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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
                                    No. 13-60088                              January 16, 2014
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
TONY CRAWFORD,

                                                 Plaintiff-Appellant,
v.

BANNUM PLACE OF TUPELO,

                                                 Defendant-Appellee.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             U.S.D.C. No. 3:10-CV-54


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Tony Crawford (“Crawford”) appeals the district
court’s summary judgment in favor of Defendant-Appellee Bannum Place of
Tupelo (“Bannum”). We affirm.
            I.     FACTUAL AND PROCEDURAL BACKGROUND
       The United States Department of Justice, Bureau of Prisons (“BOP”)
contracts with residential re-entry centers to provide housing and services to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 13-60088
federal inmates transitioning from a period of incarceration back to the
community.     Bannum is a residential re-entry center located in Tupelo,
Mississippi. Bannum hired Crawford, in February 2008 as a “counselor aide.”
Crawford did not sign an employment contract but he did sign Bannum’s
Personnel    Policies,   Practices,    and       Procedures   Handbook    (“Bannum’s
Handbook”) that delineated his rights and obligations as a Bannum employee.
Bannum’s Handbook included a section indicating that its employees were
expected to report misconduct by other employees and that they would not be
disciplined for doing so. Additionally, Crawford signed a BOP Statement of
Work (“Statement of Work”) that instructed Bannum to not restrict an
employee’s effort to report misconduct and not retaliate against any employee
who reported misconduct. Bannum’s Handbook also included, in multiple
sections, a disclaimer that unambiguously pronounced that either the
employee or Bannum could terminate the employment relationship at any time
for any reason. The Statement of Work did not include such a disclaimer.
      Crawford alleges that at around 1:00 a.m. on December 10, 2008, a
resident approached him and asked if he could go outside to smoke a cigarette.
Bannum policy prohibits residents from going outside of the facility after the
9:00 p.m. curfew. Nevertheless, Crawford told the resident to “check with
Lester.” Bobby Lester (“Lester”) was also a counselor aide and was on duty
with Crawford on December 10, 2008. Crawford claims that shortly after he
instructed the resident to check with Lester, he heard Lester say “Ah!! This is
some bull****!!” Crawford alleges that Lester then accused him of allowing
the resident to go outside to smoke after curfew. According to Crawford, Lester
became very angry, engaged in a profanity laced tirade, and threatened him.
Lester was apparently angry because he believed Crawford allowed the
resident to go outside after curfew, thereby violating Bannum policy and
jeopardizing both of their jobs. Crawford claims that he calmly explained that
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                                     No. 13-60088
he did not allow the resident to go outside and that the resident must have
misheard what he said.          Crawford’s hand written complaint to Bannum
management states that Lester then said “I don’t give a damn what they heard
and mutha f****’ if you say it again me and you gone go up! (meaning fight).”
Crawford’s deposition testimony indicates that he considered those words,
coupled with Lester’s body language, threatening.
        Crawford asserts that he reported the alleged threat to Bannum’s then
director, Cynthia Hill (“Hill”), on December 10, 2008, and that Hill told him to
“leave it alone.” According to Crawford, Hill did not address his complaint
because she did not want higher ranking Bannum officials to initiate an
investigation and preferred to handle it “in-house.” Crawford claims that on
December 15, 2008, he and Lester again became engaged in a verbal
altercation. Crawford asserts that he surreptitiously captured the incident by
audio recording so that he could provide Bannum management with concrete
evidence that his concerns about Lester were legitimate. 1                     Crawford
complained to Hill again about Lester shortly after the December 15, 2008
incident.    On December 16, 2008, Hill sent a memorandum to Bannum’s
compliance manager, Cherie Summers (“Summers”), conveying the substance
of Crawford’s complaints. Summers initiated an investigation into the matter
and both Crawford and Lester were placed on suspension during the pendency
of the investigation.
        On December 23, 2008, Summers submitted a memorandum to
Bannum’s vice president recommending that Crawford and Lester be
terminated. Crawford and Lester were officially discharged on January 20,
2009.       Summers’s memorandum recommending Crawford’s termination



        This recording was not included in the record and the substance of the December 15,
        1

2008 argument is unclear.
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included, inter alia, the following factual findings: Crawford was on duty when
residents were up after curfew and allowed to go out and smoke; Crawford sat
in the resident break room instead of the counselor aide station while on duty;
Crawford recorded a conversation between himself and another employee; and
residents apparently felt comfortable violating rules while Crawford was on
duty. Bannum noted that Crawford’s complicity in residents’ rule violations
contributed to an atmosphere of non-compliance and found that there were
“some underlying integrity issues in the facility.”
      In October 2010, Crawford filed a law suit in the district court asserting
claims for wrongful termination, negligent misrepresentation, estoppel and
detrimental reliance, breach of the duty of good faith and fair dealing, and
negligent infliction of emotional distress. Crawford’s suit alleged that he was
terminated in retaliation for his persistence in reporting and seeking redress
for the incident where he was allegedly threatened by Lester. On August 1,
2012, Bannum moved for summary judgment.              The district court granted
Bannum’s motion on January 8, 2013, and Crawford filed a timely appeal.
After a comprehensive review of the record, we AFFIRM the district court’s
summary judgment for the reasons explained below.
                               II.   DISCUSSION
      A. Standard of Review
      We review a district court’s grant of summary judgment de novo,
applying the same standards as the district court. Terrebonne Parish Sch. Bd.
v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). We view all of the evidence and draw all inferences in the light
most favorable to the nonmoving party, “and all reasonable doubts about the
facts should be resolved in favor of the nonmoving party.” Terrebonne, 310
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F.3d at 877.       “Unsubstantiated assertions, improbable inferences, and
unsupported speculation are not sufficient to defeat a motion for summary
judgment.” Nuwer v. Mariner Post-Acute Network, 332 F.3d 310, 314 (5th Cir.
2003) (citation omitted).    Because this is a diversity action, we apply
Mississippi law. See Krieser v. Hobbs, 166 F.3d 736, 739 (5th Cir. 1999).
      B. Wrongful Termination
      Crawford’s suit alleges that Bannum wrongfully terminated him because
he reported Lester’s alleged unlawful conduct and because he refused to
participate in Bannum’s illegal scheme to “cover up” Lester’s conduct.
Crawford also alleges that he was not an at-will employee because he signed
documents that precluded Bannum from terminating him for reporting a co-
employee’s misconduct.
      Bannum’s position is two-fold. First, Bannum argues that Crawford was
an at-will employee; therefore, he could be terminated at any time and for any
reason. Second, Bannum claims that they terminated Crawford because he
violated Bannum policy and not because he reported or refused to participate
in illegal activity.
      For the reasons explained below, we conclude that Crawford was an at-
will employee and that his termination was not in violation of Mississippi
public policy.
      1. The At-Will Employment Doctrine
      Mississippi adheres to the common law principle that in the absence of
an employment contract or when an employment contract is for an indefinite
term, the employment relationship may be terminated at any point by either
party. Bobbitt v. Orchard, Ltd., 603 So.2d 356, 360–61 (Miss. 1992). This
principal is commonly referred to as the at-will employment doctrine. When
applicable, the at-will employment doctrine allows either the employer or the


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                                      No. 13-60088
employee to terminate the employment relationship for “a good reason, a wrong
reason, or no reason.” Id. (citation omitted).
              a. The Bobbitt Exception
       In Bobbitt, the Mississippi Supreme Court held that when employers
distribute handbooks or policy manuals, they may create contractual
obligations that override the at-will nature of an employment relationship. Id.
at 361.    The Bobbitt court concluded that language in policy manuals or
handbooks may create an obligation on the part of the employer to “follow its
provisions in reprimanding, suspending or discharging an employee for
infractions specifically covered therein.” 2 Id. The court made clear, however,
that this obligation is nullified when there is an express disclaimer in the
manual explaining that its terms do not affect the employer’s right to
terminate the employee at will. See Id. at 362.
       In this case, Bannum’s Handbook explained that employees were
expected to report instances of misconduct to management and that Bannum
would not discipline an employee for making such a report. Nevertheless,
Bannum’s Handbook included a disclaimer that made clear that it did not
constitute an employment contract and that Bannum could terminate
Crawford “at will, at any time, with or without notice or cause.” Therefore,
Crawford’s signing Bannum’s Handbook did not create an employment
contract that overrides the at-will nature of the employment relationship. See
Hartle v. Packard Elec., 626 So.2d 106, 109 (Miss. 1993) (holding that a
disclaimer in an employer’s handbook preserves the employer’s right to



       2 We note that Crawford does not allege that he was wrongfully discharged because
he committed an “infraction” covered by Bannum’s Handbook. Crawford argues that
Bannum’s Handbook indicates that he would not be disciplined for reporting the misconduct
of another employee. He cites no authority for the proposition that Bobbitt extends to this
factual scenario and we do not decide that issue today. For other reasons explained infra, we
hold that the Bobbitt exception does not apply to Crawford’s wrongful discharge claim.
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                                      No. 13-60088
terminate an employee at-will); Perry v. Sears, Roebuck & Co., 508 So.2d 1086,
1088–89 (Miss. 1987) (holding that an employee handbook cannot be
considered a contract where it explicitly states that the employee may be
terminated at-will).
       Additionally, Bannum required that Crawford sign the Statement of
Work that outlined BOP’s expectations of its residential re-entry contractors.
Much like Bannum’s Handbook, the Statement of Work contains a provision
requiring Bannum’s employees to report misconduct. It also states that the
contractor (Bannum) shall not retaliate against an employee who reports
misconduct. However, there is no disclaimer in the Statement of Work that
demonstrates that provisions therein do not preempt the at-will nature of the
employment relationship between Bannum and its employees.                        Crawford
argues that the absence of a disclaimer in the Statement of Work invalidates
the at-will nature of his employment. We disagree.
       The Court of Appeals of Mississippi encountered a similar issue in
Senseney v. Miss. Power Co., 914 So.2d 1225 (Miss. Ct. App. 2005). 3                      In
Senseney, the plaintiff signed an employment application that “unambiguously
stated that the prospective employee agreed that employment with Mississippi
Power was on an at-will basis and that nothing in the company’s personnel
guidelines or employee handbook was intended to create an employment
contract.” Id. at 1229. The plaintiff was also provided a copy of the employer’s
corporate guidelines which outlined a framework of progressive employee
discipline ranging from “counseling sessions, to administrative warnings, to



       3The Mississippi Supreme Court has not spoken directly on this issue so we look to
the Mississippi Court of Appeals for guidance in making our “Erie guess.” See Learmonth v.
Sears, Roebuck and Co., 710 F.3d 249, 258 (5th Cir. 2013) (stating that “we defer to
intermediate state appellate courts decisions, unless convinced by other persuasive data that
the higher court of the state would decide otherwise”) (citation and internal quotation marks
omitted)).
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                                   No. 13-60088
mandatory day off, to suspensions, to discharge.”            Id. at 1226–27.     The
corporate guidelines did not contain a disclaimer that unambiguously
preserved the at-will nature of the employment relationship. Id. at 1229.
Senseney argued that because there was no disclaimer in the corporate
guidelines, the guidelines created an employment contract between Senseney
and Mississippi Power.       The court disagreed and held that “[t]hough the
disclaimer appeared in Senseney’s employment application and not within the
corporate guidelines, the disclaimer expressly placed Senseney on notice that
nothing in the corporate guidelines or in any employee handbook was intended
to create an employment contract, and that his employment was to be on an
at-will basis.” Id.
      Applying the Court of Appeals of Mississippi’s reasoning in Senseney to
the facts of this case, we conclude that the absence of a disclaimer in the
Statement of Work or any other documents Bannum may have provided
Crawford does not negate the clear and unambiguous pronouncement in
Bannum’s Handbook that Crawford was an at-will employee. 4 Accordingly, we
hold that the Bobbitt exception does not apply to the facts of this case.
             b. The McArn Exception
      Crawford also argues that Bannum’s decision to terminate him violated
Mississippi public policy. Mississippi recognizes two public policy exceptions
to the at-will employment doctrine: (1) the reporting of illegal conduct
exception and (2) the refusing to participate in illegal activity exception. See
McArn v. Allied Bruce-Terminix Co., Inc., 626 So.2d 603 (Miss. 1993).




      4 Crawford makes similar arguments with respect to other documents that were
provided to him as part of his employment with Bannum. To the extent that any of these
documents did not include a disclaimer, we likewise conclude that the disclaimer in
Bannum’s Handbook was sufficient to put Crawford on notice that he was an at-will
employee.
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                                 No. 13-60088
Crawford asserts that both exceptions apply in this case. We disagree and will
address each of the exceptions in turn.
      Reporting the Illegal Conduct of a Co-Employee
      In McArn, the court stated that “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.”       Id. at 607.    In subsequent cases, the
Mississippi Supreme Court made clear that the exception also applies when an
employee reports the purported illegal activities of a co-employee, but only if
those acts relate to the employer’s business. See DeCarlo v. Bonus Store, Inc.
989 So.2d 351, 357 (Miss. 2008); Jones v. Fluor Daniel Servs. Corp., 959 So.2d
1044, 1047–48 (Miss. 2007) (stating that the reporting of illegal acts exception
has been applied only when the illegal act “had something to do with the
business itself”).
      There are several reasons why this narrow public policy exception is
inapplicable under these facts. See Harris v. Miss. Valley State Univ., 873
So.2d 970, 986 (Miss. 2004) (stating that the Mississippi Supreme Court carved
out a “narrow public policy exception” to the at-will employment doctrine);
Jones, 959 So.2d at 1047 (characterizing the McArn exception as “very
narrow”). First, Crawford failed to demonstrate that the purported illegal act
“had something to do with” Bannum’s business. See Jones, 959 So.2d at 1048.
In our view, the alleged threat was not related to Bannum’s business of
transitioning federal offenders from incarceration to the community. Instead,
it was a communication of personal frustration from Lester to Crawford. The
Mississippi Supreme Court’s decision in Jones is instructive on this issue. In
that case, African-American day laborers alleged that they were terminated
because they complained about their supervisor’s use of racial slurs. Id. at
1045–46. The plaintiffs claimed that their supervisor’s conduct amounted to a
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                                 No. 13-60088
violation of a disturbance of the peace statute or a provoking breach of peace
statute. Id. at 1047. The court held that even if the supervisor violated one of
the statutes, the alleged violation had nothing to do with the employer’s
business. Id.
      Here, even if we assume that Lester’s comments rise to the level of a
criminal threat, we are not convinced that the alleged threat had anything to
do with Bannum’s business. We acknowledge that the alleged threat was made
during the course of a work-related dispute. Nevertheless, it was a product of
Lester’s personal frustration with Crawford and had nothing to do with
Bannum’s business purpose. Much like the offending supervisor in Jones who
used racial slurs, Lester’s personal predilection for coarse language and
aggressive discourse falls well outside of the scope of Bannum’s business
purpose.
      Second, Crawford failed to show that he reported the alleged illegal
conduct because it was illegal. See id. at 1048. The Jones court made note of
the fact that the plaintiffs never considered their co-employee’s conduct to be
criminal, but rather reported it because it “merely bothered” them. Id. In
doing so, the court drew a distinction between conduct that a plaintiff reported
because he believed it to be illegal and conduct reported for other reasons. Only
the former falls within the ambit of Mississippi’s narrow public policy
exception. See id. Crawford’s deposition testimony makes clear that he never
believed Lester’s conduct was illegal. Naturally, it follows that Crawford did
not report Lester’s conduct because it was illegal.
      Third, Crawford did not sufficiently establish a causal nexus “between
the reporting of the alleged misconduct and the decision process resulting in
the discharge.” Dismuke v. City of Indianola, 32 F. App’x 126, *4 (5th Cir.
2002) (per curiam) (unpublished) (citing Hust v. Forrest Gen. Hosp., 762 So.2d
298, 301–302 (Miss. 2000)). The record is devoid of any evidence showing that
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                                    No. 13-60088
Bannum     terminated    Crawford      because   he   reported   Lester’s   alleged
misconduct. Viewing the evidence in the light most favorable to Crawford, the
record shows that Bannum’s decision to terminate Crawford was based on its
findings that he violated Bannum’s policies. We note the distinction between
Crawford’s being terminated because of his report and Crawford’s being
terminated, in a sense, as a result of his report. The record demonstrates that
Crawford’s report likely set in motion a chain of events that ultimately lead to
his termination. Crawford conflates the consequences of his decision to report
with the cause of his termination. Such a conflation fails as a means to escape
the constrictions of the at-will employment doctrine.
      Accordingly, we conclude that there are no genuine issues of material
fact as to whether Bannum’s decision to terminate Crawford violated
Mississippi’s public policy exception that protects employees who report the
unlawful conduct of a co-employee.
      Refusing to Participate in Illegal Activity
      Moreover, we are unpersuaded by Crawford’s argument that the McArn
exception applies because he refused to participate in criminal activity.
According to Crawford, Bannum’s instruction to “leave [the alleged threat]
alone” was an attempt to conceal a material fact from the federal government
in violation of 18 U.S.C. § 1001.
      18 U.S.C. § 1001(a) provides in relevant part:
      (a) Except as otherwise provided in this section, whoever, in any
      matter within the jurisdiction of the executive, legislative, or
      judicial branch of the Government of the United States, knowingly
      and willfully–
      (1) falsifies, conceals, or covers up by any trick scheme or device a
      material fact;
      (2) makes any materially false, fictitious, or fraudulent statement
      or representation; or



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                                  No. 13-60088
      (3) makes or uses any false writing or document knowing the same
      to contain any materially false, fictitious, or fraudulent statement
      or entry;
      shall be fined under this title or imprisoned not more than 5 years,
      or both.

      In support of his argument, Crawford relies on this court’s opinion in
Drake v. Advance Constr. Serv., 117 F.3d 203 (5th Cir. 1997). In that case, the
plaintiff alleged that his employer instructed him to make false statements to
a government agency in violation of 18 U.S.C. § 1001. Id. at 204. Crawford’s
reliance on Drake is misguided. Unlike the plaintiff in Drake, Crawford did
not produce evidence that created a fact issue with respect to whether Bannum
officials directed him to commit a crime. See Kyle v. Circus Circus Miss., Inc.,
430 F. App’x 247, 252 (5th Cir. 2011) (per curiam) (unpublished) (holding that
to invoke the McArn exception, the plaintiff must demonstrate that he received
a directive to engage in criminal activity). Crawford failed to cite any authority
supporting the proposition that a residential re-entry center’s failure to report
to the BOP an allegation of a threat by one employee against another violates
§ 1001.    Moreover, the record demonstrates that the complaint about the
alleged threat was actually documented by Bannum’s director and forwarded
to its compliance manager only six days after it occurred. The record also
shows that the complaint was investigated and ultimately resulted in Lester’s
termination. These facts negate Crawford’s conclusory assertion that Bannum
engaged in a “cover up” of Lester’s alleged criminal activity.
      Therefore, we conclude that there are no genuine issues of material fact
as to whether Bannum’s decision to terminate Crawford violated Mississippi’s
public policy exception that protects employees who refuse to participate in
illegal activity.




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                                   No. 13-60088
        C. Negligent Misrepresentation
        To prove a negligent misrepresentation claim, Crawford must establish
the following:
        (1) a misrepresentation or omission of a fact; (2) that the
        representation or omission is material or significant; (3) that the
        person/entity charged with the negligence failed to exercise the
        degree of diligence and expertise the public is entitled to expect of
        such persons/entities; (4) that the plaintiff reasonably relied upon
        the misrepresentation or omission; and (5) that the plaintiff
        suffered damages as a direct and proximate result of such
        reasonable reliance.
Holland v. Peoples Bank & Trust Co., 3 So.3d 94, 101 (Miss. 2008)
(citations omitted).
        Crawford claims that Bannum failed to exercise reasonable care in
advising its employees, through its handbook, that they should report
disputes with other employees and that they would not be disciplined for
doing     so.     Crawford    argues    that   he     relied   on   Bannum’s
misrepresentation that they would not discipline him for reporting
another employee’s misconduct. This claim is without merit. As stated
previously, we conclude that there are no genuine issues of material fact
with respect to whether Bannum terminated Crawford because he
reported Lester’s alleged misconduct. Therefore, Crawford is unable to
prove that Bannum made a factual misrepresentation upon which he
reasonably relied and suffered damages. See Levens v. Campbell, 733
So.2d 753, 762–63 (Miss. 1999) (holding that the plaintiff’s failure to
demonstrate that the defendant made a factual misrepresentation was
fatal to her negligent misrepresentation claim).
        Accordingly, Bannum is entitled to judgment as a matter of law on
Crawford’s negligent misrepresentation claim.



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                                 No. 13-60088
      D. Estoppel and Detrimental Reliance
      Crawford asserts that Bannum is estopped from raising “certain
legal defenses which might otherwise be available” because it provided
“direct and clear instruction that its employees should report any dispute
with a co-worker” and that employees would not suffer discipline for
making such a report.
      “In order to prove a claim of estoppel, the plaintiff must prove: (1)
a representation that later proves to be untrue; (2) an action by the
person seeking to invoke the doctrine, such action being undertaken on
justifiable reliance of the representation; and (3) a resulting detriment
to that person arising from his action.” Suddith v. Univ. of S. Miss., 977
So.2d 1158, 1180 (Miss. Ct. App. 2007).
      Crawford failed to prove that Bannum made any representations
that later proved to be untrue.         As stated previously, Bannum
sufficiently advised Crawford that he was an at-will employee and the
record does not show that his termination contravened any assurances
made by Bannum through its handbook or other documents.
Accordingly, Bannum is entitled to judgment as a matter of law on this
claim.
      E. Breach of the Duty of Good Faith and Fair Dealing
      The Mississippi Supreme Court has expressly stated that it does
not recognize a cause of action based upon a breach of the duty of good
faith and fair dealing arising from an at-will employment relationship.
Young v. N. Miss. Med. Ctr., 783 So.2d 661, 663 (Miss. 2001). Our
conclusion that Crawford was an at-will employee renders this claim
meritless.




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                                   No. 13-60088
      F. Negligent Infliction of Emotional Distress
      Crawford alleges that Bannum was “negligent in failing to conform
its policies to the policies communicated to its employees and that this
negligence has caused [Crawford] to suffer emotional distress,
identifiable through physical manifestations.” The Mississippi Supreme
Court has made clear that this claim is barred by the exclusivity
provision of the Mississippi Workers’ Compensation Act (“the Act”).
Miss. Code Ann § 71-3-9; see Franklin Corp v. Tedford, 18 So.3d 215, 221
(Miss. 2009) (stating that the Act provides tort immunity for causes of
action that are not based upon an “actual intent to injure” the employee)
(citation omitted); Stevens v. FMC Corp., 515 So.2d 928, 931 (Miss. 1987)
(holding that because plaintiff’s claim sounded in negligence, the Act
provided his exclusive remedy and he was “therefore barred from
pursuing a common law tort remedy”). Accordingly, Bannum is entitled
to judgment as a matter of law on this claim.
                            III.    CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s summary
judgment in favor of Bannum.




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