Gathings v. MS Dept Rehab Svc ( 2023 )

Case: 22-60405 Document: 00516664224 Page: 1 Date Filed: 03/02/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
March 2, 2023
No. 22-60405 Lyle W. Cayce
Summary Calendar Clerk
Shondra Gathings,
Plaintiff—Appellant,
versus
Mississippi Department of Rehabilitation Services,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:21-cv-709
Before Clement, Willett, and Wilson, Circuit Judges.
Per Curiam:*
Shondra Gathings alleges that her employer, the Mississippi
Department of Rehabilitation Services, discriminated against her by not
appointing her as its Director of Client Services. The district court granted
summary judgment because Gathings failed to demonstrate a prima facie case
in which she suffered from racial discrimination. We AFFIRM.
*This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60405 Document: 00516664224 Page: 2 Date Filed: 03/02/2023
No. 22-60405
I
The Department hired Gathings, an African American woman, in
2008. Over the years, she has earned multiple promotions and earned a
master’s degree. When Gathings resigned from the Department in 2021, she
served as a District Manager. Gathings demonstrated interest in further
promotions, applying, but being rejected for, a Regional Director position
multiple times.
In July 2019, Kevin Bishop was promoted to Deputy Administrator
over Workforce Programs, leaving a vacancy in his prior role, Director of
Client Services. Bishop recommended Carol Elrod—Gathings’ white
comparator in this litigation—for his old job. Elrod subsequently received her
promotion to Director of Client Services. Of note, the Director of Client
Services is an appointed government official, not a member of the state civil
service. This classification means that the opening was non-competitive and
did not require public posting, as is usually the case for government
employment under Mississippi’s job advertising requirements. See Miss.
Code Ann. § 25-9-107(c)(xvi).
Gathings filed a complaint with the EEOC, claiming that the
Department did not promote her to the Director of Client Services position
because of her race. The U.S. Department of Justice issued a right-to-sue
letter, and Appellant filed suit with a coworker in federal court seeking relief
under several race discrimination theories. The district court first dismissed
all the claims unrelated to Elrod’s promotion to the Director of Client
Services role. Then, after discovery, it granted the Department’s motion for
summary judgment. In its order, the district court concluded that Gathings
could not sustain a claim under 42 U.S.C. § 1981 against a state government
agency, that she failed to establish a prima facie case that she was the victim
of racial discrimination, or that, in the alternative, Gathings was unable to
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show that the Department’s stated reasons for why it did not promote her
were pretextual. On appeal, Gathings abandons her § 1981 claim and the
claims the district court dismissed in its order granting the motion to dismiss,
limiting her challenge to the conclusion that she has failed to demonstrate a
prima facie case and that any reasons for the alleged discrimination were
pretextual.
II
We review the district court’s grant of summary judgment de novo,
applying the same standard used by the district court. Nickell v. Beau View of
Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). Summary judgment is
proper when “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
We view the evidence and draw all inferences in a light most favorable to the
nonmovant; however, “[u]nsubstantiated assertions, improbable inferences,
and unsupported speculation are not sufficient to defeat a motion for
summary judgment.” Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir.
2003).
III
In suits under Title VII alleging an employer’s failure to hire or
promote, a plaintiff must demonstrate a prima facie case by offering evidence
that she: (1) is a member of a protected class; (2) was qualified and applied
for a position; (3) was rejected; and (4) was passed over by the employer so
it could promote, hire, or continue to seek a person of a non-protected class.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Burrell v. Dr.
Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 412 (5th Cir. 2007).
The requirement that an employee must apply for the position
at issue is interpreted to accommodate various situations. For
instance, an employee does not need to apply to establish a
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prima facie case when the position was not publicized. Instead,
the employee must show that the company had a duty or reason
to consider her for the position.
Johnson v. Louisiana, 351 F.3d 616, 622 (5th Cir. 2003).
It is undisputed that the Director of Client Services position was not
advertised. Thus, Gathings needs only show that the Department had a
reason or duty to consider her for that role. The district court found that
Gathings had failed to provide evidence that such reasons or duties existed.
Specifically, the court pointed to the absence of any communication between
Gathings and the Department about her interest in the job. It also found that
she had not shown any reason she should have expected to be considered for
the director role.
Gathings argues that the Department concealed the job opening from
her by failing to advertise the job, that she was exceptionally well qualified for
the role, and that, regardless, she could not have communicated interest in a
position she did not know was available at the time. These arguments are
correct insofar as they go. However, we agree with the district court that the
Department’s failure to seek candidates for an appointed, policymaking, non-
competitive, non-civil service position is not a reason it had to consider her
as a candidate. Ultimately, the only evidence Gathings can point to is that she
did not get considered to be an appointed government official. This alone
does not suggest any form of racial discrimination.
IV
Gathings has failed to demonstrate a prima facie case that she is the
victim of racial discrimination. Therefore, we need not address whether the
state’s explanations for its actions were a pretext for discrimination. We
AFFIRM.
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