Posey v. City of Moss Point

• Decision Date: 19 May 2022
• Docket Number: CIVIL 1:20-cv-90-HSO-RHWR
• Parties: TOMMY POSEY PLAINTIFF v. CITY OF MOSS POINT, MISSISSIPPI; MARIO KING; and JOHN DOES 1-5 DEFENDANTS
• Court: U.S. District Court — Southern District of Mississippi

TOMMY POSEY PLAINTIFF
v.
CITY OF MOSS POINT, MISSISSIPPI; MARIO KING; and JOHN DOES 1-5 DEFENDANTS

CIVIL No. 1:20-cv-90-HSO-RHWR

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

May 19, 2022

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS CITY OF MOSS POINT, MISSISSIPPI, AND MARIO KING'S MOTION [93] FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFF TOMMY POSEY'S CLAIMS AGAINST DEFENDANTS CITY OF MOSS POINT, MISSISSIPPI, AND MARIO KING

HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE

BEFORE THE COURT is Defendants City of Moss Point, Mississippi, and Mario King's Motion [93] for Summary Judgment. This Motion is fully briefed. After due consideration of the record, the parties' submissions, related pleadings, and relevant legal authority, the Court finds that Defendants City of Moss Point, Mississippi, and Mario King's Motion [93] for Summary Judgment should be granted, and that Plaintiff Tommy Posey's claims against Defendants should be dismissed with prejudice.

I. BACKGROUND

A. Factual background

Plaintiff Tommy Posey (“Plaintiff” or “Posey”) is a resident of Jackson County, Mississippi, Am. Compl. [68] at 1, who was employed by the City of Moss Point (“City”) from 1982 until he retired in 2019, Ex. 3 [94-3] at 10-11. Posey “worked in various capacities within the fire department, ” Am. Compl. [68] at 2,

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including as fire chief at the time of his retirement in July 2019, Ex. 3 [94-3] at 1011. Posey is a white male over the age of forty. Am. Compl. [68] at 9-10.

Posey alleges that in July 2017, Mario King (“King”) became Mayor of the City and that, after he took office, he engaged in a pattern of harassing older employees. Generally, Posey asserts that King: (1) forced or coerced other employees into making knowingly false and defamatory comments about other employees; (2) altered employees' performance evaluations in an effort to have them discharged; (3) sought to use his position to intimidate employees and to benefit himself, his family, and his friends; (4) misused City resources and punished those who reported him; (5) used his position to obtain benefits from private entities; (6) tried to eliminate positions in order to receive pay increases; (7) harassed employees until they were forced to leave their employment; and (8) retaliated against employees who filed charges with the Equal Employment Opportunity Commission (“EEOC”). Id. at 2-4.^[1] Posey further asserts that the Board of Aldermen of the City of Moss Point (“Board”) allowed King to operate without oversight. Id. at 4.

B. Procedural history

On July 2, 2019, twelve individuals who were employees or residents of the City (“Plaintiffs”) initiated an action in this Court against the City and King (collectively “Defendants”). Compl. [1]. Plaintiffs collectively advanced seven claims, including First Amendment, Second Amendment, Title VII, age discrimination,

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taxpayer, and state-law claims. See id. On September 17, 2019, Plaintiffs filed an Amended Complaint [18] adding an additional plaintiff, and Defendants filed a Motion for Severance [20], arguing that the Court should sever the claims of each Plaintiff into individual actions. Mot. [20]. The Court granted Defendants' Motion [20] on March 2, 2020, and Plaintiffs' claims were severed into twelve separate cases, in addition to the original parent suit. Order [67]. The Court ordered each Plaintiff to file an amended complaint in their individual case “set[ting] forth factual allegations and claims specific to him or her.” Id. at 22.

Posey filed his Amended Complaint [68] on May 1, 2020, advancing five causes of action. Four were brought against both the City and King: (1) Second and Fourteenth Amendment violations pursuant to 42 U.S.C. § 1983 (Count One); (2) First Amendment and equal protection violations pursuant to 42 U.S.C. § 1983 (Count Two); (3) Age Discrimination in Employment Act (“ADEA”) and equal protection claims for age discrimination and retaliation pursuant to 42 U.S.C. § 1983 (Count Three); and (4) Title VII and equal protection claims for racial discrimination and harassment pursuant to 42 U.S.C. § 1983 (Count Five).^[2] See Am. Compl. [68] at 5-12. The Amended Complaint also asserted state-law claims against Defendant King individually for intentional infliction of emotional distress, malicious interference with employment, and outrage (Count Six). See id. at 11-12.

Defendants filed a Motion [70] to Dismiss which sought dismissal of all of

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Posey's claims pursuant to Federal Rule of Civil Procedure 41(b), and more specifically sought dismissal on the merits of Posey's Second and Fourteenth Amendment claims in Count One and his state-law claims in Count Six. Mem. [71]. The Court entered an Order [83] on February 26, 2021, granting in part and denying in part Defendants' Motion. Order [83]. The Court denied Defendants' request for a Rule 41(b) dismissal but granted dismissal of Posey's Second and Fourteenth Amendment claims against the City and King in Count One, his statelaw claims against King in Count Six, and all of his 42 U.S.C. § 1983 claims against King in his official capacity. Id. at 21-22. The Order [83] permitted Posey's claims in Counts Two, Three, and Five to proceed. Id. at 22.

Defendants have now filed the present Motion [93] for Summary Judgment seeking dismissal of all remaining claims against them. Mot. [93]. Posey has filed a Response [96] in Opposition arguing that his claims against the City and King should not be dismissed. Posey does, however, concede his First Amendment claims against Defendants in Count Two and his race discrimination claims in Count Five, and the Court will therefore dismiss these claims. Resp. [96] at 10.

II. DISCUSSION

A. 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). If the movant carries this burden, “the nonmovant must go beyond the pleadings and designate specific facts showing that

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there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). In order to rebut a properly supported motion for summary judgment, the opposing party must show, with “significant probative evidence, ” that there exists a genuine issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000). “A genuine dispute of material fact means that evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quotation omitted). Summary judgment is appropriate if the evidence is merely colorable or is not significantly probative. Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co., 671 F.3d 512, 517 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). In deciding whether summary judgment is appropriate, the Court views the facts and inferences in the light most favorable to the nonmoving party. RSR Corp. v. Int'l Ins. Co., 612 F.3d 851, 858 (5th Cir. 2010).

B. Claims conceded by Plaintiff

Posey states that he does “not oppose . . . Defendants' Motion [93] for Summary Judgment” as to his First Amendment claims. Resp. [96] at 10. Because Posey has conceded his First Amendment claims, the Court will dismiss the First Amendment claims in Count Two. Posey's Response [96] also states that he “concedes the remaining claim that his discharge was based upon race, ” and the Court will dismiss Posey's Title VII and 42 U.S.C. § 1983 claims for race discrimination in Count Five. Id. This leaves for resolution Posey's: (1) ADEA and

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§ 1983 equal protection claims for age discrimination and retaliation in Count Three; and (2) Title VII and § 1983 equal protection claims for race-based harassment in Count Five.

C. Count Three - Age discrimination and retaliation under 42 U.S.C. § 1983 and the ADEA

1. 42 U.S.C. § 1983 claim

The Amended Complaint [68] advances an equal protection claim pursuant to 42 U.S.C. § 1983 for age discrimination and retaliation. Am. Compl. [68] at 8-10. Posey asserts that the City and King discriminated against older employees by making derogatory remarks about their age, requesting that they retire, calling out employees' age-related ailments, reassigning them to positions for which they were not qualified, and attempting to lower their salaries. Id. at 8-9. With respect to Posey, he avers that King asked him to retire “on multiple occasions.” Id. at 9. Posey claims that King's “daily harassments and threats” ultimately “compelled [him] to resign in order to remove himself from the hostile work environment.” Id.

“Section 1983 does not create any substantive rights, but instead was designed to provide a remedy for violations of statutory and constitutional rights.” Lafleur v. Tex. Dept. of Health, 126 F.3d 758, 759 (5th Cir. 1997). The Court employs a two-step inquiry for determining whether a § 1983 remedy exists: “(1) if the plaintiff asserts the violation of a federal right, then a § 1983 remedy exists unless, (2) the defendant can show that Congress specifically foreclosed a remedy under § 1983 by providing a comprehensive enforcement mechanism for protection of a federal right.” Id. (citing Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 110 (1989));

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see also Gazzo v. Miss. Dept. of Pub. Safety, 1:09CV719-LG-RHW, 2010 WL 382588, at *3 (S.D.Miss. Jan. 27, 2010) (applying this test). As to the second step, Defendants argue that Posey's claims under Count Three are preempted by the ADEA, 29 U.S.C. § 621, et seq. Mem. [94] at 10-12.

In Lafleur, the Fifth Circuit noted that “Congress has enacted a statutory provision to confront age discrimination in the work place via the ADEA, ” and held “that the ADEA is the sole remedy for persons...