King v. Newton County Board of Supervisors ( 2005 )

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS F I L E D
FOR THE FIFTH CIRCUIT July 26, 2005
________________
Charles R. Fulbruge III
Clerk
No. 04-60844
Summary Calendar
________________
ARLIES KING
Plaintiff - Appellant
v.
NEWTON COUNTY BOARD OF SUPERVISORS; HARRIS KENNETH, individually
and in his official capacity as president of Newton County Board
of Supervisors; MILTON SMITH, individually and in his official
capacity as supervisor of Newton County; L M BONDS, individually
and in his official capacity as supervisor of Newton County;
JIMMY JOHNSON, individually and in his official capacity as
supervisor of Newton County; JAMES SMITH, individually and in his
official capacity as supervisor of Newton County; GEORGE HAYES,
individually and in his official capacity as Chancery Clerk of
Newton County; ZARAH RICKETTS; JOHN DOES
Defendants - Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi, Jackson
No. 4:02-CV-499-LN
_________________________________________________________________
Before KING, Chief Judge, and DAVIS and STEWART, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
Plaintiff-Appellant Arlies King was forced to resign from
her position as Justice Court Clerk in Newton County,
Mississippi. She brought suit against her employer, the Newton
County Board of Supervisors, alleging several causes of action
under federal and state law. The district court granted summary
judgment in favor of Newton County. We AFFIRM.
I. BACKGROUND
A. Factual Background
Arlies King was appointed to the position of Justice Court
Clerk for Newton County in June 2000. When King assumed her new
position, she discovered checks that had been tendered to the
Clerk’s office for payment of traffic fines but had not been
deposited in the County’s bank account. King also determined
that a vast quantity of traffic citations had not been logged
into the Clerk’s computer system. King notified Defendant-
Appellee George Hayes, Newton County Chancery Clerk, of her
findings, and Hayes responded by calling the State Auditor. The
State Auditor initiated an investigation. The Newton County
Board of Supervisors (the “Board”) instructed King to commence
the process of entering the backlog of citations into the
computer system.
In November 2001, King contacted Defendant-Appellee Zarah
Ricketts in regard to an overpayment of garnishment funds made to
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Rickets, which was made by King’s predecessor. King requested
that Ricketts pay the money back. King alleges that Ricketts
then had a meeting with Justice Court Judge Jan Addy and made
disparaging remarks about King.
On January 7, 2002, the Board followed its traditional
practice of rehiring all county employees, including King, for
the new year. Around that same time, the Board became
increasingly unsatisfied with King’s lack of progress toward
rectifying the citation backlog. In addition, given the incident
involving Ricketts, the Board determined that King had been rude
and unfriendly to clients. The Board therefore determined that
King would be terminated. On January 11, 2002, the Board gave
King the opportunity to resign, which she accepted. On January
15, 2002, King attempted to withdraw her resignation, but the
Board refused to allow her to do so and on January 21, 2002,
voted to accept her resignation.
B. Procedural Background
On December 6, 2002, King filed suit against the members of
the Board, Hayes, and Ricketts (collectively, the “Defendants”),
asserting various claims under federal and state law. King
alleged that the Board: (1) breached her employment contract by
effectively terminating her when the Board forced her to resign;
(2) violated 42 U.S.C. § 1983 by depriving her of a property
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interest, i.e., her employment, without substantive and
procedural due process; (3) conspired to deprive her of a
property interest; (4) committed the tort of intentional
infliction of emotional distress; and (5) discharged her in
retaliation for whistleblowing.
On August 12, 2004, the district court granted summary
judgment in favor of the Defendants with respect to all five
counts. The court determined that King could not maintain a
breach of contract claim because she was an at-will employee.
Similarly, the court held that King could not maintain her § 1983
or conspiracy claims because, as an at-will employee, King did
not have a property interest in her continued employment. The
court also concluded that King could not prevail on her
intentional infliction of emotional distress claim because the
actions by the Defendants could not be considered extreme or
outrageous. Finally, the court determined that King could not
prevail on her whistleblowing claim because as an at-will
employee, she could be fired for any reason. The court also held
that this case did not fall into the exception that prohibits at-
will employees from being fired for reporting illegal activities
because there was no illegal activity in King’s case. On
September 13, 2004, King timely filed the instant appeal.
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II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo, applying the same legal standards as the district court.
Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir.
2001). Summary judgment is appropriate if there are no genuine
issues of material fact and the movant is entitled to judgment as
a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The initial burden to demonstrate the
absence of a genuine issue of material fact is on the movant.
Celotex, 477 U.S. at 324. Upon the movant’s meeting this initial
burden, the burden shifts to the non-movant to establish that
there is a genuine issue of material fact in dispute. Id.III. ANALYSIS
A. Breach of Contract
King argues that the district court erred in finding that
she did not have a valid and enforceable employment contract.
King contends that under Nuwer v. Mariner Post-Acute Network, 332
F.3d 310 (5th Cir. 2003), the Board’s act of rehiring her,
coupled with various employment documents, created an implied
employment contract. We disagree with King’s argument.
The Mississippi Supreme Court has declared that “absent an
employment contract expressly providing to the contrary, an
employee may be discharged at the employer’s will for . . . no
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reason at all . . . .” McArn v. Allied Bruce-Terminix Co., 626
So.2d 603, 606 (Miss. 1993)(quoting Shaw v. Burchfield, 481 So.2d
247, 253-54 (Miss. 1985)); see also HeartSouth, PLLC v. Boyd, 865
So.2d 1095, 1108 (Miss. 2003). Newton County’s employment manual
states:
It is the County’s policy that all employees who
do not have a written employment contract with the
County for a specific fixed term of employment are
employed at the County’s will and are subject to
termination at any time . . . . [T]he County’s
policies and practices with respect to any matter
are not to be considered as creating any
contractual obligation on the County’s part . . .
.
Thus, it is clear that the Board could not have changed King’s
at-will status by acting at a Board meeting, even if it had
explicitly stated that it wished to change the terms of King’s
employment. Further, the minutes of the January 7 meeting do
nothing to reflect that the Board intended to change King’s
status. The meeting minutes state: “Motion by Kenneth Harris,
seconded by Jimmy Johnson to re-hire all County Employees for the
2002 year. Motion carried unanimously.” In short, there is no
evidence whatsoever to indicate that the Board’s actions on
January 7 abrogated King’s at-will status. Because she was an
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at-will employee at the time of her termination,1 she is
precluded from contesting her termination on a breach-of-contract
theory. We thus affirm the district court’s judgment as to
King’s first count.
B. Deprivation of Property Interest in Violation of 42 U.S.C.
§ 1983King also argues that the Board violated her due process
rights in voting to accept her resignation. King points to the
fact that the Board voted on her resignation by telephone, as
opposed to in person, and asserts that such a vote, combined with
the knowledge of her rescinding her resignation, was not
sufficient to accept her resignation and only evinces a
premeditated plan to terminate her. She argues that this
violation of due process violates her Fourteenth Amendment rights
because she had a property interest in her continued employment.
She seeks to vindicate this violation through 42 U.S.C. § 1983.
In Johnson v. Southwest Mississippi Regional Medical Center,
878 F.2d 856, 858 (5th Cir. 1989), we held that a public employee
has a property interest in her continued employment if she can
prove a claim of entitlement to such a property interest by
reference to a: (1) statute; (2) written contract; or (3)
1
We assume, arguendo, that King’s resignation was equivalent to being
terminated.
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mutually explicit understanding enforceable as an implied
contract. King seems to argue that the third option--an implied
contract--established a property interest in her employment.
However, as discussed above, Newton County’s employment manual
precludes any claim of a mutual understanding that King was not
an at-will employee. Because King had no property interest in
her employment, her § 1983 claim fails.
C. Conspiracy to Deprive a Property Interest
With respect to her conspiracy claim against Ricketts, King
asserts that Ricketts did not file for summary judgment and that
Ricketts’s “Affidavit of Joinder” is not sufficient for disposing
of the claims against Ricketts on summary judgment. Further,
King asserts that Ricketts provided no proof refuting the
allegations that she engaged in a conspiracy to have King
terminated. As for the other conspiracy defendants, King asserts
that there were genuine issues of material fact that precluded
summary judgment.
We need not consider the issue of whether Ricketts was
properly joined because the overall conspiracy allegation cannot
be sustained. Under Mississippi law, a conspiracy is defined as
“a combination of persons for the purpose of accomplishing an
unlawful purpose or a lawful purpose unlawfully.” Delta Chem. &
Petroleum, Inc. v. Citizens Bank of Byhalia, Miss., 790 So.2d
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862, 877 (Miss. 2001) (quoting Levens v. Campbell, 733 So.2d 753,
761 (Miss. 1999)). “It is elementary that a conspiracy requires
an agreement between the co-conspirators.” Gallagher Bassett
Servs., Inc. v. Jeffcoat, 887 So.2d 777, 786 (Miss. 2004). King
points to no evidence raising a genuine issue as to the existence
of an agreement to commit an illegal act that would form the
basis of the alleged conspiracy. Further, as discussed above,
King had no property interest in her continued employment. The
defendants cannot be liable for conspiring to deprive King of
something that she never possessed and that never existed.
D. Intentional Infliction of Emotional Distress
With respect to her intentional infliction of emotional
distress claim, King argues that the Board’s threat to fire her
caused her distress that was so severe that it caused her to seek
medical attention. According to King, the degree of her distress
created a factual issue as to whether the Board’s actions were
sufficiently egregious. Under Mississippi law, to create
liability for intentional infliction of emotional distress, the
complained-of conduct “must have been 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.” Brown v. Inter-City Fed. Bank for
Sav., 738 So.2d 262, 265 (Miss. Ct. App. 1999) (internal
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quotation marks omitted). King has pointed to no evidence in the
record that raises a genuine issue as to whether the Defendants
ever engaged in such egregious behavior. Accordingly, the
district court properly dismissed King’s intentional infliction
of emotional distress claim.
E. Retaliatory Discharge/Whistleblowing
Finally, as to her whistleblowing claim, King contends that
the amount of money that was implicated in the investigation,
i.e., $1 million, and the fact the investigation was closed a
year after she was terminated, show that she was terminated for
whistleblowing. King acknowledges that terminated at-will
employees typically cannot sue their former employer regarding
their dismissal. However, she points to a “whistleblower”
exception to this principle. In McArn, 626 So.2d at 607, and
Willard v. Paracelsus Health Care Corp., 681 So.2d 539, 542
(Miss. 1996), the Mississippi Supreme Court established a narrow
public policy exception to the employment at will doctrine when
an employee is terminated for: (1) refusing to participate in an
illegal act; or (2) reporting her employer’s illegal acts to her
employer or third parties. King alleges that her termination
falls into the second exception, arguing that the mismanagement
of almost $1 million constitutes such an extreme dereliction of
duty as to be illegal. We disagree. King cites to no authority
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explaining how the mismanagement she discovered qualifies as a
criminal violation. Indeed, the State Auditor brought no
criminal charges, and King acknowledges as much. Without any
reason to believe that King reported illegal activity, we cannot
find that her termination qualifies under McArn’s whisteblower
exception. Thus, we affirm the district court’s judgment as to
her whistleblower claim.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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