Williams v. E.I. du Pont de Nemours & Co., CIVIL ACTION NO. 14-382-JWD-EWD

• Decision Date: 11 April 2016
• Docket Number: CIVIL ACTION NO. 14-382-JWD-EWD
• Citation: 180 F.Supp.3d 451
• Parties: Allen Williams v. E.I. du Pont de Nemours and Company
• Court: U.S. District Court — Middle District of Louisiana

180 F.Supp.3d 451

Allen Williams

v.E.I. du Pont de Nemours and Company

CIVIL ACTION NO. 14-382-JWD-EWD

United States District Court, M.D. Louisiana.

Signed April 11, 2016

Jane H. Barney, J.H. Barney Law Firm, LLC, J. Arthur Smith, III, Smith Law Firm, Baton Rouge, LA, for Allen Williams.

Monique M. Weiner, Leigh Ann Schell, Lori A. Waters, Sara C. Valentine, Kuchler Polk Schell Wiener & Richeson, New Orleans, LA, for E.I du Pont de Nemours and Company.

RULING AND ORDER

JUDGE JOHN W. deGRAVELLES, UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA

This matter comes before the Court on the Motion for Summary Judgment (Doc. 105) filed by Defendant E.I. du Pont de Nemours and Company (“DuPont”). Plaintiff Allen Williams opposes the motion. (Doc. 106, 107, 116, 118, 122, 125, 130, 132) Oral argument is not necessary. After carefully considering the law, the facts in the record, and the arguments of the parties, Defendant's motion is granted in part and denied in part.

Specifically, Defendant's motion is granted in that the following claims are dismissed with prejudice: (1) the Section 1981 claim for disparate treatment and (to the extent made) retaliation for the October 2013 incident of Plaintiff being docked for two hours; (2) the Title VII and Section 1981 claims for disparate treatment and (to the extent made) retaliation for the January 2014 incident of Plaintiff being required to take a vacation day for missed work; and (3) the Section 1981 claims of disparate treatment and retaliation related to being subject to heightened scrutiny, having to submit a doctor's note, and a lack of overtime compared to Caucasian workers.

In all other respects, Defendant's motion is denied. Specifically, the Court denies the Defendant's motion on the following issues: (1) the Title VII and Section 1981 claim for disparate treatment for the January 24, 2010, shift change; (2) the Title VII and Section 1981 claims of retaliation for the April 6, 2010, write-up; (3) the claim for overtime and punitive damages for the shift change and write-up; and (4) the other claims that were asserted by Plaintiff in his Pretrial Order and that Defendant did not specifically seek to dismiss.

Finally, Plaintiff shall have sixty (60) days from the date of this order to provide proper authentication for the exhibits specifically noted herein.

I. The January 24, 2010, Shift Change

The first issue is the Plaintiff's claims under Title VII and Section 1981 for disparate treatment for the January 24, 2010, shift change. Defendant claims that the shift change was not an adverse employment action because it did not affect the Plaintiff's pay, job duties, or benefits. Plaintiff rejects this argument and contends that shift change was a transfer to an objectively worse position.

The Fifth Circuit laid out the appropriate standard for this issue in Thompson v. City of Waco, Texas , 764 F.3d 500 (5th Cir.2014)

. There, the court explained:

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment , because of such individual's race. ... ” 42 U.S.C. § 2000e–2(a)(1)

(emphasis added). To establish a discrimination claim under Title VII or § 1981, a plaintiff must prove that he or she was subject to an “adverse employment action”—a judicially-coined term referring to an employment decision that affects the terms and conditions of employment. See, e.g.,

Pegram v. Honeywell, Inc. , 361 F.3d 272, 281–82 (5th Cir.2004) ; see also

Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 62, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (explaining that the language of Title VII's antidiscrimination provision “explicitly limit[s] the scope of that provision to actions that affect employment or alter the conditions of the workplace”).

For Title VII and § 1981 discrimination claims, we have held that adverse employment actions consist of “ultimate employment decisions” such as hiring, firing, demoting, promoting, granting leave, and compensating. See

McCoy v. City of Shreveport , 492 F.3d 551, 560 (5th Cir.2007) ; Alvarado v. Tex. Rangers , 492 F.3d 605, 612 (5th Cir.2007) ; Pegram , 361 F.3d at 282. “[A]n employment action that ‘does not affect job duties, compensation, or benefits' is not an adverse employment action.” Pegram , 361 F.3d at 282 (quoting Banks v. E. Baton Rouge Parish Sch. Bd. , 320 F.3d 570, 575 (5th Cir.2003) ).

Additionally, our court has held that a transfer or reassignment can be the equivalent of a demotion, and thus constitute an adverse employment action. See

Alvarado , 492 F.3d at 612–15. “[T]o be the equivalent to a demotion, a transfer need not result in a decrease in pay, title, or grade; it can be a demotion if the new position proves objectively worse—such as being less prestigious or less interesting or providing less room for advancement.” Id. at 613 (quoting Sharp v. City of Hous. , 164 F.3d 923, 933 (5th Cir.1999) ); Pegram , 361 F.3d at 283 (“[A]n employment transfer may qualify as an adverse employment action if the change makes the job objectively worse.” (internal quotation marks omitted)); Hunt v. Rapides Healthcare Sys., LLC , 277 F.3d 757, 770 (5th Cir.2001) (“A job transfer that includes a shift change that involves changes in duties or compensation or can be objectively characterized as a demotion may be an ‘adverse employment action’....”); see, e.g.,

Sharp , 164 F.3d at 933 (“The jury could have viewed transferring from the elite Mounted Patrol to a teaching post at the Police Academy to be, objectively, a demotion.”); Forsyth v. City of Dall. , 91 F.3d 769, 774 (5th Cir.1996) (recognizing as demotions the reassignment of two police officers from the Intelligence Unit to night patrol because the Intelligence Unit positions “were more prestigious, had better working hours, and were more interesting than night patrol” and “few officers voluntarily transferred from the Intelligence Unit to night patrol and other officers had been so transferred as punishment”); Click v. Copeland , 970 F.2d 106, 110 (5th Cir.1992).

Id. at 503–04

. See also

Alvarado v. Texas Rangers , 492 F.3d 605, 614 (5th Cir.2007) (rejecting Defendant's argument that loss of prestige cannot render a transfer an adverse employment action and explaining that Pegram v. Honeywell, Inc. , 361 F.3d 272 (5th Cir.2004)

“stands for the proposition that a plaintiff must ‘assert more than a loss of subjective prestige,” id. at 284 (emphasis added); it does not ... mean that a plaintiff cannot rely on a loss of objective prestige as evidence that a transfer was really a.’ demotion”).

Further, this Court has recognized that:

An employer's action may constitute an adverse employment action if it “makes the job objectively worse.” Additionally, “[a] job transfer that includes a shift change that involves changes in duties or compensation or can be objectively characterized as a demotion may be an adverse employment action. ... ” A transfer can be characterized as a demotion when it involves a transfer from a more prestigious position to a less prestigious one, particularly if the employer has traditionally used such transfers as a form of discipline or where the new position involves “significantly different duties.” A purely lateral transfer is one that “does not involve a demotion in form or substance” or that is “[a] transfer involving no reduction in pay and no more than a minor change in working conditions. ... ”

Mascarella v. CPlace Univ. SNF, LLC , No. 13–CV–642–SDD–RLB, 2015 WL 2414518, at *7 (M.D.La. May 20, 2015)

(citations omitted) (finding adverse employment action when plaintiff suffered parking and restroom problems, claimed her job title changed, was no longer a supervisor, was in a less desirable facility, and was given mostly administrative paperwork).

The Court finds Bouvier v. Northrup Grumman Ship Systems, Inc. , 350 Fed.Appx. 917 (5th Cir.2009)

persuasive. Though the Fifth Circuit affirmed the granting of summary judgment on issue of pretext, the appellate court found that the plaintiff, a crane operator, suffered an adverse employment action when her employer suspended her for two days and temporarily reassigned her to the position of crane rigger. Id. at 922–23. The Fifth Circuit explained, while “[i]t [wa]s not readily apparent that this was an adverse employment action because crane operator and rigger are similar jobs and she had an opportunity for reinstatement as crane operator,” the Court still found an adverse employment action and proceeded with the full McDonnell Douglas analysis. The Fifth Circuit explained:

However, due to Bouvier's testimony and declarations of her coworkers, we conclude that Bouvier put forward sufficient evidence that the transfer to crane rigger involved a loss of prestige and responsibility. The training required to become a crane operator also demonstrates that employees coveted the operator position and considered it a promotion from crane rigger. See Alvarado , 492 F.3d at 614–15

(listing several factors for determining whether a denial of a transfer is an adverse employment action including how the respective positions are viewed among employees and the skills and training required to transfer).

Id.

The Court finds that the Plaintiff has submitted enough evidence to create a genuine issue of fact as to whether the shift change was objectively worse. The Court bases its decision on the following:

- Most significantly, multiple witnesses testified that “nobody on that plant wants to work with Rene Becnel.” (Doc. 106-14 at 9; see also Doc. 106-15 at 2, 6.)

- One employee, Simoneaux, testified that Valentine, Plaintiff's allegedly racist supervisor who caused the shift change, told Simoneaux that Becnel “operates half-hazardouxly [sic], he's all over the place running around” and “runs around with his head cut off,” and Simoneaux agreed with this assessment. (Doc.

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