Huggins v. Queen City Properties, Inc. et al
Filing
90
Memorandum Opinion and Order denying defendants' 71 MOTION for Summary Judgment as to plaintiff's claim for wage discrimination, granting as to all other respects, as set out herein. Signed by District Judge Tom S. Lee on 7/10/19 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JUDAH HUGGINS
PLAINTIFF
VS.
CIVIL ACTION NO. 3:17CV799TSL-RHW
QUEEN CITY PROPERTIES, INC.,
INN SERVE CORP., STEVE
ANDERSON AND JEREMY CAMPBELL
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendants
Inn City Corp., Queen City Properties, Inc. (collectively “Queen
City”), Steve Anderson and Jeremy Campbell for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Plaintiff Judah Huggins has responded in opposition to the motion
and the court, having considered the memorandum of authorities,
together with attachments, submitted by the parties, concludes
that the motion should be granted in part and denied in part, as
set forth below.
I. Background Facts
Queen City owns and operates Hilton Garden Inn (HGI) in
Meridian, Mississippi.
Defendant Steve Anderson is the general
manager of HGI, and defendant Jeremy Campbell is HGI’s sales
director/assistant general manager.
Plaintiff Huggins, an
African-American female, was employed by Queen City at the HGI in
various capacities from 2014 until her termination in February
2017.
Following her termination, she filed the present action
against defendants alleging she was denied equal pay, subjected to
a hostile work environment and ultimately terminated on account of
her gender and/or race and/or in retaliation for having complained
of unequal pay, all in violation of the Equal Pay Act, 29 U.S.C.
§ 206, and/or Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e et seq. and/or 42 U.S.C. § 1981.
In addition to these
federal claims, she asserts state law claims for negligent and
intentional infliction of emotional distress, defamation and false
light invasion of privacy.
The following are the basic facts giving rise to this action,
construed in the light most favorable to plaintiff.
Anderson hired plaintiff as a desk clerk.
hour.
In May 2014,
Her pay was $10 an
By late 2015, she had received a number of raises and had
been promoted to the position of Guest Services Manager on Duty,
earning $14 an hour.
In the spring of 2016, she was again
promoted, to Administrative Assistant, with a pay raise to $15 an
hour.
At the time, Sam Davis was HGI’s assistant general manager
(AGM).
However, in December 2015, Davis was hired as the general
manager for the Meridian Hampton Inn, another Queen City hotel,
and began a process of preparing to transition to his new
position.
Plaintiff asserts that in anticipation of Davis’s
departure, Anderson directed Davis to begin training her to take
over his duties as AGM.
When Davis did ultimately transfer to the
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Hampton Inn in mid-2016, she assumed his duties as AGM becoming,
in effect, the de facto AGM.
Plaintiff asserts that not only did she take over Davis’s
duties as AGM, but she continued to perform her duties as
administrative assistant; and, in addition, at Anderson’s
direction, she assisted with Campbell’s sales duties as Anderson
was concerned that Campbell was letting a lot of things “fall
through the cracks,” as, for example, by failing to set up events
he had booked for the hotel and to return phone calls and respond
to emails.
Given the amount of work she was performing, plaintiff
presented Anderson with a letter on October 3, 2016 detailing her
many job duties at HGI and requesting a pay raise to $50,000 a
year.
According to plaintiff, Anderson responded that while he
could not approve the $50,000, she could have a raise; and he said
that although he could not provide her a raise at that time, a
raise was “in the system” and should become effective at the
beginning of the year.
Plaintiff heard nothing further from Anderson on the subject
until Tuesday, January 17, 2017, when he walked into her office
and gave her a letter promoting her, effective January 2, 2017, to
AGM/Administrative Assistant/Sales, with an accompanying raise to
$17 an hour.
Less than a week later, however, on Monday, January
23, 2017, he suspended her, ostensibly for having tampered
with/falsified the result of the employees’ votes for the 2016
3
Associate of the Year Award.
When confronted with the allegation
that she had manipulated the election, plaintiff denied the
charge; but despite her denial, Anderson immediately suspended her
pending an investigation.
Two weeks later, on February 6,
following the investigation, she was terminated.
Following her termination, plaintiff applied to the
Mississippi Employment Security Commission (MESC) for unemployment
benefits.
Defendants opposed her application and reported to the
the MESC that she was terminated for misconduct, that is, for
tampering with the vote for Associate of the Year.
While her
claim for benefits was initially denied, on appeal, she was
awarded benefits.
II. Summary Judgment Standard
Rule 56(a) provides that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a
matter of law.”
Fed. R. Civ. P. 56(a).
The movant bears the
burden of demonstrating that there are no genuine issues of
material fact.
Once the movant 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 granted.
Norwegian Bulk Transp. A/S v. Int’l Marine Terminals P’ship, 520
F.3d 409, 412 (5th Cir. 2008).
In response to a properly
4
supported summary judgment motion, the nonmovant must “come
forward with specific facts indicating a genuine issue for trial
to avoid summary judgment.”
Piazza's Seafood World, LLC v. Odom,
448 F.3d 744, 752 (5th Cir. 2006).
In considering a motion for summary judgment, the court views
all facts, and all reasonable inferences to be drawn from them, in
the light most favorable to the nonmovant.
DIRECTV, Inc. v.
Budden, 420 F.3d 521, 529 (5th Cir. 2005).
“If the record, viewed
in the light most favorable to non-movant, could not lead a
rational trier of fact to decide in non-movant’s favor, summary
judgment is appropriate.”
Kelley v. Price-Macemon, Inc., 992 F.2d
1408, 1413 (5th Cir. 1993).
But if “the factfinder could
reasonably find in [the nonmovant’s] favor, then summary judgment
is improper.”
Id.
“Even if the standards of Rule 56 are met, a
court has discretion to deny a motion for summary judgment if it
believes that ‘the better course would be to proceed to a full
trial.’” Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 538 (5th
Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986)).
III. Federal Claims:
Discrimination: Unequal Pay
Plaintiff has brought claims relating to her pay under the
Equal Pay Act, Title VII and § 1981, each of which prohibits wage
5
discrimination.1
Plaintiff contends she and Campbell’s positions
required equal skill and effort and that she had “way more
responsibilities” than Campbell and yet was paid less.
The Equal
Pay Act (EPA) prohibits a covered employer from discriminating
“between employees on the basis of sex ... for equal work on jobs
the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working
conditions.”
29 U.S.C. § 206(d)(1).
equal wages reward equal work.”
“In short, it demands that
Siler-Khodr v. Univ. of Texas
Health Sci. Ctr. San Antonio, 261 F.3d 542, 546 (5th Cir. 2001)
(citing Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.
Ct. 2223, 41 L. Ed. 2d 1 (1974)).
To establish a prima facie case
of wage discrimination under the EPA, “a plaintiff must show that
the employer pays different wages to men and women, the employees
perform ‘equal work on jobs the performance of which requires
equal skill, effort, and responsibility,’ and the employees
1
It is not clear whether plaintiff has sued all
defendants, or just Queen City, for wage discrimination. Relief
under Title VII is available only against the “employer”, which
would be Queen City; under § 1981, relief is also available
against individual supervisor or fellow employee. Foley v. Univ.
of Houston Sys., 355 F.3d 333 (5th Cir. 2003). Like Title VII,
the Equal Pay Act applies only to an “employer,” but the the Fifth
Circuit has found the definition of “employer” under the EPA is
“sufficiently broad to encompass an individual who ... effectively
dominates its administration or otherwise acts, or has the power
to act, on behalf of the corporation vis-a-vis its employees....”
Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194–95 (5th Cir.
1983).
6
perform their jobs ‘under similar working conditions.’”
Thibodeaux-Woody v. Houston Cmty. Coll., 593 F. App'x 280, 283
(5th Cir. 2014) (quoting 29 U.S.C. § 206(d)(1)).
Once the
plaintiff establishes a prima facie case to show unequal wages for
equal work, the burden shifts to the employer to prove by a
preponderance of the evidence that the wage differential is
justified under one of the [EPA's] four exceptions, namely,
“(1) a seniority system; (2) a merit system; (3) a system which
measures earnings by quantity or quality of production; or (4) any
other factor other than sex.”
Id.; 29 U.S.C. § 206(d)(1).
Whereas the EPA prohibits wage discrimination based on sex,
Title VII makes it unlawful for an employer to “discriminate
against any individual with respect to his compensation ...
because of such individual’s race ... [or] sex....”
§ 2000e–2(a).
And, Section 1981 prohibits wage discrimination on
the basis of race.
Cir. 2004).
42 U.S.C.
Pegram v. Honeywell, Inc., 361 F.3d 272 (5th
Title VII and § 1981 are parallel causes of action,
with each requiring proof of the same elements to establish
liability.
2003).
Foley v. Univ. of Houston Sys., 355 F.3d 333 (5th Cir.
To establish a prima facie case of wage discrimination
under Title VII and § 1981, a plaintiff must show that she was a
member of a protected class and that she was paid less than a
non-member for work requiring substantially the same
responsibility.
Taylor v. United Parcel Serv., Inc., 554 F.3d
7
510, 522 (5th Cir. 2008).
Pursuant to the burden-shifting
framework of McDonnell Douglas, “a plaintiff's prima facie case
creates an inference of ... discrimination,” which the employer
must rebut by offering a legitimate non-discriminatory reason for
the pay disparity.
Id.
If the employer provides such a reason,
the burden shifts back to the plaintiff to establish by a
preponderance of the evidence that the employer's reasons are a
mere pretext for discrimination.
Id.; Montgomery v. Clayton Homes
Inc., 65 F. App'x 508 (5th Cir. 2003) (citations omitted).2
To establish a prima facie case under any of these laws, the
plaintiff is not required to show that her job duties were
identical to those of higher paid male employees, but that they
were “nearly identical” or “substantially equal” in terms of the
“skill, effort and responsibility” required in the performance of
the compared jobs.
See Peters v. City of Shreveport, 818 F.2d
2
“Generally, ... a Title VII claim of wage discrimination
parallels that of an EPA violation.” Montgomery v. Clayton Homes
Inc., 65 F. App'x 508 (5th Cir. 2003). However, whle the EPA's
burden-shifting framework is similar to the McDonnell Douglas
burden-shifting framework that applies in Title VII (and § 1981)
cases, it is not identical. Niwayama v. Texas Tech Univ., 590 F.
App'x 351, 358–59 (5th Cir. 2014). Under the EPA, the defendant
bears the burden of persuasion to prove a defense under the EPA,
whereas under Title VII analysis, it has only a burden of
production to articulate a legitimate nondiscriminatory reason for
its actions under Title VII, with the ultimate burden of
persuasion remaining with the plaintiff. King v. Univ. Healthcare
Sys., L.C., 645 F.3d 713, 724 (5th Cir. 2011).
8
1148, 1153 (5th Cir. 1987); Reznick v. Associated Orthopedics &
Sports Med., P.A., 104 F. App'x 387, 390 (5th Cir. 2004) (EPA
plaintiff “must show that her job
requirements and performance were substantially equal, though not
necessarily identical, to those of a male employee.”) (citing 29
C.F.R. § 1620.13(e)); Taylor, 553 F.3d at 523.
The parties herein have provided descriptions of Campbell’s
and plaintiff’s respective job titles, skills, experience,
education and certifications.
duties each performed.
They have also listed various
Yet the evidence presented is not
altogether illuminating as to the actual skills, effort or
responsibilities of either’s position.
Consequently, the court is
unable at this time, on this record, to state as a matter of law
that plaintiff’s and Campbell’s positions did not involve
substantially similar skill, effort and responsibility.
Therefore, the court finds that summary judgment should not be
entered and that instead, the better course is to proceed to trial
so that the decision on the issue may be made on a more fullydeveloped record.
Race/Gender Discrimination: Termination
Plaintiff alleges she was terminated on account of her gender
in violation of Title VII, and her race, in violation of Title VII
and § 1981.
To establish her prima facie case, plaintiff must
show that she (1) is a member of a protected group; (2) was
9
qualified for her position; (3) suffered an adverse employment
action; and (4) was replaced by someone outside of her protected
class or was treated less favorably than similarly situated
employees outside the protected group.
McCoy v. City of
Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).
If she makes a
prima facie showing, the burden shifts to defendants to articulate
(not prove) a legitimate, non-discriminatory reason for the
challenged decision.
Id.
Once such a reason is offered,
plaintiff then has the burden to prove that the proffered reason
is not true but is a pretext for the real discriminatory purpose.
Id.
Defendants contend they are entitled to summary judgment on
plaintiff’s claims for discrimination relating to her termination
both because plaintiff cannot establish her prima facie case as
she cannot show that she was replaced by someone outside her
protected group or that any similarly situated employee outside
her protected group was treated more favorably, and because, even
if she could establish a prima facie case, she cannot establish
that the reason cited for her termination was pretext for
discrimination.
Defendants are correct on both points.
While plaintiff contends that she was replaced by both
Anderson and Campbell, evidence presented by defendants plainly
shows that after plaintiff was terminated, Campbell and Anderson
initially performed her job duties only until her position was
10
filled by Brianna Bebley, who, like plaintiff, is an AfricanAmerican female.
Plaintiff further argues that Campbell was
treated more favorably “as he (and Anderson) eliminated the role
of AGM held by Huggins.
Campbell an AGM was treated more
favorably and Huggins was suspended and terminated.”
unsure what plaintiff means by this.
The court is
However, the court is sure
that plaintiff has not shown that Campbell was treated more
favorably than her under nearly identical circumstances.
It
follows that defendants are entitled to summary judgment on these
claims.
The court further concludes that even assuming plaintiff’s
evidence could be considered sufficient to create a triable issue
on all the elements of her prima facie case, defendants are
nevertheless entitled to summary judgment as she has not
demonstrated pretext.
Defendants assert that plaintiff was
terminated based on allegations by two HGI employees, Ashley Moore
and Catherine Henry, that plaintiff made statements to them
insinuating, if not outright stating, that she rigged the vote for
Associate of the Year so that her good friend, Brianna Bebley
would win, and the two of them could/would split the $250 prize
money.
Plaintiff adamantly denies the charge and contends that
defendants’ purported investigation was a sham.
Defendants, she
asserts, were not interested in the truth but rather used the
allegation that she manipulated the results of the vote as an
11
excuse to terminate her.
Their real motivation, she claims, was
her race and/or gender and/or retaliation for her having
complained about her pay.
For purposes of evaluating defendants’ motion, the court
assumes that plaintiff did not, in fact, manipulate or falsify the
results of the employee vote for Associate of the Year.
is not the issue.
But that
Rather,
[t]he real issue is whether the employer reasonably
believed [her co-employees’] allegation and acted on it
in good faith, or to the contrary, the employer did not
actually believe the [co-employees’] allegation but
instead used it as a pretext for an otherwise
discriminatory dismissal. Thus, the inquiry is limited
to whether the employer believed the allegation in good
faith and whether the decision to discharge the employee
was based on that belief.
Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1165 (5th Cir.
1993).
Plaintiff points to a number of putative facts, primarily
relating to the credibility of her accusers and the alleged
absence of a good faith investigation, which she contends
demonstrate, circumstantially, that defendants did not actually
believe the accusations against her but rather seized on them as
an excuse to terminate her for discriminatory reasons.
She
contends, for example, that Ashley Moore, one of her accusers,
waited almost three weeks to report the alleged statements and yet
was never asked why she waited so long to complain; Anderson
ordered a re-vote before even speaking with Moore or conducting an
investigation; Anderson suspended her before an investigation was
12
done and before the re-vote was completed; Brittany Smith, another
co-worker who was present at the time of the alleged statements,
when interviewed, denied that the incident occurred; Anderson
terminated her employment before even discussing the allegations
with Brianna Bebley, plaintiff’s friend with whom she allegedly
said she planned to split the prize money; and no one ever asked
her (Huggins) why she had someone else (namely Mareeka Toole)
count the ballots instead of counting them herself; and no one
ever interviewed Toole about the voting process.
She asserts,
moreover, that neither Moore nor Smith ever made a written
complaint but rather only made a verbal accusation weeks after the
incident; that no notes were made of any of the interviews; and
the ballots from the original vote were not retained.
In short,
she claims her accusers were of doubtful credibility and
defendants’ investigation was “defective, insufficient and
flawed”, all of which suggests that the reason given for her
termination was contrived to cover up defendants’ true,
discriminatory motivation.
“[I]in the case of an allegedly flawed investigation, a
plaintiff must do more than show defendant's mistaken belief
regarding the investigation's conclusions to survive summary
judgment—plaintiff must show that defendant's belief was dishonest
and masked a discriminatory purpose.”
Hinga v. MIC Group LLC,
13-0414, 2014 WL 4273887 at *3 (S.D. Tex. Aug. 29, 2014) (citing
13
Swenson v. Schwan's Consumer Brands N. Am., Inc., 500 F. App'x
343, 346 (5th Cir. 2012), and Waggoner, 987 F.2d at 1166); see
also Cheshire v. Air Methods Corp., No. CV 3:15-0933, 2016 WL
3029965, at *9 (W.D. La. May 25, 2016) (citations omitted))
(“Faulty investigations do not necessarily demonstrate pretext.”).
Here, the record evidence belies the salient aspects of
plaintiff’s version of the “facts” of the investigation, and the
undisputed true facts established by the record do not support her
charge that defendants’ investigation was a sham, designed to mask
a discriminatory motive.
The true facts, as disclosed by the record evidence, are that
Ashley Moore promptly reported the incident to Campbell via text
message, but Campbell was out of town at the time and unable to
meet with her until his return.
Moreover, Moore and Henry, after
giving verbal statements, were asked to and did give written
statements regarding the incident.
Notably, too, Anderson has
testified that he had known Henry a long time and he considered
her, in particular, to be especially trustworthy and thus had
reason to believe that what she said was true.
In addition,
contrary to plaintiff’s characterization, Smith, when interviewed,
did not say the incident did not occur.
Rather, she merely said
that while she was in the room when the statements were allegedly
made, she did not hear them herself.
In light of these facts, the
court is not persuaded that plaintiff has come forward with
14
sufficient evidence of pretext to withstand summary judgment.
Therefore, the court will grant summary judgment for defendants on
her claim for discriminatory termination.
Retaliation
Plaintiff alleges she was terminated in retaliation for
having complained to Anderson about “the disparate pay issue”.
The EPA, Title VII and § 1981 prohibit retaliation against an
employee for complaining about prohibited discrimination.
See 29
U.S.C. § 215(a)(3) (making it unlawful “to discharge or in any
other manner discriminate against any employee because such
employee has filed any complaint” alleging a violation of the
EPA); 42 U.S.C. § 2000e–3(a) (making it unlawful to discriminate
against an employee because she has “opposed any practice made an
unlawful employment practice by this subchapter, or because he has
made a charge ... under this subchapter.”); CBOCS W., Inc. v.
Humphries, 553 U.S. 442, 448, 128 S. Ct. 1951, 1956, 170 L. Ed. 2d
864 (2008) (interpreting § 1981 to encompass retaliation claim).3
To establish a prima face case of retaliation, plaintiff must show
that: (1) she participated in protected activity; (2) her employer
took an adverse employment action against her; and (3) a causal
connection exists between the protected activity and the adverse
3
In the retaliation count of her complaint, plaintiff
alleges retaliation in violation of “both Title VII and Section
1981”; she does not refer to the EPA.
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employment action.
Banks v. E. Baton Rouge Parish Sch. Bd., 320
F.3d 570, 575 (5th Cir. 2003); Foley v. Univ. of Hous. Sys., 324
F.3d 310, 316 (5th Cir. 2003).
An informal, internal complaint to
an employer regarding a violation of EPA, Title VII or § 1981 may
constitute protected activity.
Hagan v. Echostar Satellite LLC,
529 F.3d 617, 626 (5th Cir. 2008); Tureaud v. Grambling State
Univ., 294 F. App'x 909, 914–15 (5th Cir. 2008).
However, the
employee’s complaint must concern “some violation of law.”
529 F.3d at 626.
Hagan,
That is, it “must at least alert an employer to
the employee's reasonable belief that unlawful discrimination is
at issue.”
Brown v. United Parcel Serv., Inc., 406 F. App'x 837,
840 (5th Cir. 2010) (Title VII).
Thus, the Fifth Circuit in Brown
found that the plaintiff’s complaint to his employer about “unfair
work distribution, unpaid overtime, and selective enforcement of a
lunch policy” was not protected activity because the employee “did
not complain about race, color, religion, sex, or national origin
discrimination.”
Id.
Likewise, in the case at bar, while it is
undisputed that plaintiff complained to Anderson about her pay,
she did not complain that she was being paid less than Campbell
because of her gender or race.
Plaintiff did testify in her
deposition that she asked Anderson if she was paid less than
Campbell because of her “status”.
However, she acknowledged that
Anderson would not have known what she meant by “status”, which
could have referred to any number of things other than her gender,
16
race, or any other protected characteristic.
Accordingly, based
on the undisputed facts, her claim for retaliation fails as a
matter law.
Hostile Work Environment:
In her complaint, plaintiff purports to assert a “race-based
hostile work environment claim” under Title VII and § 1981 based
on allegations that “[m]anagement of the Defendants” – presumably
Anderson and Campbell – “wanted to force [her] to leave the
employment of Defendants”, yet when she would not resign, they
“falsified a reason to terminate her employment” and then
afterward, Anderson “libel[ed], slander[ed] and defam[ed]” to the
Mississippi Employment Security Commission in an attempt to
prevent her from receiving unemployment benefits.
She alleges
that Queen City knew about this harassment and failed to take
effective action to stop it.
However, plaintiff has offered no
evidence that defendants manufactured or falsified the reason
cited for her termination.
In addition to the allegations of the complaint relating to
her hostile work environment claim, plaintiff testified by
deposition that she was subjected to a hostile work environment
because (1) Anderson once commented that then newly-elected
President Trump was “the best”; (2) Anderson was more supportive
of Campbell’s taking a vacation than he was of her taking a
vacation; (3) Anderson allegedly called her “the black sheep of
17
the company”; (4) Anderson and Campbell asked her questions about
her education and “seemed shocked” that she was a college
graduate; (5) Anderson, Campbell and Davis occasionally held “side
bar meetings” without her; (6) Campbell called an African-American
employee “stupid”; (7) a coworker told her that Campbell “never
liked” her; and (8) Campbell yelled at her and pointed his finger
at her on two occasions.
To establish a hostile working environment claim, plaintiff
must prove that “(1) she belongs to a protected group; (2) she was
subjected to unwelcome harassment; (3) the harassment complained
of was based on race (or sex); (4) the harassment complained of
affected a term, condition, or privilege of employment; (5) the
employer knew or should have known of the harassment in question
and failed to take prompt remedial action.”
Ramsey v. Henderson,
286 F.3d 264, 268 (5th Cir. 2002) (citations omitted).
“For
harassment on the basis of race to affect a term, condition, or
privilege of employment, ... it must be “sufficiently severe or
pervasive to alter the conditions of the victim's employment and
create an abusive working environment.’” Id. (quoting Harris v.
Forklift Systems, 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d
295 (1993)).
“In determining whether a hostile work environment
exists, courts consider the ‘totality of the circumstances,’
including the frequency of the conduct, its severity, whether it
is physically threatening or humiliating or ‘a mere offensive
18
utterance,’ and whether it interferes with the employee's work
performance.”
Gibson v. Verizon Servs. Org., Inc., 498 F. App'x
391, 394–95 (5th Cir. 2012) (citing Ramsey, 286 F.3d at 268).
Here, plaintiff has offered no evidence, but only her
subjective belief, that any of Anderson’s or Campbell’s alleged
conduct was “based on” her race (or sex).
sufficient to sustain her burden.
Her belief is not
See id. (quotation omitted)
(reiterating that “‘conclusory allegations, speculation, and
unsubstantiated assertions are inadequate to satisfy’” the
nonmovant's burden in a motion for summary judgment, and holding
that employee’s subjective belief that challenged conduct was
based on her race or sex was not sufficient to avoid summary
judgment on hostile work environment claim).
Accordingly, summary
judgment will be granted as to this claim.4
IV. State Law Claims
Intentional Infliction of Emotional Distress:
Plaintiff alleges that “the conduct of Defendants’ ...
management team was intentional and calculated to cause her
emotional distress.”
As she does not specify the conduct to which
4
The court would add that even if all of the alleged
conduct were supported by competent proof and by proof from which
it could be reasonably inferred that the alleged conduct was
motivated by her race (or sex), the conduct she has alleged,
considered in total, plainly does not rise to the level of
sufficiently “severe” or “pervasive” to constitute a hostile work
environment.
19
she refers, the court assumes she bases this claim on the same
alleged conduct she has cited in support of her hostile work
environment claim.
The evidence, viewed in the light most
favorable to plaintiff, does not support a finding of liability
for intentional infliction of emotional distress.
To prevail on a claim for intentional infliction of emotional
distress under Mississippi law, the challenged conduct must be “so
outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.”
Scott, 787 So. 2d 626, 630 (Miss. 2001).
Speed v.
“[L]iability does not
extend to mere insults, indignities, threats, annoyances, petty
oppression, or other trivialities.”
Jones v. Jackson State Univ.,
No. 3:07-CV-72-DPJ-JCS, 2008 WL 682411, at *5 (S.D. Miss. Mar. 7,
2008) (quoting Raiola v. Chevron U.S.A., Inc., 872 So. 2d 79, 85
(Miss. Ct. App. 2004)).
Regardless of a defendant’s intent,
unless the conduct at issue is extreme and outrageous, no cause of
action will lie.
Dandridge v. Chromcraft Corp., 914 F.Supp. 1396,
1405 (N.D. Miss. 1996) (quoting Burroughs v. FFP Operating
Partners, L.P., 28 F.3d 543, 546 (5th Cir. 1994)) (it is “not
enough that the defendant has acted with an intent which is
tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been
20
characterized by ‘malice,’ or a degree of aggravation which would
entitle the plaintiff to punitive damages for another tort.”).
“A claim for intentional infliction of emotional distress
will not ordinarily lie for mere employment disputes.”
Lee v.
Golden Triangle Planning & Dev. Dist., Inc., 797 So. 2d 845, 851
(Miss. 2001).
“Only in the most unusual cases does the conduct
move out of the realm of an ordinary employment dispute into the
classification of extreme and outrageous, as required for the tort
of intentional infliction of emotional distress.”
Prunty v.
Arkansas Freightways, Inc., 16 F.3d 649, 654–55 (5th Cir. 1994)
(quotation omitted).
Indeed, “‘[r]ecognition of a cause of action
for intentional infliction of emotional distress in a workplace
environment has usually been limited to cases involving a pattern
of deliberate, repeated harassment over a period of time.’”
Pegues v. Emerson Elec. Co., 913 F. Supp. 976, 982–83 (N.D. Miss.
1996) (quoting White v. Monsanto Co., 585 So. 2d 1205, 1210 (La.
1991)).
This is not such a case.
Accordingly, this claim will be
dismissed.
Defamation/False Light Invasion of Privacy
Plaintiff bases her claims for defamation and false light
invasion of privacy on allegations that Queen City falsely
reported to the MDES in connection with her claim for unemployment
benefits that she was terminated for “violating company policy by
colluding election (sic) of Employee of the Year”; that when she
21
applied for employment with Fairfield Inn following her
termination from HGI, Queen City reported to Fairfield Inn the
alleged false reason for her termination; and that Anderson told
another HGI employee that she was a “thief”.
Plaintiff offers
only speculation and hearsay – not competent proof - to support
the latter two allegations.
And as to the first, Queen City’s
alleged statement to the MDES is protected by privilege.
To
prevail on a claim of defamation, plaintiff must prove that
defendants made “(1) a false and defamatory statement, (2)
unprivileged publication to a third party, (3) negligence on the
part of the employees in publishing the statement, and (4) there
is either actionability of the statement irrespective of
harm or existence of special harm caused by publication.”
872 So. 2d at 84–85 (citation omitted).
special
Raiola,
To succeed on a claim for
invasion of privacy through publicity placing a person in a false
light requires proof that “[1] the false light in which [she] was
placed would be highly offensive to a reasonable person, and [2]
the actor had knowledge of or acted in reckless disregard as to
the falsity of the publicized matter and the false light in which
the other would be placed.”
Cook v. Mardi Gras-Casino Corp., 697
So. 2d 378 (Miss. 1997).
Under Mississippi law, an employer’s communications with the
MDES relating to an employee’s claim for unemployment benefits are
“absolutely privileged” and may not be made the basis for any
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defamation suit “unless the same be false in fact and maliciously
written, sent, delivered or made for the purpose of causing a
denial of benefits....”
Miss. Code Ann. § 71-5-131.
Plaintiff
does allege that Queen City’s statement to the MESC was both false
and maliciously made to prevent her receiving benefits, but as
discussed supra, she has no evidence to show that defendants acted
other than in good faith and without malice.
This claim will be
dismissed.
Negligent Infliction of Emotional Distress
Plaintiff purports to assert a cause of action for negligent
infliction of emotional distress based on Queen City’s having
stated to the MDES that she was terminated for rigging the
Associate of the Year vote.
This claim also fails as a matter of
law as Queen City’s statements were protected by privilege.5
V. Conclusion
Based on the foregoing, it is ordered that defendants’ motion
is denied as to plaintiff’s claim for wage discrimination, and in
all other respects, is granted.
SO ORDERED this 10th day of July, 2019.
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
5
The court reiterates that while the privilege can be
lost if the employer acts with malice, (a) there is no proof of
malice, see supra, and (b) negligence is not malice.
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