Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—S.D. Miss.: Deputy director of Mississippi agency, passed over for unposted position, advances Title VII claim, (Jul 25, 2025)

By Justin Marcus Smith, J.D.

A jury should determine whether the reason for failing to hire the employee was pretext for discrimination.

A deputy director of the Mississippi Department of Rehabilitation Services can proceed to trial on Title VII sex discrimination and retaliation claims and a state-law tortious interference claim in connection with a putative failure to promote into an unadvertised position, held a federal district court in Mississippi. The court reasoned that only a jury could determine whether the department knew the deputy director was interested in the position; whether she was more qualified; whether the department retaliated against her in connection with an earlier EEOC charge; and whether the department executive director intentionally blocked her from applying (Darden v. Mississippi Department of Rehabilitation Services, No. 3:24-cv-00144-CWR-ASH (S.D. Miss. July 24, 2025)).

The deputy director, a Black woman, began her employment with the Mississippi Department of Rehabilitation Services in 1985. The department provides services designed to place disabled individuals in gainful employment. The deputy director received several promotions over the years and currently works as a deputy bureau director.

Client services director position. The department was not advertising a client services director (DCS) position when the deputy director first approached the department executive director about it in 2019. The executive director offered the position to a white woman at that juncture.

EEOC charge. The deputy director filed a charge with the EEOC in September 2019 alleging race discrimination and an unfair hiring process for the DCS position. However, she did not file suit, and she continued working at the department as deputy director.

Second opening. The white hire held the DCS position from August 2019 until she resigned in December 2021. While the deputy director did not reiterate her interest in the position, she asserted the department was aware of her interest in light of the EEOC charge.

The executive director again chose not to advertise the DCS opening or to solicit recommendations of interested persons. The department did not promote the deputy director into the DCS position. Instead, the department announced it hired a Black man to fill the vacancy in February 2022.

The deputy director then filed suit asserting claims of sex discrimination and retaliation under Title VII; violation of the Fourteenth Amendment; and tortious interference with employment under Mississippi law. The department and executive director moved for summary judgment on each of the deputy director’s claims.

Sex discrimination. The court declined to grant summary judgment on the Title VII sex discrimination claim because a reasonable jury might find the department knew about the deputy director’s continued interest in the DCS position. The department argued summary judgment was appropriate because the deputy director did not apply in 2022. Even assuming the deputy director was not required to apply for an unadvertised position to make prima facie claims, and there was precedent on-point about this, the department argued summary judgment was also appropriate because the deputy director was not the clearly better qualified candidate.

The court acknowledged that Mississippi law gave the executive director authority to appoint the DCS; however, the statute did not shield the director for intentional exclusion of a candidate simply because she did not apply for a position that was never open to applications. The court noted the deputy director’s EEOC charge could have placed the department on notice of her interest in the DCS position, but that was a fact question for the jury to decide.

The court also perceived a genuine dispute about whether the deputy director was more qualified. With the burden having shifted to the department accordingly, the department offered the facially legitimate and nondiscriminatory justification that it selected the qualified candidate at the department with a management background.

Pretext. Turning to evidence of pretext, the court found the deputy director presented enough evidence to raise a genuine dispute whether she was clearly the better qualified person. Specifically, the court found Mississippi classifies the DCS as a “Deputy Administrator – Tier II” position. The position involves significant managerial responsibilities, including managing other senior managers and multiple organizational units in the agency, and engaging with peers in other agencies, the community, and the legislature.

The department argued the deputy director was not the better qualified employee because her position fell two levels below the 2022 hire’s previous position. The department also alleged the deputy director performed only at the minimum level for success. The deputy director argued that the record lacked any indications of qualifications and performance whereas the 2022 hire had primarily performed roles that did not involve direct client services. The deputy director expressed her view that the DCS position requires extensive experience more aligned with her own record back to the 1990s working directly with clients and overseeing regional service delivery.

The court, after engaging in some comparison of the alleged backgrounds of the deputy director and the 2022 hire, concluded a reasonable jury might find the deputy director was “clearly” the better qualified candidate. Among other things, she appeared to have “years of direct client care experience” that would have made her better prepared to be DCS, even though the 2022 hire had technically held a higher position. A jury would have to weigh the deputy director’s years of direct client care experience against the 2022 hire’s years of executive leadership experience. The best course was to let a jury decide. The court denied summary judgment for the jury to make credibility determinations about who was better qualified.

Retaliation. The court likewise held a jury should decide whether the deputy director made a prima facie case for retaliation. The department argued summary judgment was appropriate because the deputy director failed to show her 2019 EEOC charge caused her failure to be promoted to DCS in 2022. The deputy director argued the 2022 DCS vacancy was essentially the first practical opportunity the department had to retaliate. The court concluded a reasonable jury might decide the department retaliated by ensuring it would not consider the deputy director for the DCS position in 2022.

The court also held a jury should determine whether the department’s proffered reason for not hiring the deputy director amounted to a pretext for discrimination. The department maintained it had shifted the burden to the deputy director, but she alleged the department’s explanation was not credible to the extent it consistently denied promotions to women who challenged department policies. The deputy director pointed to specific alleged examples. Again, the court found it was for a jury to weigh the parties’ credibility and denied summary judgment on this ground.

Tortious interference. The court held summary judgment would be improper on the tortious interference with employment claim. The unresolved question of fact was whether the executive director intentionally blocked the deputy director. The court concluded a reasonable jury could find malice.

The case is No. 3:24-cv-00144-CWR-ASH.

Judge: Reeves, C.

Attorneys: Robert Nicholas Norris (Watson & Norris) for Janet E. Darden. Bethany Brantley Johnson, Mississippi Attorney General's Office, for Mississippi Department of Rehabilitation Services and Christopher Howard.

Cases: SexDiscrimination Retaliation Discrimination PublicEmployees StateLawClaims MississippiNews