Black v. MS Dept of Rehabilitation Svc

Case: 22-60409 Document: 00516808851 Page: 1 Date Filed: 07/05/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
July 5, 2023
No. 22-60409
Lyle W. Cayce
____________
Clerk
Kenisha Black,
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. 3:20-CV-643
______________________________
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam: *
The plaintiff is a black woman who alleges she was discriminated
against on the basis of race when the Mississippi Department of
Rehabilitation Services appointed a white woman to a director position. The
district court found that the plaintiff failed to create a fact issue with respect
to pretext. We agree and AFFIRM.
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60409 Document: 00516808851 Page: 2 Date Filed: 07/05/2023
No. 22-60409
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff-Appellant Kenisha Black began work for the Mississippi
Department of Rehabilitation Services (“MDRS”) in 2004 as a Counselor
II. Black resigned in 2006 but was soon rehired by MDRS as a Counselor III.
In 2013, Black became a Licensed Professional Counselor. In 2015, Black was
promoted to a District Director position.
In 2019, MDRS employee Kevin Bishop held the position of Director
of Client Services. Later that year, Bishop was promoted to be Director of
Workforce Programs, leaving his previous post vacant. Bishop
recommended to MDRS Executive Director, Chris Howard, that Carol
Elrod, a white woman, be appointed to his former position. Howard accepted
the recommendation and appointed Elrod to the position. MDRS did not
otherwise solicit applications for the opening. 1
Subsequently, Black filed a discrimination charge against MDRS with
the Equal Employment Opportunity Commission. She received her Notice
of a Right to Sue, then filed a complaint in federal district court. Black alleged
violations of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964.
MDRS moved for summary judgment.
In June 2022, the district court granted summary judgment for MDRS
on all claims. Relevant here, the court concluded that Black failed to establish
a prima facie case of discrimination. In the alternative, the court found that
Black failed to create a fact issue as to whether MDRS’s non-discriminatory
reason for promoting Elrod was pretextual. Black timely appealed.
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1
The Director of Client Services position is exempt from Mississippi Civil Service
Law. State law authorizes the agency’s Executive Director to appoint the position without
advertising the job opening. See Miss. Code Ann. § 25-9-107(c)(xvi).
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DISCUSSION
We review a district court’s grant of summary judgment de novo.
Nationwide Mut. Ins. Co. v. Baptist, 762 F.3d 447, 449 (5th Cir. 2014).
Summary judgment is proper when “there is no genuine dispute as to any
material fact.” FED. R. CIV. P. 56(a). In reviewing the record, “the court
must draw all reasonable inferences in favor of the nonmoving party, and it
may not make credibility determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). A party cannot
defeat summary judgment with “conclusional allegations, unsupported
assertions, or presentation of only a scintilla of evidence.” McFaul v.
Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012). Instead, “the nonmovant must
go beyond the pleadings and designate specific facts” that prove a genuine
issue of material fact exists. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994).
Black does not challenge the dismissal of her Section 1981 claim. She
argues only that the district court erred by concluding (1) that she failed to
establish a prima facie case and (2) that she failed to create a fact issue on
pretext. 2
Under Title VII, a plaintiff establishes a prima facie case by showing
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). If the plaintiff
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2
We mention that this court has affirmed summary judgment against several of
Black’s (now-severed) co-plaintiffs. See Gray v. Miss. Dep’t of Rehab. Servs., No. 22-60411,
2023 WL 119636 (5th Cir. Jan. 6, 2023); Gathings v. Miss. Dep’t of Rehab. Servs., No. 22-
60405, 2023 WL 2327460 (5th Cir. Mar. 2, 2023); Laury v. Miss. Dep’t of Rehab. Servs.,
2023 WL 3073267 (5th Cir. Apr. 25, 2023).
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makes that showing, the burden shifts to the employer “to proffer a
legitimate, nondiscriminatory reason for its action,” after which the plaintiff
must “produce substantial evidence indicating that the proffered legitimate
nondiscriminatory reason is a pretext for discrimination.” Outley v. Luke &
Assocs., Inc., 840 F.3d 212, 216 (5th Cir. 2016) (quotation marks and citations
omitted).
We will assume Black made a prima facie showing. We then examine
whether she created a fact issue with respect to pretext. MDRS asserts that
it appointed Elrod as Director of Client Services because she was qualified
and had a long working history with MDRS. Elrod began working for MDRS
in 2001, then held various positions, including Evaluator II, Counselor III,
and District Manager. In 2013, Elrod transitioned to work as a Program
Coordinator for Mississippi’s Alcohol and Drug Test Services.
As to pretext, Black first argues that she and Elrod have different
qualifications. We agree with the district court’s fact-finding that there is no
meaningful difference between their qualifications. Both hold master’s
degrees and have long career histories with MDRS. Black failed to offer
evidence from which a factfinder could infer that she was “clearly better
qualified” than Elrod. See Price v. Fed. Exp. Corp., 283 F.3d 715, 723 (5th Cir.
2002).
Black also says pretext cannot be decided in this case on summary
judgment because Bishop and Howard’s “state[s] of mind” with respect to
filling the job opening are disputed fact issues. Because this argument was
not presented to the district court, it was forfeited. See Rollins v. Home Depot
USA, 8 F.4th 393, 397 (5th Cir. 2021).
Even considering this argument about state-of-mind, a plaintiff must
show that her employer’s decision was “more likely motivated” by
discrimination, or that the employer’s “explanation is unworthy of
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credence.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001)
(quotation marks and citation omitted). “[P]retext cannot be established by
mere conclusory statements of a plaintiff who feels [s]he has been
discriminated against.” EEOC v. Exxon Shipping Co., 745 F.2d 967, 976 (5th
Cir. 1984) (quotation marks and citation omitted). Here, Black’s
unsupported allegations regarding states of mind are insufficient to create a
fact issue. Further, Black has not identified any evidence suggesting that
Bishop’s or Howard’s decisions were racially motivated.
Because Black failed to create a genuine issue of material fact
regarding pretext, we AFFIRM.
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