Keen v. Miller Envtl. Grp., Inc.

• Decision Date: 10 December 2012
• Docket Number: No. 12–60220.,12–60220.
• Citation: 702 F.3d 239
• Parties: Deborah KEEN, Plaintiff–Appellant, v. MILLER ENVIRONMENTAL GROUP, INC.; Aerotek, Inc., Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

702 F.3d 239

Deborah KEEN, Plaintiff–Appellant,

v.MILLER ENVIRONMENTAL GROUP, INC.; Aerotek, Inc., Defendants–Appellees.

No. 12–60220.

United States Court of Appeals, Fifth Circuit.

Dec. 10, 2012.

Douglas Brett Turnbull, Farris, Riley & Pitt, L.L.P., Birmingham, AL, Clyde H. Gunn, III, W. Corban Gunn, David Neil Harris, Jr., Christopher Collins Van Cleave, Corban Gunn & Van Cleave, Biloxi, MS, for Plaintiff–Appellant.

LeAnn Walber Nealey, Paul Michael Ellis, Butler, Snow, O'Mara, Stevens & Cannada, P.L.L.C., Ridgeland, MS, Patrick Timothy Bergin, Butler, Snow, O'Mara, Stevens & Cannada, P.L.L.C., Gulfport, MS, David M. Thomas, II, Anne Harlan Latino, Armin J. Moeller, Jr., Balch & Bingham, L.L.P., Jackson, MS, for Defendants–Appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.

CARL E. STEWART, Chief Judge:

Plaintiff–Appellant, Deborah Keen appeals the district court's grant of summary judgment in favor of Defendants–Appellees, Miller Environmental Group (“Miller”) and Aerotek on her negligent hiring claim under Mississippi law. For the reasons provided below, we AFFIRM.

I. FACTS AND PROCEEDINGS

On April 20, 2010, the Deepwater Horizon drilling rig exploded in the Gulf of Mexico (“Gulf”). The explosion caused, among other things, a 152–day leak of at least 93.5 million gallons of crude oil from the Macondo well into the Gulf.

As a result of the explosion, numerous sites along the Gulf Coast required emergency cleanup efforts. One of those cleanup sites was in Pascagoula, Mississippi. Miller, a New Jersey corporation, was a contractor at the Pascagoula cleanup site. Miller subcontracted out its staffing to Aerotek, a Virginia corporation.

On May 17, 2010, Rundy Robertson applied to Aerotek to be a technician at the Pascagoula cleanup site. The role of a technician was to serve as a general laborer, manually removing tar balls from the coast. Robertson had a lengthy criminal history, including convictions for (i) cruelty to a child in the first degree; (ii) robbery; and (iii) contributing to the delinquency of a minor. The third conviction had required Robertson to register as a sex offender, which he failed to do. Additionally, Robertson had previous charges for (i) simple battery; (ii) sexual battery; (iii) forcible rape; and (iv) attempted first degree murder. As part of his application, Robertson submitted a signed consent for Aerotek to conduct a background check. However, he stated in his application that he had no criminal history. Aerotek hired Robertson without conducting the background check. It assigned him to the Miller contract in Pascagoula.

Like Robertson, Keen joined Aerotek as a technician. Aerotek also assigned her to the Miller contract in Pascagoula.

On June 20, 2010, Keen fell ill during the workday. Robertson, by chance, was scheduled to work only a half-day that day. He offered to drive her home after they both had clocked out of work. Upon arriving at her home, Keen alleges that Robertson forcibly raped her. A grand jury declined to indict Robertson for the alleged crime.

Keen filed suit against Miller and Aerotek, in Mississippi state court, for negligent hiring, retention, training, and entrustment. Miller and Aerotek subsequently removed the case to federal court.

Ultimately, Keen dropped her negligent training and entrustment claims. Miller and Aerotek moved separately for summary judgment on the remaining negligent hiring and retention claims. The district court granted the two motions on January 16, 2012, and entered final judgment against Keen on February 27, 2012.

On appeal, Keen pursues only her negligent hiring claims. First, Keen argues that Mississippi law imposes a duty on employers to conduct criminal background checks, at least within the factual circumstances of this case. Second, Keen argues that Miller and Aerotek breached self-imposed duties by failing to comply with purported internal policies that required them to conduct background checks on all new hires. Finally, Keen relies on the report of a human resources expert and on the testimony of a corporate representative for Miller, both of which she had offered to the district court as evidence of industry practice pertaining to background checks. Keen argues that this evidence created a genuine issue of material fact as to whether Miller and Aerotek negligently breached a duty of care owed to her by hiring Robertson without conducting a background check.

After careful review of Keen's claims, we conclude that Mississippi law simply does not support her first two arguments. Furthermore, Keen offers virtually no authority for the proposition that Miller and Aerotek had a duty to conduct criminal background checks on Robertson. Accordingly, there is no genuine issue of material fact as to the existence of that duty. We thus AFFIRM the district court's grant of summary judgment in favor of Miller and Aerotek.

II. STANDARD OF REVIEW

“We review a district court's grant of summary judgment de novo, applying the same legal standards that the district court applied, and we view the evidence in the light most favorable to the nonmoving party.” Gilbane Bldg. Co. v. Admiral Ins. Co., 664 F.3d 589, 593 (5th Cir.2011) (citation omitted). The Court affirms “if there is no genuine issue of material fact and one party is entitled to prevail as a matter of law.” Cedyco Corp. v. PetroQuest Energy, LLC, 497 F.3d 485, 488 (5th Cir.2007) (citation omitted); see alsoFed.R.Civ.P. 56(a). “We review the district court's findings of fact for clear error.” Gilbane, 664 F.3d at 593 (citation omitted).

In this diversity action, we apply Mississippi law as interpreted by the Mississippi state courts. See Mid–Continent Cas. Co. v. Swift Energy Co., 206 F.3d 487, 491 (5th Cir.2000). Here, in the absence of on-point Mississippi law, “[o]ur primary obligation is to make an Erie guess as to how the [Mississippi] Supreme Court would decide the question before us.” Gilbane, 664 F.3d at 593 (citation omitted); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). “When making an Erie guess, our task is to attempt to predict state law, not to create or modify it.” SMI Owen Steel Co. v. Marsh USA, Inc., 520 F.3d 432, 442 (5th Cir.2008) (per curiam) (citation and internal quotation marks omitted).

“We consider [Mississippi] Supreme Court cases that, while not deciding the issue, provide guidance as to how the [Mississippi] Supreme Court would decide the question before us.” Gilbane, 664 F.3d at 594 (citation and internal quotation marks omitted). “Though the decisions and dicta of the [Mississippi] Supreme Court weigh more heavily in our Erie analysis, we also consider those decisions of [Mississippi] appellate courts in determining how the [Mississippi] Supreme Court would rule on this issue.” Am. Int'l Specialty Lines Ins. Co. v. Rentech Steel L.L.C., 620 F.3d 558, 566 (5th Cir.2010). “We are bound by our own precedent interpreting [Mississippi] law unless there has been an intervening change in authority.” Gilbane, 664 F.3d at 594 (citations omitted).

III. DISCUSSION

A claim for negligent hiring under Mississippi law requires “a finding of duty, breach of duty, causation and damage.” Roman Catholic Diocese of Jackson v. Morrison, 905 So.2d 1213, 1229 (Miss.2005) (en banc).¹ “To prevail ... a plaintiff must first prove the existence of a duty.” Enter. Leasing Co. S. Cent., Inc. v. Bardin, 8 So.3d 866, 868 (Miss.2009) (citation omitted). “Whether a duty exists in a negligence case is a question of law to be determined by the court.” Belmont Homes, Inc. v. Stewart, 792 So.2d 229, 232 (Miss.2001) (citation omitted).

In hiring an employee, an employer has a duty to “exercise a degree of care commensurate with [the] nature and danger of the business in which [the employer] is engaged and the nature and grade of service for which the [employee] is intended.” Eagle Motor Lines, Inc. v. Mitchell, 223 Miss. 398, 78 So.2d 482, 487 (1955) (emphasis, citation, and internal quotation marks omitted). Whether an employer's knowledge of an employee's incompetency was actual or constructive, the employer “is chargeable with knowledge of the incompetency ... if by the exercise of due or reasonable care or diligence [the employer] could have ascertained such incompetence.” Id. (emphasis, citation, and internal quotation marks omitted).

Recent cases have further clarified this duty of an employer to exercise reasonable diligence to ascertain the competency of a prospective employee. In Jones v. Toy, the Mississippi Supreme Court explained that the relevant inquiry is whether the employer “knew or should have known of the [employee's] incompetence.” 476 So.2d 30, 31 (Miss.1985) (citations omitted). A year later, the U.S. District Court for the Southern District of Mississippi directly extended Jones to the context of an employer's negligent hiring liability for an employee's intentional tort. See Thatcher v. Brennan, 657 F.Supp. 6, 10–11 (S.D.Miss.1986). The Thatcher court looked to whether the employer knew or should have known of the employee's “propensity for violence.” Id. at 11.

Finally, in Doe ex rel. Brown v. Pontotoc County School District, the Mississippi Court of Appeals stated that, to hold an employer liable for injuries inflicted by its employee, a plaintiff must prove that (i) the employer had actual notice of the employee's incompetence or unfitness; or (ii) the employer's “situation was such as to cast upon [the employer] the duty of inquiring” and the employer could have discovered the employee's incompetence or unfitness “by proper diligence.” 957 So.2d 410, 416–17 (Miss.App.2007) (citing, inter alia, Jones, 476 So.2d at 31;Eagle, 78 So.2d at 486–87).

Here, the district court assumed, for purposes of ruling on Miller and Aerotek's summary judgment motions, that Robertson had a propensity for violence....