Southern Farm Bureau Life Insurance Company v. Regina Thomas and Pam Pilgrim ( 2020 )


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  •                    IN THE SUPREME COURT OF MISSISSIPPI
    NO. 2019-IA-00324-SCT
    SOUTHERN FARM BUREAU LIFE INSURANCE
    COMPANY
    v.
    REGINA THOMAS AND PAM PILGRIM
    DATE OF JUDGMENT:                        02/04/2019
    TRIAL JUDGE:                             HON. WINSTON L. KIDD
    TRIAL COURT ATTORNEYS:                   DION JEFFERY SHANLEY
    W. THOMAS SILER, JR.
    JASON THOMAS MARSH
    ALAN M. PURDIE
    COURT FROM WHICH APPEALED:               HINDS COUNTY CIRCUIT COURT
    ATTORNEYS FOR APPELLANT:                 W. THOMAS SILER, JR.
    MALLORY KAYE BLAND
    GREGORY TODD BUTLER
    JASON THOMAS MARSH
    ATTORNEYS FOR APPELLEES:                 DION JEFFERY SHANLEY
    ALAN M. PURDIE
    NATURE OF THE CASE:                      CIVIL - TORTS-OTHER THAN PERSONAL
    INJURY & PROPERTY DAMAGE
    DISPOSITION:                             REVERSED AND RENDERED - 08/06/2020
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    BEFORE KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ.
    MAXWELL, JUSTICE, FOR THE COURT:
    ¶1.   Former Southern Farm Bureau Life Insurance Company employees Regina Thomas
    and Pam Pilgrim filed suit against the company claiming they were wrongfully discharged.
    While recognizing Mississippi is an at-will-employment state, the former employees alleged
    Southern Farm Bureau’s employee handbook altered their at-will status. They insist the
    handbook conferred certain substantive and procedural rights, including the right not to be
    discriminated against based on gender and age, which they suggest they were denied. But
    upon review, the employee handbook expressly disclaimed the formation of any employment
    contract. So under Mississippi law, Thomas and Pilgrim remained at-will employees. This
    meant they could be fired for good reason, bad reason, or no reason at all, except for reasons
    independently declared legally impermissible.
    ¶2.    Termination motivated by discrimination has been declared legally impermissible by
    federal statutory law. But here, Thomas and Pilgrim have disavowed any reliance on federal
    law in making their claim. Rather than having exhausted their administrative remedies—as
    is required when bringing a gender-discrimination claim—they ask this Court to create an
    exception to an already existing exception to the at-will doctrine. This requested action
    would allow them to avoid the express procedural requirements for federal discrimination
    claims. But this Court has recognized that creating exceptions to the at-will doctrine is a
    legislative concern, not a judicial task. Because Congress has already created a
    discrimination-based exception to the at-will doctrine—which Thomas and Pilgrim failed to
    pursue—we reject their request.
    ¶3.    Taking the allegations in the complaint as true, Thomas and Pilgrim have no
    wrongful-termination claim. The employee handbook did not alter their at-will status, and
    they have abandoned the federal statutory discrimination exception to the at-will doctrine.
    The related claims in their complaint similarly fail as a matter of law. Thus, we reverse the
    2
    order denying Southern Farm Bureau’s motion for summary judgment and render a judgment
    dismissing all claims against Southern Farm Bureau.
    Background Facts and Procedural History
    ¶4.    Thomas and Pilgrim sued Southern Farm Bureau in the Circuit Court of Hinds
    County, Mississippi. Their nine-count complaint asserted claims of (1) wrongful discharge,
    (2) breach of contract, (3) breach of good faith and fair dealing, (4) negligence, (5) gross
    negligence, (6) defamation, (7) invasion of privacy, (8) intentional infliction of emotional
    distress, and (9) negligent infliction of emotional distress.
    ¶5.    According to their complaint, before they were fired, both were long-term employees
    in Southern Farm Bureau’s administrative-services department. They also had a separate
    cleaning company that contracted with Southern Farm Bureau.               After an internal
    investigation into the cleaning company’s invoices, Southern Farm Bureau terminated both
    women, accusing the two of theft and dishonesty.
    ¶6.    Because the complaint alleged Thomas’s and Pilgrim’s terminations were “a
    pretextual means of avoiding federal proscriptions against gender discrimination,” Southern
    Farm Bureau removed the complaint to federal court. But the federal court remanded the
    case to state court. It did so based on Thomas and Pilgrim’s express assertions that they were
    bringing claims based solely on Mississippi law. According to the federal court’s remand
    order, Thomas and Pilgrim “maintain[ed] . . . that they have not asserted their claims under
    federal law and are instead traveling solely under state law to enforce their right, based on
    the public policy of Mississippi and/or arising under the antidiscrimination provisions of
    3
    Southern Farm Bureau’s employee handbook, to be free from discrimination based on gender
    and/or age.”
    ¶7.    Following remand, Southern Farm Bureau filed a motion to dismiss the complaint
    under Mississippi Rule of Civil Procedure 12(b)(6) or, alternatively, for summary judgment
    under Mississippi Rule of Civil Procedure 56(c). Southern Farm Bureau argued Thomas and
    Pilgrim had no viable claim for wrongful termination under the employee handbook or
    Mississippi law.1
    ¶8.    At the motion hearing, the parties discussed with the court whether to treat the
    pending motion as a motion to dismiss on the pleadings or a summary judgment motion.
    Both parties submitted a document outside the pleadings. Southern Farm Bureau attached
    to its motion a copy of the written disclaimer in the employee handbook. And later it
    submitted the entire handbook. Thomas and Pilgrim responded with an affidavit by Thomas.
    1
    In affirming the denial of Thomas and Pilgrim’s request for fees related to the
    remand of their lawsuit to state court, the Fifth Circuit recognized that Southern Farm
    Bureau had an “objectively reasonable basis for seeking removal” to federal court. Thomas
    v. S. Farm Bureau Life Ins. Co., 751 F. App’x 538, 540 (5th Cir. 2018). As support, the
    Fifth Circuit noted, “only federal law offers relief for plaintiffs’ ‘wrongful discharge’
    claim.”
    Id. “Mississippi law does
    not recognize claims of age or gender (sex)
    discrimination.”
    Id. at 541.
    As the Fifth Circuit put it, “[t]here is no state antidiscrimination
    statute[.]”
    Id. (citing Pegues v.
    Miss. State Veterans Home, No. 3:15-CV-00121-MPM-
    JMV, 
    2017 WL 3298684
    , at *5 (N.D. Miss. Aug. 2, 2017)). “[A]nd Mississippi ‘follow[s]
    the common-law rule of at-will employment.’”
    Id. (quoting Swindol v.
    Aurora Flight Scis.
    Corp., 
    194 So. 3d 847
    , 849 (Miss. 2016)). “Thus, ‘wrongful-discharge suits in Mississippi
    generally must be based upon written employment contracts.’”
    Id. (quoting Cmty. Care
    Ctr.
    of Aberdeen v. Barrentine, 
    160 So. 3d 216
    , 217 (Miss. 2015)).
    4
    ¶9.    Following the hearing, the circuit court summarily denied the motion. This Court
    granted Southern Farm Bureau’s petition to file an interlocutory appeal.
    Standard of Review
    ¶10.   Procedurally, we approach Southern Farm Bureau’s motion as a summary judgment
    motion under Rule 56(c), viewing the evidence submitted to the trial court in the light most
    favorable to Thomas and Pilgrim, the nonmovants. Hyde v. Martin, 
    264 So. 3d 730
    , 734
    (Miss. 2019). But because there has been no discovery, we take as true the allegations in the
    complaint to the extent they are consistent with the evidence in the record, similar to a Rule
    12 motion to dismiss. See Scaggs v. GPCH-GP, Inc., 
    931 So. 2d 1274
    , 1275 (Miss. 2006)
    (standard of review for motion to dismiss).
    ¶11.   Under Rule 56(c), summary judgment “shall be rendered forthwith if the pleadings,
    depositions, answers to interrogatories and admissions on file, together with the affidavits,
    if any, show that there is no genuine issue as to any material fact and that the moving party
    is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). This Court reviews de novo
    the denial of Southern Farm Bureau’s motion for summary judgment. 
    Hyde, 264 So. 3d at 734
    . With this standard in mind, we reverse the denial of summary judgment and render a
    judgment in Southern Farm Bureau’s favor.
    Discussion
    I.     Wrongful-Discharge Claims
    ¶12.   Southern Farm Bureau argues Thomas and Pilgrim have no claim for wrongful
    discharge based on Mississippi’s at-will-employment doctrine. In response, Thomas and
    5
    Pilgrim concede Mississippi follows the longstanding common law rule of at-will
    employment. Swindol v. Aurora Flight Scis. Corp., 
    194 So. 3d 847
    , 850 (Miss. 2016)
    (citing Kelly v. Miss. Valley Gas Co., 
    397 So. 2d 874
    , 874-75 (Miss. 1981); Butler v. Smith,
    
    35 Miss. 457
    (1858)). Under the at-will-employment doctrine, “absent an employment
    contract expressly providing to the contrary, an employee may be discharged at the
    employer’s will for good reason, bad reason, or no reason at all, excepting only reasons
    independently declared legally impermissible.” McArn v. Allied Bruce-Terminix Co., Inc.,
    
    626 So. 2d 603
    , 606 (Miss. 1993) (quoting Shaw v. Burchfield, 
    481 So. 2d 247
    , 254 (Miss.
    1985)).
    A.     Employee Handbook
    ¶13.   Still, Thomas and Pilgrim argue Southern Farm Bureau “abrogated” the at-will
    doctrine. They point to the company’s comprehensive employee handbook, which covered
    antidiscrimination, progressive discipline, and employee investigations. They base their
    claims of wrongful discharge, breach of contract, breach of good faith and fair dealing,
    negligence, and gross negligence specifically and exclusively on the employee handbook.
    And they claim these handbook provisions conferred substantive and procedural rights. As
    support, they cite Bobbitt v. Orchard, Ltd., 
    603 So. 2d 356
    , 361 (Miss. 1992). In Bobbitt,
    this Court held that an employee manual detailing discipline and termination had become part
    of an employment contract that had to be followed. But there is a material difference
    between the handbook in Bobbitt and the one here. In Bobbitt, there was “no express
    disclaimer or contractual provision that the manual did not affect the employer’s right to
    6
    terminate the employee at will . . . .”
    Id. at 362.
    Here, by sharp contrast, Southern Farm
    Bureau’s employee handbook began with the express disclaimer, “This handbook is not a
    contract of employment . . . .” Thomas and Pilgrim admit this disclaimer exists but dismiss
    it as “boilerplate.” Essentially, they ask this Court to ignore the express provision at the front
    of the handbook that warns the handbook is not a contract. They prefer we overlook this
    disclaimer and elevate the handbook’s remaining provisions to the status of a binding
    employment contract. But their request collides with the handbook’s language. It also
    contradicts existing law that the at-will-employment doctrine can be altered only by “an
    employment contract expressly providing to the contrary.” 
    McArn, 626 So. 2d at 606
    (emphasis added).
    ¶14.   Southern Farm Bureau’s employee handbook expressly stated that Thomas and
    Piglrim’s at-will status was not being altered. Consequently, their claims for wrongful
    discharge, breach of contract, breach of good faith and fair dealing, negligence, and gross
    negligence fail as a matter of law.
    ¶15.   We dismiss these claims.
    B.     Public Policy
    ¶16.   Alternatively, Thomas and Pilgrim ask this Court to create a common-law cause of
    action for wrongful termination based on an “existing yet dormant public policy against age
    and/or gender discrimination.”
    ¶17.   Importantly, Thomas and Pilgrim are not asking that we finally recognize a cause of
    action based on discrimination in the workplace. Indeed, such actions already exist. Title
    7
    VII of the Civil Rights Act of 1964 prohibits adverse employment decisions motivated by sex
    discrimination. 42 U.S.C. § 2000e et seq. (2012). And the Age Discrimination in
    Employment Act of 1967 protects older employees against discrimination. 29 U.S.C. § 621
    et seq. (2012). So under these statutes, Mississippi employees wrongfully terminated from
    their jobs due to sex and/or age discrimination already have the ability to sue their former
    employers in Mississippi courts.2 E.g., Cash Distrib. Co. v. Neely, 
    947 So. 2d 286
    (Miss.
    2007) (former employee brought wrongful-termination action under ADEA alleging age
    discrimination); Partain v. Sta-Home Health Agency of Jackson, Inc., 
    904 So. 2d 1112
    ,
    1116 (Miss. Ct. App. 2004) (former employee brought wrongful-termination action under
    Title VII alleging her termination was motivated by her gender and her pregnancy). As with
    other statutory causes of action, employees are required first to exhaust their administrative
    remedies—namely, by filing a complaint with the Equal Employment Opportunity
    Commission. Apparently, Thomas and Pilgrim failed to do this. That is why they abandoned
    any federal-law claim when their lawsuit was removed to federal court.
    ¶18.   In other words, by asking this Court to judicially carve out a public-policy exception
    to the at-will doctrine based on discrimination, Thomas and Pilgrim are really seeking a new
    common-law alternative to federal statutory claims. They are requesting this—not because
    Title VII and the ADEA do not sufficiently protect their rights or align with Mississippi
    public policy—but because they did not properly pursue these statutory claims.
    2
    “State courts have concurrent jurisdiction with federal district courts over Title VII
    cases.” Burks v. Amite Cty. Sch. Dist., 
    708 So. 2d 1366
    , 1371 (Miss. 1998) (citing Yellow
    Freight Sys., Inc. v. Donnelly, 
    494 U.S. 820
    , 824-825, 
    110 S. Ct. 1566
    , 
    108 L. Ed. 2d 834
    (1990)).
    8
    ¶19.   In only two circumstances has this Court recognized a common-law tort based on “a
    narrow public policy exception to the employment at will doctrine.”3 
    McArn, 626 So. 2d at 607
    . In all other cases, we have deferred to the legislative process to create exceptions to the
    at-will doctrine. E.g., 
    Swindol, 194 So. 3d at 852
    (observing there was no need to “judicially
    graft another ‘exception’ to the employment-at-will doctrine . . . because the Legislature
    already has”); Kelly v. Miss. Valley Gas Co., 
    397 So. 2d 874
    , 876 (Miss. 1981) (“Plaintiff’s
    arguments in favor of a cause of action for retaliatory discharge under the facts alleged in his
    bill have considerable appeal. However, the merits of his arguments are clearly for the
    Legislature to assess, not the judiciary.”). Indeed, this Court’s expression of the at-will
    doctrine recognizes creating exceptions is a legislative task. Under the at-will doctrine, “an
    employee may be discharged at the employer’s will for good reason, bad reason, or no reason
    at all, excepting only reasons independently declared legally impermissible.” 
    McArn, 626 So. 2d at 606
    (emphasis added) (quoting 
    Shaw, 481 So. 2d at 254
    ); see also Kelly, 
    397 So. 2d
    at 875 (recognizing that “the harshness of the terminable at will rule is subject to
    3
    These exceptions are:
    (1) an employee who refuses to participate in an illegal act . . . shall not be
    barred by the common law rule of employment at will from bringing an action
    in tort for damages against his employer; [and]
    (2) an employee who is discharged for reporting illegal acts of his employer
    to the employer or anyone else is not barred by the employment at will
    doctrine from bringing action in tort for damages against his employer.
    
    McArn, 626 So. 2d at 607
    .
    9
    exception in light of express legislative action” (quoting Green v. Amerada-Hess Corp., 
    612 F.2d 212
    , 214 (5th Cir. 1980))).
    ¶20.     Terminations motivated by sex and age discrimination have already been
    “independently declared legally impermissible” under Title VII and the ADEA. 
    McArn, 626 So. 2d at 606
    . So, as in Swindol, there is no void necessitating this Court “judicially graft
    another ‘exception’ to the employment at-will-doctrine” because exceptions for sex and/or
    age discrimination already exist. 
    Swindol, 194 So. 3d at 852
    . Taking as true Thomas and
    Pilgrim’s allegations that the given reason for their terminations was a pretext for gender and
    age discrimination, Thomas and Pilgrim had a cause of action under federal law. But they
    failed to properly pursue it. And when facing a federal judge—when their case was removed
    to district court—they affirmatively disavowed seeking a federal remedy. For this reason,
    we decline to grant their request to judicially create a common-law cause of action—or an
    exception to an already existing exception—advanced seemingly to skirt the procedural
    requirements of their statutory cause of action.
    II.    Defamation and Invasion-of-Privacy Claims
    ¶21.   In addition to claims related to wrongful discharge, Thomas and Pilgrim asserted
    claims for defamation and invasion of privacy (false light). They based these allegations on
    assertions that Southern Farm Bureau told its employees the two were terminated for stealing
    money from the company. We dismiss these claims too.
    ¶22.   Both defamation and invasion of privacy are subject to the defense of privilege.
    Young v. Jackson, 
    572 So. 2d 378
    , 383 (Miss. 1990). And this Court recognizes a qualified
    10
    privilege for statements made in the context of the employer/employee relationship.
    Id. Taking the allegations
    in Thomas and Pilgrim’s complaint as true, Southern Farm Bureau’s
    communications to its employees about why Thomas and Pilgrim were terminated fell under
    this privilege.
    ¶23.   Thomas and Pilgrim allege Southern Farm Bureau employees in turn “disseminated
    that information to the general public including members of the church where Plaintiff
    Thomas’ family members attend.” While these alleged outside-of-work communications
    would not have been privileged, they also are not attributable to Southern Farm Bureau, the
    only defendant named in the complaint. Allegedly gossiping to non-coworkers about former
    coworkers in social gatherings such as Sunday School is outside the course and scope of
    employment.         Such activity neither “carr[ies] out the employer’s purpose of the
    employment,” nor is it “in furtherance of the employer’s business.” Cockrell v. Pearl River
    Valley Water Supply Dist., 
    865 So. 2d 357
    , 361-62 (Miss. 2004) (citing Seedkem South, Inc.
    v. Lee, 
    391 So. 2d 990
    , 995 (Miss. 1980). So Southern Farm Bureau cannot be liable for
    these individuals’ allegedly defamatory and tortious rumors.
    III.       Emotional-Distress Claims
    ¶24.   Finally, we also dismiss Thomas and Pilgrim’s claims of intentional infliction and
    negligent infliction of emotional distress. Their claim for negligent infliction of emotional
    distress is barred by the exclusivity provision of the Mississippi Workers’ Compensation Act.
    Bowden v. Young, 
    120 So. 3d 971
    , 976 (Miss. 2013). And “damages for intentional
    infliction of emotional distress are usually not recoverable in mere employment disputes.”
    11
    Raiola v. Chevron U.S.A., Inc., 
    872 So. 2d 79
    , 85 (Miss. Ct. App. 2004). “Only in the most
    unusual cases does the conduct move out of the ‘realm of an ordinary employment dispute’
    into the classification of ‘extreme and outrageous,’ as required for the tort of intentional
    infliction of emotional distress.” Prunty v. Arkansas Freightways, Inc., 
    16 F.3d 649
    , 654
    (5th Cir. 1994) (citations omitted). Thomas and Pilgrim fail to allege “conduct . . . ‘so
    outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
    decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’”
    
    Bowden, 120 So. 3d at 980
    (quoting Pegues v. Emerson Elec. Co., 
    913 F. Supp. 976
    , 982
    (N.D. Miss. 1996)).
    Conclusion
    ¶25.   For these reasons, we reverse the trial court’s decision and render a judgment
    dismissing all claims against Southern Farm Bureau.
    ¶26.   REVERSED AND RENDERED.
    RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, BEAM,
    CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.
    12