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Kirk v. Mississippi Department of Public Safety

Court of Appeals of Mississippi

May 30, 2017

OLA C. KIRK APPELLANT
v.
MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY APPELLEE

          DATE OF JUDGMENT: 10/08/2015

         HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON. TOMIE T. GREEN.

          ATTORNEY FOR APPELLANT: JOHN M. MOONEY JR.

          ATTORNEY FOR APPELLEE: JOHN G. (TRAE) SIMS III.

         EN BANC.

          WILSON, J.

         ¶1. 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.

         ¶2. 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 the EAB.

         ¶3. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶4. 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.

         ¶5. 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.

         ¶6. The director of the driver services division, Major Christopher Gillard, [1] 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.

         ¶7. 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 scores.

         ¶8. 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.

         ¶9. 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 discrimination.

         ¶10. 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, [2] the 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."

         ¶11. 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.

         ¶12. 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."

         ¶13. 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.

         ¶14. 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 [her] grading."

         ¶15. 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.

         ¶16. 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.

         DISCUSSION

         ¶17. 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. 1993).

         ¶18. 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 (¶37).

         ¶19. 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." Id.

         ¶21. 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).

         ¶22. 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.

         I. MDPS articulated a legitimate, nondiscriminatory reason for its decision to promote Cunningham rather than Kirk.

         ¶23. 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.

         ¶24. 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.

         ¶25. 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 ...


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