Coleman v. Mississippi Department of Marine Resources et al
MEMORANDUM OPINION AND ORDER granting 33 Motion for Summary Judgment Signed by Chief District Judge Louis Guirola, Jr. on 9/12/2017 (wld)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
AVA R. COLEMAN
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
MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is the  Motion for Summary Judgment filed by
the remaining Defendant in this case, the Mississippi Department of Marine
Resources. Plaintiff Ava R. Coleman has responded, and the MDMR has replied.
After due consideration of the submissions and the relevant law, it is the Court’s
opinion that the MDMR has shown there is no question of material fact for the jury.
Accordingly, the defendant’s Motion is granted and Plaintiff’s claims are dismissed.
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 (“DWFP”) 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
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 MDMR executive director Jamie Miller, effective October 9, 2014. (Am.
Compl. Ex. A, ECF No. 7). Coleman alleges she was terminated for leaving the
workplace without authorization. Miller’s letter does not specify a reason for her
termination, but informed Coleman that
[i]n accordance with the Mississippi Department of Marine Resources
Accountability and Reorganization Act (Senate Bill No. 2579, effective
April 17, 2014), the MDMR is exempt from State Personnel Board
rules, regulations, and procedures. During this exemption, you do not
have state service protection, and may be terminated without cause or
(Pl. Resp. Attach 2 to Ex. C, ECF No. 37-4).
Coleman’s First Amended Complaint contains nine Counts. (Notice of
Removal Ex. A 25-42, ECF No. 1-2). Count One is a Fourteenth Amendment claim
brought pursuant to 42 U.S.C. § 1983. Count Two alleges violations of §§ 1983,
1985, and 1986. Counts Three through Six are state law claims of breach of
contract, interference with contract, and infliction of emotional distress. The last
three Counts allege employment discrimination under Title VII, the Americans with
Disabilities Act, and the Age Discrimination in Employment Act (Counts Seven,
Eight and Nine).
Earlier in the case, the Court dismissed Coleman’s claims against Defendant
Jamie Miller, the MDMR executive director, in his individual and official capacity.
(Mem. Op. & Order Granting Mot. to Dismiss, ECF No. 13), Coleman v. Miss. Dep’t
of Marine Res., No. 1:16cv289-LG-RHW, 2016 WL 5794772 (S.D. Miss. Oct. 4, 2016).
Although given the opportunity to amend her claims against Miller, Coleman did
not do so.
The MDMR now moves for judgment as a matter of law on all of the claims
against it. Coleman has responded in opposition, although she expressly conceded
her Age Discrimination in Employment Act claim. (Pl. Resp. Mem. 18, ECF No. 38).
The MDMR has replied in support of its Motion. The Court addresses the
arguments regarding the remaining claims below.
42 U.S.C. §§ 1983, 1985, and 1986
The MDMR argues that Coleman may not bring a viable claim against it
pursuant to sections 1983, 1985 or 1986 because it is not a “person” under those
statutes. Bryant v. Military Dep’t of State of Miss. ex rel. Miss. Air Nat. Guard, 381
F. Supp. 2d 586, 592 (S.D. Miss. 2005), aff’d sub nom. Bryant v. Military Dep’t of
Miss., 597 F.3d 678 (5th Cir. 2010) (claims under §§ 1983, 1985 and 1986 barred
because these statutes create rights solely against “persons” and a state is not
considered a “person” under these statutes). Coleman argues that she has
requested injunctive relief, and she can bring a viable claim for injunctive relief
against a state official in his official capacity under these statutes, citing Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71, n. 10 (1989).
Although there was a state official defendant in this lawsuit at one time, the
claims against him were dismissed, and Coleman declined the opportunity to file
amended claims against him. Thus, only the State entity itself remains as a
defendant. The law is clear that the State is not a person for purposes of §§ 1983,
1985 and 1986, and therefore Coleman’s claims against the MDMR pursuant to
these statutes will be dismissed.
Coleman’s Title VII claims encompass sex/gender discrimination, hostile
working environment and retaliation. In her Amended Complaint, response to this
Motion, and affidavit attached to her response, Coleman refers to a charge of
discrimination she made to the Equal Employment Opportunity Commission. The
Court is unable to locate it, or any EEOC documentation, in the record. “In order to
file suit under Title VII, a plaintiff first must file a charge with the EEOC within
180 days of the alleged discriminatory act. If and once the EEOC issues a
right-to-sue letter to the party who has filed the EEOC charge, that party has 90
days to file a Title VII action.” Price v. Choctaw Glove & Safety Co., 459 F.3d 595,
598 (5th Cir. 2006). These time periods act as statutes of limitation. Hood v. Sears
Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999). If the employee files a Title VII
action, the claims must have been asserted in the formal charge of discrimination to
the EEOC, or be claims that could be reasonably expected to grow out of the formal
charge. Filer v. Donley, 690 F.3d 643, 647 (5th Cir. 2012). The MDMR does not
challenge Coleman’s employment discrimination claims for failure to exhaust her
Title VII remedies, and therefore the Court will assume for purposes of this Motion
that the plaintiff’s charge was timely and included the grounds she has asserted
a. Sex Discrimination
Coleman argues that she experienced sex discrimination at the time of her
termination because she was qualified to assume other positions in the MDMR that
“less experienced, less qualified males” held. (Pl. Resp. Mem. 11-12, ECF No. 38).
Essentially, a less experienced male should have been terminated so that she could
have his position. Also, she was not offered the option of retirement while a male
colleague, terminated during the same period, was given that choice. (Id. at 12).
Because the evidence offered to support Coleman’s sex discrimination claim is
circumstantial rather than direct, she must establish a claim of discrimination
under the McDonnell Douglas framework, and first make out a prima facie case of
discrimination. Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512-14
(5th Cir. 2001); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). This requires Coleman to demonstrate that (1) she is a member of a
protected group; (2) she was qualified for the position at issue; (3) she was
discharged; and (4) after being discharged, her employer replaced her with a person
who is not a member of the protected class, or those not members of the protected
class remained in similar positions. Buchanan v. CCA Tallahatchie Cty. Corr.
Facility, No. 4:16CV00200-SA-JMV, 2017 WL 875997, at *3 (N.D. Miss. Jan. 3,
2017), report and recommendation adopted, No. 4:16-CV-200-SA-JMV, 2017 WL
875852 (N.D. Miss. Mar. 3, 2017), aff’d sub nom. Buchanan v. CCA/Tallahatchie
Cty. Corr. Facility, No. 17-60178, 2017 WL 3098177 (5th Cir. July 20, 2017); Okoye,
245 F.3d at 512-14.
The MDMR addresses only the fourth prima facie element, asserting that
Coleman’s job duties were assumed by a sixty-eight year old female, Ms. Ross.
According to one of Coleman’s supervisors, Coleman had been assisted in her data
collection activities by Ross and others, and Ross was given the primary
responsibility for the data collection after Coleman was terminated. (Def. Mot. Ex.
3, at 11-14, ECF No. 33-3). Ross’ duties are reassigned to other MDMR employees
only when Ross takes leave or a vacation day. (Id. at 12, 44-45). Thus, MDMR
argues that Coleman cannot establish a prima facie case of sex discrimination
because she was replaced by someone in her same protected class.
Coleman agrees that her work is now being performed by Ross, (an “elderly
contract worker” “with very limited qualifications”), but states that a younger male
colleague performs the work as well. (Pl. Resp. Ex. A 3, ECF No. 37-1). Coleman’s
testimony about who performs her previous work comports with the MDMR’s
explanation of her replacement, and does not establish that she was replaced by
someone outside her protected class.
Coleman also attempts to establish the fourth element by arguing that males
remained in similar positions, and she was treated differently than male workers in
similar circumstances. “Employees may also raise an inference of discrimination if
they compare their treatment to that of nearly identical, similarly situated
individuals who were not terminated.” Vital v. Nat’l Oilwell Varco, L.P., 685 F.
App’x 355, 359 (5th Cir. 2017).
The MDMR shows that Coleman cannot establish that those not members of
her protected class remained in similar positions or were treated more favorably.
Coleman was one of sixteen employees terminated pursuant to the DMR
Accountability and Reorganization Act. (Def. Mot. Ex. 2, at 1-2, ECF No. 33-2).
Eleven of the terminated employees were males; five were females. (Id.). Beyond a
bare argument that she was qualified by the classification of her job title for four
other positions in the MDMR held by males who were not terminated, Coleman
makes no attempt to show that a male was retained in a position similar to hers.
(Pl. Resp. Mem. 11-12, ECF No. 38). This is insufficient to show that she was
treated differently than the male workers. See Graham v. Bluebonnet Trails Cmty.
Servs., 587 F. App’x 205, 207 (5th Cir. 2014). Further, according to Coleman’s
testimony, MDMR officials were motivated by a desire to preferentially retain Ross;
“somebody was trying to save [Ross’] job, so they fired me.” (Pl. Resp. Ex. A 137-38,
ECF No. 37-1).
The MDMR also argues that Coleman was not offered retirement rather than
termination because she refused to speak with the Human Resources Director about
her pending termination. (Def. Mot. Ex. 2, at 2, ECF No. 33-2). Coleman had not
even looked at the notice of termination letter until her deposition. (Pl. Resp. Ex. 2,
at 126, ECF No. 37-2) (“This is the first time I have ever looked at this . . . . I don’t
want to look at it. Do I have to?”). Coleman testified that on the day she learned
she would be terminated, she had gone into the office to get keys and have her leave
slip signed. Joe Jewell (Coleman’s secondary supervisor) refused to approve her
leave request, and told her “they’re getting ready to call you upstairs, and it ain’t
going to be good.” (Pl. Resp. Ex. A 128-32, 151, ECF No. 37-2). Coleman testified “I
said, Joe, I’m going. I’ll see you later . . . . And so I left, and then [Human
Resources Director] Christy called me on the phone and told me to come back. I told
her, no, I was on vacation and to leave me alone.” (Id. at 132-33). Coleman has
since filed for her retirement benefits. (Id. at 143).
Coleman must show that differences between her conduct and that of the
male colleague she alleges was offered retirement in lieu of termination did not
account for the differential treatment they received. Ratliff v. Advisors Asset
Mgmt., Inc., 660 F. App’x 290, 292 (5th Cir. 2016). Because she provides no
evidence of the conduct of her male colleague comparator, Coleman’s Title VII
discrimination claim fails as a matter of law. Id.
b. Hostile Work Environment
To prevail on her hostile work environment claim, Coleman must establish
that: (1) she belonged to a protected group; (2) she was subjected to unwelcome
harassment; (3) such harassment was based on gender or race; (4) the harassment
complained of affected a term, condition, or privilege of employment; and (5) the
employer knew or should have known of the harassment in question and failed to
take prompt remedial action. Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.
We determine whether a hostile work environment exists using a
totality-of-the-circumstances test that focuses on the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating . . . and whether it unreasonably interferes
with an employee’s work performance.
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 347 (5th Cir. 2007) (ellipsis in
original) (internal citation and quotation marks omitted). A plaintiff “must
subjectively perceive the harassment as sufficiently severe or pervasive, and this
subjective perception must be objectively reasonable.” Frank v. Xerox Corp., 347
F.3d 130, 138 (5th Cir. 2003). Title VII is intended only to prohibit and prevent
conduct “that is so severe [or] pervasive that it destroys a protected class member’s
opportunity to succeed in the workplace.” Shepherd v. Comptroller of Public
Accounts, 168 F.3d 871, 874 (5th Cir. 1999). Title VII’s overall goal of equality is
not served if a claim can be maintained solely based on conduct that wounds or
offends, but does not hinder an employee’s performance. Weller v. Citation Oil &
Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996). It is a “demanding” standard that
requires proof of severe or pervasive conduct that can be characterized as “extreme.”
Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998).
Coleman complains that following her transfer to the MDMR in 2007, she
began experiencing harassment and hostilities from the MDMR Chief of Staff, Joe
Ziegler. She alleges that during 2008, Ziegler did not supply her with the
assistance and supplies she needed, locked her out of her office, pressured her to
leave the Hatchery residence, placed an unqualified person as her supervisor, and
lodged “bogus” disciplinary actions against her.1 In her response memorandum,
She described one disciplinary incident that occurred while she was
supervising two young men mowing grass at the Hatchery:
Well, I’m cutting the grass, and here I see him coming
around in a gold truck he had at that time, a State, gold
Yukon . . . . He said, get in the car. I said, Joe, I’m dirty,
stinky. I’m cutting grass. He said, Ava, get in the car. I
said, Joe, I don’t want to get in the car. He said, I’m your
supervisor. Get in the car . . . . He was mad, mad, mad
that I wouldn’t get in the car. I didn’t know what he
wanted. He had me at this point wondering is he playing
with a full deck. Is he going to shoot me? What’s the
matter with him? I wouldn’t get in the car. Had he not
talked to me like he did, I would have told him, look, Joe,
Coleman asserts the following as additional evidence of a hostile work environment:
her coworkers viewed her with suspicion and as “an untouchable with a nebulous
job” and a “probably undeserved salary;” she was labeled as disruptive; and she was
blamed for several incidents with “a few disgruntled co-workers.” (Pl. Resp. Mem.
14, ECF No. 38).
The time limitation for filing an EEOC charge asserting hostile work
environment is “within  days of any action that contributed to the hostile work
environment.” EEOC v. WC&M Enters., Inc., 496 F.3d 393, 398 (5th Cir. 2007). It
is not clear when all of these events took place or precisely when Coleman filed her
EEOC charge. Nevertheless, the Court “may consider all of the acts that are
alleged to have contributed to the hostile work environment, even though some of
them may have taken place outside of the [180-]day filing period.” Id.
Considering all of the acts that Coleman alleges contributed to a hostile work
environment, it appears that Coleman perceived she was treated differently while
she worked for the DWFP at the Hatchery because she was not one of the boys. For
instance, she complains that she was given a pink-striped four-wheeler because
“none of the men wanted to drive” it. (Pl. Resp. Ex. A 50-51, ECF No. 37-2).
When she transferred to the MDMR, Zeigler was chief of staff. (Id. at 83).
She testified that Zeigler “constantly” pressured her to move from the Hatchery.
I’ve got those young boys there, and I’m keeping an eye on
them. What do you need?
(Pl. Resp. Ex. A 91-92, ECF No. 37-2)
(Id.). Zeigler was also “harsh” to other Hatchery employees; “[h]e’d come out there
with demands, why isn’t this done.” (Id. at 85). Coleman seems to have perceived
Ziegler’s treatment of her as a product of his personality, and perhaps a dislike of
After Coleman left the Hatchery, her complaints concern how she was treated
by female co-workers, who constantly “stirred the pot” because they resented the
salary she earned for menial work. (Id. at 114-15).
The events Coleman recounts in her deposition are work or personality
conflicts that do not involve her sex. Coleman does not provide evidence of sexbased harassment so pervasive and severe that it destroyed her opportunity to
succeed in the workplace. As there is insufficient evidence to create a question of
material fact for the jury on this claim, it will be dismissed.
To establish a prima facie case for retaliation, an employee must show that 1)
she engaged in a protected activity; 2) an adverse employment action occurred; and
3) a causal link existed between the protected activity and the adverse action.
Baker v. Am. Airlines, Inc., 430 F.3d 750, 754 (5th Cir. 2005) (citations and internal
marks omitted). Coleman argues that she engaged in protected activity twice while
she was working at the hatchery – when she filed an internal harassment complaint
against Ziegler for angrily demanding that she get in the car with him, and when
she appealed the placement of a written reprimand in her file.2 (Pl. Resp. Mem. 16,
ECF No. 38).
An employee has engaged in protected activity under Title VII if she has (1)
“opposed any practice made an unlawful employment practice by this chapter,” or
(2) “made a charge, testified, assisted, or participated in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a); see also
Byars v. Dallas Morning News, Inc., 209 F.3d 419, 427-28 (5th Cir. 2000). The
evidence here is that Coleman’s complaints of harassment had to do with treatment
by her supervisors that Coleman felt was unfair. The “discrimination” alleged was
unfair treatment which, unless it is based on a protected trait, is not prohibited by
Title VII. See Tratree v. BP N. Am. Pipelines, Inc. 277 F. App’x 390, 395 (5th Cir.
2008) (“Complaining about unfair treatment without specifying why the treatment
is unfair . . . is not protected activity.”); Harris-Childs v. Medco Health Solutions,
Inc., 169 F. App’x 913, 916 (5th Cir. 2006) (affirming summary judgment on
retaliation claim where plaintiff never “specifically complained of racial or sexual
harassment, only harassment”); Moore v. United Parcel Serv., Inc. 150 F. App’x 315,
319 (5th Cir. 2005) (“Moore . . . was not engaged in a protected activity, as his
grievance did not oppose or protest racial discrimination or any other unlawful
Although Coleman states that she “successfully grieved and appealed” the
MDMR’s disciplinary action, she was only successful in reducing the reprimand to
one set of circumstances rather than three separate incidents. (Pl. Resp. Ex. 3 to
Ex. A, ECF No. 37-1). The Hearing Officer found that Coleman had been
insubordinate and the written reprimand should stand.
employment practice under Title VII.”). Coleman’s complaint of unfair treatment by
her supervisors without a connection to a protected trait is not an activity protected
by Title VII. Accordingly, Coleman does not show there is a question of material
fact regarding retaliation. This claim will be dismissed.
Americans With Disabilities Act
Coleman alleges that the MDMR regarded her as disabled, and this was the
sole or a motivating factor for discrimination and retaliation against her, in
violation of the ADA, 42 U.S.C. § 12101 et seq.3 (Am. Compl. 15-16, ECF No. 1-2).
Title I of the ADA prohibits employment discrimination “on the basis of disability.”
42 U.S.C. § 12112(a). The MDMR argues that it is entitled to dismissal of this
claim on the basis of Eleventh Amendment immunity, and in the alternative,
Coleman cannot establish a prima facie case of Title I discrimination.
The United States Supreme Court has “squarely held that suits for
employment discrimination under Title I of the ADA brought against state entities
are barred by the Eleventh Amendment.” Anderson v. Jackson State Univ., 675 F.
App’x 461, 463 (5th Cir. 2017) (citing Bd. of Trustees of Univ. of Ala. v. Garrett, 531
U.S. 356, 360 (2001)). Eleventh Amendment immunity deprives this Court of
jurisdiction, and therefore the ADA claim will be dismissed without prejudice.
Anderson, 675 F. App’x at 464 (citations omitted).
The exhaustion requirement applies to this ADA claim just as it does to the
Title VII claims above. Dao v. Auchan Hypermarket, 96 F.3d at 787, 788-89 (5th
Cir. 1996). The Court will assume for purposes of this Motion that Coleman
presented the ADA claim she makes here to the EEOC.
State Law Claims
Coleman alleges claims of malicious interference with employment, breach of
duty of good faith and fair dealing, intentional infliction of emotional distress and
negligent infliction of emotional distress against the MDMR. The MDMR argues
that all of these claims are time-barred by application of the one-year limitation in
Miss. Code Ann. § 11-46-11(3)(a).4 Coleman points to the next subsection, which
provides for an additional ninety-day period in which to file suit.5 She asserts that
her Complaint was timely filed when this provision is taken into account. She
This provision of the Mississippi Tort Claims Act states:
All actions brought under this chapter shall be
commenced within one (1) year next after the date of the
tortious, wrongful or otherwise actionable conduct on
which the liability phase of the action is based, and not
after, except that filing a notice of claim within the
required one-year period will toll the statute of limitations
for ninety-five (95) days from the date the chief executive
officer of the state entity or the chief executive officer or
other statutorily designated official of a political
subdivision receives the notice of claim.
(b) No action whatsoever may be maintained by the
claimant until the claimant receives a notice of denial of
claim or the tolling period expires, whichever comes first,
after which the claimant has an additional ninety (90)
days to file suit; failure to file within the time allowed is
an absolute bar to any further proceedings under this
Miss. Code Ann. § 11-46-11(3)(b).
served her notice of claim on October 6, 2015. The MDMR did not respond to the
notice, and therefore the tolling period expired on January 8, 2016, ninety-five days
after service of the notice. Coleman had an additional ninety days after January 8,
2016 to file her complaint, or until April 8, 2016. Her complaint was filed two days
prior to this “absolute bar,” making it timely. Miss. Code Ann. § 11-46-11(3)(b).
The MDMR does not rebut Coleman’s calculations, and therefore the Court finds
that the state law tort claims were timely filed.
a. Malicious Interference With Employment
Tortious interference with at-will employment can be the basis of a tortious
interference with contract claim. Morrison v. Miss. Enter. For Tech., Inc., 798 So. 2d
567, 574 (Miss. Ct. App. 2001) (citing Levens v. Campbell, 733 So. 2d 753, 760 (Miss.
1999)). Tortious interference with contract is defined as “malicious or intentional
interference with a valid and enforceable contract by a third party which causes one
contracting party not to be able to perform and the failure to perform results in a
monetary loss for the other contracting party.” Courtney v. Glenn, 782 So.2d 162,
164-65 (Miss. Ct. App. 2000) (citing Cenac v. Murry, 609 So.2d 1257, 1268 (Miss.
1992)) (emphasis added).
The MDMR asserts that it cannot be liable for tortiously interfering with its
own employment contract with Coleman, who was an at-will employee by operation
of the MDMR Accountability and Reorganization Act. Coleman does not
substantively address the viability of her interference claim, and it is clear that as
Coleman’s employer, the MDMR was not a third party to Coleman’s employment
contract. Accordingly, the MDMR is entitled to summary judgment on the claim for
malicious interference with employment.
b. Breach of Duty of Good Faith and Fair Dealing
The MDMR argues that Coleman’s allegations concerning breach of the duty
of good faith and fair dealing are centered around her employment contract.
Because there is no implied duty of good faith and fair dealing in employment
contracts as a matter of Mississippi law, the MDMR cannot breach the duty, and
the claim should be dismissed. Coleman responds that the Mississippi Supreme
Court has indicated a willingness to follow a minority of states that find an implied
duty of good faith and fair dealing in employment contracts.
The controlling case is Cothern v. Vickers, Inc., 759 So. 2d 1241, 1248 (Miss.
2000), in which the Mississippi Supreme Court stated that “[t]his Court has held
that there is no implied duty of good faith and fair dealing in employment
contracts.” The court then acknowledged the opposite minority view, but stated
that the plaintiff would not prevail even if it were to adopt the minority view. Id.
Despite Coleman’s suggestion to do so, this Court has no authority to nudge
Mississippi law toward the minority view. Until the Mississippi Supreme Court
makes a contrary pronouncement, this Court must follow existing law holding that
there is no implied duty of good faith and fair dealing in employment contracts.
Therefore, the MDMR is entitled to summary judgment on the claim for breach of
the duty of good faith and fair dealing.
c. Infliction of Emotional Distress
To maintain a claim for negligent infliction of emotional distress, Coleman
must establish each of the elements of negligence by a preponderance of the
evidence. Williams v. Lowe’s Home Centers, Inc., 2007 WL 391567, at *4 (S.D. Miss.
2007) (citing Miss. Dep’t of Transp. v. Cargile, 847 So. 2d 258, 262 (Miss. 2003)). In
the absence of any actionable claim for negligence against the MDMR, Coleman’s
negligent infliction of emotional distress claim must also fail. Anderson v. Litton
Loan Servicing, LP, No. CIV.A.2:08-CV-245-KS-MTP, 2010 WL 445593, at *5 (S.D.
Miss. Feb. 1, 2010). Having found that Coleman has failed to establish, or raise any
genuine issue of material fact as to the element of duty, the Court finds that
summary judgment in the MDMR’s favor is also warranted on the negligent
infliction of emotional distress claim.
To maintain a claim for intentional infliction of emotional distress, Coleman
must satisfy a very high standard and demonstrate that the MDMR’s conduct was
extreme and outrageous, going beyond all possible bounds of decency. See Brown v.
Inter-City Fed. Bank for Sav., 738 So. 2d 262, 264 (Miss. Ct. App. 1999). Liability
does not extend to “mere insults, indignities, threats, annoyances, or petty
oppressions.” Raiola v. Chevron U.S.A. Inc., 872 So. 2d 79, 85 (Miss. Ct. App. 2004).
Coleman argues that there is sufficient evidence to go to the jury on the issue
of intentional infliction of emotional distress, including whether
DMR, through the acts of its agents and employees, knowingly engaged
in extreme and outrageous conduct in a continuing scheme to
terminate Ms. Coleman on October 9, 2014, in order to punish her for
her September 18, 2014, workers’ compensation lump-sum settlement
for work-related severe depression and mental distress and
deliberately deprive her of a beloved career and livelihood under
circumstances that prevented her from exercising long-held due
process hearing rights and civil service protections she had every
reason to expect after decades of loyal service . . . . Defendant
intentionally used a legislative act enacted to give DMR flexibility in
reforming the agency after a period of criminal mismanagement to,
instead, target and eliminate Ms. Coleman and prevent her from
having any opportunity to answer any charges against her. DMR did
not even offer Ms. Coleman the option of retirement, even though the
agency extended that option to at least one of her male colleagues. . . .
(Pl. Resp. Mem. 25, ECF No. 38).
Although Coleman characterizes the disputes, conflicts and grievances during
her employment as extreme, the Court finds her allegations concern difficulties
arising from personality conflicts. The MDMR appears to have treated Coleman
leniently and accommodated her whenever possible. For example, she was informed
in April 2007 that she would have to move from the Hatchery residence, but
successfully resisted moving for two years. (Pl. Resp. Ex. A 82-84, 96, ECF No. 372). She was given a one year leave of absence to manage her emotional difficulties.
(Id. at 95). After she returned to work and assigned duties she viewed as less
important, she nonetheless received the same salary. (Id. at 115). Her suspicion
that the MDMR used the accountability and reorganization act as an excuse to get
rid of her is just that – a suspicion. There is no evidence of a scheme or ulterior
motive concerning her termination. The accountability and reorganization act
made all MDMR employees terminable at-will, not just those Coleman believes
were more deserving of termination. (See Re: Senate Bill 2579 (2014), Op. Miss.
Att’y Gen. 2014-00206, 2014 WL 3572785, at *1 (Miss. A.G. June 6, 2014) (“The
executive director may make personnel changes without MSPB approval including
termination and reorganization of staff and salary adjustments.”)). The Court finds
that no reasonable jury could find from the evidence produced here that the
MDMR’s conduct and actions were extreme or went beyond all possible bounds of
decency. This claim will be dismissed.
For the reasons discussed above, the Court finds no question of material fact
for the jury in regard to any of Coleman’s claims against the Mississippi
Department of Marine Resources. Accordingly, Coleman’s claims will be dismissed
with prejudice, with the exception of the ADA claim, which is dismissed without
prejudice for lack of jurisdiction.
IT IS THEREFORE ORDERED AND ADJUDGED that the  Motion
for Summary Judgment filed by the Mississippi Department of Marine Resources is
GRANTED. Plaintiff’s Americans With Disabilities Act claim is DISMISSED
WITHOUT PREJUDICE. The remaining claims are DISMISSED WITH
SO ORDERED AND ADJUDGED this the 12th day of September, 2017.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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