Smith v. E. Miss. Elec. Power Ass'n

WILLIAM PAUL SMITH PLAINTIFF v. EAST MISSISSIPPI ELECTRIC POWER ASSOCIATION DEFENDANT

CIVIL ACTION NO. 3:19-CV-335-HTW-LGI

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION

April 8, 2021

ORDER

Before this court is a Motion for Summary Judgment, [Docket no. 40], submitted by Defendant East Mississippi Electric Power Association ("EMEPA"), under the auspices of Rule 56¹ of the Federal Rules of Civil Procedure. EMEPA asserts that Plaintiff William Paul Smith ("Plaintiff") has failed to present any factual or legal grounds, which would allow this case to proceed to a jury. The Plaintiff opposes EMEPA's motion, asserting that he has submitted enough evidence to survive summary judgment. [Docket no. 45]. This court, upon reviewing the record before it, and the applicable law, finds that this lawsuit features factual discrepancies, as well as significant questions about the mindset of various EMEPA representatives and employees; therefore, summary judgment is improper, and this lawsuit is now ripe for jury resolution.

I. BACKGROUND

Plaintiff filed his Complaint on May 10, 2019, alleging that EMEPA had terminated him in violation of the Uniformed Services Employment and Reemployment Rights Act ("USERRA")². [Docket no. 1]. On October 5, 2019, United States Magistrate Judge Linda Anderson granted Plaintiff's motion to amend his Complaint to add a claim pursuant to Mississippi Code Section 33-1-15³, which, in spite of Mississippi's employment-at-will termination doctrine, seeks to hold liable the Defendant for willfully discriminating and discharging Plaintiff because of his military service. [Docket no. 25].

Filed on November 5, 2019, [Docket no. 27], Plaintiff's Amended Complaint alleges:

1. EMEPA wrongfully terminated him due to his military service record and upcoming mobilization;

2 EMEPA's employees harassed him because of his military service;

3. EMEPA failed to reinstate him to his current position after his first mobilization; and

4. EMEPA discriminated against him relative to promotions.

[Docket no. 27, pp. 2, 4-5].

Defendant EMEPA responds that it terminated Plaintiff not on the basis of any military affiliation, but because he was belligerent and insubordinate to his foreman, and that he refused adirect instruction to ground an electrical line and, in so doing, put the safety of his crew at risk. [Docket no. 41, p. 1].

EMEPA asserts that it is also entitled to summary judgment on Plaintiff's Mississippi state law claim of wrongful termination by his employer because "the Mississippi Supreme Court has not recognized an exception to its long-standing at-will employment doctrine for such terminations, and Mississippi has never recognized an exception to the at-will employment [doctrine] on a basis for which federal law already provides a remedy." [Docket no. 41, p. 1].

A. Plaintiff's Military and Employment History

Plaintiff has been a member of the Mississippi Army National Guard since 1990. Plaintiff alleges that he has been assigned to the 289^th Engineer Company located in Bruce, Mississippi since 2017. EMEPA hired Plaintiff on December 9, 1999, when he was still active with the 289^thEngineer Company, to work as a "Groundman" at its Louisville, Mississippi location. Plaintiff says he was employed by EMEPA for more than seventeen (17) years before his termination on August 17, 2017. [See Docket nos. 27 and 40-1].

Throughout his employment with EMEPA, Plaintiff took multiple military service-related leaves of absence for training and deployment, including a deployment lasting one year, and another lasting over three years. [See Docket no. 40-1]. Plaintiff's EMEPA employment record reflects that, during his tenure at EMEPA, Plaintiff was on military-related leave for a total period of approximately five (5) years. [Docket no. 40-1]. Plaintiff's Amended Complaint further alleges the following:

The plaintiff was mobilized three times for active military duty. In 2003, he was called to active duty for 16 months in Iraq. He returned to work for a short period and was then recalled to active duty at Camp Shelby, Mississippi in August 2006. He was later mobilized again in 2018 to serve in Kuwait. [Docket no. 27, p. 2, ¶ 11].

Upon his return to work from his first mobilization, EMEPA failed to reinstate him in his position in Louisville. Rather, EMEPA transferred him to the Meridian office which required him to travel about 120 miles a day. EMEPA violated USERRA by not reinstating him to his previous position. [Docket no. 27, p. 2, ¶ 13].

After the plaintiff filed an informal verbal administrative complaint under USERRA, EMEPA restored the plaintiff to his position in the Louisville office and reimbursed him for his mileage. [Docket no. 27, p. 2, ¶ 14].

EMEPA continued to harass the plaintiff about his service to his country. [Alan] Ward [plaintiff's supervisor], told the plaintiff 2 to 3 times a year that he would probably lose his job if he did not get out of the Guard. Ward made the statement both before and after he became the plaintiff's supervisor. [Docket no. 27, p.3, ¶ 15.]

[Plaintiff] was told by Brice Nester, [the head of the department of service and customer relations], that he was not eligible for certain positions or promotions because he was "gone too much on military duty." [Docket no. 27, p.3, ¶ 16].

[Plaintiff] was not allowed to take the test to qualify for a promotion to a journeyman lineman because he was told by Brice Nester...that "you know that they will not allow you to take the test because you are gone too much." [Docket no. 27, p.3, ¶ 17].

Plaintiff's Employment and Wage history, however, reflects that except for Plaintiff's first deployment, each time Plaintiff returned from military leave, EMEPA restored him immediately to his prior employment position. Plaintiff also received step increases, pay realignments, and annual pay increases. [Docket no. 40-1]. Over the years, Plaintiff's job title changed from "Groundman" to "Apprentice Lineman", "Lineman", "Serviceman 1", and "Serviceman SE⁴". [Docket no. 41-1]. Plaintiff's highest wage as a "Groundman" was $9.91per hour, and his wage at the time of termination, as a "Serviceman SE", was $28.70 per hour. [Docket no. 41-1].

B. Plaintiff's Termination

EMPEA claims it terminated Plaintiff's employment because of Plaintiff's insubordination and an escalating pattern of conflict between Plaintiff and his supervisor, Alan Ward ("Ward"). EMPEA points specifically to an incident, which occurred on July 5, 2017, as grounds for Plaintiff's termination. The parties concede that, on said date, Plaintiff had a heated exchange with supervisor Ward over work issues, namely, the proper way to ground an electrical wire. [Docket no. 40-9, p. 2]. Immediately thereafter, Plaintiff reported the incident to the Louisville, Mississippi office manager, Patricia Stokes ("Stokes"). [Docket nos. 40-1 and 40-9].

The following day, on July 6, 2017, Plaintiff claims he returned to work and apologized to Ward for having lost his temper, allegedly for the first time in his approximately eighteen years of employment. [Docket no. 27, p. 3, ¶ 21]. He explained to Ward that his father had just passed away, and he was still emotional and upset. [Docket no. 40-8]. Ward allegedly told Plaintiff that he would receive a write-up, or written reprimand, for the incident.

On the same day, July 6, 2017, Stokes issued Plaintiff a write-up for insubordination. [Docket nos. 40-4 and 40-15]. Plaintiff asserts that Stokes indicated they "would keep [the incident] in house", allegedly giving Plaintiff the impression that she would not send it to the Meridian, Mississippi home office. [Docket no. 27, p. 4]. Stokes, however, at some point thereafter, forwarded the write-up to EMEPA's Human Resources Director, Sherry Wallace ("Wallace") at the Meridian, Mississippi location. [Docket nos. 40-4 and 40-21].

On or about July 17, 2017, Wallace says he informed CEO Randy Carroll ("Carroll") of the July 6, 2017, write-up⁵. [Docket no. 40-3]. About the same time, says Wallace, he noticed that Stokes had used an outdated form to give Plaintiff the warning write-up. "[Carroll] told [Wallace] we needed to get the new form filled out, get it corrected, and get written statements from each person that was at the site." [Docket no. 40-3]. The statements from the other crew members, who observed the incident, were consistent with Plaintiff's account. [Docket no. 40-11].

On or about August 2, 2017, Plaintiff received a mobilization letter from his National Guard unit, advising him that his unit would be mobilized for another year of overseas duty, sometime in early 2018. [Docket no. 40-14]. Plaintiff alleges he gave the letter to his office manager, Stokes, the same day or the next day. [Docket no. 40-2].

On August 7, 2017, at Stokes's request, Plaintiff submitted a detailed statement describing the incident of July 5, 2017. [Docket no. 40-9]. Stokes transferred the information to the revised/current form, and Plaintiff signed the revised write-up on August 8, 2017. [See Docket no. 40-13; compare Docket no. 40-6].

Stokes, meanwhile, also sent Plaintiff's letter of mobilization to Wallace in Meridian, Mississippi, and Wallace dated the letter as "received" on August 10, 2017. [Docket nos. 40-4 and 40-21]. CEO Carroll alleges he was not made aware of the mobilization letter. [Docket no. 40-9]. Carroll alleges further that "deployment orders are not the type of information he would...typically be made aware of as EMEPA's CEO". [Docket no. 40-3].

On August 14, 2017, Carroll terminated Plaintiff, citing the July 5, 2017, incident as the cause of termination. [Docket no. 40-15]. EMEPA alleges that Carroll's decision was in no way influenced by Plaintiff's impending deployment, as he was unaware that Plaintiff was going to be deployed. [Docket no. 40-9].

II. JURISDICTION

USERRA provides employment protection to activated members of the military. USERRA is a federal statute; accordingly, this...