IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-CA-00825-SCT
GENE JONES, ASHLEY CRAFT, RALPH SCOTT,
HARDY GORDON, JAMES WILLIAMS AND
REGGIE WILLIAMS
v.
FLUOR DANIEL SERVICES CORPORATION
DATE OF JUDGMENT: 03/22/2005
TRIAL JUDGE: HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED: JASPER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: THOMAS QUITMAN BRAME, JR.
ATTORNEY FOR APPELLEE: STEVE J. ALLEN
NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
DISPOSITION: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 06/21/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1. This case comes to this Court on appeal from the Jasper County Circuit Court’s grant
of Fluor Daniel Services Corporation’s Motion for Summary Judgment dismissing the
plaintiffs’ claims of breach of covenant of good faith and fair dealing, wrongful termination,
and intentional infliction of emotional distress with prejudice. We affirm in part and reverse
and remand in part.
FACTS
¶2. The plaintiffs in this case, all black males, were employees of Fluor Daniel Services
Corporation (Fluor Daniel) in the late summer and early fall of 2001. While under Fluor
Daniel’s employ, the plaintiffs worked directly for a supervisor named Rudy Amaro.1 The
plaintiffs allege a number offenses were committed by Amaro, but the crux of this action was
based on one incident.
¶3. Before each workday, Amaro would meet with all of his laborers and give them their
assignments and instructions for the day. From the deposition testimony, it seems as though
the crew under Amaro consisted of mostly black and Mexican men. 2 Amaro would give
instructions to the black laborers first in English, and then he would give the Mexican
workers their instructions in Spanish. The deposition testimony as to what exactly transpired
on the day in question differs in slight detail from plaintiff to plaintiff, but it is undisputed
that while giving the Mexican workers their instructions in Spanish, Amaro said the word
“monkey” in English. All of the plaintiffs testified that they heard this. Gene Jones
confronted Amaro, asking him to repeat what he had said. After resisting momentarily,
Amaro admitted to having said something along the lines of “the monkeys could go to work
or go to the rope.” All of the plaintiffs testified that after revealing what he had said to the
Mexicans in Spanish, Amaro told them that someone in the office had told him to say that.
The plaintiffs believed that this was a racial slur being used in a joke at their expense.
1
Amaro was a named defendant in this action, but he was never served.
2
It is also clear that Amaro himself was Mexican.
2
¶4. Jones was terminated several days after the “monkey” incident. It was his belief that
he was terminated because he confronted Amaro and because he complained to other
supervisors about Amaro’s comment. James Williams, who was fired around the same time
as Jones, also testified that he believed that he was terminated “because [Amaro] thought
[Williams] had went to the office on him.”
¶5. Reggie Williams was laid off in February 2002. He admitted in his deposition that
he was laid off because there was no work for him to do. However, he was rehired by Fluor
Daniel on another project some months later. He claims that his ultimate termination was
due to his complaints about Amaro’s behavior.
¶6. Hardy Gordon, Ralph Scott and Ashley Craft were also terminated months after the
incident. Gordon admitted that his quality of work has been consistently criticized and that
his termination might have been due to that. Scott claims that he was fired because he
complained about Amaro’s behavior, but offered no evidence to back up his assertion. Craft
testified that he never complained to anyone about Amaro’s behavior and that all of the
complaints that he had were about the job itself and those were addressed to Amaro. When
asked why he thought he was terminated, his answers revealed that he was unsure.
¶7. In addition to this incident, all six plaintiffs complained of other alleged racially-
motivated actions on the part of Amaro and Fluor Daniel. The main complaint mentioned
throughout the depositions was that the black workers were often separated from the Mexican
workers. The plaintiffs also believed that they were given harder jobs than their Mexican
counterparts. Additionally, there were complaints about not giving black employees their
paychecks until the end of the day when the other workers were allegedly given their
3
paychecks earlier in the day. The plaintiffs generally allege that favoritism was shown to the
Mexican workers and that the black employees were treated unfairly because of their race.
COURSE OF PROCEEDINGS
¶8. This action was commenced on April 4, 2003, in the Circuit Court of Jasper County.
On October 30, 2003, a Second Amended Complaint was filed. Depositions were taken of
all six plaintiffs, and thereafter, Fluor Daniel moved for summary judgment. The Circuit
Court of Jasper County issued a written opinion and order granting Fluor Daniel’s motion
on March 22, 2005, and final judgment with prejudice was entered that same day. This
appeal was filed on April, 9, 2005.
STANDARD OF REVIEW
¶9. It is well-settled that this Court applies a de novo standard of review to the grant or
denial of summary judgment by a trial court. Leffler v. Sharp, 891 So. 2d 152, 156 (Miss.
2004). Considered in the light most favorable to the nonmoving party, if there are no
genuine issues of material fact, and the moving party is entitled to judgment as a matter of
law, summary judgment is appropriate. Miss. R. Civ. P. 56(c); Russell v. Orr, 700 So. 2d
619, 622 (Miss. 1997).
DISCUSSION
I. WHETHER THE CIRCUIT COURT ERRED IN DISMISSING
THE PLAINTIFFS’ WRONGFUL DISCHARGE CLAIMS.
¶10. It is undisputed in this case that the plaintiffs were at-will employees of Fluor Daniel.
An at-will employment contract may be terminated at any time, by either party to the
contract. However, two narrow exceptions exist to this longstanding, common-law rule.
4
Where an employee is terminated because: (1) he or she has refused to participate in an
illegal activity, or (2) he or she has reported an illegal activity of the employer to the
employer or to anyone else, a suit for wrongful discharge may be maintained despite the at-
will status of the employee. Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So. 2d
845 (Miss. 2001). The plaintiffs claim that the latter of these two exceptions applies in this
case.
¶11. Plaintiffs claim that they were discharged for reporting the illegal activities of Fluor
Daniel. In support of this allegation, the plaintiffs cite two statutes which they claim Fluor
Daniel violated. The first of these is a disturbance of the peace statute, Miss. Code Ann. §
97-35-15 (Rev. 2006).3 The second is a provoking breach of peace statute, Miss. Code Ann.
§ 97-35-3 (Rev. 2006).4 The plaintiffs claim that the alleged conduct of Rudy Amaro
violated these statutes, that each of them was terminated for reporting that conduct, and
therefore, the exception to the at-will employment doctrine should apply.
3
“(1) Any person who disturbs the public peace, or the peace of others, by violent,
or loud, or insulting, or profane, or indecent, or offensive, or boisterous conduct or language,
or by intimidation, or seeking to intimidate any other person or persons, or by conduct either
calculated to provoke a breach of the peace, or by conduct which may lead to a breach of the
peace, or by any other act, shall be guilty of a misdemeanor, and upon conviction thereof,
shall be punished by a fine of not more than Five Hundred Dollars ($ 500.00) or by
imprisonment in the county jail not more than six (6) months, or both. . .”
4
“(1) Whoever with intent to provoke a breach of the peace, or under circumstances
such that a breach of the peace may be occasioned thereby: . . .
(b) Insults or makes rude or obscene remarks or gestures, or uses profane
language, or physical acts, or indecent proposals to or toward another or
others, or disturbs or obstructs or interferes with another or others. . .”
5
¶12. In support of their claim, Plaintiffs cite McArn v. Allied Bruce-Terminix Co., 626 So.
2d 603 (Miss. 1993). In McArn, the plaintiff, a former at-will employee of Terminix,
alleged that he was terminated because he reported conduct of Terminix which constituted
a crime under Miss. Code Ann. § 97-19-39 (Rev. 2006) and Miss. Code Ann. § 69-23-19
(Rev. 2005).5 The plaintiff claimed that he was required to falsify reports and that he was
required to charge customers the full price for treatment and tell them it was complete when
he and the company both knew that the treatment was incomplete and not up to the required
standards. Id. at 605. This Court reversed the summary judgment in favor of Terminix and
remanded the issue of wrongful discharge to the trial court. Id. at 607.
¶13. As in McArn, the “reporting of illegal acts” exception to the at-will employment
doctrine has been applied only when the illegal act actually had something to do with the
business itself. See Willard v. Paracelsus Health Care Corp., 681 So. 2d 539 (Miss. 1996)
(employees fired for reporting forgeries and financial irregularities in business records). In
this case, even if it was found that Amaro had violated one of the statutes cited by the
plaintiffs, this issue does not rise to the level necessary to fit into the very narrow exceptions
to the employment-at-will doctrine. The alleged “breach of the peace” had nothing to do with
the business of Fluor Daniel.
¶14. Furthermore, there is no evidence that Amaro’s conduct was reported because it was
illegal. The deposition testimony makes very clear that Amaro’s comments and behavior
merely bothered the plaintiffs, not that they ever considered the conduct to be criminal. We
5
McArn, 626 So. 2d at 606. These statutes deal with receiving money under false
pretenses and violating state pest control regulations.
6
find that this is not a situation which would merit an exception to the longstanding
employment-at-will doctrine. Therefore, this issue has no merit.
II. WHETHER THE CIRCUIT COURT ERRED IN DISMISSING
PLAINTIFFS’ FEDERAL LAW CLAIMS.
¶15. On appeal, the plaintiffs assert that the trial court erred in dismissing their federal law
claims. However, the plaintiffs did not assert any federal law claims in their second amended
complaint, and the trial court expressly noted this fact. We do not consider issues raised for
the first time on appeal. Accordingly, we decline to address this issue. Anglin v. Gulf
Guaranty Life Ins. Co., No. 2005-CA-02082-SCT Miss. LEXIS (2007) (citing Alexander
v. Daniel, 904 So. 2d 172, 183 (Miss. 2005))
III. WHETHER THE CIRCUIT COURT ERRED IN DISMISSING
PLAINTIFFS’ CLAIMS OF INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS.
¶16. The plaintiffs allege that a number of acts by Fluor Daniel warrant recovery for
intentional infliction of emotional distress. The main actions, as portrayed in the depositions,
include: Amaro saying that “the monkeys could go to work or go to the rope;” segregation
of black and Mexican employees; and requiring the black workers to do harder manual labor
than the Mexican laborers. Some of the plaintiffs claim that this conduct by Fluor Daniel
caused them distress which has manifested itself in physical injury, including sleepless
nights, headaches, depression, and sexual difficulty. However, even without physical
manifestation of an emotional injury, some of the conduct of Amaro and Fluor Daniel may
rise to the level necessary to maintain an action for intentional infliction of emotional
distress.
7
¶17. In Smith v. Malouf, this Court stated that:
[w]here there is something about the defendant’s conduct that evokes outrage
or revulsion, done intentionally–or even unintentionally yet the results being
reasonably foreseeable–courts can in certain circumstances comfortably assess
damages for mental and emotional distress even though there has been no
physical injury. In such instances, it is the nature of the act itself–as opposed
to the seriousness of the consequences–which gives impetus to legal redress.
722 So. 2d 490, 497 (Miss. 1998) (citing Leaf River Forest Prods., Inc. v. Ferguson, 662
So. 2d 648, 658 (Miss. 1995)). This Court must look at the nature of the acts of Fluor Daniel
as alleged by the plaintiffs and decide whether they evoke outrage or revulsion.
¶18. We must answer the question of whether a reasonable juror could find that Amaro’s
comment to a group of black workers (“you monkeys can go to work or go to the rope”) was
patently a racial slur constituting outrageous and revolting conduct.
¶19. This Court has dealt with issues of racism in a work environment before. In
Richmond v. Mississippi Department of Human Services, this Court was faced with the
question of whether an employee’s use of the word “nigger” in reference to a black coworker
created a hostile work environment and merited that employee’s dismissal. Richmond, 745
So. 2d 254 (Miss. 1999). Part of the employee’s defense was that she was using the term in
a joking manner and that workers in that particular office often joked about racial issues. Id.
at 262 (Banks, J., concurring in part and dissenting in part). While not directly on point with
the case at bar, language in Justice Banks’s separate opinion does offer guidance: “While the
alleged joking in the DeSoto County office regarding the differences between black and
white people may not in and of itself be enough to constitute a racially hostile environment,
when coupled with the racial slur or slurs uttered by Bonnie Richmond, such conduct may
8
have been enough to do so.” Id. (internal citation omitted). Returning to the case at bar, we
note that referring to a group of black employees as “monkeys,” while terrible on its own,
could possibly be passed off as a tasteless joke. However, as in Richmond, that insult
coupled with an apparent reference to lynching could permit a reasonable juror to conclude
that this comment was outrageous and revolting. Id. at 262.
¶20. We also note that several of our sister states have addressed such issues. In Taylor
v. Metzger, the New Jersey Supreme Court addressed whether an employer’s use of the term
“jungle bunny” against a black employee rose to the level of extreme and outrageous
conduct. Taylor,152 N.J. 490 ( N.J. 1998). The Court stated, “[w]e do not hold that a single
racial slur spoken by a stranger on the street could amount to extreme and outrageous
conduct. But, a jury could reasonably conclude that the power dynamics of the workplace
contribute to the extremity and the outrageousness of the defendant’s conduct.” Id. at 511.
“Therefore, the fact that defendant uttered only one slur toward plaintiff does not, as a matter
of law, preclude his conduct from being extreme and outrageous.” Id. at 512.
¶21. The Louisiana Supreme Court also has pointed out the special circumstances of
incidents arising between supervisors and employees in the workplace: “A plaintiff’s status
as an employee may entitle him to a greater degree of protection from insult and outrage by
a supervisor with authority over him than if he were a stranger.” White v. Monsanto Co., 585
So. 2d 1205, 1210 (La. 1991). Other jurisdictions have dealt with similar issues. See
Contreras v. Crown Zellerbach Corp., 565 P.2d 1173, 1176 (Wash. 1977) (stating that one
in position of authority over another making racial slurs and jokes gives added impetus to
claim of outrageous behavior).
9
¶22. Fluor Daniel claims that the plaintiffs have offered no admissible evidence of
vicarious liability on the part of Fluor Daniel for the comment made by Rudy Amaro.
However, the plaintiffs claim that, immediately after making the comment, Amaro said that
someone in the main office had told him to make the statement. Fluor Daniel argues that
Amaro’s statement is hearsay and would not be admissible at trial. However, we find that
Amaro’s statement would be admissible under M.R.E. 801(d)(2)(D) as an admission by a
party opponent. Therefore, viewing this evidence in the light most favorable to the plaintiffs,
as we must, we find evidence sufficient to defeat a motion for summary judgment on this
issue.
¶23. The allegations of segregation of black and Mexican workers also present an issue to
be considered. Certainly, there could be good reason for separating these groups of workers;
the Mexicans spoke very little English, and it might have been easier just to let them work
in separate groups. However, the record reflects that the plaintiffs also testified that they
were forced to work harder jobs than the Mexican workers. If this is true (and for the
purposes of summary judgment we must view the evidence in the light most favorable to the
plaintiffs), this also could rise to the level of outrageous conduct. A jury could reasonably
conclude that showing a preference for one race at the expense of another is outrageous
conduct.
¶24. In viewing the record in its entirety in the light most favorable to the plaintiffs, we
find there is enough evidence to maintain a cause of action for intentional infliction of
emotional distress. A reasonable juror could conclude that Amaro’s actions were intentional
10
and the results reasonably foreseeable. We hold that the plaintiffs should be afforded their
day in court.
CONCLUSION
¶25. We find that the trial court erred in granting summary judgment as to the plaintiffs’
intentional infliction of emotional distress claims. Therefore, the judgment of the Circuit
Court of Jasper County is reversed with respect to that claim and this case is remanded in part
for proceedings on that claim consistent with this opinion. The trial court’s judgment is
affirmed in all other aspects.
¶26. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
WALLER, P.J., CARLSON, GRAVES, DICKINSON, RANDOLPH AND
LAMAR, JJ., CONCUR. DIAZ, P.J., CONCURS IN RESULT ONLY. EASLEY, J.,
CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN
OPINION.
11
Gene Jones v. Fluor Daniel Services Corporation
Combined Opinion