United States District Court, S.D. Mississippi, Eastern Division
MICHAEL PATTON, et al. PLAINTIFFS
WAYNE COUNTY, MISSISSIPPI DEFENDANT
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion for Leave to File a
Sur-response (“Motion for Leave”)  filed by
Plaintiffs, and the Motion for Summary Judgment  filed
by Defendant Wayne County, Mississippi. After considering the
submissions of the parties, the record, and the applicable
law, the Court finds that the Motion for Leave  is well
taken and should be granted. The Court further finds that the
Motion for Summary Judgment  should be granted in part
and denied in part.
Jody Ashley (“Sheriff Ashley”) was elected
Sheriff of Wayne County, Mississippi, in 2015, and took
office in January 2016. Plaintiffs Michael Patton
(“Patton”), Patrick Johnson
(“Johnson”), Chartaviaunca Odom
(“Odom”), Dawatha Pickens
(“Pickens”), Mamie Turner (“Turner”),
Reginald Evans (“Evans”), and DeAnthony Jones
(“Jones”) (collectively “Plaintiffs”)
were employed by the Sheriff Department under the previous
administration headed by Sheriff Darryl Woodson
(“Sheriff Woodson”). Plaintiffs are all African
American. Prior to Sheriff Ashley taking office, Plaintiffs
were informed that they would not have a job under the Ashley
November 3, 2016, Plaintiffs filed suit in this Court against
Sheriff Ashley and Wayne County, Mississippi (the
“County”), bringing claims of racial
discrimination under 42 U.S.C. § 1981 and Title VII, as
well as claims under 42 U.S.C. § 1983 for violation of
the Equal Protection Clause.
MOTION FOR LEAVE 
assert that the County included new evidence and arguments in
their Reply  and request leave to file the Sur-response
[144-1] attached to the motion. The County argues that
because the entire depositions cited were attached to its
original motion, not just the excerpts cited by their
arguments, then there is no new evidence presented.
Fifth Circuit has said that a district court has discretion
to rely on new evidence and arguments presented for the first
time in a reply brief, but must “give the non-movant an
adequate opportunity to respond prior to ruling.”
Vais Arms, Inc. v. Vai, 383 F.3d 287, 292 (5th Cir.
2004) (quoting S.W. Bell Tel. Co. v. City of El
Paso, 346 F.3d 541, 545 (5th Cir. 2003)). Even if all
the evidence used by Defendant in reply was submitted with
its original motion, it undoubtedly used different excerpts
of the depositions to support new arguments. To fairly
consider these, the Court will grant
Plaintiffs' Motion for Leave . In the interest of
judicial expediency, the Sur-response [144-1] will be
considered as attached, and Plaintiffs need not refile it as
a separate docket entry.
MOTION FOR SUMMARY JUDGMENT 
Standard of Review
Rule of Civil Procedure 56 provides that “[t]he court
shall grant summary judgment 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). “Where the burden of production at
trial ultimately rests on the nonmovant, the movant must
merely demonstrate an absence of evidentiary support in the
record for the nonmovant's case.” Cuadra v.
Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.
2010) (citation and internal quotation marks omitted). The
nonmovant must then “come forward with specific facts
showing that there is a genuine issue for trial.”
Id. “An issue is material if its resolution
could affect the outcome of the action.” Sierra
Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d
134, 138 (5th Cir. 2010) (quoting Daniels v. City of
Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)).
“An issue is ‘genuine' if the evidence is
sufficient for a reasonable [fact-finder] to return a verdict
for the nonmoving party.” Cuadra, 626 F.3d at
812 (citation omitted).
Court is not permitted to make credibility determinations or
weigh the evidence. Deville v. Marcantel, 567 F.3d
156, 164 (5th Cir. 2009) (citing Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
2007)). When deciding whether a genuine fact issue exists,
“the court must view the facts and the inferences to be
drawn therefrom in the light most favorable to the nonmoving
party.” Sierra Club, 627 F.3d at 138. However,
“[c]onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and
legalistic argumentation do not adequately substitute for
specific facts showing a genuine issue for trial.”
Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002)
(citation omitted). Summary judgment is mandatory
“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.” Brown v. Offshore
Specialty Fabricators, Inc., 663 F.3d 759, 766 (5th Cir.
2011) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
§ 1981 and Title VII Claims
claims under § 1981 and Title VII are evaluated under
the same rubric of analysis. See Byers v. Dallas Morning
News, Inc., 209 F.3d 419, 422 n.1 (5th Cir. 2000)
(citations omitted). Absent direct evidence of racial
discrimination, the Court applies the burden-shifting
framework articulated by the Supreme Court in McDonnell
Douglas Corp. v. Green. Id. at 425 (citing
McDonnell Douglas, 411 U.S. 792, 802-04, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973)).
Under that framework, the plaintiff must establish a
prima facie case of discrimination. If the plaintiff
succeeds in showing a prima facie case, the
defendant must then provide some legitimate,
non-discriminatory reason for the employee's rejection.
Lastly, if the employer gives a legitimate,
non-discriminatory reason for the employment action, the
plaintiff must then prove, by a preponderance of the
evidence, that the proffered reason was mere pretext for
Id. (internal citations omitted). In order to
establish a prima facie case of discrimination,
Plaintiffs must each show: “(1) that [they are]
member[s] of a protected group; (2) that [they were]
qualified for the position[s] held; (3) that [they were]
discharged from the position[s]; and (4) that [they were]
replaced by someone outside of the protected group.”
Id. at 426 (citing Sing v. Shoney's,
Inc., 64 F.3d 217, 219 (5th Cir. 1995)). Once
Plaintiffs have established a prima facie case, the
burden shifts to the County to show a legitimate,
non-discriminatory reason for its actions. Id. at
425. Plaintiffs then have the burden of showing that these
reasons are pretextual by offering
sufficient evidence to create a genuine issue of material
fact either (1) that the defendant's reason is not true,
but is instead a pretext for discrimination . . .; or (2)
that the defendant's reason, while true, is only one of
the reasons for its conduct, and another motivating factor is
the plaintiff's protected characteristic.
Keelan v. Majesco Software, Inc., 407 F.3d 332, 341
(5th Cir. 2005) (quoting Rachid v. Jack In The Box,
Inc., 376 F.3d 305, 312 (5th Cir. 2004)).
the County appears to concede that Plaintiffs have made their
prima facie case, they make numerous arguments that
go directly to the elements of that case. Because of the
ambiguity created by these arguments and in the name of
judicial economy,  the Court will first look at whether a
prima facie case can be ...