Alston v. Mississippi Department of Transportation

Filing 99

ORDER adopting re 93 REPORT AND RECOMMENDATIONS granting in part, denying in part re 82 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction filed by Mississippi Department of Transportation,. Signed by District Judge Debra M. Brown on 4/17/18. (tab)

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 employment discrimination action is before the Court on the Report and
Recommendation issued by United States Magistrate Judge Jane M. Virden regarding the
defendant’s motion to dismiss. Doc. #93.
I
Procedural History
On November 29, 2016, Jason D. Alston filed a complaint in this Court alleging that the
Mississippi Department of Transportation (“MDOT”), his former employer, subjected him to
“unlawful race discrimination, disability discrimination, racial harassment, hostile work
environment and retaliation.” Doc. #1 at 1. Approximately two months later, on January 9, 2017,
Alston, with leave of the Court, filed an amended complaint alleging the same claims. Doc. #21.
On July 28, 2017, Alston filed a second amended complaint with leave of the Court. Doc.
#64. Less than a month later, Alston, again with the Court’s leave, filed a third amended complaint
alleging retaliation in violation of Title VII of the Civil Rights Act. Doc. #70.
On November 10, 2017, the defendant moved to dismiss the third amended complaint for
failure to state a claim and lack of subject matter jurisdiction on the grounds that Alston failed to
exhaust his claims. Doc. #82. Alston responded in opposition to the motion, and the defendant
replied. Doc. #84; Doc. #88.

On January 2, 2018, United States Magistrate Judge Jane M. Virden issued a Report and
Recommendation recommending that the motion to dismiss be granted in part and denied in part.1
Doc. #93. Judge Virden recommended that the motion be granted with respect to Alston’s claim
based on a failure to promote, and that the motion be denied with respect to the claim based on an
allegedly retaliatory suspension. No party has objected to Judge Virden’s recommendations.
II
Analysis
Where objections to a report and recommendation have been filed, a court must conduct a
“de novo review of those portions of the … report and recommendation to which [a party]
specifically raised objections. With respect to those portions of the report and recommendation to
which no objections were raised, the Court need only satisfy itself that there is no plain error on
the face of the record.” Gauthier v. Union Pac. R.R. Co., 644 F.Supp.2d 824, 828 (E.D. Tex.
2009).
In the absence of objections, the Court has reviewed the Report and Recommendation for
plain error and has found none. Accordingly, the Report and Recommendation [93] is ADOPTED
as the order of the Court. The defendant’s motion to dismiss [82] is GRANTED in Part and
DENIED in Part. The motion is GRANTED to the extent it seeks dismissal of Alston’s failure
to promote claim for failure to state a claim.2 The motion is DENIED in all other respects.
SO ORDERED, this 17th day of April, 2018.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE
1

The introduction to the Report and Recommendation states only that the motion should be denied but the substance
of the document recommends granting in part and denying in part.

2

The Report and Recommendation does not state whether the failure to promote claim should be dismissed for failure
to state a claim or for lack of subject matter jurisdiction. However, because failure to exhaust before the EEOC is
non-jurisdictional, Flagg v. Stryker Corp., 819 F.3d 132, 142 n.3 & accompanying text (5th Cir. 2016) (Haynes, J.,
concurring in part), the proper ground for dismissal is for failure to state a claim.

2