Felder v. Edwards et al

Filing 24

Memorandum Opinion and Order granting in part, staying in part 12 MOTION to Dismiss/MOTION for Summary Judgment, finding as moot 19 MOTION for Extension of Time. The parties are granted until 1/17/14 to conduct immunity releated discovery as discussed herein. Plaintiff's supplemental response to dispositive motion is due by 1/31/14, with defendant's supplemental rebuttal due by 2/7/14. Signed by District Judge Tom S. Lee on 12/5/13 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
DR. PAMELA M. FELDER
VS.

PLAINTIFF
CIVIL ACTION NO. 3:13CV392TSL-JMR

DR. LONNIE EDWARDS, IN HIS INDIVIDUAL
CAPACITY, DR. JAYNE SARGENT, IN HER
INDIVIDUAL CAPACITY, AND THE JACKSON PUBLIC
SCHOOL DISTRICT

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendants
Dr. Jayne Sargent and Jackson Public School District (JPS) “to
dismiss on [the] basis of qualified immunity from federal claims
and individual immunity from state law claims or, alternatively,
for summary judgment.”1

Plaintiff Dr. Pamela M. Felder both

opposes the motion and requests a “continuance to conduct immunity
related discovery before responding to the Defendants’ Motion to
Dismiss/Summary Judgment so that Plaintiff can show that
1

The title of defendants’ motion would seem to denote a
request for a ruling that Sargent, who is sued only in her
individual capacity, is entitled to qualified immunity/individual
immunity, or alternatively, a request for a ruling that the moving
defendants are entitled to summary judgment as to the claims
asserted in the complaint. However, while it is not altogether
clear from the briefs offered in support of the motion, having
read the motion and the requests for relief asserted therein, the
court concludes that the motion is most accurately viewed as
seeking only a ruling that Sargent is entitled to qualified
immunity/state law immunity pursuant to either a 12(b)(6) or
summary judgment standard. Despite its title, the motion in
substance does not purport to seek summary judgment as to any
other defendant.

defendants violated her clearly established constitutional and
statutory rights and the defendants’ conduct was not objectively
reasonable.”2

The court, having reviewed the parties’ memoranda

and the exhibits attached thereto, concludes that the motion
should be granted in part and stayed in part to allow plaintiff to
conduct immunity-related discovery to the extent discussed herein.
Plaintiff was formerly employed by JPS as Deputy
Superintendent of Curriculum and Instruction/Accreditation.
Following her nonrenewal in 2012, she filed this action against
JPS and former JPS superintendents Dr. Lonnie Edwards3 and Dr.

2

Plaintiff, who apparently interpreted defendants’ motion
as seeking summary judgment on the merits, noted in her memorandum
of authorities that her response was confined to the issue of
qualified immunity and requested “permission to conduct merit
discovery” “before the court determines whether defendants are
entitled to summary judgment.” Although it is a moot point, the
court would point out that had defendants been seeking summary
judgment on the merits, plaintiff’s request for a delay to allow
merits discovery would have been insufficient. See Raby v.
Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (explaining that
party seeking continuance under Rule 56(d) (formerly 56(f)) “may
not simply rely on vague assertions that additional discovery will
produce needed, but unspecified, facts ... [but instead] must set
forth a plausible basis for believing that specified facts,
susceptible of collection within a reasonable time frame, probably
exist and indicate how the emergent facts, if adduced, will
influence the outcome of the pending summary judgment motion”)
((internal citations and quotations omitted).
3

While both the original and amended complaints
explicitly state that Edwards is being sued in his individual
capacity only, on September 20, 2013, counsel for JPS filed an
answer purporting to answer the claims asserted against Edwards in
his official capacity. By footnote one of the motion, counsel
disavows representation of defendant Edwards in his individual
capacity.
2

Sargent, in their individual capacities only, asserting various
federal claims and a state law claim for breach of contract.

The

facts as set forth in the complaint are as follows:
During Lonnie Edwards’ tenure as JPS superintendent, which
commenced in 2008, JPS hired Felder to serve as one of two deputy
superintendents.

Felder, who had previously served as a teacher

and principal in the JPS system, was selected as Deputy
Superintendent for Curriculum and Instruction/ Accreditation,
because Edwards, to whom she directly reported, lacked experience
in the areas of curriculum and instruction.

In this position,

Felder was responsible for exceptional education, assessment,
accountability and research, state and federal programs,
professional development, literacy, advanced academics,
instructional and information technology and instruction.
Felder alleges that in addition to fulfilling the job duties
outlined for her position, she performed many of the duties set
out in Edwards’ job description, with Edwards receiving both the
credit and the compensation for her work.

While she toiled at her

desk completing her and Edwards’ work, Edwards and Deputy
Superintendent for Schools Wilbur Walters “lollygagged about
Jackson, [Mississippi].”

Felder further alleges that Walters was

not required to complete any acts of substance, but rather his
primary role was to chauffeur Edwards.

3

On March 29, 2011, plaintiff slipped and fell down some
stairs while on the job.

Despite the disability caused by the

injury, she was able to perform the essential functions of the job
and was permitted by Edwards to work half days at the Central
Office and half days from home.

During this time, Edwards, who

had been notified by JPS that his contract would not be renewed,
asked Felder to testify on his behalf at his due process hearing
and to respond to specific items outlined in his non-renewal
letter from the board.

While she complied with his request

regarding the items outlined in the non-renewal letter, she
advised him due to her disability, she would not voluntarily
appear to testify at the hearing.

Although it is unclear whether

she expressed the same to Edwards, plaintiff alleges she was
reluctant to testify because she did not want to associate herself
with Edwards and/or voluntarily interject herself into the
controversy between Edwards and the school board.

She asserts

that immediately following her refusal, Edwards began to retaliate
against her by requiring her to submit her time sheets directly to
him, instead of following the usual procedure whereby she gave her
time sheets to her secretary who then submitted them to the
payroll officer/ department.
Following Edwards’ tenure with JPS which ended June 30, 2011,
Dr. Sargent, who had previously served as JPS Superintendent from
1997 to 2002, was appointed as Interim Superintendent.
4

According

to the complaint, during Sargent’s previous term as superintendent,
she had allowed Felder to work from home to accommodate a previous
disability.

However, upon commencing service as Interim

Superintendent, Sargent refused to continue this reasonable
accommodation for plaintiff’s current disability.

Specifically, on

July 18, 2011, Sargent notified Felder by letter that she was not
aware of any JPS policy which allowed an employee to complete job
duties from home and further advised plaintiff that she was
required to comply with the district’s sick leave policy which
required her to use sick leave for time she was away from work due
to illness.
Felder further charges that Dr. Sargent excluded her from
executive team/instructional meetings and removed her from a
supervisory position over the directors of Information Technology,
State and Federal Programs and Exceptional Education, transferring
their supervision to Deputy Superintendent Walters with
instructions that plaintiff no longer interact with the directors.
On February 23, 2012, months after her alleged demotion and
while she was on leave to attend to her disability, Sargent sent
her a nonrenewal letter which stated, “[T]he reasons for your nonrenewal as Deputy Superintendent are as follows:

The financial

constraints of the school district necessitate the elimination of
your positions [sic].

The school district is facing a severe

budgetary challenge for this fiscal year and future fiscal years.”
5

Sargent further advised, “[T]he school district will no longer
employ two deputy superintendents.

Consequently, the school

administration will be restructured to provide concentrated focus
on curriculum and the delivery of instruction such that two
deputies will not be required.”

While plaintiff was non-renewed,

Wilbur Walters retained his position as a deputy superintendent.
Felder alleges that in implementing what was purportedly a
reduction in force, Sargent failed to follow applicable JPS
policies.

She also contends, though, that there was no real

reduction in force and that JPS did not actually eliminate the
position of “Deputy Superintendent of Instructional Support and
School Accreditation.”

She contends that instead, by its purported

reduction in force, JPS eliminated only three administrative
positions (not including the position she had held), and that it
merely renamed the remaining administrative positions, and offered
the renamed positions with a reduction in pay to the same
administrators who had held those positions before they were
renamed, with the exception of her.

She claims that she was

disabled at the time, and was the only administrator in the renamed
positions who was not offered an alternate position.

According to

the complaint, the supposed reduction in force is belied by the
fact that days before Sargent left as Interim Superintendent, she
allowed Walters to recommend that Sargent’s own son be promoted to
Executive Director for Research and Accountability, when Sargent
6

had previously denied plaintiff permission to hire an employee to
fill the position.
Felder further alleges that while the foregoing events were
transpiring, JPS was also interfering with her rights under the
Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. According
to her complaint, JPS required her to apply for FMLA leave
commencing on April 13, 2011.

JPS thereafter interfered with her

FMLA rights by miscalculating her FMLA leave time; failing to give
her notice that she was required to take FMLA leave concurrently
with her receipt of workers’ compensation benefits; rescinding
approval of her FMLA leave on October 11, 2011; and refusing to
continue to honor the reasonable accommodation of allowing her to
work from home.
Lastly, the complaint charges upon her separation from the
District, JPS failed to pay her for 142 days of sick leave which
had been donated by employees in school districts across the state.
On this factual basis, Felder purports to assert claims
against all the named defendants for gender discrimination under
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., 42
U.S.C. § 1981 and the Equal Protection Clause of the Fourteenth
Amendment.

She additionally asserts claims against them under 42

U.S.C. § 1983 for violation of her alleged constitutional rights
to be left alone (First Amendment); to not be deprived of her
property without due process (Fifth Amendment takings clause); to
7

privacy (Fourteenth Amendment); and to procedural due process
(Fourteenth Amendment).

And she alleges claims under the

Americans with Disability Act (ADA), 42 U.S.S. § 12101 et seq.,
and the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.
Finally, plaintiff purports to advance a state law claim for
breach of contract.

The court first addresses Felder’s putative

federal claims.
“Section 1983 provides a cause of action for persons who have
been ‘depriv[ed] of any rights, privileges, or immunities secured
by the Constitution and laws' of the United States by the actions
of a person or entity operating under color of state law.”
Kovacic v. Villarreal, 628 F.3d 209, 213 (5th Cir. 2010)
(alteration in original) (quoting § 1983).

Defendants maintain

that Sargent, who has been sued only in her individual capacity,
is entitled to qualified immunity as to the federal claims set out
in the complaint.

While plaintiff has responded in opposition to

the substance of the motion, she has also requested that the court
defer consideration of the motion to allow for immunity-related
discovery.
Qualified immunity promotes the necessary, effective, and
efficient performance of governmental duties, Harlow v.
Fitzgerald, 457 U.S. 800, 807, 102 S. Ct. 2727, 73 L. Ed. 2d 396
(1982), by shielding from suit all but the “plainly incompetent or
those who knowingly violate the law,” Brumfield v. Hollins, 551
8

F.3d 322, 326 (5th Cir. 2008) (citation and internal quotation
marks omitted).

Once a defendant properly invokes qualified

immunity, the plaintiff bears the burden to rebut its
applicability.

McClendon v. City of Columbia, 305 F.3d 314, 323

(5th Cir. 2002).

The qualified immunity analysis asks whether

(1) the claims as pled in the complaint “establish a violation of
clearly established right,” and (2) “whether the conduct was
objectively reasonable in light of clearly established law at the
time of the incident.”

Lauderdale v. Texas Dept. of Criminal

Justice, Institutional Div., 512 F.3d 157, 166 (5th Cir. 2007).
Conclusory allegations of wrongdoing do not satisfy these
requirements.

Carter v. Reach, 399 Fed. Appx. 941, 942 (5th Cir.

Oct. 29, 2010).
As qualified immunity is immunity from suit, not simply a
defense to liability, Mitchell v. Forsyth, 472 U.S. 511, 526, 105
S. Ct. 2806, 86 L. Ed. 2d 411 (1985), a defendant may lose one of
the most salient benefits of immunity, protection from pretrial
discovery, if the district court permits overly broad discovery in
connection with resolving a defendant’s motion asserting qualified
immunity.

Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).

mitigate this risk, the Fifth Circuit has “established a careful
procedure under which a district court may defer its qualified
immunity ruling if further factual development is necessary to

9

To

ascertain the availability of that defense.” Id.

Under the

prescribed procedure, the
court must first find “that the plaintiff's pleadings
assert facts which, if true, would overcome the defense
of qualified immunity.” [Wicks v. Miss. State Emp’t
Servs., 41 F.3d 991, 994-95 (5th Cir. 1995)]; see also
Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S. Ct.
1937, 1949–50, 173 L. Ed. 2d 868 (2009) (directing that
a plaintiff must “state a claim for relief that is
plausible on its face”—excluding statements that are “no
more than conclusions” which are “not entitled to the
assumption of truth”). Thus, a plaintiff seeking to
overcome qualified immunity must plead specific facts
that both allow the court to draw the reasonable
inference that the defendant is liable for the harm he
has alleged and that defeat a qualified immunity defense
with equal specificity. After the district court finds
a plaintiff has so pled, if the court remains “unable to
rule on the immunity defense without further
clarification of the facts,” it may issue a discovery
order “narrowly tailored to uncover only those facts
needed to rule on the immunity claim.” Lion Boulos [v.
Wilson, 834 F.2d 504, 507–08 (5th Cir. 1987)].
Id.
Defendants maintain generally in their motion that Felder
cannot overcome Sargent’s qualified immunity inasmuch as the
complaint relies on conclusory factual and legal allegations
which, as a “whole[,] fail[] to specifically set out what conduct
by Defendant Sargent violated [her] rights.”

However, as to some

of plaintiff’s putative federal claims - namely for violation of
the Equal Protection Clause, the Fourteenth Amendment right to
privacy, Title VII, § 1981 and the FMLA - defendants additionally
offer more specific arguments in support of dismissal.
Plaintiff’s argument in response to defendants’ motion addresses

10

only her claims for gender discrimination under Title VII and the
Equal Protection Clause and her FMLA claim.

She has not addressed

defendants’ arguments as to the remaining claims.

More to the

point, she has not attempted to refute Sargent’s assertion of
qualified immunity as it pertains to the alleged violations of
plaintiff’s rights under the ADA, the First and Fifth Amendments
and the alleged due process violation.

Likewise, Felder has not

purported to present any facts that would overcome Sargent’s
qualified immunity as it relates to Felder’s ostensible claim for
invasion of privacy.
Regarding the ADA claim, it is clear that Sargent is not an
“employer” under the ADA definition of that term.
§ 12111(4) (defining “employer”).

See 42 U.S.C.

And while the Fifth Circuit has

not specifically ruled on the question, the majority of federal
circuit courts that have considered the issue have held that the
ADA precludes personal capacity suits against individuals who do
not otherwise qualify as employers under the statutory definition
of that term.

See Walsh v. Nevada Dept. of Human Resources, 471

F.3d 1033 (9th Cir. 2006); Koslow v. Commonwealth of Pennsylvania,
302 F.3d 161 (3d Cir. 2002); Butler v. City of Prairie Village,
Kan., 172 F.3d 736 (10th Cir. 1999); Sullivan v. River Valley
School Dist., 197 F.3d 804,(6th Cir. 1999); Mason v. Stallings, 82
F.3d 1007 (11th Cir. 1996); U.S. E.E.O.C. v. AIC Sec.
Investigations, Ltd., 55 F.3d 1276 (7th Cir. 1995).

11

The reasoning

of these courts is persuasive and the court thus concludes that
Felder’s ADA claim against Sargent should be dismissed, on both
the basis of Sargent’s qualified immunity and on the basis that
she is not a proper ADA defendant in any event.
Moreover, the complaint lacks any detail, much less the level
of specificity required to overcome qualified immunity, as to how
Sargent allegedly either retaliated against plaintiff for
exercising her First Amendment right to be left alone and or
participated in any decision to deny Felder compensation for
donated sick leave (which is the alleged basis of the putative
Fifth Amendment taking claim).

Further, while plaintiff claims

her due process rights were violated by defendants’ failure to
provide her with notice of her right to a hearing prior to her
alleged demotion, Mississippi law is unsettled on the issue of
whether a demoted (as opposed to a terminated) school employee is
entitled to notice and a hearing.

See Winters v. Calhoun County

School Dist., 990 So. 2d 238, 240-41 (Miss. Ct. App. 2008)
(declining to address the issue of whether Education Employment
Procedures Law applies to demotions as well as to non-renewals).
The complaint thus fails to allege a violation of a clearly
established right so as to overcome Sargent’s qualified immunity.
Finally, the allegations of the complaint do not state a claim for
violation of plaintiff’s right to privacy.

In this regard,

plaintiff’s claim for invasion of privacy appears to be based on a

12

charge that Sargent inquired about plaintiff’s medical condition
in Dr. Walters’ presence.

“There is no Fifth Circuit authority on

what types of disclosures are personal enough to trigger the
protection of the confidentiality branch [of the substantive due
process privacy rights].”

Zaffuto v. City of Hammond, 308 F.3d

485 (5th Cir. 2002) (observing that “as the Third Circuit notes,
‘the contours of the confidentiality branch are murky’”) (quoting
Scheetz v. The Morning Call, Inc., 946 F.2d 202, 206 (3d Cir.
1991)).

There is no allegation that Sargent actually disclosed or

revealed to Dr. Walters any intimate facts about plaintiff, much
less facts which were arguably sufficiently intimate to violate
her constitutional rights.

Accordingly, she has failed to plead

sufficient facts to state a cognizable claim for violation of her
right to privacy, much less sufficient facts to overcome Sargent’s
qualified immunity.
Turning to her claim of gender discrimination, defendants
maintain that Felder has failed to set forth a prima facie case
for gender discrimination as she has not alleged or provided
evidence that a similarly situated male employee was treated more
favorably.

Defendants further maintain that even had she

established a prima facie case, plaintiff has not come forward
with any proof to counter JPS’s legitimate non-discriminatory
reason for her termination, a reduction in force.

13

Defendants

additionally argue that the putative § 1981 claim fails inasmuch
as gender discrimination is not cognizable under § 1981.
In response to the motion, Felder asserts that she has met
her burden on her prima facie case by her allegations that
(1) she was non-renewed while her less diligent male counterpart,
Wilbur Walters, kept his position as Deputy Superintendent, and
(2) defendants selected a male, Jason Sargent, to fill the
position of Executive Director of Research, when she was clearly
better qualified and should have been offered the position under
JPS’s reduction in force policy.4

As to JPS’s proffered

legitimate non-discriminatory reason, the reduction in force, the
complaint alleges that the reduction in force was a sham and
amounted to little more than a reshuffling and renaming of
positions within the administration.
Plaintiff’s putative § 1981 and Title VII claims for gender
discrimination fail as a matter of law.

As defendants have

correctly pointed out, a claim for sex/gender discrimination is
not cognizable under § 1981.

Bobo v. ITT Continental Baking Co.,

662 F.2d 340, 345 (5th Cir. 1981) (concluding that district court
properly held that sex discrimination is not cognizable under §

4

Based on her allegation that defendant Edwards allowed
Wilbur Walters to slack off his job duties while requiring her to
complete her assigned tasks, plaintiff further contends that she
has a claim that males were treated more favorably in the terms
and conditions of employment. As the motion at bar pertains to
defendant Sargent, the court will not address this putative claim.
14

1981).

Further, as an agent of JPS, Sargent does not meet the

statutory definition of “employer” under Title VII.

See 42 U.S.C.

§ 2000e(b) (“employer” is “a person engaged in an industry
affecting commerce who has fifteen or more employees ..., and any
agent of such a person ...”).
individual liability.

See

As such, she is not subject to

Indest v. Freeman Decorating, Inc.,

164 F.3d 258, 262 (5th Cir. 1999) (stating that although Title VII
defines “employer” to include any agent of employer, statute not
interpreted to impose individual liability on the agent); Chehl v.
Southern Univ. and Agric. and Mech. Coll., 34 Fed. Appx. 963 (5th
Cir. 2002) (“Title VII does not impose personal liability on
individuals.”); Grant v. Lone Star Co., 21 F.3d 649 (5th Cir.
1994) (holding that “[o]nly ‘employers,’ not individuals acting in
their individual capacity who do not otherwise meet the definition
of ‘employers,’ can be held liable under Title VII”).
However, gender discrimination claims against individuals are
cognizable under the Equal Protection clause with the substantive
elements being virtually identical to a claim under Title VII.
Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539, 550 (5th
Cir. 1997); Cervantez v. Bexar County Civil Serv. Comm'n, 99 F.3d
730, 734 (5th Cir.1996) (“[W]e have on numerous occasions
recognized that § 1983 and Title VII are parallel causes of
action”).

Thus, to establish a prima facie case of gender

discrimination by Sargent, Felder must establish the following:

15

(1) she was qualified for the position; (2) she suffered an
adverse employment decision; and (3) she was replaced by a male or
that males “were treated differently under circumstances nearly
identical to [hers].”

Mayberry v. Vought Aircraft Co., 55 F.3d

1086, 1090 (5th Cir. 1995).

As in the case where a Title VII

gender claim is asserted, if established, a prima facie case
raises an inference of discrimination, and the burden shifts to
the defendant to articulate a legitimate, nondiscriminatory reason
for its adverse decision.

Patel v. Midland Memorial Hosp. and

Medical Ctr., 298 F.3d 333, 342 (5th Cir. 2002) (citations
omitted).

Should the defendants present such a reason, then the

inference disappears, and the plaintiff must come forward with
evidence that the proffered reason is a pretext for gender
discrimination.

Id.

Here, the court agrees that plaintiff has established a prima
facie case of gender discrimination against Sargent with regard to
her termination.

The only alleged instance of gender

discrimination in which Sargent is alleged to have participated is
the decision to retain Wilbur Walters in his position as deputy
superintendent while non-renewing plaintiff.5

5

And in the court’s

While plaintiff also maintains that she has a claim for
gender discrimination based on the fact that she was not offered
the position of Director of Research, which was instead given to
the less qualified Jason Sargent, defendant Sargent is not alleged
to have been the decisionmaker in that instance. Rather, the
complaint alleges that Walters hired Jason Sargent for the
position.
16

opinion, the complaint adequately alleges that Sargent treated
Wilbur Walters, a male, differently from plaintiff in nearly
identical circumstances.

In response to defendants’ articulated

legitimate non-discriminatory reason for her termination, the
court concludes that the complaint sets forth facts which, if
proven, would create a question of fact as to whether plaintiff
was actually terminated by Sargent on account of her gender.
Accordingly, the court concludes that plaintiff’s request to
conduct immunity-related discovery should be granted on the narrow
issue of whether the reduction in force was, as she contends, a
sham.

In the event plaintiff were to create an issue of fact in

this regard, the court agrees with plaintiff that she will have
satisfied her burden under the second prong of the qualified
immunity analysis to demonstrate that Sargent’s conduct was not
objectively reasonable in light of the clearly established law.
See Piatt v. City of Austin, 378 Fed. Appx. 466, 469 (5th Cir. May
18, 2010) (“Intent is relevant to the first prong [of qualified
immunity analysis] but not to the second prong because officials
generally are precluded from proving that intentionally
discriminatory conduct is objectively reasonable” and “where the
evidence is sufficient to support a claim of intentional gender or
race discrimination, any immunity defense will be foreclosed”).
Felder additionally purports to state a claim against
defendants, including Sargent, for violation of her rights under

17

the FMLA.

In this regard, the complaint avers that JPS required

Felder to apply for FMLA leave commencing April 13, 2011.

It

further alleges that the district thereafter interfered with her
rights by miscalculating her FMLA leave time, failing to give her
notice that she was required to take FMLA leave concurrently with
her receipt of workers’ compensation benefits, rescinding its
approval of her FMLA leave on October 11, 2011 and refusing to
continue to honor the reasonable accommodation of allowing her to
work from home.

Plaintiff seeks “immunity discovery to determine

whether JPS ever designated Dr. Felder’s leave prior to May 25,
2011 as paid or unpaid or as FMLA-qualifying and whether JPS gave
Dr. Felder notice prior to May 25, 2011 that any leave time by her
was FMLA qualifying.”

Under the FMLA, a public employee who

“acts, directly or indirectly, in the interest of an employer”
satisfies the definition of employer under the FMLA and therefore
may be subject to liability in his individual capacity, see Modica
v. Taylor, 465 F.3d 174, 184 (5th Cir. 2006).

Here, the only

allegation against Sargent as it pertains to this claim is that
she denied plaintiff the reasonable accommodation of allowing her
to work from home.

However, as the

FMLA does not require that

employees be reinstated to work with “reasonable accomodations,”
Oatman v. Fuji Photo Film USA, Inc., 54 Fed. Appx. 413 (5th Cir.
Nov. 12, 2002), the claim as pled in the complaint does not allege
the violation of a clearly established right.

18

Accordingly,

defendant Sargent’s qualified immunity remains intact as to this
claim.6
Plaintiff’s remaining state law claim for breach of contract
is based on her allegation that Sargent used her apparent
authority to cause plaintiff’s contract to be breached and that
JPS should have known that Sargent was breaching plaintiff’s
contract.

For their part, defendants characterize plaintiff’s

claim as being for wrongful termination and contend that the claim
is barred by plaintiff’s failure to comply with the notice
provision of the Mississippi Tort Claim Act.

See Miss. Code Ann.

§ 11-46-11 (imposing a 90-day mandatory notice provision as
prerequisite for filing suit); Lamb v. Booneville School Dist.,
2009 WL 843116 (N.D. Miss., March 26, 2009)(dismissing plaintiff’s
wrongful termination claim against school district based on
failure to comply with notice provision of the MTCA).

In the

court’s view, regardless of the application of the MTCA,
plaintiff’s putative claim against Sargent fails for a much more
basic reason.

Namely, as Sargent was not a party to plaintiff’s

contract with JPS, she cannot be liable for its breach.

See

Yarbrough v. Camphor, 645 So. 2d 867, 870 (1994) (while

6

The court offers no opinion at this time on the question
of whether JPS correctly calculated plaintiff’s FMLA leave or
improperly denied her FMLA leave. Because the claim as pled
against Sargent does not allege the violation of a clearly
established right, plaintiff’s request for immunity-related
discovery on the FMLA claim is denied.
19

superintendent has authority and responsibility with respect to
employment of personnel, “the ultimate power to terminate an
employee lies with the school board.”).

See Suddith v. Univ. of

So. Miss., 977 So. 2d 1158, 1175 (Miss. Ct. App. 2007) (setting
forth elements of cause of action for breach of contract,
including that plaintiff prove that defendant “breached the
contract to which it was a party”).

As plaintiff has failed to

state a claim upon which relief can be granted, defendants’ motion
is well taken as to this claim.
Based on the foregoing, it is ordered that the motion should
be granted in part and stayed in part to allow plaintiff to
conduct immunity-related discovery to the extent discussed herein.
The parties are given until January 17, 2014 in which to conduct
the immunity related discovery permitted herein.

Plaintiff’s

supplemental response to the dispositive motion is due on or
before January 31, 2014 with defendants’s supplemental rebuttal
being due on or before February 7, 2014.
SO ORDERED this 5th day of December, 2013.

/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE

20