Barnes v. Hinds Cnty. Sheriff Victor Mason

Decision Date10 December 2018
Docket NumberCIVIL ACTION NO. 3:16CV989TSL-RHW
PartiesCHERYL MATORY TOMECA BARNES PLAINTIFFS v. HINDS COUNTY SHERIFF VICTOR MASON, IN HIS INDIVIDUAL CAPACITY, AND HINDS COUNTY, MISSISSIPPI DEFENDANTS
CourtU.S. District Court — Southern District of Mississippi
MEMORANDUM OPINION AND ORDER

Defendants Hinds County Sheriff Victor Mason, in his individual capacity, and Hinds County, Mississippi, have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) as to pre-employment claims asserted by plaintiffs Cheryl Matory and Tomeca Barnes, and they have moved for summary judgment under Rule 56 as to the rest of plaintiffs' claims. Plaintiffs have responded in opposition to all three motions. The court, having considered the memoranda of authorities, together with attachments submitted by the parties, concludes that the motion for judgment on the pleadings as to claims based on pre-employment conduct should be granted and the motions for summary judgment as to both plaintiffs' remaining claims should be granted in part and denied in part, as set forth herein.

Facts

Beginning around 2014, Cheryl Matory, then a corporal and crime scene investigator with the City of Jackson Police Department (JPD), began working on Victor Mason's election campaign for sheriff of Hinds County. Matory had known Mason since high school and agreed to help with his campaign because she thought he would make a good sheriff. At some point during the campaign, Mason offered to hire Matory as his undersheriff in the event he was elected; she agreed. The two often discussed additional potential employees, and at Mason's request, Matory began working to recruit certain individuals to work for Mason if he was elected. Mason was especially interested in hiring Tomeca Barnes and told Matory to ask Barnes, who was also a corporal with JPD, to help with his election campaign. Barnes agreed. Mason subsequently promised he would hire her as head of the Sheriff's Department's Internal Affairs Division (IAD) if he was elected.

Mason won the election for Hinds County sheriff in November 2015 and began finalizing his staff selections. Upon taking office on December 31, 2015, Mason, as promised, hired Matory as undersheriff and Barnes as head of the IAD. Matory asserts that throughout the campaign, Mason had tried to get her to help facilitate a sexual relationship between him and Barnes; she claims that he continued in this manner after he took office. According to Matory, after becoming sheriff, Mason regularly directed her to have Barnes come to his office. When on one occasion he threatened that she had better do so "or else," she asked what he meant by "or else". He responded, "[Y]ou think I'm playing. I'll show you." Matory asserts that after she told Masonshe was not going to arrange for him to have sex with Barnes, Mason became angry and began to distance himself from her. Not long thereafter, her demoted her from undersheriff to crime scene investigator.

For her part, Barnes claims that prior to Mason's taking office, she had several conversations with him, in person but mostly via text, in which he made what she believed were sexual overtures. She was able to subtly deflect his advances. She contends that after he became sheriff and she was hired as head of the IAD, she was often summoned to his office, ostensibly to report to him on her department's work; but according to Barnes, he never appeared interested in what she had to say and instead, just stared at her. She states that he made her feel so uncomfortable by the way he stared at her when she was summoned to his office that she did not want to be left alone with him. She asked that Matory be allowed to remain in his office during these meetings, but Mason refused. Like Matory, Barnes alleges that after she began to spurn Mason's unwanted advances toward her, she was demoted from head of IAD to patrol officer.

According to plaintiffs, after Mason demoted Matory, he replaced her as undersheriff with Pete Luke, a white male; and he replaced Barnes with Keith Barnett, a black male. Several months later - and apparently after Matory filed a charge of discrimination with the EEOC and received a notice of right to sue- Matory was terminated. Barnes resigned in August 2017 while this action was pending.

Plaintiffs' Causes of Action

Both plaintiffs have asserted claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983 for sexual harassment, claiming they suffered quid pro quo sexual harassment as well as sexual harassment based on hostile work environment.1 They have also sued under Title VII and § 1983 for gender discrimination. In addition, Matory has purported to sue for race discrimination under Title VII, § 1983 and § 1981, and for retaliation under Title VII. Both plaintiffs have also asserted state law claims for breach of contract/detrimental reliance. Defendants have moved for judgment on the pleadings or for summary judgment on all of these claims.

Judgment on the Pleadings: Pre-Employment Sexual Harassment

In their motion for judgment on the pleadings as to pre-employment claims, defendants point out that although Mason waselected sheriff on November 2, 2015, he was not sworn in as sheriff until December 31, 2015. They further note that many of plaintiffs' allegations relate to alleged acts of sexual harassment that occurred before Mason was even elected sheriff and others that occurred while he was sheriff-elect. They contend that, as a matter of law, neither Mason nor Hinds County may be held liable, under Title VII or under § 1983, based on conduct that predated Mason's tenure as sheriff.

Rule 12( c) Standard:

The standard for dismissal of a Rule 12(c) motion for judgment on the pleadings is the same as that for dismissal for failure to state a claim under Rule 12(b)(6). Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). In considering a Rule 12(b)(6) motion to dismiss, the court, liberally construing the complaint in the light most favorable to the plaintiff and taking as true all facts pled therein, must determine whether the complaint states a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556, 127 S. Ct. 1955).

Section 1983: With respect to plaintiffs' § 1983 claims, defendants maintain that Mason could not have been acting "under color of law" until he actually assumed the office of Hinds County Sheriff and that consequently, plaintiffs have no viable claim for sexual harassment under § 1983 based on actions Mason is alleged to have taken during his campaign or while sheriff-elect.

"The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of state law." West v. Atkins, 487 U.S. 42, 49, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988) (citations and internal quotations omitted). See also Angel v. La Joya Indep. Sch. Dist., 717 F. App'x 372, 376 (5th Cir. 2017) ("Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of state law.'"). Obviously, during the time that he was a mere candidate for office, Mason did not act under color of state law. Moreover, in the court's opinion, until he assumed office, Mason was not "clothed with the authority of state law" and hence did not act under color of state law. Accordingly, defendants are entitled to judgment on the pleadings as to plaintiffs' § 1983 claims to the extent those claims are based on actions which pre-date December 31, 2015. See Burrell v. City of Mattoon, 378 F.3d 642, 649 (7thCir. 2004) (concluding that mayor-elect and city council members, "though duly elected and sworn, were not yet in office because they had not been inaugurated as required by City ordinance" and therefore "were not yet 'state actors.'"); Carlos v. Santos, 123 F.3d 61, 65 (2d Cir. 1997) (holding that as defendant board member "had not yet even taken office" he "possessed no power by virtue of state law to misuse"); Griffith v. Girdler, No. CIV.A. 6: 07-442-DCR, 2009 WL 1956466, at *2 (E.D. Ky. July 8, 2009) (granting summary judgment on § 1983 claim on basis that the defendant was the mayor-elect, not mayor, at time of challenged action and thus was not acting under color of state law); cf. Brady v. Fort Bend Cty., 145 F.3d 691, 701 (5th Cir. 1998) (rejecting argument that sheriff-elect did not exercise final policymaking authority when delivering letters to plaintiffs advising he did not intend to rehire them as deputies, because once he assumed office, "he reaffirmed his intention not to rehire the Plaintiffs and gave effect to that intent by not rehiring the Plaintiffs. After [he] took office, he was a state actor wielding the policymaking authority described above with respect to filling available deputy positions in the sheriff's department.") (emphasis added); Arredondo v. Flores, No. CIV. A. L-05-191, 2008 WL 4450311, at *14 (S.D. Tex. Sept. 30, 2008), aff'd, 347 F. App'x 62 (5th Cir. 2009) (defendant sheriff "became a state actor wielding policymaking authority after taking office. By actingwith such authority when he gave effect to his personnel decisions upon taking office, [he] ... acted under color of law.").

Title VII: Title VII protects employees from discrimination by their employers. "Determining whether a defendant is an 'employer' under Title VII ... involves a...

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