Britt v. Mississippi Farm Bureau Casualty Insurance Company et al

Filing 110

ORDER finding as moot 36 Motion to Dismiss for Failure to State a Claim; finding as moot 41 Motion to Dismiss for Lack of Jurisdiction; finding as moot 44 Motion to Dismiss; finding as moot 44 Motion to Dismiss for Failure to State a Clai m; finding as moot 44 Motion to Dismiss for Lack of Jurisdiction; denying 88 Motion to Dismiss; denying 90 Motion to Dismiss for Failure to State a Claim; denying 92 Motion to Dismiss; finding as moot 100 Motion for Extension of Time t o File Response/Reply ; finding as moot 104 Motion for Extension of Time to File Response/Reply ; finding as moot 105 Motion for Extension of Time to File Response/Reply ; finding as moot 26 Motion to Dismiss for Failure to State a Claim; fi nding as moot 28 Motion to Dismiss for Failure to State a Claim; finding as moot 28 Motion to Dismiss for Lack of Jurisdiction; finding as moot 33 Motion to Dismiss for Failure to State a Claim. Signed by Senior Judge Neal B. Biggers on 3/26/2019. (llw)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
MEGAN BRITT

PLAINTIFF

V.

CIVIL ACTION NO. 1:17CV219-NBB-DAS

MISSISSIPPI FARM BUREAU CASUALTY
INSURANCE COMPANY; SOUTHERN FARM
BUREAU LIFE INSURANCE COMPANY;
GEORGE “BUBBA” COLE; BARRY PATTON;
BRENDA WHEAT; AND TINA STAPP

DEFENDANTS

ORDER DENYING MOTIONS TO DISMISS
This cause comes before the court upon the motions to dismiss filed by defendants
Mississippi Farm Bureau Casualty Insurance Company, Southern Farm Bureau Life Insurance
Company, and George “Bubba” Cole. Upon due consideration of the motions, responses, and
applicable authority, the court is ready to rule.
The plaintiff alleges that she was an employee of Defendants Mississippi Farm Bureau
Casualty Insurance Company (“MFB”) and Southern Farm Bureau Life Insurance Company
(“SFB Life”) (collectively “Farm Bureau Defendants”) working in the Columbus, Mississippi
Farm Bureau office. She alleges that Defendants George “Bubba” Cole and Barry Patton, also
employees of MFB and SFB Life, sexually harassed her by making inappropriate sexual
comments to her, treated her differently than her male co-workers, denied her employment
benefits, retaliated against her for reporting the defendants’ conduct, covered up their conduct,
and ultimately fired her and replaced her with a male employee.
The plaintiff filed the present action on September 28, 2017, and amended her complaint
shortly thereafter. The defendants subsequently filed motions to dismiss, but the court later
granted the plaintiff leave to amend her complaint a second time, which she did on July 22, 2018.

The Second Amended Complaint asserts a number of claims under Title VII, an alternative claim
for the breach of the duty of good faith and fair dealing in the event the court finds the plaintiff to
be an independent contractor and therefore not subject to Title VII protection, state law claims
against the individual defendants Cole, Patton, Brenda Wheat, and Tina Stapp1 for intentional
interference with contract and business relationships and intentional infliction of emotional
distress, a state law claim against MFB and SFB Life for wrongful termination and retaliation
under McArn v. Allied Bruce-Terminix Co., Inc., 626 So. 2d 603 (Miss. 1993), and finally a state
law defamation claim against Defendant Cole individually for allegedly telling a now-dismissed
defendant, Farm Bureau agent Roy Weathers,2 that the plaintiff threatened Cole with a gun, was
emotionally unstable, and was sleeping with Farm Bureau clients. Defendants MFB, SFB Life,
and Cole subsequently filed motions to dismiss the Second Amended Complaint. As there is
substantial overlap of the issues between the two motions of the Farm Bureau Defendants, the
court will address MFB and SFB Life’s motions jointly and then turn its attention to Cole’s
motion.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“Motions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely granted.”

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Wheat and Stapp were office assistants in the Columbus Farm Bureau office.
The plaintiff filed a stipulation of dismissal without prejudice of her claims against Weathers on April 17, 2018,
pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii).
2

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Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009). A court must accept all
well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Id.
In ruling on a motion to dismiss, the court generally may not look beyond the pleadings.
Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994). Matters of public record and matters of
which the court may take judicial notice as well as documents attached to the complaint are
exceptions. Id. at 1343 n.6; Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir.
1996). Further, “[d]ocuments that a defendant attaches to a motion to dismiss are considered
part of the pleadings if they are referred to in the plaintiff’s complaint and are central to [the]
claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2001).
The defendants assert that the plaintiff was an independent contractor and that she has
made no plausible allegations that MFB and SFB Life were her employers. “[G]enerally only
employers may be liable under Title VII.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d
337, 343 (5th Cir. 2007). The plaintiff specifically alleges, however, that MFB and SFB Life
intentionally misclassified her as an independent contractor to avoid liability.
Mississippi courts consider a number of factors to determine if a relationship is that of
employer/employee or independent contractor, but “the right to control and actual control have
always been primary factors.” McKee v. Brimmer, 39 F.3d 94, 96 (5th Cir. 1994). “At last, and
in any given case, it gets back to the original proposition whether in fact the contractor was
actually independent.” Id. (quoting Richardson v. APAC—Mississippi, Inc., 631 So. 2d 143, 148
(Miss. 1994)). “Where the facts are undisputed, determining the type of relationship is a legal
question.” McKee, 39 F.3d at 96. Factors that may be considered are:
Whether the principal master has the power to terminate the contract at will;
whether he has the power to fix the price in payment for the work, or vitally
controls the manner and time of payment; whether he furnishes the means and
appliances for the work; whether he has control of the premises; whether he
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furnishes the materials upon which the work is done and receives the output
thereof, the contractor dealing with no other person in respect to the output;
whether he has the right to prescribe and furnish the details of the kind and
character of work to be done; whether he has the right to supervise and inspect the
work during the course of employment; whether he has the right to direct the
details of the manner in which the work is to be done; whether he has the right to
employ and discharge the subemployees and to fix their compensation; and
whether he is obliged to pay the wages of said employees.
McKee, 39 F.3d at 97.
In support of her assertion that she was an employee of the Farm Bureau Defendants, the
plaintiff alleges in her Second Amended Complaint:
The Plaintiff is an employee of Farm Bureau, since Farm Bureau exercised
control over her work activities. She was forced to work full time and overtime in
the Farm Bureau office. She was closely supervised and monitored by Cole and
Patton, who are both Farm Bureau employees. Cole provided her with potential
customers to contact. Cole controlled the Plaintiff’s book of business. She was
required to pay into an agent’s fund for purposes of marketing Farm Bureau
products. She was required to attend mandatory meetings and conferences. She
had to undergo quarterly reviews by her manager where she was evaluated on her
sales performance, punctuality, appearance, community involvement, product
knowledge, and attitude. She was given a Farm Bureau email address. Farm
Bureau also provided the Plaintiff with office space, furniture, office supplies,
internet, clerical assistance, computer and an IT department. She was also a
captive agent, meaning she could only sell Farm Bureau products and work
exclusively for Farm Bureau. Farm Bureau also prevented the Plaintiff from
assigning any of her rights under her contract to third parties. Farm Bureau also
controlled the amount of commission compensation that the Plaintiff would earn
and when and how payments would be made.
The defendants direct the court to the plaintiff’s contracts with MFB and SFB
Life, which they assert establish the plaintiff’s status as an independent contractor. The
defendants set forth excerpts from the contracts showing that the plaintiff agreed to
assume responsibility for withholding her own taxes, that she would not participate in
benefits or programs only applicable to Farm Bureau employees, that she would not be
subject to any employment rules, and that she had the right to control her daily activities
and means by which she conducted her sale and servicing of insurance policies.
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While the defendants contest the plaintiff’s general assertion that she was an
employee and direct the court to the applicable contract language, they do not contest the
relevant underlying factual assertions from the Second Amended Complaint quoted
above which the plaintiff uses to establish that Farm Bureau misclassified her as an
independent contractor. The plaintiff’s specific factual allegations, which are not
conclusory as the defendants suggest, paint an entirely different picture of control and
independence from that outlined in the contracts. The plaintiff addressed almost every
factor suggested by McKee and then some, showing that Farm Bureau asserted
considerable control over her. The court accepts these uncontested underlying factual
assertions as true, as it must at this stage of the litigation, and finds that the plaintiff has
sufficiently established her status as an employee, at least for the purposes of the present
motions.
The defendants also argue that the plaintiff did not properly allege that SFB Life
was her employer, that she has incorrectly and impermissibly lumped SFB Life with
MFB, and that she failed to name SFB Life in her EEOC charge. The plaintiff responds
that this argument is mere semantics, and the court agrees. The Second Amended
Complaint makes clear that the plaintiff is accusing both MFB and SFB Life of the same
wrongful conduct. She simply uses the term “Farm Bureau” to refer to both entities in
the collective. It is true, however, that the plaintiff did not specifically name SFB Life as
her employer in her EEOC charge.
Generally “a party not named in an EEOC charge may not be sued under Title
VII.” E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014). The court, however,
should “liberally construe Title VII’s naming requirement so as to not frustrate claimants

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with needless procedural roadblocks.” Id. If therefore the party “was within the
foreseeable scope of the EEOC investigation, an unnamed party could be added as a
defendant.” Henry v. Parkwest Staffing Servs., Inc., 2012 WL 950213, at *4 (S.D. Tex.
Mar. 20, 2012) (citing Terrell v. U.S. Pipe & Foundry Co., 644 F.2d 1112, 1122 (5th Cir.
1981)).
“The general rule is that a party must be properly named in an EEOC charge to be
sued under Title VII unless there is a clear identity of interest between it and the party
named in the charge.” Way v. Mueller Brass Co., 840 F.2d 2d 303, 307 (5th Cir. 1988).
The court uses two tests to determine whether this identity of interest exists. The first
looks to whether the “unnamed party has been provided with adequate notice of the
charge under circumstances which afford [it] an opportunity to participate in conciliation
proceedings aimed at voluntary compliance.” Steward v. Aries Freight Sys., L.P. 2007
WL 3001660, at *4 (S.D. Tex. Oct. 12, 2007). The second test examines the
“relationship between the named and unnamed parties at the time the charge is filed and
conciliation efforts occur.” Id. In examining this relationship, the court considers
whether:
(1) the role of the unnamed party could through reasonable effort by the
complainant be ascertained at the time of the filing of the EEOC complaint;
(2) under the circumstances, the interests of a named party are so similar as the
unnamed party’s that for the purpose of obtaining voluntary conciliation and
compliance it would be unnecessary to include the unnamed party in
the EEOC proceedings; (3) its absence from the EEOC proceedings resulted in
actual prejudice to the interests of the unnamed party; and (4) the
unnamed party has in some way represented to the complainant that its
relationship with the complainant is to be through the named party.
Jones v. Tubal—Cain Hydraulic Solutions, Inc., 2017 WL 1177995, at *3 (S.D. Tex.
Mar. 30, 2017). Under either test, “[t]he ‘identity of interest’ exception acknowledges

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the reality that laymen, unassisted by trained lawyers, initiate the process of filing a
charge with the EEOC, and accordingly [the exception] prevents frustration of the
remedial goals of Title VII by not requiring procedural exactness in stating the charge.”
Id.
A review of the Second Amended Complaint reveals the following factual
assertions regarding the identity of interest between MFB and SFB Life:
Defendants Mississippi Farm Bureau Casualty Insurance Company and Southern
Farm Bureau Life Insurance Company are an integrated enterprise and joint
employer of the Plaintiff. Specifically, both Mississippi Farm Bureau Casualty
Insurance Company and Southern Farm Bureau Life Insurance Company had the
power to hire and fire the Plaintiff, to supervise the Plaintiff, and to set the
Plaintiff’s work schedule. Both Mississippi Farm Bureau Casualty Insurance
Company and Southern Farm Bureau Life Insurance Company paid the Plaintiff’s
salary, withheld appropriate taxes, provided benefits, and set the terms and
conditions of the Plaintiff’s employment. In conjunction with each other,
Mississippi Farm Bureau Casualty Insurance Company and Southern Farm
Bureau Life Insurance Company had the right to control the Plaintiff’s conduct.
Both Mississippi Farm Bureau Casualty Insurance Company and Southern Farm
Bureau Life Insurance Company have interrelated operations, centralized control
of labor relations, common management, and common ownership and financial
control.
The court finds that if these factual assertions are proven true, they will establish a clear
identity of interest between MFB and SFB Life such that they are an integrated enterprise
and the plaintiff’s joint former employer. This fact is further established by SFB Life’s
representation to the plaintiff, in a letter from its executive Henry Hamill terminating the
plaintiff’s contracts, that SFB Life and MFB are a joint enterprise. This letter is written
on MFB letterhead but refers to MFB and SFB Life jointly, and Hamill purports to speak
on behalf of both entities collectively as “Vice President, Sales.”
Given the facts alleged, it is also probable that SFB Life had actual notice of the
plaintiff’s EEOC charge so as to allow it to engage in conciliation proceedings had it so

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desired. Further, if the allegations are proven true, the facts will establish that SFB Life
was within the foreseeable scope of the EEOC investigation. The court therefore finds
that the plaintiff has alleged sufficient facts to establish an identity of interest between
MFB and SFB Life, and her failure to name SFB Life in her EEOC charge should be
excused. In reaching this conclusion, the court notes that the plaintiff was a pro se
claimant at the time she filed her EEOC charge and is therefore held to a more liberal
standard in regard to that document than a litigant represented by counsel3 and that SFB
Life has failed to allege in its motion to dismiss or accompanying memorandum brief that
it did not, in fact, have actual notice of the plaintiff’s EEOC charge.
The defendants also argue that the plaintiff’s EEOC charge as to her hostile work
environment claim was untimely.4 Regarding her gender discrimination and retaliation
claims, the plaintiff is required to file her EEOC charge within 180 days of her
termination. 42 U.S.C. § 2000e-5(e)(1). The plaintiff met this deadline. Her claim for
hostile work environment is treated differently. Recognizing that by “[t]heir very
nature,” hostile work environment claims “involve[ ] repeated conduct,” the Supreme
Court has held that “[i]t does not matter, for purposes of the statute, that some of the
component acts of the hostile work environment fall outside the statutory time period.
Provided that an act contributing to the claim occurs within the filing period, the entire
time period of the hostile environment may be considered by a court for the purposes of
determining liability.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115-117

3

See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed.”).
The defendants also argue that the plaintiff’s disparity in pay claim is untimely and was not properly alleged in her
EEOC charge. The plaintiff acknowledges, however, that she does not bring a separate claim for disparity in pay
under the Equal Pay Act but that the alleged disparity in pay is simply evidence of gender discrimination and will go
to show that she was treated differently than her male colleagues.

4

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(2002). The plaintiff here alleges that actions contributing to her hostile work
environment claim occurred in February 2017, within 180 days of the plaintiff’s EEOC
charges filed in April and May 2017. The charge for the plaintiff’s hostile work
environment claim was timely filed, and the claim will survive the defendants’ motions to
dismiss.
Next, the defendants contend that the plaintiff has failed to state a claim for
wrongful termination and retaliation under McArn v. Allied Bruce-Terminix Co., Inc., 626
So. 2d 603 (Miss. 1993). The plaintiff has alleged that Defendant Cole, an employee of
the Farm Bureau Defendants, broke the law, specifically Miss. Code Ann. § 97-19-39,
when he allegedly defrauded customers in an effort to earn commission payments
through the sale of insurance products. The plaintiff has alleged that she refused to
participate in these activities, that she reported Defendant Cole for his actions to
Defendant Patton, and that she was terminated as a result. For purposes of 12(b)(6)
review, the plaintiff has adequately stated a claim under McArn.
The Farm Bureau Defendants’ remaining arguments merely assert that the
plaintiff has failed to allege facts sufficient to state a claim for each of the claims in her
Second Amended Complaint. These arguments are simply inaccurate, and the court finds
no merit to them and no reason to engage in further analysis of them. Accepting, as it
must, all factual assertions as true and drawing all reasonable inferences in favor of the
plaintiff, the court finds that the Second Amended Complaint alleges, for each of the
plaintiff’s claims, facts sufficient to state a claim to relief that is plausible on its face.
The court now turns to Defendant Cole’s motion to dismiss. Cole argues only
that the court should dismiss without prejudice the plaintiff’s claims against him for

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intentional infliction of emotional distress, intentional interference with contract and
business relationships, and defamation, as they are based solely on Mississippi law and
substantially predominate over the federal law claims of the plaintiff against MFB and
SFB Life. In other words, Cole asks the court to decline its exercise of supplemental
jurisdiction granted by 28 U.S.C. § 1367(a).
The court disagrees with Cole’s characterization of the state law claims as
“substantially predominating” over the federal claims and finds that the state law claims
are “so related to claims in the action . . . that they form part of the same case or
controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
The court also finds that the interests of justice and judicial economy will be best served
by the court’s retention of supplemental jurisdiction at this time.
For the foregoing reasons, the court finds that the motions to dismiss filed by
defendants Mississippi Farm Bureau Casualty Insurance Company, Southern Farm
Bureau Life Insurance Company, and George “Bubba” Cole should be, and the same are
hereby, DENIED. The dispositive motions filed prior to the filing of the Second
Amended Complaint will be denied as moot as well as any now moot motions for
extensions of time to file responsive pleadings.
SO ORDERED AND ADJUDGED this 26th day of March, 2019.

/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE

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