Gray v. City of Gautier, Mississippi et al
Filing
49
ORDER granting Defendants' Motion for Summary Judgment 34 ; denying Plaintiff's Motion for Summary Judgment 36 . Signed by District Judge Halil S. Ozerden on 09/07/2012 (HM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
MICHAEL D. GRAY
v.
PLAINTIFF/
COUNTER DEFENDANT
Civil No. 1:10-cv-00506-HSO-JMR
CITY OF GAUTIER, MISSISSIPPI,
TOMMY FORTENBERRY, and
SIDNEY RUNNELS
DEFENDANTS/
COUNTERCLAIMANTS
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is a Motion for Summary Judgment [34] filed by
Defendants City of Gautier, Mississippi, its Mayor Tommy Fortenberry, and former
City Manager, Sidney Runnels. Plaintiff Michael Gray has filed a Response [41],
and Defendants a Reply [44]. Plaintiff has also filed a Motion for Summary
Judgment [36]. Defendants have filed a Response [39], and Plaintiff a Reply [45].
After consideration of the parties’ submissions, the record, the relevant legal
authorities, and for the reasons discussed below, the Court finds that Defendants’
Motion for Summary Judgment [34] should be granted, and that Plaintiff’s Motion
for Summary Judgment [36] should be denied.
I. BACKGROUND
Plaintiff’s Complaint alleges that the City of Gautier, Mayor Fortenberry,
and former City Manager Runnels (“Defendants”), denied him due process and
defamed him when the City terminated him as the Fire Chief after fifteen years in
the position. Pl.’s Compl. [1] at pp. 3-4. Plaintiff also asserts promissory estoppel
and breach of implied contract claims against all Defendants, along with a
malicious interference with employment claim against Runnels. Id. at pp. 1, 3.
According to Defendants, Plaintiff was fired for claiming his ex-wife, Ava, as
his spousal beneficiary on the City’s health insurance plan. Defs.’ Answer [8] at pp.
4-5. The City’s plan only permitted spouses to be added as beneficiaries if they
were legally married to the insured employee. Plan Document [36-4] at p. 4, Ex. 8
to CSC Hearing Tr. [36-3]. The City took the position that Plaintiff committed
fraud and misappropriated City funds by adding his ex-wife to the City’s plan.
Letter [34-10], Ex. 10 to Defs.’ Mot. for Summ. J. [34]; Test. of Sidney Runnels, Civil
Service Commission (CSC) Hearing Tr. [36-3] at pp. 40-42, Ex. C to Pl.’s Mot. for
Summ. J. [36]. Plaintiff does not dispute that he represented that Ava was his wife,
or that he named her as his spouse on the City’s plan. Pl.’s Resp. [41] at pp. 1-2.
Nor does he contest that the City provided health insurance coverage for Ava for six
years, while she was not his wife, and that this coverage cost the City $26,139.30 in
medical insurance premiums and $112,302.90 in medical treatment costs. Dep. of
Michael Gray [41-2] at pp. 29-32, 69, 72-73, Ex. B to Pl.’s Resp. [41]. Plaintiff
contends, however, that the City was wrong to accuse him of fraud or to report to
2
the media that he was accused of fraud, when he did not purposefully commit any
wrongdoing. Pl.’s Compl. [1] at pp. 2-3.
Plaintiff originally added Ava as a beneficiary to his health insurance policy
with the City in 1996. Pl.’s Resp. [41] at p. 2. He removed her after their divorce in
1988. Id. The two never remarried. According to Plaintiff, they later reconciled,
and this fact was known to City officials. Dep. of Tommy Fortenberry [36-6] at pp.
42-44, Ex. E [36-6] to Pl.’s Mot. for Summ. J. [36]; Pl.’s Resp. [41] at p. 14; Dep. of
Michael Gray [41-2] at p. 47. Plaintiff contends that he and Ava tried to remarry in
the Catholic Church, but their priest would not remarry them because their
marriage had not been formally annulled by the Church. Pl.’s Resp. [41] at p. 2;
Dep. of Michael Gray [41-2] at pp. 32-33, 41, 47. He contends that he explained the
situation to Kathy Burlison, a City Clerk who handled the City’s health insurance
matters. Pl.’s Resp. [41] at pp. 2, 14; Dep. of Michael Gray [41-2] at pp. 32-41, 4748; Dep. of Tommy Fortenberry [36-6] at p. 104. He asked Burlison if, under the
circumstances, he could re-enroll Ava as a spousal beneficiary on the City’s plan.
Pl.’s Reply [45] at p. 1. According to Plaintiff, Burlison told him that he could do so.
Id. at pp. 1-4. Plaintiff argues that he relied on Burlison’s advice and intended no
wrong. Id.
Burlison is no longer employed by the City, and her testimony is not in the
record. Plaintiff has submitted the affidavit of Victor Walsh, who was employed by
the City’s plan administrator. Aff. of Victor Walsh [41-5], Ex. D to Pl.’s Resp. [41].
He states that he remembers discussing Plaintiff’s request to re-enroll Ava with
3
Burlison in 2003. Id. He does not, however, state that Plaintiff was given
permission to add Ava as his beneficiary. Id. Plaintiff testified that if he had
known that he was doing something improper by enrolling Ava in 2003, he would
have obtained a marriage certificate. Dep. of Michael Gray [41-2] at p. 48.
There is evidence in the record that Plaintiff and Runnels had disagreements
at work shortly before Plaintiff’s termination. Dep. of Tommy Fortenberry [36-6] at
pp. 38-39. Plaintiff contends that he was fired by Runnels because of a personal
grudge, and not because he added Ava to his policy. Dep. of Michael Gray [41-2] at
pp. 106-07. The record reflects that Runnels approached Plaintiff in August 2009,
and asked him if he was married. Id. at pp. 58-60; Test. of Sidney Runnels, CSC
Hearing Tr. [36-3] at p. 45. Runnels had apparently learned through other sources
that Plaintiff was not legally married. Test. of Sidney Runnels, CSC Hearing Tr.
[36-3] at pp. 90-92. Plaintiff maintains that he did not answer Runnels’ inquiry
about his marital status. Dep. of Michael Gray [41-2] at pp. 55-56. Runnels
testified that Plaintiff told him that he was married. Test. of Sidney Runnels, CSC
Hearing Tr. [36-3] at p. 45. When Plaintiff realized that Runnels was probably
asking about his marital status because Ava had been added as his beneficiary on
the City’s health insurance plan, he quickly married Ava in a civil ceremony on
September 4, 2009. Dep. of Michael Gray [41-2] at pp. 58-59.
Runnels conducted an investigation into Plaintiff’s marital status and
ordered an insurance audit. Memo [36-7], Ex. 8 to Dep. of Tommy Fortenberry [366]; Test. of Sidney Runnels, CSC Hearing Tr. [36-3] at pp. 64-65, 88. He confirmed
4
through the investigation that Plaintiff was not legally married to Ava. Test. of
Sidney Runnels, CSC Hearing Tr. [36-3] at pp. 89-91. Runnels notified Plaintiff in
a letter dated October 15, 2009, that he was suspended, and that he intended to
terminate him. Letter [36-7], Ex. 10 to Dep. of Tommy Fortenberry [36-6].
Runnels’ letter accused Plaintiff of “fraudulently enroll[ing] Ava Gray on the City’s
Medical Insurance at a time when she was not recognized under the laws of the
State of Mississippi as [his] Spouse.” Id. Runnels also reported Plaintiff to the
State Auditor’s Office for fraud. Letter [36-7], Ex. 9 to Dep. of Tommy Fortenberry
[36-6].
After receiving Runnels’ October 15, 2009, letter, Plaintiff retained an
attorney, who wrote Runnels and requested “a full pre-termination hearing as soon
as possible.” Letter [34-11], Ex. 11 to Defs.’ Mot. for Summ. J. [34]. Runnels
arranged a meeting. Letter [34-12], Ex. 12 to Defs.’ Mot. for Summ J. [34]. On
October 23, 2009, Plaintiff and his attorney met with Runnels, Mayor Fortenberry,
and City Attorney Robert Ramsey. Dep. of Michael Gray [41-2] at p. 81. Runnels
mailed Plaintiff a letter that same day informing him that he was terminated,
effective immediately, and that he had the right to file a written demand with the
City’s Civil Service Commission for an investigation and hearing. Letter [34-13],
Ex. 13 to Defs.’ Mot. for Summ. J. [34].
The day following the pre-termination meeting, and before Plaintiff received
his termination letter, it was reported in the media that Plaintiff had been
suspended and was facing termination for alleged insurance fraud. Dep. of Michael
5
Gray [41-2] at pp. 77-89. Mayor Fortenberry was interviewed on the local news,
and articles appeared in several local newspapers. Articles [36-7], Exs. 12 and 14 to
Dep. of Tommy Fortenberry [36-6]; Articles [34-14], Ex. 14 to Defs.’ Mot. for Summ.
J. [34]. The media reported that Plaintiff was suspended after an insurance audit
found that he had listed his ex-wife among his dependents on the City’s health
insurance plan, at a cost to the City of nearly $140,000 over six years. Id. Mayor
Fortenberry informed the media that he did not know if the City would take legal
action against Plaintiff, and he stated that Plaintiff had been a good fire chief who
would be missed. Articles [36-7], Exs. 12 and 14 to Dep. of Tommy Fortenberry
[36-6].
Plaintiff requested a Civil Service Commission hearing to challenge his
termination, and one was held on December 10, 2009. Pl.’s Resp. [41] at p. 5.
Plaintiff did not testify. CSC Hearing Tr. [36-3] at pp. 107-11. Plaintiff’s attorney
advised the Commission that Plaintiff would invoke his Fifth Amendment privilege,
and would not testify due to the State Auditor’s Office’s pending fraud
investigation. Id. at pp. 107-09. Following the hearing, the Commission upheld
Plaintiff’s termination. Id. at 116.
Plaintiff contends that he has repeatedly been rejected for employment since
it was publicized that he was accused of insurance fraud. Pl.’s Resp. [41] at p. 6.
He claims that the City’s actions have caused him to live in poverty, to lose his
home, and to suffer emotional distress. Pl.’s Compl. [1] at p. 4; Pl.’s Resp. [41] at p.
7. He seeks actual and punitive damages. Pl.’s Compl. [1] at p. 4.
6
II. DISCUSSION
A.
Jurisdiction
The Court has original jurisdiction over Plaintiff’s Fourteenth Amendment
due process claim. 28 U.S.C. § 1331. The Court has supplemental jurisdiction over
the state law claims in Plaintiff’s Complaint, and those in Defendants’
counterclaims, because they are so related to Plaintiff’s Fourteenth Amendment
claim that they form part of the same case or controversy. 28 U.S.C. § 1367.
B.
Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment is
appropriate “[i]f 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). The purpose of summary judgment is to isolate and dispose of
factually unsupported claims or defenses. Melton v. Teachers Ins. & Annuity Ass’n
of Am., 114 F.3d 557, 560 (5th Cir. 1997)(citing Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)).
To rebut a properly supported motion for summary judgment, the opposing party
must show, with “significant probative evidence,” that there exists a genuine issue
of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.
2000). In deciding whether summary judgment is appropriate, the Court views
facts and inferences in the light most favorable to the nonmoving party. RSR Corp.
v. Int’l Ins. Co., 612 F.3d 851, 858 (5th Cir. 2010). However, if the evidence is
merely colorable, or is not significantly probative, summary judgment is
7
appropriate. Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co, 671
F.3d 512, 516 (5th Cir. 2012)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986)). “[M]ere conclusory allegations are not competent summary judgment
evidence, and such allegations are insufficient, therefore, to defeat a motion for
summary judgment.” Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
“There is no material fact issue unless the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” RSR Corp., 612 F.3d at 858.
“A fact is ‘material’ if its resolution in favor of one party might affect the outcome of
the lawsuit under governing law. An issue is ‘genuine’ if the evidence is sufficient
for a reasonable jury to return a verdict for the nonmoving party.” Hamilton, 232
F.3d at 477 (citing Anderson, 477 U.S. at 248). “The court has no duty to search the
record for material fact issues.” RSR Corp., 612 F.3d at 858. “Rather, the party
opposing summary judgment is required to identify specific evidence in the record
and to articulate precisely how this evidence supports his claim.” Id.
C.
Defendants’ Motion for Summary Judgment
1.
Plaintiff’s Fourteenth Amendment Liberty Interest Claim
Plaintiff contends that Defendants “denied [him] liberty without due process
of law, [because they] terminated him and made false, defamatory statements about
him without giving him adequate notice of the charges being made or a reasonable
opportunity to be heard on the matter.” Pl.’s Compl. [1] at p. 3. Defendants argue
that Plaintiff cannot prevail on this claim because, among other reasons, he was
8
given adequate notice and an opportunity to be heard, both prior to and following
his termination.
“If a government employer discharges an individual under circumstances
that will do special harm to the individual's reputation and fails to give that
individual an opportunity to clear his name, . . . the individual may recover
monetary damages under § 1983 for the deprivation of his liberty interest under the
Fourteenth Amendment.” Hughes v. City of Garland, 204 F.3d 223, 226 (5th Cir.
2000). To prevail on his § 1983 liberty interest claim, Plaintiff must show: (1) that
he was discharged; (2) that stigmatizing charges were made against him in
connection with the discharge; (3) that the charges were false; (4) that he was not
provided notice or an opportunity to be heard prior to his discharge; (5) that the
charges were made public; (6) that he requested a hearing to clear his name; and (7)
that the employer refused his request for a hearing. Id. He must produce evidence
in support of every element in order to have a cognizable claim. Id. at 227.
Plaintiff cannot prevail on his Fourteenth Amendment claim because the City
clearly provided him adequate notice and an opportunity to be heard, both prior to
his termination, and following his termination at the Civil Service Commission
hearing.
a.
Pre-termination Hearing
The City was required to provide Plaintiff “‘some kind of hearing’ before
termination,” which “may consist of no more than a meeting at which the employer
states the grounds for dismissal and gives the employee an opportunity for
9
rebuttal.” Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991)(citing Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 546 (1985)). “[A] brief pre-termination
hearing is satisfactory so long as it is coupled with more formal post-termination
proceedings . . . .” Id. “[T]he pretermination hearing need not definitively resolve
the propriety of the discharge. It should be an initial check against mistaken
decisions – essentially, a determination of whether there are reasonable grounds to
believe the charges against the employee are true and support the proposed action.”
Loudermill, 470 U.S. at 545-46; see Gilbert v. Homar, 520 U.S. 924, 933
(1997)(stating that the purpose of pre-suspension process, assuming it is even
required, is “to assure that there are reasonable grounds to support the
suspension.”).
Plaintiff was given written notice prior to his termination, explaining the
reason for his suspension and proposed termination. Letter [34-10], Ex. 10 to Defs.’
Mot. for Summ. J. [34]. He and his attorney were given a pre-termination meeting
with Runnels and Mayor Fortenberry. Pl.’s Resp. [41] at pp. 12-13. Plaintiff does
not allege that he was unable to offer a rebuttal to the City’s allegations during that
meeting. The pre-termination meeting on October 23, 2009, satisfied due process,
particularly considering that Plaintiff was afforded a post-termination opportunity
to clear his name during a formal, public hearing before the Civil Service
Commission.
10
b.
Post-termination Hearing
A post-termination hearing satisfies due process so long as the employee is
offered a “hearing providing a public forum or opportunity to clear [his] name.”
Rosenstein v. City of Dallas, 876 F.2d 392, 396 (5th Cir. 1989). Due process does not
require the employer to actually review its decision to discharge the employee. Id.
at 396.
Plaintiff admits that he was given a post-termination hearing before the Civil
Service Commission. Pl.’s Resp. [41] at pp. 12-13. The hearing was open to the
public. Dep. of Michael Gray [36-2] at pp. 99-103. Plaintiff’s attorney requested
and received copies of Plaintiff’s employee file and other documents prior to the
hearing. Id. at pp. 101-02. Plaintiff was able to subpoena and examine witnesses.
Id. at pp. 102-03. He had the opportunity to put on his case. Id. at p. 100. Two
Commissioners asked Plaintiff to testify and relate his version of events, but
Plaintiff, through his attorney, invoked his Fifth Amendment privilege and elected
not to testify. Id. at pp. 103-04, 109; CSC Hearing Tr. [36-3] at pp. 107-11.
Plaintiff argues that the hearing was inadequate because he was not advised
of his Miranda rights. Pl.’s Resp. [41] at p. 13. He argues that because Defendants
were “pursuing criminal charges” against him, they should have advised him of his
Miranda rights at the hearing. Id. He also claims that his Fifth Amendment right
against self-incrimination was violated, because one of the Commissioners
commented on his failure to testify at the hearing, and stated: “Nobody here truly
knows the intent of what happened here except what’s in that man’s heart right
11
there. So I think it’s a fair question to be asked here for one thing. Mr. Gray is on
that day, you know, nobody knows but you.” Id.; CSC Hearing Tr. [36-3] at p. 109.
In support of his Miranda argument, Plaintiff cites one case, Detro v. Roemer,
732 F. Supp. 673 (E.D. La. 1990). In Detro, a public university employee alleged
that the university violated his Fifth Amendment rights by not Mirandizing him
during an audit, where the results of the audit led to his termination. Id. at 676.
The plaintiff claimed that he was interrogated in his office, and was not free to
leave. Id. He also alleged that other employees were Mirandized and threatened
with arrest during the audit. Id. In denying the defendant’s motion to dismiss, the
court concluded that the alleged interrogation was arguably a custodial
interrogation, requiring that the plaintiff be informed of his Miranda rights. Id.
Assuming, as did the court in Detro, that the Fifth Amendment can apply in noncriminal proceedings, Plaintiff has not alleged or produced any evidence of
compulsion, as was the case in Detro. Plaintiff was not compelled to attend the
Civil Service Commission hearing. He requested both the pre-termination meeting
and Commission hearing, and he was free to leave at any time. The City was not
required to Mirandize Plaintiff at the hearing.
Plaintiff has cited no case law to support his argument that the
Commissioner’s comment violated his Fifth Amendment right against selfincrimination. In civil proceedings, a party is generally free to argue that an
adverse inference may be drawn from the other party’s failure to testify. Baxter v.
Palmigiano, 425 U.S. 308, 318 (1976); Hinojosa v. Butler, 547 F.3d 285, 291 (5th
12
Cir. 2008). Plaintiff was represented by counsel at the hearing in order to advise
him of the advantages and disadvantages of invoking his Fifth Amendment
privilege. His self-incrimination argument is unavailing.
Based on the foregoing, the Court concludes that Plaintiff cannot meet his
summary judgment burden on his federal claim, and that it should be dismissed.
Having dismissed Plaintiff’s only federal claim, it is in the Court’s discretion
whether to retain jurisdiction over the remaining state law claims. Batiste v. Island
Records Inc., 179 F.3d 217, 227 (5th Cir. 1999). Because discovery is complete, the
trial date is approaching, and the remaining claims do not involve any novel or
complex issues of state law, the Court will retain jurisdiction over the state law
claims on grounds of judicial economy. See id.
2.
Plaintiff’s Defamation Claim
Plaintiff contends that Defendants defamed him by publishing to the media
that he had been accused of insurance fraud. Pl.’s Compl. [1] at p. 3. To prevail on
a defamation claim, a plaintiff must show “(1) a false and defamatory statement
concerning the plaintiff; (2) an unprivileged publication to a third party; (3) fault
amounting to at least negligence on the part of the publisher; and (4) either
actionability of the statement irrespective of special harm or the existence of special
harm caused by the publication.” Simmons Law Grp., P.A. v. Corp. Mgmt., Inc., 42
So. 3d 511, 517 (Miss. 2010). The two competing interests a court balances in a
defamation case are those of the plaintiff in protecting his reputation, and the
constitutionally guaranteed First Amendment rights of the publisher. Whitten v.
13
Commercial Dispatch Publ’g Co., 487 So. 2d 843, 844 (Miss. 1986). “[T]ruth is an
absolute defense to a defamation lawsuit in Mississippi.” Journal Publ’g Co. v.
McCullough, 743 So. 2d 352, 360 (Miss. 1999). The plaintiff bears the burden of
proving falsity. Blake v. Gannett Co., Inc., 529 So. 2d 595, 603 (Miss. 1988).
Where a plaintiff is a public figure, he cannot recover damages unless he also
proves that the alleged defamatory statements were made with actual malice – that
is, with knowledge of their falsity or with reckless disregard for whether or not they
were false. Simmons, 42 So. 2d at 517. A person who becomes involved in any
matter of legitimate public interest becomes, in this context, a limited or “vortex”
public figure, and must prove actual malice in order to recover for defamation. Id.
at 517-18. A public figure plaintiff may resist summary judgment only by showing
clear and convincing evidence of actual malice in response to the motion. Johnson
v. Delta-Democrat Publ’g Co., 531 So. 2d 811, 825 (Miss. 1988).
“Evidence of negligence is not sufficient to establish actual malice.”
Simmons, 42 So. 3d at 518. “[R]eliance on information that later is proven untrue
rises only to the level of simple negligence.” Id. at 519. “[A] person’s ill will or
personal spite will not, standing alone, support a finding of actual malice . . . . [T]he
evidence must show that [the defendant] made a false publication with a high
degree of awareness of . . . probable falsity, or must have entertained serious doubts
as to the truth of his publication.” Id. at 518 (citing Franklin v. Thompson, 722 So.
2d 688, 692 (Miss. 1998)). “Opinion statements are actionable only if they clearly
and unmistakably imply the allegation of undisclosed false and defamatory facts as
14
the basis for the opinion.” Ferguson v. Watkins, 448 So. 2d 271, 276 (Miss. 1984).
Plaintiff, in his role as Fire Chief, was a limited public figure, and the alleged
defamatory statements at issue were published while the City was addressing a
matter of public concern. Plaintiff must therefore prove actual malice. The media
reported that Plaintiff was suspended and faced termination after an insurance
audit found that he listed his ex-wife among his dependents on the City’s health
insurance plan. It further reported that Plaintiff’s actions cost the City nearly
$140,000.00 over six years, and that he was being accused of fraud. Plaintiff cannot
meet his summary judgment burden of demonstrating that these statements were
actually false, or that they were made with actual malice.
The City’s fraud allegation was based on disclosed information, which was
itself true; namely, the results of the insurance audit. Plaintiff does not dispute the
findings of the audit. Therefore, he cannot prove that the facts underlying the
City’s allegations were false. Even if he could prove that he did not have the
requisite intent to commit fraud, Plaintiff has not offered clear and convincing
evidence showing that the City made statements to the media knowing that those
statements were false, or with serious doubts about their truthfulness. Though
there is evidence in the record that Plaintiff and Runnels had disagreements at
work prior to Plaintiff’s termination, the existence of a personal grudge, without
more, does not rise to the level of actual malice. Dep. of Tommy Fortenberry [36-6]
at pp. 53-60, 65, 77; Dep. of Michael Gray [36-2] at p. 107. Plaintiff has not offered
clear and convincing proof that the City made statements knowing them to be false,
15
or with reckless disregard for their truth or falsity. His defamation claim cannot
withstand summary judgment.
3.
Plaintiff’s Malicious Interference with Employment Claim
Plaintiff alleges that Runnels is liable to him “for malicious interference with
employment based upon his demonstrated personal vindictiveness towards Plaintiff
leading to . . . defamatory statements being distributed about Plaintiff, as well as
selective enforcement of City policies and procedures.” Pl.’s Compl. [1] at p. 3.
Plaintiff cannot prevail on a malicious interference claim for two reasons.
First, the Mississippi Torts Claims Act, MISS. CODE ANN. § 11-46-1, et seq. (MTCA),
requires a plaintiff to submit a notice of claim before filing a tort claim such as this
against a municipal entity. Miss. Code Ann. § 11-46-11(1); Whiting v. Univ. of S.
Mississippi, 62 So. 3d 907, 915-16 (Miss. 2011). Defendants raise this procedural
bar in their Motion for Summary Judgment, and Plaintiff has not offered proof in
connection with his Response that he complied with the MTCA’s notice provision.
For this reason, Plaintiff’s malicious interference claim should be dismissed. Even
absent the procedural bar, Plaintiff could not prevail because he has not alleged
that a third party deliberately interfered with his employment relationship.
Nichols v. Tri-State Brick and Tile Co., Inc., 608 So. 2d 324, 328 (Miss. 1992).
Runnels was the City Manager, and not a third-party to Plaintiff’s employment
relationship with the City.
16
4.
Plaintiff’s Breach of Implied Contract and Promissory Estoppel Claims
Plaintiff also advances claims for breach of implied contract and promissory
estoppel. Pl.’s Compl. [1] at p. 1. He asserts that the City should be bound by
Burlison’s alleged statement to him that it was acceptable to add Ava as a spousal
beneficiary on the health insurance policy. Id. Plaintiff cannot prevail on these
claims as a matter of law.
The “minutes are the only evidence of the official actions of a municipality.”
JLG Concrete Products Co., Inc. v. City of Grenada, 722 So. 2d 1283, 1285 (Miss. Ct.
App. 1998). A contract must appear in the official minutes of the municipality in
order to be enforceable against the municipality. See Bruner v. Univ. of S.
Mississippi, 501 So. 2d 1113, 1115 (Miss. 1987). Plaintiff’s argument that the Court
should bind the City because of Burlison’s alleged statement fails for this reason.
Even assuming that Burlison made the statement Plaintiff attributes to her, she
had no authority to form a contract with Plaintiff which altered the terms of the
City’s health insurance plan.
Plaintiff signed a form when he added Ava to his insurance policy in 2003,
and warranted that “all statements made herein are complete and true.” Request
for Change Form [36-4], Ex. 3 to CSC Hearing Tr. [36-3]. He affirmed that he
“underst[ood] the coverage applied for is subject to all exclusions and limitations set
forth in the Benefit Plan . . . .” Id. By his signature, Plaintiff acknowledged that he
understood the plan, including the provision that only spouses who were legally
married to City employees could be added. Plan Document [36-4] at p. 4. He also
17
represented by his signature that he was aware of the provision on the first page of
the plan document, which provided that “[n]o oral interpretations can change this
Plan.” Id. at p. 1. To the extent that Plaintiff claims he relied on Burlison’s alleged
representation, such reliance was unjustifiable and unreasonable as a matter of
law. Plaintiff’s estoppel and implied contract claims should likewise be dismissed.
C.
Plaintiff’s Motion for Summary Judgment
Defendant filed seven counterclaims against Plaintiff, alleging: (1) fraud; (2)
fraudulent inducement; (3) breach of contract; (4) tortious breach of contract; (5)
breach of duty of good faith and fair dealing; (6) unjust enrichment; and (7)
negligence. Defs.’ Answer and Countercls. [8] at pp. 4-9. Plaintiff has filed a
Motion for Summary Judgment [36], requesting that the counterclaims be
dismissed. He argues that there is no competent evidence that he committed fraud,
made misrepresentations, or committed any other wrongdoing. Pl.’s Mem. in Supp.
of Summ. J. [37] at p. 8; Pl.’s Reply [45] at p. 4. Plaintiff has only offered briefing
on his fraud and fraudulent inducement claims. Based on the record, Plaintiff has
not carried his initial summary judgment burden of demonstrating that there are
no material fact questions, or that he is entitled to judgment as a matter of law on
Defendants’ counterclaims. The Court finds that Defendants have presented
significant probative evidence to support their counterclaims. Plaintiff’s Motion
should be denied, and Defendants’ counterclaims should proceed to trial.
18
III. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment [34]
should be granted, and Plaintiff’s Motion for Summary Judgment [36] should be
denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Motion for
Summary Judgment [34] of Defendants the City of Gautier, Mississippi, its Mayor
Tommy Fortenberry, and former City Manager, Sidney Runnels is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion for
Summary Judgment [36] of Plaintiff Michael Gray is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff’s claims
against Defendants are dismissed with prejudice.
SO ORDERED AND ADJUDGED, this the 7th day of September, 2012.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?