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Bilbrew v. Mississippi Board of Nursing

United States District Court, S.D. Mississippi, Northern Division

July 12, 2018




         The 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 GRANTED.

         I. Background

         Primarily 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 performance.

         In 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.”

         A month 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.

         Bilbrew 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.”

         In 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.

         In a 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.”

         Less 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 replaced Bilbrew.

         Bilbrew sued. She alleges the Board fired her because she is African-American and retaliated against her because she sometimes ate lunch with Jones.[1] The Board and Dr. Langley move for summary judgment on all of Bilbrew's claims.

         II. Racial Discrimination

         Title 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.

         Bilbrew 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).

         The 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 protected group.

         A. Replacement

         Defendants 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 Bilbrew.

         In this area, the Fifth Circuit has produced few precedential opinions. But three unpublished opinions explore Title VII reassignment.[2] 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).[3]

         In 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.

         Rexses, 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.

         The 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.[4]

         Applying 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 persuade.

         A Title 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.

         Bilbrew 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.

         B. Legitimate, Non-Discriminatory Reasons

         Had 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). ...

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