IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 27, 2009
No. 08-60799 Charles R. Fulbruge III
Clerk
CHARLIE FLOYD
Plaintiff-Appellant
v.
AMITE COUNTY SCHOOL DISTRICT; AMITE COUNTY BOARD OF
EDUCATION; JOHN DAVIS, in his official and individual capacity;
BEACHUM WILLIAMS, in his official and individual capacity; MARY RUSS,
in her official and individual capacity
Defendants-Appellees
Appeal from the United States District Court for the Southern District of
Mississippi, Jackson Division
Before KING, GARWOOD and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Plaintiff Charles Floyd appeals the dismissal of his claims on summary
judgment against the Amite County School District, the School Board and
various school board members and employees following his termination as
principal of Amite County High School. With respect to Floyd’s federal race
discrimination claims, we agree with district court that Floyd failed to raise a
genuine issue of fact that he was discriminated against on the basis of his race.
No. 08-60799
We also find no error in the district court’s dismissal of Floyd’s state law claims.
Accordingly, we affirm.
I.
From 2000 until the summer of 2002, Charles Floyd served as both track
coach and principal at Amite County High School (ACHS) in Amite County,
Mississippi. He had a long history as a track coach at the high school prior to
that time. ACHS is a predominantly African-American high school and all of the
significant actors in this case, including Floyd and the individual defendants, are
African-American. On May 9, 2002, the School Board of the Amite County
School District granted Floyd permission to operate a private track training
program at the ACHS facilities during that summer. Floyd did not inform the
School Board that, in addition to ACHS students and in contrast to his practice
in previous years of the program, white students from private schools in the
community would also be participating in the program. Floyd presented
evidence demonstrating that John Davis, President of the School Board, was
biased against him for allowing white private school students to participate in
the summer track program at ACHS.
At the regular meeting held following completion of the track program on
June 13, 2002, the School Board adopted a “dual position policy.” which
restricted “administrators from holding more than one position in [the] district,
such as coaching and administration.” As a result, Floyd elected to resign as
track coach in order to keep his position as principal. Although there is some
question as to the origin of the motion to adopt the dual position policy, the
defendants claim and the district court found that the policy was consistent with
instructions given to all School Board members by the State of Mississippi at a
statewide conference of the Mississippi School Boards Association held in
February 2002.
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No. 08-60799
In the fall of 2002, Superintendent Mary Russ initiated an investigation
into alleged irregularities in the manner in which Floyd was performing his
duties as principal at ACHS. On October 10, 2002, Floyd was suspended from
his position as principal pending Russ’s investigation, and on November 15,
2002, Russ notified Floyd by letter that he was being terminated for the
following reasons:
1. Improperly charging students a $75.00 fee for alleged tobacco
violations. Further, in addition to the imposition of this
$75.00 punitive fee, the alleged violators have been
improperly suspended from school until the fee was paid.
Additionally, none of the $75.00 fees have been accounted for
to this date to this office after repeated requests.
2. Numerous inaccuracies, white-outs, additions, etc. in the
cumulative records of Amite County students which you
signed.
3. Removing the Physical Science course from the curriculum
without authorization.
4. Holding track and field events on public school property for
private groups without fully explaining to the board the
details of these activities.
5. Failure to fulfill your duties as a full time principal by
spending an inordinate amount of time on activities unrelated
to your contractual responsibilities.
6. Failure to timely complete student schedules for the 2002-
2003 school year.
Pursuant to Mississippi Code Annotated § 37-9-59, Floyd sought a due
process hearing before the School Board, which was conducted over the course
of several days by an independent hearing officer in March and April of 2003.
On July 11, 2003, the School Board, after reviewing the hearing transcripts and
the hearing officer’s report, issued a unanimous opinion that Floyd’s dismissal
was a proper employment decision and not contrary to law. Pursuant to
Mississippi Code Annotated § 37-9-113, Floyd appealed to the Amite County
Chancery Court, which ruled on October 21, 2003, that the School Board’s
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No. 08-60799
decision was not supported by substantial evidence and therefore reinstated
Floyd. The School District and the School Board appealed to the Mississippi
Court of Appeals, which, in an en banc opinion issued on November 3, 2004,
reversed the chancery court , finding that there was sufficient evidence to
support Floyd’s termination on grounds one (tobacco policy), two (inaccurate
records), and six (school scheduling) listed in Russ’s letter. Floyd filed a petition
for writ of certiorari to the Mississippi Supreme Court, which was eventually
denied on August 3, 2006.
Meanwhile, Floyd was also pursuing relief in federal court. On October
9, 2003, while his appeal was pending before the Mississippi chancery court,
Floyd filed a charge of discrimination with the EEOC. On November 13, 2003,
Floyd received a right to sue letter. On February 6, 2004, while his petition for
writ of certiorari was pending before the Mississippi Supreme Court, Floyd filed
the action underlying this appeal in the district court. In his complaint, Floyd
alleged that his termination was “the product of racial animus toward Coach
Floyd resulting from assisting the Caucasian student-athletes” in violation of
Title VII. Floyd also asserted the following state law claims: breach of contract;
negligent and/or intentional infliction of emotional and mental distress; civil
conspiracy; defamation; tortious interference with contract; and trespass to
chattels. Finally, in his prayer for relief, Floyd mentioned 42 U.S.C. § 1981,
demanding a judgment “[d]eclaring that Defendants violation his rights to
nondiscriminatory treatment under the Fourteenth Amendment and 42 U.S.C.
§ 1981, 2000, et seq.”
The defendants filed a motion to dismiss, arguing that Floyd’s claims were
precluded under the doctrine of res judicata. The district court denied the
motion, finding that Floyd did not have sufficient opportunity to raise his
discrimination claims in the state proceedings. Later, the district court granted
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No. 08-60799
defendant’s subsequent motion for summary judgment on the merits. Floyd
appeals.
II.
The district court decided all issues in this case on the defendants’ motion
for summary judgment.1 We review a grant of summary judgment de novo under
the same standard applied by the district court. Dutcher v. Ingalls Shipbuilding,
53 F.3d 723, 725 (5th Cir. 1995). Summary judgment is appropriate when no
genuine issue of material fact exists and the movant is entitled to judgment as
a matter of law. Id. Fact questions are viewed in the light most favorable to the
nonmoving party and questions of law are reviewed de novo. Id.
III.
Floyd first challenges the district court’s dismissal of his Title VII claim
on the basis that it was not filed timely. In order to file suit under Title VII, 42
U.S.C. § 2000e-5 requires that a plaintiff file a charge of discrimination with the
EEOC “within one hundred and eighty days after the alleged unlawful
employment practice occurred.” Russ suspended Floyd on October 10, 2002 and
sent him the termination letter on November 15, 2002. However, the School
Board did not affirm that decision until July 11, 2003. Floyd filed the charge
with the EEOC on October 9, 2003. Therefore, Floyd’s charge was timely only
if we conclude that the School Board’s decision was the relevant “alleged
unlawful employment practice” for purposes of commencing the limitations
period.
The district court concluded that the relevant employment decision was
Floyd’s termination by Russ on November 15, 2002. Because over one hundred
1
Before addressing the merits of Floyd’s various claims the district court concluded
that Floyd failed to adequately plead a claim under § 1981. We need not address Floyd’s
appeal of that procedural ruling because we affirm the district court’s dismissal of that claim
on the merits.
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No. 08-60799
and eighty days passed between that date and the date Floyd filed the charge
with the EEOC, the district court concluded that Floyd’s claim was time-barred.
The district court relied on Delaware State College v. Ricks, in which the
Supreme Court held that “the pendency of a grievance, or some other method of
collateral review of an employment decision, does not toll the running of the
limitations periods.” 101 S.Ct 498, 506 (1980). Under this approach, Russ’s
termination of Floyd, not the School Board’s decision on appeal, commenced the
limitations period.
However, two key factors distinguish this case from Ricks. First, the
Supreme Court in Ricks carefully examined the plaintiff’s complaint to
specifically identify the unlawful employment practice being alleged. Id. at 503-
04. Further, the Supreme Court acknowledged the possibility that a “continuing
violation” of Title VII might delay the running of the limitations period. Id. at
504. In Ricks, the plaintiff was denied tenure and terminated as a matter of
course over a year later, but he only alleged discrimination in relation to the
tenure decision. Id. at 501-02. The Court noted:
If Ricks intended to complain of a discriminatory discharge, he
should have identified the alleged discriminatory acts that
continued until, or occurred at the time of, the actual termination
of his employment. But the complaint alleges no such facts. . . . In
sum, the only alleged discrimination occurred -- and the filing
limitations periods therefore commenced -- at the time the tenure
decision was made and communicated to Ricks.
Id. at 504. In contrast, Floyd specifically alleged that Russ, Davis and others
colluded to oust him as coach and principal based on his association with white
students. This alleged concerted campaign began with the implementation of
the dual position policy and culminated in the School Board’s decision to
terminate him. Therefore, unlike the plaintiff in Ricks, Floyd does specifically
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No. 08-60799
allege that his termination by the School Board was the final act in a continuing
violation of his rights.2
Ricks is further distinguishable in another key aspect. In Ricks, the Board
of Trustees, which was vested with the ultimate authority over tenure decisions,
chose to deny the plaintiff tenure. Id. at 501. Thus, even though a grievance
process was available to the plaintiff that offered the possibility of relief, the
Board of Trustee’s decision represented the school’s “official position.” Id. at 505.
In contrast, the Mississippi Supreme Court has clearly stated that in Mississippi
the ultimate authority to terminate a school district employee resides with the
school board, not the superintendent:
If anything is clear, it is that the power . . .[to] remove district
school employees for misconduct and to conduct hearings for that
purpose has been completely withdrawn from that official [county
superintendent] by the amended statute . . . It is equally clear that
the removal hearing is to be before the board of trustees, and the
actual power to remove or not to remove rests with [the School
Board].
Yarbrough v. Camphor, 645 So. 2d 867, 870 (Miss. 1994)(quoting Tutwiler v.
Jones, 394 So. 2d 1346 (Miss. 1981)). While a termination of an employee
becomes final if it is not appealed, the decision is only preliminary if the
employee requests a hearing before the school board. Spradlin v. Bd. of Trustees
of Pascagoula Mun. Sch. Dist., 515 So.2d 893, 897 (Miss. 1987). Thus, although
Floyd was forced to cease working without pay upon receiving Russ’s letter of
termination on November 15, 2002, that decision did not represent the “official
2
In a footnote, the Ricks court limited its holding to the facts before it and cautioned
future courts to carefully consider the facts of each case: “Complaints that employment
termination resulted from discrimination can present widely varying circumstances. In this
case, the only alleged discriminatory act is the denial of tenure sought by a college professor,
with the termination of employment not occurring until a later date. The application of the
general principles discussed herein necessarily must be made on a case-by-case basis.” 101
S.Ct. At 504 n.9.
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No. 08-60799
position” of the School District until it was approved by the School Board on July
11, 2003.
Accordingly, Floyd’s charge filed with EEOC on October 9, 2003 was timely
and the district court erred in dismissing his Title VII claim on that basis.
IV.
Despite ruling that Floyd’s Title VII and § 1981 claims should be
dismissed, the district court addressed the merits of those claims. The district
court concluded that those claims failed for two reasons. First, the district court
found that under an associational discrimination analysis, Floyd had no personal
relationship, intimate or otherwise, with the white students in the track
program. Second, the district court recognized that Floyd did not actually allege
that he was fired because he “associated with” the white students. We need not
consider the argument that Floyd’s association with the white students was not
sufficiently close to assert an “association” claim, because we agree with the
district court that Floyd has not established that he was discriminated against
3
on the basis of his race.
Title VII provides that it is an “unlawful employment practice for an
employer to discharge an individual . . because of such individual’s race.” 42
U.S.C. § 2000e-2(a)(1). This court has recognized that § 1981 and Title VII
prohibit discrimination against an employee on the basis of a personal
relationship between the employee and a person of a different race. See Faraca
v. Clements, 506 F.2d 956, 959 (5th Cir. 1975)(section 1981); Deffenbaugh-
Williams v. Wal-Mart Stores, 156 F.3d 581, 589 (5th Cir. 1998)(Title VII),
vacated in part on other grounds in Deffenbaugh-Williams v. Wal-Mart Stores,
Inc., 182 F.3d 333 (5th Cir. 1999)(en banc).
3
Floyd argues only that he was discriminated against because of his association with
the white athletes in the track program. He raises no claim of retaliation in this appeal.
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No. 08-60799
In Deffenbaugh-Williams v. Wal-Mart, the plaintiff, a white female, sued
her employer-department store for race discrimination under Title VII, alleging
that she was terminated because she was dating a black male. 156 F. 3d at 583.
After a jury verdict in favor of the plaintiff, the employer appealed, asserting
that Title VII did not apply to employment discrimination premised on an
interracial relationship. Id. at 588. This court held that “a reasonable juror
could find that [the plaintiff] was discriminated against because of her race
(white), if that discrimination was premised on the fact that she, a white person,
had a relationship with a black person.” Id. This analysis was clearly framed
in a manner consistent with the language of Title VII, which bars discrimination
on the basis of the employee’s race.
The Sixth Circuit explained why an associational discrimination claim is
based on the plaintiff’s race in Tetro v. Elliott Popham Pontiac, Oldsmobile,
Buick, & GMC Trucks, Inc., 173 F.3d 988 (6th Cir. 1999). In Tetro, a white
former employee brought a Title VII action alleging that his former employer
discriminated against him because he had a bi-racial child. The circuit court
explained:
If he had been African-American, presumably the dealership would
not have discriminated because his daughter would also have been
African-American. Or, if his daughter had been Caucasian, the
dealership would not have discriminated because Tetro himself is
Caucasian. So the essence of the alleged discrimination in the
present case is the contrast in races between Tetro and his
daughter. This means that the dealership has been charged with
reacting adversely to Tetro because of Tetro's race in relation to the
race of his daughter. The net effect is that the dealership has
allegedly discriminated against Tetro because of his race.
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No. 08-60799
Id. at 994-995. Tetro accordingly held that the discharge of the plaintiff-
4
employee violated Title VII.
The association cases are predicated on animus against the employee
because of his association with persons of another race. Although Coach Floyd
alleged that he was terminated because of a relationship with persons of another
race, the white track athletes, the evidence Floyd submitted does not indicate
that any animus by his employer was directed at him because of his relationship
with these athletes. Rather, the evidence reflects that the racial animus was
directed solely towards the white students. Floyd’s evidence of racial animus is
based primarily on alleged statements by School Board President Davis. Floyd
claimed in a deposition that Davis told him that “he did not - that they did not
want them white kids over there at [ACHS]. Coach, you know better.” Similarly,
community members Hirschel and Celia Pearson testified by affidavit that, on
or about March 30, 2003, Davis made statements to them to the effect that
“Caucasian students had no business using [ACHS’s] track facilities” and that
“Floyd had no business trying to bring the African American and Caucasian
students together with the summer track program.” School Board President
Davis’ alleged statements indicate that he was angry with Floyd for allowing
white students to intermingle with the black students at ACHS and/or use
ACHS facilities, not because Floyd, a black coach, interacted with the white
students. Floyd’s attorney at oral argument confirmed that Floyd’s mistake was
allowing white and black students “to drink from the same water fountain,” and
stated that “regardless of whether he was white or black, that the racial animus
4
See also Holcomb v. Iona College, 521 F.3d 130,139 (2d Cir. 2008)(“[W]here an
employee is subjected to adverse action because an employer disapproves of interracial
association, the employee suffers discrimination because of the employee’s own race.”); Parr
v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986)(“Where a plaintiff
claims discrimination based upon an interracial marriage or association, he alleges, by
definition, that he has been discriminated against because of his race.”).
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No. 08-60799
about mixing races would have cost Coach Floyd his job.” Although Davis’
statements reflect clear racial animus, nothing in these statements supports a
conclusion that the animus was directed at Floyd on the basis of his race.
Since Floyd’s proof fails to raise a genuine issue of fact that he was
terminated on the basis of his race, the district court did not err in dismissing
his claims under Title VII and § 1981.
VI.
Finally, Floyd challenges the dismissal of his state law claims. The
district court did not err in dismissing these claims. The district court correctly
concluded that his breach of contract claim failed because “good cause” existed
for Floyd’s termination under Miss. Code Ann. § 37-9-59. The School Board was
justified in firing Floyd for “incompetence” and “neglect of duty” in his handling
of the school’s records and scheduling. Miss. Code Ann. § 37-9-59. The district
court did not err in dismissing Floyd’s claim of intentional infliction of emotional
distress because the defendants’ alleged conduct does not rise to the level of
outrageousness required to support such a claim. Peoples Bank & Trust Co. v.
Cermack, 658 So.2d 1352, 1365 (Miss. 1995). Floyd’s claim of civil conspiracy
fails because the defendants are part of one large corporate entity, and a claim
of conspiracy cannot be based on alleged interference with a contract between
Floyd and themselves. Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994);
Frye v. Am. Gen. Fin., Inc., 307 F.Supp. 2d 836, 843-44 (S.D. Miss. 2004); Cenac
v. Murray, 609 So.2d 1257, 1269 (Miss. 1992). Floyd’s claim of trespass to
chattels based on the allegation that his replacement threw away items he left
in his office upon being suspended is frivolous. The defendants had no obligation
to care for the items Floyd left behind.
VII.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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