United States District Court, N.D. Mississippi, Greenville Division
LORETHA D. BROWN PLAINTIFF
COVENANT DOVE CORPORATE DEFENDANT
SHARION AYCOCCK UNITED STATES DISTRICT COURT JUDGE.
filing a charge of discrimination with the Equal Employment
Opportunity Commission and receiving a right to sue letter,
Loretha Brown filed this case against her former employer
Covenant Dove. In her pro se Complaint , Brown
alleges that Covenant Dove refused to promote her, retaliated
against her, and harassed her because of her race, sex, and
age. Covenant Dove filed a Motion for Summary Judgment 
requesting judgment in its favor on all of Brown's
claims. Brown did not file any response.
started working part time as a licensed practical nurse for
health care provider Covenant Dove in September of 2014. In
January of 2015, Brown moved into a full time
position.Covenant Dove operates three shifts for
nurses: 7:00 am to 3:00 pm, 3:00 pm to 11:00 pm, and 11:00 pm
to 7:00 am. When she moved to full time, Brown worked the
11:00 pm to 7:00 am shift. Brown requested a move to the 7:00
am to 3:00 pm shift several times over the next few months.
On September 1, 2015, Covenant Dove informed Brown that she
could move shifts once they found someone to fill her place.
On September 11, 2015, Covenant Dove moved Brown to her
requested shift, 7:00 am to 3:00 pm.
February of 2016, Covenant Dove informed Brown that she was
moving back to the later 11:00 pm to 7:00 am shift. According
to Covenant Dove, a few schedule reassignments were necessary
to provide adequate staffing on all of the shifts, and
management made the reassignments based on seniority. Brown
was unhappy with the change and filed a written grievance.
Before Brown started her new shift assignment, she took one
week of sick leave. Covenant Dove subsequently terminated
Brown; however, her termination and the surrounding
circumstances are not at issue in this case. Brown alleges
that Covenant Dove discriminated against her based on her
race, gender, and age when it refused to promote her to the
shift assignment she wanted. Brown is an African American
female and was approximately 47 years old at the relevant
time. Brown also alleges that Covenant Dove subjected her to
a hostile work environment.
Rule of Civil Procedure 56 governs summary judgment. Summary
judgment is warranted when the evidence reveals no genuine
dispute regarding any material fact, and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
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).
reviewing the evidence, factual controversies are to be
resolved in favor of the non-movant, “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). When such contradictory
facts exist, the Court may “not make credibility
determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120
S.Ct. 2097, 147 L.Ed.2d 105 (2000).
moving party “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.” Celotex, 477 U.S. 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). This
Court has no duty to “sift through the record in search
of evidence to support” the nonmovant's opposition
to summary judgment. Edwards v. Cont'l Cas. Co.,
841 F.3d 360, 363 (5th Cir. 2016) (citing Forsyth v.
Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915
n.7 (5th Cir. 1992)).
establish a claim under Title VII, 42 U.S.C. §§
2000e, et seq., for discrimination based on race,
gender, or retaliation a plaintiff must first establish a
prima facie case under the familiar McDonnell
Douglas burden-shifting framework. See, i.e.,
Heggemeier v. Caldwell Cty., Texas, 826 F.3d 861, 867-69
(5th Cir. 2016); Haire v. Bd. of Sup'rs of Louisiana
State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363
(5th Cir. 2013). The same is true for age discrimination
claims brought under the Age Discrimination in Employment Act
29 U.S.C. § 621, et seq.; see also Leal v.
McHugh, 731 F.3d 405, 410 (5th Cir. 2013). It is well
established that an adverse employment action is an essential
element of the prima facie case for each of these
claims. See Heggemeier, 826 F.3d at 867-69;
Leal, 731 F.3d at 410; Haire, 719 F.3d at
363. Thus, in order to establish a prima facie case
of discrimination based on race, gender, retaliation, or age,
Brown must establish that she was subjected to an adverse
employment action. See id.
alleges that she suffered an adverse action when Covenant
Dove moved her back to the later shift, and then refused to
keep her on her desired shift when she complained. Covenant
Dove argues that the shift change was not an adverse action,
and that Brown has not brought forth any evidence to the
the denial of a promotion can be an actionable adverse
employment action, it is “well established that the
denial of a purely lateral transfer is not an adverse
employment action redressible under Title VII.”
Alvarado v. Texas Rangers, 492 F.3d 605, 612 (5th
Cir. 2007) (citing Burger v. Cent. Apartment Mgmt.,
Inc., 168 F.3d 875, 879 (5th Cir. 1999) (“Refusing
an employee's request for a purely lateral transfer does
not qualify as an ultimate employment decision”);
see also Outley v. Luke & Assocs., Inc., 840
F.3d 212, 217 ...