United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK, District Judge.
The remaining Defendants in this case have filed a Motion for Summary Judgment  contending that Plaintiff cannot show a genuine dispute of material fact as to her claims. After reviewing the motion, response, rules and authorities, the Court finds as follows:
Factual and Procedural Background
Plaintiff, an African American female, began her employment with Foamex in 1994. Walker participated in the local union, starting out as a material handler, and moving up the ranks to an Operator 2, and ultimately, an Operator 1. She was terminated in June of 2009. Plaintiff contends that during her employment she was discriminated against and terminated because of her race.
Defendants Brandon Jamison and John Black contend they cannot be held individually liable under Section 1981, but even if they could, Plaintiff has failed to meet her burden and cannot show genuine issues of material fact for trial. They have both moved for summary judgment.
Motion for 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). 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.
Discussion and Analysis
The Court has previously explained in the prior Memorandum Opinion , that individual liability under Section 1981 for non-State actor defendants is unsettled in the Fifth Circuit. See Foley v. Univ. of Houston Sys. , 355 F.3d 333, 338 (5th Cir. 2003); Felton v. Polles , 315 F.3d 470 (5th Cir. 2002); Oden v. Oktibbeha County, Miss. , 246 F.3d 458, 464 n.5 (5th Cir. 2001). Because the Court finds that Plaintiff cannot sustain her claims against those individual defendants on the merits, the Court does not make any ruling as to the providence of individual liability under Section 1981.
Plaintiff claims she was the victim of a bogus scheme designed to result in her termination. She contends Defendants, as well as Human Resources Director Bob Brinton, conspired to get the Plaintiff terminated by intimidating her such that she improperly cut foam. In addition, Plaintiff cites several actions taken during the course of her employment as evidence of her discriminatory termination and to show that those actions constitute discrete discrimination as well. The Court analyzes both the termination and non-termination claims together below.
Employment discrimination claims bought under Section 1981 "are analyzed under the evidentiary framework applicable to claims arising under Title VII of the Civil Rights Act of 1964." Lawrence v. Univ. of Tex. Med. Branch at Galveston , 163 F.3d 309, 311 (5th Cir. 1999) (per curiam). Under the applicable evidentiary framework for analyzing § 1981 claims of race discrimination, a plaintiff must first establish a prima facie case of discrimination by showing that she "(1) is a member of a protected class; (2) was qualified for the position; (3) was subject to an adverse employment action; and (4)... in the case of disparate treatment, ... that other similarly situated employees were treated more favorably." Glaskox v. Harris County, Tex., 537 F.Appx. 525, 528 (5th Cir. 2013) (citation omitted). "If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason' for the adverse employment decision." Id . (citation omitted). Once the defendant has done so, the burden shifts back to the plaintiff to show either (1) that the defendant's reason is a pretext for the real discriminatory purpose, 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[s] alternative)." Id .; see also 42 U.S.C. § 2000e-2(m) ("[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."). Under the pretext alternative, pretext may be established "either through evidence of disparate treatment or by showing that the employer's proffered explanation is false or unworthy of credence.'" Deanes v. North Miss. State Hosp., 543 F.Appx. 366, 370 (5th Cir. 2013) (quoting Laxton v. Gap Inc. , 333 F.3d 572, 578 (5th Cir. 2003)).
Plaintiff has shown that she was a member of the protected class and was qualified for her position. As adverse employment actions, Plaintiff cites both termination and nontermination actions. As to Plaintiff's non-termination claims, she states as a cause of action the following: (1) the failure to be promoted in November 2007; (2) discrimination due to differing job assignments; (3) disparate ...