Coleman v. Mississippi Department of Marine Resources et al
Filing
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MEMORANDUM OPINION AND ORDER granting 3 Motion to Dismiss. Plaintiff's claims against Jamie M. Miller, in his individual and official capacities, are dismissed for failure to state a claim. The plaintiff may file a motion for leave to file a second amended complaint on or before October 18, 2016, attaching the proposed amended complaint as an exhibit. Signed by Chief District Judge Louis Guirola, Jr. on 10/4/2016 (wld)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
AVA R. COLEMAN
PLAINTIFF
v.
CAUSE NO. 1:16CV289-LG-RHW
MISSISSIPPI DEPT. OF MARINE RESOURCES,
JAMIE M. MILLER, Individually and as Executive
Director/Agent, and JOHN/JANE DOES 1-2
DEFENDANTS
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO DISMISS
BEFORE THE COURT is the Motion [3] to Dismiss pursuant to Fed. R. Civ.
P. 12(b)(6) filed by Defendant Jamie M. Miller in his individual and official capacity.
Plaintiff Ava R. Coleman has responded, and Miller has replied. After due
consideration of the submissions and the relevant law, it is the Court’s opinion that
Miller has shown that Coleman failed to state a plausible claim against him.
Accordingly, the claims against Miller are dismissed, and Plaintiff is granted an
opportunity to file a second amended complaint.
BACKGROUND
Plaintiff Ava Coleman filed this lawsuit in the Circuit Court of Harrison
County, Mississippi, complaining of termination from her long-time employment
with the State of Mississippi. She had been employed by the Department of
Wildlife, Fisheries and Parks as the Lyman Fish Hatchery Manager for fifteen
years when, in 2007, she was asked to transfer to the Mississippi Department of
Marine Resources (“MDMR”). She was to remain the Hatchery Manager, but she
would be required to move from her on-site residence at the Hatchery.
Coleman alleges that shortly after accepting the transfer, she began
experiencing harassment and hostilities from the MDMR Chief of Staff, Joe Ziegler.
She alleges during the next year, Ziegler did not supply her with the assistance and
supplies she needed, locked her out of her office, placed an unqualified person as her
supervisor, and lodged “bogus” disciplinary actions against her.
Coleman filed grievances concerning Ziegler’s actions to the Mississippi
Employee Appeals Board. She alleges that an informal recommendation was made
that the MDMR find a suitable position for her. After she returned to work and
waited for a resolution, she found that she needed to request an extended medical
leave to manage her feelings of anxiousness and fearfulness. Her request was
granted in May 2008. Slightly more than one year later, in June 2009, Coleman
returned to work. She was placed in a low-level, non-managerial, non-supervisory
job at the MDMR and moved from her residence at the Hatchery. She then filed a
Workers’ Compensation Claim for job-related emotional distress, which resulted in
a settlement in September 2014. A few weeks later, Coleman was terminated by
letter from Defendant Jamie Miller, effective October 9, 2014. (Am. Compl. Ex. A,
ECF No. 7). Although Miller’s letter does not so state, Coleman alleges she was
terminated for leaving the workplace without authorization.
The Complaint and Motion to Dismiss
Coleman’s First Amended Complaint contains nine Counts. Two consist of
Fourteen Amendment claims (Counts One and Two). Four are state law claims of
breach of contract, interference with contract, and infliction of emotional distress
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(Counts Three through Six). The last three are directed only to the MDMR, alleging
employment discrimination under Title VII, the Americans with Disabilities Act,
and the Age Discrimination in Employment Act (Counts Seven, Eight and Nine).
Defendant Jamie Miller moves for dismissal of the claims against him.
Miller argues that Coleman has not stated viable Fourteenth Amendment claims,
and that the state law claims are either barred by the statute of limitations or
qualified immunity. Coleman responded to the arguments concerning her
constitutional claims against Miller, but not the arguments concerning her state
law claims.
DISCUSSION
The Legal Standard
When considering a motion to dismiss under Rule 12(b)(6), the Court must
accept all well-pleaded facts as true and view those facts in the light most favorable
to the plaintiff. Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010).
However, “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. Whether this standard has been met is “a context-specific task that requires the
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reviewing court to draw on its judicial experience and common sense.” Id. at 679.
Fourteenth Amendment Claims
1. Count I
Miller first argues for dismissal of Count I of the Complaint, which alleges
violation of substantive and procedural due process rights under the Fourteenth
Amendment, because these rights are not directly redressable. Instead, a plaintiff
must pursue Fourteenth Amendment claims through 42 U.S.C. § 1983. Burns-Toole
v. Byrne, 11 F.3d 1270, 1273, n.3 (5th Cir. 1994). Miller argues that Coleman fails
to specify that her Fourteenth Amendment claims are brought pursuant to 42
U.S.C. § 1983. When the allegations of Count I are read together with the
allegations of Count II, however, this deficiency is corrected. In Count II, Coleman
incorporates her earlier allegations and seeks recovery for deprivation of her
constitutional rights pursuant to § 1983. (Am. Compl. 9 (¶¶ 22-23), ECF No. 1-2).
The Court finds this pleading sufficient to satisfy the requirement that a civil rights
plaintiff utilize § 1983 to prosecute Fourteenth Amendment claims.
2. Official Capacity
Next, Miller argues that the § 1983 claims brought against him in his official
capacity should be dismissed, because the state is the real party in interest. “[A]n
official-capacity suit against a state officer ‘is not a suit against the official but
rather is a suit against the official’s office. As such it is no different from a suit
against the State itself.’” Hafer v. Melo, 502 U.S. 21, 26 (1991) (quoting Will v.
Mich. Dept. of State Police, 491 U.S. 58, 71 (1989)). Because the state agency is a
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named defendant in this lawsuit, the Court finds it appropriate to dismiss the
official-capacity § 1983 claims against Miller.
3. Personal Capacity - Qualified Immunity
In his personal capacity, Miller argues that he is entitled to qualified
immunity from Coleman’s § 1983 claims. Qualified immunity is a shield from
individual liability for “government officials performing discretionary functions . . .
as long as their actions could reasonably have been thought consistent with the
rights they are alleged to have violated.” Good v. Curtis, 601 F.3d 393, 400 (5th Cir.
2010) (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). “[Q]ualified
immunity generally protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)).
Courts use a two-step analysis to determine whether qualified immunity
applies. “[A] court addressing a claim of qualified immunity must determine first
whether the plaintiff has adduced facts sufficient to establish a constitutional or
statutory violation.” Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009)
(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Second, if a violation has been
alleged, the Court must determine “whether [the officer’s] actions were objectively
unreasonable in light of clearly established law at the time of the conduct in
question.” Id. (quoting Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007)). “When
a defendant raises qualified immunity, the burden is on the plaintiff to
‘demonstrate the inapplicability of the defense.’” Coleman v. Marion Cty., No.
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2:14cv185-DPJ-FKB, 2015 WL 5098524, at *6 (S.D. Miss. Aug. 31, 2015) (quoting
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002)). “[A] court
considering a motion to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. As for the remaining “well-pleaded factual
allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id.
Miller argues that “Coleman has failed to provide any factual detail and
particularity regarding the basis for the claims against Miller.” (Miller Mem. 5,
ECF No. 4). The portion of the Amended Complaint that refers to Miller states that
Miller [ ] summarily terminated [Coleman] on Oct. 9, 2014 “without
cause or advanced notice” and without “. . . state service protection . . .”
based upon his mere assertion that “. . . it is in the best interest of the
Mississippi Department of Marine Resources . . . to terminate [Ms.
Coleman’s] employment as Marine Fisheries Scientist V . . . .” during a
convenient, limited time period in which the agency asserts “. . .
exempt[ion] from State Personnel Board rules, regulations, and
procedures . . . ” which are rooted in constitutionally-protected rights
and were specifically designed to protect state employees such as Ms.
Coleman. Defendants sham method and manner in deciding to
terminate Ms. Coleman’s employment without due process, refusing to
afford Ms. Coleman any opportunity to refute any alleged evidence
against her was arbitrary and capricious in violation of Ms. Coleman’s
constitutional rights . . . .
(Am. Compl. 4-5 (¶5), ECF No. 1-2). Coleman alleges that the termination took
place
immediately following an incident in which she was wrongly accused of
“leaving the workplace on the morning of October 9, 2014,” while
allegedly “. . . not on authorized leave. . . ;” “without prior approval;”
and “. . . after being advised by Mr. Jewell that he wanted to meet . . .
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later that morning” even though Ms. Coleman was on personal leave
preparing to travel to visit her daughter in another state after her
leave request had been verbally approved, in accordance with common
practice, by her supervisors who were also aware of her planned trip to
visit her daughter.
(Am. Compl. 7-8 (¶15), ECF No. 1-2).
a) Procedural Due Process
Coleman’s allegations are that Miller’s reliance on an exemption from the
usual employee protections to terminate her employment without any notice was in
violation of her Fourteenth Amendment due process rights. Coleman refers to the
exemption found in the MDMR Accountability and Reorganization Act, codified at
Miss. Code Ann. § 49-15-11. For six months after April 16, 2014, the Act authorized
the Executive Director of the Department of Marine Resources to make personnel
changes without regard to State Personnel Board rules, regulations and procedures.
Miss. Code Ann. § 49-15-11(2). Coleman was terminated during this six-month
period.
Miller requested clarification of his authority under the Act from the Office of
the Mississippi Attorney General, who affirmed that the Act “exempts the executive
director of MDMR from [Mississippi State Personnel Board] procedures for a six
month period after its passage in order to reorganize the department. The
executive director may make personnel changes without MSPB approval including
termination and reorganization of staff and salary adjustments.” Re: Senate Bill
2579 (2014), Op. Miss. Att’y Gen. 2014-00206, 2014 WL 3572785, at *1 (Miss. A.G.
June 6, 2014). As the Mississippi Attorney General noted, the legislature may alter
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property rights previously extended to certain state employees without violating the
Constitution. “The Fifth Circuit Court of Appeals has stated ‘The Supreme Court
long ago established that, when a legislature extinguishes a property interest via
legislation that affects a general class of people, the legislative process provides all
the process that is due.’” Id. at *2 (quoting McMurtray v. Holladay, 11 F.3d 499
(5th Cir. 1993); Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441
(1915)).
In the McMurtray case cited by the Mississippi Attorney General above, the
Fifth Circuit Court of Appeals examined a similar exemption from Mississippi State
Personnel Board procedures, codified at Miss. Code Ann. § 57-1-1. McMurtray, 11
F.3d at 501. The exemption was for one year to allow reorganization of the
Department of Economic Development. The court held that Department of
Economic Development employees had a property interest in their employment, but
it was extinguished or suspended by the legislature for the one-year period. Id. at
504. The court went on to hold that employees who were terminated without the
usual procedures during the one-year period had not been denied due process,
because the legislative process provided all the process that was due. Id.
There are no material distinctions between this case and McMurtray. The
property interest Coleman had in her state employment was terminated or
suspended by the legislature for a six-month period beginning April 16, 2014. She
was terminated without the usual Mississippi State Personnel Board procedures
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during the six-month period. She received all the process she was due through the
legislative process when it enacted the MDMR Accountability and Reorganization
Act. Therefore, Coleman’s allegations that she was terminated without State
Personnel Board procedures do not state a procedural due process claim. Miller is
entitled to qualified immunity in regard to this claim.
b) Substantive Due Process
To demonstrate a violation of substantive due process “in the public
employment context, the plaintiff must show that the public employer’s termination
of her employment was arbitrary or capricious.” Babin v. Breaux, 587 F. App’x 105,
112 (5th Cir. 2014) (quoting Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th
Cir. 1993)) (alterations omitted). So long as “the employer acted with a specific
exercise of professional judgment in a non-arbitrary and non-capricious manner,”
there is no substantive due process violation. Babin, 587 F. App’x at 112 (citing
Spuler v. Pickar, 958 F.2d 103, 107 (5th Cir. 1992)) (alteration omitted). For
Coleman to prevail, the “bar is high . . . .” Jones v. La. Bd. of Sup’rs of Univ. of La.
Sys., 809 F.3d 231, 240 (5th Cir. 2015).
Coleman alleges that Miller’s action in terminating her was arbitrary and
capricious, (Am. Compl. 5 (¶5), EF No. 1-2), but she pleads no facts to support this
conclusion. Miller was authorized to reorganize the Department of Marine
Resources by termination or reassignment of employees. The statute explicitly gave
him “flexibility” to make personnel decisions that would result in “an orderly,
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effective and timely reorganization of the Department of Marine Resources.” Miss.
Code Ann. § 49-15-11(2).
Coleman draws conclusions about Miller’s motivation for terminating her
from the timing of events, since her termination occurred shortly after she was
disciplined for leaving the workplace without authorization. But Miller’s
explanation of the reason for her termination during the exemption period was
simply that he deemed it to be in the best interest of the MDMR. (Am. Compl. Ex.
A, ECF No. 7). Coleman does not allege facts making it plausible that Miller’s
decision to terminate her lacked any basis in fact or was made without professional
judgment. See Jones, 809 F.3d at 240. Coleman’s allegations concerning denial of
substantive due process fail to state a claim. Miller is entitled to qualified
immunity in regard Coleman’s substantive due process claim.
42 U.S.C. §§ 1985 & 1986 Claims
Coleman alleges that the defendants violated 42 U.S.C. § 1985 by conspiring
to deprive or injure her “in her person, liberty or property, . . . with the intent to
deny her the equal protection of the laws.” (Am. Compl. 9-10 (¶¶ 24, 25), ECF No.
1-2). This is a claim of violation of 42 U.S.C. § 1985(2).1 Section 1985(2) prohibits
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(2) Obstructing justice; intimidating party, witness, or juror
If two or more persons in any State or Territory conspire to deter, by force,
intimidation, or threat, any party or witness in any court of the United States from
attending such court, or from testifying to any matter pending therein, freely, fully,
and truthfully, or to injure such party or witness in his person or property on
account of his having so attended or testified, or to influence the verdict,
presentment, or indictment of any grand or petit juror in any such court, or to injure
such juror in his person or property on account of any verdict, presentment, or
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conspiracies to deny any citizen equal protection of the laws or to injure a citizen for
his efforts to ensure the rights of others to equal protection. 42 U.S.C. § 1985(2).
Section 1986 penalizes those with knowledge of and the power to prevent § 1985
conspiracies who fail to do so. 42 U.S.C. § 1986; Bryant v. Military Dep’t of Miss.,
597 F.3d 678, 687 (5th Cir. 2010).
“A violation under § 1985 requires ‘class-based, invidiously discriminatory
animus behind the conspirator’s action.’” Moffett v. Bryant, 751 F.3d 323, 326 (5th
Cir. 2014) (quoting Bryant, 597 F.3d at 687)). Coleman has pled no facts showing
that a class-based discriminatory animus was behind Miller’s action. At most, her
allegations demonstrate that the personal animus of an unspecified supervisor may
have motivated the disciplinary write-up and her termination by Miller. But a
personal animus is inadequate to allege a § 1985 conspiracy. See Moffett, 751 F.3d
at 326.
In her response brief, Coleman argues the equal protection issue by noting a
case in which a male fish and wildlife conservation officer was afforded much more
process prior to his termination than she was prior to her termination. Miss. Dep’t
of Wildlife, Fisheries & Parks v. Bradshaw, 196 So. 3d 1075 (Miss. Ct. App. 2016).
indictment lawfully assented to by him, or of his being or having been such juror; or
if two or more persons conspire for the purpose of impeding, hindering, obstructing,
or defeating, in any manner, the due course of justice in any State or Territory, with
intent to deny to any citizen the equal protection of the laws, or to injure him or his
property for lawfully enforcing, or attempting to enforce, the right of any person, or
class of persons, to the equal protection of the laws. . . .
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However, the male officer in that case was employed by the Mississippi Department
of Wildlife, Fisheries and Parks, not the MDMR. If Coleman is asserting that she
suffered discrimination based on her gender class, she cannot show that she was
similarly situated to the Bradshaw plaintiff; he was employed by a different agency
that was not subject to the MDMR Accountability and Reorganization Act.
In addition to lacking allegations of a class-based animus, the Amended
Complaint includes no allegations concerning a conspiracy, such as who Miller
conspired with, or the object of the conspiracy. The Fifth Circuit has held that
unsubstantiated and conclusory claims of discrimination under 42 U.S.C. § 1985 are
without merit. Hamilton v. Service King Auto Repairs, 437 F. App’x 328, 329 (5th
Cir. 2011) (unsubstantiated and conclusory claims of racial discrimination under 42
U.S.C. §§ 1985 and 1986 lacked merit). Conclusory allegations are all that Coleman
has offered in support of her § 1985 claim, and they are insufficient to overcome
Miller’s qualified immunity defense. Accordingly, the § 1985 claims against Miller
in his individual capacity fails.
“A valid § 1985 claim is a prerequisite to a § 1986 claim.” Bryan v. City of
Madison, 213 F.3d 267, 276 (5th Cir. 2000). Since Coleman has not stated a § 1985
claim, she fails to state a § 1986 claim as well. Miller is entitled to qualified
immunity in regard to the §§ 1985 and 1986 claims.
State Law Claims
Miller argues that Coleman’s claim for breach of contract is time-barred, and
that he is entitled to statutory immunity under the Mississippi Tort Claims Act for
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the remaining state law claims, which are based on the performance of
discretionary functions. As Coleman has not responded to these arguments, they
will be treated briefly here.
In regard to the breach of contract claim, Coleman does not allege that she
had a written employment contract. The time limitation for bringing an action
based on unwritten contract of employment is one year. Miss. Code. Ann. § 15-1-29.
Coleman’s termination was effective on October 9, 2014, giving her until October 9,
2015, to pursue a breach of contract claim. This lawsuit was filed on April 6, 2016.
Coleman’s breach of contract claim is therefore untimely and should be dismissed.
The remaining causes of action are intentional infliction of emotional
distress, negligent infliction of emotional distress, and malicious interference with
contract. All are torts based on Miller’s termination of Coleman’s employment.
Miller argues that the Mississippi Tort Claims Act exempts him from liability for
these claims, as he was acting in the course and scope of his employment when he
terminated Coleman. Specifically, the MTCA exempts “the exercise or performance
or the failure to exercise or perform a discretionary function or duty on the part of a
governmental entity or employee thereof, whether or not the discretion be abused.”
Miss. Code. Ann. § 11-46-9(1)(d).
Employment decisions are discretionary in Mississippi. Levens v. Campbell,
733 So. 2d 753, 763-64 (Miss. 1999); Suddith v. Univ. of So. Miss., 977 So. 2d 1158,
1179 (Miss. Ct. App. 2007). The MDMR Accountability and Reorganization Act is
an additional source of discretion granted to Miller in making the employment
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decision Coleman challenges here. See Miss. Code Ann. § 49-15-11(2). Accordingly,
the MTCA exempts Miller from liability for Coleman’s claims of intentional
infliction of emotional distress, negligent infliction of emotional distress, and
malicious interference with contract. The claims will be dismissed.
CONCLUSION
After reviewing the allegations of the Amended Complaint, the Court finds
that they are insufficient to state claims against Jamie Miller under Fed. R. Civ. P.
12(b)(6) for the reasons set out above. Although the Court will grant Miller’s
Motion to Dismiss, the plaintiff should be given an opportunity to replead her
claims against him. “[D]istrict courts often afford plaintiffs at least one opportunity
to cure pleading deficiencies before dismissing a case, unless it is clear that the
defects are incurable or the plaintiffs advise the court that they are unwilling or
unable to amend in a manner that will avoid dismissal.” Great Plains Trust Co. v.
Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002). Therefore,
Plaintiff Coleman will be granted an opportunity to seek leave to file a second
amended complaint, should she wish to do so.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion [3] to
Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) filed by Defendant Jamie M. Miller, is
GRANTED. Plaintiff’s claims against Jamie M. Miller, in his individual and
official capacities, are DISMISSED for failure to state a claim.
IT IS FURTHER ORDERED AND ADJUDGED that the plaintiff may file
a motion for leave to file a second amended complaint on or before October 18, 2016,
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attaching the proposed amended complaint as an exhibit.
SO ORDERED AND ADJUDGED this the 4th day of October, 2016.
s/
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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