Carr v. City of Yazoo City, Mississippi et al
Filing
63
ORDER granting 41 Motion for Partial Summary Judgment; denying 43 Motion for Partial Summary Judgment Signed by Honorable David C. Bramlette, III on 5/1/2012 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ALLEN CARR
PLAINTIFF
VS.
CIVIL ACTION NO.: 5:10-cv-95(DCB)(RHW)
CITY OF YAZOO CITY, MISSISSIPPI,
MCARTHUR STRAUGHTER, INDIVIDUALLY AND
IN HIS OFFICIAL CAPACITY AS THE MAYOR OF
YAZOO CITY, MISSISSIPPI; THE FIRE CHIEF
OF YAZOO CITY, MISSISSIPPI, IN HIS
INDIVIDUAL CAPACITIES; SIDNEY JOHNSON, IN
HIS OFFICIAL AND INDIVIDUAL CAPACITIES;
AND BOARD OF ALDERMEN OF YAZOO CITY,
MISSISSIPPI; JACK VARNER; HATTIE WILLIAMS;
MICKEY O’REILLY AND CLIFTON JONES, ALL IN
THEIR INDIVIDUAL CAPACITIES
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the defendants’ Motion for
Partial Summary Judgment (docket entry 41), and on the plaintiff’s
Motion for Partial Summary Judgment (docket entry 43).
Having
carefully considered the motions and responses, the memoranda and
the applicable law, and being fully advised in the premises, the
Court finds as follows:
The Complaint in this case was filed by Allen Carr in the
Circuit Court of Yazoo County, Mississippi, and removed to this
Court by the defendants. The plaintiff was hired by the Yazoo City
Fire Department as a fireman in April of 1995.
In January of 2008,
the Fire Chief retired. The Yazoo City Board of Aldermen appointed
Roy
Wilson
as
interim
Fire
Chief,
and
hired
an
independent
contractor, Sidney Johnson, to act as a consultant and to oversee
the Fire Department.
In March of 2009, Carr was terminated by the
Yazoo City Board of Aldermen.
In his Complaint, Carr alleges that
he was terminated in retaliation for exercising his First Amendment
rights to speak out on matters of public concern (Count II).
He
also claims that he was terminated in violation of Mississippi’s
Whistleblower Statute, Miss. Code Ann. § 25-9-171, et seq. (Count
III).
Carr’s Complaint also includes a claim for defamation under
Mississippi law (Count IV), a claim under state law for the
negligent hiring, training and supervision of Johnson (Count V),
and a claim under state law that Johnson’s disciplinary actions
against Carr were illegal (Count I).
The defendants move for
summary judgment on Counts I, IV, and V.
The plaintiff moves for
summary judgment on Count I.
In Count I, the plaintiff maintains that pursuant to the Yazoo
City Ordinances, and the Rules and Regulations of the Yazoo City
Fire Department, Sidney Johnson did not have legal authority to
discipline
or
terminate
employees
of
the
Yazoo
City
Fire
Department, since he was not the Fire Chief but was instead an
independent contractor, and that Carr’s termination was therefore
void ab initio.
The defendants contend that the plaintiff cannot
maintain a private right of action based on City ordinances and
Department regulations, and that, in any event, Carr’s termination
did not violate the ordinances or regulations. Both sides move for
summary judgment on Count I, and neither side contends that there
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are any genuine issues of material fact; therefore, the Court finds
that this question can be decided as a matter of law.
The plaintiff submits the following pertinent ordinances from
the Code of Ordinances of the City of Yazoo City, Mississippi:
Sec. 16-40. Department established.
A fire
established.
department
for
the
city
is
hereby
Sec. 16-41. Fire chief - Duties and powers.
It shall be the duty of the chief of the fire
department to ... have full and complete control and
command of the fire department ....
Sec. 16-43. Fire chief to hire employees.
All members of the fire department shall be employed
by the chief of the fire department; provided, however,
the names of applicants for employment shall be first
submitted by the chief to the governing body and the
approval and authorization thereof first obtained.
The plaintiff also submits the following pertinent regulations
from the Rules and Regulations of the Yazoo City Fire Department:
Section I - Personnel
Officers
1.
The Chief will be responsible for the supervision of
all facets of the Fire Department, will prescribe all
training, testing, and duty assignments for Fire
Department personnel, and will have the authority to
employ and discharge employees subject only to the
approval of the Board of Mayor and Aldermen.
2.
In the absence of the Chief, the Assistant Chief
will perform the duties of the Chief. ...
The Mississippi Supreme Court has noted that “a mere violation
of a statute or regulation will not support a claim where no
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private cause of action exists.”
826, 829 (Miss. 2009).
Tunica County v. Gray, 13 So.3d
Carr does not point to any evidence that
the City ordinances and Department regulations in question were
intended to benefit employees of the Fire Department such as the
plaintiff. “Unless the legislative intent can be inferred from the
language of the statute, the statutory structure, or some other
source, the essential predicate for implication of a private remedy
simply does not exist.”
Doe v. State ex rel. Miss. Dep’t of
Corrections, 859 So.2d 350, 355 (Miss. 2003)(quoting Hodgson v.
Miss. Dep’t of Corrections, 963 F.Supp. 776, 791 (E.D. Wis. 1997)).
The defendants also point out that it was the Board of
Aldermen, not Sidney Johnson, who made the decision to terminate
the plaintiff, and that they had full authority to do so based on
Johnson’s
person.
recommendation,
or
the
recommendation
of
any
other
The City itself, not the courts, is “vested with final
authority for determining whether its procedural requisites have
been met, or if it pleases, waiving them.”
Thrash v. Mayor and
Comm’rs of the City of Jackson, 498 So.2d 801, 807 (Miss. 1986).
The Board’s compliance with municipal procedural rules is not
subject to review. Id. at 808. In addition, the plaintiff’s claim
is barred by the Mississippi Tort Claims Act (“MTCA”), which bars
liability “arising out of the exercise of discretion in ... the
hiring of personnel and, in general, the provision of adequate
governmental services.”
Miss. Code Ann. § 11-46-0(1)(g).
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See
Blackston v. Epps, __ So.3d __, 2011 WL 2536484 (Miss. App. 2011);
A.B. ex rel. C.D. v. Stone County School Dist., 14 So.3d 794, 799
(Miss. App. 2009).
The Court therefore finds that as to Count I, the defendants’
motion for partial summary judgment shall be granted and the
plaintiff’s motion for partial summary judgment shall be denied.
The
defendants
also
move
for
summary
judgment
on
the
plaintiff’s Count V, which alleges that “Yazoo City, its Mayor and
Board of Aldermen failed to properly supervise Mr. Johnson and
improperly accorded him complete autonomy and absolute control over
[the] Fire Department without proper exercise of the Board’s
approval process.”
The
MTCA
Complaint, ¶ 91.
bars
negligence
claims
against
municipalities
stemming from “the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of
a governmental entity or employee thereof.”
46-9(1)(d).
Miss. Code Ann. § 11-
Mississippi courts have consistently held that the
hiring and supervision of personnel is a “discretionary function”
for purposes of the MTCA exemption.
See, e.g., A.B. ex rel. C.D.
v. Stone County School Dist., 14 So.3d 794, 799 (Miss. App. 2009),
citing
T.M.
v.
Noblitt,
650
So.2d
1340,
1344
(Miss.
1995).
Therefore, the plaintiff’s Count V is barred by the MTCA as a
matter of law, and summary judgment shall be granted in favor of
the defendants.
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Finally, the defendants move for summary judgment on the
plaintiff’s Count IV, against defendant Johnson, which asserts a
claim for defamation under state law.
Under Mississippi law, a
defamation claim requires (1) a false and defamatory statement; (2)
an unprivileged publication to a third party; (3) fault amounting
to at least negligence on the publisher’s part; and (4) special
harm or actionability absent special harm.
Moon v. Condere Corp.,
690 So.2d 1191, 1195-96 (Miss. 1997).
Carr
asserts
that
“Johnson
placed
notes
in
Mr.
Carr’s
performance record alleging that Mr. Carr was spotted by fellow
officers in a car on a roadside having inappropriate contact with
a woman who was not his wife.”
Pl. Brief, p. 6.
Carr also asserts
that “Johnson placed documents in Mr. Carr’s personnel records
documenting that Mr. Carr had a mental disorder.”
Under
Mississippi
law,
“an
employer
Id.
enjoys
a
qualified
privilege when commenting on personnel matters to those who have a
legitimate and direct interest in the subject matter of the
communication.”
Bulloch v. City of Pascagoula, 574 So.2d 637, 642
(Miss. 1990).
The plaintiff has the burden of overcoming a
presumption that the statements were made in good faith.
Esmark
Apparel v. James, 10 F.3d 1156, 1162 (5th Cir. 1994).
In this case, defendant Johnson has met his initial burden of
showing the absence of any genuine issue of material fact with
respect to qualified privilege. The burden therefore shifts to the
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plaintiff to “designate ‘specific facts showing that there is a
genuine issue for trial.’” Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986).
In order to meet his burden in this instance, Carr
must present affirmative evidence demonstrating malice, bad faith,
or abuse of the privilege.
Eckman v. Cooper Tire & Rubber Co., 893
So.2d 1049, 1052 (Miss. 2005).
The plaintiff claims that “[t]he communication is unprivileged
because
Johnson
is
not
an
employee
of
Yazoo
City,
Carr’s
coworker[,] and has no legitimate interest or duty to make these
reports as an independent contractor.”
Pl. Brief, p. 7.
However,
the qualified privilege extends to all “communications in which the
person making it has an interest, or in reference to which he has
a duty ... if made to a person or persons having a corresponding
interest or duty,”
Eckman, 893 So.2d at 1052.
employers, employees, and independent contractors.
This includes
See Grice v.
FedEx Ground Package Sys., Inc., 925 So.2d 907, 912 (Miss. App.
2006).
It is undisputed that one of the duties delegated to
Johnson by Yazoo City was to make recommendations to the Board of
Aldermen regarding personnel matters within the Fire Department.
The Court therefore finds that Carr has not submitted any evidence
demonstrating malice, bad faith, or abuse of the privilege, and
that the defendants are entitled to summary judgment as a matter of
law on the plaintiff’s defamation claim.
Accordingly,
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IT IS HEREBY ORDERED that the defendants’ Motion for Partial
Summary Judgment (docket entry 41) is GRANTED, and Counts I, IV and
V of the plaintiff’s Complaint are dismissed with prejudice;
FURTHER
ORDERED
that
the
plaintiff’s
Motion
for
Partial
Summary Judgment (docket entry 43) is DENIED.
SO ORDERED, this the 1st day of May, 2012.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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