Monday, September 21, 2015

Mississippi Department of Public Safety settles reverse discrimination lawsuit.

Mississippi Highway Patrol Lieutenant Gayle McMullin settled her racial discrimination lawsuit against the Mississippi Department of Public Safety Friday afternoon.  The terms of the settlement were not disclosed. The case was scheduled to go to trial today in U.S. District Court.  The case has been completely ignored by local media.The latest court filing states:

Minute Entry for proceedings held before District Judge Carlton W. Reeves: In Chambers Conference held on 9/18/2015. Appearances: Dennis L. Horn and Peter W. Cleveland. Case has settled; Counsel to submit agreed order of dismissal to the Court.
Sources informed JJ that the state tried to settle the case earlier but refused to pay for Lieutenant McMullin's attorney's fees.  That issue was apparently resolved Friday. 

Colonel Don Berry
Lieutenant McMullin claimed Mississippi Highway Patrol Colonel Don Barry discriminated against her when he promoted Master Sergeant Marshall Pack to the vacated position of Training Director. The plaintiff is white while Colonel Berry and Master Sergeant Pack are black. She argued -and two courts agreed- she was better qualified for the job. U.S. District Judge Carleton Reeves dismissed her case with prejudice on a motion for summary judgment but the U.S. Fifth Circuit Court of Appeals reversed Judge Reeves and ordered him to hold a trial. Judge Reeves is black and a former president of the Magnolia Bar in Jackson.  However, the Fifth Circuit took the unusual step of publicly correcting Judge Reeves.

Lt. Gayle McMullin
 Captain Chris Gillard was promoted from the position of Director of the HP Training Division in February 2012.  Leftenant McMullin  started her MHP career in 1987.  She was assigned to the training division in 2000 and remained there until 2012- after she applied to the vacancy.  She was promoted to Leftenant in 2005.  She followed standard procedure and sent a letter of interest in the vacant position to Colonel Berry, DPS Commissioner Santa Cruz, and MHP Legal Liason Natalie Holmes on February 27, 2012.  However, Colonel Berry tabled the letter as the job had not yet been "posted".  Colonel Berry then informed the Leftenant on March 19 that he was assigning her to MHP HQ to train dispatchers.  Thus, Leftenant McMullin went from training law enforcement officers in firearms, drug interdiction, K-9 patrol, and other areas of law enforcement  to training dispatchers.  Pay attention to that date: March 19.

Colonel Berry  ordered the department to issue a position open notice on March 26, 2012, one week after the transfer of Leftenant McMullin.   It stated applications would be accepted until March 30.  However, the standard procedure apparently dictates that MHP sends a position open notice via email, mail, personal phone calls, and messages over the dispatch system.  MS Pack testified he thought his notice was sent via email or mail to his home address.  Leftenant McMullin testified she received no personalized notice.  The department provided no proof that it sent her such a notice.

However, the department did claim in its discovery responses that it faxed the notice " to all troop dispatch centers for dissemination to all troopers including McMullin.   However ( and this is an important fact):

 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 Leftenant McMullin was working. *
*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 fax notices.  The only other applicant, James Walker, was then working for Troop C, another location that received the faxed notice."  

Hon. Carlton Reeves
 The Fifth Circuit opinion stated that the department ignored its own notification requirements  and that there was "no evidence" that the notice was ever sent in any form of communication to Leftenant McMullin despite her written expressed interest in the job.    MHP interviewed the two applicants on April 10.  Leftenant McMullin was not interviewed.  Colonel Berry told MS Pack the same day as his interview that he would be promoted to the position of LE-Director/Training (LE is Leftnenant.).   Master Sergeant Pack became a Leftenant and Training Director on May 1. 

Pack had a rather colorful history at the Mississippi Highway Patrol and Mississippi Bureau of Narcotics.  He was fired twice while at MHP.  He was fired in 1995 for having sex with a confidential informant BUT he was reinstated because other officers who liked to have sex on the job were not fired.  He was fired again in 2001 for um, "seizing cash from a potential target without accounting for the seizure", participating in sexually explicit behavior during a vacation in Florida, and not reporting drug activity while on said vacation.  However, he appealed his dismissal and won reinstatement and back pay. 

Colonel Berry actually testified that "he did not know that Master Sergeant Pack had been fired before he promoted him ...but Colonel Berry added that the prior terminations and misconduct would not have affected his decision.."  (That is nice to know.  Why even conduct background checks?)

A Captain has served as training director for at least twenty-five years.  However, Colonel Berry sought to fill the position with a Leftenant (according to the notice.).  Colonel Berry tried to say there were two positions- Leftenant and Captain- even though the Director has always been a Captain.  No evidence was ever provided of showing the Training Director had been a Leftenant nor were there two director positions (see pate 9 of the 5th Circuit opinion below).  The court used the words "manipulative reasoning  to obfuscate the actual facts" on page 10.

Leftenant McMullin filled an EEOC complaint a month later.  She sued DPS on January 31, 2013 after receiving permission from the EEOC to do so (as EEOC had taken no action for 180 days after the complaint was filed).  Both sides engaged in discovery and then DPS filed a motion for summary judgment.  Judge Reeves agreed with DPS and dismissed her lawsuit with prejudice on May 6, 2014.  Translation: No need for a jury.  This is a bogus case that should never have been filed. Please don't come back to this courtroom.

Judge Reeves  said  she did not create a genuine issue of material fact and thus was not entitled to a
trial by jury.  He said she did not apply for the position of Leftenant Training Director and pointedly refused to do so.  He said she admitted in her deposition that she wanted a "promotional transfer" and was only interested in the Captain's position." He said that Sergeant Pack responded to a "position open notice" sent out to all DPS personnel.  He ruled she made "arguments laden with conspiracy oriented details".   The plaintiff argued that Colonel Berry promoted Pack to the Leftenant position so he could later promote him to the Captain position.  The judge called this argument "conjecture" and said she must present "specific facts which are more than 'conclusion allegations and denials, improbably inferences, unsubstantiated assertions, and legalistic argumentation."  The only thing missing was "please get lost and don't waste our time."    Judge Reeves admitted Pack was acting as both interim Captain and Leftenant until a Captain was appointed.

 Judge Reeves finished his drowning of Leftenant McMullin's claim with this tidal wave of dicta:

 Defendants’ intentions are clear: MDPS sought to fill two separate positions, a Training Director Captain and a Training Director Lieutenant. As Berry explained in his sworn testimony, MDPS wanted to hire its Lieutenant before it filled in the Captain’s slot. See Berry Dep. at 33-4. Pack was hired as the Training Director Lieutenant and serves as the sole Training Director of the Highway Patrol’s Training Division until a new Captain is appointed. She was not considered for the position, because she did not apply for the Lieutenant position. Moreover, she was not interested in that position. Therefore, she has never been rejected. Accordingly, Defendants’ motion for summary judgment is hereby GRANTED.

 Leftenant McMullin did not take her courtroom beating lying down but instead appealed to the Fifth Circuit Court of Appeals.  Judge E. Grady Jolly and two other judges completely overturned Judge Reeves and sent the case back to him with specific instructions on how to conduct the case. 

The opinion states there is no "direct evidence that" the plaintiff was denied a promotion because she was white.  However, the court clarified that statement in the next sentence:

That is to say, the defendants expressed no overt, race-based hostility towards Leftenant McMullin; nor did they epxress any overt race-based support in favor of Master Sergeant Pack.

However, the court ruled there was
more than ample circumstantial evidence to create material issues of facts from which  a jury could find that Leftenant McMullin was a victim of racial discrimination. 

 The court said she must establish a prima facie of discrimination and thus shift the burden of proving there was no such discrimination to DPS.  The court said that the plaintiff was qualified for the position.  However, it ruled there was "a sharp disagreement as to whether Leftenant McMullin applied for the Director's position and, relatedly, whether she was ever rejected for the position."

The court ruled that Colonel Berry caused a bit of confusion by his attempts to "obfuscate" as to whether there were either one or two director's positions.  DPS has never stated there were two positions.  The court said it appeared there had only been one director position until the current controversy.  The court then points out:

the record lacks evidence that there was a vacancy in the "Leftenant" position.  The only vacancy that can be inferred from the record- when viewing the record in favor of Leftenant 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 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.
 The court states there was only one job opening and that the plaintiff discovered the vacancy despite "the department's failure to provider her access to the position open notice".   The plaintiff applied for that position and Colonel Berry knew it.   The court also decreed that a "factfinder" could conclude that the good Colonel ignored her interest in the position and "intentionally failed to schedule" her for an interview.  The court did not say that is exactly what happened but that it was a question for a "factfinder" to determine and thus was a question for the jury.  The court even said it would not have been that hard for the department to defend itself.  Indeed, it stated the "burden was light" and it only had to provide "evidence of a non-race-based reason for its employment decision yet, it wholly failed to do this." 

The court also said that the failure to check Pack's background was more evidence "of discriminatory motive based on race".

Kingfish note:  The oral arguments at the Fifth Circuit show how weak the state's case really was.  The judges literally laughed the Department of Public Safety out of court.  The recording of the oral arguments can be listened to at this earlier post.  The case also raises questions as to Judge Reeve's impartiality on race discrimination cases.

Earlier posts:
Is the Mississippi Highway Patrol racist or merely "fumbling" and bumbling?
Reeves sets trial.
Update on MHP discrimination case.


Anonymous said...

So does McMullin get the job?

Anonymous said...


Why does Phil continue to leave Berry and Santa Cruz in charge? They cause nothing but controversy at the agency

Is this the same lady that acts as lobbyist for troopers during session? Why do troopers elect her if she sued them?

Anonymous said...

So.....what was the settlement??

Anonymous said...

She secured them a hell of a raise this last session.

Kingfish said...

What is disappointing is seeing this case ignored by the entire media. You would think it would earn their attention.

Anonymous said...

Having been in his courtroom before, I have grave questions about his impartiality period. He just seems to look for the quickest and easiest way to get a case off his docket. I'd love to know what his overturned rate is with the 5th circuit.

Anonymous said...

"What is disappointing is seeing this case ignored by the entire media. You would think it would earn their attention. "

Victim = white therefore no racism possible. MSM rules.

Any column on this by that old goat Bill Minor?

Anonymous said...

So what exactly is reverse discrimination? Why cannot it just be discrimination? I am lost.

Anonymous said...

If the races in this case were reversed, it would be Headline News, complete with Jesse and Al flying down to MS. But because a white has been discriminated, it's not newsworthy...especially to Donna or the Clarion Ledger

Kingfish said...

Or if the CL trots out Jimmie Gates to cover the story.

Anonymous said...

You expect too much Kingfish from the local media. Sam Hall wants the Mattiace materials not kept from the public but says and does nothing about Yarber's keeping the latest Siemens documents out of public view.

Anonymous said...

The entire administration needs to go! How about the 3 year female trooper that just got appointed to MBI without interview or testing over all the troopers that tested and is on the promotion list?

Anonymous said...

Hmmm - why can't the taxpayers see what all this bullshit cost the state? Poor management can be quantified, and the public needs to know... One also has to wonder how this will influence Penny Corn's case. I presume that once the election is in the rear view mirror, so will be Santa Cruz and Berry. It's a shame what's become of that organization.

Anonymous said...

@ 2:44 - The whole hiring/promotion process at DPS is a joke, just look at the guy that was promoted to deputy director at homeland security, its my understanding that he wasn't even qualified to make the interview list.

Anonymous said...

I hope the employees at the Department of Employment Security ( old Employment Security Commission) are following this case.

Anonymous said...

The state of Mississippi does not want to see the advancement of white women in anything. For any woman who holds public office to even positions such as what Lt. McMullin tried to advance to, they receive so much flack from the public to the department heads. It's just not very excepted and I do not understand why, it is just sad that our state does not want to see our women advance in anything, and yes this came from a man!!!! #secretadmirer

Kenry Hirksey said...

The whole thing could be overturned (thrown out) due to repetitive use of the word 'leftenant'. There is no such job title, nor has anyone ever had that job title entered onto any document in his or her personnel file.

And what's the bitch about Employment Security? Every democrat governor in the past twenty five years has put women in charge of the agency and throughout it. Even Brother Barbour fast-tracked Fitch through there for a couple of months. Of late, however, the leadership ranks have been saturated with black men who had no prior knowledge that the agency even existed. The difference is that these particular positions are 'non status' and do not have the protection of the State Personnel Board and are not announced for competitive application.

Anonymous said...

I think the best part was that he was fired for having sex with a CI but rehired because everyone else a DPS did it. What a great State Agency.

Anonymous said...

Leftenant: Maybe they were confusing MHP with RCMP.

Anonymous said...

Can the settlement agreement be acquired through a public records request even though the settlement is supposed to be confidential?

Spotlight on Feel said...

Phil Bryant has managed, so far, to skate on this whole scenario. How will he continue to avoid public scrutiny since all the players are under his command?

Anonymous said...

September 21 @ 11:09

Got to call B.S. on your point when it comes to Mississippians not wanting to see the advancement of white women. A fair number of the state agencies have white female executive directors. You have two white women holding state wide office. A goid number in our state legislature. This case is an exception to the rule.

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