     Case: 14-60366     Document: 00512994182        Page: 1    Date Filed: 04/06/2015




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals

                                    No. 14-60366
                                                                                 Fifth Circuit

                                                                               FILED
                                                                            April 6, 2015

GAYLE MILLER MCMULLIN,                                                    Lyle W. Cayce
                                                                               Clerk
              Plaintiff - Appellant

v.

MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY; ALBERT SANTA
CRUZ, In his official capacity as Commissioner of the Mississippi
Department of Public Safety,

              Defendants - Appellees




                  Appeal from the United States District Court
                    for the Southern District of Mississippi


Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      In this appeal from a summary judgment dismissing a complaint in a
Title VII race-discrimination case, plaintiff, Lieutenant Gayle McMullin,
presented evidence, which, if believed by a jury, would show a fumbling,
bumbling case of determined efforts to deny a promotion to McMullin.
Lieutenant McMullin alleges that the Mississippi Department of Public Safety
(“the Department”) 1 failed to promote her to the position of Training Director



      1   Lieutenant McMullin also sued the Department’s commissioner, Albert Santa Cruz,
in his official capacity.
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                                     No. 14-60366
and instead promoted a less-qualified officer of lower rank to fill the position,
based on race.
       The district court granted summary judgment in favor of the
Department, finding that Lieutenant McMullin failed to establish a prima
facie case of race-based discrimination. Because the district court erred in
granting summary judgment, we VACATE the judgment, and we REMAND
for trial or other proceedings not inconsistent with this opinion.

                                  I. Background


A.   Overview of Lieutenant McMullin’s Employment History

       Plaintiff McMullin started her employment with the Department as a
sworn officer in April 1987. For the next several years, she served on-and-off
as a training officer in several patrol schools 2 at the Mississippi Highway
Patrol’s Training Division (“HP 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 HP Training
Division full time. In this role, McMullin provided the training listed above as
well as training in disciplines such as drug interdiction and K-9 patrol. In
2005, while still working in the HP Training Division, McMullin was promoted
to the rank of lieutenant, a rank she retained at the time of this appeal. 3
       In 2006, Lieutenant McMullin was assigned to be a full-time training
coordinator and instructor for the Mississippi Law Enforcement Officers




       2From the evidence, it appears that patrol schools provide the initial training that
candidates need before being sworn in as state troopers.
      3 The relevant hierarchy in the Highway Patrol (high to low) is Captain; Lieutenant;

Master Sergeant.
                                            2
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                                     No. 14-60366
Training Academy (“MS Academy”). 4               At the MS Academy, Lieutenant
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, Lieutenant
McMullin also served as an instructor at the MS Academy.
      In April 2012, Lieutenant McMullin was transferred from the MS
Academy to the Department’s headquarters and was assigned the role of
Communications Coordinator for the training of dispatchers.

B.   Lieutenant McMullin’s Application for the Director’s Position

       From at least mid-2011 until early 2012, 5 Captain Chris Gillard served
as Director of the HP Training Division. In February 2012, Captain Gillard
vacated that position and received a promotional transfer to another position
within the Department. Shortly thereafter, Lieutenant McMullin heard by
word of mouth that Captain Gillard had vacated the Director’s position.
Because she never received any official notice that the Director’s position was
open, Lieutenant McMullin called Captain Gillard to verify that the he had
vacated the position and that the position would be filled. Captain Gillard
confirmed these details.
      The standard procedure for applying for an open position within the
Department was to send a letter of interest after learning of an available
position.     To that end, Lieutenant McMullin drafted letters to the
Department’s Commissioner (Albert Santa Cruz), the Department’s Human
Resources Legal Liaison (Natalie Holmes), and the Director of the Highway


      4  Unlike the HP Training Division, which deals only with troopers and cadets for the
Mississippi Highway Patrol, the MS Academy provides basic training classes for a
multiplicity of Mississippi entities, including the Highway Patrol, Department of
Transportation, Department of Wildlife, sheriffs, and local police.
       5 The record does not establish when Captain Gillard began as Director.

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Patrol (Colonel Donnell Berry), stating her interest in applying to the vacant
position. Each letter states:
              Ref: Training Director for MHP

              I have been informed that Captain Gillard has
              transferred to Driver Services and I am writing this
              letter to inform you that I am interested in the
              Captains [sic] position for the Training Division. Any
              consideration would be greatly appreciated.

On February 27, 2012, Lieutenant McMullin delivered these letters to Colonel
Berry’s assistant who said that she would deliver the letters to their intended
recipients. Colonel Berry received Lieutenant McMullin’s letter shortly after
she delivered it. He left the letter on his desk, however, and took no action
because the Director’s position had not yet been “posted.” It was Colonel
Berry’s policy to ignore letters like Lieutenant McMullin’s “until the position
is posted.”
      Approximately three weeks later, on March 19, 2012, Colonel Berry told
Lieutenant McMullin she would be reassigned, effective April 1, from the MS
Academy to the Department’s headquarters where she would serve as the
Communications Coordinator for the training of dispatchers.

C.   Position Open Notice

      On March 26, 2012, a week after informing Lieutenant McMullin of her
transfer, Colonel Berry directed human resources to disseminate a “Position
Open Notice” (“Notice”) for the Director’s job vacated by Captain Gillard. That
Notice states that it is “To: All Sworn Officers” and says that the Department
“is seeking sworn personnel for a LE-Director/Training, which carries the rank
of Lieutenant, assigned to Headquarters.”        The Notice also provides the
necessary qualifications, references the application process, and states that
applications would be accepted for five days, from March 26 to March 30.
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      Both Lieutenant McMullin and Master Sergeant Marshall Pack (the
person who was awarded the job at issue in this case) stated that the
Department typically sends out a position open notice, such as the Notice
described above, via email, mail to one’s personal residence, personal phone
calls, and messages over the dispatch system. Although he could not recall
precisely how he received the Notice at issue here, Master Sergeant Pack (the
person ultimately hired) believes that the Notice was sent to him by email, by
mail to his home address, or both. Lieutenant McMullin received no such
personalized notice.
      In the requests for admissions, the Department stated that the Notice
“was faxed to all troop dispatch centers for dissemination to all troopers
including McMullin.” Importantly, however, the fax did not reach several
locations. A fax confirmation sheet (stamped March 26, 2012 at 9:40 AM)
shows that there was “no” transmission and/or “incomplete” transmission of
the Notice to seven locations, including the MS Academy where Lieutenant
McMullin was working. 6
      The evidence also shows that the Department’s merits promotion system
requires that a position open notice be sent to Department staff by fax to all
Department fax numbers; email notice to all Department staff; posting on the
Department website and the State Personnel Board website; and notice on the
human resources bulletin board.            The Department did not follow these
notification requirements; nor did it follow its general practice of providing
notice via email, mail to one’s personal residence, personal phone calls, and the
dispatch system. As noted above, the attempt to fax the Notice failed. Further,


      6 The transmission also failed to reach trooper locations in Starkville, Hattiesburg,
and Gulfport. Master Sergeant Pack’s letter of interest states that he was then working for
the MS Bureau of Investigation, a location that received the faxed Notice. The only other
applicant, James Walker, was then working for Troop C, another location that received the
faxed Notice.
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                                     No. 14-60366
there is no evidence that the Notice was emailed to qualified personnel, such
as Lieutenant McMullin; mailed to Lieutenant McMullin’s personal address;
communicated over the phone; uploaded to the Department website; or
transmitted via the dispatch system. Lieutenant McMullin never received the
Notice.
       A jury, especially in view of the evidence that follows, could determine
that these facts constituted the first steps to deny the promotion to Lieutenant
McMullin.

D.   Master Sergeant Pack Selected as Director

      On March 27, Master Sergeant Pack, a state trooper, sent a letter to
Colonel Berry “requesting the opportunity to interview” for the position
vacated by Captain Gillard. Two days later, another applicant sent a letter
requesting an interview.         On April 10, an Interview Board interviewed
applicants for the open Director position. The Department’s testimony and
other evidence regarding the interview process is murky and contradictory,
leaving it unknown who was interviewed, who conducted the interviews, and
what position was being filled. 7
      At the very least, the evidence shows that Master Sergeant Pack was
interviewed and Lieutenant McMullin was not. On April 10, 2012, the same
day as Master Sergeant Pack’s interview, Colonel Berry told Master Sergeant
Pack that he would “be promoted [on May 1] to the position of LE-



      7  For example, the composition of the Interview Board is unclear, as the record
contains completed interview forms from personnel not known to be on the Interview Board.
And, there is a discrepancy as to how many candidates were interviewed. Captain Gillard
stated that one candidate was interviewed, but the interview forms from the other Interview
Board members state that “interviews,” plural, were conducted. There are also differing
accounts of the position to be filled: one interview form refers to “Lieutenant-Driver
Services/Training” and “Lieutenant-Training”; the other interview forms refer to “LE-Branch
Director-Training, Lieutenant.”
                                            6
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                                  No. 14-60366
Director/Training,” which carries the rank of lieutenant. As a result of this
decision, Master Sergeant Pack both received the Director’s job and was
promoted from master sergeant to lieutenant.
        Master Sergeant Pack is black; Colonel Berry is black; and Lieutenant
McMullin is white. A jury could infer that Colonel Berry’s conduct evinced a
connivance to favor Master Sergeant Pack over Lieutenant McMullin based on
race.

E.   Qualifications Comparison

        At the time of Master Sergeant Pack’s promotion, Lieutenant McMullin
had twenty-five years of experience with the Department and had been a full-
time, training coordinator and instructor for the MS Academy for six years
(2006 to March 2012). Lieutenant McMullin spent approximately half of her
career with the Department in training, including serving as a training officer
and counselor in twelve patrol schools. Lieutenant McMullin had never been
disciplined by the Department.       The Department does not dispute that
Lieutenant McMullin was qualified for the Director’s position.
        Master Sergeant Pack, by contrast, 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. And, he had been fired twice while working for the
Department and assigned to the Mississippi Bureau of Narcotics. Master
Sergeant Pack was terminated first in October 1995 for having sex with a
confidential informant. He 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, Master Sergeant Pack and the

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                                       No. 14-60366
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.
        Colonel Berry stated that he did not know that Master Sergeant Pack
had been fired before he promoted him to the Director position, but Colonel
Berry added that the prior terminations and misconduct would not have
affected his decision to promote Master Sergeant Pack.
        A jury could conclude that the promotion of Master Sergeant Pack, with
his dubious record of service and Colonel Berry’s stated failure to review the
record of Master Sergeant Pack before his promotion, was evidence of
discriminatory motive based on race.

F.     Rank of the Director’s Position

        The Director’s position at issue in this case had been filled by a captain
for at least twenty-five years prior to Captain Gillard’s departure and the
dissemination of the Position Open Notice in March 2012. Colonel Berry,
however, circulated a notice to fill the instant vacancy with a lieutenant
instead of a captain. The Department gave the position to Master Sergeant
Pack, after promoting him to the rank of lieutenant.
        When asked why he sought a lieutenant instead of a captain to fill the
vacancy, 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.” 8 Then, Colonel Berry hinted
that perhaps there were, in fact, two vacant positions: one captain position
and one lieutenant position.



        8Other similar responses: “Start work out with filling lieutenant, then the captain
slot next”; “I wanted to fill the lieutenant and then work my way up to the captain”; “To work
my way up from a lieutenant to captain”; and “Work from the bottom and work to the top.”
                                              8
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                                 No. 14-60366
      Q: So as director of the Mississippi Highway Patrol, you changed
         the rank of the Training Director from captain to lieutenant?

           A: No. In training, it’s always been a captain and a
              lieutenant. It’s going to start at the top and fill the
              lieutenant slot, then go to the captain’s slot.

      Q: The captain’s slot is still open?

           A: Yeah. The Director of . . . training has been in the captain
              slot.

      Q: And, you’re going to fill the captain’s slot at some point?

           A: Yes, sir.

      Colonel Berry said he would fill the “captain’s slot” when this lawsuit
was resolved. But, even after making these statements, Colonel Berry was
unable to confirm his suggestions that (1) there were two Director positions
and (2) the “captain slot” remained unfilled. For instance, Colonel Berry stated
that Master Sergeant Pack (the person ultimately promoted to the rank of
lieutenant and then appointed as Captain Gillard’s replacement) was the
“acting” Director because he was not a captain: “The lieutenant is the acting
director over the Training Department.” Emphasis added. But, Colonel Berry
acknowledged that no order stated that Master Sergeant Pack was the “acting”
Director over the HP Training Division, and he vacillated when asked whether
Master Sergeant Pack was “Director” or “Acting Director,” even stating that
the Human Resources Director was not informed that Master Sergeant Pack
was an “acting” Director.
      Eventually, Colonel Berry changed his storyline and said that the single
Director position was not vacant but was being “held by a lieutenant” and that
Master Sergeant Pack is the “Director of training.” Later in his deposition,
Colonel Berry said that the Department “will make [the Director’s position] a
captain.” He agreed that the position “is designated as a captain’s position but
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                                 No. 14-60366
is currently filled by a lieutenant” and added that the position is “held by a
lieutenant until we fill the captain’s position.” Emphases added. Colonel
Berry also agreed that the “rank of training [D]irector was not changed but
was filled by lieutenant instead of captain” and added, “It’s being held by a
lieutenant instead of a captain right now.” Emphases added.
       A jury could conclude that Colonel Berry’s testimony reflected
manipulative reasoning to obfuscate the actual facts of the promotion of Master
Sergeant Pack.

                          II. Procedural History


A.    EEOC Charge & Response

       One month after Master Sergeant Pack’s promotion, Lieutenant
McMullin filed a charge of discrimination against the Department with the
EEOC. Lieutenant McMullin alleged that the Department failed to promote
her to the Director position at the rank of captain because of her race.
       The EEOC requested that the Department respond to Lieutenant
McMullin’s charge of discrimination. The Department provided the following
response to the EEOC:
             [Lieutenant McMullin] did not seek a promotion. The
             position of which [McMullin] mentions is that of the
             same rank as she currently holds.            However,
             [McMullin] had the opportunity to ask for a “lateral
             transfer,” which would have afforded her the ability to
             work in the area of Training if she had desired [to] do
             so.

             The [Department] did not recruit, interview, or
             promote for a position of “Captain” within the area of
             Training. It did however recruit, interview, and
             promote for a position of “Lieutenant” and a qualified
             sworn personnel member was selected from the two (2)
             applicants who applied for the position.
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       Before the EEOC completed its investigation, Lieutenant McMullin
requested and received a right-to-sue letter.

B.    District Court Proceedings

       Lieutenant McMullin filed this Title VII action in the district court,
alleging that the Department’s failure to promote her to the Director position
constituted race-based discrimination. After discovery, the Department moved
for summary judgment. The district court dismissed Lieutenant McMullin’s
arguments against the Department’s motion, calling her arguments “simple
conjecture” that were “laden with conspiracy-oriented details” such as Colonel
Berry’s and Human Resources Director Holmes’s race (black), “as if to show
that [race] has a connection to [Lieutenant McMullin’s claim].” Then, the
district court concluded that Lieutenant McMullin failed to establish a prima
facie case of race-based discrimination because the summary-judgment
evidence did not establish any factual support: (1) that Lieutenant McMullin
applied for the job, (2) that she was rejected, or (3) that the position was filled
by a non-white applicant. The district court was clearly and plainly incorrect,
on each point, to say that there was no evidentiary support.

                                III. Discussion 9

       This failure-to-promote case presents no direct evidence that the
Department denied Lieutenant McMullin the promotion because she was
white. That is to say, the defendants expressed no overt, race-based hostility
or animus toward Lieutenant McMullin; nor did they express any overt, race-
based support in favor of Master Sergeant Pack. There is, however, more than
ample circumstantial evidence to create issues of material facts from which a


       9This Court reviews the district court’s grant of summary judgment de novo. Jackson
v. Watkins, 619 F.3d 463, 465 (5th Cir. 2010).
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                                        No. 14-60366
jury could find that Lieutenant McMullin was a victim of racial discrimination.
In the absence of such direct evidence, the familiar McDonnell Douglas burden-
shifting framework applies: Lieutenant McMullin must first demonstrate a
prima facie case of discrimination; the Department then must articulate a
legitimate, non-discriminatory reason for its decision not to promote
Lieutenant McMullin; and, if the Department meets its burden of production,
Lieutenant McMullin must then offer sufficient evidence to create a genuine
issue of material fact that the Department’s reason is a pretext for race-based
discrimination. Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d
408, 411-12 (5th Cir. 2007). 10

A.    Prima Facie Case

         In moving for summary judgment, the Department argued that
Lieutenant McMullin had not established a prima facie case of discrimination.
         In a failure-to-promote case such as this, a plaintiff establishes a prima
facie case of race-based discrimination by demonstrating that (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.                 Williams-
Boldware v. Denton Cnty., Tex., 741 F.3d 635, 643 (5th Cir.), cert. denied, 135
S. Ct. 106 (2014); Burrell, 482 F.3d at 412.
         No one questions that Lieutenant McMullin is a member of a protected
class:        she is white.     There is no dispute that Lieutenant McMullin was
qualified for the Director position: she has spent half of her twenty-five-year



          Based on the summary-judgment evidence and argument, this is not a motivating-
         10

factor case. See Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411-12 (5th
Cir. 2007) (providing the motivating-factor analysis).
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                                 No. 14-60366
Department career in Training. Nor is there a question that Master Sergeant
Pack is outside of Lieutenant McMullin’s protected class: he is non-white.
There is sharp disagreement, however, as to whether Lieutenant McMullin
applied for the Director’s position and, relatedly, whether she was ever rejected
for the position.
      To answer those questions, we must first address the confusion created
by Colonel Berry’s testimony regarding whether there is one Director’s position
or two Director’s positions (one captain-Director and one lieutenant-Director).
As an initial matter, at no time does the Department clearly or unequivocally
state that there are two positions. And, the evidence, viewed in Lieutenant
McMullin’s favor, supports the inference that there is (and always has been) a
single Director position in the HP Training Division. Moreover, even if we
assume a non-fact, that is that there were two Director positions of different
ranks, the record lacks evidence that there was a vacancy in the “lieutenant”
position. The only vacancy that can be inferred from the record—when viewing
the record in favor of Lieutenant McMullin—is the opening in the captain-level
Director’s position that was created when Captain Gillard was promoted to a
new position within the Department. Even Master Sergeant Pack (who was
promoted to the Director position) assumed that he was applying for “the job”
vacated by Captain Gillard. If Master Sergeant Pack was promoted to some
other job, he does not seem to know it.
      Taking the evidence and reasonable inferences in Lieutenant McMullin’s
favor, a factfinder could find that (1) there was one job opening; (2) Lieutenant
McMullin learned of that vacancy despite the Department’s failure to provide
her access to the Position Open Notice; (3) Lieutenant McMullin applied for
that open position; (4) Colonel Berry received Lieutenant McMullin’s
application and knew that Lieutenant McMullin was qualified for the job; and
(5) Colonel Berry knew that the position was vacant, so the letter had meaning
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                                       No. 14-60366
to him—that is, he understood that Lieutenant McMullin was applying for the
Director’s position vacated by Captain Gillard.                 A factfinder could also
reasonably infer that (6) Colonel Berry took no action initially with respect to
Lieutenant McMullin’s application because the Director’s position had not yet
been “posted,” but (7) for some reason, Colonel Berry continued to ignore
Lieutenant McMullin’s application after the Position Open Notice was released
despite his policy to ignore early arriving applications only “until the position
is posted.” Emphasis added. Finally, a factfinder reasonably could infer that
(8) Colonel Berry intentionally failed to schedule Lieutenant McMullin for an
interview and, instead, (9) interviewed Master Sergeant Pack and then (10)
promoted him to the lieutenant rank 11 before (11) appointing him as Director.
Viewed in Lieutenant McMullin’s favor, as we must in reviewing the
Department’s summary-judgment motion, these facts and reasonable
inferences could support the conclusion that Lieutenant McMullin applied for
the Director’s position and was rejected. 12 These are, as we have said, issues
for a factfinder to resolve, as is the ultimate question of whether the
Department discriminated against Lieutenant McMullin based on race in
violation of Title VII.




       11  As master sergeant, Pack was not eligible to become captain (he had to first serve
as a lieutenant). Lieutenant McMullin, by virtue of her higher rank, was eligible to become
captain at any time.
        12 The Department makes the additional argument that Lieutenant McMullin wanted

to be elevated to the rank of captain and, therefore, did not apply for (and would not accept)
the Director job if she had to remain a lieutenant. This fact-based argument does not view
the record in Lieutenant McMullin’s favor. Reading the record in Lieutenant McMullin’s
favor, Lieutenant McMullin wanted Captain Gillard’s vacated job—whatever the rank. She
assumed it would be a captain-level job because it had been for at least twenty-five years
(almost her entire tenure with the Department), but that was secondary to her desire to be
elevated to the Director’s position.
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                                      No. 14-60366
B.    Employer’s Proffered Reason

       Given that the summary-judgment evidence demonstrates a prima facie
case of race-based discrimination, the Department had the burden to produce
or point to evidence of a legitimate, non-discriminatory reason for its decision
to not promote Lieutenant McMullin. See Burrell, 482 F.3d at 411-12.
       In its summary-judgment brief in the district court and its brief on
appeal, the Department perfunctorily states that it “has provided a legitimate,
non-discriminatory reason for its decision to promote [Master Sergeant] 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 Lieutenant McMullin’s
prima facie case, which, as discussed above, is sufficient to withstand summary
judgment and take this case to a factfinder. 13

                                  IV. Conclusion

       The district court erred in granting summary judgment in the
Department’s favor because (1) the summary-judgment evidence, viewed in
Lieutenant McMullin’s favor, establishes a prima facie case of race-based
discrimination and (2) the Department failed to proffer a legitimate, non-



       13 Perhaps the Department means to suggest that the reason for its employment
decision was that Lieutenant McMullin did not apply for the job and/or was not rejected from
it. However, those issues go to Lieutenant McMullin’s prima facie case, which are discussed
thoroughly above. The Department had the burden to articulate a reason, supported by
record evidence, for its decision to hire Master Sergeant Pack rather than Lieutenant
McMullin. The Department failed to even attempt to do this. And, because the Department
did not provide a legitimate, nondiscriminatory reason for promoting Master Sergeant Pack
rather than Lieutenant McMullin, we do not reach the pretext portion of the McDonnell
Douglas framework.
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                                No. 14-60366
discriminatory reason for its promotion decision. We VACATE the district
court’s summary-judgment order and REMAND the case for trial or other
proceedings not inconsistent with this opinion.
                                                  VACATED and REMANDED.




                                      16
