United States District Court, S.D. Mississippi, Northern Division
ORDER AND OPINION
BRAMLETTE, UNITED STATES DISTRICT JUDGE
Mississippi Board of Nursing (the “Board”) and
Dr. Lynn Langley move the Court for summary judgment
dismissing the employment-discrimination claims of Plaintiff
Deborah Bilbrew, the Board's former Director of Licensure
and Practice. For the reasons that follow, the motion is
at issue is the reason the Board fired Bilbrew after just
nine months on the job. Bilbrew attributes her firing to
racial discrimination; the Board points to her poor
October 2015, the Board hired Bilbrew to fill its
“Director of Licensure and Practice” position.
Her salary was $60, 200 per year. Before she accepted the
job, Bilbrew discussed her salary with Dr. Langley, the
Board's Executive Director at the time. Bilbrew said
salary was not important: She was “retired and glad to
be employed, and that was it.”
after she took the job, Bilbrew learned that her white
predecessor, Kathy Elliott, earned about $15, 000 more per
year than she did. Elliott was paid more than Bilbrew because
Elliott negotiated with the Board for a higher starting
salary; Bilbrew did not. The Mississippi State Personnel
Board also granted the Board permission to pay Elliott more
than the $60, 200 “start step” salary for the
position. The Board did not request permission to pay Bilbrew
more than the “start step” for the position
because Bilbrew did not ask for a higher salary when she
interviewed for the job. Bilbrew eventually asked Dr. Langley
why Elliott drew a higher salary, but did not receive an
answer that satisfied her.
sometimes ate lunch with Hoshina Jones. Jones worked for the
Board as an “investigator, ” and filed an EEOC
complaint against the Board in March 2016, alleging sex
discrimination. Bilbrew says that Dr. Langley called Jones a
“troublemaker” and told Bilbrew to “be
careful of who you're associating with.”
April 2016, about six months after Bilbrew was hired,
Bilbrew's subordinates began complaining to Dr. Langley
about Bilbrew's “management style.” Three
employees complained that Bilbrew wrongly denied leave
requests or improperly shared their personal information.
None of the complaints were written down.
June 2016 email, Dr. Langley told Bilbrew that employees had
complained about her. In particular, the employees
“express[ed] concern over the lack of flexibility with
their time and duties.” Bilbrew replied that she had
never denied leave to anyone and intended only to avoid
“discrimination based on favoritism or race.”
than one month later, the Board fired Bilbrew and reassigned
two employees, Phyllis Johnson and Emily Spruill, to perform
her duties. Johnson and Spruill shared Bilbrew's former
duties until August 2017, when the Board hired a white woman,
Tina Highfill, as “Director of Advanced Practice and
Licensure.” The parties dispute whether Highfill
sued. She alleges the Board fired her because she is
African-American and retaliated against her because she
sometimes ate lunch with Jones. The Board and Dr. Langley move
for summary judgment on all of Bilbrew's claims.
VII of the Civil Rights Act of 1964 prohibits racial
discrimination in employment. 42 U.S.C. § 2000e-2(a). It
outlaws both intentional discrimination and unintentional
discrimination that disproportionately adversely affects
minorities. Ricci v. DeStefano, 557 U.S. 557, 577
(2009). The former form of discrimination is called disparate
treatment, the latter, disparate effect. Id. at 577.
This is a disparate treatment case.
relies on circumstantial evidence to prove discrimination, so
the Court uses the McDonnell Douglass burden-shifting
analysis. Alkhawaldeh v. Dow Chem. Co., 851 F.3d
422, 426 (5th Cir. 2017). That analysis places the initial
burden on Bilbrew to prove four things: (1) she is a member
of a protected group; (2) she was qualified for the position
at issue; (3) she was discharged or suffered some adverse
employment action; and (4) she was replaced by someone
outside her protected group or treated less favorably than
other similarly situated employees. Morris v. Town of
Independence, 827 F.3d 396, 400 (5th Cir. 2016).
parties agree that Bilbrew has met the first three
requirements of her prima facie case; solely at issue is the
fourth: Whether Bilbrew was replaced by someone outside her
contend Bilbrew cannot show that she was replaced because the
Board reassigned her duties to two existing employees,
Phyllis Johnson (African-American) and Emily Spruill (white).
Bilbrew replies that she was replaced by Tina Highfill, a
white woman the Board hired over a year after it fired
area, the Fifth Circuit has produced few precedential
opinions. But three unpublished opinions explore Title VII
reassignment. See Griffin v. Kennard Ind. Sch.
Dist., 567 Fed.Appx. 293 (5th Cir. May 13, 2014) (per
curiam); Rexses v. Goodyear Tire & Rubber Co.,
401 Fed.Appx. 866 (5th Cir. Nov. 10, 2010) (per curiam);
Dulin v. Dover Elevator Co., 139 F.3d 898, 1998 WL
127729 (5th Cir. Mar. 2, 1998).
Dulin, a construction superintendent sued his employer for
age discrimination. 1998 WL 127729, at *1. The district court
granted summary judgment to the employer, ruling that the
superintendent could not show that he was replaced by someone
outside his protected class. Id. at *2. The Fifth
Circuit affirmed. Id. at *3. In so doing, it
reasoned that the superintendent had not been replaced
because his position was eliminated and his duties
“were taken up by two existing employees.”
Id. at *2.
like Dulin, is an age-discrimination case. 401 Fed.Appx. 866.
In Rexses, a Fifth Circuit panel ruled that a former Goodyear
employee was not “replaced” when Goodyear
eliminated his position and assigned his former duties to two
existing employees. Id. at 868.
Griffin court explained reassignment in broader terms.
According to it, an employee is reassigned -- not replaced --
“when his former duties are distributed among other
co-workers.” Id. at 294-95. Position
elimination is not mentioned. Id. Thus, Griffin
suggests that an employee is not replaced when his duties are
reassigned to existing employees, even though his former
position has not been eliminated.
Griffin here, Bilbrew cannot show that she was replaced by
someone outside her protected class. Defendants have come
forward with admissible evidence showing that Bilbrew's
duties were reassigned to the Board's existing employees,
Phyllis Johnson, an African-American woman, and Emily
Spruill, a white woman. Bilbrew's rejoinder, that she was
“ultimately” replaced by Tina Highfill, fails to
VII plaintiff fails to create a material fact issue on the
replacement element of her prima facie case when she points
only to an “ultimate” replacement outside her
protected class. See Kirschling v. Atlantic City Bd. Of
Educ., 10 F.Supp.3d 587, 597 (D. N.J. 2014). In
Kirschling, for example, the district court determined that
the plaintiff failed to create a material fact issue
regarding the replacement element of his claim when he was
initially replaced by someone of his race. Id. at
597. That the plaintiff's “ultimate”
replacement, hired more than one year after the plaintiff was
fired, was of another race failed to create an inference of
discrimination. Id. So too here. The Board hired
Highfill more than one year after it fired Bilbrew. Given the
passage of time between its firing and hiring decisions, no
inference of discrimination can be drawn.
fails to create a material fact issue regarding her
replacement by someone outside her protected class, so
Defendants are entitled to summary judgment on her
racial-discrimination claim. Even if Bilbrew could show the
replacement element of her prima facie racial-discrimination
case, the Court would grant summary judgment against her
because the Board offers legitimate, non-discriminatory
reasons for firing Bilbrew.
Legitimate, Non-Discriminatory Reasons
Bilbrew proved her prima facie case of racial discrimination,
the burden would shift to the Board to articulate a
legitimate, non-discriminatory reason for firing her.
Outley v. Luke & Associates, Inc.,840 F.3d 212,
218 (5th Cir. 2016). ...