Lott v. Forrest County, Mississippi et al
Filing
80
ORDER denying Defendants Chief Deputy Charles Bolton and Sergeant Andrea Estrada's 54 Motion for Summary Judgment; and granting in part and denying in part Defendant Forrest County, Mississippi's 56 Motion for Summary Judgment. Defend ant Forrest County's motion is granted as to the following claims: First Amendment retaliation under 42 U.S.C. Section 1983 with respect to Lott's transfer; race discrimination under 42 U.S.C. Section 1981 and Title VII; racial harassment under 42 U.S.C. Section 1981 and Title VII; retaliation under 42 U.S.C. Section 1981 and Title VII with respect to Lott's suspension and termination and wrongful discharge. It is denied as to the following claims, which remain pending: First Am endment retaliation under 42 U.S.C. Section 1983 with respect to Lott's suspension and termination, and retaliation under 42 U.S.C. Section 1981 and Title VII with respect to Lott's transfer. Signed by District Judge Keith Starrett on November 10, 2015 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
RHONDA D. LOTT
PLAINTIFF
v.
CIVIL ACTION NO. 2:14-CV-131-KS-MTP
FORREST COUNTY, MISSISSIPPI
(same entity as Sheriff of Forrest County,
Mississippi in his official capacity);
CHIEF DEPUTY CHARLES BOLTON,
in his individual capacity; and
SERGEANT ANDREA ESTRADA
in her individual capacity
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matters is before the Court on Defendants Chief Deputy Charles Bolton (“Bolton”)
and Sergeant Andrea Estrada’s (“Estrada”) Motion for Summary Judgment [54] and Defendant
Forrest County, Mississippi’s (same entity as Sheriff of Forrest County, Mississippi, in his
official capacity) (the “County”) Motion for Summary Judgment [56]. After reviewing the
submissions of the parties, the record, and the applicable law, the Court finds that Bolton and
Estrada’s Motion for Summary Judgment [54] should be denied, and that the County’s Motion
for Summary Judgment [56] should be granted in part and denied in part.
I. BACKGROUND
On August 19, 2014, Plaintiff Rhonda D. Lott (“Lott”) brought this action against the
County, Bolton, and Estrada (collectively “Defendants”). Lott claims Defendants retaliated
against her in response to testimony she gave in the Ware-DuPree election contest trial.
Lott began working as a corrections officer with the Forrest County Sheriff’s Department
in August 2012, and was assigned to work in booking. (Lott Depo. [67-1] at p. 37.) She testified
in the Ware-DuPree trial on July 29, 2013. (See Trial Transcript [67-8] at p. 1.) In her testimony,
she stated that she had overheard a phone conversation between Bolton and Estrada in which they
discussed making Samuel Lindsey “pay” for his testimony in the Ware-DuPree trial. (Id. at p. 5.)
Immediately after her testimony, Lott claims she was treated differently at work by Bolton and
Estrada. (Lott Depo. [67-1] at p. 64, 85-87; see also Cooley Depo. [69-10] at p. 24.) Some of
this treatment, she claims, was racially charged.
After her complaints about her treatment went ignored by the ordinary chain-ofcommand, Lott filed her first complaint with the Equal Employment Opportunity Commission
(“EEOC”) on October 23, 2013. (Lott Depo. [67-1] at pp. 85-87.) After Estrada’s conduct
continued, Lott was transferred to Female 101, where her duties consisted of “sit[ting] on a tower
. . . watch[ing] cameras, mak[ing] sure there’s no activity, do[ing] head counts, feed[ing], tak[ing]
to the nurse’s station, [and] things of that nature.” (Id. at 90-91.) This transfer was done to “keep
the peace” according to Captain Donnell Brannon (“Captain Brannon”), who was in charge of
administration at the jail. (Brannon Depo. [67-7] at pp. 26-27.)
On August 1, 2014, Lott got into a verbal altercation with Brandy James, the girlfriend of
fellow corrections officer Crystal Easterling, at a bar called Our Place Bar and Grill. Neither
James nor Easterling filed any complaint about Lott’s behavior. (James Depo. [67-19] at p. 11;
Easterling Depo. [67-21] at p. 12.) Bolton instructed Michael Reils (“Reils”) to conduct an
investigation on the matter, instructing him to speak with Estrada to receive the initial
information about what he was to investigate. (Reils Depo. [54-16] at pp. 4-5.) Estrada told
Reils that all employees at the bar had agreed to not let the chain-of-command know about the
incident. (Id. at pp. 14-16.) Reils testified that Estrada was the sole source of his information
and that she never disclosed to him who, if anyone, had complained about the incident at the bar
in the first place. (Id. at pp. 16, 27.) Sheriff Billy McGee (“Sheriff McGee”) made the final
decision to suspend Lott and everyone else at the bar pending the investigation results. (McGee
Depo. [67-3] at p. 13.) Lott was notified of her suspension without pay on August 8, 2014. (Lott
Depo. [67-1] at pp. 20.)
On September 16, 2014, Lott was notified by mail that she was terminated from her
employment. (Id. at pp. 21.) Sheriff McGee testified that this decision was made because her
conduct at the bar was unbecoming of an officer. (McGee Depo. [67-3] at pp. 14-15.) Lott filed
a second complaint with the EEOC after she was terminated.
II. DISCUSSION
A.
Standard of Review
Federal Rule of Civil Procedure 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). “Where the burden of
production at trial ultimately rests on the nonmovant, the movant must merely demonstrate an
absence of evidentiary support in the record for the nonmovant’s case.” Cuadra v. Houston
Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (citation and internal quotation marks
omitted). The nonmovant must then “come forward with specific facts showing that there is a
genuine issue for trial.” Id. “An issue is material if its resolution could affect the outcome of the
action.” Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir.
2010) (quoting Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). “An issue
is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict for the
nonmoving party.” Cuadra, 626 F.3d at 812 (citation omitted).
The Court is not permitted to make credibility determinations or weigh the evidence.
Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v. Baylor Richardson
Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding whether a genuine fact issue
exists, “the court must view the facts and the inferences 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) (citation omitted). Summary
judgment is mandatory “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d 759, 766 (5th Cir.
2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986)).
B.
Bolton and Estrada’s Motion for Summary Judgment [54]
Lott has withdrawn all claims against Bolton and Estrada except for her claims under 42
U.S.C. § 1983 and her state law claim of malicious interference with employment. The Court
will examine both of these claims in turn.
1.
First Amendment Retaliation Claim under 42 U.S.C. § 1983
Bolton and Estrada contend that they are entitled to summary judgment under Lott’s
§ 1983 claim based on qualified immunity because Lott’s constitutional rights were not violated
and because their conduct was objectively reasonable in light of clearly established legal rules.
Their contention that they acted objectively reasonably is a conclusion they reach based on the
fact that they believe that Lott’s constitutional rights were not violated. Therefore, to defeat
summary judgment, Lott must show that a genuine dispute of fact exists as to whether her
constitutional rights were violated.
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Lott’s claim under 42 U.S.C. § 1983 is a First Amendment retaliation claim. Lott argues
that Bolton and Estrada’s retaliated against her in response to her testimony in the Ware-DuPree
election contest. For a First Amendment retaliation claim to go forward, Lott “must show: (1)
[she] suffered an adverse employment action; (2) the speech at issue involved matters of public
concern; (3) [her] interest in the speech outweighs the government’s interest in efficiency; and (4)
the speech precipitated the adverse employment action.” Alexander v. Eeds, 392 F.3d 138, 142
(5th Cir. 2004).
a.
Adverse Employment Action
Lott claims that the adverse employment actions she suffered were her transfer to Female
101, her suspension, and her termination. Bolton and Estrada do not argue that her suspension
and termination were not adverse employment actions, but do protest the label being applied to
her transfer. The Fifth Circuit has held that a transfer can be an adverse employment “if the new
position proves objectively worse—such as being less prestigious or less interesting or providing
less room for advancement.” Sharp v. City of Houston, 164 F.3d 923, 934 (5th Cir. 1999). A
transfer will not be deemed an adverse employment action when there is no evidence that makes
an “objective showing of a loss in compensation, duties, or benefits.” Pegram v. Honeywell, Inc.,
361 F.3d 272, 283 (5th Cir. 2004). There must be some offered evidence other than the
plaintiff’s “subjective beliefs.” Jenkins v. Cit of San Antonio Fire Dep’t, 784 F.3d 263, 268 (5th
Cir. 2015).
Lott argues that the new position in Female 101 was objectively less interesting than her
position in the booking office. In the booking position, Lott “did all the initial paperwork,
booked the person in, dressed them out and got them ready to go back” as well as entering in the
court paperwork into the computer upon release. (Lott Depo. [69-1] at 90.) In contrast, Lott
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testified that in Female 101 “you basically just sit on a tower” and “watch cameras, make sure
there’s no activity, do head counts, feed, take to the nurse’s station, [and] things of that nature.”
(Id. at 90-91.) Her evidence that the position was objectively worse is more than just testimony
of her subjective belief. She points to specific duties which were taken away from her. Though
the difference in duties may not be as drastic and obvious as the lost duties in Sharp, where the
plaintiff was transferred “from the elite Mounted Patrol to a teaching post at the Police
Academy,” construing all evidence in the light most favorable to Lott, a jury could find that the
duties Lott lost were enough to make the position “objectively worse” than her previous position.
164 F.3d at 933; see also Sierra Club, Inc., 627 F.3d at 138. Therefore, they are not entitled to
summary judgment based on this element of Lott’s claim.
b.
Matter of Public Concern
Bolton and Estrada dispute only that Lott’s EEOC complaint was a matter of public
concern. Lott, however, argues that the speech that caused the retaliation was her testimony in
the Ware-DuPree election contest. Bolton and Estrada have put forth no argument that this was
not a matter of public concern. The Court assumes, then, that Bolton and Estrada have conceded
that Lott’s testimony was a matter of public concern for purposes of their motion for summary
judgment.
c.
Lott’s Interest Outweighed Efficiency Interests
Bolton and Estrada have put forth no argument that any governmental efficiency interest
outweighs Lott’s interest in free speech on matters of public concern. Because they have not
identified any efficiency interests of the government that their actions served, the Court is unable
to balance Lott’s interest against the government’s and will therefore assume Bolton and Estrada
have conceded this element is met.
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d.
Speech Precipitated Adverse Employment Action
Bolton and Estrada argue that Lott’s transfer, suspension, and termination were not
caused by her testimony in the Ware-DuPree contest. Bolton and Estrada claim that Lott’s
transfer was to “keep the peace” after her EEOC complaint was filed, and that her suspension
termination were in response to an altercation she was involved in at a bar and were decisions in
which they took no part. For First Amendment retaliation claims, “once the employer offers a
legitimate, nondiscriminatory reason that explains both the adverse action and the timing, the
plaintiff must offer some evidence from which the jury may infer retaliation was the real motive.”
Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997).
Bolton and Estrada contend that, in so far as the transfer could be considered an adverse
employment action, their actions could not have been said to cause it because the transfer was in
response to Lott’s EEOC complaint and was meant to “keep the peace” between her and Estrada.
(Memo. in Support [55] at p. 12.) Lott argues, though, that the EEOC complaint did not impact
how she was treated by Estrada. (Lott Depo. [69-1] at p. 86.) Lott contends that Estrada began
retaliating against her testimony in the Ware-DuPree trial immediately, and that this treatment
was what prompted the eventual transfer to “keep the peace.” (Id. at p. 64, 85-87; see also
Cooley Depo. [69-10] at p. 24.) Additionally, Bolton and Estrada themselves appear to concede
for the sake of their motion that Bolton played a part in the decision to transfer Lott to Female
101. (Memo. in Support [55] at p. 12.) Therefore, a reasonable jury could find that Bolton and
Estrada both were the but-for cause of Lott’s transfer.
Bolton and Estrada also argue that because neither of them were involved in the
investigation or the final decision to suspend or terminate Lott, their actions cannot be said to
have caused her suspension or termination. However, Bolton and Estrada admit that Bolton was
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the one who requested an investigation be conducted by Reils. (Memo. in Support [55] at p. 12.)
Reils testified that Bolton instructed him to speak with Estrada to receive the initial information
about what he was to investigate. (Reils Depo. [54-16] at pp. 4-5.) Furthermore, Reils stated that
Estrada never disclosed to him who had complained about the incident at the bar in the first
place. (Id. at p. 27.) There seems to be enough evidence, then, for a reasonable jury to infer that
the investigation would not have occurred but-for the actions of Bolton and Estrada. That the
actual suspension and termination decisions were made by Sheriff McGee, a party to this suit in
his official capacity, does not negate the fact that the decisions would not have been before him
but-for the investigation that was instigated by Bolton and Estrada.
Even if Bolton and Estrada’s arguments were accepted as legitimate, nondiscriminatory
reasons explaining the adverse employment actions, Lott has met her burden in adducing some
evidence from which a reasonable jury could infer retaliation as the real motive. It is undisputed
that Lott’s testimony in the Ware-DuPree controversy implicated both Bolton and Estrada. (Trial
Transcript [69-8].) Both Lott and Cooley testified that she was treated differently immediately
after this testimony was given. (Lott Depo. [69-1] at p. 64; Cooley Depo. [69-10] at p. 24.)
Cooley also claims that Estrada made threatening remarks that she was going to “get” Lott,
though she did not specifically name her. (Cooley Depo. [69-10] at pp. 18-19.) In her
deposition, Lott contends that she filed the EEOC complaint because of the on-going treatment
she had been receiving and the lack of response by those in the official chain-of-command when
she tried to bring it to their attention. (Lott Depo. [69-1] at pp. 85-87.) Cooley and Lott both
point out specific examples of Lott’s mistreatment by Estrada in the months after her testimony
and leading up to her eventual termination. (See Lott Depo. [69-1] at pp. 82-88, 119; Cooley
Depo. [69-10] at pp. 34-37, 39-42.) Furthermore, Lott has put forward evidence showing that the
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altercation in the bar occurred while she was off duty and involved only an exchange of words
and gestures with the girlfriend of another sheriff department employee and did not involve any
violence. (James Depo. [69-19] at pp. 7-11; Easterling Depo. [69-21] at pp. 9-14.) She has also
put forth evidence of off-duty conduct by other sheriff department employees which produced
neither suspension nor termination. (McGee Depo [69-3] at pp. 17-21.) This evidence, construed
in a light most favorable to Lott as the nonmovant, is enough that a reasonable jury could infer
that the adverse employment actions she suffered were in retaliation of her testimony in the
Ware-DuPree election contest. See Sierra Club, Inc., 627 F.3d at 138.
Because Lott has presented evidence to support her contention that her testimony caused
her transfer, suspension, and termination, this is a genuine factual dispute and summary judgment
is not appropriate on this element of her claim.
Finally, Bolton and Estrada attempt to invoke res judicata in their rebuttal, arguing that
because Lott failed to appeal her termination in the time departmental policy afforded her, her
claim is barred. Though this argument is not properly before the Court, as it was stated only in
the defendants’ rebuttal, even if it were, it would not be persuasive. See Gillaspy v. Dallas Indep.
Sch. Dist., 278 F.App’x 307, 315 (5th Cir. 2008). Res judicata is only a defense when there has
been a final judgment on the merits “rendered by a court of competent jurisdiction.” Ellis v.
Amex Life Ins. Co., 211 F.3d 935, 937 (5th Cir. 2000). A failure to file an administrative appeal
within the sheriff’s department involves neither a court of competent jurisdiction nor a final
judgment on the merits. Therefore, res judicata does not apply.
Since Lott has produced evidence to support each element of her retaliation claim, the
Court denies Bolton and Estrada’s Motion for Summary Judgment [54] with respect to Lott’s
claim of First Amendment retaliation under 42 U.S.C. § 1983.
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2.
Malicious Interference with Employment
Bolton and Estrada argue that Lott’s state claim of malicious interference with
employment must be dismissed against them because the claim is governed by the Mississippi
Tort Claims Act (MTCA), which bars claims based on discretionary duties. Section 11-46-9 of
the MTCA states
(1) A governmental entity and its employees acting within the course and scope of
their employment or duties shall not be liable for any claim:
...
(d) Based upon 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). If Lott were suing Bolton and Estrada because they
recommended she be fired, an arguable discretionary function of their jobs as her supervisors,
they may be correct that the MTCA precludes her claim. However, while Lott may be claiming
that her injury was her termination, among other things, she is not suing Bolton and Estrada for
firing her. The acts on which Lott bases her malicious interference with employment claim are
the harassment and false reports that made her job more difficult and eventually culminated in her
termination after the incident at the bar. The allegedly false write-ups are covered by § 11-46-9,
as disciplining employees would be a discretionary function of Bolton and Estrada’s job
functions as supervisors. Even if they were false and an abuse of discretion, a claim could not be
brought for these actions. Miss. Code Ann. § 11-46-9(1)(d). However, Lott alleges other
actions, such as disrespectful comments and threats, refusing to address Lott directly, and telling
other supervisors to stay away or make things up about her, that made her job more difficult and
fell outside of Bolton and Estrada’s official job duties. As they make no argument that these
10
actions are not sufficient to support a malicious interference with employment claim, Bolton and
Estrada will not be granted summary judgment on the theory that they were fulfilling the
discretionary duties of their jobs.
Bolton and Estrada also contend that the MTCA bars employment claims altogether,
citing Blackston v. Epps as support. 95 So.3d 667 (Miss. Ct. App. 2011). Blackston states that
“[a government] employee is not liable personally as long as their conduct falls within the course
and scope of employment and does not otherwise constitute fraud, malice, libel, slander,
defamation, or a crime.” Id. at 669 (citations omitted). Bolton and Estrada make no argument in
support of their motion that the actions Lott contends give rise to this claim were not malicious in
nature, other than to state in a conclusory nature that Lott has only alleged this as a conclusion.
However, given the nature of the acts evidenced in the record, the Court finds that a reasonable
jury could infer malice. Therefore, Lott’s claim of malicious interference with employment is not
barred by the MTCA.
The Court does not decide whether Lott has adduced enough evidence to support each
element of her claim for malicious interference with employment because Bolton and Estrada
have put forward no arguments in their original motion that she has not. The Court therefore
denies Bolton and Estrada’s Motion for Summary Judgment [54] as to this claim.
C.
The County’s Motion for Summary Judgment [56]
1.
First Amendment Retaliation Claim under 42 U.S.C. § 1983
A First Amendment retaliation claim under 42 U.S.C. § 1983 requires a showing that “(1)
[Lott] suffered an adverse employment action; (2) the speech at issue involved matters of public
concern; (3) [her] interest in the speech outweighs the government’s interest in efficiency; and (4)
11
the speech precipitated the adverse employment action.” Alexander v. Eeds, 392 F.3d 138, 142
(5th Cir. 2004).
a.
Adverse Employment Action
Lott argues that her transfer, suspension, and termination were all adverse employment
actions. The County does not dispute that her suspension and termination were adverse
employment actions, but contends that her transfer was not. The County’s arguments are
indistinguishable from those made by Bolton and Estrada in their motion. The only additional
argument put forth by the County is the fact that Lott’s title did not change with her transfer. The
Court does not find this fact to be decisive. Therefore, for the reasons stated above, the Court
finds that when all the evidence is construed in the light most favorable to Lott, a jury could find
that the duties she lost were enough to make the position “objectively worse” than her previous
position, making her transfer an adverse employment action. See supra Part B.1.a.
b.
Matter of Public Concern
The Supreme Court has articulated a two-step inquiry to determine when a public
employee’s speech is protected by the First Amendment: 1) the speech must be made as a citizen
and 2) it must be on a matter of public concern. Lane v. Franks, — U.S. —, 134 S. Ct. 2369,
2378, 189 L.Ed.2d 312 (2014) (citing Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951
(2006)). The Court in Lane held that “[t]ruthful testimony under oath by a public employee
outside the scope of his ordinary job duties is speech as a citizen . . . even when the testimony
relates to his public employment or concerns information learned during that employment.” Id.
The County does not dispute that Lott was speaking as a citizen when she testified at the WareDuPree trial. It does, however, contend that her testimony was not on a matter of public concern.
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“Speech involves matters of public concern ‘when it can be fairly considered as relating
to any matter of political, social, or other concern to the community.’” Lane, 134 S. Ct. at 2380
(quoting Snyder v. Phelps, 562 U.S. 443, 453, 131 S. Ct. 1207, 179 L.Ed.2d 172 (2011)). The
County argues that Lott’s testimony in the mayoral election contest does not relate to a matter of
public concern because her testimony referred only to a phone call she overheard between Bolton
and Estrada. Lott testified that Bolton called Estrada to get information about Samuel Lindsey,
saying that “the son of a bitch was gonna pay.” (Trial Transcript [67-8] at p. 5.) Lott also
testified that this phone call was in response to Bolton and Estrada learning about Lindsey’s
testimony in the trial, which accused Bolton of releasing Lindsey from jail so that he could vote
for DuPree in the election. (Id. at pp. 7-9.; see also Lott Depo. [67-1] at p. 61.) Lott’s testimony,
then, accused Bolton and Estrada of misusing their positions to retaliate against Lindsey, which
the jury could find to be official misconduct. Official misconduct is “almost always” a matter of
public concern. Charles v. Grief, 522 F.3d 508, 514 (5th Cir. 2008).
Even if Bolton’s conduct was not official misconduct, Lott’s testimony could still be
found to be a matter of public concern. It is not disputed that Lott’s testimony was admitted into
evidence in the Ware-DuPree trial, which means that it was relevant to the election contest. See
M.R.E. 402 (“Evidence which is not relevant is not admissible.”). The County’s argument
amounts to an assertion that relevant testimony in an election contest is not a matter of public
concern. Because an election contest relates to a political concern of the community, Lott’s
testimony in such a contest would as well, making it a matter of public concern. See Lane, 134 S.
Ct. at 2380 (quoting Snyder, 562 U.S.at 453, 131 S. Ct. 1207). Therefore, the Court will not
grant the County’s motion on this element of Lott’s § 1983 claim.
c.
Lott’s Interest Outweighed Efficiency Interests
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To determine whether the County’s efficiency interests outweigh Lott’s free speech
interest, the Court employs the Pickering-Connick balancing test. Jordan v. Ector Cnty., 516
F.3d 290, 295 (5th Cir. 2008). This test requires the Court to “consider the balance between the
interests of the [employee], as a citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency of the public service it performs
through its employees.” Id. at 299 (quoting Connick v. Myers, 461 U.S. 138, 142, 103 S. Ct.
1684, 75 L.Ed.2d 708 (1983)) (internal quotations omitted) (alteration in original). A PickeringConnick analysis requires the following factors to be considered:
(1) the degree to which the employee’s activity involved a matter of public
concern; (2) the time, place, and manner of the employee’s activity; (3) whether
close working relationships are essential to fulfilling the employee’s public
responsibilities and the potential effect of the employee’s activity on those
relationships; (4) whether the employee’s activity may be characterized as hostile,
abusive, or insubordinate; (5) whether the activity impairs discipline by superiors
or harmony among coworkers.
Id. (quoting Brady v. Fort Bend Cnty., 145 F.3d 691, 707 (5th Cir. 1998)).
The County argues that, because Lott’s testimony was of such little importance and
because it strained her relationship with her superiors, its efficiency interests outweigh her
interest in giving the testimony. The Court assumes the County is arguing under the first, third,
and fifth factors of the Pickering-Connick balancing test and has conceded for the purposes of
this motion that the time, place, and manner of her speech weighs in her favor, as well as the fact
that her testimony was not hostile, abusive, or insubordinate.
The County claims that Lott’s testimony was “of little to no import” to the Ware-DuPree
trial. The only evidence it offers, though, is the trial transcript of her testimony. (County’s
Memo. in Support [57] at p. 15.) The Court must assume, absent any contrary evidence, that
Lott’s testimony was admitted in the Ware-DuPree trial because it was relevant and therefore had
14
some level of import to the election contest. See M.R.E. 402 (“Evidence which is not relevant is
not admissible.”). With only the testimony itself offered, the Court cannot agree with the County
that it was “of little or no import” to the election contest when it was admitted as relevant to the
trial.
The County’s remaining arguments that the negative effects of Lott’s testimony on the
essential close-working relationships in the jail and that her testimony impaired her superiors’s
ability to discipline her are no more than conclusory statements which point to no evidence in the
record for support. Therefore, because the Pickering-Connick balancing test weighs in Lott’s
favor, the Court will not grant the County’s motion on this element of her claim.
d.
Speech Precipitated Adverse Employment Action
The County argues that Lott’s transfer, suspension, and termination were not caused by
her testimony in the Ware-DuPree trial. First, it argues that Captain Brannon was responsible for
her transfer, and transferred her only to “keep the peace.” Second, it argues that her suspension
and termination were caused by the incident at the bar and not by her testimony.
The County argues that Captain Brannon was the one who made the decision to transfer
Lott “to keep the peace,” a decision it contends was motivated solely to promote harmony in the
administration of the jail. Lott does not offer any evidence disputing that Captain Brannon made
the decision to transfer her, nor has she offered any evidence that he was motivated to do so out
of anything but a desire to facilitate the efficient administration of the jail. (See Brannon Depo.
[67-7] at pp. 26-27.) Lott contends that “Estrada caused [her] to be transferred” but cites no
evidence in the record in support of this contention. (Memo. in Opposition [67] at p. 27.) Absent
any evidence establishing that the decision to transfer her was motivated by her testimony, the
Court finds that the County’s motion should be granted as to Lott’s transfer.
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The County makes the same arguments as Bolton and Estrada in support of its contention
that Lott’s suspension and termination were caused by the incident at the bar instead of Lott’s
testimony. As stated above, there is evidence that Bolton and Estrada, two parties with motive to
retaliate, had some level of involvement in the initiation of the investigation of the bar incidence.
See supra Part B.1.d. Sheriff McGee, the one who made the final decision to suspend and then
terminate Lott, testified that, at the time of his deposition, he was still upset with Lott over her
testimony in the Ware-DuPree contest. (McGee Depo. [67-3] at pp. 10, 13-14.) Furthermore,
Lott has put forward evidence showing that the altercation in the bar occurred while she was off
duty and involved only an exchange of words and gestures with the girlfriend of another sheriff
department employee and did not involve any violence. (James Depo. [69-19] at pp. 7-11;
Easterling Depo. [69-21] at pp. 9-14.) Lott has also put forth evidence of off-duty conduct by
other sheriff department employees which produced neither suspension nor termination. (McGee
Depo [67-3] at pp. 17-21.) This evidence, construed in a light most favorable to Lott as the
nonmovant, is enough that a reasonable jury could infer that Lott’s termination and suspension
were in retaliation of her testimony in the Ware-DuPree election contest. See Sierra Club, Inc.,
627 F.3d at 138.
e.
Monell Analysis
The County argues that Lott’s First Amendment retaliation claim fails because it was not
the result of a custom, policy, or practice of Forrest County. Monell v. Dep’t of Soc. Servs. of
N.Y.C., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38 (1978). The Fifth Circuit has held that, under
Monell, “a single decision may create municipal liability if that decision were made by a final
policymaker responsible for that activity.” Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996)
(quoting Brown v. Bryan Cnty., Okla., 67 F.3d 1174, 1183 (5th Cir. 1995)) (emphasis in
16
original). The County has conceded that Sheriff McGee is a final policymaker. (County Rebuttal
[76] at p. 13.) Because Sheriff McGee made the final decision on Lott’s suspension and
termination, Lott’s claim does not fail under a Monell analysis.
Therefore, the Court will grant in part and deny in part the County’s Motion for
Summary Judgment [56] with respect to Lott’s First Amendment retaliation claim under 42
U.S.C. § 1983. It is granted as to Lott’s claim that her transfer was motivated by retaliation on
the part of the County. It is denied as to her claim that her suspension and termination were
motivated by retaliation on the part of the County.
2.
Claims under 42 U.S.C. § 1981 and Title VII
Lott asserts claims for race discrimination, racial harassment, and retaliation against the
County under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The tests for these
claims under a summary judgment analysis are the same whether they are brought under Title VII
or § 1981. Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 342 (5th Cir. 2002).
a.
Race Discrimination
The Fifth Circuit held in Lee v. Kansas City S. R.R. Co. that
[t]o establish a prima facie case of racial discrimination in employment, an
employee must demonstrate that (1) he is a member of a protected class, (2) he
was qualified for the position at issue, (3) he was the subject of an adverse
employment action, and (4) he was treated less favorably because of his
membership in that protected class than were other similarly situated employees
who were not members of the protected class, under nearly identical
circumstances.
574 F.3d 253, 259 (5th Cir. 2009). The County argues that Lott has produced no evidence that
similarly situated individuals of another race were treated more favorably than her. Lott contends
that she has met her burden here because she has pointed to the alleged sexual misconduct of
17
Sheriff McGee and Deputy Tim Eubanks, both of whom have been accused of adultery and did
not face suspension or termination. (See McGee Depo. [67-3] at pp. 15-20.)
Even assuming that adultery is comparable enough to the bar altercation for the two men
to be “similarly situated” to Lott, Sheriff McGee, at least, is white and therefore not of another
race.1 It is not enough under a claim of racial discrimination to prove that she was treated
differently from other employees; Lott must prove she was treated differently because of her
race. To do so under Fifth Circuit precedent, Lott must adduce some evidence to show that she
“was treated less favorably” because of her race than “other similarly situated employees,” who
were not of her race, “under nearly identical circumstances.” Lee, 574 F.3d at 259. Because she
has not produced such evidence, Lott’s claim of racial discrimination under Title VII and § 1981
must fail. Therefore, the Court grants the County’s Motion for Summary Judgment [56] with
respect to these claims.
b.
Racial Harassment
Lott claims that she suffered a hostile work environment due to the racial harassment to
which she was subjected. To establish this claim, Lott “must prove: (1) she belongs to a
protected group; (2) she was subjected to unwelcome harassment; (3) the harassment complained
of was based on race; (4) the harassment complained of affected a term, condition, or privilege of
employment; (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. 2002)
(citations omitted). Furthermore, “[f]or harassment on the basis of race to affect a term,
1
The Court is unable to ascertain the race of Deputy Tim Eubanks from the record. Lott,
however, bears the burden of proving he is of a different race than her and has not met this
burden.
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condition, or privilege of employment, as required to support a hostile work environment under
Title VII, it must be sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Id. (internal quotations and citations
omitted). To determine whether harassment has risen to a level to create a hostile work
environment, the Court employs a totality-of-the-circumstances test, considering the following:
“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) (quoting Walker v.
Thompson, 214 F.3d 615, 625 (5th Cir. 2000)). A hostile work environment can be evidenced by
“[d]iscriminatory verbal intimidation, ridicule, and insults,” but “simple teasing, offhand
comments, and isolated incidents” will not be enough. Id. (internal citations omitted). For a
plaintiff to recover, though, she must “personally experience most (if not all) of the conduct.”
Septimus v. Univ. of Houston, 399 F.3d 601, 612 (5th Cir. 2005).
Lott points to several comments by Bolton and Estrada as evidence that she was subjected
to racial harassment. First, she states that Estrada told her that “ain’t no white going to beat no
black” for mayor of Hattiesburg. (Lott Depo. [67-1] at p. 74.) Lott claims that Estrada stated that
she was going to “whoop [her] white ass” and “go ghetto” on her. (Id. at p. 66.) Lott testified
further that Estrada indirectly threatened her by saying that “her baby’s daddy was in prison and
that if anybody messed with her . . . they could come up missing.” (Id.) When Lott asked if that
was directed at her, Estrada said, “Take it as you want it.” (Id. at pp. 70-71.) Estrada also made
comments about a “white bitch” that Lott felt were directed at her. (Id. at p. 71.) Lott contends
that she heard from Cooley that Bolton stated that he “want[ed] that white bitch fired.” (Id. at p.
80.)
19
Lott admits that most of these racially disparaging remarks were not made directly to her.
(Id. at p. 66, 71, 79.) In Septimus, the Fifth Circuit held that conduct complained about by other
women was not an appropriate basis for the plaintiff’s sexual harassment suit. 399 F.3d at 612.
Though there were specific, isolated incidents that Septimus felt targeted her as a woman, such as
a comment that she “was like a needy old girlfriend,” the Fifth Circuit did not find that these
incidents were enough to create a hostile work environment as they “were collectively
insufficient to establish that [the defendant’s] harassment was severe or pervasive enough to
make her working environment objectively hostile or abusive.” Id.
Similarly, in this case, Lott’s evidence is insufficient to establish a pervasively hostile
work environment due to racial harassment. Lott did not personally experience most of the
conduct she points to as evidence of harassment. Some of the conduct, such as the alleged threat
by Estrada concerning her “baby’s daddy” in prison, does not even directly implicate race. The
only comment about race that Lott testified was made directly to her was the comment that no
white was going to beat a black for mayor. (Lott Depo. [67-1] at p. 74.) This one isolated
incident is not enough to establish racial harassment pervasive enough to survive summary
judgment. The County’s Motion for Summary Judgment [56] will therefore be granted with
respect to Lott’s claim of racial harassment under both Title VII and § 1981.
c.
Retaliation
“Title VII prohibits retaliation against employees who engage in protected conduct, such
as filing a complaint of discrimination.” Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325
(5th Cir. 2002). The analysis is the same for a claim under § 1983. See Patel, 298 F.3d at 342.
The Fifth Circuit has held that the burden-shifting structure set forth in McDonnell Douglas
Corp. v. Green is applicable in cases such as this. Long v. Eastfield Coll., 88 F.3d 300, 304 (5th
20
Cir. 1996). The initial burden under McDonnell is on Lott to establish her prima facie case. Id.
at 304-05. Once established, the burden shifts to the County to show a legitimate, nondiscriminatory reason for its actions before shifting back to Lott to determine whether the real
motivation was retaliation. Id. at 305. Therefore, the Court must first look at whether Lott has
established her prima facie case.
To establish a retaliation claim, Lott must prove: “(1) [s]he engaged in a protected
activity; (2) [s]he suffered an adverse employment action; and (3) a causal nexus exists between
the protected activity and the adverse employment action.” Id. (citing Gee v. Principi, 289 F.3d
342, 345 (5th Cir. 2002)). There is no dispute that Lott’s first EEOC complaint was protected
conduct. The County argues, though, that Lott cannot show that her transfer was an adverse
employment action. It further contends that no causal nexus exists between her EEOC complaint
and her suspension and termination.
In her Memorandum in Opposition [67] to the County’s motion, Lott produces the same
evidence in support of her assertion that her transfer was an adverse employment action under he
§ 1983 claim as she cited in her Memorandum in Opposition [69] to Bolton and Estrada’s
motion. (Memo. in Opposition [67] at pp. 21-22.) Lott does not reassert this argument in the
section of her memorandum dedicated to her retaliation claim, but the County had full notice of
this argument and the opportunity to address it. Therefore, the Court will not penalize Lott not
repeating her argument for clarity’s sake in this section. The Court will again adopt its above
reasoning and find that Lott has adduced enough evidence such that, when all evidence is viewed
in her favor and all reasonable inferences drawn, a jury could believe that her new position was
objectively worse than her previous one and find it to be an adverse employment action. See
supra B.1.a. Furthermore, because the County does not dispute that there was a causal
21
connection between the EEOC complaint, the protected action taken by Lott, and her transfer, it
will not be granted summary judgment on this claim as to the transfer.
The County does, however, argue that there is no causal nexus between Lott’s EEOC
complaint and her suspension and termination. In support of such a causal nexus, Lott contends
that she was an excellent employee and that her termination went against typical policies of the
County. She further argues that the close temporal proximity between the adverse employment
actions and the EEOC complaint allow an inference of a causal connection. Lott’s contentions
that she was an excellent employee and that her termination went against typical policies are
misplaced. While this evidence might be useful to rebut a proffered legitimate reason for her
termination, it does not establish a causal nexus needed for her prima facie case. Even assuming
arguendo that a close temporal relationship alone would be enough to establish a causal link, Lott
filed her first EEOC complaint on October 23, 2013. (First EEOC Complaint [67-14].) She was
suspended on August 8, 2014, and terminated on September 16, 2014. (Lott Depo. [67-1] at pp.
20-21.) The Court does not find that these dates are close enough in time to permit a reasonable
jury to infer causation. The County’s request for summary judgment will therefore be granted
under this claim with respect to Lott’s suspension and termination.
Therefore, the Court will grant in part and deny in part the County’s Motion for
Summary Judgment [56] as it pertains to Lott’s Title VII and § 1981 retaliation claim. It will be
granted as to the claim that Lott’s suspension and termination were caused by her EEOC
complaint. It will be denied as to the claim that her transfer was in retaliation for her EEOC
complaint.
3.
Wrongful Discharge
22
Lott’s wrongful discharge claim, as a state law claim against a political subdivision, is
subject to the MTCA. See Estate of Williams ex rel. Williams v. City of Jackson, 844 So.2d
1161, 1164 (Miss. 2003). Section 11-6-11 of the MTCA holds that “[a]fter all procedures within
a governmental entity have been exhausted, any person having a claim under this chapter shall
proceed as he might in any action . . . , except that . . . the person must file a notice of claim with
the chief executive officer of the governmental entity.” The Mississippi Supreme Court has held
that this section requires both that internal grievance processes be followed and a notice of claim
be filed. Harris v. Miss. Valley State Univ., 873 So.2d 970, 989-90 (Miss. 2004). The Forrest
County Sheriff’s Department provides for an employee to appeal her termination within ten days
of the termination decision. (See Memo [56-24].) As Lott does not dispute that she did not
follow this internal appeals process after her termination, she is barred by the MTCA from
bringing her state law claim of wrongful discharge. The County’s Motion for Summary
Judgment [56] will therefore be granted as to this claim.
III. CONCLUSION
IT IS THEREFORE ORDERED AND ADJUDGED that Bolton and Estrada’s Motion for
Summary Judgment [54] is denied.
IT IS FURTHER ORDERED AND ADJUDGED that the County’s Motion for Summary
Judgment [56] is granted in part and denied in part.
It is granted as to the following claims: First Amendment retaliation under 42 U.S.C.
§ 1983 with respect to Lott’s transfer; race discrimination under 42 U.S.C. § 1981 and Title VII;
racial harassment under 42 U.S.C. § 1981 and Title VII; retaliation under 42 U.S.C. § 1981 and
Title VII with respect to Lott’s suspension and termination; and wrongful discharge.
23
It is denied as to the following claims, which remain pending: First Amendment
retaliation under 42 U.S.C. § 1983 with respect to Lott’s suspension and termination, and
retaliation under 42 U.S.C. § 1981 and Title VII with respect to Lott’s transfer.
SO ORDERED AND ADJUDGED this the 10th day of November, 2015.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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