KELLY PATTON v. DISMAS CHARITIES INC (2026)

MEMORANDUM OPINION AND ORDER

Dismas Charities is a private, non-profit entity that provides individuals being released from incarceration with the skills to re-enter society. Colonel Christopher Kelly-Patton began his employment with Dismas Charities in 2006. In 2022, he was promoted to a Regional Vice President position. But shortly after he assumed the position of Regional Vice President, fellow Dismas employees began complaining about Kelly-Patton's management style. These complaints led to an investigation, after which Dismas concluded that Kelly-Patton's management style did not align with Dismas’ values or culture. As a result, Kelly-Patton was terminated in 2023, just over a year after he started as Regional Vice President.

Kelly-Patton claims that his termination was sexual orientation discrimination because he is a heterosexual male and that Jimmy Jones, a homosexual Regional Vice President, was treated more favorably. Kelly-Patton argues that Jones, who was terminated shortly after Kelly-Patton, engaged in misconduct but received special treatment and gifts. Kelly-Patton argues that his own termination violated Title VII, 42 U.S.C. § 1983, and Mississippi state law.

Kelly-Patton's claims fail. As to his Title VII claim, Kelly-Patton does not establish a prima facie case. While he shows that he was qualified for the position, he does not demonstrate that he was treated differently from any similarly situated comparator as he was not treated differently since Jimmy Jones was fired too. Also, Kelly-Patton only presents rumors and speculation as to what Jones did wrong. Regardless, Dismas provided a legitimate, nondiscriminatory reason for Kelly-Patton's termination, and Kelly-Patton failed to show that this reason was pretext. Further, Kelly-Patton fails to show that Dismas Charities was a state actor for purposes of Section 1983. And finally, Kelly-Patton's state law claims of intentional infliction of emotional distress and defamation must be dismissed given the absence of outrageous conduct or any allegation of a false statement, respectively. The Motion for Summary Judgment [22] is granted.

I. BACKGROUND AND PROCEDURAL HISTORY

Dismas Charities is a private non-profit that provides incarcerated individuals with skills to re-enter society. Dismas has two residential re-entry centers in Mississippi: one re-entry center is in Hattiesburg, and the other is in Jackson.

In April 2006, Kelly-Patton was hired as the Program Director for the Hattiesburg re-entry center. In his role as Program Director, Kelly-Patton supervised an Assistant Director, a counselor, an employment specialist, an accounting clerk, a cook, a maintenance worker, and resident monitors.

In September 2022, Kelly-Patton applied for a newly created Regional Vice President position. He was interviewed and hired that month by Jan Kempf, Dismas’ Executive Vice President. As Regional Vice President, Kelly-Patton supervised four centers located in Jackson, Mississippi; Hattiesburg, Mississippi; Montgomery, Alabama; and Atlanta, Georgia. Kelly-Patton was also responsible for supervising the 80 employees who worked across these four centers.

In October 2022, only one month after Kelly-Patton started as a Regional Vice President, a female employee under Kelly-Patton made a complaint. She informed Dismas’ executive management team that Kelly-Patton “disrespected her and managed more like a dictator than a mentor.” [22-2], p. 3. As a result, Karen Hamilton, a Human Resources representative, contacted Kelly-Patton about the complaint in November 2022. [22-2], p. 7. She suggested that Kelly-Patton “consider making changes to how he leads” because “some of his direct reports feel that he is too direct [and] uncompromising[.]” Id.

Another complaint was made through Dismas’ anonymous complaint portal in September 2023. See [22-5]. The anonymous complaint said that “RVP Chris Kelly is not treating his Directors/Assistant Directors properly[.]” Id. at p. 1. Specifically, the complainant found “[Kelly-Patton's] treatment to be discouraging and highly detrimental for professional growth with the company.” Id. Nicholas Cristello, the Human Resources Director, investigated the anonymous complaint. [23], p. 6; [22-2], p. 3.

Based on the investigation, Cristello “concluded that [Kelly-Patton's] management style was not in line with the culture or core values of Dismas.” Id. Cristello sent his conclusion, as well as a summary of the investigation, to Kempf, who decided to terminate Kelly-Patton. Id. at p. 4. Kelly-Patton was terminated from his position on October 3, 2023. Id.; [22-8], p. 1. Cristello and Kempf said they were unaware of Kelly-Patton's sexual orientation while he worked at Dismas, or at the time of his termination. [22-2], p. 4; [22-8], p. 2.

In December 2023, Kelly-Patton wrote a letter to the Dismas Board of Directors, protesting his termination. See [22-9]. Kelly-Patton claimed that his “termination did not fall into the category of a reasonable response from a reasonable employer after a proper investigation,” but was “wrongful termination.” Id. at p. 1. Kelly-Patton argued that Jones, a fellow Regional Vice President,¹ received preferential treatment. Id. at p. 2. Kelly-Patton explained that, while Jones engaged in misconduct, Kempf would bring Jones gifts and take him on shopping trips “for purposes of purchasing items for a [Dismas] center.” [22-1], p. 23. That said, Kelly-Patton later confirmed that he did not report any of Jones’ alleged misconduct because “it was only rumors.” Id. at p. 26. In any event, Jones was terminated in February 2024. [22-1], pps. 8-9; [23], p. 3; [25], p. 10.

Kelly-Patton filed a charge with the EEOC in March 2024. [1-2], p. 1. The EEOC issued Kelly-Patton a right to sue letter in May 2024. [1-3]. Kelly-Patton then filed his Complaint in this Court on July 29, 2024, bringing claims under Title VII, 42 U.S.C. § 1983, and various state laws. [1], p. 1. Dismas Charities has now filed a Motion for Summary Judgment [22].

II. STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows 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). It is the burden of the nonmovant to “go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). To rebut a properly supported motion for summary judgment, the opposing party must show, with “significant probative evidence,” that there is a genuine issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000).

“A genuine dispute of material fact means that evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quotations omitted). “If the evidence is merely colorable, or is not significantly probative, summary judgment is appropriate.” Cutting Underwater Techs. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 516 (5th Cir. 2012) (quotations omitted).

The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citation omitted). When deciding whether a genuine fact issue exists, “the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). However, “[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citation omitted).

III. DISCUSSION

A. Title VII

Title VII forbids employers from discriminating against an employee “with respect to his compensation, terms, conditions, or privileges of employment, because of his race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). A plaintiff can prove intentional discrimination under Title VII through either direct or circumstantial evidence. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007). Direct evidence is evidence which, if believed, proves the fact without inference or presumption. Sandstad v. CB Richard Ellis, Inc., 308 F.3d 893, 897 (5th Cir. 2002). But when, as here, a plaintiff relies on circumstantial evidence to prove his Title VII discrimination claim, the McDonnell Douglas burden-shifting framework applies. Shahrashoob v. Tex. A&M Univ., 125 F.4th 641, 648-49 (5th Cir. 2025); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

Under this framework, Kelly-Patton bears the initial burden of making out a prima facie case of sexual orientation discrimination. Shahrashoob, 125 F.4th at 649 (citing Watkins v. Tregre, 997 F.3d 275, 281-82 (5th Cir. 2011)). To meet his initial burden, he must show that he (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 his protected group or was treated less favorably than other similarly situated employees outside his protected group. Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 339 (5th Cir. 2021) (quoting Stroy v. Gibson ex rel. Dep't of Veterans Affs., 896 F.3d 693, 698 (5th Cir. 2018)).

If Kelly-Patton establishes a prima facie case, the burden then shifts to Dismas to articulate a legitimate, nondiscriminatory reason for its employment action. McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007) (abrogated on other grounds). “The employer's burden is only one of production, not persuasion, and involves no credibility assessment.” Id. If Dismas can show a legitimate, nondiscriminatory reason for its decision, then the presumption of discrimination disappears. Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011).

In the final step of the burden-shifting framework, Kelly-Patton is given a “full and fair opportunity” to demonstrate that Dismas’ proffered reason is merely pretext for unlawful discrimination. Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 258, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). One example of pretext is when a false reason is given for an adverse employment action that hides or serves as a cover-up of the employer's true motive for the action. Thomas v. Plains Mktg., L.P., Civ. Action No. 2:24-cv-25-TBM-RPM, 2025 WL 3252403, at *4 (S.D. Miss. Sept. 30, 2025) (citing McDonnell Douglas, 411 U.S. at 805).

i. Prima facie case

In support of his Title VII claim, Kelly-Patton says that he was treated less favorably than an employee with a different sexual orientation. Specifically, he offers Jimmy Jones as a similarly situated comparator. Kelly-Patton says that Jones, “a Homosexual Regional Vice President,” was not terminated from his position, despite being “accused of intentional severe infractions multiple times regarding his work performance.” [25], pps. 4-5. But Jones was ultimately fired as well. So it is undisputed that Kelly-Patton and Jones were treated the same, not differently. The Court could stop here. Nonetheless, the Court will address the parties’ remaining arguments for completeness.

The parties do not dispute that Kelly-Patton belongs to a protected group based on his sexual orientation,² or that he suffered an adverse employment action when he was terminated. See [23], p. 10 (“Dismas concedes the first and third prongs of the prima facie case — that Plaintiff is a member of a protected class and that he was discharged.”). But the parties disagree as to the second and fourth elements—whether Kelly-Patton was qualified for his position, and whether any similarly situated comparator was treated more favorably.

A. Qualified for the position

The Court must first decide whether Kelly-Patton was qualified to serve as a Regional Vice President. To determine whether an employee was qualified for the position at issue, courts consider objective qualifications. U.S. Equal Emp. Opp. Comm'n v. Council for Advancement of Soc. Servs. & Educ., 814 F. Supp. 3d 675, 684 (W.D. La. 2026), reconsideration denied sub nom. U.S. Equal Emp. Opp. Comm'n v. Council for the advancement of Soc. Servs. & Educ., No. CV 23-0808, 2026 WL 412136 (W.D. La. Feb. 13, 2026) (citing Berquist v. Washington Mut. Bank, 500 F.3d 344, 350 (5th Cir. 2007)). The “plaintiff's initial burden of showing [his] qualification for a position is met simply by showing [he] met the objective qualifications for the position.” Hill Scott v. Dallas Hosp. Dist., Civ. Action No. 3:08-CV-600-O, 2010 WL 71038, at *5 (N.D. Tex. Jan. 7, 2010) (citing Medina v. Ramsey Steel, 238 F.3d 674, 681 (5th Cir. 2001)); see also Roy v. Crews, 712 F. App'x 367, 369 (5th Cir. 2017) (finding that plaintiff was not objectively qualified when she did not have five years of experience as required for the position). Generally, an employee can show he is qualified by “showing that he continued to possess the necessary qualifications for his job at the time of the adverse action[.]” Berquist, 500 F.3d at 350.

Kempf, Dismas’ Executive Vice President, promoted Kelly-Patton to Regional Vice President in September 2022. [1], p. 2. Prior to his promotion, Kelly-Patton served as a Program Director in Hattiesburg, Mississippi, for sixteen years. Id.; [23], p. 5. It is not disputed that Kelly-Patton was qualified for the Regional Vice President when he was promoted in 2022. The dispute as to Kelly-Patton's qualifications center around whether he “continued to possess the necessary qualifications” to serve as Regional Vice President at the time of the termination. Berquist, 500 F.3d at 350; see also [23], pps. 6-7.

Kempf terminated Kelly-Patton from his Regional Vice President role in October 2023, just over a year after he started in the position. [1], p. 2; [23], p. 2.³ The issues with Kelly-Patton's employment, according to Dismas, began well before his termination. On October 10, 2022, just one month after he started as Regional Vice President, Dismas received a complaint from a manager under Kelly-Patton. [23], p. 6; [22-4], p. 1. The complaint explained that Kelly-Patton “speaks more negatively to the females—more so than males” and that “he manages like a dictator rather than a mentor[.]” [22-4], p. 1.

In November 2022, Dismas informed Kelly-Patton of the complaint and asked him to change his leadership style. [23], p. 6; [22-4], p. 2. Less than a year after that discussion, an anonymous complaint was made through Dismas’ complaint portal. [23], p. 6; [22-2], p. 3; [22-5]. The complaint noted that “RVP Chris Kelly is not treating his Directors/Assistant Directors properly[.]” [22-5], p. 3. Specifically, the complainant found Kelly-Patton's “treatment to be discouraging and highly detrimental for professional growth with the company.” Id. Cristello investigated the anonymous complaint. [23], p. 6; [22-2], p. 3.

During his investigation, Cristello “spoke with three Program Directors and one Assistant Director” under Kelly-Patton's supervision. [22-2], p. 3. These individuals told Cristello “that coming to work was difficult, they all felt uneasy, they were walking on eggshells, and that nothing was ever good enough” with Kelly-Patton. Id. Two Program Directors even attempted to “transfer to other residential centers and out from under [Kelly-Patton's] supervision in large part because of [his] management style.” Id. Following the investigation, Cristello informed Kempf that “[Kelly-Patton's] management style was not in line with the culture or core values of Dismas.” Id. Kempf terminated Kelly-Patton because his “management style in his role as Regional Vice President did not comport with the culture and values of Dismas.” [22-8], p. 1.

Nonetheless, Dismas’ argument that Kelly-Patton was not qualified for the Regional Vice President position misses the mark. Dismas argues that Kelly-Patton was not qualified due to his management style.⁴ And “in determining qualification at the prima facie stage, courts need only focus on objective job qualifications[,]” such as training, experiencing, and physical capacity. See Johnson v. Epsilon Data Mgmt., LLC, No. 3:23-cv-1016-D, 2024 WL 5240151, at *4 (N.D. Tex. Dec. 27, 2024) (quoting EEOC v. Ryan's Pointe Houston, L.L.C., 2022 WL 4494148, at *5 (5th Cir. Sept. 27, 2022)). When viewing the facts in the light most favorable to Kelly-Patton, as the Court must do at this stage, Kelly-Patton, as the non-moving party, has met his burden in establishing that he was qualified for the position.

B. Similarly situated comparator

Even though Kelly-Patton successfully demonstrated that he remained qualified to serve as Regional Vice President, he is unable to set forth a prima facie case as Jimmy Jones was not treated differently and Jones was not similarly situated.

The Fifth Circuit requires an employee who offers a fellow employee as a comparator to demonstrate that the employment actions at issue were taken under “nearly identical circumstances.” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009). Employment actions include ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating. Jackson v. Honeywell Intern., Inc., 601 F. App'x 280, 284 (5th Cir. 2015). Employment actions are taken under nearly identical circumstances when the employees being compared held the same job or responsibilities, shared the same supervisor or had their employment determined by the same person, and have essentially comparable violation histories. Lee, 574 F.3d at 260. “And, critically, the plaintiff's conduct that drew the adverse employment [action] must have been ‘nearly identical’ to that of the proffered comparator who allegedly drew [a] dissimilar employment [action].” Id. (citing Perez v. Tex. Dep't of Criminal Justice, 395 F.3d 206, 213 (5th Cir. 2004)).

1. Comparable violation histories

As the Supreme Court has instructed, the similitude of employee violations may turn on the “comparable seriousness of the offenses for which disciplined was meted out and not necessarily on how a company codes an infraction under its rules and regulations.” Lee, 574 F.3d at 261 (citing McDonald v. Santa Fe Trail, 247 U.S. 273, 283 n.11, 96 S. Ct. 2574, 49 L. Ed. 2d 493 (1976)). Kelly-Patton really only presents speculation related to Jones’ alleged violations though.

Kelly-Patton was promoted to Regional Vice President in September 2022. [1], p. 2. But one month after his promotion, subordinate employees complained about Kelly-Patton's management style. [22-4], p. 1; [23], p. 6. A month after that, a Human Resources representative at Dismas informed Kelly-Patton of the complaints and suggested that “he consider making changes to how he leads.” [22-4], p. 2. Less than a year later, someone submitted an anonymous complaint about Kelly-Patton's management style. [22-2], p. 3; [23], p. 6. Kelly-Patton was terminated as a result.

Kelly-Patton provides only conclusory allegations in his briefing as to Jones’ violation history. Kelly-Patton claims that “Jones received a complaint from the Augusta, Georgia Director” and that “Jones was accused of intentional severe infractions multiple times regarding his work performance.” [1], p. 2; see also [25], p. 10. This is the extent of the information Kelly-Patton presents regarding Jones’ violation history.⁵ Indeed, Kelly-Patton does not explain when any violations occurred, how often they occurred, or the conduct that served as the basis for any violation. And while Kelly-Patton alleges that “Kempf tolerated Jones’ management style,” he does not explain any negative aspects of Jones’ management style or how Jones’ violation history was comparable to his own. [25], p. 5.

2. Conduct

The conduct at issue is not “nearly identical” when the difference between the plaintiff's conduct and that of their alleged comparator accounts for the difference in the employment actions. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2021); see also Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 304-05 (5th Cir. 2000) (requiring plaintiff to show that their employer treated others differently in “nearly identical circumstances” and finding that “the striking differences between the two [employee's] situations more than account for the different treatment they received[.]”).

Kelly-Patton and Jones did not engage in nearly identical conduct. Again, Kelly-Patton does not put forward actual evidence of Jones’ conduct. Rumors and speculation are not enough. Kelly-Patton was terminated based on his alleged militaristic management style which “did not fit the culture of Dismas.” [23], p. 12. On the other hand, there is nothing to suggest that Jones had a militaristic management style, or that Dismas was concerned that his management style “did not fit the culture[.]” Id. Kelly-Patton does not demonstrate, much less explain, that “the misconduct for which [he] was discharged was nearly identical to that engaged in by [Jones] whom [Dismas] retained.” Wallace, 271 F.3d at 221.

At any rate, Jones was terminated shortly after Kelly-Patton. See [23], p. 3. So they were treated the same. And Kelly-Patton admitted that he was aware of Jones’ termination. [22-1], pps. 8-9. The conduct that led to Jones’ termination, at least according to Kelly-Patton's deposition testimony, was improper use of Dismas’ wilderness retreat facility in Augusta, Georgia. [22-1], pps. 40-41. This conduct is quite different from Kelly-Patton's aggressive, militaristic management style.

ii. Legitimate, nondiscriminatory reason

Purely in the alternative, under the next stage of the McDonnell Douglas framework, the burden shifts, and Dismas must produce legitimate, nondiscriminatory reasons for why Kelly-Patton was terminated. Watkins, 997 F.3d at 282.

To prevail at this stage, Dismas must set forth reasons for its actions which, “if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). These reasons must be “clear and reasonably specific.” Burdine, 450 U.S. at 258. But Dismas “need not persuade the court that it was actually motivated by the proffered reasons.” Id. at 254. “If the employer produces any evidence ‘which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action,’ then the employer has satisfied the burden of production.” Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995) (quoting St. Mary's Honor Ctr., 509 U.S. at 507).

Dismas claims they terminated Kelly-Patton because his “management style did not fit the culture of Dismas[.]” [23], p. 12. To be sure, Dismas received a complaint about Kelly-Patton's management style shortly after he assumed the role of Regional Vice President. [22-2], p. 3. Dismas informed Kelly-Patton of the complaint and directed him to change his management style, but this was not enough. Another complaint was made, which Dismas investigated. Id. After the investigation, Dismas determined that Kelly-Patton's management style was militaristic and therefore contrary to Dismas’ culture and values. [23], p. 12. Kelly-Patton was terminated as a result.

Dismas’ proffered reason for terminating Kelly-Patton—his poor management style—is indeed a legitimate, nondiscriminatory reason. See Earle v. Aramark Corp., 247 F. App'x 519, 524 (5th Cir. 2007) (plaintiff's poor job performance was a legitimate, nondiscriminatory reason for termination, shifting burden back to plaintiff); Manora v. Donahoe, 439 F. App'x 352, 356 (5th Cir. 2011) (finding that employer had articulated a legitimate, nondiscriminatory reason for not reselecting an employee based on his management style). And Dismas provides ample evidence to show Kelly-Patton's alleged poor management style, including both complaints, a compilation of statements regarding Kelly-Patton's management style, and sworn declarations from both Cristello and Kempf. See [22-2], [22-4], [22-5], [22-6], [22-7], [22-8].

Because Dismas’ burden at the second step of the McDonnell Douglas framework is one of production rather than persuasion and “involves no credibility assessment,” the Court finds the proffered reasons meet this standard. McCoy, 492 F.3d at 557 (abrogated on other grounds). Dismas has provided evidence that permits the conclusion that there was a legitimate, nondiscriminatory reason for terminating Kelly-Patton.

iii. Pretext

Because Dismas has produced a legitimate, nondiscriminatory reason for terminating Kelly-Patton, the “presumption of discrimination [has] disappear[ed],” and Kelly-Patton now “bears the ultimate burden of persuading the trier of fact by a preponderance of the evidence that [Dismas] intentionally discriminated against [him] because of [his] protected status.” Vaughn, 665 F.3d at 637 (quoting Wallace, 271 F.3d at 219). In other words, Kelly-Patton must provide substantial evidence to raise a genuine issue of fact as to pretext by “put[ting] forward evidence rebutting each of the nondiscriminatory reasons [Dismas] articulates.” Wallace, 271 F.3d at 219-20. “Pretext can be proven by any evidence that casts doubts on the credence of the employer's proffered justification for the adverse employment action.” Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 579 (5th Cir. 2020). Accordingly, the Court must now determine whether Kelly-Patton “can prove [his] claim according to traditional principles of ‘but for’ causation” to meet his burden under this prong. Saketkoo, 31 F.4th at 1002.

Kelly-Patton argues, with no support, that Dismas’ reason for terminating him is pretext. Indeed, Kelly-Patton merely says that “Dismas’ stated reason for Colonel Kelly's termination is not logical and did not actually motivate the employer to take the severe adverse action. There is a material and significant contradiction between Colonel Kelly's yearly performance evaluations and bonuses and the proffered nondiscriminatory reason for his termination.” [25], pps. 11-12. Absent from Kelly-Patton's response, however, is any evidence of Kelly-Patton's performance evaluations or bonuses. As a result, any argument relating to pretext is so lacking in information that it does not create a genuine issue of material fact.

And nothing suggests that Kelly-Patton's sexual orientation was in the mind of any employee who participated in the termination process. See [22-6]; [22-8]. Indeed, Kelly-Patton produced no evidence to show that either Kempf or Cristello was aware of Kelly-Patton's sexual orientation. As a result, an employer cannot make an employment decision based on a protected characteristic if they were unaware of that characteristic. See Hunter v. United Parcel Serv., Inc., 697 F.3d 697, 703, 704 (8th Cir. 2012) (“In cases of discrimination based on a protected status that is not necessarily obvious, ․ the employee must show that the employer was sufficiently aware of the employee's status to have been capable of discriminating based on it.”); Romano v. Verisign, Inc., Civil Action No. 1:22-CV-549(AJT/IDD), 2023 WL 1797890, at *5 (E.D. Va. Feb. 7, 2023) (finding that employer had no discriminatory intent when they had no “relevant knowledge about [the employee's] sexual orientation”). Because Kelly-Patton has presented no evidence that Dismas was aware of his sexual orientation, the Court cannot conclude that Dismas’ proffered reason for terminating Kelly-Patton was merely pretext for sexual orientation discrimination.

Finally, and as noted earlier in the opinion, Kelly-Patton was hired and fired by Kempf. Under the same actor inference, there is “a presumption that animus was not present where the same actor responsible for the adverse employment action either hired or promoted the employee at issue.” Soublet v. Louisiana Tax Comm'n, 766 F. Supp. 2d 723, 729 (E.D. La. 2011) (quoting Spears, 337 F. App'x at 421-22); see also Ako-Doffou v. Univ. of Tex., 71 F. App'x 440, 440 (5th Cir. 2003) (explaining that the Fifth Circuit has held “that an inference against a finding of pretext is present where the same actor is responsible for the decision to both hire and fire the complaining employee.”). In any event, Kelly-Patton's claims are not of such quality and weight to indicate that Dismas’ proffered reasons were merely pretext for discrimination.

Kelly-Patton cannot meet his burden. Dismas’ proffered reason for terminating Kelly-Patton is not pretext. His Title VII sex discrimination claim fails.

B. 42 U.S.C. § 1983

Section 1983 “provides a federal cause of action for the deprivation, under color of law, of a citizen's ‘rights, privileges, or immunities secured by the Constitution and laws’ of the United States.” Livadas v. Bradshaw, 512 U.S. 107, 132, 114 S. Ct. 2068, 129 L. Ed. 2d 93 (1994). To prevail on a Section 1983 claim, a plaintiff must establish that: (1) he has been deprived of a right secured by the Constitution or the laws of the United States and (2) the deprivation was caused by a person acting under color of state law. See Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir. 1999); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (1978); Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005). But private parties “generally are not considered to act under color of law ․ [and] are not considered state actors.” Boudreaux v. Breaux, No. 6:23-CV-00897, 2025 WL 1742645, at *3 (W.D. La. June 23, 2025) (quoting Lugar v. Edmonson Oil Co., Inc., 457 U.S. 922, 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982)). Indeed, “the under-color-of-state-law element of [Section] 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Richard v. Hoechst Celanese Chem. Grp., Inc., 355 F.3d 345, 352 (5th Cir. 2003).

As an initial matter, “[w]hen a Section 1983 claim is used as a parallel to a Title VII claim under a given set of facts, the elements required to be established for each claim are deemed the same under both statutes.” Swilley v. City of Houston, 457 F. App'x 400, 404 (5th Cir. 2012) (quoting Merwine v. Bd. of Trs. for State Institutions of Higher Learning, 754 F.2d 631, 635 n.3 (5th Cir. 1985)). The failure of Kelly-Patton's Title VII claim dooms his Section 1983 claim.

In the alternative, the Court must determine whether Dismas was acting under color of state law when it terminated Kelly-Patton's employment, “with the critical inquiry being whether ‘the alleged infringement of federal rights [can be] fairly attributable to the State.’ ” Cornish, 402 F.3d at 549 (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982)). Though “[p]rivate individuals generally are not considered to act under color of state law,” “it is possible, in limited circumstances, for a private individual to be considered a state actor.” Thurman v. Granderson, Civ. Action No. 3:26-CV-321-KHJ-MTP, 2026 WL 1855494, at *2 (S.D. Miss. June 5, 2026), report and recommendation adopted, No. 3:26-CV-321-KHJ-MTP, 2026 WL 1853808 (S.D. Miss. June 26, 2026). Private action may be deemed state action, for purposes of Section 1983, only where the challenged conduct may be “fairly attributable to the [s]tate.” Bass, 180 F.3d at 241. Courts have used multiple tests to determine whether private action may be fairly attributable to the state, including the “public function test,” “state compulsion test,” “nexus” or “state action test,” and “joint action test.” Bass, 180 F.3d at 241-42.

Under the public function test, “a private entity may be deemed a state actor when that entity performs a function which is traditionally the exclusive province of the state.” Id. The state compulsion test considers whether the state “exercised coercive power or has provided such significant encouragement, either overt or covert, that the [private action] must in law be deemed to be that of the State.” Id. (quoting Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982)). Under the nexus or state action test, “state action may be found where the government has so far insinuated itself into a position of interdependence with the [private actor] that it was a joint participant in the enterprise.” Bass, 180 F.3d at 242 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974)). Finally, under the joint action test, a private actor is considered a state actor if the private actor is a “willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980).

Deciding whether a deprivation of a protected right is fairly attributable to the state “begins by identifying the specific conduct of which the plaintiff complains.” Cornish, 402 F.3d at 550. Here, that conduct is Dismas terminating Kelly-Patton's employment. “Therefore, at issue is whether [Dismas’] decisions as an employer are fairly attributable to the State.” Id. Kelly-Patton seemingly relies on the public function, nexus, and joint action tests ⁶ to establish that Dismas is a state actor. [25], pps. 12-15.

The “[a]cts of ․ private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.” Rendell-Baker, 457 U.S. at 841. And “[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment.” Blum v. Yaretski, 457 U.S. 991, 1004, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982). To make the requisite showing of state action by a regulated entity, Kelly-Patton must establish “a sufficiently close nexus between the State and the challenged action of the regulated entity.” Cornish, 402 F.3d at 550 (quoting Blum, 457 U.S. at 1004) (emphasis added).

Kelly-Patton argues that “[t]he government is involved and supervises penal functions of Dismas.” [25], p. 15. But that argument is unavailing. The issue is whether Dismas acted under color of state law in terminating Kelly-Patton's employment, not whether its operation of residential re-entry centers was state action. See Cornish, 402 F.3d at 550. Kelly-Patton puts forward no facts as to why Dismas’ role as an employer constituted a state action. Accordingly, Dismas cannot be considered a state actor under the public function test. See id.

For purposes of the nexus test, Kelly-Patton fails to mention any state involvement with his termination. Rather, Kelly-Patton incorrectly focuses on Dismas’ role as “[p]rivate operators of prison facilities[.]” [25], p. 15. This is not enough to show that Dismas was a state actor under the nexus test, at least as it relates to Kelly-Patton's termination. See Cornish, 402 F.3d at 551.

Finally, for the joint action test, nothing suggests that the state was a willful participant in Kelly-Patton's termination. Dennis, 449 U.S. at 27. Again, Kelly-Patton has provided no facts to show that the state “encouraged, compelled, or was any way involved in [Dismas’] decision to terminate [Kelly-Patton's] employment.” Cornish, 402 F.3d at 550.

To reiterate, Kelly-Patton recites only the bare elements needed to transform a private actor into a state actor for purposes of Section 1983, but he does not explain how the facts of this case meet those elements. See Tilga v. United States, No. CIV 14-256 JP/RHS, 2014 WL 12518918, at *4 (D.N.M. June 19, 2014) (“Plaintiffs set forth citations to case law in support of the various tests that courts may employ to determine the question of whether a purported wrongdoer acted under color of state law. However, Plaintiffs never allege how conduct by Dismas has any connection to state action other than to summarily urge that a halfway house is similar to a state-run prison. This unsupported, conclusory argument is not sufficient.”). As a result, Kelly-Patton fails to state a cognizable claim under Section 1983.

C. State Law Claims

Along with the federal claims raised, Kelly-Patton brings state-law claims of intentional infliction of emotional distress and defamation.⁷ See [1], pps. 4-6. For the reasons articulated below, both claims fail.

i. Intentional Infliction of Emotional Distress

Under Mississippi law, a claim of intentional infliction of emotional distress requires a plaintiff show that: “(1) The defendant acted willfully or wantonly towards the plaintiff by committing certain described actions; (2) the defendant's acts are ones ‘which evoke outrage or revulsion in civilized society’; (3) the acts were directed at, or intended to cause harm to, the plaintiff; (4) the plaintiff ‘suffered severe emotional distress as a direct result of the acts of the defendant’; and (5) ‘such resulting emotional distress was foreseeable from the intentional acts of the defendant.’ ” Pointer v. Rite Aid Headquarters Corp., 327 So. 3d 159, 170 (Miss. Ct. App. 2021) (quoting Rainer v. Wal-Mart Assocs., Inc., 119 So. 3d 398, 403 (Miss. Ct. App. 2013)). The conduct alleged must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Bowden v. Young, 120 So. 3d 971, 980 (Miss. 2013) (quoting Pegues v. Emerson Elec. Co., 913 F. Supp. 976, 982 (N.D. Miss. 1996)).

Kelly-Patton puts forward no facts that rise to the requisite level. He states that Dismas’ conduct of firing him after seventeen years without notice and in the absence of any disciplinary violations or severance package “caused [Kelly-Patton] severe distress.” [25], p. 11-12. But Mississippi is an at-will employment state, meaning “[i]n the absence of an employment contract for a specified term, all employees are deemed to be at-will.” Griffin v. Preferred Care Developmental Centers of Mississippi, Inc., 199 F.3d 440, at *1 (5th Cir. 1999). Indeed, Kelly-Patton was fired because his employer thought he was no longer a good employee, which is perfectly permissible. General distress from termination will not typically suffice to state a claim for intentional infliction of emotional distress. See Griffin, 199 F.3d at *2 (“A claim for intentional infliction of emotional distress generally is not permitted in ordinary employment disputes.”).

ii. Defamation

A showing of defamation requires a plaintiff “to establish a false statement having the capacity to injure the plaintiff's reputation, in addition to other elements.” Funderburk v. Johnson, 935 So. 2d 1084, 1101 (Miss. Ct. App. 2006). Allegations must be “of sufficient particularity so as to give the defendant or defendants notice of the nature of the complained-of statements.” Chalk v. Bertholf, 980 So. 2d 290, 297 (Miss. Ct. App. 2007). This means that the complaint must “set forth the statements, paraphrased or verbatim, that constituted [defamation].” Id. at 298.

In his response to the present motion, Kelly-Patton alleges that Dismas defamed him through Jan Kempf's informing a Federal Bureau of Prisons representative that Kelly-Patton had been discharged. [25], p. 1. He argues that “Kempf's statements to a Bureau of Prison (BOP) regarding [Kelly-Paton]’s termination were confidential and negative,” and that “Kempf did not have permission ․ to share [Kelly-Paton's] confidential personnel information.” [25], p. 16. But Kelly-Patton does not put forth a specific statement in support of his defamation claim, let alone a statement that was actually false. Funderburk, 935 So. 2d at 1101. Indeed, even if his vague allegation is true, a statement that Kelly-Patton had been terminated would not have been false. This is fatal to the claim.

Accordingly, both of Kelly-Patton's state-law claims must be dismissed with prejudice.

IV. CONCLUSION

IT IS THEREFORE ORDERED AND ADJUDGED that Dismas Charities’ Motion for Summary Judgment [22] is GRANTED. Kelly-Patton's claims against Dismas Charities are DISMISSED WITH PREJUDICE.

SO ORDERED AND ADJUDGED, this the 29th day of September, 2026.

FOOTNOTES

1.   Jones supervised centers in Orlando, Florida; Macon, Georgia; Savannah, Georgia; Atlanta, Georgia; and Dania Beach, Florida. [25], p. 4.

2.   See Bostock v. Clayton Cnty., 590 U.S. 644, 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020); Olivarez v. T-mobile USA, Inc., 997 F.3d 595, 598 (5th Cir. 2021) (“discrimination on the basis of sexual orientation or gender identity is a form of sex discrimination under Title VII.”).

3.   Kempf promoted Kelly-Patton to Regional Vice President in September 2022, and she also terminated Kelly-Patton from that same role in October 2023. [1], p. 2; [23], pps. 2-3. Dismas argues that it is entitled to the “same actor” inference because Kempf promoted and terminated Kelly-Patton as Regional Vice President. [23], p. 3. “The same actor inference creates a presumption that animus was not present where the same actor responsible for the adverse employment action either hired or promoted the employee at issue[.]” Grelle v. City of Windcrest, 539 F. Supp. 3d 657, 667 (W.D. Tex. 2021) (citing Spears v. Patterson UTI Drilling Co., 337 F. App'x 416, 421-22 (5th Cir. 2009)). This inference is stronger when the same supervisory employee hires and fires a plaintiff within a short period of time. Green v. Univ. of Mississippi, Civil Action No. 3:24-CV-233-SA-JMV, 2025 WL 3539292, at *12 (N.D. Miss. Dec. 10, 2025). Only a year and one month passed from the time that Kempf promoted Kelly-Patton in September 2022 to when she terminated him in October 2023. And while the presumption created by the same actor inference is rebuttable, Kelly-Patton makes no argument to rebut this presumption. Id.; see [25]. Further, and for the reasons explained in this opinion, Kelly-Patton has not met his burden to prove a prima facie case. See Grelle, 539 F. Supp. 3d at 667 (declining to consider “same actor inference” on summary judgment where plaintiff met his burden).

4.   Kelly-Patton's management style does not relate to his qualifications. It relates to Dismas’ legitimate, nondiscriminatory reasons for terminating Kelly-Patton. In fact, “objective qualifications are best treated at the first step of the analytical framework, and the subjective criteria and other supporting evidence are best treated at the second and third steps.” Medina, 238 F.3d at 681 (quoting Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339, 342 (10th Cir. 1982)). As a result, the Court will consider these arguments at the appropriate stage in the McDonnell Douglas framework.

5.   Though not mentioned in the Response [25] to the Motion for Summary Judgment, Kelly-Patton referenced rumors in his deposition (1) that Jones profited from a vending machine at a residential center in Augusta, Georgia, (2) that Jones gave preferential treatment to a maintenance vendor, (3) that Jones improperly used Dismas’ money, and (4) that Jones set up vending machines, internet, and cable at a wilderness retreat owned by Dismas for his personal use. [22-1], pps. 26, 40, 41. Kelly-Patton admitted that these were rumors and that he never reported any of Jones’ alleged misconduct. Id. at p. 27. Perhaps that is why these alleged violations were not briefed. Even if these were true, and even if Kelly-Patton reported these violations to Dismas, this alleged misconduct was not similar to Kelly-Patton's as the alleged violations still lack specifics to be able to compare. See Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001) (employees who committed different violations were not nearly identical); Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990) (employees who engaged in different violations of company policy were not nearly identical).

6.   Relying on a Ninth Circuit opinion, Kelly-Patton claims that the “the symbiotic relationship test is a derivative of the joint action test.” [25], p. 14 (citing Brunette v. Humane Soc'y of Ventura Cnty., 294 F.3d 1205, 1213 (9th Cir. 2002), as amended on denial of reh'g and reh'g en banc (Aug. 23, 2002)). But by the text of the cited opinion, it appears that the symbiotic relationship is more like the nexus test. Brunette, 294 F.3d at 1213 (“in a symbiotic relationship the government has so far insinuated itself into a position of interdependence (with a private entity) that it must be recognized as a joint participant in the challenged activity.”); cf. Bass, 180 F.3d at 242 (under the nexus test, state action exists “where the government has so insinuated itself into a position of interdependence with the [private actor] that it was a joint participant in the enterprise.”). Still, out of an abundance of caution, the Court will also consider whether Dismas is a state actor under the joint action test.

7.   Though not specifically raised as a Count in his Complaint, Kelly-Patton alleged that “Defendant has either directly, or by ratification, slandered, defamed, and/or libeled Colonel Kelly by characterizing him in the manner in which they have.” [1], p. 4. The Court also notes that while Kelly-Patton also initially brought state-law claims of negligent infliction of emotional distress and wrongful termination, those claims have since been dismissed. See [19].

TAYLOR B. McNEEL, UNITED STATES DISTRICT JUDGE