Matory et al v. Mason et al
Memorandum Opinion and Order granting re 51 MOTION for Judgment on the Pleadings (as to Pre-Employment Claims); granting in part, denying in part 53 MOTION for Summary Judgment , 54 MOTION for Summary Judgment , as set out herein. Signed by District Judge Tom S. Lee on 12/10/18 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 3:16CV989TSL-RHW
HINDS COUNTY SHERIFF VICTOR MASON,
IN HIS INDIVIDUAL CAPACITY, AND
HINDS COUNTY, MISSISSIPPI
MEMORANDUM OPINION AND ORDER
Defendants Hinds County Sheriff Victor Mason, in his
individual capacity, and Hinds County, Mississippi, have moved for
judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c) as to pre-employment claims asserted by plaintiffs
Cheryl Matory and Tomeca Barnes, and they have moved for summary
judgment under Rule 56 as to the rest of plaintiffs’ claims.
Plaintiffs have responded in opposition to all three motions.
court, having considered the memoranda of authorities, together
with attachments submitted by the parties, concludes that the
motion for judgment on the pleadings as to claims based on preemployment conduct should be granted and the motions for summary
judgment as to both plaintiffs’ remaining claims should be granted
in part and denied in part, as set forth herein.
Beginning around 2014, Cheryl Matory, then a corporal and
crime scene investigator with the City of Jackson Police
Department (JPD), began working on Victor Mason’s election
campaign for sheriff of Hinds County.
Matory had known Mason
since high school and agreed to help with his campaign because she
thought he would make a good sheriff.
At some point during the
campaign, Mason offered to hire Matory as his undersheriff in the
event he was elected; she agreed.
The two often discussed
additional potential employees, and at Mason’s request, Matory
began working to recruit certain individuals to work for Mason if
he was elected.
Mason was especially interested in hiring Tomeca
Barnes and told Matory to ask Barnes, who was also a corporal with
JPD, to help with his election campaign.
subsequently promised he would hire her as head of the Sheriff’s
Department’s Internal Affairs Division (IAD) if he was elected.
Mason won the election for Hinds County sheriff in November
2015 and began finalizing his staff selections.
office on December 31, 2015, Mason, as promised, hired Matory as
undersheriff and Barnes as head of the IAD.
Matory asserts that
throughout the campaign, Mason had tried to get her to help
facilitate a sexual relationship between him and Barnes; she
claims that he continued in this manner after he took office.
According to Matory, after becoming sheriff, Mason regularly
directed her to have Barnes come to his office.
When on one
occasion he threatened that she had better do so “or else,” she
asked what he meant by “or else”.
playing. I’ll show you.”
He responded, “[Y]ou think I’m
Matory asserts that after she told Mason
she was not going to arrange for him to have sex with Barnes,
Mason became angry and began to distance himself from her.
long thereafter, her demoted her from undersheriff to crime scene
For her part, Barnes claims that prior to Mason’s taking
office, she had several conversations with him, in person but
mostly via text, in which he made what she believed were sexual
She was able to subtly deflect his advances.
contends that after he became sheriff and she was hired as head of
the IAD, she was often summoned to his office, ostensibly to
report to him on her department’s work; but according to Barnes,
he never appeared interested in what she had to say and instead,
just stared at her.
She states that he made her feel so
uncomfortable by the way he stared at her when she was summoned to
his office that she did not want to be left alone with him.
asked that Matory be allowed to remain in his office during these
meetings, but Mason refused.
Like Matory, Barnes alleges that
after she began to spurn Mason’s unwanted advances toward her, she
was demoted from head of IAD to patrol officer.
According to plaintiffs, after Mason demoted Matory, he
replaced her as undersheriff with Pete Luke, a white male; and he
replaced Barnes with Keith Barnett, a black male.
later – and apparently after Matory filed a charge of
discrimination with the EEOC and received a notice of right to sue
- Matory was terminated.
Barnes resigned in August 2017 while
this action was pending.
Plaintiffs’ Causes of Action
Both plaintiffs have asserted claims under Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983
for sexual harassment, claiming they suffered quid pro quo sexual
harassment as well as sexual harassment based on hostile work
They have also sued under Title VII and § 1983 for
In addition, Matory has purported to sue
for race discrimination under Title VII, § 1983 and § 1981, and
for retaliation under Title VII.
Both plaintiffs have also
asserted state law claims for breach of contract/detrimental
Defendants have moved for judgment on the pleadings or
for summary judgment on all of these claims.
Judgment on the Pleadings: Pre-Employment Sexual Harassment
In their motion for judgment on the pleadings as to preemployment claims, defendants point out that although Mason was
While some courts have noted some uncertainty as to
whether a plaintiff may properly seek recovery against the same
government defendant under both Title VII and § 1983 for the same
alleged acts of discrimination, see, e.g., Wallace v. Desoto Cty.
Sch. Dist., 302 F. Supp. 3d 779, 795 n.8 (N.D. Miss. 2018), most
cases hold that a public employee may bring parallel causes of
action against her government employer under Title VII (for Title
VII violations) and under § 1983 for separate constitutional
violations, even if both claims are premised on the same facts and
conduct, see Crain v. Judson Indep. Sch. Dist., No. SA-16-CV-832
-XR, 2018 WL 1612857, at *4 (W.D. Tex. Apr. 3, 2018) (citing
elected sheriff on November 2, 2015, he was not sworn in as
sheriff until December 31, 2015.
They further note that many of
plaintiffs’ allegations relate to alleged acts of sexual
harassment that occurred before Mason was even elected sheriff and
others that occurred while he was sheriff-elect.
that, as a matter of law, neither Mason nor Hinds County may be
held liable, under Title VII or under § 1983, based on conduct
that predated Mason’s tenure as sheriff.
Rule 12( c) Standard:
The standard for dismissal of a Rule 12(c) motion for
judgment on the pleadings is the same as that for dismissal for
failure to state a claim under Rule 12(b)(6).
385 F.3d 503, 529 (5th Cir. 2004).
Johnson v. Johnson,
In considering a Rule 12(b)(6)
motion to dismiss, the court, liberally construing the complaint
in the light most favorable to the plaintiff and taking as true
all facts pled therein, must determine whether the complaint
states a claim for relief that is plausible on its face.
v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d
868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).
“A claim has
facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Twombly, 550 U.S. at 556, 127 S. Ct. 1955).
With respect to plaintiffs’ § 1983 claims,
defendants maintain that Mason could not have been acting “under
color of law” until he actually assumed the office of Hinds County
Sheriff and that consequently, plaintiffs have no viable claim for
sexual harassment under § 1983 based on actions Mason is alleged
to have taken during his campaign or while sheriff-elect.
“The traditional definition of acting under color of state
law requires that the defendant in a § 1983 action have exercised
power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with authority of state law.”
West v. Atkins, 487 U.S. 42, 49, 108 S. Ct. 2250, 101 L. Ed. 2d 40
(1988) (citations and internal quotations omitted).
Angel v. La Joya Indep. Sch. Dist., 717 F. App'x 372, 376 (5th
Cir. 2017) (“Misuse of power, possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the
authority of state law, is action taken ‘under color of state
Obviously, during the time that he was a mere candidate
for office, Mason did not act under color of state law.
in the court’s opinion, until he assumed office, Mason was not
“clothed with the authority of state law” and hence did not act
under color of state law.
Accordingly, defendants are entitled to
judgment on the pleadings as to plaintiffs’ § 1983 claims to the
extent those claims are based on actions which pre-date December
See Burrell v. City of Mattoon, 378 F.3d 642, 649 (7th
Cir. 2004) (concluding that mayor-elect and city council members,
“though duly elected and sworn, were not yet in office because
they had not been inaugurated as required by City ordinance” and
therefore “were not yet ‘state actors.’”); Carlos v. Santos, 123
F.3d 61, 65 (2d Cir. 1997) (holding that as defendant board member
“had not yet even taken office” he “possessed no power by virtue
of state law to misuse”); Griffith v. Girdler, No. CIV.A. 6:
07-442-DCR, 2009 WL 1956466, at *2 (E.D. Ky. July 8, 2009)
(granting summary judgment on § 1983 claim on basis that the
defendant was the mayor-elect, not mayor, at time of challenged
action and thus was not acting under color of state law); cf.
Brady v. Fort Bend Cty., 145 F.3d 691, 701 (5th Cir. 1998)
(rejecting argument that sheriff-elect did not exercise final
policymaking authority when delivering letters to plaintiffs
advising he did not intend to rehire them as deputies, because
once he assumed office, “he reaffirmed his intention not to rehire
the Plaintiffs and gave effect to that intent by not rehiring the
After [he] took office, he was a state actor wielding
the policymaking authority described above with respect to filling
available deputy positions in the sheriff's department.”)
(emphasis added); Arredondo v. Flores, No. CIV. A. L-05-191, 2008
WL 4450311, at *14 (S.D. Tex. Sept. 30, 2008), aff'd, 347 F. App'x
62 (5th Cir. 2009) (defendant sheriff “became a state actor
wielding policymaking authority after taking office.
with such authority when he gave effect to his personnel decisions
upon taking office, [he] ... acted under color of law.”).
Title VII protects employees from discrimination
by their employers.
“Determining whether a defendant is an
‘employer’ under Title VII ... involves a two-step process.
First, the defendant must fall within the statutory definition.
Second, there must be an employment relationship between the
plaintiff and the defendant.”
Deal v. State Farm Cnty. Mut. Ins.
Co., 5 F.3d 117, 118 n.2 (5th Cir. 1993).
The Fifth Circuit has
held that in Mississippi, the county sheriff, in his official
capacity, and not the County or the sheriff in his individual
capacity, is his deputies’ employer under Title VII.
Oktibbeha Cnty., 246 F.3d 458, 465 (5th Cir. 2001).
See Oden v.
contend that until Mason assumed office as sheriff on December 31,
2015, he could not have been plaintiff’s employer for Title VII
purposes, and that he could have had no employment relationship
with plaintiffs until they became employed by the Sheriff’s
Department in January 2016.
To the extent that plaintiffs attempt to assert a Title VII
hostile work environment sexual harassment claim based on alleged
harassment by Mason prior to his assuming the office of sheriff,
their claim fails as a matter of law.
There cannot have been a
hostile work environment at a time when there was no employment
However, citing Simmons v. Lyon, 746 F.2d 265, 270
(5th Cir. 1984), plaintiffs argue that they have stated a viable
quid pro quo sexual harassment claim based on Mason’s preemployment actions.
The court is unpersuaded.
In Simmons, two
plaintiffs (a mother and daughter) who had been employees of a
defeated sheriff, sued the successor sheriff, Lyons, for gender
discrimination under Title VII alleging that he failed to reappoint them when his term commenced because one of them, the
daughter, had rejected his sexual advances.
The court concluded
that the claim was actionable, notwithstanding that the alleged
act of sexual harassment occurred before Lyons took office,
because “the discriminatory employment violation based on sex or
gender occurred when [he] failed to re-hire [the daughter] on or
after [the date he took office] – allegedly because of her
rejection of his sexual advances —, at which time Lyons was an
employer within the definition of Title VII. 42 U.S.C.
The court further observed that “Title VII's
prohibitions against discriminatory employment practices do not
apply only to an existing employment relationship but also to
prospective employment relationships that do not eventuate because
of the discriminatory conduct—as where an applicant for employment
is denied employment for a prohibited discriminatory reason.”
While there are similarities between the facts of this case
and of Simmons, Simmons is materially distinguishable from the
Similar to Lyons, Mason allegedly made sexual
advances to Barnes before he took office; and he allegedly at
least intimated to Matory that she would not be hired if she
failed to facilitate a sexual relationship between him and Barnes.
However, in contrast to Simmons, plaintiffs herein do not contend
that Mason failed to hire them because of any discriminatory
On the contrary, he hired both of them.
tangible employment action, i.e., plaintiffs’ demotions, occurred
well after they became employed, when Matory thereafter refused to
help him have a sexual relationship with Barnes and when Barnes
began to distance herself from him.
In short, in this case,
unlike Simmons, plaintiffs’ quid pro quo claims are not based on a
failure to hire and are necessarily based on post-employment, not
pre-employment conduct by Sheriff Mason.
Defendants’ motion for
judgment on the pleadings will therefore be granted.
Summary Judgment Standard
Defendants have moved for summary judgment on plaintiffs’
Rule 56(a) provides that “[t]he court shall
grant summary judgment if the movant shows that there is no
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
summary judgment motion, the moving party must initially
“demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91
L. Ed. 2d 265 (1986).
Once the moving party meets its burden, the
burden shifts to the nonmovant, “who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists” and that summary judgment should not be
Norwegian Bulk Transport A/S v. Int’l Marine Terminals
Partnership, 520 F.3d 409, 412 (5th Cir. 2008).
A party opposing
a properly supported motion for summary judgment may not rest upon
mere allegations or denials in a pleading, and unsubstantiated
assertions that a fact issue exists will not suffice.
477 U.S. at 323.
Instead, “the nonmoving party must set forth
specific facts showing the existence of a ‘genuine’ issue
concerning every essential component of its case.”
Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
In considering a motion for summary judgment, all reasonable
inferences to be drawn from both the evidence and undisputed facts
are to be viewed in the light most favorable to the nonmoving
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587-88, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
the record, viewed in this light, could not lead a rational trier
of fact to find” for the nonmovant, then summary judgment is
Kelley v. Price-Macemon, Inc., 992 F.2d 1408, 1413 (5th
Cir. 1993) (citing Matsushita, 106 S. Ct. at 1351).
On the other
hand, if “the factfinder could reasonably find in [the
nonmovant’s] favor, then summary judgment is improper.”
Barnes has purported to sue Hinds County and Sheriff Mason,
in his individual and official capacities, for race discrimination
in violation of § 1981.
To the extent she has pled § 1981 as an
independent cause of action against defendants and not under the
remedial provisions of § 1983, her claim based on § 1981 must be
See Montgomery-Smith v. Louisiana Dep't of Health &
Hosps., 299 F. Supp. 3d 790, 805 (E.D. La. 2018) (citing Felton v.
Polles, 315 F.3d 470, 482 (5th Cir. 2002), abrogation on other
grounds recognized by Jackson v. Honeywell Intern., Inc., 601 Fed.
App’x 280 (5th Cir. 2015), and explaining that “when a state
employee seeks to hold an individual fellow state employee liable
in damages for violation of § 1981 rights, such claim must also be
pursued under the remedial provisions of § 1983.”).
Title VII/Section 1983
Title VII prohibits an employer from “discharg[ing] an
individual, or otherwise discriminat[ing] against any individual
... because of such individual's race, color, religion, sex, or
42 U.S.C. § 2000e–2(a)(1).
imposes liability on those who, under color of state law,
“subject ... any citizen ... to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
42 U.S.C. § 1983.
Sex discrimination and sexual
harassment in public employment, and race discrimination in public
employment, violate the Equal Protection Clause of the Fourteenth
See Southard v. Tex. Bd. of Crim. Justice, 114 F.3d
539, 550 (5th Cir. 1997) (sex discrimination/harassment); Police
Ass'n of New Orleans Through Cannatella v. City of New Orleans,
100 F.3d 1159, 1167 (5th Cir. 1996) (race discrimination).
alleging such violations are thus actionable under § 1983.
A plaintiff who alleges the same conduct for both Title VII
and § 1983 claims may seek redress under both statutes, as long as
the “conduct violates both Title VII and a separate constitutional
or statutory right.”
(5th Cir. 2001).
Evans v. City of Houston, 246 F.3d 344, 356
See also Lauderdale v. Texas Dep't of Criminal
Justice, Institutional Div., 512 F.3d 157, 166 (5th Cir. 2007)
(citing Cervantez v. Bexar County Civil Serv. Comm'n, 99 F.3d 730,
734 (5th Cir. 1996) (§ 1983 and Title VII are “parallel causes of
In a Title VII action, the only proper defendant is the
plaintiffs’ “employer”, which in this case, was Sheriff Mason, in
his official capacity.
See Oden, 246 F.3d at 465 (holding that in
Mississippi, proper Title VII defendant was the sheriff in his
official capacity, rather than the county or the sheriff
since by statute, Miss. Code Ann. § 19–25–19,
sheriff was “solely responsible for hiring, promoting, and
establishing the deputies' wages” and “was the elected official
who made all decisions concerning promotions within the Sheriff's
However, while neither Hinds County nor Sheriff
Mason, in his individual capacity, was plaintiffs’ employer for
Title VII purposes, both are subject to potential liability under
§ 1983 for the alleged discrimination.
When a plaintiff brings claims under Title VII and § 1983
premised on the same set of facts, the court evaluates both claims
under the standard governing Title VII actions.
See Irby v.
Sullivan, 737 F.2d 1418, 1431 (5th Cir. 1984) (“[W]hen section
1983 is used as a parallel remedy with Title VII in a racial
discrimination suit the elements of a cause of action are the same
under both statutes.”); see also Lauderdale, 512 F.3d at 166
(inquiry is essentially the same for actions brought under Section
1983 and Title VII) (citations omitted).
To maintain a claim for sexual harassment under Title VII or
§ 1983, a plaintiff must demonstrate: (1) that she belongs to a
protected group; (2) that she was subjected to unwelcome sexual
harassment; (3) that the harassment complained of was based upon
sex; and (4) that the harassment complained of affected a term,
condition, or privilege of employment.
505, 509 (5th Cir. 1999).
Watts v. Kroger, 170 F.3d
To prove the harassment affected a
term, condition, or privilege of employment, she must prove that
it either resulted in a tangible employment action (quid pro quo)
or was severe or pervasive (hostile work environment).
v. Miss. Valley State Univ., No. 4:12-CV-007-SA-JMV, 2013 WL
123730, at *2 (N.D. Miss. Jan. 9, 2013) (citing Burlington Indus.,
Inc. v. Ellreth, 524 U.S. 742, 753–54, 118 S. Ct. 2257, 141 L. Ed.
2d 633 (1998)).
Plaintiffs herein allege both quid pro quo and
hostile work environment theories of sexual harassment, charging
Mason’s repeated unwanted and unwelcomed demands for
Matory to arrange sexual liaisons with Barnes had the
effect of unreasonably interfering with the Plaintiffs’
work performance and creating an intimidating, hostile
and offensive working environment for both women.
Mason and Hinds County, Mississippi conditioned the
terms and conditions of [plaintiffs’] continued
employment on Matory’s willingness to arrange sexual
liaisons between Barnes and Mason and Barnes’s
willingness to have unwanted sex with Mason.
Hostile Work Environment:
Harassing conduct affects a “term,
condition, or privilege of employment” so as to create a hostile
work environment, “only if it is either ‘severe’ or ‘pervasive.’”
Higgins v. Lufkin Indus., Inc., 633 F. App'x 229, 235 (5th Cir.
2015) (citations omitted).
“To be actionable, the challenged
conduct must be both objectively offensive, meaning that a
reasonable person would find it hostile [or] abusive, and
subjectively offensive, meaning that the victim perceived it to be
Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874
(5th Cir. 1999).
When determining whether an environment is
hostile or abusive, the court must look at the totality of the
circumstances, taking into account such factors as “the frequency
of the conduct, its severity, the degree to which the conduct is
physically threatening or humiliating, and the degree to which the
conduct unreasonably interferes with an employee's work
Barnett v. Boeing Co., 306 F. App'x 875, 879 (5th
Cir. 2009) (quotation marks and citations omitted).
Here, as explained supra pp. 7-10, the court may consider
only evidence of Mason’s alleged harassing conduct that occurred
from the time he took office on December 31, 2015, in determining
whether plaintiffs have presented sufficient evidence to create a
genuine issue of material fact on their respective hostile work
Having done so, the court concludes that
Matory has presented sufficient evidence to withstand summary
judgment on this claim, but Barnes has not.
Barnes testified that her duties as head of the Internal
Affairs Division (IAD) with the Sheriff’s Department included
meeting with Sheriff Mason, usually two to three times a week, to
brief him on the activities and findings of the IAD.
testified that when she first began meeting with Sheriff Mason to
give him briefings after becoming employed by the Sheriff’s
Department, he would greet her by hugging her.
This “didn’t feel
right,” she testified, so she told him she was going to “forgo the
hugs” and “just shake his hand,” after which there were no more
Barnes further testified that when she met with Sheriff
Mason for these briefings, she noticed he was not interested in
the matter on which she was briefing him, and instead, he would
just stare at her “in a seductive manner,” as though he was
“undressing [her] with his eyes.”
The way he looked at her made
her feel uneasy to such an extent that she did not want to meet
with him alone and asked Matory to remain in the room for the
meetings; Mason, though, generally would not allow Matory to stay.
As additional evidence of alleged sexual harassment, Barnes
recounted an exchange of text messages with Sheriff Mason over
several days during late January 2016, while she was away on drill
duty with the National Guard.
In response to a text inquiry by
Sheriff Mason as to her whereabouts, Barnes texted a picture of
herself in her military uniform.
The next day, Mason texted her a
picture of another person in a military uniform that he said he
thought looked like her, and he asked her to send him a “selfie.”
When she responded that she had sent one the day before, he
responded, “That was yesterday.”
Two days later, Mason again
texted Barnes the picture of the other person in military uniform;
and the following day, he texted to her the picture she had
originally sent to him and asked, “[W]hen did you take this
She responded by sending him two more pictures of
herself in full military gear, to which he replied, “Nice!!!
wow look at you.
She replied, “No.
Lastly, Barnes testified that following her demotion in
July 2017, Sheriff Mason came to a training session and while
heading to the front of the room, he stopped next to her and
touched or “caressed” her shoulder.
In summary, Mason’s behavior, as described by Barnes,
consisted of his leering at her during meetings, hugging her on
occasion until she asked him to stop, engaging in what could be
interpreted as flirtatious texting, and caressing her shoulder on
Such behavior could not reasonably be found to have
been sufficiently severe or pervasive to alter Barnes’ conditions
of employment and therefore cannot establish a hostile work
For her part, Matory testified that once she became employed
by the Sheriff’s Department, Mason constantly asked her about
Barnes, telling her to call or text Barnes to come to his office
and trying to get her “to make sexual arrangements” with Barnes
According to Matory, this sort of thing happened not
just every once in a while, but all the time, every day, every
time she saw him.
Matory testified that in addition to Sheriff
Mason’s constantly insisting that she help arrange a sexual
encounter between him and Barnes, Mason told her on one occasion,
“Well, if you don’t get Tomeca to do it, then what about you?”
also ordered her to kiss an employee (nicknamed “Lips”); asked her
several times what she would do if she came into his office and it
“smelled like ass”; and made numerous comments to the effect of
“everybody loves dick” (which he claims referred to an employee
named Richard Brown).
In support of their motion as to Matory, defendants argue,
inter alia, that there is no precedent to support a claim for a
hostile work environment based on allegations that a plaintiff was
asked by an employer about the employer having sex with a third
However, in Davenport v. Edward D. Jones & Co., L.P.,
albeit in the context of reviewing a quid pro quo claim, the Fifth
Circuit observed that “a plaintiff simply must show that the
tangible employment action she suffered resulted from her
‘acceptance or rejection of h[er] supervisor’s alleged sexual
891 F.3d 162, 171 (5th Cir. 2018) (quoting Alaniz
v. Zamora-Quezada, 591 F.3d 761, 772 (5th Cir. 2009) (allowing quid
pro quo claim to proceed where the plaintiff alleged her
supervisor conditioned bonuses upon her agreeing to date a
Significantly, the court defined “sexual harassment” as
“[u]nwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature.”
(quoting Simmons, 746 F.3d at 270).
In the court’s opinion, under
this definition, Mason’s insistence that Matory arrange a sexual
encounter between him and Barnes could reasonably be found to
qualify as sexual harassment.
Cf. Sirois v. East West Partners,
Inc., 285 F. Supp. 3d 1152, 1162-63 (D. Hawaii 2018) (plaintiff’s
allegation that her supervisor “direct[ed] her to plan and attend
events intended to have a sexually charged environment that
included ‘pimping out’ [supervisor’s] wife to” a client was
“directly related to the hostile work environment that [such
supervisor] allegedly created.”).
Defendants argue, moreover, that the alleged conduct of
Sheriff Mason subsequent to his taking office as sheriff was not
sufficiently severe or pervasive to demonstrate a hostile work
The court does agree that the conduct identified,
considered singly or in combination, does not qualify as severe.
However, “to survive summary judgment on a hostile environment
claim, a plaintiff need only show that the harasser's conduct was
‘severe or pervasive.’ [She] does not have to prove both.”
v. Catalyst Tech., Inc., 302 F.3d 474, 482–83 (5th Cir. 2002)
In the court’s opinion, Matory’s testimony
describing Sheriff Mason’s unrelenting insistence that she arrange
a sexual encounter with Barnes and veiled threats of what would
happen if she did not comply is sufficient to create a genuine
issue of material fact on this question.2
Quid Pro Quo:
Each of the plaintiffs has testified that she
was demoted for her rejection of Mason’s sexual advances or
refusal to provide sexual favors.
To succeed on a claim of quid
pro quo sexual harassment, a plaintiff must show that she suffered
a “tangible employment action” that “resulted from [her]
acceptance or rejection of [her] supervisor's alleged sexual
The issue of pretext is addressed infra pp. 23-25.
Casiano, 213 F.3d at 283–84.
Both plaintiffs have
presented evidence they were demoted, Matory from undersheriff to
crime scene investigator and Barnes from head of IAD to patrol
In the court’s opinion, both have also presented
sufficient evidence of causation to withstand summary judgment on
In this regard, Matory has testified that although Sheriff
Mason never explicitly said that her continued employment as
undersheriff depended on her arranging a sexual encounter between
him and Barnes, the threat was clearly implied.
For example, on
one of the many occasions he told her to get Barnes to come to his
office, he told her, “Well, if you don’t [get Barnes in here], you
know, well, [you have your] job to consider.”
Another time, he
told her to get Barnes to his office “or else.”
When she asked
what he meant by that, he told her, “You think I’m playing.
Moreover, Matory maintains that Mason followed through with
his veiled threats when he demoted her in July 2016.
Matory testified that when she began telling Mason, sometime in
April or May, that she was not going to help arrange for him to
have sex with Barnes, he became angry and began to distance
himself from her; he would not answer her calls and did not
respond to her texts.
She stated that the week before she was
demoted, after he persisted in asking her about Barnes, she became
agitated and again told him she was not going to help him with
She could tell at the time that he was upset and angry.
The following week, she received notice that she had been demoted.
Defendants argue that since Matory has conceded that Sheriff
Mason never explicitly told her that her employment was contingent
on her getting Barnes to have sex with him, she has no cognizable
Mason’s alleged comments, they seem to suggest, were too
vague and unspecific to be construed as implying a threat to her
The court is not persuaded.
A reasonable jury could
well find an implied threat in his comments,3 and could also find
that she was demoted because of her refusal to help provide the
sexual favors he requested.
The court further concludes that defendants have not
demonstrated entitlement to summary judgment on Barnes’ quid pro
quo sexual harassment claim.
In contrast to Matory, there is no
evidence that Sheriff Mason ever explicitly propositioned Barnes
or requested sexual favors of her.
However, “there is no
requirement of an explicit sexual proposition to support a quid
While Mason’s pre-employment actions do not provide a
basis for a cause of action or for recovery on any claim in this
cause, that does not mean that his actions and statements prior to
being sworn in are irrelevant. On the contrary, his alleged preemployment threats to Matory, for example, would be relevant in
discerning the meaning of his alleged “or else” and “I’ll show
you” comments to Matory.
pro quo claim and even conduct that is merely ‘inappropriate,’
considered cumulatively, may suffice to demonstrate a sexual
advance on which such a claim can be based.”
Coe v. N. Pipe
Prod., Inc., 589 F. Supp. 2d 1055, 1084 (N.D. Iowa 2008).
according to Barnes’ testimony, she perceived Mason’s actions
– the leering, hugging, and flirtatious texting – to
have sexual undertones which made her uncomfortable.
evidence of record, it cannot be said as a matter of law that her
belief was unreasonable.
That is to say, there is evidence from
which a reasonable juror might conclude that Mason was making
sexual advances toward her.
Furthermore, Barnes has testified
that soon after she began to distance herself from Mason and after
Matory made clear that she would not facilitate a sexual encounter
between Mason and Barnes, Barnes was demoted.
has presented sufficient evidence to support the elements of her
claim for quid pro quo sexual harassment.
Defendants argue that whereas they have articulated
legitimate nondiscriminatory reasons for demoting and terminating
Matory and for demoting Barnes, plaintiffs have failed to come
forward with evidence to show that these reasons were pretext for
In this regard, defendants claim that Barnes was
demoted because “she failed to follow the appropriate chain of
command when required to do so” and “had great difficulty getting
along with co-workers.”
Barnes has offered sworn testimony
denying both assertions.
Defendants state that Matory was demoted because she “quit
fulfilling her duties as undersheriff.
In particular, [she] had
too much difficulty making decisions and carrying out her
In addition, Matory had difficulty
getting along with co-workers.”
However, Matory, like Barnes, has
testified by deposition that there is no merit to these charges.
Plaintiffs’ sworn deposition testimony is competent evidence to
create a genuine issue of material fact on the issue of pretext.
Matory alleges that in addition to being demoted, she was
ultimately terminated because of her refusal to arrange sexual
encounters between Mason and Barnes.
Defendants have offered a
couple of different explanations for Matory’s termination.
sworn responses to interrogatories, they asserted that Matory was
terminated “for failing to fulfill her obligations as crime scene
In particular, [she] failed to respond to calls as
crime scene investigator on more than one occasion.
[she] had too much difficulty making decisions.
[she] had difficulty getting along with co-workers.”
Sheriff Mason testified that Matory was terminated based on her
inappropriate/unprofessional conduct after being placed on
administrative leave for failing to respond to calls as a crime
According to Sheriff Mason, after being
placed on leave, Matory attempted to depart the sheriff’s office
in a patrol car.
When told she would need to leave the vehicle,
she got out of the vehicle, left it parked in the middle of the
street and walked away with the keys in her pocket.
circumstances of Matory’s departure on that occasion are not clear
from the record, the court will deny the motion for summary
judgment as to Matory’s quid pro quo claim based on her
Gender Discrimination/Race Discrimination:
In addition to alleging gender discrimination in the form of
sexual harassment, Matory also alleges that she was subjected to
disparate treatment based on her female gender and on the basis of
Sheriff Mason has asserted that plaintiffs’ claims
against him in his individual capacity are barred by his qualified
immunity. However, if he engaged in intentional sexual
harassment, an issue as to which the court finds there is a
genuine issue of material fact, then he has no qualified immunity.
See Lauderdale v. Texas Dep't of Criminal Justice, Institutional
Div., 512 F.3d 157, 166 (5th Cir. 2007) (“[Q]ualified immunity can
never offer protection for sexual harassment because, if it is
actionable at all, the harassment is by definition objectively
offensive and unreasonable, and qualified immunity protects only
the ‘objectively reasonable[.]’”) (citation omitted).
Hinds County and Sheriff Mason in his official capacity have
argued that they cannot be liable under § 1983 since plaintiffs
have failed to identify an official policy. However, Sheriff
Mason is the final policymaker and therefore, his actions
constitute official policy. See Brady v. Fort Bend Cty., 145 F.3d
691, 698 (5th Cir. 1998) (explaining that “a single action by a
municipal official possessing final policymaking authority
regarding the action in question constitutes the official policy
of the municipality”); Patton v. Wayne Cty., Miss., No.
2:16-CV-186-KS-MTP, 2018 WL 355150, at *6 (S.D. Miss. Jan. 10,
2018) (sheriffs are final policymakers in Mississippi with full
authority over employment decisions in their department).
To succeed on a claim of disparate treatment, a
plaintiff must prove that (1) she was a member of a protected
class; (2) she was qualified for the position; (3) she suffered an
adverse employment action; and (4) she was replaced by someone
outside her protected class or was treated less favorably than a
similarly situated person outside the protected class in nearly
Okoye v. Univ. of Tex. Houston Health
Science Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).
As the basis for her race/gender discrimination claim, Matory
alleges that upon her demotion from undersheriff to crime scene
investigator, she was replaced by a white male, Pete Luke.
Defendants suggest that Matory cannot prevail on this claim in
view of her deposition testimony that Pete Luke was never actually
designated as “undersheriff” afer her demotion.
Matory did so
However, she also testified that while Luke may not have
officially been given the title of “undersheriff,” he was
effectively the undersheriff as he was elevated from sergeant to
major and assumed all the job duties she had performed as
In the court’s opinion, this testimony creates a
genuine issue of material fact as to whether she was replaced as
undersheriff by Pete Luke.
Defendants additionally argue that Matory has failed to
present sufficient evidence of pretext to withstand summary
judgment on this claim.
The court rejects this argument for the
reasons set forth supra pp. 23-25.
Retaliation: Title VII
Plaintiffs allege that in retaliation for their unwillingness
to fulfill Mason’s sexual desires, he “refused to ensure that they
were paid the salary he promised while recruiting them”, then
demoted them and later terminated Matory.5
further, that she was terminated in retaliation for filing a
charge of discrimination with the EEOC.6
“The burden-shifting structure applicable to Title VII
discrimination cases, as set forth in [McDonnell Douglas], is
applicable to Title VII unlawful retaliation cases.”
Pennzoil Co., 207 F.3d 296, 299 (5th Cir. 2000).
To establish a
In her response memorandum, Barnes asserts that she was
constructively discharged in August 2017. She goes on to argue
that her constructive discharge was a tangible employment action
supporting her quid pro quo claim, and she also suggests it was a
materially adverse employment action supporting a claim for
retaliation for rejecting Mason’s sexual advances and for filing
an EEOC charge. However, there is nothing in the operative
complaint even hinting that Barnes was constructively discharged.
In fact, at the time the original complaint and amended complaints
were filed, Barnes was still employed by the Sheriff’s Department
and in the wake of her resignation, she has not moved to amend her
complaint to include a claim based on an alleged constructive
Barnes filed a complaint of discrimination with the EEOC
in July 2016, following her demotion. Although she intimates in
her response memorandum that she was retaliated against as a
result of filing that charge of discrimination, she has made no
allegation to that effect in her complaint.
prima facie case of Title VII retaliation, “a plaintiff must show
that: (1) [s]he engaged in activity protected by Title VII;
(2) [s]he was subjected to an adverse employment action; and,
(3) a causal link existed between the protected activity and the
adverse employment action.”
Davis v. Dallas Area Rapid Transit,
383 F.3d 309, 319 (5th Cir. 2004) (citing Banks v. E. Baton Rouge
Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003)).
Citing Moore v. Bolivar County, Mississippi, No.
4:15-CV-145-DMB-JMV, 2017 WL 5973039, at *10 (N.D. Miss. Dec. 1,
2017), plaintiffs argue that an employee’s rejection of her
supervisor’s alleged sexual advances is protected activity under
In at least two cases, however, the Fifth Circuit has
affirmed summary judgment on Title VII retaliation claims where
the only arguable protected activity was an employee’s rejection
of her supervisor’s advances.
See LeMaire v. Louisiana Dep't of
Transp. & Dev., 480 F.3d 383, 389 (5th Cir. 2007); Frank v. Harris
County, 118 Fed. Appx. 799, 804 (5th Cir. 2004).
Filing an EEOC charge is clearly protected activity.
Vadie v. Miss. State Univ., 218 F.2d 365, 379 (5th Cir. 2000).
However, Matory’s claim that she was terminated in retaliation for
filing an EEOC charge fails for another reason.
exclusively on temporal proximity to establish a causal link
between the filing of her EEOC charge and her termination.
is, she relies solely on the fact that she was terminated five
months after filing her EEOC charge.
The Fifth Circuit has held
that a period of five months “is not the kind of ‘very close’
temporal proximity that has been recognized as providing
sufficient evidence of causality, in and of itself, to establish a
prima facie case of retaliation.”
Everett v. Cent. Miss., Inc.
Head Start Program, 444 F. App'x 38, 47 (5th Cir. 2011).
motion for summary judgment will be granted as to both plaintiffs’
claims for retaliation under Title VII.
Plaintiffs assert a state law claim for detrimental reliance
based on allegations that Mason, acting with apparent authority,
promised them they would be paid certain salaries upon becoming
employed by the Hinds County Sheriff’s Department; that he knew or
should have known they would rely to their detriment on the
salaries he promised; and yet he failed to honor that promise once
he took office.
Defendants have offered various reasons
plaintiffs’ claims cannot succeed, each of which, in the court’s
opinion, is mistaken or misplaced in one way or another.
reference to Matory, defendants first argue that her claim fails
because Mason’s promise to hire her as undersheriff was made prior
to his being elected sheriff.
Her claim, though, is not based on
Mason’s failure to hire her as his undersheriff but rather his
failure to pay her the salary he allegedly promised her.
Defendants next argue that the proof shows that Matory was, in
fact, paid the salary she was promised.
The evidence regarding
what she was promised and what she was actually paid as
undersheriff is murky.
Defendants purport to have adduced payroll
records which establish her actual salary; but no such records
have been presented.
Moreover, in her deposition, when presented
with payroll records by defendants, Matory disputed their accuracy
and insisted she was not paid what she was promised (although she
was unclear about the amount she was promised and the amount she
In light of this evidence, the court is unable to
conclude that summary judgment is warranted.
Defendants argue that Barnes’ detrimental reliance claim
fails as a matter of law since Barnes admitted that Mason’s
alleged promise regarding the salary she would be paid was made
prior to his being elected sheriff.
That is not the case.
plainly testified that the promise was made after Mason was
Lastly, defendants declare that both plaintiffs’
detrimental reliance claims are barred by the Mississippi Tort
Claims Act (MTCA), Miss. Code Ann. § 11-46-1 et seq..
however, to explain why the MTCA would bar these claims.
Defendants correctly point out that the Mississippi Legislature
declared in § 11-46-3(1) its intent to provide immunity for
political subdivisions “from suit at law or in equity on account
of any wrongful or tortious act or omission or breach of implied
term or condition of any warranty or contract.”
Code Ann. § 11–46–5 provide[s] a limited waiver of the immunity
granted under Section 11–46–3....”
City of Jackson v. Estate of
Stewart ex rel. Womack, 908 So. 2d 703, 711 (Miss. 2005).
limited waiver of immunity has been found to apply to claims for
detrimental reliance/promissory estoppel.
See Weible v. Univ. of
S. Miss., 89 So. 3d 51, 60 (Miss. Ct. App. 2011) (noting that the
plaintiff’s arguments concerned issues regarding implied
contracts, such as promissory and equitable estoppel [and]
detrimental reliance,” and observing that “[t]he Mississippi
Supreme Court has interpreted ... section 11–46–5 (Rev. 2002) of
the MTCA to provide a limited waiver of immunity for breach of
implied terms of contract to the extent of the maximum amount of
liability allowed under [Miss. Code Ann.] section 11–46–15 (Rev.
2002)); Suddith v. Univ. of S. Miss., 977 So. 2d 1158, 1177 (Miss.
Ct. App. 2007) (finding that claims of promissory estoppel,
equitable estoppel, and detrimental reliance were governed by the
Defendants have offered no valid basis for concluding
that the MTCA bars either plaintiff’s detrimental reliance claim.
Plaintiffs’ detrimental reliance claim is in the nature
of promissory estoppel, which requires proof of the following:
“(1) a representation that later proves to be untrue; (2) an
action by the person seeking to invoke the doctrine, such action
being undertaken on justifiable reliance of the representation;
and (3) a resulting detriment to that person arising from his
action.” Suddith v. Univ. of S. Miss., 977 So. 2d 1158, 1180
(Miss. Ct. App. 2007) (internal quotation marks and citation
Breach of Contract/Wrongful Termination
In their amended complaint, plaintiffs allege, “Mason knew or
should have known that he was breaching Matory’s contract and that
he could not fire Matory because she refused to arrange sexual
encounters between Mason and Barnes in violation of Mississippi’s
public policy against solicitation and/or human trafficking.”
is undisputed Matory had no express contract of employment and
that her employment was therefore at-will.
See Rosamond v.
Pennaco Hosiery, Inc., a Div. of Danskin, Inc., 942 F. Supp. 279,
285 (N.D. Miss. 1996) (under Mississippi law, “[i]n the absence of
a contract of employment for a specified term, all employees are
deemed to be at-will.”).
Thus, she could be fired “for a good
reason, a wrong reason, or for no reason at all.”
Kelly v. Miss.
Valley Gas Co., 397 So. 2d 874, 874-75 (Miss. 1981).
Mississippi Supreme Court has carved out a narrow public policy
exception to the doctrine, holding that “an employee who refuses
to participate in an illegal act” or “an employee who is
discharged for reporting illegal acts of his employer” may bring
an action in tort against the employer.
McArn v. Allied
Bruce-Terminix Co., Inc., 626 So. 2d 603, 607 (Miss. 1993).
Matory does not allege she was discharged for reporting illegal
acts but rather that she was terminated for refusing to
participate in an allegedly illegal act.
As McArn recognized, an employee must be protected “from
being forced to choose between committing a crime and losing” her
See Frank v. City of Flowood, 203 So. 3d 786, 792 (Miss. Ct.
App.), reh'g denied (Aug. 30, 2016), cert. denied, 204 So. 3d 290
To succeed on a wrongful termination claim under
this McArn exception, the actions complained of actually must be
criminal in nature.
King v. Newton County Bd. of Sup'rs., 144
Fed. Appx. 381, 385-386 (5th Cir. 2005).
The challenged acts must
warrant the imposition of criminal penalties, not merely civil
Hammons v. Fleetwood Homes of Miss., Inc., 907 So. 2d
357, 360 (Miss. App. 2004) (citing Paracelsus Health Care Corp. v.
Willard, 754 So. 2d 437, 443 (Miss. 1999)).
argued in their summary judgment motion that even if Matory’s
version of the facts is accepted as true,8 Mason did not ask
Matory to engage in the alleged criminal activity merely by asking
her to help facilitate a sexual encounter between him and Barnes.
Indeed, the facts claimed by Matory do not support a finding that
Defendants have argued that Matory has failed to come
forward with evidence tending to show she was terminated for
refusing to facilitate a sexual encounter/relationship between
Mason and Barnes, and that the evidence of record establishes
beyond dispute that she was fired for deficiencies in her job
performance and/or for her unprofessional conduct. The court,
however, has rejected this position.
she was asked to participate in the crimes of solicitation and/or
human trafficking, as she alleges in the complaint.9
Fair Labor Standards Act
Matory asserts that from the time she was demoted to crime
scene investigator in July 2016 until she was terminated on
December 28, 2016, she “worked eight hours every week day and was
on call after she left work on all week days and was on call all
day on both weekend days,” and was not paid for her on-call work,
in violation of the Fair Labor Standards Act (FLSA).
reasonably clear from the complaint that Matory is claiming she
was not compensated for time she was on call but not actually
working, but it is less clear whether she is also alleging she was
not compensated for time she spent responding to calls for her
services as a crime scene investigator while she was on call.
this regard, the complaint refers to defendants’ failure to
Matory alleges in the complaint that she was asked to
participate in the crimes of solicitation and/or human
trafficking. Solicitation, which is proscribed by Miss. Code Ann.
§ 97-29-51, involves payment for sex. As defined in Mississippi
Code Annotated § 97-3-54.1(1)(a), a person engages in human
trafficking if he/she “coerces, recruits, entices ... or obtains
by any means, or attempts to coerce, recruit, entice ... or obtain
by any means, another person, intending or knowing that the person
will be subjected to forced labor or services....” Neither
describes what Matory alleges was asked of her by Mason.
The court notes that in her response, Matory makes no mention
of being asked to participate in the crimes of solicitation and/or
human trafficking. Instead, she argues that she was terminated
for refusing to violate a federal criminal statute, 18 U.S.C.
§ 241, which addresses conspiracy to violate civil rights. As
that was not the claim alleged in the complaint, the court will
disregard her argument on this point.
compensate her for her “on-call work,” not just her “on-call
In her response brief, Matory argues that she was not
compensated for her on-call time but also asserts that “pay
records show the defendants never paid Matory overtime when she
responded to calls.
Although her time records show she worked 13
hours each month, there is no evidence Matory was paid time and a
half for the additional hours she worked each week.”
court’s opinion, the reference in the complaint to “on-call work”
can reasonably be read to cover both actual work for calls
received while on call and to idle time while on call.
did not move for summary judgment as to the former.10
for summary judgment as to the latter will be granted.
Under the FLSA, “no employer shall employ any of his
employees ... for a workweek longer than forty hours unless such
employee receives compensation for his employment in excess of the
hours above specified at a rate not less than one and one-half
times the regular rate at which he is employed.”
Whether an employee’s time spent on-call but not
performing any active service for her employer is considered
working time for FLSA purposes depends on the circumstances.
the employee, while on call, “‘can use the time effectively for
his or her own purposes,’” then the time is not compensable.
They did not address Matory’s argument in her response
regarding the failure to compensate her for overtime hours spent
for responding to calls.
Bright v. Houston Nw. Med. Ctr. Survivor, Inc., 934 F.2d 671, 676
(5th Cir. 1991) (quoting Halferty v. Pulse Drug Co., 864 F.2d
1185, 1189 (5th Cir. 1989)).
The Fifth Circuit has found an
employee’s on-call time is generally not compensable unless the
employee, while on-call, has “‘almost no freedom at all.’”
(quoting Hafferty, 864 F.2d at 1190).
See, e.g., Bright, 934 F.3d
at 676 (employee who “was free to be at his home or at any place
or places he chose, without advising his employer, subject only to
the restrictions that he be reachable by beeper, not be
intoxicated, and be able to arrive at the hospital in
‘approximately’ twenty minutes,” and who “was not only able to
carry on his normal personal activities at his own home, but could
also do normal shopping, eating at restaurants, and the like, as
he chose,” was not entitled to compensation while on-call);
Hafferty, 864 F.2d at 1189 (holding that where employee was able
to “visit friends, entertain guests, sleep, watch television, do
laundry, and babysit” while on-call, “she could use the time for
her own purposes and that she [was] not entitled to compensation
for her idle time....”); Brock v. El Paso Natural Gas Co., 826
F.2d 369, 370 (5th Cir. 1987) (concluding that on-call employee
was not entitled to compensation for on-call time where he was
“free to eat, sleep, entertain guests, watch television, or engage
in any other personal recreational activity, alone or with his
family, as long as he [was] within hailing distance of the alarm
and the station”).
Here, the evidence clearly establishes that Matory’s time
spent on-call, but not actually performing any services for the
Sheriff’s Department, may not properly be considered working time
and hence is not compensable.
Matory does not dispute that she
was able to leave the Hinds County Detention Center each day and
go home or wherever she chose to engage in whatever activities she
She argues, though, that she “had almost no freedom at
all” because she was the only crime scene investigator and had no
one to relieve her.
However, like Matory, the employee at issue
in Bright “never had any relief from his on-call status during his
nonworking hours”, but the Fifth Circuit found this was “wholly
irrelevant” to whether his on-call time was compensable.
934 F.2d at 678.
Based on all of the foregoing, it is ordered that defendants’
motion for judgment on the pleadings as to pre-employment claims
It is further ordered that defendants’ motions for
summary judgment are granted in part and denied in part, as set
SO ORDERED this 10th day of December, 2018.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
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