‘Fumbling, Bumbling Efforts’ To Deny Promotion

Gayle McMullin is a lieutenant with the Mississippi Department of Public Safety. For years, she served on and off as a training officer in several patrol schools at the Patrol’s Training Division. In that capacity, McMullin trained cadets in various disciplines such as driving, firearms, and physical fitness.

In 2000, McMullin was transferred to the Training Division full time, and in 2006, was assigned to be a full-time training coordinator and instructor for the Mississippi Law Enforcement Officers Training Academy. At the Academy, McMullin coordinated state training for law enforcement in all state entities, including sheriffs, deputies, game and fisheries officers, chiefs of police, and highway patrolmen. In addition to her role as coordinator, McMullin also served as an instructor at the Academy. In April 2012, McMullin was transferred from the Academy to the Department’s headquarters and was assigned the role of Communications Coordinator for the training of dispatchers.

In 2012, the captain’s position in the Training Division became open. Though the notice of the vacancy was faxed to various locations in the Department, it was not sent to McMullin’s worksite, and the Department failed to follow other notification requirements in its own rules. Colonel Donnell Berry, the Director of the Highway Patrol, awarded the job instead to Sergeant Marshall Pack. Pack and Berry are black; McMullin is white.

Pack had seven fewer years of service with the Department. Where McMullin was not only of higher rank but also had spent half her career in a training capacity, Pack had served as training officer in only four or five patrol schools. And Pack had been fired twice while working for the Department. Pack was terminated first in October 1995 for having sex with a confidential informant. Pack was later reinstated because other officers who engaged in similar activity had not been terminated. He was again terminated in December 2001 for (1) seizing cash from a potential target without accounting for the seizure, (2) participating in sexually explicit behavior during a vacation in Florida, and (3) observing but not reporting illegal drug activity during that vacation. Subsequently, Pack and the Department entered into a settlement which rescinded his second termination, restored him to the same rank and grade, and gave him full benefits and back pay.

McMullin sued the Department for racial discrimination. Though the lawsuit was initially dismissed, the federal Fifth Circuit Court of Appeals reinstated the claim and ordered a jury trial.

Describing the Department’s conduct as “fumbling, bumbling efforts” to deny McMullin a promotion, the Court held that a jury “could find that (1) there was one job opening; (2) McMullin learned of that vacancy despite the Department’s failure to provide her access to the Position Open Notice; (3) McMullin applied for that open position; (4) Berry received McMullin’s application and knew that McMullin was qualified for the job; (5) Berry knew that the position was vacant, so the letter had meaning to him – that is, he understood that McMullin was applying for the Director’s position vacated by the captain; (6) Berry took no action initially with respect to McMullin’s application because the Director’s position had not yet been ‘posted,’ but (7) for some reason, Berry continued to ignore McMullin’s application after the Position Open Notice was released despite his policy to ignore early arriving applications only ‘until the position is posted.’ Finally, a jury reasonably could infer that (8) Colonel Berry intentionally failed to schedule McMullin for an interview and, instead, (9) interviewed Pack and then (10) promoted him to the lieutenant rank before (11) appointing him as Director.

The Court held: “The Department perfunctorily states that it ‘has provided a legitimate, non-discriminatory reason for its decision to promote Pack.’ Beyond this statement, the Department provides 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. As such, we are left with McMullin’s prima facie case, which is sufficient to withstand summary judgment and take this case to a factfinder.”

McMullin v. Mississippi Department of Public Safety, 782 F.3d 251 (5th Cir. 2015).