Cooksey v. City of Gautier et al
Filing
53
MEMORANDUM OPINION AND ORDER granting 47 Motion for Summary Judgment. Plaintiff Jerry Cooksey's claims against Defendants are Dismissed with Prejudice. Signed by District Judge Halil S. Ozerden on 3/12/2020 (wld)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JERRY COOKSEY
v.
CITY OF GAUTIER and DANTE
ELBIN, in his Official Capacity as
Chief of Police for the City of
Gautier
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PLAINTIFF
Civil No. 1:16cv448-HSO-JCG
DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION [47] FOR SUMMARY JUDGMENT
BEFORE THE COURT is the Motion [47] for Summary Judgment filed by
Defendants, the City of Gautier and Dante Elbin (“Chief Elbin”), in his official
capacity as Chief of Police for the City of Gautier (collectively “the City”). Plaintiff
Jerry Cooksey (“Cooksey”), a former Gautier police officer, brought claims against
Defendants under 42 U.S.C. § 1983 claiming that he reported to Chief Elbin and the
City administration that City employees were committing numerous crimes. Chief
Elbin allegedly responded by demoting Cooksey to a less desirable position, and
Cooksey eventually resigned from his employment with the City. The City and
Chief Elbin maintain that Cooksey released his claims against them when he was
permitted to resign in lieu of termination for sexual harassment.
After due consideration of the record, the submissions on file, and relevant
legal authority, the Court finds that Defendants’ Motion should be granted and
Cooksey’s claims against them should be dismissed with prejudice.
I.
A.
BACKGROUND
Factual background
At all times relevant to this dispute, Jerry Cooksey was employed as a police
officer with the City of Gautier, Am. Compl. [8] ¶ 7, and worked as Captain of
Administration, which according to him was second-in-command to the police chief,
id. ¶ 8. Chief Elbin was the chief of police. See id. ¶ 10. Cooksey alleges that he
learned of criminal acts being committed within the police department, such as
employees fabricating time cards, improperly spending grant funds, and committing
fraud, embezzlement, and tax evasion. Id. ¶ 11-15. Cooksey reportedly informed
Chief Elbin of these criminal acts. Id. ¶ 10.
Cooksey asserts that during the summer of 2015 he informed City Manager
Samantha Abell about the alleged crimes he had reported to Chief Elbin. Id. ¶ 19.
Abell allegedly became irritated with Cooksey and accused him of lying, id., and
reported to Chief Elbin that Cooksey was attempting to undermine him, id. ¶ 22.
Elbin, in turn, admonished Cooksey for reporting to Abell. Id. ¶ 22, 24. Cooksey
was later transferred to the position of Captain of the Patrol Division, which
Cooksey claims was “a demotion which was much less desirable than Captain of
Administration.” Id. ¶ 24.
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In September 2016, City Attorney Josh Danos received two complaints from
Gautier police officers that they had been sexually harassed by Cooksey. Def. Ex. G
[47-7] at 1. Cooksey was immediately placed on administrate leave pending the
completion of the investigation. Id. The investigation, conducted by the new City
Manager Paula Yancy, found that “[t]he actions of Cooksey constitute sexual
harassment, bullying, retaliation, hostile work environment, harassment,
insubordination, conduct unbecoming an officer and discourtesy . . .” and
recommended that Cooksey be fired. Def. Ex. G [47-7] at 8. On October 18, 2016,
Cooksey, through his attorney Keith Miller, declined the City’s request for his
resignation and decided to seek a hearing before the Civil Service Commission. Def.
Ex. H [47-8]. Yancy then executed a termination notice for Cooksey on October 21,
2016. Def. Ex. I [47-8].
Around this time, the Chief of Police for the City of Moss Point contacted
Cooksey and offered him a position in the Moss Point Police Department. Def. Ex.
D [47-4], Cooksey Dep., at 98-99. However, Cooksey was told by his attorney Miller
that he would not be eligible for the position if he was terminated by the City of
Gautier. Id. at 102. Miller also informed Cooksey that the City of Gautier would
allow him to resign in lieu of termination in exchange for signing a hold harmless
agreement. Id. at 103. Cooksey agreed and signed a resignation letter to the City
composed by Miller. Id.; Def. Ex. K [47-11]. Cooksey also executed a hold harmless
agreement which stated:
In exchange for the City accepting my resignation . . . I release and hold
harmless the City from any possible action I might initiate as a result of
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my employment or the circumstances involving the cessation of my
employment. By signing this document, I represent I will not challenge
the circumstances of my separation from the employment of the City,
and hereby waive any legal action I may take, and any claim I may have,
as a result of same.
Def. Ex. A [47-1] at 1. Cooksey has testified in this case that if he had not resigned
from the City and instead pursued an appeal of his termination, he likely would not
have been hired by another law enforcement agency because “even winning the civil
service appeal, another department would not want to take on that chance of hiring
someone who’s been already accused once of this.” Def. Ex. D [47-4], Cooksey Dep.,
at 113.
After his resignation, Cooksey was not ultimately hired by the City of Moss
Point, Am. Compl. ¶ 43, however, he eventually obtained employment with the
Jackson County Sherriff’s Department, Def. Ex. D [47-4], Cooksey Dep., at 114-15.
Cooksey now asserts that the Cities of Gautier and Moss Point conspired to induce
him to waive any possible claims he had against the City of Gautier while also
ensuring that he was not hired by the City of Moss Point. Id. at ¶ 37.
B.
Procedural history
Cooksey filed a Complaint [1] in this Court on December 29, 2016, advancing
claims under 42 U.S.C. § 1983 for deprivation of his freedom of speech. Compl. [1]
at 8. On April 13, 2017, the City of Gautier and Chief Elbin filed an Answer [3],
raising numerous defenses, including that Chief Elbin was entitled to qualified
immunity on the individual capacity claims against him. Answer [3] at 9.
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On September 1, 2017, Cooksey filed an Amended Complaint [8], which is the
operative pleading. The Amended Complaint advances a claim under 42 U.S.C §
1983 styled as a cause of action for “Due process – freedom of speech.” Am. Compl.
[8] at 8. Cooksey alleges that “Defendants retaliated against Cooksey” for
exercising his constitutional right to free speech in complaining of and reporting the
unlawful acts, id., and that Defendants had no good faith basis for the retaliatory
termination, id.
The Amended Complaint seeks a declaratory judgment that Cooksey’s release
of any claims he may have against the City is invalid based on numerous contract
defenses and is a violation of his constitutional rights to free speech and to petition
the government. Id. Cooksey raises a “taxpayer cause of action” on grounds that
Defendants unlawfully expended taxpayer funds in violation of state and federal
law. Id. at 9. Lastly, Cooksey claims that by terminating him for reporting
criminal acts, “Defendants violated Mississippi’s public policy exception to at will
employment.” Id.
Chief Elbin filed a Motion [11] for Summary Judgment, contending that he
was entitled to qualified immunity in his individual capacity. Ultimately, the Court
granted the Motion [11] and dismissed Cooksey’s claims against Chief Elbin in his
individual capacity. See Order [31].
The City 1 has now filed the present Motion [47] for Summary Judgment,
seeking judgment as a matter of law on all of Cooksey’s claims. Def.’s Mem. [48] at
While Chief Elbin is still a party to this suit in his official capacity, a suit against a government
official in his official capacity is treated as though it is a suit against the government entity.
1
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1-2. The crux of the City’s argument is that Cooksey waived any claims that he
may have against the City when he signed the hold harmless agreement. Id. at 1.
The City further maintains that, even if Cooksey did not waive his ability to sue, his
claims are meritless. Id. at 2. In his Response [50], Cooksey asserts that the hold
harmless agreement lacked consideration, was the product of duress, and that the
City breached its duty of good faith and fair dealing. Pl.’s Mem. [50] a 1. Cooksey
did not respond to or address the merits of his 42 U.S.C. § 1983 claim. Id.
II.
A.
DISCUSSION
Legal Standard
Summary judgment is appropriate “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). If the movant carries this burden, “the
nonmovant must go beyond the pleadings and designate specific facts showing that
there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc).
To rebut a properly supported motion for summary judgment, the opposing
party must show, with “significant probative evidence,” that there exists a genuine
issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.
2000). “A genuine dispute of material fact means that evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC&R
Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quotation omitted). If the
Kentucky v. Graham, 473 U.S. 159, 164-66 (1985). Thus, the City and Chief Elbin constitute a single
entity and Cooksey’s claims against them will be treated as claims against the City.
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evidence is merely colorable, or is not significantly probative, summary judgment is
appropriate. Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co., 671
F.3d 512, 516 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986)). In deciding whether summary judgment is appropriate, the Court
views facts and inferences in the light most favorable to the nonmoving party. RSR
Corp. v. Int’l Ins. Co., 612 F.3d 851, 858 (5th Cir. 2010).
B.
Analysis
1.
There can be no genuine dispute of material fact that Cooksey waived his
right to sue the City when he signed the release, waiver, and hold harmless
agreement.
Both parties agree that when Cooksey resigned his position, he signed a hold
harmless agreement which released the City from all claims Cooksey may have had
regarding his employment or the cessation of his employment. See Def.’s Mem. [48]
at 13; Pl.’s Mem. [50] at 10-12. The City contends that the hold harmless
agreement is valid and bars Cooksey from bringing the claims he raises in this
lawsuit. Def.’s Mem. [48] at 14. Cooksey argues that the hold harmless agreement
is not enforceable and summary judgment should be denied on the grounds that the
hold harmless agreement i) lacked consideration; ii) was signed under duress; and
iii) because the City breached the duty of good faith and fair dealing. Pl.’s Mem.
[50] at 10-12.
The parties do not dispute that Mississippi law controls the outcome on this
issue. Commonwealth Land Title Ins. Co. v. Encore Credit Corp., No. 1:08cv37,
2009 WL 10722164, at *2 (S.D. Miss. Apr. 16, 2009) (applying Mississippi contract
law when both parties rely on it in their memoranda); Def. Mem. [48] at 14
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(applying Mississippi contract law to the hold harmless agreement); Pl. Mem. [50]
at 10 (same). “A contract exists under Mississippi law where there are (1) two or
more contracting parties, (2) consideration, (3) an agreement that is sufficiently
definite, (4) the parties have the legal capacity to make a contract, (5) mutual
assent and (6) no legal prohibition precluding contract formation.” Palmer v. Sec.
Life Ins. Co. of Am., 189 F. Supp. 2d 584, 589 (S.D. Miss. 2001) (citing Hunt v.
Coker, 741 So. 2d 1011, 1015 (Miss. Ct. App. 1999)); see also Ramsey v. GeorgiaPacific Corp., 511 F. Supp. 393, 406 (S.D. Miss. 1981) (applying Mississippi contract
law in determining validity of hold harmless agreement).
Courts apply the “four corners” test when interpreting a clear and
unambiguous contract “wherein the reviewing court looks to the language that the
parties used in expressing their agreement.” Royer Homes of Miss. Inc. v.
Chandeleur Homes, Inc., 857 So. 2d 748, 752 (Miss. 2003). Because the Court finds
that there can be no genuine dispute of material fact about whether the hold
harmless agreement between Cooksey and the City is enforceable, the agreement
should be enforced, and Cooksey’s claims are barred by the agreement.
a.
Consideration
According to Cooksey, the agreement is unenforceable because it lacked
consideration. Pl.’s Mem. [50] at 10. Cooksey maintains that he was originally
offered the opportunity to resign without signing a hold harmless agreement but
was later told that his resignation was dependent upon signing such an agreement.
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Id. at 10-11. Cooksey argues that he was not given additional consideration in
exchange for executing the hold harmless agreement, making it void. Id.
The Mississippi Supreme Court has held that “[a]ll that is needed to
constitute a valid consideration to support an agreement or contract is that there
must be either a benefit to the promisor or a detriment to the promissee.” Theobald
v. Nosser, 752 So. 2d 1036, 1040 (Miss. 1999). New or additional consideration is
required only to modify an existing written contract. Lafayette Steel Erectors, Inc. v.
Roy Anderson Corp, 71 F. Supp. 2d 582, 586 (S.D. Miss. 1997) (citing Iuka Guar.
Bank v. Beard, 658 So. 2d 1367, 1372 (Miss. 1995)). The agreement in this case
states that Cooksey was under internal investigation at the time he signed it. Def.
Ex. A [48-1] at 1. It further explains that the City offered Cooksey the opportunity
to resign before the investigation concluded. Id. In exchange for the chance to
resign, Cooksey agreed to:
release and hold harmless the City from any possible action [Cooksey]
might initiate as a result of [his] employment or the circumstances
involving the cessation of [his] employment.
Id. In other words, Cooksey, the promisor, gained a benefit from agreeing to hold
the City harmless from any possible claims in that he was permitted to resign
before the City finished its internal investigation against him. This is sufficient
consideration on its face to support the enforceability of the agreement. Theobald,
752 So. 2d at 1040.
It is undisputed that the hold harmless agreement signed by Cooksey is the
only written agreement between the parties. Cooksey does not allege that this
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written contract was later modified without additional consideration. Instead,
Cooksey argues that the hold harmless agreement changed the terms of a previous
oral understanding he had reached with the City. Even if this were true, the
requirement of additional consideration only applies to the modification of written
contracts already in existence. Lafayette Steel Erectors, Inc., 71 F. Supp. 2d at 586.
Therefore, new or additional consideration was not necessary for the hold harmless
agreement to be enforceable.
b.
Duress
Next, Cooksey claims that the agreement is invalid because he entered into it
under duress. Pl.’s Mem. [50] at 11. Cooksey asserts that if he had not signed the
hold harmless agreement and resigned, he would have been ostracized by the law
enforcement community and unable to find a new job. Id. He argues that because
he signed the agreement in order to escape the consequences of the City’s
investigation of him, the agreement was the product of duress. Id.
A contract may be voided on grounds of duress when “[a] dominant party . . .
conducts himself or herself in a manner that overrides the volition of the weaker
party.” Estate of Davis v. O’Neill, 42 So. 3d 520, 525 (Miss. 2010). “But duress
cannot be established with mere insistence by one party of a legal right to which the
other party yields.” Id.; see also Patterson v. Merchs. Truck Line, Inc., 448 So. 2d
288, 291 (Miss. 1984) (“It is never duress to threaten to do that which a party has a
legal right to do . . .”) (quotation omitted). Here, Cooksey contends that he was
coerced into signing the hold harmless agreement by the City’s threat to make an
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official finding regarding the internal investigation into the sexual harassment
allegations against him. Pl.’s Mem. [50] at 11; Def. Ex. A [47-1] at 1. However, the
City had a right to investigate its employees in response to sexual harassment
allegations and to make appropriate findings based upon those investigations. See
Hall v. Bd. of Trs. of State Insts. of Higher Learning, 712 So. 2d 312, 323-24, 326
(Miss. 1998) (approving a public employer’s decision to investigate sexual
harassment claims against an employee due to “the seriousness of the charge and
the potential liability” to the employer). Thus, the City’s actions cannot form the
basis of a duress defense to contract formation.
Cooksey also argues that the sexual harassment allegations against him were
false and designed to force him to resign. Pl. Mem. [50] at 11. Under this theory,
Cooksey was coerced into signing the hold harmless agreement because the City
threatened to release the findings of a fabricated investigation. Id. While Cooksey
claims that the allegations against him are “vigorously disputed,” he offers
insufficient evidence to support his contention. 2 As such, Cooksey has failed to
carry his summary judgment burden in showing that he was under duress when he
signed the hold harmless agreement because of a false investigation. See Forsyth v.
To support this claim, Cooksey only offers testimony from another officer in the Gautier Police
Department that a sexually harassing phrase which Cooksey was found to have used was also used
by “eighty, ninety percent” of the other officers in the department. Pl. Ex. G [50-7], p. 26. However,
the sexual harassment investigation against Cooksey was not based on this single phrase but several
allegations of sexually harassing conduct. Def. Ex. G [47-7] at 2. Cooksey also offers evidence that
two male employees were not punished by the City when they were found to have sexually harassed
female employees. Pl. Ex. F [50-6], p. 23-24; Pl. Ex. D [50-4], p. 38-39. Cooksey does not offer any
other evidence regarding these alleged incidents, and he has not addressed the fact that the City’s
investigation concluded that Cooksey had not only sexually harassed another officer but had also
“violated numerous provisions and pages of the [Standing Operating Procedure],” any one of which
“would constitute grounds for termination.” Def. Ex. G [47-4] at 8.
2
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Barr, 19 F.3d 1527, 1533 (5th Cir. 1994) (“Unsubstantiated assertions are not
competent summary judgment evidence.”).
Further, the circumstances surrounding the execution of the agreement do
not indicate duress. It is undisputed that Cooksey was represented by an attorney,
Keith Miller, throughout his negotiations with the City. Def. Ex. D [47-4] at 111-17;
Def. Ex. H. Cooksey also testified that he understood the terms of the agreement,
specifically that he was being allowed to resign in lieu of termination in exchange
for waiving any possible claims that he may have against the City. Def. Ex. D [474] at 111-14. In fact, it was Cooksey and his attorney who asked the City for the
option to resign. Id. at 102-03. Thus, the undisputed material facts in the record
lead the Court to conclude that the circumstances under which Plaintiff signed the
hold harmless agreement did not constitute duress. See Limbert v. Miss. Univ. for
Women Alumnae Ass’n, Inc., 998 So. 2d 993, 999 (Miss. 2008) (finding no duress
where both parties were represented by counsel, negotiated an agreement, and
understood the agreement).
c.
Breach of good faith and fair dealing
Finally, Cooksey argues that the hold harmless agreement is not enforceable
because the City breached its duty of good faith and fair dealing. Pl.’s Mem. [50] at
11. He maintains that the sole purpose of the agreement was to allow Cooksey to
make a lateral transfer to the Moss Point Police Department. Id. Because the City
did not ultimately inform Moss Point officials that Cooksey was available for a
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lateral transfer, he was not hired there, frustrating the purpose of the agreement
and breaching the City’s duty of good faith and fair dealing. Id. at 11-12.
Cooksey’s allegations, even if true, would not impair the enforceability of the
hold harmless agreement. “The appropriate remedy for the breach of the covenant
of good faith is the measure of expectancy type damages.” Cenac v. Murry, 609 So.
2d 1257, 1273 (Miss. 1992). Therefore, even if the City had breached its duty under
the hold harmless agreement, it would owe contract damages but this would not
rescind the agreement. Id. at 1273-74. Further, the City’s alleged breach of this
duty would constitute a separate cause of action which Cooksey has pleaded for the
first time in his Response [50] to this Motion. When a plaintiff raises a cause of
action for the first time in response to a dispositive motion, the Court may construe
the argument as a motion to amend the pleadings under Rule 15 of the Federal
Rules of Civil Procedure. Sherman v. Hallbauer, 455 F.2d 1236, 1242 (1972). Here,
the Court has considered Cooksey’s claim for breach of good faith and fair dealing
and finds that the City has met its summary judgment burden. Stover v.
Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 2008) (finding no error
where district court considered plaintiff’s claim asserted for the first time in
response to defendant’s motion for summary judgment).
Under Mississippi law, “all contracts contain an implied covenant of good
faith and fair dealing in performance and enforcement.” Cenac, 609 So. 2d at 1272.
The Mississippi Supreme Court has defined a breach of the good faith covenant as
“bad faith characterized by some conduct which violates standards of decency,
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fairness or reasonableness.” Id. Even though a party does not violate an express
provision of an agreement, he may still breach his duty of good faith if his conduct
undermines the parties’ justifiable expectations “that the contract will be performed
in a manner consistent with its ‘agreed purpose.’” Jones v. Miss. Insts. of Higher
Learning, 264 So. 3d 9, 20-21 (Miss. Ct. App. 2018), cert. denied, 263 So. 3d 666
(Miss. 2019); see also Cenac, 609 So. 2d at 1272 (“Good faith is the faithfulness of an
agreed purpose between two parties, a purpose which is consistent with justified
expectations of the other party.”).
The City argues that it did not breach its duty of good faith because
facilitating Cooksey’s transfer to the Moss Point Police Department was not the
agreed-upon purpose of the hold harmless agreement. Def.’s Reply [52] at 5. It
contends that Cooksey’s transfer could not have been the purpose of the contract
because the hold harmless agreement is completely silent regarding Cooksey’s
prospective employment. Id.; Def. Ex. A [47-1]. Further, Cooksey testified that he
knew the agreement did not mention his possible employment with Moss Point and
that the City did not make any promises to him not included in the agreement. Def.
Ex. D [47-4] at 116-18. Finally, Cooksey understood that only the Moss Point Board
of Aldermen had the authority to hire him as a police officer and that it was under
no obligation to do so. Def. Ex. D [47-4] at 106-07.
Cooksey nevertheless offers two pieces of evidence which he asserts show that
his transfer to the Moss Point Police Department was the “entire purpose of the
agreement.” Pl.’s Mem. [50] at 12. First, Cooksey argues that an email exchange
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between his attorney, Keith Miller, and the City’s attorney, Joshua Danos,
demonstrates that Chief Dante Elbin was responsible for informing the City of Moss
Point that Cooksey was eligible for a transfer. 3 Pl. Ex. I [50-9]. Second, Cooksey
highlights Chief Elbin’s deposition during which he testified that he did not inform
anyone in Moss Point that Cooksey had resigned and was free to transfer there. Pl.
Ex. D [50-4]. According to Cooksey, the email exchange coupled with Chief Elbin’s
testimony make it clear that the City knew that the purpose of the agreement was
for Cooksey to transfer to Moss Point and, by not informing Moss Point of Cooksey’s
resignation, the City frustrated that purpose. Pl.’s Mem. [50] at 11-12.
Viewing this evidence in the light most favorable to Cooksey as the
nonmoving party, he cannot survive summary judgment. Even if the underlying
purpose of Cooksey’s resignation was to facilitate a transfer to the Moss Point Police
Department, it was not justifiable for Cooksey to expect the City to secure him a
transfer. In Crosby Mem’l Hosp. v. Abdallah, the Fifth Circuit found that the
defendant did not breach its duty of good faith when the plaintiff was unjustified in
her expectations. No. 01-60329, 2002 WL 31016466, at*13 (5th Cir. Aug. 13, 2002).
In that case, a pediatrician was recruited by a hospital to practice in rural
Mississippi because of the severe shortage of doctors in the area. Id. When the
hospital recruited more doctors to the same location, the pediatrician claimed that
the hospital was breaching its duty of good faith because she did not expect it to
In an email to Josh Danos, Keith Miller asks him to inform a Moss Point Alderman, Wayne
Lennep, that Mr. Cooksey was not terminated by the City. Pl. Ex. I [50-9] at 1. Josh Danos replied
“I want you to know I had the Chief relay that information to multiple people prior to the meeting.”
Id.
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hire more doctors and dilute the healthcare market. Id. The court concluded that
the pediatrician’s expectations were unjustified because the hospital did not
promise to stop hiring more doctors and the pediatrician should have known that
the hospital would continue to recruit physicians to an underserved area. Id.
Similarly, Cooksey’s expectations that the City would gain him employment
in Moss Point by way of lateral transfer were not justified. Cooksey acknowledged
in his deposition that the City did not (and could not) promise him any employment
in Moss Point. Def. Ex. D [47-4] at 116-18. Cooksey knew that only the Moss Point
Board of Aldermen had the authority to hire him as a police officer, id. at 106-07,
and because he knew this it was unjustifiable for him to expect the City of Gautier
to secure his employment. Thus, the City did not breach any duty of good faith
when it did not inform Moss Point that Cooksey was eligible for a transfer.
Cooksey has also failed to allege any conduct on behalf of the City that would
rise to the level of bad faith. In Cenac, the leading Mississippi case on the implied
covenant of good faith, the plaintiffs’ lives were made “a living hell” by the
defendant’s “abusive, aberrant, intimidating, [and] harassing behavior.” Cenac, 609
So. 2d at 1257. Cooksey, on the other hand, is claiming only that the City did not
tell Moss Point that he was eligible for a transfer when it allegedly agreed that it
would. This conduct, even if true, does not rise to the level of bad faith
contemplated by Cenac. See Stewart v. GMAC Mortg., LLC, No. 2:10cv149, 2011
WL 1296887, at *5 (S.D. Miss. Mar. 31, 2011) (“Defendants . . . are alleged merely to
have failed to follow through on verbal promises . . . this behavior does not appear
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to be so egregious as to amount to a breach of the duty of good faith and fair
dealing.”). Even if Cooksey could show that the City may have been negligent, this
is not the “conscious wrongdoing motivated by any dishonest purpose” required to
support a breach of good faith claim. Montgomery v. CitiMortgage, Inc., 955 F.
Supp. 2d 640, 653 (S.D. Miss. 2013); see also Teeuwissen v. JP Morgan Chase Bank,
N.A., 902 F. Supp. 2d 826, 827 (S.D. Miss. 2011) (holding that the defendant’s
merely negligent conduct could not breach the implied covenant of good faith). The
Court finds that the City is entitled to judgment as a matter of law on this claim.
2.
Cooksey has waived his § 1983 claim against the City because he failed to
address it in his response to the City’s motion.
In his Amended Complaint, Cooksey advances a cause of action under 42
U.S.C. § 1983 against the City for violating his right to freedom of speech. Am.
Compl. [8] at 8. The City argues in its Motion [48] for Summary Judgment that
Cooksey’s § 1983 claim should be dismissed because he has failed to produce
sufficient evidence that his alleged statements constituted protected speech. Def.’s
Mem. [48] at 18.
The Court finds that the City has carried its initial summary judgment
burden on this issue. Cooksey did not respond to or address the City’s argument in
his Response [50] and has not carried his burden in rebutting the City’s properly
supported Motion. Summary judgment is appropriate for this reason. See also
Kennan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002) (“If a party fails to assert a
legal reason why summary judgment should not be granted, that ground is waived .
. .”); Balder v. Lavin, No. 2:16cv130, 2018 WL 2976105, at *3 (S.D. Miss. June 13,
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2018) (dismissing plaintiff’s claim and finding it waived when plaintiff failed to
argue why summary judgment should not be granted). The Court finds that the
City carried its initial summary judgment burden on this claim, and in response
Cooksey has not offered any legal reason why summary judgment should not be
granted.
III.
CONCLUSION
IT IS THEREFORE, ORDERED AND ADJUDGED that, the Motion [47]
of Defendants City of Gautier and Dante Elbin, in his official capacity as Chief of
Police, for Summary Judgment is GRANTED. Plaintiff Jerry Cooksey’s claims
against Defendants are DISMISSED WITH PREJUDICE. The Court will enter a
separate Final Judgment in accordance with Federal Rule of Civil Procedure 58.
SO ORDERED this the 12th day of March, 2020.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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