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Samsel v. Desoto County School District

United States District Court, N.D. Mississippi, Oxford Division

March 17, 2017




         This cause comes before the court on the motion of defendants Desoto County School District, Desoto County School District Superintendent Milton Kuykendall and Olive Branch High School (“OBHS”) Principal Allyson Killough, for summary judgment, pursuant to Fed.R.Civ.P. 56. This court, having considered the memoranda and submissions of the parties, concludes that the motion should be granted in part and denied in part.


         This is a case, arising out of the firing of a high school football coach, which has aroused passionate disagreement among Desoto County residents. This court's opinion today does not attempt to answer the question of whether plaintiff's January 2014 firing as OBHS athletic director and head football coach was the “correct” one. Rather, this court must decide a much narrower issue: whether the decision to fire plaintiff was a lawful one. As discussed below, plaintiff's contract with the school district allowed him to be terminated as coach and athletic director even without good cause. Moreover, plaintiff offers insufficient proof that his firing violated federal law, including provisions barring age discrimination and retaliation for engaging in protected speech. This court therefore concludes that plaintiff's claims arising out of his termination (and failure to be rehired) should be dismissed. However, this court concludes that triable jury issues exist regarding plaintiff's state law defamation claim against Kuykendall, which it discusses below.


         I. Does plaintiff have any federal claims arising out of his termination as athletic director and football coach?

         Prior to discussing plaintiff's specific claims arising out of his termination (and failure to be rehired), this court will first evaluate some of the conflicting evidence in this case regarding exactly why he was fired as athletic director and coach at OBHS. In their briefing, the parties spend considerable energy discussing whether plaintiff was fired for, relatively speaking, more or less “noble” reasons. This is unsurprising, since both sides understandably wish to be viewed as “wearing the white hat” in this case. After carefully reviewing the record, however, this court harbors no suspicion that any legally-protected right was implicated by plaintiff's firing. That being the case, this court will not engage in a lengthy discussion of whether plaintiff's firing was the result of a more laudable motive such as concerns about his job performance or a less laudable one such as small-town politics. Neither conclusion would justify a federal court's interjecting itself into a school district's decision to fire a football coach operating under an at-will contract. This court will, instead, focus on the legal requirements of the specific claims asserted by plaintiff and determine whether genuine issues of fact exist regarding those claims.

         In seeking to justify their decision to fire plaintiff, defendants have submitted a lengthy list of alleged misconduct and/or performance deficiencies on his part, to wit:

Plaintiff, Scott Samsel, claims that the Defendants violated various state and federal laws by removing him as Head Football Coach and Athletic Director of the Olive Branch High School (“OBHS”) and transferring him to another school within the DeSoto County School District (the “School District”). Samsel claims that his allegedly protected speech, association, and age were reasons for his removal; this is not true. In 3reality, Principal Allyson Killough decided to remove Samsel from his supplemental positions, which left his licensed teaching contract intact, based on information that he had engaged in multiple instances of misconduct. Killough believed that such misconduct, if allowed to continue, would undermine her authority and continue to disrupt the working and learning environment at OBHS. ***
Killough decided to remove Samsel due to multiple issues reported by numerous individuals, including without limitation reports that Samsel: (1) made equipment purchases that violated the School District's policies; (2) used vulgar and offensive language to the football players and coaches to refer to Principal Killough; (3) interrupted a middle school football game to argue with the referees; (4) improperly used the school time and facilities for personal business; and (5) engaged in questionable conduct regarding the official athletic rules. Regardless of Samsel's protected conduct, the Defendants would have made the same decision to remove his supplemental duties and transfer him.

[Defendants' brief at 1-2].

With regard to the third allegation, defendants write that:
Shortly before Killough became Principal, she heard that Samsel had interrupted an Olive Branch Middle School football game to argue with the referees. According to witness reports, Samsel belligerently yelled at the referees and marched down to the field to argue with them about a call. Samsel, however, was not a coach of the middle school team. When the referees asked Samsel what gave him the right to question their calls, he responded that he was the Athletic Director of OBHS. The referees ejected Samsel from the game, and a police officer walked Samsel from the field.

[Defendants' brief at 4-5 (record citations omitted)]. Plaintiff has contested many of these allegations, but this court's review of the record suggests that they may have considerable substance. This court need not make a definitive finding in this regard since, once again, it is presently concerned with the issue of whether federal law may have been implicated by plaintiff's firing, not whether he “got a raw deal” by being removed as AD and coach.

         While defendants thus point to several instances of alleged misconduct by plaintiff, there is also evidence that other factors, including small-town politics, may have played a role as well.[1] In so concluding, this court finds plaintiff's deposition testimony to be particularly enlightening. Indeed, when given a chance at his deposition to speak freely regarding why he believed he was fired, plaintiff placed heavy emphasis on what appear to be issues of local and office politics. Most notably, plaintiff appeared to suggest that his firing was due, in large part, to the removal of his “lifetime friend” Kyle Brigance as OBHS principal near the start of the 2013 school year. [Samsel depo. at 20]. Plaintiff testified that, soon afterward (and apparently before Killough was even selected as the new principal in November), he began hearing rumors in the community that he would be next:

A. [F]or a couple of months prior to December, all I'd heard or basically since from the time Brigance was removed, all I'd heard that I was next. And that was very distracting.
Q. All you heard. When did those rumors start?
A. Right after Brigance was removed.

[Samsel depo. at 61-62].

         In his deposition, plaintiff was quite emphatic that there was a common public perception that his days as coach were numbered after his friend (and apparent protector) Brigance was removed as principal. For example, in discussing a meeting he had with the Olive Branch mayor shortly before he was fired, plaintiff testified that:

Q. You didn't -- earlier in your testimony today you were talking about people coming to you and coming to others and expressing their concern that or stating that you would be next. You're the next to be fired and that sort of thing. So I'm wondering if you talked about those rumors with the mayor?
A. I don't remember that being a part of the conversation, but I know he was well aware of those rumors.
Q. How do you know he was well aware of those rumors?
A. Everybody was.

[Samsel depo. at 79].

         This court finds plaintiff's deposition testimony to be quite interesting, since it suggests that there may have been factors at work in his termination which were known to the Olive Branch rumor mill but which are less than clear to this court. Whatever these factors might have been, plaintiff gave little, if any, indication that any federally-protected right was the reason for the common perception that he would be fired after Brigance's removal. As discussed below, plaintiff did testify that, after initially positive interactions between Killough and himself, their relationship soured after she had heard reports that he was not working well with “younger” coaches and that this gave her an age-based reason to want him fired. Assuming this actually occurred, however, it would have been well after Brigance's removal as principal. The same is true with regard to the alleged protected speech which, plaintiff contends, motivated his firing as football coach.

         In light of the foregoing, this court can only regard plaintiff's testimony as harming his federal claims. This court notes parenthetically that, even if the removal of plaintiff's friend, Brigance, was a prime factor in his termination, this does not necessarily mean that it was unjustified. Indeed, as far as this court is aware, perhaps plaintiff would have been justifiably fired long ago if he had not had Brigance protecting him. Perhaps not. What does seem clear is that the role Brigance's removal played in plaintiff's firing has no apparent connection to his federal claims.

         In his deposition, plaintiff placed great emphasis upon, and was obviously aggrieved by, an alleged instance of office politics which, he clearly believes, factored into his termination. In particular, plaintiff testified that he believes that his former offensive line coach Jeremy Toungett, who replaced him as head coach, was making negative comments about him to Principal Killough in order to get him fired:

Q. And do you know or do you think, do you have an idea of what Toungett was saying to Ms. Killough that you were doing?
A. I have no idea.
Q. But you had some suspicions about what he was saying?
A. He is a master of manipulation.

         [Samsel depo. at 55]. Plaintiff also testified that he believed that other members of the football staff were being influenced by Toungett to work against him:

Q. Was there anyone else other than Toungett that you felt like was working against you, Gaspard or Pool or Goodwin?
A. I think a lot of those guys were getting influenced by Jeremy Toungett.

         [Samsel depo. at 54].

         In his own deposition, Toungett acknowledged that he did make negative remarks about the state of the football program to Killough:

Q. After Ms. Killough came as principal, did you make some criticisms of Coach Samsel to Ms. Killough?
A. As far as the morale and singling somebody out, no. As far as the atmosphere back there, yes.

         [Toungett depo. at 15]. Toungett was very hesitant to give specifics about the exact nature of the negative atmosphere which, in his view, prevailed on the football team, but he did testify:

A. That it was a pretty volatile situation. I mean, as far as no -- it was just a bad situation. I don't know how to elaborate on that. It was a bad situation.

         [Toungett depo. at 18].

         In his deposition, Toungett acknowledged that the football coaches' morale was hurt by the fact that, in losing five games the previous season, the football team had failed to meet expectations. He otherwise failed to provide specific reasons for the team's morale problems, however. Toungett testified that he was named the new head football coach shortly after plaintiff was fired:

Q. When she had these conversations with you about how are things going, was this after he had told you he'd been fired as athletic director or before?
A. It was before.
Q. And then after he was fired as athletic director, is the next thing that happened is you got a call from her saying that she had fired him as head coach and wanted to make you head coach?
A. Yes.

         [Toungett depo. at 24-25]. This court is not in a position to judge Toungett's character, and it has no basis to determine whether or not he was working behind the scenes to get plaintiff fired so that he could become the new head coach. What is clear, however, is that this constitutes another alleged instance of local and/or office politics which has no apparent connection to any federally-protected right. Moreover, the fact that plaintiff himself clearly seems to believe that these matters of politics heavily influenced his firing can only be regarded as quite damaging to his federal claims.

         In his deposition, plaintiff offered yet another instance of local politics which, he believes, factored in his termination, namely jealously between different parts of Desoto County.

         Plaintiff emphasized that Superintendent Kuykendall hailed from the western part of the county, and he testified to his belief that jealousy of eastern Desoto County (where Olive Branch is located) was a factor in Kuykendall wanting to see him gone. Specifically, plaintiff testified that:

Q: So if you have some opinion I suppose it would be appropriate to ask what your opinion is.
A: Okay. That's pretty simple, I think there was a lot of jealousy in the county. I think there's been a history of jealousy between the western part of the county and the eastern part of the county. Mr. Kuykendall's roots are from the western part of the county. *** I think there are deep rooted political jealousies and political issues there between Mr. Kuykendall and Olive Branch and maybe even a board member or two.

         [Samsel 2nd depo. at 286].

         Thus, plaintiff appears to believe that Kuykendall did not want to see OBHS succeed in football and that, for that reason, he worked behind the scenes to have him fired. While plaintiff freely acknowledged that he had no actual proof that such is the case, he plainly believes it to have been a factor in his firing. In a broader sense, plaintiff's testimony confirms this court's overriding impression that, assuming that factors other than genuine concerns about his job performance motivated his firing, these factors involved issues which had nothing to do with either federal or state law. Having discussed some of its general impressions regarding the proof relating to the reason for plaintiff's termination, this court now proceeds to a discussion of the specific claims which plaintiff asserts in this case.

         Age Discrimination

         This court first considers plaintiff's ADEA claim, in which he alleges that his age (fifty-two) was the but-for cause of his termination as AD and head football coach. Samsel offers no direct evidence of age discrimination in this case, and he therefore relies upon the familiar McDonnell Douglas framework to meet his burden of proving his case at the summary judgment stage. It is well settled that

[a] plaintiff relying on circumstantial evidence must put forth a prima facie case, at which point the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for the employment decision. If the employer articulates a legitimate, non-discriminatory reason for the employment decision, the plaintiff must then be afforded an opportunity to rebut the employer's purported explanation, to show that the reason given is merely pretextual.

Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (citations omitted). To establish an age discrimination claim under the ADEA, “[a] plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for' cause of the challenged employer decision.” Moss, 610 F.3d at 922 (quoting Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009)).

         Defendants do not dispute that plaintiff is able to make a prima facie case of discrimination, and this court will therefore consider the issue of whether their “legitimate, nondiscriminatory reason for the employment decision” is pretextual. Importantly, to prove that a reason given was pretext for discrimination, Samsel must submit evidence “both that the reason was false, and that discrimination was the real reason.” Holliday v. Commonwealth Brands, Inc., 483 Fed.Appx. 917, 921 (5th Cir. 2012) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). This court has previously quoted the job performance issues which, defendants contend, motivated plaintiff's firing, and it has likewise discussed the political factors which, plaintiff testified, played a role his removal as AD and coach.

         From reading plaintiff's brief, it appears that he strains to find any evidence of age-related animus in this case. When questioned regarding this issue at his deposition, plaintiff testified that:

Q: During these meetings, did Ms. Killough ever say that she was letting you go because of your age?
A. Not in those exact words, no.
Q. Did she use any other words that would suggest that your age was the reason?
A. I think the not being able to relate to some of the younger coaches was where that was implied. And also, you know, if you look at who she replaced me with. They're all young, inexperienced guys that had no experience doing what they do at a school.

         [Plaintiff's depo. at 180]. It appears that this is, essentially, plaintiff's primary “evidence” of age discrimination in this case. Once again, however, plaintiff must create fact issues regarding whether age was the “but for” cause of his termination, and this court has previously noted the many political factors which he himself cited as contributing to his termination, which had nothing to do with his age.

         Plaintiff cites Killough's alleged concerns about his working with “younger” coaches as supporting his termination, but this court does not believe that this constitutes proof of age discrimination at all. Indeed, even accepting plaintiff's (rather self-serving) interpretation of Killough's beliefs as accurate, an ability to “relate to” and work well with younger employees does not fit within the quite narrow scope of compensable age-based animus, as established by U.S. Supreme Court precedent. Indeed, in Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701 (1993) the Supreme Court emphasized that the ADEA was enacted in reaction to stereotypical beliefs among some employers regarding the notion that an individual's competence and work performance decline with age. Specifically, the Supreme Court wrote that:

It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age. As we explained in EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), Congress' promulgation of the ADEA was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes.

Hazen Paper, 507 U.S. at 610, 113 S.Ct. 1701.

         The Supreme Court thus emphasized that the ADEA was enacted to combat employment decisions made on the basis of certain specific stereotypical views regarding older workers. The Court hastened to add, however, that other factors which are merely “correlated” with age, such as pension status, may not serve as the basis for an ADEA claim, writing that:

When the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is.

Id. at 611, 113 S.Ct. 1701. It is not clear to this court that an inability to work effectively with younger workers is even “correlated” with age; it could just as easily be argued that age gives one perspective regarding the need to work well with individuals of all ages.

         Even assuming for the sake of argument that there is a correlation between advancing age and an inability to deal effectively with younger workers, then this clearly does not fall within the rather narrow scope of compensable age-based animus, as set forth in Hazen Paper. It strikes this court that, in a head football coach, an inability to relate to, and work well with, younger assistant coaches is simply a leadership defect which constitutes an entirely proper basis for an employer to wish to fire him. This court certainly does not believe that it constitutes a basis for the head coach to claim a defense to termination under the ADEA. In this case, plaintiff's reference to “younger” assistant coaches may include Toungett and Gaspard, [2] and both of these coaches made it clear that they informed Killough of serious issues with the state of the football program, not simply that plaintiff did not “relate well” to them. In the court's view, plaintiff should not be rewarded for these alleged deficiencies even assuming that the coaches who reported them happened to be younger. Once again, plaintiff suggested in his deposition that Toungett fabricated accusations against him in order to take his job. Even assuming that this is true, however, it nevertheless weakens plaintiff's ADEA claims, since a genuine, yet mistaken, belief on Killough's part that plaintiff was showing poor leadership and fostering dissension among his assistant coaches, young or old, may not serve as the basis for an ADEA claim.

         Thus, even if plaintiff's testimony regarding Killough's reasons for firing him are correct, this court does not regard them as proof of age-based animus on her part. This court also notes that the timing of the events in this case, as described by plaintiff, casts further doubt upon his claims. In so stating, this court emphasizes that plaintiff testified that his initial meetings with Killough as principal were quite positive ones. In his brief, for example, plaintiff states that:

Defendant Killough had two (2) early meetings with Samsel, one in November, and the second in December. At the November meeting, Defendant Killough praised Samsel's performance and stated she knew how important athletic teams were. Defendant Killough assured Samsel she would make no changes in the way he operated the athletic program and praised his success. At the December meeting, Defendant Killough again praised Samsel's accomplishments.

         [Plaintiff's brief at 2-3]. Plaintiff appears to assert that “something happened” to sour Killough's views towards him between the December meeting and his subsequent firing in mid-January. What exactly that might be appears to depend upon which of his claims plaintiff is advancing at a particular time, but, in the ADEA section of his brief, he contends that it was because Killough learned that he wasn't working well with younger coaches. Under this theory, Killough would have decided to fire plaintiff in late December and early January, and yet plaintiff himself testified that he, and many others in the community, believed that his days were numbered after his friend Brigance was removed as principal. That was, of course, even before Killough was hired as principal.

         There is thus a clear internal inconsistency between plaintiff's many theories regarding why he was fired. At this juncture, this court must consider the facts in the light most favorable to plaintiff, but the coherence of his disparate claims greatly suffers when he advances one theory of his termination in one section of his deposition or brief, and then proceeds to an entirely inconsistent one in another. Plaintiff's age discrimination claims are also competing, in a causation sense, with his First Amendment retaliation claims, discussed below, in which he alleges that certain statements he made regarding the running of the football team and regarding school-related matters led to his termination as well. There is, in this court's view, simply not enough oxygen in the room for plaintiff's ADEA claims to survive alongside the many other reasons he himself cites as motivating his termination, particularly under the “but for” causation standard applicable to his age discrimination claims.

         In arguing that fact issues exist in this regard, plaintiff relies heavily upon a tape recording of the January 13, 2014 meeting between Killough and himself which preceded his removal as AD, which, he argues, establishes that defendants' stated reasons for firing him are pretextual. As discussed below, this court agrees with plaintiff that the recording may serve as evidence of pretext, but not for age discrimination. In his brief, plaintiff describes a portion of this tape, which occurs at the end of the meeting and which includes statements from both Killough and assistant principal Mike Murphy, as follows:

Defendant Killough obviously forgot to turn off the tape-recorder when Samsel left the meeting, and the conversation continued as follows:
MR. MURPHY: That was a great Oscar you just earned.
MS. KILLOUGH: It went a lot smoother than I thought.
MR. MURPHY: It did but he almost cried about four times. He was seething. You couldn't see his seat on the side. He was seething. That's a good word to use. It was the best we could expect under the circumstances and the parameters that Kuykendall put you in.
MR. MURPHY: When you told him about that, he was holding it in, Ms. Killough. Had you been a little nastier, he might have blown, but you outfoxed him on that. He was holding it in. I could see gritting the teeth, the body language.
I was just waiting for him to unleash. I kept having my radio, that may have been too obvious.
MS. KILLOUGH: There were a couple of times I don't think I got it recorded all the way because ...

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