Opinion

Black v. MS Dept of Rehabilitation Svc

Court
Court of Appeals for the Fifth Circuit
Filed
Jul 5, 2023
Status
Unpublished
Nature of suit
Civil Rights
Cited by
0 cases
Authority
More cited than 23.6%

The opinion

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.

_____________________

*

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.

_____________________

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).

2

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No. 22-60409

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

_____________________

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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No. 22-60409

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

4

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No. 22-60409

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.

5

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