It seems Colonel Don Berry doesn't want to do right even when he promises to do so. Captain* Gayle McMullin filed a motion to enforce a settlement agreement against the Mississippi Highway Patrol and Department of Public Safety yesterday in U.S. District Court. The agency settled a racial discrimination lawsuit with Ms. McMullin in October. The settlement must have been favorable to Captain McMullin as she now serves as MHP Training Director. The court notice states:
Sealed motion to enforce settlement filed by Gayle Miller McMullin. (Attachments: #(1)Exhibit A, #(2) Exhibit B, #(3) Exhibit C, #(4) Exhibit D)
Ms. McMullin filed a motion to seal part of the case (It is assumed to be a settlement agreement) in November. Judge Carlton Reeves approved the motion. He stated in his short order that the court retained the power to enforce the settlement agreement.
|Colonel Don Berry</>|
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."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 Lieutenant (according to the notice.). Colonel Berry tried to say there were two positions- Lieutenant and Captain- even though the Director has always been a Captain. No evidence was ever provided of showing the Training Director had been a Leiutenant 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.
Lieutenant 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 Lieutenant 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 Lieutenant 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 Lieutenant until a Captain was appointed.
Judge Reeves finished his drowning of Lieutenant 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.
Lieutenant 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 Lieutenant 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".
*Lieutenant McMullin now holds the rank of Captain.
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. Now it appears Colonel Berry has no honor as he is being taken to task for not honoring the settlement agreement.
Is the Mississippi Highway Patrol racist or merely "fumbling" and bumbling?
Reeves sets trial.
Update on MHP discrimination case.