     Case: 19-60583      Document: 00515309395         Page: 1    Date Filed: 02/13/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 19-60583                         February 13, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
JASON D. ALSTON,

              Plaintiff–Appellant,

v.

MISSISSIPPI DEPARTMENT OF TRANSPORTATION,

              Defendant–Appellee.



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 4:16-CV-236


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
       In this pro se employment-discrimination case, Jason D. Alston appeals
the district court’s grant of summary judgment to the Mississippi Department
of Transportation (MDOT), as well as the denial of two other motions. We
AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 19-60583
                                            I
       Beginning in 2012, Alston worked for MDOT as a maintenance
technician. In March 2015, Alston filed an internal grievance against his
supervisor for allegedly placing a venomous snake on his work equipment and
for ordering another employee to make Alston siphon gas from a work truck. A
few months later, MDOT issued Alston a written reprimand for incorrectly
placing signs. Soon afterward, Alston filed a charge of racial and disability
discrimination with the Equal Employment Opportunity Commission. MDOT
asserts that Alston incorrectly placed signs again shortly afterward in June
2015. He received another written reprimand. After a third sign-placing
incident in September 2015, Alston was suspended for forty hours without pay
because MDOT found that he refused or resisted supervisor instruction and
failed to perform his assignments correctly. Alston resigned voluntarily in
October 2015 and filed a Title VII complaint against MDOT one month later,
alleging “unlawful race discrimination, disability discrimination, racial
harassment, hostile work environment and retaliation.” 1
       After Alston was thrice given leave to amend his complaint, he moved
for leave to file a summary-judgment motion before the motions deadline had
passed. The district court denied this motion on timeliness grounds. MDOT
moved for summary judgment soon afterward. Alston also moved for summary
judgment, and subsequently for sanctions against MDOT for stating the
elements of an Americans with Disabilities Act retaliation claim rather than a
Title VII claim in its summary-judgment materials. 2 The district court granted
MDOT’s motion and denied both of Alston’s. Alston appealed the denial of all
three motions.


       1 42 U.S.C. § 2000e-2(a)(1).
       2 MDOT correctly stated the Title VII standard in its other filings and attempted to
correct the record.
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                                       No. 19-60583
       We review a district court’s grant of summary judgment de novo,
“viewing all evidence in the light most favorable to the nonmoving party and
drawing all reasonable inferences in that party’s favor.” 3 As a corollary,
“[u]nsubstantiated assertions, improbable inferences, and unsupported
speculation are not sufficient to defeat a motion for summary judgment.” 4 We
review the denial of Alston’s other two motions under the abuse of discretion
standard. 5

                                              II
       The district court properly granted summary judgment against Alston
because he failed to meet his burden under McDonnell Douglas. 6 And the
district court did not abuse its discretion in denying Alston’s other motions.
                                              A
       Under the Supreme Court’s McDonnell Douglas framework, a Title VII
plaintiff must first set forth a prima facie case of discrimination. 7 In this case
alleging retaliation (the sole claim in Alston’s amended complaint), Alston
must show that (1) he engaged in activity protected under Title VII, (2) he
suffered an adverse employment action, and (3) a causal link exists between
his activity and the adverse action. 8 An adverse action that meets this
standard is one that “might have dissuaded a reasonable worker from making




       3 Wilson v. City of Southlake, 936 F.3d 326, 329 (5th Cir. 2019) (quoting Dediol v. Best
Chevrolet, 655 F.3d 435, 439 (5th Cir. 2011)).
       4 Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003).
       5 Edwards v. Cass County, 919 F.2d 273, 275 (motion for leave to file summary

judgment), Haase v. Countrywide Home Loans, Inc., 748 F.3d 624, 630 (5th Cir. 2014) (motion
for sanctions).
       6 MDOT states that “the McDonnell Douglas test applies to Title VII and ADA

retaliation claims.” We need not address this assertion, because Alston never makes a claim
under the ADA.
       7 McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973); see also Rogers v. Pearland

Ind. Sch. Dist., 827 F.3d 403, 408 (5th Cir. 2016).
       8 Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).

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                                       No. 19-60583
or supporting a charge of discrimination.” 9 If Alston is successful in making
this prima facie case, the burden shifts to MDOT to articulate a “legitimate,
nondiscriminatory reason” for its actions. 10 If MDOT offers such a reason, the
burden shifts back to Alston, who must show that MDOT’s proffered reason
“was merely a pretext for the real, retaliatory purpose.” 11 This means “the
plaintiff has the burden of proving that ‘but for’ the discriminatory purpose”
he would not have suffered the adverse action. 12
       We agree with the district court that Alston has made out a prima facie
case by showing that he was suspended without pay for “resisting management
directives . . . and/or failure or refusal to follow supervisor’s instruction [or]
perform     assigned      work.” 13     MDOT       then     articulated      a   legitimate,
nondiscriminatory basis for the adverse employment action: “Alston’s
insubordination was the cause for his suspension.” Alston must therefore offer
evidence that MDOT’s stated reason was mere pretext. 14 But Alston identifies
no such evidence, meaning he cannot carry his McDonnell Douglas burden.
                                              B
       We next address the district court’s denial of Alston’s motion for leave to
file a summary-judgment motion. Under Federal Rule of Civil Procedure 6(b),
the court may extend time “for good cause . . . on motion made after the time
has expired if the party failed to act because of excusable neglect.” 15 Yet Alston
filed this motion for leave on July 10, 2018—well before the district court’s


       9 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
       10 McDonnell, 411 U.S. at 802.
       11 Septimus v. Univ. of Hous., 399 F.3d 601, 608 (5th Cir. 2005).
       12 Id. (quoting Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004)).
       13 We previously found that a two-day suspension without pay where the plaintiff was

reimbursed did not constitute an “adverse action” that satisfied McDonnell Douglas. Cabral
v. Brennan, 853 F.3d 763, 767 (5th Cir. 2017). Because there is no indication Alston was ever
reimbursed, Cabral does not completely settle the matter before us.
       14 Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 427 (5th Cir. 2017).
       15 FED. R. CIV. P. 6(b)(1).

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                                      No. 19-60583
December 17, 2018 motions deadline. Alston thus had ample time to file his
motion for summary judgment, and his motion for leave was improperly timed.
       Courts abuse their discretion when their decision is “either premised on
an erroneous application of the law, or an assessment of the evidence that is
clearly erroneous.” 16 This district court did neither. “District courts must have
the power to control their dockets by holding litigants to a schedule.” 17 Denying
Alston’s untimely motion was well within this power. The district court thus
did not abuse its discretion.
                                             C
       Finally, Alston appeals the denial of his motion for sanctions. In that
filing, Alston seems to argue that MDOT’s attorneys should be sanctioned
under Federal Rule of Civil Procedure 11 for stating the standard for a prima
facie case under the ADA, rather than under Title VII, in MDOT’s original
memorandum in support of summary judgment.
       Before filing any documents, an attorney must (1) reasonably inquire
into the facts supporting it, (2) reasonably inquire into the law “such that the
document embodies existing legal principles or a good faith argument,” and (3)
refrain from filing documents “for purposes of delay, harassment, or increasing
costs of litigation.” 18 Violation of these duties is grounds for sanction. 19
       As stated above, we find an abuse of discretion when the lower court
clearly erred in applying the law or examining the facts. 20 Here, the district
court denied Alston’s motion because the standards for prima facie retaliation
claims under Title VII and the ADA are exactly the same. 21 Moreover, the court


       16 In re High Sulfur Content Gasoline Prods. Liab. Litig., 517 F.3d 220, 227 (5th Cir.
2008) (quoting Grigson v. Creative Artists Agency L.L.C., 210 F.3d 524, 528 (5th Cir. 2000).
       17 Shepherd v. City of Shreveport, 920 F.3d 278, 288 (5th Cir. 2019).
       18 Thomas v. Capital Sec. Serv., 836 F.2d 866, 873-74 (5th Cir. 1998).
       19 See FED. R. CIV. P. 11(c).
       20 See In re High Sulfur, 517 F.3d at 227.
       21 Feist v. Louisiana, 730 F.3d 450, 454 (5th Cir. 2013).

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                                  No. 19-60583
found that Rule 11 does not apply because MDOT corrected its alleged violation
in several filings prior to Alston’s motion for sanctions. Thus, the district court
observed, Alston’s motion “essentially seeks $100,000 for an inconsequential
typographical error.”
      We have no quarrel with this reasoning. The district court did not abuse
its discretion in denying Alston’s motion for sanctions.
                            *     *     *       *      *
      The judgment of the district court is AFFIRMED.




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