Brooks v. Firestone Polymers, LLC
Paul D. BROOKS, Ellis E. Byrd, Jonathan E. Greenaway, Erick Guillory, Samuel W. Johnson, Wayne E. Johnson, Michael Spencer, and Ricky Ruffin v. FIRESTONE POLYMERS, LLC a/k/a Firestone
Attorneys
Craig J. â Sehexnaider, Bruce W. Cobb, Attorney at Law, Beaumont, TX, Plaintiffs., Michael David Mitchell, Robert L. Ivey, Stephen Eric Hart, Ogletree Deakins Nash Smoak & Stewart, Houston, TX, Daniel Anthony Verrett, Ogletree, Dea-kins, Nash, Smoak & Stewart, Austin, TX, for Defendant.
Full Opinion (html_with_citations)
SECOND AMENDED MEMORANDUM AND ORDER
Pending before the court are Defendant Firestone Polymers, LLCâs (âFirestoneâ) Motions for Summary Judgment (# s 59-66). Having considered the motions, the submissions of the parties, the pleadings, and the applicable law, the court finds that Firestoneâs motions should be granted in part and denied in part.
I. Background
Plaintiffs, all African-American males, allege that they were discriminated against on account of their race while employed at Firestoneâs chemical manufacturing facility in Orange, Texas. Specifically, Plaintiffs claim they were denied training, promotions, and overtime opportunities, and were demoted in a racially-discriminatory manner. Moreover, Plaintiffs assert that their abusive working conditions rendered the workplace a âhostile work environment.â Plaintiffs filed their Original Complaint on June 29, 2012, and filed their First Amended Complaint on February 4, 2013, asserting violations of the following: Title VII of the Civil Rights Act of 1964 (âTitle VIIâ), 42 U.S.C. §§ 2000e-2000h-6; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Americans with Disabilities Act (âADAâ), 42 U.S.C. § 12112(a); the Lilly Ledbetter Fair Pay Act of 2009 (âLLFPAâ); and Executive Order 11246.
Plaintiffs are represented by the United Steel, Paper, and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (âUSWâ or âthe Unionâ), and the terms of their employment with Firestone are governed by a Collective Bargaining Agreement (the âCBAâ) between the Union and Firestone.
All eight Plaintiffs allege slightly different facts.
A. Paul Brooks
Paul Brooks (âBrooksâ) was hired by Firestone in June 2000 and began working in a Clevel position in the warehouse. Brooks asserts Title VII and § 1981 claims for failure' to train, failure to promote, discriminatory demotion, denial of overtime, and hostile work environment. Additionally, Brooks alleges causes of action under the LLFPA and Executive Order 11246.
B. Ellis Byrd
Ellis Byrd (âByrdâ) was hired by Firestone in 1996 and began working in a C-level position in the box-building department. Byrd asserts Title VII and § 1981 claims for failure to train, failure to promote, denial of overtime, and hostile work environment. Additionally, Byrd alleges causes of action under the LLFPA and Executive Order 11246.
C. Jonathan Greenaway
Jonathan Greenaway (âGreenawayâ) was hired by Firestone in June 2000 and began working in a C-level position in the box-building department. Greenaway asserts Title VII and § 1981 claims for failure to train, failure to promote, discriminatory demotion, denial of overtime, and hostile work environment. Additionally, Greena-way alleges causes of action under the LLFPA and Executive Order 11246. Finally, unlike the other Plaintiffs, Greena-way also seeks relief under the ADA.
D. Samuel Johnson
Samuel Johnson (âS. Johnsonâ) was hired by Firestone in June 1977 and began working in a C-level position in the warehouse. S. Johnson asserts Title VII and § 1981 claims for failure to train, failure to promote, discriminatory demotion, denial of overtime, and hostile work environment. Additionally, S. Johnson alleges causes of action under the LLFPA and Executive Order 11246.
Wayne Johnson (âW. Johnsonâ) worked at Firestone from November 2000 until September 2010. W. Johnson asserts Title VII and § 1981 claims for'failure to train, failure to promote, discriminatory- demotion, denial of overtime, and hostile work environment. Additionally, W. Johnson alleges causes of action under the LLFPA and Executive Order 11246.
F. Ricky Ruffin
Ricky Ruffin (âRuffinâ) was hired by Firestone in March 2000 and began working in a Clevel position in the warehouse. Ruffin asserts Title VII and § 1981 claims for failure to train, failure to promote, discriminatory demotion, denial of overtime, and hostile work environment. Additionally, Ruffin alleges causes of action under the LLFPA and Executive Order 11246.
G. Michael Spencer
Michael Spencer (âSpencerâ) was hired by Firestone in 1993 and began working in a Clevel position in the box-building department. Spencer asserts Title VII and § 1981 claims for failure to train, failure to promote, denial of overtime, and hostile work environment. Additionally, Spencer alleges causes of action under the LLFPA and Executive Order 11246.
H.Erick Guillory
Erick Guillory (âGuilloryâ) was hired by Firestone in 1998 and began working in a C-level position in the box-building department. Guillory asserts Title VII and § 1981 claims for failure to train, failure to promote, denial of overtime, and hostile work environment. Additionally, Guillory alleges causes of action under the LLFPA and Executive Order 11246.
Each Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (âEEOCâ) on varying dates between August 2009 and March 2010. On December 19, 2012, following a two-year investigation, the EEOC sent Plaintiffsâ counsel a determination letter stating it did ânot see how [Plaintiffs] can meet their statutory obligation on the underlying or amended charges.â
II. Analysis
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted âif 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.â Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which 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); QBE Ins. Corp. v. Brown & Mitchell, Inc., 591 F.3d 439, 442 (5th Cir.2009); Warfield, v. Byron, 436 F.3d 551, 557 (5th Cir.2006); Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005). Where a defendant moves for summary judgment on the basis of an affirmative defense and, thus, bears the ultimate burden of persuasion, âevidence must be adduced supporting each element of the defense and demonstrating the lack of any genuine issue of material fact with regard thereto.â Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002); see Exxon Corp. v. Oxxford Clothes, Inc., 109 F.3d 1070, 1074 (5th Cir.1997), cert. denied, 522 U.S. 915, 118 S.Ct. 299, 139 L.Ed.2d 231 (1997); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). To warrant judgment in its favor, the movant â â âmust establish beyond peradventure all of the essĂŠntial elements of the defense.â â â Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir.2003) (emphasis in original) (quoting Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th Cir.2002) (quoting Fontenot, 780 F.2d at 1194)); accord Addicks Servs., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 293 (5th Cir.2010).
âA fact is material only if its resolution would affect the outcome of the action .... â Wiley v. State Farm, Fire & Cas. Co., 585 F.3d 206, 210 (5th Cir.2009); accord Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir.2012); Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir.2005). âFactual disputes that are irrelevant or unnecessary will not be counted.â Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). âAn issue is âgenuine â if it is real and substantial, as opposed to merely formal, pretended, or a sham.â Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir.2001) (emphasis in original). Thus, a genuine issue of material fact exists âif the evidence is such that a 'reasonable jury could return a verdict for the nonmoving party.â Anderson, 477 U.S. at 248, 106 S.Ct. 2505; accord Poole, 691 F.3d at 627; Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir.2010); Wiley, 585 F.3d at 210; EMCASCO Ins. Co. v. Am. Intâl Specialty Lines Ins. Co., 438 F.3d 519, 523 (5th Cir.2006). The moving party, however, need not negate the elements of the nonmovantsâ case. See Bayle, 615 F.3d at 355; Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)); Millennium Petrochemicals, Inc. v. Brown & Root Holdings, Inc., 390 F.3d 336, 339 (5th Cir.2004).
Once a proper motion has been made, the nonmoving parties may not rest upon mere allegations or denials in the pleadings but must present affirmative evi
Furthermore, âonly reasonable inferences in favor of the nonmoving party can be drawn from the evidence.â Mills v. Warner-Lambert Co., 581 F.Supp.2d 772, 779 (E.D.Tex.2008) (citing Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 469 n. 14, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992)); accord Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir.2012). âIf the [nonmoving partyâs] theory is ... senseless, no reasonable jury could find in its favor, and summary judgment should be granted.â Eastman Kodak Co., 504 U.S. at 468-69, 112 S.Ct. 2072; accord Shelter Mut. Ins. Co. v. Simmons, 543 F.Supp.2d 582, 584-85 (S.D.Miss.), aff'd, 293 Fed.Appx. 273 (5th Cir.2008). The nonmovantsâ burden is not satisfied by â âsome metaphysical doubt as to the material facts,â by âconclusory allegations,â by âunsubstantiated assertions,â â by speculation, by the mere existence of some alleged factual dispute, or âby only a âscintillaâ of evidence.â Little, 37 F.3d at 1075 (quoting Lujan v. Natâl Wildlife Fedân, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348; Hopper v. Frank, 16 F.3d 92, 97 (5th Cir.1994); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir.1994)); accord Thibodeaux v. Vamos Oil & Gas Co., 487 F.3d 288, 294-95 (5th Cir.2007); Warfield, 436 F.3d at 557; Boudreaux, 402 F.3d at 540. âUnsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.â Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir.2003); accord RSR Corp. v. Intâl Ins. Co., 612 F.3d 851, 857 (5th Cir.2010); Hugh Symons Grp., plc v. Motorola, Inc., 292 F.3d 466, 468 (5th Cir.), cert. denied, 537 U.S. 950, 123 S.Ct. 386, 154 L.Ed.2d 295 (2002); see Hockman v. Westward Commcâns, LLC, 407 F.3d 317, 332 (5th Cir.2004).
Summary judgment is mandated if the nonmovants fail to make a showing sufficient to establish the existence of an element essential to their case on which they bear the burden of proof at trial. Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993); Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548;
A. Title VII
Title VII provides that â[i]t shall be an unlawful employment practice for an employer-(l) 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 individualâs race, color, religion, sex, or national origin.â 42 U.S.C. § 2000e-2(a)(1); accord Univ. of Tex. Sw. Med. Ctr. v. Nassar, â U.S. â, 133 S.Ct. 2517, 2525, 186 L.Ed.2d 503 (2013); Vance v. Ball State Univ., â U.S. â, 133 S.Ct. 2434, 2440, 186 L.Ed.2d 565 (2013); Desert Palace, Inc. v. Costa, 539 U.S. 90, 92-93, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). âThe purposes of Title VII are to achieve equality of employment opportunity and to make persons whole for injuries suffered on account of unlawful employment discrimination.â Floca v. Homcare Health Servs., Inc., 845 F.2d 108, 111 (5th Cir.1988) (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 417, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975)); see also Nassar, â U.S. â, 133 S.Ct. at 2522.
âTitle VII discrimination can be established through either direct or circumstantial evidence.â Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir.2003) (citing Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir.2001), cert. denied, 535 U.S. 1078, 122 S.Ct. 1961, 152 L.Ed.2d 1022 (2002)); accord Washburn v. Harvey, 504 F.3d 505, 510 (5th Cir.2007); Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir.2007); McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir.2007). ââDirect evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.ââ West v. Nabors Drilling USA, Inc., 330 F.3d 379, 384 n. 3 (5th Cir.2003) (quoting Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir.2002), cert. denied, 539 U.S. 926, 123 S.Ct. 2572, 156 L.Ed.2d 602 (2003)); accord Ogletree v. Glen Rose Indep. Sch. Dist., 443 Fed.Appx. 913, 917 (5th Cir.2011); Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 349 (5th Cir.2008); Jones v. Robinson Prop. Group, LP, 427 F.3d 987, 992 (5th Cir.2005).
âAbsent direct evidence of discriminatory intent, as is typically the case, proof via circumstantial evidence is assembled using the framework set forth in the seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 ... (1973).â Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir.2000); see Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097; Fahim, 551 F.3d at 349; Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589, 593 (5th Cir.2007); Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 346 (5th Cir.2007). This method of analysis is utilized for both Title VII and § 1981 claims. See Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989); Mendoza v. Bell Helicopter, 548 Fed.Appx. 127, 128 (5th Cir.2013); Jones, 427 F.3d at
Where, as here, there is no direct evidence of discrimination, a plaintiff must initially establish a prima facie case by satisfying a multi-factor test from which a discriminatory motive may be inferred, thus creating a rebuttable presumption of intentional discrimination. See Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097; Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 362-63 (5th Cir.2013); Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 892 (5th Cir.2012); Alvarado, 492 F.3d at 611; Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir.2007). âTo establish a prima facie case, a plaintiff need only make a very minimal showing.â Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir.1996) (quotation omitted)); accord Turner, 675 F.3d at 892 (âThe burden of establishing a prima facie case of disparate treatment is not onerous.â); Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir.1999).
Once the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate â but not prove â a legitimate, nondiscriminatory reason for its employment decision. Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n. 3, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003); Reeves, 530 U.S. at 142, 120 S.Ct. 2097; McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817; Haire, 719 F.3d at 363; Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir.2010); Fahim, 551 F.3d at 349; Alvarado, 492 F.3d at 611; Nasty 492 F.3d at 593. âThis burden is one of production, not persuasion; it âcan involve no credibility assessment.â â Reeves, 530 U.S. at 142, 120 S.Ct. 2097 (quoting St. Maryâs Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), overruled in part on other grounds by Gross v. FBL Fin. Servs., Inc. 557 U.S. 167, 169-70, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009)); accord Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir.2011); Alvarado, 492 F.3d at 611. âThe [employer] must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, âif believed by the trier off act,â would support a finding that unlawful discrimination was not the cause of the employment action.â Bauer, 169 F.3d at 966 (quoting Hicks, 509 U.S. at 507, 113 S.Ct. 2742) (emphasis in original)); accord Vaughn, 665 F.3d at 636; Brown v. Bunge Corp., 207 F.3d 776, 781 (5th Cir.2000).
If the employer meets its burden, â âthe McDonnell Douglas framework â with its presumptions and burdensâ â disappears], ... and the sole remaining issue [is] âdiscrimination vel non.â â Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097 (quoting Hicks, 509 U.S. at 510, 113 S.Ct. 2742); Black v. Pan Am. Labs., L.L.C., 646 F.3d 254, 271 (5th Cir.2011)); Nasti, 492 F.3d at 593j Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir.), cert. denied, 546 U.S. 1061, 126 S.Ct. 798, 163 L.Ed.2d 627 (2005); Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir.2005). âAlthough intermediate eviden-tiary burdens shift back and forth under this framework, â[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.â â Reeves, 530 U.S. at 143, 120 S.Ct. 2097 (quoting Tex. Depât of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)); accord Hicks, 509 U.S. at 507, 113 S.Ct. 2742; Nasti, 492 F.3d at 593; Baker v. Am. Airlines, Inc., 430 F.3d 750, 753-54 (5th Cir.2005). In attempting to satisfy this burden, under the modified McDonnell Douglas approach, the plaintiff must offer sufficient evidence to create a genuine is
Under the pretext alternative approach, the âplaintiff may establish pretext either through evidence of disparate treatment or by showing that the employerâs proffered explanation is false or âunworthy of credence.â â Laxton, 333 F.3d at 578 (citing Reeves, 530 U.S. at 143, 120 S.Ct. 2097; Wallace, 271 F.3d at 220); accord Nasti, 492 F.3d at 593. âAn explanation is false or unworthy or credence if it.is not the real reason for the adverse employment action.â Laxton, 333 F.3d at 578 (citing Sandstad, 309 F.3d at 899); accord Vaughn, 665 F.3d at 637; Burrell, 482 F.3d at 412. â[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employerâs explanation.â Reeves, 530 U.S. at 147, 120 S.Ct. 2097 (emphasis in original); accord Carmona v. Sw. Airlines Co., 604 F.3d 848, 861 (5th Cir.2010); Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 476 (5th Cir.2005), cert. denied, 546 U.S. 1090, 126 S.Ct. 1027, 163 L.Ed.2d 855 (2006); Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 574 (5th Cir.2004); West, 330 F.3d at 385. âEvidence demonstrating that the employerâs explanation is false or unworthy of credence, taken together with the plaintiffs prima facie case, is likely to support an inference of discrimination without further evidence of defendantâs true motive.â Laxton, 333 F.3d at 578 (citing Sandstad, 309 F.3d at 897); accord Black, 646 F.3d at 276; Machinchick, 398 F.3d at 351 (citing Reeves, 530 U.S. at 147-48, 120 S.Ct. 2097). â â[OJnce the employerâs justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.â â Russell, 235 F.3d at 223 (quoting Reeves, 530 U.S. at 147, 120 S.Ct. 2097); accord Black, 646 F.3d at 276; Laxton, 333 F.3d at 578; West, 330 F.3d at 385. Hence, the plaintiff need not, as a matter of course, introduce additional, independent evidence of discrimination to avoid summary judgment. See Reeves, 530 U.S. at 148, 120 S.Ct. 2097; Ratliff v. City of Gainesville, 256 F.3d 355, 361-62 (5th Cir.2001); Blow v. City of San Antonio, 236 F.3d 293, 298 (5th Cir.2001); Russell, 235 F.3d at 223.
Ultimately, â[wjhether summary judgment is appropriate depends on numerous factors, including âthe strength of the plaintiffs prima facie case, the probative value of the proof that the employerâs explanation is false, and any other evidence that supports the employerâs caseâ â that properly may be considered by the court when ruling on a motion for summary judgment. Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir.2002) (quoting Reeves, 530 U.S. at 148-49, 120 S.Ct. 2097); accord Machinchick, 398 F.3d at 351 n. 14; Laxton, 333 F.3d at 579;
Because the plaintiff has the ultimate burden of proving intentional discrimination, â[a]n employer is entitled to judgment as a matter of law on this ultimate question âif the evidence taken as a whole would not allow a jury to infer that the actual reason for the [employerâs decision] was discriminatory.â â Brown v. Kinney Shoe Corp., 237 F.3d 556, 565 (5th Cir.), cert. denied, 534 U.S. 817, 122 S.Ct. 45, 151 L.Ed.2d 17 (2001) (quoting Vadie v. Miss. State Univ., 218 F.3d 365, 372 (5th Cir.2000), cert. denied, 531 U.S. 1150, 121 S.Ct. 1092, 148 L.Ed.2d 966 (2001)). âA mere scintilla of evidence of pretext does not create an issue of material fact in all cases.â Crawford, 234 F.3d at 902 (citing Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 301 (5th Cir.2000), cert. denied, 531 U.S. 1145, 121 S.Ct. 1081, 148 L.Ed.2d 957 (2001)). âIt is, therefore, possible for a plaintiffâs evidence to permit a tenuous inference of pretext and yet be insufficient to support a reasonable inference of discrimination.â Crawford, 234 F.3d at 903 (citing Travis v. Bd. of Regents of the Univ. of Tex. Sys., 122 F.3d 259, 263 (5th Cir.1997), cert. denied, 522 U.S. 1148, 118 S.Ct. 1166, 140 L.Ed.2d 176 (1998)). âThe determination must be made on a case-by-case basis, depending on the nature, extent, and quality of the evidence, as to whether a jury could reasonably infer discrimination.â Id.
Plaintiffsâ race-based Title VIIâ claims can be divided into five categories: (1) failure to train; (2) failure to promote; (3) discriminatory demotion; (4) denial of overtime; and (5) hostile work environment. Firestone moves for summary judgment on the basis that Plaintiffsâ âfailure to trainâ and âfailure to promoteâ claims are time-barred; that nondiscriminatory reasons account for any demotions; and that Plaintiffs failed to plead hostile work environment claims. Firestone does not directly address Plaintiffsâ denial of overtime claims.
1. Failure to Train
Plaintiffs each assert âfailure to trainâ causes of action. In their, motions for summary judgment, Firestone argues that Plaintiffsâ claims fail as a matter of law because âfailure to trainâ claims are not actionable. Specifically, Firestone asserts that' in order to establish a prima facie case of discrimination based on dispĂĄrate treatment, a plaintiff must show that he suffered one or more âadverse employ
To establish a prima, facie case of disparate treatment, a plaintiff must show that:
(1) he is a member of a protected class;
(2) he is qualified for the position;
(3) he suffered an adverse employment action; and
(4) others outside the class who were similarly situated were treated more favorably than he.
See Nasti, 492 F.3d at 593; Keelan, 407 F.3d at 339; Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir.2005) (citing Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir.2001)); Laxton, 333 F.3d at 579 n. 1; Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).
He must demonstrate that employees outside his protected class received more favorable treatment under nearly identical circumstances. See Turner, 675 F.3d at 893-96; Bryant, 413 F.3d at 478; Keelan, 407 F.3d at 345; Perez v. Tex. Depât of Crim. Justice, 395 F.3d 206, 210 (5th Cir.2004), cert. denied, 546 U.S. 976, 126 S.Ct. 545, 163 L.Ed.2d 459 (2005) (emphasizing that assessment of similarity of employees must be viewed from employerâs perspective); Wallace, 271 F.3d at 221. â âThe employment actions being compared will be deemed to have been taken under nearly identical circumstances when the employees being compared held the same job or responsibilities, shared the same supervisor or had their employment status determined by the same person, and have essentially comparable violation histories.â â Turner, 675 F.3d at 893 (quoting Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir.2009)); accord Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 659 (5th Cir.), cert. denied, -U.S.-, 133 S.Ct. 136, 184 L.Ed.2d 29 (2012). Also, âthe conduct that drew the adverse employment decision must have been ânearly identicalâ to that of the proffered comparator who allegedly drew dissimilar employment decisions.â Lee, 574 F.3d at 260. But â[e]ach employeeâs track record at the company need not comprise the identical number of identical infractions, albeit these records must be comparable.â Id. at 260-61.
The Fifth Circuit continues to hold that with respect to discrimination claims, adverse employment actions include only ultimate employment decisions. Thompson v. City of Waco, 764 F.3d 500, 503-04 (5th Cir.2014); Phillips v. Leggett & Platt, Inc., 658. F.3d 452, 456 n. 2 (5th Cir.2011); see also McCoy, 492 F.3d at 559 (reasoning that the Supreme Courtâs holding in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) applies solely to retaliation claims). Title VII was only designed to address âultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.â â Thompson, 764 F.3d at 503-04 (quoting McCoy, 492 F.3d at 560); see also Preston v. Tex. Depât of Family & Prot. Servs., 222 Fed.Appx. 353, 358 (5th Cir.2007) (quoting Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir.1995)), overruled on other grounds by White, 548 U.S. at 67, 126 S.Ct. 2405. â[A]n employment action that âdoes not affect job duties, compensation, or benefitsâ is not an adverse employment action.â Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir.2004) (quoting Banks v. E. Baton Rouge Parish Sch. Bd.,
Actionable adverse employment. actions are generally limited to tangible employment actions that constitute a âsignificant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.â Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); see Robison v. Tex. Depât of Crim. Justice, 94 Fed.Appx. 225, 228 (5th Cir.2004) (affirming district courtâs grant of summary judgment as to plaintiffs Title YII claim on the basis that plaintiff suffered no adverse employment action where he failed to submit evidence that he was âfired, reassigned, denied promotion, suffered a. change in benefits, or disciplinedâ); Banks, 320 F.3d at 575; Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir.2001); Watts v. Kroger Co., 170 F.3d 505, 510 (5th Cir.1999); Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 878 (5th Cir.1999); Webb v. Cardiothoracic Surgery Assocs. of N. Tex., P.A., 139 F.3d 532, 540 (5th Cir.1998); accord Thompson, 764 F.3d at 503-04. An ultimate employment decision, in itself or through its direct consequences, must effect a material change in the terms or conditions of employment. See Burger, 168 F.3d at 879; Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.1997). âAn employerâs action does not rise to the level of an âadverse employment actionâ when it fails to have more than âmere tangential effect on a possible future ultimate employment decision.â â Mota, 261 F.3d at 519 (quoting Walker v. Thompson, 214 F.3d 615, 629 (5th Cir.2000), overruled on other grounds by White, 548 U.S. at 67, 126 S.Ct. 2405; accord Clayton v. Rumsfeld, 106 Fed.Appx. 268, 270 (5th Cir.2004); see Messer v. Meno, 130 F.3d 130, 140 (5th Cir.1997), cert. denied, 525 U.S. 1067, 119 S.Ct. 794, 142 L.Ed.2d 657 (1999); Farquhar v. Tex. Alcoholic Beverage Commân, No. A-12-CA-1042-SS, 2014 WL 2700476, at *3 (W.D.Tex. June 13, 2014) (quoting McCoy, 492 F.3d at 559).
â[Employment actions are not adverse where pay, benefits, and level of responsibility remain the same.â Watts, 170 F.3d. at 512; accord Mora v. Ashcroft, 142 Fed.Appx. 206, 207 (5th Cir.2005); Mota, 261 F.3d at 522. â âAlthough actions short of termination may constitute an adverse employment action within the meaning of the statute, not everything that makes an employee unhappy is an actionable adverse action.â â Greaser v. Mo. Depât of Corr., 145 F.3d 979, 984 (8th Cir.), cert. denied, 525 U.S. 1056, 119 S.Ct. 620, 142 L.Ed.2d 559 (1998) (quoting Manning v. Metro. Life Ins. Co., 127 F.3d 686, 692 (8th Cir.1997)); accord Garrison v. Gambro, Inc., 428 F.3d 933, 939 (10th Cir.2005); Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir.1997); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996). Interlocutory or mediate decisions, even those that can lead to an ultimate employment decision, are not adverse employment actions for purposes of the employment discrimination statutes. See
Notably, the Fifth Circuit has consistently declined to find that a denial of training can constitute an adverse employment action. Hollimon v. Potter, 365 Fed.Appx. 546, 549 (5th Cir.2010) (â[A] refusal to train is not an adverse employment action under Title VII.â) (citing Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 406 (5th Cir.1999)); Roberson v. Game Stop/Babbageâs, 152 Fed.Appx. 356, 361 (5th Cir.2005), cert. denied, 548 U.S. 924, 126 S.Ct. 2982, 165 L.Ed.2d 986 (2006) (finding no adverse employment action where plaintiff was denied training on a computer system); Shackelford, 190 F.3d at 406 (finding no adverse employment action where plaintiff was denied access to training on specialized filing software); Dollis, 77 F.3d at 779; Jones v. BP Amoco Chem. Co., No. H-10-1399, 2012 WL 1424986, at *5 (S.D.Tex. Apr. 23, 2012) (holding that plaintiffs âfailure to trainâ claim lacked merit because it was not an adverse employment action); Wojciechowski v. Natâl Oilwell Varco, L.P., 763 F.Supp.2d 832, 857 (S.D.Tex.2011) (holding that plaintiffs failure to train claim failed under Fifth Circuit precedent); Veal v. Schlumberger, No. Civ. A. H-04-3550, 2006 WL 237006, at *9 (S.D.Tex. Jan. 31, 2006) (dismissing plaintiffs denial of training claims because plaintiff did not show an adverse employment action).
In light of clear Fifth Circuit precedent, as well as Plaintiffsâ failure to support their position with any law, the court finds that Plaintiffsâ Title VII failure to train claims do not implicate any adverse employment actions. Consequently, these claims do not survive summary judgment.
Further, even assuming arguendo that Plaintiffsâ âfailure to trainâ claims are actionable, the vast majority of them are time-barred.
In Morgan, the [United States] Supreme Court noted that â[a] discrete retaliatory or discriminatory act âoccurredâ on the day that it âhappened.â â 536 U.S. at 110, 122 S.Ct. 2061; see also Nelson v. Univ. of Tex. at Dallas, 535 F.3d 318, 323 (5th Cir.2008). âA party, therefore, must file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it.â Morgan, 536 U.S. at 110, 122 S.Ct. 2061; accord Ledbetter, 550 U.S. at 647, 127 S.Ct. 2162; Pegram, 361 F.3d at 279. Certain discrete acts of discrimination, such as termination, failure to promote, denial of transfer, or refusal to hire, are âeasy to identify.â Morgan, 536 U.S. at 114, 122 S.Ct. 2061; accord Ledbetter, 550 U.S. at 647, 127 S.Ct. 2162; Pegram, 361 F.3d at 280 n. 5. Although not an exhaustive list, each discrete act âconstitutes a separate actionable unlawful employment practice.â Morgan, 536 U.S. at 114, 122 S.Ct. 2061; Pegram, 361 F.3d at 280 n. 5.
â[Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.â Morgan, 536 U.S. at 113, 122 S.Ct. 2061; accord Pegram, 361 F.3d at 279; Mack v. John L. Wortham & Son, L.P., No. H-10-4881, 2012 WL 5456117, at *5 (S.D.Tex. Nov. 7, 2012). Hence, âclaims based on discrete acts are timely only where such acts occurred within the limitations period.â Pegram, 361 F.3d at 279 (citing Morgan, 536 U.S. at 113, 122 S.Ct. 2061); Mack, 2012 WL 5456117, at *5. Moreover, â[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act.â Morgan, 536 U.S. at 113, 122 S.Ct. 2061; accord Pegram, 361 F.3d at 279; Liddell v. Northrop Grumman Shipbuilding, Inc., 836 F.Supp.2d 443, 451 (S.D.Miss.2011). Any act occurring outside the applicable filing period âmay constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.â United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); accord Morgan, 536 U.S. at 112, 122 S.Ct. 2061; Ramsey v. Henderson, 286 F.3d 264, 270 (5th Cir.2002); Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 n. 12 (5th Cir.1995). â[C]urrent effects alone cannot breathe life into prior, uncharged discrimination.â Ledbetter, 550 U.S. at 619, 127 S.Ct. 2162; Garcia v. Brockway, 526 F.3d 456, 463 (9th Cir.), cert. denied, 555 U.S. 1069, 129 S.Ct. 724, 172 L.Ed.2d 725 (2008).
Here, Plaintiffsâ âfailure to trainâ claims are considered discrete acts. Pegram, 361 F.3d at 280 (âdiscrete acts such
a.Brooks
Brooks fails to direct the court to any evidence specifying the date(s) on which his alleged âfailure to trainâ occurred. In response to Firestoneâs first set of interrogatories which asked Brooks to identify âevery instance in which [he] sought and [was] denied training -by Defendant,â Brooks listed only one year â 2003âand did not specify an exact date or month. See Docket No. 59, Exhibit 3, Page 3. Nonetheless, Brooks argues that Firestoneâs limitations argument is irrelevant due to the fact that the EEOC issued each Plaintiff a Letter of âIntent to Sue.â
Brooksâs argument is not well taken because a right-to-sue letter does not immunize a plaintiff from statutorily-mandated timeliness requirements. Here, 42 U.S.C. § 2000e â 5(e)(1) is clear: a plaintiff must file his charge of discrimination with the EEOC or the designated state agency within âthree hundred days after the alleged unlawful employment practice occurred.â Id. Indeed, the letter the EEOC sent to Plaintiffsâ counsel on February 10, 2012, stated that there were âconcerns about the timeliness of several of the issues raised in almost all of the charges and that the Commissionâs investigative authority is limited to issues filed within 300 days of the disputed action.â See Docket No. 61, Exhibit 4. Accordingly, the court rejects Brooksâs contention that the EEOCâs right-to-sue letter shields him from complying with the applicable statute of limitations.
Brooksâs original - chĂĄrge of discrimination was filed on December 3, 2009, and his amended charge was filed on March 9, 2010. As a result, any instances of an alleged âfailure to trainâ that occurred before February 6, 2009 â 300 days before the original charge was filed â are time-barred. Here, Brooksâs alleged instance of a âfailure to trainâ in 2003 occurred several years before his February 6, 2009, deadline. Consequently, the claim is time-barred.
b.Byrd
Byrd fails to direct the court to evidence specifying the date(s) on which his alleged âfailure to trainâ occurred. Firestone notes, however, that at deposition, Byrd did not specify any âdenial of trainingâ that occurred after the middle of 2008. See Docket No. 60, Exhibit 2, Page 44. Byrdâs charge of discrimination was filed on December 9, 2010. As a result, his allegations of a âfailure to trainâ occurred more than 300 days before the charge was filed. Hence, these claims are time-barred.
c.Greenaway
Greenaway fails to direct the court to evidence specifying the date(s) he was denied training. Firestone notes, however, that at deposition, Greenaway maintained that he was denied training on three occasions. See Docket No. 61, Exhibit 2, Pages 69-80.
The first incident allegedly occurred in 2008 when the BCP unit was still operational and Greenaway requested to train for an A-operator position in the BCP unit. Id. at 78-80. Greenawayâs charge of discrimination was filed on March 9, 2010. This incident occurred more than 300 days before the charge was filed and is thus time-barred.
The second incident allegedly occurred in 2011 when Greenaway was denied training for a vacation relief job. Id. at 70-72. The third incident allegedly occurred in
d. S. Johnson
S. Johnson fails to direct the court to evidence specifying the date(s) on which he was denied training. Firestone notes, however, that at deposition, S. Johnson vaguely referenced three instances in which he was denied training. The first incident allegedly occurred between 1997 and 2003. See Docket No. 62, Exhibit 2, Page 8. The second incident allegedly occurred sometime in 2009 when S. Johnson was purportedly denied training for a vacation relief recovery job. Id. at 32. The third incident allegedly occurred in 2012 when he was denied training on the reinst-ituted 3rd Crumb line. Id. at 81.
S, Johnsonâs charge of discrimination was originally filed on December 3, 2009, and was later amended on March 9, 2010. The first incident â -occurring between 1997 and' 2003 â occurred more than 300 days before the original charge was filed and is thus time-barred. As previously discussed, S. Johnsonâs 2009 and 2012 âfailure to trainâ claims, while not time-barred, are not viable because a âfailure to trainâ does not constitute an adverse employment action.
e. W. Johnson
W. Johnson fails to direct the court to evidence specifying the date(s) on which his alleged âfailure to trainâ occurred. Firestone points out, however, that at deposition, W. Johnson identified three instances in which he was reportedly denied training. The first incident occurred in 2005 when W. Johnson was purportedly denied training for a B-level Drum Dryer position. See Docket No. 63, Exhibit 2, Page 26. The second incident occurred sometime in 2004 or 2005 when W. Johnson was reportedly denied training for a B-level position in utilities. Id. at 30. The third incident occurred âpre-2007â when W. Johnson claims he was refused training for a B-level recovery unit job. Id. at 39.
W. Johnsonâs original charge of discrimination was filed on December 3, 2009, and was amended on March 9, 2010. As a result, each instance mentioned above occurred more than 300 days before the original charge was filed. Consequently, these claims are untimely and therefore time-barred.
f. Ruffin
Ruffin fails to direct the court to evidence specifying the date(s) on which he was allegedly denied training. At deposition, however, Ruffin testified that he was denied training for âpreferredâ B-level positions in both 2003 and 2006. See Docket No. 76, Exhibit 9, Pages 12, 22. Ruffinâs charge of discrimination was filed on March 9, 2010. As a result, these instances occurred more than 300 days before the charge was filed and are thus time-barred.
g. Spencer
Spencer fails to direct the court to evidence specifying the date(s) on which he was denied training. Firestone notes, however, that at deposition, Spencer repeatedly stated that he did not remember when he was denied training. When Firestone asked Spencer whether he had requested training in the week preceding the deposition, Spencer declared that he âdid not remember.â See Docket No. 76, Exhibit 11, Page 29. In fact, when asked
Spencerâs EEOC charge was filed on March 9, 2010. As a result, the aforementioned incidents occurred more than 300 days before the charge was filed and are thus time-barred.
h. Guillory
Guillory fails to direct the court to evidence specifying the date(s) he was denied training. Firestone notes, however, that at deposition, Guillory stated that he was denied training in six different positions âabout 50 times apiece.â See Docket No. 66, Exhibit 2, Page 36. Despite his claim that he was denied training on 300 separate occasions, Guillory specifies only one instance that allegedly occurred in 2008. Id. at 21. Guillory contends that he was denied training for a Drum Dryer Recovery position from April 21, 2008, until the Di;um Dryers were permanently shut down as a result of Hurricane Ike in September 2008. Id. at 21.
Guilloryâs charge of discrimination was filed on March 9, 2010. As a result, his 2008 claim occurred more than 3(30 days before the charge was filed and is thus time-barred.
2. Failure to Promote
Plaintiffs next allege that they were denied promotions on account .of their race in violation of Title VII. Firestone first argues that nearly all of Plaintiffsâ promotion claims are barred by limitations. Second, Firestone asserts that the one claim not barred by limitationsâ Greenawayâs 2012 claim â nonetheless fails because Greenaway did not exhaust his administrative remedies as required under Title VII. Plaintiffs do not respond to Firestoneâs arguments.
Plaintiffsâ âfailure to promoteâ claims are also discrete acts. Morgan, 536 U.S. at 114, 122 S.Ct. 2061 (âDiscrete acts such as ... failure to promote ... are easy to identify.â); accord Ledbetter, 550 U.S. at 647, 127 S.Ct. 2162; Pegram, 361 F.3d at 280 n. 5. As a result, in order to maintain a Title VII claim, Plaintiffs must have filed their charges of discrimination with the EEOC within 300 days of when any alleged âfailure to promoteâ occurred. 42 U.S.C. § 2000e â 5(e)(1); Lewis, 560 U.S. at 210-11, 130 S.Ct. 2191.
a. Brooks
Brooks fails to direct the court to evidence specifying the date(s) on which he was denied a promotion. Firestone notes, however, that at deposition, Brooks testified that he was denied a promotion âsometime between 2000 and 2003.â See Docket No. 59, Exhibit 2, Page 12. Further, in his EEOC charge, Brooks claimed that he was denied a promotion âin the latter part of 2008.â
Brooksâs EEOC charge was filed on March 9, 2010. As a result, the aforementioned incidents occurred more than 300 days before the charge was filed and are thus time-barred.
b. Byrd
Byrd fails to direct the court to evidence specifying the date(s) on which he was denied. a promotion. Firestone acknowledges, however, that Byrd stated at deposition that he was denied a promotion at a time when a different union, the Oil, Chemical and Atomic Workers International Union (âOCAWâ), represented workers at the Orange Plant. See Docket No.
Byrdâs charge of discrimination was filed on March 9, 2010. Therefore, both incidents mentioned above occurred more than 300 days before the charge was filed. Hence, the claims are time-barred,
c. Greenaway
Greenaway fails to direct the court to evidence specifying the date(s) on which he was denied a promotion. Firestone asserts, however, that at deposition, Greena-way stated that he was denied promotions on account of his race on seven occasions. Six out of the seven alleged promotion denials occurred in 2002, 2007, and 2008. See Docket No. 61, Exhibit 2, Pages 10,11, 12, 16, 20^ 23, and 29. Those claims occurred more than 300 days before the charge was filed and are thus time-barred.
Firestone argues that the seventh incident, which allegedly occurred in 2012, fails because Greenaway did not exhaust his administrative remedies. âTitle VII requires employees to exhaust their administrative remedies before seeking judicial relief.â McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir.2008) (citing Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir.2006)). It is well settled that courts may not entertain claims brought under Title VII as to which an aggrieved party has not first exhausted his administrative remedies by filing a charge of discrimination with the EEOC. See Filer v. Donley, 690 F.3d 643, 647 (5th Cir.2012); McClain, 519 F.3d at 273; Taylor v. Books A Million, 296 F.3d 376, 378-79 (5th Cir.2002), cert. denied, 537 U.S. 1200, 123 S.Ct. 1287, 154 L.Ed.2d 1041 (2003); see also 42 U.S.C. § 2000e-5(e)(1). While not uniformly viewed as a jurisdictional prerequisite, the filing of an EEOC charge â âis a precondition to filing in district court.ââ Taylor, 296 F.3d at 379 (quoting Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir.1996) (citing Cruce v. Brazosport Indep. Sch. Dist., 703 F.2d 862, 863 (5th Cir.1983))).
The primary purpose of the EEOC charge is to provide notice to the respondent of the discrimination alleged and to activate the voluntary compliance and conciliation functions of the EEOC. See Manning v. Chevron Chem. Co., 332 F.3d 874, 878-79 (5th Cir.2003), cert. denied,. 540 U.S. 1107, 124 S.Ct. 1060, 157 L.Ed.2d 892 (2004); Fine v. GAF Chem. Corp., 995 F.2d 576, 577-78 (5th Cir.1993); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970). The charge triggers an investigation by the EEOC so, through a conciliation process, voluntary compliance may be obtained and discriminatory practices and policies eliminated. See Barnes v. Levitt, 118 F.3d 404, 409 (5th Cir.1997), cert. denied, 523 U.S. 1136, 118 S.Ct. 1839, 140 L.Ed.2d 1090 (1998); EEOC v. Hearst Corp., 103 F.3d 462, 464 (5th Cir.1997). Requiring the plaintiff first to state his allegations of employment discrimination in an EEOC charge serves âCongressâ intention to promote conciliation rather than litigation in the Title VII context.â Burlington Indus., 524 U.S. at 764, 118 S.Ct. 2257.
Civil complaints filed under Title VII may only encompass discrimination â âlike or related to allegation^] contained in the [EEOC] charge and growing out of such allegations during the pendency of the case before the Commission.â â McClain, 519 F.3d at 273 (quoting Sanchez, 431 F.2d at 466); Natâl Assân of Govât Emps. v. City Pub. Serv. Bd., 40 F.3d 698,
Here, Greenawayâs EEOC charge makes no mention of any 2012 incident involving a failure to promote due to a disability. In fact, Greenaway failed to mention or even allude to any facts in his EEOC charge that would have put the EEOC on notice about the possibility of a âfailure to promoteâ claim resulting from an alleged disability. Consequently, Greenawayâs 2012 âfailure to promoteâ claim cannot be deemed to fall within the scope of the investigation that reasonably could have been expected to grow out of his EEOC charge. As a result, Greenaway failed to exhaust his administrative remedies before the EEOC and is now foreclosed from pursuing his 2012 failure to promote claim premised on an alleged disability in this forum.
d. S. Johnson
S. Johnson fails to direct the court to evidence specifying the date(s) on which he was denied a promotion. Firestone notes, however, that at deposition, S. Johnson referenced an incident involving a âfailure to promoteâ that allegedly occurred sometime before 2003. See Docket No. 62, Exhibit 2, Page 31. Additionally, in his EEOC charge, S.â Johnson claims that he was âpassed overâ for a promotion âin the latter part of 2008.â
S. Johnsonâs original EEOC charge was filed on December 3, 2009. Therefore, S. Johnsonâs promotion denials, which occurred more than 300 days before the charge was filed, are time-barred.
e. W. Johnson
W. Johnson fails to direct the court to evidence specifying the date(s) on which he
W. Johnsonâs EEOC charge was filed on December 3, 2009. As a result, his claims occurred more than 300 days before the charge was filed and are thus time-barred,
f.Ruffin
Ruffin fails to direct the court to evidence specifying the date(s) on which he was denied a promotion. In his original EEOC charge, Ruffin claims that on August 6, 2009, he was âbypassedâ for a B-operator promotion when two white employees with less seniority were promoted ahead of him. Ruffin also asserts that he was âpassed overâ for a promotion âin the latter part of 2008.â
â Ruffinâs 2009 âfailure to promoteâ claim is better characterized as a discriminatory demotion. At deposition, Ruffin stated that when the 3rd Crumb Unit was shut down in âAugust or October 2009,â he and several other workers were demoted from B-operator to C-operator positions while a less-senior white employee was permitted to continue working as a B-operator in contravention of the seniority system outlined in the CBA. See Docket No. 76, Exhibit 9, Pages 17-18. In essence, Ruf-fin argues that he should have retained the B-operator position while James Cooper (âCooperâ), who is white, should have been demoted to the C-operator position. Id. Because this incident did not involve a âpromotionâ per se, it will be analyzed in the subsequent section regarding discriminatory demotions.
Ruffinâs second âfailure to promoteâ allegedly occurred in 2008. His amended EEOC charge was filed on March 9, 2010. Therefore, because the incident occurred more than 300 days before the charge was filed, it is time-barred.
g. Spencer
Spencer fails to direct the court to evidence specifying the date(s) on which he was denied a promotion. In his EEOC charge, Spencer claims that he was âpassed overâ for a promotion âin the latter part of 2008.â
Spencerâs charge of discrimination was filed on March 9, 2010, more than 300 days after the aforementioned incident. Accordingly, the claim is time-barred.
h. Guillory
Guillory fails to direct the court to evidence specifying the date(s) on which he was denied a promotion. In his EEOC charge, which was filed on March 8, 2010, Guillory claims that he was âpassed overâfor a promotion âin the latter part of 2008.â Because the incident occurred more than 300 days before the charge was filed, it is time-barred.
3. Discriminatory Demotion
. Brooks, Greenaway, S. Johnson, W. Johnson, and Ruffin allege that they were demoted because of their race in violation of Title VII. Firestone argues that Plaintiffs were demoted pursuant to the nondiscriminatory âseniorityâ provision outlined in the CBA. With regard to S. Johnsonâs 2008 demotion claim, Firestone alternatively argues that the claim is barred by limitations. Plaintiffs do not respond to Firestoneâs arguments.
To establish a prima facie case of discriminatory demotion, a plaintiff must show that:
(1) he is- a member of a protected class;
(2) he was qualified for the position he occupied;
*844 (3) he was demoted; and
(4) he was replaced by someone outside the protected class or persons similarly situated who were not in the protected class retained their positions.
Caldwell v. Univ. of Houston Sys., 520 Fed.Appx. 289, 293 (5th Cir.2013) (citing Crawford, 234 F.3d at 902); Howard v. United Parcel Serv., 447 Fed.Appx. 626, 629 (5th Cir.2011); Bennett v. Total Minatome Corp., 138 F.3d 1053, 1060 (5th Cir.1998); LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 449 (5th Cir.1996).
a. Brooks, Greenaway, W. Johnson
Brooks, Greenaway, and W. Johnson (collectively, âDiscriminatory Demotion Plaintiffsâ) fail to direct the court to evidence specifying the date(s) on which they were demoted. In their EEOC charges, Discriminatory Demotion Plaintiffs each claim that they were âdemoted from a B-operator job to a C-operator job with a substantial reduction in payâ in June 2009. Firestone responds that when the 3rd Crumb Line was shut down in June 2009, many employees â both black and whiteâ were adversely affected. According to Firestone, employees were demoted pursuant to the non-discriminatory seniority provisions of the CBA. Firestone argues that its application of the CBA provisions to reassign employees is a âlawful, legitimate, nondiscriminatory reason for those decisions.â Plaintiffs did not respond to Firestoneâs arguments.
In the case at bar, Firestone does not contest that Discriminatory Demotion Plaintiffs have established a prima facie case of discrimination. Therefore, a re-buttable presumption 'of intentional discrimination attaches and the burden of production shifts to Firestone to articulate a legitimate, nondiscriminatory reason for its adverse employment action. Wallace, 271 F.3d at 219-20. To meet its burden of production, Firestone cites the âLayoffâ provision of the CBA, which states:
Section 4. Layoff
A. In the event of a plant layoff lasting . more than four (4) weeks (28 days), employees will be laid off in the inverse order of their plant seniority-
B. An employee who is removed from his line of progression due to a plant layoff lasting more than four (4) weeks (28 days) shall be entitled to exercise his seniority in the bottom classification in any other line of progression, provided;
1. He/She can qualify for and is able to perform the work of such classification.
2. For the purpose of determining the bottom classification in the Maintenance line of progression, any employee who has completed less than twelve (12) months as a Maintenance Trainee shall be considered in the bottom classification of that line of progression.
C. In the event of a shutdown due to business conditions lasting less than four (4) weeks (less than 28 days), the affected employees would be reassigned to contract positions in the Warehouse and/or utilized at the Companyâs discretion .with no loss of pay. In the event of a unit shutdown, lasting more than four (4) weeks (28 days), the current plant seniority lay off provisions would apply as detailed in Article X, Section 4, Paragraphs A and B above.10
The burden, therefore, shifts to the Discriminatory Demotion Plaintiffs to present evidence that Firestoneâs proffered legitimate,'nondiscriminatory reason for demoting them was pretextual. Though Discriminatory Demotion Plaintiffs never use the word âpretextâ in their responsive brief, the court assumes that the three charts attached to their response constitute their effort to rebut Firestoneâs nondiscriminatory justification.
The charts plot the Discriminatory Demotion Plaintiffsâ training and job progressions from 2005-2012. See Docket No. 76, Exhibits 2-4. The charts, which are color-coded, highlight the supposedly âlabor-intensiveâ jobs in blue and the âmore-desiredâ jobs in yellow. Id. Plaintiffs argue that Exhibit B and Exhibit C show how non-African-American employees with âone to seven years less seniorityâ than the Discriminatory Demotion Plaintiffs were ânot only promoted, trained[,] and qualified for the more desired jobs but, they were allowed to bounce to their old units to collect more overtime based on information collected from the Production Week Schedules produced by Defendants.â
The aforementioned charts, however, are non-responsive to the discriminatory demotion claims. At best, the charts document the training Discriminatory Demotion Plaintiffs received, or failed to receive,
In short, the charts do not provide any evidence of pretext. Moreover, the court is unaware of any record evidence where a Discriminatory Demotion Plaintiff was demoted and replaced by someone outside the protected class or a similarly situated non-black employee retained his position in contravention of the CBAâs seniority policy. Having failed to present any evidence of pretext, the Discriminatory Demotion Plaintiffs âfall[ ] short of [their] burden of presenting evidence rebutting each of the legitimate nondiscriminatory reasons produced by the [Firestone].â Wallace, 271 F.3d at 220. Accordingly, summary judgment is appropriate as to the Discriminatory Demotion Plaintiffsâ claims of discriminatory demotion.
b. Ruffin
Ruffin fails to direct the court to evidence specifying the date(s) on which he was demoted. In his EEOC charge, Ruf-fin claimed that he was âdemoted to âCâ Operatorâ on June 25, 2009. Again, Firestone asserts that demotions were made according to the seniority provisions of the CBA. '
Firestone does not contest that Ruffin has established a prima facie case of discrimination. Therefore, a rebuttal presumption of intentional discrimination attaches, and the burden of production shifts to Firestone to articulate a legitimate, nondiscriminatory reason for its adverse employment action. Wallace, 271 F.3d at 219-20.
Accordingly, Firestone asserts that its application of the CBAâs seniority provisions to demote employees constitutes a âlawful, legitimate, nondiscriminatory reason for those decisions.â See Padilla, 67 F.Supp.2d at 659; Dandridge, 914 F.Supp. at 1402. Having articulated a nondiscriminatory reason for the demotion, the burden then shifts back to Ruffin to establish pretext.
Pretext can be established by showing that â âthe proffered explanation is false or unworthy of credence.â â Allen v. Radio One of Tex. II, L.L.C., 515 Fed. Appx. 295, 299 (5th Cir.2013) (quoting Laxton, 333 F.3d at 578). Once a Title VII case reaches the pretext stage, the only question on summary judgment is whether there is.a conflict in substantial evidence to create a question for the fact-finder. Lavigne v. Cajun Deep Found., LLC, No. 12-00441-BAJ-SCR, 32 F.Supp.3d 718, 731, 2014 WL 3420778, at *9 (M.D.La. July 10, 2014) (citing Alvarado, 492 F.3d at 611). At deposition, Ruffin testified that when the 3rd Crumb Unit was shut down in August or October 2009, he and several other workers were demoted from B-operator to C-operator positions. See Docket No. 76, Exhibit 9, Page 18. According to Ruffin, however, Cooper, a less-senior white employee, was permitted to continue working as a B-operator in the Crumb Unit in contravention of the seniority system outlined in the CBA. Id. Indeed, Firestoneâs seniority list appears to show that Ruffin was more senior than Cooper. See Docket No. 76, Exhibit 4, Page 53. Ruffin is listed in the USW seniority list as having started his employment on March 9, 2000, while Cooper started on August 1, 2000. Id. In essence, Ruffin argues that he should have retained the B-operator position while Cooper
The EEOCâs letter to Plaintiffs, however, tells a different story. On February 10, 2012, the EEOC stated:
Within the ranks of previous 3rd Crumb employees, we noticed several instances of comparative evidence that would not support disparate treatment theory. This included, but was not limited to, the apparent demotions and pay reductions for Troy Smith, Travis White, Kyle Askew, Susan Teal, Murray Mooreland, James Cooper, Johnny Gaspard, Craig Allen, James Shuts, Shane Frillou and Chad Piletere. All of these white employees had similar seniority dates as the Charging Parties and were all similarly demoted in pay as the Charging Parties.
See Docket No. 64, Exhibit 4.
The conflicting evidence in the record, when viewed in its totality and in the light most favorable to Ruffin, is sufficient to create a genuine issue of material fact as to whether Ruffin was demoted in a discriminatory manner. Therefore, summary judgment is denied as to this claim.
c. Statute of Limitations
Plaintiffsâ âdiscriminatory demotionâ claims are also discrete acts. Pegram, 361 F.3d at 280 (âAfter Morgan, a one-time employment event, including ... dismissals and demotions, is a discrete action that âconstitutes a separate actionable unlawful employment practice ....â â) (quoting Morgan, 536 U.S. at 114, 122 S.Ct. 2061). As a result, Plaintiffs must likewise have filed their charges of discrimination withâ the EEOC within 300 days of when any alleged âdiscriminatory demotionâ occurred. 42 U.S.C. § 2000e-5(e)(1).
Here, the sole remaining discriminatory demotion claim â S. Johnsonâs 2008 claim' â is time-barred. S. Johnson fails to direct the court to any evidence specifying the date(s) on which his alleged âdiscriminatory demotionâ occurred. In his EEOC charge, S. Johnson claims that he was âdemoted from an A-Operator to a B-Operatorâ in October 2008.
S. Johnsonâs charge of discrimination was filed on December 3, 2009, more than 300 days after the demotion took place. As a result, this claim is time-barred.
Moreover, even if S. Johnsonâs claim was not barred by limitations, it would suffer the same fate as the claims lodged by the Discriminatory Demotion Plaintiffs. Firestone articulated a nondiscriminatory reason for demoting S. Johnson, and S. Johnson has proffered no evidence to suggest that Firestoneâs reason was pretextual. Thus, Firestone is entitled to summary judgment as to this claim.
4. Denial of Overtime
Plaintiffs assert that, in general, employees âreceive more compensation from more training because they receive more overtime opportunities, more compensation from being trained in at least three jobs in their part of the plant and increased opportunities for promotion.â Firestone does not address Plaintiffsâ âdenial of overtimeâ claims.
At deposition, Greg Defrates (âDef-ratesâ), the plant manager, stated that
As previously explained, Title VII was designed to address only âadverse employment aetion[s]â that consist of âultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.â Pegram, 361 F.3d 272 at 282. Not every decision made by an employer constitutes an ultimate employment decision. Preston, 222 Fed.Appx. at 358 (quoting Dollis, 77 F.3d at 781-822). Whether a âdenial of overtimeâ constitutes an âadverse employment actionâ has been the subject of considerable debate within the Fifth Circuit.
Though the court is unaware of any binding, reported Fifth Circuit precedent holding that âdenial of overtimeâ claims constitute adverse employment actions, substantial persuasive authority for that proposition. exists. In Johnson v. Manpower Prof'l Serv., Inc., the court held that â[d]enial of overtime pay is an adverse employment action because it relates to [plaintiffs] compensation.â 442 Fed.Appx. 977, 982 (5th Cir.2011) (citing Shannon v. Bell Telecomms., Inc., 292 F.3d 712, 716 (11th Cir.2002) (holding that denial of the opportunity to work overtime is an adverse employment action sufficient to make out a prima facie case under Title VII)); but see Hart v. Life Care Ctr. of Plano, 243 Fed.Appx. 816, 818 (5th Cir.2007) (holding that a âdenial of overtimeâ claim did not âconstitute an ultimate employment decision.â). Several district courts have similarly recognized that denial of overtime opportunities may constitute an adverse employment action. See Phongsavane v. Potter, No. CIVASA-05-CA-0219-XR, 2005 WL 1514091, at *3 (W.D. Tex. June 24, 2005); Ellis v. Crawford, No. Civ. A. 3:03-CV-2416D, 2005 WL 525406, at *7 (N.D.Tex. Mar. 3, 2005); Hadad v. Am. Airlines, Inc., No. Civ. A. 300-CV0041-D, 2003 WL 292170, at *7 (N.D.Tex. Feb. 7, 2003).
Recognizing the disagreement among courts concerning this issue, and mindful of the Fifth Circuitâs directive that an ultimate employment decision must effect a material change in the terms or conditions of employment, the court finds the evidence adduced here is sufficient to render a âdenial of overtimeâ claim an adverse employment action because âit relates to [Plaintiffsâ] compensation.â Johnson, 442 Fed.Appx. at 982. The court, however, need not further analyze these claims under Title VII because Firestone did not âidentify each claim or defense ... on which summary judgment is soughtâ by failing to raise qr address Plaintiffsâ denial of overtime claims as required by Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 56(a).
5. Hostile Work Environment
The words âhostile work environmentâ do not appear in Plaintiffsâ First Amended
Firestoneâs argument is twofold. First, it asserts that Plaintiffsâ âhostile work environmentâ claims fail because they were never alleged in Plaintiffsâ First Amended Complaint. According to Firestone, Plaintiffs failed âto give the defendant fair notice of what the claim is and the grounds upon which it rests[ ]â as required under Rule 8 of the Federal Rules of Civil Procedure. Second, Firestone maintains that Plaintiffs are barred from bringing hostile work environment claims under Title VII because Plaintiffs failed to exhaust their administrative remedies. Once again, Plaintiffs do not respond to Firestoneâs arguments.
Employment discrimination cases are not subject to a heightened pleading standard. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Harvey v. M.L. Smith, Jr., Inc., No. 07-1379, 2008 WL 2282178, at *2 (W.D.La. Apr. 29, 2008); Ollie v. Plano Indep. Sch. Dist., 564 F.Supp.2d 658, 661 (E.D.Tex.2008). The Supreme Court has made it clear that a plaintiff in an employment discrimination case need not plead a prima facie case in his complaint. See Swierkiewicz, 534 U.S. at 508, 122 S.Ct. 992. âRather, a plaintiff need only follow Rule 8âs command that a complaint contain a âshort and plain statement of the claim showing that the pleader is entitled to relief.â â Kelso v. Paulson, No. 3:08-CV-0961, 2009 WL 972997, at *6 (N.D.Tex. Apr. 9, 2009) (quoting Fed. R. Crv. P. 8(a)(2)). âRule 8 thus sets out a âlow barâ to evaluate the sufficiency of a claim, requiring only that a plaintiffs pleadings â âgive the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.â â â Gilbert v. Outback Steakhouse of Fla. Inc., 295 Fed.Appx. 710, 713 (5th Cir.2008) (quoting Gen. Elec. Capital Corp. v. Posey, 415 F.3d 391, 396 (5th Cir.2005) (quoting Swierkiewicz, 534 U.S. at 512, 122 S.Ct. 992)); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Homoki v. Conversion Servs., Inc., 717 F.3d 388, 402 (5th Cir.2013) (citing Conley, 355 U.S. at 47, 78 S.Ct. 99). So long as a pleading alleges facts upon which relief can be granted, it states a claim even if it
On the other hand, â[a] claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court.â Cutrera, 429 F.3d at 113 (citing Fisher v. Metro. Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir.1990)). A plaintiff cannot rely on raising a hostile work environment claim at the summary judgment stage to avoid an adverse judgment. Waters v. City of Dallas, No. 3â11â CV-0540-K, 2012 WL 5363426, at *22 (N.D.Tex. Nov. 1, 2012), aff'd, 540 Fed. Appx. 257 (2013); Brook v. Equilon Enters. LLC, No. 4:09-CV-02418, 2011 WL 13658, at *10 (S.D.Tex. Jan. 3, 2011); Mercer v. N.C. Depât of Transp., No. 5:09-CV-379-FL, 2010 WL 5890394, at *11 (E.D.N.C. Dec. 23, 2010). At issue, then, is whether Plaintiffsâ Amended Complaint provided Firestone fair notice of its hostile work environment claim despite Plaintiffsâ failure to use those specific words. The court concludes that it does.
While Plaintiffsâ Amended Complaint is no model of clarity, it outlines facts sufficient to have put Firestone on notice of their hostile work environment claims. See Perches v. Elcom, Inc., 500 F.Supp.2d 684, 690 (W.D.Tex.2007) (finding that although Plaintiffs complaint did not expressly bring a hostile work environment claim, the facts alleged were sufficient to support a hostile work environment claim). Indeed, allegations involving black face, a noose, and other racially-offensive practices comprise nearly an entire page of Plaintiffsâ Amended Complaint. Those allegations would be unnecessary to establish Plaintiffsâ other claims, and thus largely irrelevant to the ease at hand, but for the existence of a hostile work environment claim. At the very least, Plaintiffsâ allegations should have provided Firestone sufficient reason to move for a more definite statement under Rule 12(e) before responding. See United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 690 n. 15, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) (âif [lack of specificity in-complaint] were really a problem, the [complaining party] could have moved for a more definite statement.... â).
Although Plaintiffsâ Amended Complaint meets the minimum notice pleading requirements to allege a hostile work environment claim, it nevertheless fails because Plaintiffs did not exhaust their administrative remedies under Title VII.
Indeed, Plaintiffsâ EEOC charges allege only failures to train, failures to promote, and discriminatory demotions. The charges do not mention or even allude to any facts that would have put the EEOC or Firestone on notice about the possibility of a hostile work environment claim. Consequently, Plaintiffsâ hostile work environment claims cannot be deemed to fall within the scope of the investigation that reasonably could have been expected to grow out. of their EEOC charges. As a result, Plaintiffs failed to exhaust their administrative remedies before the EEOC. Summary judgment, therefore, is warranted as to these claims.
B. Ă2 U.S.C. § 1981
âSection 1981 provides that all persons in the United States shall have the
Plaintiffsâ § 1981 claims can likewise be divided into the same-five categories: (1) failure to train; (2) failure to promote; (3) discriminatory demotion; (4) denial of overtime; and (5) hostile work environment. Firestone responds, respectively, that Plaintiffsâ âfailure to trainâ claims fail because they do not involve an adverse employment action; the âfailure to promoteâ claims are time-barred and/or were the result of nondiscriminatory provisions in the CBA; that nondiscriminatory reasons account for any demotions; and that Plaintiffs failed to plead hostile work environment claims. Firestone does not directly address Plaintiffsâ âdenial of overtimeâ claims. Plaintiffs respond that their § 1981 claims are not time-barred. Moreover, Plaintiffs appear to assert that their charts show that Firestoneâs nondiscriminatory justifications are pretextual.
1. Failure to Train
Plaintiffsâ § 1981 âfailure to trainâ claims are dismissed for the same reasons articulated in the aforementioned Title VII âfailure to trainâ section. In short, âfailure to trainâ claims do not involve an adverse employment action, and summary judgment is proper.
2. Failure to Promote
Plaintiffs allege that they were denied promotions on account of their race in violation of § 1981. As with the Title VII claims, Firestone argues that Plaintiffsâ § 1981 âfailure to promoteâ claims are barred by a two-year statute of limitations. Firestone alternatively asserts that its promotion decisions were made pursuant to the nondiscriminatory seniority provisions outlined in the CBA. Plaintiffs counter that their § 1981 claims are subject to a four-year statute of limitations, and, thus, are not time-barred. To rebut Firestoneâs nondiscriminatory justification for its promotion decisions, Plaintiffs present their charts.
âWhen an individual infers discrimination from an employerâs failure to promote [him], [courts] apply a modified version of the burden-shifting analysis articulated by the Supreme Court in McDonnell Douglas.â Scales v. Slater, 181 F.3d 703, 709 (5th Cir.1999). To establish a prima facie case of discriminatory failure to promote, a plaintiff must show that:
(1) he is a member of a protected class;
*852 (2) he was qualified for the position sought;
(3) he was rejected for the position; and either
(4) the employer awarded the position to a person outside the protected class or the employer continued to seek applicants with his qualifications after rejecting the plaintiff.
Autry v. Fort Bend Indep. Sch. Dist., 704 F.3d 344, 346-47 (5th Cir.2013) (citing Price v. Fed. Exp. Corp., 283 F.3d 715, 720 (5th Cir.2002)); Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 324 (5th Cir.2002); Celestine, 266 F.3d at 354-55.
a. Statute of Limitations
Like many federal statutes, 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991, does not contain a statute of limitations. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). For actions brought under the statute, where the cause of action arises from or was made possible by the 1991 amendments, which expanded the coverage of § 1981 to extend to âall benefits, privileges, terms, and conditions of the contractual relationship,â the four-year limitations period prescribed by the federal âcatch-allâ statute of limitations controls. See id. at 381-83, 124 S.Ct. 1836. That statute, enacted on December 1,1990, provides:
Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of enactment of this section may not be commenced later than 4 years after the cause of action accrues.
28 U.S.C. § 1658(a).
For causes of action based on the pre-amendment language of the statute, which focuses on thĂŠ making and enforcement of contracts, however, a different limitation period controls, as the court must apply the most analogous Texas statute of limitations, which in this instance is two years. See Jones, 541 U.S. at 371, 124 S.Ct. 1836 (citing Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987)); Mitchell v. Crescent River Port Pilots Assân, 265 Fed.Appx. 363, 370 (5th Cir.2008); Nat'l Assân of Govât Emps. v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 713 n. 22 (5th Cir.1994).
Failure to promote claims were actionable under § 1981, prior to the 1991 amendments, if âthe nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer.â Patterson, 491 U.S. at 185, 109 S.Ct. 2363. âIn deciding whether a change of position rises to the level of a new and distinct relation, the court must compare the employeeâs current duties, salary, and benefits with those incident to the new position.â Police Assân of New Orleans v. City of New Orleans, 100 F.3d 1159, 1170-71 (5th Cir.1996). If the new position involves âsubstantial changes,â the failure to promote claim was available under § 1981 prior to the 1991 amendments and Texasâs two-year prescriptive period applies. Fonteneaux v. Shell Oil Co., 289 Fed.Appx. 695, 699 (5th Cir.2008), cert. denied, 555 U.S. 1171, 129 S.Ct. 1328, 173 L.Ed.2d 587 (2009).
Therefore, to ascertain whether the two-year or four-year statute of limitations applies, the court must compare Plaintiffsâ positions at the time of the alleged failure to promote with their would-be positions to determine whether the promotion would have created a new and distinct relationship with Firestone. Unfortunately, neither party points to any evidence in the record that enables the court to make that comparison. Instead, Firestone directs the court to several cases holding that
Firestoneâs analysis overlooks the fact that in those cases, the courts reached their holdings only after comparing the plaintiffs then-current duties, salaries, and benefits with those incident to the allegedly denied promotion. See Smith, 325 F.Supp.2d at 723 (applying Louisianaâs one-year limitations period because plaintiffs promotion would have entailed a raise in salary, additional time commitment, and increased responsibilities); Fonteneaux, 2007 WL 7210406, at *3 (applying Texasâs two-year limitations period because plaintiffs promotion would have moved plaintiff from a primarily consultative position into a primarily supervisory position that would have extended the plaintiffs responsibilities into areas of sales and procurement).
The CBA lists A, B, and C-level wages as of March 8, 2012. See Docket No. 64, Exhibit B, Page 84. Qualified A-level operators were paid $32.34 per hour while qualified B and C-level operators were paid hourly wages of $30.99 and $21.45, respectively. Id. While the $9.54 hourly wage differential between B and C-level operators is some evidence of a new and distinct relationship, â âa raise which is accompanied by no significant change in duties and responsibilities does not reach the level of a change in employment relationship protected by § 1981.â â Scott v. J.E. Merit Constructors, Inc., Civ. A. No. 06-915-BAJ, 2012 WL 1711616, at *8 (M.D.La. May 15, 2012) (quoting Harrison v. Assocs. Corp. of N. Am., 917 F.2d 195, 198 (5th Cir.1990)).
The court is unaware of evidence in the record pertaining to the âduties and responsibilitiesâ of Plaintiffs or of any other employees in the bargaining unit. Thus, there is simply insufficient information for the court to determine whether Texasâs two-year statute of limitations applies. As a result, and âout of an abundance of caution,â the court will apply the four-year statute of limitations to Plaintiffsâ § 1981 âfailure to promoteâ claims. See Rudolph v. Huntington Ingalls, Inc., No. 1:06-CV-820-HSO-JMR, 2011 WL 4350941, at *5 (S.D.Miss. Sept. 15, 2011) (âOut of an abundance of, caution, the [c]ourt will apply the longer four year limitations period here.â).
(1). Brooks
Brooks fails to direct the court to evidence specifying the date(s) on which he was denied a promotion. Firestone notes, however, that at deposition, Brooks stated that he was denied a promotion sometime between 2000 and 2003. See Docket No. 76, Exhibit 10, Page 11. His EEOC charge states that he was denied a promotion âin the latter part of 2008.â
Because Brooks filed suit on June 29, 2012, his 2000 and 2003 promotion claims are time-barred. Brooksâs 2008 claim, however, may not be time-barred and will be analyzed in the following section.
(2). Byrd
Byrd fails to direct the court to evidence specifying the date(s) on which he was denied a promotion. Byrd claimed at deposition, however, that he was denied a promotion at a time when a different union, the OCAW, represented workers at the Orange Plant. See Docket No. 60, Exhibit 2, Page 60. The OCAW has not
Because Byrd filed suit on June 29, 2012, thirteen years after his 1999 failure to promote, that claim is time-barred. The 2008 claim may not be time-barred and will be analyzed in the following section.
(3). Greenaway
Greenaway fails to direct the court to evidence specifying the date(s) on which he was denied a promotion. Firestone notes, however, that at deposition, Greenaway alleged that he was denied promotions on seven occasions, once in 2002, twice in 2007, three times in 2008, and once in 2012. See Docket No. 61, Exhibit 2, Pages 10, 11, 12, 16, 20, 23, and 29.
Greenaway filed suit on June 29, 2012. As a result, any instances of an alleged âfailure to promoteâ that occurred before June 29, 2008 â four years before the complaint was filed â are time-barred. The first three alleged instances of a âfailure to promote are therefore barred. The fourth, fifth, sixth, and seventh instances may not be time-barred and will be analyzed in the following section.
(4). S. Johnson
S. Johnson fails to direct the court to evidence specifying the date(s) on which he was denied a promotion. S. Johnson stated at deposition, however, that he was denied a promotion sometime before 2003. See Docket No. 62, Exhibit 2, Page 31. Further, in his EEOC charge, Byrd claims that he was âpassed overâ for a promotion âin the latter part of 2008.â
S. Johnson filed suit on June 29, 2012. As a result, any promotion denial that occurred before June 29, 2008 â four years before the complaint was filed â is time-barred. The 2003 incident is clearly barred, as it occurred five years before his June 29, 2008, deadline. The 2008 claim may not be time-barred and will be analyzed in the following section.
(5,). W. Johnson
W. Johnson fails to direct the court to evidence specifying the date(s) on which he was denied a promotion. At deposition, however, W. Johnson alleged that he was denied a promotion in 2004 or 2005. See Docket No. 63, Exhibit 2, Page 16. Further, in his amended EEOC charge, W. Johnson claims that he was âpassed overâ for a promotion âin the latter part of 2008.â
Because W. Johnson filed suit on June 29, 2012, only incidents that occurred after June 29, 2008, are actionable. Accordingly, W. Johnsonâs alleged 2004 and 2005 incidents are time-barred. The 2008 may not be time-barred and will be analyzed in the following section.
(6). Ruffin
Ruffin fails to direct the court to evidence specifying the date(s) on which his alleged âfailure to promoteâ occurred. In his original EEOC charge, Ruffin claims that on August 6, 2009, he was âbypassedâ for a B-operator promotion when two white employees with less seniority were promoted ahead of him. In his amended EEOC charge, Ruffin claims that he was âpassed overâ for a promotion âin the latter part of 2008.â
As previously stated in the Title VII âfailure to promoteâ section, Ruffinâs 2009 âfailure to promoteâ claim is better characterized as a discriminatory demotion claim. Accordingly, it will be analyzed in the âdiscriminatory demotionâ section below. Ruffinâs 2008 claim may not be time-barred and will be analyzed in the following section.
Spencer fails to direct the court to evidence specifying the date(s) on which he was denied a promotion. In his EEOC charge, Spencer claims that he was âpassed overâ for a promotion âin the latter part of 2008.â This claim may not be time-barred and will be analyzed in the following section.
(8). Guillory
Guillory fails to direct the court to evidence specifying the date(s) on which he was denied a promotion. In his EEOC charge, Guillory claims that he was denied a promotion âin the latter part of 2008.â Because it is unclear whether the 2008 claim was filed within the applicable statute of limitations, dismissal on this basis is not warranted. The claim will be analyzed in the following section.
b. Remaining Non-Time-Barred, âFailure to Promoteâ Claims
Firestone does not contest that Plaintiffs have established a prima facie case of discrimination with respect to the timely failure to promote claims. Therefore, a presumption of intentional discrimination attaches, and the burden of production shifts to Firestone to articulate a legiti: mate, nondiscriminatory reason for its adverse employment action. Wallace, 271 F.3d at 219-20. In order to meet its burden, Firestone refers the court to the âSeniorityâ provision of the CBA, which states:
Section 1. General
M. In determining eligibility on a non-craft classification, seniority shall be determining factor provided the employee desiring to fill the opening can qualify to do the work within a reasonable breaking-in period. To be eligible on a non-craft classification, the employee must be capable of performing all duties required on the classification within a reasonable breaking-in period. In the event the employee cannot qualify to do the work within a reasonable breaking-in period, the employee will be returned to work on his former classification, consistent with his seniority.
Firestone asserts that its application of the CBAâs seniority provision constitutes a âlawful, legitimate, nondiscriminatory reason for [the promotion] decisions.â See Padilla, 67 F.Supp.2d at 659; Dandridge, 914 F.Supp. at 1402.
The burden therefore shifts to Plaintiffs to show that Firestoneâs proffered, legitimate, nondiscriminatory reason for failing to promote them was pretextual. Although Plaintiffs never use the word âpretextâ in their responsive brief, the court assumes that the three charts attached .to Plaintiffsâ response constitute their attempt to rebut Firestoneâs nondiscriminatory justification. Again, Plaintiffsâ charts are non-responsive to their claims. At best, the charts document the training Plaintiffs received, or failed to receive, from 2005-2012. They are completely devoid of information relating to promotions. Specifically, they do not reveal dates on which a given Plaintiff applied for a promotion but was rejected in place of a non-protected class â employee. Importantly, the charts also fail to show any evidence of a Plaintiffs applying for and being denied a promotion because of a purported âlack of training.â
Accordingly, the charts do not provide evidence of pretext, and the court is unaware of other evidence, in the record suggesting that Firestoneâs reason is pretex-tual. Plaintiffs thus âfall[ ] short of [their] burden of presenting evidence rebutting each of the legitimate nondiscriminatory reasons produced by the [employer].â
3.Discriminatory Demotion
Brooks, Greenaway, S. Johnson, W. Johnson, and Ruffin claim that they were discriminatorily demoted. Firestone does not contest that Plaintiffs have established a prima facie case of discrimination. In order to meet its burden of articulating a legitimate, nondiscriminatory reason for its adverse employment action, Firestone again refers the court to the aforementioned âSeniorityâ provision of the CBA. The burden then shifts to Plaintiffs to offer evidence that Firestoneâs proffered legitimate, nondiscriminatory reason for demoting them was pretextual.
Brooksâs, Greenawayâs, S. Johnsonâs, and W. Johnsonâs discriminatory demotion claims fail for the same reasons previously discussed in the Title VII analysis. The charts upon which they rely simply provide no information relating to demotions. They do not provide evidence of pretext, and summary judgment is therefore appropriate as to these elainis.
Ruffinâs 2009 discriminatory demotion claim, by contrast, survives summary judgment for the same reasons set forth' in the Title VII analysis. In short, Ruffinâs testimony at deposition that he was demoted in contravention of Firestoneâs seniority system and Firestoneâs seniority list showing Ruffin to be senior to Cooper create a genuine issue of material fact.
4.Denial of Overtime
As with their Title VII claims, Plaintiffs assert that, in general, employees âreceive more compensation from more training because they receive more overtime opportunities, more compensation from being trained in at least three jobs in their part of the plant and increased opportunities for promotion.â Firestone does not move for summary judgment on Plaintiffsâ denial of overtime claims. Accordingly, at this point in the proceedings, these claims survive summary judgment and remain pending.
5.Hostile Work Environment
Plaintiffs Brooks, Ruffin, S. Johnson, W. Johnson, and Spencer allege hostile work environment claims under 42 U.S.C. § 1981.
To establish a racially hostile work environment claim under Title VII, the plaintiff must prove that:
(1) he belongs to a protected group;
(2) he was subjected to unwelcome harassment;
(3) the harassment was based on race;
(4) the harassment affected a term, condition, or privilege of employment; and
(5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action.
âThe court must look at âall the circumstances,â including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employeeâs work performance.â Rodriguez v. Cooper Cameron Valves TBV Techno, Inc., No. H-12-0764, 2014 WL 3044797, at *8 (S.D.Tex. July 3, 2014) (quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). To be actionable, the hostile environment must be both objectively and subjectively offensive. Harris, 510 U.S. at 23, 114 S.Ct. 367. The employer may avoid liability if it took âprompt remedial actionâ to protect the claimant. Id. (citing Hockman, 407 F.3d at 329). What constitutes prompt remedial action is a fact-specific inquiry and ânot every response by an employer will be sufficientâ to absolve the employer of liability. Id. (quoting Hockman, 407 F.3d at 329).
Racially â âdiscriminatory verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive to alter the conditions of the victimâs employment and create an abusive working environment that violates Title VII.â â Mire v. Tex. Plumbing Supply Co., Inc., 286 Fed.Appx. 138, 141 (5th Cir.2008) (citing Harris, 510 U.S. at 21, 114 S.Ct. 367); Hernandez, 670 F.3d at 652. âHostile work environmentâ racial harassment occurs when an employerâs conduct â âhas the purpose or effect of unreasonably interfering with an individualâs work performance or creating an intimidating, hostile, or offensive environment.â â Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (quoting 29 C.F.R. § 1604.11(a)). To survive summary judgment on a hostile work environment claim based on race, the nonmovant must create a fact issue as to each of the following. elements: â(1) racially discriminatory intimidation, ridicule and insults that are; (2) sufficiently severe or pervasive that they; (3) alter the conditions of employment; and (4) create an abusive working environment.â Walker, 214 F.3d at 625; accord Harvill, 433 F.3d at 434. Whether a work environment meets these criteria depends upon the totality of the circumstances. See Harris, 510 U.S. at 23, 114 S.Ct. 367; Harvill, 433 F.3d at 434; Hock-man, 407 F.3d at 325; Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir. 2005); Walker, 214 F.3d at 625.
Moreover, to establish a viable hostile work environment claim, the plaintiff must present â â âmore than a few isolated incidents of racial enmity.â â â Jones v. Barnhart, 349 F.3d 1260, 1268 (10th Cir.2003) (quoting Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir.1994), cert. denied, 516 U.S. 826, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995) (quoting Hicks v. Gates Rubber Co., 833 F.2d 1406, 1417-18 (10th Cir.1987))); see Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir.2005); Fortenberry v. Texas, 75 Fed.Appx. 924, 928 (5th Cir.2003); Trujillo v. Univ. of Co. Health Scis. Ctr., 157 F.3d 1211, 1214 (10th Cir.1998). âTitle VII âwas only meant to bar conduct that is so severe and pervasive that it destroys a protected classmemberâs opportunity to succeed in the workplace,â and therefore conduct that only âsporadically wounds or offends but does not hinderâ an employeeâs performance is not actionable.â Skinner v. Brown, 951 F.Supp. 1307, 1322 (S.D.Tex.1996), aff'd, 134 F.3d 368 (5th Cir.1997) (quoting Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir.1996), cert. denied, 519 U.S. 1055, 117 S.Ct. 682, 136 L.Ed.2d 607 (1997)); see also Hockman, 407 F.3d at 326; Alzuraqi v. Grp. 1 Auto
a. Brooks
Brooks appears to allege a hostile work environment claim based on a single incident involving a restroom in the Control Room. In his amended response to Firestoneâs motion for summary judgment, Brooks claims that he âwent to use the restroom at the Control Room and was told by the personnel present that I was not allowed to use restrooms in those facilities.â At deposition, Brooks asserted that Greg Ballow (âBallowâ), an A-Operator on the 3rd Line, âmade a point to ask me not to use that restroom.â See Docket No. 76, Exhibit 10, Page 57. When asked whether Ballow physically removed Brooks from the restroom, Brooks replied, âNo, Sir.â Id. at 58. WTien asked to explain the incident in greater detail, Brooks said, âI used the restroom, and I went back to my job.â Id. at 59. Brooks then described it as an isolated incident that occurred â[o]nly once for me.â Id. at 60. He did not report it to anyone. Id. at 59.
This incident does not rise to the level of âsevere or pervasive harassmentâ for which § 1981 provides relief. Indeed, the incident was isolated and involved no physical threat; he was also not, in fact, precluded from using the restroom. There is no evidence that it interfered with Brooksâs work, nor does Brooks make an effort to explain how this was the type of âsevereâ incident actionable under § 1981. Moreover, there is no evidence that management knew or should have known about the incident. Accordingly, Brooks has failed to establish a prima facie case of race discrimination under a hostile work environment theory, and this claim does not survive summary judgment.
b. Ruffin
Ruffin appears to assert a hostile work environment claim based on company video monitors showing allegedly offensive
This single incident does not rise to the level of âsevere or pervasive harassmentâ for which § 1981 provides relief. See Frazier v. Sabine River Auth. State of La., 509 Fed.Appx. 370, 374 (5th Cir.), cert. denied, â U.S. â, 134 S.Ct. 727, 187 L.Ed.2d 582 (2013) (holding that a coworkerâs use of the words âniggerâ and âNegreet,â in plaintiffs presence, as well as a co-workerâs ânoose gesture,â were not severe or pervasive enough to establish a prima facie claim for hostile work environment); Rudolph, 2011 WL 4350941, at *12 (holding that graffiti on bathroom stalls that read, âYou donât have to use a rope to kill a nigger[,] thereâs a truck and a chain,â â[k]ill all niggers,â and â[n]iggers smell like dogs,â were not physically threatening or humiliating, and, therefore, insufficient to support a hostile work environment claim). Here, the incident in question was not' recurring and involved no physical threat. There is no evidence that it interfered with Ruffinâs work, nor does Ruffin make an effort to explain how this was the type of âsevereâ incident viable under § 1981. Moreover, the record shows that management took prompt action to remedy the problem. Accordingly, Ruffin fails to establish a prima facie case of race discrimination under a hostile work environment theory.
c. S. Johnson
S. Johnson appears to assert a hostile work environment claim based on the âplant management allowing] employees to paint black faces on valves in the plant.â When asked during his deposition whether he had âever seen black faces painted on valves at the plant,â S. Johnson stated, âNo, but in the bathroom I have.â See Docket No. 76, Exhibit 13, Page 108. When asked to provide a âverbal description of the black faces,â S. Johnson stated, âThey would just draw a bunch of black faces and put some kind of a slur.... â Id. at 109. S. Johnson recalled seeing comments in the bathroom about President Obama stating âhow the country gonna ... go down since we got a black president.â Id. at 110-11. S. Johnson was unable to recall any other specific content regarding any of the alleged pictures or slurs in the bathroom. S. Johnson claimed that he told the foreman about the images but that the foreman âwaited a while before he painted [over them].â Id. at 110.
These incidents do not rise to the level of âsevere or pervasive harassmentâ for which § 1981 provides relief. See Fairley v. Huntington Ingalls, Inc., No. 1:06-CV-785-HSO-JMR, 2011 WL 4350882, at *15 (S.D.Miss. Sept. 15, 2011) (holding that racially offensive graffiti inside a bathroom stall that was not specifically directed at. plaintiff was insufficiently severe and pervasive to support a hostile work environment claim); Johnson v. Northrop Grumman Shipbuilding, Inc., No. 1:06-CV-797-JHSO-JMR, 2011 WL 1045444, at *6 (S.D.Miss. Mar. 17, 2011) (holding that racially derogatory writings, depictions, and graffiti, seen on numerous occasions by plaintiff in bathroom stalls, was insufficient to support a hostile work environment claim). Here, the incidents appear to have been confined to a single restroom, involved no physical threat, and were not directed at S. Johnson. There is no evidence that they interfered with S. John
d. W. Johnson
W. Johnson appears to assert a hostile work environment claim based on an incident that allegedly occurred in 2009, wherein a âUnited States flag in front of the Firestone Orange Plant was hung upside down ostensibly, to protest President Obamaâs election.â W. Johnson directs the court to pages 76-77 of his deposition, presumably to provide details of the alleged incident. The court was unable to locate any references to an upside-down flag on. those pages. On page 80 of his deposition, however, when W. Johnson is asked to explain the flag incident, he stated, âJust the flag hanging upside down.â When asked whether he reported it to anyone, W. Johnson replied, âNo.â Id. at 80.
The upside-down hanging of an American flag does not rise to the level of âsevere or pervasive harassmentâ for which § 1981 provides relief. Indeed, the single incident involved no physical threat and was not directed at W. Johnson. There is no evidence that it interfered with W. Johnsonâs work, nor does he make an effort to articulate how this was the type of âsevereâ incident viable under § 1981. Moreover, even if the flag was flown upside-down to protest President Obama, that does not necessarily mean that the protest was racially motivated. Indeed, a number of non-black American presidents have encountered protests from dissatisfied constituents.
e. Spencer
Spencer appears to allege a hostile work environment claim based on a single incident in which he found a âminiature hangmanâs noose placed inside his hard hat at work.â During his deposition, Spencer stated that his âhardhat was sitting on top of the locker and ... [t]here was a hangman noose in it.â See Docket No. 76, Exhibit 11, Page 142. Spencer described the miniature noose as âabout.a centimeter thickâ and about â8 inches long.â Id. at 144. Spencer claimed that nobody was with him when he found the noose and that he âtook it homeâ because he âdidnât want to start anything on the job.â Id. at 147. Spencer said he never showed it to any of his coworkers and {hat none of the other seven Plaintiffs came over to his house to look at it. Id. at 147.
Under the proper circumstances, the presence of a noose at the workplace might constitute an âextremely seriousâ event causing a discriminatory change in the terms and conditions of oneâs employment. Hudson v. Cleco Corp., 539 Fed.Appx. 615, 620 (5th Cir.2013). âThe [c]ourt does not feel the need to explain that the presence of a noose can certainly be considered harassment by African-American [] employees.â Cargo v. Kan. City S. Ry. Co., No. 05-2010, 2012 WL 1014707, at *6 (W.D.La. Mar. 22, 2012). Here, however, based on the evidence provided, the court does not find that this noose had the effect of altering the terms, conditions, or privileges of [Spencerâs] employment. As an initial matter, the court notes that this seems to have been an isolated incident. It is unclear who placed the noose in Spencerâs hardhat, and Spencer proffers no evidence to suggest how the presence of the noose affected his employment. Perhaps most importantly, there is no evidence to suggest that Firestone knew or should have known about this incident. Indeed, Spencer admits that he never told a supervisor about the noose.
Moreover, while not making light of this incident, the court notes that other district courts have granted summary judgment on hostile work environment claims involving far more serious incidents involving a noose. See Carter v. Luminant Power Servs. Co., No. 3:10-CV-1486-L, 2011 WL 6090700, at *30 (N.D.Tex. Dec. 6, 2011); Filer v. Donley, No. 4:10-CV-310-A, 2011 WL 196169, at *7 (N.D.Tex. Jan. 20, 2011), revâd on other grounds, 690 F.3d 643 (5th Cir.2012) (granting summary judgment .against employee whose supervisor publicly displayed a noose in his office because no rational jury could find an abusive work environment when the plaintiff viewed the noose only once for a matter of a few minutes); Jimerson v. Garrett Aviation Servs., LLC, No. H-09-0790, 2010 WL 5067692, at *1, 4-5 (S.D.Tex. Dec. 6, 2010) (holding that a rope in the shape of a noose hanging from the rafters at the plaintiffs workplace, that a coworker stated was to âwrap around [the] [p]laintiff s neck,â was insufficient to support a hostile work environment claim, as the incident was isolated and unaccompanied by physical contact, and the plaintiff did not flee or seek help).
For these reasons, Spencer fails to establish a prima facie case of race discrimination under a hostile work environment theory, and summary judgment is warranted as to this claim.
C. ADA
Greenaway claims that Firestone discriminated against him as a result of a hearing disability in violation of the ADA. Specifically, Greenaway alleges that he was demoted to a C-Operator position because â[t]he plant refused to pay for hearing implants and refused to allow [Greena-way] to wear a hearing aid inside the control room.â Firestone responds that Greenawayâs ADA claim is unavailing because âGreenaway has never raised, and the EEOC .has never investigated or addressed, any claim of alleged disability discrimination.â Greenaway does not counter Firestoneâs argument.
To maintain a claim under Title I of the ADA, as with a claim under Title. VII of the Civil Rights Act, an aggrieved employee must file a timely charge of discrimination with the EEOC or equivalent, state agency and receive a right-to-sue letter prior to filing suit in federal court. See Dao, 96 F.3d at 788-89; Wagner, 939 F.Supp. at 1308. In a deferral state such as Texas, the employee must file his charge of discrimination with the EEOC
Here, Greenaway concedes that he has filed only one EEOC charge against Firestone and that it contains no reference to any alleged hearing disability. See Docket No. 61, Exhibit 2, Page Nos. 83-84. Accordingly, Greenaway has failed to exhaust his administrative remedies as required under the ADA, and his claim does not survive summary judgment.
D. Executive Order 1124-6
Plaintiffs allege that Firestone discriminated against them in violation of Executive Order 11246. Executive Order 11246 prohibits federal contractors and subcontractors from discriminating on the bases of race, color, religion, sex, and national origin. See 42 U.S.C. § 2000e note. Firestone responds that Executive Order 11246 does not create a private cause of action. Plaintiffs cite no case law to support their claims and, once again, fail to address Firestoneâs argument.
Because Plaintiffs did' not address their cause of action under Executive Order 11246, they appear to have abandoned this alleged ground for recovery. Indeed, because Plaintiffs did not brief these claims in their responsive brief, any claims by Plaintiffs seeking recovery under Executive Order 11246 have been waived and are no longer at issue. See Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 190 (5th Cir.2007) (stating that inadequately briefed issues are considered waived); DIRECTV, Inc. v. Budden, 420 F.3d 521, 525-26 (5th Cir.2005); Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 653 (5th Cir.), cert. denied, 543 U.S. 979, 125 S.Ct. 478, 160 L.Ed.2d 356 (2004); United States ex rel. Phillips v. L-3 Commcâns Integrated Sys., L.P., No. 3:10-CV-1784, 2012 WL 3649699, at *9 (N.D.Tex. Aug. 24, 2012) (treating relatorâs conspiracy claim abandoned where he failed to respond to motion to dismiss); Moore v. Delta Airlines, Inc., No. 3:10-CV2241, 2012 WL 685414, at *5 (N.D.Tex. Mar. 1, 2012) (citing Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n. 1 (5th Cir.2006)) (holding that the plaintiff abandoned any claims not addressed in her summary judgment response); Penrod v. Bank of N.Y. Mellon, 824 F.Supp.2d 754, 762-63 (S.D.Tex.2011); Edwards v. Tex.N.M. Power Co., 259 F.Supp.2d 544, 547 (N.D.Tex.2003).
Even assuming Plaintiffsâ claims were not waived, however, these claims must be rejected because Executive Order 11246 âdoes not afford a private right of action to employees.â Trevino-Garcia v. Univ. of Tex. Health Sci. Ctr.-Sch. of Med., No. SA-09-CA-0572-XR, 2009 WL 5195962, at *4 (W.D.Tex. Dec. 21, 2009) (citing Thomas v. Choctaw Mgmt./Servs. Enter., 313 F.3d 910, 912 n. 8 (5th Cir.2002)); accord Pena v. USAA Fed. Savs. Bank, 212 F.3d 594, 594 (5th Cir.2000) (affirming dismissal of pro se claim by former employee against USAA because Executive Order 11246 provides no private right of action).
Consistent with these authorities, Plaintiffs reliance on Executive Order 11246 is unavailing. Summary judgment is therefore mandated on this cause of action.
III. Conclusion
Based on the foregoing analysis, Firestoneâs motions for summary judgment are granted in part and denied in part. Ruf-finâs 2009 Title VII and § 1981 discriminatory demotion claims, as well as Plaintiffsâ
. Plaintiffsâ pleadings and briefings to the court are vague, confusing, and at times incomprehensible. Plaintiffs' briefs frequently fail to direct the court to specific pages in the lengthy record. The nonmovant is required to "submit or identify evidence in the record to show the existence of a genuine issue of material fact as to each element of the cause[s] of action.â Malacara v. Garber, 353 F.3d 393, 404 (5th Cir.2003). The nonmov-ant must also "articulate the precise manner in which the submitted or identified evidence supports his or her claim.â Smith ex rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir.2004). Although the court has done its best to identify Plaintiffs' evidence in the record, the court is "under no duty 'to sift through the record in search of evidence to support a party's opposition to summary judgment.â â Fuentes v. Postmaster Gen. of USPS, 282 Fed.Appx. 296, 300 (5th Cir.2008) (quoting Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998)); see also Malacara, 353 F.3d at 405 (âWhen evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court.â); accord Saiz v. Sw. Bell Tel. Co., No. Civ. A. 4:01-CV-189-Y, 2004 WL 396244, at *1 (N.D.Tex. Jan. 22, 2004) ("It is not this [cjourtâs job to ferret through Plaintiffsâ lengthy submissions in the hopes of unearthing evidentiary support for Plaintiffs' position.â); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (âJudges are not like pigs, hunting for truffles buried in briefs.â).
. Plaintiffs object to Defendantâs use of the CBA on hearsay and authentication grounds. A contract, however, is not hearsay because it has independent legal significance. Crompton Greaves, Ltd. v. Shippers Stevedoring Co., 776 F.Supp.2d 375, 386 (S.D.Tex. 2011) (citing Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 540 (5th Cir.1994) ("Signed instruments such as wills, contracts, and promissory notes are writings that have independent legal significance and are not hearsay.â)). As to Plaintiffsâ authentication argument, the Advisory Committeeâs comment to Rule 56(c) in the 2010 Amend
. Plaintiffs argue that the EEOC letter is "pure hearsayâ and that it âcontains no authentication.â Pursuant to Rule 56(c)(2), it appears that the letter could be offered in admissible form under Federal Rule of Evidence 803(8)(A)(iii), which provides that a public record is not excluded by the rule against hearsay if it is â[a] record or state- â ment of a public office . . . [that] sets out ... in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation!.]" Fed. R. Evid. 803(8). See Richardson v. Miss. Depât of Human Servs. No. 3:10-CV-198-DPJ-FKB, 2012 WL 568285, at *3 (S.D.Miss. Feb. 21, 2012) (holding that an unauthenticated EEOC determination letter should be considered at the summary judgment stage because "there [was] no argument or indication that the exhibits could not be offered in admissible formâ under Rule 56); Lopez v. Kempthorne, 684 F.Supp.2d 827, 888 (S.D.Tex.2010) ("An EEOC determination or factual finding is admissible in a civil action.â); accord Hetherington v. Wal-Mart, Inc., 511 Fed.Appx. 909, 911 (11th Cir.2013) ("Cause determinations by the EEOC are generally admissible under the hearsay exception for public records.â); DeCorte v. Jordan, 497 F.3d 433, 440 (5th Cir.2007) ("As a general rule, 'EEOC determinations and findings of fact, although not binding on the trier of fact, are admissible as evidence in civil proceedings as probative of a claim of employment discrimination.â â) (quoting McClure v. Mexia Indep. Sch. Dist., 750 F.2d 396, 400 (5th Cir.1985)).
.Firestone's lone reference to Plaintiffsâ âdenial of overtimeâ claims appears in its Reply to Plaintiffsâ Response in Opposition to Summary Judgment (# 75), wherein Firestone argues that the LLFPA does not apply to alleged denials of overtime. The court agrees. Nonetheless, Plaintiffs appear to plead its denial of overtime claims independently of the LLFPA. See Docket No. 13, Paragraph 37. Additionally, while Firestone broadly states that Plaintiffs' Title VII and § 1981 claims are time-barred, the court does not have sufficient information regarding the denial of overtime claims to make such a determination at this juncture.
. Firestoneâs Answer (# 6) explicitly states that âPlaintiffs' claims are barred in whole or in part by the applicable statute of limitations. ...â Accordingly, Plaintiffs were given fair notice as to the nature of Firestoneâs limitations defense.
. In failing to respond to the arguments presented by Firestone in its Motions for Summary Judgment, Plaintiffs violated Local Rule CV-7(a)(l), which provides that "[rjesponses to case dispositive motions must include a response to the movant's statement of issues.â
. Though Plaintiffs do not directly address Firestone's statute of limitations arguments, they appear to assert broadly that the LLFPA saves their time-barred claims. Plaintiffs' argument is without merit. The LLFPA does not apply to discrete acts (failure to train, failure to promote, discriminatory demotion, and denial of overtime) such as the incidents at issue here. See Tillman v. S. Wood Preserving of Hattiesburg, Inc., 377 Fed.Appx. 346, 350 (5th Cir.2010); Anthony v. Galveston Cnty., No. 3:12-CV00269, 2014 WL 109352, at *5 (S.D.Tex. Jan. 10, 2014); Blasingame v. Eli Lilly & Co., No. H-11-4522, 2013 WL 5707324, at *5 (S.D.Tex. Oct. 18, 2013).
. Texas later abolished the TCHR âand transferred its powers and duties to the Civil Rights Division of the Texas Workforce Commission.â Johnson v. Select Energy Servs., LLC, No. H-11-3486, 2013 WL 5425115, at *1 n. 1 (S.D.Tex. Sept. 24, 2013).
. Evidence in the record suggests that Green-away did in fact receive training for this position and was working in the Crumb Line control room at the time of his deposition. See Docket No. 61, Exhibit 2, Page 78.
. Even without consulting the CBA, which Plaintiffs argue is not properly authenticated,
. Firestone cites to district court holdings in Florida and California for the proposition that charts authored by a party's counsel are inadmissible hearsay. See Wigfall v. Saint Leo Univ., Inc., No. 8:10-CV-02232-T-24-TGW, 2012 WL 717868, at *4 (M.D.Fla. Mar. 6, 2012); TV Interactive Data Corp. v. Sony Corp., No. C 10-0474 PJH, 2012 WL 6020113, at *22 (N.D.Cal. Dec. 3, 2012). Thus, according to Firestone, Plaintiffs' charts should be stricken from the record. Plaintiffs respond that "[t]hese charts are admissible as summary under Rule Federal Rules of Evidence.â Presumably, Plaintiffs are referring to Rule 1006 which states "[t]he proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.â Fed. R. Evid. 1006. Plaintiffs have also attached what appear to be the admissible business records upon which they relied in making the charts. Accordingly, because the charts merely summarize the underlying documents (that appear to fall within the hearsay exception for business records), the court will consider the charts for the limited purpose of providing a summary. See Martin v. Nabors Offshore Corp., No. 00-3284, 2002 WL 34360292, at *3 (E.D.La. Apr. 2, 2002) ("Rule 1006 recognizes that it often takes a legion of documents and a great deal of court time to establish a single point.â); see also United States v. Davis, 261 F.3d 1, 42 n. 37 (1st Cir.2001) (''Summary charts offered pursuant to Fed.R.Evid. 1006, governing charts summarizing voluminous writings, must also be grounded in admissible evidence.â).
. The court has not been provided the records the EEOC evidently relied upon in determining that Cooper was "similarly demoted ... as the Charging Parties.â Firestone has not supplied the court with any evidence indicating whether Cooper was demoted when the Crumb Unit closed.
. Plaintiffsâ âmain argumentâ seems to have shifted during the course of litigation. During Defratesâs deposition, Plaintiffsâ counsel stated, "The reason we're here and the nature of my suit is in training.... Do you understand thatâs what my lawsuit is about?â See Docket No. 76, Exhibit 15, Pages 29-30.
. It is unclear which Plaintiffs are asserting hostile work environment claims. In Plaintiffsâ Response to Defendantâs Motion for Summary Judgment (# 76), Plaintiffs cited to different depositions to support their claims. Accordingly, the court construes Plaintiffs' citations as indicative of which Plaintiffs are asserting a particular claim.
. See Wood v. Moss, â U.S. â, 134 S.Ct. 2056, 2061, 188 L.Ed.2d 1039 (2014) (discussing demonstrators lining up outside a restaurant to protest President George W. Bushâs policies); Mahoney v. Babbitt, 105 F.3d 1452, 1453 (D.C.Cir. 1997) (describing how demonstrators attempted to protest President Clintonâs policies during his second inaugural parade); Ethredge v. Hail, 996 F.2d 1173, 1174 (11th Cir.1993) (listing plaintiffs bumper stickers that were critical of Presidents George H.W. Bush and Reagan); McGurran v. Veterans Admin., 665 F.2d 321, 322 (10th Cir.1981) (describing union demonstratorsâ distribution of caricatures of President Carter to protest his proposed limits on federal salary increases); Glasson v. City of Louisville, 518 F.2d 899, 900 (6th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975) (explaining that a demonstrator waited for President Nixonâs motorcade to drive by so she could hold up a poster criticizing his administrationâs foreign policy); United States v. Kroncke, 459 F.2d 697, 699 (8th Cir.1972) (detailing objections defendants had to the Military Selective Service Act of 1967 and President Johnsonâs foreign policy in Vietnam).