IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-SA-01646-COA OLA C. KIRK APPELLANT

v. MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY APPELLEE

DATE OF JUDGMENT: 10/08/2015 TRIAL JUDGE: HON. TOMIE T. GREEN COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: JOHN M. MOONEY JR. ATTORNEY FOR APPELLEE: JOHN G. (TRAE) SIMS III NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES TRIAL COURT DISPOSITION: AFFIRMED ORDER OF THE EMPLOYEE APPEALS BOARD DENYINGAPPELLANT’S GENDERDISCRIMINATION CLAIM DISPOSITION: AFFIRMED - 05/30/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. WILSON, J., FOR THE COURT: ¶1. In June 2013, the Mississippi Departm ent of Public Saf

ety (MDPS) announced that there was an opening f

o r the position o f lieutenant in t he driver services d i v i s i o n of the Mississippi Highway Saf

ety Patrol (MHSP). MDPS i nterviewed s ix qualif ied a pplicants f

or the p osition and s elected Master Sergeant Anthony Cunningham

— a 51-y ear-old Af

ricanAm erican m ale w ith 26-plus y ears of service at MDPS—f or t he p rom otion. Master Sergeant Ola Kirk—a 57-y ear-old Af rican-Am e r i c a

n fe m a l e w i t

h 2 5

. 5 y e a rs of service at M DPS—wasidentif

ied as the f

irst “alternate choice” f

or the prom otion, but she was not prom oted. ¶2. Kirk f

iled a grievance, alleging that she was denied t he prom otion because of her sex.
MDPS denied the grievance, and Kirk appealed to t he Mississippi Em ploy ee Appeals Board (EAB). Following a two-day hearing bef ore an EAB heari n g o f

f i cer, the hearing of

f icer entered an order deny ing Kirk’s claim

. T he h earing of f icer f ound that MDPS had articulated a legitim ate, nondiscrim inatory reason f or its decision to prom o te Cunningham rather than Kirk. The h e a r i n g of

f icer f urther f ound that K irk f

ailed to m e et her b urden of proof that
MDPS’s s tated reason w as a p retext f or i ntentional discrim ination. T h e en b anc EAB af f irm ed the h earing of

f icer’s f indings and decision, and the Hinds County Circuit Court subsequently

af f irm ed the decision of

the EAB. ¶3. On appeal t o this C o u r t , K i r k a r gues that MDPS f ailed t o a rticulate a

legitim ate,

n o n d i s c r i mi n atory reason f or its decision. She also a rgues t hat she w as clearly m ore qualif ied t han Cunnin g h a m , t h at MDPS’s s tated reason f or prom o ting Cunningham was a pretext f or intentional discrim ination, and that the EAB’s d ecision i s not supported by substantial evidence. As to the f orm er issue, we agree w ith the E AB that MDPS’s stated

reason f or its d ecision—that Cunningham scored higher than Kirk on an interview designed to test the candidates’ knowledge of subjects relevant to the open position—is a legitim ate and nondiscrim inatory reason f or an em p loy m ent decision. On the latter issue, the EAB is the trier of f

a ct and the judge of witnesses’ credibility , and we f ind that its decision deny ing Kirk’s claim

is supported by

substantial evidence. Accordingly , we af f irm

.

2FACTS AND PROCEDURAL HISTORY

¶4. In May 2013, L ieutenant Anthony W right r etired f rom the driver services division of
MDPS. O n June 7, 2013, MDPS distributed a “Position Open Notice” seeking applications

to f ill W right’s position. The notice stated that “[ a]ny s worn of f i cer w i t h i n t he [ MHSP]

m eeting the qualif

ications [ could] apply .” The pri m a r y minim um qualif

i cations f or the position were seven y ears of service as a sworn of f i c e r with MDPS, including at least two
y ears “in l i n e o r f

u nctional supervision as a m a ster sergeant.” The notice stated that there would be oral interviews f or q u a l if ied applicants, a nd it i dentif ied potential sources of interview questions, including laws and policies related to the driver services division. ¶5. Six applicants were deem ed qualif ied a nd invited to o ral i nterviews, which were held

on July 17, 2013. T he candidates included Kirk, C unningham , and f our other m en. Kirk and Cunningham

are both Af

rican-Am erican. Kirk was f if ty -seven y ears old at the tim e of the interviews, w hereas Cunningham was f if ty -one. Both Kirk and Cunningham have f our-y ear college degrees, and both have been em ploy ed by MDPS since 1987. Both have served in supervisory roles and served as acting lieutenant in the driver services division subsequent

to W right’s retirem e nt. K irk was prom oted to m aster sergeant in 2002, while C unningham

was prom oted to that rank o n April 1, 2010. C unningham had r eceived f ive work-related

com m endations, w hile Kirk had received o ne. The other f our candidates had between

seventeen and twenty -six y ears of service a t M D P S and between s ix and thirteen y ears of service at the rank of

m aster sergeant.

3¶6. The d irector of the driver services division, Major Christopher Gillard, 1 chaired the

interview panel. Captain Printiss Parker and Lieutenant Jay Kelly , w ho also serve in the driver services division, were also on the panel. The panel draf ted a list of s ix questions to ask the applicants during their oral interviews. All six q uestions related to the operations of the driver services division or laws, policies, or procedures applicable to the d ivision. The questions were not distributed to any of the candidates prior to the interviews. ¶7. At the beginn i n g o f each c andidate’s interview, G illard gave a general o verview of h o w t h e interview would proceed, and the panel m em bers t hen took t

urns asking the s i x questions. The panel m e m bers scored each candidate’s answer to each question on a scale of 1 to 5. Af

t er each candidate lef

t the room , the panel would com p are scores a n d discuss the reasons f

or any dif

f erences of m ore than one point on a particular question. The candidate’s total score was then tallied based on each panel m em ber’s scores. ¶8. Af ter the interviews, G illard provided Colonel Donnell Berry , Director of t he MHSP, with a list of t he t op t hree applicants f or t he position. Gillard identif ied Cunningham as his

“ f irst choice” f

o r p rom otion and Kirk as his f irst “alternate choice.” Gillard r a n k e d t h e candidates b ased s olely on t heir interview scores. Cunningham received the highest score (73 out of 90 possible points), while Kirk received the second-highest score (64). Berry accepted Gillard’s recom m endation and prom oted Cunningham

. ¶9. On July 24, 2013, Kirk f iled a grievance w ith MDPS alleging that she had b een denied

1 M aj o r G illard su b seq u en tly w as ap p o in ted A ssistan t C o m m issio n er o f Publ i c Sa f e ty an d D i recto r o f

th e M H S P an d p ro m o ted to th e ran k o f co lo n el. 4the prom otion based o n her race, age, or gender. Af ter M DPS denied her claim , Kirk

a p p e a l e d to the EAB. A hearing was held bef ore a n E AB hearing o f

f icer on M a r c h 7 a n d August 21, 2014. Kirk, Cunningham , Gillard, Parker, K elly , a nd B erry all testif ied. During the h earing, Kirk’s attorney s tated that she was only pursuing he r c l a i m of gender discrim ination, a s Cunningham was also Af rican-Am erican and at l east f o rty y ears of age. MDPS m aintained that C unningham was prom oted becaus e h e s c o r e d higher on his interview than Kirk, not because of discrim i nation. ¶10. At the hearing, Gillard testif ied that the prom o tion was governed by MDPS General Order No. 22/02, w hich governs “appointm ents” to “ specialized positions.” The O rder states that its p urpose “ is to provide the Director o f [ MHSP] and the Com m issioner o f Public Saf ety
necessary . . . f

l exibility i n f

illing staf f , technical, a nd special duty positions taking into

account a candidate’s skill, knowledge, and prof essional experience.” The Order provides that candidates f

or such positions m

ust hold the rank of m a ster sergeant o r h igher and be eligible f o r prom otion to lieutenant. The Order f urther p rovides tha t , af

ter reviewing candidates’ qualif

ications, the Director of MHSP, w ith the approval of the Com m issioner,

w i l l m a ke a

ppointm e nts t o f

ill specialized positions. Finally , the Order provides that, notwithstanding any other provi s i o n s o f t he Order o r G eneral Order No. 22/01, 2 the
Com m i ssioner, af

ter consulting with the Director of MHSP, “shall have t he a bility to

2 G en eral O rd er N o . 2 2 /0 1 estab l ish es g en e rally ap p licab le p ro ced u r es f o r p ro m o tio n o f sw o rn p erso n n el w ith in M D P S /M H S P b u t d o e s n o t g o v ern ap p o in tm en ts to s p ecialized p o sitio n s th at are su b

j ect to G en eral O rd er N o . 2 2 /0 2

.

5prom ote in rank sworn personnel possessing skill, knowledge, and prof essional experience to speciality

positions.” ¶11. Gillard testif

ied that a pplicants who satisf

ied the m inim

um qualif ications set f

orth in the open-position notice were invited to interview. He also testif i ed that his recom m endation

t o C o lonel Berry was based solely on the candidates’ interview s c ores because a l l t h e candidates interviewed “had already m et the m inim u m qualif ications.” Gillard testif

ied that the panel ranked Cunningham f irst and Kirk second based on the i r i n t e r v i e ws and not because of gender, a ge, or r ace. MDPS stipulated, and all o f its witnesses testif i ed, that Kirk is a n excellent e m

ploy ee and was qualif

ied f o r t h e position. MDPS sim ply def ended its decision to prom ote Cunningham based on his superior interview scores. ¶12. The interview ques t i o n s a n d t he interviewers’ scoring sheets were introduced into

e v idence. Cunningham received a higher overall score than K irk prim a r ily because the interviewers scored h is answers higher on question 2 , which concerned elig i b i l i t y f o r a learner’s perm i t, and question 4, which con c e r n e d p erm anent disability cards. The com m ents

on the i nterviewers’ scori n g s h e e t s a re lim i ted. The interviewers noted that Kirk “did not

a n s w e r q u e s t i ons c om

pletely ” or “f

ully .” The interviewers noted Cunningham ’s “knowledge and experience of

driver services.” ¶13. Gillard and Parker both testif ied that Kirk received a low score on question 2 because she star t e d t o a nswer correctly but then c hanged her answer and answered incorrectly

. Gillard a n d Parker b oth testif i ed that Kirk received a low score on question 4 because she

6stated that she d id not know the answer. Kelly testif ied on t h e s e c o n d d a y of the EAB hearing, t hirteen m onths af t er the interviews. He could not recall the specif ics of the candidates’ answers and c ould only testif y generally as why he would have scored an answer lower or higher. Gillard testi f i e d t h a t, im m ediately af

t er the interviews, he “personally ” “shredded” a ny additional notes taken b y the interviewers. He testif ied t hat he did so because the q uestions m ight be used a gain, and he did not want the answers to be disclosed. Gillard, Parker, a nd Kelly testif

ied that the interview p rocess f or this prom otion was consistent with
MDPS’s u sual practices. All denied that any candidate’s gender, race, o r age i nf luenced the interview process or their scoring. ¶14. K i rk testif

ied that she believed that she was the m ost q ualif i ed candidate, that sh e doubted that C unningham could have scored h i g h er than her on a f air test, and that she believed she should have been prom oted r ather t han him

. H owever, she acknowledged that she did not hear Cunningham ’s a nswers to t he q uestions. She also a cknowledged that the test questions were f

air and “all

. . . cam e straight f r om the policy and procedure book.” She also adm itted that s he was concerned about whether she answered question 4 c orrectly

. Kirk also testif i ed that there s hould have been a f e male on the interview panel, although she acknowledged that t here were no other f em a les in the driver s ervices division. Kirk testif ied that she believed she had “been discrim inated aga i n s t b y [ MDPS],” but s he was unwilling

to say that any of t he in t e r v i e w e r s or Colonel B erry were “sexist.” W hen pressed, she speculated that Parker had discrim inated against her, but only because he scored her lower

7than the other interviewers. Although all t hree i nterviewers s cored Cunningham higher than

Kirk, Kirk believed that Parker “was not f air about [ her] grading.” ¶15. Following the hearing, the EAB hearing of f icer perm itted t he p arties to subm it brief s and then entered a n order with detailed f indings of f

act and conclusions of l aw. H e f ound that Kirk had established a prim a f acie case o f discrim i nation because s he was a m em ber of

a protected class (a f

e m ale), she applied f

or and was q

ualif i ed f or the prom otion, she did not receive the prom o t i o n , a n d a person outside of the protected class (Cunningham , a m ale) received the prom otion. However, the hearing of f i cer also f ound t h a t MDPS articulated a legitima t e , nondiscrim inatory reason f or its decision to prom ote Cunningham ( his higher interview scores). F inally , the hearing of f icer f ound that K irk f

ailed to satisf

y her burden of
p r oof and persuasion that s he w as denied the prom otion because of her g ender and t hat
MDPS’s stated reason f

or prom o ting Cunningham was a p retext. Accordingly , the hearing of f icer dism issed Kirk’s claim with prejudice. ¶16. K irk appea l e d t h e h e a r i n g of f icer’s d ecision, but the e n banc EAB af f irm ed the hearing of

f icer’s f indings and conclusions. Kirk t hen appealed to circuit c ourt, arguing that the EAB’s decision was a rbitrary and capricious, was not supported by substantial e vidence, and violated her constitutional and statutory rights. However, the circuit court af f i rm ed the
EAB’s decision. K irk again f iled a tim ely

notice of appeal. On appeal, Kirk identif ies six issues, a ll of which relate to her two basic a r g u m ents that MDPS f ailed to articulate a legitim ate, nondiscrim inatory reason f or its decision to p rom ote Cunningham a n d that she

8m et her burden of proof and persuasion that MDP S ’ s stated reason f or its decision was a pretext f or discrim ination. W e address Kirk’s argum ents below.
DISCUSSION ¶17. Title VII of the Civil Rights A ct of 1964 p rohibits an e m ploy er f rom discrim inating against an em

ploy ee b ecau s e o f t he em ploy ee’s gender. 42 U.S.C. § 2000e-2(a)(1). “The Title V II inquiry is whether the def endant intentionally d iscrim inated against the plaintif f .” Alvarado v
. Tex. Rangers , 4 92 F.3d 605, 611 (5th Cir. 2007) (quoting Roberson v. Alltel Info.
Servs. , 3 7 3 F

. 3 d 6 4 7, 651 (5th Cir. 2004)). Mississippi law also prohibits i ntentional discrim ination against a state service em ploy ee because of the em ploy ee’s g ender. Miss. Code Ann. § 25-9-149 (Rev. 2010); see Miss. Emp’t Sec. C omm’n v. Collins , 629 So. 2d 576, 581 (Miss. 1993). ¶18. Kirk’s claim o f gender discrim ination is subject to “a precise schem e, or allocation, of the burdens of proof (both production and persuasion).” Cash D istrib. Co. v. Neely , 947
So. 2d 286, 292 ( ¶21) (Miss. 2007). This analy sis, of ten ref erred t o a s t h e “

M cDonnell Douglas burden-shif

ting f ram ework,” proceeds in three steps. See id. at 292-93 (¶¶22-23) (discussing McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973); Tex. Dept. of Cmty. Affairs v. B urdine , 450 U.S. 248 (1981)); see Alvarado , 492 F.3d at 611 (recognizing that the

sam e f ram ework applies to gender-discrim ination c laim s under Title VII when there is “no direct evidence of discrim i nation”); Miss. D ep’t of Human Servs

. v
. B a u m , 730 So. 2d 58,
63 (¶¶18-19) (Miss. 1 9 9 8 ) (apply ing the sam e f ram ework to a state em

ploy ee’s g rievance

9alleging d iscrim ination); Reid v. M iss. State Hosp./Miss. Dep’t of Mental Health , 53 So. 3d 823, 824-25 (¶8) (Miss. Ct. App. 2 011) (sam e). First, the em ploy e e m ust establish a prim a f acie case of d i s c r i mi n a t i o n. This required Kirk to show that she was a m em ber of a protected class, that she w as qualif ied f or the prom otion at issue, that she was not prom oted, and t hat a person o utside her protected class was prom oted. See Alvardo , 492 F.3d at 611.
MDPS does not dispute that K irk established a prim a f acie case, which created an i n itial “presum ption” of “im

perm issible discrim ination.” Neely , 947 So. 2d at 297 (¶37). ¶19. In the second step of the McDonnell Douglas f ram ework, t h e e mp l oy er bears “the burden o f producing a n explanation to r e b ut the prim a f acie case—i.e., the burden of
p r o d u c i ng evidence that the a dverse e m ploy m ent actions w ere taken f or a legitim ate, nondiscrim inatory reason.” St. Mary’s Honor C t r
. v
. H icks , 5 09 U.S. 5 02, 506 (1993) (quotation m arks o m itted). The em ploy er’s burden at this stage is a “burden of production ” only and “can involve no credibility assessm e nt.” Id. at 5 07, 509. This burden of production “necessarily precedes the credibility -assessm e nt stage.” Id. at 509. The def e ndant’s burden

at t he second s t ep is only “to introduce evidence which, taken as true , would permit the conclusion that there was a nondiscrim inatory reason f or the adverse action.” Id. ¶20. The third step of

the McDonnell Douglas f ram e work is the “credibility -assessm ent stage.” Id. If the def

endant c arries its step-two burden of production, “the plaintif f m ust then have an opportunity to p rove b y a preponderance of the evidence that the legitim ate reasons of f ered by the def

endant were no t i t s t r u e reasons, but were a pretext f or discrim ination.”

1 0Neely , 947 So. 2d at 2 93 (¶23) (quoting Burdine , 450 U.S. at 253). “The ultim ate burden of

persuading the trier o f f

act that the def

endant intentionally discrim inated against the plaintif f

rem ains at all tim e s with the plaintif f .” Id. ¶21. The “trier of f

a ct” in this case was the EAB. O n appeal f r om a d ecision of the EAB,

a “reviewing court m

ust af f irm the [ EAB] if [ its] decision was (1) s upported by s u bstantial evidence; (2) n ot arbitrary or capricious; (3) within the scope or p ower of the agency ; and (4)

not a violation of the aggrieved p arty ’s constitutional or statutory rights.” Ray v. M DPS , 172
So. 3d 182, 187 ( ¶15) (Miss. 2015). “[ The S u prem e] Court has h eld that substantial evidence

m eans evidence which

. . . af f o rds a substantial b asis of f act f rom w hich t he f

act in issue can be reasonably inf

erred.” Id. at 187 (¶16) (quotation m arks om itted). “ Substantial evidence exists so long as there is evidence that a reasonable m ind m ight accept as suf f icient to support a c onclusion.” Id. “The reviewing court is not authorized to substitute its j udgm ent f or that of the [ EAB] where there is substantial (that is, m ore than a scintilla of ) evidence to support the f

inding.” Id. (quoting Miss. Pub. Serv. Comm’n v. Merchants Truck Line Inc. , 598 So. 2d 778, 782 (Miss. 1 992)) (brackets om itted). The reviewing court also m ust bear in m i nd that “[ t]he EAB i s t he trier of f act as well as the judge of the witnesses’ credibility .” Id. at 1 88 (¶20) (quotati o n ma r k s om itted); a ccord, e.g. , Miss. D ep’t of W ildlife, Fisheries
& Parks v. Bradshaw , 196 So. 3d 1075, 1082-83 (¶19) (Miss. Ct. App. 2016). ¶22. B elow, we f

irst address whether MDPS m et its step-two b urden of production, i.e., its burden to articulate a legit i ma t e , nondiscrim inatory reason f or its decision to prom ote

1 1Cunningham rather than Kirk. W e then consider w h e t h e r t here i s substantial evidence to

support the EAB’s f

inding, as the trier of

f act, that Kirk f

ailed to m eet her ultim ate burden of proving that MDPS’s stated reason was a pretext and t hat M D PS intentionally discrim inated against her and ref used to prom o te her because of her gender.
I. MDPS a rt i c u l a ted a legitim ate, n ondiscrim inatory reason for its decision to prom ote Cunningham rather than Kirk. ¶23. MDPS’s stated reason f o r prom oting Cunningham r ather t han Kirk is t hat he scored higher on his interview, w hich tested the candi d ates’ k nowledge of subjects r elated to the
open position of lieutenant in the driver services division. In sup p o rt, MDPS i ntroduced evidenc e o f t he interview questions that candidates were a sked and interviewers’ scoring sheets. As discussed above, m em bers of t he in t e rview panel also testif ied a s to w hy Kirk received a lower score on two q u estions, nam ely , that s he answered one question incorrectly af ter changing h er answer, and she did not k n o w t h e a n swer to another question. Kirk acknowledged that the interview questions were f air and tested k n o w l e d g e r elevant to the
open position, and s he also adm itted that she was conce r n e d a b o u t one of her answers f or which she received a low score. As noted above, Kirk received the second-highest score of the six c andidates that were i nterviewed; however, Cunningham received t he highest score, and MDPS m aintains that he was prom oted f or that reason. ¶24. It should b e ev i d e n t t h a t t h e r elative quality of c andidates’ answers t o interview questions designed to t est their k no w l e d g e relevant to the open position is a l egitim ate, nondiscrim inatory r eason f or an em ploy er’s decisio n . C a selaw r ecognizes this com m on1 2sense proposition. See, e.g. , Harris v. M ayor & City Council of Baltimore , 429 F. App’x 195, 203-04 (4th C ir. 2011); Sutherland v. Mich. Dep't o f Treasury , 344 F .3d 603, 616 (6th Cir. 2003). Theref

ore, MDPS m et its step-two “burden o f production .” Hicks , 5 09 U.S. at 507. ¶25. To reiterate, this step of the McDonne l l D o u g l a s f r a me w o r k “ c an involve no credibility assessm e nt.” Id. at 509. The def endant’s only burden is “to introduce evidence which, taken a s true , w ould p ermit the conclusion that there was a nondiscrim inatory reason f or the adverse action.” I

d. If the trier of

f act believed that MDPS prom oted Cunningham because he provided the best answers to questions d esigned to test the candidates’ knowledge of r elevant subjects, t hen obviously that w o uld perm i t a conclusion t hat there was a nondiscrim inatory

reason f or MDPS’s decision to prom o te Cunningham rather than Kirk. ¶26. It is true, as Kirk and the dissent argue, that a “subjective r eason” f or an em ploy er’s decision “is a le g a l l y s u f

fi c i e n t , l e g i tim ate, nondiscrim inatory r eason” only “if the [ em ploy er] articulates a clear and reasonably specif ic f actual basis upon which it based i ts subjective opinion.” Chapman v
. AI Transp. , 229 F.3d 1 012, 1034 (11th C ir. 2000) (en banc). MDPS presented a suf

f i ciently specif

ic basis f or its decision i n t his case. In Chapman , t he en banc Eleventh Circuit held that the em ploy er m et its burden based on i nterviewers’ testim ony that the plaintif

f did not g i ve “ sharp” or “concise” answers, “ did not t ake an aggressive approach in a sking

. . . questions about the position,” and “ wasn’t very clear a bout” h i s r e a s o n s f

or leaving prior jobs; and that the em p loy ee who was prom oted just “m ade a better presentation

1 3of him self and his skills.” Id. a t 1035. One interview e r t e s tif ied t hat he d id not “have an

answer t o ” w hy one candidate did better t han the other; he “just

. . . f elt [ he] had m ore conf idence in [ the prom oted em ploy ee] in the way

he presented his work history .” Id. ¶27. The reasons p r ovided by MDPS in this case were at l east as clear and specif i c as those provided in Chapman

. Again, MDPS introduced evidence of the interview questions asked, which Kirk adm itted were f air and relevant, and evidence that Kirk answered two questions incorrectly

. MDPS p r ovided a specif ic, nondiscrim inatory reason f or i ts decision to prom ote Cunningham , a nd Kirk had an opportunity to respond and of f er evidence t hat it was a pretext. W h ether MDPS’s prof

f ered reason was the true reason f or its decision or a pretext was then an issue f or the trier of f

act to decide. ¶28. F o r t h e sam e reaso n , K irk ’ s an d t h e d issen t’s relian c e o n A lva ra d o v. T exa s R a n g ers ,

su p ra , is m isp laced

. In A lva rd o , t h e e mp l o y e r relied o n in terv iew s c o res b u t o f f ered n o “ex p lan a tio n [ ] o r ev i d en ce o f h o w o r w h y th e in terv iew ers arriv ed at th o s e sco res.”
A l va ra d o , 4 9 2 F .3 d at 6 1 7 . U n lik e th is case, th e em p lo y er in A lva ra d

o co u ld n o t “p o in t[ ]

to an y . . . testim o n y b y th e [ in terv iew ers] th at w o u ld s h ed an y lig h t o n w h y th e y sco red [ th e
p lain tif f ] an d t h e o t h er can d id a t e s th e w ay th ey d id .” Id

. H ere, M D P S p r o v id ed n o t o n ly th e can d i d ates’ sco res b u t also reaso n s w h y K irk sco re d l o w e r t h a n C u n n in g h am . T h is is

su f f icien t to d istin g u ish A l va ra d o an d to m eet th e step -tw o b u rd en o f p ro d u ctio n . S ee H a rris , 429 F. App’x at 2 0 4

. At step two o f t he M cDonnell Douglas f

ram ework, the

em ploy e r’s only

burden is to provide a nondiscrim inatory explanation f

o r its decision.

1 4¶29. Bef

ore m oving to step three of the M c Donnell Douglas f

ram ework, we brief

l y address

two additional p oints that the dissent raises under the heading of step two. First, the dissent

m akes r epeated claim s a long the lines that MDPS “ com pletely f ailed to f ollow General Order 22/02.” Post at (¶72). In support of these claim s, the dissent cites the Order’s statem ent that the Com m issioner of MDPS, af ter consulting with the Director of MHSP, “shall ha v e t he ability to prom ote in rank sworn personnel possessing s kill, knowledge, and prof essional experience to speciality positions.” Post a t ( ¶ 4 5 ). The dissent f ollows with conclusory assertions that t he selection process used in this case did not achieve this e n d. However, nothing in the text of 2 2/02 purports t o prohibit t he pro c e s s u s e d b y MDPS in this case. Indeed, reliance on m inim u m experience requirem ents f ollowed b y a test of the candidates’ kno wledge relevant to the vacant position i s entirely consistent w ith the stated purpose of 22/02. Moreover, Kirk’s claim f or relief bef

o re the EAB was not that MDPS f ailed to f ollow
agency procedures. Rather, she alleged intentional d i scrim ination based on gender. 3
T h e r e f o r e, e ven i f MDPS som ehow deviated f rom 22/02, that issue w ould b e, at m ost, relevant t o the step-three question whether its stated reason f o r the prom otion was a pretext f or illegal discrim ination. A deviation f rom agency p rocedures does not transf orm a logically and f acially nondiscrim inatory

reason into a discrim inatory o ne. ¶30. The dissent also com plains that MDPS’s i nterview process “lacked saf eguards,” “had

3 A t th e c o n clu sio n o f th e E A B h earin g , th e h earin g o f f icer sp e cif

ically ask ed : “ S o th e o n l y i ssu e b ef

o re th e [ E A B ] n o w is t h e g en d er d iscrim in atio n ? ” K i r k ’s co u n sel co n f i rm ed th a t th is w as co rrect. 1 5no scoring rubric,” and relied on “ subjective g rading.” Post a t (¶¶41, 59). However, there

is nothing inherently wrong or discrim inatory about any of these things. E very day , all kinds of e m ploy ers m ake em

ploy m ent decisions based o n “subjective” evaluations without scoring rubrics or other “saf

eguards.” For exam

ple, that is what judges do when hiring law clerks and other staf

f

. N o t every em

ploy m ent decision is reducible to a m ultiple choice test o r a
p u r e l y o b j e ctive scoring sy stem

. 4 To be clear, this is not to dism iss t he possibility t h a t subjectivit y , i n f

o r ma l ity , or a lack of docum entation m ay , in s om e cases, serve to obscure invidious discrim i nation. H owever, this possibility is an issue f or the trier of

fact at the third step of the McDonnell Douglas f ram ework. A determ ination that C unningham ’s answers to interview questions dem onstrated greater kn o w l e d ge of t he relevant subject m atter is a legitima t e , nondiscrim inatory reason even if it depends on interviewers’ subjective

assessm ents of

the candidates’ answers. ¶31. In sum m ary , “ [ b]y producing evidence (whether u l t i ma t e l y p e r s u a s i ve or not) of nondiscrim inatory r easons, [ MDPS] sustained [ its] burden of production,” which brings us
to the e nd of step two. Hicks , 509 U

. S

. a t 5 0 9

. S tep two o f the McDonnell Douglas
f ram ework “can involv e no credibility assessm ent,” “ [ f ] or the burden-of

-production determ ination necessarily precedes the credibility -assessm e n t stage.” Id. “The f actf inder’s disbelief of the reasons put f orward by the def

endant ( particularly if disbelief i s accom panied

4 A t th e h earin g b ef

o re th e E A B , c o u n sel f

o r M D P S ex p lain ed th at a w ritten test is n o t u sed f o r a “ sp e cialized ” p o sitio n su c h as th e o n e at issu e h ere b ecau se o f th e sig n if ican t co st asso ciated w ith d ev elo p in g su ch a test. 1 6by a suspicion of m endacity ) m ay . . . suf f ice t o s how intentional d iscrim ination” and “ permit the trier of f

act to inf er the ultim ate f

act of i ntentional discrim ination.” Id. at 511. However, that is an issue f

or the trier of f

act under step three of

the f ram ework. Id.
II. The EAB’s decision is supported by substantial evidence. ¶32. In an em

ploy m e nt dis c r i mi n a t i on case, the ultim ate question f or the trier of f

act is whether the plaintif

f has proven, by a preponderance o f t h e e vidence, that the e m ploy er’s stated reason f

or the adverse em

ploy m ent decis i on was a pretext f or im perm issible discrim ination. See Neely , 947 So. 2d at 293 (¶23). Thus, the b asic issue f or the trier of f

act is whether the em

ploy er’s explanation f

or its decision, a s presented through w i tnesses and other evidence, is credible and believable. See Hicks , 50 9 U

. S

. a t 5 0 7 -11. W hen a stateservice em

ploy ee appeals to the EAB, “ [ t] h e EAB i

s the trier of

fact as well as the judge of the witnesses’ credibility .” Ray , 172 So. 3d a t 1 88 (¶20) (em phasis a d ded; quotation m arks

om itted). A reviewing c ourt m a y not “ r eweigh[ ] t he evidence” or “substitut[ e] its own judgm ent” f

or that of the EAB; r ather, the court m ust def er to the EAB’s f

actual f indings and af f irm if there is “substantial evidence” in the record to support its decision. Id. a t (¶21). ¶33. In this case, the f indings and decision of t he E A B a r e s u p p o r t e d b y substantial evidence. All t hree m em

bers of the MDPS interview panel testif ied that C unningham scored higher than Kirk on the interview and was recom m e nded f or prom o tion because he provided superior a nswers to the interview questions—and not because o f Kirk’s gender. The EAB,

not this Court, is the judge o f these witnesses’ credibility

. The hearing o f f icer also f ound that

1 7Kirk’s qualif i c ations did not com

pel or support an inf

erence o f d iscrim ination because “Cunningham also h ad signif icant qualif

ications and experience.” The hearin g o f f i c er observed that “[ t]he ultim ate question in every em p loy m ent d iscrim ination case is whether the [ p ]laintif

f was the victim of discrim ination.” On this issue, the h earing of f icer f ound that Kirk f ailed to m eet her burden of proof t hat MDPS’s stated reason f or prom oting Cunningham “was untrue.” And the h earing of f icer f o und that “Kirk

. . . f

ailed to m eet her burden of proof t hat s he was intentionally denied t he

. . . prom otion because of her sex.” The
EAB af f irm ed t he hearing of

f icer’s f indings and d ecision, a nd we m ust also a f

f irm the decision of

the EAB, as its decision is supported by substantial evidence. 5 ¶34. Kirk argues that her qualif ications com

pel a n i n f

e r e n ce of d iscrim ination, but the hearing o f

f icer and the EAB f

ound otherwise, and the EAB’s d ecision is supported by substantial evidence. To prove pretext based on qualif ications, the plaintif

f m ust show that she was “‘clearly b e t t e r q u a lif ied’ (as opposed to m erely b etter or as qualif ied) than the

em ploy e e[ ] who [ was] selected [ f or prom otion].” Moss v. BMC S oftware I nc. , 6 10 F.3d 917,
922 (5th Cir. 2 0 1 0 )

. This requires the plaintif f to prove that “no reasonable person, in the exercise of

im partial judgm ent, could have chosen the candidate selected over the plaintif f
f or the job in question.” Id. at 923.

5 If th ere is a co n f

l ict b etw een th e f

in d in g s o r d e cisio n o f t h e h earin g o f f icer an d th e f in d in g s o r d e cisio n o f th e en b an c E A B , a rev i e w i n g c o u r t m u st rev iew an d d ef

er to th e f in d in g s an d d ecisio n o f th e en b an c E A B

. S ee M iss. D ep ’ t o

f T ra n sp
. v
. R u tla n d , 9 6 5 S o . 2 d 6 9 6 , 7 0 2 -0 3 (¶1 1 ) ( M i ss. C t. A p p . 2 0 0 7 )

. H o w ev er, w e also d e f er to f in d in g s o f th e h earin g o f

f icer th at, as in th i s case, w ere af f irm ed b y th e en b an c E A B

. S

ee id

. 1 8¶35. MDPS stipulated that Kirk—who the panel ranked s e c o n d of the six candidates

interview e d f

o r t he position—was qualif ied and an e x ceptional em ploy ee. MDPS sim

ply def ended i ts decision to hire Cunningham based o n his superior interview. T he candidates’

resum e s were sim ilar. Both have college degrees a n d have been em p loy ed by MDPS since
1987. Both served as acting lieutenant in the driver services d ivision f ollowing L ieutenant
W r ight’s retirem ent, and both h ave served in supervisory roles. Kirk was prom oted to m aster sergeant in 2 0 02, whereas Cunningham was prom oted in 2010; however, as the hearing of f icer noted, Cunningham has f iv e w o r k

- related com m endations, whereas K irk has only

one. E ither candidate was qualif ied and could have been selected f or the position. There is substantial evidence to support the hearing of f icer’s f inding, af f i rm e d by the E AB, that Kirk was not “clearly ” m ore qualif ied than Cunningham

. 6 ¶36. Finally , we address Kirk’s argum ent that she was entitled to an “adverse inf erence” because MDPS’s f

a ilure to r e t a in interview notes allegedly violated an EEOC regulation. 7
MDPS retained and produced c o p i e s o f t he interview questions and the scoring sheets

6 In m ak i n g th is arg u m en t, K irk p laces g r eat em p h asis o n th e f

act th at sh e h a d serv ed as a m aster serg e an t lo n g er th a n C u n n in g h am . H o w ev er, th e th i rd -rated can d id ate, a m ale, h ad serv e d as a m aster serg ean t lo n g er th an eith er K irk o r C u n n in g h a m . 7 S ee 2 9 C .F .R . § 1 6 0 2 .1 4 (“A n y p erso n n el o r em p lo y m e n t reco rd m ad e o r k ep t b y an em p l o y e r (in c lu d i n g b u t n o t n ecessarily lim ited to req u ests f o r reaso n ab le acco m m o d atio n , ap p l icatio n f o r m s su b m itted b y ap p lican ts a n d o t h e r reco rd s h av in g to d o w i th h irin g , p r o m o tio n , d em o tio n , tran sf er, lay -o f f o r t erm i n atio n , rates o f p ay o r o th er term s o f co m p en satio n , an d selectio n f o r train in g o r ap p ren ticesh ip ) sh all b e p reserv ed b y th e em p lo y er f o r a p erio d o f o n e y ear f

ro m th e d ate o f t h e m ak in g o f th e reco rd o r th e p erso n n el actio n in v o lv ed , w h ich ev er o ccu rs later.”). 1 9com

pleted by the interviewers; however, as note d a b o v e , Major Gillard t estif ied that he shredded any handwritten n o t e s t a k en by the interviewers because the interview questions

m ight be reused and he did not w ant any answers d isclosed. The n otes that were destroy ed

were described as “shorthand” or “scratch” notes, and Colonel Berry testif i e d t hat agency policy did not require Gillard to retain the notes. Kelly testif i ed that he did not r ecall taking
any notes. The en banc EAB rejected Kirk’s a rgum ent b ased on the notes, af f irm ing the hearing of

f icer’s im plicit f inding that their destruction was not “signif icant.” ¶37. For two reasons, we conclude that Kirk’s argum ent is without m erit. First, we agree with t he United Stat e s C o u rt of Appeals f or the Seventh C ircuit that “[ e]m p loy ers are not required to keep every single piece of scrap paper that various em ploy ees m a y create during the term ination process”—or, in this case, the prom otion process. Rummery v. Ill. Bell Tel.
Co. , 250 F.3d 553, 558-59 (7th Cir. 2001). “ It is suf f icient that the em

p loy er retains only the actual em p loy m ent record itself

, not the rough draf

ts or processes which m ay lead up to it.” Id. at 759. In Rummery , the Seventh Circuit held that the em ploy e r com

plied w ith t he EEOC
regu l a t i o n by retaining “f inal ranking sheets” t hat aggregated em ploy e e s’ rankings by

m ultiple m anagers who h ad evaluated their perf orm ance. Id. at 758-59. The court held that the em ploy er was n ot required to retain “ evaluation notes” that were m e rely “inf orm al notes” that individual evaluators “ m ay have taken.” Id. Likewise in this c ase, MDPS retained the interview questions and score sheets; w e do not believe that f ederal law required the agency to retain “scratch” or “shorthand” notes that m ay have been taken by interviewers.

2 0¶38. Second, a s noted a bove, the EAB acknowledged Kirk’s argum ent but did not f ind it persuasive. In Thomas v. Isle of Capri Casino , 781 So. 2d 125 (Miss. 2001), our Suprem e Court held that a casino patron was entitled to the benef it of an adverse inf

erence in a case involving a dispu t e d slot m a chine jackpot because the casino had destroy ed a central processing unit t hat would have conclusively resolved the d ispute. Id. at 133-34 (¶¶36-43). Nonetheless, t he Court st ill af f i rm ed the G a m ing Com m ission’s decision rejecting the patron’s claim

because there was “am

ple s econdary e vidence” t o s upport t he decision. Id.

at 1 34 (¶43). This included witnesses “who of f e red conf licting t e s t im ony ,” a nd, “as the
f i n d e r o f f act,” the Com m ission “ was responsible f or judging their v eracity .” Id. at (¶44). The sam e is true in this case. The EAB af f i rm ed the hearing of

f icer’s im plicit f inding that the shredding o f the notes was not “signif icant.” F urther, there was substantial evidence to support the EAB’s ultim ate f inding that K i r k f

a i l e d to m e et her burden of p roving that MDPS’s stated reason was a pretext f or intentional discrim ination.
CONCLUSION ¶39. At step t wo of the McDonnell Douglas f ram ework, M DPS articulated a l e gitim ate, nondiscrim inatory reason f or its decision to prom ote Cunningham rather than Kirk. Thus,

at step t hree of the f

r am ework, the trier of f

a ct had to determ i ne whether Kirk m et her burden of proving that the agency ’s stated reason was a p retext f o r intentional discrim ination. The
EAB was the trier of f

act a nd the judge o f witnesses’ credibility in this case. There is

2 1substantial evidence t o support its f indings and d ecision deny ing Kirk’s claim

. 8 Theref ore, we af f irm

. ¶40. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FI R S T JUDICIAL DISTRICT, I S AFFIRMED. ALL COSTS OF THIS A PPEAL ARE ASSESSED TO THE APPELLANT. GRIFFIS, P.J., BARNES, ISHEE AND FAIR, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPA R A TE WRITTEN OPINION, JOINED B Y LEE, C.J., IRVING, P.J., AND WESTBROOKS, J. GREENLEE, J., NOT PARTICIPATING. CARLTON, J., DISSENTING: ¶41. I respectf

ully dissent f

rom the m ajority ’ s opinion. Upon review , I f i n d t h at MDPS acted a rbitrarily by f

ailing t o f

o llow its own applic a b l e General Order 22/02 to prom ote

8 I n a f o o tn o te, th e d issen t n o tes th at a j u ry v erd ict an d j u d g m en t w ere en tered in f av o r o f K irk in f e d eral d istrict co u rt o n a claim th at ap p ears to b e sim ilar, if n o t id en tical, to th e claim at issu e in th i s ap p eal. P o st at n .1 0

. M D P S s u b seq u e n t l y f i l e d a mo t i o n f

o r j u d g m en t n o t w ith stan d in g th e v erd ict o r a n ew trial, w h ich rem ain s p en d in g . T h e s e d o cu m en ts a re p u b l i cly av ailab le. H o w ev er, th ere is n o th in g in th e reco rd in th is ap p eal ab o u t th e f

ed eral c ase, an d n e ith er p a r t y h as raised a n y issu e o r m a d e an y arg u m en t reg ard in g th e p reclu siv e ef f e c t s o f t h e f

ed eral case o n th is case (o r v ice v ersa). T h e m ere f act t h at a f ed e ral j u ry retu rn ed a v erd ict in K irk ’s f av o r is n o t in c o n sisten t w ith o u r d ecisio n in th i s a p p eal. F o r th e reaso n s e x p lain ed ab o v e, th ere w as su f f icien t e v i d e n ce f

o r th e factf in d er in th is case, th e E A B , to f in d th at K irk d id n o t m eet h er b u rd e n o f p r o v in g in ten tio n al d iscrim in atio n . O u r o p in io n d o es n o t h o ld th at to b e th e o n ly co n clu sio n th at th e ev id en ce p erm i ts; w e h o l d o n ly th at it is a p erm issib l e c o n c l u sio n th at is su p p o rted b y su b stan tial ev id e n c e . T h e f

a ct-f i n d er in th e f

ed eral case, t h e j u r

y , ap p aren tly reach ed a d if f eren t co n clu s io n b ased o n th e ev id e n ce p resen ted at trial in t h a t case. B u t ev en assu m in g th at th e f ed eral v erd ict w i ll b e u p h eld an d th at it w as b a s e d o n t h e ex act sam e ev id en ce p resen ted to th e E A B , it is c ertain l y p o ssib le f o r ratio n al f

a c t-f in d ers to d raw d if

f e r e n t c o n c l u sio n s f ro m th e sam e e v id en ce. T h at is th e v ery reaso n f o r h av in g a trial o r, as in th is ca se, an ad m in istrativ e h earin g . I n d eed , if th e ev id en ce p erm itted o n ly o n e co n clu s io n , th ere w o u ld h av e b een n o n eed f

o r a j u ry trial o n liab ility in th e f

ed eral case. 2 2som eone to f ill t he vacant lieutenant position. 9 Instead o f f ollowing General Ord e r 22/02, the record shows that MDPS used an unauthorized procedure of an interview panel and an oral exam com

prised of six objective t echnical q uestions t o d e t e rm ine who received the lieutenant prom otion. The record also shows that MDPS used General Order 22/01, instead of General Order 22/02, to a pply a m i nim

um -requirem en t s t a n d a rd. Moreover, the record dem onstrates that MDPS’s unauthorized technical-intervi ew exam lacked saf e guards to provide a suf

f icient f actual basis f

or the agency ’s subjective prom otiona l decision. In addition, the record r e f

l e c t s that t he oral-technical-question e xam had no scoring rubric to show ho w t h e a p p l icants’ interview answers c o rrelated w ith the correct answers f or each question. Thus, each interviewer was lef t on his own to subjectively score t he c orrectness of e ach question. F urthe r

m ore, the record ref

lects that t he interviewers’ notes were destroy ed
f ollowing the c om

pletion of the interview process. As a result, I f ind that t he EAB’s ruling lacked the support o f substantial evidence and that MDPS acted arbitrarily and capriciously by f ailing to f ollow its own General Order 22/02 in re a c h i n g t h e p r om otional decision. I would theref

ore reverse the circuit court’s judgm ent upholding MDPS’s nonprom otion of Kirk a n d render a judgm ent in Kirk’s f avor. 10 In s o doing, I would order MDPS to prom ote Kirk to lieutenant.

9 S ee R a y v. M iss. D ep ’t o

f P u b

. S a fety , 1 7 2 S o . 3 d 1 8 2 , 1 8 7 (¶¶1 5 -1 6 ) (M i ss. 2 0 1 5 ) (statin g th at th e ap p ellate co u r t s w ill rev erse a n ag en cy d ecisio n n o t su p p o rted b y su b stan tial ev id e n c e ).

10 S ee a n d co m

p a re K irk v. M iss. D ep ’t o

f P u b . S a fety , N o . 3 :1 4 -C V -0 0 5 3 7 -WH B

R H W (S .D

. M iss. F eb . 1 , 2 0 1 7 ) (j u ry v erd i ct en tered in f

ed eral co u rt in f

a v o r o f K irk ). 2 3¶42. At the end of May 2013, Lieutenant W right retired f rom the driver-services division of M DPS. On June 7, 2 013, MDPS posted a n otice to f ill the vacant l ieutenant position. To apply f or the position, applicants ha d t o m e e t t he f ollowing m inim

um requirem ents: (1) graduate f

rom a standard f

our-y e a r high school or the equivalent; ( 2) com plete the MHSP Cadet Training School; and (3) possess seven y ears of experience “as a sworn of f icer with the [ MDPS/MHSP], o f which t wo . . . y ears m ust h ave been in[ -]lin e o r f u n c t i onal supervision as a [ m ]aster [ s]ergeant.” ¶43. Kirk was am ong the individuals who applied f or the prom otion, and she w as the only
f em ale a pplicant f or the position. Kirk, Cunningham , and s e v e r a l other m aster sergeants each served as the acting lieutenant prior to and a f t er the vacancy f

or the lieutenant position. At the tim e of the applicant i nterviews f or the vacant lieutenant position, Kirk was serving

as t he acting lieutenant. As the r e cord ref lects, she had been em

ploy ed with MDPS since
1987 and had served as a m aster sergeant f or eleven y ears prior t o s e e k i n g the lieutenant
prom otion. ¶44. Testim ony presented at t he EAB hearing on Kirk’s appeal ref lected that, during the relevant tim e period, M D PS had two g eneral orders that governed prom otions—General Order 2 2 / 0 1 a nd General Order 22/02. General Order 22/01 p rovided a two-step testing procedure f

or the m erit-based prom otions of sworn p ersonnel within M DPS and M HSP. The
f i r s t s t e p , the screening phase, included the f ollowing: (1) a written exam ; (2) an ora l interview; a nd (3) t he applicant’s experience and education. T h e second step, the

2 4appointm e nt-board phase, consisted of an interview with a thr e e - m em ber board. General Order 22/01 stated that, to be el i g i b l e t o t est f or a prom otion to the rank of lieutenant, an applicant had to s e r v e f

or seven y ears, with two of those y ears being served a s a m aster sergeant. ¶45. In contrast t o General Order 22/01’s governance of m erit-based prom otions f or sworn personnel, General Order 22/02 set f orth the selection procedure f o r specialized positio n s. General Order 22/02 provided:
A. Candidates f

or a specialized position m ust hold the rank o f [ m ]as ter [ s]ergeant or higher and be eligible to quali f y a s a [ l]ieutenant or higher.
B. Af t er reviewing the qualif

ications of the candidates, the Director of the Of f ice of [ M HSP,] with the approval of the Com m i ssioner of [ MDPS,] will appoint the candidate to f ill the position.
C. Notwithstanding the provisions of General Order 22/01 or this Order, the Com m issioner of [ MDPS] shall have the ability to prom ote in rank sworn personnel possess i n g skill, knowledge[ ,] a nd prof essional experience to specialty positions, such a s but not lim ited to, those listed above a t his/her discretion af ter consulting with the Dire c t o r o f [ MHSP.] ¶46. During the EAB hearing, Major Gillard t estif ied that General Order 22/02 applied to the vacant lieutenant p osition i n the driver-services division b ecause the position was a “specialized position.” The h earing of f icer agreed. The hearing of f icer f ound that “General Order 22/01 controls tested positions i n both the Enf orcem ent Division of [ MHSP] (Enf orcem ent Troopers) a nd the Mississippi Bureau of Investigation” and t hat “[ c]andidates
f or m erit[

- ]prom otion testing under General Order 22/01 m ust be sworn [ MHSP] Of

f icers.”

2 5By contrast, the hearing of f icer concluded that “General Orde r 22/02 i s designated f or
prom otion of [ s]peciality [ p]ositions, as well as f or other positions not s pecif ically nam ed f

or
prom otion by another General Order.” C onsistent w ith Major Gillard’s testim ony during the hearing, the EAB of

f icer determ ined that General Order 22/02 controlled prom ot i o n s in driver services and, as a r esult, applied to the p rom otional process f o r the l ieutenant position at issue. ¶47. The hearing of

f icer f urther f ound that, in accordance with General Order 22/02 and the job-posting notice, b oth Kirk and Cunningham m e t all the m inim um q ualif

ications required to i nterview f

or the vacant lieutenant position. L ike Kirk, the hearing of f icer f ound that Cunningham had been em ploy ed with MDPS since 1987 and h ad held the rank of m aster

s e rgeant f

or a t l east two y ears prior to apply ing f or the vacant lieutenant position. A s previously noted, the hearing of f icer f ound that Kirk had served as a m aster s e r g e a n t f or eleven y ears. W ith regard t o Kirk’s other qualif ications, t he hearing o f

f icer f ound that Kirk had: (1) supervised a s m any as f if teen em ploy ees and one sworn of f icer since becom ing a

m aster sergeant; (2) supervised the day -to-day operations of the driver-services d ivision in District II; and (3) received one w ork-related com m e ndation. W ith regard to Cunningham ’s qualif ications, the hearing o f

f i cer f o und that C u nningham had: (1) s erved a s a m aster sergeant f or m ore than three y ears prior to s e eking the prom o tion; (2) supervised eleven or

t welve driver-license exam iners and one sworn of f icer; and (3) received f

ive work-relate d

com m endations. The r ecord shows t hat the hearing of f icer looked at the m inim um

2 6qualif

ications f or the lieutenant p osition instead of considering which applicant was the m ost qualif ied i n term s of skill, knowledge, a nd prof essional experience as required b y General Order 22/02. ¶48. As required by the job-posting notice, all six of the interviewe e s f o r t h e vacant lieutenant position had held t he rank of m aster sergeant f or at least two y ears. A s s t a t e d, however, Kirk had held t he position of m aster sergeant f or the previous eleven y ears and was the m ost recent a cting lieutenant of the driver-services division. On July 17, 2013, instead of f ollowing General O rder 22/02, a three-person panel interviewed the six applicants f or the position. The questions asked during the interview exam c o nstituted objective technical questions and not subjective questions. Ho w e ver, as stated, the interviewers were not provide d a rubric f

or s coring the c orrectness of the a nswers to the q uestions. The interviewers c o u l d s c ore the questions however they chose even t hough the questions constituted objective technical questions. ¶49. Major Gillard, the t hen-director of t he driver-services division, conducted the interview process. M ajor Gillard selected C aptain Parker and Lieutenant Kelly as the other

two i nterview panelists. At t he tim e o f the interview, Captain P arker was the deputy director of the driver-services division, and Lieutenant Kelly was a lieutenant in the division. Due

to t heir positions within the d river-services division, all t hree m en were in K irk’s supervisory chain of com m and. ¶50. Major Gillard and Captain Parker determ ined that, once applicants m e t t he m inim um

2 7qualif

ications to i nterview f

or the vacant lieutenant position, t he applicants’ interview score would b ecom e the s ole f

actor f or determ ining who received the prom otion. Major Gillard and Captain Parke r t e s t i f i ed that they d eveloped six t echnical questions (as well as the corresponding answers) f or t he interview. H o w e v e r, as noted, the interviewers were provided no scoring scale or rubric f or grading the answers t o t he q uestions. The panel asked each interviewee these sam e six questions. ¶51. In response to the interviewees’ oral a ns w e r s t o the questions, the interview panel took

notes and scored each response between one and f i ve, with f

i ve being the b est score. Since

no scal e o r rubric existed f or how to grade t he answers to the questions, each panelist subjectively graded the interviewees’ answers. Prior to the interviews, the panel agreed that

n o i n t e r viewer’s f

inal s c ore of a candidate would be m ore than one point d if f erent f r o m another interviewer’s f

inal s core . As a result, af ter com pleting each interview, and bef ore entering a candidate’s f

inal overall score, the panel m em bers com pared the i r subjective individual scores f

or the candidate to determ ine whether any scoring discrepancies existed.
W h ere the scores f

or a specif

ic question dif

f e red b y m ore than one p oint, the interviewers discussed the scores and changed them to m ore closely

align with one another. ¶52. Based on the applicants’ interview r esponses, the panel’s f inal sco res f

or the candidates ranged f

rom f o rty -three to seventy -three. Cunningham received the highest score
at seventy -three, a nd Kirk received the s econd h ighest score at sixty

- f our. Af ter com pleting the i nterview p rocess, M a jor Gillard testif

ied that h e s hredded b oth the answers to the exam

2 8and the interviewers’ n otes. Although adm i tting that t his was not agency p olicy , Major

Gillard a s s e r t e d h e t ook this step as an added p recaution to protect the integrity of the interview process. ¶53. Although the record f a iled to contain the interviewers’ n otes or t h e c orrect exam
answers, the record did contain the interviewers’ sco re s h eets f or each applicant. As discussed, since no scoring r ubric existed, the interviewers could s c ore the a n swer to e a ch question between one a nd f ive a s the i nterviewer saw f it. The score sheets showed that the interviewers gave Kirk a signif icantly lower score than C unningham on i nterview questions
2 and 4. At the E AB h earing, the i nterviewers testif ied as to w hy they awarded Kirk a lower score on these questions. ¶54. Interview question 2 asked the interviewees to explain what they would advise in the
f ollowing scenario: “A [ m ]aste r [ s]ergeant c alls and tells y ou t hat [ an individual who is sixteen y ears and nine m onths old] has an Alabam a learner’s perm i t , h a s held [ the perm it]
f or eight m onths[ ,] and wishes t o get a Mississippi in t e r me d i a t e license.” In discussing interview question 2 , both Major Gillard and Captain Parker e xplained that Kirk initially
gave a correct answer to the question but then changed her answer to an incorrect response. As a result, Captain Parker testif ied that he awarded Kirk f ewer points than he would have if she had stuck t o her initial answer. Major Gillard also testif ied that he originally awarded Kirk a f o u r o ut o f f

i ve b u t then lowered her s core once she changed her answer to the incorrect response. As f

or Lieutenant Kelly , he testif ied that he did n ot recom m e nd Kirk f or

2 9the prom otion because she f ailed to f ully answer the questions. ¶55. I n terview question 4 asked the interviewees w h at “B” represented on a perm anent disability card. Although the testim ony ref lected that “B” stood f

or “ both,” Captain Parker and Lieutenant K elly explained t h a t a n a pplicant could answer “both” and r eceive a good

score o r the applicant could elaborate o n t h e a n s w e r and receive a n even higher score. In explaining the lower scores they gave Kirk on interview question 4, b oth M ajor Gillard and Captain Parker testif

ied that Kirk answered t hat she did not know t he correct answer to the question. Lieutenant Kelly a gain testif ied that he gave Kirk a low score because she f ailed

to answer the question. Although Kirk adm itted d uring her hearing testim o ny that she was

unsure about her answer f or question 4, she stated that she answered every single interview question. In addition, Kirk t estif ied that the six interview questions were f air because they

cam e straight f

rom the m anual on agency

policies and procedures. ¶56. Because Cunningham recei v e d t h e highest cum ulative oral interview s core, the int e r v i e w p a n e l r e c om m ended that Colonel Berry , the M HSP Director, p rom ote C unningham

to the vacant lieutenant position. Following Cunningham ’s prom ot i o n , K i r k f i l ed a g rievance with MDPS and asserted that she w as n ot prom oted due to her r ace, age, and gender. As the record r ef lects, K irk is a black f

em ale over the a ge of f

orty , and Cunningham is a black m ale over the age of

f orty

. ¶57. Af ter f ailing to r eceive her requested relief through MDPS’s g rievance p rocess, Kirk appealed to the EAB. At the conclusion of the EAB hearing, Kirk stipulated that, based on

3 0the evidence, she w ould no l onger pursue her discrim ination claim s based on race and age.

As a r esult, the EAB hearing of f icer only determ ined w hether MDPS discrim i nated against Kirk on the basis of

her sex. ¶58. As previously discussed, the hearing of f icer f o und that General Order 22/02 applied

to the prom otion at issue because the position c onstituted a s pecialty position. The hearing of f icer also f ound that both Kirk and Cunningham m e t the requirem ents to i nterview f or the position even though General O rder 22/02 d irected t he prom otio n o f “sworn p ersonnel
p o s s essing skill, knowledge[ ,] and prof e ssional experience to specialty positions[ .]” T h e hearing of

f icer also concluded that Kirk was not m ore clearly qualif ied f or the position than Cunningham

. ¶59. In a ddition, the hearing of f i cer f ound that Kirk never introduced evidence to show that
any of her supervisors had ever m ade a derogatory rem a r k a b out her sex a t any tim e during her em ploy m ent with MDPS, and she never stated during the appeal hearing that the panel interviewers were sexist. However, the hearing of f icer f a iled to address whether a suf f icient
f actual basis or saf

eguard s e x i s t e d to support the interview p anel’s subjective grading and unauthorized prom otional procedure. W hile a c k n o w l e dging t hat no f e m ales sat on the interview panel, the hearing of f icer also f ound that there were no f

em ale supervisors in driver services who would have been qualif ie d t o sit o n the interview panel. The hearing of f icer ultim ately c oncluded t hat M DPS neither d iscrim inated against Kirk based upon any im p erm issible ground nor denied Kirk the prom otion based on her sex. As s t ated, without

3 1addressing the unauthorized grading procedure or subjective grading used by the interview

panelists, the hearing of

f icer determ ined that Cunningham r e c e i ved t he prom otion f or a legitim ate, n ondiscrim i natory reason—his higher score on the i nterview. As a result of his
f indings, the hearing of

f icer denied Kirk’s requested relief

. ¶60. On March 6, 2015, the hearing of f icer entered his order f

inding that MDPS had not
f ailed to prom ote Kirk based on her sex. Kirk then appealed to the f ull EAB, which af

f irm ed the hearing of

f i cer’s d ecision. O n May 1, 2 015, Kirk f iled a petition with the circuit court

to appeal the decision reached by the f u ll EAB. Aggrieved by the circuit court’s j udgm ent af f irm ing the EAB’s determ i nation, Kirk appeals to this Court. ¶61. The Mississippi Suprem e Court has held:

The s cope of judicial review o f the f indings and act i o n s of an adm inistrative agency is well-settled. T he reviewing c ourt m ust af f irm the agency decision if the d ecision was (1) supported by s ubstantial evidence; (2) not arbitrary o r capricious; (3) within the scope or power of the agency ; and (4) not a violation of

the aggrieved party ’s constitutional or statutory rights.

. . . . Substantial evidence exists so l ong as there is evidence t hat a r easonable m ind m ight a ccept a s suf

f icient to support a c onclusion. The reviewing court is not authorized to substitute its judgm ent f or that of the agency where there is substantial (that is, m ore than a scintilla of ) evidence to support the f inding. Moreover, there is a rebuttable presum p tion in f avor of t he agency decision and the burden of

proof is on the party

challenging that decision. Ray v. M i s s
. Dep’t of P ub. Safety , 172 S o . 3 d 182, 187 (¶¶15-16) (Miss. 2015) (internal citations and quotation m arks om itted). ¶62. I also acknowledge t hat jurisprudence establishes that a prom otional sy stem based on subjective criteria can be f acially n eutral but y et discrim inatorily applied s o that it a dversely

3 2af

f ects one group. P age v. U.S. Indus. Inc. , 726 F.2d 1038, 1046 (5th Cir. 1984). ¶63. Kirk argues that th e e v i d ence subm i tted to t he E AB dem onstrated M DPS f ailed to
prom ote her due to h er gender. As a r esult, she contends the E AB’s f inding that MDPS did not discrim inate against her lacked the support of substantial evidence. She theref ore asks this Court to reverse the EAB’s ruling. ¶64. Upon review, I agree that MDPS a cted arbitrarily by f ailing to f ollow General Order 22/02. I also f

i nd that M DPS’s s ubjective p rom otional p rocess lacked s uf f icient saf eguards against discrim ination and t hat its decision lacked t he support of a clear and reasonably specif ic f actual b a sis. S

ee Alvarado v. Tex. Rangers , 492 F.3d 605, 616-17 (5th Cir. 2007);
Ro w e v
. G en. Motors Corp. , 457 F.2d 348, 3 59 (5th Cir. 1972). As a r esult, I f ind that

s u b s t a ntial e vidence f

a iled t o support the E AB’s f indings. I would theref

ore reverse t h e circuit court’s judgm ent af f i rm ing the EAB’s decision and render a decision in Kirk’s f avor. ¶65. In McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973), the United States Suprem e Court established a three-pronged test f or a p l a i n t i f

f to prove by circum stantial evidence that s h e suf

f ered i ntentional discrim ination. First, the plaintif f m ust establish a prim a f acie case of discrim ination. McCoy v. C ity of Shreveport , 4 92 F.3d 551, 556 (5th Cir. 2007). To establish a prim a f acie case of sexual discrim i nation, Kirk m ust prove: “(1) she is a m em ber of a protected class; (2) she w as qualif ied f or her position; (3) s he was subject

to an a d verse em

ploy m ent action; and (4) s he w as replaced by som eone outside her protected class or received less f

avorable treatm ent than did a sim ilarly situated individual not in the

3 3protected class.” Austen v. W e atherford Coll. , 564 F. App’x 89, 93 (5th Cir. 2014) (citing Okoye v. Univ. of Tex. Houston Health Sci. Ctr. , 245 F.3d 507, 513-14 (5th Cir. 2001)). ¶66. The record r e f

lects that Kirk established a prim a f acie case of sexual discrim ination.
See Alvarado , 492 F.3d at 611 ( “Title VII proscribes a n em ploy er f rom . . . discrim inating against any individual because of that individual’s sex.” (citation om itted)). The parties raise

no dispute as to t he f

ollowing f

acts: (1) Kirk, as a f

em a le, i s a m em

ber of a protected class; (2) she m et the mi n i mu m q u a l if ications n ecessary t o interview f or the v acant lieutenant position; (3) she e xperienced an adverse em ploy m ent action when she f

a iled to receive the sought-af ter prom otion; and (4) Cunni n g h a m, w h o was n ot a m em b er of Kirk’s protected

c l ass, received m o re f

avorable t reatm ent when MDPS prom oted him instead of K irk. Se e Austen , 5 64 F. App’x at 93. Because Kirk satisf ied the f irst prong of t he M

cDonnell Douglas analy sis, the burden shif t ed to MDPS “t o a r t i c u l ate a legitim ate, nondiscrim inatory or nonretaliatory reason f

or its em p loy m ent action.” M

c C o y , 4 9 2 F.3d at 557 (citations

om itted). 11 MDPS’s articulated reason f or not prom oting Kirk w a s that the interview score constituted t h e sole determ ining f actor f or awarding the p rom otion, a nd C unningham received a higher interview score than Kirk. ¶67. In pr e v i o u s l y a c k

n o w l e d g i n g t

h a t a p r o m o t i o n a l sy stem based on subjective evaluation

11 S ee a lso T exa s D ep ’t o

f C m ty. A ffa irs v. B u rd i n e , 4 5 0 U .S

. 2 4 8 , 2 5 7 (1 9 8 1 ) (“We h av e s tated co n sisten tly th a t th e em p lo y ee’s p rim a f

acie case o f d iscrim in atio n w ill b e reb u tted if t h e em

p lo y er a rticu lates law f

u l reaso n s f

o r t h e actio n ; th at is, to satisf y th is in term ed iate b u rd en , t h e e m p lo y e r n e e d o n ly p ro d u ce ad m i ssib le ev id en ce w h ich w o u ld allo w th e trier o f f

act ratio n ally t o co n clu d e th at t h e em p l o y me n t d ecisio n h a d n o t b een m o tiv ated b y

d iscrim in ato ry

an i m u s.”). 3 4and the f

avorable recom m endation by an im m ediate supervisor can provide a ready vehicle
f or discrim ination, the Fif

th Circuit invalidated a subjective prom otional sy stem that resulted in discrim ination w here the sy stem em bodied t he f

ollowing m echanism s : (1) the f orem an’s

recom m endation was the single m o s t i m p o r t ant f a c tor in t he p rom otional process; (2) the
f orem en received no written instructions about the qualif ications necessary f

or prom otion; (3) t he controlling standards w ere subjective a nd vague; (4) hourly em ploy ees received no notif ication of prom otional opportunities or the requisite qualif ications f or jobs; and (5) the procedure contained n o saf eguards to prevent discrim inatory practices. R o we , 457 F.2d at 358-59. ¶68. In f

urther discussing subjective prom otional practices, the Fif th Circuit has stated:
An em ploy er’s subjective reason f or n ot selecting a candidate, s u ch as a subjective assessm ent of the candidate’s perf

orm a nce in an interview, m ay serve as a legitim ate, non d i s c r i m inatory reason f or the candidate’s non-selection. See [ Patrick v. Ridge , 394 F.3d 3 11, 317 ( 5 t h Cir. 2004)] (recognizing that McDonnell Douglas does not preclude a n em ploy er f rom rely ing on subjective reasons f o r its personnel decisions); see also Chapman v. AI Transport , 2 2 9 F

. 3 d 1012, 1034 (11th Cir. 2000) ( “It is inconceivable that Congress intended anti-discrim i nation s tatutes to deprive an em p loy er of the ability to r ely on im

portant criteria in its em

ploy m e n t d e c i s ions m erely because t hose criteria a re only c apable o f subjective evaluation.”). Such a reason w ill satisfy t he em ploy e r’s burden of production, how ever, only if the e mploy er a rticulates a clear and reasonably specific basis for its subjective assessm ent. See [ Texas Dep’t o f C mty. Affairs v. B urdine , 4 50 U.S. 248, 258 (1981)]; Patrick , 394 F.3d at 316-17; see also Chapman , 2 29 F.3d at 1034 ( “ A subjective r e ason is a legally sufficient, l egitim ate, nondis c rim inatory reason if the defendant a rticulates a clear and reasonably specific f

actual basis upon w hich it based its s u bjective opini on.” ); EEOC v. Target Corp. , 460 F.3d 9 46, 957-58 (7th Cir. 2006) (agreeing w ith the Eleventh Circuit that “an em ploy er m u st a rticulate reasonably specific facts that ex plain how it form e d its subjective opinion

3 5of the applicant in order to m e et its burden under Burdine ” ).

Alvarado , 492 F.3d at 616-17 (em phasis added). ¶69. In A lvarado , a f

em ale state trooper a

p plied f or a t ransf er to the Texas Rangers. Id. at 609. A f ter f ailing to r eceive t he transf er, Alvarado f

iled a sexual-discrim ination l awsuit. Id.

at 610. In reviewing the district court’s grant o f sum m a ry judgm e n t to the e m ploy er, the Fif th Circuit f

ound that the em

ploy e r f ailed to satisf

y its b urden t o prof

f er a legitim ate , nondiscrim inatory reason b ecause the em ploy e r p r o v i d e d n o e x

p l a n a tion o r evidence “of how

or w hy the interviewers arrived at [ their] scores” or wh y t h e i n t e rviewers “rated the other candidates, particularly the ten m en who were selected f or the Rangers, higher t han Alvarado.” Id. a t 617. The Fif th Circuit f

urther noted that “Alvarado’s score sheets contain

no notes or com m ents on her i nterview perf orm ance, and [ the em

ploy er] has not pointed to
any deposition t estim ony by the [ interviewers] that would shed l ight on w hy they s c o r ed Alvarado and the other candidates the way they did.” Id. “W ithout som e indication of the
f actual basis or specif

ic reasons f

or Alvarado’s interview score,” the Fif th Circuit c oncluded that Alvarado’s interview s c ore was “at least a s consistent with di s c r im inatory intent as it [ was] with nondiscrim inatory intent because Alvarado m ay w ell have received t he relatively low interview score on account of her sex.” Id. (citation om itted). ¶70. By contrast, in Ch a p m an , the Eleventh Circuit f o und t hat the em

ploy e r of f ered a suf f i ciently specif

ic e xplanation f

or its f ailu r e t o h i r e t he p laintif

f , Chapm an, based on his interview. Chapman , 229 F.3d a t 1028. In Chapman , the em ploy er of f ered two l egitim ate,

3 6nondiscrim inatory re a s ons f or f ailing to hire Chapm an. Id. 12 The Eleventh Circuit

r e c o g n i z e d t h a t t h e e m p l o y e r ’ s s e c o n d p r o f f e r e d r e a s o n

— C h a p ma n ’ s p o o r interview—constituted a s ubjective reason f or f ailing to hire Chapm an. I d. However, in discussing the em

ploy er’s prof

f e r e d s u b j e ctive reason f

or ref using t o hire C hapm an, the Eleventh Circuit f

o u nd that the em

ploy er “of

f ered a clear a

n d r e a s o nably s pecif

i c explanation of why W o gsland and Turnquist, t he decision m akers, arrived at that subjective conclusion.” Id. at 1035. As t h e Eleventh Circuit stated, the decision m akers of f ered t he f

ollowing explanation to support their decision not to hire Chapm an:

W ogsland o b served that Chapm an’s im precise answer s w ere n ot “the answers he would expect C hapm an needed to be able to g ive to technici a ns under his control, within his unit.” A s an e x am ple of an u nclear answer given by Chapm an, W ogsland stated t hat Chapm an “wasn’t very clear about why he had gone f

rom Hom e Insurance Com pany to several other positions bef ore he got to Transport. . . .” Turnquist explained that he[ ,] t oo[ ,] was concerned about h ow Chapm an presen t ed his work history

. In com paring W i ggins[ , another candidate,] and Chapm an’s interviews, Turnquist stated:

I thought that

. . . W iggins m ade a better p resentation of h i ms e lf a nd his skills.

. . . I don’t have an answer to that[ .]

. . . I f elt I h ad m ore conf

idence in Graham in the way he presented his work history

. Id. The Eleventh Circuit c oncluded that, “[ e]ven though W ogsland a nd T urnquist subject i v e l y e v aluated C hapm an’s i nterview, they also explained the grounds f or their

12 C o m p a r e C a s h D istrib

. C o
. v. N e ely , 9 4 7 S o . 2 d 2 8 6 , 2 9 4 (¶2 9 ) (M i ss. 2 0 0 7 ) (ref u sin g to f

o l lo w th e p o sitio n ad o p ted b y sev eral f ed eral co u rts o f ap p eals th at an em p lo y ee m u st reb u t ev ery

sin g le n o n d iscrim in ato ry reaso n an em p lo y er p ro f

f ers). 3 7evaluation with r easonable clarity and specif icity given the passage of t im e.” Id. As a result, the Eleventh C ircuit f

ound that the em

ploy er had m e t i ts burden of establishing a l egitim ate, nondiscrim inatory

reason f or f a iling to hire Chapm a n. I d. ¶71. Upon review, I f

ind the f acts in the present case are m ore sim ilar to Alvarado than to C h a p m an . The i nterviewers in t he present case f ailed to f ollow General Order 2 2 / 0 2 ’ s d i r ective to prom ote “ sworn personnel possessing skill, knowledge[ ,] and prof ess i o n a l experience to specialty positions[ .]” MDPS ins t e a d u s e d m i nim um standards and an unauthorized oral-technical-question exam . MDPS then shredded the interview notes af ter the i nt e r v i e w . W ithout a correlating scale or rubric f o r grading each o f the objective technical questions asked d u ring the interview, MDPS lacks t he ability to provide “a clear and reasonably specif

i c b asis f or its sub j e c tive a ssessm e nt” of Kirk’s interview. See Alvarado , 492 F.3d at 6 16 (citations o m itted). As a result, I f ind that M DPS f

ailed to m eet its burden to establish a legitim a te, nondiscrim inatory reason f or ref using t o prom ote Kirk. See McCoy , 492 F.3d at 557. ¶72. As discussed , t he record reveals that MDPS f ailed to f o llow authorized agency procedures or p olicies i n condu c ting the prom otional process f o r the vacant lieutenant position. The hearing of f icer f o und that G eneral O rder 22/02 g overned the lieutenant position. H owever, the record dem onstrates that MDPS c om pletely f ailed to f o llow General Order 22/02. Regardless of whichever applicant possessed the m ost skill, knowledge, and experienc e related to the v acant position, the interviewers decided t hat a n oral interview

3 8exam a l o n e , m a de up of s ix o bjective technical questions, w ould constitute the f inal determ ining f

actor as to w h o r e c e i v ed the p rom otion. Also, instead of f ollowing General Order 22/02, MDPS applied the m ini mu m standards applicable to a lieutenant position governed by General Order 22/01 to the specialty position at issue. Moreover, the evidence i n t h e r ecord of the shredding of the interview notes, lack of a scoring rubric, lack of approval of the scoring process, and com position o f the interview panel r ef lects t h a t no saf eguards existed in this unauthorized subjective g rading procedure to a vert discrim ination.
See R owe , 457 F.2d at 359. Jurisprudence ref lects that a prom otion s y stem based on subjective criteria can be f acially neutral but discrim inatorily applied to adversely af f ect one
group. Page , 726 F.2d at 1046. In the present case, MDPS f ailed t o present evidence during the EAB hearing t o show that the interviewers’ chosen s coring m ethod was or ever had been approved by th e a g ency . N ot only does t he record dem onstrate t hat no agency policy authorized such a prom o tional process, but also that no s af eguards existed within the utilized
prom otional p rocess to avoid d iscrim ination or to v alidate the i nterv i e w e r s’ subjective grading of

objective technical questions. See Rowe , 457 F.2d at 359. ¶73. D e s p i t e the panel m em bers’ t estim ony about the utilized prom otional process, the record ref lects no specif

ic evidence to which MDPS can p oint on appeal to m eet its burden and dem onstrate “how or why the interviewers arrived at [ t heir] scores . . . .” See Alvarado , 492 F.3d at 617. The scores f or each interview q

uestion had no supporting scoring rubric, and f ollowing the interview process, Major Gillard shredded both the answers to the exam

3 9and t h e i n terviewers’ notes. As Major Gillard him s elf adm itted, this action was not

authorized by

any agency policy

. ¶74. The record lacks any objective and reasonably specif ic evidence t o validate the interviewers’ initial s ubjective scoring of each ques t i o n o r t h e ir d ecision to then change dif f ering scores to m ore closely align with each other. W ithout a scoring scale o r rubric f or the correct answers, the r e c o rd lacks evidence as t o the correctness of t he answers to the objective questio n s a nd, thus, lacks an explanation of how the interviewers weighed and evaluated the content and correctness of each interviewee’s answer to each question. Cf. id. (noting that the record c ontained no n o t e s o r c o m m ents that shed light o n Alvarado’s i n t e rview perf

orm ance). W i thout such evidence as a m eans to s a tisf y MDPS’s burden o f product i o n , I f

ind insuf f icient MDPS’s m ere a ssertions that Cunningham was the m ost qualif ied candidate f

o r the lieutenant p osition. A s the A lvarado court noted, a n e m ploy er’s f ailure to provide suf

f i cient evidence to m eet its burden of p r o d u c t i on f a ils to af f ord the claim ant “ a f

ull and f air opportunity to dem onstrate pretext.” Id. at 618. See also Burdine , 450 U

. S

. a t 2 5 5 (“[ T]he def endant m ust clearly set f

orth, through the introduction of adm issible evidence, the reasons f or the plaintif

f ’s rejection.”). ¶75. U p on review, I f

ind the record clearly ref lects that MDPS acted arbitrarily and capriciously by f

ailing to f ollow General Order 22/02 or any authorized a g e n c y p r o cedure

or p olicy in this prom otional decision. See Ray , 172 S o. 3d at 187 (¶¶15-16). Furtherm ore,

as discussed, MDPS f

ailed t o articulate a clear and reasonably specif ic f actual basis f

or its

4 0subjective assessm e nt of Kirk dur i n g t h e p r om otional process. See Alvarado , 492 F.3d at

6 1 6 -17. As a result, MDPS f ailed to articulate a legitim ate, nondiscrim inatory r e a s o n f o r Kirk’s nonprom otion. See McCoy , 492 F.3d at 557. I ther e f ore conclude that the EAB’s f inding r e g a

r ding Kirk’s s exual-discrim i nation claim l acked support by substantial e vidence. Accordingly , I would reverse the circuit court’s judgm ent and render a judgm ent in Kirk’s
f av o r . I n s o doing, I w ould f ind that MDPS should prom ote Kirk to the position of lieutenant. As a result, I dissent f rom the m ajority ’s opinion. LEE, C.J., IRVING, P.J., AND WESTBROOKS, J., JOIN THIS OPINION.

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