IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MONTY BELL, )

)

Plaintiff, )

)

vs. ) CIVIL ACTION NO. 09-0211-CG-C

)

J. RAY MCDERMOTT, INC., )

)

Defendant. )

ORDER

On April 16, 2009, Monty Bell brought a lawsuit against J. Ray McDermott, Inc.

(“McDermott”) claiming that “[t]he defendant unlawfully discriminated against the plaintiff in

retaliation for his opposition to the defendant’s unlawful employment practices, including his

complaints of behavior which violated laws against sexual harassment.” (Doc. 1, p. 5). This

matter is now before the court on the defendant’s motion for summary judgment (Doc. 22), the

plaintiff’s response (Doc. 28), and the defendant’s reply. (Doc. 30). For the reasons stated

below, the defendant’s motion for summary judgment is due to be GRANTED.

FACTS

The defendant hired the plaintiff on March 25, 2008, to work as a crane operator on an

offshore barge/oil rig. (Doc. 23-1, Bell Dep., pp. 2-3). The plaintiff had previously worked for

the defendant between 1980 and 1985 as a rigger, a tower operator, and a crane operator. At the

end of that time, he was laid off by the defendant due to a lack of available work. (Doc. 29-4,

Bell Dep., pp. 5-11). When the plaintiff was hired by the defendant in 2008, he interviewed with

and was hired by the general superintendent, Willy Hall (“Hall”). (Id., p. 12). Upon being hired,

the plaintiff was first assigned to barge DB 50, but was ultimately transferred to barge DB 16 in

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the Gulf of Mexico. (Doc. 23-1, Bell Dep., p. 3). The plaintiff asserts that Hall told him he was

being sent to barge DB 16 because “the other operator couldn’t run the crane” and he thought the

plaintiff could run it better. (Doc. 29-4, Bell Dep., pp. 18-19). 

The plaintiff testified that from the first day he arrived on barge DB 16, he was sexually

harassed by Michael Bergeron, a co-worker on the barge. (Doc. 29-4, Bell Dep., p. 25). The

plaintiff testified that on May 5, 2008, he told his foreman, Ray Defelice, about the harassment

and that Mr. Defelice told him to talk to Mr. Bergeron. (Id., p. 56 & 60). Also on that day, the

plaintiff testified he told a safety man and several crew members about the harassment and that

they told him to call the defendant’s Ethics Hotline. (Id., pp. 56-61). 

In the evening of May 5, 2008, the plaintiff was removed from working on the crane. 

(Doc, 29-4, Bell Dep., p. 34). The plaintiff testified that Mr. Bergeron came up to the crane and

told him that “they” wanted him on the deck, but Mr. Bergeron did not tell him specifically who

“they” were but the plaintiff “reckoned” that it was Mr. Defelice. (Doc. 29-4, Bell Dep., pp. 30-

31). Upon arriving at the deck, the plaintiff testified that he asked Mr. Defelice for instructions

and that he told him “[t]hat we were working with whatever the part of the job we were doing”

but that it was not his belief that the plaintiff had been permanently removed from operating the

crane. (Doc. 29-4, Bell Dep., p. 32). 

On the morning of May 6, 2008, the plaintiff testified that he woke up and went to a

regular safety meeting that was conducted by Mr. Defelice. Before the meeting, the plaintiff

asserts that he was again harassed by Mr. Bergeron and that, at that moment, he decided to call

the Ethics Hotline. (Doc. 29-4, Bell Dep., p. 34-35). At 10:54 a.m. CST, the plaintiff placed a

telephone call to the defendant’s Ethics Hotline in North Carolina and told the operator that Mr.

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Bergeron had been sexually harassing him. (Doc. 23-1, Bell Dep., pp. 7-9). Global Compliance,

a company which is independent from the defendant, monitors the defendant’s Ethics Hotline

calls. (Doc. 23-1, Borne Dep., p. 14). Upon receiving the plaintiff’s call, Global Compliance

generated an e-mail. The body of this email did not contain any specific details of the plaintiff’s

allegation; rather, the details were contained in a separate attachment to the email. This email

and attachment were then sent on May 6, 2008, to the defendant’s Human Resource Manager,

Linda Borne. (Doc. 23-1, Borne Dep., pp. 16-17; Doc. 23-1, Exhibit E, pp. 33-34). When the

email was sent to Ms. Borne, she was attending an offshore technology conference (“OTC”) in

Houston, Texas, and though she could read the body of the email, she did not have the ability to

open and look at the attachment. The first time she read the attachment was on May 8, 2006,

when she returned to her office in Amelia, Louisiana. (Doc. 23-1, Borne Dep., p. 17, 20-22). 

After he called the Ethics Hotline, the plaintiff attended the daily safety meeting where

he observed that Defelice and Bergeron were called to the captain’s office. (Doc. 29-4, Bell

Dep., p. 40). Once the safety meeting concluded, the plaintiff testified that Mr. Bergeron

approached him in the eating area and told him “I didn’t mean to get you fired.” (Id., p. 41-42). 

The plaintiff “just kind of blew it off” and after eating, went to the deck for work. Immediately

upon arriving on the deck. Mr. Defelice approached him and told him to “turn around and go

pack your bags, the helicopter’s coming to get you.” The plaintiff maintains that he was never

told why he was terminated. (Id., pp. 42-43). 

The plaintiff testified that he left the barge and arrived on shore late in the day on May 6,

2008. While he was driving home, the plaintiff maintains he called Mr. Hall on the phone and

“asked him if I could be transferred to another position or another barge so I wouldn’t have to

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put up – when I mentioned it to him about the harassment charge, he mentioned Michael’s name. 

I said, yes, sir, Mr. Bergeron.” (Doc. 29-4, Bell Dep., p. 44-45). The plaintiff, thereafter,

testified that Mr. Hall told him that “he’d get back with me” but the plaintiff did not hear from

Mr. Hall on that day. (Id., p. 46).

While the above events were happening, Danny J. Harris, a safety tech on barge DB 16,

at 11:38 am sent an email to Drake M. Trosclair, a human resources administrator, that stated:

Monty Bell is a SSE crane operator that has demonstrated a lack of ability to safely 

operate our 203 crane. We have taken him off the deck as he is aware that he’s departing

the barge this afternoon. Ray Defelice, his current foreman, has seen no improvement in

his ability as an operator over the past week and feels that if allowed to continue

operating; Monty could hurt someone as he moves a load... 

I am attaching the completed evaluation form for your review... let me know if this is the

proper form to accomplish termination if deemed appropriate by Willy Hall. 

(Doc. 23-1, p. 35). 

At 3:35 p.m. that same day, Mr. Trosclair sent Ms. Borne, who was Mr. Trosclair’s superior, the

following email:

Just got back to handle this one, but I always try to discuss these cases with you before

moving forward. Take a look at the documentation. I am comfortable removing this

employee from the Crane, which it has occurred. He is on his way in, but I am not sure if

I am comfortable terminating. I did speak with Willy today about both termination and

demotion to a rigger position. He would like to terminate. I told Willy to just send him

home tonight when he gets off and we can call him in the morning. I did not want to

move to [sic] fast. What are your thoughts? I am still waiting for more information from

the barge, the 48 hour checklist, etc. 

(Id.)

Mr. Hall, who is the defendant’s general superintendent, testified that he received a phone call on

May 6, 2008, that the plaintiff had been removed from operating the crane on barge DB 16, but

he did not remember who called him or the specifics of the call. (Doc. 23-1, p. 28). Also on May

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6, 2008, Bobby LeBoeuf, a British Petroleum employee who was on the barge DB 16, notified

the defendant that 

Over the past few days I have had concerns about the operation of the JRM DB 16 track

train. On several occasions I witnessed JRM riggers struggle to control loads being

lowered by the crane and themselves express concerns about the handling and operation. 

I feel that it is only a matter of time before someone becomes injured or some equipment

will be damaged due to the operator’s knowledge and experience operating the crane. I

feel a more experience[d] operator would be in the best interest of the project to ensure

safe operation. JRM has worked extensively over the years of providing all their workers

with a safe environment and I would hate for that environment to be compromised over

one workers [sic] action.

(Doc. 23-1, p. 32). 

Ms. Borne testified that the defendant received this statement prior to when the plaintiff “was

actually terminated for unsatisfactory work performance.” (Doc. 23-1, Borne Dep., p. 19). 

On May 7, 2008, Ray Trainor, who was barge foreman of barge DB 50, sent an email to

Mr. Hall which provided the following:

The time in which I evaluated Monty Bell he seemed very nervous and it very much

affected his judgement [sic] and his ability to operate the crane safely. The majority of

the crew did not want to work under the crane with him operating because he never

seemed comfortable. Obviously this is very detrimental because every time something

heavy or awkward had to be lifted then myself or Mr. Merlin had to be called to make the

lift. In short if the crew doesn’t trust him then it hobbles any crane work that has to be

completed and the other operators are not always available. Monty has also been a little

head strong when it comes to communications on the radio as well. When corrected he

seems easily irritated and that also shows up in his abilities to operate. It is my opinion

that you can never operate any equipment when you are angry because others will be hurt

or killed quickly through your own negligence. 

(Doc. 23-1, p. 36). 

Mr. Hall thereafter forwarded that email to Mr. Trosclair with the following notation: “Fyi”. 

(Id.). After receiving that email from Mr. Hall, Mr. Trosclair sent an email to Ms. Borne stating

that

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I received some documentation from Ray Trainor, Foreman and the DB50 on Monty and

he had some issues with Monty being a very headstrong individual that did not take

orders very well. I also spoke to Ray Defelice today and asked him how he felt about

Monty and if we should offer him the opportunity to work as a rigger and Ray stated the

he had some issues with him taking orders while in the crane and was a know it all and

had a rough attitude. I am leaning toward releasing this individual after speaking to Ray

and getting some feedback from Trainor. 

How do you feel if we released him? 

(Id., p. 37). 

Ms. Borne thereafter responded by email to Mr. Trosclair that “[t]hat is fine.” (Id.). 

The plaintiff was effectively terminated on May 8, 2008. (Doc. 23-1, p. 38). Mr. Hall

testified that he made the decision to terminate the plaintiff based on “the lack of job

performance” in that “he wasn’t operating the crane to the satisfaction of the superintendent,

supervisor...”. Mr. Hall also testified that he did not know about the plaintiff’s sexual

harassment complaint to the Ethics Hotline until after he had already terminated the plaintiff for

poor job performance. (Doc. 23-1, Hall Dep., pp. 30-31). The plaintiff testified that he called

Mr. Hall on or around May 8, 2008, and that Mr. Hall told him that he has been terminated but

did not give a reason why. After he found out he was terminated, the plaintiff called the Ethics

Hotline to complain that he was terminated because he had called the Ethics Hotline previously. 

(Doc. 29-4, pp. 46-51). The official clearance form, which was signed by Mr. Hall and a human

resources administrator on May 9, 2008, stated that he had an effective termination date of May

8, 2008, and that he was not eligible for rehire. The form stated the reason for the plaintiff’s

termination was that he was “unable to perform duties as crane operator.” (Doc. 23-1, p. 38). 

LEGAL ANALYSIS

I. Summary Judgment Standard

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Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted

“if the pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” The trial court’s function is not “to

weigh the evidence and determine the truth of the matter but to determine whether there is a

genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91

L.Ed.2d 202 (1986). “The mere existence of some evidence to support the non-moving party is

not sufficient for denial of summary judgment; there must be ‘sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party.’” Bailey v. Allgas, Inc., 284 F.3d

1237, 1243 (11th Cir. 2002) (quoting Anderson, 477 U.S. at 249). “If the evidence is merely

colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477

U.S. at 249-250. (internal citations omitted).

The basic issue before the court on a motion for summary judgment is “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” See Anderson, 477 U.S. at 251-252. 

The moving party bears the burden of proving that no genuine issue of material fact exists. 

O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In evaluating the argument of

the moving party, the court must view all evidence in the light most favorable to the non-moving

party, and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle

Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds could differ on the

inferences arising from undisputed facts, then a court should deny summary judgment.” Miranda

v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank

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& Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)).

Once the movant satisfies his initial burden under Rule 56(c), the non-moving party

“must make a sufficient showing to establish the existence of each essential element to that

party's case, and on which that party will bear the burden of proof at trial.” Howard v. BP Oil

Company, 32 F.3d 520, 524 (11th Cir. 1994)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986)). Otherwise stated, the non-movant must “demonstrate that there is indeed a material

issue of fact that precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604,

608 (11th Cir. 1991). The non-moving party “may not rely merely on allegations or denials in

[the non-moving party’s] pleading; rather, its response .... must – by affidavits or as otherwise

provided in this rule – set out specific facts showing a genuine issue for trial.” FED. R. CIV. P.

56(e). “A mere ‘scintilla’ of evidence supporting the [non-moving] party’s position will not

suffice; there must be enough of a showing that the jury could reasonably find for that party.” 

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). “[T]he nonmoving

party may avail itself of all facts and justifiable inferences in the record taken as a whole.” 

Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992). “Where the record taken

as a whole could not lead a rational trier of fact to find for the non-moving party, there is no

genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation and citation omitted).

II. Title VII

Title VII makes it unlawful for an employer “to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII’s

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prohibition against discrimination based on sex encompasses sexual harassment. See Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Meritor Sav. Bank,

FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Mendoza v. Borden,

Inc., 195 F.3d 1238, 1244 (11th Cir. 1999)(en banc). Generally, sexual harassment comes in two

forms: harassment that results in a tangible employment action and harassment from a hostile

work environment. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 508

(11th Cir. 2000). In his complaint, the plaintiff relies on the former. (Doc. 1, p. 5). 

A plaintiff may prove retaliation by relying on either direct, circumstantial, or statistical

evidence. See Walker v. NationsBank of Fla. N.A., 53 F.3d 1548, 1555-1556 (11th Cir. 1995);

see also Wright v. Southland Corp., 187 F.3d 1287, 1305 (11th Cir. 1999)(“the same analytical

framework applies to retaliation claims as applies to other employment discrimination claims,

including the availability of the McDonnell Douglas presumption.” (citation omitted)). Direct

evidence is that which, “if believed, proves the existence of discriminatory motive ‘without

inference or presumption.’” Hamilton v. Montgomery County Bd. of Education, 122 F.Supp.2d

1273, 1279 (M.D.Ala. 2000)(quoting Carter v. Three Springs Residential Treatment, 132 F.3d

635, 641 (11th Cir. 1998)). As the District Court for the Middle District of Alabama explained:

Not only must it be evidence of discriminatory ‘actions or statements of an

employer’ but the actions or statements at issue must ‘correlat[e] to the

discrimination or retaliation complained of by the employee.’ Further, the

statements ‘must be made by a person involved in the challenged decision’ and

must not be subject to varying reasonable interpretations. 

Id.(quoting Lane v. Ogden Entertainment, Inc., 13 F.Supp.2d 1261, 1274 (M.D.Ala.

1998)(brackets in original). 

This court finds that none of the evidence submitted by the plaintiff qualifies as direct

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evidence of retaliation or proves without inference or presumption that the persons who made the

employment decisions did so as a result of a retaliatory motive. 

The plaintiff, however, may attempt to show retaliation based on circumstantial evidence

through the application of the McDonnell Douglas burden-shifting analysis established by the

Supreme Court. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d

668 (1973). Under the McDonnell Douglas framework, a plaintiff must first raise an inference

of retaliation by establishing a prima facie case. See Chapman v. AI Transport, 229 F.3d 1012,

1024 (11th Cir. 2000). “A prima facie case of retaliation under Title VII requires the plaintiff to

show that: (1) she engaged in an activity protected under Title VII; (2) she suffered an adverse

employment action; and (3) there was a causal connection between the protected activity and the

adverse employment action.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008)(citing 

Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001)). 

Assuming for the purposes of argument that the plaintiff could establish a prima

facie case, the burden would then shift to the defendant, who must “proffer a legitimate,

nondiscriminatory reason for the adverse employment action. The employer’s burden is

exceedingly light.” Hamilton, 122 F.Supp.2d at 1280(quoting Meeks v. Computer Assoc. Int’l,

15 F.3d 1013, 1021 (11th Cir. 1994)(internal quotations omitted)). If the defendant proffers a

legitimate reason for the employment decision, the burden then shifts back to the plaintiff who

must “then ‘show that the employer’s proffered reasons for taking the adverse action were

actually a pretext for prohibited retaliatory conduct.’” McCann v. Tillman, 526 F.3d 1370, 1375

(11th Cir. 2008)(citation omitted). “At the pretext stage, in order to survive summary judgment,

Plaintiff must provide sufficient evidence to allow a reasonable fact finder to conclude, at a

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minimum, that the proffered reasons were not actually the motivation for the employer’s

decision.” Miller v. Bed, Bath & Beyond, Inc., 185 F.Supp.2d 1253, 1270 (N.D.Ala.

2002)(citing Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)). The plaintiff

may do this “(1) by showing that the employer’s legitimate nondiscriminatory reasons should not

be believed; or (2) by showing that, in light of all of the evidence, a discriminatory reason more

likely motivated the decision.” Id.(citation omitted). This is done by pointing to “‘such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy

of credence.’” McCann, 526 F.3d at 1375 (citation omitted). 

However, it should be noted that federal courts “do not sit as a super-personnel

department that reexamines an entity’s business decisions.” Chapman, 229 F.3d at 1030(quoting

Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991)). It is not appropriate for

either the plaintiff or this court to “recast an employer’s proffered non-discriminatory reasons or

substitute his business judgment for that of the employer.” Chapman, 229 F.3d at 1030. The

ultimate burden of persuasion remains with the plaintiff at all times in cases involving merely

circumstantial evidence. Tex. Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101

S.Ct. 1089, 67 L.Ed.2d 207 (1981). 

1. Prima Facie Case

In its memorandum in support of its motion for summary judgment, the defendant asserts

that it “is entitled to summary judgment because... Plaintiff cannot establish his prima facie case

as the decision maker did not even know Plaintiff had complained [of] sexual harassment before

the termination.” (Doc. 23, p. 1). To establish a prima facie case of retaliation based on

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circumstantial evidence, the plaintiff must show:

(1) []he engaged in statutorily protected expression; (2) []he suffered an adverse

employment action; and (3) the adverse action was causally related to the protected

expression.

Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002)(citations omitted). 

There is no question that the plaintiff’s call to the Ethics Hotline is a statutorily protected

expression. Furthermore, the complaint of sexual harassment to Mr. Hall during the May 6,

2008, phone conversation also constitutes a statutorily protected activity. See Pipkins v. City of

Temple Terrace, Fla., 267 F.3d 1197, 1201 (11th Cir. 2001)(“Statutorily protected expression

includes internal complaints of sexual harassment to superiors...”). In regards to the second

element, the plaintiff suffered an “adverse employment action” when he was effectively

terminated on May 8, 2008. The third element of the prima facie case of retaliation, however, is

in dispute. 

a. The scope of the plaintiff’s claims 

A preliminary disagreement has arisen as to the proper scope of the plaintiff’s claims. In

its reply, the defendant argues that the plaintiff “asserted in his Complaint (the lawsuit filed in

the captioned matter) that his call to the ethics hotline on May 6, 2008, was the protected

activity” but “mentions no other acts that constitute the protected activity.” The defendant points

out, however, that “[i]n his Opposition to the Motion for Summary Judgment, Plaintiff cites to

other parts of his deposition in which he testified that he told Mr. Hall of the alleged sexual

harassment...” Thus, the defendant maintains there is an issue of “whether Plaintiff can leave

unaddressed McDermott’s defense that the decision-maker could not have known of the ethics

hotline call and rely instead on so-called protected activity that Plaintiff did not mention in the

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 The defendant also objects the plaintiff’s reliance on the conversations he had with the

other employees on the barge on May 5, 2010. This court finds that the defendant did not

receive fair notice that these complaints could be a basis for the plaintiff’s retaliation claim since

they were not mentioned anywhere in the complaint. 

13

Complaint he filed in court.” (Doc. 30, pp. 2-3). 

Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint to contain, in part,

a “short and plain statement of the claim showing that the pleader is entitled to relief” and a

“demand for the relief sought...” Fed.R.Civ.P. 8(a). The purpose of Rule 8(a)(2) “is to give the

defendant fair notice of the claims against him without requiring the plaintiff to have every legal

theory or fact developed in detail before the complaint is filed and the parties have opportunity

for discovery.” “As a general rule, a plaintiff should not be prevented from pursuing a valid

claim just because []he did not set forth in the complaint a theory on which []he could recover,

‘provided always that a late shift in the thrust of the case will not prejudice the other party in

maintaining his defense upon the merits.’” Evans v. McDonald’s Corp., 936 F.2d 1087, 1090-

1091 (10th Cir. 1991)(citations omitted); see also Green Country Food Market, Inc. v. Bottling

Group, LLC, 371 F.3d 1275, 1279 (10th Cir. 2004). 

This court finds that the defendant had fair notice that the plaintiff’s phone call to Mr.

Hall on the May 6, 2008, could be a basis for his retaliation claim.1

 Although the details of the

phone call were not divulged in the complaint, the plaintiff clearly mentions that he had a

conversation with Mr. Hall and that in that conversation he asked to be transferred. (See Doc. 1,

p. 4)(“[u]pon reaching the shore he called Willy Hall, the man that hired him and asked to be put

on another barge. Mr. Hall told plaintiff no, that he was terminated.”). The reason for the

requested transfer was further detailed by the plaintiff in his deposition which revealed that it

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 The defendant can not claim that it was unfairly surprised by this revelation since the

deposition occurred on January 27, 2010, which was a month before the discovery deadline

(see Doc. 11), two months before the defendant filed their motion for summary judgment, and

approximately nine months before the start of the trial. 

14

was because of the alleged sexual harassment.2

 It is this court’s estimation that the defendant

simply misconstrued, to some extent, that the plaintiff’s complaint limits the plaintiff’s

retaliation claim to a specific alleged protected activity. Although the main focus of the

complaint centers around the plaintiff’s call to the Ethics Hotline, the plaintiff does mention the

phone conversation with Mr. Hall in his complaint, and the prayer for relief broadly states that

“[t]he defendant unlawfully discriminated against the plaintiff in retaliation for his opposition to

the defendant’s unlawful employment practices, including his complaints of behavior which

violated laws against sexual harassment, as set out above.” (Doc. 1, pp. 4-5). In sum, this court

finds that the plaintiff properly pled as the basis for his retaliation claim both his complaint to the

Ethics Hotline and his phone call to Mr. Hall. 

b. Causal Connection

In its memorandum in support of his motion for summary judgment, the defendant

contends that there was no causal connection between plaintiff’s call to the Ethics Hotline and

the plaintiff’s discharge. (Doc. 23, p. 9). The Eleventh Circuit holds that “[t]o meet the causal

link requirement, the plaintiff merely has to prove that the protected activity and the negative

employment action are not completely unrelated.” Holifield v. Reno, 115 F.3d 1555, 1566 (11th

Cir. 1997)(internal quotation marks and citation omitted); see also Laosebikan v. Coca-Cola Co.,

167 Fed. Appx. 758, 764 (11th Cir. 2006)(“To establish the causal link requirement, the plaintiff

merely has to prove that the protected activity and the negative employment action are not

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completely unrelated.”). In general, “‘[a] plaintiff satisfies this element if []he provides

sufficient evidence’ of knowledge of the protected expression and ‘that there was a close

temporal proximity between this awareness and the adverse... action.’” Higdon v. Jackson, 393

F.3d 1211, 1220 (11th Cir. 2004)(citation omitted). 

On May 6, 2008, the plaintiff made a complaint of sexual harassment to the company’s

Ethics Hotline and called Mr. Hall asking for a transfer because of the alleged sexual harassment

by a co-employee. Two days later, the plaintiff was effectively terminated. This court finds that

the plaintiff has shown a sufficiently close temporal relationship between his protected activities

and his discharge that a reasonable jury could conclude that the protected activity and the

negative employment action are not completely unrelated. Compare Maniccia v. Brown, 171

F.3d 1364, 1370 (11th Cir. 1999)(citation omitted)(9-month gap between protected activity and

adverse employment action precluded reasonable inference of causation) with Donnellon v.

Fruehauf Corp., 794 F.2d 598, 601 (11th Cir. 1986)(that plaintiff was discharged only one month

after filing complaint with EEOC “belies any assertion by the defendant that the plaintiff failed

to prove causation”). 

However, in Brungart v. BellSouth Telecomms., Inc., the Court of Appeals for the

Eleventh Circuit explained that although “[t]he general rule is that close temporal proximity

between the employee’s protected conduct and the adverse employment action is sufficient

circumstantial evidence to create a genuine issue of material fact of a causal connection”, “there

is this exception” when “there is unrebutted evidence that the decision maker did not have

knowledge that the employee engaged in protected conduct.” 231 F.3d 791, 799 (11th Cir.

2000). The undisputed evidence shows that Mr. Hall did not become aware of the plaintiff’s call

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to the Ethics Hotline until after he was terminated. However, this court finds that the plaintiff’s

complaint to Mr. Hall himself on May 6, 2008, is a disputed issue of fact. As stated above, the

plaintiff testified that he left the barge and arrived on shore late in the day on May 6, 2008. 

While he was driving home, the plaintiff testified that he called Mr. Hall on the phone and

“asked him if I could be transferred to another position or another barge so I wouldn’t have to

put up – when I mentioned it to him about the harassment charge, he mentioned Michael’s name. 

I said, yes, sir, Mr. Bergeron.” (Doc. 29-4, Bell Dep., p. 44-45). The plaintiff thereafter asserted

that Mr. Hall told him that “he’d get back with me” but the plaintiff did not hear from Mr. Hall

on that day. (Id., p. 46). Mr. Hall did not deny that this conversation existed but instead testified

that he did not “remember that” conversation. (Doc. 29-3, Hall Dep., pp. 21-22). Viewing the

facts in a light most favorable to the non-movant, this court finds that a reasonable jury could

conclude that the plaintiff satisfied the third element. 

2. The defendant’s legitimate non-discriminatory reason

Having found that a reasonable jury could conclude that the plaintiff has satisfied all the

elements for a prima facie case of discrimination, the burden shifts to the defendant to proffer

legitimate, nondiscriminatory reasons for its decision to terminate the plaintiff’s employment. 

Burdine, 450 U.S. at 254(holding that the presumption that intentional discrimination occurred

raised by the plaintiff’s prima facie case may be rebutted by the employer’s articulation of a

legitimate, nondiscriminatory reason for its adverse employment action). The defendant asserts

that the reason the plaintiff was discharged was because of his poor job performance. (Doc. 23,

p. 14; see Doc. 23-1. p. 38(the official clearance form stated that the termination reason was

“unable to perform duties as crane operator.”)). This reason was not contradicted by any other

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evidence. Therefore, the court finds that the defendant provided legitimate, nonretalitory reasons

for the plaintiff’s discharge. 

3. Pretext

Since the defendant has satisfied its burden, the plaintiff now bears the burden of offering

enough probative evidence so that a reasonable jury might conclude that defendant’s reasons for

termination were a pretext for the discrimination or retaliation. See Pennington v. City of

Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001); Bogle v. Orange County Bd. of County

Commissioners, 162 F.3d 653, 658 (11th Cir. 1998). In the summary judgment context, a court

must conduct this inquiry by determining whether a jury “could reasonably infer discrimination

if the facts presented [by the plaintiff] remained unrebutted.” Jameson v. Arrow Co., 75 F.3d

1528, 1531 (11th Cir. 1996). 

The plaintiff first attempts to show pretext by disputing “that he was poor performer” and

argues that when he previously worked for the defendant, his performance was satisfactory and

also that he was transferred from barge DB 50 to barge DB 16 because “Hall told him... [that] the

other operator couldn’t run the crane and he thought Bell could run it better.” (Doc. 28, pp. 13-

14). The only evidence the plaintiff provides for this proposition, however, is his own opinion,

and the plaintiff’s own evaluation and opinion are not a sufficient basis to establish pretext. See

Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1332-1333 (11th Cir. 1998); Holifield v. Reno,

115 F.3d 1555, 1565 (11th Cir. 1997). 

Second, the plaintiff tries to demonstrate pretext by maintaining that the defendant “did

not follow its policy regarding termination for poor performance” in that no verbal or written

warnings were ever given to the plaintiff for his poor performance. (Doc. 28, pp. 14-15). This

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 In fact, when asked why the plaintiff may not have received written or verbal warnings

before he was terminated, Ms. Borne testified that during her investigation, she determined that

there was “cause” to terminate the plaintiff without needing to give written and verbal warnings

based on the “additional documentation from Ray Trainer and then from the BP HSE Rep.” 

(Doc. 29-5, Borne Dep., pp. 36-38). The plaintiff provided no evidence convincing this court

that Ms. Borne’s explanation should not be believed. 

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court, however, does not find this argument persuasive. The defendant had a disciplinary policy

that lists thirty-two separate disciplinary offenses and provides the penalties for those offenses. 

(See Doc. 29-1). While some of the offenses require verbal and written warnings, like a

“violation of safety rules,” there are some offenses that warrant immediate termination, like

“violation of safety rule which affect the safety of other personnel.” (Id., p. 4). Poor

performance is not specifically listed as one of the thirty-two disciplinary offenses. Second,

even if poor performance were listed, the policy is not binding on the defendant. The policy

provides the following “note”:

This list does not address every possible situation that requires corrective action, but

rather the most common situations which could occur. In an effort to be consistent in the

administration of our progress discipline, the below grid indicates recommended actions

for the situations stated. However, management discretion can be used when

circumstances may warrant either less or more severe corrective action be taken. 

(Id., p. 2). 

Contrary to the plaintiff’s arguments otherwise, this court finds nothing in the policy that

requires the defendant to provide any warning to the plaintiff prior to terminating him for poor

performance.3

Third, the plaintiff asserts that there is pretext by arguing that the defendant “has not been

consistent in it’s [sic] reason for termination.” This court again is not persuaded by the

plaintiff’s argument. As stated above, the official clearance form, which was signed by Mr. Hall

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and a human resources administrator stated the reason for the plaintiff’s termination was that he

was “unable to perform duties as crane operator.” (Doc. 23-1, p. 38). The plaintiff points to the

defendant’s answer to an interrogatory question which asked in part for the reason for the

termination to which the defendant answered “Plaintiff was relieved from his assignment as

crane operator because he was not operating the crane properly and/or safely. Plaintiff was next

assigned the job of RIGGER, but he failed to report for duty. He was then discharged.” This

answer is not entirely inconsistent with the defendant’s proffered reason since it states that the

plaintiff failed to perform his duties as a crane operator. However, to the extent this answer

mentions he was assigned to a different job and failed to report for duty, this court finds this

“inconsistency” in the employer’s proffered reason does not rise to the level that a reasonable

factfinder could find the defendant’s proferred reason unworthy of credence. 

After a thorough review of the record, this court concludes that the defendant’s motion

for summary judgment is due to be granted. Although the plaintiff satisfied the elements of a

retaliation claim, the defendant presented nondiscriminatory reasons for its actions. The meager

evidence, or lack thereof, produced by the plaintiff in response would not permit a reasonable

jury to “legitimately draw the inference” that the defendant’s proffered nondiscriminatory

reasons for its employment decisions were pretextual and that the real reasons behind their

actions were retaliatory. No reasonable juror could have found that the defendant retaliated

against the plaintiff because he called the Ethics Hotline or Mr. Hall. 

CONCLUSION

After due consideration of all matters presented and for the reasons set forth herein, it is

ORDERED that the defendant’s motion for summary judgment (Doc. 22) is GRANTED. 

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DONE and ORDERED this 2nd day of June, 2010.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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