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Johnson v. VT Halter Marine, Inc.

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

September 24, 2019




         BEFORE THE COURT is the Motion [88] for Summary Judgment filed by Defendants VT Halter Marine, Inc., David Newell, Russell Woodward, Cecil Maxwell, and Zachary Anderson.[1] 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 [88] should be granted.


         A. Factual background

         1. Johnson’s employment at VT Halter Marine, Inc.

         Defendant 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.[2] These shipyards were known, respectively, as the Halter Moss Point shipyard, the Moss Point Marine shipyard, and the Halter Pascagoula shipyard. Id.

         From 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 Attendant. Id.

         Throughout 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.

         2. Johnson’s termination

         According 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 decision. Id.

         As part 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.

         Johnson 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 original).

         According 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.

         Albert 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 loudly.” Id.

         At that 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.

         VTHM 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.

         3. Johnson’s complaints

         In this case, Johnson alleges that he “endured numerous actions of discrimination” during his employment at VTHM, Am. Compl. [42] 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”), [3] 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;[4] (2) those with Woodward on or before December 6, 2013;[5] (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.

         Shepard 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.

         B. Procedural background

         Johnson 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, that incident

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.


         The 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 [42] 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 [87] at 4.

         Johnson 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. [42] 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 [88] 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. [89] at 17-18.[6]

         With 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. [89] 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. at 21.

         As for 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.


         A. Summary judgment standard

         Summary 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).

         To 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).

         B. Johnson’s § 1981 claims against the individual Defendants

         42 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 ...

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