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Matory v. Hinds County Sheriff Victor Mason

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

December 10, 2018

CHERYL MATORY TOMECA BARNES PLAINTIFFS
v.
HINDS COUNTY SHERIFF VICTOR MASON, IN HIS INDIVIDUAL CAPACITY, AND HINDS COUNTY, MISSISSIPPI DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          TOM S. LEE UNITED STATES DISTRICT JUDGE.

         Defendants Hinds County Sheriff Victor Mason, in his individual capacity, and Hinds County, Mississippi, have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) as to pre-employment claims asserted by plaintiffs Cheryl Matory and Tomeca Barnes, and they have moved for summary judgment under Rule 56 as to the rest of plaintiffs' claims. Plaintiffs have responded in opposition to all three motions. The court, having considered the memoranda of authorities, together with attachments submitted by the parties, concludes that the motion for judgment on the pleadings as to claims based on pre-employment conduct should be granted and the motions for summary judgment as to both plaintiffs' remaining claims should be granted in part and denied in part, as set forth herein.

         Facts

         Beginning around 2014, Cheryl Matory, then a corporal and crime scene investigator with the City of Jackson Police Department (JPD), began working on Victor Mason's election campaign for sheriff of Hinds County. Matory had known Mason since high school and agreed to help with his campaign because she thought he would make a good sheriff. At some point during the campaign, Mason offered to hire Matory as his undersheriff in the event he was elected; she agreed. The two often discussed additional potential employees, and at Mason's request, Matory began working to recruit certain individuals to work for Mason if he was elected. Mason was especially interested in hiring Tomeca Barnes and told Matory to ask Barnes, who was also a corporal with JPD, to help with his election campaign. Barnes agreed. Mason subsequently promised he would hire her as head of the Sheriff's Department's Internal Affairs Division (IAD) if he was elected.

         Mason won the election for Hinds County sheriff in November 2015 and began finalizing his staff selections. Upon taking office on December 31, 2015, Mason, as promised, hired Matory as undersheriff and Barnes as head of the IAD. Matory asserts that throughout the campaign, Mason had tried to get her to help facilitate a sexual relationship between him and Barnes; she claims that he continued in this manner after he took office. According to Matory, after becoming sheriff, Mason regularly directed her to have Barnes come to his office. When on one occasion he threatened that she had better do so “or else, ” she asked what he meant by “or else”. He responded, “[Y]ou think I'm playing. I'll show you.” Matory asserts that after she told Mason she was not going to arrange for him to have sex with Barnes, Mason became angry and began to distance himself from her. Not long thereafter, her demoted her from undersheriff to crime scene investigator.

         For her part, Barnes claims that prior to Mason's taking office, she had several conversations with him, in person but mostly via text, in which he made what she believed were sexual overtures. She was able to subtly deflect his advances. She contends that after he became sheriff and she was hired as head of the IAD, she was often summoned to his office, ostensibly to report to him on her department's work; but according to Barnes, he never appeared interested in what she had to say and instead, just stared at her. She states that he made her feel so uncomfortable by the way he stared at her when she was summoned to his office that she did not want to be left alone with him. She asked that Matory be allowed to remain in his office during these meetings, but Mason refused. Like Matory, Barnes alleges that after she began to spurn Mason's unwanted advances toward her, she was demoted from head of IAD to patrol officer.

         According to plaintiffs, after Mason demoted Matory, he replaced her as undersheriff with Pete Luke, a white male; and he replaced Barnes with Keith Barnett, a black male. Several months later - and apparently after Matory filed a charge of discrimination with the EEOC and received a notice of right to sue - Matory was terminated. Barnes resigned in August 2017 while this action was pending.

         Plaintiffs' Causes of Action

         Both plaintiffs have asserted claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983 for sexual harassment, claiming they suffered quid pro quo sexual harassment as well as sexual harassment based on hostile work environment.[1] They have also sued under Title VII and § 1983 for gender discrimination. In addition, Matory has purported to sue for race discrimination under Title VII, § 1983 and § 1981, and for retaliation under Title VII. Both plaintiffs have also asserted state law claims for breach of contract/detrimental reliance. Defendants have moved for judgment on the pleadings or for summary judgment on all of these claims.

         Judgment on the Pleadings: Pre-Employment Sexual Harassment

         In their motion for judgment on the pleadings as to pre-employment claims, defendants point out that although Mason was elected sheriff on November 2, 2015, he was not sworn in as sheriff until December 31, 2015. They further note that many of plaintiffs' allegations relate to alleged acts of sexual harassment that occurred before Mason was even elected sheriff and others that occurred while he was sheriff-elect. They contend that, as a matter of law, neither Mason nor Hinds County may be held liable, under Title VII or under § 1983, based on conduct that predated Mason's tenure as sheriff.

         Rule 12(c) Standard:

         The standard for dismissal of a Rule 12(c) motion for judgment on the pleadings is the same as that for dismissal for failure to state a claim under Rule 12(b)(6). Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). In considering a Rule 12(b)(6) motion to dismiss, the court, liberally construing the complaint in the light most favorable to the plaintiff and taking as true all facts pled therein, must determine whether the complaint states a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

         Section 1983: With respect to plaintiffs' § 1983 claims, defendants maintain that Mason could not have been acting “under color of law” until he actually assumed the office of Hinds County Sheriff and that consequently, plaintiffs have no viable claim for sexual harassment under § 1983 based on actions Mason is alleged to have taken during his campaign or while sheriff-elect.

         “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of state law.” West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (citations and internal quotations omitted). See also Angel v. La Joya Indep. Sch. Dist., 717 Fed.Appx. 372, 376 (5th Cir. 2017) (“Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of state law.'”). Obviously, during the time that he was a mere candidate for office, Mason did not act under color of state law. Moreover, in the court's opinion, until he assumed office, Mason was not “clothed with the authority of state law” and hence did not act under color of state law. Accordingly, defendants are entitled to judgment on the pleadings as to plaintiffs' § 1983 claims to the extent those claims are based on actions which pre-date December 31, 2015. See Burrell v. City of Mattoon, 378 F.3d 642, 649 (7th Cir. 2004) (concluding that mayor-elect and city council members, “though duly elected and sworn, were not yet in office because they had not been inaugurated as required by City ordinance” and therefore “were not yet ‘state actors.'”); Carlos v. Santos, 123 F.3d 61, 65 (2d Cir. 1997) (holding that as defendant board member “had not yet even taken office” he “possessed no power by virtue of state law to misuse”); Griffith v. Girdler, No. CIV.A. 6: 07-442-DCR, 2009 WL 1956466, at *2 (E.D. Ky. July 8, 2009) (granting summary judgment on § 1983 claim on basis that the defendant was the mayor-elect, not mayor, at time of challenged action and thus was not acting under color of state law); cf. Brady v. Fort Bend Cty., 145 F.3d 691, 701 (5th Cir. 1998) (rejecting argument that sheriff-elect did not exercise final policymaking authority when delivering letters to plaintiffs advising he did not intend to rehire them as deputies, because once he assumed office, “he reaffirmed his intention not to rehire the Plaintiffs and gave effect to that intent by not rehiring the Plaintiffs. After [he] took office, he was a state actor wielding the policymaking authority described above with respect to filling available deputy positions in the sheriff's department.”) (emphasis added); Arredondo v. Flores, No. CIV. A. L-05-191, 2008 WL 4450311, at *14 (S.D. Tex. Sept. 30, 2008), aff'd, 347 Fed.Appx. 62 (5th Cir. 2009) (defendant sheriff “became a state actor wielding policymaking authority after taking office. By acting with such authority when he gave effect to his personnel decisions upon taking office, [he] ... acted under color of law.”).

         Title VII: Title VII protects employees from discrimination by their employers. “Determining whether a defendant is an ‘employer' under Title VII ... involves a two-step process. First, the defendant must fall within the statutory definition. Second, there must be an employment relationship between the plaintiff and the defendant.” Deal v. State Farm Cnty. Mut. Ins. Co., 5 F.3d 117, 118 n.2 (5th Cir. 1993). The Fifth Circuit has held that in Mississippi, the county sheriff, in his official capacity, and not the County or the sheriff in his individual capacity, is his deputies' employer under Title VII. See Oden v. Oktibbeha Cnty., 246 F.3d 458, 465 (5th Cir. 2001). Defendants contend that until Mason assumed office as sheriff on December 31, 2015, he could not have been plaintiff's employer for Title VII purposes, and that he could have had no employment relationship with plaintiffs until they became employed by the Sheriff's Department in January 2016.

         To the extent that plaintiffs attempt to assert a Title VII hostile work environment sexual harassment claim based on alleged harassment by Mason prior to his assuming the office of sheriff, their claim fails as a matter of law. There cannot have been a hostile work environment at a time when there was no employment relationship. However, citing Simmons v. Lyon, 746 F.2d 265, 270 (5th Cir. 1984), plaintiffs argue that they have stated a viable quid pro quo sexual harassment claim based on Mason's pre-employment actions. The court is unpersuaded. In Simmons, two plaintiffs (a mother and daughter) who had been employees of a defeated sheriff, sued the successor sheriff, Lyons, for gender discrimination under Title VII alleging that he failed to re-appoint them when his term commenced because one of them, the daughter, had rejected his sexual advances. The court concluded that the claim was actionable, notwithstanding that the alleged act of sexual harassment occurred before Lyons took office, because “the discriminatory employment violation based on sex or gender occurred when [he] failed to re-hire [the daughter] on or after [the date he took office] - allegedly because of her rejection of his sexual advances -, at which time Lyons was an employer within the definition of Title VII. 42 U.S.C. § 2000e(b).” Id. The court further observed that “Title VII's prohibitions against discriminatory employment practices do not apply only to an existing employment relationship but also to prospective employment relationships that do not eventuate because of the discriminatory conduct-as where an applicant for employment is denied employment for a prohibited discriminatory reason.” Id. (emphasis added).

         While there are similarities between the facts of this case and of Simmons, Simmons is materially distinguishable from the present case. Similar to Lyons, Mason allegedly made sexual advances to Barnes before he took office; and he allegedly at least intimated to Matory that she would not be hired if she failed to facilitate a sexual relationship between him and Barnes. However, in contrast to Simmons, plaintiffs herein do not contend that Mason failed to hire them because of any discriminatory conduct. On the contrary, he hired both of them. The challenged tangible employment action, i.e., plaintiffs' demotions, occurred well after they became employed, when Matory thereafter refused to help him have a sexual relationship with Barnes and when Barnes began to distance herself from him. In short, in this case, unlike Simmons, plaintiffs' quid pro quo claims are not based on a failure to hire and are necessarily based on post-employment, not pre-employment conduct by Sheriff Mason. Defendants' motion for judgment on the pleadings will therefore be granted.

         Summary Judgment Standard

         Defendants have moved for summary judgment on plaintiffs' remaining claims. Rule 56(a) provides that “[t]he court shall grant summary judgment if the movant shows that there is no dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). On a summary judgment motion, the moving party must initially “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party meets its burden, the burden shifts to the nonmovant, “who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists” and that summary judgment should not be granted. Norwegian Bulk Transport A/S v. Int'l Marine Terminals Partnership, 520 F.3d 409, 412 (5th Cir. 2008). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials in a pleading, and unsubstantiated assertions that a fact issue exists will not suffice. Celotex, 477 U.S. at 323. Instead, “the nonmoving party must set forth specific facts showing the existence of a ‘genuine' issue concerning every essential component of its case.” Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).

         In considering a motion for summary judgment, all reasonable inferences to be drawn from both the evidence and undisputed facts are to be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “If the record, viewed in this light, could not lead a rational trier of fact to find” for the nonmovant, then summary judgment is proper. Kelley v. Price-Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993) (citing Matsushita, 106 S.Ct. at 1351). On the other hand, if “the factfinder could reasonably find in [the nonmovant's] favor, then summary judgment is improper.” Id.

         Section 1981

         Barnes has purported to sue Hinds County and Sheriff Mason, in his individual and official capacities, for race discrimination in violation of § 1981. To the extent she has pled § 1981 as an independent cause of action against defendants and not under the remedial provisions of § 1983, her claim based on § 1981 must be dismissed. See Montgomery-Smith v. Louisiana Dep't of Health & Hosps., 299 F.Supp.3d 790, 805 (E.D. La. 2018) (citing Felton v. Polles, 315 F.3d 470, 482 (5th Cir. 2002), abrogation on other grounds recognized by Jackson v. Honeywell Intern., Inc., 601 Fed. App'x 280 (5th Cir. 2015), and explaining that “when a state employee seeks to hold an individual fellow state employee liable in damages for violation of § 1981 rights, such claim must also be pursued under the remedial provisions of § 1983.”).

         Title ...


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