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Blakney v. Gulfside Casino Partnership

United States District Court, S.D. Mississippi, Southern Division

December 21, 2016




         BEFORE THE COURT is Defendant Gulfside Casino Partnership's Motion for Summary Judgment [25] filed June 15, 2016. This Motion is fully briefed. Having considered the parties' submissions, the record as a whole, and relevant legal authority, the Court is of the opinion the Motion should be denied.

         I. BACKGROUND

         A. Factual Background

         On or about July 1, 2010, Plaintiff Brandon A. Blakney (“Plaintiff”) was hired as a security officer by Defendant Gulfside Casino Partnership, a Mississippi General Partnership (“Defendant”), at Defendant's casino in Gulfport, Mississippi. Am. Compl. [5] at 2. Plaintiff alleges that on October 28, 2014, he was sexually harassed by his supervisor, Billy Bryant. Id. Plaintiff complained about the alleged harassment to Defendant's Human Resources Department on November 14, 2014. Id.

         In December 2014 or January 2015, Plaintiff submitted an application for a promotion to the position of Dual Rate Supervisor. Id.; Application [25-7] at 1. On or about January 26, 2015, John MacGeorge, Defendant's Director of Security, determined that Plaintiff was disqualified from consideration for the position pursuant to Defendant's “policy” that prohibits an employee from applying for a new position within 90 days of receiving a written disciplinary warning, because Plaintiff “had received two written disciplinary warnings in November 2014.” Aff. MacGeorge [32-1] at 1-2; Application [25-7] at 1. B. Procedural Background Plaintiff timely filed a charge of retaliation with the Equal Employment Opportunity Commission (“EEOC”) on or about March 3, 2015. EEOC Charge [1-1] at 1. Plaintiff's EEOC Charge asserts that Defendant denied him an interview or consideration for the position of Dual Rate Supervisor in retaliation for Plaintiff's prior reporting of a “sexual act” by Security Manager Billy Bryant, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). Id. Plaintiff's EEOC Charge also claims that another applicant, Russell Statements, was given the position before the interview process had begun. Id.; see also Pl. Dep. [25-5] at 15. The parties do not appear to dispute that Plaintiff received a right to sue letter from the EEOC.

         On October 13, 2015, Plaintiff filed a Complaint in this Court against Defendant asserting that Plaintiff was the only “applicant not interviewed for the Security Dual Rate Supervisor position” because “he reported the sexual advances of his supervisor, Billy Bryant.” Compl. [1] at 1-3. Plaintiff filed an Amended Complaint [5] on November 4, 2015, likewise advancing a claim for retaliation under Title VII. Am. Compl. [5] at 3.

         On June 15, 2016, Defendant filed a Motion for Summary Judgment [25] arguing that Plaintiff cannot establish that Defendant retaliated against him in violation of Title VII. Mot. [25] at 1-2. Defendant maintains that Plaintiff cannot establish even a prima facie case “in that Plaintiff suffered no adverse employment action and cannot show any causal relationship between his action of reporting his manager and any adverse action.” Id. at 2. Alternatively, Defendant posits that there was a “legitimate, non-discriminatory reason for its action.” Id. Defendant contends that Plaintiff was not interviewed for the position after the interviewing supervisor/manager, John MacGeorge (“MacGeorge”), determined Plaintiff should not be interviewed because he was an unqualified applicant and “was ineligible due to having received written warnings within the preceding 90 day period” per Defendant's disciplinary policy. Mem. in Supp. [26] at 3; Aff. MacGeorge [32-1] at 1-2.

         In his Response [30], Plaintiff maintains that he has made out a prima facie case of retaliation and that he has raised a genuine issue of material fact as to whether Defendant's proffered reason for failing to interview or consider him for the Dual Rate Supervisor position was pretext. Mem. in Opp'n [31] at 1-5. Plaintiff supports his pretext allegations with the Affidavit of Keith Smith (“Smith”) who also applied, and was interviewed, for the Dual Rate Supervisor position. Mem. in Opp'n [31] at 3-4; Aff. Keith Smith [30-1] at 1-2. Plaintiff asserts, and Smith avers, that MacGeorge told Smith that Smith's interview would go forward even though Smith had received a written warning within the preceding 90 days. Mem. in Opp'n [31] at 3-4; Aff. Keith Smith [30-1] at 1-2.

         In its Reply, Defendant contends that Plaintiff has failed to show retaliation because, at the time Smith was interviewed for the position, Smith was in fact “outside the 90 day period” in that Smith's last written warning was dated September 22, 2014, and Smith was interviewed on January 27, 2015. Reply [32] at 5. Therefore, Smith was a “qualified” applicant, while Plaintiff was not a “qualified” applicant based upon his November 2014 written warnings. Id. at 1-5; Aff. John MacGeorge [32-1] at 1-2. Defendant maintains that Plaintiff cannot show retaliation just because Smith was interviewed. Id.


         A. Summary Judgment Standard

         “Summary judgment is appropriate when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.” Cox v. Wal-Mart Stores E., L.P., 755 F.3d 231, 233 (5th Cir. 2014); see Fed. R. Civ. P. 56(a). In deciding a motion for summary judgment, a court “view[s] the evidence and draw[s] reasonable inferences in the light most favorable to the nonmoving party.” Hemphill v. State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir. 2015) (quoting Cox, 755 F.3d at 233); Maddox v. Townsend & Sons, Inc., 639 F.3d 214, 216 (5th Cir. 2011). Before it can determine that there is no genuine issue for trial, a court must be satisfied that “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the movant carries this burden, “the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990) (the nonmovant must set forth specific facts to contradict the specific facts set forth by the movant, general averments are not sufficient).

         To rebut a properly supported motion for summary judgment, the opposing party must show, with “significant probative evidence, ” that there exists a genuine issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000). “A genuine dispute of material fact means that evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC&R Tres Arboles, LLC, 736 F.3d 396, 400 (5th Cir. 2013) (quotation omitted). An actual controversy exists “when both parties have submitted evidence of contradictory facts.” Salazar-Limon v. Houston, 826 F.3d 272, 277 (5th Cir. 2016) (quotation omitted). B. Plaintiff's Title VII Retaliation Claim The antiretaliation provision of Title VII prohibits employers from discriminating against employees or job applicants on the basis that the individual opposed a practice made unlawful by Title VII or made a charge, testified, assisted, or participated in an investigation or proceeding under Title VII. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006) (citing 42 U.S.C. § 2000e-3(a)). A Title VII retaliation plaintiff establishes a prima facie case of retaliation by demonstrating that: “(1) the employee engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection ...

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