Ross v. Greenwood Utilities
MEMORANDUM OPINION re 51 Order on Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 8/22/2014. (psk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
JESSE L. ROSS, JR.
CAUSE NO.: 4:12CV120-SA-JMV
Defendant Greenwood Utilities files this Motion for Summary Judgment  as to all
Plaintiff’s claims on procedural and substantive grounds. Because the Court finds that Plaintiff
may have failed to satisfy the exhaustion requirements of Title VII, has not complied with the
pleading requirement of Section 1981, and has provided no genuine disputes of material fact as
to any of his claims, the motion is GRANTED, and this case is DISMISSED.
Factual and Procedural Background
Greenwood Utilities, a municipal utility district, is governed by a three person
commission nominated by the mayor and approved by the Greenwood City Council. For over
twenty years, Jesse L. Ross was employed by the Greenwood Utilities, first as a systems
engineer and finally as senior vice president for electric distribution and engineering. He held
that position until his resignation in May of 2012. Ross contends his working conditions, under
the newly hired Caucasian CEO, were so intolerable, he was forced to quit.
In 2010, the Greenwood Utilities Commission decided to reorganize the management of
the municipal utility entity and thus began a search for a new CEO. Ross was originally on the
search committee formed for the purpose of identifying potential candidates for that position.
Indeed, while the search for CEO was ongoing, Ross was appointed as part of the three-person
management team to be in charge of the day-to-day operations of Greenwood Utilities. Once
Ross submitted his application for the CEO position, however, he was removed from the search
committee. Ross and two other candidates were interviewed in late summer of 2010. The threemember Greenwood Utilities Commission, however, was unable to unanimously agree to any of
In his Complaint, Ross contends that the two African Americans on the
Commission supported him, while the Caucasian Chairman, James Quinn, supported a Caucasian
candidate. The Commission never formally voted on any of the candidates to become the
Greenwood Utilities’ CEO.
In November of 2011, the Commission make-up changed from a majority AfricanAmerican Commission, to a majority Caucasian Commission. The new Commission renewed
efforts to find a CEO for Greenwood Utilities. The Commission only interviewed one candidate,
Brian Finnegan, a Caucasian male. On January 21, 2012, all three Commissioners unanimously
agreed on his hire and an employment contract between Finnegan and the Commission was
signed. It is undisputed that Chairman Quinn notified the management team on January 24,
2012, of Finnegan’s hire. However, the record fails to reflect Greenwood Utilities Commission
minutes officially hiring Finnegan.
Finnegan documented complaints about Ross’ work performance on May 18, 2012, and
placed him on a six months’ probation period pending improvement. In particular, Finnegan
cited Ross’s failure to respond to emails, failure to represent Greenwood Utilities in a positive
manner, and failure to attend a scheduled meeting. Finnegan also claimed Ross failed to produce
an assigned project and noted that “Mr. Ross does not appear to be a team player.” Three days
later, Ross submitted his resignation.
Ross filed a Charge with the EEOC on July 26, 2012 on the basis that he was not selected
as CEO and was constructively discharged because of his race. Once he received his right to sue
letter, he instituted this action in which he alleges Greenwood Utilities discriminated him based
on his race under Title VII by failing to promote him and by constructively discharging him,
discriminated against him pursuant to Section 1981, and breached his employment contract by
constructively discharging him.
Defendant has filed a Motion for Summary Judgment.
Plaintiff’s response was extremely untimely without any explanation; therefore, the Court has
struck that Response and will not consider it on summary judgment.
Summary Judgment Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil
Procedure when the evidence reveals no genuine dispute regarding any material fact and the
moving party is entitled to judgment as a matter of law. The rule “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S. Ct. 2548.
The nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts
showing that there is a genuine issue for trial.’” Id. at 324, 106 S. Ct. 2548 (citation omitted). In
reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but
only when . . . both parties have submitted evidence of contradictory facts.” Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
Here, Plaintiff’s untimely response has been struck by the Court. Therefore, pursuant to
Federal Rule of Civil Procedure 56(e), the Court considers the facts as represented in the Motion
for Summary Judgment to be undisputed for purposes of the motion.
Analysis and Discussion
Failure to Promote under Title VII
Initially, Defendant argues that Plaintiff failed to file his charge with the EEOC within
180 days of the alleged discriminatory act. This 180-day time period acts as a statute of
limitations. Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999). Indeed, discrete
employment actions, “such as termination, failure to promote, denial of transfer, or refusal to
hire,” occurring more than 180 days before an EEOC charge is filed are “untimely filed and no
longer actionable.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15, 122 S. Ct.
2061, 153 L. Ed. 2d 106 (2002).
This limitations period “begins to run from the time the
complainant knows or reasonably should have known that the challenged act has occurred.”
Ramirez v. City of San Antonio, 312 F.3d 178, 181 (5th Cir. 2002) (citations and quotations
The United States Supreme Court has noted that a “discrete retaliatory or
discriminatory act ‘occurred’ on the day that it ‘happened.’” Nat’l R.R. Passenger Corp., 536
U.S. at 110, 112 S. Ct. 2061; see also Celestine v. Petroleos de Venezuella SA, 266 F.3d 343,
352 (5th Cir. 2001) (“An employee who claims to be the victim of a racially motivated failure to
promote . . . . is put on notice that his rights have been violated at the time the adverse
employment decision occurs, and must therefore bring the claim within 180 days of the adverse
Here, the Court is faced with determining what day Plaintiff’s failure to promote
“happened.” Defendant argues that the alleged discriminatory act occurred on the date Plaintiff
received notice that Finnegan would be taking over as CEO. Plaintiff submitted his resume in
August of 2010 and was interviewed by the CEO search committee that same month. The
position remained unfilled until January of 2012. As of January 2012, Plaintiff was never
officially told that he was not going to be hired. He further testified that he assumed the hiring of
the CEO had been tabled for the 2011 year, but once Chairman James Quinn informed him that
Finnegan had been hired as CEO, Ross unequivocally knew, as of January 24, 2012, that he had
not been promoted.
By request of the Court, the Plaintiff supplemented the record with the minutes of the
Greenwood Public Utilities Commission showing that Brian Finnegan was officially hired on
February 3, 2012.1 Greenwood Utilities is a city-owned utility that provides electric and water
services. The Mississippi Supreme Court has noted that the board of a utilities district is a
“public corporation and body politic” such that the public utilities board’s actions fall under
those generally recognized holdings that limit such bodies to speak and act only through their
minutes. Rawls Springs Util. Dist. v. Novak, 765 So. 2d 1288, 1291 (Miss. 2000). Indeed,
Mississippi strictly adheres to the “fundamental and inviolable policy” that “public boards speak
only through their minutes and their actions are evidenced solely by entries on the minutes.” Pike
County v. Indeck Magnolia, LLC, 866 F. Supp. 2d 589, 591-92 (S.D. Miss. 2012) (quoting
Thompson v. Jones County Cmty. Hosp., 352 So. 2d 795, 796 (Miss. 1977)). Because “[t]he
minutes of the [public] board . . . are the sole and exclusive evidence of what the board did” . . .
“the minutes . . . must be the repository and the evidence of their official acts.” Thompson, 352
So. 2d at 796.
The Court requested such supplementation to be included in the record by August 8, 2014. Plaintiff responded
untimely on August 11, 2014. The Court is under no obligation to consider the late-filed supplement.
Defendant contends that the pertinent date here is when the adverse employment decision
was communicated to the plaintiff, not the date when the decision goes into effect. According to
the Fifth Circuit, the 180 day limitations period begins to run on the date the plaintiff had
“knowledge sufficient to support the [Title VII] claim.” See Phillips v. Leggett & Platt, Inc., 658
F.3d 452, 453-55 (5th Cir. 2011) (noting that the 180-day period “begins when an employee is
unambiguously informed” of the adverse employment action).
According to Defendant,
Plaintiff’s limitations period began to run on January 24, 2012, the date the Plaintiff
unequivocally and admittedly had notice that he would not be hired as the new CEO. After
reviewing the submissions of the parties and the case law authority, the Court determines that
Plaintiff received notice that he would not be hired in the CEO position on January 24, 2012.
Accordingly, Plaintiff’s charge of discrimination filed July 26, 2012, was outside the 180-day
limitations period. Plaintiff’s Title VII claims are thus time-barred.
In an abundance of caution, however, due to the extensive case law noting that a public
board can only take action through its minutes, the Court analyzes Plaintiff’s Title VII claims as
if they were timely filed.2 In order to state a prima facie case of discrimination based on a failure
to promote, the Plaintiff must show that: (1) he belongs to a protected class; (2) he was qualified
for position; (3) despite his qualifications, he was rejected; and (4) after his rejection, the
position remained open and his employer continued to seek applicants from persons of his
qualifications. Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 324 (5th Cir. 2002) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973);
Bennett v. Total Minatome Corp., 138 F.3d 1053, 1060 (5th Cir. 1998)). If Ross establishes a
prima facie case, the burden shifts to Defendant to articulate a legitimate, nondiscriminatory
The Court acknowledges that the Board’s official minutes state that Finnegan was hired on February 3, 2012,
which, if the Court were to rely on Mississippi state law regarding public board actions, would be within 180 days of
the filing of the EEOC charge.
reason for its decision not to promote Ross. Once Defendant articulates such a reason, Ross must
show that Greenwood Utilities discriminated against him, and may do so by demonstrating that
Defendant’s articulated reason is merely a pretext for discrimination. Id. (citing Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000);
McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817).
Defendant contends Plaintiff cannot satisfy his prima facie case as he was not “qualified
for the position.” Indeed, the job posting required applicants to have “[a] Bachelor’s Degree in
Mechanical or Electrical Engineering or equivalent experience with a minimum of 10 to 15 years
experience in a senior utility management position.”
It is undisputed that Plaintiff has a
Bachelor’s Degree in Electrical Engineering. While Plaintiff did acknowledge that he lacked the
“minimum of 10 to 15 years in a senior utility management position,” it appears, based on Brian
Finnegan’s resume that he lacked those years in a senior utility management position as well.
“An employer may establish job requirements, and rely on them in arguing that a prima
facie case is not established because the employee is not ‘qualified.’” Johnson v. Louisiana, 351
F.3d 616, 622 (5th Cir. 2003) (citation omitted). But those qualifications must be objective ones.
Id. An employer may not “‘utilize wholly subjective standards by which to judge its employees’
qualifications and then plead lack of qualification when its promotion process . . . is challenged
as discriminatory.’” Medina v. Ramsey Steel Co., 238 F.3d 674, 681 (5th Cir. 2001) (quoting
Crawford v. W. Elec. Co., 614 F.2d 1300, 1315 (5th Cir. 1980)). Additionally, “[a]llowing an
employer to point to objective requirements in arguing that a plaintiff is unqualified, even though
the requirements were not applied to other employees, would subvert the intent of Title VII and
McDonnell Douglas.” Johnson, 351 F.3d at 624. In those cases, a plaintiff may overcome a lack
of objective qualifications at the prima facie stage if he can establish that the employer applied
an objective requirement subjectively by promoting employees lacking the qualification. Id. at
624-25 (“[H]iring an employee who does not meet the company’s objective requirements is
basically a subjective determination: the employee can do the job despite the fact that she does
not meet the technical requirements.”). The Court finds that the Plaintiff has surpassed this
prima facie burden.
Greenwood Utilities offer that Ross was not promoted to CEO as Finnegan was the best
candidate for the CEO position in light of his resume and experience in utilities management.
Plaintiff’s deposition testimony reveals that Ross did not know why Finnegan was hired over
Ross was further unable to offer any evidence that the Commission’s decision was
pretextual of a discriminatory motive on the part of that body. Thus, Ross failed to surpass his
burden on summary judgment of showing a genuine dispute of material fact as to his failure to
promote claim. This Title VII claim is due to be dismissed.
Constructive Discharge under Title VII
Plaintiff additionally charged that he was constructively discharged because of his race.
There is no dispute regarding the timeliness of Plaintiff’s constructive discharge claim to the
As the Fifth Circuit has explained, “constructive discharge is not itself a cause of action.
It is a means of proving the element of an adverse employment action where the employee quits
instead of being fired.” Wells v. City of Alexandria, No. 03-30750, 2004 U.S. App. LEXIS 8525,
2004 WL 909735, *3 (5th Cir. Apr. 29, 2004). “[A]n adverse employment action consists of
‘ultimate employment decisions such as hiring, granting leave, discharging, promoting, and
compensating.’” Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004) (citing Felton v.
Polles, 315 F.3d 470, 486 (5th Cir. 2002)) (emphasis in original). “Where, as here, an employee
resigns, he may satisfy the discharge requirement by proving constructive discharge.” Faruki v.
Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir. 1997) (citation omitted) (emphasis in original).
According to the Fifth Circuit Court of Appeals,
An employee who resigns may demonstrate constructive discharge by two
means. First, she can “offer evidence that the employer made her working
conditions so intolerable that a reasonable employee would feel compelled to
resign.” Barrow v. New Orleans Steamship Assoc., 10 F.3d 292, 297 (5th Cir.
1994). Second, an employee can prove constructive discharge with evidence
that she was given an ultimatum requiring her to choose between resignation
and termination. Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir.
David v. Pointe Coupee Parish Sch. Bd., 247 F.3d 240, PPC (5th Cir. 2001). To determine
whether a reasonable person would feel compelled to resign, the Court looks for the following
(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4)
reassignment to menial or degrading work; (5) reassignment to work under a
younger supervisor; (6) badgering, harassment, or humiliation by the
employer calculated to encourage the employee’s resignation; or (7) offers of
early retirement or continued employment on terms less favorable than the
employee’s former status.
Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001) (punctuation omitted). The
plaintiff must prove “a greater degree of harassment than that required by a hostile environment
claim.” Id. Discrimination alone is insufficient to establish constructive discharge; there must be
aggravating factors. Id.
Here, Plaintiff contends his working conditions were intolerable once Finnegan
counseled him about performance issues and placed Ross on a performance plan. Ross testified
that his supervisor “threatened to fire me.” He stated,
Every day I came to work under him it was another round of you didn’t do
this or you didn’t do that or that didn’t get done or you’re not a team player.
So I just don’t think anybody has to work under those terrible situations. The
complete brow beating, the watching, you know, every move you make, the
note taking, the picture taking.
Plaintiff has failed to put forth any allegations of discrimination motivating the performance
Further, Plaintiff has not alleged any “aggravating factors” to establish constructive
discharge. Accordingly, Plaintiff has failed to show he suffered an adverse employment action.
Since he cannot establish a prima facie case of discrimination, the Defendant’s request for
summary judgment as to this claim is granted.
Defendant contends that Plaintiff’s Section 1981 claim should be dismissed procedurally
and substantively. Primarily, Defendant notes that Ross did not bring him claim pursuant to 42
U.S.C. Section 1983. Indeed, a perusal of Plaintiff’s complaint yields no mention of that statute.
“Claims that a municipality violated § 1981 must be brought under § 1983, which
provides the remedial scheme to challenge state action.” Glaskox v. Harris County, 527 F. App’x
525, 528 (5th Cir. 2013) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36, 109 S. Ct.
2702, 105 L. Ed. 2d 598 (1989)). “Section 1981 does not itself create a cause of action against a
municipality; rather, a plaintiff complaining of a municipality’s violations of § 1981 must assert
his claims via § 1983.” Crawford v. City of Houston, Tex., 260 F. App’x 650, 652 (5th Cir.
2007) (citing Felton v. Polles, 315 F.3d 470, 481-82 (5th Cir. 2002); Oden v. Oktibbeha Cnty.,
Miss., 246 F.3d 458, 463-64 (5th Cir. 2001)). This requirement is “not a mere pleading
formality,” and requires dismissal if not properly pled. Felton, 315 F.3d at 482.
As noted, Plaintiff failed to pursue his Section 1981 claim through the proper vehicle,
Section 1983. Accordingly, that claim is dismissed.
Breach of Contract Claim
Plaintiff’s allegation that Greenwood Utilities breach his employment contract is based
on his assertion that that entity “constructively terminat[ed] him on account of his race.” As
noted above, Plaintiff has failed to put forth sufficient evidence that he was constructively
discharged. Accordingly, this claim is also dismissed. See Cothern v. Vickers, Inc., 759 So. 2d
1241, 1246 (Miss. 2000) (noting the same standard under Mississippi law as for federal civil
rights claims for constructive discharge).
Plaintiff’s claims do not survive summary judgment. Accordingly, Defendant’s motion is
GRANTED, the Plaintiff’s claims are DISMISSED, and this case is CLOSED.
SO ORDERED, this the 22nd day of August, 2014.
/s/ Sharion Aycock_________
U.S. DISTRICT JUDGE
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