IN THE SUPREME COURT OF MISSISSIPPI NO. 2019-IA-00324-SCT SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY

v. REGINA THOMAS AND PAM PILGRIM

DATE OF JUDGMENT: 02/04/2019 TRIAL JUDGE: HON. W INSTON L. KIDD TRIAL COURT ATTORNEYS: DION JEFFERY SHANLEY W

. THOMAS SILER, JR. JASON THOMAS MARSH ALAN M. PURDIE COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: W

. THOMAS SILER, JR. MALLORY KAYE BLAND GREGORY TODD BUTLER JASON THOMAS MARSH ATTORNEYS FOR APPELLEES: DION JEFFERY SHANLEY ALAN M. PURDIE NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE DISPOSITION: REVERSED AND RENDERED - 08/06/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE KITCHENS, P.J., MAX W ELL AND CHAMBERLIN, JJ.
MAX WELL, JUSTICE, FOR THE COURT: ¶1. Form er Southern Farm Bureau Lif e I nsurance Com

pany e m ploy ees Regina Thom a s and Pam Pilgrim f

iled s uit against the com

pany claim ing they were wrongf ully d ischarged.
W h ile recognizing M ississippi is an at-will-em ploy m ent state, the f

orm er em ploy ees allegedS o u thern Farm B ureau’s em ploy ee handbook a ltered their a t-will status. They insist t h e handbook conf

erred certain substantive and procedural rights, including the right not to be discrim inated a gainst based on gender a nd age, which they suggest they were denied. But
upon review, t h e em

ploy e e handbook expressly disclaim ed the f orm a t ion of any em

ploy m ent
contract. So under Mississippi law, Thom a s a n d Pilgrim rem ained at-will em ploy ees. This

m eant they could be f

ired f or good reason, bad reason, or no reason at a l l, except f or reasons independently

declared legally

im perm i ssible. ¶2. Term ination m otivated by discrim ination has been declared legally im perm issible by
f ederal s tatutory law. But h e re, Thom as and Pilgrim have disavowed a ny reliance on f ederal law in m aking their claim

. R ather than having exhausted t heir adm inistrative rem e dies—as
i s required w hen bringing a gender-discrim ination claim —they ask this Court t o c r e a t e a n exception to an already e xisting exception to the at-will d octrine. This requested action would allow them to avoid t he express procedural requirem ents f o r f ederal discrim ination claim s. But this C ourt has r ec o g n i z e d that creating e xceptions to the at-will doctrine is a legisla t i v e concern, not a j udicial task. Because Congress has a lready created a discrim ination-based exception t o the at-will doctrine—which Thom as and Pilgrim f ailed to pursue—we reject their request. ¶3. Taking the allegations in the c o mp l a i n t a s t r u e , T h o ma s a nd Pilgrim have no wrongf ul-term ination claim . The em ploy ee handbook did not alter t heir at-will status, and they have abandoned the f ederal s tatutory discrim ination exception t o t h e a t -will doctrine. The related claim s in their com plaint s im ilarly f

ail as a m atter of law. Thus, we reverse the

2order deny ing Southern Farm B ureau’s m otion f or s um m ary j udgm ent and render a j udgm ent dism issing all claim s against Southern Farm Bureau.
B ackground Facts and Procedural History ¶4. T h o ma s a n d P i l g r i m s u e d Southern F arm Bureau in the Circuit C ourt of Hi n d s County , Mississippi. Their nine-count com plaint asserted c l aim s of (1) wrongf ul discharge, (2) b r e a c h o f contract, (3) breach of good f aith and f air dealing, (4) negligence, (5) gross negligence, (6) def

am ation, (7) invasion of p rivacy , (8) intentional inf licti o n o f e motional distress, and (9) negligent inf l iction of em o tional distress. ¶5. According to their com p laint, bef

ore they were f

ired, b oth w ere long-term

em ploy ees in Southern Farm Bureau’s a dm inistrati v e - services departm ent. They also had a separate cleaning com

pany that contracted with S o u t h e rn Farm Bureau. Af ter an internal investigation into the cleaning com pany ’s invoices, Southern Farm Bureau term inated both

wom en, accusing the two of thef t and dishonesty

. ¶6. Because the com plaint alleged T h o ma s ’ s a n d P i l g r i m ’ s t e r mi n a t i o n s w e re “a pretextual m eans of avoiding f ederal proscriptions against g ender discrim ination,” Southern
Farm Bur e a u r e mo v e d the c om plaint to f ederal court. But the f

ederal c ourt rem anded the

case to state court. It did so based on Thom as and Pilgrim ’s express assertions that they were bringing claim s based solely on Mississippi la w . A c c o r ding to the f ederal court’s rem and order, Thom as a nd P ilgrim “m aintain[ e d]

. . . that they have not asserted their claim s under
f ederal law and are instead traveling solely under state law to enf orce their right, based on the public policy of M ississippi and/or arising under the antidiscrim ination provisions of

3Southern Farm Bureau’s em ploy ee handbook, t o be f

ree f rom discrim inatio n b a sed on gender and/or age.” ¶7. Following rem and, Sou t h e r n F arm Bureau f i led a m otion to d ism iss the com plaint under Mississippi Rule of Civil P rocedure 12(b)(6) or, alternatively , f or sum m ary j udgm ent under M ississippi Rule of Civil Procedure 56(c). Southern Farm Bureau argued T hom as and Pilgrim ha d n o v i a b l e claim f or wrongf

ul term ination under the em ploy ee handbook or Mississippi law. 1 ¶8. At the m otion hearing, the p arties discussed w ith t he c o u r t w h e t h e r t o t r e a t t h e pending m otion as a m otion to dism iss on the pleadings or a sum m ary judgm en t mo t i on. Both parties subm itted a docum ent outside the p leadings. Southern Farm Bureau attached

t o i t s m otion a copy o f the written disclaim e r in t he em ploy e e h andbook. And l a t e r i t subm itted the entire handbook. T hom as and Pilgrim responded w ith an af f idavit by Thom as.

1 In af f irm in g th e d en i al o f T h o m as a n d P ilg rim ’ s r eq u est f o r f ees related to th e rem an d o f th eir l a w su it to state co u rt, th e F if th C ircu i t reco g n ized th at S o u th e rn F a rm B u reau h ad an “o b

j ectiv ely reaso n ab l e b asis f o r seek in g rem o v al” to f

ed eral co u rt. T

h o m a s v. S . F a r m B u rea u L ife In s. C

o . , 7 5 1 F . A p p ’x 5 3 8 , 5 4 0 (5 th C ir. 2 0 1 8 ). A s su p p o rt, th e F if th C ircu it n o ted , “o n ly f ed eral law o f

f ers relief f

o r p lain tif

f s’ ‘w r o n g f

u l d isch arg e’ claim .” Id

. “M i ssissip p i l a w d o es n o t reco g n ize claim s o f ag e o r g en d er (sex ) d iscrim in atio n .” I

d . at 5 4 1

. A s th e F if

th C i rcu it p u t it, “[ t] h ere is n o s tate an t id iscrim in atio n statu te[

. ] ” I

d . (citin g P

eg u es v. M

iss. S ta te V etera n s H

o m e , N o . 3 :1 5 -C V -0 0 1 2 1 -M P M

JM V , 2 0 1 7 WL 3 2 9 8 6 8 4 , at * 5 (N .D

. M iss. A u g . 2 , 2 0 1 7 )). “[ A ] n d M i ssissip p i ‘f o llo w [ s] th e c o m m o n -law ru le o f at-w ill em p lo y m en t.’” Id

. (q u o tin g S w in d

o l v. A u ro ra F

lig h t S cis. C o rp . , 1 9 4 S o . 3 d 8 4 7 , 8 4 9 (M iss. 2 0 1 6 )). “T h u s, ‘w r o n g f u l-d isch arg e s u its in M ississip p i g en erally m

u st b e b ased u p o n w r itten e m p lo y m en t co n tracts.’” Id

. (q u o tin g C

m ty. C a re C tr. o f A b erd een v. B a rren tin e , 1 6 0 S o . 3 d 2 1 6 , 2 1 7 (M iss. 2 0 1 5 )).

4¶9. Followi n g t h e hearing, t he circuit c ourt sum m arily denied the m otion. This Court

granted Southern Farm

Bureau’s petition to f

ile an interlocutory appeal.
Standard of Review ¶10. Procedurally , w e approach Southern Farm Bureau’s m otion as a sum m ary judgm ent

m otion under Rule 56(c), viewing the evidence subm itted t o the trial court i n the light m ost f avorable to Thom as and Pilgrim, t h e n onm ovants. H y de v. Martin , 264 So. 3 d 730, 734 (Miss. 2019). B ut because there has been no discovery , we take as true the allegations in the

com plaint to the extent they are consistent with the evidence in the r ecord, s im ilar to a Rule
12 m o tion to dism iss. S

ee Scaggs v. GPCH-GP, Inc. , 931 So. 2d 1 274, 1275 (Miss. 2006) (standard of

review f or m otion to dism iss). ¶11. Under Rule 5 6(c), s um m ary judgm e n t “shall be rendered f o rthwith if

the pleadings, depositions, answers to interrogatories and adm i ssions on f ile, t ogether with the af

f idavits,
if any , show that there i s no g e nuine issue as to any m a terial f act and that the m oving party is entitled to a judgm ent as a m atter of law.” M.R.C.P. 5 6(c). This Court reviews de novo the denial of S outhern Farm Bureau’s m otion f or sum m ary

judgm ent. Hyde , 264 So. 3d at 734. W ith this standard in m ind, we reverse the denial of sum m ary judgm ent and render a judgm ent in Southern Farm Bureau’s f avor. Discussion
I. Wrongful-Discharge Claim s ¶12. Southern F arm Bureau argues T h o ma s a n d P i l g r i m h a ve no claim f or wrongf ul discharge based on Mississippi’s at-will-em ploy m e nt doctrine. In response, Thom as and

5Pilgrim concede Mississippi f ollows the l o ngstanding com m on law r ule of at-will

em ploy m ent. Swindol v. Aurora Flight Scis. Corp. , 194 So. 3 d 847 , 850 (Miss. 2016) (citing Kelly v. Miss. V

alley G as Co. , 397 So. 2d 874, 874-75 (Miss. 1981); Butler v. Sm ith , 3 5 Miss. 457 (1858)). Under the at-will-em ploy m ent doctrine, “ a

bsent an em

ploy me n t
contract e xpressly providing t o t h e c o n t r ary , a n em p loy ee m ay be discharged at the

em ploy e r’s will f

or good reason , bad reason, or no reason at all, excepting only reasons independently declared legally im perm i ssible.” McArn v. Allied Bruce-Term i nix Co., Inc.,
626 So. 2d 603, 606 ( Miss. 1993) (quoting Shaw v. B urchfield , 481 S o. 2d 247, 254 (Miss. 1985)).
A. Em

p loyee Handbook ¶13. S t ill, Thom as and Pilgrim argue S outhern Farm B ureau “abr o g a t e d ” t h e a t

- w i l l doctrine. They point to the c om pany ’s com

prehensive em

ploy ee handbook, which covered antidisc r im ination, progressive discipline, and em ploy ee investigations. T hey base their claim s of wrongf

ul discharge, b reach of contract, b r e a c h of good f aith and f a i r dealing, negligenc e , and gross negligence specif ically and exclusively on the em ploy ee handbook. And they claim these handbook provisions conf erred substantive and procedural rights. As support, t hey cite Bobbitt v . Orchard, Ltd. , 603 So. 2d 356, 361 (Miss. 1992). In Bobbitt , this Court held that a n em

ploy e e m anu a l detailing d iscipline and term i nation had b ecom e part of an em ploy m e nt contract t hat had to be f ollowed. B ut t h e r e i s a m aterial dif f erence between the handbook in Bobbi t t a n d t h e one h ere. In Bobbitt , there was “ n o express disclaim er or contractual p r o v i s i on that the m anual did not af f ect the em

ploy er’s right to

6term inate the e mploy ee at will

. . . .” Id. at 362. Here, by sharp c ontrast, Southern Farm

Bureau’s e m

ploy ee handbook be g an with the express disclaim er, “ This handbook is not a
contract o f em

ploy m ent

. . . .” Thom as and Pilgrim adm it this disclaim er exists but dism iss it as “boilerplate.” Essentially , t hey ask this Court t o ignore the express provision at the f ront of the handbook that warns the handbook is not a contract. They pref er we o verlook this disclaim er and elevate the handbo o k ’ s r em aining p rovisions to the s tatus o f a binding

em ploy m ent contract. But their request collides with t h e h a n d b ook’s language. It also contradicts exi s t i n g law that t he at-will-em ploy m ent doctrine c an be altered only by “an

em ploy m ent c ontract expressly p r o v i ding to the contrary .” McArn , 6 26 So. 2d at 606 (em phasis added). ¶14. S o u t h e r n F a r m B u r e a u ’s em ploy ee handbook expressly s tated t hat Thoma s a n d Piglrim ’s at-will status was n ot being altered. C onsequently , their cl a i m s f or wrongf

ul dischar g e , breach o f contract, breach of good f aith and f air d ealing, negligence, and gross negligence f

ail as a m atter of law. ¶15. W e dism iss these claim s.

B. Public Policy ¶16. Alternatively , Thom as and Pilgrim a s k t h i s Court to create a com m on-law cause of action f or wrongf ul term i nation based on an “existing y et dorm ant public policy against age and/or gender discrim ination.” ¶17. Im portantly , Thom a s and Pilgrim are not a sking that we f inally recognize a cause o f action b ased on discrim ination in the workplace. Indeed, such actions already exist. Title

7VII of the Civil Rights Act o f 1964 prohibits adverse em ploy m ent d ecisions m otivated by sex discrim ination. 42 U

. S

. C

. § 2 0 00e et seq. (2012). A nd the Age Discrim ination in
Em ploy m ent Act o f 1967 protects older em ploy ees against discrim ination. 29 U.S.C. § 621

et seq. (2012). So u nder these statutes, Mississippi em ploy e es wrongf

u lly term inated f

rom their jobs due to s ex and/o r a g e d i s crim ination already have t he a bility to sue their f

orm er

em ploy e rs in Mississippi c ourts. 2 E.g. , Cash Distrib. Co. v. N e e l y , 947 So. 2d 286 (Miss. 2007) (f orm er em ploy ee brought wrongf

ul-term ination a c tion under A DEA alleging age discrim ination); Partain v. Sta-Hom e H e a l t h A gency of Jackson, Inc. , 9 04 So. 2d 1112, 1116 (Miss. Ct. App. 2004) (f orm er em ploy ee brought wrongf

ul-term ination action under Title VII alleging h e r term i nation was m otivated by her gender and h er pregnancy ). As with other s tatutory causes of a ction, em ploy ees are required f

i rst to exhaust their adm inistrative

rem edies—nam ely , b y f i ling a com

plaint with the Equal Em ploy m ent Opportunity
Com m i ssion. Apparently , Thom as and Pilgrim f ailed t o do this. That is w hy t hey abandoned
any f e deral-law claim

when their lawsuit was rem o ved to f e deral court. ¶18. In o ther words, by asking this Court t o judicially carve out a public-policy exception

to the at-will doctrine based on discrim ination, Thom as and Pilgrim are really seeking a new

com m on-law alternative to f ederal statutory c l aim s . They are requesting this—not because Title VII and the ADEA do not s uf f iciently prote c t t h e i r r ights or align with Mississippi public policy

—but because they

did not properly

pursue these statutory

claim s.

2 “S tate c o u rts h av e co n cu rren t j u risd ictio n w i th f ed eral d istrict co u r

ts o v e r T itle V II cases.” B u rk

s v. A m i te C ty. S ch . D ist. , 7 0 8 S o . 2 d 1 3 6 6 , 1 3 7 1 (M i ss. 1 9 9 8 ) (citin g Y ello w F r eig h t S ys., In c. v. D o n n elly , 4 9 4 U .S

. 8 2 0 , 8 2 4

- 8 2 5 , 1 1 0 S

. C t. 1 5 6 6 , 1 0 8 L

. E d

. 2 d 8 3 4 (1 9 9 0 )). 8¶19. In o nly two circum stances has this Court recognized a com m on-law tort based on “a

narrow public policy exception to the em ploy m ent at will d octrine.” 3 McArn , 6 26 So. 2d at 607. I n a ll other cases, we have def erred to t he legislative process to create exceptions to the at-will doctrine. E.g. , S

windol , 1 94 So. 3d at 852 (observing there was no need to “judicially graf t another ‘exception’ to the e m ploy m ent-at-will doctrine

. . . because t h e L e g i slature already h as”); Kelly v. Miss. V alley Gas Co. , 397 So. 2d 874, 876 (Miss. 1981) (“Plaintif f ’s
argum ents in f

avor of a cause of action f or retaliatory discharge under the f acts alleged in his bill have consi d e r a b l e appeal. However, the m erits o f his argum ents are clearly f or the Legislature to assess, not the judiciar y .”). Indeed, this Court’s expression of the at-will doctrine r ecognizes creating exceptions is a legislative t ask. U nder the a t-will doctrine, “an

em ploy e e m ay be discharged at t he em ploy er’s will f

o r good r eason, bad reason, or no reason
at all, excepting only reasons i ndependently declared legally impermissible .” M cArn , 626 So. 2d at 606 (em

phasis added) (quoting Shaw , 481 So. 2d at 254); see also Kelly , 397 So. 2d at 875 (recognizi n g t h a t “ the harshness o f t he t erm inable at will rule is subject to

3 T h ese ex cep t io n s are: (1 ) an em p lo y ee w h o ref

u ses to p articip ate i n an illeg al act

. . . sh all n o t b e b arred b y th e co m m o n law ru le o f em p lo y m en t at w ill f

ro m b rin g i n g an actio n in to rt f o r d am ag e s ag ain st h is em p lo y er; [ an d ] (2 ) an em p lo y ee w h o is d isch arg ed f o r rep o rtin g illeg al acts o f h is em p l o y er to th e e m

p lo y er o r an y o n e else is n o t b arred b y th e em p lo y m en t a t w i l l d o ctrin e f ro m b rin g in g actio n in to rt f

o r d am ag es ag ain st h is em p lo y er. M cA rn , 6 2 6 S o . 2 d at 6 0 7

.
9exception in light of e xpress legislative action” (quoting Green v. Am erada-Hess Corp. , 612

F.2d 212, 214 (5th Cir. 1980))). ¶20. T e r mi n a t i o n s m otivated by sex a nd a ge d i s c r i mi n a t i o n h a v e a l r e a d y b e e n “independently declared l e gally im perm issible” under Title VII and the A D EA. M cArn , 626
So. 2d at 606. So, as in Swindol , there is no void necessitating this Court “judicially graf t another ‘exception’ to the e m p loy m ent at-will-doctrine” because exceptions f o r s ex and/or
age discrim ination already exist. Swindol , 194 S o. 3d at 852. Taking as true T hom as and Pilgrim ’s allegations that the given reason f o r t heir term inations was a pretext f or gender and age discrim ination, Thom as and Pilgrim had a cause of a c tion under f e deral law. But they
f ailed to properly p ursue i t. And when f acing a f e deral j udge—when their case was rem oved

to district court—they af

f irm a tively disavowed seeking a f ederal rem edy

. F or t his r eason, we decline to grant their request to judicially create a c om m on-law cause of action—or an exception to an already existing excepti on—advanced seem i ngly t o skirt the p rocedural requirem ents of

their statutory

cause of action.
II. Defam ation and Invasion-of-Privacy Claim s ¶21. In addition to claim s r e l a t e d t o w rongf u l discharge, T hom as and Pilgrim asserted claim s f or def am ation and invasion of privacy (f a l se light). They based these a llegations on assertions that Southern Farm Bureau told its em ploy ees the two were term inated f or stealing

m oney f rom the com pany . W e dism iss these claim s too. ¶22. Both d e f

a ma t i o n a n d invasion of privacy are subject to t he def ense of privilege.
Y o ung v. J ackson , 572 So. 2d 378, 383 (Miss. 1990). And this Court recognizes a qualif ied

1 0privilege f

or statem ents m ade in the context of the e m ploy er/em

ploy ee r e lationship. Id. Taking the a llegations in Thom as and Pilgrim ’s com plaint a s true, Southern Farm Bureau’s

com m unications t o its e m

ploy ees about w hy Thom as and Pilgrim were term inated f ell under this privilege. ¶23. Thom as and Pilgrim allege Southern F arm Bureau em ploy ees in turn “dissem inated tha t i n f orm ation to the g e neral public including m e m bers o f the church where Plaintif f Thom a s’ f

am i ly m e mbers attend.” W hile these alleged outside-of -work com m

u nications would not have been p rivileged, they also are not a ttributable to Southern Farm B ureau, the only def endant nam ed i n the com

plaint. Allegedly gossiping to non-coworkers about f orm er coworkers in social gatherings such as S u nday S chool is outside the course and scope of

em ploy m ent. Such activity neither “carr[ ies] o ut the em ploy er’s purpos e o f the

em ploy m ent,” nor is i t “ in f

urtherance of the em

ploy er’s b usiness.” Cockrell v. Pearl River
V alley W ater Supply D ist. , 865 So. 2d 357, 361-62 (Miss. 2004) (citing S eedkem South, Inc.

v. Lee , 391 So. 2d 9 9 0 , 9 9 5 ( M i ss. 1980). So Southern Farm Bureau c annot be liable f or these individuals’ allegedly def a m atory and tortious rum ors. III. Em otional-Distress Claim s ¶24. Finally , we also dism iss Thom as and Pilgrim ’s claim s of intentional i n f l i c t ion and negligent inf

liction of em otional d istress. Their claim f or negligent inf

liction of em otional distress is barred by the exclusivity provision of t h e M i s s issippi W orkers’ Com pensation Act.
Bowde n v

. Y o u n g , 120 So. 3d 971, 976 (Miss. 2013). And “dam ages f or i ntentional
inf liction of em otional distres s a re usually not recoverable in m ere em p loy m ent disputes.”

1 1Raiola v. C hevron U .S.A., Inc. , 872 So. 2d 79, 85 (Miss. C t. App. 2004). “Only in the m ost unusual cases does the conduct m ove out of the ‘realm of a n ordinary e m ploy m ent dispute’ into the classif

ication of ‘extrem e and outrageous,’ as required f o r t h e t ort of i ntentional
inf liction of em otional distress.” Prunty v. Arkansas F r eightways, Inc. , 16 F.3d 649, 654 (5th Cir. 1 994) (citations om i tted). Thom as and Pilgrim f ail to allege “ cond u c t

. . . ‘so

ou t r a g e o u s in character, and so extrem e in degree, a s to go bey o nd all possible bounds of decency , a nd to be regarded as atrocious, and utterly intolerable in a civilized c om m unity .’”
Bowden , 120 So. 3d at 980 (quoting Pegues v. Em e r son Elec. Co. , 913 F. Supp. 976, 982 (N.D. Miss. 1996)).
Conclusion ¶25. For these reasons, we reverse the t rial c o u r t ’ s d e c i s i o n a n d r e n d e r a j udgm ent dism issing all claim s against Southern Farm Bureau. ¶26. REVERSED AND RENDERED. RANDOLPH, C.J., K ITCHENS AND K I N G , P.JJ., COLEMAN, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

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