1

Although Walker cites 42 U.S.C. § 1981 in his complaint and

asserts that his action is brought under § 1981, see Compl. ¶ 3, he

does not explicitly allege such a claim and instead asserts an

action under Title VII. Norris does not view the complaint as

asserting a § 1981 cause of action, because it moves for summary

judgment on all claims asserted against it, see D. Br. 1, but does

not specifically address § 1981. The court likewise does not

construe his complaint as asserting this cause of action. The

court reached a similar result in Grace v. Bank of America, 2003 WL

23095993, at *1 n.1 (N.D. Tex. Dec. 23, 2003) (Fitzwater, J.)

(addressing motion to dismiss). The same attorney who represented

the plaintiff in Grace represents plaintiff in this case, and the

complaints in both cases are similarly constructed. If in future

cases counsel intends to file § 1981 claims on behalf of his

clients, he should clearly allege such a cause of action rather

than merely advert to the statute. 

Walker states in his complaint that Norris’ actions had a

“disparate impact” on him, see Compl. ¶ 24, and he refers in his

brief to “statistical disparities” that disadvantaged AfricanAmericans, see P. Br. 2. He does not, however, clearly allege the

elements of a disparate impact cause of action and does not refer

to such a claim in his response brief, and the court has not

construed his complaint as asserting such a claim. 

Walker also refers in his complaint, see Compl. ¶ 3, and in

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROY WALKER, §

 §

Plaintiff, §

 § Civil Action No. 3:03-CV-1009-D

VS. §

 §

NORRIS CYLINDER COMPANY, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

Plaintiff Roy Walker (“Walker”) sues defendant Norris Cylinder

Company (“Norris”) to recover for race discrimination and

retaliation, in violation of Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000e et seq.,1 contending that

 

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his brief, see P. Br. 1, to Norris’ failure to provide him with a

reasonable accommodation. There is no apparent legal basis,

however, for alleging that a person is entitled to be reasonably

accommodated based on his race, and the court need not address such

a claim if made. See D. Reply Br. 2 (noting irrelevance of

reasonable accommodation claim). 

2The court recounts the evidence favorably to Walker, as the

summary judgment nonmovant, and draws all reasonable inferences in

his favor. See, e.g., Clift v. Clift, 210 F.3d 268, 270 (5th Cir.

2000). 

- 2 -

Norris terminated his employment and otherwise discriminated

against him based on his African-American race, retaliated against

him for complaining about discrimination, and subjected him to a

racially-hostile work environment. Norris moves for summary

judgment. For the reasons that follow, the court grants the motion

in part and denies it in part.

I

Norris manufactures metal tanks.2

 Walker was a billet saw

operator at Norris for over 14 years. Billet saw operators at

Norris use a billet saw to cut steel beams, called billets, into

smaller pieces, called mults. While at Norris, Walker received

written worksheets each day that specified a minimum and maximum

weight range for each mult to be cut. After Walker cut each mult,

he was required to weigh it to ensure that it fell within the

target weight range. The scale automatically recorded the weight

of each mult weighed, and Norris used the recorded weights to

determine how much to pay its steel supplier.

In November 2001 Norris changed from square-shaped billets to

 

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- 3 -

round ones. Unlike the square billets, the round billets had a

tendency to roll when they were on the table. On November 29,

while Walker was using the magnet designed for the square billets

to move a round billet, a 400 lb. billet almost rolled off the

table onto his foot. His supervisor, Tim Shiflet (“Shiflet”), was

present when this occurred. Walker informed Shiflet that he wanted

to see the Plant Manager, Brian McGuire (“McGuire”). Shiflet

responded that he could not see him and asked him why he wanted to

speak with McGuire. Walker responded, “You almost let this round

steel run off the table on my foot, could have hurt me.” D. App.

33. Shiflet “blew up” and yelled at Walker that he was sick and

tired of his telling management how to run the plant, and he also

told Walker that he was sick of him. See id. at 33-34, 70-71. He

said, “I want you to go,” and “I’ll get me somebody to run this

Labor Grade 3 job.” Id. at 33. Later that day, Norris installed

a safety device to prevent the round billets from rolling off the

table. The next day, Walker met with the Production Manager, Fred

Grindle (“Grindle”), about the incident. During the meeting,

Walker blamed Shiflet for failing to install proper safeguards that

could have prevented the accident.

After Norris converted to round billets, saw blades began

sustaining more damage than usual. When a blade is broken,

production on a saw stops and someone must replace the blade, which

may take anywhere from ten minutes to one hour. Shiflet often

 

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complained to Walker that he was damaging saw blades and that it

was his fault. In doing so, Shiflet raised his voice, but he was

not physically violent. Shiflet’s criticisms of Walker’s

performance were regular, often more than once daily.

From this point on, Walker regularly complained to Shiflet

that he was discriminating against him. He continually informed

Shiflet that he felt that Shiflet was discriminating against him by

treating him differently from his coworkers. Walker asked to speak

to upper management about the discrimination, but Shiflet would not

permit him to do so. He was threatened with his job security if he

chose to continue to discuss racial issues with upper management.

Walker called a meeting with Grindle to discuss the blades

being damaged and Shiflet’s complaints that Walker was responsible.

In meetings with Grindle and Shiflet, Walker stated that he was

running the saw in the same manner as did Caucasian saw operators.

In an April 26, 2002 meeting, Grindle, Shiflet, and Walker

discussed problems with Walker’s performance, his opinions on how

the operation could be improved, and plans for further evaluation.

Walker pointed out several problems with the blades being damaged

because of Norris’ conversion to round billets. He told Grindle

and Shiflet that the same problems occurred with Caucasian

operators. Walker also informed Grindle that Shiflet was harassing

him and treating him differently from other coworkers and that he

had been threatened with termination. Grindle advised Walker that

 

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- 5 -

they would begin evaluating his work. Shiflet was assigned to

observe Walker operate the billet saw and positioned himself near

the saw where he could observe but not interfere.

On May 2, 2002 Walker again met with Grindle and Shiflet.

Shiflet told Grindle that Walker was damaging saw blades and

letting mult end cuts fall off in the saws. Walker explained to

Grindle the problem he was having with the saws, and Grindle

responded that it was Walker’s responsibility to operate the saws

under all conditions. Walker was sent home early after this

meeting and was not allowed to complete his full 12-hour shift.

On May 6 and 7, 2002 Shiflet observed Walker’s work all day

long. On May 7 Shiflet instructed Walker not to make end cuts on

a billet if it did not have at least three inches clamped in an

index holding the billet at the end. Shiflet avers that, the same

day, he saw Walker violate his instruction, which caused extensive

damage to the blade and to the saw itself. Walker contends that he

could not see the end of the billet to know whether there were at

least three inches clamped in the index prior to cutting.

The same day, while Shiflet observed Walker’s work, Walker cut

and weighed a mult that exceeded the target weight. Rather than

reject the mult, he voided out the scale’s reading and cut a new

mult. He then weighed the new mult twice and sent both the

overweight mult and the new mult down the production line. Walker

maintains that he had been trained to send a mult down the

 

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- 6 -

production line, even if it was overweight, if the mult would still

make a part. Another Norris employee, Wayne Stoker (“Stoker”),

avers that he was trained the same way. Both maintain that

Caucasian employees participated in this practice, including

switching out the mult weights, without being disciplined.

On May 7, 2002 Shiflet and Grindle met with Walker to discuss

both incidents. Walker was given one employee discipline notice

for failing to carry out supervisor instructions and a separate

notice for falsifying company records. Afterwards, Grindle and

Shiflet recommended to the Norris Cylinder Management Review

Committee (“Committee”) that Walker be suspended for one week for

failing to carry out supervisor instructions and that he be

terminated for falsifying company records. The Committee accepted

both recommendations and terminated Walker’s employment the same

day.

II

Norris first moves for summary judgment on Walker’s race

discrimination claim. 

A

As a threshold matter, the court must determine whether Norris

moves for summary judgment as to each component of this cause of

action. In its opening brief, Norris treats this claim as if it is

based only on Walker’s termination. See D. Br. 7-9. In the

introduction section of his opposition brief, however, Walker

 

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3He also includes a similar argument as a basis for his

hostile work environment claim. See P. Br. 15.

4The fact that Norris addresses these components in its reply

brief is of course insufficient to raise the issue. See Senior

Unsecured Creditors’ Comm. of First RepublicBank Corp. v. FDIC, 749

F. Supp. 758, 772 (N.D. Tex. 1990) (Fitzwater, J.) (declining to

consider party's argument raised for first time in reply brief).

- 7 -

posits that Norris discriminated against him “by solely monitoring

and criticizing his work performance, which was only done to

employees of African-American descent[.]” P. Br. 2.3

 He does not

appear to address his termination until the part of his brief that

pertains to his retaliation claim. See, e.g., id. at 19. In

Norris’ reply brief, it recognizes that Walker bases his

discrimination claim on the monitoring and criticizing of his work

performance. See D. Reply Br. 4. Accordingly, in view of the

parties’ briefing, the court construes Walker’s Title VII race

discrimination claim to be predicated on his termination and on

Norris’ conduct in monitoring and criticizing his work performance.

Because Norris did not in its combined opening brief and

motion move for summary judgment dismissing the work monitoringand criticism-based components of Walker’s race discrimination

claim (apart from doing so in the context of his hostile work

environment claim), the court declines to grant summary judgment

dismissing these elements. See John Deere Co. v. Am. Nat’l Bank,

809 F.2d 1190, 1192 (5th Cir. 1987) (holding that it is error for

court to grant summary judgment on ground not properly raised).4

 

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- 8 -

B

The court now considers Norris’ motion to the extent addressed

to Walker’s termination-based race discrimination claim. Because

Norris will not have the burden of proof at trial on Walker’s

claim, it can meet its summary judgment obligation by pointing the

court to the absence of evidence to support it. See Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986). Once it does so, Walker must

then go beyond his pleadings and designate specific facts showing

there is a genuine issue for trial. See id. at 324; Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per

curiam). An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary

judgment is mandatory if he fails to meet this burden. Little, 37

F.3d at 1076. 

In the context of a Title VII race discrimination claim,

Walker must present sufficient direct or circumstantial evidence

that would permit a reasonable trier of fact to find that his

African-American race was a motivating factor in the decision to

discharge him. See, e.g., Roberson v. Alltel Info. Servs., 373

F.3d 647, 652 (5th Cir. 2004) (addressing Title VII claims for

race, color, religion, sex, or national origin discrimination).

“Direct evidence is evidence that, if believed, proves the fact of

discriminatory animus without inference or presumption.” West v.

 

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5Walker does not rely on a mixed-motive theory, so the court

need not address the part of Rachid that addresses that means of

ground for establishing discrimination.

- 9 -

Nabors Drilling USA, Inc., 330 F.3d 379, 384 n.3. (5th Cir. 2003)

(Fitzwater, J.) (age discrimination case) (quoting Sandstad v. CB

Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)). Because

Walker has not adduced direct proof of race discrimination, he must

rely on circumstantial evidence.

A circumstantial case of race discrimination may be proved

using the McDonnell Douglas burden-shifting framework. McDonnell

Douglas consists of three stages. First, Walker must establish a

prima facie case of discrimination, which “creates a presumption

that [Norris] unlawfully discriminated against [him].” Tex. Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). The burden

then shifts to Norris to articulate a legitimate, nondiscriminatory

reason for discharging Walker. See id. at 253. If Norris meets

its production burden, Walker must “offer sufficient evidence to

create a genuine issue of material fact . . . that [Norris’] reason

is not true, but is instead a pretext for discrimination.” Rachid

v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2001) (age

discrimination case).5

 

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6

Walker does not expressly or inferentially dispute that this

is a work-rule violation case. Additionally, it does not appear

that he can establish a prima facie case under the formulation that

requires that he was replaced by a person who is not AfricanAmerican, and he makes no attempt to satisfy his prima facie burden

on that basis. See P. Br. 9 (setting out prima facie case elements

that do not include replacement by person outside protected class).

- 10 -

C

This is a work-rule violation case because Norris maintains

that it terminated Walker for falsifying company records.6

 “In

work-rule violation cases, a Title VII plaintiff may establish a

prima facie case by showing ‘either that he did not violate the

rule or that, if he did, white employees who engaged in similar

acts were not punished similarly.’” Mayberry v. Vought Aircraft

Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (quoting Green v. Armstrong

Rubber Co., 612 F.2d 967, 968 (5th Cir. 1980)). The court

concludes that Walker has created a fact issue with regard to both

alternatives.

First, Walker has made a showing that he may not have violated

the work rule. Walker admits that he cut and weighed an overweight

mult. He also acknowledges that, rather than reject it, he voided

out the original record that showed the overweight mult, cut a new

one, twice weighed the new mult, and sent both down the production

line. But he maintains that his actions were in compliance with,

not in violation of, Norris’ procedures. He contends he was

instructed by at least two supervisors that, if an overweight mult

would make a part, it was proper to void out the weight reading and

 

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- 11 -

move the mult down the line. In his affidavit, Walker avers that

“[a]ll of the billet saw operators follow this practice.” P. App.

5. Moreover, Wayne Stoker (“Stoker”), a current Norris employee,

avers in his affidavit that he was also instructed by two

supervisors to send certain overweight mults down the line. A

reasonable trier of fact could find that Walker had been instructed

as he contends, and that his actions did not violate any work rule.

Second, even if Walker’s acts did violate the work rule, he

has adduced evidence that would permit a reasonable trier of fact

to find that “white employees who engaged in similar acts were not

punished similarly.” Mayberry, 55 F.3d at 1090. “To establish a

prima facie case in this manner, [Walker] must show that white

employees were treated differently under circumstances ‘nearly

identical’ to his.” Id. (quoting Little v. Republic Ref. Co., 924

F.2d 93, 97 (5th Cir. 1991); Smith v. Wal-Mart Stores, 891 F.2d

1177, 1180 (5th Cir. 1990) (per curiam); Davin v. Delta Air Lines,

Inc., 678 F.2d 567, 570-71 (Former 5th Cir. 1982)). Walker and

Stoker both aver in their affidavits that, on numerous occasions,

they witnessed Caucasian billet saw operators, in Shiflet’s

presence, weigh acceptable mults twice and send overweight mults

down the production line. Although Walker does not aver

specifically that the Caucasian employees were not also terminated

for the practice, the court infers, based on two grounds, that they

were not. First, Walker and Stoker had no reason to point to

 

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- 12 -

Caucasian employees’ use of this practice except to corroborate

that Walker was treated disparately. Second, Norris neither denied

that Caucasians took part in the practice nor alleged that they

were terminated for doing so. See Clift v. Clift, 210 F.3d 268,

270 (5th Cir. 2000) (holding that, at the summary judgment stage,

the court must draw all reasonable inferences in favor of the nonmoving party). Viewing the evidence in the light most favorable to

Walker, the court holds that a reasonable trier of fact could find

that he engaged in the same practices as Caucasian employees in

Shiflet’s presence and was terminated for the practices, while the

Caucasian employees were not. Thus Walker has established a prima

facie case of race discrimination based on his termination for a

work-rule violation.

D

To rebut the presumption of unlawful discrimination raised by

Walker’s prima facie case, Norris must produce evidence that it

discharged Walker for a legitimate, nondiscriminatory reason. See

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993).

Norris “‘must clearly set forth, through the introduction of

admissible evidence,’ reasons for its actions which, if believed by

the trier of fact, would support a finding that unlawful

discrimination was not the cause of the employment action.” Id. at

507 (quoting Burdine, 450 U.S. at 254-55) (emphasis omitted).

Norris’ burden is one of production, not proof, and involves no

 

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- 13 -

credibility assessments. See, e.g., West, 330 F.3d at 384-85.

Thus “it is sufficient if [Norris’] evidence raises a genuine issue

of fact as to whether it discriminated against [Walker.]” Burdine,

450 U.S. at 254; see also Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 142 (2000). If Norris meets its burden, then

the presumption of discrimination raised by Walker’s prima facie

case is rebutted and “simply drops out of the picture.” St. Mary’s

Honor Ctr., 509 U.S. at 510-11.

Norris has met its burden of production. In its brief, it

points to summary judgment evidence that it terminated Walker’s

employment for falsifying company records, in violation of a rule

contained in the employee handbook. This is the same reason listed

on the Personnel Action Notice that Shiflet and Grindle signed the

day Walker was discharged. Walker admitted that he voided out an

overweight mult’s weight reading and weighed an acceptable mult

twice. An employee’s violation of a company work rule is a

legitimate, nondiscriminatory reason for discharging him. See,

e.g., Dean v. Kimberly-Clark Corp., 2005 WL 309509, at *3 (N.D.

Tex. Feb. 8, 2005) (Kinkeade, J.) (holding that employer had

satisfied its burden of articulating a legitimate,

nondiscriminatory reason for discharging employee by offering proof

that to establish that it discharged employee for violating

disciplinary policy and work rule).

 

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- 14 -

E

Because Norris has met its burden of production, the

presumption of discrimination raised by Walker’s prima facie case

has dropped out of the picture. In order for Walker to survive

summary judgment, he must create a fact issue regarding the

ultimate question of discrimination. He may satisfy his burden by

showing “that the legitimate reasons offered by [Norris] were not

its true reasons, but were a pretext for discrimination.” Reeves,

530 U.S. at 143. That is, Walker must produce sufficient evidence

for a reasonable trier of fact to find either that Norris’

proffered explanation is unworthy of credence or that a

discriminatory reason more likely motivated Norris’ decision to

terminate him. See Burdine, 450 U.S. at 256. “[T]he trier of fact

may still consider the evidence establishing the plaintiff's prima

facie case ‘and inferences properly drawn therefrom . . . on the

issue of whether the defendant's explanation is pretextual.’”

Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 255 n.10).

For the reasons set out supra at § II(C), the court holds that

Walker has introduced sufficient evidence to create a genuine issue

of fact regarding whether he violated Norris’ policies. If the

trier of fact were to find that Walker did not violate Norris’

policies, as Norris contends, it would then be permitted to “infer

the ultimate fact of discrimination from the falsity of [Norris’]

explanation.” Id. at 147. Even if Walker did violate Norris’

 

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7The court does not typically wait until after it has

explained its ruling on the merits to address evidentiary

objections because the rulings impact the evidence to be considered

in deciding the merits of the summary judgment motion. It is doing

so in this case, however, because its reasoning and the relevance

of the objections are more readily understood in light of the

preceding decision on the merits.

- 15 -

policies, he has also produced sufficient evidence for a reasonable

trier of fact to find that he was disciplined differently from

Caucasian employees who also violated the policies. There are

therefore genuine issues of material fact as to the veracity of

Norris’ explanation and whether Walker’s African-American race

motivated Norris’ decision to terminate him. Accordingly, the

court denies Norris’ motion for summary judgment as to Walker’s

race discrimination claim.

F

Norris objects to certain evidence that the court has relied

on in reaching its decision. The court now rules on the

objections.7

Walker states in his affidavit: “If a mult will make a part,

I was taught to make the part even though the mult did not meet

specifications.” P. App. 5. Second, Walker avers: “Shiflet has

been present on numerous moments when this practice/procedure was

conducted by other Caucasian billet saw operators. I have

witnessed this practice take place in his presence.” Id. Norris

objects to this testimony on the grounds that it is conclusory and

that Walker’s affidavit fails to set out adequate facts and/or

 

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- 16 -

foundation and that the statements are vague and fail to set out an

adequate basis to conclude that the statements are within Walker’s

personal knowledge. The court overrules the objections. 

The averments are not so vague, conclusory, or without

foundation that they cannot be used as competent summary judgment

evidence. Cf. Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc.,

831 F.2d 77, 80 (5th Cir. 1987) (“[T]he papers of a party opposing

summary judgment are usually held to a less exacting standard than

those of the moving party”). Moreover, Walker avers that each of

the facts set forth in his affidavit is within his personal

knowledge and is true and correct, see P. App. 1, and the court

does not conclude otherwise. Moreover, although Fed. R. Civ. P.

56(e) requires that “opposing affidavits shall be made on personal

knowledge” and “shall set forth such facts as would be admissible

in evidence,” Rule 56(e), “[t]he affidavit need not affirmatively

state that [he] is competent to testify so long as the record as a

whole shows [his] testimony meets the requirements of Rule 56.”

Crank v. Crank, 1997 WL 538736, at *4 (N.D. Tex. Aug. 21, 1997)

(Fitzwater, J.) (citing Lodge Hall Music, 831 F.2d at 80;

Brueggemeyer v. Am. Broad. Cos., 684 F. Supp. 452, 463 (N.D. Tex.

1988) (Fitzwater, J.)), aff’d, 146 F.3d 868 (5th Cir. June 4, 1998)

(unpublished table decision) (per curiam). Walker’s statements

merely recount events that he says he personally observed. His

position as an employee, coupled with averments that demonstrate

 

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- 17 -

his knowledge of the relevant company operations, establish

sufficient personal knowledge for the facts asserted. See FSLIC v.

Griffin, 935 F.2d 691, 702 (5th Cir. 1991) (holding that affiant’s

position as bank vice president and senior attorney demonstrated

personal knowledge as to some statements in summary judgment

affidavit). To the extent Norris has objected to other statements

within Walker’s affidavit, the objections are moot because the

court has not relied on the evidence in deciding Norris’ motion.

The court also relies in part on statements made in the

affidavit of Stoker, another Norris employee. Norris objects to

this affidavit in its entirety on the ground Walker failed to list

him in his Rule 26(a)(1) initial disclosures as an individual

likely to have discoverable information. Although Walker did not

make the required disclosure, Norris has not shown why it has been

prejudiced by this failure. Absent such a showing, the court

declines to strike the affidavit at the summary judgment stage

based on the Rule 26(a)(1) violation. See Snowman v. IMCO

Recycling, Inc., 347 F.Supp.2d 338, 346 (N.D. Tex. 2004) (Lindsay,

J.) (declining to strike summary judgment affidavit where court

observed, inter alia, that objecting party had not shown harm or

prejudice from failure to disclose). 

Norris objects to the following statement in Stoker’s

affidavit: “When I trained on the billet saw, Carl Gregg and Tim

Shiflet told me if I feel that a mult would make a part to put it

 

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- 18 -

on the line regardless of its size.” P. App. 8. Norris first

objects on the basis of hearsay, which the court overrules.

Gregg’s and Shiflet’s statements are not hearsay because they are

not offered for the truth of the matter asserted. See Fed. R.

Evid. 801(c) (“‘Hearsay’ is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.”). They are

offered simply to prove that the statements were made——i.e., that

Gregg and Shiflet gave Stoker these instructions during

training——regardless of their truth. Norris also objects on the

basis that the statement fails to set out an adequate foundation

and is too ambiguous to be considered summary judgment evidence.

The objection lacks merit. Stoker is simply relaying what he says

he was instructed; his statements do not require any additional

foundation, nor are they conclusory.

Norris objects to Stoker’s statements about observing

Caucasian saw operators switching mult weights in Shiflet’s

presence. It challenges the statements as conclusory and as

failing to set out an adequate foundation. For the same reasons as

above, the court holds that the objection lacks merit. 

Norris objects on the basis that Stoker could not have known

that the mults that were switched were overweight, because he would

not know the weight specifications for the mults to be processed

that day. The court disagrees. Stoker would not need to know the

 

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8In some circumstances, a plaintiff asserting a claim of

hostile work environment must also prove a fifth element: that “the

employer knew or should have known of the harassment in question

and failed to take prompt remedial action.” Celestine, 266 F.3d at

353. But where, as here, “the harassment is allegedly committed by

a supervisor with immediate (or successively higher) authority over

the harassment victim, the plaintiff employee needs to satisfy only

- 19 -

weight specifications or that a mult was overweight to know that he

was observing the switching of mults. 

Accordingly, Norris’ objections to these statements are

overruled. To the extent Norris has objected to other statements

in Stoker’s affidavit, the objections are moot because the court

has not relied on the evidence in deciding Norris’ motion.

Norris’ objections to the written statement of Rayfus Wady are

moot because the court has not relied on the statement in deciding

this motion.

III

Norris also moves for summary judgment as to Walker’s claim of

a racially hostile work environment. 

A

To establish a prima facie case of hostile work environment,

Walker must show that “(1) [he] belongs to a protected group; (2)

[he] was subjected to unwelcome harassment; (3) the harassment

complained of was based on race; [and] (4) the harassment

complained of affected a term condition or privilege of

employment.” Celestine v. Petroleos de Venezuella SA, 266 F.3d

343, 353 (5th Cir. 2001).8 “For harassment to affect a ‘term,

 

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the first four of the elements listed above.” Id.; see also

Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998);

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).

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condition, or privilege of employment’ it must be ‘sufficiently

severe or pervasive so as to alter the conditions of employment and

create an abusive working environment.’” Id. (quoting Watts v.

Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999)); see also Harris v.

Forklift Sys., 510 U.S. 17, 21 (1993) (sexual harassment case).

“Actionable harassment must involve ‘racially discriminatory

intimidation, ridicule[,] and insults.’” Felton v. Polles, 315 F.3d

470, 485 (5th Cir. 2002) (quoting Walker v. Thompson, 214 F.3d 615,

625 (5th Cir. 2000)) (applying Title VII case law to a claim

brought under 42 U.S.C. § 1983); see also Harris, 510 U.S. at 21.

“In determining whether a workplace constitutes a hostile work

environment, courts must consider the following circumstances: ‘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

employee’s work performance.’” Ramsey v. Henderson, 286 F.3d 264,

268 (5th Cir. 2002) (quoting Walker, 214 F.3d at 625).

B

Walker admits that he was never subjected to racial slurs or

derogatory remarks. Rather, to support his racial harassment

claim, he points to Shiflet’s observation and criticism of his

work. He also cites evidence that he was disciplined differently

 

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9

The court does not suggest that constant observation and

criticism of a person of one race by someone of another race can

never amount to a racially hostile work environment. It holds only

that Walker’s evidence is insufficient to permit a reasonable trier

to fact to find such an environment in this case.

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from Caucasian employees for the same conduct. 

It is not altogether clear that Shiflet’s mere observation and

criticism, unaccompanied by any hint of racial slurs or derogatory

remarks or race-based comments, constitute harassment at all, as

the second element of the prima facie case requires.9 Even

assuming arguendo that Shiflet’s actions do constitute harassment,

however, they are not the type of “racially discriminatory

intimidation, ridicule[,] and insults” that are “severe or

pervasive enough to create an objectively hostile or abusive work

environment.” Walker, 214 F.3d at 625 (holding that fact issue

existed as to racial harassment where plaintiffs were subjected to,

inter alia, “comparisons to slaves and monkeys, derisive remarks

regarding their African heritage, patently offensive remarks

regarding the hair of African-Americans, and conversations in which

a co-worker and supervisor used the word ‘ni--er’”). Shiflet’s

actions, if admissible, may be probative to the factfinder in the

pretext portion of Walker’s disparate treatment claim. But they

are insufficient to permit a reasonable trier of fact to find that

Walker was subjected to a racially hostile work environment.

Norris’ motion is granted with respect to Walker’s hostile work

environment claim.

 

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IV

Norris moves for summary judgment dismissing Walker’s

retaliation claim. 

A

Where, as here, Walker offers no direct evidence that Norris

retaliated against him, the method of proof set out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. See

Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir.

2001) (citing Portis v. First Nat’l Bank, 34 F.3d 325, 328 (5th

Cir. 1994) (holding that McDonnell Douglas applies when plaintiff

has presented only circumstantial evidence of retaliatory animus)).

Walker must first establish a prima facie case of retaliation. To

do so, he must demonstrate that (1) he engaged in a protected

activity, (2) an adverse employment action occurred, and (3) a

causal link existed between the protected activity and the adverse

employment action. Long v. Eastfield Coll., 88 F.3d 300, 304 (5th

Cir. 1996). The burden then shifts to Norris to articulate a

legitimate, nondiscriminatory reason for the alleged retaliatory

action taken. Norris’ burden is one of production, not of proof.

If Norris meets its production burden, Walker must adduce evidence

that would permit a reasonable trier of fact to find that “[his]

termination . . . would not have occurred ‘but for’ [his] protected

conduct.” Montemayor, 276 F.3d at 692. “At the summary judgment

stage, the nonmovant need only point to the existence of a genuine

 

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- 23 -

issue of material fact.” Gee v. Principi, 289 F.3d 342, 345 (5th

Cir. 2002). “The ultimate determination in an unlawful retaliation

case is whether the conduct protected by Title VII was a ‘but for’

cause of the adverse employment decision.” Long, 88 F.3d at 305

n.4.

B

1

Walker has met the first element and “has engaged in activity

protected by Title VII if he has . . . ‘opposed any practice made

an unlawful employment practice’ by Title VII.” Id. at 304

(quoting 42 U.S.C. § 2000e-3(a)). For opposition to be protected,

Walker must have had “at least a ‘reasonable belief’ that the

practices [he] opposed were unlawful.” Id. (quoting Payne v.

McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir.

Unit A Sept. 1981)).

Walker contends that Norris retaliated against him by

discharging him in part for making a safety complaint to Grindle in

November 2001. At that time, Norris was experimenting with using

round billets rather than square ones. On November 29 Shiflet

instructed Walker to move a round billet with the magnet normally

used to move square billets. While Walker was moving the round

billet in Shiflet’s presence, the billet began to roll and nearly

rolled off the table onto Walker’s foot. The next day, Walker

complained to Grindle about the incident, and he contends that this

 

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10Of course, Title VII would protect an employee from a work

environment that is unsafe or abusive as a result of race-based

harassment. But Title VII does not protect employees from

workplace hazards that lack discriminatory intent or impact.

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complaint was part of the impetus for his discharge.

Even if Walker is able to prove his allegation, however, the

November 2001 complaint is not protected activity under Title VII.

As noted, Title VII prevents an employer from retaliating against

an employee who opposes an employment practice that Title VII makes

unlawful or one that the employee reasonably and in good faith

believes Title VII makes unlawful.10 Even if Walker subjectively

believed that the practices he opposed were unlawful under Title

VII, his belief would not have been objectively reasonable. See

Wilson v. Delta State Univ., 2005 WL 1939678, at *3 (5th Cir. Aug.

12, 2005) (per curiam) (unpublished opinion) (holding that

employee’s belief about employment practice is not reasonable if it

is settled law that practice is not unlawful within Title VII).

Therefore, the November 2001 complaint is not a basis on which

Walker can establish a prima facie case of retaliation.

Walker also points, however, to complaints of discrimination

that he made throughout the time Shiflet was his supervisor. He

contends that he filed a discrimination complaint against Shiflet

in May or June 2001. He also avers that, in meetings with Grindle

and Shiflet to discuss Walker’s damage to saw blades, he told them

that he was operating the saw in the same manner as Caucasian

 

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- 25 -

operators and that he was being singled out because of his race.

He specifically asserts that, in a meeting in April 2002, the month

before he was terminated, he informed Grindle that Shiflet was

harassing him, that he was being treated different from Caucasian

saw operators, and that he had been threatened with termination.

Regardless whether Shiflet had actually been discriminating against

him, Walker could reasonably have believed that he was

discriminated against by being singled out for damaging saw blades

when Caucasian employees were not. His complaints of

discrimination are thus protected activities, and Walker has

produced sufficient evidence to meet the first element of a prima

facie case.

2

The second element is uncontested; Walker suffered an adverse

employment action when he was discharged.

3

As to the third element, the initial requirement that a

plaintiff show a “causal link” between protected activity and an

adverse employment action is “much less stringent” than the “but

for” causation that a jury must find. Montemayor, 276 F.3d at 692;

see Khanna v. Park Place Motorcars of Houston, Ltd., 2000 WL

1801850, at *4 (N.D. Tex. Dec. 6, 2000) (Fitzwater, J.)

(characterizing prima facie burden as “minimal”). Walker has

adduced evidence showing that he made complaints about Shiflet to

 

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- 26 -

Grindle, that both Shiflet and Grindle had knowledge of the

complaints, and that Shiflet and Grindle recommended that the

Committee terminate Walker’s employment. This is sufficient to

make a prima facie showing of causation. See Long, 88 F.3d at 306.

The fact that the Committee actually terminated Walker does not

break the chain of causation because the Committee accepted Shiflet

and Grindle’s recommendation without conducting its own independent

investigation into the allegations against him. See id. at 307.

C

Norris’ proffered legitimate, nonretaliatory reason for

discharging Walker is that he falsified company records. As the

court explains supra at § II(D), Norris has met its burden of

production.

D

Walker is thus obligated to introduce evidence that creates a

genuine issue of material fact regarding the ultimate question

whether Norris unlawfully retaliated against him. He has adduced

evidence showing that he made numerous complaints about Shiflet’s

discrimination going as far back as May or June 2001. He has also

introduced evidence that Shiflet observed his work performance

individually for a period of time, yet Caucasian saw operators who

regularly broke saw blades were not similarly observed. A

reasonable trier of fact could find, for example, that Shiflet and

Grindle became frustrated with Walker’s numerous complaints of

 

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- 27 -

discrimination and undertook a course of conduct that was designed

to secure his termination. From this evidence of pretext, a

reasonable trier of fact could find retaliation. 

Accordingly, Norris’ motion for summary judgment on Walker’s

retaliation claim is denied.

* * *

Norris’ December 1, 2004 motion for summary judgment is

granted in part and denied in part.

SO ORDERED.

September 19, 2005.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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