Harstad v. City of Columbus, Mississippi
Filing
47
MEMORANDUM OPINION AND ORDER denying 34 Motion for Summary Judgment. Signed by District Judge Debra M. Brown on 9/30/2014. (kdw)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
GREGORY M. HARSTAD
PLAINTIFF
V.
NO. 1:13-CV-004-DMB-DAS
CITY OF COLUMBUS, MISSISSIPPI
DEFENDANT
MEMORANDUM OPINION AND ORDER
Plaintiff Gregory M. Harstad filed this race discrimination lawsuit against his employer,
Defendant City of Columbus, Mississippi, for not promoting him to Chief of Police and hiring
instead an African-American officer for the position. The City has filed a motion for summary
judgment on grounds that Plaintiff is unable to prove his race discrimination claim because he
was not qualified for the Chief of Police position, and Plaintiff cannot show he was removed
from the applicant pool because of his race. Plaintiff argues summary judgment should be
denied because he can make a prima facie showing of race discrimination.
Upon due
consideration of the motions, case record, and applicable law, the Court finds that the City’s
motion should be denied.
I
Plaintiff, a Caucasian man, began working as a patrolman for the police department in
Columbus, Mississippi, in August 2009.
Before joining the Columbus Police Department,
Plaintiff served as a pilot and radio communications analyst for over 25 years in the United
States Air Force and as a trooper for 5 years in the North Dakota Highway Patrol. Pl.’s Dep.
[34-4] at 3, 6-7; Doc. [34-5] at 12.
Plaintiff had been working in the Columbus Police
Department for approximately two years when the City of Columbus posted a notice of vacancy
for Chief of Police. The relevant portion of the notice stated:
Graduation from an accredited four-year college or university is required. In
addition, candidates should have ten years of pertinent experience, including at
least five years of supervisory experience as a division commander, assistant
police chief or police chief.
Doc. [40-4]. The notice was later amended to change graduation from a four-year college or
university from “required” to “preferred” and to remove the requirement for applicants to have
five years of supervisory experience. Doc. [40-6]; Doc. [34-5] at 2-3. Plaintiff applied for the
position on or about August 16, 2011.1 Pl.’s Dep. [34-4] at 11, 28-29; Doc. [34-5] at 11.
The City received approximately 82 applications for the position, and 25 applicants were
referred to a selection committee for further screening. Armstrong Dep. [34-2] at 4; Mitchell
Dep. [34-3] at 2.
The selection committee, which was comprised of 21 members of the
community from diverse backgrounds, performed a second screening of the applications.
Karriem Dep. [34-6] at 2; Smith Dep. [34-1] at 7. Three of the 25 applicants who passed the
initial screening were interviewed. The City ultimately hired Selvain McQueen, an AfricanAmerican police officer who had been working with the Columbus Police Department over 20
years and who had been serving as the interim police chief since July 2011.
When Plaintiff learned he did not pass the initial screening, he met with Patricia Mitchell,
the Human Resources Director for the City, to find out why he was no longer being considered.
Pl.’s Dep. [34-4] at 14-15. Mitchell told Plaintiff that his military background did not count as
pertinent experience and, thus, he failed to meet the requirements for police chief. Id. at 14. In a
letter dated October 25, 2011, Plaintiff requested that his application be reconsidered and that he
be allowed to interview for the position. Doc. [34-5] at 5-7. Plaintiff explained in detail why his
military experience should be considered pertinent experience for purposes of the position. Id.
1
The date the notice was amended appears to be unclear from the record, so it is also unclear whether Plaintiff
applied for the position before or after the notice was amended.
2
Plaintiff claims he hand-delivered the letter to Mitchell and that she told him he would not be
reconsidered or interviewed. Pl.’s Dep. [34-4] at 16-17.
On November 18, 2011, Plaintiff filed a grievance with the Columbus Police Department
stating that he had been discriminated against to the extent his application was not given fair and
equal consideration. Doc. [34-5] at 8. Mitchell responded to Plaintiff’s grievance in a letter
dated November 29, 2011, by stating that “standard procedures were adhered to during the
selection process of applicants for the position of Police Chief.” Doc. [34-5] at 10. Mitchell also
advised Plaintiff of his right to request the Mayor of Columbus and the City’s Chief Operations
Officer to review his grievance. Id.
Plaintiff requested further review of his grievance. He claims the Chief Operations
Officer and Assistant Mayor told him he would have gotten an interview if he had detailed his
military experience in his resume, but they were unwilling to reconsider him at that point. Pl.’s
Dep. [34-4] at 17-19. Before a hiring decision was made, Plaintiff had a formal meeting with the
Columbus City Council to explain his reasons for filing the grievance and why he should have
made it past the initial screening. Id. at 19-20. The City Council unanimously voted against
Plaintiff being reconsidered for police chief. Karriem Dep. [34-6] at 4.
On January 7, 2012, Plaintiff filed a charge of discrimination based on race with the
Equal Employment Opportunity Commission (“EEOC”). Compl. [1] at Exh. A. In a letter dated
January 12, 2012, Plaintiff was notified that he did not get the position. Doc. [34-5] at 4. On
October 11, 2012, the EEOC issued Plaintiff a notice of right to sue letter. Plaintiff filed his
complaint in this Court on January 7, 2013, alleging that the City discriminated against him
based on race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.2
2
Because Plaintiff’s claims arise under Title VII, this Court has subject matter jurisdiction over the complaint based
on a federal question. See 28 U.S.C. § 1331; 28 U.S.C. § 1343; 42 U.S.C. § 2000e-5(f)(3).
3
On December 23, 2013, the City filed the instant motion for summary judgment, arguing
that Plaintiff cannot make a prima facie showing of employment discrimination. Specifically,
the City asserts that Plaintiff lacked the supervisory experience required to qualify for Chief of
Police and that race was not a factor in its hiring decision. Plaintiff argues in response that he
was clearly better qualified than McQueen and that the City amended the job requirements for
Chief of Police so that African-Americans would qualify for the position. The motion has been
fully briefed and is ripe for decision.
II
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is
appropriate when the evidence shows there is no genuine issue of any material fact and the
moving party is entitled to judgment as a matter of law. Summary judgment should be entered,
“after adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
When determining whether summary judgment is appropriate in a case, a district court must
review all well pleaded facts in the light most favorable to the nonmoving party. Pratt v. City of
Houston, Tex., 247 F.3d 601, 606 (5th Cir. 2001).
A
Under the McDonnell Douglas burden-shifting analysis, “a plaintiff challenging a failure
to promote must first establish a prima facie case, demonstrating that (1) he was not promoted,
(2) he was qualified for the position he sought, (3) he fell within a protected class at the time of
the failure to promote, and (4) the defendant either gave the promotion to someone outside of
that protected class or otherwise failed to promote the plaintiff because of his race.” Autry v.
4
Fort Bend Indep. Sch. Dist., 704 F.3d 344, 346-47 (5th Cir. 2013) (citing Price v. Fed. Express
Corp., 283 F.3d 715, 720 (5th Cir 2002)). If the plaintiff demonstrates these four factors, he
raises an inference of discrimination, and the burden shifts to the defendant-employer to offer a
legitimate, nondiscriminatory reason for its failure to promote. Autry, 704 F.3d at 347 (citing
Price, 283 F.3d at 720). Once the defendant proffers a nondiscriminatory reason for its action,
the plaintiff must then “prove either that the defendant’s articulated reason is merely a pretext for
race discrimination (the pretext alternative), or that the defendant’s reason, while true, is only
one of the reasons for its decision, and another ‘motivating factor’ is the plaintiff’s protected
characteristic (the mixed-motives alternative).”
Autry, 704 F.3d at 347 (citing Vaughn v.
Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011)).
It is undisputed that Plaintiff was a member of a protected class;3 he was not promoted to
police chief; and the City promoted someone outside of Plaintiff’s protected class. At issue is
whether Plaintiff was qualified for the position.
The City argues that Plaintiff lacked the
requisite level of law enforcement experience to qualify for police chief because he never
progressed higher in rank than a patrol officer and did not have any supervisory experience in a
police department. Plaintiff argues that his military experience satisfies the requirement for
supervisory experience in the vacancy announcement. He further contends that the issue of
whether he had “ten years of pertinent experience” should be resolved by a jury. Pl.’s Mem. [41]
at 9.
3
Title VII is “not limited to discrimination against members of any particular race.” McDonald v. Santa Fe Trail
Trans. Co., 427 U.S. 273, 278-79 (1976) (holding that Title VII protects whites discriminated against in favor of
racial minorities). “Similarly the EEOC … has consistently interpreted Title VII to proscribe racial discrimination
in private employment against whites on the same terms as racial discrimination against nonwhites ….” Id. at 279.
Moreover, “Congress intended to eliminate all practices which operate to disadvantage the employment
opportunities of any group protected by Title VII, including Caucasians.” Johnson v. Transp. Agency, Santa Clara
Cnty., Cal., 480 U.S. 616, 643 (1987) (citations and quotation marks omitted).
5
“An employer may establish job requirements, and rely on them in arguing that a prima
facie case is not established because the employee is not ‘qualified.’ However, only objective
requirements may be used in making this argument.” Johnson v. Louisiana, 351 F.3d 616, 622
(5th Cir. 2003) (citing Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 681 (5th Cir. 2001)).
That is, an employer cannot defeat summary judgment at the prima facie stage by claiming the
plaintiff failed to meet entirely subjective hiring criteria. Medina, 238 F.3d at 681.
The police chief requirements at issue have objective and subjective elements. The
vacancy stated, in relevant part, that applicants “should have ten years of pertinent experience,
including supervisory experience as a division commander, assistant police chief or police
chief.” Doc. [40-6]. While the number of years required is objective, it appears that the City
may have been able to make a quasi-subjective determination on whether an applicant’s
experience is “pertinent.” See Medina, 238 F.3d at 681-82 (finding that “substantial sales
experience” requirement is subjective hiring criteria). The vacancy listed examples of “pertinent
experience” to aid in the screening process, “including … supervisory experience as a division
commander, assistant police chief or police chief,” Doc. [40-6]; but did not specify that these
examples were the only way to satisfy the “pertinent experience” requirement.
Under Fifth Circuit law, an employer may not “utilize wholly subjective standards by
which to judge its employees’ qualifications and then plead lack of qualification when its
promotion process … is challenged as discriminatory.” Medina, 238 F.3d at 681 (quoting
Crawford v. W. Elec. Co., 614 F.2d 1300, 1315 (5th Cir. 1980)). In the instant case, the City
does not rely on wholly subjective standards to argue that Plaintiff was unqualified for the police
chief position. The record shows that Plaintiff did not have any supervisory experience as a
police officer for the North Dakota Highway Patrol or Columbus Police Department. He had not
6
worked in law enforcement for ten years nor had he served as a division commander, police
chief, or assistant chief.
Rather, at the time of the vacancy, Plaintiff had five years law
enforcement experience as a trooper, pilot, and commercial motor carrier inspector for the North
Dakota Highway Patrol, and two years law enforcement experience as a patrol officer and
driving instructor for the Columbus Police Department. Doc. [40-2] at 1-2. The only other law
enforcement experience listed on his resume comes from his military service. Doc. [40-2] at 1.
During his time in the Air Force, Plaintiff managed budgets and held supervisory positions such
as chief pilot, task force commander, regional director of admissions, and assistant deputy
commander of operations. Id. at 2.
While the City can show that Plaintiff did not have ten years of law enforcement
experience at a police department, there is still a question about whether Plaintiff’s military
service is “pertinent experience” so as to satisfy the hiring criteria for police chief. According to
the Fifth Circuit, “it is inappropriate to decide as a matter of law that an employee is unqualified
because he has failed to meet entirely subjective criteria.” Medina, 238 F.3d at 681 (citing
Lindsey v. Prive Corp., 987 F.2d 324, 327 (5th Cir. 1993)).
“Instead, an employee must
demonstrate that he meets objective hiring criteria at the prima facie case stage, and the issue of
whether he meets the subjective hiring criteria is dealt with at the later stages of the analysis.”
Medina, 238 F.3d at 681 (citing Lindsey, 987 F.2d at 327).
Plaintiff is able to show, and the City does not challenge, that he satisfies the objective
hiring criteria for the position. Such is demonstrated by Plaintiff’s resume and deposition
testimony summarizing his work experience and qualifications. Because Plaintiff can show that
he meets the objective hiring criteria, he is able to make a prima facie case of discrimination on
his failure to promote claim. Oden v. Oktibbeha Cnty., Miss., 246 F.3d 458, 469 (5th Cir. 2001)
7
(“A plaintiff must demonstrate that he meets objective promotion criteria at the prima facie stage
of his case.”) (citations omitted). Summary judgment should not be granted then on this issue at
this stage of the analysis. See id. (“Whether an employer’s subjective hiring criteria serves as
pretext for discrimination is an issue for the trier of fact to decide in the later stages of the
burden-shifting analysis.”) (citations omitted).
B
After a Title VII plaintiff makes a prima facie case of discrimination, the burden shifts to
the defendant-employer to articulate a “legitimate, nondiscriminatory reason” for its failure to
promote. Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999) (citations
omitted). An employer is “allowed to be incorrect in its assessment of the facts it relies on to
justify [an adverse decision] but it is not allowed to have any discriminatory animus against [the
plaintiff] in making its decision.” Vaughn, 665 F.3d at 636 (citations omitted). If the employer
“provides a legitimate, nondiscriminatory reason for [its] decision, the burden shifts back to the
plaintiff.” Johnson, 351 F.3d at 622. The plaintiff must then “prove either that the defendant’s
articulated reason is merely a pretext for race discrimination (the pretext alternative), or that the
defendant’s reason, while true, is only one of the reasons for its decision, and another
‘motivating factor’ is the plaintiff’s protected characteristic (the mixed-motives alternative).”
Autry, 704 F.3d at 347 (citing Vaughn, 665 F.3d at 636).
The City’s proffered reason for failing to promote Plaintiff to police chief is that he did
not meet the minimum experience requirements.
The City contends that it hired a better
candidate for the position and race did not influence the decision. In response, Plaintiff contends
that the City’s proffered reason is false and that he can show pretext because he is clearly better
qualified than McQueen.
8
A plaintiff may establish pretext in a failure to promote case by showing he was “clearly
better qualified” than the hired applicant. See Price, 283 F.3d at 723 (“In order to establish
pretext by showing the losing candidate has superior qualifications, the losing candidate’s
qualifications must ‘leap from the record and cry out to all who would listen that he was vastlyor even clearly-more qualified for the subject job.’”) (citation omitted). “A fact finder can infer
pretext if it finds that the employee was ‘clearly better qualified’ (as opposed to merely better or
as qualified) than the employees who are selected.” EEOC v. La. Office of Cmty. Servs., 47 F.3d
1438, 1444 (5th Cir. 1995) (citations omitted). “To establish a fact question as to relative
qualifications, a plaintiff must provide sufficiently specific reasons for his opinion; mere
subjective speculation will not suffice.” Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th
Cir. 1996).
Plaintiff argues that his education and work experience are superior to McQueen’s,
making him the better candidate for police chief. Plaintiff primarily focuses on his educational
background as the basis for being more qualified than McQueen. Plaintiff has a bachelor’s
degree in military history and a master’s degree in aeronautical sciences. McQueen does not
have a college degree. Though Plaintiff makes much of his educational background, he does not
explain how it makes him more qualified for the position.
Other than ten years of pertinent experience, the qualifications for police chief included:
knowledge of implementing and managing a police department operating budget, application of
personnel management employment law in a police agency, familiarity with developing effective
disciplinary and promotion practices, experience in implementing community-oriented policing
philosophy, and experience in developing and maintaining positive relationships with local, state,
9
and federal law enforcement agencies. Doc. [40-6]. The parties do not dispute that Plaintiff and
McQueen met these requirements.
In additional support of his “clearly better qualified” argument, Plaintiff asserts that he
has managed a $4.5 million military budget and McQueen has no comparable experience.
Plaintiff highlights his 25 years of military experience as well as his work with the North Dakota
Highway Patrol and Columbus Police Department. He managed subordinates and worked on
combat, counter-terrorism, and counter-narcotics missions in the Air Force. He also achieved the
rank of Lieutenant Colonel. However, both candidates have significant experience, and any
“attempt to equate years served with superior qualifications … [is] unpersuasive.” Bodenheimer
v. PPG Indus., Inc., 5 F.3d 955, 959 (5th Cir. 1993).
Regarding McQueen’s experience, the record shows he had worked over 20 years in the
Columbus Police Department when he applied for police chief. He progressed through the ranks
of seniority at the Police Department. McQueen was hired as a basic patrolman in 1988,
promoted to Corporal in 1992, and then to Lieutenant in 1999. McQueen Aff. [34-7] at 1.
During deposition, McQueen stated that has held every position within the Columbus Police
Department except overseeing the Narcotics Unit. McQueen Dep. [34-9] at 2. McQueen
investigated crimes and complaints, supervised other officers, headed divisions within the
department, and even served as interim Chief of Police before being hired for the position.
While McQueen does not have a bachelor’s degree, he does have a high school diploma, and
earned 131 hours in college at Jackson State University and Hinds Community College. Id. at 3;
McQueen Aff. [34-7] at 2.
Based on the evidence in the record, this Court cannot conclude that Plaintiff was
“clearly better qualified” than McQueen. See Deines v. Tex. Dep’t of Protective and Regulatory
10
Servs., 164 F.3d 277, 282 (5th Cir. 1999) (“employer’s judgment as to qualifications will not be
probative of the issue of a discriminatory motive unless the qualifications are so widely disparate
that no reasonable employer would have made the same decision”). Although Plaintiff contends
his military career is more extensive than McQueen’s career in law enforcement, “greater
experience alone will not suffice to raise a fact question as to whether one person is clearly more
qualified than another.” Nichols, 81 F.3d at 42. “More evidence, such as comparative work
performance, is needed.” Id. Here, Plaintiff fails to submit evidence of comparative work
experience.
Nor does Plaintiff demonstrate that his military experience is comparative to
McQueen’s law enforcement experience. Further, Plaintiff does not attempt to compare his law
enforcement career at the North Dakota Highway Patrol and Columbus Police Department to
McQueen’s.
Plaintiff performed supervisory functions and managed budgets while in the
military, not in a state or local law enforcement department like McQueen. And McQueen,
unlike Plaintiff, served as interim Chief of Police around the time the vacancy was posted.
Because Plaintiff does not submit sufficient evidence, he fails to raise a fact question on whether
he was “clearly better qualified” than McQueen. See Price, 283 F.3d at 723. Plaintiff, therefore,
must rebut the City’s proffered reason on other grounds.
C
Plaintiff additionally asserts that the City’s reason for not selecting him as police chief is
false or unworthy of credence because he was qualified for the position and his race is the real
reason for the failure to promote. To prove the City’s reason is false or unworthy of credence,
Plaintiff must produce evidence, viewed in the light most favorable to him, that would permit a
jury to believe the proffered reason for the adverse action is not true and, instead, is pretext for
race discrimination. Vaughn, 665 F.3d at 637 (citation omitted).
11
As noted above, Plaintiff meets the objective hiring criteria for police chief and the Court
assumes for summary judgment purposes that he was qualified for the position. Plaintiff argues
that the changes to the vacancy notice regarding college graduation indicate the City’s true
intent, which he claims was to hire a black police chief. Plaintiff contends that the vacancy
initially required applicants to graduate from a four-year university or college but was later
changed so that African-Americans would qualify. To support this argument, Plaintiff submits
deposition testimony and a newspaper article published at the time the police chief applications
were reviewed.
Mitchell, the City’s Human Resources Director, testified during her deposition that she
prepared the first draft of the police chief vacancy and listed graduation from an accredited fouryear university or college as a preference, not a requirement. Mitchell Dep. [34-3] at 3-4.
Before the vacancy was published, the City’s Chief Operations Officer directed Mitchell to
change the vacancy to reflect that graduation from college was required. Id. at 4; Armstrong
Dep. [34-2] at 3. Mitchell updated and published the vacancy per those instructions. After
seeing the vacancy in a newspaper, the Mayor of Columbus, an African-American man,
recommended to the Chief Operations Officer that the graduation requirement be changed back
to a preference. Smith Dep. [34-1] at 3. The Mayor testified by deposition that only two of the
City’s former police chiefs had a bachelor’s degree. Id. At the Mayor’s recommendation, the
vacancy was amended to list graduation from a four-year university or college as preferred.
Plaintiff argues that the Mayor, who has known McQueen for over 20 years, used his
position to ensure that McQueen was hired as police chief. According to Plaintiff, it was known
throughout the Columbus Police Department that the City planned to hire a black police chief.
Plaintiff claims three black officers also told him he would not get the position because of his
12
race. Plaintiff further contends that the selection process for police chief was tainted because the
Mayor helped screen applications. When asked during deposition, the Mayor denied being
involved in the initial screening process. Smith Dep. [34-1] at 6. The Chief Operations Officer
testified at deposition that he made the decision to cut Plaintiff at the initial screening and that
the Mayor was not involved in the decision. Armstrong Dep. [34-2] at 5. However, Plaintiff
submits a newspaper article from the relevant time period stating that the Mayor helped screen
applications. See Doc. [40-7].
Whether or not the Chief Operations Officer decided to cut Plaintiff’s application, he
reported to the Mayor and so did other officials involved in the selection process for the new
police chief. The Mayor was included in the hiring process but was unable to vote for a
candidate. Smith Dep. [34-1] at 8-9. The City Council consisted of six members, four were
African-American and two were Caucasian. Karriem Dep. [34-6] at 4. The two Caucasian
councilmen voted against hiring McQueen, and the four African-American councilmen voted in
favor of hiring him. Id. at 6. The Mayor testified during deposition that he did not recall
whether he recommended or otherwise had any influence on the decision to hire McQueen.
Smith Dep. [34-1] at 6. McQueen and the Mayor both testified that they have known each other
approximately 20 years and that they are professional acquaintances but not friends. McQueen
Dep. [34-9] at 3; Smith Dep. [34-1] at 4-5.
This rebuttal evidence, when viewed in the light most favorable to Plaintiff, calls into
question the City’s proffered reason for not promoting or further considering Plaintiff for police
chief. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (5th Cir. 2000) (“Proof
that the defendant’s explanation is unworthy of credence is simply one form of circumstantial
evidence that is probative of intentional discrimination, and it can be quite persuasive.”) (citation
13
omitted). It supports Plaintiff’s argument that race may have influenced the hiring decision, and
undermines the City’s contention that it did not promote Plaintiff solely because he lacked
sufficient experience. “Evidence demonstrating the falsity of the defendant’s explanation, taken
together with the prima facie case, is likely to support an inference of discrimination even
without further evidence of defendant’s true motive.” Sandstad v. CB Richard Ellis, Inc., 309
F.3d 893, 897 (5th Cir. 2002) (citing Reeves, 530 U.S. at 147-48). Based on his rebuttal
evidence, Plaintiff raises a genuine issue of material fact regarding whether the City’s proffered
reason is pretext for race discrimination. Therefore, summary judgment is inappropriate at this
time.
III
In light of the analysis above, Plaintiff makes a prima facie case for race discrimination
based on the City’s failure to promote him to police chief. Because Plaintiff also establishes a
genuine issue of material fact regarding the City’s proffered reason, summary judgment cannot
be entered. The City’s motion is therefore DENIED.
SO ORDERED, this the 30th day of September 2014.
/s/Debra M. Brown
.
UNITED STATES DISTRICT JUDGE
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