Chamblee v. Mississippi Farm Bureau Federation et al
Filing
89
Memorandum Opinion and Order granting 59 MOTION for Summary Judgment. A final judgment dismissing this case with prejudice will be entered. Signed by District Judge Tom S. Lee on 3/22/13 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
PAUL CHAMBLEE
PLAINTIFF
VS.
CIVIL ACTION NO. 3:11CV655TSL-JMR
MISSISSIPPI FARM BUREAU FEDERATION;
RANDY KNIGHT AND DAVID WAIDE
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendants
Mississippi Farm Bureau Federation, Randy Knight and David Waide
for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure.
Plaintiff Paul Chamblee has responded in
opposition to the motion and the court, having considered the
memoranda of authorities, together with attachments, submitted by
the parties, concludes that defendants’ motion is well taken and
should be granted.
Plaintiff Paul Chamblee was terminated from his employment
with Mississippi Farm Bureau Federation (Farm Bureau or MFBF) in
January 2011.
Following his termination, Chamblee filed the
present action alleging he was terminated on account of his age in
violation of the Age Discrimination in Employment Act, 29 U.S.C.
621, et seq. (ADEA).
He also asserted state law claims for
negligent and intentional infliction of emotional distress,
invasion of privacy, defamation, breach of contract, wrongful
termination and civil conspiracy.
Defendants have moved for
summary judgment on all of Chamblee’s claims.
The following undisputed facts are gleaned from the record
evidence.
Defendant Farm Bureau is a private organization of farm
families which represents the interests of Mississippi farm
families.
Farm Bureau is organized on a county, state and
national level, with the county being the nucleus of the
organization.
There is a county farm bureau in each of
Mississippi’s eighty-two counties, which represent a combined
nearly 200,000 members.
At the state level, Farm Bureau has four
officers, a president and three vice-presidents, who are elected
every other year.
In addition, the organization employs eight
regional managers and various staff, all of whom are at-will
employees.
Plaintiff Paul Chamblee was employed as a regional
manager from January 1995 until his January 2011 termination.
Chamblee was 55 years old.
Another regional manager, Greg Shows,
age 40, was terminated at the same time.
According to Farm
Bureau, age played no role in either termination; rather, both
were terminated because of their involvement in Farm Bureau
politics.
Farm Bureau explains that in early 2010, defendant
David Waide, who had served as president of Farm Bureau for the
previous fourteen years, announced he would not run for
reelection.
Randy Knight, then a vice president, immediately
announced his intent to run for president.
2
He was opposed by two
candidates, Ken Middleton and Brad Bean.
While the candidates
campaigned throughout the year, their campaigns switched into high
gear in the fall, in advance of the December 2010 election.
Ultimately, Knight won the election, and upon assuming office in
January 2011, he fired Chamblee and Greg Shows, ostensibly because
they had assisted in Ken Middleton’s election campaign.
It is undisputed that during Waide’s presidency, it was Farm
Bureau policy that Farm Bureau employees were prohibited from
participating in the politics of elections.
This was a
particularly important rule for regional managers, who were tasked
with educating county farm bureaus within their respective regions
and were in the field regularly meeting with county bureau
officials and members on the president’s behalf.
Given their role
as the president’s “eyes and ears” in the field, it is imperative
that the president be able to trust his regional managers.
Thus,
while all might go well for a regional manager who supported the
winning candidate in an election, one who campaigned for a losing
candidate (and hence against the winner) was at risk of losing his
job if the newly-elected president believed he did not have the
regional manager’s support during the election.
For this reason,
all Farm Bureau employees, including Chamblee, were explicitly
warned by Waide that they could lose their jobs if they became
involved in the campaign for president.
3
Chamblee admits he knew his job would be in jeopardy if he
were to become involved in the political process of the election
campaign, and he insists that he stayed out of the campaign.
But
according to Farm Bureau, there was ample evidence which led
Knight to conclude that Chamblee and Shows had supported Middleton
in his election campaign.
Accordingly, upon taking office as Farm
Bureau president, Knight informed both men that because of their
involvement in the political process of the election, they could
resign or be terminated; both resigned.
After filing an EEOC
charge alleging he was discharged because of his age and receiving
his notice of right to sue, Chamblee brought the present action.
The ADEA makes it “unlawful for an employer to fail or refuse
to hire ... any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's age.”
U.S.C. § 623(a)(1).1
29
To establish an ADEA claim, “[a] plaintiff
1
Plaintiff cannot state a claim for individual liability
against either Waide or Knight under the ADEA. See Medina v.
Ramsey Steel Co., Inc., 238 F.3d 674, 686 (5th Cir. 2001) (“[T]he
ADEA ‘provides no basis for individual liability for supervisory
employees.’”) (quoting Stults v. Conoco, Inc., 76 F.3d 651, 655
(5th Cir. 1996)). The court notes that plaintiff has purported to
assert a state law claim against Waide and Knight for conspiracy
to violate his right to be free from age discrimination. In the
court’s opinion, as a matter of law, such a claim is not
actionable. Cf. Windham v. Cardinal Health, Inc., No.
CIVA504CV262-DCBJCS, 2006 WL 51185, 7 (S.D. Miss. Jan. 9, 2006)
(dismissing claim under federal conspiracy statute for alleged
conspiracy to violate ADEA, reasoning that ADEA’s comprehensive
remedial framework should not be circumvented by resorting to the
4
must prove by a preponderance of the evidence (which may be direct
or circumstantial), that age was the ‘but-for’ cause of the
challenged employer decision.”
Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167, 173–78, 129 S. Ct. 2343, 2351, 174 L. Ed. 2d 119
(2009).
Where a plaintiff lacks direct evidence of age
discrimination, his claim is analyzed under the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–03, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
See Jackson v.
Cal–Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010)
(applying McDonnell Douglas framework to ADEA claim).
Under this
framework, “‘[a] plaintiff relying on circumstantial evidence must
put forth a prima facie case, at which point the burden shifts to
the employer to provide a legitimate, non-discriminatory reason
for the employment decision.’”
Moss v. BMC Software, Inc., 610
F.3d 917, 922 (5th Cir. 2010) (quoting Berquist v. Washington Mut.
Bank, 500 F.3d 344, 349 (5th Cir. 2007)).
“If the employer
articulates a legitimate, non-discriminatory reason for the
employment decision, the plaintiff must then be afforded an
opportunity to rebut the employer's purported explanation, to show
that the reason given is merely pretextual.”
602 F.3d at 378-79).
Id. (citing Jackson,
A plaintiff may establish pretext directly,
broader and less procedurally complicated conspiracy statute)
(citing Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366,
378, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979)). In any event,
there is no proof to support plaintiff’s conspiracy allegations.
5
by showing that a discriminatory motive more likely motivated his
employer's decision, such as through evidence of disparate
treatment, or indirectly, by showing that the employer’s proffered
explanation is unworthy of credence.
Wallace v. Methodist Hosp.
System, 271 F.3d 212, 220 (5th Cir. 2001) (citation omitted).
It
is insufficient under the ADEA to show that discrimination was a
motivating factor; the plaintiff instead must show that age was
the “but for” cause of the challenged adverse employment action.
Moss, 610 F.3d at 928 (citing Gross, 557 U.S. at 173–78, 129 S.
Ct. at 2351, 174 L. Ed. 2d 119).
To make a prima facie case of age discrimination, Chamblee
must establish the following four elements: (1) he was discharged;
(2) he was qualified for the position; (3) he was within the
protected class at the time of discharge, 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.
Jackson, 602 F.3d at 379.
Farm Bureau does not dispute that
Chamblee’s proof establishes a prima facie case of age
discrimination.
Plaintiff was a member of the protected class of
employees age 40 or older; he was qualified for his position; he
was discharged; and following his termination, his job duties were
assigned to an individual or individuals outside the protected
6
class.2
Moreover, defendants have proffered a legitimate,
nondiscriminatory reason for plaintiff’s termination.
The issue,
therefore, is whether plaintiff has presented sufficient evidence
to create an issue for trial on his claim that Farm Bureau’s
asserted reason for his termination is pretext for age
discrimination.
Chamblee attempts to establish pretext by showing Farm
Bureau’s justification for his termination was false or unworthy
of credence.
“In appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation that the
employer is dissembling to cover up a discriminatory purpose.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120
S. Ct. 2097, 2109, 147 L. Ed. 2d 105 (2000).
In the court’s
opinion, Chamblee has failed to create a genuine dispute of
material fact concerning Farm Bureau’s reason for his termination.
Primarily, Chamblee has undertaken to establish falsity of
Farm Bureau’s proffered reason by proving that he was not, in
fact, involved in any manner in the political process of the
election.
But even if that is true, the Fifth Circuit has
repeatedly emphasized that “a fired employee's actual innocence of
2
While Chamblee claims his territory was assigned to 23year old Matthew Bales, Farm Bureau has submitted evidence that
following a restructuring of the regions shortly after Chamblee’s
termination, three different regional managers, all under the age
of 40, ended up with a portion of Chamblee’s former territory.
The majority of Chamblee’s prior territory was assigned to John
Kilgore, who was 38.
7
his employer's proffered accusation is irrelevant as long as the
employer reasonably believed it and acted on it in good faith.”
Cervantez v. KMGP Servs. Co. Inc., 349 Fed. Appx. 4, 10, 2009 WL
2957297, 4 (5th Cir. 2009) (citing Waggoner v. City of Garland, 987
F.2d 1160, 1165 (5th Cir. 1993)); see also Mayberry v. Vought
Aircraft Co., 55 F.3d 1086, 1091 (5th Cir.1995) (“The question is
not whether an employer made an erroneous decision; it is whether
the decision was made with discriminatory motive.”).
Thus,
Chamblee’s “assertion of innocence alone does not create a factual
issue as to the falsity of [the employer's] proffered reason for
terminating him.”
Jackson, 602 F.3d at 379.
The issue is whether
Farm Bureau reasonably believed Chamblee was involved in the
campaign and acted based on that belief; and in the court’s
opinion, on this issue, Chamblee has failed to come forward with
sufficient evidence to create a genuine dispute of fact warranting
a trial.
Uncontroverted evidence has been presented tending to show
that Ken Middleton had the benefit of “inside information” during
his 2010 election campaign.
According to a number of witnesses,
it was apparent during the campaign that Middleton was privy to
inside information; and some, including Randy Knight, believed
that he had gotten the information from Chamblee and/or Shows.
In
his deposition, David Waide related that around August or
September 2010, both Knight and Brad Bean complained to him that
8
someone on the Farm Bureau staff was leaking information to
Middleton.
Waide said he knew this was true since he had heard
Middleton give campaign speeches at county board meetings in which
Middleton “would repeat things in his speech that, unless somebody
on the inside was feeding him information, he would not have
known.”
Waide testified that from the nature of the information
to which Middleton obviously had been made privy, it was apparent
the information could have come from one of only ten people,
including the eight regional managers.
In an effort to identify
the source of the leak, Waide obtained cell phone records of these
ten individuals covering about two months.
Waide stated that
after examining the records, two regional managers, Chamblee and
Shows, “stood out” as having an excessive number of calls and
texts to Middleton.
Doug Ervin, another regional manager, also testified that he
heard during the election campaign of 2010 that someone in Farm
Bureau management was leaking information to Middleton.
And while
he stated that no one told him the source of the leak, which he
estimated could have been one of about twenty people, he “had
[his] thoughts” about it, which were that the leak was Chamblee or
Shows.
This was his “gut feeling” based on his perception of
their interaction during the campaign.
Similar to Ervin, Regional Manager Samantha Webb testified
that during the campaign, she perceived that there was “a much
9
closer and friendly relationship” between Chamblee and Middleton
“than [she] ever saw any of the other regional managers or staff
members exhibit with any candidate,” which she found “alarming.”
She further related a telephone call she received from Middleton
in the fall of 2010 in which he asked her to help set up a meeting
with a county president or two.
She declined since she was not
comfortable being involved in politics.
Webb stated that when she
told Middleton she would not help him, he replied, “It’s not that
big of a deal.
Other [regional managers] are doing it.
the others are helping in doing things like that.”
Some of
Webb testified
that she reported this conversation to Waide, including the fact
that Middleton had told her he had other regional managers working
for him.
Waide’s response, she stated, was along the lines of “I
bet I know who those might be,” or “those wouldn’t be hard to
guess.”
Ervin also testified that Ken Middleton had called him during
the campaign and asked him to be on Middleton’s team and told him
that things would be easier for him if he were.
This made him
think that Middleton had likely called other regional managers and
said the same thing to them.
Although Ervin did not report this
conversation to Waide, Waide indicated in his deposition testimony
that he was aware of the conversation, perhaps because he had
overheard Ervin tell Webb about the call.
10
In his deposition, Randy Knight related that during the 2008
campaign in which Ken Middleton ran against then-incumbent Waide,
he saw that Chamblee and Shows were involved in trying to help
Middleton beat Waide.
He explained that he had observed the three
men talking together every time they had the opportunity; and he
stated that while he was not privy to their conversations, it was
obvious to him what was going on.
He testified that during the
2010 election in which he was running against Middleton, there was
widespread talk that there were people on the inside who were
involved in election politics.
He also became aware that there
was a mole, or more than one mole, on the staff feeding
information to Middleton since Middleton was saying things on the
campaign trail that only people on the inside would have known;
Knight reported this to Waide.
Knight acknowledged that during the 2010 election, no one
ever told him that Chamblee was involved in the election campaign
or presented him with any documentation indicating that Chamblee
was involved in the campaign.
However, Knight stated that during
the 2010 campaign, he felt strongly from what he witnessed of
their interaction that Chamblee was working together with
Middleton, supporting him and doing all he could to help Middleton
win the election.
Knight testified, “I saw what I believed in my
mind that he was doing everything he could to help Mr. Middleton.”
Knight related that the day after the election, when Waide came by
11
the office to pick up some things, the two discussed Knight’s
expressed concern that some regional managers may have been
involved in the election campaign.
Knight testified that he asked
whether Waide had any evidence of Chamblee’s and Shows’
involvement, and Waide offered him the phone records that he had
previously reviewed.
According to Knight, Waide volunteered that
prior to the election, he “felt like” Shows and Chamblee were
involved in the political process.3
Knight testified that two days later, he met with and
informed William E. Davis, treasurer and chief financial officer
of Farm Bureau, that he wanted to terminate Chamblee and Shows for
violating the policy against involvement in Farm Bureau politics.
Davis responded that he would need documentation to support the
decision so he gave the cell phone records he had gotten from
Waide to Farm Bureau’s attorney, Sam Scott, and asked Scott to
conduct an investigation.
According to Knight, he told Scott that
he “wanted him to do some further investigation to see if we had
some material evidence that we could produce to go along with what
I had seen and what I knew had been happening.”
After Scott
completed his investigation, which purportedly included review of
3
In his testimony, Waide confirmed that based on the
phone records, he suspected Chamblee and Shows of helping in
Middleton’s campaign. In his deposition, Waide could not recall
whether he shared this information with Knight when they met on
December 4, 2010 and could not deny that he identified Chamblee
and Shows to Knight as likely culprits.
12
updated cell phone records showing extensive contact between
Chamblee and Shows and candidate Middleton – 63 calls between
Chamblee and Middleton and 211 between Shows and Middleton in the
three months preceding the election – Knight concluded he had
sufficient evidence to confirm Chamblee’s and Shows’ involvement
in Middleton’s campaign and was warranted in asking for their
resignations.
In response to defendants’ motion, plaintiff points out that
Knight admittedly had no “piece of paper, note, memo, text
message, [or] e-mail” establishing that Chamblee supported
Middleton for president, and he insists that the falsity of Farm
Bureau’s purported reason for his termination is demonstrated by
the lack of hard evidence documenting that he had supported or
helped Middleton.
Again, however, the issue is not whether
Chamblee was actually innocent of the accusation that he supported
Middleton but rather is whether Farm Bureau reasonably believed
the accusation and acted on it in good faith.
Fed. Appx. at 10, 2009 WL 2957297, at 4.
See Cervantez, 349
That said, the court
might conclude that an issue of fact as to pretext were presented
if plaintiff had demonstrated that Knight made the termination
decision without any evidence to suggest that Chamblee was
involved in Middleton’s election campaign.
But the court finds no
merit in plaintiff’s implicit suggestion that pretext can
reasonably be found based solely on Knight’s having decided to
13
terminate his employment in the absence of conclusive proof that
plaintiff supported Middleton’s campaign.
Plaintiff argues that the only actual evidence defendants had
at the time of his termination was cell phone records, which he
insists was proof of nothing.
He contends that while Farm Bureau
purports to have determined based on these records that he had
excessive contact with Middleton during the election campaign, its
putative conclusion that the number of calls and text messages
indicated that he was involved in Middleton’s campaign was nothing
more than speculation and conjecture.
He further points out that
Knight, who made the termination decision, admitted he never even
personally reviewed the cell phone and text records, and he argues
that the records, or at least those that have been produced during
discovery and hence are properly before the court, do not support
Farm Bureau’s claim of 63 calls or text messages between Chamblee
and Middleton in the months preceding the election.
Plaintiff,
though, does not deny that he had over 50 calls and texts with
Middleton during the 2010 campaign.4
4
And while he discounts the
Defendants deny plaintiff’s claim that they have failed
to produce the cell phone records reviewed by Waide and the
additional records reviewed by Sam Scott prior to Chamblee’s
termination. They maintain that they have produced all
plaintiff’s and Shows’ cell phone records for the year 2010, as
well as the cell phone records of the other regional managers and
management officials for the period of August 1, 2010 to November
15, 2010. Defendants correctly submit that if plaintiff believed
they were withholding records to which he was entitled, then he
could and should have moved to compel production of these records
during discovery and has no basis for objection at this point.
14
significance of this number, contending that some other regional
managers had even more calls and texts with Middleton, Waide’s
testimony that he viewed Chamblee’s calls and texts with Middleton
as excessive is uncontroverted.
Moreover, Knight testified that while he considered the cell
phone records, his decision to terminate was based primarily on
his own personal observations during the election campaign of the
interaction between the candidate Middleton and Regional Managers
Chamblee and Shows.
Knight stated:
The biggest part of the decision was made from what I
saw from being out there for eight months running all
over this state going from county to county, and what I
saw with my two eyes that those three guys were doing.
That was the biggest thing that influenced my decision.
...
I felt like I did what I had to do to try for me to make
the best decisions and a run this organization the best
I knew how, but I had to have folks that worked for me
that I could trust, that I didn’t have to worry about
stabbing me in the back, and I knew in my heart and in
my gut that both of those guys would stab me in the
back, and that’s how I made my decision.
In fact, although Knight seems to intimate in his declaration that
he made the termination decision in consultation with Sam Scott,
who had reviewed Chamblee’s cell phone records, it is clear from
the deposition testimony that Knight had already expressed his
desire and intent to terminate Shows and Chamblee prior to
15
consulting with Scott.5
Knight testified plainly that he knew
before Scott reviewed Chamblee’s and Shows’ cell phone records
that they had supported Middleton in the election campaign, and
Knight made clear that he would have made the decision to
terminate them with or without the cell phone records.
He
indicated that he requested Scott to conduct an investigation in
an effort to obtain proof to corroborate their involvement and
thereby head off any potential legal challenge.
According to
Knight, Scott’s report that the phone records showed 63 calls
between Chamblee and Middleton and 211 between Shows and Middleton
merely served to “confirm[] what [he] knew to be true–both Greg
Shows and Paul Chamblee were involved in the campaign and heavily
supporting Middleton.”6
Even assuming Chamblee was involved in
5
In response to what he interprets from Knight’s
declaration as an attempt to place responsibility for the
challenged employment decision on Scott, plaintiff submits that
defendants, having invoked the attorney-client privilege in
refusing to answer deposition questions about Knight’s discussions
with Sam Scott, should not be permitted to assert a defense based
on “advice of counsel.” Alternatively, he requests that the court
reopen discovery to allow him an opportunity to depose Scott.
However, the court does not perceive defendants to be contending
that Chamblee was terminated on advice of counsel. His request
for discovery will be denied.
6
Plaintiff has moved to strike Knight’s declaration on
the bases that it directly contradicts his deposition testimony
and contains inadmissible hearsay. In the court’s opinion, it is
clear that summary judgment is in order, with or without Knight’s
declaration. However, the court is also of the opinion that
plaintiff has not demonstrated a basis for striking Knight’s
declaration.
Although plaintiff broadly criticizes the declaration as
inconsistent with Knight’s deposition testimony, plaintiff has not
16
Middleton’s campaign, he has not presented sufficient evidence to
create an issue for trial on Knight’s belief of his involvement in
the campaign.
Plaintiff alternatively has attempted to show pretext with
proof of disparate treatment.
In particular, he contends that it
is suggestive of pretext that Knight did not investigate other
regional managers for possible involvement in the 2010 election
campaign and instead investigated only Chamblee and Shows, both of
whom were in the protected age group.
In other words, he seems to
claim that other regional managers were treated more favorably
identified any specific respect by which he contends it is
inconsistent, and no inconsistency is apparent to the court.
Knight arguably suggests in his deposition that he and Scott
together made the termination decision, stating that “after
consulting with Sam Scott, ... we agreed that their employment
with Farm Bureau must come to an end.” In the court’s view, this
is not inconsistent with his deposition testimony regarding the
process by which he came to the final decision to terminate. In
substance, according to Knight, Scott agreed with his decision to
terminate.
Most of the statements to which plaintiff objects as hearsay
relate to Knight’s professed belief, based on his own
observations, that Chamblee and Shows were involved in and
supported Middleton’s campaign. These statements are not hearsay.
Contrary to plaintiff’s urging, Scott’s report to Knight of the
number of calls and texts is not hearsay as it is not offered to
prove the truth of the matter asserted but rather to prove only
that Knight was informed by Scott that cell phone records showed
63 phone calls and texts between Chamblee and Middleton and 211
calls and texts between Shows and Middleton.
As to other statements purporting to relate Scott’s
conclusion as to the sufficiency of the evidence to support
Chamblee’s and Shows’ terminations or Scott’s opinion that they
should be terminated, plaintiff’s hearsay objection may have
merit. However, those statements have no bearing on the court’s
decision herein.
17
because they were not even investigated for possible misconduct.
For disparate treatment, “the misconduct for which the plaintiff
was discharged [must be] nearly identical to that engaged in by
other employees”.
Okoye v. Univ. of Tex. Hous. Health Sci. Ctr.,
245 F.3d 507, 514 (5th Cir. 2001) (quotations omitted).
In the
court’s opinion, plaintiff has failed to demonstrate that he and
Shows were similarly situated to other regional managers, who had
not engaged in conduct which caused Knight to suspect them of
improper involvement in the political process.
Simply put, Farm
Bureau had no reason to investigate all regional managers when
only two were suspected of violating the rule against involvement
in Farm Bureau politics.
The fact that the investigation was
limited to the individuals suspected of campaigning does not show
pretext.7
Therefore, as plaintiff has failed to create a genuine
7
The court would observe, too, that while Shows is not a
plaintiff, Chamblee has noted that both he and Shows were within
the ADEA-protected age group, and he has posited that Farm
Bureau’s decision to terminate both of them ostensibly for
supporting Middleton was pretext for age discrimination. However,
Shows, at age 40, was only barely within the protected class; and
Don Kilgore, the individual who can most fairly be said to have
replaced Chamblee, was only two years younger than Shows. On the
other hand, Knight, who made the decision to fire them, was 50
years old and hence well within the protected class. See Brown v.
CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) (fact that
decision maker is also a member of a protected class creates
inference that decision maker did not make the adverse decision
because of the plaintiff's protected class).
18
issue of material fact on pretext, his ADEA claim will be
dismissed.8
In addition to his ADEA claim, plaintiff has asserted a
number of state law claims, including for intentional and/or
negligent infliction of emotional distress, invasion of privacy,
defamation, breach of contract and wrongful discharge.
For the
reasons that follow, the court concludes that defendants are
entitled to summary judgment on each of these claims.
8
The court notes that in response to defendants’ motion,
plaintiff has presented argument in support of a putative claim of
disparate impact, contending, in particular, that he was the
victim of a restructuring plan by Farm Bureau designed to “youthsize” the organization which resulted in a reduction in the
average age of its regional managers by 13 years. However, among
other shortcomings identified in their reply brief in support of
dismissal of such claim, defendants note that plaintiff did not
present this claim to his EEOC charge and it is therefore not
properly before the court. See Pacheco v. Mineta, 448 F.3d 783,
791-92 (5th Cir. 2006) (holding that employee failed to exhaust
disparate-impact claim where EEOC charge alleged only disparate
treatment and identified no neutral employment policy). Indeed,
plaintiff’s EEOC charge can only reasonably be interpreted as
asserting a disparate treatment claim, not a disparate impact
claim. The court notes, moreover, that plaintiff has not alleged
a viable disparate impact claim in any event. Although he does
allege that regional managers in the protected class were
adversely impacted by the restructuring, he has identified no
facially neutral policy that resulted in this alleged
disproportionately adverse effect. See Hebert v. Monsanto, 682
F.2d 1111, 1116 (5th Cir. 1982) (explaining that disparate-impact
discrimination addresses employment practices or policies that are
facially neutral in their treatment of protected groups but have a
disproportionately adverse effect on such a protected group). On
the contrary, he claims that the restructuring was intentionally
discriminatory, characterizing the restructuring as “a masterful
plan to change the workforce and disguise violations of the ADEA”
which adversely impacted employees within the protected age group,
including him.
19
To prevail on a claim for intentional infliction of emotional
distress, the challenged conduct must be so outrageous in
character and so extreme in degree as to go beyond all possible
bounds of decency.
Starks v. City of Fayette, 911 So. 2d 1030,
1036 (Miss. Ct. App. 2005) (citing Diamondhead Country Club and
Property Owners Ass'n., Inc. v. Montjoy, 820 So.2d 676, 684 (Miss.
Ct. App. 2000)).
In Starks, the court observed that “[a] claim
for intentional infliction of emotional distress will not
ordinarily lie for mere employment disputes[,] id. (citing Lee v.
Golden Triangle Planning & Dev. Dist., Inc., 797 So. 2d 845, 850
(Miss. 2001)); “‘[r]ecognition of a cause of action for
intentional infliction of emotional distress in a workplace
environment has usually been limited to cases involving a pattern
of deliberate, repeated harassment over a period of time.’” Id.
(quoting Lee, 797 So. 2d at 750).
See also Prunty v. Arkansas
Freightways, Inc., 16 F.3d 649, 654 (5th Cir. 1994) (“Only in the
most unusual cases does the conduct move out of the ‘realm of an
ordinary employment dispute’ into the classification of ‘extreme
and outrageous,’ as required for the tort of intentional
infliction of emotional distress.”)(citations omitted).
Here,
plaintiff declares in response that “this case is not your
ordinary employment dispute,” yet he has pointed to no evidence in
the record that raises a genuine issue as to whether defendants
ever engaged in such egregious behavior.
20
His claim therefore
fails as a matter of law.
for Sav.,
See Brown v. Inter-City Federal Bank
738 So. 2d 262, 265 (Miss. Ct. App. 1999) (stating that
“[m]ore is required to support an intentional infliction of
emotional distress recovery than the usual age discrimination
claim[,]” and finding proof that employer disparaged employee as
too old, asked her when she would retire, removed her from the
main office, said she needed a man's help, and ultimately fired
her did not create cognizable claim).
Defendants correctly point out that any claim by plaintiff
for negligent infliction of emotional distress relating to his
termination is plainly barred by the exclusivity provision of the
Mississippi Worker’s Compensation Act (MWCA), Miss. Code Ann.
§ 71–3–9.
See Easterling v. AT & T Mobility, LLC, 824 F. Supp. 2d
729, 733 (S.D. Miss. 2011) (finding that claim for negligent
infliction of emotional distress based on employee’s termination
was barred by the Mississippi Workers' Compensation exclusivity
bar); Berry v. Advance America, Civil Action No. 3:06CV348TSL-JCS,
2007 WL 951590, *3 (S.D. Miss. Mar. 27, 2007) (holding state law
claim for negligent infliction of emotional distress based on
defendant's having terminated plaintiff and having allegedly
provided adverse references to potential employers barred by the
exclusivity provision of the Mississippi Workers' Compensation
Act).
Plaintiff does not dispute this but argues that the MWCA is
no bar to his claim for negligent infliction of emotional distress
21
based on defendants’ conduct after his termination which caused
him to suffer reasonably foreseeable emotional distress.
However,
defendants have sought summary judgment as to any such claim on
the basis that plaintiff has failed to allege or present proof of
damages as would support a claim for negligent infliction of
emotional distress.
The Mississippi Supreme Court has held that
“where the defendant's conduct rises only to the level of ordinary
negligence, the plaintiff must prove some sort of injury or
demonstrable harm, whether it be physical or mental, and that harm
must have been reasonably foreseeable to the defendant.”
Wilson
v. General Motors Acceptance Corp., 883 So. 2d 56, 64 (Miss.
2004).
Plaintiff’s vague assertion in his affidavit submitted in
response to defendants’ motion that he has “ha[s] been depressed,”
and has “suffer[ed] many sleepless nights, and other symptoms of
emotional distress,” is insufficient to maintain a claim under
Mississippi law for negligent infliction of emotional distress.
See id. (finding no claim where alleged emotional distress
consisted primarily of loss of sleep and the plaintiff neither
sought nor received any medical treatment or professional
counseling regarding her alleged emotional distress); Adams v.
U.S. Homecrafters, Inc., 744 So. 2d 736, 744 (Miss. 1999) (finding
that “Adams's vague testimony about loss of sleep and worry ...
was insufficient to support an instruction or an award of damages
for emotional distress”); Morrison v. Means, 680 So. 2d 803, 806
22
(Miss. 1996) (finding that the plaintiff’s testimony as to the
loss of sleep was not enough evidence to support verdict for
emotional distress damages); Strickland v. Rossini, 589 So. 2d
1268, 1275-76 (Miss. 1991) (testimony that plaintiff was “very
depressed ... [and] very upset over all this and emotional ...
[and] not able to sleep,” was insufficient to sustain an award of
damages for mental anguish).
According to his response to the pending motion, Chamblee’s
claims for invasion of privacy and defamation are based on
Knight’s having disclosed the “false and unsupported” information
regarding his termination to his former co-workers and to
employees and groups of Farm Bureau members,9 specifically by
falsely representing to such persons that there was “ample
evidence” to support the decision.10
Plaintiff arguably implies in
his response memorandum that Farm Bureau, and Knight in
9
Four theories are recognized for the tort of invasion of
privacy: “‘(1) the intentional intrusion upon the solitude or
seclusion of another; (2) the appropriation of another's identity
for an unpermitted use, (3) the public disclosure of private
facts, and (4) holding another to the public eye in a false
light.’” Brasel v. Hair Co., 976 So. 2d 390, 392 (Miss. Ct. App.
2008) (quoting Candebat v. Flanagan, 487 So. 2d 207, 209 (Miss.
1986)). Plaintiff herein complains of the alleged public
disclosure of private facts.
10
Plaintiff has asserted a claim for invasion of privacy
based on allegations that defendants “secretly intercepted text
communications from [him] to third parties without a legal basis
to do so [and] monitored [his] private communications without a
legal reason to do so.” Plaintiff has apparently now abandoned
this claim.
23
particular, disclosed to Farm Bureau employees and members the
putative reason for his termination, i.e., his support of a
political candidate, yet no evidence has been presented to support
any such charge.
Clearly, word got around that Chamblee had been
terminated – or asked to resign – because he had allegedly
supported Middleton, but there is no evidence that Farm Bureau
disclosed to anyone other than members of the Executive Board the
reason for Chamblee’s termination.11
Accordingly, plaintiff has no
cognizable claim for invasion of privacy.
11
In fact, plaintiff, who acknowledges that “[w]ord
travels fast in the world of Farm Bureau,” has presented evidence
which suggests that it was widely rumored throughout the Farm
Bureau organization that he had been terminated for supporting a
political candidate. A letter from Jasper County Farm Bureau
president John Keenan to Knight stated, “We have heard through
rumors that the reason for his termination was his support of a
specific individual for President.” Keenan asked for an
explanation, but Knight did not respond to his inquiry.
Leake County Farm Bureau president Jimmie Arthur states in an
affidavit he was shocked when he was told Chamblee had been
politicking for Middleton and “could not believe that he was
terminated for that reason.” He does not suggest that he was told
this by Knight or anyone else in Farm Bureau management, however.
He goes on to state that he wrote to Knight, stating, “We know he
was given the option of resigning or being terminated with the
reason being given that he campaigned for another candidate” and
“have been told there is much evidence....” Arthur demanded to be
provided “all the evidence” of Chamblee’s involvement in the
campaign. Knight responded to the letter, but declined to provide
any substantive information regarding Chamblee’s termination.
Dorothy Arthur states by affidavit only that she learned of
Chamblee’s termination from a source outside the MFBF family; and
that when specifically questioned about Chamblee’s termination at
a Leake County Farm Bureau annual meeting in September 2011,
Knight responded that MBMF had “ample evidence” to support the
termination decision.
24
Plaintiff’s complaint for defamation appears to be based on
his claim that in response to inquiries concerning Chamblee’s
termination, Knight falsely represented that there was “ample
evidence” to support Farm Bureau’s termination decision.
The
statement that there was evidence supporting the termination was
not false; and in the court’s opinion, Knight’s characterization
of the evidence as “ample” cannot be “‘reasonably understood as
declaring or implying a provable assertion of fact.’”
Hudson v.
Palmer, 977 So. 2d 369, 385 (Miss. Ct. App. 2007) (quoting
Roussel v. Robbins, 688 So. 2d 714, 723 (Miss. 1996)).
Chamblee further asserts that Farm Bureau’s response to his
EEOC charge, in which it asserted that there was a “wealth of
information” that Chamblee had supported a political candidate,
was false and defamatory.
Farm Bureau submits its response to the
EEOC was subject to qualified privilege, so that in the absence of
proof of malice or a lack of good faith, which is lacking here, no
defamation claim will lie.
See Stockstill v. Shell Oil Co., 3
F.3d 868, 872 (5th Cir. 1993) (qualified privilege applied to
employer’s alleged defamatory statements to EEOC relating to
charge of discrimination, so that plaintiff could not prevail
without proof of malice or lack of good faith).
The court agrees
and concludes that summary judgment is in order on this claim.
Chamblee’s state law claim for breach of contract and
wrongful termination fails as a matter of law, since he was an at-
25
will employee who could be fired at any time.
See Jones v. Fluor
Daniel Servs. Corp., 959 So. 2d 1044, 1046 (Miss. 2007) (“An
at-will employment contract may be terminated at any time, by
either party to the contract.”).12
Plaintiff suggests that
certain training presented by Farm Bureau shortly prior to his
termination which recognized practices and procedures to be
followed by Farm Bureau prior to termination gave him the right
not to be terminated unless those procedures were followed.
However, the training described by plaintiff did not alter or
amend the employee handbook, which specifically apprised employees
as follows:
Neither these rules, benefits and policies, nor any
other written or oral statements are contracts of
employment and both the employee and Mississippi Farm
Bureau Federation understand that employment may be
terminated by either party at any time, for any reason.
Plaintiff’s claims for breach of contract and wrongful termination
will therefore be dismissed.
Based on all of the foregoing, the court concludes that
defendants’ motion for summary judgment is well taken, and
accordingly, it is ordered that the motion is granted.
12
The Mississippi Supreme Court has recognized only two
narrow exceptions to the employment-at-will doctrine, permitting
an at-will employee to maintain a claim for wrongful discharge
where such employee is terminated because he has refused to
participate in an illegal activity or has reported an illegal
activity of the employee to the employer or to anyone else. Jones
v. Fluor Daniel Servs. Corp., 959 So. 2d 1044, 1046 (Miss. 2007).
Neither exception applies here.
26
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 22nd
day of March, 2013.
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
27
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