source: Caselaw Access Project

author: WILSON, J., CARLTON, J.,

license: Public Domain

text:
    Ola C. KIRK, Appellant v. MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY, Appellee
    NO. 2015-SA-01646-COA
    Court of Appeals of Mississippi.
    05/30/2017
    Rehearing Denied September 26, 2017
    Certiorari Denied January 25, 2018

      JOHN M. MOONEY, Jr., ATTORNEY FOR APPELLANT
    JOHN G. (TRAE) SIMS III, ATTORNEY FOR APPELLEE
   WILSON, J.,

FOR THE COURT:

¶ 1. In June 2013, the Mississippi Department of Public Safety (MDPS) announced that there was an opening for the position of lieutenant in the driver services division of the Mississippi Highway Safety Patrol (MHSP). MDPS interviewed six qualified applicants for the position and selected Master Sergeant Anthony Cunningham—a 51-year-old African-American male with 26-plus years of service at MDPS—for the promotion. Master Sergeant Ola Kirk—a 57-year-old African-American female with 25.5 years of service at MDPS—was identified as the first “alternate choice” for the promotion, but she was not promoted.

¶ 2. Kirk filed a grievance, alleging that she was denied the promotion because of her sex. MDPS denied the grievance, and Kirk appealed to the Mississippi Employee Appeals Board (EAB). Following a two-day hearing before an EAB hearing officer, the hearing officer entered an order denying Kirk’s claim. The hearing officer found that MDPS had articulated a legitimate, nondiscriminatory reason for its decision to promote Cunningham rather than Kirk. The hearing officer further found that Kirk failed to'meet her burden of proof that MDPS’s stated reason was a pretext for intentional discrimination. The en banc EAB affirmed the hearing officer’s findings and decision, and the Hinds County Circuit Court subsequently affirmed the decision of the EAB.

¶ 3. On appeal to this Court, Kirk argues that MDPS failed , to articulate a legitimate, nondiscriminatory reason for its decision. She also argues that she was clearly more qualified than Cunningham, that MDPS’s stated reason for promoting Cunningham was a pretext for intentional discrimination, and that the EAB’s décision is not supported by substantial evidence. As to the former issue, we agree with the EAB that MDPS’s stated reason for its decision—that Cunningham scored higher than Kirk on an interview designed to test the candidates’ knowledge of subjects relevant to the open position—is a legitimate and nondiscriminatory reason for an employment decision. On the latter issue, the EAB is the trier of fact and the judge of witnesses’ credibility, and we find that its decision denying Kirk’s claim is supported by substantial evidence. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶4. -In May 2013, Lieutenant Anthony Wright retired from the driver services division of MDPS. On June 7, 2013, MDPS distributéd a “Position Open Notice” seeking applications to fill Wright’s position. The notice stated that “[a]ny sworn officer within the [MHSP] meeting the qualifications [could] apply.” The primary minimum qualifications for the position were seven years of service as a sworn officer with MDPS, including at least two years “in line or functional supervision as a master sergeant.” The notice stated that there would be oral interviews for qualified applicants, and it identified potential sources of interview questions, including laws and policies related to the driver services division.

¶ 5. Six applicants were deemed qualified and invited to oral interviews, which were held on July 17, 2013. The candidates included Kirk, Cunningham, and four other men. Kirk and 'Cunningham are both African-American. Kirk was fifty-seven years old at the time of the interviews, whereas Cunningham was fifty-one.. Both Kirk and Cunningham have four-year college degrees, and both have been employed by MDPS since 1987. Both have served in supervisory roles and served as acting lieutenant in the driver services division subsequent to Wright’s retirement. Kirk was promoted to master sergeant in 2002, while Cunningham was promoted to" that rank on April 1, 2010. Cunningham had received five work-related commendations, while Kirk had received one. The other four candidates had between seven-teeh and twenty-six years of service at MDPS and between six and thirteen years of service at the rank of master sergeant.

¶ 6. The director of the driver services division, Major Christopher Gillard, chaired the interview panel. Captain Prin-tiss Parker and Lieutenant Jay Kelly, who also serve .in the driver services division, were also on the panel. The panel drafted a list of six questions to ask the applicants during their oral interviews. All six questions related to the operations of the driver services division or laws, policies, or procedures applicable to. the division. The questions were not distributed to any of the candidates prior to the interviews.

¶ 7. At the beginning of each candidate’s interview, Gillard gave a general overview of how the interview would proceed, and the panel members then took turns asking the six questions. The panel members scored each candidate’s answer to' each question on a scale of 1 to 5. After each candidate left the room, the panel would compare scores and discuss the reasons for any differences of more than one point on a particular question,- The candidate’s total score was then tallied based on each panel member’s scores.

¶ 8. After the interviews, Gillard provided Colonel Donnell Berry, Director of the MHSP, with a list of the top three applicants for the position. Gillard identified Cunningham as his “first choice” for promotion and Kirk as his first “alternate choice.” Gillard ranked the .candidates based solely on their 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 recommendation and promoted Cunningham,

¶ 9. On July 24, 2013, Kirk filed a grievance, with MDPS alleging that she had been denied the promotion based on her race, age, or gender. After MDPS denied her claim, Kirk appealed to the EAB. A hearing was held before an EAB hearing officer on March 7 and August 21, 2014. Kirk, Cunningham, Gillard, Parker, Kelly; and Berry all testified. During the hearing, Kirk’s attorney stated that' she was only pursuing her claim of gender discrimination, as Cunningham was also African-American and at least forty years of age. MDPS maintained that Cunningham was promoted because he scored higher on his interview than Kirk, not because of discrimination,

¶ 10. At the hearing, Gillard testified that the promotion was governed by MDPS General Order No. 22/02, which governs “appointments” to “specialized positions.” The Order states that its purpose “is to .provide the Director of [MHSP] and the Commissioner of Public Safety necessary ... .flexibility in filling staff, technical, and special duty positions taking into account a candidate’s skill, knowledge, and professional experience.” The Order pro-rides that candidates' for such positions must hold the rank of master sergeant or higher and be eligible for promotion to lieutenant. The Order further provides that, after reviewing candidates’ qualifications, the Director of MHSP, with the approval of the Commissioner, will make appointments to fill specialized positions. Finally, the Order provides that, notwithstanding any other provisions of the Order or General Order No. 22/01, the Commissioner, after consulting with the Director of MHSP, “shall have the ability to promote in rank sworn personnel possessing skill, knowledge, and professional experience to speciality positions.”

¶ 11. Gillard testified that applicants who satisfied the minimum qualifications set forth in the open-position notice were invited to interview. He also testified that his recommendation to Colonel Berry was based solely on the candidates’ interview scores because all the candidates interviewed “had already met the minimum qualifications.” Gillard testified that the panel ranked Cunningham first and Kirk second based on their interviews and not because of gender, age, or race. MDPS stipulated, and all of its witnesses testified, that Kirk is an excellent employee and was qualified for the position. MDPS simply defended its decision to promote Cunningham based on his superior interview scores.

¶12. The interview questions and the interviewers’ scoring sheets were introduced into evidence. Cunningham received a higher overall score than Kirk primarily because the interviewers scored his answers higher on question 2, which concerned eligibility for a learner’s permit, and question 4, which concerned permanent disability cards. The comments on the interviewers’ scoring sheets are limited. The interviewers noted that Kirk “did not answer questions completely” or “fully.” The interviewers: noted Cunningham’s “knowledge and experience of driver services.”

¶ 13. Gillard and Parker both testified that Kirk received a low score on question 2 because she started to answer correctly but’ then changed her answer and answered incorrectly. Gillard and Parker both testified that Kirk received a low score on question 4 because she stated that she did not know the answer. Kelly testified on the second day of the EAB hearing, thirteen months after the interviews. He could not recall the specifics of the candidates’ answers and could only testify generally as why he would have scored an answer lower or higher. Gillard testified that, immediately after the interviews, he “personally” “shredded” any additional notes taken by the interviewers. He testified that he did so because the questions might be used again, and he did not want the answers to be disclosed. Gillard, Parker,’ and Kelly testified that the interview process for this promotion was consistent with MDPS’s usual practices. All denied that any candidate’s gender, race, or. age influenced the interview process or their scoring.

¶ 14. Kirk testified that she believed that she was the most qualified candidate, that she doubted that Cunningham could have scored higher than her on a fair test, and that she believed she should have been •promoted rather than him. However, she acknowledged that she did not hear Cunningham’s answers to the questions. She also acknowledged that the test questions were fair and “all ... came straight from the policy and procedure book.” She also admitted that she was. concerned about whether she answered question 4 correctly. Kirk also testified that there should have been a female on the interview panel, although she acknowledged that there were-no other females in the driver services division. Kirk testified that she believed she had “been discriminated against by [MDPS],” ,but she was unwilling to .say that any of the interviewers or .Colonel Berry .were “sexist.” When pressed, she speculated that Parker had. discriminated against her, but only because he scored her lower than the other interviewers. Although all three interyiewers scored Cunningham higher than Kirk, Kirk believed that Parker “was not fair about [her] grading-”

¶ 15, Following, the hearing, the EAB hearing officer permitted the parties, to submit briefs and then entered an order with detailed findings, of fact and conclusions of law. He found that Kirk had established a prima facie case of discrimination because she was a member of a protected class (a female), she applied for and was qualified for the promotion, she did not receive the promotion, and a person outside of the protected class (Cunningham, a male) received the promotion. However, the hearing officer also found that MDPS articulated a legitimate, nondiscriminatory reason for its decision to promote Cunningham (his higher interview scores). Finally, the hearing officer found that Kirk failed to,satisfy her burden of proof and persuasion that she was denied the promotion because of her gender and, that MDPS’s stated reason for promoting Cunningham was a pretext. Accordingly, the hearing officer dismissed Kirk’s claim with prejudice.

¶ 16. Kirk appealed the hearing officer’s decision, but the en banc EAB affirmed the hearing officer’s findings and conclusions. Kirk then appealed to circuit court, arguing that the EAB’s decision was arbitrary and capricious, was not supported by substantial evidence, and violated her constitutional and statutory rights. However, the circuit court affirmed the EAB’s decision. Kirk again filed a timely notice of appeal. On appeal, Kirk identifies six issues, all of which relate to her two basic arguments that MDPS failed to articulate a legitimate, nondiscriminatory reason for its decision to promote Cunningham and that she met her burden of proof and persuasion that MDPS’s stated reason for its decision was a pretext for discrimination. We address Kirk’s arguments below.

DISCUSSION

¶ 17. Title VII of the Civil Rights Act of 1964 prohibits an- employer from discriminating against an employee because of the employee’s gender. 42 U.S.C. § 2000e-2(a)(l). “The Title VII inquiry is whether the defendant intentionally discriminated against the plaintiff.” Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007) (quoting Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004)). Mississippi law also prohibits intentional discrimination against a state service employee because of the employee’s gender. Miss. Code Ann. § 25-9-149 (Rev. 2010); see Miss. Emp’t Sec. Comm’n v. Collins, 629 So.2d 576, 581 (Miss. 1993).

¶ 18. Kirk’s claim of gender discrimination is subject to “a precise scheme, or allocation, of the burdens of proof (both production and persuasion).” Cash Distrib. Co. v. Neely, 947 So.2d 286, 292 (¶21) (Miss. 2007). This analysis,'often referred to as the “McDonnell Douglas burden-shifting framework,” proceeds in three steps. See id. at 292-93 (¶¶ 22-23) (discussing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)); see Alvarado, 492 F.3d at 611 (recognizing that the same framework applies to gender-discrimination claims under Title VII when there is “no direct evidence of discrimination”); Miss. Dep’t of Human Servs. v. Baum, 730 So.2d 58, 63 (¶¶ 18-19) (Miss. 1998) (applying the same framework to a state employee’s grievance alleging discrimination); Reid v. Miss. State Hosp./Miss. Dep’t of Mental Health, 53 So.3d 823, 824-25 (¶ 8) (Miss. Ct. App. 2011) (same). First,, the employee must establish a prima facie case of discrimination. This required Kirk to show that she was a member of a protected class, that she was qualified for the promotion at issue, that she was not promoted, and that a person outside her protected class was promoted. See Alvarado, 492 F.3d at 611. MDPS does not dispute that Kirk established a prima facie case, which created an initial “presumption” of “impermissible discrimination.” Neely, 947 So.2d at 297 (¶ 37).

¶ 19. In the second step of the McDonnell Douglas framework, the employer bears “the burden of producing an explanation to rebut the prima facie case— i.e., the burden of producing evidence that the adverse employment actions were taken for a legitimate, nondiscriminatory reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (quotation marks omitted). The employer’s burden at this stage is a “burden of production” only and “can involve no credibility assessment.” Id. at 507, 509, 113 S.Ct. 2742. This burden of production “necessarily precedes the credibility-assessment stage.” Id. at 509,113 S.Ct. 2742. The defendant’s burden at the second step is only “to introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.” Id.

¶20. The third step of the McDonnell Douglas framework is the “credibility-assessment stage.” Id. If the defendant carries its step-two burden of production, “the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Neely, 947 So.2d at 293 (¶ 23) (quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089). “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Id.

¶ 21. The “trier of fact” in this ease was the EAB. On appeal from a decision of the EAB, a “reviewing court must affirm the [EAB] if [its] decision was (1) supported by substantial evidence; (2) not arbitrary or capricious; (3) within the scope or power of the agency; and (4) not a violation of the aggrieved party’s constitutional or statutory rights.” Ray v. MDPS, 172 So.3d 182, 187 (¶15) (Miss. 2015). “[The Supreme] Court has held that substantial evidence means evidence which ... affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” Id. at 187 (¶ 16) (quotation marks omitted). “Substantial evidence exists so long as there is evidence that a reasonable mind might accept as sufficient to support a conclusion.” Id. “The reviewing court is not authorized to substitute its judgment for that of the [EAB] where there is substantial (that is, more than a scintilla of) evidence to support the finding.” Id. (quoting Miss. Pub. Serv. Comm’n v. Merchants Truck Line Inc., 598 So.2d 778, 782 (Miss. 1992)) (brackets omitted). The reviewing court also must bear in mind that “[t]he EAÍ3 is the trier of fact as well as the judge of the witnesses’ credibility)” Id. at 188 (¶ 20) (quotation marks omitted); accord, e.g., Miss. Dep’t of Wildlife, Fisheries & Parks v. Bradshaw, 196 So.3d 1075, 1082-83 (¶ 19) (Miss. Ct. App. 2016).

¶22. Below, we first address whether MDPS met its step-two burden of production, i.e., its burden to articulate a legitimate, nondiscriminatory reason for its decision to promote Cunningham rather than Kirk. We thén consider whether there is substantial evidence to support the EAB’s finding, as the trier of fact, that Kirk failed to meet her - ultimate burden of proving that MDPS’s stated reason was a pretext and that MDPS intentionally discriminated against her and refused to promote her because of her gender.

I. MDPS articulated a legitimate, nondiscriminatory reason for its decision to promote Cunningham rather than Kirk.

¶23. MDPS’s stated reason for promoting Cunningham rather than Kirk is that he scored higher on his interview, which tested the candidates’ knowledge of subjects related to the open position of lieutenant in the driver services division. 'In support, MDPS introduced evidence of the interview questions that candidates were asked and interviewers’ scoring sheets. As discussed above, members of the interview panel also testified as to why Kirk received a lower score on two questions, namely, that she answered one question incorrectly after changing her answer, and she did not know the answer to another question. Kirk acknowledged that the interview questions were fair and tested knowledge relevant to the open position, and she also admitted that she was concerned about one of her answers for which she received a low score. As noted above, Kirk received the second-highest score of the six candidates that were interviewed; however, Cunningham received the highest score, and MDPS maintains that he was promoted for that reason.

¶ 24. It should be evident that the relative quality of candidates’ answers to interview questions designed to test their knowledge relevant to the open position is a .legitimate, nondiscriminatory reason for an employer’s decision. Caselaw recognizes this common-sense proposition. See, e.g., Harris v. Mayor & City Council of Baltimore, 429 Fed.Appx. 195, 203-04 (4th Cir. 2011); Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 616 (6th Cir. 2003). Therefore, MDPS met its step-two “burden of production.” Hicks, 509 U.S. at 507, 113 S.Ct. 2742.

¶ 25. To reiterate, this step of the McDonnell Douglas framework “can involve no credibility assessment.” Id. at 509, 113 S.Ct; 2742. The defendant’s only burden is “to introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.” Id. If the trier of fact believed that MDPS promoted Cunningham because he provided the best answers to questions. designed to test the candidates’ knowledge of relevant subjects, then obviously that would permit a conclusion that there was a nondiscriminatory reason for MDPS’s decision to promote Cunningham rather than Kirk.

.¶26. It is true, as Kirk and the dissent argue, that a “subjective reason” for an employer’s decision “is a legally sufficient, ■ legitimate, nondiscriminatory reason” only “if the [employer] articulates a clear and reasonably specific factual basis upon which-it based its subjective opinion.” Chapman v. AI Transp., 229 F.3d 1012, 1034 (11th Cir. 2000) (en banc). MDPS presented a sufficiently specific basis for -its decision in this .case. In Chapman, the en banc Eleventh Circuit held that the employer met its burden based on interviewers’ testimony that the plaintiff did not give “sharp” or “concise” answers, “did not take an aggressive approach in asking ... questions about the position,” and “wasn’t very clear about” his reasons for leaving prior jobs; and that the employee who was promoted just “made a better presentation of himself and his skills.” Id. at 1035. One interviewer testified that he did not “have an answer to” why one candidate did better than the other; he “just ... - felt [he] had more confidence in [the promoted employee] in the way he presented his, work history.” Id.

¶ 27. The reasons provided by MDPS in this case were at least as clear and specific as those provided in Chapman. Again, MDPS introduced evidence of the interview, questions asked, which Kirk admitted were fair and relevant, and evidence that Kirk answered two questions incorrectly. MDPS provided a specific, nondiscriminatory reason for. its decision to. promote Cunningham, and Kirk had an opportunity to respond and offer evidence that it was a pretext. Whether MDPS’s proffered. reason was the true reason for.its decision or a pretext was- then an issue for the trier of fact to decide.

¶28. For the same reason, Kirk’s and the dissent’s reliance on Alvarado v. Texas Rangers, supra, is misplaced. In Alvarado, the employer relied on interview scores but offered no “explanation []or evidence of how or why the interviewers arrived at those scores.” Alvarado, 492 F.3d at 617. Unlike this case, the employer in Alvarado could not “point[ ] to any .,.. testimony by the [interviewers] that would shed any light on why they scored [the plaintiff] and the other candidates the way they did.” Id. Here, MDPS provided not only the candidates’ scores but also reasons why Kirk scored lower than Cunningham. This is sufficient to distinguish Alvarado and to meet the step-two burden, of production. See Harris, 429 Fed.Appx. at 204. At step two of the McDonnell Douglas framework,, the employer’s only burden is to provide a nondiseriminatory explanation for its decision.

¶ 29. Before moving to step three of the McDonnell Douglas framework, we briefly address .two additional points that the dissent raises under the heading of step two. First, the dissent makes repeated claims along the lines that MDPS “completely failed to follow General Order 22/02.” Post at (¶ 72). In .support .of these .claims, the dissent cites the Order’s statement that the Commissioner of MDPS, after consulting with the Director of MHSP, “shall have the ability to promote in rank sworn personnel possessing skill, knowledge, and professional experience to speciality positions.” Post at (¶45). The dissent follows with conclusory assertions that the selection process used in this case did not achieve this end. However, nothing in the text of 22/02 purports to prohibit the process used by MDPS in this case. Indeed, reliance on minimum .experience requirements followed by a test of the candidates’ knowledge relevant, to the vacant position is entirely consistent with the stated purpose of 22/02. Moreover, Kirk’s claim for relief before the EAB was not that MDPS failed to follow agency procedures. Rather, she alleged intentional discrimination based on gender. Therefore, even if MDPS somehow deviated from 22/02, that issue,would be, at most, relevant to the step-three question whether its stated reason for the promotion was a pretext for illegal discrimination. A deviation from agency procedures does not transform a logically and facially nondiscriminatory reason into a discriminatory one.

¶ 30. The dissent also complains that MDPS’s interview process “lacked safeguards,” “had no scoring rubric,” and relied on “subjective grading.” Post at (¶¶ 41, 59). However, there is nothing inherently wrong or discriminatory about any of these things. Every day, all kinds of employers make employment decisions based on “subjective” evaluations .without scoring rubrics or other “safeguards.” For example, that is what judges do when hiring law clerks and other staff. Not every employment decision is reducible, to a multiple choice test or a purely objective scoring system. To be clear, this is not to dismiss the possibility that subjectivity, informality, or a lack of documentation may, in some cases, serve to obscure invidious discrimination. However, this-possibility is an issue for the trier of fact at the third step of the McDonnell Doug las framework. A determination that Cunningham’s answers to interview questions demonstrated greater knowledge of the relevant subject matter is a legitimate, nondiscriminatory reason even if it depends on interviewers’ subjective assessments of the candidates’ answers.

¶ 31. In summary, “[b]y producing evidence (whether ultimately persuasive or not) of nondiscriminatory reasons, [MDPS] sustained [its] burden of production,” which brings us to the end of step two. Hicks, 509 U.S. at 509, 113 S.Ct. 2742. Step two of the McDonnell Douglas framework “can involve no credibility assessment,” “[f]or the burden-of-production determination necessarily •precedes the credibility-assessment stage.” Id. “The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may ... suffice to show intentional discrimination” and “permit the trier of fact to infer the ultimate fact of intentional discrimination.” Id. at 511, 113 S.Ct. 2742. However, that is an issue for the trier of fact under step three of the framework. Id.

II. The EAB’s decision is supported by substantial evidence.

¶32. In an employment discrimination case, the ultimate question for the trier of fact is whether the plaintiff has proven, by a preponderance of the evidence, that the employer’s stated reason for the adverse employment decision was a pretext for impermissible discrimination. See Neely, 947 So.2d at 293 (¶23). Thus, the basic issue for the trier of fact is whether the employer’s explanation for its decision, as presented through witnesses and other evidence, is credible and believable. See Hicks, 509 U.S. at 507-11, 113 S.Ct. 2742. When a state-service employee appeals to the EAB, “[t]he EAB is the trier of fact as well as the judge of the witnesses’ credibility.” Ray, 172 So.3d at 188 (¶ 20) (emphasis added; quotation marks omitted). A reviewing court may not “reweigh[ ] the evidence” or “substitute] its own judgment” for that of the EAB; rather, the court must defer to the EAB’s factual findings and affirm if there is “substantial evidence” in the record to support its decision. Id. at (¶ 21).

¶ 33. In this case, the findings and decision of the EAB are supported by substantial evidence. All three members of the MDPS interview panel testified that Cunningham scored higher than Kirk on the interview and was recommended for promotion because he provided superior answers to the interview questions—and not because of Kirk’s gender. The EAB, not this Court, is the judge of these witnesses’ credibility. The hearing officer also found that Kirk’s qualifications did not compel or support an inference of discrimination because “Cunningham also had significant qualifications and experience.” The hearing officer observed that “[t]he ultimate question in every employment discrimination case is whether the [p]laintiff was the victim of discrimination.” On this issue, the hearing officer found that Kirk failed to meet her burden of proof that MDPS’s stated reason for promoting Cunningham “was untrue.” And the hearing officer found that “Kirk ... failed to meet her burden of proof that she was intentionally denied the ... promotion because of her sex.” The EAB affirmed the hearing officer’s findings and decision, and we must also affirm the decision of the EAB, as its decision is supported by substantial evidence.

¶ 34. Kirk argues that her qualifications compel an inference of discrimination, but the hearing officer and the EAB found otherwise, and the EAB’s decision is supported by substantial evidence. To prove pretext based on qualifications, the plaintiff must show that she was “ ‘clearly better qualified’ (as opposed to merely better or as qualified) than the employee[] who [was] selected [for promotion].” Moss v. BMC Software Inc., 610 F.3d 917, 922 (5th Cir. 2010). This requires the plaintiff to prove that “no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Id. at 923.

¶35. MDPS stipulated that Kirk—who the panel ranked second of the six candidates interviewed for the position—was qualified and an exceptional employee. MDPS simply defended its decision to hire Cunningham based on his superior interview. The candidates’ resumes were similar. Both have college degrees and have been employed by MDPS since 1987. Both served as acting lieutenant in the driver services division following Lieutenant Wright’s retirement, and both have served in supervisory roles. Kirk was promoted to master sergeant in 2002, whereas Cunningham was promoted in 2010; however, as the hearing officer noted, Cunningham has five, work-related commendations, whereas Kirk has only one. Either candidate was qualified and could have been selected for the position. There is substantial evidence to support the hearing officer’s finding, affirmed by the EAB, that Kirk was not “clearly” more qualified than Cunningham.

¶36. Finally, we address Kirk’s argument that she was entitled to an “adverse inference” because MDPS’s failure to retain interview notes allegedly violated an EEOC regulation. MDPS retained and produced copies of the interview questions and the scoring , sheets completed by the interviewers; however, as noted above, Major Gillard testified - that he shredded any handwritten notes taken by the interviewers because thé interview questions might be reused and he ,did not want any answers disclosed. The notes that were destroyed were described as “shorthand” or “scratch” notes, and Colonel Berry testified that agency policy did not require Gillard to retain the notes. Kelly testified that he did not recall taking any notes. The en banc EAB rejected Kirk’s argument based on the notes, affirming the hearing officer’s implicit finding that their destruction was not “significant.”

¶ 37. For two reasons, we conclude that Kirk’s argument is without merit. First, we.agree with the United States Court of Appeals for the Seventh Circuit that “[ejmployers are not required to keep every single piece of scrap paper that various employees may create during the termination process”—or, in this case, the promotion process. Rummery v. Ill. Bell Tel. Co., 250 F.3d 553, 558-59 (7th Cir. 2001). “It is sufficient that the employer retains only the actual employment record itself, not the rough drafts or processes which may lead up to it.” Id. at 559. In Rwmmery, the Seventh Circuit held that the employer complied with the EEOC regulation by retaining “final ranking sheets” that aggregated employees’ rankings by multiple managers who had evaluated their- performance. Id. at 558-59, The court held that the 'employer was not required to retain “evaluation notes” that were merely-“informal ñotes” that individual evaluators “may have taken.” Id. Likewise in this case, MDPS retained the interview questions and score sheets; we do not believe that federal law required the. agency to retain “scratch” or “shorthand” notes that may have been taken by interviewers.

¶38. Second, as noted above, the EAB acknowledged Kirk’s argument ‘but did not find it persuasive. In Thomas v. Isle of Capri Casino, 781 So.2d 125 (Miss. 2001), our Supreme Court held that a casino patron was entitled to the benefit of an adverse inference in a case involving a disputed slot machine jackpot because the casino had destroyed a central processing unit that would have conclusively resolved the dispute. Id. at 133-34 (¶¶ 36-43). Nonetheless, the Court still affirmed the Gaming Commission’s decision rejecting the patron’s claim because there was “ample secondary evidence” to support the decision. Id. at 134 (¶ 43). This included witnesses “who offered conflicting testimony,” and, “as the finder of fact,” the Commission “was responsible for judging their veracity.” Id. at (¶ 44). The- same is true in this case. The EAB affirmed the hearing officer’s implicit finding that the shredding of the notes was' not “sighificant.” Further, there was substantial evidence to support the EAB’s ultimate finding that Kirk failed to meet her burden of proving- that MDPS’s stated reason was a pretext for intentional discrimination.

CONCLUSION

¶39. At step two of the MeDormell Douglas framework, MDPS articulated a legitimate/ nondiscriminatory reason for its decision to promote Cunningham rather than Kirk. Thus, at step " three of the framework, the trier of fact hád to determine whether Kirk met her burden of proving that the agency’s stated reason was a pretext for intentional discrimination. The EAB was the trier of fact and the judge of witnesses’ credibility in this case. There is substantial evidence to support its findings and' decision denying; Kirk’s claim. Therefore, we affirm.

¶ 40. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

GRIFFIS, P.J., BARNES, ISHEE AND FAIR, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., IRVING, P.J., AND WESTBROOKS, J. GREENLEE, J., NOT PARTICIPATING.

LEE, C.J., IRVING, P.J., AND ■ WESTBROOKS, J., JOIN THIS OPINION.

CARLTON, J.,

DISSENTING:

¶ 41.1 respectfully dissent from the majority’s opinion. Upon review, I find that MDPS acted arbitrarily by failing to follow its own applicable General Order 22/02 to promote someone to fill the vacant lieutenant position. Instead of following General Order 22/02, the récord shows that MDPS used an unauthorized procedure of an interview panel and an oral exam comprised of six objective technical questions to determine who received the lieutenant promotion. The record also shows that MDPS used General Order 22/01, instead of General Order 22/02, to apply a minimum-requirement standard. Moreover, the record demonstrates that MDPS’s unauthorized technical-interview exam lacked safeguards to provide a sufficient factual basis for the agency’s subjective promotional decision. In addition, the record reflects that the oral-technical-question exam had no scoring rubric to show how-the applicants’ interview answers correlated with the correct answers for each question. Thus, each interviewer was left on his own to subjectively score the correctness of each question. Furthermore, the record reflects that the interviewers’ notes were destroyed following the completion of the interview process. As- a result, I find that thé EAB’s ruling lacked the support of substantial evidence and that MDPS. acted arbitrarily and„capriciously by failing to follow its own General .Order 22/02 in reaching the promotional decision. I would .therefore . reverse the circuit court’s judgment upholding MDPS’s nonpromotion of Kirk and render a judgment in Kirk’s favor. In so doing, I would order MDPS to promote Kirk to lieutenant.

¶ 42. At the end of May 2013, Lieutenant Wright retired from the driver-services division of MDPS. On June 7, 2013, MDPS posted a notice to fill the vacant lieutenant position. To apply for the position, applicants had to meet the following minimum requirements: (1) graduate from a standard four-year high school or the equivalent; (2) complete the MHSP Cadet Training School; and (3). possess seven years of experience “as a sworn officer with the [MDPS/MHSP], of which two ,.. years must have been in[-]line or functional supervision as a [mjaster [sjergeant.”

¶ 43. Kirk was among the individuals who applied for the promotion, and she was the only female applicant for the position. Kirk, Cunningham, and several other master sergeants each served as the acting lieutenant -prior to and after the vacancy for the lieutenant position. At the time of the applicant interviews for the vacant lieutenant position, Kirk was serving as the acting lieutenant. As the record reflects, she had been employed with MDPS since 1987 and had served as a master sergeant for eleven years prior to seeking the lieutenant promotion.

¶ 44. Testimony presented at the EAB hearing on Kirk’s appeal reflected that, during the relevant time period, MDPS had two general orders that governed promotions—General Order 22/01 and General Order 22/02. General Order 22/01 provided a two-step testing procedure for the merit-based promotions of sworn personnel within MDPS and MHSP. The first step, the screening phase, included the following: (1) a written exam; (2) an oral interview; and (3) the applicant’s experience and education. The second step, the appointment-board phase, consisted of an interview with a three-member board. General Order 22/01 stated that, to be eligible to test for a promotion to the rank of lieutenant, an applicant had to serve for seven years, with two of those years being served as a master sergeant.

¶ 45. In contrast to General Order 22/01’s governance of merit-based promotions for sworn personnel, General Order 22/02 set forth the selection procedure for specialized positions. General Order 22/02 provided:

A. Candidates for a specialized position must hold the rank of [m]aster [s]er-geant or higher and be eligible to qualify as a [l]ieutenant or. higher.
B. After reviewing the qualifications of the candidates, the Director of the Office of [MHSP,] with the approval of the Commissioner of [MDPS,] will appoint the candidate to fill the position.
C.Notwithstanding the provisions of General Order 22/01 or this Order, the Commissioner of [MDPS] shall have the ability to promote in rank sworn personnel possessing skill, knowledge^] and professional experience to specialty positions, such as but not limited to, those listed above at his/her discretion after consulting with the Director of [MHSP.]

¶46. During the EAB hearing, Major Gillard testified that General Order 22/02 applied to the vacant lieutenant position in' the driver-services division because the position was a “specialized position.” The hearing officer agreed. The hearing officer found that “General Order 22/01 controls tested positions in both the Enforcement Division of [MHSP] (Enforcement Troopers) and the Mississippi Bureau of Investigation” and that, “[candidates for merit[-]promotion testing under General Order 22/01 must be sworn [MHSP] Officers.” By contrast, the hearing officer concluded that “General Order 22/02 is designated for promotion of Speciality [positions, as well as for other positions not specifically named for promotion by another General Order.” Consistent with Major Gillard’s testimony during the hearing, the EAB officer determined that General Order 22/02 controlled promotions in driver services and, as a result, applied to the promotional process for the lieutenant position at issue..

¶47. The hearing officer further found that, in accordance with General Order 22/02 and the job-posting notice, both Kirk and Cunningham met all the minimum qualifications required to interview for the vacant lieutenant position. Like Kirk, the hearing officer found that Cunningham had been employed with MDPS since 1987 and had held the rank of master sergeant for at least two years prior to applying for the vacant lieutenant position. As previously noted, the hearing officer found that Kirk had served as a master sergeant for eleven years. With regard to Kirk’s other qualifications, the hearing officer found that Kirk had: (1) supervised as many as fifteen employees and one sworn officer since becoming a master sergeant; (2) supervised the day-to-day operations of the driver-services division in District II; and (3) received one work-related commendation. With regard to Cunningham’s qualifications, the hearing officer found that Cunningham had: (1) served as a master sergeant for more than three years prior to seeking the promotion; (2) supervised eleven or twelve driver-license examiners and one sworn officer; and (3). received five work-related commendations. The record shows that the hearing officer looked at the minimum qualifications for the lieutenant position instead of considering which applicant was the most qualified in terms of skill, knowledge, and professional experience as required by General Order 22/02.

¶ 48. As required by the job-posting notice, all six of the interviewees for the vacant lieutenant position had held the rank of master sergeant for at least two years. As stated, however, Kirk had held the position of master sergeant for the previous eleven years and was the most recent acting lieutenant of the driver-services division. On July 17, 2013, instead of following General Order 22/02, a three-person panel interviewed the six applicants for the position. The questions asked during the interview exam constituted objective technical questions and not subjective questions. However, as stated, the interviewers were not provided a rubric for scoring the correctness of the answers to the questions. The interviewers could score the questions however they chose even though the questions constituted objective technical questions.

¶ 49. Major Gillard, the then-director of the driver-services division, conducted, the interview process. Major Gillard selected Captain Parker and Lieutenant Kelly as the other two interview panelists. At the time of the interview,' Captain Parker was the deputy director of the driver-services division, ahd Lieutenant Kelly was a lieutenant in the division. Due to their positions within the driver-services division, all three men were in Kirk’s supervisory chain of command.

¶ 50. Major Gillard and Captain Parker determined that, once applicants met the minimum qualifications to interview for the vacant lieutenant position, the applicants’ interview score would become the sole factor for determining who received the pro-motipn. Major Gillard and Captain Parker testified that they developed six technical questions (as well as the corresponding answers) for the interview. However, as noted, the interviewers were provided no scoring scale or rubric for grading the answers to the questions. The panel asked each interviewee these same six questions.

¶ 51. In response to the interviewees’ oral answers to the questions, the interview panel took notes and scored each response between one and five, with five being the best score. Since no scale or rubric existed for how to grade the answers to the questions, each panelist subjectively graded the interviewees’ answers. Prior to the interviews, the panel agreed that no interviewer’s final score of a candidate would be more than one point different from another interviewer’s fihal score. As a result, after completing each interview, and before entering a candidate’s final overall score, the panel members compared their- subjective individual scores for the candidate to determine .whether any scoring discrepancies existed. Where the scores for a specific question differed by more than one point, the interviewers discussed the scores and changed them to more closely align with one another.

, ¶ 52., Based on the applicants’ interview responses, the panel’s final scores for the candidates ranged from forty-three to seventy-three. Cunningham received the highest score at seventy-three, and Kirk received the second highest score at sixty-four. After completing the interview process, Major Gillard testified that he shredded both the answers to the exam and the interviewers’ notes. Although admitting that this was not agency policy, Major Gillard asserted he took this step as an added precaution to protect the integrity of the interview process.

¶ 53. Although the record failed to contain the interviewers’ notes or the correct exam answers, the record did contain the interviewers’ score sheets for each applicant. As discussed, since no scoring rubric existed, the interviewers could score the answer to each question between one and five as the interviewer saw fit. The score sheets showed that the interviewers gave Kirk a significantly lower score than Cunningham on interview questions 2 and 4. At the EAB hearing, the interviewers testified as to why they awarded Kirk a lower score on these questions.

. ¶ 54. Interview question 2 asked the interviewees to explain what they would advise in the following scenario: “A [mjaster [sjergeant calls and tells you that [an individual who is sixteen years and nine months old] has an Alabama learner’s permit, . has held [the permit] for eight months[,] and wishes to get a Mississippi intermediate license.” In discussing interview question 2, both Major Gillard and Captain Parker explained that Kirk initially gave a correct answer to the question but then changed her answer to an incorrect response. As a result, Captain Parker testified that he awarded Kirk fewer points than he would have if she had stuck to her initial answer. Major Gillard also testified that he originally awarded Kirk a four out of five but then lowered her score once she changed her answer to the incorrect response. As for Lieutenant Kelly, he testified that he did not recommend Kirk for the promotion because she failed to fully answer the questions.

¶ 56. Interview question 4 asked the interviewees what “B” represented on a permanent disability card. Although the testimony reflected that “B” stood for “both,” Captain Parker and Lieutenant Kelly explained that an applicant could answer “both” and receive a good score or the applicant could elaborate on the answer and receive an even higher score. In explaining the lower scores they gave Kirk on interview question 4, both Major Gillard and Captain Parker testified that Kirk answered that she did not know the correct answer to the question. Lieutenant Kelly again testified that he gave Kirk a low score because she failed to answer the question. Although Kirk admitted during her hearing testimony that she was unsure 'about her answer for question 4, she stated that she answered every single interview question. Iri addition, Kirk testified that the six interview questions were fair because they came straight from the manual on agency policies and procedures.

¶ 56. Because Cunningham received the highest cumulative oral interview score, the interview panel recommended that Colonel Berry, the. MHSP Director, promote Cunningham to the vacant, lieutenant position. Following Cunningham’s pro.motion, Kirk filed a grievance with MDPS and asserted that she was not promoted due to her race, age, and gender. As the record reflects, Kirk is a black female over the age of forty, and Cunningham is a black male over the age of forty. -

¶ 57. After failing to receive her requested'relief through MDPS’s grievance process, Kirk appealed to the EAB. At the conclusion of the EAB hearing, Kirk stipulated that, based on the evidence, she would no longer pursue her discrimination claims based on race and age. As a result, the EAB hearing officer only determined whether MDPS discriminated against Kirk on the basis of her sex.

¶ 58. As previously discussed, the hearing officer found that General Order 22/02 applied to the promotion at issue because the position constituted a specialty position. The hearing officer also found that both Kirk and Cunningham met the requirements to interview for the position even though General Order 22/02 directed the promotion of “sworn personnel possessing skill, knowledget,] and professional experience to specialty positions[.]” The hearing officer also concluded that Kirk was not more clearly qualified for the position than Cunningham.

¶ 59. In addition, the hearing officer found that Kirk never introduced evidence to show that any of her supervisors had ever made a derogatory remark about her sex at any time during her employment with MDPS, and she never stated during the appeal hearing that the panel interviewers were sexist. However, the hearing officer failed to address whether a sufficient factual basis or safeguards existed to support the interview panel’s subjective grading and unauthorized promotional procedure. While acknowledging .that no females sat on the interview panel, the hearing officer also found that there were no female supervisors in driver services who would have been qualified to sit on the interview panel. The hearing officer ultimately concluded that MDPS neither discriminated against Kirk based upon any impermissible ground nor denied Kirk the promotion based on her sex. As stated, without addressing, the unauthorized grading procedure or subjective grading used by the interview panelists, the hearing officer determined that Cunningham received the promotion for a legitimate, nondiscriminatory reasoii—his higher score on the interview. As a result of his findings, the Hearing officer denied Kirk’s requested relief.

¶ 60. On March 6, 2015, the hearing officer , entered his order finding that MDPS had not failed to promote Kirk based on her sex. Kirk then appealed to the full EAB, which affirmed the hearing officer’s decision. On May 1, 2015, Kirk filed a petition with the- circuit court to appeal the decision reached by the full EAB. Aggrieved by the circuit court’s judgment affirming the EAB’s determination, Kirk appeals to this Court.

¶ 61. The Mississippi Supreme Court has held:

The scope of judicial review of the findings and actions of an administrative agency is well-settled. The reviewing court must affirm the agency decision if the decision was (1) supported by substantial evidence; (2) not arbitrary or 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 long as there is evidence that a reasonable mind might accept as. sufficient to support a conclusion. The reviewing court is not authorized to substitute its judgment for that of the agency where there is substantial (that is, more than a scintilla of) evidence to support the finding. Moreover, there is a _ rebuttable presumption in favor of the agency decision and the burden of proof is on the party challenging that decision.

Ray v. Miss. Dep’t. of Pub. Safety, 172 So.3d 182, 187 (¶¶ 15-16) (Miss. 2015) (internal citations and quotation marks omitted).

¶ 62. I also acknowledge that jurisprudence establishes that a promotional system based on subjective criteria can be facially neutral but yet discriminatorily applied so that it adversely affects one group. Page v. U.S. Indus. Inc., 726 F.2d 1038, 1046 (5th Cir. 1984).

¶ 63. Kirk argues that the evidence submitted to the EAB demonstrated MDPS failed to promote her due to her gender. As a result, she contends the EAB’s finding that MDPS did not discriminate against her lacked the support of substantial evidence. She therefore asks this Court to reverse the EAB’s ruling.

¶ 64. Upon review, I agree that MDPS acted arbitrarily by failing to follow General Order 22/02. I also find that MDPS’s subjective promotional process lacked sufficient safeguards against discrimination and that its decision lacked the support of a clear and reasonably specific factual basis. See Alvarado v. Tex. Rangers, 492 F.3d 605, 616-17 (5th Cir. 2007); Rowe v. Gen. Motors Corp., 457 F.2d 348, 359 (5th Cir. 1972). As a result, I find that substantial evidence failed to support the EAB’s findings. I would therefore reverse the circuit court’s judgment affirming the EAB’s decision and render a decision in Kirk’s favor.

¶65. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the United States Supreme Court established a three-pronged test for a plaintiff to prove by circumstantial evidence that she suffered intentional discrimination. First, the plaintiff must establish a prima facie case of discrimination. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). To establish a prima facie case of sexual discrimination, Kirk must prove: “(1) she is a member of a protected class; (2) she was qualified for her position; (3) she was subject to an adverse employment action; and (4) she was replaced by someone outside her protected class or received less favorable treatment than did a similarly situated individual not in the protected class.” Austen v. Weatherford Coll., 564 Fed.Appx. 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 reflects that Kirk established a prima facie case of sexual discrimination. See Alvarado, 492 F.3d at 611 (“Title VII proscribes an employer from ... discriminating against any individual because of that individual’s sex.” (citation omitted)). The parties raise no dispute as to the following facts: (1) Kirk, as a female, is a member of a protected class; (2) she met the minimum qualifications necessary to interview for the vacant lieutenant position; (3) she experienced an adverse employment action when she failed to receive the sought-after promotion; and (4) Cunningham, who was not a member of Kirk’s protected class, received more favorable treatment when MDPS promoted him instead of Kirk. See Austen, 564 Fed. Appx. at 93. Because Kirk satisfied the first prong of the McDonnell Douglas analysis, the burden shifted to MDPS “to articulate a legitimate, nondiscriminatory or nonretaliatory reason for its employment action.” McCoy, 492 F.3d at 557 (citations omitted). MDPS’s articulated reason for not promoting Kirk was that the interview score constituted the sole determining factor for awarding the promotion, and Cunningham received a higher interview score than Kirk..

¶ 67. In previously acknowledging that a promotional system based on subjective evaluation and the favorable recommendation by an immediate supervisor can provide a ready vehicle for discrimination, the Fifth Circuit invalidated a subjective promotional system that resulted in discrimination where the ■ system embodied the following mechanisms: (1) the foreman’s recommendation was the single most important factor in the promotional process; (2) the foremen received no written instructions about the qualifications necessary for promotion; (3) the controlling standards were subjective and vague; (4) hourly employees received no notification of promotional opportunities or the requisite qualifications for jobs; and (5) the procedure contained no safeguards to prevent discriminatory practices, Rowe, 457 F.2d at 358-59.

¶ 68. In further discussing subjective promotional practices, the Fifth Circuit has stated:

An employer’s subjective reason for not selecting a candidate, such as a subjective assessment of the candidate’s performance in an interview, may serve as a legitimate, nondiscriminatory reason for the candidate’s non-selection. See [Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004)] (recognizing that McDonnell Douglas does not preclude an employer from relying on subjective reasons for its personnel decisions); see also Chapman v. AI Transport, 229 F.3d 1012, 1034 (11th Cir. 2000) (“It is inconceivable that Congress intended anti-discrimination statutes to deprive an employer of the ability to-rely on important criteria in its employment decisions merely because those criteria are only capable of subjective evaluation.”). Such a reason will satisfy the employer’s burden of production, however, only if the employer articulates a clear and reasonably specific basis for its subjective assessment. See [Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)]; Patrick, 394 F.3d at 316-17; see also Chapman, 229 F.3d at 1034 (“A subjective reason is a legally sufficient, legitimate, nondiscriminatory reason if the defendant articulates a clear and reasonably specific factual basis upon which it based its subjective opinion.”); EEOC v. Target Corp., 460 F.3d 946, 957-58 (7th Cir. 2006) (agreeing with the Eleventh Circuit that “an employer must articulate reasonably specific facts that explain how it formed its subjective opinion of the applicant, in order to meet its burden under Burdine”).

Alvarado, 492 F.3d at 616-17 (emphasis added).

¶ 69. In Alvarado, a female state trooper applied for a transfer to the Texas Rangers. Id. at 609.. After failing to receive the transfer, Alvarado filed a sexual-discrimination lawsuit. Id. at 610. In reviewing the district court’s grant of summary judgment to the employer, the Fifth • Circuit found that the employer failed to satisfy its burden to proffer a legitimate, nondiserim-inatory reason because the employer provided no explanation or evidence “of how or why the interviewers arrived at [their] scores” or why the interviewers “rated the other .candidates, particularly the ten men who were selected for the Rangers, higher than Alvarado.” Id. at 617. The Fifth Circuit further noted that “Alvarado’s score sheets contain no notes or comments on her interview performance, and [the employer] has not pointed to any deposition testimony by the [interviewers] that would shed light on why they scored Alvarado and the other candidates the way they did.” Id. “Without some indication of the factual basis or. specific reasons for Alvarado’s interview score,” the Fifth Circuit concluded, that Alvarado’s interview score was “at least as consistent with discriminatory intent as it [was] with nondiscriminatory intent because Alvarado may well have received the relatively low interview score on account of her sex.” Id. (citation omitted). ,

¶70. By contrast, in Chapman, the Eleventh Circuit found that the employer offered a sufficiently specific explanation for its failure to hire the plaintiff, Chapman, based on his interview. Chapman, 229 F.3d at 1028. In Chapman, the employer offered two legitimate, nondiscriminatory reasons for failing, to hire Chapman. Id. The Eleventh Circuit recognized that the employer’s second proffered reason—Chapman’s poor interview—constituted a subjective reason for failing to hire Chapman. Id. However, in discussing the employer’s proffered subjective reason for refusing to hire Chapman, the Eleventh Circuit found that the employer “offered a clear and reasonably specific explanation of why Wogsland and Turnquist, the decision . makers, arrived -at that subjective conclusion.” Id. at 1035. As the Eleventh Circuit stated, the decision makers offered the following explanation to support their decision not to hire Chapman:

Wogsland observed that Chapman’s imprecise answers were not “the answers -he. would expect Chapman needed to be able to give to technicians under his control, within his unit.” As an example of an unclear answer given by Chapman, Wogsland stated that Chapman “wasn’t, very clear about why he had gone from Home Insurance Company to several other, positions before he got to Transport.”
Turnquist explained that he[,] too[,] was concerned about how Chapman presented his work history.-In comparing Wiggins[, another candidate,] and Chapman’s interviews, Turnquist stated:
I thought that ... Wiggins made á better presentation of himself and his skills. ... I don’t have an answer to that[.] ... I felt I had more confidence in Graham in the way he presented his work history.

Id. The Eleventh Circuit concluded, that, “[e]ven though Wogsland and Turnquist subjectively evaluated Chapman’s interview, they also explained the grounds for their evaluation with reasonable clarity and specificity given the passage of time.” Id. As a result, the Eleventh Circuit found that the employer had met its burden of establishing a legitimate, nondiscriminatory reason for failing to hire Chapman. Id.

¶ 71. Upon review, I find the facts in the present-case are more similar to Alvarado than to Chapman. The interviewers in the present case failed to follow General Order 22/02’s directive to promote “sworn personnel possessing skill, knowledge^] and professional experience to-specialty positions[.]” MDPS instead used minimum standards and an unauthorized oral-technical-question exam. MDPS then shredded the interview notes after’ the interview. Without a correlating scale or rubric for grading each of the objective technical questions asked -during the interview, MDPS lacks the ability to provide “a clear and reasonably specific basis for its subjective assessment” of Kirk’s interview. See Alvarado, 492 F.3d at 616 (citations omitted). As a result, Í find that MDPS failed to meet its burden to establish a legitimate, nondiscriminatory reason for refusing to promote Kirk. See McCoy, 492 F.3d at 557.

¶72. As discussed, the record reveals that MDPS failed to follow authorized agency procedures or policies in conducting the promotional process for the vacant lieutenant position. The hearing officer found that General Order 22/02 governed the lieutenant position. However, the record demonstrates that MDPS completely failed to follow General Order 22/02. Regardless of whichever applicant possessed the most skill, knowledge, and experience related to the vacant position, the interviewers decided .that an oral interview exam alone, made up of six objective technical questions, would constitute the final determining factor as to who received the promotion. Also, instead of following General Order 22/02, MDPS applied the minimum standards applicable to a lieutenant position governed by General Order 22/01 to the specialty position at issue. Moreover, the evidence in the record of the shredding of the interview notes, lack of a scoring rubric, lack of approval of the scoring process, and composition of the interview panel reflects that no safeguards existed in this unauthorized subjective grading procedure to avert discrimination. See Rowe, 457 F.2d at 359. Jurisprudence reflects that a promotion system based on subjective criteria can be facially neutral but discriminatorily applied to adversely affect one-group. Page, 726 F.2d at 1046. In the present case, MDPS failed to present evidence during the EAB hearing to show that the interviewers’ chosen scoring method was or ever had been approved by the agency. Not only does the record demonstrate that no agency policy authorized such a promotional process, but also that no safeguards existed within the utilized promotional process to avoid discrimination or to validate the interviewers’ subjective grading of objective technical questions. See Rowe, 457 F.2d at 359.

¶ 73.-.Despite the panel members’ testimony about the utilized promotional process, the record reflects no specific evidence to which MDPS can point on-appeal to meet its burden and demonstrate “how or why the interviewers , arrived at [their] scores See Alvarado, 492 F.3d at 617. The scores for each interview question had no supporting scoring rubric, and following the interview, process, Major Gil-lard shredded both the answers to the exam and the interviewers’ notes. As Major Gillard himself admitted, this action was not authorized by any agency policy,

¶ 74. The record lacks any objective and reasonably specific evidence to validate the interviewers’- initial subjective scoring of each question or*'their decision to then change differing scores to more closely align with each other. Without a scoring scale or rubric for the correct answers, the record lacks evidence as to the correctness, of the answers to the objective questions and, 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 contained no notes or comments, that shed light on Alvarado’s interview performance). Without such evidence as a means to satisfy MDPS’s burden of production, I find insufficient MDPS’s mere assertions that Cunningham was the most qualified candidate for the lieutenant position. As the Alvarado court noted, an employer’s failure to provide sufficient evidence to meet its burden- of production fails to afford the claimant “a full and fair opportunity to.demonstrate pretext.” Id. at 618. Beg. also Burdine, 450 U.S. at 255, 101 S.Ct. 1089 (“[T]he defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiffs rejection.”).

¶75. Upon review, I find the record clearly reflects that MDPS acted arbitrarily and capriciously by failing to follow General Order 22/02 or any authorized agency procedure or policy in this promotional decision. See Ray, 172 So.3d at 187 (¶¶ 15-16). Furthermore, as discussed, MDPS failed to articulate a clear and reasonably specific factual basis for its subjective assessment of Kirk during the promotional process. See Alvarado, 492 F.3d at 616-17. As a result, MDPS failed to articulate a legitimate, nondiscriminatory reason for Kirk’s nonpromotion. See McCoy, 492 F.3d at 557. I therefore conclude that the EAB’s finding regarding Kirk’s sexual-discrimination claim lacked support by substantial evidence. Accordingly, I would reverse the circuit court’s judgment and render a judgment in Kirk’s favor. In so doing, I would find that MDPS should promote Kirk to the position of lieutenant. As a result, I dissent from the majority’s opinion.

      . Major Gillard subsequently was appointed Assistant Commissioner of Public Safety and Director of the MHSP and promoted to the rank of colonel: •

      . General Order No. 22/01 establishes generally applicable, procedures for promotion of sworn personnel within MDPS/MHSP but does not govern appointments to specialized positions that are subject to General Order No. 22/02.

      . At the conclusion of the EAB hearing, the hearing officer specifically asked: "So the only issue before the [EAB] now is the gender discrimination?” Kirk’s counsel confirmed that this was correct.

      . At the hearing before the EAB, counsel for MDPS explained that a written test is not used for a "specialized” position such as the one at issue here because of the significant cost associated with developing such a test.

      . If there is a conflict between the findings or decision of the hearing officer and the find-tags or decision of the en banc EAB, a reviewing court must review and defer to the find-tags and decision of the en banc EAB. See Miss. Dep’t of Transp. v. Rutland, 965 So.2d 696, 702-03 (¶ 11) (Miss. Ct. App. 2007). However, we also defer to findings of the hearing officer that, as in this case, were affirmed by the en banc EAB. See id.

      . In making this argument, Kirk places great emphasis on the fact that she had served as a master sergeant longer than Cunningham. However, the third-rated candidate, a male, had served as a master sergeant longer than either Kirk or Cunningham.

      . See 29 C.F.R. § 1602.Í4 ("Any personnel or - employment record made or kept by an employer (including but not necessarily limited to requests for reasonable accommodation, application forms submitted by applicants and other records having to do with hiring, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship) shall be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later.”).

      . In a footnote, the dissent notes that a jury verdict and judgment were entered in favor of Kirk in federal district court on a claim" that appears to be similar, if not identical, to the claim at issue in this appeal. Post at n.10, MDPS subsequently filed a motion for judgment notwithstanding the verdict or a new trial, which remains pending. These documents are publicly, available. However, there is nothing in the record in this appeal about the federal case, and neither party has raised any issue or made any argument regarding the preclusive effects of the federal case on this case (or vice versa). The mere fact that a federal jury returned a verdict in Kirk’s favor is not inconsistent with our decision in this appeal.' For the reasons explained above, there was sufficient evidence for the fact-finder in this case, the EAB, to find that Kirk did not meet her burden of proving intentional discrimination. Our opinion does not hold that to be the only conclusion that the evidence permits; we hold only that it is a permissible conclusion that is supported by substantial evidence, ’ The fact-finder in the federal case, the jury, apparently reached a different conclusion based on the evidence presented at trial in that case. But even assuming that the federal verdict will be upheld and that it' was based on the exact same evidence presented to the EAB, it is certainly possible for rational fact-finders to draw different conclusions from the same evidence. That is the very reason for having a trial or, as in this case, an . administrative hearing. Indeed, if the evidence permitted only one conclusion, there would have been no need for a jury trial on liability in the federal case.

      . See Ray v. Miss. Dep't of Pub. Safety, 172 So.3d 182, 187 (¶¶ 15-16) (Miss. 2015) (stating that the appellate courts will reverse an agency decision not supported by substantial evidence).

      . See and compare Kirk v. Miss. Dep't of Pub. Safety, No. 3:14-CV-00537-WHB-RHW, 2017 WL 1428488 (S.D. Miss. Feb. 1, 2017) (jury verdict entered in federal court in favor of Kirk).

      . See also Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 257, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (“We have stated consistently that the employee’s prima facie case of discrimination will be rebutted if the employer articulates lawful reasons for the action; that is, to satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been ■ motivated by discriminatory animus.”).

      . Compare Cash Distrib. Co. v. Neely, 947 So.2d 286, 294 (¶ 29) (Miss. 2007) (refusing to follow the position adopted by several federal courts of appeals that an employee must rebut every single nondiscriminatory reason an employer proffers),


author: GRIFFIS, P.J., WESTBROOKS, J,,

text:
    Bobby Lee ALLEN a/k/a Bobby Lee Allen, Jr. a/k/a Bobby Allen a/k/a Bobby Allen, Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00379-COA
    Court of Appeals of Mississippi.
    06/06/2017
    Rehearing Denied October 24, 2017
    Certiorari Denied January 25, 2018

      BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. In this appeal, Bobby Lee Allen asserts that the Madison County Circuit Court erred when it sustained the State’s objections to his peremptory strikes of two potential jurors. He also challenges the sufficiency of evidence to convict him of armed robbery and conspiracy to commit armed robbery. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶-2. On April 30, 2012,- Allen and two other males drove to an apartment complex in Ridgeland, Mississippi. Allen, the driver of the vehicle, waited in the car as the other two men robbed and shot Jose Gurrola Ortiz, When the men returned to the -vehicle, Allen drove away from the scene. Allen was indicted for armed robbery, accessory after the fact to murder, and conspiracy to commit armed robbery, in violation of Mississippi Code Annotated sections 97-3-79, 97-1-5, and 97-1-1 (Rev. 2014).

¶ 3. During the investigation phase, Allen provided multiple statements to the detectives. He. confessed to driving the men to the location, and he admitted.that he heard the gunshot. But Allen claimed to have no prior knowledge of the robbery plot. He told investigators that one of the men offered him gas money in exchange for a ride to a girl’s home. Allen provided specific details about the crimes and admitted that he split the money .with the men. Allen was arrested after he provided his final statement.

¶4. During jury-selection proceedings, the State challenged Allen’s six peremptory strikes against Caucasian males. The State claimed the strikes were racially motivated and improperly based on gender. Allen took issue with two jurors in particular and argued that both of the potential jurors displayed disinterested mannerisms or body language. The circuit judge found that Allen’s explanations were insufficient and neither race- nor gender-neutral.

¶ 5. After a two-day trial, Allen was convicted on all counts. On May 2, 2013, he was sentenced to concurrent sentences of forty years. On appeal, counsel for Allen argues that the circuit court erred when it overruled the peremptory strikes. Allen, in a supplemental pro se brief, argues, that the evidence was insufficient to convict him of Count I, armed robbery, and Count III, conspiracy to commit armed robbery. Allen does not appeal the sufficiency of the evidence as to Count II, accessory after the fact to murder.

ANALYSIS

I. Batson Challenge

¶ 6. Allen argues that the circuit court erred when it overruled his peremptory strikes as race- and gender-biased. He challenges the circuit court’s determination that body language is not a neutral justification. Allen asserts that the Mississippi Supreme Court has recognized that body language and demeanor are in fact race- and gender-neutral reasons to exercise a peremptory strike. Allen further contends that he justified the strikes when he explained that both men appeared disinterested and predisposed to the notion that he was guilty. Finally, Allen concludes that the trial court’s decision was erroneous because the record provides no evidence of inherent discrimination. Thus, he claims he is entitled to a new trial on all counts of conviction.

¶ 7. “The trial judge acts as finder of fact when a Batson issue arises.” Avant v. State, 910 So.2d 695, 698 (¶ 11) (Miss. Ct. App. 2005) (citation omitted). “This Court gives great deference to the trial court’s findings of whether or not a peremptory challenge was race-neutral.” Anthony v. State, 108 So.3d 419, 424 (¶ 18) (Miss. Ct. App. 2012) (reversed on other grounds). “[W]e will not overrule a trial court on a Batson ruling unless the record indicates that the ruling was clearly erroneous or against the overwhelming weight of the evidence.” Id.

¶8. During voir dire, Allen attempted to strike six jurors, and the State objected on the basis that all of the strikes were against Caucasian males. The circuit court reviewed the peremptory challenges and asked Allen to provide race- and gender-neutral reasons for the strikes. Allen offered several reasons, and the State conceded four of the strikes.' For the remaining two potential jurors, the following exchange took place:

Court: So it does appear that all six of the challenges exercised by the Defense wag against- white males. There was one white male that was accepted. However, ... I do think that that shows a pattern in .that all of the six challenges were utilized against white males so that I will ask the Defense to give me a race-neutral reason for the strike as to Juror Number 3.
Defense: Your Honor, I believe it was this particular one that was more or less the mannerism . and just that individual just showed a general disinterest in what was going on, in my opinion.
Court: What says the State?
Prosecutor: Your Honor, we would say that it requires more than that. Under the case law, under body language, you know, under Canon, it’s arms folded; under Manning, it’s arms folded; under Walters, rolled eyes. I’m not seeing anything here under just general mannerism. ,..
Court: What says the Defense?
Defense: Your Honor, I ’would say that ... his mannerisms w[ere] beyond what I would consider to be normal. He did appear to be disinterested as if his mind were already made up. ...
Court: I did not see a single response that he made to any of the questions. ... As I’m sitting here, I , saw nothing that would draw my . attention to -Mr. Keeton. He answered no questions so I find that 'the explanation given by the Defense is insufficient for a race-neutral reason so Mr. Kee-ton will go on the jury as Juror Number 7.
Court: Number 9, Mr. Thomas, what’s your race- and gender-neutral reason for striking Mr. Thomas?
Defense: Again, your Honor, I believe it was body language!!.]
Court: What says the State?
Prosecutor: Your Honor, my notes reflect that Juror 9 did not open his mouth and I do not indicate anything that would show that he had made his mind up or ha[d] a predisposition; and as such, pursuant to the case law, I think that this is [pretextual].
Court: What says the Defense?
Defense: I have nothing in response, Your Honor.
Court: All right. As I’m sitting here watching the venire, there was certainly nothing about Number 9 that caused my attention to be drawn to him. I And that the explanation given is not sufficient and I find that the strike is [pretextual] and so Juror Number 9 will be placed on the jury as Juror Number 8.

¶9. “The United States Supreme Court established a three-part test for a party to make out a prima facie case of purposeful discrimination in jury selection.” Anthony, 108 So.3d at 426 (¶20) (citing Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). “The objecting party must show”:

(a) he is a member of a cognizable racial group;
(b) the non-objecting party exercised peremptory challenges to remove venire members [of a different race from the defendant]; and
(c) these facts and any other relevant circumstances raise an inference that the non-objecting party used that practice to exclude ■ the venire [members] from the petit jury on account of their race.

Id.

¶ 10. “After a prima facie case has been made, the party exercising the challenge has the burden to articulate a race-neutral explanation for excluding the potential juror.” Flowers v. State, 144 So.3d 188, 196-97 (¶29) (Miss. Ct. App. 2014) (citation omitted). “As long as discriminatory intent .is not inherent in the explanation given by the [defendant], ‘the reason offered will be deemed race[-]neutral.’ ” Id. at 197 (¶ 11) (citation omitted). Next, “the trial court must determine whether the objecting party has met its burden to prove that there has been purposeful discrimination in the exercise of the peremptory [strike], i.e., that the reason given was a pretext for discrimination.” Id. (citation and quotation marks omitted).

¶ 11. Here, the record reveals that Allen used his six strikes to dismiss Caucasian males from the venire. After the State’s Batson challenge, the circuit judge asked Allen to provide neutral reasons for each strike. During the process, the State conceded four of the dismissals. Allen, who is African American, claimed that the remaining two potential jurors each exhibited disinterested mannerisms and appeared as though they had already determined his guilt. The State countered that Allen’s explanations were insufficient because he failed to describe specific body language that suggested the men were disinterested. When given the opportunity to. further elaborate, Allen offered no response.

¶ 12. The circuit judge pointed out that neither Juror 3 nor Juror 9 had answered any questions during voir dire. The judge further noted that he had personally kept watch, and he saw nothing that drew his attention to either of the men. The circuit judge ultimately determined that Allen’s strikes were pretextual in nature and placed both of the men on the jury.

¶ 13. At trial, Allen failed to detail specific body language to indicate the jurors appeared disinterested. But now he cites to several supreme court cases to support the contention that body language and demeanor are in fact recognized as race- and gender-neutral reasons for a peremptory strike. Allen claims that “a nonexhaustive list” of supreme court cases have found that demeanor is a neutral justification. However, of the four cases that he relies on, all of the challenges were based on specific behaviors, and the trial courts recognized each explanation as neutral.

¶ 14. For example, Allen erroneously .relies on Lockett v. State, 517 So.2d 1346, 1356-57 (Miss. 1987), which, in its appendix, provides a detailed listing of various reasons that have been accepted as neutral by other state courts. Allen fails to recognize that the supreme court merely cited to these cases to support its determination that the prosecution provided legitimate reasons for striking jurors. As set out in the facts of Lockett, the trial court sustained the prosecution’s strike of a juror who wore a hat into the courtroom because this behavior appeared contemptuous of the proceedings. Id. at 1351-52. Likewise, another potential juror in Lockett rolled her eyes and became unresponsive to the voir dire after she was denied excusal from the jury pool. Id. at 1351. Consequently, the trial court determined that the potential juror’s posture and demeanor appeared hostile and were legitimate concerns for the prosecution. Id.

¶ 15. In the remaining cases cited by Allen, he fails to reference specific language upon which he relies for each case. As such, the cases cited provide little support for his argument that the supreme court recognizes demeanor, generally, as a neutral reason. Allen cites Lynch v. State, 877 So.2d 1254 (Miss. 2004), but this case does not add much support to his .position. In Lynch, each of the peremptory challenges was based on actual responses and the prosecutor’s belief that several of the jurors, appeared anxious to be excused from jury duty. Id. The instant case is distinct because neither Juror 3 nor Juror 9 responded to voir dire, nor was either juror alleged to have been anxious to get off the jury.

¶ 16. Allen als'o relies on Davis v. State, 660 So.2d 1228, 1242 (Miss. 1995), but he' cites this case to return the Court’s attention to the list provided in Lockett. Mere reference to' the word “demeanor” in a supreme court opinion without more of an explanation of the specific demeanor is not enough to sustain a peremptory strike as race-neutral. Further, of the prosecution’s nine peremptory strikes, in Davis, none were predicated on body language alone. Id. at 1240-42. The facts in Davis are distinct from the instant' case. The prosecution provided éxtensive justification for each of its strikes, and the trial court sustained each reason. Id. We would apply the same analysis provided above for Davis to Allen’s use of Hardison v. State, 94 So.3d 1092 (Miss. 2012), which he also relies on to support his argument that demeanor alone is a sufficient race-neutral justification..

¶ 17. Finally, in reliance on Randall v. State, 716 So.2d 584, 588 (¶ 18) (Miss. 1998), Allen asserts that “any reason which does not facially violate the Constitution is sufficient.” Further, he adds that “a strike does not have to be persuasive or even plausible.” Id, Allen further contends that the record is void of any inherent discriminatory intent toward Jurors 3 and 9. Id,

¶ 18. Here, Allen misinterprets the court’s intent when he relies solely on this passage from the opinion. In this portion of Randall, the supreme court simply laid out the steps to be taken by a trial court when analyzing a Batson challenge of a peremptory strike. In fact, this Court has held that “a facially race-neutral explanation for a peremptory challenge should never be sufficient, standing alone¡ to meet a Batson objection.” Dubose v. State, 22 So.3d 340, 347-48 (¶17) (Miss. Ct. App. 2009). Rather, “[a] Batson [challenge] requires more.” Id. Under Batson, “the trial judge [must] determine whether the facially race-neutral reason is in fact a pretext for purposeful discrimination: a ‘smokescreen,’ if you will.” Id. When challenged, Allen provided no explanations to disprove, the State’s argument that he sought to rid the jury of Caucasian males. Unlike the previously discussed cases, in the instant case, neither of the jurors spoke nor exhibited specific mannerisms that raised concern,

¶ 19. While the supreme court has recognized that “demeanor is a legitimate reason ... to exercise a peremptory challenge,” here, the challenging party failed to articulate specific mannerisms or de-meanors for the peremptory strikes. Locfc-ett, 517 So.2d at 1352. The circuit judge made specific findings based on his own observations as well as the assertions of each party. Allen failed to elaborate on the mannerisms or body language that caused him concern. Moreover, the circuit judge personally noted that neither of the jurors drew his attention. Without more of an explanation from Allen, the circuit judge determined there was in fact a pattern of strikes against Caucasian males only. •

¶ 20. This Court gives great deference to, a trial court’s finding of whether or not a peremptory challenge was race-neutral. Here, we find that the circuit court did not err when it found that Allen’s'explanations were neither race- nor gender-neutral. The evidence in the record supports the circuit judge’s finding that the strikes were discriminatory and pretextual. The circuit court’s ruling was not clearly erroneous. This issue is without merit.

II. Sufficiency of the Evidence

¶ 21. Allen contends there was insufficient evidence to convict him of armed robbery and conspiracy to commit armed robbery. He argues that the State failed to prove each element of the crimes. He .contends there was plain error because the evidence did not show that he conspired to commit the unlawful act of armed robbery. Allen argues that the State failed to prove that' an agreement existed between him and the other two men involved in the armed robbery.

¶22, “On review of the sufficiency of-the evidence, ‘the critical inquiry is whether the evidence shows [ ]beyond a reasonable doubt that [the] accused com-, mitted the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it }s insufficient to support a conviction.’ ” Dorsey v. State, 986 So.2d 1080, 1085 (¶ 15) (Miss. Ct. App. 2008) (citing Bush v. State, 895 So.2d 836, 843 (¶16) (Miss. 2005)). The question is not “whether we believe the evidence showed guilt beyond a reasonable doubt.” Id. Rather, our inquiry is based on consideration of “the evidence in the light most favorable to the verdict.” Id. We must ask ourselves if “a rational trier of fact could have found each essential element of the crime beyond a reasonable doubt.” Id. (citation omitted). If “the facts and inferences ... point in favor of the defendant!],] on any element of the offense[,] with sufficient force that no reasonable juror could have found guilt beyond a reasonable doubt, then we must reverse and render.” Id. (citation omitted).

¶ 23. To obtain a conviction for conspiracy to commit armed robbery, the State was required to prove that Allen along with “two (2) or more persons ... conspire[d] ... to commit [the] crime [of armed robbery].” Miss. Code Ann. § 97-1-1. To prove the underlying crime of armed robbery, the. State was also required, to prove, beyond a reasonable doubt, that Allen “feloniously [took] or attempted] to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.” Miss. Code Ann. § 97-3-79.

¶24. In his supplemental pro se brief, Allen claims that he had no deliberate intent to commit any crime. He asserts that he had no prior knowledge of the other men’s plan to commit a robbery. He contends that his agreement to provide transportation in exchange for gas money falls short of conspiring to engage in an armed robbery. Further, he argues that the conviction was received in error because the State, failed to prove that he agreed 'to accomplish some unlawful purpose. Allen offers this lack of awareness as proof that he never entered into an agreement to commit the armed robbery.

¶25. Allen claims that his. ignorance of the robbery plot is undisputed. However, this claim is contrary to the evidence presented at trial. Weighing the evidence in the light most favorable to the verdict, Allen’s own confessions, accompanied by the investigator’s corroborating testimony, established that Allen conspired-to commit armed robbery. Therefore,- Allen, as a co-conspirator, was also guilty of armed robbery.

¶26. Allen’s recorded statements were played for the jury, and . several of the detectives testified on behalf of the State. Allen told detectives that he.drove around until the gunman instructed him to stop the vehicle and back into a parking spot. He also admitted that he became aware of the plan to commit armed robbery before the. act took place.

¶ 27. -Allen placed himself at the scene, and he was present when the victim was selected as the target for the armed robbery. He provided a precise description of the victim’s vehicle and also knew that the driver was of Mexican descent. Allen told investigators that he -sat in the car, and played on his cell phone while the men executed the robbery. He admitted that he heard the gunshot, and he waited on the men to return to the car before he drove away. Allen also confessed that he and the other men split the money that was taken from the victim. “We do not find that the evidence so. heavily preponderates against the verdict that to allow the verdict to stand would permit an unconscionable injustice.” Dorsey, 986 So.2d at 1087 (¶ 21). We affirm.

¶ 28. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ARMED ROBBERY, AND SENTENCE OF FORTY YEARS; COUNT II, ACCESSORY AFTER THE FACT TO MURDER, AND SENTENCE OF TWENTY YEARS; AND COUNT III, CONSPIRACY TO COMMIT ARMED ROBBERY, AND SENTENCE OF FIVE YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

LEE, C.J., BARNES, ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P. J.

WESTBROOKS, J,,

DISSENTING:

¶29. I find that the trial court erred when it overruled Allen’s peremptory strikes of two potential jurors. Because I believe the proffered reasons were race- and gender-neutral, I respectfully dissent.

¶30. Allen’s counsel used peremptory strikes on six white males. The prosecutor objected and requested that Allen’s counsel be required to give race- and gender-neutral reasons for the strikes. The court found that Allen’s counsel provided race- and gender-neutral reasons for four of the peremptory strikes. For the remaining two jurors, the following exchange took place:

THE COURT: So it does appear that all' six of the challenges exercised by the Defense was against white males. There was one white male that was accepted. However, .... I do think that shows a pattern in that all of the six challenges were utilized against white males so that I will ask the Defense to give me a neutral reason for the strike as to Juror Number 3.
THE COURT: All right. What says the Defense to the race gender reason [sic] for exercising Dl?
MR. DIXON (ALLEN’S COUNSEL): Your Honor, I believe it was this particular one that was more or less the mannerism and just that individual just showed a general disinterest in what was going on, in my opinion.
THE COURT: Number 9, Mr. Thomas, what’s your race and gender neutral reason for striking Mr. Thomas?
MR. DIXON: Again, your Honor, I believe it was the body language[.]

¶ 31. The trial court found that Alen’s answers, were pretextual in nature. I disagree. “Our supreme court has set out a non-exhaustive list of valid race-neutral reasons for the exercise of peremptory challenges!.]” Perry v. State, 949 So.2d 764, 767-68 (¶ 7) (Miss. Ct. App. 2006). This list “includes living in a ‘high crime’ area, body language, demeanor, distrust of a juror by the party exercising the strike, inconsistency between oral responses and juror’s card, criminal history of juror or relative, social work and other types of employment, and religious beliefs.” Id; see also Walker v. State, 815 So.2d 1209, 1215 (¶ 12) (Miss. 2002) (citing Lockett v. State, 517 So.2d 1346, 1356-57 (Miss. 1987)).

¶ 32. Aso, a white-male juror had been accepted in the jury box before the prosecution made a challenge to Alen’s peremptory strikes. “When considering a Batson objection, the trial court should consider the racial composition of the entire venire panel, the jurors considered for service, and the jurors and alternates who actually served.” Camper v. State, 24 So.3d 1072, 1076 (¶ 17) (Miss. Ct. App. 2010). In Camper, a juror was excluded for looking “disinterested” and had her hands crossed dur-mg the void dire procedure. Id. at (¶ 15). “The trial court made its factual finding concerning [the juror] by holding that bad body language was an acceptable race/gender neutral reason.” Id. This Court further found that “it was not error for the [trial] judge to accept the ... reason, because body language has been accepted by the Mississippi Supreme Court as a race-neutral reason for the exercise of a peremptory strike.” Id.

¶ 33. Allen’s counsel argued that the witnesses looked disinterested and exhibited body language and mannerisms that exhibited that their minds had already been made up regarding the case. Accordingly, I find these reasons to be race- and gender-neutral.

¶ 34. The majority asserts that specific body language needs to be specified in giving a race-and gender-neutral reason for striking a potential juror, and cites the appendix in Lockett, 517 So.2d at 1356-57, which provides a listing of various reasons that have been accepted as neutral by other state courts. Maj. Op. at (¶¶ 13-14). The majority holds that Allen erroneously relies on Lockett; however, “demeanor” and “lack of eye contact and attentiveness” are listed as neutral reasons. Lockett, 517 So.2d at 1356. Therefore, I would find that Allen’s reasons for using the peremptory strikes on Jurors 3 and 9 were race- and gender-neutral.

¶ 35. I respectfully dissent, and I would reverse and remand this case for a new trial.

IRVING, P.J., JOINS THIS OPINION.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), is commonly referred to as Batson or as the concept of a Batson challenge. The holding in this United States Supreme Court case sets out the test for determining if a peremptory strike is racially discriminatory. In Batson, the court found that the Equal Protection Clause forbids a party from challenging potential jurors solely on account of race or the assumption that a particular race of people, as a whole, will be unable to impartially consider the State’s case against a defendant.