     Case: 17-60489      Document: 00514307879         Page: 1    Date Filed: 01/15/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals

                                    No. 17-60489
                                                                                 Fifth Circuit


                                  Summary Calendar
                                                                               FILED
                                                                        January 15, 2018
                                                                          Lyle W. Cayce
JACKLON HAYWOOD,                                                               Clerk

              Plaintiff - Appellant

v.

MISSISSIPPI DEPARTMENT OF CORRECTIONS,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 3:16-CV-81


Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Jacklon Haywood (“Haywood”) appeals the district
court’s summary judgment dismissal of her race and sex discrimination claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. against
Defendant-Appellee Mississippi Department of Corrections (“MDOC”). For the
following reasons, we AFFIRM.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                    No. 17-60489
              I.     BACKGROUND AND PROCEDURAL HISTORY
      Haywood, a black female, began her employment with MDOC as a
Corrections Officer in 1985. Over the course of her career with MDOC,
Haywood received several promotions and was employed as a Probation and
Parole Agent when she applied for an open Correctional Field Officer
Supervisor position in January 2013. Haywood was interviewed for the
position by a panel of three supervisors, including Kenneth Fox (“Fox”), but
was not selected. Following the panel’s choice to install Mike Perrigan, a white
male, as the new Correctional Field Officer Supervisor, Haywood filed a charge
of discrimination with the EEOC on March 15, 2013. The EEOC issued a right-
to-sue letter on August 6, 2014, but Haywood did not file a lawsuit at that time.
      In June 2014, MDOC announced that it was again seeking applicants for
the Correctional Field Officer Supervisor position. Haywood submitted an
application to the Mississippi State Personnel Board, which then forwarded
those applications to the MDOC’s personnel office to schedule interviews. All
persons who applied for the position and met the experience and educational
requirements for the position were interviewed as a matter of course. MDOC
sent an interview notice to Haywood scheduling her interview for September
12, 2014. Because of a scheduling discrepancy, MDOC rescheduled Haywood’s
interview for the morning of September 19, 2014. 1 Haywood was interviewed
by a panel of interviewers selected by Lee McTeer (“McTeer”), a white male, all
of whom were at the same or a higher supervisory level as McTeer. The panel
consisted of McTeer, Christy Gutherz (“Gutherz”), a white female, Kenneth




      1 Haywood’s interview was initially schedule for later in the day, but because of a
personal scheduling conflict, her interview was moved up to earlier in the day.
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                                       No. 17-60489
Valentine (“Valentine”), a white male, and a fourth unidentified person who,
according to Haywood, was a black male. 2
       The interview process followed MDOC’s standard procedure. All
qualified applicants were asked a series of predetermined questions and were
assigned a point value based on their responses. At the end of each interview,
the interview panel reviewed each candidate’s responses and a mutual score
was determined by the core interviewers. The numeric score assigned to each
question was tallied and an overall total was assigned to each candidate. The
interview panel interviewed six applicants for the position: Greg Avant, a
white male; Chandra Bonner, a black female; Jean Hooper, a black female;
Chad Smith, a black male; Nay Trotter, a white female; and Haywood. It is
undisputed that Greg Avant had the highest composite interview score of 46,
and Haywood had the lowest composite interview score of 26. 3 Based on his
interview score, Avant was recommended for promotion. On November 14,
2014, Kenneth Fox sent an email to all persons previously interviewed for the
Correctional Field Officer Supervisor position, notifying them that, according
to McTeer, they would all need to re-interview for the position and would have
to submit a letter of interest to receive that interview. Haywood submitted a
letter to McTeer that same day expressing her interest in being re-interviewed.
However, no applicants were re-interviewed, and on December 22, 2014, Avant
was announced as the recipient of the promotion to Correctional Field Officer
Supervisor in a staff-wide email.




       2 In her deposition, Haywood testified that she was unsure whether Valentine served
on the interview panel, but was sure that at least one of the panel members was black.
McTeer testified that the panel consisted of himself, Gutherz, and Jay Mallette, a black male.
Although the ultimate composition of the panel is disputed, it is undisputed that the panel
consisted of at least one black male and one female.
       3 Record evidence demonstrates that Bonner scored 35 points, Smith scored 31 points,

Hooper scored 29 points, and Trotter scored 28 points.
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                                     No. 17-60489
      On February 20, 2015, Haywood filed a charge of discrimination with the
EEOC, alleging that she was not promoted because of her race, age and sex,
and because she previously filed a charge of discrimination with the EEOC.
After 180 days without a determination from the EEOC, Haywood requested
and received a right-to-sue letter on October 23, 2015. She subsequently filed
suit against MDOC and McTeer in the Circuit Court of Leflore County,
Mississippi, on January 6, 2016. In her petition, Haywood alleged that she was
subjected to employment discrimination based on her race, sex, and age in
violation of Title VII. Haywood also brought a negligence claim under
Mississippi state law and asserted that MDOC and McTeer maintained a
“pattern and practice of discrimination on the basis of race, sex and age against
black females.” MDOC and McTeer removed Haywood’s case to federal court,
and McTeer filed a motion to dismiss. The district court dismissed McTeer, and
MDOC filed a motion for summary judgment, arguing, inter alia, that
Haywood could not rebut MDOC’s offered legitimate, non-discriminatory
reason for promoting Avant. 4 Haywood responded, arguing that (1) she was
more qualified than Avant, (2) contrary to what she believed were MDOC’s
assertions, the interview panel considered “other factors” in addition to the
cumulative interview score when assessing whether to hire a candidate, and
(3) there are “scratch outs and corrections” on the interview scoring sheets
indicating that the scores were fabricated. The district court granted summary
judgment in favor of MDOC and dismissed all of Haywood’s claims. This appeal
followed.




      4  MDOC also raised other grounds for dismissal of Haywood’s negligence and “pattern
and practice” claims, none of which were addressed by Haywood in her response to MDOC’s
motion for summary judgment. The district court dismissed these claims based on Haywood’s
failure to address them in her response, and Haywood does not raise them on appeal.
Accordingly, this opinion is limited to Haywood’s Title VII claim.
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                                 No. 17-60489
                                II.   DISCUSSION
      We review a district court’s grant of summary judgment de novo, viewing
all facts and drawing all inferences in a light most favorable to the non-moving
party. Alkhawaldeh v. Dow Chemical Co., 851 F.3d 422, 425–26 (5th Cir. 2017).
Summary judgment is proper when there is “no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). On appeal, this court may affirm a grant of summary judgment
on any grounds supported by the record and argued in the district court.
Campbell v. Lamar Inst. of Tech., 842 F.3d 375, 378 (5th Cir. 2016).
      A Title VII discrimination claim based on circumstantial evidence is
analyzed using the burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). See McCoy v. City of
Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). To survive summary judgment,
a plaintiff must first present a prima facie case of discrimination. Thomas v.
Johnson, 788 F.3d 177, 179 (5th Cir. 2015). Once a plaintiff establishes a prima
facie case, a presumption of discrimination is established. Id. A burden of
production then is placed on the employer “to articulate some legitimate,
nondiscriminatory reason” for the adverse employment action. Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (quotation marks omitted).
If the employer meets this burden, the presumption of discrimination
disappears and the burden shifts back to the plaintiff to establish that the
employer’s proffered reason is pretextual. Id. In contrast to the minimal
burden that a plaintiff bears when establishing his prima facie case, a plaintiff
must produce “substantial evidence of pretext.” Auguster v. Vermilion Par.
Sch. Bd., 249 F.3d 400, 402–03 (5th Cir. 2001). “Our job as a reviewing court
conducting a pretext analysis is not to engage in second-guessing of an
employer’s business decisions.” LeMaire v. La. Dep’t. of Transp. & Dev., 480
F.3d 383, 391 (5th Cir. 2007). An employee’s showing that he was “clearly
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                                 No. 17-60489
better qualified is enough to prove that [his] employer’s proffered reasons are
pretextual.” Price v. Fed. Express Corp., 283 F.3d 715, 723 (5th Cir. 2002)
(citations omitted).
      The parties do not dispute that Haywood has presented a prima facie
case of discrimination: she is a black female who applied for and qualified for
the position at issue but was not promoted because MDOC promoted Avant, a
white male. See Williams-Boldware v. Denton Cnty., Tex., 741 F.3d 635, 643
(5th Cir. 2014), cert denied, — U.S. —, 135 S. Ct. 106, 190 L. Ed. 2d 41 (2014).
In response, MDOC offers that Avant was promoted over Haywood because he
received the highest ranking by the interview panel “after considering the
applications and interviews of all applicants.” “An employer’s subjective reason
for not [promoting] a candidate, such as a subjective assessment of the
candidate’s performance in an interview, may serve as a legitimate,
nondiscriminatory reason for the candidate’s non-selection” so long as the
employer “articulates a clear and reasonably specific basis for its subjective
assessment.” Alvarado v. Tex. Rangers, 492 F.3d 605, 616 (5th Cir. 2007)
(citations omitted). MDOC identifies the score sheets completed by the
interview panelists during each applicant’s interview, all of which indicate that
Avant had the highest score and Haywood had the lowest, as the specific
reason for Avant’s promotion. Because MDOC has provided some evidence
demonstrating how it scored all applicants, MDOC has offered a “clear and
reasonably specific” legitimate reason for promoting Avant over Haywood. See
Martinez v. Tex. Workforce Comm’n – Civil Rights Div., 775 F.3d 685, 688 (5th
Cir. 2014) (holding that interview scores, where the employer provided
evidence demonstrating how it scored applicants in the interview process, was
a legitimate, non-discriminatory reason for its hiring decision); cf. Alvarado,
492 F.3d at 617 (finding that there was no evidence as to how the interviewers
arrived at their interview scores).
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                                 No. 17-60489
      Haywood does not dispute that she received the lowest cumulative score
of all candidates interviewed, but instead challenges the neutrality of the
interview process. That is, Haywood attempts to rebut MDOC’s reason by
pointing to the allegedly conflicting deposition testimony of Fox and McTeer in
response to questions about the interviewing process. When questioned about
what factors are considered when selecting someone for promotion, McTeer
testified that he relied primarily on any given applicant’s interview
performance, noting that it was the “majority” of what he considered when
selecting a candidate for promotion. This testimony, according to Haywood,
conflicts with that of Fox (who was not on the selection panel for the position
she sought), who testified that he considered the “highest score and all of the
other stuff that comes in” when assessing whether to hire or promote a
candidate. Notwithstanding Haywood’s contentions to the contrary, McTeer’s
testimony is in accord with that of Fox: when interviewing a job candidate, the
interview panel relies primarily on the interview score and may give weight to
other considerations when relevant.
      Haywood also questions the authenticity of the interview scoring sheets,
arguing that they contain “scratches and corrections” that give her a lower
point total. The interview forms require interviewers to fill in interviewees’
responses by hand, and interviewers assign a point total to each response. This
method of completing interview forms will necessarily produce “scratches and
corrections,” and record evidence demonstrates that none of the scratches
affected the overall interview score of any applicant in a meaningful way.
      Haywood next argues that she was “far more qualified” than Avant for
the Corrections Field Officer Supervisor position. Specifically, she argues that
while she has a high school diploma, college degree, and twenty-nine years of
experience, Avant only has a high school diploma and fourteen years of
experience with MDOC in addition to five years of related service with another
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                                       No. 17-60489
state agency. 5 Although Haywood’s showing that she was “clearly better
qualified” would be enough to prove that MDOC’s proffered reason is
pretextual, Price, 283 F.3d at 723, merely demonstrating that she has “better
education, work experience, and longer tenure with [MDOC] [does] not
establish that [she] is clearly better qualified.” Id. (citing Nichols v. Lewis
Grocer, 138 F.3d 563, 568–69 (5th Cir. 1998) (holding that losing applicant’s
longer tenure with the company did not make her “clearly better qualified”
than the winning applicant). Thus, although Haywood’s qualifications are
sufficient to satisfy the educational and experience requirements of the
position she sought, they do not “leap from the record” when contrasted with
Avant’s experience. Price, 283 F.3d at 723.
       Haywood further attacks the integrity of the interview process by
pointing to McTeer’s deposition testimony, in which he stated that he
“possibly” uses “racist and sexist slurs” outside of work. Haywood argues that
given this testimony, it is clear that McTeer could not—and did not—check any
racist and sexist animus at the door when he conducted interviews, and that
this animus tainted the interview process. However, McTeer’s testimony—in
which he responds “possibly” to the question of whether he uses racist or sexist
slurs at home—is equivocal at best, and Haywood does not make the
connection between McTeer’s testimony and her interview. Haywood otherwise
fails to present any evidence from which a jury could infer that the interview
process—which involved interview panel members other than McTeer—was
tainted with discriminatory animus.




       5  Haywood does not challenge that Avant meets the minimum educational and
experience requirements for the position, which accepts applications from employees who
graduated “from a standard four (4) year high school[] . . . AND . . . had [n]ine years of work
related (sic) experience,” two of those being as a Corrections Field Officer.
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                                 No. 17-60489
      Finally, Haywood argues that because she requested a second interview
and did not receive one, this case presents the exact same facts as those in
McMullin v. Mississippi Department of Public Safety, 782 F.3d 251 (5th Cir.
2015), and therefore requires reversal. In McMullin, the plaintiff, a white
female, repeatedly requested interviews for a promotional position but was
both denied an interview and looked over for the position in favor of a black
male. Id. In holding that a fact issue existed as to whether her application was
intentionally ignored, this court identified several facts—including that the
plaintiff requested an interview but the interviewer set her request aside and
failed to notify her when applications were being accepted and interviews were
being conducted—which indicated a “fumbling, bumbling case of determined
efforts to deny [the plaintiff] a promotion.” Id. at 252. Here, Haywood offers no
such proof, as she presents no evidence that second interviews were conducted
for any candidate. Haywood’s reliance on McMullin is inapposite.
      Haywood has failed to offer any evidence, let alone “substantial
evidence,” to demonstrate MDOC’s offered reason for promoting Avant was
pretextual or that its selection process was tainted by discriminatory animus.
Auguster v. Vermilion Par. Sch. Bd., 249 F.3d 400, 402–03 (5th Cir. 2001).
Having failed to carry her burden of demonstrating pretext, we hold that
Haywood’s claims were properly dismissed.
                                III.   CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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