MEMORANDUM OPINION

SHARION AYCOCK, District Judge.

Presently before the Court are Defendants' Motions for Summary Judgment [59, 67, 70].1 After considering the motions, response, rules, and authorities, the Court finds as follows:

BACKGROUND

In October 2004, Plaintiff Crystal Finnie began working for the Lee County Sheriff's Department. Plaintiff was employed as a detention officer at the Lee County Juvenile Detention Center ("JDC") until her termination in April 2009. Plaintiff had an array of job duties, as she was responsible for booking, searching, feeding, escorting, and transporting detainees, conducting searches of cells, and handling disturbances. It is undisputed that detention officers, like Plaintiff, are subject to a uniform policy that states, in pertinent part, that detention officers must wear pants furnished by the sheriff's department.

Plaintiff abided by this uniform policy, apparently without complaint, until September 2008. Plaintiff asserts that she converted to the Pentecostal faith in August 2008, and, due to this, she was under the conviction that she could no longer wear pants. In September 2008, Plaintiff allegedly met with Sheriff Jim Johnson, informed him that wearing pants would violate her religious beliefs, and requested an exemption from the uniform policy.2 Plaintiff asserts that Sheriff Johnson was, at that time, "real supportive" of her beliefs. At some point in or around September 2008,3 Plaintiff asked JDC administrator Steve White for permission to wear a skirt instead of the prescribed "pants-only" uniform. Steve White told Plaintiff that he would have to ask Sheriff Johnson.

Before hearing back from Sheriff Johnson or Steve White, Plaintiff began wearing a skirt4 to work on or about March 6, 2009.5 On March 16, 2009, after Plaintiff returned from escorting three juveniles to court, she was confronted by Corey Finnie,6 who informed Plaintiff that Steve White had stated that if Plaintiff wore her skirt again to work, she would be suspended for three days without pay. Plaintiff was also directly approached by Steve White later that same day, and White confirmed what Corey Finnie had stated. After receiving this directive, Plaintiff asserts that she then personally appealed to Sheriff Johnson to allow her to wear a skirt. Sheriff Johnson told Plaintiff, on March 16, 2009, that he had one more call he was waiting on to confirm whether or not Plaintiff could wear a skirt while at work. He informed Plaintiff that he would get back in touch with her by the end of her shift. Around 5:45 p.m. on the same day, Plaintiff received a call from Steve White, informing her that she could either wear pants in compliance with the uniform policy or turn in a letter of resignation.

The following day, March 17, 2009, Plaintiff called Steve White and asked for permission to begin taking her accumulated vacation leave, apparently hoping that the Sheriff would reconsider his decision while she was on leave. While on leave, Plaintiff met with an attorney and, on March 19, 2009, she filed a charge of religious and gender discrimination with the EEOC. Plaintiff's attorney mailed a letter7 and a copy of Plaintiff's EEOC charge to Sheriff Johnson. Sheriff Johnson did not respond to the letter.8

In April 2009, after Plaintiff's vacation time was apparently used up, Plaintiff either called, or met with, Steve White to see if there was any change in the situation concerning the Sheriff's decision with respect to the uniform policy. White told Plaintiff that she would be required to wear pants. Specifically, according to Plaintiff, White stated, "just put your pants on and come back to work." Plaintiff again communicated to White that she could not wear pants based on religious reason. The very next day, Plaintiff met with Sheriff Johnson.9 At this meeting, Sheriff Johnson terminated Plaintiff's employment.

Plaintiff filed this lawsuit on March 12, 2010, alleging that her termination violated her First Amendment rights of free speech and the free exercise of religion and constituted religious and gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964. Defendants have filed three Motions for Summary Judgment, arguing they are entitled to judgment as a matter of law as to all of Plaintiff's claims.

LEGAL STANDARD

Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. 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).

The party moving for summary judgment "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." Id. 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). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, "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). However, conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1993); Little, 37 F.3d at 1075.

DISCUSSION AND ANALYSIS

A. Free Speech Under the First Amendment

Plaintiff has conceded her First Amendment free speech claim in her brief in opposition to summary judgment. As such, the Court does not analyze the issue, and Defendants are entitled to summary judgment on this claim.

B. Free Exercise of Religion Under the First Amendment

Defendants contend that they are entitled to judgment as a matter of law because the uniform policy utilized is rationally related to Lee County's legitimate interest in safety and security in the JDC. Plaintiff, in response, does not contend otherwise; instead, Plaintiff asserts that collateral estoppel prohibits Defendants from litigating this claim, as it was allegedly litigated before the Board of Review of the Mississippi Department of Employment Security ("MDES").10

In order to understand this issue, some background information is needed. After Plaintiff was terminated, she applied for unemployment benefits, and an Administrate Law Judge found in Plaintiff's favor. Defendants appealed to the Board of Review, which issued a remand order directing additional testimony to be taken. After such additional testimony had been gathered, the Board of Review issued a decision finding in favor of Plaintiff. Specifically, the Board of Review found — in pertinent part — as follows:

Lee County appealed the Board of Review decision that Plaintiff was entitled to unemployment benefits to the Circuit Court of Lee County pursuant to Mississippi Code Annotated § 71-5-531. On July 26, 2011, the circuit court ordered that the matter should be remanded to the Board of Review for additional fact finding. For the reasons discussed herein, the Court finds collateral estoppel does not prohibit the Defendants from litigating its defense to Plaintiff's free exercise claim.

Instead of the usual (i.e., defensive) use of collateral estoppel, Plaintiff seeks to apply it offensively, requesting that the Court declare that — as a matter of law — Defendants violated Plaintiff's rights under the Free Exercise Clause due to certain determinations made by the Mississippi Department of Employment Security. The law is clear that "when a state agency acting in a judicial capacity ... resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, federal courts must give the agency's fact-finding the same preclusive effect to which it would be entitled in the State's courts." Univ. of Tenn. v. Elliott, 478 U.S. 788, 799, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) (internal quotation marks, alteration, and citation omitted). "Under Mississippi law, res judicata or collateral estoppel precludes relitigation of administrative decisions."11 Smith v. Univ. of Miss., 797 So.2d 956, 963 (Miss.2001) (involving a terminated state employee who failed to appeal the dismissal decision of the Personnel Action Review Board to the circuit court by writ of certiorari as mandated by Miss.Code Ann. §§ 11-51-93 and -95); see also Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So.2d 853, 861 (Miss.Ct.App.1999) (involving the failure to file an appeal of the Permit Board's decision within twenty days after it was entered into the books as mandated by Miss. Code Ann. § 49-17-29). "`Once an agency decision is made and the decision remains unappealed beyond the time to appeal, it is barred by administrative res judicata or collateral estoppel.'" A & F Prop., LLC v. Madison Cnty. Bd. of Sup'rs, 933 So.2d 296, 302 (Miss.2006) (quoting Zimmerman, 747 So.2d at 861) (citing Hood v. Miss. Dep't of Wildlife Conservation, 571 So.2d 263, 268 (Miss. 1990)).12

Plaintiff relies solely on Cox v. DeSoto County, Miss., 564 F.3d 745 (5th Cir.2009) for the proposition that she may invoke collateral estoppel to preclude Defendants from defending Plaintiff's free exercise claim. In Cox, the plaintiff alleged that she was transferred from her secretarial position in the sheriff's office to a position in the jail for which she was not trained or qualified due to her age and her refusal to campaign actively for the sheriff's reelection. Plaintiff eventually filed suit on these claims, although she continued to be employed at the jail. While her first suit was pending, plaintiff made a report to her jail supervisor to the effect that she had witnessed abuse of a jailed inmate by several officers. Following an investigation by the DeSoto County District Attorney's office, it was found that no misconduct occurred and that plaintiff gave inconsistent statements about the events she allegedly witnessed. Plaintiff was terminated for giving a false report. She amended her complaint in the wrongful transfer lawsuit, contending that DeSoto County terminated her in retaliation for filing the wrongful transfer lawsuit and that the reason given for her firing was pretextual. She later sued several individual defendants, such as the sheriff and the district attorney; that suit was consolidated with the original DeSoto County suit.

The plaintiff filed for unemployment benefits, and the Mississippi Employment Security Commission ("MESC") conducted a hearing and determined that plaintiff was not eligible for benefits because she was discharged for work-related misconduct. She unsuccessfully appealed to an Appeals Referee and Board of Review. She then filed an appeal in the local circuit court, which she ultimately dismissed. After the dismissal of her administrative case, the defendants in the wrongful transfer/termination case filed a motion for summary judgment contending that the collateral estoppel effect of the MESC ruling barred her case in federal district court. The court granted the summary judgment as to the termination claims.

The Fifth Circuit, on appeal, was faced — in pertinent part — with the question of whether or not the court should give collateral estoppel effect to the MESC's findings. The court found as follows:

Id. at 749 (emphasis added).13 In Cox, as well as in Raiola v. Chevron U.S.A., Inc., 872 So.2d 79, 84 (Miss.Ct.App.2004), the party against whom collateral estoppel was asserted had elected not to pursue an appeal to the circuit court. The decisions of the administrative decisions were final; thus, collateral estoppel could be properly invoked. In contrast, in the case at bar, Defendants have not only filed an appeal of the Board of Review's finding to the Circuit Court of Lee County, but the circuit court has also ordered that the matter be remanded. Thus, Plaintiff's reliance on Cox to invoke collateral estoppel in this action is misplaced, as the holding of Cox is inapposite to the situation presented here.14

After determining the collateral estoppel doctrine to be inapplicable, the Court turns to the merits of Plaintiff's free exercise claim.15 The Free Exercise Clause of the First Amendment, applicable to the states through the Fourteenth Amendment, forbids the adoption of laws designed to suppress religious beliefs or practices unless justified by a compelling governmental interest and narrowly tailored to meet that interest. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). The Free Exercise Clause, however, "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." Employment Div., Dept. of Human Resources of Or. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (internal quotation marks omitted). "A law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Church of Lukumi, 508 U.S. at 531, 113 S.Ct. 2217.

In Smith, the Supreme Court held that the Free Exercise Clause does not inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct. Id. at 878-82, 110 S.Ct. 1595. The Court held that the Free Exercise Clause did not bar the State of Oregon from enforcing its blanket ban on peyote possession with no allowance for sacramental use of the drug. The Court rejected the argument that the balancing test set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), which instructs that governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest, should apply.

Congress responded to Smith by passing the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb et seq. RFRA prohibited governments from "substantially burdening" a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden (1) is in the furtherance of a compelling governmental interest; and (2) the least restrictive means of furthering that compelling governmental interest.16 "[U]niversal" in its coverage, RFRA "applie[d] to all Federal and State law," see former § 2000bb-3(a), but notably lacked a Commerce Clause underpinning or a Spending Clause limitation to recipients of federal funds. The Supreme Court examined RFRA in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). The Court in Flores invalidated RFRA as applied to States and their subdivisions, holding that the Act exceeded Congress' remedial powers under the Fourteenth Amendment. Id. at 532-536, 117 S.Ct. 2157.17

As Defendants points out, while Smith involved a generally applicable criminal law, the principles driving the rationale and holding in Smith have been applied outside of the criminal law context to laws, rules, and policies that are neutral and of general applicability. For example, in Seabrook v. City of New York, 210 F.3d 355, 2000 WL 349276, at *1-*2 (2d Cir. 2000), the Second Circuit encountered a case very similar to this one. There, the district court had denied the plaintiffs' motion for a preliminary injunction seeking to enjoin the defendants from enforcing a new Department of Correction directive that forbid correction officers from wearing skirts while on duty. The plaintiffs alleged that the directive, by requiring them to wear pants in contravention of their religious faith, violated the Free Exercise Clause, as well as Article I § 3 of the New York State Constitution. The Second Circuit held that the plaintiffs could not show serious questions going to the merits, reasoning as follows:

Id., at *1.18 The Second Circuit in Seabrook went even further and found that,

Id., at *2.

After the plaintiffs' preliminary injunction motion was denied, the defendants in Seabrook moved, pursuant to Federal Rule of Civil Procedure 12(c), for a judgment on the pleadings or, in the alternative, summary judgment pursuant to Rule 56. See Seabrook v. City of New York, 2001 WL 40767 (S.D.N.Y. Jan. 16, 2001). The district court dismissed all of the plaintiffs' claims under the First and Fourteenth Amendments, quoting Smith and noting that "[t]he Free Exercise Clause of the First Amendment does not relieve individuals of their obligation to comply with valid laws of general applicability." Id., at *2; see also Flores, 521 U.S. at 535, 117 S.Ct. 2157 ("When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs.").

The Seabrook court then addressed an additional argument and, while the Plaintiff here fails to advance such an argument, it is still relevant to this action. The plaintiffs in Seabrook argued that Smith and Flores were not applicable because the directive forbidding correctional officers from wearing skirts was not a law or a regulation, but instead a workplace rule. The court rejected the plaintiffs' argument, relying in part on the Supreme Court's decision in Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976), where the Court held that "[c]hoice of organization, dress, and equipment for law enforcement personnel is a decision entitled to the same sort of presumption of legislative validity as are state choices designed to promote other aims within the cognizance of the State's police power." The Court in Kelley upheld a county regulation limiting the length of a policeman's hair and, in so doing, the Court acknowledged that it had already sustained "comprehensive and substantial restrictions upon activities of both federal and state employees lying at the core of the First Amendment." Kelley, 425 U.S. at 245, 96 S.Ct. 1440 (citing United States Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)); see also Riggs v. City of Fort Worth, 229 F.Supp.2d 572, 581 (N.D.Tex.2002) ("Courts have long held that the city through its police chief has the right to promote a disciplined, identifiable, and impartial police force by maintaining its police uniform as a symbol of neutral government authority, free from expressions of personal bent or bias.") (internal quotations omitted).

While the interest claimed to have been protected in Kelley was a liberty interest under the Fourteenth Amendment, the Court referred to a balancing of the interests analysis which was originally formulated in the First Amendment arena and is set forth in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The Kelley Court further observed the hair-length rule could not be examined in isolation, but instead must be viewed "in the context of the county's chosen mode of organization for its police force." 425 U.S. at 247, 96 S.Ct. 1440. Uniform hair-length, like similarity in appearance and conduct, was believed by the police force to be an important factor in establishing a desired measure of discipline and esprit de corps. The Supreme Court held that such consideration was permissible for a paramilitary organization like a police force and determined that the regulation was a reasonable exercise of administrative discretion. Id.

The Seabrook court went on to note that "the Smith decision has been relied upon in upholding neutral governmental safety regulations that interfere with public employees' First Amendment rights to freely exercise their religion." Seabrook, 2001 WL 40767, at *4. As such, the district court granted summary judgment to the defendants, noting that the directive forbidding skirts was a neutral rule of general applicability and did not implicate the plaintiffs' free exercise rights. Id.

Along the same lines as those followed in Seabrook, in Kalsi v. New York City Transit Authority, 62 F.Supp.2d 745, 761 (E.D.N.Y.1998), the plaintiff, a member of the Sikh religion, challenged the defendant's policy of requiring its car inspectors to wear Transit Authority-provided hard hats. As a Sikh, the plaintiff was required to wear a turban on his head at all times, other than when sleeping or bathing. The turban effectively prevented the plaintiff from wearing the required hard hat. The plaintiff refused to comply with management's requests and was terminated, later filing suit under the First Amendment. In granting summary judgment for the defendant, the Kalsi court — citing Smith — found that "it is not a violation of the Free Exercise Clause to enforce a generally applicable rule, policy, or statute that burdens a religious practice." Id. at 761 (emphasis added).

More importantly, the Fifth Circuit has applied Smith to a free exercise challenge. See Daniels v. City of Arlington, 246 F.3d 500, 505 (5th Cir.2001). In Daniels, a city police officer was terminated for insubordination after he refused to stop wearing a gold cross pin on his uniform. The officer sued the city and its police chief, alleging that the police department's "no pins" policy violated the First Amendment and that he was the victim of religious discrimination under Title VII.19 The police officer moved for partial summary judgment, and the defendants moved for summary judgment. The district court denied the officer's motion and granted the defendants' motions. On appeal, the Fifth Circuit held that the policy did not violate the First Amendment. The Fifth Circuit, citing to Smith, reasoned as follows:

Id. at 505; see also, e.g., Jacobs v. Clark Cnty. School Dist., 526 F.3d 419, 439 (9th Cir.2008) (applying Smith to free exercise claim).

Here, like in Daniels, the pants-only policy does not, on its face, implicate Plaintiff's free-exercise rights. It is facially neutral and generally applicable and, given Plaintiff's failure to respond to the merits of Defendants' motion for summary judgment on free exercise grounds, Plaintiff provides no competent evidence to suggest otherwise. Further, the policy does not target religion and, as the court found in Seabrook, it only incidentally affects Plaintiff's individual religious practice. Thus, this case differs from Booth v. Maryland, 327 F.3d 377 (4th Cir.2003). In that case, a correctional officer and practicing member of the Rastafarian religion brought an action against the State of Maryland, alleging that his civil rights were violated when he was subjected to disciplinary action for wearing his hair in modified dreadlocks in violation of the dress code and grooming policy. The district court entered summary judgment in favor of the state defendant, and the Fourth Circuit affirmed in part, reversed in part, and remanded. Relevant here is the claim in Booth brought under the Free Exercise Clause. The court began by citing and applying Smith's rationale. The Fourth Circuit upheld the district court's conclusion that "there was `no indication, either from their language or effect, that the rules that Booth challenge[d] as violative of his rights were targeted at Rastafarians or members of other religious groups' ... and that [the rules] were `rationally related to the division's legitimate interests in public safety, discipline and esprit de corps.'" Id. at 381 (quoting district court) (internal citations omitted). The Fourth Circuit recognized that the policy "does not discriminate on its face[,].. is applicable to all uniformed correctional staff of the Division, regardless of race or religious affiliation[, and] [t]here is no evidence that the Division developed the policy to regulate or prohibit religious activities, including Booth's practice of Rastafarianism...." Id. at 381. However, the Fourth Circuit went on to point out why the district court erred in its constitutional conclusion. The court noted as follows:

Id. In the present case, unlike Booth and other cases of comparable distinction, Plaintiff presented no evidence that the JDC policy was applied in a discriminatory manner. That is, Plaintiff failed to present any evidence that exceptions to the "pants-only" policy have been made based on religious reasons for other detention officers.20 For these reasons, the Court concludes that the policy does not infringe upon Plaintiff's free exercise rights, and it passes constitutional muster under Smith.

While Plaintiff never asserts that the standard set forth in Smith does not apply, the Court would nonetheless find the policy at issue here constitutional even if Defendants were required to justify the policy by a compelling governmental interest. See Seabrook, 2000 WL 349276, at *2. Yet, the Court notes that, even if the JDC policy was not facially neutral in regards to religion, numerous courts have retreated from the typical strict scrutiny review to adopt some other less rigorous analytical framework in public employment free exercise cases, recognizing the distinction that "the government as employer [] has far broader powers than does the government as sovereign," enjoying a "freer hand in regulating the speech of its employees than it has in regulating the speech of the public at large." Waters v. Churchill, 511 U.S. 661, 671, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). For example, the Third Circuit has applied an intermediate level of scrutiny — requiring the government action to be substantially related to an important governmental interest — in the public employment context. Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 365-66 n. 7 (3d Cir. 1999); see also Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, 309 F.3d 144, 166 n. 27 (2002) (citing Fraternal Order of Police). Other courts have applied the Pickering balancing test used in public employment free speech jurisprudence. See, e.g., Brown v. Polk County, Iowa, 61 F.3d 650, 658 (8th Cir.1995) (en banc); cert. denied, 516 U.S. 1158, 116 S.Ct. 1042, 134 L.Ed.2d 189 (1996) ("[Pickering] dealt with free speech rather than the free exercise of religion, but because the analogy is such a close one, and because we see no essential relevant differences between those rights, we shall endeavor to apply the principles of Pickering to the case at hand."); Baz v. Walters, 782 F.2d 701, 708 (7th Cir.1986); Shahar v. Bowers, 836 F.Supp. 859, 866 (N.D.Ga.1993), aff'd, 114 F.3d 1097 (11th Cir.1997) (en banc); Shatkin v. Univ. of Texas at Arlington, 2009 WL 614788, at *7 (N.D.Tex.2009); Draper v. Logan Cnty. Public Library, 403 F.Supp.2d 608 (W.D.Ky.2005).

A Pickering-like balancing test has also been used in several other employment contexts, including situations involving the right of expressive association, see Hatcher v. Board of Public Education, 809 F.2d 1546, 1559 (11th Cir.1987); the right of intimate association, see Shahar v. Bowers, 114 F.3d 1097, 1103 (11th Cir.1997) (en banc); the right to petition, see White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir.1993); and Fourteenth Amendment privacy rights, see Fyfe v. Curlee, 902 F.2d 401, 405 (5th Cir.1990); Stough v. Crenshaw County Board of Education, 744 F.2d 1479, 1481 (11th Cir.1984). As the court in Draper noted, "[t]his varied application reveals that the government's role as an employer transcends many specific areas of constitutional jurisprudence to categorically lower the government's burden in cases challenging its actions as an employer." 403 F.Supp.2d at 623. Similarly, while the Supreme Court has never explicitly addressed the level of scrutiny applicable to governmental regulation of employee free expression, the Court has applied a less rigorous test to a religion-neutral military dress regulation challenged on free exercise grounds. See Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986).

In Goldman, an Air Force officer challenged a military regulation that, by forbidding headgear from being worn indoors with the military uniform, prohibited him from wearing a yarmulke while in uniform. Id. at 505, 106 S.Ct. 1310. The Court, based upon the tenet that judicial "review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society," opined that "courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest." Id. at 507, 106 S.Ct. 1310. It then gave such deference to the "considered professional judgment" of the Air Force that uniformity in military uniforms and eliminating individual distinctions except for military rank were vital to troop obedience, unity, commitment, discipline, and esprit de corps. Id. While not directly on point, the Goldman holding lends further support to the premise that a more relaxed free exercise measurement is likely appropriate when the government regulates conduct not of its citizens as a sovereign, but of its employees as an employer.

As noted above, even if an analysis such as the Pickering balancing test21 applied to this action, JDC's uniform policy would still survive constitutional muster. In Daniels, the Fifth Circuit held that a police officer's act of wearing a small gold cross pin on his uniform, even if it could be construed as speech involving public concern, could not survive the Pickering balancing analysis. 246 F.3d at 504. The Daniels court based its decision on the unique need for impartiality and uniformity in law enforcement officers and the facially-neutral prohibition on wearing decorations on a police uniform shirt. Here, the concern is even greater than in Daniels. Not only does the "pants-only" policy raise concerns of impartiality and uniformity,22 but it is also neutral, generally applicable, and serves to maintain JDC's interest in safety and security.23 More specifically, Defendants presented evidence of a legitimate and critical concern that an officer in a skirt would be unable to properly perform certain defensive or restraint maneuvers which are taught to detention officers and would hinder the ability to chase a feeling detainee.24 Given this, the Court concludes that, even if a stricter standard was applied in this action, the Plaintiff's free exercise challenge would still fail. Accordingly, Defendants are entitled to summary judgment as to this claim.

C. Gender Discrimination Under Title VII

Under Title VII, it is "an unlawful employment practice for an employer ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Plaintiff contends that she was discriminated based on her gender under Title VII due to the JDC uniform policy. According to Plaintiff, the policy is discriminatory because males are permitted to wear their "traditional" garb (i.e., pants), yet females are prohibited from wearing their "traditional" garb (i.e., dresses/skirts). Plaintiff does not seek to prove her case with direct evidence, instead presenting alleged circumstantial evidence and analyzing her claim under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Under the McDonnell Douglas standard, Plaintiff must first establish a prima facie case of discrimination by establishing (1) that she was a member of a protected group; (2) qualified for the position she held; (3) that she suffered an adverse employment decision; and (4) was either replaced by someone outside the protected group or treated less favorably than employees not in the protected group. Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 513 (5th Cir.2001). Proof of disparate treatment can establish the fourth element of the plaintiff's prima facie case. See Bryant v. Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir.2005).

Once a plaintiff has made her prima facie case, the defendant then has the burden of producing a legitimate, nondiscriminatory motive for the adverse employment action. Parker v. State of La. Dep't of Educ. Special Sch. Dist., 323 Fed.Appx. 321, 327 (5th Cir.2009). The defendant's burden at this stage is merely one of production-not persuasion. Id.

If the defendant can articulate a reason that, if believed, would support a finding that the action was nondiscriminatory, then the inference of discrimination created by the plaintiff's prima facie case disappears, and the factfinder must decide the ultimate question of whether the plaintiff has proven intentional discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511-12, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The plaintiff must present substantial evidence that the employer's proffered reason is a pretext for discrimination. Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir.2003). To show pretext on summary judgment, "the plaintiff must substantiate his claim of pretext through evidence demonstrating that discrimination lay at the heart of the employer's decision." Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir.2002).

Pretext may be established "either through evidence of disparate treatment or by showing that the employer's proffered explanation is false or `unworthy of credence.'" Laxton, 333 F.3d at 578 (quoting Reeves, 530 U.S. at 143, 120 S.Ct. 2097). "To raise an inference of discrimination, the plaintiff may compare his treatment to that of nearly identical, similarly situated individuals." Bryant v. Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir.2005). To establish disparate treatment, however, a plaintiff must show that the employer gave preferential treatment to another employee under "nearly identical" circumstances. Id. Alternatively, "[a]n explanation is false or unworthy of credence if it is not the real reason for the adverse employment action." Laxton, 333 F.3d at 578.

In contrast, the Fifth Circuit has modified the McDonnell Douglas formulation to permit proof that discrimination was one motivating factor among others for an adverse employment action. See generally Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir.2004). At one time, the Fifth Circuit required that a plaintiff present direct evidence of discrimination in order to receive the benefit of a mixed-motive analysis. See Fierros v. Tex. Dep't of Health, 274 F.3d 187, 191 (5th Cir.2001). However, the Supreme Court in Desert Palace, Inc. v. Costa held that Congress's failure to require a heightened burden of proof suggested that courts should not depart from the general rule of civil litigation that "requires a plaintiff to prove his case `by a preponderance of the evidence,' using `direct or circumstantial evidence.'" 539 U.S. 90, 99, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (quoting Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 n. 3, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)). Therefore, a plaintiff asserting a Title VII discrimination claim may utilize the mixed-motive analysis whether she has presented direct or circumstantial evidence of discrimination. Id. at 101, 123 S.Ct. 2148; Smith v. Xerox Corp., 602 F.3d 320, 327-28 (5th Cir.2010).

At the outset, the Court notes that the parties' views diverge with regard to what is needed to make a prima facie case of gender discrimination as applied to this action. Plaintiff, at times, appears to only focus on the particular mandates of the uniform policy, asserting that it itself is discriminatory because female detention officers are required to wear traditional male attire (pants) as opposed to traditional female attire (skirts).25 Defendants, on the other hand, contend that Plaintiff has "veered from the correct path of analysis" by focusing on the policy. According to Defendants, "the issue for the prima facie case is whether the plaintiff was treated less favorably than males with respect to the termination decision," as opposed to the policy. Because both the policy and the termination could (of course) be discriminatory, the Court analyzes all arguments, as well as any way Defendants' actions and policies could infringe upon Plaintiff's rights.

The Termination Decision

As to the termination decision, Plaintiff cannot demonstrate a violation of Title VII. Plaintiff is undisputedly a qualified female who suffered an adverse employment decision. However, Plaintiff cannot meet the fourth prong of a prima facie case. That is, she cannot show she was replaced by someone outside her protected class, or that she was treated less favorably than other employees with regards to Defendants' decision to terminate Plaintiff's employment. In fact, Plaintiff does not even attempt to do so, instead stating that she was treated less favorably because she was required to wear traditional male attire. While the Court addresses Plaintiff's argument concerning any gender-motivated discriminatory animus in the adoption of the uniform policy below, the analysis required to show gender discrimination in the termination decision is to show that Plaintiff, as a female, was treated less favorably than other employees with respect to the actual termination. There is no evidence that any males, or even any other females, were not terminated for refusing to comply with the tenets of the JDC policy. In other words, there is no evidence that another employee was treated more favorably than Plaintiff for engaging in similar conduct, and Plaintiff appears to concede that she was not replaced with someone outside of her protected class. Additionally, Plaintiff presents no other existing evidence raising an inference of discrimination with respect to her termination and, as such, Plaintiff has failed to establish a prima facie case of discrimination.

Nevertheless, because the required prima facie showing is a "flexible evidentiary standard" that was "never intended to be rigid, mechanized, or ritualistic," see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), the Court analyzes the remainder of the analytical framework set forth in McDonnell Douglas. Once the plaintiff has met its prima facie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its decision. Here, Defendants' legitimate, nondiscriminatory reason for terminating Plaintiff's employment is that Plaintiff refused to follow the JDC uniform policy.26 This articulated reason satisfies Defendants' burden of production.

The burden, therefore, shifts back to Plaintiff to prove either that this proffered reason is pretext for discrimination or that Plaintiff's protected characteristic was a motivating factor for the decision. Plaintiff fails to meet such a burden. In fact, because Plaintiff focuses on "safety and security," as opposed to Defendants' actual articulated reason of failure to comply with the policy, Plaintiff's brief strays from the proper analysis. The governing standard here is whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred. See Reeves, 530 U.S. at 150, 120 S.Ct. 2097. Factors to be considered "`include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation [for the adverse employment action] is false, and any other evidence that supports [or undermines] the employer's case.'" James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir.2000) (quoting Reeves, 530 U.S. at 148-49, 120 S.Ct. 2097). Here, there is simply no evidence anywhere in the record that could support an inference of gender discrimination with respect to Defendants' decision to terminate Plaintiff.

The Uniform Policy

The majority of Plaintiff's claim appears to focus solely on the uniform policy itself. The policy requires both males and females to wear pants. It is important to note that Plaintiff's only argument is that the policy denies females the right to wear "traditional garb" in the form of a skirt.27 Thus, the policy — unlike most cases brought alleging discrimination based on uniform policies — does not differentiate between males and females. The Court is unaware of any case where a policy that deprives a gender from wearing what he or she defines as "traditional" attire has been held per se discriminatory.28 In fact, even uniform policies and/or grooming standards that vary between genders have been routinely upheld by courts.29

The state of the law governing sex-based "grooming standards" was aptly summarized by the Eighth Circuit in Knott v. Missouri Pac. Ry. Co., 527 F.2d 1249, 1252 (8th Cir.1975), where the court held that "minor differences in personal appearance regulations that reflect customary modes of grooming do not constitute sex discrimination within the meaning of § 2000e-2." Title VII "was never intended to interfere in the promulgation and enforcement of personal appearance regulations by private employers." Id. at 1251-52. The rationale for this conclusion is that if such policies are not designed as a pretext to exclude either sex from employment, slight differences in grooming standards have "only a negligible effect on employment opportunities." Id.

In a series of cases similar to Knott, other courts addressing this question have arrived at a similar result. See, e.g., Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084 (5th Cir.1975) (concluding that a grooming policy concerning hair length differences for males and females did not constitute sex discrimination and noting that such a policy relates "more closely to the employer's choice of how to run his business than to equality of employment opportunity"); Jespersen v. Harrah's Operating Co., Inc., 444 F.3d 1104, 1109-10 (9th Cir.2006) (en banc) (holding that Harrah's grooming standards requiring women to wear makeup and styled hair and men to dress conservatively was not discriminatory because the policy did not impose unequal burdens on either sex); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 875 n. 7 (9th Cir.2001) (explaining that reasonable regulations concerning dress and grooming standards do not necessarily constitute actionable discrimination under Title VII); Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir.1998) (grooming policy prohibiting men, but not women, from wearing long hair does not violate Title VII); Bellissimo v. Westinghouse Electric Corp., 764 F.2d 175 (3d Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1244, 89 L.Ed.2d 353 (1986) (dress codes permissible although specific requirements for males and females may differ); Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir.1977) (a different hair grooming standard for men than for women does not give rise to a Title VII claim); Fountain v. Safeway Stores, Inc., 555 F.2d 753, 755 (9th Cir.1977) ("regulations promulgated by employers which require male employees to conform to different grooming and dress standards than female employees is not discrimination within the meaning of Title VII"); Earwood v. Continental Southeastern Lines, Inc., 539 F.2d 1349 (4th Cir.1976) (sex-differentiated grooming regulation not used as pretext to exclude either sex from employment is not within Title VII's purview); Fagan v. National Cash Register Co., 481 F.2d 1115 (D.C.Cir.1973) (distinction between sexes vis-à-vis grooming standards does not constitute Title VII violation);30 Capaldo v. Pan American, 1987 WL 9687, at *2 (E.D.N.Y. Mar. 30, 1987) (holding that terminating a male employee for refusing to remove an earring does not state a claim for sex discrimination);

The "pants-only" dress code here applies to all employees equally; it does not single out males or females. Thus, it stands in stark contrast to cases where a violation of Title VII has been found due to a dress code policy distinguishing between male and female attire with respect to uniform regulations. See Carroll v. Talman Fed. Sav. And Loan Ass'n of Chicago, 604 F.2d 1028, 1031 (7th Cir.1979). In Carroll, a bank required its female tellers, officer and managerial employees to wear a uniform while male employees working in the same positions were required only to wear customary business attire. The employer expressly maintained that the purpose of the uniform requirement was to reduce fashion competition among women. Id. at 1031. Since men (apparently) do not engage in such competition, they do not need a uniform requirement. Id. The Seventh Circuit held that personal appearance regulations with differing requirements for men and women do not violate Title VII as long as there is "some justification in commonly accepted social norms and are reasonably related to the employer's business needs." Id. at 1032. However, an employer who imposes separate dress requirements for men and women performing the same jobs will violate Title VII when one sex can wear regular business attire and the other must wear a uniform. Id. Finding the uniform requirement demeaning to women, the Carroll court stated: "[w]hile there is nothing offensive about uniforms per se, when some employees are uniformed and others are not there is a natural tendency to assume that the uniformed women have lesser professional status than their colleagues attired in normal business clothes." Id. at 1033. Here, unlike Carroll, the uniform policy is applied even-handily; thus, it is valid under Title VII unless Plaintiff can further present sufficient evidence from which a rational jury could infer intentional discrimination. See, e.g., Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1224-27 (10th Cir. 2007) (noting that employers cannot shield discrimination behind a presumably valid dress code and/or grooming policy).

The same McDonnell Douglas analysis as discussed above is equally applicable to Plaintiff's claim based on gender discrimination in the uniform policy. Plaintiff cannot meet the fourth prong of a prima facie case. The uniform policy applies evenly to all detention officers, and Plaintiff's only allegation is that the uniform policy prohibited her from wearing traditional female apparel. Plaintiff does not allege that she was replaced by someone outside her protected class, and she cannot otherwise demonstrate that she was treated less favorably than male employees,31 or any other employees, with regards to Defendants' decision to terminate Plaintiff's employment based on her refusal to comply with the "pants-only" requirement.

Yet, in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the Supreme Court decided that sex stereotyping can violate Title VII when it influences employment decisions. In Price Waterhouse, a female senior manager was denied partnership, and partners involved in the decision making had referred to her as "`macho'" and in need of "`a course at charm school[.]'" 490 U.S. at 235, 109 S.Ct. 1775. She was advised that to become a partner she should "`walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.'" Id. The Court found that such stereotypical attitudes violate Title VII if they lead to an adverse employment decision. Id. at 251, 109 S.Ct. 1775; id. at 259, 109 S.Ct. 1775 (White, J., concurring); id. at 272-73, 109 S.Ct. 1775 (O'Connor, J., concurring). The Price Waterhouse plurality's understanding that an employer might escape liability by showing that it would have made the same decision even without a discriminatory motive is no longer permissible because Congress provided otherwise, see 42 U.S.C. § 2000e-2(m), but the Court's conclusion that Title VII prohibits sex stereotyping endures. Other courts have upheld Title VII claims based on sex stereotyping subsequent to Price Waterhouse. See, e.g., Chadwick v. WellPoint, Inc., 561 F.3d 38 (1st Cir.2009); Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir.2004); Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir.2004); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir.2001); Frank v. United Airlines, Inc., 216 F.3d 845, 855 (9th Cir.2000). And, even well before Price Waterhouse, courts had found sex specific impositions on women in customer service jobs illegal. Violations of Title VII occurred where a female lobby attendant was terminated for refusing to wear a sexually provocative uniform, see EEOC v. Sage Realty Corp., 507 F.Supp. 599, 607-608 (S.D.N.Y.1981); where only women employees were compelled to wear uniforms, see Carroll v. Talman Fed. Sav. & Loan Ass'n of Chic., 604 F.2d 1028 (7th Cir.1979); and where only female flight attendants were required to wear contact lenses instead of glasses, see Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763, 790 (D.D.C.1973), aff'd in part, vacated and remanded in part on other grounds, 567 F.2d 429 (D.C.Cir.1976).

As the Sixth Circuit succinctly stated, "[a]fter Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex." Smith, 378 F.3d at 574. Here, however, Plaintiff simply produces no evidence that would allow a factfinder to conclude that the uniform policy is impermissible gender discrimination or proscribed sex stereotyping. Plaintiff has provided no support for the proposition that Defendants' legitimate, nondiscriminatory reason for Plaintiff's termination (.i.e., Plaintiff's refusal to comply with the policy) is either pretext or that Plaintiff's gender was a motivating factor in the decision. Further, the "pants-only" policy applies uniformly to all employees. See Price Waterhouse, 490 U.S. at 240, 109 S.Ct. 1775 (noting that Title VII requires that "gender must be irrelevant to employment decisions") (emphasis added). Thus, Defendants have done the exact opposite of what has generally been considered sex stereotyping that rises to the level of a violation under Title VII.32

However, as discussed supra, some of Plaintiff's arguments sound more like Plaintiff intended to proceed under a disparate impact theory of discrimination, as opposed to disparate treatment. Disparate impact claims are those claims which "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Raytheon v. Hernandez, 540 U.S. 44, 52-53, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003). Unlike a disparate treatment claim, a plaintiff bringing a disparate impact claim need not present evidence of discriminatory intent. Id. at 53, 124 S.Ct. 513. Instead, the plaintiff must present two kinds of evidence to establish a prima facie case. First, the plaintiff must point to the specific employment practice that allegedly has a disparate impact. Second, the plaintiff must demonstrate causation by offering statistical evidence sufficient to show that the challenged practice has resulted in prohibited discrimination. See Hallmark Developers v. Fulton Cnty., 466 F.3d 1276, 1286 (11th Cir.2006). While "no single test controls in measuring disparate impact," the plaintiff must produce some evidence about the population that a policy applies to, some numbers or proportional statistics, in order to survive a motion for summary judgment. Id. Even if Plaintiff had intended to proceed under this theory, she would have failed to met her burden of demonstrating that there is a genuine dispute as to any material fact, as Plaintiff presented no statistical evidence for the Court to even consider. Accordingly, Plaintiff has failed to carry her burden, and Defendants are entitled to summary judgment as to Plaintiff's claim of gender discrimination.

D. Religious Discrimination Under Title VII

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating on the basis of religion. See 42 U.S.C. § 2000e(j) (2000). To establish a prima facie case of religious discrimination, a plaintiff must show that: (1) she has a bona fide religious belief that conflicted with an employment requirement; (2) the employer was informed of that belief; and (3) she was discharged for failing to comply with the conflicting employment requirement. Daniels, 246 F.3d at 506; Bruff v. N. Miss. Health Svcs., Inc., 244 F.3d 495, 499 n. 9 (5th Cir.), cert. denied, 534 U.S. 952, 122 S.Ct. 348, 151 L.Ed.2d 263 (2001). If a plaintiff can make out a prima facie case, the defendant must then show either: (1) that it offered the plaintiff a reasonable accommodation, or (2) that accommodating plaintiff would subject the defendant to undue hardship. Bruff, 244 F.3d at 500; see also 42 U.S.C. § 2000e(j) (2000) (providing a defense if an "employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business").

It is undisputed that Plaintiff can meet a prima facie case of religious discrimination: she holds a bona fide religious belief, her employer knew of this belief, and she was terminated for refusing to comply with the JDC uniform policy. Thus, the burden shifts to Defendants to come forward with evidence that it offered a reasonable accommodation, or that accommodating Plaintiff would cause undue hardship. In this instance, Defendants proceed under the theory that accommodating Plaintiff would cause undue hardship. An undue hardship exists when an employer incurs anything more than a de minimus cost to accommodate an employee's beliefs.33 See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977); see also Bruff, 244 F.3d at 500. "Both economic and non-economic costs can pose an undue hardship upon employers...." Webb v. City of Philadelphia, 562 F.3d 256, 260 (3d Cir.2009) (citing Hardison, 432 U.S. at 84, 97 S.Ct. 2264).34 Here, Plaintiff wishes to be able to wear a skirt (which is a tenet of her Pentecostal faith), as opposed to pants, while working as a juvenile detention officer. Defendants contend that accommodating Plaintiff's religious beliefs by granting her an exemption from the "no skirts" policy would create a risk to safety and security in the JDC.

In August 2010, the Third Circuit in EEOC v. The GEO Group, Inc., 616 F.3d 265 (3d Cir.2010) held it would be an undue hardship for The GEO Group, Inc. ("GEO"), a private company that was contracted to run a prison, to allow its practicing Muslim employees to wear a khimar35 as an exception to its non-headgear policy. The court reasoned that khimars, like hats, could have been used to smuggle contraband into and around the prison, conceal the identity of the wearer, and/or be used against prison employees in an attack. Additionally, it was noted that accommodating the employees would have necessarily required additional time and resources of prison officials. Thus, the court concluded that the safety and security concerns created an undue hardship as a matter of law. Id. at 275-77. The court in GEO Group relied on the prior Third Circuit holding in Webb v. City of Philadelphia. There, the Third Circuit held that the city would suffer undue hardship under Title VII if forced to permit police officers to wear religious clothing or ornamentation with their uniforms. 562 F.3d at 260-62. The court noted that "safety is undoubtedly an interest of the greatest importance to the police department and that uniform requirements are crucial to the safety of officers...." Id. at 262 (internal quotations and citation omitted).

"[S]afety considerations are highly relevant in determining whether a proposed accommodation would produce an undue hardship on the employer's business. Title VII does not require that safety be subordinated to the religious beliefs of an employee." Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 521 (6th Cir. 1975); see also, e.g., EEOC v. Kelly Services, Inc., 598 F.3d 1022 (8th Cir.2010); Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382, 1384 (9th Cir.1984); Kalsi v. New York City Transit Auth., 62 F.Supp.2d 745 (E.D.N.Y.1998), aff'd mem., 189 F.3d 461 (2d Cir.1999). This line of cases makes clear that an employer can be subjected to an undue hardship if the accommodation would create any significant safety, or even legal, risks. For example, in Bhatia, the Ninth Circuit affirmed summary judgment for an employer that required machinists whose duties involved potential exposure to toxic gas to shave any facial hair that prevented them from achieving a gas-tight seal when wearing a respirator. 734 F.2d 1382. All machinists were required to comply with the policy even though machinists sometimes were assigned to jobs that did not require the use of a respirator. Id. at 1383. Because assignments were unpredictable, the employer required all machinists to be able to use a respirator safely. Id. The plaintiff had worked as a machinist since before the policy against facial hair had taken effect. For religious reasons, the plaintiff did not shave. He was suspended without pay and then placed in a lower-paying job that did not expose him to gas.

The Ninth Circuit held that allowing the plaintiff to work as a machinist on assignments where he would be exposed to gas would be an undue hardship because the employer "would risk liability" under California occupational safety standards. 734 F.2d at 1384. In addition, retaining the plaintiff as machinist and assigning him only to assignments that did not involve exposure to toxic gas would impose two undue hardships on the employer. First, the employer would have to revamp its unpredictable system of work assignments. Second, the employer would have to require the plaintiff's co-workers to perform his share of dangerous work. Id. Affirming summary judgment for the employer, the court concluded that "Title VII does not require Chevron to go that far." Id. The Ninth Circuit did not require the employer to prove that the accommodation would actually violate state laws or cause injury; the increased risks were sufficient.

Relying in part on Bhatia, another court conducted a similar analysis and reached a similar conclusion in a case involving an employer's hard hat policy. Kalsi, 62 F.Supp.2d 745, aff'd mem., 189 F.3d 461 (2d Cir.1999) (affirming "for substantially the reasons stated by the district court"). In Kalsi, the plaintiff's religious beliefs required him to wear a turban at all times. He was hired as a subway car inspector. The New York Transit Authority required all inspectors to wear hard hats, and it fired the plaintiff because he would not wear one. The court granted summary judgment for the employer on undue hardship grounds. The plaintiff argued that he should be allowed to perform his job (with some modifications) without a hard hat, and even his occupational safety expert opined that his position should not have required a hard hat. Id. at 759.36 The plaintiff proposed that he work only inside subway cars, where there is less risk of head injury, and that he take unpaid breaks if his assigned team was performing tasks for which the employer considered hard hats most necessary. Id. at 759. The plaintiff's expert acknowledged that accommodating the plaintiff in this manner would increase his risk of head injury. He opined, however, that if plaintiff wore a turban, he would be unlikely to experience a "catastrophic" injury. Id. at 759-60. The expert also made several suggestions for how workplace hazards could be avoided so that hard hats would be unnecessary.

Rejecting the plaintiff's arguments, the court reasoned: "Title VII does not require employers to absorb the cost of all less than catastrophic physical injuries to their employees in order to accommodate religious practices." Id. at 760. The risks inherent in the proposed accommodation were not limited only to the increased risk of personal injury to plaintiff. They also included the risk of injury to plaintiff's co-workers who might be called on to rescue him or who might become hurt if he were incapacitated. Id.37 The court rejected plaintiff's expert's suggestions about possible modifications to the work environment because those modifications would have involved more than a de minimis cost. Id.

Similarly, in EEOC v. Oak-Rite Mfg. Corp., 2001 WL 1168156 (S.D.Ind. Aug. 27, 2001), the court was presented with a conflict between the religious beliefs of a job applicant similar to the Plaintiff's beliefs in this action and an employer's safety policies. For safety reasons, the defendant required employees to wear long pants in its metal-working factory. The EEOC sued the defendant on behalf of the job applicant whose religion required her to wear modest skirts and dresses, as opposed to pants. The EEOC claimed that the employer violated Title VII's proscription against religious discrimination because the employer failed to accommodate the job applicant by allowing her to wear a long skirt to work in the factory. The defendant employer moved for summary judgment, and the court granted the motion, finding as follows:

Id., at *1. Along the same lines, an earlier unsuccessful EEOC action to a pants-only policy came in EEOC v. Heil-Quaker Corp., 1990 WL 58543 (M.D.Tenn. Jan. 29, 1990), where the court ruled for the employer after trial. There, the court held that "[t]he employer is not required to pursue accommodations when the employee's belief is inherently inconsistent with the employer's reasonable practice." Id. The experts in that case testified that a pants-only policy is uniform and that skirts and dresses are inherently more hazardous than pants. Id. The court noted that increased safety hazards and a corresponding increase risk of liability "are all justification[s] recognized by the [c]ourt as being undue hardships." Id.38

Here, as discussed under the Court's analysis of Plaintiff's free exercise claim, Defendants submitted deposition testimony, as well as an expert report, of the legitimate safety concerns presented from wearing a skirt as a juvenile detention officer in the JDC. The safety and security concerns include the ability of an officer to perform certain defense-tactic maneuvers, such as the "hip drill retreat" and the "bridge and roll." Specifically, the ability to perform these maneuvers would be impaired because "of the likelihood that the assailant could pin the material of the skirt to the floor with his knees, preventing the officer from moving her body in the way necessary to perform the maneuvers, or because it would hinder the officer's freedom to move her legs in the way necessary to perform the maneuver." Similarly, an expert report provided that a skirt would potentially interfere with an officer's ability to perform the "Hook and Drive Take Down," which is used "once the officer has back control of the attacker and needs to take them down to the ground because they are still not in compliance," as well as the "bicycle hook." The expert report goes on to detail several more maneuvers, and notes that the "issues of safety and security are not significantly lessened in a juvenile detention facility[, as] [j]uveniles are capable of injuring officers and other detainees and attempting to escape in the same manner as adults."

This report is supported by the deposition testimony of Tim Erickson, who is the school resource officer and part of the training staff at the Lee County Sheriff's Department. Moreover, Plaintiff testified as follows:

Further, Defendants presented several "jailer's statements" concerning incidents that had occurred between officers and juveniles that support Defendants' reliance on safety and security as legitimate concerns. In contrast, the only evidence presented by Plaintiff to counter Defendants' evidence concerning safety and security is her unsupported, subjective belief that she might be able to do some of the same maneuvers. For example, Plaintiff testified as follows:

However, Defendants' expert asserted that, in contrast to Plaintiff's deposition testimony, "there are no alternatives to the bicycle kick in the SSGT training."39

The Defendants have presented competent, summary judgment evidence that a skirt like Plaintiff's would indeed cause risks of respect to safety and security at the JDC. Furthermore, to carry a burden of showing undue hardship, Defendants do not even need to prove that a skirt has — for example, in the past — actually caused such safety and security problems. Instead, the Defendants must show safety and security risks. For example, in Favero v. Huntsville Ind. Sch. Dist., 939 F.Supp. 1281 (S.D.Tex.1996), aff'd mem., 110 F.3d 793 (5th Cir.1997), several school bus drivers claimed a school district failed to accommodate their religious holidays by allowing time off. The school district argued that accommodation would cause an undue hardship because it could not cover all the bus routes. The drivers argued that delays caused by "doubling up" on routes could not be an undue hardship because such delays occurred for other reasons. The district court rejected that argument and granted summary judgment for the school district:

Id. at 1293. The Fifth Circuit affirmed. While the Court here is sympathetic to Plaintiff's plight, given the safety and security concerns presented in the record, the Court concludes that requiring Defendants to offer Plaintiff an exemption to the "no skirts" policy would impose an undue hardship as a matter of law.40

Yet, even another concern is present in this action in addition the safety and security concerns already discussed. In Kelley v. Johnson, the Supreme Court characterized a police department's "[c]hoice of organization, dress, and equipment for law enforcement personnel ... [as] a decision entitled to the same sort of presumption of legislative validity as are state choices designed to promote other aims within the cognizance of the State's police power." 425 U.S. at 247, 96 S.Ct. 1440. Almost ten years later, in Goldman v. Weinberger, the Court stated that the "desirability of dress regulations in the military is decided by the appropriate military officials." 475 U.S. at 509, 106 S.Ct. 1310. The Court also found "the traditional outfitting of personnel in standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group mission." Id. at 508, 106 S.Ct. 1310.41 Relying on the principles from these two cases, the Third Circuit in Webb, facing an issue similar to the ones presented in the case sub judice, concluded that the city would suffer undue hardship under Title VII if it was forced to permit police officers to wear religious clothing or ornamentation with their uniforms. 562 F.3d at 260-62. The Webb court relied, in part, on the Fifth Circuit's decision in Daniels v. City of Arlington, 246 F.3d 500, 506 (5th Cir.2001). In Daniels, the Fifth Circuit found the city's no-pins uniform policy applicable to police officers was not only proper, but also that the city was unable to reasonably accommodate the officer's religious needs without undue hardship. The Fifth Circuit noted that "[a] police department cannot be forced to let individual officers add religious symbols to their official uniforms." Id.; see also, e.g., Rodriguez v. City of Chicago, 156 F.3d 771, 779 (7th Cir.1998) (Posner, C.J., concurring) ("The importance of public confidence in the neutrality of its protectors is so great that a police department or a fire department ... should be able to plead `undue hardship'...."); Paulos v. Breier, 507 F.2d 1383, 1386 (7th Cir.1974) (recognizing and protecting the interest of municipality in preserving nonpartisan police force and appearance thereof). While, here, the uniform policy concerns detention officers in the juvenile detention center, as opposed to the police force, the rationale is at least still applicable, see Communications Workers of America v. Ector County Hospital District, 467 F.3d 427, 439-40 (5th Cir.2006) ("That uniforms may be more important in law enforcement than in other fields clearly does not mean that other employers have no interest in requiring them ... There is no reason to believe that a uniform requirement will not have somewhat similar efficiency enhancing effects in the non-law enforcement context, as is clearly attested by the presence of uniforms in so many non-law enforcement occupations, e.g., postal employees, bus drivers, flight attendants, United Parcel Service personnel and a host of others."), and it certainly is supportive of the fact that allowing an exception to the "pants-only" policy would amount to undue hardship.

Plaintiff additionally contends that she should have been reasonably accommodated by being allowed to transfer to another position within the JDC; more specifically, a position that allowed her to wear a skirt. However, according to Defendants, there were not any administrative, clerical, or other officer positions, in which Plaintiff could wear a skirt, available at the time of Plaintiff's termination. Defendants attached to their supplemental motion for summary judgment the declaration of Kamisha McKinnon, who is the administrative assistant to Sheriff Johnson. McKinnon asserts that she has access to and knowledge concerning the records of the sheriff's department and the administrative personnel of the department. McKinnon declares that according to the records and her personal knowledge of the investigation, "there were no vacancies in administrative/office/clerical positions in the sheriff's department from September 2008 through April 2009. The minimum educational qualification for those positions is a high-school diploma or GED certificate. Also, there was no vacancy in the teacher position at the JDC during that time period." Plaintiff, who lacked a GED at the time in which she worked for JDC,42 was not qualified for the positions which would allow her to wear a skirt. Further, Defendants' testimony concerning the positions available and qualification standards remains uncontested. After Defendants filed two supplemental motions for summary judgment, providing more evidentiary support for their original summary judgment motion, Plaintiff requested an extension of time to respond to Defendants' motions and the evidence presented therein [72], which the Court granted. However, Plaintiff entirely failed to respond to such supplemental motions. Thus, not only is there competent, uncontested, summary judgment evidence before the Court asserting that no were positions available, but such evidence also establishes qualification standards for such positions — standards that Plaintiff did not meet. In Brener v. Diagnostic Center Hospital, 671 F.2d 141, 146 (5th Cir.1982), the Fifth Circuit held that hiring a substitute employee in order to permit the plaintiff to observe the Sabbath "plainly would involve a more than de minimis cost." Similarly, in Bruff v. North Mississippi Health Services, 244 F.3d 495 (5th Cir. 2001), the court found that an accommodation would result in undue hardship because it would require other employees to assume disproportionate workloads. The court further noted that an employer need not actually incur costs before claiming that an accommodation would result in costs that are more than de minimus. Id. at 501; see also Weber v. Roadway Express, Inc., 199 F.3d 270, 274 (5th Cir. 2000) ("The mere possibility of an adverse impact on co-workers ... is sufficient to constitute an undue hardship."); Eversley v. MBank Dallas, 843 F.2d 172, 176 (5th Cir.1988) (determining it would be an undue hardship on an employer to require employees to switch shifts). Along the same lines, "[i]t would be anomalous to conclude that by `reasonable accommodation' Congress meant that an employer must deny [the rights] of some employees in order to accommodate or prefer the religious needs of others, and we conclude that Title VII does not require an employer to go that far." Hardison, 432 U.S. at 81, 97 S.Ct. 2264. In other words, an employer cannot give preference to an employee because of his or her religion any more than it can discriminate against that employee for the same reason. It is axiomatic that preferential treatment involves discriminating against one in favor of another which, in the context of religion, is exactly the conduct proscribed by Title VII. See Bruff, 244 F.3d at 503. Accordingly, Defendants' uncontroverted evidence suffices to show undue hardship.

While Plaintiff does not analyze her claim under the "traditional" McDonnell Douglas analytical framework for discrimination cases, the Court nonetheless notes that, even if Plaintiff had, there is no evidence in the record that Defendants' safety-driven dress policy is pretext (or a motivating factor) for discrimination against religious employees, or employees requiring religious accommodation. See EEOC v. Kelly Services, Inc., 598 F.3d 1022 (8th Cir.2010) (finding no evidence of pretext in a case where the EEOC brought suit against a temporary employment agency alleging it discriminated against a female Muslim temporary worker by failing to refer her to a commercial printing company for employment because that company had a dress policy prohibiting headware and loose-fitting clothing and the worker had refused to remove her khimar for work). The policy here is a facially-neutral requirement, applying to each employee equally. Further, this case is distinguishable from cases such as the Third Circuit's opinion in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366 (3d Cir.1999). In that case, the Third Circuit focused on the lack of neutrality in applying a "no-beards" regulation. Specifically, as the court explained, "the Department's decision to provide medical exemptions while refusing religious exemptions is sufficiently suggestive of discriminatory intent." Id. at 365. Unlike Fraternal Order of Police, the policy at JDC contains no such exceptions, nor is there evidence that other officers are allowed to deviate from the policy. Yet, Plaintiff does assert that Sheriff Johnson allows detention officers to wear skirts while escorting prisoners to court. Thus, according to Plaintiff, this weakens Defendants' rationale for the "pants-only" uniform policy. However, Plaintiff's assertion is flawed and not supported by the record. Sheriff Johnson testified in his deposition — which remains uncontroverted — as follows:

Plaintiff also assert that Sheriff Johnson "admitted that Finnie was fired because of her religion...." Plaintiff bases this assertion on a transcript of the audio recording of the meeting prepared by counsel for the respective parties. Plaintiff's counsel asserts that the transcript states as follows:

Defendants, on the other hand, assert that Plaintiff's version of the transcribed termination meeting is inaccurate.43 Specifically, Defendants assert that "[t]he transcript makes it appear that Ms. Finnie asked a question — `Because it's my religion?' (supposedly inquiring if her religion was the reason for her termination) which was followed by Sheriff Johnson's statement...." According to Defendants, Plaintiff leaves out certain pauses, words, and "fillers," and the transcript, in its correct form, "shows undisputably [sic] that Ms. Finnie was not asking a question, but rather, in response to Sheriff Johnson's statement that she had refused to follow the dress code `for whatever reason,' was making a declarative statement that the reason she refused to follow the uniform policy was because of her religious beliefs." Defendants' transcript of the termination meeting is as follows:

In either version of the transcript, Sheriff Johnson never actually mentions Plaintiff's religion.44 It is Plaintiff herself that refers to her religious beliefs. That is, Plaintiff is the declarant of the statement concerning her religion, not Sheriff Johnson, and there is no evidence anywhere in the record that he "admitted" her religion was the reason, or even a reason, she was being terminated.45 Further, as noted above, Plaintiff never analyzes her claim under the McDonnell Douglas framework, nor does she ever assert — much less prove — that Defendants' decision to terminate Plaintiff was "pretext" for religious discrimination, or that religion was a "motivating factor" in the decision. Instead, Plaintiff focuses solely on Defendants' failure to reasonably accommodate Plaintiff. But, the Court has already held that such reasonable accommodation would cause Defendants an undue hardship as a matter of law. As such, for all of the reasons discussed above, Plaintiff's claim for religious discrimination under Title VII fails, and Defendants are entitled to summary judgment as to this claim.

E. Retaliation Under Title VII

Plaintiff next alleges that her termination was retaliation for the filing of her March 2009 EEOC charge. Before the Court turns to the merits of Plaintiff's retaliation claim, it first addresses a concern raised by Defendants in their opposition to Plaintiff's motion to amend her complaint, yet not addressed in their summary judgment motions, concerning exhaustion of administrative remedies.

It is undisputed that Plaintiff did not file an EEOC charge as to her retaliation claim. Instead, Plaintiff's EEOC charge only alleged gender and religious discrimination. However, Plaintiff's termination — and her evidence supporting her retaliation claim — occurred after her initial EEOC charge was filed. In Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir.1981), the plaintiff, Gupta, brought a Title VII suit alleging that his former employer discriminated against him on the basis of national origin and religion. Id. at 412. Gupta filed an EEOC charge complaining of the discrimination on July 9, 1975. Id. Later, in February of 1976, Gupta filed a second charge with the EEOC, alleging various acts of retaliation that resulted from his first charge. Id. at 413. After he filed this second charge, Gupta's employer notified him that his contract would not be renewed for the following year. Id. Gupta never filed a third charge with the EEOC complaining that his employer had discharged him in retaliation for his two charges with the EEOC. The court therefore questioned its jurisdiction over the retaliatory discharge issue since "the filing of an administrative complaint is a jurisdictional prerequisite to bringing suit under Title VII." Id.

The Gupta court, however, found that it did have jurisdiction to hear the retaliatory-discharge claim despite the absence of a third charge with the EEOC. Id. at 414. It reasoned that "[i]t is the nature of retaliation claims that they arise after the filing of the EEOC charge." Id. Thus, "[r]equiring prior resort to the EEOC would mean that two charges would have to be filed in a retaliation case ... [which] would serve no purpose except to create additional procedural technicalities when a single filing would comply with the intent of Title VII." Id. As a result, the court found that it could exercise ancillary jurisdiction over Gupta's retaliatory-discharge claim. Id. Gupta is directly on point in this action.

Some courts, however, have questioned whether Gupta's holding is still valid in light of the Supreme Court decision in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). In Morgan, the Supreme Court held that Title VII plaintiffs could not use a "continuing violation" theory to assert claims that were barred because they were based on employer acts outside the 300-day statutory window for filing an EEOC charge. Id. at 113-14, 122 S.Ct. 2061. After Morgan, "[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable `unlawful employment practice.'" Id. at 114, 122 S.Ct. 2061 Although Morgan involved incidents that took place before the EEOC charge was filed, courts have extended it to exclude any acts that occurred after filing from piggybacking onto an earlier-filed charge. See, e.g., Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir.2003); McKenzie v. St. Tammany Parish School Bd., 2006 WL 2054391, at *2, *3 (E.D.La. Jul. 19, 2006); Prince v. Rice, 453 F.Supp.2d 14, 23-24 (D.D.C.2006); Romero-Ostolaza v. Ridge, 370 F.Supp.2d 139, 148-50 (D.D.C. 2005). Some courts have even gone a step further, holding that administrative remedies must be separately exhausted for claims of retaliation based on an earlier-filed EEOC charge that is already properly before the court. See Prince, 453 F.Supp.2d at 23-24; Romero-Ostolaza, 370 F.Supp.2d at 148-50.

Nevertheless, courts in the Fifth Circuit have continued to apply Gupta after Morgan. See, e.g., Eberle v. Gonzales, 240 Fed.Appx. 622 (5th Cir.2007) (discussing Gupta's rationale and holding); Miller v. Southwestern Bell Telephone Company, 51 Fed.Appx. 928 (5th Cir.2002) (holding that, under Gupta, the plaintiff need not file an additional charge with the EEOC for a retaliation claim "growing out of" his initial charge so long as the retaliation occurs after the filing of the initial charge); Stevenson v. Verizon Wireless LLC, 2009 WL 129466 (N.D.Tex. Jan. 16, 2009) (discussing Morgan, yet still applying Gupta); Cooper v. Wal-Mart Transportation, LLC, 662 F.Supp.2d 757 (S.D.Tex.2009) (same); Lightfoot v. OBIM Fresh Cut Fruit Co., 2008 WL 4449512, at *3 (N.D.Tex. Oct. 2, 2008) (applying Gupta but distinguishing it on the facts); Ocampo v. Laboratory Corp. of America, 2005 WL 2708790, at *7 (W.D.Tex. Sept. 6, 2005) ("Assuming the claims based on the charge of age discrimination are properly before the Court, and given [Gupta], Ocampo was not required to file a second charge of discrimination."); Green v. Louisiana Casino Cruises, Inc., 319 F.Supp.2d 707, 710-11 (M.D.La.2004) (citing Gupta and two later Fifth Circuit cases for the proposition that "a plaintiff is not required to exhaust administrative remedies before seeking review of a retaliation claim that grows out of an earlier EEOC charge"); see also Houston v. Army Fleet Services, LLC, 509 F.Supp.2d 1033 (M.D.Ala.2007) (citing Gupta, which is binding in the Eleventh Circuit as well); White v. Potter, 2007 WL 1330378, at *7 (N.D.Ga. Apr. 30, 2007) (finding Gupta's policy rationale persuasive, recognizing the D.C. District Court's post Morgan opinions as rejecting Gupta's holding, but deciding not to follow the D.C. decisions "given that Gupta is binding precedent in [the Eleventh] Circuit").

While Morgan arguably calls Gupta's holding into question, the Supreme Court did not squarely address the issue presented in Gupta. Morgan merely reemphasized the importance of treating discrete acts separately for the purpose of determining when the time limits for filing a charge with the EEOC expire. Morgan further never addressed the policy considerations Gupta took into account in deciding that a plaintiff need not file a new charge with the EEOC when a new discrete act "grows out" of an act for which the plaintiff has already filed a charge with the EEOC. Gupta, 654 F.2d at 414. Thus, because Defendants' failed to reurge this issue in their summary judgment motion, and until the Supreme Court or Fifth Circuit reassess the holding in Gupta,46 this Court is bound to follow its holding. Therefore, Plaintiff's retaliation claim falls within an exception to the exhaustion requirement, allowing it to proceed.47

The Court now turns its focus to the merits of Plaintiff's retaliation claim. The McDonnell Douglas test is applicable to Title VII unlawful retaliation cases. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir.2000). A plaintiff establishes a prima facie case of retaliation under 42 U.S.C. § 2000e-3(a) by showing that: (1) she engaged in an activity protected by Title VII; (2) she was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. See Stewart v. Mississippi Transp. Comm'n, 586 F.3d 321, 331 (5th Cir.2009).

Once the plaintiff makes out a prima facie case of retaliation, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for the employment action. Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir.2008). To survive summary judgment, plaintiff must then offer evidence that (1) the defendant's reason is not true, but is instead a pretext for retaliation (pretext alternative), or (2) the defendant's reason, though true, is only one of the reasons for its conduct, and another motivating factor is retaliation for the plaintiff engaging in protected activity (mixed-motives alternative). See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir.2004); Smith v. Xerox Corp., 602 F.3d 320, 330-33 (5th Cir.2010).

As background, on March 18, 2009, Plaintiff met with her attorney, who drafted a letter to Sheriff Johnson concerning the "pants-only" uniform policy and Plaintiff's religious beliefs. Sheriff Johnson did not respond to Plaintiff's counsel's letter. On March 19, 2009, Plaintiff filed a charge with the EEOC, alleging gender and religious discrimination. On April 13, 2009, Plaintiff alleges that she met with Steve White, who told her to "just put your pants on and come back to work." Plaintiff informed White that she could not do so due to religious reasons. On April 14, 2009, Plaintiff met with Sheriff Johnson, and her employment was terminated.48

It is undisputed that Plaintiff's filing of an EEOC charge constitutes protected activity under Title VII. The Court also concludes that, in viewing the evidence in the light most favorable to Plaintiff, Plaintiff's April 2009 termination satisfies the second prong of Plaintiff's prima facie retaliation claim.49 Defendants, however, contend that that Plaintiff cannot meet the third prong of a prima facie case: a causal link between the filing of the EEOC charge and the termination. To establish a `causal link' as required by the third prong of the prima facie case, a plaintiff does not have to prove that his protected activity was the sole factor motivating the employer's challenged actions. Gee v. Principi, 289 F.3d 342, 345 (5th Cir.2002). Close timing between an employee's protected activity and an adverse action against the employee may provide the causal connection needed to make out a prima facie case of retaliation. McCoy v. City of Shreveport, 492 F.3d 551, 562 n. 28 (5th Cir.2007); Swanson v. Gen. Srvs. Admin., 110 F.3d 1180, 1188 (5th Cir.1997). However, if the only evidence of a prima facie causal link is "mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action," then "the temporal proximity must be very close." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam) (citations and internal quotation marks omitted) (citing with approval cases holding that three and four-month gaps between an employer's knowledge of a protected activity and an adverse employment action are insufficient and too long, standing alone, to establish a prima facie causal link). Even beyond temporal proximity alone,

Nowlin v. Resolution Trust Corp., 33 F.3d 498, 507-09 (5th Cir.1994). Here, because the Court finds the close timing alone (less than one month) minimally sufficient for purposes of the motion at bar to establish a prima facie case, the Court need not address the other factors discussed in Nowlin.50

After concluding that, for purposes of summary judgment, Plaintiff has presented a prima facie case of retaliation, the burden shifts to Defendants to articulate a legitimate, non-retaliatory reason for the employment action. Defendants' reason for Plaintiff's termination is that Plaintiff failed to comply with the JDC uniform policy. This articulated reason satisfies Defendants' burden of production. As such, in order to survive summary judgment, Plaintiff must offer evidence that (1) the defendant's reason is not true, but is instead a pretext for retaliation (pretext alternative), or (2) the defendant's reason, though true, is only one of the reasons for its conduct, and another motivating factor is retaliation for the plaintiff engaging in protected activity (mixed-motives alternative). According to the Fifth Circuit, "[a] plaintiff can only avoid summary judgment on `but for' causation by demonstrating `a conflict in substantial evidence on this ultimate issue.'" Nunley v. City of Waco, 440 Fed.Appx. 275, 280 (5th Cir.2011) (quoting Hernandez v. Yellow Transp., Inc., 641 F.3d 118, 129 (5th Cir.2011)). Evidence is "substantial" if it is of a quality and weight such that "reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions." Id.

In Nunley, the Fifth Circuit addressed retaliation post-the court's decision in Smith v. Xerox Corp., 602 F.3d 320 (5th Cir.2010), where the court held that the Price Waterhouse "mixed motive" framework applies to Title VII retaliation cases, and a plaintiff may show that a protected activity was a "motivating" or "substantial" factor. The Fifth Circuit in Smith also dispensed with the previous requirement that a plaintiff offer direct evidence of retaliation in order to proceed on the mixed-motive theory. The plaintiff in Nunley, relying on the Smith decision, argued that a Title VII retaliation claim need only offer evidence that retaliation was a factor, i.e., that the City had "mixed motives," and such evidence may be circumstantial. The Fifth Circuit, responding to such an argument, stated as follows:

Nunley, 440 Fed.Appx. at 281-82.51

In an attempt to show a retaliatory motive, Plaintiff here presented, among other things, the transcript of Plaintiff's termination meeting with Sheriff Johnson. As discussed above, there is a dispute concerning portions of the transcribed meeting. Plaintiff's counsel asserts that the transcript states as follows:

Defendants, on the other hand, assert that Plaintiff's version of the transcribed termination meeting is inaccurate.52 Defendants' transcript of the termination meeting is as follows:

In both versions of the transcript, Sheriff Johnson discusses Plaintiff's EEOC charge during a discussion concerning Plaintiff's termination. Unlike Plaintiff's assertions under her religious discrimination claim, here, Sheriff Johnson is the declarant of the statement, and he alludes to the EEOC charge, without questioning from Plaintiff, while explaining to Plaintiff the reasoning behind her termination. That is, Sheriff Johnson is the not only the speaker of the statement concerning Plaintiff's protected activity, but he is the one who actually brings it up while officially terminating Plaintiff's employment. Although this statement does not qualify as direct evidence,53 as Plaintiff at times appears to suggest, viewing the evidence in the light most favorable to Plaintiff, it does qualify as proper circumstantial evidence of a retaliatory motive.54 The statement was made by Sheriff Johnson (the decisionmaker), during the termination meeting, and it was clearly related to the protected activity engaged in by Plaintiff. While a very close call, the Court cannot, at the summary judgment stage, do as Defendants would suggest and weigh evidence and credibility to determine exactly what Sheriff Johnson meant by his comment; instead, what inferences should be drawn from the remark depend on determinations best left to the trier of fact. Accordingly, disputes of material facts exist, and summary judgment is denied as to Plaintiff's retaliation claim.55

CONCLUSION

For the reasons stated above, Defendants' Motions for Summary Judgment are granted in part and denied in part. Defendants' motions are granted with respect to Plaintiff's First Amendment free speech and free exercise claims. The motions are further granted with respect to Plaintiff's Title VII gender and religious discrimination claims. The motions are denied, however, as to Plaintiff's VII retaliation claim.