                                                       United States Court of Appeals
                                                                Fifth Circuit
               IN THE UNITED STATES COURT OF APPEALS         F I L E D
                       FOR THE FIFTH CIRCUIT                   July 26, 2005
                          ________________
                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-60844
                         Summary Calendar
                         ________________

ARLIES KING

          Plaintiff - Appellant

     v.

NEWTON COUNTY BOARD OF SUPERVISORS; HARRIS KENNETH, individually
and in his official capacity as president of Newton County Board
of Supervisors; MILTON SMITH, individually and in his official
capacity as supervisor of Newton County; L M BONDS, individually
and in his official capacity as supervisor of Newton County;
JIMMY JOHNSON, individually and in his official capacity as
supervisor of Newton County; JAMES SMITH, individually and in his
official capacity as supervisor of Newton County; GEORGE HAYES,
individually and in his official capacity as Chancery Clerk of
Newton County; ZARAH RICKETTS; JOHN DOES

          Defendants - Appellees
_________________________________________________________________

           Appeal from the United States District Court
        for the Southern District of Mississippi, Jackson
                        No. 4:02-CV-499-LN
_________________________________________________________________

Before KING, Chief Judge, and DAVIS and STEWART, Circuit Judges.

PER CURIAM:*




     *
          Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
     Plaintiff-Appellant Arlies King was forced to resign from

her position as Justice Court Clerk in Newton County,

Mississippi.   She brought suit against her employer, the Newton

County Board of Supervisors, alleging several causes of action

under federal and state law.   The district court granted summary

judgment in favor of Newton County.    We AFFIRM.

                          I.   BACKGROUND

A.   Factual Background

     Arlies King was appointed to the position of Justice Court

Clerk for Newton County in June 2000.    When King assumed her new

position, she discovered checks that had been tendered to the

Clerk’s office for payment of traffic fines but had not been

deposited in the County’s bank account.     King also determined

that a vast quantity of traffic citations had not been logged

into the Clerk’s computer system.   King notified Defendant-

Appellee George Hayes, Newton County Chancery Clerk, of her

findings, and Hayes responded by calling the State Auditor.       The

State Auditor initiated an investigation.     The Newton County

Board of Supervisors (the “Board”) instructed King to commence

the process of entering the backlog of citations into the

computer system.

     In November 2001, King contacted Defendant-Appellee Zarah

Ricketts in regard to an overpayment of garnishment funds made to

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Rickets, which was made by King’s predecessor.    King requested

that Ricketts pay the money back.    King alleges that Ricketts

then had a meeting with Justice Court Judge Jan Addy and made

disparaging remarks about King.

     On January 7, 2002, the Board followed its traditional

practice of rehiring all county employees, including King, for

the new year.   Around that same time, the Board became

increasingly unsatisfied with King’s lack of progress toward

rectifying the citation backlog.    In addition, given the incident

involving Ricketts, the Board determined that King had been rude

and unfriendly to clients.    The Board therefore determined that

King would be terminated.    On January 11, 2002, the Board gave

King the opportunity to resign, which she accepted.    On January

15, 2002, King attempted to withdraw her resignation, but the

Board refused to allow her to do so and on January 21, 2002,

voted to accept her resignation.

B.   Procedural Background

     On December 6, 2002, King filed suit against the members of

the Board, Hayes, and Ricketts (collectively, the “Defendants”),

asserting various claims under federal and state law.     King

alleged that the Board: (1) breached her employment contract by

effectively terminating her when the Board forced her to resign;

(2) violated 42 U.S.C. § 1983 by depriving her of a property

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interest, i.e., her employment, without substantive and

procedural due process; (3) conspired to deprive her of a

property interest; (4) committed the tort of intentional

infliction of emotional distress; and (5) discharged her in

retaliation for whistleblowing.

     On August 12, 2004, the district court granted summary

judgment in favor of the Defendants with respect to all five

counts.   The court determined that King could not maintain a

breach of contract claim because she was an at-will employee.

Similarly, the court held that King could not maintain her § 1983

or conspiracy claims because, as an at-will employee, King did

not have a property interest in her continued employment.    The

court also concluded that King could not prevail on her

intentional infliction of emotional distress claim because the

actions by the Defendants could not be considered extreme or

outrageous.   Finally, the court determined that King could not

prevail on her whistleblowing claim because as an at-will

employee, she could be fired for any reason.   The court also held

that this case did not fall into the exception that prohibits at-

will employees from being fired for reporting illegal activities

because there was no illegal activity in King’s case.   On

September 13, 2004, King timely filed the instant appeal.




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                       II.   STANDARD OF REVIEW

     We review a district court’s grant of summary judgment de

novo, applying the same legal standards as the district court.

Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir.

2001).   Summary judgment is appropriate if there are no genuine

issues of material fact and the movant is entitled to judgment as

a matter of law.   FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986).     The initial burden to demonstrate the

absence of a genuine issue of material fact is on the movant.

Celotex, 477 U.S. at 324.     Upon the movant’s meeting this initial

burden, the burden shifts to the non-movant to establish that

there is a genuine issue of material fact in dispute.      Id.

                             III.    ANALYSIS

A.   Breach of Contract

     King argues that the district court erred in finding that

she did not have a valid and enforceable employment contract.

King contends that under Nuwer v. Mariner Post-Acute Network, 332

F.3d 310 (5th Cir. 2003), the Board’s act of rehiring her,

coupled with various employment documents, created an implied

employment contract.   We disagree with King’s argument.

     The Mississippi Supreme Court has declared that “absent an

employment contract expressly providing to the contrary, an

employee may be discharged at the employer’s will for . . . no

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reason at all . . . .” McArn v. Allied Bruce-Terminix Co., 626

So.2d 603, 606 (Miss. 1993)(quoting Shaw v. Burchfield, 481 So.2d

247, 253-54 (Miss. 1985)); see also HeartSouth, PLLC v. Boyd, 865

So.2d 1095, 1108 (Miss. 2003).    Newton County’s employment manual

states:

           It is the County’s policy that all employees who
           do not have a written employment contract with the
           County for a specific fixed term of employment are
           employed at the County’s will and are subject to
           termination at any time . . . . [T]he County’s
           policies and practices with respect to any matter
           are   not  to  be   considered  as   creating  any
           contractual obligation on the County’s part . . .
           .


Thus, it is clear that the Board could not have changed King’s

at-will status by acting at a Board meeting, even if it had

explicitly stated that it wished to change the terms of King’s

employment.    Further, the minutes of the January 7 meeting do

nothing to reflect that the Board intended to change King’s

status.   The meeting minutes state: “Motion by Kenneth Harris,

seconded by Jimmy Johnson to re-hire all County Employees for the

2002 year.    Motion carried unanimously.”   In short, there is no

evidence whatsoever to indicate that the Board’s actions on

January 7 abrogated King’s at-will status.    Because she was an




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at-will employee at the time of her termination,1 she is

precluded from contesting her termination on a breach-of-contract

theory.       We thus affirm the district court’s judgment as to

King’s first count.

B.     Deprivation of Property Interest in Violation of 42 U.S.C.
       § 1983

       King also argues that the Board violated her due process

rights in voting to accept her resignation.                       King points to the

fact that the Board voted on her resignation by telephone, as

opposed to in person, and asserts that such a vote, combined with

the knowledge of her rescinding her resignation, was not

sufficient to accept her resignation and only evinces a

premeditated plan to terminate her.                   She argues that this

violation of due process violates her Fourteenth Amendment rights

because she had a property interest in her continued employment.

She seeks to vindicate this violation through 42 U.S.C. § 1983.

       In Johnson v. Southwest Mississippi Regional Medical Center,

878 F.2d 856, 858 (5th Cir. 1989), we held that a public employee

has a property interest in her continued employment if she can

prove a claim of entitlement to such a property interest by

reference to a: (1) statute; (2) written contract; or (3)




       1
               We assume, arguendo, that King’s resignation was equivalent to being
terminated.

                                            - 7 -
mutually explicit understanding enforceable as an implied

contract.   King seems to argue that the third option--an implied

contract--established a property interest in her employment.

However, as discussed above, Newton County’s employment manual

precludes any claim of a mutual understanding that King was not

an at-will employee.   Because King had no property interest in

her employment, her § 1983 claim fails.

C.   Conspiracy to Deprive a Property Interest

     With respect to her conspiracy claim against Ricketts, King

asserts that Ricketts did not file for summary judgment and that

Ricketts’s “Affidavit of Joinder” is not sufficient for disposing

of the claims against Ricketts on summary judgment.    Further,

King asserts that Ricketts provided no proof refuting the

allegations that she engaged in a conspiracy to have King

terminated.   As for the other conspiracy defendants, King asserts

that there were genuine issues of material fact that precluded

summary judgment.

     We need not consider the issue of whether Ricketts was

properly joined because the overall conspiracy allegation cannot

be sustained.   Under Mississippi law, a conspiracy is defined as

“a combination of persons for the purpose of accomplishing an

unlawful purpose or a lawful purpose unlawfully.”     Delta Chem. &

Petroleum, Inc. v. Citizens Bank of Byhalia, Miss., 790 So.2d

                               - 8 -
862, 877 (Miss. 2001) (quoting Levens v. Campbell, 733 So.2d 753,

761 (Miss. 1999)).   “It is elementary that a conspiracy requires

an agreement between the co-conspirators.”   Gallagher Bassett

Servs., Inc. v. Jeffcoat, 887 So.2d 777, 786 (Miss. 2004).     King

points to no evidence raising a genuine issue as to the existence

of an agreement to commit an illegal act that would form the

basis of the alleged conspiracy.   Further, as discussed above,

King had no property interest in her continued employment.   The

defendants cannot be liable for conspiring to deprive King of

something that she never possessed and that never existed.

D.   Intentional Infliction of Emotional Distress

     With respect to her intentional infliction of emotional

distress claim, King argues that the Board’s threat to fire her

caused her distress that was so severe that it caused her to seek

medical attention.   According to King, the degree of her distress

created a factual issue as to whether the Board’s actions were

sufficiently egregious.   Under Mississippi law, to create

liability for intentional infliction of emotional distress, the

complained-of conduct “must have been so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable

in a civilized community.”   Brown v. Inter-City Fed. Bank for

Sav., 738 So.2d 262, 265 (Miss. Ct. App. 1999) (internal

                               - 9 -
quotation marks omitted).    King has pointed to no evidence in the

record that raises a genuine issue as to whether the Defendants

ever engaged in such egregious behavior.    Accordingly, the

district court properly dismissed King’s intentional infliction

of emotional distress claim.

E.   Retaliatory Discharge/Whistleblowing

     Finally, as to her whistleblowing claim, King contends that

the amount of money that was implicated in the investigation,

i.e., $1 million, and the fact the investigation was closed a

year after she was terminated, show that she was terminated for

whistleblowing.    King acknowledges that terminated at-will

employees typically cannot sue their former employer regarding

their dismissal.    However, she points to a “whistleblower”

exception to this principle.    In McArn, 626 So.2d at 607, and

Willard v. Paracelsus Health Care Corp., 681 So.2d 539, 542

(Miss. 1996), the Mississippi Supreme Court established a narrow

public policy exception to the employment at will doctrine when

an employee is terminated for: (1) refusing to participate in an

illegal act; or (2) reporting her employer’s illegal acts to her

employer or third parties.    King alleges that her termination

falls into the second exception, arguing that the mismanagement

of almost $1 million constitutes such an extreme dereliction of

duty as to be illegal.    We disagree.   King cites to no authority

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explaining how the mismanagement she discovered qualifies as a

criminal violation.   Indeed, the State Auditor brought no

criminal charges, and King acknowledges as much.   Without any

reason to believe that King reported illegal activity, we cannot

find that her termination qualifies under McArn’s whisteblower

exception.   Thus, we affirm the district court’s judgment as to

her whistleblower claim.

                            IV.   CONCLUSION

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.




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