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Kelly v. Harrison County Board of Supervisors

United States District Court, Fifth Circuit

October 31, 2013

ANNIE KELLY, Plaintiff,
HARRISON COUNTY BOARD OF SUPERVISORS and MELVIN BRISOLARA, individually and as Sheriff of Harrison County, Mississippi, Defendants.


LOUIS GUIROLA, Jr., Chief District Judge.

BEFORE THE COURT are the Motion for Summary Judgment [66] filed by Sheriff Melvin Brisolara, the Motion for Summary Judgment [69] filed by the Harrison County Board of Supervisors, [1] and the Motion to Strike [76] filed by Brisolara. The defendants seek judgment as a matter of law in this lawsuit filed by the plaintiff Annie Kelly as a result of the termination of her employment. Defendants also ask the Court to strike a portion of Kelly's response in opposition to the Motions. The defendants claim that Kelly was terminated for misuse of the Harrison County Sheriff's Department's employee tuition assistance program and for instructing a subordinate employee to misuse the program. Kelly, however, claims that she was terminated because of her race (African American), her gender, her military service, and/or her age (forty-nine). She also alleges that the Sheriff's Department terminated her in retaliation for filing a claim with the Equal Employment Opportunity Commission. After reviewing the submissions of the parties and the applicable law, the Court finds that the defendants' Motions for Summary Judgment should be granted.


Annie Kelly began working for the Harrison County Sheriff's Department on February 3, 2003. (Compl. at 2, ECF No. 1). She was eventually promoted to the rank of Captain. (Brisolara Mot., Ex. C at 1-2, ECF No. 66-3). The Sheriff's Department provides a college tuition assistance program for employees seeking degrees in a field related to law enforcement. (Brisolara Mot., Ex. K at 18-19, ECF No. 66-11). The Sheriff's Department policy provides that employees will be reimbursed for tuition expenses based on the grades earned by the employee. ( Id. )

In 2010, Kelly participated in the tuition assistance program while pursuing a degree in Administration of Justice from the University of Southern Mississippi. (Compl. at 3, ECF No. 1). In early 2011, Major Phillip Taylor of the Sheriff's Department learned that Kelly and two other employees - Lieutenant Earnest Thomas and Deputy Cheryl Brown - were also receiving tuition assistance due to their military service, and he filed a complaint against them. (Brisolara Mot., Ex. K at 2, 6, ECF No. 66-11). An investigation of these employees was then conducted by Lieutenant David Sanderson. ( Id. at 1-2). During the investigation, Sanderson learned that Kelly had received $9513.00 in Pell Grant Financial Assistance Funds as well as $5503.20 in G.I. Bill Financial Assistance Funds due to her military service. He concluded that, as a result of the federal financial assistance Kelly received, she only incurred $81.03 in out-of-pocket expenses, but she requested and received "reimbursement" from the Sheriff's Department in the amount of $7231.62. (Brisolara Mot., Ex. K at 2-3, 16-39, ECF No. 66-11). Sanderson determined that, as a result of the county and federal tuition assistance provided, Kelly had received refunds from the University totaling $11, 081.00. ( Id. at 3).

The Sheriff's Department found that Kelly, Thomas, and Brown had inappropriately requested reimbursement for tuition while also receiving federal funds that covered the tuition. ( Id. at 2-3). The Sheriff's Department ordered these employees to return the funds paid by the Sheriff's Department, and an administrative hearing was held to determine whether additional disciplinary action should be taken. ( Id. at 4). The Sheriff's Department claims Kelly was terminated, because she was a high-ranking employee who had misled a subordinate employee - Thomas - that it was permissible to accept tuition reimbursement from Harrison County regardless of whether he had out-of-pocket expenses. (Brisolara Mot., Ex. C at 4, ECF No. 66-3). The Sheriff's Department also found that Kelly had failed to take responsibility for her actions. ( Id. ) Brown was terminated for failing to return the funds and for failing to appear at an administrative hearing concerning her conduct. ( Id. at 5-6). The Sheriff's Department asserts that Thomas was demoted and a written reprimand was placed in his file, but he was not terminated because he accepted responsibility for his actions and he had been misled by his direct superior, Kelly. ( Id. at 5).

The Sheriff's Department also conducted an investigation of all of the other employees participating in the tuition assistance program. (Brisolara Mot., Ex. K at 4, ECF No. 66-11). As a result of the expanded investigation, the Sheriff's Department learned that one other employee had misused the program, but the employee was no longer employed by the Department at the time of the investigation. ( Id. )

Kelly filed the present lawsuit asserting the following claims against the Harrison County Board of Supervisors and Sheriff Melvin Brisolara in both his individual and official capacities: Title VI and Title VII racial discrimination, Title VI and Title VII gender discrimination, retaliation, age discrimination, violation of the Uniformed Services Employment and Reemployment Rights Act, breach of fiduciary duty, breach of contract, gross breach of contract, respondeat superior, breach of the duty of good faith and fair dealing, negligent infliction of emotional distress and mental anguish, intentional and/or gross infliction of emotional distress and mental anguish, negligence per se, gross negligence, negligent supervision/training, and negligent hiring/retention. (Compl., ECF No. 1). She seeks compensatory and punitive damages. ( Id. )


A motion for summary judgment may be filed by any party asserting that there is no genuine issue of material fact that the movant is entitled to prevail as a matter of law on any claim. Fed.R.Civ.P. 56. The movant bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant carries its burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Celotex Corp., 477 U.S. at 324-25. The nonmovant may not rest upon mere allegations or denials in its pleadings but must set forth specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).


In his Motion for Summary Judgment, Brisolara first asserts that there is no individual liability for employees under Title VII. In the alternative, he argues that he is entitled to qualified immunity.

It is "settled Fifth Circuit law" that "employees may not be sued for damages in their individual capacities." Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999); see also Smith v. Amedisys Inc., 298 F.3d 434, 448 (5th Cir. 2002). Similarly, "Title VI permits suits only against public or private entities receiving funds and not against individuals...." Muthukumar v. Kiel, No. 11-10517, 478 F.Appx. 156, 158-59 (5th Cir. May 30, 2012); see also 42 U.S.C. ยง 2000d.

As a result, Brisolara cannot be held individually liable under Title VI or Title VII. Since qualified immunity only applies to claims filed against employees in their individual capacities, it is not necessary for the Court to determine whether Brisolara is entitled to qualified immunity with regard to Kelly's Title VI and Title VII claims. See Walker v. Howard, 517 F.Appx. 236, 237 (5th Cir. 2013). The Court finds that all of Kelly's Title VI and Title VII claims filed against Brisolara in his individual capacity must be dismissed with prejudice.


Kelly has attempted to plead race discrimination claims under both ...

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