Idom v. Natchez-Adams School District et al
Filing
55
ORDER granting in part and denying in part 43 Motion for Summary Judgment. Signed by Honorable David C. Bramlette, III on July 14, 2015. (AA)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
CINDY IDOM
PLAINTIFF
VS.
CIVIL ACTION NO: 5:14-cv-38-DCB-MTP
NATCHEZ-ADAMS SCHOOL DISTRICT and FREDERICK
HILL and TANISHA W. SMITH, in their
individual and official capacities
DEFENDANTS
ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on Defendants’, Natchez-Adams
School District, Frederick Hill, and Tanisha W. Smith, Motion for
Summary Judgment [docket entry no. 43]. Having reviewed the motions
and
responses,
applicable
statutory
and
case
law,
and
being
otherwise fully informed in the premises, the Court finds as
follows:
I. Factual and Procedural Background
Plaintiff Cindy Idom, who is Caucasian, began working for
Defendant Natchez-Adams School District (the “School District”) in
1999 when she was hired as a third grade teacher. In the Fall of
2002, Idom was promoted to Principal at West Elementary School
(“West”). Defendant Frederick Hill is the Superintendent of the
School District, and Defendant Tanisha W. Smith is the Deputy
Superintendent. Both are African-American. In July of 2012, Idom
and the School District entered into a new contract for Idom to
1
continue as the principal at West for the 2012-2013 school year.
That school year was to be the first year that West participated in
the Mississippi Statewide Accountability testing. Prior to this
year, West and the other schools in the district had been organized
under a “‘grouped’ campus system in which all of the District’s
students in the same grade attended the same school, and West
housed all the Pre-Kindergarten and Kindergarten students in the
District.” Compl. ¶14, ECF No. 1. The summer before the 2012-2013
school year, “the District’s campus system was radically realigned
to a ‘dispersed’ elementary school,” and West now houses students
“ranging from Kindergarten to Fifth (5th) grade.” Compl. ¶14. Under
the new “dispersed” system, West “did not have adequate classroom
capacity to handle the student population increase,” and West
received additional portable buildings to serve as classrooms.
These buildings were delivered two months after the school year
started and had various problems that prevented their utilization.
Therefore,
West
had
to
implement
short
term
strategies
for
additional classroom space which caused disruptions. Idom claims
the School District did little to alleviate these problems while
she was principal.
In February of 2013, the School District renewed Idom’s
contract for another year. In May, Hill reassigned Idom to another
elementary school to serve as its principal. The transfer was
effective June 21, 2013. On June 28, 2013, Idom received an email
2
from the School District’s Human Resource Manager “to schedule an
‘individual meeting’ with . . . Hill and Smith.” Compl. ¶ 22. Idom,
Hill, and Smith met on July 5, 2013. What transpired at that
meeting is the subject of dispute. Idom alleges that she was given
the choice between early retirement and demotion to a teaching
position. Hill and Smith assert that Idom was merely informed that
her position could be subject to termination or transfer as a
result of West’s scores in the accountability testing. As of the
date of the meeting, the School District had not received the final
results
of
the
accountability
testing,
but
it
had
received
preliminary results that awarded West an F rating. When the results
were finalized, West still received an F, but it scored the second
highest in the district. On July 5, 2013, Idom signed a notice of
intent to retire.
Idom first pursued a charge of discrimination with the U.S.
Equal Employment Opportunity Commission (“EEOC”), but after review
of her claim, the EEOC determined it would not pursue any suit on
her behalf and authorized Idom to bring a civil suit on her own
behalf.
On May 14, 2014, Idom brought suit in federal court alleging
claims for: (1) racial discrimination in violation of Title VII;
(2) violations of her equal protection and due process rights
through Section 1983; (3) negligent hiring, retention, supervision,
and control; (4) intentional or negligent infliction of emotional
3
distress; (5) defamation; (6) breach of employment contract; (7)
tortious
interference
with
employment
contract
/
business
relations; and (8) breach of district policies and procedures
(breach of unwritten employment contract). The School District,
Hill, and Smith moved for summary judgment on April 13, 2015. A
pretrial conference in this case is set for July 16, 2015.
II. Analysis
A. The Legal Standards
1. Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“A fact is ‘material’ if its resolution in favor of one party might
affect the outcome of the lawsuit under governing law. An issue is
‘genuine’ if the evidence is sufficient for a reasonable jury to
return a verdict for the non-moving party.” Ginsberg 1985 Real
Estate P’ship v. Cadle Co., 39 F.3d 528, 531 (5th Cir. 1994)
(citations
omitted).
The
moving
party
bears
the
initial
responsibility of apprising the district court of the basis for its
motion and the parts of the record which indicate the absence of a
genuine issue of material fact. Celotex Corp. V. Catrett, 477 U.S.
317, 323 (1986).
“Once the moving party presents the district court with a
properly supported summary judgment motion, the burden shifts to
4
the
non-moving
party
to
show
that
summary
judgment
is
inappropriate.” Morris v. Covan World Wide Moving, Inc., 144 F.3d
377, 380 (5th Cir. 1998). “The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his
favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
But the nonmovant must meet his burden with more than metaphysical
doubt, conclusory allegations, unsubstantiated assertions, or a
mere scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994). A party asserting a fact is “genuinely
disputed must support the assertion by: (A) citing to particular
parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations,
stipulations . . . admissions, interrogatory answers, or other
materials . . . .” Fed. R. Civ. P. 56(c)(1)(A).
Summary judgment must be rendered when the nonmovant “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, 477 U.S. at 322.
2. Qualified Immunity
“Qualified immunity balances two important interests–the need
to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment,
distraction,
and
liability
when
they
perform
their
duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “A
5
qualified immunity defense alters the usual summary judgment burden
of proof. Once an official pleads the defense, . . . [t]he
plaintiff bears the burden of negating the qualified immunity, but
all inferences are drawn in his favor.” Brown v. Callahan, 623 F.3d
249, 253 (5th Cir. 2010). In assessing a claim of qualified
immunity, courts apply the two pronged analysis established in
Saucier v. Katz, 533 U.S. 194 (2001), but the court may address the
prongs in any order, Pearson, 555 U.S. at 225.
One prong asks “whether Plaintiff’s allegations establish a
constitutional violation.” Hope v. Pelzer, 536 U.S. 730 (2002). The
second prong asks “whether the right was clearly established.”
Saucier, 533 U.S. at 201. “[T]he contours of the right must be
sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Anderson v. Creighton, 483
U.S. 635, 640 (1987).
Hill and Smith have both asserted a defense of qualified
immunity against the Section 1983 claims. As a municipality, the
School District “do[es] not enjoy immunity from suit, either
absolute or qualified, under § 1983.” Burge v. Parish of St.
Tammany, 187 F.3d 452, 466-67 (5th Cir. 1999) (citing Leatherman v.
Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S.
163, 166 (1993)).
B. The Claims
The claims against Hill and Smith in their official capacities
6
are analyzed identically to the claims against the School District
“[b]ecause a suit against an official in his official capacity ‘is
no
different
from
a
suit
against’
a
governmental
entity.”
Shaidnagle v. Adams Cnty., Miss., — F. Supp. 3d —, —; 2015 WL
365820, at *3 (S.D. Miss. 2015) (quoting Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 71 (1989)); see also Burge, 187 F.3d at
466 (citing Monell v. New York City Dep’t of Soc. Servs., 436 U.S.
658, 691 n.55 (1978)) (“Official capacity suits generally represent
another way of pleading an action against an entity of which an
officer is an agent.”).
1. Racial Discrimination Under Title VII
The School District argues that Idom has not shown that she
suffered an adverse employment decision because she chose to
retire. Idom argues that she was constructively discharged.
To succeed on a claim of racial discrimination under Title
VII, a plaintiff must first exhaust her administrative remedies.
See McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).
Idom has done this by first pursuing her claim before the EEOC and
receiving a right to sue letter. After exhaustion of administrative
remedies,
a
plaintiff
may
circumstantial evidence. Id.
prove
her
case
through
direct
or
Where a plaintiff seeks to prove her
case through circumstantial evidence, as here, the court applies
the three-part McDonnell Douglas burden-shifting framework. Manning
v. Chevron Chem. Co., LLC, 332 F.3d 874, 881 (5th Cir. 2003). “[A]
7
plaintiff must first present a prima facie case of discrimination.”
Id.
A
prima
plaintiff
facie
show:
case
(1)
of
discrimination
membership
in
a
requires
protected
that
the
group;
(2)
qualification for the position at issue; (3) discharge or some
adverse employment action by the employer; and (4) replacement by
someone outside the protected group or less favorable treatment
than other similarly situated employees outside the protected
group. McCoy, 492 F.3d at 556.
If the plaintiff can present a prima facie case, the
burden shifts to the defendant to rebut the plaintiff’s
case by demonstrating a “legitimate, nondiscriminatory
justification for its actions.” If the defendant offers
such a justification, the burden shifts back to the
plaintiff, who can attempt to show that the defendant’s
proffered reason is simply a pretext for discrimination.
Manning, 332 F.3d at 881 (quoting Price v. Fed. Express Corp., 283
F.3d 715, 720 (5th Cir. 2002)).
The School District concedes “that members of the racial
majority (Caucasian) are eligible to substantiate claims based on
racial discrimination despite that they are not members of a racial
minority. . . .” Mem. Supp. 5, ECF No. 44; see also, Byers v.
Dallas Morning News, Inc., 209 F.3d 419, 426 (5th Cir. 2000)
(“[T]he fact that [the plaintiff] was not a racial minority in his
workplace does not prevent him from making a prima facie case of
reverse discrimination under Title VII.”).
The
School
District
also
concedes
that
Idom
“held
the
credentials to be a principal” but asserts that she “had proven
8
herself unqualified for the position based upon the ‘Failing’
status of her school.” Mem. Supp. 5. There is a distinction between
being qualified for a job and being good at it. By conceding her
credentials for the position, the School Board has admitted Idom’s
qualification.
After Idom resigned, she was replaced as principal by a
younger
African-American
at
the
elementary
school
she
was
transferred to, and she was replaced at West by another AfricanAmerican.
The School District’s chief argument is that because Idom
resigned she did not suffer an adverse employment action. Idom
argues that she satisfies this element through her allegation of
constructive discharge. “A constructive discharge occurs when the
employer makes working conditions so intolerable that a reasonable
employee
would
feel
compelled
to
resign.”
Hunt
v.
Rapides
Healthcare Sys., LLC, 277 F.3d 757, 771 (5th Cir. 2001). Courts
weigh the following factors to determine constructive discharge:
(1) demotion; (2) reduction in salary; (3) reduction in
job responsibility; (4) reassignment to menial or
degrading work; (5) reassignment to work under a younger
supervisor; (6) badgering harassment, or humiliation by
the employer calculated to encourage the employee’s
resignation; or (7) offers of early retirement or
continued employment on terms less favorable than the
employee’s former status.
Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 444 (5th Cir. 2011).
“This inquiry is an objective, ‘reasonable employee,’ test under
which [courts] ask ‘whether a reasonable person in the plaintiff’s
9
shoes would have felt compelled to resign.’” McCoy, 492 F.3d at 557
(quoting Haley, 391 F.3d at 650). Constructive discharge requires
“a ‘greater severity of pervasiveness or harassment than the
minimum required to prove a hostile work environment.’” Dediol, 655
F.3d at 444 (quoting Benningfield v. City of Houston, 157 F.3d 369,
378 (5th Cir. 1998)).
Here, Idom was not demoted. Her salary was not reduced. Her
job responsibilities were not reduced. She was not reassigned to
menial or degrading work. She was not reassigned to work under a
younger supervisor. Idom does argue that she faced harassment at
work. And, as discussed above, she was offered early retirement or
continued employment under less favorable terms. Further, Idom was
transferred from West to the principalship at another elementary
school, though she does not argue how this transfer would satisfy
any of the factors.
As for harassment, Idom states that defendants “created an
atmosphere at [West] that was hostile to Plaintiff’s employment and
was pervasively abusive, intimidating, and unreasonably interfered
with Plaintiff’s work.” Compl. ¶30. Further, Idom alleges that she
was reprimanded when African-American administrators were not under
similar circumstances, that she was subjected to unannounced visits
from
school
counterparts
district
were
officials
not,
that
whereas
Smith
her
accused
African-American
her
of
being
unprofessional, that Smith spoke down to her and “said [Idom]
10
should be an assistant principal because Smith thought [Idom] did
not know how to handle certain ‘building’ situations.” Compl. ¶ 18.
“Smith was always rude, intimidating, and constantly belittling”
towards Idom. Compl. ¶ 18. In her deposition, Idom
testified that Defendants, Hill and Smith, were
untrusting and unsupportive, and would intentionally
embarrass and humiliate her, gang up on her, make
unreasonable demands (despite Plaintiff always meeting
her goals and objectives), and always take the opposite
position than Plaintiff on any issue, all on account of
her race. Defendant, Hill was extremely sarcastic,
demeaning and belittling to Plaintiff (and other
Caucasians), and Defendant, Smith was hateful towards
Plaintiff and publicly questioned her leadership and
decision-making.
Mem. Opp. 3-4.
These facts are sufficient to make out a prima facie case
under Title VII. Therefore, the Court examines the reasons offered
in justification for Idom’s constructive discharge. The School
District gives as its reasons that “the school at which [Idom] had
just been principal received a ‘Failing’ rating and she had proven
herself unable to perform her job duties to the satisfaction of the
[School]
District
despite
being
given
ample
opportunity,
instruction, and time to improve her performance.” Mem. Supp. 7.
The Court finds that terminating an employee for poor performance,
especially after being given an opportunity to improve, is a
legitimate, non-discriminatory justification. Thus, the burden
shifts back to Idom to show this is a mere pretext.
To carry her burden, Idom “must produce substantial evidence
11
indicating that the proffered legitimate reason is a pretext for
discrimination” as to each reason offered by the defendants. Laxton
v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). “A plaintiff may
establish pretext either through evidence of disparate treatment or
by showing that the employer’s proffered explanation is false or
unworthy of credence. An explanation is false or unworthy of
credence if it is not the real reason for the adverse employment
action.” Id. (internal citations and quotation marks omitted). To
show disparate treatment, Idom argues that
[Two O]ther Caucasian Principals in the District[] were
treated in the same manner as Plaintiff by Defendants .
. ., by being terminated from their Principalship at
their respective school and only being offered a demotion
as their other option. Moreover, all similarly situated
Afircan American administrators in “failing” school were
not treated in the “same manner” as Plaintiff, . . . and
in some instances were actually promoted.
Mem. Opp. 25. As to falsity and unworthiness of credence, Idom
argues that at the time of her constructive discharge, the School
District had only received a “prediction of a failing grade,” not
a final grade, and West ultimately received the “second (2nd)
highest accountability grade in the [d]istrict,” though it was
still a failing grade. Mem. Opp. 24. Further, she argues that she
“was forcibly reassigned to [another school] and was thereby not
allowed an opportunity to improve West’s test scores the following
year.”1
Compl.
¶
24.
The
Court
1
finds
that
this
evidence
is
Idom also alleges in her complaint that this was in
violation of “District and State-mandated procedures [that] all
12
sufficient to create a jury question as to whether the proffered
reasons for Idom’s constructive discharge were a mere pretext
disguising the School District’s discriminatory motive. The Court
will, therefore, deny the motion as to this claim against the
School District.
The
analysis
“Individuals
are
for
not
Hill and
liable
Smith
under
is
Title
distinct
VII
in
but
either
brief.
their
individual or official capacities.” Ackel v. Nat’l Comms., Inc.,
339 F.3d 376, 381 n.1 (5th Cir. 2003) (citing Smith v. Amedisys
Inc., 298 F.3d 434, 448-49 (5th Cir. 2002)). The Court, therefore,
will grant summary judgment in favor of Hill and Smith on this
claim.
2. Due Process Rights
In her complaint, Idom alleges that she was entitled to and
did not receive “written notice of nonreemployment (and reasons for
nonreemployment), or the option for a fair and impartial hearing
regarding the same.” Compl. ¶ 37. Idom argues that her entitlement
to these procedural protections comes from the Education Employment
Procedures Law of 20012 (“the Act”) and the School District’s own
written policies and procedures. The School District, Hill, and
principals are given one (1) year to improve school scores if
there is low performance.” Compl. ¶ 24.
2
Miss. Code Ann. §§ 37-9-101, et seq. (2001). Idom refers
to this law as the Mississippi Education and Employment
Procedures Act, but the statute makes clear its name.
13
Smith argue that because Idom was never terminated but instead
resigned, she is not entitled to either notice or a hearing.
The Act provides that
[i]f a recommendation is made by the school district not
to offer an employee a renewal contract for a successive
year, written notice of the proposed nonreemployment
stating the reasons for the proposed nonreemployment
shall be given. . . . [I]f the employee is a principal,
the superintendent, without further board action, shall
give notice of nonreemployment on or before March 1.
Miss. Code Ann. § 37-9-105(a) (2012). The Act further provides that
[a]n employee who has received notice . . . upon written
request from the employee received by the district within
ten (10) days of receipt of the notice by the employee,
shall be entitled to: [w]ritten notice of the specific
reasons for nonreemployment, together with a summary of
the factual basis therefor . . .; [a]n opportunity for a
hearing at which to present matters relevant to the
reasons given for the proposed nonreemployment . . .;
[and r]eceive a fair and impartial hearing before the
board or hearing officer. . . .
Miss. Code Ann. § 37-9-109(a)-(c) (2012). Neither side has placed
the language of the district policies into the record for the Court
to analyze, but the Court assumes that they are modeled on the
statutory requirements.
The law in this Circuit, which neither plaintiff nor defendant
cites to, states that “[c]onstructive discharge in a procedural due
process case constitutes a § 1983 claim only if it amounts to
forced
discharge
to
avoid
affording
pretermination
hearing
procedures.” Fowler v. Carrollton Public Library, 799 F.2d 976, 981
(5th Cir. 1986). Idom has not alleged this reason for her alleged
constructive discharge, and the Court, finding this fatal to her
14
claim, will grant summary judgment in favor of the School District.
Turning to Hill and Smith, both have raised the defense of
qualified immunity. To overcome this defense, Idom must allege that
a
clearly
established
constitutional
right
was
violated.
See
Saucier, 533 U.S. at 201. The Court finds that Idom has not alleged
a constitutional violation because she has not alleged that the
reason for her constructive termination was to avoid a hearing but
only that it was because of her race. Therefore, Hill and Smith are
entitled to summary judgment based on their qualified immunity.
3. Equal Protection
“Section 1983 and title VII are ‘parallel causes of action.’”
Lauderdale v. Tex. Dep’t of Criminal Justice, Institutional Div.,
512 F.3d 157, 166 (5th Cir. 2007) (quoting Cervantez v. Bexar Cnty.
Civil
Serv.
“Accordingly,
Comm’n,
the
99
‘inquiry
F.3d
into
730,
734
(5th
intentional
Cir.
1996)).
discrimination
is
essentially the same for individual actions brought under sections
1981 and 1983, and Title VII.’” Id. (quoting Wallace v. Tex. Tech
Univ., 80 F.3d 1042, 1047 (5th Cir. 1996)).
As explained above, factual questions remain as to whether
Idom suffered a constructive discharge as a result of impermissible
discrimination by the School District. But this alone would not
render
the
School
District
liable
under
Section
1983.
“A
municipality or other local government may be liable under [Section
1983] if the governmental body itself ‘subjects a person to a
15
deprivation of rights or ‘causes’ a person ‘to be subjected’ to
such deprivation.” Connick v. Thompson, 131 S. Ct. 1350, 1359
(2011) (quoting Monell v. New York City Dep’t of Soc. Servs., 436
U.S. 658, 692 (1978)). “Plaintiffs who seek to impose liability
under § 1983 therefore must prove that an ‘action pursuant to
official municipal policy’ caused their injury.” Alexander v.
Brookhaven Sch. Dist., 428 F. App’x 303, 307 (5th Cir. 2011) (per
curiam) (quoting Connick, 131 S. Ct. at 1359). “Official municipal
policy includes the decisions of a government’s lawmakers, the acts
of its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.” Connick, 131
S. Ct. at 1359. Who is a policymaker is a question of state law.
McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 786 (1997) (citing
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). The
responsibilities and powers of a superintendent are set by statute.
See Miss. Code Ann. § 37-9-14 (2008); see also, Covington Cnty.
Sch. Dist. v. Magee, 29 So. 3d 1, 6 (Miss. 2010). The Court finds
that Hill and Smith are policymakers for the allegations based on
support of teaching and administrative staff made out by Idom,
detailed below. The statute makes clear that superintendents are
“administrat[ors] of the schools within [their] district” and have
wide responsibilities involving the allocation of district funds.
See § 37-9-14. The decisions made, as alleged, by Hill and Smith
involve the distribution of district resources among the various
16
schools.
Idom has alleged an unwritten policy of racial discrimination:
Hill and Smith engaged in a pattern and practice of
wrongful and discriminatory conduct that was known and
ratified by or agreed to by the [School] District.
Through this pattern and practice, Defendants, Hill and
Smith would use or abuse their power and authority
(granted by the [School] District) to intentionally favor
and set up African-American administrators/Principals
with an easy road for success and promotion, while
setting
up
Plaintiff
and
other
Caucasian
administrators/Principals for failure compelling their
demotion or constructive discharge.
Compl. ¶ 28. In her complaint, Idom makes more clear the various
ways
in
which
the
defendants
made
her
job
more
difficult,
difficulties “which the other schools in the District with AfricanAmerican Principals did not face.” Compl. ¶ 17.
(a) The increase in the student population required
Plaintiff to implement short-term plans to provide
teacher[s] adequate space. For example, large common
areas including the library, cafeteria, and space
formerly used for P.E. activities, had to be utilized as
extra classroom space. These large areas with multiple
classrooms
yielded
chaotic
results
and
multiple
behavioral issue with the children.
(b) The increased student volume meant West had no rooms
or gym for P.E. classes, no science lab, and the
cafeteria line was only a single-line for Five-hundred
fifty (550) elementary students.
(c) Plaintiff’s experienced Assistant Principal . . .
(African-American) was reassigned from West to [another
school] to replace its Caucasian Principal in October
2012, and [the Assistant Principal] position at West was
[filled] by an inexperienced teacher . . . (AfricanAmerican), who further handicapped West’s administrative
operations due to his inexperience.
(d) Plaintiff made multiple unsuccessful requests to
Defendants, Hill and the [School] District for facility
17
improvements to West’s campus and outside basketball
court to bring back P.E. activities.
(e) During realignment of the District prior to the 20122013 school year, several sub-par teacher were reassigned
and dumped on West, most of whom came from [a particular
school] (whose principal was . . . African-American, and
whose students had previously scored well in the
Mississippi Statewide Accountability testing). West (and
its Caucasian principal) was forced to enter into its
first testing year at a severe disadvantage, while [the
aforementioned
school]
(and
its
African-American
principal) received better faculty and thus greater
assurance their test results would stay good.
(f) Several good teachers at West were forced to be
transferred away or were forced to retire as a result of
being transferred against their will.
Compl. ¶ 17. Further, Idom had requested portable buildings to
accommodate the increased student population at West, but there
were problems with this solution. The buildings did not arrive
until two months into the school year and, because they needed
additional construction work, were unusable throughout the school
year, and the work itself done on the buildings was loud and
distracting. Compl. ¶16.
Having found that Idom has alleged a municipal policy of
discrimination, the Court will deny the motion for summary judgment
on this claim. The Court next examines the individual liability of
Hill and Smith.
Unlike the analysis under Title VII, Hill and Smith can be
found liable in a Section 1983 claim. See King v. Lawrence Cnty.
Bd. Of Educ., No. 2:12cv68, 2013 WL 319286, at *3 (S.D. Miss. Jan.
28, 2013) (“[W]hile Section 1981 does not provide an independent
18
cause of action against individuals acting under color of state
law, such individuals may be personally liable under Section 1983
for the violation of rights secured by Section 1981.”). But their
liability is subject to their qualified immunity. The Court is
unable to resolve the issue of whether Idom has overcome the
defense of qualified immunity on this claim, at this time. Having
conferred with the parties in a telephonic conference, the Court,
with consent of the parties, will hold this motion–whether Hill and
Smith are entitled to qualified immunity in Idom’s claim for
violation of her equal protection rights–in abeyance until such
time at trial that a ruling on it can be made.
4. Negligent Hiring and Supervision
The School District, Hill, and Smith argue that this claim is
subject to the Mississippi Tort Claims Act (“MTCA”) and that Idom
did not comply with the notice requirement. Idom does not discuss
this claim in her opposition to the motion. Because the “[f]ailure
to address a claim results in the abandonment thereof[,]” the Court
finds that Idom has conceded summary judgment on her claims for
negligent hiring and supervision. See City of Canton v. Nissan N.
Am., Inc., 870 F. Supp. 2d 430, 437 (S.D. Miss. 2012) (quoting
Sanders v. Sailormen, Inc., No. 3:10cv606, 2012 WL 663021, at *3
(S.D. Miss. Feb. 28, 2012)). Therefore, the motion will be granted
on this claim as to all three defendants.
5. Infliction of Emotional Distress
19
Idom has made claims for both intentional and negligent
infliction of emotional distress.
The defendants argue that these claims are subject to the MTCA
notice requirements and that Idom did not comply with them. Idom
only discusses her claim for intentional infliction of emotional
distress in her response. Therefore, the Court will grant the
motion for summary judgment on her claim for negligent infliction
of emotional distress. See id.
Idom argues that this claim is not subject to the MTCA because
it
is
based
on
the
malicious
conduct
of
the
defendants.
“Intentional infliction of emotional distress can be predicated on
behavior that is ‘malicious, intentional, willful, wanton, grossly
careless, indifferent or reckless.’ Thus to the extent intentional
infliction
of
emotional
distress
is
predicated
on
malicious
conduct, the claim would be outside the scope of the MTCA.” Weible
v. Univ. of So. Miss., 89 So. 3d 51, 64 (Miss. Ct. App. 2011)
(quoting Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch.,
Inc., 759 So. 2d 1203, 1211 (Miss. 2000)) (internal citations
omitted). Because Idom has alleged that the defendants acted with
malice in intentionally inflicting emotional distress on her, her
claim falls outside the scope of the MTCA and is not subject to the
notice requirements. “[I]t is clear that claims as to which malice
is not a necessary element of proof still fall outside the MTCA if
the plaintiff alleges that the defendant(s) acted with malice.”
20
Delaney v. Miss. Dep’t of Public Safety, No. 3:12cv229, 2013 WL
286365, at *6 (S.D. Miss. Jan. 24 2013). Therefore, the Court will
deny summary judgment as to this claim for Hill and Smith.
However, having found that Idom’s intentional infliction of
emotional distress claim is based on malicious conduct, the Court
finds that the School District is immune from liability. The MTCA
provides that “a governmental entity shall not be liable or be
considered to have waived immunity for any conduct of its employee
if the employee’s conduct constituted . . . malice. . . .” Miss.
Code Ann. § 11-46-5(2) (1992). Therefore, the Court will grant
summary judgment in favor of the School District.
6. Defamation
The defendants argue that Idom has not shown any publication
of any information that would defame her. Idom counters that she
suffered damage to her reputation when she was constructively
discharged based on the predictions of test scores because it
“caus[ed] parents to question the quality of their children’s
education.” Mem. Opp. 29. Further, she argues that a member of the
school
board
“heard
through
the
‘grapevine’
that
[Idom]
was
terminated as Principal because of a failing test score, but was
offered a transfer to a lower paying job.” Mem. Opp. 30. The
defendants seem to argue that whatever information the school board
member heard was not enough to rise to a level of defamation.
The required elements of a claim for defamation in Mississippi
21
are: “(1) a false and defamatory statement concerning plaintiff;
(2) unprivileged publication to third party; (3) fault amounting at
least
to
negligence
actionability
of
on
part
statement
of
publisher;
irrespective
of
(4)
and
special
either
harm
or
existence of special harm caused by publication.” Franklin v.
Thompson, 722 So. 2d 688, 692 (Miss. 1998). “The Mississippi
Supreme Court has held that ‘truth is a complete defense to an
action for libel.’ ‘In defamation actions, then, the threshold
question . . . is whether the published statements are false.’ The
plaintiff has the burden of proving the falsity of the statement.”
Neilson v. Dawson, 155 So. 3d 920, 923 (Miss. Ct. App. 2014)
(quoting Blake v. Gannett Co., 529 So. 2d 595, 602 (Miss. 1988))
(internal citations omitted).
In her complaint, Idom alleged that “Defendants have, either
directly or by ratification, verbally and/or in writing published
false
information
concerning
Plaintiff
to
former
co-workers,
parents, and members of the community, that Plaintiff was somehow
incompetent or any other similar terms, all for the malicious
purpose of damaging Plaintiff’s reputation and inflicting mental
anguish.” Compl. ¶ 46. But after discovery, Idom has pointed to no
statement made by any of the defendants. In his deposition, the
school board member states:
I did not know until this deposition, until I was
subpoenaed, that she was offered a classroom teacher’s
job. I was –- I had heard that she was offered a
transfer, but she could not stay on as a principal. And
22
the rest of the grapevine said that the superintendent
had made the statement, no one is going to be a principal
in my schools with a failing test score. And that was
what I hear. But to say that I knew that she was offered
a classroom teacher’s job or was threatened with
termination if she agreed to stay on, I was not.
Attachment Ex. E 17-18, ECF No. 50-4. He explicitly did not have
knowledge
of
any
allegedly
defamatory
statements
before
his
deposition. Further, to the extent that Idom argues that her
constructive discharge can be considered defamation, the law makes
clear that a statement is required.
But even assuming arguendo that this information qualifies as
a published statement and that it is false (though the Court cannot
determine what part of the school board member’s information might
be false), Idom “must clear two additional burdens[:} . . . First,
the words employed must have clearly been directed toward the
plaintiff.
Beyond
that,
the
defamation
must
be
clear
and
unmistakable from the words themselves and not be the product of
innuendo, speculation or conjecture.” Blake, 529 So. 2d at 603.
Nowhere does the school board member say he heard that Idom was
incompetent, so that the defamation from his information was not
clear but a result of conjecture.
Therefore,
the
Court
will
grant
the
motion
for
summary
judgment as to this claim.
7. Breach of Contract
Idom brings claims for breach of her employment contract and
for breach of the unwritten contract created by the employee
23
handbook. The School District did not address either breach of
contract claim in its original memorandum in support of its motion,
but stated succinctly in its reply that these claims “fail as
[Idom] has not evidenced a constructive discharge.” Reply 5, ECF
No. 51.
The elements of a breach of contract claim in Mississippi are:
“(1) the existence of a valid contract and (2) breach by the
defendant.” Smith v. Antler Insanity, LLC, 58 F. Supp. 3d 716, 723
(S.D. Miss. 2014) (citing Bus. Commc’ns, Inc. v. Banks, 90 So. 3d
1221, 1224-25 (Miss. 2012)). Idom had a valid contract with the
School District to serve as principal of an elementary school
within the district. Further, her constructive discharge, if true,
would breach that contract. The Court found above that whether Idom
was constructively discharged requires resolution by a factfinder.
The School District also seems to imply that these claims are
subject to the MTCA notice requirement, but this is incorrect.
“While a claim for breach of an implied contract provision is
covered by the MTCA and this would be subject to the MTCA’s presuit notice provision, this requirement does not apply to actions
for breach of the express terms of a contract.” Simpson v. Alcorn
State Univ., 27 F. Supp. 3d 711, 719-20 (N.D. Miss 2014) (citing
City of Jackson v. Estate of Stewart, 908 So. 2d 703, 711 (Miss.
2005)) (internal citation omitted). The Court finds that both
contract claims are based on express rather than implied contracts
24
and are therefore not subject to the MTCA. Therefore, the Court
will deny summary judgment on the breach of contract claims as to
the School District.
As for Hill and Smith, however, the Court finds that neither
individual is a party to the contract. In her briefing, Idom only
refers to her contract with the School District, not a contract
between her and Hill or Smith. See Mem. Opp. 31. Further, she
states that “Hill . . . had no authority to enter into a[n]
employment contract without Board approval.” Mem. Opp. 24. If the
superintendent could not contract under his own authority, then
certainly his deputy could not either. Therefore, the Court will
grant summary judgment in favor of Hill and Smith on this claim.
8. Tortious Interference
Based on the face of her complaint, Idom makes claims for both
tortious interference with contract and with business relations. In
their motion for summary judgment, the defendants argue that these
claims are subject to the MTCA and that Idom did not comply with
the notice requirements. Idom disagrees.
Two recent Mississippi Supreme Court cases reach opposite
conclusions on the same question: whether the MTCA applies to
claims for tortious interference. Compare Zumwalt v. Jones Cnty.
Bd. Of Supervisors, 19 So. 3d 672, 688 (Miss. 2009) (“With respect
to the claim of tortious interference with business relations
and/or contracts, the MTCA does not apply.”) with Whiting v. Univ
25
of So. Miss., 62 So. 3d 907, 916 (Miss. 2011) (finding that “the
MTCA covers both tortious breach of contract and breaches of
implied terms and warranties of a contract”). Mississippi’s federal
courts
have
recognized
the
contradictory
case
law
concerning
whether claims for tortious interference fall within the scope of
the MTCA. See Johnson v. City of Shelby, Miss., 743 F.3d 59, 63-64
(5th Cir. 2013), reversed on other grounds by 135 S. Ct. 346, 346
(2014); Dearman v. Stone Cnty. Sch. Dist., No. 1:13cv267, 2014 WL
3747600, at *2 (S.D. Miss. 2014); Pickett v. Panola Cnty., Miss.,
No. 3:13cv95, 2015 WL 416967, at *6 (N.D. Miss. Jan. 30, 2015). And
the Fifth Circuit has announced that it follows Whiting “because
[it] appl[ies] ‘the latest and most authoritative expression of
state law applicable to the facts of a case.” Johnson, 743 F.3d at
64 (quoting Santibanez v. Wier McMahon & Co., 105 F.3d 234, 239
(5th Cir. 1997)).
It does not appear from the case law post-Whiting whether a
court has addressed how Whiting applies to claims for tortious
interference with business relations. Zumwalt expressly referred to
both tortious interference with contract and business relations, 19
So. 3d at 688, but Whiting only referred to claims for tortious
interference with contract, 62 So. 3d at 916. One unpublished Fifth
Circuit case has affirmatively cited to Zumwalt since Johnson and
Whiting for the proposition that the MTCA does not apply to this
claim. See Pugh v. Byrd, 574 F. App’x 505, 510 (5th Cir. 2014) (per
26
curiam). But the Court is not bound by this decision.
The core elements3 of a claim for tortious interference with
either contract or business relations are identical:
(1) that the acts were intentional and willful; (2) that
they were calculated to cause damage to the plaintiffs in
their lawful business; (3) that they were done with the
unlawful purpose of causing damage and loss, without
right or justifiable cause on the part of the defendant
(which constitutes malice); and (4) that actual damage
and loss resulted.
Par Indus., Inc. v. Target Container Co., 708 So. 2d 44, 48 (Miss.
1998) (contract); MBF Corp. v. Century Bus. Commc’ns, Inc., 663 SO.
2d 595, 598 (Miss. 1995) (business relations). Further, the Court’s
logic in Whiting turns on the phrase “any wrongful or tortious act
or omission or breach of . . . contract.” 62 So. 3d at 916 (quoting
Miss. Code Ann. § 11-46-3(1) (1993)). The inclusion of the “any
wrongful or tortious act” language reveals that the Mississippi
Supreme Court’s reasoning is not limited to breach of contract
scenarios. Thus, the Court finds that Whiting’s holding extends to
claims for tortious interference with business relations, as well,
and, therefore, this claim is subject to the MTCA.
Lastly, Idom argues that a claim for malicious interference
with employment is not subject to the MTCA. Though the Court cannot
identify this claim as separate from the above claims based on the
3
In a tortious interference with contract claim, a
plaintiff must also prove the existence of a valid contract and
that the contract would have been performed but for the
interference. Par Indus., 708 So. 2d at 48.
27
face of the complaint, this argument fails regardless. Idom relies
on a Northern District case which holds exactly as she says. See
Papagolos v. Lafayette Cnty. Sch. Dist., 972 F. Supp. 2d 912, 933
(N.D. Miss. 2013) (“The law is clear that a malicious interference
with employment claim is not governed by the MTCA.”). However, one
of
the
Southern
District
cases
cited
by
Papagolos
for
this
proposition states that “[i]n Mississippi, a claim for malicious
interference with Plaintiff’s employment is the same as asserting
a tortious interference with contractual relations claims.” King v.
Bd. of Trustees of State Insts. of Higher Learning of Miss., No.
3:11cv403, 2012 WL 2870789, at *4 (S.D. Miss. July 11, 2012).
Therefore, the Court finds that this claim is not separate from
tortious interference with contract and is subject to the MTCA.
Thus, both claims for tortious interference are subject to the
MTCA and its notice requirements. Because Idom does not argue that
she has complied with this requirement, the Court will award
summary judgment in favor of the defendants on this claim.
III. Conclusion
First, the Court has found that her claim for Title VII racial
discrimination based on her constructive discharge survives but
only against the School District.
Second, the Court has found that her claim for violation of
her due process rights does not survive because she has not shown
a constitutional violation.
28
Third, the Court has found that her claim for violation of
equal
protection
because
she
rights
has
alleged
survives
her
against
the
District
discharge
constructive
School
occurred
pursuant to a policy, but her claims against Hill and Smith are,
with consent of the parties, held in abeyance pending resolution at
trial.
Fourth, Idom’s claims for negligent hiring and supervision do
not survive because Idom did not argue that they should.
Fifth,
the
Court
finds
that
Idom’s
claim
for
negligent
infliction of emotional distress does not survive because she did
not argue that it should.
The Court, however, reached divergent
results for her claim for intentional infliction of emotional
distress. It goes forward against Hill and Smith because it is not
subject to the requirements of the MTCA, but it fails as against
the School District because the School District is immune from
liability for this claim.
Sixth, the Court has found that Idom failed to show the
necessary elements of a claim for defamation.
Seventh,
the
Court
finds
that
her
claims for
breach
of
contract survive because they are not subject to the MTCA and
because defendants did not argue they should be dismissed in their
original memorandum in support of their motion; but the Court finds
that neither Hill nor Smith were parties to the contract and should
therefore be granted summary judgment.
29
Eighth and finally, the Court finds that Idom’s claims for
tortious interference with contract and for tortious interference
with business relations do not survive because they are subject to
the MTCA and she has not complied with the notice requirements.
IV. Order
IT IS HEREBY ORDERED THAT the Defendants’ Motion for Summary
Judgment is GRANTED IN PART and DENIED IN PART.
FURTHER ORDERED THAT the issue of whether Defendants Frederick
Hill and Tanisha W. Smith in their individual capacities are
entitled to qualified immunity in defense against the claim for
violation of Plaintiff’s equal protection rights is, with the
consent of the parties, held in abeyance pending resolution during
trial.
SO ORDERED this the 14th day of July 2015.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
30
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