Bankston v. Hinds County, Mississippi et al
Filing
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ORDER granting in part and denying in part 28 Motion for Summary Judgment for the reasons set out in the order. Signed by District Judge Daniel P. Jordan III on April 29, 2016. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
TIMOTHY T. BANKSTON
PLAINTIFF
v.
CIVIL ACTION NO. 3:15cv38-DPJ-FKB
HINDS COUNTY, MISSISSIPPI, et al.
DEFENDANTS
ORDER
This employment-discrimination case is before the Court on Defendants Hinds County,
Mississippi, and the Hinds County Board of Supervisors’ Motion for Summary Judgment [28].
For the reasons that follow, the motion is denied as to Plaintiff’s Americans with Disabilities Act
retaliation claim against Hinds County, Mississippi, but is otherwise granted.
I.
Facts and Procedural History
Plaintiff Timothy T. Bankston began his employment with Hinds County, Mississippi, as
a maintenance senior technician in 2011. In August 2014, Bankston sustained injuries in a nonwork-related accident and was off work for three days. He claims that, upon his return, Hinds
County “began to systematically discriminate against [him] . . . .” Am. Compl. [10] ¶ 15. As a
result, on September 3, 2014, Bankston filed a charge of discrimination with the Equal
Employment Opportunity Commission alleging discrimination under the ADA. Twenty days
later, on September 23, 2014, Hinds County terminated Bankston’s employment. Following his
termination, Bankston filed an amended EEOC charge on September 29, 2014, alleging
retaliatory termination.
Bankston filed this lawsuit against Hinds County and the Hinds County Board of
Supervisors on January 20, 2015. In his Amended Complaint, Bankston asserts claims for
discrimination under the ADA and retaliation under the ADA and Title VII. At the close of
discovery, on January 27, 2016, Defendants filed the instant summary-judgment motion [28].
The matters raised have been fully briefed, and the Court has personal and subject-matter
jurisdiction and is prepared to rule.
II.
Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil
Procedure when the evidence reveals no genuine dispute regarding any material fact and that the
moving party is entitled to judgment as a matter of law. The rule “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
The party moving for summary judgment “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.” Id. at 323. The
nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324 (citation omitted). Conclusory allegations,
speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute
for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash.,
276 F.3d 754, 759 (5th Cir. 2002); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
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III.
Analysis
In his response to Defendants’ motion for summary judgment, Bankston conceded his
claims against the Hinds County Board of Supervisors as well as the ADA discrimination claim
against Hinds County. The only claim before the Court, therefore, is Bankston’s retaliation
claim.1
“To establish a prima facie case of retaliation under the ADA . . . , a plaintiff must show
that (1) []he participated in an activity protected under the statute; (2) h[is] employer took an
adverse employment action against h[im]; and (3) a causal connection exists between the
protected activity and the adverse action.” Feist, 730 F.3d at 454. If the employee establishes a
prima facie case, the burden shifts to the employer “to state a legitimate, non-retaliatory reason
for its decision.” Id. (quoting LeMaire v. Louisiana, 480 F.3d 383, 388 (5th Cir. 2007)) (internal
quotation marks omitted). Once the employer articulates such a reason, “‘the burden shifts back
to the employee to demonstrate that the employer’s reason is actually a pretext for retaliation,’
which the employee accomplishes by showing that the adverse action would not have occurred
‘but for’ the employer’s retaliatory motive.” Id. (quoting LeMaire, 480 F.3d at 388–89)
(additional citation omitted).
1
Bankston purports to assert this claim under both Title VII and the ADA. But it is not
apparent that Plaintiff engaged in protected activity under Title VII when he filed a claim
alleging discrimination on the basis of disability with the EEOC. Cf. Cyr v. Perry, 301 F. Supp.
2d 527, 535 (E.D. Va. 2004) (“Title VII does not expressly authorize retaliation claims in
response to protected activity opposing age discrimination because it only makes it unlawful for
an employer to discriminate against an employee ‘because he has opposed any practice made an
unlawful employment practice by this subchapter.’” (quoting 42 U.S.C. § 2000e–3(a))).
Regardless, the analysis of retaliation claims under the two statutes is identical, see Feist v. La.
Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013), so the Court will
proceed under only the applicable statute—the ADA.
3
As to Bankston’s prima facie case, Hinds County concedes that “filing a charge of
discrimination with the EEOC constitutes a protected activity . . . .” Defs.’ Mem. [29] at 18. It
also appears to concede, as it must, that termination is an adverse employment activity. Id. at 20;
see Grubic v. City of Waco, 262 F. App’x 665, 667 (5th Cir. 2008). But Hinds County seems to
argue that Bankston cannot establish the requisite causal connection between the protected
activity and the termination. At the prima facie stage, the causation element may be satisfied by
showing close temporal proximity between the protected conduct and the adverse employment
action. See Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007). Here,
twenty days elapsed between the time Bankston filed his initial EEOC charge and the date his
employment was terminated. The Court concludes that this close temporal proximity satisfies
Plaintiff’s burden to establish causation at the prima facie stage. See, e.g., Porter v. Houma
Terrebonne Hous. Auth. Bd. Of Comm’rs, 810 F.3d 940, 948–49 (5th Cir. 2015) (finding sixweek gap between protected activity and adverse action sufficient to state prima facie case).
The burden therefore switches to Hinds County to articulate a legitimate, non-retaliatory
reason for terminating Bankston’s employment. Defendant has met that burden: it asserts that
Bankston violated its policy 6.20.7, “Workplace Conduct Violence-Free Workplaces,” which
precludes “conduct, verbal or physical, which intimidates, endangers, or creates the perception of
intent to harm persons or property.” Sept. 24, 2014 Letter [28-13]. In particular, Hinds County
points to an August 7, 2014, incident in which “Plaintiff barged into a[] . . . meeting of
maintenance department supervisors” and “engaged in a verbal exchange with [his supervisor,
Tommy] Rayford . . . .” Defs.’ Mem. [29] at 19. Hinds County contends that Bankston
“aggressively” interrupted the meeting, Defs.’ Resp. to Interrog. No. 9 [28-19] at 2, and that the
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exchange was “heated” and “loud.” Defs.’ Mem. [29] at 4. Hinds County also points to an
incident in which Bankston “behaved in an aggressive manner to the Hinds County Personnel
Director and thereafter threatened the County Administrator.” Id. at 20 (citing Davis Aff. [2818]); see Davis Aff. ¶¶ 4–5 (recounting that Bankston “behaved in an aggressive manner” to the
personnel director and was “irrational, hostile and would not allow [Davis] to speak” when she
reached out to him to “discuss [his] concerns”).2
Because Hinds County satisfied its burden of production, the burden returns to Bankston
to show that Defendant’s reasons are pretext for retaliation. “To carry this burden, the plaintiff
must rebut each . . . nonretaliatory reason articulated by the employer.” See McCoy v. City of
Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). The non-movant may also cite the temporal
proximity, provided it is not the only evidence of pretext. See Porter, 810 F.3d at 950 (holding
that “while temporal proximity alone is insufficient to prove but for causation in arguing pretext,
the less than seven-week space between [the protected activity] and [the adverse action] is
evidence suggesting pretext” (citation and internal quotation marks omitted)).
Plaintiff endeavors to meet his burden by offering evidence that the proffered reason for
terminating his employment—violation of the workplace-violence policy—is unworthy of
credence. Starting with the August 7 incident, Bankston’s deposition testimony contradicts the
assertion that he barged into and aggressively interrupted a supervisors’ meeting. According to
2
In its reply, Hinds County seems to assert an additional non-retaliatory reason for
terminating Bankston’s employment: that he walked off the job and refused to report for duty on
August 25, 2014. Defs.’ Reply [34] at 4. While this incident was mentioned in Hinds County’s
opening brief, it was not listed among the non-retaliatory reasons for Bankston’s discharge in
Defendant’s response to Plaintiff’s interrogatories. See Defs.’ Resp. to Interrog. No. 9 [28-19] at
2. It was likewise omitted when Defendant listed its non-retaliatory reasons in its opening
memorandum.
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him, the office in which the supervisors were meeting “was a walk-through office” employees
had to pass through to get to the secretary, and it was a “normal thing” for employees to do so.
Bankston Dep. [28-3] at 66. Bankston explains that as he was passing through the office that day,
Mr. Rayford said something to him, and he told Mr. Rayford that he was on his way to the
secretary “to find out the process of filing a grievance.” Id. at 66–67.
Bankston also takes issue with Defendant’s description of the tenor of the discussion,
pointing to deposition testimony in which he “denied that the [August 7] exchange was heated or
that he was loud.” Pl.’s Mem. [33] at 2 (citing Bankston Dep. [28-3] at 67). When asked
whether he raised his voice, Bankston replied, “[n]ot that I know of,” explaining that the
exchange “was talking just like you and I are talking.” Id. at 67. But defense counsel pressed
the point, asking whether he had “any sort of argument with Mr. Rayford . . . when [he] walked
through that area,” and Bankston responded, “[y]eah, we had a conversation. We, you
know—we—we—Mr. Rayford said some things. I said some things, you know. If I was loud,
he was loud, too, you know.” Id. at 69–70.
This testimony suggests that Bankston became loud, but he was terminated for being
threatening. Sept. 24, 2014 Letter [28-13]. And significantly, he notes that neither the initial
letter he received regarding the incident nor the written reprimand accused him of being
aggressive or threatening on August 7. Pl.’s Mem. [33] at 2 (citing Aug. 21, 2014 Letter [28-6]).
Instead, management faulted Bankston for “fail[ing] to comply with verbal instructions.” Aug.
21, 2014 Letter [28-6]. It did not accuse him of barging into the meeting, acting aggressively,
threatening others, or even being loud. See id. Finally, as to the accusation that he acted
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threateningly toward Hinds County personnel, Bankston testified “I did nothing violent. . . . I
wasn’t threatening to anybody.” Bankston Dep. [28-3] at 111.
Hinds County responds that Bankston “merely asserts the conclusory allegation that the
County’s reason for terminating him is a pretext without offering any competent summary
judgment evidence which supports the same.” Defs.’ Reply [34] at 5. But Bankston did offer
competent summary-judgment evidence supporting his assertion that Hinds County’s proferred
reason is false: his sworn deposition testimony. See C.R. Pittman Constr. Co., Inc. v. Nat’l Fire
Ins. Co. of Hartford, 453 F. App’x 439, 443 (5th Cir. 2011) (holding that a party’s “affidavit
based on personal knowledge and containing factual assertions suffices to create a fact issue,
even if the affidavit is arguably self-serving.”). And his testimony—when viewed in a light most
favorable him—creates a fact issue as to whether Bankston actually violated the only policy
Hinds County cited in its termination letter—the violence-free-workplace policy, 6.20.7.
Accordingly, Bankston has created a question of fact whether the proferred reason was
“unworthy of credence.” Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003). That issue,
coupled with the strength of the prima facie case, creates a question for a jury on Bankston’s
retaliation claim. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148–49 (2000).
Hinds County’s motion is therefore denied as to the ADA retaliation claim.3
3
This is admittedly a close call, but the Court notes that “[e]ven if the standards of Rule
56 are met, a court has discretion to deny a motion for summary judgment if it believes that ‘the
better course would be to proceed to a full trial.’” Firman v. Life Ins. Co. of N. Am., 684 F.3d
533, 538 (5th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1086)).
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IV.
Conclusion
The Court has considered all of the parties’ arguments. Those not directly addressed
would not have changed the outcome. For the foregoing reasons, Defendants’ Motion for
Summary Judgment [28] is granted as to the claims against the Hinds County Board of
Supervisors, as well as the ADA discrimination and Title VII retaliation claims against Hinds
County. The motion is denied as to the ADA retaliation claim against Hinds County.
SO ORDERED AND ADJUDGED this the 29th day of April, 2016.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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