United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
LOUIS GUIROLA, Jr., Chief District Judge.
BEFORE THE COURT is the  Motion for Summary Judgment filed by Defendant Island View Casino ("Defendant" or "Island View"). Having reviewed the submissions of the parties and the relevant law, the Court is of the opinion that the Motion should be granted in part and denied in part.
This is an employment discrimination action. Plaintiff Sheila Jenkins ("Plaintiff" or "Jenkins"), a black female over the age of forty who is proceeding pro se, claims that Island View discriminated against her on account of race and age in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Age Discrimination in Employment Act ("ADEA"). She also alleges that she suffered retaliation, hostile work environment, and sexual harassment, and that Island View "provided false statements and slanderous information" to the EEOC (Compl. 1-2, ECF No. 1), which Island View has construed as a defamation claim.
Defendant moved for summary judgment on all claims. As more fully discussed herein, the Court denies Defendant's Motion in part because Defendant failed to meet its summary judgment burden to show that there are no genuine issues of material fact with respect to Plaintiff's claim that she was discriminated against on account of race and age in terms of hostess rotations and seatings. The Court further finds that Defendant has not demonstrated an absence of material fact with respect to Plaintiff's claim that her supervisor retaliated against her prior to when she filed an EEOC charge in March 2013. The Court grants the Motion on all other claims.
STANDARD OF REVIEW
A motion for summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party. Abarca v. Metro. Transit Auth., 404 F.3d 938, 940 (5th Cir. 2005). As movant, Defendant bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). If Defendant carries this burden, the burden shifts to Plaintiff to show that summary judgment should not be granted. Id. at 324-25.
Plaintiff may not rest upon mere allegations in her Complaint but must set forth specific facts showing the existence of a genuine issue for trial. Abarca, 404 F.3d at 940. The Court will not, in the absence of proof, assume that Plaintiff could or would prove the necessary facts. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Indeed, "although the pleadings filed by pro se parties are held to less stringent standards than formal pleadings drafted by lawyers, ' pro se parties must still comply with the rules of procedure and make arguments capable of withstanding summary judgment." Ogbodiegwu v. Wackenut Corr. Corp., 202 F.3d 265, *2 (5th Cir. 1999) (citation omitted).
SUMMARY JUDGMENT FACTS
The Court has thoroughly reviewed Defendant's evidence as well as the more than 150 pages of exhibits submitted by Plaintiff with her response. However, most of Plaintiff's exhibits are irrelevant to the actual issues before it on summary judgment. For example, the Court agrees with Defendants that Plaintiff's Exhibits III and IV (medical documentation and disability benefits notice) and Plaintiff's Exhibit VI (documents allegedly showing that she was assaulted at work by a coworker's roommate) are irrelevant for summary judgment purposes.
Accordingly, in the light most favorable to Jenkins, the relevant facts for summary judgment purposes are as follows:
Plaintiff's employment with Defendant
Island View employed Jenkins from approximately July 2007 to December 2013 when it terminated her for violating Island View's policy regarding rudeness or mistreatment of a guest or co-worker. Island View initially hired Jenkins as a Buffett hostess, but then promoted her to busser and eventually server. Jenkins received and acknowledged receipt of Island View's anti-harassment and anti-discrimination policy upon hire.
Plaintiff's allegations of discrimination
Jenkins' primary complaint concerns hostess rotations and seatings in the Buffet. As a server, Jenkins had to rely on the Buffet hostesses, all of whom were Asian females, for her customers. According to Jenkins, the hostesses sat primarily black customers, whom she says are known to be bad tippers, in her section. She also testified that while the hostesses were supposed to rotate servers, they sat less people in her section, which also led to less money. Jenkins talked to several supervisors about the issue, but nothing was done to correct it.
In her deposition, Jenkins identified white servers that she alleges were treated better ( i.e., were given primarily white customers and/or more customers in the rotation) and servers under the age of forty that she alleges were treated better. She admitted, though, that some black servers received the favorable treatment about which she complained and that some servers over forty receive the favorable treatment about which she complained.
Jenkins also claims, for the first time in response to summary judgment, that a Hispanic female and a black male were treated more favorably than she was because they went to jail and missed work but were able to keep their employment and "[t]his shows a fact of favoritism." (Pl's. Mem. 7, ECF No. 36). The only evidence she offers to support this new allegation is print-outs from a website entitled mugshots.com of the alleged co-employees.
Plaintiff's allegations of hostile work environment and sexual harassment
Jenkins says she began to experience a hostile work environment in 2012. She testified in her deposition:
A: People calling me snitch, people threatening to fight me, coworkers' friends or roommates threatening me at work, other people getting into hostile situations and [Island View] not addressing them. Two people almost had a fight and they didn't do anything about it. But the majority of the hostility was towards me.
Q: At what point did this environment come about?
A: I think in 2012. It started then.
Q: And you felt like it was because they thought you were a snitch, I guess?
A: I don't - I don't really understand how it all came about. My name came up, and it was like whatever was said, the hostility started. And I never know what's said. They never told me what nobody said.
Q: Okay. So they would say things to you like, you are a snitch, or I'm going to kick your ass?
(Pl's. Dep. 153:3-23, Ex. 2 to Def's. Mot., ECF No. 33-2).
With respect to her allegation of sexual harassment, Jenkins testified:
A: They were always showing things on their - sexual stuff on the phone. One specific thing was when Danielle displayed the coworker [on her phone showing him dancing on a stripper pole]. And I wrote a statement about two young males that were making sexual comments. I have that statement. And they constantly talked about sex the whole time, you know, ...