United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK, District Judge.
Defendants have moved for summary judgment  on the remaining counts in this lawsuit. For the reasons cited below, the motion is GRANTED:
Factual and Procedural Background
Plaintiff worked as a Certified Nursing Assistance (CNA) at Aurora Australis, a long-term care and rehabilitation facility in Columbus, Mississippi. She was also a union steward and President of her local Union for much of her ten years of employment. In that capacity, she filed grievances on behalf of her fellow CNAs, attended union meetings, and participated in Collective Bargaining Agreement (CBA) negotiations. Turner was discharged in October of 2011 for initiating a work stoppage.
Plaintiff's complaint alleges she was terminated because of her race in violation of Section 1981, in retaliation for making complaints based on race under Title VII and Section 1981, and suffered a hostile work environment because of her race. Defendants now seek summary judgment on all those claims.
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
Race Discrimination under Section 1981
Section 1981, known as the "equal contracts rights" provision, was enacted shortly after the Civil War and provides in pertinent part that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts... as is enjoyed by white citizens." 42 U.S.C. § 1981(a). Section 1981 defines "make and enforce contracts" as including "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). Thus, Section 1981 "serves as a deterrent to employment discrimination and a means of punishing employers who discriminate on the basis of race." Carroll v. Gen. Accident Ins. Co. of Am. , 891 F.2d 1174, 1176 (5th Cir. 1990). Title VII, unlike Section 1981, is a detailed statutory scheme that "enumerates specific unlawful employment practices" and "provides remedies to employees for injuries related to discriminatory conduct and associated wrongs by employers, " including race-based discrimination by employers. Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___ , 133 S.Ct. 2517, 2522, 2530, 186 L.Ed.2d 503 (June 25, 2013). "Title VII is central to the federal policy of prohibiting wrongful discrimination in the Nation's workplaces and in all sectors of economic endeavor." Id. at 2522, 186 L.Ed.2d 503. The United States Supreme Court has recognized a "necessary overlap" between Section 1981 and Title VII, holding that "Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination." CBOCS West, Inc. v. Humphries , 553 U.S. 442, 455, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008) (quoting Alexander v. Gardner-Denver Co. , 415 U.S. 36, 48-49, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)).
Because race discrimination claims brought under Title VII and Section 1981 require the same proof to establish liability, Plaintiff's discrimination claims can be analyzed under the Title VII rubric of analysis. See Criner v. Tex.-N. M. Power Co. , 470 F.Appx. 364, 370 n.3 (5th Cir. 2012) (per curiam) (citing Byers v. Dall. Morning News, Inc. , 209 F.3d 419, 422 n.1 (5th Cir. 2000)). Where a race discrimination claim is based on circumstantial evidence, as Plaintiff's race discrimination is here, the McDonnell Douglas burden-shifting framework is used. See McCoy v. City of Shreveport, La. , 492 F.3d 551, 556 (5th Cir. 2007) (per curiam). First, Plaintiff must establish a prima facie case of discrimination. See Septimus v. Univ. of Hous. , 399 F.3d 601, 609 (5th Cir. 2005) (citing Reeves v. Sanderson Plumbing Prods. Inc. , 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citations omitted)). If Plaintiff has done so, Defendant bears the burden of setting forth a legitimate, non-discriminatory reason for its decision. See id. If Defendant does so, the presumption of discrimination disappears, and Plaintiff must demonstrate a genuine dispute of material fact as to whether Defendant's reasons are not the true reasons but are instead a pretext for discrimination. See id. (citing Okoye v. Univ. of Tex. Hous. Health Sci. Ctr. , 245 F.3d 507, 512 (5th Cir. 2001)).
Plaintiff claims she was discriminated against on the basis of her race by being terminated and subjected to a racially hostile work environment. To sustain her race discrimination claim based on termination, Plaintiff must first establish a prima facie case by showing (1) she is a member of a protected class, (2) she was qualified for the position at issue, (3) she was the subject of an adverse employment action, and (4) she was replaced by someone outside the protected class, or in the case of disparate treatment, she was treated less favorably than similarly situated employees under nearly identical circumstances. See Lee v. Kan. City S. Ry. , 574 F.3d 253, 259 (5th Cir. 2009); Okoye , 245 F.3d at 513.
Defendant contends that Plaintiff's failure to identify any similarly situated Caucasian employees who were treated more favorably than she prescribes the satisfaction of her prima facie burden. Plaintiffs relying upon the "similarly situated" approach "must show that white employees were treated differently under circumstances nearly identical' to [her]." Mayberry v. Vought Aircraft Co. , 55 F.3d 1086, 1090 (5th Cir. 1995) (citing Little v. Republic Ref. Co. , 924 F.2d 93, 97 (5th Cir. 1991)). "The employment actions being compared will be deemed to have been taken under nearly identical circumstances when the employees being compared  held the same job or responsibilities,  shared the same supervisor or had their employment status determined by the same person, and  have essentially comparable violation histories." Turner v. Kan. City S. Ry. Co. , 675 F.3d 887, 893 (5th Cir. 2012) (quoting Lee , 574 F.3d at 260).
Plaintiff's comparison is limited to vague contentions such as "white employees were not treated the same as black employees, " "white CNAs and employees who in fact had injured, sometimes even severely, residents were not even disciplined, " and "white relatives of white supervisors were giving preferential treatment in obtaining employment positions rather than her or other similarly situated black employees." As to Turner's termination in particular, Plaintiff states that on the day in question with respect to the "work stoppage, " "[n]o white employees were terminated."
A plaintiff must show he has been treated differently from other similarly situated employees to make out a prima facie case for racial discrimination. Abarca v. Metro. Transit Auth. , 404 F.3d 938, 941 (5th Cir. 2005). The Court is of the view that Plaintiff has not made such a showing and thus has not established a prima facie case of racial discrimination under the Title VII framework. See Mayberry , 55 F.3d at 1090 (finding that plaintiff failed to create a jury question on the issue of whether he was treated differently than identical white employees, in part, because there was no evidence of the white employees' work history); McField v. Miss. Dep't of Pub. Safety, 2013 U.S. Dist. LEXIS 82458, 2003 WL 2636616, at *3-4 (S.D.Miss. June 12, 2013) (reasoning that plaintiff failed to show that he and purported comparator, a white member of plaintiff's troop, were similarly situated where "the details provided about [the comparator were] sparse" and there was no evidence that the comparator "had a similar disciplinary history"). Plaintiff's claims of a comparator are too vague to even be evaluated and it is not the Court's duty to sift through the record to find evidence to support her opposition to summary judgment. See Okoye , 245 F.3d at 514 (plaintiff must identify the preferential treatment to another employee ...