Ortiz v. Shaw Group Inc, et al

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20983
Summary Calendar
ROBERTO ORTIZ,
Plaintiff-Appellant,
versus
THE SHAW GROUP, INC.; STONE & WEBSTER, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
Civil Action No. 4:05-cv-01671
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
This appeal arises from the district court’s grant of summary judgment in favor of Stone &
Webster, Inc., and Webster Services, L.L.C. (collectively “Stone & Webster”) on Roberto Ortiz’s
claims of intentional race discrimination. We affirm the district court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
United States Court of Appeals
Fifth Circuit
F I L E D
October 11, 2007
Charles R. Fulbruge III
Clerk

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Stone & Webster provides engineering, procurement, and construction (“EPC”) products and
services. Oritz, an employee at Stone & Webster, worked as a process engineer. In this position,
Ortiz dealt with clients in the petrochemical and refining industries. In 2000, Ortiz transferred into
the technology group as a specialist. Shortly thereafter, Ortiz asked Don Bernard, the head of
business development, for a transfer to the business development group. In 2001, Bernard granted
Ortiz a transfer to work as a sales representative and later as a business development manager. Ortiz
focused on providing clients products and services in the petrochemical and refinery business. The
business development group also serviced power plants. Over time, Bernard assigned additional
duties and customers to Ortiz’s workload. As Ortiz gained more experience, Bernard increased his
responsibilities to include developing business with refinery clients on the West and Gulf Coasts of
the United States, PEMEX in Mexico, and PDVSA in Venezuala. Ortiz received positive work
evaluations in this position.
In 2000, Stone & Webster’s business declined with refining companies due to a downturn in
the domestic process market. As a result of the adverse market, Stone & Webster decreased its
Houston workforce from 500 employees to approximately 250 employees over a four-year period.
In 2002, Stone & Webster’s management instructed Bernard to lay off business development
managers. During the initial reduction, Bernard released two Caucasian business development
managers but kept Ortiz on the team.
In late 2003, Stone & Webster continued its organization. Abe Fatemizadeh, the Operations
Manager, met with Randy Harrison, Bernard’s direct supervisor, and Bernard to review staffing
decisions for the process business development group. The managers determined that Stone &
Webster needed to shift the focus of the process business development group from primarily selling

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technology to primarily selling EPC services. Fatemizadeh suggested that Bernard lay off
approximately half of his process business development managers, and Fatemizadeh and Harrison
requested that Bernard recommend employees for termination.
Bernard’s staff included business development managers working both in territories outside
North and South America and in the United States and territories in the Americas. According to
Stone & Webster, due to the specialized knowledge and experience of the managers working outside
of the United States, Bernard only considered process business development managers assigned to
the Americas for the impending lay off. These three managers were Ortiz and two Caucasian males,
William Wallendorf and William Creighton. Stone & Webster contends that Bernard based his
employment decision on which managers possessed the most beneficial skills and experiences for the
company in light of market conditions and the company’s plan to emphasize the sale of EPC services.
Bernard decided to keep Creighton and lay off Ortiz and Wallendorf. Creighton worked on
business development for the petrochemicals market. Based on Bernard’s assessment, even though
the petrochemicals market suffered a decline, the prospect for growth seemed better than the refining
market. Creighton also possessed more EPC sales experience than Ortiz and Wallendorf, and he was
working on two major EPC projects for Chevron Phillips Chemical in the Middle East valued at $300
million and $1.2 billion at the time Bernard executed the lay off decision. In light of Creighton’s
current projects and experience, Bernard decided to retain him at the company. Bernard’s superiors
accepted his recommendation.
After terminating Ortiz, Stone & Webster did not hire a replacement. During the corporate
reorganization, Stone & Webster laid off thirty-one employees–nine of the thirty-one employees
worked in the Houston office and of the Houston employees, six were Caucasian, two were Hispanic,

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and one was African American.
On May 9, 2005, Ortiz filed a lawsuit against Stone & Webster, claiming unlawful
discrimination based on his race, color, and national origin. Stone & Webster moved for summary
judgment. Stone & Webster argued that it articulated a legitimate, non-discriminatory reason for
Ortiz’s termination, a reduction-in-force prompted by declining market conditions, which suffices to
preclude a finding of intentional discrimination. The district court granted Stone & Webster’s motion
and on November 15, 2006, entered final judgment as a matter of law. Ortiz timely appeals the
district court’s judgment.
II. STANDARD OF REVIEW
This court reviews a district court’s grant of summary judgment de novo, applying the same
legal standards as the district court. Machinchick v. P.B. Power, Inc., 398 F.3d 345, 350 (5th Cir.
2005). In deciding a motion for summary judgment, the court must determine whether the
submissions 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. Fed. R. Civ. P. 56(c); Hart v. Hariston, 343 F.3d 762, 764
(5th Cir. 2003).
III. DISCUSSION
To establish a prima facie case of intentional discrimination in a reduction-in-force case, a
plaintiff must establish the following elements: (1) he is a member of a protected group; (2) he was
adversely affected by the employer’s decision; (3) he was qualified to assume another position at the
time of discharge; and (4) there is sufficient evidence, either circumstantial or direct, from which a
fact finder may reasonably conclude that the employer intended to discriminate in reaching the
adverse employment action, or others who were not members of the protected class remained in

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similar positions. Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996); Amburgey v.
Corhart Refractories Corp., Inc., 936 F.2d 805, 812 (5th Cir. 1991). If the plaintiff successfully
establishes his prima facie case and creates a rebuttable presumption of discrimination, then the
employer must assert a legitimate, nondiscriminatory reason for the employment action. Bauer v.
Albermarle Corp., 169 F.3d 962, 966 (5th Cir. 1999).
Once an employer satisfies its burden, the presumption of discrimination falls aside, and the
plaintiff must create an issue of fact “either (1) that the defendant’s reason is not true, but is instead
a pretext for discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is only
one of the reasons for its conduct, and another motivating factor is the plaintiff’s protected
characteristic (mixed-motive alternative).” Rachid v. Jack In The Box, Inc., (376 F.3d 305, 312 (5th
Cir. 2004). If the plaintiff shows that the illegal discrimination was a motivating factor, then the
defendant may respond with evidence that the same employment decision would have occurred
regardless of discriminatory animus. Id. at 312.
In this appeal, honing in on the prima face case, the parties contest whether Ortiz created a
genuine issue of material fact on his allegations that Stone & Webster intentionally discriminated
against him because of his race, color, and national origin. First, Ortiz argues that Creighton
remained in a “similar position” after his termination, which demonstrates Stone & Webster’s
unlawful discrimination. Stone & Webster presented uncontroverted evidence to the district court,
however, that the employees were not similarly situated with regards to their positions at Stone &
Webster or work experience. See Shackelford v. Deloitte &Touche, LLP, 190 F.3d 398, 405-06 (5th
Cir. 1999) (holding that similarly situated means employees with the same position, qualifications,
and pay rate). Whereas Creighton held the position of a business development director, Ortiz worked

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as a area sales manager, meaning that Creighton was employed in the most senior manager position
and Ortiz in the lowest ranking manager position. Further, business development directors, such as
Creighton, were primarily responsible for pursuing EPC opportunities, which aligned with Stone &
Webster’s business decision to pursue EPC service sales as opposed to refinary technology. Finally,
Creighton’s prior work experience included sales positions at two EPC companies, Fluor Daniel and
Raytheon. Accordingly, Ortiz’s argument that he and Creighton were similarly situated at the time
of his termination fails based on the evidence in the record.
Second, Ortiz argues that Stone & Webster re-hired Wallendorf, the second manager laid off
during the workforce reduction and a Caucasian male, proving that the only manager actually
terminated during the reduction-of-force belonged to a protected class. The undisputed evidence
demonstrates, however, that Stone & Webster did not re-hire Wallendorf into the same position of
a business development manager. On January 9, 2004, Stone & Webster terminated Wallendorf and
Ortiz. Following their termination, Wallendorf worked on a temporary basis pursuant to a consulting
contract with the technology group. Ortiz asserts “Wallendorf has enjoyed continuous employment
with Stone & Webster and has earned a continuous income as well.” Even assuming the truth of this
statement, based on this evidence alone, Ortiz cannot sustain his claim of discrimination. Wallendorf
no longer works as a full-time permanent employee in the business development department; instead,
he works on a contractual basis with the technology group. Therefore, Wallendorf’s current
employment arrangement with Stone & Webster fails to establish that the company treated Ortiz
differently than a non-member of the protected class in laying him off during the reduction-in-force.
In summary, Ortiz presented no evidence to the district court in support of the final prong of

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his prima facie case. As his central strategy, Ortiz attempted to show that his two co-workers in the
business development group were similarly situated to himself and remained in the same position.
For the reasons stated above, however, Stone & Webster’s employment decisions regarding
Creighton and Bernard do not satisfy Ortiz’s burden of establishing a prima facie case of race
discrimination. Thus, the district court properly granted Stone & Webster’s motion for summary
judgment.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s judgment.

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