Petition for Writ of Certiorari — Barbie Bassett, Petitioner v. Gray Media Group, Incorporated, dba WLBT-TV
Supreme Court briefSep 16, 2026
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No. 26In the
Supreme Court of the United States
BARBIE BASSETT,
Petitioner,
v.
GRAY MEDIA GROUP, INCORPORATED,
DOING BUSINESS AS WLBT-TV,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of A ppeals for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
Jim Waide
Counsel of Record
Waide & A ssociates, P.A.
332 North Spring Street
Tupelo, MS 38804
(662) 842-7324
waide@waidelaw.com
Counsel for Petitioner
September 16, 2026
121278
(800) 274-3321 • (800) 359-6859
i
QUESTION PRESENTED
Whether use of the McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), burden-shifting methodology is
the only way a plaintiff can survive a motion for summary
judgment in a Title VII employment discrimination case.
ii
PARTIES TO THE PROCEEDING
Barbie Bassett is the Plaintiff/Petitioner.
Gray Media Group, Incorporated, doing business as
WLBT-TV, is the Defendant/Respondent, and is a publicly
traded company on the New York Stock Exchange under
the ticker symbol GTN.
Petitioner Barbie Bassett is an individual. The
requirement for corporate disclosure statement is not
applicable.
iii
PROCEEDINGS RELEVANT TO THIS CASE
The proceedings relevant to this case are:
1. Barbie Bassett v. Gray Media Group, Inc., d/b/a
WLBT-TV, United States District Court for the Southern
District of Mississippi, Northern Division, Cause No.
3:23-cv-3154-DPJ-ASH, Final Order dated May 19, 2025.
2 . Ba r b i e Ba ss e t t v. G r a y Me di a G r o u p ,
Incorporated, doing business as WLBT-TV, in the United
States Court of Appeals for the Fifth Circuit, No. 2560278. The date of the Final Judgment is May 22, 2026.
The Order Denying Petition for Rehearing En Banc is
dated June 22, 2026.
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii
PROCEEDINGS RELEVANT TO THIS CASE . . . . iii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . 1
STATUTE INTERPRETED . . . . . . . . . . . . . . . . . . . . . . 1
FEDERAL RULE OF CIVIL PROCEDURE
CONSTRUED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3
FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
REASONS FOR GRANTING THE WRIT . . . . . . . . . . 7
v
Table of Contents
Page
1.
THE WRIT SHOULD BE GRANTED
TO DETERMINE WHETHER THE
MCDONNELL DOUGLAS BURDENSHIFTING METHODOLOGY IS THE
EXCLUSIVE WAY TO SURVIVE A
MOTION FOR SUMMARY JUDGMENT
IN A TITLE VII DISCRIMINATION
CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
vi
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT, FILED MAY 22, 2026 . . . . . . . 1a
APPENDIX B — ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF MISSISSIPPI,
NORTHERN DIVISION, FILED MAY 19, 2025 . . . 16a
A P P E N DI X C — O R D E R D E N Y I N G
R EH E A RI NG EN BA NC OF T H E
UNITED STATES COURT OF APPEALS
FOR T H E FI F T H CIRCU I T, FILED
JUNE 22, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44a
vii
TABLE OF CITED AUTHORITIES
Cases
Page
Ames v. Ohio Department of Youth Services,
605 U.S. 303 (2025) . . . . . . . . . . . . . . . . . . . . . . . . 11, 14
Arismendez v. Nightingale Home Health Care, Inc.,
493 F.3d 602 (5th Cir. 2007) . . . . . . . . . . . . . . . . . . . 7-8
Awe v. Harris Health Sys.,
163 F.4th 969 (5th Cir. 2026) . . . . . . . . . . . . . 12, 13, 14
Babb v. Wilkie,
589 U.S. 399 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Barrett v. Salt Lake County,
754 F.3d 864 (10th Cir. 2014) . . . . . . . . . . . . . . . . . . . 15
Berry v. Crestwood Healthcare LP,
84 F.4th 1300 (11th Cir. 2023) . . . . . . . . . . . . . . . . . . . 9
Bostock v. Clayton County, Georgia,
590 U.S. 644 (2000) . . . . . . . . . . . . . . . . . . . . . . 9, 18, 20
Brady v. Office of the Sergeant at Arms,
520 F.3d 490 (D.C. Cir. 2008) . . . . . . . . . . . . . . . 7, 9, 12
Etienne v. Spanish Lake Truck & Casino Plaza, LLC,
778 F.3d 473 (5th Cir. 2015) . . . . . . . . . . . . . . . . . . . . . 8
viii
Cited Authorities
Page
Hassen v. Ruston La. Hosp. Co., L.L.C.,
932 F.3d 353 (5th Cir. 2019),
as revised (Aug. 1, 2019) . . . . . . . . . . . . . . . . . . . . . . . . 8
Hittle v. City of Stockton, California,
604 U.S. —, 145 S.Ct. 759 (2025) . . . . . . . . . . . . . . 8, 11
Hollis v. Morgan State Univ.,
153 F.4th 369 (4th Cir. 2025) . . . . . . . . . . . . . . . . . . . 15
Holloway v. Procter & Gamble Manufacturing Co.,
— F.4th —, 2026 WL 2223873
(5th Cir. Aug. 3, 2026) . . . . . . . . . . . . . . . . . . . . . . . . . 13
Jenny v. L3Harris Techs., Inc.,
144 F.4th 1194 (10th Cir. 2025) . . . . . . . . . . . . . . . . . 15
Lee v. Russell Cmty. Board of Education,
684 F.2d 769 (11th Cir. 1982) . . . . . . . . . . . . . . . . . . . 10
McCreight v. AuburnBank,
117 F.4th 1322 (11th Cir. 2024) . . . . . . . . . . . . . . . . . . 10
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . . . . 4, 7-22
Nall v. BNSF Ry. Co.,
917 F.3d 335 (5th Cir. 2019) . . . . . . . . . . . . . . . . . . . . 12
Opara v. Yellen,
57 F.4th 709 (9th Cir. 2023) . . . . . . . . . . . . . . . . . . . . 10
ix
Cited Authorities
Page
Ossmann v. Meredith Corp.,
82 F.4th 1007 (11th Cir. 2023) . . . . . . . . . . . . . . . . . . 10
Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 20
Securities and Exchange Commission v. Jarkesy,
603 U.S. 109 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Shahrashoob v. Tex. A&M Univ.,
125 F.4th 641 (5th Cir. 2025) . . . . . . . . . . . . . . . . . . . . 8
Swierkiewicz v. Sorema,
534 U.S. 506 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Texas Dept. of Cmty. Affs. v. Burdine,
450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
Trans World Airlines, Inc. v. Thurston,
469 U.S. 111 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Tynes v. Fla. Dep’t of Juv. Just.,
88 F.4th 939 (11th Cir. 2023) . . . . . . . . . . . . . . . . 14, 15
Walton v. Powell,
821 F.3d 1204 (10th Cir. 2016) . . . . . . . . . . . . . . . . . . 16
Wells v. Colo. Dep’t of Transp.,
325 F.3d 1205 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . 16
x
Cited Authorities
Page
Statutes and Other Authorities
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
42 U.S.C. § 2000e-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
42 U.S.C. § 2000e-2(a)(1) . . . . . . . . . . . . . . . . . . . . . . . 1, 18
42 U.S.C. § 2000e-2(m) . . . . . . . . . . . . . . . . . . . . . . 2, 12, 14
42 U.S.C. § 2000e(m) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
42 U.S.C. § 2000e-5(g)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 2
42 U.S.C. § 2000e-5(g)(2)(B)(i) . . . . . . . . . . . . . . . . . . 3, 12
Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Fed. R. Civ. P. 30(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Fed. R. Civ. P. 56 . . . . . . . . . . . . . . . . . . . . . . . 11, 13, 15, 18
Fed. R. Civ. P. 56(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13
Katie Eyer in The Return of the Technical
McDonnell Douglas Paradigm, 94 Wash. L. Rev.
967 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Merriam-Webster.com, dictionary, MerriamWebster, https://www.merriam-webster.com . . . . . . . 5
xi
Cited Authorities
Page
Sandra F. Sperino, Flying Without a Statutory
Basis: Why McDonnell Douglas is Not Justified
by Any Statutory Construction Methodology,
43 Hou. L. Rev., 743 (2006) . . . . . . . . . . . . . . . . . . . . . 17
Timothy M. Tymkovich, The Problem with Pretext,
85 Denv. U.L.Rev. 503 (2008) . . . . . . . . . . . . . . . . . . . 16
1
OPINIONS BELOW
The unpublished Order of the United States District
Court granting summary judgment is found at 2025 WL
4741802 (S.D. Miss. 2025) and is attached as Appendix
B. The unpublished Opinion of the United States Court
of Appeals affirming the grant of summary judgment is
found at 2026 WL 1454209 (5th Cir. 2026) and is attached
as Appendix A.
The unpublished Order of the United States Court
of Appeals for the Fifth Circuit denying Petition for
Rehearing En Banc, decided on June 22, 2026, is attached
as Appendix C.
STATEMENT OF JURISDICTION
This Court has jurisdiction to review the decision of
the United States Court of Appeals for the Fifth Circuit
decided on May 22, 2026, petition for rehearing denied
on June 22, 2026, by Writ of Certiorari, under 28 U.S.C.
§ 1254(1).
STATUTE INTERPRETED
The Civil Rights Act of 1964, 42 U.S.C. § 2000e-2
provides:
(a)
Employer practices
It shall be an unlawful employment practice for
an employer—
(1) to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate
2
against any individual with respect to
his compensation, terms, conditions, or
privileges of employment, because of such
individual’s race, color, religion, sex, or
national origin; or
...
The Civil Rights Act of 1964 was amended by the Civil
Rights Act of 1991 which provides in 42 U.S.C. § 2000e-2:
(m) Impermissible consideration of race, color,
religion, sex, or national origin in employment
practices
Except as otherwise provided in this subchapter,
an unlawful employment practice is established
when the complaining party demonstrates that
race, color, religion, sex, or national origin was a
motivating factor for any employment practice,
even though other factors also motivated the
practice.
...
The Civil Rights Act of 1991 further provides in 42
U.S.C.§ 2000e-5(g)(2):
(B) On a claim in which an individual proves
a violation under section 2000e-2(m) of this
title and a respondent demonstrates that the
respondent would have taken the same action
in the absence of the impermissible motivating
factor, the court—
3
(i) may grant declaratory relief, injunctive
relief (except as provided in clause (ii)), and
attorney’s fees and costs demonstrated to
be directly attributable only to the pursuit
of a claim under section 2000e-2(m) of this
title; and
...
FEDERAL RULE OF CIVIL PROCEDURE
CONSTRUED
Federal Rule of Civil Procedure 56(a) provides:
(a) Motion for Summary Judgment or
Partial Summary Judgment. A party may
move for summary judgment, identifying each
claim or defense—or the part of each claim
or defense—on which summary judgment
is sought. The court shall grant summary
judgment if the movant shows that there is no
genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of
law. The court should state on the record the
reasons for granting or denying the motion.
STATEMENT OF THE CASE
Respondent Gray Media Group d/b/a WLBT-TV fired
news anchor Petitioner Barbie Bassett, who is white,
because she used words the television station deemed
politically incorrect during on-air broadcasts. Those words
would have been tolerated by WLBT if they had been used
by a black person. Bassett filed suit in the United States
4
District Court for the Southern District of Mississippi,
for race discrimination in violation of the Civil Rights Act
of 1964. The district court granted summary judgment
holding that Bassett had not established the elements
of the McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) burden-shifting methodology as required by the
Fifth Circuit Court of Appeals. Appendix B. The Fifth
Circuit affirmed the grant of summary judgment holding
a plaintiff cannot survive summary judgment unless she
meets the McDonnell Douglas burden-shifting elements.
Appendix A. Bassett requests review for this Court to
decide a conflict between the circuits and among federal
judges as to whether meeting the McDonnell Douglas
elements is the only way a plaintiff may survive a motion
for summary judgment in a Title VII case.
FACTS
Barbie Bassett worked for WLBT for two (2) decades
as a news reporter, news anchor, and chief meteorologist.
Bassett was a “hard worker,” and was “warm,” and
“loving.” Bassett was a “great anchor.”
Bassett’s firing arose from her using on air, on two
(2) separate occasions, words which WLBT claims, and
Bassett denies, were racially disparaging of black people.
On October 28, 2022, Bassett, who is white, was
engaged in on-air banter with her fellow WLBT reporter,
Carmen Poe, who is black. During this banter, Bassett
referred to Poe’s “grand mammy.” Bassett calls her own
grandmother by the name “grand mammy,” and would
never use a racist term for her own grandmother.
5
Bassett’s immediate supervisor, News Director
Charles Jones, did not know the meaning of the word
“grand mammy,” at the time. He later decided that the
term has a “history of a disrespectful connotation to a
large group of people.”
When Bassett learned the term was offensive to black
viewers, she immediately called Poe to apologize and told
management she wanted to apologize on air for the use
of the term.
The Merriam-Webster Dictionary defines “grand
mammy” as “grandmother.” Merriam-Webster.com,
dictionary, Merriam-Webster, https://www.merriamwebster.com. “The Content Authority” “Grand Mammy
versus Grandmother: Decoding Common Word Mix Up,”
says: “Grand mammy is a term often more commonly used
in the Southern United States and is often associated
with a warm and affectionate relationship. . . On the other
hand, grandmother is a more formal term that is used
throughout the English speaking world.”
The second phrase which WLBT claimed had a
disrespectful racial connotation was used by Bassett on
March 8, 2023. On that day, Bassett was reading a story
from the teleprompter about a new wine being promoted
by Snoop Dogg, a popular black artist. After reading about
Snoop Dogg’s new wine on air, Bassett used the phrase “fo
shizzle, my nizzle,” quoting Snoop Dogg’s famous tag line.
At commercial break, a black anchor, Patrick Ellis,
told Bassett that the term “fo shizzle, my nizzle,” means
the “N” word. Bassett denied any racial meaning and
explained that the term “fo shizzle, my nizzle,” means
6
“for real, my friend,” or “for real, my brother.” Wilson
Stribling, a white co-anchor with whom Bassett was
bantering, agreed with Bassett that the term “fo shizzle,
my nizzle” does not mean the “N” word.
News Director Jones testified that he had never heard
the phrase, “fo shizzle, my nizzle,” but admitted that two
(2) black WLBT employees told him the phrase meant
“my nigga.” After doing research himself, Jones found
that the phrase has alternative meanings, one being “for
real, my brother.”
Like News Director Jones, General Manager, Ted
Fortenberry, also did not know what the phrase, “fo
shizzle, my nizzle,” means. However, Pam Confer, who
is black and worked for the station as a consultant, told
Fortenberry that the term has a racial connotation.
Fortenberry accepted Confer’s definition. Fortenberry
also discussed the term with human resources director
Sharel Bend, who is black. Bend claimed the phrase
included the “N” word but also admitted an internet
search showed multiple non-discriminatory meanings.
When Bassett refused to resign, WLBT fired her.
News Director Jones and Human Resources Director
Bend both testified that Fortenberry made the decision
to fire Bassett. Fortenberry testified that “the group,”
decided to fire Bassett.
WLBT contends the station first offered Bassett’s
position to a white person. When the white person declined
the job, WLBT then hired a black person in Bassett’s
place.
7
REASONS FOR GRANTING THE WRIT
1. T H E W R I T SHOU L D BE GR A N T ED T O
DETERMINE WHETHER THE MCDONNELL
DOUGLAS BURDEN-SHIFTING METHODOLOGY
IS THE EXCLUSIVE WAY TO SURVIVE A
MOTION FOR SUMMARY JUDGMENT IN A
TITLE VII DISCRIMINATION CASE.
Both the United States District Court for the
Southern District of Mississippi and the Fifth Circuit
Court of Appeals hold that Fifth Circuit precedent
dictates that the McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) burden-shifting methodology is the only
way a plaintiff can survive summary judgment in a Title
VII race discrimination case.
McDonnell Douglas Corp. v. Green holds that a judge
may determine that race discrimination had occurred if
he finds that the plaintiff made a prima facie case, that
the defendant articulated a legitimate non-discriminatory
reason, but that the plaintiff proved that the reason
articulated is pretextual. In rejecting Bassett’s argument
that the McDonnell Douglas test should not be used in
this summary judgment case, the district judge wrote:
Bassett urged the Court to adopt Brady v.
Office of the Sergeant at Arms, a D.C. Circuit
opinion stating “that inquiry into the prima
facie case is usually misplaced.” 520 F.3d 490,
493 (D.C. Cir. 2008) (Kavanaugh, J.). The
Fifth Circuit has expressly rejected Brady as
“foreclosed by our precedent.” Arismendez v.
Nightingale Home Health Care, Inc., 493 F.3d
8
602, 607 (5th Cir. 2007); see also Shahrashoob
v. Tex. A&M Univ., 125 F.4th 641, 649 (5th Cir.
2025).
Second, Bassett maintains that McDonnell
Douglas is no longer viable considering cases
like Reeves. 530 U.S. at 143, 120 S.Ct. 2097.
That’s wrong, at least for now. True enough,
some Supreme Court justices have signaled
their displeasure with McDonnell Douglas. For
example, in Hittle v. City of Stockton, Justice
Thomas (joined by Justice Gorsuch) dissented
from the denial of certiorari, believing the Court
should revisit McDonnell Douglas. — U.S. —,
145 S. Ct. 759, 221 L.Ed.2d 425 (2025). But
the Supreme Court has yet to unravel the
McDonnell Douglas burden-shifting analysis.
Thus, the Fifth Circuit has repeatedly held
that this analysis “must” be followed in
circumstantial cases under Title VII. Etienne
v. Spanish Lake Truck & Casino Plaza, LLC,
778 F.3d 473, 475 (5th Cir. 2015) (holding that
“[i]f the plaintiff presents only circumstantial
evidence, then she must prove discrimination
inferentially using the three-step McDonnell
Douglas” burden-shifting framework) (citation
omitted); accord Hassen v. Ruston La. Hosp.
Co., L.L.C., 932 F.3d 353, 356 (5th Cir. 2019), as
revised (Aug. 1, 2019).
Appendix B, Bassett, 2025 WL 4741802 at *3, *4.
9
The Fifth Circuit affirmed the district court’s
reasoning, writing:
Bassett argues that the district court erred
in applying the McDonnell Douglas burdenshifting framework to evaluate her Title VII
claims “simply because [it] found the case
presented only circumstantial and not direct
evidence.” 2 She asserts that, under Brady v.
Office of Sergeant at Arms, 520 F.3d 490 (D.C.
Cir. 2008), and Bostock v. Clayton County, 590
U.S. 644 (2020), the district court should have
instead evaluated “only whether there was
sufficient evidence to demonstrate that race was
a motivating factor in Bassett’s termination.”
We disagree.
This court has made clear that McDonnell
Douglas applies in Title VII discrimination
cases relying on circumstantial evidence, even
at the summary-judgment stage . . .
Because this is a circumstantial evidence
case, and this court has consistently rejected
Bassett’s arguments to set aside McDonnell
Douglas, the district court did not err in
applying that framework here.
Appendix A, Bassett v. Gray Media Group, 2026 WL
1454209 at *3, *4 (5th Cir. 2026).
In addition to the D.C. Circuit’s disagreeing with the
Fifth Circuit in Brady, the Eleventh Circuit disagreed
with the Fifth Circuit in Berry v. Crestwood Healthcare
LP, 84 F.4th 1300, 1310 (11th Cir. 2023), as follows:
10
For decades we have explained that the
McDonnell Douglas framework “is not the
exclusive means” by which an employee can
prove discrimination with circumstantial
evidence. Lee v. Russell Cmty. Board of
Education, 684 F.2d 769, 773 (11th Cir. 1982);
accord, Lockheed Martin, 644 F.3d at 328.
The Eleventh Circuit explained in Ossmann v.
Meredith Corp., 82 F.4th 1007, 1015-1020 (11th Cir. 2023),
that a race discrimination claim may be proved utilizing
a “convincing mosaic” of circumstantial evidence as an
alternative to satisfying the third step of McDonnell
Douglas.
Subsequently, McCreight v. AuburnBank, 117 F.4th
1322, 1335 (11th Cir. 2024), described the “convincing
mosaic approach” as a “helpful reminder that McDonnell
Douglas is not the only game in town.”
The Ninth Circuit joins the Eleventh Circuit and the
D.C. Circuit in disagreeing with the Fifth Circuit’s view
that one must use the McDonnell Douglas approach in
deciding a summary judgment motion in a Title VII
discrimination case. Opara v. Yellen, 57 F.4th 709, 721
(9th Cir. 2023), holds:
“When responding to a summary judgment
motion” in a discrimination suit, under ADEA or
Title VII, the plaintiff “may proceed by [either]
using the McDonnell Douglas framework,” as
established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct 1817, 36 L. Ed.
2d 668 (1973), “or, alternatively, may simply
11
produce direct or circumstantial evidence
demonstrating that a discriminatory reason
more likely than not motivated the defendant’s
contested conduct.”
The circuits which disagree with the Fifth Circuit
align with Swierkiewicz v. Sorema, 534 U.S. 506 (2002). In
the course of reversing the grant of a Rule 12(b)(6) motion
to dismiss, Swierkiewicz wrote that “the McDonnell
Douglas framework does not apply in every employment
discrimination case.” 534 U.S. at 511.
In Ames v. Ohio Department of Youth Services, 605
U.S. 303 (2025), and Hittle v. City of Stockton, California,
604 U.S. —, 145 S.Ct. 759 (2025), Justice Thomas has
argued the Supreme Court should accept a case to consider
overruling lower court precedent which requires that
McDonnell Douglas be utilized at the summary judgment
stage. Justice Thomas wrote that requiring McDonnell
Douglas to be utilized at the summary judgment stage
has no basis in the text of Title VII, and that the usage is
“incompatible with the summary-judgment standard set
forth in Federal Rule of Civil Procedure 56.” Ames, 605
U.S. at 322 (Thomas, J., concurring).
When McDonnell Douglas was decided, there was no
jury trial available. The McDonnell Douglas methodology
was designed for use by a judge to determine whether
discrimination occurred. Hittle, 145 S.Ct. at 761 (Thomas,
J, dissenting from the denial of certiorari).
Nearly two decades after McDonnell Douglas was
decided, Congress enacted the Civil Rights Act of 1991. It
amended the Civil Rights Act of 1964 to allow a plaintiff
12
to prevail if race was one motivating factor in the decision,
even though other factors may have also contributed. 42
U.S.C. § 2000e-2(m). Additionally, a plaintiff can obtain
nonmonetary relief if there were race discrimination, even
if the employer would have made the decision even in the
absence of the discrimination. 42 U.S.C. § 2000e-5(g)(2)(B)
(i). Thus, under the 1991 Amendments to the Civil Rights
Act of 1964, even if a plaintiff fails to show the defendant’s
articulated reasons were pretextual, a plaintiff can still
prevail.
Several Fifth Circuit judges agree that McDonnell
Douglas should be repudiated as the exclusive way
to decide a race discrimination case at the summary
judgment stage. Their opinions largely reflect Judge
(now Justice) Kavanaugh’s opinion in Brady, which
described the prima facie case requirement as “a largely
unnecessary sideshow.” Brady, 520 F.3d at 494.
Judge Gregg Costa wrote in Nall v. BNSF Ry. Co.,
917 F.3d 335, 351 (5th Cir. 2019), that applying McDonnell
Douglas at the summary judgment stage is inappropriate
and described McDonnell Douglas as a “judge-created
doctrine” which has been widely criticized for its
inefficiency and unfairness. Judge Costa further wrote
that “McDonnell Douglas is not the be-all and end-all of
proving discrimination.” Nall, 917 F.3d at 352 (Costa, J.,
concurring).
Chief Judge Jennifer Walker Elrod agreed with
Judge Costa in Awe v. Harris Health System, 163 F.4th
969 (5th Cir. 2026). Judge Elrod described the Fifth
Circuit’s applying the McDonnell Douglas standard at
the summary judgment stage as “foreign to both Title VII
13
and Rule 56,” and stated this “court put[s] on blinders,”
to the “various ways in which a plaintiff could prove his
claim.” Awe, 163 F.4th at 975.
In a concurring opinion, Judge James Ho recently
wrote in Holloway v. Procter & Gamble Manufacturing
Co., — F.4th — , 2026 WL 2223873 *5 (5th Cir. Aug. 3,
2026):
McDonnell Douglas was originally designed for
courts to use in bench trials. But the framework
has since been employed in the summary
judgment context, despite the fact that the
Court has never held that McDonnell Douglas
is appropriate for use at summary judgment.
See id. at 320–21, 145 S.Ct. 1540 (quotations
omitted).
That’s troubling, because McDonnell Douglas
is hard to square with Rule 56 of the Federal
Rules of Civil Procedure. “Rule 56(a) requires
a court to grant summary judgment when the
movant establishes that there is ‘no genuine
dispute as to any material fact and the movant
is entitled to judgment as a matter of law.’” Id.
at 322, 145 S.Ct. 1540 (quoting Fed. R. Civ. P.
56(a)). So Rule 56 only requires the plaintiff to
present sufficient evidence to create a genuine
dispute as to any material fact. McDonnell
Douglas, by contrast, requires the plaintiff to
prove a prima facie case of discrimination by a
preponderance of the evidence. See, e.g., Texas
Dept. of Cmty. Affs. v. Burdine, 450 U.S. 248,
252–53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
14
As a result, McDonnell Douglas “requires
a plaintiff to prove too much at summary
judgment.” Ames, 605 U.S. at 323, 145 S.Ct.
1540 (Thomas, J., concurring). See also, e.g.,
Awe v. Harris Health Sys., 163 F.4th 969, 976
(5th Cir. 2026) (Elrod, C.J., concurring) (same).
That’s not all. McDonnell Douglas also requires
a plaintiff to prove that “the legitimate reasons
offered by the defendant were not its true
reasons, but were a pretext for discrimination.”
Burdine, 450 U.S. at 253, 101 S.Ct. 1089. But
once again, “[t]hat requirement demands more
than the text of Title VII.” Ames, 605 U.S. at
323, 145 S.Ct. 1540 (Thomas, J., concurring).
Under Title VII, “a plaintiff need not establish
that the employer’s stated reason for its action
was wholly pretextual. A plaintiff could prevail
even if the employer’s stated reason was part
of the reason for the employer’s action.” Ames,
605 U.S. at 323–24, 145 S.Ct. 1540 (Thomas,
J., concurring) (emphasis in original). See
also 42 U.S.C. § 2000e–2(m) (“[A]n unlawful
employment practice is established when the
complaining party demonstrates that race,
color, religion, sex, or national origin was a
motivating factor for any employment practice,
even though other factors also motivated the
practice.”) (emphasis added).
The McDonnell Douglas prima facie case requirement
has caused “continuing confusion.” Tynes v. Fla. Dep’t of
Juv. Just., 88 F.4th 939, 945 (11th Cir. 2023). This confusion
15
is especially evident in this case, where WLBT contends
it first offered Bassett’s position to a white person
before filling it with a black person, and where WLBT’s
articulated reason (that Bassett said, “grand mammy”
and “fo shizzle, my nizzle”) is true. The prima facie case
plus pretext analysis of McDonnell Douglas does not help
decide whether WLBT discriminated by firing Bassett
when the station would not have fired a black anchor for
using the same words.
Concurring in Tynes, Judge Kevin Newsom has
written that “perhaps worst of all,” the use of the
McDonnell Douglas prima facie requirement “obscures
the actual Title VII inquiry, especially at summary
judgment.” Tynes, 88 F.4th at 953. Bassett’s case proves
Judge Newsom’s point.
Concurring in Jenny v. L3Harris Techs., Inc., 144
F.4th 1194, 1202 (10th Cir. 2025), Judge Allison Eid has
written that utilizing McDonnell Douglas at the summary
judgment stage “demands too much of plaintiffs.” Judge
Marvin Quattlebaum, concurring in Hollis v. Morgan
State Univ., 153 F.4th 369, 391 (4th Cir. 2025) has written
that utilizing McDonnell Douglas at the summary
judgment stage “imposes a higher burden than Federal
Rule of Civil Procedure 56 requires,” and that utilizing
the doctrine is “unnecessarily complex.”
Judge (now Justice) Gorsuch summarized in Barrett
v. Salt Lake County, 754 F.3d 864, 867 (10th Cir. 2014):
Some of our colleagues have . . . questioned
whether McDonnell Douglas, even if now
relegated largely to summary judgment,
16
continues to be helpful enough to justify
the costs and burdens associated with its
administration. See, e.g., Wells v. Colo. Dep’t
of Transp., 325 F.3d 1205, 1224-28 (10th Cir.
2003) (Hartz, J., writing separately); Timothy
M. Tymkovich, The Problem with Pretext, 85
Denv. U.L.Rev. 503, 528-29 (2008).
In Walton v. Powell, 821 F.3d 1204, 1211 (10th Cir.
2016), Judge (now Justice) Gorsuch wrote that “more
than a few keen legal minds have questioned whether the
McDonnell Douglas game is worth the candle, even in
the Title VII context.”
In fact, Judge Gorsuch has implied that the overuse
of summary judgment is already diminishing the rightful
place of the jury trial. In Walton, he also wrote:
Yes, today motions practice, and especially
summary judgment motions practice, seems
to have assumed a place near the center of
the legal universe: almost no one makes it to
trial anymore. With that development surely
comes a strong temptation to anoint summary
judgment with unique significance and adorn
it with special rules and procedures. But the
truth is summary judgment was supposed to be
that—summary. Not a maddening maze. Not a
paper blizzard. Not a replacement for the trial
as the preferred means for resolving disputes.
Walton, 821 F.3d at 1212.
17
The Fifth Circuit rule is that a plaintiff can survive
summary judgment only by hurdling the McDonnell
Douglas obstacle. According to the Fifth Circuit, there
is one and one way only to survive summary judgment
in a Title VII case. That way is to satisfy the McDonnell
Douglas burden-shifting methodology. Making McDonnell
Douglas the only way to survive summary judgment
negates the purpose of McDonnell Douglas which is to
give plaintiff “his day in court despite the unavailability of
direct evidence.” Trans World Airlines, Inc. v. Thurston,
469 U.S. 111, 121 (1985).
Katie Eyer in The Return of the Technical McDonnell
Douglas Paradigm, 94 Wash. L. Rev. 967, 969 (2019),
writes:
And indeed, scholars have argued for years
that the McDonnell Douglas paradigm has
become deeply flawed. Relying on a hypertechnical version of the McDonnell Douglas
paradigm, the lower courts routinely refuse
to allow discrimination cases to reach a jury.
Such analyses rarely focus on the factual
question of whether or not discrimination
occurred, substituting technical rules for fair
consideration of whether discrimination took
place (or whether a reasonable jury could so
conclude).
Sandra F. Sperino in Flying Without a Statutory
Basis: Why McDonnell Douglas is Not Justified by Any
Statutory Construction Methodology, 43 Hou. L. Rev.,
743, 801 (2006), writes:
18
In evaluating claims of discrimination under
Title VII, courts should simply use the standard
enunciated in the statutory text itself. In other
words, when considering whether a plaintiff has
presented enough evidence to proceed to trial
or to prevail at trial, the decisionmaker would
determine whether there is sufficient evidence
to demonstrate “that race . . . was a motivating
factor for any employment practice.”
If courts followed Federal Rule of Civil Procedure
56 and applied the statutory language of the Civil Rights
Act of 1964, deciding motions for summary judgment
would be simple. Are there issues of material fact as to
whether WLBT discriminated against Bassett? If WLBT
fired Bassett for using certain words, but would not have
fired a black person who used the same words, then
WLBT discriminated. This is the practice made unlawful
by 42 U.S.C. § 2000e-2(a)(1). The normal definition of
discrimination is “differential treatment.” Babb v. Wilkie,
589 U.S. 399, 405 (2020).
The McDonnell Douglas inquiry in this case distracts
from the real issue, which is whether the defendant
discriminated by “firing (petitioner) for actions or
attributes it would tolerate in an individual of another
[race].” Bostock v. Clayton County, GA, 590 U.S. 644,
658 (2000).
General Manager, Fortenberry, testified as to Rule
30(b)(6) corporate representative for WLBT:
Q. All right. Is it racist for Snoop Dog to use
the term fo shizzle my nizzle? Is that racist if
he uses it?
19
MS. HODGES: Object to form. You can
answer if you know.
A. Well, I don’t know if it’s—I know that there
are things that some people can say that are
not considered to be inappropriate based on
who they are and their background compared
to other people. In today’s world, that’s the way
it works.
Q. (Mr. Waide) Well, let’s be more specific. Do
you mean by that that there’s some things that
black people can say that white people can’t say?
A.
Absolutely.
Fortenberry backtracked his answer by testifying that
using the phrase “fo shizzle, my nizzle,” was not something
anyone would want to say on air “whether you’re black or
white.” And in still a third answer, Fortenberry testified
that he did not know whether or not he would have fired
a black person for using the same language as Bassett.
In a futile attempt to persuade the reader that making
McDonnell Douglas the exclusive way to avoid summary
judgment is harmless, the Fifth Circuit decided to credit
that portion of WLBT’s (Fortenberry’s) testimony which
favored the station, the movant. Specifically, the Fifth
Circuit wrote:
First, Fortenberry’s deposition testimony is not
sufficient to create a genuine factual dispute.
As the district court found, Fortenberry did not
admit discrimination. Rather, when speaking
20
specifically about the Phrase, Fortenberry said
it was “certainly not something you want to say
on the air whether you’re [B]lack or [W]hite.”
He also made it clear that “on [WLBT,] there
are things [employees] can’t say regardless of
their race.”
Appendix A, Bassett, 2026 WL 1454209 at *5.
This attempt to justify the grant of summary judgment
is a self-evident refusal to follow Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 151 (2000). Reeves
requires a court to “disregard all evidence favorable to
the nonmoving party that the jury is not required to
believe,” and to “give[] credence to the evidence favoring
the nonmovant.” Reeves, 530 U.S. at 151. Instead of
crediting WLBT’s (Fortenberry’s) testimony that there
are “absolutely” some things that black people can say
that white people can’t say, the Fifth Circuit credited
that portion of the testimony which said that “there are
things employees can’t say regardless of race.” Reeves
requires that the evidence favoring the nonmovant be
credited. Reeves requires “drawing inferences in favor of
the nonmoving party.” Reeves, 530 U.S. at 150. So viewed,
the record demonstrates that WLBT fired Bassett “for
actions or attributes it would tolerate in an individual of
another person’s race.” Bostock v. Clayton Cnty., Georgia,
590 U.S. 644, 658 (2000).
Once it is determined that the McDonnell Douglas
methodology is not the sole way for a plaintiff to survive
summary judgment, the result is plain. There was ample
circumstantial evidence upon which the jury could find
that “race was a motivating factor.” 42 U.S.C. § 2000e(m).
21
In addition to WLBT’s testimony through Fortenberry,
the record also contains the following evidence:
a) WLBT operates a media training center,
where it has a policy of preferring applicants of
color over white applicants. Of 75 participants,
only 3 are not persons of color.
b) Bassett was a “great anchor,” and was
“loving,” and a “hard worker,” who immediately
apologized when she learned black people were
offended by use of the word “grand mammy.”
c) WLBT knew that Bassett could not have
meant the term “fo shizzle, my nizzle,” in a
racist manner because she was promoting a
black person’s product when she used the term.
d) WLBT claimed “grand mammy” was
a racist term when the dictionary confirms
it is not, and when Bassett uses the term in
referring to her own grandmother.
e) Defendant insisted upon enforcing Bassett’s
non-compete agreement, permitting the jury
to draw the inference that it did not regard
her words as anything that would harm a
telecaster’s business, or would make Bassett
an undesirable employee.
Once “all reasonable inferences are drawn in favor
of the nonmoving party,” as Reeves dictates, and once
the road is cleared of the McDonnell Douglas obstacle,
a denial of the motion for summary judgment and a right
to trial by jury follows.
22
CONCLUSION
This Court should grant the writ and hold that
McDonnell Douglas is not the only way to survive
summary judgment in a Title VII case. Once it is
determined that the McDonnell Douglas methodology
is not exclusive, and once the Fifth Circuit is required to
credit the nonmovant’s evidence, Bassett is entitled to a
jury trial.
The right to trial by jury is “of such importance and
occupies so firm a place in our history and jurisprudence
that any seeming curtailment of the right” has always
been and “should be scrutinized with the utmost care.”
Securities and Exchange Commission v. Jarkesy, 603
U.S. 109, 121 (2024)(citations omitted). The use of the
confusing McDonnell Douglas methodology as a means
of curtailing the right to jury trial should end.
Respectfully submitted,
Jim Waide
Counsel of Record
Waide & A ssociates, P.A.
332 North Spring Street
Tupelo, MS 38804
(662) 842-7324
waide@waidelaw.com
Counsel for Petitioner
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT, FILED MAY 22, 2026 . . . . . . . 1a
APPENDIX B — ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF MISSISSIPPI,
NORTHERN DIVISION, FILED MAY 19, 2025 . . . 16a
A P P E N DI X C — O R D E R D E N Y I N G
R EH E A RI NG EN BA NC OF T H E
UNITED STATES COURT OF APPEALS
FOR T H E FI F T H CIRCU I T, FILED
JUNE 22, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44a
1a
Appendix
A
APPENDIX A — OPINION
OF THE
UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT,
FILED MAY 22, 2026
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 25-60278
BARBIE BASSETT,
Plaintiff-Appellant,
v.
GRAY MEDIA GROUP, INCORPORATED,
DOING BUSINESS AS WLBT-TV,
Defendant-Appellee.
Filed May 22, 2026
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:23-CV-3154
Before Clement, Douglas, and Ramirez, Circuit Judges.
Per Curiam:*
* This opinion is not designated for publication. See 5 th Cir.
R. 47.5.
2a
Appendix A
Barbie Bassett appeals a summary judgment in favor
of Gray Media Group, Inc. d/b/a WLBT-TV (WLBT), on
her claim that it discriminated against her based on race
by terminating her employment as a news anchor for twice
using language on air that it deemed racially offensive
and about which viewers and co-workers complained. We
AFFIRM.
I
A
In 1999, Bassett started working at a television news
station in Jackson, Mississippi—WLBT. From October
2021 until her termination in 2023, she was a morning news
anchor and co-host for WLBT’s “Today at 11” show. The
position required her to “not engage in any conduct that
could reflect negatively on [WLBT] or its reputation in the
community.” Bassett also agreed not to “commit any act
or become involved in any situation or occurrence tending
to degrade [her] in the mind of the public or which may
bring [Bassett] into public disrepute, contempt, scandal or
ridicule, or tend to shock, insult or offend the community
or which may reflect unfavorably on” her or WLBT.
While engaging in live, on-air dialogue on October
28, 2022, Bassett, who is White, referred to a Black
reporter’s grandmother as “grand m*mmy.” WLBT
received numerous viewer complaints regarding Bassett’s
use of the term. Several WLBT employees also expressed
offense. On November 10, 2022, WLBT’s news director,
Charles Jones, issued Bassett a written warning stating
3a
Appendix A
that Bassett’s comment violated WLBT’s “unlawful
harassment—hostile work environment” policy because
“[t]he term . . . is a negative depiction used during slavery
to refer to an African American Grandmother,” and “[t]he
Comment was insensitive and inappropriate during the
newscast.” The warning also stated that further violations
could lead to additional disciplinary action, including
termination.
Less than six months later, while again engaging in
on-air dialogue with co-anchors following a report about
rap artist Snoop Dogg on March 8, 2023, Bassett used
a phrase attributed to him—“fo shizzle, my n**zle” (the
“Phrase”). When the show went to commercial break,
a Black co-anchor said to Bassett: “I can’t believe you
just said the N word on live TV.” Bassett responded that
the Phrase meant “for real, my friend” or “for real, my
brother.”
Following the broadcast, other Black employees
told Jones and his supervisor, general manager Ted
Fortenberry, that the Phrase referenced a racial slur.
Bassett’s comment also drew online criticism, numerous
viewer and employee complaints, and national media
attention.
Although Jones and Fortenberry did not know what
the Phrase meant or whether it referred to a racial slur,
they conferred with a human resources representative
and in-house counsel and concluded that the Phrase
was derogatory. On March 14, 2023, WLBT terminated
Bassett’s employment.
4a
Appendix A
B
Bassett filed a charge of discrimination with the
Equal Employment Opportunity Commission. After she
received a right-to-sue letter, she sued WLBT under
Title VII of the Civil Rights Act of 1964 for alleged racial
discrimination.1
WLBT moved for summary judgment. In response,
Bassett argued there were genuine issues of material
fact regarding whether her race was a motivating factor
in the decision to terminate her. She principally relied
on deposition testimony by Fortenberry in his capacity
as corporate designee that there are “some things that
[B]lack people can say that [W]hite people can’t say.”
During his deposition, Fortenberry was asked whether it
is “racist” for Snoop Dogg, who is Black, to use the Phrase.
Fortenberry responded that he believed in “today’s
world,” “there are things that some people can say that
are not considered to be inappropriate based on who they
are and their background compared to other people.” More
“specific[ally,]” “there’s some things that [B]lack people
can say that [W]hite people can’t say.” But the Phrase,
Fortenberry concluded, is “certainly not something you
want to say on the air whether you’re [B]lack or [W]hite,
on [WLBT] for sure.”
1. Bassett also sued for age discrimination and sought a
declaratory judgment that her noncompete agreement with WLBT
was void. She has since voluntarily conceded the age discrimination
claim, and she did not appeal the district court’s dismissal of her
declaratory judgment claim.
5a
Appendix A
The district court granted WLBT’s motion for
summary judgment, applying a “modified” version of the
burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Bassett
timely appealed.
II
This court “review[s] a district court’s ruling on a
motion for summary judgment de novo and appl[ies] the
same legal standards as the district court.” Bellard v.
Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012). Summary
judgment is proper where “the movant shows that there is
no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The evidence is viewed “in the light most favorable
to the nonmoving party.” In re Intelogic Trace, Inc., 200
F.3d 382, 386 (5th Cir. 2000).
III
Bassett argues that the district court erred in
applying the McDonnell Douglas framework. But even if
the framework applies, she contends, it erred by finding
that she did not satisfy her summary-judgment burden.
Under Title VII, it is unlawful for an employer to
“discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
“Title VII plaintiffs may prove a racial discrimination
6a
Appendix A
claim either by direct or circumstantial evidence.” Stroy
v. Gibson ex rel. Dep’t of Veterans Affs., 896 F.3d 693, 698
(5th Cir. 2018). For cases involving “only circumstantial
evidence of discrimination,” this court “use[s] the wellknown burden-shifting analysis set forth in McDonnell
Douglas.” Id.
Under the McDonnell Douglas framework, “the
plaintiff must first establish a prima facie case of
discrimination.” McCoy v. City of Shreveport, 492 F.3d
551, 556 (5th Cir. 2007), abrogated on other grounds by
Hamilton v. Dallas Cnty., 79 F.4th 494 (5th Cir. 2023).
“If the plaintiff makes a prima facie showing, the burden
then shifts to the employer to articulate a legitimate,
non[-]discriminatory or non[-]retaliatory reason for its
employment action.” Id. at 557. Should the employer meet
its burden, “the plaintiff then bears the ultimate burden
of proving that the employer’s proffered reason is not
true but instead is a pretext for the real discriminatory
or retaliatory purpose.” Id.
If, however, a plaintiff relies on a “mixed-motive”
theory—i.e., alleges that even if the employer’s “proffered
reasons are not pretextual, racial animus was also a
motivating factor for her firing”—this court applies a
“modified” McDonnell Douglas test. Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 347 (5th Cir. 2007)
(emphasis added). The first two inquiries under the
modified framework are the same as the traditional
framework. Rachid v. Jack In The Box, Inc., 376 F.3d
305, 312 (5th Cir. 2004). But as an alternative to showing
pretext, “a plaintiff must offer sufficient evidence to
7a
Appendix A
create a genuine issue of material fact that the defendant’s
reason, while true, is only one of the reasons for its conduct
and that another motivating factor was the plaintiff’s
protected characteristic.” Turner, 476 F.3d at 347. “[I]f
the plaintiff shows that [her] protected characteristic was
a motivating factor, then the burden shifts to the employer
to show that the adverse employment decision would have
been made regardless of the characteristic.” Black v. Pan
Am. Lab’ys, L.L.C., 646 F.3d 254, 259 (5th Cir. 2011).
A
Bassett argues that the district court erred in
applying the McDonnell Douglas burden-shifting
framework to evaluate her Title VII claims “simply
because [it] found the case presented only circumstantial
and not direct evidence.”2 She asserts that, under Brady v.
2. Bassett also suggests that the district court erred in
applying McDonnell Douglas because Fortenberry’s deposition
testimony that that there are “some things that [B]lack people
can say that [W]hite people can’t say” qualifies as direct evidence
of discrimination. See Trans World Airlines, Inc. v. Thurston,
469 U.S. 111, 121 (1985) (“[T]he McDonnell Douglas test is
inapplicable where the plaintiff presents direct evidence of
discrimination.”). She has “waived this issue by inadequately
briefing it and relegating it to a footnote,” however. See Holden v.
U.S. United Ocean Servs., L.L.C., 582 F. App’x 271, 274 n.2 (5th
Cir. 2014) (unpublished); see also Bridas S.A.P.I.C. v. Gov’t of
Turkmenistan, 345 F.3d 347, 356 n.7 (5th Cir. 2003) (holding that
an issue the plaintiff “attempted to appeal[] in a footnote” was
waived because “[a]rguments that are insufficiently addressed
in the body of the brief . . . are waived”). Moreover, Bassett has
also failed to show that this is the “rare” direct evidence case, see
Portis v. First Nat. Bank of New Albany, 34 F.3d 325, 328 (5th Cir.
8a
Appendix A
Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008),
and Bostock v. Clayton County, 590 U.S. 644 (2020), the
district court should have instead evaluated “only whether
there was sufficient evidence to demonstrate that race
was a motivating factor in Bassett’s termination.” We
disagree. 3
This court has made clear that McDonnell Douglas
applies in Title VII discrimination cases relying on
circumstantial evidence, even at the summary-judgment
stage. See, e.g., Stroy, 896 F.3d at 698; Turner, 476 F.3d at
345-49; McCoy, 492 F.3d at 556-62; Awe v. Harris Health
1994), because nothing in the record suggests that Fortenberry’s
personal belief that there are “some things that [B]lack people can
say that [W]hite people can’t say” was related to or “served as a
basis” for her termination. See Herster v. Bd. of Supervisors of La.
State Univ., 887 F.3d 177, 185 (5th Cir. 2018) (citation modified);
see also Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C.,
778 F.3d 473, 476 (5th Cir. 2015) (noting that direct evidence is
that which is “related to the challenged employment decision”).
Fortenberry stated that the Phrase should not be said “on the air”
by anyone, regardless of race.
3. It is unclear how the district court’s application of
McDonnell Douglas is meaningfully different from the standard
that Bassett argues should have been applied. She asserts
that the district court should have simply evaluated whether
race was a motivating factor in WLBT’s decision to terminate
her, but it addressed that precise issue as part of the modified
McDonnell Douglas test that it applied. See Rachid, 376 F.3d at
312. It assumed that Bassett had satisfied McDonnell Douglas’s
prima-facie case requirement and held that WLBT articulated
a legitimate reason for her termination. As a result, the district
court evaluated exactly what Bassett propounds here—whether
race was a motivating factor in her termination.
9a
Appendix A
Sys., 163 F.4th 969, 972 (5th Cir. 2026) (per curiam). We
have consistently declined to follow Brady, which held that
courts should not “decide whether the plaintiff actually
made out a prima facie case under McDonnell Douglas”
at the summary-judgment stage if “an employer has
asserted a legitimate, non-discriminatory reason” for its
adverse decision. Compare Brady, 520 F.3d at 494, with
Hague v. Univ. of Tex. Health Sci. Ctr. at San Antonio,
560 F. App’x 328, 335 & n.8 (5th Cir. 2014) (unpublished)
(concluding that, notwithstanding Brady, “the district
court must address whether [the plaintiff] established a
prima facie case”).4 This court has also held that Bostock,
which did not cite or discuss McDonnell Douglas, did
not “alter” the “standard[]” in Title VII cases “[a]t the
summary judgment stage, when the claim relies on
circumstantial evidence.” See Olivarez v. T-mobile USA,
Inc., 997 F.3d 595, 601 (5th Cir. 2021) (noting that Bostock
4. See also Stallworth v. Singing River Health Sys., 469 F.
App’x 369, 372 (5th Cir. 2012) (unpublished) (“Stallworth urges us
to follow [Brady] and pretermit the issue whether she has made
the requisite prima facie showing given that Singing River has
offered legitimate, non[-]discriminatory reasons for the challenged
employment actions. She cites no precedent in this circuit for
following Brady, and we decline to do so.”); Abajian-Salon v. City
of San Antonio, No. 25-50010, 2026 WL 311957, at *3 n.3 (5th Cir.
Feb. 5, 2026) (unpublished) (“[W]e have explicitly rejected the
Brady approach. . . . Therefore, we apply the McDonnell Douglas
test here.”); Atterberry v. City of Laurel, 401 F. App’x 869, 871
n.1 (5th Cir. 2010) (unpublished) (“Whatever the merits of Brady
may be, our rule of orderliness requires that we follow our own
precedent.”); Long v. City of Llano, No. 24-50663, 2025 WL
655800, at *2 n.1 (5th Cir. Feb. 28, 2025) (unpublished) (holding
that the plaintiff’s argument that this court “should skip the prima
facie analysis altogether . . . is foreclosed by our precedent”).
10a
Appendix A
simply “defined sex discrimination to encompass sexual
orientation and gender identity discrimination”). 5
Because this is a circumstantial evidence case, and
this court has consistently rejected Bassett’s arguments
to set aside McDonnell Douglas, the district court did not
err in applying that framework here.
B
Bassett next argues that the district court erred in
granting summary judgment because she has satisfied
her burden under the “modified” McDonnell Douglas
framework. Again, we disagree.
Like the district court, we need not substantively
address whether Bassett satisfied her initial burden to
establish a prima facie case of race discrimination because,
as discussed below, she has not carried her burden
under the remaining McDonnell Douglas elements,
which require (1) WLBT to “articulate a legitimate,
non-discriminatory reason for its decision to terminate
5. See also Newbury v. City of Windcrest, 991 F.3d 672,
676-77 (5th Cir. 2021) (“Although [Bostock] expanded the groups
of individuals protected by Title VII, it in no way altered the
preexisting legal standard for sexual harassment.”); Corley v.
Mercedes-Benz U.S. Int’l, Inc., No. 21-11986, 2022 WL 2345808,
at *3 n.4 (11th Cir. June 29, 2022) (unpublished) (rejecting, in a
reverse discrimination case, the plaintiff’s “argument that the
McDonnell Douglas burden-shifting framework is no longer
applicable in the light of” Bostock, which the court did not “read”
as “overruling McDonnell Douglas or as establishing a new test
for evaluating Title VII discrimination claims”).
11a
Appendix A
[Bassett]”; and (2) Bassett to demonstrate a fact issue
regarding whether WLBT’s reason, “while true, is only
one of the reasons for its conduct, and another ‘motivating
factor’ is [Bassett’s] protected characteristic.” See Rachid,
376 F.3d at 312 (citation modified).6
1
Bassett asserts that WLBT failed to articulate a
legitimate, non-discriminatory reason for her termination.
WLBT responds that its stated reason for firing Bassett—
her use of “racially offensive language on air twice”—is
sufficient to meet its burden.
An employer’s burden to proffer a legitimate and nondiscriminatory reason for an adverse employment action
is “a burden of production, not persuasion.” Vaughn v.
Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011). Firing
an employee for making racially inappropriate comments
is a sufficient non-discriminatory reason. See id. (holding
that firing a White employee for making “inappropriate
comments in the presence of employees and customers
6. Bassett does not argue that WLBT’s stated reason is
pretext for discrimination. As a result, the “pretext alternative”
under McDonnell Douglas is not addressed here. See Rachid, 376
F.3d at 312 (citation modified). Likewise, the parties do not address
the final element of the modified McDonnell Douglas analysis:
whether WLBT has shown “that the same adverse employment
decision would have been made regardless of discriminatory
animus.” See id. (citation modified). Because, as discussed below,
Bassett has failed to show a genuine factual dispute regarding
whether race was a motivating factor in her termination, we also
do not address the final element.
12a
Appendix A
that created a perception of racial discrimination and
uncomfortable environment due to lack of confidentiality”
was a sufficient non-discriminatory reason). So are
violations of company policy. See Rachid, 376 F.3d at 313.
Moreover, “evidence that the employer’s investigation
merely came to an incorrect conclusion does not establish a
racial motivation behind an adverse employment decision.
Management does not have to make proper decisions, only
non-discriminatory ones.” See Bryant v. Compass Grp.
USA Inc., 413 F.3d 471, 478 (5th Cir. 2005).
Here, WLBT asserts it fired Bassett for her use of
racially offensive language on air twice—the second
instance occurring just six months after she received a
written warning for the first. This court has found the
second McDonnell Douglas element satisfied in similar
circumstances. See Vaughn, 665 F.3d at 636. Nevertheless,
Bassett argues that WLBT has failed to meet its burden
because it wrongly concluded that the language she
used was, in fact, offensive. But even if WLBT “came
to an incorrect conclusion” regarding the offensiveness
of Bassett’s on-air comments, this “does not establish a
racial motivation behind [WLBT’s] adverse employment
decision.” See Bryant, 413 F.3d at 478. Consequently,
WLBT has satisfied its burden to articulate a legitimate,
non-discriminatory reason for terminating Bassett’s
employment.
13a
Appendix A
2
Bassett also argues that, even if WLBT adequately
stated a legitimate, non-discriminatory reason for
terminating her, there are genuine issues of material
fact as to whether race was a motivating factor in her
termination. She primarily relies on: (1) Fortenberry’s
testimony that there are “some things that [B]lack people
can say that [W]hite people can’t say”; (2) her historically
positive employment record; and (3) her contention that
“WLBT accepted [B]lack persons’ opinions of the meaning
of [the Phrase] over [W]hite persons’ opinions.” In
response, WLBT asserts that Bassett’s purported “facts”
either mischaracterize the evidence or are irrelevant to
the inquiry.
First, Fortenberry’s deposition testimony is not
sufficient to create a genuine factual dispute. As the district
court found, Fortenberry did not admit discrimination.
Rather, when speaking specifically about the Phrase,
Fortenberry said it was “certainly not something you
want to say on the air whether you’re [B]lack or [W]hite.”
He also made clear that “on [WLBT,] there are things
[employees] can’t say regardless of their race.”
Second, that Bassett had a positive employment
record before the events giving rise to her termination is
irrelevant. The record reflects that just six months before
she was fired for an offensive remark on air, she received
a written warning for a different racially insensitive
remark on air. Her historically positive “performance”
does “not speak to [her] actions immediately preceding
14a
Appendix A
[her] termination—the actions that [WLBT] says caused
[her] termination.” See Gobert v. Saitech, Inc., 439 F. App’x
304, 306-07 (5th Cir. 2011) (unpublished).
Third, Bassett’s argument that “WLBT accepted
[B]lack persons’ opinions of the meaning of [the Phrase]
over [W]hite persons’ opinions” is unsupported by the
record and, in any event, does not demonstrate that race
motivated the decision to terminate her. As discussed,
there is no dispute that WLBT received complaints from
viewers and employees indicating they found language
used by Bassett to be offensive. Those complaints came
from Black and White viewers and employees alike. Even
if WLBT was wrong in concluding Bassett’s comments
were offensive, “evidence that [WLBT] . . . merely came
to an incorrect conclusion does not establish a racial
motivation behind an adverse employment decision.”
Bryant, 413 F.3d at 478.7
7. Bassett also argues that genuine factual disputes
regarding WLBT’s discriminatory motive exist based on a myriad
of other irrelevant or conclusory “facts.” First, she points to the
existence of WLBT’s Media Training Center, which primarily
hires students from historically Black colleges and universities.
But she cites no evidence suggesting that the Media Training
Center has any connection to her termination. In fact, the program
is “totally separate” from the WLBT newsroom, and it is directed
by a person who had no part in Bassett’s termination. See Rios
v. Rossotti, 252 F.3d 375, 382 (5th Cir. 2001) (explaining that
“statements by non decision makers, or statements by decision
makers unrelated to the decisional process itself do not suffice to
satisfy the Plaintiff’s burden” (citation modified)). Second, Bassett
argues discriminatory motive can be inferred from questioning by
WLBT’s attorney during Bassett’s deposition, which “impl[ied] it
15a
Appendix A
None of Bassett’s cited evidence creates a genuine
dispute of material fact regarding whether race motivated
WLBT’s decision to terminate her employment. Rather,
the evidence suggests she was fired for using language
on air that WLBT concluded—after receiving numerous
employee and viewer complaints—was racially offensive.
The district court, therefore, did not err in granting
summary judgment.
IV
The judgment of the district court is AFFIRMED.
would be appropriate” for Black people to say the Phrase, but not
White people. She does not explain, however, how this questioning
demonstrates what motivated WLBT to terminate Bassett’s
employment at the time it did so. Finally, Bassett’s argument that
“WLBT knew that [she] could not have meant the term in a racist
manner because she was promoting a [B]lack person’s product”
is wholly conclusory and unsupported by record evidence. And
“[c]onclusory allegations and unsubstantiated assertions” do not
“satisfy the plaintiff’s burden” to create a genuine factual dispute.
See Bellard, 675 F.3d at 460.
16a
Appendix
B UNITED STATES
APPENDIX B — ORDER
OF THE
DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF MISSISSIPPI, NORTHERN DIVISION,
FILED MAY 19, 2025
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CIVIL ACTION NO. 3:23-CV-3154-DPJ-ASH
BARBIE BASSETT,
Plaintiff,
v.
GRAY MEDIA GROUP, INC.,
D/B/A WLBT-TV,
Defendant.
Signed May 19, 2025
ORDER
Local television-news anchor Barbie Bassett lost her
job after making two on-air remarks in a six-month period
that her employer, Gray Media Group, Inc., found racially
offensive. Bassett sued, alleging racial discrimination and
other wrongs. Gray Media—which does business as the
WLBT television station in Jackson, Mississippi—now
moves for summary judgment [35].
17a
Appendix B
Bassett says she never intended to offend anyone,
which the Court can accept as true. But the “employment
laws do not transform federal courts into human resources
managers, so the inquiry is not whether [WLBT] made a
wise or even correct decision. . . . Instead, ‘[t]he ultimate
determination, in every case, is whether, viewing all of
the evidence in a light most favorable to the plaintiff, a
reasonable factfinder could infer discrimination.’” Owens
v. Circassia Pharms., Inc., 33 F.4th 814, 826 (5th Cir.
2022) (quoting Crawford v. Formosa Plastics Corp., La.,
234 F.3d 899, 902 (5th Cir. 2000)) (other citations omitted).
Bassett has not met that legal standard; the Court grants
the motion.
I.
Background
Bassett appeared on the air in various capacities
from 1999 until her termination from employment in
2023. Bassett CV [39-1]. Her trouble began in October
2022 during a show she co-anchored, Today at 11. Bassett
Dep. [39-2] at 46-47. During some on-air “banter” with a
Black reporter, Bassett—a White woman—“suggested to
[the reporter] what she should do was to ask her grand
mammy . . . to bake a chocolate or pecan pie” for some
visiting ESPN journalists. Id. at 47.
This “grand mammy” remark generated complaints
and led WLBT to give Bassett a written warning that
the comments were “insensitive and inappropriate” and
that “[a]ny other performance or behavior that is deemed
unacceptable will lead to termination of employment.”
Notice [35-1] at 177. Bassett insisted she meant nothing
18a
Appendix B
wrong by the term—which she said she used when
referring to her own grandmother—but she offered an
on-air apology. Bassett Dep. [39-2] at 56-58.
After a second remark in March 2023, WLBT let
Bassett go. While discussing Snoop Dogg, Bassett
repeated one of the celebrity’s catchphrases, “fo’ shizzle,
my nizzle.” Id. at 76-77. Although WLBT’s management
was initially unsure whether the term was offensive, its
news director, Charles Jones, and its general manager,
Ted Fortenberry, later concluded that the phrase included
a variant of the “N-word.” Id. at 78; see Fortenberry Dep.
[39-8] at 28, 33; Jones Dep. [39-6] at 42-44, 47. Bassett
thought the phrase just meant “for real, my friend” or “for
real, my brother.” Bassett Dep. [39-2] at 78. But there is
no dispute that the comment generated a second round of
complaints from Black co-workers and viewers.
WLBT met with Bassett and offered her the choice
of resignation (with a waiver and severance payments) or
termination. Id. at 90-91. Bassett chose termination, which
took effect that same month. Id. at 92. The station later
replaced Bassett with a Black journalist, supposedly after
a White employee declined the job. Jones Dep. [39-6] at 6970. The station also enforced the one-year noncompetition
clause in Bassett’s contract. Agr. [39-3] at 6; Fortenberry
Dep. [39-8] at 38.
Bassett filed a timely EEOC charge, alleging race
and age discrimination, and received a right-to-sue
letter. After that, she sued. WLBT moved for summary
19a
Appendix B
judgment, and the Court heard oral argument on May 1,
2025.1
II. Standard
Summary judgment is warranted under Federal
Rule of Civil Procedure 56(a) when evidence reveals no
genuine dispute about any material fact and 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, 106 S.Ct.
2548, 91 L.Ed.2d 265 (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, 106 S.Ct.
2548. 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, 106 S.Ct.
2548 (citation omitted). In reviewing the evidence,
factual controversies are to be resolved in favor of the
nonmovant, “but only when . . . both parties have submitted
evidence of contradictory facts.” Little v. Liquid Air
1. That same day, the Court conducted a pretrial conference
to expedite a trial setting if the case survived summary judgment.
20a
Appendix B
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). When
such contradictory facts exist, the court may “not make
credibility determinations or weigh the evidence.” Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150,
120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). It must “interpret
all facts and draw all reasonable inferences in favor of the
nonmovant.” EEOC v. Rite Way Serv., 819 F.3d 235, 239
(5th Cir. 2016); accord Tolan v. Cotton, 572 U.S. 650, 660,
134 S.Ct. 1861, 188 L.Ed.2d 895 (2014). But conclusory
allegations, speculation, unsubstantiated assertions, and
legalistic arguments have never constituted 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) (citing SEC v. Recile, 10 F.3d 1093,
1097 (5th Cir. 1993)).
The party opposing summary judgment must identify
specific evidence in the record and to articulate the precise
manner in which that evidence supports his claim. See
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied,
513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994). “Rule
56 does not impose upon the district court a duty to sift
through the record in search of evidence to support a
party’s opposition to summary judgment.” Skotak v.
Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir.),
cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59
(1992). And disputed fact issues that are “irrelevant and
unnecessary” to deciding the motion will not be considered
by the Court. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
21a
Appendix B
III. Discussion
Bassett has conceded her age-discr imination
claim. Pl.’s Mem. [43] at 1. So that leaves her Title VII
race-discrimination claim and her claim to declare her
noncompetition agreement void because WLBT fired her
without cause. Compl. [1] ¶¶ 11, 15.
A.
Race Discrimination
The parties dispute the test that should apply. WLBT
lays out the classic McDonnell Douglas framework used
when a plaintiff relies on circumstantial evidence to prove
discrimination. Russell v. McKinney Hosp. Venture, 235
F.3d 219, 222 (5th Cir. 2000); see Def.’s Mem. [37] at 7-8.
Bassett says there are other ways to prove a Title VII
claim. The first question is whether Bassett presents a
circumstantial or direct-evidence case.
1.
Direct Evidence
“Direct evidence is evidence that, if believed, proves
the fact of discriminatory animus without inference or
presumption.” Sandstad v. CB Richard Ellis, Inc., 309
F.3d 893, 897 (5th Cir. 2002). It must be “direct and
unambiguous.” Read v. BT Alex Brown Inc., 72 F. App’x
112, 119 (5th Cir. 2003) (quoting E.E.O.C. v. Tex. Instr’ts
Inc., 100 F.3d 1173, 1181 (5th Cir. 1996)). For instance, the
Fifth Circuit found direct evidence in Jones v. Robinson
Property Group, L.P., because the decisionmaker
regularly used a racist epithet and said, “[T]hese good old
white boys don’t want black people touching their cards.”
22a
Appendix B
427 F.3d 987, 993 (5th Cir. 2005). “Direct evidence of an
employer’s discriminatory intent is rare; therefore, Title
VII plaintiffs must ordinarily prove their claims through
circumstantial evidence.” Scales v. Slater, 181 F.3d 703,
709 (5th Cir. 1999) (footnote omitted).
Bassett never claims that her case offers direct
evidence of discrimination, but she relies on a quote from
WLBT’s 30(b)(6) deposition stating that there are “some
things that black people can say that white people can’t.”
R. 30(b)(6) Dep. [35-4] at 16. There’s more to the quote,
as discussed later, but Bassett argues that “[a] reasonable
fact finder could infer from Defendant’s 30(b)(6) deposition
alone, that a black person, using the exact same language
that Bassett used, with no racist intent, would not have
been fired.” Pl.’s Mem. [34] at 14 (emphasis added). An
inference is not enough to constitute direct evidence.
Sandstad, 309 F.3d at 897. In any event, Bassett offers
no direct-evidence argument, so the Court will apply the
circumstantial-evidence analysis.
2.
Is McDonnell Douglas Good Law?
In McDonnell Douglas, the Supreme Court established
a burden-shifting analysis that the Fifth Circuit has
routinely applied in circumstantial cases under Title VII.
See, e.g., Russell, 235 F.3d at 222. Bassett argues that this
analysis no longer applies, but she fails to support her
position with applicable law.
First, during oral argument, Bassett urged the Court
to adopt Brady v. Office of the Sergeant at Arms, a D.C.
23a
Appendix B
Circuit opinion stating “that inquiry into the prima facie
case is usually misplaced.” 520 F.3d 490, 493 (D.C. Cir.
2008) (Kavanaugh, J.). The Fifth Circuit has expressly
rejected Brady as “foreclosed by our precedent.”
Arismendez v. Nightingale Home Health Care, Inc., 493
F.3d 602, 607 (5th Cir. 2007); see also Shahrashoob v. Tex.
A&M Univ., 125 F.4th 641, 649 (5th Cir. 2025).
Second, Bassett maintains that McDonnell Douglas
is no longer viable considering cases like Reeves. 530
U.S. at 143, 120 S.Ct. 2097. That’s wrong, at least for now.
True enough, some Supreme Court justices have signaled
their displeasure with McDonnell Douglas. For example,
in Hittle v. City of Stockton, Justice Thomas (joined by
Justice Gorsuch) dissented from the denial of certiorari,
believing the Court should revisit McDonnell Douglas.
U.S.
, 145 S. Ct. 759, 221 L.Ed.2d 425 (2025). But
the Supreme Court has yet to unravel the McDonnell
Douglas burden-shifting analysis.
Thus, the Fifth Circuit has repeatedly held that this
analysis “must” be followed in circumstantial cases under
Title VII. Etienne v. Spanish Lake Truck & Casino Plaza,
LLC, 778 F.3d 473, 475 (5th Cir. 2015) (holding that “[i]f the
plaintiff presents only circumstantial evidence, then she
must prove discrimination inferentially using the threestep McDonnell Douglas” burden-shifting framework)
(citation omitted); accord Hassen v. Ruston La. Hosp.
Co., L.L.C., 932 F.3d 353, 356 (5th Cir. 2019), as revised
(Aug. 1, 2019).
24a
Appendix B
3.
Burden-Shifting Analysis
Bassett says hers is a “mixed motive” case. Pl.’s Mem.
at 15-16. The Fifth Circuit applies a modified McDonnell
Douglas approach in those cases:
the plaintiff must still demonstrate a prima facie
case of discrimination; the defendant then must
articulate a legitimate, non-discriminatory
reason for its decision to terminate the
plaintiff; and, if the defendant meets its burden
of production, “the plaintiff must then offer
sufficient evidence to create a genuine issue
of material fact ‘either (1) that the defendant’s
reason is not true, but is instead a pretext for
discrimination (pretext alternative); or (2)
that the defendant’s reason, while true, is only
one of the reasons for its conduct, and another
“motivating factor” is the plaintiff’s protected
characteristic (mixed-motive alternative).’”
Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th
Cir. 2004) (quoting Rishel v. Nationwide Mut. Ins. Co.,
297 F. Supp. 2d 854, 865 (M.D.N.C. 2003)).
a.
Prima Facie Case
A Title VII plaintiff must begin by showing the
elements of prima facie discrimination. In most cases,
that requires proof:
25a
Appendix B
that she (1) belongs to a protected group;
(2) was qualified for the position at issue; (3)
was discharged or suffered some adverse
employment action by the employer; and (4)
was replaced by someone outside her protected
group or was treated less favorably than
other similarly situated employees outside her
protected group.
Shahrashoob, 125 F.4th at 649 (citing Ernst v. Methodist
Hosp. Sys., 1 F.4th 333, 339 (5th Cir. 2021)). WLBT
concedes the first three elements but says Bassett’s case
fails at the fourth element. Def.’s Mem. [37] at 8-9; Def.’s
Reply [44] at 2. 2
Bassett offers no comparators, so her prima facie case
depends on proof that WLBT replaced her with someone
outside her protected class. WLBT says she can’t make
that showing because it first offered the position to a White
employee who declined. Def.’s Reply [44] at 2. But WLBT
2. During oral argument, the Court questioned whether the
above-quoted version of the fourth element applies in a work-ruleviolation context. In such cases, the Fifth Circuit has held that
“a Title VII plaintiff may establish a prima facie case by showing
‘either (1) that he did not violate the rule, or (2) that, if he did,
white employees who engaged in similar acts were not punished
similarly.’” Turner v. Kansas City S. Ry. Co., 675 F.3d 887, 89293 (5th Cir. 2012) (quoting Mayberry v. Vought Aircraft Co., 55
F.3d 1086, 1090 (5th Cir. 1995)). Bassett’s claim likely fails under
the work-rule-violation test, but WLBT argued that the test is
not exclusive. Given that concession, the Court will focus on the
test WLBT advanced—whether Bassett was treated differently
or was replaced by a Black journalist.
26a
Appendix B
cites no binding authority suggesting that the initial offer
means Bassett was not “replaced by someone outside her
protected group.” Shahrashoob, 125 F.4th at 649. The
Court will assume Bassett can make a prima facie case.
b.
WLBT’s Nondiscriminatory Reason
At this stage, WLBT must “proffer a legitimate,
nondiscriminatory reason for the challenged employment
action.” Blow v. City of San Antonio, 236 F.3d 293, 297
(5th Cir. 2001). “This burden on the employer is only one
of production, not persuasion, involving no credibility
assessments.” Russell, 235 F.3d at 222.
According to WLBT, it “discharged Plaintiff because
she used racially offensive language on-air—twice.” Def.’s
Mem. [37] at 6 (citing Fortenberry Dep. [39-6] at 32-33;
Jones Dep. [39-8] at 51-52). Bassett argued during the
hearing that this reason is not race-neutral because a
Black reporter would not have been disciplined for saying
the same thing. As discussed in the next section, that
argument is not supported. Regardless, there is no dispute
Bassett’s comments generated complaints, and, at this
stage, WLBT faces a burden of production, not persuasion.
Russell, 235 F.3d at 222. Indeed, “even an incorrect belief
that an employee’s performance is inadequate constitutes
a legitimate, non-discriminatory reason.” Saketkoo v.
Adm’rs of Tulane Educ. Fund, 31 F.4th 990, 1002 n.8 (5th
Cir. 2022). WLBT met its burden of production.
27a
Appendix B
c.
The Ultimate Burden
Assuming this is a mixed-motive case as Bassett
suggests, a modified test applies at this final stage of the
burden-shifting analysis. Rachid, 376 F.3d at 312. Under
this test,
the plaintiff must . . . offer sufficient evidence
to create a genuine issue of material fact either
(1) that the defendant’s reason is not true, but
is instead a pretext for discrimination (pretext
alternative); or (2) that the defendant’s reason,
while true, is only one of the reasons for its
conduct, and another “motivating factor” is
the plaintiff’s protected characteristic (mixedmotive alternative).
Id. “Whether summary judgment is appropriate depends
on numerous factors, including ‘the strength of the
plaintiff’s prima facie case, the probative value of the
proof that the employer’s explanation is false, and any
other evidence that supports the employer’s case and
that properly may be considered.’” Price v. Fed. Express
Corp., 283 F.3d 715, 724 (5th Cir. 2002) (quoting Reeves,
530 U.S. at 148-49, 120 S.Ct. 2097).
i.
Pretext
If a plaintiff attempts to meet this ultimate burden
under the pretext alternative to the modified approach,
she must “produce substantial evidence indicating that the
proffered legitimate nondiscriminatory reason is a pretext
28a
Appendix B
for discrimination.” Willis v. Cleco Corp., 749 F.3d 314, 318
(5th Cir. 2014) (quoting Laxton v. Gap Inc., 333 F.3d 572,
578 (5th Cir. 2003). “[A] reason cannot be proved to be ‘a
pretext for discrimination’ unless it is shown both that
the reason was false, and that discrimination was the real
reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515,
113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (emphasis added).
“A plaintiff may establish pretext either through evidence
of disparate treatment or by showing that the employer’s
proffered explanation is false or ‘unworthy of credence.’”
Id. at 578 (quoting Wallace v. Methodist Hosp. Sys., 271
F.3d 212, 220 (5th Cir. 2001)).
Bassett has never identified a comparator, so she
cannot prevail under the disparate-treatment approach.
See Lee v. Kan. City S. Ry., 574 F.3d 253, 259 (5th Cir. 2009)
(requiring disparate treatment between similarly situated
workers). She also sidesteps the false-or-unworthy-ofcredence approach, faulting WLBT for claiming that she
must show “the reason given was false or pretextual.” Pl.’s
Mem. [43] at 15. As she notes, she may prevail at this stage
under the alternative mixed-motive approach, something
she does address. Id. Absent any argument for pretext,
the Court turns to mixed motive. 3
3. If Bassett’s claim does not fit the mixed-motive approach,
then she has essentially forfeited at the pretext stage. But even
had she challenged on pretext grounds, the result would be the
same. “An explanation is false or unworthy of credence if it is not
the real reason for the adverse employment action.” Laxton, 333
F.3d at 578. “The ultimate determination . . . is whether, viewing
all of the evidence in a light most favorable to the plaintiff, a
reasonable factfinder could infer discrimination.” Crawford, 234
29a
Appendix B
ii.
Mixed Motive
Under the mixed-motive alternative, a plaintiff must
offer direct or circumstantial evidence that race “was a
motivating factor for any employment practice.” Desert
Palace, Inc., v. Costa, 539 U.S. 90, 99-101, 123 S.Ct. 2148,
156 L.Ed.2d 84 (2003). Bassett offers no direct evidence,
and her circumstantial case falls short.
Undisputed facts. Before addressing the parties’
mixed-motive arguments, it’s helpful to recall what is
undisputed. In a six-month period, Bassett twice made
on-air comments that people viewed as racially offensive.
First, her “grand mammy” comment generated complaints
from co-workers and viewers. Pl.’s Mem. [43] at 4-5. Based
on that, WLBT gave Bassett a written reprimand and
termination warning. Notice [35-1] at 177.
Second, after her Snoop Dogg quote, WLBT heard
complaints from five Black employees who said the
expression included “the ‘N’ word.” Pl.’s Mem. [43] at 9.
The concern was immediate; Bassett’s co-anchor (a Black
man) told her that day, “I can’t believe you just said the
N word on live TV.” Bassett Dep. [39-2] at 78. And there
is no dispute the station heard complaints from viewers.
F.3d at 902. The evidence addressed next under mixed motives
would not establish that the stated reason was false or unworthy
of credence. See Keelan v. Majesco Software, Inc., 407 F.3d 332,
341 n.2 (5th Cir. 2005) (recognizing that evidence was insufficient
to establish a mixed motive “for the same reasons” it failed to
establish pretext); see also Mackey v. Enventives, L.L.C., 802 F.
App’x 835, 838 (5th Cir. 2020) (same).
30a
Appendix B
Pl.’s Mem. [43] at 7-8. In other words, Bassett did what
WLBT said she did.
Whether WLBT admitted discrimination. According
to Bassett, “the crucial, overriding fact” is “that
Defendant’s corporate representative admitted that
the words which Bassett used would have been viewed
differently if uttered by a black person.” Pl.’s Mem. [43]
at 13. She bases that on this quote from Fortenberry, one
of two White WLBT executives said to have fired Bassett:
Q. Do you mean by that that there’s some
things that black people can say that white
people can’t say?
A.
Absolutely.
Id. (quoting R. 30(b)(6) Dep. [35-4] at 16).
But the context of the answer matters. Easterling v.
Tensas Par. Sch. Bd., 682 F. App’x 318, 324 (5th Cir. 2017)
(affirming summary judgment and rejecting plaintiff’s
construction of deposition testimony based on context).
As WLBT notes, Bassett omits the next lines from that
same deposition:
Q. Okay. And so far as you know—I mean,
I know you didn’t even know what the phrase
meant yourself at the time, but so far as you
know now is it offensive or—is it something that
black people can’t say or is it just something
that white people can’t say?
31a
Appendix B
A. I think it depends on the circumstances and
the situation. It’s certainly not something you
want to say on the air whether you’re black or
white, on our television station for sure.
R. 30(b)(6) Dep. [35-4] at 16:19-17:3 (emphasis added).
Moments later, For tenber r y rejected Plainti ff ’s
characterization of his first statement:
Q. It was your earlier testimony that there’s
some things that black people might be
permitted to say, but white people would not
be permitted to say that would be appropriate
for blacks but not appropriate for whites; am I
correct?
...
A. I made the statement that it doesn’t matter
if they’re white or black, on our television station
there are things they can’t say regardless of
their race.
Id. at 19:7-17. And he had already explained: “I’m saying if
you’re a professional broadcaster or journalist you should
not say anything unless you know what it means.” Id. at
12-13.
Viewed in the light most favorable to Bassett,
Fortenberry did agree there are things Black people can
say in society that White people can’t. But when asked
specifically about statements by his on-air professionals,
32a
Appendix B
he said neither may say them. Id. That testimony is
uncontradicted.
Would WLBT have treated a Black anchor better.
Aside from the Fortenberry quote, Bassett believes a
Black journalist would get away with using a variant of
the “N word” on air. Pl.’s Mem. [43] at 13. She says that
makes Bostock v. Clayton County controlling. Id. (citing
590 U.S. 644, 140 S.Ct. 1731, 207 L.Ed.2d 218 (2020)).
For starters, this case is not like Bostock. There,
the Supreme Court held that “[a]n employer who fires an
individual for being homosexual or transgender fires that
person for traits or actions it would not have questioned in
members of a different sex.” Bostock, 590 U.S. at 651-52,
140 S.Ct. 1731. The facts in those consolidated appeals
were simple: “An employer fired a long-time employee
shortly after the employee revealed that he or she is
homosexual or transgender—and allegedly for no reason
other than the employee’s homosexuality or transgender
status.” Id. at 653, 140 S.Ct. 1731. In other words, there
was no dispute that the decisions were based on the
employees’ protected characteristics. Unlike in Bostock,
Bassett can only speculate that WLBT would have allowed
a Black comparator to use the same language.
WLBT notes two district-court cases, one from this
Court, rejecting similar arguments. See Def.’s Mem. [37]
at 9 (citing Anderson v. Off. Depot, Inc., No. 3:08-CV288-DPJ-JCS, 2009 WL 1116306, at *1 (S.D. Miss. Apr.
24, 2009); Martin v. El Nell Inc., No. 3:03-CV-2209, 2005
WL 2148651, at *1 (N.D. Tex. Sept. 7, 2005)). Martin
33a
Appendix B
is a tighter fit. There, a math instructor was fired for a
comment heard by a Black administrator and a Black
student—both of whom were offended. Martin, 2005 WL
2148651, at *1. Martin argued that the school found her
statement offensive only because she was White—i.e.,
the comment would be okay if made by a Black person.
Id. at *3. But the court rejected her argument as based
on subjective belief rather than evidence. Id.
Martin is not binding, but this Court cited it in
Anderson. 2009 WL 1116306, at *1. There, the plaintiff
was fired for referring to a Black co-worker as “player.”
Id. The decisionmaker testified that when used by White
people to address Black people, “it is right up there with
calling a person ‘boy,’ or using the ‘N’ word” but that
among Black people it has a different meaning. Id. at
*2. Anderson argued that this testimony reflects “racial
stereotyp[ing]” and was direct evidence of discrimination.
Id. at *3. But the Court concluded that the evidence was
not direct, in part because “such a finding would require
the inference that Defendant would not terminate an
African-American employee under substantially similar
circumstances.” Id. Since the plaintiff conceded that he
couldn’t make his prima facie case on circumstantial
evidence, his case failed. Id. at *4.
Whatever one thinks of the words at issue in Martin
and Anderson, Bassett’s phrases are at least comparable
to them. And Bassett’s claim is less compelling because
the only evidence on this point comes from Fortenberry,
who testified that “it doesn’t matter if they’re white or
black, on our television station there are things they
34a
Appendix B
can’t say regardless of their race.” R. 30(b)(6) Dep. [354] at 19; see also id. at 17 (stating that Snoop Dogg quote
was “certainly not something you want to say on the air
whether you’re black or white, on our television station
for sure”).
There is simply no evidence suggesting that a Black
anchor would not have been disciplined for using (on air) a
term people perceive to be the equivalent of the “N word,”
especially six months after generating complaints for
using another term that offended viewers and coworkers.
Bassett is therefore left with her subjective belief
that a Black anchor would have been treated better.
But “an employee’s subjective belief of discrimination,
however genuine, cannot be the basis of judicial relief.”
Lindsley v. TRT Holdings, Inc., 984 F.3d 460, 470 (5th
Cir. 2021) (quoting EEOC v. La. Off. of Cmty. Servs., 47
F.3d 1438, 1448 (5th Cir. 1995)); see also Samaad v. City
of Dallas, 940 F.2d 925, 941 (5th Cir. 1991) (rejecting
equal-protection argument that city “would have acted
differently had a predominantly white neighborhood” been
affected by its actions) (emphasis in Samaad), abrogation
on other grounds recognized by Tetra Techs., Inc. v. Cont’l
Ins. Co., 755 F.3d 222, 230 (5th Cir. 2014).
Whether the comments were offensive. Bassett also
challenges WLBT’s conclusion that her conduct was
offensive. She correctly notes that the station’s White
decisionmakers did not know the phrase could offend until
they heard complaints, mostly from Black co-workers
and viewers. Pl.’s Mem. [43] at 7-8. She also thinks the
35a
Appendix B
investigation was faulty because management never asked
Snoop Dogg or Bassett what the term meant to them. Id.
at 8.
None of that matters. First, there is no dispute the
managers heard complaints. Second, “evidence that the
employer’s investigation merely came to an incorrect
conclusion does not establish a racial motivation behind
an adverse employment decision. Management does not
have to make proper decisions, only non-discriminatory
ones.” Bryant v. Compass Grp. USA Inc., 413 F.3d 471,
478 (5th Cir. 2005) (citing Little v. Republic Ref. Co., 924
F.2d 93, 97 (5th Cir. 1991)).
Whether Bassett intended to offend. Nor can Bassett
avoid summary judgment by arguing that she did not know
her comments were offensive. Bassett says she believed
the Snoop Dogg phrase was benign, meaning: “[F]or real,
my friend” or “for real, my brother.” Bassett Dep. [39-2]
at 78. But the question is whether the decisionmakers
were motivated by racial animus against her; her intent
is irrelevant.
For example, in Jones v. Lubbock County Hospital
District, the plaintiff was disciplined for violating a work
rule against gossiping. 834 F. App’x 923, 927-28 (5th
Cir. 2020). Similar to Bassett, the plaintiff denied “that
his conduct amounted to gossip,” but the Fifth Circuit
affirmed summary judgment, finding that this evidence
“falls short of the substantial evidence required to prove
pretext.” Id. (citing Laxton, 333 F.3d at 579); see also
Spencer v. Publix Super Mkts., Inc., No. 1:17-CV-3777,
36a
Appendix B
2018 WL 6720426, at *13 (N.D. Ga. Sept. 11, 2018), report
and recommendation adopted, 2019 WL 2004136 (N.D.
Ga. Mar. 21, 2019) (rejecting argument that plaintiff “did
not intend to be dishonest, but simply made a mistake . . .
by not clocking out” because it does not violate Title VII to
fire an employee based on “mistaken but honest impression
that the employee violated a work rule”) (quoting Damon
v. Fleming Supermkts. of Fla., Inc., 196 F.3d 1354, 1363
n.3 (11th Cir. 1999)).
In short, Bassett offers “no evidence that [WLBT]
did not reasonably believe [she] had committed these
infractions.” Lockhart v. Republic Servs., Inc., No. 2050474, 2021 WL 4955241, at *4 (5th Cir. Oct. 25, 2021)
(affirming summary judgment); see also Jackson v. Cal-W.
Pkg. Corp., 602 F.3d 374, 379 (5th Cir. 2010) (“[I]n cases
in which an employer discharges an employee based on
the complaint of another employee, the issue is not the
truth or falsity of the allegation, but whether the employer
reasonably believed the employee’s allegation and acted
on it in good faith” (quotation marks omitted)). Indeed,
Bassett acknowledges the material facts upon which
WLBT says it based the decision. So even though Bassett
never intended to offend, that does not create a triable
mixed motive.
Bassett’s record. Bassett argues that terminating
her employment after years of exemplary service
demonstrates racial animus. Pl.’s Mem. [43] at 18-19.
Bassett likens her case to Kidd v. Mississippi Department
of Human Services. Id. at 19 (citing No. 3:21-CV-234DPJ-FKB, 2022 WL 17573423, at *1 (S.D. Miss. Dec. 9,
37a
Appendix B
2022)). In Kidd, this Court denied summary judgment
and noted that “[b]y all accounts, Kidd was an excellent
employee, consistently performed at a high level, and had
an unblemished record.” Id.
Bassett did have a long and successful career at
WLBT, but her record at the end was not “unblemished.”
Id. The “grand mammy” incident occurred in October
2022, resulting in discipline and a warning that her
employment would be terminated if it happened again.
Notice [35-1] at 177. The Snoop Dogg quote came less than
six months later. A reasonable jury could not infer racial
animus from these facts.
WLBT’s support of Jackson State University.
Bassett says WLBT “permits an inference of anti-white
bias by operating a media training center where it trains
almost exclusively black students to enter the news media
business.” Pl.’s Mem. [43] at 18. The program was part
of the Gray Media Training Center directed by Michael
White. White Dep. [39-5] at 7. And according to him, the
program was designed “to help HBCUs and students of
color learn a little bit more about the industry and to . . .
enhance diversity across our industry.” Id. at 14-15.
These facts do not demonstrate discriminatory motive
by the decisionmakers for two reasons. First, White gave
unrebutted testimony that the training center is separate
from the newsroom and that he was not consulted about
the termination decision. Id. at 20-21. “[S]tatements of
non[-]decision makers, or statements by decision makers
unrelated to the decisional process itself [do not] suffice to
38a
Appendix B
satisfy the Plaintiff’s burden’ of showing discriminatory
intent.” Lavigne v. Cajun Deep Founds., LLC, 654 F.
App’x 640, 647 (5th Cir. 2016) (quoting Rios v. Rossotti,
252 F.3d 375, 382 (5th Cir. 2001)) (alterations in original);
accord East v. Walgreen Co., 860 F. App’x 367, 369 (5th
Cir. 2021). Bassett cites no evidence suggesting that the
decisionmakers were influenced by the intern program.
Second, Bassett offers no authority that this outreach
program offers proof of mixed motive as to her. The
Court’s own research found few relevant cases. In the
direct-evidence context, the Fifth Circuit has required
a nexus between affirmative-action programs and the
disputed employment decision. See Carter v. O’Neill, 78
F. App’x 978, 979 (5th Cir. 2003) (affirming summary
judgment). Another somewhat analogous example comes
from the Northern District of Georgia, Isvaradevan v.
Fulton County, No. 1:06-CV-2504, 2008 WL 11327336, at
*10 (N.D. Ga. Aug. 26, 2008). That court granted summary
judgment on a Title VII race claim because there was no
proof the decisionmaker “applied her general belief about
the benefits of affirmative action to her decision.” Id. These
cases are not perfect fits, but Bassett offers no authority
suggesting that the intern program creates a fact question
whether her decisionmakers were motivated by her race.
Same-race decisionmakers. WLBT argues that
“the two relevant decision-makers involved in Plaintiff’s
discharge were white.” Def.’s Mem. [37] at 13 (citing Kelly
v. Costco Wholesale Corp., 632 F. App’x 779, 783 (5th Cir.
2015)). In Kelly, the Fifth Circuit noted that “membership
in the same protected class as [Plaintiff] bolsters the
39a
Appendix B
inference that age discrimination was not the reason
for [Plaintiff’s] termination.” Kelly, 632 F. App’x at 783
(citing Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir.
1996) (holding that “fact that the actor involved in both
employment decisions is also a member of the protected
class only enhances the [same-actor] inference”)).
This issue is not dispositive. As found in Oncale v.
Sundowner Offshore Services, Inc., people from the same
protected class can still discriminate against each other
based on that classification. 523 U.S. 75, 79, 118 S.Ct. 998,
140 L.Ed.2d 201 (1998) (considering employee of same sex
as decisionmaker). As the Court put it, “nothing in Title
VII necessarily bars a claim of discrimination ‘because of
. . . sex’ merely because the plaintiff and the defendant (or
the person charged with acting on behalf of the defendant)
are of the same sex.” Id. Thus, while there is no bar, id.,
the Fifth Circuit has applied an inference at the final
burden-shifting stage, see Kelly, 632 F. App’x at 783.
Bassett never addresses this legal issue, but the
Court is reluctant to apply an inference because Kelly
and Brown both considered this evidence under a pretext
analysis, not mixed motive. Perhaps it applies here too,
but that issue has not been adequately briefed. In any
event, Bassett’s record evidence fails to meet her burden.
So even without this inference, the claim would still fall
short. The argument is noted for the record.
Bassett’s prima facie case. The strength of the prima
facie case remains a factor at this stage. Reeves, 530 U.S.
at 148-49, 120 S.Ct. 2097. Bassett’s is weak. As noted, her
40a
Appendix B
claim would likely fail at the prima facie stage had the
Court applied the work-rule-violation test. Turner, 675
F.3d at 892-93. Bassett was, however, replaced by someone
outside her protected class.
That was enough to move forward, but, as WLBT
notes, it first offered the position to a White replacement.
Def.’s Mem. [37] at 13 (citing Jones Dep. [39-6] at 69-71).
Bassett says the Court need not “take Defendant’s word
that this was a genuine offer,” Pl.’s Mem. [43] at 19; but
the testimony is undisputed, and speculation is irrelevant,
TIG Ins. Co., 276 F.3d at 759.
WLBT’s attempt to replace Bassett with another
White journalist diminishes the extent to which her
prima facie case supports finding a racial motivation for
the termination decision. See Anderson v. Tupelo Reg’l
Airport Auth., 967 F. Supp. 2d 1127, 1132 (N.D. Miss.
2013), aff’d, 568 F. App’x 287 (5th Cir. 2014), as revised
(May 19, 2014) (finding “less than compelling evidence” of
discrimination when job initially offered to person within
protected class); cf. Reynolds v. Sovran Acquisitions,
L.P., No. 3:14-CV-1879-D, 2015 WL 6501552, at *8 (N.D.
Tex. Oct. 27, 2015), aff’d, 650 F. App’x 178 (5th Cir. 2016)
(holding under similar facts that “[t]his evidence would not
permit a reasonable jury to find that Sovran’s legitimate,
nondiscriminatory reasons are pretextual”).
To be sure, this fact is not dispositive. See Byers v.
Dallas Morning News, Inc., 209 F.3d 419, 426-27 (5th Cir.
2000). But Bassett’s prima facie case does not help her
prove an improper motive. Cf. Bright v. GB Bioscience
41a
Appendix B
Inc., 305 F. App’x 197, 203 (5th Cir. 2008) (affirming
summary judgment because plaintiff failed to prove
pretext “[w]ithin the context of a weak prima facie case”);
Hill v. Fort Bend Indep. Sch. Dist., 275 F.3d 42, 2001
WL 1223672, at *3 (5th Cir. 2001) (unpub.) (same). Again
though, Bassett’s evidence falls short under mixed-motive
analysis.
In sum, Bassett has presented a weak prima facie case,
has offered no comparators, and has not otherwise created
a fact question whether race motivated the decision to
end her employment. Under the circumstances, WLBT
is entitled to summary judgment on her Title VII claim.
B. Noncompetition Clause
Section eleven of Bassett’s 2021 employ ment
agreement with WLBT prohibited Bassett from working
in the local radio or TV market for one year after
“termination of employment, regardless of the reason for
termination.” Agr. [39-3] at 6. Bassett wants the Court
to enter a declaratory judgment that the noncompetition
provision is void under Mississippi law. Compl. [1] at 4;
Pl.’s Mem. [43] at 22.
WLBT fired Bassett on March 14, 2023. Charge [35-1]
at 179. So even if the provision was in effect when she filed
suit, it has now expired. WLBT says that means the issue
is moot and no longer presents an “actual controversy”
under 28 U.S.C. § 2201(a), the Declaratory Judgment Act.
Def.’s Mem. [37] at 15. It denies Bassett can show any
prospect of future harm from the expired agreement. Id.
42a
Appendix B
(citing City of Los Angeles v. Lyon, 461 U.S. 95, 103, 103
S.Ct. 1660, 75 L.Ed.2d 675 (1983)).
In response, Bassett fails to engage with this issue,
seizing instead on WLBT’s somewhat irrelevant comment
that Bassett didn’t seek injunctive relief at the start. Pl.’s
Mem. [43] at 21; see Def.’s Mem. [37] at 15. That’s beside
the point as to mootness or standing, which Bassett never
mentions.
“Mootness is ‘the doctrine of standing in a time
frame. The requisite personal interest that must exist at
the commencement of litigation (standing) must continue
throughout its existence (mootness).’” Envtl. Conserv’n
Org. v. City of Dallas, 529 F.3d 519, 524-25 (5th Cir. 2008)
(quoting Ctr. for Indiv. Freedom v. Carmouche, 449 F.3d
655, 661 (5th Cir. 2006)). One claim in a case may be moot
while another is not. La. Envtl. Action Network v. U.S.
E.P.A., 382 F.3d 575, 581 (5th Cir. 2004).
The Court agrees with WLBT that the validity of
the noncompetition clause is now moot. See Markwardt
v. United Rentals (N. Am.), Inc., No. SA-13-CA-627, 2014
WL 12540713, at *3 (W.D. Tex. Feb. 7, 2014) (reaching
similar holding). Absent any argument to the contrary
from Bassett, the Court grants summary judgment on
this claim as well.
IV. Conclusion
The Court has considered all arguments presented.
Any not specifically addressed here would not change
43a
Appendix B
the outcome. The motion for summary judgment [35] is
granted, and this civil action is dismissed with prejudice.
A separate judgment will issue. Fed. R. Civ. P. 58.
SO ORDERED AND ADJUDGED this the 19th day
of May, 2025.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
44a
Appendix
C
APPENDIX C — ORDER
DENYING
REHEARING
EN BANC OF THE UNITED STATES COURT
OF APPEALS FOR THE FIFTH CIRCUIT,
FILED JUNE 22, 2026
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 25-60278
BARBIE BASSETT,
Plaintiff-Appellant,
v.
GRAY MEDIA GROUP, INCORPORATED,
DOING BUSINESS AS WLBT-TV,
Defendant-Appellee.
Filed June 22, 2026
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:23-CV-3154
ON PETITION FOR REHEARING EN BANC
Before Clement, Douglas, and Ramirez, Circuit Judges.
Per Curiam:
45a
Appendix C
Treating the petition for rehearing en banc as a
petition for panel rehearing (5th Cir. R.40 I.O.P.), the
petition for panel rehearing is DENIED. Because no
member of the panel or judge in regular active service
requested that the court be polled on rehearing en banc
(Fed. R. A pp. P.40 and 5th Cir. R.40), the petition for
rehearing en banc is DENIED.
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