Boland v. Mississippi Department of Public Safety

Filing 49

ORDER granting 43 Motion for Summary Judgment for the reasons set out in the Order. All claims against Fisher and Sims are dismissed with prejudice, and they are terminated as defendants in this case. Signed by Chief District Judge Daniel P. Jordan III on November 13, 2019. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MARY L.M. BOLAND

PLAINTIFF

V.

CIVIL ACTION NO. 3:17-CV-803-DPJ-RHW

MISSISSIPPI DEPARTMENT OF
PUBLIC SAFETY, ET AL.

DEFENDANTS

consolidated with
MARY L.M. BOLAND

PLAINTIFF
CIVIL ACTION NO. 3:18-CV-718-DPJ-RHW

V.

DEFENDANTS

MARSHALL FISHER, ET AL.
ORDER

In April 2017, Plaintiff Mary Boland was fired from her job as an attorney for the
Mississippi Department of Public Safety (“DPS”). Six months later, Boland filed two federal
lawsuits, naming DPS; its Commissioner, Marshall Fisher; and her former supervisor, Ray Sims,
as defendants. The claims at issue here allege that Defendants Fisher and Sims retaliated against
Boland for engaging in protected speech and maliciously interfered with her employment at
DPS. Fisher and Sims moved for summary judgment [43], and for the following reasons, their
motion is granted.
I.

Background
Boland began working at DPS in October 2015. Boland Dep [43-1] at 11–12, 38.

“Several weeks” before she lost her job, Bolen was asked to draft a request for proposal (“RFP”)
that solicited bidders for advertising contracts funded by grants from the National Highway
Traffic Safety Administration (“NHTSA”). Boland Aff. [46-3] at 1. During that project, Boland
learned that NHTSA believed Mississippi was issuing “ghost tickets” and that NHTSA might not

provide the grants as a result. Fisher Dep. [43-2] at 12–13; Boland Dep. [43-1] at 100–01.
Boland later confronted an NHTSA representative, while the representative was meeting with
Sims, about the allegation. She ask, “[W]hy did his fellow employee allege that Mississippi was
guilty of wrongdoing.” Boland Aff. [46-3] at 3; see also Boland Dep. [43-1] at 103. The parties
dispute whether Boland asked that question within the scope of her ordinary duties or as a citizen
regarding a matter of public concern.
There is no dispute that Boland’s confrontation with NHTSA became heated. Though
she denies raising her voice, she testified that the NHTSA representative “jumped up and went
crazy and was screaming at [her.]” Boland Dep. [43-1] at 103. As a result, Sims asked Boland
to leave. Id. Sims explained that after this incident he told Fisher what happened because he
was concerned that the NHTSA representative “was going to go back and talk to his director,
which he did. [Sims] ended up calling his director after talking to [Fisher] and . . . apologized to
him if his staff person was offended in any kind of way.” Sims Dep. [31-10] at 29–30.
Although Sims reported the incident to Fisher, Sims never recommended discipline.
Fisher Dep. [43-2] at 8–10. Nevertheless, Fisher discussed what happened with his “executive
counsel” and Jim Younger, a senior DPS attorney. Id. at 8; see also Younger Dep. [31-4] at 4.
Fisher concluded that Boland should be fired, but not just for the NHTSA confrontation. Fisher
Dep. [43-2] at 6, 8. Fisher says he also based the decision on Boland’s “unprofessional conduct”
at other times during her employment, including two incidents that generated complaints from
judges. Id. at 6–7, 19. Boland did not dispute the other problems in her summary-judgment
response.
Aggrieved by the termination, Boland filed two lawsuits: one alleging gender and race
discrimination under Title VII, Pl.’s Compl. (3:17-CV-803) [1] ¶ 3, and one alleging First

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Amendment retaliation and tortious interference with her employment, Pl.’s Compl. (3:18-CV718) [1] ¶¶ 3, 13. The Court previously denied Defendants’ motion for summary judgment on
Boland’s Title VII claims, see Mar. 12, 2019 Order (3:17-CV-803) [35], and then consolidated
the two cases, see Apr. 16, 2019 Order [40]. Defendants now seek summary judgment on the
First Amendment and tortious-interference claims.
II.

Standard
Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when

evidence reveals no genuine dispute regarding any material fact and the moving party is entitled
to judgment as a matter of law. The rule “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The
nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324 (citation omitted). In reviewing the evidence,
factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the court may “not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and
legalistic arguments have never constituted an adequate substitute for specific facts showing a

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genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.
2002); Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
III.

Analysis
A.

First Amendment Retaliation

Boland says Fisher fired her because she asked the NHTSA representative “why . . . his
fellow employee allege[d] that Mississippi was guilty of wrongdoing.” Boland Aff. [46-3] at 3.
Believing that her question constituted protected speech, Boland now asserts a First Amendment
retaliation claim under 42 U.S.C. § 1983. Section 1983 states that a person who, under color of
law, “subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party
injured[.]”
Although a person who “enters government service . . . by necessity must accept certain
limitations on his or her freedom,” public employees, such as Boland, “do not surrender all their
First Amendment rights by reason of their employment.” Garcetti v. Ceballos, 547 U.S. 410,
417–18 (2006). Rather, “the First Amendment protects a public employee’s [First Amendment]
right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Id. at
417. In balancing public employees’ First Amendment rights with their employers’ interest in
the “efficient provision of public services,” id. at 418, the Supreme Court has held that “when
public employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline,” id. at 421.
Accordingly, a four-part test applies when determining whether a public employee’s First
Amendment rights were violated under § 1983: (1) whether the employee “suffered an adverse

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employment action”; (2) whether the employee “spoke as a citizen on a matter of public
concern”; (3) whether the employee’s “interest in the speech outweighs the government’s interest
in the efficient provision of public services”; and (4) whether “the speech precipitated the
adverse employment action.” Wilson v. Tregre, 787 F.3d 322, 325 (5th Cir. 2015).
Boland suffered an adverse employment action, but her case stalls at the second
element—whether she spoke as a citizen on a matter of public concern. That “element triggers a
dicey test that has evolved since the Supreme Court decided Garcetti[.]” Walker v. Smith, No.
3:15-CV-911-DPJ-FKB, 2019 WL 1781422, at *3 (S.D. Miss. Apr. 23, 2019). Earlier this year,
the Fifth Circuit described those developments as follows:
Garcetti v. Ceballos settled that “when public employees make statements
pursuant to their official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” [547 U.S. at 421.] Garcetti left for
later the line between citizen and public-employee speech. As relevant here, after
Garcetti, we repeatedly held that employees speaking in discharge of job-imposed
obligations to report wrongdoing did so as public employees—not as citizens.
[Citation omitted].
Clarity came with Lane v. Franks’ holding that “[t]he critical question under
Garcetti is whether the speech at issue is itself ordinarily within the scope of an
employee’s duties, not whether it merely concerns those duties.” [573 U.S. 228,
240 (2014).] Under Lane, a general job-imposed obligation to detect and prevent
wrongdoing does not qualify as an employee’s “official duty” because “such
broad [obligations] fail to describe with sufficient detail the day-to-day duties of a
public employee’s job.” [Howell v. Town of Ball, 827 F.3d 515, 523–24 (5th Cir.
2016).]
Anderson v. Valdez, 913 F.3d 472, 476–77 (5th Cir. 2019), reh’g denied, 916 F.3d 404 (5th Cir.
2019).
When conducting this inquiry, there is no “comprehensive framework for defining the
scope of an employee’s duties in cases where there is room for serious debate.” Garcetti, 547
U.S. at 424. Rather, “the proper inquiry is a practical one.” Id. Accordingly, “job descriptions
are not dispositive, . . . the fact that speech concerns the subject matter of employment is not
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dispositive, . . . and . . . whether the employee expresses himself in the office is not
dispositive[.]” Gibson v. Kirkpatrick, 773 F.3d 661, 667 (5th Cir. 2014) (citing Garcetti, 547
U.S. at 420–21, 424–25).
Boland’s case is not one “where there is room for serious debate.” Id. To begin, there is
no dispute that Boland was working on an RFP for NHTSA-funded contracts when she learned
that the agency might withdraw funding over concerns that Mississippi was writing ghost tickets.
Boland Aff. [46-3] at 1–2. Preparing the RFP for those contracts fell squarely within the scope
of Boland’s ordinary job duties because she was responsible for handling “state leases and
contracts” and advocating for “public policy governing federal and state programs.” Job
Announcement [43-3] at 1.
Boland likewise acted within the scope of her ordinary job duties when she asked the
NHTSA representative “why . . . his fellow employee allege[d] that Mississippi was guilty of
wrongdoing.” Boland Aff. [46-3] at 3. Those duties included “[c]onfer[ring] with federal
agencies concerning federal regulations, procedures or issues affecting the state and/or the
agency.” Job Announcement [43-3] at 1 (emphasis added).
Boland disputes that point, claiming that Sims previously told her not to speak with
NHTSA. Pl.’s Mem. [47] at 5. But there is no dispute that Boland confronted the NHTSA
representative during a meeting Sims allowed her to attend. See Sims Dep. [31-10] at 28; Boland
Dep. [43-1] at 102. Indeed, Sims testified that he motioned Boland into the meeting when she
walked by, and there is no contrary evidence. Sims Dep. [31-10] at 28; see also Defs.’ Mem.
[44] at 4 (citing Boland Dep. [43-1] at 102 (testifying that she could not remember whether Sims
“motioned” her into the room)). Finally, and most significantly, Boland testified that she sought
and received Sims’s permission to ask NHTSA the question upon which she bases her claim.

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Boland Dep. [43-1] at 102–03. Communicating with federal agencies like NHTSA was part of
her ordinary duties.
Finally, the undisputed evidence proves that the specific question Boland asked the
NHTSA representative fell within the scope of her ordinary duties. Boland feared that NHTSA’s
accusations might jeopardize the NHTSA-funded contracts for which she was drafting the RFP;
as Boland put it, “there was no way that [she] could prepare the RFP” without information from
the NHTSA representatives. Boland Dep. [43-1] at 95. She also testified that she needed to talk
to the NHTSA representative because she “was just still trying so hard to get that RFP . . .
prepared[, a]nd there was no way [she] could get that contract prepared without understanding
what NHTSA wanted and what had been going on if, indeed, there’d been all these problems all
these years.” Id. at 102 (emphasis added). That is why she asked the NHTSA representative
“what exactly was it that they wanted in that RFP, . . . and why did he allege that Mississippi had
done something illegal.” Id. at 103.
In sum, Boland questioned the NHTSA representative within the scope of her ordinary
duties: writing the RFP for the NHTSA-funded contracts and conferring with NHTSA regarding
an issue that might affect the RFP. As a public employee, her question was not protected by the
First Amendment, and Defendants therefore did not violate her rights.1
B.

Tortious Interference with Employment

Under Mississippi law, “a claim for tortious interference with at-will contracts of
employment is viable[.]” Levens v. Campbell, 733 So. 2d 753, 760 (Miss. 1999). For a plaintiff

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Defendants also argue that they are entitled to qualified immunity as to the individual capacity
claims. The first inquiry in that analysis is whether the plaintiff has shown the defendant
violated her constitutional or statutory rights. Saucier v. Katz, 533 U.S. 194, 201 (2001). Boland
fails to make that showing.
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to prevail on a tortious-interference claim, four elements must be proven: (1) “the acts were
intentional and willful”; (2) “they were calculated to cause damages to the plaintiffs in their
lawful business”; (3) “they were done with the unlawful purpose of causing damage and loss,
without right or justifiable cause on the part of the defendant”; and (4) “actual loss occurred.”
Id. at 760–61 (citing Collins v. Collins, 625 So. 2d 786, 790 (Miss. 1993)). Additionally, “[i]t
must also be proven that the contract would have been performed but for the alleged
interference.” Id. at 761 (citing Par Indus., Inc. v. Target Container Co., 708 So. 2d 44, 48
(Miss. 1998)).
1.

Claim Against Defendant Fisher

Defendant Fisher says Boland’s claim against him fails because, under the third element,
he had a “right” to terminate her. Boland responds that Fisher acted in bad faith, and his actions
were therefore unlawful.
Under the third element of a tortious-interference claim, “[a] person in a position of
authority on behalf of another is privileged to interfere with the contract between his principal
and another.” Courtney v. Glenn, 783 So. 2d 162, 165 (Miss. Ct. App. 2000) (citing Shaw v.
Burchfield, 481 So. 2d 247, 255 (Miss. 1985)). This privilege applies only if the person is
“acting within the scope of that authority and without bad faith.” Id. Mississippi courts have
interpreted this privilege as “merely a specific example of having ‘right or justifiable cause’ to
interfere with the [contractual] relationship.” Morrison v. Miss. Enter. For Tech., Inc., 798 So.
2d 567, 575 (Miss. Ct. App. 2001). That is, “[a] person occupying a position of responsibility on
behalf of another is ‘privileged,’ which is another word for having a right.” Id. And if that
person acts within the scope of his or her authority, “then for the ‘without right’ portion of the
third prong to be met, the [person] must have acted in bad faith,” which means that the person

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acted “malicious[ly] or recklessly disregard[ed] the rights of the person injured.” Springer v.
Ausbern Constr. Co., Inc., 231 So. 3d 1065, 1069 (Miss. Ct. App. 2016).
To begin, Fisher acted within the scope of his duties as DPS Commissioner when he
terminated Boland’s employment. By statute, the DPS Commissioner is responsible for making
DPS’s staffing decisions. Miss. Code Ann. § 45-1-5. Moreover, public employees like Boland
serve “at the pleasure of the governing authorities and may be discharged by such governing
authorities at any time . . . without cause.” Id. § 21-3-5; see also 27-2 Miss. Code R. § 2.2
(stating that “non-state service” positions like Bolands are at-will positions).
As to bad faith, Boland argues that Fisher exhibited “willful indifference,” Pl.’s Resp.
[47] at 12, because he neither explained why he fired her nor investigated the incident himself,
id. at 9. To begin, Boland cites no authority suggesting that an agency head must personally
investigate and convey all employment decisions. Regardless, even assuming Fisher had
investigated and fully adopted Boland’s version of the events with NHTSA, he could have
terminated her employment because the speech was not protected under the First Amendment.
In other words, Fisher could not have “malicious[ly] or recklessly disregard[ed]” Boland’s rights
because even assuming the events occurred as she said, she had no First Amendment rights
regarding those statements. Springer, 231 So. 3d at 1069. Absent bad faith, Fisher was
privileged to interfere with the employment contract between Boland and DPS; he had a “right”
to do so. Boland cannot prevail on a tortious-interference claim against Fisher.2

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It is worth noting Fisher’s testimony that “[t]here were a series of conduct issues” supporting
his decision. Fisher Dep. [43-2] at 19. First, during “a committee meeting at the legislature”
Boland “engaged in a heated discussion with a sitting judge[.]” Id. at 21–22, 26. She told the
judge, “You stay out of this. This has nothing to do with you,” after he apparently interrupted a
presentation that she was giving. Id. at 25. Second, Boland gave a presentation to the
Mississippi Judicial College; afterwards, a Mississippi Supreme Court Justice attending the
presentation called DPS and asked that “she not come back again” because “the presentation was
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2.

Claim Against Defendant Sims

Sims makes a different argument, contending that he had “justifiable cause” to inform
Fisher of Boland’s conduct. Defs.’ Mem. [44] at 12. Boland responds that Sims was hostile
towards white women and therefore “the jury may infer” that he acted maliciously. Pl.’s Resp.
[47] at 12.
If justifiable cause existed for Sims’s actions, then, as a matter of law, he could not act
with malice. See Springer, 231 So. 3d at 1068. While the parties describe the NHTSA meeting
in slightly different ways, the stories largely overlap. Sims described Boland’s conduct during
the meeting with the NHTSA representative as follows:
On that day [a NTHSA representative] was coming over to discuss the
organization chart. We were—it was time to start preparing for our highway
safety plan; and also we had been understaffed, so we were trying to get some
positions in place. . . . During that meeting Ms. Boland came in through the door,
and I waved at her. And she ended up coming into the conference room with [the
representative] and I, and I introduced [the representative] to her. And the
conversation started pretty well, and then she started[,] . . . it turned into a heated
event at that moment where they started kind of just kind of getting a little heated.
[The representative] felt offended. They both raised up, and they were talking to
each other. He said, “You’re being confrontational,” and she said, [“]No, I’m
not.” And so it kind of went on, and I said . . . [Boland] . . ., “Please, just
stop.” . . . I asked her to let me finish the meeting with [the representative]. She
left out, but she came back again to try, I guess, to see what was going on with the
conversation. I don’t remember exactly how it happened, but [the representative]
just wasn’t having it.
Sims Dep. [31-10] at 28–29. For her part, Boland agrees that the conversation became heated
after she confronted the NHTSA representative. Whatever she said or how she said it, she
provoked a response. According to her, the NHTSA representative “jumped up and went crazy
and was screaming at [her.]” Boland Dep. [43-1] at 103. And there is no dispute in the record

a disaster.” Id. at 32. Fisher also testified that Boland was fired because she “mishandl[ed]
contracts” by not completing them “in a timely fashion[.]” Id. at 33. According to Fisher, this
“accumulation of . . . issue[s]” was the basis of Boland’s termination. Id. at 17. Boland never
disputed the other incidents upon which Fisher claims to have based his decision.
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that the NHTSA representative reported the confrontation to his director, prompting Sims to call
NHTSA to apologize for Boland’s behavior. Sims Dep [31-10] at 29–30.
Sims reported the incident to Fisher, who then consulted with others before deciding to
let Boland go. Significantly, there is no suggestion that Sims told Fisher anything that was
untrue about Boland’s heated confrontation with NHTSA. And Boland has not refuted Fisher’s
testimony that Sims never recommended any discipline. Fisher Dep. [43-2] at 8. According to
Fisher, he “discussed . . . some matters with Ray Sims, but nothing relative to any
recommendations.” Id.
Boland argues that the jury might “infer” from Sims’s alleged hostility toward white
women—something she did not plead in this case—that he acted without justifiable cause. But
even accepting the facts regarding the NHTSA confrontation as Boland describes them, no
reasonable jury could conclude that Sims lacked justifiable cause to report her. At bottom, Sims
simply told his supervisor that Boland had a heated exchange with NHTSA, something Boland
admits. Boland Dep. [43-1] at 103. And the undisputed record evidence—including Boland’s
own testimony—demonstrates that the crucial NHTSA relationship was already strained before
Boland provoked the NHTSA representative. Finally, Boland offers no evidence that Sims did
anything more—like recommending discipline. Because his actions were justified, Boland
cannot satisfy the third element of a tortious interference claim against Sims.
IV.

Conclusion
The Court has considered all arguments. Those not addressed would not have changed

the outcome. For the reasons stated, Defendants Fisher and Sims’s motion to dismiss [43] is

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granted. All claims against Fisher and Sims are dismissed with prejudice, and they are
terminated as defendants in this case.
SO ORDERED AND ADJUDGED this the 13th day of November, 2019.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE

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