E-Filed Document May :57: CA COA Pages: 19 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO: 2015-CA COA

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1 E-Filed Document May :57: CA COA Pages: 19 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO: 2015-CA COA VANESSA J. JONES APPELLANT VERSUS CITY OF HATTIESBURG, MISSISSIPPI REPLY TO RESPONSE APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF FORREST COUNTY Kim T. Chaze Attorney for the Appellant MSB # Surrey Lane Durham, NH

2 NO: 2015-CA COA VANESSA J. JONES V. CITY OF HATTIESBURG, MISSISSIPPI CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Court may evaluate possible disqualification or recusal. Mrs. Vanessa J. Jones Attorney at Law PO Box 1554 Hatiesburg, MS Plaintiff Mr. Kim T. Chaze Attorney at Law 7 Surrey Ln. Durham, NH Mr. L. Clark Hicks Attorney at Law Hattiesburg, Mississippi PO Box Hattiesburg, MS City of Hattiesburg PO Box 1898 Hattiesburg, MS Hattiesburg City Counsel 200 Forrest St. Hattiesburg, MS This, the 10 th day of May, /s/ Kim T. Chaze Kim T. Chaze i

3 TABLE OF CONTENTS PAGE Certificate of Interested Persons.. i Table of Contents.. ii Table of Authorities.....iii Introduction...1 Arguments Issue I. Judge Jones Motion for Rule 56 (f) relief was never ruled upon. The city was allowed Discovery while Judge Jones was blocked from Discovery.1 Issue II. Contract: Aside from the fact that an employer cannot ignore its own Handbook with impunity, irrespective of the at will stance of the City, the City must provide the procedural safeguards it assured Judge Jones in the Handbook document it prepared and provided her 6 Issue III. Summary Judgment should not be countenanced when even the City concedes that all material facts are contested. 11 Conclusion Certificate of Service ii

4 Cases TABLE OF AUTHORITIES PAGE Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...5 Bobbitt v. Orchard, Ltd., 603 So.2d 356 (Miss. 1992).. 6, 7, 10 Burlington Northern Santa Fe R. Co. v. Assiniboine and Sioux Tribes, 323 F.3d 767 (9th Cir. 2003)...5 Cothern v. Vicks, Inc., 759 So.2d 1241 (Miss. 2000).. 7 Cunningham v. Lanier, 555 So.2d 685 (Miss. 1989)... 5 Hellstrom v. United States Dep t of Veterans Affairs, 201 F.3d 94 (2d Cir. 2000)... 6 Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257 (5th Cir. 1991).5, 6 Kelly v. Mississippi Valley Gas Co., 397 So.2d 874 (Miss. 1981) Marx v. Truck Renting & Leasing Ass'n, Inc., 520 So.2d 1333 (Miss. 1987). 5 McCrory v. Wal Mart Stores, Inc., 755 So.2d 1141 (Miss. Ct. App. 1999)....6 Robinson v. Bd. Of Trustees of E. Cent. Junior Coll., 477 So.2d 1352 (Miss. 1985).10 Rosen v. Gulf Shores, Inc., 610 So.2d 366 (Miss. 1992)....10, 11 Samuel v. Holmes, 138 F.3d 173 (5th Cir. 1998) Scott v. Stater, 707 So.2d 182 (Miss. 1997).7 Short v. Columbus Rubber & Gasket Co., 535 So.2d 61 (Miss. 1988)..9, 10 Smith v. H.C. Bailey Cos., 477 So.2d 224 (Miss. 1985)..5 Starks v. City of Fayette, 911 So.2d 1030 (Miss. Ct. App. 2005)....6 Triplet v. Dempsey, 633 So.2d 1011 (Miss. 1994).12 Whiting v. U.S.M. et al, 451 F.3d 339 (5th Cir. 2006).7, 8, 9, 10, 11 iii

5 Mississippi Constitution Article 6, 177A.....7, 8 Rules Miss. R. Civ. P , 4 Miss. R. Civ. P , 2, 3, 4, 5, 11, 12 Uniform Cir. Court Rule iv

6 INTRODUCTION Since the City of Hattiesburg ( City ) has avoided discussing the actual cases and facts presented by Judge Jones, she will accentuate herein the law and facts the City has avoided: I. JUDGE JONES MOTION FOR RULE 56 (f) RELIEF WAS NEVER RULED UPON. THE CITY WAS ALLOWED DISCOVERY WHILE JUDGE JONES WAS BLOCKED FROM DISCOVERY The actual caption of the case immediately alerts all concerned that Judge Jones needed essential and clearly discoverable information regarding who harmed her. The Complaint states: Vanessa Jones (Plaintiff) v. City of Hattiesburg and all Unknown John and Jane Does A -Z (Defendants). R 0007 Please note the term, Defendants is plural. The Complaint, her Affidavit, and her discovery responses made it clear she knew what harm she had suffered, and why, and how, but she did not know who, within the City, caused her harm. This occurred because of the surreptitious leaking of slanderous comments to the media by unknown persons with the City. Please note the John Doe and Jane Doe references in the Complaint. R 0007 Please note paragraph 3 of the Complaint that states, once they become known, Plaintiff will amend, identify, and serve them with process. R 0007 The City avoids discussing, or even addressing, this point. Judge Jones did not want, since it would violate MRCP Rule 11, to bring suit against innocent persons, so she brought suit against the City and other unnamed, unknown persons ( John and Jane Doe ) who harmed her. Only one-sided discovery was allowed herein. The City was allowed discovery, but Judge Jones was blocked from having discovery. Not one deposition was allowed. Numerous requests were made. Upon being sought, the City moved for an Order Allowing Protective 1

7 Relief. R The City has agreed that Judge Jones noticed depositions that were not complied by the City. R The trial judge did not rule upon their motion for protective relief. Thus, the City was insulated from the discovery process simply by making a motion, and the trial judge not ruling upon it. This fact, combined with the Trial Court, not ruling upon Judge Jones Motion for Rule 56 (f) relief, in effect, blocked Judge Jones from having discovery and the taking of necessary depositions. As can be seen by the Response to Motion for Protective Order, Plaintiff sought the depositions of Defendants repeatedly. R The Response also confirms that it was agreed a scheduling order had been agreed, but that agreement was also reneged upon by the City. R 102 Judge Jones was blocked from depositions. Initially, she relied upon the agreement that a scheduling order regarding discovery would be emplaced. She promptly filed a Motion for MRCP Rule 56 (f) relief. R In significant part, Rule 56 (f) states: When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just. The trial judge never ruled upon this motion. Simply stated, Judge Jones was entitled to know who leaked or disseminated the slanderous comments to the press. She did not know. Only the City knew. Discovery and depositions should have been allowed. 2

8 As the motion for Rule 56 (f) relief stated: Here, there is ample time for discovery. Here, the Plaintiff is entitled to ascertain, via discovery: what persons have discoverable knowledge? Plaintiff is entitled to depose at least some of those persons and cross examine them regarding information they possess. This includes all parties named herein. Plaintiff is entitled to know, if anyone, took action regarding her and who disagreed with Defendants and the course of action they adopted regarding Plaintiff. R The Motion also states, Rule 56(f) is particularly applicable when, as here, much of the behind the scenes information, contained in s and otherwise is in the hands of the Defendants and not Plaintiff. R The Motion also states, It is respectfully submitted that certain salient facts regarding the knowledge, intent, and motive of the Defendants are needed to be established. R Then, the Motion states: Please bear in mind that this case is in its incipient stages. There has been no delay in discovery. Consequently, this matter should be stayed so that reasonable discovery may be engaged and so that the Court will be better served by being appropriately informed in this matter. R There is no explanation by the City as to why the trial judge did not rule regarding this motion. There is no known reason why the motion was not ruled upon. Not only was the motion made, it became endemic to the Response for Motion for Summary Judgment, and it was accentuated at the hearing regarding it. T As we have consistently stated, and stated at the hearing, We would be willing to eliminate certain Board Members who didn t participate in the revelations that were slanderous. T Thus, this matter should be reversed for this reason alone. Certainly, the City never addresses this point, never justifies it, and simply avoids it. 3

9 As stated at the hearing, it s just very difficult to divorce oneself from the 56(f) aspect from the summary judgment aspect of this case... T 20 It is paradoxical that, in trying to follow the rules, Ms. Jones has been disadvantaged by them. She did not want to gratuitously sue persons who were not involved in the slander, and she filed the proper MRCP Rule 56 (f) motion to be in compliance with MRCP Rule 11. The City would not provide this information or cooperate in the discovery process. R What was known was that, as the Complaint establishes (verified in her Affidavit), her discovery responses establish, and, of course, her Affidavit establishes, the news media was told by unknown persons with the City that she had acted inappropriately and criminally as a City Judge. R 32-35, T 18-19; See her Affidavit at R The statements released for public view also included slanderous declarations she was signing blank court documents for court clerks to fill out at their discretion. R Criminal activity was alleged by persons within City Hall, according to what was reported via the television media. R Moreover, the local newspaper, the Hattiesburg American, received statements from the City and/or its representatives on or about September 12, 2012 regarding statements of alleged and untruthful inappropriate conduct on the part of the Plaintiff. R Slanderous and defamatory statements were secretly provided to the media by City representatives to the effect that Judge Jones was corrupt, not competent, and that, in effect, she had been untruthful and/or had engaged in conduct that was unbecoming her position. R Moreover, the slander included she was involved in the withholding of information, that she had engaged in or countenanced criminal conduct, and that she had, in effect, benefitted financially from her office as City Judge. R

10 The City is clearly mistaken and highly inaccurate when it contends that specifics were not presented. The foregoing demonstrates that there was ample specificity. The only aspect not known was who disseminated the slanderous, defamatory statements. There is no case where only one sided discovery is allowed. It is remarkable, and the City avoids discussing the key point, that the City was provided discovery while Judge Jones was not provided discovery. The City has not presented one case where this has occurred. How can one-sided discovery be allowed? The City never answers this question and provides no legal support for its position in this regard. The law is clear: 56 (f) motions should be granted as a matter of course when a motion for summary judgment is filed early as herein. When, as here, a summary judgment motion is filed early (two months after the Answer was filed), Courts grant MRCP Rule 56 (f) relief as a matter of course. Burlington Northern Santa Fe R. Co. v. Assiniboine and Sioux Tribes, 323 F.3d 767, (9th Cir. 2003) A continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course. Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1267 (5th Cir. 1991); See also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986) Indeed, the rule essentially desires the completion of discovery because it benefits the Court in ascertaining whether there are existent material factual issues that are genuinely disputed. Marx v. Truck Renting & Leasing Ass'n, Inc., 520 So.2d 1333, 1343 (Miss. 1987) (citing Smith v. H.C. Bailey Cos., 477 So.2d 224, 232 (Miss. 1985)) Justice is served, the Court stated in Cunningham v. Lanier, 555 So.2d 685, 686 (Miss. 1989), when a fair opportunity to oppose a motion is provided--because consideration of a motion for summary judgment requires a careful review by the trial court of all pertinent evidence in a light most favorable to the non-movant. (emphasis in original) 5

11 Because of the difficulties attendant to rebutting the professed state of mind of a partyopponent through summary judgment evidence, the district court should be generous in its allowance of discovery requests aimed at uncovering evidence of the moving party's state of mind. Int l Shortstop, supra Only in the rarest of cases should discovery not be allowed. Hellstrom v. United States Dep t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000) The City never responds to the numerous foregoing cases that favor Judge Jones. Consequently, it is respectfully submitted this civil action should be remanded. II. CONTRACT: ASIDE FROM THE FACT THAT AN EMPLOYER CAN NOT IGNORE ITS OWN HANDBOOK WITH IMPUNITY, IRRESPECTIVE OF THE AT WILL STANCE OF THE CITY, THE CITY MUST PROVIDE THE PROCEDURAL SAFEGUARDS IT ASSURED JUDGE JONES IN THE HANDBOOK DOCUMENT IT PREPARED AND PROVIDED HER The City also avoids discussing the impact of the employment cases provided by Judge Jones. It mentions the at will perspective, but it ignores virtually all of the cases Judge Jones has relied upon herein. This Court held Besides the public policy considerations of McArn the Mississippi Supreme Court has recognized one other means of taking an employment relationship out of the employment at will status. This exception is the one that finds application in the Bobbitt decision. In Bobbitt, the supreme court said that an employer, by promulgating an employees' handbook, may create contractual obligations on its part that override the at will doctrine. McCrory v. Wal Mart Stores, Inc., 755 So.2d 1141, 1143 (Miss. Ct. App. 1999) Then, this Court held, An exception to this [ at will ] doctrine was created by our supreme court in Bobbitt v. Orchard, Ltd., 603 So.2d 356, 361 (Miss. 1992). In Bobbitt, the supreme court held that by promulgating an employees' handbook, an employer may create contractual obligations on its part that override the at-will doctrine. Starks v. City of Fayette, 911 So.2d 1030, 1032 (Miss. Ct. App. 2005) 6

12 Then, later the Fifth Circuit evaluated Mississippi law in Whiting v. U.S.M. et al, 451 F.3d 339, (5th Cir. 2006) and held Mississippi courts have held that employee manuals become part of the employment contract, creating contract rights to which employers may be held, such as Dr. Whiting's right to the procedures outlined in the handbooks. Additionally, the Supreme Court held, This Court has held that contractual obligations may arise from, and an employment contract may be modified by, a personnel or pension manual or other representations. Cothern v. Vickers, Inc., 759 So.2d 1241, 1248 (Miss. 2000) citing Bobbitt v. Orchard, Ltd., 603 So.2d 356 (Miss. 1992) Consequently, the impact of the Employee Handbook as to this case is obvious. So that we are clear, it is accentuated that the Handbook herein, addressed definitively in Judge Jones principal brief, is not itself a contract, but the procedures outlined in the Handbook must be followed. Whiting, supra, at pp The Handbook clearly clarifies, modifies, and entitles Judge Jones to what is provided her in the Handbook. The City has overlooked the foregoing. Additionally, as shown, the principal Brief of Judge Jones, and not denied, the City s Mayor had assured Judge Jones she would be employed until June of the following year (2013). She had a definite term of employment. For this additional reason she was not at will. Moreover, as to a Municipal Judge, it has been held that the mayor does not have the authority to suspend a properly appointed judge from serving on the bench. Scott v. Stater, 707 So.2d 182, 185 (Miss. 1997) Clearly, the executive branch should not and does not control the judicial branch. This is a major concern in Stater, supra. At p. 185 (referring specifically to Article 6, 177 A, Miss. Const.) this rule provides a safeguard protecting the court system from the usurpation of 7

13 political power and influence. Article 6, 177A of the Mississippi Constitution. Id. This is an additional reason Judge Jones was not at will. Judge Jones was positioned as Hattiesburg Municipal Court Judge in June 2003; the Hattiesburg City Council unanimously approved her. The official minutes contractually solidify her position. R 51 This is not disputed. She was assured of a definite term of employment through June 2013 by Mayor DuPree and this was confirmed in the minutes. R 51 This is not disputed. Upon commencement of her long service with the City, she was provided a City of Hattiesburg Employee Handbook that confirmed she had distinct procedural rights she could rely upon regarding the terms and conditions of her employment. R , R (See City of Hattiesburg Employee Handbook ( Handbook ) regarding the classification of Employees, page 3) R It is accentuated, as verified in Whiting, supra, the predominant point here is that the law does not allow an employer to inform an employee she is entitled to procedures and then not provide them. As shown in the Handbook provisions and procedures accentuated in Ms. Jones principal Brief, the Handbook procedures are imperative and explicit. There is no dispute: the Handbook procedural safeguards were not complied. No hearings or meetings with anyone were provided her. Her grievances were ignored. R 71 Terminations were required to be accompanied by her being advised of her grievance/appeal rights. R 71 The entire grievance procedure was ignored and not complied. R There is no evidence she engaged in any wrongdoing or that she did not comply with the procedures. Instead, the City, even here, ignores this aspect of the case. There is no doubt 8

14 the Handbook insists that terminations are grievable and appealable. R 71 ( terminations are specifically included in the procedures) Pursuant to the Handbook and guidelines, Judge Jones became a permanent employee in January 2004 and was vested with all the rights and privileges of a permanent employee of the City of Hattiesburg. R , Handbook, p 3-4 In accordance with the Handbook, if there was a reduction in force issue, as the City contends herein, it had to occur in the following procedural manner: Temporary Employees, Probationary Employees, then, and only then, Permanent Employees based on Seniority. R 0070 That was the order of reduction that was required. It was ignored. Judge Jones was the Senior Municipal Court Judge until she was wrongfully terminated in October 1, She should have been allowed to remain employed until, at least, June If only one City Judge was needed, Judge Jones should have been that person - - according to the Handbook. R 0070 There is no evidence she was terminated because of any actual wrongdoing on her part. R She did not violate any of the provisions regarding termination. Whiting makes clear that an employer cannot assure an employee of procedures and then not follow them. The at will issue is not the key issue, but, even if it is, if one looks at the at will issue, it only applies when there is not a definite term of employment. Kelly v. Mississippi Valley Gas Co., 397 So.2d (Miss. 1981) ( a contract of employment for an indefinite term may be terminated at the will of either party ) Here, there is a definite term of employment. In an employment contract case very similar to the case sub judice, the Supreme Court reversed the trial court's grant of summary judgment in favor of the employer. In Short v. Columbus Rubber & Gasket Co., 535 So.2d 61 (Miss. 1988), Roger Short was elected President 9

15 of Columbus Rubber & Gasket Co. by resolution of the corporation's board of directors. The resolution stated that Short was to be elected for the ensuing year. Id. at 64 Based on these facts, the court held that Short had made out a genuine issue of material fact of the existence vel non of a one year oral contract of employment. Id. at 65 held: In determining what proof was sufficient to raise a genuine issue of material fact, it was At the very least, controverted testimony regarding the contemplated length of employment creates an issue of fact as to the existence of an oral contract for a definite term vel non, precluding summary disposition. Rosen v. Gulf Shores, Inc., 610 So.2d 366, 369 (Miss. 1992) Here, the City does not dispute that Ms. Jones had a definite term of employment (until June 2013). If it does dispute it, the trier of fact should resolve the genuine factual dispute. Summary Judgment is not appropriate. Although Judge Jones was not an at will employee, even if she was, she is still entitled to the procedures and relief provided in the Handbook as described supra. Samuel v. Holmes, 138 F.3d 173 (5th Cir. 1998) Even non-tenured probationary employees have contractual rights to the procedures contained in the Handbooks. Id. Holmes echoes Bobbitt v. The Orchard Dev. Co., 603 So.2d 356, 361 (Miss. 1992), Robinson v. Bd. Of Trustees of E. Cent. Junior Coll., 477 So.2d 1352, 1353 (Miss. 1985), and Whiting v. U.S.M. et al, 451 F.3d 339, (5th Cir. 2006). Neither the lower court nor the Defendants addressed the dominating case of Robinson v. Board of Trustees, 477 So.2d 1352 (Miss. 1985). The following holding emanates directly from Robinson at p.1353: The first issue presented in this appeal is whether the provisions of the handbook and manual are part of the contract of employment. We are of the opinion they are. Id. 10

16 The part of holding is extremely important. The procedures contained in the Handbook are part of what Judge Jones is entitled. Whiting, supra. The Handbook entitles the employee to the procedures contained in it. When those procedures are not complied, the employee has a viable claim. Here, the procedures were completely ignored. The standards as to who should remain employed were ignored (she was the senior judge). Consequently, the issue here, i.e. Rosen, supra, is for the trier of fact to resolve. III. SUMMARY JUDGMENT SHOULD NOT BE COUNTENANCED WHEN EVEN THE CITY CONCEDES THAT ALL MATERIAL FACTS ARE CONTESTED It was agreed that this matter is a pure jury case. T 16 As can be seen, the City made this clear to the Court. T 16 Although it is not disputed that someone with the City provided the media with the slanderous words that Judge Jones has stated to the trial court and this court, all other material facts are disputed herein. Indeed, every Request for Admission was denied by the City. R 0096, RE 3 The Answer filed is a complete denial. R0012 Consequently, we know there are numerous genuine issues of material fact that should preclude summary judgment. MRCP Rule 56 We also know that neither Judge Jones Rule 56 (f) motion was ruled upon nor was the City s Motion for Protective Relief ruled upon. R90-92 That motion evidences that the City wanted one sided discovery, but wanted all discovery efforts on the part of Plaintiff stayed. R 92 The Motion for Protective Relief was disputed by Judge Jones. R 100 Every aspect of that motion was disputed. One of the many reasons it was disputed was that it was disingenuous of the City to contend that discovery was not needed when it had engaged in the discovery process in that it 11

17 had propounded interrogatories and requests for production of documents that had been dutifully responded by Judge Jones. R In the wake of that motion for protective relief, that was never approved or sustained, the City, unilaterally, refused to cooperate in discovery except for the requests for admission that were denied. The City does not deny herein or in the trial court the denial of the Requests for Admission. T 22 The City also denies the facts delineated in the Affidavit filed by Judge Jones. T 22, R 38 Also, the City never filed the required itemization of material facts that are not contested. T 22, Uniform Cir. Court Rule, 4.03 One can only conclude that all material facts are disputed by the City. Consequently, we have a case where all material facts are genuinely disputed. Summary judgment is clearly not appropriate in these circumstances. MRCP Rule 56 In Triplet v. Dempsey, 633 So.2d 1011 (Miss. 1994), the Mississippi Supreme Court admonished trial courts not to try issues of fact but only decide if there are issues to be tried. The trial court cannot try issues of fact on a Rule 56 Motion; it may only determine if there are issues to be tried. Id. at p Here, the case is replete with genuine issues of material fact. The City concedes this. Consequently, the Jury should have been permitted to resolve these issues upon being well instructed as to the applicable law by the trial court. CONCLUSION In light of the foregoing, it is respectfully submitted that this matter should be remanded to the Circuit Court so that MRCP Rule 56 is complied in all respects. Moreover, the Jury should be allowed to address the genuine issues of material fact that even the City concedes are evident. 12

18 It is respectfully submitted that appropriate discovery should have been allowed herein. Moreover, a full and fair trial should be allowed so that Judge Jones can clear her good name. RESPECTFULLY SUBMITTED on this, the 10 th day of May, Kim T. Chaze Attorney for Plaintiff MSB# Surrey Lane Durham, NH kchaze@comcast.net 13

19 CERTIFICATE OF SERVICE I, Kim T. Chaze do hereby certify that I have, this day, caused to be filed with the Clerk of the Court, the Plaintiff s Reply to Response, via the MEC system which transmitted a notice of filing to the following: L. Clark Hicks Hicks & Bennett, PLLC PO Box Hattiesburg, MS This, the 10 th day of May, Kim T. Chaze 14