Alston v. Prairie Farms Dairy, Inc.
MEMORANDUM OPINION AND ORDER denying 41 Motion for Summary Judgment; granting 43 Motion for Summary Judgment; denying 52 Motion to Strike ; granting 53 Motion to Amend/Correct; denying 56 Motion ; denying as moot 61 Motion for Judgment as a Matter of Law; denying as moot 73 Motion to Continue; denying 83 Motion to Strike. Signed by District Judge Debra M. Brown on 4/16/18. (tab)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
PRAIRIE FARMS DAIRY, INC.
MEMORANDUM OPINION AND ORDER
Before the Court are the parties’ cross motions for summary judgment, Docs. #41, #43;
and a number of related motions filed by Jason Alston, Docs. #52, #53, #56, #61, #73, #83.
Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, “[s]ummary judgment is proper
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) (internal
quotation marks omitted). “When parties file cross-motions for summary judgment, [courts]
review each party’s motion independently, viewing the evidence and inferences in the light most
favorable to the nonmoving party.” Duval v. N. Assurance Co. of Am., 722 F.3d 300, 303 (5th Cir.
2013) (internal quotation marks omitted).
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) (alterations and internal quotation
marks 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.
(internal 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).
Jason Alston worked at the Mississippi Department of Transportation (“MDOT”) from
September 1, 2012, until October 26, 2015. Doc. #43-6; see Doc. #42 at 4. Alston’s supervisor at
MDOT was Martin Price. Doc. #42 at 4; Doc. #43-2 at 145. While employed by MDOT, Alston
filed at least one charge of discrimination with the EEOC.1 Doc. #41-4.
On October 5, 2015, Alston applied in-person to work at Prairie Farms. Doc. #44 at 2;
Doc. #48-1 at ¶ 5. He was interviewed by Brad Hutchison and Rodney Smith. Doc. #43-2 at 59;
Doc. #48-1 at ¶ 5. After interviewing Alston, Hutchison and Smith made the decision to hire
Alston. Doc. #43-2 at 60; Doc. #43-3 at ¶ 7. In accordance with Prairie Farms’ standard hiring
procedure, Hutchison contacted Price for an employment reference. Doc. #48-1 at ¶ 7. Price gave
Alston a “favorable reference indicating that he came to work on time and did not have a history
of excessive absences.” Doc. #43-4 at ¶ 10.
The number of EEOC charges Alston filed against MDOT is unclear. Although Alston states that he filed two
charges of discrimination against MDOT—one on June 10, 2015, and another on July 13, 2015, see Doc. #46 at 5—
the record contains only his July 13 charge. Doc. #41-4. Notably, in his July 13 charge, Alston represents that it is
his second charge of discrimination against MDOT. Id.
On October 26, 2015, Alston began working as a general laborer or “trailer man” in Prairie
Farms’ cooler where he loaded delivery trucks. Doc. #43-2 at 79; Doc. #48-1 at ¶ 4. Pursuant to
Prairie Farms’ collective bargaining agreement, Alston was “initially hired on a trial basis for the
first ninety (90) days of employment,” during which time “employees may be terminated in
[Prairie Farms’] sole discretion.” Doc. #43-1 at ¶ 8.
At Prairie Farms, Alston was trained and supervised by Donny Riley. Doc. #43-2 at 61,
80; Doc. #43-5 at ¶ 8. “Almost immediately” after Alston began working, Riley noticed that
Alston had trouble keeping up with his assignments and voiced this concern to Smith and
Hutchison. Doc. #43-5 at ¶ 9. Alston’s subpar work performance continued for nearly two weeks,
requiring Riley to help Alston load trucks to ensure on-time deliveries. Id. at ¶ 10. Riley, Smith,
and Hutchison all agreed that Alston was “not a good fit for the position” and, based on Riley’s
concerns and recommendations, Smith and Hutchison terminated Alston’s employment on
November 5, 2015. Id. at ¶ 12.
Subsequently, Alston filed a charge of discrimination against Prairie Farms with the EEOC
alleging that Price “insisted” that he quit working at MDOT and work for Price’s friend, Hutchison,
at Prairie Farms. Doc. #1-1 at 1.2 On September 30, 2016, Alston received a right to sue letter.
On December 13, 2016, Alston filed a complaint against Prairie Farms in the United States
District Court for the Northern District of Mississippi, alleging violations of Title VII and 42
Alston’s EEOC charge against Prairie Farms is not part of the summary judgment record but is attached to his
complaint, Doc. #1-1, and referenced by Alston in his summary judgment briefing, Doc. #46 at 6. See Olguin v.
Wathen, No. 7:02-cv-168, 2003 WL 22137482, at *1 (N.D. Tex. Sept. 16, 2003) (considering exhibits attached to
complaint on motion for summary judgment).
U.S.C. § 1981. Doc. #1. Prairie Farms answered the complaint on January 13, 2017. Doc. #5.
On November 3, 2017, Alston’s then counsel of record filed a motion to withdraw as his attorney,
which the Court granted on November 7, 2017. Doc. #38; Doc. #39. Since then, Alston has
proceeded pro se.
After a period of discovery, Alston moved for summary judgment on November 7, 2017.
Doc. #41. One week later, Prairie Farms moved for summary judgment. Doc. #43. On November
20, 2017, Alston responded to Prairie Farms’ motion for summary judgment, Doc. #45, and also
filed “Objections to Evidences and Declarations Submitted in Support of Defendant’s Motion for
Summary Judgment,” Doc. #47. Prairie Farms responded to Alston’s motion for summary
judgment on November 21, 2017. Doc. #48. On November 27, 2017, Alston filed a “Reply in
Further Opposition to Defendant’s Motion for Summary Judgment”3 Doc. #49, and Prairie Farms
replied in support of its summary judgment motion, Doc. #51.
Also on November 27, 2017, Alston moved to strike certain declarations and deposition
excerpts in Prairie Farms’ motion for summary judgment. Doc. #52. Prairie Farms responded to
the motion to strike on December 11, 2017. Doc. #58.
Thereafter, Alston filed a number of motions: on December 1, 2017, a motion to correct
two dates in his November 27 reply, Doc. # 53, and a motion for the Court to take judicial notice
of various documents, Doc. #56; on December 15, 2017, a motion for judgment as a matter of law,
Doc. #61; on March 19, 2018, a motion to continue trial, Doc. #73, and a motion for sanctions,
Doc. #74; and finally, on April 5, 2018, a motion to strike all of Prairie Farms’ responsive
pleadings and for entry of default judgment, Doc. #83.4 To date, with the exception of the motion
The Court construes this filing as a response in further opposition to Prairie Farms’ motion for summary judgment.
On April 13, 2018, Alston filed an “Early Reply” in support of his motion to strike and for default judgment. Doc.
#89. Because there is no response by Prairie Farms to which to reply, the filing will not be considered.
for sanctions, Prairie Farms has not responded to any of these motions.5 Alston’s motion for
sanctions was denied by separate order on April 13, 2018. Doc. #88.
Alston alleges his employment at Prairie Farms was terminated in retaliation for his filing
charges of race discrimination with the EEOC while employed at MDOT. Doc. #1 at 2.
A. Retaliation under Title VII and § 1981
A plaintiff may prove a claim of “retaliation either by direct or circumstantial evidence.”
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). When, as here, a plaintiff lacks
direct evidence of discrimination, he “may yet prevail … by providing circumstantial evidence
sufficient to raise an inference of discrimination. In such cases, courts apply the McDonnell
Douglas burden-shifting framework.” Thomas v. Johnson, 788 F.3d 177, 179 (5th Cir. 2015)
(internal citation omitted).
Under the McDonnell Douglas framework:
[T]he plaintiff must first demonstrate a prima facie case, and then the burden of
production shifts to the defendant to proffer a legitimate, nondiscriminatory reason
for its action. If it does that, the presumption of discrimination disappears. The
plaintiff, who always has the ultimate burden, must then produce substantial
evidence indicating that the proffered legitimate nondiscriminatory reason is a
pretext for discrimination.
Outley v. Luke & Assocs. Inc., 840 F.3d 212, 216 (5th Cir. 2016) (internal quotation marks and
“A plaintiff establishes a prima facie case of retaliation by showing (i) he engaged in a
protected activity, (ii) an adverse employment action occurred, and (iii) there was a causal link
Alston’s motion to correct two dates in his November 27 filing, Doc. # 53, is granted as unopposed. L.U. Civ. R.
7(b)(3)(E) (“If a party fails to respond to any motion, other than a dispositive motion, within the time allotted, the
court may grant the motion as unopposed.”).
between the protected activity and the adverse employment action.” Hernandez v. Yellow Transp.,
Inc., 670 F.3d 644, 657 (5th Cir. 2012).
“The elements of the claims under Title VII and 42 U.S.C. § 1981 are identical. [Courts]
therefore evaluate both claims using the same analysis.” Pratt v. City of Houston, Tex., 247 F.3d
601, 606 n.1 (5th Cir. 2001) (internal citation omitted).
B. Alston’s Motion for Summary Judgment
1. Alston’s motion for judicial notice of documents
Alston moves this Court to take judicial notice of (1) the missing pages of his deposition;
(2) a declaration of Timothy Lee; (3) a Mississippi Department of Employment Security
(“MDES”) determination decision; and (4) “Fact Finding [of] MDES.” Doc. #56. In support,
Alston asserts that judicial notice may be taken at any stage of the proceeding and states the
relevant standard under Federal Rule of Evidence 201. Id. at 2.
“The contents of a deposition are not a clearly established ‘fact’ and are therefore
inappropriate for judicial notice.” Roach v. Snook, No. 1:14-cv-583, 2014 WL 7467000, at *2 (D.
Or. Jan. 5, 2014) (citing In re Oracle Corp. Sec. Litig., 627 F.3d 376, 386 n.1 (9th Cir. 2010)).
Accordingly, the Court will not take judicial notice of any part of Alston’s deposition.
In the same vein, the contents of the declaration Alston wishes to have judicially noticed
are not facts generally known or from a source whose accuracy cannot reasonably be questioned.
See, e.g., N.D. ex rel. Parents Acting as Guardians Ad Litem v. Haw. Dep’t of Ed., 600 F.3d 1104,
1113 n.7 (9th Cir. 2010) (declarations must satisfy Federal Rule of Evidence 201 to be properly
judicially noticed). Accordingly, the Court also will not take judicial notice of the proffered
The two remaining documents—a “Fact Finding” printout from MDES’ website and an
MDES “Determination Decision”—are not subject to judicial notice because they have no bearing
on the operative facts of this case. Federal Rule of Evidence 201 governs “Judicial Notice of
Adjudicative Facts.” An adjudicative fact is a “controlling or operative fact, rather than a
background fact.” BLACK’S LAW DICTIONARY (10th ed. 2014). Alston has not explained, nor can
the Court conceive, how the two proffered documents relate to his retaliation claim.6 See, e.g.,
Allied Home Mortg. Capital Corp. v. Blues Alley Estates Ltd. P’ship, No. 2:06-cv-161, 2008 WL
11342878, at *1–2 (N.D. Miss. Sept. 9, 2008) (denying motion to take judicial notice because
underlying documents were not “controlling or operative facts to the issues presented”).
Accordingly, Alston’s motion for such documents to be judicially noticed will be denied.
In his summary judgment motion, Alston recounts the factual background of his claims
and contends that (1) Prairie Farms could have discussed his subpar work performance during a
telephonic hearing with MDES but that Prairie Farms never participated in the hearing and (2)
Prairie Farms refuses to release relevant video footage that would show his work performance.7
Doc. #42 at 5. Alston’s motion for summary judgment does not explicitly address any step of the
McDonnell Douglas framework.
Although Alston does not explicitly address any step of the McDonnell Douglas
The “Fact Finding” document appears to be a log of MDES’ attempts to contact Prairie Farms. See Doc. #56-2. The
“Determination Decision” states that Prairie Farms has “not shown that the claimant was discharged for misconduct
connected with the work … [and that Alston] is eligible for benefits.” Doc. #56-3.
Neither argument is relevant to Alston’s motion for summary judgment. The MDES transcript and accompanying
letter submitted in support of Alston’s motion for summary judgment reflect that the MDES administrative law judge
“determined that no hearing was necessary.” Doc. #41-1 at 1. Moreover, the determination of Alston’s unemployment
eligibility is irrelevant to his retaliation claim.
With regard to the alleged video footage, the discovery deadline in this action was October 23, 2017. Doc. #28. Under
Local Uniform Civil Rule 7(b)(2)(C), a “party must file a discovery motion sufficiently in advance of the discovery
deadline to allow response to the motion, ruling by the court and time to effectuate the court’s order before the
discovery deadline.” Accordingly, Alston’s discovery-related issues regarding the video footage are untimely and are
of no consequence to his motion for summary judgment.
framework, he sufficiently establishes the first two elements of his prima facie case of retaliation.
He engaged in a protected activity when he filed charges of discrimination against MDOT with
the EEOC. See 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for an
employer to discriminate against any of his employees … because he has made a charge … under
this subchapter.”). And, Alston’s termination is an adverse employment action. Pegram v.
Honeywell, Inc., 361 F.3d 272, 282–83 (5th Cir. 2004) (“Even under this court’s stringent ‘ultimate
employment action’ standard, it is beyond dispute that a termination constitutes an adverse
Alston fails, however, to establish the final element of his prima facie case—causation. In
seeking summary judgment, Alston contends that “[t]his case involves a former Superintendent
for MDOT who is now a current Prairie Farm Dairy employee conspiring with his good friend
Luvel Cooler Manager Mr. Hutchison to [h]ire and fire plaintiff from his General Cooler job at
Luvel.” Doc. #42 at 4–5. Beyond these conclusory allegations, Alston fails to identify portions
of the record that demonstrate how his termination at Prairie Farms and his EEOC charge against
MDOC are causally connected—as he, the moving party, must. Body by Cook, Inc. v. State Farm
Mut. Auto. Ins., 869 F.3d 381, 390 (5th Cir. 2017) (“Plaintiffs’ conclusory beliefs that Defendants
[were acting] in retaliation for Plaintiffs filing a lawsuit and complaining about racial
discrimination are inadequate to demonstrate a causal connection.”).
Because Alston has failed to satisfy his burden of establishing a prima face case, his motion
for summary judgment will be denied.
C. Prairie Farms’ Motion for Summary Judgment
In its motion for summary judgment, Prairie Farms argues that (1) Alston’s retaliation
claims under Title VII and § 1981 must fail because he cannot show a causal connection between
his protected activity and his termination and (2) the doctrine of judicial estoppel precludes Alston
from claiming he was dragooned into leaving MDOT for Prairie Farms. Doc. #44 at 7–10.
1. Alston’s evidentiary objections
As an initial matter, Alston objects to the declarations in Prairie Farms’ motion for
summary judgment because they have not been notarized. Doc. #52; see also Doc. #46 at 8; Doc.
#47 at 2. Federal Rule of Civil Procedure 56 permits the use of supporting declarations in a motion
for summary judgment. Such declarations need not be notarized so long as they are made “under
penalty of perjury” and are “true and correct.” 28 U.S.C. § 1746. All of the declarations to which
Alston objects conform to § 1746 by including the language, “I … affirm under penalty of perjury
that the foregoing is true and correct.” See Docs. #43-1, #43-3, #43-4, #43-5. Accordingly,
Alston’s objections to the declarations submitted in support of Prairie Farms’ motion for summary
judgment are overruled.
Additionally, Alston seeks to strike the excerpts of his deposition attached to Prairie Farms’
motion for summary judgment because the entire transcript of the deposition was not included,
which he argues is unfair. Doc. #52. Federal Rule of Civil Procedure 56 provides that parties may
support their factual positions by “citing to particular parts of materials in the record, including
depositions.” Fed. R. Civ. P. 56(c)(1)(A). There is no requirement that a party submit a complete
transcript of a deposition in support of its motion for summary judgment. Accordingly, Alston’s
motion to strike will be denied.
As discussed above, Alston has established the first two elements of a prima facie case of
retaliation—he undertook a protected activity and suffered an adverse employment action. Prairie
Farms argues that because Alston has failed to show a causal connection between his protected
activity and his termination, summary judgment should be granted in its favor.
At the prima facie stage of the McDonnell Douglas analysis, a plaintiff typically establishes
a causal connection between a protected activity and a subsequent adverse employment action
through temporal proximity. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). In
construing the temporal proximity requirement, the Fifth Circuit has held that a “two-and-a-halfmonth gap” between a protected activity and alleged retaliation is sufficiently close in time to
establish causation at the prima facie stage. Porter v. Houma Terrebonne Hous. Auth. Bd. of
Comm’rs, 810 F.3d 940, 948 (5th Cir. 2015). The Fifth Circuit has been reluctant to hold that
timeframes beyond two-and-a-half months, alone, are sufficient to establish prima facie causation.
Barkley v. Singing River Elec. Power Ass’n, 433 F. App’x 254, 260 & n.9 (5th Cir. 2011)
(collecting cases) (gaps of three, four, and five months, alone, held insufficient for prima facie
Alston’s most recent EEOC charge of discrimination against MDOT was filed on July 13,
2015. Doc. #41-4. The alleged retaliatory adverse action occurred on November 5, 2015, when
Prairie Farms terminated Alston’s employment. Doc. #43 at 141. Thus, the nearly four-month
gap between the filing of his EEOC charge of discrimination and his termination is, on its own,
insufficient to establish a causal connection between the two events. See Myers v. Crestone Int’l,
LLC, 121 F. App’x 25, 28–29 (5th Cir. 2005) (three-month gap insufficient to establish causal
nexus at prima facie stage).
Alston’s conclusory allegations regarding the alleged plot between Price and Hutchison
provide no support for establishing prima facie causation. Body by Cook, 869 F.3d at 390
(conclusory beliefs that defendants were retaliating against plaintiff inadequate to establish prima
facie causation); see Eberle v. Gonzales, 240 F. App’x 622, 629 (5th Cir. 2007) (“[Plaintiff’s]
subjective belief that he was retaliated against, without more, is not sufficient to survive summary
judgment.”). The summary judgment record reflects that Alston had previously applied to work
at Prairie Farms on at least six previous occasions because it was his “dream job.” Doc. #43-2 at
The record also establishes that he left MDOT because he was “constructively
discharge[d]” due to a hostile work environment, not because Price forced him to leave. Id. at 154.
Moreover, it was only after Alston applied for the job at Prairie Farms that Price told Alston that
it would be a good place for him to work. Id. at 105.
Accordingly, there is no record evidence establishing a causal connection between Alston’s
protected activity and his subsequent termination. Because Alston has failed to establish a prima
facie case of retaliation, Prairie Farms is entitled to summary judgment.
D. Alston’s Remaining Motions
Because Prairie Farms is entitled to summary judgment, Alston’s motion for judgment as
a matter of law and his motion to continue trial will be denied as moot.
In his April 5 motion to strike and for default judgment, Alston argues the Court should
strike all of Prairie Farms’ responsive pleadings and enter default judgment against it because
Prairie Farms “intentionally withheld and/or destroyed video surveillance footage” and violated
Federal Rule of Civil Procedure 11 by submitting a declaration of Smith in response to his March
19 motion for sanctions. Doc. #83 at 2–4. Specifically, Alston argues that Prairie Farms “act[ed]
with bad faith and commit[ed] fraud on this Court in presenting [the] Declaration of Rodney Smith
… [and] offer[ing] no proof that the cameras’ [sic] is just live feed and does not record.” Id. at 3.
During his deposition, Alston admitted that he did not know if the cameras were recording
or whether they merely showed a live feed, see Doc. #43-2 at 93; and he has not offered any
evidence that the video he seeks was recorded. Accordingly, his claim that Prairie Farms
committed fraud on the Court by submitting Smith’s declaration that the cameras in question
“maintained live-feed, closed circuit surveillance,” Doc. #79-1 at 1, must fail. See Fed. R. Civ. P.
11(c)(2) (motion for Rule 11 sanctions “must describe the specific conduct that allegedly violates
Rule 11(b)”) (emphasis added).
To the extent Alston seeks to strike Prairie Farms’ responsive pleadings on the basis that
that Prairie Farms withheld the purported video evidence, his request for such is untimely given
that the discovery deadline in this case expired over five months ago on October 23, 2017.8 With
regard to Alston’s assertion that Prairie Farms improperly destroyed relevant video footage, for
the “severest remedies,” like striking pleadings, the Fifth Circuit “require[s] a finding of bad faith
or willful misconduct.” Pressy v. Patterson, 898 F.2d 1018, 1021 (5th Cir. 1990). As discussed
above, Alston admitted that he does not know whether such video footage exists and offers no
evidence that it did exist or that Prairie Farms has acted in bad faith. Accordingly, to the extent
Alston seeks to strike Prairie Farms’ responsive pleadings based on his allegation that Prairie
Farms destroyed the purported video footage, the request must be denied. Because Alston has
demonstrated no basis to strike Prairie Farms’ pleadings, his request for entry of default judgment
based on them being stricken will be denied.
For the reasons above:
Alston’s motion  for summary judgment is DENIED;
Prairie Farms’ motion  for summary judgment is GRANTED;
Alston’s motion  to strike is DENIED;
See Doc. #28; see also note 7, supra.
Alston’s motion  to correct is GRANTED;
Alston’s motion  for judicial notice is DENIED;
Alston’s motion  for judgment as a matter of law is DENIED as moot;
Alston’s motion  to continue trial is DENIED as moot; and
Alston’s motion  to strike and for default judgment is DENIED.
SO ORDERED, this 16th day of April, 2018.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE
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