United States District Court, S.D. Mississippi, Southern Division
AVA R. COLEMAN PLAINTIFF
MISSISSIPPI DEPT. OF MARINE RESOURCES; JAMIE M. MILLER, Individually and as Executive Director/Agent; and JOHN/JANE DOES 1-2 DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR
GUIROLA, JR., CHIEF U.S. DISTRICT JUDGE.
THE COURT is the  Motion for Summary Judgment filed by
the remaining Defendant in this case, the Mississippi
Department of Marine Resources. Plaintiff Ava R. Coleman has
responded, and the MDMR has replied. After due consideration
of the submissions and the relevant law, it is the
Court's opinion that the MDMR has shown there is no
question of material fact for the jury. Accordingly, the
defendant's Motion is granted and Plaintiff's claims
Ava Coleman filed this lawsuit in the Circuit Court of
Harrison County, Mississippi, complaining of termination from
her long-time employment with the State of Mississippi. She
had been employed by the Department of Wildlife, Fisheries
and Parks (“DWFP”) as the Lyman Fish Hatchery
Manager for fifteen years when, in 2007, she was asked to
transfer to the Mississippi Department of Marine Resources
(“MDMR”). She was to remain the Hatchery Manager,
but she would be required to move from her on-site residence
at the Hatchery.
alleges that shortly after accepting the transfer, she began
experiencing harassment and hostilities from the MDMR Chief
of Staff, Joe Ziegler. She alleges during the next year,
Ziegler did not supply her with the assistance and supplies
she needed, locked her out of her office, placed an
unqualified person as her supervisor, and lodged
“bogus” disciplinary actions against her.
filed grievances concerning Ziegler's actions to the
Mississippi Employee Appeals Board. She alleges that an
informal recommendation was made that the MDMR find a
suitable position for her. After she returned to work and
waited for a resolution, she found that she needed to request
an extended medical leave to manage her feelings of
anxiousness and fearfulness. Her request was granted in May
2008. Slightly more than one year later, in June 2009,
Coleman returned to work. She was placed in a low-level,
non-managerial, non-supervisory job at the MDMR and moved
from her residence at the Hatchery. She then filed a
Workers' Compensation Claim for job-related emotional
distress, which resulted in a settlement in September 2014. A
few weeks later, Coleman was terminated by letter from MDMR
executive director Jamie Miller, effective October 9, 2014.
(Am. Compl. Ex. A, ECF No. 7). Coleman alleges she was
terminated for leaving the workplace without authorization.
Miller's letter does not specify a reason for her
termination, but informed Coleman that
[i]n accordance with the Mississippi Department of Marine
Resources Accountability and Reorganization Act (Senate Bill
No. 2579, effective April 17, 2014), the MDMR is exempt from
State Personnel Board rules, regulations, and procedures.
During this exemption, you do not have state service
protection, and may be terminated without cause or advanced
(Pl. Resp. Attach 2 to Ex. C, ECF No. 37-4).
First Amended Complaint contains nine Counts. (Notice of
Removal Ex. A 25-42, ECF No. 1-2). Count One is a Fourteenth
Amendment claim brought pursuant to 42 U.S.C. § 1983.
Count Two alleges violations of §§ 1983, 1985, and
1986. Counts Three through Six are state law claims of breach
of contract, interference with contract, and infliction of
emotional distress. The last three Counts allege employment
discrimination under Title VII, the Americans with
Disabilities Act, and the Age Discrimination in Employment
Act (Counts Seven, Eight and Nine).
in the case, the Court dismissed Coleman's claims against
Defendant Jamie Miller, the MDMR executive director, in his
individual and official capacity. (Mem. Op. & Order
Granting Mot. to Dismiss, ECF No. 13), Coleman v. Miss.
Dep't of Marine Res., No. 1:16cv289-LG-RHW, 2016 WL
5794772 (S.D.Miss. Oct. 4, 2016). Although given the
opportunity to amend her claims against Miller, Coleman did
not do so.
MDMR now moves for judgment as a matter of law on all of the
claims against it. Coleman has responded in opposition,
although she expressly conceded her Age Discrimination in
Employment Act claim. (Pl. Resp. Mem. 18, ECF No. 38). The
MDMR has replied in support of its Motion. The Court
addresses the arguments regarding the remaining claims below.
U.S.C. §§ 1983, 1985, and 1986
MDMR argues that Coleman may not bring a viable claim against
it pursuant to sections 1983, 1985 or 1986 because it is not
a “person” under those statutes. Bryant v.
Military Dep't of State of Miss. ex rel. Miss. Air Nat.
Guard, 381 F.Supp.2d 586, 592 (S.D.Miss. 2005),
aff'd sub nom. Bryant v. Military Dep't of
Miss., 597 F.3d 678 (5th Cir. 2010) (claims under
§§ 1983, 1985 and 1986 barred because these
statutes create rights solely against “persons”
and a state is not considered a “person” under
these statutes). Coleman argues that she has requested
injunctive relief, and she can bring a viable claim for
injunctive relief against a state official in his official
capacity under these statutes, citing Will v. Mich.
Dep't of State Police, 491 U.S. 58, 71, n. 10
there was a state official defendant in this lawsuit at one
time, the claims against him were dismissed, and Coleman
declined the opportunity to file amended claims against him.
Thus, only the State entity itself remains as a defendant.
The law is clear that the State is not a person for purposes
of §§ 1983, 1985 and 1986, and therefore
Coleman's claims against the MDMR pursuant to these
statutes will be dismissed.
Title VII claims encompass sex/gender discrimination, hostile
working environment and retaliation. In her Amended
Complaint, response to this Motion, and affidavit attached to
her response, Coleman refers to a charge of discrimination
she made to the Equal Employment Opportunity Commission. The
Court is unable to locate it, or any EEOC documentation, in
the record. “In order to file suit under Title VII, a
plaintiff first must file a charge with the EEOC within 180
days of the alleged discriminatory act. If and once the EEOC
issues a right-to-sue letter to the party who has filed the
EEOC charge, that party has 90 days to file a Title VII
action.” Price v. Choctaw Glove & Safety
Co., 459 F.3d 595, 598 (5th Cir. 2006). These time
periods act as statutes of limitation. Hood v. Sears
Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999). If
the employee files a Title VII action, the claims must have
been asserted in the formal charge of discrimination to the
EEOC, or be claims that could be reasonably expected to grow
out of the formal charge. Filer v. Donley, 690 F.3d
643, 647 (5th Cir. 2012). The MDMR does not challenge
Coleman's employment discrimination claims for failure to
exhaust her Title VII remedies, and therefore the Court will
assume for purposes of this Motion that the plaintiff's
charge was timely and included the grounds she has asserted
argues that she experienced sex discrimination at the time of
her termination because she was qualified to assume other
positions in the MDMR that “less experienced, less
qualified males” held. (Pl. Resp. Mem. 11-12, ECF No.
38). Essentially, a less experienced male should have been
terminated so that she could have his position. Also, she was
not offered the option of retirement while a male colleague,
terminated during the same period, was given that choice.
(Id. at 12).
the evidence offered to support Coleman's sex
discrimination claim is circumstantial rather than direct,
she must establish a claim of discrimination under the
McDonnell Douglas framework, and first make out a
prima facie case of discrimination. Okoye v. Univ. of
Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512-14 (5th
Cir. 2001); see also McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). This requires Coleman
to demonstrate that (1) she is a member of a protected group;
(2) she was qualified for the position at issue; (3) she was
discharged; and (4) after being discharged, her employer
replaced her with a person who is not a member of the
protected class, or those not members of the protected class
remained in similar positions. Buchanan v. CCA
Tallahatchie Cty. Corr. Facility, No.
4:16CV00200-SA-JMV, 2017 WL 875997, at *3 (N.D. Miss. Jan. 3,
2017), report and recommendation adopted, No.
4:16-CV-200-SA-JMV, 2017 WL 875852 (N.D. Miss. Mar. 3, 2017),
aff'd sub nom. Buchanan v. CCA/Tallahatchie Cty.
Corr. Facility, No. 17-60178, 2017 WL 3098177 (5th Cir.
July 20, 2017); Okoye, 245 F.3d at 512-14.
MDMR addresses only the fourth prima facie element, asserting
that Coleman's job duties were assumed by a sixty-eight
year old female, Ms. Ross. According to one of Coleman's
supervisors, Coleman had been assisted in her data collection
activities by Ross and others, and Ross was given the primary
responsibility for the data collection after Coleman was
terminated. (Def. Mot. Ex. 3, at 11-14, ECF No. 33-3).
Ross' duties are reassigned to other MDMR employees only
when Ross takes leave or a vacation day. (Id. at 12,