Garner v. Mission Essential Personnel, L.L.C.

Filing 89

Memorandum Opinion and Order granting in part, denying in part 80 MOTION for Summary Judgment, as set out herein. Signed by District Judge Tom S. Lee on 10/12/12 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
L. GODFREY GARNER
VS.

PLAINTIFF
CIVIL ACTION NO. 3:11CV127TSL-MTP

MISSION ESSENTIAL PERSONNEL, L.L.C.

DEFENDANT

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendant
Mission Essential Personnel, L.L.C. for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure.

Plaintiff L.

Godfrey Garner has responded to the motion, and the court, having
considered the memoranda and submissions, together with
attachments, submitted by the parties, concludes that the motion
should be granted in part and denied in part, as follows.
Plaintiff L. Godfrey Garner filed this action against his
former employer Mission Essential Personnel, L.L.C. (MEP) setting
forth federal claims for discrimination, retaliation and
constructive discharge under the Age Discrimination in Employment
Act of 1967, § 4(a), 29 U.S.C. § 621, et seq. (ADEA), and a state
law claim for intentional infliction of emotional distress.

MEP

seeks summary judgment on all of these claims, contending Garner
cannot establish a prima facie case on any of his federal claims
and that his proof fails to establish the kind of outrageous

conduct required to support his state law claim for intentional
infliction of emotional distress.
Plaintiff claims that he was subjected to age discrimination
by MEP when his supervisor threatened to transfer him from a
supervisory position at a central location to an inferior
nonsupervisory position at an outpost.

The court readily

concludes that MEP is entitled to summary judgment on this claim
based on the undisputed material facts.

Relative to this claim,

the record evidence establishes that in the fall of 2009, Garner,
a retired army veteran with experience working with civilian
defense contractors providing intelligence support to the United
States military in the Afghanistan war theater, was hired by
Harding Security Associates to work as a senior counterintelligence agent for MEP on a U.S. Department of Defense
contract awarded to MEP for counterintelligence support in
Afghanistan.

At the time, Garner was 62 years of age.

Garner was

assigned to work with the U.S. Army’s 82nd Airborne’s senior
counterintelligence (CI) command led by Chief Warrant Officer
(CWO) Earl Ivory.

Shortly after Garner’s arrival in Afghanistan,

CWO Ivory tapped him to serve as Lead for Operational Control Team
(OCT)-East at Bagram Air Base.

In this position, Garner worked

with Ivory to establish a framework for the civilian CI teams to
operate, designating them to assume responsibility for all of the
lower-end CI functions in order to free the Army to handle more
serious CI-related functions.
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After Garner and the initial CI units arrived in Afghanistan,
Rick Hoppe was assigned to be MEP’s contract project manager.
Hoppe worked primarily from his home in Virginia and communicated
with MEP personnel in Afghanistan mainly through emails.

On

January 19, 2010, Hoppe sent an email to Garner advising that
Hoppe had decided to move Garner from his position as OCT-East
Lead to a position as a counterintelligence agent at Forward Base
Fenty, a more austere and hostile assignment that did not include
any leadership function.

Hoppe proposed to move Dan Stanford, a

significantly younger MEP employee, from Forward Base Fenty into
Garner’s Lead position at Bagram.

In this email, Hoppe wrote:

It's not working out. You are working too many hours, I
have too few Seniors so that I can't send one to support
you, and you and I don't work together very well. You
are feeling it and so am I. I see symptoms of overload.
You and I both are too old to work under that level of
overload for long.
Garner responded that he would comply but requested both a
written explanation as to the claimed inadequacies in his job
performance and clarification as to how his age had adversely
affected his performance.

Garner sent a carbon copy of his

response email to Hoppe’s superior and to CWO Ivory.

In his

reply, Hoppe did not offer any explanation as to putative
performance deficiencies or the effect of Garner’s age on his
performance.

Instead, Hoppe wrote that Garner should not want

anything in writing because “[w]riting can follow you,” (a
statement which Garner perceived as a threat).

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Ultimately, CWO

Ivory intervened, demanding on behalf of the military that Garner
not be transferred.

As a result, the proposed transfer was halted

and Garner remained as OCT-East Lead, at the same pay, until April
2010, when he resigned.
To establish a prima facie case of age discrimination, Garner
must show that
(1) he was a member of a protected class-those persons over
the age of forty; (2) he was qualified for the position that
he held; (3) he suffered an adverse employment action; and
(4) he was either i) replaced by someone outside the
protected class, ii) replaced by someone younger, or iii)
otherwise discharged because of his age.
Berquist v. Washington Mut. Bank, 500 F.3d 344, 349 (5th Cir.
2007) (emphasis added) (citing Rachid v. Jack In The Box, Inc.,
376 F.3d 305, 309 (5th Cir. 2004)).

Here, while Hoppe proposed to

transfer Garner, the transfer was merely contemplated and never
consummated.

As a result, Garner's employment status never

changed, and neither did his benefits or responsibilities.

Thus,

Garner cannot demonstrate that he suffered an adverse employment
action.

See McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th

Cir. 2007) (stating that for discrimination claims, “[a]dverse
employment actions include only ultimate employment decisions such
as hiring, granting leave, discharging, promoting or
compensating”) (internal quotation and citation omitted).
Garner contends that after he complained of age
discrimination, MEP and Hoppe engaged in a constant campaign of
retaliation which ultimately led to his resignation under duress.

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He states he was subjected to constant interference in carrying
out his leadership functions and received false complaints for
alleged incidents of not performing his duties, and for which
other OCT Leads were not reprimanded.

Specifically, he claims he

received daily emails from Hoppe which not only criticized his
administrative reports but also directed him to take actions for
which he lacked authority, thus placing him in positions which
were antagonistic to CWO Ivory.

Garner testified that dealing

with or refuting the issues raised in Hoppe’s emails took several
hours of his time each day, which impeded his ability to do his
job effectively.

Garner testified that in one instance, Hoppe

directed that Garner advise his subordinates in Afghanistan that
their pay would be withheld if they failed to complete their time
cards, and yet when Garner complied with Hoppe’s directive, he was
called to task for doing so by Hoppe and Hoppe’s superior.

In

another instance, Hoppe, via email, purported to hold Garner
accountable for a mix-up involving linguists which were deployed
but should not have been because they did not have the proper
clearance, a situation over which Garner had no control.

When

Garner began the process of recalling the linguists, he found
himself at odds with the Army, which did not want to lose the use
of the linguists despite their lack of clearance.
According to Garner, Hoppe’s in-country manager, Matt
Jennings, joined the campaign of harassment and like Hoppe, sent
emails criticizing Garner in both his administrative and
operational capacities and, like Hoppe, directed him to take
actions which seemed inconsistent with his authority and placed
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him in a position which was antagonistic to CWO Ivory.

In one

such instance, according to Garner, Jennings countermanded a
decision that Garner had made regarding the transfer of two of his
team members to another location to do a short-term function.
Eventually, in April 2010, CWO Ivory took up Garner’s cause,
writing to MEP to complain of what he contended was MEP’s
continued harassment of Garner.

However, despite having Ivory’s

support, Garner concluded in April 2010 that since he had
evidently become the target of a campaign of retaliation, he could
no longer live with the prospect that lives were being placed in
danger and the military mission was being undermined by his
continued presence in Afghanistan, and therefore he made the
decision to resign and informed MEP that he would not return to
the contract following his planned leave in early May 2010.
According to Garner, Hoppe’s actions “placed [me] in an extreme
state of fear and apprehension for [my] safety as well as the
safety of others who were relying on me.”
To establish a prima facie case of retaliation, Garner must
show that: (1) he participated in a protected activity; (2) his
employer took an adverse employment action against him; and (3) a
causal connection exists between the protected activity and the
materially adverse action.

See Aryain v. Wal-Mart Stores Texas

LP, 534 F.3d 473, 484 (5th Cir. 2008) (citing McCoy v. City of
Shreveport, 492 F.3d 551, 557 (5th Cir. 2007)).

In the context of

a retaliation claim, conduct is “materially adverse” if it would
have “dissuaded a reasonable worker from making or supporting a
charge of discrimination” and while an objective test is applied,
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“whether a particular action is materially adverse will depend on
the context and circumstances of the particular case.”

Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68-69, 126 S. Ct.
2405, 165 L. Ed. 2d 345 (2006).

In the court’s opinion, while a

close question is presented, the incidents which Garner cites in
support of his claim for retaliation arguably could be reasonably
found to be materially adverse.

Therefore, the court will deny

MEP’s motion for summary judgment on Garner’s claim for
retaliation.
However, while these incidents may qualify as materially
adverse so as to support his retaliation claim, the conduct
referenced by Garner is not sufficiently severe and pervasive to
support a reasonable finding that Garner was constructively
discharged.

To prove constructive discharge, Garner must

demonstrate “‘working conditions ... so intolerable that a
reasonable person in the employee's position would have felt
compelled to resign.’”

Aryain, 534 F.3d at 480 (quoting Penn.

State Police v. Suders, 542 U.S. 129, 141, 124 S. Ct. 2342, 2342,
159 L. Ed. 2d 204 (2004)).

As the Fifth Circuit recently

explained in Nassar v. University of Texas Southwestern Medical
Center,
Constructive discharge claims like the one [plaintiff
has] brought are essentially hostile work environment
claims but more extreme. We therefore have required
plaintiffs advancing constructive discharge claims to
prove the existence of an aggravating factor. Brown v.
Kinney Shoe Corp., [237 F.3d 556, 566 (5th Cir. 2001)].
Such factors include:
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(1) demotion; (2) reduction in salary; (3)
reduction in job responsibility; (4) reassignment
to menial or degrading work; (5) reassignment to
work under a younger supervisor; (6) badgering
harassment, or humiliation by the employer
calculated to encourage the employee's resignation;
or (7) offers of early retirement or continued
employment on terms less favorable than the
employee's former status.
Dediol [v. Best Chevrolet, Inc., 655 F.3d 435, 444 (5th
Cir. 2011)].
674 F.3d 448, 453 (5th Cir. 2012).

See also Dediol, 655 F.3d at

444 (explaining that a constructive discharge claim “requires a
greater severity or pervasiveness of harassment than the minimum
required to prove a hostile work environment.” (internal quotation
marks omitted)).

As in Nassar, Garner has presented proof of none

of these factors with the possible exception of “badgering,
harassment, and humiliation.”

However, as the court made clear in

Nassar, the level of “badgering, harassment, and humiliation”
required to establish constructive discharge is more than the
minimum required to make out a claim of hostile work environment:
There must be “sufficient proof to show that [Garner’s] ‘working
conditions were so intolerable that a reasonable employee would
feel compelled to resign.’” 674 F.3d at 453 (citing Dediol, 655
F.3d at 444).

Here, the record before the court does not

establish the kind of severe or pervasive harassment required to
establish a hostile work environment, much less the kind of
“hostile work environment but more extreme” required to establish
constructive discharge.

Thus, while plaintiff may have

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subjectively felt compelled to resign, in the court’s opinion, he
has not created a genuine issue of material fact on whether he was
subject to an objectively hostile work environment.
MEP also seeks summary judgment on plaintiff’s state law
claim for intentional infliction of emotional distress (IIED),
contending the conduct of which he complains does not rise to the
level of extreme and outrageous conduct required to sustain such a
claim under Mississippi law.
Under Mississippi law, the standard for IIED “is very
high: the defendant's conduct must be ‘wanton and wilful
and [such that] it would evoke outrage or revulsion.’”
Hatley v. Hilton Hotels Corp., 308 F.3d 473, 476 (5th
Cir. 2002) (quoting Leaf River Forest Prods., Inc. v.
Ferguson, 662 So. 2d 648, 659 (Miss. 1995)). “A
Mississippi federal court defined the necessary severity
as acts so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable
in a civilized community.” Speed v. Scott, 787 So. 2d
626, 630 (Miss. 2001). Employment disputes do not
ordinarily sustain claims for IIED. Pegues v. Emerson
Elec. Co., 913 F. Supp. 976, 982-83 (N.D. Miss. 1996)
(“Recognition of a cause of action for [IIED] in a
workplace environment has usually been limited to cases
involving a pattern of deliberate, repeated harassment
over a period of time.”) (citations omitted).
Cheatham v. Allstate Ins. Co., 465 F.3d 578, 586 (5th Cir. 2006).
The court easily concludes plaintiff’s evidence does not satisfy
this exacting standard.
Based on the foregoing it is ordered that defendant’s motion
for summary judgment is granted in part and denied in part, as set
forth herein.
ORDERED this 12th day of October, 2012.

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/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

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