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Avery v. The University of Mississippi

Court of Appeals of Mississippi

May 7, 2019

ANGELA A. AVERY APPELLANT
v.
THE UNIVERSITY OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 02/07/2018

          LAFAYETTE COUNTY CIRCUIT COURT HON. JAMES McCLURE III JUDGE

          ATTORNEY FOR APPELLANT: GOODLOE TANKERSLEY LEWIS

          ATTORNEYS FOR APPELLEE: J. CAL MAYO JR. SARAH KATHERINE EMBRY

         EN BANC

          BARNES, C.J.

         ¶1. This case stems from Angela Avery's dismissal from her employment at the University of Mississippi (University) as part of the Annual Giving team in the Development Office. The University of Mississippi Personnel Action Review Board (PARB)[1] upheld her employment dismissal, which the Chancellor of the University subsequently affirmed. Avery filed a petition for writ of certiorari in the Lafayette County Circuit Court - the statutory method for seeking review of University employment decisions and the basis for the instant action. The circuit court dismissed her petition for lack of jurisdiction because Avery failed to post a bond with security within six months of the University's termination decision.

         ¶2. Avery now appeals, arguing a bond is not necessary in this situation and that even if it were, there are extenuating circumstances excusing her inability to post bond. Therefore, she claims the circuit court erred in dismissing her petition for writ of certiorari. We agree, and find that under the particular facts of this case there were extenuating circumstances hindering Avery's ability to post bond. Therefore, we reverse the circuit court's dismissal and remand for further proceedings consistent with this opinion.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶3. On February 2, 2017, Avery was terminated by the University. For fifteen years, Avery had been employed by the University Development Office and the University Foundation in various capacities related to fund-raising. For the last two years, she was part of the Annual Giving team in the Development Office. One of her primary duties was creation and management of the University's online crowd-funding platform - Ignite Ole Miss. Through Ignite Ole Miss campaigns, she helped raise over $2.5 million for the University.

         ¶4. While the reasons for Avery's termination are not relevant to the issues presented for appeal, and are in dispute, we shall discuss some of the allegations for context. In November 2016, the University undertook "Progressive Discipline" for what Avery described as personality conflicts among members of the Annual Giving team. In December 2016, Avery received a "Final Warning" regarding "dismissive, confrontational and defensive" behavior at a meeting. Avery contends that further conflict arose when, in January 2017, the University began searching for a new director of Annual Giving. Avery claimed that certain members of the search committee had "gross conflicts of interest" with a candidate who made it to the final round of interviews, while other more qualified candidates were rejected. Avery privately discussed this matter with individuals at the Development Office and Foundation. Ultimately, however, the candidate at issue was not hired.

         ¶5. On February 1, 2017, Avery was given twenty-four hours to decide whether to resign or be terminated for "inappropriate actions" during the search for the director. When Avery did not respond, the University terminated her on February 2. Avery requested a written explanation for the reasons of her termination. In response, on February 23, 2017, Avery received a formal letter from the University, stating the reasons were failure "to improve your job performance after repeated counseling and after verbal and written warnings," which were documented in prior letters to her. Additionally, "[p]revious supervisors had difficulty working with you." Finally, there were "ethical concerns" about Avery "ask[ing] others to assign appeal codes to several gifts that had been attributed to the Ole Miss Fund at the time of receipt," which would benefit Avery's "Ignite numbers." Avery contends this reason for discharge "was contrived and essentially a sham." She alleges that her termination is retaliatory and that she intends to implicate whistle-blowing laws and regulations if her case proceeds.

         ¶6. Avery requested the PARB review the University's termination decision. In March 2017, consistent with University procedure, the PARB conducted a grievance hearing. Numerous witnesses testified for both Avery and the University. The PARB unanimously upheld Avery's employment dismissal. In May 2017, Avery appealed to the University's chancellor, who denied the appeal. He found the original termination decision and the PARB decision upholding the termination were supported by substantial evidence and were not arbitrary or capricious.

         ¶7. Generally, Avery complains that throughout the entire termination process the University has never given explicit or consistent reasons for her termination. Avery claims she was ambushed at the PARB hearing because reasons given for dismissal at the hearing were different from reasons stated in the February 23 letter. Also, reasons were given for termination that were beyond the twelve-month time limit for the University's progressive discipline procedure. Finally, Avery contends that to the extent she was discharged for discussing issues related to the search for the director of Annual Giving, the University violated her First Amendment right to engage in protected activity about matters of public concern. At some point, Avery also filed an ethics complaint with the University Office of Equal Employment and Regulatory Compliance, but she is unaware of the outcome of the investigation.

         ¶8. On September 29, 2017, Avery filed a petition for writ of certiorari in the circuit court in order to appeal the PARB's decision, pursuant to Mississippi Code Annotated section 11-51-93 and -95 (Rev. 2012), which was the proper procedure for appealing the University's termination decision. Section 11-51-93 discusses the bond requirement for the petition.

         ¶9. Avery's attorney claims he was aware of the statute's bond requirement. The record includes his affidavit regarding his attempts to obtain the bond. On the day Avery's attorney filed the petition, he spoke to the clerk of the circuit court about setting the bond as required by statute. The clerk advised him that she did not set bonds on appeals; a circuit court judge assigned to the case must provide it. The same day, Avery's attorney advised the University's attorney that he was trying to get the assigned judge, Andrew Howorth, to set the bond. He then met with Judge Howorth, who advised Avery's counsel he would be unable to set bond because he and all of the other judges in the district were recusing themselves from the case. On September 29, 2017, Avery's counsel sent an email to the University explaining his dilemma.

         ¶10. On October 10, 2017, an order of recusal for all of the judges in the district was entered. On October 19, 2017, Avery filed a motion to determine and/or set bond because it appeared no one was willing or able to set bond in the matter. On October 27, 2017, the Honorable James McClure was appointed as a special judge on the case. On November 3, 2017, Avery's counsel wrote to Judge McClure ...


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