Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—S.D. Tex.: Failure to explain reason for laying off Black employee with ‘sufficient clarity’ lands Shell before jury, (Jan 6, 2025)

By Marjorie Johnson, J.D.

Moreover, while the lack of evidence of a meaningful assessment process could not alone prove bias, the employer’s inconsistent explanations and the absence of clear criteria created a triable issue as to pretext.

A former Black offshore operations technician for Shell Pipeline Company survived summary judgment on his Title VII and Section 1981 claims asserting he was discharged as part of reduction in force (RIF) because of his race, color, and national origin, though his ADA claim failed since he was not disabled at the time. A federal district court in Texas found that the employer failed to meet its burden of production under McDonnell Douglas since it did not provide any specific examples of his alleged poor work performance, contemporaneous documentation of the process pursuant to which he was selected for discharge, or any evidence of how his performance compared to white retained coworkers. Moreover, pretext could be inferred from contradictions between the inconsistent reasons the company cited for his discharge and positive remarks made in his written performance reviews (Udoka v. Shell Pipeline Co., L.P., No. 4:22-cv-043774 (S.D. Tex. Dec. 31, 2024)).

Reorganization. In 2006, Shell hired the employee to work offshore in the Gulf of Mexico as an operations technician (OT) on the West Delta 143 Platform (WD143). As part of a reorganization in 2020, two supervisors overseeing the WD143 operations were instructed to reduce the number of OTs by two. In July 2020, they informed the employee and another OT that they had been selected for the RIF and that if they were unable to find new positions, they would be let go effective October 30. The employee was unsuccessful at obtaining a new position and was discharged.

Inference of bias. Because the employee did not cite direct evidence of discrimination, the court analyzed his claims under the McDonnell Douglas burden-shifting framework. And while Shell argued that he failed to present sufficient comparator evidence, the company did not dispute that white OTs in the same position were retained in the layoff. Therefore, he met his prima facie burden.

Proffered reason lacks “sufficient clarity.” The court also held that the employer failed to satisfy its burden to produce evidence of a legitimate, nondiscriminatory reason for the employee's discharge with “sufficient clarity.” The supervisors alleged they reviewed the performance of all OTs on the platform and focused on retaining those who were willing to step up and strive to improve their performance. They further claimed they based their decision on the employee's unwillingness to learn new skills, interpersonal issues, and unwillingness to improve, as set forth in notes they used during his termination interview in which they included several alleged observations about his failures.

However, while subjective perceptions of poor work performance may constitute legitimate, nondiscriminatory reasons for selecting an individual for discharge, the employer failed to provide any specific examples of the employee’s poor work performance, contemporaneous documentation of the process pursuant to which he was selected for discharge, or any evidence of how his job performance compared to any of the white operations technicians who were retained. To the contrary, his selection for discharge was neither extensively documented by records evidencing the process used to select those included in the RIF, nor was it supported by evidence of how his “unwillingness to apply himself to learning new skills, interpersonal issues, and unwillingness to improve” compared to his retained white coworkers.

Contradictions suggest pretext. Even if the employer had met its burden of production, a reasonable jury could conclude its stated reasons were false and unworthy of credence—and thus pretextual—because they were contradicted both by the company’s position statement to the EEOC and by his recent performance reviews. First, the position statement said he was selected “due to his comparative performance,” including concerns about his “consistently not following normal ways of working procedures and wasteful use of platform materials,” and did not mention an unwillingness to apply himself to learning new skills, interpersonal issues, or unwillingness to improve.

Moreover, his written performance reviews contradicted the proffered reasons set forth in both the company’s motion for summary judgment and its EEOC position statement. For instance, in his 2018 review, his supervisor stated that he “has a great work ethic and a good attitude,” “is respectful and courteous to others,” and “has recently enrolled in College to further his education, this shows that he … is constantly trying to improve.” In his 2019 review, the supervisor remarked that he “is a leader,” “has made improvements in his knowledge” and “did a good job completing all his required trainings … [and] one non-required training.” In addition, performance records for 2018 ranked him slightly ahead of a retained white OT while records for 2019 ranked all the OTs as “Strong.”

These inconsistencies and contradictions cast doubt on the truthfulness of the employer’s stated reasons for his discharge. Moreover, there was no evidence the company evaluated both retained and discharged OTs against any fixed criteria during the reorganization. Although the lack of evidence of a meaningful assessment process cannot alone prove that the company discriminated against the employee, the inconsistent explanations and the absence of clear criteria was evidence that created a triable issue as to pretext.

Not disabled when fired. However, his claim for disability discrimination failed because it was undisputed that he was not disabled or regarded as disabled at the time of his discharge. In 2017, he suffered an on-the-job injury that required surgery and physical therapy, after which he was assigned a light-duty desk job onshore. On August 30, 2018, his doctor released him to return to work without restriction, and he then performed all the duties of his job up until his discharge without accommodation.

The case is No. 4:22-cv-04374.

Judge: Lake, S.

Attorneys: Clayton D. Craighead (The Craighead Law Firm) for Daniel Udoka. Mishell B. Kneeland (Culhane Meadows) for Shell Pipeline Co., L.P.

Companies: Shell Pipeline Co., L.P.

Cases: Discrimination RaceDiscrimination NationalOrigin DisabilityDiscrimination Discharge TexasNews