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Flowers v. Sessions

United States District Court, S.D. Mississippi, Eastern Division

March 18, 2019

WARREN C. FLOWERS PLAINTIFF
v.
JEFF SESSIONS, ATTORNEY GENERAL DEFENDANT

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT, UNITED STATES DISTRICT JUDGE

         For the reasons below, the Court grants Defendant's Motion for Partial Summary Judgment [56]. Plaintiff's claims of racial discrimination and hostile work environment are dismissed with prejudice.

         I. Background

         This is 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 [56] as to the claims of discrimination and hostile work environment.

         II. Standard of Review

         Rule 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); 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.

         The 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).

         III. Discussion

         A. Discrimination

         Title 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 Cir. 2007).

         Defendant 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.

         Defendant 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.

         Plaintiff 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 judgment burden.

         Defendant 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 ...


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