King v. The Board of Trustees of State Institutions of Higher Learning of the State of Mississippi et al
ORDER granting in part and denying in part 61 Motion for Summary Judgment. Signed by District Judge Carlton W. Reeves on 3/27/2014. (kf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
DERRICK J. KING
THE BOARD OF TRUSTEES OF STATE
INSTITUTIONS OF HIGHER LEARNING
OF THE STATE OF MISSISSIPPI d/b/a
UNIVERSITY OF MISSISSIPPI
MEDICAL CENTER and HENK de
MEMORANDUM OPINION AND ORDER
Before the Court is the Defendants’ motion for summary judgment. Docket No. 61. The
Plaintiff opposes the motion. Docket No. 64. The Defendants have filed a rebuttal brief, Docket
No. 67, and the matter is ready for review. The motion is hereby granted in part and denied in
Plaintiff Derrick King filed this case on July 1, 2011. Docket No. 1. He filed a second
amended complaint on December 9, 2011. Docket No. 20. In his complaint, he invokes Title
VII of the Civil Rights Act against the University of Mississippi Medical Center (hereinafter
“UMMC”) and claims under 42 U.S.C. §§ 1981 and 1983 against UMMC’s Chief Technology
Officer, Henk de Weerdt (hereinafter “de Weerdt”) individually.1 He filed suit against the Board
of Trustees of State Institutions of Higher Learning (hereinafter “IHL”), UMMC, and de Weerdt
In a prior decision by this Court, the Court explained how the § 1981 claim could proceed against de
Weerdt individually, see Docket No. 22, at 5-6; King v. Bd. of Trustees of State Institutions of Higher Learning,
2012 WL 2870789, at *3 (S.D. Miss. July 11, 2012), while no such claim could proceed against the state defendants,
e.g. IHL and UMMC. See Meredith v. Jackson State Univ., No. 3:09cv303, 2010 WL 606402, at *2 (S.D. Miss.
Feb. 17, 2010) (university is arm of the state and Eleventh Amendment bars claims against it under Sections 1981
and 1983). In addition, de Weerdt could not be individually liable under Title VII. Docket No. 22, at n.2 (citing
Kent v. Vicksburg Healthcare, LLC, No. 5:10cv195-DCB-RHW, 2012 WL 1556511, at *6, n. 18 (S.D. Miss. April
and requests damages for claims arising from Plaintiff’s allegations that he was not promoted
and was eventually terminated from UMMC. Plaintiff alleges that de Weerdt is liable for race
discrimination and retaliation for filing an EEOC charge in violation of 42 U.S.C § 1981, and for
violating the Fourteenth Amendment to the U.S. Constitution, actionable under 42 U.S.C. §
1983. His amended complaints also allege that de Weerdt is liable for malicious interference
King was hired as a systems analyst in the department of pathology by UMMC in July
2008. Plaintiff is a black male. Plaintiff remained in his position until his employment at
UMMC came to an end when UMMC implemented a reduction in force plan (hereinafter “RIF”)
A. Reduction in Force
Defendants have provided evidence indicating that, in 2009, Charlie Enicks, the new
chief operating officer (COO) of UMMC, decided to consolidate the information technology (IT)
department into one management group. Prior to the consolidation, UMMC had a central IT
division and each department hired its own IT staff. Defs.’ MSJ, Docket No. 62, at 2; de Weerdt
Dep. at 21. The departments of medicine, pathology, pediatrics and cardiology each had its own
IT staff who were not part of the central group. De Weerdt testified in his deposition that the
structure created problems because each IT department had its own policies and standards and
was not connected to the general direction of central IT. UMMC implemented a Reduction in
Force Business Plan which consolidated all of the IT positions under the management of central
IT; a total of twenty positions were eliminated. See RIF Business Plan, Docket No. 61, Ex. B.
As a result of the RIF, four employees were unable to find positions and continue employment at
the medical center. See de Weerdt Dep., Docket No. 61, Ex. A, at 55. Three of the employees
were white, and one, the plaintiff, was black.
Before the reduction in force went into effect, Plaintiff applied for a position entitled
Supervisor of Client Service Operations (hereinafter “Supervisor”) on February 18, 2010.
UMMC has submitted evidence that, originally, seven applicants applied for the position: three
whites, two blacks, one Hispanic and one Asian. See EEO Summary, Docket No. 61, Ex. D.
One white and one black applicant withdrew their applications from consideration. The Asian
applicant was disqualified in a pre-screening process. The remaining four applicants – two
whites, one Hispanic, and one black applicant (the Plaintiff) – were interviewed; the interview
panel selected Russell Donald, a white male applicant, to fill the position.
Plaintiff testified that he heard rumors of a department restructuring around June 2010
and those rumors were confirmed when UMMC informed all affected employees of the
reduction in force, which went into effect on June 17, 2010. That same day, King applied for six
upper-level management positions. See Derrick King’s application history, Docket No. 61, Ex.
He also filed his Charge of Discrimination with the EEOC, complaining of race
discrimination. See EEOC Charge, Docket No. 61, Ex. H.
B. EEOC Charge
King filed a charge of discrimination with the EEOC on June 17, 2010. In the charge, he
asserted that he had been discriminated based on his race having “been repeatedly denied
promotions, and these promotions have been given to white males.” Docket 64-12. He further
explained that he did not “see any non-race-based reason for these denials of promotions.” Id.
Although his charge alluded to other positions, he focused particular attention on the position of
Supervisor of Client Service Operations, which had been filled within the last 180 days by
Donald, whom King claimed was less qualified than him. Id. He concluded the charge, with the
following request: “I request the EEOC to investigate to determine whether I have been the
victim of race discrimination in violation of the Civil Rights Act of 1964.” Id.
On June 18, 2010, King applied for another position. Docket No. 61, Ex. G. In his
deposition, though, Plaintiff conceded that he is only suing based on the denial of the Supervisor
of Client Services Operations position, and not based on the applications that he filed for other
positions.2 King Dep., Docket No. 61, Ex. I, at 45-46.
King’s system analyst position was eliminated during the RIF along with nineteen other
positions. Having not been selected for any of the positions for which he applied, King’s
employment ended on August 19, 2010. The EEOC conducted its investigation and, at King’s
request, issued its Notice of Right to Sue on April 5, 2011. He timely filed the instant action.
The Defendants have filed a motion to dismiss, or in the alternative, for summary
judgment. Since the Court is considering matters outside the pleadings, the motion must be
treated as one for summary judgment. First Bank and Trust v. Employers Mut. Cas. Co.,
3:08cv685-CWR-LRA, 2011 WL 4916428, at *2 (S.D. Miss. Oct. 17, 2011) (citing Fed. R. Civ.
A. Summary Judgment
Summary judgment is appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). Facts
“Q: Is your intent in the lawsuit to file on the fact that you didn’t get the promotion to the supervisor
client/services and the termination?
Q: Okay. Any of these others?
See King Dep., Docket No. 61, Ex. I, at 45-46.
are “material” when they might affect the outcome of the case, and a “genuine issue” exists when
the evidence would allow a reasonable jury to return a verdict for the non-moving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party is “entitled to
judgment as a matter of law” when the non-moving party fails to make an adequate showing on
an essential element for which it has the burden of proof at trial. See Cleveland v. Policy Mgmt.
Sys. Corp., 526 U.S. 795, 805-06 (1999) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)). The Court will “view the evidence and draw reasonable inferences in the light most
favorable to the non-movant,” Maddox v. Townsend & Sons, Inc., 639 F.3d 214, 216 (5th Cir.
2011) (citation omitted), but conclusory assertions are not competent summary judgment
evidence. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994).
In ruling on a motion for summary judgment, the court will not weigh evidence or draw
from the facts legitimate inferences for the movant. Strong v. Dept. of Army, 414 F.Supp.2d 625,
628 (S.D. Miss. 2005).
Evaluating credibility and drawing factual inferences are functions
reserved for the jury. Id. Particularly within the fact-sensitive realm of Title VII litigation,
“[t]his Court is ever mindful that although a useful device, summary judgment ‘must be
employed cautiously because it is a final adjudication on the merits.’” Patton v. Hinds Cnty.
Juvenile Detention Ctr. (Henley-Young), No. 3:10-CV-138, 2011 WL 2912897, at *3 (S.D. Miss.
July 18, 2011) (quoting Jackson v. Cain, 865 F.2d 1235, 1241 (5th Cir. 1989)). See also
Coleman, Sr. v. CMH Homes, Inc., No. 4:09cv168-CWR-KFB, 2011 WL 198130 (S.D. Miss.
Jan. 20, 2011) (“[S]ummary judgment is an inappropriate tool for resolving claims of
employment discrimination which involve nebulous questions of motivation and intent . . . and
motivation and intent depend on complicated inferences from the evidence and are therefore
peculiarly within the province of the factfinder.”) (quoting Thornbrough v. Columbus Greenville
R.R. Co., 760 F.2d 6333, 640-41 (5th Cir. 1985), abrogated on other grounds, St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502 (1993)). Therefore, “[e]ven if the standards of Rule 56 are met, a
court has discretion to deny a motion for summary judgment if it believes the better course
would be to proceed to full trial.” Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 538 (5th
Cir.2012) (citations and quotation marks omitted).
I. Claims Against UMMC
Plaintiff has filed suit against UMMC under Title VII, alleging race discrimination, on
three grounds. First, he alleges that race discrimination influenced UMMC’s failure to promote
him to the Supervisor of Client Services Operations. He also alleges that his termination as a
systems analyst resulted from race discrimination; and that he suffered retaliation for filing a
Charge of Discrimination with the EEOC. We will address each issue in turn.
A. Race Discrimination Under Title VII
At the summary judgment stage, plaintiff need not present a prima facie case of
discrimination, but must simply raise a genuine issue of material fact as to the existence of a
prima facie case. Thornbrough v. Columbus & Greenville R. Co., 760 F.2d 633, 641 n.8 (5th
Cir. 1985). To establish a prima facie case for unlawful race discrimination for the failure to
promote, a plaintiff must prove that: 1) he is a member of a protected class; 2) he applied and
was qualified for a job for which the employer was seeking applicants; 3) despite his
qualifications, he was rejected; and 4) after his rejection, the position was filled by someone of a
different race or remained open and the employer continued to seek applicants from persons of
complainant’s qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir. 2000); Celestine v. Petroleos de Venezuella
SA, 266 F.3d 343, 354-55 (5th Cir. 2001). A plaintiff must carry this initial burden by a
preponderance of the evidence. Haynes, 207 F.3d at 300.3
The Defendants do not dispute that Plaintiff is a member of a protected class, in that he is
African American; that he applied for a job for which the employer was seeking applicants; that
he was ultimately rejected; and that the position was filled by someone of a different race. As
will be discussed more fully below, King was qualified for the position, but Defendants suggest
that the position went to Donald for legitimate nondiscriminatory reasons in exercise of their
In evaluating those reasons, some discussion of the candidates’
qualifications is necessary.
Courts have held that, when the stated qualifications for the position at issue are
objective, such as a specific degree or experience requirement, a plaintiff must show that he or
The Defendants have argued that, because this case involves a reduction in force, the McDonnell-Douglas
test is altered. The Fifth Circuit has indicated that plaintiffs who are laid off are incapable of proving the fourth
prong of the McDonnell-Douglas test, which is actual replacement by someone outside of the protected group. See
Amburgey v. Corhart Refractories Corp., Inc., 936 F.2d 805, 812 (5th Cir. 1991); Thornbrough, 760 F.2d at 642,
abrogated on other grounds by St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Under this line of cases, “a
plaintiff must (1) satisfy the standing requirements of the statute by showing that he is within the protected group
and that he has been adversely affected—e.g., discharged or demoted—by the employer’s decisions; (2) show that
he was qualified to assume another position at the time of the discharge or demotion; and (3) produce ‘evidence,
circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to
discriminate in reaching the decision at issue.’” Thornbrough, 760 F.2d at 642 (quoting Williams v. Gen. Motors
Corp., 656 F.2d 120, 129 (5th Cir. 1981)). The reasoning is that, under the traditional prima facie case, the plaintiff
“need not introduce any evidence, either direct or circumstantial, that the employer in fact engaged in intentional
discrimination” because “discrimination is presumed from his replacement.” See Thornbrough, 760 F.2d at 642.
However, the Defendant’s reliance on this modified prima facie case is misplaced. In a typical reductionin-force case, the plaintiff’s position was eliminated, the plaintiff is laid off, and the plaintiff has not been replaced
by anyone. In this case, however, the Plaintiff was laid off, he applied for another position, and that position was
filled by someone of a different race. The Plaintiff’s claim is based on the refusal to promote him to another
position, not the loss of the Plaintiff’s previous position. Plaintiff has argued that the Defendants failed to promote
him on the basis of race – the classic Title VII claim. The implication is that, if UMMC had promoted the Plaintiff,
he would not have been dismissed as a result of the reduction in force because the Supervisor of Client Service
Operations position that he would have received was not eliminated; thus, he would have remained employed. The
altered prima facie case for suits involving reduction in force does not apply here because there is in fact someone
who filled the position which Plaintiff was denied. See Celestine, 266 F.3d at 354-55; Williams v. Gen. Motors
Corp., 656 F.2d 120, 128 (5th Cir. 1981) (“Reduction-in-force cases are obviously outside the embrace of
[McDonnell Douglas ] since reduction-case plaintiffs are simply laid off and thus incapable of proving the third
[McDonnell Douglas ] element, i.e., actual replacement by a younger employee.”) (emphasis in original). Thus, this
Court applies the traditional prima facie case for failure to promote, and it will address the reduction in force where
it is relevant.
she meets the stated qualifications as part of the prima facie case. Johnson v. Louisiana, 351
F.3d 616, 622 (5th Cir. 2003) (“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.’”);
Davis v. Dallas Indep. Sch. Dist., 448 F. App’x 485, 491 (5th Cir. 2011). The plaintiff need only
meet the minimum qualifications for the position to make a prima facie case. Forteneaux v.
Shell Oil Co., 289 F. App’x 695, 697 (5th Cir. 2008); Khadivi v. Jackson State Univ., 128 F.
Supp. 2d 969 (S.D. Miss. 2000) (granting summary judgment based on plaintiff’s failure to
establish prima facie case where he did not meet the “minimum qualifications” for the position).
An inquiry into the comparative qualifications of the plaintiff and the person selected over him
may be made during the employer’s rebuttal. See Walker v. Mortham, 158 F.3d 1177 n.29 (11th
Cir. 1998) (“Since Burdine, we have continually recognized that relative qualifications belong in
the rebuttal stage of the McDonnell–Douglas framework, not the prima facie stage.”).
In this case, UMMC posted the requirements and skills sought for the Supervisor position
at issue. The minimum requirements were listed as follows: “Bachelor’s degree in systems
administration, computer science, management information systems, or related field and five (5)
years of related experience or equivalent combination of education/experience.” Pl.’s Ex. 12.
Plaintiff Derrick King earned a bachelor’s degree in psychology from the University of
Mississippi in 1993. He also received a master’s degree in management information systems
(“MIS”) from Strayer University in 2009. King’s Job Application, Docket No. 61, Ex. L. It is
undisputed that Plaintiff had more than five years of related experience. See id., at p. 6 of 6
(applicant reporting that he had “at least Seven (7) years” experience). While Plaintiff did not
have a bachelor’s degree in one of the fields listed, his master’s degree in MIS and his
experience working in various information technology positions since 2002 provided him with
an “equivalent combination of education/experience” to at least meet the minimum requirement.
In fact, UMMC had a screening procedure in which its human resources department evaluated all
of the applications for a position to make sure that applicants met the minimum qualifications
before allowing them to receive an interview. At least one other applicant for this position was
“system disqualified,” the term used to describe an applicant whom HR has found lacks the
minimum qualifications based on their application, and he was not allowed to interview. See
EEO Summary, Docket No. 61, Ex. D, at p. 3 of 3. The Defendants concede that King’s
application went through and passed this screening.4 Based on the record evidence and relevant
standards, Plaintiff has established a prima facie case for his claim of race discrimination for
failure to promote under Title VII.
1. Defendants’ Proffered Reasons
Given that King has succeeded in proving the prima facie case, the burden shifts to the
defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”
Burdine, 450 U.S. at 253. Defendants have come forward with different non-discriminatory
justifications for the non-selection of Plaintiff for the Supervisor position. Defendants contend
primarily that the choice was made because “Plaintiff did not have microsoft [sic] or supervisory
experience.” Def. Mem. In Supp. of MSJ, Docket No. 62, at 10. But Plaintiff has provided
evidence which calls into doubt those reasons.
As for the lack of a bachelor’s degree in a related field, Defendant UMMC has not followed this
requirement in this case, even with the person who was actually hired for the Supervisor position. Russell Donald
also holds a bachelor’s degree in psychology, but he holds no other degrees. Neither party has argued that
psychology would be considered a “related field” by the hiring staff at UMMC. Thus, both he and Plaintiff do not
have bachelor’s degrees in the fields listed in the job posting. When the defendants have relaxed the educational
qualification to the benefit of one applicant for the same position, it must hold the other applicants to the same
standard. See Wilburn v. Dial Corp., 724 F. Supp. 521, 529 (W.D. Tenn. 1989) (“[A] genuine issue of fact exists as
to whether the plaintiff was the victim of disparate treatment in light of the fact that the defendant chose to relax one
of the required qualifications in considering [the applicant hired] for the disputed position, but refused to do the
same for the plaintiff.”)
“[T]he defendant must clearly set forth, through the introduction of admissible evidence,
the reasons for the plaintiff’s rejection.” Id. at 255. A defendant employer may introduce
evidence that the person actually promoted to the position at issue was more qualified than the
The standard for this type of evidence, however, is set high because “differences in
qualification are generally not probative evidence of discrimination unless those disparities are
‘of such a 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.’”
Celestine, 266 F.3d at 357 (quoting Deines v.Tex. Dept. of Protective and Regulatory Srvs., 164
F.3d 277, 280-81 (5th Cir. 1998)). Under Title VII, an employer is also free to choose among
equally qualified candidates as long as the employer does not apply unlawful criteria. Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
In this case, Plaintiff has produced ample unrebutted evidence that he was objectively
qualified for the position, and has raised an issue of fact about whether Defendants’ reasons are
legitimate and not a pretext for discrimination. To rebut the prima facie case, Defendants have
argued that Plaintiff simply was not “qualified” for the Supervisor position. They have provided
multiple reasons for the decision not to select King for the promotion: that they did not consider
education at all as a relevant factor, but weighed technical experience instead; that they believed
that King did not have the requisite experience with Windows-based operating systems; and that
he did not have enough supervisory experience as compared to Donald’s supervisory experience
at BankPlus. Each of these reasons is not compelling, particularly when viewing them through
the prism of a motion for summary judgment.
a. Education Not Considered Relevant
The job posting summary for the Supervisor position emphasized that the position
required a certain level of education. The minimum requirements for the position included either
a bachelor’s degree in a specific technical field or a “related field” and some experience or an
“equivalent combination of education/experience.” Pl.’s Ex. 12, at p. 3 of 7. As indicated
above, both King and Donald have a bachelor’s in psychology. While Donald has no formal
education beyond that degree, King has a master’s degree in MIS. During the pre-screening
process, UMMC’s HR department accorded “qualifying points” to applicants based on their level
of education. See Pl.’s Ex. 12, at p. 4 of 7. An applicant who had completed a master’s degree
received 120 points. Indeed, there is no category to award points to someone who has only a
bachelor’s degree in psychology, and Donald obviously had fewer qualifying points than
Plaintiff in this regard.5
Despite the importance of education as a minimum requirement for the Supervisor
position, all of the members of the interview panel testified and the record indicates that they
valued technical expertise above education, or did not consider education at all.6 The interview
panel consisted of Defendant Henk de Weerdt, UMMC’s Chief Technology Officer; James
Burns, the hiring manager for the Supervisor position; and Chris Hankins, formerly a network
engineer and, at the time of his deposition, a staff member in the Office of Information Security
According to the form, the most relevant categories for someone in Donald’s position would be the
following: applicants who have “[r]eceived High School Diploma or GED” receive 40 points; those who have
“[c]ompleted at least 120 [semester] or 180 [quarter] Units, but did not grad [sic] college” receive 80 points; those
who have “[c]ompleted associate’s degree” receive 70 points; and those who have “[c]ompleted Bachelor’s Degree
in Systems Administration, Computer Science, Management Information Systems, or related field” receive 100
points. An applicant with a bachelor’s degree in psychology does not fall squarely within any of these fields other
than the first for applicants with a high school diploma, which only awards 40 points. The record does not indicate
what amount of points Donald received, but it is clear that King qualified to receive 120 points and that Donald
qualified for fewer than 120 points. This point system indicates the importance that UMMC ostensibly placed on
education when determining who was qualified for this position–a level, as noted below, which the interview panel
agrees that it ignored.
See Defs.’ Reply to P.’s Response to MSJ, Docket No. 67, at 4 (“Henk deWeerdt [sic], James Burns,
Chris Hankins, and even Russell Donald, all testified in their depositions that technical expertise was more
important than a master’s degree.”).
at UMMC. In his deposition, Hankins testified that he believed that he was qualified to evaluate
a candidate’s qualifications for an information technology (“IT”) position, but he stated, “I don’t
know what you go through a master’s in IT for . . . I don’t know what the training is.” Hankins
Dep., Docket No. 67, Ex. A, at p. 4 of 6. He also testified that he could not determine whether
one candidate for a position is “clearly better qualified” than another based on education. Id.
Defendant de Weerdt also provided conflicting statements about the relevance of King’s
De Weerdt testified that he “did not look at the education” when
comparing King and Donald. De Weerdt Dep., Docket No. 64, Ex. F, at 39. In his deposition,
he testified that he was not concerned with whether King held a “piece of paper”–a degree–in
information systems, id. at 40, and he did not consider education at all. Id. at 39.7 The record
indicates, however, that at another point, de Weerdt contended that he considered the candidates’
education. A UMMC HR manager documented a communication with de Weerdt in which she
states: “I met with hiring manager Henk de Weerdt, on June 25, 2010 to discuss the
selection process for each requisition that Derrick [King] applied to. Henk stated that he made
his selection based on the education and directly related experience needed for the position.”
Correspondence from Beverly Washington, Docket No. 64, Ex. J (emphasis added).
evidence of a changing story raises an issue of fact as to the basis of Defendants’ decision. See
Gee v. Principi, 289 F.3d 342, 34-48 (5th Cir. 2002) (an employer’s inconsistent explanations for
De Weerdt testified as follows:
A: I did not look at educational experience, because my gut feeling that I’ve –
with many people I’ve interviewed in terms of studying information systems,
even a master’s degree, that it is, in a general sense, is strategic, it’s not
Q: I think what you told me is you just didn’t look at that criteria at all.
A: No. . . . I’m saying, for me, I did not look if he had a piece of paper because,
again, the status between wherever you got your degree – I mean, if you had a
master’s degree from MIT or whatever, or Stanford, maybe I would have looked
at it differently.
De Weerdt Dep., Docket No. 64, Ex. F, at 39-40.
its employment decisions at different times permits a jury to infer that the employer’s proffered
reasons are pretextual); Nasti v. CIBA Specialty Chem. Corp., 492 F.3d 589, 594 (5th Cir. 2007)
(court may infer pretext where defendant has provided inconsistent or conflicting explanations
for its conduct); Dandridge v. Chromcraft Corp., 914 F. Supp. 1396, 1403 (N.D. Miss. 1996)
(“The ‘change of story’ evidence alone is certainly enough to create a question of fact as to the
credibility of the defendant’s proffered reason.”).
To the extent that certifications constitute education, the record indicates that King held
at least three IT-related certifications at the time of application for the position, while Donald
held none.8 Once left to evaluate how defendants weighed or even considered King’s education,
a jury may view with jaundiced eyes the other reasons proffered by defendants and conclude that
they too are merely pretextual reasons.
b. Lack of Windows Experience
The parties agree that both Donald and King have experience in multiple operating
systems. The dispute relates specifically to experience with Windows-based systems. The
Defendants have presented evidence that, in 2010, UMMC was undergoing a transition to only
using Windows-based programs and that it was critical that they have someone with Windows
experience. See de Weerdt Dep., Docket No. 61, Ex. A, at 28.9 Defendants argue that King did
not have the necessary experience with Windows that the Supervisor position required. In their
See King Job Application, Docket No. 61, Ex. L; Plaintiff’s Certifications, Docket No. 64, Ex. I (Cisco
CCENT (career certification); Novell CNA (administrator certification); CompTIA A+). A certification for ITIL
entered into the record indicates that he passed the required course July 2010, after he had applied for the position in
February 2010. Unquestionably, the certifications represent proof of some additional training/education that King
had received. Cf. Donald Job Application, Docket No. 64, Ex. N, at p. 2 of 5 (no certifications listed).
De Weerdt testified that, during the process of hiring for the Supervisor position, UMMC was
transitioning from Novell to Microsoft. The central IT department was “way ahead than the departments” and “[t]he
departments were all still Novell.” Id. De Weerdt implies that most of the staff who had only worked in the
departments at UMMC, but not in central IT or had other training, were familiar with Novell, but not with Windows.
Id. (“The departments were all still Novell. They have not been converted. They have not been exposed at all.”)
This testimony suggests that de Weerdt may have believed that King might not have sufficient Windows experience
based on the fact that he was applying for a position from an IT department outside central IT at UMMC.
opening brief, they state: “Russ Donald received the supervisor of client services position due to
his experience with Microsoft and his supervisory experience, both of which King did not
have.” Docket No. 62, at 11 (emphasis added). The record, however, indicates that this
requirement for the position is in doubt. Nowhere in the job posting summary does it indicate
that a candidate for the position must or even should have experience with Microsoft or
Windows10 operating systems.
See Job Posting, Docket No. 61, Ex. J, at p. 1. (detailing
“Position Summary”); Pl.’s Ex. 12, at p. 3 of 7 (detailing “Special Knowledge, Skills &
Abilities” for the position”). To the contrary, it describes technical skills and the ability to
ensure server accessibility “across multiple platforms” and processes. Id. (emphasis added).
King’s certifications in at least three other operating systems at the time of his interview suggest
that he could have met this requirement.
Aside from that point, however, Defendants argue that Donald was chosen because he
“had extensive experience in Windows based applications” and that Plaintiff did not indicate that
he had Windows experience at the time he applied for the position. Defs.’ Reply to Response to
MSJ, Docket No. 67, at 2-3. Despite the Defendants’ contention, the record includes ample
evidence that King did in fact have Windows experience that the interview panel knew or should
have known about. King’s job application indicates that he had “install[ed] and configured
Windows 2003 [and] Windows 2008 Servers” in his position as systems analyst at UMMC;
“install[ed] and configure[d]. . . Windows servers” as network administrator in the Pontotoc City
School District; and “install[ed], configure[d], and manage[d] Windows LANs for area small
businesses and churches” as a technical specialist at ComPuTech. Docket No. 61, Ex. L.
The parties have referred to “Microsoft” and “Windows” interchangeably. See, e.g., Def. MSJ, Docket
No. 62, at 10 (quoting Burns Deposition wherein Burns refers to King’s lack of “Windows” experience and
Defendants’ argument that King lacked “Microsoft” experience). Therefore, the Court will equate the terms to refer
to the same system or entity.
The Defendants have presented testimony from Burns and de Weerdt that they asked
King about his Windows experience in the interview and that he stated that he did not have
any.11 King, however, denies this contention and declares that he told them that he had Windows
Essentially, not only did King’s application show that he had Windows
experience, according to King, he specifically told the interviewers of his Windows experience.
In light of this evidence, a jury would be left with the obligation of testing the Defendants’
assertions that King had “no” Windows experience and the assertion that Donald has more
experience with Windows than King.
The record evidence raises questions about the credibility of the Defendants’ proffered,
non-discriminatory reason and whether it amounts to a pretext for discrimination. And it is those
kinds of credibility determinations which rest within the province of a jury. See Anderson, 477
U.S. at 255; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000).
c. Lack of Supervisory Experience
The Defendants’ other proffered reason is that Plaintiff did not have any supervisory
experience. Burns, the hiring manager for the Supervisor position, submitted an affidavit stating
that “[e]ach applicants [sic] supervisory experience was important,” along with their “technical
skills.” Burns Aff., Docket No. 61, Ex. F. The Defendants argue that, while King did not have
any supervisory experience, Donald had significant experiences.
According to the record,
Burns testified that, in addition to not having any supervisory experience, King “had no Windows
experience. It was all UNIX [another operating system], from what we had [on the application] and what he told
us.” Docket No. 61, Ex. E, at 21. De Weerdt recalled asking King questions about his technical experience in the
interview: “[King] said, I never worked with Windows Clustering. I asked him, and I said, ‘Another thing this
group do is Active Directory. Have you worked with Active Directory?’ He said, ‘I’ve never worked with Active
Directory.’” De Weerdt Dep., Docket No. 61, Ex. A., at 29. Based on the Defendants’ opening brief, it appears that
Active Directory is a Windows program. The brief provides a chart of “Microsoft Experience” that they argue that
Donald had and “Active Directory Integration” is listed among other programs. Def. Memo. to MSJ, Docket No.
62, at 11.
In his deposition, King testified: “They asked me a series of questions about my skills, what did I know.
If I knew the Windows side of networking, which I replied to them, yes.” Docket No. 64, Ex. A, at 29 (emphasis
Donald worked at BankPlus before starting his position at UMMC as a system administrator
intermediate in April 2005. See Donald Job Application, Docket No. 61, Ex. N, at 3. Donald
testified that, while at BankPlus, he was “put as lead over the second tier support or production
support and the mainframe. My duties included managing all of the system and the people that
managed those systems for the bank . . .” Donald Dep., Docket No. 61, at 16. He also indicated
that he supervised four employees when he supervised the production support group. Id. at 17.
According to the Defendants, Donald served as “team lead for the application packaging and
deployment team in client server operations” in his role at UMMC. Defs.’Reply, Docket No. 67,
at 5. Donald testified that, in that role, “I had four people under me, and my job was to manage
the daily operations and how those people maintained all of the application delivery for
University Hospital.” Donald Dep., at 16.13
The record also indicates that King listed supervisory experience on his application. On
his application, King indicated that he had “managerial skills” which included “supervision of
technicians” and “project management.” Docket No. 61, Ex. L, at 2 of 7. He indicated that, in
his position as technology coordinator/network administration in the Choctaw County Public
Schools, he was a “manager of technicians.” Id. at 4 of 7. Defendant de Weerdt testified that he
recalled asking King about his supervisory experience: “I said, ‘Have you ever managed any
people?’ And he said there was -- I think the group, team group was five or six. I said, ‘Have
you ever managed a team of five or six?’ And he said no, he never did.” De Weerdt Dep.,
Docket No. 61, Ex. A, at 29.14
Plaintiff argues that the extent of Donald’s management experience is that Donald was “over a work
crew with a landscaping company in high school, was the manager of a diner in college and was a lead person at
BankPlus.” Pl.’s Response to MSJ, Docket No. 65, at 4 (citing Donald Dep., at 15). It may be within the province
of the jury to determine which experience is most relevant or to weigh this evidence.
It should be noted that King’s answer to the first part of de Weerdt’s question is unclear, in that de
Weerdt did not indicate whether King gave a “yes” or “no” answer to his question about having managed “any
Moreover, based on the job posting summary, it is also doubtful whether significant
supervisory experience was as essential for the position as the Defendants now suggest,
particularly in light of the defendants having ignored other objective criteria (e.g., education).
Indeed, the position is entitled “Supervisor of Client Service Operations,” but the posting
mentions very few specific supervisor-related skills expected from an ideal applicant. Under the
list of “special knowledge, skills & abilities” for the position, there are at least eleven
Only four of them describe non-technical skills: 1) “verbal and written
communication skills;” 2) “interpersonal, leadership, project management, and customer service
skills”; 3) “ability to convey technical information to non-technical personnel”; and, listed last,
4) the “ability to train, supervise and motivate employees.” Job Posting, Pl.’s Ex. 12 (emphasis
added). Indeed, only two of these competencies discuss leading and supervising other technical
personnel. This difference between the job posting, which does not emphasize supervisory
skills, and the level of emphasis that the interview panel now contends they placed on that aspect
of the position should be tested before a jury in light of the similar experience supervisory
experience between Donald and King.
The record presents a close call. The Court recognizes that Donald had some strengths
and King had others. However, the inconsistencies in the record evidence raise credibility
concerns, which are strictly for a jury to determine. In the present case, when “factual and legal
issues present close calls under Rule 56. . . . [I]t is more prudent to carry the close issues forward
and deny summary judgment.” Harris v. Bruister, No. 4:10cv77-DPJ-FKB, 2013 WL 6805155,
people.” In addition, Donald provided two instances in which he had managed four people (at BankPlus and at
UMMC), but de Weerdt recalls asking King if he had ever managed “five or six” people, and King responded in the
negative. The record does not indicate whether the same questions were asked of Donald. At least on these facts,
neither Donald nor King provided evidence that they had managed “five or six” people in an IT capacity, so they
may be similarly situated in this respect. But, to say that King had no supervisory experience does not match the
record wherein his application and statements he claims to have made to de Weerdt detail his supervisory
at *2 (S.D. Miss. Dec. 20, 2013). See also Haire v. United States, 101 F. Supp. 2d 478, 485
(N.D. Miss. 2000) (where court found that plaintiff “only just barely” met her burden of
establishing pretext, plaintiff was “entitled to present [the] claim to a jury.”).
The plaintiff must still produce evidence that his race was a “determinative influence” in
the Defendants’ decision not to select him. “The plaintiff is left with the ultimate burden, which
has never left him: that of proving that the defendant intentionally discriminated against him.”
Moham v. Steego Corp., 3 F.3d 873, 875 (5th Cir. 1993). He, however, is free to make this
showing by pointing to enough evidence to permit the jury to reasonably disbelieve defendants’
proffered reasons. Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1291 (11th Cir. 1998) (citing
Combs v. Plantation Patterns, 106 F.3d 1519, 1537-38 (11th Cir. 1997)). In other words, here
the “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its actions” could lead a jury to find them unworthy
of credence. Jackson v. State of Alabama State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir.
2005) (citations omitted). Cf. Nasti, 492 F.3d at 594 (“[T]he trier of fact can reasonably infer
from the falsity of the explanation that the employer is dissembling to cover up a discriminatory
purpose. Such an inference is consistent with the general principle of evidence law that the
factfinder is entitled to consider a party’s dishonesty about a material fact as ‘affirmative
evidence of guilt.’”) (citation omitted).
The Court, in view of all the evidence, believes the Plaintiff has cast sufficient doubt on
the Defendants’ nondiscriminatory reasons sufficient to allow a jury to determine that the
Defendants’ proffered legitimate reasons were not what actually motivated their conduct, Staten
v. New Palace Casino, LLC., 187 F. App’x 350, 359 (5th Cir. 2006), and ultimately a jury may
find that King was discriminated against based on his race. The Court finds that the Defendants’
proffered reasons create a genuine issue of material fact to be considered by a jury to determine
whether the non-discriminatory explanation is a pretext for discrimination. The defendants are
not entitled to a judgment as a matter of law, the motion for summary judgment is denied, and in
the exercise of its discretion, the Court finds that this issue shall be tried to a jury. Firman, 684
F.3d at 538.
B. Retaliation Claim
After Plaintiff did not receive the Supervisor position, he filed an EEOC charge. See
Docket No. 20, Ex. A. Plaintiff alleged that he had “been repeatedly denied promotions, and
these promotions ha[d] been given to white males.” He further stated, “I do not see any nonrace-based reason for these denials of promotions” and specifically referenced the hiring of a
white male for the Supervisor position as well as denials for three other promotions. Id. Plaintiff
argues that the Defendants knew that he had filed this charge when he applied and was
interviewed for the open positions after the reduction in force (“RIF”) was announced.
Under the “anti-retaliation” provision in Title VII:
“It shall be an unlawful employment practice for an employer to discriminate
against any of his employees … because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.”
42 U.S.C. § 2000e-3. To establish a prima facie case of retaliation, the plaintiff must
show that: (1) he participated in activity protected by Title VII; (2) his employer took an
adverse employment action against him; and (3) a causal connection exists between the
protected activity and the adverse employment action. McCoy v. City of Shreveport, 492
F.3d 551, 556-557 (5th Cir. 2007). It is undisputed that the filing of an EEOC charge
constitutes protected activity and that Plaintiff was not selected for the positions for
which he had applied. The issue in dispute is whether Plaintiff has established a causal
connection between the protected activity and the adverse action.
The timeline of events in this case is illuminating on this issue. In either February
or March 2010, Plaintiff interviewed for the Supervisor position. In March 2010, the
position was given to Donald. According to the amended complaint, Plaintiff filed his
EEOC charge on June 11, 2010. Docket No. 20, at ¶ 9. The EEOC received the charge
on June 17, 2010. Id., Ex. A. On June 17, UMMC also published its “Reduction in
Force Business Plan,” which eliminated several positions, including Plaintiff’s position as
systems analyst. RIF Plan, Docket No. 61, Ex. B. The EEOC gave Defendants notice of
his claim of race discrimination on June 21, 2010. Id., Ex. C. After the RIF was
announced on June 17 and while the EEOC was investigating Plaintiff’s race
discrimination claim, Plaintiff states that he applied for eight open positions. Plaintiff
stated that he was interviewed for two positions for which he had applied, but UMMC did
not offer him either. On August 19, 2010, Plaintiff was terminated.
Defendants argue that Plaintiff conceded in his deposition that “he is not suing
due to his not receiving any” of the seven positions for which he had applied on or after
June 17th. However, Plaintiff only stated that he is not arguing that he did not receive the
other positions “because of race.”15 In this suit, Plaintiff has argued that he did not
“Q: On June 17th, you filed six applications.
A: Uh-huh (yes)
Q: And then the 18th, you filed an additional one, which was the systems administrator-senior. Are you
alleging that any of those six that you filed on June 18th, that you didn’t get because of race?”
See King Dep., Docket No. 61, Ex. I, at 45 (emphasis added).
Q: Is your intent in the lawsuit to file on the fact that you didn’t get the promotion to the supervisor
client/services and the termination?
Q: Okay. Any of these others?
receive the positions for which he had applied after the RIF because of retaliation, not
because of race.16 Thus, this claim is preserved and the Court will address it.
As an initial matter, it is important to be clear that, from the pleadings and briefs,
Plaintiff is not alleging that he did not receive the Supervisor position because of
retaliation for filing an EEOC charge. He interviewed for the position in February or
March 2010, and he did not file an EEOC charge until June 2010. Therefore, Defendants
could not have denied him the Supervisor position for engaging in activity he had not yet
done. As for the other eight positions for which Plaintiff applied after the RIF was
announced and he filed the EEOC charge, Plaintiff has failed to prove that he was not
selected for any of these positions due to retaliation.
To establish a prima facie case of retaliation under Title VII, a plaintiff must show
that (1) he participated in an activity protected under the statute; (2) his employer took an
adverse employment action against him; and (3) a causal connection exists between the
protected activity and the adverse action. McCoy v. City of Shreveport, 492 F.3d 551,
556–57 (5th Cir. 2007). However, if a defendant brings forward a legitimate, nondiscriminatory reason for the adverse employment action, the burden shifts back to the
plaintiff to produce sufficient evidence to show a reasonable trier of fact that the reason
was the pretext for the employment action. McDonnell Douglas, 411 U.S. at 804; see
See id. at 39. Plaintiff applied for six open positions on June 17, 2010, the day the RIF was announced. He applied
for an additional position on June 18 and one on June 29, making a total of eight positions applied for after the RIF
was announced. See King’s Application History, Docket No. 61, Ex. G. Defendants did not ask about the eighth
position, but Plaintiff has not indicated on rebuttal that he is pursuing that claim in any specific way. At any rate,
the analysis herein applies to all of the positions for which Plaintiff applied on or after June 17.
See Second Am. Compl., Docket No. 20, ¶ 11 (“Had it not been for race discrimination and retaliation
against Plaintiff, he would have been promoted to a higher position within the Technology Department and would
not have been terminated from his employment.”) (emphasis added); see also id. at ¶¶ 14, 16 (pleading retaliation
claims against de Weerdt and UMMC for filing EEOC charge).
also Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). The Supreme
Court has ruled that “Title VII retaliation claims must be proved according to traditional
principles of but-for causation, not the lessened causation test stated in § 2000e–2(m).17
This requires proof that the unlawful retaliation would not have occurred in the absence
of the alleged wrongful action or actions of the employer.” Univ. of Texas Sw. Med. Ctr.
v. Nassar, 133 S. Ct. 2517, 2533 (2013).
It is uncontested that King established the first two elements of his prima facie
case. He participated in a protected activity when he filed complaints with the EEOC, and
his non-selection for the positions for which he applied constitutes an adverse action.
The question before this Court is whether there is any evidence of the third element, a
causal connection between the activity and the adverse action.
A plaintiff alleging retaliation may satisfy the causal connection element by
showing “[c]lose timing between an employee’s protected activity and an adverse action
against him.” Feist v. La. Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450, 454
(5th Cir. 2013). The Fifth Circuit has generally found “a time lapse of up to four
months” may be sufficiently close. Evans v. Houston, 246 F.3d 344, 354 (5th Cir. 2001).
In this case, Defendants have admitted that they knew that King had filed an EEOC
charge when he applied for or was interviewed for the open positions after the RIF was
announced. King’s employment at UMMC ended sixty-three days after King filed his
EEOC charge. Plaintiff argues that this temporal proximity is enough for a jury to infer
causation. Despite King’s argument, “neither the presence nor the absence of temporal
proximity is outcome-determinative in a Title VII retaliation claim.”
42 U.S.C. § 2000e-2(m) (“[A]n unlawful employment practice is established when the complaining party
demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice,
even though other factors also motivated the practice.”) (emphasis added).
Sailormen, Inc., No. 3:10cv606-CWR-LRA, at *3 (S.D. Miss. Feb. 28, 2012) (citations
As for providing other reasons besides temporal proximity and UMMC’s
knowledge of his charge, Plaintiff has not provided any information about the
circumstances surrounding the denial of the eight positions.
He has provided no
information about the qualifications required for the positions, the persons selecting
applicants for the positions, his interviews or whether the qualifications of the other
applicants were equal to his own or lesser–all of which he provided in litigating his claim
of race discrimination for the Supervisor position.
He only argues that he applied for the jobs, he did not receive any of them, and it
must be a result of retaliation. “This assertion is an ipse dixit and nothing more.” Diaz v.
N.Y.C. Bd. of Elections, 335 F. Supp. 2d 364, 367 (E. D. N.Y. 2004). See also Douglas v.
Cnty. of Tompkins, No. 90-CV-841, 1995 WL 105993, at *13 (N.D.N.Y. 1995)
(“Plaintiffs’ response can best be summarized by the phrase ipse dixit; in other words,
discrimination has been shown here because he says it has.”). To flesh out his claim, he
must demonstrate that the selecting individuals specifically knew about the EEOC
charge. See Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir. 2001)
(requiring that plaintiff establish that the specific employee who terminated her knew
about the protected activity to establish a causal link); Manning v. Chevron Chem. Co.,
LLC, 332 F.3d 874, 884 (5th Cir. 2003) (requiring proof that “decisionmakers” for the
employer knew about the protected activity). Plaintiff must also prove that “but for” the
filing of his charge, he would have been offered any of these positions. See Nassar, 133
S. Ct. at 2533. “Absent any supporting evidence, the plaintiff’s unsupported ipse dixit
does not create a triable issue of fact.” Clarke v. Wash. Metro. Area Transit Auth., 904 F.
Supp. 2d 11, 17 (D.D.C. 2012). Plaintiff has failed to establish a prima facie case of
retaliation, and Defendants are entitled to summary judgment on this claim.
II. Claims Against de Weerdt
A. Section 1981 Claims
Plaintiff has alleged that de Weerdt is liable for race discrimination and retaliation against
him for filing an EEOC charge in violation of 42 U.S.C. § 1981. Defendants have argued that de
Weerdt is entitled to qualified immunity.
Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed
by white citizens.” 42 U.S.C. § 1981(a). Section 1981’s protections against race discrimination
“include the making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42
U.S.C. § 1981(b). Liability under Section 1981 liability “will lie against an individual defendant
if that individual is essentially the same as the State for the purposes of the complained-of
conduct.” Foley v. Univ. of Hous. Sys., 355 F.3d 333, 337 (5th Cir. 2003) (quotation marks
omitted). In addressing the claim of a public official to qualified immunity, courts engage in a
two-step analysis. First, the Court must determine whether the plaintiff has made a sufficient
showing that the official violated a clearly established constitutional or statutory right. If the
answer is in the affirmative, the Court then considers whether the official’s actions were
objectively reasonable in light of the clearly established right. Id. (citing Siegert v. Gilley, 500
U.S. 226 (1991)).
Individuals may be held liable for violations of 42 U.S.C. § 1981. Grant v. Lone Star
Co., 21 F.3d 649, 653 (5th Cir. 1994). Whereas Title VII of the Civil Rights Act of 1964, as
amended in 1991, prohibits discrimination by “employers,” Section 1981 proscribes conduct by
persons in general.
It is well settled that King has “a clearly established right to be free from racial
discrimination in employment.” Jackson v. Houston Independent School District, 189 F.3d 467,
*7 (5th Cir.1999). Thus, “the first prong of the test presents no hurdle.” Patton v. Hinds Cnty.
Juvenile Det. Ctr. (Henley-Young), 3:10-CV-00138-CWR, 2011 WL 2912897 (S.D. Miss. July
18, 2011). Likewise, workplace discrimination on the basis of race is a course of conduct that is
not “objectively reasonable under clearly established law.” Blackwell v. Laque, 275 Fed. Appx.
363, 367–68 (5th Cir. 2008). Therefore, qualified immunity on its own does not bar King’s claim
against de Weerdt. See Hampton Co. Nat’l Sur., LLC v. Tunica Cnty., Miss., 543 F.3d 221, 229
(5th Cir.2008) (“There is no qualified immunity for racial discrimination as such discrimination
is clearly unconstitutional.”).
In order to avoid summary judgment, Section 1981 also requires that Plaintiff provide
evidence that de Weerdt was personally involved in intentional discrimination against him. Nat’l
Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 714 (5th Cir. 1994)
(emphasis added). “Personal involvement” includes personal direction of, authorization of, or
participation in discriminatory conduct.” Jackson v. Bayou Indus., Inc., No. 94-946, 1995 WL
133332, at *2 (E.D. La. Mar. 27, 1995) (citation omitted); Wade v. Miss. Co-op. Extension Serv.,
424 F. Supp. 1242, 1259 (N.D. Miss. 1976) (finding that essential elements of personal
involvement and responsibility for actions complained of is necessary to subject defendants to
In this case, Plaintiff has argued that de Weerdt was the “decision-maker as to the
promotion and King’s retention by UMMC.” Docket No. 65, at 18. The record suggests a game
of hot potato on this issue. De Weerdt testified that James Burns was the decision maker for the
Supervisor position; Burns recommended that Russell Donald be offered the position and he
agreed.18 Burns, however, testified that all three members of the interview panel, including de
Weerdt and Chris Hankins, agreed that Russell Donald was the better candidate, and that Burns
did not recommend Donald first.19 Despite these different accounts, the job posting clearly states
that Burns was the hiring manager. Docket No. 61, Ex. J, at 2. Neither of these statements
indicates that de Weerdt was the sole decision-maker, but he obviously was involved. Just how
much influence he had over King’s non-selection is something the jury will have to consider and
ultimately the jury may find that de Weerdt is individually liable. See Pettis v. Nottoway Cnty.
Sch. Bd., No. 3:12cv864-HEH, 2013 WL 3063704, at *7 (E.D. Va. June 17, 2013) (“Allegations
that the individual defendants were one of the decision-makers or centrally involved in the
decision-making is enough to sustain a claim against an individual under § 1981”).
There is no disagreement that there were three people on the interview panel, and that all
three people had a role in that they all participated in the interview and agreed to select one
person to receive the position. The Plaintiff must convince the jury that de Weerdt’s role was
unique and that he may have unduly influenced the process and therefore is individually liable.
See de Weerdt Dep., Docket No. 67, Ex. C, at 33 (agreeing that “[a]fter the round of interviews, the
manager James Burns . . . recommends -- he thinks we should offer the job to Russ Donald, to which you and Mr.
“Q: It wasn’t a situation, was it, Mr. Burns, where you said ‘I want to hire this person, not Mr. King,’ and
everyone simply agreed with you?
Q: You didn’t make a recommendation before there was a consensus reached?
A: No. I never do that. In fact, if I’m conducting the interview, it’s always my opinion is last because I
don’t want anyone else to – just because it was my idea. . . . So I always ask their input first, before I say
Burns Dep., Docket No. 64, Ex. K at 26.
Accordingly, the Court denies summary judgment as to de Weerdt’s claim of qualified
B. Intentional Interference with Employment
Plaintiff has argued that Defendant Henk de Weerdt interfered with his application for a
promotion to the Supervisor position. He argues that de Weerdt was the decision maker for the
promotion and whether King would be retained by UMMC and that he “prevented him from
securing any other employment because of his race rather than any legitimate reason.”
Under Mississippi law, the elements of tortious interference with an employment contract
are as follows:
1) the acts were intentional and willful;
2) that they were calculated to cause damages to the plaintiff in his lawful
3) that they were done with the unlawful purpose of causing damage and loss,
without right or justifiable cause on the part of the defendant; and
4) that actual loss occurred.
Levens v. Campbell, 733 So.2d 753, 760-61 (Miss. 1999). “[T]he plaintiff must prove that the
contract would have been performed but for the alleged interference.” Par Indus., Inc. v. Target
Container Co., 708 So.2d 44, 48 (Miss. 1998); Grice v. FedEx Ground Package Sys., Inc., 925
So.2d 907, 910 (Miss. Ct. App. 2006). “Further, [this] tort only arises if there is interference
with the contract between plaintiff and some third party.” Grice, 925 So.2d at 910 (quoting
Nichols v. Tri–State Brick and Tile Co., Inc., 608 So.2d 324, 328 (Miss. 1992) (internal quotation
The law also provides a qualified privilege to employees acting within the scope of their
employment. “[O]ne occupying a position of responsibility on behalf of another is privileged,
within the scope of that responsibility and absent bad faith, to interfere with his principal’s
contractual relationship with a third person.” Morrison v. Miss. Enter. For Tech., Inc., 798 So.
2d 567, 574 (Miss. Ct. App. 2001) (quoting Shaw v. Burchfield, 481 So.2d 247, 255 (Miss. 1985)
(emphasis added). It is not necessary for direct evidence to exist, such as an admission by the
Defendant that he acted in bad faith. Morrison, 798 So.2d at 575. Instead, such a conclusion
generally arises as an inference from other evidence. Id. The conclusion, though, must be that the
actor was malicious or recklessly disregarding the rights of the person injured. Id.
Similar to the discussion above, all parties agree that de Weerdt was involved in King’s
non-selection for the Supervisor position. The record reveals inconsistencies about the nature
and extent of de Weerdt’s involvement, including whether he was the decision maker for King’s
promotion and retention by UMMC, and whether his reasons for failure to promote King are
legitimate or pretextual. The Court concludes that the record does not support a conclusion as a
matter of law that Defendant de Weerdt did not act in bad faith in not selecting King for the
Supervisor position. The burden rests on King to demonstrate to a jury that de Weerdt acted
intentionally and with malice to interfere with King’s employment relationship. As a result, the
Court also denies summary judgment on Plaintiff’s state law claim of intentional interference
with an employment contract.
For the reasons above, the motion is DENIED IN PART, as Plaintiff has raised a genuine
issue of material fact as to whether race was a motivating factor for the denial of the Supervisor
of Client Service Operations position by Defendant UMMC. The motion is also DENIED IN
PART as to Plaintiff’s claims against Defendant Henk de Weerdt in his individual capacity,
namely the claim of race discrimination under 42 U.S.C. § 1981 and the state law claim of
intention interference with an employment contract.
The motion is GRANTED as to Plaintiff’s retaliation claim in violation of Title VII.
SO ORDERED, this the 27th day of March, 2014.
s/Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
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