OLA C. KIRK APPELLANT
MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY APPELLEE
OF JUDGMENT: 10/08/2015
COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON. TOMIE T.
ATTORNEY FOR APPELLANT: JOHN M. MOONEY JR.
ATTORNEY FOR APPELLEE: JOHN G. (TRAE) SIMS III.
In June 2013, the Mississippi Department of Public Safety
(MDPS) announced that there was an opening for the position
of lieutenant in the driver services division of the
Mississippi Highway Safety Patrol (MHSP). MDPS interviewed
six qualified applicants for the position and selected Master
Sergeant Anthony Cunningham-a 51-year-old African-American
male with 26-plus years of service at MDPS-for the promotion.
Master Sergeant Ola Kirk-a 57-year-old African-American
female with 25.5 years of service at MDPS-was identified as
the first "alternate choice" for the promotion, but
she was not promoted.
Kirk filed a grievance, alleging that she was denied the
promotion because of her sex. MDPS denied the grievance, and
Kirk appealed to the Mississippi Employee Appeals Board
(EAB). Following a two-day hearing before an EAB hearing
officer, the hearing officer entered an order denying
Kirk's claim. The hearing officer found that MDPS had
articulated a legitimate, nondiscriminatory reason for its
decision to promote Cunningham rather than Kirk. The hearing
officer further found that Kirk failed to meet her burden of
proof that MDPS's stated reason was a pretext for
intentional discrimination. The en banc EAB affirmed the
hearing officer's findings and decision, and the Hinds
County Circuit Court subsequently affirmed the decision of
On appeal to this Court, Kirk argues that MDPS failed to
articulate a legitimate, nondiscriminatory reason for its
decision. She also argues that she was clearly more qualified
than Cunningham, that MDPS's stated reason for promoting
Cunningham was a pretext for intentional discrimination, and
that the EAB's decision is not supported by substantial
evidence. As to the former issue, we agree with the EAB that
MDPS's stated reason for its decision-that Cunningham
scored higher than Kirk on an interview designed to test the
candidates' knowledge of subjects relevant to the open
position-is a legitimate and nondiscriminatory reason for an
employment decision. On the latter issue, the EAB is the
trier of fact and the judge of witnesses' credibility,
and we find that its decision denying Kirk's claim is
supported by substantial evidence. Accordingly, we affirm.
AND PROCEDURAL HISTORY
In May 2013, Lieutenant Anthony Wright retired from the
driver services division of MDPS. On June 7, 2013, MDPS
distributed a "Position Open Notice" seeking
applications to fill Wright's position. The notice stated
that "[a]ny sworn officer within the [MHSP] meeting the
qualifications [could] apply." The primary minimum
qualifications for the position were seven years of service
as a sworn officer with MDPS, including at least two years
"in line or functional supervision as a master
sergeant." The notice stated that there would be oral
interviews for qualified applicants, and it identified
potential sources of interview questions, including laws and
policies related to the driver services division.
Six applicants were deemed qualified and invited to oral
interviews, which were held on July 17, 2013. The candidates
included Kirk, Cunningham, and four other men. Kirk and
Cunningham are both African-American. Kirk was fifty-seven
years old at the time of the interviews, whereas Cunningham
was fifty-one. Both Kirk and Cunningham have four-year
college degrees, and both have been employed by MDPS since
1987. Both have served in supervisory roles and served as
acting lieutenant in the driver services division subsequent
to Wright's retirement. Kirk was promoted to master
sergeant in 2002, while Cunningham was promoted to that rank
on April 1, 2010. Cunningham had received five work-related
commendations, while Kirk had received one. The other four
candidates had between seventeen and twenty-six years of
service at MDPS and between six and thirteen years of service
at the rank of master sergeant.
The director of the driver services division, Major
Christopher Gillard,  chaired the interview panel. Captain
Printiss Parker and Lieutenant Jay Kelly, who also serve in
the driver services division, were also on the panel. The
panel drafted a list of six questions to ask the applicants
during their oral interviews. All six questions related to
the operations of the driver services division or laws,
policies, or procedures applicable to the division. The
questions were not distributed to any of the candidates prior
to the interviews.
At the beginning of each candidate's interview, Gillard
gave a general overview of how the interview would proceed,
and the panel members then took turns asking the six
questions. The panel members scored each candidate's
answer to each question on a scale of 1 to 5. After each
candidate left the room, the panel would compare scores and
discuss the reasons for any differences of more than one
point on a particular question. The candidate's total
score was then tallied based on each panel member's
After the interviews, Gillard provided Colonel Donnell Berry,
Director of the MHSP, with a list of the top three applicants
for the position. Gillard identified Cunningham as his
"first choice" for promotion and Kirk as his first
"alternate choice." Gillard ranked the candidates
based solely on their interview scores. Cunningham received
the highest score (73 out of 90 possible points), while Kirk
received the second-highest score (64). Berry accepted
Gillard's recommendation and promoted Cunningham.
On July 24, 2013, Kirk filed a grievance with MDPS alleging
that she had been denied the promotion based on her race,
age, or gender. After MDPS denied her claim, Kirk appealed to
the EAB. A hearing was held before an EAB hearing officer on
March 7 and August 21, 2014. Kirk, Cunningham, Gillard,
Parker, Kelly, and Berry all testified. During the hearing,
Kirk's attorney stated that she was only pursuing her
claim of gender discrimination, as Cunningham was also
African-American and at least forty years of age. MDPS
maintained that Cunningham was promoted because he scored
higher on his interview than Kirk, not because of
At the hearing, Gillard testified that the promotion was
governed by MDPS General Order No. 22/02, which governs
"appointments" to "specialized
positions." The Order states that its purpose "is
to provide the Director of [MHSP] and the Commissioner of
Public Safety necessary . . . flexibility in filling staff,
technical, and special duty positions taking into account a
candidate's skill, knowledge, and professional
experience." The Order provides that candidates for such
positions must hold the rank of master sergeant or higher and
be eligible for promotion to lieutenant. The Order further
provides that, after reviewing candidates'
qualifications, the Director of MHSP, with the approval of
the Commissioner, will make appointments to fill specialized
positions. Finally, the Order provides that, notwithstanding
any other provisions of the Order or General Order No. 22/01,
Commissioner, after consulting with the Director of MHSP,
"shall have the ability to promote in rank sworn
personnel possessing skill, knowledge, and professional
experience to speciality positions."
Gillard testified that applicants who satisfied the minimum
qualifications set forth in the open-position notice were
invited to interview. He also testified that his
recommendation to Colonel Berry was based solely on the
candidates' interview scores because all the candidates
interviewed "had already met the minimum
qualifications." Gillard testified that the panel ranked
Cunningham first and Kirk second based on their interviews
and not because of gender, age, or race. MDPS stipulated, and
all of its witnesses testified, that Kirk is an excellent
employee and was qualified for the position. MDPS simply
defended its decision to promote Cunningham based on his
superior interview scores.
The interview questions and the interviewers' scoring
sheets were introduced into evidence. Cunningham received a
higher overall score than Kirk primarily because the
interviewers scored his answers higher on question 2, which
concerned eligibility for a learner's permit, and
question 4, which concerned permanent disability cards. The
comments on the interviewers' scoring sheets are limited.
The interviewers noted that Kirk "did not answer
questions completely" or "fully." The
interviewers noted Cunningham's "knowledge and
experience of driver services."
Gillard and Parker both testified that Kirk received a low
score on question 2 because she started to answer correctly
but then changed her answer and answered incorrectly. Gillard
and Parker both testified that Kirk received a low score on
question 4 because she stated that she did not know the
answer. Kelly testified on the second day of the EAB hearing,
thirteen months after the interviews. He could not recall the
specifics of the candidates' answers and could only
testify generally as why he would have scored an answer lower
or higher. Gillard testified that, immediately after the
interviews, he "personally" "shredded"
any additional notes taken by the interviewers. He testified
that he did so because the questions might be used again, and
he did not want the answers to be disclosed. Gillard, Parker,
and Kelly testified that the interview process for this
promotion was consistent with MDPS's usual practices. All
denied that any candidate's gender, race, or age
influenced the interview process or their scoring.
Kirk testified that she believed that she was the most
qualified candidate, that she doubted that Cunningham could
have scored higher than her on a fair test, and that she
believed she should have been promoted rather than him.
However, she acknowledged that she did not hear
Cunningham's answers to the questions. She also
acknowledged that the test questions were fair and "all
. . . came straight from the policy and procedure book."
She also admitted that she was concerned about whether she
answered question 4 correctly. Kirk also testified that there
should have been a female on the interview panel, although
she acknowledged that there were no other females in the
driver services division. Kirk testified that she believed
she had "been discriminated against by [MDPS], "
but she was unwilling to say that any of the interviewers or
Colonel Berry were "sexist." When pressed, she
speculated that Parker had discriminated against her, but
only because he scored her lower than the other interviewers.
Although all three interviewers scored Cunningham higher than
Kirk, Kirk believed that Parker "was not fair about
Following the hearing, the EAB hearing officer permitted the
parties to submit briefs and then entered an order with
detailed findings of fact and conclusions of law. He found
that Kirk had established a prima facie case of
discrimination because she was a member of a protected class
(a female), she applied for and was qualified for the
promotion, she did not receive the promotion, and a person
outside of the protected class (Cunningham, a male) received
the promotion. However, the hearing officer also found that
MDPS articulated a legitimate, nondiscriminatory reason for
its decision to promote Cunningham (his higher interview
scores). Finally, the hearing officer found that Kirk failed
to satisfy her burden of proof and persuasion that she was
denied the promotion because of her gender and that
MDPS's stated reason for promoting Cunningham was a
pretext. Accordingly, the hearing officer dismissed
Kirk's claim with prejudice.
Kirk appealed the hearing officer's decision, but the en
banc EAB affirmed the hearing officer's findings and
conclusions. Kirk then appealed to circuit court, arguing
that the EAB's decision was arbitrary and capricious, was
not supported by substantial evidence, and violated her
constitutional and statutory rights. However, the circuit
court affirmed the EAB's decision. Kirk again filed a
timely notice of appeal. On appeal, Kirk identifies six
issues, all of which relate to her two basic arguments that
MDPS failed to articulate a legitimate, nondiscriminatory
reason for its decision to promote Cunningham and that she
met her burden of proof and persuasion that MDPS's stated
reason for its decision was a pretext for discrimination. We
address Kirk's arguments below.
Title VII of the Civil Rights Act of 1964 prohibits an
employer from discriminating against an employee because of
the employee's gender. 42 U.S.C. § 2000e-2(a)(1).
"The Title VII inquiry is whether the defendant
intentionally discriminated against the plaintiff."
Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th
Cir. 2007) (quoting Roberson v. Alltel Info. Servs.,
373 F.3d 647, 651 (5th Cir. 2004)). Mississippi law also
prohibits intentional discrimination against a state service
employee because of the employee's gender. Miss. Code
Ann. § 25-9-149 (Rev. 2010); see Miss. Emp't
Sec. Comm'n v. Collins, 629 So.2d 576, 581 (Miss.
Kirk's claim of gender discrimination is subject to
"a precise scheme, or allocation, of the burdens of
proof (both production and persuasion)." Cash
Distrib. Co. v. Neely, 947 So.2d 286, 292 (¶21)
(Miss. 2007). This analysis, often referred to as the
"McDonnell Douglas burden-shifting framework,
" proceeds in three steps. See id. at 292-93
(¶¶22-23) (discussing McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973); Tex. Dept. of Cmty.
Affairs v. Burdine, 450 U.S. 248 (1981)); see
Alvarado, 492 F.3d at 611 (recognizing that the same
framework applies to gender-discrimination claims under Title
VII when there is "no direct evidence of
discrimination"); Miss. Dep't of Human Servs. v.
Baum, 730 So.2d 58, 63 (¶¶18-19) (Miss. 1998)
(applying the same framework to a state employee's
grievance alleging discrimination); Reid v. Miss. State
Hosp./Miss. Dep't of Mental Health, 53 So.3d 823,
824-25 (¶8) (Miss. Ct. App. 2011) (same). First, the
employee must establish a prima facie case of discrimination.
This required Kirk to show that she was a member of a
protected class, that she was qualified for the promotion at
issue, that she was not promoted, and that a person outside
her protected class was promoted. See Alvardo, 492
F.3d at 611. MDPS does not dispute that Kirk established a
prima facie case, which created an initial
"presumption" of "impermissible
discrimination." Neely, 947 So.2d at 297
In the second step of the McDonnell Douglas
framework, the employer bears "the burden of producing
an explanation to rebut the prima facie case-i.e., the burden
of producing evidence that the adverse employment actions
were taken for a legitimate, nondiscriminatory reason."
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
506 (1993) (quotation marks omitted). The employer's
burden at this stage is a "burden of
production" only and "can involve no
credibility assessment." Id. at 507, 509. This
burden of production "necessarily precedes the
credibility-assessment stage." Id. at 509. The
defendant's burden at the second step is only "to
introduce evidence which, taken as true, would
permit the conclusion that there was a
nondiscriminatory reason for the adverse action."
Id. ¶20. The third step of the McDonnell
Douglas framework is the "credibility-assessment
stage." Id. If the defendant carries its
step-two burden of production, "the plaintiff must then
have an opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for
discrimination." Neely, 947 So.2d at 293
(¶23) (quoting Burdine, 450 U.S. at 253).
"The ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff."
The "trier of fact" in this case was the EAB. On
appeal from a decision of the EAB, a "reviewing court
must affirm the [EAB] if [its] decision was (1) supported by
substantial evidence; (2) not arbitrary or capricious; (3)
within the scope or power of the agency; and (4) not a
violation of the aggrieved party's constitutional or
statutory rights." Ray v. MDPS, 172 So.3d 182,
187 (¶15) (Miss. 2015). "[The Supreme] Court has
held that substantial evidence means evidence which . . .
affords a substantial basis of fact from which the fact in
issue can be reasonably inferred." Id. at 187
(¶16) (quotation marks omitted). "Substantial
evidence exists so long as there is evidence that a
reasonable mind might accept as sufficient to support a
conclusion." Id. "The reviewing court is
not authorized to substitute its judgment for that of the
[EAB] where there is substantial (that is, more than a
scintilla of) evidence to support the finding."
Id. (quoting Miss. Pub. Serv. Comm'n v.
Merchants Truck Line Inc., 598 So.2d 778, 782 (Miss.
1992)) (brackets omitted). The reviewing court also must bear
in mind that "[t]he EAB is the trier of fact as well as
the judge of the witnesses' credibility."
Id. at 188 (¶20) (quotation marks omitted);
accord, e.g., Miss. Dep't of Wildlife,
Fisheries & Parks v. Bradshaw, 196 So.3d 1075,
1082-83 (¶19) (Miss. Ct. App. 2016).
Below, we first address whether MDPS met its step-two burden
of production, i.e., its burden to articulate a legitimate,
nondiscriminatory reason for its decision to promote
Cunningham rather than Kirk. We then consider whether there
is substantial evidence to support the EAB's finding, as
the trier of fact, that Kirk failed to meet her ultimate
burden of proving that MDPS's stated reason was a pretext
and that MDPS intentionally discriminated against her and
refused to promote her because of her gender.
MDPS articulated a legitimate, nondiscriminatory
reason for its decision to promote
Cunningham rather than Kirk.
MDPS's stated reason for promoting Cunningham rather than
Kirk is that he scored higher on his interview, which tested
the candidates' knowledge of subjects related to the open
position of lieutenant in the driver services division. In
support, MDPS introduced evidence of the interview questions
that candidates were asked and interviewers' scoring
sheets. As discussed above, members of the interview panel
also testified as to why Kirk received a lower score on two
questions, namely, that she answered one question incorrectly
after changing her answer, and she did not know the answer to
another question. Kirk acknowledged that the interview
questions were fair and tested knowledge relevant to the open
position, and she also admitted that she was concerned about
one of her answers for which she received a low score. As
noted above, Kirk received the second-highest score of the
six candidates that were interviewed; however, Cunningham
received the highest score, and MDPS maintains that he was
promoted for that reason.
It should be evident that the relative quality of
candidates' answers to interview questions designed to
test their knowledge relevant to the open position is a
legitimate, nondiscriminatory reason for an employer's
decision. Caselaw recognizes this common- sense proposition.
See, e.g., Harris v. Mayor & City Council of
Baltimore, 429 F.App'x 195, 203-04 (4th Cir. 2011);
Sutherland v. Mich. Dep't of Treasury, 344 F.3d
603, 616 (6th Cir. 2003). Therefore, MDPS met its step-two
"burden of production." Hicks,
509 U.S. at 507.
To reiterate, this step of the McDonnell Douglas
framework "can involve no credibility assessment."
Id. at 509. The defendant's only burden is
"to introduce evidence which, taken as true,
would permit the conclusion that there was a
nondiscriminatory reason for the adverse action."
Id. If the trier of fact believed that MDPS promoted
Cunningham because he provided the best answers to questions
designed to test the candidates' knowledge of relevant
subjects, then obviously that would ...