Pree v. The Washington County Board of Supervisors et al

Filing 35

MEMORANDUM OPINION re 34 Order on Motions to Dismiss. Signed by District Judge Sharion Aycock on 2/3/2017. (dbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION

BRENDA PREE

PLAINTIFF

V.

CIVIL ACTION NO. 4:16-CV-122-SA-RP

THE WASHINGTON COUNTY
BOARD OF SUPERVISORS,
JESSE AMOS,
PAUL WATSON, JR., and
MIKE GORDON

DEFENDANTS
MEMORANDUM OPINION

Brenda Pree originally filed this case in the Circuit Court of Washington County,
Mississippi. The Defendants removed the case to this Court on June 15, 2016. In her Amended
Complaint [4-7], Pree alleges various claims against the Washington County Board of
Supervisors, as well as claims against County Supervisors Jesse Amos, Paul Watson Jr., and Mike
Gordon in their official and individual capacities. The Defendants filed two motions requesting
dismissal of particular claims [10, 12], and one asserting qualified immunity on behalf of the
individual defendants [8]. With the relevant responses, replies, and deadlines complete, these
motions are ripe for review.
Factual and Procedural Background
After the resignation of the Washington County Planning Director/Grant Writer, and the
multiple hospitalizations of the County Administrator in 2014, the County Board of Supervisors
recognized the need for additional personnel both to supplement or substitute for the current
County Administrator, and to do grant writing and administration. On November 4, 2014, the
Board of Supervisors authorized a call for applications for the position of Assistant County
Administrator/Human Resources Director. Subsequently, the Board approved Vicki Uppal to

serve temporarily as a grant writer and administrator for the County for a period of three months.
The Chancery Clerk issued an official Notice of Intent and subsequently published an
advertisement for the Assistant County Administrator position. On December 1, 2014, the Board
approved a salary for the position, and reviewed and added duties, including grant writing, to the
proposed job description. At that time, the Board also changed the job title to Assistant County
Administrator/Grants Coordinator.
By the deadline of December 12, 2014 the County received some thirty-six applications.
In February of 2015, four out of five of the Supervisors submitted their top choices from the pool
of applicants.1 From these choices the Board selected four top candidates for interviews. Both
Uppal and the Plaintiff were on the list of top candidates. After completing interviews, the Board
voted unanimously to appoint Uppal as Assistant County Administrator/Grants Coordinator. The
County Administrator continued to have health issues and eventually resigned effective June 30,
2015. On July 20, 2015 the Board appointed Uppal as County Administrator. The Board did not
advertise or consider other applicants for County Administrator.
According to the Plaintiff, several members of the Board conspired to manipulate the
application and appointment process for the County Administrator position. According to the
Plaintiff, the Board wanted a white person in the position instead of the Plaintiff, who is
African-American, even though the Plaintiff was more qualified. The Plaintiff alleges that the
Board appointed Uppal to the temporary grant writing position even though she had no experience.
Then, the Plaintiff alleges, the Board members added grant writing qualifications to the Assistant
County Administrator job description to make Uppal appear more qualified.
The Defendants filed a motion to dismiss the Plaintiff’s Title VII claims against the
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The Supervisor from District 3 did not submit a list of his top choices, but the other four Supervisors did.

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individual Defendants [10]. In her Response [18], the Plaintiff states that she did not intend to
assert Title VII claims against the individual defendants. Instead, the Plaintiff indicates that she is
pursuing a Title VII claim against the County only. For this reason, the Defendants’ motion is well
taken and the Plaintiff’s Title VII claims against the individual Defendants are dismissed with
prejudice.
The Defendants also filed a Motion to dismiss [12] the Plaintiff’s state law claim for
defamation. The Defendants argue, inter alia, that the claim is barred under the prerequisites of the
Mississippi Tort Claims Act, and that the Plaintiff failed to state a claim for defamation under
Mississippi Law. In her response [19], the Plaintiff concedes that dismissal of this claim is
appropriate. For this reason, the Defendants’ motion to dismiss the Plaintiff’s state law claim of
defamation is granted, and her defamation claim is dismissed with prejudice.
Thus, the Plaintiff has three remaining claims against the County, one Title VII claim, one
Equal Protection claim, and one due process claim based on the Mississippi Constitution.2 As to
the individual Defendants, the Plaintiff has an equal protection claim against each of them.3
The Defendants filed a Motion for Summary Judgment [8] invoking the protection of
qualified immunity and requesting dismissal of all the Plaintiff’s remaining claims against the
individual Defendants. The individual Defendants argue that they are entitled to qualified
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Although the Plaintiff’s Amended Complaint does not specifically state that her claim based on the Mississippi
Constitution is alleged against the County only, the individual Defendants are not named in this “Count” nor are any
specific actions of the individual Defendants alleged. For these reasons, the Court construes the Plaintiff’s seventh
claim as a claim against the County only or in the alternative against the County and the individual Defendants in their
official capacities.
3
Official-capacity suits “‘generally represent only another way of pleading an action against an entity of which an
officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985) (citing
Monell v. New York City Dep’t of Social Servc., 436 U.S. 658, 690, n. 55, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)). “As
long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects
other than name, to be treated as a suit against the entity. Id. (citing Brandon v. Holt, 469 U.S. 464, 471, 105 S. Ct. 873,
83 L. Ed. 2d 878 (1985)). Thus, the Plaintiff’s official capacity claims are claims against Washington County and not
against the individual Defendants.

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immunity because they did not violate the Plaintiff’s constitutional rights, and their conduct was
objectively reasonable. The Plaintiff responds by arguing that the individual Defendants violated
her constitutional right to equal protection when they “preselected” Uppal for the position because
of her race, and that their actions exhibited “deliberate indifference” to the Plaintiff’s clearly
established rights.
Qualified immunity
Qualified immunity protects government officials from liability for civil damages to the
extent that their conduct is objectively reasonable in light of clearly established law. Crostley v.
Lamar Cty., Texas, 717 F.3d 410, 422-24 (5th Cir. 2013) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982); Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir.
2004)). “[T]he usual summary judgment burden of proof is altered in the case of a qualified
immunity defense.” Wolfe v. Meziere, 566 F. App’x 353, 354 (5th Cir. 2014) (citing Michalik v.
Hermann, 422 F.3d 252, 262 (5th Cir. 2005); Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481,
489 (5th Cir. 2001)). “An [official] need only plead his good faith, which then shifts the burden to
the plaintiff, who must rebut the defense by establishing that the [official’s] allegedly wrongful
conduct violated clearly established law.” Id. The Plaintiff “cannot rest on conclusory allegations
and assertions but must demonstrate genuine issues of material fact regarding the reasonableness
of the officer’s conduct.” Id.
“A plaintiff can overcome a qualified immunity defense by showing (1) that the official
violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the
time of the challenged conduct.” Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir. 2016) (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011); Harlow v.

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Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). The second prong is
satisfied “only if ‘the state of the law at the time of the incident provided fair warning to the
defendants that their alleged [conduct] was unconstitutional.’” Kimbriel v. City of Greenville,
Miss., No. 15-60489, 2016 WL 1719108, at *2 (5th Cir. Apr. 28, 2016) (quoting Cass v. City of
Abilene, 814 F.3d 721, 728 (5th Cir. 2016); Tolan v. Cotton, ___ U.S. ___, 134 S. Ct. 1861, 1866
(2014)). The Court may conduct this two-pronged inquiry in any order. Crostley, 717 F.3d at
422-24 (citing Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009)).
Race Discrimination and Equal Protection
The Fourteenth Amendment to the United States Constitution provides that no state shall
“deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. AMEND.
XIV. To establish the requisite constitutional violation, and “to state a claim of racial
discrimination under the Equal Protection Clause, the Plaintiff ‘must allege and prove that she
received treatment different from that received by similarly situated individuals and that the
unequal treatment stemmed from a discriminatory intent.’” Gaalla v. Brown, 460 F. App’x 469,
479 (5th Cir. 2012) (quoting Priester v. Lowndes Cnty., 354 F.3d 414, 424 (5th Cir. 2004); Taylor
v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001) (per curiam)).
At the outset, the Court notes that it is clearly established that the Equal Protection Clause
of the Fourteenth Amendment prohibits intentional racial discrimination. See Blackwell v. Laque,
275 F. App’x 363, 367 (5th Cir. 2008); see also Piatt v. City of Austin, 378 F. App’x 466, 469 (5th
Cir. 2010) (stating that “intent is relevant to the first prong [of the qualified immunity analysis] but
not to the second prong because officials generally are precluded from proving that intentionally
discriminatory conduct is objectively reasonable”) (gathering cases). Thus, the Court’s analysis of

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whether the individual Defendants in this case are entitled to qualified immunity turns on whether
the Plaintiff has established the requisite constitutional violation, specifically whether she has
stated a claim for intentional race discrimination. Gaalla, 460 F. App’x at 479; Priester, 354 F.3d
at 424; Taylor, 257 F.3d at 473. In the end, “proof of racially discriminatory intent or purpose is
required to show a violation of the Equal Protection Clause.” Coleman v. Houston Indep. Sch.
Dist., 113 F.3d 528, 533 (5th Cir. 1997) (citing Village of Arlington Heights v. Metropolitan
Housing Dev. Corp., 429 U.S. 252, 265, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977)).
Because the “inquiry into intentional discrimination in public employment is essentially
the same for individual actions brought under sections 1981 and 1983, and Title VII,” to succeed
on a claim for intentional discrimination under Section 1983, Plaintiff must first prove a prima
facie case of discrimination either through direct evidence of discriminatory motive, or
circumstantial evidence under the McDonnell Douglas burden-shifting framework. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973); Lauderdale v.
Texas Dep’t of Criminal Justice, Institutional Div., 512 F.3d 157, 166 (5th Cir. 2007); Wallace v.
Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996).
Because the Plaintiff has not presented direct evidence of discrimination, the Court must
analyze her claims utilizing the McDonnell Douglas burden-shifting framework. That framework
requires that the Plaintiff establish that she (1) belongs to a protected class, (2) was qualified for
the positions from which she was excluded, (3) was subject to an adverse employment action, and
(4) was treated less favorably than similarly situated employees. Gaalla, 460 F. App’x at 480
(citing Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004). If the Plaintiff makes out
a prima facie case, it raises the presumption of discrimination, and the burden shifts to the

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employer to “articulat[e] a legitimate, nondiscriminatory reason for its actions.” Id. (citing
Meinecke v. H & R Block of Hous., 66 F.3d 77, 83 (5th Cir. 1995) (per curiam)). If the employer
articulates a reason, “the presumption disappears, and the Plaintiff must prove that the proffered
reasons are a pretext for discrimination.” Id.
Discussion and Analysis
Undisputed evidence in the record supports a conclusion that the Plaintiff has established a
prima facie case of discrimination here. First, the Plaintiff is African-American and therefore a
member of a protected class. Second, she was qualified for the position as she was one of the top
four candidates out a field of thirty-six and was selected for an interview. Third, she was not hired
for the position that she sought. Finally, a white person was hired instead.
In response to the presumption of discrimination raised by the Plaintiff’s prima facie case,
the individual Defendants assert that the Plaintiff was not hired because she was substantially less
qualified than Uppal. Specifically, the individual Defendants assert that in addition to her
undergraduate degree, Uppal had an advanced degree, a Masters in Business Administration from
the University of Michigan, that particularly qualified her for the position. The Plaintiff does not
possess any advanced degree. The individual Defendants also assert that the Plaintiff lied on her
resume when she indicated that she was then currently employed as the City Clerk for the City of
Jackson when she had in fact been terminated more than six months earlier.
Because the individual Defendants met their burden of producing a legitimate,
non-discriminatory reason for their decision, the burden shifts back to the Plaintiff to demonstrate
that this reason is mere pretext. Gaalla, 460 F. App’x at 480; Meinecke, 66 F.3d at 83. The Plaintiff
failed to produce any evidence of pretext or discriminatory intent as required to substantiate her

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claim. See Arlington Heights, 429 U.S. at 265, 97 S. Ct. 555; Coleman, 113 F.3d at 533.
Although the Plaintiff alleges that she was more qualified than Uppal, she offers no
evidence to support this allegation, and no argument or evidence to rebut the individual
Defendants’ assertion that Uppal was the more qualified candidate. The Plaintiff also alleges that
the individual Defendants demonstrated a pattern of invidious discrimination and that their actions
were racially motivated, but again offers no evidence to support her allegation. In response, the
individual Defendants point out that they personally voted to reappoint the Plaintiff when she was
previously employed as the Justice Court Clerk for Washington County. Finally, the Plaintiff
argues that the individual Defendants “preselected” Uppal because she is white, and that the
preselection is evidence of pretext. The Plaintiff cites to Rowe v. Jewell, 88 F. Supp. 3d 647, 665
(E.D. La, 2015) in support of her argument. The Plaintiff’s argument misses the mark, and is
unsupported by facts or evidence. The Rowe Court held that the plaintiff in that case failed to
demonstrate pretext through preselection because “pre-selection, in and of itself, does not establish
pretext unless the preselection was motivated by discriminatory animus.” Rowe, 88 F. Supp. 3d at
665 (citing Walsdorf v. Bd. of Comm’rs for the E. Jefferson Levee Dist., 857 F.2d 1047, 1051 (5th
Cir.1988); Hiner v. McHugh, 546 F. App’x 401, 407 (5th Cir. 2013)). As in Rowe, even if the
Plaintiff could prove that Uppal was preselected, she has not produced any evidence of motive or
discriminatory intent.
Conclusion
To avoid summary judgment, the nonmoving party must supply “evidence on which the
jury could reasonably find for the plaintiff.” Chen v. Ochsner Clinic Found., 630 F. App’x 218,
222–23 (5th Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505,

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91 L. Ed. 2d 202 (1986)). Mere “conclusory allegations, speculation, [or] unsubstantiated
assertions are inadequate to satisfy the nonmovant’s burden.” Id. (citing Douglass v. United Servs.
Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996)).
Although the Plaintiff established a prima facie case of discrimination, she failed to bring
forth any evidence that the individual Defendants’ proffered reason for not hiring her was
pretextual, and failed to bring forth any evidence of discriminatory motive or intent. See Gaalla,
460 F. App’x at 479; Priester, 354 F.3d at 424; Taylor, 257 F.3d at 473. For these reasons, the
Plaintiff cannot establish the requisite constitutional violation, and is therefore unable to overcome
the individual Defendants’ assertion of qualified immunity. See Ashcroft, 563 U.S. at 735, 131 S.
Ct. 2074; Harlow, 457 U.S. at 818, 102 S. Ct. 2727; Allen, 815 F.3d at 244.
The Court finds that the individual Defendants Amos, Watson, and Gordon are entitled to
qualified immunity on all of the Plaintiff’s claims. The Defendants’ Motion for Summary
Judgment [8] is GRANTED, and the Plaintiff’s claims against the individual Defendants are
DISMISSED with prejudice. As noted above, the Defendants’ other motions to dismiss [10, 12]
are also GRANTED, and the Plaintiff’s Title VII claims against the individual Defendants, as well
as the Plaintiff’s state law claim for defamation are DISMISSED with prejudice.
The Plaintiff’s three claims against the County, one Title VII claim, one Equal Protection
claim, and one due process claim based on the Mississippi Constitution remain.

SO ORDERED, on this the 3rd day of February, 2017.

/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE

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