United States District Court, S.D. Mississippi, Eastern Division
WARREN C. FLOWERS PLAINTIFF
JEFF SESSIONS, ATTORNEY GENERAL DEFENDANT
MEMORANDUM OPINION AND ORDER
STARRETT, UNITED STATES DISTRICT JUDGE
reasons below, the Court grants
Defendant's Motion for Partial Summary Judgment .
Plaintiff's claims of racial discrimination and hostile
work environment are dismissed with prejudice.
a Title VII case. Plaintiff was an FBI Special Agent in
Hattiesburg, Mississippi. He alleges that his training agent,
Special Agent David Ronscka, and his supervisor, Supervisory
Senior Resident Agent Rachel Byrd, discriminated against him
on the basis of his race. He asserted claims of
discrimination, hostile work environment, and retaliation.
Defendant filed a Motion for Summary Judgment  as to the
claims of discrimination and hostile work environment.
Standard of Review
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); see also Sierra
Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d
134, 138 (5th Cir. 2010). “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) (punctuation omitted). The nonmovant
“must 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, 627
F.3d at 138. “An issue is ‘genuine' if the
evidence is sufficient for a reasonable jury to return a
verdict for the nonmoving party.” Cuadra, 626
F.3d at 812.
Court is not permitted to make credibility determinations or
weigh the evidence. Deville v. Marcantel, 567 F.3d
156, 164 (5th Cir. 2009). When deciding whether a genuine
fact issue exists, “the court must view the facts and
the inference 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).
VII prohibits employment discrimination because of race. 42
U.S.C. § 2000e-2(a)(1). On summary judgment, Title VII
claims are analyzed under the McDonnell Douglas
burden-shifting analysis. Thomas v. Tregre, 913 F.3d
458, 462 (5th Cir. 2019). First, the “Title VII
plaintiff bears the burden of establishing a prima facie case
of racial discrimination, after which the burden shifts to
the employer to show some legitimate, nondiscriminatory
reason for the challenged actions.” Id.
“If the employer meets its burden of production, the
plaintiff then bears the ultimate burden of proving that the
employer's proffered reason is not true but instead is a
pretext for the real discriminatory . . . purpose.”
McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th
argues that Plaintiff has insufficient evidence to make out a
prima facie case of discrimination. To establish a prima
facie case of discrimination, Plaintiff must prove that he
“(1) is a member of a protected group; (2) was
qualified for the position at issue; (3) was discharged or
suffered some adverse employment action by the employer; and
(4) was replaced by someone outside his protected group or
was treated less favorably than other similarly situated
employees outside the protected group.”
Thomas, 913 F.3d at 462.
contends that Plaintiff can not prove that he suffered an
adverse employment action. Under Title VII, “[a]dverse
employment actions are ‘ultimate employment
decisions' such as hiring, firing, demoting, promoting,
granting leave, and compensating.” Stroy v.
Gibson, 896 F.3d 693, 699 (5th Cir. 2018) (quoting
Thompson v. City of Waco, 764 F.3d 500, 503 (5th
Cir. 2014)). “[A]n employment action that does not
affect job duties, compensation, or benefits is not an
adverse employment action.” Id.
claims that he suffered at least four adverse employment
actions: a temporary reassignment to Gulfport, removal from
the lead agent role on active cases, a transfer to Jackson,
and termination. Plaintiff has not directed the Court to any
evidence in the record to support his allegations that
Defendant temporarily reassigned him to Gulfport, removed him
from the lead agent role on active cases, or transferred him
to Jackson. “Arguments in briefs, like allegations in a
complaint, are assertions, not evidence.” Collins
v. Jackson Pub. Sch. Dist., 609 Fed.Appx. 792, 795 (5th
Cir. 2015); see also Dean v. Phatak, 911 F.3d 286,
290 (5th Cir. 2018); Turner v. Baylor Richardson Med.
Ctr., 476 F.3d 337, 343 (5th Cir. 2007). The Court is
not obligated to search the record for evidence to support
Plaintiff's claims. Willis v. Cleo Corp., 749
F.3d 314, 317 (5th Cir. 2014). Without evidentiary support,
these bare allegations do not meet Plaintiff's summary
does not deny that it terminated Plaintiff's employment.
However, Defendant argues that Plaintiff failed to exhaust
his administrative remedies with respect to any
discrimination claim arising from his termination.
“Before seeking relief in federal court, Title VII
plaintiffs must exhaust their administrative remedies.”
Stroy, 896 F.3d at 698; see also 42 U.S.C.
§ 2000e-16(c). They do so “by filing a charge of
discrimination with the EEO division of their agency.”
Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir.
2006). “Administrative exhaustion has not been
satisfied until either: (1) the employee receives notice of
final agency action or by the EEOC upon appeal from an agency
decision, or (2) 180 days have passed from the filing of the
administrative complaint or appeal thereof without final
agency decision.” Stroy, 896 F.3d at 698. To
determine which claims are “properly embraced in review
of a Title VII claim, ” the Court considers “the
scope of the EEOC investigation which can reasonably be
expected to grow out ...