United States District Court, N.D. Mississippi, Oxford Division
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE
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.
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.
Does plaintiff have any federal claims arising out of his
termination as athletic director and football coach?
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
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
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
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. 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
Q. All you heard. When did those rumors start?
A. Right after Brigance was removed.
[Samsel depo. at 61-62].
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
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].
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.
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
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
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.
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
depo. at 54].
own deposition, Toungett acknowledged that he did make
negative remarks about the state of the football program to
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.
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.
depo. at 18].
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
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
deposition, plaintiff offered yet another instance of local
politics which, he believes, factored in his termination,
namely jealously between different parts of Desoto County.
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.
2nd depo. at 286].
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
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
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
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.
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
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.
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.
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
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.
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
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
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.
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,
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.
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.
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.
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
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.
MS. KILLOUGH: Right.
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 ...