Plaintiff Wins Based On Only Prima Facie Case in Reverse Discrimination Failure to Promote Case

      When an appellate court sums up plaintiff’s evidence as presenting a “fumbling, bumbling case of determined efforts to deny a promotion,” it’s a good day at the office for the plaintiff. That’s how the U.S. Fifth Circuit Court of Appeals described the evidence in McMullin v. Mississippi Department of Public Safety, No. 14-60366 (Apr. 6, 2015).

          This was a rather basic case of discrimination in the failure to promote context involving a law enforcement position. The case illustrates what happens when an employer prevaricates and is unprepared for questioning by an astute plaintiff’s lawyer. The plaintiff was white and the successful candidate was black. In employment discrimination cases that makes no difference – it’s all about equal protection of the law, right? – so the case goes in the books as a reverse race discrimination case.

          The plaintiff easily made her plaintiff’s prima facie under the McDonnell Douglas standard, as modified for failure to promote cases: (1) she is a member of the protected class; (2) she sought and was qualified for a position for which applicants were being sought; (3) she was rejected for the position; (4) the employer hired a person outside of the plaintiff’s protected class or continued to seek applicants with the plaintiff’s qualifications. This burden is very light. The real test for plaintiffs in these cases is responding to the employer’s evidence of a legitimate, nondiscriminatory reason for its promotion decision.

       In McMullin, though, the defendant employer offered no evidence of the reason for its decision. It “perfunctorily state[d] that it ‘has provided a legitimate, non-discriminatory reason for its decision ***.’ Beyond this statement, the Department provide[d] no discussion, explanation, or elaboration of its purported legitimate reason(s) for its promotion decision. This 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.”

          What this meant is that plaintiff’s simple prima facie case, all by its lonesome, was enough to survive summary judgment and get the case to a jury. And getting a case to a jury is what it is all about.

        Not to mention, it probably didn’t hurt that the person who received the promotion had been fired twice by the employer, once for having sex with a confidential informant and later for not accounting to cash seized from a suspect and engaging in sexually explicit behavior during a vacation, among other antics. He was reinstated both times. Plaintiff’s record was clean.

         If the employer has any brains it will get this case settled. The Mississippi Department of Public Safety doesn’t need the publicity – taxpayer dollars at work once again for the citizens of the state.