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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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