United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK, District Judge.
Defendant Town of Plantersville, Mississippi has filed a Motion for Summary Judgment in this case. After reviewing the motion, response, rules, and authorities, the Court finds as follows:
Factual and Procedural Background
Plaintiff Maury Schuh filed this action under Title VII, Sections 1983 and 1981, the First Amendment to the Constitution, as well as Mississippi state law following his termination of employment as the Chief of Police for the Town of Plantersville.
Schuh, a Caucasian male, was hired as the Town of Plantersville's Chief of Police in May of 2010 on recommendation of the Caucasian mayor, Gloria Holland, and approved by a majority-Caucasian Board of Aldermen. Schuh was suspended with pay following a June 5, 2012, Board meeting so that an investigation could be completed regarding citizen complaints of his performance as Chief of Police. Schuh was given the opportunity to respond to the Board's concerns, but was terminated by the same Board that hired him on July 17, 2012.
Plaintiff contends his termination was motivated by race, in retaliation for exercising his First Amendment free speech rights, and because of his military service obligations. Schuh further claims he was terminated for refusing to engage in illegal activity. The Town of Plantersville has filed a Motion for Summary Judgment arguing that all of Plaintiff's claims should be dismissed.
Summary Judgment Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when the evidence reveals no genuine dispute regarding any material fact and the moving party is entitled to judgment as a matter of law. The rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. The nonmoving party must then "go beyond the pleadings" and "designate specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548 (citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, "but only when... both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). However, conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash. , 276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile , 10 F.3d 1093, 1097 (5th Cir. 1997); Little , 37 F.3d at 1075.
Discussion and Analysis
I. Mississippi Department of Employment Security (MDES) Proceedings
Plaintiff seeks to have the Court recognize the preclusive effect of the findings by the MDES as to Plaintiff's First Amendment retaliation, Sections 1981 and 1983, USERRA, and state public policy claims. In particular, Plaintiff contends that the following facts are established by the MDES decision:
1. There is no evidence that Schuh violated any policy during the incident involving him preventing a suicide or shooting a vicious dog.
2. There is no evidence that Schuh violated any policy by the "ride along" program.
3. There is no evidence that Schuh went over his DARE budget, coerced subordinates to write tickets, acted aggressive at city meetings or was insubordinate to City officials.
4. The Town failed to prove that Schuh was terminated for misconduct.
Under Mississippi law, four elements are required for collateral estoppel to apply. "The party must be seeking to relitigate a certain issue, that issue must already have been litigated in a prior action, the issue must have been determined in the prior suit, and the determination of the issue must have been essential to the prior action." Stafford v. True Temper Sports , 123 F.3d 291, 295 (5th Cir. 1997) (citing Raju v. Rhodes , 7 F.3d 1210, 1215 (5th Cir. 1993), cert. denied, 511 U.S. 1032 , 114 S.Ct. 1543, 128 L.Ed.2d 194 (1994)).
The law is clear that "when a state agency acting in a judicial capacity... resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, federal courts must give the agency's fact-finding the same preclusive effect to which it would be entitled in the State's courts." Univ. of Tenn. v. Elliott , 478 U.S. 788, 799, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) (internal quotation marks, alteration, and citation omitted). "Under Mississippi law, res judicata or collateral estoppel precludes re-litigation of administrative decisions." Smith v. Univ. of Miss. , 797 So.2d 956, 963 (Miss. 2001); Zimmerman v. Three Rivers Planning & Dev. Dist. , 747 So.2d 853, 861 (Miss. Ct. App. 1999). "Once an agency decision is made and the decision remains unappealed beyond the time to appeal, it is barred by administrative res judicata or collateral estoppel.'" A & F Prop., LLC v. Madison Cnty. Bd. Of Sup'rs , 933 So.2d 296, 302 (Miss. 2006) (quoting Zimmerman , 747 So.2d at 861).
While unreviewed state administrative fact-finding is never entitled to preclusive effect in actions under Title VII, that is not so as to claims brought under Section 1981. See Elliott , 478 U.S. at 796-97, 106 S.Ct. 3220 (applying collateral estoppel to state administrative fact-findings for purposes of sections 1981 and 1983 but not for purposes of Title VII, and explaining that "Congress in enacting the Reconstruction civil rights statutes, did not intend to create an exception to general rules of preclusion"). See also Jett v. Dallas Indep. Sch. Dist. , 798 F.2d 748, 763 n.14 (5th Cir. 1986) (noting that in some respects relief is available under Title VII where it is not under sections 1981 and 1983, and citing Elliott for recognition of difference in application of collateral estoppel to the latter but not the former). Thus, since Mississippi courts give preclusive effect to the decisions of the MDES, if supported by the evidence and in the absence of fraud, then so should this court. See Cox v. Desoto County , 564 F.3d 745, 748 (5th Cir. 2009). Indeed, "[a] rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise." Sprouse v. MESC , 639 So.2d 901, 902 (Miss. 1994). However, this Court is not required to apply collateral estoppel even if it is warranted as collateral estoppel is "neither mandatory nor mechanically applied." Marcum v. Miss. Valley Gas Co. , 672 So.2d 730, 733 (Miss. 1996); Alexander v. MedPoint Prof'l Staffing, LLC, 2013 U.S. Dist. Lexis 102096 (N.D. Miss. July 22, 2013).
Defendant contends that the burden of proof demanded of the employer at an MDES proceeding precludes application of collateral estoppel to the issues asserted by the Plaintiff. In an MDES proceeding, the employer has the burden of establishing that the claimant was discharged for misconduct connected to the employment by "substantial, clear, and convincing evidence." Gibson v. Miss. Dep't of Empl. Sec. , 130 So.3d 563, 565 (Miss. Ct. App. 2014); Gore v. Miss. Employ. Sec. Comm'n , 592 So.2d 1008, 1010 (Miss. 1992); MISS. CODE ANN. § 71-5-513A(1)(c). The Town of Plantersville was unable to meet that burden on appeal to the MDES Commission.
The claims brought by Plaintiff, here, however, have a different burden of proof. Aside from the "shifting burden" under the McDonnell Douglas analysis for Title VII and Sections 1981 and 1983 claims, the Plaintiff is tasked with proving his case by a "preponderance of the evidence, " a lesser burden than clear and convincing evidence. See Herman & MacLean v. Huddleston , 459 U.S. 375, 387, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983) (noting that "in a typcal civil suit for money damages, plaintiffs must prove their case by a preponderance of the evidence"). Moreover, the burden on the employer under McDonnell Douglas is only one of "articulation" of a legitimate non-discriminatory reason for the adverse employment action. Indeed, Plaintiff carries the ultimate burden at all times. See Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (holding that "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff").
Defendant argues it would be unfair to credit to Plaintiff facts and conclusions which the employer was unable to prove by clear and convincing evidence, but that, in this action, the Plaintiff would only have to show by a preponderance of the evidence. Defendant likens the Plaintiff's proposition for preclusive effect in this litigation to the inapplicability of collateral estoppel of earlier civil proceedings to criminal elements. Indeed, the Mississippi Supreme Court has noted:
In civil cases collateral estoppel functions as though it were a rule of evidence. It stipulates how certain facts may be established at trial. Where an issue of fact is actually litigated and resolved in one trial and where that fact was essential to the judgment in the first trial, that fact is taken as established in subsequent trials involving the same parties. The fact thus need not be - and cannot be - relitigated in the second trial. The party in whose favor such fact was resolved in the first trial is said to enter the second trial with that fact established in his favor. This notion works reasonably well in civil litigation, where facts are established by a preponderance of the evidence, because their existence is by a factor of 51 to 49 more probable than not.
But it doesn't work at all in criminal cases. This is so because by no stretch of the imagination can a not guilty verdict be said to establish affirmatively that the defendant was innocent of the crime.
Technically speaking, a not guilty verdict means that the jury failed to find beyond a reasonable doubt that the defendant was guilty. The jury may well have concluded that there was strong evidence against the defendant though of a lesser dignity than beyond a reasonable doubt. For example, the jury may have found by a preponderance of the evidence that the defendant was guilty. The jury may even have considered that the evidence of guilt was clear and convincing but because it did not rise to ...