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Def's App. 's Supp. Finally, Carter asserts that Stan Williams, a contract worker for Flour, witnessed a number of hangman's nooses on the jobsite at Oak Grove during 2009. In the discrimination context, the court could not consider Plaintiffs placement on Step Three Discipline, as it did not constitute an "ultimate employment decision." at 47-48, 206. When asked: "Was it hazing and harassment based on your race?" at 163; Def's App. 's App. Notably, it is a major change in compensation, duties, and responsibilities that would constitute an ultimate employment action. Accordingly, the adverse employment action element encompasses a broader range of conduct in the retaliation context than it does in the discrimination context. I'll take one. at 22. 's App. at 23. Plaintiff also applied for various positions in 2009. Therefore, any reference to the terms "hang(ed)," "hung," "rope," "noose," or the like, in the context described by Carter, can be reasonably interpreted to refer to an African-American man being illegally put to death, usually by a mob of misguided individuals seeking vigilante justice. With respect to his complaint to Nona Johnson about the noose, Plaintiff adduces no evidence that his supervisor, Darren Thomas, had any knowledge of this complaint. The court determines that Plaintiffs claim (6)-termination of Carter's employment-constitutes an adverse employment action in the retaliation context, as this claim met the more-exacting "ultimate employment decision" standard in the discrimination context. Carter's argument is actually that the Step Three letter issued to him was not in conformity with Luminant's policy, that is, Luminant discriminatorily applied its policy with respect to Carter's Step Three Letter. 1999) (citation omitted). Def's App. Defendant construes the similarly-situated requirement too narrowly. King v. Louisiana, 294 F. App'x 77, 84-85 (5th Cir. Def's App. Plaintiff's brief states that Thomas's comment can be translated: "get that ****[*]r out of here." Luminant has written policies prohibiting discrimination and harassment, including that based on race, and also prohibiting retaliation against employees who report discrimination or harassment. Pl. Let's go take our country back." The court overrules as moot Defendant's hearsay objection regarding Plaintiffs statements within the document, as the court does not consider the statements for the truth of the matter asserted but rather for the fact that the statements were made. With respect to these instances, Defendant asserts that the alleged harassment was neither severe nor pervasive enough to constitute a hostile work environment. When isolated from the context, Arceneaux's comments may appear nondiscriminatory or nonracist. Pl. The evidence adduced by Plaintiff only demonstrates that someone was "messing with him," id, which means that someone was either teasing Plaintiff, or engaging in conduct to annoy, irritate, or possibly harm him. 's App. With respect to Plaintiffs claim (3), the court also finds that that Plaintiff has not established a causal link between the alleged retaliatory act and a protected activity. Pl. Finally, Carter argues that Luminant treated him differently than similarly-situated white coworkers. Id. Plaintiff testified that the instructors did not use any racial slurs or epithets and never verbalized any prejudice toward him. Carter produces evidence that the only incident that occurred between his removal from Step One Discipline and his placement on Step Three Discipline is one missed safety meeting in late October 2009. Def's App. A "plaintiff can survive summary judgment by producing evidence that creates a jury issue as to the employer's discriminatory animus or the falsity of the employer's legitimate nondiscriminatory explanation." 's App. The court finds the statements are not offered to prove the truth of the matter asserted but instead to demonstrate Defendant's knowledge of the assertions. Claims (5) and (6) occurred in November 2009, after the two abovementioned instances of protected activity. 1996)). Def's Br. See Fed. at 26. at 14. 's App. Reeves, 530 U.S. at 148. 's App. 's App. Defendant argues that Plaintiff has failed to create a genuine dispute of material fact that he was subjected to a racially hostile work environment. The court disagrees with Defendant's contention that only two incidents were arguably racially-tinged, as it concludes there were six incidents of conduct that can be classified as race-based harassment. 's App. The court will use the former. Plaintiff argues that the temporal proximity of Luminant's receipt and review of his EEOC charge in August 2009 and his alleged reprimand establish the necessary causal connection. Accordingly, this conduct does not constitute race-based harassment. Unauthenticated documents are improper as summary judgment evidence. Plaintiffs testimony, however, reveals that he did not know how this conduct related to his race. denied, 506 U.S. 832 (1992). Luminant filed Defendant's Objections to Plaintiffs Evidence Offered in Support of Plaintiffs Response to Defendant's Motion of Summary Judgment on September 20, 2011. 's App. at 275. 's App. Luminant Recruiting Manager Darrell Jacobsen stated in his affidavit that with respect to each position for which Carter was eligible and met the minimum qualifications, the hiring managers selected a more qualified or suitable candidate. at 271. When asked again how that is racially based or derogatory, Plaintiff shook his head and replied: "Well, that's my answer. at 262.

Br. The third step of the McDonnell Douglas test has been altered by the Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (holding that in Title VII cases, the mixed-motives theory of discrimination is available in cases with circumstantial evidence of discrimination). Plaintiffs declaration states he had a conversation with Revis Goodwin on or about April 28, 2009. at 34. at 41. Plaintiffs assertions contain no reference to conduct that could be considered racially discriminatory in nature and in no way alert his employer that he reasonably believed that unlawful discrimination was at issue. Def's Reply Br. Venture, 235 F.3d 219, 223 (5th Cir. Plaintiff supports this assertion with paragraph 11 of his declaration. Accordingly, the court finds this evidence is insufficient to raise a fact dispute as to whether this conduct was race-based. Approximately three months later, Carter was placed on Step Three Discipline, in early November 2009, and was terminated effective, November 11, 2009. Accordingly, Plaintiff has not provided evidence that Thomas was aware of his protected activity prior to the alleged retaliatory act; thus, this protected activity cannot serve as the basis for retaliation in with respect to Plaintiffs claim (4). With respect to claim (2), Plaintiffs denial of transfer, the court finds that he has established each of the elements of a prima facie case. Def's App. 's App. While Luminant has placed other employees at Oak Grove on Step Three Discipline (including two Caucasian employees who were not currently in any steps of discipline), none of the employees refused to sign their Step Three letters, and all of those employees continued their employment after they signed their Step Three letters. Br. At no time did Carter mention race. Def's App. Plaintiff testified that Instructor Foster would act upset, as if Plaintiff was interrupting him when Plaintiff asked questions, but would stop and elaborate when others asked questions. 's Resp. 's Resp. denied, 513 U.S. 871 (1994). 's App. The court finds that the evidence in the record, when viewed in its totality and in the light most favorable to Carter, is sufficient to create a genuine dispute of material fact as to whether Luminant placed Carter on Step Three Discipline and terminated him in retaliation for activities protected by Title VII. Conduct in which the harasser does not refer to the victim's protected characteristic can be considered harassment based on the victim's protected characteristic. Although not specifically raised as a claim in the Complaint, some allegations therein indicate that Plaintiff asserts a claim for race discrimination based on harassment or hostile work environment. Dec. 6, 2010) (holding that a rope in the shape of a noose hanging from the rafters at the plaintiffs workplace, that a coworker stated was to "wrap around [the] [p]laintiff's neck," causing the plaintiff to fear for his life was insufficient to support a hostile work environment claim, as the incident was isolated and not accompanied by physical contact, the plaintiff did not flee or seek help, and the rope was a commonplace fixture in the workplace.). Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Defendant argues that Plaintiff is unable to establish elements (3), (4), and (5) of his hostile work environment claim. Brian Barnett, speaking for the crew, "wanted to know what could be done to help the situation." Infax, 72 F.3d at 496. at 048. 's Resp. The court will dismiss Plaintiff's discrimination claims on other grounds and thus finds it unnecessary to rule on the applicability of the "same-actor inference.". Def's App. Considering the totality of the circumstances, the court similarly determines that Plaintiff has not established that the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment. The Fifth Circuit's precedent recognizing only "ultimate employment decisions" as actionable adverse employment actions in the discrimination context was unaffected by the Supreme Court's ruling in Burlington Northern Santa Fe Railway v. White, 548 U.S. 53, 61-65 (2006), which abrogated the "ultimate employment decision" standard in the retaliation context. 2005). 's App. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 's App. 's App. A jury could reasonably conclude that a noose discovered on November 1, 2009, or September 29, 2009, for example, was discovered "in or around October 2009.". Pl. 2d 742, 749 (N.D. Tex. Historically, "them" in this context is a phrase used by the majority to refer to persons of another race or ethnic group to avoid using the actual name of the race or ethnic group. "Close timing between an employee's protected activity and an adverse action against [him] may provide the 'causal connection' required to make out a prima facie case of retaliation." Def. at 21. This conduct, however, does not constitute race-based harassment, as Plaintiff has not provided evidence or facts to support his assertion that his level of discipline was more severe than that imposed on white employees for similar conduct. A time lapse of up to four months has been found sufficient to satisfy the causal connection required to make out a prima facie case of retaliation for summary-judgment purposes. 's App. Plaintiff also presented evidence that he had discussions with management about taking leave under the Family Medical Leave Act ("FMLA") because of job-related anxiety issues. As Defendant Luminant fully addresses this matter, the court assumes that such claim has been raised and will address it. Plaintiff testified that there were only two brooms, and two other employees were using them. See Pl. at 048. Pl. The court determines that Defendant has articulated a legitimate, nondiscriminatory reason for denying Plaintiff's request for transfer. Former Luminant Employee Relations Specialist Nona Johnson testified that the Oak Grove facility was new, and, accordingly, every employee in a particular group was tasked with writing different procedures for the plant. Pl. At this point, summary judgment is appropriate unless the plaintiff raises a genuine dispute of material fact that the defendant's rationale is pretextual. Plaintiff has not asserted that he was replaced by someone outside his protected class. at 21. Defendant argues that the position required a high school diploma, GED, or equivalent and that Plaintiff has failed to show that Scarbrough does not possess a GED or the equivalent. ), cert. Def. at 59-60), attached as an excerpt from the Thomas Deposition, pursuant to Federal Rules of Evidence 602, 801, 802, 901 on the bases that it is unauthenticated, lacks a proper foundation, and contains hearsay statements of the Plaintiff. It is common knowledge that bleach is used to clean or lighten, and as Timmons looked at Carter directly while making this statement, it gives the court no pause to conclude that Instructor Timmons's "bleach" comment was race-based. The court finds it relevant that Carter was the only black person on his crew and one of two black persons of approximately one hundred fifty workers at the plant site while employed at Luminant. The document indicates that Jerry Haun attended the meeting. First, when Carter began working on the crew for Supervisor Thomas, he told Carter that he had been reading a book, and when Carter inquired what it was about, Thomas said it was about a slave whose master helped him get a job. Plaintiff asserts in his response brief that he opposed racial discrimination by making a complaint to Revis Goodwin in February 2009. Id. at 54. The deposition testimony supports the idea that Thomas wanted to take the country back from liberals or Democrats, and the testimony of Carter essentially concedes this.