GLEN H. DAVIDSON, Senior District Judge.
The defendants in this case, the Mississippi Department of Child Protective Services, Jess H. Dickinson, and Misty McCammon, have filed a motion for summary judgment [33]. For the reasons set forth below, the motion is granted.
Mattie Smith is a social worker with the Mississippi Department of Child Protective Services ("CPS") in its Grenada office. Mattie Smith Depo. at 5 [33-1]. On March 17, 2017, Smith and her supervisor, Misty McCammon, went for an after-work dinner. Id. at 15. During their car ride to dinner together, McCammon called her boyfriend on speakerphone. Id. at 17. During their conversation, McCammon and her boyfriend began discussing group sexual activities. Id. at 18-19. Smith did not participate in the conversation but did hear it. Id.
A few days later (the exact date is unknown) Smith and McCammon were having a phone conversation after work. Id. at 20. During this phone call, McCammon's boyfriend, speaking from the background, invited Smith to join in group sex with the couple. Id. Smith refused the invitation. During the call, however, Smith did ask McCammon whether she really participated in group sex. Id. McCammon replied, "I can do a person and see them the next day and act like nothing never [sic] happened." Id. at 20. Smith did not allege any other instances of conversation involving sexual topics. Id. at 21.
Smith, who is black, alleges that after she refused the sexual offer, McCammon, a white female, began retaliating against her. In 2017, Smith received two grievances filed against her by Carnell Farmer and Antonio Bledsoe, two police officers with the Grenada Police Department, who claimed that Smith refused to work a case and was rude to them on a call. Id. at 34-35. These grievances were placed in Smith's personnel file. Id. at 35. Smith alleges that Farmer and McCammon had a private relationship. Id. at 37-39. She further alleged that she believed Grenada police officers followed her at McCammon's direction, although she admitted she had no proof beyond her speculation. Id. at 55. In late April, Smith filed a sexual harassment complaint against McCammon. Smith also alleges that McCammon began transferring "ill-prepared" and unwanted cases from white employees to Smith and other black employees. Id. at 57.
On February 6, 2018, filed a charge of discrimination with the EEOC. The EEOC issued a Right to Sue letter, and Smith filed her complaint within 180 days of her receipt of that letter.
Smith brought this action against the CPS, Commissioner Jess Dickinson in his official capacity, and McCammon in her official and individual capacity, for race discrimination, sex discrimination, and retaliatory discharge. Defendants now move for summary judgment.
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R. Civ. P. 56(a)). The rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548.
The party moving for summary judgment bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record it believes demonstrate the absence of a genuine dispute of material fact. See id. "An issue of fact is material only if `its resolution could affect the outcome of the action.'" Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 877 (5th Cir. 2003) (quoting Wyatt v. Hunt Plywood Co., 297 F.3d 405, 408 (5th Cir. 2002)).
The burden then shifts to the nonmovant to "go beyond the pleadings and by ... affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (internal quotation marks omitted.); Littlefield v. Forney Indep. Sch Dist., 268 F.3d 275, 282 (5th Cir. 2001); Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995). The Court "resolve[s] factual controversies in favor of the nonmoving party, but only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (quoting Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005)). "[T]he nonmoving party `cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.'" Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (quoting Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th Cir. 2007)).
Smith brings claims for 1) race discrimination in violation of Title VII of the Civil Rights Act of 1964; 2) sex discrimination under Title VII; 3) retaliatory discharge in violation of Title VII; 4) race discrimination in violation of 42 U.S.C. § 1981; and 5) retaliatory discharge in violation of § 1981.
At the outset, the Court finds Smith's retaliatory discharge claims under Title VII and § 1981 are entirely without merit. Smith has never been terminated from CPS and still works there to this day. Therefore, the Court grants summary judgment in favor of defendants on those claims.
Smith asserts that Defendants violated Title VII by discriminating against her because of her race and sex. 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).
Smith seeks to impose liability on McCammon in her individual capacity. Individual employees are not liable under Title VII. Foley v. Univ. of Houston Sys., 355 F.3d 333, 340 (5th Cir. 2003). Therefore, summary judgment on Smith's Title VII claims is granted in favor of McCammon.
Smith also brings her Title VII claims against Dickinson and McCammon in their official capacities. A plaintiff cannot maintain a Title VII action against both her employer and one its agents in his or her official capacity. Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999). On Smith's Title VII claims, therefore, the Court grants summary judgment in favor of Dickinson and McCammon in their official capacities.
Smith alleges that CPS racially discriminated against her. She asserts that: (1) she and other black coworkers were assigned more cases or less desirable cases than white employees; (2) she was required to have all tasks complete prior to transferring a case load, while white coworkers were not; (3) she was accused of unprofessional behavior; (4) she suffered from unwarranted employment discipline; (5) she was forced to take "calls" before 5:00 p.m.; and (6) she received "verbal reprimands" that contained negative comments from her supervisor. Smith alleges these instances created a hostile work environment.
To establish that a hostile work environment existed, Smith must provide evidence that: (1) she belongs to a protected group; (2) she was subject to unwelcomed harassment; (3) the harassment complained of was based on the protected class or group; (4) the harassment complained of was so severe or pervasive that it affected the terms, conditions, or privileges of employment; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Jones v. Flagship Intern., 793 F.2d 714, 719-20 (5th Cir. 1986).
Smith has not provided evidence to establish that CPS created a hostile work environment. The Court groups Smith's assertions broadly into two categories: 1) her claims about disciplinary actions and reprimands she faced; and 2) her claims about unequal treatment in receiving assignments. There is no evidence to support a hostile work environment on either group of claims. There is no evidence that the disciplinary actions she complains of were related to her race. She does not show evidence that McCammon or any other superior at CPS made racially charged statements during the disciplinary process nor is there evidence beyond Smith's speculation that she was targeted for disciplinary action because of her race. In fact, her contention is that most of these were as a result of her refusal to participate in sex acts with McCammon.
Smith's claims about the unequal treatment in assigning cases between black and white employees is not sufficiently harassing to make out a hostile work environment claim. Harassing conduct includes severe "[d]iscriminatory verbal intimidation, ridicule, and insults," or conduct that is "physically threatening or humiliating." Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000) (internal quotations omitted) (alteration in original). It is conduct which creates an environment that is both objectively and subjectively abusive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). Smith has never testified that she considered it to be abusive or threatening. Discriminating in work assignments may be wrong, unfair, and discriminatory, but Smith has provided no evidence that it was accompanied by hostile, abusive, or threatening acts or words.
These claims would be more aptly analyzed under a disparate treatment theory. Munoz v. Orr, 200 F.3d 291, 299 (5th Cir. 2000) ("Disparate treatment refers to deliberate discrimination in the terms or conditions of employment ... on account of race, national origin, or gender.") Where, as here, there is no direct evidence of discriminatory intent, Smith must show that discrimination occurred through circumstantial evidence. To do so, she must first establish a prima facie case of discrimination by providing evidence that (1) she is a member of a protected class; (2) she was qualified for her position; (3) she was subjected to an adverse employment action; and (4) similarly situated persons were treated more favorably than she was. Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002). If she provides such evidence, then CPS must produce some evidence of legitimate, non-discriminatory reason for the unequal treatment. Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). If CPS does so, then the burden shifts back to Smith to produce evidence that either (1) CPS's "proffered reason is not true but is instead a pretext for discrimination;" or (2) CPS's "reason, while true, is not the only reason for its conduct, and another `motivating factor'" is Smith's race. Id. (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).
Ultimately, Smith presents no evidence that she or other black employees were assigned more cases or less desirable cases than white employees, and thus that they were treated unequally. McCammon testified that CPS uses a computer program called Sharepoint to measure caseloads. Misty McCammon Depo. at 53 [33-2]. McCammon assigns cases based upon who had the lowest case load at the time the case came in. Id. Smith asserts in her response that Sharepoint was implemented several months after she sued CPS, and thus Sharepoint could not be evidence that McCammon was assigning cases fairly. Pls. Opp. Mem. at 3. However, Smith's deposition testimony reveals that it was only eight months after filing her suit that she learned Sharepoint existed, not when it was implemented. Smith Depo. at 26. Before that, Smith was unaware how cases were assigned. Id. at 25. Smith has no evidence to rebut the contention that cases were assigned using Sharepoint. Further, Smith testified that she had no knowledge about whether her case load was higher or lower than any other worker in the officer. Id. at 58-59. Her sole basis for concluding that white workers had less or easier cases was that they "seemed" to have more free time. That speculation does not raise a triable issue of fact. Therefore, the Court grants summary judgment in favor of CPS on Smith's Title VII racial discrimination claims.
Smith asserts that McCammon created a sexually hostile work environment and CPS is liable as a result. Sexually harassing behavior that creates sexually hostile work environment violates Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986)
CPS first argues that Smith did not timely file an EEOC charge of discrimination on her gender discrimination claims. In order to initiate a claim under Title VII, a plaintiff must first file a charge describing the alleged discrimination with the EEOC. 42 U.S.C.A. § 2000e-5(e)(1). This charge must be filed within 180 days after the alleged discrimination has occurred, or within 300 days if the party first filed a complaint with a state or local agency, which did not occur here. Id. If the plaintiff fails to do so, those claims are time-barred. Ikossi-Anastasiou v. Bd. of Supervisors of Louisiana State Univ., 579 F.3d 546, 550 (5th Cir. 2009)
Generally, "[a] discrete retaliatory or discriminatory act `occurred' on the day that it `happened.' A party, therefore, must file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Hostile work environment claims are not the product of discrete acts, however, because the actionable harassment necessarily "occurs over a series of days or perhaps years ..." Id. at 115. Thus, if "an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id. at 117.
That distinction is of no importance, here, however, because Smith did not file her EEOC charge within 180 days of the last harassing act. Smith asserts three incidents give rise to her hostile work environment claim:
See Pl. Memo in Opp. at 8. Smith admitted that no other sexually harassing incident occurred after those conversations:
Id. at 45. Smith did not file her EEOC charge until February 6, 2018, almost an entire year after the last harassing act. Her hostile work environment is time-barred.
Assuming that they were not time-barred, however, Smith's claims would still fail. Both McCammon and Smith are female. The Court uses a two-step process for evaluating same-sex harassment cases. E.E.O.C. v. Boh Bros. Constr. Co., 731 F.3d 444, 453 (5th Cir. 2013). First, the Court must determine whether there is evidence that the harassment occurred "because of sex." Only if the Court finds that this evidence exists does it proceed to the second step: determining whether there is evidence of either a quid pro quo or hostile work environment claim.
Here, there is no evidence that McCammon's actions towards Smith occurred "because of sex." A plaintiff may establish that that harassment occurred "because of sex" in three ways:
La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir. 2002) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 89, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). There has been no assertion that conduct of the second or third type occurred. Nor does Smith provide evidence of the first type. Smith stated in her deposition that it was McCammon's boyfriend, not McCammon who proposed the sexual activity.
42 U.S.C. § 1981 provides that all persons shall enjoy the same rights "to enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property" without regard to their race. Smith asserts that defendants discriminated against her on account of her race in violation of § 1981 in the same ways as set forth in her Title VII claim.
Defendants argue that Smith's § 1981 claim fails because she did not invoke § 1983 in her cause of action. The Fifth Circuit has held that § 1981 does not independently provide a cause of action against state actors. Oden v. Oktibbeha Cnty, Miss., 246 F.3d 458, 462-63 (5th Cir. 2001). Thus, the Fifth Circuit has traditionally required that § 1981 claims against state actors must be asserted through § 1983. Id. at 463-54. Felton v. Polles, 315 F.3d 470, 482 (5th Cir. 2002).
However, in Johnson v. City of Shelby, Miss., 574 U.S. 10, 135 S.Ct. 346, 346, 190 L.Ed.2d 309 (2014), the Supreme Court overturned Fifth Circuit precedent requiring plaintiffs to specifically invoke § 1983. Since Shelby, the Fifth Circuit has since issued decisions both questioning and citing with approval its prior decisions. Compare Udeigwe v. Texas Tech Univ., 733 F.App'x 788, 793 (5th Cir. 2018) ("[Plaintiff's] pleadings do not make clear that he is properly pursuing his § 1981 claim through § 1983 ...") (citing Felton, 315 F.3d at 470) with Graham v. Bluebonnet Trails Cmty. Servs., 587 F.App'x 205, 206 (5th Cir. 2014) ("We have doubts about the district court's denial of [plaintiff's] section 1981 claim on the ground that she did not cite section 1983 as the procedural vehicle for asserting such a claim, particularly after the Supreme Court's decision in [Shelby].")
Nonetheless, the Court can resolve this issue without deciding whether Smith should have, at some point in this litigation, mentioned § 1983. Even if she had, Smith cannot maintain a § 1983 claim for violations of § 1981 against any defendant.
First, Smith cannot maintain a § 1983 claim against CPS or Dickinson and McCammon in their official capacities because they are entitled to sovereign immunity. A suit against a government official in his or her official capacity is "only another way of pleading an action against an entity of which [the official] is an agent." Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A suit against Dickinson and McCammon is a suit against CPS. CPS, as an arm of the State of Mississippi, enjoys sovereign immunity unless an exception applies.
There are three exceptions to sovereign immunity: abrogation, waiver, and the Ex parte Young doctrine. Congress has not abrogated state sovereign immunity for § 1983 claims, Yul Chu v. Mississippi State Univ., 901 F.Supp.2d 761, 773 (N.D. Miss. 2012), aff'd, 592 F.App'x 260 (5th Cir. 2014), or for violations of § 1981 for that matter. Early v. S. Univ. & Agr. & Mech. Coll. Bd. of Sup'rs, 252 F.App'x 698, 700 (5th Cir. 2007). Nor has Mississippi waived its sovereign immunity for these actions. Yul Chu, 901 F.Supp.2d at 774. Finally, Smith seeks no prospective, injunctive relief against Dickinson or McCammon that would avail her of the Ex parte Young exception. Id. at 775 ("Plaintiff's Section 1983 claims for injunctive relief are permitted only if brought against the appropriate state officials and seeking prospective relief to end a continuing violation of federal law."). Since no exception applies, CPS, and Dickinson and McCammon in their official capacities are immune.
Second, Smith fails to present evidence that McCammon violated § 1981. Race discrimination claims brought under § 1981 require the same proof as those brought under Title VII. Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005) (citing Raggs v. Miss. Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002)). As stated above, Smith does not have sufficient evidence to establish her Title VII race discrimination claim. Therefore, she also does not have sufficient evidence to establish a § 1981 claim.
The Court finds there is no genuine issue of material fact with respect to any of Smith's claims. The Court grants the defendants' motion.
An order in accordance with this opinion shall issue.
