Opinion
5-20-CV-00559-FB-RBF
05-19-2023
JEFFREY RENFROE, Plaintiff, v. CGT U.S. LIMITED, Defendant.
Honorable United States District Judge Fred Biery:
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation concerns Defendant's Motion for Summary Judgment. See Dkt. No. 30. All pretrial matters in this action have been referred for resolution pursuant to Rules CV-72 and 1 of Appendix C to the Local Rules for the United States District Court for the Western District of Texas. See Dkt. No. 42. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the Motion for Summary Judgment, Dkt. No. 30, should be GRANTED.
Factual and Procedural Background
Defendant CGT U.S. Limited is a manufacturer of coated fabrics for car interiors. It has a plant in New Braunfels, Texas. In October of 2017, CGT hired Plaintiff Jeffrey Renfroe as a process engineer, a position requiring a bachelor's degree in engineering. Renfroe was one of a handful of African American employees at CGT. Renfroe oversaw the operations of several inspection tables on the production line, as well as the Trexal and re-reel machines. Renfroe's duties as a process engineer primarily involved monitoring his assigned areas and adjusting the machine settings and processes to optimize efficiency. Several teams of production operators- unskilled, hourly laborers-physically ran the machinery and inspection tables. Renfroe also had a cubicle office where he performed other engineering tasks, such as writing guidelines and instructions for the production operators to follow. CGT generally treated process engineers as employees who are exempt under the Fair Labor Standards Act (“FLSA”). Renfroe received an annual salary, he was not required to track his work hours, and he received annual performance reviews. Despite repeated admonitions that process engineers should not be directly operating the machinery, Renfroe would occasionally be asked to assist.
The Court draws the factual background from the parties' summary-judgment exhibits, as well as the appendix attached to CGT's motion. See Dkt. No. 30-1. Renfroe's recitation of the facts, in contrast, contains several legal arguments and largely regurgitates cursory allegations from his complaint without accurate citation to deposition testimony or evidence in the record. See Dkt. No. 40 at 2-9. Because nothing in Renfroe's response contradicts CGT's description of events, the Court accepts those facts as uncontroverted.
On July 7, 2018, Renfroe's manager, Juan Elias, confronted him about deficiencies in his job performance. Around that same time, Renfroe complained to Elias about a June 27, 2018, verbal altercation with a production operator, Kaitlyn Stillwell, who allegedly told him she would “beat the black off you.” Elias informed the HR manager, Leslie Johnson, who initiated an investigation. On July 11, 2018, Johnson informed management that she had substantiated Renfroe's complaint, and she recommended that Stillwell be terminated as a result. Johnson also recommended extending Renfroe's vacation and accelerating harassment training.
In April of 2019, Renfroe again complained internally about production operators using racial slurs in his presence. Management took Renfroe's allegations seriously, even though he provided no names, and HR manager Johnson circulated an email reiterating that the use of racial slurs at CGT would not be tolerated. CGT also mandated anti-harassment training in response.
Renfroe later reported to Elias that unnamed employees continued to mouth racial slurs at him. But Renfroe never followed up with these allegations or asked for HR to become involved.
Renfroe filed a charge with the Equal Employment Opportunity Commission (“EEOC”) on May 10, 2019, complaining about a lack of overtime pay. Renfroe received his right-to-sue letter and, while still employed at CGT, Renfroe initiated this lawsuit on May 6, 2020, asserting unpaid overtime under the FLSA. Renfroe amended his lawsuit on June 11, 2020, to include claims of race discrimination and retaliation under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Renfroe stated a subjective belief that his workload increased 45% but alleged no connection to the filing of his initial EEOC charge.
Renfroe's performance reviews while at CGT declined each year. Renfroe's evaluations went from “Fully Meets” CGT's expectations in 2018 to just “Meets” in 2019. Renfroe's 2020 performance review then slipped to “Needs Improvement.” Elias recommended that Renfroe be terminated due to inadequate job performance in January of 2021. Johnson agreed and forwarded that recommendation to management. Renfroe was formally terminated on January 28, 2021. Renfroe timely filed an EEOC charge and amended his complaint to add wrongful termination.
Standard of Review
On a motion for summary judgment, the moving party bears the initial burden of showing both the lack of any genuine dispute of material fact and that it “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Davis v. Fort Bend Cnty., 765 F.3d 480, 484 (5th Cir. 2014). Where the moving party bears the ultimate burden of proof at trial, such as a defendant seeking summary judgment on an affirmative defense, then “he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). But where the moving party does not bear the burden of proof, summary judgment may be obtained “simply by disproving the existence of any essential element of the opposing party's claim.” Id. Once the moving party has met this initial burden, then the burden shifts to the non-moving party to come forth with “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). While courts resolve any factual disputes in favor of the non-moving party, the party opposing summary judgment must come forth with more than “conclusory allegations,” as “only a ‘scintilla' of evidence” will not suffice. Little, 37 F.3d at 1075.
Analysis
A. CGT Has Established that Renfroe's Position Was Exempt from the FLSA.
CGT argues that Renfroe, who worked as a process engineer, qualified for an overtime exemption under the FLSA as a learned professional. The FLSA mandates overtime rates for employees who work over 40 hours per week. See 29 U.S.C. § 207(a). But the statute also provides many overtime exemptions, including those employed in a “professional capacity.” Id. § 213(a)(1). The Department of Labor has promulgated regulations for determining whether an employee is exempt as a learned professional through a general two-part test: (1) a salary or feebasis rate of $684 per week, and (2) the position's “primary duty” is the performance of exempt work. 29 C.F.R. § 541.300(a). The test to determine “primary duty” for learned professionals then consists of three elements: (1) “advanced knowledge,” (2) “in a field of science or learning,” and (3) “customarily acquired by a prolonged course of specialized intellectual instruction.” Id. § 541.301(a). The first element distinguishes between “intellectual” work that requires the “exercise of discretion and judgment” from routine tasks or manual labor. Id. § 541.301(b). The second element explicitly mentions such “traditional professions” as “engineering.” Id. § 541.301(c). The third element is then met where an employee possesses, and is required to possess, an “academic degree.” Id. § 541.301(d).
For the purposes of this exemption, “primary duty” refers to “the principal, main, major or most important duty that the employee performs.” Id. § 541.700(a). But there is no requirement that an employee must only perform exempt work to meet this exemption-courts weigh a variety of factors, including the amount of time spent on exempt work, but also “relative freedom from direct supervision” and the “relative importance of the exempt duties.” Id. “Thus, employees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement.” Id. § 541.700(b). But even those who do not meet the general 50% cutoff may still qualify for the exemption. See id. § 541.700(c).
Courts are instructed to give FLSA exemptions a “fair reading”-exemptions are not to be “construed narrowly.” Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134, 1142 (2018). But the FLSA exemptions are treated as an “affirmative defense on which the employer has the burden of proof.” Corning Glass Works v. Brennan, 417 U.S. 188, 197 (1974). While estimates of the amount of time spent on non-exempt work are relevant to the “primary duty” inquiry, “unsubstantiated, self-serving assertions will not preclude an adequately supported motion for summary judgment from being granted.” Mosquera v. MTI Retreading Co., 745 Fed. App'x 568, 573 (6th Cir. 2018) (citing Smith v. Sw. Bell Tel. Co., 456 Fed.Appx. 489, 492 (5th Cir. 2012)).
CGT attaches several job descriptions, the offer letter, and Renfroe's own deposition testimony as evidence in support of summary judgment. The attached job description states that an engineering degree is required for the process-engineer position, and it lists several major job duties, such as developing guidelines, designing equipment, and conducting research on engineering processes. See Dkt. No. 30-3. The offer letter lists $67,000 as the annual salary and explicitly states that the process engineer position is “exempt” and Renfroe would “not be eligible for overtime premium pay.” Dkt. No. 30-16 at 3. Renfroe agreed in his deposition that he routinely performed the engineering duties listed in that job description while at CGT. See Dkt. No. 30-8 at 74:10-77:24. Renfroe stated that he performed what he considered to be “engineering work” approximately 50% of an average workday, with another 40% assisting with inspection and Trexal processes, and 10% helping the re-reelers. Id. at 174:6-14. Renfroe asserted that the 10% of his average workday spent on the re-reeler “had nothing to do with . . . engineering.” Id. at 176:24-25. But Renfroe agreed that even the time he spent overseeing the inspection and Trexal processes required him to use his engineering skills. See id. at 85:21-25.
By virtue of these concessions-that Renfroe spent well over 50% of his time performing core engineering tasks that made use of his engineering degree-CGT has met its burden to establish that the performance of exempt work was Renfroe's “primary duty.” See 29 C.F.R. § 541.700(b) (setting 50% general threshold). And even without those concessions, CGT still would meet its burden. Renfroe's $67,000 annual salary exceeds the $684-per-week threshold. 29 C.F.R. § 541.300(a)(1). The job description explicitly required Renfroe to possess a bachelor's degree in engineering. See Dkt. No. 30-3; 29 C.F.R. § 541.301(c). And it is undisputed that the listed major duties all involve the “exercise of discretion and judgment.” 29 C.F.R. § 541.301(b). Renfroe was relatively free from direct supervision; he was not required to punch in or fill out timesheets, and his job performance was only reviewed annually. See Dkt. No. 40-1 at 26:18-27:13, 35:14-37:10; Dkt. No. 40-2 at 38:18-40:4; Dkt. No. 30-10 (performance reviews). Nothing in the parties' exhibits indicates that Renfroe was a manual laborer as opposed to an exempt engineer who only occasionally assisted with tasks involving manual labor. This is not to say that well-compensated engineers are always FLSA exempt. See Hewitt v. Helix Energy Sols. Group, Inc., 15 F.4th 289, 293-94 (5th Cir. 2021) (explaining why high daily compensation does not satisfy the salary basis requirement), cert. granted, 142 S.Ct. 2674 (2022) and aff'd, 143 S.Ct. 677 (2023). But Renfroe undisputedly was salaried and undisputedly was required to have an engineering degree and undisputedly routinely performed exempt engineering work. The fact that Renfroe was asked to occasionally assist with non-engineering tasks, see, e.g., Dkt. No. 30-8 at 127:7-132:25 (describing the occasional “hot order” and having to fill in for operators on lunch breaks), cannot overcome the voluminous evidence that Renfroe was a salaried engineer performing exempt work as his primary duty.
Renfroe's counterarguments are wholly unpersuasive. Attempting to undercut his own testimony, Renfroe points to the deposition testimony of another process engineer, Dakota Pebworth, stating that he did not rely on his engineering degree when running certain machines at CGT. See Dkt. No. 40-6 at 18:12-16. But in so doing, Renfroe ignores Pebworth's other testimony that he only observed Renfroe operating equipment or doing manual labor at most “once or twice.” Id. at 22:4-6. Moreover, there is no dispute that process engineers, like Renfroe and Pebworth, occasionally performed non-exempt work or took hands-on approaches to gaining familiarity with equipment. Pebworth's testimony is therefore irrelevant to the issue at hand.
Renfroe next argues that CGT's Rule 30(b)(6) corporate representative was unable to testify about Renfroe's day-to-day duties, and therefore CGT cannot meet its burden. But the deposition statement cited, viewed in context, does not actually support this view. Leslie Johnson, speaking as CGT's corporate representative, explained that because CGT does not require its exempt employees to keep track of their hours, she “would not pretend” that “CGT knows the day-to-day, minute-by-minute, second-by-second activities of every employee.” Dkt. No. 40-1 at 43:17-21. But Johnson attempted to make that distinction because she was also identified as a fact witness, and she did have personal knowledge of Renfroe's daily activities:
So from a personal observation, I get to the office. I'm usually one of the first ones there. Usually I'm one of the ones turning the lights on. I'm there between 7:00 and 7:30 most mornings. I do a walk-through and say good morning around 8:15 every morning to staff in the building. [Renfroe] was generally there around 8:00 o'clock in the morning. I'm also one of the last people out of the building. I stay to make sure I see my second shift team, send off some of the team members, and he was generally gone by 5:00 o'clock. He was pretty routine there, generally took lunch middle of the day. He liked Panera Bread. He would usually come back in with a Panera cup. So I can say that on a general basis that's what I observed, but I couldn't tell you much more than that.Dkt. No. 40-2 at 17:9-23. In any event, CGT meets its burden with Renfroe's own recounting of his work duties, wherein he concedes that at least 50% of his time was spent on exempt engineering work. Summary judgment is proper on the FLSA claim.
B. Renfroe's Retaliation Claims Are Unsupported by the Record.
CGT next seeks summary judgment on Renfroe's claims of retaliation, which he asserts under the FLSA, Title VII, and § 1981. To establish a prima facie case of retaliation through circumstantial evidence, Renfroe must show: (1) “a protected activity,” (2) “an adverse employment action,” and (3) “a causal link” between the two. Septimus v. Univ. of Houston, 399 F.3d 601, 610 (5th Cir. 2005); see also Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004) (noting that the same framework is used for Title VII and § 1981 claims); Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 625 (5th Cir. 2008) (affirming decision applying Title VII framework to FLSA retaliation claim). Although “causal link” is related to the ultimate issue of “causation,” courts employ a more lenient standard at the prima facie stage. See, e.g., Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996) (noting that employee need not prove retaliation was “sole motivating factor” at this stage). Courts consider three factors relevant to causation: “(1) the employee's past disciplinary record; (2) whether the employer followed its typical policies and procedures in dismissing the employee; and (3) the temporal relationship between the protected action and the termination.” Alvarado v. Shipley Donut Flour & Supply Co., Inc., 526 F.Supp.2d 746, 763 (S.D. Tex. 2007) (citing Nowlin v. Resolution Trust Corp., 33 F.3d 498, 508 (5th Cir. 1994)). The Fifth Circuit has reasoned “that two and one-half months between the protected activity and the adverse employment decision, standing alone, is not within the ‘very close' proximity that is necessary to establish causation.” Besser v. Tex. Gen. Land Office, 834 Fed. App'x 876, 885 (5th Cir. 2020) (per curiam).
Once the employee establishes a prima facie case, the burden shifts to the employer “to state a legitimate non-retaliatory reason for its action.” Septimus, 399 F.3d at 610. “[E]ven an incorrect belief that an employee's performance is inadequate constitutes a legitimate, non-discriminatory reason.” Little v. Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991). The burden then shifts back to the employee to show that the employer's “stated reason is actually a pretext for retaliation.” Id. at 610-11. This can be accomplished “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). The relevant standard for causation in retaliation claims is “but-for causation.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). To survive summary judgment, the employee's “evidence of pretext must show ‘a conflict in substantial evidence' on the question of [but-for causation].” Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 581 (5th Cir. 2020), as revised (Aug. 14, 2020) (quotation omitted).
Even assuming Renfroe has established a prima facia case of retaliation, CGT's offered rationale is sufficient. The deposition testimony of Juan Elias revealed that he was the one who recommended Renfroe be terminated “[b]ased on his job performance.” Dkt. No. 40-3 at 9:1014. Elias could not recall the exact date when he first recommended termination, as Renfroe “had performance issues as early as 2017.” Id. at 11:24-25. Elias apparently had several conversations with Renfroe regarding his unsatisfactory job performance, although Renfroe was never formally reprimanded. See id. at 26:9-27:4; Dkt. No. 30-27 (performance notes dated July 7, 2018). And while Elias did learn of Renfroe's EEOC charge before termination, Elias testified that he first recommended termination prior to learning of any lawsuits or complaints. See Dkt. No. 40-3 at 10:3-12:25. Renfroe's 2020 performance review by Elias shows low marks across all areas. See Dkt. No. 30-10 at 42-57. Elias's overall comments indicated that Renfroe “lacks some of the technical qualifications that are required of a person in his role,” his work contains “many errors,” and he “does little or anything to improve” in response to feedback. Id. at 57. Renfroe's 2018 and 2019 reviews show a steady decline. See id. at 2-41. Corporate emails from 2021 discussing termination indicate that these issues were not new, and Renfroe's “performance has not improved.” Dkt. No. 30-15 at 2. CGT has therefore established a non-retaliatory reason for Renfroe's termination, and the burden shifts to Renfroe to identify some evidence of pretext.
CGT also seeks summary judgment on the grounds that Renfroe cannot establish a prima facie case of retaliation. The Court agrees with CGT's arguments, which are unopposed in Renfroe's response. See Dkt. No. 41 at 10. Indeed, Renfroe has offered no evidence or explanation to support the “belie[f] that his workload has increased by an estimated 45%” or that CGT “set him up to fail.” Dkt. No. 20 ¶ 24. Assuming a valid claim ever existed for retaliation by increased workload, Renfroe has abandoned it. And the temporal proximity of seven months between his protected activity and termination is too distant to establish a causal link. See Besser, 834 Fed. App'x at 885. Nonetheless, because it is undisputed that Renfroe was terminated and did engage in some protected activities, the Court proceeds to evaluate Renfroe's arguments on pretext.
Rather than identify any competent evidence on pretext, Renfroe again complains about the deposition of CGT's Rule 30(b)(6) corporate representative, Leslie Johnson. See Dkt. No. 40 at 19-22. Renfroe implies that he was unable to uncover any pretext due to Johnson's inability to answer certain questions. But Renfroe never objected or filed any discovery motion indicating that her deposition was unsatisfactory. Discovery is now closed, and Renfroe does not request additional time to re-depose Johnson or any other witness under Rule 56(d). Renfroe's belated discovery grievances-tantamount to admitting he has no evidence of pretext-cannot create “a conflict in substantial evidence” whether Renfroe was fired due to his job performance. Renfroe's need to present evidence to support pretext is not a new issue. The proper remedy for a non-moving party's failure to identify specific evidence in support of remaining fact disputes for trial is to grant summary judgment. And that is what the Court recommends.
Notwithstanding this lack of evidence, Renfroe persists in pressing several unpersuasive arguments. Renfroe contends that CGT should have followed its “progressive discipline policy” rather than terminating his employment. See Dkt. No. 40 at 22-23. But this argument is a nonstarter. Rather than cite CGT's employee handbook, Renfroe only quotes Johnson's testimony wherein she states that the policy was optional, not mandatory, and generally not applied to exempt employees. See Dkt. No. 40-1 at 33:7-8, 34:22-24. And because CGT's stated rationale for termination was job performance, Renfroe complains that CGT's reviews were “subjective.” But Renfroe adduces no evidence that his performance reviews were fraudulent or pretextual. Indeed, as described above, Renfroe's declining job performance is well-documented and fully supports CGT's justification. See Dkt. Nos. 30-10, 30-27.
Renfroe also makes much of Johnson's email recommending termination. Renfroe argues that Johnson “asked Elias to add comments to Renfroe's performance review to support the termination.” Dkt. No. 40 at 23. But the actual text of the email undermines any alleged pretext: “I met with [Elias] today. I have requested that he add comments to his teams reviews supporting his ratings and he has committed to completing this task by end of day. It is evident that [Renfroe]'s performance has not improved.” Dkt. No. 30-15 at 2 (emphasis added). In other words, Elias had already rated Renfroe as needing improvement at that point. And nowhere is it suggested that only Renfroe's evaluation was lacking justification-Johnson asked Elias to add comments to all pending reviews. More importantly, the email's sole focus is on Renfroe's poor job performance-nowhere is there any mention or allusion to Renfroe's protected activity. Renfroe's reliance on this email chain is wholly misplaced.
Renfroe's alleged circumstantial evidence of pretext likewise falls short. Renfroe relies heavily on temporal proximity, but as CGT correctly points out, the seven months separating Renfroe's termination on January 28, 2021, from amendments to his FLSA lawsuit on June 11, 2020, render the events too distant. See Besser, 834 Fed. App'x at 885. And Johnson and Elias's mere awareness that Renfroe filed an EEOC charge, without more, cannot establish a causal link, much less but-for causation. Knights v. Bank United of Tex. Fed. Sav. Bank, 192 F.3d 127 (5th Cir. 1999). Renfroe then argues that CGT did not follow up on his racial-harassment claims. But other than the Stillwell incident, Renfroe never identified anyone who had allegedly harassed him. See Dkt. No. 30-8 at 227:13-234:25. None of the circumstantial evidence Renfroe cites creates “a conflict in substantial evidence” on the ultimate issue of but-for causation.
The only other evidence Renfroe points to is Johnson's deposition answer to the question concerning whether Renfroe's lawsuit “factor[ed] into” the termination decision, to which she replied: “I don't feel that it really did. We wanted to give him every opportunity to improve. I think the timing of those lawsuits was significantly spaced out from actually when he was terminated.” Dkt. No. 40-2 at 9:2-5. Renfroe argues that what Johnson meant by “really” is a jury question. See Dkt. No. 40 at 7. But this “argument” is only cursorily raised in the facts section of Renfroe's response brief and is unsupported by any legal analysis. Moreover, whether Renfroe's lawsuit was a “factor” in his termination is irrelevant. Unlike claims for discrimination, which require only a showing that a protected status was a “motivating factor,” whether an employee was retaliated against requires “but-for causation.” Nassar, 570 U.S. at 360. Even assuming Renfroe's prior protected activities somehow “factored into” CGT's decision, that is insufficient to establish “but-for causation,” i.e., that Renfroe was terminated because of his EEOC charge. Instead, Johnson's response confirms that Renfroe's job performance was the main concern, as CGT had attempted to give Renfroe “every opportunity to improve.” Even when viewed in the aggregate, Renfroe's evidence on pretext is almost nonexistent, and summary judgment should be granted on his FLSA, Title VII, and § 1981 retaliation claims.
C. Summary Judgment Is Proper on All Remaining Claims.
CGT additionally moves for summary judgment on Renfroe's Title VII and § 1981 claims for discrimination based on race and national origin. Renfroe's response never addressed those issues. CGT in reply thus argues that Renfroe has waived the claims. See Dkt. No. 41 at 34. The Court agrees with CGT that Renfroe's conduct is consistent with waiver. Nonetheless, summary judgment is also warranted on the merits, as explained in CGT's motion.
CGT points out several other shortcomings in Renfroe's response, including that it exceeds the page limits without leave and routinely lacks specific citations to the record. See Dkt. No. 41 at 1-3. The Court agrees that Renfroe's response falls short of the standards required of litigants in federal court. Nonetheless, the Court sees no reason to strike Renfroe's response from the record. As stated above, the appropriate relief here is to simply grant summary judgment.
First, to the extent Renfroe alleges discrimination based on national origin, such claims are barred for failure to exhaust. The filing of an EEOC charge “is a precondition to filing suit in district court.” Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) (quotation omitted). The scope of an employment-discrimination lawsuit is thus limited to allegations that are “like or related to allegations contained in the EEOC charge.” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008) (cleaned up). Thus, where an employee only indicates racial discrimination on the EEOC charge, later claims founded on national origin may be dismissed. See, e.g., Horne v. Tex. Dep't of Transp., No. 4:19-CV-405-KPJ, 2020 WL 3498009, at *3-4 (E.D. Tex. June 29, 2020) (dismissing claims based on “Hispanic origin” as unexhausted and not related to discrimination based on “Native American race” in EEOC charge). Renfroe's EEOC charge only alleges discrimination based on race and retaliation. Dkt. No. 30-6. Nothing in the EEOC charge's allegations suggest discrimination based on non-Hispanic ethnicity. And yet Renfroe's Second Amended Complaint references discrimination because of “national origin,” Dkt. No. 20 ¶ 4, and he alleges that “other workers in his position who are hispanic [sic] have not had their workloads increased.” Id. ¶ 24. As noted above, Renfroe has offered zero evidence in support of any increased workload. Regardless, because Renfroe also failed to exhaust his administrative remedies for discrimination based on national origin, such claims are barred.
Second, Renfroe fails to state a claim for racial discrimination based on hostile work environment. “To survive summary judgment on a hostile work environment claim, a plaintiff must show that (1) he is a member of a protected class; (2) he suffered unwelcomed harassment; (3) the harassment was based on his membership in a protected class; (4) the harassment ‘affected a term, condition, or privilege of employment'; and (5) ‘the employer knew or should have known' about the harassment and ‘failed to take prompt remedial action.'” Wantou v. WalMart Stores Tex., L.L.C., 23 F.4th 422, 433 (5th Cir. 2022). CGT argues that, even assuming the other elements are met, Renfroe cannot establish a prima facie case of discrimination because CGT took prompt remedial action. See Dkt. No. 30 at 9-11. Renfroe's EEOC charge concedes that CGT terminated Katy Stillwell for her racist comments. Dkt. No. 30-6; see also Dkt. No. 3011 (HR emails responding to Stillwell incident). Renfroe also acknowledged in his deposition that upon reporting the use of racial slurs by other operators, HR sent out an email stating that such activities would be grounds for discipline and mandated harassment training. See Dkt. No. 30-8 at 227:13-237:23; Dkt. No. 30-24 (HR email dated April 13, 2019). Renfroe testified that he did not hear any racial slurs after that, although he later reported to his supervisor that unnamed operators had been mouthing racial slurs:
Q. Okay. So you reported it to him. What was his response or reaction?
A. If it happens again, you know, or if you feel uncomfortable . . ., just come and get me and we'll address it.
Q. Okay. And did you ever go back to him to tell him you feel uncomfortable so he could address it?
A. No.
Q. Did you go and talk to anybody in HR about anybody lip-syncing the word, the N word?
A. I don't remember if I went to HR and told them. I don't recall.
Q. Did you go to Mr. Powell?
A. I don't think so, no.Dkt. No. 30-8 at 238:24-239:12. In other words, Renfroe's own testimony confirms that CGT took prompt remedial action to address the alleged workplace harassment. And because Renfroe identifies no evidence in support of any additional harassment, summary judgment is proper.
Finally, Renfroe's claim for wrongful termination based on race fails for the same reason as his retaliation claim. One element of a prima facie case for racial discrimination is that the employee “was replaced by someone outside his protected group or was treated less favorably than other similarly situated employees outside the protected group.” Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 339 (5th Cir. 2021) (quotation omitted). “An employee has not been replaced when his former duties are distributed among other co-workers.” Id. (quotation omitted). And an employee's failure to identify a replacement or “similarly situated comparator” renders summary judgment proper. Id. at 339-40. CGT thus argues that Renfroe cannot establish a prima facie case because he does not identify his replacement or any comparator. See Dkt. No. 30 at 7-9. Renfroe offers no argument in response. Ruben Lujan testified that Nelson Rodriguez essentially replaced Renfroe as a process engineer, but Rodriguez was apparently hired before Renfroe's termination. See Dkt. No. 40-5 at 32:23-34:8; Dkt. No. 30-21 at 188-202 (Rodriguez's 2020 performance review). Other than the fact that Rodriguez went to school in Puerto Rico, there is no information about Rodriguez's background in the record. Moreover, the Second Amended Complaint does not even allege that Renfroe was terminated “because of” his race. Renfroe's own deposition testimony effectively disclaims any allegation that his termination was based on racial animus. See Dkt. No. 30-8 at 240:9-244:21; Dkt. No. 40-7 at 248:15-253:24 (alleging discrimination due to management all being friends). Accordingly, Renfroe's race-discrimination claims under Title VII and § 1981, to the extent he ever asserted any, must be dismissed.
CGT also argues that Renfroe cannot show pretext here either. As noted above, CGT has already offered a non-discriminatory reason for Renfroe's termination, and because he identifies no evidence of pretext in response, summary judgment is appropriate on that basis as well.
Conclusion and Recommendation
For the reasons discussed above, it is recommended that the Motion for Summary Judgment, Dkt. No. 30, be GRANTED in all respects.
Having considered and acted upon all matters for which this case was referred, it is ORDERED that this case is RETURNED to the District Court for all purposes.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections, responses, and replies must comply with the same page limits as other filings, unless otherwise excused by the district court's standing orders. See Rule CV-7. The objecting party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.