Hardy v. Shell Chemical Co., Civil Action No. 09-3189.

• Decision Date: 01 March 2010
• Docket Number: Civil Action No. 09-3189.
• Citation: 693 F. Supp.2d 611
• Parties: William HARDY v. SHELL CHEMICAL COMPANY and Shell Chemical LP.
• Court: U.S. District Court — Eastern District of Louisiana

693 F. Supp.2d 611

William HARDY v.SHELL CHEMICAL COMPANY and Shell Chemical LP.

Civil Action No. 09-3189.

United States District Court, E.D. Louisiana.

March 1, 2010.

Dan Michael Scheuermann, Attorney at Law, Baton Rouge, LA, for Plaintiff.

Thomas J. McGoey, II, Kindall C. James, Liskow & Lewis, New Orleans, LA, for Shell Chemical LP.

ORDER

LANCE M. AFRICK, District Judge.

The defendant, Shell Chemical LP("Shell"),¹ has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.²The plaintiff, William Hardy("Hardy"), has filed an opposition.³For the following reasons, the motion is GRANTED IN PART AND DENIED IN PART.

BACKGROUND

From 1989 through April 3, 2008, plaintiff was employed as an engineer for Shell Oil Company.⁴Hardy alleges that Shell began to discriminate against him on the basis of his age in 2004, when he turned 55.⁵Hardy claims that he was treated less favorably than younger, similarly situated employees.⁶In his complaint, Hardy contends that he was denied promotion opportunities, overlooked for job-related training, and that he received reduced compensation relative to younger employees.⁷Hardy avers that, in contrast to younger employees of his same grade, he was assigned to report to a lower level of management, moved to a smaller office, and transferred to five separate managers in three years.⁸According to Hardy, he"was assigned work tasks that were not outlined in his job description and penalized for not meeting unrealistic deadlines."⁹

Hardy contends that on April 3, 2007, he submitted a written complaint to his manager, Suzanne Karst("Karst"), complaining that he was constantly compared to younger employees and subjected to harassment and a hostile work environment.¹⁰Hardy states that Karst referred this complaint to Shell's human resources department.¹¹

On February 8, 2008, Hardy filed a charge of discrimination with the Louisiana Commission on Human Rights on the grounds of age discrimination and retaliation.¹²On February 26, 2008, in a written response to his job performance review, Hardy complained of age discrimination and retaliation and stated that he had filed a charge of discrimination with the Louisiana Commission on Human Rights.¹³A February 27, 2008 email from Hardy's supervisor, Tammy Little("Little"), to Karst discusses terminating Hardy.¹⁴Two emails from Karst, dated March 27, 2008 and March 28, 2008, similarly discuss Hardy's termination.¹⁵On April 3, 2008, Shell terminated Hardy for his purported poor job performance.¹⁶

On March 31, 2009, plaintiff filed the above-captioned lawsuit pursuant to the federal Age Discrimination in Employment Act,29 U.S.C. 621, et seq., Louisiana's Anti-Discrimination Law, La.R.S. 23:332, Louisiana's Whistleblower Protection Law, La.R.S. 23:967, andLouisiana's Environmental Whistleblower Protection Law, La.R.S. 30:2027.In his complaint, Hardy claims that he was fired on the basis of age discrimination, in retaliation for inquiries he made regarding age discrimination, and in retaliation for recommendations he made regarding compliance with environmental standards.¹⁷

On January 15, 2010, Shell filed a motion for summary judgment.¹⁸Shell contends that Hardy was terminated for a legitimate, non-discriminatory reason, namely, his poor job performance.¹⁹Shell states there is no evidence, aside from timing, to suggest that the defendant's actions were fueled by a retaliatory motive.²⁰Shell asserts that the defendant never engaged in conduct that qualifies as a protected activity under Louisiana's whistleblower laws.²¹

LAW AND ANALYSIS

I.STANDARDS OF LAW

A.Summary Judgment

Summary judgment is proper when, after reviewing "the pleadings, the discovery and disclosure materials on file, and any affidavits,"the court determines there is no genuine issue of material fact.Fed. R.Civ.P. 56(c).The party seeking summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett,477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986).The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case.Celotex,477 U.S. at 323, 106 S.Ct. 2548;Fontenot v. Upjohn Co.,780 F.2d 1190, 1195(5th Cir.1986).

Once the party seeking summary judgment carries its burden pursuant to Rule 56(c), the other party must come forward with specific facts showing that there is a genuine issue of material fact for trial.Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538(1986).The non-moving party must carry this burden as to each essential element on which it bears the burden of proof.Schaefer v. Gulf Coast Regional Blood Center,10 F.3d 327, 330(5th Cir.1994).The showing of a genuine issue is not satisfied by creating "`some metaphysical doubt as to the material facts,' by `conclusory allegations,'`unsubstantiated assertions,' or by only a `scintilla' of evidence."Little v. Liquid Air Corp.,37 F.3d 1069, 1075(5th Cir.1994)(citations omitted).Instead, a genuine issue of material fact exists when the "evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986).The party responding to the motion for summary judgment may not rest upon the pleadings, but must identify specific facts that establish a genuine issue.Id.The nonmoving party's evidence, however, "is to be believed, and all justifiable inferences are to be drawn in the nonmoving party's favor."Id. at 255, 106 S.Ct. 2505;seeHunt v. Cromartie,526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731(1999).

B. ADEA Claim

The Age Discrimination in Employment Act("ADEA") authorizes federal employees to bring claims for discrimination based on age.ADEA of 1978 § 15, 29 U.S.C. § 633a(2006);Boehms v. Crowell,139 F.3d 452, 462(5th Cir.1998).The ADEA makes it unlawful "for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."ADEA § 4(a)(1),29 U.S.C. § 623(a)(1).

An ADEA claim may be brought either under a disparate-treatment or a disparate-impact theory of recovery.Page v. U.S. Indus., Inc.,726 F.2d 1038, 1045(5th Cir.1984)(citingInt'l Bhd. of Teamsters v. United States,431 U.S. 324, 335-36, 97 S.Ct. 1843, 1854, 52 L.Ed.2d 396(1977));Hazen Paper Co. v. Biggins,507 U.S. 604, 609-10, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338(1993)("The disparate treatment theory is of course available under the ADEA, as the language of that statute makes clear.").A disparate-treatment claim is one in which the employer treats some employees less favorably based upon one of the protected traits, i.e., those practices motivated by discriminatory intent, while disparate-impact claims "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another," i.e., those practices that have a discriminatory consequence.Int'l Bhd. of Teamsters,431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15;Griggs v. Duke Power Co.,401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158(1971).

The complainant in an ADEA disparate-treatment claim "must carry the initial burden . . . of establishing a prima facie case of . . . discrimination" by a preponderance of the evidence.Tex. Dep't of Cmty. Affairs v. Burdine,450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207(1981);McDonnell Douglas Corp. v. Green,411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668(1973).In order to establish a prima facie case of disparate-treatment discrimination based upon age, the complainant must show that: (1)he was at least forty years of age,²²(2)he was qualified for the position, (3)he suffered an adverse employment action, and (4)he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age.McDonnell Douglas,411 U.S. at 802, 93 S.Ct. at 1824;Berquist v. Wash. Mut. Bank,500 F.3d 344, 349(5th Cir.2007).

Once the complainant has met this initial burden, the burden shifts to the defendant to proffer a legitimate, nondiscriminatory reason for the employment decision.Burdine,450 U.S. at 253, 101 S.Ct. at 1093.The burden is one of production and not persuasion.Reeves v. Sanderson Plumbing Prods., Inc.,530 U.S. 133, 142, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105(2000).It cannot, therefore, involve a credibility assessment.Id.If the defendant carries this burden, the burden shifts back to the complainant to prove that the reasons given for the employment decision were merely a pretext for discrimination.Burdine,450 U.S. at 253, 101 S.Ct. at 1093.

In order for a complainant to avoid summary judgment, he"must present evidence that both (1) rebuts the employer's non-discriminatory reason, and (2) creates an inference that the protected trait was a determinative factor in the challenged employment decision."Ross v. Univ. of Tex.,139 F.3d 521, 525(5th Cir.1998).Proof of the employer's discriminatory intent is a critical requirement.Hazen Paper,507 U.S. at 609-10, 113 S.Ct. at 1705-06("In a disparate treatment case, liability depends on whether the protected trait . . . actually motivated the employer's decision.");Siler-Khodr v. Univ. of Tex. Health Sci. Ctr. San Antonio,292 F.3d 221, 225 & n. 6(5th Cir.2002).

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