Black v. Mississippi Department of Human Services
Filing
32
ORDER granting 24 Motion for Summary Judgment for the reasons set out in the order. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on January 24, 2012. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
FLORENCE BLACK
PLAINTIFF
V.
CIVIL ACTION NO. 3:11CV16 DPJ-FKB
MISSISSIPPI DEPARTMENT OF HUMAN SERVICES
DEFENDANT
ORDER
This Title VII retaliation/discrimination case is before the Court on Defendant
Mississippi Department of Human Services’ motion for summary judgment [24] pursuant to
Federal Rule of Civil Procedure 56. Plaintiff Florence Black has responded in opposition. The
Court, having considered the memoranda and submissions of the parties, finds that Defendant’s
motion should be granted.
I.
Facts and Procedural History
Florence Black, an African-American, began her employment with the Mississippi
Department of Human Services (DHS) in November 1990, first as a Clerk Typist and later as a
Secretary Executive. Black Dep. at 13. In November 1997, she left DHS and accepted a
Secretary Administrator position with the Department of Archives and History. Id. at 15. In
June 1999, she came back to DHS, retaining her Secretary Administrator title, which she still
holds. Id. at 15.
After returning to DHS, Black expressed interest in a “program position” and a Special
Projects III position, neither of which she received. Id. at 32; Pl.’s Aff. [29-2] at 1-2. Believing
she had been discriminated against on account of her race, Black filed a charge of race
discrimination with the Equal Employment Opportunity Commission in 2006. Black ultimately
filed a lawsuit and settled her claims with DHS.
Black now claims that DHS retaliated against her for complaining and continued to
discriminate against her based on race. In particular, she asserts that DHS hired an unqualified
white female in November 2008 for the Special Projects IV position. Aggrieved by the decision,
Black filed her second EEOC Charge in April 2009, and filed this action after exhausting her
administrative remedies. DHS has now moved for summary judgment as to all of Black’s
claims. The Court has subject matter jurisdiction, and having considered the submissions of the
parties, finds Defendant’s motion should be granted.
II.
Summary Judgment Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil
Procedure when evidence reveals no genuine dispute regarding any material fact and that the
moving party is entitled to judgment as a matter of law. The rule “mandates the entry of
summary judgment, 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).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The
nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324 (citation omitted). In reviewing the evidence,
factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069,
2
1075 (5th Cir. 1994). When such contradictory facts exist, the court may “not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic
arguments have never constituted an adequate substitute for specific facts showing a genuine
issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); SEC
v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1997); Little, 37 F.3d at 1075 (5th Cir. 1994) (en banc).
III.
Analysis
A.
Race Discrimination
1.
Prima Facie Case
Black claims that DHS discriminated against her on account of her race in violation of
Title VII. As an initial matter, the 2009 EEOC Charge of Discrimination and her Complaint
both make general reference to a history of being overlooked for the Special Projects IV
position. But the only specific employment decision Black mentions in either is the failure to
promote in November 2008. Although the facts section of her Response identifies a number of
other incidents occurring from 2005 through 2011, she unequivocally testified during her
deposition—without objection or clarification from counsel—that the “2008 Special Projects
Officer 4 opening . . . is the only subject of this suit.” Black Dep. at 39. And the November
2008 promotion decision is the only decision Black directly addresses under the McDonnellDouglas paradigm. See Pl.’s Resp. at 9–10. Thus, to the extent her Response could be read as
an attempt to broaden the scope of the suit, she has not met her burden under Rule 56 of
3
establishing a claim as to any other incident, and the Court focuses on the November 2008
employment decision.1
To establish a prima facie case on her failure-to-promote claim, Black must show: (1) she
belongs to a protected class; (2) she applied for and was qualified for a position for which
applicants were being sought; (3) she was rejected; and (4) a person outside of her protected
class was hired for the position. Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d
408, 412 (5th Cir. 2007).
The parties dispute whether Black met the minimum qualifications for the position.
Specifically, DHS avers Black did not possess the minimum supervisory experience. At the time
she applied for the position, Black did not have a college degree. Black Dep. at 31. According
to the job description, an applicant holding only a high school diploma must have nine years of
experience related to the duties of the position, three years of which “must include line or
functional supervision.” Black Dep. Exh. 3 [24-1].2 Black testified that during her employment
with the Department of Archives from November 1997 to June 1999 (20 months), she supervised
one employee, but that was her only supervisory experience. Black Dep. at 16-19. Thus,
Black’s supervisory experience falls short of the stated qualifications.
Black attempted to address this deficiency in her Response by attaching a purported letter
from the State Personnel Board, dated January 30, 2006, indicating that she had been placed on
1
It appears that some of the older events would be subject to res judicata or would be time
barred or unexhausted. These issues have not been explored.
2
The description allows for substitution of “[r]elated education and related experience . .
., except there shall be no substitution for the three (3) years of line or functional supervision.”
Id.
4
the “List of Eligibles” for six “Projects Officer IV, Special” positions in various counties,
expiring January 31, 2007. Pl.’s Resp. Exh. H [29-8]. She claims this letter reflects that the
“Mississippi Personnel Board certified that Ms. Black had met the minimum qualifications for
the Special Projects Officer IV position.” Pl.’s Resp. at 10. As DHS points out, however, a
party cannot resist summary judgment by submitting unauthenticated documents or hearsay. See
Roberts v. City of Shreveport, 397 F.3d 287, 295 (5th Cir. 2005). Black has never attempted to
rectify the evidentiary deficiency DHS noted, and her exhibit is not competent evidence.3
Considering the admissible evidence, Black lacked the requisite supervisory experience
dictated by the job description. Her own testimony established that her supervisory experience
was limited to twenty months, rather than the three years stated in the qualifications. Because
Black has not met her burden to show that she was qualified for the promotion sought, summary
judgment as to her race-discrimination claim is appropriate.
2.
Legitimate Non-Discriminatory Reason
Even assuming a prima facie case, Black has not rebutted DHS’s legitimate nondiscriminatory reason for its decision. According to Defendant, it hired the more qualified
candidate. See Patrick v. Ridge, 394 F.3d 311, 318 (5th Cir. 2004) (holding that “choosing some
other candidate because he is the best-qualified individual for the job is generally a legitimate,
nondiscriminatory reason for an adverse employment decision”).
3
Even if admissible, the January 30, 2006, letter is not probative of Black’s qualifications
for the disputed promotion in November 2008. The letter shows only that Plaintiff was deemed
qualified from January 30, 2006, through January 31, 2007—nearly two years before the
promotion of the white employee of which Plaintiff now complains. Thus, the January 30, 2006,
letter does nothing to establish that Plaintiff was qualified for the Special Projects Officer IV
position at the time she failed to win the promotion in November 2008.
5
Black counters that she was actually the more qualified of the two. “In order to create a
permissible inference of discrimination under this theory, ‘disparities in qualifications must be of
such weight and significance that no reasonable person, in the exercise of impartial judgment,
could have chosen the candidate selected over the plaintiff for the job in question.’” Nunley v.
City of Waco, 440 F. App’x 275, 279 (5th Cir. 2011) (citing Deines v. Dep’t of Protective &
Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir. 1999)). “[B]etter education, work experience,
and longer tenure with the company do not establish that [plaintiff] is clearly better qualified.”
Price v. Fed. Exp. Corp., 283 F.3d 715, 723 (5th Cir. 2002). And merely “[s]howing that two
candidates are similarly qualified does not establish pretext.” Price, 283 F.3d at 723.
“Ultimately, the law requires only that the employer’s decision is ‘somewhere within the realm
of reason.’ This is because the judicial system is not as well suited to evaluate professional
qualifications as those who have trained and worked for years in the relevant field of endeavor.”
Manora v. Donahoe, 439 F. App’x 352, 357 (5th Cir. 2011).
The Fifth Circuit Court of Appeals summarized all of this in Deines, stating that
the 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. It is hardly a basis for
the jury to find mendacity on the part of the employer when its judgments on
qualifications are somewhere within the realm of reason. There is then, for the
purposes of proving pretext, a difference in simply ‘second-guessing’ an
employer’s judgment and finding proof of mendacity.
164 F.3d at 282; see also Johnson v. Earth Grains Baking Co., 203 F.3d 828 (5th Cir. 1999)
(affirming summary judgment); Dailey v. Vought Aircraft Indus., Inc., 135 F. App’x 642, 645
(5th Cir. 2005) (affirming summary judgment where plaintiff offered “no more than his own
assertions that he is better qualified”).
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Here, Black offers her belief that she was the better candidate and the successful
applicant for the Special Projects Officer IV position in November 2008, Brenda Pennock, was
not qualified. Specifically, Black asserts that Pennock’s degree in probation parole “has
absolutely no relevance to the Defendant’s activities,” and that Pennock’s previous work
experience was not sufficiently related to the duties of a Special Projects Officer IV as to qualify
under the job requirements because she had worked for a state agency for only three years at the
time of the promotion. Pl.’s Resp. [30], at 10, 11.
Viewing the summary judgment record in a light most favorable to Black, and
considering the stated job qualifications found in the record, Black has not created a jury
question. She instead questions DHS’s qualifications and its evaluation of those qualifications as
applied to Pennock. But DHS was free to set its qualifications and to evaluate the relevance of
Pennock’s education as applied to those qualifications. See Campbell v. England, 234 F. App’x
183, 186–87 (5th Cir. 2007) (rejecting plaintiff’s subjective belief that employer was incorrect in
assessment of educational qualifications). And as to the relevance of Pennock’s work
experience, DHS correctly observed that the minimum qualifications for the position required
only “experience related to the . . . described duties” of the position. Def.’s Mot. Summ. J. [24]
Ex. A, Black Dep., at Ex. 3. Contrary to Black’s argument, the requirements are not limited to
experience with a state agency. Regardless, the Court will not second-guess DHS’s judgment
regarding Pennock’s qualifications absent proof that Black was clearly more qualified. Deines,
164 F.3d at 282. No such evidence has been presented. Thus, even assuming a prima facie case,
Black has not met her burden at the pretext stage, and her discrimination claim should be
dismissed.
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B.
Retaliation
Black also claims that DHS retaliated against her for engaging in protected activity. “A
plaintiff establishes a prima facie case of retaliation by showing (I) [she] engaged in a protected
activity, (ii) an adverse employment action occurred, and (iii) there was a causal link between
the protected activity and the adverse employment action.” Hernandez v. Yellow Transp., Inc.,
641 F.3d 118, 129 (5th Cir. 2011). “Summary judgment is appropriate if the plaintiff cannot
support all three elements.” Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 331 (5th Cir. 2009).
Black satisfies the first two prongs, but the parties dispute whether she has adequately
demonstrated the causal link at the prima facie stage. DHS further contends that Black fails to
meet her ultimate burden.
According to Black, the retaliation stemmed from her 2006 EEOC charge and subsequent
lawsuit against DHS. Black Dep. at 41. DHS argues that because approximately two years
elapsed between the 2006 EEOC charge and the promotion at issue (November 2008), the
employment decision is too remote in time from the protected activity to establish a causal link.
Indeed, “[t]emporal proximity between [a plaintiff’s] first Title VII suit and the alleged adverse
employment action[ ] only can prove the causation element of [her] prima facie case when the
protected act and the adverse employment action are ‘very close’ in time.” Washburn v. Harvey,
504 F.3d 505, 511 (5th Cir. 2007) (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,
273-74 (2001) (noting that a three-month or four-month period may be close enough to make a
prima facie showing of causation but holding that a twenty-month period was not)).
Black responds that the “problem” with Defendant’s “argument is it fails to take into
consideration all the other ways Ms. Black was retaliated against in between that first charge, the
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2008 failure to promote, and even after the promotion that show a continuous retaliatory
environment that Ms. Black has been subjected to over the years.” Pl.’s Resp. at 12.4 As stated
above, the Court views the reference to what Black perceived to be a “retaliatory environment”
as an attempt to prove a casual link rather than an expansion of perceived adverse employment
actions. And in that light, Black’s single sentence on causation—and the facts she alleged earlier
in her Response—are simply too conclusory and subjective to meet her Rule 56 burden of
showing that the promotion decision in 2008 was causally linked to the protected activity in
2006.5
Even if Black could state a prima facie case of retaliation, she has still fallen short of
meeting her ultimate burden of showing retaliation. Black never responds to this portion of
DHS’s argument, but assuming she would again contend that she was better qualified for the
position, that argument remains insufficient. See Sec. III(A)(2), supra.
IV.
Conclusion
Based on the foregoing, the Court finds that Defendant’s motion for summary judgment
should be granted.
A separate judgment will be entered in accordance with Federal Rule of Civil Procedure
58.
SO ORDERED AND ADJUDGED this the 24th day of January, 2012.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
4
This sentence represents Black’s entire substantive Response to DHS’s causation
argument.
5
As noted above, some of the alleged incidents pre-dated the protected activity and others
post-dated the employment decision disputed in this case.
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