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Whitfield v. Wood Group PSN, Inc.

United States District Court, E.D. Louisiana

September 5, 2019




         Plaintiff, 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.

         On May 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.

         Whitfield 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.

         On July 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.

         On July 11, 2019, plaintiff filed a Motion for Issuance of Subpoenas. Record Doc. No. 45. Defendant filed a timely opposition. Record Doc. No. 48.

         Having 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.


         Plaintiff's 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.

         Plaintiff's 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.

         Where - 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).

         Plaintiff 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.

         Rule 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)).

         However, 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.


         A. Standards of Review

         Summary 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.

         A 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)).

         After 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.

         B. The Undisputed Material Facts

         The 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.

         When 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. Id.

         A 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.

         Whitfield, 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.

         Bradley 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.

         Brandon 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. ...

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