at 199. " Pl. Plaintiff has failed to produce evidence that Darren Thomas had knowledge of Plaintiff's alleged protected activity on or before April 3, 2009.
See Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006). Luminant company policy instructs employees interested in internal employment opportunities to use Career Power to search and apply for open positions. at 44. Pl. With respect to claim (5), the ultimate issue on summary judgment is whether Carter produced evidence that could support a finding that he would not have been placed on Step Three Discipline in the absence of his having engaged in protected conduct. Pl. Pl. Whether Luminant treated other employees more favorably with regard to the discipline it issued for missing safety meetings is, thus, quite beside the point. 1981. With respect to claim (2), Plaintiffs denial of transfer, the court finds that he has established each of the elements of a prima facie case. The court, in reaching this conclusion, does not minimize the indignities or offensive conduct that Carter endured; however, the conduct falls far short of that required to establish a racially hostile work environment. at 269. at 70, 100-101. at 53. Br. 's Resp. Id. Plaintiff testified that Instructor Mallory announced to everyone, "Well, everybody passed the test but one person, Anthony Carter." The court will consider this statement and overrules Defendant's objection to the extent it applies to this statement. Plaintiff initially met the minimum qualifications for a Multi Skill Power Craft Employee position and two Equipment Specialist positions. The court finds that the general cause of Plaintiff's stress and/or anxiety was reasonably pertinent to his diagnosis or treatment. King v. Dogan, 31 F.3d 344, 346 (5th Cir. Magic words are not required, but protected opposition must at least alert an employer to the employee's reasonable belief that unlawful discrimination is at issue. Accordingly, Defendant is entitled to judgment as a matter of law on Plaintiffs hostile work environment claim. at 38. The court, however, finds that the meaning of his words depends on various factors, including context, inflection, tone of voice, local custom, and historical usage. 's Resp.
The court must consider the social context of the plaintiff's work environment and what a reasonable person in Plaintiff's position would consider hostile. at 41. at 214, 222-223. Evans, 246 F.3d at 354. With respect to claim (6), Plaintiffs termination, Plaintiff has failed to adduce any evidence that he was replaced with a person who is not a member of the protected class or was treated less favorably because of his membership in that protected class than were other similarly situated employees who were not members of the protected class. Accordingly, there is no genuine dispute as to any material fact regarding them, and Luminant is entitled to judgment as a matter of law on these claims. Also, ropes were commonly used in the workplace for tag lines, air tuggers, and conveying tools from one elevation to the next. The parties spell this name as "Dwayne" and "Dewayne." While an employer's actions may have increased the chance that that one would eventually suffer an adverse employment action, the possibility of discharge does not equal being discharged, and such action is not an ultimate employment decision. "[A] party may not defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony." This rule also applies even when the affidavit (or declaration) contradicts prior sworn testimony by the affiant himself. Matsushita Elec. Arrieta v. Yellow Transp., Inc., 2008 WL 5220569, at *17 (N.D. Tex. Id. Br. 's App. Importantly, Plaintiff refused to sign the Step Three Letter because he believed the letter to be inflammatory and an admission of guilt. Pl. 2003) (citing Shackelford v. DeLoitte Touche, LLP, 190 F.3d 398, 409 (5th Cir. Id. Pl. Conduct in which the harasser does not refer to the victim's protected characteristic can be considered harassment based on the victim's protected characteristic. The purpose of the Step Three Letter is to confirm the employee's commitment to conform to the company's standards of conduct, rules, and practices. at 243-244. Plaintiff has not established that Acuff's statement is a party admission under Federal Rule of Evidence 801(d)(2)(D). Id. Luminant terminated Plaintiffs employment in November 2009 because he refused to sign his Step Three Discipline letter acknowledging his commitment to comply with the company's rules. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. (emphasis added). The court finds that Plaintiff has failed to meet his burden. See Shackelford, 190 F.3d at 409. at 271; Def. at 316. Defendant argues that the position required a high school diploma, GED, or equivalent and that Plaintiff has failed to show that Scarbrough does not possess a GED or the equivalent. 's App. Pl. Therefore, any reference to the terms "hang(ed)," "hung," "rope," "noose," or the like, in the context described by Carter, can be reasonably interpreted to refer to an African-American man being illegally put to death, usually by a mob of misguided individuals seeking vigilante justice. While Luminant has placed other employees at Oak Grove on Step Three Discipline (including two Caucasian employees who were not currently in any steps of discipline), none of the employees refused to sign their Step Three letters, and all of those employees continued their employment after they signed their Step Three letters. at 13-14. Br. Id. See Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir. Def's Reply Br. See Def.
Upon leaving the control room with the Flour agent and Luminant employee, Luminant Supervisor Mike Cockerham and four crew members met up with them. Co., 332 F.3d 874, 883-84 (5th Cir. seq. Pl. at 411-12. at 14. at 243. The court therefore directs the parties to inform it in writing by December 9, 2011, whether they are amendable to having this action mediated by United States Magistrate Judge Paul D. Stickney. Conclusory statements, speculation, and unsubstantiated assertions cannot defeat a motion for summary judgment. Br. Accordingly, the court concludes Plaintiff has not raised a fact question regarding whether Thomas's comment was race-based. It is possible that Plaintiffs test alteration was race-based; however, Plaintiff does not provide the court with sufficient information for it to make that inference. Def's Br. Plaintiff has not established, however, that his work environment was also objectively offensive. Carter's summary judgment evidence shows Darren Thomas placed him on Step One Discipline on April 3, 2009. Carter presents evidence to rebut Luminants claim that he was placed on Step Three Discipline because of his unexcused absences from three mandatory safety meetings. Pl. Plaintiff states Darren Thomas placed Carter on Step One Discipline on April 3, 2009, for being approximately thirty minutes late to work on March 8, 2009, because he failed to adjust his clock for Daylight Savings Time. If an employee fails to respond to coaching and counseling by a supervisor, or if a situation warrants formal discipline, the situation may be addressed using formal steps of discipline-ranging from a Step One Oral Reminder, to a Step Two Written Reminder, to a Step Three Decision-Making Leave, to termination. at 46. 1981. 1996)). R. Civ. 's App. Plaintiff asserts that, in November 2008, he complained to Darren Thomas regarding Mike Cockerham's instruction for him to get to the back of the group. 2008) (citing Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir. Def's App.
Plaintiff asserts in his response brief that he opposed racial discrimination by making a complaint to Revis Goodwin in February 2009. J. Br. Hernandez, 641 F.3d at 125 (citing Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. As Carter has not produced evidence demonstrating that Supervisor Thomas had knowledge of his alleged protected activity at the time Thomas placed him on Step One Discipline on April 3, 2009, Carter's Step One Discipline cannot form the basis of a retaliation claim. With respect to Plaintiffs claims (5) and (6), the court determines Plaintiff has established the elements of a prima facie case. The court overrules Defendant's objections on the bases that Exhibit 8 is unauthenticated and lacks a proper foundation. Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. The court notes that the numerous other events of which Carter complains, detailed in Section I(C) of this opinion, although viewed in the light most favorable to Plaintiff, fall well below the "ultimate employment decision" standard. For example, Carter argues that he missed the same number of safety meetings as Joel Ruen. Considering the totality of the circumstances, the court similarly determines that Plaintiff has not established that the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment. Pl. The rule does not require that each statement be "necessary" for medical treatment; it requires that statements be reasonably pertinent to diagnosis or treatment. On another occasion, Williams purportedly heard a white coworker of Carter say over the radio regarding Carter, "We ought to hang that nigger!" Plaintiff and Defendant dispute whether Carter was placed on Step Three Discipline for missing one safety meeting or three safety meetings. Br. Plaintiff argues that Luminant fails to provide an appropriate context for many of the remarks made by Carter in his deposition testimony and that the court should look at Plaintiffs broader testimony. P. 56(e)(1). Martin King was the only other African-American employed by Luminant at Oak Grove during Plaintiffs employment. Br.
Plaintiff challenges one transfer request-Luminant's failure to transfer him to the position of Multi-Skill Power Craft employee at Lake Hubbard in 2009.
at 85. at 53. Plaintiff testified that on one occasion he overheard a conversation between coworker Brian Arceneaux and Supervisor Darren Thomas, wherein Arceneux was speaking about Carter and saying, "This is how we dealt with them back home." "[T]he denial of a transfer may be the objective equivalent of the denial of a promotion, and thus qualify as an adverse employment action" for purposes of Title VII. at 13-14. ), Judge Lindsay addressed the alleged use in the workplace of terms associated with lynching. Pegram, 361 F.3d at 282, abrogated in part on other grounds in retaliation cases by Burlington Northern, 548 U.S. at 68. Def's App. at 26. at 27. Plaintiff's declaration does not support his contention that he reported Cockerham's instruction to Darren Thomas. Def's App. 's App. 2001). Darren Thomas reported to Dwayne Coffey. Plaintiff also applied for various positions in 2009. Plaintiff 's statement documented by Thomas is not hearsay, as it is not used for the truth of the matter asserted but instead to show Luminant 's knowledge of Plaintiff's assertion. Pl. Pl. Pl. at 40, 268. Pl.
Less than six weeks later, in early November 2009, Luminant requested that Carter sign a Step Three Letter drafted by upper management. He had a second meeting on the next day with Bryan Barnett, Darren Thomas, and Dwayne Coffey also about Step Three Discipline, and Plaintiff refused to sign the Step Three Letter. 's App. at 45. at 275. The office manager also informed them that the vice-president did not want the African-American women to talk to each other." 's App. Title VII does not cover "every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." 's Supp. Pl. at 21. McCoy, 492 F.3d at 557. On another occasion, Plaintiff was in the control room with a Luminant employee and a Commissioning Agent from a company called Flour, and was about to participate in a walk-down of the drain systems. In light of these instances of conduct, the court concludes that the harassment experienced by Carter was not severe or pervasive enough to constitute a hostile work environment. The employer's burden is only one of production, not persuasion, and involves no credibility assessment. King v. Louisiana, 294 F. App'x 77, 84-85 (5th Cir. 's App. Although not specifically raised as a claim in the Complaint, some allegations therein indicate that Plaintiff asserts a claim for race discrimination based on harassment or hostile work environment. 's App. The court may permit a party to properly support or address a fact that the party has previously failed to properly support. Plaintiff has not demonstrated that no reasonable person could have chosen the candidate selected, Scarbrough, over him for the Multi-Skill Power Craft employee position. 's App. at 25-26. of Tex. 163, 177-179. Br. at 197. For a hostile working environment to be deemed sufficiently hostile, all of the circumstances must be taken into consideration. With respect to claims (5) and (6), the court finds Plaintiff has demonstrated a conflict in substantial evidence on the ultimate "but for" causation issue.
's Resp. Carter was called out to the plant on the radio but returned shortly thereafter to find Page gone and a hangman's noose hanging in the bathroom of the break room. 's App. at 22, 25. at 19. A timeline was prepared by Coffey, which was considered in the decision to put Plaintiff on Step Three Discipline. at 48. See, e.g., Raggs v. Mississippi Power Light Co., 278 F.3d 463, 471-72 (5th Cir. at 14), Plaintiffs summary judgment evidence actually shows that Plaintiff made this complaint on April 4, 2009. 's App. The court, nevertheless, finds that "in or around October 2009" does not necessarily mean within the month of October 2009. Pegram v. Honeywell, Inc., 361 F.3d 272, 283 (5th Cir. 1999)). at 240. 's App. Carter asserts that the "Fifth Circuit and other courts have long recognized that racially degrading comments and actions can create or contribute to a hostile work environment even when they are not specifically directed at an individual plaintiff." In Exhibit 23, Cole explains that Plaintiff "believes the symptoms he is suffering are job-related. at 69. Long, 88 F.3d at 305 n.4. Plaintiff asserts in support of his retaliation claim identical adverse employment actions to those asserted in support of his race discrimination claim: (1) Supervisor Darren Thomas placed Carter on Step One Discipline on or about April 3, 2009; (2) Dwayne Coffey blocked the transfer requests of Carter in or around August or September 2009; (3) Darren Thomas assigned Carter to the "scrubbers" for more than two terms; (4) Darren Thomas reprimanded Carter on October 16, 2009, for taking excessive time off work; (5) Luminant placed Carter on Step Three Discipline; and (6) Luminant terminated Carter's employment. As Plaintiff has not shown that a similarly-situated employee outside his protected class was treated more favorably by Luminant with regard to its decision to terminate Plaintiff, he has failed to establish a prima facie case for his termination claim. The court finds that Defendant has met its burden, regardless whether Plaintiffs discipline was due to missing a single meeting or multiple meetings. Carter also does not provide any evidence that he witnessed the hangman's nooses (other than the one he reported to Johnson) on the jobsite. Lee, 574 F.3d at 260. 's App. 's App. at 14. With respect to the other positions for which Plaintiff applied in 2008, Luminant determined Plaintiff was ineligible to transfer into any of those positions because he had not been in his then-current position at Oak Grove for six months. Def's App. 's Resp. 's App. 's App. at 70. Def's Br. As the record is not fully developed, the court finds that a reasonable jury could conclude the position Carter sought was objectively better and that the denial of the transfer at issue was the equivalent of the denial of a promotion, as it was not a lateral transfer. 's App. at 242. The court also finds that Exhibit 23 is not hearsay, as it is an admission by a party-opponent within the meaning of Federal Rule of Evidence 801(d)(2).
Pl. Carter sought Luminant's assistance to transfer to another Luminant plant or facility. 's App. At this point, summary judgment is appropriate unless the plaintiff raises a genuine dispute of material fact that the defendant's rationale is pretextual. Id. Though the court determines that Plaintiff has not adduced evidence that other employees received noninflammatory letters, it finds that Plaintiff has adduced evidence to raise a genuine dispute of material fact as to whether Defendant used its Step Three Discipline policy in a retaliatory manner. Id. First, when Carter began working on the crew for Supervisor Thomas, he told Carter that he had been reading a book, and when Carter inquired what it was about, Thomas said it was about a slave whose master helped him get a job. (citing Deines v. Texas Dep't of Prot. The standard is more accurately stated as follows: If defendant meets its burden of production, the plaintiff bears the ultimate burden of proving that either: (1) the employer's proffered reason is a pretext for retaliation (pretext alternative), or (2) that the employer's reason, although true, is but one of the reasons for its conduct, another of which was the plaintiffs protected conduct (mixed-motives alternative). Def's App. Br. If an employee's decision is to return to work and abide by the company's rules, the supervisor will draft a letter ("Step Three letter") to the employee confirming the employee's commitment and the consequences of failure to keep the commitment. Plaintiff contends that for purposes of surviving a motion for summary judgment, "it is enough that Carter offer circumstantial evidence that could allow a jury to reasonably conclude that the final decision-maker responsible for the adverse employment action taken against the plaintiff was at least in part motivated by [his] protected activity." at 22. Plumlee v. City of Kennedale, ___ F. Supp. "Pretext-plus" is not required to support an inference of retaliatory discrimination. Plaintiff testified that on another occasion Arceneaux and another coworker, Brian Barnett, were in the production trailer where Carter was situated, and they started talking and singing loudly that: "This is redneck country!" at 048. The court finds that Plaintiff has not produced evidence demonstrating that Supervisor Thomas had knowledge of his protected activity at the time of the alleged retaliatory act. Plaintiff asserts that Instructor Mallory ignored his questions and lectured to and catered to only one side of the room. McCoy, 492 F.3d at 556-57 (footnote and citation omitted); Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. The court overrules as moot Defendant's hearsay objection regarding Plaintiffs statements within the document, as the court does not consider the statements for the truth of the matter asserted but rather for the fact that the statements were made. 