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Boland v. Mississippi Department of Public Safety

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

November 13, 2019

MARY L.M. BOLAND PLAINTIFF
v.
MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY, ET AL. DEFENDANTS MARY L.M. BOLAND PLAINTIFF
v.
MARSHALL FISHER, ET AL. DEFENDANTS

          ORDER

          DANIEL P. JORDAN III, CHIEF UNITED STATES DISTRICT JUDGE.

         In April 2017, Plaintiff Mary Boland was fired from her job as an attorney for the Mississippi Department of Public Safety (“DPS”). Six months later, Boland filed two federal lawsuits, naming DPS; its Commissioner, Marshall Fisher; and her former supervisor, Ray Sims, as defendants. The claims at issue here allege that Defendants Fisher and Sims retaliated against Boland for engaging in protected speech and maliciously interfered with her employment at DPS. Fisher and Sims moved for summary judgment [43], and for the following reasons, their motion is granted.

         I. Background

         Boland began working at DPS in October 2015. Boland Dep [43-1] at 11-12, 38. “Several weeks” before she lost her job, Bolen was asked to draft a request for proposal (“RFP”) that solicited bidders for advertising contracts funded by grants from the National Highway Traffic Safety Administration (“NHTSA”). Boland Aff. [46-3] at 1. During that project, Boland learned that NHTSA believed Mississippi was issuing “ghost tickets” and that NHTSA might not provide the grants as a result. Fisher Dep. [43-2] at 12-13; Boland Dep. [43-1] at 100-01. Boland later confronted an NHTSA representative, while the representative was meeting with Sims, about the allegation. She ask, “[W]hy did his fellow employee allege that Mississippi was guilty of wrongdoing.” Boland Aff. [46-3] at 3; see also Boland Dep. [43-1] at 103. The parties dispute whether Boland asked that question within the scope of her ordinary duties or as a citizen regarding a matter of public concern.

         There is no dispute that Boland's confrontation with NHTSA became heated. Though she denies raising her voice, she testified that the NHTSA representative “jumped up and went crazy and was screaming at [her.]” Boland Dep. [43-1] at 103. As a result, Sims asked Boland to leave. Id. Sims explained that after this incident he told Fisher what happened because he was concerned that the NHTSA representative “was going to go back and talk to his director, which he did. [Sims] ended up calling his director after talking to [Fisher] and . . . apologized to him if his staff person was offended in any kind of way.” Sims Dep. [31-10] at 29-30.

         Although Sims reported the incident to Fisher, Sims never recommended discipline. Fisher Dep. [43-2] at 8-10. Nevertheless, Fisher discussed what happened with his “executive counsel” and Jim Younger, a senior DPS attorney. Id. at 8; see also Younger Dep. [31-4] at 4. Fisher concluded that Boland should be fired, but not just for the NHTSA confrontation. Fisher Dep. [43-2] at 6, 8. Fisher says he also based the decision on Boland's “unprofessional conduct” at other times during her employment, including two incidents that generated complaints from judges. Id. at 6-7, 19. Boland did not dispute the other problems in her summary-judgment response.

         Aggrieved by the termination, Boland filed two lawsuits: one alleging gender and race discrimination under Title VII, Pl.'s Compl. (3:17-CV-803) [1] ¶ 3, and one alleging First Amendment retaliation and tortious interference with her employment, Pl.'s Compl. (3:18-CV-718) [1] ¶¶ 3, 13. The Court previously denied Defendants' motion for summary judgment on Boland's Title VII claims, see Mar. 12, 2019 Order (3:17-CV-803) [35], and then consolidated the two cases, see Apr. 16, 2019 Order [40]. Defendants now seek summary judgment on the First Amendment and tortious-interference claims.

         II. Standard

         Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when evidence reveals no genuine dispute regarding any material fact and the moving party is entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the court may “not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).

         III. Analysis

         A. First Amendment Retaliation

         Boland says Fisher fired her because she asked the NHTSA representative “why . . . his fellow employee allege[d] that Mississippi was guilty of wrongdoing.” Boland Aff. [46-3] at 3. Believing that her question constituted protected speech, Boland now asserts a First Amendment retaliation claim under 42 U.S.C. § 1983. Section 1983 states that a person who, under color of law, “subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured[.]”

         Although a person who “enters government service . . . by necessity must accept certain limitations on his or her freedom, ” public employees, such as Boland, “do not surrender all their First Amendment rights by reason of their employment.” Garcetti v. Ceballos, 547 U.S. 410, 417-18 (2006). Rather, “the First Amendment protects a public employee's [First Amendment] right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Id. at 417. In balancing public employees' First Amendment rights with their employers' interest in the “efficient provision of public services, ” id. at 418, the Supreme Court has held that “when public employees make statements pursuant to ...


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