or any other characteristic protected by law.
Id. at p. 4.
hiring production operators to staff client platforms, Wood
Group conducts assessment tests of applicants and assigns
them to either an A-, B- or C-Operator level, with
A-Operators being the most experienced and bearing the most
responsibility. Id. at p. 2. Lead operators, who are
tasked with directing and supervising the production crew on
the platform, are chosen from the pool of A-Operators.
decision to promote an operator working on a client platform
to a higher level must be approved by the client.
Id. The client has the right to reject or remove
Wood Group personnel from its platform. Id. The
ultimate authority to reject or remove Wood Group personnel
from a client platform lies with the client's
foreman. Id. When a client rejects or removes a Wood
Group employee from a platform, Wood Group's regular
practice is to place that employee on “float” for
30 days, during which the employee is available for other
assignments if they arise. Record Doc. Nos. 39-2 at p. 3;
39-4 at pp. 18-21, 42-43. If another assignment does not
become available within the 30-day period, Wood Group's
regular business practice is to lay off the employee for lack
of work/reduction-in-force. Record Doc. No. 39-2 at p. 3.
a 45-year-old African-American/American-Indian, initially was
hired by Wood Group on January 21, 2011, and assigned to work
as a C-Operator on a platform operated by Wood Group client
Energy XXI. Record Doc. No. 39-4 at p. 74. He was promoted to
B-Operator on April 4, 2011. Id. at pp. 23-25. On
May 3, 2013, plaintiff was involuntarily terminated from Wood
Group after testing positive on a random drug screening.
Record Doc. Nos. 39-2 at p. 12; 39-4 at p. 26. After
plaintiff completed a substance abuse program, Wood Group
re-hired him on July 1, 2014, as a B-Operator and assigned
him to Energy XXI's Main Pass 73A (“MP-73A”)
platform. Record Doc. Nos. 39-2 at p. 6; 39-4 at pp. 27-28.
Damian Daigle, a Wood Group employee, was plaintiff's
lead operator and direct supervisor on MP-73A. Record Doc.
Nos. 39-3 at p. 1; 39-4 at p. 9.
Prejean was another Wood Group production operator on MP-73A.
Prejean was assigned to MP-73A as a C-Operator on March 4,
2013. Record Doc. No. 39-2 at p. 19. He was promoted to
B-Operator on February 16, 2014, and was then promoted to
A-Operator on January 18, 2015. Id. at pp. 15, 17.
Godchaux was another production operator on MP-73A. Wood
Group has no record of employment for Godchaux, but record
evidence indicates that he was employed by Sirius, another
subcontractor. Record Doc. Nos. 39-2 at p. 3; 39-3 at pp. 1,
8. Godchaux was assigned to MP-73A on an unknown date, but at
least before December 26, 2015, and came to the platform as
an A-Operator. Record Doc. No. 39-3 at pp. 1, 8. ...