JAIME C. WILKINS, Wilkins,
PLUMROSE USA, INC., Defendants.
SHARION AYCOCK, District Judge.
Plaintiff brought this action under Title VII alleging discrimination by Defendant because of her sex, creation of a hostile work environment, constructive discharge, and retaliation for engaging in protected activity. Defendant filed a Motion for Summary Judgment . Upon due consideration of the motion, responses, rules, and authorities, the Court finds Defendant's Motion is well taken and shall be GRANTED.
Factual and Procedural Background
Jaime Wilkins was hired by Plumrose USA, Inc. as a line worker in its Booneville, Mississippi facility in September 2005. On June 27, 2009, Wilkins moved from the night shift to the day shift and began working under supervisor Rodney Gamble. Wilkins alleges that from the time she began working under Gamble until September 26, 2011, she endured inappropriate comments and unwanted touching by Gamble. She claims this mistreatment culminated in her being discriminated against because of her sex with regard to employee discipline and ultimately being constructively discharged from her position.
On September 25, 2011, Wilkins missed work due to an illness. She alleges that when she called in to notify Plumrose of her absence, Gamble failed to inform her of an upcoming pathogen test set for her next scheduled work day. On days when pathogen tests were administered, employees were required to report to work earlier than the usual time. Wilkins claims that she was unaware of the upcoming pathogen test and that she reported to work on September 26 at the normally scheduled time. Wilkins alleges that she received a penalty for her tardiness, but that a male employee who also arrived late for the test did not. As a result of this penalty, Wilkins was placed on attendance probation.
Summary Judgment Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when the evidence reveals no genuine dispute regarding any material fact and the moving party is entitled to judgment as a matter of law. The rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. The nonmoving party must then "go beyond the pleadings" and "designate specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548 (citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, "but only when... both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). When such contradictory facts exist, the Court may "not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). However, conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash. , 276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile , 10 F.3d 1093, 1097 (5th Cir. 1997); Little , 37 F.3d at 1075.
Analysis and Discussion
It is unlawful under Title VII 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). Where, as here, a plaintiff relies only on circumstantial evidence to prove her discrimination claim, the Court utilizes the framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). "Under this framework, the plaintiff must first create a presumption of discrimination by making out a prima facie case of discrimination." Laxton v. Gap, Inc. , 333 F.3d 572, 578 (5th Cir. 2003) (internal citations omitted).
If the plainiff can establish a prima facie case, "the burden of production shifts to the employer, who must offer an alternative nondiscriminatory explanation for the adverse employment action." Lee v. Kansas City Southern Ry. Co. , 574 F.3d 253, 259 (5th Cir.2009). If the defendant can articulate such a nondiscriminatory reason, the burden then shifts back to the plaintiff who must show at "a new level of specificity" that the explanation is merely a pretext for discrimination. Thornbrough v. Columbus & Greenville R.R. Co. , 760 F.2d 633, 639 (5th Cir.1985), abrogated on other grounds by St. Mary's Honor Center v. Hicks , 509 U.S. 502, 513, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). In the alternative, the plaintiff may show "that the employer's reason, while true, is not the only reason for its conduct, and another motivating factor' is the plaintiff's protected characteristic." Alvarado v. Tex. Rangers , 492 F.3d 605, 611 (5th Cir. 2007) (quoting Rachid v. Jack In The Box, Inc. , 376 F.3d 305, 312 (5th Cir. 2004)). See also 42 U.S.C. § 2000e-2(m).
Defendant in this case contends that Wilkins cannot meet her initial burden of proving a prima facie case. "To establish a prima facie case [for discrimination], the plaintiff must show that (1) she is a member of a protected class, (2) she was qualified for her position, (3) she suffered an adverse employment action, and (4) others similarly situated were more favorably treated." Willis v. Coca Cola Enterprises, Inc. , 445 F.3d 413, 420 (5th Cir. 2006) (internal quotations omitted). Defendant argues that Wilkins did not suffer an adverse employment action by being placed on attendance probation because probation is not an ultimate employment decision and thus not actionable discrimination. Wilkins responds by arguing that probation can be an adverse employment action when accompanied by a loss of benefits.
"Adverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating." Green v. Adm'rs of Tulane Educ. Fund , 284 F.3d 642, 657 (5th Cir. 2002), abrogated by Burlington N. & Sante Fe Ry. co. v. White , 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Dollis v. Rubin , 77 F.3d 777, 781-82 (5th ...