United States District Court, S.D. Mississippi, Northern Division
ORDER REGARDING POST-TRIAL MOTIONS
T. WINGATE UNITED STATES DISTRICT COURT JUDGE
THIS COURT are the following post-trial motions: Jackson
State University's Joint Motion for Judgment as a Matter
of Law [Docket no. 67] ; Denise
Taylor-Travis's Motion for New Trial [Docket no.
70]; and Jackson State University's Motion to
Stay Proceedings Regarding Plaintiff's Bill of Costs
[Docket no. 74].
court has reviewed the submissions of the parties, arguments
of counsel, and the relevant jurisprudence. As a result, this
court is persuaded that Jackson State University's Joint
Motion for Judgment as a Matter of Law [Docket no.
67] is due to be DENIED. This court is further
persuaded that Denise Taylor-Travis's Motion for New
Trial [Docket no. 70] is due to be DENIED.
Finally, this court is persuaded that Jackson State
University's Motion to Stay Proceedings Regarding
Plaintiff's Bill of Costs [Docket no.
74] is MOOT and due to be DENIED. The reasoning of
this court is set out below.
lawsuit has taken many twists and turns on its road to
resolution. This court is thoroughly familiar with the facts
and the procedural history of this matter. That does not
mean, however, that this court will not discuss what it has
already discussed in previous orders it has issued in this
court earlier held that it possesses federal question
subject-matter jurisdiction over this litigation.
See [Docket no. 64');">64, attached as an exhibit to this
Order]. The plaintiff, Denise Taylor-Travis (hereinafter
referred to as “Coach Taylor”) filed this lawsuit
alleging that her previous employer, defendant Jackson State
University (hereinafter referred to as “JSU”),
had violated her rights by discriminating against her in
violation of Title VII of the Civil Rights Act of 1964');">64, Title
42 U.S.C. § 2000e, et seq., and Title IX of
the Education Amendments, Title 20 U.S.C. § 168');">681, et
seq. Coach Taylor also alleged under state law
that JSU had breached her contract and the implied covenant
of good faith and fair dealing. Finally, Coach Taylor
alleged, also under state law, that JSU had invaded her
privacy when it released allegedly confidential records to
Coach Taylor alleges violations of her civil rights under the
Civil Rights Act, a federal enactment, this court has federal
question subject matter jurisdiction under the authority of
Title 28 U.S.C. § 1331. This court also finds that it
possesses supplemental jurisdiction over Coach Taylor's
state law claims by the authority of Title 28 U.S.C. §
Taylor filed her complaint on January 24, 2012. [Docket no.
1]. JSU filed its Answer on March 15, 2012. [Docket no. 5].
On October 30, 2013, this court commenced a jury trial on
Coach Taylor claims for: retaliation under Title VII;
retaliation under Title IX; breach of contract; and breach of
the implied covenant of good faith and fair dealing.
pretrial order, the parties stipulated that the jury would
determine liability on the federal claims only, and the court
would rule on the invasion of privacy claim. The parties also
stipulated that the court later would determine whether the
remaining state law claims would be submitted to the jury or
be decided by this court at a subsequent date. [Docket no.
54]. This court thereafter, without objection, ruled that it
would submit all of Coach Taylor's claims to the jury
with the exception of the invasion of privacy claim.
sixteen (16) days of trial, the jury returned a verdict in
this matter. The jury found, based on the evidence presented
at trial, that JSU had not terminated Coach Taylor because of
her gender; nor had JSU terminated Coach Taylor in
retaliation for engaging in protected activity under Title
VII or Title IX. The jury, however, determined that JSU had
breached Coach Taylor's employment contract and the
implied covenant of good faith and fair dealing. As a result
of that finding, the jury awarded Coach Taylor $182,
court subsequently decided the invasion of privacy claim in
favor of Coach Taylor. [Docket no. 64');">64]. In so doing, this
court awarded Coach Taylor $200, 000.00 in compensatory
damages, but declined awarding pecuniary damages. [Docket no.
64');">64, P. 20]. This court entered a Judgment on Jury and Bench
Verdict on August 1, 2014. [Docket no. 65].
August 29, 2014, JSU filed its misnamed Joint Motion for
Judgment as a Matter of Law. [Docket no.
67]. Contemporaneously, JSU filed its
Memorandum in Support. [Docket no. 68');">68]. Coach Taylor filed
her response in opposition on September 15, 2014. [Docket no.
75]. On September 25, 2014, JSU filed its reply to the
response filed by Coach Taylor. [Docket no. 81].
August 29, 2014, Coach Taylor filed her Motion for New Trial
without a supporting memorandum brief. [Docket no.
70]. On September 4, 2014, JSU filed its response in
opposition to Coach Taylor's motion for a new trial.
[Docket no. 71]. Coach Taylor then filed her reply to
JSU's response on September 15, 2014. [Docket no. 77].
August 29, 2014, Coach Taylor filed her bill of costs in this
matter. [Docket no. 69]. JSU objected to the bill of costs on
September 4, 2014 without a supporting memorandum brief.
[Docket no. 72]. On the next day, September 5, 2014, JSU
filed its Motion to Stay Proceedings Regarding
Plaintiff's Bill of Costs. [Docket no.
court on an earlier day set out the facts of this lawsuit as
found by this court and the jury during the joint jury and
bench trial. [Docket no. 64');">64]. Therefore, this court adopts
the recitation of the statement of facts from this
court's order dated August 1, 2014. [Docket no. 64');">64, PP.
Joint Motion for Judgment as a Matter of Law (Renewed) or, In
the Alternative, for a New Trial or a Remittitur
[Docket no. 67]
Joint Motion for Judgment as a Matter of Law (Renewed) or, In
the Alternative, for a New Trial or a Remittitur
[Docket no. 67], JSU asks this court to set
aside the jury verdict against it. The crux of JSU's
arguments regarding the breach of contract award are
threefold: that Coach Taylor failed to present evidence by
which a jury reasonably could have found a breach of contract
claim in her favor; that this court should have heard the
breach of contract claim as a bench trial because Coach
Taylor alleged a tortious breach of contract claim, not a
simple breach of contract claim; and that the jury
instructions that this court denied should have been granted.
also argues that this court erred in ruling that JSU was
liable for invasion of privacy because Coach Taylor failed to
make a prima facie case of invasion of privacy and
that Coach Taylor failed to present competent evidence of her
damages for invasion of privacy.
JSU argues that the following alleged errors combined to
preclude it from receiving a fair trial: the court's
examination of witnesses; and Coach Taylor's references
and arguments about JSU's refusal to arbitrate.
Standard of Review
submits its motion for a new trial under the authority of
Rule 50(b) of the Federal Rules of Civil Procedure.
Rule 50(b) allows a party to renew a previously-raised motion
for judgment as a matter of law that the court denied. The
party, within 28 days of the jury verdict or the bench
opinion, may file its renewed motion for judgment as a matter
of law. In the lawsuit sub judice, this court issued
the final judgment based on both the jury and bench trial
verdicts on August 1, 2014. JSU filed its Joint Motion for
Judgment as a Matter of Law on August 29, 2014, exactly 28
days after this court had issued its judgment.
also campaigns that Rule 59(a) of the Federal Rules of Civil
Procedure provides procedural support for its motion for a
new trial. The standard under Rule 59 is:
A motion for new trial under Rule 59(a) is an extraordinary
remedy that should be used sparingly. Rule 59(a) provides,
specifically, that the district court may grant a new jury
trial “for any reason for which a new trial has
heretofore been granted in an action at law in federal
court.” Although Rule 59(a) does not delineate the
precise grounds for granting a new trial, the Fifth Circuit
has held that Rule 59(a) allows the district court to grant a
new trial if it “finds the verdict is against the
weight of the evidence, the damages awarded are excessive,
the trial was unfair, or prejudicial error was committed in
its course.” Still, the decision whether to grant a new
trial under Rule 59(a) is left to the sound discretion of the
trial judge, and the court's authority is broad.
Howard v. Offshore Liftboats, LLC, 2016 WL 3536799,
at *4 (E.D. La. June 28, 2016).
Waiver of Issues
pretrial conference in this matter, the parties submitted a
Pretrial Order, which they had signed in accordance with Rule
16(e) of the Federal Rules of Civil Procedure and the Local
Rules of Civil Procedure for the Southern District of
Mississippi Rule 16(j). The Fifth Circuit recognizes that
the final pretrial order governs the manner of the
proceedings at trial.
It is a well-settled rule that a joint pretrial order signed
by both parties supersedes all pleadings and governs the
issues and evidence to be presented at trial.”
Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188,
206 (5th Cir.1998) (quoting Branch- Hines v. Hebert,
939 F.2d 1311, 1319 (5th Cir.1991)). Claims, issues, and
evidence are narrowed by the pretrial order, thereby focusing
and expediting the trial. Elvis, 141 F.3d at 206
(claims not preserved in a joint pretrial order were waived);
Branch-Hines, 939 F.2d at 1319 (the pretrial order
asserted the plaintiff's full range of damages). If a
claim or issue is omitted from the final pretrial order, it
may be waived, even if it appeared in the complaint.
Elvis, 141 F.3d at 206.
Martin v. Lee, 378 Fed.Appx. 393, 395 (5th Cir.
parties' pretrial order that they prepared and signed was
submitted to this court on October 16, 2013: signed by this
court on October 23, 2013: and entered on the record on
December 6, 2013. [Docket no. 54]. In the pretrial order the
parties submitted to this court, the parties agreed that:
4. The following claims have been filed by the Plaintiff:
a. Plaintiff asserts claims for violation of Title VII - Sex
Discrimination/Retaliation and violation of Title IX of the
Education Amendments of 1972, 20 U.S.C. § 168');">681, et seq.
- Sex Discrimination/Retaliation, Breach of
Contract, Breach of Implied Covenant of Good Faith and
Fair Dealing and Invasion of Privacy.
[Docket no. 54, P. 2, ¶ 4, *RESTRICTED*].
initial matter, this court finds that several of JSU's
issues that it raised in its Joint Motion for Judgment as a
Matter of Law [Docket no. 67] were waived by
the Pretrial Order dated October 28, 2013. This court has
thoroughly reviewed the pretrial order and finds that JSU did
not assert that Coach Taylor had claimed a tortuous breach of
contract cause of action in her complaint. Moreover, this
court finds that JSU did not assert that Coach Taylor was a
public figure, a disputed fact that would influence the
factual determination of the ultimate trier of fact in this
matter. This court is persuaded that it need not reach the
issues raised by JSU as JSU has waived these issues in the
pretrial order: however, this court will address all of
JSU's contentions below.
Breach of Contract
establish a breach of contract under Mississippi law, the
plaintiff must show: “(1) the existence of a valid and
binding contract; (2) breach of the contract by the
defendant; and (3) money damages suffered by the
plaintiff.” Guinn v. Wilkerson, 963 So.2d 555,
558 (Miss. Ct. ApP. 2006)(Quoting Favre Prop. Mgmt., LLC
v. Cinque Bambini, 863 So.2d 1037, 1044(¶ 18)
Existence of a Valid and Binding Contract
parties point to a contract between them, a contract each
contends was valid and binding under Mississippi law. The two
parties, each capable of entering a contract, negotiated and
formed a contract in 2001, which was renewed on July 1, 2010,
with each committed to complete certain obligations. Under
this contract, Coach Taylor was to perform as the head coach
for JSU's female basketball team, while JSU was to
provide support for Coach Taylor and pay her an annual
salary. The contract at issue here covered the period of July
1, 2010, through June 30, 2013. JSU terminated the contract
in June, 2011.
Taylor contends that JSU, without just cause, breached this
contract, to wit, by terminating her contract when she had
done nothing wrong, or alternatively, other coaches had acted
the same and were not reprimanded for doing so; a fact which
Coach Taylor says is further proof that she was doing nothing
wrong. At trial, Coach Taylor called a number of witnesses on
this claim and also offered her own testimony.
proof of breach, summarized, provided as follows: that the
male football coaches utilized their expenses the same way
that she had; and that she had been a kind and caring coach
for the student athletes under her care.
response, alleges that it did not breach the valid and
binding employment contract it had with Coach Taylor.
According to JSU, it had a valid “for cause”
reason to terminate the contract early: Coach Taylor, says
JSU, was terminated for misappropriations of funds and,
additionally, for mistreatment of students. JSU claims that
at trial Coach Taylor did not refute the evidence on these
JSU's volley, Coach Taylor fires back that at trial she
had presented overwhelming evidence that other coaches had
committed the same acts of which she was accused and were not
terminated; therefore, she argues, JSU's reasons for
terminating her for such acts must be pre-textual. See
Dodge v. Hertz Co. 124 Fed.App'x 242 (5th
Cir. 2005)(Citing Wallace v. Methodist Hosp. Sys.,
271 F.3d 212 (5th Cir.2001)). Coach Taylor showed at trial
that prior to the time period leading up to her termination,
she had never been warned that any such acts were illegal,
either orally or by any written directive; nor had she been
administratively challenged as to her method of recording
funds and accounting for same.
Coach Taylor asserts that at trial she presented evidence
which refuted the abuse allegations of the students; her
evidence, she says, showed her to be a caring and thoughtful
coach. See [Docket no. 64');">64].
cites Hoffman v. Board of Trustees, 567 So.2d 838
(Miss. 1990), in an effort to negate Coach Taylor's
argument on pretext, an argument which relies upon
“comparisons.” Hoffman was the Vocational
Director for East Mississippi Junior College (hereinafter
referred to as “EMJC”), from 1974 until his
termination on September 24, 1987. EMJC renewed Hoffman's
employment contract as recently as June 26, 1987, by
extending his contract for one (1) year. After Hoffman's
contract had been renewed, James B. Moore became the new
President of EMJC, starting on September 16, 1987. When Moore
commenced work in his new office, employees of EMJC notified
him about Hoffman's deficiencies as Vocational Director.
Moore attempted to reassign Hoffman, but the other employees
resisted Hoffman's transfer to their departments. Moore
subsequently learned that Hoffman was inappropriately
handling college funds. As a result, Moore terminated
Hoffman's employment and contract on September 24, 1987
citing various causes for his termination.
Mississippi Supreme Court, which affirmed the dismissal of
Hoffman's lawsuit by the Chancery Court of Kemper County,
Mississippi, explained its decision as follows:
It is true that Hoffman was a long-time employee of EMJC and
that as recently as June 26, 1987, the Board of Trustees had
tendered him a new contract covering the year ending June 30,
1988. On the other hand, the record reflects that his
performance had been sub-standard for quite some time. The
fact that a school district tolerates sub-standard
performance under circumstances such as these hardly
constitutes a waiver of the district's prerogative to
rely on just cause when it exists and terminate an employment
contract. The question is whether Hoffman is in substantial
breach of material features of his contract, not how long
this has been so, nor whether his employer has failed to act
upon similar past deficiencies.
Hoffman, at 842. This court notes that
Hoffman did not involve, as the lawsuit sub
judice does, comparing the malfeasance of one employee
with another. To the contrary, Hoffman involved an
employer who did nothing about one employee's misbehavior
for years, and then finally acted upon that employee's
own misdeeds when a new president began his own employment.
Thus, Hoffman stands for the proposition that an
employer may terminate its employee for cause even where it
had ignored that employee's malfeasance for years. This
court is not persuaded by the arguments of JSU that
Hoffman will provide it relief in the form of a
judgment as a matter of law.
further campaigns that “all that matters is whether
Jackson State had a good faith belief that Taylor had
violated her contractual obligation to promote student
well-being.” [Docket no. 68');">68, P. 6]. JSU cites a New
Jersey Supreme Court case, Cf. Silvestri v. Optus
Software, Inc., 814 A.2d 602 (N.J. 2003), which
interpreted New Jersey's employment contract law in
finding that “such contracts generally are governed by
a subjective standard.” [Docket no. 68');">68, P. 6].
Fifth Circuit, however, has spoken on this same matter:
An employer's subjective reason for not selecting a
candidate, such as a subjective assessment of the
candidate's performance in an interview, may serve as a
legitimate, nondiscriminatory reason for the candidate's
non-selection. (recognizing that McDonnell Douglas
does not preclude an employer from relying on subjective
reasons for its personnel decisions); see also Chapman v.
AI Transport, 229 F.3d 1012, 1034 (11th Cir.2000)
(“It is inconceivable that Congress intended
antidiscrimination statutes to deprive an employer of the
ability to rely on important criteria in its employment
decisions merely because those criteria are only capable of
subjective evaluation.”). Such a reason will satisfy
the employer's burden of production, however, only if the
employer articulates a clear and reasonably specific basis
for its subjective assessment. See Burdine, 450 U.S.
at 258, 101 S.Ct. 1089; Patrick, 394 F.3d at 316-17;
see also Chapman, 229 F.3d at 1034 (“A
subjective reason is a legally sufficient, legitimate,
nondiscriminatory reason if the defendant articulates a clear
and reasonably specific factual basis upon which it based its
subjective opinion.”); EEOC v. Target Corp.,
460 F.3d 946, 957-58 (7th Cir.2006) (agreeing with the
Eleventh Circuit that “an employer must articulate
reasonably specific facts that explain how it formed its
[subjective] opinion of the applicant in order to meet its
burden under Burdine”).
Alvarado v. Texas Rangers, 492 F.3d 605, 616-17 (5th
court is persuaded then that an employer, JSU here, may
articulate a clear and reasonably subjective basis for its
termination of an employee which would not be discriminatory.
While this standard is not materially different than that
cited by JSU, this court felt it important to cite to binding
precedent within the Fifth Circuit.
lawsuit at bar, JSU presented evidence of its alleged reasons
for terminating Coach Taylor's employment contract: Coach
Taylor allegedly violated JSU's reimbursement policy;
Coach Taylor allegedly misappropriated funds; and allegedly
violated JSU's policy by sexual gender stereotyping,
verbal abuse, and emotional abuse of the student athletes for
whom she was responsible.
court is not persuaded, though, that JSU is entitled to
judgment as a matter of law or to a new trial based on these
grounds. Take the reimbursement policy matter. JSU said that
Coach Taylor used the team's expense account for her
personal expenses, an action which it contends was unlawful
and in violation of her employment contract. Coach Taylor
responded that all the coaches acted the same way toward the
expense accounts of their respective teams and that no one
had ever been reprimanded orally or in writing, nor
terminated for doing so, nor advised by JSU that such conduct
allegedly was unlawful. The jury, which attentively heard all
of the evidence, obviously sided with Coach Taylor.
the misappropriation-of-funds basis for terminating Coach
Taylor. JSU contended again at trial that Coach Taylor
utilized the funds JSU had designated for team expenditures
for her personal use, again, an action which JSU contends was
unlawful and in violation of her employment contract. Coach
Taylor's proof purported to show, once more, that
JSU's administrative body had never taken action against
any other coach for acting the same way. Similarly, Coach
Taylor purported to show at trial that she had not been the
recipient of prior warnings, oral or written, relative to her
conduct in this manner. The jury accepted Coach Taylor's
position; otherwise, on the court's instructions to the
jury, that body of fact finders would have found for JSU.
there are the sexual harassment claims not even mentioned by
JSU in its closing arguments. JSU contended that Coach Taylor
had discriminated against one of her student athletes because
that student was a lesbian. For proof, JSU presented that
student athlete who testified that Coach Taylor had inquired
of her teammates about that student's sexual orientation
and had inquired of that student directly about a domestic
violence incident in which that student had been involved.
Coach Taylor responded by stating that her inquiries were
directed at finding out whether that student athlete was in
an abusive relationship, regardless of the sexual orientation
of that relationship. JSU also contended that Coach Taylor
had inquired about a different student athlete who was
“teasing” two (2) of her teammates. Coach Taylor
contended that her inquiry was solely to stop a potential
love triangle, a circumstance that could cause dissention in
the jury could have found, as indeed it did, based on the
evidence presented, that JSU had intentionally breached its
contract with Coach Taylor by terminating her contract early
and without good cause to do so.
Bench Trial on Breach of Contract Claim
next argues that it is due a new trial because this court
should not have submitted Coach Taylor's breach of
contract claim to the jury; instead, says JSU, this court
should have heard the breach of contract claims as a bench
trial under the authority of the Mississippi Tort Claims
Act (hereinafter referred to as
Although the MTCA does not apply to “pure contract
actions, ” it does apply to claims for tortious breach
of contract: “The clear intent of the [L]egislature in
enacting [the MTCA] was to immunize the State and its
political subdivisions from any tortious conduct, including
tortious breach of ... contract.”
Papagolos v. Lafayette Cty. Sch. Dist., 972
F.Supp.2d 912, 932 (N.D. Miss. 2013), amended on
reconsideration (Nov. 13, 2013)(Citing City of
Grenada v. Whitten Aviation, Inc., 755 So.2d 1208, 1213
(Miss.Ct.App.1999)). “Tortious breach of contract
requires, in addition to a breach of contract, some
intentional wrong, insult, abuse, or negligence so gross as
to constitute an independent tort.” Morris v. CCA
of Tennessee, LLC, No. 3:15-CV-00163-MPM-RP. 2017 WL
2125829, at *2 (N.D. Miss. May 16, 2017)(Citing Southern
Natural Gas Co. v. Fritz, 523 So.2d 12, 19-20 (Miss.
1987)). As this court has discussed supra, JSU
waived this argument by not including it in the pretrial
order that they assented to and signed. This court will
address JSU's contention nonetheless.
argues that “[w]hat type of breach of contract claim is
at issue is determined by what a party has alleged and
argued, not by what the party represents in an effort to
avoid MTCA's bench trial requirement.” See
Whiting v. U. of Southern Miss., 62 So.3d 907, 915
(Miss. 2011). The Whiting opinion is relatively
sparse when it discusses why the court found that the
plaintiff's claims were a tortious breach of contract
instead of simple breach of contract.
review of the facts of Whiting shows that Dr.
Melissa Whiting alleged that while she was a tenure track
assistant professor at the University of Southern
Mississippi, the Board of Trustees renewed her contract six
(6) times. Dr. Whiting received, as all professors did, a
Faculty Handbook which laid out the procedures for obtaining
tenure. One of the major factors the Board of Trustees would
consider in granting tenure was the annual evaluations of the
professor. Dr. Whiting received five (5) annual evaluations
which reflected she received top marks in all categories.
When Dr. Whiting applied for tenure, her department head
allegedly gave her bad advice, isolated her from the rest of
the faculty in her department by moving her to a different
building, and circulated rumors that she had committed
academic fraud, all in a “quest to scuttle [her]
career.” After a hearing on her application for tenure,
the committee reviewing Dr. Whiting's application
recommended that she be promoted to associate professor, but
denied her tenure and told her to wait for one (1) more year
to apply again. As earlier stated, the Mississippi Supreme
Court dealt with this case as a tortious breach of contract,
but without much guidance for its approach.
court finds Kennedy v. Jefferson Cty., Miss. ex rel. Bd.
of Sup'rs provides some guidance. In
Kennedy, the plaintiff worked as a hospital
administrator for one hospital, and as a consultant for
another hospital. During the course of his duties at his
hospital administrator job, he terminated a contract with a
vendor, who happened to be the son-in-law of a councilman for
the Jefferson County Mississippi Board of Supervisors.
Shortly thereafter, the Hospital Board terminated the
plaintiff's employment contract without notice. The
hospital produced evidence that it had terminated the
plaintiff for insubordination.
[The plaintiff] sent a notice of claim because he also made
tort claims in his complaint. That he was terminated without
cause or notice speaks directly to the breach element, which
is common to both claims. The omission of the goal and the
animus of Guice against Kennedy are insufficient to convert
this claim into a tortious one. Although these weigh in favor
of such a determination, [the Jefferson County Councilman]
had no direct ability to terminate Kennedy's contract,
and it is a legal issue as to whether the Hospital
Board's “goal” to terminate him was unlawful.
The Court finds that [the plaintiff's] claim sounds only
No. 5:13-CV-226-DCB-MTP. 2015 WL 4251070, at *12 (S.D.Miss.
July 13, 2015). To establish a tortious breach of contract
courts have generally required more evidence than the parties
have shown this court.
asserts that Coach Taylor alleged a tortious breach of
contract theory as shown by her pleadings: that JSU
“knowingly, willingly, and intentionally”
breached its employment contract with her; that JSU
“dispatched [an] audit [of] the Women's Basketball
Program … for the clear purpose of terminating [her
contract]”; and that the reasons provided for
terminating Coach Taylor's employment contract
“were simply [JSU's] attempt to divert attention
from [its] wrongful actions.” Thus, says JSU, Coach
Taylor's breach of contract claim was really a tortious
breach of contract claim in other clothing.
court is unpersuaded by JSU's arguments that Coach Taylor
alleged and pursued a tortious breach of contract cause of
action. The facts, as found by the jury, are that JSU
breached its contract with Coach Taylor. Coach Taylor
urges this court to find that, despite her allegation of
intentional and willful conduct to breach the contract, she
did not intend to pursue a claim for tortious breach of
contract. This court is persuaded to agree with Coach Taylor,
who never sought punitive damages in this lawsuit, which she
would have done had she been pursuing a tortious breach of
contract action. Accordingly, this court finds that JSU is
not due a new trial based on this court's submission of
the breach of contract claim to the jury.
Breach of Contract Jury Instruction
says that it was due a jury instruction on the breach of
contract claim that stated: “In deciding whether [JSU]
was justified in its decision to terminate [Coach Taylor],
you may not consider [Coach Taylor's] length of
employment or [JSU's] failure to discover [Coach
Taylor's] misconduct sooner. You also must not consider
whether [JSU] has tolerated similar misconduct by other
employees.” JSU relies on Hoffman v. Board of
Trustees, 567 So.2d 838 (Miss. 1990) as its basis for
the requested jury instruction. As discussed supra,
Hoffman stands for the proposition of law that an
employer may rely on an employee's own misconduct to
terminate that employee's employment, even where the
employer tolerates the misconduct for a period of time.
JSU's requested jury instruction does not encompass the
conduct contemplated by Hoffman.
the requested instruction is overbroad. As submitted, the
instruction invades the province of the jury by instructing
the jury that Coach Taylor had indulged sooner in misconduct
and further, that other employees similarly had behaved with
misconduct. The parties had not stipulated as to this twin
allegation of misconduct and ...