United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
Guirola, Jr. Chief United Stares District Judge
THE COURT is Defendant Felders Services, LLC's Motion for
Summary Judgment . Plaintiff LaTonya McCullom did not
file a response to the Motion. Having considered the Motion
and the applicable law, the Court is of the opinion that the
Motion should be granted.
a black female, filed this Title VII action against Felders
claiming that she was wrongfully terminated on the basis of
race. McCullom worked as a dietary manager at Driftwood
Nursing Center. In March 2016, Felders became McCullom's
apparent employer when it took control of the dietary
department at the nursing center. Shortly thereafter, Felders
released McCullom from her position and hired LaVoughn
Stokes, a white male, to replace McCullom.
claims it replaced McCullom with Stokes because it could not
wait one year for McCullom to complete the course for
certification as a dietary manager, which Stokes had already
completed. In addition, Stokes had more than 20 years of food
service experience, including military training as a cook,
which McCullom has now effectively admitted was more
experience than she had. In its Motion, Felders argues that
no genuine issue of material fact remains in the case, and
requests judgment matter of law in its favor.
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-movant. Abarca v.
Metro, Transit Auth., 404 F.3d 938, 940 (5th Cir. 2005).
Even so, "[t]he non-movant must go beyond the pleadings
and come forward with specific facts indicating a genuine
issue for trial to avoid summary judgment." See
id. Summary judgment is appropriate if the
non-movant fails to make a showing sufficient to establish
the existence of an element essential to that party's
case and on which that party has the burden of proof at
trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
has not submitted any argument or evidence in opposition to
Felders' Motion. Nevertheless, Felders bears the burden
of establishing the absence 'On December 27, 2016,
Felders sent interrogatories, requests for admissions, and
requests for production of documents to McCullom to be
answered within 30 days. McCullom, however, has failed to
respond to discovery. She also has not responded to a motion
to compel and this motion for summary judgment. Despite her
pro se status, McCullom is still bound to the
discovery and other respective deadlines. See, e.g., Hill
v. Breazle, 197 F.App'x 331, 336-37 (5th Cir. 2006).
of a genuine issue of material fact and, unless it has done
so, the Court may not grant the Motion, regardless of whether
any response was filed. Hibernia Nat'l Bank v.
Administration Cent Sociedad Anonima, 776 F.2d 1277,
1279 (5th Cir. 1985). But the Court will not, in the absence
of proof, assume that McCullom could or would prove the
necessary facts. See 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) (citing Haines v.
Kerner, 404 U.S. 519, 520 (1972); Grant v.
Cellular, 59 F.3d 523, 524 (5th Cir. 1995)); see
also Oviedo v. Lowe's Home Improvement, Inc., 184
F.App'x 411, 413 (5th Cir. 2006).
assuming McCullom could make a prima facie Title VII
case, Felders has articulated at least one legitimate,
non-discriminatory reason for McCullom's termination that
remains unrebutted by McCullom. See Outley v. Luke &
Assocs., 840 F.3d 212, 216 (5th Cir. 2016). In
particular, due to her continued failure to respond to
Felders' request for admissions, pursuant to Fed.R.Civ.P.
36(a)(3), McCollum has admitted that Stokes had
"superior food service and dietary management
experience" and "was closer to certification."
(Defs.' Req. for Admissions, ECF No. 16-1). See,
e.g., Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1048
(5th. Cir. 1996) (uncontroverted evidence that employment
decisions were based on experience was sufficient to
establish an absence of a material fact on the issue of
discriminatory motive); Tillman v. S. Wood Preserving of
Hattiesburg, Inc., 250 F.App'x 622, 625 (5th Cir.
2007) (differences in levels of experience is a legitimate,
nondiscriminatory explanation); Henry v. Continental
Airlines, No. H-09-cv-02420, 2010 WL 3604516, at *9-10
(S.D. Tex. Sept. 9, 2010) (recognizing past experience as a
legitimate, non-discriminatory reason for hiring other
Felders established at least one legitimate,
non-discriminatory reason for McCullom's termination, the
burden shifted to McCullom to show that the reason was a
pretext for discrimination. See Outley, 840 F.3d at
218. To satisfy this burden, McCullom had to provide
sufficient evidence to rebut each of Felders' legitimate,
non-discriminatory reasons for her termination, including
Stokes' superior experience. Jackson v. Watkins,
619 F.3d 463, 467 (5th Cir. 2010) ("Accordingly, Jackson
cannot withstand summary judgment without providing
sufficient evidence to rebut each of Watkins's
nondiscriminatory reasons. He has not done so.").
However, McCullom has offered no evidence to rebut any of
Felder's proffered reasons. Therefore, summary judgment
in favor of Felders is proper. See Outley, 840 F.3d
THEREFORE ORDERED AND ADJUDGED that the  Motion for
Summary Judgment filed by Defendant Felders Services, LLC is
GRANTED and Plaintiffs claims are DISMISSED ...