United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION  FOR SUMMARY JUDGMENT AND
DISMISSING PLAINTIFF’S CLAIMS
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
THE COURT is the Motion  for Summary Judgment filed by
Defendants VT Halter Marine, Inc., David Newell, Russell
Woodward, Cecil Maxwell, and Zachary Anderson. After due
consideration of the record, Defendants’ Motion, and
relevant legal authority, the Court is of the opinion that
Defendants are entitled to judgment as a matter of law, and
their Motion  should be granted.
Johnson’s employment at VT Halter Marine, Inc.
VT Halter Marine, Inc. (“VTHM”) engages in the
design and construction of commercial and military vessels,
and at the times relevant to this lawsuit, it operated three
shipyards in Pascagoula and Moss Point, Mississippi. Decl. of
Stephenie Murray [88-4] at ¶ 1. These shipyards were known,
respectively, as the Halter Moss Point shipyard, the Moss
Point Marine shipyard, and the Halter Pascagoula shipyard.
April 2010 to November 2012, Plaintiff Antonio Johnson
(“Johnson” or “Plaintiff”) worked at
the Halter Pascagoula shipyard as a contract worker through a
contract labor company called AmeriForce. Id. at
¶ 4. Johnson was a “Helper” and later became
a “Tool Room Attendant” through AmeriForce.
Id. In November 2012, Johnson was hired as a VTHM
employee and assigned as a Tool Room Attendant at the Halter
Pascagoula shipyard. Id. On September 1, 2014,
Johnson was reassigned to the Moss Point Marine shipyard, and
in mid-February 2015, he was moved back to the Halter
Pascagoula shipyard as a Tool Room Repairer/Tool Room
his employment at VTHM, Johnson worked in the Tool Room as
either a Tool Room Attendant or a Tool Repairer. Id.
at ¶ 5. Johnson’s immediate supervisor was the
Warehouse Manager, Mike Albert (“Albert”), who
reported to VTHM’s Vice President of Production, Hank
Stewart (“Stewart”). Id.
to VTHM’s Corporate Human Resources Manager Stephenie
Murray (“Murray”), “during 2016 and 2017,
VTHM was required to implement several reductions-in-force
and shut down both the Halter Moss Point
and Moss Point Marine shipyards during 2016, as the
result of the completion of vessel projects and the lack of
new vessel construction contracts to provide additional
work.” Decl. of Stephenie Murray [88-4] at ¶ 13
(emphasis in original). Murray avers that this was consistent
with past practice on reductions in force, and that the
procedure was to first determine those jobs that could be
deemed non-essential and could be eliminated. Id. at
¶ 14. If more than one incumbent employee was in a job
that could be eliminated during the reduction in force, VTHM
then turned to the employee’s seniority or hire date,
unless an employee had any disciplinary or performance
write-ups during the preceding year that might impact the
of the reduction in force, VTHM management made the decision
to reduce the number of Tool Room Attendants at the Halter
Pascagoula shipyard from three to two. Id. at ¶
15. None of the three Tool Room Attendants, including
Johnson, had any documented disciplinary or performance
actions during the preceding year, but Johnson had the most
recent hire date. Id. Accordingly, on March 5, 2017,
VTHM made the decision to terminate Johnson as part of the
reduction in force. Id. Murray’s Declaration
states that some 20 other VTHM employees were terminated as
part of the reduction before Johnson was terminated.
Id. at ¶ 13. The reduction in force continued
throughout 2017. Id. at ¶ 15.
was scheduled to be advised of his termination and released
as part of the reduction in force on May 5, 2017.
Id. at ¶ 16; Decl. of Iris Favre [88-5] at
¶ 9. Ultimately, Johnson was terminated a day earlier,
on May 4, 2017, “because of an incident that involved
his repeated refusal to perform a job assigned by
his supervisor, Warehouse Manager Mike Albert.” Decl.
of Stephenie Murray [88-4] at ¶ 16 (emphasis in
to Halter Pascagoula shipyard’s Human Resources Manager
Iris Favre (“Favre”), on May 4, 2017, Albert
“came to Human Resources with Antonio Johnson and
reported that he had directed Johnson several times to sort
and inventory nuts and bolts that VTHM had in stock on
consignment from a contractor, ” because Vice President
of Production Hank Stewart (“Stewart”) had
requested an inventory before a scheduled meeting. Decl. of
Iris Favre [88-5] at ¶ 9. Albert informed Favre that
Johnson repeatedly refused to perform the job. Id.
When Favre asked Johnson why he had refused, he “stated
it wasn’t his job to do so as a Tool Room Attendant,
” and he “insisted that the job should be
performed by the contractor . . . .” Id.
and Johnson then “became involved in a loud argument,
” and Favre went to Stewart’s office to advise
him of the situation. Id. After Albert reported to
Stewart what had occurred, Stewart excused Albert and spoke
with Johnson. Id. Stewart “explained that the
job was [Johnson’s] to do as a Tool Room Attendant and
that he was required to perform any job as directed by his
supervisor, ” but “Johnson argued the point
point, Stewart asked Favre to provide him with the VTHM
Change of Status form documenting Johnson’s termination
as part of the reduction in force on May 5, 2017.
Id. Stewart advised Johnson that he was scheduled to
be terminated on that date but that he was terminating
Johnson one day early due to his refusal to help sort the
bolts as instructed. Id.; see also Change
of Status [88-5] at 18 (effective date changed from 5/5/2017
to 5/4/2017). Murray declares that she and the Chief
Executive Officer approved Johnson’s termination. Decl.
of Stephenie Murray [88-4] at ¶ 16.
hired “several employees, both before and after
Johnson’s termination, to meet specific needs to
complete vessel construction, ” but those positions
primarily consisted of skilled Electricians, Shipfitters,
Specialty Welders, and Security Personnel. Id. at
¶ 17. According to Murray, from January 2017 through
November 2018, VTHM did not hire any new Tool Room Attendants
or Tool Room Repairers. Id.
case, Johnson alleges that he “endured numerous actions
of discrimination” during his employment at VTHM, Am.
Compl.  at 3, and that he was terminated in retaliation
for “engag[ing] in the protected activity of voicing
and filing a discrimination complaint with the Equal
Employment Opportunity Commission, ” id. at
4-5. Johnson complains of separate incidents involving each
of the individual Defendants, David Newell
(“Newell”), Russell Woodward
(“Woodward”), Cecil Maxwell
(“Maxwell”), Nathan Shepard
(“Shepard”),  and Zachary Anderson
(“Anderson”). Based upon the record, it appears
that the incidents giving rise to Plaintiff’s claims
occurred on the following dates: (1) those with Shepard
sometime between October 22, 2012, and September 7,
2013; (2) those with Woodward on or before
December 6, 2013; (3) those with Maxwell on July 31, 2014,
see Decl. of Iris Favre [88-5] at ¶ 3; (4)
those with Anderson on October 14, 2014, see
Employee Warning Notice [88-6] at 2; and (5) those with
Newell on March 17, 2017, see Pl.’s Dep.
[88-1] at 81.
resigned from VTHM on September 7, 2013; Woodward resigned on
December 6, 2013; Maxwell resigned on February 29, 2015; and
Anderson resigned on August 15, 2018. Decl. of Stephenie
Murray [88-4] at ¶ 9. Johnson was terminated effective
May 4, 2017. Change of Status [88-5] at 18.
filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on or about May
27, 2017. EEOC Charge [88-1] at 53. He alleged that he was
subjected to race and sex discrimination and to retaliation.
See Id . Johnson provided a statement regarding his
employment and discharge, indicating that he was hired by
VTHM in April 2010, and that on March 17, 2017, a
superintendent referred to him by using a racial epithet.
Id. According to Johnson’s written statement,
was reported and [the superintendent] supposedly was
suspended for three days. Policy states “no
tolerance” for discrimination. I felt that my safety
was threatened. On May 4, 2017, I was laid off.
Superintendent David Newell
Management said it was a reduction in force. But we been
[sic] hiring people for weeks, even same week I was let go.
I believe I was subjected to a hostile environment because of
my race (black) and laid off because of my race (black) and
sex (male) and in retaliation for reporting the
harassment/discrimination in violation of Title VII of the
Civil Rights Act of 1984, as amended. There [illegible]
females who were not laid off, which one had a write-up. I
never was written up, never. They [sic] also were some
employees with more missed time than me, even my [illegible]
boss man Mike Albert. Also were [sic] late more than I was,
which all plays a factor in during layoffs.
EEOC subsequently provided Johnson with a Notice of Right to
Sue, and he timely filed this lawsuit on December 11, 2017.
Johnson filed an Amended Complaint  on May 29, 2018,
which is the operative pleading. The Amended Complaint names
VTHM, Newell, Woodward, Maxwell, Shepard, and Anderson as
Defendants. Johnson’s claims against Shepard were
subsequently dismissed without prejudice pursuant to Federal
Rule of Civil Procedure 4(m). See Order  at 4.
advances claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., against VTHM
for hostile work environment and retaliatory discharge,
see Am. Compl.  at 5-7, and against all
Defendants for intentional race discrimination and
retaliatory discharge under 42 U.S.C. § 1981,
id. at 7-8. Defendants’ Motion  for
Summary Judgment asserts that there are no disputed issues of
material fact and that they are entitled to judgment as a
matter of law on Johnson’s claims. With respect to
Johnson’s claims against the individual Defendants
under § 1981, Defendants argue that there is no
individual liability under that statute, such that these
claims are insufficient as a matter of law. Defs.’ Br.
 at 17-18.
respect to Johnson’s hostile work environment claims
against VTHM, Defendants maintain that these claims are
“based exclusively on Newell’s one
alleged racial comment in May 2017, ” Defs.’ Br.
 at 19 (emphasis in original), and that this one comment
was not sufficiently severe or pervasive to alter the terms
and conditions of Johnson’s employment or to create an
abusive working environment, id. (quoting McCoy
v. City of Shreveport, 492 F.3d 551, 558 (5th Cir.
2007)). Defendants maintain that when Johnson complained to
Human Resources about Newell’s alleged comment,
“VTHM promptly investigated and indisputably took
prompt effective corrective action, ” and that there
was no subsequent racial harassment, precluding
Johnson’s hostile work environment claim. Id.
Johnson’s retaliatory discharge claim against VTHM,
Defendants argue that even if Johnson has produced sufficient
circumstantial evidence to support a prima facie case of
retaliation, “VTHM has produced uncontroverted evidence
to establish that Johnson’s termination was part of
ongoing economic reductions-in-force during 2016 and
2017.” Id. at 23.
Summary judgment standard
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). If the movant carries this burden,
“the nonmovant must go beyond the pleadings and
designate specific facts showing that there is a genuine
issue for trial.” Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
rebut a properly supported motion for summary judgment, the
opposing party must show, with “significant probative
evidence, ” that there exists a genuine issue of
material fact. Hamilton v. Segue Software, Inc., 232
F.3d 473, 477 (5th Cir. 2000). “A genuine dispute of
material fact means that evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Royal v. CCC&R Tres Arboles, L.L.C., 736 F.3d
396, 400 (5th Cir. 2013) (quotation omitted). If the evidence
is merely colorable, or is not significantly probative,
summary judgment is appropriate. Cutting Underwater
Techs. USA, Inc. v. ENI U.S. Operating Co., 671 F.3d
512, 516 (5th Cir. 2012) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986)). In deciding
whether summary judgment is appropriate, the Court views
facts and inferences in the light most favorable to the
nonmoving party. RSR Corp. v. Int’l Ins. Co.,
612 F.3d 851, 858 (5th Cir. 2010).
Johnson’s § 1981 claims against the individual
U.S.C. § 1981 provides that “[a]ll persons within
the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce
contracts . . . as is enjoyed by white citizens . . .
.” 42 U.S.C. § 1981(a). The statute defines the
phrase “make and enforce contracts” to include
“the making, performance, modification, and termination
of contracts, and the enjoyment of all benefits, privileges,
terms, and conditions of the contractual relationship.”
42 U.S.C. § 1981(b). “The rights protected ...