Cassimere v. Fastorq, LLC.

• Decision Date: 01 March 2017
• Docket Number: CIVIL NO. 6:15-2352
• Parties: LEON CASSIMERE, JR. v. FASTORQ, LLC.
• Court: U.S. District Court — Western District of Louisiana

LEON CASSIMERE, JR. v. FASTORQ, LLC.

CIVIL NO. 6:15-2352

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA

March 1, 2017

MAGISTRATE JUDGE HANNA

BY CONSENT OF THE PARTIES

MEMORANDUM RULING

Pending before the Court is a Motion for Summary Judgment filed by Fastorq, LLC ("Fastorq"). [rec. doc. 37]. Plaintiff, Leon Cassimere, Jr. ("Cassimere"), has filed Opposition [rec. doc. 44¹], to which Fastorq has filed a Reply [rec. doc. 41].

For the reasons set forth below, the Motion for Summary Judgment is granted in part.

BACKGROUND

Cassimere, an African American male, brought this race discrimination, harassment and retaliation action asserting federal claims under 42 U.S.C. § 2000e-5, Title VII of the Civil Rights Act of 1964 (as amended).²

In his Complaint, Cassimere alleges that during his employment with Fastorq, he was subjected to a discriminatory pay practice in that he received less wages than comparable non-African American employees and was issued disciplinary write-ups following job location complaints, while non-African American employees were not. In his deposition, Cassimere identified Robert Garcia as the comparable white employee who received better pay. Cassimere additionally alleges that Fastorq retaliated against him for filing a complaint with the EEOC. Finally, Cassimere alleges that Fastorq fired him on June 9, 2015 stating that his position was being eliminated due to a reduction in work force, when in fact, he was actually replaced by a white employee. In his deposition, Cassimere identified Mike Jones as the comparable white employee hebelieves replaced him. Cassimere alleges that he filed a complaint with the EEOC on May 28, 2015. On June 24, 2015, the EEOC rendered a no probable cause determination and issued a right to sue letter. This lawsuit was filed on September 10, 2015.

Fastorq contends that Cassimere's discriminatory pay practice claim, retaliation for filing an EEOC charge and discriminatory termination based on race claims, as well as Cassimere's un-plead claim that he was not assigned jobs based on his race, have not been administratively exhausted by proper presentation to the EEOC. Fastorq further asserts that Cassimere failed to properly plead numerous instances of discrimination in his Complaint, which are therefore subject to dismissal. Fastorq contends that Cassimere's race discrimination claims fail because he has not established a prima facie case of discrimination, or alternatively, that Cassimere's disciplinary write ups and termination were based solely on legitimate non-discriminatory reasons, namely, his unsatisfactory work performance and a reduction in work force, respectively.

In opposition, Cassimere argues that he "believes his termination was retaliation against him for filing the charge of discrimination with the EEOC", that he "believes he was discriminated against on his job because of his race" and that "[h]e feels that he was terminated from his job at Fastorq in retaliation for reporting those claims." Cassimere additionally asserts that he is "simply acting on his right to sue ". In support of these arguments, Cassimere submits the same pages from his deposition that weresubmitted by Fastorq in support of summary judgment and the determination and right to sue letter issued by the EEOC with respect to EEOC charge 1289.

Summary Judgment Standard

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is mandated when the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Am. Home Assurance Co. v. United Space Alliance, LLC, 378 F.3d 482, 486 (5^th Cir. 2004); Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if proof of its existence or nonexistence might affect the outcome of the lawsuit under the applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Minter v. Great American Insurance Co. of New York, 423 F.3d 460, 465 (5^th Cir. 2005). A genuine issue of material fact exists if a reasonable jury could render a verdict for the nonmoving party. Thorson v. Epps, 701 F.3d 444, 445 (5^th Cir. 2012).

The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion, and identifying those parts of the record that it believes demonstrate the absence of genuine issue of material fact. Washburn v. Harvey, 504 F.3d 505, 508 (5^th Cir. 2007). If the moving party carries its initial burden, the burden shifts to the nonmoving party to demonstrate the existence of a genuine issue of a material fact. Id. In such a case, the non-movant may not rest upon the allegations in his pleadings, but rather must go beyond the pleadings and designatespecific facts demonstrating that there is a genuine issue for trial. Celotex v. Catrett, 477 U.S. at 325. All facts and justifiable inferences are construed in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).

If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that there is insufficient proof concerning an essential element of the nonmoving party's claim. Norwegian Bulk Transport A/S v. International Marine Terminals Partnership, 520 F.3d 409, 412 (5^th Cir. 2008). The motion should be granted if the non-moving party cannot produce sufficient competent evidence to support an essential element of its claim. Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 197 (5^th Cir. 2005). However, metaphysical doubt as to the material facts, conclusory allegations, unsubstantiated assertions and those supported by only a scintilla of evidence are insufficient. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5^th Cir. 1994).

In an employment discrimination case, the focus is on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff. Grimes v. Texas Department of Mental Health and Mental Retardation, 102 F.3d 137, 139 (5^th Cir. 1996) (and cases cited therein); Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 312 (5^th Cir. 1999). As in any case, unsubstantiated assertionsand conclusory allegations are not competent summary judgment evidence. Grimes, 102 F.3d at 139; Lawrence, 163 F.3d at 312; Hervey v. Mississippi Dept. of Educ., 404 Fed.Appx. 865, 870 (5^th Cir. 2010) citing Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.2002) ("conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden on a motion for summary judgment"); See also Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (an employee's self-serving generalized testimony stating his subjective belief that discrimination occurred is insufficient to support a jury verdict); Tamuno v. KFC USA, Inc., 176 F.3d 480 (5^th Cir. 1999) citing Little v. Republic Refining Co., Ltd., 924 F.2d 93, 96 (5th Cir.1991) quoting Elliot v. Group Medical & Surgical Servs., 714 F.2d 556, 567 (5th Cir.1983) (plaintiff's affidavit and deposition in the absence of other admissible evidence insufficient to defeat summary judgment). In response to a motion for summary judgment, it is therefore incumbent upon the non-moving party to present evidence - not just conjecture and speculation - that the defendant retaliated and discriminated against plaintiff on the basis of his race. Grimes, 102 F.3d at 140.

Undisputed Facts

Cassimere was hired by Fastorq on December 2, 2010. He was promoted to Supervisor II on September 8, 2014, making $23.00 per hour. At the time of his June 9, 2015 termination Cassimere was a Supervisor II. The reason given for his termination was "reduction in force."

Cassimere received three Employee Warning Reports dated April 17, 2014, May 8, 2014 and a combined report for location complaints on December 18, 2014 and January 27, 2015, respectively. Cassimere provided a written response to each.

The April 17, 2014 report states that in response to a question posed by the branch manager as to why Cassimere did not show up to help unload a job, Cassimere yelled at the branch manager and the district manager several times, actions considered insubordinate and unprofessional. The corrective action states that Cassimere was advised that yelling at anyone at work would not be tolerated, and that Cassimere should maintain a professional attitude and tone when addressing anyone at work. Cassimere's written response states that both he and the branch manager apologized for their respective behaviors, and that "an understanding had been reached." Cassimere additionally denied that he was asked to come to work that day.

The May 8, 2014 report states that a customer complained that Cassimere did not know how to perform a "stump test", he had a bad attitude, he did not fill out test charts properly and overcharged on the invoice. As a result, the customer requested that Cassimere not go back to that job location. The corrective action states that Cassimere should provide the highest level of customer service possible when on a customer's location and that a professional attitude should be maintained. He was asked to fill out all test reports completely. Cassimere was also advised that if a rest after completing ajob is needed, "please do so", but that rest time should not be charged back to the customer.

Cassimere's response states that "by refusing to comply with this particular company representative and his toolpusher's demands" he did his "job correctly; as trained; and as mandated by federal and state laws . . . ." Cassimere additionally stated that during his employ with Fastorq no other company representative had said that Cassimere did not know how to do his job and that it was difficult for Cassimere to believe that Fastorq would believe the company representative over him.

The ...