Russell v. City of Tupelo, Mississippi

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

ABERDEEN DIVISION

MICHAEL RUSSELL PLAINTIFF

V. CIVIL ACTION NO. 1:20-CV-3-SA-DAS

CITY OF TUPELO, MISSISSIPPI, et al. DEFENDANTS

ORDER AND MEMORANDUM OPINION

Michael Russell commenced this action by filing his Complaint [1] on January 3, 2020. On

December 31, 2020, the Defendants filed a Motion for Summary Judgment [68], requesting

dismissal of all claims. The Motion [68] has been fully briefed, and the Court, having reviewed

the parties’ submissions and the applicable law, is prepared to rule.

Relevant Factual and Procedural Background

Michael Russell, a white male, formerly worked as a police officer for the City of Tupelo

Police Department. Russell began working for the Police Department as a patrol officer on April

11, 1997. During the time period of 1997 through 2005, Russell was transferred within the

Department multiple times, including a transfer to the Special Operations Division in 2000 and a

transfer back to the Patrol Division in 2002.

In 2005, the City of Tupelo initiated the Tupelo Police Athletic League (“PAL”). PAL’s

mission is to build relationships and trust between the community and the Police Department. To

achieve this mission, PAL hosts a variety of competitive athletic programs and other events. In the

Fall of 2005, Russell was transferred to fill the newly created position of Executive Director of the

PAL Program. Russell states that he “found his work at PAL to be the most satisfying work any

police officer could do.” [28], p. 3.

When Russell first assumed the Executive Director role, it was a full-time position.

However, as additional support staff was added, in 2014, the Department decided to reorganize its

PAL staffing by creating a Lieutenant position which would serve part-time as the Executive

Director and part-time as the direct supervisor over reserves and school resource officers. Russell

was awarded the position, thereby receiving a promotion to the rank of Lieutenant.

In early 2018, Lieutenant James Hood, a non-party to this action, retired from his position

in the Patrol Division. Another officer in the Patrol Division, Sergeant James King, also announced

his retirement around the same time. Thus, both a Lieutenant position and a Sergeant position

within the Patrol Division were vacant.1

When the two aforementioned positions became vacant, Sergeant Tiffany Gilleylen, an

African American female, worked in the Patrol Division. Gilleylen initially began working for the

Tupelo Police Department in 1999. In 2015, prior to the events giving rise to the present action,

she applied for a Patrol Sergeant position but did not receive the promotion. Thereafter, she filed

suit against the City of Tupelo, alleging that the failure to promote her was racially motivated. The

parties ultimately entered into a settlement agreement, one term of which required that the City

establish objective criterion to be implemented into the Police Department’s promotion system.

The settlement agreement was entered into only a short period of time before Lieutenant Hood and

Sergeant King’s retirements. According to Russell, when Lieutenant Hood and Sergeant King’s

positions became vacant, the “natural progression would have been to promote officers within the

department to fill these two (2) vacancies.” [75], p. 6.

On February 23, 2018, Chief Aguirre and Deputy Chief Gilbert circulated to all Tupelo

Police Department employees a Memorandum, which stated as follows:

1 For the sake of clarity, the Court notes that, at this point in time and at all times pertinent to this action,

Bart Aguirre held the position of Chief of Police and Allan Gilbert held the position of Deputy Chief.

Effective March 7, 2018

Sergeant Brett Moyer will temporarily transfer to Patrol and will be

assigned to Adam Shift.

Effective March 14, 2018

Lieutenant [Michael] Russell will temporarily transfer to Patrol and will be

assigned to Edward Shift.

[74], Ex. 17.

The Department did not open the vacant Lieutenant position for applications but, instead,

Chief Aguirre, consistent with the language contained in the Memorandum above, filled the

position by transferring Russell to the Patrol Division. Chief Aguirre stated that he decided to do

so because he believed that Russell’s leadership skills were needed in the Patrol Division and

because he did not believe the current shift Sergeants at that time, including Sergeant Gilleylen,

were ready to assume senior leadership positions. Although the Memorandum indicated that the

transfer was temporary, Russell contends that it was temporary in name only, as there was no

indication that he would be able to revert back to his old position. Furthermore, he asserts that

“[t]he claim in the transferring email that the transfers were ‘temporary’ is contradicted by the fact

that when Russell finally left in October, the City kept [Sergeant Brett Moyer] in Patrol and even

promoted him to the position of lieutenant over Gilleylen.” [75], p. 15. Additionally, Sergeant

Moyer testified that Major Jackie Clayton informed him that his transfer to the Patrol Division

“was not temporary, it was permanent.” [74], Ex. 18, p. 13.

After being notified of his transfer to the Patrol Division, Russell met with Chief Aguirre

and expressed his desire to continue working as Executive Director of PAL. According to Chief

Aguirre, he “assured [Russell] that his PAL duties would remain as before. During this initial

meeting, Aguirre also explained that he needed Russell’s leadership in Patrol and that the transfer

would benefit his chances for advancement in the Department.” [69], p. 5. Russell contends that

he did not think that he, having been out of the Patrol Division for twelve years, was the best fit

for the job and further contended that he “believed that he was a pawn to block Gilleylen’s

promotion.” [75], p. 9. Russell further asserts that this opinion was widely shared within the entire

Department. Shortly after the transfer occurred, Gilleylen filed a Charge of Discrimination with

the EEOC, alleging that the decision to transfer Russell to the Patrol Division instead of promoting

her was motivated by race. Gilleylen also states in her Affidavit that, in making the decision to

transfer Russell, the City did not utilize the objective criterion which should have been

incorporated following the resolution of her prior lawsuit. See [74], Ex. 26, p. 3.2

After meeting with Chief Aguirre, Russell scheduled a meeting with City of Tupelo Mayor

Jason Shelton to discuss the transfer. During this meeting, Russell expressed to Mayor Shelton his

dissatisfaction with the transfer and his desire to continue working with PAL. Russell alleges that

while Mayor Shelton stated that he agreed with his position, Mayor Shelton took a “hands off”

approach and no responsive action was taken.

Russell also alleges that Deputy Chief Gilbert harbored personal animosity toward him,

which negatively impacted the functioning of the Police Department as a whole and Russell’s

ability to perform his individual job duties. For example, Russell contends that, despite being

informed that he could continue to work with the PAL Program, Deputy Chief Gilbert became

angry toward him every time he did so. Also, he asserts that Deputy Chief Gilbert refused to

communicate with him, thereby making it impossible for him to effectively perform his Patrol

Division duties.

Although Chief Aguirre stated that he wanted Russell to continue working with PAL,

Russell contends that the role of Lieutenant “in charge of all Tupelo Patrol officers during a twelve-

2 Gilleylen retired from the Tupelo Police Department on August 30, 2019. See [74], Ex. 26, p. 3.

hour shift” conflicted with his ability to do so. See [75], p. 8. Russell testified at his deposition that

he knew being both an adequate Lieutenant over the Patrol Division and effectively assisting with

PAL would be impossible. He attempted to perform both jobs for several months but contends that

he was met with resistance by Deputy Chief Gilbert every time he attempted to participate in PAL

activities. After meeting with Mayor Shelton on multiple additional occasions and no

improvements being made to his working situation, Russell resigned from the Department

effective October 2018. As stated by Russell, “[t]rying to perform both jobs was a ‘set up to fail.’”

[75], p. 12.

On January 3, 2020, Russell commenced this action. See [1]. In his Amended Complaint

[28], he names the City of Tupelo, Chief Aguirre (in his individual capacity), and Deputy Chief

Gilbert (in his individual capacity) as Defendants. Pursuant to 42 U.S.C. § 1983, Russell asserts

claims for discrimination under 42 U.S.C. § 1981 and the Equal Protection Clause of the

Fourteenth Amendment. He also asserts a claim under Title VI of the Civil Rights Act of 1964.

Finally, Russell alleges a state law claim for intentional interference with contractual relations

against Deputy Chief Gilbert only. In the present Motion [68], the Defendants request that the

Court grant summary judgment in their favor on all claims.

Summary Judgment Standard

Summary judgment is warranted when the evidence reveals no genuine dispute regarding

any material fact, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P.

56(a). Rule 56 “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.” Nabors v. Malone, 2019 WL 2617240 at *1 (N.D. Miss. June 26, 2019) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

“The moving party ‘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. (quoting Celotex, 477 U.S. 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. (quoting Celotex, 477 U.S. at 324). Importantly, “the

inferences to be drawn from the underlying facts contained in the affidavits, depositions, and

exhibits of record must be viewed in the light most favorable to the party opposing the motion.”

Waste Management of Louisiana, LLC v. River Birch, Inc., 920 F.3d 958, 964 (5th Cir. 2019)

(quoting Reingold v. Swiftships, Inc., 126 F.3d 645, 646 (5th Cir. 1997)). However, “[c]onclusory

allegations, speculation, unsubstantiated assertions, and legalist arguments are not an adequate

substitute for specific facts showing a genuine issue for trial.” Nabors, 2019 WL 2617240 at *1

(citing TIG Ins. Co. v. Sedgewick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002)) (additional

citations omitted).

Analysis and Discussion

Pursuant to Section 1983, Russell has asserted claims for liability under 42 U.S.C. § 1981

and the Equal Protection Clause. Additionally, he has asserted a claim pursuant to Title VI of the

Civil Rights Act of 1964 and a separate state law claim against only Deputy Chief Gilbert.

However, prior to addressing the merits of those claims, the Court feels compelled to address

Russell’s standing to bring this action, considering that Russell does not contend that he himself

was discriminated against on the basis of his race but, rather, that the City’s discrimination toward

another employee, Tiffany Gilleylen, negatively impacted the terms and conditions of his

employment.

I. Standing

As noted above, Russell does not allege that he was discriminated against because of his

race. In fact, he admits that “the discriminatory animus was aimed at Gilleylen, not Russell.” [75],

p. 13. The Court will therefore consider at the outset whether Russell possesses standing to bring

this action.

The Court first turns to the Supreme Court’s decision in Thompson v. North American

Stainless, LP, 562 U.S. 170, 131 S. Ct. 863, 178 L. Ed. 2d 694 (2011). In Thompson, the plaintiff

and his fiancé were both employees of North American Stainless. Id. at 172. The plaintiff’s fiancé

filed an EEOC Charge against North American, and the plaintiff was terminated by North

American three weeks later. Id. The plaintiff then filed suit, averring that North American

improperly retaliated against him in violation of Title VII. Id. North American argued that the

plaintiff, as a third party who did not file the charge of discrimination, lacked standing. Id.

Considering the standing issue, the Supreme Court noted two potential outcomes on

opposite ends of the spectrum. Id. at 176. The Court first explained that “minimal Article III

standing, which consists of injury in fact caused by the defendant and remediable by the court[]”

was on one end of the spectrum. Id. The problem, however, as the Supreme Court noted is that

“[i]f any person injured in the Article III sense by a Title VII violation could sue, absurd

consequences would follow. For example, a shareholder would be able to sue a company for firing

a valuable employee for racially discriminatory reasons, so long as he could show that the value

of his stock decreased as a consequence.” Id. at 176-77.

On the other hand, the Supreme Court considered North American’s argument that

Congress intended for Title VII to only cover the person who engaged in the protected activity. Id.

at 177. The Supreme Court rejected this argument, specifically looking to the language of the

statute which in pertinent part permits “a person claiming to be aggrieved” by an unlawful

employment practice to initiate a civil action against the employer. Id. at 173. The Court

particularly noted that, had Congress intended for standing to be limited in the fashion suggested

by North American, “it would more naturally have said ‘person claiming to have been

discriminated against’ rather than ‘person claiming to be aggrieved.’ We see no basis in text or

prior practice for limiting the latter phrase to the person who was the subject of unlawful

retaliation.” Id. at 177.

Striking a balance between these two extremes, the Supreme Court adopted the “zone of

interests” test, which had previously been applied in suits involving the Administrative Procedure

Act and authorizes suits to challenge a federal agency by any “person . . . adversely affected or

aggrieved . . . within the meaning of a relevant statute.” Id. (quoting 5 U.S.C. § 702). The Court

further noted:

We have held that this language establishes a regime under which a plaintiff may

not sue unless he ‘falls within the “zone of interests” sought to be protected by the

statutory provision whose violation forms the legal basis for his complaint. We have

described the ‘zone of interests’ test as denying a right of review ‘if the plaintiff’s

interests are so marginally related to or inconsistent with the purposes implicit in

the statute that it cannot reasonably be assumed that Congress intended to permit

the suit. We hold that the term ‘aggrieved’ in Title VII incorporates this test,

enabling suit by any plaintiff with an interest ‘arguably sought to be protected by

the statute,’ while excluding plaintiffs who might technically be injured in an

Article III sense but whose interests are unrelated to the statutory prohibitions in

Title VII.

Id. at 177-78.

Applying the “zone of interests” test, the Court found that the plaintiff’s interests were

protected by Title VII. Particularly, the Court held:

Thompson was an employee of [North American], and the purpose of Title VII is

to protect employees from their employers’ unlawful actions. Moreover, accepting

the facts as alleged, Thompson is not an accidental victim of the retaliation—

collateral damage, so to speak, of the employer’s unlawful act. To the contrary,

injuring him was the employer’s intended means of harming [his fiancé].

Id. at 178.

The Fifth Circuit recently applied the “zone of interests” test in a similar context. See

Simmons v. UBS Fin. Servs., Inc., 972 F.3d 664 (5th Cir. 2020). In Simmons, the plaintiff

(Simmons) was employed by Prelle Financial Group as a third-party wholesaler of life insurance

products to clients of UBS Financial Services. Id. at 665. Simmons’ daughter, Jo Aldridge, was

employed by UBS. Id. However, Aldridge claimed she was subjected to discrimination and filed

a charge with the EEOC; she later resigned from her position and settled her claims. Id. Over the

following months, Simmons’ third-party relationship with UBS began to fall apart. Id. Simmons

contended that “in retaliation for his daughter’s complaints, UBS . . . eventually forbade him from

doing business with its clients [which] effectively ended [his] employment at Prelle Financial[.]”

Id. Simmons filed suit against UBS under Title VII, asserting that UBS “retaliated against his

daughter by taking adverse actions against him.” Id.

The sole issue on appeal was whether Simmons, a nonemployee, could sue under Title VII

as the intentional target of the retaliation against his daughter. Id. at 666. The Fifth Circuit

ultimately held that Simmons lacked standing, specifically finding that “the purpose of Title VII

is to protect employees from their employers’ unlawful actions. . . It would be a remarkable

extension of Thompson—and of Title VII generally—to rule that a nonemployee has the right to

sue. The zone of interests that Title VII protects is limited to those in employment relationships

with the defendant.” Id. at 668 (quoting Thompson, 562 U.S. at 178) (emphasis added).

Recognizing that Thompson and Simmons analyzed standing in the context of Title VII and

Russell brought his claims pursuant to 42 U.S.C. § 1981 and the Equal Protection Clause (not Title

VII), this Court notes that the Fifth Circuit has reiterated on multiple occasions that “[t]he analysis

of discrimination claims under § 1981 is identical to the analysis of Title VII claims.” See, e.g.,

Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 386 (5th Cir. 2017) (citing Jones

v. Robinson Prop. Grp. L.P., 427 F.3d 987, 992 (5th Cir. 2005)). Thus, this distinction is not

critical. Furthermore, the Fifth Circuit recently set forth the test for statutory standing in the context

of Section 1981 claims, specifically opining as follows:

A plaintiff has statutory standing under [Lexmark International, Inc. v. Static

Control Components, Inc., 572 U.S. 118, 124 S. Ct. 1377, 188 L. Ed. 2d 392 (2014)]

if it “falls within the class of plaintiffs whom Congress has authorized to sue under”

a substantive statute. When assessing standing . . ., we look to (1) whether the

plaintiff falls within the statute’s “zone of interests” and (2) whether the plaintiff’s

alleged injuries were “proximately caused by violations of the statute.”

White Glove Staffing, Inc. v. Methodist Hospitals of Dallas, 947 F.3d 301, 307 (5th Cir. 2020)

(internal citations omitted).

In White Glove, the Fifth Circuit considered whether a corporation (White Glove), which

was a staffing company that provided staffing to a client under a prospective contract, had statutory

standing to sue when the client (Methodist Hospitals) purportedly racially discriminated against

the provided staff member and terminated the prospective contract with White Glove. Id. at 304.

White Glove alleged a violation of Section 1981 against Methodist; however, Methodist argued

that only the individual staff member, not White Glove, had standing to sue. Id.

Applying the “zone of interests” test to determine whether White Glove possessed

standing, the Fifth Circuit first looked to the language of Section 1981. Id. at 307. The Fifth Circuit

ultimately found that White Glove satisfied the “zone of interests” test, specifically finding that

Methodist allegedly “impinged on its right to contract” and that its claim was not “so marginally

related to or inconsistent with the purposes implicit in § 1981 that it cannot be reasonably assumed

that Congress authorized White Glove to sue.” Id. at 307-08 (citing Lexmark, 572 U.S. at 130).

The Fifth Circuit also found that the second prong of the applicable test was satisfied, as the

termination of its prospective contract was proximately caused by the purportedly discriminatory

behavior. Id. at 308.

In the case at bar, the Court’s analysis as to whether Russell has standing to pursue his

Section 1981 claim is guided by the same two-prong test applied by the Fifth Circuit in White

Glove. Thus, the Court first turns to whether Russell falls within the statute’s zone of interests. In

doing so, the Court notes that Russell was allegedly utilized as a “pawn” to further the

Department’s discriminatory scheme against Gilleylen. Russell was not a bystander or a third party

but, rather, was employed by the Police Department. In the Court’s view, this factor differentiates

Russell’s case from Simmons, where the Fifth Circuit determined that a nonemployee was not

covered by Title VII. This Court finds this distinction critical. Viewing the evidence in the light

most favorable to Russell, he was subjected to an adverse employment action because his employer

sought to discriminate against a co-employee. The Court finds that this employment action, and

the resulting harm to Russell, is not “so marginally related to or inconsistent with the purposes in

§ 1981 that it cannot be reasonably assumed that Congress intended [Russell to have standing] to

sue.” White Glove, 947 F.3d at 307-08.

As to the second prong, the Court has no trouble finding that Russell’s alleged harm—

being subjected to an adverse transfer and ultimately constructively discharged—has a

“sufficiently close connection” to the type of conduct that § 1981 prohibits. Id. at 308. In reaching

this finding, the Court notes that, though Russell was admittedly not discriminated against because

of his race, he does allege a tangible impact on his employment which was allegedly adverse and

allegedly motivated by race. This distinguishes Russell from any other employee of the Police

Department. In other words, permitting Russell to bring this action would not open the floodgates

for every single employee of the Police Department to bring a discrimination suit since Russell

can point to a tangible employment action that was taken in relation to his employment. See, e.g.,

Jackson v. Deen, 959 F. Supp. 2d 1346, 1354 (S.D. Ga. 2013) (declining to recognize standing in

Title VII when the plaintiff’s purported injury was the deprivation of “harmonious working

relationships with her African-American subordinates”). Additionally, the Court finds that

allowing this action to proceed will not create precedent for the type of “absurd” results which the

Supreme Court specifically sought to avoid in Thompson. See Thompson, 562 U.S. at 176-77.

In light of the foregoing, the Court finds that the applicable test is satisfied and specifically

holds that Russell’s purported injury falls within the “zone of interests” which Congress sought to

protect. In reaching this conclusion, the Court further emphasizes that the “zone of interests” test

is “not especially demanding.” White Glove, 947 F.3d at 307. Although recognizing that this case

is not synonymous to the typical employment discrimination case, the Court finds that Russell

possesses standing. Having done so, the Court will turn to the merits of his claims and the

arguments for dismissal raised by the Defendants.

II. Section 1983 Claims

“Regarding Section 1983, the United States Supreme Court has held that the statute’s ‘very

purpose . . . was to interpose the federal courts between the States and the people, as guardians of

the people’s federal rights—to protect the people from unconstitutional action under color of state

law.’” Alexander v. McAdams, 2017 WL 5642328, *3 (N.D. Miss. Apr. 18, 2017) (quoting

Mitchum v. Foster, 407 U.S. 225, 242, 92 S. Ct. 2151, L. Ed. 2d 705 (1972)) (emphasis in original).

In order to state a claim under Section 1983, a plaintiff must “(1) allege he has been deprived of a

right secured by the United States Constitution or the laws of the United States; and (2)

demonstrate that the alleged violation was committed by a person acting under color of state law.”

Weeks v. Thompson, 2007 WL 316261, at *2 (N.D. Miss. Jan. 31, 2007) (citing Cornish v.

Correctional Services Corp., 402 F.3d 545, 549 (5th Cir. 2005)).

As noted above, Russell’s Section 1983 claims for liability under 42 U.S.C. § 1981 and the

Equal Protection Clause are asserted against the City of Tupelo and against Chief Aguirre and

Deputy Chief Gilbert (in their individual capacities). Undoubtedly, a different standard is

applicable to a Section 1983 claim against a municipality than is applicable to an individual

capacity claim against a law enforcement officer. See Weeks, 2007 WL 316261, at *2 (“Municipal

liability under section 1983 requires proof of (1) a policymaker, (2) an official policy, and (3) a

violation of constitutional rights whose ‘moving force’ is the policy or custom.”); Mangieri v.

Clifton, 29 F.3d 1012 (5th Cir. 1994) (holding that law enforcement officers are entitled to

qualified immunity “unless it is shown that, at the time of the incident, [the officer] violated a

clearly established constitutional right.”). Nevertheless, whether seeking to impose liability against

a municipality or an individual officer, a Section 1983 plaintiff must first allege that he has been

deprived of a right secured by the United States Constitution or federal law. Victoria W. v.

Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (holding that in order to establish a Section 1983

claim, there must be “a deprivation of a right secured by federal law[.]”).

While Chief Aguirre and Deputy Chief Gilbert have raised qualified immunity defenses

and the City of Tupelo asserts that Russell lacks sufficient evidence as to the imposition of

municipal liability, the Court will first address the merits of Russell’s claims that he was deprived

of rights secured by federal law and the United States Constitution.

A. Application of Burden-Shifting Framework

Although Russell has brought his claims under Section 1981 and the Equal Protection

Clause, the familiar McDonnell Douglas burden-shifting framework is applicable. See, e.g., Body

by Cook, 869 F.3d at 386 (“The analysis of discrimination claims under § 1981 is identical to the

analysis of Title VII claims.”); Mengistu v. Miss. Valley State Univ., 2017 WL 3880319, at *2 n.

2 (N.D. Miss. Sept. 5, 2017) (“The elements of the claims under Title VII and Section 1981 are

identical. We therefore evaluate both claims using the same analysis.”); Giles v. Shaw Sch. Dist.,

655 F. App’x 998, 1002 (5th Cir. 2016) (applying McDonnell Douglas burden-shifting framework

to Equal Protection claim in same fashion as with Title VII claim); Lee v. Conecuh Cty. Bd. of

Educ., 634 F.2d 959, 962 (5th Cir. 1981) (recognizing the application of McDonnell Douglas to

Equal Protection claims).

“To succeed on a claim for racial discrimination under Title VII or Section 1981, a plaintiff

may show a prima facie case either through direct evidence of discriminatory motive, or

circumstantial evidence under the McDonnell Douglas burden-shifting framework.” Mengistu,

2017 WL 3880319, at *2 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973)). “If a plaintiff creates a presumption of discrimination by

establishing a prima facie case, the burden then shifts to the employer to articulate a legitimate,

nondiscriminatory reason for its actions.” Id. (citing Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)). At this stage, the employer’s burden

is “one of production, not persuasion[,]” and it involves “no credibility assessment.” Id. (quoting

Reeves, 530 U.S. at 142; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 509, 509, 113 S. Ct. 2742, 125

L. Ed. 2d 407 (1993)). Then, if the employer sustains its burden, “the prima facie case is dissolved,

and a plaintiff . . . must establish either: (1) that the employer’s proffered reason is not true but is

instead a pretext for discrimination; or (2) that the employer’s reason, while true, is not the only

reason for its conduct, and another ‘motivating factor’ is the plaintiff’s protected characteristic.”

Id. (citing Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007); Rachid v. Jack in the

Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).

At the prima facie stage, Russell bears the burden of establishing that he “(1) suffered an

adverse employment action, (2) was qualified for the position at issue, (3) belongs to a protected

class, and (4) either received less favorable treatment than similarly situated employees outside

the protected class or was replaced by a person outside the protected class.” Jackson v. Lowndes

Cty. Sch. Dist., 126 F. Supp. 3d 772, 777 (N.D. Miss. 2015) (citing McCoy v. Shreveport, 492 F.3d

551, 556 (5th Cir. 2007)).

Russell argues that he “has made a prima facie case of race discrimination, since he has

proved that Gilleylen, a black person, was rejected for the position and that Russell, a white person,

was transferred into the position. Because Russell, a person who had not been in Patrol for twelve

(12) years was given the position, and a black person, who was the senior sergeant on the shift at

issue was denied the position, Gilleylen was rejected under circumstances which give rise to an

inference of unlawful discrimination.” [75], p. 13 (citations omitted).

The Defendants make two main arguments as it pertains to the prima facie case. First, they

contend that Russell’s transfer to the Patrol Division did not constitute an adverse employment

action. Second, they assert that Russell was not constructively discharged.

Regarding the first argument, “[f]or Title VII and § 1981 discrimination claims, we have

held that adverse employment actions consist of ‘ultimate employment decisions’ such as hiring,

firing, demoting, promoting, granting leave, and compensating.” Thompson v. City of Waco, Tex.,

764 F.3d 500, 503 (5th Cir. 2014) (citing McCoy, 492 F.3d at 560) (additional citations omitted);

see also Hernandez v. Rush Enterprises, Inc., 2020 WL 7396511, at *3 (E.D. Tex. Dec. 17, 2020)

(“Actionable adverse employment actions are generally limited to tangible employment actions

that constitute a significant change in employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a significant

change in benefits.”) (citations omitted). On the other hand, “[a]n employment action that does not

affect job duties, compensation, or benefits is not an adverse employment action.” Id. (citing

Pegram v. Honeywell, Inc., 361 F.3d 272, 281-82 (5th Cir. 2004)) (citation omitted).

“[A] transfer or reassignment can be equivalent of demotion, and thus constitute an adverse

employment action.” Id. (citing Alvarado, 492 F.3d at 612-15). “To be the equivalent to a

demotion, a transfer need not result in a decrease in pay, title, or grade; it can be a demotion if the

new position proves objectively worse—such as being less prestigious or less interesting or

providing less room for advancement.” Id. (citing Alvarado, 492 F.3d at 613). “Where the evidence

produces no objective showing of a loss in compensation, duties, or benefits, but rather solely

establishes that a plaintiff was transferred from a prestigious and desirable position to another

position, that evidence is insufficient to establish an adverse employment action.” Perkins v. City

of Greenwood, Miss., 2016 WL 1169499, at *3 (N.D. Miss. Mar. 22, 2016) (citations omitted).

Importantly, the transfer must be objectively worse and not solely based on the plaintiff’s

subjective preference. Id.; see also Munoz v. Seton Healthcare, Inc., 557 F. App’x 314, 319 (5th

Cir. 2014).

Russell alleges several ways in which the transfer negatively impacted his position and was

objectively worse than his previous position. Specifically, he contends the transfer was perceived

by many officers as a design to block the promotion of an African American; that Russell was

frustrated by trying to please two bosses with competing agendas; that he was not able to dedicate

as much of his time to the PAL program; that being transferred to a position where he was required

to report to Deputy Chief Gilbert negatively impacted him; that he was required to become re-

acclimated with Patrol since he had not been in that Department for twelve years; that he could not

adequately perform his duties in charge of Patrol and also adequately perform his duties as director

of PAL; and that the transfer had an observable effect on him, causing him to become depressed.

[75], p. 20-21.

Considering these arguments, the Court reiterates that the standard is an objective one, and

“a plaintiff’s subjective preference, for one position over another, or a mere change in schedule is

not enough.” Perkins, 2016 WL 1169499, at *4 (citing Thompson, 764 F.3d at 504-05; Alvarado,

492 F.3d at 613-14) (additional citations omitted). “Several factors the Fifth Circuit has considered

in reassignment claims include: change in title, loss of compensation, change in benefits, loss of

prestige, whether the new position is less interesting; loss of opportunity for advancement, and a

significant diminishment of material responsibilities.” Id. (citations omitted).

Many of Russell’s assertions, such as his inability to continue to pursue his passion of

furthering PAL or the fact that he did not want to spend time becoming reacclimated to the Patrol

Division, are mere subjective preferences that can easily be disregarded. On the other hand, the

record illustrates that, in his new role, Russell was essentially asked to continue directing the PAL

program while also serving as a Lieutenant in the Patrol Division. The Court finds this fact critical.

Though the parties have not provided any information indicating that Russell received a substantial

pay increase, or any increase in pay at all, he was required and expected to take on the

responsibilities associated with a Lieutenant in the Patrol Division while also leading the PAL

Program. Also, Major Clayton specifically testified as follows regarding the extensive

responsibilities that would be placed on Russell as a result of the transfer:

Q. You just expressed concerns about the PAL program?

A. I did. Because I knew that running a shift, I knew running a shift was going to

take a lot of time and a lot of energy, to put your energy into it. When you’re at

work, it’s 12 hours of keeping up with all your personnel, any memos that might

come down from other supervisors. And it seemed like to me and having had that

job, it has been a few years now, but having had that job for ten years myself, I

knew it was very time consuming.

. . .

Q. So you were concerned about the PAL program then? That was your concern?

A. I was concerned about the PAL program. I was concerned about whether or

not, not just Michael but anybody put in that position would be able to handle both

jobs.

[74], Ex. 2, p. 8-9 (emphasis added).

In the Court’s view, the additional expectations and duties which accompany trying to

effectively work in two different Departments could render Russell’s new position “objectively

worse.” See Thompson, 764 F.3d at 503. This is particularly true when considered in light of the

specific difficulties Russell faced in his dealings with Deputy Chief Gilbert. The Court finds that

Russell has come forward with sufficient evidence to create a genuine issue of material fact as to

whether the transfer constituted an adverse employment action.

As a second argument at the prima facie stage, the Defendants contend that Russell was

not constructively discharged. Regarding constructive discharge, the Fifth Circuit has explained:

The general rule is that if the employer deliberately makes an employee’s working

conditions so intolerable that the employee is forced into an involuntary

resignation, then the employer has encompassed a constructive discharge and is as

liable for any illegal conduct involved therein as if it had formally discharged the

aggrieved employee.

Keelan v. Majesco Software, Inc., 407 F.3d 332, 342 (5th Cir. 2005) (quoting Jurgens v. EEOC,

903 F.2d 386, 390 (5th Cir. 1990)). The test for constructive discharge is an objective one, which

mandates that the Court consider “whether a reasonable person in the plaintiff’s shoes would have

felt compelled to resign.” Id. (citing Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 297 n. 19

(5th Cir. 1994)); see also Clark v. Auger Servs., Inc., 443 F. Supp. 3d 685, 709 (M.D. La. 2020)

(quoting McKethan v. Texas Farm Bureau, 996 F.2d 734, 741 (5th Cir. 1993)) (“The working

conditions must have been ‘so difficult or unpleasant that a reasonable person in the plaintiff’s

shoes would have felt compelled to resign.’”). When considering whether a constructive discharge

occurred, courts consider various factors:

(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4)

reassignment to menial or degrading work; (5) badgering, harassment, or

humiliation by the employer calculated to encourage the employee’s resignation;

or (6) offers of early retirement that would make the employee worse off whether

the offer was accepted or not.

Clark, 443 F. Supp. 3d at 709 (quoting Barrow, 10 F.3d at 297; Edwards v. Smitty’s Supply, Inc.,

2016 WL 3667361, at *7 (E.D. La. July 11, 2016)).

Applying these factors to this case, the Court notes that the fifth factor is particularly

relevant.3 Specifically, Russell contends that Deputy Chief Gilbert often became agitated with him

when he attempted to perform any duties associated with the PAL Program. This made it extremely

difficult for Russell to accomplish his duties associated with the Program—or even participate in

the Program at all. Russell also alleges that Deputy Chief Gilbert refused to communicate with

him, essentially making it impossible for him to perform his Patrol Division duties in an effective

manner. Viewing this evidence in the light most favorable to Russell, the Court finds that he has

3 In addition, although Russell was required to take on significantly more responsibilities, there has been

no contention that he receiving a corresponding salary increase to compensate him for shouldering those

additional responsibilities.

shown the existence of a genuine issue of material fact as to whether a reasonable person in his

shoes would have felt compelled to resign. See Keelan, 407 F.3d at 342.

Having rejected both of the Defendants’ arguments concerning the prima facie stage of the

proceedings, the Court finds that Russell has carried his initial burden.

The burden now shifts to the Defendants, who maintain the “burden of articulating some

legitimate, nondiscriminatory reason for the adverse employment action.” Snyder v. L-3 Comms.

Vertex Aerospace, LLC, 2020 WL 869977, at *6 (N.D. Miss. Feb. 21, 2020) (citing McDonnell

Douglas Corp., 411 U.S. at 802). Importantly, the Defendants have “a mere burden of production

rather than a burden of persuasion.” Id. (citation omitted).

The Defendants emphasize Chief Aguirre’s deposition testimony that he “believed that

Russell’s skills and capabilities made him an excellent candidate for a leadership position within

the Department and that Russell’s chances for advancement would benefit from serving as a

lieutenant in the Patrol Division.” [69], p. 4. The Defendants also note that there was a shortage of

Patrol Officers and that none of the Sergeants in the Patrol Division at that time, including

Gilleylen, were ready to take on a leadership role. Although Russell disputes the veracity of such

contentions, the Court must not engage in credibility determinations at this stage in the

proceedings. See Cervantez v. KMGP Servs. Co. Inc., 349 F. App’x 4, 8-9 (5th Cir. 2009) (noting

that the employer’s burden at this stage “is one of production, not persuasion; it can involve no

credibility assessment.”). The Court finds that the Defendants have carried their burden.

The burden then shifts back to Russell to establish that the Defendants’ reasons are

pretextual. Snyder, 2020 WL 869977, at *6 (citing McDonnell Douglas, 411 U.S. at 802). At this

stage, Russell “must prove that the legitimate reasons offered by the defendant were not its true

reasons but were a pretext for discrimination.” Id. (quoting Goudeau v. Nat’l Oilwell Varco, L.P.,

793 F.3d 470, 477 (5th Cir. 2015); Squyres v. Heico Companies, LLC, 782 F.3d 224 (5th Cir.

2015)). “A plaintiff may establish pretext by showing that a discriminatory motive more likely

motivated her employer’s decision, such as through evidence of disparate treatment, or that her

employer’s explanation is unworthy of credence.” Id. (citation omitted).

Russell contends that the decision to transfer him to the Patrol Division was motivated by

the Defendants’ desire to prevent Gilleylen from obtaining a promotion. As to his qualifications

for the position, Russell emphasizes that he had not worked in the Patrol Division in twelve years

and that others, such as Gilleylen, were much more qualified for the position. See, e.g., Birchfield

v. City of West Point, Miss., 2021 WL 277810, at *5 (N.D. Miss. Jan. 27, 2021) (citing Maurer v.

American Airlines, 249 F. App’x 341, 343 (5th Cir. 2007); Price v. Federal Express Corp., 283

F.3d 715, 723 (5th Cir. 2002)) (“[I]n a failure to promote case, a showing that the unsuccessful

employee was clearly better qualified is enough to prove that the employer’s proffered reasons are

pretextual.”). He also rebuts the contention that there was a shortage of Patrol Officers, noting

“[t]hat contention is inconsistent with the fact that Moyer testified that the City also moved one

Patrol sergeant, David Harville, out of Patrol and into the property room.” [75], p. 15; see [74],

Ex. 18, p. 16.4 In addition, Russell notes Moyer’s deposition testimony that Moyer’s transfer was

not temporary but rather would be permanent. See [74], Ex. 18, p. 13. Russell avers that this fact

supports his argument that his transfer was not temporary, but was actually a permanent transfer

utilized as part of a scheme to keep Gilleylen from being promoted.

Ultimately, at this stage in the proceedings, Russell need only establish the existence of a

genuine issue of material fact. See, e.g., Stennett, 619 F. App’x 310, 318 (5th Cir. 2015) (citing

4 The Court notes that Chief Aguirre specifically testified that the Patrol Division was “shorthanded at that

particular time . . . We were extremely shorthanded because of our military obligations for our men and

women and then also these that were out on sick.” [74], Ex. 16, p. 10-11. He further stated that the shortage

was “part of” the reason for Russell’s transfer to the Patrol Division. Id. at p. 14.

Reeves, 530 U.S. at 151) (noting that, in this context, the reviewing court must evaluate all of the

evidence “as a whole”). Viewing the evidence “as a whole”—particularly, the relative

qualifications of Russell and Gilleylen, whether the transfer was permanent, whether there was

actually a need for additional Patrol officers, and the circumstances surrounding Gilleylen and the

purported animus harbored against her based upon her filing of a lawsuit against the City of Tupelo

in 2015—the Court finds that Russell has met this burden.

Although recognizing that this case does not perfectly fit within the confines of the

McDonnell Douglas burden-shifting framework, the Court acknowledges that the framework was

“never intended to be rigid, mechanized, or ritualistic.” U.S. Postal Service Bd. of Governors v.

Aikens, 460U.S. 711, 715, 103 S. Ct. 1478, 75 L. Ed. 2d 403 (1983) (quoting Furnco Const. Corp.

v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 2949, 57 L. Ed. 2d 957 (1978)). Russell has come

forward with sufficient evidence to satisfy this standard.

B. Qualified Immunity and Monell Liability

Having found that Russell has established, at least for purposes of this stage in the

proceedings, that his rights secured by federal law and the United States Constitution were

violated, the Court must now turn to the Defendants’ defenses. As noted above, Chief Aguirre and

Deputy Chief Gilbert contend that they are entitled to qualified immunity, and the City of Tupelo

avers that Russell lacks sufficient evidence to impose municipal liability. The Court will address

these arguments in turn.

i. Qualified Immunity

“The doctrine of qualified immunity protects governmental officials from civil damages

liability when their actions could reasonably have been believed to be legal.” Morgan v. Swanson,

659 F.3d 359, 370 (5th Cir. 2011). “Qualified immunity balances two important interests—the

need to hold public officials accountable when they exercise power irresponsibly and the need to

shield officials from harassment, distraction, and liability when they perform their duties

reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565

(2009). An officer may successfully invoke the defense of qualified immunity “insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818‐19, 102 S. Ct. 2727, 73 L.

Ed. 2d 396 (1982); see also Cantu v. Rocha, 77 F.3d 795, 805‐06 (5th Cir. 1996).

“Courts generally carry out two steps when determining whether a defendant is protected

by qualified immunity. The court asks whether the official ‘violated a statutory or constitutional

right’ and whether ‘the right was “clearly established” at the time of the challenged conduct.’”

Caldwell v. Medina, 2020 WL 4043501, at *8 (W.D. Tex. July 17, 2020) (citing and quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011); Harlow, 457

U.S. at 818).

As to the first step—whether the Defendants violated Russell’s statutory and constitutional

rights, the Court relies upon the extensive analysis pursuant to the McDonnell Douglas framework

set forth above. For purposes of this stage in the proceedings, this element is satisfied. Thus, the

Court turns to the second step—whether the rights were clearly established.

“For a right to be clearly established, ‘its contours must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.’” Ratliff v. Aransas

Cty., Tex., 948 F.3d 281, 287 (5th Cir. 2020) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.

Ct. 2508, 153 L. Ed. 2d 666 (2002)). This is an objective standard with the touchstone being

“whether a reasonable person would have believed that his conduct conformed to the constitutional

standard in light of the information available to him and the clearly established law.” Zadeh v.

Robinson, 928 F.3d 457, 468 (5th Cir. 2019) (quoting Goodson v. City of Corpus Christi, 202 F.3d

730, 736 (5th Cir. 2000)).

The Supreme Court has on multiple occasions cautioned that “clearly established law

should not be defined at a high level of generality.” White v. Pauly, --- U.S. ---, 137 S. Ct. 548,

196 L. Ed. 2d 463 (2017) (citing Ashcroft, 563 U.S. at 742); see also Bustillos v. El Paso Cty.

Hosp. Dist., 891 F.3d 214, 222 (5th Cir. 2018) (quoting Mullenix v. Luna, 577 U.S. 7, 12, 136 S.

Ct. 305, 193 L. Ed. 2d 255 (2015)) (noting that the inquiry “must be undertaken in light of the

specific context of the case, not a broad general proposition.”). “While there need not be a case

directly on point, the unlawfulness of the challenged conduct must be ‘beyond debate.’” Joseph

on behalf of Estate of Joseph v. Bartlett, 981 F.3d 319, 330 (5th Cir. 2020) (citing District of

Columbia v. Wesby, --- U.S. ---, 138 S. Ct. 577, 590, 199 L. Ed. 2d 453 (2018)). Importantly, the

Fifth Circuit has made clear that “[i]t is the plaintiff’s burden to find a case in [his] favor that does

not define the law at a ‘high level of generality.’” Bustillos, 891 F.3d at 222 (quoting Vann v. City

of Southaven, 884 F.3d 307, 310 (5th Cir. 2018); Cass v. City of Abilene, 814 F.3d 721, 733 (5th

Cir. 2016)).

It is also critically important to note that “[b]ecause the focus is on whether the officer had

fair notice that [his] conduct was unlawful, reasonableness is judged against the backdrop of the

law at the time of the conduct.” Tucker v. City of Shreveport, --- F.3d ---, 2021 WL 1973562, at *3

(5th Cir. May 18, 2021) (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)) (emphasis

added). In fact, the Fifth Circuit, in Tucker, specifically noted a district court’s error in looking to

case law that was published subsequent to the event in question when analyzing qualified

immunity. Id. at *6.

Keeping in mind the Court’s duty to consider the challenged conduct against the backdrop

of the law at that time is extremely important in this case. The challenged conduct—specifically,

the employment decisions made by Chief Aguirre and Deputy Chief Gilbert, occurred in early

2018. The Court finds that fact of utmost importance here because many of the cases this Court

cited in reaching the determination that Russell maintained a right which was allegedly violated

by the employment decision were issued subsequent to that time. For example, the Fifth Circuit

decided White Glove on January 15, 2020, and Simmons was decided on August 24, 2020—well

after the relevant employment decision was made. As noted above, the Fifth Circuit, in those cases,

specifically grappled with one of the issues the Court faces in this case—the parameters of standing

in the employment discrimination context.

The Court also notes that while Russell has come forward with cases regarding Section

1981 and the Equal Protection Clause generally, he cites no cases wherein a plaintiff was

admittedly not discriminated against because of his race but instead was used as a “pawn” for a

discriminatory scheme directed toward a co-worker. The Court finds this distinction to be crucial,

in light of its duty to define the right at issue with particularity. See Shumpert v. City of Tupelo,

905 F.3d 310, 320 (5th Cir. 2018) (noting that in order to find that a right is clearly established

“we must be able to point to controlling authority—or a robust consensus of persuasive authority—

that defines the contours of the right in question with a high degree of particularity.”).

Ultimately, taking all of these factors into account and considering the case law available

at the time of the challenged conduct, the Court finds that Russell’s rights in this context were not

clearly established at the time of the subject employment decision. In other words, the Court cannot

find that Chief Aguirre and Deputy Chief Gilbert acted in a plainly incompetent manner or that

they knowingly violated Russell’s rights. See Mullenix, 577 U.S. at 12 (quoting Malley v. Briggs,

475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)) (“Put simply, qualified immunity

protects ‘all but the plainly incompetent or those who knowingly violate the law.”).

Consequently, the Court finds that Chief Aguirre and Deputy Chief Gilbert are entitled to

qualified immunity. The Section 1983 claims asserted against them in their individual capacities

are therefore dismissed with prejudice.

ii. Municipal Liability

The City of Tupelo argues that, even if Russell survives summary judgment as to the merits

of his Section 1983 claims, his claims still must be dismissed because he lacks sufficient evidence

to establish municipal liability.

“While municipalities can be sued directly under § 1983, Monell establishes that they

‘cannot be found liable on a theory of vicarious liability or respondeat superior.’” Webb v. Town

of Saint Joseph, 925 F.3d 209, 214 (5th Cir. 2019) (quoting Davidson v. City of Stafford, 848 F.3d

384, 395 (5th Cir. 2017); citing Monell v. Dept. of Social Servs., 436 U.S. 658, 98 S. Ct. 2018, 56

L. Ed. 2d 611 (1978)). “In other words, ‘the unconstitutional conduct must be directly attributable

to the municipality through some sort of official action or imprimatur; isolated unconstitutional

actions by municipal employees will almost never trigger liability.’” Id. (quoting Piotrowski v.

City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)) (additional citation omitted). “To overcome

summary judgment on a municipal liability claim, a plaintiff must . . . ‘demonstrate a dispute of

fact as to three elements: that (1) an official policy (2) promulgated by the municipal policymaker

(3) was the moving force behind the violation of a constitutional right.’” Id. (quoting Davidson,

848 F.3d at 395).

In its Motion [68], the City of Tupelo attacks the second element, contending that the City

of Tupelo cannot be held liable for the actions of Chief Aguirre because he was not the City’s

policymaker. Specifically, the City asserts that “simply because Aguirre, as Chief of Police, was

accorded the ‘discretion’ to undertake employment related decisions does not mean he was

delegated ‘policymaking authority’ under the City of Tupelo’s employment policies.” [69], p. 19-

20. Further, the City asserts that “Mayor Shelton and Chief Operating Officer Don Lewis exercised

final control and authority regarding the Department’s employment activities when they

questioned Aguirre’s basis for transferring Russel to the Patrol Division and directed that Russell

maintain his position as Executive Director of PAL.” [69], p. 20.

In response to the City’s arguments on this point, Russell points to specific deposition

testimony. When questioned about authority to approve a transfer within the Police Department,

Mayor Shelton testified that “[i]t would ultimately be the chief’s responsibility or authority. . . the

ultimate responsibility would end with Chief Aguirre.” [74], Ex. G, p. 12. Mayor Shelton also

testified that he did not “think it would be appropriate for me to interfere in the day-to-day

operations of the police department. You know, the promotions, the policies and procedures,

overall.” [74], Ex. G, p. 20. Russell also cites a previous opinion, Hardy v. City of Tupelo, 2009

WL 3678262 (N.D. Miss. Nov. 2, 2009), wherein this Court recognized that the City of Tupelo

could be held liable for a personnel decision made by the Chief of Police.

Although the City attempts to describe the potential imposition of liability under these

circumstances as respondeat superior liability, the Mayor himself testified that he viewed Chief

Aguirre as the final decisionmaker as to personnel decisions within the Police Department. For

practical purposes, this appears, in the Court’s view, to be true as Chief Aguirre testified that he—

not Mayor Shelton or the City’s COO—made the decision to transfer Russell into the Patrol

Division position. In other words, the City appears to acknowledge that Chief Aguirre was the one

who made the decision yet it attempts to shield itself from municipal liability by passing off the

responsibility to others. The Court squarely rejects this argument. Russell has come forward with

sufficient evidence to survive summary judgment on his Section 1983 claims for municipal

liability against the City of Tupelo. He will be permitted to proceed on those claims.

III. Title VI Claim

The Court next turns to Russell’s Title VI claim. In pertinent part, Title VI states “[n]o

person in the United States shall, on the ground of race, color, or national origin, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any program or

activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. “Title VI and Title IX seek to

stamp out discrimination in programs receiving federal funds and ensure that federal resources do

not support discriminatory practices.” Sewell v. Monroe Cty. Sch. Bd., 974 F.3d 577, 583 (5th Cir.

2020). “Title VI prohibits race discrimination in all programs receiving federal funds.” Id. (citing

42 U.S.C. § 2000d). “Private individuals may sue to enforce [Title VI] and obtain both injunctive

relief and damages.” Elalawy v. Lubbock Indep. Sch. Dist., 816 F. App’x 958, 963 (5th Cir. 2020)

(quoting Alexander v. Sandoval, 532 U.S. 275, 279, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001)).

Claims under Title VI “may be brought only against the institution receiving federal funds,

not employees of those institutions.” Sewell, 974 F.3d at 582 (citing Fitzgerald v. Barnstable Sch.

Comm., 555 U.S. 246, 257, 129 S. Ct. 788, 172 L. Ed. 2d 582 (2009)) (emphasis added). Thus,

Russell’s Title VI claims against Chief Aguirre and Deputy Chief Gilbert cannot survive summary

judgment. Those claims are dismissed.

As to his claim against the City of Tupelo, “[t]he essential elements of a Title VI claim are

(1) there is race or national origin discrimination, and (2) the entity engaged in discrimination is

receiving federal financial assistance.” Washington v. Jackson State Univ., 532 F. Supp. 2d 804,

810 (S.D. Miss. 2006) (citing Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio,

40 F.3d 698, 706 n. 9 (5th Cir. 1994)). “The burden of proof in a Title VI case is the same as that

for Title VII and other civil rights statutes.” Id. (citing Baldwin v. Univ. of Texas Med. Branch,

945 F. Supp. 1022, 1031 (S.D. Tex. 1996)) (pronouncing that the burden-shifting analytical inquiry

into intentional race discrimination claims is essentially the same for § 1981, § 1983, Title VI, and

Title VII).

As to the McDonnell Douglas burden-shifting framework, the Court relies upon the above

analysis and finds that Russell has come forward with sufficient evidence to survive summary

judgment. The first element of the Title VI claim is therefore satisfied. The parties do not dispute

the second element—the receipt of federal funding. Consequently, although the Title VI claims

against Chief Aguirre and Deputy Chief Gilbert are dismissed with prejudice, Russell’s Title VI

claim against the City of Tupelo survives summary judgment.

IV. State Law Claim

Finally, Russell asserts a state law claim for intentional interference with contractual

relations against Deputy Chief Gilbert. “The elements of intentional interference with contract are:

(1) that the acts were intentional and willful; (2) that they were calculated to cause damage to the

plaintiff in his/her lawful business; (3) that they were done with the unlawful purpose of causing

damage and loss, without right or justifiable cause on the part of the defendant (which acts

constitute malice); and (4) that actual damage or loss resulted, and (5) the defendant’s acts were

the proximate cause of the loss or damage suffered by the plaintiff.” Alfonso v. Gulf Pub. Co., Inc.,

87 So.3d 1055, 1060 (Miss. 2012) (quoting Scruggs, Millette, Bozeman & Dent, P.A. v. Merkl &

Cocke, P.A., 910 So.3d 1093, 1098-99 (Miss. 2005)).

Deputy Chief Gilbert makes two arguments for dismissal of this claim. First, he contends

that a one-year statute of limitations is applicable to the claim under the MTCA and that the claim

is therefore untimely. Second, he contends that he, as Russell’s supervisor, was “privileged” to

interfere in Russell’s at-will employment. See, e.g., Grice v. FedEx Ground Package System, Inc.,

925 So.2d 907, 910 (Miss. Ct. App. 2006) (“One occupying a position of responsibility on behalf

of another is privileged, within the scope of that responsibility and absent bad faith, to interfere

with his principal’s contractual relationship with a third person.”).

The Court will first turn to Deputy Chief Gilbert’s contention regarding the statute of

limitations. On that point, Russell alleges that a three-year limitation applies, while Deputy Chief

Gilbert contends that a one-year limitation period is applicable. Because the challenged conduct

occurred in early 2018 and this action was not filed until January 2020, the determination as to the

appropriate limitations period is of critical importance.

Specifically, Russell cites the Mississippi Court of Appeals’ decision in Wertz v. Ingalls

Shipbuilding Inc. for the proposition that a three-year limitations period is applicable. 790 So.2d

841 (Miss. Ct. App. 2000) (“Wertz’s intentional interference with contract claim was filed within

the three year period of limitation[.]”). However, Deputy Chief Gilbert asserts that because he

“was clearly acting in his official capacity as Russell’s ranking officer, the Mississippi Tort Claims

Act’s one year limitations period applies[.]” [78], p. 12. Russell cites Black v. Ansah, in which the

Court of Appeals, after conducting a lengthy analysis, held that because the Mississippi Tort

Claims Act provides the exclusive state law remedy for tort claims of this nature, the Act’s one-

year limitation period was applicable to an intentional interference with contractual relations claim.

Black v. Ansah, 876 So.2d 395, 398 (Miss. Ct. App. 2003). This Court also notes that Black was

decided after Wertz.

Relying on Black, the Court finds that a one year limitations period is applicable to

Russell’s state law claim. Because he filed the claim more than one year after the purported

violation occurred, his claim is time-barred. It is therefore dismissed with prejudice.5

Conclusion

For the reasons set forth above, the Defendants’ Motion for Summary Judgment [68] is

GRANTED IN PART and DENIED IN PART. All federal claims against Chief Aguirre and

Deputy Chief Gilbert in their individual capacities are dismissed with prejudice. Russell’s state

law claim against Deputy Chief Gilbert is also dismissed with prejudice. Russell shall be permitted

to proceed on his Section 1983 and Title VI claims against the City of Tupelo.

SO ORDERED, this the 16th day of June, 2021.

/s/ Sharion Aycock

UNITED STATES DISTRICT JUDGE

5 Since the Court is dismissing this claim as time-barred based on the statute of limitations, it need not

address Deputy Chief Gilbert’s second argument for dismissal.