Montogomery v. Mississippi

• Decision Date: 06 July 2007
• Docket Number: Civil Action No. 5:05-cv-217(DCB)(JMR).
• Citation: 498 F.Supp.2d 892
• Parties: James MONTGOMERY, Plaintiff v. State of MISSISSIPPI, City of Vicksburg, Laurence E. Leyens, In his Unofficial and Official Capacity as Mayor, Sidney H. Beauman, In his Unofficial and Official Capacity as Alderman, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

498 F.Supp.2d 892

James MONTGOMERY, Plaintiff v. State of MISSISSIPPI, City of Vicksburg, Laurence E. Leyens, In his Unofficial and Official Capacity as Mayor, Sidney H. Beauman, In his Unofficial and Official Capacity as Alderman, Defendants.

Civil Action No. 5:05-cv-217(DCB)(JMR).

United States District Court, S.D. Mississippi, Western Division.

July 6, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Lisa Mishune Ross, Lisa M. Ross, Jackson, MS, for Plaintiff.

Gary E. Friedman, Saundra Brown Strong, Phelps Dunbar, Meredith McCollum Aldridge, Mississippi Attorney General's Office, Jackson, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

BRAMLETTE, District Judge.

This cause is before the Court on the motion for summary judgment (docket entry 27) filed by defendants City of Vicksburg, and Laurence E. Leyens and Sidney Beauman in their individual and official capacities. Having carefully considered the motion, response and memoranda, as well as all exhibits attached thereto, and being otherwise fully advised in the premises, the Court finds as follows:

Plaintiff James Montgomery, a fireman employed by the City of Vicksburg, filed suit in December of 2005 alleging, inter alia, that he was demoted in violation of his First Amendment rights. On August 10, 2006, the plaintiff filed an amended complaint adding the State of Mississippi as a defendant. The City of Vicksburg, Laurence E. Leyens and Sidney Beauman move for summary judgment.

I. Summary Judgment Standard

A motion for summary judgment is appropriately granted when the moving party demonstrates tut there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the initial burden of identifying relevant portions of the record, including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A contested fact is "material" when it has the potential change the outcome of the case. Ginsberg 1985 Real Estate P'ship v. Cadle Co., 39 F.3d 528, 531 (5th Cir.1994)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). An issue is "genuine" if "the evidence is sufficient for a reasonable jury to return a verdict for the non-moving party." Id. A motion for summary judgment is appropriately granted when the moving party demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The moving party has the initial burden of identifying relevant portions of the record, including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

If the moving party sustains its burden, the burden shifts to the nonmoving party to show with "significant probative evidence" that a genuine issue as to a material fact actually exists. Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.1994). To overcome summary judgment, the nonmoving party must do more than simply rely on the pleadings or merely rest "upon conclusory allegations, improbable inferences, and unsupported speculation." Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1449 (5th Cir.1993). The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-movant must "designate specific facts showing the existence of a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. 2505. "The mere existence of a scintilla of evidence is insufficient to defeat a properly supported motion for summary judgment." Id. at 252, 106 S.Ct. 2505. Moreover, the nonmoving party must make a showing sufficient to establish the existence of an essential element of its case, an element on which it will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

In light of the facts presented by the nonmoving party, along with any undisputed facts, this Court must decide whether the moving party is entitled to judgment as a matter of law. When deciding a motion for summary judgment, the evidence submitted by the nonmoving party is presumed valid, and all reasonable inferences that may be drawn from that evidence must be drawn in favor of the party opposing summary judgment. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The district court, therefore, must not "resolve factual disputes by weighing conflicting evidence, ... since it is the province of the jury to assess the probative value of the evidence." Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir.1980). Summary judgment is improper where the court merely believes it unlikely that the nonmovant will prevail at trial. National Screen Serv. Corp. v. Poster Exchange Inc., 305 F.2d 647, 651 (5th Cir.1962). By contrast, summary judgment for the moving party is only proper when a rational jury, looking at the record as a whole, could not find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

II. The Facts of the Case

On April 10, 2005, the Vicksburg Post published the following letter on its "Letters to the Editor" page:

A city employee needs to be thinking about "what type of boss would I like to have for the next four years?" All city employees need to examine the mayor and alderman candidates before they vote!

Mayor Leyens appreciated the city employees by giving them a pay raise. The other night I was watching a county board meeting on Channel 23. Michael Mayfield and Charles Selmon said during this meeting, "I do not care if a county employee is evaluated on his or her work performance or are awarded incentives!" Michael Mayfield said, "I give the county employees a paycheck that is good enough for them!" If elected, these two candidates would treat city employees with out any appreciation, evaluations or incentives. You can watch these two on Channel 23 with your own eyes!

If I were a city employee, I would want to be appreciated, evaluated on my work performance yearly and, most importantly, be awarded with incentives. I would vote for Mayor Leyens because at least he appreciates his employees enough to reward them with a. raise.

If you vote for Selmon or Mayfield, these two are just doing the employee a favor by giving him or her a paycheck. These two candidates would not want to be treated like that! City employees, vote not for color but for right or wrong!

Lisa Langley

The elections to which the letter referred were the City of Vicksburg's upcoming municipal elections, including the general election to be held on June 7, 2005. On April 14, 2005, the Vicksburg Post published the following letter written by the plaintiff, James Montgomery, in response to Langley's letter:

This is in response to the letter written by Ms. Lisa Langley in the Vicksburg Post on Sunday. Ms. Langley stated that Mayor Leyens appreciated the city employees and showed this by " giving them all pay raises. Well, this fact is not entirely true.

It may be true for all the department heads, but it surely isn't true for the vast majority of the city employees, especially for the fire department.

I am a captain on the fire department and I haven't received any such pay raise! In fact, none of the captains, lieutenants or privates have received any such pay raises. We can't even get a cost-of-living raise because the mayor is against across-the-board pay raises.

Now, this comes from an administration that voted for their own pay raises and gladly accepted them. Is that not an across-the-board pay raise? This is also from a man who when he first took office stated that he knew full well what the job of mayor paid and would not accept a pay raise. This administration has voted on pay raises and accepted them. They even have a percentage raise that will automatically go into effect every few years for them.

Now tell me how the mayor can be against across-the-board pay raises when all his raises are across-the-board? We all have to pay the same high prices for gasoline and food as the mayor and aldermen do, but we can't offset our costs like they can.

I sincerely hope that the next mayor will be more considerate of his employees when he takes office. Ms. Langley did make a statement in her article that I also agree with and that was that all city employees should vote for what they feel is right in this upcoming election. This is why the present administration shall not receive my vote.

James Montgomery

On April 19, 2005, Fire Chief Keith Rogers and Director of Human Resources Lamar Horton met with Montgomery concerning the letter. Deposition of James Montgomery, p. 27; Deposition of Keith Rogers, p. 56; Transcript of Testimony of Lamar Horton at Appeal Before Civil Service Commission., September 28, 2005, p. 106. After the meeting, Horton wrote the following memo to Montgomery's Personnel file:

Chief Rogers and myself met with Captain Montgomery today to review his April 10th letter to the Editor.

I pointed out that the Civil Service laws of the State of Mississippi, clearly prohibit the "active participation in political activities". The letter that Captain Montgomery wrote clearly falls in to that categccy. I informed Captain Montgomery that we would be conducting a full investigation and farther [sic] disciplinary actions could result.

We also reviewed the issues raised by Captain Montgomery, such as, cost of living raises, tier raises and the tier system, the...