United States District Court, S.D. Mississippi, Northern Division
ORDER DENYING SUMMARY JUDGMENT
T. WINGATE UNITED STATES DISTRICT JUDGE
this court is defendant Mississippi Department of
Rehabilitation Services' summary judgment motion filed
pursuant to Rule 56 of the Federal Rules of Civil Procedure
[doc. no. 23]. Plaintiff John Calvin opposes the motion. On
April 18, 2017, this court heard oral arguments from each
side and, thereafter, ruled from the bench. This court denied
defendant's motion. Set out below is the rationale for
the court's ruling.
plaintiff herein, John Calvin (“Calvin”),
instituted on November 17, 2015, this lawsuit against the
defendant Mississippi Department of Rehabilitation Services
(“MDRS”). Calvin, a former employee of MDRS,
claims that the defendant has discriminated against him on
account of his race, African American. He contends that the
defendant unlawfully denied him a promotion to Bureau
Director Deputy. MDRS' conduct in this matter, he says,
violated Title VII of the Civil Rights Act of
and 42 U.S.C. § 1981.
earlier stated, on April 18, 2017, this court heard oral
arguments on the outstanding claims. During that hearing,
plaintiff abandoned his §1981 claim, confessing that it
was not appropriate in that the defendant is a public entity.
Oden v. Oktibbeha County, 246 F.3d 458
(5thCir. 2001) (Section 1981 implies a cause of
action against private actors). Where the defendant is a
state actor, plaintiffs have no cause of action under
§1981; rather violations of § 1981 must be brought
under § 1983. Shedrick v. District Bd. of Trustees
of Miami-Dade College, 941 F.Supp.2d 1348 (S.D. Fla.
2013; Bryant v. Jones, 575 F.3d 1281
(11th Cir. 2009); See Jett v. Dallas
Independent School Dist., 491 U.S. 701 (1989), Calvin
was employed with the defendant from 1975 until April, 18,
2013. Three times the defendant promoted him during this time
of 2012, Calvin applied for the Bureau Director Deputy
position. The defendant appointed an interview panel
consisting of Tarea Stout, Shirley Brown, Ryan Beard, and Lee
Alderman to interview the applicants. Four persons applied.
These four applicants included plaintiff and a Mike Byrd
(“Byrd”), a Caucasian. Byrd was the successful
applicant; supposedly, the interview panel scored Byrd the
highest, based upon the panel's interview of all four
time of the interview, Calvin had thirty-seven years of
experience with MDRS. Byrd had thirty-two years with the
organization. Both Calvin and Byrd have master's degrees.
At the time of the interviews, Calvin served as a district
manager. Byrd was a facility manager. Their positions are at
equal levels in the MDRS organizational structure.
contends that the questions by the interview panel
intentionally were developed in Byrd's favor, in that
they focused on facility management experience, despite the
fact that facility management was not an important function
of the position being filled. According to Calvin, the duties
he was performing as a district manager at the time of the
interview were more in line with the duties of the position
for which he was applying, than were the duties of a facility
manager. Calvin also contends that Tarea Stout, a member of
the interview panel, and supposedly, the person who had
created the interview questions, asked one of the other
interviewers on the panel, an African American, to lower the
score she had given to Calvin. That other interviewer refused
to do so.
February 7, 2013, aggrieved over the selection process,
Calvin filed his charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”). After
investigation, the EEOC found reasonable cause to believe
defendant had not selected Calvin because of his race. The
EEOC, thereafter, on October 29, 2015, issued Calvin a right
to sue letter.
STANDARD FOR SUMMARY JUDGMENT
judgment is appropriate if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Copeland v. Nunan, 250 F.3d 743
(5th Cir. 2001); see also Wyatt v. Hunt
Plywood Company, Inc., 297 F.3d 405, 408-09
(2002). When assessing whether a dispute to any
material fact exists, all of the evidence in the record is
considered, but the court refrains from making credibility
determinations or weighing the evidence. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120
S.Ct. 2097, 147 L.Ed.2d 105 (2000); instead, we “draw
all reasonable inferences in favor of the nonmoving
party.” Id.; Wyatt, 297 F.3d at 409.
All evidence and the reasonable inferences to be drawn
therefrom must be viewed in the light most favorable to the
party opposing the motion. United States v. Diebold,
Inc. 369 U.S. 654, 655 (1962).
party, however, cannot defeat summary judgment with
conclusory allegations, unsubstantiated assertions, or
“only a scintilla of evidence.” TIG Ins. Co.
v. Sedgwick James of Wash. 276 F.3d 754, 759 (5th
Cir. 2002); S.E.C. v. Recile, 10 F.3d 1093, 1097
(5th Cir. 1997); Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir.1994). Summary judgment is
appropriate if a reasonable jury could not return a verdict
for the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d
case of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-05 (1973), establishes a three-step, circumstantial