Stewart v. State of Mississippi Divislion of Medicaid
Memorandum Opinion and Order denying 26 MOTION to Strike; denying 20 MOTION for Summary Judgment. Signed by District Judge Tom S. Lee on 10/17/14 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
MARILYNN D. STEWART
CIVIL ACTION NO. 3:13CV277TSL-JCG
STATE OF MISSISSIPPI
DIVISION OF MEDICAID
MEMORANDUM OPINION AND ORDER
Plaintiff Marilyn Stewart, a former employee of the State of
Mississippi Division of Medicaid, filed the present action under
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.,
contending that during her employment, defendant denied her a
promotion on account of her race.
The case is presently before
the court on a motion by the Division of Medicaid for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil
Defendant has also filed a related motion to strike
Stewart’s affidavit which she submitted in support of her response
to the summary judgment motion.
Both of these motions have been
fully briefed by the parties, and the court, having considered the
memoranda of authorities, together with attachments, submitted by
the parties, concludes that both motions should be denied.
Stewart, who is black, became employed by the Division of
Medicaid in 1988 as a clerk-typist and over the years received a
number of promotions, including Medicaid Auditor I (1990);
Medicaid Auditor II (1992); DP Technical Specialist I (1997);
Associate Business Systems Analyst (1998); Business Systems
Analyst I (2000); and Business Systems Analyst II (2008).
alleges that in February 2012, the Division of Medicaid promoted a
substantially less qualified white employee, Debbie Stuart, to the
position of Senior Business Systems Analyst without even giving
plaintiff an opportunity to apply for the position.
a timely charge of discrimination with the Equal Employment
Opportunity Commission (EEOC), and brought the present action
following the EEOC’s issuance of a notice of right to sue.
In evaluating cases of discrimination based on circumstantial
evidence, the court applies the McDonnell Douglas burden-shifting
Davis v. Dallas Area Rapid Transit, 383 F.3d 309,
316–17 (5th Cir. 2004) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973)).
Under the McDonnell Douglas framework, “[a] plaintiff relying on
circumstantial evidence must put forth a prima facie case, at
which point the burden shifts to the employer to provide a
legitimate, non-discriminatory reason for the employment
Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th
Cir. 2007) (citations omitted); Davis, 383 F.3d 309, 316–17.
the employer provides a legitimate, non-discriminatory reason for
the employment decision, the plaintiff must submit evidence
showing that the employer's stated reason was merely pretextual.
Davis, 383 F.3d at 317 (citations omitted).
To establish a prima
facie case of race discrimination based on a failure to promote,
the plaintiff must demonstrate: (1) that she is a member of a
protected class; (2) that she sought and was qualified for the
position; (3) that she was not promoted; and (4) that the position
was filled by someone outside the protected class.
Oktibbeha County, Miss., 246 F.3d 458, 468 (5th Cir. 2001)
Defendant contends that Stewart cannot establish a prima
facie case since it is undisputed that she did not apply for the
position at issue, making summary judgment appropriate.
argues in response that she is not required to prove that she
applied for the position when the evidence shows that she was not
given the opportunity to apply for the position.
Circuit has observed that “[t]he application requirement is
important to establishing’ the prima facie case ‘because it shows
that the decision-maker knew about the plaintiff and the
plaintiff's interest in the position.’”
Everett v. Mississippi,
106 Fed. App’x 264, 266 (5th Cir. 2004).
In Everett, the court
where an employer does not publish a vacancy or create a
formal application process, a plaintiff need not prove
that she applied for the position in order to make out a
prima facie case of discrimination. See Bernard v. Gulf
Oil Corp., 841 F.2d 547, 570 (5th Cir. 1988); see also
Dews v. A.B. Dick Co., 231 F.3d 1016, 1021-22 (6th Cir.
2000) (following Carmichael v. Birmingham Saw Works, 738
F.2d 1126, 1132-33 (11th Cir. 1984)). Instead, a
plaintiff may satisfy her prima facie burden by
proffering evidence “that the company had some reason or
duty to consider her for the post.” Jones [v. Flagship
Int'l, 793 F.2d 714, 724 (5th Cir. 1986)]; accord
Johnson v. Louisiana, 351 F.3d 616, 622 (5th Cir. 2003);
Bernard, 841 F.2d at 570 (“It is not legally sufficient
or legitimate for an employer to reject an employee who
does not have notice or an opportunity to apply for a
Everett, 106 Fed. App’x at 266.
As one court has noted, “[t]his
is not a particularly difficult task because ‘when an employer
uses such informal methods (to fill a position) it has a duty to
consider all those who might reasonably be interested, as well as
those who have learned of the job opening and expressed an
Cooper v. Board of Sup'rs of Louisiana State
University and Agr. and Mechanical College, No. Civ. A. 01–1560,
Civ. A. 02–3054, 2004 WL 1274448, at *2 (E.D. La. June 8, 2004)
(parenthetical added) (quoting Carmichael, 738 F.2d at 1133).
“Such informal methods include ‘word of mouth’ and informal review
Here, plaintiff has presented her affidavit in
which she attests that in 2009 or 2010, she informed her
supervisor, Peter Montgomery, that she was interested in being
promoted to Senior Business Systems Analyst.
states, responded that the position had been eliminated.
court’s opinion, this is sufficient to withstand summary judgment
on this issue.1
Defendant has moved to strike portions of Stewart’s
affidavit, including paragraphs 5 and 6, in which she states that
she expressed her interest in the Senior Business Systems Analyst
position to Peter Montgomery, who responded that the position was
Defendant next contends that it is entitled to summary
judgment because Stewart cannot demonstrate that its articulated
legitimate nondiscriminatory reason for the selection of Stuart
for the position was pretextual.
On this point, defendant states
that in connection with a reorganization of the Division of
Medicaid’s structure, Stuart’s then-existing position of Lead
Systems Administrator was reallocated to the position of Senior
Business Systems Analyst.
Defendant has explained the basis for
this decision as follows:
[The] decision to reallocate the positions were not
based on technical experience alone, but also the
concept of behavioral competencies; meaning, that one’s
past performance is the best predicator of future
performance. Ms. Stuart possesses those behavioral
competencies desired to successfully fulfill the
responsibilities of her current position. She has
proven her ability to manage large complex and
multi-tiered projects, manage a budget and a schedule,
manage vendors, manage details and manage executives.
She is invaluable in aptitude, knowledge, and execution
of her current job responsibilities.
Defendant maintains that Stewart has not and cannot prove that
defendant’s articulated reason is false and that defendant
intentionally discriminated against her.
“Pretext can be
established either ‘through evidence of disparate treatment’, or
eliminated. Defendant argues that these portions of Stewart’s
affidavit are “conclusory and subjective, constitute hearsay, and
are without any factual basis to defeat Defendant’s Motion for
Summary Judgment.” The court perceives no valid basis for
defendant’s objection to plaintiff’s sworn statement that she
informed Montgomery of her interest in the position. Neither is
her testimony regarding Montgomery’s response objectionable.
Neither statement is conclusory, subjective or hearsay. The
motion to strike these paragraphs will be denied.
by showing the ‘proffered explanation is false or unworthy of
Allen v. Radio One of Texas II, L.L.C.,
App’x 295, 299 (5th Cir. 2013) (quoting Laxton v. Gap Inc., 333
F.3d 572, 578 (5th Cir. 2003) (internal quotation marks and
“[A] nondiscriminatory explanation is
‘unworthy of credence if it is not the real reason for the adverse
Id. (quoting Laxton, 333 F.3d at 578).
“‘In appropriate circumstances, the trier of fact can reasonably
infer from the falsity of the explanation that the employer is
dissembling to cover up a discriminatory purpose.’” Id. (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120
S. Ct. 2097, 147 L. Ed. 2d 105 (2000)).
In response to defendant’s motion, Stewart has presented the
job description for the position of Senior Business Systems
Analyst, which reflects a high school diploma or GED plus ten
years of directly related experience as minimum qualifications for
She has also submitted her affidavit in which she
states that whereas she met these qualifications, as she had a
high school diploma and fifteen years of directly related
Debbie Stuart was not even minimally qualified for the
job because she did not have the directly related
experience required. Ms. Stuart had no years of
directly related experience as a Business Systems
Analyst because she never performed any of those
Defendant has moved to strike this part of Stewart’s affidavit on
the basis that it contradicts her prior deposition testimony, in
which she testified as follows:
Q: How long has Debbie Stuart been in the Bureau of
A: I’m not sure. She may have been there just as long
as I have or a little bit longer, maybe a year or two
longer than I have.
Q: Do you know her job history with the Division of
A: No, I don’t.
Defendant evidently takes the position that Stewart’s assertion in
her affidavit that Stuart was not minimally qualified for the
position directly contradicts Stewart’s admission in her
deposition that she did not know Stuart’s job history.
As defendant correctly points out, “[i]t is well settled that
this court does not allow a party to defeat a motion for summary
judgment using an affidavit that impeaches, without explanation,
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d
489, 495 (5th Cir. 1996) (citations omitted).
However, in her
response to the motion to strike, Stewart has explained that her
first affidavit does not contradict her deposition testimony.
a supplemental affidavit, Stewart states that the only way to have
directly related experience for the Senior Business Systems
Analyst position would be for an employee to perform the position
of Business Systems Analyst for at least ten (10) years; and she
states that while she does not know Stuart’s entire work history,
she does know that Stuart has never held the position of Business
While defendant decries this as “yet another
dubious affidavit containing manufactured testimony in an effort
to create a fact issue to defeat summary judgment,” in the court’s
view, Stewart’s second affidavit clearly explains the alleged
contradiction in the testimony given in her deposition and first
Accordingly, defendant’s motion to strike will be
denied, as will its motion for summary judgment, given plaintiff’s
evidence of her qualifications for the position as compared to
Stuart, who according to plaintiff’s proof was not even minimally
qualified for the position.
Based on the foregoing, it is ordered that defendant’s motion
for summary judgment is denied.
SO ORDERED this
day of October, 2014.
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
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