Seals v. Southwire Company

Filing 37

ORDER granting 28 Motion for Summary Judgment. Signed by District Judge Michael P. Mills on 10/11/2018. (lpm)

UNITED STATES DISTRICT COURT
IN THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
MELVIN SEALS

PLAINTIFF

VS.

CASE NO. 1:17cv203

SOUTHWIRE COMPANY

DEFENDANT
ORDER

This cause comes before the court on the motion of defendant Southwire Company for
summary judgment, pursuant to Fed. R. Civ. P. 56. Plaintiff Melvin Seals has responded in
opposition to the motion, and the court, having considered the memoranda and submissions of
the parties, concludes that the motion is well taken and should be granted.
This is, inter alia, a race and sex discrimination case which is presently set for trial in
January, with this court serving as trier of fact.1 On August 21, 2017, plaintiff, an AfricanAmerican male, was fired from his position at an Extruder Operator at Southwire’s Starkville
factory, where he had worked since 2007. Southwire manufactures wire and cable used in
electricity distribution and transmission. The stated reason for plaintiff’s termination was that he
had accumulated twelve attendance points (for unexcused absences), more than the ten needed
for termination under Southwire’s policies. As a result, plaintiff’s supervisor Fred Turner, in
conjunction with Dan Bickford (the plant manager), Brian Davis (the operations manager), and
Natalie Henley (the human resources manager) made the decision to terminate his employment.
Soon thereafter, plaintiff filed a charge of discrimination with the Equal Employment

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Plaintiff was originally represented by counsel in this action, but that counsel subsequently
withdrew from this case for unexplained reasons and Seals is now litigating this case on a pro se
basis.
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Opportunity Commission (EEOC), and, after receiving a right to sue letter, he filed the instant
action in this court. Defendant has presently moved for summary judgment, arguing that no
genuine issue of fact exists regarding its potential liability in this case and that it is entitled to
dismissal as a matter of law.
In the court’s view, the summary judgment analysis in this case is quite straight-forward,
and it supports a dismissal of plaintiff’s claims. Plaintiff raises four claims in this case, and it
seems clear that two of them, his ADA discrimination and retaliation claims, are due to be
dismissed for failure to exhaust administrative remedies. Before a plaintiff may file a Title VII
or ADA claim in federal court, he must first exhaust his administrative remedies. See Dao v.
Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (noting that the ADA incorporates by
reference Title VII’s administrative procedures). In Mississippi, plaintiffs must file a charge of
discrimination with the EEOC within 180 days of “the alleged unlawful employment practice.”
42 U.S.C. § 2000e–5(e)(1). This exhaustion requirement serves an important purpose, since “a
primary purpose of Title VII is to trigger the investigatory and conciliatory procedures of the
EEOC, in attempt to achieve non-judicial resolution of employment discrimination claims.”
Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006).2
In arguing that plaintiff failed to exhaust administrative remedies, defendant notes that,
on September 5, 2017, Seals filed two EEOC charges of discrimination, in which he marked only
the “race” and “sex” discrimination boxes. Plaintiff failed to check the appropriate boxes for the

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This court notes that, in the Fifth Circuit, there is a limited exception to the exhaustion
requirement for retaliation claims which allows a plaintiff to proceed in district court on an
unexhausted retaliation claim if that claim is alleging retaliation for properly bringing an
exhausted claim before the district court. Sapp v. Potter, 413 F. App'x 750, 752 (5th Cir.
2011)(citing Gupta v. E. Tex. State Univ., 654 F.2d 411, 414 (5th Cir. 1981). This is clearly not
the case here, however, since plaintiff’s retaliation claims allegedly arose prior to his filing of
both his first EEOC charge and his subsequent lawsuit in this court.
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retaliation and disability discrimination claims which he now seeks to assert in this case. This
court notes that, in his two-page response to the motion for summary judgment, plaintiff offers
no arguments in response to defendant’s extensive arguments that he failed to exhaust
administrative remedies with regard to his ADA discrimination and retaliation claims. This fact
alone could be regarded as a concession of defendant’s exhaustion arguments. Moreover,
plaintiff appears to have tacitly admitted that he failed to exhaust administrative remedies in his
first EEOC charge by filing a second EEOC charge in which he checked boxes for retaliation and
sex discrimination.3
While the above facts might reasonably be regarded as a concession of defendant’s
exhaustion arguments, this court will, considering plaintiff’s status as a pro se litigant, discuss
the merits of this issue. This court initially notes that, standing alone, plaintiff’s failure to check
the appropriate boxes in his EEOC charges, while significant, does not necessarily mean that he
failed to exhaust his administrative remedies. See, e.g. Miller v. Sw. Bell. Tel. Co., 51 Fed.Appx.
928, 930 (5th Cir. 2002)( “[F]ailure to fill in the appropriate box in the filed charge” warrants
summary judgment on exhaustion grounds only when “coupled with the inability to describe the
general nature of the claim in the narrative section of the charge”). In determining whether
plaintiff exhausted his administrative remedies, this court must “interpret[] what is properly
embraced in review of a Title VII claim somewhat broadly, not solely by the scope of the

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This court does not regard this second EEOC charge, which was filed after this lawsuit, as
being a proper part of this case, and it has accordingly not considered it. Defendant argues, and
this court agrees, that this second EEOC charge is untimely, inasmuch as it was filed on April 24,
2018 and complained of actions which allegedly occurred on August 17, 2017. This is well past
the 180-day deadline for filing such a charge. Moreover, even if plaintiff’s second charge had
been timely filed, Title VII clearly requires a plaintiff to file an EEOC charge and obtain a right
to sue letter before filing a lawsuit in district court, not after. In the court’s view, it would invite
judicial chaos if the EEOC and district courts were to simultaneously litigate the same claims,
and it was clearly not Congress’ intent that this occur.
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administrative charge itself, but by the scope of the EEOC investigation which ‘can reasonably
be expected to grow out of the charge of discrimination.’” Sanchez v. Standard Brands, Inc., 431
F.2d 455, 466 (5th Cir. 1970).
Given the language in plaintiff’s EEOC charge, this court does not believe that an ADA
or retaliation claim might have reasonably been expected to “grow out of” it, notwithstanding
plaintiff’s failure to check the appropriate boxes. In his EEOC charge, plaintiff alleged as
follows:
I was hired October 2, 2007 as an Extruder Operator. I was discharged August 21, 2017.
Dan Brickford, Plant Manager said, I was discharged for having twelve points.
I believe I was discriminated because of my race/Black/sex/male in violation of Title VII
of the Civil Rights Act of 1964, as amended since:
A: I was assessed points for my attendance which I should not have been given points. I
went to the hospital on August 17, 2017 because I was ill. I called in to inform my
supervisor that I would be in; however, when I got to work, and my supervisor looked at
my excuse, there was a prescription that I had to fill. I did not have the prescription filled
when I was sent home. I went to the hospital because I was working around an employee
who was smoking on the job and this facility is a non-smoking facility. I believe my pain
was due to smoking. This generated two points. I returned to work on August 18.
B: I was not given sufficient notice that I had to work on July 15. My supervisor, James
Holloway (Black) came to me at 4:00 Friday morning, stating that he forgot to tell me
that Bryan Davis (White), Department Manager/Operation Manager sent him an email
Wedesday stating that they need C1 to run Saturday. After that notice, I responded that I
had already made plans to attend a family reunion. After being notified by my
supervisor, he said, he would have to get with Bryan Davis. He did notify the other
operator on Thursday that he had to come in on July 15 but he forgot to tell me. Male
coworkers agreed to work for me on July 14 and 15.
C: Bryan Davis would not allow my male coworkers to replace me. James Holloway
and Fred Turner (Black) supervisors allowed my coworkers to work for a black female in
another area. The female was not a qualified operator; she is only a forklift driver. A
black male (CV Helper) worked in the same department where I worked was allowed to
take off with no advance notice by his brother-in-law, James Holloway. About the
middle of May 2017, four CV1 operators (black males, including me) were asked on a
Friday to work the following day, Saturday. Two of the black males stated that they had
plans with their family already. To my knowledge no points were assessed against them
for not working on Saturday because of a late notification from the supervisor. A black
male who had accumulated over 18 points did not call in for work three days in a row.
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He was given six points for each day not calling in by Fred Turner. To my knowledge he
was discharged between August 24 and August 29. However, to my knowledge he was
rehired August 31 or September 1.
[September 5, 2017 EEOC charge at 1-2].
In the court’s view, the most important part of the above narrative is the introductory
sentence, in which plaintiff wrote that “I believe I was discriminated because of my
race/Black/sex/male in violation of Title VII of the Civil Rights Act of 1964, as amended since . .
.”. In so writing, plaintiff was utilizing his own words, in plain English, and he could not have
been clearer that the factual narrative which followed was to be interpreted in light of his
allegation that he was discriminated against on the basis of his race and sex. Thus, this is clearly
not a case in which plaintiff merely neglected to “check the boxes” for disability discrimination
and/or retaliation. To the contrary, plaintiff specifically stated that his factual narrative was to be
read as evidence of race and sex discrimination, and this court believes that, in conducting its
investigation, the EEOC is entitled to rely upon such specific and clear representations by the
charging party.
That brings this court to another compelling reason for finding plaintiff’s claims to be
procedurally barred, namely that the fact that, in its “right to sue” letter to plaintiff, the EEOC
made it clear that it did, in fact, only consider his allegations of race and sex discrimination. In
most EEOC “right to sue” letters which this court has considered, the agency has simply stated,
in broad and vague terms, whether it been able to verify the plaintiff’s claims. In this case,
however, the EEOC appeared to go significantly further, finding that plaintiff’s own factual
narrative did not support his claims for race and sex discrimination. Specifically, the EEOC
wrote that:
Dear Mr. Seals:

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On September 5, 2017, you filed a charge alleging that you were discriminated
against in violation of the Title VII of the Civil Rights Act of 1964, as amended, in that
you were discharged because of your race (black) and sex (male). This letter is provided
as notification and explanation why the EEOC will not continue its investigation of this
matter.
The Respondent's actions regarding your employment do not appear to have been
a violation of the statutes we enforce. In order to establish a violation on a Discharge
issue, the evidence must show in the following order of proof 1) Charging Party belongs
to a protected group; 2) Charging Party was discharged; 3) Others similarly situated but
not of Charging Party's group were not discharged; and 4) Respondent cannot explain the
difference in treatment or Respondent's explanation is in fact pretext for discrimination.
Although you are member of the protected group(s) and you were discharged, the
Respondent has cited a non-discriminatory reason for your discharge, e.g., "the
accumulation of attendance points". Furthermore, while you alleged discrimination,
those allegedly treated better included employees who are black and male like yourself.
Based on this analysis, we are recommending this matter be closed.
(Pl. Dep. II, 190:7-11, Ex. 27)(emphasis added). Thus, the EEOC made it clear that it only
considered plaintiff’s claims of race and sex discrimination, and it gave no indication whatsoever
that it had conducted any inquiry into any disability or retaliation claims. That being the case,
this is not a case in which this court is required to speculate regarding what matters the EEOC
might have chosen to investigate in response to plaintiff’s charge. To the contrary, the EEOC’s
right to sue letter clearly suggests that it considered only plaintiff’s claims of race and sex
discrimination, and, given the language of plaintiff’s charge, this fact is hardly surprising.
This court further notes that there is synergy in this case between defendant’s procedural
defenses based on failure to exhaust and its alternative arguments that plaintiff’s non-exhausted
claims lack substantive merit. Indeed, in deciding whether a particular, allegedly non-exhausted,
claim could “reasonably be expected to grow out of the charge of discrimination,” it seems clear
that the stronger a resemblance which the claim bears factually to a traditional ADA
discrimination or ADA retaliation claim, then the more likely it is that the EEOC would have
raised the issue on its own motion. In its briefing, defendant notes numerous substantive
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weaknesses in plaintiff’s ADA disability and retaliation claims, and, given the procedural bar in
this case, it is unnecessary for this court to discuss them in any depth.
Briefly, however, this court notes that plaintiff appears to argue that defendant failed to
reasonably accommodate his requests for non-smoking facilities based upon his having been
diagnosed with testicular cancer years previously. This court’s review of the scant authority in
this context suggests that this is an evolving area of the law in which some commentators have
argued that the ADA should cover second-hand smoke cases. See, e.g. Lainie Rutkow, Banning
Second-Hand Smoke in Indoor Public Places Under the Americans with Disabilities Act: A
Legal and Public Health Imperative, 40 Conn. L. Rev. 409 (2007). However, the actual authority
in this context appears to be exceedingly limited, and this court is unaware of any decisions
involving facts similar to those here.
This court’s “best guess” is that the ADA might someday be held to cover second-hand
smoke complaints by employees who suffer from conditions, such as asthma, which require them
to avoid cigarette smoke. However, plaintiff cites no authority indicating that there is a
sufficient link between second-hand cigarette smoke and testicular cancer such as to render nonsmoking premises a required accommodation for an employee with his medical history, and this
court is unaware of any such authority. Thus, plaintiff presents what appears to be a quite novel
theory of disability discrimination, unsupported by any cited precedent, and this leaves him in a
poor position to argue that the EEOC should have interpreted his charge as asserting an ADA
claim. Making his burden even more difficult, plaintiff must show that his termination was a
“but for” cause of his engaging in protected activity under any non-Title VII claims he might
assert. See e.g. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). Given these

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formidable obstacles, it seems quite unlikely that plaintiff’s proof would be sufficient to meet
this burden, even if he had exhausted his ADA discrimination and retaliation claims.
Once again, however, this court concludes that plaintiff’s ADA discrimination and
retaliation claims were not properly exhausted before the EEOC, and this fact alone requires that
they be dismissed. This court considers it important to note the substantive weaknesses in
plaintiff’s claims, however, since they make it much more difficult to contend that such claims
should have “grown out of” plaintiff’s EEOC charge. Indeed, it cannot validly be contended that
the EEOC should have read plaintiff’s charge as potentially asserting an ADA discrimination or
retaliation claim when plaintiff specifically asserted in his charge that the factual narrative which
allegedly touches upon these issues was to be read as part of his Title VII race and sex
discrimination claims. As quoted above, the EEOC found that plaintiff’s own recitation of the
facts did not support recovery even under Title VII’s “motivating factor” standard, and it strains
credulity to argue that a claim of retaliation should have “grown out of” a charge which was
specifically limited to race and sex discrimination. In light of the foregoing, this court
concludes that plaintiff failed to exhaust his administrative remedies with regard to his claims for
ADA discrimination and retaliation, and these claims will therefore be dismissed without
prejudice.
This court now turns to plaintiff’s race and sex discrimination claims, which were raised
before the EEOC and are thus properly before it. Where there is no direct evidence of
discrimination, this court must follow the McDonnell Douglas framework to determine whether
claims of discrimination can survive. See McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under the McDonnell Douglas framework, the plaintiff must first prove a prima facie
case of discrimination by showing that (1) he is a member of a protected class; (2) he was

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qualified for the position; (3) he was the subject of an adverse employment action; and (4) he
was treated less favorably than similarly situated employees under nearly identical
circumstances. See Lee v. Kan. City S. Ry., 574 F.3d 253, 259 (5th Cir. 2009). Should the
plaintiff establish a prima facie case, the burden shifts to the defendant to provide a legitimate,
non-discriminatory reason for the challenged decisions. Septimus v. Univ. of Hous., 399 F.3d
601, 609 (5th Cir. 2005). Once the defendant provides a legitimate, nondiscriminatory reason,
the plaintiff must then show that a genuine issue of material fact whether the legitimate reasons
given by the defendant are a pretext for discrimination. Id.
In the court's view, the Title VII analysis in this case is quite straightforward, since the
deficiencies in plaintiff's race and discrimination claims arise from an evident mis-understanding
of the basic purpose of the statute. Title VII was enacted to combat adverse employment
decisions which are made because of (at least in part) the plaintiff's race and/or sex. From
reading plaintiff’s submissions, he clearly believes that he received a “raw deal” with regard to
his termination, inasmuch as he claims that he was wrongly assessed negative “points” for
absences in a manner that, he claims, differed from the treatment afforded other employees.
Plaintiff repeatedly detracts from his own claims, however, by citing allegedly better treatment
which defendant afforded to co-workers who were, like himself, black males. That being the
case, even assuming that these employees were treated better than plaintiff, plaintiff’s race or sex
was clearly not the reason for such better treatment.
As quoted previously, the EEOC noted in its right to sue letter that plaintiff’s allegations
of race and sex discrimination were contradicted by his own factual narrative, such as his
allegation that:
About the middle of May 2017, four CV1 operators (black males, including me) were
asked on a Friday to work the following day, Saturday. Two of the black males stated
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that they had plans with their family already. To my knowledge no points were assessed
against them for not working on Saturday because of a late notification from the
supervisor. A black male who had accumulated over 18 points did not call in for work
three days in a row. He was given six points for each day not calling in by Fred Turner.
To my knowledge he was discharged between August 24 and August 29. However, to
my knowledge he was rehired August 31 or September 1.
[Id.].
Plaintiff’s contradictory allegations aside, the facts in the record relating to the Southwire
workplace are, in this court’s view, hardly suggestive of racial discrimination. Defendant notes
that all of the operators that worked in Seals’ immediate area were also African-American men,
and this fact does tend to make it seem even less likely that defendant was motivated by an
animus against individuals of plaintiff’s race and sex. Perhaps more importantly, defendant
notes that “[a]t the time of his termination, plaintiff’s immediate supervisors were Fred Turner
and James Holloway, both of whom are African-American men.” [Defendant’s brief at 2].
Indeed, this court’s reading of the record is that Southwire provided a quite racially diverse
workplace, both at the employee and supervisor level. Moreover, plaintiff had worked at
Southwire for ten years at the time he was fired, and the company was obviously aware of his
race during that lengthy time period. In light of these facts, the weaknesses in plaintiff’s proof of
race discrimination become even more glaring.
In his EEOC charge, plaintiff did allege an incident in which a female employee was
treated better than he was, writing that “James Holloway and Fred Turner (Black) supervisors
allowed my coworkers to work for a black female in another area.” Immediately after so
alleging, however, plaintiff undercuts his own proof by writing that “[t]he female was not a
qualified operator; she is only a forklift driver.” [EEOC charge at 2]. In its brief, defendant
notes that “[i]n contrast to forklift drivers and helpers, positions that require relatively little skill,

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plaintiff was specifically trained to work on the C1 Extruder machine for a month with trainers
from Germany and approximately two months with coworkers where he was trained to make
adjustments during the machine’s operation, which takes significant skill.” [Summary judgment
brief at 7].
Thus, defendant has submitted what this court regards as a logical reason, supported by
plaintiff’s own EEOC charge, as to why its female employee found it easier to obtain substitute
workers than plaintiff did. Defendant notes that its employee handbook, of which plaintiff was
provided a copy expressly states that “[i]f you would like to substitute a fellow employee to work
all or part of your scheduled shift, you must provide an equally qualified substitute and have
your supervisor’s prior approval.” (Ex. 12, at 12-13; Henley Decl. ¶ 4)(emphasis added).
Plaintiff’s own admission that his female co-worker was merely a forklift operator thus casts
doubt upon his own claims, and his deposition testimony raised additional doubts in this context.
In his deposition, plaintiff made clear his belief that the female forklift operator,
identified as Teka White, was given preferential treatment because she allegedly had a sexual
relationship with supervisor James Holloway, an African-American male. In his deposition,
plaintiff testified that:
Q: So it sounds like what you’re saying is that the female forklift driver was given special
treatment, not just because she was a female, but also because she had a personal
relationship with this man.
A: Correct. That too.
[Plaintiff’s depo. at 168]. Thus, plaintiff testified to his belief that the alleged favoritism shown
to White resulted partly from her personal relationship with a supervisor, but this is not the sort
of discriminatory motivation which is addressed by Title VII. Indeed, the Fifth Circuit has held
that “when an employer discriminates in favor of a paramour, such an action is not sex-based
discrimination, as the favoritism, while unfair, disadvantages both sexes alike for reasons other
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than gender.” Ackel v. Nat'l Commc'ns, Inc., 339 F.3d 376, 382 (5th Cir. 2003). As a nonattorney, it is understandable that plaintiff would fail to grasp that his deposition testimony
seriously damages his claims, but it clearly does.
This court finally notes that, in his complaint, plaintiff asserted for the first time that a
white male comparator had been treated better than he was. Specifically, plaintiff claims that
around September or October 2015 a white employee named George James did not receive a
major discipline regarding excessive quantity of scrap and that plaintiff unfairly took the blame
for his mistake (although he was later able to demonstrate his innocence).4 In his deposition,
plaintiff conceded that he did not include this allegation in his EEOC charge, because he
concluded that it was time-barred. Specifically, plaintiff testified that he did not include this
claim in his EEOC charge because “the time period was out of that 180 days frame of when that
incident occurred, so I couldn’t file my actual charge on that because it was out of the statute of
limitations.” [Plaintiff’s depo. at 16]. Thus, plaintiff specifically conceded in his deposition that
any charge of discrimination based upon the 2015 incident was time-barred, and he provides no
arguments in his response to the summary judgment motion which would cast doubt upon this
conclusion.
Even assuming that the 2015 incident is not time-barred, the fact remains that plaintiff
specifically chose not to present it before the EEOC based upon his conclusion that it was timebarred. Thus, the EEOC never had an opportunity to consider the claim, which certainly makes
it problematic for plaintiff to include this allegation in this case. Moreover, even if this court
were to conclude that plaintiff’s claim relating to the 2015 incident was properly before it, it

4

The facts surrounding this incident are rather complex, but, for the purposes of this motion, this
court will assume that plaintiff is correct that he was unfairly blamed in this regard.
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would still conclude that a single incident in which a white co-worker was allegedly treated
better than plaintiff, during his ten year employment at Southwire, is insufficient to establish fact
issues regarding race discrimination. In so stating, this court emphasizes once again that plaintiff
asserts several other incidents in which African-American co-workers, both male and female,
were treated better than him. Moreover, plaintiff offers this court no direct evidence that any of
his supervisors were motivated by animus against him on the basis of his race or sex, and this
court has noted that many of his co-workers and supervisors were African-American males such
as himself.
Even with regard to the 2015 incident, plaintiff himself seemed to have nothing more
than a subjective belief that race might have had something to do with his unfairly being blamed
for creating excessive scrap. It appears that one limited use of the 2015 incident for plaintiff
might be to demonstrate potential racial animus on the part of operations manager Brian Davis,
who was one of four individuals who had a role in the 2018 decision to fire plaintiff. Even as to
Davis, however, plaintiff provided scant objective evidence which might support a finding of
racial animus. For example, plaintiff testified that:
Q: What about Brian Davis, do you believe that he was recommending you were
disciplined in 2015 because you’re a black male?
A: I’m not assuming he was, but I just didn’t understand why they wanted me disciplined
and not the other guy and he was a different race. * * *
Q: So Mr. Davis didn’t ever say anything to you that was racially offensive, did he?
A: No, he didn’t.
[Plaintiff’s depo. at 28].
Plaintiff testified that he had a subjective suspicion that Davis might have been racist, but
his own subjective (and interested) belief in this regard is not competent summary judgment
evidence regarding Davis’ state of mind. In the court’s view, extrapolating from a single 2015
incident that Davis may have been racist is simply not a sufficient basis for a Title VII
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discrimination claim. This is particularly true considering the fact that, to reiterate, plaintiff
complained of several other incidents in which other black male employees likewise received
better treatment than he did. Making plaintiff’s allegations vis a vis Davis even weaker, he
writes in his response to the summary judgment motion that “[d]ue to an incident in 2015, Brian
Davis has a negative attitude towards me.” [Plaintiff’s response at 2 (emphasis added)].
Obviously, any personal animosity which Davis might have had towards plaintiff arising from
the 2015 incident is not evidence of race discrimination, but that is what plaintiff appears to
allege. This court also notes that plaintiff has a rather weak temporal proximity argument as it
relates to the 2015 incident, given the extensive time which passed between it and his 2017
termination. Indeed, this court does not regard plaintiff’s ADA retaliation claim as being, by any
means, strong, but he at least has a temporal proximity argument that his termination was
somewhat close in time to his complaints about second-hand smoke. That is not the case with
regard to the 2015 incident.
Under these circumstances, plaintiff’s circumstantial case for discrimination is
exceedingly weak, and this court does not believe that it is sufficient to even establish a prima
facie case of discrimination under the McDonnell Douglas framework. Assuming that plaintiff is
able to make a prima facie showing of race or sex discrimination, however, this court concludes
that plaintiff has failed to cast doubt upon defendant’s stated reason for terminating him, namely
that he had accumulated twelve attendance points, which is, once again, two more than the
maximum allowable under company policy. This court therefore concludes, as the EEOC did,
that plaintiff’s claims of race and sex discrimination are not supported by his own allegations,
and it has previously concluded that his ADA discrimination and relation claims were not

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properly exhausted before the EEOC. These claims are therefore due to be dismissed, and
defendant’s motion for summary judgment will be granted.
It is therefore ordered that defendant’s motion for summary judgment is granted.
A separate judgment will be entered this date, pursuant to Fed. R. Civ. P. 58.
This, the 11th day of October, 2018.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE NORTHERN
DISTRICT OF MISSISSIPPI

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