Alston v. Mississippi Department of Transportation

Filing 183

ORDER granting 140 Motion for Summary Judgment; denying 142 Motion for Summary Judgment; denying as moot 150 Motion to Take Judicial Notice; granting 151 Motion for Leave to File; denying as moot 156 Motion ; denying 163 Motion for Sanctions; granting 169 Motion for Leave to File. Signed by District Judge Debra M. Brown on 7/30/19. (jtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
JASON D. ALSTON

PLAINTIFF

V.

NO. 4:16-CV-236-DMB-JMV

MISSISSIPPI DEPARTMENT OF
TRANSPORTATION

DEFENDANT
ORDER

This case of alleged employment discrimination is before the Court on numerous motions,
most of them filed by pro se plaintiff Jason D. Alston.
I
Relevant Procedural History
On August 24, 2017, Jason D. Alston, proceeding pro se, filed a third amended complaint
against the Mississippi Department of Transportation (“MDOT”). Doc. #70. Although the facts
section of the third amended complaint contains allegations of racial discrimination related to a
failure to promote, and allegations of unlawful retaliation related to a write-up and subsequent
forty-hour suspension, see id. at 2–4, the pleading asserts only a claim of retaliation in violation of
Title VII of the Civil Rights Act, id. at 5–6.
MDOT moved to dismiss the third amended complaint on November 10, 2017. Doc. #82.
On January 2, 2018, United States Magistrate Judge Jane M. Virden issued a Report and
Recommendation recommending that the motion be granted to the extent Alston asserted a
retaliation claim based on failure to promote, and that the motion be denied with respect to Alston’s
claims premised on “September reprimand(s)/40-hour suspension.” Doc. #93. This Court adopted
the Report and Recommendation on April 17, 2018. Doc. #99.
After a period of discovery: (1) MDOT moved for summary judgment, Doc. #140; (2)

Alston moved for summary judgment, Doc. #142; (3) Alston filed “Plaintiff’s Second Motion to
take Judicial Notice,” Doc. #150; (4) Alston moved for leave to file a sur-reply in opposition to
MDOT’s motion for summary judgment, Doc. #151; (5) Alston filed “Plaintiff’s Motion to Take
Judicial Notice in Support of Plaintiff’s Response in Opposition to Defendant’s Motion for
Summary Judgment,” Doc. #156; (6) Alston moved for Rule 11 sanctions against MDOT, Doc.
#163; and (7) Alston moved to supplement his motion for sanctions, Doc. #169.
II
Alston’s Motion to Supplement
Alston’s motion to supplement seeks leave to “attach” an Exhibit A to his motion for
sanctions filed January 22, 2019, and to attach an Exhibit B to the accompanying memorandum
filed the same day. Doc. #169 at 2. The proposed attachments are signature pages dated January
17, 2019. Docs. #169-1, #169-2. The Court presumes these signature pages are intended to replace
the apparently erroneous signature pages dated December 21, 2018, in Alston’s January 22 motion
for sanctions and supporting memorandum. See Doc. #163 at 3; Doc. #164 at 9.
MDOT opposes Alston’s motion to supplement because it already responded to the motion
for sanctions and because “Plaintiff’s Motion for Leave is Plaintiff’s fifth motion asserting that
Defendant has engaged in misconduct ….” Doc. #170. While both assertions may be true, neither
justifies denying the limited and non-substantive relief Alston’s motion seeks. Accordingly,
Alston’s motion to supplement his motion for sanctions will be granted.
III
Alston’s Motions for Judicial Notice
In “Plaintiff’s Second Motion to take Judicial Notice,” Alston asks the Court to take
judicial notice of statements made by MDOT or its counsel (1) during his deposition, (2) in
MDOT’s memorandum supporting its motion for summary judgment, (3) in MDOT’s reply in

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support of its motion for summary judgment, and (4) in MDOT’s response to his motion for
summary judgment. Doc. #150. Alston argues these statements show MDOT’s counsel has acted
in “total disregard for the Federal Rules of Civil Proc[e]dures 11.” Id. at 4. MDOT opposes the
motion because “there is no credible evidence to demonstrate that the Defendant has acted in bad
faith ….” Doc. #155 at 2.
MDOT’s response seems to confuse the relief requested in the motion (taking judicial
notice of certain statements) with the alleged purpose of the request (to support a motion for
sanctions). While the motion for sanctions may ultimately be denied, that does not mean the Court
may not take judicial notice of the statements Alston seeks to sanction. Regardless, a court does
not need to take judicial notice of exhibits which already appear on the Court’s docket. Fenton v.
Wells Fargo Home Mortg., No. 17-cv-113, 2017 WL 1346672, at *2 (S.D. Cal. Apr. 12, 2017)
(collecting cases). Because the deposition and memorandums Alston asks the Court to take
judicial notice of are already on this Court’s docket, there is no reason to take judicial notice of
such documents. Therefore, “Plaintiff’s Second Motion to Take Judicial Notice” will be denied
as moot. For the same reason, the Court also will deny as moot “Plaintiff’s Motion to Take Judicial
Notice in Support of Plaintiff’s Response in Opposition to Defendant’s Motion for Summary
Judgment,” which asks the Court to take judicial notice of Alston’s deposition and MDOT’s
memorandum in support of its motion for summary judgment. Doc. #156.
IV
Alston’s Motion for Sanctions
Alston, invoking Federal Rule of Civil Procedure 11 and this Court’s inherent power to
sanction, seeks $100,000 in attorney’s fees because MDOT’s memorandum in support of its
motion for summary judgment states the elements of an Americans with Disabilities Act retaliation
claim rather than a Title VII retaliation claim. See Doc. #164. MDOT argues sanctions are
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unwarranted because it correctly stated Title VII law in its reply and in other filings.1 Doc. #166
at 2. MDOT’s response also purports to “correct[] its Memorandum” to apply the proper standard.
Id.
Because Title VII and ADA retaliation claims are resolved under the same standard,2
because the relevant pleading made clear it was seeking dismissal of a Title VII claim, and because
MDOT indisputably referred to the correct standard in other briefs, Alston essentially seeks
$100,000 for an inconsequential typographical error. Neither Rule 11, which does not apply when
errors are timely corrected,3 nor this Court’s inherent authority to sanction, which only applies in
instances of bad faith,4 contemplate sanctions for such an action. See Gray v. Staley, 310 F.R.D.
32, 40 (D.D.C. 2015) (Rule 11 sanctions denied where counsel subsequently corrected
misstatement on the record); Yelton v. PHI, Inc., 279 F.R.D. 377, 385 (E.D. La. 2011) (negligence
insufficient to support inherent power sanctions). Alston’s motion for sanctions will be denied.5
1

Alston contends that because he mailed the motion to MDOT on January 17, 2019, MDOT’s February 5, 2019,
response was untimely. Doc. #168. Local Rule 7(b)(4) provides that a party must file a response within 14 days of
service. The Federal Rules of Civil Procedure provide that a document is served when it is mailed to a person’s last
known address, Fed. R. Civ. P. 5(b)(2)(C), but that when service is completed by mail, three days are added to the
applicable deadline, Fed. R. Civ. P. 6(d). Alston is correct that, if the motion was mailed on January 17, 2019, the
deadline for response would have been February 4, 2019, one day before MDOT responded. However, insofar as this
Court did not receive Alston’s motion until January 22, 2019, the Court is skeptical of Alston’s representation. Given
this uncertainty, and because the response was filed only one day after the deadline, the Court will exercise its
discretion to consider MDOT’s response. See Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 161 (5th Cir.
2006) (decision to consider untimely response reviewed for abuse of discretion).
2

See Grubic v. City of Waco, 262 F. App’x 665, 666 n.6 (5th Cir. 2008) (“[T]his court applies the same analysis to
ADA and Title VII retaliation claims.”).

3

See Fed. R. Civ. P. 11, advisory committee note to 1993 amendment (motion for sanctions should not be filed when
“alleged violation is corrected, as by withdrawing (whether formally or informally) some allegation or contention”).
4

In re Yorkshire, 540 F.3d 328, 332 (5th Cir. 2008) (inherent authority to sanction requires specific finding of bad
faith).

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Alston, in his reply in support of the motion for sanctions, argues that MDOT’s duplicate filing of its reply in support
of its motion for summary judgment is indicative of an intent to “harass the plaintiff and drive and/or increase the cost
of litigation to delay this matter.” Doc. #168 at 4. A review of the record shows that MDOT filed a reply on December
26, 2018, Doc. #146, and then the next day filed an amended reply, Doc. #147, and an accompanying memorandum
(which appears identical to the initial reply), Doc. #148. Although less than clear, it appears MDOT was under the
mistaken impression a rebuttal must be accompanied by a memorandum brief. See L.U. Civ. R. 7(b)(2) (“The
memorandum brief must be filed as a separate docket item from the motion or response and the exhibits.”); see also

4

V
Alston’s Motion for Sur-reply
“Plaintiff’s Motion for Leave to File Surreply to Defendant’s Reply to Plaintiff’s Response
in Opposition to Defendant’s Motion for Summary Judgment” seeks leave to file a sur-reply
(which is included in the motion) to “correct a misstatement made by the Defendant in Defendant’s
Reply”6 and “a different legal authority cited for the first time.” Doc. #151 at 2. MDOT did not
respond to the motion. The motion for leave will be granted as unopposed. See L.U. Civ. R.
7(b)(3)(E) (non-dispositive motions may be granted as unopposed).
VI
Motions for Summary Judgment
Both MDOT and Alston filed motions for summary judgment on the sole claim in this
action—Alston’s Title VII retaliation claim premised on discipline related to a wrongful fortyhour suspension without pay.7 Doc. #140; Doc. #142.
A. Summary Judgment Standard
“Where, as here, parties have filed cross -motions for summary judgment, each motion
must be considered separately because each movant bears the burden of showing that no genuine
issue of material fact exists and that it is entitled to a judgment as a matter of law.” Am. Int’l
Specialty Lines Ins. Co. v. Rentech Steel LLC, 620 F.3d 558, 562 (5th Cir. 2010).
Under Rule 56(a) of the Federal Rules of Civil Procedure, “[s]ummary judgment is proper

L.U. Civ. R 7(b)(4). While these filings are indicative of a lack of attention to the rules of the Court, they are not
sanctionable conduct or evidence of any improper purpose.
6
Although the specific misstatement is not identified in the motion, Alston’s proposed sur-reply represents that, in
characterizing his response, MDOT “cite[d] a different legal authority from what was said ….” Doc. #151 at PageID
#1563.
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Despite the characterization of the claim in the Report and Recommendation, it does not appear Alston is asserting
an independent claim premised on the write-up connected to the forty-hour suspension. To the extent he is, the claim
would fail for the reasons below.

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only when the record demonstrates that no genuine issue of material fact exists and the movant is
entitled to judgment as a matter of law.” Luv N’ Care, Ltd. v. Groupo Rimar, 844 F.3d 442, 447
(5th Cir. 2016). “A factual issue is genuine if the evidence is sufficient for a reasonable jury to
return a verdict for the non-moving party, and material if its resolution could affect the outcome
of the action.” Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 226 (5th Cir. 2015)
(quotation marks omitted). In evaluating summary judgment issues, a court must “consider the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in
its favor.” Edwards v. Cont’l Cas. Co., 841 F.3d 360, 363 (5th Cir. 2016).
In seeking summary judgment, “[t]he moving party 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.” Nola Spice Designs,
L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (quotation marks and alterations
omitted). If the moving party satisfies this burden, “the non-moving party must go beyond the
pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id.
(quotation marks omitted). “Where the nonmoving party bears the burden of proof at trial, the
moving party satisfies this initial burden by demonstrating an absence of evidence to support the
nonmoving party’s case.” Celtic Marine Corp. v. James C. Justice Cos., Inc., 760 F.3d 477, 481
(5th Cir. 2014).
B. Factual Background
Jason Alston was hired by the Mississippi Department of Transportation on September 1,
2012, to work as a Maintenance Technician I in District 5 in Pearl, Mississippi. Doc. #140-5 at
12, 20, 22. Alston was promoted to the position of Maintenance Technician II sometime later. Id.

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at 20. In this role, Alston was responsible for flagging traffic, removing litter and debris, and
general upkeep of the highways and roads in his assigned area. Id. at 20–21. “Around 2014,”
Alston was transferred from District 5 to District 2 in Kosciusko, Mississippi. Id. at 22, 28.
On March 5, 2015, Alston filed an internal grievance against Morgan Henry, his supervisor,
and Keith Mangrum, another MDOT employee. Doc. #143 at 5.8 The nature of this grievance is
unclear but the issue was resolved.9 Id.
On June 2, 2015, MDOT Supervisor Martin Price issued Alston a written reprimand for
improperly placing “Mowers Ahead” signs. Doc. #143 at 8. Price then drew Alston a diagram
showing the proper placement of signs. Id. Six days later, Alston placed the signs as shown but
again was given a reprimand. Id. Price did not issue a reprimand to Mangrum, who had also
placed signs that day. Id.
On June 10, 2015, Alston filed a charge of discrimination with the Equal Employment
Opportunity Commission asserting race and disability discrimination. Doc. # 140-2. The charge
alleged that after his transfer to Kosciusko, Alston had been harassed by his white co-workers and
Henry had failed to respond properly, and that after a medical examination, Henry required Alston
to obtain a “doctor’s excuse in writing.” Id.
On June 18, 2015, Alston and MDOT employee Ronnie Bain placed “Mowers Ahead”
signs on various roads, apparently in an improper fashion. Doc. #143 at 8. Alston was issued a

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Alston submitted two affidavits—one averring that “[e]verything stated in the Plaintiff’s Motion for Summary
Judgment is … true,” Doc. #143-4; and one averring that the statement of material facts in his response to MDOT’s
motion for summary judgment “is true,” Doc. #145-4. In evaluating the factual record, the Court has considered the
factual statements supported by Alston’s affidavits. See generally Campbell v. Pohlman, No. 09-cv-1041, 2011 WL
1755714, at *5 (D. Colo. Apr. 14, 2011) (declining to consider facts in response where plaintiff “did not swear to the
accuracy of facts stated in the Response under penalty of perjury so that the Response could be treated by the Court
as an affidavit”).
9
Alston filed two additional written complaints against Mangrum. Doc. #143 at 5. Mangrum was transferred after
placing a venomous snake in the back of Alston’s assigned work truck. Id.

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written reprimand but Bain was not. Id. Approximately a month later, on July 13, 2015, Alston
filed another charge of discrimination. Doc. #140-3. This second charge alleged that after filing
his June 10, 2015, charge, Alston had “been consistently written-up for violations that were not
[his] fault.” Id. The charge referenced “two verbal warnings and a written warning” from a June
19, 2015, write-up. Id.
On September 11, 2015, Alston was issued a Pre-Disciplinary Action Notice for placing
road signs on Highway 43 North when he had been twice instructed to place the signs on Highway
43 South. Doc. #140-6. On September 25, 2015, Alston was suspended for forty hours without
pay based on a finding that he committed:
[A] Group Two offense of Insubordination, including, but not limited to, resisting
management directives through actions and/or verbal exchange, and/or failure or
refusal to follow supervisor’s instruction, perform assigned work, or otherwise
comply with applicable established written policy as stipulated in the Mississippi
State Employee Handbook, Chapter 7 (§7.1).
Id. Jan Bidonne, who was with Alston on that day, apparently was not suspended. See Doc. #1408.
C. Analysis
Title VII prohibits an employer from discriminating against an employee because the
employee “made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). In the absence of direct
evidence of retaliatory intent, Title VII retaliation claims are analyzed under the familiar
McDonnell Douglas burden-shifting framework. Outley v. Luke & Assocs., Inc., 840 F.3d 212,
219 (5th Cir. 2016). Under this approach, a plaintiff must first establish a prima facie case of
retaliation. Id. Once this is done, the burden shifts to the defendant to show a legitimate nonretaliatory reason for the challenged actions. Id. Should the defendant satisfy this burden, the

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burden shifts back to the plaintiff “to show that [the] reasons are pretext for retaliation.” Id.
1. Prima Facie Case
To establish a prima facie case for retaliation under Title VII, a plaintiff must show that
“(1) he participated in an activity protected by Title VII; (2) his employer took an adverse
employment action against him; and (3) a causal connection exists between the protected activity
and the adverse employment action.” Thomas v. Tregre, 913 F.3d 458, 463 (5th Cir. 2019). There
is no dispute that Alston participated in protected activity when he filed his July 13, 2015, EEOC
charge or that the temporal proximity between this activity and his September 25, 2015, suspension
is sufficient to satisfy the third element’s causal requirement. See Evans v. City of Houston, 246
F.3d 344, 354 (5th Cir. 2001) (“[A] time lapse of up to four months has been sufficient to satisfy
the causal connection for summary judgment purposes.”). The only question is whether the fortyhour suspension without pay represents an adverse action.
“For an employer’s act to qualify as a materially adverse action, a plaintiff must show that
a reasonable employee would have found the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Cabral v. Brennan, 853 F.3d 763, 767 (5th Cir. 2017). Courts have
regularly held, and this Court agrees, that suspensions without pay satisfy the material adversity
standard.10 See Morales v. N.Y.S. Dep't of Labor, 865 F. Supp. 2d 220, 244 (N.D.N.Y. 2012)
(“There is no question that plaintiff's one-week suspension without pay qualifies as an adverse
employment.”); Hopkins v. Bd. of Educ. of City of Chicago, 73 F. Supp. 3d 974, 989 (N.D. Ill.
2014) (“Suspension without pay is a materially adverse employment action.”). Accordingly,

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In its motion, MDOT relies heavily on Cabral v. Brennan, a case in which the Fifth Circuit held a two-day
suspension without pay was not materially adverse where the plaintiff introduced no evidence of actual harm and
where the plaintiff “was reimbursed for any lost pay.” 853 F.3d 763, 765, 767 (5th Cir. 2017). Cabral, of course, has
no relevance here because there is no indication Alston was reimbursed for the time he was suspended.

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Alston has established his prima facie case.
2. Legitimate Nonretaliatory Reason
MDOT argues “Plaintiff’s suspension was in response to Plaintiff’s consecutive failures to
follow his supervisor’s instructions and perform assigned work as directed often resulting in safety
concerns for follow coworkers.” Doc. #141 at 7. It is axiomatic that workplace misconduct is a
legitimate nonretaliatory reason for discipline. McCoy v. City of Shreveport, 492 F.3d 551, 560–
61 (5th Cir. 2007). Accordingly, the Court concludes that MDOT has satisfied its second-step
burden.
3.

Pretext

“In order to demonstrate pretext sufficient to defeat a motion for summary judgment, an
employee must produce evidence that could lead a reasonable fact-finder to conclude that the
adverse employment action would not have occurred but for the employee’s decision to engage in
an activity protected by Title VII.” Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 427 (5th Cir.
2017). Alston has offered absolutely no evidence or argument tending to show he was not
suspended for MDOT’s proffered reason—insubordination.11 His claim thus fails. Accordingly,
MDOT’s motion for summary judgment will be granted, and Alston’s motion for summary
judgment will be denied.
VII
Conclusion
As indicated above: (1) Alston’s motion to supplement his motion for sanctions [169] is
GRANTED; (2) “Plaintiff’s Second Motion to take Judicial Notice” [150] is DENIED as moot;
(3) “Plaintiff’s Motion to take Judicial Notice in Support of Plaintiff’s Response in Opposition to
11

In the absence of any evidence that Bidonne, the employee riding with Alston, heard the relevant instructions
regarding placement of signs, the fact that MDOT did not discipline Bidonne does not raise an issue of fact as to
pretext.

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Defendant’s Motion for Summary Judgment” [156] is DENIED as moot; (4) Alston’s motion for
sanctions [163] is DENIED; (5) Alston’s motion for leave to file a sur-reply [151] is GRANTED;
(6) MDOT’s motion for summary judgment [140] is GRANTED; and (7) Alston’s motion for
summary judgment [142] is DENIED. A final judgment will issue separately.
SO ORDERED, this 30th day of July, 2019.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

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