The Fifth Circuit issues yet another reminder, in today’s Title VII decision, that an employer who stoutly refuses to offer any explanation for a decision to deny a promotion takes a strong chance of having to justify its actions at a jury trial.
McMullin v. MS Dept of Public Safety, No. 14-60366 (5th Cir. Apr. 6, 2015): Lieutenant Gayle McMullin – a 35-year veteran of the force – was denied a promotion to Training Director under suspicious circumstances.
McMullin first expressed interest in the director vacancy in 2012. She delivered three letters of intent for the officers who would make the decision … including a central figure in the case, Colonel Berry. But when the formal application period opened for one week, McMullin never received official notification – in evident violation of the department’s formal procedures.
Another officer, Master Sergeant Pack, also sent a letter to Colonel Berry. While There appeared to many disputes about the interview process, what was not in dispute was that “Master Sergeant Pack was interviewed and Lieutenant McMullin was not.”
In contrast to McMullin’s extensive training experience, “Pack … had a lower rank, seven fewer years of service with the Department, and served as training officer and counselor in four or five patrol schools.” Pack also had a disciplinary history that had twice led to his termination, though in both instances he was later reinstated.
The panel also noted the vagueness of the department’s explanation for why it considered promoting a sergeant over a lieutenant. “Colonel Berry provided vague answers throughout his deposition, including ‘Start and work our way from the bottom up’ and ‘Start with the lieutenant and work our way up to the captain.'” There was also evidence that There were in fact two training positions open, and that one was never filled; Barry testified inconsistently about the number of vacancies.
Pack was promoted the same day he was interviewed to the rank of lieutenant, and Thereafter awarded the promotion. “Master Sergeant Pack is black; Colonel Berry is black; and Lieutenant McMullin is white.”
While the district court granted summary judgment on these facts, the Fifth Circuit reverses.
The panel holds that McMullin presented a genuine dispute of material fact about whether she applied for the vacancy by sending her letter before the formal promotion procedure commenced: “Colonel Berry knew that the position was vacant, so the letter had meaning to him – that is, he understood that Lieutenant McMullin was applying for the Director’s position vacated by Captain Gillard.”
Because McMullin made out her prima facie case, the department was obliged to proffer some legitimate, non-discriminatory explanation for its decision. Yet beyond “perfunctorily stat[ing] that it ‘has provided a legitimate, non-discriminatory reason for its decision to promote [Master Sergeant] Pack,'” the department offered no elaboration.
As the panel observed, such a vague explanation under Title VII burden-shifting “will not do. The Department’s burden was light. It needed only to produce or point to evidence of a non-race-based reason for its employment decision; yet, it wholly failed to do this. As such, we are left with Lieutenant McMullin’s prima facie case, which, as discussed above, is sufficient to withstand summary judgment and take this case to a factfinder.”