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Harville v. City of Houston, Mississippi

United States Court of Appeals, Fifth Circuit

August 16, 2019

MARY PAULA HARVILLE, Plaintiff - Appellant

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

          Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.


         Mary Paula Harville appeals the district court's grant of summary judgment on her race discrimination and retaliation claims under Title VII and 42 U.S.C. § 1981. Harville was terminated from her position as deputy clerk with the City of Houston, Mississippi in 2015 as part of a group of layoffs designed to offset the City's budget shortfall. Because Harville fails to present a genuine issue of material fact that her race was a motivating factor in her termination or that there was a causal connection between her EEOC complaint and that termination, we affirm.


         Harville, a white female, was hired as a deputy clerk by the City of Houston in 2005. She worked in that position for approximately ten years. In September 2015, the City was facing a budget shortfall and the Board of Aldermen voted unanimously to eliminate the positions and salaries of four City employees, including Harville's position. Harville's claims against the City arise from that termination.

         At the time of her termination, there were four deputy clerks in the clerk's office. The deputy clerks were cross-trained, but each maintained primary duties. Harville's primary duties included processing and invoicing ad valorem, school, and privilege taxes. During her employment as a deputy clerk, Harville enjoyed positive reviews from her superiors.[1] With respect to the other deputies' duties, Barbara Buggs-who was hired before Harville-was responsible for payroll and insurance, tax receipting, voter registration, and human resource tasks. Kathy Smith was also hired before Harville and her primary duties included serving as the Municipal Court Clerk. Shequala Jones was the only deputy clerk hired after Harville, in 2007, and she was primarily responsible for collecting water and sewage fees. Smith is also white while Buggs and Jones are black. Two of the deputy clerks are related to Alderwoman Sheina Jones; Buggs is her sister and Jones is her first cousin.

         In the fall of 2015, facing a budget shortfall, the City's Board began working on a budget for the next fiscal year. Harville was aware of the financial problems and the City Clerk at the time, Margaret Futral, told Harville in August or September that the Board was considering reducing the number of deputy clerks from four to three. In preparation for the September 15, 2015 board meeting, Futral created a document explaining the steps that had been taken to manage the budget, advocating that the Board keep Harville's job, and proposing a solution of cutting each deputy clerk's hours by five. Futral believed Harville's tax duties were "crucial" and no other deputy clerk could perform those tasks. In contrast, Futral noted that Jones had been out for maternity leave for six weeks and the other deputy clerks had adequately covered her job responsibilities. Futral stated that she would resign if the Board chose to terminate Harville, explaining that she would be unable to perform the duties of City Clerk with the added responsibility of Harville's duties.

         At the September 15 meeting, the Board entered into an executive session to consider the layoffs. Echoing Futral, Mayor Stacy Parker also suggested that instead of eliminating the positions of four city employees, the Board consider other potential budget savings like cuts to hours and insurance. Alderman Uhiren stated that he considered Harville's job seasonal because it was related to tax collection-Futral disputed that it was seasonal, and again advocated for cutting hours to generate the same cost savings. Futral also suggested that it would make more sense to cut Jones's job, because the other deputies had covered her responsibilities during her maternity leave-Futral did not know how to perform Harville's job. Alderwoman Jones responded that Buggs (her sister) had trained Harville and knew the job.[2] In a final attempt to save Harville's position, Futral asked if all four deputies could remain employed if she resigned (meaning one deputy would be promoted to City Clerk). The Board determined that if Futral resigned the City would post the clerk's job rather than promoting from within. The Board ultimately rejected all of the proposed solutions that would preserve Harville's job and voted unanimously to eliminate four full-time positions, including Harville's.[3]Immediately after the meeting concluded, Harville spoke to Mayor Parker and Futral. According to Harville, Parker told her she was terminated because the Board had determined that her job was seasonal. The Board has not posted or filled Harville's position since her departure. Harville filed a charge of discrimination with the Equal Employment Opportunity Commission on November 3, 2015-alleging she was discriminated against on the basis of her race and age-and, upon her request, was given notice of her right to sue in February 2016.

         Futral resigned in March 2016, approximately six months after Harville's termination. The Board accepted her resignation and voted to advertise the position of City Clerk. The advertisements ran in the local newspaper, the Chickasaw Journal, starting in March 2016. Harville submitted an application each time the position was listed. Although the City accepted applications between March and November 2016, it chose not to interview any candidates for the position because of the cost-savings of the City Clerk's salary. During the Board's July 2016 meeting, the Board discussed the possibility of contracting an accountant part-time to prepare the City's budget rather than hiring a full-time clerk. The August 2016 advertisement was revised accordingly to include preferred qualifications of being a CPA or having a four-year degree in accounting and to reflect that the position was either part-time or full-time.[4] The Mayor successfully prepared the 2017 budget while the clerk position was vacant, but because the task was time-consuming for the Mayor, the Board voted to advertise the position again. After applying for the posted position in March and May and not receiving an interview, Harville filed a second EEOC charge of discrimination on August 1, 2016, alleging that the City had refused to interview her in retaliation for her earlier EEOC charge and her filing of the complaint in this case.

         After the position was posted a final time in September, the Board reviewed between fifteen and twenty applications and chose to interview two candidates: Harville and Lisa Sanford. Sanford held a Bachelor of Science in Accounting from Mississippi University for Women and had over thirty years of accounting experience.[5] The Board asked the same questions of both candidates. After the interviews, the Board voted unanimously to hire Sanford on November 15, 2016. On November 29, 2016, Harville filed a supplemental EEOC charge, informing the EEOC of the advertisement with revised qualifications, her interview, and Sanford's hiring. At her request, she received a second notice of her right to sue in February 2017.

         Harville filed this suit in the Northern District of Mississippi in April 2016 alleging racial discrimination under Title VII and 42 U.S.C. § 1981 and age discrimination under the ADEA. Harville amended her complaint in February 2017 to add her claim for retaliation under Title VII, based on the City's decision not to hire her for the clerk position. The district court granted summary judgment on all claims on January 30, 2018. This appeal followed.[6]


         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.[7] Summary judgment is appropriate only if, viewing the evidence in the light most favorable to the non-moving party, "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."[8] "A fact is material if it 'might affect the outcome of the suit' [and a] factual dispute is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"[9]


         Harville's Title VII claim relies on circumstantial evidence and is therefore subject to the burden-shifting framework set out in McDonnell Douglas Corp. v. Green.[10] Under that framework, Harville has the initial burden to establish a prima facie case of discrimination-she must produce evidence that she (1) is a member of a protected class, (2) was qualified for the position that she held, (3) was subject to an adverse employment action, and (4) was replaced by someone outside of her protected class or treated less favorably than other similarity-situated employees who were not in her protected class.[11] The prima facie case, once established, creates a presumption of discrimination and the burden then shifts to the City to articulate a legitimate, non-discriminatory reason for the adverse employment action.[12] If the City is able to articulate a legitimate, non-discriminatory reason for the termination, the burden shifts back to Harville to "demonstrate that the employer's proffered reason is a pretext for discrimination."[13]

         The district court held that Harville had made out a prima facie case for race discrimination. In its brief, the City urges us not to accept that finding on appeal, suggesting that Harville fails to make out the fourth element of her prima facie case because Harville was not replaced and she is unable to show that a similarly-situated employee was treated more favorably. It is undisputed that Harville was not replaced, and the City contends she failed to show that a similarly-situated employee was treated more favorably. Principally, the City argues Shequala Jones is not a proper comparator because Jones and Harville had different levels of education and job responsibilities.

         The City interprets that fourth prong with too much granularity. To establish the fourth prong of her prima facie case here, Harville must demonstrate she was treated less favorably because of race than were other similarly situated employees who were not members of that protected class.[14]We have emphasized that "nearly identical" is not synonymous with "identical."[15] "The employment actions being compared will be deemed to have been taken under nearly identical circumstances when the employees being compared held the same job or responsibilities, shared the same supervisor or had their employment status determined by the same person, and have essentially comparable violation histories."[16] Here, Harville and Jones held the same position-both were deputy clerks. And while each deputy clerk had specialization in certain tasks in the office, the four employees were cross-trained, evidenced by the lists of job duties and the fact that three deputy clerks were able to cover Jones's duties adequately while she was on maternity leave. Further, all four deputy clerks had the same supervisor. The district court was correct in concluding that Harville has made out the fourth prong of her prima facie case-she has produced sufficient evidence that would permit a reasonable fact-finder to conclude that she and Jones are similarly-situated.[17] Based on their shared characteristics, a reasonable jury could conclude that the City engaged in disparate treatment.

         Having established her prima facie case, the burden shifts to the City to articulate a legitimate non-discriminatory reason for the adverse employment action. Here, the City met this burden by offering sufficient evidence of its non-discriminatory reason for terminating Harville: the City was facing a budget shortfall and chose to implement a reduction in force. The City chose Harville's position-rather than one of the other three deputy clerks-because it believed her primary duties (taxes) were seasonal. The burden then shifts back to Harville to demonstrate that the City's proffered reason was a pretext for discrimination.

         The district court held that Harville failed to present evidence that the City's non-discriminatory reason for her termination was merely a pretext and therefore did not meet her burden under the McDonnell-Douglas framework. On appeal, Harville argues that the district court misapplied the Supreme Court's precedent in Reeves v. Sanderson Plumbing Products, Inc.[18] Harville faults the district court for failing to draw all reasonable inferences from the evidence she presented, primarily the testimony of the former city clerk, Futral. She urges that she presented adequate evidence that the City's non-discriminatory explanation was pretextual because Futral testified that Harville's job was not seasonal and would be the hardest job to replace because she did not know how to complete Harville's tax duties. Harville also takes issue with the district court's conclusion that Harville conflated discrimination with nepotism. She asserts that it is the province of the jury to make such an inference and suggests that even if it was legitimate to infer the decision was motivated by nepotism, making kinship to a black alderperson a job qualification itself discriminates on the basis of race. Principally, Harville suggests that the district court's conclusions were in fact jury questions.

         In Reeves, the Supreme Court considered an employee's age discrimination claim and clarified how a plaintiff may establish that an employer's nondiscriminatory explanation is pretextual.[19] The Court held that a plaintiff's prima facie case of discrimination, taken with sufficient evidence from which a reasonable factfinder could reject the employer's nondiscriminatory explanation for its decision, can be adequate to sustain a finding of liability for intentional discrimination.[20] The Court warned, however, that such a showing will not always be adequate to sustain a liability finding.[21] For example, "no rational factfinder could conclude that the action was discriminatory . . . if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, ...

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