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Taylor-Travis v. Jackson State University

United States District Court, S.D. Mississippi, Northern Division

December 22, 2017




         BEFORE THIS COURT are the following post-trial motions: Jackson State University's Joint Motion for Judgment as a Matter of Law [Docket no. 67] [1]; 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].

         This 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.


         This lawsuit has taken many twists and turns[2] 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 matter.

         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.[3], and Title IX of the Education Amendments, Title 20 U.S.C. § 168');">681, et seq.[4] 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 the press.

         Since 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[5]. 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. § 1367.[6]


         Coach 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.

         In the 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.

         After 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, 000.00.[7]

         This 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].

         On August 29, 2014, JSU filed its misnamed Joint Motion for Judgment as a Matter of Law. [Docket no. 67][8]. 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].

         On 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].

         On 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. 74].


         This 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. 3-10].


         a. Joint Motion for Judgment as a Matter of Law (Renewed) or, In the Alternative, for a New Trial or a Remittitur [Docket no. 67]

         In its 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.

         JSU 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.

         Finally, 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.

         i. Standard of Review

         JSU submits its motion for a new trial under the authority of Rule 50(b)[9] 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.

         JSU also campaigns that Rule 59(a)[10] 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).

         ii. Waiver of Issues

         At the 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[11] and the Local Rules of Civil Procedure for the Southern District of Mississippi Rule 16(j)[12]. 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. 2010).

         The 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*].

         As an 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.

         iii. Breach of Contract

         To 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) (Miss.Ct.App.2004)).

         A. Existence of a Valid and Binding Contract

         Both 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.

         B. Breach

         Coach 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.

         Her 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.

         JSU, in 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 points.

         To 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.

         Further, 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].

         JSU 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.[13]

         The 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.

         JSU 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].

         The 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 Cir. 2007).

         This 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.

         In the 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.

         This 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.

         Next is 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.

         Then, 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 team.

         In sum, 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.

         iv. Bench Trial on Breach of Contract Claim

         JSU 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[14]; 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[15] (hereinafter referred to as “MTCA”).

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.

         JSU 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.[16]

         A 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.

         This 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 in contract.

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.

         JSU 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[17]; that JSU “dispatched [an] audit [of] the Women's Basketball Program … for the clear purpose of terminating [her contract]”[18]; and that the reasons provided for terminating Coach Taylor's employment contract “were simply [JSU's] attempt to divert attention from [its] wrongful actions.”[19] Thus, says JSU, Coach Taylor's breach of contract claim was really a tortious breach of contract claim in other clothing.

         This 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[20]. 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.

         v. Breach of Contract Jury Instruction

         JSU 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.

         Moreover, 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 ...

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