Leech v. Mississippi College

Filing 37

ORDER granting in part and denying in part Defendant Mississippi College's 30 Motion for Partial Dismissal of Plaintiff's First Amended Complaint. Signed by District Judge Kristi H. Johnson on 1/17/2023. (CWB)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
VICTORIA LOWERY LEECH
V.

PLAINTIFF
CIVIL ACTION NO. 3:21-CV-647-KHJ-FKB

MISSISSIPPI COLLEGE

DEFENDANT
ORDER

Before the Court is Defendant Mississippi College’s [30] Motion for Partial
Dismissal. The Court grants the motion in part and denies it in part for the
following reasons.
I.

Background
In 2005, Defendant Mississippi College (“MC”) hired Plaintiff Victoria Leech

“to build a new and improved Advocacy Program” for its law school. First Am.
Compl. [29] ¶ 6. After achieving this goal, MC awarded Leech a “five-year
presumptively renewable contract” in 2010 that granted her “the ABA’s coveted
Standard 405(c) status.” Id. ¶ 18. Standard 405(c) status is like tenure for nondoctrinal law school faculty, providing “protections of academic freedom” and job
security. Id. ¶ 19. Leech alleges that “once 405(c) status is incorporated into an
employment contract, the employment contract cannot be terminated except for
good cause or for the termination or material modification of the entire program.”

Id. ¶ 22. Over the next decade, Leech received “at least two renewals” of her fiveyear contract. Id. ¶ 23.

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Despite her success, in 2014 Leech contends she “began to experience
discrimination” after MC appointed Jonathan Will, a white male, as Associate Dean
of the law school. Id. ¶¶ 26, 28. Leech alleges Will “engag[ed] in discriminatory and
retaliatory behavior against [her]” for the rest of her time at the law school. Id. ¶ 28.
This alleged behavior included Will publicly reprimanding Leech during faculty
meetings, publicly “maligning” her Advocacy Program, “micromanag[ing] each of
[Leech’s] decisions relating to her curriculum,” removing her from leadership roles
at the law school, and “shouting and making derogatory comments about [Leech]
inside his office.” Id. ¶¶ 29–30, 33, 36, 43. More broadly, Leech alleges Will
generally treated male faculty members with respect but “[Leech] and other female
employees received harassment and discrimination instead.” See id. ¶¶ 29, 34, 44–
46.
After Will removed Leech from a committee assignment, Leech reported
Will’s conduct to Patricia Bennett, the law school’s Dean. Id. ¶ 38. Although Leech’s
committee assignment was reinstated, MC did not take any action against Will. Id.
Instead, Leech contends Will “continued his discrimination” against her and
“caused [her] to be removed” from her position as a legal writing and appellate
advocacy instructor, replacing her with “inexperienced, younger, and cheaper
professors.” Id. ¶¶ 39–41. Leech alleges she and other faculty members reported
Will’s behavior to MC on many other occasions, but MC did not take any action. Id.
¶¶ 47–51.

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In February 2020, the American Bar Association (“ABA”) visited the law
school for its required seven-year assessment. Id ¶ 52. The ABA questioned Leech
and other faculty members about their experience with 405(c) contracts. Id. ¶ 53.
Some faculty members expressed concerns about the contracts, as well as
discriminatory conduct and other employment issues. Id. ¶ 55. After the ABA
reported its concerns to the administration, Bennett “expressed her frustration with
[Leech] and other professors . . . who would dare to ‘air the school’s dirty laundry.’”

Id. ¶ 57.
In May 2020, Leech “grew concerned when she did not receive her annual
Letter of Contract from the school.” Id. ¶ 60. Leech contacted Dean Bennett, who
assured Leech several times that her contract would be issued soon. Id. ¶¶ 61–62.
But in June, the law school administration called a meeting of tenure and tenuretrack faculty to discuss 405(c) faculty. Id. ¶ 63. Leech and other non-tenure faculty
“were not informed of the meeting and were not invited to attend.” Id. ¶ 64. At the
meeting, Leech alleges Dean Bennett “wrongfully and falsely” told the tenured
faculty that the ABA “had expressed concerns about the 405(c) employment
contracts that would require an end to such contracts or a limitation of their use.”

Id. ¶ 67. Dean Bennett allegedly misled the tenured faculty to believe that “unless
some or all of the 405(c) faculty members were terminated,” she would have to
terminate the tenured faculty’s contracts or reduce their pay. Id. ¶ 71–72.
Based on these representations, Dean Bennett recommended that the faculty
vote to terminate Leech and one other 405(c) faculty member, both of whom are

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white. Id. ¶ 73. At a second meeting of tenured faculty, eight professors voted to
terminate Leech’s position and eight professors voted to keep it. 1 Id. ¶ 81. Faced
with a tie, Dean Bennett referred the matter to MC’s main campus for final
determination. Id. ¶ 82.
Leech continued to work over the summer without knowing whether MC
planned to renew her 405(c) contract. Id. ¶ 90. Finally, on August 4, Dean Bennett
contacted Leech and tried “to persuade [her] to forgo her position as a [405(c)]
faculty member and accept a staff position at the school.” Id. ¶¶ 91–92. Leech
refused. Id. Later that month Leech received a “one-year non-405(c) contract,”
stating that this would be her last contract as Director of Advocacy for the law
school. Id. ¶¶ 99–100. Leech did not sign the contract. Id. ¶ 104.
On August 25, 2020, the ABA released its official report about MC’s law
school. Id. ¶ 106. The ABA explained it received multiple reports of discrimination
from law school’s faculty; the law school took no concrete efforts to create a diverse
faculty; and several faculty members who qualified for 405(c) status had not
received it. Id.
In September 2020, Dean Bennett called a meeting to discuss the ABA’s
findings. Id. ¶ 107. Dean Bennett again “scolded the faculty for raising concerns
regarding discrimination,” claiming that such accusations “were jeopardizing the
law school’s accreditation.” Id. ¶¶ 111–12. She also announced the administration’s

The actual decision made at this meeting was whether Leech’s advocacy program
“had been materially modified or terminated.” [29] ¶ 80. If the faculty found that it had,
then Leech could be terminated. Id.
1

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plan to grant 405(c) status to a black faculty member. Id. ¶ 118. Leech alleges they
did this so the law school could “bring itself into compliance with the ABA’s 405(c)
concerns” and increase faculty diversity. Id. ¶ 120. The law school then offered
405(c) status to another black legal writing instructor in Spring 2020. Id. ¶ 122.
Leech alleges MC’s decision to cut her Advocacy Program and to not renew
her 405(c) status was a “plot” to “kill three birds with one stone.” MC could (1)
increase faculty diversity; (2) punish Leech for not lying to ABA investigators; and
(3) punish Leech for reporting Will’s discriminatory conduct. Id. ¶¶ 84, 89.
After the September meeting, Leech filed a formal complaint with Dean
Bennett about Will’s discriminatory conduct and the non-renewal of her 405(c)
status. Id. ¶ 125. Neither Dean Bennett nor MC responded. Id. ¶ 126. And, although
Leech’s new contract reflected she would be employed by the law school for the rest
of the school year, her name “no longer appeared on the 2021 Spring Semester
schedule.” Id. ¶ 130. Leech told Dean Bennett that “she believed she had been
constructively terminated due to the law school terminating her classes for the
Spring 2021 semester.” Id. ¶ 133. Dean Bennett did not deny that Leech had been
“ousted from the classroom,” but she insisted that Leech would remain as a faculty
advisor to the Moot Court Board. Id. Dissatisfied with this, Leech notified Dean
Bennett that “she had been constructively terminated” and resigned from her
position on November 17, 2020. Def.’s Mot. Dismiss [30-1] at 8.
Leech filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on November 23, 2020. Id. She received her

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Right to Sue letter on July 12, 2021. Def.’s Mot. Dismiss [30-2]. She then sued MC,
alleging twelve counts:
1. Breach of Contract/Wrongful Termination;
2. Gender Discrimination—including Disparate Impact and
Hostile Work Environment;
3. Race Discrimination—including Disparate Impact and
Hostile Work Environment;
4. Age Discrimination in Violation of Title VII and the Age
Discrimination in Employment Act (“ADEA”);
5. Retaliation in Violation of Title VII;
6. Retaliation in Violation of Mississippi Law;
7. Constructive Discharge;
8. Violation of the Equal Pay Act;
9. Breach of the Implied Duty of Good Faith and Fair
Dealing;
10. Intentional Infliction of Emotional Distress (“IIED”);
11. Negligent Supervision; and
12. Bad Faith/Reckless Disregard.
Pl.’s First Am. Compl. [29] ¶¶ 135–240.
MC now moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss
Count 2’s disparate impact claim based on gender, Count 3’s disparate impact and
hostile work environment claims based on race, and Count 4’s age claim for failure
to exhaust administrative remedies or, in the alternative, for failure to state a
claim. Def.’s Mem. Supp. Mot. Dismiss [31] at 5–12. It also moves to dismiss Count

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4’s Age Discrimination in Violation of Title VII claim, Count 6, Count 7, Count 8,
Count 10, Count 11, and Count 12 for failure to state a claim. [31] at 13–19.
II.

Exhaustion of Remedies
A. Standard
A plaintiff must timely exhaust her administrative remedies by filing a

charge of discrimination with the EEOC before filing suit under Title VII or the
ADEA. Melgar v. T.B. Butler Publ’g Co., Inc., 931 F.3d 375, 378 (5th Cir. 2019). In
Mississippi, such charges must be filed within 180 days of the alleged
discriminatory conduct. 42 U.S.C. § 2000e-5(e)(1) (Title VII); 29 U.S.C. § 626(d)(1)
(ADEA). 2 Based on the remedial purpose of Title VII and the ADEA, a court should
liberally construe EEOC charges to allow workers’ claims to be litigated. Pacheco v.

Mineta, 448 F.3d 783, 792 (5th Cir. 2006) (citation omitted); Jefferson v. Christus
St. Joseph Hosp., 374 F. App’x 485, 489–90 (5th Cir. 2010). A plaintiff need not
“check a certain box or recite a specific incantation to exhaust his or her
administrative remedies.” Pacheco, 448 F.3d at 792. Rather, the “crucial element of
a charge of discrimination is the factual statement contained therein.” Sanchez v.

Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970).
Notwithstanding the remedial nature of Title VII and the ADEA, “[c]ourts
should not condone lawsuits that exceed the scope of EEOC exhaustion, because
doing so would thwart the administrative process and peremptorily substitute

The 180-day limit applies because Mississippi is a “non-deferral state.” See Adams
v. Cal-Ark Intern., Inc., 159 F. Supp. 2d 402, 406–07 (E.D. Tex. 2001) (explaining the
difference between deferral and non-deferral states).
2

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litigation for conciliation.” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th
Cir. 2008). Consequently, a court should find that a claim is exhausted only if it
could have been “reasonably . . . expected to grow out of the charge of
discrimination.” Id.
B. Analysis
i.

Counts 2 and 3: Disparate Impact

In deciding whether Leech exhausted her administrative remedies on her
disparate impact claims, “a review of the prima facie case for disparate impact is
relevant.” 3 Pacheco, 448 F.3d at 791. A disparate impact claim is distinct from a
disparate treatment claim. Id. at 787. “Disparate-treatment discrimination
addresses employment actions that treat an employee worse than others based on
the employee’s race, color, religion, sex, or national origin.” Id. In such cases, “proof
and finding of discriminatory motive is required.” Id. “Disparate-impact
discrimination, on the other hand, addresses employment practices or policies that
are facially neutral in their treatment of . . . protected groups, but, in fact, have a
disproportionally adverse effect on such . . . group[s].” Id. In such cases, “proof or
finding of discriminatory motive is not required.” Id.
In sum, there are two elements to a disparate-impact claim: (1) a facially
neutral policy; (2) that has a disproportionately adverse effect on a protected class.

Id. at 791. Whether a plaintiff has exhausted her administrative remedies for a
Although a review of a prima facie case for disparate impact is helpful in
determining whether Leech exhausted her administrative remedies, Leech was not
required to allege a prima facie case in her EEOC charge to exhaust her administrative
remedies. Pacheco, 448 F.3d at 792.
3

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disparate impact claim, the identification of a neutral employment policy is
dispositive as it “is the cornerstone of any EEOC disparate-impact investigation.”

See id. at 792.
Leech did not exhaust her administrative remedies on her disparate-impact
claims because she did not identify a facially neutral policy in her EEOC charge.
Leech points to two “employment practices” that “disproportionately affected white,
female professors” to support her disparate impact claim. See [34] at 10–11. An
EEOC investigation into a disparate-impact claim could not have reasonably been
expected to grow out of either practice. Here’s why.
First, Leech points to MC’s “scheme to eliminate non-minority faculty
members with earned 405(c) status” and replace them with “minority faculty
members.” Id. at 10. This does not support a disparate-impact claim because it
facially alleges disparate treatment, not a neutral employment policy. See Pacheco,
448 F.3d at 791. Although MC’s alleged conduct “clearly supports claims for unfair
and intentional discrimination, [it] does not even suggest claims under a disparate
impact theory.” Id. Second, Leech points to MC’s practice of “chid[ing] or scold[ing]”
female professors for taking vacation days while allowing male faculty “to take even
unearned leave during the semester without comment.” [34] at 10–11. Again, this is
not a facially neutral employment policy. Even if it were, Leech did not mention this
policy in her charge of discrimination.
Because a disparate impact claim could not have been reasonably expected to
grow out of Leech’s EEOC charge of discrimination, she did not exhaust her

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administrative remedies on those claims. Normally, dismissal of a claim for failure
to exhaust administrative remedies is without prejudice. Stroy v. Gibson ex rel.

Dept. of Veteran Affs., 896 F.3d 693, 698 n.2 (5th Cir. 2018). When exhaustion is no
longer possible, though, dismissal may be with prejudice. Dawson Farms, LLC v.

Farm Serv. Agency, 504 F.3d 592, 607 (5th Cir. 2007). Because more than 180 days
have passed since Leech stopped working for MC, she is time-barred from asserting
a disparate-impact claim with the EEOC and exhaustion is no longer possible.
These claims are dismissed with prejudice.
ii.

Count 3: Race-Based Hostile Work Environment

A hostile work environment claim is not “duplicative” of discrete Title VII
claims; “rather, [it] represents a more or less distinct factual scenario.” Walton-

Lentz v. Innophos, Inc., 476 F. App’x 566, 570 (5th Cir. 2012). So a hostile work
environment claim cannot be “reasonably expected to grow out of” an EEOC charge
unless the charge at least mentions some facts underlying that claim. See id.
(quoting Pacheco, 448 F.3d at 789). A race-based hostile work environment claim
has five elements: “(1) the plaintiff belongs to a protected group; (2) the plaintiff was
subjected to unwelcome harassment; (3) the harassment complained of was based
on race; (4) the harassment complained of affected a term, condition, or privilege of
employment; and (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). For the harassment to “affect a term, condition, or
privilege of employment . . . it must be ‘sufficiently severe or pervasive to alter the

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conditions of the victim’s employment and create an abusive working environment.’”

Id. (quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993)).
Leech did not exhaust her administrative remedies for her race-based hostile
work environment claim. Although Leech’s EEOC charge alleges discrete acts of
racial discrimination and a hostile-work environment based on gender, it mentions
no facts underlying a hostile work environment claim based on race. Leech points to
several statements in her EEOC charge, arguing that they support a race-based
hostile-work-environment claim. See [34] at 7-8. But those statements focus on
gender rather than race. For example, Leech alleged that:
•

Associate Dean Jonathan Will has discriminated
against female professors in the form of
discriminatory and retaliatory action. While Dean
Will has acted cordially with male professors who
participated in discussions regarding the direction
of the law school, Professor Lowery and other
female faculty members have received retaliation
for speaking against a policy or decision of
administration, especially policies championed or
supported by Dean Will;

•

After Professor Lowery expressed professional
disagreement with a male department chair’s
opinion . . . Dean Will reprimanded her for
challenging the new director’s opinion;

•

Moreover, during this August 4, 2020 conversation,
Dean Bennett and Professor Lowery also discussed
the gender discrimination issues going on at the
school. Specifically, despite having previously
discussed the hostile work environment and
disparate treatment by Dean Will and other male
professors . . .

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[30-1] at 2, 6 (emphasis added). Leech’s EEOC charge contains no mention of
“severe or pervasive” harassment based on race. Instead, her allegations of racial
discrimination focus entirely on the discrete act of Mississippi College replacing her
405(c) position with an African American employee. See [30-1] at 8. This discrete
Title VII claim is distinct from a hostile work environment claim and is insufficient
for Leech to exhaust her administrative remedies on a race-based hostile work
environment claim.
Because a race-based hostile work environment claim based could not have
been reasonably expected to grow out of Leech’s EEOC charge of discrimination, she
did not exhaust her administrative remedies on that claim. And, because more than
180 days have passed since Leech stopped working at MC, she is time-barred from
asserting a race-based hostile work environment claim with the EEOC and
exhaustion is no longer possible. See Dawson Farms, 504 F.3d at 607. This claim is
dismissed with prejudice.
iii.

Count 4: Age Discrimination

An ADEA claim could not have been reasonably expected to grow out of
Leech’s EEOC charge of discrimination. Leech’s charge is nearly eight pages long.

See [30-1]. Throughout the charge, she raises many allegations of discrimination
based on gender, color, and race. See [30-1] at 2–3, 6, 8 (alleging that MC’s actions
“have resulted in adverse employment decisions against [Leech] based on gender,
color, and race” and “[Leech’s] position had already been terminated as a result of
discrimination based on race, color, and sex”). Leech does not include a single

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explicit allegation of age-based discrimination. See Ahuja v. Detica, Inc., 742 F.
Supp. 2d 96, 106–08 (D.D.C. 2010) (holding that plaintiff failed to exhaust her
administrative remedies for her ADEA claim after “omitt[ing] a single explicit
allegation of being discriminated against based on her age in the over eight pages,
single space description” of her intake questionnaire). And although checking a box
is not needed for Leech to exhaust her administrative remedies, Leech failed to
check the age discrimination box despite checking the race, color, sex, and
retaliation boxes. See [30-1] at 8. Taken together, Leech’s failure to check the age
discrimination box or include any explicit allegations of age discrimination in her
eight-page charge undermine her claim that an investigation of age discrimination
could reasonably be expected to grow out of her EEOC charge. See Ahuja, 742 F.
Supp. 2d at 107.
Leech argues she sufficiently raised age discrimination in her EEOC charge
by stating that “two years ago, Dean Will succeeded in removing Professor Lowery
from the legal writing program all together, hiring, instead, less experienced,
younger, and cheaper professors to teach [Leech’s courses].” [34] at 6. Her
argument fails for two reasons. First, that statement is the only reference to age in
Leech’s eight-page EEOC charge. And it is not “specific or elaborate enough to allow
the EEOC to infer the existence” of Leech’s purported ADEA claims. See Ahuja, 742
F. Supp. 2d at 107; see also Hodge v. United Airlines, 666 F. Supp. 14, 22 (D.D.C.
2009) (finding that a plaintiff’s sole statement that he “wrote a letter of
harassment” was not “specific or elaborate enough to allow the EEOC to infer the

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existence of a hostile work environment claim”). Second, the action Leech refers to
in the statement occurred two years before she filed her EEOC charge. In
Mississippi, a charge made under the ADEA must be filed with the EEOC “within
180 days after the alleged unlawful practice occurred.” 29 U.S.C. § 626(d)(1)(A); see

also Harding v. Huntington Ingalls Indus., No. 1:15-CV-274, 2015 WL 6812242, at
*2 (S.D. Miss. Nov. 5, 2015) (holding that “any claims based on employment actions
occurring more than 180 days before [the EEOC charge was filed] may not be
pursued under Title VII”). Accordingly, even if Leech’s statement had sufficiently
raised age discrimination in her EEOC charge, it was time-barred under 29 U.S.C. §
626.
Because an ADEA claim could not have been reasonably expected to grow out
of Leech’s EEOC charge of discrimination, Leech did not exhaust her administrative
remedies on that claim. And because more than 180 days have passed since Leech
stopped working at MC, she is time-barred from asserting an age discrimination
claim with the EEOC and exhaustion is no longer possible. See Dawson Farms, 504
F.3d at 607. This claim is dismissed with prejudice.
III.

Failure to State a Claim
A. Standard

“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Witherspoon v. Waybourn, No. 21-10407, 2022 WL 2188530, at *1 (5th Cir. June 17,
2022) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The facts must be

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viewed “in the light most favorable to the plaintiff,” but the Court need not “strain
to find inferences favorable to plaintiffs nor accept conclusory allegations,
unwarranted deductions, or legal conclusions.” Id. (internal quotations and citations
omitted). “While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Ashcroft, 556 U.S. at 679. Mere
“formulaic recitations of the elements” of a cause of action will not suffice. Id. at 681
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
B. Analysis
i.

Count 4: Title VII Age Discrimination

Title VII does not prohibit age discrimination. See 42 U.S.C. § 2000e-2
(prohibiting discrimination based on “an individual’s race, color, religion, sex, or
national origin”); Avina v. JP Morgan Chase Bank, N.A., 413 F. App’x 764, 766 n.4
(5th Cir. 2011). Accordingly, Leech’s claim for age discrimination in violation of
Title VII is dismissed.
ii.

Count 6: State-Law Retaliatory Discharge

Leech does not address the state law retaliatory discharge claim. “A plaintiff
abandons claims when [she] fails to address the claims or oppose a motion
challenging those claims.” Terry Black’s Barbecue, L.L.C. v. State Auto. Mut. Ins.

Co., 22 F.4th 450, 459 (5th Cir. 2022). Accordingly, the Court grants MC’s motion as
to this claim and dismisses it with prejudice.

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iii.

Count 7: Constructive Discharge

“Under federal law, the constructive discharge doctrine is an alternative way
of proving an adverse employment action in Title VII and other cases, but
constructive discharge is not itself a cause of action.” Wells v. City of Alexandria,
No. 03-30750, 2004 WL 909735, at *3 (5th Cir. Apr. 29, 2004). Leech does not
contest that constructive discharge is not an actionable claim. [34] at 22.
Accordingly, Leech’s independent claim for constructive discharge is dismissed.
iv.

Count 8: Equal Pay Act

“[T]o establish a claim under the Equal Pay Act, the plaintiff must show (1)
that her employer is subject to the Act; (2) that she performed work in a position
requiring equal skill, effort, and responsibility under similar working conditions;
and (3) that she was paid less than members of the opposite sex.” Jones v. Flagship

Int’l, 793 F.2d 714, 722–23 (5th Cir. 1986). “The Act necessarily requires a plaintiff
to compare her skill, effort, responsibility and salary with a person who is or was
similarly situated.” Id.
Leech fails to state a claim under the Equal Pay Act because she has not
specifically identified a similarly situated male employee who was paid more than
she was for the same work. Rather, Leech conclusively states that she was “paid a
lower wage than the male employees doing substantially equal work.” [29] ¶ 209. A
mere “formulaic recitation of the elements” of the Equal Pay Act is not enough,
however, for Leech’s claim to survive a motion to dismiss. Iqbal, 556 U.S. at 678; see

also Turner v. Copeland Grp. USA, Inc., No. 4:21-CV-640, 2022 WL 1508446, at *2–

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3, (S.D. Tex. May 10, 2022) (dismissing plaintiff’s Equal Pay Act claim after plaintiff
failed to identify a similarly situated employee); Boudreaux v. Stranco Field Servs.,

LLC, No. 18-5569, 2019 WL 2142045, at *6–7 (E.D. La. May 16, 2019) (similar);
McLin v. Chiles, No. 3:14-CV-636, 2015 WL 898280, at *4 (S.D. Miss. Mar. 3, 2015)
(similar); Trevino-Garcia v. Univ. of Tex. Health Sci. Ctr. – Sch. of Med., No. SA-9CA-572, 2009 WL 5195962, at *2–3 (W.D. Tex. Dec. 21, 2009) (similar).
Leech cites Muslow v. Board of Supervisors of Louisiana State University and

Agriculture and Mechanical College, No. 19-11793, 2020 WL 6483138 (E.D. La. Nov.
4, 2020), to argue that dismissal of her claim is premature and “further discovery
will reveal relevant details to the salaries of [Leech’s] comparators.” [34] at 20. But
in Muslow, the plaintiffs identified specific male co-workers that were in the same
paygrade and who were allegedly being paid higher salaries. See Muslow, 2020 WL
6483138, at *9. Contrarily, Leech does not point to a single specific similarly
situated male employee who was paid a higher salary. Accordingly, the Court
grants MC’s motion as to this claim
v.

Count 10: Intentional Infliction of Emotional Distress

An IIED claim under Mississippi law has five elements:
(1) the defendant acted willfully or wantonly towards the
plaintiff by committing certain described actions; (2) the
defendant’s acts are one which evoke outrage ore
revulsion in civilized society; (3) the acts were directed at,
or intended to cause harm to, the plaintiff; (4) the plaintiff
suffered severe emotional distress as a direct result of the
acts of the defendant; and (5) such resulting emotional
distress was foreseeable from the intentional acts of the
defendant.

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Pointer v. Rite Aid Headquarters Corp., 327 So. 3d 159, 171 (Miss. Ct. App. 2021).
The standard for an IIED claim is “very high.” Id. The alleged 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.” Bowden v. Young, 120 So. 3d 971, 980 (Miss. 2013). Liability
for IIED “does not extend to mere insults, indignities, threats, annoyances, petty
oppression, or other trivialities.” Hays v. LaForge, 333 So. 3d 595, 608–09 (Miss. Ct.
App. 2022) (quoting Brown v. Inter-City Fed. Bank for Sav., 738 So. 2d 262, 265
(Miss. Ct. App. 1999)).
Consequently, “damages for [IIED] are usually not recoverable in mere
employment disputes.” S. Farm Bureau Life Ins. Co. v. Thomas, 299 So. 3d 752, 759
(Miss. 2020) (citation omitted). “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 [an IIED claim].” Id. (quoting Prunty v.

Ark. Freightways, Inc., 16 F.3d 649, 654 (5th Cir. 1994)). “[M]ere employment
disputes not actionable through [IIED] claims include unfair criticism of job
performance, poor evaluations, demands that employees quit or face termination
based on fabricated reasons, harassment, and termination.” Hays, 222 So. 3d at
609. An IIED claim may arise in employment cases “involving a pattern of
deliberate, repeated harassment over a period of time.” Seibert v. Jackson Cnty.,
851 F.3d 430, 438 (5th Cir. 2017); Lee v. Golden Triangle Plan. & Dev. Dist. Inc.,
797 So. 2d 845, 851 (Miss. 2001).

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Notwithstanding the high bar for IIED claims in Mississippi employment
cases, Leech has pled sufficient facts to overcome a 12(b)(6) motion. She points to
six specific assertions in her Complaint to support her IIED claim:
•

Former Associate Dean Will’s constant public
reprimand and harassment toward [her];

•

Former Associate Dean Will’s public malignment of
[her] Advocacy Program, despite the program’s
national success;

•

Former Associate Dean Will subject[ing] [her] to
countless sanctions;

•

Former Associate Dean Will’s public[ly] attack[ing] her
professional opinions, while granting academic
freedom to male faculty members;

•

Former Associate Dean Will’s intentional act to
remove [her] from a committee assignment during an
open meeting in order to humiliate and belittle [her] in
front of her peers; and

•

Former Associate Dean Will shrieking and beating his
fists in front of female faculty, including [her].

[34] at 21 (citing [29] ¶¶ 29–30, 32–33, 37, 44). It is unlikely that any of these
allegations individually would amount to the “extreme and outrageous conduct”
required for an IIED claim under Mississippi law. But taken together and liberally
construed, these actions suggest a “pattern of deliberate, repeated harassment”
from when MC hired Will in 2014 until Leech left MC in 2020. See Harris v.

Maximus, Inc., No. 2:20-CV-38, 2020 WL 3980205, at *3 (S.D. Miss. July 14, 2020)
(liberally construing plaintiff’s allegations and finding that defendant’s alleged

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repeated harassing conduct was sufficient to state a claim for IIED—“at least in
cursory fashion”).
Leech’s allegations “may not be as detailed as they could be, and the facts,
once developed in discovery, may not ultimately support a claim [for IIED].” Id.
Leech, however, has “alleged enough to survive the present motion.” Id.
vi.

Count 11: Negligent Supervision Claim

Leech does not address the negligent supervision claim. As stated above, “[a]
plaintiff abandons claims when [she] fails to address the claims or oppose a motion
challenging those claims.” Terry Black’s Barbecue, L.L.C., 22 F.4th at 459.
Accordingly, the Court grants MC’s motion as to this claim and dismisses it with
prejudice.
vii.

Count 12: Bad Faith/Reckless Disregard

“Bad faith” and “reckless disregard” are not separate causes of action. Rather,
they are types of conduct used to support breach-of-the-implied-covenant-of-goodfaith-and-fair-dealing claims or punitive damage claims. See, e.g., Johnston v.

Palmer, 963 So. 2d 586, 594 (Miss. Ct. App. 2007) (bad faith); Miss. Code Ann. § 111-65(1)(a) (reckless disregard). Leech’s independent claims for bad faith and
reckless disregard therefore are dismissed. This dismissal does not affect Leech’s
claim for the breach of the implied covenant of good faith and fair dealing or her
claim for punitive damages.

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IV.

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

changed the outcome. For the reasons stated, the Court grants in part and denies in
part MC’s [30] Partial Motion to Dismiss.
The Court GRANTS MC’s motion as to Count 2’s and Count 3’s disparate
impact claims, Count 3’s hostile work environment claim, and Count 4’s ADEA
claim for failure to exhaust administrative remedies and DISMISSES those claims
with prejudice.
The Court GRANTS MC’s motion as to Count 4’s Age Discrimination in
Violation of Title VII claim, Count 6, Count 7, Count 8, Count 11, and Count 12 for
failure to state a claim and DISMISSES those claims with prejudice.
The Court DENIES MC’s motion as to Count 10.
The parties must promptly notify Magistrate Judge F. Keith Ball of this
decision and submit a proposed order lifting the stay within seven days from today.
SO ORDERED AND ADJUDGED this the 17th day of January, 2023.
s/ Kristi H. Johnson
UNITED STATES DISTRICT JUDGE

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