United States District Court, N.D. Mississippi, Aberdeen Division
before this Court is Defendant United Parcel Service,
Inc's ("UPS") Motion for Summary Judgment .
Having considered the matter, the Court finds the motion
should be granted.
1991, Plaintiff Lora Spann has been a part time employee of
UPS at its Columbus Customer Center. Spann, an African
American, claims that over the years, UPS has passed her over
for full-time employment and pay raises because of her race.
On May 2nd, 2016, Spann filed a charge of discrimination with
the EEOC, and on December 20, 2016, she filed her complaint
in this cause, alleging that UPS racially discriminated
against her in the course of her employment in violation of
Title VII and 42 U.S.C. § 1981. She alleges that UPS
routinely promoted less qualified white employees to
full-time positions for which she was qualified and provided
less qualified white employees with pay raises that she did
not receive. Compl.  at 2. Spann further alleges that UPS
retaliated against her for complaining about the
discrimination. Id. at 3.
moves for summary judgment. Spann has responded, and the
matter is now ripe for review.
judgment "should be rendered if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as
a matter of law." Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting
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 sufficient
showing 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." Id. at 322, 106
party moving for summary judgment bears the initial
responsibility of informing the Court of the basis for its
motion and identifying those portions of the record it
believes demonstrate the absence of a genuine dispute of
material fact. See Id. "An issue of fact is
material only if'its resolution could affect the outcome
of the action'." Manning v. Chevron Chem. Co.,
LLC, 332 F.3d 874, 877 (5th Cir. 2003) (quoting
Wyatt v. Hunt Plywood Co., 297 F.3d 405, 408 (5th
burden then shifts to the nonmovant to "go beyond the
pleadings and by ... affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for
trial." Celotex, 477 U.S. at 324, 106 S.Ct.
2548 (internal quotation marks omitted.); Little field v.
Forney Indep. Sch Dist., 268 F.3d 275, 282 (5th Cir.
2001); Willis v. Roche Biomedical Labs., Inc., 61
F.3d 313, 315 (5th Cir. 1995). The Court "resolve[s]
factual controversies in favor of the nonmoving party, but
only where there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."
Antoine v. First Student, Inc., 713 F.3d 824, 830
(5th Cir. 2013) (quoting Boudreaux v. Swift Transp. Co.,
Inc., 402 F.3d 536, 540 (5th Cir. 2005)). "[T]he
nonmoving party 'cannot defeat summary judgment with
conclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence."' Hathaway v.
Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (quoting
Turner v. Baylor Richardson Medical Center, 476 F.3d
337, 343 (5th Cir. 2007)).
discrimination claims brought under Title VII and § 1981
require the same proof to establish liability. See Criner
v. Tex.-NM Power Co., 470 F. App'x. 364, 370 n. 3
(5th Cir. 2012) (citing Byers v. Dall Morning News,
Inc., 209 F.3d 419, 422 n. 1 (5th Cir. 2000)).
Therefore, both Spann's Title VII and § 1981 claims
can be analyzed under the Title VII framework. Courts employ
the McDonnell Douglas burden-shifting framework
where the plaintiffs claims of discrimination are based upon
circumstantial evidence, as they are here. See McCoy v.
City of Shreveport, La., 492 F.3d 551, 556 (5th Cir.
2007). First, Spann must establish a prima facie case of
discrimination. See Septimus v. Univ. of Hous., 399
F.3d 601, 609 (5th Cir. 2005) (citing Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct.
2097, 147 L.Ed.2d 105 (2000)). If Spann has done so, UPS
bears the burden of setting forth a legitimate,
non-discriminatory reason for its decision. See Id.
If UPS does so, the presumption of discrimination or
retaliation disappears, and Spann must demonstrate a genuine
dispute of material fact as to whether UPS's reasons are
actually a pretext for discrimination or retaliation. See
Id. (citing Okoye v. Univ. of Tex. Hous. Health Sci.
Ctr., 245 F.3d 507, 512 (5th Cir. 2001)).
argues that Spann cannot establish a prima facie case of race
discrimination for any of her claims, and that even if she
could, she cannot offer evidence that UPS's legitimate,
nondiscriminatory explanations are pretextual.
Spann nominally filed a "response" in opposition to
UPS's motion, its substance is woefully lacking. It is
only three pages in length, contains no citations to either
the law or the factual record, and fails to respond to hardly
any of the arguments presented by UPS. Although the response
refers to a list of exhibits that Spann contends support her
position, the plaintiff apparently could not bother to attach
them to her motion so that the Court may consider them.
56 does not impose upon the district court a duty to sift
through the record in search of evidence to support a
party's opposition to summary judgment.... Rule 56
allocates that duty to the opponent of the motion, who is
required to point out the evidence, albeit evidence that is
already in the record, that creates an issue of fact."
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 916
n.7 (5th Cir. 1992) (citing Nissho-Iwai American Corp. v.
Kline, 845 F.2d 1300, 1307 (5th Cir. 1988)). As the
Court will explain, UPS has met its initial burden in showing
that Spann cannot establish a prima facie case for any of her
discrimination claims. Because Spann did not appropriately
respond, she cannot rebut that showing to create issues of
fact and defeat summary judgment.
Failure to Promote
deposition, Spann identified four individuals and five
promotions upon which she bases her claim: (1) Bryan
McLaughlin, a white male who was promoted to a sales
position; (2) Andrew Jernigan, a white male who was promoted
to an engineering position; (3) David Hubner, a white male
who was promoted to a systems specialist position; and (4)
Becky Swords, a white female, who was first promoted to
Package Dispatch Supervisor, and then received a second
promotion to On-Road Supervisor. Spann Dep. at 77, 85-87,
Prima Facie Case
establish a prima facie case for race discrimination based on
a failure to promote, Spann must show that (1) she was not
promoted; (2) she was qualified for the position she sought;
(3) she fell within a protected class at the time of the
failure to promote; and (4) UPS either gave the promotion to
someone outside of that protected class or otherwise failed
to promote her because of her race. See Autry v. Fort
Bend Indep. ...