Seibert v. Jackson County, Mississippi et al

Filing 83

MEMORANDUM OPINION AND ORDER granting in part and denying in part 62 Motion for Summary Judgment; granting in part and denying in part 64 Motion for Summary Judgment. Signed by District Judge Keith Starrett on 8/5/2015 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
KRISTAN SEIBERT

PLAINTIFF

V.

CIVIL ACTION NO. 1:14-CV-188-KS-MTP

JACKSON COUNTY, MISSISSIPPI, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
For the reasons below, the Court grants in part and denies in part
Defendants’ Motions for Summary Judgment [62, 64].
I. BACKGROUND
This is a sexual harassment case. Plaintiff is a deputy in the Jackson County
Sheriff’s Department. She alleges that the County’s former Sheriff, Michael Byrd,
sexually harassed her for months. Specifically, she claims that Byrd began making
unwanted sexual advances toward her in 2012, including touching of intimate body
parts, lewd comments, and repeated requests for her to have sex with him. She alleges
that Byrd threatened to demote her if she did not comply with his requests. According
to Plaintiff, this behavior occurred on a near-daily basis for months.
Plaintiff filed this suit against Byrd in his individual and official capacities and
Jackson County, Mississippi. She asserted claims under Title VII, Section 1983, and
state law. Both Defendants filed Motions for Summary Judgment [62, 64], which the
Court is prepared to address.
II. STANDARD OF REVIEW
Rule 56 provides that “[t]he court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Sierra Club, Inc.
v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). “An issue is
material if its resolution could affect the outcome of the action.” Sierra Club, Inc., 627
F.3d at 138. “An issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to
return a verdict for the nonmoving party.” Cuadra v. Houston Indep. Sch. Dist., 626
F.3d 808, 812 (5th Cir. 2010).
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inference
to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra
Club, Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue
for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
III. DEFENDANT BYRD’S MOTION FOR SUMMARY JUDGMENT [64]
A.

Title VII
1.

Title VII “Employer”

First, Defendant Byrd argues that, in his individual capacity, he is not Plaintiff’s
“employer” for Title VII purposes. “An ‘employer’ under Title VII is a ‘person in an
industry affecting commerce who has fifteen or more employees . . . .’” Oden v.
Oktibbeha County, 246 F.3d 458, 465 (5th Cir. 2001) (quoting 42 U.S.C. § 2000e(b)).
2

This definition “includes one or more individuals, governments, governmental agencies,
[or] political subdivisions . . . .” 42 U.S.C. § 2000e(a). Accordingly, a supervisor may be
“considered an ‘employer’ under Title VII if he wields the employer’s traditional rights,
such as hiring and firing.” Huckabay v. Moore, 142 F.3d 233, 241 (5th Cir. 1998).
However, if Defendant Byrd exercises such power as a public official, it “is necessarily
exercised . . . by a person who acts as an agent of the corporate or municipal body he
represents. Because the wrongful acts are performed in his official capacity, any
recovery . . . must be against him in that capacity, not individually.” Id.1 Therefore,
Defendant Byrd can not be liable under in his individual capacity under Title VII.
2.

Sexual Harassment – Quid Pro Quo

“To establish a Title VII quid pro quo claim, a plaintiff must show that the
acceptance or rejection of a supervisor’s alleged sexual harassment resulted in a
tangible employment action.” Alaniz v. Zamora-Quezada, 591 F.3d 761, 772 (5th Cir.
2009). Defendant Byrd argues that Plaintiff suffered no tangible employment action.2

1

See also Oden, 246 F.3d at 464-65; Lewis v. Hardy, 248 F. App’x 589, 592-93
(5th Cir. 2007); Cutrer v. McMillin, No. 3:07-CV-701-TSL-JCS, 2008 U.S. Dist.
LEXIS 53393, at *3-*4 (S.D. Miss. July 14, 2008); Jordan v. Miss. State Dep’t of
Health, No. 3:06-CV-233-WHB-LRA, 2007 U.S. Dist. LEXIS 60317, at *9-*11 (S.D.
Miss. Aug. 16, 2007); Broussard v. Lafayette Consol. Gov’t, 45 F. Supp. 3d 553, 579
(W.D. La. 2014); Gallentine v. Hous. Auth., 919 F. Supp. 2d 787, 796 (E.D. Tex.
2013).
2

In his reply brief, Byrd also argued that Plaintiff provided no evidence of a
causal connection between the alleged employment actions and her rejection of his
alleged sexual advances. The Court does “not consider arguments raised for the first
time in a reply brief . . . .” United States v. Transocean Deepwater Drilling, Inc., 767
F.3d 485, 492 (5th Cir. 2014).
3

In response, Plaintiff contends that Byrd removed her from the “Explorers” program,
transferred her from Pascagoula to the sub-station in Ocean Springs, and threatened
to demote or fire her.
“A tangible employment action constitutes a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.” Id. “A
tangible employment action in most cases inflicts direct economic harm.” Faragher v.
City of Boca Raton, 524 U.S. 775, 790-91, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998).
“Where . . . lateral reassignment constitutes the claimed adverse employment
action, the surrounding circumstances are considered.” Vicknair v. La. Dep’t of Pub.
Safety & Corr., 555 F. App’x 325, 331 (5th Cir. 2014). The Court should consider factors
such as a reduction in salary, a loss of standing with fellow employees, a decrease in
benefits, loss of prestige, and decreased responsibilities. Id. An “undesirable
reassignment” may constitute a “tangible employment action” in this context,
Burlington Indus. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 141 L. Ed. 2d 633
(1998), but the plaintiff must present evidence that the prior position “was objectively
superior so that . . . reassignment could be considered a demotion.” Alaniz, 591 F.3d
at 772-73.
First, threats of termination or demotion are not tangible employment actions
and, therefore, are not actionable as a quid pro quo claim. See Ellerth, 524 U.S. at
760–66; Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 268-69 (5th Cir. 1998); Ross
v. Wald Moving & Storage Servs., No. 98-21046, 1999 U.S. App. LEXIS 39811, at *114

*12 (5th Cir. Aug. 16, 1999).
Next, Plaintiff admits that she did not suffer a decrease in salary or benefits
when Defendant Byrd transferred her to the Ocean Springs sub-station. Likewise, she
provided no evidence that the transfer altered her duties, or that Ocean Springs is a
less desirable or prestigious duty station. Therefore, she provided no evidence that the
transfer was a “tangible employment action.” See Alaniz, 591 F.3d at 772-73 (where
plaintiff was reassigned but her salary, benefits, and duties remained unchanged, and
she presented no evidence that the former position was “objectively superior” to the
new one, she suffered no tangible employment action); Watts v. Kroger Co., 170 F.3d
505, 510 (5th Cir. 1999) (expanding an employee’s duties to include extra work was not
a “tangible employment action”); Williams v. Barnhill’s Buffet Inc., 290 F. App’x 759,
762 (where waitress was assigned to “bad part” of restaurant and required to wash a
wall where servers dumped food, there was no tangible employment action). Likewise,
Plaintiff provided no evidence indicating that her removal from the “Explorers”
program resulted in “significantly different responsibilities” or could objectively “be
considered a demotion.” Alaniz, 591 F.3d at 772-73.
For these reasons, the Court finds that Plaintiff presented no evidence of a
“tangible employment action” as contemplated by the Fifth Circuit’s quid pro quo
jurisprudence.
3.

Sexual Harassment – Hostile Work Environment

“A hostile work environment exists when the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive
5

to alter the conditions of the victim’s employment and create an abusive working
environment.” Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 328 (5th Cir. 2009).
Where, as here, “the claim of harassment is against a supervisor, proving a hostile
working environment requires four elements: (1) that the employee belongs to a
protected class; (2) that the employee was subject to unwelcome sexual harassment;
(3) that the harassment was based on sex; and (4) that the harassment affected a term
condition, or privilege of employment.” Id. at 330 (punctuation omitted). Defendant
Byrd argues that Plaintiff can not prove the second, third, and fourth elements.
a.

Unwelcome Sexual Harassment

Plaintiff broadly testified that Defendant Byrd “always made comments,” that
“numerous incidents happened,” and that Byrd made comments to her “on a daily basis
. . . .” More specifically, she testified that in September 2012, Byrd “got right up in [her]
face” where she “could feel his breath” and said, “You know you want to kiss me.” She
also testified that, on another occasion, he “rub[bed] his hand all the way up [her] inner
thigh” and said “he wanted to ‘taste her p—y.’” Plaintiff alleges that Defendant Byrd
responded to her rejections of his advances by saying “I gave you sergeant and I can
take it away.” She testified that Byrd’s behavior “disgusted” her, that she would hide
from him, and that his advances and implicit threats caused her a significant amount
of emotional pain. This testimony is sufficient to create a genuine factual dispute as
to the second element of a hostile work environment claim. Id.; Lauderdale v. Tex.
Dep’t of Crim. Justice, 512 F.3d 157, 163 (5th Cir. 2007) (second element satisfied by
“discourteous conduct of a sexual nature”); Jones v. Flagship Int’l, 793 F.2d 714, 720
6

(5th Cir. 1986) (“sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature that is unwelcome in the sense it is unsolicited or
unincited and is undesirable or offensive to the employee”).
b.

Based on Sex

The testimony cited above is also sufficient to create a genuine factual dispute
as to whether the alleged harassment was “based on sex.” Stewart, 586 F.3d at 330.
c.

Severe or Pervasive

“To affect a term, condition, or privilege of employment, sexual harassment must
be sufficiently severe or pervasive so as to alter the conditions of employment and
create an abusive working environment.” Id. “The harassment must consist of more
than simple teasing, offhand comments, and isolated incidents (unless extremely
serious). Relevant factors are the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.” Royal v.
CCC&R Tres Arboles, LLC, 736 F.3d 396, 401 (5th Cir. 2013). The “conduct must be
both objectively offensive, meaning that a reasonable person would find it hostile and
abusive, and subjectively offensive, meaning that the victim perceives it to be so.”
Stewart, 586 F.3d at 330. The Court should consider the “totality of the circumstances,”
including “previous conduct to illuminate currently actionable issues . . . .” Id. at 33031.
As noted above, Plaintiff testified that Defendant Byrd made harassing
comments to her “on a daily basis . . . ” for months. She specifically testified that on one
7

occasion he“got right up in [her] face” where she “could feel his breath” and said, “You
know you want to kiss me.” On another occasion, he allegedly “rub[bed] his hand all
the way up [her] inner thigh” and said “he wanted to ‘taste her p—y.’” These events
allegedly occurred when they were alone, and she testified that he frequently
threatened her with demotion, stating “I gave you sergeant and I can take it away.”
When considered in the context of an employer-employee relationship and the
power that Byrd wielded as Sheriff, the behavior alleged by Plaintiff could reasonably
be interpreted as physically threatening. The thigh-rubbing incident seems particularly
threatening, and its severity is magnified by the comment which allegedly accompanied
the physical contact. Plaintiff testified that Byrd made sexual comments on a daily
basis, that she had to hide from him to avoid harassment, that she routinely cried on
the way to work, and that it was not uncommon for her to cry at work. She testified
that she was afraid he would follow through with his threat to retaliate against her for
her refusal to succumb to his sexual advances.
“Deliberate and unwanted touching of . . . intimate body parts can constitute
severe sexual harassment.” Cherry v. Shaw Coastal, Inc., 668 F.3d 182, 189 (5th Cir.
2012). In the Court’s opinion, Plaintiff’s testimony is sufficient to create a genuine
factual dispute as to whether Byrd’s alleged conduct was severe or pervasive enough
to alter the terms, conditions, or privileges of Plaintiff’s employment. See, e.g. Royal,
736 F.3d at 401-03 (coworkers hovering over plaintiff and making sexual comments
were sufficient to create a genuine dispute of material fact as to “severe or pervasive”
determination); EEOC v. Boh Bros. Constr. Co., LLC, 731 F.3d 444, 461-62 (5th Cir.
8

2013) (sex-based epithets two to three times per week was sufficient evidence to
support a jury’s conclusion that sexual harassment was severe or pervasive); La Day
v. Catalyst Tech., Inc., 302 F.3d 474, 483 (5th Cir. 2002) (a single instance of anal
touching was sever enough to create factual dispute); Farpella-Crosby v. Horizon
Health Care, 97 F.3d 803, 806 (5th Cir. 1996) (frequent comments were sufficiently
severe or pervasive to create a hostile work environment).
d.

Ellerth/Faragher Defense

Defendant Byrd argues that he should receive the protection of the
Ellerth/Faragher defense. “Under this defense, an employer will not be vicariously
liable for harassment by a supervisor if it can show: (a) that the employer exercised
reasonable care to prevent and correct promptly any sexually harassing behavior, and
(b) that the plaintiff employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the employer to avoid harm
otherwise.” Boh Bros., 731 F.3d at 462.
Although it is undisputed that the Department had a workplace harassment
policy and reporting procedure [62-4], Sheriff Byrd himself was the alleged harassing
party. The record contains evidence that Byrd committed – and, therefore, had
knowledge of – these actions for months without taking any remedial measures.
Therefore, if Byrd is Plaintiff’s Title VII employer, there are genuine disputes of
material fact regarding the first element of the Ellerth/Faragher defense.
As for the County, a “Title VII employer has actual knowledge of harassment
that is known to ‘higher management’ or to someone who has the power to take action
9

to remedy the problem.” Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir. 1999).
“[T]o be considered a ‘manager,’ a person must have the ability to exert control over
employees.” Id. “This includes someone with the power not only to hire and fire the
offending employee but also to take disciplinary action, to provide significant input into
employment decisions, to instruct the offending employee to cease the harassing
behavior, or to implement other means of taking remedial action.” Id. “[T]he key to
whose knowledge may be imputed to the employer is remedial power: There is no
actual knowledge until someone with authority to address the problem is notified.” Id.
at 930.
The Mississippi legislature provided sheriffs complete authority in their
employment decisions: “Every sheriff shall have power to appoint one or more deputies
to assist him in carrying out the duties of his office, . . . to remove them at pleasure,
and to fix their compensation, subject to the budget for the sheriff’s office approved by
the county board of supervisors.” MISS. CODE ANN. § 19-25-19. Therefore, Defendant
Byrd qualifies as a person with “authority to address the problem,” and his knowledge
of the alleged harassment is imputed to the County. Sharp, 164 F.3d at 930.
Accordingly, if the County is Plaintiff’s employer, there are genuine disputes of
material fact regarding the first element of the Ellerth/Faragher defense.
4.

Retaliation

To establish a prima facie case of retaliation, a plaintiff must prove that (1) she
participated in an activity protected by Title VII; (2) her employer took an adverse
action against her; and (3) a causal connection exists between the protected activity
10

and the adverse employment action. McCoy v. City of Shreveport, 492 F.3d 551, 556-57
(5th Cir. 2007).
Here, Plaintiff apparently contends that her testimony before the grand jury and
EEOC charge of discrimination were “protected activity.”3 Plaintiff testified before the
grand jury on August 22, 2013, and according to her Amended Complaint [25], she filed
an EEOC charge on or about December 20, 2013. According to Plaintiff’s own testimony
[67-1] and time line of events [62-6], all of the alleged adverse employment actions –
the sexual comments and advances, the threats of retaliation if she refused, the
transfer to Ocean Springs, her removal from the Explorers program – occurred before
her grand jury testimony and EEOC charge. Therefore, these events could not possibly
have caused Defendant Byrd to retaliate against her.
B.

42 U.S.C. § 1983
Defendant Byrd argues that the Court should dismiss Plaintiff’s Section 1983

claims against him in his official capacity. The Court already dismissed Plaintiff’s
official-capacity Section 1983 claims against Byrd, in its Memorandum Opinion and
Order [28] of August 19, 2014.
C.

State-Law Claims
1.

Sexual Harassment Tort

Defendant argues that Mississippi does not recognize a tort of sexual
3

Plaintiff may argue that her rejection of Defendant Byrd’s sexual advances
constituted “protected activity,” but the Fifth Circuit has previously rejected this
argument. See LeMaire v. Louisiana, 480 F.3d 383, 389 (5th Cir. 2007); Frank v.
Harris County, 118 F. App’x 799, 804 (5th Cir. 2004).
11

harassment. Plaintiff does not contend otherwise. To the extent Plaintiff asserted a tort
of sexual harassment, the Court grants Defendant’s motion for summary as to that
claim. See Miller v. N. Miss. Med. Clinics, Inc., No. 1:07-CV-25, 2008 U.S. Dist. LEXIS
49763, at *19 (N.D. Miss. June 30, 2008) (no indication that Mississippi Supreme Court
or Fifth Circuit would impose liability under state law for sexual harassment); Smith
v. Murphy & Sons, Inc., No. 2:06-CV-79, 2007 U.S. Dist. LEXIS 64063, at *33-*34 (N.D.
Miss. Aug. 28, 2007) (no Mississippi Supreme Court or Fifth Circuit cases imposing
liability under state law for hostile work environment).
2.

Breach of Contract

Rather than argue in favor of her purported state-law claim for sexual
harassment, Plaintiff argues that Defendant Byrd breached her employment contract
by violating the Department’s policy regarding workplace harassment. However,
Plaintiff did not plead a breach of contract claim. The Amended Complaint [25]
contains no mention of Plaintiff’s employment contract or an alleged breach. “A claim
which is not raised in the complaint but, rather, is raised only in response to a motion
for summary judgment is not properly before the court.” Cutrera v. Bd. of Supervisors,
429 F.3d 108, 113 (5th Cir. 2005).
3.

IIED

A plaintiff may recover on a claim for intentional infliction of emotional distress
“[w]here there is something about the defendant’s conduct which evokes outrage or
revulsion, done intentionally . . . even there has been no physical injury.” Bowden v.
Young, 120 So. 3d 971, 980 (Miss. 2013). The defendant’s conduct “must be so
12

outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Id. Liability will not attach for mere insults, threats, indignities, petty
oppression, annoyances, or other trivialities. Funderburk v. Johnson, 935 So. 2d 1084,
1100 (Miss. Ct. App. 2006). Additionally, “[a] claim for intentional infliction of
emotional distress will not ordinarily lie for mere employment disputes. Recognition
of a cause of action for intentional infliction of emotional distress in a workplace
environment has usually been limited to cases involving a pattern of deliberate,
repeated harassment over a period of time.” Lee v. Golden Triangle Planning & Dev.
Dist., Inc., 797 So. 2d 845, 851 (Miss. 2001).
A jury could reasonably conclude that Plaintiff’s allegations fall outside the
category of “mere employment disputes.” Id. She testified that Defendant Byrd
sexually harassed her on a daily basis for months, and that he threatened to demote
her if she did not succumb to his advances. Two specific incidents she recounted could
reasonably be interpreted as physically threatening. In the Court’s opinion, Plaintiff’s
testimony is sufficient to create a factual dispute as to whether Defendant Byrd’s
alleged actions were outrageous and extreme enough to constitute intentional infliction
of emotional distress.
D.

Damages
1.

Lost Wages/Earning Capacity

Plaintiff conceded her claims for lost wages and lost earning capacity. Therefore,
the Court grants Defendant’s motion for summary judgment as to those claims for
13

damages.
2.

Punitive Damages – Title VII

The Civil Rights Act of 1991 “allows plaintiffs asserting a Title VII claim to
recover compensatory and punitive damages, provided that recovery is available under
§ 1981.” Oden, 246 F.3d at 465 (citing 42 U.S.C. § 1981a(a)). But the “Act precludes
plaintiffs from recovering punitive damages against governments, government
agencies, and political subdivisions.” Id. (citing 42 U.S.C. § 1981a(b)). Therefore, the
Court grants Defendant Byrd’s motion for summary judgment as to Plaintiff’s claim
for punitive damages under Title VII against him in his official capacity. See Pollard
v. Hinds County Dep’t of Human Servs., No. 3:13-CV-324-DPJ-FKB, 2014 U.S. Dist.
LEXIS 148269, at *9-*10 (S.D. Miss. Oct. 17, 2014); Barrett v. Miss. Dep’t of Pub.
Safety, No. 3:11-CV-185-TSL-JMR, 2013 U.S. Dist. LEXIS 110516, at *18-*19 (S.D.
Miss. Aug. 6, 2013).
3.

Punitive Damages – Section 1983

As the Court has already dismissed Plaintiff’s Section 1983 claims against Byrd
in his official capacity, any claim of punitive damages under Section 1983 against him
in his official capacity is likewise dismissed.
IV. JACKSON COUNTY’S MOTION FOR SUMMARY JUDGMENT [62]
A.

Title VII
First, the County argues that it is not Plaintiff’s employer as defined by Title

VII. “Determining whether a defendant is an ‘employer’ under Title VII . . . involves
a two-step process. First, the defendant must fall within the statutory definition.
14

Second, there must be an employment relationship between the plaintiff and the
defendant.” Deal v. State Farm County Mut. Ins. Co., 5 F.3d 117, 118 n. 2 (5th Cir.
1993); see also Muhammad v. Dallas County Cmty. Supervision & Corr. Dep’t, 479 F.3d
377, 380 (5th Cir. 2007) (applying 2-part framework from Deal).
In relevant part, Title VII defines an “employer” as “a person engaged in an
industry affecting commerce . . . and any agent of such a person . . . .” 42 U.S.C. §
2000e(b). “The term ‘person’ includes one or more individuals, governments,
government agencies, [and] political subdivisions . . . .” 42 U.S.C. § 2000e(a). Therefore,
Title VII’s definition of an “employer” includes individuals, political subdivisions, and
their agents. 42 U.S.C. § 2000e(a)-(b). The County is a political subdivision, and it falls
within the statutory definition.
Next, “in determining whether an employment relationship exists within the
meaning of Title VII . . . , we apply a ‘hybrid economic realities/common law control
test.’” Deal, 5 F.3d at 118-19.
The right to control an employee’s conduct is the most important
component of this test. When examining the control component, we have
focused on whether the alleged employer has the right to hire and fire the
employee, the right to supervise the employee, and the right to set the
employee’s work schedule. The economic realities component of our test
has focused on whether the alleged employer paid the employee’s salary,
withheld taxes, provided benefits, and set the terms and conditions of
employment.
Id. at 119 (punctuation and citations omitted). “Although other factors are relevant, the
most important factor is the extent of the employer’s right to control the ‘means and
manner’ of the worker’s performance.” Bloom v. Bexar County, 130 F.3d 722, 725-26
15

(5th Cir. 1997).
While federal law determines whether a person is an “employer” under Title VII,
“courts can look to state law to understand the nature of the employment relationship.”
Oden, 246 F.3d at 465. Looking to Mississippi law, the Fifth Circuit held that a
Mississippi sheriff was his deputy’s “employer” under Title VII. Id. (citing MISS. CODE
ANN. § 19-25-19). The Court noted that the sheriff was “solely responsible for hiring,
promoting, and establishing the deputies’ wages.” Id. Because he “was the official who
made all decisions concerning promotions within the Sheriff’s Department, he was” the
deputy’s employer under Title VII, and the Fifth Circuit reversed the district court’s
Title VII judgment against the county and the sheriff individually. Id.
At least one District Judge in this state has applied Oden as the County urges
– finding that, as a matter of law, the proper Title VII defendant is the sheriff in his
official capacity, rather than the county or the sheriff individually. See Miller v.
Choctaw County Sheriff’s Dep’t, No. 1:04-CV-96, 2006 U.S. Dist. LEXIS 14649, at *8-*9
(N.D. Miss. Mar. 13, 2006). But in Rogers v. Humphrey County, No. 4:09-CV-37, 2009
U.S. Dist. LEXIS 103863, at *2 (N.D. Miss. Oct. 15, 2009), Judge Mills noted the
“arguably inconsistent authority relating to the proper defendant in federal cases
involving Mississippi sheriff departments.” He observed that the general consensus is
that Mississippi’s sheriff’s departments are not “separate governmental entities”
capable of being sued, and questioned whether the Fifth Circuit would re-affirm Oden.
Id. at *2-*3 (citing Porter v. Lowndes County, Miss., 406 F. Supp. 2d 708 (N.D. Miss.
2005)).
16

The undersigned judge shares Judge Mills’ skepticism regarding Oden’s
continued precedential value on this issue. While federal law determines whether a
person is an “employer” under Title VII, state law illuminates the nature of the
employment relationship, Oden, 246 F.3d at 465, and the Mississippi Supreme Court
has expressly held that sheriff’s departments are not amenable to suit under state law
as separate entities from their counties. Brown v. Thompson, 927 So. 2d 733, 737
(Miss. 2006). Mississippi’s federal district judges have consistently applied this
principle.4
The Fifth Circuit’s opinion in Muhammad v. Dallas County Cmty. Supervision
& Corr. Dep’t, 479 F.3d 377 (5th Cir. 2007), provides guidance as to how the Court
should apply Oden. In Muhammad, the Fifth Circuit expressly declined to interpret a
prior case, Clark v. Tarant County, 798 F.2d 736 (5th Cir. 1986), as holding “that a
community supervision and corrections department is, as a matter of law, not a

4

See, e.g. Whiting v. Tunica County, 222 F. Supp. 2d 809, 825-26 (N.D. Miss.
2002); Rollins v. Hattiesburg Police Dep’t, No. 2:14-CV-61-KS-MTP, 2015 U.S. Dist.
LEXIS 91315, at *11 (S.D. Miss. July 14, 2015); Harris v. Jackson Cnty., No. 1:14CV-435-LG-RHW, 2015 U.S. Dist. LEXIS 39472, at *3 (S.D. Miss. Mar. 27, 2015);
Tate v. Sharp, No. 1:11-CV-268-GHD-DAS, 2014 U.S. Dist. LEXIS 54959, at *23
(N.D. Miss. Apr. 21, 2014); Allen v. Jackson County, No. 1:12-CV-57-HSO-RHW,
2013 U.S. Dist. LEXIS 91915, at *2 (S.D. Miss. July 1, 2013); Wiggington v. Wash.
County, No. 4:12-CV-51-SA-JMV, 2013 U.S. Dist. LEXIS 36912, at *3-*4 (N.D. Miss.
Mar. 18, 2013); Cunningham v. Hinds County Sheriff’s Dep’t, No. 3:12-CV-634CWR-FKB, 2012 U.S. Dist. LEXIS 156623, at *4 (S.D. Miss. Nov. 1, 2012); Franklin
v. Hinds County Sheriff Dep’t, No. 3:12-CV-423-DPJ-FKB, 2012 U.S. Dist. LEXIS
116225, at *4 (S.D. Miss. Aug. 17, 2012); Dotson v. McBride, No. 3:12-CV-307-TSLMTP, 2012 U.S. Dist. LEXIS 85218, at *1 (S.D. Miss. June 20, 2012); Rogers, 2009
U.S. Dist. LEXIS 103863 at *2; Irons v. Coahoma County Sheriff’s Dep’t, No. 2:07CV-184-B-D, 2009 U.S. Dist. LEXIS 66818, at *9-*10 (N.D. Miss. July 30, 2009).
17

probation officer’s Title VII employer.” Muhammad, 479 F.3d at 381. Instead, the
Court observed that it had applied the two-part test articulated in Deal, and found that
the plaintiffs failed to satisfy its elements. Id. (citing Clark, 798 F.2d at 747-48). The
Court reiterated that the “hybrid economic realities/common law control test is
necessarily a fact-specific inquiry . . . ,” and it remanded the case to the district court
for further factual findings about the “nature and circumstances” of the plaintiff’s
employment. Id. at 382-83.
Here, the parties neither discussed the facts relevant to the Fifth Circuit’s
“hybrid economic realities/common law control test” nor addressed the “nature and
circumstances” of Plaintiff’s employment – despite the fact that the Court specifically
outlined the Deal framework in its previous opinion [28]. Therefore, the Court
presently declines to rule on this issue and denies Defendant’s motion in that respect.
B.

42 U.S.C. § 1983
The County offered a number of arguments as to why it can not be liable for

Byrd’s actions under Section 1983.
A municipality is not liable under § 1983 on the theory of respondeat
superior, but only for acts that are directly attributable to it through
some official action or imprimatur. To hold a municipality liable under §
1983 for the misconduct of an employee, a plaintiff must show, in addition
to a constitutional violation, that an official policy promulgated by the
municipality’s policymaker was the moving force behind, or actual cause
of the constitutional injury. The official policy itself must be
unconstitutional or, if not, must have been adopted with deliberate
indifference to the known or obvious fact that such constitutional
violations would result.
Official policy can arise in various forms. It usually exists in the form of
written policy statements, ordinances, or regulations, but may also arise
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in the form of a widespread practice that is so common and well-settled
as to constitute a custom that fairly represents municipal policy. A policy
is official only when it results from the decision or acquiescence of the
municipal officer or body with final policymaking authority over the
subject matter of the offending policy.
Although an official policy can render a municipality culpable, there can
be no municipal liability unless it is the moving force behind the
constitutional violation. In other words, a plaintiff must show direct
causation, i.e., that there was a direct causal link between the policy and
the violation.
A plaintiff must also show that, where the official policy itself is not
facially unconstitutional, it was adopted with deliberate indifference as
to its known or obvious consequences. Deliberate indifference is a degree
of culpability beyond mere negligence or even gross negligence; it must
amount to an intentional choice, not merely an unintentionally negligent
oversight.
Of the moving force and deliberate indifference elements of municipal
liability, we have stressed: “These requirements must not be diluted for
where a court fails to adhere to rigorous requirements of culpability and
causation, municipal liability collapses into respondeat superior liability.”
James v. Harris County, 577 F.3d 612, 617-18 (5th Cir. 2009) (punctuation and
citations omitted).
1.

Constitutional Violations

First, the County argues that Plaintiff can not prove any constitutional
violations occurred insofar as she can not prove the elements of a quid pro quo or
hostile work environment claim. “Sex discrimination and sexual harassment in public
employment violate the Equal Protection Clause of the Fourteenth Amendment.”
Southard v. Tex. Bd. of Crim. Justice, 114 F.3d 539, 550 (5th Cir. 1997). In this context,
“section 1983 and Title VII are parallel causes of action,” and the same inquiry applies.
Cervantez v. Bexar County Civil Serv. Comm’n, 99 F.3d 730, 734 (5th Cir. 1996); see
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also Southard, 114 F.3d at 554; Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th
Cir. 1996).
The County presented the same arguments as Defendant Byrd. For the same
reasons provided above, the Court finds that Plaintiff presented no evidence of a
“tangible employment action” as contemplated by the Fifth Circuit’s quid pro quo
jurisprudence. However, the Court finds that Plaintiff provided enough evidence to
create genuine factual disputes regarding the elements of a hostile work environment
claim.
2.

Policy or Custom, Causation, and Byrd’s Authority as Policymaker

As noted above, a municipality can not be liable under Section 1983 simply
because it employs a tortfeasor. Rather, the plaintiff must identify a municipal policy
or custom that caused the injury. James, 577 F.3d at 617. Defendant argues that
Plaintiff provided no evidence of a policy or custom which caused her injury. It also
argues that it cannot be liable for Defendant Byrd’s actions because they exceed his law
enforcement authority.
“When a municipality’s final policy and decision maker in a single action directly
and intentionally deprives a person of a federal constitutional right, . . . the person
need not show that a policy or custom caused his injury in order to recover. In such a
case, the municipality’s action is deemed to be the direct cause or moving force behind
the deprivation of right and injury.” Coggin v. Longview Indep. Sch. Dist., 289 F.3d
326, 333 (5th Cir. 2002) (citing Board of County Comm’ners v. Brown, 520 U.S. 397,
402-04, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997)). “To prove liability under the single20

incident exception, a plaintiff must at least show (1) that the defendant acted with
deliberate indifference by disregarding a known or obvious consequence of his action
and (2) that there is a direct causal link between the defendant’s action and the
deprivation of federal rights.” Waltman v. Payne, 535 F.3d 342, 350 (5th Cir. 2008).
Defendant Byrd was not only the “final policymaker” for the County’s law
enforcement decisions. Waltman, 535 F.3d at 350. He also possessed complete
authority in the Department’s employment decisions, subject only to the Board of
Supervisors’ budgeting power. See MISS. CODE ANN. § 19-25-19. “[W]here action is
directed by those who establish governmental policy, the municipality is equally
responsible whether that action is to be taken only once or to be taken repeatedly.”
Pembaur v. City of Cincinatti, 475 U.S. 469, 481, 106 S. Ct. 1292, 89 L. Ed. 2d 452
(1986); see also St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915, 99 L. Ed. 2d
107 (1988); Brooks v. George County, 84 F.3d 157, 165 (5th Cir. 1996); Doerr v. Sisson,
563 F. App’x 291, 294 (5th Cir. 2014). Therefore, as Byrd was the County’s final
decision-maker with respect to the Sheriff’s Department’s employment decisions, the
County may be liable for his actions. Plaintiff’s testimony that Defendant Byrd
sexually harassed her on multiple occasions creates a genuine factual dispute as to the
elements of single-incident municipal liability under Section 1983.
C.

State Law Claims
1.

IIED

The MTCA waived the City’s sovereign immunity “from claims for money
damages arising out of torts of . . . governmental entities and the torts of their
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employees while acting within the course and scope of their employment . . . .” MISS.
CODE ANN. § 11-46-5(1). Plaintiff’s claim for intentional infliction of emotional distress
is predicated upon sexual harassment. However, this Court, the Mississippi Supreme
Court, and the Fifth Circuit “have held that sexual misconduct falls outside the course
and scope of employment” of public officials. Cockrell v. Pearl River Valley Water
Supply Dist., 865 So. 2d 357, 361-62 (Miss. 2004); see also Tichenor v. Roman Catholic
Church, 32 F.3d 953, 959 (5th Cir. 1994); L.T. v. City of Jackson, 145 F. Supp. 2d 750,
757 (S.D. Miss. 2000); E.D. v. Pugh, No. 2:11-CV-43-KS-MTP, 2011 U.S. Dist. LEXIS
126077, at *14-*16 (S.D. Miss. Oct. 31, 2011). Accordingly, the County has not waived
its sovereign immunity from liability for Plaintiff’s claim of intentional infliction of
emotional distress, and the Court grants Defendant’s motion for summary judgment
as to that claim against the County and Defendant Byrd in his official capacity.
The Court further notes that “an employee shall not be considered as acting
within the course and scope of his 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.” MISS. CODE ANN. § 11-46-5(2). Therefore, the
County has likewise not waived its sovereign immunity from liability against Plaintiff’s
claim for intentional infliction of emotional distress to the extent the claim is
predicated upon malicious behavior. See Idom v. Natchez-Adams Sch. Dist., No. 5:14CV-38-DCB-MTP, 2015 U.S. Dist. LEXIS 91321, *23 (S.D. Miss. July 14, 2015);
Ducksworth v. Rook, No. 2:14-CV-146-KS-MTP, 2015 U.S. Dist. LEXIS 20563, at *13
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(S.D. Miss. Feb. 20, 2015); R.S. v. Starkville Sch. Dist., No. 1:12-CV-88-SA-DAS, 2013
U.S. Dist. LEXIS 134264, at *44 (S.D. Miss. Sept. 19, 2013).
2.

Sexual Harassment Tort

For the same reasons provided above, the Court grants Defendant’s motion for
summary judgment as to any state-law claim for sexual harassment that Plaintiff may
have asserted.
3.

Breach of Contract

For the same reasons provided above, the Court finds that there is no breach of
contract claim properly before the Court.
D.

Damages
1.

Lost Wages/Earning Capacity

Plaintiff conceded her claims for lost wages and lost earning capacity. Therefore,
the Court grants Defendant’s motion for summary judgment as to those claims.
2.

Emotional Damages

Defendant argues that Plaintiff failed to plead that she suffered emotional
damages as a result of the actions underlying her Section 1983 claims. However, in her
Amended Complaint [25], Plaintiff asserted that all of the actions described therein
caused her to suffer emotional damages.
3.

Punitive Damages – 1983

Defendant argues that Plaintiff can not recover punitive damages from the
County or Defendant Byrd in his official capacity under Section 1983. Defendant is
correct. “[A] municipality is immune from punitive damages under 42 U.S.C. § 1983.”
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Newport v. Fact Concerts, 453 U.S. 247, 271, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981);
see also Gil Ramirez Grp., LLC v. Houston Indep. Sch. Dist., 786 F.3d 400, 412 (5th Cir.
2015). “An official-capacity claim is, in all respects other than name, to be treated as
a suit against the government entity.” Stern v. Hinds County, 436 F. App’x 381, 382
(5th Cir. 2011). Therefore, Plaintiff can not recover punitive damages from the County
or Defendant Byrd in his official capacity under Section 1983.
4.

Punitive Damages – State Law

Defendant argues that Plaintiff can not recover punitive damages from the
County or Defendant Byrd in his official capacity under state law. Defendant is correct.
The MTCA provides: “No judgment against a governmental entity or its employee for
any act or omission for which immunity is waived under this chapter shall include an
award for exemplary or punitive damages . . . .” MISS. CODE ANN. § 11-46-15(2).
Therefore, Plaintiff can not recover punitive damages from the County or Defendant
Byrd in his official capacity under state law.
V. CONCLUSION
For the reasons above, the Court grants in part and denies in part
Defendants’ Motions for Summary Judgment [62, 64].
The Court grants Defendant Byrd’s Motion for Summary Judgment [64] as to
any Title VII claim against him in his individual capacity, Plaintiff’s retaliation and
quid pro quo sexual harassment claims under Title VII, any purported state-law tort
claim of sexual harassment, Plaintiff’s claims for lost wages and lost earning capacity,
and Plaintiff’s claim for punitive damages under Title VII. The Court denies Byrd’s
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motion [64] as to Plaintiff’s hostile work environment claim under Title VII and her
state-law claim of intentional infliction of emotional distress.
The Court grants Jackson County’s Motion for Summary Judgment [62] as to
Plaintiff’s quid pro quo sexual harassment claim under Section 1983, Plaintiff’s claim
for intentional infliction of emotional distress against the County and Byrd in his
official capacity, any purported state-law tort claim of sexual harassment, Plaintiff’s
claims for punitive damages under Section 1983 and state law, and Plaintiff’s claims
for lost wages and lost earning capacity. The Court denies the County’s motion [62]
with respect to its status as an employer under Title VII, Plaintiff’s hostile work
environment claim under Section 1983, the County’s municipal liability under Section
1983, and Plaintiff’s claim for emotional damages under Section 1983.
Finally, the Court declines to address any purported breach of contract, as no
such claim is properly before the Court.
SO ORDERED AND ADJUDGED this 5th day of August, 2015.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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