McMullin v. Mississippi Department of Public Safety et al
Filing
112
ORDER denying 94 Motion to Enforce Settlement Agreement by Way of Partial Summary Judgment ; denying 96 Motion for Contempt. Signed by District Judge Henry T. Wingate on 9/28/2019 (nd)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
GAYLE MILLER MCMULLIN
vs.
PLAINTIFF
CIVIL ACTION No.: 3:17-CV-95-HTW-LRA
MISSISSIPPI DEPARTMENT OF
PUBLIC SAFETY;
MARSHALL FISHER, in his official
Capacity as Commissioner of the
MISSISSIPPI DEPARTMENT OF
PUBLIC SAFETY; and
CHRIS GILLARD, in his official
Capacity as Colonel for the
MISSISSIPPI DEPARTMENT OF
PUBLIC SAFETY
DEFENDANTS
ORDER
BEFORE THIS COURT are two motions [Docket nos. 94 and 96] filed by Plaintiff Gayle
Miller McMullin (hereinafter referred to as “Plaintiff”). Plaintiff submitted her Motion to Enforce
Settlement Agreement by Way of Partial Summary Judgment and Citation of Contempt [Docket
no. 94] and supporting memorandum brief [Docket no. 95] on November 19, 2018. Plaintiff filed
an identical motion and supporting memorandum of law [Docket nos. 96-97] on the same day.
Plaintiff’s two motions and supporting briefs are undistinguishable in every respect 1.
Defendants, Mississippi Department of Public Safety (“MDPS”), Commissioner Marshall
Fisher in his official capacity and Colonel Chris Gillard in his official capacity (hereinafter
collectively referred to as “Defendants”) filed their response in opposition and memorandum brief
of law [Docket nos. 102-103] on December 3, 2018. Plaintiff filed a rebuttal in support of her
motion on December 17, 2018. [Docket no. 106].
1
This Court reconciles Plaintiff’s identical motions and addresses them herein as one Motion to Enforce Settlement
by Way of Partial Summary Judgment and Citation of Contempt.
1
Plaintiff’s Motion asserts that the Defendants breached a 2015 Settlement Agreement
[Docket no. 94-1], which provided, among other things, that Plaintiff would be promoted to the
rank of Captain and given the position of Training Director of the Mississippi Department of Public
Safety 2. Plaintiff asks this Court for the following relief: (a) an Order mandating that she be placed
back into her Training Director position; (b) an Order granting her partial Summary Judgment as
to liability for violation of the Settlement; (c) an Order adjudicating the Defendants in civil
contempt for willful violation of said Order; and (d) a trial on damages for the willful violation of
this Court’s Order and Settlement Agreement in Civil Action No. 3:13-cv-68-CWR-FKB. [Docket
no. 94, ¶ 7]. Defendants claim they have fulfilled their obligations under the Settlement Agreement
and are not in breach or contempt. For the reasons stated herein, this Court agrees with the
Defendants and DENIES Plaintiff’s Motion for Contempt and Partial Summary Judgment.
I.
BACKGROUND
a. Prior Lawsuit
Plaintiff is employed by MDPS and carries the rank of Captain. Prior to becoming Captain,
Plaintiff filed a lawsuit (hereinafter referred to as “initial lawsuit”) against MDPS, alleging racial
discrimination in employment in violation of Title VII of the Civil Rights Act of 1964 (as
amended) 3 and Title 42 U.S.C. § 19834. In her initial lawsuit, Plaintiff alleged that she had been
denied a transfer and promotion as Training Director for MDPS because of her race, Caucasian.
2
The Settlement Agreement and Release were issued as a result of Gayle Miller McMullin vs. Mississippi
Department of Public Safety and Albert Santa Cruz, in his official capacity as Commissioner of the Mississippi
Department of Public Safety, Civil Action No. 3:13-cv-68-CWR-FKB.
3
Title 42 U.S.C. § 2000e-2(a) provides: “[i]t shall be an unlawful employment practice for an employer -(1) to fail
or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to
his compensation, terms, or conditions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin; ... .”
4
Title 42 U.S.C. § 1983 provides that every ‘person’ who, under color of law, deprives persons of federal rights is
liable for such deprivation.
2
In the initial lawsuit, The Honorable Judge Carlton Reeves granted summary judgement in
favor of the Defendants, MDPS and then Commissioner Albert Santa Cruz, finding that Plaintiff,
had failed to establish a prima facie case of race-based discrimination 5. Judge Reeves entered a
final judgment dismissing the case with prejudice on May 6, 2014. 6 The Court of Appeals for the
Fifth Circuit; however, found that the district court had erred in granting summary judgment and,
consequently, vacated the district court’s judgement and remanded the case for trial on April 28,
2015. 7
b. Settlement and Terms
Plaintiff, thereafter, entered into a Settlement and Release Agreement (hereinafter referred
to as the “Settlement Agreement”) with MDPS on September 18, 2015. [Docket no. 94-1]. As
part of the Settlement Agreement, MDPS agreed to: (1) promote Plaintiff, then carrying the rank
of Lieutenant to Captain; and (2) to appoint Plaintiff as Director of Training for the Mississippi
Highway Patrol. The Settlement Agreement did not indicate that Plaintiff was to remain in the
position of Director of Training for any prescribed length of time. In exchange for her promotion
and other covenants, Plaintiff agreed to dismiss her initial lawsuit and to release Defendants MDPS
and Albert Santa Cruz, in his official capacity, from all claims filed against them in her initial
lawsuit.
c. Plaintiff’s promotion to Captain and appointment to position of Training Director
MDPS promoted Plaintiff to the rank of Captain and appointed her as the Director of
Training on September 21, 2015 8. The Training Director is tasked with providing oversight for the
5
See Civil Case No. 3:13-cv-68-CWR-FKB, Docket no. 53.
6
See Civil Case No. 3:13-cv-68-CWR-FKB, Docket no. 55.
7
See Civil Case No. 3:13-cv-68-CWR-FKB, Docket no. 58.
8
See Special Order 2015-213, Docket no. 92-2.
3
continued in-service training of Mississippi State Troopers, to maintain their certification, as well
as directing Trooper Schools for newly hired Troopers. [See Docket no. 103, pp. 1-3].
To date, MDPS has taken no action to remove Plaintiff from the Training Director’s
position; Plaintiff retains the same rank, PIN number, and duties bestowed upon her on September
21, 2015.
d. Plaintiff’s leave of absence due to medical incapacity
Plaintiff actively occupied the position of Training Director from September 21, 2015, until
February 2018 9. In February 2018, after serving nearly two and a half years as Training Director,
Plaintiff left on medical leave, claiming injuries and other medical complications. To date, Plaintiff
has been on medical leave for more than one year. Nor has she provided any date for her expected
return. Plaintiff is unable to fulfill her duties as Training Director during her absence.
Meanwhile, a new class of Troopers, Class 63, began Trooper School on December 2,
2018. Trooper Class 63, like every new trooper class before it, required a Director of Training to
oversee it operation. MDPS was required to appoint a Training Director for the training division
to have the necessary leadership to continue with its mandate of training incoming troopers 10.
e. Defendants’ appointment of John W. Perkins as Director to fill the necessary gap
On August 3, 2018, Defendants appointed Captain John W. Perkins (hereinafter referred
to as “Captain Perkins”) as Training Director 11. Captain Perkins assumed the job duties left vacant
by Plaintiff’s medical absence, including oversight and training for the incoming cadets of Trooper
Class 63.
9
See September 13, 2018 deposition of McMullin, Gayle M., p. 22, Docket no. 92-3.
10
House Bill 1617, passed by the Mississippi Legislature and approved by Mississippi’s Governor, allocated funds
to hold a Trooper School for the 2018 fiscal year.
11
See Special Order 2018-215, Docket no. 96-2.
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II.
RULING
Plaintiff is still listed as the Director of Training for the Mississippi Highway Patrol. She
has suffered no rank demotion, nor pay reduction. Plaintiff simply has been unable to fulfill her
duties. Someone must take the helm.
Plaintiff has presented no evidence that the Defendants’ action is an effort to “run her off”.
Further, relative to Defendants’ obligation under the Settlement Agreement, the defense of
impossibility arises. A party relying on the defense of impossibility of performance must establish
(1) the unexpected occurrence of an intervening act, (2) that occurrence was of such a character
that its non-occurrence was a basic assumption of the agreement of the parties, and (3) that
occurrence made performance impracticable. Restatement (Second) of Contracts § 261.
Impossibility of performance of a contract is determined by whether an unanticipated circumstance
has made performance of the promise vitally different from what should reasonably have been
within the contemplation of both parties when they entered into the contract. In re Dissolution of
Marriage of Wood, 35 So. 3d 507 (Miss. 2010). In the case at bar, MPDS and Plaintiff both
reasonably contemplated that Plaintiff would be physically present and able to perform her duties
as Training Director. It is impractical for Plaintiff to assert that no one should be allowed to
shoulder Plaintiff’s unfulfilled duties during her extended leave of absence.
In addition, the issue of ripeness also applies here. A claim is not ripe for adjudication if
it rests upon “‘contingent future events that may not occur as anticipated, or indeed may not
occur at all.’” Texas v. United States, 523 U.S. 296, 300 (1998) (citing Thomas v. Union Carbide
Agricultural Products Co., 473 U.S. 568, 580–581 (1985)). Plaintiff presents an issue that is not
yet fit for this Court’s consideration. Defendants have taken no final action against Plaintiff and
when Plaintiff returns to work, if she does, Defendants will have to make a decision and Plaintiff
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will know whether she has a cause of action. Before this Court can address Plaintiff’s motion to
enforce the settlement agreement, the underlying facts must be allowed to develop. This Court
cannot reinstate Plaintiff as Director of Training, as requested by Plaintiff’s motion, simply
because Plaintiff has not been removed from her current role of Training Director. This Court is
therefore persuaded to DENY Plaintiff’s Motion to Enforce Settlement Agreement by Way of
Partial Summary Judgment and Citation of Contempt [Docket nos. 94 and 96].
SO ORDERED this the 28th day of Septemeber, 2019.
/s/HENRY T. WINGATE
UNITED STATES DISTRICT COURT JUDGE
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