                   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. WINSTON L. KIDD
TRIAL COURT ATTORNEYS:                   DION JEFFERY SHANLEY
                                         W. THOMAS SILER, JR.
                                         JASON THOMAS MARSH
                                         ALAN M. PURDIE
COURT FROM WHICH 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., MAXWELL AND CHAMBERLIN, JJ.

      MAXWELL, JUSTICE, FOR THE COURT:

¶1.   Former Southern Farm Bureau Life Insurance Company employees Regina Thomas

and Pam Pilgrim filed suit against the company claiming they were wrongfully discharged.

While recognizing Mississippi is an at-will-employment state, the former employees alleged
Southern Farm Bureau’s employee handbook altered their at-will status. They insist the

handbook conferred certain substantive and procedural rights, including the right not to be

discriminated against based on gender and age, which they suggest they were denied. But

upon review, the employee handbook expressly disclaimed the formation of any employment

contract. So under Mississippi law, Thomas and Pilgrim remained at-will employees. This

meant they could be fired for good reason, bad reason, or no reason at all, except for reasons

independently declared legally impermissible.

¶2.    Termination motivated by discrimination has been declared legally impermissible by

federal statutory law. But here, Thomas and Pilgrim have disavowed any reliance on federal

law in making their claim. Rather than having exhausted their administrative remedies—as

is required when bringing a gender-discrimination claim—they ask this Court to create an

exception to an already existing exception to the at-will doctrine. This requested action

would allow them to avoid the express procedural requirements for federal discrimination

claims. But this Court has recognized that creating exceptions to the at-will doctrine is a

legislative concern, not a judicial task. Because Congress has already created a

discrimination-based exception to the at-will doctrine—which Thomas and Pilgrim failed to

pursue—we reject their request.

¶3.    Taking the allegations in the complaint as true, Thomas and Pilgrim have no

wrongful-termination claim. The employee handbook did not alter their at-will status, and

they have abandoned the federal statutory discrimination exception to the at-will doctrine.

The related claims in their complaint similarly fail as a matter of law. Thus, we reverse the



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order denying Southern Farm Bureau’s motion for summary judgment and render a judgment

dismissing all claims against Southern Farm Bureau.

                       Background Facts and Procedural History

¶4.    Thomas and Pilgrim sued Southern Farm Bureau in the Circuit Court of Hinds

County, Mississippi. Their nine-count complaint asserted claims of (1) wrongful discharge,

(2) breach of contract, (3) breach of good faith and fair dealing, (4) negligence, (5) gross

negligence, (6) defamation, (7) invasion of privacy, (8) intentional infliction of emotional

distress, and (9) negligent infliction of emotional distress.

¶5.    According to their complaint, before they were fired, both were long-term employees

in Southern Farm Bureau’s administrative-services department. They also had a separate

cleaning company that contracted with Southern Farm Bureau.               After an internal

investigation into the cleaning company’s invoices, Southern Farm Bureau terminated both

women, accusing the two of theft and dishonesty.

¶6.    Because the complaint alleged Thomas’s and Pilgrim’s terminations were “a

pretextual means of avoiding federal proscriptions against gender discrimination,” Southern

Farm Bureau removed the complaint to federal court. But the federal court remanded the

case to state court. It did so based on Thomas and Pilgrim’s express assertions that they were

bringing claims based solely on Mississippi law. According to the federal court’s remand

order, Thomas and Pilgrim “maintain[ed] . . . that they have not asserted their claims under

federal law and are instead traveling solely under state law to enforce their right, based on

the public policy of Mississippi and/or arising under the antidiscrimination provisions of



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Southern Farm Bureau’s employee handbook, to be free from discrimination based on gender

and/or age.”

¶7.    Following remand, Southern Farm Bureau filed a motion to dismiss the complaint

under Mississippi Rule of Civil Procedure 12(b)(6) or, alternatively, for summary judgment

under Mississippi Rule of Civil Procedure 56(c). Southern Farm Bureau argued Thomas and

Pilgrim had no viable claim for wrongful termination under the employee handbook or

Mississippi law.1

¶8.    At the motion hearing, the parties discussed with the court whether to treat the

pending motion as a motion to dismiss on the pleadings or a summary judgment motion.

Both parties submitted a document outside the pleadings. Southern Farm Bureau attached

to its motion a copy of the written disclaimer in the employee handbook. And later it

submitted the entire handbook. Thomas and Pilgrim responded with an affidavit by Thomas.




       1
          In affirming the denial of Thomas and Pilgrim’s request for fees related to the
remand of their lawsuit to state court, the Fifth Circuit recognized that Southern Farm
Bureau had an “objectively reasonable basis for seeking removal” to federal court. Thomas
v. S. Farm Bureau Life Ins. Co., 751 F. App’x 538, 540 (5th Cir. 2018). As support, the
Fifth Circuit noted, “only federal law offers relief for plaintiffs’ ‘wrongful discharge’
claim.” Id. “Mississippi law does not recognize claims of age or gender (sex)
discrimination.” Id. at 541. As the Fifth Circuit put it, “[t]here is no state antidiscrimination
statute[.]” Id. (citing Pegues v. Miss. State Veterans Home, No. 3:15-CV-00121-MPM-
JMV, 2017 WL 3298684, at *5 (N.D. Miss. Aug. 2, 2017)). “[A]nd Mississippi ‘follow[s]
the common-law rule of at-will employment.’” Id. (quoting Swindol v. Aurora Flight Scis.
Corp., 194 So. 3d 847, 849 (Miss. 2016)). “Thus, ‘wrongful-discharge suits in Mississippi
generally must be based upon written employment contracts.’” Id. (quoting Cmty. Care Ctr.
of Aberdeen v. Barrentine, 160 So. 3d 216, 217 (Miss. 2015)).



                                               4
¶9.    Following the hearing, the circuit court summarily denied the motion. This Court

granted Southern Farm Bureau’s petition to file an interlocutory appeal.

                                   Standard of Review

¶10.   Procedurally, we approach Southern Farm Bureau’s motion as a summary judgment

motion under Rule 56(c), viewing the evidence submitted to the trial court in the light most

favorable to Thomas and Pilgrim, the nonmovants. Hyde v. Martin, 264 So. 3d 730, 734

(Miss. 2019). But because there has been no discovery, we take as true the allegations in the

complaint to the extent they are consistent with the evidence in the record, similar to a Rule

12 motion to dismiss. See Scaggs v. GPCH-GP, Inc., 931 So. 2d 1274, 1275 (Miss. 2006)

(standard of review for motion to dismiss).

¶11.   Under Rule 56(c), summary judgment “shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). This Court reviews de novo

the denial of Southern Farm Bureau’s motion for summary judgment. Hyde, 264 So. 3d at

734. With this standard in mind, we reverse the denial of summary judgment and render a

judgment in Southern Farm Bureau’s favor.

                                         Discussion

       I.     Wrongful-Discharge Claims

¶12.   Southern Farm Bureau argues Thomas and Pilgrim have no claim for wrongful

discharge based on Mississippi’s at-will-employment doctrine. In response, Thomas and



                                              5
Pilgrim concede Mississippi follows the longstanding common law rule of at-will

employment. Swindol v. Aurora Flight Scis. Corp., 194 So. 3d 847, 850 (Miss. 2016)

(citing Kelly v. Miss. Valley Gas Co., 397 So. 2d 874, 874-75 (Miss. 1981); Butler v. Smith,

35 Miss. 457 (1858)). Under the at-will-employment doctrine, “absent an employment

contract expressly providing to the contrary, an employee may be discharged at the

employer’s will for good reason, bad reason, or no reason at all, excepting only reasons

independently declared legally impermissible.” McArn v. Allied Bruce-Terminix Co., Inc.,

626 So. 2d 603, 606 (Miss. 1993) (quoting Shaw v. Burchfield, 481 So. 2d 247, 254 (Miss.

1985)).

              A.     Employee Handbook

¶13.   Still, Thomas and Pilgrim argue Southern Farm Bureau “abrogated” the at-will

doctrine. They point to the company’s comprehensive employee handbook, which covered

antidiscrimination, progressive discipline, and employee investigations. They base their

claims of wrongful discharge, breach of contract, breach of good faith and fair dealing,

negligence, and gross negligence specifically and exclusively on the employee handbook.

And they claim these handbook provisions conferred substantive and procedural rights. As

support, they cite Bobbitt v. Orchard, Ltd., 603 So. 2d 356, 361 (Miss. 1992). In Bobbitt,

this Court held that an employee manual detailing discipline and termination had become part

of an employment contract that had to be followed. But there is a material difference

between the handbook in Bobbitt and the one here. In Bobbitt, there was “no express

disclaimer or contractual provision that the manual did not affect the employer’s right to



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terminate the employee at will . . . .” Id. at 362. Here, by sharp contrast, Southern Farm

Bureau’s employee handbook began with the express disclaimer, “This handbook is not a

contract of employment . . . .” Thomas and Pilgrim admit this disclaimer exists but dismiss

it as “boilerplate.” Essentially, they ask this Court to ignore the express provision at the front

of the handbook that warns the handbook is not a contract. They prefer we overlook this

disclaimer and elevate the handbook’s remaining provisions to the status of a binding

employment contract. But their request collides with the handbook’s language. It also

contradicts existing law that the at-will-employment doctrine can be altered only by “an

employment contract expressly providing to the contrary.” McArn, 626 So. 2d at 606

(emphasis added).

¶14.   Southern Farm Bureau’s employee handbook expressly stated that Thomas and

Piglrim’s at-will status was not being altered. Consequently, their claims for wrongful

discharge, breach of contract, breach of good faith and fair dealing, negligence, and gross

negligence fail as a matter of law.

¶15.   We dismiss these claims.

               B.     Public Policy

¶16.   Alternatively, Thomas and Pilgrim ask this Court to create a common-law cause of

action for wrongful termination based on an “existing yet dormant public policy against age

and/or gender discrimination.”

¶17.   Importantly, Thomas and Pilgrim are not asking that we finally recognize a cause of

action based on discrimination in the workplace. Indeed, such actions already exist. Title



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VII of the Civil Rights Act of 1964 prohibits adverse employment decisions motivated by sex

discrimination. 42 U.S.C. § 2000e et seq. (2012). And the Age Discrimination in

Employment Act of 1967 protects older employees against discrimination. 29 U.S.C. § 621

et seq. (2012). So under these statutes, Mississippi employees wrongfully terminated from

their jobs due to sex and/or age discrimination already have the ability to sue their former

employers in Mississippi courts.2 E.g., Cash Distrib. Co. v. Neely, 947 So. 2d 286 (Miss.

2007) (former employee brought wrongful-termination action under ADEA alleging age

discrimination); Partain v. Sta-Home Health Agency of Jackson, Inc., 904 So. 2d 1112,

1116 (Miss. Ct. App. 2004) (former employee brought wrongful-termination action under

Title VII alleging her termination was motivated by her gender and her pregnancy). As with

other statutory causes of action, employees are required first to exhaust their administrative

remedies—namely, by filing a complaint with the Equal Employment Opportunity

Commission. Apparently, Thomas and Pilgrim failed to do this. That is why they abandoned

any federal-law claim when their lawsuit was removed to federal court.

¶18.   In other words, by asking this Court to judicially carve out a public-policy exception

to the at-will doctrine based on discrimination, Thomas and Pilgrim are really seeking a new

common-law alternative to federal statutory claims. They are requesting this—not because

Title VII and the ADEA do not sufficiently protect their rights or align with Mississippi

public policy—but because they did not properly pursue these statutory claims.

       2
        “State courts have concurrent jurisdiction with federal district courts over Title VII
cases.” Burks v. Amite Cty. Sch. Dist., 708 So. 2d 1366, 1371 (Miss. 1998) (citing Yellow
Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 824-825, 110 S. Ct. 1566, 108 L. Ed. 2d 834
(1990)).

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¶19.   In only two circumstances has this Court recognized a common-law tort based on “a

narrow public policy exception to the employment at will doctrine.”3 McArn, 626 So. 2d at

607. In all other cases, we have deferred to the legislative process to create exceptions to the

at-will doctrine. E.g., Swindol, 194 So. 3d at 852 (observing there was no need to “judicially

graft another ‘exception’ to the employment-at-will doctrine . . . because the Legislature

already has”); Kelly v. Miss. Valley Gas Co., 397 So. 2d 874, 876 (Miss. 1981) (“Plaintiff’s

arguments in favor of a cause of action for retaliatory discharge under the facts alleged in his

bill have considerable appeal. However, the merits of his arguments are clearly for the

Legislature to assess, not the judiciary.”). Indeed, this Court’s expression of the at-will

doctrine recognizes creating exceptions is a legislative task. Under the at-will doctrine, “an

employee may be discharged at the employer’s will for good reason, bad reason, or no reason

at all, excepting only reasons independently declared legally impermissible.” McArn, 626

So. 2d at 606 (emphasis added) (quoting Shaw, 481 So. 2d at 254); see also Kelly, 397 So.

2d at 875 (recognizing that “the harshness of the terminable at will rule is subject to




       3
           These exceptions are:

       (1) an employee who refuses to participate in an illegal act . . . shall not be
       barred by the common law rule of employment at will from bringing an action
       in tort for damages against his employer; [and]

       (2) an employee who is discharged for reporting illegal acts of his employer
       to the employer or anyone else is not barred by the employment at will
       doctrine from bringing action in tort for damages against his employer.

 McArn, 626 So. 2d at 607.


                                               9
exception in light of express legislative action” (quoting Green v. Amerada-Hess Corp., 612

F.2d 212, 214 (5th Cir. 1980))).

¶20.     Terminations motivated by sex and age discrimination have already been

“independently declared legally impermissible” under Title VII and the ADEA. McArn, 626

So. 2d at 606. So, as in Swindol, there is no void necessitating this Court “judicially graft

another ‘exception’ to the employment at-will-doctrine” because exceptions for sex and/or

age discrimination already exist. Swindol, 194 So. 3d at 852. Taking as true Thomas and

Pilgrim’s allegations that the given reason for their terminations was a pretext for gender and

age discrimination, Thomas and Pilgrim had a cause of action under federal law. But they

failed to properly pursue it. And when facing a federal judge—when their case was removed

to district court—they affirmatively disavowed seeking a federal remedy. For this reason,

we decline to grant their request to judicially create a common-law cause of action—or an

exception to an already existing exception—advanced seemingly to skirt the procedural

requirements of their statutory cause of action.

       II.    Defamation and Invasion-of-Privacy Claims

¶21.   In addition to claims related to wrongful discharge, Thomas and Pilgrim asserted

claims for defamation and invasion of privacy (false light). They based these allegations on

assertions that Southern Farm Bureau told its employees the two were terminated for stealing

money from the company. We dismiss these claims too.

¶22.   Both defamation and invasion of privacy are subject to the defense of privilege.

Young v. Jackson, 572 So. 2d 378, 383 (Miss. 1990). And this Court recognizes a qualified



                                              10
privilege for statements made in the context of the employer/employee relationship. Id.

Taking the allegations in Thomas and Pilgrim’s complaint as true, Southern Farm Bureau’s

communications to its employees about why Thomas and Pilgrim were terminated fell under

this privilege.

¶23.   Thomas and Pilgrim allege Southern Farm Bureau employees in turn “disseminated

that information to the general public including members of the church where Plaintiff

Thomas’ family members attend.” While these alleged outside-of-work communications

would not have been privileged, they also are not attributable to Southern Farm Bureau, the

only defendant named in the complaint. Allegedly gossiping to non-coworkers about former

coworkers in social gatherings such as Sunday School is outside the course and scope of

employment.         Such activity neither “carr[ies] out the employer’s purpose of the

employment,” nor is it “in furtherance of the employer’s business.” Cockrell v. Pearl River

Valley Water Supply Dist., 865 So. 2d 357, 361-62 (Miss. 2004) (citing Seedkem South, Inc.

v. Lee, 391 So. 2d 990, 995 (Miss. 1980). So Southern Farm Bureau cannot be liable for

these individuals’ allegedly defamatory and tortious rumors.

       III.       Emotional-Distress Claims

¶24.   Finally, we also dismiss Thomas and Pilgrim’s claims of intentional infliction and

negligent infliction of emotional distress. Their claim for negligent infliction of emotional

distress is barred by the exclusivity provision of the Mississippi Workers’ Compensation Act.

Bowden v. Young, 120 So. 3d 971, 976 (Miss. 2013). And “damages for intentional

infliction of emotional distress are usually not recoverable in mere employment disputes.”



                                              11
Raiola v. Chevron U.S.A., Inc., 872 So. 2d 79, 85 (Miss. Ct. App. 2004). “Only in the most

unusual cases does the conduct move out of the ‘realm of an ordinary employment dispute’

into the classification of ‘extreme and outrageous,’ as required for the tort of intentional

infliction of emotional distress.” Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 654

(5th Cir. 1994) (citations omitted). Thomas and Pilgrim fail to allege “conduct . . . ‘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.’”

Bowden, 120 So. 3d at 980 (quoting Pegues v. Emerson Elec. Co., 913 F. Supp. 976, 982

(N.D. Miss. 1996)).

                                        Conclusion

¶25.   For these reasons, we reverse the trial court’s decision and render a judgment

dismissing all claims against Southern Farm Bureau.

¶26.   REVERSED AND RENDERED.

    RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.




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