Omobude v. Mississippi Department of Finance and Administration et al
Filing
67
Memorandum Opinion and Order granting 63 MOTION for Summary Judgment. A separate judgment will be entered. Signed by District Judge Tom S. Lee on 3/5/13 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
FRANK OMOBUDE
PLAINTIFF
VS.
CIVIL ACTION NO.: 3:10CV703TSL-FKB
MISSISSIPPI DEPARTMENT OF
FINANCE AND ADMINISTRATION,
KEVIN UPCHURCH, Executive Director;
CILLE LITCHFIELD, officially and individually;
CLYDE MURREL, officially and individually;
PERRY DUBARD, officially and individually;
and UNKNOWN JOHN DOES 1 - 5
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendant
Kevin Upchurch, in his official capacity, for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Plaintiff Frank Omobude has responded to the motion and the court,
having considered the memoranda of authorities, together with
attachments, submitted by the parties, concludes that the motion
is well taken and should be granted.
Pursuant to 42 U.S.C. § 1983, Omobude seeks reinstatement to
his employment with the Mississippi Department of Finance
Administration (MDFA) based on allegations he was terminated on
account of his race and/or as the result of retaliation for
complaints of harassment.
Defendant Upchurch seeks summary
judgment, arguing that plaintiff cannot establish a prima facie
case of discrimination or retaliation, but that even if he could,
he cannot establish pretext or show that race or retaliation was a
motivating factor in the decision to terminate plaintiff’s
employment.
Under the familiar McDonnell–Douglas burden–shifting
framework that governs § 1983 race discrimination claims, a
plaintiff challenging a failure to promote must first establish a
prima facie case, by proving that he was: (1) a member of a
protected group; (2) qualified for the position; (3) suffered some
adverse employment action; and (4) was treated less favorably than
a similarly situated employee outside the protected class or was
otherwise terminated because of a protected characteristic. See
Autry v. Fort Bend Independent School Dist., 704 F.3d 344, 347 (5th
Cir. 2013).
Once the plaintiff makes a prima facie case, the
burden then shifts to the employer to proffer a legitimate,
non-discriminatory reason for the employment action.
Id. If the
employer does so, the plaintiff must offer sufficient evidence to
create an issue of material fact that either the defendant’s
stated reason is not genuine, but is a pretext for discrimination
(the pretext alternative), or that the decision was based on
“mixed motives,” and that the defendant’s reason, while true, is
only one of the reasons for its conduct, and another “motivating
factor” is the plaintiff’s race (the mixed-motives alternative).
Id.
Plaintiff’s retaliation claim is also subject to the
McDonnell-Douglas analytical framework.
To establish a prima
facie case of retaliation, plaintiff must show that: (1) he
engaged in a protected activity; (2) his employer took an adverse
2
employment action against him; and (3) a causal connection exists
between the protected activity and the adverse employment action.
Gibson v. Verizon Servs. Organization, Inc., 2012 WL 5914256, 5
(5th Cir. Nov. 15, 2012).
The burden then shifts to the employer
to show a legitimate, non-discriminatory reason for the adverse
action, and if it does so, the plaintiff must show that the
proffered reason was a pretext or that the employer acted with
mixed motives.
Id.
Even if the court in this case were to assume that Omobude
could establish a prima facie case of race discrimination and/or
retaliation, his claims would fail as he has adduced no evidence
that would permit a reasonable jury to find that the reasons
offered by his former employer Mississippi Department of Finance
and Administration (MDFA) for terminating his employment are
pretextual, or that race or retaliation was a factor that
motivated MDFA’s decision.
Plaintiff was informed by letter in
January 2008 that a decision had been made to terminate his
employment based on findings that he had threatened violence
against his supervisor1 and had violated MDFA’s Telephone and
Information Technology Resources Policies and Procedures.
Plaintiff appealed the decision to the Mississippi Employee
Appeals Board (Board) which upheld the decision.
1
Initially,
Specifically, MDFA found that in October 2007, plaintiff
had commented to a coworker that he was so stressed he might bring
a gun to the workplace and shoot his supervisor.
3
following a hearing and review of reports by an independent
investigator hired by MDFA to investigate both Omobude’s own
allegations of hostile work environment and allegations of
misconduct by Omobude, the hearing officer found there was
substantial evidence to support Omobude’s termination based on the
alleged threat of workplace violence.
He found, in particular,
that although Omobude denied having made such a threat, MDFA had
to decide whom to believe and was justified in believing the
witness who reported Omobude’s threat.
The full Board affirmed
the hearing officer’s decision.
In his response to the present motion, plaintiff undertakes
to demonstrate that the reasons given by MDFA for his termination
are false and pretextual.
Toward that end, he asserts that in a
justice court proceeding initiated against him by his former
supervisor, the court deemed him not guilty of the charge of
threatening harm to his supervisor and found there was no evidence
that he made the alleged threat.
However, while the abstract of
justice court proceedings presented by plaintiff reflects a
judgment of not guilty, it does not indicate what evidence was
presented to the court and more specifically, does not reflect
that there was “no evidence” of a workplace threat.
In any event,
the relevant inquiry in this case is not Omobude’s guilt or
innocence of the charge that he made a threat of workplace
violence; rather the proper inquiry is whether MDFA believed that
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such a threat was made and terminated him for that reason.
Plaintiff has offered no evidence to suggest that this is not what
in fact occurred, and he thus has failed to demonstrate pretext.2
He has otherwise offered no evidence from which a jury might
reasonably infer that his race or retaliation was a motivating
factor in the decision to terminate his employment.
Accordingly,
his remaining claims for race discrimination and retaliation will
be dismissed.
Based on the foregoing, it is ordered that Upchurch’s motion
for summary judgment is granted.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 5th day of March, 2013.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
2
In his response, Omobude argues that MDFA was not
warranted in relying on the credibility assessment made by the
independent investigator who investigated Omobude’s alleged threat
against his supervisor since the investigator’s “objectivity is
questionable” and since he offered only “his view which was not in
many cases fact based but [was instead based on] his impressions
and perceptions.” However, plaintiff has offered no factual basis
for challenging the investigator’s objectivity. Moreover, as
evidenced by his detailed report, the investigator thoroughly
investigated the allegation against Omobude and made a complete
report to MDFA of his findings in which he explained in full the
reasons he found the allegation to be well-founded. Plaintiff has
not shown that MDFA was not justified in relying on the results of
the investigation and reaching a conclusion based, in whole or in
part, on the investigator’s reasoning.
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