Harris v. Tunica County, Mississippi
Filing
75
OPINION and ORDER denying 53 Motion for Summary Judgment. Signed by District Judge Michael P. Mills on 8/25/2016. (lpm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
RICO F. HARRIS
PLAINTIFF
v.
Civil Action No.: 3:14-cv-00218-MPM-SAA
TUNICA COUNTY, MISSISSIPPI
and CALVIN K. (“K.C.”) HAMP, SR.,
In his Individual Capacity
DEFENDANTS
MEMORANDUM OPINION AND ORDER DENYING
MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court for consideration on defendant Tunica County,
Mississippi’s (“Tunica County”) Motion for Summary Judgment (the “Motion”) [52][53].
Plaintiff Rico F. Harris (“Harris”) filed a Response in Opposition (the “Response”) [61][62], to
which Tunica County filed a Rebuttal to Plaintiff’s Response (the “Rebuttal”) [67]. The Court
has considered the Motion, Response, and Rebuttal, as well as relevant case law and evidence,
and is now prepared to rule.
Harris commenced this action by filing his Complaint [1] against Tunica County based
upon his termination from the Tunica County Sheriff’s Department (“TCSD”). In its present
posture, this case consists of the following claims by Harris against Tunica County: (1) violation
of free speech rights protected by the First Amendment and (2) gender discrimination in
violation of Title VII. Harris has also asserted claims against Sheriff Calvin Hamp, which will
be considered in a separate order. Having considered the arguments made by the parties and the
authorities cited therein, the Court finds that genuine issues of material fact remain as to both
claims, so as to preclude summary judgment.
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I.
BACKGROUND
In 2005, the plaintiff, Rico F. Harris, was hired as a patrolman by TCSD. In August
2013, after a series of promotions, Harris became Captain of Investigations, the position he held
for the remainder of his employment with TCSD.
In 2011, Bernadette Logan (“Detective Logan”) was hired by TCSD as a patrol officer
and was thereafter assigned to the detective division. Harris contends Sheriff Hamp developed a
practice of providing Detective Logan and other female employees preferential treatment.
On May 11, 2013, TCSD was alerted to suspicious activity at an apartment occupied by
Rosemary Jones Brown. Harris and Detective Logan were both dispatched to the apartment
complex to investigate. The investigation quickly revealed that Brown was deceased and had
apparently been murdered. Physical evidence at the scene connected Gloria Logan, Detective
Logan’s mother, to the crime. Thus, Gloria Logan became the primary suspect in the case.
Upon becoming aware of her mother’s potential involvement, Detective Logan recused herself
from the case.
Thereafter, Harris voiced his concern to Sheriff Hamp, Commander Cedric Davis, and
Chief Deputy Randy Stewart that TCSD should not investigate the murder because there was a
clear conflict of interest, recommending that Sheriff Hamp refer the case to the Mississippi
Bureau of Investigation (“MBI”). Harris contends Sheriff Hamp informed him that TCSD would
not recuse itself because he did not believe a conflict of interest existed. In contrast, in his
deposition, Sheriff Hamp testified that he contacted MBI but was informed that MBI did not
have anyone available to investigate the case. However, Peter Clinton, the Lieutenant in charge
of the MBI Batesville District during May 2013, stated in an affidavit that MBI was never
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contacted concerning the case. Nevertheless, TCSD did not recuse, and Harris served as the lead
investigator on the case.
On the day of the murder, Harris called the District Attorney’s office and spoke with
Assistant District Attorney Rosharwin Williams to explain the situation. The District Attorney’s
office later recused itself from the case on April 11, 2014, citing a conflict of interest due to its
close working relationship with TCSD. However, Harris remained in contact with Williams
even after the District Attorney’s office recused itself, voicing his frustration that TCSD would
not refer the case to MBI.
Although Harris continued to handle the case, both he and Lieutenant William Mullen
(“Mullen”), who assisted with the investigation, believed Sheriff Hamp improperly hindered the
investigation. Harris claims that Sheriff Hamp prevented him from conducting necessary
interviews and did not allow him to visit the crime scene before it was cleaned. Harris and
Mullen both testified that they reported their concerns about Sheriff Hamp’s conduct to
Commander Davis on multiple occasions, but no responsive action was taken. Commander
Davis, however, denied that Harris or Mullen reported any concerns to him.
On or about April 14, 2014, Harris communicated with a member of the Attorney
General’s office, which had taken over the case after the District Attorney’s office recused. On
April 15, 2014, Harris personally met with a representative from the Attorney General’s office to
provide a briefing of the case and a copy of his case report. Later that day, Harris contacted
Tunica County Justice Court Judge Louise Linzy, who was scheduled to preside over Gloria
Logan’s initial appearance in the murder case, to express his concerns about the manner in which
the case had been handled. Judge Linzy thereafter contacted TCSD to report Harris’s call and
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was instructed to complete a written report. In her deposition, Judge Linzy testified that she did
not call TCSD to file a complaint but simply desired to obtain more details about the situation.
Also on April 15, 2014, Harris received notice from Commander Davis that he was being
transferred to the patrol division due to his failure to timely prepare the Brown murder case for
presentation to the grand jury in February. Harris contends his failure to complete the case
preparation was due to Sheriff Hamp’s interference with the investigation. On the following day,
April 16, 2014, Harris was placed on administrative leave pending an internal affairs
investigation pertaining to his conversation with Judge Linzy. On April 23, 2014, while on
administrative leave, Harris failed to honor a subpoena to appear in court regarding another
matter. Thereafter, on April 25, 2014, Harris received an Employment Dismissal, terminating
his employment with TCSD. The Employment Dismissal provided that Harris was terminated
for failure to timely prepare the murder case for presentation to the grand jury, inappropriate
contact with Judge Linzy, and failure to appear in court to honor a subpoena. Upon Harris’s
termination, Persundra Jones, a female, was promoted to Harris’s position. Shortly thereafter,
Harris filed this suit.
II.
CONCLUSIONS OF LAW
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a). A genuine dispute as to a material fact exists “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Doubts are to be resolved in favor of the
nonmoving party, and any reasonable inferences are to be drawn in favor of that party.” Evans v.
City of Houston, 246 F.3d 344, 348 (5th Cir. 2001). If the moving party meets its initial burden
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of showing there is no genuine dispute as to any material fact, the nonmoving party must “come
forward with specific facts showing a genuine factual issue for trial.” Harris ex rel. Harris v.
Pontotoc Cnty. Sch. Dist., 635 F.3d 685, 690 (5th Cir. 2011). “[A] party cannot defeat summary
judgment with conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of
evidence.’ ” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting
Little v. Liquid Air Corp., 37F.3d 1069, 1075 (5th Cir. 1994)).
Applying this standard, the Court finds that genuine issues of material fact remain in
dispute, requiring further development of evidence, and that summary judgment should be
denied as to both claims.
Tunica County failed to meet its burden regarding Harris’s First Amendment claim.
Public employees are not stripped of their First Amendment right to freedom of expression by
virtue of their employment. Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d
708 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).
Rather, “the First Amendment protects a public employee’s right, in certain circumstances, to
speak as a citizen on matters of public concern.” Davis v. McKinney, 5118 F.3d 304, 311 (5th
Cir. 2008). In order to prevail on a First Amendment retaliation claim, a public employee must
establish that: (1) she suffered an adverse employment action; (2) her speech involved a matter
of public concern; (3) her interest in commenting on matters of public concern outweighs the
employer’s interest in promoting efficiency; and (4) her speech motivated the employer’s
adverse action. Modica v. Taylor, 465 F.3d 174, 179-80 (5th Cir. 2006). “[S]ummary judgment
should be used most sparingly in . . . First Amendment cases . . . involving delicate constitutional
rights, complex fact situations, disputed testimony, and questionable credibilities.” Haverda v.
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Hays County, 723 F.3d 586, 592 (5th Cir. 2013) (citing Beattie v. Madison Cty. Sch. Dist., 254
F.3d 595, 600 (5th Cir. 2001)).
Turning to Harris’s claim, Tunica County does not dispute that Harris suffered an adverse
employment action, as he was terminated. Tunica County does contend, however, that Harris
cannot satisfy the second element of his claim, arguing Harris’s statements concerned his
employment duties as an investigator and were not a matter of public concern. Regarding this
element, “[the] court must first decide whether the plaintiff was speaking as a citizen
disassociated with his public duties, or whether the plaintiff was speaking in furtherance of the
duties of his or her public employment. Only speech made in one’s capacity as a citizen is
entitled to First Amendment protection.” Howell v. Town of Ball, — F.3d —, 2016 WL
3595722, at *3 (5th Cir. 2016). The main inquiry “is whether the speech at issue is itself
ordinarily within the scope of an employee’s duties, not whether it merely concerns those
duties.” Culbertson v. Lykos, 790 F.3d 608, 618 (5th Cir. 2015) (citing Lane v. Franks, — U.S.
—, 134 S.Ct. 2369, 2379, 189 L.Ed.2d 312 (2014)). Further, the inquiry is a “practical one,”
considering “solely [] whether the speech at issue is ordinarily within the scope of the
employee’s professional duties.” Howell, 2016 WL 3595722, at *4 (citing Lane, 134 S.Ct. at
2378; Garcetti v. Ceballos, 547 U.S. 410, 424-25, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006))
(emphasis previously added).
Harris’s statements reporting a conflict of interest and improper conduct by Sheriff Hamp
to outside agencies were not within his ordinary job duties as an investigator. In their
depositions, Sheriff Hamp, Commander Davis, and Chief Deputy Stewart all testified that
Harris’s job responsibilities did not include reporting a conflict of interest to another agency.
Moreover, Sheriff Hamp testified that Harris’s outside conversations did not interfere with any
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operations of TCSD. While Harris’s statements may have been related to his employment, the
statements were not ordinarily within the scope of his professional duties as an investigator.
Regarding the third element, even if a public employee speaks on a matter of public
concern, the speech is only protected if the employee’s interest in expressing himself outweighs
the government’s interest in promoting the efficiency of its services. Pickering, 391 U.S. at 568.
In making this determination, the Court considers multiple factors, including:
(1) the degree to which the employee’s activity involved a matter of public
concern; (2) the time, place, and manner of the employee’s activity; (3) whether
close working relationships are essential to fulfilling the employee’s public
responsibilities and the potential effect of the employee’s activity on those
relationships; (4) whether the employee’s activity may be characterized as hostile,
abusive, or insubordinate; (5) whether the activity impairs discipline by superiors
or harmony among coworkers.
Jordan v. Ector Cty., 516 F.3d 290, 299 (5th Cir. 2008) (citing Brady v. Fort Bend Cty.,
145 F.3d 691, 707 (5th Cir. 1998)).
Moreover, “[t]he more central a matter of public concern the speech at issue, the stronger
the employer’s showing of counter-balancing governmental interest must be.” Jordan, 516 F.3d
at 299. The Fifth Circuit has often held that statements regarding police misconduct and
corruption are important matters of the utmost public concern. Markos v. City of Atlanta, Tex.,
364 F.3d 567, 570 (5th Cir. 2004).1
Taking into account the strong public interest in discovering police misconduct, the Court
finds that Harris’s interest in expressing himself outweighs Tunica County’s interest in
promoting efficiency. Harris’s communication with the District Attorney’s office, Attorney
1
See, e.g., Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001) (“There is perhaps no
subset of ‘matters of public concern’ more important, [for purposes of First Amendment
protection of speech of public employees,] than bringing official misconduct to light.”); Brawner
v. City of Richardson, Tex., 855 F.2d 187, 191-92 (5th Cir. 1988) (“The disclosure of
misbehavior by public officials is a matter of public interest and therefore deserves constitutional
protection, especially when it concerns the operation of a police department.”)
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General’s office, and Judge Linzy was directly related to police misconduct. Thus, Tunica
County must show a strong governmental interest to outweigh Harris’s interest in expressing
himself. Simply put, Tunica County cannot do so. The record provides no evidence that
Harris’s conduct inhibited the performance of his duties or working relationships with other
employees. Harris’s conduct was not hostile or abusive. Additionally, there is no evidence that
Harris’s conduct impaired discipline by superiors or harmony among employees. Ultimately, the
balancing test weighs in Harris’s favor.
Tunica County also argues that Harris cannot create a genuine issue of material fact as to
causation, contending there is no proof that his termination was motivated by his exercise of his
First Amendment right. The Court is unpersuaded by this argument. “[S]ummary disposition of
the causation issue in First Amendment retaliation claims is generally inappropriate.” Haverda
v. Hays Cty., 723 F.3d 586, 595 (5th Cir. 2013).2 The timing of Harris’s termination, along with
the multiple factual disputes between the parties surrounding the events leading up to Harris’s
termination, creates, at a minimum, a genuine issue of material fact such that a jury could find
that Harris’s termination was motivated by his exercise of his constitutional right to express
himself.
Because genuine disputes of material fact remain, summary judgment is not proper as to
Harris’s First Amendment retaliation claim.
Regarding the Title VII gender discrimination claim, the Court again finds that summary
judgment is not appropriate. To establish a circumstantial prima facie case of unlawful gender
discrimination, the plaintiff must show that: (1) he is a member of a protected class; (2) he is
2
See also Click v. Copeland, 970 F.2d 106, 113 (5th Cir. 1992) (“Whether an employee’s
protected conduct was a substantial or motivating factor in an employer’s decision to take action
against the employee is a question of fact, ordinarily rendering summary judgment
inappropriate.”)
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qualified; (3) he experienced an adverse employment decision; and (4) he was replaced by
someone outside the protected class or was treated less favorably than employees outside the
protected class. McDonnell Douglass Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). If the plaintiff establishes a prima facie case, the burden of production then
shifts to the defendant to produce evidence that the adverse employment action was taken “for a
legitimate, nondiscriminatory reason.” Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248,
254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Once the defendant has articulated legitimate,
nondiscriminatory reasons for its employment decision, the plaintiff must present “substantial
evidence indicating that the proffered legitimate nondiscriminatory reason is a pretext for
discrimination.” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). To show pretext on
summary judgment, the plaintiff must substantiate his claim by providing evidence that
discrimination lay at the heart of the employer’s decision. Price v. Fed. Express. Corp., 283
F.3d 715, 720 (5th Cir. 2002). Moreover, if the plaintiff can show that the employer’s stated
reason is false, this showing, along with a prima facie case, may permit the jury to find that the
employer discriminated against the plaintiff without the need for additional evidence. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
In the present case, Harris has provided sufficient evidence to prevent summary
judgment. There is no real dispute that Harris can establish a prima facie case, as he was a male
who was qualified for his job, terminated, and replaced by a female. Thus, the burden shifts to
Tunica County to articulate a legitimate nondiscriminatory reason for the termination. The
Employment Dismissal provided that Harris’s termination was due to his failure to timely submit
the Brown murder case for presentation to the grand jury, inappropriate communications with
Judge Linzy, and failure to honor a subpoena to appear in court.
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Through briefing and deposition testimony, Harris has rebutted these proffered reasons.
In his deposition, Sheriff Hamp testified that no other TCSD employee had been dismissed for
failure to complete the preparation of a case for the grand jury within eight months. Hamp also
testified that no person had been dismissed for failure to attend a court appearance. Moreover,
although Commander Davis testified that Judge Linzy described Harris’s tone as “more or less
forceful” during Harris’s conversation with her, Judge Linzy herself testified that she did not
think Harris was disrespectful or rude. In addition to rebutting Tunica County’s proffered
reasons, Harris has provided additional evidence of pretext through the deposition of Eva
Palmer, a former TCSD employee, who testified that Sheriff Hamp and Commander Davis often
provided preferential treatment to female employees.
Viewing this evidence in the light most favorable to Harris, the Court finds that genuine
issues of material fact remain in dispute, such that summary judgment is not proper.
III.
CONCLUSION
Rule 56 of the Federal Rules of Civil Procedure mandates that summary judgment be
granted only “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56. Upon review of the
pleadings and evidence, and for the reasons set forth above, the Court finds that genuine issues of
material fact exist, precluding summary judgment. Accordingly, it is hereby, ORDERED that
Tunica County’s Motion for Summary Judgment [53] is DENIED.
SO ORDERED this the 25th day of August, 2016.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI
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