Dearman v. Stone County School District et al
Filing
30
MEMORANDUM OPINION AND ORDER granting in part and denying in part Dr. Gwen Miller's Motion 23 to Dismiss All Claims Against Individual Defendant Gwen Miller. Signed by District Judge Halil S. Ozerden on 3/21/2014 (HM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
KRISTI DEARMAN
v.
PLAINTIFF
Civil No. 1:13-cv-267-HSO-RHW
STONE COUNTY SCHOOL DISTRICT, and
GWEN MILLER, individually
DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DR. GWEN MILLER’S MOTION TO DISMISS ALL
CLAIMS AGAINST INDIVIDUAL DEFENDANT GWEN MILLER
BEFORE THE COURT is the Motion [23] to Dismiss All Claims Against
Individual Defendant Gwen Miller, filed by Defendant Dr. Gwen Miller, the
Superintendent of the Stone County, Mississippi, School District. The Motion has
been fully briefed. After consideration of the parties’ submissions, the record, and
relevant legal authorities, the Court finds that Dr. Miller’s Motion [23] should be
granted in part and denied in part. Plaintiff Kristi Dearman’s individual capacity
claims against Dr. Miller for First Amendment retaliation, violation of procedural
due process under the Fourteenth Amendment, and malicious interference with
employment should not be dismissed on summary judgment. Ms. Dearman’s claim
against Dr. Miller individually for intentional infliction of emotional distress should
be dismissed. No claim for defamation will proceed because Ms. Dearman did not
adequately plead a defamation claim in her Amended Complaint [15], and to the
extent the Amended Complaint could be construed to assert such a claim, it will be
dismissed.
I. BACKGROUND
In August 2002, Plaintiff Kristi Dearman began working for the Stone County
School District as a special education teacher at Stone County Middle School. Aff. of
Dearman [25-2] at 1; Aff. of Miller [23-1] at 1. From 2003 until 2008, Ms. Dearman
was a Local Survey Committee (“LSC”) case manager and LSC Committee chair. Aff.
of Miller [23-1] at 1. As an LSC case manager, Ms. Dearman was authorized to access
middle school special education students’ records through an online program called
Special Education Automated System (“SEAS”). Aff. of Dearman [25-2] at 1; Aff. of
Miller [23-1] at 1; Def.’s Reply [29] at 3. In SEAS, Ms. Dearman could complete
individual education plans and re-evaluation plans for the special education students
assigned to her. Aff. of Dearman [25-2] at 2. In 2010, Ms. Dearman transferred to
the position of guidance counselor at Stone County Middle School. Aff. of Dearman
[25-2] at 1; Aff. of Miller [23-1] at 1.
In 2011, Stone County Middle School special education teacher Jim
Nightengale ran as a candidate in the election for Superintendent of the Stone
County School District. Aff. of Dearman [25-2] at 1; Am. Compl. [15] at 2. During his
campaign, Mr. Nightengale openly criticized the School District. Defendant Dr.
Miller was a part of the School District’s administration. Aff. of Nightengale [25-1] at
1-2. Ms. Dearman, along with several other teachers, openly supported Mr.
Nightengale’s campaign. Aff. of Dearman [25-2] at 1. Ms. Dearman placed a “Jim
Nightengale” sign in her front yard. Id. According to Ms. Dearman, she was told by
Stone County Middle School’s principal that there could be negative repercussions for
having a Nightengale sign in her yard. Id.
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In November 2011, Mr. Nightengale lost the election for Superintendent to Dr.
Miller. Aff. of Nightengale [25-1] at 1; Aff. of Dearman [25-2] at 2. Dr. Miller took
office in January 2012. Aff. of Dearman [25-2] at 2. In July 2012, Ms. Dearman was
transferred to a guidance counselor position at Stone Elementary School, and Mr.
Nightengale was transferred to Stone County High School to teach “severe/profound
special needs” students. Id.; Aff. of Nightengale [25-1] at 2.
Both Ms. Dearman and Mr. Nightengale refer to their transfers as unilateral
transfers prompted by Dr. Miller, occurring despite their protests that they were not
trained to teach elementary students or “severe/profound special needs” students,
respectively. Pl.’s Resp. [25] at 3; Aff. of Nightengale [25-1]. Ms. Dearman makes the
conclusory allegation in her Affidavit that “[o]ther teachers who supported
Nightengale were also ‘moved’ around.” Aff. of Dearman [25-2] at 2. Ms. Dearman
has not identified these “other teachers.” However, it is undisputed that Mr.
Nightengale was also transferred in July 2012. Aff. of Nightengale [25-1] at 2.
In January 2013, Wendy Rogers, Special Education Director for the Stone
County School District, reported to Dr. Miller that Ms. Dearman was assisting Mr.
Nightengale with evaluation plans for high school special education students. Aff. of
Miller [23-1] at 2; Letter [25-7] at 1. On January 30, 2013, Dr. Miller and Ms. Rogers
met with Ms. Dearman. Ms. Dearman admitted that she had accessed SEAS at the
request of Mr. Nightengale, who needed assistance completing re-evaluation plans for
two high school special education students. Aff. of Miller [23-1] at 2; Aff. of Dearman
[25-2] at 2. According to Dr. Miller, Ms. Dearman, as an elementary school guidance
counselor, was not authorized to view high school special education students’ records
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and doing so violated the two students’ statutorily-protected rights to confidentiality.
Aff. of Miller [23-1] at 2. Ms. Dearman submits that she did not violate the students’
confidentiality because she had completed evaluation plans for the same two students
as an LSC case manager at Stone County Middle School when the students were in
middle school. Aff. of Dearman [25-2] at 2.
Dr. Miller contends that Ms. Dearman had previously been instructed in 2010
“not to complete Jim Nightengale’s work for him,” after it was reported that Ms.
Dearman was completing evaluation plans for Mr. Nightengale. Aff. of Miller [23-1]
at 2. Dr. Miller maintains that Ms. Dearman acknowledged this previous incident
during the January 30, 2013, meeting. Id. Ms. Dearman denies ever being told not to
help Mr. Nightengale and insists that the administration directed Mr. Nightengale to
“ask someone” if he needed help. Aff. of Dearman [25-2] at 2. Ms. Dearman submits
that she was the most qualified to help Mr. Nightengale because she was the LSC
case manager who last evaluated the two special education students in question. Id;
Dearman Letter [25-4]. Ms. Dearman avers in her Affidavit that she also “corrected
information in SEAS” for Ms. Rogers. Aff. of Dearman [25-2] at 2-3. Ms. Dearman
contends that she used Ms. Rogers’ SEAS user name and password, which Ms. Rogers
provided to her, in order to complete this task. Id. Dr. Miller generally questions the
veracity of Ms. Dearman’s allegation regarding Ms. Rogers but has not provided
summary judgment evidence contradicting it. Def.’s Reply [29] at 3.
Dr. Miller has submitted evidence indicating that Ms. Dearman accessed SEAS
again on January 31, 2013, a day after she was told not to do so by Dr. Miller and Ms.
Rogers. Docs. [23-1] at 7-0. Ms. Dearman does not address this evidence in her
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Response and therefore does not dispute that she continued to access SEAS even after
meeting with Dr. Miller and Ms. Rogers on January 30, 2013.
By letters dated February 21, 2013, Dr. Miller notified Ms. Dearman and Mr.
Nightengale that she was recommending their termination to the School Board at its
March 4, 2013, meeting. Miller Letter [23-1] at 11; Miller Letter [29-1] at 34. Dr.
Miller’s letter to Ms. Dearman provided:
The reason for termination is the violation of Federal Law,
FERPA, Federal Special Education Law: Individuals with
Disabilities Education Act (IDEA), Federal and State
Regulations: Procedural Safeguards Requirements under the
Individuals with Disabilities Education Act Amendments of
2004 Section 612, Section 617, 34 CFR Parts 300 123, 300
610, 300 611, 300 612, 300 613, 300 614, 300 616, 300 618,
and 300 623, and the Stone County School District Board
Policy – IDDF/Special Education Programs[.]
You violated a special education student’s confidentiality by
accepting an original IEP and re-evaluation from a high
school special education teacher[.] You also utilized that
teacher’s username and password, which was provided to you,
to access the student’s personal identifiable data in the SEAS
program in order to modify the re-evaluation. You have also
accessed another student’s confidential information by
editing information in SEAS[.]
Miller Letter [23-1] at 11.
Ms. Dearman requested a hearing on her proposed termination, and one was
held at the School Board’s meeting on March 4, 2013. Am. Compl. [15] at 4; Aff. of
Dearman [25-2] at 2. The School Board did not immediately render a decision, and
Ms. Dearman filed this lawsuit on April 30, 2013. In May 2013, Ms. Dearman was
notified that the School Board was not pursuing termination but would instead
proceed with nonrenewal of her teaching contract. Miller Letter [23-1] at 12;
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Courtney Letter [15-2]. The stated reason for nonrenwal was Ms. Dearman’s
purported violation of special education students’ confidentiality. Miller Letter [23-1]
at 12.
A School Board hearing on the proposed nonrenewal of Ms. Dearman’s
teaching contract was scheduled to occur on June 4, 2013. Id. On May 20, 2013, and
upon her request, Ms. Dearman timely received the statutorily-required specific
reasons for nonreemployment and supporting documents from the School District.
Am. Compl. [15] at 5; Keith Letter [15-4]; see Miss. Code Ann. § 37-9-109. In order for
the hearing to proceed, Ms. Dearman was required to provide the School District “not
less than five (5) days before the scheduled date for the hearing, a response to the
specific reasons for nonreemployment, a list of witnesses and a copy of documentary
evidence intended to be presented at the hearing.” Miss. Code Ann. § 37-9-109.
Under the foregoing statute, a failure to provide a response would render “the
recommendation of nonreemployment . . . final without the necessity of a hearing.”
Id.
Ms. Dearman’s counsel maintains that on May 28, 2013, he mailed Ms.
Dearman’s response to the specific reasons for nonreemployment to Dr. Miller at her
School District address. Aff. of Waide [25-3]; Waide Letter [15-3]. According to Dr.
Miller, neither she, the School District, nor its counsel received Ms. Dearman’s
response. Def.’s Mem. [24] at 10; Def.’s Reply [29] at 12; Keith Letter [15-4]. By
letter dated June 3, 2013, the School District, through counsel, informed Ms.
Dearman’s counsel that the June 4, 2013, hearing would not proceed because Ms.
Dearman had not provided a response to the School District’s specific reasons for
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nonreemployment. Keith Letter [15-4]. The School District refused Ms. Dearman’s
counsel’s request for a continuance of the hearing and his offer to resubmit Ms.
Dearman’s response. Aff. of Waide [25-3] at 1. A School Board hearing on Mr.
Nightengale’s proposed termination began on July 19, 2013, but was not completed.
Aff. of Miller [29-1] at 3-4. The Court has not been advised of the status of the
hearing.
On June 18, 2013, Ms. Dearman filed an Amended Complaint in this case
asserting claims against the Stone County School District and Dr. Miller,
individually. Ms. Dearman alleges that her “loss of employment was a result of [her]
exercising her First Amendment rights and openly supporting Nightengale in the
Stone County Superintendent race.” Am. Compl. [15] at 4. Ms. Dearman contends
that the lack of a hearing on the nonrenewal of her teaching contract “constitutes a
deprivation of [her] constitutional right to due process under the 14th Amendment
and the Mississippi Code.” Id. at 5. Ms. Dearman also advances state law claims
against Dr. Miller, individually, for malicious interference with employment and
intentional infliction of emotional distress. Id. at 6.
On July 25, 2013, Dr. Miller filed the instant Motion [23] to Dismiss All Claims
Against Individual Defendant Gwen Miller, asserting as grounds qualified immunity
and immunities provided by the Mississippi Torts Claims Act (“MTCA”), Mississippi
Code §11-46-1, et seq. Dr. Miller and Ms. Dearman advised the assigned United
States Magistrate Judge that no discovery pertaining to Dr. Millers’s Motion was
necessary. August 14, 2013 Minute Entry.
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II. DISCUSSION
A.
Summary Judgment Standard
While Dr. Miller styles her Motion [23] as a Motion to Dismiss, her Motion
seeks relief pursuant to Federal Rule of Civil Procedure 56. Dr. Miller has supplied
numerous documents in support of her Motion. Def.’s Mem. [24] at 1. Ms. Dearman
has also supplied numerous exhibits in response to Dr. Miller’s Motion. For this
reason, the standard of review for summary judgment will be applied. Fed. R. Civ. P.
56(d).
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). “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 v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)(citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). 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)).
In reviewing the evidence, factual controversies are to be resolved in favor of
the nonmovant, “but only when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp.,
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37 F.3d 1069, 1075 (5th Cir. 1994)(en banc). The Court does not “in the absence of
any proof, assume that the nonmoving party could or would prove the necessary
facts.” Id. 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, 232 F.3d at 477. “[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).
B.
Ms. Dearman’s Federal Constitutional Claims and Qualified Immunity
1.
Qualified Immunity Standard
The Fifth Circuit Court of Appeals recently summarized the “clearly drawn
bright lines” and “rigorous background principles” of qualified immunity:
[E]valuating qualified immunity is a two-step process, and
the burden is on the plaintiff to prove that a government
official is not entitled to qualified immunity. First, we
determine whether the plaintiff has alleged a violation of a
clearly established constitutional or statutory right. A right
is clearly established only if its contours are sufficiently clear
that a reasonable official would understand that what he is
doing violates that right. The applicable law that binds the
conduct of officeholders must be clearly established at the
time the allegedly actionable conduct occurs. If the first step
is met (i.e. the official’s conduct violates an established right),
the second step is to determine whether the defendant’s
conduct was objectively unreasonable. Both steps in the
qualified immunity analysis are questions of law.
Under the Fifth Circuit standard, the doctrine of qualified
immunity protects government officials from civil damages
liability when they reasonably could have believed that their
conduct was not barred by law, and immunity is not denied
unless existing precedent places the constitutional question
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beyond debate. . . .
When deciding whether the right allegedly violated was
clearly established, the court asks whether the law so clearly
and unambiguously prohibited the conduct that every
reasonable official would understand that what he is doing
violates the law. Answering in the affirmative requires the
court to be able to point to controlling authority – or a robust
consensus of persuasive authority – that defines the contours
of the right in question with a high degree of particularity.
This requirement establishes a high bar. When there is no
controlling authority specifically prohibiting a defendant’s
conduct, the law is not clearly established for the purposes of
defeating qualified immunity.
Wyatt v. Fletcher, 718 F.3d 496, 502-03 (5th Cir. 2013)(internal citations and
quotations omitted).
2.
Ms. Dearman’s Due Process Claim Against Dr. Miller
The Mississippi Code prohibits the arbitrary dismissal of school teachers
covered by the Public Education Title of the Mississippi Code, Mississippi Code
section 37-1-1, et seq. McDonald v. Mims, 577 F.2d 951, 952 (5th Cir. 1978). “This
protection alone, under Mississippi decisional law, creates a protectable property
interest.” Id. Viewing the alleged facts in the light most favorable to Ms. Dearman,
the Court finds that a genuine issue of material fact exists regarding whether Ms.
Dearman complied with the notice provisions of section 37-9-109 and whether the
School District’s decision not to afford Ms. Dearman a hearing on the nonrenewal of
her teaching contract violated the essential requirements of procedural due process.
Ms. Dearman’s counsel attests that he timely mailed Ms. Dearman’s response to the
specific reasons for nonreemployment to Dr. Miller. Dr. Miller avers that she did not
receive the response. The conflicting evidence on this issue presents a fact question
and makes summary dismissal of Ms. Dearman’s due process claim inappropriate at
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this juncture of the proceedings. Haverda v. Hays Cty., 723 F.3d 586, 590 (5th Cir.
2013); Swindle v. Livingston Parish Sch. Bd., 655 F.3d 386, 401-02 (5th Cir. 2011).
Dr. Miller may again raise the defense of qualified immunity at a later stage.
Swindle, 655 F.3d at 402. The portion of Dr. Miller’s Motion requesting summary
judgment on Ms. Dearman’s Fourteenth Amendment procedural due process claim
should be denied at this time.
3.
Ms. Dearman’s First Amendment Claim Against Dr. Miller
“Terminating an employee for engaging in protected speech . . . is an
objectively unreasonable violation of an employee’s First Amendment rights . . . .”
Charles v. Grief, 522 F.3d 508, 511 (5th Cir. 2008). To prevail on her First
Amendment claim, Ms. Dearman must demonstrate that (1) she suffered an adverse
employment decision; (2) her speech involved a matter of public concern; (3) her
interest in commenting on the matter of public concern outweighed the defendant’s
interest in promoting efficiency; and (4) her speech was a substantial or motivating
factor in the defendant’s adverse employment decision. Harris v. Victoria Indep. Sch.
Dist., 168 F.3d 216, 220 (5th Cir. 1999).
“Summary judgment should be used ‘most sparingly in . . . First Amendment
case[s] . . . involving delicate constitutional rights, complex fact situations, disputed
testimony, and questionable credibilities.’” Beattie v. Madison Co. Sch. Dist., 254
F.3d 595, 600 (5th Cir. 2001)(quoting Benningfield v. City of Houston, 157 F.3d 369,
377 (5th Cir. 1998)). “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 disposition inappropriate.” Click v.
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Copeland, 970 F.2d 106, 113 (5th Cir. 1992)(citation omitted).
Dr. Miller’s Motion focuses only on the causation element of a First
Amendment claim. Dr. Miller asserts that “it is clear from the facts in this case that
the defendant’s sole reason for the employment action taken against the plaintiff was
the unauthorized access to confidential student information obtained by the plaintiff.”
Def.’s Mem. [24] at 6. “[P]laintiff had been warned not to pursue this course of action
yet she continued to do so.” Id. Ms. Dearman responds that she has offered evidence
of pretext, namely evidence that another employee committed the same offense and
was not reprimanded, as well as a “chain of circumstances and events that would
ultimately permit a jury to infer that the Defendants retaliated because of Dearman’s
political support for Nightengale in the superintendent election.” Pl.’s Resp. [25] at
10. Ms. Dearman has cited caselaw supporting her position that a jury question
exists as to causation. Id. at 8-9. In rebuttal, Dr. Miller contends that “there is no
close temporal proximity . . . sufficient to create an inference of causation.” Def.’s
Reply [29] at 3. Dr. Miller has not referenced any caselaw or offered briefing on the
issue of temporal proximity. Furthermore, “the First Amendment can protect against
distant retaliation.” Jordan v. Ector Co., 516 F.3d 290, 300 (5th Cir. 2008).
If Ms. Rogers committed the same offense that Ms. Dearman committed but
was not reprimanded, a jury could determine that the nonrenewal of Ms. Dearman’s
teaching contract was at least partially motivated by her support for Mr. Nightengale
in the Superintendent race.
However plausible, even compelling, the proferred
justifications for [not renewing Ms. Dearman’s teaching
contract] sound in isolation, the evidence that [Ms. Rogers]
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engaged in conduct similar to [Ms. Dearman’s] without being
disciplined is sufficient for a reasonable jury to conclude that
[Dr. Miller] would not have taken the same action in the
absence of the protected conduct.
Id. at 301.1 Dr. Miller is not entitled to qualified immunity at this stage of the
proceedings, and the portion of her Motion requesting dismissal of Ms. Dearman’s
First Amendment claim should be denied.
C.
Ms. Dearman’s State Law Claims Against Dr. Miller
Ms. Dearman’s Amended Complaint advances claims against Dr. Miller
individually for “[m]alicious interference with employment” and intentional infliction
of emotional distress. Am. Compl. [15] at 6. Dr. Miller submits that these claims
should be dismissed because (1) Ms. Dearman did not file a notice of claim prior to
suit as required by the MTCA; and (2) Dr. Miller was acting within the course and
scope of her employment as Stone County School District Superintendent at all
relevant times. Def.’s Mem. [24] at 9-10. The MTCA generally provides that
employees of a governmental entity who act within the course and scope of
employment are not personally liable for injuries arising from their acts or omissions.
Miss. Code Ann. § 11-46-7(2).
1
Dr. Miller argues for the first time in her Reply that Ms. Dearman has offered
no proof that Dr. Miller knew that Ms. Dearman supported Mr. Nightengale in the
Superintendent race. The Court has not considered this assertion in rendering its
decision because “[i]t is the practice of [the Fifth Circuit Court of Appeals] and the
district courts to refuse to consider arguments raised for the first time in reply briefs.”
Gillapsy v. Dallas Indep. Sch. Dist., No. 06-11204, 278 F. App’x 307, 315 (5th Cir.
May 13, 2008).
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1.
Malicious Interference with Employment
Ms. Dearman did not submit a MTCA notice of claim before instituting this
suit. She asserts that presuit notice is not required for a malicious interference with
employment claim because torts which require proof of malice fall outside the scope of
the MTCA. See Miss Code Ann. § 11-46-5(2). Under the MTCA,
an employee shall not be considered as acting within the
course and scope of employment and a governmental entity
shall not be liable or be considered to have waived immunity
for any conduct of its employee if the employee’s conduct
constituted fraud, malice, libel, slander, defamation or any
criminal offense other than traffic violations.
Id.
Ms. Dearman relies on Zumwalt v. Jones Co. Bd. of Supervisors, where the
Mississippi Supreme Court held that the MTCA does not apply to claims for “tortious
interference with business relations and/or contracts” because these claims require
proof of malice as an essential element. 19 So. 3d 672, 688 (Miss. 2009). Because
malice is an essential element of such claims, they can only be advanced against an
employee individually; a governmental entity is immune from claims requiring proof
of malice. Id.
In evaluating the Zumwalt decision, the Fifth Circuit Court of Appeals has
found that more recent Mississippi Supreme precedent contradicts Zumwalt “on the
question of whether a plaintiff alleging malicious interference by a public employee
must satisfy the notice requirements of § 11-46-11 of the MTCA.” Johnson v. City of
Shelby, Miss., No. 12-60735, 2013 WL 6069438, *3 (5th Cir. Nov. 19,
2013)(referencing Whiting v. Univ. of S. Miss., 62 So. 3d 907 (Miss. 2011)). Dr. Miller,
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however, does not address Zumwalt in rebuttal or attempt to distinguish it, and for
this reason, the Court will not dismiss Ms. Dearman’s malicious interference with
employment claim at this point on grounds that MTCA presuit notice was not given.
“[A] claim for tortious interference with at-will contracts of employment is [a]
viable claim” in Mississippi.” Levens v. Campbell, 733 So. 2d 753, 760 (Miss. 1999).
To prevail, a plaintiff must prove (1) the defendant’s acts were intentional and willful;
(2) calculated to cause damage to plaintiff in her lawful business; (3) done with the
unlawful purpose of causing damage and loss, without right or justifiable cause on
the part of the defendant; and (4) actual loss occurred. Id. at 760-61. “[O]ne
occupying a position of responsibility on behalf of another is privileged, within the
scope of that responsibility and absent bad faith, to interfere with his principal’s
contractual relationship with a third person.” Shaw v. Burchfield, 481 So. 2d 247,
255 (Miss. 1985). The bad faith exception to the privilege is “namely, that when an
intentional act occurs whose purpose is to cause injury to business without right or
good cause, then there is malice.” Morrison v. Miss. Enterp. for Tech., Inc., 798 So. 2d
567, 575-76 (Miss. Ct. App. 2001)(emphasis supplied).
A jury could conclude “from the facts that an employment relationship was
formed [between Ms. Dearman and the School District], or at the very least
contemplated to the extent that a third party could tortiously interfere.” Levens, 733
So. 2d at 761. As Superintendent, Dr. Miller has authority “[t]o enter into contracts
in the manner provided by law with each . . . teacher of the public schools under his
supervision . . . .” Miss. Code Ann. § 37-9-14(2)(a). Dr. Miller’s actions within the
scope of this authority are privileged unless taken in bad faith. Levens, 733 So. 2d at
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761; Morrison, 798 So. 2d at 575. Ms. Dearman alleges that circumstantial evidence
in the record supports the conclusion that Dr. Miller’s conduct amounted to bad faith.
Pl.’s Resp. [25] at 13.
“[B]ad faith raises an issue of motive. It is not necessary for direct evidence to
exist, such as an admission by the defendant that he acted in bad faith. Instead, such
a conclusion generally arises as an inference from other evidence.” Morrison, 798 So.
2d at 575. The Court is of the opinion that the determination of whether Dr. Miller
acted in bad faith and “without right or justifiable cause” presents a fact issue.
Haverda, 723 F.3d at 599; Stephen v. Winston Co., Miss., No. 1:07cv118-SA-JAD,
2008 WL 4813829, *9 (N.D. Miss. Nov. 4, 2008); Crabb v. Itawamba Co., Miss., No.
1:04cv138-P-D, 2005 WL 2648017 (N.D. Miss. Oct. 17, 2005). The portion of Dr.
Miller’s Motion requesting dismissal of Ms. Dearman’s malicious interference with
employment claim should be denied.
2.
Intentional Infliction of Emotional Distress
Ms. Dearman’s intentional infliction of emotional distress claim against Dr.
Miller, however, should be dismissed. Dr. Miller asserts that this claim is not
excepted from MTCA presuit notice requirements. Ms. Dearman has not responded
to this argument and therefore has not carried her summary judgment burden of
demonstrating that this claim should proceed. “A party who inadequately briefs an
issue is considered to have abandoned the claim.” Cinel v. Connick, 15 F.3d 1338,
1345 (5th Cir. 1994). Furthermore, there is no evidence in the record that Dr. Miller’s
conduct was “so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as utterly intolerable in a civilized
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community.” Speed v. Scott, 787 So. 2d 626, 630 (Miss. 2001). “Only in the most
unusual cases does the conduct move out of the realm of an ordinary employment
dispute into the classification of extreme and outrageous, as required for the tort of
intentional infliction of emotional distress.” Brown v. Inter-City Fed. Bank for Sav.,
738 So. 2d 262, 265 (Miss. Ct. App. 1999)(citations omitted). The portion of Dr.
Miller’s Motion requesting dismissal of Ms. Dearman’s claim for intentional infliction
of emotional distress should be granted.
3.
Defamation
In her Response, Ms. Dearman submits that she pleaded a claim for
defamation in her Amended Complaint, which should proceed because Dr. Miller did
not request dismissal of this claim in her Motion. Pl.’s Resp. [25] at 18. In Reply [29],
Dr. Miller maintains that Ms. Dearman did not adequately plead defamation in her
Amended Complaint. Def.’s Reply [29] at 14-15. “[A] complaint for defamation must
provide allegations of sufficient particularity so as to give the defendant or
defendants notice of the nature of the complained-of statements.” Chalk v. Bertholf,
980 So. 2d 290, 297 (Miss. Ct. App. 2007). The Court has thoroughly reviewed Ms.
Dearman’s Amended Complaint and found no reference to defamation or factual
allegations of sufficient particularity that would provide Dr. Miller notice that Ms.
Dearman was advancing a claim for defamation. Ms. Dearman has not met the
requirements of Mississippi law and Federal Rule of Civil Procedure 8(a)(2) for
pleading defamation. To the extent the Amended Complaint could ever be construed
to advance a defamation claim, it should be dismissed.
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III. CONCLUSION
For the foregoing reasons, Ms. Dearman’s claims against Dr. Miller
individually for retaliation under the First Amendment, violation of procedural due
process under the Fourteenth Amendment, and malicious interference with
employment will not be dismissed on summary judgment on the basis of qualified
immunity. Ms. Dearman’s claim against Dr. Miller for intentional infliction of
emotional distress will be dismissed. Ms. Dearman’s purported claim for defamation
against Dr. Miller will not proceed because it was not adequately pleaded.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendant Dr.
Gwen Miller’s Motion [23] to Dismiss All Claims Against Individual Defendant Gwen
Miller is GRANTED IN PART AND DENIED IN PART. Three claims will proceed
against Dr. Miller individually, namely Plaintiff Kristi Dearman’s claims for
retaliation under the First Amendment, violation of procedural due process under the
Fourteenth Amendment, and malicious interference with employment. Ms.
Dearman’s claim against Dr. Miller individually for intentional infliction of emotional
distress is DISMISSED. Ms. Dearman did not adequately plead a claim for
defamation, and accordingly, no claim for defamation will proceed. To the extent the
Amended Complaint could be construed to raise a defamation claim, it is
DISMISSED.
SO ORDERED AND ADJUDGED, this the 21st day of March, 2014.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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