William Donald Collins, Sr. v. City of Newton
William Donald Collins, Sr. v. City of Newton
Concurring in Part
¶ 44. I agree that affirming the trial court is appropriate for the majority of the claims in this case; however, because I believe that the wrongful termination claims should survive, I respectfully concur in part and dissent in part.
¶ 45. The Collinses argue that the Newton Fire Department Standard Operating Guidelines ("Guidelines") provide an exception to the at-will employment doctrine. One exception to the at-will doctrine is where an employee manual creates a contractual obligation.
Bobbitt v. Orchard, Ltd.
,
¶ 46. Donald Collins testified that he signed something stating he would follow the Guidelines, that he was familiar with some of the Guidelines, and that the standard procedure for terminating a firefighter, paid or volunteer, was to issue oral and written warnings first.
¶ 47. Donnie testified that the Fire Department followed the disciplinary procedures in the Guidelines for terminating personnel and that it was communicated to the firefighters that these were the rules the Fire Department and its personnel abided by. Colt also testified that the procedure for termination included a verbal and then a written warning, then suspension, then termination.
¶ 48. The City of Newton Employee Policy Handbook ("Handbook") provides that "NO STATEMENT IN THIS POLICY GUIDE SHOULD BE INTERPRETED AS A CONTRACT OF EMPLOYMENT BETWEEN YOU AND THE CITY OF NEWTON." (Emphasis added.) At least two other provisions provide that employment with the City is at-will, with one stating that employees "work at the will of the governing authorities of the City. Discretion to hire and fire is vested in the Department Heads, i.e. the City Clerk, Chief of Police, and Director of Public Works, subject to approval by the Mayor and Board of Aldermen."
¶ 49. The Guidelines state that their purpose is "To establish Rules and Regulations for the personnel of the Newton Fire Department that are particular to the Fire Department and which are not included in the City of Newton Personnel Rules and Regulations, and federal or state regulations and statutes." The Guidelines apply to all Fire Department personnel, with personnel including "all persons, uniformed and non-uniformed, volunteers and employed by the City of Newton Fire Department." The Guidelines require all personnel to obey all laws, rules, regulations, ordinances, and orders, "and any violations may be sufficient cause for
disciplinary action
." (Emphasis added.) They provide that non-compliance with the department rules and regulations "will not be tolerated" and that "[t]hose personnel committing such infractions will be subject to
disciplinary actions
." (Emphasis added.) The Guidelines then outline "Standardized Disciplinary Actions." For tardiness, uniform violation, safety violation, and all other general rules and regulations violations, "to be issued for individual violations with no more than 12 during a career[,]" the first offense receives a "[d]ocumented verbal warning/coaching/counseling session." A second offense receives a "[w]ritten reprimand." The third offense receives one "shift suspension without pay." The fourth offense warrants suspension without pay for three shifts. The fifth offense receives termination. Other disciplinary procedures are outlined for fighting and DUI. Nothing in the provisions of the Guidelines placed in the record
¶ 50. In
Bobbitt
, the Court emphasized that the employee manual containing the disciplinary procedures did not contain any "express disclaimer or contractual provision that the manual did not affect the employer's right to terminate the employee at will[.]"
Bobbitt
,
¶ 51. "[T]he general rule is that where a contract is ambiguous and uncertain, questions of fact are presented which are to be resolved by the trier of facts, and the granting of summary judgment is inappropriate."
Shelton v. American Ins. Co.
,
¶ 52. A plaintiff need not prove his case to survive summary judgment; he need only create a genuine issue of material fact. Neither the Handbook nor the Guidelines specifically refer to one another. As such, when construing the evidence in the light most favorable to the Collinses, a genuine issue of material fact exists as to whether the Guidelines created a contract and thus whether Donnie, Colt, Donald, and Lisa had a right to the disciplinary procedures outlined in the Guidelines. Therefore, summary judgment on the wrongful termination claims was inappropriate, and I would reverse the trial court on this issue.
KITCHENS, P.J., JOINS THIS OPINION.
The defendants did ask Donald about some Fire Department "Rules and Regulations" that allegedly provide that volunteers can be terminated at any time. However, these rules and regulations are not in the record. The defendants also cite in their brief to a Guideline provision requiring that Fire Department personnel acquaint themselves with the City of Newton rules and regulations, yet, that Guideline provision is not in the record.
It appears that only portions of the Guidelines were placed in the record, rather than the complete Guidelines. If the complete Guidelines contain such an express disclaimer, certainly it was incumbent upon the defendants to place a complete copy in the record.
I am skeptical of the argument that a volunteer may have a successful wrongful termination claim; however, the documents in the record before this Court contain an ambiguity that creates a material issue of fact to determine whether these volunteers had any contractual rights regarding their volunteer positions. Volunteers had to follow the Guidelines, and many volunteers apparently regarded volunteering as a path to paid employment.
Opinion of the Court
¶ 1. Several members of the Collins family sued the City of Newton and several of its officials alleging wrongful termination, intentional infliction of emotional distress, negligent infliction of emotional distress, slander, and reckless disregard of property. The defendants filed a motion for summary judgment, which the trial court denied. After a new judge was assigned to the case, the defendants filed a motion for relief or reconsideration of the denial of summary judgment under Mississippi Rule of Civil Procedure 60 ; the trial court granted the Rule 60 relief. The Collinses appeal from the trial court's order granting summary judgment in favor of the defendants. Discerning no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. The plaintiffs are members of a firefighting family. William Donald Collins Sr. is the patriarch of the family. Mary Collins, Donald's wife, is the matriarch. Donald was a volunteer firefighter with the City of Newton Fire Department for more than thirty years. Mary never has had any type of employment relationship with the Fire Department. Donald and Mary have three adult sons, William Donald "Donnie" Collins II, Jay Collins, and Colt Collins. Donnie and Colt were full-time, paid firefighters with the Fire Department in 2012, when the events at issue occurred. Jay also was a full-time, paid, firefighter with the Fire Department and remains so. Colt is married to Lisa Collins, who was a volunteer firefighter with the Fire Department in 2012.
¶ 3. The Collinses claim that problems began in 2009, when the firefighters voted that Donnie be their chief over the then-current Chief Bounds. The Board of Aldermen ratified the vote, and Mayor David Carr vetoed the ratification. The Board overturned Mayor Carr's veto. Mayor Carr obtained an ethics opinion regarding Donnie being his brothers' boss, and the Board then declined to accept Donnie as fire chief. Donnie was made assistant chief and Walter Gordon was hired as chief. After Chief Gordon left, sometime in early 2012, Clarence Parks was hired as chief. On June 20, 2012, Chief Parks distributed a letter to all Fire Department personnel, Mayor Carr, and the Board, declaring every rank, position, and title in the Fire Department vacant, effectively stripping all firefighters of their ranks. Shortly thereafter, around July 3, 2012, Joel Skinner was made interim chief. Skinner is Mary's brother's son; thus he is Donald's and Mary's nephew and first cousin to Donnie and Colt. Around July 5, 2012, after an argument with Skinner in a meeting, Donald was terminated from the Newton Fire Department. On about July 18, 2012, Donnie and Colt were terminated from the Newton Fire Department, and Lisa was terminated about July 23, 2012.
¶ 4. On July 21, 2012, Donald's and Mary's home was struck by lightning, caught fire, and burned. The home was a total loss. No one was injured. The Collinses claim that, during the fire, Interim Chief Skinner did several things incorrectly. Interim Chief Skinner allegedly did not have a sufficient number of firefighters to fight the fire adequately. Furthermore, the Collinses allege that the lack of commanding officers due to the elimination of all ranks led to inadequate firefighting, that Interim Chief Skinner sent firefighters away from the scene of the fire, that he fought the fire from the front when it should have been attacked from the back, that he lacked the experience to be interim chief, and that he ordered several of the Collinses to leave the scene instead of allowing them to help.
¶ 5. In July 2013, Donald and Mary, Donnie, Colt, and Lisa sent notices of claims to the City of Newton. On October 29, 2013, Donald and Mary filed a complaint against the City of Newton, Mayor Carr, former Fire Chief Parks, Former Fire Chief Skinner, three of the aldermen for the City of Newton, and several John Does. In their complaint, Donald and Mary alleged wrongful termination, infliction of emotional distress, slander, and failure to respond properly to the fire at their home. They alleged that, due to the personnel changes, the Fire Department was unable to respond properly to emergencies, thereby endangering the safety of the public and property of the City of Newton. On the same day, Donnie, Colt, and Lisa each filed separate complaints against the same defendants. Each alleged wrongful termination, infliction of emotional distress, and slander. The four cases eventually were consolidated.
¶ 6. After discovery, the defendants moved for summary judgment. The trial court, Judge Marcus Gordon presiding, denied the motion. The defendants moved to alter or amend the judgment under Rule 59, and the trial court denied the motion. The defendants petitioned the Court for interlocutory appeal, and the Court declined to accept the appeal and remanded the case. Upon remand, Judge Gordon had left the bench. The case was assigned to Judge Vernon Cotten. The defendants then filed a motion for relief from order or reconsideration pursuant to Rule 60. The trial court granted the motion and dismissed the case.
¶ 7. The Collinses appeal, arguing that the court erred by revisiting the motion for summary judgment under Rule 60 and by inappropriately revisiting a prior order by another trial judge. They further argued that, even if it was appropriate to revisit the prior order, summary judgment was inappropriate.
ANALYSIS
I. Standard of Review
¶ 8. The Court reviews legal issues
de novo
.
Caves v. Yarbrough
,
¶ 9. The Collinses argue that if the merits of summary judgment are reached, the Court should review the case under the de novo standard for summary judgment, as the substance of the order is to grant the motion for summary judgment. The defendants argue that the Court should review the case under an abuse of discretion standard, as granting or denying relief under Rule 60 typically is reviewed for an abuse of discretion.
¶ 10. Although the standard of review was not specifically discussed, cases with a similar procedural posture have been reviewed under the
de novo
summary judgment standard.
See
Holland v. Peoples Bank & Trust Co.
,
¶ 11. The Court reviews a trial court's grant or denial of summary judgment
de novo
.
Crosthwait v. Southern Health Corp. of Houston, Inc.
,
II. The Trial Court's Authority
¶ 12. The Collinses argue that Rule 60 applies only to final orders, and that the orders denying the motion for summary judgment were interlocutory in nature. As a result, they argue that it was inappropriate for the trial court to grant relief under Rule 60. They also argue that it was inappropriate for a successor trial judge to reverse the previous trial judge's rulings, citing
Amiker v. Drugs for Less, Inc.
,
¶ 13. It is true that the Court has stated that Rule 60"applies only where the judgment or order is final."
Holland
,
III. Summary Judgment
A. Wrongful Termination
¶ 14. "Mississippi adheres to the common law doctrine of employment-at-will."
Senseney v. Mississippi Power Co.
,
¶ 15. The Collinses argue that Mississippi Code Section 21-31-23 provides an exception to their at-will employment status. Section 21-31-23 provides that firefighters in the classified civil service have certain procedural rights before they may be terminated in most situations.
¶ 16. Alternatively, the Collinses argue that the Newton Fire Department Standard Operating Guidelines provide an exception to the at-will employment doctrine. In
Bobbitt v. Orchard, Ltd.
,
[W]hen an employer publishes and disseminates to its employees a manual setting forth the proceedings which will be followed in event of an employee's infraction of rules, and there is nothing in the employment contract to the contrary, then the employer will be required to follow its own manual in disciplining or discharging employees for infractions or misconduct specifically covered by the manual.
¶ 17. The exception created by Bobbitt is a narrow one.
The question in this case is when an employer furnishes its employees a detailed manual stating its rules of employment, and setting forth procedures that will be followed in event of infraction of its rules of employment, can it completely ignore the manual in discharging an employee for an infraction clearly covered by the manual? Put otherwise, when an offense specifically covered by the employer's own manual provides no more severe disciplining than a warning or counseling of the employee, may the employer pay no attention to the manual and fire the employee instead?
Bobbitt
,
¶ 18. At the outset, we are unpersuaded that volunteer firefighters may maintain wrongful termination claims. Such a claim has not been recognized in our State. As to the actual employees, the City of Newton, Mississippi, Employee Policy Handbook unequivocally provided that employment with the City is at will. On the first page following the table of contents, under the heading, "INTRODUCTORY STATEMENT," the Handbook provided:
This policy guide is designed to acquaint you with the City of Newton policies and provide you with information about working conditions, employee benefits; and some of the policies affecting your employment. You should read, understand, and comply with all provisions of the handbook. It describes many of your responsibilities as an employee and outlines the programs developed by the City of Newton to benefit employees.
No employee policy guide can anticipate every circumstance or question about policy. The need may arise and the City reserves the right to revise, supplement, or rescind any policies or portion of the handbook from time to time as it deems appropriate in its sole and absolute discretion, and with or without notice to the employees.
NO STATEMENT IN THIS POLICY GUIDE SHOULD BE INTERPRETED AS A CONTRACT OF EMPLOYMENT BETWEEN YOU AND THE CITY OF NEWTON.
Neither the employee nor the City of Newton is bound to continue the employment relationship if either chooses, at its will, to end the relationship at any time.
¶ 19. Under the heading "RESIGNATION AND DISCHARGE," the Handbook provided:
Employees of the City of Newton work at the will of the governing authorities of the City. Discretion to hire and fire is vested in the Department Heads, i.e. the City Clerk, Chief of Police, and Director of Public Works, subject to approval by the Mayor and Board of Aldermen. Since employment with the City of Newton is based on mutual consent, both the employee and the City have the right to terminate employment at will, with or without cause, at any time.
¶ 20. The Handbook also contained a section titled "EMPLOYEE CONDUCT AND WORK RULES," noting that it is not possible to list all the forms of behavior that are considered unacceptable in the workplace. However, a number of "examples of infractions of rules of conduct that may result in disciplinary action, up to and including employment termination" were identified. The section concluded with the following underlined provision:
Employment with the City of Newton is at the mutual consent of the City: and the employee, and either party may terminate that relationship at any time, with or without cause, and with or without advance notice.
¶ 21. The Guidelines, only portions of which are in the record on appeal, state that their purpose is "[t]o establish Rules and Regulations for the personnel of the Newton Fire Department that are particular to the Fire Department and which are not included in the City of Newton Personnel Rules and Regulations, and federal or state regulations and statutes."
¶ 22. A federal district court, applying Mississippi law, recently addressed an issue similar to the one we face today. Former police officers filed a constitutional claim for deprivation of property without due process against the City of Shelby, Mississippi, following their termination, claiming that, due to the policies and procedures in effect during their employment, they could be discharged only for a legitimate cause and upon recommendation of the police chief.
Johnson v. City of Shelby, Miss.
, No. 2:10-CV-00036-MPM,
There is no contract of employment between the City and any one or all of its employees. Employment security cannot be guaranteed for or by any employee. At all times during employment with the City of Shelby, employees shall retain the right to leave employment if they choose. Likewise, we retain the right to separate any employee from employment at any time with or without notice.
¶ 23. The district court acknowledged that, under
Bobbitt
, employers may adopt policies creating a property interest in the police officers' employment.
Id.
at *3. However, the district court found that the City of Shelby's employee handbook specifically disclaimed a contractual relationship.
Id.
The district court determined that "[w]here there is something in the employee handbook disclaiming a contract of employment, the rule developed in
Bobbitt
does not apply."
Id.
"Further, 'disclaimers in employees' manuals having their purpose of preserving the employment at-will relationship cannot be ignored.' "
Id.
(quoting
McCrory
,
¶ 24. Similarly, we cannot ignore the three specific, unequivocal disclaimers contained in the City's Handbook. Furthermore, the exception recognized in Bobbitt does not apply to the case sub judice . The Court of Appeals described the breadth of the exception:
The Bobbitt Court looked to the terms of the handbook itself and discovered, not a list of duties and obligations expected of an employee, but a detailed hierarchical scheme of potential offenses an employee might commit together with a concrete discipline plan for dealing with such offenses. This plan included a listing of ten Minor Offenses, sixteen Major Offenses, and ten Intolerable Offenses, together with a sanction for each such offense that was calibrated to correspond to the perceived gravity of the infraction.
McCrory
,
¶ 25. While the Guidelines offer "Standardized Disciplinary Actions" for "Tardiness, Uniform Violation, Safety Violation, and all other general rules and regulations violations, to be issued for individual violations with no more than 12 during a career," the Guidelines do not purport to create a comprehensive, "detailed hierarchical scheme of potential offenses an employee might commit together with a concrete discipline plan for dealing with such offenses."
See
McCrory
,
¶ 26. In Senseney , the Court of Appeals aptly noted:
We have previously found that, if an employee handbook does not provide exclusive permissible grounds for discharge, it is unreasonable for an employee to believe that he may be terminated only for cause. McCrory ,755 So.2d at 1145 (¶ 17) (quoting Reid v. Sears, Roebuck & Co. ,790 F.2d 453 , 460 (6th Cir. 1986) ). Mississippi Power's guidelines concerning discharge and other forms of employee discipline speak in permissive terms of what a manager "should" do and suggest factors that should be taken into consideration. The guidelines state that discharge without warning is "normally appropriate" for only certain unlisted serious offenses. Thus, the guidelines do not purport to create a mandatory employee discipline scheme. The language of the corporate guidelines could not have led Senseney to reasonably believe that Mississippi Power was contractually bound to warn or counsel him prior to discharge.Id.
Senseney
,
¶ 27. Here, the Collinses' at-will employment status was preserved in light of the three specific, unequivocal disclaimers contained in the City's Handbook.
See
McCrory
,
B. Intentional Infliction of Emotional Distress
¶ 28. The Collinses assert two grounds for their intentional infliction of emotional distress claim: "(1) termination without notice, grounds, or a hearing as civil servants and in violation of their contractual employment with the City of Newton, and (2) the comments made by City representatives, including the Mayor and the Interim Fire Chief, with regard to the Collins family." The Collinses, without citation, allege that because the defendants are municipal government officials, they "are held to a higher standard of good faith and fair dealing, not to mention decency, and thus the slurs and actions taken here are certain to cause revulsion and outrage in the mind of a reasonable juror." The Collinses cite Chief Skinner's alleged threat to Donald to cut off Jay's head, that Mayor Carr allegedly was "making a personal thing" out of firing the Collinses, that Mayor Carr made "disparaging comments," and that an article was published in the Newton newspaper regarding Donald's termination.
¶ 29. To sustain a claim of intentional infliction of emotional distress, the defendants' conduct must be wanton and willful, as well as evoke outrage or revulsion.
Speed v. Scott
,
¶ 30. In
Speed
, a fire department chief and volunteer firefighter were at odds, with the Chief seeing the volunteer as a potential rival trying to undermine him.
Speed
,
¶ 31. Regarding the "disparaging comments" made and the newspaper article, the Collinses failed to allege what statements about them were actually said or written. They failed to place the newspaper article into evidence, and the "disparaging comments" essentially rely on rumors that Mayor Carr was "talking bad" about the Collinses without any allegations regarding the actual substance of what he said to anyone that would disparage any of the Collinses. The alleged wrongful termination does not rise to the level of more than any employment dispute that may have its roots in personal animosity. While it may be true that voters would find such behavior unbecoming of a public official, it certainly does not rise to the level of outrageousness or revulsion such that it is intolerable in a civilized society.
¶ 32. Regarding the threat to cut off Jay's head, liability does not extend to mere threats.
Grice v. FedEx Ground Package Sys., Inc.
,
C. Negligent Infliction of Emotional Distress
¶ 33. On appeal, the Collinses argue that "[a]s a result of the wrongful dismissals," a cause of action accrued for the resulting tort of negligent infliction of emotional distress.
¶ 34. The trial court found that Collinses were "unable to satisfy nor have they provided any evidence thereof that each suffered a physical illness which is medically cognizable requiring or necessitating the assistance of those in the medical profession."
See
Wilson v. Gen. Motors Acceptance Corp
.,
D. Slander
¶ 35. To prove slander, a plaintiff must show "(a) a false statement that has the capacity to injure the plaintiff's reputation; (b) an unprivileged publication, i.e. , communication to a third party; (c) negligence or greater fault on part of publisher; and (d) either actionability of statement irrespective of special harm or existence of special harm caused by publication."
Speed
,
¶ 36. The Collinses fail to meet the first element of slander. They allege generally that certain defendants were "talking bad" about them and trying to prevent them from working. They also refer to a newspaper article published about Donald. Yet, they did not place the article in the record, nor did they refer to any actual
statement
made by the defendants.
E. Reckless Disregard
¶ 37. Donald's and Mary's complaint alleges that:
... as a direct result of the negligence of the Defendants, the City of Newton Fire Department was unable to properly respond to the call when the Plaintiffs' home caught fire on or about July 21, 2012. The reckless and negligent conduct of Mayor Carr and the Board of Alderman [sic] resulted in the fire department lacking the adequate infrastructure to properly respond to emergencies.
In the early morning hours of July 21, 2012, the effect of the negligence of Mayor Carr and the Board of Alderman [sic], in approving Chief Parks'[s] recommendations of stripping the fire department of its experienced personnel, came to fruition. The Plaintiffs' home caught fire and Chief Skinner lacked the skill and experience to properly supervise the firefighters on the scene endangering the safety of the public and property of the City of Newton.
¶ 38. The Collinses argue that a genuine issue of material fact exists that the defendants had "[r]eckless disregard for the failure to protect the property of William Donald Collins Sr. and Mary Collins." They focus solely on criticizing how the July 21, 2012, fire was fought and the resulting property damage. The defendants claim immunity for the acts surrounding the fire at Donald's and Mary's residence, claiming that the Collinses failed to show reckless disregard.
¶ 39. Mississippi Code Section 11-46-9 provides that
[a] governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... [a]rising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury[.]
¶ 40. The plain language of the statute requires that an employee must act with "reckless disregard of the safety
and
well-being of any person."
¶ 41. Donald and Mary also allege in their complaint that certain fire department personnel decisions recklessly disregarded the safety and well-being of the public. While it may be true under some circumstances that personnel decisions could recklessly disregard the safety of the public, the allegation, without more, simply does not create a genuine issue of material fact that the defendants acted with reckless disregard under the high standard required. They do not demonstrate any facts that would create a genuine issue of material fact that the personnel decisions at issue went beyond alleged negligence and "embrace[d] willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act."
Davis
,
CONCLUSION
¶ 42. For the foregoing reasons, we affirm the grant of summary judgment.
¶ 43. AFFIRMED.
WALLER, C.J., RANDOLPH, P.J., MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. KING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.
Decisions on both Rule 59 and Rule 60 motions generally are reviewed for abuse of discretion.
McNeese v. McNeese
,
The only reference in the record that even could be construed as an actual "statement" was that Donald testified that his first cousin told him that Mayor Carr had said he was leaving Hardee's because "[t]here's too many Collinses in there for me." The plaintiffs have failed to indicate any evidence demonstrating the falsity of such a "statement."
Reference
- Full Case Name
- William Donald COLLINS, Sr., Mary Skinner Collins, William Donald Collins, II, Colt Makai Collins and Lisa Marie Collins v. CITY OF NEWTON, Mayor David Carr, Individually and in His Official Capacity as Mayor of the City of Newton, Clarence Parks, Individually and in His Official Capacity as Fire Chief for the City of Newton, Joel Skinner, Individually and in His Official Capacity as Former Fire Chief for the City of Newton, Murray Weems, Individually and in His Official Capacity as Alderman for the City of Newton, and Ronnie Johnson, Individually and in His Official Capacity as Alderman for the City of Newton
- Cited By
- 27 cases
- Status
- Published