Davis v. Entergy Util. Enters., Civil Action 3:19-CV-848-KHJ-FKB

CourtUnited States District Courts. 5th Circuit. Southern District of Mississippi
Decision Date24 June 2022
Docket NumberCivil Action 3:19-CV-848-KHJ-FKB



Civil Action No. 3:19-CV-848-KHJ-FKB

United States District Court, S.D. Mississippi, Northern Division

June 24, 2022



This action is before the Court on Defendant Entergy Utility Enterprises, Inc.'s (“Entergy”) Motion for Summary Judgment [71]. For the following reasons, the Court grants in part and denies in part the motion.[1]

I. Facts and Procedural History

This case arises from Plaintiff Dorman Davis's employment with Entergy. Compl. [1] ¶ 3.14; Memo in Supp. of Mot. Summ. J. [72] at 9. Davis started working at Entergy[2] in 2007, after working for the Mississippi Public Utilities staff and the Mississippi Public Service Commission (“MPSC”). Decl. of Grenfell [71-1] ¶4; Decl. of Davis [82] ¶ 3. During his tenure, Davis worked underneath Bob Grenfell, Vice President of Regulatory Affairs. Resp. Memo. [80] at 1; [71-1] ¶¶2-3. For many years, Davis performed well in his role as Manager of Regulatory Affairs.


See [72] at 1; [80] at 1. Around 2013, Davis experienced problems in his personal life, and Grenfell accommodated his need to miss work. [71-1] ¶ 5; Decl. of Bass [71-7] at 2. In 2014, Davis's wife filed for divorce. Divorce Compl. [71-4]. After this, Davis claims to have suffered through several “personal problems.” See [80] at 6. The parties dispute the remaining facts.

Grenfell claims Davis was unengaged at work. [71-1] ¶ 5. Because of Davis's absence, several co-workers claim they performed Davis's duties during this time and their own work suffered. Decl. of Vanderloo [71-3] ¶¶4-6; Decl. of Reel [71-5] ¶ 6; [71-7] ¶¶ 6-8; Decl. of Heard [71-8] ¶ 7; Decl. of Turnipseed [71-10] ¶¶ 3-4. Davis insists that the true cause of his co-workers doing more work was not his absence but Entergy's transfer of his duties to others, particularly Shelly Bass, with the intent to terminate Davis's employment. See Depo. of Davis [82-5] at 4. He also claims that Entergy withheld information from him to make him look unproductive. Id. at 5.

In 2016, Grenfell placed Davis on a Performance Improvement Plan (“PIP”), which noted his “lack of reliability to be present and engaged,” “lack of effective communication,” and him “inconsisten[tly] reporting to work on a full-time basis.” 2016 PIP [71-13] at 1; [71-1] ¶ 7; see also Depo of Fisackerly [82-1] at 19.[3] Grenfell removed Davis from the 2016 PIP after Davis improved his performance, but considered reissuing another PIP in 2017 for the previous reasons. [71-1] 8-9.


In June 2017, Davis sent a letter to Entergy, stating that changes at Entergy “have gradually led [Davis] to the belief that there is a desire . . . to phase out his employment and/or his position.” Akers Letter [71-15] at 2. Davis's letter contended, “he [was] no longer allowed to attend internal meetings,” “access data,” or “meet with members or staff of the Mississippi Public Service Commission.” Id. He also claimed much younger employees were handling his duties. Id. Davis offered to renegotiate his contract with new provisions like severance pay, a contractor position, or guaranteed long-term employment. Id. at 3.

Entergy responded to Davis's letter, explaining that he was part of a team and “the successes of the team result from the efforts of numerous skilled and competent professionals many of whom . . . perform critical work for which [Davis] was responsible but failed.” Masinter Letter [71-17] at 1. The letter documented Davis's poor performance and countered his assertions. Id. at 1-2. Entergy rejected Davis's options to renegotiate his at-will employment and stressed that it expected him to “report to work as scheduled, remain in the office throughout the normal workday, . . . and otherwise meet the expectations of his manager role.” Id. at 2.

Grenfell placed Davis on another PIP in August 2017 for his “sporadic and unreliable” performance, lack of communication and participation in the regulatory process, and absenteeism. See 2017 PIP [71-18] at 2. The PIP required Davis to take corrective action, such as advance approval of time off and mandatory attendance at all his scheduled team meetings. Id. at 4. This PIP also tasked him with “developing a financial model to predict regulatory results,” which Davis claims was impossible


and beyond the capability of available software. [82] ¶ 13. The parties disagree whether Grenfell met with Davis over the coming months and documented Davis's noncompliance. See [71-18] at 5-6; [82-5] at 12 (stating Grenfell tried to get Davis to sign fraudulent records of their performance review meetings).

In November 2017, Davis filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), alleging discrimination on the basis of sex and age and retaliation for his June 2017 letter. EEOC Charge [1-2]. In December 2017, Davis refused to sign an MPSC-required audit report because he believed it contained misrepresentations about the costs of coal and replacement energy. See [82-5] at 21-32. Davis insists his refusal to sign upset Grenfell and “accelerated his departure” from the company. Id. at 58-59. In February 2018, Davis also questioned the depreciation calculations in Entergy's “formula rate plan,” an error Davis claims could not be approved without an MPSC order. Id. at 20-21, 34. That same day, Entergy CEO Fisackerly and Grenfell terminated Davis's employment. [80] at 46; [72] at 9. Davis believes Entergy terminated him in retaliation for filing his charge, reporting the errors, and for refusing to participate in fraudulent activity. [80] at 28, 36.

Davis amended his charge in April 2018. Amend. Charge [1-3]. He received his right to sue letter in 2019 and sued soon after. [1] at 10. Davis states claims of sex discrimination under Title VII of the Civil Rights Act of 1964; age discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”);


retaliation under Title VII and the ADEA; and state claims of wrongful discharge and infliction of emotional distress. [1] ¶¶ 4.1-6.1.

II. Standard

Summary judgment is appropriate when “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). “A fact issue is ‘material' if its resolution could affect the outcome of the action.” Levy Gardens Partners 2007, L.P. v. Commw. Land Title Ins. Co., 706 F.3d 622, 628 (5th Cir. 2013) (citation omitted). “An issue is ‘genuine' if ‘the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party.'” Jones v. United States, 936 F.3d 318, 321 (5th Cir. 2019) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In analyzing a motion for summary judgment, “the judge's function is not [her]self to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Klocke v. Watson, 936 F.3d 240, 246 (5th Cir. 2019) (quoting Anderson, 477 U.S. at 249).

A party seeking to avoid summary judgment must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(c). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The Court views the evidence and draws reasonable inferences in the light most favorable to the nonmovant. Duval v. N. Assur. Co. of Am., 722 F.3d 300, 303 (5th Cir. 2013).


III. Analysis

Entergy moves for summary judgment on all claims. Entergy also asks the Court to limit Davis's compensatory damages and deny punitive damages. [71]; [72] at 24-26. The Court addresses each claim in turn.

A. Disparate Treatment Claims - Title VII and ADEA

In the employment context, “[t]o succeed on a claim of intentional discrimination . . . a plaintiff must first prove a prima facie case of discrimination.” Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (citations omitted). In discrimination cases, plaintiffs may present a prima facie case either by direct evidence or by circumstantial evidence using the McDonnell Douglas analysis. Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir. 2019) (Title VII); Evans v. Houston, 246 F.3d 344, 350 (5th Cir. 2001) (ADEA). Davis proceeds with the latter- circumstantial evidence. So Davis can establish a prima facie case for employment discrimination by showing that he “(1) is a member of a protected group; (2) was qualified for the position at issue; (3) . . . suffered some adverse employment action by the employer; and (4) . . . was treated less favorably than other similarly situated employees outside the protected group.” Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 350 (5th Cir. 2008) (citing McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007)).

1. Sex Discrimination

Entergy argues Davis does not identify an adverse employment action except for his termination. [72] at 11-12. Entergy further contends Davis does not show


that Entergy's proffered reason for termination-his excessive absence and failure to perform his duties-is pretextual. Id. at 12-14. Davis does not respond to these arguments.

Adverse employment actions for purposes of Title VII discrimination include only “ultimate employment decisions” such as “hiring, granting leave, discharging, promoting, or compensating.” McCoy, 492 F.3d at 559. The “loss of some job responsibilities” is not an adverse employment action unless it is significant and material. Thompson v. City of Waco, 764 F.3d 500, 504 (5th Cir. 2014) (citations omitted). Along with firing him, Davis argues that Entergy “stripped” him of responsibilities, barred his group from speaking to the public utilities staff without permission, prevented him from attending meetings, and limited his ability...

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