Carr v. City of Yazoo City, Mississippi et al
Filing
72
ORDER granting 69 Motion in Limine re: Mississippi Whistleblower Protection Act claim, and dismissing claim. Signed by Honorable David C. Bramlette, III on 7/12/2012 (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 in
Limine To Exclude References To Claims Under the Mississippi
Whistleblower Protection Act (docket entry 69).
considered
the
motion
and
response,
the
Having carefully
memoranda
and
the
applicable law, and being fully advised in the premises, the Court
finds as follows:
The plaintiff was hired by the Yazoo City Fire Department as
a fireman in April of 1995.
retired.
In January of 2008, the Fire Chief
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. Carr filed a complaint contesting his termination in the
Circuit Court of Yazoo County, Mississippi, which was removed to
this Court by the defendants. Carr’s Complaint originally included
five counts.
The Court previously granted summary judgment in
favor of the defendants on Counts I, IV and V.
The remaining
counts are Count II, in which Carr alleges that he was terminated
in retaliation for exercising his First Amendment rights to speak
out on matters of public concern; and Count III, in which he claims
that he was terminated in violation of Mississippi’s Whistleblower
Protection Act (“MWPA”), Miss. Code Ann. § 25-9-171, et seq.
In their present motion, the defendants seek exclusion of the
plaintiff’s MWPA claim, on grounds that “[t]here are no disputed
facts
that
might
permit
Plaintiff
to
prevail
at
trial.
Consequently, evidence and arguments on this claim are immaterial
and likely to confuse the jury, and should be excluded pursuant to
Rules 401 and 403 of the Federal Rules of Evidence.”
Def. Mot. ¶
2.
The MWPA expressly limits its protection to persons who
“report[] an alleged improper governmental action to a state
investigative body.”
MISS. CODE ANN. § 25-9-173.
The statute
defines a “state investigative body” as “the Attorney General of
the State of Mississippi, the State Auditor, the Mississippi Ethics
Commission,
the
Joint
Legislative
Committee
on
Performance
Evaluation and Expenditure Review or any other standing committee
of the Legislature, or any district attorney of the State of
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Mississippi.”
exhaustive.
MISS.
CODE
ANN.
§
25-9-171(g).
The
list
is
There is no provision of the statute extending
protection to reports made to any other state agency or entity.
The plaintiff does not allege that he reported any improper
act
to
a
“state
investigative
body,”
or
that
any
Municipal
Defendant believed that he did so. Instead, Carr alleges that fire
department head Sidney Johnson “thought I turned him in to PERS” on
issues relating to Johnson’s status as an independent contractor.
Carr Depo. at 153-54; see also Carr Depo. at 130-32, 157, 159.
“PERS”
is
an
acronym
for
the
Mississippi
Public
Employees’
Retirement System, a government pension plan established under the
Mississippi Code.
It is not one of the government agencies listed
under the definition of a “state investigative body.”
CODE ANN. § 25-9-171(g).
See MISS.
The plaintiff does not alleged or offer
any proof that he reported any alleged misconduct to any other
agency, or that anyone believed that he did so.
The Mississippi Supreme Court has taken a strict approach in
construing the statutory requirement that the claimant report
information
to
a
“state
investigative
body.”
In
Harris
v.
Mississippi Valley State University, 873 So.2d 970 (Miss. 2004),
the
court
affirmed
dismissal
of
a
Whistleblower
claim
where
information was divulged to a university curriculum committee,
finding that the committee did not meet the statutory definition of
a state investigative body.
Id. at 987.
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Mississippi statutes are
to be interpreted in accordance with their plain language.
Lawson
v. Honeywell Int’l, Inc., 75 So.3d 1024, 1027 n.4 (Miss. 2011).
Here, the plain language of the MWPA limits its protections to
certain state agencies and to no others.
In his response to the defendants’ motion, the plaintiff
acknowledges that “[t]he MWPA limits its protection to persons who
report
an
alleged
investigative body.”
improper
governmental
Pl. Resp. ¶ 4.
action
to
a
state
He reiterates his allegation
that Johnson believed the plaintiff reported him to PERS, but Carr
does not contend that PERS is “a state investigative body.”
Instead, he submits a letter from the Executive Director of PERS to
the Mayor of Yazoo City concerning Sidney Johnson’s PERS status.
The letter is dated May 29, 2009, and was copied to, among others,
the State Auditor, demonstrating “PERS’ communication with the
Mississippi Auditor regarding Johnson’s case.”
Pl. Resp. ¶ 8.
The fact that there was some communication between PERS and
the State Auditor’s office does not support Carr’s Whistleblower
claim.
He does not allege that he reported Johnson to the State
Auditor, or even to PERS.
He merely alleges that Johnson thought
the plaintiff reported him to PERS and expressed this belief to the
plaintiff.
Moreover, the May 29, 2009, letter which was copied to
the State Auditor came some two months after Carr’s termination.
There is simply no evidence that the plaintiff reported anything to
the State Auditor’s office, or that anyone believed the plaintiff
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reported anything to the State Auditor’s office.
The plaintiff also objects that the facts alleged in his
Whistleblower claim are relevant to his First Amendment claim. The
defendants, in their reply memorandum, agree that their “motion
does not seek to prevent Plaintiff from offering factual testimony
about, for example, conversations in which alleged PERS violations
were mentioned.
Such statements may or may not prove relevant to
the First Amendment claim, but they are not the subject of the
present motion in limine.”
Def. Reply ¶ 2.
The Court finds that the defendants’ motion seeking to bar the
plaintiff or his counsel from referring to the MWPA claim itself,
and from making any argument that the Municipal Defendants are
liable to the plaintiff under the MWPA, is well taken.
viability
of
the
plaintiff’s
MWPA
claim
addressed and briefed by the parties.
has
been
The
thoroughly
The Court, construing all
factual allegations in the light most favorable to the plaintiff,
finds that the plaintiff’s MWPA claim is foreclosed as a matter of
law.
Any attempt to replead it would prove futile in that no set
of facts could be pleaded by the plaintiff to state a cause of
action in light of existing law.
Count II shall therefore be
dismissed.
Accordingly,
IT IS HEREBY ORDERED that the defendants’ Motion in Limine To
Exclude References To Claims Under the Mississippi Whistleblower
5
Protection Act (docket entry 69) is GRANTED, and the plaintiff and
his counsel are barred from referring to the MWPA claim itself, and
from making any argument that the Municipal Defendants are liable
to the plaintiff under the MWPA;
FURTHER ORDERED that Count III, in which the plaintiff claims
that he was terminated in violation of Mississippi’s Whistleblower
Protection Act, Miss. Code Ann. § 25-9-171, et seq., is dismissed
as a matter of law.
SO ORDERED, this the 12th day of July, 2012.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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